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United States Supreme Court BISHOP v. WOOD(1976) No. 74-1303 Argued: March 1, 1976Decided: June 10, 1976 </s> On respondent Chief of Police's recommendation, respondent City Manager terminated petitioner's employment as a policeman without a hearing, telling him privately that the dismissal was based on a failure to follow orders, poor attendance at police training classes, causing low morale, and conduct unsuited to an officer. A city ordinance provides that a permanent city employee (as petitioner was classified) may be discharged if he fails to perform work up to the standard of his classification, or if he is negligent, inefficient, or unfit to perform his duties. Petitioner brought suit against respondents, claiming that as a "permanent employee" he had a constitutional right to a pretermination hearing; that the ordinance, even though not expressly so providing, should be read to prohibit discharge for any reason other than those specified and therefore to confer tenure on all permanent employees; that his period of service, together with his "permanent" classification, gave him a sufficient expectation of continued employment to constitute a protected property interest under the Due Process Clause of the Fourteenth Amendment; and that the false explanation for his discharge deprived him of interest in liberty protected by that Clause. During pretrial discovery petitioner was again advised of the reasons for his dismissal. The District Court granted respondents' motion for a summary judgment, holding, on the basis of its understanding of state law, that petitioner "held his position at the will and pleasure of the city." The Court of Appeals affirmed. Held: </s> 1. Under the District Court's tenable view of state law, which was upheld by the Court of Appeals and which will be accepted by this Court in the absence of any authoritative state-court interpretation of the ordinance involved, petitioner's discharge did not deprive him of a property interest protected by the Due Process Clause of the Fourteenth Amendment. Pp. 343-347. </s> 2. Assuming that the explanation for petitioner's discharge was false, as this Court must do since summary judgment was entered against him, such false explanation did not deprive him of an interest in liberty protected by that Clause. Pp. 347-349. [426 U.S. 341, 342] </s> (a) Since the City Manager's private oral communication to petitioner of the reasons for his discharge was never made public, it cannot properly form the basis for a claim that petitioner's interest in his "good name, reputation, honor, or integrity" was thereby impaired. Nor can the communication of such reasons during pretrial discovery provide retroactive support for such claim, since it was made in the course of a judicial proceeding that did not commence until after petitioner had suffered his alleged injury. Pp. 348-349. </s> (b) The truth or falsity of the City Manager's explanation determines whether or not his decision to discharge petitioner was correct or prudent, but neither enhances nor diminishes petitioner's claim that his constitutionally protected interest in liberty was impaired. P. 349. </s> Affirmed. See 498 F.2d 1341. </s> STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 350. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 355. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 361. </s> Norman B. Smith argued the cause and filed briefs for petitioner. </s> Charles E. Burgin argued the cause and filed a brief for respondents. * </s> [Footnote * Stephen J. Pollak and Richard M. Sharp filed a brief for the Coalition of American Public Employees as amicus curiae urging reversal. </s> MR. JUSTICE STEVENS delivered the opinion of the Court. </s> Acting on the recommendation of the Chief of Police, the City Manager of Marion, N.C., terminated petitioner's employment as a policeman without affording him a hearing to determine the sufficiency of the cause for his discharge. Petitioner brought suit contending [426 U.S. 341, 343] that since a city ordinance classified him as a "permanent employee," he had a constitutional right to a pretermination hearing. 1 During pretrial discovery petitioner was advised that his dismissal was based on a failure to follow certain orders, poor attendance at police training classes, causing low morale, and conduct unsuited to an officer. Petitioner and several other police officers filed affidavits essentially denying the truth of these charges. The District Court granted defendants' motion for summary judgment. 2 The Court of Appeals affirmed, 3 and we granted certiorari, 423 U.S. 890 . </s> The questions for us to decide are (1) whether petitioner's employment status was a property interest protected by the Due Process Clause of the Fourteenth Amendment, 4 and (2) assuming that the explanation for his discharge was false, whether that false explanation deprived him of an interest in liberty protected by that Clause. </s> I </s> Petitioner was employed by the city of Marion as a probationary policeman on June 9, 1969. After six months he became a permanent employee. He was dismissed on March 31, 1972. He claims that he had either an express or an implied right to continued employment. [426 U.S. 341, 344] </s> A city ordinance provides that a permanent employee may be discharged if he fails to perform work up to the standard of his classification, or if he is negligent, inefficient, or unfit to perform his duties. 5 Petitioner first contends that even though the ordinance does not expressly so provide, it should be read to prohibit discharge for any other reason, and therefore to confer tenure on all permanent employees. In addition, he contends that his period of service, together with his "permanent" classification, gave him a sufficient expectancy of continued employment to constitute a protected property interest. </s> A property interest in employment can, of course, be created by ordinance, or by an implied contract. 6 In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law. 7 </s> [426 U.S. 341, 345] The North Carolina Supreme Court has held that an enforceable expectation of continued public employment in that State can exist only if the employer, by statute or contract, has actually granted some form of guarantee. Still v. Lance, 279 N.C. 254, 182 S. E. 2d 403 (1971). Whether such a guarantee has been given can be determined only by an examination of the particular statute or ordinance in question. </s> On its face the ordinance on which petitioner relies may fairly be read as conferring such a guarantee. However, such a reading is not the only possible interpretation; the ordinance may also be construed as granting no right to continued employment but merely conditioning an employee's removal on compliance with certain specified procedures. 8 We do not have any authoritative interpretation of this ordinance by a North Carolina state court. We do, however, have the opinion of the United States District Judge who, of course, sits in North Carolina and practiced law there for many years. Based on his understanding of state law, he concluded that petitioner "held his position at the will and pleasure of the city." 9 This construction of North [426 U.S. 341, 346] Carolina law was upheld by the Court of Appeals for the Fourth Circuit, albeit by an equally divided court. In comparable circumstances, this Court has accepted the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state-law issue without such guidance might have justified a different conclusion. 10 </s> [426 U.S. 341, 347] </s> In this case, as the District Court construed the ordinance, the City Manager's determination of the adequacy of the grounds for discharge is not subject to judicial review; the employee is merely given certain procedural rights which the District Court found not to have been violated in this case. The District Court's reading of the ordinance is tenable; it derives some support from a decision of the North Carolina Supreme Court, Still v. Lance, supra; and it was accepted by the Court of Appeals for the Fourth Circuit. These reasons are sufficient to foreclose our independent examination of the state-law issue. </s> Under that view of the law, petitioner's discharge did not deprive him of a property interest protected by the Fourteenth Amendment. </s> II </s> Petitioner's claim that he has been deprived of liberty has two components. He contends that the reasons given for his discharge are so serious as to constitute a stigma that may severely damage his reputation in the community; in addition, he claims that those reasons were false. </s> In our appraisal of petitioner's claim we must accept his version of the facts since the District Court granted summary judgment against him. 11 His evidence established [426 U.S. 341, 348] that he was a competent police officer; that he was respected by his peers; that he made more arrests than any other officer on the force; that although he had been criticized for engaging in high-speed pursuits, he had promptly heeded such criticism; and that he had a reasonable explanation for his imperfect attendance at police training sessions. We must therefore assume that his discharge was a mistake and based on incorrect information. </s> In Board of Regents v. Roth, 408 U.S. 564 , we recognized that the nonretention of an untenured college teacher might make him somewhat less attractive to other employers, but nevertheless concluded that it would stretch the concept too far "to suggest that a person is deprived of `liberty' when he simply is not rehired in one job but remains as free as before to seek another." Id., at 575. This same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge. </s> In this case the asserted reasons for the City Manager's decision were communicated orally to the petitioner in private and also were stated in writing in answer to interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner's interest in his "good name, reputation, honor, or integrity" 12 was thereby impaired. And since the latter communication was made in the course of a judicial proceeding which did not commence until after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim. A contrary [426 U.S. 341, 349] evaluation of either explanation would penalize forthright and truthful communication between employer and employee in the former instance, and between litigants in the latter. </s> Petitioner argues, however, that the reasons given for his discharge were false. Even so, the reasons stated to him in private had no different impact on his reputation than if they had been true. And the answers to his interrogatories, whether true or false, did not cause the discharge. The truth or falsity of the City Manager's statement determines whether or not his decision to discharge the petitioner was correct or prudent, but neither enhances nor diminishes petitioner's claim that his constitutionally protected interest in liberty has been impaired. 13 A contrary evaluation of his contention would enable every discharged employee to assert a constitutional claim merely by alleging that his former supervisor made a mistake. </s> The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. 14 We must accept the [426 U.S. 341, 350] harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. The United States Constitution cannot feasibly be construed to require federal judicial review for every such error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be corrected in other ways. The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions. </s> The judgment is affirmed. </s> So ordered. </s> Footnotes [Footnote 1 He relied on 42 U.S.C. 1983, invoking federal jurisdiction under 28 U.S.C. 1343 (3). He sought reinstatement and backpay. The defendants were the then City Manager, Chief of Police, and the city of Marion. Since the city is not a "person" within the meaning of the statute, it was not a proper defendant. Monroe v. Pape, 365 U.S. 167, 187 -192. </s> [Footnote 2 377 F. Supp. 501 (WDNC 1973). </s> [Footnote 3 A three-judge panel of the Court of Appeals affirmed, with one judge dissenting, 498 F.2d 1341 (CA4 1974); then, after granting a rehearing en banc, the court affirmed without opinion by an equally divided court. </s> [Footnote 4 "[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Const., Amdt. 14. </s> [Footnote 5 Article II, 6, of the Personnel Ordinance of the city of Marion, reads as follows: </s> "Dismissal. A permanent employee whose work is not satisfactory over a period of time shall be notified in what way his work is deficient and what he must do if his work is to be satisfactory. If a permanent employee fails to perform work up to the standard of the classification held, or continues to be negligent, inefficient, or unfit to perform his duties, he may be dismissed by the City Manager. Any discharged employee shall be given written notice of his discharge setting forth the effective date and reasons for his discharge if he shall request such a notice." </s> [Footnote 6 In Perry v. Sindermann, 408 U.S. 593, 601 , the Court said that a "person's interest in a benefit is a `property' interest for due process purposes if there are . . . rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." </s> [Footnote 7 "Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law - rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 577 . </s> [Footnote 8 This is not the construction which six Members of this Court placed on the federal regulations involved in Arnett v. Kennedy, 416 U.S. 134 . In that case the Court concluded that because the employee could only be discharged for cause, he had a property interest which was entitled to constitutional protection. In this case, a holding that as a matter of state law the employee "held his position at the will and pleasure of the city" necessarily establishes that he had no property interest. The Court's evaluation of the federal regulations involved in Arnett sheds no light on the problem presented by this case. </s> [Footnote 9 "Under the law in North Carolina, nothing else appearing, a contract of employment which contains no provision for the duration or termination of employment is terminable at the will of either party irrespective of the quality of performance by the other party. By statute, G. S. 115-142 (b), a county board of education in North Carolina may terminate the employment of a teacher at [426 U.S. 341, 346] the end of the school year without filing charges or giving its reasons for such termination, or granting the teacher an opportunity to be heard. Still v. Lance, 279 N.C. 254, 182 S. E. 2d 403 (1971). </s> "It is clear from Article II, Section 6, of the City's Personnel Ordinance, that the dismissal of an employee does not require a notice or a hearing. Upon request of the discharged employee, he shall be given written notice of his discharge setting forth the effective date and the reasons for the discharge. It thus appears that both the city ordinance and the state law have been complied with. </s> "It further appears that the plaintiff held his position at the will and pleasure of the city." 377 F. Supp., at 504. </s> [Footnote 10 See United States v. Durham Lumber Co., 363 U.S. 522 . In Propper v. Clark, 337 U.S. 472, 486 -487, the Court stated: "The precise issue of state law involved, i. e., whether the temporary receiver under 977-b of the New York Civil Practice Act is vested with title by virtue of his appointment, is one which has not been decided by the New York courts. Both the District Court and the Court of Appeals faced this question and answered it in the negative. In dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable." In Township of Hillsborough v. Cromwell, 326 U.S. 620, 629 -630, the Court stated: "Petitioner makes an extended argument to the effect that Duke Power Co. [v. State Board, 129 N. J. L. 449, 30 A. 2d 416, 131 N. J. L. 275, 36 A. 2d 201,] is not a controlling precedent on the local law question on which the decision below turned. On such questions we pay great deference to the views of the judges of those courts `who are familiar with the intricacies and trends of local law and practice.' Huddleston v. Dwyer, 322 U.S. 232, 237 . We are unable to say that the District Court and the Circuit Court of Appeals erred in applying to this case the rule of Duke Power Co. v. State Board, which involved closely analogous facts." And in MacGregor v. State Mut. Life Assur. Co., [426 U.S. 341, 347] 315 U.S. 280, 281 , the Court stated: "No decision of the Supreme Court of Michigan, or of any other court of that State, construing the relevant Michigan law has been brought to our attention. In the absence of such guidance, we shall leave undisturbed the interpretation placed upon purely local law by a Michigan federal judge of long experience and by three circuit judges whose circuit includes Michigan." </s> [Footnote 11 In granting summary judgment for respondents, the District Court was required to resolve all genuine disputes as to material facts in favor of petitioner. Fed. Rule Civ. Proc. 56 (c); Arnett v. Kennedy, supra, at 139-140. </s> [Footnote 12 See Wisconsin v. Constantineau, 400 U.S. 433, 437 , and the discussion of the interest in reputation allied to employment in Paul v. Davis, 424 U.S. 693 . </s> [Footnote 13 Indeed, the impact on petitioner's constitutionally protected interest in liberty is no greater even if we assume that the City Manager deliberately lied. Such fact might conceivably provide the basis for a state-law claim, the validity of which would be entirely unaffected by our analysis of the federal constitutional question. </s> [Footnote 14 The cumulative impression created by the three dissenting opinions is that this holding represents a significant retreat from settled practice in the federal courts. The fact of the matter, however, is that the instances in which the federal judiciary has required a state agency to reinstate a discharged employee for failure to provide a pretermination hearing are extremely rare. The reason is clear. For unless we were to adopt MR. JUSTICE BRENNAN'S remarkably innovative suggestion that we develop a federal common law of property rights, or his equally far-reaching view that almost every discharge implicates a constitutionally protected liberty interest, the [426 U.S. 341, 350] ultimate control of state personnel relationships is, and will remain, with the States; they may grant or withhold tenure at their unfettered discretion. In this case, whether we accept or reject the construction of the ordinance adopted by the two lower courts, the power to change or clarify that ordinance will remain in the hands of the City Council of the city of Marion. </s> MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting. </s> Petitioner was discharged as a policeman on the grounds of insubordination, "causing low morale," and "conduct unsuited to an officer." Ante, at 343. It is difficult to imagine a greater "badge of infamy" that could be imposed on one following petitioner's calling; in a profession in which prospective employees are invariably investigated, petitioner's job prospects will be severely constricted by the governmental action in this case. Although our case law would appear to require that petitioner thus be accorded an opportunity "to clear his name" of this calumny, see e. g., Board of Regents v. Roth, 408 U.S. 564, 573 , and n. 12 (1972); Arnett v. Kennedy, 416 U.S. 134, 157 (1974) (opinion [426 U.S. 341, 351] of REHNQUIST, J.), the Court condones this governmental action and holds that petitioner was deprived of no liberty interest thereby. </s> Paul v. Davis, 424 U.S. 693 (1976), a decision overtly hostile to the basic constitutional safeguards of the Due Process Clauses of the Fifth and Fourteenth Amendments that I had hoped would be a "short-lived aberration," id., at 735 (BRENNAN, J., dissenting), held that the "interest in reputation asserted in [Paul] is neither `liberty' nor `property' guaranteed against state deprivation without due process of law." Id., at 712. Accordingly, it found inapplicable the rule that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), and cases cited therein. In so holding, the Court eviscerated the substance of a long line of prior cases, see, e. g., Anti-Fascist Comm. v. McGrath, 341 U.S. 123 (1951); Cafeteria Workers v. McElroy, 367 U.S. 886 (1961); Board of Regents v. Roth, supra, by confining their protection of "liberty" to situations in which the State inflicts damage to a government employee's "good name, reputation, honor, or integrity" in the process of terminating his employment. See Paul v. Davis, supra, at 708. Compare id., at 709, 710, with id., at 732-733 (BRENNAN, J., dissenting). 1 Today the Court effectively destroys even that last vestige of protection for "liberty" by holding that a State may tell an employee that he is being fired for some nonderogatory reason, and then turn around and inform prospective employers that the employee [426 U.S. 341, 352] was in fact discharged for a stigmatizing reason that will effectively preclude future employment. </s> The Court purports to limit its holding to situations in which there is "no public disclosure of the reasons for the discharge," ante, at 348, but in this case the stigmatizing reasons have been disclosed, and there is no reason to believe that respondents will not convey these actual reasons to petitioner's prospective employers. 2 The Court responds by asserting that since the stigma was imposed "after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim." Ibid. But the "claim" does not arise until the State has officially branded petitioner in some way, and the purpose of the due process hearing is to accord him an opportunity to clear his name; merely because the derogatory information is filed in respondents' records and no "publication" occurs until shortly after his discharge from employment does not subvert the fact that a postdeprivation hearing to accord petitioner an opportunity to clear his name has been contemplated by our cases. 3 </s> [426 U.S. 341, 353] Even under Paul v. Davis, respondents should be required to accord petitioner a due process hearing in which he can attempt to vindicate his name; this further expansion of those personal interests that the Court simply writes out of the "life, liberty, or property" Clauses of the Fifth and Fourteenth Amendments is simply another curtailment of precious constitutional safeguards that marks too many recent decisions of the Court. </s> I also fully concur in the dissenting opinions of MR. JUSTICE WHITE and MR. JUSTICE BLACKMUN, which forcefully demonstrate the Court's error in holding that petitioner was not deprived of "property" without due process of law. I would only add that the strained reading of the local ordinance, which the Court deems to be "tenable," ante, at 347, cannot be dispositive of the existence vel non of petitioner's "property" interest. There is certainly a federal dimension to the definition of "property" in the Federal Constitution; cases such as Board of Regents v. Roth, supra, held merely that "property" interests encompass those to which a person has "a legitimate claim of entitlement," 408 U.S., at 577 , and can arise from "existing rules or understandings" that derive from "an independent source such as state law." Ibid. (emphasis supplied). But certainly, at least before a state law is definitively construed as not securing a "property" interest, the relevant inquiry is whether it was objectively reasonable for the employee to believe he could rely on continued employment. Cf. ibid. ("It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined." 4 ) At a minimum, this would require in this [426 U.S. 341, 354] case an analysis of the common practices utilized and the expectations generated by respondents, and the manner in which the local ordinance would reasonably be read by respondents' employees. 5 These disputed issues of fact are not meet for resolution, as they were on summary judgment, and would thus at a minimum require a remand for further factual development in the District Court. </s> These observations do not, of course, suggest that a "federal court is . . . the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies." Ante, at 349. However, the federal courts are the appropriate forum for ensuring that the constitutional mandates of due process are followed by those agencies of government making personnel decisions that pervasively influence the lives of those affected thereby; the fundamental premise of the Due Process Clause is that those procedural safeguards will help the government avoid the "harsh fact" of "incorrect or ill-advised personnel decisions." Ante, at 350. [426 U.S. 341, 355] Petitioner seeks no more than that, and I believe that his "property" interest in continued employment and his "liberty" interest in his good name and reputation dictate that he be accorded procedural safeguards before those interests are deprived by arbitrary or capricious government action. </s> [Footnote 1 The Court in Paul also ignored the clear import of Goss v. Lopez, 419 U.S. 565 (1975); Wisconsin v. Constantineau, 400 U.S. 433 (1971); and Jenkins v. McKeithen, 395 U.S. 411 (1969). See Paul v. Davis, 424 U.S., at 729 -733 (BRENNAN, J., dissenting). </s> [Footnote 2 It is only common sense, to be sure, that prospective employers will inquire as to petitioner's employment during the 33 months in which he was in respondents' service. </s> [Footnote 3 The Court asserts that to provide petitioner with a postdeprivation hearing when the stigmatizing reasons become known during litigation "would penalize forthright and truthful communication . . . between litigants." Ante, at 349. Of course, there are various sanctions under our judicial system to ensure that testimony is "forthright and truthful" without necessitating denial of petitioner's due process rights. And I suppose the Court would declare that according a discharged employee a postdeprivation hearing as soon as it is clear his former employer is stigmatizing his name when it communicates with prospective employers would similarly discourage "forthright and truthful" communication between employers in that situation. However, the purpose of the due process hearing is to provide petitioner a mechanism for clearing his name of a cloud that is not in fact "truthful." </s> [Footnote 4 By holding that States have "unfettered discretion" in defining "property" for purposes of the Due Process Clause of the Federal Constitution, see ante, at 349-350, n. 14, the Court is, as my Brother WHITE argues, effectively adopting the analysis rejected by a majority [426 U.S. 341, 354] of the Court in Arnett v. Kennedy, 416 U.S. 134 (1974). More basically, the Court's approach is a resurrection of the discredited rights/privileges distinction, for a State may now avoid all due process safeguards attendant upon the loss of even the necessities of life, cf. Goldberg v. Kelly, 397 U.S. 254 (1970), merely by labeling them as not constituting "property." See also, e. g., Bell v. Burson, 402 U.S. 535 (1971); Fuentes v. Shevin, 407 U.S. 67 (1972); Morrissey v. Brewer, 408 U.S. 471 (1972). </s> [Footnote 5 For example, petitioner was hired for a "probationary" period of six months, after which he became a "permanent" employee. No reason appears on the record for this distinction, other than the logical assumption, confirmed by a reasonable reading of the local ordinance, that after completion of the former period, an employee may only be discharged for "cause." As to respondents' personnel practices, it is important to note that in a department which currently employs 17 persons, petitioner's was the only discharge, for cause or otherwise, during the period of over three years from the time of his hiring until the time of pretrial discovery. </s> MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join, dissenting. </s> I dissent because the decision of the majority rests upon a proposition which was squarely addressed and in my view correctly rejected by six Members of this Court in Arnett v. Kennedy, 416 U.S. 134 (1974). </s> Petitioner Bishop was a permanent employee of the Police Department of the city of Marion, N.C. The city ordinance applicable to him provides: </s> "Dismissal. A permanent employee whose work is not satisfactory over a period of time shall be notified in what way his work is deficient and what he must do if his work is to be satisfactory. If a permanent employee fails to perform work up to the standard of the classification held, or continues to be negligent, inefficient, or unfit to perform his duties, he may be dismissed by the City Manager. Any discharged employee shall be given written notice of his discharge setting forth the effective date and reasons for his discharge if he shall request such a notice." (Emphasis added.) </s> The second sentence of this ordinance plainly conditions petitioner's dismissal on cause - i. e., failure to perform up to standard, negligence, inefficiency, or unfitness to perform the job. The District Court below did not otherwise construe this portion of the ordinance. In the only part of its opinion rejecting petitioner's claim that the ordinance gave him a property interest in his job, [426 U.S. 341, 356] the District Court said, in an opinion predating this Court's decision in Arnett v. Kennedy, supra: </s> "It is clear from Article II, Section 6, of the City's Personnel Ordinance, that the dismissal of an employee does not require a notice or a hearing. Upon request of the discharged employee, he shall be given written notice of his discharge setting forth the effective date and the reasons for the discharge. It thus appears that both the city ordinance and the state law have been complied with." 377 F. Supp. 501, 504 (WDNC 1973). </s> Thus in concluding that petitioner had no "property interest" in his job entitling him to a hearing on discharge and that he held his position "at the will and pleasure of the city," ibid., the District Court relied on the fact that the ordinance described its own procedures for determining cause, which procedures did not include a hearing. The majority purports, ante, at 345, and n. 8, to read the District Court's opinion as construing the ordinance not to condition dismissal on cause, and, if this is what the majority means, its reading of the District Court's opinion is clearly erroneous for the reasons just stated. 1 However, later in its opinion the majority appears [426 U.S. 341, 357] to eschew this construction of the District Court's opinion and of the ordinance. In the concluding paragraph of its discussion of petitioner's property interest, the majority holds that since neither the ordinance nor state law provides for a hearing, or any kind of review of the City Manager's dismissal decision, petitioner had no enforceable property interest in his job. The majority concludes: </s> "In this case, as the District Court construed the ordinance, the City Manager's determination of the adequacy of the grounds for discharge is not subject to judicial review; the employee is merely given certain procedural rights which the District Court found not to have been violated in this case. The District Court's reading of the ordinance is tenable . . . ." Ante, at 347. (Emphasis added.) </s> The majority thus implicitly concedes that the ordinance supplies the "grounds" for discharge and that the City Manager must determine them to be "adequate" before he may fire an employee. The majority's holding that petitioner had no property interest in his job in spite of the unequivocal language in the city ordinance that he may be dismissed only for certain kinds of cause rests, then, on the fact that state law provides no procedures for assuring that the City Manager dismiss him only for cause. The right to his job apparently given by the first two sentences of the ordinance is thus redefined, according to the majority, by the procedures provided for in the third sentence and as redefined is infringed only if the procedures are not followed. </s> This is precisely the reasoning which was embraced by only three and expressly rejected by six Members of this Court in Arnett v. Kennedy, supra. There a federal employee had "a statutory expectancy that he not be removed other than for `such cause as will promote [426 U.S. 341, 358] the efficiency of [the] service.'" 416 U.S., at 151 -152 (opinion of REHNQUIST, J., joined by BURGER, C. J., and STEWART, J.). The three Justices whose views were rejected by a majority of the Court went on to say: </s> "But the very section of the statute which granted him that right . . . expressly provided also for the procedure by which `cause' was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. . . ." Id., at 152. </s> The three Justices went on: </s> "Here the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest. . . ." Id., at 155. </s> Accordingly they concluded that the Constitution imposed no independent procedural requirements. </s> This view was rejected by MR. JUSTICE POWELL in an opinion joined by MR. JUSTICE BLACKMUN. </s> "The plurality opinion evidently reasons that the nature of appellee's interest in continued federal employment is necessarily defined and limited by the statutory procedures for discharge and that the constitutional guarantee of procedural due process accords to appellee no procedural protections against arbitrary or erroneous discharge other than those expressly provided in the statute. The plurality would thus conclude that the statute governing federal employment determines not only the nature of appellee's property interest, but also the extent of [426 U.S. 341, 359] the procedural protections to which he may lay claim. It seems to me that this approach is incompatible with the principles laid down in Roth and Sindermann. Indeed, it would lead directly to the conclusion that whatever the nature of an individual's statutorily created property interest, deprivation of that interest could be accomplished without notice or a hearing at any time. This view misconceives the origin of the right to procedural due process. That right is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. . . ." Id., at 166-167. (Emphasis added.) </s> I, too, disagreed with the view stated in MR. JUSTICE REHNQUIST'S opinion: </s> "I differ basically with the plurality's view that `where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet,' and that `the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest.' Ante, at 153-154, 155. The rationale of this position quickly leads to the conclusion that even though the statute requires cause for discharge, the requisites of due process could equally have been satisfied had the law dispensed with any hearing at all, whether pretermination or post-termination." Id., at 177-178. [426 U.S. 341, 360] </s> The view was also rejected by MR. JUSTICE MARSHALL in an opinion joined by MR. JUSTICE BRENNAN and Mr. Justice Douglas in which it was correctly observed: </s> "Accordingly, a majority of the Court rejects MR. JUSTICE REHNQUIST'S argument that because appellee's entitlement arose from statute, it could be conditioned on a statutory limitation of procedural due process protections, an approach which would render such protection inapplicable to the deprivation of any statutory benefit - any `privilege' extended by Government - where a statute prescribed a termination procedure, no matter how arbitrary or unfair. It would amount to nothing less than a return, albeit in somewhat different verbal garb, to the thoroughly discredited distinction between rights and privileges which once seemed to govern the applicability of procedural due process." Id., at 211. </s> The views now expressed by the majority are thus squarely contrary to the views expressed by a majority of the Justices in Arnett. As MR. JUSTICE POWELL suggested in Arnett, they are also "incompatible with the principles laid down in Roth and Sindermann." 2 Id., at 166. I would not so soon depart from these cases nor from the views expressed by a majority in Arnett. The ordinance plainly grants petitioner a right to his job unless there is cause to fire him. Having granted him such a right it is the Federal Constitution, 3 </s> [426 U.S. 341, 361] not state law, which determines the process to be applied in connection with any state decision to deprive him of it. </s> [Footnote 1 The Court accepts the District Court's conclusion that the city employee holds his position at the will and pleasure of the city. If the Court believes that the District Court's conclusion did not rest on the procedural limitations in the ordinance, then the court must construe the District Court's opinion - and the ordinance - as permitting, but not limiting, discharges to those based on the causes specified in the ordinance. In this view, discharges for other reasons or for no reason at all could be made. Termination of employment would in effect be within the complete discretion of the city; and for this reason the employee would have no property interest in his employment which would call for the protections of the Due Process Clause. As indicated in the text, I think this construction of the ordinance and of the District Court's opinion is in error. </s> [Footnote 2 Board of Regents v. Roth, 408 U.S. 564 (1972), and Perry v. Sindermann, 408 U.S. 593 (1972). </s> [Footnote 3 The majority intimates, ante, at 345 n. 8, that the views of the three plurality Justices in Arnett v. Kennedy were rejected because the other six Justices disagreed on the question of how the federal statute involved in that case should be construed. This is incorrect. All Justices agreed on the meaning of the statute. As the remarks of the six Justices quoted above indicate, it was the constitutional [426 U.S. 341, 361] significance of the statute on which the six disagreed with the plurality. </s> Similarly, here, I do not disagree with the majority or the courts below on the meaning of the state law. If I did, I might be inclined to defer to the judgments of the two lower courts. The state law says that petitioner may be dismissed by the City Manager only for certain kinds of cause and then provides that he will receive notice and an explanation, but no hearing and no review. I agree that as a matter of state law petitioner has no remedy no matter how arbitrarily or erroneously the City Manager has acted. This is what the lower courts say the statute means. I differ with those courts and the majority only with respect to the constitutional significance of an unambiguous state law. A majority of the Justices in Arnett v. Kennedy, stood on the proposition that the Constitution requires procedures not required by state law when the state conditions dismissal on "cause." </s> MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, dissenting. </s> I join MR. JUSTICE WHITE'S dissent for I agree that the Court appears to be adopting a legal principle which specifically was rejected by a majority of the Justices of this Court in Arnett v. Kennedy, 416 U.S. 134 (1974). </s> I also feel, however, that Still v. Lance, 279 N.C. 254, 182 S. E. 2d 403 (1971), the only North Carolina case cited by the Court and by the District Court, is by no means the authoritative holding on state law that the Court, ante, at 345, and n. 9, seems to think it is. In Still the Supreme Court of North Carolina considered a statute that contained no "for cause" standard for failure to renew a teacher's contract at the end of a school year. In holding that this provision did not create a continued expectation of employment, the North Carolina court noted that it "does not limit the right of the employer board to terminate the employment of a teacher at the [426 U.S. 341, 362] end of a school year to a specified cause or circumstance." 279 N.C., at 260, 182 S. E. 2d, at 407. This provision, the court observed, stood in sharp contrast with another provision of the statute relating to termination of employment during the school year and prescribing that when "it shall have been determined that the services of an employee are not acceptable for the remainder of the current school year" (emphasis added), ibid., notice and hearing were required. </s> The Marion ordinance in the present case contains a "for cause" standard for dismissal and, it seems to me, is like that portion of the statute construed in Still pertaining to termination of employment during the year. As such, it plainly does not subject an employee to termination at the will and pleasure of the municipality, but, instead, creates a proper expectation of continued employment so long as he performs his work satisfactorily. At this point, the Federal Constitution steps in and requires that appropriate procedures be followed before the employee may be deprived of his property interest. </s> [426 U.S. 341, 363]

United States Supreme Court GUSTAFSON v. ALLOYD CO.(1995) No. 93-404 Argued: November 2, 1994Decided: February 28, 1995 </s> Petitioners (collectively Gustafson), the sole shareholders of Alloyd, Inc., sold substantially all of its stock to respondents and other buyers in a private sale agreement. The purchase price included a payment reflecting an estimated increase in the company's net worth from the end of the previous year through the closing, since hard financial data was unavailable, The contract provided that if a year-end audit and financial statements revealed variances between estimated and actual increased value, the disappointed party would receive an adjustment. As a result of the audit, respondents were entitled to recover an adjustment, but instead sought relief under 12(2) of the Securities Act of 1933 (1933 Act or Act), which gives buyers an express right of rescission against sellers who make material misstatements or omissions "by means of a prospectus." In granting Gustafson's motion for summary judgment, the District Court held that 12(2) claims can only arise out of initial stock offerings and not a private sale agreement. The Court of Appeals vacated the judgment and remanded the case in light of its intervening decision that the inclusion of the term ""communication" in the Act's definition of prospectus meant that the latter includes all written communications offering a security for sale, and, thus, a 12(2) right of action applies to private sale agreements. </s> Held: </s> Section 12(2) does not extend to a private sale contract, since a contract, and its recitations, that are not held out to the public are not a "prospectus" as the term is used in the 1933 Act. Pp. 4-22. </s> (a) On the assumptions that must be made as the case reaches this Court, respondents would have a right to obtain rescission if Gustafson's misstatements were made "by means of a prospectus or oral Page II communication" related to a prospectus. Three sections of the 1933 Act are critical in resolving the issue whether the contract is a "prospectus": 2(10), which defines a prospectus as "any prospectus, notice, circular, advertisement, letter, or communication written or by radio or television" that offers any security for sale or confirms its sale; 10, which specifies what information must be contained in a prospectus; and 12, which imposes liability based on misstatements in a prospectus. The term "prospectus" should be construed, if at all possible, to give it a consistent meaning throughout the Act. Pp. 4-5. </s> (b) The contract in this case is not a "prospectus" as that term is defined in 10. Whatever else "prospectus" may mean, 10 confines it to a document that, absent an overriding exemption, must include "information contained in the registration statement." By and large, only public offerings by an issuer or its controlling shareholders requires the preparation and filing of such a statement. Thus, it follows that a prospectus is confined to such offerings. Since there is no dispute that the contract in question was not required to carry information contained in a registration statement, it also follows that the contract is not a prospectus under 10. Pp. 5-7. </s> (c) The term "prospectus" has the same meaning and refers to the same types of communications in both 10 and 12. The normal rule of statutory construction that identical words used in different parts of the same Act are intended to have the same meaning applies here. The Act's structure and 12's language reinforce this view. In addition, since the primary innovation of the Act was the creation of federal duties - for the most part registration and disclosure obligations - in connection with public offerings, it is reasonable to conclude that the liability provisions were designed primarily to provide remedies for violations of these obligations rather than to conclude that 12(2) creates vast additional liabilities that are quite independent of them. Congress would have been specific had it intended "prospectus" to have a different meaning in 12. Pp. 7-11. </s> (d) The term "communication" in 2(10)'s definition of "prospectus" does not mean that any written communication offering a security for sale is a "prospectus" for purposes of 12. "Communication" is but one word in a list, which read in its entirety yields the interpretation that "prospectus" refers to a document soliciting the public to acquire securities. Respondents' argument to the contrary is inconsistent with two rules of statutory construction. First, this Court will avoid a reading which renders some words altogether redundant. However, reading "communication" to include every written communication would render "notice, circular, advertisement, [and] letter" redundant, since each is a form of written communication. A word is also known by the company it keeps. From the terms used in the list, it is Page III apparent that "communication" refers to documents of wide dissemination. Similarly, the list includes radio and television communications but not face-to-face or telephone conversations. Moreover, at the time the 1933 Act was passed, "prospectus" was a term of art understood to refer to a document soliciting the public to acquire securities. Pp. 11-14. </s> (e) The holding in this case draws support from the decision in United States v. Naftalin, 441 U.S. 768 , that 17(a)--which makes unlawful fraudulent transfers of securities - extends beyond the regulation of public offerings. That decision was based on 17(a)'s language - which suggested no limitation of the scope of liability - and its legislative history - which showed that Congress made a deliberate departure from the Act's general scheme in 17(a). In contrast, 12(2)'s reference to "prospectus" limits its coverage to public offerings, and nothing in its legislative history hints that it was intended to effect expansion of the Act's coverage. Pp. 14-15. </s> (f) Statements by commentators and judges written after the Act was passed are not reliable indicators of what Congress intended. By and large, the writings presented in support of respondents' construction of the Act of little value in determining the issue presented here: the extent of 12(2)'s coverage. The Act's legislative history clearly indicates that Congress contemplated that 12(2) would apply only to public offerings by an issuer or controlling shareholder, and nothing in that history suggests that Congress intended to create a formal prospectus required to comply with both 10 and 12, and a second, less formal prospectus, to which only 12 would be applicable. Pp. 15-22. </s> Reversed and remanded. </s> KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNER, and SOUTER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, J., joined. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE KENNEDY delivered the opinion of the Court. </s> Under 12(2) of the Securities Act of 1933 buyers have an express cause of action for rescission against sellers who make material misstatements or omissions "by means of a prospectus." The question presented is whether this right of rescission extends to a private, secondary transaction, on the theory that recitations in the purchase agreement are part of a "prospectus." </s> I </s> Petitioners Gustafson, McLean, and Butler (collectively Gustafson) were in 1989 the sole shareholders of Alloyd, Inc., a manufacturer of plastic packaging and automatic heat sealing equipment. Alloyd was formed, and its stock was issued, in 1961. In 1989, Gustafson decided to sell Alloyd and engaged KPMG Peat Marwick to find a buyer. In response to information distributed by KPMG, Wind Point Partners II, L. P., agreed to buy substantially all of the issued and outstanding stock through Alloyd Holdings, Inc., a new corporation formed to effect the sale of Alloyd's stock. The shareholders of Alloyd Holdings were Wind Point and a number of individual investors. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 2] </s> In preparation for negotiating the contract with Gustafson, Wind Point undertook an extensive analysis of the company, relying in part on a formal business review prepared by KPMG. Alloyd's practice was to take inventory at year's end, so Wind Point and KPMG considered taking an earlier inventory to use in determining the purchase price. In the end they did not do so, relying instead on certain estimates and including provisions for adjustments after the transaction closed. </s> On December 20, 1989 Gustafson and Alloyd Holdings executed a contract of sale. Alloyd Holdings agreed to pay Gustafson and his coshareholders $18,709,000 for the sale of the stock plus a payment of $2,122,219, which reflected the estimated increase in Alloyd's net worth from the end of the previous year, the last period for which hard financial data were available. Article IV of the purchase agreement, entitled "Representations and Warranties of the Sellers," included assurances that the company's financial statements "present fairly . . . the Company's financial condition" and that between the date of the latest balance sheet and the date the agreement was executed "there ha[d] been no material adverse change in . . . [Alloyd's] financial condition." App. 115, 117. The contract also provided that if the year-end audit and financial statements revealed a variance between estimated and actual increased value, the disappointed party would receive an adjustment. </s> The year-end audit of Alloyd revealed that Alloyd's actual earnings for 1989 were lower than the estimates relied upon by the parties in negotiating the adjustment amount of $2,122,219. Under the contract, the buyers had a right to recover an adjustment amount of $815,000, from the sellers. Nevertheless, on February 11, 1991, the newly formed company (now called Alloyd, Co., the same as the original company) and Wind Point brought suit in the United States District Court for the Northern District of Illinois, seeking outright rescission </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 3] </s> of the contract under 12(2) of the Securities Act of 1933. Alloyd (the new company) claimed that statements made by Gustafson and his coshareholders regarding the financial data of their company were inaccurate, rendering untrue the representations and warranties contained in the contract. The buyers further alleged that the contract of sale was a "prospectus," so that any misstatements contained in the agreement gave rise to liability under 12(2) of the 1933 Act. Pursuant to the adjustment clause, the defendants remitted to the purchasers $815,000 plus interest, but the adjustment did not cause the purchasers to drop the lawsuit. </s> Relying on the decision of the Court of Appeals for the Third Circuit in Ballay v. Legg Mason Wood Walker, Inc., 925 F.2d 682 (1991), the District Court granted Gustafson's motion for summary judgment, holding "that section 12(2) claims can only arise out of the initial stock offerings." App. 20. Although the sellers were the controlling shareholders of the original company, the District Court concluded that the private sale agreement "cannot be compared to an initial offering" because "the purchasers in this case had direct access to financial and other company documents, and had the opportunity to inspect the seller's property." Id., at 21. </s> On review, the Court of Appeals for the Seventh Circuit vacated the District Court's judgment and remanded for further consideration in light of that court's intervening decision in Pacific Dunlop Holdings Inc. v. Allen & Co. Inc., 993 F.2d 578 (1993). In Pacific Dunlop the court reasoned that the inclusion of the term "communication" in the Act's definition of prospectus meant that the term prospectus was defined "very broadly" to include all written communications that offered the sale of a security. Id., at 582. Rejecting the view of the Court of Appeals for the Third Circuit in Ballay, the Court of Appeals decided that </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 4] </s> 12(2)'s right of action for rescission "applies to any communication which offers any security for sale . . . including the stock purchase agreement in the present case." 993 F.2d, at 595. We granted certiorari to resolve this Circuit conflict, 510 U.S. ___ (1994), and we now reverse. </s> II </s> The rescission claim against Gustafson is based upon 12(2) of the 1933 Act, 48 Stat. 84, as amended, 15 U.S.C. 77l(2). In relevant part, the section provides that any person who </s> "offers or sells a security (whether or not exempted by the provisions of section 77c of this title, other than paragraph (2) of subsection (a) of said section), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, "shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security." </s> As this case reaches us, we must assume that the stock purchase agreement contained material misstatements of </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 5] </s> fact made by the sellers and that Gustafson would not sustain its burden of proving due care. On these assumptions, Alloyd would have a right to obtain rescission if those misstatements were made "by means of a prospectus or oral communication." The parties (and the courts of appeals) agree that the phrase "oral communication" is restricted to oral communications that relate to a prospectus. See Pacific Dunlop, supra, 993 F.2d, at 588; Ballay, supra, at 688. The determinative question, then, is whether the contract between Alloyd and Gustafson is a "prospectus" as the term is used in the 1933 Act. </s> Alloyd argues that "prospectus" is defined in a broad manner, broad enough to encompass the contract between the parties. This argument is echoed by the dissents. See post, at ___ (THOMAS, J., dissenting); post, at ___ (GINSBURG, J., dissenting). Gustafson, by contrast, maintains that prospectus in the 1933 Act means a communication soliciting the public to purchase securities from the issuer. Brief for Petitioners 17-18. </s> Three sections of the 1933 Act are critical in resolving the definitional question on which the case turns: 2(10), which defines a prospectus; 10, which sets forth the information that must be contained in a prospectus; and 12, which imposes liability based on misstatements in a prospectus. In seeking to interpret the term "prospectus," we adopt the premise that the term should be construed, if possible, to give it a consistent meaning throughout the Act. That principle follows from our duty to construe statutes, not isolated provisions. See Philbrook v. Glodgett, 421 U.S. 707, 713 (1975); Kokoszka v. Belford, 417 U.S. 642, 650 (1974). </s> A </s> We begin with 10. It provides, in relevant part: </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 6] </s> "Except to the extent otherwise permitted or required pursuant to this subsection or subsections (c), (d), or (e) of this section - </s> "(1) a prospectus relating to a security other than a security issued by a foreign government or political subdivision thereof, shall contain the information contained in the registration statement . . . . </s> "(2) a prospectus relating to a security issued by a foreign government or political subdivision thereof shall contain the information contained in the registration statement . . . ." 15 U.S.C. 77j. </s> Section 10 does not provide that some prospectuses must contain the information contained in the registration statement. Save for the explicit and well-defined exemptions for securities listed under 3, see 15 U.S.C. 77c (exempting certain classes of securities from the coverage of the Act), its mandate is unqualified: "a prospectus . . . shall contain the information contained in the registration statement." </s> Although 10 does not define what a prospectus is, it does instruct us what a prospectus cannot be if the Act is to be interpreted as a symmetrical and coherent regulatory scheme, one in which the operative words have a consistent meaning throughout. There is no dispute that the contract in this case was not required to contain the information contained in a registration statement and that no statutory exemption was required to take the document out of 10's coverage. Cf. 15 U.S.C. 77c. It follows that the contract is not a prospectus under 10. That does not mean that a document ceases to be a prospectus whenever it omits a required piece of information. It does mean that a document is not a prospectus within the meaning of that section if, absent an exemption, it need not comply with 10's requirements in the first place. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 7] </s> An examination of 10 reveals that, whatever else "prospectus" may mean, the term is confined to a document that, absent an overriding exemption, must include the "information contained in the registration statement." By and large, only public offerings by an issuer of a security, or by controlling shareholders of an issuer, require the preparation and filing of registration statements. See 15 U.S.C. 77d, 77e, 77b(11). It follows, we conclude, that a prospectus under 10 is confined to documents related to public offerings by an issuer or its controlling shareholders. </s> This much (the meaning of prospectus in 10) seems not to be in dispute. Where the courts are in disagreement is with the implications of this proposition for the entirety of the Act, and for 12 in particular. Compare Ballay v. Legg Mason Wood Walker, Inc., 925 F.2d, at 688-689 (suggesting that the term prospectus is used in a consistent manner in both 10 and 12), with Pacific Dunlop Holdings Inc. v. Allen & Co., 993 F.2d, at 584 (rejecting that view). We conclude that the term "prospectus" must have the same meaning under 10 and 12. In so holding, we do not, as the dissent by JUSTICE GINSBURG suggests, make the mistake of treating 10 as a definitional section. See post at ___ (GINSBURG, J., dissenting). Instead, we find in 10 guidance and instruction for giving the term a consistent meaning throughout the Act. </s> The Securities Act of 1933, like every Act of Congress, should not be read as a series of unrelated and isolated provisions. Only last term we adhered to the "normal rule of statutory construction" that "identical words used in different parts of the same act are intended to have the same meaning." Department of Revenue of Oregon v. ACF Industries, Inc., 510 U.S. ___, ___ (1994) (slip op., at 9) (internal quotation marks and citations omitted); see also Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. ___, ___ (1993) (slip </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 8] </s> op., at 19); Atlantic Cleaners & Dryers, Inc. v. United States, 286 U.S. 427, 433 (1932). That principle applies here. If the contract before us is not a prospectus for purposes of 10 - as all must and do concede - it is not a prospectus for purposes of 12 either. </s> The conclusion that prospectus has the same meaning, and refers to the same types of communications (public offers by an issuer or its controlling shareholders), in both 10 and 12 is reinforced by an examination of the structure of the 1933 Act. Sections 4 and 5 of the Act together require a seller to file a registration statement and to issue a prospectus for certain defined types of sales (public offerings by an issuer, through an underwriter). See 15 U.S.C. 77d, 77e. Sections 7 and 10 of the Act set forth the information required in the registration statement and the prospectus. See 77g, 77j. Section 11 provides for liability on account of false registration statements; 12(2) for liability based on misstatements in prospectuses. See 15 U.S.C. 77k, 77l. Following the most natural and symmetrical reading, just as the liability imposed by 11 flows from the requirements imposed by 5 and 7 providing for the filing and content of registration statements, the liability imposed by 12(2), cannot attach unless there is an obligation to distribute the prospectus in the first place (or unless there is an exemption). </s> Our interpretation is further confirmed by a reexamination of 12 itself. The section contains an important guide to the correct resolution of the case. By its terms, 12(2) exempts from its coverage prospectuses relating to the sales of government-issued securities. See 15 U.S.C. 77l (excepting securities exempted by 77c(a)(2)). If Congress intended 12(2) to create liability for misstatements contained in any written communication relating to the sale of a security - including secondary market transactions - there is no ready explanation for exempting government-issued securities </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 9] </s> from the reach of the right to rescind granted by 12(2). Why would Congress grant immunity to a private seller from liability in a rescission suit for no reason other than that the seller's misstatements happen to relate to securities issued by a governmental entity? No reason is apparent. The anomaly disappears, however, when the term "prospectus" relates only to documents that offer securities sold to the public by an issuer. The exemption for government-issued securities makes perfect sense on that view, for it then becomes a precise and appropriate means of giving immunity to governmental authorities. </s> The primary innovation of the 1933 Act was the creation of federal duties - for the most part, registration and disclosure obligations - in connection with public offerings. See, e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 195 (1976) (the 1933 Act "was designed to provide investors with full disclosure of material information concerning public offerings"); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 752 (1975) ("The 1933 Act is a far narrower statute [than the Securities Exchange Act of 1934 (1934 Act)] chiefly concerned with disclosure and fraud in connection with offerings of securities - primarily, as here, initial distributions of newly issued stock from corporate issuers"); United States v. Naftalin, 441 U.S. 768, 777 -778 (1979) ("[T]he 1933 Act was primarily concerned with the regulation of new offerings"); SEC v. Ralston Purina Co., 346 U.S. 119, 122 , n. 5 (1953) ("`[T]he bill does not affect transactions beyond the need of public protection in order to prevent recurrences of demonstrated abuses'"), quoting H. R. Rep. No. 85, 73d Cong., 1st Sess., 7 (1933). We are reluctant to conclude that 12(2) creates vast additional liabilities that are quite independent of the new substantive obligations the Act imposes. It is more reasonable to interpret the liability provisions of the 1933 Act as designed for the primary purpose of providing </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 10] </s> remedies for violations of the obligations it had created. Indeed, 11 and 12(1) - the statutory neighbors of 12(2) - afford remedies for violations of those obligations. See 11, 15 U.S.C. 77k (remedy for untrue statements in registration statements); 12(1), 15 U.S.C. 77l(1) (remedy for sales in violation of 5, which prohibits the sale of unregistered securities). Under our interpretation of "prospectus," 12(2) in similar manner is linked to the new duties created by the Act. </s> On the other hand, accepting Alloyd's argument that any written offer is a prospectus under 12 would require us to hold that the word "prospectus" in 12 refers to a broader set of communications than the same term in 10. The Court of Appeals was candid in embracing that conclusion: "[T]he 1933 Act contemplates many definitions of a prospectus. Section 2(10) gives a single, broad definition; section 10(a) involves an isolated, distinct document - a prospectus within a prospectus; section 10(d) gives the Commission authority to classify many." Pacific Dunlop Holdings Inc. v. Allen & Co., 993 F.2d, at 584. The dissents take a similar tack. In the name of a plain meaning approach to statutory interpretation, the dissents discover in the Act two different species of prospectuses: formal (also called 10) prospectuses, subject to both 10 and 12, and informal prospectuses, subject only to 12 but not to 10. See post at ___ (GINSBURG, J., dissenting); see also post, at ___ (THOMAS, J., dissenting). Nowhere in the statute, however, do the terms "formal prospectus" or "informal prospectus" appear. Instead, the Act uses one term - "prospectus" - throughout. In disagreement with the Court of Appeals and the dissenting opinions, we cannot accept the conclusion that this single operative word means one thing in one section of the Act and something quite different in another. The dissenting opinions' </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 11] </s> resort to terms not found in the Act belies the claim of fidelity to the text of the statute. </s> Alloyd, as well as JUSTICE THOMAS in his dissent, respond that if Congress had intended 12(2) to govern only initial public offerings, it would have been simple for Congress to have referred to the 4 exemptions in 12(2). See Brief of Respondents 25-26; post, at ___ (THOMAS, J., dissenting). The argument gets the presumption backwards. Had Congress meant the term "prospectus" in 12(2) to have a different meaning than the same term in 10, that is when one would have expected Congress to have been explicit. Congressional silence cuts against, not in favor of, Alloyd's argument. The burden should be on the proponents of the view that the term "prospectus" means one thing in 12 and another in 10 to adduce strong textual support for that conclusion. And Alloyd adduces none. </s> B </s> Alloyd's contrary argument rests to a significant extent on 2(10), or, to be more precise, on one word of that section. Section 2(10) provides that "[t]he term `prospectus' means any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security." 15 U.S.C. 77b(10). Concentrating on the word "communication," Alloyd argues that any written communication that offers a security for sale is a "prospectus." Inserting its definition into 12(2), Alloyd insists that a material misstatement in any communication offering a security for sale gives rise to an action for rescission, without proof of fraud by the the seller or reliance by the purchaser. In Alloyd's view, 2(10) gives the term "prospectus" a capacious definition that, although incompatible with 10, nevertheless governs in 12. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 12] </s> The flaw in Alloyd's argument, echoed in the dissenting opinions, post, at ___ (THOMAS, J., dissenting; post, at ___ (GINSBURG, J., dissenting), is its reliance on one word of the definitional section in isolation. To be sure, 2(10) defines a prospectus as, inter alia, a "communication, written or by radio or television, which offers any security for sale or confirms the sale of any security." 15 U.S.C. 77b(10). The word "communication," however, on which Alloyd's entire argument rests, is but one word in a list, a word Alloyd reads altogether out of context. </s> The relevant phrase in the definitional part of the statute must be read in its entirety, a reading which yields the interpretation that the term prospectus refers to a document soliciting the public to acquire securities. We find that definition controlling. Alloyd's argument that the phrase "communication, written or by radio or television," transforms any written communication offering a security for sale into a prospectus cannot consist with at least two rather sensible rules of statutory construction. First, the Court will avoid a reading which renders some words altogether redundant. See United States v. Menasche, 348 U.S. 528, 538 -39 (1955). If "communication" included every written communication, it would render "notice, circular, advertisement, [and] letter" redundant, since each of these are forms of written communication as well. Congress with ease could have drafted 2(10) to read: "The term `prospectus' means any communication, written or by radio or television, that offers a security for sale or confirms the sale of a security." Congress did not write the statute that way, however, and we decline to say it included the words "notice, circular, advertisement, [and] letter" for no purpose. </s> The constructional problem is resolved by the second principle Alloyd overlooks, which is that a word is known by the company it keeps (the doctrine of noscitur </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 13] </s> a sociis). This rule we rely upon to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving "unintended breadth to the Acts of Congress." Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961). The rule guided our earlier interpretation of the word "security" under the 1934 Act. The 1934 Act defines the term "security" to mean, inter alia, "any note." We concluded nevertheless that in context "the phrase `any note' should not be interpreted to mean literally `any note,' but must be understood against the background of what Congress was attempting to accomplish in enacting the Securities Acts." Reves v. Ernst & Young, 494 U.S. 56, 63 (1990). These considerations convince us that Alloyd's suggested interpretation is not the correct one. </s> There is a better reading. From the terms "prospectus, notice, circular, advertisement, or letter," it is apparent that the list refers to documents of wide dissemination. In a similar manner, the list includes communications "by radio or television," but not face-to-face or telephonic conversations. Inclusion of the term "communication" in that list suggests that it too refers to a public communication. </s> When the 1933 Act was drawn and adopted, the term "prospectus" was well understood to refer to a document soliciting the public to acquire securities from the issuer. See Black's Law Dictionary 959 (2d ed. 1910) (defining "prospectus" as a "document published by a company . . . or by persons acting as its agents or assignees, setting forth the nature and objects of an issue of shares . . . and inviting the public to subscribe to the issue"). In this respect, the word prospectus is a term of art, which accounts for Congressional confidence in employing what might otherwise be regarded as a partial circularity in the formal, statutory definition. See 15 U.S.C. 77b(10) ("The term `prospectus' means any prospectus . . . ."). The use of the term prospectus to </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 14] </s> refer to public solicitations explains as well Congress' decision in 12(2) to grant buyers a right to rescind without proof of reliance. See H. R. Rep. No. 85, 73d Cong., 1st Sess., 10 (1933) ("The statements for which [liable persons] are responsible, although they may never actually have been seen by the prospective purchaser, because of their wide dissemination, determine the market price of the security . . . ."). </s> The list of terms in 2(10) prevents a seller of stock from avoiding liability by calling a soliciting document something other than a prospectus, but it does not compel the conclusion that Alloyd urges us to reach and that the dissenting opinions adopt. Instead, the term "written communication" must be read in context to refer to writings that, from a functional standpoint, are similar to the terms "notice, circular, [and] advertisement." The term includes communications held out to the public at large but that might have been thought to be outside the other words in the definitional section. </s> C </s> Our holding that the term "prospectus" relates to public offerings by issuers and their controlling shareholders draws support from our earlier decision interpreting the one provision of the Act that extends coverage beyond the regulation of public offerings, 17(a) of the 1933 Act. * See United States v. Naftalin, </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 15] </s> 441 U.S. 768 (1979). In Naftalin, though noting that "the 1933 Act was primarily concerned with the regulation of new offerings," the Court held that 17(a) was "intended to cover any fraudulent scheme in an offer or sale of securities, whether in the course of an initial distribution or in the course of ordinary market trading." The Court justified this holding - which it termed "a major departure from th[e] limitation [of the 1933 Act to new offerings]" - by reference to both the statutory language and the unambiguous legislative history. Id., at 777-778. The same considerations counsel in favor of our interpretation of 12(2). </s> The Court noted in Naftalin that 17(a) contained no language suggesting a limitation on the scope of liability under 17(a). See id., at 778 ("the statutory language . . . makes no distinctions between the two kinds of transactions"). Most important for present purposes, 17(a) does not contain the word "prospectus." In contrast, as we have noted, 12(2) contains language, i.e., "by means of a prospectus or oral communication," that limits 12(2) to public offerings. Just as the absence of limiting language in 17(a) resulted in broad coverage, the presence of limiting language in 12(2) requires a narrow construction. </s> Of equal importance, the legislative history relied upon in Naftalin showed that Congress decided upon a deliberate departure from the general scheme of the Act in this one instance, and "made abundantly clear" its intent that 17(a) have broad coverage. See Naftalin, 441 U.S., at 778 (quoting legislative history stating that "`fraud or deception in the sale of securities may be prosecuted regardless of whether . . . or not it is of the class of securities exempted under sections 11 or 12.'" </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 16] </s> S. Rep. No. 47, 73d Cong., 1st Sess., 4 (1933)). No comparable legislative history even hints that 12(2) was intended to be a free-standing provision effecting expansion of the coverage of the entire statute. The intent of Congress and the design of the statute require that 12(2) liability be limited to public offerings. </s> D </s> It is understandable that Congress would provide buyers with a right to rescind, without proof of fraud or reliance, as to misstatements contained in a document prepared with care, following well established procedures relating to investigations with due diligence and in the context of a public offering by an issuer or its controlling shareholders. It is not plausible to infer that Congress created this extensive liability for every casual communication between buyer and seller in the secondary market. It is often difficult, if not altogether impractical, for those engaged in casual communications not to omit some fact that would, if included, qualify the accuracy of a statement. Under Alloyd's view any casual communication between buyer and seller in the aftermarket could give rise to an action for rescission, with no evidence of fraud on the part of the seller or reliance on the part of the buyer. In many instances buyers in pratical [practical] effect would have an option to rescind, impairing the stability of past transactions where neither fraud nor detrimental reliance on misstatements or omissions occured. We find no basis for interpreting the statute to reach so far. </s> III </s> The SEC, as amicus, and JUSTICE GINSBURG in dissent, rely on what they call the legislative background of the Act to support Alloyd's construction. With a few minor exceptions, however, their reliance is upon statements by commentators and judges written after the Act was passed, not while it was under </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 17] </s> consideration. See Brief for Securities and Exchange Commission as Amicus Curiae 19-23; post, at ___ (GINSBURG, J., dissenting). Material not available to the lawmakers is not considered, in the normal course, to be legislative history. After-the-fact statements by proponents of a broad interpretation are not a reliable indicator of what Congress intended when it passed the law, assuming extratextual sources are to any extent reliable for this purpose. </s> The SEC does quote one contemporaneous memorandum prepared by Dean Landis. See id., at 13 (citing James M. Landis, Reply to Investment Bankers Association Objections of May 5, 1933, p. 5). The statement is quite consistent with our construction. Landis observed that, in contrast to the liabilities imposed by the Act "`that flow from the fact of non-registration or registration,'" dealings may violate 12(2) "`even though they are not related to the fact of registration.'" See ibid. (emphasis added). This, of course, is true. The liability imposed by 12(2) has nothing to do with the fact of registration, that is with the failure to file a registration statement that complies with 7 and 11 of the Act. Instead, the liability imposed by 12(2) turns on misstatements contained in the prospectus. And, one might point out, securities exempted by 3 of the Act do not require registration, although they are covered by 12. Landis' observation has nothing to do with the question presented here: whether a prospectus is a document soliciting the public to purchase securities from the issuer. </s> The SEC also relies on a number of writings, the most prominent a release by the FTC, stating that 12(2) applied to securities outstanding on the effective date of the 1933 Act. See id., at 19-20. Again, this is an issue not in dispute. Although the Act as passed exempted securities from registration if sold by the issuer within sixty days of the passage of the Act, see 1933 Securities </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 18] </s> Act, 3(a)(1), the limitation did not apply to 12(2). See 15 U.S.C. 77l. Instead, actions brought under 12(2) are subject to the limitation of actions provision in 13. See 15 U.S.C. 77m (one year from the date of discovery). A buyer who discovered a material omission in a prospectus after the passage of the Act could sue for rescission under 12(2) even though the prospectus had been issued before enactment of the statute. This tells us nothing one way or the other, however, about whether the term "prospectus" is limited to a document soliciting the public to purchase securities from the issuer. </s> In large measure the writings on which both the SEC and JUSTICE GINSBURG rely address a question on which there is no disagreement, that is, "to what securities does 12(2) apply?" We agree with the SEC that 12(2) applies to every class of security (except one issued or backed by a governmental entity), whether exempted from registration or not, and whether outstanding at the time of the passage of the Act or not. The question before us is the coverage of 12(2), and the writings offered by the SEC are of little value on this point. </s> If legislative history is to be considered, it is preferable to consult the documents prepared by Congress when deliberating. The legislative history of the Act concerning the precise question presented supports our interpretation with much clarity and force. Congress contemplated that 12(2) would apply only to public offerings by an issuer (or a controlling shareholder). The House Report stated: "[t]he bill affects only new offerings of securities . . . . It does not affect the ordinary redistribution of securities unless such redistribution takes on the characteristics of a new offering." H. R. Rep. No. 85, 73d Cong., 1st Sess., 5 (1933). The observation extended to 12(2) as well. Part II, 6 of the House Report is entitled "Civil Liabilities." See id., at 9. It begins: "Sections 11 and 12 create and define the civil </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 19] </s> liabilities imposed by the act . . . . Fundamentally, these sections entitle the buyer of securities sold upon a registration statement . . . to sue for recovery of his purchase price." Ibid. It will be recalled that as to private transactions, such as the Alloyd purchase, there will never have been a registration statement. If 12(2) liability were imposed here, it would cover transactions not within the contemplated reach of the statute. </s> Even more important is the Report's discussion, and justification, of the liabilities arising from omissions and misstatements in "the prospectus:" </s> "The Committee emphasizes that these liabilities attach only when there has been an untrue statement of material fact or an omission to state a material fact in the registration statement or the prospectus - the basic information by which the public is solicited. All who sell securities with such a flaw, who cannot prove that they did not know - or in the exercise of due care could not have known - of such misstatement or omission, are liable under sections 11 and 12. For those whose moral responsibility to the public is particularly heavy, there is a correspondingly heavier legal liability - the persons signing the registration statement, the underwriters, the directors of the issuer, the accountants, engineers, appraisers, and other professionals preparing and giving authority to the prospectus - all these are liable to the buyer if they cannot prove [the use of due care]. This throws upon originators of securities a duty of competence as well as innocence . . . ." Ibid. </s> The House Report thus states with clarity and with specific reference to 12 that 12 liability is imposed only as to a document soliciting the public. </s> In light of the care that Congress took to justify the imposition of liability without proof of either fraud or </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 20] </s> reliance on "those whose moral responsibility to the public is particularly heavy" - the "originators of securities" - we can not conclude that Congress would have extended that liability to every private or secondary sale without a whisper of explanation. The conspicuous absence in the legislative history is not the absence of an explicit statement that 12(2) applied only to public offerings, see post at ___ (GINSBURG, J., dissenting), but the lack of any explicit reference to the creation of liability for private transactions. </s> JUSTICE GINSBURG argues that the omission from the 1933 Act of the phrase "offering to the public" that appeared in the definition of "prospectus" in the British Companies Act of 1929 suggests that the drafters of the American bill intended to expand its coverage. See post, at ___ (GINSBURG, J., dissenting). We consider it more likely that the omission reflected instead the judgment that the words "offering to the public" were redundant in light of the understood meaning of "prospectus." Far from suggesting an intent to depart in a dramatic way from the balance struck in the British Companies Act, the legislative history suggests an intent to maintain it. In the context of justifying the "civil liabilities" provisions that hold "all those responsible for statements upon the face of which the public is solicited . . . to standards like those imposed by law upon a fiduciary," the House Report stated: "The demands of this bill call for the assumption of no impossible burden, nor do they involve any leap into the dark. Similar requirements have for years attended the business of issuing securities in other industrialized nations." H. R. Rep. No. 85, at 5. So, too, the Report provided: "The committee is fortified in these sections [that is, 11 and 12] by similar safeguards in the English Companies Act of 1929. What is deemed necessary for sound financing in conservative England ought not to be unnecessary for the more feverish pace which American finance has </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 21] </s> developed." Id., at 9. These passages confirm that the civil liability provisions of the 1933 Act, 11 and 12, impose obligations on those engaged in "the business of issuing securities," in conformance, not in contradiction to, the British example. </s> Nothing in the legislative history, moreover, suggests Congress intended to create two types of prospectuses, a formal prospectus required to comply with both 10 and 12, and a second, less formal prospectus, to which only 12 would be applicable. The Act proceeds by definitions more stable and precise. The legislative history confirms what the text of the Act dictates: 10's requirements govern all prospectuses defined by 2(10) (although, as we pointed out earlier, certain classes of securities are exempted from 10 by operation of 3). In discussing 10, the House Report stated: </s> "Section 10 of the bill requires that any `prospectus' used in connection with the sale of any securities, if it is more than a mere announcement of the name and price of the issue offered and an offer of full details upon request [the exception codified at 2(10)(b)], must include a substantial portion of the information required in the `registration statement.' . . . </s> "`Prospectus' is defined in section 2(1) [now 2(10)] to include `any prospectus, notice, circular, advertisement, letter, or other communication offering any security for sale.' </s> "The purpose of these sections is to secure for potential buyers the means of understanding the intricacies of the transaction into which they are invited." Id., at 8. </s> Nothing in the Report suggests that Congress thought that 10 would apply only to formal prospectuses required to be produced by 5. See 15 U.S.C. 77e. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 22] </s> Cf. post, at ___ (THOMAS, J., dissenting). The Report undermines the dissents' self-contradicting conclusion that the contract here is a prospectus under 2(10) even though not subject to the requirements of 10. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 26] </s> * * * </s> In sum, the word "prospectus" is a term of art referring to a document that describes a public offering of securities by an issuer or controlling shareholder. The contract of sale, and its recitations, were not held out to the public and were not a prospectus as the term is used in the 1933 Act. </s> The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> [Footnote * Section 17(a) provides: </s> "It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly - </s> "(1) to employ any device, scheme, or artifice to defraud, or </s> "(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 15] </s> "(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." 15 U.S.C. 77q(a). </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE THOMAS, with whom JUSTICE SCALIA, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting. </s> From the majority's opinion, one would not realize that 12(2) was involved in this case until one had read more than half-way through. In contrast to the majority's approach of interpreting the statute, I believe the proper method is to begin with the provision actually involved in this case, 12(2), and then turn to the 1933 Act's definitional section, 2(10), before consulting the structure of the Act as a whole. Because the result of this textual analysis shows that 12(2) applies to secondary or private sales of a security as well as to initial public offerings, I dissent. </s> I </s> A </s> As we have emphasized in our recent decisions, "`[t]he starting point in every case involving construction of a statute is the language itself.'" Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring)). See also Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 2] </s> 511 U.S. ___ (1994) (slip op., at 7-9). Unfortunately, the majority has decided to interpret the word "prospectus" in 12(2) by turning to sources outside the four corners of the statute, rather than by adopting the definition provided by Congress. </s> Section 12(2) creates a cause of action when the seller of a security makes a material omission or misstatement to the buyer by means of a prospectus or oral communication. If the seller acted negligently in making the misstatements, the buyer may sue to rescind the sale. I agree with the majority that the only way to interpret 12(2) as limited to initial offerings is to read "by means of a prospectus or oral communication" narrowly. I also agree that in the absence of any other statutory command, one could understand "prospectus" as "a term of art which describes the transmittal of information concerning the sale of a security in an initial distribution." But the canon that "we construe a statutory term in accordance with its ordinary or natural meaning," applies only "[i]n the absence of [a statutory] definition." FDIC v. Meyer, 510 U.S. ___ (1994) (slip op., at 4-6). </s> There is no reason to seek the meaning of "prospectus" outside of the 1933 Act, because Congress has supplied just such a definition in 2(10). That definition is extraordinarily broad: </s> "When used in this subchapter, unless the context otherwise requires - </s> . . . . . </s> "(10) The term `prospectus' means any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security." 15 U.S.C. 77b(10). </s> For me, the breadth of these terms forecloses the majority's position that "prospectus" applies only in the context of initial distributions of securities. Indeed, </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 3] </s> 2(10)'s inclusion of a prospectus as only one of the many different documents that qualify as a "prospectus" for statutory Congress intended "prospectus" to be more than a mere "term of art." Likewise, Congress' extension of prospectus to include documents that merely confirm the sale of a security underscores Congress' intent to depart from the term's ordinary meaning. Section 2(10)'s definition obviously concerns different types of communications rather than different types of transactions. Congress left the job of exempting certain classes of transactions to 3 and 4, not to 2(10). We should use 2(10) to define "prospectus" for the 1933 Act, rather than, as the majority does, use the 1933 Act to define "prospectus" for 2(10). </s> The majority seeks to avoid this reading by attempting to create ambiguities in 2(10). According to the majority, the maxim noscitur a sociis (a word is known by the company it keeps) indicates that the circulars, advertisements, letters, or other communications referred to by 2(10) are limited by the first word in the list: "prospectus." Thus, we are told that these words define the forms a prospectus may take, but the covered communications still must be "prospectus-like" in the sense that they must relate to an initial public offering. Noscitur a sociis, however, does not require us to construe every term in a series narrowly because of the meaning given to just one of the terms. See Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923); cf. Reves v. Ernst & Young, 494 U.S. 56, 64 (1990). </s> The majority uses the canon in an effort to create doubt, not to reduce it. The canon applies only in cases of ambiguity, which I do not find in 2(10). "Noscitur a sociis is a well-established and useful rule of construction where words are of obscure or doubtful meaning; and then, but only then, its aid may be sought to remove the obscurity or doubt by reference to the associated words." Russell, supra, at 520. There is obvious </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 4] </s> breadth in "notice, circular, advertisement, letter, or communication, written or by radio or television." To read one word in a long list as controlling the meaning of all the other words would defy common sense; doing so would prevent Congress from giving effect to expansive words in a list whenever they are combined with one word with a more restricted meaning. Section 2(10)'s very exhaustiveness suggests that "prospectus" is merely the first item in a long list of covered documents, rather than a brooding omnipresence whose meaning cabins that of all the following words. The majority also argues that a broad definition of prospectus makes much of 2(10) redundant. See ante, at 12. But the majority fails to see that "communication, written or by radio or television" is a catch-all. It operates as a safety net that Congress used to sweep up anything it had forgotten to include in its definition. This is a technique Congress employed in several other provisions of the 1933 and 1934 Acts. See, e.g., 15 U.S.C. 77b(1) ("term `security' means any note, stock, treasury stock, bond, debenture . . . or, in general, any interest or instrument commonly known as a `security'"); 15 U.S.C. 77b(9) ("term `write' or `written' shall included printed, lithographed, or any means of graphic communication"); 15 U.S.C. 78c(a)(6) ("term `bank' means (A) a banking institution organized under the laws of the United States, (B) a member bank of the Federal Reserve System, (C) any other banking institution"). In fact, it is the majority's approach that creates redundancies. The majority cannot account for Congress' decision to begin its definition of "prospectus" with the term prospectus, which is then followed by the rest of 2(10)'s list. As a result, the majority must conclude that the use of the term is a "partial circularity," ante, at 13, a reading that deprives the word of its meaning. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 5] </s> B </s> The majority correctly argues that other sections of the 1933 Act employ a narrower understanding of "prospectus" as a document related to an initial public offering. See 10 of the 1933 Act, 15 U.S.C. 77j(a)(3) (detailing information required in prospectus); 5 of the 1933 Act, 15 U.S.C. 77e(b) (requiring prospectus to be sent to buyers). In fact, the majority builds its entire argument on the proposition that it must give "prospectus" the same meaning in both 10 and 12. Since 10 assumes a narrower definition of prospectus, the majority believes that its definition must control that of 12. Although the majority denies that it reads 10 as a definitional section, it admits that 10 "does instruct us what a prospectus cannot be if the Act is to be interpreted as a symmetrical and coherent regulatory scheme." Ante, at 6. </s> I agree with the majority that 5 and 10 cannot embrace fully the broad definition of prospectus supplied by 2(10) and used by 12(2). I also recognize the general presumption that a given term bears the same meaning throughout a statute. See Brown v. Gardner, 513 U.S. ___, ___ (1994) (slip op., at 3). But this presumption is overcome when Congress indicates otherwise. Here, there are several indications that Congress did not use the word "prospectus" in the same sense throughout the statute. First, 2(10) defines "prospectus" to include not only a document that "offers any security for sale" (which is consistent with the majority's reading), but also one that "confirms the sale of any security." But the majority does not claim that 10 uses the term "prospectus" to include confirmation slips. It would be radical to say that every confirmation slip must contain all the information that 10 requires; only the documents accompanying an initial public offering must contain that information. Despite the majority's protestations, it is absolutely clear that the 1933 Act </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 6] </s> uses "prospectus" in two different ways. As a result, any justification for the majority's twisted reading of 2(10) disappears. </s> Second, this understanding is reinforced by 2's preface that its definitions apply "unless the context otherwise requires," 15 U.S.C. 77b. This phrase indicates that Congress intended simply to provide a "default" meaning for "prospectus." Further, nothing in 12(2) indicates that the "context otherwise requires" the use of a definition of "prospectus" other than the one provided by 2(10). If anything, it is 10's "context" that seems to require the use of a definition which is different from that of 2(10). </s> Third, the dual use of "prospectus" in 2(10), which both defines "prospectus" broadly and uses it as a term of art, makes clear that the statute is using the word in at least two different senses, and paves the way for such variations in the ensuing provisions. To adopt the majority's argument would force us to eliminate 2(10) in favor of some narrower, common law definition of "prospectus." Our mandate to interpret statutes does not allow us to recast Congress' handiwork so completely. </s> The majority transforms 10 into the tail that wags the 1933 Act dog. An analogy will illustrate the point. Suppose that the Act regulates cars, and that 2(10) of the Act defines a "car" as any car, motorcycle, truck, or trailer. Section 10 of this hypothetical statute then declares that a car shall have seatbelts, and 5 states that it is unlawful to sell cars without seatbelts. Section 12(2) of this Act then creates a cause of action for misrepresentations that occur during the sale of a car. It is reasonable to conclude that 5 and 10 apply only to what we ordinarily refer to as "cars," because it would be absurd to require motorcycles and trailers to have seatbelts. But the majority's reasoning would lead to the further conclusion that 12(2) does not cover sales </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 7] </s> of motorcycles, when it is clear that the Act includes such sales. </s> C </s> Contrary to the majority's conclusion, it seems to me that the surrounding text of 12(2) supports my reading. On its face, 12(2) makes none of the usual distinctions between initial public offerings and aftermarket trading, or between public trading and privately negotiated sales. The provision does not mention initial public offerings, as do other provisions of the Act. See, e.g., 4 of the 1933 Act, 15 U.S.C. 77d(2) (exempting "transactions by an issuer not involving any public offering"). Nor did Congress limit 12(2) to issuers, as it chose to do with other provisions that are limited to initial distributions. See 11 of the 1933 Act, 15 U.S.C. 77k(a)(2) (holding liable for a false registration statement "every person who was a director of . . . or partner in the issuer" at time of filing). Instead, 12(2) refers more broadly to "any person who . . . offers or sells a security." 1 If, as the majority suggests, Congress had intended to limit 12(2) to initial public offerings, it presumably would have used words such as "issuer," "public offering," or "private," or "resale," or at least discussed trading on the exchanges or the liability of dealers, underwriters, and issuers. But on this score, 12(2) is notable for its silence. </s> I assume that when Congress chose to define liability under the securities laws, it used precise language that it was familiar with to make its meaning clear. Just last Term, in holding that 10(b) of the 1934 Act did not </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 8] </s> create liability for aiders and abettors, we said: "[i]f . . . Congress intended to impose aiding and abetting liability, we presume it would have used the words `aid' and `abet' in the statutory text. But it did not." Central Bank of Denver, 511 U.S., at ___ (slip op., at 12). This rule of construction can cut both ways. If in Central Bank of Denver Congress' failure to use "aid" or "abet" limited liability under the securities laws, then here the absence of "public offering," "issuers," or some similar limitation surely suggests that Congress sought to extend 12(2) to private and secondary transactions. </s> The dearth of limiting language in 12(2) is all the more striking in light of the 1933 Act's detailed exemption provisions. Section 4 of the 1933 Act, appropriately entitled "Exempted Transactions," specifically excludes from 5's registration requirements both "transactions by any person other than an issuer, underwriter, or dealer" and "transactions by an issuer not involving any public offering." 15 U.S.C. 77d(1) and (2). If Congress had intended 12(2) to govern only initial public offerings, it would have been simple for Congress to have referred to the 4 exemptions in 12(2). As we have noted, "although 4(2) of the 1933 Act . . . exempts transactions not involving any public offering from the Act's registration provisions, there is no comparable exemption from the antifraud provisions." Landreth Timber Co., 471 U.S., at 692 . Section 12(2)'s explicit exception only for government securities shows that Congress knew how to exempt certain securities and transactions when it wanted to. </s> The majority argues that 4's exemption suggests a contrary conclusion. Ante, at 11. According to the majority, if Congress had intended 12(2) to apply to private, secondary transactions, it would have said so explicitly. This reasoning goes too far, for it would render 4 superfluous. After all, if the majority applied its approach to 5 (which prohibits the sale of a security </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 9] </s> with-out first registering the security or without first sending a prospectus), then it would conclude - even in the absence of 4 - that 5 refers only to initial offerings. But this would have precluded any need to include 4 at all. </s> The majority claims that under my reading, "there is no ready explanation for exempting" government securities from 12(2). Ante, at 8. But Congress could have concluded that it was unnecessary to impose liability on the private or secondary sellers of a government security because information concerning government securities is already available either from the markets or from government entities. Or Congress could have chosen not to burden government securities with the costs that might accrue from additional liabilities on initial or secondary sales. </s> II </s> The majority argues that the 1933 Act's central focus on initial public offerings requires us to read its provisions as extending only to those distributions. We have recognized, however, that not all of the provisions of the 1933 Act are limited to initial public offerings, nor are all of the provisions of the Securities Exchange Act of 1934 (1934 Act) limited to secondary transactions. Thus, 10(b) of the 1934 Act and SEC Rule 10b-5 reach both initial and secondary distributions. Similarly, we have held that 17 of the 1933 Act reaches beyond initial distributions to aftermarket trading. United States v. Naftalin, 441 U.S. 768 (1979). </s> In reaching our holding in Naftalin, we rejected two arguments relevant here. First, we were not swayed by the contention that the structure of the 1933 Act limited 17 to new issues. As we noted, the statutory language "makes no distinctions between the two kinds of transactions [initial distributions and ordinary market trading]." Id., at 778. Second, the 1934 Act's prohibition of fraud in the secondary sale of securities did not lead us to </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 10] </s> infer that the 1933 Act's provisions apply solely to new offerings. "`The fact that there may well be some overlap is neither unusual nor unfortunate.'" Ibid. (quoting SEC v. National Securities, Inc., 393 U.S. 453, 468 (1969)). </s> Here, 12(2) contains no distinction between initial and secondary transactions, or public and private sales. Thus, if the majority wished to remain faithful to Naftalin, it would hold that the provision reaches both secondary and private transactions. To be sure, 10(b) of the 1934 Act, 15 U.S.C. 78j(b), and SEC Rule 10b-5 provide a cause of action for misstatements made in connection with secondary and private securities transactions. However, "it is hardly a novel proposition that the [1933 and 1934 Acts] `prohibit some of the same conduct.'" Herman & MacLean v. Huddleston, 459 U.S. 375, 383 (1983). Naftalin counsels the Court to reject arguments that we should read 12(2) narrowly in order to avoid redundancy in securities regulation. 441 U.S., at 778 . </s> In fact, it is quite possible that the Congress of 1933-1934 originally intended no overlap between 12(2) and the 1934 Act, but instead expected 12(2) to serve as the only cause of action for the private or secondary sale of securities. As we have noted before, neither the text of 10(b) nor that of SEC Rule 10b-5 provides for private claims, and "we have made no pretense that it was Congress' design to provide the remedy afforded." Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 359 (1991). Only 12(2) explicitly provided a broad remedy for private or aftermarket sales. It seems unlikely that Congress would have failed to provide any cause of action for investors based on misstatements in market transactions. 9 L. Loss & J. Seligman, Securities Regulation 4220 (3d ed. 1992). </s> Instead of reading Naftalin properly, the majority attempts to narrow the case to its facts. According to the </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 11] </s> majority, Naftalin requires that no provision of the 1933 Act should be interpreted to extend liability to secondary transactions unless either the statutory language or the legislative history clearly indicate that Congress intends to do so. If anything, Naftalin implements the opposite rule: that a provision of the 1933 Act extends to both initial offerings and secondary trading unless the text makes a "distinctio[n] between the two kinds of transactions." 441 U.S., at 778 . In any event, the statutory language seems clear enough to me. 2 </s> III </s> The majority's analysis of 12(2) is motivated by its policy preferences. Underlying its reasoning is the assumption that Congress could never have intended to impose liability on sellers engaged in secondary transactions. Adopting a chiding tone, the majority states that "[w]e are reluctant to conclude that 12(2) creates vast additional liabilities that are entirely independent of the new substantive obligations that the Act enumerates." Ante, at 9. Yet, this is exactly what Congress did in 17(a) of the 1933 Act as well as in 10(b) of the 1934 Act. Later, the majority says: "[i]t is not plausible to infer that Congress created this extensive liability for </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 12] </s> every casual communication between buyer and seller in the secondary market." Ante, at 16. It is not the usual practice of this Court to require Congress to explain why it has chosen to pursue a certain policy. Our job simply is to apply the policy, not to question it. </s> I share the majority's concern that extending 12(2) to secondary and private transactions might result in an unwanted increase in securities litigation. But it is for Congress, and not for this Court, to determine the desired level of securities liability. As we said last Term in Central Bank of Denver, policy considerations "`cannot override our interpretation of the text and structure of the Act, except to the extent that they may help to show that adherence to the text and structure would lead to a result `so bizarre' that Congress could not have intended it.'" 511 U.S. ___ (1994) (slip op., at 24), quoting Demarest v. Manspeaker, 498 U.S. 184, 191 (1991). The majority is concerned that a contrary reading would have a drastic impact on the thousands of private and secondary transactions by imposing new liabilities and new transaction costs. But the majority forgets that we are only enforcing Congress' decision to impose such standards of conduct and remedies upon sellers. If the majority believes that 12(2)'s requirements are too burdensome for the securities markets, it must rely upon the other branches of government to limit the 1933 Act. </s> Unfortunately, the majority's decision to pursue its policy preferences comes at the price of disrupting the process of statutory interpretation. The majority's method turns on its head the common-sense approach to interpreting legal documents. The majority begins by importing a definition of "prospectus" from beyond the four corners of the 1933 Act that fits the precise use of the term in 10. Initially ignoring the definition of "prospectus" provided at the beginning of the statute by Congress, the majority finally discusses 2(10) to show that it does not utterly preclude its preferred meaning. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 13] </s> Only then does the majority decide to parse the language of the provision at issue. However, when one interprets a contract provision, one usually begins by reading the provision, and then ascertaining the meaning of any important or ambiguous phrases by consulting any definitional clauses in the contract. Only if those inquiries prove unhelpful does a court turn to extrinsic definitions or to structure. I doubt that the majority would read in so narrow and peculiar a fashion most other statutes, particularly one intended to restrict causes of action in securities cases. </s> The majority's methodology also has the effect of frustrating Congress' will. In the majority's view, there seems to be little reason for Congress to have defined "prospectus," or to have included a 2 definition at all. If all the key words of the 1933 Act are to be defined by the meanings imparted to them by the securities industry, there should be no need for Congress to attempt to define them by statute. The majority does not permit Congress to implement its intent unless it does so exactly as the Court wants it to. </s> For the foregoing reasons, I respectfully dissent. </s> Footnotes [Footnote 1 "Sell" is defined broadly to include "every contract of sale or disposition of a security or interest in a security, for value," while offer refers to "every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value." 15 U.S.C. 77b(3). </s> [Footnote 2 The majority responds that the legislative history must also clearly indicate that Congress intended to expand liability. Naftalin itself imposed no such requirement. Moreover, the legislative history relied upon by the majority and by the Court in Naftalin does not support the conclusion that Congress wanted to extend 17(a) to secondary sales. The passage cited by the majority and by Naftalin, S. Rep. No. 47, 73d Cong., 1st Sess., 4 (1933), see ante, at 15, was unrelated to 17(a), and instead discussed a Senate proposal which was replaced by the House bill as the basis for the 1933 Act. In fact, the 11 and 12 referred to in the Senate Report were originally extensive exemption, rather than liability, provisions that did not survive the legislative process. See S. 875, 73d Cong., 1st Sess., 20-24 (1933). The majority's approach seriously undermines this Court's holding and methodology in Naftalin. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE GINSBURG, with whom JUSTICE BREYER joins, dissenting. </s> A seller's misrepresentation made "by means of a prospectus or oral communication" is actionable under 12(2) of the Securities Act of 1933, 15 U.S.C. 77l(2). To limit the scope of this civil liability provision, the Court maintains that a communication qualifies as a prospectus only if made during a public offering. 1 Communications during either secondary trading or a private placement are not "prospectuses," the Court declares, and thus are not covered by 12(2). </s> As JUSTICE THOMAS persuasively demonstrates, the statute's language does not support the Court's reading. Section 12(2) contains no terms expressly confining the provision to public offerings, and the statutory definition of "prospectus" - "any prospectus, notice, circular, advertisement, letter, or communication, written or by </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 2] </s> radio or television, which offers any security for sale or confirms the sale of any security," 2(10), 15 U.S.C. 77b(10) - is capacious. </s> The Court presents impressive policy reasons for its construction, but drafting history and the longstanding scholarly and judicial understanding of 12(2) caution against judicial resistance to the statute's defining text. I would leave any alteration to Congress. </s> I </s> To construe a legislatively defined term, courts usually start with the defining section. Section 2(10) defines prospectus capaciously as "any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security," 15 U.S.C. 77b(10). The items listed in the defining provision, notably "letters" and "communications," are common in private and secondary sales, as well as in public offerings. The 2(10) definition thus does not confine the 12(2) term "prospectus" to public offerings. </s> The Court bypasses 2(10), and the solid support it gives the Court of Appeals' disposition. Instead of beginning at the beginning, by first attending to the definition section, the Court starts with 10, 15 U.S.C. 77j, a substantive provision. See ante, at 5-6. The Court correctly observes that the term "prospectus" has a circumscribed meaning in that context. A prospectus within the contemplation of 10 is a formal document, typically a document composing part of a registration statement; a 10 prospectus, all agree, appears only in public offerings. The Court then proceeds backward; it reads into the literally and logically prior definition section, 2(10), the meaning "prospectus" has in 10. </s> To justify its backward reading - proceeding from 10 to 2(10) and not the other way round - the Court states that it "cannot accept the conclusion that [the operative </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 3] </s> word prospectus] means one thing in one section of the Act and something quite different in another." See ante, at 10. Our decisions, however, constantly recognize that "a characterization fitting in certain contexts may be unsuitable in others." NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. ___ (1995) (slip op., at 10): </s> "Undoubtedly, there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning. . . . But the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent. . . . </s> "It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance." Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) (word "trade" has a more encompassing meaning in 3 than in 1 of the Sherman Act). </s> See also Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) ("The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against."). </s> According "prospectus" discrete meanings in 10 and 12(2) is consistent with Congress' specific instruction in 2 that definitions apply "unless the context otherwise requires," 15 U.S.C. 77b. As the Court of Appeals </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 4] </s> construed the Act, 2(10)'s definition of "prospectus" governs 12(2), which accommodates without strain the definition's broad reach; by contrast, the specific context of 10 requires a correspondingly specific reading of "prospectus." </s> Indeed, in the Investment Company Act of 1940, Congress explicitly recognized that the Securities Act uses "prospectus" in two different senses - one in 10, and another in the rest of the Act: </s> "`Prospectus,' as used in [ 22 of the Investment Company Act], means a written prospectus intended to meet the requirements of section 10(a) of the Securities Act of 1933 . . . and currently in use. As used elsewhere, `prospectus' means a prospectus as defined in the Securities Act of 1933." 2(31), 54 Stat. 794, as amended, 15 U.S.C. 80a-2(31). 2 </s> II </s> Most provisions of the Securities Act govern only public offerings, and the legislative history pertaining to the Act as a whole shares this orientation. See ante, at 18 (citing H. R. Rep. No. 85, 73d Cong., 1st Sess. 1, 5 (1933)). Section 17(a) of the Act, 15 U.S.C. 77q(a), however, is not limited to public offerings; that enforcement provision, this Court has recognized, also covers secondary trading. See United States v. Naftalin, 441 U.S. 768 (1979). The drafting history is at least consistent with the conclusion that 12(2), like 17(a), is not limited to public offerings. </s> The drafters of the Securities Act modeled this federal legislation on the British Companies Act, 19 & 20 </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 5] </s> Geo. 5, ch. 23 (1929). See Landis, The Legislative History of the Securities Act of 1933, 28 Geo. Wash. L. Rev. 29, 34 (1959) (Landis and the other drafters "determined to take as the base of [their] work the English Companies Act"); see also SEC v. Ralston Purina Co., 346 U.S. 119, 123 (1953) (characterizing the Companies Act as a "statutory anteceden[t]" of federal securities laws). The Companies Act defined "prospectus" as "any prospectus, notice, circular, advertisement, or other invitation, offering to the public for subscription or purchase any shares or debentures of a company," 19 & 20 Geo. 5, ch. 23, 380(1) (1929) (emphasis added). Though the drafters of the Securities Act borrowed the first four terms of this definition, they did not import from the British legislation the language limiting prospectuses to communications "offering [securities] to the public." This conspicuous omission suggests that the drafters intended the defined term "prospectus" to reach beyond communications used in public offerings. 3 </s> The House Conference Report, which explains the Act in its final form, describes 12(2) in broad terms, and nowhere suggests that the provision is limited to public offerings: </s> "The House bill (sec. 12) imposes civil liability for using the mails or the facilities of interstate commerce to sell securities (including securities exempt, </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 6] </s> under section 3, from other provisions of the bill) by means of representations which are untrue or are misleading by reason of omissions of material facts." H. R. Conf. Rep. No. 152, 73d Cong., 1st Sess. 1, 26-27 (1933) (emphasis added). </s> Nor does the Report mention the word "prospectus," even though one would expect that word to figure prominently if it were the significant limitation the Court describes. See also Rapp, The Proper Role of Securities Act Section 12(2) as an Aftermarket Remedy for Disclosure Violations, 47 Bus. Law. 711, 719-724 (1992) (offering detailed analysis of legislative history). 4 </s> Commentators writing shortly after passage of the Act understood 12(2) to cover resales and private sales, as well as public offerings. Felix Frankfurter, organizer of the team that drafted the statute, firmly stated this view. See Frankfurter, The Federal Securities Act: II, 8 Fortune 53, 108 (1933) (Act "seeks to terminate the facilities of the mails and of interstate commerce for dishonest or unfair dealings in the sale of all private or </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 7] </s> foreign government securities, new or old") (emphasis added). William O. Douglas expressed the same understanding. See Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L. J. 171, 183 (1933) (noting that, except for transactions involving securities exempt under 3(a)(2), 15 U.S.C. 77c(a)(2), no securities or transactions are exempt from 12(2)). </s> Most subsequent commentators have agreed that 12(2), like 17(a), is not confined to public offerings. See, e.g., H. Bloomenthal, Securities Law Handbook 14.05, pp. 14-13, 14-38 (1991); 2 A. Bromberg & L. Lowenfels, Securities Fraud and Commodities Fraud 5.2(600) (1993); 1 T. Hazen, Law of Securities Regulation 7.5, p. 318 (2d ed. 1990); 17A J. Hicks, Civil Liabilities: Enforcement and Litigation under the 1933 Act 6.013., pp. 6-12 to 6-39 (1994); 9 L. Loss & J. Seligman, Securities Regulation 4217-4222 (3d ed. 1992); Maynard, Section 12(2) of the Securities Act of 1933: A Remedy for Fraudulent Postdistribution Trading?, 20 Sec. Reg. L. J. 152 (1992); Rapp, supra, at 711; Comment, Applying Section 12(2) of the 1933 Securities Act to the Aftermarket, 57 U. Chi. L. Rev. 955 (1990). But see Weiss, The Courts Have It Right: Securities Act Section 12(2) Applies Only to Public Offerings, 48 Bus. Law. 1 (1992). </s> While Courts of Appeals have divided on 12(2)'s application to secondary transactions, 5 every Court of Appeals to consider the issue has ruled that private placements are subject to 12(2). See Metromedia Co. v. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 8] </s> Fugazy, 983 F.2d 350, 360-361 (CA2 1992), cert. denied, 508 U.S. ___ (1993); Haralson v. E. F. Hutton Group, Inc., 919 F.2d 1014, 1032 (CA5 1990); Nor-Tex Agencies, Inc. v. Jones, 482 F.2d 1093, 1099 (CA5 1973); Pacific Dunlop Holdings Inc. v. Allen & Co. Inc., 993 F.2d 578, 587 (CA7 1993) (exemptions in 4, 15 U.S.C. 77d, do not limit 12(2)'s reach); see also Adalman v. Baker, Watts & Co., 807 F.2d 359 (CA4 1986) (applying 12(2) to private sale). "[L]ongstanding acceptance by the courts [of a judicial interpretation], coupled with Congress's failure to reject" that interpretation, "argues significantly in favor of accept[ing]" it. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733 (1975). </s> The drafters of the Uniform Securities Act, in 1956, modeled 410(a)(2) of that Act 6 on 12(2) of the federal Securities Act. Notably, the Uniform Act drafters did not read 12(2) as limited to public offerings. Accordingly, they did not so limit 410(a)(2). Bloomenthal, supra, 14.05, at 14-38 to 14-39; see also 410(a)(2) comment, 7B U. L. A. 644 (1985) (describing as comparable scope of 410(a)(2) and scope of Uniform Securities Act 101, the Uniform Act's analog to Securities Act 17(a)). 7 Section 410, it is true, does not contain the </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 9] </s> "prospectus or oral communication" language, perhaps because "prospectus" is not a defined term in the Uniform Securities Act. See 401, 7B U. L. A. 578-581 (1985) (listing definitions). There is scant doubt, however, that the drafters of Uniform Act 410(a)(2) intended the provision to have the same meaning as Securities Act 12(2). See 410(a)(2) comment, 7B U. L. A. 644 ("This clause is almost identical with 12(2) of the Securities Act of 1933 . . . ."); L. Loss, Commentary on the Uniform Securities Act 147 (1976) ("The resemblance [of 410(a)(2) of the Uniform Act] to 12(2) of the Securities Act of 1933, 15 U.S.C. 77l(2), will once more make for an interchangeability of federal and state judicial preceden[ts] in this very important area."). </s> * * * </s> In light of the text, drafting history, and longstanding scholarly and judicial understanding of 12(2), I conclude that 12(2) applies to a private resale of securities. If adjustment is in order, as the Court's opinion powerfully suggests it is, 8 Congress is equipped to undertake the </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 10] </s> alteration. Accordingly, I dissent from the Court's opinion and judgment. </s> [Footnote 1 I understand the Court's definition of a public offering to encompass both transactions that must be registered under 5, 15 U.S.C. 77e, and transactions that would have been registered had the securities involved not qualified for exemption under 3, 15 U.S.C. 77c. </s> [Footnote 2 Although the Court finds our reading of 2(10) redundant, see ante, at 12, the Court recognizes that Congress built redundancy into the definition by defining a "prospectus" as a "prospectus." See ante, at 13. </s> [Footnote 3 Though the Court cites legislative history to show Congress' intent to follow, rather than depart from, the British statute, these sources suggest an intention to afford at least as much protection from fraud as the British statute provides. See ante, at 20-21 (quoting H. R. Rep. No. 85, 73d Cong., 1st Sess. 1, 9 (1933)) ("What is deemed necessary for sound financing in conservative England ought not to be unnecessary for the more feverish pace which American finance has developed."). Congress' provision for liability beyond "offering[s] to the public," however, suggests a legislative conclusion that the "feverish pace" of American finance called for greater protection from fraud than the British Act supplied. </s> [Footnote 4 Though House Report No. 85 affords support for the reading advanced by the Court, it predates the Conference Report. Moreover, I do not share the Court's view that Report No. 85 speaks with clarity and specificity to the question at hand- 12(2)'s scope. See ante, at 19. In suggesting that registration statements and prospectuses are "the basic information by which the public is solicited," and that the Act's liability provisions penalize the "originators of securities," see H. R. Rep. No. 85, 73d Cong., 1st Sess. 1, 9 (1933), the Report does not focus on 12(2), but on "[s]ections 11 and 12" in general. Ibid. The Report's broad address thus takes in 11, 15 U.S.C. 77k, which is directed at misstatements in registration statements, and 12(1), 15 U.S.C. 77l(1), which targets sales and offers to sell securities in violation of the Act's registration provisions. There is no dispute that the latter two provisions apply only to public offerings-or, to be precise, to transactions subject to registration. The dominant point made by the Report, moreover, is that the civil liability sections are exacting. </s> [Footnote 5 Compare Pacific Dunlop Holdings Inc. v. Allen & Co. Inc., 993 F.2d 578 (CA7 1993) (applying 12(2) to secondary transactions), cert. granted, 510 U.S. ___, cert. dismissed, 510 U.S. ___ (1994), with First Union Discount Brokerage Services, Inc. v. Milos, 997 F.2d 835, 842-844 (CA11 1993) (holding 12(2) inapplicable to secondary transactions); Ballay v. Legg Mason Wood Walker, Inc., 925 F.2d 682 (CA3), cert. denied, 502 U.S. 820 (1991) (same). </s> [Footnote 6 Section 410(a)(2) imposes liability on "[a]ny person who" </s> "(2) offers or sells a security by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading (the buyer not knowing of the untruth or omission), and who does not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the untruth or omission . . . ." 7B U. L. A. 643 (1985). </s> [Footnote 7 State adaptations of 410(a)(2) have been applied consistently beyond public offerings; they have been read to cover secondary transactions, see, e.g., Banton v. Hackney, 557 So.2d 807 (Ala. 1989); Bradley v. Hullander, 272 S. C. 6, 249 S. E. 2d 486 (1978); </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 9] </s> S & F Supply Co. v. Hunter, 527 P.2d 217 (Utah 1974), as well as private transactions, see, e.g., Towery v. Lucas, 128 Ore. App. 555, 876 P.2d 814 (1994); Jenkins v. Jacobs, 748 P.2d 1318 (Colo. App. 1987); Gaudina v. Haberman, 644 P.2d 159 (Wyo. 1982); Foelker v. Kwake, 279 Ore. 379, 568 P.2d 1369 (1977). </s> [Footnote 8 Section 12(2) did not become prominent in Securities Act litigation until this Court held in Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976), that an action for civil damages under 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 CFR 240.10b-5 (1975), requires proof of scienter. See Loss, The Assault on Securities Act Section 12(2), 105 Harv. L. Rev. 908, 910 (1992). </s> Though the Court of Appeals' reading of 12(2) shows fidelity to the statute Congress passed, this Court's opinion makes noteworthy practical and policy points. As the Court observes, ante, at 16, under the Court of Appeals' reading, 12(2) would equip buyers with a rescission remedy for a negligent misstatement or omission even </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 10] </s> if the slip did not cause the buyer's disenchantment with the investment. And, in light of the "free writing" provision of 2(10)(a), 15 U.S.C. 77b(10)(a) (a communication will not be deemed a "prospectus" if its recipient was previously sent a prospectus meeting the requirements of 10), the Court of Appeals' reading, ironically, would leave a seller more vulnerable in private transactions than in public ones. </s> [ GUSTAFSON v. ALLOYD CO., ___ U.S. ___ (1995) </s> , 1]

United States Supreme Court THORNBURGH v. AMERICAN COLL. OF OBST. & GYN.(1986) No. 84-495 Argued: November 5, 1985Decided: June 11, 1986 </s> Appellees brought an action in Federal District Court alleging that the Pennsylvania Abortion Control Act of 1982 violated the Federal Constitution and seeking declaratory and injunctive relief. The court denied appellees' motion for a preliminary injunction, except as to one provision of the Act which it held was invalid. The Court of Appeals, after granting appellees' motion to enjoin enforcement of the entire Act, held unconstitutional, on the basis of the intervening decisions in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 , Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 , and Simopoulos v. Virginia, 462 U.S. 506 , the following provisions of the Act: (1) the portions of 3205 that, with respect to the requirement that the woman give her "informed consent" to an abortion, require her to be informed of the name of the physician who will perform the abortion, the "particular medical risks" of the abortion procedure to be used and of carrying her child to term, and the facts that there may be "detrimental physical and psychological effects," medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, the father is liable to assist in the child's support, and printed materials are available from the State that describe the fetus and list agencies offering alternatives to abortion; (2) 3208 that requires such printed materials to include a statement that there are agencies willing to help the mother carry her child to term and to assist her after the child is born and a description of the probable anatomical and physiological characteristics of an unborn child at "two-week gestational increments"; (3) 3214(a) and (h) that require the physician to report, among other things, identification of the performing and referring physicians, information as to the woman's residence, age, race, marital status, and number of prior pregnancies, and the basis for any judgment that a medical emergency existed or for any determination of nonviability, and the method of payment for the abortion, and further provide that such reports shall not be deemed public records but shall be available for public inspection and copying in a form that will not lead to disclosure of the identity of any person filing a report; (4) 3211(a) that requires the physician, after the first trimester, to report [476 U.S. 747, 748] the basis for his determination that a child is not viable; (5) 3210(b) that requires a physician performing a post-viability abortion to exercise the degree of care required to preserve the life and health of any unborn child intended to be born and to use the abortion technique that would provide the best opportunity for the unborn child to be aborted alive unless it would present a significantly greater medical risk to the pregnant woman's life or health; and (6) 3210(c) that requires that a second physician be present during an abortion performed when viability is possible, which physician is to take all reasonable steps necessary to preserve the child's life and health. The court held that the validity of other provisions of the Act might depend on evidence adduced at the trial and accordingly remanded these features of the case to the District Court. </s> Held: </s> 1. In a situation such as is presented by this case, where the judgment below is not final and the case is remanded for further development of the facts, this Court has no appellate jurisdiction under 28 U.S.C. 1254(2). But the jurisdictional statement here is treated as a petition for certiorari, and the writ is granted. Pp. 754-755. </s> 2. With a full record before it on the issues as to the validity of the Act and with the intervening decisions in Akron, Ashcroft, and Simopoulos at hand, the Court of Appeals was justified in proceeding to plenary review of those issues. It was not limited to determining whether the District Court abused its discretion in denying a preliminary injunction. Pp. 755-757. </s> 3. The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. The provisions of the Pennsylvania Act that the Court of Appeals invalidated wholly subordinate constitutional privacy interests and concerns with maternal health to the effort to deter a woman from making a decision that, with her physician, is hers to make. Pp. 758-771. </s> (a) The printed materials required by 3205 and 3208 are nothing less than an attempt to wedge the State's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician. Similarly, 3205's requirement that the woman be advised that medical assistance may be available and that the father is responsible for financial assistance in support of the child are poorly disguised elements of discouragement for the abortion decision. And 3205's requirements that the physician inform the woman of "detrimental physical and psychological effects" and of all "particular medical risks" are the antithesis of informed consent. Pp. 759-765. </s> (b) The scope of the information required by 3214(a) and (h) and 3211(a) and its availability to the public belie any assertions by the [476 U.S. 747, 749] State that it is advancing any legitimate interest. The reporting requirements of those sections raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right and must be invalidated. Pp. 765-768. </s> (c) Section 3210(b) is facially invalid as being unsusceptible to a construction that does not require the mother to bear an increased medical risk in order save her viable fetus. Section 3210(c), by failing to provide a medical-emergency exception for the situation where the mother's health is endangered by delay in the second physician's arrival, chills the performance of a late abortion, which, more than one performed at an earlier date, tends to be under emergency conditions. Pp. 768-771. </s> 737 F.2d 283, affirmed. </s> BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 772. BURGER, C. J., filed a dissenting opinion, post, p. 782. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 785. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 814. </s> Andrew S. Gordon, Senior Deputy Attorney General of Pennsylvania, argued the cause for appellants. With him on the briefs were LeRoy S. Zimmerman, Attorney General, and Allen C. Warshaw, Chief Deputy Attorney General. </s> Kathryn Kolbert argued the cause for appellees. With her on the brief was Thomas E. Zemaitis. * </s> [Footnote * Briefs of amici curiae urging reversal filed for the United States by Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Assistant Attorney General Kuhl, John F. Cordes, and John M. Rogers; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the United States Catholic Conference by Wilfred R. Caron and Mark E. Chopko; for Senator Gordon J. Humphrey et al. by Robert A. Destro and Basile J. Uddo; for Watson D. Bowes, Jr., et al. by Steven Frederick McDowell; and for John D. Lane et al. by John E. McKeever. </s> Briefs of amici curiae urging affirmance were filed for the Attorney General of New York by Robert Abrams, Attorney General, pro se, Robert Hermann, Solicitor General, Rosemarie Rhodes, Assistant Attorney General, and Lawrence S. Kahn, Sanford M. Cohen, and Martha J. Olson, Assistant Attorneys General; for the American Civil Liberties Union et al. by Nan D. Hunter, Janet Benshoof, and Suzanne M. Lynn; for the American [476 U.S. 747, 750] Medical Association et al. by Benjamin W. Heineman, Jr., Carter G. Phillips, Newton N. Minow, Jack R. Bierig, Stephan E. Lawton, Joel I. Klein, Joseph A. Keyes, Jr., and Ann E. Allen; for the Center for Constitutional Rights et al. by Anne E. Simon, Nadine Taub, Rhonda Copelon, and Judith Levin; for the National Abortion Federation by David I. Shapiro, Sidney Dickstein, Kenneth M. Simon, and Amy G. Applegate; for the National Abortion Rights Action League et al. by Lynn I. Miller; for the National Family Planning and Reproductive Health Association, Inc., by Robert T. Crothers; for the National Organization for Women et al. by Diane E. Thompson; and for the Planned Parenthood Federation of America, Inc., et al. by Dara Klassel and Eve W. Paul. </s> Briefs of amici curiae were filed for the American Psychological Association by Donald N. Bersoff and Bruce J. Ennis; for the Women's Lawyers' Association of Los Angeles, California, et al. by Susan R. Schwartz, Carol Boyk, Judith Gordon, and Lorraine Loder; for the Unitarian Universalist Association et al. by Madeline Kochen; for Senator Bob Packwood et al. by Laurence H. Tribe and Kathleen M. Sullivan; for Susan Bandes et al. by Arthur Kinoy; and for Olivia Gans et al. by James Bopp, Jr. [476 U.S. 747, 750] </s> JUSTICE BLACKMUN delivered the opinion of the Court. </s> This is an appeal from a judgment of the United States Court of Appeals for the Third Circuit reviewing the District Court's rulings upon a motion for a preliminary injunction. The Court of Appeals held unconstitutional several provisions of Pennsylvania's current Abortion Control Act, 1982 Pa. Laws, Act No. 138, now codified as 18 Pa. Cons. Stat. 3201 et seq. (1982). 1 Among the provisions ruled invalid by the Court of Appeals were portions of 3205, relating to "informed consent"; 3208, concerning "printed information"; 3210(b) and (c), having to do with postviability abortions; and 3211(a) and 3214(a) and (h), regarding reporting requirements. 2 </s> [476 U.S. 747, 751] </s> I </s> The Abortion Control Act was approved by the Governor of the Commonwealth on June 11, 1982. By its own terms, however, see 7 of the Act, it was to become effective only 180 days thereafter, that is, on the following December 8. It had been offered as an amendment to a pending bill to regulate paramilitary training. </s> The 1982 Act was not the Commonwealth's first attempt, after this Court's 1973 decisions in Roe v. Wade, 410 U.S. 113 , and Doe v. Bolton, 410 U.S. 179 , to impose abortion restraints. The State's first post-1973 Abortion Control Act, 1974 Pa. Laws, Act No. 209, was passed in 1974 over the Governor's veto. After extensive litigation, various provisions of the 1974 statute were ruled unconstitutional, including those relating to spousal or parental consent, to the choice of procedure for a postviability abortion, and to the proscription of abortion advertisements. See Planned Parenthood Assn. v. Fitzpatrick, 401 F. Supp. 554 (ED Pa. 1975), summarily aff'd in part sub nom. Franklin v. Fitzgerald, 428 U.S. 901 (1976), and summarily vacated in part and remanded sub nom. Beal v. Franklin, 428 U.S. 901 (1976), modified on remand (No. 74-2440) (ED Pa. 1977), aff'd sub nom. Colautti v. Franklin, 439 U.S. 379 (1979). See also Doe v. Zimmerman, 405 F. Supp. 534 (MD Pa. 1975). </s> In 1978, the Pennsylvania Legislature attempted to restrict access to abortion by limiting medical-assistance funding for the procedure. 2 1978 Pa. Laws, Act No. 16A (pp. 1506-1507) and 1 1978 Pa. Laws, Act No. 148. This effort, too, was successfully challenged in federal court, Roe v. Casey, 464 F. Supp. 487 (ED Pa. 1978), and that judgment was affirmed by the Third Circuit. 623 F.2d 829 (1980). </s> In 1981, abortion legislation was proposed in the Pennsylvania House as an amendment to a pending Senate bill to outlaw [476 U.S. 747, 752] "tough-guy competitions." 3 The suggested amendment, aimed at limiting abortions, was patterned after a model statute developed by a Chicago-based, nonprofit anti-abortion organization. See Note, Toward Constitutional Abortion Control Legislation: The Pennsylvania Approach, 87 Dick. L. Rev. 373, 382, n. 84 (1983). The bill underwent further change in the legislative process but, when passed, was vetoed by the Governor. See 737 F.2d 283, 288-289 (CA3 1984). Finally, the 1982 Act was formulated, enacted, and approved. </s> After the passage of the Act, but before its effective date, the present litigation was instituted in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs, who are the appellees here, were the American College of Obstetricians and Gynecologists, Pennsylvania Section; certain physicians licensed in Pennsylvania; clergymen; an individual who purchases from a Pennsylvania insurer health-care and disability insurance extending to abortions; and Pennsylvania abortion counselors and providers. Alleging that the Act violated the United States Constitution, the plaintiffs, pursuant to 42 U.S.C. 1983, sought declaratory and injunctive relief. The defendants named in the complaint were the Governor of the Commonwealth, other Commonwealth officials, and the District Attorney for Montgomery County, Pa. </s> The plaintiffs promptly filed a motion for a preliminary injunction. Forty-one affidavits accompanied the motion. The defendants, on their part, submitted what the Court of Appeals described as "an equally comprehensive opposing memorandum." 737 F.2d, at 289. The District Court then ordered the parties to submit a "stipulation of uncontested facts," as authorized by local rule. The parties produced a stipulation "solely for purposes of a determination on plaintiffs' [476 U.S. 747, 753] motion for preliminary injunction," and "without prejudice to any party's right to controvert any facts or to prove any additional facts at any later proceeding in this action." App. 9a-10a. </s> Relying substantially on the opinions of the respective Courts of Appeals in Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198 (CA6 1981), later aff'd in part and rev'd in part, 462 U.S. 416 (1983), and in Planned Parenthood Assn. of Kansas City v. Ashcroft, 655 F.2d 848 (CA8 1981), later aff'd in part and rev'd in part, 462 U.S. 476 (1983), the District Court concluded that, with one exception, see n. 1, supra, the plaintiffs had failed to establish a likelihood of success on the merits and thus were not entitled to preliminary injunctive relief. 552 F. Supp. 791 (1982). </s> Appellees appealed from the denial of the preliminary injunction, and appellants cross-appealed with respect to the single statutory provision as to which the District Court had allowed relief. The Third Circuit then granted appellees' motion to enjoin enforcement of the entire Act pending appeal. After expedited briefing and argument, the court withheld judgment pending the anticipated decisions by this Court in Akron, supra, Ashcroft, supra, and Simopoulos v. Commonwealth, 221 Va. 1059, 277 S. E. 2d 194 (1981), all of which had been accepted for review here, had been argued, and were under submission. Those three cases were decided by this Court on June 15, 1983. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 ; Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476 ; Simopoulos v. Virginia, 462 U.S. 506 . After reargument in light of those decisions, the Court of Appeals, with one judge concurring in part and dissenting in part, ruled that various provisions of the Act were unconstitutional. 737 F.2d 283 (1984). Appellants' petition for rehearing en banc was denied, with four judges voting to grant the petition. Id., at 316, 317. When a jurisdictional statement [476 U.S. 747, 754] was filed here, we postponed further consideration of the question of our jurisdiction to the hearing on the merits. 471 U.S. 1014 (1985). </s> II </s> We are confronted initially with the question whether we have appellate jurisdiction in this case. Appellants purport to have taken their appeal to this Court pursuant to 28 U.S.C. 1254(2). 4 It seems clear, and the parties appear to agree, see Brief for Appellants 21, that the judgment of the Court of Appeals was not a final judgment in the ordinary meaning of that term. The court did not hold the entire Act unconstitutional, but ruled, instead, that some provisions were invalid under Akron, Ashcroft, and Simopoulos, and that the validity of other provisions might depend on evidence adduced at the trial, see 737 F.2d, at 299-300, or on procedural rules to be promulgated by the Supreme Court of Pennsylvania, see id., at 296-297. It remanded these features of the case to the District Court. Id., at 304. </s> Slaker v. O'Connor, 278 U.S. 188, 189 -190 (1929), and McLish v. Roff, 141 U.S. 661, 665 -666 (1891), surely suggest that, under these circumstances, we do not have appellate jurisdiction. 5 See also South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901 (1956). Although the authority of Slaker and South Carolina Electric has been questioned, the Court to date has found it unnecessary to put the issue to rest. See Doran v. Salem Inn, Inc., 422 U.S. 922, 927 (1975); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 43 -44, n. 1 (1986). In some cases raising this issue of the [476 U.S. 747, 755] scope of appellate jurisdiction, the Court has found any finality requirement to have been satisfied in light of the facts. See, e. g., New Orleans v. Dukes, 427 U.S. 297, 302 (1976); Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 82 -83 (1958). In other cases, the Court has avoided the issue by utilizing 28 U.S.C. 2103 and granting certiorari. See, e. g., Doran, 422 U.S., at 927 ; El Paso v. Simmons, 379 U.S. 497, 503 (1965); see also Escambia County v. McMillan, 466 U.S. 48, 50 , n. 4 (1984). </s> We have concluded that it is time that this undecided issue be resolved. We therefore hold, on the reasoning of McLish v. Roff, 141 U.S., at 665 -668, that in a situation such as this one, where the judgment is not final, and where the case is remanded for further development of the facts, we have no appellate jurisdiction under 1254(2). </s> We nevertheless treat appellants' jurisdictional statement as a petition for certiorari, grant the writ, and move on to the merits. 6 </s> III </s> Appellants assert that the Court of Appeals erred in holding portions of the Act unconstitutional since the scope of its review of the District Court's denial of a preliminary injunction as to those sections should have been limited to determining whether the trial court abused its discretion in finding the presence or absence of irreparable harm and a probability that the plaintiffs would succeed on the merits. Such limited review normally is appropriate, see Doran v. Salem Inn, Inc., 422 U.S., at 931 -932; Brown v. Chote, 411 U.S. 452, 456 -457 (1973), inasmuch as the primary purpose of a preliminary injunction is to preserve the relative positions of the parties. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Further, the necessity for an expeditious resolution often means that the injunction is issued on a procedure [476 U.S. 747, 756] less stringent than that which prevails at the subsequent trial on the merits of the application for injunctive relief. See United States Steel Corp. v. Fraternal Assn. of Steelhaulers, 431 F.2d 1046, 1048 (CA3 1970); see also Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316 (1940). </s> This approach, however, is not inflexible. The Court on more than one occasion in this area has approved proceedings deviating from the stated norm. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the District Court had issued a preliminary injunction restraining the Secretary of Commerce from seizing the Nation's steel mills. The Court of Appeals stayed the injunction. This Court found that the case was ripe for review, despite the early stage of the litigation, and went on to address the merits. Id., at 585. And in Smith v. Vulcan Iron Works, 165 U.S. 518 (1897), the District Court issued injunctions in two patent cases and referred them to a Master for accounting. The Court of Appeals reversed. This Court ruled that the Court of Appeals had acted properly in deciding the merits since review of interlocutory appeals was designed not only to permit the defendant to obtain immediate relief but also in certain cases to save the parties the expense of further litigation. Id., at 525. </s> The Third Circuit's decision to address the constitutionality of the Pennsylvania Act finds further support in this Court's decisions that when the unconstitutionality of the particular state action under challenge is clear, a federal court need not abstain from addressing the constitutional issue pending state-court review. See, e. g., Bailey v. Patterson, 369 U.S. 31, 33 (1962); Turner v. City of Memphis, 369 U.S. 350, 353 (1962); Zwickler v. Koota, 389 U.S. 241, 251 , n. 14 (1967). See also Singleton v. Wulff, 428 U.S. 106, 121 (1976). See generally Spann, Simple Justice, 73 Geo. L. J. 1041, 1055, n. 77 (1985). 7 </s> [476 U.S. 747, 757] </s> Thus, as these cases indicate, if a district court's ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction. 8 The Court of Appeals in this case properly recognized and applied these principles when it observed: </s> "Thus, although this appeal arises from a ruling on a request for a preliminary injunction, we have before us an unusually complete factual and legal presentation from which to address the important constitutional issues at stake. The customary discretion accorded to a District Court's ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law." 737 F.2d, at 290. </s> That a court of appeals ordinarily will limit its review in a case of this kind to abuse of discretion is a rule of orderly judicial administration, not a limit on judicial power. With a full record before it on the issues now before us, and with the intervening decisions in Akron, Ashcroft, and Simopoulos at hand, the Court of Appeals was justified in proceeding to plenary review of those issues. [476 U.S. 747, 758] </s> IV </s> This case, as it comes to us, concerns the constitutionality of six provisions of the Pennsylvania Act that the Court of Appeals struck down as facially invalid: 3205 ("informed consent"); 3208 ("printed information"); 3214(a) and (h) (reporting requirements); 3211(a) (determination of viability); 3210(b) (degree of care required in postviability abortions); and 3210(c) (second-physician requirement). We have no reason to address the validity of the other sections of the Act challenged in the District Court. 9 </s> [476 U.S. 747, 759] </s> A </s> Less than three years ago, this Court, in Akron, Ashcroft, and Simopoulos, reviewed challenges to state and municipal legislation regulating the performance of abortions. In Akron, the Court specifically reaffirmed Roe v. Wade, 410 U.S. 113 (1973). See 462 U.S., at 420 , 426-431. Again today, we reaffirm the general principles laid down in Roe and in Akron. </s> In the years since this Court's decision in Roe, States and municipalities have adopted a number of measures seemingly designed to prevent a woman, with the advice of her physician, from exercising her freedom of choice. Akron is but one example. But the constitutional principles that led this Court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy. "[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Brown v. Board of Education, 349 U.S. 294, 300 (1955). The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. Appellants claim that the statutory provisions before us today further legitimate compelling interests of the Commonwealth. Close analysis of those provisions, however, shows that they wholly subordinate constitutional privacy interests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make. </s> B </s> We turn to the challenged statutes: </s> 1. Section 3205 ("informed consent") and 3208 ("printed information"). Section 3205(a) requires that the woman give her "voluntary and informed consent" to an abortion. Failure to observe the provisions of 3205 subjects the physician to suspension or revocation of his license, and subjects any [476 U.S. 747, 760] other person obligated to provide information relating to informed consent to criminal penalties. 3205(c). A requirement that the woman give what is truly a voluntary and informed consent, as a general proposition, is, of course, proper and is surely not unconstitutional. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 67 (1976). But the State may not require the delivery of information designed "to influence the woman's informed choice between abortion or childbirth." Akron, 462 U.S., at 443 -444. </s> Appellants refer to the Akron ordinance, Brief for Appellants 67, as did this Court in Akron itself, 462 U.S., at 445 , as "a litany of information" and as "`a parade of horribles'" of dubious validity plainly designed to influence the woman's choice. They would distinguish the Akron situation, however, from the Pennsylvania one. Appellants assert that statutes "describing the general subject matter relevant to informed consent," ibid., and stating "in general terms the information to be disclosed," id., at 447, are permissible, and they further assert that the Pennsylvania statutes do no more than that. </s> We do not agree. We conclude that, like Akron's ordinance, 3205 and 3208 fail the Akron measurement. The two sections prescribe in detail the method for securing "informed consent." Seven explicit kinds of information must be delivered to the woman at least 24 hours before her consent is given, and five of these must be presented by the woman's physician. The five are: (a) the name of the physician who will perform the abortion, (b) the "fact that there may be detrimental physical and psychological effects which are not accurately foreseeable," (c) the "particular medical risks associated with the particular abortion procedure to be employed," (d) the probable gestational age, and (e) the "medical risks associated with carrying her child to term." The remaining two categories are (f) the "fact that medical assistance benefits may be available for prenatal care, childbirth [476 U.S. 747, 761] and neonatal care," and (g) the "fact that the father is liable to assist" in the child's support, "even in instances where the father has offered to pay for the abortion." 3205(a)(1) and (2). The woman also must be informed that materials printed and supplied by the Commonwealth that describe the fetus and that list agencies offering alternatives to abortion are available for her review. If she chooses to review the materials but is unable to read, the materials "shall be read to her," and any answer she seeks must be "provided her in her own language." 3205(a)(2)(iii). She must certify in writing, prior to the abortion, that all this has been done. 3205(a)(3). The printed materials "shall include the following statement": </s> "`There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption. The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion.'" 3208(a)(1). </s> The materials must describe the "probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information on the possibility of the unborn child's survival." 3208(a)(2). </s> In Akron, this Court noted: "The validity of an informed consent requirement thus rests on the State's interest in protecting the health of the pregnant woman." 462 U.S., at 443 . The Court went on to state: </s> "This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an [476 U.S. 747, 762] abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth's recognition of the State's interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman's informed choice between abortion or childbirth." Id., at 443-444. </s> The informational requirements in the Akron ordinance were invalid for two "equally decisive" reasons. Id., at 445. The first was that "much of the information required is designed not to inform the woman's consent but rather to persuade her to withhold it altogether." Id., at 444. The second was that a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient, intrudes upon the discretion of the pregnant woman's physician and thereby imposes the "undesired and uncomfortable straitjacket" with which the Court in Danforth, 428 U.S., at 67 , n. 8, was concerned. </s> These two reasons apply with equal and controlling force to the specific and intrusive informational prescriptions of the Pennsylvania statutes. The printed materials required by 3205 and 3208 seem to us to be nothing less than an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician. The mandated description of fetal characteristics at 2-week intervals, no matter how objective, is plainly overinclusive. This is not medical information that is always relevant to the woman's decision, and it may serve only to confuse and punish her and to heighten her anxiety, contrary to accepted medical practice. 10 Even the listing of agencies in the printed Pennsylvania [476 U.S. 747, 763] form presents serious problems; it contains names of agencies that well may be out of step with the needs of the particular woman and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and the list. See Women's Medical Center of Providence, Inc. v. Roberts, 530 F. Supp. 1136, 1154 (RI 1982). All this is, or comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks, and it officially structures - as it obviously was intended to do - the dialogue between the woman and her physician. </s> The requirements of 3205(a)(2)(i) and (ii) that the woman be advised that medical assistance benefits may be available, and that the father is responsible for financial assistance in the support of the child similarly are poorly disguised elements of discouragement for the abortion decision. Much of this would be nonmedical information beyond the physician's area of expertise and, for many patients, would be irrelevant and inappropriate. For a patient with a life-threatening pregnancy, the "information" in its very rendition may be cruel as well as destructive of the physician-patient relationship. As any experienced social worker or other counselor knows, theoretical financial responsibility often does not equate with fulfillment. And a victim of rape should not have to hear gratuitous advice that an unidentified perpetrator is liable for support if she continues the pregnancy to term. Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to such consent, and, thus, it advances no legitimate state interest. [476 U.S. 747, 764] </s> The requirements of 3205(a)(1)(ii) and (iii) that the woman be informed by the physician of "detrimental physical and psychological effects" and of all "particular medical risks" compound the problem of medical attendance, increase the patient's anxiety, and intrude upon the physician's exercise of proper professional judgment. This type of compelled information is the antithesis of informed consent. That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose. Pennsylvania, like Akron, "has gone far beyond merely describing the general subject matter relevant to informed consent." Akron, 462 U.S., at 445 . In addition, the Commonwealth would require the physician to recite its litany "regardless of whether in his judgment the information is relevant to [the patient's] personal decision." Ibid. These statutory defects cannot be saved by any facts that might be forthcoming at a subsequent hearing. Section 3205's informational requirements therefore are facially unconstitutional. 11 </s> Appellants assert, however, that even if this be so, the remedy is to allow the remainder of 3205 to be severed and become effective. We rule otherwise. The radical dissection necessary for this would leave 3205 with little resemblance to that intended by the Pennsylvania Legislature. We rejected a similar suggestion as to the ordinance in [476 U.S. 747, 765] Akron, 462 U.S. at 445, n. 37, despite the presence there of a broad severability clause. We reach the same conclusion here, where no such clause is present, and reject the plea for severance. See Carter v. Carter Coal Co., 298 U.S. 238, 312 -313 (1936). </s> 2. Sections 3214(a) and (h) (reporting) and 3211(a) (determination of viability). Section 3214(a)(8), part of the general reporting section, incorporates 3211(a). Section 3211(a) requires the physician to report the basis for his determination "that a child is not viable." It applies only after the first trimester. The report required by 3214(a) and (h) is detailed and must include, among other things, identification of the performing and referring physicians and of the facility or agency; information as to the woman's political subdivision and State of residence, age, race, marital status, and number of prior pregnancies; the date of her last menstrual period and the probable gestational age; the basis for any judgment that a medical emergency existed; the basis for any determination of nonviability; and the method of payment for the abortion. The report is to be signed by the attending physician. 3214(b). </s> Despite the fact that 3214(e)(2) provides that such reports "shall not be deemed public records," within the meaning of the Commonwealth's "Right-to-Know Law," Pa. Stat. Ann., Tit. 65, 66.1 et seq. (Purdon 1959 and Supp. 1985), each report "shall be made available for public inspection and copying within 15 days of receipt in a form which will not lead to the disclosure of the identity of any person filing a report." Similarly, the report of complications, required by 3214(h), "shall be open to public inspection and copying." A willful failure to file a report required under 3214 is "unprofessional conduct" and the noncomplying physician's license "shall be subject to suspension or revocation." 3214(i)(1). </s> The scope of the information required and its availability to the public belie any assertions by the Commonwealth that it is advancing any legitimate interest. In Planned Parenthood [476 U.S. 747, 766] of Central Missouri v. Danforth, 428 U.S., at 80 , we recognized that recordkeeping and reporting provisions "that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible." But the reports required under the Act before us today go well beyond the health-related interests that served to justify the Missouri reports under consideration in Danforth. Pennsylvania would require, as Missouri did not, information as to method of payment, as to the woman's personal history, and as to the bases for medical judgments. The Missouri reports were to be used "only for statistical purposes." See id., at 87. They were to be maintained in confidence, with the sole exception of public health officers. In Akron, the Court explained its holding in Danforth when it said: "The decisive factor was that the State met its burden of demonstrating that these regulations furthered important health-related state concerns." 462 U.S., at 430 . </s> The required Pennsylvania reports, on the other hand, while claimed not to be "public," are available nonetheless to the public for copying. Moreover, there is no limitation on the use to which the Commonwealth or the public copiers may put them. The elements that proved persuasive for the ruling in Danforth are absent here. The decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity. JUSTICE STEVENS, in his opinion concurring in the judgment in Bellotti v. Baird, 443 U.S. 622 (1979), aptly observed: </s> "It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties." Id., at 655. </s> A woman and her physician will necessarily be more reluctant to choose an abortion if there exists a possibility that her decision and her identity will become known publicly. Although the statute does not specifically require the reporting [476 U.S. 747, 767] of the woman's name, the amount of information about her and the circumstances under which she had an abortion are so detailed that identification is likely. Identification is the obvious purpose of these extreme reporting requirements. 12 The "impermissible limits" that Danforth mentioned and that Missouri approached, see 428 U.S., at 81 , have been exceeded here. </s> We note, as we reach this conclusion, that the Court consistently has refused to allow government to chill the exercise of constitutional rights by requiring disclosure of protected, but sometimes unpopular, activities. See, e. g., Lamont v. Postmaster General, 381 U.S. 301 (1965) (invalidating Post Office requirement that addressee affirmatively request delivery of "communist" materials in order to receive them); Talley v. California, 362 U.S. 60, 64 -65 (1960) (striking down municipal ban on unsigned handbills); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 -465 (1958) (invalidating compelled disclosure of NAACP membership list). Pennsylvania's reporting requirements raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable [476 U.S. 747, 768] danger of deterring the exercise of that right, and must be invalidated. </s> 3. Section 3210(b) (degree of care for postviability abortions) and 3210(c) (second-physician requirement when the fetus is possibly viable). Section 3210(b) 13 sets forth two independent requirements for a postviability abortion. First, it demands the exercise of that degree of care "which such person would be required to exercise in order to preserve the life and health of any unborn child intended to be born and not aborted." Second, "the abortion technique employed shall be that which would provide the best opportunity for the unborn child to be aborted alive unless," in the physician's good-faith judgment, that technique "would present a significantly greater medical risk to the life or health of the pregnant woman." An intentional, knowing, or reckless violation of this standard is a felony of the third degree, and subjects the violator to the possibility of imprisonment for not more than seven years and to a fine of not more than $15,000. See 18 Pa. Cons. Stat. 1101(2) and 1103(3) (1982). </s> The Court of Appeals ruled that 3210(b) was unconstitutional because it required a "trade-off" between the woman's health and fetal survival, and failed to require that maternal [476 U.S. 747, 769] health be the physician's paramount consideration. 737 F.2d, at 300, citing Colautti v. Franklin, 439 U.S. 379, 397 -401 (1979) (where Pennsylvania's 1974 Abortion Control Act was reviewed). In Colautti, this Court recognized the undesirability of any "`trade-off' between the woman's health and additional percentage points of fetal survival." Id., at 400. </s> Appellants do not take any real issue with this proposition. See Brief for Appellants 84-86. They argue instead, as did the District Court, see 552 F. Supp., at 806-807, that the statute's words "significantly greater medical risk" for the life or health of the woman do not mean some additional risk (in which case unconstitutionality apparently is conceded) but only a "meaningfully increased" risk. That interpretation, said the District Court, renders the statute constitutional. Id., at 807. The Court of Appeals disagreed, pointing out that such a reading is inconsistent with the statutory language and with the legislative intent reflected in that language; that the adverb "significantly" modifies the risk imposed on the woman; that the adverb is "patently not surplusage"; and that the language of the statute "is not susceptible to a construction that does not require the mother to bear an increased medical risk in order to save her viable fetus." 737 F.2d, at 300. We agree with the Court of Appeals and therefore find the statute to be facially invalid. 14 </s> Section 3210(c) 15 requires that a second physician be present during an abortion performed when viability is possible. [476 U.S. 747, 770] The second physician is to "take control of the child and . . . provide immediate medical care for the child, taking all reasonable steps necessary, in his judgment, to preserve the child's life and health." Violation of this requirement is a felony of the third degree. </s> In Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476 (1983), the Court, by a 5-4 vote, but not by a controlling single opinion, ruled that a Missouri statute requiring the presence of a second physician during an abortion performed after viability was constitutional. JUSTICE POWELL, joined by THE CHIEF JUSTICE, concluded that the State had a compelling interest in protecting the life of a viable fetus and that the second physician's presence provided assurance that the State's interest was protected more fully than with only one physician in attendance. Id., at 482-486. 16 JUSTICE POWELL recognized that, to pass constitutional muster, the statute must contain an exception for the situation where the health of the mother was endangered by delay in the arrival of the second physician. Recognizing that there was "no clearly expressed exception" on the face of the Missouri statute for the emergency situation, JUSTICE POWELL found the exception implicit in the statutory requirement that action be taken to preserve the fetus "provided it does not pose an increased risk to the life or health of the woman." Id., at 485, n. 8. </s> Like the Missouri statute, 3210(c) of the Pennsylvania statute contains no express exception for an emergency situation. While the Missouri statute, in the view of JUSTICE POWELL, was worded sufficiently to imply an emergency exception, Pennsylvania's statute contains no such comforting or [476 U.S. 747, 771] helpful language and evinces no intent to protect a woman whose life may be at risk. Section 3210(a) 17 provides only a defense to criminal liability for a physician who concluded, in good faith, that a fetus was nonviable "or that the abortion was necessary to preserve maternal life or health." It does not relate to the second-physician requirement and its words are not words of emergency. </s> It is clear that the Pennsylvania Legislature knows how to provide a medical-emergency exception when it chooses to do so. It defined "[m]edical emergency" in general terms in 3203, and it specifically provided a medical-emergency exception with respect to informational requirements, 3205(b); for parental consent, 3206; for post-first-trimester hospitalization, 3209; and for a public official's issuance of an order for an abortion without the express voluntary consent of the woman, 3215(f). We necessarily conclude that the legislature's failure to provide a medical-emergency exception in 3210(c) was intentional. All the factors are here for chilling the performance of a late abortion, which, more than one performed at an earlier date, perhaps tends to be under emergency conditions. </s> V </s> Constitutional rights do not always have easily ascertainable boundaries, and controversy over the meaning of our Nation's most majestic guarantees frequently has been turbulent. As judges, however, we are sworn to uphold the law even when its content gives rise to bitter dispute. See Cooper v. Aaron, 358 U.S. 1 (1958). We recognized at the very [476 U.S. 747, 772] beginning of our opinion in Roe, 410 U.S., at 116 , that abortion raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly. But those disagreements did not then and do not now relieve us of our duty to apply the Constitution faithfully. </s> Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. See, e. g., Carey v. Population Services International, 431 U.S. 678 (1977); Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). See also Whalen v. Roe, 429 U.S. 589, 598 -600 (1977). That promise extends to women as well as to men. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision - with the guidance of her physician and within the limits specified in Roe - whether to end her pregnancy. A woman's right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all. </s> The Court of Appeals correctly invalidated the specified provisions of Pennsylvania's 1982 Abortion Control Act. Its judgment is affirmed. </s> It is so ordered. </s> Footnotes [Footnote 1 The District Court had held invalid and had enjoined preliminarily only the requirement of 3205(a)(2) that at least 24 hours must elapse between a woman's receipt of specified information and the performance of her abortion. 552 F. Supp. 791, 797-798, 811 (ED Pa. 1982). </s> [Footnote 2 The Court of Appeals also held 3215(e) invalid. That section requires health-care insurers to make available, at a lesser premium, policies expressly excluding coverage "for abortion services not necessary to avert [476 U.S. 747, 751] the death of the woman or to terminate pregnancies caused by rape or incest." This ruling on 3215(e) is not before us. </s> [Footnote 3 A "tough-guy competition" is a physical contact bout between persons who lack professional experience and who attempt to render each other unconscious. See Note, 87 Dick. L. Rev. 373, 382, n. 84 (1983). </s> [Footnote 4 Section 1254 reads in pertinent part: </s> "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: </s> . . . . . </s> "(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States . . . ." </s> [Footnote 5 Appellants ask that Slaker be overruled. See Brief for Appellants 10, 22-25. </s> [Footnote 6 We continue, however, to refer to the parties as appellants and appellees, respectively. </s> [Footnote 7 This principle finds an analogy in an established doctrine of administrative law. In SEC v. Chenery Corp., 318 U.S. 80 (1943), the Court [476 U.S. 747, 757] ruled that a reviewing court could not affirm an agency on a principle the agency might not embrace. But the ruling in Chenery has not required courts to remand in futility. See Illinois v. ICC, 722 F.2d 1341, 1348-1349 (CA7 1983); see also Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L. J. 199. </s> [Footnote 8 A different situation is presented, of course, when there is no disagreement as to the law, but the probability of success on the merits depends on facts that are likely to emerge at trial. See Delaware & Hudson R. Co. v. United Transportation Union, 146 U.S. App. D.C. 142, 159, 450 F.2d 603, 620, cert. denied, 403 U.S. 911 (1971). See also Airco, Inc. v. Energy Research & Development Admin., 528 F.2d 1294, 1296 (CA7 1975); California ex rel. Younger v. Tahoe Regional Planning Agency, 516 F.2d 215, 217 (CA9), cert. denied, 423 U.S. 868 (1975); Natural Resources Defense Council, Inc. v. Morton, 148 U.S. App. D.C. 5, 10, 458 F.2d 827, 832 (1972); Benda v. Grand Lodge, 584 F.2d 308, 314 (CA9 1978), cert. dism'd, 441 U.S. 937 (1979); FTC v. Southwest Sunsites, Inc., 665 F.2d 711, 717 (CA5), cert. denied, 456 U.S. 973 (1982). </s> [Footnote 9 Not before us are: 3203 (definition of "abortion"); 3205 (24-hour waiting period and physician-only counselling); 3207(b) and 3214(f) (public disclosure of reports); 3209 (requirement of hospitalization for an abortion subsequent to the first trimester); 3210(a) (penalties for abortion after viability, and the "complete defense" thereto); 3215(c) (proscription of use of public funds for abortion services); and 3215(e) (compulsory availability of insurance excluding certain abortion services). </s> Remanded for record development or otherwise not invalidated, and therefore not before us, are: 3206 (parental consent - operation of statute enjoined until promulgation of rules by the Supreme Court of Pennsylvania assuring confidentiality and promptness of disposition); 3207(b) (abortion facilities and reports from them for public disclosure); and 3214(c), (d), (f), and (g) (other reporting requirements - challenges either not made or withdrawn). </s> On June 17, 1985, the District Court, after hearing, preliminarily enjoined the enforcement of 3207(b) and 3214(f). 613 F. Supp. 656 (ED Pa.). See n. 12, infra. </s> The Supreme Court of Pennsylvania issued the suggested rules, mentioned above, on November 26, 1984, after the appeal in this case was docketed here. See Pennsylvania Orphans' Court Rules 16.1 to 16.8, reprinted in Pa. Stat. Ann., Tit. 20, pp. 65, 66 (Purdon Supp. to 101-2507, 1986-1987). Appellants thereupon filed a motion with the District Court that the injunction against enforcement of 3206 be vacated. App. 53a. That court, however, denied the motion, concluding that it had no jurisdiction "to issue the order [appellants] seek" while the case was on appeal here. Id., at 57a, 61a. We decline appellants' suggestion that we now examine this feature of the case in the light of the new rules, for we conclude that this development should be considered by the District Court in the first instance. </s> [Footnote 10 Following this Court's lead in Akron, federal courts consistently have stricken fetal-description requirements because of their inflammatory impact. See, e. g., Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1021-1022 (CA1 1981); Charles v. Carey, 627 F.2d 772, [476 U.S. 747, 763] 784 (CA7 1980); Planned Parenthood Assn. of Kansas City v. Ashcroft, 655 F.2d 848, 868 (CA8 1981); Women's Medical Center of Providence, Inc. v. Roberts, 530 F. Supp. 1136, 1152-1154 (RI 1982). </s> [Footnote 11 In their argument against this conclusion, appellants claim that the informational requirements must be held constitutional in the light of this Court's summary affirmance in Franklin v. Fitzpatrick, 428 U.S. 901 (1976), of the judgment in Planned Parenthood Assn. v. Fitzpatrick, 401 F. Supp. 554 (ED Pa. 1975). That litigation concerned the Commonwealth's 1974 Abortion Control Act. Its informed-consent provision, however, did not contain such plainly unconstitutional informational requests as those in the current Act, or any physician-only counselling or 24-hour waiting-period requirements. The summary affirmance also preceded the decision in Akron and, to the extent, if any at all, it might be considered to be inconsistent with Akron, the latter, of course, controls. </s> [Footnote 12 Appellees advise us, see Brief for Appellees 38-39, that they sought in the District Court a preliminary injunction against the requirement that the facility identification report and the quarterly statistical report be made available for public inspection and copying, and that on June 17, 1985, after full hearing, the District Court entered a preliminary injunction against the enforcement of these public-disclosure requirements. Appellees assert that the record of that hearing shows a continuous pattern of violence and harassment directed against the patients and staff of abortion clinics; that the District Court concluded that this would be increased by the public disclosure of facility names and quarterly statistical reports; and that public disclosure would impose a burden on the woman's right to an abortion by heightening her fear and anxiety, and by discouraging her physician from offering an abortion because, by so doing, he would avoid pressure from anti-abortion forces. That record, of course, is not now before us. We need place no reliance upon it and we draw no conclusion from it. </s> [Footnote 13 Section 3210(b) reads: </s> "Every person who performs or induces an abortion after an unborn child has been determined to be viable shall exercise that degree of professional skill, care and diligence which such person would be required to exercise in order to preserve the life and health of any unborn child intended to be born and not aborted and the abortion technique employed shall be that which would provide the best opportunity for the unborn child to be aborted alive unless, in the good faith judgment of the physician, that method or technique would present a significantly greater medical risk to the life or health of the pregnant woman than would another available method or technique and the physician reports the basis for his judgment. The potential psychological or emotional impact on the mother of the unborn child's survival shall not be deemed a medical risk to the mother. Any person who intentionally, knowingly or recklessly violates the provisions of this subsection commits a felony of the third degree." </s> [Footnote 14 This makes it unnecessary for us to consider appellees' further argument that 3210(b) is void for vagueness. </s> [Footnote 15 Section 3210(c) reads: </s> "Any person who intends to perform an abortion the method chosen for which, in his good faith judgment, does not preclude the possibility of the child surviving the abortion, shall arrange for the attendance, in the same room in which the abortion is to be completed, of a second physician. Immediately after the complete expulsion or extraction of the child, the second physician shall take control of the child and shall provide immediate medical care for the child, taking all reasonable steps necessary, in his [476 U.S. 747, 770] judgment, to preserve the child's life and health. Any person who intentionally, knowingly or recklessly violates the provisions of this subsection commits a felony of the third degree." </s> [Footnote 16 JUSTICE O'CONNOR, joined by JUSTICE WHITE and REHNQUIST, stated somewhat categorically that the second-physician requirement was constitutional. 462 U.S., at 505 . </s> [Footnote 17 Section 3210(a) reads: </s> "Any person who intentionally, knowingly or recklessly performs or induces an abortion when the fetus is viable commits a felony of the third degree. It shall be a complete defense to any charge brought against a physician for violating the requirements of this section that he had concluded in good faith, in his best medical judgment, that the unborn child was not viable at the time the abortion was performed or induced or that the abortion was necessary to preserve maternal life or health." </s> JUSTICE STEVENS, concurring. </s> The scope of the individual interest in liberty that is given protection by the Due Process Clause of the Fourteenth Amendment is a matter about which conscientious judges have long disagreed. Although I believe that that interest is significantly broader than JUSTICE WHITE does, 1 I have always [476 U.S. 747, 773] had the highest respect for his views on this subject. 2 In this case, although our ultimate conclusions differ, it may be useful to emphasize some of our areas of agreement in order to ensure that the clarity of certain fundamental propositions not be obscured by his forceful rhetoric. </s> Let me begin with a reference to Griswold v. Connecticut, 381 U.S. 479 (1965), the case holding that a State may not totally forbid the use of birth control devices. Although the Court's opinion relied on a "right of marital privacy" within the "penumbra" of the Bill of Rights, id., at 481-486, JUSTICE WHITE's concurring opinion went right to the heart of the issue. He wrote: </s> "It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right `to marry, establish a home and bring up children,' Meyer v. Nebraska, 262 U.S. 390, 399 , and `the liberty . . . to direct the upbringing and education of children,' Pierce v. Society of Sisters, 268 U.S. 510, 534 -535, and that these are among `the basic civil rights of man.' Skinner v. Oklahoma, 316 U.S. 535, 541 . These decisions affirm that there is a `realm of family life which the state cannot enter' without substantial justification. Prince v. Massachusetts, 321 U.S. 158, 166 . Surely the right invoked in this case, to be free of regulation of the intimacies of the marriage relationship, `come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' [476 U.S. 747, 774] Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.)." Id., at 502-503 (WHITE, J., concurring in the judgment). </s> He concluded that the statute could not be constitutionally applied to married persons, explaining: </s> "I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law." Id., at 507. </s> That conclusion relied in part on the fact that the statute involved "sensitive areas of liberty" 3 and in part on the absence of any colorable justification for applying the statute to married couples. </s> In Eisenstadt v. Baird, 405 U.S. 438 (1972), JUSTICE WHITE concluded that a similar Massachusetts statute was invalid as applied to a person whom the record did not identify as either married or unmarried, id., at 464-465, and in Carey v. Population Services International, 431 U.S. 678 (1977), he subscribed to this explanation of the holdings in Griswold and Eisenstadt: </s> "The fatal fallacy in [the appellants'] argument is that it overlooks the underlying premise of those decisions that the Constitution protects `the right of the individual [476 U.S. 747, 775] . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.' [Eisenstadt v. Baird, 405 U.S.] at 453. Griswold did state that by `forbidding the use of contraceptives rather than regulating their manufacture or sale,' the Connecticut statute there had `a maximum destructive impact' on privacy rights. 381 U.S., at 485 . This intrusion into `the sacred precincts of marital bedrooms' made that statute particularly `repulsive.' Id., at 485-486. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding that the protection is not limited to married couples, characterized the protected right as the `decision whether to bear or beget a child.' 405 U.S., at 453 (emphasis added). Similarly, Roe v. Wade, held that the Constitution protects `a woman's decision whether or not to terminate her pregnancy.' 410 U.S., at 153 (emphasis added). See also Whalen v. Roe, [429 U.S. 589 ,] 599-600, and n. 26. These decisions put Griswold in proper perspective. Griswold may no longer be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State." 431 U.S., at 687 ; id., at 702 (WHITE, J., concurring in pertinent part and concurring in result). </s> Thus, the aspect of liberty at stake in this case is the freedom from unwarranted governmental intrusion into individual decisions in matters of childbearing. As JUSTICE WHITE explained in Griswold, that aspect of liberty comes to this Court with a momentum for respect that is lacking when appeal is made to liberties which derive merely from shifting economic arrangements. [476 U.S. 747, 776] </s> Like the birth control statutes involved in Griswold and Baird, the abortion statutes involved in Roe v. Wade, 410 U.S. 113 (1973), and in the case before us today apply equally to decisions made by married persons and by unmarried persons. Consistently with his views in those cases, JUSTICE WHITE agrees that "a woman's ability to choose an abortion is a species of `liberty' that is subject to the general protections of the Due Process Clause." Post, at 790. His agreement with that "indisputable" proposition, ibid., is not qualified or limited to decisions made by pregnant women who are married and, indeed, it would be a strange form of liberty if it were so limited. </s> Up to this point in JUSTICE WHITE's analysis, his opinion is fully consistent with the accepted teachings of the Court and with the major premises of Roe v. Wade. For reasons that are not entirely clear, however, JUSTICE WHITE abruptly announces that the interest in "liberty" that is implicated by a decision not to bear a child that is made a few days after conception is less fundamental than a comparable decision made before conception. Post, at 791-792. There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before. Indeed, if one decision is more "fundamental" to the individual's freedom than the other, surely it is the postconception decision that is the more serious. Thus, it is difficult for me to understand how JUSTICE WHITE reaches the conclusion that restraints upon this aspect of a woman's liberty do not "call into play anything more than the most minimal judicial scrutiny." Post, at 790. 4 </s> [476 U.S. 747, 777] </s> If JUSTICE WHITE were correct in regarding the post-conception decision of the question whether to bear a child as a relatively unimportant, second-class sort of interest, I might agree with his view that the individual should be required to conform her decision to the will of the majority. But if that decision commands the respect that is traditionally associated with the "sensitive areas of liberty" protected by the Constitution, as JUSTICE WHITE characterized reproductive decisions in Griswold, 381 U.S., at 503 , no individual should be compelled to surrender the freedom to make that decision for herself simply because her "value preferences" are not shared by the majority. 5 In a sense, the basic question is whether the "abortion decision" should be made by the individual or by the majority "in the unrestrained imposition [476 U.S. 747, 778] of its own, extraconstitutional value preferences." Post, at 794. But surely JUSTICE WHITE is quite wrong in suggesting that the Court is imposing value preferences on anyone else. Ibid. 6 </s> JUSTICE WHITE is also surely wrong in suggesting that the governmental interest in protecting fetal life is equally compelling during the entire period from the moment of conception until the moment of birth. Post, at 795. Again, I recognize that a powerful theological argument can be made for that position, but I believe our jurisdiction is limited to the evaluation of secular state interests. 7 I should think it obvious that the State's interest in the protection of an embryo - even if that interest is defined as "protecting those who will be citizens," ibid. - increases progressively and dramatically as the organism's capacity to feel pain, to experience pleasure, to survive, and to react to its surroundings increases day by day. The development of a fetus - and pregnancy itself - are not static conditions, and the assertion that the government's interest is static simply ignores this reality. [476 U.S. 747, 779] </s> Nor is it an answer to argue that life itself is not a static condition, and that "there is no nonarbitrary line separating a fetus from a child, or indeed, an adult human being," post, at 792. For, unless the religious view that a fetus is a "person" is adopted - a view JUSTICE WHITE refuses to embrace, ibid. - there is a fundamental and well-recognized difference between a fetus and a human being; indeed, if there is not such a difference, the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures. 8 And if distinctions may be drawn between a fetus and a human being in terms of the state interest in their protection - even though the fetus represents one of "those who will be citizens" - it seems to me quite odd to argue that distinctions may not also be drawn between the state interest in protecting the freshly fertilized egg and the state interest in protecting the 9-month-gestated, fully sentient fetus on the eve of birth. Recognition of this distinction is supported not only by logic, but also by history 9 and by our shared experiences. </s> Turning to JUSTICE WHITE's comments on stare decisis, he is of course correct in pointing out that the Court "has not hesitated to overrule decisions, or even whole lines of cases, where experience, scholarship, and reflection demonstrated that their fundamental premises were not to be found in the Constitution." Post, at 787. But JUSTICE WHITE has not disavowed the "fundamental premises" on which the decision in Roe v. Wade rests. He has not disavowed the Court's prior approach to the interpretation of the word "liberty" or, more narrowly, the line of cases that culminated in the unequivocal holding, applied to unmarried persons and married persons alike, "that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by [476 U.S. 747, 780] the State." Carey, 431 U.S., at 687 ; id., at 702 (WHITE, J., concurring in pertinent part). 10 </s> Nor does the fact that the doctrine of stare decisis is not an absolute bar to the reexamination of past interpretations of the Constitution mean that the values underlying that doctrine may be summarily put to one side. There is a strong public interest in stability, and in the orderly conduct of our [476 U.S. 747, 781] affairs, that is served by a consistent course of constitutional adjudication. Acceptance of the fundamental premises that underlie the decision in Roe v. Wade, as well as the application of those premises in that case, places the primary responsibility for decision in matters of childbearing squarely in the private sector of our society. 11 The majority remains free to preach the evils of birth control and abortion and to persuade others to make correct decisions while the individual faced with the reality of a difficult choice having serious and personal consequences of major importance to her own future - perhaps to the salvation of her own immortal soul - remains free to seek and to obtain sympathetic guidance from those who share her own value preferences. </s> In the final analysis, the holding in Roe v. Wade presumes that it is far better to permit some individuals to make incorrect decisions than to deny all individuals the right to make decisions that have a profound effect upon their destiny. Arguably a very primitive society would have been protected from evil by a rule against eating apples; a majority familiar with Adam's experience might favor such a rule. But the lawmakers who placed a special premium on the protection of [476 U.S. 747, 782] individual liberty have recognized that certain values are more important than the will of a transient majority. 12 </s> [Footnote 1 Compare, e. g., his opinion for the Court in Meachum v. Fano, 427 U.S. 215 (1976), with my dissent in that case, id., at 229. </s> [Footnote 2 See, e. g., Stevens, Judicial Restraint, 22 San Diego L. Rev. 437, 449-450 (1985). </s> [Footnote 3 "The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under the cases of this Court, require `strict scrutiny,' Skinner v. Oklahoma, 316 U.S. 535, 541 , and `must be viewed in the light of less drastic means for achieving the same basic purpose.' Shelton v. Tucker, 364 U.S. 479, 488 . `Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.' Bates v. Little Rock, 361 U.S. 516, 524 . See also McLaughlin v. Florida, 379 U.S. 184 . But such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid under the Due Process Clause. Zemel v. Rusk, 381 U.S. 1 ." 381 U.S., at 503 -504. </s> [Footnote 4 At times JUSTICE WHITE's rhetoric conflicts with his own analysis. For instance, his emphasis on the lack of a decision by "the people . . . in 1787, 1791, 1868, or any time since," post, at 797, stands in sharp contrast to his earlier, forthright rejection of "the simplistic view that constitutional interpretation can possibly be limited to `the plain meaning' of the Constitution's text or to the subjective intention of the Framers." Post, at 789. Similarly, his statement that an abortion decision should be [476 U.S. 747, 777] subject to "the will of the people," post, at 796, does not take us very far in determining which people - the majorities in state legislatures or the individuals confronted with unwanted pregnancies. In view of his agreement that the decision about abortion is "a species of liberty" protected by the Constitution, moreover, post, at 790, and in view of the fact that "liberty" plays a rather prominent role in our Constitution, his suggestion that the Court's evaluation of that interest represents the imposition of "extraconstitutional value preferences," post, at 794, seems to me inexplicable. This characterization of the Court's analysis as "extraconstitutional" also does not reflect JUSTICE WHITE's simultaneous recognition that "[t]he Constitution . . . is a document announcing fundamental principles in value-laden terms that leave ample scope for the exercise of normative judgment by those charged with interpreting and applying it." Post, at 789. Finally, I fail to see how the fact that "men and women of good will and high commitment to constitutional government," post, at 793, are on both sides of the abortion issue helps to resolve the difficult constitutional question before us; I take it that the disputants in most constitutional controversies in our free society can be similarly characterized. </s> [Footnote 5 "What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and by asserting a person's responsibility for the results of this self-determination we give substance to the concept of liberty." C. Fried, Right and Wrong, 146-147 (1978). </s> See also Fried, Correspondence, 6 Phil. & Pub. Aff. 288-289 (1977) (the concept of privacy embodies the "moral fact that a person belongs to himself and not others nor to society as a whole"). </s> [Footnote 6 JUSTICE WHITE's characterization of the governmental interest as "protecting those who will be citizens if their lives are not ended in the womb," post, at 795, reveals that his opinion may be influenced as much by his own value preferences as by his view about the proper allocation of decisionmaking responsibilities between the individual and the State. For if federal judges must allow the State to make the abortion decision, presumably the State is free to decide that a woman may never abort, may sometimes abort, or, as in the People's Republic of China, must always abort if her family is already too large. In contrast, our cases represent a consistent view that the individual is primarily responsible for reproductive decisions, whether the State seeks to prohibit reproduction, Skinner v. Oklahoma, 316 U.S. 535 (1942), or to require it, Roe v. Wade, 410 U.S. 113 (1973). </s> [Footnote 7 The responsibility for nurturing the soul of the newly born, as well as the unborn, rests with individual parents, not with the State. No matter how important a sacrament such as baptism may be, a State surely could not punish a mother for refusing to baptize her child. </s> [Footnote 8 No Member of this Court has ever suggested that a fetus is a "person" within the meaning of the Fourteenth Amendment. </s> [Footnote 9 See Roe v. Wade, supra, at 129-147. </s> [Footnote 10 He has, however, suggested that the concept of "liberty" is limited by two basic "definitions" of the values at stake. Post, at 790-791. Like JUSTICE WHITE, I share Justice Harlan's concern about "judges . . . roaming at large in the constitutional field." Ibid.; see also Stevens, 22 San Diego L. Rev., at 449-450. But I am convinced that JUSTICE WHITE's use of "definitions" is an inadequate substitute for the difficult process of analysis and judgment that the guarantee of liberty requires, a process nowhere better expressed than by Justice Harlan: </s> "Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. </s> . . . . . </s> "Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no `mechanical yardstick,' no `mechanical answer.' The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take `its place in relation to what went before and further [cut] a channel for what is to come.' Irvine v. California, 347 U.S. 128, 147 (dissenting opinion)." Poe v. Ullman, 367 U.S. 497, 542 -544 (1961) (Harlan, J., dissenting). </s> [Footnote 11 "These cases do not deal with the individual's interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating `basic values,' as being `fundamental,' and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom - the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases." Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 719-720 (CA7 1975) (footnotes omitted), cert. denied, 425 U.S. 916 (1976). </s> [Footnote 12 "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943). </s> CHIEF JUSTICE BURGER, dissenting. </s> I agree with much of JUSTICE WHITE's and JUSTICE O'CONNOR's dissents. In my concurrence in the companion case to Roe v. Wade, 410 U.S. 113 , in 1973, I noted: </s> "I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand." Doe v. Bolton, 410 U.S. 179, 208 (1973). </s> Later, in Maher v. Roe, 432 U.S. 464, 481 (1977), I stated my view that </s> "[t]he Court's holdings in Roe . . . and Doe v. Bolton . . . simply require that a State not create an absolute barrier to a woman's decision to have an abortion." </s> I based my concurring statements in Roe and Maher on the principle expressed in the Court's opinion in Roe that the right to an abortion "is not unqualified and must be considered against important state interests in regulation." 410 U.S., at 154 -155. In short, every Member of the Roe Court rejected the idea of abortion on demand. The Court's opinion today, however, plainly undermines that important [476 U.S. 747, 783] principle, and I regretfully conclude that some of the concerns of the dissenting Justices in Roe, as well as the concerns I expressed in my separate opinion, have now been realized. </s> The extent to which the Court has departed from the limitations expressed in Roe is readily apparent. In Roe, the Court emphasized </s> "that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . ." Id., at 162. </s> Yet today the Court astonishingly goes so far as to say that the State may not even require that a woman contemplating an abortion be provided with accurate medical information concerning the risks inherent in the medical procedure which she is about to undergo and the availability of state-funded alternatives if she elects not to run those risks. Can anyone doubt that the State could impose a similar requirement with respect to other medical procedures? Can anyone doubt that doctors routinely give similar information concerning risks in countless procedures having far less impact on life and health, both physical and emotional than an abortion, and risk a malpractice lawsuit if they fail to do so? </s> Yet the Court concludes that the State cannot impose this simple information-dispensing requirement in the abortion context where the decision is fraught with serious physical, psychological, and moral concerns of the highest order. Can it possibly be that the Court is saying that the Constitution forbids the communication of such critical information to a woman? * We have apparently already passed the point at [476 U.S. 747, 784] which abortion is available merely on demand. If the statute at issue here is to be invalidated, the "demand" will not even have to be the result of an informed choice. </s> The Court in Roe further recognized that the State "has still another important and legitimate interest" which is "separate and distinct" from the interest in protecting maternal health, i. e., an interest in "protecting the potentiality of human life." Ibid. The point at which these interests become "compelling" under Roe is at viability of the fetus. Id., at 163. Today, however, the Court abandons that standard and renders the solemnly stated concerns of the 1973 Roe opinion for the interests of the states mere shallow rhetoric. The statute at issue in this case requires that a second physician be present during an abortion performed after viability, so that the second physician can "take control of the child and . . . provide immediate medical care . . . taking all reasonable steps necessary, in his judgment, to preserve the child's life and health." 18 Pa. Cons. Stat. 3210(c) (1982). </s> Essentially this provision simply states that a viable fetus is to be cared for, not destroyed. No governmental power exists to say that a viable fetus should not have every protection required to preserve its life. Undoubtedly the Pennsylvania Legislature added the second-physician requirement on the mistaken assumption that this Court meant what it said in Roe concerning the "compelling interest" of the states in potential life after viability. </s> The Court's opinion today is but the most recent indication of the distance traveled since Roe. Perhaps the first important road marker was the Court's holding in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), in which the Court held (over the dissent of JUSTICE WHITE [476 U.S. 747, 785] joined by JUSTICE REHNQUIST and myself) that the State may not require that minors seeking an abortion first obtain parental consent. Parents, not judges or social workers, have the inherent right and responsibility to advise their children in matters of this sensitivity and consequence. Can one imagine a surgeon performing an amputation or even an appendectomy on a 14-year-old girl without the consent of a parent or guardian except in an emergency situation? </s> Yet today the Court goes beyond Danforth by remanding for further consideration of the provisions of Pennsylvania's statute requiring that a minor seeking an abortion without parental consent petition the appropriate court for authorization. Even if I were to agree that the Constitution requires that the states may not provide that a minor receive parental consent before undergoing an abortion, I would certainly hold that judicial approval may be required. This is in keeping with the longstanding common-law principle that courts may function in loco parentis when parents are unavailable or neglectful, even though courts are not very satisfactory substitutes when the issue is whether a 12-, 14-, or 16-year-old unmarried girl should have an abortion. In my view, no remand is necessary on this point because the statutory provision in question is constitutional. </s> In discovering constitutional infirmities in state regulations of abortion that are in accord with our history and tradition, we may have lured judges into "roaming at large in the constitutional field." Griswold v. Connecticut, 381 U.S. 479, 502 (1965) (Harlan, J., concurring). The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today's holding really mean what they seem to say, I agree we should reexamine Roe. </s> [Footnote * The Court's astounding rationale for this holding is that such information might have the effect of "discouraging abortion," ante, at 762, as though abortion is something to be advocated and encouraged. This is at odds not only with Roe but with our subsequent abortion decisions as well. As I stated in my opinion for the Court in H. L. v. Matheson, 450 U.S. 398 (1981), upholding a Utah statute requiring that a doctor notify the parents of a minor seeking an abortion: "The Constitution does not compel a state [476 U.S. 747, 784] to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action `encouraging childbirth except in the most urgent circumstances' is `rationally related to the legitimate governmental objective of protecting potential life.'" Id., at 413 (quoting Harris v. McRae, 448 U.S. 297, 325 (1980)). </s> JUSTICE WHITE, with whom JUSTICE REHNQUIST joins, dissenting. </s> Today the Court carries forward the "difficult and continuing venture in substantive due process," Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) [476 U.S. 747, 786] (WHITE, J., dissenting), that began with the decision in Roe v. Wade, 410 U.S. 113 (1973), and has led the Court further and further afield in the 13 years since that decision was handed down. I was in dissent in Roe v. Wade and am in dissent today. In Part I below, I state why I continue to believe that this venture has been fundamentally misguided since its inception. In Part II, I submit that even accepting Roe v. Wade, the concerns underlying that decision by no means command or justify the results reached today. Indeed, in my view, our precedents in this area, applied in a manner consistent with sound principles of constitutional adjudication, require reversal of the Court of Appeals on the ground that the provisions before us are facially constitutional. 1 </s> I </s> The rule of stare decisis is essential if case-by-case judicial decisionmaking is to be reconciled with the principle of the [476 U.S. 747, 787] rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results. But stare decisis is not the only constraint upon judicial decisionmaking. Cases - like this one - that involve our assumed power to set aside on grounds of unconstitutionality a state or federal statute representing the democratically expressed will of the people call other considerations into play. Because the Constitution itself is ordained and established by the people of the United States, constitutional adjudication by this Court does not, in theory at any rate, frustrate the authority of the people to govern themselves through institutions of their own devising and in accordance with principles of their own choosing. But decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people's authority, for such decisions represent choices that the people have never made and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken. </s> The Court has therefore adhered to the rule that stare decisis is not rigidly applied in cases involving constitutional issues, see Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (opinion of Harlan, J.), and has not hesitated to overrule decisions, or even whole lines of cases, where experience, scholarship, and reflection demonstrated that their fundamental premises were not to be found in the Constitution. Stare decisis did not stand in the way of the Justices who, in the late 1930's, swept away constitutional doctrines that had placed unwarranted restrictions on the power of the State and Federal Governments to enact social and economic legislation, see United States v. Darby, 312 U.S. 100 (1941); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Nor did stare decisis deter a different set of Justices, some 15 years [476 U.S. 747, 788] later, from rejecting the theretofore prevailing view that the Fourteenth Amendment permitted the States to maintain the system of racial segregation. Brown v. Board of Education, 347 U.S. 483 (1954). In both instances, history has been far kinder to those who departed from precedent than to those who would have blindly followed the rule of stare decisis. And only last Term, the author of today's majority opinion reminded us once again that "when it has become apparent that a prior decision has departed from a proper understanding" of the Constitution, that decision must be overruled. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 557 (1985). </s> In my view, the time has come to recognize that Roe v. Wade, no less than the cases overruled by the Court in the decisions I have just cited, "departs from a proper understanding" of the Constitution and to overrule it. I do not claim that the arguments in support of this proposition are new ones or that they were not considered by the Court in Roe or in the cases that succeeded it. Cf. Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 419 -420 (1983). But if an argument that a constitutional decision is erroneous must be novel in order to justify overruling that precedent, the Court's decisions in Lochner v. New York, 198 U.S. 45 (1905), and Plessy v. Ferguson, 163 U.S. 537 (1896), would remain the law, for the doctrines announced in those decisions were nowhere more eloquently or incisively criticized than in the dissenting opinions of Justices Holmes (in Lochner) and Harlan (in both cases). That the flaws in an opinion were evident at the time it was handed down is hardly a reason for adhering to it. </s> A </s> Roe v. Wade posits that a woman has a fundamental right to terminate her pregnancy, and that this right may be restricted only in the service of two compelling state interests: the interest in maternal health (which becomes compelling [476 U.S. 747, 789] only at the stage in pregnancy at which an abortion becomes more hazardous than carrying the pregnancy to term) and the interest in protecting the life of the fetus (which becomes compelling only at the point of viability). A reader of the Constitution might be surprised to find that it encompassed these detailed rules, for the text obviously contains no references to abortion, nor, indeed, to pregnancy or reproduction generally; and, of course, it is highly doubtful that the authors of any of the provisions of the Constitution believed that they were giving protection to abortion. As its prior cases clearly show, however, this Court does not subscribe to the simplistic view that constitutional interpretation can possibly be limited to the "plain meaning" of the Constitution's text or to the subjective intention of the Framers. The Constitution is not a deed setting forth the precise metes and bounds of its subject matter; rather, it is a document announcing fundamental principles in value-laden terms that leave ample scope for the exercise of normative judgment by those charged with interpreting and applying it. In particular, the Due Process Clause of the Fourteenth Amendment, which forbids the deprivation of "life, liberty, or property without due process of law," has been read by the majority of the Court to be broad enough to provide substantive protection against state infringement of a broad range of individual interests. See Moore v. East Cleveland, 431 U.S. 494, 541 -552 (1977) (WHITE, J., dissenting). </s> In most instances, the substantive protection afforded the liberty or property of an individual by the Fourteenth Amendment is extremely limited: State action impinging on individual interests need only be rational to survive scrutiny under the Due Process Clause, and the determination of rationality is to be made with a heavy dose of deference to the policy choices of the legislature. Only "fundamental" rights are entitled to the added protection provided by strict judicial scrutiny of legislation that impinges upon them. See id., at 499 (opinion of POWELL, J.); id., at 537 (Stewart, J., joined by [476 U.S. 747, 790] REHNQUIST, J., dissenting); id., at 547-549 (WHITE, J., dissenting). I can certainly agree with the proposition - which I deem indisputable - that a woman's ability to choose an abortion is a species of "liberty" that is subject to the general protections of the Due Process Clause. I cannot agree, however, that this liberty is so "fundamental" that restrictions upon it call into play anything more than the most minimal judicial scrutiny. </s> Fundamental liberties and interests are most clearly present when the Constitution provides specific textual recognition of their existence and importance. Thus, the Court is on relatively firm ground when it deems certain of the liberties set forth in the Bill of Rights to be fundamental and therefore finds them incorporated in the Fourteenth Amendment's guarantee that no State may deprive any person of liberty without due process of law. When the Court ventures further and defines as "fundamental" liberties that are nowhere mentioned in the Constitution (or that are present only in the so-called "penumbras" of specifically enumerated rights), it must, of necessity, act with more caution, lest it open itself to the accusation that, in the name of identifying constitutional principles to which the people have consented in framing their Constitution, the Court has done nothing more than impose its own controversial choices of value upon the people. </s> Attempts to articulate the constraints that must operate upon the Court when it employs the Due Process Clause to protect liberties not specifically enumerated in the text of the Constitution have produced varying definitions of "fundamental liberties." One approach has been to limit the class of fundamental liberties to those interests that are "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if [they] were sacrificed." Palko v. Connecticut, 302 U.S. 319, 325 , 326 (1937); see Moore v. East Cleveland, 431 U.S., at 537 (Stewart, J., joined by REHNQUIST, J., dissenting). Another, broader approach is [476 U.S. 747, 791] to define fundamental liberties as those that are "deeply rooted in this Nation's history and tradition." Id., at 503 (opinion of POWELL, J.); see also Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring). These distillations of the possible approaches to the identification of unenumerated fundamental rights are not and do not purport to be precise legal tests or "mechanical yardstick[s]," Poe v. Ullman, 367 U.S. 497, 544 (1961) (Harlan, J., dissenting). Their utility lies in their effort to identify some source of constitutional value that reflects not the philosophical predilections of individual judges, but basic choices made by the people themselves in constituting their system of government - "the balance struck by this country," id., at 542 (emphasis added) - and they seek to achieve this end through locating fundamental rights either in the traditions and consensus of our society as a whole or in the logical implications of a system that recognizes both individual liberty and democratic order. Whether either of these approaches can, as Justice Harlan hoped, prevent "judges from roaming at large in the constitutional field," Griswold, supra, at 502, is debatable. What for me is not subject to debate, however, is that either of the basic definitions of fundamental liberties, taken seriously, indicates the illegitimacy of the Court's decision in Roe v. Wade. </s> The Court has justified the recognition of a woman's fundamental right to terminate her pregnancy by invoking decisions upholding claims of personal autonomy in connection with the conduct of family life, the rearing of children, marital privacy, the use of contraceptives, and the preservation of the individual's capacity to procreate. See Carey v. Population Services International, 431 U.S. 678 (1977); Moore v. East Cleveland, supra; Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, supra; Skinner v. Oklahoma, 316 U.S. 535 (1942); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). Even if each of these cases was correctly decided [476 U.S. 747, 792] and could be properly grounded in rights that are "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition," the issues in the cases cited differ from those at stake where abortion is concerned. As the Court appropriately recognized in Roe v. Wade, "[t]he pregnant woman cannot be isolated in her privacy," 410 U.S., at 159 ; the termination of a pregnancy typically involves the destruction of another entity: the fetus. However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development - that is to say, the life - of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy. 2 Accordingly, the [476 U.S. 747, 793] decisions cited by the Court both in Roe and in its opinion today as precedent for the fundamental nature of the liberty to choose abortion do not, even if all are accepted as valid, dictate the Court's classification. </s> If the woman's liberty to choose an abortion is fundamental, then, it is not because any of our precedents (aside from Roe itself) command or justify that result; it can only be because protection for this unique choice is itself "implicit in the concept of ordered liberty" or, perhaps, "deeply rooted in this Nation's history and tradition." It seems clear to me that it is neither. The Court's opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people, as does the continuing and deep division of the people themselves over the question of abortion. As for the notion that choice in the matter of abortion is implicit in the concept of ordered liberty, it seems apparent to me that a free, egalitarian, and democratic society does not presuppose any particular rule or set of rules with respect to abortion. And again, the fact that many men and women of good will and high commitment to constitutional government place themselves on both sides of the abortion controversy strengthens my own conviction that the values animating the Constitution do not compel recognition [476 U.S. 747, 794] of the abortion liberty as fundamental. In so denominating that liberty, the Court engages not in constitutional interpretation, but in the unrestrained imposition of its own, extraconstitutional value preferences. 3 </s> B </s> A second, equally basic error infects the Court's decision in Roe v. Wade. The detailed set of rules governing state restrictions on abortion that the Court first articulated in Roe and has since refined and elaborated presupposes not only that the woman's liberty to choose an abortion is fundamental, but also that the State's countervailing interest in protecting fetal life (or, as the Court would have it, "potential human life," 410 U.S., at 159 ) becomes "compelling" only at the point at which the fetus is viable. As JUSTICE O'CONNOR pointed out three years ago in her dissent in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S., at 461 , the Court's choice of viability as the point at which the State's interest becomes compelling is entirely arbitrary. The Court's "explanation" for the line it has drawn is that the State's interest becomes compelling at viability "because the fetus then presumably has the capacity of meaningful life outside the mother's womb." 410 U.S., at 163 . As one critic [476 U.S. 747, 795] of Roe has observed, this argument "mistakes a definition for a syllogism." Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 924 (1973). </s> The governmental interest at issue is in protecting those who will be citizens if their lives are not ended in the womb. The substantiality of this interest is in no way dependent on the probability that the fetus may be capable of surviving outside the womb at any given point in its development, as the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant. The State's interest is in the fetus as an entity in itself, and the character of this entity does not change at the point of viability under conventional medical wisdom. Accordingly, the State's interest, if compelling after viability, is equally compelling before viability. 4 </s> [476 U.S. 747, 796] </s> C </s> Both the characterization of the abortion liberty as fundamental and the denigration of the State's interest in preserving the lives of nonviable fetuses are essential to the detailed set of constitutional rules devised by the Court to limit the States' power to regulate abortion. If either or both of these facets of Roe v. Wade were rejected, a broad range of limitations on abortion (including outright prohibition) that are now unavailable to the States would again become constitutional possibilities. </s> In my view, such a state of affairs would be highly desirable from the standpoint of the Constitution. Abortion is a hotly contested moral and political issue. Such issues, in our society, are to be resolved by the will of the people, either as expressed through legislation or through the general principles they have already incorporated into the Constitution they have adopted. 5 Roe v. Wade implies that the people [476 U.S. 747, 797] have already resolved the debate by weaving into the Constitution the values and principles that answer the issue. As I have argued, I believe it is clear that the people have never - not in 1787, 1791, 1868, or at any time since - done any such thing. I would return the issue to the people by overruling Roe v. Wade. </s> II </s> As it has evolved in the decisions of this Court, the freedom recognized by the Court in Roe v. Wade and its progeny is essentially a negative one, based not on the notion that abortion is a good in itself, but only on the view that the legitimate goals that may be served by state coercion of private choices regarding abortion are, at least under some circumstances, outweighed by the damage to individual autonomy and privacy that such coercion entails. In other words, the evil of abortion does not justify the evil of forbidding it. Cf. Stanley v. Georgia, 394 U.S. 557 (1969). But precisely because Roe v. Wade is not premised on the notion that abortion is itself desirable (either as a matter of constitutional entitlement or of social policy), the decision does not command the States to fund or encourage abortion, or even to approve [476 U.S. 747, 798] of it. Rather, we have recognized that the States may legitimately adopt a policy of encouraging normal childbirth rather than abortion so long as the measures through which that policy is implemented do not amount to direct compulsion of the woman's choice regarding abortion. Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977). The provisions before the Court today quite obviously represent the State's effort to implement such a policy. </s> The majority's opinion evinces no deference toward the State's legitimate policy. Rather, the majority makes it clear from the outset that it simply disapproves of any attempt by Pennsylvania to legislate in this area. The history of the state legislature's decade-long effort to pass a constitutional abortion statute is recounted as if it were evidence of some sinister conspiracy. See ante, at 751-752. In fact, of course, the legislature's past failure to predict the evolution of the right first recognized in Roe v. Wade is understandable and is in itself no ground for condemnation. Moreover, the legislature's willingness to pursue permissible policies through means that go to the limits allowed by existing precedents is no sign of mens rea. The majority, however, seems to find it necessary to respond by changing the rules to invalidate what before would have seemed permissible. The result is a decision that finds no justification in the Court's previous holdings, departs from sound principles of constitutional and statutory interpretation, and unduly limits the State's power to implement the legitimate (and in some circumstances compelling) policy of encouraging normal childbirth in preference to abortion. </s> A </s> The Court begins by striking down statutory provisions designed to ensure that the woman's choice of an abortion is fully informed - that is, that she is aware not only of the reasons for having an abortion, but also of the risks associated with an abortion and the availability of assistance that might [476 U.S. 747, 799] make the alternative of normal childbirth more attractive than it might otherwise appear. At first blush, the Court's action seems extraordinary: after all, Roe v. Wade purports to be about freedom of choice, and statutory provisions requiring that a woman seeking an abortion be afforded information regarding her decision not only do not limit her ability to choose abortion, but also would appear to enhance her freedom of choice by helping to ensure that her decision whether or not to terminate her pregnancy is an informed one. Indeed, maximization of the patient's freedom of choice - not restriction of his or her liberty - is generally perceived to be the principal value justifying the imposition of disclosure requirements upon physicians: </s> "The root premise is the concept, fundamental in American jurisprudence, that `[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body. . . .' True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible." Canterbury v. Spence, 150 U.S. App. D.C. 263, 271, 464 F.2d 772, 780 (1972). </s> One searches the majority's opinion in vain for a convincing reason why the apparently laudable policy of promoting informed consent becomes unconstitutional when the subject is abortion. The majority purports to find support in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). But Akron is not controlling. The informed-consent [476 U.S. 747, 800] provisions struck down in that case, as characterized by the majority, required the physician to advance tendentious statements concerning the unanswerable question of when human life begins, to offer merely speculative descriptions of the anatomical features of the fetus carried by the woman seeking the abortion, and to recite a "parade of horribles" suggesting that abortion is "a particularly dangerous procedure." Id., at 444-445. I have no quarrel with the general proposition, for which I read Akron to stand, that a campaign of state-promulgated disinformation cannot be justified in the name of "informed consent" or "freedom of choice." But the Pennsylvania statute before us cannot be accused of sharing the flaws of the ordinance at issue in Akron. As the majority concedes, the statute does not, on its face, require that the patient be given any information that is false or unverifiable. Moreover, it is unquestionable that all of the information required would be relevant in many cases to a woman's decision whether or not to obtain an abortion. </s> Why, then, is the statute unconstitutional? The majority's argument, while primarily rhetorical, appears to offer three answers. First, the information that must be provided will in some cases be irrelevant to the woman's decision. This is true. Its pertinence to the question of the statute's constitutionality, however, is beyond me. Legislators are ordinarily entitled to proceed on the basis of rational generalizations about the subject matter of legislation, and the existence of particular cases in which a feature of a statute performs no function (or is even counterproductive) ordinarily does not render the statute unconstitutional or even constitutionally suspect. Only where the statute is subject to heightened scrutiny by virtue of its impingement on some fundamental right or its employment of a suspect classification does the imprecision of the "fit" between the statute's ends and means become potentially damning. Here, there is nothing to trigger such scrutiny, for the statute does not directly [476 U.S. 747, 801] infringe the allegedly fundamental right at issue - the woman's right to choose an abortion. Indeed, I fail to see how providing a woman with accurate information - whether relevant or irrelevant - could ever be deemed to impair any constitutionally protected interest (even if, as the majority hypothesizes, the information may upset her). Thus, the majority's observation that the statute may require the provision of irrelevant information in some cases is itself an irrelevancy. </s> Second, the majority appears to reason that the informed-consent provisions are invalid because the information they require may increase the woman's "anxiety" about the procedure and even "influence" her in her choice. Again, both observations are undoubtedly true; but they by no means cast the constitutionality of the provisions into question. It is in the very nature of informed-consent provisions that they may produce some anxiety in the patient and influence her in her choice. This is in fact their reason for existence, and - provided that the information required is accurate and nonmisleading - it is an entirely salutary reason. If information may reasonably affect the patient's choice, the patient should have that information; and, as one authority has observed, "the greater the likelihood that particular information will influence [the patient's] decision, the more essential the information arguably becomes for securing her informed consent." Appleton, Doctors, Patients and the Constitution, 63 Wash. U. L. Q. 183, 211 (1985). That the result of the provision of information may be that some women will forgo abortions by no means suggests that providing the information is unconstitutional, for the ostensible objective of Roe v. Wade is not maximizing the number of abortions, but maximizing choice. Moreover, our decisions in Maher, Beal, and Harris v. McRae all indicate that the State may encourage women to make their choice in favor of childbirth rather than abortion, and the provision of accurate information regarding abortion [476 U.S. 747, 802] and its alternatives is a reasonable and fair means of achieving that objective. </s> Third, the majority concludes that the informed-consent provisions are invalid because they "intrud[e] upon the discretion of the pregnant woman's physician," ante, at 762, violate "the privacy of the informed-consent dialogue between the woman and her physician," ibid., and "officially structur[e]" that dialogue, ante, at 763. The provisions thus constitute "state medicine" that "infringes upon [the physician's] professional responsibilities." Ibid. This is nonsensical. I can concede that the Constitution extends its protection to certain zones of personal autonomy and privacy, see Griswold v. Connecticut, 381 U.S., at 502 (WHITE, J., concurring in judgment), and I can understand, if not share, the notion that that protection may extend to a woman's decision regarding abortion. But I cannot concede the possibility that the Constitution provides more than minimal protection for the manner in which a physician practices his or her profession or for the "dialogues" in which he or she chooses to participate in the course of treating patients. I had thought it clear that regulation of the practice of medicine, like regulation of other professions and of economic affairs generally, was a matter peculiarly within the competence of legislatures, and that such regulation was subject to review only for rationality. See, e. g., Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955). </s> Were the Court serious about the need for strict scrutiny of regulations that infringe on the "judgment" of medical professionals, "structure" their relations with their patients, and amount to "state medicine," there is no telling how many state and federal statutes (not to mention principles of state tort law) governing the practice of medicine might be condemned. And of course, there would be no reason why a concern for professional freedom could be confined to the medical profession: nothing in the Constitution indicates a preference for the liberty of doctors over that of lawyers, [476 U.S. 747, 803] accountants, bakers, or brickmakers. Accordingly, if the State may not "structure" the dialogue between doctor and patient, it should also follow that the State may not, for example, require attorneys to disclose to their clients information concerning the risks of representing the client in a particular proceeding. Of course, we upheld such disclosure requirements only last Term. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). </s> The rationale for state efforts to regulate the practice of a profession or vocation is simple: the government is entitled not to trust members of a profession to police themselves, and accordingly the legislature may for the most part impose such restrictions on the practice of a profession or business as it may find necessary to the protection of the public. This is precisely the rationale for infringing the professional freedom of doctors by imposing disclosure requirements upon them: "Respect for the patient's right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves." Canterbury v. Spence, 150 U.S. App. D.C., at 275, 464 F.2d, at 784. Unless one is willing to recast entirely the law with respect to the legitimacy of state regulation of professional conduct, the obvious rationality of the policy of promoting informed patient choice on the subject of abortion must defeat any claim that the disclosure requirements imposed by Pennsylvania are invalid because they infringe on "professional freedom" or on the "physician-patient relationship." </s> I do not really believe that the Court's invocation of professional freedom signals a retreat from the principle that the Constitution is largely unconcerned with the substantive aspects of governmental regulation of professional and business relations. Clearly, the majority is uninterested in undermining the edifice of post-New Deal constitutional law by extending its holding to cases that do not concern the issue of abortion. But if one assumes, as I do, that the majority [476 U.S. 747, 804] is unwilling to commit itself to the implications of that part of its rhetoric which smacks of economic due process rights for physicians, it becomes obvious that the talk of "infringement of professional responsibility" is mere window dressing for a holding that must stand or fall on other grounds. And because the informed-consent provisions do not infringe the essential right at issue - the right of the woman to choose to have an abortion - the majority's conclusion that the provisions are unconstitutional is without foundation. </s> B </s> The majority's decision to strike down the reporting requirements of the statute is equally extraordinary. The requirements obviously serve legitimate purposes. The information contained in the reports is highly relevant to the State's efforts to enforce 3210(a) of the statute, which forbids abortion of viable fetuses except when necessary to the mother's health. The information concerning complications plainly serves the legitimate goal of advancing the state of medical knowledge concerning maternal and fetal health. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 80 . Given that the subject of abortion is a matter of considerable public interest and debate (constrained to some extent, of course, by the pre-emptive effect of this Court's ill-conceived constitutional decisions), the collection and dissemination of demographic information concerning abortions is clearly a legitimate goal of public policy. Moreover, there is little reason to believe that the required reports, though fairly detailed, would impose an undue burden on physicians and impede the ability of their patients to obtain abortions, as all of the information required would necessarily be readily available to a physician who had performed an abortion. Accordingly, under this Court's prior decisions in this area, the reporting requirements are constitutional. Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 486 -490 (1983) (opinion of POWELL, [476 U.S. 747, 805] J.); id., at 505 (opinion of O'CONNOR, J.); Planned Parenthood of Central Missouri v. Danforth, supra, at 79-81. </s> Nonetheless, the majority strikes down the reporting requirements because it finds that notwithstanding the explicit statutory command that the reports be made public only in a manner ensuring anonymity, "the amount of information about [the patient] and the circumstances under which she had an abortion are so detailed that identification is likely," ante, at 767, and that "[i]dentification is the obvious purpose of these extreme reporting requirements," ibid. Where these "findings" come from is mysterious, to say the least. The Court of Appeals did not make any such findings on the record before it, and the District Court expressly found that "the requirements of confidentiality in 3214(e) regarding the identity of both patient and physician prevent any invasion of privacy which could present a legally significant burden on the abortion decision." 552 F. Supp. 791, 804 (ED Pa. 1982). Rather than pointing to anything in the record that demonstrates that the District Court's conclusion is erroneous, the majority resorts to the handy, but mistaken, solution of substituting its own view of the facts and strikes down the statute. </s> I can accept the proposition that a statute whose purpose and effect are to allow harassment and intimidation of citizens for their constitutionally protected conduct is unconstitutional, but the majority's action in striking down the Pennsylvania statute on this basis is procedurally and substantively indefensible. First, it reflects a complete disregard for the principle, embodied in Federal Rule of Civil Procedure 52(a), that an appellate court must defer to a trial court's findings of facts unless those findings are clearly erroneous. The Rule is expressly applicable to findings of fact that constitute the grounds for a district court's action granting or refusing a preliminary injunction, and, of course, the Rule limits this Court to the same degree as it does any other [476 U.S. 747, 806] federal appellate court, see United States v. General Dynamics Corp., 415 U.S. 486 (1974). </s> Second, the majority has seriously erred in purporting to make a final determination of fact, conclusive of the constitutionality of the statute, on a motion for preliminary injunction. In so doing, the Court overlooks the principle that although a district court's findings of fact on a motion for a preliminary injunction are entitled to deference on appeal from the grant or denial of preliminary relief, "the findings of fact . . . made by a court granting a preliminary injunction are not binding at trial on the merits" because "a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (emphasis added). What Camenisch stated to be true customarily is also true in this case: the record on which the motion for preliminary injunction was decided in the trial court consisted solely of affidavits and a stipulation of undisputed facts, none of which provides a sufficient basis for a conclusive finding on the complex question of the motive and effect of the reporting requirements and the adequacy of the statute's protection of the anonymity of doctors and patients. Issuing what amounts to a final declaratory judgment on the constitutionality of the statute under these circumstances is highly inappropriate. </s> Finally, in addition to being procedurally flawed, the majority's holding is substantively suspect. The information contained in the reports identifies the patient on the basis of age, race, marital status, and "political subdivision" of residence; the remainder of the information included in the reports concerns the medical aspects of the abortion. It is implausible that a particular patient could be identified on the basis of the combination of the general identifying information and the specific medical information in these reports by anyone who did not already know (at a minimum) that the woman had been pregnant and obtained an abortion. [476 U.S. 747, 807] Accordingly, the provisions pose little or no threat to the woman's privacy. </s> In sum, there is no basis here even for a preliminary injunction against the reporting provisions of the statute, much less for a final determination that the provisions are unconstitutional. </s> C </s> The majority resorts to linguistic nit-picking in striking down the provision requiring physicians aborting viable fetuses to use the method of abortion most likely to result in fetal survival unless that method would pose a "significantly greater medical risk to the life or health of the pregnant woman" than would other available methods. The majority concludes that the statute's use of the word "significantly" indicates that the statute represents an unlawful "trade-off" between the woman's health and the chance of fetal survival. Not only is this conclusion based on a wholly unreasonable interpretation of the statute, but the statute would also be constitutional even if it meant what the majority says it means. </s> The majority adopts the Court of Appeals' view that the statute's use of the term "significantly" renders it "`not susceptible to a construction that does not require the mother to bear an increased medical risk in order to save her viable fetus.'" Ante, at 769 (quoting 737 F.2d 283, 300 (CA3 1984)). The term "significant" in this context, however, is most naturally read as synonymous with the terms "meaningful," "cognizable," "appreciable," or "nonnegligible." That is, the statute requires only that the risk be a real and identifiable one. Surely, if the State's interest in preserving the life of a viable fetus is, as Roe purported to recognize, a compelling one, the State is at the very least entitled to demand that that interest not be subordinated to a purported maternal health risk that is in fact wholly insubstantial. The statute, on its face, demands no more than this of a doctor performing an abortion of a viable fetus. [476 U.S. 747, 808] </s> Even if the Pennsylvania statute is properly interpreted as requiring a pregnant woman seeking abortion of a viable fetus to endure a method of abortion chosen to protect the health of the fetus despite the existence of an alternative that in some substantial degree is more protective of her own health, I am not convinced that the statute is unconstitutional. The Court seems to read its earlier opinion in Colautti v. Franklin, 439 U.S. 379 (1979), as incorporating a holding that tradeoffs between the health of the pregnant woman and the survival of her viable fetus are constitutionally impermissible under Roe v. Wade. Of course, Colautti held no such thing: the Court there stated only that it did not address the "serious ethical and constitutional difficulties" that such a tradeoff would present. 439 U.S., at 400 . 6 Nothing in Colautti or any of the Court's previous abortion decisions compels the per se "tradeoff" rule the Court adopts today. </s> The Court's ruling in this respect is not even consistent with its decision in Roe v. Wade. In Roe, the Court conceded that the State's interest in preserving the life of a viable fetus is a compelling one, and the Court has never disavowed that concession. The Court now holds that this compelling interest cannot justify any regulation that imposes a quantifiable medical risk upon the pregnant woman who seeks to abort a viable fetus: if attempting to save the fetus imposes any additional risk of injury to the woman, she must be permitted to kill it. This holding hardly accords with the usual understanding of the term "compelling interest," which we have used to describe those governmental interests that are so weighty as to justify substantial and ordinarily impermissible impositions on the individual - impositions that, I had thought, could include the infliction of [476 U.S. 747, 809] some degree of risk of physical harm. The most obvious illustration of this principle may be found in the opinion of the elder Justice Harlan in Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905): "The liberty secured by the Fourteenth Amendment . . . consists, in part, in the right of a person `to live and work where he will,' Allgeyer v. Louisiana, 165 U.S. 578 ; and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, . . . to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense." The actual holding of Jacobson provides another illustration, more pertinent to this particular case: the Court there sustained a regulation requiring all adult citizens of Cambridge, Massachusetts, to be vaccinated against smallpox, notwithstanding that exposure to vaccination carried with it a statistical possibility of serious illness and even death. If, as I believe these examples demonstrate, a compelling state interest may justify the imposition of some physical danger upon an individual, and if, as the Court has held, the State has a compelling interest in the preservation of the life of a viable fetus, I find the majority's unwillingness to tolerate the imposition of any nonnegligible risk of injury to a pregnant woman in order to protect the life of her viable fetus in the course of an abortion baffling. </s> The Court's ruling today that any tradeoff between the woman's health and fetal survival is impermissible is not only inconsistent with Roe's recognition of a compelling state interest in viable fetal life; it directly contradicts one of the essential holdings of Roe - that is, that the State may forbid all postviability abortions except when necessary to protect the life or health of the pregnant woman. As is evident, this holding itself involves a tradeoff between maternal health and protection of the fetus, for it plainly permits the State to forbid a postviability abortion even when such an abortion may be statistically safer than carrying the pregnancy to [476 U.S. 747, 810] term, provided that the abortion is not medically necessary. 7 The tradeoff contained in the Pennsylvania statute, even as interpreted by the majority, is no different in kind: the State has simply required that when an abortion of some kind is medically necessary, it shall be conducted so as to spare the fetus (to the greatest degree possible) unless a method less protective of the fetus is itself to some degree medically necessary for the woman. That this choice may involve the imposition of some risk on the woman undergoing the abortion should be no more troublesome than that a prohibition on nonnecessary postviability abortions may involve the imposition of some risk on women who are thereby forced to continue their pregnancies to term; yet for some reason, the Court concludes that whereas the tradeoffs it devises are compelled by the Constitution, the essentially indistinguishable tradeoff the State has attempted is foreclosed. This cannot be the law. </s> The framework of rights and interests devised by the Court in Roe v. Wade indicates that just as a State may prohibit a postviability abortion unless it is necessary to protect the life or health of the woman, the State may require that postviability abortions be conducted using the method most protective of the fetus unless a less protective method is necessary to protect the life or health of the woman. Under this standard, the Pennsylvania statute - which does not require the woman to accept any significant health risks to protect the fetus - is plainly constitutional. </s> D </s> The Court strikes down the statute's second-physician requirement because, in its view, the existence of a medical emergency requiring an immediate abortion to save the life of the pregnant woman would not be a defense to a prosecution [476 U.S. 747, 811] under the statute. The Court does not question the proposition, established in the Ashcroft case, that a second-physician requirement accompanied by an exception for emergencies is a permissible means of vindicating the compelling state interest in protecting the lives of viable fetuses. Accordingly, the majority's ruling on this issue does not on its face involve a substantial departure from the Court's previous decisions. </s> What is disturbing about the Court's opinion on this point is not the general principle on which it rests, but the manner in which that principle is applied. The Court brushes aside the fact that the section of the statute in which the second-physician requirement is imposed states that "[i]t shall be a complete defense to any charge brought against a physician for violating the requirements of this section that he had concluded, in good faith, in his best medical judgment, . . . that the abortion was necessary to preserve maternal life or health" (emphasis added). 18 Pa. Cons. Stat. 3210(a) (1982). This language is obviously susceptible of the construction the State advances: namely, that it is a defense to a charge of violating the second-physician requirement that the physician performing the abortion believed that performing an abortion in the absence of a second physician was necessary to the life or health of the mother. </s> The Court's rejection of this construction is based on its conclusion that the statutory language "does not relate to the second-physician requirement" and that "its words are not words of emergency." Ante, at 771. This reasoning eludes me. The defense of medical necessity "relates" to any charge that a doctor has violated one of the requirements of the section in which it appears, and the second-physician requirement is imposed by that section. The defense thus quite evidently "relates" to the second-physician requirement. True, the "words" of the defense are not "words of emergency," but words of necessity. Why this should make a difference is unclear: a defense of medical necessity is fully as protective of the interests of the pregnant woman as a defense of [476 U.S. 747, 812] "emergency." The Court falls back, ibid., on the notion that the legislature "knows how to provide a medical-emergency exception when it chooses to do so." No doubt. But the legislature obviously also "knows how" to provide a medical-necessity exception, and it has done so. Why this exception is insufficient is unexplained and inexplicable. </s> The Court's rejection of a perfectly plausible reading of the statute flies in the face of the principle - which until today I had thought applicable to abortion statutes as well as to other legislative enactments - that "[w]here fairly possible, courts should construe a statute to avoid a danger of unconstitutionality." Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S., at 493 . The Court's reading is obviously based on an entirely different principle: that in cases involving abortion, a permissible reading of a statute is to be avoided at all costs. Not sharing this viewpoint, I cannot accept the majority's conclusion that the statute does not provide for the equivalent of a defense of emergency. 8 </s> E </s> Finally, the majority refuses to vacate the preliminary injunction entered against the enforcement of the parental notice and consent provisions of the statute. See ante, at 758, n. 9. The reason offered is that the propriety of the injunction depends upon the adequacy of the rules, recently promulgated by the Pennsylvania Supreme Court, setting forth [476 U.S. 747, 813] procedures by which a minor desiring an abortion may speedily and confidentially obtain either judicial approval of her decision to obtain an abortion or a judicial determination that she herself is capable of an informed consent to the procedure. The Court concludes that review of the rules is best carried out in the first instance in the District Court. </s> The Court's decision in Ashcroft, however, compels the conclusion that the Third Circuit erred in directing that the operation of the parental notice and consent provisions be enjoined pending promulgation of the required rules; accordingly, the injunction should be vacated irrespective of the adequacy of those rules. As the Court of Appeals apparently recognized, the Pennsylvania statute, on its face, is substantively identical to that upheld by the Court in Ashcroft; thus, the sole basis for the injunction ordered by the Court of Appeals was the absence of procedural rules implementing the statute. What the Court of Appeals failed to recognize was that this Court denied relief to the plaintiffs challenging the statute in Ashcroft despite the same purported defect: in that case, as in this, the State Supreme Court had not yet promulgated rules establishing the expedited procedures called for by the statute. Nonetheless, as JUSTICE POWELL's opinion explained, the plaintiffs were not entitled to any relief against enforcement of the statutory scheme, as "[t]here is no reason to believe that [the State] will not expedite any appeal consistent with the mandate in our prior opinions." 462 U.S., at 491 , n. 16. Similarly, there was no reason here for the Court of Appeals to believe that Pennsylvania would not provide for the adequate, expedited procedures contemplated by the statute; thus, its entry of an injunction against enforcement of the statute was erroneous. </s> III </s> The decision today appears symptomatic of the Court's own insecurity over its handiwork in Roe v. Wade and the cases following that decision. Aware that in Roe it essentially [476 U.S. 747, 814] created something out of nothing and that there are many in this country who hold that decision to be basically illegitimate, the Court responds defensively. Perceiving, in a statute implementing the State's legitimate policy of preferring childbirth to abortion, a threat to or criticism of the decision in Roe v. Wade, the majority indiscriminately strikes down statutory provisions that in no way contravene the right recognized in Roe. I do not share the warped point of view of the majority, nor can I follow the tortuous path the majority treads in proceeding to strike down the statute before us. I dissent. </s> [Footnote 1 I shall, for the most part, leave to one side the Court's somewhat extraordinary procedural rulings. I do not strongly disagree with the Court's decision to read a finality requirement into 28 U.S.C. 1254(2), although I would have thought it incumbent on the Court to explain why the Court of Appeals' judgment as to the statutory provisions before us today, which represents a definitive ruling on their constitutionality, is not sufficiently "final" to satisfy the jurisdictional statute as interpreted by the Court. </s> As for the Court's ruling that it is permissible for an appellate court to resolve an appeal from the grant or the denial of a preliminary injunction by issuing a final judgment as to the constitutionality of a statute, I do not disagree that this may, in rare cases, be an appropriate course of action where the constitutional issues are clear. I would stress that this is by no means the preferred course of action in the run of cases, and I assume that the majority's opinion is not to the contrary. I do disagree quite strongly with the majority's application of this principle here, as I believe, contrary to the majority, that it is quite evident that the statute before us is constitutional on its face. I also believe, as will become evident, that at least one of the Court's rulings is exceedingly inappropriate in view of the preliminary posture of this case even if the majority's legal premises are accepted. </s> [Footnote 2 That the abortion decision, like the decisions protected in Griswold, Eisenstadt, and Carey, concerns childbearing (or, more generally, family life) in no sense necessitates a holding that the liberty to choose abortion is "fundamental." That the decision involves the destruction of the fetus renders it different in kind from the decision not to conceive in the first place. This difference does not go merely to the weight of the state interest in regulating abortion; it affects as well the characterization of the liberty interest itself. For if the liberty to make certain decisions with respect to contraception without governmental constraint is "fundamental," it is not only because those decisions are "serious" and "important" to the individual, see ante, at 776 (STEVENS, J., concurring), but also because some value of privacy or individual autonomy that is somehow implicit in the scheme of ordered liberties established by the Constitution supports a judgment that such decisions are none of government's business. The [476 U.S. 747, 793] same cannot be said where, as here, the individual is not "isolated in her privacy." </s> My point can be illustrated by drawing on a related area in which fundamental liberty interests have been found: childrearing. The Court's decisions in Moore v. East Cleveland, Pierce v. Society of Sisters, and Meyer v. Nebraska can be read for the proposition that parents have a fundamental liberty to make decisions with respect to the upbringing of their children. But no one would suggest that this fundamental liberty extends to assaults committed upon children by their parents. It is not the case that parents have a fundamental liberty to engage in such activities and that the State may intrude to prevent them only because it has a compelling interest in the well-being of children; rather, such activities, by their very nature, should be viewed as outside the scope of the fundamental liberty interest. </s> [Footnote 3 JUSTICE STEVENS asserts, ante, at 778, that I am "quite wrong in suggesting that the Court is imposing value preferences on anyone else" when it denominates the liberty to choose abortion as "fundamental" (in contradistinction to such other, nonfundamental liberties as the liberty to use dangerous drugs or to operate a business without governmental interference) and thereby disempowers state electoral majorities from legislating in this area. I can only respond that I cannot conceive of a definition of the phrase "imposing value preferences" that does not encompass the Court's action. </s> JUSTICE STEVENS also suggests that it is the legislative majority that has engaged in "the unrestrained imposition of its own, extraconstitutional value preferences" when a state legislature restricts the availability of abortion. Ibid. But a legislature, unlike a court, has the inherent power to do so unless its choices are constitutionally forbidden, which, in my view, is not the case here. </s> [Footnote 4 Contrary to JUSTICE STEVENS' suggestion, ibid., this is no more a "theological" position than is the Court's own judgment that viability is the point at which the state interest becomes compelling. (Interestingly, JUSTICE STEVENS omits any real effort to defend this judgment.) The point is that the specific interest the Court has recognized as compelling after the point of viability - that is, the interest in protecting "potential human life" - is present as well before viability, and the point of viability seems to bear no discernible relationship to the strength of that interest. Thus, there is no basis for concluding that the essential character of the state interest becomes transformed at the point of viability. </s> Further, it is self-evident that neither the legislative decision to assert a state interest in fetal life before viability nor the judicial decision to recognize that interest as compelling constitutes an impermissible "religious" decision merely because it coincides with the belief of one or more religions. Certainly the fact that the prohibition of murder coincides with one of the Ten Commandments does not render a State's interest in its murder statutes less than compelling, nor are legislative and judicial decisions concerning the use of the death penalty tainted by their correspondence to varying religious views on that subject. The simple, and perhaps unfortunate, fact of the matter is that in determining whether to assert an interest in fetal life, a State cannot avoid taking a position that will correspond to some religious beliefs and contradict others. The same is true to some extent with respect to the choice this Court faces in characterizing an asserted state [476 U.S. 747, 796] interest in fetal life, for denying that such an interest is a "compelling" one necessarily entails a negative resolution of the "religious" issue of the humanity of the fetus, whereas accepting the State's interest as compelling reflects at least tolerance for a state decision that is congruent with the equally "religious" position that human life begins at conception. Faced with such a decision, the most appropriate course of action for the Court is to defer to a legislative resolution of the issue: in other words, if a state legislature asserts an interest in protecting fetal life, I can see no satisfactory basis for denying that it is compelling. </s> [Footnote 5 JUSTICE STEVENS, see ante, at 776-777, n. 4, finds a contradiction between my recognition that constitutional analysis requires more than mere textual analysis or a search for the specific intent of the Framers, supra, at 789, and my assertion that it is ultimately the will of the people that is the source of whatever values are incorporated in the Constitution. The fallacy of JUSTICE STEVENS' argument is glaring. The rejection of what has been characterized as "clause-bound" interpretivism, J. Ely, Democracy and Distrust 12 (1980), does not necessarily carry with it a rejection of the notion that constitutional adjudication is a search for values and principles that are implicit (and explicit) in the structure of rights and institutions that the people have themselves created. The implications of those values for the resolution of particular issues will in many if not most cases not have been explicitly considered when the values themselves were [476 U.S. 747, 797] chosen - indeed, there will be some cases in which those who framed the provisions incorporating certain principles into the Constitution will be found to have been incorrect in their assessment of the consequences of their decision. See, e. g., Brown v. Board of Education, 347 U.S. 483 (1954). Nonetheless, the hallmark of a correct decision of constitutional law is that it rests on principles selected by the people through their Constitution, and not merely on the personal philosophies, be they libertarian or authoritarian, of the judges of the majority. While constitutional adjudication involves judgments of value, it remains the case that some values are indeed "extraconstitutional," in that they have no roots in the Constitution that the people have chosen. The Court's decision in Lochner v. New York, 198 U.S. 45 (1905), was wrong because it rested on the Court's belief that the liberty to engage in a trade or occupation without governmental regulation was somehow fundamental - an assessment of value that was unsupported by the Constitution. I believe that Roe v. Wade - and today's decision as well - rests on similarly extraconstitutional assessments of the value of the liberty to choose an abortion. </s> [Footnote 6 Interestingly, the Court's statement seems to have assumed that the Court would have had the same authority over "ethical questions" as "constitutional issues" had it chosen to reach them - an illuminating revelation of the state of the Court's jurisprudence in this area. </s> [Footnote 7 Surely it cannot be argued that any abortion that is safer than delivery is medically necessary, since under such a definition an abortion would be medically necessary in all pregnancies. </s> [Footnote 8 Even if I were to accept the majority's conclusion that the medical-necessity defense of 3210(a) is not specifically applicable to charges brought under 3210(c), I would not strike down the statute. Under Pennsylvania criminal law, justification is a defense, see 18 Pa. Cons. Stat. 502 (1982), and, under the general rule of justification, conduct is deemed justified if "the actor believes [it] to be necessary to avoid a harm or evil to . . . another," and "the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged." 503(a)(1). I have little doubt that a Pennsylvania court applying this statute would find noncompliance with the second-physician rule justified where necessary to save the life of the pregnant woman. </s> JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST joins, dissenting. </s> This Court's abortion decisions have already worked a major distortion in the Court's constitutional jurisprudence. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 452 (1983) (O'CONNOR, J., dissenting). Today's decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but - except when it comes to abortion - the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it. See Heckler v. Chaney, 470 U.S. 821, 838 (1985); id., at 839-840, n. 2 (BRENNAN, J., concurring) (differences over the validity of the death penalty under the Eighth Amendment should not influence the Court's consideration of a question of statutory administrative law). That the Court's unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it [476 U.S. 747, 815] has claimed for itself in the series of cases that began with Roe v. Wade, 410 U.S. 113 (1973). </s> The Court today holds that "[t]he Court of Appeals correctly invalidated the specified provisions of Pennsylvania's 1982 Abortion Control Act." Ante, at 772. In so doing, the Court prematurely decides serious constitutional questions on an inadequate record, in contravention of settled principles of constitutional adjudication and procedural fairness. The constitutionality of the challenged provisions was not properly before the Court of Appeals, and is not properly before this Court. There has been no trial on the merits, and appellants have had no opportunity to develop facts that might have a bearing on the constitutionality of the statute. The only question properly before the Court is whether or not a preliminary injunction should have been issued to restrain enforcement of the challenged provisions pending trial on the merits. This Court's decisions in Akron v. Akron Center for Reproductive Health, supra, Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476 (1983), and Simopoulos v. Virginia, 462 U.S. 506 (1983), do not establish a likelihood that appellees would succeed on the merits of their constitutional claims sufficient to warrant overturning the District Court's denial of a preliminary injunction. Under the approach to abortion regulation outlined in my dissenting opinion in Akron, to which I adhere, it is even clearer that no preliminary injunction should have issued. I therefore dissent. </s> I </s> The only issue before the District Court in this case was whether to grant appellees' motion for a preliminary injunction against enforcement of Pennsylvania's Abortion Control Act. The limited record before the District Court consisted of affidavits submitted by appellees, the parties' memoranda of law, the Act itself, including the findings of the Pennsylvania Legislature, and a stipulation of uncontested facts. As [476 U.S. 747, 816] the District Judge noted, this stipulation "was entered into solely for the purpose of the motion for preliminary injunction." 552 F. Supp. 791, 794, n. 1 (ED Pa. 1982). Indeed, the parties expressly provided that the stipulation should be "without prejudice to any party's right to controvert any facts or to prove any additional facts at any later proceeding in this action." App. 9a-10a. In light of the stipulation of uncontested facts, no testimony or evidence was submitted at the hearing on the motion for a preliminary injunction. </s> In these circumstances, the District Judge's consideration of the motion before him was governed by the black letter law recapitulated in University of Texas v. Camenisch, 451 U.S. 390, 395 (1981): </s> "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary injunction hearing, and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits. In light of these considerations, it is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits. </s> "Should an expedited decision on the merits be appropriate, Rule 65(a)(2) of the Federal Rules of Civil Procedure provides a means of securing one. That Rule permits a court to `order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.' Before such an order may issue, however, the courts have commonly required that `the parties should normally receive clear and unambiguous notice [of [476 U.S. 747, 817] the court's intent to consolidate the trial and the hearing] either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases'" (citations omitted). </s> The District Judge scrupulously adhered to these settled principles. He granted the preliminary injunction as to one provision of the Act, and denied preliminary relief as to all the other challenged provisions. Having seen no occasion to issue a Rule 65 order, he properly refrained from rendering final judgment on the merits by declaratory judgment or otherwise. That the District Judge understood the preliminary nature of the proceedings, and ruled accordingly, is incontrovertible: </s> "I have applied the traditional criteria applicable to a motion for preliminary injunction: likelihood of success on the merits, irreparable harm if the relief is not granted, possibility of harm to the non-moving party, and where relevant, harm to the public. Given the importance of the right involved in this litigation, I have assumed that if the plaintiffs were able to show likelihood of success on the merits, then the irreparable harm requirement would be met. I conclude that in only one instance, the 24-hour waiting period, did the plaintiffs carry their burden of demonstrating likelihood of success on the merits. </s> . . . . . </s> "My adjudication is limited to the plaintiffs' request for a preliminary injunction. It is circumscribed by the record produced by the parties and the arguments advanced in the briefs on this motion. After applying the criteria for a preliminary injunction, I conclude that the only portion of the Act which the plaintiffs have demonstrated should be preliminarily enjoined is the 24-hour waiting period. In all other respects, the plaintiffs have failed to show a right to a preliminary injunction pending [476 U.S. 747, 818] the outcome of the trial on the merits." 552 F. Supp., at 811 (emphasis in original). </s> The District Judge correctly discerned that "[t]he traditional standard for granting a preliminary injunction requires a plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits." Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975). Unsurprisingly, the likelihood of success on the merits emerged, in the District Judge's view, as the most important factor in determining whether an injunction should issue in this case. In sum, when the District Judge denied appellees' motion for a preliminary injunction, he faithfully applied uncontroversial criteria for ruling on such motions and rendered a decision that "was not in any sense intended as a final decision as to the constitutionality of the challenged statute." Brown v. Chote, 411 U.S. 452, 456 (1973). </s> When the appeal was taken to the Court of Appeals for the Third Circuit, that court's review should have been limited to determining whether the District Court had abused its discretion in denying preliminary relief. Doran, supra, at 931-932; Brown, supra, at 457. If the Court of Appeals concluded that the District Court had committed legal errors that infected its assessment of the likelihood that appellees would succeed on the merits, the Court of Appeals should then have addressed the remaining factors that make up the preliminary injunction inquiry. If it concluded that denial of the preliminary injunction was an abuse of discretion, it should have entered judgment providing for entry of a preliminary injunction. What it should not have done, and what it did do, was to issue a final, binding declaration on the merits of appellees' constitutional claims. </s> The Court concedes that a court of appeals should ordinarily review the denial of a preliminary injunction under an abuse of discretion standard, and it concedes that a court of appeals should ordinarily confine itself to assessing the "probability that the plaintiffs would succeed on the merits." [476 U.S. 747, 819] Ante, at 755. But the Court purports to find an exception to this rule in the decisions in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and Smith v. Vulcan Iron Works, 165 U.S. 518 (1897). It asserts that these cases indicate that "if a district court's ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction." Ante, at 757. The Court then announces that the requirement that appellate review proceed under the deferential abuse of discretion standard is "a rule of orderly judicial administration, not a limit on judicial power." Ibid. Postulating that the Court of Appeals had a "full record before it on the issues now before us," ibid., the Court concludes that this "full record," and the fact that this Court's decisions in Akron, Ashcroft, and Simopoulos were handed down during the pendency of the appeal, justified the Court of Appeals "in proceeding to plenary review of those issues." Ante, at 757. </s> This analysis mischaracterizes the proceedings in the District Court and is unsupported by precedent or logic. No one doubts that the legal premises on which the District Judge proceeded were reviewable. But the fact is that the District Judge did not make the final, definitive "ruling" on the merits the Court imputes to him. The only "ruling" the Court of Appeals had before it with respect to the merits was a determination of "likelihood of success" based on facts which were stipulated only for purposes of the preliminary injunction motion, and on arguments framed with a view toward only those facts. Nor was there a "full record" upon which the Court of Appeals could decide the merits. The Court falls into precisely the error pointed out in Camenisch, 451 U.S., at 394 , where this Court unanimously rejected the proposition that determinations on the propriety of preliminary relief are "tantamount to decisions on the underlying merits," because that view "improperly equates `likelihood of [476 U.S. 747, 820] success' with `success,' and what is more important, . . . ignores the significant procedural differences between preliminary and permanent injunctions." </s> The Court of Appeals was convinced that the District Judge, in reliance on the decisions of the Courts of Appeals that were later reviewed in Akron and Ashcroft, had taken a view of the applicable law which this Court's decisions in those cases demonstrated to be erroneous. Citing Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1242 (CA3 1983), cert. dism'd under this Court's Rule 53, 464 U.S. 1033 (1984), the Court of Appeals stated that "[t]he customary discretion accorded to a district court's ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law." 737 F.2d 283, 290 (1984). Apple Computer, in turn, relied on Judge Friendly's opinion for the Second Circuit in Donovan v. Bierwirth, 680 F.2d 263, 269, cert. denied, 459 U.S. 1069 (1982): "Despite oft repeated statements that the issuance of a preliminary injunction rests in the discretion of the trial judge whose decisions will be reversed only for `abuse', a court of appeals must reverse if the district court has proceeded on the basis of an erroneous view of the applicable law, or of the standards governing the granting or denial of interlocutory relief" (citations omitted). </s> Donovan's reasoning, however, goes only to the standard of appellate review, not to the extent of the issues to be reviewed. Whether or not Donovan's approach is sound, it is clear that a district court does not have discretion to rule on the basis of a misapprehension of controlling law. But even assuming, arguendo, that, where a court of appeals detects such an error, it may then engage in de novo review of the determination whether a preliminary injunction should issue, see 680 F.2d, at 270, such discretion does not ordinarily extend to deciding the merits of the controversy with finality. Judge Friendly did no such thing in Donovan, id., [476 U.S. 747, 821] at 276, nor did the Third Circuit in Apple Computer, see 714 F.2d, at 1242. </s> What is at issue here is a matter of legal principle. As JUSTICE BLACKMUN has observed on a previous occasion: "The distinction between the preliminary and final injunction stages of a proceeding is more than mere formalism. The time pressures involved in a request for a preliminary injunction require courts to make determinations without the aid of full briefing or factual development, and make all such determinations necessarily provisional." Firefighters v. Stotts, 467 U.S. 561, 603 -604, n. 7 (1984) (dissenting opinion). The holding of the Court today thus comes at the expense of the basic principle underlying the framework set out in Camenisch for ruling on a motion for a preliminary injunction: that fairness to the parties and reliable adjudication of disputes require final, binding rulings on the merits of a controversy to be made only after each side has had an opportunity to establish its version of the disputed facts or to establish that the facts are not in dispute. </s> Equally neglected by the Court is a second principle, closely related to the first: </s> "Ordinarily an appellate court does not give consideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence." Hormel v. Helvering, 312 U.S. 552, 556 (1941). </s> See also Singleton v. Wulff, 428 U.S. 106, 120 -121 (1976); cf. Fountain v. Filson, 336 U.S. 681, 683 (1949) (per curiam) (reversing a summary judgment order "made on appeal on a [476 U.S. 747, 822] new issue as to which the opposite party had no opportunity to present a defense before the trial court"). The cases on which the Court relies simply do not support the short shrift the Court gives these basic principles. </s> In Youngstown Sheet & Tube Co., President Truman, invoking an immediate threat to the national defense precipitated by a threatened nationwide strike in the steel industry, ordered the Secretary of Commerce to seize the steel mills and keep them running. 343 U.S., at 583 . The steel companies sought a declaratory judgment, a preliminary injunction, and a permanent injunction against the seizure, on the grounds that the President had no authority to order it. Ibid. Although the District Court had before it only "motions for temporary injunctions" when it ruled, 103 F. Supp. 569, 572 (DC 1952), "in the light of the facts presented, the District Court saw no reason for delaying decision of the constitutional validity of the orders." Youngstown Sheet & Tube Co., supra, at 585. Indeed, the District Court had "com[e] to a fixed conclusion . . . that defendant's acts are illegal. . . . Nothing that could be submitted at such trial on the facts would alter the legal conclusion I have reached." 103 F. Supp., at 576. </s> Thus, the District Court's preliminary injunction in Youngstown Sheet & Tube Co. rested on what amounted to a declaratory judgment that the orders were constitutionally invalid. That in itself was a pronounced departure from normal practice, although one that this Court found proper in the highly unusual circumstances presented in Youngstown Sheet & Tube Co., where time was manifestly of the essence, * and there was no contention that the Government had been deprived of an opportunity to present facts that could have [476 U.S. 747, 823] altered the resolution of the constitutional question. To the contrary, when "[p]laintiffs moved for a preliminary injunction before answer or hearing, [d]efendant opposed the motion, filing uncontroverted affidavits of Government officials describing the facts underlying the President's order." 343 U.S., at 678 (Vinson, C. J., dissenting). </s> Neither of the foregoing justifications for the District Court's unusual decision to reach the merits in Youngstown Sheet & Tube is present here. No emergency remotely comparable to the one in Youngstown Sheet & Tube confronted the Court of Appeals, which granted appellees' motion to enjoin enforcement of the entire Act pending appeal, and withheld judgment until after this Court had ruled in Akron and its companion cases. 737 F.2d, at 290. Appellants conceded in the Court of Appeals that several provisions of the Abortion Act were unconstitutional in the wake of those decisions, but appellants did not concede that the provisions on which the Court of Appeals dispositively ruled were unconstitutional. Nor is there any suggestion that appellants conceded in the Court of Appeals that there were no factual issues that could have a bearing on the constitutionality of these provisions. Consequently, even if a preliminary injunction should have issued, the proper course would have been to remand for final determination of the merits. </s> Indeed, since Youngstown Sheet & Tube Co. was decided this Court has expressly reaffirmed that "a state statute should not be declared unconstitutional by a district court if a preliminary injunction is granted a plaintiff to protect his interests during the ensuing litigation." Withrow v. Larkin, 421 U.S. 35, 43 (1975). See Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310 (1940). If it is improper for a district court to enter such a declaratory judgment when it grants a preliminary injunction, then a fortiori it is improper for a court of appeals to do so when the district court has only appraised the likelihood of success on the merits. What happened here is even more extreme: the Court of Appeals, reviewing [476 U.S. 747, 824] the denial of a preliminary injunction, held in the first instance that nothing that could be submitted at a trial on the merits would alter its conclusion that "most of the provisions attacked by appellants are unconstitutional as a matter of law." 737 F.2d, at 287. Nothing in Youngstown Sheet & Tube Co. remotely suggests that it was proper for the Court of Appeals to take this extraordinary step. "Camenisch makes clear that a determination of a party's entitlement to a preliminary injunction is a separate issue from the determination of the merits of the party's underlying legal claim, and that a reviewing court should not confuse the two." Stotts, 467 U.S., at 603 (BLACKMUN, J., dissenting). </s> The Court strays even further afield when it invokes Smith v. Vulcan Iron Works in defense of the Court of Appeals' decision to reach and resolve the merits despite the fact that the District Court had not done so and without giving the parties "the benefit . . . of a full opportunity to present their cases." Camenisch, 451 U.S., at 396 . The trial court in Smith, "upon a bill in equity for the infringement of a patent for an invention . . . entered an interlocutory decree, adjudging that the patent was valid and had been infringed, granting an injunction, and referring the case to a master to take an account of profits and damages." 165 U.S., at 518 (emphasis added). The defendant challenged the trial court's alleged "error in holding that the patent was valid, and that it had been infringed." Ibid. The Circuit Court of Appeals reversed the decree, rejecting the plaintiff's contention that it could rule only on "whether an injunction should be awarded." Ibid. This Court held that under the plain language of the statute conferring jurisdiction on the Circuit Court of Appeals, an appeal was authorized "from the whole of such interlocutory order or decree, and not from that part of it only which grants or continues an injunction," and consequently the statute conferred "authority to consider and decide the case upon its merits." Id., at 525. The trial court, of course, had already done precisely that, deciding the issue [476 U.S. 747, 825] of liability after the parties had joined issue on the merits, while referring the matter of damages to a master. Reliance on Smith in this case is therefore misplaced, for, to repeat, the District Court did not decide - and could not properly have decided - the merits of appellees' constitutional claims when it refused to grant a preliminary injunction. </s> The Court also seeks comfort in an analogy to the rule that a federal court need not abstain, pending state-court review, from reviewing a constitutional challenge to the validity of a state statute that is not fairly subject to an interpretation that will avoid the constitutional question. Zwickler v. Koota, 389 U.S. 241, 251 , and n. 14 (1967). When a federal district court declines to abstain, however, it does not in so doing decide the merits of the constitutional question even if the parties have not had a full opportunity to air them. The court simply proceeds to decide the case in accordance with the normal procedural requirements that safeguard the parties' rights to be heard. A refusal to abstain therefore infringes neither the principle that final judgment should follow a full opportunity to be heard on the factual and legal merits of the case, nor the principle that "parties shall come to issue in the trial forum vested with authority to determine questions of fact." Hormel, 312 U.S., at 556 . The same cannot be said of what the Court of Appeals did here. </s> Whatever the exceptions which would justify a district court in finally resolving an issue on the merits at the preliminary injunction stage, no such exception was applicable here. Nor is this a case in which the court of appeals was justified in resolving an issue not passed on in the district court because proper resolution was beyond any doubt or grave injustice might result from failure to do so. See Singleton v. Wulff, 428 U.S., at 121 . The Court of Appeals not only decided to stand in the shoes of the District Court by ruling on an issue not passed upon below - it ruled on an issue on which, absent extraordinary circumstances, the District Court could not have ruled without "`clear and unambiguous [476 U.S. 747, 826] notice'" that would "`afford the parties a full opportunity to present their respective cases.'" Camenisch, supra, at 395. The Court attempts to veil the impropriety of its decision to affirm on the merits despite the procedural posture of this case by implying that the challenged provisions are patently unconstitutional. But this claim too is unsupported in this Court's decisions concerning state regulation of abortion. </s> The discretionary exception the Court fashions today will also prove vexatious to administer. Parties now face the risk that a final ruling on the merits will be entered against them by a court of appeals when an appeal is taken from the grant or denial of a motion for a preliminary injunction, although the district court made only an initial assessment of the likelihood that the moving party would succeed on the merits. It is predictable that parties will respond by attempting to turn preliminary injunction proceedings into contests over summary judgment or full-scale trials on the merits. That tendency will make the preliminary injunction less useful in serving its intended function of preserving the status quo pending final judgment on the merits, while making litigation more expensive, less reliable, and less fair. If this case did not involve state regulation of abortion, it may be doubted that the Court would entertain, let alone adopt, such a departure from its precedents. </s> II </s> In this Court, appellants argue that the judgment of the Court of Appeals should be vacated and the District Court's denial of a preliminary injunction sustained. Appellants have stated that they "intend to present to the District Court a complete factual record which . . . could affect the disposition of this case," and have indicated some of the specific factual propositions they would seek to establish. Brief for Appellants 44-48. At oral argument, counsel for appellants reiterated that, with the exception of the second-physician requirement, "there are additional justifications by way of [476 U.S. 747, 827] facts that we can offer" as to each of the challenged provisions. Tr. of Oral Arg. 13. These assertions alone would justify vacating the judgment of the Court of Appeals insofar as that court did more than direct the entry of a preliminary injunction. In Singleton v. Wulff, supra, at 120, for example, this Court reversed the Court of Appeals' decision to reach the merits of that case, even though this Court had "no idea what evidence, if any, petitioner would, or could, offer in defense of this statute," because it was clear that "petitioner has had no opportunity to proffer such evidence." I would apply that reasoning here even if I were not persuaded that as to several of the challenged provisions additional factual development - for example, facts concerning the costs associated with the reporting and informed consent provisions, and the extent of the problems Pennsylvania was seeking to correct - could affect the decision on the merits. Appellants should not have to prove that they are entitled to an opportunity to be heard. </s> Since it rendered "what amounts to a final declaratory judgment on the constitutionality of the statute," ante, at 806 (WHITE, J., dissenting), the Court of Appeals necessarily believed that in light of Akron and its companion cases appellees had established a sufficient likelihood of success on the merits to warrant issuance of a preliminary injunction. Pennsylvania contends that this ruling is erroneous even under the supervening decisions of this Court. In the alternative, Pennsylvania suggests that the facial constitutionality of the challenged provisions of its Abortion Act may be sustained on this record. </s> I agree with much of what JUSTICE WHITE has written in Part II of his dissenting opinion, and the arguments he has framed might well suffice to show that the provisions at issue are facially constitutional. Nonetheless, I believe the proper course is to decide this case as the Court of Appeals should have decided it, lest appellees suffer the very prejudice the Court sees fit to inflict on appellants. For me, then, the [476 U.S. 747, 828] question is not one of "success" but of the "likelihood of success." In addition, because Pennsylvania has not asked the Court to reconsider or overrule Roe v. Wade, 410 U.S. 113 (1973), I do not address that question. </s> I do, however, remain of the views expressed in my dissent in Akron, 462 U.S., at 459 -466. The State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist "throughout pregnancy." Id., at 461 (O'CONNOR, J., dissenting). Under this Court's fundamental-rights jurisprudence, judicial scrutiny of state regulation of abortion should be limited to whether the state law bears a rational relationship to legitimate purposes such as the advancement of these compelling interests, with heightened scrutiny reserved for instances in which the State has imposed an "undue burden" on the abortion decision. Id., at 461-463 (O'CONNOR, J., dissenting). An undue burden will generally be found "in situations involving absolute obstacles or severe limitations on the abortion decision," not wherever a state regulation "may `inhibit' abortions to some degree." Id., at 464 (O'CONNOR, J., dissenting). And if a state law does interfere with the abortion decision to an extent that is unduly burdensome, so that it becomes "necessary to apply an exacting standard of review," id., at 467 (O'CONNOR, J., dissenting), the possibility remains that the statute will withstand the stricter scrutiny. See id., at 473-474 (O'CONNOR, J., dissenting); Ashcroft, 462 U.S., at 505 (O'CONNOR, J., concurring in judgment in part and dissenting in part). </s> These principles for evaluating state regulation of abortion were not newly minted in my dissenting opinion in Akron. Apart from Roe's outmoded trimester framework, the "unduly burdensome" standard had been articulated and applied with fair consistency by this Court in cases such as Harris v. McRae, 448 U.S. 297, 314 (1980), Maher v. Roe, 432 U.S. 464, 473 (1977), Beal v. Doe, 432 U.S. 438, 446 (1977), and Bellotti v. Baird, 428 U.S. 132, 147 (1976). In Akron and [476 U.S. 747, 829] Ashcroft the Court, in my view, distorted and misapplied this standard, see Akron, 462 U.S., at 452 -453 (O'CONNOR, J., dissenting), but made no clean break with precedent and indeed "follow[ed] this approach" in assessing some of the regulations before it in those cases. Id., at 463 (O'CONNOR, J., dissenting). </s> The Court today goes well beyond mere distortion of the "unduly burdensome" standard. By holding that each of the challenged provisions is facially unconstitutional as a matter of law, and that no conceivable facts appellants might offer could alter this result, the Court appears to adopt as its new test a per se rule under which any regulation touching on abortion must be invalidated if it poses "an unacceptable danger of deterring the exercise of that right." Ante, at 767. Under this prophylactic test, it seems that the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it. Simultaneously, the Court strains to discover "the anti-abortion character of the statute," ante, at 764, and, as JUSTICE WHITE points out, invents an unprecedented canon of construction under which "in cases involving abortion, a permissible reading of a statute is to be avoided at all costs." Ante, at 812 (dissenting). I shall not belabor the dangerous extravagance of this dual approach, because I hope it represents merely a temporary aberration rather than a portent of lasting change in settled principles of constitutional law. Suffice it to say that I dispute not only the wisdom but also the legitimacy of the Court's attempt to discredit and pre-empt state abortion regulation regardless of the interests it serves and the impact it has. </s> Under the "unduly burdensome" test, the District Judge's conclusion that appellees were not entitled to a preliminary injunction was clearly correct. Indeed, the District Judge applied essentially that test, after suggesting that no "meaningful distinction can be made between the plaintiffs' `legally [476 U.S. 747, 830] significant burden' and defendants' `undue burden.'" 552 F. Supp., at 796. I begin, as does the Court, with the Act's informed consent provisions. </s> The Court condemns some specific features of the informed consent provisions of 3205, and issues a blanket condemnation of the provisions in their entirety as irrelevant or distressing in some cases and as intruding on the relationship between the woman and her physician. JUSTICE WHITE convincingly argues that none of the Court's general criticisms is appropriate, since the information is clearly relevant in many cases and is calculated to inform rather than intimidate, and since all informed consent requirements must, from the very rationale for their existence, intrude to some extent on the physician's discretion to be the sole judge of what his or her patient needs to know. The "parade of horribles" the Court invalidated in Akron, supra, at 445, is missing here. For example, 3205(a)(iii) requires that the woman be informed, "when medically accurate," of the risks associated with a particular abortion procedure, and 3205(a)(v) requires the physician to inform the woman of "[t]he medical risks associated with carrying her child to term." This is the kind of balanced information I would have thought all could agree is relevant to a woman's informed consent. </s> I do not dismiss the possibility that requiring the physician or counselor to read aloud the State's printed materials if the woman wishes access to them but cannot read raises First Amendment concerns. Even the requirement that women who can read be informed of the availability of those materials, and furnished with them on request, may create some possibility that the physician or counselor is being required to "communicate [the State's] ideology." Akron, supra, at 472, n. 16 (O'CONNOR, J., dissenting); see Wooley v. Maynard, 430 U.S. 705 (1977). Since the Court of Appeals did not reach appellees' First Amendment claim, and since appellees do not raise it here, I need not decide whether this potential problem would be sufficiently serious to warrant issuance of a [476 U.S. 747, 831] preliminary injunction as to those portions of 3205 that incorporate the printed information provisions of 3208. I note, however, that this is one of many points on which fuller factual development, including the actual contents of the printed materials, could affect resolution of the merits. </s> The Court singles out for specific criticism the required description, in the printed materials, of fetal characteristics at 2-week intervals. These materials, of course, will be shown to the woman only if she chooses to inspect them. If the materials were sufficiently inflammatory and inaccurate the fact that the woman must ask to see them would not necessarily preclude finding an undue burden, but there is no indication that this is true of the description of fetal characteristics the statute contemplates. Accordingly, I think it unlikely that appellees could succeed in making the threshold showing of an undue burden on this point, and the information is certainly rationally related to the State's interests in ensuring informed consent and in protecting potential human life. Similarly, I see little chance that appellees can establish that the abortion decision is unduly burdened by 3205's requirements that the woman be informed of the availability of medical assistance benefits and of the father's legal responsibility. Here again, the information is indisputably relevant in many cases and would not appear to place a severe limitation on the abortion decision. </s> The Court's rationale for striking down the reporting requirements of 3214, as JUSTICE WHITE shows, rests on an unsupported finding of fact by this Court to the effect that "[i]dentification is the obvious purpose of these extreme reporting requirements." Ante, at 767 (opinion of the Court). The Court's "finding," which is contrary to the preliminary finding of the District Judge that the statute's confidentiality requirements protected against any invasion of privacy that could burden the abortion decision, see 552 F. Supp., at 804, is simply another consequence of the Court's determination to prevent the parties from developing the facts. I do not [476 U.S. 747, 832] know whether JUSTICE WHITE is correct in stating that "the provisions pose little or no threat to the woman's privacy," ante, at 807 (dissenting), and I would leave that determination for the District Court, which can hear evidence on this point before making its findings. I do not, however, see a substantial threat of identification on the face of the statute, which does not require disclosure of the woman's identity to anyone, and which provides that reports shall be disclosed to the public only in "a form which will not lead to the disclosure of the identity of any person filing a report." 3214(e)(2). I therefore conclude that the District Judge correctly ruled that appellees are unlikely to succeed in establishing an undue burden on the abortion decision stemming from the possibility of identification. </s> I fully agree with JUSTICE WHITE that the Court has misconstrued the intended meaning of 3210(b)'s requirement that physicians employ the abortion method that is most likely to save the fetus unless, in the physician's good-faith judgment, that method "would present a significantly greater risk to the life or health of the pregnant woman." Since 3210(b) can fairly be read to require "only that the risk be a real and identifiable one," ante, at 807 (WHITE, J., dissenting), there is little possibility that a woman's abortion decision will be unduly burdened by risks falling below that threshold. Accordingly, 3210(b) should not be preliminarily enjoined, and I express no opinion as to the point at which a "trade-off" between the health of the woman and the survival of the fetus would rise to the level of an undue burden. </s> Since appellants and appellees agree that no further factfinding is needed concerning appellees' challenge to 3210(c)'s second-physician requirement, I am willing to assume that the merits of that challenge are properly before us. I have nothing to add to JUSTICE WHITE'S demonstration that this provision is constitutional under Ashcroft because the Act effectively provides for an exception making this requirement inapplicable in emergency situations. I likewise agree [476 U.S. 747, 833] with JUSTICE WHITE that the preliminary injunction entered against enforcement of the Act's parental notice and consent provisions should be vacated, since, as in Ashcroft, there is no reason here to believe that the State will not provide for the expedited procedures called for by its statute. See Ashcroft, 462 U.S., at 491 , n. 16 (opinion of POWELL, J.). I add only that the Court's explanation for its refusal to follow Ashcroft - that the new rules "should be considered by the District Court in the first instance," ante, at 758, n. 9 - does not square with its insistence on resolving the rest of this case without giving the District Court an opportunity to do so. </s> In my view, today's decision makes bad constitutional law and bad procedural law. The "`undesired and uncomfortable straitjacket'" in this case, ante, at 762, is not the one the Court purports to discover in Pennsylvania's statute; it is the one the Court has tailored for the 50 States. I respectfully dissent. </s> [Footnote * The extraordinary importance of prompt resolution of the steel companies' claims is shown by the fact that this Court granted certiorari before judgment in the Court of Appeals three days after the District Court ruled, and set the case for argument nine days later, "[d]eeming it best that the issues raised be promptly decided by this Court." 343 U.S., at 584 . </s> [476 U.S. 747, 834]

United States Supreme Court De SYLVA v. BALLENTINE(1956) No. 529 Argued: Decided: June 11, 1956 </s> The Copyright Act grants to the author, "or the widow, widower, or children of the author, if the author be not living," the right of renewal of a copyright for a further 28-year term after the expiration of the original 28-year term. Held: </s> 1. After the author's death, the widow and children of the author succeed to the right of renewal as a class, and are each entitled to share in the renewal term of the copyright. Pp. 573-580. </s> 2. In the instant case, an illegitimate child of the author, who under the applicable state law would be an heir of the author, is within the term "children." Pp. 580-582. </s> (a) While the scope of a federal right is a federal question, its content may yet be determined by state rather than federal law, especially where the law of domestic relations is concerned. P. 580. </s> (b) Whether an illegitimate child is within the term "children," as used in this provision of the Act, is to be determined by whether, under state law, the child would be an heir of the author. Pp. 580-581. </s> (c) In the instant case, the only State concerned is California, and the question is to be determined with reference to the law of that State. P. 581. </s> (d) Under 255 of the California Probate Code, an illegitimate child who is acknowledged by his father, by a writing signed in the presence of a witness, is entitled to inherit his father's estate as well as his mother's (although he may not be legitimate for all purposes), and that is sufficient for the purposes of the copyright Act. Pp. 581-582. </s> 226 F.2d 623, affirmed. </s> Theodore Kiendl argued the cause for petitioner. With him on the brief was Pat A. McCormick and John H. Cleary, Jr. </s> Max Fink argued the cause for respondent. With him on the brief was Milton A. Rudin. [351 U.S. 570, 571] </s> Solicitor General Sobeloff, Acting Assistant Attorney General Leonard, Paul A. Sweeney, Herman Marcuse and Abraham L. Kaminstein filed a brief for the Register of Copyrights, as amicus curiae. </s> Briefs of amici curiae urging reversal were filed by Sidney Wm. Wattenberg for the Music Publishers' Protective Association, Inc., Herman Finkelstein for the American Society of Composers, Authors and Publishers, and Morris Ebenstein, with whom Sidney A. Schreiber was on the motion for leave to file the brief, for the Motion Picture Association of America, Inc. </s> John Schulman filed a brief for the Songwriters' Protective Association, as amicus curiae, and Solomon A. Klein was with him on the motion for leave to filed this brief. </s> Opinion of the Court by MR. JUSTICE HARLAN, announced by MR. JUSTICE BURTON. </s> The present Copyright Act 1 provides for a second 28-year copyright after the expiration of the original 28-year term, if application for renewal is made within one year before the expiration of the original term. This right to renew the copyright appears in 24 of the Act: </s> "And provided further, That in the case of any other copyrighted work, . . . the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application [351 U.S. 570, 572] for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright . . . ." </s> In this case, an author who secured original copyrights on numerous musical compositions died before the time to apply for renewals arose. He was survived by his widow and one illegitimate child, who are both still living. The question this case presents is whether that child is entitled to share in the copyrights which come up for renewal during the widow's lifetime. </s> Respondent, the child's mother, brought this action on the child's behalf against the widow, who is the petitioner here, seeking a declaratory judgment that the child has an interest in the copyrights already renewed by the widow and those that will become renewable during her lifetime, and for an accounting of profits from such copyrights as have been already renewed. The District Court, holding that the child was within the meaning of the term "children" as used in the statute but that the renewal rights belonged exclusively to the widow, gave judgment for the widow. Agreeing with the District Court on the first point, the Court of Appeals reversed holding that on the author's death both widow and child shared in the renewal copyrights. 226 F.2d 623. Because of the great importance of these questions in the administration of the Copyright Act, we granted certiorari, 350 U.S. 931 . </s> The controversy centers around the words "or the widow, widower, or children of the author, if the author be not living." Two questions are involved: (1) do the widow and children take as a class, or in order of enumeration, and (2) if they take as a class, does "children" include an illegitimate child. Strangely enough, these [351 U.S. 570, 573] questions have never before been decided, although the statutory provisions involved have been part of the Act in their present form since 1870. </s> I. </s> The widow first contends that, after the death of the author, she alone is entitled to renew copyrights during her lifetime, exclusive of any interest in "children" of the author. That is, she interprets the clause as providing for the passing of the renewal rights, on the death of the author, first to the widow, and then only after her death to the "children" of the author. If the word "or" which follows "widower" is to be read in its normal disjunctive sense, this is not an unreasonable interpretation of the statute, which might then well be read to mean that "children" are to renew only if there is no "widow" or "widower." The statute is hardly unambiguous, however, and presents problems of interpretation not solved by literal application of words as they are "normally" used. The statute must be read as a whole, and putting each word in its proper context we are unable to say, as the widow contends we should, that the clear purport of the clause in question is the same as if it read "or the widow, or widower, if the author be not living, or the children of the author, if the author, and widow or widower, be not living." </s> We start with the proposition that the word "or" is often used as a careless substitute for the word "and"; that is, it is often used in phrases where "and" would express the thought with greater clarity. That trouble with the word has been with us for a long time: see, e. g., United States v. Fisk, 3 Wall. 445. In this instance, we need look no further than the very next clause in this same section of the Copyright Act for an example of this careless usage: ". . . or if such author, widow, widower [351 U.S. 570, 574] or children be not living, then the author's executors . . . ." If the italicized "or" in that clause is read disjunctively, then the author's executors would be entitled to renew the copyright if any one of the persons named "be not living." It is clear, however, that the executors do not succeed to the renewal interest unless all of the named persons are dead, since from the preceding clause it is at least made explicit that the "widow, widower, or children of the author" all come before the executors, after the author's death. The clause would be more accurate, therefore, were it to read "author, widow or widower, and children." It is argued with some force, then, that if in the succeeding clause the "or" is to be read as meaning "and" in the same word grouping as is involved in the clause in question, it should be read that way in this clause as well. If this is done, it is then an easy step to read "widow" and "children" as succeeding to the renewal interest as a class, as the Court of Appeals held they did. </s> This Court has already traced the development of the renewal term in the several copyright statutes enacted in this country. See Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643 , where it was held that the author, during his lifetime, could make a binding assignment of the expectancy in his future rights of renewal. The first federal statute, the Act of May 31, 1790, 1 Stat. 124, did not allow renewal by anyone except the author. In 1831, however, a new Act was passed, which for the first time gave to the author's family the right to renew after his death. Act of February 3, 1831, 4 Stat. 436. Section 2 of that Act provided: </s> "That if, at the expiration of the aforesaid term of years, such author . . . be still living, and a citizen . . . of the United States, or resident therein, or being dead, shall have left a widow, or child, or [351 U.S. 570, 575] children, either or all then living, the same exclusive right shall be continued to such author . . ., or, if dead, then to such widow and child, or children, for the further term of fourteen years . . . ." (Italics supplied.) </s> It is significant that this statute, which instituted the present scheme of allowing a copyright to be renewed after the author's death, provided for the renewal interest in the "widow and child, or children," rather than in the widow or children separately. Petitioner concedes that under this statute the widow and children took as a class. This statute marked a major development in this phase of copyright legislation and created a system which, in its basic form, has been continued even to the present statute. </s> Section 88 of the Act of July 8, 1870, 16 Stat. 212, in consolidating the language of 2 of the 1831 Act, made one important change in the language of the renewal section: the right of renewal was given to the author's widow or children, rather than to the widow and children. The section read as follows: </s> "That the author, . . . . if he be still living and a citizen of the United States or resident therein, or his widow or children, if he be dead, shall have the same exclusive right continued for the further term of fourteen years . . . ." (Italics supplied.) </s> This section became 4954 of the Revised Statutes, and was amended in 1891, 26 Stat. 1107, by deleting the requirement that the author be a citizen or resident of the United States. The section was otherwise left intact. The present renewal provision appeared first as 23 of the Copyright Act of March 4, 1909, 35 Stat. 1080, and was continued without change in 17 U.S.C. 24. </s> Knowing, as we do, that "or" can be ambiguous when used in such a context as this, it is difficult to say that [351 U.S. 570, 576] the change made in the 1870 Copyright Act had the effect of changing, as petitioner contends it did, the children's interest from an interest shared with the widow to one which became effective only after her death. There is no legislative history, either when the 1870 Act was passed or in the subsequent sessions of Congress, to indicate that Congress in fact intended to change in this respect the existing scheme of distribution of the renewal rights. Rather, what scant material there is indicates that no substantial changes in the Act were intended. 2 It would not seem unlikely that the framers of the 1870 statute, interested in compressing the somewhat cumbersome phrasing of the prior Copyright Act, simply deleted the words "and child" with the thought that the remaining phrase "or children" expressed precisely the same result, leaving unaffected the rights of the author's children which had been the same for almost forty years. </s> We then come to the 1909 Copyright Act. By 23 of that Act, now 17 U.S.C. 24, there were added to those entitled to renewal rights after the author's death - the widow or children - the author's executors, or, in the absence of a will, his next of kin. Each of these named classes is separated in the statute by a condition precedent to the passing of the renewal rights, namely, that the persons named in the preceding class be deceased. As already noted, it is at least clear that, if the author and his widow have both died, survived by a child, that child is entitled to renew copyrights maturing during his lifetime. But if this interest were to take effect only after the death of the widow, it might be expected that the drafters of the Act would have separated "widow or widower" from "children" with the same condition precedent used in defining the succession of the other classes to the renewal rights, since it would in effect be placing the children [351 U.S. 570, 577] in a class lower than that occupied by the widow or widower. Granting that the absence of this structure might simply have been due to carelessness in adding the new class to the prior renewal section, we think it may nevertheless be taken as some indication that the widow and children are to take the right to renew at the same time. </s> The Solicitor General has filed a helpful brief on behalf of the Register of Copyrights, as amicus curiae, in which the administrative practice of the Copyright Office is discussed. It appears that the Regulations issued under the 1909 Act, in force until 1948 (when new Regulations, not touching on this point, were issued), allowed the children of the author to apply for copyright renewals after the author's death along with the widow or widower - that is, the children were not treated as being entitled to renewal only after the death of the widow or widower. 3 The practice of the Copyright Office has been to register renewal claims by children during the lifetime of an author's widow or widower, although this practice, it is frankly admitted, is more the result of a decision that there is substantial doubt over the question, rather than the result of a confident interpretation of the statute as treating widows, widowers, and children as members of one class. Although we would ordinarily give weight to the interpretation [351 U.S. 570, 578] of an ambiguous statute by the agency charged with its administration, cf. Mazer v. Stein, 347 U.S. 201, 211 -213, we think the Copyright Office's explanation of its practice deprives the practice of any force as an interpretation of the statute, and we therefore do not rely on it in this instance. </s> Petitioner and several of the associations which have filed amicus briefs point out that the "universal" interpretation of 24 has been that children are entitled to renewal only after the death of the widow or widower. In light of the Copyright Office practice alone, that is obviously an overstatement. Nevertheless, had there been a long-standing consistent attitude by the specialists in this field of law, and a more adequate basis for it than exists here, we might hesitate to overturn what had come to be a generally accepted view of a statute having such important consequences. But we cannot escape the conclusion that, in this instance, any such reliance on that interpretation of the Act was misplaced: the statute is far from clear, the Copyright Office has recognized its ambiguity, renewal applications have for many years been filed by children before the death of the widow or widower, and more than one qualified commentator has either expressed doubt on the question or has concluded that the widow or widower and children take as a class. 4 </s> Nor is it possible for us to say, as petitioner suggests, that the only way to satisfy the congressional purpose is to hold that, during her lifetime, the widow has exclusive renewal rights. Petitioner argues that the statute, contemplating the normal situation of a widow taking care [351 U.S. 570, 579] of her children, gives the widow exclusive control of the copyright on the author's death, since she is presumably more capable of dealing with it and will more likely be in need of the copyright income. This branch of the argument, however, becomes very much diluted when it is observed that, if the deceased author be a woman, the statute disposes of the renewal rights in the same manner as if the author were a male. It is further argued that since the value of the copyright depends to an appreciable extent on the ability to convey clear publication rights, the statute should not be construed to diminish the value of the copyright by scattering its ownership, which might make it difficult to transfer clear title. One difficulty with this argument is that it ignores the 1831 statute, which, as petitioner recognizes, divided the ownership of the renewal rights between the surviving spouse of the author and his children. What we are asked to do is to avoid, on policy grounds, an interpretation of the successor statute which embodies the policy of the earlier Act, a policy which Congress saw fit to effectuate at least until 1870, and which, if changed then, was changed without any discernible display of dissatisfaction with that policy. This is not the type of case where we can use, as a guide to statutory interpretation, an unwillingness to attribute to Congress results which on their face are harsh, or present constitutional difficulties, or which are so extraordinary that clear, unambiguous wording is required. Cf. United States v. Minker, 350 U.S. 179 . In view of this explicit prior legislation, this Court should not transfuse the successor statute with a gloss of its own choosing, especially where the choice between the alternative policies is as close as this one. 5 </s> [351 U.S. 570, 580] </s> While the matter is far from clear, we think, on balance, the more likely meaning of the statute to be that adopted by the Court of Appeals, and we hold that, on the death of the author, the widow and children of the author succeed to the right of renewal as a class, and are each entitled to share in the renewal term of the copyright. </s> II. </s> We come, then, to the question of whether an illegitimate child is included within the term "children" as used in 24. The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204 ; Board of County Commissioners v. United States, 308 U.S. 343, 351 -352. This is especially true where a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern. </s> If we look at the other persons who, under this section of the Copyright Act, are entitled to renew the copyright after the author's death, it is apparent that this is the general scheme of the statute. To decide who is the widow or widower of a deceased author, or who are his executors or next of kin, requires a reference to the law of the State which created those legal relationships. The word "children," although it to some extent describes a purely physical relationship, also describes a legal status not unlike the others. To determine whether a child has been legally adopted, for example, requires a reference to state law. We think it proper, therefore, to [351 U.S. 570, 581] draw on the ready-made body of state law to define the word "children" in 24. This does not mean that a State would be entitled to use the word "children" in a way entirely strange to those familiar with its ordinary usage, but at least to the extent that there are permissible variations in the ordinary concept of "children" we deem state law controlling. Cf. Seaboard Air Line Railway v. Kenney, 240 U.S. 489 . 6 </s> This raises two questions: first, to what State do we look, and second, given a particular State, what part of that State's law defines the relationship. The answer to the first question, in this case, is not difficult, since it appears from the record that the only State concerned is California, and both parties have argued the case on that assumption. The second question, however, is less clear. An illegitimate child who is acknowledged by his father, by a writing signed in the presence of a witness, is entitled under 255 of the California Probate Code 7 to inherit his father's estate as well as his mother's. The District Court found that the child here was within the [351 U.S. 570, 582] terms of that section. Under California law the child is not legitimate for all purposes, however; compliance with 230 of the Civil Code 8 is necessary for full legitimation, and there are no allegations in the complaint sufficient to bring the child within that section. Hence, we may take it that the child is not "adopted" in the sense that he is to be regarded as a legitimate child of the author. </s> Considering the purposes of 24 of the Copyright Act, we think it sufficient that the status of the child is that described by 255 of the California Probate Code. The evident purpose of 24 is to provide for the family of the author after his death. Since the author cannot assign his family's renewal rights, 24 takes the form of a compulsory bequest of the copyright to the designated persons. This is really a question of the descent of property, and we think the controlling question under state law should be whether the child would be an heir of the author. It is clear that under 255 the child is, at least to that extent, included within the term "children." </s> Finally, there remains the question of what are the respective rights of the widow and child in the copyright renewals, once it is accepted that they both succeed to the renewals as members of the same class. Since the parties have not argued this point, and neither court below has passed on it, we think it should not be decided at this time. </s> For the foregoing reasons, the judgment of the Court of Appeals is </s> Affirmed. </s> Footnotes [Footnote 1 61 Stat. 652, 17 U.S.C. 1 et seq. </s> [Footnote 2 See Cong. Globe, 41st Cong., 2d Sess. 2680, 2854 (1870). </s> [Footnote 3 37 CFR, 1938, 201.24 (a): "Application for the renewal of a subsisting copyright may be filed within 1 year prior to the expiration of the existing term by: "(1) The author of the work if still living; "(2) The widow, widower, or children of the author if the author is not living; "(3) The author's executor, if such author, widow, widower, or children be not living; "(4) If the author, widow, widower, and children are all dead, and the author left no will, then the next of kin." See 48, Copyright Office Bulletin No. 15 (1913); 46, Copyright Office Bulletin No. 15 (1910). </s> [Footnote 4 See, e. g., Chafee, Reflections on the Law of Copyright, 45 Col. L. Rev. 503, 527; Kupferman, Renewal of Copyright - Section 23 of the Copyright Act of 1909, 44 Col. L. Rev. 712, 717; Tannenbaum, Practical Problems in Copyright, 7 Copyright Problems Analyzed (CCH) 7, 12 (1952). But see, e. g., Nicholson, A Manual of Copyright Practice, 195, 196; De Wolf, An Outline of Copyright Law, 66. </s> [Footnote 5 Petitioner also argues that since the statute does not specifically provide for an allocation, as between the widow or widower and children, of their respective interests in the renewal copyrights, it should not be read as providing for their succeeding to the renewal [351 U.S. 570, 581] rights as a class. But neither did the 1831 Act provide for a division of the copyright between widow and child or children; nor does the present Act allocate the renewal rights as between those included in the term "next of kin." The absence of such a provision, therefore, is not persuasive as an aid to interpretation of the statute. </s> [Footnote 6 Petitioner relies on McCool v. Smith, 1 Black 459, for the proposition that a general statutory reference to "children" means only legitimate children. The actual decision in that case, decided in 1862, concerned only the interpretation of a state statute, and we do not consider it controlling here. Cf. Hutchinson Investment Co. v. Caldwell, 152 U.S. 65, 70 . </s> [Footnote 7 "Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father, and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father by inheriting any part of the estate of the father's kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child is deemed legitimate for all purposes of succession. An illegitimate child may represent his mother and may inherit any part of the estate of the mother's kindred, either lineal or collateral." </s> [Footnote 8 "The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this Chapter do not apply to such an adoption." [351 U.S. 570, 583] </s> MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring. </s> The meaning of the word "children" as used in 24 of the Copyright Act is a federal question. Congress could of course give the word the meaning it has under the laws of the several States. See Hutchinson Investment Co. v. Caldwell, 152 U.S. 65, 68 -69; Poff v. Pennsylvania R. Co., 327 U.S. 399, 401 . But I would think the statutory policy of protecting dependents would be better served by uniformity, rather than by the diversity which would flow from incorporating into the Act the laws of forty-eight States. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 367 ; National Metropolitan Bank v. United States, 323 U.S. 454, 456 ; Heiser v. Woodruff, 327 U.S. 726, 732 ; United States v. Standard Oil Co., 332 U.S. 301, 307 . </s> An illegitimate child was given the benefits of the Federal Death Act by Middleton v. Luckenbach S. S. Co., 70 F.2d 326, 329-330, where the Court of Appeals for the Second Circuit said: </s> "There is no right of inheritance involved here. It is a statute that confers recovery upon dependents, not for the benefit of an estate, but for those who by our standards are legally or morally entitled to support. Humane considerations and the realization that children are such no matter what their origin alone might compel us to the construction that, under present day conditions, our social attitude warrants a construction different from that of the early English view. The purpose and object of the statute is to continue the support of dependents after a casualty. To hold that these children or the parents do not come within the terms of the act would be to defeat the purposes of the act. The benefit conferred beyond being for such beneficiaries is for [351 U.S. 570, 584] society's welfare in making provision for the support of those who might otherwise become dependent. The rule that a bastard is nullius filius applies only in cases of inheritance. Even in that situation we have made very considerable advances toward giving illegitimates the right of capacity to inherit by admitting them to possess inheritable blood." </s> I would take the same approach here and, regardless of state law, hold that illegitimate children were "children" within the meaning of 24 of the Copyright Act, whether or not state law would allow them dependency benefits. </s> With this exception, I join in the opinion of the Court. </s> [351 U.S. 570, 1]

United States Supreme Court CLACKAMAS GASTROENTEROLOGY ASSOCIATES, P. C. v. WELLS(2003) No. 01-1435 Argued: February 25, 2003Decided: April 22, 2003 </s> Respondent filed suit alleging that petitioner medical clinic violated the Americans with Disabilities Act of 1990 (ADA or Act) when it terminated her employment. Petitioner moved for summary judgment, asserting that it was not covered by the Act because it did not have 15 or more employees for the 20 weeks required by the ADA. That assertion's accuracy depends on whether the four physician-shareholders who own the professional corporation and constitute its board of directors are counted as employees. In granting the motion, the District Court concluded that the physicians were more analogous to partners in a partnership than to shareholders in a corporation and therefore were not employees under the ADA. The Ninth Circuit reversed, finding no reason to permit a professional corporation to reap the tax and civil liability advantages of its corporate status and then argue that it is like a partnership so as to avoid employment discrimination liability. Held: 1.The common-law element of control is the principal guidepost to be followed in deciding whether the four director-shareholder physicians in this case should be counted as "employees." Where, as here, a statute does not helpfully define the term "employee," this Court's cases construing similar language give guidance in how best to fill the statutory text's gap. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322, 323. The professional corporation is a new type of business entity with no exact common-law precedent, but the common law's definition of the master-servant relationship provides helpful guidance: the focus on the master's control over the servant. Accordingly, the Equal Employment Opportunity Commission (EEOC) argues that a court should examine whether shareholder-directors operate independently and manage the business or instead are subject to the firm's control. Specific EEOC guidelines discuss the broad question of who is an "employee" and the narrower one of when partners, officers, board of directors' members, and major shareholders qualify as employees. The Court is persuaded by the EEOC's focus on the common-law touchstone of control and specifically by its submission that each of six factors are relevant to the inquiry whether a shareholder-director is an employee. Pp.4-11. </s> 2.Because the District Court's findings appear to weigh in favor of concluding that the four physicians are not clinic employees, but evidence in the record may contradict those findings or support a contrary conclusion under the EEOC's standard, the case is remanded for further proceedings. P.11. 271 F.3d 903, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Rehnquist, C.J., and O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined. </s> CLACKAMAS GASTROENTEROLOGY ASSOCIATES,P. C., PETITIONER v. DEBORAH WELLS on writ of certiorari to the united states court of appeals for the ninth circuit [April 22, 2003] </s> Justice Stevens delivered the opinion of the Court. </s> The Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 327, as amended, 42 U.S.C. §12101 et seq., like other federal antidiscrimination legislation,1 is inapplicable to very small businesses. Under the ADA an "employer" is not covered unless its workforce includes "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." §12111(5). The question in this case is whether four physicians actively engaged in medical practice as shareholders and directors of a professional corporation should be counted as "employees." I </s> Petitioner, Clackamas Gastroenterology Associates, P.C., is a medical clinic in Oregon. It employed respondent, Deborah Anne Wells, as a bookkeeper from 1986 until 1997. After her termination, she brought this action against the clinic alleging unlawful discrimination on the basis of disability under Title I of the ADA. Petitioner denied that it was covered by the Act and moved for summary judgment, asserting that it did not have 15 or more employees for the 20 weeks required by the statute. It is undisputed that the accuracy of that assertion depends on whether the four physician-shareholders who own the professional corporation and constitute its board of directors are counted as employees. The District Court, adopting the Magistrate Judge's findings and recommendation, granted the motion. Relying on an "economic realities" test adopted by the Seventh Circuit in EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177, 1178 (1984), the District Court concluded that the four doctors were "more analogous to partners in a partnership than to shareholders in a general corporation" and therefore were "not employees for purposes of the federal antidiscrimination laws." App. 89. </s> A divided panel of the Court of Appeals for the Ninth Circuit reversed. Noting that the Second Circuit had rejected the economic realities approach, the majority held that the use of any corporation, including a professional corporation, "'precludes any examination designed to determine whether the entity is in fact a partnership.'" 271 F.3d 903, 905 (2001) (quoting Hyland v. New Haven Radiology Associates, P.C., 794 F.2d 793, 798 (CA2 1986)). It saw "no reason to permit a professional corporation to secure the 'best of both possible worlds' by allowing it both to assert its corporate status in order to reap the tax and civil liability advantages and to argue that it is like a partnership in order to avoid liability for unlawful employment discrimination." 271 F.3d, at 905. The dissenting judge stressed the differences between an Oregon physicians' professional corporation and an ordinary business corporation,2 and argued that Congress' reasons for exempting small employers from the coverage of the Act should apply to petitioner. Id., at 906-909 (opinion of Graber, J.). </s> We granted certiorari to resolve the conflict in the Circuits, which extends beyond the Seventh and the Second Circuits.3 536 U.S. 990 (2002). II </s> "We have often been asked to construe the meaning of 'employee' where the statute containing the term does not helpfully define it." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992). The definition of the term in the ADA simply states that an "employee" is "an individual employed by an employer." 42 U.S.C. §12111(4). That surely qualifies as a mere "nominal definition" that is "completely circular and explains nothing." Darden, 503 U.S., at 323. As we explained in Darden, our cases construing similar language give us guidance on how best to fill the gap in the statutory text. In Darden we were faced with the question whether an insurance salesman was an independent contractor or an "employee" covered by the Employee Retirement Income Security Act of 1974 (ERISA). Because ERISA's definition of "employee" was "completely circular," 490 U.S. 730 (1989),4 and we adopted a common-law test for determining who qualifies as an "employee" under ERISA.5 Quoting Reid, 490 U.S., at 739-740, we explained that "'when Congress has used the term 'employee' without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.'" Darden, 503 U.S., at 322-323. </s> Rather than looking to the common law, petitioner argues that courts should determine whether a shareholder-director of a professional corporation is an "employee" by asking whether the shareholder-director is, in reality, a "partner." Brief for Petitioner 9, 15-16, 21 (arguing that the four shareholders in the clinic are more analogous to partners in a partnership than shareholders in a corporation and that "those who are properly classified as partners are not 'employees' for purposes of the anti-discrimination statutes"). The question whether a shareholder-director is an employee, however, cannot be answered by asking whether the shareholder-director appears to be the functional equivalent of a partner. Today there are partnerships that include hundreds of members, some of whom may well qualify as "employees" because control is concentrated in a small number of managing partners. Cf. Hishon v. King & Spalding, 467 U.S. 69, 80, n. 2 (1984) (Powell, J., concurring) ("[A]n employer may not evade the strictures of Title VII simply by labeling its employees as 'partners'"); EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 709 (CA7 2002) (Easterbrook, J., concurring in part and concurring in judgment); Strother v. Southern California Permanente Medical Group, 79 F.3d 859 (CA9 1996). Thus, asking whether shareholder-directors are partners--rather than asking whether they are employees--simply begs the question. </s> Nor does the approach adopted by the Court of Appeals in this case fare any better. The majority's approach, which paid particular attention to "the broad purpose of the ADA," 271 F.3d, at 905, is consistent with the statutory purpose of ridding the Nation of the evil of discrimination. See 42 U.S.C. §12101(b).6 Nevertheless, two countervailing considerations must be weighed in the balance. First, as the dissenting judge noted below, the congressional decision to limit the coverage of the legislation to firms with 15 or more employees has its own justification that must be respected--namely, easing entry into the market and preserving the competitive position of smaller firms. See 271 F.3d, at 908 (opinion of Graber, J.) ("Congress decided 'to spare very small firms from the potentially crushing expense of mastering the intricacies of the antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at compliance fail'" (quoting Papa v. Katy Industries, Inc., 166 F.3d 937, 940 (CA7), cert. denied, 528 U.S. 1019 (1999))). Second, as Darden reminds us, congressional silence often reflects an expectation that courts will look to the common law to fill gaps in statutory text, particularly when an undefined term has a settled meaning at common law. Congress has overridden judicial decisions that went beyond the common law in an effort to correct "the mischief" at which a statute was aimed. See Darden, 503 U.S., at 324-325. </s> Perhaps the Court of Appeals' and the parties' failure to look to the common law for guidance in this case stems from the fact that we are dealing with a new type of business entity that has no exact precedent in the common law. State statutes now permit incorporation for the purpose of practicing a profession, but in the past "the so-called learned professions were not permitted to organize as corporate entities." 1A W. Fletcher, Cyclopedia of the Law of Private Corporations §112.10 (rev. ed. 1997-2002). Thus, professional corporations are relatively young participants in the market, and their features vary from State to State. See generally 1 B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders ¶ ;2.06 (7th ed. 2002) (explaining that States began to authorize the creation of professional corporations in the late 1950's and that the momentum to form professional corporations grew in the 1970's). </s> Nonetheless, the common law's definition of the master-servant relationship does provide helpful guidance. At common law the relevant factors defining the master-servant relationship focus on the master's control over the servant. The general definition of the term "servant" in the Restatement (Second) of Agency §2(2) (1958), for example, refers to a person whose work is "controlled or is subject to the right to control by the master." See also id., §220(1) ("A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control"). In addition, the Restatement's more specific definition of the term "servant" lists factors to be considered when distinguishing between servants and independent contractors, the first of which is "the extent of control" that one may exercise over the details of the work of the other. Id., §220(2)(a). We think that the common-law element of control is the principal guidepost that should be followed in this case. </s> This is the position that is advocated by the Equal Employment Opportunity Commission (EEOC), the agency that has special enforcement responsibilities under the ADA and other federal statutes containing similar threshold issues for determining coverage. It argues that a court should examine "whether shareholder-directors operate independently and manage the business or instead are subject to the firm's control." Brief for United States etal. as Amici Curiae 8. According to the EEOC's view, "[i]f the shareholder-directors operate independently and manage the business, they are proprietors and not employees; if they are subject to the firm's control, they are employees." Ibid. </s> Specific EEOC guidelines discuss both the broad question of who is an "employee" and the narrower question of when partners, officers, members of boards of directors, and major shareholders qualify as employees. See 2 Equal Employment Opportunity Commission, Compliance Manual §§605:0008-605:00010 (2000) (hereinafter EEOC Compliance Manual).7 With respect to the broad question, the guidelines list 16 factors--taken from Darden, 503 U.S., at 323-324--that may be relevant to "whether the employer controls the means and manner of the worker's work performance." EEOC Compliance Manual §605:0008, and n. 71.8 The guidelines list six factors to be considered in answering the narrower question, which they frame as "whether the individual acts independently and participates in managing the organization, or whether the individual is subject to the organization's control." Id., §605:0009. </s> We are persuaded by the EEOC's focus on the common-law touchstone of control, see Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944),9 and specifically by its submission that each of the following six factors is relevant to the inquiry whether a shareholder-director is an employee: "Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work </s> "Whether and, if so, to what extent the organization supervises the individual's work </s> "Whether the individual reports to someone higher in the organization </s> "Whether and, if so, to what extent the individual is able to influence the organization </s> "Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts </s> "Whether the individual shares in the profits, losses, and liabilities of the organization." EEOC Compliance Manual §605:0009.10 </s> As the EEOC's standard reflects, an employer is the person, or group of persons, who owns and manages the enterprise. The employer can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed. The mere fact that a person has a particular title--such as partner, director, or vice president--should not necessarily be used to determine whether he or she is an employee or a proprietor. See ibid. ("An individual's title ... does not determine whether the individual is a partner, officer, member of a board of directors, or major shareholder, as opposed to an employee"). Nor should the mere existence of a document styled "employment agreement" lead inexorably to the conclusion that either party is an employee. See ibid. (looking to whether "the parties intended that the individual be an employee, as expressed in written agreements or contracts"). Rather, as was true in applying common law rules to the independent-contractor-versus-employee issue confronted in Darden, the answer to whether a shareholder-director is an employee depends on "'all of the incidents of the relationship ... with no one factor being decisive.'" 390 U.S. 254, 258 (1968)). III </s> Some of the District Court's findings--when considered in light of the EEOC's standard--appear to weigh in favor of a conclusion that the four director-shareholder physicians in this case are not employees of the clinic. For example, they apparently control the operation of their clinic, they share the profits, and they are personally liable for malpractice claims. There may, however, be evidence in the record that would contradict those findings or support a contrary conclusion under the EEOC's standard that we endorse today.11 Accordingly, as we did in Darden, we reverse the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with this opinion. It is so ordered. </s> CLACKAMAS GASTROENTEROLOGY ASSOCIATES,P. C., PETITIONER v. DEBORAH WELLS on writ of certiorari to the united states court ofappeals for the ninth circuit [April 22, 2003] </s> Justice Ginsburg, with whom Justice Breyer joins, dissenting. </s> "There is nothing inherently inconsistent between the coexistence of a proprietary and an employment relationship." Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 32 (1961). As doctors performing the everyday work of petitioner Clackamas Gastroenterology Associates, P.C., the physician-shareholders function in several respects as common-law employees, a designation they embrace for various purposes under federal and state law. Classifying as employees all doctors daily engaged as caregivers on Clackamas' premises, moreover, serves the animating purpose of the Americans With Disabilities Act of 1990 (ADA or Act). Seeing no cause to shelter Clackamas from the governance of the ADA, I would affirm the judgment of the Court of Appeals. </s> An "employee," the ADA provides, is "an individual employed by an employer." 42 U.S.C. §12111(4). Where, as here, a federal statute uses the word "employee" without explaining the term's intended scope, we ordinarily presume "Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (internal quotation marks and citation omitted). The Court today selects one of the common-law indicia of a master-servant relationship--control over the work of others engaged in the business of the enterprise--and accords that factor overriding significance. Ante, at 8. I would not so shrink the inquiry. </s> Are the physician-shareholders "servants" of Clackamas for the purpose relevant here? The Restatement defines "servant" to mean "an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master." Restatement (Second) of Agency §2(2) (1958) (hereinafter Restatement). When acting as clinic doctors, the physician-shareholders appear to fit the Restatement definition. The doctors provide services on behalf of the corporation, in whose name the practice is conducted. See Ore. Rev. Stat. Ann. §58.185(1)(a) (1998 Supp.) (shareholders of a professional corporation "render the specified professional services of the corporation" (emphasis added)). The doctors have employment contracts with Clackamas, App. 71, under which they receive salaries and yearly bonuses, Tr. of Oral Arg. 8, and they work at facilities owned or leased by the corporation, App. 29, 71. In performing their duties, the doctors must "compl[y] with ... standards [the organization has] established." App. 66; see Restatement, ch. 7, tit. B, Introductory Note, p. 479 ("[F]ully employed but highly placed employees of a corporation ... are no less servants because they are not controlled in their day-to-day work by other human beings. Their physical activities are controlled by their sense of obligation to devote their time and energies to the interests of the enterprise."). </s> The physician-shareholders, it bears emphasis, invite the designation "employee" for various purposes under federal and state law. The Employee Retirement Income Security Act of 1974 (ERISA), much like the ADA, defines "employee" as "any individual employed by an employer." 29 U.S.C. §1002(6). Clackamas readily acknowledges that the physician-shareholders are "employees" for ERISA purposes. Tr. of Oral Arg. 6-7. Indeed, gaining qualification as "employees" under ERISA was the prime reason the physician-shareholders chose the corporate form instead of a partnership. See id., at 7. Further, Clackamas agrees, the physician-shareholders are covered by Oregon's workers' compensation law, ibid., a statute applicable to "person[s] ... who ... furnish services for a remuneration, subject to the direction and control of an employer," Ore. Rev. Stat. Ann. §656.005(30) (1996 Supp.). Finally, by electing to organize their practice as a corporation, the physician-shareholders created an entity separate and distinct from themselves, one that would afford them limited liability for the debts of the enterprise. §§58.185(4), (5), (10), (11) (1998 Supp.). I see no reason to allow the doctors to escape from their choice of corporate form when the question becomes whether they are employees for purposes of federal antidiscrimination statutes. </s> Nothing in or about the ADA counsels otherwise. As the Court observes, the reason for exempting businesses with fewer than 15 employees from the Act, was "to spare very small firms from the potentially crushing expense of mastering the intricacies of the antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at compliance fail." Ante, at 7 (quoting Papa v. Katy Industries, Inc., 166 F.3d 937, 940 (CA7 1999)). The inquiry the Court endorses to determine the physician-shareholders' qualification as employees asks whether they "ac[t] independently and participat[e] in managing the organization, or ... [are] subject to the organization's control." Ante, at 9 (quoting 2 Equal Employment Opportunity Commission, Compliance Manual §605:0008, and n. 71 (2000)). Under the Court's approach, a firm's coverage by the ADA might sometimes turn on variations in ownership structure unrelated to the magnitude of the company's business or its capacity for complying with federal prescriptions. </s> This case is illustrative. In 1996, Clackamas had 4 physician-shareholders and at least 14 other employees for 28 full weeks; in 1997, it had 4 physician-shareholders and at least 14 other employees for 37 full weeks. App. 55-62; see 42 U.S.C. §12111(5) (to be covered by the Act, an employer must have the requisite number of employees "for each working day in each of 20 or more calendar weeks in the current or preceding calendar year"). Beyond question, the corporation would have been covered by the ADA had one of the physician-shareholders sold his stake in the business and become a "mere" employee. Yet such a change in ownership arrangements would not alter the magnitude of Clackamas' operation: In both circumstances, the corporation would have had at least 18 people on site doing the everyday work of the clinic for the requisite number of weeks. </s> The Equal Employment Opportunity Commission's approach, which the Court endorses, it is true, "excludes from protection those who are most able to control the firm's practices and who, as a consequence, are least vulnerable to the discriminatory treatment prohibited by the Act." Brief for United States etal. as Amici Curiae 11; see 42 U.S.C. §§12111(8), 12112(a) (only "employees" are protected by the ADA). As this dispute demonstrates, however, the determination whether the physician-shareholders are employees of Clackamas affects not only whether they may sue under the ADA, but also--and of far greater practical import--whether employees like bookkeeper Deborah Anne Wells are covered by the Act. Because the character of the relationship between Clackamas and the doctors supplies no justification for withholding from clerical worker Wells federal protection against discrimination in the workplace, I would affirm the judgment of the Court of Appeals. </s> FOOTNOTESFootnote 1See, e.g., 29 U.S.C. §630(b) (setting forth a 20-employee threshold for coverage under the Age Discrimination in Employment Act of 1967 (ADEA)); 42 U.S.C. §2000e(b) (establishing a 15-employee threshold for coverage under Title VII of the Civil Rights Act of 1964). Footnote 2The dissenting judge summarized Oregon's treatment of professional corporations as follows: </s> "In Oregon, a physicians' professional corporation, like this one, preserves the professional relationship between the physicians and their patients, as well as the standards of conduct that the medical profession requires. Or. Rev. Stat. §58.185(2). Further, 'a shareholder of the corporation is personally liable as if the shareholder were rendering the service or services as an individual' with respect to all claims of negligence, wrongful acts or omissions, or misconduct committed in the rendering of professional services. Or. Rev. Stat. §58.185(3) (emphasis added). A licensed professional also is jointly and severally liable for such claims, albeit with some dollar limitations. Or. Rev. Stat. §58.185(4)-(9). Ordinary business corporation rules apply only to other aspects of the entity, apart from the provision of professional services. Or. Rev. Stat. §58.185(11). A professional corporation's activities must remain consistent with the requirements of the type of license in question, Or. Rev. Stat. §58.205, and it may merge only with other professional corporations, Or. Rev. Stat. §58.196, so the provision of professional services--with its attendant liabilities--must remain at the heart of a P.C. like this defendant. </s> "Additional special rules apply to professional corporations that are organized to practice medicine, none of which apply to ordinary business corporations. A majority of the directors, the holders of the majority of shares, and all officers except the secretary and treasurer must be Oregon-licensed physicians. Or. Rev. Stat. §58.375(1)(a)-(c). The Board of Medical Examiners is given express statutory authority to require more than a majority of shares, and more than a majority of director positions, to be held by Oregon-licensed physicians. Or. Rev. Stat. §58.375(1)(d)&(e). The Board of Medical Examiners also may restrict the corporate powers of a professional corporation organized for the purpose of practicing medicine, beyond the restrictions imposed on ordinary business corporations. Or. Rev. Stat. §58.379. Lastly, Or. Rev. Stat. §§58.375 through 58.389 contain impediments to the transfer of shares and other corporate activities." 271 F.3d, at 907-908 (opinion of Graber, J.) (footnote omitted). Footnote 3The disagreement in the Circuits is not confined to the particulars of the ADA. For example, the Seventh Circuit's decision in EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177 (1984), concerned Title VII, and the Second Circuit's opinion in Hyland v. New Haven Radiology Associates, P.C., 794 F.2d 793 (1986), involved the ADEA. See also Devine v. Stone, Leyton & Gershman, P.C., 100 F.3d 78 (CA8 1996) (Title VII case). Footnote 4In Reid, 490 U.S., at 738, the ownership of a copyright in a statue depended on whether it had been "'prepared by an employee within the scope of his or her employment'" within the meaning of the Copyright Act of 1976. Footnote 5Darden described the common-law test for determining whether a hired party is an employee as follows: </s> "'[W]e consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.'" 490 U.S. 730, 751-752 (1989), and citing Restatement (Second) of Agency §220(2) (1958)). </s> These particular factors are not directly applicable to this case because we are not faced with drawing a line between independent contractors and employees. Rather, our inquiry is whether a shareholder-director is an employee or, alternatively, the kind of person that the common law would consider an employer. Footnote 6The meaning of the term "employee" comes into play when determining whether an individual is an "employee" who may invoke the ADA's protections against discrimination in "hiring, advancement, or discharge," 42 U.S.C. §12112(a), as well as when determining whether an individual is an "employee" for purposes of the 15-employee threshold. See §12111(5)(A); see also Brief for United States etal. as Amici Curiae 10-11; Schmidt v. Ottawa Medical Center, P.C., __ F.3d __, 91 FEP Cases 305 (CA7 2003). Consequently, a broad reading of the term "employee" would--consistent with the statutory purpose of ridding the Nation of discrimination--tend to expand the coverage of the ADA by enlarging the number of employees entitled to protection and by reducing the number of firms entitled to exemption. Footnote 7The EEOC's guidance states that it applies across the board to other federal antidiscrimination statutes. See EEOC Compliance Manual §605:0001 ("This Section discusses coverage, timeliness, and other threshold issues to be considered when a charge is first filed under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA), or the Equal Pay Act of 1963 (EPA)" (footnote omitted)). Footnote 8For example, the EEOC considers whether the work requires a high level of skill or expertise, whether the employer furnishes the tools, materials and equipment, and whether the employer has the right to control when, where, and how the worker performs the job. Id., §605:0008. Footnote 9As the Government has acknowledged, see Tr. of Oral Arg. 19, the EEOC's Compliance Manual is not controlling--even though it may constitute a "body of experience and informed judgment" to which we may resort for guidance. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see also Christensen v. Harris County, 529 U. S. 576, 587 (2000) (holding that agency interpretations contained in "policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law[,] do not warrant Chevron-style deference"). Footnote 10The EEOC asserts that these six factors need not necessarily be treated as "exhaustive." Brief for United States etal. as Amici Curiae 9. We agree. The answer to whether a shareholder-director is an employee or an employer cannot be decided in every case by a "'shorthand formula or magic phrase.'" Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 (1992) (quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968)). Footnote 11For example, the record indicates that the four director-shareholders receive salaries, Tr. of Oral Arg. 8, that they must comply with the standards established by the clinic, App. 66, and that they report to a personnel manager. Ibid.

United States Supreme Court QUERN v. MANDLEY(1978) No. 76-1159 Argued: November 30, 1977Decided: June 6, 1978 </s> [Footnote * Together with No. 76-1416, Califano, Secretary of Health, Education, and Welfare v. Mandley et al., also on certiorari to the same court. </s> This litigation originated as a challenge to the validity of Illinois' Emergency Assistance to Needy Families with Children (EA) program under Title IV-A of the Social Security Act (SSA). The Court of Appeals, reversing the District Court, first held that the program was invalid because it limited eligibility for such assistance more narrowly than 406 (e) (1) of the SSA, which makes federal matching funds available under a state EA program for emergency aid to intact families with children if threatened with destitution, regardless of the cause of the need. In a later appeal involving the validity of a proposed alternative to the EA program, the Court of Appeals held that 403 (a) (5) of the SSA, which authorizes federal funding of a state EA program, is the exclusive source of federal funds for a state program of emergency assistance and that therefore a new "special needs" program that Illinois proposed to operate under its Title IV-A Aid to Families with Dependent Children (AFDC) program, funded under 403 (a) (1) of the SSA, in place of its withdrawn EA program, must, as a de facto EA program, extend aid to all persons eligible under 406 (e) (1). Held: </s> 1. There is nothing in the policies or history of the EA statute to indicate that Illinois' proposed "special needs" program should not be judged solely under the requirements for an AFDC program funded under 403 (a) (1) without regard to the EA requirements of 406 (e) and 403 (a) (5). Pp. 735-736. </s> 2. The proposed "special needs" program is permissible as part of an AFDC program alone. A plan to meet certain emergency needs of AFDC recipients - specifically actual or threatened loss of shelter due to damage or eviction - is not necessarily improper as an AFDC "special needs" program simply because it addresses a nonrecurring need that could alternatively be provided for under an EA program. Pp. 737-739. </s> 3. Neither 402 (a) (10) of the SSA, which makes AFDC, not EA, eligibility criteria mandatory, nor 406 (e), which defines the [436 U.S. 725, 726] permissible scope of an EA program for purpose of federal funding, imposes mandatory eligibility standards on States that elect to participate in the EA program, and therefore Illinois is not precluded from receiving matching federal funds for either an EA or a "special needs" program simply because it limits eligibility for aid under that program more narrowly than 406 (e). Pp. 739-747. </s> 545 F.2d 1062, reversed and remanded. </s> STEWART, J., delivered the opinion of the Court, in which all other Members joined except BLACKMUN, J., who took no part in the consideration or decision of the cases. </s> George W. Lindberg, First Assistant Attorney General of Illinois, argued the cause for petitioners in No. 76-1159. With him on the briefs were William J. Scott, Attorney General, and Paul J. Bargiel and Paul V. Esposito, Assistant Attorneys General. Deputy Solicitor General Jones argued the cause for petitioner in No. 76-1416. With him on the brief were Solicitor General McCree, Assistant Attorney General Babcock, Marion L. Jetton, William Kanter, and Harry R. Silver. </s> Michael F. Lefkow argued the cause for respondents in both cases. With him on the brief was Stephen G. Seliger.Fn </s> Fn [436 U.S. 725, 726] William F. Hyland, Attorney General, Stephen Skillman, Assistant Attorney General, and, Richard M. Hluchan, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal. </s> Theodore C. Diller and Deborah C. Franczek filed a brief for the United Way of Metropolitan Chicago et al. as amici curiae urging affirmance. </s> Francis X. Bellotti, Attorney General, and S. Stephen Rosenfeld and Garrick F. Cole, Assistant Attorneys General, filed a brief for the Commonwealth of Massachusetts as amicus curiae. </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> These cases require examination of the interplay between state option and federal mandate within the system of cooperative federalism created by the public assistance programs of Title IV-A of the Social Security Act, 42 U.S.C. 601 et seq. The ultimate question to be decided is whether a [436 U.S. 725, 727] State may ever receive federal matching funds for a program of emergency assistance to needy families, either under the general program of Aid to Families with Dependent Children (AFDC) 1 or under the specific provisions for Emergency Assistance to Needy Families with Children (EA), 2 if it limits [436 U.S. 725, 728] eligibility for such aid more narrowly than the federal EA statute. </s> I </s> Title IV-A of the Social Security Act establishes several different public aid programs under the general rubric of "Grants to States for Aid and Services to Needy Families with Children." In order to receive federal funds under any of the Title IV-A programs a State must adopt a "state plan for aid and services to needy families with children" that is approved by the United States Department of Health, Education, and Welfare (HEW) as meeting the requirements set forth in 402 of the Act. </s> AFDC is the core of the Title IV-A system. As the Court observed in one of its earliest forays into Title IV, AFDC is a categorical aid program, and "the category singled out for welfare assistance . . . is the `dependent child,' who is defined in 406 of the Act . . . as an age-qualified `needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with' any one of several listed relatives." King v. Smith, 392 U.S. 309, 313 . A State's expenditures for AFDC, under an approved 402 state plan, are reimbursed by the Federal Government according to the formula set forth in 403 (a) (1). </s> The federal EA program was added to Title IV as part of the omnibus Social Security Amendments of 1967. Pub. L. 90-248, 206, 81 Stat. 893. It was described in the Senate Finance Committee report as "a new program optional with the States [to] authorize dollar-for-dollar Federal matching to provide temporary, assistance to meet the great variety of situations faced by needy children in families with emergencies." S. Rep. No. 744, 90th Cong., 1st Sess., 4 (1967). [436 U.S. 725, 729] To participate in the program a State must include a provision for EA in its 402 state plan, and funding at a flat rate of 50% of program expenses is authorized by 403 (a) (5). </s> Unlike AFDC, eligibility for EA is not limited to "dependent children." Instead, the term "emergency assistance to needy families with children" is broadly defined in 406 (e) to include money payments and other kinds of aid provided on a temporary basis "to avoid destitution . . . or to provide living arrangements" for a "needy child under the age of 21 who is . . . without available resources." 42 U.S.C. 606 (e) (1). Thus under the EA statute, federal matching funds are available for emergency aid to intact families with children if threatened with destitution, regardless of the cause of their need. </s> The State of Illinois, however, elected to adopt an EA program of much narrower scope. It provided only for (1) aid to AFDC families who were without shelter as a result of either damage to their homes or court-ordered eviction for reasons other than nonpayment of rent; and (2) aid to applicants determined to be presumptively eligible for AFDC who were in immediate need of clothing or household furnishings. </s> In 1973 the respondents instituted a class action against state and federal officials on behalf of all "AFDC recipients, applicants for AFDC, and other families with needy children" in Illinois seeking a declaratory judgment that the Illinois EA program violated federal law by defining eligibility more narrowly than 406 (e) (1), and an injunction restraining the defendants from administering the allegedly unlawful program. 3 The United States District Court for the Northern [436 U.S. 725, 730] District of Illinois held in an unreported opinion that the State's program was not inconsistent with federal law. The Court of Appeals for the Seventh Circuit reversed this judgment, ruling that "Illinois may no longer conduct an emergency assistance program under [ 406 (e)] in which some of the families with needy children described in [ 406 (e)] are given aid and some are not." Mandley v. Trainor, 523 F.2d 415, 423 (Mandley I). </s> After the Court of Appeals' mandate was returned to the District Court, the plaintiffs submitted a proposed final order requiring the State to conform its EA program to the provisions of 406 (e) and further requiring the federal defendants to promulgate regulations consistent with the Court of Appeals' interpretation of the statute. The state and federal defendants not only opposed the substantive terms of the proposed order, but also filed motions to dismiss the complaint altogether on the ground that the case had been rendered moot by the State's decision to withdraw entirely from the EA program. In support of its motion the State filed an affidavit from the Chief Fiscal Officer of its Department of Public Aid stating that "the Department would immediately cease all activities and requests for federal reimbursement pursuant to the `Emergency Assistance' program of 406 (e) of the Social Security Act" and that "no additional 406 (e) [436 U.S. 725, 731] federal funds [would] be drawn for the balance . . . of the current fiscal year." </s> In opposing the motions to dismiss, the plaintiffs argued that even though the State would no longer request federal reimbursement for emergency aid under 406 (e) and 403 (a) (5), it intended nonetheless to operate virtually the identical program as an AFDC "special needs" program and to seek federal reimbursement under 403 (a) (1). They contended that such a course of conduct would be equally unlawful. The District Court took the position that the validity of any proposed program under the AFDC provisions presented a new question that had not been raised in the original lawsuit, and that the plaintiffs' challenge to the 406 (e) program had indeed been rendered moot by the State's decision to withdraw altogether from the EA program. When the plaintiffs declined to amend their complaint to allege that the new program would also be in violation of 403 (a) (1), the District Court entered an order dismissing the cause "for lack of case or controversy." </s> The Court of Appeals again reversed. Mandley v. Trainor, 545 F.2d 1062 (Mandley II). Noting that the defendants "admit[ted] that they [were] conducting the same program under the label `special assistance' that they formerly conducted under the label of emergency assistance," Id., at 1068, the Court of Appeals held that the change in funding arrangements did not raise issues beyond the scope of the plaintiffs' pleadings, and did not render the case moot. As the appellate court viewed the situation, the plaintiffs were still claiming, as they always had, that any federally funded program for emergency assistance must conform with the eligibility standards of 406 (e) (1), and that the defendants were still violating the federal law by using federal funds to operate an emergency assistance program that defined eligibility more narrowly than 406 (e) (1). On the merits the Court of Appeals agreed with the plaintiffs that 403 (a) (5) [436 U.S. 725, 732] is the exclusive source of federal funds for a program of emergency assistance, and therefore held that Illinois' proposed new program, as a de facto EA program, must extend aid to all persons eligible under 406 (e) (1). </s> Because of the lengthy and, in its view, wrongful delay in the implementation of its Mandley I mandate, the Court of Appeals then considered sua sponte the defendants' objections to the terms of the final order that had been proposed by the plaintiffs after the first remand, and directed the District Court on remand to enter the proposed order with minor modifications. As to the state defendants this order would provide: </s> "Defendants . . . are enjoined, so long as Illinois receives federal funding under Title IV-A of the Social Security Act, from claiming reimbursement for emergency assistance (however designated) under any other section of the Act than 406 (e) and 403 (a) (5) and are enjoined from using any other means of limiting eligibility for emergency assistance more narrowly than the provisions of 406 (e), and are further enjoined from denying emergency assistance . . . to any member of the plaintiff class with a needy child [who is eligible under the definition in 406 (e)]." 4 </s> In addition the Secretary of HEW was to be </s> "enjoined from approving state plans for emergency assistance which limit eligibility more narrowly than [436 U.S. 725, 733] 406 (e) of the Act or funding an emergency assistance program (however designated) under any provision of the Act other than 406 (e) and 403 (a) (5)." 5 </s> The broad injunction ordered by the Court of Appeals raises two distinct statutory questions: whether a program of emergency aid to AFDC families may qualify for federal funding under a provision other than 403 (a) (5), and more particularly as an AFDC "special needs" program under 403 (a) (1); 6 and whether a State that adopts an EA program under 403 (a) (5) and 406 (e) must define eligibility no more narrowly than 406 (e). 7 We granted certiorari, [436 U.S. 725, 734] 431 U.S. 953 , to consider these important questions affecting the nationwide administration of a major federal welfare program. </s> II </s> As the Court of Appeals readily conceded, its holding in Mandley I that federal eligibility standards are mandatory upon States that adopt the optional EA program in no way obligates a State to continue that program. The federal definition of eligibility in 406 (e), like the other provisions of Title IV of the Social Security Act, simply governs the dispensation of federal funds. See Townsend v. Swank, 404 U.S. 282, 292 (BURGER, C. J., concurring in result). And while Congress may attach strings to its offer of federal funding, it does not require the States to accept any federal funds at all. </s> The Court of Appeals also acknowledged that 406 (e) [436 U.S. 725, 735] does not by its own terms attach any eligibility "strings" to a program funded under the AFDC provisions. If Illinois' plan to meet the emergency needs of AFDC recipients by means of AFDC "special needs payments" was proper under 403 (a) (1), the broader EA eligibility definition would have no application. The Court of Appeals believed, however, that the requirements of 406 (e) would be "totally eviscerated" if States could evade them simply by resorting to the AFDC provisions. This effect, in its view, compels the conclusion that 403 (a) (5) is the exclusive source of federal funds for emergency needs, and therefore that emergency payments of the kind contemplated by the Illinois plan 8 cannot be reimbursed under 403 (a) (1) as AFDC "special needs." </s> A </s> Even assuming the Court of Appeals' premise that 406 (e) does impose mandatory standards of eligibility for EA, its conclusion simply does not follow. If a State adopts a program that is, for whatever reason, not a proper EA program, it is no "evasion" of the requirements of 406 (e) to seek alternative funding. It is merely an election not to operate an EA program, but to do something quite different instead. Since the statute clearly offers the States an option whether or not to adopt an EA program, it is in no sense "eviscerated" when a State chooses to forgo the offer. </s> The legislative history does not indicate a contrary intent. The Court of Appeals found highly significant the description [436 U.S. 725, 736] of EA as an altogether "new" program that would provide federal matching for emergency assistance "[f]or the first time," 113 Cong. Rec. 36319 (1967) (remarks of Sen. Curtis). But, as we have already observed, a critical distinction between EA and AFDC is that eligibility for the former does not depend on the absence of a parent from the home. Thus the enactment of EA extended aid to an entirely new class of families that had not previously been eligible for any form of federal assistance. 9 In this context, the fact that EA was described as a "new" program hardly implies an understanding that the emergency needs of persons who were eligible for AFDC could not be met under the existing program. 10 Indeed the contrary understanding is revealed in the observation that emergency assistance to AFDC applicants was "frequently . . . unavailable under State programs today." S. Rep. No. 744, 90th Cong., 1st Sess., 165 (1967). (Emphasis supplied.) </s> There is nothing, therefore, in the policies or history of the EA statute to indicate that Illinois' proposed AFDC special-needs program should not be judged solely under the requirements for an AFDC program funded under 403 (a) (1), without regard to the EA requirements of 406 (e) and 403 (a) (5). Accordingly, we must consider whether the special-needs program proposed by Illinois is permissible as part of an AFDC program alone. [436 U.S. 725, 737] </s> B </s> Illinois' proposed program would recognize specified emergency needs as "special needs items" within its AFDC "standard of need." The standard of need is a dollar figure set by each State reflecting the amount deemed necessary to provide for essential needs, such as food, clothing, and shelter. 11 See Rosado v. Wyman, 397 U.S. 397, 408 . It is the "yardstick" for measuring financial eligibility for assistance, but the level of benefits actually paid is not necessarily a function of the standard of need. Ibid. At least as early as 1966 federal regulations recognized that States could properly include special-needs items in their standards of need for AFDC. 12 These "are usually defined as those needs that are recognized by the State as essential for some persons but not for all, and that must therefore be determined on an individual basis." U.S. Dept. of HEW, Social and Rehabilitation Service, Assistance Payments Administration, Characteristics of State Plans for Aid to Families with Dependent Children xiii (1974) (AFDC Survey). Whenever the special need is found to exist, it is budgeted in the total standard of need. Ibid. </s> Frequently the special need is a regular or recurring expense, such as medication or a medically indicated diet, but this is not always the case. On the contrary, the 1974 AFDC Survey, supra, reveals that HEW has approved state plans that cover a wide variety of needs under the rubric of "special circumstance items," including one-time emergency needs like [436 U.S. 725, 738] replacing major appliances, 13 home repair, 14 and catastrophic loss. 15 Similarly, the loss of shelter because of damage or eviction is a particular, nonrecurring event that befalls some, but not all, AFDC recipients, which may be reflected in an adjustment in the standard of need whenever that event occurs. </s> By approving state plans that cover nonrecurring emergencies as special needs HEW has expressed its view that such items are properly included in the AFDC standard of need for reimbursement under 403 (a) (1). The interpretation of the agency charged with administration of the statute is, of course, entitled to substantial deference. New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421 . Moreover, this view is entirely consistent with the well-established principle that the States have "undisputed power to set the level of benefits and the standard of need" for their AFDC programs. King v. Smith, 392 U.S., at 334 ; Dandridge v. Williams, 397 U.S. 471, 478 ; Rosado v. Wyman, supra, at 408; Jefferson v. Hackney, 406 U.S. 535, 541 . See n. 11, supra. </s> Since Illinois has not in fact submitted a proposed special-needs program for approval, see n. 8, supra, there is no way of knowing whether such a plan would comply in all other respects with the requirements for an AFDC program. But it is clear that a plan to meet certain emergency needs of AFDC recipients - specifically actual or threatened loss of shelter due to damage or eviction - is not necessarily improper as an AFDC special-needs program simply because it addresses a [436 U.S. 725, 739] nonrecurring need that could alternatively be provided for under an EA program. </s> III </s> Although the Court of Appeals' opinion in Mandley II focused on the proposed special-needs program, the injunction it ordered to be entered on remand would prohibit not only the operation of such a program under AFDC, but any program of emergency assistance that defines eligibility more narrowly than 406 (e). In substance, therefore, the injunction would enforce Mandley I's holding that 406 (e) imposes mandatory eligibility standards on States participating in the EA program. Since there is still a live controversy over this issue, see n. 7, supra, it is to that question that we now turn. </s> Section 406 (e) defines EA in terms of four distinct considerations. First, unlike AFDC, it specifies a time limitation: EA may be provided only for a period not to exceed 30 days in any 12-month period. Second, it describes the persons on whose behalf aid may be furnished: needy children under the age of 21 who are living with specified relatives. Third, it defines the circumstances under which aid may be provided: where the child is without resources, and aid is necessary to "avoid destitution . . . or to provide living arrangements" for the child. Finally, it describes the method by which aid may be provided: not only cash payments and medical or remedial care, as under AFDC, but also payments in kind and "such services as may be specified by the Secretary." In summary, under EA any family with children that is for any reason threatened with destitution is eligible for emergency aid at least once in a 12-month period, and that aid may be provided by almost any means. </s> In declaring that Illinois is prohibited from narrowing these broad standards in any way, 16 the Court of Appeals relied on [436 U.S. 725, 740] a long line of this Court's cases mapping out the mandatory reach of the AFDC eligibility provisions. As to AFDC, the law is indeed clear. Each State is entirely free to set its own monetary standard of need and level of benefits. King v. Smith, supra, at 334; Dandridge v. Williams, supra, at 478; Rosado v. Wyman, 397 U.S., at 408 ; Jefferson v. Hackney, supra, at 541. 17 But the States are not free to narrow the federal standards that define the categories of people eligible for aid. Beginning with King v. Smith, supra, this Court has consistently held that States participating in the AFDC program must make assistance available to all persons who meet the criteria of 406 (a) of the Act. Carleson v. Remillard, 406 U.S. 598 ; Townsend v. Swank, 404 U.S. 282 . See also Lewis v. Martin, 397 U.S. 552 . The statutory foundation for this conclusion is 402 (a) (10), which requires that a State's "plan for aid and services to needy families with children" must provide that "aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. 602 (a) (10). [436 U.S. 725, 741] </s> The question to be decided is whether these interpretive principles are to be applied to the EA program as well. </s> A </s> The short answer is that, since 402 (a) (10) on its face applies only to "aid to families with dependent children" and not to the separately designated program of "emergency aid to needy families with children," it cannot be the basis for making the 406 (e) eligibility requirements mandatory on the States. </s> The Court of Appeals recognized that 402 (a) (10) was limited by its language to AFDC, but nevertheless concluded that Congress intended to treat EA "in the same way" because it is "part of the same statutory scheme," and rooted in the "same Congressional concern with [the] deprivation of children that brought forth the AFDC program . . . ." Mandley I, 523 F.2d, at 422. But Congress' choice of precise language in this complex statute cannot be glossed over with such generalities. </s> The 402 "state plan for aid and services to needy families with children" is the central, organizing element of the Title IV-A program. A State's plan establishes both its funding relationship with the Federal Government and the substantive terms of all Title IV-A programs in which it has elected to participate. Thus, the plan reflects not only the basic AFDC program of cash assistance defined in 406 (b), but also Title XX social services, see 402 (a) (15) and 42 U.S.C. 1397 et seq. (1970 ed., Supp. V), and, if the State chooses to adopt them, the optional programs of EA, defined in 406 (e), and AFDC-Unemployed Fathers (AFDC-UF), established by 407. </s> Section 402 (a) lists some 20 specific requirements for which a state plan "must provide." Some clearly apply to the plan as a whole. These generally concern program administration. E. g., 402 (a) (1) ("provide that it shall be in effect in all [436 U.S. 725, 742] political subdivisions of the State"); 402 (a) (5) ("provide . . . such methods of administration . . . as are found by the Secretary to be necessary [and] proper . . ."); 402 (a) (9) ("provide safeguards which restrict the use or disclosure of information concerning applicants or recipients . . ."). Others, like 402 (a) (10), refer specifically to "aid to families with dependent children." E. g., 402 (a) (7) ("provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children"); 402 (a) (11) ("provide for prompt notice . . . to the State child support collection agency . . . of the furnishing of aid to families with dependent children with respect to a child who has been deserted or abandoned . . ."). </s> The term "aid to families with dependent children" is given a very specific meaning in 406 (b) - and "emergency assistance to needy families with children" as defined in 406 (e) means, as we have observed, something quite different. It is true that both the EA and AFDC programs must be reflected in a State's 402 plan, and both will be governed by those parts of 402 that apply to the plan as a whole. But there is no basis for assuming that, when 402 refers specifically to AFDC, those references are either meaningless or inadvertent. On the contrary, there is every reason to suppose that the exclusion of EA from specific substantive requirements of 402, in particular 402 (a) (10)'s imposition of mandatory eligibility standards, was deliberate, since the absence of mandatory eligibility standards is wholly consistent with the nature and purpose of the EA program. </s> B </s> The EA program was adopted by means of an amendment to 406 defining the new term "emergency assistance to needy families with children." Pub. L. 90-248, 206 (b), 81 Stat. 893. But nowhere in the EA statute is there a [436 U.S. 725, 743] precise definition of eligibility comparable to the terms that have been held mandatory in AFDC. As to the latter, the term "aid to families with dependent children" is defined in 406 (b) as "money payments . . . in behalf of [a] dependent child . . . ." The term "dependent child" is separately defined in 406 (a) as a needy child who has been deprived of parental support, is living with specified relatives, and is either under the age of 18 or under the age of 21 and regularly attending school. It is this very specific definition of "dependent child" in 406 (a) that has been held to be mandatory upon the States in King v. Smith, 392 U.S. 309 ("deprived of parental support"), Carleson v. Remillard, 406 U.S. 598 ("continued absence from the home"), and Townsend v. Swank, 404 U.S. 282 ("regularly attending a school"). </s> On the other hand, the term "emergency assistance to needy families with children" is defined in 406 (e) as payments and services furnished "in the case of a needy child" who meets certain requirements and is facing destitution. The structure of this statutory provision thus parallels 406 (b) - i. e., while it describes eligible persons, it is in terms a definition of the program for which federal funding is available. But in the EA program there is no separate provision, parallel to 406 (a), that defines the terms used to describe eligible persons. 18 There is no statutory language, therefore, that can reasonably be understood as imposing uniform standards of eligibility on every state EA program. 19 </s> [436 U.S. 725, 744] </s> The conclusion that Congress in fact intended to treat EA and AFDC quite differently is fully consistent with its purposes in enacting the EA program. Unlike the basic AFDC program and the optional AFDC-UF extension, EA is not a comprehensive system of income maintenance, but rather a program designed to allow quick, ad hoc responses to immediate needs. Indeed one of the primary purposes of making EA available to persons not receiving or eligible for AFDC was to "encourag[e] the States to move quickly in family crises, supplying the family promptly with appropriate services," in the hope that this "would in many cases preclude the necessity for the family having to go on [AFDC] assistance on a more or less permanent basis." 113 Cong. Rec. 23054 (1967) (remarks of Cong. Mills). This purpose reflects not only an awareness of the distinct difference between AFDC and EA, but also an understanding that EA would not be surrounded with all of the trappings that 402 requires of the ongoing AFDC cash-payments program. In short, EA was designed "to assure needed care for children, to focus maximum effort on self-support by families, and to provide more flexible and appropriate tools to accomplish these objectives." S. Rep. No. 744, 90th Cong., 1st Sess., 165 (1967). (Emphasis supplied.) [436 U.S. 725, 745] </s> As a matter of historical fact, Congress has always left the States broad discretion in shaping the programs that, like EA, authorize assistance to persons not eligible for AFDC in the hope of preventing lasting welfare dependency. Under the former 406 (d) family services program 20 the States had "considerable latitude in providing services to nonwelfare recipients on the grounds that they [were] `former or potential' recipients." S. Rep. No. 93-1356, p. 9 (1974). And the declared purpose of the new Title XX social services program enacted in 1975, 42 U.S.C. 1397 et seq. (1970 ed., Supp. V), was to "encourag[e] each State, as far as practicable under the conditions in that State, to furnish services directed at the goal of . . . achieving or maintaining economic self-support to prevent, reduce, or eliminate dependency. . . ." 42 U.S.C. 1397 (1970 ed., Supp. V). (Emphasis supplied.) The legislative history of that statutory program reflects Congress' awareness that the very magnitude of its purpose would require that "the States . . . have the ultimate decision-making authority in fashioning their own social service programs within the limits of funding established by Congress." S. Rep. No. 93-1356, supra, at 6. 21 </s> By the same token, the very breadth of the potential reach of EA - to virtually any family with needy children of a [436 U.S. 725, 746] certain age that faces a risk of destitution - argues against the inference that Congress intended to require participating States to extend aid to all who were potentially eligible under 406 (e). A literal application of all of the 406 (e) standards, as required by the Court of Appeals' proposed order, would create an entirely open-ended program, not susceptible of meaningful fiscal or programmatic control by the States. </s> The Court of Appeals believed that under its interpretation of the Act Illinois would retain "substantial control" of its program through its ability to limit the amount of assistance actually paid: </s> "It will be able to choose the level of benefits that it will provide and to set the standard of need. It may reasonably limit the amounts paid out in emergency assistance, Dandridge v. Williams, 397 U.S. 471 , . . . but it will not be able to declare ineligible those who come within the federal definition of eligibility in [ 406 (e)] . . . . This need not result in additional expense to the state but with existing appropriations should at least result in helping a broader number of persons, although more moderately than at present." Mandley I, 523 F.2d, at 422-423. </s> But this application of the distinction drawn in the AFDC cases between eligibility criteria and financial need standards, see supra, at 740, fundamentally misconceives the purpose of the EA program. A family that is facing destitution because its home has burned down is not helped at all by a "moderate" grant insufficient to see it through the crisis. As the Illinois Director of the Department of Public Aid stated in his report to the Legislative Advisory Committee on Public Aid, the decision in Mandley I created an untenable tension between fiscal and programmatic integrity in the EA system: </s> "But even if the Department could so limit [expenditures as suggested by the Court of Appeals] the results would be to divide a limited amount of Emergency Assistance [436 U.S. 725, 747] money among a very expanded group of individuals, thus reducing the amount of assistance paid in each individual case to a meaninglessly small amount. The agency is thus faced with the prospect, if it continues the program, of potentially unlimited financial expenses, if it meets actual need in Emergency Assistance payments, or the payment of meaninglessly small amounts (and the possibility of legal challenge and subsequent mandatory order of additional financial payments)." </s> The intent of Congress in enacting EA thus would not be furthered by a statutory interpretation that requires a State to meet less than what it believes is the actual emergency need of an eligible family in order to retain financial control of its program. On the other hand, that intent will be effectuated by the natural reading we give to the relevant statutory provisions. Neither 402 (a) (10), which makes AFDC eligibility criteria mandatory, nor 406 (e), which defines the permissible scope of an EA program for purposes of federal funding, imposes mandatory eligibility standards on States that elect to participate in the EA program. </s> For the foregoing reasons the judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. 22 </s> It is so ordered. </s> MR. JUSTICE BLACKMUN took no part in the consideration or decision of these cases. </s> Footnotes [Footnote 1 The AFDC program is established and defined in several related provisions of Title IV-A of the Social Security Act. Section 406 (b) of the Act, as set forth in 42 U.S.C. 606 (b), provides in pertinent part: "The term `aid to families with dependent children' means money payments with respect to, or . . . medical care in behalf of or any type of remedial care recognized under State law in behalf of a dependent child . . . ." The term "dependent child" is defined in 406 (a), 42 U.S.C. 606 (a), as </s> "a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with [specified relatives] in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school . . . [or] course of vocational or technical training . . . ." </s> [Footnote 2 Section 406 (e) of the Act, as set forth in 42 U.S.C. 606 (e), provides in pertinent part: </s> "(1) The term `emergency assistance to needy families with children' means any of the following, furnished for a period not in excess of 30 days in any 12-month period, in the case of a needy child under the age of 21 who is . . . living with any of the relatives specified in subsection (a) (1) . . . but only where such child is without available resources, the payments, care, or services involved as necessary to avoid destitution of such child or to provide living arrangements in a home for such child, and such destitution . . . did not arise because such child or relative refused without good cause to accept employment or training for employment - </s> "(A) money payments, payments in kind, or such other payments as the State agency may specify . . . or medical care or any other type of remedial care recognized under State law on behalf of, such child or any other member of the household in which he is living, and </s> "(B) such services as may be specified by the Secretary; </s> "but only with respect to a State whose State plan approved under section 602 of this title includes provision for such assistance. </s> "(2) Emergency assistance as authorized under paragraph (1) may be [436 U.S. 725, 728] provided . . . to migrant workers with families in the State or in such part or parts thereof as the State shall designate." </s> [Footnote 3 The complaint also alleged that the Illinois program violated the Equal Protection Clause of the Fourteenth Amendment and the Illinois Public Aid Code. </s> While none of the defendants questioned the District Court's subject-matter jurisdiction, the Court of Appeals properly considered the [436 U.S. 725, 730] question sua sponte. It held that the District Court had jurisdiction of claims against the state defendants under 28 U.S.C. 1343 and 42 U.S.C. 1983 since the plaintiffs' constitutional claims were not insubstantial. Mandley v. Trainor, 523 F.2d 415, 419 n. 2 (Mandley I). </s> It found the question of jurisdiction over the federal defendants more troublesome, ibid. We express no view as to the Court of Appeals' theory of jurisdiction in light of the intervening amendment of 28 U.S.C. 1331, which, by eliminating the requirement of $10,000 in controversy in any action "against the United States, any agency thereof, or any officer or employee thereof in his official capacity," 28 U.S.C. 1331 (a) (1976 ed.), clearly confers jurisdiction over the federal defendants in these cases. Andrus v. Charlestone Stone Products Co., ante, at 607-608, n. 6. </s> [Footnote 4 As stated in the order, any child: </s> "(i) who is under the age of 21, </s> "(ii) who is living with any of the relatives specified in 406 (a) (1) of the Act in a place of residence maintained by such relative as a home, </s> "(iii) where such child is without available resources, </s> "(iv) where emergency assistance is necessary to avoid destitution of or to provide living arrangements in a home for such child, and </s> "(v) such destitution did not arise because such child or relative refused without good cause to accept employment or training for employment." </s> [Footnote 5 The order would further require HEW to "file with the court proposed regulations governing emergency assistance, which proposed regulations shall be in accord with the opinion of the Court of Appeals, with this order and with 45 CFR 233.10 (a) (1) (ii) (A)." </s> The plaintiffs' originally proposed order would have specifically required that the regulations "include, inter alia, definitions of such terms as `necessary to avoid destitution' and `lack of available resources' which are compatible with providing emergency assistance when a needy child is approaching destitution." While the Court of Appeals thought "it would be salutary to include such definitions in the new regulation," it declined to "order HEW specifically to include any items in its new regulation." 545 F.2d, at 1073. </s> [Footnote 6 The petitioners have not raised in this Court the claim that the validity of the proposed AFDC special-needs program was beyond the scope of the pleadings in this case. </s> [Footnote 7 We agree with the Court of Appeals that the cases were not rendered moot by Illinois' decision to withdraw from the 406 (e) program. For even if the proposed arrangement is entirely legal under 402 and 403 (a) (1), the State's decision to withdraw voluntarily from the 406 (e) program in no way mooted the Court of Appeals' prior determination that that program was being operated in violation of federal law. See United States v. W. T. Grant Co., 345 U.S. 629 . </s> By granting the defendant's motions to dismiss, as it was bound to do if the case was indeed moot, the District Court rendered the entire proceeding a nullity. There was no longer any judgment binding on the defendants to prevent them from returning to the old program. And, while the defendants' good-faith representation that they had no intention [436 U.S. 725, 734] of doing so might properly have led the District Court to deny injunctive relief, see Hecht Co. v. Bowles, 321 U.S. 321 , it could not operate to deprive the successful plaintiffs, and indeed the public, of a final and binding determination of the legality of the old practice. United States v. W. T. Grant Co., supra, at 632. </s> Since the Court of Appeals correctly concluded that the District Court had erred in dismissing the case as moot, the controversy was still alive as to the legality of both the old EA program and the proposed AFDC special-needs program. We note that, in a status report to the Illinois Advisory Committee on Public Aid, the State's Director of the Department of Public Aid stated that he intended to request that "HEW clarify its [ 406 (e)] Emergency Assistance Program [since] there are aspects of a [ 406 (e)] program that we feel superior to a special need program and we would prefer, if so allowed, to maintain the [ 406 (e)] Emergency Assistance Program of the present scope." (This status report was filed in the District Court as Exhibit 1 to Plaintiffs' Answer to Defendants' Motions to Dismiss.) Thus while the Court of Appeals had already passed on the legality of the Illinois EA program in Mandley I, there was no jurisdictional bar to its directing entry of a judgment on remand from Mandley II resolving the entire dispute by enjoining the operation of both programs. </s> [Footnote 8 The record does not contain an actual proposal for the contemplated special-needs program, since Illinois had not at the time of the Court of Appeals' decision drafted or submitted such a plan to HEW for approval. The court assumed, and the parties agreed, that the program would parallel the old EA program: i. e., it would cover emergencies in AFDC families arising out of the actual or threatened loss of shelter due to damage or eviction and the immediate needs of presumptively eligible AFDC applicants. </s> [Footnote 9 "For the first time, the Federal Government will match money for emergency assistance. This has not been in the law before. For a period of 30 days, emergency assistance can be paid in cases where they cannot meet other qualifications." 113 Cong. Rec. 36319 (1967) (remarks of Sen. Curtis). (Emphasis supplied.) See also S. Rep. No. 744, 90th Cong., 1st Sess., 166 (1967). </s> [Footnote 10 Even if their import were clearer, as an expression of Congress' understanding as to the scope of the pre-existing AFDC statute, such post hoc observations by a single member of Congress carry little if any weight. See Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 714 . </s> [Footnote 11 The States have a "great deal of discretion" in setting the standard of need, and "some States include in their `standard of need' items that others do not take into account." Rosado v. Wyman, 397 U.S. 397, 408 . </s> [Footnote 12 U.S. Dept. of HEW, Handbook of Public Assistance Administration, Part IV, 3131 (3) (1966). Current regulations provide that "[i]f the State agency includes special need items in its standard [the state plan must] (a) describe those that will be recognized, and the circumstances under which they will be included, and (b) provide that they will be considered in the need determination for all applicants and recipients requiring them." 45 CFR 233.20 (a) (2) (v) (1977). </s> [Footnote 13 Illinois and Minnesota. AFDC Survey 59, 100. </s> [Footnote 14 Arizona, Connecticut, Guam, Iowa, Kansas, Minnesota, New Hampshire, and South Dakota. Id., at 11, 27, 46, 69, 73, 100, 125, 179. </s> [Footnote 15 California's plan provided for "replacement of clothing and certain household items because of sudden or unusual circumstances beyond [the] control of [the] family." Id., at 19. Connecticut, North Dakota, and Rhode Island covered needs arising out of "catastrophic" events as special-circumstance items. Id., at 27, 147, 171. </s> [Footnote 16 The original plan actually invalidated in Mandley I narrowed EA eligibility by limiting it to persons also eligible (or presumptively eligible) for AFDC, and by recognizing as circumstances of emergency need [436 U.S. 725, 740] only an AFDC recipient's loss of shelter due to damage or eviction, and an AFDC applicant's immediate need for household effects. Other States, however, have imposed different kinds of restrictions on EA eligibility. Some, for example, exclude AFDC recipients if the emergency need is one theoretically covered by the basic assistance grant, reasoning that the State should not pay double benefits when recipients have failed to budget their resources properly. See generally Note, Meeting Short-Term Needs of Poor Families: Emergency Assistance for Needy Families with Children, 60 Cornell L. Rev. 879, 888-892 (1975). </s> The injunction ordered by the Court of Appeals in Mandley II apparently reaches all such limitations. It requires Illinois, so long as it receives any funds under Title IV-A and operates an emergency aid program, to provide assistance to all persons who fit the federal description of eligible individuals, and it prohibits HEW from "approving state plans for emergency assistance which limit eligibility more narrowly than 406 (e)." </s> [Footnote 17 By controlling these two elements, which determine actual payments under the program, every State retains the ability to control its total AFDC expenditures. Cf. Jefferson v. Hackney, 406 U.S., at 539 -541. </s> [Footnote 18 By contrast, the other optional Title IV-A program, AFDC-UF, is defined by reference to the key statutory term "dependent child." 407 (a), 42 U.S.C. 607 (a). This indicates that when Congress intended that a separate program should be treated "in the same way" as AFDC, it was able to express that intent clearly by actually incorporating the identical terms. </s> [Footnote 19 The Court of Appeals thought that "the problem of setting workable definitions for the somewhat amorphous eligibility criteria in [ 406 (e) could] be addressed by HEW rule-making," Mandley I, 523 F.2d, at 422-423, and indeed required such rulemaking in its Mandley II order. See [436 U.S. 725, 744] n. 5, supra. The statute does not, however, require the Secretary to promulgate implementing regulations to clarify the scope of 406 (e). Compare 406 (e) with 407 (a) (AFDC-UF). Cf. Batterton v. Francis, 432 U.S. 416 . And the regulations in fact adopted by the Secretary interpret the statute as leaving the States with broad discretion as to EA eligibility requirements. 45 CFR 233.120 (1977). The Secretary's contemporaneous interpretation of the statute is entitled to considerable deference. New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421 . In the absence of an express delegation of authority to the Secretary, there is simply no basis for assuming that Congress intended that he, rather than the States, must make definite - and mandatory - the generalized standards of eligibility it wrote into the EA statute. Cf. n. 21, infra. </s> [Footnote 20 Section 406 (d) of the Act, as set forth in 42 U.S.C. 606 (d), defined "family services" as "services to a family or any member thereof for the purpose of preserving, rehabilitating, reuniting, or strengthening the family, and such other services as will assist members of a family to attain or retain capability for the maximum self-support and personal independence." Section 406 (d) has been repealed and replaced by the new Title XX Social Services program. Pub. L. 93-647, 2, 3 (a) (5), 88 Stat. 2337, 2348. See 42 U.S.C. 1397 et seq. (1970 ed., Supp. V). </s> [Footnote 21 This conclusion was based on the "lengthy history of legislative and regulatory action in the social service area [which] made it clear . . . that the Department of Health, Education, and Welfare can neither mandate meaningful programs nor impose effective controls upon the States." S. Rep. No. 93-1356, at 6. </s> [Footnote 22 The Court of Appeals did not reach the respondents' constitutional and state-law claims, see n. 3, supra. They remain open for consideration on remand. </s> [436 U.S. 725, 748]

United States Supreme Court CLAYTON CHEMICAL v. UNITED STATES(1966) No. 890 Argued: Decided: March 28, 1966 </s> The Customs Court held that petitioner was entitled to reappraisal of the value of its imported product. The Court of Customs and Patent Appeals reversed the judgment for petitioner. It held that affidavits of petitioner's customers, on the basis of which petitioner sought to obtain reappraisal, had been improperly admitted by the Customs Court, and that there was no substantial evidence to support petitioner's claim, the affidavits being excluded from consideration. On petition for rehearing petitioner asked the Court of Customs and Patent Appeals to remand the case to the Customs Court to enable petitioner to offer evidence to cure the deficiency created by exclusion of the affidavits. The petition for rehearing was denied. Held: The Court of Customs and Patent Appeals erred in failing to remand for further proceedings. </s> Certiorari granted; 52 C. C. P. A. (Cust.) 111, 357 F.2d 1009, reversed and remanded. </s> John Joseph McDermott and John D. Rode for petitioner. </s> Solicitor General Marshall for the United States. </s> Joseph Schwartz for the Association of the Customs Bar, New York, N. Y., as amicus curiae, in support of the petition. </s> PER CURIAM. </s> Petitioner brought a proceeding before a single judge of the Customs Court to reappraise the United States value of a product which it imported. The appraiser had relied upon the prices at which petitioner sold the product to establish its value for assessment of import duties. Petitioner offered in evidence certain affidavits to show that most of its sales of the product were for [383 U.S. 821, 822] experimental purposes and in experimental quantities, and hence were not relevant to show "the price at which such . . . imported merchandise is freely offered for sale . . . in the principal market of the United States to all purchasers . . . in the usual wholesale quantities and in the ordinary course of trade . . . ." Act of June 17, 1930, c. 497, 402 (e), 46 Stat. 708, as amended, 19 U.S.C. 1402 (e) (1964 ed.). Cf. United States v. H. Muehlstein & Co., 42 Cust. Ct. 760 (1959). </s> Over objection of the United States that the affidavits were not admissible, the judge received them in evidence. The ground for admission of the affidavits was 28 U.S.C. 2633 (1964 ed.), which provides that in reappraisement proceedings, "affidavits and depositions of persons whose attendance cannot reasonably be had . . . may be admitted in evidence." Relying on the affidavits, the single judge found that most of petitioner's sales were for experimental purposes. 49 Cust. Ct. 409 (1962). </s> On appeal by the United States from a reappraisal favorable to petitioner, the Appellate Term of the Second Division of the Customs Court held that the United States had not preserved its objection to the admissibility of the affidavits. 52 Cust. Ct. 620 (1964). The United States appealed to the Court of Customs and Patent Appeals. That court reversed the determination that the United States had not preserved its objection. It held that the affidavits were not admissible because petitioner had not shown that the attendance of the affiants could not reasonably be had, and agreed with the position of the United States that "with exclusion of the affidavits there is no substantial competent evidence of record to rebut the statutory presumption that the United States value of the imported merchandise was the value found by the appraiser." 52 C. C. P. A. (Cust.) 111, 120, 357 F.2d 1009, 1016 (1965). The judgment of the Customs Court was accordingly reversed, [383 U.S. 821, 823] Judges Smith and Rich dissenting. On petition for rehearing, petitioner contended that if the affidavits were inadmissible, it was entitled to a remand to the Customs Court to enable it to fill the evidentiary void created by the holding that the affidavits were inadmissible. The petition was denied without opinion, Judges Smith and Rich again dissenting. Because we conclude that petitioner should have an opportunity to establish its contentions by other types of evidence that may be available to it, we grant a writ of certiorari and reverse. </s> The Solicitor General suggests that the Court of Customs and Patent Appeals may have deemed the affidavits and any evidence of experimental use that petitioner might present on remand, irrelevant to the question of United States value. The court did not so hold, and the tenor of its opinion is to the contrary. The Solicitor General also asserts that petitioner should have requested a remand prior to its petition for rehearing. As appellee in the Court of Customs and Patent Appeals, petitioner had no reason to anticipate that if the United States prevailed on the admissibility of the affidavits the court would nonetheless proceed to consider the merits of the reappraisal claim without affording petitioner an opportunity to present oral testimony in lieu of the excluded affidavits. We hold that the Court of Customs and Patent Appeals erred in refusing to remand the case to the Customs Court for further proceedings. Cf. Ford Motor Co. v. Labor Board, 305 U.S. 364, 373 ; Standard-Vacuum Oil Co. v. United States, 339 U.S. 157 . Compare American Propeller & Mfg. Co. v. United States, 300 U.S. 475 . </s> Reversed and remanded. </s> [383 U.S. 821, 824]

United States Supreme Court WINDWARD SHIPPING v. AMERICAN RADIO ASSN.(1974) No. 72-1061 Argued: Decided: February 19, 1974 </s> Petitioners, foreign-flag shipowners and agents, sought injunctive relief in the Texas state courts to bar, as tortious under Texas law, the picketing of their vessels by respondent unions, which were protesting as substandard the wages paid to the foreign crewmen, who manned the vessels. The trial court sustained respondents' contention that state-court jurisdiction was pre-empted by the Labor Management Relations Act (LMRA), and the appellate court affirmed. Held: Respondents' activities, which did not involve wages paid within this country but were designed to force the foreign vessels to raise their operating costs to levels comparable to those of American shippers, would have materially affected the foreign ships' "maritime operations" and precipitated responses by the foreign shipowners in the field of international relations transcending the domestic wage-cost decision that the LMRA was designed to regulate. Respondents' picketing was consequently not activity "affecting commerce" as defined in 2 (6) and (7) of the National Labor Relations Act, as amended by the LMRA, and the Texas courts erred in holding that they were prevented by the LMRA from entertaining petitioners' injunction suit. Benz v. Compania Naviera Hidalgo, 353 U.S. 138 , followed; Longshoremen v. Ariadne Co., 397 U.S. 195 , distinguished. Pp. 109-116. </s> 482 S. W. 2d 675, reversed. </s> REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, STEWART, BLACKMUN, and POWELL, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 116. [415 U.S. 104, 105] </s> Robert S. Ogden, Jr., argued the cause for petitioners. With him on the briefs were James V. Hayes and Joseph E. Fortenberry. </s> Howard Schulman argued the cause for respondents. With him on the brief was W. Arthur Combs. * </s> [Footnote * Briefs of amici curiae urging reversal were filed by Solicitor General Bork and Allan A. Tuttle for the United States; by Frank L. Wiswall, Jr., for the Republic of Liberia; by Bryan F. Williams, Jr., for the West Gulf Maritime Assn., Inc.; and by Frank McRight for the Mobile Steamship Assn. </s> J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. </s> MR. JUSTICE REHNQUIST delivered the opinion of the Court. </s> Petitioners are the owners and managing agents of two ships which are registered under the laws of Liberia and fly the Liberian flag. They sought injunctive relief in the state courts in Texas to bar picketing of their vessels by respondent unions. The trial court denied relief, finding that the dispute was "arguably" within the jurisdiction of the National Labor Relations Board and that the jurisdiction of the state courts was therefore pre-empted. The Texas Court of Civil Appeals affirmed, 1 and we granted certiorari, 412 U.S. 927 (1973), to consider whether the activities here complained of were activities "affecting commerce" within the meaning of 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 450, 29 U.S.C. 152 (6) and (7). 2 We hold that they were [415 U.S. 104, 106] not, and therefore reverse the judgment of the Court of Civil Appeals. </s> I </s> The vessels Northwind and Theomana are ships of Liberian registry, carrying cargo between foreign ports and the United States. Northwindis owned by petitioner Westwind Africa Line, Ltd., a Liberian corporation, while Theomana is owned by petitioner SPS Bulkcarriers Corp., a Liberian corporation, and managed by petitioner Windward Shipping (London) Ltd., a British corporation. The crews of both vessels are composed entirely of foreign nationals, represented by foreign unions and employed under foreign articles of agreement. </s> Respondents are American maritime unions, apparently representing a substantial majority of American merchant seamen. 3 Alarmed by an accelerating decline in the number of jobs available to their members, these unions agreed to undertake collective action against foreign vessels, which they saw as the major cause of their business recession. Specifically, these unions agreed to picket foreign ships, calling attention to the competitive advantage enjoyed by such vessels because of a difference [415 U.S. 104, 107] between foreign and domestic seamen's wages. All parties concede that such a difference does exist. 4 </s> The picketing here occurred at the Port of Houston, Texas, in October 1971. Both Northwind and Theomana were docked within the port, and respondents established picket lines in front of each vessel. There were four pickets assigned to each vessel, carrying signs which read: </s> "ATTENTION TO THE PUBLIC THE WAGES AND BENEFITS PAID SEAMEN ABOARD THE VESSEL THEOMANA [NORTHWIND] ARE SUBSTANDARD TO THOSE OF AMERICAN SEAMEN. THIS RESULTS IN EXTREME DAMAGE TO OUR WAGE STANDARDS AND LOSS OF OUR JOBS. PLEASE DO NOT PATRONIZE THIS VESSEL. HELP THE AMERICAN SEAMEN. WE HAVE NO DISPUTE WITH ANY OTHER VESSEL ON THIS SITE." </s> [Printed names of the six unions.] </s> These signs were supplemented by pamphlets of similar import. 5 The pickets were instructed not to [415 U.S. 104, 108] discuss the picketing with anyone, and they appear to have followed their instructions. </s> The picketing, although neither obstructive nor violent, was not without effect. Longshoremen and other port workers refused to cross the picket lines to load and unload petitioners' vessels. Petitioners filed separate suits in a Texas state court, asking the court to enjoin the picketing as tortious under Texas law. The primary basis for petitioners' claim was that the picketing sought to induce the owners and crews to break pre-existing contracts. Respondents presented several defenses, contending in particular that the jurisdiction of the Texas court was pre-empted by the National Labor Relations Act. 6 </s> The trial court sustained this contention, holding that jurisdiction properly lay with the NLRB, and the Texas Court of Civil Appeals affirmed. That court found that state jurisdiction was pre-empted by the Act when "the activities complained of are arguably either protected by section 7 or prohibited by section 8 of the NLRA as amended by the LMRA," 7 see San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), and that the conduct here met that test. The court rejected petitioners' argument that the picketing interfered with the "maritime operations of foreign-flag [415 U.S. 104, 109] ships," see McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), in such manner as to remove it from the Board's jurisdiction. 8 The court concluded: </s> "If [the picketing] but voices a complaint as to foreign wages and urges the public not to patronize foreign vessels it does not engage in matters outside of commerce. It is peaceful picketing, publicizing a labor dispute, of such a character that its validity is suggested by the Court's holding in the Marine Cooks case, supra. It is, at least arguably, a protected activity under section 7 of the LMRA. As such, it is an activity as to which the exclusive jurisdiction to determine its propriety has been preempted to the NLRB." 9 </s> Petitioners contend that the Court of Appeals too narrowly construed this Court's decisions denying the NLRB jurisdiction in cases involving foreign-flag ships. We therefore begin by examining the principles established by those decisions for determining the jurisdiction of the NLRB. </s> II </s> In a series of cases decided over the past 17 years, 10 this Court has discussed the application of the Labor Management Relations Act in situations which might be broadly described as disputes between unions representing workers in this country and owners of foreignflag vessels operating in international maritime commerce. Benz v. Compania Naviera Hidalgo, 353 U.S. 138 (1957), is the leading case on the subject. In Benz [415 U.S. 104, 110] the question was whether the Labor Management Relations Act, 1947, precluded a diversity suit for damages brought in the United States District Court by foreign shipowners against picketing American unions. The picketing had been undertaken in Portland, Oregon, to support striking foreign crews employed under foreign articles and had resulted in the refusal of workers to load and repair the docked foreign ships. The District Court had awarded damages and the Court of Appeals affirmed. </s> This Court held that the shipowners' action was not pre-empted by the Labor Management Relations Act. Studying the legislative history of the Act, the Court found no indication that it was intended to govern disputes between foreign shipowners and foreign crews. On the contrary, the Court concluded that the most revealing legislative history strongly suggested the bill was a "bill of rights . . . for American workingmen and for their employers." Id., at 144. (Emphasis in original.) The Court stated that this history "inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions." Ibid. </s> Recognition of the clear congressional purpose to apply the LMRA only to American workers and employers was doubtless a sufficient reason to place the picketing in Benz outside the Act. But the Court in that case made clear its reluctance to intrude domestic labor law willynilly into the complex of considerations affecting foreign trade, absent a clear congressional mandate to do so: </s> "For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the [415 U.S. 104, 111] possibilities of international discord are so evident and retaliative action so certain." Id., at 147. </s> In the 17 years since Benz was decided, Congress has in no way indicated any such "affirmative intention," and this Court has continued to construe the LMRA in accordance with the dictates of that case. </s> The reasoning of Benz was reaffirmed in McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), and Incres S. S. Co. v. Maritime Workers, 372 U.S. 24 (1963), decided together six years later. In McCulloch, we held that the National Labor Relations Board had improperly assumed jurisdiction under the Act to order an election involving foreign crews of foreign-flag ships. Rejecting the Board's "balancing of contacts" theory, the Court said: </s> "[T]o follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports." 372 U.S., at 19 . 11 </s> In Incres we applied this rationale to a situation involving union picketing of a foreign ship in an effort to organize the foreign crew. Reversing the holding of a New York state court that the picketing was arguably within the jurisdiction of the NLRB, the Court said: </s> "The Board's jurisdiction to prevent unfair labor practices, like its jurisdiction to direct elections, is based upon circumstances `affecting commerce,' and we have concluded that maritime operations of foreign-flag ships employing alien seamen are not in `commerce' within the meaning of 2 (6), 29 U.S.C. 152 (6)." 372 U.S., at 27 . [415 U.S. 104, 112] </s> But Benz and its successor cases have not been read to exempt all organizational activities from the Act's protections merely because those activities in some way were directed at an employer who was the owner of a foreign-flag vessel docked in an American port. In Longshoremen v. Ariadne Co., 397 U.S. 195 (1970), the Court held that the picketing of foreign ships to protest substandard wages paid by their owners to nonunion American longshoremen was "in `commerce' within the meaning of 2 (6), and thus might have been subject to the regulatory power of the National Labor Relations Board." Id., at 200. The pickets in Ariadne, unlike the pickets in Benz or Incres, were primarily engaged in a dispute as to whether an employer should hire unionized or nonunionized American workers to perform longshoremen's work, 12 and the substandard wages which they were protesting were being paid to fellow American workers. The Court specifically noted: "[T]his dispute centered on the wages to be paid American residents." Id., at 199. </s> The term "in commerce," as used in the LMRA, is obviously not self-defining, and certainly the activities in Benz, McCulloch, and Incres, held not covered by the Act, were literally just as much "in commerce" as were the activities held covered in Ariadne. Those cases which deny jurisdiction to the NLRB recognize that Congress, when it used the words "in commerce" in the LMRA, simply did not intend that Act to erase longstanding [415 U.S. 104, 113] principles of comity and accommodation in international maritime trade. In Lauritzen v. Larsen, 345 U.S. 571, 577 (1953), the Court commented on the congressional intent with respect to the Jones Act of 1920 in these words: </s> "But Congress in 1920 wrote these all-comprehending words, not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations." 13 </s> We are even more reluctant to attribute to Congress an intention to disrupt this comprehensive body of law by construction of an Act unrelated to maritime commerce and directed solely at American labor relations. </s> III </s> The picketing activities in this case do not involve the inescapable intrusion into the affairs of foreign ships that was present in Benz and Incres; respondents seek [415 U.S. 104, 114] neither to organize the foreign crews for purpose of representation nor to support foreign crews in their own wage dispute with a foreign shipowner. But those cases do not purport to fully delineate the threshold of interference with the maritime operations of foreign vessels which makes the LMRA inapplicable. </s> The picket signs utilized at the docks where the Northwind and Theomana were tied up protested the wages paid to foreign seamen who were employed by foreign shipowners under contracts made outside the United States. At the very least, the pickets must have hoped to exert sufficient pressure so that foreign vessels would be forced to raise their operating costs to levels comparable to those of American shippers, either because of lost cargo resulting from the longshoremen's refusal to load or unload the vessels, or because of wage increases awarded as a virtual self-imposed tariff to regain entry to American ports. Such a large-scale increase in operating costs would have more than a negligible impact on the "maritime operations" of these foreign ships, and the effect would be by no means limited to costs incurred while in American ports. Unlike Ariadne, the protest here could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country. </s> In this situation, the foreign vessels' lot is not a happy one. A decision by the foreign owners to raise foreign seamen's wages to a level mollifying the American pickets would have the most significant and far-reaching effect on the maritime operations of these ships throughout the world. A decision to boycott American ports in order to avoid the difficulties induced by the picketing would be detrimental not only to the private balance sheets of the foreign shipowners but to the citizenry of a country as dependent on goods carried in foreign bottoms as is ours. Retaliatory action against American vessels in [415 U.S. 104, 115] foreign ports might likewise be considered, but the employment of such tactics would probably exacerbate and broaden the present dispute. Virtually none of the predictable responses of a foreign shipowner to picketing of this type, therefore, would be limited to the sort of wage-cost decision benefiting American workingmen which the LMRA was designed to regulate. This case, therefore, falls under Benz rather than under Ariadne. 14 </s> Since we hold that respondents' picketing was not "in commerce" as defined by the Act, we do not reach the question of whether the activity was otherwise of such a nature that state courts would be precluded by the LMRA from entertaining an action to enjoin it. Our conclusion that the activities here involved were not "in commerce" within the meaning of 2 (6) and (7) of the NLRA, as amended by the LMRA, resolves a question which, of course, is one for the courts in the first instance. Ariadne, 397 U.S., at 200 . The Court of Civil Appeals was therefore wrong in holding that the courts of the [415 U.S. 104, 116] State of Texas were prevented by the LMRA from entertaining petitioners' suit for an injunction. </s> Reversed. </s> Footnotes [Footnote 1 482 S. W. 2d 675 (1972). </s> [Footnote 2 The definitions in 2 (6) and (7), 29 U.S.C. 152 (6) and (7), as amended by the Labor Management Relations Act, 1947, are as follows: </s> "(6) The term `commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United [415 U.S. 104, 106] States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country. </s> "(7) The term `affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." </s> [Footnote 3 Respondents describe themselves in their brief as "six labor organizations who collectively represent the overwhelming majority and practically almost all American merchant seamen." Brief for Respondents 2. </s> [Footnote 4 The petitioners state: </s> "We do not contest the fact that the wages of foreign crews on foreign ships are substantially lower than those paid to American seamen on American ships." Brief for Petitioners 19. </s> The brief notes some estimates that the American wage costs are between 2 1/2 to 4 times higher than the foreign wage costs. Id., at 19 n. </s> [Footnote 5 These pamphlets stated: </s> "To the Public - American Seamen have lost approximately 50% of their jobs in the past few years to foreign flag ships employing seamen at a fraction of the wages of American Seamen. </s> "American dollars flowing to these foreign ship owners operating ships at wages and benefits substandard to American Seamen, are hurting our balance of payments in addition to hurting our economy by the loss of jobs. </s> "A strong American Merchant Marine is essential to our national [415 U.S. 104, 108] defense. The fewer American flag ships there are, the weaker our position will be in a period of national emergency. </s> "PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS, HELP OUR ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY HELPING TO CREATE A STRONG AMERICAN MERCHANT MARINE. </s> "Our dispute is limited to the vessel picketed at this site, the S. S. _____" (App. 21). </s> [Footnote 6 The courts below considered only this ground advanced by respondents, finding it dispositive. We express no opinion on the merits of respondents' other contentions. </s> [Footnote 7 482 S. W. 2d, at 678. </s> [Footnote 8 Id., at 680-682. </s> [Footnote 9 Id., at 682. </s> [Footnote 10 Benz v. Compania Naviera Hidalgo, 353 U.S. 138 (1957); McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963); Incres S. S. Co. v. Maritime Workers, 372 U.S. 24 (1963); Longshoremen v. Ariadne Co., 397 U.S. 195 (1970). </s> [Footnote 11 The Court in McCulloch also noted that the Board's actions had "aroused vigorous protests from foreign governments and created international problems for our Government." 372 U.S., at 17 . </s> [Footnote 12 The evidence in Ariadne showed that the work at issue was performed partly by members of the foreign ships' crews and partly by outside labor. 397 U.S., at 196 . Those workers included in the classification "outside labor" were nonunion members. This Court noted that "[t]he participation of some crew members in the longshore work does not obscure the fact that this dispute centered on the wages to be paid American residents, who were employed by each foreign ship not to serve as members of its crew but rather to do casual longshore work." Id., at 199. </s> [Footnote 13 The basic question at issue in Lauritzen was whether American or Danish law applied to a maritime tort which occurred in Havana Harbor. Although analysis of the Jones Act there obviously involved different considerations from analysis of the Labor Management Relations Act here, it is interesting to note that some arguments at least are common to both cases. In Lauritzen this Court rejected a "candid and brash appeal" made by the seamen and various amici that the Court should "extend the law to this situation as a means of benefiting seamen and enhancing the costs of foreign ship operation for the competitive advantage of our own." 345 U.S., at 593 . We observed at that time that such arguments were obviously better directed to Congress. </s> [Footnote 14 We do not find the rationale of Marine Cooks & Stewards v. Panama S. S. Co., 362 U.S. 365 (1960), to be applicable here. Although that case involved a labor situation strikingly similar to the situation involved in this case, the controlling question in Marine Cooks was the jurisdiction of a federal district court to enjoin picketing of a foreign-flag ship under the Norris-LaGuardia Act, 29 U.S.C. 101 et seq. The Court held that in such circumstances the district courts had no jurisdiction. However, as we later noted in McCulloch, 372 U.S., at 18 , Marine Cooks "cannot be regarded as limiting the earlier Benz holding . . . since no question as to `whether the picketing . . . was tortious under state or federal law' was either presented or decided." Obviously the question whether Congress intended the federal courts to stay out of the labor injunction business involves significantly different considerations from the question whether Congress intended the Labor Management Relations Act to apply to the type of picketing of foreign ships involved here. </s> MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting. </s> Today's reversal of the Texas Court of Civil Appeals does not, of course, end this case. There remain for disposition on remand two of the respondents' defenses not reached by the Texas courts, namely (1) that Texas law does not proscribe respondents' picketing, and (2) that, in any event, the First and Fourteenth Amendments protect respondents' conduct. 1 </s> But the fact that today's decision does not finally decide the legality of respondents' picketing should not obscure the significance of the Court's holding. Ninety-five percent of our export trade has already fled American-flag vessels for cheaper, foreign-registered shipping. 2 In holding that respondents' picketing against foreignflag vessels does not give rise to a dispute "affecting commerce" within the National Labor Relations Board's jurisdiction, the Court effectively deprives American seamen, among all American employees in commerce, of any federally protected weapon with which to try to save their jobs. 3 Additionally, the Court creates new difficulties [415 U.S. 104, 117] for the Board in its administration of the Act by making the Board's statutory jurisdiction turn on the identity of the competitor that might be affected by the picketing - a distinction relevant in the determination whether picketing is protected or prohibited activity under the Act, but a distinction rejected in other contexts in the determination of Board jurisdiction. 4 </s> There is, of course, no doubt that Congress possesses the power to subject foreign shipping in American territorial [415 U.S. 104, 118] waters to the federal labor laws. 5 And the Court concedes that the picketing activities involved here fall literally within the term "commerce" as used in the Labor Management Relations Act. Ante, at 112. </s> After acknowledging the paucity of support for an exclusion in the term "commerce," the Court, however, concludes that prior cases construing the "affecting commerce" limitation in 2 (6), 2 (7), and 10 (29 U.S.C. 152 (6), 152 (7), and 160) support the holding that respondents' picketing against foreign-flag vessels is conduct not cognizable by the Board. With respect, I think that the Court misreads those cases, and also fails to take account of other relevant congressional and judicial guidance that leads to a contrary conclusion. </s> As the Court concedes, none of the cases relied upon reached the question before us, that is, whether American seamen may employ economic weapons to try to save their jobs by improving the competitive positions of their domestic employers vis-a-vis foreign shipping. Yet the Court relies upon those decisions as supporting the proposition that we must conclude that Congress "simply did not intend that Act [LMRA] to erase longstanding principles of comity and accommodation in international maritime trade," ante, at 112-113, because the economic impact upon foreign shipping from respondents' picketing might severely disrupt the maritime operations of foreign vessels. Not a word or sentence in any opinion in those cases supports that reading. Rather, those decisions [415 U.S. 104, 119] rested squarely upon the reasoning that, in circumstances where Board cognizance of a dispute will necessarily involve Board inquiry into the labor relations between foreign crews and foreign vessels, Congress could not be understood to have granted the Board jurisdiction of the dispute. </s> In Benz v. Compania Naviera Hidalgo, 353 U.S. 138 (1957), the seminal case in this area, an American union attempted to organize the foreign crew of a vessel operating under a foreign flag. The Court, holding that Congress did not fashion the LMRA "to resolve labor disputes between nationals of other countries operating ships under foreign laws," id., at 143, said: </s> "It should be noted at the outset that the dispute from which these actions sprang arose on a foreign vessel. It was between a foreign employer and a foreign crew operating under an agreement made abroad under the laws of another nation. The only American connection was that the controversy erupted while the ship was transiently in a United States port and American labor unions participated in its picketing." Id., at 142. </s> Similarly, subsequent decisions also turned jurisdiction on the determination whether Board cognizance would require the Board to inquire into the internal relations between the foreign ship's crew and its foreign owner. In McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), we held that the Board did not have jurisdiction to order an election on a foreign-flag vessel, for </s> "to follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports." Id., at 19. </s> In Incres S. S. Co. v. Maritime Workers, 372 U.S. 24 (1963), the issue was whether the Board had power to [415 U.S. 104, 120] adjudicate the legality of the efforts of a union to organize the members of a foreign crew. Again, the Court held that the Board was without jurisdiction under the Act, since adjudication of that question would require that the Board examine into the relations between that crew and its foreign-flag employer. Id., at 27-28. </s> The question whether a labor dispute would necessitate Board inquiry into the relations between foreign vessels and crews was yet again central in Longshoremen v. Ariadne Co., 397 U.S. 195 (1970), the most recent of the cases where we sustained Board jurisdiction of a dispute involving picketing of a foreign-flag ship in protest against wages being paid to American longshoremen unloading the foreign vessel in an American port. We held that the prohibited inquiry would not result in that case, explaining: </s> "We hold that [the longshoremen's] activities were not [`maritime operations of foreign-flag ships']. The American longshoremen's short-term, irregular and casual connection with the respective vessels plainly belied any involvement on their part with the ships' `internal discipline and order.' Application of United States law to resolve a dispute over the wages paid the men for their longshore work, accordingly, would have threatened no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law. We therefore find that these longshore operations were in `commerce' within the meaning of 2 (6), and thus might have been subject to the regulatory power of the National Labor Relations Board." Id., at 200. </s> Thus, the only appropriate issue in the instant case is whether NLRB cognizance of respondents' picketing [415 U.S. 104, 121] would require that the Board inquire into the "internal discipline and order" of foreign vessels, and thus threaten "interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law." Tested by that principle, I conclude, contrary to the Court, that this case falls under Ariadne rather than under Benz. </s> Ariadne is the controlling precedent even if the Court is correct that this dispute "could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country." Ante, at 114. For respondents' picketing is not directed at forcing the shipowners to make that or any other accommodation that could be characterized as interference with relations between crews and shipowners. Respondents' target is to persuade shippers not to patronize foreign vessels, and respondents have no concern with the form of the shipowners' response that makes their efforts succeed. 6 </s> Similarly, Ariadne is the controlling precedent even if the Court is right that "[v]irtually none of the predictable [415 U.S. 104, 122] responses of a foreign shipowner to picketing of this type . . . would be limited to the sort of wage-cost decision benefiting American workingmen which the LMRA [as it amended the NLRA] was designed to regulate." Ante, at 115. The question whether this case falls within the Board's jurisdiction does not turn on the "predictable responses" of the foreign shipowner but, under our cases from Benz to Ariadne, solely on the question whether cognizance of respondents' activity would involve the Board in an examination into the internal relations between the foreign crews and shipowners. Cognizance of respondents' conduct in this case would not appear to require that inquiry. In any event, as the Texas Court of Civil Appeals correctly observed, it suffices for Board jurisdiction of that conduct that it is arguable whether that inquiry is required, for in such case it is for the Board to determine in the first instance whether that conduct involves a labor dispute within its cognizance. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). </s> But my disagreement with the Court does not rest alone on its failure adequately to rationalize and distinguish the case law. As the Court states, the Nation's labor laws must be read in light of the longstanding involvement of Congress with maritime affairs. If that involvement is examined, however, it will demonstrate that, beginning with its first session, 1 Stat. 55, Congress has been deeply engaged in legislating to protect American vessels from competition, usually by enacting discriminatory laws against foreign-flag vessels. Myriad hearings and reports reflect congressional determination that the American merchant marine, largely because of protections afforded American seamen's wages and working conditions in collective bargaining fostered by the National Labor Relations Act, shall have legislative help [415 U.S. 104, 123] to support its efforts to compete on equal terms for a share of our foreign commerce. 7 </s> This congressional support was highlighted as recently as 1970, in amendments to the Merchant Marine Act, 1936, 46 U.S.C. 1101 et seq., to which we may look with profit. The declaration of policy of that Act, as amended in 1970, states as its purpose that "[i]t is necessary for the national defense and development of [the United States'] foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States . . . ." That merchant marine is further to be "owned and operated under the United States flag by citizens of the United States, insofar as may be practicable," and is to be "manned with a trained and efficient citizen personnel." 46 U.S.C. 1101. See also Merchant Marine Act, 1920, 46 U.S.C. 861. The 1936 Act furthers those aims by providing subsidies for the construction and operation of American-flag shipping, 46 U.S.C. 1151, 1171, and goes far in imposing discriminations against foreign-flag shipping in regard to certain types of freight. 46 U.S.C. 1241. [415 U.S. 104, 124] See also 46 U.S.C. 251, 808 (restricting coastwise trade). Far from conduct in conflict with Congress' legislative policies in the maritime field, respondents' picketing seeks precisely the same goals. </s> Yet the Court, although not remotely suggesting that respondents' picketing constitutes an illegal intrusion by private citizens into foreign affairs, reaches a conclusion that necessarily implies that Congress was content to leave the whole problem to resolution by the States. It is inconceivable that Congress meant to leave regulation of activity in this area of predominantly national concern to disparate state laws reflecting parochial interests. </s> I would affirm the judgment of the Texas Court of Civil Appeals. </s> [Footnote 1 See NLRB v. Fruit & Vegetable Packers, 377 U.S. 58 (1964); id., at 76 (Black, J., concurring); Thornhill v. Alabama, 310 U.S. 88 (1940). </s> [Footnote 2 See S. Rep. No. 91-1080, p. 16 (1970). See also id., at 17 (Chart 7: Projected Decline in Seafaring Job Opportunities in Foreign Trade Fleet from 1969 to 1980). </s> [Footnote 3 Those meager materials to be found in the congressional debates concerning the Labor Management Relations Act contradict the notion that Congress meant to distinguish among American workingmen for purposes of defining the Board's jurisdiction over labor disputes affecting commerce. See H. R. Rep. No. 245, 80th Cong., 1st Sess., 4 (1947), discussed in Benz v. Compania Naviera Hidalgo, [415 U.S. 104, 117] 353 U.S. 138, 142 -144 (1957). See also Longshoremen v. Ariadne Co., 397 U.S. 195, 198 -199 (1970). </s> [Footnote 4 Thus, the Court refused to make that distinction even where the language of the Act might have been read as indicating that Congress meant to draw it. In Teamsters v. New York, N. H. & H. R. Co., 350 U.S. 155 (1956), a union engaged in the over-the-road trucking of freight picketed a railroad loading yard to protest the "piggy-backing" of truck trailers on railroad cars that was curtailing their opportunities for employment. The railroad, subject to the Railway Labor Act, 45 U.S.C. 151 et seq., was a "person" exempted from the NLRA's definition of "employer." 29 U.S.C. 152 (2). </s> Nonetheless, the Court relied upon the finding of the lower court that the "union was in no way concerned with [the railroad's] labor policy," and held that the dispute was subject to the jurisdiction of the National Labor Relations Board. The Court said: </s> "This interpretation permits the harmonious effectuation of three distinct congressional objectives: (1) to provide orderly and peaceful procedures for protecting the rights of employers, employees and the public in labor disputes so as to promote the full, free flow of commerce, as expressed in 1 (b) of the Labor Management Relations Act; (2) to maintain the traditional separate treatment of employer-employee relationships of railroads subject to the Railway Labor Act; and (3) to minimize diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.' Garner v. Teamsters Union, 346 U.S. 485, 490 ." 350 U.S., at 160 -161. </s> In contrast, there is no wording in the statute, or any legislative history, supporting a reading that Congress meant to draw that line as to seamen. </s> [Footnote 5 See Benz v. Compania Naviera Hidalgo, supra, at 142: </s> "It is beyond question that a ship voluntarily entering the territorial limits of another country subjects itself to the laws and jurisdiction of that country. Wildenhus's Case, 120 U.S. 1 (1887) . . . . It follows that if Congress had so chosen, it could have made the Act applicable to wage disputes arising on foreign vessels between nationals of other countries when the vessel comes within our territorial waters." </s> [Footnote 6 The picket signs were not directed to improvement of the foreign crews' wages and working conditions. The protest was carefully phrased to appeal to shippers not to patronize the foreign ships because payment of wages "substandard to those of American seamen . . . results in extreme damage to our wage standards and loss of our jobs." Thus, cognizance of the dispute to determine the legality of the picketing as an unfair labor practice need not involve the Board in an inquiry whether the picketing called for an employer response in the form of an increase in the crews' wages. This would not of course mean that respondents would prevail on the merits. There may well be a question, for example, whether the picketing falls within the ban of 8 (b) (7), 29 U.S.C. 158 (b) (7), as prohibited recognitional picketing. See Rosen, Area Standards Picketing, 23 Lab. L. J. 67 (1972); Note, Picketing for Area Standards: An Exception to Section 8 (b) (7), 1968 Duke L. J. 767. </s> [Footnote 7 See, e. g., H. R. Rep. No. 91-1073 (1970); S. Rep. No. 91-1080 (1970); Hearings on H. R. 12324 and H. R. 12569 before the Subcommittee on Merchant Marine of the House Committee on Merchant Marine & Fisheries, 92d Cong., 2d Sess. (1972) (Cargo for American Ships); Hearings on H. R. 15424, H. R. 15425, and H. R. 15640 before the Subcommittee on Merchant Marine of the House Committee on Merchant Marine & Fisheries, 91st Cong., 2d Sess. (1970) (President's Maritime Program, pt. 2); Hearings on S. 3287 before the Merchant Marine Subcommittee of the Senate Committee on Commerce, 91st Cong., 2d Sess. (1970) (the Maritime Program); Hearings on H. R. 1897, H. R. 2004, and H. R. 2331 before the House Committee on Merchant Marine & Fisheries, 88th Cong., 1st Sess. (1963) (Maritime Labor Legislation). </s> [415 U.S. 104, 125]

United States Supreme Court LEEDOM v. INTERNATIONAL UNION(1956) No. 57 Argued: November 14, 1956Decided: December 10, 1956 </s> Section 9 (h) of the National Labor Relations Act provides that the Board shall make no investigation nor issue any complaint on behalf of a union unless there is no file with the Board a non-Communist affidavit of each officer of the union and of any national or international labor organization of which it is an affiliate; and that "The provisions of section 35 A of the Criminal Code shall be applicable in respect to such affidavits." Held: The criminal sanction is the exclusive remedy for the filing of a false affidavit under this section; and the Board may not take administrative action and, on a finding that a false affidavit has been filed, enter an order withholding from the union the benefits of the Act until it is satisfied that the union has complied. Pp. 146-151. </s> (a) Labor Board v. Highland Park Co., 341 U.S. 322 , and Labor Board v. Coca-Cola Bottling Co., 350 U.S. 264 , distinguished. P. 149. </s> (b) The language of 9 (h) and its legislative history preclude an additional sanction which in practical effect would run against the members of the union, not their guilty officers. Pp. 149-151. </s> 96 U.S. App. D.C. 416, 226 F.2d 780, affirmed. </s> Theophil C. Kammholz argued the cause for petitioners. With him on the brief were Solicitor General Rankin, Dominick L. Manoli and Norton J. Come. </s> Nathan Witt argued the cause for respondent. With him on the brief were Joseph Forer and David Rein. [352 U.S. 145, 146] </s> MR. JUSTICE DOUGLAS delivered the opinion of the Court. </s> Section 9 (h) of the National Labor Relations Act, as amended, 61 Stat. 136, 146, 65 Stat. 601, 602, 29 U.S.C. 159 (h), provides that the Board shall make no investigation nor issue any complaint on behalf of a union unless there is on file with the Board a non-Communist oath of each officer of the union and of each officer of any national or international labor organization of which it is an affiliate or constituent unit. 1 Section 9 (h) further provides that "The provisions of section 35 A of the Criminal Code shall be applicable in respect to such affidavits." Section 35 A of the Criminal Code applies a criminal sanction 2 to false affidavits filed under 9 (h). The question in this case is whether criminal prosecution under that provision is the exclusive remedy for the filing of a false affidavit under 9 (h) or whether the Board may take administrative action and, on a finding that a false affidavit has been filed, enter an order of decompliance, [352 U.S. 145, 147] withholding from the union in question the benefits of the Act until it is satisfied that the union has complied. The court below held that the criminal sanction was the exclusive remedy for filing the false affidavit. 96 U.S. App. D.C. 416, 226 F.2d 780. That decision is in conflict with a ruling of the Court of Appeals for the Sixth Circuit. Labor Board v. Lannom Mfg. Co., 226 F.2d 194. We granted the petitions for certiorari in each case in order to resolve the conflict. 351 U.S. 949 ; 351 U.S. 905 . </s> The union involved in the present case is the International Union of Mine, Mill, and Smelter Workers. The union filed a complaint with the Board charging that the Precision Scientific Co. refused to bargain with it in violation of the Act. During the course of the hearing before the Board, the company challenged the veracity of affidavits filed by one Travis, an officer of the union, under 9 (h). The Board, in accord with its practice, 3 refused to allow that issue to be litigated in the unfair labor practice proceeding. But later on, it issued an order directing an administrative investigation and hearing. A hearing was held before an examiner who found, among other things, that the 9 (h) affidavit filed by Travis in August 1949 was false and that the union membership knew it was false and yet continued to re-elect him as an officer. The Board agreed with the trial examiner, held that the union was not and had not been in compliance with 9 (h) of the Act, and ordered that the union be accorded no further benefits under the Act until it had complied. Maurice E. Travis, 111 N. L. R. B. 422. The Board, thereafter, dismissed the union's complaint against Precision Scientific Co., an action later vacated pursuant to a stay issued by the court below. [352 U.S. 145, 148] </s> The instant suit was brought in the District Court by the union, which prayed that the Board's order of decompliance be enjoined. Precision Scientific Co. intervened. The District Court denied a preliminary injunction. The Court of Appeals reversed, 96 U.S. App. D.C. 416, 226 F.2d 780, on the authority of its prior decision in Farmer v. International Fur & Leather Workers Union, 95 U.S. App. D.C. 308, 221 F.2d 862. It held that a false affidavit filed under 9 (h) of the Act gave rise only to a criminal penalty against the guilty union officer and did not in any way alter the union's right to the benefits of the Act, even where its members were aware of the officer's fraud. </s> We agree with the court below that the Board has no authority to deprive unions of their compliance status under 9 (h) and that the only remedy for the filing of a false affidavit is the criminal penalty provided in 35 A of the Criminal Code. We start with a statutory provision that contains only one express sanction, viz., prosecution for making a false statement. No other sections of the Act expressly supplement that one sanction. </s> The aim of 9 (h) is clear. It imposes a criminal penalty for filing a false affidavit so as to deter Communist officers from filing at all. The failure to file stands as a barrier to the making of an investigation by the Board and the issuance of any complaint for the benefit of the union in question. The section, therefore, provides an incentive to the members of the union to rid themselves of Communist leadership and elect officers who can file affidavits in order to receive the benefits of the Act. The filing of the required affidavits by the necessary officers is the key that makes available to the union the benefits of the Act. </s> The Board is under a duty to determine whether a filing has been made by each person specified in 9 (h), since its power to act on union charges is conditioned on [352 U.S. 145, 149] filing of the necessary affidavits. That was the extent of our rulings in Labor Board v. Highland Park Co., 341 U.S. 322 ; Labor Board v. Coca-Cola Bottling Co., 350 U.S. 264 . The argument made by the Board would have us go further and read into the Act an implied power to determine not only whether the affidavit has been filed but also whether the affidavit filed is true or false. And for that position reliance is placed on general statements in cases like Labor Board v. Indiana & Michigan Electric Co., 318 U.S. 9, 18 -19, that the Board has implied power to protect its process from abuse. </s> We are dealing here with a special provision that has a precise history. Both the Senate and the House originally passed bills which, though the language differed one from the other, made the test of compliance the fact of nonmembership of union officers in the Communist Party. See 1 Leg. Hist., Labor Management Relations Act, 1947 (Nat. Labor Rel. Bd., 1948), pp. 190, 251. If those provisions had become the law, the Board would have been required to conduct an inquiry into whether the officers were in fact non-Communist, at least where the veracity of the affiant was challenged. 4 But a fundamental change in 9 (h) was made by the Conference Committee. As stated in the Conference Report respecting the provisions in the two bills. </s> "In reconciling the two provisions the conferees took into account the fact that representation proceedings might be indefinitely delayed if the Board was required to investigate the character of all the local and national officers as well as the character of the officers of the parent body or federation. The conference agreement provides that no certification [352 U.S. 145, 150] shall be made or any complaint issued unless the labor organization in question submits affidavits executed by each of its officers and officers of its national or international body, to the effect that they are not members or affiliates of the Communist Party or any other proscribed organization. The penal provisions of section 35 (a) of the Criminal Code (U.S.C., title 18, sec. 80) are made applicable to the execution of such affidavits." 2 Leg. Hist., op. cit., supra, p. 1542. </s> Senator Taft explained the change to the Senate: </s> "This provision making the filing of affidavits with respect to Communist Party affiliation by its officers a condition precedent to use of the processes of the Board has been criticized as creating endless delays. It was to prevent such delays that this provision was amended by the conferees. Under both the Senate and House bills the Board's certification proceedings could have been infinitely delayed while it investigated and determined Communist Party affiliation. Under the amendment an affidavit is sufficient for the Board's purpose and there is no delay unless an officer of the moving union refuses to file the affidavit required." Id., at 1625; 93 Cong. Rec. 6860. </s> This explicit statement by the one most responsible for the 1947 amendments seems to us to put at rest the question raised by this case. If, in spite of the change in wording of 9 (h) made by the Conference Committee, the Board could still investigate the truth or falsity of the affidavits filed, the unfair labor practice proceedings might be "infinitely delayed," to use Senator Taft's words. Under the construction presently urged by the Board, Senator Taft's assurance that "an affidavit is sufficient for the Board's purpose" would be disregarded. [352 U.S. 145, 151] </s> Much argument is advanced that the contrary position is favored by policy considerations. For example, it is said that if the Board can look into the truth or falsity of all 9 (h) affidavits and enter orders of decompliance in case they are found to be false, union members will have greater incentive to rid themselves of Communist leaders. But the rule written into 9 (h) is for the protection of unions as well as for the detection of Communists. It is not fair to read it only against the background of a case where the members knew their officer was a Communist. We are dealing with a requirement equally applicable to all unions, whether the members are innocent of such knowledge or guilty. As Judge Bazelon stated in Farmer v. United Electrical Workers, 93 U.S. App. D.C. 178, 181, 211 F.2d 36, 39, there is no indication that Congress meant to impose on a union the drastic penalty of decompliance "because its officer had deceived the union as well as the Board by filing a false affidavit." The penalty stated in 9 (h) is one against the guilty officers. In view of the wording of 9 (h) and its legislative history, we cannot find an additional sanction which in practical effect would run against the members of the union, not their guilty officers. That was the Board's original position, 5 and we think it is the correct one. </s> Affirmed. </s> Footnotes [Footnote 1 "No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of section 35 A of the Criminal Code shall be applicable in respect to such affidavits." </s> [Footnote 2 Section 35 A provides a penalty of $10,000, or a prison term or both, for making, among other things, fraudulent statements "in any matter within the jurisdiction of any department or agency of the United States." 52 Stat. 197, 18 U.S.C. 1001. </s> [Footnote 3 See In the Matter of Lion Oil Co., 76 N. L. R. B. 565, 566; Coca-Cola Bottling Co., 108 N. L. R. B. 490, 491. </s> [Footnote 4 See the colloquy between Senators Ferguson and McClellan in 2 Leg. Hist., Labor Management Relations Act, 1947 (Nat. Labor Rel. Bd., 1948), pp. 1434-1435. </s> [Footnote 5 In the Matter of Craddock-Terry Shoe Corp., 76 N. L. R. B. 842, 843, a proceeding involving an unfair labor practice, the Board refused to entertain evidence that the affidavits filed under 9 (h) were false, the Board saying: "In the instant case there is on file an affidavit identifying the officers of the Union, and non-Communist affidavits signed by each officer so identified. It is not the purpose of the statute to require the Board to investigate the authenticity or truth of the affidavits which have been filed. Persons desiring to establish falsification or fraud have recourse to the Department of Justice for a prosecution under Section 35 (a) of the Criminal Code. The evidence sought to be adduced under this allegation is [352 U.S. 145, 152] accordingly immaterial." And see In the Matter of Alpert and Alpert, 92 N. L. R. B. 806, 807. </s> On March 18, 1952, Paul M. Herzog, then Chairman of the Board, testified on 9 (h) problems in Senate hearings. He reported that in the four years ending June 30, 1951, there had been filed with the Board 232,000 non-Communist affidavits. He reviewed the history of 9 (h) and remarked how "intolerable and delaying" the administrative process would have been if the proposals originally contained in 9 (h), and which we have discussed, had been enacted into law: </s> ". . . Had this provision been enacted into law, the Board would have been inundated with litigation on an issue concerning which proof is singularly difficult to obtain, to the detriment of speedy disposal of cases which cry out for early employee recourse to the ballot box. </s> "Instead, Congress imposed an obligation on labor union `officers' - without defining them in the statute - to take the affirmative step of forswearing Communist affiliation. The theory evidently was that if these officers' refusal to sign affidavits deprived their constituents of all the Board's facilities, the spotlighting of that refusal would soon generate pressure from below to remove them from office. It was apparent from the outset that the NLRB's sole function was to make certain that the necessary persons filed these affidavits, and that, once they had done so pursuant to the rules we adopted, we were to process their cases without inquiring into the truth or falsity of the affidavits themselves. Where such an issue arose, the Board's statutory duty was only to refer the affidavit to the Department of Justice for investigation and possible prosecution for perjury under the Criminal Code. We have made 55 such referrals since 1947." </s> Hearings, Senate Subcommittee of Committee on Labor and Public Welfare, Communist Domination of Unions and National Security, 82d Cong., 2d Sess., p. 91. </s> On November 10, 1953, the Board issued a Statement of Policy which overturned its previous position. The Board then concluded that a conviction for filing a false affidavit "would necessarily invalidate any certifications or other official action taken by the Board in reliance on the truth of such affidavits." The extent of this change in policy was underscored by the Board's further decision to hold in abeyance representation elections which concerned a union whose officers were under indictment for filing false affidavits. 18 Fed. Reg. 7185. </s> [352 U.S. 145, 152]

United States Supreme Court DEMOCRATIC PARTY OF U.S. v. WISCONSIN(1981) No. 79-1631 Argued: December 8, 1980Decided: February 25, 1981 </s> Rules of the Democratic Party of the United States (National Party) provide that only those who are willing to affiliate publicly with the Democratic Party may participate in the process of selecting delegates to the Party's National Convention. Wisconsin election laws allow voters to participate in its Democratic Presidential candidate preference primary without regard to party affiliation and without requiring a public declaration of party preference. While the Wisconsin delegates to the National Convention are chosen separately, after the primary, at caucuses of persons who have stated their affiliation with the Democratic Party, those delegates are bound to vote at the Convention in accord with the results of the open primary election. Thus, while Wisconsin's open Presidential preference primary does not itself violate the National Party's rules, the State's mandate that primary results shall determine the allocation of votes cast by the State's delegates at the National Convention does. When the National Party indicated that Wisconsin delegates would not be seated at the 1980 National Convention because the Wisconsin delegate selection system violated the National Party's rules, an original action was brought in the Wisconsin Supreme Court on behalf of the State, seeking a declaration that such system was constitutional as applied to appellants (the National Party and Democratic National Committee) and that they could not lawfully refuse to seat the Wisconsin delegation. Concluding, inter alia, that the State had not impermissibly impaired the National Party's freedom of political association protected by the First and Fourteenth Amendments, the Wisconsin Supreme Court held that the State's delegate selection system was constitutional and binding upon appellants and that they could not refuse to seat delegates chosen in accord with Wisconsin law. </s> Held: </s> Wisconsin cannot constitutionally compel the National Party to seat a delegation chosen in a way that violates the Party's rules. Cousins v. Wigoda, 419 U.S. 477 , controlling. Pp. 120-126. </s> (a) The National Party and its adherents enjoy a constitutionally protected right of political association under the First Amendment, and [450 U.S. 107, 108] this freedom to gather in association for the purpose of advancing shared beliefs is protected by the Fourteenth Amendment from infringement by any State, and necessarily presupposes the freedom to identify the people who constitute the association and to limit the association to those people only. Here, the members of the National Party, speaking through their rules, chose to define their associational rights by limiting those who could participate in any binding process leading to the selection of delegates to their National Convention. Pp. 120-122. </s> (b) Wisconsin's asserted compelling interests in preserving the overall integrity of the electoral process, providing secrecy of the ballot, increasing voter participation in primaries, and preventing harassment of voters, go to the conduct of the open Presidential preference primary, not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates. Therefore, such asserted interests do not justify the State's substantial intrusion into the associational freedom of members of the National Party. Pp. 124-126. </s> 93 Wis. 2d 473, 287 N. W. 2d 519, reversed. </s> STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 126. </s> Ronald D. Eastman argued the cause for appellants. With him on the briefs was Lynda S. Mounts. </s> Bronson C. La Follette, Attorney General, argued the cause for appellee State of Wisconsin. With him on the brief were Charles Hoornstra, F. Joseph Sensenbrenner, Jr., and Nancy L. Arnold, Assistant Attorneys General. Robert H. Friebert argued the cause for appellee Democratic Party of Wisconsin. With him on the brief was Carol Skornicka. * </s> [Footnote * Thomas F. Nealon III filed a brief for the Democratic conference as amicus curiae urging reversal. </s> Briefs of amici curiae urging affirmance were filed by Slade Gorton, Attorney General of Washington, Thomas R. Bjorgen, Assistant Attorney General, Mike Greely, Attorney General of Montana, and Mike McGrath, Assistant Attorney General, for the State of Washington et al.; and by David C. Vladeck and Alan B. Morrison for James MacDonald et al. [450 U.S. 107, 109] </s> JUSTICE STEWART delivered the opinion of the Court. </s> The charter of the appellant Democratic Party of the United States (National Party) provides that delegates to its National Convention shall be chosen through procedures in which only Democrats can participate. Consistently with the charter, the National Party's Delegate Selection Rules provide that only those who are willing to affiliate publicly with the Democratic Party may participate in the process of selecting delegates to the Party's National Convention. The question on this appeal is whether Wisconsin may successfully insist that its delegates to the Convention be seated, even though those delegates are chosen through a process that includes a binding state preference primary election in which voters do not declare their party affiliation. The Wisconsin Supreme Court held that the National Convention is bound by the Wisconsin primary election results, and cannot refuse to seat the delegates chosen in accord with Wisconsin law. 93 Wis. 2d 473, 287 N. W. 2d 519. </s> I </s> Rule 2A of the Democratic Selection Rules for the 1980 National Convention states: "Participation in the delegate selection process in primaries or caucuses shall be restricted to Democratic voters only who publicly declare their party preference and have that preference publicly recorded." 1 Under [450 U.S. 107, 110] National Party rules, the "delegate selection process" includes any procedure by which delegates to the Convention are bound to vote for the nomination of particular candidates. 2 </s> The election laws of Wisconsin 3 allow non-Democrats - [450 U.S. 107, 111] including members of other parties and independents - to vote in the Democratic primary without regard to party affiliation and without requiring a public declaration of party preference. The voters in Wisconsin's "open" 4 primary express their [450 U.S. 107, 112] choice among Presidential candidates for the Democratic Party's nomination; they do not vote for delegates to the National Convention. Delegates to the National Convention are chosen separately, after the primary, at caucuses of persons who have stated their affiliation with the Party. 5 But these delegates, under Wisconsin law, are bound to vote at the National Convention in accord with the results of the open primary election. 6 Accordingly, while Wisconsin's open Presidential preference primary does not itself violate National Party rules, 7 the State's mandate that the results of the primary shall determine the allocation of votes cast by the State's delegates at the National Convention does. </s> In May 1979, the Democratic Party of Wisconsin (State Party) submitted to the Compliance Review Commission of the National Party its plan for selecting delegates to the 1980 National Convention. The plan incorporated the provisions of the State's open primary laws, and, as a result, the Commission disapproved it as violating Rule 2A. 8 Since compliance with Rule 2A was a condition of participation at [450 U.S. 107, 113] the Convention, for which no exception could be made, 9 the National Party indicated that Wisconsin delegates who were bound to vote according to the results of the open primary would not be seated. </s> The State Attorney General then brought an original action in the Wisconsin Supreme Court on behalf of the State. Named as respondents in the suit were the National Party and the Democratic National Committee, who are the appellants in this Court, and the State Party, an appellee here. The State sought a declaration that the Wisconsin delegate selection system was constitutional as applied to the appellants and that the appellants could not lawfully refuse to seat the Wisconsin delegation at the Convention. The State Party responded by agreeing that state law may validly be applied against it and the National Party, and cross-claimed against the National Party, asking the court to order the National Party to recognize the delegates selected in accord with Wisconsin law. The National Party argued that under the First and Fourteenth Amendments it could not be compelled to seat the Wisconsin delegation in violation of Party rules. </s> The Wisconsin Supreme Court entered a judgment declaring that the State's system of selecting delegates to the Democratic National Convention is constitutional and binding on the appellants. 93 Wis. 2d 473, 287 N. W. 2d 519. The court assumed that the National Party's freedom of political association, protected by the First and Fourteenth Amendments, gave it the right to restrict participation in the process of choosing Presidential and Vice Presidential candidates to Democrats. Id., at 511-512, 287 N. W. 2d, at 536. It concluded, however, that the State had not impermissibly impaired that right. The court said that the State's primary election laws were themselves intended to permit persons to vote only for the candidates of the party they preferred, and [450 U.S. 107, 114] that, as a practical matter, requiring a public declaration of party affiliation would not prevent persons who are not Democrats from voting in the primary. 10 Moreover, the court reasoned that to whatever extent appellants' constitutional freedom of political association might be burdened by the Wisconsin election laws, the burden was justified by the State's "compelling . . . interest in maintaining the special feature of its primary . . . which permits private declaration of party preference." Id., at 521, 287 N. W. 2d, at 541. </s> The court declared that the votes of the state delegation at the National Convention for Presidential and Vice Presidential candidates must be apportioned and cast as prescribed by Wisconsin law, and that the State's delegates could not for that reason be disqualified from being seated at the Convention. 11 The National Party and the Democratic National Committee then brought this appeal under 28 U.S.C. 1257 (2). </s> Wisconsin held its primary on April 1, 1980, in accord with its election laws. Subsequently, the State Party chose delegates to the 1980 Democratic National Convention, in compliance with the order of the Wisconsin Supreme Court and Wis. Stat. 8.12 (3) (b), (3) (c) 5 (1977). This Court noted probable jurisdiction of the appeal on July 2, 1980. 448 U.S. 909 . On the same day, the Court stayed the judgment of [450 U.S. 107, 115] the Wisconsin Supreme Court. On July 20, 1980, the Credentials Committee of the National Convention decided to seat the delegates from Wisconsin, despite this Court's stay, 12 and despite the delegates' selection in a manner that violated Rule 2A. 13 </s> II </s> Rule 2A can be traced to efforts of the National Party to study and reform its nominating procedures and internal structure after the 1968 Democratic National Convention. 14 </s> [450 U.S. 107, 116] The Convention, the Party's highest governing authority, directed the Democratic National Committee (DNC) to establish a Commission on Party Structure and Delegate Selection (McGovern/Fraser Commission). This Commission concluded that a major problem faced by the Party was that rank-and-file Party members had been underrepresented at its Convention, and that the Party should "find methods which would guarantee every American who claims a stake in the Democratic Party the opportunity to make his judgment felt in the presidential nominating process." Commission on Party Structure and Delegate Selection, Mandate for Reform: A Report of the Commission on Party Structure and Delegate Selection to the Democratic National Committee 8 (Apr. 1970) (emphasis added) (hereafter Mandate for Reform). The Commission stressed that Party nominating procedures should be as open and accessible as possible to all persons who wished to join the Party, 15 but expressed the concern that "a full opportunity for all Democrats to participate is diluted if members of other political parties are allowed to participate [450 U.S. 107, 117] in the selection of delegates to the Democratic National Convention." Id., at 47. 16 </s> The 1972 Democratic National Convention also established a Commission on Delegate Selection and Party Structure (Mikulski Commission). This Commission reiterated many of the principles announced by the McGovern/Fraser Commission, but went further to propose binding rules directing state parties to restrict participation in the delegate selection process to Democratic voters. Commission on Delegate Selection and Party Structure, Democrats All: A Report of the Commission on Delegate Selection and Party Structure 2, 15 (Dec. 6, 1973) (hereafter Democrats All). The DNC incorporated these recommendations into the Delegate Selection Rules for the 1976 Convention. In 1974, the National Party adopted its charter and by-laws. The charter set the following qualifications for delegates to the Party's national conventions: </s> "The National Convention shall be composed of delegates who are chosen through processes which (i) assure all Democratic voters full, timely and equal opportunity to participate and include affirmative action programs toward that end, (ii) assure that delegations fairly reflect the division of preferences expressed by those who participate in the presidential nominating process, . . . [and] (v) restrict participation to Democrats only . . . ." Democratic National Committee, Charter of the Democratic Party of the United States, Art. Two, 4 (emphasis added). [450 U.S. 107, 118] </s> Rule 2A took its present form in 1976. Consistent with the charter, it restricted participation in the delegate selection process in primaries or caucuses to "Democratic voters only who publicly declare their party preference and have that preference publicly recorded." But the 1976 Delegate Selection Rules allowed for an exemption from any rule, including Rule 2A, that was inconsistent with state law if the state party was unable to secure changes in the law. 17 </s> In 1975, the Party established yet another commission to review its nominating procedures, the Commission on Presidential Nomination and Party Structure (Winograd Commission). This Commission was particularly concerned with what it believed to be the dilution of the voting strength of Party members in States sponsoring open or "crossover" primaries. 18 Indeed, the Commission based its concern in part on a study of voting behavior in Wisconsin's open primary. See Adamany, Cross-Over Voting and the Democratic Party's Reform Rules, 70 Am. Pol. Sci. Rev. 536, 538-539 (1976). </s> The Adamany study, assessing the Wisconsin Democratic primaries from 1964 to 1972, found that crossover voters comprised 26% to 34% of the primary voters; that the voting patterns of crossover voters differed significantly from those of participants who identified themselves as Democrats; and that crossover voters altered the composition of the delegate slate chosen from Wisconsin. 19 The Winograd Commission [450 U.S. 107, 119] thus recommended that the Party strengthen its rules against crossover voting, Openness, Participation and Party Building: Reforms for a Stronger Democratic Party 68 (Feb. 17, 1978) (hereafter Openness, Participation), predicting that continued crossover voting "could result in a convention delegation which did not fairly reflect the division of preferences among Democratic identifiers in the electorate." Ibid. And it specifically recommended that "participation in the delegate selection process in primaries or caucuses . . . be restricted to Democratic voters only who publicly declare their party preference and have that preference publicly recorded." Id., at 69. Accordingly, the text of Rule 2A was retained, but a new Rule, 2B, was added, prohibiting any exemptions from [450 U.S. 107, 120] Rule 2A. Delegate Selection Rules for the 1980 Democratic Convention, Rule 2B. 20 </s> III </s> The question in this case is not whether Wisconsin may conduct an open primary election if it chooses to do so, or whether the National Party may require Wisconsin to limit its primary election to publicly declared Democrats. 21 Rather, the question is whether, once Wisconsin has opened its Democratic Presidential preference primary to voters who do not publicly declare their party affiliation, it may then bind the National Party to honor the binding primary results, even though those results were reached in a manner contrary to National Party rules. </s> The Wisconsin Supreme Court considered the question before it to be the constitutionality of the "open" feature of the state primary election law, as such. Concluding that the [450 U.S. 107, 121] open primary serves compelling state interests by encouraging voter participation, the court held the state open primary constitutionally valid. Upon this issue, the Wisconsin Supreme Court may well be correct. In any event, there is no need to question its conclusion here. For the rules of the National Party do not challenge the authority of a State to conduct an open primary, so long as it is not binding on the National Party Convention. The issue is whether the State may compel the National Party to seat a delegation chosen in a way that violates the rules of the Party. And this issue was resolved, we believe, in Cousins v. Wigoda, 419 U.S. 477 . </s> In Cousins the Court reviewed the decision of an Illinois court holding that state law exclusively governed the seating of a state delegation at the 1972 Democratic National Convention, and enjoining the National Party from refusing to seat delegates selected in a manner in accord with state law although contrary to National Party rules. Certiorari was granted "to decide the important question . . . whether the [a]ppellate [c]ourt was correct in according primacy to state law over the National Political Party's rules in the determination of the qualifications and eligibility of delegates to the Party's National Convention." Id., at 483. The Court reversed the state judgment, holding that "Illinois' interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention." Id., at 491. That disposition controls here. </s> The Cousins Court relied upon the principle that "[t]he National Democratic Party and its adherents enjoy a constitutionally protected right of political association." Id., at 487. See also, id., at 491 (REHNQUIST, J., concurring). This First Amendment freedom to gather in association for the purpose of advancing shared beliefs is protected by the Fourteenth Amendment from infringement by any State. Kusper v. Pontikes, 414 U.S. 51, 57 ; Williams v. Rhodes, 383 U.S. 23, 30 -31. See also NAACP v. Alabama ex rel. Patterson, [450 U.S. 107, 122] 357 U.S. 449, 460 . And the freedom to associate for the "common advancement of political beliefs," Kusper v. Pontikes, supra, at 56, necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only. 22 "Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." Sweezy v. New Hampshire, 354 U.S. 234, 250 ; see NAACP v. Button, 371 U.S. 415, 431 . </s> Here, the members of the National Party, speaking through their rules, chose to define their associational rights by limiting those who could participate in the processes leading to the selection of delegates to their National Convention. On several occasions this Court has recognized that the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions - thus imparting the party's essential functions - and that political parties may accordingly protect themselves "from intrusion by those with adverse political principles." Ray v. Blair, 343 U.S. 214, 221 -222. In Rosario v. Rockefeller, 410 U.S. 752 , for example, the Court sustained the constitutionality of a requirement - there imposed by a state statute - that a voter enroll in the party of his choice at least 30 days before the general election in order to vote in the next party primary. The purpose of that statute was "to inhibit party `raiding,' whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary." Id., at 760. 23 See also Kusper v. Pontikes, supra, at 59-60. [450 U.S. 107, 123] </s> The Wisconsin Supreme Court recognized these constitutional doctrines in stating that the National Party could exclude persons who are not Democrats from the procedures through which the Party's national candidates are actually chosen. 93 Wis. 2d, at 499, 287 N. W. 2d, at 530. But the court distinguished Cousins on the ground that this case "does not arise `in the context of the selection of delegations to the National Party Convention. . . .'" 24 Id., at 525, 287 N. W. 2d, at 543. The court's order, however, unequivocally obligated the National Party to accept the delegation to the National Convention chosen in accord with Wisconsin law, despite contrary National Party rules. </s> The State argues that its law places only a minor burden on the National Party. The National Party argues that the burden is substantial, because it prevents the Party from "screen[ing] out those whose affiliation is . . . slight, tenuous, or fleeting," and that such screening is essential to build a more effective and responsible Party. But it is not for the courts to mediate the merits of this dispute. For even if the State were correct. 25 a State, or a court, may not constitutionally [450 U.S. 107, 124] substitute its own judgment for that of the Party. A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution. 26 And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational. 27 </s> IV </s> We must consider, finally, whether the State has compelling interests that justify the imposition of its will upon the appellants. See Cousins, 419 U.S., at 489 . 28 "Neither the right to associate nor the right to participate in political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567 . The State asserts a compelling interest in preserving the overall integrity of the electoral process, providing secrecy [450 U.S. 107, 125] of the ballot, increasing voter participation in primaries, and preventing harassment of voters. 29 But all those interests go to the conduct of the Presidential preference primary - not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates. 30 Therefore, the interests advanced by the State 31 do not justify [450 U.S. 107, 126] its substantial 32 intrusion into the associational freedom of members of the National Party. </s> V </s> The State has a substantial interest in the manner in which its elections are conducted, and the National Party has a substantial interest in the manner in which the delegates to its National Convention are selected. But these interests are not incompatible, and to the limited extent they clash in this case, both interests can be preserved. The National Party rules do not forbid Wisconsin to conduct an open primary. But if Wisconsin does open its primary, it cannot require that Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules. Since the Wisconsin Supreme Court has declared that the National Party cannot disqualify delegates who are bound to vote in accordance with the results of the Wisconsin open primary, its judgment is reversed. </s> It is so ordered. </s> Footnotes [Footnote 1 Rule 2A provides in full: </s> "Participation in the delegate selection process in primaries or caucuses shall be restricted to Democratic voters only who publicly declare their party preference and have that preference publicly recorded. Documentary evidence of a process which complies with this rule shall accompany all state Delegate Selection Plans upon their submission to the National Party. Such rules, when approved by the Compliance Review Commission and implemented shall constitute adequate provisions within the meaning of Section 9 of the 1972 Democratic National Convention mandate." </s> [Footnote 2 Rule 12B of the Delegate Selection Rules for the 1980 Democratic National Convention provides in part: </s> "At all stages of the delegates selection process, delegates shall be allocated in a fashion that fairly reflects the expressed presidential preference or uncommitted status of the primary voters or if there is no binding primary, the convention and caucus participants except that preferences securing less than the applicable percentage of votes cast for the delegates to the National Convention shall not be awarded any delegates." </s> Rule 12D provides in full: </s> "For the purpose of fairly reflecting the division of preferences, the nonbinding advisory presidential preference portion of primaries shall not be considered a step in the delegate selection process." (Emphasis added.) </s> [Footnote 3 Wisconsin's election laws are contained in Wis. Stat., Tit. II, chs. 5-12 (1977). The laws in issue in this case relate to the Presidential preference vote at the spring election, held on the first Tuesday in April in each year in which the Electors for President and Vice President are to be chosen. The relevant provisions are as follows: </s> "5.37 Voting machine requirements. </s> . . . . . </s> "(4) Voting machines may be used at primary elections when they comply with . . . the following provisions: All candidates' names entitled to appear on the ballots at the primary shall appear on the machines; the elector cannot vote for candidates of more than one party, whenever the restriction applies, and an elector who votes for candidates of any party may not vote for independent candidates at the September primary; the elector may secretly select the party for which he or she wishes to vote, or the independent candidates in the case of the September primary; the elector may vote for as many candidates for each office as he or she is lawfully entitled to vote for, but no more. </s> . . . . . </s> "5.60 Spring election ballots. At spring elections the following ballots, when necessary, shall be provided for each ward. </s> . . . . . </s> "(8) BALLOTS FOR PRESIDENTIAL VOTE. There shall be a separate ballot for each party . . . listing the names of all potential candidates of that party . . . and affording, in addition, an opportunity to the voter to [450 U.S. 107, 111] nominate another potential candidate by write-in vote or to vote against the choices offered on the ballot. . . . Each voter shall be given the ballots of all the parties participating in the presidential preference vote, but may vote on one ballot only. </s> . . . . . </s> "8.12 Presidential preference vote. </s> . . . . . </s> "(3) DELEGATES TO NATIONAL CONVENTION. (a) In canvassing the presidential preference vote, the specific candidate for president receiving a plurality in any district or in the state at large is entitled to control all the delegates representing such area . . . . As an alternative to this procedure, the state chairperson of any political party having a presidential preference ballot may inform the board . . . that the delegates from such party are to be certified on the basis of proportional representation. In such case, each presidential candidate shall be apportioned delegates committed to support him or her as nearly as possible in accordance with the percentage of the vote in a district or in the state at large which such candidate receives. . . . </s> . . . . . </s> [8.12 (3) (b) and 8.12 (3) (c) 5 are described in n. 6, infra] </s> . . . . . </s> "(am) No later than the last Monday in April following the presidential preference vote, the board shall notify each state party organization chairperson . . . of the results of the presidential preference vote cast within his or her party, and the number of delegates from each congressional district and from the state at large which are to be pledged to each presidential candidate and the number which are to be uninstructed." </s> [Footnote 4 What characterizes the Wisconsin primary as "open" is that the "voter is not required to declare publicly a party preference or to have that preference publicly recorded." 93 Wis. 2d 473, 485, 287 N. W. 2d 519, 523. See Wis. Stat. 5.60 (8), 10.02 (3) (1977). "The major characteristic of open primaries is that any registered voter can vote in the primary of either party." R. Blank, Political Parties, An Introduction 316 (1980). "The states with open primaries [including Wisconsin] allow any qualified voter to participate in a party primary without designating [450 U.S. 107, 112] party affiliation or preference." D. Ippolito & T. Walker, Political Parties, Interest Groups, and Public Policy: Group Influence in American Politics 175 (1980). </s> [Footnote 5 The State Party limits participation in the selection of delegates to the National Convention to "persons who are willing to subscribe to the general principles of the Democratic Party and do so publicly by executing an appropriate statement to that effect." 93 Wis. 2d, at 486, 287 N. W. 2d, at 524. </s> [Footnote 6 The Convention delegates are bound for a limited period by the outcome of the Presidential preference vote in their respective districts or by the outcome of the total Presidential vote in the State at large. Wis. Stat. 8.12 (3) (b) (1977). Each delegate must pledge to support the candidate to whom the delegate is bound and to vote for that candidate on the first ballot and on any additional ballot, unless the candidate dies or releases the delegate or until the candidate fails to receive at least one-third of the votes authorized to be cast. Thereafter the delegate's vote at the Convention is based on personal preference. 8.12 (3) (c) 5. </s> [Footnote 7 Cf. Rule 12D, at n. 2, supra. </s> [Footnote 8 See n. 1, supra. </s> [Footnote 9 Rule 2B precludes any exemption from Rule 2A requirements. See n. 20 and accompanying text, infra. </s> [Footnote 10 The court reasoned that because a primary voter must vote on only one party's ballot, he effectively declares his affiliation, albeit privately. </s> [Footnote 11 The order of the Wisconsin Supreme Court was as follows: </s> "It is adjudged and declared that the Wisconsin electoral statutes involved in this controversy are constitutional, in full force and effect and binding on the petitioner and respondents; that the presidential preference primary shall be conducted in accordance with the Wisconsin statutes; and that Wisconsin delegates to the Democratic Party national convention shall be apportioned as required by statute in accordance with the results of the presidential preference vote and are not disqualified as delegates solely by reason of the apportionment being determined as required by the Wisconsin statutes." 93 Wis. 2d, at 525-526, 287 N. W. 2d, at 543. </s> [Footnote 12 In oral argument, counsel for the National Party asserted that the Party did not have the time or resources, at that late date, to establish a procedure to select an alternative slate of delegates. </s> [Footnote 13 This case is not moot. The Wisconsin Supreme Court's order is not explicitly limited to the 1980 Convention. The effect of the order "remains and controls future elections." Moore v. Ogilvie, 394 U.S. 814, 816 . In any event, even if the order were clearly limited to the 1980 election year, the controversy would be properly before us as one "capable of repetition, yet evading review." Rosario v. Rockefeller, 410 U.S. 752, 756 , n. 5; Dunn v. Blumstein, 405 U.S. 330, 333 , n. 2. </s> [Footnote 14 Wisconsin's open primary system has a history far longer than that of Rule 2A of the National Party. The open primary was adopted in 1903, and in the words of the Wisconsin Supreme Court, it has "functioned well" ever since. 93 Wis. 2d, at 514, 287 N. W. 2d, at 537. The open primary is employed in Wisconsin not only to express preference for Presidential candidates, but to choose "partisan . . . state and local candidates . . . and an extensive array of nonpartisan officers" as well. Ibid. For a history of Wisconsin's open primary, see Part II of the Wisconsin Supreme Court opinion. Id., at 491-495, 287 N. W. 2d, at 526-528. See also Berdahl, Party Membership in the United States, 36 Am. Pol. Sci. Rev. 16, 39-41 (1942). </s> Wisconsin's open primary apparently is still very popular. On September 5, 1979, by a unanimous vote of its Senate and a 92-1 vote of its Assembly, the Wisconsin Legislature reaffirmed by joint resolution the "firm and enduring commitment of the people of Wisconsin to the open presidential preference primary law as an integral element of Wisconsin's proud tradition of direct and effective participatory democracy." And on September 14, 1979, a bill to create a modified closed primary was defeated in committee. 93 Wis. 2d, at 490, n. 14, 287 N. W. 2d, at 526, n. 14. </s> [Footnote 15 The McGovern/Fraser Commission adopted guidelines to eliminate state party practices that limited the access of rank-and-file Democrats to the candidate selection procedures, as well as those that tended to dilute the influence of each Democrat who took advantage of expanded opportunities to participate. Mandate for Reform, at 12. For example, the guidelines required that the delegates ultimately chosen, and their apportionment to particular candidates, had to reflect the candidate preferences of Democrats participating at all levels of the selection process. Id., at 44. Among other measures recommended by the Commission were (1) the abolition of the unit rule at any stage of the delegate selection process so that majorities could not bind dissenting minorities to vote in accordance with majority wishes; (2) adequate public notice of times and places of meetings related to the delegate selection process; (3) the requirement that ballots indicate the Presidential preference of candidates, or of slates of delegates; and (4) the prohibition of discrimination against racial minorities, women, and young people. Id., at 44-46. See also Segal, Delegate Selection Standards: The Democratic Party's Experience, 38 Geo. Wash. L. Rev. 873, 880-881 (1970). </s> [Footnote 16 The recommendations of the McGovern/Fraser Commission were subsequently incorporated into the Call to the 1972 Convention, which set forth the formal requirements of the delegate selection and nominating processes for the Convention. They were also favorably received by at least one group monitoring their implementation at the 1972 Democratic National Convention. See Americans for Democratic Action, "Let Us Continue . . .", A Report on the Democratic Party's Delegate Selection Guidelines (1973). </s> [Footnote 17 Under Rule 20 state parties must take "provable positive steps to achieve legislative changes to bring the state law into compliance with the provisions of these rules." If a state party takes such provable positive steps but is unable to obtain the necessary legislative changes, the state party may be eligible for a Rule 20 exemption. In 1976, the Wisconsin State Party obtained such an exemption from the 1976 version of Rule 2A. </s> [Footnote 18 A crossover primary is one that permits nonadherent of a party to "cross over" and vote in that party's primary. </s> [Footnote 19 In 1964, crossovers made up 26% of the participants in the Wisconsin Democratic primary. Seven percent of those identifying themselves [450 U.S. 107, 119] as Democrats voted for Governor George Wallace, but 62% of the crossovers voted for him. Three-quarters of Governor Wallace's support in the Democratic primary came from crossover voters. Adamany, Cross-Over Voting and the Democratic Party's Reform Rules, 70 Am. Pol. Sci. Rev. 536, 541 (1976). </s> In 1968, crossovers constituted 28% of the participants in the Wisconsin Democratic primary. Forty-eight percent of those who said they were Democrats voted for Senator Eugene McCarthy, while 39% voted for President Johnson. Of the crossovers, however, 70% voted for Senator McCarthy, while only 14% voted for President Johnson. Participation of crossovers increased Senator McCarthy's margin of victory over President Johnson in Wisconsin by 2 1/2 times. Id., at 539. </s> In 1972, crossovers amounted to 34% of the participants. Fifty-one percent of the self-identified Democrats voted for Senator George McGovern, while only 7% voted for Governor Wallace. Of the crossovers, however, only 33% voted for Senator McGovern, while 29% voted for Governor Wallace. The study figures indicate that two-thirds of Governor Wallace's support in the Democratic primary came from crossover voters. Ibid. The study found that "the participation of crossover voters will . . . alter the composition of national convention delegations." Id., at 540. </s> These data, of course, are relevant only insofar as they help to explain the derivation of Rule 2A. The application of Rule 2A to the delegate selection procedures of any State is not in any way dependent on the pattern or history of voting behavior in that State. </s> [Footnote 20 Rule 2A was the only rule applicable to the 1980 Convention that permitted no exemption. Rule 2B reads in full: "A Rule 20 exemption [see n. 17, supra] shall not be granted from Rule 2A requirements." </s> [Footnote 21 In its answer to the complaint filed by the Wisconsin Attorney General, the National Party stated that it would "recognize only those delegate votes at the 1980 Convention which are the product of delegate selection processes, whether in binding primaries, conventions, or caucuses, which are restricted to Democratic voters who publicly declare their party preference and have that preference publicly recorded." The National Party nowhere indicated that the Wisconsin primary cannot be open; it averred only that any process adopted by the State that binds the National Party must comply with Party rules. And in the joint stipulation of facts before the Wisconsin Supreme Court, the National Party did not declare that Wisconsin must abandon its open primary. The National Party said only that if Wisconsin does not change its primary laws by requiring public party declaration consistent with Party rules, it would be satisfied with some other, Party-run, delegate selection system that did comply with Party rules. This statement is consistent with Rule 2C of the 1980 Delegate Selection Rules, which provides that "[a] State Party which is precluded by state statute from complying with this rule [2A], shall adopt and implement an alternative Party-run delegate selection system which complies with this rule." Cf. Rule 20, at n. 17, supra. </s> [Footnote 22 "Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association's being." L. Tribe, American Constitutional Law 791 (1978). </s> [Footnote 23 The extent to which "raiding" is a motivation of Wisconsin voters matters not. As the Winograd Commission acknowledged, "the existence [450 U.S. 107, 123] of `raiding' has never been conclusively proven by survey research." Openness, Participation, at 68. The concern of the National Party is, rather, with crossover voters in general, regardless of their motivation. </s> [Footnote 24 The appellees similarly argue that Cousins is inapposite. They contend that the decision in Cousins involved the direct election of individual delegates to the National Convention, while this case does not. But appellees, like the Wisconsin Supreme Court, fail to recognize that the problem presented by this case is not the "openness" of Wisconsin's primary in and of itself, but the binding effect of Wisconsin law on the freedom of the National Party to define its own eligibility standards. </s> [Footnote 25 It may be the case, of course, that the public avowal of party affiliation required by Rule 2A provides no more assurance of party loyalty than does Wisconsin's requirement that a person vote in no more than one party's primary. But the stringency, and wisdom, of membership requirements is for the association and its members to decide - not the courts - so long as those requirements are otherwise constitutionally permissible. </s> [Footnote 26 Cf. Ripon Society, Inc. v. National Republican Party, 173 U.S. App. D.C. 350, 368, 525 F.2d 567, 585 (en banc) ("[A] party's choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the protection of the Constitution . . .") (emphasis of the court), cert. denied, 424 U.S. 933 . </s> [Footnote 27 The State Party argues at length that empirical data do not support the National Party's need for Rule 2A. That argument should be addressed to the National Party - which has studied the need for something like Rule 2A for 12 years, see Part II, supra - and not to the judiciary. </s> The State Party also contends that the National Party should not be able to prevent "principled crossovers" from influencing the selection of its candidate, and that the appellants have not presented any evidence that "raiding" has been a problem. These contentions are irrelevant. See n. 23, supra. It is for the National Party - and not the Wisconsin Legislature or any court - to determine the appropriate standards for participation in the Party's candidate selection process. </s> [Footnote 28 Obviously, States have important interests in regulating primary elections, United States v. Classic, 313 U.S. 299 . A State, for example, "has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies." Bullock v. Carter, 405 U.S. 134, 145 . </s> [Footnote 29 The Wisconsin Supreme Court identified the interests of the State as follows: </s> "The state's interest in maintaining a primary and in not restricting voting in the presidential preference primary to those who publicly declare and record their party preference is to preserve the overall integrity of the electoral process by encouraging increased voter participation in the political process and by providing secrecy of the ballot, thereby ensuring that the primary itself and the political party's participation in the primary are conducted in a fair and orderly manner." 93 Wis. 2d, at 512, 287 N. W. 2d, at 536. </s> [Footnote 30 The State contends repeatedly that the issue whether it can prevent the National Party from determining the qualifications of National Convention delegates is not presented. But this contention utterly ignores the Wisconsin Supreme Court order, and Wis. Stat. 8.12 (3) (b), 3 (c) 5 (1977). The State Party acknowledges near the end of its brief that "[p]erhaps the real issue in this case is not whether Wisconsin can conduct an open primary, but rather whether it can make the results of the open primary binding upon Wisconsin delegates to the National Convention." </s> [Footnote 31 The State attempts to add constitutional weight to its claims with the authority conferred on the States by Art. II, 1, cl. 2, of the United States Constitution: "Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which a State may be entitled." See In re Green, 134 U.S. 377, 379 ; McPherson v. Blacker, 146 U.S. 1, 27 -28; Ray v. Blair, 343 U.S. 214 ; Oregon v. Mitchell, 400 U.S. 112, 291 (opinion of STEWART, J., joined by BURGER, C. J., and BLACKMUN, J.); see also Cousins v. Wigoda, 419 U.S. 477, 495 -496 (REHNQUIST, J., concurring in result). Any connection between the process of selecting electors and the means by which political party members in a State associate to elect delegates to party nominating conventions is so remote and tenuous as to be wholly without constitutional significance. In Cousins, despite similar arguments by Illinois, all nine Justices agreed that a State could not constitutionally compel a national political convention to seat [450 U.S. 107, 126] delegates against its will. See id., at 488; id., at 492 (REHNQUIST, J., concurring in result); id., at 496 (POWELL, J., concurring in part and dissenting in part). </s> [Footnote 32 Because the actual selection of delegates is within the control of persons who publicly proclaim their allegiance to the Democratic Party, the Wisconsin Supreme Court apparently deduced that the effects of the open primary on the nominating process were minimal. But the court ignored the fact - the critical fact in the case - that under Wisconsin law state delegates are bound to cast their voters at the National Convention in accord with the open primary outcomes. </s> JUSTICE POWELL, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting. </s> Under Wisconsin law, the Wisconsin delegations to the Presidential nominating conventions of the two major political parties are required to cast their votes in a way that [450 U.S. 107, 127] reflects the outcome of the State's "open" primary election. That election is conducted without advance party registration or any public declaration of party affiliation, thus allowing any registered voter to participate in the process by which the Presidential preferences of the Wisconsin delegation to the Democratic National Convention are determined. The question in this case is whether, in light of the National Party's rule that only publicly declared Democrats may have a voice in the nomination process, Wisconsin's open primary law infringes the National Party's First Amendment rights of association. Because I believe that this law does not impose a substantial burden on the associational freedom of the National Party, and actually promotes the free political activity of the citizens of Wisconsin, I dissent. </s> I </s> The Wisconsin open primary law was enacted in 1903. 1903 Wis. Laws, ch. 451. It was amended two years later to apply to Presidential nominations. 1905 Wis. Laws, ch. 369. See 93 Wis. 2d 473, 492, 287 N. W. 2d 519 527 (1980). As the Wisconsin Supreme Court described in its opinion below: </s> "The primary was aimed at stimulating popular participation in politics thereby ending boss rule, corruption, and fraudulent practices which were perceived to be part of the party caucus or convention system. Robert M. La Follette, Sr., supported the primary because he believed that citizens, should nominate the party candidates; that the citizens, not the party bosses, could control the party by controlling the candidate selection process; and that the candidates and public officials would be more directly responsible to the citizens." Ibid. </s> As noted in the opinion of the Court, the open primary law only recently has come into conflict with the rules of the National Democratic Party. The new Rule 2A was enacted [450 U.S. 107, 128] as part of a reform effort aimed at opening up the party to greater popular participation. This particular rule, however, has the ironic effect of calling into question a state law that was intended itself to open up participation in the nominating process and minimize the influence of "party bosses." </s> II </s> The analysis in this kind of First Amendment case has two stages. If the law can be said to impose a burden on the freedom of association, then the question becomes whether this burden is justified by a compelling state interest. E. g., Bates v. Little Rock, 361 U.S. 516, 524 (1960). The Court in this case concludes that the Wisconsin law burdens associational freedoms. It then appears to acknowledge that the interests asserted by Wisconsin are substantial, ante, at 120-121, but argues that these interests "go to the conduct of the Presidential preference primary - not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates," ante, at 125. In my view, however, any burden here is not constitutionally significant, and the State has presented at least a formidable argument linking the law to compelling state interests. </s> A </s> In analyzing the burden imposed on associational freedoms in this case, the Court treats the Wisconsin law as the equivalent of one regulating delegate selection, and, relying on Cousins v. Wigoda, 419 U.S. 477 (1975), concludes that any interference with the National Party's accepted delegate-selection procedures impinges on constitutionally protected rights. It is important to recognize, however, that the facts of this case present issues that differ considerably from those we dealt with in Cousins. </s> In Cousins, we reversed a determination that a state court could interfere with the Democratic Convention's freedom to [450 U.S. 107, 129] select one delegation form the State of Illinois over another. At issue in the case was the power of the National Party to reject a delegation chosen in accordance with state law because the State's delegate-selection procedures violated party rules regarding participation of minorities, women, and young people, as well as other matters. See id., at 479, n. 1. The state court had ordered the Convention to seat the delegation chosen under state law, rather than the delegation preferred by the convention itself. In contrast with the direct state regulation of the delegate-selection process at issue in Cousins, this case involves a state statutory scheme that regulates delegate selection only indirectly. Under Wisconsin law, the "method of selecting the delegates or alternates [is] determined by the state party organization," Wis. Stat. 8.12 (3) (b) (1977). Wisconsin simply mandates that each delegate selected, by whatever procedure, must be pledged to represent a candidate who has won in the state primary election the right to delegate votes at the Convention. 1 </s> In sum, Wisconsin merely requires that the delegates "vote in accordance with the results of the Wisconsin open primary." Ante, at 126. While this regulation affecting participation in the primary is hardly insignificant, it differs substantially from the direct state interference in delegate selection at issue in Cousins. This difference serves to emphasize the importance of close attention to the way in which a state law is said to impose a burden on a party's freedom of association. Cf. Marchioro v. Chaney, 442 U.S. 191, 199 (1979). All that Wisconsin has done is to require the major parties to allow voters to affiliate with them - for the limited purpose of participation in a primary - secretly, in the privacy [450 U.S. 107, 130] of the voting booth. 2 The Democrats remain free to require public affiliation from anyone wishing any greater degree of participation in party affairs. In Wisconsin, participation in the caucuses where delegates are selected is limited to publicly affiliated Democrats. Brief for Appellee Democratic Party of Wisconsin 19. And, as noted above, the State's law requires that delegates themselves affirm their membership in the party publicly. </s> In evaluating the constitutional significance of this relatively minimal state regulation of party membership requirements, I am unwilling - at least in the context of a claim by one of the two major political parties - to conclude that every conflict between state law and party rules concerning participation in the nomination process creates a burden on associational rights. Instead, I would look closely at the nature [450 U.S. 107, 131] of the intrusion, in light of the nature of the association involved, to see whether we are presented with a real limitation on First Amendment freedoms. </s> It goes without saying that nomination of a candidate for President is a principal function performed by a national political party, and Wisconsin has, to an extent, regulated the terms on which a citizen may become a "member" of the group of people permitted to influence that decision. If appellant National Party were an organization with a particular ideological orientation or political mission, perhaps this regulation would present a different question. 3 In such a case, the state law might well open the organization to participation by persons with incompatible beliefs and interfere with the associational rights of its founders. </s> The Democratic Party, however, is not organized around the achievement of defined ideological goals. Instead, the major parties in this country "have been characterized by a fluidity and overlap of philosophy and membership." Rosario v. Rockefeller, 410 U.S. 752, 769 (1973) (POWELL, J., dissenting). It can hardly be denied that this Party generally has been composed of various elements reflecting most of the American Political spectrum. 4 The Party does take positions [450 U.S. 107, 132] on public issues, but these positions vary from time to time, and there never has been a serious effort to establish for the Party a monolithic ideological identity by excluding all those with differing views. As a result, it is hard to see what the Democratic Party has to fear from an open primary plan. Wisconsin's law may influence to some extent the outcome of a primary contest by allowing participation by voters who are unwilling to affiliate with the Party publicly. It is unlikely, however, that this influence will produce a delegation with preferences that differ from those represented by a substantial number of delegates from other parts of the country. Moreover, it seems reasonable to conclude that, insofar as the major parties do have ideological identities, an open primary merely allows relatively independent voters to cast their lot with the party that speaks to their present concerns. 5 </s> [450 U.S. 107, 133] By attracting participation by relatively independent-minded voters, the Wisconsin plan arguably may enlarge the support for a party at the general election. </s> It is significant that the Democratic Party of Wisconsin, which represents those citizens of Wisconsin willing to take part publicly in Party affairs, is here defending the state law. Moreover, the National Party's apparent concern that the outcome of the Wisconsin Presidential primary will be skewed cannot be taken seriously when one considers the alternative delegate-selection methods that are acceptable to the Party under its rules. Delegates pledged to various candidates may be selected by a caucus procedure involving a small minority of Party members, as long as all participants in the process are publicly affiliated. While such a process would eliminate "crossovers," it would be at least as likely as an open primary to reflect inaccurately the views of a State's Democrats. 6 In addition, the National Party apparently is quite willing to accept public affiliation immediately before primary voting, which some States permit. 7 As Party affiliation becomes this easy for a voter to change in order to participate in a particular primary election, the difference between open and closed primaries loses its practical significance. 8 </s> [450 U.S. 107, 134] </s> In sum, I would hold that the National Party has failed to make a sufficient showing of a burden on its associational rights. 9 </s> B </s> The Court does not dispute that the State serves important interests by its open primary plan. Instead the Court argues that these interests are irrelevant because they do not support a requirement that the outcome of the primary be binding on delegates chosen for the convention. This argument, however, is premised on the unstated assumption that a non-binding primary would be an adequate mechanism for pursuing the state interests involved. This assumption is unsupportable because the very purpose of a Presidential primary, as enunciated as early as 1903 when Wisconsin passed its first primary law, was to give control over the nomination process to individual voters. 10 Wisconsin cannot do this, and still pursue the interests underlying an open primary, without making the open primary binding. 11 </s> [450 U.S. 107, 135] </s> If one turns to the interests asserted, it becomes clear that they are substantial. As explained by the Wisconsin Supreme Court: </s> "The state's interest in maintaining a primary and in not restricting voting in the presidential preference primary to those who publicly declare and record their party preference is to preserve the overall integrity of the electoral process by encouraging increased voter participation in the political process and providing secrecy of the ballot, thereby ensuring that the primary itself and the political party's participation in the primary are conducted in a fair and orderly manner. </s> . . . . . </s> "In guaranteeing a private primary ballot, the open primary serves the state interest of encouraging voters to participate in selecting the candidates of their party which, in turn, fosters democratic government. Historically the primary was initiated in Wisconsin in an effort to enlarge citizen participation in the political process and to remove from the political bosses the process of selecting candidates." 93 Wis. 2d, at 512-513, 287 N. W. 2d, at 536-537 (footnote omitted). </s> The State's interest in promoting the freedom of voters to affiliate with parties and participate in party primaries has been recognized in the decisions of this court. In several cases, we have dealt with challenges to state laws restricting voters who wished to change party affiliation in order to participate in a primary. We have recognized that voters have a right of free association that can be impaired unconstitutionally if such state laws become too burdensome. In Rosario v. Rockefeller, 410 U.S. 752 (1973), the Court upheld a [450 U.S. 107, 136] registration time limit, but emphasized that the law did not absolutely prevent any voter from participating in a primary and was "tied to a particularized legitimate purpose" of preventing "raiding." 12 Id., at 762. In Kusper v. Pontikes, 414 U.S. 51 (1973), we struck down an Illinois law that prevented voters who had participated in one party's primary from switching affiliations to vote in another party's primary during the succeeding 23 months. We concluded that such a law went too far in interfering with the freedom of the individual voter, and could not be justified by the State's interest in preventing raiding. </s> Here, Wisconsin has attempted to ensure that the prospect of public party affiliation will not inhibit voters from participating in a Democratic primary. Under the cases just discussed, the National Party's rule requiring public affiliation for primary voters is not itself an unconstitutional interference with voters' freedom of association. Nader v. Schaffer, 417 F. Supp. 837 (Conn.) (three-judge court), summarily aff'd, 429 U.S. 989 (1976). But these cases do support the State's interest in promoting free voter participation by allowing private party affiliation. The State of Wisconsin has determined that some voters are deterred from participation by a public affiliation requirement, 13 and the validity of that concern is not something that we should second-guess. 14 </s> [450 U.S. 107, 137] </s> III </s> The history of state regulation of the major political parties suggests a continuing accommodation of the interests of the parties with those of the States and their citizens. In the process, "the States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections, the registration and qualifications of voters, and the selection and qualification of candidates." Storer v. [450 U.S. 107, 138] Brown, 415 U.S. 724, 730 (1974). 15 Today, the Court departs from this process of accommodation. It does so, it seems to me, by upholding a First Amendment claim by one of the two major parties without any serious inquiry into the extent of the burden on associational freedoms and without due consideration of the countervailing state interests. </s> [Footnote 1 The delegates selected must be approved by the candidate they are to represent, Wis. Stat. 8.12 (3) (b) (1977), and must pledge that they are affiliated with the candidate's party and will support their candidate until he or she fails to receive at least one-third of the votes authorized to be cast at the Convention, 8.12 (3) (c). </s> [Footnote 2 It is not fully accurate to say, as the Court does, that the "election laws of Wisconsin allow non-Democrats - including members of other parties and independents - to vote in the Democratic primary." Ante, at 110-111. The Wisconsin statute states that "[i]n each year in which electors for president and vice president are to be elected, the voters of this state shall at the spring election be given an opportunity to express their preference for the person to be the presidential candidate of their party." Wis. Stat. 8.12 (1) (1977) (emphasis added). Thus, the act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party. The real issue in this case is whether the Party has the right to decide that only publicly affiliated voters may participate. </s> The situation might be different in those States with "blanket" primaries - i.e., those where voters are allowed to participate in the primaries of more than one party on a single occasion, selecting the primary they wish to vote in with respect to each individual elective office. E. g., Wash. Rev. Code 29.18.200 (1976). Cf. 93 Wis. 2d 473, 504, 287 N.W. 2d 519, 532 (1980) ("[T]he legislature has taken steps to encourage voters to participate in the primary of their party and to discourage a voter of one party from being tempted to vote in the primary of another party. Limiting voters to only one party's ballot discourages voters from voting on a ballot of a party other than their own, because in order to do so they would have to sacrifice their opportunity to participate in their own party's election process"). </s> [Footnote 3 Compare NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 -463 (1958), where the Court was careful to assess the effect of a membership disclosure requirement on associational freedoms in light of the particular nature of the organization involved and the likely responses of those opposed to its aims. </s> [Footnote 4 See R. Horn, Groups and the Constitution 103-104 (1956); A. Campbell, P. Converse, W. Miller, & D. Stokes, The American Voter 183-187, 543 (1960); Developments in the Law: Elections, 88 Harv. L. Rev. 1111, 1166 (1975). The Charter of the National Democratic Party states that it is "open to all who desire to support the party and . . . be known as Democrats." Art. Ten, 1. </s> This perception need not be taken as a criticism of the American party structure. The major parties have played a key role in forming coalitions and creating consensus on national issues. "Broad-based political parties supply an essential coherence and flexibility to the American political [450 U.S. 107, 132] scene. They serve as coalitions of different interests that combine to seek national goals." Branti v. Finkel, 445 U.S. 507, 552 (1980) (POWELL, J., dissenting). As Professor Ranney has written: </s> "[E]ach party has sought winning coalitions by attempting accommodations among competing interests it hopes will appeal to more contributors and voters than will the rival accommodations offered by the opposition party. This strategy, it is conceded, has resulted in vague, ambiguous, and overlapping party programs and in elections that offer the voters choices between personalities and, at most, general programmatic tendencies, certainly not unequivocal choices between sharply different programs. But this . . . is not a vice but a virtue, for it has enabled Americans through all but one area of their history to manage their differences with relatively little violence and to preserve the world's oldest constitutional democratic regime." A. Ranney, Curing the Mischiefs of Faction 201 (1975). </s> [Footnote 5 See Comment, The Constitutionality of Non-Member Voting in Political Party Primary Elections, 14 Willamette L. J. 259, 290 (1978) ("Independents and members of other parties who seek to participate in a party primary will do so precisely because they identify with the community of interest, if indeed one exists. Their very motive for participating in the primary would be to associate with a party presenting `candidates and issues more responsive to their immediate concerns'"), quoting Rosario v. Rockefeller, 410 U.S. 752, 769 (1973) (POWELL, J., dissenting). </s> [Footnote 6 The unrepresentative nature of the delegate selections produced by caucuses is suggested by differences between the results of caucuses and nonbinding primaries held in the same State. See n. 11, infra. </s> [Footnote 7 E. g., Tenn. Code Ann. 2-7-115 (b) (2) (1979). See Developments in the Law, supra n. 4, at 1164. </s> [Footnote 8 As one scholar has stated: </s> "The distinctions between open and closed primaries are easy to exaggerate. Too simple a distinction ignores the range of nuances and varieties within the closed primary states, which after all do account for 82 percent of the states. Take the case of Illinois. Voters do not register as members of a party; at the polling place they simply state their party preference and are given the ballot of that party, no questions asked. Because Illinois voters must disclose a party preference before entering the voting booth, their primary is generally considered `closed.' One would be hard put, however, to argue that it is in operation much different from an open [450 U.S. 107, 134] primary." F. Sorauf. Party Politics in America 206 (4th ed. 1980) (hereinafter Sorauf). </s> [Footnote 9 Of course, the National Party could decide that it no longer wishes to be a relatively nonideological party, but it has not done so. Such a change might call into question the institutionalized status achieved by the two major parties in state and federal law. It cannot be denied that these parties play a central role in the electoral process in this country, to a degree that has led this Court on occasion to impose constitutional limitations on party activities. See Smith v. Allwright, 321 U.S. 649 (1944); Terry v. Adams, 345 U.S. 461 (1953). Arguably, the special status of the major parties is an additional factor favoring state regulation of the electoral process even in the face of a claim by such a party that this regulation has interfered with its First Amendment rights. </s> [Footnote 10 See, e. g., Sorauf 204 ("it was an article of faith among [the Progressives] that to cure the ills of democracy one needed only to prescribe larger doses of democracy"). </s> [Footnote 11 Any argument that a nonbinding primary would be sufficient to allow individual voters a voice in the nomination process is belied by the fact that such a primary often will be ignored in later, nonprimary delegate-selection processes. In 1980, for example, Vermont's nonbinding open primary [450 U.S. 107, 135] produced a lopsided victory, 74.3% to 25.7%, for President Carter over Senator Kennedy. 38 Cong. Q. Weekly Rep. 647 (1980). Party caucuses then produced a state delegation to the Democratic Convention that favored Kennedy over Carter by 7 to 5. Id., at 1472. </s> [Footnote 12 "Raiding" refers to primary voting by members of another party who are seeking to encourage their opponents to select a less desirable or strong candidate. It does not appear to be a problem in Wisconsin. See 93 Wis. 2d, at 506, 287 N. W. 2d, at 533 ("The petitioner and respondents agree that raiding is not a significant problem and that neither the Wisconsin open primary nor the declaration required by Rule 2A prevents `raiding'"). </s> [Footnote 13 A related concern is the prevention of undue influence by a particular political organization or "machine." The Progressives who promoted the idea of a primary election perceived a need to combat political professionals who controlled access to governmental power. See A. Lovejoy, [450 U.S. 107, 137] La Follette and the Establishment of the Direct Primary in Wisconsin 7-8 (1941) ("avowed purpose" was "the elimination of the boss from the American political scene"); id., at 97 ("Because of their faith in the American people, the Progressives sought to cure the ills of democracy with more democracy. . . . For the first time the middleman was eliminated between the people and their representatives"); Sorauf 203-204. The open primary carries this process one step further by eliminating some potential pressures from political organizations on voters to affiliate with a particular party. Although one well may question the wisdom of a state law that undermines the influence of party professionals and may tend to weaken parties themselves, the state interests involved are neither illegitimate nor insubstantial. As noted supra, at 133, the Democratic Party of Wisconsin has filed a brief in support of the validity of the Wisconsin plan. </s> [Footnote 14 A more difficult question in this case is whether Wisconsin can satisfy the second component of the "compelling interest test" - whether it can show that it has no "less drastic way of satisfying its legitimate interests." Kusper v. Pontikes, 414 U.S. 51, 59 (1973). The answer to this questions depends in many cases on how the state interest is conceived. Here, a state interest in protecting voters from the possible coercive effects of public party affiliation cannot be satisfied by any law except one that allows private party affiliation. On the other hand, if the state interest is described more generally, in terms of increasing voter freedom or participation, there may well be less "drastic" alternatives available to Wisconsin. Because of my conclusion that there is no significant burden on the associational freedoms of appellant National Party in this case, and because the Court's analysis does not reach this question, I express no view on whether the State has shown a sufficient interest in this particular method of regulating the electoral process to satisfy a less-drastic-means inquiry. </s> [Footnote 15 The Court concedes that the States have a substantial interest in regulating primary elections. Ante, at 124, n. 28, 126. The power of the States in this area derives from the specific constitutional grant of authority to the States to "appoint, in such Manner as the Legislature thereof may direct" Presidential electors, U.S. Const., Art. II, 1, cl. 2, as well as from the more general regulatory powers of the States. See Cousins v. Wigoda, 419 U.S. 477, 495 -496 (1975) (REHNQUIST, J., concurring in result). </s> [450 U.S. 107, 139]

United States Supreme Court U.S. v. VIRGINIA ELECTRIC CO.(1961) No. 49 Argued: November 10, 1960Decided: April 3, 1961 </s> In connection with the construction of a dam and reservoir on a navigable river, the United States acquired by condemnation a flowage easement over a tract of fast land adjacent to one of its navigable tributaries. That tract included a smaller tract of fast land over which respondent owned a perpetual and exclusive flowage easement, which was destroyed by the Government's appropriation. Held: </s> 1. Respondent is entitled to compensation for the value of its easement which is not attributable to the flow of the stream but to the depreciative impact of the easement upon the nonriparian uses of the land. Pp. 627-631. </s> 2. The value of respondent's easement is the nonriparian value of the subservient land discounted by the improbability of the easement's exercise, and, in assessing this improbability, no weight should be given to the prospect of governmental appropriation. Pp. 631-636. </s> 270 F.2d 707, judgment vacated and cause remanded. </s> Assistant Attorney General Morton argued the cause for the United States. With him on the brief were Solicitor General Rankin, Roger P. Marquis and Harold S. Harrison. </s> Ralph H. Ferrell, Jr. argued the cause for respondent. With him on the brief were George D. Gibson and Francis V. Lowden, Jr. </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> In 1944 Congress authorized the construction of a dam and reservoir on the Roanoke River in Virginia and North Carolina. For purposes of that project the Government [365 U.S. 624, 625] acquired by condemnation a flowage easement over 1840 acres of fast lands adjacent to the Dan River, a navigable tributary of the Roanoke. This 1840-acre tract was part of a 7400-acre estate. The respondent owned a perpetual and exclusive flowage easement over 1540 acres within the easement taken by the Government. The only question presented by this case concerns the compensation awarded to the respondent for the destruction of its easement. </s> The respondent's easement had been purchased from the owner of the estate and had been conveyed to the respondent's predecessors in title by various deeds over a period of many years, beginning in 1907. Along with the easement the fee owner had also expressly granted by deed the release of all claims for damage to the residue of the estate resulting from the exercise of rights under the easement. </s> In 1951, after extended negotiations, the owner of the estate agreed to convey to the Government a flowage easement over the 1840-acre tract in return for the payment of one dollar. 1 This agreement was expressly made subject to "such water, flowage, riparian and other rights, if any," as the respondent owned in the tract. The agreement also provided that the Government could elect to acquire its easement by a condemnation proceeding, in which event the agreed consideration of one dollar would be "the full amount of the award of just compensation inclusive of interest." Exercising this election, the Government instituted condemnation proceedings in the District Court to acquire a flowage easement over the 1840 acres in question, depositing one dollar as the estimated just compensation for the property to be taken. [365 U.S. 624, 626] The fee owner acknowledged the settlement contract previously made and agreed to the one dollar compensation. The respondent, whose easement was to be destroyed, intervened in the proceedings to contest "the issue of just compensation." </s> The District Court made a substantial award to the respondent as compensation for the taking of its flowage easement. The judgment was affirmed by the Court of Appeals for the Fourth Circuit, on the authority of that court's decision in United States v. Twin City Power Co., 215 F.2d 592. 218 F.2d 524. After the judgment in the Twin City case was reversed by this Court, 350 U.S. 222 , we vacated the judgment in this litigation and remanded the case to the Court of Appeals for further consideration in the light of our Twin City decision. 350 U.S. 956 . The Court of Appeals in turn remanded the case to the District Court with instructions that, in computing the amount of compensation to be awarded for the taking of the respondent's easement, there should be eliminated "any element of value arising from the availability of the land for water power purposes due to its being situate on a navigable stream." 235 F.2d 327, 330, rehearing denied 237 F.2d 165. </s> On remand the District Court proceeded in accordance with these directions. Commissioners were appointed and given detailed instructions to follow in computing the compensation to be awarded the respondent. These instructions included an explicit direction to exclude from the computation any element of value arising from the availability of the land for water power purposes attributable to its location on a navigable stream. 2 The Commissioners found that, under the criteria imposed by the [365 U.S. 624, 627] court, the value of the respondent's easement was $65,520. The district judge accepted these findings, and in accordance with them awarded the respondent that sum. On appeal the judgment was affirmed. 270 F.2d 707. </s> We granted certiorari to consider the Government's claim that the respondent's easement had no compensable value when appropriated by the United States. 362 U.S. 947 . For the reasons that follow we reject that argument in the extreme form it has been presented, but we have concluded that the judgment must nonetheless be set aside for a redetermination of the compensation award. </s> It is indisputable, as the Government acknowledges, that a flowage easement is "property" within the meaning of the Fifth Amendment. See United States v. Welch, 217 U.S. 333 ; Panhandle Co. v. Highway Comm'n, 294 U.S. 613, 618 ; Western Union Tel. Co. v. Penn. R. Co., 195 U.S. 540, 570 . Similarly, there can be no question that the Government's destruction of that easement would ordinarily constitute a taking of property within the meaning of the Fifth Amendment. See Pumpelly v. Green Bay Co., 13 Wall. 166, 181; United States v. Cress, 243 U.S. 316, 327 -329; United States v. Kansas City Ins. Co., 339 U.S. 799, 809 -811. Nevertheless, it is argued that the Government cannot be required to pay compensation for the destruction of the easement in the present case because the easement was subject to the overriding navigational servitude of the United States. </s> This navigational servitude - sometimes referred to as a "dominant servitude," Federal Power Comm'n v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 , or a "superior navigation easement," United States v. Grand River Dam Authority, 363 U.S. 229, 231 - is the privilege to appropriate without compensation which attaches to the exercise of the "power of the government to control and [365 U.S. 624, 628] regulate navigable waters in the interest of commerce." United States v. Commodore Park, 324 U.S. 386, 390 . The power "is a dominant one which can be asserted to the exclusion of any competing or conflicting one." United States v. Twin City Power Co., 350 U.S. 222, 224 -225; United States v. Willow River Co., 324 U.S. 499, 510 . A classic description of the scope of the power and of the privilege attending its exercise is to be found in the Court's opinion in United States v. Chicago, M., St. P. & P. R. Co.: </s> "The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high-water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. [Citing cases.] The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject." 312 U.S. 592 , 596-597. </s> Since the privilege or servitude only encompasses the exercise of this federal power with respect to the stream itself and the lands beneath and within its high-water mark, the Government must compensate for any taking of fast lands which results from the exercise of the power. This was the rationale of United States v. Kansas City Ins. Co., 339 U.S. 799 , where the Court held that when a navigable stream was raised by the Government to its ordinary high-water mark and maintained continuously at that level in the interest of navigation, the Government was liable "for the effects of that change [in the water level] upon private property beyond the bed of the stream." 339 U.S., at 800 -801. See also United States v. Willow River Co., 324 U.S. 499, 509 . [365 U.S. 624, 629] </s> But though the Government's navigational privilege does not extend to lands beyond the high-water mark of the stream, the privilege does affect the measure of damages when such land is taken. In United States v. Twin City Power Co., 350 U.S. 222 , we held that the compensation awarded for the taking of fast lands should not include the value of the land as a site for hydroelectric power operations. It was pointed out that such value, derived from the location of the land, is attributable in the end to the flow of the stream - over which the Government has exclusive dominion. 350 U.S., at 225 -227. Thus, just as the navigational privilege permits the Government to reduce the value of riparian lands by denying the riparian owner access to the stream without compensation for his loss, United States v. Commodore Park, 324 U.S. 386, 390 -391; Scranton v. Wheeler, 179 U.S. 141, 162 -165; Gibson v. United States, 166 U.S. 269, 276 , it also permits the Government to disregard the value arising from this same fact of riparian location in compensating the owner when fast lands are appropriated. </s> The Government's argument is that the rationale of Twin City makes payment of any compensation for the destruction of the respondent's easement unnecessary in the present case. This argument is based on the theory that the respondent's easement had no value save in conjunction with water power development. The respondent acknowledges that the courts below were correct in excluding any value of the easement derived from the availability of the land for water power purposes. It argues, however, that the easement had other value, derived from uses of the land not dependent upon the flow of the stream. If the easement did have such value, then the Government must compensate for the easement's destruction under the rule of Kansas City Ins. Co., supra, since the easement was a property right in fast lands. The basic issue is thus whether the respondent's easement [365 U.S. 624, 630] might be found to have value other than in connection with the flow of the stream. </s> We think such a finding might be warranted. The evidence was that the highest and best use of the servient land (unconnected with riparian uses) was for agriculture, timber and grazing purposes. The respondent had an exclusive and perpetual property right to destroy those uses and the value which they created. This right was an attribute of a transferable, commercial easement with intrinsic value. It had been acquired for a valuable consideration. It had a marketability roughly commensurate with the marketability of the subservient fee. Only an adventurous purchaser would have acquired the underlying fee interest in the 1540-acre tract for any purpose whatever, without also purchasing the easement. </s> If easements to flood fast lands were worthless as a matter of law when taken by the United States, it would follow that when the government took such an easement from the owner of an unencumbered tract of land, the Government would have to pay the owner nothing. That is not the law. United States v. Kansas City Ins. Co., 339 U.S. 799 . The Government itself acknowledges that it must pay such a landowner for the value of the property which does not stem from the flow of the stream, the value based upon the nonriparian uses of the property. </s> It follows that the Government must likewise compensate the easement owner for that aspect of the easement's value which is attributable not to water power, but to the depreciative impact of the easement upon the nonriparian uses of the property. The valuation of an easement upon the basis of its destructive impact upon other uses of the servient fee is a universally accepted method of determining its worth. See, e. g., Olson v. United States, 292 U.S. 246, 253 ; Karlson v. United States, 82 F.2d 330, 337; Jahr, Eminent Domain, 252 and n. 6 (collecting cases); 4 Nichols, Eminent Domain, 12.41 2., n. 27 [365 U.S. 624, 631] (collecting cases) (1951 ed.); 1 Orgel, Valuation under Eminent Domain, 106, at 454 (2d ed.); Saxon, Appraising Flowage Easements, 24 Appraisal Journal 490, 494. </s> But the Government contends that the market value of the easement to those interested in developing the nonriparian uses of the fee can be ignored. It is claimed that, despite the general principle of indemnification underlying the Fifth Amendment, see Olson v. United States, 292 U.S. 246, 255 , no compensation should be allowed for this value because it represents the "destructive function" of the easement. Cf. Roberts v. New York, 295 U.S. 264, 283 . It is argued that equitable principles prohibit compensation for such value. But equity works the other way. At the very least, the Government's argument would mean, in a case like this one, that compensation could be denied the fee owner because he had already conveyed the flowage easement, cf. United States v. Sponenbarger, 308 U.S. 256, 265 -266, and denied the owner of the easement because it was valueless against condemnation by the United States. The Government would thus destroy the entire property interest in fast lands without compensation. "The word `just' in the Fifth Amendment evokes ideas of `fairness' and `equity' . . . ." United State v. Commodities Corp., 339 U.S. 121, 124 ; see Monongahela Navigation Co. v. United States, 148 U.S. 312, 324 -326. The result contended for by the Government would hardly comport with those standards. The District Court and the Court of Appeals were correct in holding that a flowage easement over fast lands adjoining a navigable stream is property which cannot be appropriated without compensating the owner. </s> The remaining question is whether the District Court's method of determining the amount of compensation to be awarded was correct. The court was clearly right in excluding all value attributable to the riparian location of the land. United States v. Twin City Power Co., [365 U.S. 624, 632] 350 U.S. 222 . There can be no quarrel either with the court's procedure in directing the Commissioners to appraise first the easement taken by the Government, and then to apportion its value between the respondent and the owner of the subservient fee. 3 United States v. Dunnington, 146 U.S. 338, 343 -345, 350-354. And the court adopted an acceptable method of appraisal, indeed the conventional method, in valuing what was acquired by the Government by taking the difference between the value of the property before and after the Government's easement was imposed. See Olson v. United States, 292 U.S. 246, 253 . 4 For these reasons we think that the court followed an entirely acceptable procedure in valuing the totality of what was appropriated by the Government. </s> In apportioning the respondent's share of this value, however, we think that the court erred. 5 The court [365 U.S. 624, 633] apparently was of the view that the subservient fee interest in the 1540 acres was without value, and accordingly awarded to the respondent the entire value of what the Government appropriated in that acreage. The respondent was thus compensated as though it were the owner, not of an easement, but of an unencumbered fee, as the Court of Appeals recognized. 270 F.2d, at 712. The record does not support such an apportionment. </s> The guiding principle of just compensation is reimbursement to the owner for the property interest taken. "He is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more." Olson v. United States, 292 U.S. 246, 255 . In many cases this principle can readily be served by the ascertainment of fair market value - "what a willing buyer would pay in cash to a willing seller." United States v. Miller, 317 U.S. 369, 374 . See United States v. Commodities Corp., 339 U.S. 121, 123 ; United States v. Cors, 337 U.S. 325, 333 . But this is not an absolute standard nor an exclusive method of valuation. See United States v. Commodities Corp., supra, at 123; United States v. Cors, supra, at 332; United States v. Miller, supra, at 374-375; United States v. Toronto Nav. Co., 338 U.S. 396 . </s> The record in the present case, as might be expected, contains no evidence of a market in flowage easements of the type here involved. In the absence of such evidence, the court valued the flowage easement as the equivalent of the value of the servient lands for agricultural, forestry, or grazing use. The court thus ascribed a maximum value to the respondent's easement, a value not supported by the record. </s> We think the correct approach to the problem of valuation in a case of this kind was formulated by the Court of Appeals for the Fifth Circuit in Augusta Power [365 U.S. 624, 634] Co. v. United States, 278 F.2d 1. The basic issues in that case were virtually indistinguishable from those presented here. 6 We are content to adopt the language of Judge Rives' opinion with respect to the standard to be followed in valuing flowage easements of this character: </s> "If [the] Power Company had been successful in assembling the necessary lands, and in securing approval of the Federal Power Commission, and thereafter had actually exercised its easements by permanently flooding the lands, their value for agricultural and forestry purposes would have been destroyed. If, with that status, the United States had condemned the lands, the compensation due would be payable to [the] Power Company. That compensation would not include the hydroelectric power value, but it would embrace [the Power Company's] property right to destroy the value of the lands for agricultural and forestry purposes. </s> "At the other extreme, if factors such as difficulty of assemblage of all necessary lands, the increasing economic advantage of steam plants over hydroelectric plants, the need for additional power in the particular area, etc., had made it certain that the flowage easements would never be exercised by the . . . Power Company or its assigns, excluding the United States, then such compensation as might be due would be payable to the owners of the fee title and nothing to the . . . Power Company. [365 U.S. 624, 635] </s> "Between the two extremes just illustrated, the respective values of the fee and of the easement would fluctuate from time to time depending on the probability or improbability of actual exercise of the easement by the . . . Power Company or its assigns. If all interested parties were before the Court, the maximum which the United States would be required to pay would be the value of the lands, not including their value for hydroelectric power purposes. That is, however, a maximum, and not necessarily the measure of what the United States would have to pay under any and all circumstances. . . . </s> . . . . . </s> ". . . It seems to us that the maximum compensation payable for the flowage easement under any conceivable circumstances is so much of the value of the lands for agricultural and forestry purposes and for any other uses, not including hydroelectric power value, as the easement owner has a right to destroy or depreciate. That maximum is more simply expressed in the criterion adopted by the Commission, i. e., `the difference in the value of the land with and without the flowage easement.' Subject to that maximum, the actual measure of compensation payable for the flowage easement is the value of the easement to its owner. `The question is, What has the owner lost? not, What has the taker gained?' 1 Orgel on Valuation Under Eminent Domain, P. 352." Augusta Power Co. v. United States, 278 F.2d 1, 4-5. (Footnotes omitted.) </s> In a word, the value of the easement is the nonriparian value of the servient land discounted by the improbability of the easement's exercise. It is to be emphasized that in assessing this improbability, no weight should be given [365 U.S. 624, 636] to the prospect of governmental appropriation. The value of the easement must be neither enhanced nor diminished by the special need which the Government had for it. United States v. Cors, 337 U.S. 325, 332 -334; United States v. Miller, 317 U.S. 369 ; Olson v. United States, 292 U.S. 246, 261 ; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 76 . The court must exclude any depreciation in value caused by the prospective taking once the Government "was committed" to the project. United States v. Miller, supra, at 376-377; see United States v. Cors, supra, at 332. Accordingly, the impact of that event upon the likelihood of actual exercise of the easement cannot be considered. As one writer has pointed out, "[i]t would be manifestly unjust to permit a public authority to depreciate property values by a threat . . . [of the construction of a government project] and then to take advantage of this depression in the price which it must pay for the property" when eventually condemned. 1 Orgel, Valuation under Eminent Domain, 105, at 447 (2d ed.); see Congressional School of Aeronautics v. State Roads Comm'n, 218 Md. 236, 249-250, 146 A. 2d 558, 565. </s> The judgment is vacated, and the case remanded to the District Court for further proceedings consistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 The record indicates that the owner was willing to accept this nominal amount because of her interest in developing the balance of the estate as a wild game preserve, a use which presumably would be enhanced by a contiguous artificial lake. </s> [Footnote 2 The detailed instructions were otherwise based upon a traditional method of valuing what the Government appropriated, i. e., the difference in the value of the servient land before and after the Government's easement was imposed. </s> [Footnote 3 The owner of the fee, having agreed to convey her interest for one dollar, would, of course, not receive any larger amount apportioned to her interest. See Albrecht v. United States, 329 U.S. 599 . </s> [Footnote 4 In determining the value of the Government's easement, the court assumed its proportions to be limited to 1540 acres, rather than to the 1840 acres actually taken. This was entirely permissible. Since the owner of the fee was making no claim, the only objective of the proceedings in the District Court was to determine the amount of compensation to be awarded the respondent. It was quite logical, therefore, to appraise only that part of the Government's easement which coincided with the respondent's property interest, and thereafter to apportion to the respondent its share of what was taken by that much of the Government's appropriation. </s> [Footnote 5 The court did not err, however, in including in the award to the respondent an amount for damages to the residue of the estate. The respondent was the record owner of the right to damage the residue, a right which the owner had expressly conveyed by separate deed for a valuable consideration. This was a property right in the residue, measurable by a monetary award to cover damages to the same. The amount of this portion of the award would depend upon the probability of the respondent's easement being exercised. See accompanying text, infra. </s> [Footnote 6 In that case the Government had also argued upon the basis of our Twin City decision, that a private flowage easement over fast lands is valueless as a matter of law when taken by the Government for navigational purposes. The argument was unambiguously rejected: "Very clearly, the United States is in error when it claims . . . that it `has a dominant servitude which it can exercise in its discretion and without compensation.'" 278 F.2d, at 4. </s> MR. JUSTICE DOUGLAS, concurring. </s> If the 1,840 acres in question lay between low and high water, the United States by keeping the water level at the ordinary high-water contour would not in my view appropriate any private property. For that is use of the bed of the stream pursuant to the navigation servitude. Most of our cases deal with that. It was in that domain [365 U.S. 624, 637] that United States v. Kansas City Ins. Co., 339 U.S. 799 , arose. </s> If the 1,840 acres were a dam site, any of their value for such a purpose would be noncompensable within the ruling of United States v. Twin City Power Co., 350 U.S. 222 . Dam-site value is water-power value. And the flow of the stream in its natural state or through a structure that is low or high provides "a head of water" (United States v. Willow River Co., 324 U.S. 499, 502 ) that often has great value. But when it is in a navigable stream, it is not a property right subject to private ownership and compensation under the Fifth Amendment. There is "no private property in the flow" of this navigable stream. United States v. Appalachian Power Co., 311 U.S. 377, 427 . </s> Yet if the Federal Government builds a dam that raises the water above the ordinary high-water mark by a foot, by a hundred feet, or by five hundred feet, it asserts dominion over property not within its navigational servitude. As we said in United States v. Willow River Co., supra, 509, "High-water mark bounds the bed of the river. Lands above it are fast lands and to flood them is a taking for which compensation must be paid." </s> It is in the latter domain that the present controversy lies. The flowage rights being condemned are rights to flood a part of the 1,840-acre tract that lies above the "usual water line" which I understand to mean land above the ordinary high-water mark. </s> Whatever may be the reason why this particular interest in the uplands was acquired, the owner stands in the shoes of his predecessor in title. The owner of the easement is entitled, as the Court holds, to no water-power value. The owner is, in other words, entitled to nothing that gains value from the flow of the stream, from any head of water, or from the strategic location of his land [365 U.S. 624, 638] for hydroelectric development of the river. But the owner of the easement and the owner of the subservient fee have all the other parts of the bundle of rights that represent "property" within the meaning of the Fifth Amendment. </s> Hence, I join the opinion of the Court. </s> MR. JUSTICE WHITTAKER, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK join, dissenting. </s> In the hope that it might eventually acquire from the Federal Government a license to construct a power dam across a navigable river, the power company acquired, by conveyances from the fee owners, easements permanently to flood 1,540 acres of fast lands adjacent to the river. It did not own any other estate or interest in those lands, and the exercise of its easement to flood them was, of course, necessarily subject to the prior issuance of a federal license authorizing the private damming of the river, for without such a license the power company could not dam the river, see 4 of the Federal Power Act, 41 Stat. 1065, 16 U.S.C. 797, and thus back its waters upon those lands, and it had no right to use the lands for any other purpose. </s> No federal license to dam the river at or near this point was ever issued. Instead, the Federal Government itself determined to construct a power dam at this point in the river, and as a necessary consequence to inundate these lands as a part of the resulting reservoir. To that end, it brought this condemnation action against the power company, and therein filed its declaration of taking, and took, the latter's easement to back flow these lands, and the question here is: What value, if any, did that easement have to the power company at the time the Government took it? </s> We think that, as a matter of fact and of law, it did not have any value whatever at that time. This is so because: (1) The sole and only right the power company ever had [365 U.S. 624, 639] in these lands was the right to dam and back the river's waters upon them; (2) the exercise of that right was always contingent and dependent upon the prior issuance of a federal license authorizing the private damming of the river (16 U.S.C. 797 (e)), for the Government's power over the flow of a navigable stream "is a dominant one which can be asserted to the exclusion of any competing or conflicting one," United States v. Twin City Power Co., 350 U.S. 222, 224 -225; and (3) when the Government determined to construct the power dam and appurtenant facilities for its own benefit, it necessarily "displace[d] all competing interests and appropriate[d] the entire flow of the river for the declared public purpose," United States v. Twin City Power Co., supra, at 225. (4) Therefore, at the time the Government took this easement, there was no possibility that the power company could ever dam and back the river's waters upon these lands and, inasmuch as it had no estate in or right to use the lands for any other purpose, it must follow that the easement was wholly without value to the power company for any purpose at the time the Government took it. </s> However, the Court, after adverting to the power company's argument that "the easement had other value, derived from uses of the land not dependent upon the flow of the stream," says: "We think such a finding might be warranted." It finds such value to exist in the "right to destroy [agricultural, timber and grazing] uses and the value which they created." </s> But the right to "destroy" agricultural uses, although a proper consideration in determining the damages to be paid to the owner of the unencumbered fee when an easement to flow is being condemned and taken from him, United States v. Kansas City Ins. Co., 339 U.S. 799 ; Olson v. United States, 292 U.S. 246, 253 -254, is not a thing of value - even of recognizable "hold up" value - to the owner of the easement, United States v. Chandler-Dunbar [365 U.S. 624, 640] Co., 229 U.S. 53, 79 -80, except for the authorized flooding use, or possibly as against the owner of the subservient fee who might be willing to pay for the riddance of the easement and restoration of his original right to make agricultural uses of the land. See Roberts v. New York City, 295 U.S. 264, 282 -283. At all events, the clincher is that any right of the power company to "destroy" agricultural uses of these lands consisted solely of its right to dam and back the river's waters upon them, and when the Government determined to construct the dam for its own benefit even that nebulous "right" was gone. Hence, the easement had no possible value - not even a nuisance value - to the power company at the time the Government took it. </s> It is settled that the "just compensation" required by the Fifth Amendment to be paid for the taking of private property for public use is the value at the very time of the taking to the person from whom taken. "The value should be fixed as of the date of the proceedings and with reference to the loss the owner sustains, considering the property in its condition and situation at the time it is taken and not as enhanced by the purpose for which it was taken. Kerr v. Park Commissioners, 117 U.S. 379, 387 ; Shoemaker v. United States, 147 U.S. 282, 304 , 305." United States v. Chandler-Dunbar Co., supra, at 76. </s> The Fifth Amendment "merely requires that an owner of property taken should be paid for what is taken from him. . . . And the question is what has the owner lost, not what has the taker gained." Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 . See also United States v. Twin City Power Co., supra, at 228. At the time of this taking, the Government had determined to build the dam itself, thus precluding any possibility that the power company could ever dam and back the river's waters upon these lands, and, inasmuch as it had no right [365 U.S. 624, 641] to use them for any other purpose, it must follow that the easement had no possible value to the power company at the time the Government took it. Surely "the Government cannot be justly required to pay for an element of value which did not [then] inhere in [the easement]." United States v. Chandler-Dunbar Co., supra, at 76. </s> Nor does the Fifth Amendment contemplate a disregard of separate estates and interests in land. It contemplates only that the condemnee shall be paid "just compensation" for the particular estate or interest that he owned and that was taken from him. In Boston Chamber of Commerce v. Boston, supra, the city condemned for public street purposes a part of a tract of land owned in fee by the Chamber of Commerce, but over a large portion of the part condemned a wharf company owned "an easement of way, light and air." The Chamber of Commerce and the wharf company agreed between themselves to claim, and they sought, damages to both estates "in a lump sum." If this could be done, it was agreed that the estate, considered as the sole unencumbered estate of a single person, was worth 12 times more than if the damage should be assessed according to the condition of the title at the time. The city's contention that the several estates should be separately valued was sustained by the trial court, and this Court, speaking through Mr. Justice Holmes, affirmed, saying: </s> "But the Constitution does not require a disregard of the mode of ownership - of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. . . . And the question is what has the owner lost, not what has the taker gained." 217 U.S., at 195 . [365 U.S. 624, 642] </s> The Government cannot here, just as the city could not there, "be made to pay for a loss of theoretical creation, suffered by no one in fact," id., at 194, for there is "no justice in [requiring the Government to pay] for a loss suffered by no one in fact." United States v. Chandler-Dunbar Co., supra, at 76. </s> Here the power company rests solely upon a claimed right to back the river's waters upon these lands. It thus necessarily depends upon and claims a right in and to use the waters of the river for that purpose. This Court held in the Twin City case, supra, that the owner of adjoining fast lands has no interest in the waters of a navigable river, and that those waters do not, as against the Government, attribute to the value of such lands. It said: </s> "If the owner of the fast lands can demand water-power value as part of his compensation, he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. The right has value or is an empty one dependent solely on the Government. What the Government can grant or withhold and exploit for its own benefit has a value that is peculiar to it and that no other user enjoys." 350 U.S., at 228 . </s> The Government, by determining to exploit its stream for its own benefit, "displace[d] all competing interests and appropriate[d] the entire flow of the river for the declared public purpose." Id., at 225. In these circumstances, "[t]o require the United States to pay for this water-power value would be to create private claims in the public domain." Id., at 228. </s> The Twin City and Chandler-Dunbar cases, supra, seem clearly to require the conclusion, on the facts here, that the easement to flood these lands had no value to the power company at the time the Government took it. [365 U.S. 624, 643] </s> It was its failure to obtain a federal license to dam the river - not the taking of its easement to flow - that hurt the power company, for once the Government determined to construct the power dam for its own use and benefit no possibility remained that the power company could ever use the easement, and hence its entire value was gone. </s> To the Court's observation that "the Government's argument would mean, in a case like this one, that compensation could be denied the fee owner because he had already conveyed the flowage easement, . . . and denied the owner of the easement because it was valueless against condemnation by the United States," the law requires us to say: Exactly so. The fee owners had sold and conveyed, for consideration satisfactory to them, the right permanently to flood these lands and no longer owned any interest in that estate. Indeed, they claim none. That estate in these lands was not taken by the Government from them. Not having taken anything from the fee owners, the Government does not owe them "just compensation" for anything. This also demonstrates the Court's further error in remanding the case for "apportionment" of the "damages" between the owner of the easement and the owners of the fee. In no event could there be anything to apportion to the fee owners. What the Government took was the easement. It belonged solely to the power company, and if it had any value at the time it was taken by the Government, that value belonged solely to the power company. But the easement had no value to the power company at the time it was taken by the Government. The power company's sole estate in these lands was an easement to back the river's waters upon them. The exercise - and hence the value - of that easement was always contingent upon the prior issuance of a federal license authorizing the private damming [365 U.S. 624, 644] of the river. No such license was ever issued. Instead, the Government determined to construct the dam and appurtenant facilities for its own benefit. This left no possibility that the power company could ever dam and back the river's waters upon these lands, and inasmuch as it had no right to use them for any other purpose, it seems clearly to follow that the easement was wholly without value to the power company for any purpose at the time the Government took it. </s> It is of course true, as already stated, that if the Government had taken the right to flow these lands from the owner of the unencumbered fee, the law would require it to pay his damages resulting from that deprivation of his right to make agricultural and similar surface uses of these lands. United States v. Kansas City Ins. Co., supra. From that premise it is argued that the owner of the unencumbered fee, "stands in the shoes of his predecessor in title" and is thus entitled to like damages from the Government when it takes that easement from him. But that premise is erroneous. The error lies in the obvious fact that the power company never acquired or owned any right to make agricultural uses of these lands. Hence it did not suffer, and is not entitled to recover, any damages for the destruction of such uses. Quite distinguishable from an unencumbered fee, the only estate of the power company in these lands was the right to store the river's waters upon them. Once the Government determined to construct the power dam for its own use no possibility remained that the power company could ever use the lands for that purpose and, having no right to use the lands for any other purpose, it must follow that the easement was wholly without value to the power company for any purpose at the time the Government took it. [365 U.S. 624, 645] </s> We believe that the Fifth Amendment's command that "private property [shall not] be taken for public use, without just compensation" should be liberally construed in favor of the condemnee, but that does not mean that the Government should be required to pay something for nothing. </s> For these reasons, we think the judgment should be reversed with directions to enter judgment for the Government. </s> [365 U.S. 624, 646]

United States Supreme Court GEORGE W. BUSH v. PALM BEACH COUNTY CANVASSING BOARD, et al.(2000) No. 00-836 Argued: Decided: December 4, 2000

United States Supreme Court WOOD v. GEORGIA(1981) No. 79-6027 Argued: November 4, 1980Decided: March 4, 1981 </s> Petitioners, former employees of an "adult" movie theater and bookstore, were convicted of distributing obscene materials in violation of a Georgia statute and received fines and jail sentences but were placed on probation on the condition that they make monthly installment payments toward the satisfaction of the fines. When petitioners failed to make the payments, a probation revocation hearing was held. Petitioners, who had by that time left their jobs in the "adult" establishments, offered evidence of their inability to make the payments and stated that they had expected their former employer to pay the fines for them. When petitioners were unable to make up their arrearages, the Georgia trial court denied their motion to modify the probation conditions and ordered petitioners to serve the remaining portions of their jail sentences. After the Georgia Court of Appeals affirmed, this Court granted a writ of certiorari to decide whether it is constitutional under the Equal Protection Clause to imprison a probationer solely because of his inability to make installment payments on fines. </s> Held: </s> This is an inappropriate case in which to decide the equal protection question. Since the record suggests that petitioners may be in their present predicament because of their counsel's divided loyalties, a possible due process violation is apparent, and the case is remanded for further findings concerning such possible violation. Pp. 264-274. </s> (a) The transcript of the revocation hearing shows that petitioners understood that their former employer would provide legal assistance if they should face legal trouble as a result of their employment, would pay any fines, and would post any necessary bonds. Petitioners have been represented since the time of their arrest by a single lawyer, who was paid by the employer and who posted bonds in this case and paid other fines when each of the petitioners was arrested a second time. If petitioners' counsel was serving the employer's interest in obtaining an equal protection ruling that offenders cannot be jailed for failure to pay fines that are beyond their means, which could only occur if petitioners received fines beyond their own means and then risked jail by failing to pay, this conflict in goals may have influenced the trial court's decisions to impose large fines and to revoke the probations rather than modify the conditions thereof. Pp. 264-268. [450 U.S. 261, 262] </s> (b) If counsel was influenced in his basic strategic decisions by the employer's interest, petitioners' due process right to representation free from conflicts of interest was not respected at the revocation hearing, or at earlier stages of the proceedings. The possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further. If on remand the court finds that an actual conflict of interest existed at the time of the probation revocation or earlier, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing untainted by a legal representative serving conflicting interests. Pp. 268-274. </s> 150 Ga. App. 582, 258 S. E. 2d 171, vacated and remanded. </s> POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 274. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 274. STEWART, J., filed an opinion concurring in part and dissenting in part, post, p. 275. WHITE, J., filed a dissenting opinion, post, p. 275. </s> Glenn Zell argued the cause and filed a brief for petitioners. </s> John W. Dunsmore, Jr., Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, and John C. Walden, Senior Assistant Attorney General. </s> JUSTICE POWELL delivered the opinion of the Court. </s> Petitioners in this case are three persons who were convicted of distributing obscene materials and sentenced to periods of probation on the condition that they make regular installment payments toward the satisfaction of substantial fines. Because they failed to make these payments, their probations were revoked by the Georgia court, and they are now claiming that these revocations discriminated against them on the basis of wealth in violation of the Equal Protection Clause of the Fourteenth Amendment. Since the record in this case [450 U.S. 261, 263] suggests that petitioners may be in their present predicament because of the divided loyalties of their counsel, we have concluded that it is inappropriate to reach the merits of this difficult equal protection issue. Instead, we remand this case for further findings concerning a possible due process violation. </s> I </s> Petitioners Tante and Allen were working, respectively, as the projectionist and ticket taker at the Plaza Theatre in Atlanta when they were arrested and charged with two counts of distributing obscene materials in violation of Ga. Code 26-2101 (1978). About four months later, petitioner Wood was arrested and charged with two violations of the same provision after he sold two magazines to a policeman while working at the Plaza Adult Bookstore. There is no evidence that any of these employees owned an interest in the businesses they served or had any managerial responsibilities. </s> Tante and Allen were tried together and found guilty on both counts by a jury. A separate jury convicted Wood on both counts. All three were then sentenced by the same judge. Tante and Allen each received a fine of $5,000 and two concurrent jail sentences of 12 months, but they were allowed immediate probation. Wood received two $5,000 fines and two consecutive jail sentences of 12 months; he also was placed on probation immediately. </s> After these convictions were affirmed on appeal, 1 the trial court issued orders specifying the terms of probation. These required all three petitioners to make installment payments on their fines of $500 per month during the course of their periods of probation. After three months had elapsed, none of the petitioners had made any of the required payments, and the county probation officers therefore moved for revocation [450 U.S. 261, 264] of their probations. At a hearing on January 26, 1979, petitioners admitted that they had failed to make the installment payments, but offered convincing evidence of their inability to make these payments out of their own earnings. 2 They also stated that they had expected their employer 3 to pay the fines for them. Faced with petitioners' complete failure to satisfy a condition of their probations, the court decided to revoke these probations unless petitioners made up their arrearages within five days. Unable to do so, petitioners moved for a modification of the conditions of their probations. This motion was denied, and the court ordered petitioners to serve the remaining portions of their jail sentences. </s> II </s> After this revocation decision was affirmed by the Georgia Court of Appeals, 4 we granted a writ of certiorari to decide a question presented by the facts just summarized: whether it is constitutional under the Equal Protection Clause to imprison a probationer solely because of his inability to make installment payments on fines. 446 U.S. 951 . On closer inspection, however, the record reveals other facts that make this an inappropriate case in which to decide the constitutional question. Where, as here, a possible due process violation is [450 U.S. 261, 265] apparent on the particular facts of a case, we are empowered to consider the due process issue. 5 Moreover, for prudential reasons, it is preferable for us to remand for consideration of this issue, rather than decide a novel constitutional question that may be avoided. Cf. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) (broad constitutional [450 U.S. 261, 266] questions should be avoided where a case may be decided on narrower, statutory grounds on remand). </s> Petitioners have been represented since the time of their arrests by a single lawyer. The testimony of each petitioner at the probation revocation hearing makes it clear that none of them ever paid - or was expected to pay - the lawyer for his services. 6 They understood that this legal assistance was provided to them by their employer. 7 In fact, the transcript of this hearing reveals that legal representation was only one aspect of the assistance that was promised to petitioners if they should face legal trouble as a result of their employment. They were told that their employer also would pay any fines and post any necessary bonds, 8 and these promises were kept for the most part. In this case itself, as petitioners' lawyer stated at oral argument, bonds were posted with funds he provided. 9 In addition, when each of the petitioners was arrested a second time, he paid the resulting fines. 10 All aspects of this arrangement were revealed to the court at the revocation hearing. [450 U.S. 261, 267] </s> For some reason, however, the employer declined to provide money to pay the fines in the cases presently under review. 11 Since it was this decision by the employer that placed petitioners in their present predicament, and since their counsel has acted as the agent of the employer and has been paid by the employer, the risk of conflict of interest in this situation is evident. The fact that the employer chose to refuse payment of these fines, even as it 12 paid other fines and paid the sums necessary to keep petitioners free on bond in this case, suggests the possibility that it was seeking - in its own interest - a resolution of the equal protection claim raised here. If offenders cannot be jailed for failure to pay fines that are beyond their own means, then this operator of "adult" establishments may escape the burden of paying the fines imposed on its employees when they are arrested for conducting its business. To obtain such a ruling, however, it was necessary for petitioners to receive fines that were beyond their own means and then risk jail by failing to pay. </s> Although we cannot be sure that the employer and petitioners' attorney were seeking to create a test case, there is a clear possibility of conflict of interest on these facts. Indications of this apparent conflict of interest may be found at various stages of the proceedings below. It was conceded at oral argument here that petitioners raised no protest about the [450 U.S. 261, 268] size of the fines imposed at the time of sentencing. During the three months leading up to the probation revocation hearing they failed to pay even small amounts toward their fines to indicate their good faith. In fact, throughout this period, petitioners apparently remained under the impression that - as promised - the fines would be paid by the employer. Even at the revocation hearing itself, petitioners attempted to prove their inability to make the required payments but failed to make a motion for a modification of those requirements. That motion was not made until one day before petitioners were due to be incarcerated. 13 A review of these facts demonstrates that, if petitioners' counsel was serving the employer's interest in setting a precedent, this conflict in goals may well have influenced the decision of the trial court to impose such large fines, as well as the decision to revoke petitioners' probations rather than to modify the conditions. 14 </s> III </s> Courts and commentators have recognized the inherent dangers that arise when a criminal defendant is represented by a [450 U.S. 261, 269] lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise. 15 One risk is that the lawyer will prevent his client from obtaining leniency by preventing the client from offering testimony against his former employer or from taking other actions contrary to the employer's interest. 16 Another kind of risk is [450 U.S. 261, 270] present where, as here, the party paying the fees may have had a long-range interest in establishing a legal precedent and could do so only if the interests of the defendants themselves were sacrificed. 17 As suggested above, the factual setting of this case requires the Court to take note of the potential unfairness resulting from this particular third-party fee arrangement. Petitioners were mere employees, performing the most routine duties, yet they received heavy fines on the apparent assumption that their employer would pay them. They now face prison terms solely because of the employer's failure to pay the fines, having been represented throughout [450 U.S. 261, 271] by a lawyer hired by that employer. The potential for injustice in this situation is sufficiently serious to require us to consider whether petitioners have been deprived of federal rights under the Due Process Clause of the Fourteenth Amendment. </s> We have held that due process protections apply to parole and probation revocations. Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972). In Scarpelli we adopted a standard for deciding when due process requires appointment of counsel for indigent offenders during revocation hearings. Recognizing that the "need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases," 411 U.S., at 789 , we left it to the state tribunals to identify, on a case-by-case basis, the situations in which fundamental fairness requires appointed counsel. </s> In the present case, petitioners appeared at the hearing with retained counsel, as was their right under Ga. Code 27-2713 (1978). But, significantly, petitioners would have had a right to appointed counsel if they had made the showing of indigence on which they now rely. Scarpelli established a presumption in favor of appointment of counsel in cases where the probation or parole violation is a matter of record but "there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and . . . the reasons are complex or otherwise difficult to develop or present." 411 U.S., at 790 . This case, where there were assurances that the fines would be paid by an unnamed employer, falls into that category. </s> Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. E. g., Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475, 481 (1978). Here, petitioners were represented by their employer's lawyer, who may not have pursued [450 U.S. 261, 272] their interests single-mindedly. It was his duty originally at sentencing and later at the revocation hearing, to seek to convince the court to be lenient. On the record before us, we cannot be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him. If this was the case, the due process rights of petitioners were not respected at the revocation hearing, or at earlier stages of the proceedings below. </s> It is, however, difficult for this Court to determine whether an actual conflict of interest was present, especially without the benefit of briefing and argument on this issue. Nevertheless, the record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further. 18 The facts outlined above were all made known at that time. The court must have known that it had imposed disproportionately large fines - penalties that almost certainly were increased because of an assumption that the employer would pay the fines. 19 The court did know that petitioners' counsel had been provided by that employer and was pressing a constitutional attack rather than making the arguments for leniency that might well have resulted in substantial reductions in, or deferrals of, the fines. These facts demonstrate convincingly the duty of the court to recognize the possibility of a disqualifying conflict of interest. Any doubt as to whether the court should have been aware of the problem is dispelled [450 U.S. 261, 273] by the fact that the State raised the conflict problem explicitly and requested that the court look into it. 20 </s> For these reasons, we base our decision in this case on due process grounds. The judgment below is vacated and the case remanded with instructions that it be returned to the State Court of Fulton County. That court should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier. If the court finds that an actual conflict of interest existed at that time, and that there [450 U.S. 261, 274] was no valid waiver of the right to independent counsel, it must hold a new revocation hearing that is untainted by a legal representative serving conflicting interests. 21 </s> Vacated and remanded. </s> Footnotes [Footnote 1 Allen v. State, 144 Ga. App. 233, 240 S. E. 2d 754 (1977), cert. denied, 439 U.S. 899 (1978); Wood v. State, 144 Ga. App. 236, 240 S. E. 2d 743 (1977), cert. denied, 439 U.S. 899 (1978). </s> [Footnote 2 According to their testimony, all of the petitioners had by that time left their jobs in the "adult" establishments. Allen testified that her only income was $250 per month from unemployment insurance. See Transcript of Revocation Hearing, State Court of Fulton County, Criminal Division (Jan. 26, 1979) (hereinafter Tr.), at 7. Tante testified that his income as a correction officer was $540 per month. Id., at 35. He had been unemployed for eight months before obtaining that job. Id., at 39-40. Wood testified that he was trying to support a family and earning $120 per week working at a truck and trailer rental yard. Id., at 53-54. </s> [Footnote 3 The record suggests that the Plaza Theatre, which employed Tante and Allen, and the Plaza Adult Bookstore, which employed Wood, were under common ownership. </s> [Footnote 4 150 Ga. App. 582, 258 S. E. 2d 171 (1979). </s> [Footnote 5 JUSTICE WHITE'S dissenting opinion argues that this Court lacks jurisdiction to remand this case on due process grounds because, in his view, the conflict-of-interest issue has not been properly presented. To be sure, it was not raised on appeal below or included as a question in the petition for certiorari. These facts merely emphasize, however, why it is appropriate for us to consider the issue. The party who argued the appeal and prepared the petition for certiorari was the lawyer on whom the conflict-of-interest charge focused. It is unlikely that he would concede that he had continued improperly to act as counsel. And certainly the State's Solicitor, whose duty it was to support the judgment below, could not be expected to do more than call the problem to the attention of the courts, as he did. Petitioners were low-level employees, and now appear to be indigent. See n. 2, supra. We cannot assume that they, on their own initiative, were capable of protecting their interests. </s> As indicated, post, at 277-278, n. 1; see also n. 20, infra, it is abundantly clear that the possibility of a conflict of interest was pointed out to the trial court at the revocation hearing. The State's Solicitor raised the issue repeatedly. The State's Brief in Opposition 4, n. 2, again identified the apparent conflict. See n. 20, infra. Accordingly, counsel for petitioners cannot be heard to complain of any lack of notice. </s> In this context, it is appropriate to treat the due process issue as one "raised" below, and proceed to consider it here. See Boynton v. Virginia, 364 U.S. 454, 457 (1960) (deciding a case on a statutory issue raised below but not raised in this Court). Even if one considers that the conflict-of-interest question was not technically raised below, there is ample support for a remand required in the interests of justice. See 28 U.S.C. 2106 (authorizing this Court to "require such further proceedings to be had as may be just under the circumstances"); R. Stern & E. Gressman, Supreme Court Practice 6.27, p. 460 (5th ed. 1978) (in review of state cases, "the Court doubtless limits its power to notice plain error to those situations where it feels the error is so serious as to constitute a fundamental unfairness in the proceedings"). See also Vachon v. New Hampshire, 414 U.S. 478 (1974). </s> [Footnote 6 See Tr. 26 (Allen); id., at 43 (Tante); id., at 63 (Wood). </s> [Footnote 7 E. g., id., at 42-43 (Tante). </s> [Footnote 8 As petitioners' lawyer himself put it: "I want to bring this before the Solicitor and the Court that I believe Mrs. Allen told me and she told the Probation Officer that she - they were told, given information that their fine would be paid. The bond would be paid and a lawyer would be representing them." Id., at 14. See also id., at 62-63 (Wood). During oral argument in this Court, the lawyer conceded that he had been paid by the employer during petitioners' trials. Tr. of Oral Arg. 15-16. He indicated that these payments stopped when petitioners went on probation and left their jobs with this employer, but he has never dispelled the implication that he has an ongoing employment arrangement with the employer. </s> [Footnote 9 Id., at 8. The fact that the employer provided appeal bonds for petitioners after the probation revocation hearing suggests that his involvement with the case did not end when petitioners quit work in these "adult" establishments. </s> [Footnote 10 Tr. 12, 41, 56-57. These payments took place while the instant cases were still on direct appeal. </s> [Footnote 11 Counsel suggested at oral argument that the reason for this decision not to pay the fines was a change of ownership. It might also be explained by the fact that petitioners were no longer working for the "adult" establishments. Neither of these facts suggests, however, that the employer had lost interest in the case, since appeal bonds were provided for petitioners. Indeed, the providing of these appeal bonds suggests that the decision not to pay the fines themselves was a conscious one. And the fact that petitioners had left their jobs may have allowed the employer to pursue his goals without any concern about losing petitioners' services in the event of a probation revocation. </s> [Footnote 12 The record does not make clear whether the employer was an individual or a corporation, or indeed even identify the employer. </s> [Footnote 13 Petitioners' counsel states that he did attempt to alert the court to the problem of petitioners' inability to pay by letter, soon after their probations began. But no motion was made. </s> [Footnote 14 There is also a danger that petitioners' lawyer was influenced in his strategic decisions by other improper considerations. Rather than relying solely on the equal protection claims, he could have sought leniency at the probation hearing by arguing that the stiff sentences imposed on petitioners should be modified in light of the employer's unanticipated refusal to pay the fines. But this would have required him to dwell on the apparent bad faith of his own employer, and to emphasize the possibly improper arrangement by which he came to represent petitioners. Thus it is not correct, as JUSTICE WHITE argues, post, at 281, that the "conflict of interests . . . only emerges by assuming that the employer . . . set out to construct a constitutional test case." Even if the employer's motives were unrelated to its interest in establishing a precedent, its refusal to pay the fines put the attorney in a position of conflicting obligations. </s> [Footnote 15 As one court has stated: </s> "A conflict of interest inheres in every such situation. . . . It is inherently wrong to represent both the employer and the employee if the employee's interest may, and the public interest will, be advanced by the employee's disclosure of his employer's criminal conduct. For the same reasons, it is also inherently wrong for an attorney who represents only the employee to accept a promise to pay from one whose criminal liability may turn on the employee's testimony." In re Abrams, 56 N. J. 271, 276, 266 A. 2d 275, 278 (1970). </s> See also In re Investigation Before April 1975 Grand Jury, 174 U.S. App. D.C. 268, 274, n. 11, 531 F.2d 600, 606, n. 11 (1976); Pirillo v. Takiff, 462 Pa. 511, 341 A. 2d 896 (1975), appeal dism'd and cert. denied, 423 U.S. 1083 (1976); ABA Model Code of Professional Responsibility DR 5-107 (A), (B) (1980); ABA Standards for Criminal Justice 4-3.5 (c) (2d ed. 1980); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 960-961 (1978). </s> [Footnote 16 There are indications in the transcript of the revocation hearing that the State had been unable to learn the name of petitioners' employer, and that petitioners were concealing its identity. At one point, the Solicitor stated: "Mrs. Allen, is it not true each time you were arrested that we sought to get your cooperation to find out who is operating these places?" Tr. 28. Later, during the Solicitor's cross-examination of Tante, the following colloquy took place: </s> "Q Mr. Tante, who did you call when you said you called and told them to get someone else out there? </s> "A I called the secretary of the union first. </s> "Q And what about the company? Did you call them? </s> "A And the company, I gave notice to - whatever his name was. Mister - what was his name? </s> "MR. ZELL [petitioners' attorney] I'm sorry, I wasn't listening. </s> "A The manager of the theatre, Mister - I think it was you I told first. I said, `I want to get out of the theatre as soon as possible. In fact, I'd [450 U.S. 261, 270] like to leave now.' And I said, `As far as I'm concerned, I'm out, and that's it.' </s> "Q You called Mr. Zell to tell him to get someone else out there to operate the theatre? </s> "A No, sir. I called my business secretary at the union, told them I wanted out; to find me another job. If they wanted to put a man in there send them out. And they informed me to get on out of there that they would not send another union man out there. </s> "Q But you also talked to someone with the company, you said? </s> "A At the time, I did not, sir. I told Mister - Mrs. Allen, I said - </s> "MR. ZELL Hold it. Hold it, Mr. Tante. It's now ten-thirty, Your Honor. We're getting into areas that - the only question here is violation or failure to pay as directed." Id., at 45-46. </s> [Footnote 17 The ABA Model Code of Professional Responsibility EC 5-23 (1980) states: </s> "A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be far more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer's individual client. . . . Since a lawyer must always be free to exercise his professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom." (Emphasis added.) </s> [Footnote 18 JUSTICE WHITE'S dissent states that we have gone beyond the recent decision in Cuyler v. Sullivan, 446 U.S. 335 (1980). Yet nothing in that case rules out the raising of a conflict-of-interest problem that is apparent in the record. Moreover, Sullivan mandates a reversal when the trial court has failed to make an inquiry even though it "knows or reasonably should know that a particular conflict exists." Id., at 347. </s> [Footnote 19 Both counsel agreed that, in light of the size of the fines imposed on petitioners - relatively minor and impecunious participants in the criminal enterprises - the judge must have assumed that the employer would pay. Tr. of Oral Arg. 13, 40. </s> [Footnote 20 At one point during the discussion of Allen's case, the Solicitor, Mr. Rhodes, put it this way: </s> "MR. RHODES: What I'm trying to show is, Your Honor, that she in fact - that Mr. Zell [the attorney] was hired by someone else. She did not make the choice. That they sent Mr. Zell down here to represent her. And she may have acquiesced in it, but that she did not employ Mr. Zell to represent her. </s> "THE COURT: All right. How is that relevant to this issue? </s> "MR. RHODES: To what I say, there's a conflict of interest in this case. </s> "Mr. Zell is representing her employer, and there's two different interests there. </s> "They had promised this woman that they would pay her fine and they would take care of all these expenses. There's a conflict. </s> "Mr. Zell's, as I said, his first duty is to the persons that pay him. And that's what he's doing. He's trying to take care of them." Tr. 26-27 (emphasis added). </s> See also id., at 14-15. </s> As noted in n. 5, supra, the State raised this problem here as an argument against a grant of certiorari. The State's Brief in Opposition 4, n. 2, stated: </s> "During the probation revocation hearing there were several discussions between the Court, the Petitioner's [sic] lawyer and the Solicitor concerning the fact that the Petitioner's [sic] lawyer also represents the Plaza Theater, the theater in which Petitioners Allen and Tante were employed. The argument of the Solicitor was that the employer had agreed to pay the fines, and now was attempting to get out of paying the fines by arguing that there was no agreement, and that Petitioners were now indigents . . . ." </s> [Footnote 21 Because we are presented here only with the question of petitioners' probation revocations, we do not order more sweeping relief, such as vacating petitioners' sentences or reversing their convictions. Such actions do, however, remain within the discretion of the trial court upon appropriate motion. </s> There also is the possibility that this relief may be available in habeas corpus proceedings, if petitioners can show an actual conflict of interest during the trials or at the time of sentencing. </s> JUSTICE STEVENS, concurring. </s> Although I join the Court's opinion, my view that the potential conflict of interest disclosed by the record requires that the judgment be vacated does not rest on the hypothesis that the petitioners' employer may have contrived a test case. See ante, at 267-268, 269-270. It rests instead on the likelihood that the state trial court would have imposed a significantly different sentence if it had not been led to believe that the employer would pay the fines. </s> Independent counsel for these individuals surely would not have permitted the trial judge to impose fines that were manifestly beyond their ability to pay without obtaining an enforceable commitment from the employer. But a lawyer faithfully representing the interest of the employer surely would not make any such commitment gratuitously. The net result of the conflicting interests represented by one lawyer is a manifestly unfair prison sentence imposed on employees of the person who is probably the principal wrongdoer. </s> JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part. </s> While I agree with the Court that "there is a clear possibility of conflict of interest" shown on this record, ante, at 267, [450 U.S. 261, 275] and that the Court has the option to remand on this issue, I would nevertheless finally dispose of this case. That can be done, as JUSTICE WHITE concludes, by reversing the judgment of the Georgia Court of Appeals, for the reason that Tate v. Short, 401 U.S. 395 (1971), compels that conclusion. I would, however, reverse the conviction for distributing obscene materials in violation of Ga. Code 26-2101 (1978) under the view I have frequently expressed, and to which I adhere, that such an obscenity statute is facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 , 113 (1973) (BRENNAN, J., dissenting); McKinney v. Alabama, 424 U.S. 669, 678 (1976) (separate opinion of BRENNAN, J.). </s> JUSTICE STEWART, concurring in part and dissenting in part. </s> In my view the Court is correct in remanding because of the "clear possibility of conflict of interest" shown on the record in this case. I would, however, go further and reverse the convictions themselves, which were for violations of an obscenity statute. I believe that that statute, Ga. Code 26-2101 (1978), is facially unconstitutional. </s> JUSTICE WHITE, dissenting. </s> The Court's disposition of this case is twice flawed: first, there is no jurisdiction to vacate the judgment on the federal constitutional ground upon which the Court rests; second, the record does not sustain the factual inferences required to support the Court's judgment. </s> I </s> The petition for certiorari presented a single federal question: Does the Equal Protection Clause of the Fourteenth Amendment permit a State to revoke an indigent's probation because he has failed to make regular payments toward the satisfaction of a fine? This issue was properly presented to and ruled upon by the Georgia courts. No other federal constitutional [450 U.S. 261, 276] issue was presented there or brought here. The Court, however, disposes of this case on another ground, but a ground that also involves a constitutional issue: the possibly divided loyalties of petitioners' counsel may have deprived petitioners of due process and their constitutional right to counsel. Thus, we are to avoid one constitutional issue in favor of another, which was not raised by petitioners either here or below. I do not believe that this Court has jurisdiction even to reach this question, nor do I see why we should prefer one constitutional issue to another, even if we had the jurisdiction. </s> The Court, ante, at 273, n. 20, suggests that the conflict-of-interest issue was presented here by respondent, the State of Georgia. But the State merely argued that petitioners' attorney was also the attorney for petitioners' employer who had agreed to pay the fine and who was now seeking to avoid payment by arguing petitioners' indigency. Neither here nor in the trial court has the State ever suggested that petitioners were deprived of due process or raised any other federal constitutional issue. The State has surely not confessed error or given any other indication that it is seeking anything but an affirmance of the decision below - hardly an appropriate disposition if the State is suggesting that petitioners were denied their constitutional right to counsel. Moreover, nowhere in the passage of the response cited by the Court are the terms "conflict of interest" used, nor is there even a clear suggestion made that counsel was acting other than in the interests of petitioners in arguing that an indigent's probation cannot be revoked for failure to pay a fine. </s> However the State's argument here is to be characterized, this case comes to us on writ of certiorari to a state court. Our jurisdiction, therefore, arises under 28 U.S.C. 1257 (3) and is limited here to federal rights and privileges that have been "specially set up or claimed," and upon which there has been a final decision by the highest state court in which a [450 U.S. 261, 277] decision could be had. The right-to-counsel claim was never raised in the state court, nor did the state court ever render a decision on the issue: There is, thus, a jurisdictional bar to our reaching the issue. Moore v. Illinois, 408 U.S. 786, 799 (1972); Hill v. California, 401 U.S. 797, 805 (1971); Cardinale v. Louisiana, 394 U.S. 437 (1969), and cases cited there. </s> It is as clear as could be that no federal constitutional claim of any kind was made in the state courts with respect to a conflict of interest and the adequacy of petitioners' counsel. At the revocation hearing, petitioners testified that they were without funds to pay the fines, and their counsel urged that to incarcerate them would violate the Equal Protection Clause of the Fourteenth Amendment. On cross-examination, petitioners indicated that they had been assured by their employer that the employer would pay employee fines if they were convicted in cases such as this. The State's attorney then asserted several times that there was a conflict of interest because petitioners' counsel also represented petitioners' corporate employer and was being paid by that concern to represent petitioners. 1 But far from suggesting that the [450 U.S. 261, 278] alleged conflict was a ground of relief for petitioners, the State suggested that petitioners and their counsel had misled the court into thinking that the employer would pay the fines, and that the employer's undertaking should be enforced by sending petitioners "out to the jail for a while," 2 rather than permit the employer to renege and free petitioners on equal protection grounds. This would convince the employer to pay because it would not want other employees to know that they would not be taken care of in the event trouble arose. 3 </s> [450 U.S. 261, 279] In the course of these arguments, the State never mentioned the Federal Constitution. </s> Petitioners' attorney in turn responded that although there had been an advance arrangement between petitioners and their employer that fines would be paid by the latter, the employer had not paid, and the only issue was whether petitioners should go to jail when they were without funds themselves to pay the fines. He urged that jailing them would violate the Equal Protection Clause. 4 He also suggested that if the asserted conflict of interest raised an ethical problem in the mind of the State's attorney, a complaint should be filed with the State Bar. 5 </s> The judge, apparently rejecting the equal protection claim, revoked petitioners' probation, although petitioners have remained free on bond pending appeal. The sole issue in the Georgia Court of Appeals was whether petitioners had been denied the equal protection of the laws. That claim was rejected, the judgment of revocation was affirmed, and the Georgia Supreme Court denied further review. The equal protection issue, as I have said, is the only federal constitutional issue that has been presented here. </s> The Court asserts that "it is appropriate to treat the due process issue as one `raised' below, and proceed to consider it here." Ante, at 265, n. 5. However, the Court fails to cite any passage from the record in which the alleged conflict of interest was presented to the state courts as a problem of constitutional dimension. The Court relies on 28 U.S.C. 2106, [450 U.S. 261, 280] but that section does not purport to expand the statutory limits on the Court's jurisdiction; rather, it relates only to the disposition of the case once jurisdiction exists. What JUSTICE REHNQUIST wrote in Vachon v. New Hampshire, 414 U.S. 478, 482 (1974) (dissenting opinion), is equally applicable here: </s> "A litigant seeking to preserve a constitutional claim for review in this Court must not only make clear to the lower courts the nature of his claim, but he must also make it clear that the claim is constitutionally grounded. Bailey v. Anderson, 326 U.S. 203 (1945)." </s> Petitioners have done neither; nor has respondent done it for them. </s> The Court apparently believes that under Cuyler v. Sullivan, 446 U.S. 335 (1980), the possibility of a conflict of interest of constitutional dimensions should have prompted further inquiry by the trial judge. But Cuyler v. Sullivan did not purport to give this Court jurisdiction over a claim otherwise beyond its reach. Cuyler held only that if a trial court "reasonably should know that a particular conflict exists," id., at 347, then a failure to initiate an inquiry may constitute a Sixth Amendment violation. If this is the case here, then petitioners remain free to seek collateral relief in the lower courts. 6 </s> [450 U.S. 261, 281] </s> A majority of the Court, however, proceeds on the basis that it has jurisdiction to address the due process/adequacy-of-counsel issue. Accordingly, I proceed on that assumption. </s> II </s> As I see it, the Court's disposition of the case rests upon critical factual assumptions that are not supported by the record. Certainly the mere fact that petitioners' counsel was paid by their employer does not in itself constitute a conflict of interest of constitutional dimension. 7 Indeed, one would expect that in the normal course of things the interests of petitioners and of their employer would have corresponded throughout the proceedings. It would have been just as much in the employer's as in the employees' interest to have had the employees adjudged innocent. Similarly, assuming that the employer had promised to pay whatever fines might be levied against the employees, it was in the employer's interest, just as it was in their interest, to have these fines set at the lowest possible amount. The conflict of interests, therefore, only emerges by assuming that the employer, the owner of an adult bookstore and a movie theater, set out to construct a constitutional test case and the petitioners' counsel represented the employer in this regard. Not even a decision to pursue a test case, however, would in itself create a conflict of interest. One must assume further that it was for the sake of this interest that the employer decided not to pay the fines and for the sake of this interest of the employer [450 U.S. 261, 282] that petitioners' attorney did not object to the size of the fines or move in timely fashion for a modification of the conditions of probation. </s> I recognize that the Court's conclusion relies only upon the "possibility" of this scenario, but I find these assumptions implausible and would require a much stronger showing than this record reveals before I would speculate on the likelihood of such a motive of the employer and the knowing cooperation of counsel to this end, let alone dispose of the case on that basis. 8 First, since the only submission of petitioners was that they should not go to jail for failure to pay their fines, even if the court sustained their position, their liability on the fine would remain - as would that of the employer if it had an enforceable obligation to pay. It is, therefore, difficult to find any interest that the employer might have in litigating a test case on this issue through the Georgia courts and to this Court. Second, the record suggests two much more plausible explanations of the employer's failure to pay the fines, neither of which implies a conflict of interest: The employer may have reneged on its promise to pay fines because petitioners were no longer working for the employer, or it may have reneged because ownership of the establishments changed [450 U.S. 261, 283] hands. 9 The fact that the employer may have continued to meet some of the expenses, but did not pay the substantial fines, does not indicate to me that the employer manipulated the situation to create a test case; more likely, the employer reneged on his promise because, given the change in circumstances of both the employer and the petitioners, the expense was simply greater than that which the employer was willing to bear at this point. </s> If the employer was simply unwilling to pay the fines, then the arguments advanced by the attorney may very well have been the best and only arguments available to petitioners. 10 Indeed, the employer having failed to pay, counsel would have been derelict not to press the equal protection claim on behalf of his indigent clients. Obviously, success on this ground would have advantaged petitioners; and I fail to see, as apparently the trial court failed to see, Tr. 15, 28, how petitioners will be constitutionally deprived by assertion of the equal protection claim. The fact that petitioners did move, although belatedly, for a modification of the conditions of parole 11 further indicates that the employer was more interested [450 U.S. 261, 284] in cutting his costs than creating a test case. 12 On this record, therefore, I believe it necessary to reach the substantive question that we granted certiorari to resolve. </s> III </s> Although I think that there are circumstances in which a State may impose a suitable jail term in lieu of a fine when the defendant cannot or will not pay the fine, there are constitutional limits on those circumstances, and the State of Georgia has exceeded the limits in this case. </s> In Williams v. Illinois, 399 U.S. 235 (1970), Williams, convicted of petty theft, received the maximum sentence of one year's imprisonment and a $500 fine (plus $5 in court costs). As permitted by Illinois statute, the judgment provided that if, when the one-year sentence expired, Williams did not immediately pay the fine and court costs, he was to remain in jail a length of time sufficient to satisfy the total debt, calculated at the rate of $5 per day. We held that "the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." Id., at 244. Therefore, the Illinois statute as applied to Williams, who was too poor to pay the fine, violated the Equal Protection Clause. </s> Tate v. Short, 401 U.S. 395 (1971), involved an indigent defendant incarcerated for nonpayment of fines imposed for [450 U.S. 261, 285] violating traffic ordinances. Under Texas law, traffic offenses were punishable only by fines, not imprisonment. When Tate could not pay $425 in fines imposed for nine traffic convictions, he was jailed pursuant to the provisions of another Texas statute and a municipal ordinance that required him to remain in jail a sufficient time to satisfy the fines, again calculated at the rate of $5 per day. We reversed on the authority of Williams v. Illinois, saying: "Since Texas has legislated a `fines only' policy for traffic offenses, that statutory ceiling cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine." 401 U.S., at 399 . The Court, however, was careful to repeat what it had said in Williams: "`The state is not powerless to enforce judgments against those financially unable to pay a fine'" and is free to choose other means to effectuate this end. 401 U.S., at 399 . </s> In Williams v. Illinois, supra, at 243, the Court emphasized that its holding "does not deal with a judgment of confinement for nonpayment of a fine in the familiar pattern of alternative sentence of $30 or 30 days." In neither Williams nor Tate did it appear that "jail [was] a rational and necessary trade-off to punish the individual who possesses no accumulated assets . . . since the substitute sentence provision, phrased in terms of a judgment collection statute, [did] not impose a discretionary jail term as an alternative sentence, but rather equate[d] days in jail with a fixed sum." Williams v. Illinois, supra, at 265 (Harlan, J., concurring in result). As both the Court and Justice Harlan implied, if the Court had confronted a legislative scheme that imposed alternative sentences, the analysis would have been different. </s> Indigency does not insulate those who have violated the criminal law from any punishment whatsoever. As I see it, if an indigent cannot pay a fine, even in installments, the [450 U.S. 261, 286] Equal Protection Clause does not bar the State from specifying other punishment, even a jail term, in lieu of the fine. 13 To comply with the Equal Protection Clause, however, the State must make clear that the specified jail term in such circumstances is essentially a substitute for the fine and serves the same purpose of enforcing the particular statute that the defendant violated. In both Williams and Tate the State violated this principle by speaking inconsistently: In each case, the legislature declared its interest in penalizing a particular offense to be satisfied by a specified jail term (in Tate, no jail term at all) and at the same time subjected the indigent offender to a greater term of punishment. </s> The incarceration of the petitioners in this case cannot be distinguished from that which we found to be unconstitutional in Williams and Tate. Here, the State imposed probated prison terms and fines, but made installment payment of the fines a condition of probation: Had the fines been paid in full and other conditions of probation satisfied, there would have been no time in jail at all. Thus, the ends of the State's criminal justice system did not call for any loss of liberty except that incident to probation. </s> Under these circumstances, the State's only interest in incarcerating these petitioners for not paying their fines was to impose a loss of liberty that would be as efficacious as the fines in satisfying the State's interests in enforcing the criminal law involved. However, no calculation like that was made here. Upon nonpayment, probation was automatically revoked and petitioners were sentenced to their full prison [450 U.S. 261, 287] terms. 14 There was no attempt to provide, in addition to the jail terms for which they were given probation, a term of imprisonment that would be a proper substitute for the fines. In fact, even at the conclusion of their prison terms, petitioners will apparently be liable for the unpaid fines. This is little more than imprisonment for failure to pay a fine, without regard to the goals of the criminal justice system. As in Williams and Tate, the State is speaking inconsistently concerning the necessity of imprisonment to meet its penal objectives; imprisonment of an indigent under these circumstances is constitutionally impermissible. </s> This case falls well within the limits of what we meant to prohibit when we announced in Tate v. Short, supra, at 398, quoting Morris v. Schoonfield, 399 U.S. 508, 509 (1970), that the "`Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent.'" </s> Accordingly, I would reverse the judgment. </s> [Footnote 1 The following colloquy, similar to others, took place at one point in the revocation hearing: </s> "MR. RHODES: Your Honor, I submit that actually what we have here is a conflict of interest on Mr. Zell's part. He's representing the company and he's trying to get out of paying this money that these people expect that company to pay that money. Mr. Zell is here purporting to represent her while he legally represents a company that has promised to pay all these expenses and fines for these people. And I would ask the Court to look into that and make a determination of that, and if necessary, see that these people have Counsel to enforce that agreement between that company and these people. </s> "THE COURT: State that again now. </s> "MR. RHODES: Mr. Zell is here representing Mrs. Allen. Now, Mrs. Allen contends that that company promised to pay all this so that she wouldn't have to go through all of this. </s> "Now they have not done it. [450 U.S. 261, 278] </s> "And I submit that Mr. Zell represents that company. That he is, his first allegiance is to that company, and not to Mrs. Allen. </s> "And that there's a conflict of interest, and that this ought to be looked into by this court. </s> "THE COURT: You wish to respond? </s> "MR. ZELL: I don't think it makes any sense what he's saying but I will if the Court wants me to. I don't think I'm required to. </s> "THE COURT: I don't know whether there's anything the Court could look into. What specifically do you want the Court to look into? </s> "MR. RHODES: Mr. Zell is here supposedly representing Mrs. Allen. He at the same time represents the people who promised to take care of these things and to pay these fines. </s> "Now those people are not doing it. And they apparently have reneged on it at this point. I think if you sent these people out to the jail for a while I think they would pay it because they don't want the other employees to know that they are not taking care of these things when they come up." Transcript of Revocation Hearing (Tr.) 14-15. The transcript is an appendix to the response of respondent. </s> Other discussions appear in id., at 25-28. </s> [Footnote 2 Id., at 15. </s> [Footnote 3 The State's position in this regard is clear from its response to the petition for certiorari: </s> "In fact, Respondent believes that the Petitioners have no intention whatsoever in paying these fines, as their testimony indicates that they are of the opinion that their employers should have paid these fines. The Petitioners are thus holding the enforcement of fines as a recognized sentencing tool a hostage because of their beliefs that others should pay their fines for them. By arguing at this time that they are indigent they are using this as a shield to hide behind their responsibility to pay a fine, which they earlier agreed to pay by virtue of their silence which led the [450 U.S. 261, 279] sentencing court to conclude that they were able to pay these fines." Brief in Opposition 10. </s> Elsewhere, the State suggested "that they be put out there in jail and start serving . . . that's the only way really I know, to enforce this sentence at this point." Tr. 74. </s> [Footnote 4 Id., at 16-20. </s> [Footnote 5 Id., at 27: "I would suggest Mr. Rhodes report this to the State Bar of Georgia and be glad at a hearing to testify if there is any impropriety and submit to any questions before the State Bar." </s> [Footnote 6 This Court's Rule 34.1 (a), the plain-error rule, does not purport to authorize the Court to vacate state-court judgments on the ground of a "possible" due process or other constitutional violation which the Court, sua sponte, has discovered in the record but which was neither raised nor decided in the state courts. Where an issue has been properly raised and decided in state litigation but not raised here, Rule 34.1 (a) would permit us to reach that issue though not presented by the parties. Cf. Boynton v. Virginia, 364 U.S. 454, 457 (1960). </s> In Vachon v. New Hampshire, 414 U.S. 478 (1974), the Court relied on our "plain error" rule to reach an issue not presented in the jurisdictional statement. However, appellant there had unsuccessfully argued the issue - sufficiency of the evidence - below and the issue had been addressed [450 U.S. 261, 281] by the State Supreme Court. The dissent in Vachon did not contend that appellant had failed to raise the issue below; rather, it argued that although raised, the issue had not been presented to the state courts as a "federal constitutional claim." The majority, evidently, thought that it had. </s> [Footnote 7 Although petitioners' counsel admitted at oral argument that he had been paid by petitioners' employer at the time of trial, he indicated that the payments from the employer ended at the time petitioners were put on probation. Tr. 13-16. </s> [Footnote 8 Petitioners' attorney also said: "I want the court to know, and Mr. Rhodes to know that I've attempted at least was asked, to get the fines paid. And of course, you can see the result of it. </s> "I told the three defendants I would represent them to the best of my ability, and I've explained this to the defendants, and I would like to make an explanation to the court." Id., at 68. </s> Interesting also is the following exchange from the cross-examination of one of the petitioners: </s> "Q Did you select Mr. Zell as your attorney? </s> "A Yes, sir. I've known him a long time and I trust him. And he's the only lawyer I've ever had to have in my life, and yes, sir, I selected him." Id., at 42. </s> As far as this record reveals, none of the petitioners to this date has complained about the legal representation. </s> [Footnote 9 There is no indication in the record that the employer owned other adult establishments. If, as counsel suggested at oral argument, ownership has in fact changed hands, then it seems unlikely that the ex-employer would continue to be interested in creating and litigating a test case in a matter with which he is no longer concerned. </s> [Footnote 10 I note that petitioners argue in their response that the trial court was fully aware of their financial situation. Response for Petitioners 2. This is amply supported by the record. The Court, therefore, creates an artificial issue when it argues that counsel's conflicting loyalties may have prevented him from arguing for leniency in light of the employer's failure to pay the fines. The point was made repeatedly that these petitioners were indigent and could not themselves pay. Petitioners' attorney conceded that a defendant who has been fined and who himself could pay the fine could not hide behind the promise of another that the latter would pay. Tr. 69. </s> [Footnote 11 The fact that this motion was made and rejected indicates that a remand to the trial court to reconsider this issue is not likely to lead to a different result. It also suggests that the inadequacy of counsel suggested [450 U.S. 261, 284] by the Court amounts to nothing more than his late filing of this motion, not a failure to ask for leniency. </s> [Footnote 12 Even this statement asserts more than the evidence of record supports: other than the assertions of the State's attorney in a colloquy with the judge at the revocation hearing, there is no suggestion in this record that the employer directed this litigation in any way. The fact that counsel was paid for some period by the employer does not support an inference that counsel was representing the interests of the employer rather than those of petitioners. See ABA Model Code of Professional Responsibility, DR 5-107 (B) (1980). </s> [Footnote 13 In imposing an alternative sentence the State focuses on the penalty appropriate for the particular offense and structures two punishments, each tailored to meet the State's ends in responding to the offense committed. Such tailoring may consider the financial situation of the defendant, Williams v. New York, 337 U.S. 241, 246 -250 (1949), but it does so only in the context of structuring a penalty appropriate to the offense committed. </s> [Footnote 14 As the majority opinion makes clear, the fines were quite heavy, perhaps in anticipation of payment by the employer. There was no expectation that these defendants, if they performed well on probation, would serve any time in jail, let alone a long term. </s> [450 U.S. 261, 288]

United States Supreme Court THE WHARF (HOLDINGS) LTD. et al. v. UNITED INTERNATIONAL HOLDINGS, INC., et al.(2001) No. 00-347 Argued: March 21, 2001Decided: May 21, 2001 </s> Petitioner The Wharf (Holdings) Limited orally granted respondent United International Holdings, Inc., an option to buy 10% of the stock in Wharf's Hong Kong cable system if United rendered certain services, but internal Wharf documents suggested that Wharf never intended to carry out its promise. United fulfilled its obligation, but Wharf refused to permit it to exercise the option. United sued in Federal District Court, claiming that Wharf's conduct violated, inter alia, §10(b) of the Securities Exchange Act of 1934, which prohibits using "any manipulative or deceptive device or contrivance" "in connection with the purchase or sale of any security." 15 U. S. C. §78j(b). A jury found for United, and the Tenth Circuit affirmed. </s> Held:Wharf's secret intent not to honor the option it sold United violates §10(b). Pp. 4-9. </s> (a)The Court must assume that the "security" at issue is not the cable system stock, but the option to purchase that stock, because Wharf conceded this point below. That concession is consistent with the Act's language defining "security" to include both "any . . . option .. . on any security" and "any . . . right to . . . purchase" stock. §78c(a)(10). P. 5. </s> (b)Wharf's claim that §10(b) does not cover oral contracts of sale is rejected. This Court held in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, that the Act does not protect a person who did not actually buy securities, but who might have done so had the seller told the truth. But United is not a potential buyer; by providing Wharf with its services, it actually bought the option that Wharf sold. And Blue Chip Stamps did not suggest that oral purchases or sales fall outside the Act's scope. Neither is there any other convincing reason to interpret the Act to exclude oral contracts as a class. The Act itself says that it applies to "any contract" for a security's purchase or sale, §§78c(a)(13), (14), and oral contracts for the sale of securities are sufficiently common that the Uniform Commercial Code and statutes of frauds in every State consider them enforceable. Pp. 5-7. </s> (c)Also rejected is Wharf's argument that a secret reservation not to permit the exercise of an option falls outside §10(b) because it does not relate to the value of a security purchase or the consideration paid, and hence does not implicate §10(b)'s full disclosure policy. Even were it the case that the Act covers only misrepresentations likely to affect the value of securities, Wharf's secret reservation was such a misrepresentation. To sell an option while secretly intending not to permit the option's exercise is misleading, because a buyer normally presumes good faith. Similarly, the secret reservation misled United about the option's value, which was, unbeknownst to United, valueless. Pp. 7-8. </s> (d)Finally, the Court rejects Wharf's claim that interpreting the Act to allow recovery in a case like this one will permit numerous plaintiffs to bring federal securities claims that are in reality no more than ordinary state breach-of-contract claims lying outside the Act's basic objectives. United's claim is not simply that Wharf failed to carry out a promise to sell it securities, but that Wharf sold it a security (the option) while secretly intending from the very beginning not to honor the option. Moreover, Wharf has not shown that its concern has proved serious as a practical matter in the past or that it is likely to prove serious in the future. Pp. 8-9. </s> 210 F. 3d 1207, affirmed. </s> Breyer, J., delivered the opinion for a unanimous Court. </s> the wharf (HOLDINGS) LIMITED, etal., PETI-TIONERS v. UNITED INTERNATIONALHOLDINGS, INC. etal. </s> on writ of certiorari to the united states court ofappeals for the tenth circuit </s> [May 21, 2001] </s> Justice Breyer delivered the opinion of the Court. </s> This securities fraud action focuses upon a company that sold an option to buy stock while secretly intending never to honor the option. The question before us is whether this conduct violates §10(b) of the Securities Exchange Act of 1934, which prohibits using "any manipulative or deceptive device or contrivance" "in connection with the purchase or sale of any security." 48 Stat. 891, 15 U. S. C. §78j(b); see also 17 CFR §240.10b-5 (2000). We conclude that it does. </s> I </s> Respondent United International Holdings, Inc., a Colorado-based company, sued petitioner The Wharf (Holdings) Limited, a Hong Kong firm, in Colorado's Federal District Court. United said that in October 1992 Wharf had sold it an option to buy 10% of the stock of a new Hong Kong cable system. But, United alleged, at the time of the sale Wharf secretly intended not to permit United to exercise the option. United claimed that Wharf's conduct amounted to a fraud "in connection with the . . . sale of [a] security," prohibited by §10(b), and violated numerous state laws as well. A jury found in United's favor. The Court of Appeals for the Tenth Circuit upheld that verdict. 210 F.3d 1207 (2000). And we granted certiorari to consider whether the dispute fell within the scope of §10(b). </s> The relevant facts, viewed in the light most favorable to the verdict winner, United, are as follows. In 1991, the Hong Kong government announced that it would accept bids for the award of an exclusive license to operate a cable television system in Hong Kong. Wharf decided to prepare a bid. Wharf's chairman, Peter Woo, instructed one of its managing directors, Stephen Ng, to find a business partner with cable system experience. Ng found United. And United sent several employees to Hong Kong to help prepare Wharf's application, negotiate contracts, design the system, and arrange financing. </s> United asked to be paid for its services with a right to invest in the cable system if Wharf should obtain the license. During August and September 1992, while United's employees were at work helping Wharf, Wharf and United negotiated about the details of that payment. Wharf prepared a draft letter of intent that contemplated giving United the right to become a co-investor, owning 10% of the system. But the parties did not sign the letter of intent. And in September, when Wharf submitted its bid, it told the Hong Kong authorities that Wharf would be the system's initial sole owner, Lodging to App. AY-4, although Wharf would also "consider" allowing United to become an investor, id., at AY-6. </s> In early October 1992, Ng met with a United representative, who told Ng that United would continue to help only if Wharf gave United an enforceable right to invest. Ng then orally granted United an option with the following terms: (1) United had the right to buy 10% of the future system's stock; (2) the price of exercising the option would be 10% of the system's capital requirements minus the value of United's previous services (including expenses); (3) United could exercise the option only if it showed that it could fund its 10% share of the capital required for at least the first 18 months; and (4) the option would expire if not exercised within six months of the date that Wharf received the license. The parties continued to negotiate about how to write documents that would embody these terms, but they never reduced the agreement to writing. </s> In May 1993, Hong Kong awarded the cable franchise to Wharf. United raised $66 million designed to help finance its 10% share. In July or August 1993, United told Wharf that it was ready to exercise its option. But Wharf refused to permit United to buy any of the system's stock. Contemporaneous internal Wharf documents suggested that Wharf had never intended to carry out its promise. For example, a few weeks before the key October 1992 meeting, Ng had prepared a memorandum stating that United wanted a right to invest that it could exercise if it wasable to raise the necessary capital. A handwritten noteby Wharf's Chairman Woo replied, "No, no, no, we don't accept that." App. DT-187; Lodging to App. AI-1. In September 1993, after meeting with the Wharf board to discuss United's investment in the cable system, Ng wrote to another Wharf executive, "How do we get out?" Id., at CY-1. In December 1993, after United had filed documents with the Securities Exchange Commission representing that United was negotiating the acquisition of a 10% interest in the cable system, an internal Wharf memo stated that "[o]ur next move should be to claim that our directors got quite upset over these representations . . . . Publicly, we do not acknowledge [United's] opportunity" to acquire the 10% interest. Id., at DF-1 (emphasis in original). In the margin of a December 1993 letter from United discussing its expectation of investing in the cable system, Ng wrote, "[B]e careful, must deflect this! [H]ow?" Id., at DI-1. Other Wharf documents referred to the need to "back ped[al]," id., at DG-1, and "stall," id., at DJ-1. </s> These documents, along with other evidence, convinced the jury that Wharf, through Ng, had orally sold United an option to purchase a 10% interest in the future cable system while secretly intending not to permit United to exercise the option, in violation of §10(b) of the Securities Exchange Act and various state laws. The jury awarded United compensatory damages of $67 million and, in light of "circumstances of fraud, malice, or willful and wanton conduct," App. EM-18, punitive damages of $58.5 million on the state-law claims. As we have said, the Court of Appeals upheld the jury's award. 210 F. 3d 1207 (CA10 2000). And we granted certiorari to determine whether Wharf's oral sale of an option it intended not to honor is prohibited by §10(b). </s> II </s> Section 10(b) of the Securities Exchange Act makes it "unlawful for any person . . . [t]o use or employ, in connection with the purchase or sale of any security . . ., any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe." 15 U. S. C. §78j. </s> Pursuant to this provision, the SEC has promulgated Rule 10b-5. That Rule forbids the use, "in connection with the purchase or sale of any security," of (1) "any device, scheme, or artifice to defraud"; (2) "any untrue statement of a material fact"; (3) the omission of "a material fact necessary in order to make the statements made . . . not misleading"; or (4) any other "act, practice, or course of business" that "operates . . . as a fraud or deceit." 17 CFR §§240.10b-5 (2000). </s> To succeed in a Rule 10b-5 suit, a private plaintiff must show that the defendant used, in connection with the purchase or sale of a security, one of the four kinds of manipulative or deceptive devices to which the Rule refers, and must also satisfy certain other requirements not at issue here. See, e.g., 15 U.S.C. §78j (requiring the "use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange"); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 193 (1976) (requiring scienter, meaning "intent to deceive, manipulate, or defraud"); Basic Inc. v. Levinson, 485 U. S. 224, 231-232 (1988) (requiring that any misrepresentation be material); id., at 243 (requiring that the plaintiff sustain damages through reliance on the misrepresentation). </s> In deciding whether the Rule covers the circumstances present here, we must assume that the "security" at issue is not the cable system stock, but the option to purchase that stock. That is because the Court of Appeals found that Wharf conceded this point. 210 F. 3d, at 1221 ("Wharf does not contest on appeal the classification of the option as a security"). That concession is consistent with the language of the Securities Exchange Act, which defines "security" to include both "any ... option . . . on any security" and "any . . . right to ... purchase" stock. 15 U.S.C. §78c(a)(10) (1994 ed., Supp. V); see also Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 751 (1975) ("holders of . . . options, and other contractual rights or duties to purchase . . . securities" are "`purchasers' . . . of securities for purposes of Rule 10b-5"). And Wharf's current effort to deny the concession, by pointing to an ambiguous statement in its Court of Appeals reply brief, comes too late and is unconvincing. See Reply Brief for Petitioners 16, n.8 (citing Reply Brief for Appellants in Nos. 97-1421, 98-1002 (CA10), pp.5-6). Consequently, we must decide whether Wharf's secret intent not to honor the option it sold United amounted to a misrepresentation (or other conduct forbidden by the Rule) in connection with the sale of the option. </s> Wharf argues that its conduct falls outside the Rule's scope for two basic reasons. First, Wharf points out that its agreement to grant United an option to purchase shares in the cable system was an oral agreement. And it says that §10(b) does not cover oral contracts of sale. Wharf points to Blue Chip Stamps, in which this Court construed the Act's "purchase or sale" language to mean that only "actual purchasers and sellers of securities" have standing to bring a private action for damages. See 421 U.S., at 730-731. Wharf notes that the Court's interpretation of the Act flowed in part from the need to protect defendants against lawsuits that "turn largely on which oral version of a series of occurrences the jury may decide to credit." Blue Chip Stamps, supra, at 742. And it claims that an oral purchase or sale would pose a similar problem of proof and thus should not satisfy the Rule's "purchase or sale" requirement. </s> Blue Chip Stamps, however, involved the very different question whether the Act protects a person who did not actually buy securities, but who might have done so had the seller told the truth. The Court held that the Act does not cover such a potential buyer, in part for the reason that Wharf states. But United is not a potential buyer; by providing Wharf with its services, it actually bought the option that Wharf sold. And Blue Chip Stamps said nothing to suggest that oral purchases or sales fall outside the scope of the Act. Rather, the Court's concern was about "the abuse potential and proof problems inherent in suits by investors who neither bought nor sold, but asserted they would have traded absent fraudulent conduct by others." United States v. O'Hagan, 521 U. S. 642, 664 (1997). Such a "potential purchase" claim would rest on facts, including the plaintiff's state of mind, that might be "totally unknown and unknowable to the defendant," depriving the jury of "the benefit of weighing the plaintiff's version against the defendant's version." Blue Chip Stamps, supra, at 746. An actual sale, even if oral, would not create this problem, because both parties would be able to testify as to whether the relevant events hadoccurred. </s> Neither is there any other convincing reason to interpret the Act to exclude oral contracts as a class. The Act itself says that it applies to "any contract" for the purchase or sale of a security. 15 U. S. C. §§78c(a)(13), (14). Oral contracts for the sale of securities are sufficiently common that the Uniform Commercial Code and statutes of frauds in every State now consider them enforceable. See U.C.C. §8-113 (Supp. 2000) ("A contract . . . for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought"); see also 2C U.L.A. 77-81 (Supp. 2000) (table of enactments of U.C.C. Revised Art. 8 (amended 1994)) (noting adoption of §8-113, with minor variations, by all States except Rhode Island and South Carolina); R.I. Gen. Laws §6A-8-322 (1999) (repealed effective July 1, 2001) (making oral contracts for the sale of securities enforceable); §6A-8-113 (2000 Cum. Supp.) (effective July 1, 2001) (same); S. C. Code Ann. §36-8-113 (Supp. 2000) (same); U.C.C. §8-113 Comment (Supp. 2000) ("[T]he statute of frauds is unsuited to the realities of the securities business"). Any exception for oral sales of securities would significantly limit the Act's coverage, thereby undermining its basic purposes. </s> Wharf makes a related but narrower argument that the Act does not encompass oral contracts of sale that are unenforceable under state law. But we do not reach that issue. The Court of Appeals held that Wharf's sale of the option was not covered by the then-applicable Colorado statute of frauds, Colo. Rev. Stat. §4-8-319 (repealed 1996), and hence was enforceable under state law. Though Wharf disputes the correctness of that holding, we ordinarily will not consider such a state-law issue, and we decline to do so here. </s> Second, Wharf argues that a secret reservation not to permit the exercise of an option falls outside §10(b) because it does not "relat[e] to the value of a security purchase or the consideration paid"; hence it does "not implicate [§10(b)'s] policy of full disclosure." Brief for Petitioners 25, 26 (emphasis deleted). But even were it the case that the Act covers only misrepresentations likely to affect the value of securities, Wharf's secret reservation was such a misrepresentation. To sell an option while secretly intending not to permit the option's exercise is misleading, because a buyer normally presumes good faith. Cf., e.g., Restatement (Second) of Torts §530, Comment c (1976) ("Since a promise necessarily carries with it the implied assertion of an intention to perform[,] it follows that a promise made without such an intention is fraudulent"). For similar reasons, the secret reservation misled United about the option's value. Since Wharf did not intend to honor the option, the option was, unbeknownst to United, valueless. </s> Finally, Wharf supports its claim for an exemption from the statute by characterizing this case as a "disput[e] over the ownership of securities." Brief for Petitioners 24. Wharf expresses concern that interpreting the Act to allow recovery in a case like this one will permit numerous plaintiffs to bring federal securities claims that are in reality no more than ordinary state breach-of-contract claims--actions that lie outside the Act's basic objectives. United's claim, however, is not simply that Wharf failed to carry out a promise to sell it securities. It is a claim that Wharf sold it a security (the option) while secretly intending from the very beginning not to honor the option. And United proved that secret intent with documentary evidence that went well beyond evidence of a simple failure to perform. Moreover, Wharf has not shown us that its concern has proven serious as a practical matter in the past. Cf. Threadgill v. Black, 730 F.2d 810, 811-812 (CADC) (per curiam) (suggesting in 1984 that contracting to sell securities with the secret reservation not to perform one's obligations under the contract violates §10(b)). Nor does Wharf persuade us that it is likely to prove serious in the future. Cf. Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, §21D(b)(2), 109 Stat. 747, codified at 15 U.S.C. §78u-4(b)(2) (1994 ed., Supp. V) (imposing, beginning in 1995, stricter pleading requirements in private securities fraud actions that, among other things, require that a complaint "state with particularity facts giving rise to a strong inference that the defendant acted with the required [fraudulent] state of mind"). </s> For these reasons, the judgment of the Court of Appeals is </s> Affirmed.

United States Supreme Court WESTERN AIR LINES, INC. v. CRISWELL(1985) No. 83-1545 Argued: January 14, 1985Decided: June 17, 1985 </s> The Age Discrimination in Employment Act of 1967 (ADEA) generally prohibits mandatory retirement before age 70, but 4(f)(1) of the Act provides an exception "where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business." Petitioner airline company requires that its flight engineers, who are members of the cockpit crews of petitioners' aircraft but do not operate flight controls unless both the pilot and the copilot become incapacitated, retire at age 60. A Federal Aviation Administration regulation prohibits any person from serving as a pilot or copilot after reaching his 60th birthday. Certain of the respondents, who include flight engineers forced to retire at age 60 and pilots who, upon reaching 60, were denied reassignment as flight engineers, brought suit in Federal District Court against petitioner, contending that the age-60 retirement requirement for flight engineers violated the ADEA. Petitioner defended, in part, on the theory that the requirement is a BFOQ "reasonably necessary" to the safe operation of the airline. The physiological and psychological capabilities of persons over age 60, and the ability to detect disease or a precipitous decline in such capabilities on the basis of individual medical examinations, were the subject of conflicting expert testimony presented by the parties. The jury instructions included statements that the "BFOQ defense is available only if it is reasonably necessary to the normal operation or essence of [petitioner's] business"; "the essence of [petitioner's] business is the safe transportation of [its] passengers"; and petitioner could establish a BFOQ by proving both that "it was highly impractical for [petitioner] to deal with each [flight engineer] over age 60 on an individualized basis to determine his particular ability to perform his job safely" and that some flight engineers "over age 60 possess traits of a physiological, psychological or other nature which preclude safe and efficient job performance that cannot be ascertained by means other than knowing their age." The District Court entered judgment based on the jury's verdict for the plaintiffs, and the Court of Appeals affirmed, rejecting petitioner's contention that the BFOQ instruction was insufficiently deferential to petitioner's legitimate concern for the safety of its passengers. [472 U.S. 400, 401] </s> Held: </s> 1. The ADEA's restrictive language, its legislative history, and the consistent interpretation of the administrative agencies charged with enforcing the statute establish that the BFOQ exception was meant to be an extremely narrow exception to the general prohibition of age discrimination contained in the ADEA. Pp. 409-412. </s> 2. The relevant considerations for resolving a BFOQ defense to an age-based qualification purportedly justified by safety interests are whether the job qualification is "reasonably necessary" to the overriding interest in public safety, and whether the employer is compelled to rely on age as a proxy for the safety-related job qualification validated in the first inquiry. The latter showing may be made by the employer's establishing either (a) that it had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform safely the duties of the job, or (b) that it is highly impractical to deal with the older employees on an individualized basis. Pp. 412-417. </s> 3. The jury here was properly instructed on the elements of the BFOQ defense under the above standard, and the instructions were sufficiently protective of public safety. Pp. 417-423. </s> (a) Petitioner's contention that the jury should have been instructed to defer to petitioner's selection of job qualifications for flight engineers "that are reasonable in light of the safety risks" is at odds with Congress' decision, in adopting the ADEA, to subject such decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of "reasonable necessity," not reasonableness. The public interest in safety is adequately reflected in instructions that track the statute's language. Pp. 418-420. </s> (b) The instructions were not defective for failing to inform the jury that an airline must conduct its operations "with the highest possible degree of safety." Viewing the record as a whole, the jury's attention was adequately focused on the importance of safety to the operation of petitioner's business. Pp. 420-421. </s> (c) There is no merit to petitioner's contention that the jury should have been instructed under the standard that the ADEA only requires that the employer establish "a rational basis in fact" for believing that identification of those persons lacking suitable qualifications cannot be made on an individualized basis. Such standard conveys a meaning that is significantly different from that conveyed by the statutory phrase "reasonably necessary," and is inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. Nor can such standard be justified on the ground that an employer must be allowed to resolve the controversy in a conservative [472 U.S. 400, 402] manner when qualified experts disagree as to whether persons over a certain age can be dealt with on an individual basis. Such argument incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony. Pp. 421-423. </s> 709 F.2d 544, affirmed. </s> STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the decision of the case. </s> Gordon Dean Booth, Jr., argued the cause for petitioner. With him on the briefs were William H. Boice, Joseph W. Dorn, and Wm. John Kennedy. </s> Raymond C. Fay argued the cause for respondents. With him on the brief were Alan M. Serwer and Susan D. Goland. </s> Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General Lee, Harriet S. Shapiro, Johnny J. Butler, and Philip B. Sklover. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the Air Line Pilots Association, International, by Michael E. Abram and Jay P. Levy-Warren; for American Airlines, Inc., by Richard A. Malahowski; for Delta Air Lines, Inc., by James W. Callison, Robert S. Harkey, and Thomas J. Kassin; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; for Pan American World Airways, Inc., by Robert S. Venning; and for Trans World Airlines, Inc., by Henry J. Oechler, Jr., Donald I. Strauber, and Peter N. Hillman. </s> Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Alfred Miller and Harry P. Cohen; for the American Civil Liberties Union et al. by Susan Deller Ross; and for the Flight Engineers International Association, American Airlines Chapter, AFL-CIO, by Asher Schwartz and David Rosen. </s> Howard C. Eglit filed a brief for the National Council on the Aging, Inc., et al. as amici curiae. </s> JUSTICE STEVENS delivered the opinion of the Court. </s> The petitioner, Western Air Lines, Inc., requires that its flight engineers retire at age 60. Although the Age Discrimination in Employment Act of 1967 (ADEA), [472 U.S. 400, 403] 29 U.S.C. 621-634, generally prohibits mandatory retirement before age 70, the Act provides an exception "where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business." 1 A jury concluded that Western's mandatory retirement rule did not qualify as a BFOQ even though it purportedly was adopted for safety reasons. The question here is whether the jury was properly instructed on the elements of the BFOQ defense. 2 </s> I </s> In its commercial airline operations, Western operates a variety of aircraft, including the Boeing 727 and the McDonnell-Douglas DC-10. These aircraft require three crew members in the cockpit: a captain, a first officer, and a flight engineer. "The `captain' is the pilot and controls the aircraft. He is responsible for all phases of its operation. The `first officer' is the copilot and assists the captain. The `flight engineer' usually monitors a side-facing instrument panel. He does not operate the flight controls unless the captain and the first officer become incapacitated." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 114 (1985). [472 U.S. 400, 404] </s> A regulation of the Federal Aviation Administration (FAA) prohibits any person from serving as a pilot or first officer on a commercial flight "if that person has reached his 60th birthday." 14 CFR 121.383(c) (1985). The FAA has justified the retention of mandatory retirement for pilots on the theory that "incapacitating medical events" and "adverse psychological, emotional, and physical changes" occur as a consequence of aging. "The inability to detect or predict with precision an individual's risk of sudden or subtle incapacitation, in the face of known age-related risks, counsels against relaxation of the rule." 49 Fed. Reg. 14695 (1984). See also 24 Fed. Reg. 9776 (1959). </s> At the same time, the FAA has refused to establish a mandatory retirement age for flight engineers. "While a flight engineer has important duties which contribute to the safe operation of the airplane, he or she may not assume the responsibilities of the pilot in command." 49 Fed. Reg., at 14694. Moreover, available statistics establish that flight engineers have rarely been a contributing cause or factor in commercial aircraft "accidents" or "incidents." Ibid. </s> In 1978, respondents Criswell and Starley were captains operating DC-10s for Western. Both men celebrated their 60th birthdays in July 1978. Under the collective-bargaining agreement in effect between Western and the union, cockpit crew members could obtain open positions by bidding in order of seniority. 3 In order to avoid mandatory retirement [472 U.S. 400, 405] under the FAA's under-age-60 rule for pilots, Criswell and Starley applied for reassignment as flight engineers. Western denied both requests, ostensibly on the ground that both employees were members of the company's retirement plan which required all crew members to retire at age 60. 4 For the same reason, respondent Ron, a career flight engineer, was also retired in 1978 after his 60th birthday. </s> Mandatory retirement provisions similar to those contained in Western's pension plan had previously been upheld under the ADEA. United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977). As originally enacted in 1967, the Act provided an exception to its general proscription of age discrimination for any actions undertaken "to observe the terms of a . . . bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this Act." 5 In April 1978, however, Congress amended the statute to prohibit employee benefit plans from requiring the involuntary retirement of any employee because of age. 6 </s> Criswell, Starley, and Ron brought this action against Western contending that the under-age-60 qualification for [472 U.S. 400, 406] the position of flight engineer violated the ADEA. In the District Court, Western defended, in part, on the theory that the age-60 rule is a BFOQ "reasonably necessary" to the safe operation of the airline. 7 All parties submitted evidence concerning the nature of the flight engineer's tasks, the physiological and psychological traits required to perform them, and the availability of those traits among persons over age 60. </s> As the District Court summarized, the evidence at trial established that the flight engineer's "normal duties are less critical to the safety of flight than those of a pilot." 514 F. Supp. 384, 390 (CD Cal. 1981). The flight engineer, however, does have critical functions in emergency situations and, of course, might cause considerable disruption in the event of his own medical emergency. </s> The actual capabilities of persons over age 60, and the ability to detect disease or a precipitous decline in their faculties, were the subject of conflicting medical testimony. Western's expert witness, a former FAA Deputy Federal Air Surgeon, 8 was especially concerned about the possibility of a "cardiovascular event" such as a heart attack. He testified that "with advancing age the likelihood of onset of disease increases and that in persons over age 60 it could not be predicted whether and when such diseases would occur." Id., at 389. </s> The plaintiffs' experts, on the other hand, testified that physiological deterioration is caused by disease, not aging, and that "it was feasible to determine on the basis of individual medical examinations whether flight deck crew members, including those over age 60, were physically qualified to continue [472 U.S. 400, 407] to fly." Ibid. These conclusions were corroborated by the nonmedical evidence: </s> "The record also reveals that both the FAA and the airlines have been able to deal with the health problems of pilots on an individualized basis. Pilots who have been grounded because of alcoholism or cardiovascular disease have been recertified by the FAA and allowed to resume flying. Pilots who were unable to pass the necessary examination to maintain their FAA first class medical certificates, but who continued to qualify for second class medical certificates were allowed to `down-grade' from pilot to [flight engineer]. There is nothing in the record to indicate that these flight deck crew members are physically better able to perform their duties than flight engineers over age 60 who have not experienced such events or that they are less likely to become incapacitated." Id., at 390. </s> Moreover, several large commercial airlines have flight engineers over age 60 "flying the line" without any reduction in their safety record. Ibid. </s> The jury was instructed that the "BFOQ defense is available only if it is reasonably necessary to the normal operation or essence of defendant's business." Tr. 2626. The jury was informed that "the essence of Western's business is the safe transportation of their passengers." Ibid. The jury was also instructed: </s> "One method by which defendant Western may establish a BFOQ in this case is to prove: </s> "(1) That in 1978, when these plaintiffs were retired, it was highly impractical for Western to deal with each second officer over age 60 on an individualized basis to determine his particular ability to perform his job safely; and </s> "(2) That some second officers over age 60 possess traits of a physiological, psychological or other nature [472 U.S. 400, 408] which preclude safe and efficient job performance that cannot be ascertained by means other than knowing their age. </s> "In evaluating the practicability to defendant Western of dealing with second officers over age 60 on an individualized basis, with respect to the medical testimony, you should consider the state of the medical art as it existed in July 1978." Id., at 2627. </s> The jury rendered a verdict for the plaintiffs, and awarded damages. After trial, the District Court granted equitable relief, explaining in a written opinion why it found no merit in Western's BFOQ defense to the mandatory retirement rule. 514 F. Supp., at 389-391. 9 </s> On appeal, Western made various arguments attacking the verdict and judgment below, but the Court of Appeals affirmed in all respects. 709 F.2d 544 (CA9 1983). In particular, the Court of Appeals rejected Western's contention that the instruction on the BFOQ defense was insufficiently deferential to the airline's legitimate concern for the safety of its passengers. Id., at 549-551. We granted certiorari to consider the merits of this question. 469 U.S. 815 (1984). 10 </s> [472 U.S. 400, 409] </s> II </s> Throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. "The basic research in the filed of aging has established that there is a wide range of individual physical ability regardless of age." 11 As a result, many older American workers perform at levels equal or superior to their younger colleagues. </s> In 1965, the Secretary of Labor reported to Congress that despite these well-established medical facts there "is persistent and widespread use of age limits in hiring that in a great many cases can be attributed only to arbitrary discrimination against older workers on the basis of age and regardless of ability." 12 Two years later, the President recommended that Congress enact legislation to abolish arbitrary age limits on [472 U.S. 400, 410] hiring. Such limits, the President declared, have a devastating effect on the dignity of the individual and result in a staggering loss of human resources vital to the national economy. 13 </s> After further study, 14 Congress responded with the enactment of the ADEA. The preamble declares that the purpose of the ADEA is "to promote employment of older persons based on their ability rather than age [and] to prohibit arbitrary age discrimination in employment." 81 Stat. 602, 29 U.S.C. 621(b). Section 4(a)(1) makes it "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 81 Stat. 603, 29 U.S.C. 623(a)(1). This proscription presently applies to all persons between the ages of 40 and 70. 29 U.S.C. 631(a). </s> The legislative history of the 1978 Amendments to the ADEA makes quite clear that the policies and substantive provisions of the Act apply with especial force in the case of mandatory retirement provisions. The House Committee on Education and Labor reported: </s> "Increasingly, it is being recognized that mandatory retirement based solely upon age is arbitrary and that chronological age alone is a poor indicator of ability to perform a job. Mandatory retirement does not take [472 U.S. 400, 411] into consideration actual differing abilities and capacities. Such forced retirement can cause hardships for older persons through loss of roles and loss of income. Those older persons who wish to be re-employed have a much more difficult time finding a new job than younger persons. </s> "Society, as a whole, suffers form mandatory retirement as well. As a result of mandatory retirement, skills and experience are lost from the work force resulting in reduced GNP. Such practices also add a burden to Government income maintenance programs such as social security." 15 </s> In the 1978 Amendments, Congress narrowed an exception to the ADEA which had previously authorized involuntary retirement under limited circumstances. See supra, at 405. </s> In both 1967 and 1978, however, Congress recognized that classification based on age, like classifications based on religion, sex, or national origin, may sometimes serve as a necessary proxy for neutral employment qualifications essential to the employer's business. The diverse employment situations in various industries, however, forced Congress to adopt a "case-by-case basis . . . as the underlying rule in the administration of the legislation." H. R. Rep. No. 805, 90th Cong., 1st Sess., 7 (1967), Legislative History 80. 16 Congress offered only general guidance on when an age classification [472 U.S. 400, 412] might be permissible by borrowing a concept and statutory language from Title VII of the Civil Rights Act of 1964 17 and providing that such a classification is lawful "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. 623(f)(1). </s> Shortly after the passage of the Act, the Secretary of Labor, who was at that time charged with its enforcement, adopted regulations declaring that the BFOQ exception to the ADEA has only "limited scope and application" and "must be construed narrowly." 33 Fed. Reg. 9172 (1968), 29 CFR 860.102(b) (1984). The Equal Employment Opportunity Commission (EEOC) adopted the same narrow construction of the BFOQ exception after it was assigned authority for enforcing the statute. 46 Fed. Reg. 47727 (1981), 29 CFR 1625.6 (1984). The restrictive language of the statute and the consistent interpretation of the administrative agencies charged with enforcing the statute convince us that, like its Title VII counterpart, the BFOQ exception "was in fact meant to be an extremely narrow exception to the general prohibition" of age discrimination contained in the ADEA. Dothard v. Rawlinson, 433 U.S. 321, 334 (1977). </s> III </s> In Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (1976), the Court of Appeals for the Fifth Circuit was called upon to evaluate the merits of a BFOQ defense to a claim of age discrimination. Tamiami Trail Tours, Inc., had a policy of refusing to hire persons over age 40 as intercity bus drivers. At trial, the bus company introduced testimony supporting its theory that the hiring policy was a BFOQ based [472 U.S. 400, 413] upon safety considerations - the need to employ persons who have a low risk of accidents. In evaluating this contention, the Court of Appeals drew on its Title VII precedents, and concluded that two inquiries were relevant. </s> First, the court recognized that some job qualifications may be so peripheral to the central mission of the employer's business that no age discrimination can be "reasonably necessary to the normal operation of the particular business." 18 29 U.S.C. 623(f)(1). The bus company justified the age qualification for hiring its drivers on safety considerations, but the court concluded that this claim was to be evaluated under an objective standard: </s> "[T]he job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business - here, the safe transportation of bus passengers from one point to another. The greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving." 531 F.2d, at 236. </s> This inquiry "adjusts to the safety factor" by ensuring that the employer's restrictive job qualifications are "reasonably necessary" to further the overriding interest in public safety. Ibid. In Tamiami, the court noted that no one had seriously [472 U.S. 400, 414] challenged the bus company's safety justification for hiring drivers with a low risk of having accidents. </s> Second, the court recognized that the ADEA requires that age qualifications be something more than "convenient" or "reasonable"; they must be "reasonably necessary . . . to the particular business," and this is only so when the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry. 19 This showing could be made in two ways. The employer could establish that it "`had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all [persons over the age qualifications] would be unable to perform safely and efficiently the duties of the job involved.'" 20 In Tamiami, the employer did not seek to justify its hiring qualification under this standard. </s> Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is "`impossible or highly impractical'" to deal with the older employees on an individualized basis. 21 "One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance [472 U.S. 400, 415] that cannot be ascertained by means other than knowledge of the applicant's membership in the class." Id., at 235. In Tamiami, the medical evidence on this point was conflicting, but the District Court had found that individual examinations could not determine which individuals over the age of 40 would be unable to operate the buses safely. The Court of Appeals found that this finding of fact was not "clearly erroneous," and affirmed the District Court's judgment for the bus company on the BFOQ defense. Id., at 238. </s> Congress, in considering the 1978 Amendments, implicitly endorsed the two-part inquiry identified by the Fifth Circuit in the Tamiami case. The Senate Committee Report expressed concern that the amendment prohibiting mandatory retirement in accordance with pension plans might imply that mandatory retirement could not be a BFOQ: </s> "For example, in certain types of particularly arduous law enforcement activity, there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees' capacity or ability to continue to perform the jobs safely and efficiently. </s> "Accordingly, the committee adopted an amendment to make it clear that where these two conditions are satisfied and where such a bona fide occupational qualification has therefore been established, an employer may lawfully require mandatory retirement at that specified age." S. Rep. No. 95-493, pp. 10-11 (1977), Legislative History 443-444. </s> The amendment was adopted by the Senate, but deleted by the Conference Committee because it "neither added to nor [472 U.S. 400, 416] worked any change upon present law." 22 H. R. Conf. Rep. No. 95-950, p. 7 (1978), Legislative History 518. </s> Every Court of Appeals that has confronted a BFOQ defense based on safety considerations has analyzed the problem consistently with the Tamiami standard. 23 An EEOC regulation embraces the same criteria. 24 Considering the narrow language of the BFOQ exception, the parallel treatment of such questions under Title VII, and the uniform application of the standard by the federal courts, the EEOC, and Congress, we conclude that this two-part inquiry properly [472 U.S. 400, 417] identifies the relevant considerations for resolving a BFOQ defense to an age-based qualification purportedly justified by considerations of safety. </s> IV </s> In the trial court, Western preserved an objection to any instruction in the Tamiami mold, claiming that "any instruction pertaining to the statutory phrase `reasonably necessary to the normal operation of [defendant's] business' . . . is irrelevant to and confusing for the deliberations of the jury." 25 Western proposed an instruction that would have allowed it to succeed on the BFOQ defense by proving that "in 1978, when these plaintiffs were retired, there existed a rational basis in fact for defendant to believe that use of [flight engineers] over age 60 on its DC-10 airliners would increase the likelihood of risk to its passengers." 26 The proposed instruction went on to note that the jury might rely on the FAA's age-60 rule for pilots to establish a BFOQ under this standard "without considering any other evidence." 27 It also noted that the medical evidence submitted by the parties might provide a "rational basis in fact." </s> On appeal, Western defended its proposed instruction, and the Court of Appeals soundly rejected it. 709 F.2d, at 549-551. In this Court, Western slightly changes its course. [472 U.S. 400, 418] The airline now acknowledges that the Tamiami standard identifies the relevant general inquiries that must be made in evaluating the BFOQ defense. However, Western claims that in several respects the instructions given below were insufficiently protective of public safety. Western urges that we interpret or modify the Tamiami standard to weigh these concerns in the balance. </s> Reasonably Necessary Job Qualifications </s> Western relied on two different kinds of job qualifications to justify its mandatory retirement policy. First, it argued that flight engineers should have a low risk of incapacitation or psychological and physiological deterioration. At this vague level of analysis respondents have not seriously disputed - nor could they - that the qualification of good health for a vital crew member is reasonably necessary to the essence of the airline's operations. Instead, they have argued that age is not a necessary proxy for that qualification. </s> On a more specific level, Western argues that flight engineers must meet the same stringent qualifications as pilots, and that it was therefore quite logical to extend to flight engineers the FAA's age-60 retirement rule for pilots. Although the FAA's rule for pilots, adopted for safety reasons, is relevant evidence in the airline's BFOQ defense, it is not to be accorded conclusive weight. Johnson v. Mayor and City Council of Baltimore, ante, at 370-371. The extent to which the rule is probative varies with the weight of the evidence supporting its safety rationale and "the congruity between the . . . occupations at issue." Ante, at 371. In this case, the evidence clearly established that the FAA, Western, and other airlines all recognized that the qualifications for a flight engineer were less rigorous than those required for a pilot. 28 </s> [472 U.S. 400, 419] </s> In the absence of persuasive evidence supporting its position, Western nevertheless argues that the jury should have been instructed to defer to "Western's selection of job qualifications for the position of [flight engineer] that are reasonable in light of the safety risks." Brief for Petitioner 30. This proposal is plainly at odds with Congress' decision, in adopting the ADEA, to subject such management decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of "reasonable necessity," not reasonableness. </s> In adopting that standard, Congress did not ignore the public interest in safety. That interest is adequately reflected in instructions that track the language of the statute. When an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is "reasonably necessary" to safe operation of the business. The uncertainty implicit in the concept of managing safety risks always makes it "reasonably necessary" to err on the side of caution in a close case. 29 The employer cannot be expected to establish the risk of an airline accident "to a certainty, for certainty would require running the risk until a tragic accident would [472 U.S. 400, 420] prove that the judgment was sound." Usery v. Tamiami Trail Tours, Inc., 531 F.2d, at 238. When the employer's argument has a credible basis in the record, it is difficult to believe that a jury of laypersons - many of whom no doubt have flown or could expect to fly on commercial air carriers - would not defer in a close case to the airline's judgment. Since the instructions in this case would not have prevented the airline form raising this contention to the jury in closing argument, we are satisfied that the verdict is a consequence of a defect in Western's proof rather than a defect in the trial court's instructions. 30 </s> Western's Statutory Safety Obligation </s> The instructions defined the essence of Western's business as "the safe transportation of their passengers." Tr. 2626. Western complains that this instruction was defective because it failed to inform the jury that an airline must conduct its operations "with the highest possible degree of safety." 31 </s> Jury instructions, of course, "may not be judged in artificial isolation," but must be judged in the "context of the overall charge" and the circumstances of the case. See Cupp v. Naughten, 414 U.S. 141, 147 (1973). In this case, the instructions characterized safe transportation as the "essence" [472 U.S. 400, 421] of Western's business and specifically referred to the importance of "safe and efficient job performance" by flight engineers. Tr. 2627. Moreover, in closing argument counsel pointed out that because "safety is the essence of Western's business," the airline strives for "the highest degree possible of safety." 32 Viewing the record as a whole, we are satisfied that the jury's attention was adequately focused on the importance of safety to the operation of Western's business. Cf. United States v. Park, 421 U.S. 658, 674 (1975). </s> Age as a Proxy for Job Qualifications </s> Western contended below that the ADEA only requires that the employer establish "a rational basis in fact" for believing that identification of those persons lacking suitable qualifications cannot occur on an individualized basis. 33 This "rational basis in fact" standard would have been tantamount to an instruction to return a verdict in the defendant's favor. Because that standard conveys a meaning that is significantly different from that conveyed by the statutory phrase "reasonably necessary," it was correctly rejected by the trial court. 34 </s> [472 U.S. 400, 422] </s> Western argues that a "rational basis" standard should be adopted because medical disputes can never be proved "to a certainty" and because juries should not be permitted "to resolve bona fide conflicts among medical experts respecting the adequacy of individualized testing." Reply Brief for Petitioner 9, n. 10. The jury, however, need not be convinced beyond all doubt that medical testing is impossible, but only that the proposition is true "on a preponderance of the evidence." Moreover, Western's attack on the wisdom of assigning the resolution of complex questions to 12 laypersons is inconsistent with the structure of the ADEA. Congress expressly decided that problems involving age discrimination in employment should be resolved on a "case-by-case basis" by proof to a jury. 35 </s> The "rational basis" standard is also inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. 36 Under the Act, employers are to evaluate employees between the ages of 40 and 70 on their merits and not their age. In the BFOQ defense, Congress provided a limited exception to this general principle, but required that employers validate any discrimination as "reasonably necessary to the normal operation of the particular business." It might well be "rational" to require mandatory retirement at any age less than 70, but that result would not comply with Congress' direction that employers must justify the rationale for the age chosen. Unless an employer can establish a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position, the age selected for mandatory retirement less than 70 must be an age at which it [472 U.S. 400, 423] is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job. </s> Western argues that its lenient standard is necessary because "where qualified experts disagree as to whether persons over a certain age can be dealt with on an individual basis, an employer must be allowed to resolve that controversy in a conservative manner." Reply Brief for Petitioner 8-9. This argument incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony. In this case, the jury may well have attached little weight to the testimony of Western's expert witness. See supra, at 406, and n. 8. A rule that would require the jury to defer to the judgment of any expert witness testifying for the employer, no matter how unpersuasive, would allow some employers to give free reign to the stereotype of older workers that Congress decried in the legislative history of the ADEA. </s> When an employee covered by the Act is able to point to reputable businesses in the same industry that choose to eschew reliance on mandatory retirement earlier than age 70, when the employer itself relies on individualized testing in similar circumstances, and when the administrative agency with primary responsibility for maintaining airline safety has determined that individualized testing is not impractical for the relevant position, the employer's attempt to justify its decision on the basis of the contrary opinion of experts - solicited for the purposes of litigation - is hardly convincing on any objective standard short of complete deference. Even in cases involving public safety, the ADEA plainly does not permit the trier of fact to give complete deference to the employer's decision. </s> The judgment of the Court of Appeals is </s> Affirmed. </s> JUSTICE POWELL took no part in the decision of this case. </s> Footnotes [Footnote 1 Section 4(f)(1) of the ADEA provides: </s> "It shall not be unlawful for an employer . . . </s> "(1) to take any action otherwise prohibited . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business . . . ." 81 Stat. 603, 29 U.S.C. 623(f)(1). </s> [Footnote 2 In Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), decided earlier this Term, TWA allowed flight engineers to continue working past age 60, and allowed pilots to downbid to flight engineer positions provided that they were able to find an open position prior to their 60th birthdays. See id., at 115-116. Pilots who were displaced for any reason besides the Federal Aviation Administration's age-60 rule, however, were permitted to "bump" less senior persons occupying flight engineer positions without waiting for vacancies to occur. We held that this transfer policy discriminated among pilots on the basis of age, and violated the ADEA. Since TWA did not impose an under-age-60 qualification for flight engineers, however, it had no occasion to rely on the same BFOQ theory presented here by Western. </s> [Footnote 3 While this lawsuit was proceeding to trial, Criswell and Starley also pursued their remedies under the collective-bargaining agreement. The System Wide Board of Adjustment, over a dissent, ultimately ruled that the contract provision that appeared to authorize the pilots' downbidding was only intended to allow senior pilots operating narrow-body equipment to bid for first officer or flight engineer positions on wide-body aircraft. App. to Pet. for Cert. A84-A90. Since Criswell and Starley were already serving on wide-body aircraft, the provision did not apply to them. The Board also concluded that the provision would not support a transfer "for the obvious purpose of evading the application of [the] agreed retirement plan." Id., at A89. Western relied on this ground in its motion for summary [472 U.S. 400, 405] judgment, but the District Court concluded that material questions of fact remained on the question of whether age was a substantial and determinative factor in the denial of the downbids. Id., at A81. </s> [Footnote 4 The Western official who was responsible for the decision to retire the plaintiffs conceded that "the sole basis" for the denial of the applications of Criswell, Starley, and Ron was the same: "the provision in the pension plan regarding retirement at age 60." Tr. 1163. In addition, he admitted that he had "no personal knowledge" of any safety rationale for the under-age-60 rule for flight engineers, id., at 2059, nor had it played any significant role in his decision to retire them. See id., at 61, 2027-2033, 2056-2057. The airline sent Starley and Ron form letters informing them of its "considered judgment after examining all of the applicable statutory law that since you have been a member of our Pilot retirement plan, that we cannot continue your employment beyond the normal retirement date of age 60." See App. 89, 91. </s> [Footnote 5 4(f)(2), 81 Stat. 603, 29 U.S.C. 623(f)(2). </s> [Footnote 6 92 Stat. 189, 29 U.S.C. 623(f)(2). </s> [Footnote 7 Western also contended that its denials of the downbids by pilots Starley and Criswell were based on "reasonable factors other than age." 29 U.S.C. 623(f)(1); see n. 10, infra. </s> [Footnote 8 Although the witness had served with the FAA for seven years ending in 1979, he conceded that throughout his tenure at the FAA he never had advocated that the agency extend the age-60 rule to flight engineers. Tr. 1521. </s> [Footnote 9 After the judgment in the Criswell action, eight other pilots and one career flight officer filed a separate action seeking similar relief. A preliminary injunction was granted on behalf of the flight engineer, and Western appealed. The Court of Appeals consolidated the appeal with Western's appeal in Criswell, and affirmed the preliminary injunction. 709 F.2d 544, 558-559 (CA9 1983). The plaintiffs in the collateral action are respondents here. </s> [Footnote 10 One of Western's claims in the trial court was that its refusal to allow pilots to serve as flight engineers after they reached age 60 was based on "reasonable factors other than age" (RFOA), namely, a facially neutral policy embodied in its collective-bargaining agreement which prohibited downbidding. See nn. 3 and 7, supra. The jury rejected this defense in its verdict. On appeal, Western claimed that the instructions had improperly required it to bear the burden of proof on the RFOA issue inasmuch as the burden of persuasion on the issue of age discrimination is at all times on [472 U.S. 400, 409] the plaintiff. Cf. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Co. v. Waters, 438 U.S. 567 (1978). The Court of Appeals rejected this claim on the merits. 709 F.2d, at 552-553. We granted certiorari to consider the merits of this question, 469 U.S. 815 (1984), but as we read the instructions the burden was placed on the plaintiffs on the RFOA issue. The general instruction on the question of discrimination provided that the "burden of proof is on the plaintiffs to show discriminatory treatment on the basis of age." App. 58. The instructions expressly informed the jury when the burden shifted to the defendant to prove various issues, e. g., id., at 60 (business necessity); id., at 61 (BFOQ), but did not so inform the jury in the RFOA instruction, id., at 62-63. Because the plaintiffs were assigned the burden of proof, we need not consider whether it would have been error to assign it to the defendant. </s> [Footnote 11 Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment 9 (1965) (hereinafter Report), EEOC, Legislative History of the Age Discrimination in Employment Act 26 (1981) (hereinafter Legislative History). See also S. Rep. No. 95-493, p. 2 (1977), Legislative History 435 ("Scientific research . . . indicates that chronological age alone is a poor indicator of ability to perform a job"). </s> [Footnote 12 Report, at 21, Legislative History 37. </s> [Footnote 13 "Hundreds of thousands not yet old, not yet voluntarily retired, find themselves jobless because of arbitrary age discrimination. Despite our present low rate of unemployment, there has been a persistent average of 850,000 people age 45 and over who are unemployed. </s> . . . . . </s> "In economic terms, this is a serious - and senseless - loss to a nation on the move. But the greater loss is the cruel sacrifice in happiness and well-being which joblessness imposes on these citizens and their families." H. R. Doc. No. 40, 90th Cong., 1st Sess., 7 (1967), Legislative History 61. </s> [Footnote 14 See EEOC v. Wyoming, 460 U.S. 226, 230 (1983). </s> [Footnote 15 H. R. Rep. No. 95-527, pt. 1, p. 2 (1977), Legislative History 362. Cf. S. Rep. No. 95-493, p. 4 (1977), Legislative History 437 ("The committee believes that the arguments for retaining existing mandatory retirement policies are largely based on misconceptions rather than upon a careful analysis of the facts"). </s> [Footnote 16 "Many different types of employment situations prevail. Administration of this law must place emphasis on case-by-case basis, with unusual working conditions weighed on their own merits. The purpose of this legislation, simply stated, is to insure that age, within the limits prescribed herein, is not a determining factor in a refusal to hire." S. Rep. No. 723, 90th Cong., 1st Sess., 7 (1967), Legislative History 111. </s> [Footnote 17 Section 703(e) of Title VII permits classifications based on religion, sex or national origin in those certain instances "where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. 2000e-2(e)(1). </s> [Footnote 18 Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (CA5), cert. denied, 404 U.S. 950 (1971), provided authority for this proposition. In Diaz the court had rejected Pan American's claim that a female-only qualification for the position of in-flight cabin attendant was a BFOQ under Title VII. The District Court had upheld the qualification as a BFOQ finding that the airline's passengers preferred the "pleasant environment" and the "cosmetic effect" provided by female attendants, and that most men were unable to perform effectively the "non-mechanical functions" of the job. The Court of Appeals rejected the BFOQ defense concluding that these considerations "are tangential to the essence of the business involved." 442 F.2d, at 388. </s> [Footnote 19 Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (CA5 1969), provided authority for this proposition. In Weeks the court rejected Southern Bell's claim that a male-only qualification for the position of switchman was a BFOQ under Title VII. Southern Bell argued, and the District Court had found, that the job was "strenuous," but the court observed that that "finding is extremely vague." Id., at 234. The court rejected the BFOQ defense concluding that "using these class stereotypes denies desirable positions to a great many women perfectly capable of performing the duties involved." Id., at 236. Moreover, the employer had made no showing that it was "impossible or highly impractical to deal with women on an individualized basis." Id., at 235, n. 5. </s> [Footnote 20 531 F.2d, at 235 (quoting Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d, at 235). </s> [Footnote 21 531 F.2d, at 235 (quoting Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d, at 235, n. 5). </s> [Footnote 22 Senator Javits, an active proponent of the legislation, obviously viewed the BFOQ defense as a narrow one when he explained that it could be proved when "the employer can demonstrate that there is an objective, factual basis for believing that virtually all employees above a certain age are unable to safely perform the duties of their jobs and where, in addition, there is no practical medical or performance test to determine capacity." 123 Cong. Rec. 34319 (1977), Legislative History 506. See also H. R. Rep. No. 95-527, pt. 1, p. 12, Legislative History 372. </s> [Footnote 23 See, e. g., Monroe v. United Air Lines, Inc., 736 F.2d 394 (CA7 1984), cert. denied, 470 U.S. 1004 (1985); Johnson v. American Airlines, Inc., 745 F.2d 988, 993-994 (CA5 1984), cert. pending, No. 84-1271; 709 F.2d, at 550 (case below); Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743, 752-753 (CA7), cert. denied, 464 U.S. 992 (1983); Tuohy v. Ford Motor Co., 675 F.2d 842, 844-845 (CA6 1982); Smallwood v. United Air Lines, Inc., 661 F.2d 303, 307 (CA4 1981), cert. denied, 456 U.S. 1007 (1982); Arritt v. Grisell, 567 F.2d 1267, 1271 (CA4 1977). Cf. Harriss v. Pan American World Airways, Inc., 649 F.2d 670, 676-677 (CA9 1980) (Title VII). </s> [Footnote 24 46 Fed. Reg. 47727 (1981), 29 CFR 1625.6(b) (1984): </s> "An employer asserting a BFOQ defense has the burden of proving that (1) the age limit is reasonably necessary to the essence of the business, and either (2) that all or substantially all individuals excluded from the job involved are in fact disqualified, or (3) that some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age. If the employer's objective in asserting a BFOQ is the goal of public safety, the employer must prove that the challenged practice does indeed effectuate that goal and that there is no acceptable alternative which would better advance it or equally advance it with less discriminatory impact." </s> [Footnote 25 Record, Doc. No. 164 (objections to plaintiffs proposed BFOQ instruction). </s> [Footnote 26 Ibid. (Defendant's Proposed Instruction No. 19) (emphasis added). In support of the "rational basis in fact" language in the proposed instruction Western cited language in the Seventh Circuit's opinion in Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (1974), cert. denied, 419 U.S. 1122 (1975), which had been criticized by the Fifth Circuit panel in Tamiami and which the Seventh Circuit later repudiated. Orzel v. City of Wauwatosa Fire Dept., 697 F.2d, at 752-753. Western also relied on the District Court's opinion in Tuohy v. Ford Motor Co., 490 F. Supp. 258 (ED Mich. 1980), which was reversed on appeal, 675 F.2d 842 (CA6 1982). </s> [Footnote 27 Record, Doc. No. 164 (Defendant's Proposed Instruction No. 19.1). </s> [Footnote 28 As the Court of Appeals noted, the "jury heard testimony that Western itself allows a captain under the age of sixty who cannot, for health reasons, continue to fly as a captain or co-pilot to downbid to a position as [472 U.S. 400, 419] second officer. [In addition,] half the pilots flying in the United States are flying for major airlines which do not require second officers to retire at the age of sixty, and . . . there are over 200 such second officers currently flying on wide-bodied aircraft." 709 F.2d, at 552. See also supra, at 406-407. </s> [Footnote 29 Several Courts of Appeals have recognized that safety considerations are relevant in making or reviewing findings of fact. See, e. g., Levin v. Delta Air Lines, Inc., 730 F.2d 994, 998 (CA5 1984); Orzel v. City of Wauwatosa Fire Dept., 697 F.2d, at 755; Tuohy v. Ford Motor Co., 675 F.2d, at 845; Murnane v. American Airlines, Inc., 215 U.S. App. D.C. 55, 58, 667 F.2d 98, 101 (1981), cert. denied, 456 U.S. 915 (1982); Hodgson v. Greyhound Lines, Inc., 499 F.2d, at 863. Such considerations, of course, are only relevant at the margin of a close case, and do not relieve the employer from its burden of establishing the BFOQ by the preponderance of credible evidence. </s> [Footnote 30 Moreover, we do not find that petitioner's proposed instructions made any reference to the notion of deference to the expertise of the employer, except insofar as that concept was implicit in the "rational basis in fact" standard reflected in its proposed instructions. As we reject that standard as inconsistent with the statute, infra, at 421-423, we are somewhat reluctant to fault the trial judge for not giving an instruction that was not requested. </s> [Footnote 31 This standard is set forth in the Federal Aviation Act, which provides, in part: </s> "In prescribing standards, rules, and regulations, and in issuing certificates under this subchapter, the Secretary of Transportation shall give full consideration to the duty resting upon air carriers to perform their services with the highest possible degree of safety in the public interest . . . ." 49 U.S.C. App. 1421(b) (emphasis added). </s> [Footnote 32 "We have tried to present, throughout the case, our view that safety is the essence of Western's business. It is the core, it is what the air passenger service business is all about. We have a duty to our passengers, which we consider to be the most important duty of all the business operations that we engage in, including making money. Our first duty is that the passengers and the crews on all our aircraft are safe. And we attempt to render to them the highest degree possible of safety." Tr. 2514. </s> [Footnote 33 In this Court Western proposes a "factual basis" standard. We do not perceive any substantial difference between this standard and the instruction that it sought below, and we discuss the question as it was raised in the proposed instructions, and discussed in the Court of Appeals. </s> [Footnote 34 This standard has been rejected by nearly every court to consider it. 709 F.2d, at 550-551 (case below); Orzel v. City of Wauwatosa Fire Dept., 697 F.2d, at 755-756; Tuohy v. Ford Motor Co., 675 F.2d, at 845; Harriss v. Pan American World Airways, Inc., 649 F.2d, at 677; Arritt v. Grisell, 567 F.2d, at 1271; Usery v. Tamiami Trial Tours, Inc., 531 F.2d, at 235-236. </s> [Footnote 35 Supra, at 411, and n. 16; 29 U.S.C. 626(c)(2); Lorillard v. Pons, 434 U.S. 575 (1978). </s> [Footnote 36 Indeed, under a "rational basis" standard a jury might well consider that its "inquiry is at an end" with an expert witness' articulation of any "plausible reaso[n]" for the employer's decision. Cf. United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179 (1980). </s> [472 U.S. 400, 424]

United States Supreme Court ENGINEERS v. CHICAGO, R. I. & P. R. CO.(1966) No. 69 Argued: Decided: January 31, 1966 </s> [Footnote * Together with No. 71, Hardin et al. v. Chicago, Rock Island & Pacific Railroad Co. et al., also on appeal from the same court. </s> Appellees, a group of interstate railroads operating in Arkansas, sued in District Court for declaratory and injunctive relief on the ground that two Arkansas statutes which provided for train crews of minimum sizes were unconstitutional. Appellees claimed that as to them the statutes violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Commerce Clause; that they discriminated against interstate, and favored intrastate, commerce because by exempting lines below certain mileages they excluded from coverage all intrastate railroads but included most of the interstate railroads operating in Arkansas; and that they invaded a legislative field primarily pre-empted by the Federal Government with the enactment in 1963 of Public Law 88-108. That statute provided for compulsory arbitration of then current collective bargaining disputes over the use of railroad firemen and over manning levels for railroad crews and for arbitration awards that were to expire two years after the awards went into effect. A three-judge District Court granted appellees' motion for summary judgment on the single ground that the Arkansas statutes conflicted with Public Law 88-108, which was held to pre-empt the field of regulation. Held: </s> 1. Since there were substantial constitutional challenges in this case in addition to the pre-emption issue, it was proper to convene a three-judge District Court, from whose judgment a direct appeal lies to this Court. Swift & Co. v. Wickham, ante, p. 111, distinguished. P. 428. </s> 2. It was not the legislative purpose of Public Law 88-108 to pre-empt the field of manning-level regulation and supersede States' full-crew laws, nor was that the effect of the statute or of the arbitration awards made thereunder. Pp. 429-437. [382 U.S. 423, 424] </s> (a) As held in Missouri Pac. R. Co. v. Norwood, 283 U.S. 249 , at 256, one of three cases in which this Court upheld the Arkansas statutes against federal pre-emption charges, Congress in the absence of a clearly expressed purpose, will not be held to have intended to prevent exercise of the States' police power to regulate crew sizes. P. 429. </s> (b) The problem of railroad manning levels, and particularly whether or not retention of firemen is necessary, has led to constant collective bargaining disputes between the railroads and unions. Public Law 88-108 was enacted to deal with such a dispute which began in 1959 and by 1963, despite various settlement efforts, reached an impasse which threatened to result in a nationwide strike. Pp. 429-431. </s> (c) The statute was intended to deal with that emergency on a temporary basis only and was not designed either permanently to supplant collective bargaining over manning levels or to supersede state full-crew laws. Pp. 431-437. </s> 3. The record in this case does not support a conclusion that the mileage bases fixed for application of the statutes were irrational and discriminatory. Pp. 437-438. </s> 4. The cause is remanded to the District Court for consideration of the constitutional issues not yet decided. P. 438. </s> 239 F. Supp. 1, reversed and remanded. </s> James E. Youngdahl argued the cause for appellants in No. 69. With him on the briefs was Eugene F. Mooney. Jack L. Lessenberry argued the cause for appellants in No. 71. With him on the brief was Bruce Bennett, Attorney General of Arkansas. </s> Robert V. Light and Dennis G. Lyons argued the cause for appellees in both cases. With them on the brief were Thurman Arnold, W. J. Smith, H. H. Friday and R. W. Yost. </s> Briefs of amici curiae, urging reversal, were filed by Bronson C. La Follette, Attorney General, and Beatrice Lampert, Assistant Attorney General, for the State of Wisconsin; by John J. O'Connell, Attorney General, and Frank P. Hayes, James R. Cunningham and Paul [382 U.S. 423, 425] Coughlin, Assistant Attorneys General, for the State of Washington; and by the following Attorneys General for their respective States: Arthur K. Bolton of Georgia, John J. Dillon of Indiana, Jack P. F. Gremillion of Louisiana, Forrest H. Anderson of Montana, Frank L. Farrar of South Dakota, and Waggoner Carr of Texas. </s> Briefs of amici curiae, urging affirmance, were filed by William P. Rogers, Robert M. Lane, Gerald E. Dwyer, Victor F. Condello, Jordan Jay Hillman, Joseph S. Gill and Woodrow L. Taylor for Associated Railways of Indiana et al., and by Francis M. Shea, Richard T. Conway, William H. Dempsey, Jr., Ralph J. Moore, Jr., James R. Wolfe and Charles I. Hopkins, Jr., for the National Railway Labor Conference. </s> Opinion of the Court by MR. JUSTICE BLACK, announced by MR. CHIEF JUSTICE WARREN. </s> Appellees, a group of interstate railroads operating in Arkansas, brought this action in a United States District Court asking that court to declare two Arkansas statutes unconstitutional and to enjoin two Arkansas Prosecuting Attorneys, appellants here, from enforcing or attempting to enforce the two state statutes. The railroad brotherhoods, also appellants here, were allowed to intervene in the District Court in order to defend the validity of the state statutes. One of those statutes, enacted in 1907, makes it an offense for a railroad operating a line of more than 50 miles to haul freight trains consisting of more than 25 cars without having a train crew consisting of not "less than an engineer, a fireman, a conductor and three brakemen . . . ." 1 The second statute challenged by the railroads, enacted in 1913, makes it an offense for any railroad operating with lines 100 miles or more [382 U.S. 423, 426] in length to engage in switching activities in cities of designated populations, with "less than one 1. engineer, a fireman, a foreman and three 3. helpers. . . ." 2 The complaint charged that, as applied to the plaintiff railroads, both statutes (1) operate in an "arbitrary, capricious, discriminatory and unreasonable" manner in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (2) unduly interfere with, burden and needlessly increase the cost of interstate commerce in violation of the Commerce Clause, Art. I, 8, cl. 3, of the Constitution, and contrary to the National Transportation Policy expressed in the Interstate Commerce Act; (3) discriminate against interstate commerce in favor of local or intrastate commerce; and (4) by seeking to regulate and control the number of persons working on interstate railroad locomotives and cars invade a field of legislation pre-empted by the Federal Government primarily through federal enactment of Public Law 88-108 passed by Congress in 1963. 3 This law was passed to avert a nationwide railroad strike threatened by a labor dispute between the national railroads and the brotherhoods over the number of employees that should be used on trains. </s> In their complaint the railroads admitted that this Court had on three separate occasions, in 1911, 4 in 1916, 5 and again in 1931, 6 sustained the constitutionality of both state statutes against the same Fourteenth Amendment and Commerce Clause challenges made in the [382 U.S. 423, 427] present action. The complaint alleged, however, that improvements have now been so great in locomotives, freight cars, couplers, brakes, trackage, roadbeds, and operating methods that the facts on which the prior holdings rested no longer exist. The brotherhoods and the two defendant Prosecuting Attorneys answered the complaint asserting the constitutionality of the Acts and denying that there had been a change in conditions so significant as to justify any departure from this Court's prior decisions. The brotherhoods' answer alleged that modern developments had actually multiplied the dangers of railroading thus making the Arkansas statutes more necessary than ever. The pleadings therefore, at least to some extent, presented factual issues calling for the introduction and determination of evidence under prior holdings of this Court. See, e. g., Southern Pacific Co. v. Arizona, 325 U.S. 761 . At this stage of the trial, however, the railroads, claiming there was no substantial dispute in the evidence with reference to any relevant issues, filed a motion for summary judgment under Rule 56, Fed. Rules Civ. Proc. alleging that: (1) Both state statutes are "pre-empted by federal legislation in conflict therewith, to-wit: Public Law 88-108 and the award of Arbitration Board No. 282 pursuant thereto; the Railway Labor Act . . .; and the Interstate Commerce Act . . . particularly the preamble thereto"; (2) the state statutes constitute discriminatory legislation against interstate commerce in violation of the Commerce Clause; and (3) the state statutes deny the railroads equal protection of the laws in violation of the Fourteenth Amendment. Without hearing any evidence the three-judge court convened to consider the case sustained the railroads' motion for summary judgment, holding, one judge dissenting, that the Arkansas statutes are "in substantial conflict with Public Law 88-108 . . . and the proceedings thereunder, and are therefore unenforceable [382 U.S. 423, 428] against the plaintiffs . . . ." 239 F. Supp. 1, 29. The District Court did not purport to rule on the other questions presented in the motion for summary judgment and the complaint. We noted probable jurisdiction, 381 U.S. 949 . </s> A few weeks ago this Court held in Swift & Co. v. Wickham, ante, p. 111, that an allegation that a state statute is pre-empted by a federal statute does not allege the unconstitutionality of the state statute so as to call for the convening of a three-judge court under 28 U.S.C. 2281 (1964 ed.). Thus, under Swift, the pre-emption issue in this case standing alone would not have justified a three-judge court, and hence would not have justified direct appeal to us under 28 U.S.C. 1253 (1964 ed.). The complaint here, however, also challenged the Arkansas statutes as being in violation of the Commerce, Due Process, and Equal Protection Clauses. In briefs submitted to us after oral argument the appellants have argued that all these constitutional challenges are so insubstantial as a matter of law that they are insufficient to make this an appropriate case for a three-judge court. We cannot accept that argument. Whatever the ultimate holdings on the questions may be we cannot dismiss them as insubstantial on their face. Nor does the fact that the pre-emption issue alone was passed on by the District Court keep this from being a three-judge case. Had all the issues been tried by the District Court and had that court enjoined enforcement of the state laws on pre-emption alone, we would have had jurisdiction of a direct appeal to us under 28 U.S.C. 1253 (1964 ed.). Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73 . The same is true here where the state laws were enjoined on the basis of pre-emption but the other constitutional challenges were left undecided. Thus we have jurisdiction and so proceed to the merits. [382 U.S. 423, 429] </s> I. </s> We first consider the question of pre-emption. Congress unquestionably has power under the Commerce Clause to regulate the number of employees who shall be used to man trains used in interstate commerce. In the absence of congressional legislation on that subject, however, the States have extensive power of their own to regulate in this field, particularly to protect the safety of railroad employees and the public. This Court said in Missouri Pac. R. Co. v. Norwood, one of the previous decisions upholding the constitutionality of these Arkansas statutes, that: </s> "In the absence of a clearly expressed purpose so to do Congress will not be held to have intended to prevent the exertion of the police power of the States for the regulation of the number of men to be employed in such crews." 283 U.S., at 256 . </s> See also the same case, 290 U.S. 600 . </s> In view of Norwood and the two preceding cases, all of which sustained the constitutionality of the Arkansas statutes over charges of federal pre-emption, the question presented to this Court is whether in adding the 1963 compulsory arbitration Act to previous federal legislation, Congress intended to pre-empt this field and supersede state legislation like that of Arkansas, or, stated another way, whether application of the Arkansas law "would operate to frustrate the purpose of the 1963. federal legislation." Teamsters Union v. Morton, 377 U.S. 252, 258 . </s> Since the railroad unions first gained strength in this country the problem of manning trains has presented an issue of constant dispute between the railroads and the unions. Some States, such as Arkansas, believing perhaps that many railroads might not voluntarily assume the expense necessary to hire enough workers for their [382 U.S. 423, 430] trains to make the operations as safe as they could and should be, passed laws providing for the minimum size of the train crews. Where these laws were not in effect the question of the size of the crews was settled by collective bargaining, though not without great difficulty. It was this sensitive and touchy problem which brought on the explosive collective bargaining impasse that triggered the 1963 Act which the railroads now contend was intended to permanently supersede the 1907 and 1913 Arkansas statutes. Such a permanent supersession would, of course, amount to an outright repeal of the statutes by Congress. </s> The particular dispute which eventually led to the enactment of Public Law 88-108 began in 1959 when the Nation's major railroads notified the brotherhoods that they considered it to be the right of management to have the unrestricted discretion to decide how many employees should be used to man trains, and that they did not intend to submit that subject to collective bargaining in the future. The brotherhoods protested, serving counter-proposals on the railroads. As a result the representatives of each side met to try to negotiate a new collective bargaining agreement. On the question of the size of the crews the negotiators stuck and would not budge. The railroad negotiators insisted that changed conditions, particularly the substitution of diesel and electrically propelled engines for steam engines, had made firemen completely unnecessary employees. They continued to insist that the railroads should be left free to decide for themselves when and how many firemen should be used, if any at all. Throughout all negotiations, and up to now, the brotherhoods have insisted that a fireman is needed even on a diesel engine, particularly to aid the engineer as a lookout for safety purposes, and to help make needed repairs and adjustments while the train is moving, should the engine for any reason fail to function. Agreement on [382 U.S. 423, 431] this question proving impossible in the 1959 negotiations, President Eisenhower, acting at the request of both sides, appointed a Presidential Commission to try to adjust the dispute. After long investigation and consideration the Commission reported. Its report was unsatisfactory to the brotherhoods, not wholly satisfactory to the railroads, and did not result in any settlement. The dispute dragged on. Another report was made by the President's Advisory Committee on Labor-Management Policy but it also failed to bring about an agreement. </s> All efforts at agreement having failed, President Kennedy, on July 22, 1963, reported to Congress that on July 29 the railroads "can be expected to initiate work rules changes . . . . And the brotherhoods thereupon can be expected to strike." "This Nation," he said, "stands on the brink of a nationwide rail strike that would, in very short order, create widespread economic chaos and distress." Pointing out the disastrous consequences that might occur to the country should a strike take place, the President recommended legislation to provide "for an interim remedy while awaiting the results of further bargaining by the parties." He recommended that "for a 2-year period during which both the parties and the public can better inform themselves on this problem . . . interim work rules changes proposed by either party to which both parties cannot agree should be submitted for approval, disapproval or modification to the Interstate Commerce Commission in accordance with the procedures and provisions of section 5 of the Interstate Commerce Act . . . ." President Kennedy repeatedly emphasized to the Congress his hope that the dispute could eventually be settled by collective bargaining. He stated his belief that advances in railroad technology had made it necessary to reduce the railroad labor force, but he insisted that the public should help bear the burden of this reduction in order that it not fall entirely on those employees [382 U.S. 423, 432] who would lose their jobs. He warned the Congress that it was highly necessary "`for workers to enjoy reasonable protection against the harsh effects of too sudden change.'" In his message the President expressed no desire to have Congress pass a law that would finally and completely dispose of the problem of the number of men who should man the crew of a train, but instead warned that "It would be wholly inappropriate to make general and permanent changes in our labor relations statutes on this basis" and that any "`revolutionary changes even for the better carry a high price in disruption . . . (that) might exceed the value of the improvements.'" Thus the President's message did not in any way indicate a purpose on his part to disturb the existing pattern of full-crew laws by supersession of them, either temporarily or permanently. </s> Congress enacted the bill proposed by the President with one significant change. He had recommended that a binding determination of the issues not resolved by collective bargaining be made by the Interstate Commerce Commission. At least one brotherhood witness testified before the Senate Commerce Committee to an apprehension that the Interstate Commerce Commission if given the power requested would declare States' full-crew laws superseded by orders of the Commission. 7 Subsequent to this both the House and Senate Committees dropped a section of the proposed bill that would have vested power in the Commission to make binding settlements. 8 Instead of that section the Act passed by Congress provided for establishment of an arbitration board to consist of seven members, two appointed by the railroads, two by the unions and three to be appointed by the President [382 U.S. 423, 433] should the four members named by the railroads and unions fail to agree among themselves on an additional three. The arbitration board was given power to resolve the dispute over the firemen and full-crew questions. Their award was to be a complete and final disposition of these issues for a period not exceeding two years from the date the awards would take effect. Awards were made by such a board which the railroads now claim call for supersession of the state laws. We hold that neither the Act itself nor the awards made under it can have such an effect. </s> The text of the Act and the awards made under it contain no section specifically pre-empting the States' fullcrew laws nor is there any specific saving clause indicating lack of intent to pre-empt them. Appellees argue, however, that the terms of the Act and the awards are inconsistent with the operation of the state laws and thus the laws are no longer valid. But Congress wanted to do as little as possible in solving the dispute which was before it, and we note that this dispute was not over the size of crews in States which had full-crew laws, for there the size of crews was regulated by statute and not by collective bargaining agreements. The railroads made this very point before the Senate Commerce Committee when a spokesman for three railroads, in commenting on the few jobs that would be lost if the brotherhoods accepted the railroads' proposal, said. "25.9 percent of the firemen positions in freight and yard service must be maintained because of the provisions of so-called fullcrew laws of the States of [listing 13 States including Arkansas]." 9 It appears, therefore, that Congress did not need to pre-empt the state laws in order to eliminate this collective bargaining impasse, and further examination [382 U.S. 423, 434] of the legislative history of Public Law 88-108 confirms our view that Congress had no intention of superseding the state full-crew laws by passage of that Act. </s> The President's proposal was interpreted and explained to the House Committee on Interstate and Foreign Commerce by the Secretary of Labor. On the subject of state full-crew laws he told that Committee: </s> "I call attention to such statements as those of the Missouri Railroad Company v. Norwood, the Supreme Court case in 1930 in which the Court said, `In the absence of a clearly stated purpose so to do Congress will not be held to have intended to prevent the assertion of the police power of the States for the regulation of the number of men to be employed in such crews.' It would be the intention reflected here that the issuance of an interim ruling, subject to termination in a time period or at the agreement of the parties, would not have the effect of affecting any State full crew law." 10 </s> The Chairman of the House Committee on several occasions emphatically stated both in the hearings and on the House floor that the bill was not intended, either as proposed or as passed, to supersede state laws. On one occasion he said: </s> "This issue was raised in the course of the hearings before the committee. Questions were asked of the various people representing management and the labor industry and witnesses representing the labor brotherhoods, the employees' representatives, and the Secretary of Labor. It was made rather clear in the course of the hearings that it would in no way affect the provisions of State laws. The committee in executive session discussed the question [382 U.S. 423, 435] and concluded that it was not the intent of the committee in any way to affect State laws. On page 14 of the committee report we included, in order that this history might be made, this language: `The committee does not intend that any award made under this section may supersede or modify any State law relating to the manning of trains.'" 11 </s> The Chairman of the Committee then went on to tell the House, after referring to this Court's holding in Missouri Pac. R. Co. v. Norwood, </s> "Therefore, since this bill does not mention the subject of State laws, and since, as the committee report shows, we do not intend to affect these laws, I am confident they are not affected by the bill. </s> "I think that is about as clear as we can make it." </s> Many statements like those quoted above point to the fact that both the Senate and the House members did not intend by enacting Public Law 88-108 to supersede state laws. This sentiment was voiced by witnesses representing both labor and railroads as well as by public officials of the Nation. The railroads seek to offset these carefully considered expressions by reference to a single incident. On one of the occasions when Representative Harris, Chairman of the House Committee reporting the bill, had stated that the Act would not supersede the state law, Representative Smith of Virginia, Chairman of the Rules Committee of the House, interrupted Representative Harris to make the statement set out below. 12 </s> [382 U.S. 423, 436] This single statement by Congressman Smith was hardly enough to cast doubt in the minds of the members of the House as to the accuracy of the statement made by Congressman Harris, Chairman of the Committee which reported the bill. The substance of Congressman Smith's statement was: </s> "I think the provisions of the Constitution are such and the decisions of the courts are such that there is no way in which a State can overcome the power of the Federal Government under the interstate commerce clause." [382 U.S. 423, 437] </s> This statement was, of course, correct but it has little relevance as to whether the bill was intended to exercise the power of the Federal Government to supersede state laws. </s> In the face of the clear congressional history of this Act we could not hold that either the Act itself or the arbitration awards made under it supersede the Arkansas state laws. </s> II. </s> The railroads contend that the District Court would have been justified in holding the two Arkansas Acts unconstitutional on the second ground of their motion for summary judgment which is that the two Acts "constitute discriminatory legislation against interstate commerce in favor of intrastate commerce." Aside from the fact that such an argument was apparently rejected in the prior cases upholding the constitutionality of the Arkansas statutes we think it is wholly without merit. The argument is based on the fact that the 1907 state law exempts railroads with less than 50 miles of track and the 1913 law exempts railroads with less than 100 miles of track. None of the State's 17 intrastate railroads have more than 50 miles of track. It turns out that none of them are subject to either of the two state laws while 10 of the 11 interstate railroads are subject to the 1907 Act and eight of them are subject to the 1913 Act. It is impossible for us to say as a matter of law that this difference in treatment by the State, based on the differing mileage of railroads, is without any rational basis as the railroads contend. Certainly some regulations based on different mileage of railroads might be wholly rational, reasonable, and desirable. We cannot say on the record now before us that classification according to the length of mileage in these two statutes constitutes discrimination against interstate commerce in violation of the Commerce [382 U.S. 423, 438] Clause or the Equal Protection Clause. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 137 . </s> The judgment of the District Court is reversed and the cause is remanded to that court for consideration of the constitutional issues left undecided by its previous judgment. </s> It is so ordered. </s> MR. JUSTICE FORTAS took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Ark. Laws 1907, Act 116, Ark. Stat. Ann. 73-720 through 73-722 (1957). </s> [Footnote 2 Ark. Act 67 of 1913, Ark. Stat. Ann. 73-726 through 73-729 (1957). </s> [Footnote 3 77 Stat. 132, 45 U.S.C. following 157 (1964 ed.). </s> [Footnote 4 Chicago, R. I. & P. R. Co. v. Arkansas, 219 U.S. 453 . </s> [Footnote 5 St. Louis, I. M. & S. R. Co. v. Arkansas, 240 U.S. 518 . </s> [Footnote 6 Missouri Pac. R. Co. v. Norwood, 283 U.S. 249, 290 U.S. 600. See also latter case below, 13 F. Supp. 24. </s> [Footnote 7 Hearings before Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., 1st Sess., 629. </s> [Footnote 8 S. Rep. No. 459, 88th Cong., 1st Sess., 9. </s> [Footnote 9 Hearings before the Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., 1st Sess., 707. </s> [Footnote 10 Hearings before the House Committee on Interstate and Foreign Commerce on H. J. Res. No. 565, 88th Cong., 1st Sess., 78. </s> [Footnote 11 109 Cong. Rec. 16122 (1963). See also the Committee Report referred to by Chairman Harris, H. R. Rep. No. 713, 88th Cong., 1st Sess., 14. </s> [Footnote 12 "Mr. SMITH of Virginia. Mr. Speaker, the colloquy between the gentleman from California [Mr. SISK], and the chairman of the Committee on Interstate and Foreign Commerce, the gentleman from Arkansas [Mr. HARRIS], raises a question that has not previously been discussed on the floor of the House. It was discussed in the [382 U.S. 423, 436] committee yesterday before the Committee on Rules. I do not like to remain silent in view of the statement that a State law can overcome the constitutional provision which gives exclusive jurisdiction to the Federal Government in matters of interstate commerce. I do not know what precedents may have been found with reference to this question, but of course, in the matter of purely intrastate commerce under our Constitution the State, of course, would have authority, but when it comes to dealing with interstate commerce I think the provisions of the Constitution are such and the decisions of the courts are such that there is no way in which a State can overcome the power of the Federal Government under the interstate commerce clause. </s> "I simply wanted to make my own position clear with reference to that question, for whatever it may be worth. </s> "Mr. EDMONDSON. Mr. Speaker, will the gentleman yield? </s> "Mr. SMITH of Virginia. I yield to the gentleman from Oklahoma. </s> "Mr. EDMONDSON. I thank the distinguished chairman of the Committee on Rules for yielding to me at this point. Would this not mean in effect that about the only kind of train operation in which State laws would prevail would be in the switching of cars involving switch engine operations? </s> "Mr. SMITH of Virginia. Of course, it is just a question of what is or what constitutes interstate commerce. Now, as you know, the decisions of the courts and the actions of the Congress have gone a long way in putting almost everything under interstate commerce." 109 Cong. Rec. 16122 (1963). </s> MR. JUSTICE DOUGLAS, dissenting. </s> We all agree that Congress has ample power to regulate the number of employees used to man railroad trains operating in interstate commerce. Unlike the majority, however, I believe that Congress has exercised that power, and respectfully dissent from the Court's conclusion to the contrary. </s> The bargaining impasse which prompted the passage of Public Law 88-108 (77 Stat. 132) represented, in a sense, only the exposed top of a large iceberg. Lurking beneath the surface of the controversy were the twin problems of automation and technological unemployment. Congress was well aware of the developing conflict between innovation and job security. When President Kennedy sought a legislative solution to the pending crisis in the railroad industry, he reminded Congress that: </s> ". . . this dispute over railroad work rules is part of a much broader national problem. Unemployment, whether created by so-called automation, by a shift of industry to new areas, or by an overall shortage of market demand, is a major social burden. </s> . . . . . </s> "This problem is particularly but not exclusively acute in the railroad industry. Forty percent fewer [382 U.S. 423, 439] employees than were employed at the beginning of this decade now handle substantially the same volume of rail traffic. The rapid replacement of steam locomotives by diesel engines for 97 percent of all freight tonnage has confronted many firemen, who have spent much of their career in this work, with the unpleasant prospect of human obsolescence. . . . The Presidential Commission was established in part, it said, because of the need to close the gap between technology and work." (See Hearings before Senate Committee on Commerce on S. J. Res. 102, 88th Cong., 1st Sess., 11-12.) </s> The Presidential Railroad Commission to which President Kennedy referred was established by President Eisenhower's order in 1960, 1 and was charged with investigating the dispute which arose out of the railroads' proposed elimination of firemen on diesel engines, and the reduction of the number of other crew members, in freight and yard service. After an extensive study, the Commission issued its report containing detailed findings on all aspects of the dispute. The Commission's recommendations included the elimination of firemen on diesels in freight service and the reduction of the number of brakemen and switchmen. It recommended financial benefits for those separated from service. </s> This Presidential Railroad Commission was well aware that, however desirable might be a nationwide solution to the problem, the continued existence of state "full crew" laws made this impossible: </s> "[M]ost of the legislation of this kind was enacted prior to 1920. These laws apparently fail to envision modern railroad operations. We feel that our recommendations with respect to this issue should have nationwide application. We recognize that [382 U.S. 423, 440] there will be difficulty in applying the rule recommended by us in States where `full crew' laws have been enacted. How the restriction of those laws may be lifted, however, is a matter which goes beyond our charge." 2 </s> Then came Public Law 88-108, 3 of which empowers the Board to "resolve the matters on which the parties were not in agreement" and to make a binding award which "shall constitute a complete and final disposition of the . . . issues." Section 7 (a) lays down standards for the Board: </s> (1) "[T]he effect of the proposed award upon adequate and safe transportation service"; </s> (2) "[T]he effect of the proposed award upon . . . the interests of the carrier and employees affected"; and </s> (3) "[D]ue consideration to the narrowing of the areas of disagreement which has been accomplished in bargaining and mediation." </s> Today the Court concludes that Congress sought only to shear off the visible portion of the iceberg, leaving the continued existence of state "full crew" laws as a bar to the resolution of these matters. </s> That the state statutes in question conflict with the federal arbitration awards is plain. Congress directed the National Arbitration Board to resolve the dispute as to the necessity of firemen on diesel freights and as to the minimum size of train and switching crews. The Board has declared that, in general, firemen are not to be required. And through local boards, the number of brakemen, switchmen, and helpers to be used in various operations is fixed. 3 These state laws, however, compel [382 U.S. 423, 441] the use of firemen in virtually all interstate operations and fix the size of train crews at levels usually exceeding those fixed by the local awards. 4 States lacking such laws are, in light of the Court's decision, free to enact them and thereby, in effect, imperil Public Law 88-108 and the arbitration awards made under it. This Court has held that a state statute must fall in the face of an inconsistent provision in a collective bargaining agreement negotiated pursuant to the command of federal law, Teamsters Union v. Oliver, 358 U.S. 283 , even though Congress did not prescribe the particular terms of the agreement. And see California v. Taylor, 353 U.S. 553 . We have here something more than collective bargaining agreements. These arbitration awards are binding directives, resolving a labor-management dispute, issued under the direction and authority of Congress. </s> The problems submitted to the Arbitration Board concerned primarily two central issues: (1) continued use of firemen on diesel-electric or electric locomotives which do not use steam power, and on which the work of firing [382 U.S. 423, 442] boilers need not be performed; (2) the makeup or "consist" of train service crews in road and yard. These are matters recognized by the Board as governed in some States "by statute or administrative decision." Indeed, a resolution of them in many situations might involve overriding or disregarding conflicting local regulations. Any realistic view of the scope and nature of the impasse the parties had reached would necessarily endow the Board with power to resolve conflicts between what it deemed to be the desirable national policy on the one hand and conflicting state laws on the other. </s> The issues were far-reaching; they included questions in the realm of economics, of railroad technology, and of sociology. This was a controversy that years of collective bargaining, study, informed analysis, persuasion, and debate had not been able to resolve. The Board's seven members 5 held 29 days of hearings, received the testimony of more than 40 witnesses recorded in nearly 5,000 pages of transcript, examined more than 200 documentary exhibits, and made inspection trips to four railroad yards in the Chicago area. Its award 6 was concurred in by the two carrier members and dissented from by the labor members. 7 The opinion of the neutral members of the Board details the conclusions the panel reached. It states, as to the question of firemen, that: </s> "although we think it clear that firemen are presently performing useful services, we agree with the [382 U.S. 423, 443] [Presidential Railroad] Commission `that firemen-helpers are not so essential for the safe and efficient operation of road freight and yard diesels that there should continue to be either a national rule or local rules requiring their assignment on all such diesels.'" 8 </s> The Board found, in respect to the other members of the train crew, that "the consist of crews necessary to assure safety and to prevent undue workloads must be determined primarily by local conditions. A national prescription of crew size would be wholly unrealistic." The Board established procedures for local arbitration of these issues. And, the Board added, </s> "It is clear from the evidence before us that the myriad of local arrangements has led to numerous inconsistencies in the manning of crews. It is equally clear that some of the existing rules, originating as they did more than a half-century ago, are anachronistic and do not reflect the present state of railroad technology and operating conditions." [382 U.S. 423, 444] </s> The Board's concern with safety is apparent from a reading of the neutral members' opinion. As that opinion puts it: </s> "It may be fairly stated that concern with safety has pervaded this entire proceeding. It was apparent in the presentations and arguments by all the organizations and by the carriers, and was further emphasized by the inquires which members of the Board directed to witnesses and counsel." </s> We are in no position, of course, to pass judgment on the work of the Arbitration Board, nor is it our function to do so. But it is apparent that this panel had the power and the tools to resolve the controversy. Its award constitutes a national solution to the question of firemen and establishes the procedures, already utilized in respect to these railroads operating in Arkansas, for resolution of the crew consist issue. </s> I conclude that the effect of Public Law 88-108 and the awards made pursuant to it was to supersede state "full crew" legislation. Of course, were the intent of Congress shown to be otherwise, that would be dispositive. Unlike the majority, I do not think that the bits and pieces of legislative debate cited in the Court's opinion can be regarded as a controlling statement of legislative intent. If anything, the legislative history of Public Law 88-108 suggests that Congress refused to accept the suggestion that, if it wished to avoid the supersession of state "full crew" laws, it should expressly say so. </s> The majority points to statements made by Congressman Harris, Chairman of the House Committee on Interstate and Foreign Commerce, to the effect that the bill would have no effect on state laws. But when he stated his conclusion on the floor of the House, he was immediately challenged by Congressman Smith, Chairman of the Rules Committee. Under the circumstances, it [382 U.S. 423, 445] seems inappropriate to regard Congressman Harris' views as wholly authoritative. The testimony of Secretary Wirtz, also referred to by the Court, was followed by a legal memorandum submitted by the Secretary. This memorandum suggests that the Interstate Commerce Commission would, under the proposed legislation, have the power to supersede state legislation, and that to avoid this the Commission might expressly provide to the contrary in its orders. 9 </s> The absence of an express disclaimer of intent to supersede state laws was called to the attention of Congress. Testifying before the House Committee, Secretary Wirtz did so. 10 The General Counsel of the Interstate Commerce Commission told the Committee that if "the Congress wants to be doubly certain, for example, that no such legal consequence follows it could be done" by expressly stating that no supersession is intended. 11 To this the Chairman responded: </s> "I appreciate your very frank response, because I think it has sort of been left up in the air as to what [382 U.S. 423, 446] the courts might do. There has been expression as to what is intended and what some might have thought but I think we also have to provide clarity wherever it is necessary in order that the Commission may have guidance in its effort to carry out the responsibility should it so be directed." 12 </s> The Commission's General Counsel testified to the same effect before the Senate Commerce Committee: </s> "If it were desired to make that absolutely certain, if that is the desire of Congress, it can be done by just a phrase . . . ." 13 </s> Despite this advice, Congress did not include a "saving" clause. 14 </s> [382 U.S. 423, 447] </s> Congress was faced, at the time it enacted Public Law 88-108, with more than the threat of a crippling strike. It had before it the recommendations of the Presidential Railroad Commission. It had been told by the President of the seriousness of the problem of technological unemployment arising from automation. Congress responded by establishing a procedure for resolution of the railroad industry's pressing economic problem with ample consideration of the "safety" issue. It is inconceivable that Congress intended to solve only part of the problem when it directed the Arbitration Board to make a binding award which "shall constitute a complete and final disposition of the . . . issues." </s> In sum, I agree with District Court that, "There is nothing in the Act itself or in the history that indicates that the Congress intended to resolve this problem of national magnitude by legislation that would be effective in only some 30 states that do not regulate crew consists by law or administrative regulation." 239 F. Supp. 1, 23. </s> Although automation was a prime concern of the President and the Congress, the Court holds that the lawmakers cloaked their concern in such weasel-like words as not to reach the roots of the problem. With all respect, I dissent. </s> [Footnote 1 Executive Order No. 10891, Nov. 1, 1960. </s> [Footnote 2 Report of the Presidential Railroad Commission (1962), at p. 64. </s> [Footnote 3 The national award provided for the elimination of 90% of the firemen's jobs in each local seniority district, except that firemen would in all cases be required on yard locomotives lacking a "deadman" control. In addition, jobs had to be made available to firemen [382 U.S. 423, 441] retained in service pursuant to the employment protective provisions of the award which, in general, provided that any fireman with 10 years' seniority had to be retained either as a fireman or an engineer. Firemen with between two and 10 years' seniority had to be retained in engine service or offered a comparable position. </s> As for brakemen and switchmen, the award established procedures for binding local arbitration whereby the number of other crew members might be fixed on a local basis, subject to certain employment protective conditions established by the national Board. The applicable local awards for Arkansas railroad operations provide for two brakemen on main-line operations and one brakeman on branch-line operations. In switching operations, the local awards provide, with certain exceptions, for one helper. </s> [Footnote 4 Thus Arkansas law requires a fireman on every train, with certain exceptions, while the arbitration award permits abolition of 90% of the firemen's positions. Arkansas requires three brakemen while the arbitration award requires no more than two. Similar conflicts appear in respect to the yard operations. </s> [Footnote 5 The Chairman of the Board was Ralph T. Seward. The other two neutral members were Benjamin Aaron and James J. Healy. Representing the carriers were Guy W. Knight and J. E. Wolfe. Representing the labor organizations were H. E. Gilbert and R. H. McDonald. </s> [Footnote 6 See note 3, supra. </s> [Footnote 7 The carrier members, while "disappointed with certain of [the] provisions" of the award, noted the "care and diligence" which the Board had displayed in reaching its decision. The labor members contended that the Board had not been true to the congressional command and that its conclusions were erroneous. </s> [Footnote 8 The opinion states that the "lookout function presently assigned to the fireman is also performed by the head brakeman in road freight service and by all members of the train crew in yard service. In the great majority of cases the lack of a fireman to perform the related functions of lookout and signal passing will not endanger safety or impair efficiency because these functions can be, as they are now, performed by other crew members." </s> The mechanical duties performed by firemen, the Board found, could in large part "be performed by the engineer while the locomotive is in service and by shop maintenance personnel at other times." </s> Finally, the Board found that relief of the engineer by the fireman is of critical importance only in the event of sudden incapacitation. "In road freight service the usual presence of the head brakeman in the cab obviates the need for a fireman in such an emergency." </s> [Footnote 9 See Hearings before House Committee on Interstate and Foreign Commerce on H. J. Res. No. 565, 88th Cong., 1st Sess., 112-113. The reference to the Interstate Commerce Commission was made, of course, because at that stage Congress was considering the legislation in the form proposed by the President, which contemplated resolution of the dispute by the Commission. </s> The report of the Committee reflects the view of its Chairman and states that state full-crew laws would not be superseded. H. R. Rep. No. 713, 88th Cong., 1st Sess., 14. It bears repeating that this position was challenged by Congressman Smith on the floor of the House. And it is also significant that the report of the Senate Commerce Committee (S. Rep. No. 459, 88th Cong., 1st Sess.) makes no mention of the pre-emption question, despite references to it in the Committee's hearings. See note 13 and accompanying text and note 14, infra. </s> [Footnote 10 See Hearings before House Committee on Interstate and Foreign Commerce on H. J. Res. 565, 88th Cong., 1st Sess., 111. </s> [Footnote 11 Id., at p. 614. </s> [Footnote 12 Ibid. </s> [Footnote 13 Hearings before Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., 1st Sess., 401. </s> [Footnote 14 The possibility that the bill would result in the supersession of state laws was noted at other points in the Senate Commerce Committee hearings. A representative of the Brotherhood of Locomotive Engineers testified: </s> "Mr. DAVIDSON. Mr. Chairman, I was just handed a note that I would like to read into the record, if I may. </s> "Senator PASTORE. All right. </s> "Mr. DAVIDSON. General Counsel for the ICC, at the House hearing today, stated if this bill passes, the Commission would have jurisdiction over States' minimum crew bills. </s> "Senator PASTORE. I don't want to pass any judgment on that. You have read it into the record. I will check that." Id., at 478. </s> The General Counsel of the Railway Labor Executives' Association testified: "I certainly visualize that as a bare minimum the carriers will contend that the effect [of] orders of the Commission authorizing decreases in crew consist - either of enginecrew or traincrew - would operate to overrule full crew laws in those States that have them. Perhaps that explains the alacrity with which the carriers embraced the President's recommendation and endorsed it." Id., at 629. </s> As stated by the District Court: "A complete review of the legislative history will reveal that some members of Congress thought [382 U.S. 423, 447] that the legislation would pre-empt state crew consist laws, and others thought it would not. It is perfectly clear that the Committees in both Houses had it brought effectively to their attention that the legislation might have a pre-empting effect, and if such pre-emption was not the desire and intention of the Congress, it should so expressly state in the bill. There was no such expression although the bill was amended in many other respects after the hearings before both Committees had been concluded." 239 F. Supp., pp. 22-23. </s> [382 U.S. 423, 448]

United States Supreme Court HARTFORD FIRE INS. CO. v. CALIFORNIA(1993) No. 91-1111 Argued: February 23, 1993Decided: June 28, 1993 </s> [Footnote * Together with No. 91-1128, Merrett Underwriting Agency Management Ltd. et al. v. California et al., also on certiorari to the same court. </s> Nineteen States and many private plaintiffs filed complaints alleging that the defendants - four domestic primary insurers, domestic companies who sell reinsurance to insurers, two domestic trade associations, a domestic reinsurance broker, and reinsurers based in London - violated the Sherman Act by engaging in various conspiracies aimed at forcing certain other primary insurers to change the terms of their standard domestic commercial general liability insurance policies to conform with the policies the defendant insurers wanted to sell. After the actions were consolidated for litigation, the District Court granted the defendants' motions to dismiss. The Court of Appeals reversed, rejecting the District Court's conclusion that the defendants were entitled to antitrust immunity under 2(b) of the McCarran-Ferguson Act, which exempts from federal regulation "the business of insurance," except "to the extent that such business is not regulated by State Law." Although it held the conduct involved to be "the business of insurance," the Court of Appeals ruled that the foreign reinsurers did not fall within 2(b)'s protection because their activities could not be "regulated by State Law," and that the domestic insurers had forfeited their 2(b) exemption when they conspired with the nonexempt foreign reinsurers. Furthermore, held the court, most of the conduct in question fell within 3(b), which provides that nothing in the McCarran-Ferguson Act "shall render the . . . Sherman Act inapplicable to any . . . act of boycott. . . ." Finally, the court rejected the District Court's conclusion that the principle of international comity barred it from exercising Sherman Act [509 U.S. 764, 2] jurisdiction over the three claims brought solely against the London reinsurers. </s> Held: </s> The judgment is affirmed in part and reversed in part, and the cases are remanded. </s> 938 F.2d 919 (CA9 1991), affirmed in part, reversed in part, and remanded. </s> JUSTICE SOUTER delivered the opinion of the Court with respect to Parts I, II-A, III, and IV, concluding that: </s> 1. The domestic defendants did not lose their 2(b) immunity by conspiring with the foreign defendants. The Court of Appeals' conclusion to the contrary was based in part on the statement, in Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231 , that, "[i]n analogous contexts, the Court has held that an exempt entity forfeits antitrust exemption by acting in concert with nonexempt parties." Even assuming that foreign reinsurers were "not regulated by State Law," the Court of Appeals' reasoning fails because the analogy drawn by the Royal Drug Court was a loose one. Following that language, the Royal Drug Court cited two cases dealing with the Capper-Volstead Act, which immunizes certain "persons" from Sherman Act liability. Ibid. Because, in contrast, the McCarran-Ferguson Act immunizes activities, rather than entities, an entity-based analysis of 2(b) immunity is inappropriate. See id., at 232-233. Moreover, the agreements at issue in Royal Drug Co. were made with "parties wholly outside the insurance industry," id., at 231, whereas the alleged agreements here are with foreign reinsurers and admittedly concern "the business of insurance." Pp. 13-17. </s> 2. Even assuming that a court may decline to exercise Sherman Act jurisdiction over foreign conduct in an appropriate case, international comity would not counsel against exercising jurisdiction in the circumstances alleged here. The only substantial question in this litigation is whether "there is, in fact, a true conflict between domestic and foreign law." Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 555 (BLACKMUN, J., concurring in part and dissenting in part). That question must be answered in the negative, since the London reinsurers do not argue that British law requires them to act in some fashion prohibited by United States law or claim that their compliance with the laws of both countries is otherwise impossible. Pp. 27-32. </s> JUSTICE SCALIA delivered the opinion of the Court with respect to Part I, concluding that a "boycott" for purposes of 3(b) of the Act occurs where, in order to coerce a target into certain terms on one transaction, parties refuse to engage in other, unrelated transactions with the target. It is not a "boycott," but rather a concerted agreement [509 U.S. 764, 3] to terms (a "cartelization") where parties refuse to engage in a particular transaction until the terms of that transaction are agreeable. Under the foregoing test, the allegations of a "boycott" in this litigation, construed most favorably to the respondents, are sufficient to sustain most of the relevant counts of complaint against a motion to dismiss. Pp. 2-12. </s> SOUTER, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II-A, the opinion of the Court with respect to Parts III and IV, in which REHNQUIST, C.J., and WHITE, BLACKMUN, and STEVENS, JJ., joined, and an opinion concurring in the judgment with respect to Part II-B, in which WHITE, BLACKMUN, and STEVENS, JJ., joined. SCALIA, J., delivered the opinion of the Court with respect to Part I, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined, and a dissenting opinion with respect to Part II, in which O'CONNOR, KENNEDY, and THOMAS, JJ., joined, post, p. ___. </s> Stephen M. Shapiro argued the cause for petitioners in No. 91-1111. With him on the briefs were Kenneth S. Geller, Mark I. Levy, Roy T. Englert, Jr., Timothy S. Bishop, Ronald A. Jacks, Richard E. Sherwood, William A. Montgomery, William M. Hannay, John G. Harkins, Jr., Eleanor Morris Illoway, Bartlett H. McGuire, Douglas I. Brandon, James S. Greenan, Raoul D. Kennedy, Alan H. Silberman, Stuart Altschuler, Peter O. Glaessner, David L. Foster, Gregory L. Harris, Frank Rothman, Timothy E. Carr, Kent E. Keller, Lewis A. Kaplan, Allan Blumstein, Ronald C. Redcay, Michael M. Uhlmann, Robert B. Green, Stephen M. Axinn, Michael L. Weiner, James M. Burns, Eugene F. Bannigan, Christine C. Burgess, Robert M. Mitchell, Philip H. Curtis, Zoe Baird, Jane kelly, Joseph P. Giasi, Jr., Joseph A. Gervasi, Debra J. Anderson, Michael S. Wilder, Jeffrey L. Morris, Edmond F. Rondepierre, and John J. Hayden. Molly S. Boast argued the cause for petitioners in No. 91-1128. With her on the briefs for petitioners Merrett Underwriting Agency Management Ltd. et al. were Lawrence W. Pollack, Andreas F. Lowenfeld, Barry L. Bunshoft, Eric J. Sinrod, David W. Slaby, Michael L. McCluggage, James T. Nyeste, Michael R. Blankshain, Jerome N. Lerch, Paul R. Haerle, Martin Frederic Evans, Donald Francis Donovan, and Colby A. Smith, Barry R. Ostrager, Eleanor M. Fox, Mary Kay Vyskocil, and Kathryn A. Clokey filed briefs for petitioner Sturge Reinsurance Syndicate Management Ltd. </s> Laurel A. Price, Deputy Attorney General of New Jersey, argued the cause for respondents in both cases. With her on the brief for state respondents in No. 91-1111 and on the brief for respondents in No. 91-1128 were J. Joseph Curran, Jr., Attorney General of Maryland, Ellen S. Cooper, Assistant Attorney General, James H. Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Jim Forbes, Assistant Attorney General, Grant Woods, Attorney General of Arizona, Suzanne M. Dallimore, Assistant Attorney General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Sanford N. Gruskin, Assistant Attorney General, Thomas Greene, Supervising Deputy Attorney General, Kathleen E. Foote, Deputy Attorney General, Gale A. Norton, Attorney General of Colorado, James R. Lewis, Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, Robert M. Langer and William M. Rubenstein, Assistant Attorneys General, Richard T. Ieyoub, Attorney General of Louisiana, Jenifer Schaye, Assistant Attorney General, Scott Harshbarger, Attorney General of Massachusetts, Thomas M. Alpert and George K. Weber, Assistant Attorneys General, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Thomas F. Pursell, Deputy Assistant Attorney General, Lisa Tiegel, Special Assistant Attorney General, Marc Racicot, Attorney General of Montana, Paul Johnson, Assistant Attorney General, Robert J. Del Tufo, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, George Sampson, Richard L. Schwartz and Gary J. Malone, Assistant Attorneys General, Lee Fisher, Attorney General of Ohio, Doreen C. Johnson and Marc B. Bandman, Assistant Attorneys General, Erneste D. Preate, Jr., Attorney General of Pennsylvania, Thomas L. Welch and David R. Weyl, Deputy Attorneys General, Kenneth O. Eikenberry, Attorney General of Washington, John R. Ellis, Deputy Attorney General, Tina E. Kondo, Assistant Attorney General, Mario J. Palumbo, Attorney General of West Virginia, Donald L. Darling, Deputy Attorney General, Donna S. Quesenberry, Senior Assistant Attorney General, James E. Doyle, Attorney General of Wisconsin, and Kevin J. O'Connor, Assistant Attorney General, H. Laddie Montague, Jr., Howard Langer, Nicholas E. Chimicles, Eugene Gressman, Jerry S. Cohen, and Robert Miller filed a brief for private respondents in both cases. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the Government of Canada by Douglas E. Rosenthal; for the Government of the United Kingdom of Great Britain et al. by Mark R. Joelson; for the American Insurance Association et al. by John E. Nolan, Jr., Craig A. Berrington, and Patrick J. McNally; for the National Association of Casualty & Surety Agents et al. by Anothony C. Epstein and Ann M. Kappler; for the National Conference of Insurance Legislators by Stephen W. Schwab, Seymour Simon, and Reuben A. Bernick; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Thomas P. Perkins, Jr., Mark Tobey, Katherine D. Farroba, and Floyd Russell Ham, Assistant Attorneys General, Charles M. Oberly III, Attorney General of Delaware, John J. Polk, Deputy Attorney General, Robert A. Butterworth, Attorney General of Florida, Scott E. Clodfelter, Assistant Attorney General, Robert A. Marks, attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Brett T. DeLange, Deputy Attorney General, Bonnie J. Campbell, Attorney General of Iowa, John J. Perkins, Deputy Attorney General, Chris German, Attorney Mike Moore, Attorney General of Mississippi, Jim Steele, Special Assistant Attorney General, William L. Webster, Attorney General of Missouri, Henry T. Herschel, Tom Udall, Attorney General of New Mexico, Frankie Sue Del Pap, Attorney General of Nevada, Lacy H. Thornburg, Attorney General of North Carolina, James C. Gulick, Special Deputy Attorney General, K. D. Sturgis, Assistant Attorney General, NICHOLAS J. Spaeth, Attorney General of North Dakota, David W. Huey, Assistant Attorney General, James E. O'Neil, Attorney General, To. Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Jeffrey P. Hallem, Assistant Attorney General, R. Paul Van Dam, Attorney General of Utah, Patrice Arent and Cy H. Castle, Assistant Attorneys General, Jeffrey L. Amestoy, Attorney General of Vermont, Julie Brill, Assistant Attorney General, and Mary Sue Terry, Attorney General of Virginia; for the National League of Cities et al. Lawrence Kill and Anthony P. Coles; and for the Service Station Dealers of America by Dimitri G. Daskalopoulos. Richard I. Fine filed a brief for the Service Industry Council et al. as amicus curiae. [509 U.S. 764, 1] </s> JUSTICE SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, III, and IV, and an opinion concurring in the judgment with respect to Part II-B. * </s> The Sherman Act makes every contract, combination, or conspiracy in unreasonable restraint of interstate or foreign commerce illegal. 26 Stat. 209, as amended, 15 U.S.C. 1. These consolidated cases present questions about the application of that Act to the insurance industry, both here and abroad. The plaintiffs (respondents here) allege that both domestic and foreign defendants (petitioners here) violated the Sherman Act by engaging in various conspiracies to [509 U.S. 764, 2] affect the American insurance market. A group of domestic defendants argues that the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S.C. 1011 et seq., precludes application of the Sherman Act to the conduct alleged; a group of foreign defendants argues that the principle of international comity requires the District Court to refrain from exercising jurisdiction over certain claims against it. We hold that most of the domestic defendants' alleged conduct is not immunized from antitrust liability by the McCarran-Ferguson Act, and that, even assuming it applies, the principle of international comity does not preclude District Court jurisdiction over the foreign conduct alleged. </s> I </s> The two petitions before us stem from consolidated litigation comprising the complaints of 19 States and many private plaintiffs alleging that the defendants, members of the insurance industry, conspired in violation of 1 of the Sherman Act to restrict the terms of coverage of commercial general liability (CGL) insurance 1 available in the United States. Because the cases come to us on motions to dismiss, we take the allegations of the complaints as true. 2 </s> [509 U.S. 764, 3] </s> A </s> According to the complaints, the object of the conspiracies was to force certain primary insurers (insurers who sell insurance directly to consumers) to change the terms of their standard CGL insurance policies to conform with the policies the defendant insurers wanted to sell. The defendants wanted four changes. 3 </s> First, CGL insurance has traditionally been sold in the United States on an "occurrence" basis, through a policy obligating the insurer "to pay or defend claims, whenever made, resulting from an accident or "injurious exposure to conditions" that occurred during the [specific time] period the policy was in effect." App. 22 (Cal. Complaint § 52). In place of this traditional "occurrence" trigger of coverage, the defendants wanted a "claims-made" trigger, obligating the insurer to pay or defend only those claims made during the policy period. Such a policy has the distinct advantage for the insurer that, when the policy period ends without a claim's having been made, the insurer can be certain that the policy will not expose it to any further liability. Second, the defendants wanted the "claims-made" policy to have a "retroactive date" provision, which would further restrict coverage to claims based on incidents that occurred after a certain date. Such a provision eliminates the risk that an insurer, by issuing a claims-made policy, would assume liability arising from incidents that occurred before the policy's [509 U.S. 764, 4] effective date, but remained undiscovered or caused no immediate harm. Third, CGL insurance has traditionally covered "sudden and accidental" pollution; the defendants wanted to eliminate that coverage. Finally, CGL insurance has traditionally provided that the insurer would bear the legal costs of defending covered claims against the insured without regard to the policy's stated limits of coverage; the defendants wanted legal defense costs to be counted against the stated limits (providing a "legal defense cost cap"). </s> To understand how the defendants are alleged to have pressured the targeted primary insurers to make these changes, one must be aware of two important features of the insurance industry. First, most primary insurers rely on certain outside support services for the type of insurance coverage they wish to sell. Defendant Insurance Services Office, Inc. (ISO), an association of approximately 1,400 domestic property and casualty insurers (including the primary insurer defendants, Hartford Fire Insurance Company, Allstate Insurance Company, CIGNA Corporation, and Aetna Casualty and Surety Company), is the almost exclusive source of support services in this country for CGL insurance. See id., at 19 (Cal. Complaint § 38). ISO develops standard policy forms and files or lodges them with each State's insurance regulators; most CGL insurance written in the United States is written on these forms. Ibid. (Cal. Complaint § 39); id., at 74 (Conn. Complaint § 50). All of the "traditional" features of CGL insurance relevant to this litigation were embodied in the ISO standard CGL insurance form that had been in use since 1973 (1973 ISO CGL form). Id., at 22 (Cal. Complaint §§ 51-54); id., at 75 (Conn. Complaint §§ 56-58). For each of its standard policy forms, ISO also supplies actuarial and rating information: it collects, aggregates, interprets, and distributes data on the premiums charged, claims filed and paid, and defense costs expended with respect to each form, id., at 19 (Cal. Complaint § 39); id., at 74 (Conn. Complaint §§ 51-52), and on the basis of this [509 U.S. 764, 5] data it predicts future loss trends and calculates advisory premium rates, id., at 19 (Cal. Complaint § 39); id., at 74 (Conn.Complaint § 53). Most ISO members cannot afford to continue to use a form if ISO withdraws these support services. See id., at 32-33 (Cal.Complaint §§ 97, 99). </s> Second, primary insurers themselves usually purchase insurance to cover a portion of the risk they assume from the consumer. This so-called "reinsurance" may serve at least two purposes, protecting the primary insurer from catastrophic loss and allowing the primary insurer to sell more insurance than its own financial capacity might otherwise permit. Id., at 17 (Cal. Complaint § 29). Thus, "[t]he availability of reinsurance affects the ability and willingness of primary insurers to provide insurance to their customers." Id., at 18 (Cal. Complaint § 34); id., at 63 (Conn. Complaint § 4(p)). Insurers who sell reinsurance themselves often purchase insurance to cover part of the risk they assume from the primary insurer; such "retrocessional reinsurance" does for reinsurers what reinsurance does for primary insurers. See ibid. (Conn. Complaint § 4(r)). Many of the defendants here are reinsurers or reinsurance brokers, or play some other specialized role in the reinsurance business; defendant Reinsurance Association of America (RAA) is a trade association of domestic reinsurers. </s> B </s> The prehistory of events claimed to give rise to liability starts in 1977, when ISO began the process of revising its 1973 CGL form. Id., at 22 (Cal. Complaint § 55). For the first time, it proposed two CGL forms (1984 ISO CGL forms), one the traditional "occurrence" type, the other "with a new `claims-made' trigger." Id., at 22-23 (Cal. Complaint § 56). The "claims-made" form did not have a retroactive date provision, however, and both 1984 forms covered "`sudden and accidental' pollution" damage and provided for unlimited coverage of legal defense costs by the [509 U.S. 764, 6] insurer. Id., at 23 (Cal. Complaint §§ 59-60). Within the ISO, defendant Hartford Fire Insurance Company objected to the proposed 1984 forms; it desired elimination of the "occurrence" form, a retroactive date provision on the "claims-made" form, elimination of sudden and accidental pollution coverage, and a legal defense cost cap. Defendant Allstate Insurance Company also expressed its desire for a retroactive date provision on the "claims-made" form. Id., at 24 (Cal. Complaint § 61). Majorities in the relevant ISO committees, however, supported the proposed 1984 CGL forms and rejected the changes proposed by Hartford and Allstate. In December, 1983, the ISO Board of Directors approved the proposed 1984 forms, and ISO filed or lodged the forms with state regulators in March, 1984. Ibid. (Cal. Complaint § 62). </s> Dissatisfied with this state of affairs, the defendants began to take other steps to force a change in the terms of coverage of CGL insurance generally available, steps that, the plaintiffs allege, implemented a series of conspiracies in violation of 1 of the Sherman Act. The plaintiffs recount these steps as a number of separate episodes corresponding to different claims for relief in their complaints; 4 because it will become important to distinguish among these counts and the acts and defendants associated with them, we will note these correspondences. </s> The first four Claims for Relief in the California Complaint, id., at 36-43 (in §§ 111-130), and the Second Claim for Relief of the Connecticut Complaint, id., at 90-92 (Par; 120-124), charge the four domestic primary insurer defendants and varying groups of domestic and foreign reinsurers, brokers, and associations with conspiracies to manipulate the ISO CGL forms. In [509 U.S. 764, 7] March, 1984, primary insurer Hartford persuaded General Reinsurance Corporation (General Re), the largest American reinsurer, to take steps either to procure desired changes in the ISO CGL forms, or "failing that, [to] `derail' the entire ISO CGL forms program." Id., at 24 (Cal. Complaint § 64). General Re took up the matter with its trade association, RAA, which created a special committee that met and agreed to "boycott" the 1984 ISO CGL forms unless a retroactive date provision was added to the claims-made form, and a pollution exclusion and defense cost cap were added to both forms. Id., at 24-25 (Cal. Complaint §§ 65-66). RAA then sent a letter to ISO "announc[ing] that its members would not provide reinsurance for coverages written on the 1984 CGL forms," id., at 25 (Cal. Complaint § 67), and Hartford and General Re enlisted a domestic reinsurance broker to give a speech to the ISO Board of Directors in which he stated that no reinsurers would "break ranks" to reinsure the 1984 ISO CGL forms. Ibid. (Cal. Complaint § 68). </s> The four primary insurer defendants (Hartford, Aetna, CIGNA, and Allstate) also encouraged key actors in the London reinsurance market, an important provider of reinsurance for North American risks, to withhold reinsurance for coverages written on the 1984 ISO CGL forms. Id., at 25-26 (Cal. Complaint §§ 69-70). As a consequence, many London-based underwriters, syndicates, brokers, and reinsurance companies informed ISO of their intention to withhold reinsurance on the 1984 forms, id., at 26-27 (Cal. Complaint §§ 71-75), and at least some of them told ISO that they would withhold reinsurance until ISO incorporated all four desired changes, see supra, at 3 and n. 3, into the ISO CGL forms. App. 26 (Cal. Complaint § 74). </s> For the first time ever, ISO invited representatives of the domestic and foreign reinsurance markets to speak at an ISO Executive Committee meeting. Id., at 27-28 (Cal. Complaint § 78). At that meeting, the reinsurers "presented [509 U.S. 764, 8] their agreed-upon positions that there would be changes in the CGL forms or no reinsurance." Id., at 29 (Cal. Complaint § 82). The ISO Executive Committee then voted to include a retroactive-date provision in the claims-made form, and to exclude all pollution coverage from both new forms. (But it neither eliminated the occurrence form nor added a legal defense cost cap.) The 1984 ISO CGL forms were then withdrawn from the marketplace, and replaced with forms (1986 ISO CGL forms) containing the new provisions. Ibid. (Cal. Complaint § 84). After ISO got regulatory approval of the 1986 forms in most States where approval was needed, it eliminated its support services for the 1973 CGL form, thus rendering it impossible for most ISO members to continue to use the form. Id., at 32-33 (Cal. Complaint §§ 97, 99). </s> The Fifth Claim for Relief in the California Complaint, id., at 43-44 (§§ 131-135), and the virtually identical Third Claim for Relief in the Connecticut Complaint, id., at 92-94 (§§ 125-129), charge a conspiracy among a group of London reinsurers and brokers to coerce primary insurers in the United States to offer CGL coverage only on a claims-made basis. The reinsurers collectively refused to write new reinsurance contracts for, or to renew longstanding contracts with, "primary . . . insurers unless they were prepared to switch from the occurrence to the claims-made form," id., at 30 (Cal. Complaint § 88); they also amended their reinsurance contracts to cover only claims made before a "`sunset date,'" thus eliminating reinsurance for claims made on occurrence policies after that date, id., at 31 (Cal. Complaint §§ 90-92). </s> The Sixth Claim for Relief in the California Complaint, id., at 45-46 (§§ 136-140), and the nearly identical Fourth Claim for Relief in the Connecticut Complaint, id., at 94-95 (§§ 130-134), charge another conspiracy among a somewhat different group of [509 U.S. 764, 9] London reinsurers to withhold reinsurance for pollution coverage. The London reinsurers met and agreed that all reinsurance contracts covering North American casualty risks, including CGL risks, would be written with a complete exclusion for pollution liability coverage. Id., at 32 (Cal. Complaint §§ 94-95). In accordance with this agreement, the parties have in fact excluded pollution liability coverage from CGL reinsurance contracts since at least late 1985. Ibid. (Cal. Complaint § 94). </s> The Seventh Claim for Relief in the California Complaint, id., at 46-47 (§§ 141-145), and the closely similar Sixth Claim for Relief in the Connecticut Complaint, id., at 97-98 (§§ 140-144), charge a group of domestic primary insurers, foreign reinsurers, and the ISO with conspiring to restrain trade in the markets for "excess" and "umbrella" insurance by drafting model forms and policy language for these types of insurance, which are not normally offered on a regulated basis. Id., at 33 (Cal. Complaint 101). The ISO Executive Committee eventually released standard language for both "occurrence" and "claims-made" umbrella and excess policies; that language included a retroactive date in the claims-made version and an absolute pollution exclusion and a legal defense cost cap in both versions. Id., at 34 (Cal. Complaint § 105). </s> Finally, the Eighth Claim for Relief in the California Complaint, id., at 47-49 (§§ 146-150), and its counterpart in the Fifth Claim for Relief in the Connecticut Complaint, id., at 95-97 (§§ 135-139), charge a group of London and domestic retrocessional reinsurers 5 with conspiring to withhold retrocessional reinsurance [509 U.S. 764, 10] for North American seepage, pollution, and property contamination risks. Those retrocessional reinsurers signed, and have implemented, an agreement to use their "`best endeavors'" to ensure that they would provide such reinsurance for North American risks "`only . . . where the original business includes a seepage and pollution exclusion wherever legal and applicable.'" Id., at 35 (Cal. Complaint § 108). 6 </s> C </s> Nineteen States and a number of private plaintiffs filed 36 complaints against the insurers involved in this course of events, charging that the conspiracies described above violated 1 of the Sherman Act, 15 U.S.C. 1. After the actions had been consolidated for litigation in the Northern District of California, the defendants moved to dismiss for failure to state a cause of action, or, in the alternative, for summary judgment. The District Court granted the motions to dismiss. In re Insurance Antitrust Litigation, 723 F.Supp. 464 (1989). It held that the conduct alleged fell within the grant of antitrust immunity contained in 2(b) of the McCarran-Ferguson Act, 15 U.S.C. 1012(b), because it amounted to "the business of insurance" and was "regulated by State Law" within the meaning of that section; none of the conduct, in the District Court's view, amounted to a "boycott" within the meaning of the 3(b) exception to that grant of immunity. 15 U.S.C. 1013(b). The District Court also dismissed the three claims that named only [509 U.S. 764, 11] certain London-based defendants, 7 invoking international comity and applying the Ninth Circuit's decision in Timberlane Lumber Co. v. Bank of America, N.T. & S.A., 549 F.2d 597 (1976). </s> The Court of Appeals reversed. In re Insurance Antitrust Litigation, 938 F.2d 919 (CA9 1991). Although it held the conduct involved to be "the business of insurance" within the meaning of 2(b), it concluded that the defendants could not claim McCarran-Ferguson Act antitrust immunity for two independent reasons. First, it held, the foreign reinsurers were beyond the regulatory jurisdiction of the States; because their activities could not be "regulated by State Law" within the meaning of 2(b), they did not fall within that section's grant of immunity. Although the domestic insurers were "regulated by State Law," the court held, they forfeited their 2(b) exemption when they conspired with the nonexempt foreign reinsurers. Second, the Court of Appeals held that, even if the conduct alleged fell within the scope of 2(b), it also fell within the 3(b) exception for "act[s] of boycott, coercion, or intimidation." Finally, as to the three claims brought solely against foreign defendants, the court applied its Timberlane analysis, but concluded that the principle of international comity was no bar to exercising Sherman Act jurisdiction. </s> We granted certiorari in No. 91-1111 to address two narrow questions about the scope of McCarran-Ferguson Act antitrust immunity, 8 and in No. 91-1128 to address the application [509 U.S. 764, 12] of the Sherman Act to the foreign conduct at issue. 9 </s> 506 U.S. 814 (1992). We now affirm in part, reverse in part, and remand. </s> II </s> The petition in No. 91-1111 touches on the interaction of two important pieces of economic legislation. The Sherman Act declares "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, . . . to be illegal." 15 U.S.C. 1. The McCarran-Ferguson Act provides that regulation of the insurance industry is generally a matter for the States, 15 U.S.C. 1012(a), and (again, generally) that "[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance," 1012(b). Section 2(b) of the McCarran-Ferguson Act makes it clear nonetheless that the Sherman Act applies "to the business of insurance to the extent that such business is not regulated by State Law," 1012(b), and 3(b) provides that nothing in the McCarran-Ferguson Act "shall render the . . . Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." 1013(b). </s> Petitioners in No. 91-1111 are all of the domestic defendants in the consolidated cases: the four domestic primary insurers, the domestic reinsurers, the trade associations ISO and RAA, and the domestic reinsurance broker Thomas A. Greene & Company, Inc. They argue that the Court of [509 U.S. 764, 13] Appeals erred in holding, first, that their conduct, otherwise immune from antitrust liability under 2(b) of the McCarran-Ferguson Act, lost its immunity when they conspired with the foreign defendants, and, second, that their conduct amounted to "act[s] of boycott" falling within the exception to antitrust immunity set out in 3(b). We conclude that the Court of Appeals did err about the effect of conspiring with foreign defendants, but correctly decided that all but one of the complaints' relevant Claims for Relief are fairly read to allege conduct falling within the "boycott" exception to McCarran-Ferguson Act antitrust immunity. We therefore affirm the Court of Appeals' judgment that it was error for the District Court to dismiss the complaints on grounds of McCarran-Ferguson Act immunity, except as to the one claim for relief that the Court of Appeals correctly found to allege no boycott. </s> A </s> By its terms, the antitrust exemption of 2(b) of the McCarran-Ferguson Act applies to "the business of insurance" to the extent that such business is regulated by state law. While "business" may mean "[a] commercial or industrial establishment or enterprise," Webster's New International Dictionary 362 (2d ed. 1942), the definite article before "business" in 2(b) shows that the word is not used in that sense, the phrase "the business of insurance" obviously not being meant to refer to a single entity. Rather, "business" as used in 2(b) is most naturally read to refer to "[m]ercantile transactions; buying and selling; [and] traffic." Ibid. </s> The cases confirm that "the business of insurance" should be read to single out one activity from others, not to distinguish one entity from another. In Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205 (1979), for example, we held that 2(b) did not exempt an insurance company from antitrust liability for making an agreement fixing the price of prescription drugs to be sold to Blue Shield policyholders. [509 U.S. 764, 14] Such activity, we said, "would be exempt from the antitrust laws if Congress had extended the coverage of the McCarran-Ferguson Act to the "business of insurance companies." But that is precisely what Congress did not do." Id., at 233 (footnote omitted); see SEC v. National Securities, Inc., 393 U.S. 453, 459 (1969) (the McCarran-Ferguson Act's "language refers not to the persons or companies who are subject to state regulation, but to laws `regulating the business of insurance'") (emphasis in original). And in Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119 (1982), we explicitly framed the question as whether "a particular practice is part of the `business of insurance' exempted from the antitrust laws by 2(b)," id., at 129 (emphasis added), and each of the three criteria we identified concerned a quality of the practice in question: "first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry," ibid. (emphasis in original). </s> The Court of Appeals did not hold that, under these criteria, the domestic defendants' conduct fell outside "the business of insurance"; to the contrary, it held that that condition was met. 10 See 938 F.2d, at 927. Nor did it hold the domestic defendants' conduct to be "[un]regulated by State Law." Rather, it constructed an altogether different chain of reasoning, the middle link of which comes from a sentence in our opinion in Royal Drug Co. "[R]egulation . . . of foreign reinsurers," the Court of Appeals explained, "is beyond the jurisdiction of the states," 938 F.2d, at 928, and [509 U.S. 764, 15] hence 2(b) does not exempt foreign reinsurers from antitrust liability, because their activities are not "regulated by State Law." Under Royal Drug Co., "an exempt entity forfeits antitrust exemption by acting in concert with nonexempt parties." 440 U.S., at 231 . Therefore, the domestic insurers, by acting in concert with the nonexempt foreign insurers, lost their McCarran-Ferguson Act antitrust immunity. See 938 F.2d, at 928. This reasoning fails, however, because even if we were to agree that foreign reinsurers were not subject to state regulation (a point on which we express no opinion), the quoted language from Royal Drug Co., read in context, does not state a proposition applicable to this litigation. </s> The full sentence from Royal Drug Co. places the quoted fragment in a different light. "In analogous contexts," we stated, "the Court has held that an exempt entity forfeits antitrust exemption by acting in concert with nonexempt parties." 440 U.S., at 231 . We then cited two cases dealing with the Capper-Volstead Act, which immunizes from liability under 1 of the Sherman Act particular activities of certain persons "engaged in the production of agricultural products." 11 Capper-Volstead Act, 1 42 Stat. 388, 7 U.S.C. 291; see Case-Swayne Co. v. Sunkist Growers, [509 U.S. 764, 16] Inc., 389 U.S. 384 (1967); United States v. Borden Co., 308 U.S. 188 (1939). Because these cases relied on statutory language referring to certain "persons," whereas we specifically acknowledged in Royal Drug Co. that the McCarran-Ferguson Act immunizes activities rather than entities, see 440 U.S., at 232 -233, the analogy we were drawing was, of course, a loose one. The agreements that insurance companies made with "parties wholly outside the insurance industry," id., at 231, we noted, such as the retail pharmacists involved in Royal Drug Co. itself, or "automobile body repair shops or landlords," id., at 232 (footnote omitted), are unlikely to be about anything that could be called "the business of insurance," as distinct from the broader "`business of insurance companies,'" id., at 233. The alleged agreements at issue in the instant litigation, of course, are entirely different; the foreign reinsurers are hardly "wholly outside the insurance industry," and respondents do not contest the Court of Appeals' holding that the agreements concern "the business of insurance." These facts neither support even the rough analogy we drew in Royal Drug Co. nor fall within the rule about acting in concert with nonexempt parties, which derived from a statute inapplicable here. Thus, we think it was error for the Court of Appeals to hold the domestic insurers bereft of their McCarran-Ferguson Act exemption simply because they agreed or acted with foreign reinsurers that, we assume for the sake of argument, were "not regulated by State Law." 12 </s> B </s> That the domestic defendants did not lose their 2(b) exemption by acting together with foreign reinsurers, however, is not enough reason to reinstate the District Court's [509 U.S. 764, 17] dismissal order, for the Court of Appeals reversed that order on two independent grounds. Even if the participation of foreign reinsurers did not affect the 2(b) exemption, the Court of Appeals held, the agreements and acts alleged by the plaintiffs constitute "agreement[s] to boycott" and "act[s] of boycott [and] coercion" within the meaning of 3(b) of the McCarran-Ferguson Act, which makes it clear that the Sherman Act applies to such agreements and acts regardless of the 2(b) exemption. See 938 F.2d, at 928. I agree with the Court that, construed in favor of the plaintiffs, the First, Second, Third, and Fourth Claims for Relief in the California Complaint, and the First and Second Claims for Relief in the Connecticut Complaint, allege one or more 3(b) "act[s] of boycott," and are thus sufficient to survive a motion to dismiss. See infra,, at 23; post, at 13. </s> In reviewing the motions to dismiss, however, the Court has decided to use what I believe to be an overly narrow definition of the term "boycott" as used in 3(b), confining it to those refusals to deal that are "unrelated" or "collateral" to the objective sought by those refusing to deal. Post, at 4-5. I do not believe that the McCarran-Ferguson Act or our precedents warrant such a cramped reading of the term. </s> The majority and I find common ground in four propositions concerning 3(b) boycotts, as established in our decisions in St. Paul Fire & Marine Ins. Co. v. Barr, 438 U.S. 531 (1978), and United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944). First, as we noted in St. Paul, our only prior decision construing "boycott" as it appears in 3(b), only those refusals to deal involving the coordinated action of multiple actors constitute 3(b) boycotts: "conduct by individual actors falling short of concerted activity is simply not a `boycott' within [the meaning of] 3(b)." 438 U.S., at 555 ; see post, at 2 ("`boycott'" used "to describe . . . [509 U.S. 764, 18] collective action"); ibid, ("To `boycott' means `[t]o combine in refusing to hold relations'" (citation omitted)). </s> Second, a 3(b) boycott need not involve an absolute refusal to deal. 13 A primary goal of the alleged conspirators in South-Eastern Underwriters, as we described it, was "to force nonmember insurance companies into the conspiracies." 14 </s> 322 U.S., at 535 ; cf. Joint Hearing on S. 1362, H.R. 3269, and H.R. 3270 before the Subcommittees of the Senate Committee on the Judiciary, 78th Cong., 1st Sess., pt. 2, p. 335 (1943) (statement of Edward L. Williams, President, Insurance Executives Association) ("[T]he companies that want to come into the Interstate Underwriters Board can come in there. I do not know of any company that is turned down."). Thus, presumably, the refusals to deal orchestrated by the defendant would cease if the targets agreed to join the association and abide by its terms. See post, at 3 ("[T]he refusal to deal may . . . be conditional".) (emphasis omitted). </s> Third, contrary to petitioners' contentions, see Brief for Petitioners in No. 91-1111, pp. 32, n. 14, 34, 38-39, a 3(b) [509 U.S. 764, 19] boycott need not entail unequal treatment of the targets of the boycott and its instigators. Some refusals to deal (those, perhaps, which are alleged to violate only 2 of the Sherman Act 15 ) may have as their object the complete destruction of the business of competitors; these may well involve unconditional discrimination against the targets. Other refusals to deal, however, may seek simply to prevent competition as to the price or features of the product sold; and these need not depend on unequal treatment of the targets. Assuming, as the South-Eastern Underwriters Court appears to have done, that membership in the defendant association was open to all insurers, the association is most readily seen as having intended to treat all insurers equally: they all had the choice either to join the association and abide by its rules, or to be subjected to the "boycotts," and acts of coercion and intimidation, alleged in that case. See post, at 10 (describing South-Eastern Underwriters as involving a "boycott, by primary insurers, of competitors who refused to join their price-fixing conspiracy"). </s> Fourth, although a necessary element, "concerted activity" is not, by itself, sufficient for a finding of "boycott" under 3(b). Were this the case, we recognized in Barr, 3(b) might well "`devour the broad antitrust immunity bestowed by 2(b),'" 438 U.S., at 545 , n. 18 (quoting id., at 559 (Stewart, J., dissenting)), since every "contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce," 15 U.S.C. 1, involves "concerted activity." Thus, we suggested, simple price-fixing has been treated neither as a boycott nor as coercion "in the absence of any additional enforcement activity." 438 U.S., at 545 , n. 18; see post, at 5 (contending that simple concerted agreements on contract terms are not properly characterized as boycotts). [509 U.S. 764, 20] </s> Contrary to the majority's view, however, our decisions have suggested that "enforcement activity" is a multifarious concept. The South-Eastern Underwriters Court, which coined the phrase "boycotts[,] . . . coercion and intimidation," 322 U.S., at 535 ; see n. 14, supra, provides us with a list of actions that, it finds, are encompassed by these terms. "Companies not members of [the association]," it states, "were cut off from the opportunity to reinsure their risks, and their services and facilities were disparaged; independent sales agencies who defiantly represented non-[association] companies were punished by a withdrawal of the right to represent the members of [the association]; and persons needing insurance who purchased from non-[association] companies were threatened with boycotts and withdrawal of all patronage." 322 U.S., at 535 -536. Faced with such a list, and with all of the other instances in which we have used the term "boycott," we rightly came to the conclusion in Barr that, as used in our cases, the term does not refer to a "`unitary phenomenon.'" 438 U.S., at 543 (quoting P. Areeda, Antitrust Analysis 381 (2d ed. 1974)). </s> The question in this litigation is whether the alleged activities of the domestic defendants, acting together with the foreign defendants who are not petitioners here, include "enforcement activities" that would raise the claimed attempts to fix terms to the level of 3(b) boycotts. I believe they do. The core of the plaintiffs' allegations against the domestic defendants concern those activities that form the basis of the First, Second, Third, and Fourth Claims for Relief in the California Complaint, and the Second Claim for Relief in the Connecticut Complaint: the conspiracies involving both the primary insurers and domestic and foreign brokers and reinsurers to force changes in the ISO CGL forms. According to the complaints, primary insurer defendants Hartford and Allstate first tried to convince other members of the ISO that the ISO CGL forms should be changed to limit [509 U.S. 764, 21] coverage in the manner we have detailed above, see supra, at 5-6; but they failed to persuade a majority of members of the relevant ISO committees, and the changes were not made. Unable to persuade other primary insurers to agree voluntarily to their terms, Hartford and Allstate, joined by Aetna and CIGNA, sought the aid of other individuals and entities who were not members of ISO, and who would not ordinarily be parties to an agreement setting the terms of primary insurance, not being in the business of selling it. The four primary insurers convinced these individuals and entities, the reinsurers, to put pressure on ISO and its members by refusing to reinsure coverages written on the ISO CGL forms until the desired changes were made. Both domestic and foreign reinsurers, acting at the behest of the four primary insurers, announced that they would not reinsure under the ISO CGL forms until changes were made. As an immediate result of this pressure, ISO decided to include a retroactive-date provision in its claims-made form, and to exclude all pollution coverage from both its claims-made and occurrence forms. In sum, the four primary insurers solicited refusals to deal from outside the primary insurance industry as a means of forcing their fellow primary insurers to agree to their terms; the outsiders, acting at the behest of the four, in fact refused to deal with primary insurers until they capitulated, which, in part at least, they did. </s> This pattern of activity bears a striking resemblance to the first act of boycott listed by the South-Eastern Underwriters Court; although neither the South-Eastern Underwriters opinion nor the underlying indictment, see Transcript of Record, O.T. 1943, No. 354, p. 11 (§ 22(e)), details exactly how the defendants managed to "cut off [nonmembers] from the opportunity to reinsure their risks," 322 U.S., at 535 , the defendants could have done so by prompting reinsurance companies to refuse to deal with nonmembers, [509 U.S. 764, 22] just as is alleged here. 16 Moreover, the activity falls squarely within even the narrow theory of the 3(b) exception Justice Stewart advanced in dissent in Barry. Under that theory, 17 the 3(b) exception should be limited to "attempts by members of the insurance business to force other members to follow the industry's private rules and practices." [509 U.S. 764, 23] 438 U.S., at 565 . I can think of no better description of the four primary insurers' activities in this litigation. For these reasons, I agree with the Court's ultimate conclusion that the Court of Appeals was correct in reversing the District Court's dismissal of the First, Second, Third, and Fourth Claims for Relief in the California Complaint, and the Second Claim for Relief in the Connecticut Complaint. 18 </s> The majority concludes that, so long as the reinsurers' role in this course of action was limited to "a concerted [509 U.S. 764, 24] agreement to seek particular terms in particular transactions," post, at 3, the course of action could never constitute a 3(b) boycott. The majority's emphasis on this conclusion assumes an artificial segmentation of the course of action, and a false perception of the unimportance of the elements of that course of action other than the reinsurers' agreement. The majority concedes that the complaints allege, not just implementation of a horizontal agreement, but refusals to deal that occurred "at the behest of," or were "solicited by," the four primary insurers, who were "competitors of the target[s]." Post, at 10 (citations and internal quotation marks omitted). But it fails to acknowledge several crucial features of these events that bind them into a single course of action recognizable as a 3(b) boycott. </s> First, the allegation that the reinsurers acted at the behest of the four primary insurers excludes the possibility that the reinsurers acted entirely in their own independent self-interest, and would have taken exactly the same course of action without the intense efforts of the four primary insurers. Although the majority never explicitly posits such autonomy on the part of the reinsurers, this would seem to be the only point of its repeated emphasis on the fact that "the scope and predictability of the risks assumed in a reinsurance contract depend entirely upon the terms of the primary policies that are reinsured." Post, at 9. If the encouragement of the four primary insurers played no role in the reinsurers' decision to act as they did, then it is difficult to see how one could describe the reinsurers as acting at the behest of the primary insurers, an element I find [509 U.S. 764, 25] crucial to the 3(b) boycott alleged here. From the vantage point of a ruling on motions to dismiss, however, I discern sufficient allegations in the complaints that this is not the case. In addition, according to the complaints, the four primary insurers were not acting out of concern for the reinsurers' financial health when they prompted the reinsurers to refuse reinsurance for certain risks; rather, they simply wanted to ensure that no other primary insurer would be able to sell insurance policies that they did not want to sell. Finally, as the complaints portray the business of insurance, reinsurance is a separate, specialized product, "[t]he availability [of which] affects the ability and willingness of primary insurers to provide insurance to their customers." App. 18 (Cal. Complaint § 34). Thus, contrary to the majority's assertion, the boundary between the primary insurance industry and the reinsurance industry is not merely "technica[l]." Post, at 9. </s> The majority insists that I "disregar[d] th[e] integral relationship between the terms of the primary insurance form and the contract of reinsurance," post, at 9, a fact which it seems to believe makes it impossible to draw any distinction whatsoever between primary insurers and reinsurers. Yet it is the majority that fails to see that, in spite of such an "integral relationship," the interests of primary insurer and reinsurer will almost certainly differ in some cases. For example, the complaints allege that reinsurance contracts often "layer" risks, "in the sense that [a] reinsurer may have to respond only to claims above a certain amount. . . ." App. 10 (Cal. Complaint § 4.q); id., at 61 (Conn. Complaint § 4(f)). Thus, a primary insurer might be much more concerned than its reinsurer about a risk that resulted in a high number of relatively small claims. Or the primary insurer might simply perceive a particular risk differently from the reinsurer. The reinsurer might be indifferent as to whether a particular risk was covered, so long as the reinsurance premiums were adjusted to its satisfaction, whereas [509 U.S. 764, 26] the primary insurer might decide that the risk was "too hot to handle," on a standardized basis, at any cost. The majority's suggestion that "to insist upon certain primary-insurance terms as a condition of writing reinsurance is in no way `artificial,'" post, at 9-10; see post, at 8, simply ignores these possibilities; the conditions could quite easily be "artificial," in the sense that they are not motivated by the interests of the reinsurers themselves. Because the parties have had no chance to flesh out the facts of this case, because I have no a priori knowledge of those facts, and because I do not believe I can locate them in the pages of insurance treatises, I would not rule out these possibilities on a motion to dismiss. </s> Believing that there is no other principled way to narrow the 3(b) exception, the majority decides that "boycott" encompasses just those refusals to deal that are "unrelated" or "collateral" to the objective sought by those refusing to deal. Post, at 4-5. This designation of a single "`unitary phenomenon,'" Barry, 438 U.S., at 543 , to which the term "boycott" will henceforth be confined, is of course at odds with our own description of our Sherman Act cases in Barry. 19 See ibid. Moreover, the limitation to "collateral" refusals to deal threatens to shrink the 3(b) exception far more than the majority is willing to admit. Even if the reinsurers refused all reinsurance to primary insurers "who wrote insurance on disfavored forms," including insurance "as to risks written on other forms," the majority states, the reinsurers would not be engaging in a 3(b) boycott if "the primary insurers' other business were relevant to the proposed insurance contract (for example, if the reinsurer bears greater risk where the primary insurer engages in riskier [509 U.S. 764, 27] businesses)." Post, at 12. (emphasis deleted). Under this standard, and under facts comparable to those in this litigation, I assume that reinsurers who refuse to deal at all with a primary insurer unless it ceases insuring a particular risk would not be engaging in a 3(b) boycott if they could show that (1) insuring the risk in question increases the probability that the primary insurer will become insolvent, and that (2) it costs more to administer the reinsurance contracts of a bankrupt primary insurer (including those unrelated to the risk that caused the primary insurer to declare bankruptcy). One can only imagine the variety of similar arguments that may slowly plug what remains of the 3(b) exception. For these reasons, I cannot agree with the majority's narrow theory of 3(b) boycotts. </s> III </s> Finally, we take up the question presented by No. 91-1128, whether certain claims against the London reinsurers should have been dismissed as improper applications of the Sherman Act to foreign conduct. The Fifth Claim for Relief in the California Complaint alleges a violation of 1 of the Sherman Act by certain London reinsurers who conspired to coerce primary insurers in the United States to offer CGL coverage on a claims-made basis, thereby making "occurrence CGL coverage . . . unavailable in the State of California for many risks." App. 43-44 (§§ 131-135). The Sixth Claim for Relief in the California Complaint alleges that the London reinsurers violated 1 by a conspiracy to limit coverage of pollution risks in North America, thereby rendering "pollution liability coverage . . . almost entirely unavailable for the vast majority of casualty insurance purchasers in the State of California." Id., at 45-46 (§§ 136-140). The Eighth Claim for Relief in the California Complaint alleges a further 1 violation by the London reinsurers who, along with domestic retrocessional reinsurers, conspired to limit coverage of seepage, pollution, and property contamination risks in North [509 U.S. 764, 28] America, thereby eliminating such coverage in the State of California. 20 Id., at 47-48 (§§ 146-150). </s> At the outset, we note that the District Court undoubtedly had jurisdiction of these Sherman Act claims, as the London reinsurers apparently concede. See Tr. of Oral Arg. 37 ("Our position is not that the Sherman Act does not apply in the sense that a minimal basis for the exercise of jurisdiction doesn't exist here. Our position is that there are certain circumstances, and that this is one of them, in which the interests of another State are sufficient that the exercise of that jurisdiction should be restrained"). 21 Although the proposition was perhaps not always free from doubt, see American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909), it is well established by now that the Sherman Act applies to foreign conduct that was meant to produce, and did in fact produce, some substantial effect in the United States. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 582 , n. 6 (1986); United States v. Aluminum Co. of America, 148 F.2d 416, 444 (CA2 1945) (L. Hand, J.); Restatement (Third) of Foreign Relations Law of the United States 415, and Reporters' Note 3 (1987) (hereinafter Restatement (Third) Foreign Relations Law); 1 P. Areeda & Turner, Antitrust Law § 236 [509 U.S. 764, 29] (1978); cf. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 704 (1962); Steele v. Bulova Watch Co., 344 U.S. 280, 288 (1952); United States v. Sisal Sales Corp., 274 U.S. 268, 275-276 (1927). 22 Such is the conduct alleged here: that the London reinsurers engaged in unlawful conspiracies to affect the market for insurance in the United States and that their conduct in fact produced substantial effect. 23 See 938 F.2d, at 933. </s> According to the London reinsurers, the District Court should have declined to exercise such jurisdiction under the principle of international comity. 24 The Court of Appeals [509 U.S. 764, 30] agreed that courts should look to that principle in deciding whether to exercise jurisdiction under the Sherman Act. Id., at 932. This availed the London reinsurers nothing, however. To be sure, the Court of Appeals believed that "application of [American] antitrust laws to the London reinsurance market `would lead to significant conflict with English law and policy,'" and that "[s]uch a conflict, unless outweighed by other factors, would, by itself, be reason to decline exercise of jurisdiction." Id., at 933 (citation omitted). But other factors, in the court's view, including the London reinsurers' express purpose to affect United States commerce and the substantial nature of the effect produced, outweighed the supposed conflict and required the exercise of jurisdiction in this litigation. Id., at 934. </s> When it enacted the (FTAIA), Congress expressed no view on the question whether a court with Sherman Act jurisdiction should ever decline to exercise such jurisdiction on grounds of international comity. See H.R.Rep. No. 97-686, p. 13 (1982) ("If a court determines that the requirements for subject matter jurisdiction are met, [the FTAIA] would have no effect on the court['s] ability to employ notions of comity . . . or otherwise to take [509 U.S. 764, 31] account of the international character of the transaction") (citing Timberlane). We need not decide that question here, however, for even assuming that, in a proper case, a court may decline to exercise Sherman Act jurisdiction over foreign conduct (or, as JUSTICE SCALIA would put it, may conclude by the employment of comity analysis in the first instance that there is no jurisdiction), international comity would not counsel against exercising jurisdiction in the circumstances alleged here. </s> The only substantial question in this litigation is whether "there is, in fact, a true conflict between domestic and foreign law." Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 555 (1987) (BLACKMUN, J., concurring in part and dissenting in part). The London reinsurers contend that applying the Act to their conduct would conflict significantly with British law, and the British Government, appearing before us as amicus curiae, concurs. See Brief for Petitioners Merrett Underwriting Agency management Ltd. et al.in No. 91-1128, pp. 22-27; Brief for Government of United Kingdom of Great Britain and Northern Ireland as Amicus Curiae 10-14. They assert that Parliament has established a comprehensive regulatory regime over the London reinsurance market, and that the conduct alleged here was perfectly consistent with British law and policy. But this is not to state a conflict. "[T]he fact that conduct is lawful in the state in which it took place will not, of itself, bar application of the United States antitrust laws," even where the foreign state has a strong policy to permit or encourage such conduct. Restatement (Third) Foreign Relations Law 415, Comment j; see Continental Ore Co., supra, at 706-707. No conflict exists, for these purposes, "where a person subject to regulation by two states can comply with the laws of both." Restatement (Third) Foreign Relations Law 403, Comment e. 25 Since [509 U.S. 764, 32] the London reinsurers do not argue that British law requires them to act in some fashion prohibited by the law of the United States, see Reply Brief for Petitioners Merrett Underwriting Agency Management Ltd. et al. in No. 91-1128, pp. 7-8, or claim that their compliance with the laws of both countries is otherwise impossible, we see no conflict with British law. See Restatement (Third) Foreign Relations Law 403, Comment e, 415, Comment j. We have no need in this litigation to address other considerations that might inform a decision to refrain from the exercise of jurisdiction on grounds of international comity. </s> IV </s> The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> [Footnote * Justice White, justice Blackmun, and Justice Stevens join this opinion in its entirety, and The Chief Justice joins Parts I, II-A, III, and IV. </s> Footnotes [Footnote 1 CGL insurance provides "coverage for third party casualty damage claims against a purchaser of insurance (the `insured')." App. 8 (Cal. Complaint § 4.a). </s> [Footnote 2 Following the lower courts and the parties, see In re Insurance Antitrust Litigation, 938 F.2d 919, 924, 925 (CA9 1991), we will treat the complaint filed by California as representative of the claims of Alabama, Arizona California Massachusetts, New York, West Virginia, and Wisconsin, and the complaint filed by Connecticut as representative of the claims of Alaska, Colorado, Connecticut, Louisiana, Maryland, Michigan, Minnesota, Montana, New Jersey, Ohio, Pennsylvania, and Washington. As will become apparent, the California and Connecticut Complaints differ slightly in their presentations of background information and their claims for relief; their statements of facts are identical. Because the private party plaintiffs have chosen in their brief in this Court to use the California Complaint as a "representative model" of their claims, Brief for Respondents (Private Party Plaintiffs) 3, n. 6, we will assume that their [509 U.S. 764, 3] complaints track that complaint. On remand, the courts below will of course be free to take into account any relevant differences among the complaints that the parties may bring to their attention. </s> [Footnote 3 The First Claim for Relief in the Connecticut Complaint, App. 88-90 (§§ 115-119), charges all the defendants with an overarching conspiracy to force all four of these changes on the insurance market. The eight federal law Claims for Relief in the California Complaint, id., at 36-49 (§§ 111-150), charge various subgroups of the defendants with separate conspiracies that had more limited objects; not all the defendants are alleged to have desired all four changes. </s> [Footnote 4 The First Claim for Relief in the Connecticut Complaint, id., at 88-90 (§§ 115-119), charging an overarching conspiracy encompassing all of the defendants and all of the conduct alleged, is a special case. See n. 18, infra. </s> [Footnote 5 The California and Connecticut Complaints' Statements of Facts describe this conspiracy as involving "[s]pecialized reinsurers in London and the United States." App. 34 (Cal. Complaint § 106); id., at 87 (Conn. Complaint § 110). The claims for relief, however, name only London reinsurers; they do not name any of the domestic defendants who are the [509 U.S. 764, 10] petitioners in No. 91-1111. See id., at 48 (Cal. Complaint § 147); id., at 96 (Conn. Complaint § 136). Thus, we assume that the domestic reinsurers alleged to be involved in this conspiracy are among the "unnamed coconspirators" mentioned in the complaints. See id., at 48 (Cal.Complaint § 147); id., at 96 (Conn. Complaint § 136). </s> [Footnote 6 The Ninth, Tenth, and Eleventh Claims for Relief in the California Complaint, id., at 49-50 (§§ 151-156), and the Seventh Claim for Relief in the Connecticut Complaint, id., at 98 (§§ 145-146), allege state law violations not at issue here. </s> [Footnote 7 These are the Fifth, Sixth, and Eighth Claims for Relief in the California Complaint, and the corresponding Third, Fourth, and Fifth Claims for Relief in the Connecticut Complaint. </s> [Footnote 8 We limited our grant of certiorari in No. 91-1111 to these questions: "1. Whether domestic insurance companies whose conduct otherwise would be exempt from the federal antitrust laws under the McCarran-Ferguson Act lose that exemption because they participate with foreign reinsurers in the business of insurance," and "2. Whether agreements among primary insurers and reinsurers on such matters as standardized advisory insurance policy forms and terms of insurance coverage [509 U.S. 764, 12] constitute a `boycott' outside the exemption of the McCarran-Ferguson Act." Pet. for Cert. in No. 91-1111, p. i; see 506 U.S. 814 (1992). </s> [Footnote 9 The question presented in No. 91-1128 is: Did the court of appeals properly assess the extraterritorial reach of the U.S. antitrust laws in light of this Court's teachings and contemporary understanding of international law when it held that a U.S. district court may apply U.S. law to the conduct of a foreign insurance market regulated abroad? Pet. for Cert. in No. 91-1128, p. i. </s> [Footnote 10 The activities in question here, of course, are alleged to violate federal law, and it might be tempting to think that unlawful acts are implicitly excluded from "the business of insurance." Yet 2(b)'s grant of immunity assumes that acts which, but for that grant, would violate the Sherman Act, the Clayton Act, or the Federal Trade Commission Act, are part of "the business of insurance." </s> [Footnote 11 We also cited two cases dealing with the immunity of certain agreements of labor unions under the Clayton and Norris-LaGuardia Acts. See 440 U.S., at 231 -232. These cases, however, did not hold that labor unions lose their immunity whenever they enter into agreements with employers; to the contrary, we acknowledged in one of the cases that "the law contemplates agreements on wages not only between individual employers and a union, but agreements between the union and employers in a multi-employer bargaining unit." Mine Workers v. Pennington, 381 U.S. 657, 664 (1965). Because the cases stand only for the proposition that labor unions are not immune from antitrust liability for certain types of agreements with employers, such as agreements "to impose a certain wage scale on other bargaining units," id., at 665, they do not support the far more general statement that exempt entities lose immunity by conspiring with nonexempt entities. </s> [Footnote 12 The Court of Appeals' assumption that "the American reinsurers . . . are subject to regulation by the states, and therefore prima facie immune," 938 F.2d, at 928, appears to rest on the entity-based analysis we have rejected. As with the foreign reinsurers, we express no opinion [509 U.S. 764, 17] whether the activities of the domestic reinsurers were "regulated by State Law," and leave that question to the Court of Appeals on remand. </s> [Footnote 13 Petitioners correctly concede this point. See Brief for Petitioners in No. 91-1111, p. 32, n. 14. </s> [Footnote 14 As we have noted before, see Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 217 (1979); SEC v. National Securities, Inc., 393 U.S. 453, 458 (1969), the McCarran-Ferguson Act was precipitated by our holding in South-Eastern Underwriters that the business of insurance was interstate commerce, and thus subject generally to federal regulation under the Commerce Clause, and to scrutiny under the Sherman Act specifically. Congress responded, both to "ensure that the States would continue to have the ability to tax and regulate the business of insurance," Royal Drug Co., 440 U.S., at 217 -218 (footnote omitted), and to limit the application of the antitrust laws to the insurance industry, id., at 218. In drafting the 3(b) exception to the 2(b) grant of antitrust immunity, Congress borrowed language from our description of the indictment in South-Eastern Underwriters as charging that "[t]he conspirators not only fixed premium rates and agents' commissions, but employed boycotts together with other types of coercion and intimidation to force nonmember insurance companies into the conspiracies." 322 U.S., at 535 . </s> [Footnote 15 Section 2 of the Sherman Act, 26 Stat.. 209, as amended, 15 U.S.C. 2, prohibits monopolization of, or attempts or conspiracies to monopolize, "any part of the trade or commerce among the several States, or with foreign nations." </s> [Footnote 16 The majority claims that this refusal to deal was a boycott only because "membership in the association [had] no discernible bearing upon the terms of the refused reinsurance contracts." Post, at 11. Testimony at the hearings on the bill that became the McCarran-Ferguson Act indicates that the insurance companies thought otherwise. "We say "You do not issue insurance to a company that does not do business the way we think it should be done and belong to our association." . . . It is for the protection of the public, the stockholders, and the companies. . . . You know when those large risks are taken that they have to be reinsured. We do not want to have to take a risk that is bad, or at an improper rate, or an excessive commission, we do not want our agents to take that, nor do we want to reinsure part of the risk that is written that way. We feel this way - that some groups are doing business in what is not the proper way, we feel it is not in the interest of the companies and it is not in the interest of the public, and we just do not want to do business with them." Joint Hearing on S. 1362, H.R. 3269, and H.R. 3270 before the Subcommittees of the Senate Committee on the Judiciary, 78th Cong., 1st Sess., pt. 2, p. 333 (1943) (statement of Edward L. Williams, President, Insurance Executives Association.) </s> [Footnote 17 In passing the McCarran-Ferguson Act, Justice Stewart argued, "Congress plainly wanted to allow the States to authorize anticompetitive practices which they determined to be in the public interest." St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 565 (1978) (dissenting opinion). Hence, 2(b) provides that the federal antitrust laws will generally not be applicable to those insurance business practices "regulated by State law," and presumably state law could, for example, either mandate price fixing or specifically authorize voluntary price-fixing agreements. On the other hand, Congress intended to delegate regulatory power only to the States, nothing in the McCarran-Ferguson Act suggests that Congress wanted one insurer, or a group of insurers, to be able to formulate and enforce policy for other insurers. Thus, the enforcement activities that distinguish 3(b) "boycotts" from other concerted activity include, in this context, "private enforcement . . . of industry rules and practices, even if those rules and practices are permitted by state law." Id., at 565-566 (emphasis in original) (footnote omitted). </s> [Footnote 18 The First and Sixth Claims for Relief in the Connecticut Complaint, and the Seventh Claim for Relief in the California Complaint, which also name some or all of the petitioners, present special cases. The First Claim for Relief in the Connecticut Complaint alleges an overarching conspiracy involving all of the defendants named in the complaint and all of the conduct alleged. As such, it encompasses "boycott" activity, and the Court of Appeals was correct to reverse the District Court's order dismissing it. As currently described in the Complaint's statement of facts, however, some of the actions of the reinsurers and the retrocessional reinsurers appear to have been taken independently, rather than at the behest of the primary insurer defendants. I express no opinion as to whether those acts, if they were indeed taken independently, could amount to 3(b) boycotts; but I note that they lack the key element on which I rely in this litigation to find a sufficient allegation of boycott. </s> The Seventh Claim for Relief in the California Complaint, and the virtually identical Sixth Claim for Relief in the Connecticut Complaint, allege a conspiracy among a group of domestic primary insurers, foreign reinsurers, and the ISO to draft restrictive model forms and policy language for "umbrella" and "excess" insurance. On these claims, the Court of Appeals reversed the District Court's order of dismissal as to the domestic defendants solely because those defendants "act[ed] in concert" with nonexempt foreign defendants, 938 F.2d, at 931, relying on reasoning that the Court has found to be in error, see supra, at 13-17. The Court of Appeals found that "[n]o boycotts [were] alleged as the defendants' modus operandi in respect to [excess and umbrella] insurance." 938 F.2d, at 930. I agree; even under a liberal construction of the complaints in favor of plaintiffs, I can find no allegation of any refusal to deal in connection with the drafting of the excess and umbrella insurance language. Therefore I conclude that neither the participation of unregulated parties nor the application of 3(b) furnished a basis to reverse the District [509 U.S. 764, 24] Court's dismissal of these claims as against the domestic insurers, and I would reverse the judgment of the Court of Appeals in this respect. The Fifth, Sixth, and Eighth Claims for Relief in the California Complaint and the Third, Fourth, and Fifth Claims for Relief in the Connecticut Complaint also allege concerted refusals to deal; but because they do not name any of the petitioners in No. 91-1111, the Court has no occasion to consider whether they allege 3(b) boycotts. </s> [Footnote 19 The majority contends that its concept of boycott is still "multifaceted" because it can be modified by such adjectives as "punitive," "labor," "political," and "social." Post, at 5, n. 3. This does not hide the fact that it is attempting to concoct a "precise definition" of the term, post, at 2, composed of a simple set of necessary and sufficient conditions. </s> [Footnote 20 As we have noted, see supra, at 8-10, each of these claims has a counterpart in the Connecticut Complaint. The claims each name different groups of London reinsurers, and not all of the named defendants are petitioners in No. 91-1128; but nothing in our analysis turns on these variations. </s> [Footnote 21 One of the London reinsurers, Sturge Reinsurance Syndicate Management Limited, argues that the Sherman Act does not apply to its conduct in attending a single meeting at which it allegedly agreed to exclude all pollution coverage from its reinsurance contracts. Brief for Petitioner Sturge Reinsurance Syndicate Management Ltd. in No. 91-1128, p. 22. Sturge may have attended only one meeting, but the allegations, which we are bound to credit, remain that it participated in conduct that was intended to and did, in fact, produce a substantial effect on the American insurance market. </s> [Footnote 22 JUSTICE SCALIA believes that what is at issue in this litigation is prescriptive, as opposed to subject matter, jurisdiction. Post, at 15. The parties do not question prescriptive jurisdiction, however, and for good reason: it is well established that Congress has exercised such jurisdiction under the Sherman Act. See G. Born & D. Westin, International Civil Litigation in United States Courts 542, n. 5 (2d ed. 1992) (Sherman Act is a "prime exampl[e] of the simultaneous exercise of prescriptive jurisdiction and grant of subject matter jurisdiction"). </s> [Footnote 23 Under 402 of the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 96 Stat. 1246, 15 U.S.C. 6a, the Sherman Act does not apply to conduct involving foreign trade or commerce, other than import trade or import commerce, unless "such conduct has a direct, substantial, and reasonably foreseeable effect" on domestic or import commerce. 6a(1)(A). The FTAIA was intended to exempt from the Sherman Act export transactions that did not injure the United States economy, see H.R.Rep. No. 97-686, pp. 2-3, 9-10 (1982); P. Areeda & H. Hovenkamp, Antitrust Law § 236a, pp. 296-297 (Supp. 1992), and it is unclear how it might apply to the conduct alleged here. Also unclear is whether the Act's "direct, substantial, and reasonably foreseeable effect" standard amends existing law or merely codifies it. See id. § 236a, p. 297. We need not address these questions here. Assuming that the FTAIA's standard affects this litigation, and assuming further that that standard differs from the prior law, the conduct alleged plainly meets its requirements. </s> [Footnote 24 JUSTICE SCALIA contends that comity concerns figure into the prior analysis whether jurisdiction exists under the Sherman Act. Post, at 19-20. This contention is inconsistent with the general understanding that the Sherman Act covers foreign conduct producing a substantial intended effect in the United States, and that concerns of comity come into [509 U.S. 764, 30] play, if at all, only after a court has determined that the acts complained of are subject to Sherman Act jurisdiction. See United States v. Aluminum Co. of America, 148 F.2d 416, 444 (CA2 1945) ("It follows from what we have . . . said that [the agreements at issue] were unlawful [under the Sherman Act], though made abroad, if they were intended to affect imports and did affect them"); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1294 (CA3 1979) (once court determines that jurisdiction exists under the Sherman Act, question remains whether comity precludes its exercise); H.R.Rep. No. 97-686, supra, at 13. But cf. Timberlane Lumber Co. v. Bank of America, N.T. & S.A., 549 F.2d 597, 613 (CA9 1976); I J. Atwood & K. Brewster, Antitrust and American Business Abroad 166 (1981). In any event, the parties conceded jurisdiction at oral argument, see supra, at 28-29, and we see no need to address this contention here. </s> [Footnote 25 JUSTICE SCALIA says that we put the cart before the horse in citing this authority, for he argues it may be apposite only after a determination that jurisdiction over the foreign acts is reasonable. Post, at 23-24. [509 U.S. 764, 32] But whatever the order of cart and horse, conflict in this sense is the only substantial issue before the Court. [509 U.S. 764, 1] </s> JUSTICE SCALIA delivered the opinion of the Court with respect to Part I, and delivered a dissenting opinion with respect to Part II. * </s> With respect to the petition in No. 91-1111, I join the Court's judgment and Part I and II-A of its opinion. I write separately because I do not agree with JUSTICE SOUTER's analysis, set forth in Part II-B of his opinion, of what constitutes a "boycott" for purposes of 3(b) of the McCarran-Ferguson Act, 15 U.S.C. 1013(b). With respect to the petition in No. 91-1128, I dissent from the Court's ruling concerning the extraterritorial application of the Sherman Act. Part I below discusses the boycott issue; Part II extraterritoriality. [509 U.S. 764, 2] </s> I </s> Determining proper application of 3(b) of the McCarran-Ferguson Act to the present caseS requires precise definition of the word "boycott." 1 It is a relatively new word, little more than a century old. It was first used in 1880, to describe the collective action taken against Captain Charles Boycott, an English agent managing various estates in Ireland. The Land League, an Irish organization formed the previous year, had demanded that landlords reduce their rents and had urged tenants to avoid dealing with those who failed to do so. Boycott did not bend to the demand, and instead ordered evictions. In retaliation, the tenants "sen[t] Captain Boycott to Coventry in a very thorough manner." J. McCarthy, England Under Gladstone 108 (1886). "The population of the region for miles round resolved not to have anything to do with him, and, as far as they could prevent it, not to allow any one else to have anything to do with him. . . . [T]he awful sentence of excommunication could hardly have rendered him more helplessly alone for a time. No one would work for him; no one would supply him with food." Id., at 108-109; see also H. Laidler, Boycotts and the Labor Struggle 23-27 (1968). Thus, the verb made from the unfortunate Captain's name has had from the outset the meaning it continues to carry today. To "boycott" means "[t]o combine in refusing to hold relations of any kind, social or commercial, public or private, with (a neighbour), on account of political or other differences, so as to punish him for the position he has taken up, or coerce him into abandoning it." 2 Oxford English Dictionary 468 (2d ed. 1989). </s> Petitioners have suggested that a boycott ordinarily requires "an absolute refusal to deal on any terms," which was [509 U.S. 764, 3] concededly not the case here. Brief for Petitioners in No. 91-1111, p. 31; see also Reply Brief for Petitioners in No. 91-1111, pp. 12-13. We think not. As the definition just recited provides, the refusal may be imposed "to punish [the target] for the position he has taken up, or coerce him into abandoning it." The refusal to deal may, in other words, be conditional, offering its target the incentive of renewed dealing if and when he mends his ways. This is often the case - and indeed seems to have been the case with the original Boycott boycott. Cf. McCarthy, supra, at 109 (noting that the Captain later lived "at peace" with his neighbors). Furthermore, other dictionary definitions extend the term to include a partial boycott - a refusal to engage in some, but not all, transactions with the target. See Webster's New International Dictionary 321 (2d ed. 1950) (defining "boycott" as "to withhold, wholly or in part, social or business intercourse from, as an expression of disapproval or means of coercion" (emphasis added).) </s> It is, however, important - and crucial in the present cases - to distinguish between a conditional boycott and a concerted agreement to seek particular terms in particular transactions. A concerted agreement to terms (a "cartelization") is "a way of obtaining and exercising market power by concertedly exacting terms like those which a monopolist might exact." L. Sullivan, Law of Antitrust 257 (1977). The parties to such an agreement (the members of a cartel) are not engaging in a boycott, because: </s> "They are not coercing anyone, at least in the usual sense of that word; they are merely (though concertedly) saying `we will deal with you only on the following trade terms.' </s> ". . . Indeed, if a concerted agreement, say, to include a security deposit in all contracts is a `boycott' because [509 U.S. 764, 4] it excludes all buyers who won't agree to it, then, by parity of reasoning, every price-fixing agreement would be a boycott also. The use of the single concept, boycott, to cover agreements so varied in nature can only add to confusion. Ibid. (emphasis added). </s> Thus, if Captain Boycott's tenants had agreed among themselves that they would refuse to renew their leases unless he reduced his rents, that would have been a concerted agreement on the terms of the leases, but not a boycott. 2 The tenants, of course, did more than that; they refused to engage in other, unrelated transactions with Boycott - e.g., selling him food - unless he agreed to their terms on rents. It is this expansion of the refusal to deal beyond the targeted transaction that gives great coercive force to a commercial boycott: unrelated transactions are used as leverage to achieve the terms desired. </s> The proper definition of "boycott" is evident from the Court's opinion in Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U.S. 600 (1914), which is recognized in the antitrust field as one of the "leading case[s] involving commercial boycotts." Barber, Refusals to Deal under the Federal Antitrust Laws, 103 U.Pa.L.Rev. 847, 873 (1955). The associations of retail lumber dealers in that case refused to buy lumber from wholesale lumber dealers who sold directly to consumers. The boycott attempted "to [509 U.S. 764, 5] impose as a condition . . . on [the wholesale dealers'] trade that they shall not sell in such manner that a local retailer may regard such sale as an infringement of his exclusive right to trade." 234 U.S., at 611. We held that to be an "`artificial conditio[n],'" since "the trade of the wholesaler with strangers was directly affected not because of any supposed wrong which he had done to them, but because of the grievance of a member of one of the associations." Id., at 611-612. In other words, the associations' activities were a boycott because they sought an objective - the wholesale dealers' forbearance from retail trade - that was collateral to their transactions with the wholesalers. </s> Of course, as far as the Sherman Act (outside the exempted insurance field) is concerned, concerted agreements on contract terms are as unlawful as boycotts. For example, in Paramount Famous Lasky Corp. v. United States, 282 U.S. 30 (1930), and United States v. First Nat. Pictures, Inc., 282 U.S. 44 (1930), we held unreasonable an agreement among competing motion picture distributors under which they refused to license films to exhibitors except on standardized terms. We also found unreasonable the restraint of trade in Anderson v. Shipowners Assn. of Pacific Coast, 272 U.S. 359 (1926), which involved an attempt by an association of employers to establish industry-wide terms of employment. These sorts of concerted actions, similar to what is alleged to have occurred here, are not properly characterized as "boycotts," and the word does not appear in the opinions. 3 In fact, in the 65 years [509 U.S. 764, 6] between the coining of the word and enactment of the McCarran-Ferguson Act in 1945, "boycott" appears in only seven opinions of this Court involving commercial (nonlabor) antitrust matters, and not once is it used as JUSTICE SOUTER uses it - to describe a concerted refusal to engage in particular transactions until the terms of those transactions are agreeable. 4 </s> In addition to its use in the antitrust field, the concept of "boycott" frequently appears in labor law, and in this context as well there is a clear distinction between boycotts and concerted agreements seeking terms. The ordinary strike seeking better contract terms is a "refusal to deal" - i.e., union members refuse to sell their labor until the employer capitulates to their contract demands. But no one would call this a boycott, because the conditions of the "refusal to deal" relate directly to the terms of the refused transaction (the employment contract). A refusal to work changes from strike to boycott only when it seeks to obtain action from the employer unrelated to the employment contract. This distinction is well illustrated by the famous boycott of Pullman cars by Eugene Debs' American Railway Union in 1894. The incident began when workers at the Pullman Palace Car [509 U.S. 764, 7] Company called a strike, but the "boycott" occurred only when other members of the American Railway Union, not Pullman employees, supported the strikers by refusing to work on any train drawing a Pullman car. See In re Debs, 158 U.S. 564, 566-567 (1895) (statement of the case); H. Laidler, Boycotts and the Labor Struggle 100-108 (1968). The refusal to handle Pullman cars had nothing to do with Pullman cars themselves (working on Pullman cars was no more difficult or dangerous than working on other cars); rather, it was in furtherance of the collateral objective of obtaining better employment terms for the Pullman workers. In other labor cases as well, the term "boycott" invariably holds the meaning that we ascribe to it: Its goal is to alter not the terms of the refused transaction, but the terms of workers' employment. 5 </s> The one case in which we have found an activity to constitute a "boycott" within the meaning of the McCarran-Ferguson Act is St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531 (1978). There the plaintiffs were licensed physicians and their patients, and the defendant (St. Paul) was a malpractice insurer that had refused to renew the physicians' policies on an "occurrence" basis, but insisted upon a "claims made" basis. The allegation was that, at the instance of St. Paul, the three other malpractice insurers in the State had collectively refused to write insurance for St. Paul's customers, thus forcing them to accept St. Paul's renewal terms. Unsurprisingly, we held the allegation sufficient [509 U.S. 764, 8] to state a cause of action. The insisted-upon condition of the boycott (not being a former St. Paul policyholder) was "artificial": it bore no relationship (or an "artificial" relationship) to the proposed contracts of insurance that the physicians wished to conclude with St. Paul's competitors. </s> Under the standard described, it is obviously not a "boycott" for the reinsurers to "refus[e] to reinsure coverages written on the ISO CGL forms until the desired changes were made," ante, at 21, because the terms of the primary coverages are central elements of the reinsurance contract - they are what is reinsured. See App. 16-17 (Cal. Complaint § 26-27). The "primary policies are . . . the basis of the losses that are shared in the reinsurance agreements." 1 B. Webb, H. Anderson, J. Cookman, & P. Kensicki, Principles of Reinsurance 87 (1990); see also id., at 55; Gurley, Regulation of Reinsurance in the United States, 19 Forum 72, 73 (1983). Indeed, reinsurance is so closely tied to the terms of the primary insurance contract that one of the two categories of reinsurance (assumption reinsurance) substitutes the reinsurer for the primary or "ceding" insurer and places the reinsurer into contractual privity with the primary insurer's policyholders. See id., at 73-74; Colonial American Life Ins. Co. v. Commissioner, 491 U.S. 244, 247 (1989); B. Ostrager & T. Newman, Handbook on Insurance Coverage Disputes, chs. 15-16 (5th ed. 1992). And in the other category of reinsurance (indemnity reinsurance), either the terms of the underlying insurance policy are incorporated by reference (if the reinsurance is written under a facultative agreement), see J. Butler & R. Merkin, Reinsurance Law B.1.1-04 (1992); R. Carter, Reinsurance 235 (1979), or (if the reinsurance is conducted on a treaty basis) the reinsurer will require full disclosure of the terms of the underlying insurance policies and usually require that the primary insurer not vary those terms without prior approval, see id., at 256, 297. </s> JUSTICE SOUTER simply disregards this integral relationship between the terms of the primary insurance form and [509 U.S. 764, 9] the contract of reinsurance. He describes the reinsurers as "individuals and entities who were not members of ISO, and who would not ordinarily be parties to an agreement setting the terms of primary insurance, not being in the business of selling it." Ante, at 21. While this factual assumption is crucial to JUSTICE SOUTER's reasoning (because otherwise he would not be able to distinguish permissible agreements among primary insurers), he offers no support for the statement. But even if it happens to be true, he does not explain why it must be true - that is, why the law must exclude reinsurers from full membership and participation. The realities of the industry may make explanation difficult: </s> "Reinsurers also benefit from the services by ISO and other rating or service organizations. The underlying rates and policy forms are the basis for many reinsurance contracts. Reinsurers may also subscribe to various services. For example, a facultative reinsurer may subscribe to the rating service, so that they have the rating manuals available, or purchase optional services, such as a sprinkler report for a specific property location." 2 R. Reinarz, J. Schloss, G. Patrik & P. Kensicki, Reinsurance Practices 18 (1990). </s> JUSTICE SOUTER also describes reinsurers as being "outside the primary insurance industry." Ante, at 22. That is technically true (to the extent the two symbiotic industries can be separated) but quite irrelevant. What matters is that the scope and predictability of the risks assumed in a reinsurance contract depend entirely upon the terms of the primary policies that are reinsured. The terms of the primary policies are the "subject-matter insured" by reinsurance, Carter, supra, at 4, so that to insist upon certain primary-insurance terms as a condition of writing reinsurance is in no way "artificial," and hence for a number of [509 U.S. 764, 10] reinsurers to insist upon such terms jointly is in no way a "boycott." 6 </s> JUSTICE SOUTER seems to believe that a nonboycott is converted into a boycott by the fact that it occurs "at the behest of," ante, at 21, or is "solicited" by, ibid. competitors of the target. He purports to find support for this implausible proposition in United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944), which involved a classic boycott, by primary insurers, of competitors who refused to join their price-fixing conspiracy, the South-Eastern Underwriters Association (S. E. U. A.). The conspirators would not deal with independent agents who wrote for such companies, and would not write policies for customers who insured with them. See id., at 535-536. Moreover, Justice Black's opinion for the Court noted cryptically, "[c]ompanies not members of S. E. U. A. were cut off from the opportunity to reinsure their risks." Id., at 535. JUSTICE SOUTER speculates that "the [S. E. U. A.] defendants could have [managed to cut the targets off from reinsurance] by prompting reinsurance companies to refuse to deal with nonmembers." Ante, at 22. Even assuming that is what happened, all that can be derived from S. E. U. A. is the proposition that one who prompts a boycott is a coconspirator with the boycotters. For with or without the defendants' prompting, the reinsurers' refusal to deal in S.E.U.A. was a boycott, membership in the association having no discernible bearing upon the terms of the refused reinsurance contracts. </s> JUSTICE SOUTER suggests that we have somehow mistakenly "posit[ed] . . . autonomy on the part of the reinsurers." [509 U.S. 764, 11] Ante, at 25. We do not understand this. Nothing in the complaints alleges that the reinsurers were deprived of their "autonomy," which we take to mean that they were coerced by the primary insurers. (Given the sheer size of the Lloyd's market, such an allegation would be laughable.) That is not to say that we disagree with JUSTICE SOUTER's contention that, according to the allegations, the reinsurers would not "have taken exactly the same course of action without the intense efforts of the four primary insurers." Ante, at 25. But the same could be said of the participants in virtually all conspiracies: if they had not been enlisted by the "intense efforts" of the leaders, their actions would not have been the same. If this factor renders otherwise lawful conspiracies (under McCarran-Ferguson) illegal, then the Act would have a narrow scope indeed. </s> Perhaps JUSTICE SOUTER feels that it is undesirable, as a policy matter, to allow insurers to "prompt" reinsurers not to deal with the insurers' competitors - whether or not that refusal to deal is a boycott. That feeling is certainly understandable, since, under the normal application of the Sherman Act, the reinsurers' concerted refusal to deal would be an unlawful conspiracy, and the insurers' "prompting" could make them part of that conspiracy. The McCarran-Ferguson Act, however, makes that conspiracy lawful (assuming reinsurance is state regulated), unless the refusal to deal is a "boycott." </s> Under the test set forth above, there are sufficient allegations of a "boycott" to sustain the relevant counts of complaint against a motion to dismiss. For example, the complaints allege that some of the defendant reinsurers threatened to "withdra[w] entirely from the business of reinsuring primary U.S. insurers who wrote on the occurrence form." App. 31 (Cal. Complaint § 89), id., at 83 (Conn. Complaint § 93). Construed most favorably to respondents, that allegation claims that primary insurers who wrote insurance on disfavored forms would be refused [509 U.S. 764, 12] all reinsurance, even as to risks written on other forms. If that were the case, the reinsurers might have been engaging in a boycott - they would, that is, unless the primary insurers' other business were relevant to the proposed reinsurance contract (for example, if the reinsurer bears greater risk where the primary insurer engages in riskier businesses). Cf. Gonye, Underwriting the Reinsured, in Reinsurance 439, 463-466 (R. Strain ed. 1980); 2 R. Reinarz, J. Schloss, G. Patrik, & P. Kensicki, Reinsurance Practices 21-23 (1990) (same). Other allegations in the complaints could be similarly construed. For example, the complaints also allege that the reinsurers "threatened a boycott of North American CGL risks," not just CGL risks containing dissatisfactory terms, App. 26 (Cal. Complaint § 74), id., at 79 (Conn.Complaint § 78); that "the foreign and domestic reinsurer representatives presented their agreed-upon positions that there would be changes in the CGL forms or no reinsurance," id., at 29 (Cal. Complaint § 82), id., at 81-82 (Conn. Complaint § 86); that some of the defendant insurers and reinsurers told "groups of insurance brokers and agents . . . that a reinsurance boycott, and thus loss of income to the agents and brokers who would be unable to find available markets for their customers, would ensue if the [revised] ISO forms were not approved," id., at 29 (Cal. Complaint § 85), id., at 82 (Conn. Complaint § 89). </s> Many other allegations in the complaints describe conduct that may amount to a boycott if the plaintiffs can prove certain additional facts. For example, General Re, the largest American reinsurer, is alleged to have "agreed to either coerce ISO to adopt [the defendants'] demands or, failing that, `derail' the entire CGL forms program." Id., at 24 (Cal. Complaint 64), id., at 77 (Conn. Complaint § 68). If this means that General Re intended to withhold all reinsurance on all CGL forms - even forms having no objectionable terms - that might amount to a "boycott." Also, General Re and several other domestic reinsurers are alleged to [509 U.S. 764, 13] have "agreed to boycott the 1984 ISO forms unless a retroactive date was added to the claims-made form, and a pollution exclusion and a defense cost cap were added to both [the occurrence and claims-made] forms." Id., at 25 (Cal.Complaint § 66), id., at 78 (Conn. Complaint § 70). Liberally construed, this allegation may mean that the defendants had linked their demands so that they would continue to refuse to do business on either form until both were changed to their liking. Again, that might amount to a boycott. "[A] complaint should not be dismissed unless `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246 (1980) (quoting Conley v. Gibson, 355 U.S. 41, 45 -46 (1957)). Under that standard, these allegations are sufficient to sustain the First, Second, Third, and Fourth Claims for Relief in the California Complaint and the First and Second Claims for Relief in the Connecticut Complaint. 7 </s> II </s> Petitioners in No. 91-1128, various British corporations and other British subjects, argue that certain of the claims against them constitute an inappropriate extraterritorial application of the Sherman Act. 8 It is important to distinguish two distinct questions raised by this petition: whether the District Court had jurisdiction, and whether the Sherman Act reaches the extraterritorial conduct alleged here. On the first question, I believe that the District Court had subject matter jurisdiction over the Sherman Act [509 U.S. 764, 14] claims against all the defendants (personal jurisdiction is not contested). Respondents asserted nonfrivolous claims under the Sherman Act, and 28 U.S.C. 1331 vests district courts with subject matter jurisdiction over cases "arising under" federal statutes. As precedents such as Lauritzen v. Larsen, 345 U.S. 571 (1953), make clear, that is sufficient to establish the District Court's jurisdiction over these claims. Lauritzen involved a Jones Act claim brought by a foreign sailor against a foreign shipowner. The shipowner contested the District Court's jurisdiction, see id., at 573, apparently on the grounds that the Jones Act did not govern the dispute between the foreign parties to the action. Though ultimately agreeing with the shipowner that the Jones Act did not apply, see discussion infra, at 18, the Court held that the District Court had jurisdiction. </s> "As frequently happens, a contention that there is some barrier to granting plaintiff's claim is cast in terms of an exception to jurisdiction of subject matter. A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact." 345 U.S., at 575 . </s> See also Romero v. International Terminal Operating Co., 358 U.S. 354, 359 (1959). </s> The second question - the extraterritorial reach of the Sherman Act - has nothing to do with the jurisdiction of the courts. It is a question of substantive law turning on whether, in enacting the Sherman Act, Congress asserted regulatory power over the challenged conduct. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (Aramco) ("It is our task to determine whether Congress intended the protections of Title VII to apply to United States citizens employed by American employers outside of the United States"). If a plaintiff fails to prevail on this issue, the court does not dismiss the claim for want of subject matter jurisdiction - want of power to [509 U.S. 764, 15] adjudicate; rather, it decides the claim, ruling on the merits that the plaintiff has failed to state a cause of action under the relevant statute. See Romero, supra, at 384 (holding no claim available under the Jones Act); American Banana Co. v. United Fruit Co., 213 U.S. 347, 359 (1909) (holding that complaint based upon foreign conduct "alleges no case under the [Sherman Act]"). </s> There is, however, a type of "jurisdiction" relevant to determining the extraterritorial reach of a statute; it is known as "legislative jurisdiction," Aramco, supra, at 253; Restatement (First) Conflict of Laws 60 (1934) or "jurisdiction to prescribe," 1 Restatement (Third) of Foreign Relations Law of the United States 235 (1987) (hereinafter Restatement (Third)). This refers to "the authority of a state to make its law applicable to persons or activities," and is quite a separate matter from "jurisdiction to adjudicate," see id., at 231. There is no doubt, of course, that Congress possesses legislative jurisdiction over the acts alleged in this complaint: Congress has broad power under Article I, 8, cl. 3, "[t]o regulate Commerce with foreign Nations," and this Court has repeatedly upheld its power to make laws applicable to persons or activities beyond our territorial boundaries where United States interests are affected. See Ford v. United States, 273 U.S. 593, 621-623 (1927); United States v. Bowman, 260 U.S. 94, 98-99 (1922); American Banana, supra, at 356. But the question in this litigation is whether, and to what extent, Congress has exercised that undoubted legislative jurisdiction in enacting the Sherman Act. </s> Two canons of statutory construction are relevant in this inquiry. The first is the "longstanding principle of American law `that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'" Aramco, supra, at 248 (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). Applying that canon in Aramco, we [509 U.S. 764, 16] held that the version of Title VII of the Civil Rights Act of 1964 then in force, 42 U.S.C. 2000e to 2000e-17 (1988 ed.), did not extend outside the territory of the United States even though the statute contained broad provisions extending its prohibitions to, for example, "`any activity, business, or industry in commerce.'" Id., at 249 (quoting 42 U.S.C. 2000e(h)). We held such "boilerplate language" to be an insufficient indication to override the presumption against extraterritoriality. Id., at 251; see also id., at 251-253. The Sherman Act contains similar "boilerplate language," and if the question were not governed by precedent, it would be worth considering whether that presumption controls the outcome here. We have, however, found the presumption to be overcome with respect to our antitrust laws; it is now well established that the Sherman Act applies extraterritorially. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 582 , n. 6 (1986); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 704 (1962); see also United States v. Aluminum Co. of America, 148 F.2d 416 (CA2 1945). </s> But if the presumption against extraterritoriality has been overcome or is otherwise inapplicable, a second canon of statutory construction becomes relevant: "[A]n act of congress ought never to be construed to violate the law of nations if any other possible construction remains." Murray v. Charming Betsy, 2 Cranch 64, 118 (1804) (Marshall, C.J.). This canon is "wholly independent" of the presumption against extraterritoriality. Aramco, 499 U.S., at 264 . (Marshall, J., dissenting). It is relevant to determining the substantive reach of a statute because "the law of nations," or customary international law, includes limitations on a nation's exercise of its jurisdiction to prescribe. See Restatement (Third) 401-416. Though it clearly has constitutional authority to do so, Congress is generally [509 U.S. 764, 17] presumed not to have exceeded those customary international law limits on jurisdiction to prescribe. </s> Consistent with that presumption, this and other courts have frequently recognized that, even where the presumption against extraterritoriality does not apply, statutes should not be interpreted to regulate foreign persons or conduct if that regulation would conflict with principles of international law. For example, in Romero v. International Terminal Operating Co., 358 U.S. 354 (1959), the plaintiff, a Spanish sailor who had been injured while working aboard a Spanish-flag and Spanish-owned vessel, filed a Jones Act claim against his Spanish employer. The presumption against extraterritorial application of federal statutes was inapplicable to the case, as the actionable tort had occurred in American waters. See id., at 383. The Court nonetheless stated that, "in the absence of a contrary congressional direction," it would apply "principles of choice of law that are consonant with the needs of a general federal maritime law and with due recognition of our self-regarding respect for the relevant interests of foreign nations in the regulation of maritime commerce as part of the legitimate concern of the international community." Id., at 382-383. "The controlling considerations" in this choice of law analysis were "the interacting interests of the United States and of foreign countries." Id., at 383. </s> Romero referred to, and followed, the choice-of-law analysis set forth in Lauritzen v. Larsen, 345 U.S. 571 (1953). As previously mentioned, Lauritzen also involved a Jones Act claim brought by a foreign sailor against a foreign employer. The Lauritzen Court recognized the basic problem: "If [the Jones Act were] read literally, Congress has conferred an American right of action which requires nothing more than that plaintiff be `any seaman who shall suffer personal injury in the course of his employment.'" Id., at 576. The solution it adopted was to construe the statute "to apply only to areas and transactions in which American [509 U.S. 764, 18] law would be considered operative under prevalent doctrines of international law." Id., at 577 (emphasis added). To support application of international law to limit the facial breadth of the statute, the Court relied upon of course - Chief Justice Marshall's statement in Charming Betsy Schooner quoted supra, at 16. It then set forth "several factors which, alone or in combination, are generally conceded to influence choice of law to govern a tort claim." 345 U.S., at 583 ; see id., at 583-593 (discussing factors). See also McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 -22 (1963) (applying Charming Betsy Schooner principle to restrict application of National Labor Relations Act to foreign-flag vessels). </s> Lauritzen, Romero, and McCulloch were maritime cases, but we have recognized the principle that the scope of generally worded statutes must be construed in light of international law in other areas as well. See, e.g., Sale v. Haitian Centers Council, Inc., ante, at 178, n. 35 (1993); Weinberger v. Rossi, 456 U.S. 25, 32 (1982). More specifically, the principle was expressed in United States v. Aluminum Co. of America, 148 F.2d 416 (CA2 1945), the decision that established the extraterritorial reach of the Sherman Act. In his opinion for the court, Judge Learned Hand cautioned, "we are not to read general words, such as those in [the Sherman] Act, without regard to the limitations customarily observed by nations upon the exercise of their powers; limitations which generally correspond to those fixed by the `Conflict of Laws.'" Id., at 443. </s> More recent lower court precedent has also tempered the extraterritorial application of the Sherman Act with considerations of "international comity." See Timberlane Lumber Co. v. Bank of America, N.T. & S.A., 549 F.2d 597, 608-615 (CA9 1976); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1294-1298 (CA3 1979); Montreal Trading Ltd. v. Amax Inc., 661 F.2d 864, 869-871 (CA10 1981); Laker Airways Limited v. Sabena, Belgian World Airlines, 235 U.S. [509 U.S. 764, 19] App. D.C. 207, 236, and n. 109, 731 F.2d 909, 938, and n. 109 (1984); see also Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 131 U.S. App. D.C. 226, 236, and n. 31, 404 F.2d 804, 814, and n. 31 (1968). The "comity" they refer to is not the comity of courts, whereby judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere, but rather what might be termed "prescriptive comity": the respect sovereign nations afford each other by limiting the reach of their laws. That comity is exercised by legislatures when they enact laws, and courts assume it has been exercised when they come to interpreting the scope of laws their legislatures have enacted. It is a traditional component of choice of law theory. See J. Story, Commentaries on the Conflict of Laws 38 (1834) (distinguishing between the "comity of the courts" and the "comity of nations," and defining the latter as "the true foundation and extent of the obligation of the laws of one nation within the territories of another"). Comity in this sense includes the choice of law principles that, "in the absence of contrary congressional direction," are assumed to be incorporated into our substantive laws having extraterritorial reach. Romero, supra, at 382-383; see also Lauritzen, supra, at 578-579; Hilton v. Guyot, 159 U.S. 113, 162-166 (1895). Considering comity in this way is just part of determining whether the Sherman Act prohibits the conduct at issue. 9 </s> [509 U.S. 764, 20] </s> In sum, the practice of using international law to limit the extraterritorial reach of statutes is firmly established in our jurisprudence. In proceeding to apply that practice to the present cases, I shall rely on the Restatement (Third) of for the relevant principles of international law. Its standards appear fairly supported in the decisions of this Court construing international choice-of-law principles (Lauritzen, Romero, and McCulloch) and in the decisions of other federal courts, especially Timberlane. Whether the Restatement precisely reflects international law in every detail matters little here, as I believe this case would be resolved the same way under virtually any conceivable test that takes account of foreign regulatory interests. </s> Under the Restatement, a nation having some "basis" for jurisdiction to prescribe law should nonetheless refrain from exercising that jurisdiction "with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable." Restatement (Third) 403(1). The "reasonableness" inquiry turns on a number of factors including, but not limited to: "the extent to which the activity takes place within the territory [of the regulating state]," id. 403(2)(a); "the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated," id. 403(2)(b); "the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted," id. 403(2)(c); "the extent to which another state may have an interest in regulating the activity," id. 403(2)(g); and "the likelihood of conflict with regulation by another state," id. 403(2)(h). Rarely would these factors point more clearly against application of United States law. The activity relevant to the counts at issue here took place primarily in the [509 U.S. 764, 21] United Kingdom, and the defendants in these counts are British corporations and British subjects having their principal place of business or residence outside the United States. 10 Great Britain has established a comprehensive regulatory scheme governing the London reinsurance markets, and clearly has a heavy "interest in regulating the activity," id. 403(2)(g). See 938 F.2d, at 932-933; In re Insurance Antitrust Litigation, 723 F.Supp. 464, 487-488 (ND Cal. 1989); see also J. Butler & R. Merkin, Reinsurance Law A.1.1-02 (1992). Finally, 2(b) of the McCarran-Ferguson Act allows state regulatory statutes to override the Sherman Act in the insurance field, subject only to the narrow "boycott" exception set forth in 3(b) suggesting that "the importance of regulation to the [United States]," Restatement (Third) 403(2)(c), is slight. Considering these factors, I think it unimaginable that an assertion of legislative jurisdiction by the United States would be considered reasonable, and therefore it is inappropriate to assume, in the absence of statutory indication to the contrary, that Congress has made such an assertion. </s> It is evident from what I have said that the Court's comity analysis, which proceeds as though the issue is whether the courts should "decline to exercise . . . jurisdiction," ante, at 31, rather than whether the Sherman Act covers this conduct, is simply misdirected. I do not at all agree, moreover, with the Court's conclusion that the issue of the substantive scope of the Sherman Act is not in the cases. See ante, at 29, n. 22; ante, at 30, n. 24. To be sure, the parties did not make a clear distinction between adjudicative jurisdiction and the scope of the statute. Parties often do not, [509 U.S. 764, 22] as we have observed (and have declined to punish with procedural default) before. See the excerpt from Lauritzen quoted supra, at 14; see also Romero, 358 U.S., at 359 . It is not realistic, and also not helpful, to pretend that the only really relevant issue in this litigation is not before us. In any event, if one erroneously chooses, as the Court does, to make adjudicative jurisdiction (or, more precisely, abstention) the vehicle for taking account of the needs of prescriptive comity, the Court still gets it wrong. It concludes that no "true conflict" counseling nonapplication of United States law (or rather, as it thinks, United States judicial jurisdiction) exists unless compliance with United States law would constitute a violation of another country's law. Ante, at 31-32. That breathtakingly broad proposition, which contradicts the many cases discussed earlier, will bring the Sherman Act and other laws into sharp and unnecessary conflict with the legitimate interests of other countries - particularly our closest trading partners. </s> In the sense in which the term "conflic[t]" was used in Lauritzen, 345, U.S. at 582, 592, and is generally understood in the field of conflicts of laws, there is clearly a conflict in this litigation. The petitioners here, like the defendant in Lauritzen, were not compelled by any foreign law to take their allegedly wrongful actions, but that no more precludes a conflict of laws analysis here than it did there. See id., at 575-576 (detailing the differences between foreign and United States law). Where applicable foreign and domestic law provide different substantive rules of decision to govern the parties' dispute, a conflict of laws analysis is necessary. See generally R. Weintraub, Commentary on Conflict of Laws 2-3 (1980); Restatement (First) of Conflict of Laws 1, Comment c and Illustrations (1934). </s> Literally the only support that the Court adduces for its position is 403 of the Restatement (Third) - or, more precisely, Comment e to that provision, which states: [509 U.S. 764, 23] </s> "Subsection (3) [which says that a State should defer to another State if that state's interest is clearly greater] applies only when one state requires what another prohibits, or where compliance with the regulations of two states exercising jurisdiction consistently with this section is otherwise impossible. It does not apply where a person subject to regulation by two states can comply with the laws of both. . . ." </s> The Court has completely misinterpreted this provision. Subsection (3) of 403 (requiring one State to defer to another in the limited circumstances just described) comes into play only after subsection (1) of 403 has been complied with - i.e., after it has been determined that the exercise of jurisdiction by both of the two States is not "unreasonable." That prior question is answered by applying the factors (inter alia) set forth in subsection (2) of 403, that is, precisely the factors that I have discussed in text and that the Court rejects. 11 </s> * * * * </s> I would reverse the judgment of the Court of Appeals on this issue, and remand to the District Court with instructions to dismiss for failure to state a claim on the three counts at issue in No. 91-1128. </s> [Footnote * Justice O'connor, Justice Kennedy, and Justice Thomas join this opinion in its entirety, and The Chief Justice joins Part I of this opinion. </s> [Footnote 1 Section 3(b) of the McCarran-Ferguson Act, 15 U.S.C. 1013(b), provides: </s> "Nothing contained in this Act shall render the said Sherman Act [509 U.S. 764, 3] inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." </s> [Footnote 2 Under the Oxford English Dictionary definition, of course, this example would not be a "boycott," because the tenants had not suspended all relations with the Captain. But if one recognizes partial boycotts (as we and JUSTICE SOUTER do), and if one believes (as JUSTICE SOUTER does but we do not) that the purpose of a boycott can be to secure different terms in the very transaction that is the supposed subject of the boycott, then it is impossible to explain why this is not a boycott. Under JUSTICE SOUTER's reasoning, it would be a boycott, at least if the tenants acted "at the behest of" (whatever that means), ante, at 25, the Irish Land League. This hypothetical shows that the problems presented by partial boycotts (which we agree fall within 3(b)) make more urgent the need to distinguish boycotts from concerted agreements on terms. </s> [Footnote 3 JUSTICE SOUTER points out that the Court in St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531 (1978), found the term boycott "does not refer to `"a unitary phenomenon,"'" ante, at 20 (quoting Barry, supra,, at 543 (quoting P. Areeda, Antitrust Analysis 381 (2d ed. 1974))), and asserts that our position contradicts this. Ante, at 26-27. But to be not a "unitary phenomenon" is different from being an all-encompassing one. "Boycott" is a multifaceted "phenomenon" that includes conditional boycotts, punitive boycotts, coercive boycotts, partial boycotts, labor [509 U.S. 764, 6] boycotts, political boycotts, social boycotts, etc. It merely does not include refusals to deal because of objections to proposed terms. </s> [Footnote 4 See United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 295 -296, 298 (1945) (refusal to engage in all transactions with targeted companies unless they agreed to defendants' price-fixing scheme); United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 535 , 536, 562 (1944) (discussed infra, at 10-11); United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 722 (1944) (word used in reference to a refusal to deal as means of enforcing resale price maintenance); Fashion Originators' Guild of America, Inc. v. FTC, 312 U.S. 457, 461 , 465, 467 (1941) (boycott of retailers who sold competitors' products); United States v. American Livestock Commission Co., 279 U.S. 435, 436-438 (1929) (absolute boycott of a competing livestock association, intended to drive it out of business); Eastern States Lumber Dealer's Assn. v. United States, 234 U.S. 600, 610-611 (1914) (discussed supra, at 4-5); Nash v. United States, 229 U.S. 373, 376 (1913) (word used in passing). </s> [Footnote 5 See, e.g., Bedford Cut Stone Co. v. Stone Cutters, 274 U.S. 37, 47, 49 (1927) (refusal to work on stone received from nonunion quarries); Duplex Printing Press Co. v. Deering, 254 U.S. 443, 462-463 (1921) (boycott of target's product until it agreed to union's employment demands); Gompers v. Bucks Stove Range Co., 221 U.S. 418 (1911) (boycott of company's products because of allegedly unfair labor practices); Loewe v. Lawlor, 208 U.S. 274 (1908) (boycott of fur hats made by a company that would not allow its workers to be unionized). See also Apex Hosiery Co. v. Leader, 310 U.S. 469, 503 -505 (1940) (distinguishing between ordinary strikes and boycotts). </s> [Footnote 6 Once it is determined that the actions of the reinsurers did not constitute a "boycott," but rather a concerted agreement to terms, it follows that their actions do not constitute "coercion" or "intimidation" within the meaning of the statute. That is because, as previously mentioned, such concerted agreements do "not coerc[e] anyone, at least in the usual sense of that word," L. Sullivan, Law of Antitrust 257 (1977), and because they are precisely what is protected by McCarran-Ferguson immunity. </s> [Footnote 7 We agree with JUSTICE SOUTER's conclusion, ante, at 23-24, n. 18, that the Seventh Claim for Relief in the California Complaint and the Sixth Claim for Relief in the Connecticut Complaint fail to allege any 3(b) boycotts. </s> [Footnote 8 The counts at issue in this litigation are the Fifth, Sixth, and Eighth Claims for Relief in the California Complaint. See App. 43-46 (§§ 131-140), id., at 479 (§§ 146-150). </s> [Footnote 9 Some antitrust courts, including the Court of Appeals in the present cases, have mistaken the comity at issue for the "comity of courts," which has led them to characterize the question presented as one of "abstention," that is, whether they should "exercise or decline jurisdiction." Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1294, 1296 (CA3 1979); see also In re Insurance Antitrust Litigation, 938 F.2d 919, 932 (CA9 1991). As I shall discuss, that seems to be the error the Court has fallen into today. Because courts are generally reluctant to refuse the exercise of conferred jurisdiction, confusion on this seemingly theoretical point can have the very practical consequence of greatly expanding the extraterritorial reach of the Sherman Act. </s> [Footnote 10 Some of the British corporations are subsidiaries of American corporations, and the Court of Appeals held that "[t]he interests of Britain are at least diminished where the parties are subsidiaries of American corporations." Id., at 933. In effect, the Court of Appeals pierced the corporate veil in weighing the interests at stake. I do not think that was proper. </s> [Footnote 11 The Court skips directly to subsection (3) of 403, apparently on the authority of Comment j to 415 of the Restatement (Third). See ante, at 32. But the preceding commentary to 415 makes clear that "[a]ny exercise of [legislative] jurisdiction under this section is subject to the requirement of reasonableness" set forth in 403(2). Restatement (Third) 415, Comment a. Comment j refers back to the conflict analysis set forth in 403(3), which, as noted above, comes after the reasonableness analysis of 403(2). </s> [509 U.S. 764, 1]

United States Supreme Court LAURO LINES S.R.L. v. CHASSER(1989) No. 88-23 Argued: April 17, 1989Decided: May 22, 1989 </s> Respondents - passengers and representatives of the estates of passengers on a cruise ship hijacked by terrorists - filed suit in the District Court against petitioner, the ship's owner, to recover damages for personal injuries and for the wrongful death of one passenger. Before trial, petitioner moved to dismiss the actions, citing the forum-selection clause printed on each passenger ticket, which purported to obligate passengers to institute any suit in connection with the contract in Italy and to renounce the right to sue elsewhere. The District Court denied the motions, holding that the ticket did not give passengers reasonable notice that they were waiving the opportunity to sue in a domestic forum. The Court of Appeals dismissed petitioner's appeal on the ground that the District Court's dismissal orders were interlocutory and not appealable under 28 U.S.C. 1291, holding that the orders did not fall within the exception to the rule of nonappealability carved out by the collateral order doctrine. </s> Held: </s> An interlocutory order denying a defendant's motion to dismiss a damages action on the basis of a contractual forum-selection clause is not immediately appealable under 1291. Such an order is not final in the usual sense, for it does not end the litigation on the merits but, on the contrary, ensures that the litigation will continue. Nor does the order fall within the narrow exception to the normal application of the final judgment rule known as the collateral order doctrine, for the order is not effectively unreviewable on appeal from final judgment. The right to be sued only in a particular forum, as compared to the right to avoid suit altogether, although not perfectly secured by an appeal after final judgment, is sufficiently vindicable at that stage and is not essentially destroyed if vindication is postponed until trial is completed. Moreover, the costs associated with unnecessary litigation, should it eventually be decided that the District Court erred in trying the case, do not warrant allowing an immediate appeal of a pretrial order. That there may be a policy favoring enforcement of foreign forum-selection clauses goes to the merits of petitioner's claim that its ticket agreement requires that suit be filed in Italy and that the agreement should be enforced by the federal courts, but does not affect the appealability of a prejudgment [490 U.S. 495, 496] order, which turns on the contours of the right asserted, not on the likelihood of eventual success on the merits. Pp. 497-501. </s> 844 F.2d 50, affirmed. </s> BRENNAN, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, post, p. 502. </s> Raymond A. Connell argued the cause for petitioner. With him on the briefs were John R. Geraghty and LeRoy Lambert. Daniel J. Dougherty filed a brief for Chandris, Inc., respondent under this Court's Rule 19.6 in support of petitioner. </s> Arnold I. Burns argued the cause for respondents. On the brief were Morris J. Eisen and William P. Larsen, Jr. </s> JUSTICE BRENNAN delivered the opinion of the Court. </s> We granted certiorari to consider whether an interlocutory order of a United States District Court denying a defendant's motion to dismiss a damages action on the basis of a contractual forum-selection clause is immediately appealable under 28 U.S.C. 1291 as a collateral final order. We hold that it is not. </s> I </s> The individual respondents were, or represent the estates of persons who were, passengers aboard the cruise ship Achille Lauro when it was hijacked by terrorists in the Mediterranean in October 1985. Petitioner Lauro Lines s.r.l., an Italian company, owns the Achille Lauro. Respondents filed suits against Lauro Lines in the District Court for the Southern District of New York to recover damages for injuries sustained as a result of the hijacking and for the wrongful death of passenger Leon Klinghoffer. Lauro Lines moved before trial to dismiss the actions, citing the forum-selection clause printed on each passenger ticket. This clause purported to obligate the passenger to institute any suit arising in connection with the contract in Naples, Italy, and to renounce the right to sue elsewhere. [490 U.S. 495, 497] </s> The District Court denied petitioner's motions to dismiss, holding that the ticket as a whole did not give reasonable notice to passengers that they were waiving the opportunity to sue in a domestic forum. Without moving for certification for immediate appeal pursuant to 28 U.S.C. 1292(b), Lauro Lines sought to appeal the District Court's orders. The Court of Appeals for the Second Circuit dismissed petitioner's appeal on the ground that the District Court's orders denying petitioner's motions to dismiss were interlocutory and not appealable under 1291. The court held that the orders did not fall within the exception to the rule of non-appealability carved out for collateral final orders in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). 844 F.2d 50 (1988). We granted certiorari to resolve a disagreement among the Courts of Appeals. 488 U.S. 887 (1988). Compare, e. g., 844 F.2d 50 (1988) (case below); Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 862-863 (CA7) (holding prejudgment denial of motion to dismiss on basis of forum-selection clause not to be immediately appealable under 1291), cert. denied, 469 U.S. 890 (1984), with Hodes v. S. N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 908 (CA3 1988), cert. dism'd, 490 U.S. 1001 (1989); Sterling Forest Associates, Ltd. v. Barnett-Range Corp., 840 F.2d 249, 253 (CA4 1988); Farmland Industries, Inc. v. Frazier-Parrott Commodities, Inc., 806 F.2d 848, 851 (CA8 1986) (holding such denial to be an immediately appealable collateral final order). We now affirm. </s> II </s> Title 28 U.S.C. 1291 provides for appeal to the courts of appeals only from "final decisions of the district courts of the United States." For purposes of 1291, a final judgment is generally regarded as "a decision by the district court that `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Van Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988), quoting Catlin v. United [490 U.S. 495, 498] States, 324 U.S. 229, 233 (1945). An order denying a motion to dismiss a civil action on the ground that a contractual forum-selection clause requires that such suit be brought in another jurisdiction is not a decision on the merits that ends the litigation. On the contrary, such an order "ensures that litigation will continue in the District Court." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988). Section 1291 thus permits an appeal only if an order denying a motion to dismiss based upon a forum-selection clause falls within the "narrow exception to the normal application of the final judgment rule [that] has come to be known as the collateral order doctrine." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989). That exception is for a "small class" of prejudgment orders that "finally determine claims of right separable from, and collateral to, rights asserted in the action, [and that are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, supra, at 546. We have held that to fall within the Cohen exception, an order must satisfy at least three conditions: "It must `conclusively determine the disputed question,' `resolve an important issue completely separate from the merits of the action,' and `be effectively unreviewable on appeal from a final judgment.'" Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (1985), quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). For present purposes, we need not decide whether an order denying a dismissal motion based upon a contractual forum-selection clause conclusively determines a disputed issue, or whether it resolves an important issue that is independent of the merits of the action, for the District Court's orders fail to satisfy the third requirement of the collateral order test. </s> We recently reiterated the "general rule" that an order is "effectively unreviewable" only "where the order at issue [490 U.S. 495, 499] involves `an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.'" Midland Asphalt Corp., supra, at 798, quoting United States v. MacDonald, 435 U.S. 850, 860 (1978). If it is eventually decided that the District Court erred in allowing trial in this case to take place in New York, petitioner will have been put to unnecessary trouble and expense, and the value of its contractual right to an Italian forum will have been diminished. It is always true, however, that "there is value . . . in triumphing before trial, rather than after it," MacDonald, supra, at 860, n. 7, and this Court has declined to find the costs associated with unnecessary litigation to be enough to warrant allowing the immediate appeal of a pretrial order, see Richardson-Merrell Inc., supra, at 436 ("[T]he possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress" in 1291). Instead, we have insisted that the right asserted be one that is essentially destroyed if its vindication must be postponed until trial is completed. </s> We have thus held in cases involving criminal prosecutions that the deprivation of a right not to be tried is effectively unreviewable after final judgment and is immediately appealable. Helstoski v. Meanor, 442 U.S. 500 (1979) (denial of motion to dismiss under the Speech or Debate Clause); Abney v. United States, 431 U.S. 651 (1977) (denial of motion to dismiss on double jeopardy grounds). See Midland Asphalt Corp., supra, at 801 ("A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur") (emphasis added). Similarly, in civil cases, we have held that the denial of a motion to dismiss based upon a claim of absolute immunity from suit is immediately appealable prior to final judgment, Nixon v. Fitzgerald, 457 U.S. 731, 742 -743 (1982), "for the essence of absolute immunity is its [490 U.S. 495, 500] possessor's entitlement not to have to answer for his conduct in a civil damages action," Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). And claims of qualified immunity may be pursued by immediate appeal, because qualified immunity too "is an immunity from suit." Id., at 526 (emphasis in original). </s> On the other hand, we have declined to hold the collateral order doctrine applicable where a district court has denied a claim, not that the defendant has a right not to be sued at all, but that the suit against the defendant is not properly before the particular court because it lacks jurisdiction. In Van Cauwenberghe v. Biard, 486 U.S. 517 (1988), a civil defendant moved for dismissal on the ground that he had been immune from service of process because his presence in the United States had been compelled by extradition to face criminal charges. We noted that, after Mitchell, "[t]he critical question . . . is whether `the essence' of the claimed right is a right not to stand trial," 486 U.S., at 524 , and held that the immunity from service of process defendant asserted did not amount to an immunity from suit - even though service was essential to the trial court's jurisdiction over the defendant. See also Catlin v. United States, 324 U.S., at 236 (order denying motion to dismiss petition for condemnation of land not immediately appealable, "even when the motion is based upon jurisdictional grounds"). </s> Lauro Lines argues here that its contractual forum-selection clause provided it with a right to trial before a tribunal in Italy, and with a concomitant right not to be sued anywhere else. This "right not to be haled for trial before tribunals outside the agreed forum," petitioner claims, cannot effectively be vindicated by appeal after trial in an improper forum. Brief for Petitioner 38-39. There is no obviously correct way to characterize the right embodied in petitioner's forum-selection provision: "all litigants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial." Van Cauwenberghe, supra, [490 U.S. 495, 501] at 524. The right appears most like the right to be free from trial if it is characterized - as by petitioner - as a right not to be sued at all except in a Neapolitan forum. It appears less like a right not to be subjected to suit if characterized - as by the Court of Appeals - as "a right to have the binding adjudication of claims occur in a certain forum." 844 F.2d, at 55. Cf. Van Cauwenberghe, supra, at 526-527. Even assuming that the former characterization is proper, however, petitioner is obviously not entitled under the forum-selection clause of its contract to avoid suit altogether, and an entitlement to avoid suit is different in kind from an entitlement to be sued only in a particular forum. Petitioner's claim that it may be sued only in Naples, while not perfectly secured by appeal after final judgment, is adequately vindicable at that stage - surely as effectively vindicable as a claim that the trial court lacked personal jurisdiction over the defendant - and hence does not fall within the third prong of the collateral order doctrine. </s> Petitioner argues that there is a strong federal policy favoring the enforcement of foreign forum-selection clauses, citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), and that "the essential concomitant of this strong federal policy . . . is the right of immediate appellate review of district court orders denying their enforcement." Brief for Petitioner 40-41. A policy favoring enforcement of forum-selection clauses, however, would go to the merits of petitioner's claim that its ticket agreement requires that any suit be filed in Italy and that the agreement should be enforced by the federal courts. Immediate appealability of a prejudgment order denying enforcement, insofar as it depends upon satisfaction of the third prong of the collateral order test, turns on the precise contours of the right asserted, and not upon the likelihood of eventual success on the merits. The Court of Appeals properly dismissed petitioner's appeal, and its judgment is </s> Affirmed. [490 U.S. 495, 502] </s> JUSTICE SCALIA, concurring. </s> I join the opinion of the Court and write separately only to make express what seems to me implicit in its analysis. </s> The reason we say that the right not to be sued elsewhere than in Naples is "adequately vindicable," ante, at 501, by merely reversing any judgment obtained in violation of it is, quite simply, that the law does not deem the right important enough to be vindicated by, as it were, an injunction against its violation obtained through interlocutory appeal. The importance of the right asserted has always been a significant part of our collateral order doctrine. When first formulating that doctrine in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), we said that it permits interlocutory appeal of final determinations of claims that are not only "separable from, and collateral to, rights asserted in the action," but also, we immediately added, "too important to be denied review." Id., at 546 (emphasis added). Our later cases have retained that significant requirement. For example, in Abney v. United States, 431 U.S. 651 (1977), we said that in order to qualify for immediate appeal the order must involve "an important right which would be `lost, probably irreparably,' if review had to await final judgment." Id., at 658 (emphasis added), quoting Cohen, supra, at 546. And in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), we said that the order must "resolve an important issue completely separate from the merits of the action." Id., at 468 (emphasis added). See also Van Cauwenberghe v. Biard, 486 U.S. 517, 522 -527 (1988); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 -277 (1988); Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (1985); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 12 (1983); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982). </s> While it is true, therefore, that the "right not to be sued elsewhere than in Naples" is not fully vindicated - indeed, to be utterly frank, is positively destroyed - by permitting [490 U.S. 495, 503] the trial to occur and reversing its outcome, that is vindication enough because the right is not sufficiently important to overcome the policies militating against interlocutory appeals. We have made that judgment when the right not to be tried in a particular court has been created through jurisdictional limitations established by Congress or by international treaty, see Van Cauwenberghe, supra. The same judgment applies - if anything, a fortiori - when the right has been created by private agreement. </s> [490 U.S. 495, 504]

United States Supreme Court UNITED STATES v. GRINNELL CORP.(1966) No. 73 Argued: Decided: June 13, 1966 </s> [Footnote * Together with No. 74, Grinnell Corp. v. United States, No. 75, American District Telegraph Co. v. United States, No. 76, Holmes Electric Protective Co. v. United States and No. 77, Automatic Fire Alarm Co. of Delaware v. United States, also on appeal from the same court. </s> The Government brought a civil action against Grinnell Corporation and three affiliated companies, which it controlled through preponderant stock ownership, alleging violations of 1 and 2 of the Sherman Act. Grinnell manufactures plumbing supplies and fire sprinkler systems and its affiliates supply subscribers with fire and burglar alarm services from central stations through automatic alarm systems installed on subscribers' premises. The affiliates, which had participated in market allocation agreements, discriminatory price manipulation to forestall competition, and the acquisition of competitors, had acquired 87% of the country's insurance-company-accredited central station protective service market. One affiliated company, American District Telegraph Co. (ADT), itself controls 73% of the national market. The District Court treated the accredited central station service business as a single "market" and held that the geographic market is national. It found that the four companies had violated 1 and 2 of the Sherman Act and entered a decree enjoining them from restraining trade or monopolizing the market, ordering the filing of price information, enjoining them from acquiring any other enterprise in that market, requiring divestiture by Grinnell of its affiliates, and enjoining them from employing the president of Grinnell. All parties challenged the decree. Held: </s> 1. The existence of monopoly power may be inferred from the predominant share of the market, and where Grinnell and its affiliates have 87% of the accredited central station service business there is no doubt they have monopoly power, which they achieved in part by unlawful and exclusionary practices. Pp. 570-571, 576. [384 U.S. 563, 564] </s> 2. The District Court was justified in treating the accredited central station service business as a single market. Pp. 571-575. </s> (a) There is no barrier to combining in a single market a number of different products or services where the combination reflects commercial realities. Here there is a single basic service, the protection of property through use of a central station, that must be compared with all other forms of property protection. P. 572. </s> (b) Just as under 7 of the Clayton Act's "line of commerce," a "cluster of services" marks the appropriate market for "part" of commerce within the meaning of 2 of the Sherman Act. Pp. 572-573. </s> (c) Accredited, as distinguished from nonaccredited central station service, is a relevant part of commerce, with specific requirements, recognition and approval by insurance companies, and distinct customer needs and demands. P. 575. </s> 3. The geographic market for the accredited central station service, as the District Court found, is a national one. While the main activities of an individual central station may be local, the business of providing such service is operated on a national level, with national planning and agreements covering activities in many States. Pp. 575-576. </s> 4. Adequate relief in a monopolization case should terminate the combination and eliminate the illegal conduct, and render impotent the monopoly power found to be in violation of the Act. Schine Theatres v. United States, 334 U.S. 110, 128 -129. Pp. 577-580. </s> (a) The mere dissolution of the combination by Grinnell's divestiture of its affiliates will not reach the root of the evil; there must be some divestiture on the part of ADT, with 73% of the market, to be determined by the District Court. Pp. 577-578. </s> (b) On the record it appears that ADT's requirements of five-year contracts and retention of title to equipment installed on subscribers' premises constitute substantial barriers to competition and relief against them by the District Court is appropriate. P. 578. </s> (c) A provision that the companies be required to sell devices manufactured by them for use in furnishing central station service is inadequate unless purchasers are assured of replacement parts to maintain those systems. P. 579. [384 U.S. 563, 565] </s> (d) The District Court should reconsider its denial of the Government's request for "visitation rights," that is, requiring reports, examining documents and interviewing company personnel, relief commonly granted to determine compliance with an antitrust decree. P. 579. </s> (e) While the barring of Grinnell's president from employment might have been appropriate in a case where predatory conduct was conspicuous, such is not the situation here. P. 579. </s> (f) On remand the general terms of the restraining order should be recast so that the precise practices in violation of the Act are specifically enjoined. Pp. 579-580. </s> (g) The dissolution of the combination and the proscription against acquiring firms in the accredited central station business are fully warranted. P. 580. </s> 5. The claim of bias and prejudice against the District Judge who tried the case below is not made out. Pp. 580-583. </s> 236 F. Supp. 244, affirmed and remanded. </s> Daniel M. Friedman argued the cause for the United States in all cases. With him on the brief were Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Gerald Kadish and Noel E. Story. </s> John F. Sonnett argued the cause for appellant in No. 74 and for appellees in No. 73. With him on the briefs for Grinnell Corp. were Denis G. McInerney, Roger T. Clapp, Harold F. Reindel, Jerrold G. Van Cise and Robert F. Martin. </s> Macdonald Flinn argued the cause for appellant in No. 75 and for appellees in No. 73. With him on the briefs for American District Telegraph Co. were Robert O. Donnelly and Thomas B. Leary. </s> John W. Drye, Jr., argued the cause for appellant in No. 76 and for appellees in No. 73. With him on the briefs for Holmes Electric Protective Co. were Francis S. Bensel and Bud G. Holman. [384 U.S. 563, 566] </s> J. Francis Hayden argued the cause for appellant in No. 77 and for appellees in No. 73. Mr. Hayden also filed a brief for Automatic Fire Alarm Co. of Delaware. </s> MR. JUSTICE DOUGLAS delivered the opinion of the Court. </s> This case presents an important question under 2 of the Sherman Act, 1 which makes it an offense for any person to "monopolize . . . any part of the trade or commerce among the several States." This is a civil suit brought by the United States against Grinnell Corporation (Grinnell), American District Telegraph Co. (ADT), Holmes Electric Protective Co. (Holmes) and Automatic Fire Alarm Co. of Delaware (AFA). The District Court held for the Government and entered a decree. All parties appeal, 2 the United States because it deems the relief inadequate and the defendants both on the merits and on the relief and on the ground that the District Court denied them a fair trial. We noted probable jurisdiction. 381 U.S. 910 . </s> Grinnell manufactures plumbing supplies and fire sprinkler systems. It also owns 76% of the stock of ADT, 89% of the stock of AFA, and 100% of the stock of Holmes. 3 ADT provides both burglary and fire protection services; Holmes provides burglary services alone; AFA supplies only fire protection service. Each offers a central station service under which hazard-detecting devices installed on the protected premises automatically [384 U.S. 563, 567] transmit an electric signal to a central station. 4 The central station is manned 24 hours a day. Upon receipt of a signal, the central station, where appropriate, dispatches guards to the protected premises and notifies the police or fire department direct. There are other forms of protective services. But the record shows that subscribers to accredited central station service (i. e., that approved by the insurance underwriters) receive reductions in their insurance premiums that are substantially greater than the reduction received by the users of other kinds of protection service. In 1961 accredited companies in the central station service business grossed $65,000,000. ADT, Holmes, and AFA are the three largest companies in the business in terms of revenue: ADT (with 121 central stations in 115 cities) has 73% of the business; Holmes (with 12 central stations in three large cities) has 12.5%; AFA (with three central stations in three large cities) has 2%. Thus the three companies that Grinnell controls have over 87% of the business. </s> Over the years ADT purchased the stock or assets of 27 companies engaged in the business of providing burglar or fire alarm services. Holmes acquired the stock or assets of three burglar alarm companies in New York City using a central station. Of these 30, the officials [384 U.S. 563, 568] of seven agreed not to engage in the protective service business in the area for periods ranging from five years to permanently. After Grinnell acquired control of the other defendants, the latter continued in their attempts to acquire central station companies - offers being made to at least eight companies between the years 1955 and 1961, including four of the five largest nondefendant companies in the business. When the present suit was filed, each of those defendants had outstanding an offer to purchase one of the four largest nondefendant companies. </s> In 1906, prior to the affiliation of ADT and Holmes, they made a written agreement whereby ADT transferred to Holmes its burglar alarm business in a major part of the Middle Atlantic States and agreed to refrain forever from engaging in that business in that area, while Holmes transferred to ADT its watch signal business and agreed to limit its activities to burglar alarm service and night watch service for financial institutions. While this agreement was modified several times and terminated in 1947, in 1961 Holmes still restricted its business to burglar alarm service and operated only in those areas which had been allocated to it under the 1906 agreement. Similarly, ADT continued to refrain from supplying burglar alarm service in those areas earlier allocated to Holmes. </s> In 1907 Grinnell entered into a series of agreements with the other defendant companies and with Automatic Fire Protection Co. to the following effect: </s> AFA received the exclusive right to provide central station sprinkler supervisory and waterflow alarm and automatic fire alarm service in New York City, Boston and Philadelphia, and agreed not to provide burglar alarm service in those cities or central station service elsewhere in the United States. [384 U.S. 563, 569] </s> Automatic Fire Protection Co. obtained the exclusive right to provide central station sprinkler supervisory and waterflow alarm service everywhere else in the United States except for the three cities in which AFA received that exclusive right, and agreed not to engage in burglar alarm service. </s> ADT received the exclusive right to render burglar alarm and nightwatch service throughout the United States. (Under ADT's 1906 agreement with Holmes, however, it could not provide burglar alarm services in the areas for which it had given Holmes the exclusive right to do so.) It agreed not to furnish sprinkler supervisory and waterflow alarm service anywhere in the country and not to furnish automatic fire alarm service in New York City, Boston or Philadelphia (the three cities allocated to AFA). ADT agreed to connect to its central stations the systems installed by AFA and Automatic. </s> Grinnell agreed to furnish and install all sprinkler supervisory and waterflow alarm actuating devices used in systems that AFA and Automatic would install, and otherwise not to engage in the central station protection business. </s> AFA and Automatic received 25% of the revenue produced by the sprinkler supervisory waterflow alarm service which they provided in their respective territories; ADT and Grinnell received 50% and 25%, respectively, of the revenue which resulted from such service. The agreements were to continue until February 1954. </s> The agreements remained substantially unchanged until 1949 when ADT purchased all of Automatic Fire Protection Co.'s rights under it for $13,500,000. After these 1907 agreements expired in 1954, AFA continued to honor the prior division of territories; and ADT and AFA entered into a new contract providing for the continued sharing of revenues on substantially the same [384 U.S. 563, 570] basis as before. 5 In 1954 Grinnell and ADT renewed an agreement with a Rhode Island company which received the exclusive right to render central station service within Rhode Island at prices no lower than those of ADT and which agreed to use certain equipment supplied by Grinnell and ADT and to share its revenues with those companies. ADT had an informal agreement with a competing central station company in Washington, D.C., "that we would not solicit each other's accounts." </s> ADT over the years reduced its minimum basic rates to meet competition and renewed contracts at substantially increased rates in cities where it had a monopoly of accredited central station service. ADT threatened retaliation against firms that contemplated inaugurating central station service. And the record indicates that, in contemplating opening a new central station, ADT officials frequently stressed that such action would deter their competitors from opening a new station in that area. </s> The District Court found that the defendant companies had committed per se violations of 1 of the Sherman Act as well as 2 and entered a decree. 236 F. Supp. 244. </s> I. </s> The offense of monopoly under 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition [384 U.S. 563, 571] or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. We shall see that this second ingredient presents no major problem here, as what was done in building the empire was done plainly and explicitly for a single purpose. In United States v. du Pont & Co., 351 U.S. 377, 391 , we defined monopoly power as "the power to control prices or exclude competition." The existence of such power ordinarily may be inferred from the predominant share of the market. In American Tobacco Co. v. United States, 328 U.S. 781, 797 , we said that "over two-thirds of the entire domestic field of cigarettes, and . . . over 80% of the field of comparable cigarettes" constituted "a substantial monopoly." In United States v. Aluminum Co. of America, 148 F.2d 416, 429, 90% of the market constituted monopoly power. In the present case, 87% of the accredited central station service business leaves no doubt that the congeries of these defendants have monopoly power - power which, as our discussion of the record indicates, they did not hesitate to wield - if that business is the relevant market. The only remaining question therefore is, what is the relevant market? </s> In case of a product it may be of such a character that substitute products must also be considered, as customers may turn to them if there is a slight increase in the price of the main product. That is the teaching of the du Pont case (supra, at 395, 404), viz., that commodities reasonably interchangeable make up that "part" of trade or commerce which 2 protects against monopoly power. </s> The District Court treated the entire accredited central station service business as a single market and we think it was justified in so doing. Defendants argue that the different central station services offered are so diverse that they cannot under du Pont be lumped together to [384 U.S. 563, 572] make up the relevant market. For example, burglar alarm services are not interchangeable with fire alarm services. They further urge that du Pont requires that protective services other than those of the central station variety be included in the market definition. </s> But there is here a single use, i. e., the protection of property, through a central station that receives signals. It is that service, accredited, that is unique and that competes with all the other forms of property protection. We see no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities. To repeat, there is here a single basic service - the protection of property through use of a central service station - that must be compared with all other forms of property protection. </s> In 2 cases under the Sherman Act, as in 7 cases under the Clayton Act (Brown Shoe Co. v. United States, 370 U.S. 294, 325 ) there may be submarkets that are separate economic entities. We do not pursue that question here. First, we deal with services, not with products; and second, we conclude that the accredited central station is a type of service that makes up a relevant market and that domination or control of it makes out a monopoly of a "part" of trade or commerce within the meaning of 2 of the Sherman Act. The defendants have not made out a case for fragmentizing the types of services into lesser units. </s> Burglar alarm service is in a sense different from fire alarm service; from waterflow alarms; and so on. But it would be unrealistic on this record to break down the market into the various kinds of central station protective services that are available. Central station companies recognize that to compete effectively, they must offer all or nearly all types of service. 6 The different [384 U.S. 563, 573] forms of accredited central station service are provided from a single office and customers utilize different services in combination. We held in United States v. Philadelphia Nat. Bank, 374 U.S. 321, 356 , that "the cluster" of services denoted by the term "commercial banking" is "a distinct line of commerce." There is, in our view, a comparable cluster of services here. That bank case arose under 7 of the Clayton Act where the question was whether the effect of a merger "in any line of commerce" may be "substantially to lessen competition." We see no reason to differentiate between "line" of commerce in the context of the Clayton Act and "part" of commerce for purposes of the Sherman Act. See United States v. First Nat. Bank & Trust Co., 376 U.S. 665, 667 -668. In the 7 national bank case just mentioned, services, not products in the mercantile sense, were involved. In our view the lumping together of various kinds of services makes for the appropriate market here as it did in the 7 case. </s> There are, to be sure, substitutes for the accredited central station service. But none of them appears to operate on the same level as the central station service so as to meet the interchangeability test of the du Pont case. Nonautomatic and automatic local alarm systems appear on this record to have marked differences, not the low degree of differentiation required of substitute services as well as substitute articles. [384 U.S. 563, 574] </s> Watchman service is far more costly and less reliable. Systems that set off an audible alarm at the site of a fire or burglary are cheaper but often less reliable. They may be inoperable without anyone's knowing it. Moreover, there is a risk that the local ringing of an alarm will not attract the needed attention and help. Proprietary systems that a customer purchases and operates are available; but they can be used only by a very large business or by government and are not realistic alternatives for most concerns. There are also protective services connected directly to a municipal police or fire department. But most cities with an accredited central station do not permit direct, connected service for private businesses. These alternate services and devices differ, we are told, in utility, efficiency, reliability, responsiveness, and continuity, and the record sustains that position. And, as noted, insurance companies generally allow a greater reduction in premiums for accredited central station service than for other types of protection. </s> Defendants earnestly urge that despite these differences, they face competition from these other modes of protection. They seem to us seriously to overstate the degree of competition, but we recognize that (as the District Court found) they "do not have unfettered power to control the price of their services . . . due to the fringe competition of other alarm or watchmen services." 236 F. Supp., at 254. What defendants overlook is that the high degree of differentiation between central station protection and the other forms means that for many customers, only central station protection will do. Though some customers may be willing to accept higher insurance rates in favor of cheaper forms of protection, others will not be willing or able to risk serious interruption to their businesses, even though covered by insurance, and will thus be unwilling to consider anything but central station protection. [384 U.S. 563, 575] </s> The accredited, as distinguished from nonaccredited service, is a relevant part of commerce. Virtually the only central station companies in the status of the nonaccredited are those that have not yet been able to meet the standards of the rating bureau. The accredited ones are indeed those that have achieved, in the eyes of under-writers, superiorities that other central stations do not have. The accredited central station is located in a building of approved design, provided with an emergency lighting system and two alternate main power sources, manned constantly by at least a required minimum of operators, provided with a direct line to fire headquarters and, where possible, a direct line to a police station; and equipped with all the devices, circuits and equipment meeting the requirements of the underwriters. These standards are important as insurance carriers often require accredited central station service as a condition to writing insurance. There is indeed evidence that customers consider the unaccredited service as inferior. </s> We also agree with the District Court that the geographic market for the accredited central station service is national. The activities of an individual station are in a sense local as it serves, ordinarily, only that area which is within a radius of 25 miles. But the record amply supports the conclusion that the business of providing such a service is operated on a national level. There is national planning. The agreements we have discussed covered activities in many States. The inspection, certification and rate-making is largely by national insurers. The appellant ADT has a national schedule of prices, rates, and terms, though the rates may be varied to meet local conditions. It deals with multistate businesses on the basis of nationwide contracts. The manufacturing business of ADT is interstate. The fact that Holmes is more nearly local than the others does not [384 U.S. 563, 576] save it, for it is part and parcel of the combine presided over and controlled by Grinnell. </s> As the District Court found, the relevant market for determining whether the defendants have monopoly power is not the several local areas which the individual stations serve, but the broader national market that reflects the reality of the way in which they built and conduct their business. </s> We have said enough about the great hold that the defendants have on this market. The percentage is so high as to justify the finding of monopoly. And, as the facts already related indicate, this monopoly was achieved in large part by unlawful and exclusionary practices. The restrictive agreements that pre-empted for each company a segment of the market where it was free of competition of the others were one device. Pricing practices that contained competitors were another. The acquisitions by Grinnell of ADT, AFA, and Holmes were still another. Grinnell long faced a problem of competing with ADT. That was one reason it acquired AFA and Holmes. Prior to settlement of its dispute and controversy with ADT, Grinnell prepared to go into the central station service business. By acquiring ADT in 1953, Grinnell eliminated that alternative. Its control of the three other defendants eliminated any possibility of an outbreak of competition that might have occurred when the 1907 agreements terminated. By those acquisitions it perfected the monopoly power to exclude competitors and fix prices. 7 </s> [384 U.S. 563, 577] </s> II. </s> The final decree enjoins the defendants in general terms from restraining trade or attempting or conspiring to restrain trade in this particular market, from further monopolizing, and attempting or conspiring to monopolize. The court ordered the alarm companies to file with the Department of Justice standard lists of prices and terms and every quotation to customers that deviated from those lists and enjoined the defendants from acquiring stock, assets, or business of any enterprise in the market. Grinnell was ordered to file, not later than April 1, 1966, a plan of divestiture of its stock in each of the other defendant companies. It was given the option either to sell the stock or distribute it to its stockholders or combine or vary those methods. 8 The court further enjoined any of the defendants from employing in any capacity the President and Chairman of the Board of Grinnell, James D. Fleming. Both the Government and the defendants challenge aspects of the decree. </s> We start from the premise that adequate relief in a monopolization case should put an end to the combination and deprive the defendants of any of the benefits of the illegal conduct, and break up or render impotent the monopoly power found to be in violation of the Act. That is the teaching of our cases, notably Schine Theatres v. United States, 334 U.S. 110, 128 -129. </s> We largely agree with the Government's views on the relief aspect of the case. We start with ADT, which presently does 73% of the business done by accredited central stations throughout the country. It is indeed the keystone of the defendants' monopoly power. The mere [384 U.S. 563, 578] dissolution of the combination through the divestiture by Grinnell of its interests in the other companies does not reach the root of the evil. In 92 of the 115 cities in which ADT operates there are no other accredited central stations. Perhaps some cities could not support more than one. Defendants recognized prior to trial that at least 13 cities can; the Government urged divestiture in 48 cities. That there should be some divestiture on the part of ADT seems clear; but the details of such divestiture must be determined by the District Court as the matter cannot be resolved on this record. </s> Two of the means by which ADT acquired and maintained its large share of the market are the requirement that subscribers sign five-year contracts and the retention by ADT of title to the protective services equipment installed on a subscriber's premises. On this record it appears that these practices constitute substantial barriers to competition and that relief against them is appropriate. The pros and cons are argued with considerable vehemence here. 9 Again, we cannot resolve them on this record. The various aspects of this controversy must be explored by the District Court and suitable protective provisions included in the decree that deprive these two devices of the coercive power that they apparently have had towards restraining competition and creating a monopoly. [384 U.S. 563, 579] </s> The Government proposed that the defendants be required to sell, on nondiscriminatory terms, any devices manufactured by them for use in furnishing central station service. It seems clear that if the competitors are to be able to compete effectively for the existing customers of the defendants when the present service contracts expire, they must be assured of replacement parts to maintain those systems. 10 </s> The Government urges visitation rights, that is, requiring reports, examining documents, and interviewing company personnel, a relief commonly granted for the purpose of determining whether a defendant has complied with an antitrust decree. See United States v. United States Gypsum Co., 340 U.S. 76, 95 . The District Court gave no explanation for its refusal to grant this relief. 11 It is so important and customary a provision that the District Court should reconsider it. </s> Defendants urge and the Government concedes that the barring of Mr. Fleming from the employment of any of the defendants is unduly harsh and quite unnecessary on this record. While relief of that kind may be appropriate where the predatory conduct is conspicuous, we cannot see that any such case was made out on this record. </s> The Government objects, as do the defendants, to the broad and generalized terms of the restraining order. They properly point out, as we emphasized in Schine Theatres v. United States, supra, at 125-126, that the precise practices found to have violated the Act should [384 U.S. 563, 580] be specifically enjoined. On remand we suggest that that course be taken. </s> The defendants object to the requirements that Grinnell divest itself of its holdings in the three alarm company defendants, but we think that provision is wholly justified. Dissolution of the combination is essential as indicated by many of our cases, starting with Standard Oil Co. v. United States, 221 U.S. 1, 78 . The defendants object to that portion of the decree that bars them from acquiring interests in firms in the accredited central station business. But since acquisition was one of the methods by which the defendants acquired their market power and was the method by which Grinnell put the combination together, an injunction against the repetition of the practice seems fully warranted. The defendants further object to the requirement in the decree that the alarm company defendants report to the Department of Justice any deviation they make from their list prices. We make no comment on that because in view of the other extensive changes necessary in the decree, the District Court might well deem it to be unnecessary in the fashioning of the new decree. In other words, we leave that matter open, to rest finally in the discretion of the District Court. </s> III. </s> The defendants contend that Judge Wyzanski, who tried the case, was personally biased and prejudiced and should have been disqualified from sitting in the case, and that he denied them a fair trial. We think this point is without merit. </s> The complaint was filed in April 1961, the answers in July 1961. Shortly thereafter extensive taking of depositions began. The District Court in January 1963 directed that no depositions be taken after September 1, 1963. In response to an inquiry from the court both sides suggested that the trial be set no earlier than January 1964. [384 U.S. 563, 581] </s> At a pretrial conference in December 1963, government counsel told the court that the parties had been trying to reach agreement on a consent decree but were far apart and asked how the court would like to handle the presentation of the evidence in the event a settlement was not reached. Grinnell's lawyer suggested that the next appropriate procedure would be a pretrial on the question of relief - a suggestion that the District Court construed as an invitation to the court to discuss the relief apart from the merits. The Government objected. The court then asked for a brief from each side setting forth its views on relief if the Government prevailed on the merits. In response to the court's statement that "as I understand it, you want to find out what kind of relief I would be likely to allow if the government's case stood virtually uncontradicted," Grinnell's counsel replied: "That is what I had in mind, your Honor, yes." </s> Thereupon the court set a day for such a hearing. At the next pretrial conference Grinnell's counsel stated that "if your Honor would indicate the relief that might be appropriate in this case that would help both sides to come to a better understanding." </s> Then the following colloquy occurred: </s> "THE COURT. I don't think it would help very much. </s> "MR. McINERNEY. Well, your Honor, I think it would help both the plaintiff and the defendants to know what is really at stake here in this trial. </s> "THE COURT. I assure you that you would not be helped by anything I would say. You would do better to get together with the government rather than run the risk of what I would say from what I have seen. Let me just assure you of that. . . ." </s> The case was then set for trial on June 15, 1964. When Grinnell's counsel sought to argue further, the court stated: "There is no use in discussing it with me. I have [384 U.S. 563, 582] read enough to know that if I have to decide this case on what I have seen from the government you will not be in a position at this stage to agree to it." </s> On June 3, 1964, defendants argued for a postponement of the trial, saying they needed more time. The court denied the motion. Then they argued that the relief issues to be tried be limited to those raised by the pleadings so as to eliminate what they considered to be extraneous issues raised by the Government. To that the court replied: </s> "I can't understand frankly why you don't realize that you have forced me to look at the documents in this case, which I dislike doing in advance of trial. You have invited me, therefore, into what I regard as, from your point of view, a rather undesirable situation. I think I made that clear at the beginning. I have told you that, forced by you to look, my views are more extreme than those of the government; and I have also made you realize that if I am required to make Findings and reach Conclusions I am opening up third-party suits that will make, in view of the size of the industry, the percentage of people involved higher than in the electrical cases." </s> Shortly thereafter defendants filed a motion 12 for the disqualification of Judge Wyzanski on the grounds of personal bias and prejudice. 13 </s> [384 U.S. 563, 583] </s> The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Berger v. United States, 255 U.S. 22, 31 . Any adverse attitudes that Judge Wyzanski evinced toward the defendants were based on his study of the depositions and briefs which the parties had requested him to make. What he said reflected no more than his view that, if the facts were as the Government alleged, stringent relief was called for. </s> During the trial he repeatedly stated that he had not made up his mind on the merits. During the trial he ruled certain evidence to be irrelevant to the issues and when the lawyer persisted in offering it Judge Wyzanski said, "Maybe you will persuade somebody else. And if you think so, all right. I just assure you it is a great ceremonial act, as far as I am concerned." We do not read this statement as manifesting a closed mind on the merits of the case but consider it merely a terse way of repeating the previously stated ruling that this particular evidence was irrelevant. </s> We have examined all the other claims of the defendants made against Judge Wyzanski and find that the claim of bias and prejudice is not made out. Our discussion of the relief which he granted shows indeed that he was, in several critical respects, too lenient with those who now charge him with bias and prejudice. </s> The judgment below is affirmed except as to the decree. We remand for further hearings on the nature of the relief consistent with the views expressed herein. </s> It is so ordered. </s> Footnotes [Footnote 1 26 Stat. 209, as amended, 15 U.S.C. 2 (1964 ed.). </s> [Footnote 2 Expediting Act 2, 32 Stat. 823, as amended, 15 U.S.C. 29 (1964 ed.); United States v. Loew's, Inc., 371 U.S. 38 . </s> [Footnote 3 These are the record figures. Since the time of the trial, Grinnell's holdings have increased. Counsel for Grinnell has advised this Court that Grinnell now holds 80% of ADT's stock and 90% of the stock of AFA. </s> [Footnote 4 Among the various central station services offered are the following: </s> (1) automatic burglar alarms; </s> (2) automatic fire alarms; </s> (3) sprinkler supervisory service (any malfunctions in the fire sprinkler system - e. g., changes in water pressure, dangerously low water temperatures, etc. - are reported to the central station); and </s> (4) watch signal service (night watchmen, by operating a key-triggered device on the protected premises, indicate to the central station that they are making their rounds and that all is well; the failure of a watchman to make his electrical report alerts the central station that something may be amiss). </s> [Footnote 5 In 1959, ADT complained that AFA's share of the revenues was excessive. AFA replied, in a letter to the president of Grinnell (which by that time controlled both ADT and AFA), that its share was just compensation for its continued observance of the service and territorial restrictions: "[T]he geographic restrictions placed upon us plus the requirement that we confine our activities to sprinkler and fire alarm services exclusively, since 1907 and presumably into the future, has definitely retarded our expansion in the past to the benefit of ADT growth. . . . [AFA's] contribution must also include the many things that helped make ADT big." (Emphasis added.) </s> [Footnote 6 Thus, of the 38 nondefendant firms operating a central service station protective service in the United States in 1961, 24 offered [384 U.S. 563, 573] all of the following services: automatic fire alarm; waterflow alarm and sprinkler supervision; watchman's reporting and manual fire alarm; and burglar alarm. Of the other firms, 11 provided no watchman's reporting and manual fire alarm service; six provided no automatic fire alarm service; and two offered no sprinkler supervisory and waterflow alarm service. Moreover, of the 14 firms not providing the full panoply of services, 10 lacked only one of the above-described services. Appellant ADT's assertion that "very few accredited central stations furnish the full variety of services" is flatly contradicted by the record. </s> [Footnote 7 Since the record clearly shows that this monopoly power was consciously acquired, we have no reason to reach the further position of the District Court that once monopoly power is shown to exist, the burden is on the defendants to show that their dominance is due to skill, acumen, and the like. </s> [Footnote 8 Although the Government originally urged that the decree was inadequate as to divestiture in that it permitted Grinnell to distribute the stock of the other companies to Grinnell's shareholders, it has abandoned that point in this Court. </s> [Footnote 9 Specifically, the areas of disagreement are: (1) Defendants urge that barring them from offering five-year contracts would put them at a competitive disadvantage vis-a-vis nondefendant firms; the Government responds that since they violated the law, they may properly be subjected to restrictions not borne by others. See United States v. Bausch & Lomb Co., 321 U.S. 707, 723 -724. (2) Some customers of defendants may wish to have long-term contracts; the Government responds that this may be explored on remand. (3) There is some dispute as to whether, if the central station company cannot retain title to the equipment it installs, the insurance companies will accredit the system. This, too, is a proper subject for inquiry on remand. </s> [Footnote 10 Prior to trial, the defendants agreed that this would be an appropriate provision in a decree were the Government to prevail in all its claims of antitrust violations. Although defendants now maintain that this pretrial discussion was "settlement talk," that earlier concession is a relevant factor that the District Judge can properly take into account on remand. </s> [Footnote 11 This provision, too, gained pretrial acceptance. See n. 10, supra. </s> [Footnote 12 28 U.S.C. 144 (1964 ed.) provides in relevant part: </s> "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." </s> [Footnote 13 Judge Wyzanski referred the question of his disqualification to Chief Judge Woodbury of the Court of Appeals for the First [384 U.S. 563, 583] Circuit who after hearing oral argument held that no case of bias and prejudice had been made out under 144. </s> MR. JUSTICE HARLAN, dissenting. </s> I cannot agree with the Court that the relevant market has been adequately proved. I do not dispute that a [384 U.S. 563, 584] national market may be found even though immediate competition takes place only within individual communities, some of which are themselves natural monopolies. For a national monopoly of such local enterprises may still have serious long-term impact on competition and be vulnerable on its own plane to the antitrust laws. In the product market also the Court seems to me to make out a good enough case for lumping together the different kinds of central station protective service (CSPS). But I cannot agree that the facts so far developed warrant restricting the product market to accredited CSPS. </s> Because the ultimate issue is the effective power to control price and competition, this Court has always recognized that the market must include products or services "reasonably interchangeable" with those of the alleged monopolist. United States v. du Pont & Co., 351 U.S. 377, 395 . In this instance, there is no doubt that the accredited CSPS business does compete in some measure with many other forms of hazard protection: watchmen, local alarms, proprietary systems, telephone-connected services, unaccredited CSPS, direct-connected (to police and fire stations) systems, and so forth. The critical question, then, is the extent of competition from these rivals. </s> The Government and the majority have stressed that differences in cost, reliability and insurance discounts may disqualify a competing form of protection for a particular customer. For example, it is said that proprietary systems are too expensive for any but large companies and local alarms may go unanswered in some neighborhoods. But if in general a CSPS customer has a feasible alternative to CSPS, it does not much matter that other ones are foreclosed to him, nor that other CSPS customers have different second choices. From this record, it may well be that other forms of protection are each competitive enough with segments of the CSPS [384 U.S. 563, 585] market so that in sum CSPS rarely has a monopoly position. </s> From the defense standpoint, there is substantial evidence showing that the defendants do feel themselves under pressure from other forms of protection, that they do compete for customers, and that they do lower prices even in areas where no CSPS competition is present. This concrete evidence of market behavior seems to me to rank higher than the kind of inference proof heavily relied on by the Government - physical differences between competing forms of protection, self-advertising claims of CSPS companies that they represent a superior service, and varying insurance discounts. Given that the burden of proof rests upon the Government, the record leaves me with such misgivings as to the validity of the District Court's findings on this score that I am not prepared to agree that the Government has made the showing of market domination that the law demands before a business is sundered. </s> At the same time the case must be recognized as a close one, and I am not ready to say at this stage that the findings and conclusions of the District Court might not be supportable. All things considered, I join with my Brothers FORTAS and STEWART to the extent of voting to remand the case for further proceedings so that new findings can be made as to the relevant product market. This course seems to me the more appropriate in light of the fact that because of the Expediting Act, 15 U.S.C. 29 (1964 ed.), we have not had the benefit of any intermediate appellate sifting of this record. In view of the disposition I propose, I do not consider any of the other questions in the case. </s> MR. JUSTICE FORTAS, with whom MR. JUSTICE STEWART joins, dissenting. </s> I agree that the judgment below should be remanded, but I do not agree that the remand should be limited to [384 U.S. 563, 586] reshaping the decree. Because I believe that the definition of the relevant market here cannot be sustained, I would reverse and remand for a new determination of this basic issue, subject to proper standards. </s> We have here a case under both 1 and 2 of the Sherman Act, which proscribe combinations in restraint of trade, and monopolies and attempts to monopolize. The judicial task is not difficult to state: Does the record show a combination in restraint of trade or a monopoly or attempt to monopolize? If so, what are its characteristics, scope and effect? And, finally, what is the appropriate remedy for a court of equity to decree? </s> Each of these inquiries depends upon two basic referents: definition of the geographical area of trade or commerce restrained or monopolized, and of the products or services involved. In 1 cases this problem ordinarily presents little difficulty because the combination in restraint of trade itself delineates the "market" with sufficient clarity to support the usual injunctive form of relief in those cases. See, e. g., United States v. Griffith, 334 U.S. 100 . In the present case, however, the essence of the offense is monopolization, achieved or attempted, and the major relief is divestiture. For these purposes, "market" definition is of the essence, just as in 7 cases 1 the kindred definition of the "line of commerce" is fundamental. We must define the area of commerce that is allegedly engrossed before we can determine its engrossment; and we must define it before a decree can be shaped to deal with the consequences of the monopoly, and to restore or produce competition. See United States v. du Pont & Co. (the Cellophane Case), 351 U.S. 377 , [384 U.S. 563, 587] 389-396; United States v. Aluminum Co. of America, 148 F.2d 416 (C. A. 2d Cir. 1945). </s> In 2 cases, the search for "the relevant market" must be undertaken and pursued with relentless clarity. It is, in essence, an economic task put to the uses of the law. Unless this task is well done, the results will be distorted in terms of the conclusion as to whether the law has been violated and what the decree should contain. </s> In this case, the relevant geographical and product markets have not been defined on the basis of the economic facts of the industry concerned. They have been tailored precisely to fit defendants' business. The Government proposed and the trial court concluded that the relevant market is not the business of fire protection, or burglary protection, or protection against waterflow, etc., or all of these together. It is not even the business of furnishing these from a central location. It is the business, viewed nationally, of supplying "insurance accredited central station protection services" (CSPS) - that is, fire, burglary and other kinds of protection furnished from a central station which is accredited by insurance companies. The business of defendants fits neatly into the product and geographic market so defined. In fact, it comes close to filling the market so defined. 2 This Court has now approved this Procrustean definition. </s> The geographical market is defined as nationwide. But the need and the service are intensely local - more local by far, for example, than the market which this Court found to be local in United States v. Philadelphia Nat. Bank, 374 U.S. 321, 357 -362. 3 The premises protected [384 U.S. 563, 588] do not travel. They are fixed locations. They must be protected where they are. Protection must be provided on the spot. It must be furnished by local personnel able to bring help to the scene within minutes. Even the central stations can provide service only within a 25-mile radius. Where the tenants of the premises turn to central stations for this service, they must make their contracts locally with the central station and purchase their services from it on the basis of local conditions. </s> But because these defendants, the trial court found, are connected by stock ownership, interlocking management and some degree of national corporate direction, and because there is some national participation in selling as well as national financing, advertising, purchasing of equipment, and the like, 4 the court concluded that the competitive area to be considered is national. This Court now affirms that conclusion. </s> This is a non sequitur. It is not permissible to seize upon the nationwide scope of defendants' operation and to bootstrap a geographical definition of the market from this. The purpose of the search for the relevant geographical market is to find the area or areas to which a potential buyer may rationally look for the goods or services that he seeks. The test, as this Court said in United States v. Philadelphia Nat. Bank, is "the geographic structure of supplier-customer relations," 374 U.S. 321, 357 , quoting Kaysen & Turner, Antitrust Policy 102 (1959). And, as MR. JUSTICE CLARK put it in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327 , the definition of the relevant market requires [384 U.S. 563, 589] "careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies." 5 The central issue is where does a potential buyer look for potential suppliers of the service - what is the geographical area in which the buyer has, or, in the absence of monopoly, would have, a real choice as to price and alternative facilities? This depends upon the facts of the market place, taking into account such economic factors as the distance over which supplies and services may be feasibly furnished, consistently with cost and functional efficiency. </s> The incidental aspects of defendants' business which the court uses cannot control the outcome of this inquiry. They do not measure the market area in which buyer and sellers meet. They have little impact upon the ascertainment of the geographical areas in which the economic and legal questions must be answered: have defendants "monopolized" or "restrained" trade; have they eliminated or can they eliminate competitors or prevent or obstruct new entries into the business; have they controlled or can they control price for the services? These are the issues; and, in defendants' business, a finding that the "relevant market" is national is nothing less than a studied failure to assess the effect of defendants' position and practices in the light of the competition which exists, or could exist, in economically defined areas - in the real world. </s> Here, there can be no doubt that the correct geographic market is local. The services at issue are intensely local: they can be furnished only locally. The business as it is done is local - not nationwide. If, as might well be the case on this record, defendants were found to have violated the Sherman Act in a number of these local areas, a proper decree, directed to those markets, as well as to [384 U.S. 563, 590] general corporate features relevant to the condemned practices, could be fashioned. On the other hand, a gross definition of the market as nationwide leads to a gross, nationwide decree which does not address itself to the realities of the market place. That is what happened here: The District Court's finding that the market was nationwide logically led it to a decree which operated on the only national aspect of the situation, the parent company nexus, instead of on the economically realistic areas - the local situations. This Court now directs the trial court to require "some [unspecified] divestiture" locally by the alarm companies. This is a recognition of the economic reality that the relevant competitive areas are local. In plain terms, the Court's direction to the trial court means a "market-by-market" analysis for the purpose of breaking up defendants' monopoly position and creating competitors and competition wherever feasible in particular cities. In my view, however, by so directing, the Court implies that which it does not command: that the case should be reconsidered at the trial court level because of the improper standard it used to define the relevant geographic markets. </s> The trial court's definition of the "product" market even more dramatically demonstrates that its action has been Procrustean - that it has tailored the market to the dimensions of the defendants. It recognizes that a person seeking protective services has many alternative sources. It lists "watchmen, watchdogs, automatic proprietary systems confined to one site, (often, but not always,) alarm systems connected with some local police or fire station, often unaccredited CSPS [central station protective services], and often accredited CSPS." The court finds that even in the same city a single customer seeking protection for several premises may "exercise its option" differently for different locations. It may choose [384 U.S. 563, 591] accredited CSPS for one of its locations and a different type of service for another. </s> But the court isolates from all of these alternatives only those services in which defendants engage. It eliminates all of the alternative sources despite its conscientious enumeration of them. Its definition of the "relevant market" is not merely confined to "central station" protective services, but to those central station protective services which are "accredited" by insurance companies. </s> There is no pretense that these furnish peculiar services for which there is no alternative in the market place, on either a price or a functional basis. The court relies solely upon its finding that the services offered by accredited central stations are of better quality, and upon its conclusion that the insurance companies tend to give "noticeably larger" discounts to policyholders who use accredited central station protective services. This Court now approves this strange red-haired, bearded, one-eyed man-with-a-limp classification. </s> The unreality of the trial court's market definition may best be illustrated by an example. Consider the situation of a retail merchant in Pittsburgh who wishes to protect his store against burglary. The Holmes Electric Protective Company, a subsidiary of Grinnell, operates an accredited central station service in Pittsburgh. It provides only burglary protection. </s> The gerrymandered market definition approved today totally excludes from the market consideration of the availability in Pittsburgh of cheaper but somewhat less reliable local alarm systems, or of more expensive (although the expense is reduced by greater insurance discounts) watchman service, or even of unaccredited central station service which virtually duplicates the Holmes service. </s> Instead, and in the name of "commercial realities," we are instructed that the "relevant market" - which totally [384 U.S. 563, 592] excludes these locally available alternatives - requires us to look only to accredited central station service, and that we are to include in the "market" central stations which do not furnish burglary protection and even those which serve such places as Boston and Honolulu. 6 </s> Moreover, we are told that the "relevant market" must assume this strange and curious configuration despite evidence in the record and a finding of the trial court that "fringe competition" from such locally available alternatives as watchmen, local alarm systems, proprietary systems, and unaccredited central stations has, in at least 20 cities, forced the defendants to operate at a "loss" even though defendants have a total monopoly in these cities of the "market" - namely, the "accredited central station protective services." And we are led to this odd result even though there is in the record abundant evidence that customers switch from one form of property protection to another, and not always in the direction of accredited central station service. </s> I believe this approach has no justification in economics, reason or law. It might be supportable if it were found that the accredited central stations offer services which are unique in the sense that potential buyers - or at least a substantial, identifiable part of the trade - look only to them for the services in question, and that neither cost, type, quality of service nor other factors bring competing services into the market. The findings here and the record do not permit this conclusion. </s> The Government's market definition, accepted by the trial court, is a distortion which inevitably leads to a superficial and distorted result even in the hands of a highly skilled judge. As this Court held in Brown Shoe, supra, the "reasonable interchangeability of use or the [384 U.S. 563, 593] cross-elasticity of demand," determines the boundaries of a product market. 370 U.S., at 325 . See also the Cellophane Case, 351 U.S., at 380 . In plain language, this means that the court should have defined the relevant market here to include all services which, in light of geographical availability, price and use characteristics, are in realistic rivalry for all or some part of the business of furnishing protective services to premises. In the present situation, however, the court's own findings show that practical alternatives are available to potential users - although they vary from market to market and possibly from user to user. These have been arbitrarily excluded from the court's definition. </s> I do not suggest that wide disparities in quality, price and customer appeal could never affect the definition of the market. But this follows only where the disparities are so great that they create separate and distinct categories of buyers and sellers. The record here and the findings do not approach this standard. They fall far short of justifying the narrowing of the market as practiced here. I need refer only to the exclusion of nonaccredited central stations, which the court seeks to justify by reference to differentials in insurance discounts. These differentials may indeed affect the relative cost to the consumer of the competing modes of protection. But, in the absence of proof that they result in eliminating the competing services from the category of those to which the purchaser "can practicably turn" for supplies, 7 they do not justify such total exclusion. This sort of exclusion of the supposedly not-quite-so-attractive service from the basic definition of the kinds of business and service against which defendants' activity will be measured, is entirely unjustified on this record. 8 </s> [384 U.S. 563, 594] </s> The importance of this kind of truncated market definition vividly appears if we are to say, as the trial court here held, that if defendant has so large a fraction of the market as to constitute a "predominant" share, a rebuttable presumption of monopolization follows. The fraction depends upon the denominator (the "market") as well as the numerator (the defendants' volume). Clearly, this "presumption" is unwarranted unless the "market" is defined to include all competitors. The contrary is not supported by this Court's decisions in either the Cellophane Case, supra, or United States v. du Pont & Co. (General Motors), 353 U.S. 586 . The latter case defined the market in terms of the total products which could be used for the defined purposes: automobile fabrics and finishes. This embraces the total range of options for customers seeking these products. On the contrary, as the record here shows and as the findings, candidly read, imply, substantial options exist for services other than through accredited central stations providing protective services. Those options, whether for all or a part of the services in issue, must be included in the assessment of the market. </s> In the opinion which this Court hands down today, there is considerable discussion of defendants' argument that the market should be "broken down" by different [384 U.S. 563, 595] type of service: e. g., burglar protection, fire protection, etc. The Court rejects this on the ground that it is appropriate to evaluate a "cluster" of services as such. It points to Philadelphia Nat. Bank, supra, for support for its approach. In that case, MR. JUSTICE BRENNAN'S opinion for the Court carefully set out the distinctive characteristics of banking services: that some of these services (e. g., checking accounts) are virtually free of competition from other types of institutions, and that other services are distinctive in cost or other characteristics. 374 U.S., at 356 -357. See also United States v. First Nat. Bank, 376 U.S. 665, 668 (per DOUGLAS, J.). Similarly, in United States v. Paramount Pictures, 334 U.S. 131 , and International Boxing Club v. United States, 358 U.S. 242, 249 -252, "first-run" moving pictures and championship boxing matches were held sufficiently distinctive in terms of demand in the market place to warrant consideration as separate markets. </s> But no such distinctiveness exists here. As I have discussed, neither this record nor the trial court's findings show either a distinctive demand or a separable market for "insurance accredited central station protective services." The contrary is evident. None of the services furnished by accredited central stations is unique, as I have discussed. Nor is there even a common or predominant "cluster" of services offered by the central stations. One of the defendants, Holmes, is engaged only in the burglary alarm business. Another, AFA, furnishes only fire and waterflow service. Only ADT among the defendants makes available to its customers the full "cluster." </s> I do not mean to suggest that the Government must prove its case, service by service. But in defining the market, individual services, even if furnished in isolation, ought to be specified and here, as distinguished from the conclusion impelled by the circumstances in [384 U.S. 563, 596] Philadelphia Nat. Bank, supra, competitors for individual services ought to be taken into account. </s> I do not intend by any of the foregoing to suggest that, on this record, the relief granted by the trial court and the substantially more drastic relief ordered by this Court would necessarily be unjustified. It is entirely possible that monopoly or attempt to monopolize may be found - and perhaps found with greater force - in local situations. Relief on a pervasive, system-wide, national basis might follow, as decreed by the trial court, as well as divestiture in appropriate local situations, as directed by this Court. It is impossible, I submit, to make these judgments on the findings before us because of the distortion due to an incorrect and unreal definition of the "relevant market." Now, because of this Court's mandate, the market-by-market inquiry must begin for purposes of the decree. But this should have been the foundation of judgment, not its superimposed conclusion. This inquiry should - in my opinion, it must - take into account the total economic situation - all of the options available to one seeking protection services. It should not be limited to central stations, and certainly not to "insurance accredited central station protective services" which this Court sanctions as the relevant market. Since I am of the opinion that defendants and the courts are entitled to a reappraisal of the liability consequences as well as the appropriate provisions of the decree on the basis of a sound definition of the market, I would reverse and remand for these purposes. </s> [Footnote 1 United States v. Continental Can Co., 378 U.S. 441, 447 -458; United States v. Alcoa, 377 U.S. 271, 273 -277; United States v. Philadelphia Nat. Bank, 374 U.S. 321, 356 ; Brown Shoe Co. v. United States, 370 U.S. 294, 324 . </s> [Footnote 2 The defendants constitute 87% of the market as defined. One of the defendants alone, ADT, has 73%. </s> [Footnote 3 See also United States v. First Nat. Bank, 376 U.S. 665, 668 (per DOUGLAS, J.); American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F. Supp. 387, 398 (D.C. S. D. N. Y. 1957), aff'd, 259 F.2d 524 (C. A. 2d Cir. 1958). </s> [Footnote 4 There is a danger that this Court's opinion, ante, at 575-576, will be read as somewhat overstating the case. There is neither finding nor record to support the implication that rates are to any substantial extent fixed on a nationwide basis, or that there are nationwide contracts with multistate businesses in any significant degree, or that insurers inspect or certify central stations on a nationwide basis. </s> [Footnote 5 See also Brown Shoe Co. v. United States, 370 U.S. 294, 336 -337. </s> [Footnote 6 None of the stations operated by defendant Automatic Fire Alarm Company offers burglary protection, just as none of Holmes' stations protects against the risk of fire. </s> [Footnote 7 Tampa Electric Co. v. Nashville Coal Co., 365 U.S., at 327 . </s> [Footnote 8 The example used by the court in its findings is illuminating and disturbing. In explanation of its narrow market definition, [384 U.S. 563, 594] the court says that the difference between the accredited central station protective services and all others "could be compared" to the difference between a compact six-cylinder car and a chauffeur-driven sedan. It is probably true that the degree of direct competition between luxury automobiles and compacts is slight. But it is by no means as clear-cut as the trial court seems to suggest. The question would require careful analysis in light of the total facts and issues. For example, if the antitrust problem at hand involved an acquisition of the business of a manufacturer of compacts by a maker of luxury cars, it is by no means inconceivable that sufficient competitive overlap would be found to place both products in the "relevant market." </s> [384 U.S. 563, 597]

United States Supreme Court LEXECON INC. ET AL . v. MILBERG WEISS BERSHAD HYNES & LERACH(1998) No. 96-1482 Argued: November 10, 1997Decided: March 3, 1998 </s> </s> Petitioners, a law and economics consulting firm and one of its principals (collectively, Lexecon), were defendants in a class action brought against Charles Keating and the American Continental Corporation in connection with the failure of Lincoln Savings and Loan. It and other actions arising out of that failure were transferred for pretrial proceedings to the District of Arizona under 28 U.S.C. § 1407(a), which authorizes the Judicial Panel on Multidistrict Litigation to transfer civil actions with common issues of fact "to any district for coordinated or consolidated pretrial proceedings," but provides that the Panel "shall" remand any such action to the original district "at or before the conclusion of such pretrial proceedings." Before the pretrial proceedings ended, the plaintiffs and Lexecon reached a "resolution," and the claims against Lexecon were dismissed. Subsequently, Lexecon brought this diversity action in the Northern District of Illinois against respondent law firms (hereinafter Milberg and Cotchett), claiming several torts, including defamation, arising from the firms' conduct as counsel for the class action plaintiffs. Milberg and Cotchett moved for, and the Panel ordered, a §1407(a) transfer to the District of Arizona. After the remaining parties to the Lincoln Savings litigation reached a final settlement, Lexecon moved the Arizona District Court to refer the case back to the Panel for remand to the Northern District of Illinois. The law firms filed a countermotion requesting the Arizona District Court to invoke §1404(a) to "transfer" the case to itself for trial. With only the defamation claim against Milberg remaining after a summary judgment ruling, the court assigned the case to itself for trial and denied Lexecon's motion to request the Panel to remand. The Ninth Circuit then denied Lexecon's petition for mandamus, refusing to vacate the self-assignment order and require remand because Lexecon would have the opportunity to obtain relief from the transfer order on direct appeal. After Milberg won a judgment on the defamation claim, Lexecon again appealed the transfer order. The Ninth Circuit affirmed on the ground that permitting the transferee court to assign a case to itself upon completion of its pretrial work was not only consistent with the statutory language but conducive to efficiency. </s> Held: A district court conducting pretrial proceedings pursuant to §1407(a) has no authority to invoke §1404(a) to assign a transferred case to itself for trial. Pp. 5-17. </s> (a) Two sources of ostensible authority for Milberg's espousal of self-assignment authority are that the Panel has explicitly authorized such assignments in Panel Rule 14(b), which it issued in reliance on its rulemaking authority; and that §1407(a)'s limitations on a transferee court's authority to the conduct of "coordinated or consolidated" proceedings and to "pretrial proceedings" raise no obvious bar to a transferee's retention of a case under §1404. Beyond this point, however, the textual pointers reverse direction, for §1407 not only authorizes the Panel to transfer for coordinated or consolidated pretrial proceedings, but obligates the Panel to remand any pending case to its originating court when, at the latest, those pretrial proceedings end. The Panel's remand instruction comes in terms of the mandatory "shall," which normally creates an obligation impervious to judicial discretion. Anderson v. Yungkau, 329 U.S. 482, 485 . Reading the statute whole, this Court has to give effect to this plain command, see Estate of Cowart v. Nicklos Drilling Co. , 505 U.S. 469, 476 , even if that will reverse the longstanding practice under the statute and the rule, see Metropolitan Stevedore Co. v. Rambo, 521 U. S. ___, ___. Pp. 5-10. </s> (b) None of Milberg's additional arguments based on the statute's language and legislative history can unsettle §1407's straightforward language imposing the Panel's responsibility to remand, which bars recognizing any self-assignment power in a transferee court and consequently entails the invalidity of the Panel's Rule 14(b). Pp. 10-14. </s> (c) Milberg errs in arguing that a remedy for Lexecon can be omitted under the harmless error doctrine. That §1407's strict remand requirement creates an interest too substantial to be left without a remedy is attested by a congressional judgment that no discretion is to be left to a court faced with an objection to a statutory violation. The §1407 mandate would lose all meaning if a party who continuously objected to an uncorrected categorical violation of the mandate could obtain no relief at the end of the day. Caterpillar Inc. v. Lewis, 519 U. S. ___, distinguished. Pp. 14-17. 102 F. 3d 1524, reversed and remanded. S OUTER , J., delivered the opinion of the Court, which was unanimous </s> except insofar as S CALIA , J., did not join Part II-C. </s> NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. </s> U.S. Supreme Court </s> No. 96-1482 </s> LEXECON INC. ET AL ., PETITIONERS v. MILBERG WEISS BERSHAD HYNES & LERACH </s> ETAL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [March 3, 1998] </s> JUSTICE SOUTER delivered the opinion of the Court. * </s> 28 U.S.C. § 1407(a) authorizes the Judicial Panel on Multidistrict Litigation to transfer civil actions with common issues of fact "to any district for coordinated or consolidated pretrial proceedings," but imposes a duty on the Panel to remand any such action to the original district "at or before the conclusion of such pretrial proceedings." Ibid. The issue here is whether a district court conducting such "pretrial proceedings" may invoke §1404(a) to assign a transferred case to itself for trial. We hold it has no such authority. </s> I </s> In 1992, petitioners, Lexecon Inc., a law and economics consulting firm, and one of its principals (collectively, Lexecon), brought this diversity action in the Northern District of Illinois against respondents, the law firms of Milberg Weiss Bershad Hynes & Lerach (Milberg) and Cotchett, Illston & Pitre (Cotchett), claiming malicious prosecution, abuse of process, tortious interference, commercial disparagement and defamation. The suit arose out of the firms' conduct as counsel in a prior class action brought against Charles Keating and the American Continental Corporation for violations of the securities and racketeering laws. Lexecon also was a defendant, charged with giving federal and state banking regulators inaccurate and misleading reports about the financial condition of the American Continental Corporation and its subsidiary Lincoln Savings and Loan. Along with other actions arising out of the failure of Lincoln Savings, the case against Lexecon was transferred under §1407(a) for pretrial proceedings before Judge Bilby in the District of Arizona, where the matters so consolidated were known as the Lincoln Savings litigation. Before those proceedings were over, the class action plaintiffs and Lexecon reached what they termed a "resolution," under which the claims against Lexecon were dismissed in August of 1992. </s> Lexecon then filed this case in the Northern District of Illinois charging that the prior class action terminated in its favor when the respondent law firms' clients voluntarily dismissed their claims against Lexecon as meritless, amounting to nothing more, according to Lexecon, than a vendetta. When these allegations came to the attention of Judge Bilby, he issued an order stating his understanding of the terms of the resolution agreement between Lexecon and the class action plaintiffs. 102 F. 3d 1524, 1529, and n. 2 (CA9 1996). Judge Bilby's characterization of the agreement being markedly at odds with the allegations in the instant action, Lexecon appealed his order to the Ninth Circuit. </s> Milberg joined by Cotchett then filed a motion under §1407(a) with the Judicial Panel on Multidistrict Litigation seeking transfer of this case to Judge Bilby for consolidation with the Lincoln Savings litigation. Although the judge entered a recusal because of the order he had taken it upon himself to issue, the law firms nonetheless renewed their motion for a §1407(a) transfer. </s> The Panel ordered a transfer in early June of 1993 and assigned the case to Judge Roll, noting that Lexecon's claims "share questions of fact with an as yet unapproved settlement involving Touche Ross, Lexecon, Inc. and the investor plaintiffs in the Lincoln Savings investor class actions in MDL-834." App. 18. The Panel observed that "i) a massive document depository is located in the District of Arizona and ii) the Ninth Circuit has before it an appeal of an order [describing the terms of Lexecon's dismissal from the Lincoln Savings litigation] in MDL-834 which may be relevant to the Lexecon claims." Ibid. Prior to any dispositive action on Lexecon's instant claims in the District of Arizona, the Ninth Circuit appeal mentioned by the Panel was dismissed, and the document depository was closed down. </s> In November 1993, Judge Roll dismissed Lexecon's state law malicious prosecution and abuse of process claims, applying a "heightened pleading standard," 845 F. Supp. 1377, 1383 (D. Ariz. 1993). Although the law firms then moved for summary judgment on the claims remaining, the judge deferred action pending completion of discovery, during which time the remaining parties to the Lincoln Savings litigation reached a final settlement, on which judgment was entered in March 1994. </s> In August 1994, Lexecon moved that the district court refer the case back to the Panel for remand to the Northern District of Illinois, thus heeding the point of Multidistrict Litigation Rule 14(d), which provides that "[t]he Panel is reluctant to order remand absent a suggestion of remand from the transferee district court." The law firms opposed a remand because discovery was still incomplete and filed a countermotion under §1404(a) requesting the District of Arizona to "transfer" the case to itself for trial. Judge Roll deferred decision on these motions as well. </s> In November 1994, Lexecon again asked the District Court to request the Panel to remand the case to the Northern District of Illinois. Again the law firms objected and requested a §1404 transfer, and Judge Roll deferred ruling once more. On April 24, 1995, however, he granted summary judgment in favor of the law firms on all remaining claims except one in defamation brought against Milberg, and at the same time he dismissed the law firms' counterclaims. 884 F. Supp. 1388, 1397 (D. Ariz. 1995). Cotchett then made a request for judgment under Federal Rule of Civil Procedure 54(b). Lexecon objected to the exercise of Rule 54(b) discretion, but did not contest the authority of the District Court in Arizona to enter a final judgment in Cotchett's favor. On June 7, 1995, the court granted respondent Cotchett's Rule 54(b) request. </s> In the meantime, the Arizona court had granted the law firms' §1404(a) motions to assign the case to itself for trial, and simultaneously had denied Lexecon's motions to request the Panel to remand under §1407(a). Lexecon sought immediate review of these last two rulings by filing a petition for mandamus in the Ninth Circuit. After argument, a majority of the Circuit panel, over the dissent of Judge Kozinski, denied Lexecon's requests to vacate the self-assignment order and require remand to the Northern District of Illinois. The Circuit so ruled even though the majority was "not prepared to say that [Lexecon's] contentions lack merit" and went so far as to note the conflict between "what appears to be a clear statutory mandate [of §1407 and §1404]" and Multidistrict Litigation Rule 14(b), which explicitly authorizes a transferee court to assign an action to itself for trial. Lexecon v. Milberg Weiss , No. 9570380 (CA9, July 21, 1995), p. 4. The majority simply left that issue for another day, relying on its assumption that Lexecon would have an opportunity to obtain relief from the transfer order on direct appeal: "[t]he transfer order can be appealed immediately along with other issues in the event the petitioners lose on the merits [at trial]." Id. , at p. 3. </s> Trial on the surviving defamation claim then went forward in the District of Arizona, ending in judgment for Milberg, from which Lexecon appealed to the Ninth Circuit. It again appealed the denial of its motion for a suggestion that the Panel remand the matter to the Northern District of Illinois, and it challenged the dismissal of its claims for malicious prosecution and abuse of process, and the entry of final judgment in favor of Cotchett. Lexecon took no exception to the Arizona court's jurisdiction (as distinct from venue) and pursued no claim of error in the conduct of the trial. </s> A divided panel of the Ninth Circuit affirmed, relying on the Panel's Rule 14 and appellate and district court decisions in support of the District Court's refusal to support remand under §1407(a) and its decision to assign the case to itself under §1404(a). 102 F. 3d, at 1532-1535. While the majority indicated that permitting the transferee court to assign a case to itself upon completion of its pretrial work was not only consistent with the statutory language but conducive to efficiency, Judge Kozinski again dissented, relying on the texts of §§1407(a) and 1404(a) and a presumption in favor of a plaintiff's choice of forum. We granted certiorari to decide whether §1407(a) does permit a transferee court to entertain a §1404(a) transfer motion to keep the case for trial. </s> II </s> A </s> In defending the Ninth Circuit majority, Milberg may claim ostensible support from two quarters. First, the Panel has itself sanctioned such assignments in a rule issued in reliance on its rulemaking authority under 28 U.S.C. § 1407(f ). The Panel's Rule 14(b) provides that "[e]ach transferred action that has not been terminated in the transferee district court shall be remanded by the Panel to the transferor district for trial, unless ordered transferred by the transferee judge to the transferee or other district under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406." Thus, out of the 39,228 cases transferred under §1407 and terminated as of September 30, 1995, 279 of the 3,787 ultimately requiring trial were retained by the courts to which the Panel had transferred them. Administrative Office of the United States, L. Mecham, Judicial Business of the United States Courts: 1995 Report of the Director, 32. Although the Panel's rule and the practice of self-assignment have not gone without challenge, see, e.g., 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3866, p. 619 (2d ed. 1986) (hereinafter Wright, Miller, & Cooper); Trangsrud, Joinder Alternatives in Mass Tort Litigation, 70 Cornell L. Rev. 779, 809 (1985); Levy, Complex Multidistrict Litigation and the Federal Courts, 40 Ford. L. Rev. 41, 64-65 (1972), federal courts have treated such transfers with approval, beginning with the Second Circuit's decision in Pfizer, Inc . v. Lord , 447 F. 2d 122, 124-125 (CA2 1971) (per curiam) (upholding MDL Rule 15(d), the precursor to Rule 14(b)). See, e.g., In re Fine Paper Antitrust Litigation , 685 F. 2d 810, 820, and n. 7 (CA3 1982); In re Air Crash Disaster at Detroit Metro. Airport , 737 F. Supp. 391, 393-394 (E. D. Mich. 1989); In re Viatron Computer Sys. Corp. , 86 F. R. D. 431, 432 (Mass. 1980). </s> The second source of ostensible authority for Milberg' s espousal of the self-assignment power here is a portion of text of the multidistrict litigation statute itself: </s> "When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings." </s> 28 U.S.C. § 1407(a). </s> Although the statute limits a transferee court's authority to the conduct of "coordinated or consolidated" proceedings and to those that are "pretrial," these limitations alone raise no obvious bar to a transferee's retention of a case under §1404. If "consolidated" proceedings alone were authorized, there would be an argument that selfassignment of one or some cases out of many was not contemplated, but because the proceedings need only be "coordinated," no such narrow limitation is apparent. While it is certainly true that the instant case was not "consolidated" with any other for the purpose literally of litigating identical issues on common evidence, it is fair to say that proceedings to resolve pretrial matters were "coordinated" with the conduct of earlier cases sharing the common core of the Lincoln Savings debacle, if only by being brought before judges in a district where much of the evidence was to be found and overlapping issues had been considered. Judge Bilby's recusal following his decision to respond to Lexecon's Illinois pleadings may have limited the prospects for coordination, but it surely did not eliminate them. Hence, the requirement that a transferee court conduct "coordinated or consolidated" proceedings did not preclude the transferee Arizona court from ruling on a motion (like the §1404 request) that affects only one of the cases before it. </s> Likewise, at first blush, the statutory limitation to "pretrial" proceedings suggests no reason that a §1407 transferor court could not entertain a §1404(a) motion. Section 1404(a) authorizes a district court to transfer a case in the interest of justice and for the convenience of the parties and witnesses. See §1404(a). Such transfer requests are typically resolved prior to discovery , see Wright, Miller, & Cooper §3866, at 620, and thus are classic "pretrial" motions. </s> Beyond this point, however, the textual pointers reverse direction, for §1407 not only authorizes the Panel to trans fer for coordinated or consolidated pretrial proceedings, but obligates the Panel to remand any pending case to its originating court when, at the latest, those pretrial proceedings have run their course. </s> "Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated." </s> §1407(a) (proviso without application here omitted). </s> The Panel's instruction comes in terms of the mandatory "shall," which normally creates an obligation impervious to judicial discretion. Anderson v . Yungkau , 329 U.S. 482, 485 (1947). In the absence of any indication that there might be circumstances in which a transferred case would be neither "terminated" nor subject to the remand obligation, then, the statutory instruction stands flatly at odds with reading the phrase "coordinated or consolidated pretrial proceedings" so broadly as to reach its literal limits, allowing a transferee court's self-assignment to trump the provision imposing the Panel's remand duty. If we do our job of reading the statute whole, we have to give effect to this plain command, see Estate of Cowart v . Nicklos Drilling Co. , 505 U.S. 469, 476 (1992), even if doing that will reverse the longstanding practice under the statute and the rule, see Metropolitan Stevedore Co. v . Rambo (1995) (" 'Age is no antidote to clear inconsistency with a statute." (quoting Brown v. Gardner , 513 U. S 115, 122 (1994))). </s> As the Ninth Circuit panel majority saw it, however, the inconsistency between an expansive view of "coordinated or consolidated pretrial" proceedings and the uncompromising terms of the Panel's remand obligation disappeared as merely an apparent conflict, not a real one. The "focus" of §1407 was said to be constituting the Panel and defining its authority, not circumscribing the powers of district courts under §1404(a). 102 F. 3d, at 1533. Milberg presses this point in observing that §1407(a) does not, indeed, even apply to transferee courts, being concerned solely with the Panel's duties, whereas §1407(b), addressed to the transferee courts, says nothing about the Panel's obligation to remand. But this analysis fails to persuade, for the very reason that it rejects that central tenet of interpretation, that a statute is to be considered in all its parts when construing any one of them. To emphasize that §1407(b) says nothing about the Panel's obligation when addressing a transferee court's powers is simply to ignore the necessary consequence of self-assignment by a transferee court: it conclusively thwarts the Panel's capacity to obey the unconditional command of §1407(a). </s> A like use of blinders underlies the Circuit majority's conclusion that the Panel was not even authorized to remand the case under its Rule 14(c), the terms of which condition the remand responsibility on a suggestion of the transferee court, a motion filed directly with the Panel, or the Panel's sua sponte decision to remand. None of these conditions was fulfilled, according to the Court of Appeals, which particularly faulted Lexecon for failing to file a remand motion directly with the Panel, as distinct from the transferee court. 1 </s> This analysis, too, is unpersuasive; it just ignores the fact that the statute places an obligation on the Panel to remand no later than the conclusion of pretrial proceedings in the transferee court, and no exercise in rulemaking can read that obligation out of the statute. See 28 U.S.C. § 1407(f ) (express requirement that rules be consistent with statute). </s> B </s> Milberg proffers two further arguments for overlooking the tension between a broad reading of a court's pretrial authority and the Panel's remand obligation. First, it relies on a subtle reading of the provision of §1407(a) limiting the Panel's remand obligation to cases not "previously terminated" during the pretrial period. To be sure, this exception to the Panel's remand obligation indicates that the Panel is not meant to issue ceremonial remand orders in cases already concluded by summary judgment, say, or dismissal. But according to Milberg, the imperative to remand is also inapplicable to cases self-assigned under §1404, because the self-assignment "terminates" the case insofar as its venue depends on §1407. When the §1407 character of the action disappears, Milberg argues, the strictures of §1407 fall away as well, relieving the Panel of any further duty in the case. The trouble with this creative argument, though, is that the statute manifests no such subtlety. Section 1407(a) speaks not in terms of imbuing transferred actions with some new and distinctive venue character, but simply in terms of "civil actions" or "actions." It says that such an action, not its acquired personality, must be terminated before the Panel is excused from ordering remand. The language is straightforward, and with a straightforward application ready to hand, statutory interpretation has no business getting metaphysical. </s> Second, Milberg tries to draw an inference in its favor from the one subsection of §1407 that does authorize the Panel to transfer a case for trial as well as pretrial proceedings. Subsection (h) provides that, </s> "[n]otwithstanding the provisions of section 1404 or subsection (f ) of this section, the judicial panel on multidistrict litigation may consolidate and transfer with or without the consent of the parties, for both pretrial purposes and for trial, any action brought under section 4C of the Clayton Act." </s> Milberg fastens on the introductory language explicitly overriding the "provisions of section 1404 or subsection (f )," which would otherwise, respectively, limit a district court to transferring a case "to any other district or division where it might have been brought," §1404(a), and limit the Panel to prescribing rules "not inconsistent with Acts of Congress," §1407(f ). On Milberg's reasoning, these overrides are required because the cited provisions would otherwise conflict with the remainder of subsection (h) authorizing the Panel to order trial of certain Clayton Act cases in the transferee court. The argument then runs that since there is no override of subsection (a) of §1407, subsection (a) must be consistent with a transfer for trial as well as pretrial matters. This reasoning is fallacious, however. Subsections (a) and (h) are independent sources of transfer authority in the Panel; each is apparently written to stand on its own feet. Subsection (h) need not exclude the application of subsection (a), because nothing in (a) would by its terms limit any provision of (h). </s> Subsection (h) is not merely valueless to Milberg, however; it is ammunition for Lexecon. For the one point that subsection (h) does demonstrate is that Congress knew how to distinguish between trial assignments and pretrial proceedings in cases subject to §1407. Although the enactment of subsection (a), Act of Apr. 29, 1968, 82 Stat. 109, preceded the enactment of subsection (h), Act of Sept. 30, 1976, §303, 90 Stat. 1394, 1396, the fact that the later section distinguishes trial assignments from pretrial proceedings generally is certainly some confirmation for our conclusion, on independent grounds, that the subjects of pretrial proceedings in subsections (a) and (b) do not include self-assignment orders. 2 </s> C </s> There is, finally, nothing left of Milberg's position beyond an appeal to legislative history, some of which turns out to ignore the question before us, and some of which may support Lexecon. Milberg cites a House Report on the bill that became §1407, which addresses the question of trial transfer in multidistrict litigation cases by saying that "[o]f course, 28 U. S. C. 1404, providing for changes of venue generally, is available in those instances where transfer of a case for all purposes is desirable." H. R. Rep. No.1130, 90th Cong., 2d Sess., p. 4 (1968) (hereinafter H. R. Rep.), cited in Brief for Respondents Milberg et al. 25. But the question is not whether a change of venue may be ordered in a case consolidated under §1407(a); on any view of §1407(a), if an order may be made under §1404(a), 3 </s> it may be made after remand of the case to the originating district court. The relevant question for our purposes is whether a transferee court, and not a transferor court, may grant such a motion, and on this point, the language cited by Milberg provides no guidance. </s> If it has anything to say to us here, the legislative history tends to confirm that self-assignment is beyond the scope of the transferee court's authority. The same House Report that spoke of the continued vitality of §1404 in §1407 cases also said this: </s> "The proposed statute affects only the pretrial stages in multidistrict litigation. It would not affect the place of trial in any case or exclude the possibility of transfer under other Federal statutes. . . . . . </s> The subsection requires that transferred cases be remanded to the originating district at the close of coordinated pretrial proceedings. The bill does not, therefore, include the trial of cases in the consolidated proceedings." </s> H. R. Rep., at 3-4. </s> The comments of the bill's sponsors further suggest that application of §1407 (before the addition of subsection h) would not affect the place of trial. See, e.g., Multidistrict Litigation: Hearings on S. 3815 and S. 159 before the Subcommittee on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary , 90th Cong., 1st Sess. pt. 2, p. 110 (1967) (Sen. Tydings) ("[W]hen the deposition and discovery is completed, then the original litigation is remanded to the transferor district for trial"). Both the House and the Senate Reports stated that Congress would have to amend the statute if it determined that multidistrict litigation cases should be consolidated for trial. S. Rep. No. 454, 90th Cong., 1st Sess., p. 5 (1967). </s> D </s> In sum, none of the arguments raised can unsettle </s> the straightforward language imposing the Panel's re- </s> sponsibility to remand, which bars recognizing any </s> self-assignment power in a transferee court and con- </s> sequently entails the invalidity of the Panel's Rule </s> 14(b). See 28 U.S.C. § 1407(f ). Milberg may or may </s> not be correct that permitting transferee courts to </s> make self-assignments would be more desirable than </s> preserving a plaintiff's choice of venue (to the degree </s> that §1407(a) does so), but the proper venue for re- </s> solving that issue remains the floor of Congress. See Amchem Products, Inc. v. Windsor , 521 U. S. ___, ___ </s> (slip op., at 34-35) (1997); Finley v . United States , 490 </s> U. S. 545, 556 (1989). 4 </s> III </s> The remaining question goes to the remedy, which Milberg argues may be omitted under the harmless error doctrine. Milberg posits a distinction between a first category of cases erroneously litigated in a district in which (absent waiver) venue may never be laid under the governing statute, see Olberding v . Illinois Central R. Co., 346 U.S. 338, 340 (1953), and a second category, in which the plaintiff might originally have chosen to litigate in the trial forum to which it was unwillingly and erroneously carried, as by a transfer under §1404. In the first, reversal is necessary; in the second affirmance is possible if no independent and substantial right was violated in a trial whose venue was determined by a discretionary decision. Since Lexecon could have brought suit in the Arizona district consistently with the general venue requirements of 28 U.S.C. § 1391 and since the transfer for trial was made on the authority of §1404(a), Milberg argues, this case falls within the second category and should escape reversal because none of Lexecon's substantial rights was prejudicially affected, see §2111. Assuming the distinction may be drawn, however, we think this case bears closer analogy to those in the first category, in which reversal with new trial is required because venue is precluded by the governing statute. </s> Milberg's argument assumes the only kind of statute entitled to respect in accordance with its uncompromising terms is a statute that categorically limits a plaintiff's initial choice of forum. But there is no apparent reason why courts should not be equally bound by a venue statute that just as categorically limits the authority of courts (and special panels) to override a plaintiff's choice. If the former statute creates interests too substantial to be denied without a remedy, the latter statute ought to be recognized as creating interests equally substantial. In each instance the substantiality of the protected interest is attested by a congressional judgment that in the circumstances described in the statute no discretion is to be left to a court faced with an objection to a statutory violation. To render relief discretionary in either instance would be to allow uncorrected defiance of a categorical congressional judgment to become its own justification. Accordingly, just as we agree with Milberg that the strict limitation on venue under, say, §1391(a) (diversity action "may . . . be brought only . . . .") is sufficient to establish the substantial character of any violation, Brief for Respondents Milberg et al. 43 (citing Olberding , supra ), the equally strict remand requirement contained in §1407 should suf fice to establish the substantial significance of any denial of a plaintiff's right to a remand once the pretrial stage has been completed. </s> Nor is Milberg correct that our recent decision in Caterpillar v. Lewis, 519 U. S. ___ (1996), is to the contrary. 5 </s> In that case, which got no new trial, the jurisdictional defect (a lack of complete diversity) had been cured by subsequent events. While the statutory error (failure to comply with the §1441(a) requirement that the case be fit for federal adjudication when the removal petition is filed) "remained in the unerasable history of the case," 519 U. S., at ___ (slip op., at 11), in the sense that it had not been cured within the statutory period, it had otherwise been cured by the time judgment was entered. The instant case is different from that one, inasmuch as there was no continuing defiance of the congressional condition in Caterpillar , but merely an untimely compliance. It was on this understanding that we held that considerations of "finality, efficiency and economy" trumped the error, 519 U. S., at ___ (slip op., at 13). After Caterpillar, therefore, since removal is permissible only where original jurisdiction exists at the time of removal or at the time of the entry of final judgment, the condition contained in the removal statute retains significance. But the §1407(a) mandate would lose all meaning if a party who continuously objected to an uncorrected categorical violation of the mandate could obtain no relief at the end of the day. 6 </s> Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. </s> Footnotes </s> [Footnote * Justice Scalia joins this opinion, except as to Part II-C. [Footnote 1 The Ninth Circuit stopped short of expressly inferring a waiver from Lexecon's failure to file a motion for remand directly with the Panel, and any inference of waiver would surely have been unsound. Although the Panel's Rule 14(c)(i) does authorize a party to file such a motion, Rule 14(d) comes close to saying that only under extraordinary circumstances will such a motion be granted without a suggestion of remand by the transferee court. (The Rule reads, "The Panel is reluctant to order remand absent a suggestion of remand from the transferee district court."). Therefore, even if a party may waive the §1407 remand requirement by failing to request remand from the transferor court, see 28 U.S.C. § 1406(b), Rule 14(d) precludes an inference of waiver from mere failure to request remand from the Panel. In this case, moreover, one can say categorically that a motion before the Panel would have failed; the transferee court denied Lexecon's motion for a remand suggestion simultaneously with an order assigning the case to itself for trial, thus exercising the authority that the Panel's Rule 14(b) expressly purported to recognize. Under the Panel's own rules, in sum, Lexecon never had a chance to waive a thing. [Footnote 2 It is well to note the limitations of a related argument. It may be tempting to say that the incompatibility of a self-assignment under §1404(a) with the Panel's mandate is confirmed by the authority of a transferor court to assign a case to a §1407(a) transferee district for trial if that would be appropriate following pretrial proceedings under §1407(a). But there is one circumstance in which a transferor court would be unable to do that. As noted, transfers under §1407 are not limited by general venue statutes; those under §1404 are. [Footnote 3 See n. supra . [Footnote 4 Because we find that the statutory language of §1407 precludes a transferee court from granting any §1404(a) motion, we have no need to address the question whether §1404(a) permits self-transfer given that statute explicitly provides for transfer only "to another district." 28 U.S.C. § 1404(a). [Footnote 5 In their brief to this Court, Milberg suggests that any decision rejecting multidistrict litigation courts' practice of ruling on §1404 transfer motions should be applied only prospectively under Chevron Oil Co. v. Huson , 404 U.S. 97, 106 -107 (1971). Because this argument was not presented below, see Brief for Milberg Defendants in No. 95-16403 et al. (CA 9), or to this Court when Milberg opposed petitioners' petition for certiorari, see Brief in Opposition for Respondents Milberg et al., it is unnecessary for us to consider it here. Milberg's brief also argues that petitioners are not entitled to relief because the only claim that survived for trial should have been dismissed during pretrial proceedings. We do not address the propriety of the District Court's decision to allow this claim to go forward; the issue falls outside the question on which we granted certiorari. See This Court's Rule 14.1(a) ("Only the questions set forth in the petition, or fairly included therein, will be considered by the Court"). [Footnote 6 Although Cotchett's request for an order of dismissal under Rule 54(b) was not granted until after the Arizona court had assigned the case to itself for trial, there is no reason to reconsider that dismissal order. It was perfectly proper as a pretrial order and, for that matter, was merely the formal reflection of the Arizona court's decision on the merits of the claims that had been resolved prior to that court's decision on the §1404 transfer.

United States Supreme Court MILLS v. LOUISIANA(1959) No. 74 Argued: April 22, 1959Decided: June 8, 1959 </s> [Footnote * Together with No. 75, Mills v. Louisiana, also on certiorari to the same Court. </s> Refusing an offer of full immunity from state prosecution and claiming the federal privilege against self-incrimination, petitioners were convicted of contempt in a state court for refusing to answer before a state grand jury questions the answers to which they claimed would expose them to federal prosecution for violation of the income tax laws. There was evidence of close cooperation between state and federal authorities. Held: The judgments are affirmed on the authority of Knapp v. Schweitzer, 357 U.S. 371 . </s> Affirmed. </s> Eugene Stanley argued the cause for petitioners in No. 74. With him on the brief was Albert B. Koorie. </s> Milo B. Williams argued the cause and filed a brief for petitioner in No. 75. </s> Michael E. Culligan, Assistant Attorney General of Louisiana, and J. David McNeill argued the causes for respondent. With Mr. Culligan on the brief were Jack P. F. Gremillion, Attorney General of Louisiana, and Richard A. Dowling. </s> PER CURIAM. </s> The judgments are affirmed. Knapp v. Schweitzer, 357 U.S. 371 . </s> MR. JUSTICE BRENNAN joins the Court's opinion, reiterating his belief, expressed in Knapp v. Schweitzer, 357 U.S. 371, 381 , that reconsideration of the holding in Feldman v. United States, 322 U.S. 487 , is inappropriate in this case. He also reiterates his belief that nothing [360 U.S. 230, 231] in this decision forecloses reconsideration of the Feldman holding in a case presenting the issue presented by Feldman. </s> MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS concur, dissenting. </s> In Knapp v. Schweitzer, 357 U.S. 371 , the Court left open the question whether in the case of collaboration between state and federal officers a witness could successfully assert the federal privilege against self-incrimination in a state proceeding. In my view, that question should be answered here, for the records in these cases show such collaboration. Yet the majority of the Court ignores the question in affirming without opinion. Therefore, although I agree with and join the dissenting opinion of MR. JUSTICE DOUGLAS, I add these additional views. </s> The petitioners in these cases were held in contempt for failure to answer questions before a state grand jury investigating the bribery of police officials of New Orleans by persons conducting lottery operations within that city. From the nature of the questions asked petitioners, it is evident that they were suspected of engaging in lotteries and giving bribes. The District Attorney of the Parish of Orleans, under authority granted by state statute, offered petitioners full immunity from state prosecution for crimes, other than perjury, uncovered by the questioning. Nevertheless, petitioners refused to answer questions relating to bribery and their connections with lottery operations, pleading in justification of this refusal the federal privilege against self-incrimination. </s> The contempt proceedings and the state court reviews were had upon an agreed statement of facts. These stipulations recited that during the pendency of the state grand jury investigation "the Intelligence Division, Internal Revenue Service of the United States, the United States Attorney for the Eastern District of Louisiana and the [360 U.S. 230, 232] United States Grand Jury [had] been for several months and [were then] engaged in investigating some of the members of the New Orleans Police Department for income tax evasion, a felony under the laws of the United States." In addition, the parties agreed that these investigations were well publicized and that, at the time of the instant proceedings, a number of federal income tax indictments had been returned against police officers. Further, it was established that each of the petitioners had been requested to execute, and had executed, waivers of the statute of limitations on his federal tax liabilities for most of the years in question. Lastly, the parties stipulated: </s> "That there has existed, and now exists [at the time of the state proceeding], cooperation and collaboration between the District Attorney for the Parish of Orleans and the United States Attorney for the Eastern District of Louisiana and the Internal Revenue Service of the United States of America and its investigators, as well as with the Police Bureau of Investigation of the City of New Orleans in reference to members of the New Orleans Police Department regarding public bribery and income tax evasion and that the Honorable Leon D. Hubert, Jr., District Attorney for the Parish of Orleans, has held conferences with the United States Attorney for the Eastern District of Louisiana regarding public bribery on the part of certain members of the New Orleans Police Department and income tax evasion, felonies under the law of the United States of America and the State of Louisiana." </s> In Knapp v. Schweitzer, supra, which decided that the federal privilege against self-incrimination may not ordinarily be raised in a state proceeding, the Court said: </s> "Of course the Federal Government may not take advantage of this recognition of the States' autonomy [360 U.S. 230, 233] in order to evade the Bill of Rights. If a federal officer should be a party to the compulsion of testimony by state agencies, the protection of the Fifth Amendment would come into play. Such testimony is barred in a federal prosecution, see Byars v. United States, 273 U.S. 28 . Whether, in a case of such collaboration between state and federal officers, the defendant could successfully assert his privilege in the state proceeding, we need not now decide, for the record before us is barren of evidence that the State was used as an instrument of federal prosecution or investigation. Petitioner's assertion that a federal prosecuting attorney announced his intention of cooperating with state officials in the prosecution of cases in a general field of criminal law presents a situation devoid of legal significance as a joint state and federal endeavor." 357 U.S., at 380 . </s> I dissented from that decision on the ground that the state court had decided that the federal privilege did not obtain on the seemingly false premise that information adduced in the state proceeding could not be used against the petitioner in a subsequent federal prosecution. But even accepting, for the purpose of argument, the validity of the Knapp result, I am of the view that the question which was not answered there should be considered here and resolved in favor of the petitioners. </s> The Knapp decision when taken in conjunction with Feldman v. United States, 322 U.S. 487 , means that a person can be convicted of a federal crime on the basis of testimony which he is compelled to give in a state investigation. This opens vast opportunities for calculated efforts by state and federal officials working together to force a disclosure in a state proceeding and to convict on the basis of that disclosure in a federal proceeding. Such opportunities will not go unused unless the courts are vigilant to protect the rights of persons who find themselves [360 U.S. 230, 234] faced with such coaction of federal and state prosecuting agencies. Such vigilance becomes increasingly required as the Federal Government, through prosecutions for tax evasion, moves into the criminal areas regulated by the States. * </s> In the instant case the record shows clearly that state and federal authorities had launched a coordinated investigation into the suspected bribery by gamblers of New Orleans' police officers. The State was interested primarily in the enforcement of its public bribery statutes. The Federal Government sought to apprehend tax evaders. The state and federal agencies involved in this two-fold investigation collaborated to obtain desired ends. Policemen suspected of taking bribes and gamblers suspected of giving them were called for questioning. Both were in jeopardy of prosecution: the police under state statute for taking bribes and under federal statute for income tax evasion; the gamblers under state statute for giving bribes and under federal statutes for income tax evasion and for failure to pay the special stamp and excise taxes levied on gambling operations. Doubt which might have existed concerning federal interest in petitioners' possible tax evasions was removed when petitioners were induced to waive the statute of limitations for relevant tax years. </s> The opinion in the Knapp case states that the protection of the Fifth Amendment comes into play if a federal officer is a party to the compulsion of testimony by a state agency. 357 U.S. 371, 380 . The threshold question then is whether the requisite relationship existed between the State District Attorney and the United States Attorney [360 U.S. 230, 235] and Internal Revenue agents. The stipulation, when read in the light of the known facts, adequately shows that federal officers participated in the state action which sought to compel the testimony of petitioners. That stipulation, signed by the state prosecutor, admits of "cooperation," "collaboration," and "conferences." These terms viewed against the background of contemporaneous investigations by a federal grand jury, a state grand jury, the Police Bureau of Investigation of the City of New Orleans, and the Intelligence Division of the Internal Revenue Service, all pointed at a group of persons which included petitioners, require the conclusion that the State was used as an instrument of federal investigation. </s> I come then to the question left open in the Knapp case: whether, where, as here, a State is used as an instrument of federal investigation, witnesses can successfully assert their federal privilege against self-incrimination in state proceedings. Knapp v. Schweitzer, supra, suggests that where testimony is compelled in such circumstances, the testimony would be inadmissible in a subsequent federal prosecution. See Byars v. United States, 273 U.S. 28 . See also Feldman v. United States, 322 U.S. 487, 494 . But this is only partial protection. To compel testimony in a federal investigation, a witness must be assured at the outset complete immunity from any prosecution which might result from his compelled disclosures. Counselman v. Hitchcock, 142 U.S. 547 ; Brown v. Walker, 161 U.S. 591 ; Blau v. United States, 340 U.S. 159 ; Ullmann v. United States, 350 U.S. 422, 430 . There is no indication that such protection obtains here - that petitioners are protected from federal prosecutions which might result from their testimony even though that testimony is not admissible in the subsequent proceeding. Byars v. United States, supra, merely prohibits the introduction of illegally seized evidence and Knapp v. [360 U.S. 230, 236] Schweitzer, supra, and Feldman v. United States, supra, speak merely of the non-use of the compelled testimony in a subsequent federal prosecution. None of these cases deals with the fruits of the compelled testimony, and defendants, like petitioners, who are forced to testify under circumstances similar to those here present, are left without the protection against self-incrimination intended by the Constitution. These cases, in my opinion, should be extended to prohibit any prosecution resulting from disclosures compelled under circumstances similar to those which exist here. But this is not an established principle and a witness is entitled to more than hopes of immunity when federal agencies seek to compel incriminatory testimony. Therefore, in my view, petitioners properly invoked their federal privilege against self-incrimination in the present proceeding and the contempts should be discharged. Cf. Rea v. United States, 350 U.S. 214 ; Bartkus v. Illinois, 359 U.S. 121, 164 (dissenting opinion). </s> [Footnote * Cf. Commissioner v. Wilcox, 327 U.S. 404 ; Rutkin v. United States, 343 U.S. 130 ; United States v. Calamaro, 354 U.S. 351 ; Rollinger v. United States, 208 F.2d 109; Berra v. United States, 221 F.2d 590; Schira v. Commissioner, 240 F.2d 672; United States v. Wampler, 5 F. Supp. 796; United States v. Iozia, 104 F. Supp. 846. </s> MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK concur, dissenting. </s> Petitioners in these cases were summoned before a state grand jury in New Orleans and interrogated concerning bribery of public officials and income tax evasion. They were at the time being investigated by the Federal Internal Revenue Service. Accordingly, they objected to the questions, invoking the Fifth Amendment and stating that the answers to the questions would tend to incriminate them. Their objections were overruled and they were held in contempt for refusal to answer. The Supreme Court of Louisiana refused writs of certiorari, mandamus, and prohibition, finding "no error of law in the ruling complained of." The cases are here on certiorari. 358 U.S. 810 . [360 U.S. 230, 237] </s> It has been the prevailing view since Twining v. New Jersey, 211 U.S. 78 , that the guaranty of the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself" is not made applicable to the States through the Fourteenth Amendment. Adamson v. California, 332 U.S. 46 . Under the Twining rule, the Louisiana courts, therefore, need not bow to the Fifth Amendment as a requirement read into state law by the Bill of Rights. </s> That is not, however, the end of our problem. For the question remains whether a state court can override a claim of federal right seasonably raised in the state proceeding, when the failure to recognize the federal right will result in its destruction or nullification. </s> The classical case involves a federal right in the conduct of a business, as in the case of the contractor in Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 , who, having been the successful bidder for federal construction work, could not be subjected to conflicting state licensing requirements. Related cases are in the class of Service Storage & Transfer Co. v. Virginia, 359 U.S. 171 , and Castle v. Hayes Freight Lines, 348 U.S. 61 , which hold that an interstate motor carrier certificate issued by the Interstate Commerce Commission could not be overridden in state proceedings. Litigants asserting federal rights as the basis of a claim (Testa v. Katt, 330 U.S. 386 ) or as a defense to a claim under state law (Miles v. Illinois Central R. Co., 315 U.S. 698 ) may do so in state courts which must recognize and protect the federal rights. Chief Justice White stated it as the "duty resting upon" state and federal courts "to protect and enforce rights lawfully created, without reference to the particular government from whose exercise of lawful power the right arose." Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 223 . Litigants, resting on a federal right, [360 U.S. 230, 238] need not resort to federal courts to protect those rights where those rights are put in jeopardy in state proceedings. </s> There is no more apt illustration of that principle than the present case. The Fifth Amendment to the Constitution reserves a twofold federal guarantee for every citizen. It protects him from being forced to give testimony in any federal proceeding, criminal or civil (Counselman v. Hitchcock, 142 U.S. 547, 562 ; McCarthy v. Arndstein, 262 U.S. 355, 266 U.S. 34), judicial, investigative or administrative (Quinn v. United States, 349 U.S. 155, 161 ; Smith v. United States, 337 U.S. 137 ), which might tend to incriminate him. And it also assures that no incriminating information adduced from a defendant involuntarily by anyone, anywhere, may be admitted into evidence against him in any federal prosecution. Bram v. United States, 168 U.S. 532 ; Wan v. United States, 266 U.S. 1 . It was to this second principle that the ruling of this Court in Feldman v. United States, 322 U.S. 487 , was unfaithful. As long as that decision is adhered to, the evidence obtained in a state proceeding such as the one in this case can be used in a federal prosecution. It is, therefore, too late to protect the federal right if one waits for action by the federal court. The federal right is lost irretrievably, if it is not saved by the state court. As stated by the Supreme Court of Michigan in People v. DenUyl, 318 Mich. 645, 651, 29 N. W. 2d 284, 287: </s> "It seems like a travesty on verity to say that one is not subjected to self-incrimination when compelled to give testimony in a State judicial proceeding which testimony may forthwith be used against him in a Federal criminal prosecution." </s> If the dissent in Feldman v. United States, supra, had prevailed and testimony compelled from a witness in a state proceeding had been barred from use against him when he became a defendant in a federal proceeding, protection [360 U.S. 230, 239] of the federal right against self-incrimination could be left to the federal courts. But Feldman, until it is overruled, controls the regimes under which state investigations are made and federal prosecutions conducted. As long as it is on the books the only place a witness, who is being examined in state proceedings about matters that may incriminate him under federal laws, can protect his rights against self-incrimination under the Fifth Amendment is in the state courts. </s> Knapp v. Schweitzer, 357 U.S. 371 , is contrary to the disposition I would make of the present cases. But it is not a principled decision that addressed itself to the proposition that unless the federal right is protected in the state proceeding it is lost forever. The opinion in that case was concerned with maintaining the vitality of state investigations. Not once did it mention Feldman v. United States, supra, nor address itself to the dilemma created by that decision. Nowhere does it explain how in light of Feldman v. United States the federal right can be protected and the vitality of state investigations also maintained. I have said enough to indicate that both cannot be done by affirming these judgments. As long as Feldman v. United States stands on the books, the state courts should be required to recognize the federal right against self-incrimination - lest it be lost forever. </s> [360 U.S. 230, 240]

United States Supreme Court O'LEARY v. BROWN-PACIFIC-MAXON(1951) No. 267 Argued: December 7, 1950Decided: February 26, 1951 </s> A contractor, engaged in construction work for the Navy on the Island of Guam, maintained for its employees a recreation center adjoining a channel so dangerous that swimming was forbidden and signs to that effect were erected. After spending the afternoon at the center, an employee was drowned while attempting to swim the channel in order to rescue two men in distress. Under the Longshoremen's and Harbor Workers' Compensation Act, extended to this employee by the Defense Bases Act, the Deputy Commissioner found as a "fact" that the employee's death arose out of and in the course of his employment and awarded a death benefit to his mother. Held: The award is sustained. Pp. 505-509. </s> 1. Such a rescue attempt is not necessarily excluded from the coverage of the Act. Pp. 506-507. </s> 2. Under the Administrative Procedure Act, the Deputy Commissioner's findings should be accepted unless they are unsupported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. Labor Board, ante, p. 474. Pp. 507-508. </s> 3. The evidence was sufficient to support the Deputy Commissioner's finding that the employee acted reasonably in attempting the rescue and that his death may fairly be attributed to the risks of his employment. Pp. 508-509. </s> 182 F.2d 772, reversed. </s> The District Court declined to set aside an award under the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. 1424, as amended, 33 U.S.C. 901 et seq. The Court of Appeals reversed. 182 F.2d 772. This Court granted certiorari. 340 U.S. 849 . Reversed, p. 509. [340 U.S. 504, 505] </s> Morton Hollander argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Clapp and Morton Liftin. </s> Edward S. Franklin argued the cause and filed a brief for respondents. </s> MR. JUSTICE FRANKFURTER delivered the opinion of the Court. </s> In this case we are called upon to review an award of compensation under the Longshoremen's and Harbor Workers' Compensation Act. Act of March 4, 1927, 44 Stat. 1424, as amended, 33 U.S.C. 901 et seq. The award was made on a claim arising from the accidental death of an employee of Brown-Pacific-Maxon, Inc., a government contractor operating on the island of Guam. Brown-Pacific maintained for its employees a recreation center near the shoreline, along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effect erected. John Valak, the employee, spent the afternoon at the center, and was waiting for his employer's bus to take him from the area when he saw or heard two men, standing on the reefs beyond the channel, signaling for help. Followed by nearly twenty others, he plunged in to effect a rescue. In attempting to swim the channel to reach the two men he was drowned. </s> A claim was filed by his dependent mother, based on the Longshoremen's Act and on an Act of August 16, 1941, extending the compensation provisions to certain employment in overseas possessions. 55 Stat. 622, 56 Stat. 1035, as amended, 42 U.S.C. 1651. In due course of the statutory procedure, the Deputy Commissioner found as a "fact" that "at the time of his drowning and [340 U.S. 504, 506] death the deceased was using the recreational facilities sponsored and made available by the employer for the use of its employees and such participation by the deceased was an incident of his employment, and that his drowning and death arose out of and in the course of said employment . . . ." Accordingly, he awarded a death benefit of $9.38 per week. Brown-Pacific and its insurance carrier thereupon petitioned the District Court under 21 of the Act to set aside the award. That court denied the petition on the ground that "there is substantial evidence . . . to sustain the compensation order." On appeal, the Court of Appeals for the Ninth Circuit reversed. It concluded that "The lethal currents were not a part of the recreational facilities supplied by the employer and the swimming in them for the rescue of the unknown man was not recreation. It was an act entirely disconnected from any use for which the recreational camp was provided and not in the course of Valak's employment." 182 F.2d 772, 773. We granted certiorari, 340 U.S. 849 , because the case brought into question judicial review of awards under the Longshoremen's Act in light of the Administrative Procedure Act. </s> The Longshoremen's and Harbor Worker's Act authorizes payment of compensation for "accidental injury or death arising out of and in the course of employment." 2 (2), 44 Stat. 1425, 33 U.S.C. 902 (2). As we read its opinion the Court of Appeals entertained the view that this standard precluded an award for injuries incurred in an attempt to rescue persons not known to be in the employer's service, undertaken in forbidden waters outside the employer's premises. We think this is too restricted an interpretation of the Act. Workmen's compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481 ; Matter of Waters v. Taylor Co., 218 N. Y. 248, 251, 112 N. E. 727, 728. The test of recovery [340 U.S. 504, 507] is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, 1917. A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the "obligations or conditions" of employment create the "zone of special danger" out of which the injury arose. Ibid. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be "one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute." Matter of Babington v. Yellow Taxi Corp., 250 N. Y. 14, 17, 164 N. E. 726, 727; Puttkammer v. Industrial Comm'n, 371 Ill. 497, 21 N. E. 2d 575. This is not to say that there are not cases "where an employee, even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment." Matter of Waters v. Taylor Co., 218 N. Y. at 252, 112 N. E. at 728. We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own. </s> The Deputy Commissioner treated the question whether the particular rescue attempt described by the evidence was one of the class covered by the Act as a question of "fact." Doing so only serves to illustrate once more the variety of ascertainments covered by the blanket term "fact." Here of course it does not connote a simple, external, physical event as to which there is conflicting testimony. The conclusion concerns a combination of happenings and the inferences drawn from them. In part at least, the inferences presuppose applicable standards for assessing the simple, external facts. Yet the standards [340 U.S. 504, 508] are not so severable from the experience of industry nor of such a nature as to be peculiarly appropriate for independent judicial ascertainment as "questions of law." </s> Both sides conceded that the scope of judicial review of such findings of fact is governed by the Administrative Procedure Act. Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. 1001 et seq. The standard, therefore, is that discussed in Universal Camera Corp. v. Labor Board, ante, p. 474. It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole. The District Court recognized this standard. </s> When this Court determines that a Court of Appeals has applied an incorrect principle of law, wise judicial administration normally counsels remand of the cause to the Court of Appeals with instructions to reconsider the record. Compare Universal Camera Corp. v. Labor Board, supra. In this instance, however, we have a slim record and the relevant standard is not difficult to apply; and we think the litigation had better terminate now. Accordingly we have ourselves examined the record to assess the sufficiency of the evidence. </s> We are satisfied that the record supports the Deputy Commissioner's finding. The pertinent evidence was presented by the written statements of four persons and the testimony of one witness. It is, on the whole, consistent and credible. From it the Deputy Commissioner could rationally infer that Valak acted reasonably in attempting the rescue, and that his death may fairly be attributable to the risks of the employment. We do not mean that the evidence compelled this inference; we do not suggest that had the Deputy Commissioner decided against the claimant, a court would have been justified in [340 U.S. 504, 509] disturbing his conclusion. We hold only that on this record the decision of the District Court that the award should not be set aside should be sustained. </s> Reversed. </s> MR. JUSTICE MINTON, with whom MR. JUSTICE JACKSON and MR. JUSTICE BURTON join, dissenting. </s> Liability accrues in the instant case only if the death arose out of and in the course of the employment. This is a statutory provision common to all Workmen's Compensation Acts. There must be more than death and the relationship of employee and employer. There must be some connection between the death and the employment. Not in any common-law sense of causal connection but in the common-sense, everyday, realistic view. The Deputy Commissioner knew that, so he found as a fact that "at the time of his drowning and death the deceased was using the recreational facilities sponsored and made available by the employer for the use of its employees and such participation by the deceased was an incident of his employment . . . ." This finding is false and has no scintilla of evidence or inference to support it. </s> I am unable to understand how this Court can say this is a fact based upon evidence. It is undisputed upon this record that the deceased, at the time he met his death, was outside the recreational area in the performance of a voluntary act of attempted rescue of someone unknown to the record. There can be no inference of liability here unless liability follows from the mere relationship of employer and employee. The attempt to rescue was an isolated, voluntary act of bravery of the deceased in no manner arising out of or in the course of his employment. The only relation his employment had with the attempted rescue and the following death was that his employment put him on the Island of Guam. [340 U.S. 504, 510] </s> I suppose the way to avoid what we said today in Universal Camera Corp. v. Labor Board, ante, p. 474, is to find facts where there are no facts, on the whole record or any piece of it. It sounds a bit hollow to me for the Court, as it does, to quote from the New York case of Matter of Waters v. Taylor Co., 218 N. Y. 248, 252, 112 N. E. 727, 728, "where an employee, even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment." This would seem to indicate that we are leaving some place for voluntary acts of the employees outside the course of their employment for which the employer may not be liable. There surely are such areas, but this case does not recognize them. The employer is liable in this case because he is an employer. </s> I would affirm the judgment of the Court of Appeals. </s> [340 U.S. 504, 511]

United States Supreme Court UNITED STATES et al. v. UNITED FOODS, INC.(2001) No. 00-276 Argued: April 17, 2001Decided: June 25, 2001 </s> The Mushroom Promotion, Research, and Consumer Information Act mandates that fresh mushroom handlers pay assessments used primarily to fund advertisements promoting mushroom sales. Respondent refused to pay the assessment, claiming that it violates the First Amendment. It filed a petition challenging the assessment with the Secretary of Agriculture, and the United States filed an enforcement action in the District Court. After the administrative appeal was denied, respondent sought review in the District Court, which consolidated the two cases. In granting the Government summary judgment, the court found dispositive the decision in Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, that the First Amendment was not violated when agricultural marketing orders, as part of a larger regulatory marketing scheme, required producers of California tree fruit to pay assessments for product advertising. The Sixth Circuit reversed, holding that Glickman did not control because the mandated payments in this case were not part of a comprehensive statutory agricultural marketing program. </s> Held:The assessment requirement violates the First Amendment. Pp. 2-11. </s> (a)Even viewing the expression here as commercial speech, there is no basis under Glickman or this Court's other precedents to sustain the assessments. The First Amendment may prevent the government from, inter alia, compelling individuals to pay subsidies for speech to which they object. See Abood v. Detroit Bd. of Ed., 431 U.S. 209; Keller v. State Bar of Cal., 496 U.S. 1. Such precedents provide the beginning point for analysis here. Respondent wants to convey the message that its brand of mushrooms is superior to those grown by other producers, and it objects to being charged for a contrary message which seems to be favored by a majority of producers. First Amendment values are at serious risk if the government can compel a citizen or group of citizens to subsidize speech on the side that it favors; and there is no apparent principle distinguishing out of hand minor debates about whether a branded mushroom is better than just any mushroom. Thus, the compelled funding here must pass First Amendment scrutiny. Pp. 3-5. </s> (b)The program sustained in Glickman differs from the one at issue here in a fundamental respect: The mandated assessments for speech in that case were ancillary to a more comprehensive program restricting marketing autonomy. This Court stressed in Glickman that the entire regulatory program must be considered in resolving a case. There, California tree fruits were marketed under detailed marketing orders that had displaced competition to such an extent that they had an antitrust exemption; the Court presumed that the producers compelled to contribute funds for cooperative advertising were bound together and required by statute to market their products according to cooperative rules. Those important features are not present here. Most of the funds at issue are used for generic advertising; and there are no marketing orders regulating mushroom production and sales, no antitrust exemption, and nothing preventing individual producers from making their own marketing decisions. Mushroom growers are not forced to associate as a group that makes cooperative decisions. Although respondent is required simply to support speech by others, not to utter speech itself, that mandated support is contrary to the First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech but, nevertheless, must remain group members by law or necessity. See, e.g., Abood, supra, Keller, supra. Properly applied, Abood's rule protecting against compelled assessments for some speech requires this scheme to be invalidated. Before addressing whether a conflict with freedom of belief exists, the threshold inquiry must be whether there is some state imposed obligation making group membership less than voluntary; for it is only the overriding associational purpose which allows any compelled subsidy for speech in the first place. In Abood, Keller, and Glickman, the objecting members were required to associate for purposes other than the compelled subsidies for speech. Here, however, the only program the Government contends the assessments serve is the very advertising scheme in question. Were it sufficient to say speech is germane to itself, Abood's and Keller's limits would be empty of meaning and significance. No corollary to Glickman's cooperative marketing structure exists here; the expression respondent is required to support is not germane to an association's purpose independent from the speech itself; and Abood's rationale extends to the party who objects to the compelled support for this speech. There is also no suggestion here that the assessments are necessary to make voluntary advertisements nonmisleading for consumers. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, distinguished. Because the Government did not raise in the Sixth Circuit its theory that this case is permissible government speech, this Court will not entertain that argument here. Pp. 5-11. </s> 197 F.3d 221, affirmed. </s> Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, Scalia, Souter, and Thomas, JJ., joined. Stevens, J., and Thomas, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined, and in which O'Connor, J., joined as to Parts I and III. </s> UNITED STATES and DEPARTMENT OF AGRICULTURE, PETITIONERS v.UNITED FOODS, INC. </s> on writ of certiorari to the united states court of appeals for the sixth circuit </s> [June 25, 2001] </s> Justice Kennedy delivered the opinion of the Court. </s> Four Terms ago, in Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), the Court rejected a First Amendment challenge to the constitutionality of a series of agricultural marketing orders that, as part of a larger regulatory marketing scheme, required producers of certain California tree fruit to pay assessments for product advertising. In this case a federal statute mandates assessments on handlers of fresh mushrooms to fund advertising for the product. The Court of Appeals for the Sixth Circuit determined the mandated payments were not part of a more comprehensive statutory program for agricultural marketing, thus dictating a different result than in Glickman. It held the assessment requirement unconstitutional, and we granted certiorari. 530 U.S. 1009 (2000). </s> The statute in question, enacted by Congress in 1990, is the Mushroom Promotion, Research, and Consumer Information Act, 104 Stat. 3854, 7 U.S.C. §6101 et seq. The Act authorizes the Secretary of Agriculture to establish a Mushroom Council to pursue the statute's goals. Mushroom producers and importers, as defined by the statute, submit nominations from among their group to the Secretary, who then designates the Council membership. 7 U.S.C. §§6104(b)(1)(B), 6102(6), 6102(11). To fund its programs, the Act allows the Council to impose mandatory assessments upon handlers of fresh mushrooms in an amount not to exceed one cent per pound of mushrooms produced or imported. §6104(g)(2). The assessments can be used for "projects of mushroom promotion, research, consumer information, and industry information." §6104(c)(4). It is undisputed, though, that most monies raised by the assessments are spent for generic advertising to promote mushroom sales. </s> Respondent United Foods, Inc., is a large agricultural enterprise based in Tennessee. It grows and distributes many crops and products, including fresh mushrooms. In 1996 respondent refused to pay its mandatory assessments under the Act. The forced subsidy for generic advertising, it contended, is a violation of the First Amendment. Respondent challenged the assessments in a petition filed with the Secretary. The United States filed an action in the United States District Court for the Western District of Tennessee, seeking an order compelling respondent to pay. Both matters were stayed pending this Court's decision in Glickman. </s> After Glickman was decided, the Administrative Law Judge dismissed respondent's petition, and the Judicial Officer of the Department of Agriculture affirmed. Respondent sought review in District Court, and its suit was consolidated with the Government's enforcement action. The District Court, holding Glickman dispositive of the First Amendment challenge, granted the Government's motion for summary judgment. App. to Pet. for Cert. 18a. </s> The Court of Appeals for the Sixth Circuit held this case is not controlled by Glickman and reversed the District Court. 197 F.3d 221 (1999). We agree with the Court of Appeals and now affirm. </s> A quarter of a century ago, the Court held that commercial speech, usually defined as speech that does no more than propose a commercial transaction, is protected by the First Amendment. Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976). "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish." Edenfield v. Fane, 507 U.S. 761, 767 (1993). </s> We have used standards for determining the validity of speech regulations which accord less protection to commercial speech than to other expression. See, e.g., Ibid.; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557 (1980). That approach, in turn, has been subject to some criticism. See, e.g., Glickman, supra, at 504 (Thomas, J., dissenting); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring in part and concurring in judgment); Rubin v. Coors Brewing Co., 514 U.S. 476, 493 (1995) (Stevens, J., concurring in judgment). We need not enter into the controversy, for even viewing commercial speech as entitled to lesser protection, we find no basis under either Glickman or our other precedents to sustain the compelled assessments sought in this case. It should be noted, moreover, that the Government itself does not rely upon Central Hudson to challenge the Court of Appeals' decision, Reply Brief for Petitioners 9, n.7, and we therefore do not consider whether the Government's interest could be considered substantial for purposes of the Central Hudson test. The question is whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced. </s> Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views, see Wooley v. Maynard, 430 U.S. 705, 714 (1977); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), or from compelling certain individuals to pay subsidies for speech to which they object. See Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977); Keller v. State Bar of Cal., 496 U.S. 1 (1990); see also Glickman, 521 U.S, at 469, n.13. Our precedents concerning compelled contributions to speech provide the beginning point for our analysis. The fact that the speech is in aid of a commercial purpose does not deprive respondent of all First Amendment protection, as held in the cases already cited. The subject matter of the speech may be of interest to but a small segment of the population; yet those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups in a society which values the freedom resulting from speech in all its diverse parts. First Amendment concerns apply here because of the requirement that producers subsidize speech with which they disagree. </s> "[T]he general rule is that the speaker and the audience, not the government, assess the value of the information presented." Edenfield, supra, at 767. There are some instances in which compelled subsidies for speech contradict that constitutional principle. Here the disagreement could be seen as minor: Respondent wants to convey the message that its brand of mushrooms is superior to those grown by other producers. It objects to being charged for a message which seems to be favored by a majority of producers. The message is that mushrooms are worth consuming whether or not they are branded. First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors; and there is no apparent principle which distinguishes out of hand minor debates about whether a branded mushroom is better than just any mushroom. As a consequence, the compelled funding for the advertising must pass First Amendment scrutiny. </s> In the Government's view the assessment in this case is permitted by Glickman because it is similar in important respects. It imposes no restraint on the freedom of an objecting party to communicate its own message; the program does not compel an objecting party (here a corporate entity) itself to express views it disfavors; and the mandated scheme does not compel the expression of political or ideological views. See Glickman, 521 U.S., at 469-470. These points were noted in Glickman in the context of a different type of regulatory scheme and are not controlling of the outcome. The program sustained in Glickman differs from the one under review in a most fundamental respect. In Glickman the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing autonomy. Here, for all practical purposes, the advertising itself, far from being ancillary, is the principal object of the regulatory scheme. </s> In Glickman we stressed from the very outset that the entire regulatory program must be considered in resolving the case. In deciding that case we emphasized "the importance of the statutory context in which it arises." 521 U.S., at 469. The California tree fruits were marketed "pursuant to detailed marketing orders that ha[d] displaced many aspects of independent business activity." Id., at 469. Indeed, the marketing orders "displaced competition" to such an extent that they were "expressly exempted from the antitrust laws." Id., at 461. The market for the tree fruit regulated by the program was characterized by "[c]ollective action, rather than the aggregate consequences of independent competitive choices." Ibid. The producers of tree fruit who were compelled to contribute funds for use in cooperative advertising "d[id] so as a part of a broader collective enterprise in which their freedom to act independently [wa]s already constrained by the regulatory scheme." Id., at 469. The opinion and the analysis of the Court proceeded upon the premise that the producers were bound together and required by the statute to market their products according to cooperative rules. To that extent, their mandated participation inan advertising program with a particular message wasthe logical concomitant of a valid scheme of economic regulation. </s> The features of the marketing scheme found important in Glickman are not present in the case now before us. As respondent notes, and as the Government does not contest, cf. Brief for Petitioners 25, almost all of the funds collected under the mandatory assessments are for one purpose: generic advertising. Beyond the collection and disbursement of advertising funds, there are no marketing orders that regulate how mushrooms may be produced and sold, no exemption from the antitrust laws, and nothing preventing individual producers from making their own marketing decisions. As the Court of Appeals recognized, there is no "heavy regulation through marketing orders" in the mushroom market. 197 F.3d, at 225. Mushroom producers are not forced to associate as a group which makes cooperative decisions. "[T]he mushroom growing business ... is unregulated, except for the enforcement of a regional mushroom advertising program," and "the mushroom market has not been collectivized, exempted from antitrust laws, subjected to a uniform price, or otherwise subsidized through price supports or restrictions on supply." Id., at 222, 223. </s> It is true that the party who protests the assessment here is required simply to support speech by others, not to utter the speech itself. We conclude, however, that the mandated support is contrary to the First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity. See, e.g., Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977); Keller v. State Bar of Cal., 496 U.S. 1 (1990). </s> The Government claims that, despite the lack of cooperative marketing, the Abood rule protecting against compelled assessments for some speech is inapplicable. We did say in Glickman that Abood "recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's `freedom of belief.'" 521 U.S., at 471 (quoting Abood, 431 U.S., at 235). We take further instruction, however, from Abood's statement that speech need not be characterized as political before it receives First Amendment protection. Id., at 232. A proper application of the rule in Abood requires us to invalidate the instant statutory scheme. Before addressing whether a conflict with freedom of belief exists, a threshold inquiry must be whether there is some state imposed obligation which makes group membership less than voluntary; for it is only the overriding associational purpose which allows any compelled subsidy for speech in the first place. In Abood, the infringement upon First Amendment associational rights worked by a union shop arrangement was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress." Id., at 222. To attain the desired benefit of collective bargaining, union members and nonmembers were required to associate with one another, and the legitimate purposes of the group were furthered by the mandated association. </s> A similar situation obtained in Keller v. State Bar of Cal., supra. A state-mandated, integrated bar sought to ensure that "all of the lawyers who derive benefit from the unique status of being among those admitted to practice before the courts [were] called upon to pay a fair share of the cost." Id., at 12. Lawyers could be required to pay monies in support of activities that were germane to the reason justifying the compelled association in the first place, for example expenditures (including expenditures for speech) that related to "activities connected with disciplining members of the Bar or proposing ethical codes for the profession." Id., at 16. Those who were required to pay a subsidy for the speech of the association already were required to associate for other purposes, making the compelled contribution of monies to pay for expressive activities a necessary incident of a larger expenditure for an otherwise proper goal requiring the cooperative activity. The central holding in Keller, moreover, was that the objecting members were not required to give speech subsidies for matters not germane to the larger regulatory purpose which justified the required association. </s> The situation was much the same in Glickman. As noted above, the market for tree fruit was cooperative. To proceed, the statutory scheme used marketing orders that to a large extent deprived producers of their ability to compete and replaced competition with a regime of cooperation. The mandated cooperation was judged by Congress to be necessary to maintain a stable market. Given that producers were bound together in the common venture, the imposition upon their First Amendment rights caused by using compelled contributions for germane advertising was, as in Abood and Keller, in furtherance of an otherwise legitimate program. Though four Justices who join this opinion disagreed, the majority of the Court in Glickman found the compelled contributions were nothing more than additional economic regulation, which did not raise First Amendment concerns. Glickman, 521 U.S., at 474; see id., at 477 (Souter, J., dissenting). </s> The statutory mechanism as it relates to handlers of mushrooms is concededly different from the scheme in Glickman; here the statute does not require group action, save to generate the very speech to which some handlers object. In contrast to the program upheld in Glickman, where the Government argued the compelled contributions for advertising were "part of a far broader regulatory system that does not principally concern speech," Reply Brief for Petitioner, O. T. 1996, No. 95-1184, p. 4, there is no broader regulatory system in place here. We have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself. Although greater regulation of the mushroom market might have been implemented under the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, 7 U.S.C. §601 et seq., the compelled contributions for advertising are not part of some broader regulatory scheme. The only program the Government contends the compelled contributions serve is the very advertising scheme in question. Were it sufficient to say speech is germane to itself, the limits observed in Abood and Keller would be empty of meaning and significance. The cooperative marketing structure relied upon by a majority of the Court in Glickman to sustain an ancillary assessment finds no corollary here; the expression respondent is required to support is not germane to a purpose related to an association independent from the speech itself; and the rationale of Abood extends to the party who objects to the compelled support for this speech. For these and other reasons we have set forth, the assessments are not permitted under the First Amendment. </s> Our conclusions are not inconsistent with the Court's decision in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), a case involving attempts by a State to prohibit certain voluntary advertising by licensed attorneys. The Court invalidated the restrictions in substantial part but did permit a rule requiring that attorneys who advertised by their own choice and who referred to contingent fees should disclose that clients might be liable for costs. Noting that substantial numbers of potential clients might be misled by omission of the explanation, the Court sustained the requirement as consistent with the State's interest in "preventing deception of consumers." Id., at 651. There is no suggestion in the case now before us that the mandatory assessments imposed to require one group of private persons to pay for speech by others are somehow necessary to make voluntary advertisements nonmisleading for consumers. </s> The Government argues the advertising here is government speech, and so immune from the scrutiny we would otherwise apply. As the Government admits in a forthright manner, however, this argument was "not raised or addressed" in the Court of Appeals. Brief for Petitioners 32, n.19. The Government, citing Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 (1995), suggests that the question is embraced within the question set forth in the petition for certiorari. In Lebron, the theory presented by the petitioner in the brief on the merits was addressed by the court whose judgmentwas being reviewed. Id., at 379. Here, by contrast, it is undisputed that the Court of Appeals did not mentionthe government speech theory now put forward for our consideration. </s> The Government's failure to raise its argument in the Court of Appeals deprived respondent of the ability to address significant matters that might have been difficult points for the Government. For example, although the Government asserts that advertising is subject to approval by the Secretary of Agriculture, respondent claims the approval is pro forma. This and other difficult issues would have to be addressed were the program to be labeled, and sustained, as government speech. </s> We need not address the question, however. Although in some instances we have allowed a respondent to defend a judgment on grounds other than those pressed or passed upon below, see, e.g., United States v. Estate of Romani, 523 U.S. 517, 526, n.11 (1998), it is quite a different matter to allow a petitioner to assert new substantive arguments attacking, rather than defending, the judgment when those arguments were not pressed in the court whose opinion we are reviewing, or at least passed upon by it. Just this Term we declined an invitation by an amicus to entertain new arguments to overturn a judgment, see Lopez v. Davis, 531 U.S. 230, 244, n.6 (2001), and we consider it the better course to decline a party's suggestion for doing so in this case. </s> For the reasons we have discussed, the judgment of the Court of Appeals is </s> Affirmed. </s> UNITED STATES and DEPARTMENT OF AGRICULTURE, PETITIONERS v.UNITED FOODS, INC. </s> on writ of certiorari to the united states court of appeals for the sixth circuit </s> [June 25, 2001] </s> Justice Stevens, concurring. </s> Justice Breyer has correctly noted that the program at issue in this case, like that in Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), "does not compel speech itself; it compels the payment of money." Post, at 7-8 (dissenting opinion). This fact suffices to distinguish these compelled subsidies from the compelled speech in cases like West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), and Wooley v. Maynard, 430 U.S. 705 (1977). It does not follow, however, that the First Amendment is not implicated when a person is forced to subsidize speech to which he objects. Keller v. State Bar of Cal., 496 U.S. 1, 13-14 (1990). As we held in Glickman, Keller, and a number of other cases, such a compelled subsidy is permissible when it is ancillary, or "germane," to a valid cooperative endeavor. The incremental impact on the liberty of a person who has already surrendered far greater liberty to the collective entity (either voluntarily or as a result of permissible compulsion) does not, in my judgment, raise a significant constitutional issue if it is ancillary to the main purpose of the collective program. </s> This case, however, raises the open question whether such compulsion is constitutional when nothing more than commercial advertising is at stake. The naked imposition of such compulsion, like a naked restraint on speech itself, seems quite different to me.** We need not decide whether other interests, such as the health or artistic concerns mentioned by Justice Breyer, post, at 10, might justify a compelled subsidy like this, but surely the interest in making one entrepreneur finance advertising for the benefit of his competitors, including some who are not required to contribute, is insufficient. </s> UNITED STATES and DEPARTMENT OF AGRICULTURE, PETITIONERS v.UNITED FOODS, INC. </s> on writ of certiorari to the united states court of appeals for the sixth circuit </s> [June 25, 2001] </s> Justice Thomas, concurring. </s> I agree with the Court that Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), is not controlling. I write separately, however, to reiterate my views that "paying money for the purposes of advertising involves speech," and that "compelling speech raises a First Amendment issue just as much as restricting speech." Id., at 504 (Thomas, J., dissenting). Any regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny. </s> UNITED STATES and DEPARTMENT OF AGRICULTURE, PETITIONERS v.UNITED FOODS, INC. </s> on writ of certiorari to the united states court of appeals for the sixth circuit </s> [June 25, 2001] </s> Justice Breyer, with whom Justice Ginsburg joins, and with whom Justice O'Connor joins as to Parts I and III, dissenting. </s> The Court, in my view, disregards controlling precedent, fails properly to analyze the strength of the relevant regulatory and commercial speech interests, and introduces into First Amendment law an unreasoned legal principle that may well pose an obstacle to the development of beneficial forms of economic regulation. I consequently dissent. </s> I </s> Only four years ago this Court considered a case very similar to this one, Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997). The issue there, like here, was whether the First Amendment prohibited the Government from collecting a fee for collective product advertising from an objecting grower of those products (nectarines, peaches, and plums). We held that the collection of the fee did not "rais[e] a First Amendment issue for us to resolve," but rather was "simply a question of economic policy for Congress and the Executive to resolve." Id., at 468. We gave the following reasons in support of our conclusion: </s> "First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views." Id., at 469-470. </s> This case, although it involves mushrooms rather than fruit, is identical in each of these three critical respects. No one, including the Court, claims otherwise. And I believe these similar characteristics demand a similar conclusion. </s> The Court sees an important difference in what it says is the fact that Wileman's fruit producers were subject to regulation (presumably price and supply regulation) that "`displaced competition,'" to the "extent that they were `expressly exempted from the antitrust laws.'" Ante, at 5 (quoting 521 U.S., at 461). The mushroom producers here, it says, are not "`subjected to a uniform price, ... restrictio[n] on supply,'" ante, at 6 (quoting 197 F.3d 221, 222, 223 (CA6 1999)), or any other "common venture" that "depriv[es]" them of the "ability to compete," ante, at 8. And it characterizes this difference as "fundamental." Ante, at 5. </s> But the record indicates that the difference to which the Court points could not have been critical. The Court in Wileman did not refer to the presence of price or output regulations. It referred to the fact that Congress had "authorized" that kind of regulation. 521 U.S., at 462 (emphasis added). See also id., at 461 (citing agricultural marketing statute while noting that marketing orders issued under its authority "may include" price and quantity controls (emphasis added)). Both then-existing federal regulations and Justice Souter's dissenting opinion make clear that, at least in respect to some of Wileman's marketing orders, price and output regulations, while "authorized," were not, in fact, in place. See 7 CFR pts. 916, 917 (1997) (setting forth container, packaging, grade, and size regulations, but not price and output regulations); 521 U.S., at 500, n.13 (souter, J., dissenting) (noting that "the extent to which the Act eliminates competition varies among different marketing orders"). In this case, just as in Wileman, the Secretary of Agriculture is authorized to promulgate price and supply regulations. See ante, at 9 ("greater regulation of the mushroom market might have been implemented under the Agricultural Marketing Agreement Act of 1937"); 7 U.S.C. §§608c(2), (6)(A), (7). But in neither case has she actually done so. Perhaps that is why the Court in Wileman did not rely heavily upon the existence of the Secretary's authority to regulate prices or output. See 521 U.S., at 469 (noting statutory scheme in passing). </s> Regardless, it is difficult to understand why the presence or absence of price and output regulations could make a critical First Amendment difference. The Court says that collective fruit advertising (unlike mushroom advertising) was the "logical concomitant" of the more comprehensive "economic" regulatory "scheme." Ante, at 6. But it does not explain how that could be so. Producer price-fixing schemes seek to keep prices higher than market conditions might otherwise dictate, as do restrictions on supply. Antitrust exemptions are a "logical concomitant," for otherwise the price or output agreement might be held unlawful. But collective advertising has no obvious comparable connection. As far as Wileman or the record here suggests, collective advertising might, or might not, help bring about prices higher than market conditions would otherwise dictate. Certainly nothing in Wileman suggests the contrary. Cf. 521 U.S., at 477 (Souter, J., dissenting) (criticizing the Court for not requiring advertising program to be "reasonably necessary to implement the regulation"). </s> By contrast, the advertising here relates directly, not in an incidental or subsidiary manner, to the regulatory program's underlying goal of "maintain[ing] and expand[ing] existing markets and uses for mushrooms." 7 U.S.C. §6101(b)(2). As the Mushroom Act's economic goals indicate, collective promotion and research is a perfectly traditional form of government intervention in the marketplace. Promotion may help to overcome inaccurate consumer perceptions about a product. See Hearings on H.R. 1776 etal. before the Subcommittee on Domestic Marketing, Consumer Relations, and Nutrition of the House Committee on Agriculture, 101st Cong., 1st Sess., 99 (1989) (hereinafter Hearings) (statement of Rep. Grant) (noting need to overcome consumer fears about safety of eating mushrooms and that per capita mushroom consumption in Canada was twice that of United States). Overcoming those perceptions will sometimes bring special public benefits. See 7 U.S.C. §§6101(a)(1)-(3) (mushrooms are "valuable part of the human diet," and their production "benefits the environment"). And compelled payment may be needed to produce those benefits where, otherwise, some producers would take a free ride on the expenditures of others. See Hearings 95-96 (statement of James Ciarrocchi) ("The ... industry has embarked on several voluntary promotion campaigns over the years.... [A] lesson from every one ... has been unreliability, inefficiency, and inequities of voluntary participation"). </s> Compared with traditional "command and control," price, or output regulation, this kind of regulation--which relies upon self-regulation through industry trade associations and upon the dissemination of information--is more consistent, not less consistent, with producer choice. It is difficult to see why a Constitution that seeks to protect individual freedom would consider the absence of "heavy regulation," ante, at 6, to amount to a special, determinative reason for refusing to permit this less intrusive program. If the Court classifies the former, more comprehensive regulatory scheme as "economic regulation" for First Amendment purposes, it should similarly classify the latter, which does not differ significantly but for the comparatively greater degree of freedom that it allows. </s> The Court invokes in support of its conclusion other First Amendment precedent, namely, Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), Keller v. State Bar of Cal., 496 U.S. 1 (1990), West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), and Wooley v. Maynard, 430 U.S. 705 (1977). But those cases are very different. The first two, Abood and Keller, involved compelled contributions by employees to trade unions and by lawyers to state bar associations, respectively. This Court held that the compelled contributions were unlawful (1) to the extent that they helped fund subsidiary activities of the organization, i.e., activities other than those that legally justified a compelled contribution; and (2) because the subsidiary activities in question were political activities that might "conflict with one's `freedom of belief.'" Wileman, supra, at 471 (quoting Abood, supra, at 235). See Keller, supra, at 15 (communications involving abortion, prayer in the public schools, and gun control); Abood, supra, at 213 (communications involving politics and religion). </s> By contrast, the funded activities here, like identical activities in Wileman, do not involve this kind of expression. In Wileman we described the messages at issue as incapable of "engender[ing] any crisis of conscience" and the producers' objections as "trivial." 521 U.S., at 471, 472. The messages here are indistinguishable. Compare Brief for Respondent 10-11 (objecting to advertising because it treats branded and unbranded mushrooms alike, associates mushrooms "with the consumption of alcohol and ... tout[s] mushrooms as an aphrodisiac"), with Wileman, supra, at 467, n.10 (dismissing objections to advertising that suggested "`all varieties of California fruit to be of equal quality,'" and included "`sexually subliminal messages as evidenced by an ad depicting a young girl in a wet bathing suit'") (quoting District Court opinion). See also Appendix, infra. The compelled contribution here relates directly to the regulatory program's basic goal. </s> Neither does this case resemble either Barnette or Wooley. Barnette involved compelling children, contrary to their conscience, to salute the American flag. 471 U.S. 626, 651 (1985) (refusing to apply Wooley and Barnette in a commercial context where "the interests at stake in this case are not of the same order"). We explained: </s> "The use of assessments to pay for advertising does not require respondents to repeat an objectionable message out of their own mouths, cf. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943), require them to use their own property to convey an antagonistic ideological message, cf. Wooley v. Maynard, 430 U.S. 705 (1977); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 18 (1986) (plurality opinion), force them to respond to a hostile message when they `would prefer to remain silent,' see ibid., or require them to be publicly identified or associated with another's message, cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 88 (1980). Respondents are ... merely required to make contributions for advertising." Wileman, supra, at 470-471. </s> These statements are no less applicable to the present case. How can the Court today base its holding on Barnette, Wooley, Abood, and Keller--the very same cases that we expressly distinguished in Wileman? </s> II </s> Nearly every human action that the law affects, and virtually all governmental activity, involves speech. For First Amendment purposes this Court has distinguished among contexts in which speech activity might arise, applying special speech-protective rules and presumptions in some of those areas, but not in others. See, e.g., Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000) (indicating that less restrictive rules apply to governmental speech); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 564 (1980) (commercial speech subject to "mid-level" scrutiny); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968) (applying special rules applicable to speech of government employees). Were the Court not to do so--were it to apply the strictest level of scrutiny in every area of speech touched by law--it would, at a minimum, create through its First Amendment analysis a serious obstacle to the operation of well-established, legislatively created, regulatory programs, thereby seriously hindering the operation of that democratic self-government that the Constitution seeks to create and to protect. Cf. Post, The Constitutional Status of Commercial Speech, 48 UCLA L. Rev. 1, 9-10 (2000). </s> That, I believe, is why it is important to understand that the regulatory program before us is a "species of economic regulation," Wileman, 521 U.S., at 477, which does not "warrant special First Amendment scrutiny," id., at 474. Irrespective of Wileman I would so characterize the program for three reasons. </s> First, the program does not significantly interfere with protected speech interests. It does not compel speech itself; it compels the payment of money. Money and speech are not identical. Cf. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 388-389 (2000); id., at 398 (Stevens, J., concurring) ("Money is property; it is not speech"); id., at 400 (Breyer, J., concurring) ("[A] decision to contribute money to a campaign is a matter of First Amendment concern--not because money is speech (it is not); but because it enables speech"). Indeed, the contested requirement--that individual producers make a payment to help achieve a governmental objective--resembles a targeted tax. See Southworth, 461 U.S. 540, 547 (1983) ("Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes"). </s> Second, this program furthers, rather than hinders, the basic First Amendment "commercial speech" objective. The speech at issue amounts to ordinary product promotion within the commercial marketplace--an arena typically characterized both by the need for a degree of public supervision and the absence of a special democratic need to protect the channels of public debate, i.e., the communicative process itself. Cf. Post, supra, at 14-15. No one here claims that the mushroom producers are restrained from contributing to a public debate, moving public opinion, writing literature, creating art, invoking the processes of democratic self-government, or doing anything else more central to the First Amendment's concern with democratic self-government. </s> When purely commercial speech is at issue, the Court has described the First Amendment's basic objective as protection of the consumer's interest in the free flow of truthful commercial information. See, e.g., Edenfield v. Fane, 507 U.S. 761, 766 (1993) ("First Amendment coverage of commercial speech is designed to safeguard" society's "interes[t] in broad access to complete and accurate commercial information"); Zauderer, 435 U.S. 765, 783 (1978) ("A commercial advertisement is constitutionally protected not so much because it pertains to the seller's business as because it furthers the societal interest in the `free flow of commercial information'") (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976)). Unlike many of the commercial speech restrictions this Court has previously addressed, the program before us promotes the dissemination of truthful information to consumers. And to sustain the objecting producer's constitutional claim will likely make less information, not more information, available. Perhaps that is why this Court has not previously applied "compelled speech" doctrine to strike down laws requiring provision of additional commercial speech. </s> Third, there is no special risk of other forms of speech-related harm. As I have previously pointed out, and Wileman held, there is no risk of significant harm to an individual's conscience. Supra, at 5-7. The program does not censor producer views unrelated to its basic regulatory justification. Supra, at 2. And there is little risk of harming any "discrete, little noticed grou[p]." Ante, at 4. The Act excludes small producers, 7 U.S.C. §§6102(6), (11) (exempting those who import or produce less than 500,000 pounds of mushrooms annually)--unlike respondent, a large, influential corporation. The Act contains methods for implementing its requirements democratically. See §§6104(b)(1)(B), (g)(2) (Mushroom Council, which sets assessment rate, is composed entirely of industry representatives); §§6105(a), (b) (referendum required before Secretary of Agriculture's order can go into effect and five years thereafter, and producers may request additional referenda). And the Act provides for supervision by the Secretary. §6104(d)(3) (requiring Secretary to approve all advertising programs). See also Wileman, 521 U.S., at 477 (refusing to upset "the judgment of the majority of market participants, bureaucrats, and legislators who have concluded that [collective advertising] programs are beneficial"). These safeguards protect against abuse of the program, such as "making one entrepreneur finance advertising for the benefit of his competitors." Ante, at 2 (Stevens, J., concurring). Indeed, there is no indication here that the generic advertising promotes some brands but not others. And any "debat[e]" about branded versus nonbranded mushrooms, ante, at 5 (majority opinion), is identical to that in Wileman. Supra, at 5-6. </s> Taken together, these circumstances lead me to classify this common example of government intervention in the marketplace as involving a form of economic regulation, not "commercial speech," for purposes of applying First Amendment presumptions. And seen as such, I cannot find the program lacks sufficient justification to survive constitutional scrutiny. Wileman, supra, at 476-477. </s> The Court, in applying stricter First Amendment standards and finding them violated, sets an unfortunate precedent. That precedent suggests, perhaps requires, striking down any similar program that, for example, would require tobacco companies to contribute to an industry fund for advertising the harms of smoking or would use a portion of museum entry charges for a citywide campaign to promote the value of art. Moreover, because of its uncertainty as to how much governmental involvement will produce a form of immunity under the "government speech" doctrine, see ante, at 10-11, the Court infects more traditional regulatory requirements--those related, say, to warranties or to health or safety information--with constitutional doubt. </s> Alternatively, the Court's unreasoned distinction between heavily regulated and less heavily regulated speakers could lead to less First Amendment protection in that it would deprive the former of protection. But see Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 534, n.1 (1980) (Even "heavily regulated businesses may enjoy constitutional protection") (citing, as an example, Virginia Bd. of Pharmacy, supra, at 763-765). </s> At a minimum, the holding here, when contrasted with that in Wileman, creates an incentive to increase the Government's involvement in any information-based regulatory program, thereby unnecessarily increasing the degree of that program's restrictiveness. I do not believe the First Amendment seeks to limit the Government's economic regulatory choices in this way--any more than does the Due Process Clause. Cf. Lochner v. New York, 198 U.S. 45 (1905). </s> III </s> Even if I were to classify the speech at issue here as "commercial speech" and apply the somewhat more stringent standard set forth in the Court's commercial speech cases, I would reach the same result. That standard permits restrictions where they "directly advance" a "substantial" government interest that could not "be served as well by a more limited restriction." Central Hudson, 447 U.S., at 564. I have already explained why I believe the Government interest here is substantial, at least when compared with many typical regulatory goals. Supra, at 4. It remains to consider whether the restrictions are needed to advance its objective. </s> Several features of the program indicate that its speech-related aspects, i.e., its compelled monetary contributions, are necessary and proportionate to the legitimate promotional goals that it seeks. At the legislative hearings that led to enactment of the Act, industry representatives made clear that pre-existing efforts that relied upon voluntary contributions had not worked. Thus, compelled contributions may be necessary to maintain a collective advertising program in that rational producers would otherwise take a free ride on the expenditures of others. See supra, at 4; Abood, 431 U.S., at 222 (relying upon "free rider" justification in union context). </s> At the same time, those features of the program that led Wileman's dissenters to find its program disproportionately restrictive are absent here. Wileman's statutory scheme covered various different agricultural commodities and imposed a patchwork of geographically based limitations while "prohibit[ing] orders of national scope"--all for no apparent reason. 521 U.S., at 499 (Souter, J., dissenting). The law at issue here, however, applies only to mushrooms, and says explicitly that "[a]ny" mushroom order "shall be national in scope." 7 U.S.C. §6103(a). Cf. Wileman, supra, at 493 (Souter, J., dissenting) ("[I]f the Government were to attack these problems across an interstate market for a given agricultural commodity or group of them, the substantiality of the national interest would not be open to apparent question ..."). </s> Nor has the Government relied upon "[m]ere speculation" about the effect of the advertising. Wileman, supra, at 501 (Souter, J., dissenting). Rather, it has provided empirical evidence demonstrating the program's effect. See Food Marketing & Economics Group, Mushroom Council Program Effectiveness Review, 1999, p.6 (Feb. 2000), lodging for United States (available in Clerk of Court's case file) (finding that "for every million dollars spent by the Mushroom Council ... the growth rate [of mushroom sales] increases by 2.1%"). In consequence, whatever harm the program may cause First Amendment interests is proportionate. Cf. Bartnicki v. Vopper, 532 U.S. ___ (2001) (Breyer, J., concurring). </s> The Court's decision converts "a question of economic policy for Congress and the Executive" into a "First Amendment issue," contrary to Wileman. 521 U.S., at 468 (internal quotation marks and citation omitted). Nor can its holding find support in basic First Amendment principles. </s> For these reasons, I dissent. </s> [Appendix to opinion of Breyer, J., follows this page.] </s> [Graphic omitted; see printed opinion.] </s> FOOTNOTES Footnote * </s> *The Court has held that the First Amendment is implicated by government regulation of contributions and expenditures for political purposes. Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). Although it by no means follows that the reasoning in such cases would apply to the regulation of expenditures for advertising, I think it clear that government compulsion to finance objectionable speech imposes a greater restraint on liberty than government regulation of money used to subsidize the speech of others. Even in the commercial speech context, I think it entirely proper for the Court to rely on the First Amendment when evaluating the significance of such compulsion.

United States Supreme Court EMPRESA SIDERURGICA V. COUNTY OF MERCED(1949) No. 327 Argued: February 9, 1949Decided: May 31, 1949 </s> Appeal from the Supreme Court of the State of California. Mr. Scott D. Kellogg, Oakland, Cal., for appellants. [ Empresa Siderurgica v. County of Merced 337 U.S. 154 (1949) ] </s> [337 U.S. 154 , 155] </s> Mr. James E. Sabine, San Francisco, Cal., for appellees. </s> Mr. Justice DOUGLAS delivered the opinion of the Court. There was a cement plant in Merced County, California, which was sold to petitioner-a corporation of Colombia-for export to South America. An export license was obtained and a letter of credit in favor of the seller deposited here. Title passed, and possession was taken for the urchaser. A company, which was a common carrier, was employed to do the dismantling and packaging for shipment. As the dismantling proceeded, shipments were labeled with appellant's name as consignee and delivered to a rail carrier. Respondent acting under a California statute1 levied a personal property tax on the property for the tax year 1945-1946. The tax date was March 5, 1945. On that date 12 per cent of the plant had been shipped out of the county. That portion was relieved of the tax. The balance was taxed. That included the 10 per cent which had been dismantled and created or prepared for shipment, 34 per cent which had been dismantled but not crated or prepared for shipment, and 44 per cent which had not been dismantled. But before the end of January, 1946, all the property had been shipped by rail to a port and was en route to South America by ocean carrier. Article I, 10, Cl. 2 of the Constitution provides in part that, 'No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws * * *.' Appellant claimed </s> [337 U.S. 154 , 156] </s> that this tax was laid on an export and was therefore unconstitutional. It paid the tax under protest and brought this suit to recover it. The trial court, holding that the entire plant was an export on the tax assessment day, granted judgment for appellant. The Supreme Court of California reversed. 32 Cal.2d 68, 194 P.2d 527. The case is here on appeal. 28 U.S.C . 1257(2), 28 U.S.C.A. 1257(2). '* * * goods do not cease to be part of the general mass of property in the state, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation, to another state, or have been started upon such transportation in a continuous route or journey.' Coe v. Town of Errol, 116 U.S. 517, 527 , 478. That test was fashioned to determine the validity under the Commerce Clause of a nondiscriminatory state tax. But as we noted in Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 79 , it is equally applicable to cases arising either under Art. I, 10, Cl. 2 ( The Import-Export Clause) or under Art. I, 9, Cl. 5, which prohibits Congress from laying any tax on 'Articles exported from any State.'2 </s> Under that test it is not enough that there is an intent to export, or a plan which contemplates exportation, or an integrated series of events which will end with it. See Turpin v. Burgess, 117 U.S. 504 ; Cornell v. Coyne, 192 U.S. 418 . The tax immunity runs to the process of exportation and the transactions and documents embraced in it. Fairbank v. United States, 181 U.S. 283 ; United States v. Hvoslef, 237 U.S. 1 , Ann.Cas.1916A 286; Thames & Mersey Marine Ins. Co. v. United States, 237 U.S. 19 , Ann.Cas. 1915D, 1087. Delivery of packages to an exporting carrier for shipment abroad, A. G. Spalding & Bros. v. Edwards, 262 U.S. 66 , and the delivery of oil into the hold of the ship furnished by the foreign purchaser to carry the oil abroad, Richfield Oil Corp. v. </s> [337 U.S. 154 , 157] </s> State Board of Equalization, supra, have been held sufficient. It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice. So in this case it is not enough that on the tax date there was a purpose and plan to export this property. Nor is it sufficient that in due course that plan was fully executed. The part of the plant that is taxed was dismantled, but it had not been delivered to any carrier for export or otherwise started on its journey on the tax date. It might still have been diverted into the domestic market. The fact that any such diversion would entail a breach of contract, that a part of the plant had already started on its export journey, that an export license had been obtained and a letter of credit deposited in this country increases the expectation on the tax date that exportation of the entire plant would eventuate. But that prospect, no matter how bright, does not start the process of exportation. On the tax date the movement to foreign shores had neither started nor been committed. Some reliance is apparently placed on the fact that the dismantler was a licensed carrier for interstate and foreign commerce and that its employment included the loading of the property on railroad cars for shipment to the seaboard. But the dismantler had not in this case started the movement of the property to the carrier. Hence we need not determine whether that intermediate transportation would be part of the export process. Affirmed. </s> Mr. Justice FRANKFURTER, dissenting. Though figures of speech may aid analysis, they do not dispense with the need for it. When a State seeks to tax what is to leave the United States, we may agree </s> [337 U.S. 154 , 158] </s> that its privilege to do so ceases when the export enters 'the export stream.' But the problem for decision is to determine when that point has been reached. The Export-Import Clause of the Constitution (Art. I, 10) embodies on phase of the accommodation between the States and the Union; it can be applied only by considering the bearing of a particular exertion of State power on the fulfillment or frustration of its purpose. A mechanistic formula, whether derived from phrases in Coe v. Town of Errol, 116 U.S. 517 , or elsewhere culled, advances us little toward the solution of such a concrete problem. The case before us is peculiarly ill-fitted for mechanical disposition; it presents unusual circumstances giving rise to unusual contentions. It involves the sale to a Colombian purchaser of what the contract of sale describes as 'all machinery, equipment, removable structures, removable facilities, spare parts, supplies and miscellaneous items comprising' the Yosemite Portland Cement Plant located at Merced, California, but 'excluding the land upon which the plan is situated' and various other specified items. The appellant urges that the objects of this sale, which are collectively referred to by the contract as 'the cement plant,' should be regarded as interdependent parts of an organic whole like a 200-inch telescope or a cyclotron. Since no such part has a separate usefulness comparable to its usefulness as a supporting member of the structure or as a link in the productive process for which the structure is designed, shipment of part-in this case 14 of an eventual total of 123 carloads-makes virtually certain that the rest will follow. In the case of such an export, so runs the argument, it is a degree of certainty fully equivalent to the certainty marked by delivery to a common carrier of a bulk cargo, like oil or grain or timber, for whatever part of a cargo of the latter sort has not actually left the country can </s> [337 U.S. 154 , 159] </s> even then be diverted and separately sold without loss in value either to the diverted or to the exported part. It is the degree of certainty, moreover, and not conformity to a prescribed ritual like delivery to a carrier, that is significant: 'The certainty that the goods are headed to sea and that the process of exportation has started may normally be best evidenced by the fact that they have been delivered to a common carrier for that purpose. But the same degree of certainty may exist though no common carrier is involved.' Richfield Oil Corp. v. State Board of qualization, 329 U.S. 69, 82 , 67 S. Ct. 156, 163. </s> The case was submitted to the Superior Court of Merced County on an agreed statement of facts which leaves in doubt whether the items comprising the 'cement plant' were actually interdependent, as appellant contends, or consisted merely of a collection of machines and other pieces of equipment which could have been individually installed without loss of usefulness in any other cement plant. Tending to establish appellant's position are provisions of the dismantling contract which indicate that the existing structure was to be carefully taken apart like a Chinese puzzle so that it could be fitted together again in Colombia exactly the way it was before 'Contractor shall take at least one photograph of each machine or piece of equipment before dismantling said machine or piece of equipment, and shall also take at least one photograph after such machine or piece of equipment is dismantled.' 'All separations shall be made at the point of joinder, and there shall be no cutting or disassembling of any part of the Cement Plant which will have as its effect the weakening of the structure or parts when such structure or parts are reassembled * * *.' 'The Contractor shall match-mark all parts of the plant and equipment * * *.' </s> [337 U.S. 154 , 160] </s> Tending to look the other way is an itemized list of all the items to be exported which was attached to the export license issued to appellant by the War Production Board. Those items, ranging from thousand-ton kilns and locomotives to friction tape, seem to be things of a sort which are independently useful; each is assigned a dollar value and the total of all these separate values exactly equals the sale price of the 'plant.' Appellee insists, moreover, that so many parts of the original plant were excepted from the contract of sale that what was sold cannot be considered an organic unit. The Superior Court resolved this issue of fact in favor of the interpretation urged by appellant and reached a conclusion based on that interpretation: 'I think that the payment for the property and proceeding to change it from parts in place of a complete building, into a mass of disconnected materials made the completion of the exportation economically imperative. This was not a mere preparation of the plant for exportation; by such action and change the parts had 'been started upon such transportation' with the degree of certainty demanded by Coe v. Town of Errol and the many cases which have endorsed it. * * * </s> 'If the exportation of the materials of the plant was not before assured, that became certain when the twelve per cent of the corpus of the building had been sent abroad. * * * Whatever possibility there might have been that after plaintiff had torn the plant down and carried the parts off the premises that it would sell them or re-erect them into a plant in California would be rendered extremely improbable when it appeared that it had kept here only a part of the </s> [337 U.S. 154 , 161] </s> materials of the plant which of course could not be sold as the materials from which a plant could be built or used to reassemble the old one.' </s> The appellant presented the same contentions to the Supreme Court of California. Without explicitly rejecting these contentions, it referred to the objects of export and of taxation merely as 'the machinery and equipment of a cement plant' and alluded to the above-quoted portion of the Superior Court's opinion only as 'another basis for the decision.' Its opinion is open, therefore, to two very different interpretations. 1. The Supreme Court of California may have exercised a right under California law to draw its own inferences from uncontroverted facts and thus have found that what was called a 'plant' was really only a collection of machinery and equipment. If that is what it did, we would not, of course, reinstate the findings of the Superior Court merely in order to raise an interesting question under the Export-Import Clause. Affirmance would be amply supported by bare citation of cases holding that intent to export, no matter how firm, is not by itself enough to confer immunity from taxation. 2. The Supreme Court of California may have taken the view that only delivery to a carrier of each successive part even of an organic whole removed that part from the State's taxing power. This would have been in effect to say, 'Upon the facts as found by the Superior Court, it makes no difference to the taxing power of the County of Merced that parts of this integrated plant had left the country since the County is merely taxing the remaining parts.' Surely this is a doubtful proposition; it presents, at any rate, a difficult question of the adjustment of local needs to the protection of exports from local interference. </s> [337 U.S. 154 , 162] </s> Between these two possible interpretations of the situation before the Supreme Court of California, therefore, lies the difference between a simple question of Constitutional power and a very troublesome one. Since the record leaves in doubt whether the troublesome question is presented, to assume that it is presented and then to pass upon it would be to embrace unnecessarily what may be a hypothetical issue. We should, therefore, remand the case for the resolution of the crucial question of fact upon which depends what Constitutional issue we are called upon to decide. Cf. City of Hammond v. Schappi Bus Line, Inc., 275 U.S. 164, 48 S. Ct. 66. Footnotes </s> [Footnote 1 Rev. & Tax. Code 1939, Div. I, 103, 106, 201, 202(e), 405. </s> [Footnote 2 The meaning of 'export' is the same under the two Clauses. See Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 83 , 67 S. Ct. 156, 163, 164 and cases cited.

United States Supreme Court TEXAS v. BROWN(1983) No. 81-419 Argued: January 12, 1983Decided: April 19, 1983 </s> A Fort Worth, Tex., police officer stopped respondent's automobile at night at a routine driver's license checkpoint, asked him for his license, shined his flashlight into the car, and saw an opaque, green party balloon, knotted near the tip, fall from respondent's hand to the seat beside him. Based on his experience in drug offense arrests, the officer was aware that narcotics frequently were packaged in such balloons, and while respondent was searching in the glove compartment for his license, the officer shifted his position to obtain a better view and noticed small plastic vials, loose white powder, and an open bag of party balloons in the glove compartment. After respondent stated that he had no driver's license in his possession and complied with the officer's request to get out of the car, the officer picked up the green balloon, which seemed to contain a powdery substance within its tied-off portion. Respondent was then advised that he was under arrest, an on-the-scene inventory search of the car was conducted, and other items were seized. At a suppression hearing in respondent's state-court trial for unlawful possession of heroin, a police department chemist testified that heroin was contained in the balloon seized by the officer and that narcotics frequently were so packaged. Suppression of the evidence was denied, and respondent was convicted. The Texas Court of Criminal Appeals reversed, holding that the evidence should have been suppressed because it was obtained in violation of the Fourth Amendment. Rejecting the State's contention that the so-called "plain view" doctrine justified the seizure, the court concluded that under Coolidge v. New Hampshire, 403 U.S. 443 , for that doctrine to apply, not only must the officer be legitimately in a position to view the object, but also it must be "immediately apparent" to the police that they have evidence before them, and thus the officer here had to know that incriminating evidence was before him when he seized the balloon. </s> Held: </s> The judgment is reversed, and the case is remanded. </s> 617 S. W. 2d 196, reversed and remanded. </s> JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR, concluded that the police officer did not violate the Fourth Amendment in seizing the green balloon from respondent's automobile. The plain-view doctrine provides grounds for [460 U.S. 730, 731] a warrantless seizure of a suspicious item when the officer's access to the item has some prior justification under the Fourth Amendment. This rule merely reflects an application of the Fourth Amendment's central requirement of reasonableness to the law governing seizures of property. Here, the officer's initial stop of respondent's vehicle was valid, and his actions in shining his flashlight into the car and changing his position to see what was inside did not violate any Fourth Amendment rights. The "immediately apparent" language in Coolidge, supra, does not establish a requirement that a police officer "know" that certain items are contraband or evidence of a crime. "The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587 . Probable cause is a flexible, common-sense standard, merely requiring that the facts available to the officer would warrant a man of reasonable caution to believe that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. In view of the police officer's testimony here, corroborated by that of the police department chemist, as to the common use of balloons in packaging narcotics, the officer had probable cause to believe that the balloon contained an illicit substance. Moreover, the requirement of the plain-view doctrine under Coolidge, supra, that the officer must discover incriminating evidence "inadvertently," without knowing in advance the location of the particular evidence and intending to seize it by use of the doctrine as a pretext, was no bar to the seizure here. Pp. 735-744. </s> JUSTICE POWELL, joined by JUSTICE BLACKMUN, concurring in the judgment, concluded that the articulation in Coolidge, supra, of the plain-view exception to the Warrant Clause requirements of the Fourth Amendment is dispositive of the issue here. Respondent conceded that the officer's initial intrusion was lawful and that the discovery of the tiedoff balloon was inadvertent in that it was observed in the course of a lawful inspection of the front seat area of the automobile. If probable cause must be shown to justify the seizure, it existed here, in light of the evidence that tied-off balloons are common containers for carrying illegal narcotics. Moreover, a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person. Pp. 744-746. </s> JUSTICE STEVENS, joined by JUSTICE BRENNAN and JUSTICE MARSHALL, concurring in the judgment, concluded that under the "plain view" exception to the Fourth Amendment's warrant requirement the officer's warrantless temporary seizure of the balloon was proper, but that before the balloon's contents could be used as evidence, the State [460 U.S. 730, 732] had to justify opening it without a warrant, a question that remains open to the state court on remand. Pp. 747-751. </s> REHNQUIST, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C. J., and WHITE and O'CONNOR, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 744. POWELL, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 744. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 747. </s> C. Chris Marshall argued the cause for petitioner. With him on the briefs were Tim Curry, L. T. Wilson, and Stephen R. Chaney. </s> Allan K. Butcher argued the cause for respondent. With him on the brief was J. Don Carter. * </s> [Footnote * Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and Joshua I. Schwartz filed a brief for the United States as amicus curiae urging reversal. </s> JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR joined. </s> Respondent Clifford James Brown was convicted in the District Court of Tarrant County, Tex., for possession of heroin in violation of state law. The Texas Court of Criminal Appeals reversed his conviction, holding that certain evidence should have been suppressed because it was obtained in violation of the Fourth Amendment to the United States Constitution. 1 617 S. W. 2d 196. That court rejected the [460 U.S. 730, 733] State's contention that the so-called "plain view" doctrine justified the police seizure. Because of apparent uncertainty concerning the scope and applicability of this doctrine, we granted certiorari, 457 U.S. 1116 , and now reverse the judgment of the Court of Criminal Appeals. </s> On a summer evening in June 1979, Tom Maples, an officer of the Fort Worth police force, assisted in setting up a routine driver's license checkpoint on East Allen Street in that city. Shortly before midnight Maples stopped an automobile driven by respondent Brown, who was alone. Standing alongside the driver's window of Brown's car, Maples asked him for his driver's license. At roughly the same time, Maples shined his flashlight into the car and saw Brown withdraw his right hand from his right pants pocket. Caught between the two middle fingers of the hand was an opaque, green party balloon, knotted about one-half inch from the tip. Brown let the balloon fall to the seat beside his leg, and then reached across the passenger seat and opened the glove compartment. [460 U.S. 730, 734] </s> Because of his previous experience in arrests for drug offenses, Maples testified that he was aware that narcotics frequently were packaged in balloons like the one in Brown's hand. When he saw the balloon, Maples shifted his position in order to obtain a better view of the interior of the glove compartment. He noticed that it contained several small plastic vials, quantities of loose white powder, and an open bag of party balloons. After rummaging briefly through the glove compartment, Brown told Maples that he had no driver's license in his possession. Maples then instructed him to get out of the car and stand at its rear. Brown complied, and, before following him to the rear of the car, Maples reached into the car and picked up the green balloon; there seemed to be a sort of powdery substance within the tied-off portion of the balloon. </s> Maples then displayed the balloon to a fellow officer who indicated that he "understood the situation." The two officers then advised Brown that he was under arrest. 2 They [460 U.S. 730, 735] also conducted an on-the-scene inventory of Brown's car, discovering several plastic bags containing a green leafy substance and a large bottle of milk sugar. These items, like the balloon, were seized by the officers. At the suppression hearing conducted by the District Court, a police department chemist testified that he had examined the substance in the balloon seized by Maples and determined that it was heroin. He also testified that narcotics frequently were packaged in ordinary party balloons. </s> The Court of Criminal Appeals, discussing the Fourth Amendment issue, observed that "`plain view alone is never enough to justify the warrantless seizure of evidence.'" 617 S. W. 2d, at 200, quoting Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) (opinion of Stewart, J., joined by Douglas, BRENNAN, and MARSHALL, JJ.) It further concluded that "Officer Maples had to know that `incriminatory evidence was before him when he seized the balloon.'" 617 S. W. 2d, at 200 (emphasis supplied), quoting DeLao v. State, 550 S. W. 2d 289, 291 (Tex. Crim. App. 1977). On the State's petition for rehearing, three judges dissented, stating their view that "[t]he issue turns on whether an officer, relying on years of practical experience and knowledge commonly accepted, has probable cause to seize the balloon in plain view." 617 S. W. 2d, at 201. </s> Because the "plain view" doctrine generally is invoked in conjunction with other Fourth Amendment principles, such as those relating to warrants, probable cause, and search incident to arrest, we rehearse briefly these better understood principles of Fourth Amendment law. That Amendment secures the persons, houses, papers, and effects of the people against unreasonable searches and seizures, and requires the existence of probable cause before a warrant shall issue. Our cases hold that procedure by way of a warrant is preferred, although in a wide range of diverse situations we have recognized flexible, common-sense exceptions to this requirement. See, e. g., Warden v. Hayden, 387 U.S. 294 (1967) [460 U.S. 730, 736] (hot pursuit); United States v. Jeffers, 342 U.S. 48, 51 -52 (1951) (exigent circumstances); United States v. Ross, 456 U.S. 798 (1982) (automobile search); Chimel v. California, 395 U.S. 752 (1969), United States v. Robinson, 414 U.S. 218 (1973), and New York v. Belton, 453 U.S. 454 (1981) (search of person and surrounding area incident to arrest); Almeida-Sanchez v. United States, 413 U.S. 266 (1973) (search at border or "functional equivalent"); Zap v. United States, 328 U.S. 624, 630 (1946) (consent). We have also held to be permissible intrusions less severe than full-scale searches or seizures without the necessity of a warrant. See, e. g., Terry v. Ohio, 392 U.S. 1 (1968) (stop and frisk); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (seizure for questioning); Delaware v. Prouse, 440 U.S. 648 (1979) (roadblock). One frequently mentioned "exception to the warrant requirement," Coolidge v. New Hampshire, supra, at 456, is the so-called "plain view" doctrine, relied upon by the State in this case. </s> While conceding that the green balloon seized by Officer Maples was clearly visible to him, the Court of Criminal Appeals held that the State might not avail itself of the "plain view" doctrine. That court said: </s> "For the plain view doctrine to apply, not only must the officer be legitimately in a position to view the object, but it must be immediately apparent to the police that they have evidence before them. This `immediately apparent' aspect is central to the plain view exception and is here relied upon by appellant. [Citation omitted.] In this case then, Officer Maples had to know that `incriminatory evidence was before him when he seized the balloon.'" 617 S. W. 2d, at 200. </s> The Court of Criminal Appeals based its conclusion primarily on the plurality portion of the opinion of this Court in Coolidge v. New Hampshire, supra. In the Coolidge plurality's view, the "plain view" doctrine permits the warrantless seizure by police of private possessions where three requirements [460 U.S. 730, 737] are satisfied. 3 First, the police officer must lawfully make an "initial intrusion" or otherwise properly be in a position from which he can view a particular area. Id., at 465-468. Second, the officer must discover incriminating evidence "inadvertently," which is to say, he may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain-view doctrine only as a pretext. Id., at 470. Finally, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Id., at 466. While the lower courts generally have applied the Coolidge plurality's discussion of "plain view," it has never been expressly adopted by a majority of this Court. On the contrary, the plurality's formulation was sharply criticized at the time, see, Coolidge v. New Hampshire, 403 U.S., at 506 (Black, J., dissenting); id., at 516-521 (WHITE, J., dissenting). While not a binding precedent, as the considered opinion of four Members of this Court it should obviously be the point of reference for further discussion of the issue. </s> The Coolidge plurality observed: "it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure," simply as "the normal concomitant of any search, legal or illegal." Id., at 465. The question whether property in plain view of the police may be seized therefore must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question. The Coolidge plurality, while following this approach to "plain [460 U.S. 730, 738] view," characterized it as an independent exception to the warrant requirement. At least from an analytical perspective, this description may be somewhat inaccurate. We recognized in Payton v. New York, 445 U.S. 573, 587 (1980), the well-settled rule that "objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." A different situation is presented, however, when the property in open view is "`situated on private premises to which access is not otherwise available for the seizing officer.'" Ibid., quoting G. M. Leasing Corp. v. United States, 429 U.S. 338, 354 (1977). As these cases indicate, "plain view" provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment. 4 "Plain view" is perhaps better understood, therefore, not as an independent "exception" to the Warrant [460 U.S. 730, 739] Clause, but simply as an extension of whatever the prior justification for an officer's "access to an object" may be. </s> The principle is grounded on the recognition that when a police officer has observed an object in "plain view," the owner's remaining interests in the object are merely those of possession and ownership, see Coolidge v. New Hampshire, supra, at 515 (WHITE, J., dissenting). Likewise, it reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a "needless inconvenience," 403 U.S., at 468 , that might involve danger to the police and public. Ibid. We have said previously that "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on . . . Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S., at 654 . In light of the private and governmental interests just outlined, our decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. See Marron v. United States, 275 U.S. 192 (1927); Go-Bart Importing Co. v. United States, 282 U.S. 344, 358 (1931); United States v. Lefkowitz, 285 U.S. 452, 465 (1932); Harris v. United States, 390 U.S. 234, 236 (1968); Frazier v. Cupp, 394 U.S. 731 (1969). This rule merely reflects an application of the Fourth Amendment's central requirement of reasonableness to the law governing seizures of property. </s> Applying these principles, we conclude that Officer Maples properly seized the green balloon from Brown's automobile. The Court of Criminal Appeals stated that it did not "question . . . the validity of the officer's initial stop of appellant's vehicle as a part of a license check," 617 S. W. 2d, at 200, and we agree. Delaware v. Prouse, supra, at 654-655. It is likewise beyond dispute that Maples' action in shining his [460 U.S. 730, 740] flashlight to illuminate the interior of Brown's car trenched upon no right secured to the latter by the Fourth Amendment. The Court said in United States v. Lee, 274 U.S. 559, 563 (1927): "[The] use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution." Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection. 5 </s> Likewise, the fact that Maples "changed [his] position" and "bent down at an angle so [he] could see what was inside" Brown's car, App. 16, is irrelevant to Fourth Amendment analysis. The general public could peer into the interior of Brown's automobile from any number of angles; there is no reason Maples should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy, Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Smith v. Maryland, 442 U.S. 735, 739 -745 (1979), shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled Maples to observe the interior of Brown's car and of his open glove compartment was not a search within the meaning of the Fourth Amendment. [460 U.S. 730, 741] </s> Thus there can be no dispute here as to the presence of the first of the three requirements held necessary by the Coolidge plurality to invoke the "plain view" doctrine. 6 But the Court of Criminal Appeals, as we have noted, felt the State's case ran aground on the requirement that the incriminating nature of the items be "immediately apparent" to the police officer. To the Court of Criminal Appeals, this apparently meant that the officer must be possessed of near certainty as to the seizable nature of the items. Decisions by this Court since Coolidge indicate that the use of the phrase "immediately apparent" was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the "plain view" doctrine. </s> In Colorado v. Bannister, 449 U.S. 1, 3 -4 (1980), we applied what was in substance the plain-view doctrine to an officer's seizure of evidence from an automobile. Id., at 4, n. 4. The officer noticed that the occupants of the automobile matched a description of persons suspected of a theft and that auto parts in the open glove compartment of the car similarly resembled ones reported stolen. The Court held that these facts supplied the officer with "probable cause," id., at 4, and therefore, that he could seize the incriminating items from the car without a warrant. Plainly, the Court did not view the "immediately apparent" language of Coolidge as establishing any requirement that a police officer "know" that certain items are contraband or evidence of a crime. Indeed, Colorado v. Bannister, supra, was merely an application of the rule, set forth in Payton v. New York, 445 U.S. 573 (1980), that "[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property [460 U.S. 730, 742] with criminal activity." Id., at 587 (emphasis added). We think this statement of the rule from Payton, supra, requiring probable cause for seizure in the ordinary case, 7 is consistent with the Fourth Amendment and we reaffirm it here. </s> As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U.S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176 (1949). Moreover, our observation in United States v. Cortez, 449 U.S. 411, 418 (1981), regarding "particularized suspicion," is equally applicable to the probable-cause requirement: </s> "The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same - and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." </s> With these considerations in mind it is plain that Officer Maples possessed probable cause to believe that the balloon in Brown's hand contained an illicit substance. Maples testified that he was aware, both from his participation in previous narcotics arrests and from discussions with other officers, [460 U.S. 730, 743] that balloons tied in the manner of the one possessed by Brown were frequently used to carry narcotics. This testimony was corroborated by that of a police department chemist who noted that it was "common" for balloons to be used in packaging narcotics. In addition, Maples was able to observe the contents of the glove compartment of Brown's car, which revealed further suggestions that Brown was engaged in activities that might involve possession of illicit substances. The fact that Maples could not see through the opaque fabric of the balloon is all but irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents - particularly to the trained eye of the officer. </s> In addition to its statement that for seizure of objects in plain view to be justified the basis upon which they might be seized had to be "immediately apparent," and the requirement that the initial intrusion be lawful, both of which requirements we hold were satisfied here, the Coolidge plurality also stated that the police must discover incriminating evidence "inadvertently," which is to say, they may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain-view doctrine only as a pretense. 430 U.S., at 470 . Whatever may be the final disposition of the "inadvertence" element of "plain view," 8 it clearly was no bar to the seizure here. The circumstances of this meeting between Maples and Brown give no suggestion that the roadblock was a pretext whereby evidence of narcotics violation might be uncovered in "plain view" in the course of a check for driver's licenses. Here, although the officers no doubt had an expectation that some of the cars they halted on East Allen Street - which was part of a "medium" area of narcotics traffic, App. 33 - would contain narcotics or paraphernalia, [460 U.S. 730, 744] there is no indication in the record that they had anything beyond this generalized expectation. Likewise, there is no indication that Maples had any reason to believe that any particular object would be in Brown's glove compartment or elsewhere in his automobile. The "inadvertence" requirement of "plain view," properly understood, was no bar to the seizure here. </s> Maples lawfully viewed the green balloon in the interior of Brown's car, and had probable cause to believe that it was subject to seizure under the Fourth Amendment. The judgment of the Texas Court of Criminal Appeals is accordingly reversed, and the case is remanded for further proceedings. </s> It is so ordered. </s> JUSTICE WHITE, concurring. </s> While joining JUSTICE REHNQUIST's plurality opinion, I continue to disagree with the views of four Justices in Coolidge v. New Hampshire, 403 U.S. 443, 469 (1971), that plain-view seizures are valid only if the viewing is "inadvertent." Nor does the Court purport to endorse that view in its opinions today. </s> Footnotes [Footnote 1 Brown argues that the decision below rested on an independent and adequate state ground, and therefore that this Court lacks jurisdiction. Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935). The position is untenable. The opinion of the Texas Court of Criminal Appeals rests squarely on the interpretation of the Fourth Amendment to the United States Constitution in Coolidge v. New Hampshire, 403 U.S. 443 (1971), and on Texas cases interpreting that decision, e. g., Howard v. State, 599 S. W. 2d 597 (Tex. Crim. App. 1979); DeLao v. State, 550 S. W. 2d 289 (Tex. Crim. App. 1977); Duncan v. State, 549 S. W. 2d 730 (Tex. Crim. App. 1977); and Nicholas v. State, 502 S. W. 2d 169 (Tex. Crim. App. 1973). The only mention [460 U.S. 730, 733] of the Texas Constitution occurs in a summary of Brown's contentions at the outset of the lower court's opinion. </s> Brown relies principally on Howard v. State, supra, and Duncan v. State, supra. Neither decision supports the proposition that the Texas Court of Criminal Appeals based its decision upon state law. In Howard, the State argued that the plain-view doctrine justified the seizure of a closed translucent medicine jar from an automobile. The Court of Criminal Appeals rejected the claim, relying on Coolidge v. New Hampshire, supra, and stating that the State's arguments "cannot be squared with the Supreme Court's interpretation of the plain view doctrine." 599 S. W. 2d, at 602. The court also relied on Thomas v. State, 572 S. W. 2d 507 (Tex. Crim. App. 1976), which it characterized as "[f]ollowing the teachings of Coolidge v. New Hampshire." 599 S. W. 2d, at 602. An additional opinion of the court on the State's motion for rehearing merely elaborated upon the application of the plain-view doctrine set forth in the court's original opinion. Similarly, in Duncan, the Court of Criminal Appeals rejected the State's reliance on the plain-view theory, citing to Coolidge for a statement of the applicable law, as well as to Nicholas v. State, supra. Like the court's other decisions in the area, Nicholas relied only on Coolidge. </s> [Footnote 2 It is not clear on the record before us when Brown was arrested. The Court of Criminal Appeals stated, at one point in its opinion, that it did not question "the propriety of the arrest since appellant failed to produce a driver's license." 617 S. W. 2d 196, 200. This statement might be read to suggest that Brown was arrested upon his failure to produce a license, instead of at some point following seizure of the balloon from the car. The transcript of the suppression hearing, however, indicates rather clearly that Brown was not formally arrested until after seizure of the balloon. App. 28-31. In the face of such indications, we decline to interpret the above-quoted clause from the Court of Criminal Appeals' opinion as evidencing a belief that an arrest occurred prior to seizure of the balloon. Rather, we think it likely that the court was simply reasoning that Brown's arrest, whenever it may have taken place, was justified because of his failure to produce a driver's license. </s> We do not address the argument that seizure of the balloon would have been justified under New York v. Belton, 453 U.S. 454 (1981), which permits warrantless searches of the passenger compartment of an automobile incident to an arrest, because of the absence of clear factual findings regarding the time at which, and the reason for which, Brown was arrested and because the lower court was not able to consider that decision. </s> [Footnote 3 The plurality also remarked that "plain view alone is never enough to justify the warrantless seizure of evidence." 403 U.S., at 468 . The court below appeared to understand this phrase to impose an independent limitation upon the scope of the plain-view doctrine articulated in Coolidge. The context in which the plurality used the phrase, however, indicates that it was merely a rephrasing of its conclusion, discussed below, that in order for the plain-view doctrine to apply, a police officer must be engaged in a lawful intrusion or must otherwise legitimately occupy the position affording him a "plain view." </s> [Footnote 4 Thus, police may perceive an object while executing a search warrant, or they may come across an item while acting pursuant to some exception to the Warrant Clause, e. g., Warden v. Hayden, 387 U.S. 294 (1967); Terry v. Ohio, 392 U.S. 1 (1968). Alternatively, police may need no justification under the Fourth Amendment for their access to an item, such as when property is left in a public place, see Payton v. New York, 445 U.S. 573, 587 (1980). </s> It is important to distinguish "plain view," as used in Coolidge to justify seizure of an object, from an officer's mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search, see infra, at 740; Katz v. United States, 389 U.S. 347 (1967), the former generally does implicate the Amendment's limitations upon seizures of personal property. The information obtained as a result of observation of an object in plain sight may be the basis for probable cause or reasonable suspicion of illegal activity. In turn, these levels of suspicion may, in some cases, see, e. g., Terry v. Ohio, supra; United States v. Ross, 456 U.S. 798 (1982), justify police conduct affording them access to a particular item. </s> [Footnote 5 E. g., United States v. Chesher, 678 F.2d 1353, 1356-1357, n. 2 (CA9 1982); United States v. Ocampo, 650 F.2d 421, 427 (CA2 1981); United States v. Pugh, 566 F.2d 626, 627, n. 2 (CA8 1977), cert. denied, 435 U.S. 1010 (1978); United States v. Coplen, 541 F.2d 211 (CA9 1976), cert. denied, 429 U.S. 1073 (1977); United States v. Lara, 517 F.2d 209 (CA5 1975); United States v. Johnson, 506 F.2d 674 (CA8 1974), cert. denied, 421 U.S. 917 (1975); United States v. Booker, 461 F.2d 990, 992 (CA6 1972); United States v. Hanahan, 442 F.2d 649 (CA7 1971); People v. Waits, 196 Colo. 35, 580 P.2d 391 (1978); Redd v. State, 240 Ga. 753, 243 S. E. 2d 16 (1978); State v. Chattley, 390 A. 2d 472 (Me. 1978); State v. Vohnoutka, 292 N. W. 2d 756 (Minn. 1980); Dick v. State, 596 P.2d 1265 (Okla. Crim. App. 1979); State v. Miller, 45 Ore. App. 407, 608 P.2d 595 (1980); Albo v. State, 379 So.2d 648 (Fla. 1980). </s> [Footnote 6 While seizure of the balloon required a warrantless, physical intrusion into Brown's automobile, this was proper, assuming that the remaining requirements of the plain-view doctrine were satisfied. United States v. Ross, 456 U.S. 798 (1982). </s> [Footnote 7 We need not address whether, in some circumstances, a degree of suspicion lower than probable cause would be sufficient basis for a seizure in certain cases. </s> [Footnote 8 See State v. King, 191 N. W. 2d 650, 655 (Iowa 1971); United States v. Santana, 485 F.2d 365, 369-370 (CA2 1973), cert. denied, 415 U.S. 931 (1974); United States v. Bradshaw, 490 F.2d 1097, 1101, n. 3 (CA4), cert. denied, 419 U.S. 895 (1974); North v. Superior Court, 8 Cal. 3d 301, 306-307, 502 P.2d 1305, 1308 (1972). </s> JUSTICE POWELL, with whom JUSTICE BLACKMUN joins, concurring in the judgment. </s> I concur in the judgment, and also agree with much of the plurality's opinion relating to the application in this case of the plain-view exception to the Warrant Clause. But I do not join the plurality's opinion because it goes well beyond the application of the exception. As I read the opinion, it appears to accord less significance to the Warrant Clause of the Fourth Amendment than is justified by the language and purpose of that Amendment. In dissent in United States v. Rabinowitz, 339 U.S. 56 (1950), Justice Frankfurter wrote eloquently: </s> "One cannot wrench `unreasonable searches' from the text and context and historic content of the Fourth [460 U.S. 730, 745] Amendment. . . . When [that] Amendment outlawed `unreasonable searches' and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is `unreasonable' unless a warrant authorizes it, barring only exceptions justified by absolute necessity." Id., at 70. </s> To be sure, the opinions of this Court in Warrant Clause cases have not always been consistent. They have reflected disagreement among Justices as to the extent to which the Clause defines the reasonableness standard of the Amendment. In one of my earliest opinions, United States v. United States District Court, 407 U.S. 297 (1972), I cited Justice Frankfurter's Rabinowitz dissent in emphasizing the importance of the Warrant Clause. 407 U.S., at 316 . Although I would not say that exceptions can be justified only by "absolute necessity," 1 I stated that they were "few in number and carefully delineated." Id., at 318. This has continued to be my view, as expressed recently in Arkansas v. Sanders, 442 U.S. 753, 759 (1979). It is a view frequently repeated by this Court. See, e. g., United States v. Ross, 456 U.S. 798, 825 (1982); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (unanimous decision); Vale v. Louisiana, 399 U.S. 30, 34 (1970); Katz v. United States, 389 U.S. 347, 357 (1967); Camara v. Municipal Court, 387 U.S. 523, 528 -529 (1967); Jones v. United States, 357 U.S. 493, 499 (1958). </s> This case involves an application of the plain-view exception, first addressed at some length by the plurality portion of the opinion in Coolidge v. New Hampshire, 403 U.S. 443 (1971). The plurality today states that this opinion "has [460 U.S. 730, 746] never been expressly adopted by a majority of this Court." Ante, at 737. Whatever my view might have been when Coolidge was decided, I see no reason at this late date to imply criticism of its articulation of this exception. It has been accepted generally for over a decade. 2 Moreover, it seems unnecessary to cast doubt on Coolidge in this case. Its plurality formulation is dispositive of the question before us. </s> Respondent Brown does not dispute that Officer Maples' initial intrusion was lawful. Brown also concedes that the discovery of the tied-off balloon was inadvertent in that it was observed in the course of a lawful inspection of the front seat area of the automobile. If probable cause must be shown, as the Payton dicta suggest, see Payton v. New York, 445 U.S. 573, 587 (1980), I think it is clear that it existed here. Officer Maples testified that he previously had made an arrest in a case where narcotics were carried in tied-off balloons similar to the one at issue here. Other officers had told him of such cases. Even if it were not generally known that a balloon is a common container for carrying illegal narcotics, we have recognized that a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person. United States v. Cortez, 449 U.S. 411, 418 (1981). We are not advised of any innocent item that is commonly carried in uninflated, tied-off balloons such as the one Officer Maples seized. [460 U.S. 730, 747] </s> Accordingly, I concur in the judgment as it is consistent with principles established by our prior decisions. </s> [Footnote 1 I have considered the automobile exception, for example, as one clearly justified because of the nature of the vehicle. See, e. g., Arkansas v. Sanders, 442 U.S. 753, 760 -761 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 561 -562 (1976); Almeida-Sanchez v. United States, 413 U.S. 266, 279 (1973) (POWELL, J., concurring). </s> [Footnote 2 See, e. g., United States v. Chesher, 678 F.2d 1353, 1356-1357 (CA9 1982); United States v. Irizarry, 673 F.2d 554, 558-560 (CA1 1982); United States v. Tolerton, 669 F.2d 652, 653-655 (CA10), cert. denied, 456 U.S. 949 (1982); United States v. Antill, 615 F.2d 648, 649 (CA5) (per curiam), cert. denied, 449 U.S. 866 (1980); United States v. Duckett, 583 F.2d 1309, 1313-1314 (CA5 1978); United States v. Williams, 523 F.2d 64, 66-67 (CA8 1975), cert. denied, 423 U.S. 1090 (1976); United States v. Truitt, 521 F.2d 1174, 1175-1178 (CA6 1975); United States v. Pacelli, 470 F.2d 67, 70-72 (CA2 1972), cert. denied, 410 U.S. 983 (1973); United States v. Drew, 451 F.2d 230, 232-234 (CA5 1971). </s> JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in the judgment. </s> The Texas Court of Criminal Appeals held that the warrantless seizure of respondent's balloon could not be justified under the plain-view doctrine because incriminating evidence was not immediately apparent. This Court reverses, holding that even though the contents of the balloon were not visible to the officer, incriminating evidence was immediately apparent because he had probable cause to believe the balloon contained an illicit substance. I agree with the Court that contraband need not be visible in order for a plain-view seizure to be justified. I therefore concur in the conclusion that the Texas Court interpreted the Fourth Amendment more strictly than is required. </s> The plurality's explanation of our disposition of this case is, however, incomplete. It gives inadequate consideration to our cases holding that a closed container may not be opened without a warrant, even when the container is in plain view and the officer has probable cause to believe contraband is concealed within. United States v. Chadwick, 433 U.S. 1 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979); United States v. Ross, 456 U.S. 798, 811 -812 (1982). Final determination of whether the trial court properly denied the suppression motion requires a more complete understanding of the plain-view doctrine, as well as the answer to a factual inquiry that remains open to the state court on remand. </s> Although our Fourth Amendment cases sometimes refer indiscriminately to searches and seizures, there are important differences between the two that are relevant to the plain-view doctrine. The Amendment protects two different interests of the citizen - the interest in retaining possession of property and the interest in maintaining personal privacy. A seizure threatens the former, a search the latter. As a matter of timing, a seizure is usually preceded by a search, [460 U.S. 730, 748] but when a container is involved the converse is often true. Significantly, the two protected interests are not always present to the same extent; for example, the seizure of a locked suitcase does not necessarily compromise the secrecy of its contents, and the search of a stopped vehicle does not necessarily deprive its owner of possession. </s> An object may be considered to be "in plain view" if it can be seized without compromising any interest in privacy. Since seizure of such an object threatens only the interest in possession, circumstances diminishing that interest may justify exceptions to the Fourth Amendment's usual requirements. Thus, if an item has been abandoned, neither Fourth Amendment interest is implicated, and neither probable cause nor a warrant is necessary to justify seizure. See, e. g., Abel v. United States, 362 U.S. 217, 241 (1960); cf. United States v. Lisk, 522 F.2d 228, 230 (CA7 1975). And if an officer has probable cause to believe that a publicly situated item is associated with criminal activity, the interest in possession is outweighed by the risk that such an item might disappear or be put to its intended use before a warrant could be obtained. The officer may therefore seize it without a warrant. See G. M. Leasing Corp. v. United States, 429 U.S. 338, 354 (1975); Payton v. New York, 445 U.S. 573, 587 (1980). The "plain view" exception to the warrant requirement is easy to understand and to apply in cases in which no search is made and no intrusion on privacy occurs. </s> The Court's more difficult plain-view cases, however, have regularly arisen in two contexts that link the seizure with a prior or subsequent search. The first is the situation in which an officer who is executing a valid search for one item seizes a different item. The Court has been sensitive to the danger inherent in such a situation that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will. That danger is averted by strict attention to two of the core requirements of plain view: seizing the item must entail no significant additional invasion of privacy, and [460 U.S. 730, 749] at the time of seizure the officer must have probable cause to connect the item with criminal behavior. See United States v. Lefkowitz, 285 U.S. 452, 465 (1932); cf. Coolidge v. New Hampshire, 403 U.S. 443, 465 -466 (1971). </s> The second familiar context is the situation in which an officer comes upon a container in plain view and wants both to seize it and to examine its contents. In recent years, the Court has spoken at some length about the latter act, e. g., Ross, supra; Chadwick, supra; Sanders, supra, emphasizing the Fourth Amendment privacy values implicated whenever a container is opened. In this case, however, both the search of a container (the balloon) and the antecedent seizure are open to challenge. 1 In that regard, it more closely resembles Coolidge, supra. 2 All of these cases, however, demonstrate that the constitutionality of a container search is not automatically determined by the constitutionality of the prior seizure. See Chadwick, 433 U.S., at 13 -14, n. 8; Sanders, 442 U.S., at 761 -762. Separate inquiries are necessary, taking into account the separate interests at stake. </s> If a movable container is in plain view, seizure does not implicate any privacy interests. Therefore, if there is probable cause to believe it contains contraband, the owner's possessory interest in the container must yield to society's interest in making sure that the contraband does not vanish during [460 U.S. 730, 750] the time it would take to obtain a warrant. The item may be seized temporarily. It does not follow, however, that the container may be opened on the spot. Once the container is in custody, there is no risk that evidence will be destroyed. Some inconvenience to the officer is entailed by requiring him to obtain a warrant before opening the container, but that alone does not excuse the duty to go before a neutral magistrate. Johnson v. United States, 333 U.S. 10, 15 (1948); McDonald v. United States, 335 U.S. 451, 455 (1948). As JUSTICE POWELL emphasizes, ante, at 744-745, the Warrant Clause embodies our government's historical commitment to bear the burden of inconvenience. Exigent circumstances must be shown before the Constitution will entrust an individual's privacy to the judgment of a single police officer. </s> In this case, I have no doubt concerning the propriety of the officer's warrantless seizure of the balloon. For the reasons stated by JUSTICES POWELL and REHNQUIST, I agree that the police officer invaded no privacy interest in order to see the balloon, and that when he saw it he had probable cause to believe it contained drugs. But before the balloon's contents could be used as evidence against the respondent, the State also had to justify opening it without a warrant. 3 I can perceive two potential justifications. First, it is entirely possible that what the officer saw in the car's glove compartment, coupled with his observation of respondent and the contents of his pockets, provided probable cause to believe that contraband was located somewhere in the car - and not merely in the one balloon at issue. If so, then under United States v. Ross, 456 U.S. 798 (1982), which was not decided until after the Texas Court of Criminal Appeals reviewed this case, it was permissible to examine the contents of any container in the car, including this balloon. </s> Alternatively, the balloon could be one of those rare single-purpose containers which "by their very nature cannot support [460 U.S. 730, 751] any reasonable expectation of privacy because their contents can be inferred from their outward appearance." Sanders, supra, at 764-765, n. 13. Whereas a suitcase or a paper bag may contain an almost infinite variety of items, a balloon of this kind might be used only to transport drugs. Viewing it where he did could have given the officer a degree of certainty that is equivalent to the plain view of the heroin itself. If that be true, I would conclude that the plain-view doctrine supports the search as well as the seizure even though the contents of the balloon were not actually visible to the officer. 4 </s> This reasoning leads me to the conclusion that the Fourth Amendment would not require exclusion of the balloon's contents in this case if, but only if, there was probable cause to search the entire vehicle or there was virtual certainty that the balloon contained a controlled substance. 5 Neither of these fact-bound inquiries was made by the Texas courts, and neither should be made by this Court in the first instance. Moreover, it may be that on remand the Texas Court of Criminal Appeals will find those inquiries unnecessary because the respondent may have waived his right to demand them. See n. 3, supra. I therefore concur in the judgment. </s> [Footnote 1 In defending the Texas Court of Criminal Appeals' judgment before this Court, the respondent did not rely upon a challenge to the search of the balloon. I nevertheless believe it is necessary to elaborate upon the distinction between the balloon's search and its seizure in this case in order to clarify what the Court does and does not hold today. Moreover, it is not clear to me whether, as a matter of Texas law, the respondent would still be permitted to present an argument that the evidence should be suppressed because it was obtained after a search of the balloon. See n. 3, infra. </s> [Footnote 2 Although Coolidge is not always thought of as a container case, the Court was required to confront New Hampshire's separate attempts to justify both its warrantless seizure of a container, an immobilized automobile, see 403 U.S., at 464 -473, and its subsequent warrantless searches of the container's interior, see id., at 458-464. </s> [Footnote 3 Arguably, as a matter of Texas law the respondent has waived his right to demand such a justification. That is, of course, an issue for the Texas courts. </s> [Footnote 4 Conversely, the fact that an object is visible does not automatically mean that it is in plain view in the sense that no invasion of privacy is required to seize it. This case does not require elaboration of what the Fourth Amendment demands before an officer may seize a visible item that he could not reach without, for example, entering a private home or destroying a valuable container. See Taylor v. United States, 286 U.S. 1, 5 (1932). </s> [Footnote 5 Sometimes there can be greater certainty about the identity of a substance within a container than about the identity of a substance that is actually visible. One might actually see a white powder without realizing that it is heroin, but be virtually certain a balloon contains such a substance in a particular context. It seems to me that in evaluating whether a person's privacy interests are infringed, "virtual certainty" is a more meaningful indicator than visibility. </s> [460 U.S. 730, 752]

United States Supreme Court LOEFFLER v. FRANK(1988) No. 86-1431 Argued: January 11, 1988Decided: June 13, 1988 </s> Petitioner was discharged from his position with the United States Postal Service. Contending that his discharge resulted from sex discrimination, petitioner brought this suit against the Postmaster General in Federal District Court pursuant to 717 of Title VII of the Civil Rights Act of 1964. The court found for petitioner and ordered his reinstatement with backpay, but refused to award prejudgment interest. The Court of Appeals affirmed the denial of prejudgment interest. Relying in part on Library of Congress v. Shaw, 478 U.S. 310 , which held that sovereign immunity barred the payment of interest on attorney's fees awarded against the Library of Congress under Title VII, the court concluded that Congress had not waived the Postal Service's sovereign immunity as to prejudgment interest in a Title VII suit, even though Congress had provided in the 1970 Postal Reorganization Act, 39 U.S.C. 401(1), that the Postal Service may "sue and be sued." </s> Held: </s> Prejudgment interest may be awarded in a suit against the Postal Service brought under Title VII. Pp. 554-565. </s> (a) By launching the Service into the commercial world and including a sue-and-be-sued clause in the Postal Reorganization Act, Congress removed the Service's cloak of sovereignty and gave it the status of a private commercial enterprise. The clause must be liberally construed, and the Service's liability must be presumed to be the same as that of any other business. Thus, Congress is presumed to have waived any otherwise existing immunity of the Service from interest awards. None of the exceptions to the liberal-construction rule operate to overcome this presumption. Franchise Tax Board of California v. USPS, 467 U.S. 512 . Pp. 554-557. </s> (b) Since Title VII authorizes interest awards as a normal incident of suits against private parties, and since Congress, by enacting the sue-and-be-sued clause in the Postal Reorganization Act, has waived the Service's immunity from such awards, respondent may be subjected to an interest award in this case. Pp. 557-558. </s> (c) There is no merit to respondent's contention that the waiver of sovereign immunity effected by the sue-and-be-sued clause has no force in this case. The history of the Postal Reorganization Act, with its [486 U.S. 549, 550] emphasis on the availability of strong remedies for discrimination in the federal employment context, makes clear that Congress' failure to extend Title VII protections to Postal Service employees did not reflect an intent to circumscribe the waiver of sovereign immunity effected by the sue-and-be-sued clause, but, rather, was a determination that a Title VII cause of action was unnecessary in light of such alternative remedies. Nor is the sue-and-be-sued clause irrelevant merely because when Congress extended a Title VII cause of action to federal employees in 1972, it included special procedures and limitations applicable only in actions against federal defendants. Neither the language of 717 nor its legislative history indicates that the waiver of sovereign immunity it effected was intended to narrow the waiver of sovereign immunity of entities subject to sue-and-be-sued clauses. Pp. 560-562. </s> (d) Nor is there merit to respondent's contention that the statute that provides petitioner with his cause of action, 717 of Title VII, does not authorize interest awards. Congress expressly incorporated in 717 provisions of Title VII that allow an interest award, and a 717 suit, once commenced, is delineated by the same provisions as a suit against a private employer, who is liable for prejudgment interest in a Title VII suit. Library of Congress v. Shaw, supra, is not to the contrary. That case started from the rule that, absent express consent by Congress, the Government it is immune from interest awards, and found that Title VII did not waive the Library of Congress' immunity from interest. However, the library of Congress, unlike the Postal Service, was not a sue-and-be-sued agency that Congress had launched into the commercial world and thereby broadly waived the agency's sovereign immunity. Pp. 563-565. </s> 806 F.2d 817, reversed and remanded. </s> BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, STEVENS, and SCALIA, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined, post, p. 566. KENNEDY, J., took no part in the consideration or decision of the case. </s> Lisa S. Van Amburg argued the cause and filed briefs for petitioner. </s> Charles A. Rothfeld argued the cause for respondent. With him on the brief were Solicitor General Fried, Deputy [486 U.S. 549, 551] Solicitor General Ayer, John F. Daly, and Stephen E. Alpern. * </s> [Footnote * Julius LeVonne Chambers, Gail J. Wright, and Charles Stephen Ralston filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal. </s> JUSTICE BLACKMUN delivered the opinion of the Court. </s> This case presents the question whether prejudgment interest may be awarded in a suit against the United States Postal Service brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000e et seq. </s> I </s> Petitioner Theodore J. Loeffler was discharged from his position as a rural letter carrier for the United States Postal Service. 1 Petitioner appealed his termination to the Merit Systems Protection Board and, when his discharge was affirmed there, sought administrative relief from the Equal Employment Opportunity Commission. This, also, was without success. Contending that his discharge resulted from [486 U.S. 549, 552] sex discrimination, petitioner subsequently brought this suit against the Postmaster General of the United States in his official capacity, 2 pursuant to 717 of Title VII, as amended, 42 U.S.C. 2000e-16. After a bench trial, the United States District Court for the Eastern District of Missouri concluded that petitioner was a victim of discrimination and ordered his reinstatement with backpay. App. to Pet. for Cert. A-26. Relying on a decision of its controlling court, Cross v. USPS, 733 F.2d 1327, 1332 (CA8 1984) (en banc), cert. denied, 470 U.S. 1051 (1985), the District Court refused to award prejudgment interest. App. to Pet. for Cert. A-21. (In Cross, an equally divided Court of Appeals had affirmed the same District Judge's conclusion that sovereign immunity barred an award of prejudgment interest in a Title VII suit against the Postal Service.) </s> The United States Court of Appeals for the Eighth Circuit affirmed the denial of prejudgment interest. Loeffler v. Carlin, 780 F.2d 1365, 1370-1371 (1985). Concluding that the District Court's reliance on Cross was "understandable and proper," id., at 1370, the court stated: "If the question of prejudgment interest is to be reconsidered, it should be reconsidered by the Court en banc." Id., at 1371. </s> Subsequently, the Eighth Circuit undertook that en banc reconsideration, and, by a 6-to-5 vote, affirmed the judgment of the District Court. Loeffler v. Tisch, 806 F.2d 817 (1986). The majority adopted the reasoning of the majority of the original panel in Cross, 733 F.2d 1327, which concluded that Congress had not waived the sovereign immunity of the Postal Service with regard to prejudgment interest in a Title [486 U.S. 549, 553] VII suit. The majority found its conclusion "strongly reinforced" by this Court's recent decision in Library of Congress v. Shaw, 478 U.S. 310 (1986), which the majority interpreted as "holding that Congress, in enacting Title VII, did not waive the Government's immunity from interest." 3 806 F.2d, at 818. In the majority's view, Congress' provision in the 1970 Postal Reorganization Act, 39 U.S.C. 401(1), that the Postal Service may "sue and be sued" was irrelevant to the question before it, because "a sue-and-be-sued clause does not expand the obligations of a federal entity in a suit brought pursuant to another statute that is itself a waiver of immunity and which constitutes an exclusive remedy." 806 F.2d, at 819. </s> The 5-judge dissent adopted the reasoning of the dissent in the Cross panel submission. That dissent had concluded that "limits on prejudgment interest have been imposed solely because of the barrier of sovereign immunity," 733 F.2d, at 1332, and that the sue-and-be-sued clause in the Postal Reorganization Act had eliminated that barrier in actions against the Postal Service. The dissent noted this Court's observation in Shaw: "`The no-interest rule is . . . inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise.'" 806 F.2d, at 822, quoting Shaw, 478 U.S., at 317 , n. 5. In the dissent's view, the Postal Service fits within this exception and, therefore, "an award of prejudgment interest against the Postal Service under Title VII is not barred by sovereign immunity." 806 F.2d, at 823. [486 U.S. 549, 554] </s> Because of a conflict with the views of the Eleventh Circuit expressed in Nagy v. USPS, 773 F.2d 1190 (1985), we granted certiorari to decide whether, in a Title VII suit, prejudgment interest may be awarded against the Postal Service. Sub nom. Loeffler v. Tisch, 483 U.S. 1004 (1987). </s> II </s> A </s> The question of statutory interpretation here presented, involving the interaction of the Postal Reorganization Act and Title VII, lends itself to straightforward resolution. Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued. In FHA v. Burr, 309 U.S. 242, 245 (1940), the Court explained: </s> "[S]uch waivers by Congress of governmental immunity . . . should be liberally construed. . . . Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to `sue and be sued,' it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to `sue and be sued' is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress [486 U.S. 549, 555] launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." (Footnote omitted.) </s> Accord, Franchise Tax Board of California v. USPS, 467 U.S. 512, 517 -518 (1984); Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U.S. 81, 84 -85 (1941); see also Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381 (1939). Encompassed within this liberal-construction rule is the principle "that the words `sue and be sued' normally include the natural and appropriate incidents of legal proceedings." J. G. Menihan Corp., 312 U.S., at 85 . </s> In accord with this approach, this Court has recognized that authorization of suits against federal entities engaged in commercial activities may amount to a waiver of sovereign immunity from awards of interest when such awards are an incident of suit. For example, in Standard Oil Co. v. United States, 267 U.S. 76 (1925), the Court reviewed a suit brought under 5 of the Act of September 2, 1914, ch. 293, 38 Stat. 711, on insurance claims issued by the Bureau of War Risk Insurance. The Court concluded: "When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business." 267 U.S., at 79 . Accordingly, interest was allowed. Ibid. See also National Home for Disabled Volunteer Soldiers v. Parrish, 229 U.S. 494 (1913) (interest allowed against eleemosynary agency that Congress had authorized "to sue and be sued"). Cf. Library of Congress v. Shaw, 478 U.S., at 317 , n. 5. </s> When Congress created the Postal Service in 1970, it empowered the Service "to sue and be sued in its official name." [486 U.S. 549, 556] 39 U.S.C. 401(1). This sue-and-be-sued clause was a part of Congress' general design that the Postal Service "be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of California v. USPS, 467 U.S., at 520 . In Franchise Tax Board, this Court examined, in the context of an order issued by a state administrative agency, the extent to which Congress had waived the sovereign immunity of the Postal Service. After noting that "Congress has `launched [the Postal Service] into the commercial world,'" ibid., the Court held that the sue-and-be-sued clause must be liberally construed and that the Postal Service's liability must be presumed to be the same as that of any other business. Because the order to the Postal Service to withhold employees' wages had precisely the same effect on the Service's ability to operate efficiently as did such orders on other employers subject to the state statute that had been invoked, and because the burden of complying with the order would not impair the Service's ability to perform its functions, the Court concluded that there was no basis for overcoming the presumption that immunity from the state order had been waived. See id., at 520, and n. 14. </s> Our unanimous view of the Postal Service expressed in Franchise Tax Board is controlling here. By launching "the Postal Service into the commercial world," and including a sue-and-be-sued clause in its charter, Congress has cast off the Service's "cloak of sovereignty" and given it the "status of a private commercial enterprise." Shaw, 478 U.S., at 317 , n. 5. It follows that Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards. </s> None of the exceptions to the liberal-construction rule that guides our interpretation of the waiver of the Postal Service's immunity operates to overcome this presumption. Subjecting the Service to interest awards would not be inconsistent [486 U.S. 549, 557] with the Postal Reorganization Act, 39 U.S.C. 101 et seq., the statutory scheme that created the Postal Service, nor would it pose a threat of "grave interference" with the Service's operation. FHA v. Burr, 309 U.S., at 245 . Finally, we find nothing in the statute or its legislative history to suggest that "it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense," ibid., with regard to interest awards. To the contrary, since Congress expressly included several narrow and specific limitations on the operation of the sue-and-be-sued clause, see 39 U.S.C. 409, 4 none of which is applicable here, the natural inference is that it did not intend other limitations to be implied. </s> Accordingly, we conclude that, at the Postal Service's inception, Congress waived its immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit. </s> B </s> Respondent concedes, and apparently all the United States Courts of Appeals that have considered the question agree, that Title VII authorizes prejudgment interest as part of the backpay remedy in suits against private employers. 5 This [486 U.S. 549, 558] conclusion surely is correct. The backpay award authorized by 706(g) of Title VII, as amended, 42 U.S.C. 2000e-5(g), is a manifestation of Congress' intent to make "persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). 6 Prejudgment interest, of course, is "an element of complete compensation." West Virginia v. United States, 479 U.S. 305, 310 (1987). Thus, since Title VII authorizes interest awards as a normal incident of suits against private parties, and since Congress has waived the Postal Service's immunity from such awards, it follows that respondent may be subjected to an interest award in this case. </s> III </s> A </s> In order to address respondent's arguments, it is necessary to explain briefly the manner in which Title VII provides a cause of action to federal employees. As originally enacted in 1964, Title VII, by excluding federal entities from its definition of employer, see 701(b) of Title VII, 42 U.S.C. 2000e(b), did not provide a cause of action to federal employees. Brown v. GSA, 425 U.S. 820, 825 (1976). In 1972, Congress amended Title VII by adding its 717, which brought federal employees, including employees of the Postal Service, within the ambit of Title VII. Equal Employment [486 U.S. 549, 559] Opportunity Act of 1972, 86 Stat. 111, 42 U.S.C. 2000e-16. In so doing, Congress intended to provide federal employees with "`the full rights available in the courts as are granted to individuals in the private sector under Title VII.'" Chandler v. Roudebush, 425 U.S. 840, 841 (1976), quoting S. Rep. No. 92-415, p. 16 (1971). Section 717(a) mandates that all personnel actions affecting federal employees covered by that section "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. 2000e-16(a). Section 717(b) provides a detailed administrative enforcement mechanism, and 717(c) permits an aggrieved employee to file a civil action in federal district court, provided the employee has met certain requirements regarding exhaustion of administrative remedies. Thus, in enacting 717, Congress simultaneously provided federal employees with a cause of action under Title VII and effected a waiver of the Government's immunity from suit. See Library of Congress v. Shaw, 478 U.S., at 319 . The waiver of sovereign immunity effected by 717, however, was a limited one. "In making the Government liable as a defendant under Title VII, . . . Congress did not waive the Government's traditional immunity from interest." Id., at 323. </s> Based on this background, respondent channels his attack into two principal arguments. First, respondent contends that the waiver of sovereign immunity effected by the "sue-and-be-sued" clause of the Postal Reorganization Act, 39 U.S.C. 401(1), has no bearing here, regardless of its scope. In respondent's view, the only waiver of sovereign immunity relevant to a Title VII suit against the Postal Service is the waiver of sovereign immunity found in Title VII itself. Second, respondent argues that, even if the waiver of sovereign immunity provided by 401 does control, the cause of action that 717 affords to a Postal Service employee is distinct from the cause of action afforded a private-sector employee and does not provide a basis for an award of prejudgment interest. We examine these contentions in turn. [486 U.S. 549, 560] </s> B </s> In support of his argument that the sue-and-be-sued clause of the Postal Reorganization Act, 39 U.S.C. 401(1), has no force in this case, respondent initially relies on Congress' failure, at the time it created the Postal Service in 1970, to extend Postal Service employees a cause of action under Title VII. 7 In respondent's view, this failure constituted a decision to leave intact what respondent characterizes as the "explicit" decision of the Congress that enacted Title VII in 1964 to preserve the sovereign immunity of federal employers in Title VII suits. But the history of the Postal Reorganization Act discussed in n. 7, supra, with its emphasis on the availability of strong remedies for discrimination in the federal employment context, makes clear that Congress' failure to extend Title VII protections to Postal Service employees did not reflect an intent to circumscribe the waiver of sovereign immunity effected by the sue-and-be-sued clause, but, rather, was a determination that a Title VII cause of action was unnecessary in light of these alternative remedies. The reason Postal Service employees could not bring an employment discrimination suit under Title VII in 1970 - indeed, the [486 U.S. 549, 561] reason that federal employees generally could not do so - stemmed not from the Postal Reorganization Act, but from a restriction in Title VII itself: the exclusion of federal entities from the definition of the term "employer." The Postal Reorganization Act is utterly silent as to Title VII. We reject the notion that Congress' silence when it creates a new federal entity, with regard to a cause of action that is generally unavailable to federal employees, can be construed as a limitation on the waiver of that entity's sovereign immunity effected by the inclusion of a sue-and-be-sued clause. </s> Respondent would find further support for his argument that the sue-and-be-sued clause is irrelevant to this case in the manner in which Congress extended a Title VII cause of action to federal employees in 1972. Specifically, respondent relies on a distinction between causes of action that may be asserted against commercial entities generally, as, for example a state garnishment statute, see Franchise Tax Board of California v. USPS, 467 U.S. 512 (1984), and causes of action, such as 717 of Title VII, that contain special procedures and limitations applicable only to federal defendants. Respondent contends that while a sue-and-be-sued clause may apply to a suit against a federal entity in the former class of actions, it has no bearing in the latter. We are not persuaded by this argument for two reasons. </s> First, this is an argument for an implied exception to the waiver of sovereign immunity effected by a sue-and-be-sued clause. Yet respondent offers no reason for concluding that Congress intended his implied exception to be added to those that this Court articulated in FHA v. Burr, 309 U.S., at 245 , and we see no reason why we should do so. </s> Second, when Congress intends the waiver of sovereign immunity in a new cause of action directed against federal entities to be exclusive, - in effect, to limit the force of "sue-and-be-sued" clauses - it has said so expressly. Congress' waiver of the sovereign immunity of the United States for certain torts of federal employees, in the Federal Tort Claims [486 U.S. 549, 562] Act (FTCA), 28 U.S.C. 1346, 2671-2680, provides an example. Prior to the FTCA's enactment, certain federal agencies were already suable in tort. Although Congress enacted the FTCA to allow suits against many agencies that previously had been immune from suits in tort, it also wished to "place torts of `suable' agencies of the United States upon precisely the same footing as torts of `nonsuable' agencies." H. R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945). Accordingly, Congress expressly limited the waivers of sovereign immunity that it had previously effected through "sue-and-be-sued" clauses and stated that, in the context of suits for which it provided a cause of action under the FTCA, "sue-and-be-sued" agencies would be subject to suit only to the same limited extent as agencies whose sovereign immunity from tort suits was being waived for the first time: </s> "The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S.C. 2679(a). </s> In contrast, neither the language of 717 of Title VII nor its legislative history contains an expression that the waiver of sovereign immunity it effected was intended also to narrow the waiver of sovereign immunity of entities subject to sue-and-be-sued clauses. Accordingly, we reject respondent's contention that 39 U.S.C. 401(1) has no application here. 8 </s> [486 U.S. 549, 563] </s> C </s> Respondent next argues that, even if the waiver of sovereign immunity effected by 401(1) is controlling, an award of prejudgment interest is inappropriate because the statute that provides petitioner with his cause of action, 717 of Title VII, does not authorize interest awards. Respondent starts from the premise that had Congress expressly stated that prejudgment interest is unavailable in actions under 717, the outcome of this case would be beyond dispute. Therefore, it is claimed, "[t]he fact that the `no-interest' rule is not made explicit in the statute, but rather is a conclusion drawn by this Court in Shaw . . ., does not make the rule any less binding." Brief for Respondent 16. This argument, in our view, misunderstands both the nature of the remedy 717 affords and the basis of our holding in Shaw. </s> Without doubt, petitioner's cause of action in this case is derived from 717. We do not disagree with respondent that, had 717 explicitly stated that the cause of action it provided did not include prejudgment interest, such interest would be unavailable in this case. But Congress made no express statement of that kind. To the contrary, Congress expressly incorporated in 717 provisions of Title VII that allow an interest award. Specifically, 717(c), 42 U.S.C. 2000e-16(c), provides that, after pursuing various mandatory [486 U.S. 549, 564] administrative remedies, an unsatisfied 717 plaintiff "may file a civil action as provided in section 2000e-5 of this title," which governs enforcement actions against private employers. </s> Thus, although petitioner's cause of action under 717 is circumscribed by mandatory administrative prerequisites that are distinct from the prerequisites for a civil suit brought against a private employer, a 717 suit, once commenced, is delineated by the same provisions as a suit against a private employer. Most importantly for the purposes of this case, 717(d) explicitly incorporates 706(g) of Title VII into the cause of action provided. Section 706(g) allows a court to "order such affirmative action as may be appropriate, . . . includ[ing] . . . back pay . . ., or any other equitable relief as the court deems appropriate." 42 U.S.C. 2000e-5(g). This provision thus governs the remedies available in both a Title VII suit brought against a federal employer under 717 and a Title VII suit brought against a private employer. Cf. Chandler v. Roudebush, 425 U.S., at 843 -848. And, just as this section provides for prejudgment interest in a Title VII suit against a private employer, it provides for prejudgment interest in a Title VII suit brought under 717. </s> Respondent's view that Shaw stands for the proposition that 717 implicitly states that prejudgment interest is unavailable in all suits brought under that section misunderstands the basis of our holding in that case. In Shaw, the Court faced the question whether 706(k) of Title VII, 42 U.S.C. 2000e-5(k), which provides that a party prevailing against the United States may recover attorney's fees from the United States, waived the sovereign immunity of the Library of Congress with respect to interest on an attorney's fees award. Unlike the Postal Service, the Library of Congress was not a "sue-and-be-sued" agency that Congress had "`launched . . . into the commercial world," and thereby broadly waived sovereign immunity. Franchise Tax Board of California v. USPS, 467 U.S., at 520 , quoting FHA v. [486 U.S. 549, 565] Burr, 309 U.S., at 245 . Thus, the starting point for our analysis was the "no-interest rule," which is to the effect that, absent express consent by Congress, the United States is immune from interest awards. See Shaw, 478 U.S., at 314 . The dispositive question was not whether Title VII provided a cause of action that would allow recovery of interest, but, rather, whether Title VII contained an express waiver of the Library of Congress' immunity from interest. Because no such waiver is contained within Title VII, the no-interest rule barred recovery of interest from the Library of Congress on the plaintiff's attorney's fees award. This conclusion had nothing to do with the scope of a 717 cause of action. </s> The Court expressly noted in Shaw: "The no-interest rule is . . . inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise." 478 U.S., at 317 , n. 5. In creating the Postal Service, Congress did just that, and therefore, the no-interest rule does not apply to it. Thus, the search for an express waiver of immunity from interest within Title VII, which is all that Shaw was about, is unnecessary in this case. As discussed above, 401 of the Postal Reorganization Act provides the waiver of sovereign immunity from interest awards against the Postal Service, and 717 of Title VII provides the cause of action under which petitioner may recover interest. </s> IV </s> Accordingly, we conclude that interest may be awarded against the Postal Service in a Title VII suit. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. </s> It is so ordered. </s> JUSTICE KENNEDY took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Petitioner's discharge arose from his practice of casing boxholder mail. "Boxholder" mail is third-class mail that does not bear the name and address of a particular individual but is given to the postal carrier in a single bundle for delivery to each current resident or possessor of a rural-delivery mailbox. The District Court explained: "`Casing' is the practice of inserting the boxholders in each separation of the delivery case in the post office work area prior to delivery, and then inserting the first or second class mail inside the boxholders so that the boxholders form a convenient sleeve for the rest of the pieces of mail and thus make delivery quicker and easier. The alternative to casing the boxholders is to carry them as separate bundles and insert them into each individual post box during delivery." App. to Pet. for Cert. A-28. In 1979, pursuant to directives from Postal Service headquarters in Washington, D.C., all five rural carriers at the Chesterfield, Mo., Post Office, including petitioner, were instructed not to case the boxholders. The rule against casing was openly violated by petitioner and by two female rural carriers. Although all three carriers repeatedly ignored the rule, only petitioner was discharged, while the two female carriers were disciplined mildly or not at all. </s> [Footnote 2 At the time this suit was filed, William F. Bolger, then Postmaster General, was the named defendant. While the case was pending on appeal, Bolger was succeeded as Postmaster General and as defendant by Paul N. Carlin and, subsequently, by Preston R. Tisch. After oral argument before this Court, Tisch was succeeded by Anthony M. Frank. General Frank has been substituted as respondent pursuant to this Court's Rule 40.3. </s> [Footnote 3 In Shaw, the Court held that sovereign immunity bars the payment of interest on attorney's fees awarded against the Library of Congress under Title VII. The Court's holding came "against the backdrop of the no-interest rule," Shaw, 478 U.S., at 319 , which provides: "Apart from constitutional requirements, in the absence of specific provision by contract or statute, or `express consent . . . by Congress,' interest does not run on a claim against the United States." United States v. Louisiana, 446 U.S. 253, 264 -265 (1980), quoting United States v. N. Y. Rayon Importing Co., 329 U.S. 654, 659 (1947). </s> [Footnote 4 Section 409 provides in part: "(b) Unless otherwise provided in this title, the provisions of title 28 relating to service of process, venue, and limitations of time for bringing action in suits in which the United States, its officers, or employees are parties, . . . shall apply in like manner to suits in which the Postal Service, its officers, or employees are parties. "(c) The provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service." </s> [Footnote 5 See Brief for Respondent 9. See also Conway v. Electro Switch Corp., 825 F.2d 593, 602 (CA1 1987); Green v. USX Corp., 843 F.2d 1511, 1530 (CA3 1988); United States v. Gregory, 818 F.2d 1114, 1118 (CA4), cert. denied, 484 U.S. 847 (1987); Parson v. Kaiser Aluminum & Chemical Corp., 727 F.2d 473, 478 (CA5), cert. denied, 467 U.S. 1243 (1984); EEOC v. Wooster Brush Co. Employees Relief Assn., 727 F.2d 566, [486 U.S. 549, 558] 578-579 (CA6 1984); Taylor v. Philips Industries, Inc., 593 F.2d 783, 787 (CA7 1979); Washington v. Kroger Co., 671 F.2d 1072, 1078 (CA8 1982); Domingo v. New England Fish Co., 727 F.2d 1429, 1446 (CA9), modified on other grounds, 742 F.2d 520 (1984); Nagy v. USPS, 773 F.2d 1190 (CA11 1985). Cf. EEOC v. County of Erie, 751 F.2d 79, 82 (CA2 1984) (interest allowed on backpay award under Equal Pay Act); Shaw v. Library of Congress, 241 U.S. App. D.C. 355, 361, 747 F.2d 1469, 1475 (1984) (interest allowed on Title VII attorney's fees award), rev'd on other grounds, 478 U.S. 310 (1986). </s> [Footnote 6 Indeed, to ensure that victims of employment discrimination would be provided complete relief, Congress also gave the courts broad equitable powers. See 706(g) of Title VII, as amended, 42 U.S.C. 2000e-5(g); see generally Albemarle Paper Co. v. Moody, 422 U.S., at 418 -421. </s> [Footnote 7 When the Senate was considering its version of the Postal Reorganization Act, Senator Cook proposed a floor amendment "to give postal service employees the equal employment opportunity rights provided by title VII of the Civil Rights Act of 1964, that employees in private industry have benefited from since 1964." 116 Cong. Rec. 22279 (1970). The Senate approved the amendment by a 93-0 vote. See id., at 22279-22280. The Cook amendment was deleted in conference, however, because the conferees were persuaded that the "present law affecting all Federal employees, including employees under the new Postal Service, guarantee[d] antidiscrimination provisions . . . of greater benefit . . . than the provisions of title VII of the Civil Rights Act of 1964." Id., at 26953 (remarks of Sen. McGee); see also, id., at 26956, 26957 (remarks of Sen. McGee); id., at 27597 (remarks of Rep. Daniels). Senator McGee, who presented the Conference Report to the Senate, "guarantee[d]" that if the current bill did not "achieve the laudable purpose that the Cook amendment intended," the Senate would immediately enact appropriate legislation. Id., at 26957 (remarks of Sen. McGee). </s> [Footnote 8 Respondent also seeks comfort from the concededly technical distinction that this suit, in accordance with the provisions of 717(c) of Title VII, 42 U.S.C. 2000e-16(c), named the head of the Postal Service as defendant, while 39 U.S.C. 401(1) makes the Postal Service amenable to suit "in its official name." In FHA v. Burr, 309 U.S. 242, 249 -250 (1940), however, we found such a distinction between a suit against the head of an agency and a suit against the agency itself irrelevant to the force of a "sue-and-be-sued" clause. In Burr, the "sue-and-be-sued" clause in 1 of the National Housing Act, 48 Stat. 1246, as amended by 344 of the Banking [486 U.S. 549, 563] Act of 1935, 49 Stat. 722, applied to the Administrator of the Federal Housing Authority acting in his official capacity. The Court concluded that this waiver of sovereign immunity permitted actions against the Authority itself, because under the terms of the Act, all the powers of the Authority were exercised through the Administrator. This case presents the inverse situation: the "sue-and-be-sued" clause authorizes suits against the agency, and the defendant before the Court is the head of the agency acting in his official capacity. However, the same logic applies. Whenever the head of the Postal Service acts in his official capacity, he is acting in the name of the Postal Service. Thus, here, as in Burr, the acts of the named defendant are always chargeable as acts of the person or entity subject to the sue-and-be-sued clause. We therefore are not persuaded by respondent's procedural distinction. [486 U.S. 549, 566] </s> JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, dissenting. </s> Essentially for the reasons stated by the en banc Court of Appeals below, I believe that prejudgment interest is not available in Title VII suits against the Postal Service. Accordingly, I respectfully dissent. </s> [486 U.S. 549, 567]

United States Supreme Court MAISENBERG v. UNITED STATES(1958) No. 76 Argued: January 28, 1958Decided: May 26, 1958 </s> Petitioner was brought to the United States in 1912 at the age of 11 and was admitted to citizenship in 1938. In 1953, the Government sued under 340 (a) of the Immigration and Nationality Act of 1952 to set aside the naturalization decree on the ground that it had been obtained by "concealment of a material fact [and] willful misrepresentation." The District Court granted the relief sought, and the Court of Appeals affirmed. Held: The judgment is reversed, because the Government has failed to prove its charges by the "clear, unequivocal, and convincing evidence" which is required in denaturalization cases. Schneiderman v. United States, 320 U.S. 118 . Pp. 671-673. </s> 1. The Government's timely filed affidavit of "good cause" was sufficient. Nowak v. United States, ante, p. 660. P. 672. </s> 2. A finding of misrepresentation cannot be predicated on petitioner's answer to an ambiguous question in a preliminary naturalization form. Nowak v. United States, ante, p. 660. P. 672. </s> 3. Though the Government proved that petitioner was a member of the Communist Party for five years preceding her naturalization, it failed to prove sufficiently that she was not "attached to the principles of the Constitution, "because it did not prove by "clear, unequivocal, and convincing evidence" that she knew that the Party advocated the violent overthrow of the Government. Pp. 672-673. </s> 238 F.2d 282, reversed and cause remanded. </s> Ernest Goodman argued the cause for petitioner. With him on the brief was George W. Crockett, Jr. </s> J. F. Bishop argued the cause for the United States. On the brief were Solicitor General Rankin, Acting Assistant Attorney General McLean, Beatrice Rosenberg and Carl H. Imlay. [356 U.S. 670, 671] </s> MR. JUSTICE HARLAN delivered the opinion of the Court. </s> This is a companion case to No. 72, Nowak v. United States, decided today, ante, p. 660. Maisenberg was brought to this country from Russia in 1912, at the age of 11. She was admitted to citizenship in the United States District Court for the Eastern District of Michigan in January 1938. In March 1953, in the same court, the United States brought this suit under 340 (a) of the Immigration and Nationality Act of 1952 1 to set aside the naturalization decree, alleging in its complaint that Maisenberg's citizenship was obtained "by concealment of a material fact [and] willful misrepresentation." After a trial the District Court, in an unreported opinion, granted the relief requested by the Government. The Court of Appeals affirmed, 238 F.2d 282, and we granted certiorari. 353 U.S. 922 . </s> Although the findings of the District Court do not clearly disclose the grounds for decision, Maisenberg seems to have been denaturalized because she was found to have made misrepresentations in (1) answering falsely "No" to the second part of Question 28 in her Preliminary Form for Petition for Naturalization, filed in June 1937; 2 and (2) stating that for a period of five years preceding her naturalization she had been "attached [356 U.S. 670, 672] to the principles of the Constitution of the United States . . . ." The District Court also sustained the sufficiency of the Government's affidavit of "good cause," which was not signed by an individual having personal knowledge of the facts on which the proceedings were based, but by an attorney of the Immigration and Naturalization Service who relied on official records of the Service. </s> For the reasons stated in Nowak v. United States, supra, we hold that (1) the Government's timely filed affidavit of good cause was sufficient; and (2) a finding of misrepresentation cannot be predicated on Maisenberg's negative answer to the second part of Question 28. </s> We also are of opinion that the Government has failed to prove by "clear, unequivocal, and convincing" evidence, Schneiderman v. United States, 320 U.S. 118, 125 , 158, that Maisenberg was not "attached to the principles of the Constitution." 3 As in Nowak, the Government has attempted to prove its case indirectly by showing that Maisenberg was a member of the Communist Party during the five years preceding her naturalization and that she knew that the Party was illegally advocating the violent overthrow of the United States. We think that the Government has adequately proved that Maisenberg was a member of the Party during the pertinent five-year period. But, even making the same assumptions on behalf of the Government that were made in Nowak - that it was adequately shown that the Party in 1938 advocated violent action for the overthrow of the Government and that lack of "attachment" could be [356 U.S. 670, 673] proved by this method - the Government still cannot prevail. For we do not believe that it has carried the burden of proving that Maisenberg was aware of that alleged tenet of the Party. </s> Apart from introducing evidence that Maisenberg was an active member and functionary of the Communist Party, and that she had attended various "closed" Party meetings, the Government presented several witnesses who testified to a number of sporadic statements by Maisenberg (or by others in her presence) between 1930 and 1937 which are claimed to show that she was aware of the purpose of the Party "to overthrow the government by force" and to establish "the dictatorship of the proletariat." For much the same reasons given in Nowak, we regard this evidence as inadequate to establish the Government's case. In each of the several episodes described by the witnesses the statements attributed to Maisenberg can well be taken as merely the expression of abstract predictory opinions; all of them were of a highly equivocal nature; and the faltering character of much of this testimony as to events of many years before casts the gravest doubt upon its reliability. There is no evidence in the record that Maisenberg herself ever advocated revolutionary action or that she was aware that the Party proposed to take such action. Cf. Yates v. United States, 354 U.S. 298, 319 -322. As we said in Nowak, such proof falls short of the "clear, unequivocal, and convincing" evidence needed to support a decree of denaturalization. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion. </s> Reversed. </s> [For dissenting opinion of MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER, see ante, p. 669.] </s> Footnotes [Footnote 1 66 Stat. 260, 8 U.S.C. 1451 (a): "It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings . . . for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation . . . ." </s> [Footnote 2 As in the form completed by Nowak, Question 28 read: "28. Are you a believer in anarchy? . . . Do you belong to or are you associated with any organization which teaches or advocates anarchy or the overthrow of existing government in this country? . . ." </s> [Footnote 3 In view of our decision that, as an objective matter, petitioner has not been shown to have lacked attachment to the principles of the Constitution in 1938, we need not reach the further question under the 1952 Act whether the Government has adequately proved that petitioner misrepresented her attachment or concealed a lack of attachment. See note 1, supra. </s> [356 U.S. 670, 674]

United States Supreme Court LAKE TANKERS CORP. v. HENN(1957) No. 445 Argued: May 6, 1957Decided: June 10, 1957 </s> Petitioner brought this proceeding in a Federal District Court under the Limited Liability Act, 46 U.S.C. 181-196, to limit its liability for claims growing out of a collision between petitioner's tug and barge and a pleasure yacht. Suits previously brought in state courts, by respondent for the death of her husband, and by four other claimants for personal injuries and the loss of the yacht, originally involved claims for damages aggregating more than the value of petitioner's vessels and their pending freight; but the aggregate amount recoverable on such claims was reduced by stipulations and admiralty court orders to an amount less than the value of the vessels and their pending freight. The value of the vessels was undisputed; the claims were fixed; there was no contention that there might be further claims; the fund indubitably was sufficient to pay all claims in full; and the admiralty court had dissolved its injunction against respondent's suit in the state court. Held: In this situation, a concursus beyond that required by the orders heretofore entered in the limitation proceeding is not necessary, and respondent may proceed with her suit in the state court to determine petitioner's obligation to respond in damages for the loss of her husband's life - subject to the continuing jurisdiction of the federal court to protect petitioner's right to limited liability. Pp. 148-154. </s> (a) Where the fund paid into the proceedings by the offending owner exceeds the claims made against it, there is no necessity for the maintenance of the concourse. P. 152. </s> (b) The Act is not one of immunity from liability, and it confers no privilege on the shipowner other than that granting him limited liability. Pp. 152-153. </s> (c) In view of the reservation to such suitors of their common-law remedies by 28 U.S.C. 1333, respondent must not be thwarted in her attempt to employ her common-law remedy in the state court, where she may obtain trial by jury. P. 153. </s> (d) Maryland Casualty Co. v. Cushing, 347 U.S. 409 , distinguished. Pp. 153-154. </s> 232 F.2d 573, 235 F.2d 783, affirmed. [354 U.S. 147, 148] </s> Eugene Underwood argued the cause for petitioner. With him on the brief was H. Barton Williams. </s> Frank C. Mason argued the cause and filed a brief for respondent. </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> This admiralty limitation proceeding resulted from a maritime disaster in 1954. The aggregate amount of all of the claims filed in the proceeding and for which the petitioner could be held liable if found at fault is less than the value of petitioner's vessels and their pending freight. The question presented is whether the respondent, the principal claimant, may, under these circumstances, proceed with her action in a state court, subject to the continuing jurisdiction of the federal court to protect petitioner's right to limited liability, to determine the obligation of the petitioner to respond in damages for the loss of the life of her husband. We agree with the disposition of the District Court as modified by the Court of Appeals. </s> Respondent's husband was a passenger on the pleasure yacht, Blackstone, which was involved in a collision on the Hudson River on July 10, 1954, with petitioner's tug, Eastern Cities, push-towing petitioner's barge, L. T. C. No. 38. The Blackstone capsized and respondent's husband was drowned. The other 10 persons on board the yacht were rescued. Respondent, as her husband's administratrix, brought suit against the petitioner in a New York state court claiming $500,000 damages for the loss of her husband's life. She alleged that the loss was caused by Lake Tankers' negligent operation of both its tug and its barge. Actions by four other claimants were also commenced in the New York state courts against the petitioner for damages for personal injuries and for loss of the Blackstone. [354 U.S. 147, 149] </s> Thereafter, Lake Tankers Corporation filed this proceeding in admiralty in the United States District Court for the Southern District of New York for exoneration from or limitation of liability. As required by the statute authorizing limitation proceedings 1 the petitioner filed approved security. While the first bond was only in the amount of $118,542.21, representing the petitioner's interest in its tug alone, thereafter a bond covering the barge in the amount of $165,000 was filed. Appropriate restraining orders were issued enjoining the prosecution or filing of any claims against Lake Tankers except in the limitation proceeding. There is no dispute in regard to the adequacy or correctness of the amount of the two bonds. </s> After petitioner instituted the limitation proceeding the respondent filed a claim for $250,000 in it covering the same loss asserted in her state court case. The 10 survivors, including those who had filed suits in the state court, also filed their claims in the limitation proceeding. These totaled only $9,525. All of the claimants, including respondent, have relinquished all right to any damage in excess of the amounts set forth in their respective claims in the limitation proceeding and expressly limited their recovery to those amounts. The respondent has amended her claim further by allocating $100,000 of her alleged damage to the tug and the remaining $150,000 to the barge. She has also filed stipulations agreeing neither to increase these claims, nor to enter into a judgment in excess of these amounts, and she has waived any claim of res judicata relative to the issue of the petitioner's right to limit liability if that issue should be passed on in the state court proceeding. The District Court on application then vacated the restraining order since the total fund exceeded the amount of the claims. [354 U.S. 147, 150] 137 F. Supp. 311. The Court of Appeals for the Second Circuit affirmed, entering an order, to which respondent has also agreed, with respect to the state court suit, as follows: </s> "`If claimant obtains a judgment in her state court suit for an amount in excess of $100,000, an injunction will issue permanently enjoining her from collecting such excess unless the judgment rests on a special verdict allocating the amount as between the libelant as owner of the tug and as owner of the barge respectively. Thus if the judgment exceeds $100,000 and the jury finds libelant liable solely as owner of the tug, she will be enjoined from collecting any excess. If the jury finds that the libelant is liable solely as owner of the barge, she will be enjoined from collecting any amount in excess of $150,000.'" 232 F.2d 573, 577. </s> On rehearing the Second Circuit, sitting en banc, reaffirmed its decision. 235 F.2d 783. We granted certiorari to pass upon the important jurisdictional question presented. 352 U.S. 914 . </s> This Court has recently considered the cases which discuss the historical background of the Limited Liability Act, R. S. 4281-4289, as amended, 46 U.S.C. 181-196, in British Transport Commission v. United States, ante, p. 129. It was there pointed out that the Act was adopted primarily to encourage the development of American merchant shipping. The first section of the Act here involved contains its fundamental provision which declares that the liability for any damage arising from a disaster at sea which is occasioned without the privity or knowledge of the shipowner shall in no case exceed the value of the vessel at fault together with her pending freight, 46 U.S.C. 183. As Mr. Justice Van Devanter stated for a unanimous Court in White v. [354 U.S. 147, 151] Island Transportation Co., 233 U.S. 346, 351 (1914), "The succeeding sections are in the nature of an appendix and relate to the proceedings by which the first is to be made effective. Therefore, they should be so construed as to bring them into correspondence with it." Among these sections dealing with the mechanics of effecting such limitation of liability is 184 covering those incidents where "the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of [the claimants]." In that event, the section continues, "they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose" the owners "may take the appropriate proceedings in any court . . . ." (Emphasis added.) The succeeding section provides that in such an event the owner "may petition a district court of the United States . . . for limitation of liability within the provisions of this chapter . . . ." It further declares that upon compliance with its requirements "all claims and proceedings against the owner with respect to the matter in question shall cease." This provision is implemented by Rule 51 of our Admiralty Rules which spells out in more detail the manner in which the owner of any vessel who "shall desire to claim the benefit of limitation of liability . . ." shall proceed. It is, therefore, crystal clear that the operation of the Act is directed at misfortunes at sea where the losses incurred exceed the value of the vessel and the pending freight. And, as is pointed out in British Transport Commission, supra, where the fund created pursuant to the Act is inadequate to cover all damages and the owner has sought the protection of the Act the issues arising from the disaster could be litigated within the limitation proceeding. Otherwise the purpose of the Act, i. e., limitation of the owner's liability, might be frustrated. Only in this manner may there be a marshalling of all of the statutory assets remaining after the [354 U.S. 147, 152] disaster and a concourse of claimants. In such a situation it matters not to the owner what the "take" of the individual claimant may be from the proceeding for under the Act his payment is limited to the value of the vessel and the pending freight. He can suffer no more in any event. </s> On the other hand, where the value of the vessel and the pending freight, the fund paid into the proceeding by the offending owner, exceeds the claims made against it, there is no necessity for the maintenance of the concourse. This is not to say that concursus is not available where a vessel owner in good faith believes the fund inadequate, but here there is no contention that there might be further claims; the value of the vessels is undisputed and the claims are fixed; it follows indubitably that the fund is sufficient to pay all claims in full. While it is true that the claims as initially filed in the state court exceeded the fund created in the limitation proceeding, still when the admiralty court dissolved the injunction against the state suit these claims, as filed in and limited by stipulation and order of the admiralty court in the limitation proceeding, aggregated less than the fund. On appeal the Court of Appeals placed even more severe restrictions on the state court prosecution, thus insuring beyond doubt that petitioner's right of limitation under the Act was fully protected. </s> For us to expand the jurisdictional provisions of the Act to prevent respondent from now proceeding in her state case would transform the Act from a protective instrument to an offensive weapon by which the shipowner could deprive suitors of their common-law rights, even where the limitation fund is known to be more than adequate to satisfy all demands upon it. The shipowner's right to limit liability is not so boundless. The Act is not one of immunity from liability but of limitation of it and we read no other privilege for the shipowner into its language over and above that granting him limited [354 U.S. 147, 153] liability. In fact, the Congress not only created the limitation procedure for the primary purpose of apportioning the limitation fund among the claimants where that fund was inadequate to pay the claims in full, but it reserved to such suitors their common-law remedies. 63 Stat. 101, 28 U.S.C. 1333. 2 In view of this explicit mandate from the Congress the respondent must not be thwarted in her attempt to employ her common-law remedy in the state court where she may obtain trial by jury. </s> The state proceeding could have no possible effect on the petitioner's claim for limited liability in the admiralty court and the provisions of the Act, therefore, do not control. Langnes v. Green, 282 U.S. 531, 539 -540 (1931). It follows that there can be no reason why a shipowner, under such conditions, should be treated any more favorably than an airline, bus, or railroad company. None of them can force a damage claimant to trial without a jury. They, too, must suffer a multiplicity of suits. Likewise, the shipowner, so long as his claim of limited liability is not jeopardized, is subject to all common-law remedies available against other parties in damage actions. The Act, as we have said, was not adopted to insulate shipowners from liability but merely to limit it to the value of the vessel and the pending freight. It is contended that Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954), is to the contrary. While there was no opinion [354 U.S. 147, 154] of the Court in that case, it involved an alleged clash between Louisiana's direct action statute and the Act. The majority concluded there was no clash. The amount of the claims there far exceeded the value, if any, of the vessel and the pending freight. The language in one opinion to the effect that concursus is "the heart" of the limitation system therefore refers to those cases where the claims exceed the value of the vessel and the pending freight. In that event, as we have pointed out, the concursus is vital to the protection of the offending owner's statutory right of limitation. But this is not to say that where concursus is not necessary to the protection of this statutory right it is nonetheless required. </s> We conclude that in the situation here a concursus beyond that required by the orders heretofore entered in this case is not necessary and respondent may therefore proceed with her state court suit. </s> Affirmed. </s> MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 R. S. 4285, as amended, 46 U.S.C. 185. </s> [Footnote 2 The forerunner of the current section gave the District Courts jurisdiction "Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it . . . ." 42 Stat. 634, 28 U.S.C. (1946 ed.) 41 (3). As re-enacted it reads, in pertinent part, that the District Courts have original jurisdiction, exclusive of the courts in the States in "Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 63 Stat. 101, 28 U.S.C. 1333. </s> MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE BURTON join, dissenting. </s> I agree with the result reached by Judge Hincks in his dissenting opinion below, 232 F.2d 573, 579, and think that this judgment should be reversed. Since federal limitation jurisdiction was properly invoked, we should not permit it to be aborted by subsequent actions by the claimants with a view to obtaining transfer of the trial of their claims to the state courts. At the time the limitation proceeding was commenced the total claims which had been asserted in the several state court actions far exceeded the value of both the vessels owned by the petitioner, and limitation proceedings were required. [354 U.S. 147, 155] The steps subsequently taken by the claimants to limit their maximum recovery against the petitioner should no more be allowed to defeat or impair the full effectiveness of the limitation proceeding than would a subsequent reduction in the amount involved be permitted to defeat a diversity jurisdiction which had initially been properly invoked. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 . </s> [354 U.S. 147, 156]

United States Supreme Court RICHMOND TELEVISION CORP. v. UNITED STATES(1965) No. 420 Argued: Decided: November 8, 1965 </s> Certiorari granted; 345 F.2d 901, vacated and remanded. </s> Robert T. Barton, Jr., for petitioner. </s> Solicitor General Marshall and Acting Assistant Attorney General Roberts for the United States. </s> PER CURIAM. </s> The petition for writ of certiorari is granted. In the light of the representations of the Solicitor General, and an independent examination of the record, we believe that the Court of Appeals for the Fourth Circuit was mistaken in its view that the petitioner's amortization claims for the taxable years 1956 and 1957 were not properly before it. Although the record is not free from ambiguity, we take the Court of Appeals to have based its decision on the ground that the petitioner's amortization claims derived solely from net operating loss deductions carried forward from prior years, and that no additional amortization deductions for 1956 and 1957 were sought. Since we find that the petitioner adequately presented its amortization claims for 1956 and 1957, we vacate the judgment of the Court of Appeals and remand the case to that court for the consideration of those claims, without intimation of any kind as to their merit. </s> [382 U.S. 68, 69]

United States Supreme Court FEDERAL POWER COM'N V. INTERSTATE NATURAL GAS CO.(1949) No. 109 Argued: Decided: April 18, 1949 </s> Natural Gas Co. 336 U.S. 577 (1949) ] </s> [336 U.S. 577 , 579] </s> Mr. Bradford Ross, of Washington, D.C., for Federal Power commission. Mr. John P. Randolph, of St. Joseph, Mo., for Public Service Commission of Missouri. Mr. William C. Wines, of Chicago, Ill., for Illinois Commerce Commission. Mr. John T. Cahill, of New York City, for Memphis Natural Gas Company. Mr. Forney Johnston, of Birmingham, Ala., for Southern Natural Gas Company. Mr. William A. Dougherty, of New York City, for Interstate Natural Gas Company and Mississippi River Fuel Corporation. Mr. Charles C. Crabtree, of Memphis, Tenn., for Memphis Light, Gas & Water Division. </s> Mr. Justice DOUGLAS delivered the opinion of the Court. This case, here on certiorari, involves the proper disposition of a fund accumulated under a stay order issued </s> [336 U.S. 577 , 580] </s> by the Court of Appeals pending review of a rate order issued by petitioner. That order reduced the rates for natural gas on sales by Interstate Natural Gas Co. to Mississippi River Fuel Corp , Southern Natural Gas Co., and United Gas Pipe Line Co. for resale to Memphis Natural Gas Co., and on sales by Interstate to Memphis. The Court of Appeals sustained the order, 5 Cir., 156 F.2d 949, and we affirmed its judgment, 331 U.S. 682 . Interstate deposited in the registry of the court pending review the monthly difference between payments under existing rates and those required under the order of the Commission. Interstate has now moved in the Court of Appeals for a distribution of the fund. The pipe-line companies-Mississippi, Southern, United,1 and Memphis-claimed the fund and asked that it be distributed to them. Petitioner and certain state and municipal agencies also intervened, opposing distribution to the pipe-line companies and claiming that it should be made to the ultimate consumers of the gas or to such others as may be equitably entitled to it. The Court of Appeals, relying on Central States Electric Co. v. Muscatine, 324 U.S. 138 , ordered the fund to be paid to those from whom Interstate wrongfully exacted the payments, viz., the pipe-line companies, without prejudice to such rights as others may have to hold those companies accountable for the amounts involved. 5 Cir., 166 F.2d 796. First. Here, unlike Central States Electric Co. v. Muscatine, supra, the distributing companies that seek return of the fund created from their payments of the excessive rates are subject to the jurisdiction of the Federal Power Commission, since they are natural gas companies engaged in the transportation or sale at wholesale of natural gas in interstate commerce. See Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498 . The claims of these pipe- </s> [336 U.S. 577 , 581] </s> line companies to the fund are therefore determinable solely with reference to federal law, since the Natural Gas Act, 52 Stat. 821, 15 U.S. C. 717, 15 U.S.C.A. 717, is designed to regulate the segment of the industry occupied by such distributors. See Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682 , 689-690, 1486, 1487; Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 610 , 291. We may not therefore sustain the action of the Court of Appeals unless it is clear as a matter of federal law that the pipe-line companies are entitled to the fund. The basis of the claim stated in their petitions for intervention is that they are entitled to the fund as of right, since it was created by their payments. But we would be unmindful of the purpose of the Act and the responsibility of the federal courts under it, if we so ruled. The aim of the Act was to protect ultimate consumers of natural gas from excessive charges. See Federal Power Commission v. Hope Natural Gas Co., supra, 320 U.S. at pages 610, 612, 64 S.Ct. at pages 291, 292. They were the intended beneficiaries of rate reductions ordered by the federal commission, though state machinery might have to be invoked to obtain lower rates at the consumer level. The rates charged a wholesaler are part of its costs, reflected in its rate base. Reduction of those costs normally will lead in due course to reduction in its resale rates, unless we are to assume that the passage of the Natural Gas Act was an exercise in futility. It is of course conceivable that a wholesaler might be warranted in keeping all or a part of the rate reduction under the standards of reasonableness prescribed by the Act. But a court would not be warranted in assuming that the rates which have been charged are so low as to be unreasonable. No such presumption attends rates which have been fixed pursuant to rate orders of the Commission. Nor can we make any such presumption as respects rates fixed </s> [336 U.S. 577 , 582] </s> by the utilities themselves without the compulsion of a rate order. For experience does not indicate that utilities are wont to charge themselves out of business. The pipe-line companies in their petitions for intervention make no claim that their rates have been so low that they are entitled to these refunds as a matter of law. Were that issue tendered the court would need to resolve it and could call upon the Federal Power Commission for information relevant to it. Moreover, if the pipe-line companies passed on to their customers the rate reductions from the date of the Commission's order (as Mississippi alleges it did), they would be entitled to a return of the payments they made into the fund. They would then have done all that was in their power to effectuate the policy of the Act in this regard. But apart from those exceptions, it is the duty of the court to look beyond those companies for the rightful claimants of the funds. It is the responsibility of the court which distributes the fund accumulated under its stay order 'to correct that which has been wrongfully done by virtue of its process.' United States v. Morgan, 307 U.S. 183, 197 , 802. That responsibility plainly cannot be discharged by payment of the fund to those who show no loss by reason of the court's action. It is said that the federal court could not bypass the pipe-line companies without undertaking to pass on the reasonableness of the rates which they have charged-a matter beyond its competence except on review or orders of the Commission. But it is not remaking to determine the equity of the claim of the pipe-line companies to the fund. The federal court, through exercise of its power under 19 of the Act, issued the stay order under which the fund was accumulated. When a federal court of equity grants relief by way of injunction it has a responsibility to protect all the interests whom its injunction may affect. Inland Steel Co. v. </s> [336 U.S. 577 , 583] </s> United States, 306 U.S. 153 . It assumes the duty to make disposition of the fund in accord with equitable principles. United States v. Morgan, supra, 307 U.S. at page 191, 59 S.Ct. at page 799. If in a particular case the court reaches the question of reasonableness of rates, it does so only for purposes of distributing the fund for whose creation it alone was responsible. It does not fix or prescribe rates for the past or the future. The reasonableness of rates charged by the companies who claim the fund is wholly ancillary to the problem of determining what claimants are equitably entitled to share in it. See Atlantic Coast Line R. Co. v. Florida, 295 U.S. 301 ; United States v. Morgan, supra. Second. The problem is somewhat more complicated if distribution of the fund is to be made to claimants other than the pipe-line companies. The latter sell gas to at least two types of customers-industrial users over whose rates the Federal Power Commission has no jurisdiction2 and over which state regulatory bodies may or may not, depending on local law; and numerous distributing companies selling to customers in eight states. If the pipe-line companies had passed the rate reductions on to the distributing companies those reductions may or may not have reached the ultimate consumers. We likewise do not know whether the reductions would have reached the industrial users either by terms of the contracts or by virtue of the assertion of regulatory authority. If in this situation local law rpovides a standard for determining which of two or more claimants would have been entitled to the benefits of the rate reduction, the federal court should apply it. If clear and speedy state remedies are available, the federal court might hold the fund until those having the final say on the state law questions have spoken. Cf. Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 483 , 630, 84 L.Ed 876; Spector Motor Service v. </s> [336 U.S. 577 , 584] </s> McLaughlin, 323 U.S. 101 . But in absence of uch a showing the federal court in the interest of dispatch should proceed to determine the questions, relying on such sources of local law as may be available, including information from state regulatory agencies. The federal court may in its discretion disburse the funds directly to either the local distributing companies or the ultimate consumers or work out an administrative scheme whereby the distribution is made pursuant to directives of state agencies. In conclusion, the task of the federal court in distributing the fund accumulated by virtue of its stay order is to undo the wrong which its process caused. The basic problem, therefore, is not to fix rates but to determine who suffered a loss as a result of the court's action in granting the stay. What in fact would have happened as a consequence of federal or state law if the stay had not been issued, no one can know for a certainty. But the federal court must make its prognostication, whether an excursion into federal or state law questions is entailed. Distribution of the fund should not involve prolonged litigation. It is an administrative matter involving the exercise of an informed judgment by the federal court and should have the flexibility and dispatch which characterize the administrative process. Reversed. </s> FRANKFURTER, Justice, concurring. While agreeing in substance with Mr. Justice DOUGLAS's opinion, because of the conflict of views to which the case has given rise I deem it desirable to spell out with particularity what I regard as the controlling considerations. 1. The controversy concerns the proper disposition of a fund impounded in the Court of Appeals by virtue of the Court's suspension of a rate reduction order of the </s> [336 U.S. 577 , 585] </s> Federal Power Commission. Interstate paid into the registry of the court the sums collected by it in excess of the rates fixed by the Commission. After the order was finally sustained Interstate moved the court for distribution of the fund to the three companies which, as customers of Interstate, paid the unlawfully exacted amounts. The motion was supported by the three purchasers from Interstate; it was resisted by the Federal Power Commission which asked that distribution be made to the ultimate consumers; it was also resisted by the City of Jackson and by the regulatory commissions of Illinois and Missouri, which likewise urged that distribution be made to the ultimate consumers within their respective territories. One of Interstate's purchasers, United Gas Pipe Line Company, although intervening as a claimant, advised the court that it would pass on its share of the refund to the Memphis Natural Gas Company, to which United had resold the gas purchased from Interstate. 2. The court below thus had before it claims upon the fund by two immediate purchasers from Interstate, which asserted their right to the amounts paid into the fund by them, by a third purchaser from Interstate which made claim upon the fund but merely as a conduct for its passage to a subpurchaser, and by public agencies-national, state and municipal-which urged that the entire fund be distributed to the ultimate consumers. The respondents-Interstate and the three immediate purchasers from it- basically rely on Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531 , in urging that the fund should go to the immediate depositors from whom it was found to have been wrongfully exacted. They deem that case to be the foundation of our decision in Central States Electric Co. v. City of Muscatine, 324 U.S. 138 . The Government on the other hand asks that the Muscatine case be overruled and that the fund should go to the ultimate consumers. </s> [336 U.S. 577 , 586] </s> In the Muscatine case this Court rejected the notion that as between a utility like Interstate and its immediae purchasers a rate reduction makes the distributors mere conduits of the reduction for the exclusive benefit of the ultimate consumers. In short, the rationale of the M scatine case is that that which is in fact not true in the process of rate- fixing ought not to be erected into a principle of law merely because the effect of a rate-reduction is postponed through an exercise of the right to judicial review afforded by the Congress. 3. It would, therefore, appear to be clear that the judicial duty is to deal fairly with a trust fund held to await the with a trust fund held to await the it may be distributed on the basis of what would have taken place had the Power Commission's order gone into effect at once. The task, then, for the Court of Appeals is to reconstruct, as far as it can possibly be done, what would have happened had no fund accrued. Reasons of equity produced the fund; equitable considerations must determine its distribution. The governing principle is that of unjust enrichment. Since the task of the court is to place the parties in the position in which they would have been had there not been a postponement of the effective date of the rate-reduction, it is now the duty of the court to make that retrospective determination not by unfounded assumptions erected into rigid legal rules, but by an ascertainment of what actually would have happened contemporaneously had purchasers from Interstate obtained their gas at the lower rate. 4. A utility is entitled to charge a reasonable rate. It would be dealing with a fiction and not a fact to hold as a matter of law either that the immediate purchasers from Interstate should keep the benefit of the reduced rate or that it should all go to the ultimate consumers. Whether the three purchasers or the intervening distribu- </s> [336 U.S. 577 , 587] </s> tors are entitled to any part of the reduction depends on the ascertainable condition of the three purchasers from Interstate and the intermediate purchasers from them. A merely compensatory rate below which no rate may be fixed by a regulatory commission may not be a reasonable rate. See Brandeis, J., in Southwestern Bell Telephone Co. v. Public Service Commission, 262 U.S. 276, 296 , 549, 31 A.L.R. 807. For various reasons a utility may charge, as is well known, less than what as a matter of law it could be compelled to charge. On the other hand, it may charge the maximum of what is reasonable. To distribute the entire fund among the immediate purchasers from Interstate may give them a complete windfall, since they might have been compelled, under their duty to charge only a reasonable rate, to reduce their rates so as to keep none of the Interstate reductions. Since all these purchasers are subject to regulation by the Power Commission, the Power Commission could have ordered such rate reductions in whole or in part. On the other hand to take it all away from them now might work an injustice because they might have been allowed to keep at least part of the reduction. As to the intermediate purchasers that were not subject to the Federal Power Commission, the allowable retention of any part of a reduced rate from a distributor would have turned contemporaneously on state law. To deny both these classes of the intermediate purchasers the right to establish just claim against the fund and to distribute it all among the consumers, moreover, would inevitably leave a sizeable unclaimed amount, and this, of course, would have to go to the depositors as the residuary claimant-it would have to go, that is, to Interstate, the one party least entitled to any of the fund. These arbitrary alternatives-to distribute the whole fund to the immediate purchasers from Interstate or to distribute it all to the ultimate consumers-have at least </s> [336 U.S. 577 , 588] </s> the support of logic though not of justice. A suggested compromise-to go beyond the immediate purchasers and at the same time stop short with those purchasers over whom the Federal Power Commission has authority-is said to be justified by the fact that a federal court cannot engage in rate regulation. This suggestion has the support neither of logic nor of justice. If a federal court is arred from inquiring, because such an inquiry amounts in effect to rate regulation, what would have been the consequences to all those affected had the reduction of Interstate's rate gone into immediate effect, rates administered by the Federal Power Commission should be no more open to such an inquiry than are those beyond the power of the Commission. And if it would be unjust to let an immediate distributee which had passed on the higher rate to its purchasers retain the benefit of the reduction, it would be equally unjust to let any succeeding distributee which had done the same thing enjoy the benefit merely because it was the last distributee subject to the Commission's jurisdiction. At all events, in preventing unjust enrichment a court of equity is not exercising the functions of rate-making; it is neither awarding reparations for the past nor fixing a future schedule as does a rate- regulating body. Granting that a federal court does not have the power to regulate rates, it does not follow that in discharging the duty to distribute a fund of its own creation it is barred from an inquiry which has some aspects-though I believe very minor ones-that would also appear in a rate proceeding. In short, issues that may be pertinent to a rate investigation before a regulatory commission are not therefore beyond the power of judicial inquiry when they arise in a totally different relation. 5. Accordingly, the task for the court below is to determine in 1949 how the Interstate rate reduction would have affected all the intermediate distributors in '43 and </s> [336 U.S. 577 , 589] </s> '44 had it not been suspended by the court's injunction. The Court of Appeals has inherent powers to bring to its aid all effective means to discharge this task. This Court, in Ex parte Peterson, 253 U.S. 300, 40 S. Ct. 543, showed the resources available to our District Courts even in an action at law when due regard must be had for the requirements of the Seventh Amendment. The more clearly available are procedures for doing justice where a court of equity is called upon to distribute a trust fund of its own creation. In the light of the foregoing, the Court of Appeals should ask the Federal Power Commission for an advisory report as to what the Commission might have determined had it in the original proceeding for the reduction of the rates of Interstate exercised its power to bring in all the parties. There is nothing novel in this. District Courts may call upon the Federal Trade Commission to help shape decrees in Sherman Law cases. To be sure, the Clayton Act explicitly so provides. But a court of equity has inherent powers to invite such help from a great agency of the Government. While the Federal Power Commission could, if it chose, decline to render that help, it is inconceivable that it would do so. As to the intermediate purchasers, subject not to the Power Commission but to State or city regulation, the local agencies could be similarly resorted to for aid in the ultimate problem before the lower court of distributing a commingled fund as to which none of the interested parties can fairly be said, as a matter of law, to have an obvious, demonstrated claim. Various obstacles are conceived to stand in the way of the lower court's fulfillment of this task. But it is, to say the least, premature to conjure up abstract difficulties which, as a practical matter, may evaporate in the light of the informed advice which these various regulatory agencies may be able to furnish readily on the </s> [336 U.S. 577 , 590] </s> basis of their available records of the financial condition of the utilities subject to them. It will be time enough to distribute the fund by some makeshift rule of thumb if what is concededly a rule of intrinsic fairness should be found judicially unenforceable. Accordingly, I would remand the case to the Court of Appeals to take steps consistent with the foregoing views. By Mr. Justice JACKSON. Mr. Justice BURTON and I view this case in a different light than do any of our brethre but we have joined in the judgment and the opinion of Mr. Justice DOUGLAS because we deem it important that instructions to the court below carry the concurrence of a majority of this Court. We agree with much but not all of that opinion and where our views differ we are closer to that opinion than to other views expressed here. We repeat our concurrence so that there may be no misunderstanding but with also be express for the record our individual views. The way this case appears to us is this: 1. The three pipe-line companies whose excessive payments made up this fund may not, under the terms of the impounding order, have an absolute right to recover it. However, since this Court found that the money was illegally exacted from them, it would seem to make at least a prima facie case for returning it to their possession. The minimum to which they are entitled is a chance to be heard as to whatever claim they may have to it. As these companies are subject to the Federal Natural Gas Act, a federal court might properly weigh their claims under federal law. 2. Assuming, however, what is not improbable, that none of the pipe- line companies establishes a claim to the fund, the next in right to receive it would be their customers, the local distributing companies. The latter </s> [336 U.S. 577 , 591] </s> are under protection of federal law as to the rates which may be exacted from them by the pipe-line companies but are in no respect under federal law as to the rates they may charge customers. If all of the federal power exerted in the Natural Gas Act had been exercised by the Federal Power Commission, it could not reach or control their customer relations. We do not see, therefore, how a federal court in this litigation can derive from the Act any greater power to enter the local field with refunds than the Power Commission had to enter it for rate-making. There are many legal and practical reasons why the court's function should not be expanded beyond the point where Congress ended the functions of the PowerCommission. 3. The manner and amount by which any repayments to distributing companies would be reflected in reduced rates to consumers, and therefore in rebates, is exclusively for state law. Twenty-one of these distributing companies are involved and they operate in eight states, each with its own principles to govern local rate-making and separate authorities to apply them. We solve no problem by saying that computation of this refund is not rate-making. Of course it is not, but it is so like unto it that no one suggests that any body of law except that of rate-making is applicable. Disguise it with what sophistry we will, the disposition of refunds as between operating companies and customers must be generally based on the local law of rate-making or on no law at all. Some of these companies and their customers are located within the territorial jurisdiction of the Court of Appeals for the Fifth Circuit; others are in the Sixth, Seventh and Eighth Circuits. I know of no legal or practical justification for requiring the Fifth Circuit Court of Appeals to undertake interpretation and application as an original matter of the laws of eight states, several of them beyond its jurisdiction. </s> [336 U.S. 577 , 592] </s> 4. The application of these funds, if they are held to go to the local distributing companies, present difficult questions of policy which it is the responsibility of the states to resolve in their own ways. The federal court should not undertake to resolve them, even if they were less complex. These problems are not solved or evaded by saying that refunds shall go to consumers rather than to the companies. It oversimplifies these problems to treat consumers in the abstract as a class all alike. And it does not dispose of the problems to declare that refunds should be on 'equitable principles' as if there were a defined and accepted body of principles of equity on this subject. Equity in the historical sense- equity jurisprudence-has no guidance to give beyond maxims, such, for exampl , as 'equality is equity.' But here, what is equality? Of course, what no doubt is meant is that the court should apply a sort of natural justice based on popular notions of right dealing. But this does not answer some of the concrete questions which someone must face in final disposition of these funds. I shall mention but few. At the very outset one is faced with the question as to what is an 'equitable' basis of refund as between industrial and domestic consumers. Direct sales to industrial consumers by the three pipe-line companies amounted to 63% of the total for Mississippi River Fuel Company, 18% in the case of Southern Natural Gas Company, and 11% for United Gas Pipe Line Company. In addition to this, other industrial consumers may be served by local distributing companies. The Federal Power Commission proposal, which this Court seems to think should prevail, is that refunds both to industrial and domestic consumers be calculated by dividing the money in proportion to feet of gas sold to each one. On this basis, the Power Commission's exhibit proposes a refund to direct industrial consumers alone of over a million dollars from this fund. The Commission does </s> [336 U.S. 577 , 593] </s> not tell us the prices paid by various classes of consumers. But it is common knowledge that, for a variety of reasons, industries get a much lower price per m.c.f. than domestic users. If we assume it is 50%, then the refund would repay industrials twice as large a proportion of what they have paid for gas per m.c.f. as it would household users. Is this 'equity'? In my dissent in Federal Power Commission v. Hope Natural Gas Co ., 320 U.S. 591 , I pointed out the uneconomic use of gas in industry and the waste and exhaustion of irreplaceable natural resources that it causes, and the great differential that exists between their low contract price and the price paid by domestic users. I have great doubt whether the industrial users have any just basis for participating in this refund; but if they could, and they certainly are entitled to try, their share should not be greater than their proportion of the revenues contributed, rather than of their proportion of the consumption. The latter measures only the benefits they already have derived from exhausting the Nation's supplies, not at all what they have contributed to the fund. This Court refused to consider these equities, as did also the Power Commission, in the Hope case. Why not then leave the states free to solve the issue? Some of the states may have an intelligent policy with reference to the rapid depletion of our gas reserves, vis a vis domestic and industrial consumption, and the relation of price to uneconomic uses. The Federal Government has none. The Power Commission has furnished a tabulation showing the share of each local distributing company under its theory. But it has not provided any of the data which would disclose the magnitude and complexity of the task it is asking us to visit upon the Court of Appeals by directing it to go beyond this and distribute each company's share among its consumers. By reference to Moody's Manual, however, we can learn the </s> [336 U.S. 577 , 594] </s> approximate number of customers served by each company. Then by applying the Power Commission's tabulation of the share of refunds, it would appear that refunds for some companies would be so trivial that a state supervising authority might conclude that to cover this refund into the current revenues of the operating company for whatever effect it might have on its present or future rates would be a more sensible procedure than to spend it in expense of special proceedings to refund to consumers. For instance, Arkansas-Louisiana Gas Co. serves 142,481 customers in 109 communities. The Power Commission allocates it $20,911, or an average 15 per consumer. The Illinois Power serves 116,000 customers in 56 communities and is allocated $50,065, or about 43 per consumer. Birmingham Gas serves 61,000 consumers in 9 communities and is allocated $ 30, 33, making an average refund of about 49. The foregoing estimate of consumer refunds assumes an equal amount to each consumer. Another permissible basis, and I should think, a fairer one where substantial amounts were involved, would be a refund in ratio to the bills paid for gas. The Power Commission, however, if consistent, would use another method and refund in proportion to the feet of gas purchased by the consumer. Different local conditions precipitate some nice questions in applying any fair method as between consumers. From Moody's Manual, for example, we learn that one of the largest of the distributing companies, the Atlanta Gaslight Co., with serves approximately 133,000 consumers in 28 communities, has a graduated scale of rates, so that consumers pay different rates for gas consumed in different quantity brackets. I should think the practical effect of its schedule would be that a very large consumer would make an average payment much less per thousand feet than would a moderate household consumer. Equality of refund may not be equality of treatment. It will take </s> [336 U.S. 577 , 595] </s> more than equalitarian generalities to get this cash into consumers' hands. Is not the manner of refund under such local conditions one to be worked out by local authorities rather than the federal court of a distant circuit? The problems do not end here. Consumers during what period are entitled to refund? Certainly the rate reduction which caused this fund to accumulate could not in normal course have reached local retail consumers until sometime after reduction in wholesale rates, and the period would differ according to local conditions. The individuals who are entitled to refund, for whatever period may be adopted, must be identified and questions settled as who is entitled to the refund of a deceased consumer, what becomes of the share of one who has removed or is unknown. Disputes between landlord and tenant, husband and wife, and many other questions will arise; all of which are for local authorities. For these reasons it seems to us that the functions of the federal court end when it has granted these refunds to the last purchaser whose purchase price the federal authority can lawfully reduce. This would be the distributing companies. From there on it is a local problem with which neither the Power Commission nor the court has any legitimate concern. The machinery of some of the states may be somewhat inadequate for dealing with the problem, but that does not, in our view, warrant usurpation of their functions. However, for reasons stated at the beginning of this opinion, Mr. Justice BURTON and I have joined the judgment and opinion of the Court. </s> Mr. Justice BLACK, concurring in part and dissenting in part. I concur in reversal of the judgment of the Court of Appeals, but dissent from the directions given that court for disposition of the impounded funds. In the first </s> [336 U.S. 577 , 596] </s> place I think those directions rest on erroneous legal principles. Secondly, without precise definition of issues or standards, the directions impose an almost impossible task on the Court of Appeals, a task which is bound to dissipate a large part of the funds in diverse, protracted, involved and confused litigation. Furthermore, I see little assurance that the fund's remnant at the end of this litigation could ever reach the consumers who are in my judgment the equitable and legal beneficiaries of the funds. Acting pursuant to the Natural Gas Act,1 the Federal Power Commission ordered the Interstate Natural Gas Company to reduce its rates to certain wholesale pipe-line companies. Challenging this order as illegal, the wholesale companies sought and obtained from a District Court an injunction against enforcement of the rate reduction order. By reason of the injunction the pipe-line companies were compelled to continue to pay the higher gas rates. But the court required the Natural Gas Company to make monthly payment into court of amounts equal to the rate reduction. For more than four years these funds have been collected and paid into court. When this case was submitted, the total amount collected was in excess of two and a half million dollars. The rate reduction order was sustained by this Court2 and consequently Interstate is not entitled to and asserts no claim to the fund. The wholesale pipe-line companies claim it on the ground that but for the injunction they would have obtained the gas at the lower rate. 3 The </s> [336 U.S. 577 , 597] </s> Federal Power Commission and certain state agencies here contend that since the purpose of the Natural Gas Act was to provide benefits to the ultimate consumers the total impounded funds should be distributed to the consumers. First. I agree with the Court that the aim of the Federal Act was to protect ultimate consumers of gas from excessive charges. To protect the ultimate consumer, however, the Act went no further than to fix the interstate rates of producers and wholesalers. Congress intended that these federal rate reductions would lower the costs of gas to local retailers, thus enabling state and local agencies to fix lower consumer rates on the federally fixed lower wholesale rates. Consequently, where courts leave the Act's scheme free to function, ultimate consumers of gas get no benefits from the federally reduced producer rates until and unless state or local authorities fix reduced rates for companies whose sales fall within their respective jurisdictions. Under such circumstances rate relationships and cost consequences as between consumers and dealers under state jurisdiction would raise questions of state law only. But here, the normal consequences of the valid federal rate reduction were not allowed to take place. The injunction placed an insuperable obstacle to state reduction of wholesale or retail rates on the basis of the federal rate reduction order. Thus the court's stay blocked the congressional mechanism intended to produce lower consumer rates. Central States Electric Co. v. Muscatine, 324 U.S. 138, 149 , 570 (dissenting opinion). Furthermore, no practical remedy is available in the state courts or state or federal regulatory agencies to determine retroactively what is a proper distribution of the impounded funds. The judicial stay therefore effectually frustrated the congressional purpose to provide a timely opportunity for state or national </s> [336 U.S. 577 , 598] </s> regulatory agencies to accord consumers the Act's benefits. Consequently, rights in the fund as between ultimate consumers and the pipe-line companies must be determined under the new situation created by the federal court. Second. Different from the Court, I think that distribution of the fund in this new situation is wholly a matter of federal law and that the fund should be distributed without a futile effort to determine the extent consumer rates might have been reduced by state or national regulatory agencies had they been left free to act on the reduced rate cost of gas. It was a federal court acting under authority of federal law that created the fund. And having deprived consumers of an opportunity to get the reduced rates Congress intended them to have as the result of an integrated federal-state course of conduct, it became the duty of the federal court to administer this fund under federal rules that would as nearly as possible afford these congressionally intended benefits to consumers. Nothing short of this will accord with the congressional purpose or with equitable principles by which the court must be governed in administering the fund. Inland Steel Co. v. United States, 306 U.S. 153 ; United States v. Morgan, 307 U.S. 183 . All ga the wholesale price of which was affected by the Commission's order had its ultimate price to the consumer fixed by law or by agreement of parties. 4 In neither event can it be assumed that the price paid failed to give the seller a reasonable value. Under such circumstances, where rates were fixed by law or contract on the basis of the high wholesale rate, neither statutes nor equitable principles require the Court of Appeals to seek standards of reasonableness different from those under which gas merchants voluntarily had already sold their product to </s> [336 U.S. 577 , 599] </s> retailers and consumers. All regulatory statutes permit utilities to complain of unreasonable rates, and the failure of these utilities to prosecute claims for excess rates until this windfall was in sight should bar them from making retroactive claims now. And of course, where the price was fixed by voluntary contracts, the court should not be required to re-examine those contracts on the naive assumption that consumers took an unconscionable advantage of the pipe-line companies. My belief is that under the circumstances here the only way even partially to carry out the purpose of Congress to afford consumer relief is by distributing this fund to the consumers. This itself will impose a tedious, onerous, and perhaps expensive burden on the court and the consumers. Such a burden, however, is one of the prices to be paid for the practice of judicial suspension of rate orders. But the burden in distribution to consumers would be small in comparison to that imposed by requiring the court in 1949 and 1950 to make expensive and extensive explorations to speculate on what rates state administrative agencies would have found reasonable in separate years from 1943 to 1947.5 Neither the procedure I suggest nor that adopted by the Court can achieve with scientific accuracy the result that would have followed had the court not suspended the rate reduction order. But under the Court's plan to require the Court of Appeals to reconstruct hypothetical rate situations in several states a major part of the funds might be dis- </s> [336 U.S. 577 , 600] </s> sipated in a costly but vain search for an unattainable goal. 6 Consumers at least can get a substantial part of the funds under the procedure I suggest. 7 Nor can I see any possible intrusion into state functions by following such a course. Neither state laws nor state courts are responsible for the tangled situation here. I cannot see where it could p ssibly offend the states or encroach on their power for the federal court to distribute these funds to the very state people the federal law was passed to protect. And the state representatives here arguing for the distribution of this fund to the ultimate consumers, citizens of their states, are apparently unable to detect in distribution to these consumers any invasion of state rights by the federal courts. This seems an appropriate time to reverse Central States Electric Co. v. Muscatine, 324 U.S. 138 . I regret to see that holding survive even in part. Mr. Justice MURPHY and Mr. Justice RUTLEDGE join in this opinion. Footnotes </s> [Footnote 1 United claimed an allocable share on behalf of Memphis to which it had resold the gas which it had purchased from Interstate. </s> [Footnote 2 1(b). </s> [Footnote 1 52 Stat. 821, 15 U.S.C. 717, 15 U.S.C.A. 717. [Footnote 2 Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682 . [Footnote 3 One pipe-line company claims to have passed on the rate reduction to its customers which if proved would put it in an entirely different category. </s> [Footnote 4 As the Court points out, industrial purchasers' rates may not have been fixed by law but by contracts. </s> [Footnote 5 How is this reasonableness to be determined, on the fair value theory, the reproduction cost theory, or some other theory? And how many more years would it take the Court to complete the several extensive inquiries required to reach its conclusions as to reasonableness of the prices charged by the several companies in the several states where they sold gas? See McCart v. Indianapolis Water Co., 302 U.S. 419 , 428Ä439, 328Ä333 (dissenting opinion). </s> [Footnote 6 It is interesting to note the unchallenged assertion in the Government brief that although in Central States Electric Co. v. Muscatine, 324 U.S. 138 , 'this Court required that the way be left open for the ultimate consumers to utilize the remedies, if any, provided by local law, no such proceeding has been brought.' The illusion that state relief is somehow available to the consumers here seems to persist despite the realities that consumers in the Central States case, similarly situated to the consumers here, have not received a dime from the 'available' state remedies. [Footnote 7 Apprehension is expressed in this Court that the procedure I suggest would result in making the producing company the residuary beneficiary of funds not claimed by consumers. Such an apprehension is not justified since the Court of Appeals can direct any unclaimed consumer funds to be distributed to whatever company might show a superior equity.

United States Supreme Court LO-JI SALES, INC. v. NEW YORK(1979) No. 78-511 Argued: April 16, 1979Decided: June 11, 1979 </s> A New York State Police investigator, after purchasing two films from petitioner's "adult" bookstore and after viewing them and concluding that they violated state obscenity laws, took the films to a Town Justice, who also viewed the films. Based on the investigator's affidavit, the justice issued a warrant authorizing the search of the store and the seizure of other copies of the two films. The investigator's affidavit also asserted that "similar" films and printed matter portraying similar activities could be found on the premises and requested that the justice accompany the investigator in executing the warrant so that the justice might determine independently if any other items at the store were possessed in violation of law and subject to seizure. The justice included in the warrant a recital that authorized the seizure of "[t]he following items which the Court independently [on examination] has determined to be possessed in violation" of law. However, at the time the justice signed the warrant no items were listed or described following this statement. The justice also signed a warrant for the arrest of the store clerk for having sold the two films to the investigator. Thereafter, the justice, the investigator, and nine other law enforcement officials entered the bookstore, arrested the clerk (the only employee present), and advised him of the search warrant; they conducted a search that lasted nearly six hours, covering various areas of the store, and examined and seized numerous films, projectors, and magazines. The seized items were inventoried at a State Police barracks and each item was then listed by the police on the search warrant. Petitioner was charged with obscenity in the second degree. The trial court denied petitioner's pretrial motion to suppress the evidence as having been searched for the seized in violation of the First, Fourth, and Fourteenth Amendments; petitioner then entered a guilty plea. As permitted by New York law, petitioner appealed the denial of the motion to suppress, and the convictions were affirmed. </s> Held: </s> 1. The Fourth Amendment does not permit the action taken here, where, except for the specification of copies of the two films previously [442 U.S. 319, 320] purchased by the investigator, the warrant did not purport to particularly describe the things to be seized but, instead, left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not countenance open-ended warrants to be completed while a search is being conducted and items seized or after the seizure has been carried out. Pp. 325-326. </s> 2. The Town Justice's presence and participation in the search did not ensure that no items would be seized absent probable cause to believe that they were obscene; nor did his presence provide an immediate adversary hearing on the issue. The justice conducted a generalized search and was not acting as a neutral and detached judicial officer. This procedure is not authorized by Heller v. New York, 413 U.S. 483 . Here, the Town Justice undertook to telescope the processes of the application for a warrant, the issuance of the warrant, and its execution. Pp. 326-328. </s> 3. The actions involved here cannot be justified on the theory that because the items at issue were displayed in areas of the store open to the general public, petitioner had no legitimate expectation of privacy against governmental intrusion and warrantless search. Merely because a retail store invites the public to enter, it does not consent to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. The actions involved cannot be sustained on the ground that petitioner's clerk consented to the sweeping search. After the clerk was under arrest and aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered voluntary. Pp. 328-329. </s> Reversed and remanded. </s> BURGER, C. J., delivered the opinion for a unanimous Court. </s> Bernard A. Berkman argued the cause and filed briefs for petitioner. </s> Richard L. Parker argued the cause for respondent. With him on the brief was David S. Ritter. * </s> [Footnote * Michael A. Bamberger filed a brief for the American Booksellers Association, Inc., et al. as amici curiae urging reversal. </s> Charles H. Keating, Jr., pro se, Richard M. Bertsch, and James J. [442 U.S. 319, 321] Clancy filed a brief for Charles H. Keating, Jr., as amicus curiae urging affirmance. [442 U.S. 319, 321] </s> MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. </s> We granted certiorari on claims that the seizure of magazines, films, and other objects from petitioner's bookstore violated guarantees of the First, Fourth, and Fourteenth Amendments. 439 U.S. 978 (1978). </s> I </s> On June 20, 1976, an investigator for the New York State Police purchased two reels of film from petitioner's so-called "adult" bookstore. Upon viewing them, he concluded the films violated New York's obscenity laws. On June 25, he took them to a Town Justice for a determination whether there was reasonable cause to believe the films violated the state obscenity laws so as to justify a warrant to search the seller's store. The Town Justice viewed both films in their entirety, and he apparently concluded they were obscene. Based upon an affidavit of the investigator subscribed before the Town Justice after this viewing, a warrant issued authorizing the search of petitioner's store and the seizure of other copies of the two films exhibited to the Town Justice. </s> The investigator's affidavit also contained an assertion that "similar" films and printed matter portraying similar activities could be found on the premises, and a statement of the affiant's belief that the items were possessed in violation of the obscenity laws. The warrant application requested that the Town Justice accompany the investigator to petitioner's store for the execution of the search warrant. The stated purpose was to allow the Town Justice to determine independently if any other items at the store were possessed in violation of law and subject to seizure. The Town Justice agreed. Accordingly, the warrant also contained a recital that authorized the seizure of "[t]he following items that the Court [442 U.S. 319, 322] independently [on examination] has determined to be possessed in violation of Article 235 of the Penal Law . . . ." 1 However, at the time the Town Justice signed the warrant there were no items listed or described following this statement. As noted earlier, the only "things to be seized" that were described in the warrant were copies of the two films the state investigator had purchased. Before going to the store, the Town Justice also signed a warrant for the arrest of the clerk who operated the store for having sold the two films to the investigator. </s> The Town Justice and the investigator enlisted three other State Police investigators, three uniformed State Police officers, and three members of the local prosecutor's office - a total of 11 - and the search party converged on the bookstore. The store clerk was immediately placed under arrest and advised of the search warrant. He was the only employee present; he was free to continue working in the store to the extent the search permitted, and the store remained open to the public while the party conducted its search mission which was to last nearly six hours. </s> The search began in an area of the store which contained booths in which silent films were shown by coin-operated projectors. The clerk adjusted the machines so that the films could be viewed by the Town Justice without coins; it is disputed whether he volunteered or did so under compulsion of the arrest or the warrant. See infra, at 329. The Town Justice viewed 23 films for two to three minutes each and, satisfied there was probable cause to believe they were obscene, then ordered the films and the projectors seized. </s> The Town Justice next focused on another area containing four coin-operated projectors showing both soundless and sound films. After viewing each film for two to five minutes, [442 U.S. 319, 323] again without paying, he ordered them seized along with their projectors. </s> The search party then moved to an area in which books and magazines were on display. The magazines were encased in clear plastic or cellophane wrappers which the Town Justice had two police officers remove prior to his examination of the books. Choosing only magazines that did not contain significant amounts of written material, he spent not less than 10 seconds nor more than a minute looking through each one. When he was satisfied that probable cause existed, he immediately ordered the copy which he had reviewed, along with other copies of the same or "similar" magazines, seized. An investigator wrote down the titles of the items seized. All told, 397 magazines were taken. </s> The final area searched was one in which petitioner displayed films and other items for sale behind a glass enclosed case. When it was announced that each box of film would be opened, the clerk advised that a picture on the outside of the box was representative of what the film showed. Therefore, if satisfied from the picture that there was probable cause to believe the film in the box was obscene, the Town Justice ordered the seizure of all copies of that film. As with the magazines, an investigator wrote down the titles of the films seized, a total of 431 reels. 2 Miscellaneous other items, including business records, were also seized, but no issue concerning them is raised here. </s> Throughout the day, two or three marked police cars were parked in front of the store and persons who entered the store were asked to show identification and their names were taken by the police. Not surprisingly, no sales were made during the period the search party was at the store, and no customers or potential customers remained in the store for any appreciable time after becoming aware of the police presence. [442 U.S. 319, 324] </s> After the search and seizure was completed, the seized items were taken to a State Police barracks where they were inventoried. Each item was then listed on the search warrant, and late the same night the completed warrant was given to the Town Justice. The warrant, which had consisted of 2 pages when he signed it before the search, by late in the day contained 16 pages. It is clear, therefore, that the particular description of "things to be seized" was entered in the document after the seizure and impoundment of the books and other articles. </s> The items seized formed the basis for a three-count information charging petitioner with obscenity in the second degree under New York law. 3 The counts were based upon the three main groups of items seized: the magazines, Count I; the films for sale to the public, Count II; and the films and coin-operated projectors, Count III. Before trial, petitioner moved to suppress all the evidence upon which the three counts were based because it had been searched for and seized in violation of the First, Fourth, and Fourteenth Amendments. The motion was denied. Petitioner then entered a guilty plea to all three counts and was fined $1,000 on each. Accordingly, the obscenity of the magazines and films having been the subject of a judicial confession, there is no issue of obscenity in the case. 4 Only the validity of the warrant and the search and seizure of the property are before us. [442 U.S. 319, 325] </s> New York permits appeal of a denial of a motion to suppress even after a plea of guilty to the charge. N. Y. Crim. Proc. Law 710.70 (2) (McKinney 1971). Pursuant to this procedure, petitioner appealed and the intermediate appellate court for that judicial district affirmed the convictions. A timely application for leave to appeal to the New York Court of Appeals was denied. </s> II </s> This search warrant and what followed the entry on petitioner's premises are reminiscent of the general warrant or writ of assistance of the 18th century against which the Fourth Amendment was intended to protect. See Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978); Stanford v. Texas, 379 U.S. 476, 481 (1965); Marcus v. Search Warrant, 367 U.S. 717, 724 (1961). Except for the specification of copies of the two films previously purchased, the warrant did not purport to "particularly describ[e] . . . the . . . things to be seized." U.S. Const., Amdt. 4. Based on the conclusory statement of the police investigator that other similarly obscene materials would be found at the store, the warrant left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not permit such action. Roaden v. Kentucky, 413 U.S. 496, 502 (1973); Stanford v. Texas, supra, at 485; Marcus v. Search Warrant, supra, at 732. Nor does the Fourth Amendment countenance open-ended warrants, to be completed while a search is being conducted and items seized or after the seizure has been carried out. </s> This search began when the local justice and his party entered the premises. But at that time there was not sufficient probable cause to pursue a search beyond looking for additional copies of the two specified films, assuming the validity of searching even for those. And the record is clear [442 U.S. 319, 326] that the search began and progressed pursuant to the sweeping open-ended authorization in the warrant. It was not limited at the outset as a search for other copies of the two "sample" films; it expanded into a more extensive search because other items were found that the local justice deemed illegal. Therefore, we have no occasion to decide whether in this context the "plain view" doctrine might be applicable. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). 5 Nor can it reasonably be argued that the search was incident to arrest of the store clerk. Chimel v. California, 395 U.S. 752 (1969). </s> III </s> We have repeatedly said that a warrant authorized by a neutral and detached judicial officer is "a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer `engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14 (1948)." United States v. Chadwick, 433 U.S. 1, 9 (1977). See also Coolidge v. New Hampshire, supra, at 450. The State contends that the presence and participation of the Town Justice in the search ensured that no items would be seized absent probable cause to believe they were obscene, and that his presence enabled petitioner to enjoy an immediate adversary hearing on the issue. </s> The Town Justice did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure. Coolidge v. New Hampshire, supra, at 449. We need not question the [442 U.S. 319, 327] subjective belief of the Town Justice in the propriety of his actions, but the objective facts of record manifest an erosion of whatever neutral and detached posture existed at the outset. He allowed himself to become a member, if not the leader, of the search party which was essentially a police operation. Once in the store, he conducted a generalized search under authority of an invalid warrant; he was not acting as a judicial officer but as an adjunct law enforcement officer. When he ordered an item seized because he believed it was obscene, he instructed the police officers to seize all "similar" items as well, leaving determination of what was "similar" to the officer's discretion. Indeed, he yielded to the State Police even the completion of the general provision of the warrant. Though it would not have validated the warrant in any event, the Town Justice admitted at the hearing to suppress evidence that he could not verify that the inventory prepared by the police and presented to him late that evening accurately reflected what he had ordered seized. </s> We also cannot accept the State's contention that it acted in compliance with Heller v. New York, 413 U.S. 483 (1973). There, based on police reports of probable violation of state law, a judge viewed a film in a theater as an ordinary paying patron; on the basis of his observation of the entire performance, he then issued a warrant for the seizure of the particular viewed film as evidence. There was no claim that seizure of the single copy impeded the exhibitor's continued business pending decision on the issue of obscenity. Heller's claim was that not even one of his films could be lawfully seized without a prior adversary hearing. We rejected that claim and held that seizure on the warrant so issued by a neutral judicial officer on probable cause after viewing one film was constitutionally permissible so long as, on request, a prompt adversary hearing was available on the issue of obscenity. "With such safeguards, we do not perceive that an adversary hearing prior to a seizure [of a single sample film] by lawful [442 U.S. 319, 328] warrant would materially increase First Amendment protection." Id., at 493. We also took pains to point out: </s> "Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books [v. Kansas, 378 U.S. 205 (1964),] and Marcus [v. Search Warrant, 367 U.S. 717 (1961),] are fully met. . . . </s> "But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film." Id., at 491-492. </s> In contrast, the local justice here undertook to telescope the processes of the application for a warrant, the issuance of the warrant, and its execution. It is difficult to discern when he was acting as a "neutral and detached" judicial officer and when he was one with the police and prosecutors in the executive seizure, and indeed even whether he thought he was conducting, ex parte, the "prompt" postseizure hearings on obscenity called for by Heller, supra, at 492. Heller does not permit the kind of activities revealed by this record. 6 </s> IV </s> Perhaps anticipating our disposition of the case, the State [442 U.S. 319, 329] raises a different theory from the one advanced in its opposition to the petition for certiorari and on which it had relied in the state courts. The suggestion is that by virtue of its display of the items at issue to the general public in areas of its store open to them, petitioner had no legitimate expectation of privacy against governmental intrusion, see Rakas v. Illinois, 439 U.S. 128 (1978), and that accordingly no warrant was needed. But there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. See Lewis v. United States, 385 U.S. 206, 211 (1966). The Town Justice viewed the films, not as a customer, but without the payment a member of the public would be required to make. Similarly, in examining the books and in the manner of viewing the containers in which the films were packaged for sale, he was not seeing them as a customer would ordinarily see them. </s> Any suggestion that petitioner through its clerk consented to the sweeping search also comes too late. After Lo-Ji's agent was placed under arrest and was aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered free and voluntary. Any "consent" given in the face of "colorably lawful coercion" cannot validate the illegal acts shown here. Bumper v. North Carolina, 391 U.S. 543, 549 -550 (1968). Our society is better able to tolerate the admittedly pornographic business of petitioner than a return to the general warrant era; violations of law must be dealt with within the framework of constitutional guarantees. </s> The judgment of the Appellate Term of the Supreme Court of the State of New York for the Ninth and Tenth Judicial Districts is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. </s> Reversed and remanded. </s> Footnotes [Footnote 1 New York Penal Law 235.00 (McKinney Supp. 1978-1979) is the definitional section of the State's obscenity law. Petitioner was later charged with obscenity in the second degree, 235.05. See n. 3, infra. </s> [Footnote 2 The State's brief asserts approximately 474 films were taken, but from the inventory filed in the case it appears the number was 431. </s> [Footnote 3 New York Penal Law 235.05 (McKinney Supp. 1978-1979) defines obscenity in the second degree as follows: </s> "A person is guilty of obscenity in the second degree when, knowing its content and character, he: </s> "1. Promotes, or possesses with intent to promote, any obscene material . . . ." </s> Section 235.00 of the Penal Law states: </s> "4. `Promote' means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same." </s> [Footnote 4 The clerk arrested at petitioner's store entered a guilty plea to a [442 U.S. 319, 325] charge of disorderly conduct for selling the two films to the State Police investigator. He did not appeal. </s> [Footnote 5 Of course, contraband may be seized without a warrant under the "plain view" doctrine. See, e. g., Ker v. California, 374 U.S. 23, 42 -43 (1963). But we have recognized special constraints upon searches for and seizures of material arguably protected by the First Amendment, e. g., Heller v. New York, 413 U.S. 483 (1973); Marcus v. Search Warrant, 367 U.S. 717, 731 -732 (1961); materials normally may not be seized on the basis of alleged obscenity without a warrant. </s> [Footnote 6 We do not suggest, of course, that a "neutral and detached magistrate," Shadwick v. Tampa, 407 U.S. 345, 350 (1972), loses his character as such merely because he leaves his regular office in order to make himself readily available to law enforcement officers who may wish to seek the issuance of warrants by him. For example, in Heller, the judge signed the search warrant for the seizure of the film in the theater itself. But as we have just pointed out, Heller cannot control this case where the local Town Justice undertook not merely to issue a warrant, but to participate with the police and prosecutors in its execution. </s> [442 U.S. 319, 330]

United States Supreme Court HOLMES GROUP, INC. v. VORNADO AIR CIRCULATION SYSTEMS, INC.(2002) No. 01-408 Argued: March 19, 2002Decided: June 3, 2002 </s> Petitioner filed a federal-court action, seeking, inter alia, a declaratory judgment that its products did not infringe respondent's trade dress and an injunction restraining respondent from accusing it of such infringement. Respondent's answer asserted a compulsory patent-infringement counterclaim. The District Court ruled in petitioner's favor. Respondent appealed to the Federal Circuit, which, notwithstanding petitioner's challenge to its jurisdiction, vacated the District Court's judgment and remanded the case. </s> Held:The Federal Circuit cannot assert jurisdiction over a case in which the complaint does not allege a patent-law claim, but the answer contains a patent-law counterclaim. Pp.3-8. </s> (a)The Federal Circuit's jurisdiction is fixed with reference to that of the district court, 28 U.S. C. §1295(a)(1), and turns on whether the action is one "arising under" federal patent law, §1338(a). Because §1338(a) uses the same operative language as §1331, which confers general federal-question jurisdiction, the well-pleaded-complaint rule governing whether a case arises under §1331 also governs whether a case arises under §1338(a). As adapted to §1338(a), the rule provides that whether a case arises under patent law is determined by what appears in the plaintiff's well pleaded complaint. Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 809. Because petitioner's well pleaded complaint asserted no claim arising under patent law, the Federal Circuit erred in asserting jurisdiction over this appeal. Pp.3-4. </s> (b)The well-pleaded-complaint rule does not allow a counterclaim to serve as the basis for a district court's "arising under" jurisdiction. To rule otherwise would contravene the face-of-the-complaint principle set forth in this Court's prior cases, see, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 392, and the longstanding policies furthered by that principle:It would leave acceptance or rejection of a state forum to the master of the counterclaim rather than to the plaintiff; it would radically expand the class of removable cases; and it would undermine the clarity and ease of administration of the well-pleaded-complaint doctrine. Pp.4-6. </s> (c)As for respondent's alternative argument, that reading §§1295(a)(1) and 1338(a) to confer appellate jurisdiction on the Federal Circuit whenever a patent-law counterclaim is raised is necessary to effectuate Congress's goal of promoting patent-law uniformity:This Court's task is not to determine what would further Congress's goal, but to determine what the statute's words must fairly be understood to mean. It would be impossible to say that §1338(a)'s "arising under" language means the well-pleaded-complaint rule when read on its own, but respondent's complaint-or-counterclaim rule when referred to by §1295(a)(1). Pp.6-7. </s> 13 Fed. Appx. 961, vacated and remanded. </s> Scalia, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Kennedy, Souter, Thomas, and Breyer, JJ., joined, and in which Stevens, J., joined as to Parts I and II-A. Stevens, J., filed an opinion concurring in part and concurring in the judgment. Ginsburg, J., filed an opinion concurring in the judgment, in which O'Connor, J., joined. </s> THE HOLMES GROUP, INC., PETITIONER v. VORNADO AIR CIRCULATION SYSTEMS, INC. </s> on writ of certiorari to the united states court of appeals for the federal circuit </s> [June 3, 2002] </s> Justice Scalia delivered the opinion of the Court. </s> In this case, we address whether the Court of Appeals for the Federal Circuit has appellate jurisdiction over a case in which the complaint does not allege a claim arising under federal patent law, but the answer contains a patent-law counterclaim. </s> I </s> Respondent, Vornado Air Circulation Systems, Inc., is a manufacturer of patented fans and heaters. In late 1992, respondent sued a competitor, Duracraft Corp., claiming that Duracraft's use of a "spiral grill design" in its fans infringed respondent's trade dress. The Court of Appeals for the Tenth Circuit found for Duracraft, holding that Vornado had no protectible trade-dress rights in the grill design. See Vornado Air Circulation Systems, Inc. v. Duracraft Corp., 58 F.3d 1498 (1995) (Vornado I). </s> Nevertheless, on November 26, 1999, respondent lodged a complaint with the United States International Trade Commission against petitioner, The Holmes Group, Inc., claiming that petitioner's sale of fans and heaters with a spiral grill design infringed respondent's patent and the same trade dress held unprotectible in Vornado I. Several weeks later, petitioner filed this action against respondent in the United States District Court for the District of Kansas, seeking, inter alia, a declaratory judgment that its products did not infringe respondent's trade dress and an injunction restraining respondent from accusing it of trade-dress infringement in promotional materials. Respondent's answer asserted a compulsory counterclaim alleging patent infringement. </s> The District Court granted petitioner the declaratory judgment and injunction it sought. 93 F.Supp. 2d 114 (Kan. 2000). The court explained that the collateral estoppel effect of Vornado I precluded respondent from relitigating its claim of trade-dress rights in the spiral grill design. It rejected respondent's contention that an intervening Federal Circuit case, Midwest Industries, Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (1999), which disagreed with the Tenth Circuit's reasoning in Vornado I, constituted a change in the law of trade dress that warranted relitigation of respondent's trade-dress claim. The court also stayed all proceedings related to respondent's counterclaim, adding that the counterclaim would be dismissed if the declaratory judgment and injunction entered in favor of petitioner were affirmed on appeal. </s> Respondent appealed to the Court of Appeals for the Federal Circuit. Notwithstanding petitioner's challenge to its jurisdiction, the Federal Circuit vacated the District Court's judgment, 13 Fed. Appx. 961 (2001), and remanded for consideration of whether the "change in the law" exception to collateral estoppel applied in light of TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), a case decided after the District Court's judgment which resolved a circuit split involving Vornado I and Midwest Industries. We granted certiorari to consider whether the Federal Circuit properly asserted jurisdiction over the appeal. 534 U.S. 1016 (2001). </s> II </s> Congress vested the Federal Circuit with exclusive jurisdiction over "an appeal from a final decision of a district court of the United States ... if the jurisdiction of that court was based, in whole or in part, on [28 U.S.C. §] 1338 ...." 28 U.S.C. §1295(a)(1) (emphasis added). Section 1338(a), in turn, provides in relevant part that "[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents ...." Thus, the Federal Circuit's jurisdiction is fixed with reference to that of the district court, and turns on whether the action arises under federal patent law.1 </s> Section 1338(a) uses the same operative language as 28 U.S.C. §1331, the statute conferring general federal-question jurisdiction, which gives the district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." (Emphasis added.) We said in Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 808 (1988), that "[l]inguistic consistency" requires us to apply the same test to determine whether a case arises under §1338(a) as under §1331. </s> The well-pleaded-complaint rule has long governed whether a case "arises under" federal law for purposes of §1331.2 See, e.g., Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 127-128 (1974) (per curiam). As "appropriately adapted to §1338(a)," the well-pleaded-complaint rule provides that whether a case "arises under" patent law "must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration ...." Christianson, 486 U.S., at 809 (internal quotation marks omitted). The plaintiff's well pleaded complaint must "establis[h] either that federal patent law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law ...." Ibid. Here, it is undisputed that petitioner's well pleaded complaint did not assert any claim arising under federal patent law. The Federal Circuit therefore erred in asserting jurisdiction over this appeal. </s> A </s> Respondent argues that the well-pleaded-complaint rule, properly understood, allows a counterclaim to serve as the basis for a district court's "arising under" jurisdiction. We disagree. </s> Admittedly, our prior cases have only required us to address whether a federal defense, rather than a federal counterclaim, can establish "arising under" jurisdiction. Nevertheless, those cases were decided on the principle that federal jurisdiction generally exists "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (emphasis added). As we said in The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913), whether a case arises under federal patent law "cannot depend upon the answer." Moreover, we have declined to adopt proposals that "the answer as well as the complaint ... be consulted before a determination [is] made whether the case `ar[ises] under' federal law ...." Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10-11, n.9 (1983) (citing American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts §1312, pp.188-194 (1969)). It follows that a counterclaim--which appears as part of the defendant's answer, not as part of the plaintiff's complaint--cannot serve as the basis for "arising under" jurisdiction. See, e.g., Inre Adams, 809 F.2d 1187, 1188, n.1 (CA5 1987); FDIC v. Elefant, 790 F.2d 661, 667 (CA7 1986); Takeda v. Northwestern National Life Ins. Co., 765 F.2d 815, 822 (CA9 1985); 14B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3722, pp.402-414 (3d ed. 1998). </s> Allowing a counterclaim to establish "arising under" jurisdiction would also contravene the longstanding policies underlying our precedents. First, since the plaintiff is "the master of the complaint," the well-pleaded-complaint rule enables him, "by eschewing claims based on federal law, ... to have the cause heard in state court." Caterpillar Inc., supra, at 398-399. The rule proposed by respondent, in contrast, would leave acceptance or rejection of a state forum to the master of the counterclaim. It would allow a defendant to remove a case brought in state court under state law, thereby defeating a plaintiff's choice of forum, simply by raising a federal counterclaim. Second, conferring this power upon the defendant would radically expand the class of removable cases, contrary to the "[d]ue regard for the rightful independence of state governments" that our cases addressing removal require. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941) (internal quotation marks omitted). And finally, allowing responsive pleadings by the defendant to establish "arising under" jurisdiction would undermine the clarity and ease of administration of the well-pleaded-complaint doctrine, which serves as a "quick rule of thumb" for resolving jurisdictional conflicts. See Franchise Tax Bd., supra, at11. </s> For these reasons, we decline to transform thelongstanding well-pleaded-complaint rule into the"well-pleaded-complaint-or-counterclaim rule" urged by respondent. </s> B </s> Respondent argues, in the alternative, that even if a counterclaim generally cannot establish the original "arising under" jurisdiction of a district court, we should interpret the phrase "arising under" differently in ascertaining the Federal Circuit's jurisdiction. In respondent's view, effectuating Congress's goal of "promoting the uniformity of patent law," Brief for Respondent 21, requires us to interpret §§1295(a)(1) and 1338(a) to confer exclusive appellate jurisdiction on the Federal Circuit whenever a patent-law counterclaim is raised.3 </s> We do not think this option is available. Our task here is not to determine what would further Congress's goal of ensuring patent-law uniformity, but to determine what the words of the statute must fairly be understood to mean. It would be difficult enough to give "arising under" the meaning urged by respondent if that phrase appeared in §1295(a)(1)--the jurisdiction-conferring statute--itself. Cf. Economic Stabilization Act of 1970, §211(b)(2), 85 Stat. 749 (providing the Temporary Emergency Court of Appeals with exclusive jurisdiction over appeals "in cases and controversies arising under this title"). Even then the phrase would not be some neologism that might justify our adverting to the general purpose of the legislation, but rather a term familiar to all law students as invoking the well-pleaded-complaint rule. Cf. Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F.2d 179, 183 (CA2 1979) ("The use of the phrase `cases and controversies arising under' ... is strong evidence that Congress intended to borrow the body of decisional law that has developed under 28 U.S.C. §1331 and other grants of jurisdiction to the district courts over cases `arising under' various regulatory statutes"). But the present case is even weaker than that, since §1295(a)(1) does not itself use the term, but rather refers to jurisdiction under §1338, where it is well established that "arising under any Act of Congress relating to patents" invokes, specifically, the well-pleaded-complaint rule. It would be an unprecedented feat of interpretive necromancy to say that §1338(a)'s "arising under" language means one thing (the well-pleaded-complaint rule) in its own right, but something quite different (respondent's complaint-or-counterclaim rule) when referred to by §1295(a)(1).4 </s> * * * </s> Not all cases involving a patent-law claim fall within the Federal Circuit's jurisdiction. By limiting the Federal Circuit's jurisdiction to cases in which district courts would have jurisdiction under §1338, Congress referred to a well-established body of law that requires courts to consider whether a patent-law claim appears on the face of the plaintiff's well pleaded complaint. Because petitioner's complaint did not include any claim based on patent law, we vacate the judgment of the Federal Circuit and remand the case with instructions to transfer the case to the Court of Appeals for the Tenth Circuit. See 28 U.S.C. §1631. </s> It is so ordered. </s> THE HOLMES GROUP, INC., PETITIONER v. VORNADO AIR CIRCULATION SYSTEMS, INC. </s> on writ of certiorari to the united states court of appeals for the federal circuit </s> [June 3, 2002] </s> Justice Stevens, concurring in part and concurring in the judgment. </s> The Court correctly holds that the exclusive jurisdiction of the Court of Appeals for the Federal Circuit in patent cases is "fixed with reference to that of the district court," ante, at 3. It is important to note the general rule, however, that the jurisdiction of the court of appeals is not "fixed" until the notice of appeal is filed. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59 (1982) (per curiam) ("The filing of a notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court ofits control over those aspects of the case involved in the appeal"). </s> Thus, if a case began as an antitrust case, but an amendment to the complaint added a patent claim that was pending or was decided when the appeal is taken, the jurisdiction of the district court would have been based "in part" on 28 U.S.C. §1338(a), and therefore §1295(a)(1) would grant the Federal Circuit jurisdiction over the appeal. Conversely, if the only patent count in a multi-count complaint was voluntarily dismissed in advance of trial, it would seem equally clear that the appeal should be taken to the appropriate regional court of appeals rather than to the Federal Circuit. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 823-824 (1988) (Stevens, J., concurring). Any other approach "would enable an unscrupulous plaintiff to manipulate appellate court jurisdiction by the timing of the amendments to its complaint." Id., at 824. To the extent that the Court's opinion might be read as endorsing a contrary result by reason of its reliance on cases involving the removal jurisdiction of the district court, I do not agree with it. </s> I also do not agree with the Court's statement that an interpretation of the "in whole or in part" language of §1295(a)(1) to encompass patent claims alleged in a compulsory counterclaim providing an independent basis for the district court's jurisdiction would be a "neologism" that would involve "an unprecedented feat of interpretive necromancy," ante, at 7. For there is well-reasoned precedent supporting precisely that conclusion. See Aerojet-General Corp. v. Machine Tool Works, Oerlikon-Buehrle Ltd., 895 F.2d 736, 742-743 (CA Fed. 1990) (en banc) (opinion of Markey, C.J., for a unanimous court) (citing, e.g., Rengo Co. v. Molins Machine Co., 657 F.2d 535, 539 (CA3 1981); Dale Electronics, Inc. v. R.C. L. Electronics, Inc., 488 F.2d 382, 390 (CA1 1973); Pioche Mines Consol., Inc. v. Fidelity-Philadelphia Trust Co., 206 F.2d 336, 336-337 (CA9 1953); Lion Mfg. Corp. v. Chicago Flexible Shaft Co., 106 F.2d 930, 933 (CA7 1939)).1 I am nevertheless persuaded that a correct interpretation of §1295(a)(1) limits the Federal Circuit's exclusive jurisdiction to those cases in which the patent claim is alleged in either the original complaint or an amended pleading filed by the plaintiff. In my judgment, each of the three policies that the Court has identified as supporting the "well-pleaded-complaint" rule governing district court jurisdiction, ante, at 5-6, points in the same direction with respect to appellate jurisdiction. </s> First, the interest in preserving the plaintiff's choice of forum includes not only the court that will conduct the trial but the appellate court as well. A plaintiff who has a legitimate interest in litigating in a circuit whose precedents support its theory of the case might omit a patent claim in order to avoid review in the Federal Circuit. In some cases that interest would be defeated by a rule that allowed a patent counterclaim to determine the appellate forum. </s> Second, although I doubt that a rule that enabled the counterclaimant to be the occasional master of the appellate forum "would radically expand" the number of cases heard by the Federal Circuit, ante, at 5, we must recognize that the exclusive jurisdiction of the Federal Circuit defined in §1295(a)(1) does not comprise claims arising under the trademark and copyright laws, which are included in the district court's grant of jurisdiction under §1338(a).2 As the instant litigation demonstrates, claims sounding in these other areas of intellectual property law are not infrequently bound up with patent counterclaims. The potential number of cases in which a counterclaim might direct to the Federal Circuit appeals that Congress specifically chose not to place within its exclusive jurisdiction is therefore significant. </s> Third, the interest in maintaining clarity and simplicity in rules governing appellate jurisdiction will be served by limiting the number of pleadings that will mandate review in the Federal Circuit. In his opinion in Aerojet, Chief Judge Markey merely held that a counterclaim for patent infringement that was "compulsory" and not "frivolous" or "insubstantial" sufficed to establish jurisdiction; he made a point of noting that there was no assertion in the case that the patent counterclaim at issue had been filed "to manipulate the jurisdiction of [the Federal Circuit]." 895 F.2d, at 738. The text of the statute, however, would not seem to distinguish between that counterclaim and those that are permissive, insubstantial, or manipulative, and there is very good reason not to make the choice of appellate forum turn on such distinctions. Requiring assessment of a defendant's motive in raising a patent counterclaim or the counterclaim's relative strength wastes judicial resources by inviting "unhappy interactions between jurisdiction and the merits." Kennedy v. Wright, 851 F.2d 963, 968 (CA7 1988). </s> There is, of course, a countervailing interest in directing appeals in patent cases to the specialized court that was created, in part, to promote uniformity in the development of this area of the law. But we have already decided that the Federal Circuit does not have exclusive jurisdiction over all cases raising patent issues.3 Christianson, 486 U.S., at 811-812. Necessarily, therefore, other circuits will have some role to play in the development of this area of the law. An occasional conflict in decisions may be useful in identifying questions that merit this Court's attention. Moreover, occasional decisions by courts with broader jurisdiction will provide an antidote to the risk that the specialized court may develop an institutional bias.4 </s> In sum, I concur in the Court's judgment and join Parts I and II-A of its opinion. </s> THE HOLMES GROUP, INC., PETITIONER v. VORNADO AIR CIRCULATION SYSTEMS, INC. </s> on writ of certiorari to the united states court of appeals for the federal circuit </s> [June 3, 2002] </s> Justice Ginsburg, with whom Justice O'Connor joins, concurring in the judgment. </s> For reasons stated by Chief Judge Markey, writing for a unanimous en banc Federal Circuit in Aerojet-General Corp. v. Machine Tool Works, Oerlikon-Buehrle Ltd., 895 F.2d 736 (1990), I conclude that, when the claim stated in a compulsory counterclaim "aris[es] under" federal patent law and is adjudicated on the merits by a federal district court, the Federal Circuit has exclusive appellate jurisdiction over that adjudication and other determinations made in the same case. See id., at 741-744 (distinguishing Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988), in which this Court affirmed the jurisdictional decision of the Federal Circuit; in discussing the "well-pleaded complaint rule," the Federal Circuit observed that a patent infringement counterclaim, unlike a patent issue raised only as a defense, has as its own, independent jurisdictional base 28 U.S.C. §1338, i.e., such a claim discretely "arises under the patent laws"). </s> The question now before this Court bears not at all on a plaintiff's choice of trial forum. The sole question presented here concerns Congress' allocation of adjudicatory authority among the federal courts of appeals. At that appellate level, Congress sought to eliminate forum shopping and to advance uniformity in the interpretation and application of federal patent law. See generally R. Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N. Y. U. L.Rev. 1, 30-37 (1989). </s> The Court's opinion dwells on district court authority. See ante, at 4-6. But, all agree, Congress left that authority entirely untouched. I would attend, instead, to the unique context at issue, and give effect to Congress' endeavor to grant the Federal Circuit exclusive appellate jurisdiction at least over district court adjudications of patent claims. See R. Dreyfuss, 64 N. Y. U. L.Rev., at 36. </s> In the instant case, however, no patent claim was actually adjudicated. For that sole reason, I join the Court's judgment. </s> FOOTNOTES Footnote 1 </s> Like Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 814-815 (1988), this case does not call upon us to decide whether the Federal Circuit's jurisdiction is fixed with reference to the complaint as initially filed or whether an actual or constructive amendment to the complaint raising a patent-law claim can provide the foundation for the Federal Circuit's jurisdiction. </s> Footnote 2 </s> The well-pleaded-complaint rule also governs whether a case is removable from state to federal court pursuant to 28 U.S.C. §1441(a), which provides in relevant part: </s> "Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." </s> See Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1 (1983). </s> Footnote 3 </s> Echoing a variant of this argument, Justice Ginsburg contends that "giv[ing] effect" to Congress's intention "to eliminate forum shopping and to advance uniformity in ... patent law" requires that the Federal Circuit have exclusive jurisdiction whenever a patent claim was "actually adjudicated." Post, at 1-2 (opinion concurring in judgment). We rejected precisely this argument in Christianson, viz., the suggestion that the Federal Circuit's jurisdiction is "fixed `by reference to the case actually litigated.'" 486 U.S., at 813 (quoting Brief for Respondent in Christianson v. Colt Industries Operating Corp., O.T. 1987, No. 87-499, p.31). We held that the Federal Circuit's jurisdiction, like that of the district court, "is determined by reference to the well-pleaded complaint, not the well-tried case." 486 U.S., at 814. </s> Footnote 4 </s> Although Justice Stevens agrees that a correct interpretation of §1295(a)(1) does not allow a patent-law counterclaim to serve as the basis for the Federal Circuit's jurisdiction, he nevertheless quibbles that "there is well-reasoned precedent" supporting the contrary conclusion. See post, at 2-3 (opinion concurring in part and concurring in judgment). There is not. The cases relied upon by Justice Stevens and by the court in Aerojet-General Corp. v. Machine Tool Works, Oerlikon-Buehrle Ltd., 895 F.2d 736 (CA Fed. 1990), simply address whether a district court can retain jurisdiction over a counterclaim if the complaint (or a claim therein) is dismissed or if a jurisdictional defect in the complaint is identified. They do not even mention the well-pleaded-complaint rule that the statutory phrase "arising under" invokes. Nor do any of these cases interpret §1295(a)(1) or another statute conferring appellate jurisdiction with reference to the jurisdiction of the district court. Thus, the cases relied upon by Justice Stevens have no bearing on whether the phrase "arising under" can be interpreted differently in ascertaining the jurisdiction of the Federal Circuit than that of the district court. </s> FOOTNOTES Footnote 1 </s> The Court dismisses the cases cited in Aerojet, a unanimous opinion for an en banc Federal Circuit, as having "no bearing" on this case because they do not parse the term "arising under" or interpret 28 U.S.C. §1295(a)(1). Ante, at 7, n.4. But surely it is not a "quibbl[e]" to acknowledge them as supporting the Aerojet court's conclusion that the jurisdiction of the district court can be based on a patent counterclaim, thereby satisfying the "in whole or in part" requirement of §1295(a)(1). </s> In any event, the assertion that only the power of black magic could give "arising under" a different meaning with respect to appellate jurisdiction is belied by case law involving the Temporary Emergency Court of Appeals (TECA), which had exclusive jurisdiction over appeals in cases "arising under" the Economic Stabilization Act of 1970 (ESA), §211(b)(2), 85 Stat. 749. Most courts departed from the traditional understanding of "arising under" and interpreted the statute to grant TECA appellate jurisdiction over ESA issues, including those raised as a defense. Courts nevertheless interpreted the statute's identical language respecting the district courts to grant traditional "arising under" jurisdiction. See Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F.2d 179, 185-186 (CA2 1979) ("It must be candidly recognized that according TECA some form of `issue' jurisdiction places on the phrase, `cases and controversies arising under' . . . a construction that differs from the meaning associated with these words in other jurisdictional statutes, and differs even from the grant of jurisdiction to the district courts in [the ESA]"). Thus, although I am in agreement with the Court's ultimate decision not to determine appellate jurisdiction by reference to the defendant's patent counterclaim, I find it unnecessary and inappropriate to slight the contrary reasoning of the Court of Appeals. </s> Footnote 2 </s> The statute grants the Federal Circuit "exclusive jurisdiction . . . if the jurisdiction of [the district] court was based, in whole or in part, on [28 U.S.C.] section 1338 . . . , except that a case involving a claim arising under any Act of Congress relating to copyrights, exclusive rights in mask works, or trademarks and no other claims under section 1338(a) shall be governed" by provisions relating to appeals to the regional courts of appeals. 28 U.S.C. §1295(a)(1). </s> Footnote 3 </s> In explicit contrast with the TECA, see n.1, supra, the Federal Circuit was granted appellate jurisdiction over cases involving patent law claims, not issues. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 820-821, n.1 (1988) (Stevens, J., concurring) (quoting H.R. Rep. No. 97-312, p. 41 (1981)) ("Cases will be within the jurisdiction of the Court of Appeals for the Federal Circuit in the same sense that cases are said to `arise under' federal law for purposes of federal question jurisdiction. Contrast, Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F.2d 179 (2d Cir., 1979) [Temporary Emergency Court of Appeals properly has jurisdiction over issues, not claims, arising under the Economic Stabilization Act]" (internal quotation marks omitted)). </s> Considerations of convenience to the parties and the courts support Congress' decision to determine the Federal Circuit's appellate jurisdiction based on the claims alleged in the well-pleaded complaint rather than the issues resolved by the district court's judgment. If, for example, the district court's judgment rests on multiple grounds, directing the appeal is a relatively straightforward matter by reference to the complaint. As Judge Easterbrook explains in Kennedy v. Wright, 851 F.2d 963 (CA7 1988), fixing appellate jurisdiction with respect to the complaint also ensures that a case that has been appealed and remanded will return to the same appellate court if there is a subsequent appeal. Id., at 968 (describing the risk of "a game of jurisdictional ping-pong" if subsequent appeals are directed based on the grounds for decision rather than the pleadings). </s> Footnote 4 </s> See Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y. U. L.Rev. 1, 25-30, 54 (1989) (evaluating criticism that the Federal Circuit demonstrates a greater pro-patent bias than regional circuits).

United States Supreme Court CIPRIANO v. CITY OF HOUMA(1969) No. 705 Argued: April 24, 1969Decided: June 16, 1969 </s> Louisiana law provides that only "property taxpayers" have the right to vote in elections called to approve the issuance of revenue bonds by a municipal utility system. At a special election a majority of the property taxpayers approved a bond issue for the City of Houma's municipally owned utility systems. Within the period permitted to contest the election result appellant, a nonproperty taxpayer otherwise qualified to vote, brought suit for himself and others similarly situated to enjoin the issuance of the bonds and to obtain a declaratory judgment that the limitation of the franchise to property taxpayers is unconstitutional. A three-judge District Court held the limitation constitutional. Held: </s> 1. The "property taxpayer" limitation on the franchise violates the Equal Protection Clause of the Fourteenth Amendment. Kramer v. Union Free School District No. 15, ante, p. 621. </s> (a) Where the State grants the right to vote in a limited purpose election to some qualified voters and denies it to others, "the Court must determine whether the exclusions are necessary to promote a compelling state interest." Kramer, supra, at 627. </s> (b) Here the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike, and the classification thus unconstitutionally excludes otherwise qualified voters who are as substantially affected and directly interested in the matter voted on as those who are permitted to vote. </s> 2. This decision will have prospective effect, and will apply only where the time for challenging the election result has not expired, or in cases brought within the time specified for challenging the election and which are not yet final. </s> 286 F. Supp. 823, reversed and remanded. </s> Kenneth Watkins argued the cause and filed briefs for appellant. [395 U.S. 701, 702] </s> Eugene E. Huppenbauer, Jr., argued the cause for appellees. With him on the brief was Ted J. Borowski. </s> Briefs of amici curiae were filed by Jack P. F. Gremillion, Attorney General, and John V. Parker for the State of Louisiana et al., and by Irving A. Jennings, J. A. Riggins, Jr., and Rex E. Lee for the Salt River Project Agricultural Improvement & Power District. </s> PER CURIAM. </s> In this case we must determine whether provisions of Louisiana law which give only "property taxpayers" the right to vote in elections called to approve the issuance of revenue bonds by a municipal utility are constitutional. This case thus presents an issue similar to the one considered in Kramer v. Union Free School District No. 15, ante, p. 621. With one judge dissenting, a three-judge District Court determined that the Louisiana provisions were constitutional. However, as in Kramer, we find that the challenged provisions violate the Equal Protection Clause of the Fourteenth Amendment; we therefore reverse. </s> The Louisiana Constitution provides that the legislature may authorize municipalities to issue bonds "[f]or the purpose of constructing, acquiring, extending or improving any revenue-producing public utility." La. Const., Art. 14, 14 (m). Pursuant to this provision, the legislature enacted legislation authorizing Louisiana municipalities to issue revenue bonds. La. Rev. Stat. 33:4251 (1950). 1 The legislature further provided, however, that the municipalities could issue the bonds [395 U.S. 701, 703] only if they were approved by a "majority in number and amount of the property taxpayers qualified to vote . . . [who vote at the bond election]." 2 La. Rev. Stat. 39:501 (1950). See also La. Rev. Stat. 33:4258, 39:508 (1950). </s> Appellee City of Houma owns and operates gas, water, and electric utility systems. In September 1967 the city officials scheduled a special election to obtain voter approval for the issuance of $10,000,000 of utility revenue bonds. The city planned to finance extension and improvement of the municipally owned utility systems with the bond proceeds. At the special election a majority "in number and amount" of the property taxpayers approved the bond issue. However, within the period provided by Louisiana law for contesting the result of the election, La. Rev. Stat. 33:4260 (1950), this suit was instituted in the United States District Court for the Eastern District of Louisiana. </s> Appellant alleged that he was a duly qualified voter 3 of the City of Houma, and that he had been prevented from voting in the revenue bond election solely because he was not a property owner. He sued for himself and for a class of 6,926 nonproperty taxpayers otherwise qualified as City of Houma voters. Appellant sought to enjoin the issuance of the bonds approved at the special election and to obtain a declaratory judgment that the limitation of the franchise to property taxpayers is unconstitutional. A three-judge District Court was convened pursuant to 28 U.S.C. 2281, 2284. The [395 U.S. 701, 704] court then dismissed the suit, finding the Louisiana provisions constitutional. Cipriano v. City of Houma, 286 F. Supp. 823 (D.C. E. D. La. 1968). Appellant brought a direct appeal to this Court, 28 U.S.C. 1253; we noted probable jurisdiction. 393 U.S. 1061 (1969). </s> As we noted in Kramer, supra, if a challenged state statute grants the right to vote in a limited purpose election to some otherwise qualified voters and denies it to others, 4 "the Court must determine whether the exclusions are necessary to promote a compelling state interest." Kramer v. Union Free School District No. 15, supra, at 627. Moreover, no less showing that the exclusions are necessary to promote a compelling state interest is required merely because "the questions scheduled for the election need not have been submitted to the voters." Id., at 629, n. 11. </s> The appellees maintain that property owners have a "special pecuniary interest" in the election, because the efficiency of the utility system directly affects "property and property values" and thus "the basic security of their investment in [their] property [is] at stake." Assuming, arguendo, 5 that a State might, in some circumstances, constitutionally limit the franchise to qualified voters who are also "specially interested" in the election, whether the statute allegedly so limiting the franchise denies equal protection of the laws to those otherwise qualified voters who are excluded depends on "whether all those excluded are in fact substantially less interested or affected than those the statute includes." Id., at 632. [395 U.S. 701, 705] </s> At the time of the election, only about 40% of the city's registered voters were property taxpayers. Of course, the operation of the utility systems - gas, water, and electric - affects virtually every resident of the city, nonproperty owners as well as property owners. All users pay utility bills, and the rates may be affected substantially by the amount of revenue bonds outstanding. 6 Certainly property owners are not alone in feeling the impact of bad utility service or high rates, or in reaping the benefits of good service and low rates. </s> The revenue bonds are to be paid only from the operations of the utilities; they are not financed in any way by property tax revenue. Property owners, like nonproperty owners, use the utilities and pay the rates; however, the impact of the revenue bond issue on them is unconnected to their status as property taxpayers. Indeed, the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike. </s> Moreover, the profits of the utility systems' operations are paid into the general fund of the city and are used to finance city services that otherwise would be supported by taxes. Of course, property taxpayers may be concerned with expanding and improving the city's utility operations; such improvements could produce revenues which eventually would reduce the burden on the property tax to support city services. On the other hand, nonproperty taxpayers may feel that their interests as rate payers indicate that no further expansion of utility debt obligations should be made. Of course, these differences of opinion cannot justify excluding either group from the bond election, when, as in this case, both are substantially affected by the utility operations. [395 U.S. 701, 706] For, as we noted in Carrington v. Rash, 380 U.S. 89, 94 (1965), "`[f]encing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." </s> The challenged statute contains a classification which excludes otherwise qualified voters who are as substantially affected and directly interested in the matter voted upon as are those who are permitted to vote. When, as in this case, the State's sole justification for the statute is that the classification provides a "rational basis" for limiting the franchise to those voters with a "special interest," the statute clearly does not meet the "exacting standard of precision we require of statutes which selectively distribute the franchise." Kramer v. Union Free School District No. 15, supra, at 632. We therefore reverse the judgment of the District Court. </s> Significant hardships would be imposed on cities, bondholders, and others connected with municipal utilities if our decision today were given full retroactive effect. Where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship" by a holding of nonretroactivity. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932). See Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940). Cf. Linkletter v. Walker, 381 U.S. 618 (1965). Therefore, we will apply our decision in this case prospectively. That is, we will apply it only where, under state law, the time for challenging the election result has not expired, or in cases brought within the time specified by state law for challenging the election and which are not yet final. Thus, the decision will not apply where the authorization to issue the securities is legally complete on the date of this decision. Of course, our decision will not affect the validity of securities which have been sold or issued prior to this decision and pursuant to such final authorization. [395 U.S. 701, 707] </s> The judgment of the District Court is reversed. The case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> MR. JUSTICE BLACK and MR. JUSTICE STEWART concur in the judgment of the Court. Unlike Kramer v. Union Free School District No. 15, ante, p. 621, this case involves a voting classification "wholly irrelevant to achievement" of the State's objective. Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556 . </s> MR. JUSTICE HARLAN, while adhering to his views expressed in dissent in Reynolds v. Sims, 377 U.S. 533, 589 (1964); Harper v. Virginia Board of Elections, 383 U.S. 663, 680 (1966); and Avery v. Midland County, 390 U.S. 474, 486 (1968), but considering himself bound by the Court's decisions in those cases, concurs in the result. </s> Footnotes [Footnote 1 The amount of debt a municipality may incur is limited by the Louisiana Constitution. La. Const., Art. 14, 14 (f). These revenue bonds are not included in computing the municipal debt, however, if they are secured exclusively by a mortgage on the assets of the utility system and a pledge of the system revenues. La. Const., Art. 14, 14 (m). </s> [Footnote 2 We were informed at oral argument that "number and amount" means the bonds must be approved by a majority of the property taxpayers voting and their votes must also represent a "majority of the assessed property owned by those taxpayers who are actually voting." </s> [Footnote 3 The qualifications are of age, residence, and registration. See La. Rev. Stat. 39:508 (1950). </s> [Footnote 4 Appellant does not challenge any other voter qualification regulations. The sole issue in this case is the constitutionality of the provisions of Louisiana law permitting only property taxpayers to vote in utility bond elections. </s> [Footnote 5 As in Kramer v. Union Free School District No. 15, supra, we find it unnecessary to decide whether a State might, in some circumstances, limit the franchise to those "primarily interested." </s> [Footnote 6 For example, a proposed decrease in utility rates may be forestalled by the issuance of new revenue bonds. </s> [395 U.S. 701, 708]

United States Supreme Court JOSEPH ONCALE v. SUNDOWNER OFFSHORE SERVICES, INCORPORATED, et al.(1998) No. 96-568 Argued: December 3, 1997Decided: March 4, 1998 </s> </s> Petitioner Oncale filed a complaint against his employer, respondent Sundowner Offshore Services, Inc., claiming that sexual harassment directed against him by respondent coworkers in their workplace constituted "discriminat[ion] . . . because of . . . sex" prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). Relying on Fifth Circuit precedent, the District Court held that Oncale, a male, had no Title VII cause of action for harassment by male coworkers. The Fifth Circuit affirmed. </s> Held: Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. Title VII's prohibition of discrimination "because of . . . sex" protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669, 682 , and in the related context of racial discrimination in the workplace this Court has rejected any conclusive presumption that an employer will not discriminate against members of his own race, Castaneda v. Partida , 430 U.S. 482, 499 . There is no justification in Title VII's language or the Court's precedents for a categorical rule barring a claim of discrimination "because of . . . sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Recognizing liability for same-sex harassment will not transform Title VII into a general civility code for the American workplace, since Title VII is directed at discrimination because of sex, not merely conduct tinged with offensive sexual connotations; since the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same, and the opposite, sex; and since the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. Pp. 2-7. </s> 83 F. 3d 118, reversed and remanded. </s> SCALIA , J., delivered the opinion for a unanimous Court. THOMAS , J., filed a concurring opinion. </s> NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. </s> U.S. Supreme Court </s> No. 96-568 </s> JOSEPH ONCALE, PETITIONER v. SUNDOWNER OFFSHORE SERVICES, INCORPORATED, ET </s> AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [March 4, 1998] </s> JUSTICE SCALIA delivered the opinion of the Court. </s> This case presents the question whether workplace harassment can violate Title VII's prohibition against "discriminat[ion] . . . because of . . . sex," 42 U.S.C. § 2000e2(a)(1), when the harasser and the harassed employee are of the same sex. </s> I </s> The District Court having granted summary judgment for respondent, we must assume the facts to be as alleged by petitioner Joseph Oncale. The precise details are irrelevant to the legal point we must decide, and in the interest of both brevity and dignity we shall describe them only generally. In late October 1991, Oncale was working for respondent Sundowner Offshore Services on a Chevron U. S. A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority, App. 41, 77, 43. On several occasions, Oncale was forcibly subjected to sex related, humiliating actions against him by Lyons, Pippen and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assulted Oncale in a sexual manner, and Lyons threatened him with rape. </s> Oncale's complaints to supervisory personnel produced no remedial action; in fact, the company's Safety Compliance Clerk, Valent Hohen, told Oncale that Lyons and Pippen "picked [on] him all the time too," and called him a name suggesting homosexuality. Id., at 77. Oncale eventually quit-asking that his pink slip reflect that he "voluntarily left due to sexual harassment and verbal abuse." Id., at 79. When asked at his deposition why he left Sundowner, Oncale stated "I felt that if I didn't leave my job, that I would be raped or forced to have sex." Id., at 71. </s> Oncale filed a complaint against Sundowner in the United States District Court for the Eastern District of Louisiana, alleging that he was discriminated against in his employment because of his sex. Relying on the Fifth Circuit's decision in Garcia v. Elf Atochem North America , 28 F. 3d 446, 451-452 (CA5 1994), the district court held that "Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers." App. 106. On appeal, a panel of the Fifth Circuit concluded that Garcia was binding Circuit precedent, and affirmed. 83 F. 3d 118 (1996). We granted certiorari. 520 U. S. ___ (1997). </s> II </s> Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, as amended, 42 U.S.C. § 2000e-2(a)(1). We have held that this not only covers "terms" and "condi tions" in the narrow contractual sense, but "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57, 64 (1986) (citations and internal quotation marks omitted). "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted). </s> Title VII's prohibition of discrimination "because of . . . sex" protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669, 682 (1983), and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. "Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group." Castaneda v. Partida , 430 U.S. 482, 499 (1977). See also id. , at 515-516 n. 6 (Powell, J., joined by Burger, C. J., and REHNQUIST , J., dissenting). In Johnson v. Transportation Agency, Santa Clara Cty. , 480 U.S. 616 (1987), a male employee claimed that his employer discriminated against him because of his sex when it preferred a female employee for promotion. Although we ultimately rejected the claim on other grounds, we did not consider it significant that the supervisor who made that decision was also a man. See id., at 624-625. If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination "because of . . . sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Courts have had little trouble with that principle in cases like Johnson , where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a "hostile environment" sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. Some, like the Fifth Circuit in this case, have held that same-sex sexual harassment claims are never cognizable under Title VII. See also, e.g., Goluszek v. H. P. Smith , 697 F. Supp. 1452 (ND Ill. 1988). Other decisions say that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Compare McWilliams v. Fairfax County Board of Supervisors , 72 F. 3d 1191 (CA4 1996), with Wrightson v. Pizza Hut of America , 99 F. 3d 138 (CA4 1996). Still others suggest that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations. See Doe v. Belleville , 119 F. 3d 563 (CA7 1997). </s> We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits "discriminat[ion] . . . because of . . . sex" in the "terms" or "conditions" of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. </s> Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for oppositesex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at " discriminat[ion] . . . because of . . . sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris, supra , at 25 (GINSBURG , J., concurring). </s> Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging samesex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted " discrimina[tion] . . . because of . . . sex." </s> And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized in Meritor and Harris , the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview." Harris , 510 U.S., at 21 , citing Meritor , 477 U. S. at 67. We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace-such as male-on-male horseplay or intersexual flirtation-for discriminatory "conditions of employment." </s> We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." Harris, supra, at 23. In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relation ships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. </s> III </s> Because we conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> U.S. Supreme Court </s> No. 96-568 </s> JOSEPH ONCALE, PETITIONER v. SUNDOWNER OFFSHORE SERVICES, INCORPORATED, ET </s> AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [March 4, 1998] </s> JUSTICE THOMAS , concurring. </s> I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII's statutory requirement that there be discrimination "because of . . . sex."

United States Supreme Court HUDGENS v. NLRB(1976) No. 74-773 Argued: October 14, 1975Decided: March 3, 1976 </s> When striking members of respondent union picketed in front of their employer's leased store located in petitioner's shopping center, the shopping center's general manager threatened them with arrest for criminal trespass if they did not depart, and they left. The union then filed unfair labor practice charges against petitioner, alleging that the threat constituted interference with rights protected by 7 of the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB), concluding that the NLRA had been violated, issued a cease-and-desist order against petitioner, and the Court of Appeals enforced the order. Petitioner and respondent union contend that the respective rights and liabilities of the parties are to be decided under the criteria of the NLRA alone, whereas the NLRB contends that such rights and liabilities must be measured under a First Amendment standard. Held: </s> 1. Under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this, and the pickets here did not have a First Amendment right to enter the shopping center for the purpose of advertising their strike against their employer. Lloyd Corp. v. Tanner, 407 U.S. 551 . Pp. 512-521. </s> 2. The rights and liabilities of the parties are dependent exclusively upon the NLRA, under which it is the NLRB's task, subject to judicial review, to resolve conflicts between 7 rights and private property rights and to seek accommodation of such rights "with as little destruction of one as is consistent with the maintenance of the other," NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 . Hence, the case is remanded so that the NLRB may reconsider the case under the NLRA's statutory criteria alone. Pp. 521-523. </s> 501 F.2d 161, vacated and remanded. </s> STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. [424 U.S. 507, 508] POWELL, J., filed a concurring opinion, in which BURGER, C. J., joined, post, p. 523. WHITE, J., filed an opinion concurring in the result, post, p. 524. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 525. STEVENS, J., took no part in the consideration or decision of the case. </s> Lawrence M. Cohen argued the cause for petitioner. With him on the brief were Steven R. Semler and Dow N. Kirkpatrick, II. </s> Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Bork, William L. Patton, Peter G. Nash, John S. Irving, Patrick Hardin, and Robert A. Giannasi. Laurence Gold argued the cause for respondent Local 315, Retail & Wholesale Department Store Union, AFL-CIO. With him on the brief were Morgan Stanford and J. Albert Woll. * </s> [Footnote * Milton A. Smith, Richard B. Berman, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal. </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U.S.C. 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F.2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U.S. 971 . [424 U.S. 507, 509] </s> I </s> The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler's, can be entered only from the interior mall. </s> In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company's failure to agree to demands made by their union in contract negotiations. 1 The strikers decided to picket not only Butler's warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed. </s> The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by 7 of the Act, [424 U.S. 507, 510] 29 U.S.C. 157. 2 Relying on this Court's decision in Food Employees v. Logan Valley Plaza, 391 U.S. 308 , the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated 8 (a) (1) of the Act, 29 U.S.C. 158 (a) (1). 3 Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U.S. 551 , and Central Hardware Co. v. NLRB, 407 U.S. 539 , and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions. </s> The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. [424 U.S. 507, 511] This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 , a case which held that union organizers who seek to solicit for union membership may intrude on an employer's private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge's opinion also relied on this Court's constitutional decision in Logan Valley for a "realistic view of the facts." The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens' invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store. 4 </s> Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U.S. 793 , a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board's cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets' rights was 7 of the Act, the Court of Appeals held that the competing constitutional and property right considerations discussed in Lloyd Corp. v. Tanner, supra, "burde[n] the General Counsel with the duty to [424 U.S. 507, 512] prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective," 501 F.2d, at 169, and that the Board's General Counsel had met that burden in this case. </s> In this Court the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals' judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board's asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard. </s> II </s> As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn. [424 U.S. 507, 513] </s> It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94 . Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself. </s> This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U.S. 501 . In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court's opinion as follows: </s> "Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a `business block' on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly [424 U.S. 507, 514] settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation." Id., at 502-503. </s> The Court pointed out that if the "title" to Chickasaw had "belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed." Id., at 504. Concluding that Gulf's "property interests" should not be allowed to lead to a different result in Chickasaw, which did "not function differently from any other town," id., at 506-508, the Court invoked the First and Fourteenth Amendments to reverse the appellant's conviction. </s> It was the Marsh case that in 1968 provided the foundation for the Court's decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 . That case involved peaceful picketing within a large [424 U.S. 507, 515] shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center's property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment. </s> The Court's opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk: </s> "It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. Griffin, 303 U.S. 444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Schneider v. State, 308 U.S. 147 (1939); Jamison v. Texas, 318 U.S. 413 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely." 391 U.S., at 315 . </s> The Court's opinion then reviewed the Marsh case in detail, emphasized the similarities between the business [424 U.S. 507, 516] block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded: </s> "The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh." 391 U.S., at 318 . </s> Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court. </s> There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court's opinion in Marsh, Mr. Justice Black. His disagreement with the Court's reasoning was total: </s> "In affirming petitioners' contentions the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. . . . I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a `town.'" 391 U.S., at 330 -331 (footnote omitted). </s> "The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., `residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated.' 326 U.S., at 502 . I [424 U.S. 507, 517] can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it." Id., at 332. </s> "To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country . . . ." Id., at 332-333. </s> Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U.S. 551 . That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, "to avoid arrest." Id., at 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled in their favor, holding that the distribution of handbills on the shopping center's property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F.2d 545, expressly relying on this Court's Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals. </s> The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court's opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan Valley had been [424 U.S. 507, 518] specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U.S., at 561 -567. 5 But the fact is that the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan Valley. </s> It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided. 6 Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court's decision in the Lloyd case. 7 Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U.S., at 562 -563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley: </s> "The basic issue in this case is whether respondents, in the exercise of asserted First Amendment [424 U.S. 507, 519] rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. . . ." 407 U.S., at 567 . </s> "Respondents contend . . . that the property of a large shopping center is `open to the public,' serves the same purposes as a `business district' of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town. </s> "The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power." Id., at 568-569 (footnote omitted). [424 U.S. 507, 520] </s> "We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . ." Id., at 570. </s> If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content. 8 For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U.S. 569 ; Poulos v. New Hampshire, 345 U.S. 395 , and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U.S. 39 ; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U.S. 205 . "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 . 9 It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment [424 U.S. 507, 521] right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co. </s> We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this. </s> III </s> From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between 7 rights and private property rights, "and to seek a proper accommodation between the two." Central Hardware Co. v. NLRB, 407 U.S., at 543 . What is "a proper accommodation" in any situation may largely depend upon the content and the context of the 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires "above all else" that expression must not be restricted by government "because of its message, its ideas, its subject matter, or its content." </s> In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U.S. 105 , the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees' 7 rights and employers' property rights, the Court said in Babcock & Wilcox, "must be obtained with as little destruction of one as is consistent with the maintenance of the other." 351 U.S., at 112 . </s> Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemployees on the employers' property. 10 The context of the 7 [424 U.S. 507, 522] activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steel-workers v. NLRB, 376 U.S. 492, 499 ; Bus Employees v. Missouri, 374 U.S. 74, 82 ; NLRB v. Erie Resistor Corp., 373 U.S. 221, 234 . Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U.S. 664, 668 -669. Second, the 7 activity here was carried on by Butler's employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra, at 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the 7 activity was directed, but of another. 11 </s> The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other." 12 The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra, at 112; cf. NLRB v. Erie Resistor Corp., supra, at 235-236; [424 U.S. 507, 523] NLRB v. Truckdrivers Union, 353 U.S. 87, 97 . "The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." NLRB v. Weingarten, Inc., 420 U.S. 251, 266 . </s> For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone. </s> It is so ordered. </s> MR. JUSTICE STEVENS took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 The Butler warehouse was not located within the North DeKalb Shopping Center. </s> [Footnote 2 Section 7, 29 U.S.C. 157, provides: </s> "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a) (3) of this title." </s> [Footnote 3 Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 192 N. L. R. B. 671. Section 8 (a) (1) makes it an unfair labor practice for "an employer" to "restrain, or coerce employees" in the exercise of their 7 rights. While Hudgens was not the employer of the employees involved in this case, it seems to be undisputed that he was an employer engaged in commerce within the meaning of 2 (6) and (7) of the Act, 29 U.S.C. 152 (6) and (7). The Board has held that a statutory "employer" may violate 8 (a) (1) with respect to employees other than his own. See Austin Co., 101 N. L. R. B. 1257, 1258-1259. See also 2 (13) of the Act, 29 U.S.C. 152 (13). </s> [Footnote 4 Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 205 N. L. R. B. 628. </s> [Footnote 5 Insofar as the two shopping centers differed as such, the one in Lloyd more closely resembled the business section in Chickasaw, Ala.: </s> "The principal differences between the two centers are that the Lloyd Center is larger than Logan Valley, that Lloyd Center contains more commercial facilities, that Lloyd Center contains a range of professional and nonprofessional services that were not found in Logan Valley, and that Lloyd Center is much more intertwined with public streets than Logan Valley. Also, as in Marsh, supra, Lloyd's private police are given full police power by the city of Portland, even though they are hired, fired, controlled, and paid by the owners of the Center. This was not true in Logan Valley." 407 U.S., at 575 (MARSHALL, J., dissenting). </s> [Footnote 6 See id., at 570 (MARSHALL, J., dissenting). </s> [Footnote 7 This was the entire thrust of MR. JUSTICE MARSHALL'S dissenting opinion in the Lloyd case. See id., at 584. </s> [Footnote 8 MR. JUSTICE WHITE clearly recognized this principle in his Logan Valley dissenting opinion. 391 U.S., at 339 . </s> [Footnote 9 The Court has in the past held that some expression is not protected "speech" within the meaning of the First Amendment. Roth v. United States, 354 U.S. 476 ; Chaplinsky v. New Hampshire, 315 U.S. 568 . </s> [Footnote 10 A wholly different balance was struck when the organizational [424 U.S. 507, 522] activity was carried on by employees already rightfully on the employer's property, since the employer's management interests rather than his property interests were there involved. Republic Aviation Corp. v. NLRB, 324 U.S. 793 . This difference is "one of substance." NLRB v. Babcock & Wilcox Co., 351 U.S., at 113 . </s> [Footnote 11 This is not to say that Hudgens was not a statutory "employer" under the Act. See n. 3, supra. </s> [Footnote 12 351 U.S., at 112 . This language was explicitly reaffirmed as stating "the guiding principle" in Central Hardware Co. v. NLRB, 407 U.S. 539, 544 . </s> MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE joins, concurring. </s> Although I agree with MR. JUSTICE WHITE'S view concurring in the result that Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), did not overrule Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), and that the present case can be distinguished narrowly from Logan Valley, I nevertheless have joined the opinion of the Court today. </s> The law in this area, particularly with respect to whether First Amendment or labor law principles are applicable, has been less than clear since Logan Valley analogized a shopping center to the "company town" in Marsh v. Alabama, 326 U.S. 501 (1946). Mr. Justice Black, the author of the Court's opinion in Marsh, thought the decisions were irreconcilable. 1 I now agree [424 U.S. 507, 524] with Mr. Justice Black that the opinions in these cases cannot be harmonized in a principled way. Upon more mature thought, I have concluded that we would have been wiser in Lloyd Corp. to have confronted this disharmony rather than draw distinctions based upon rather attenuated factual differences. 2 </s> The Court's opinion today clarifies the confusion engendered by these cases by accepting Mr. Justice Black's reading of Marsh and by recognizing more sharply the distinction between the First Amendment and labor law issues that may arise in cases of this kind. It seems to me that this clarification of the law is desirable. </s> [Footnote 1 In his dissent in Logan Valley, Mr. Justice Black stated that "Marsh was never intended to apply to this kind of situation. . . . [T]he basis on which the Marsh decision rested was that the property involved encompassed an area that for all practical purposes had been turned into a town; the area had all the attributes of a town [424 U.S. 507, 524] and was exactly like any other town in Alabama. I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama." 391 U.S., at 330 , 331. </s> [Footnote 2 The editorial "we" above is directed primarily to myself as the author of the Court's opinion in Lloyd Corp. </s> MR. JUSTICE WHITE, concurring in the result. </s> While I concur in the result reached by the Court, I find it unnecessary to inter Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), and therefore do not join the Court's opinion. I agree that "the constitutional guarantee of free expression has no part to play in a case such as this," ante, at 521; but Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), did not overrule Logan Valley, either expressly or implicitly, and I would not, somewhat after the fact, say that it did. </s> One need go no further than Logan Valley itself, for the First Amendment protection established by Logan Valley was expressly limited to the picketing of a specific store for the purpose of conveying information with respect to the operation in the shopping center of that store: </s> "The picketing carried on by petitioners was [424 U.S. 507, 525] directed specifically at patrons of the Weis Market located within the shopping center and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put." 391 U.S., at 320 n. 9. </s> On its face, Logan Valley does not cover the facts of this case. The pickets of the Butler Shoe Co. store in the North DeKalb Shopping Center were not purporting to convey information about the "manner in which that particular [store] was being operated" but rather about the operation of a warehouse not located on the center's premises. The picketing was thus not "directly related in its purpose to the use to which the shopping center property was being put." </s> The First Amendment question in this case was left open in Logan Valley. I dissented in Logan Valley, 391 U.S., p. 337, and I see no reason to extend it further. Without such extension, the First Amendment provides no protection for the picketing here in issue and the Court need say no more. Lloyd v. Tanner is wholly consistent with this view. There is no need belatedly to overrule Logan Valley, only to follow it as it is. </s> MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting. </s> The Court today holds that the First Amendment poses no bar to a shopping center owner's prohibiting speech within his shopping center. After deciding this far-reaching constitutional question, and overruling Food [424 U.S. 507, 526] Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), in the process, the Court proceeds to remand for consideration of the statutory question whether the shopping center owner in this case unlawfully interfered with the Butler Shoe Co. employees' rights under 7 of the National Labor Relations Act, 29 U.S.C. 157. </s> In explaining why it addresses any constitutional issue at all, the Court observes simply that the history of the litigation has been one of "shifting positions on the part of the litigants, the Board, and the Court of Appeals," ante, at 512, as to whether relief was being sought, or granted, under the First Amendment, under 7 of the Act, or under some combination of the two. On my reading, the Court of Appeals' decision and, even more clearly, the Board's decision here for review, were based solely on 7, not on the First Amendment; and this Court ought initially consider the statutory question without reference to the First Amendment - the question on which the Court remands. But even under the Court's reading of the opinions of the Board and the Court of Appeals, the statutory question on which it remands is now before the Court. By bypassing that question and reaching out to overrule a constitutionally based decision, the Court surely departs from traditional modes of adjudication. </s> I would affirm the judgment of the Court of Appeals on purely statutory grounds. And on the merits of the only question that the Court decides, I dissent from the overruling of Logan Valley. </s> I </s> The Court views the history of this litigation as one of "shifting positions" and "considerable confusion." To be sure, the Board's position has not been constant. But the ultimate decisions by the Administrative Law Judge [424 U.S. 507, 527] and by the Board rested solely on 7 of the NLRA, not on the First Amendment. </s> As the Court indicates, the Board's initial determination that petitioner violated 8 (a) (1) of the Act, 29 U.S.C. 158 (a) (1), was based on its reading of Logan Valley, a First Amendment case. But before the Court of Appeals reviewed this initial determination, this Court decided Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and Central Hardware Co. v. NLRB, 407 U.S. 539 (1972), and the Board moved to have the case remanded for reconsideration in light of these two decisions. The Court of Appeals granted the motion. </s> Lloyd and Central Hardware demonstrated, each in its own way, that Logan Valley could not be read as broadly as some Courts of Appeals had read it. And together they gave a signal to the Board and to the Court of Appeals that it would be wise to pass upon statutory contentions in cases of this sort before turning to broad constitutional questions, the answers to which could no longer be predicted with certainty. See Central Hardware, supra, at 548, 549 (MARSHALL, J., dissenting); Lloyd, supra, at 584 (MARSHALL, J., dissenting). Taking heed of this signal, the Administrative Law Judge and the Board proceeded on remand to assess the conflicting rights of the employees and the shopping center owner within the framework of the NLRA. The Administrative Law Judge's recommendation that petitioner be found guilty of a 8 (a) (1) violation rested explicitly on the statutory test enunciated by this Court in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). That the Administrative Law Judge supported his "realistic view of the facts" by referring to this Court's "factual view" of the Logan Valley case surely cannot be said to alter the judge's explicitly stated legal theory, which was a statutory one. [424 U.S. 507, 528] </s> Even more clearly, the Board's rationale in agreeing with the Administrative Law Judge's recommendation was exclusively a statutory one. Nowhere in the Board's decision, Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 205 N. L. R. B. 628 (1973), is there any reference to the First Amendment or any constitutionally based decision. The Board reached its result "for the reasons specifically set forth in Frank Visceglia and Vincent Visceglia, t/a Peddie Buildings," 1 ibid., a case decided solely on 7 grounds. In Visceglia the Board had specifically declined to treat the picketing area in question as the functional equivalent of a business block and rejected the applicability of Logan Valley's First Amendment analysis, finding an interference with 7 rights under a "modified" Babcock & Wilcox test. 2 When the Board in this case relied upon the rationale of Visceglia, it was evidently proceeding under the assumption that the First Amendment had no application. Its ultimate conclusion that petitioner violated 8 (a) (1) of the Act was purely the result of an "accommodation between [his] property rights and the employees' Section 7 rights." 205 N. L. R. B. 628. </s> The Court acknowledges that the Court of Appeals' enforcement of the Board's order was based on its view of the employees' 7 rights. But the Court suggests that the following reference to Lloyd, a constitutional [424 U.S. 507, 529] case, indicates that the Court of Appeals' decision was infected with constitutional considerations: </s> "Lloyd burdens the General Counsel with the duty to prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective." 501 F.2d 161, 169. </s> A reading of the entire Court of Appeals' opinion, however, demonstrates that this language was not intended to inject any constitutional considerations into the case. The Court of Appeals' analysis began with an evaluation of the statutory criteria urged by the parties. 3 Rejecting both parties' formulations of the appropriate statutory standard, the Court of Appeals adopted a modified version of an approach, suggested by an amicus, that incorporates a consideration of the relationship of the protest to the use to which the private property in question is put, and the availability of reasonably effective alternative means of communicating with the intended audience. While the amicus had derived its approach from Lloyd and Logan Valley, two constitutional cases, the Court of Appeals was careful to note that the approach it applied was a statutory, not a constitutional one: </s> "Section 7 rights are not necessarily coextensive [424 U.S. 507, 530] with constitutional rights, see Central Hardware v. NLRB, supra ([MARSHALL], J., dissenting). Nevertheless, we agree that the rule suggested by amicus, although having its genesis in the constitutional issues raised in Lloyd, isolates the factors relevant to determining when private property rights of a shopping center owner should be required to yield to the section 7 rights of labor picketers." 501 F.2d, at 167. </s> With that explanation of the Court of Appeals' view of the relevance of Lloyd, it is evident that the subsequent reference to Lloyd, quoted out of context by the Court, was not intended to alter the purely statutory basis of the Court of Appeals' decision. 4 </s> In short, the Board's decision was clearly unaffected by constitutional considerations, and I do not read the Court of Appeals' opinion as intimating that its statutory result was constitutionally mandated. In its present posture, the case presents no constitutional question to the Court. Surely it is of no moment that the Board through its counsel now urges this Court to decide, as part of its statutory analysis, what result is compelled by the First Amendment. The posture of the case is determined by the decisions of the Board and the Court of Appeals, not by the arguments advanced in the Board's brief. Since I read those decisions as purely statutory ones, I would proceed to consider the purely statutory question whether, assuming that petitioner is not restricted by the First Amendment, his actions nevertheless [424 U.S. 507, 531] violated 7 of the Act. This is precisely the issue on which the Court remands the case. </s> At the very least it is clear that neither the Board nor the Court of Appeals decided the case solely on First Amendment grounds. The Court itself acknowledges that both decisions were based on 7. The most that can be said, and all that the Court suggests, is that the Court of Appeals' view of 7 was colored by the First Amendment. But even if that were the case, this Court ought not decide any First Amendment question - particularly in a way that requires overruling one of our decisions - without first considering the statutory question without reference to the First Amendment. It is a well-established principle that constitutional questions should not be decided unnecessarily. See, e. g., Hagans v. Lavine, 415 U.S. 528, 543 , 549 (1974); Rosenberg v. Fleuti, 374 U.S. 449 (1963); Ashwander v. TVA, 297 U.S. 288, 346 -347 (1936) (Brandeis, J., concurring). If the Court of Appeals disregarded that principle, that is no excuse for this Court's doing so. </s> As already indicated, the Board, through its counsel, urges the Court to apply First Amendment considerations in defining the scope of 7 of the Act. The Board takes this position because it is concerned that the scope of 7 not fall short of the scope of the First Amendment, the result of which would be that picketing employees could obtain greater protection by court suits than by invoking the procedures of the NLRA. While that general concern is a legitimate one, it does not justify the constitutional adjudication undertaken by the Court. If it were undisputed that the pickets in this case enjoyed some degree of First Amendment protection against interference by petitioner, it might be difficult to separate a consideration of the scope of that First Amendment protection from an analysis of the scope of [424 U.S. 507, 532] protection afforded by 7. But the constitutional question that the Court decides today is whether the First Amendment operates to restrict petitioner's actions in any way at all, and that question is clearly severable, at least initially, from a consideration of 7's scope - as proved by the Court's remand of the case. </s> Thus even if, as the court suggests, the Court of Appeals' view of 7 was affected by the First Amendment, the Court still could have proceeded initially to decide the statutory question divorced of constitutional considerations. I cannot understand the Court's bypassing that purely statutory question to overrule a First Amendment decision less than 10 years old. And I certainly cannot understand the Court's remand of the purely statutory question to the Board, whose decision was so clearly unaffected by any constitutional considerations that the Court does not even suggest otherwise. </s> II </s> On the merits of the purely statutory question that I believe is presented to the Court, I would affirm the judgment of the Court of Appeals. To do so, one need not consider whether consumer picketing by employees is subject to a more permissive test under 7 than the test articulated in Babcock & Wilcox for organizational activity by nonemployees. In Babcock & Wilcox we stated that an employer "must allow the union to approach his employees on his property" 5 if the employees are "beyond the reach of reasonable efforts to communicate with them," 351 U.S., at 113 - that is, if "other means" of communication are not "readily available." Id., at 114. Thus the general standard that emerges [424 U.S. 507, 533] from Babcock & Wilcox is the ready availability of reasonably effective alternative means of communication with the intended audience. </s> In Babcock & Wilcox itself, the intended audience was the employees of a particular employer, a limited identifiable group; and it was thought that such an audience could be reached effectively by means other than entrance onto the employer's property - for example, personal contact at the employees' living quarters, which were "in reasonable reach." Id., at 113. In this case, of course, the intended audience was different, and what constitutes reasonably effective alternative means of communication also differs. As the Court of Appeals noted, the intended audience in this case "was only identifiable as part of the citizenry of greater Atlanta until it approached the store, and thus for the picketing to be effective, the location chosen was crucial unless the audience could be known and reached by other means." 501 F.2d, at 168. Petitioner contends that the employees could have utilized the newspapers, radio, television, direct mail, handbills, and billboards to reach the citizenry of Atlanta. But none of those means is likely to be as effective as on-location picketing: the initial impact of communication by those means would likely be less dramatic, and the potential for dilution of impact significantly greater. As this Court has observed: </s> "Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word." Hughes v. Superior Court, 339 U.S. 460, 465 (1950). [424 U.S. 507, 534] </s> In addition, all of the alternatives suggested by petitioner are considerably more expensive than on-site picketing. Certainly Babcock & Wilcox did not require resort to the mass media, 6 or to more individualized efforts on a scale comparable to that which would be required to reach the intended audience in this case. </s> Petitioner also contends that the employees could have picketed on the public rights-of-way, where vehicles entered the shopping center. Quite apart from considerations of safety, that alternative was clearly inadequate: prospective customers would have had to read the picketers' placards while driving by in their vehicles - a difficult task indeed. Moreover, as both the Board and the Court of Appeals recognized, picketing at an entrance used by customers of all retail establishments in the shopping center, rather than simply customers of the Butler Shoe Co. store, may well have invited undesirable secondary effects. </s> In short, I believe the Court of Appeals was clearly correct in concluding that "alternatives to picketing inside the mall were either unavailable or inadequate." 501 F.2d, at 169. Under Babcock & Wilcox, then, the picketing in this case was protected by 7. I would affirm the judgment of the Court of Appeals on that basis. </s> III </s> Turning to the constitutional issue resolved by the Court, I cannot escape the feeling that Logan Valley has been laid to rest without ever having been accorded a proper burial. The Court today announces that "the ultimate holding in Lloyd amounted to a total rejection [424 U.S. 507, 535] of the holding in Logan Valley." Ante, at 518. To be sure, some Members of the Court, myself included, believed that Logan Valley called for a different result in Lloyd and alluded in dissent to the possibility that "it is Logan Valley itself that the Court finds bothersome." 407 U.S., at 570 , 584 (MARSHALL, J., dissenting). But the fact remains that Logan Valley explicitly reserved the question later decided in Lloyd, and Lloyd carefully preserved the holding of Logan Valley. And upon reflection, I am of the view that the two decisions are reconcilable. </s> A </s> In Logan Valley the Court was faced with union picketing against a nonunion supermarket located in a large shopping center. Our holding was a limited one: </s> "All we decide here is that because the shopping center serves as the community business block `and is freely accessible and open to the people in the area and those passing through,' Marsh v. Alabama, 326 U.S., at 508 , the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put." 391 U.S., at 319 -320 (footnote omitted). </s> We carefully noted that we were "not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not . . . directly related in its purpose to the use to which the shopping center property was being put." Id., at 320 n. 9. </s> Lloyd involved the distribution of antiwar handbills in a large shopping center, and while some of us viewed [424 U.S. 507, 536] the case differently, 407 U.S., at 570 , 577-579 (MARSHALL, J., dissenting), the Court treated it as presenting the question left open in Logan Valley. But the Court did no more than decide that question. It preserved the holding of Logan Valley, as limited to cases in which (1) the picketing is directly related in its purpose to the use to which the shopping center property is put, and (2) "no other reasonable opportunities for the pickets to convey their message to their intended audience [are] available." 407 U.S., at 563 . </s> The Court today gives short shrift to the language in Lloyd preserving Logan Valley, and quotes extensively from language that admittedly differs in emphasis from much of the language of Logan Valley. But even the language quoted by the Court says no more than that the dedication of the Lloyd Center to public use was more limited than the dedication of the company town in Marsh v. Alabama, 326 U.S. 501 (1946), and that the pickets in Lloyd were not entitled to exercise "the asserted First Amendment rights" - that is, the right to distribute antiwar handbills. </s> Any doubt about the limited scope of Lloyd is removed completely by a consideration of Central Hardware Co. v. NLRB, 407 U.S. 539 (1972), decided the same day as Lloyd. In Central Hardware the Court was faced with solicitation by nonemployee union organizers on a parking lot of a retail store that was not part of a shopping center complex - activity clearly related to the use to which the private property had been put. The Court found the activity unprotected by the First Amendment, but in a way that explicitly preserved the holding in Logan Valley. The Court could have held that the First Amendment has no application to use-related activity on privately owned business property, thereby rejecting Logan Valley, but instead the Court chose to [424 U.S. 507, 537] distinguish the parking lot in Central Hardware from the shopping center complex in Logan Valley. Rejecting the argument that the opening of property to the general public suffices to activate the prohibition of the First Amendment, the Court explained: </s> "This analysis misconceives the rationale of Logan Valley. Logan Valley involved a large commercial shopping center which the Court found had displaced, in certain relevant respects, the functions of the normal municipal `business block.' First and Fourteenth Amendment free-speech rights were deemed infringed under the facts of that case when the property owner invoked the trespass laws of the State against the pickets. </s> "Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. . . . The only fact relied upon for the argument that Central's parking lots have acquired the characteristics of a public municipal facility is that they are `open to the public.' Such an argument could be made with respect to almost every retail and service establishment in the country, regardless of size or location. To accept it would cut Logan Valley entirely away from its roots in Marsh." 407 U.S., at 547 (footnote omitted). </s> If, as the Court tells us, "the rationale of Logan Valley did not survive the Court's decision in the Lloyd case," ante, at 518, one wonders why the Court in Central Hardware, decided the same day as Lloyd, implicitly reaffirmed Logan Valley's rationale. [424 U.S. 507, 538] </s> B </s> It is inescapable that after Lloyd, Logan Valley remained "good law," binding on the state and federal courts. Our institutional duty in this case, if we consider the constitutional question at all, is to examine whether Lloyd and Logan Valley can continue to stand side by side, and, if they cannot, to decide which one must fall. I continue to believe that the First Amendment principles underlying Logan Valley are sound, and were unduly limited in Lloyd. But accepting Lloyd, I am not convinced that Logan Valley must be overruled. </s> The foundation of Logan Valley consisted of this Court's decisions recognizing a right of access to streets, sidewalks, parks, and other public places historically associated with the exercise of First Amendment rights. E. g., Hague v. CIO, 307 U.S. 496, 515 -516 (1939) (opinion of Roberts, J.); Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310 U.S. 296, 308 (1940); Cox v. New Hampshire, 312 U.S. 569, 574 (1941); Jamison v. Texas, 318 U.S. 413 (1943); Saia v. New York, 334 U.S. 558 (1948). Thus, the Court in Logan Valley observed that access to such forums "cannot constitutionally be denied broadly and absolutely." 391 U.S., at 315 . The importance of access to such places for speech-related purposes is clear, for they are often the only places for effective speech and assembly. </s> Marsh v. Alabama, supra, which the Court purports to leave untouched, made clear that in applying those cases granting a right of access to streets, sidewalks, and other public places, courts ought not let the formalities of title put an end to analysis. The Court in Marsh observed that "the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the [424 U.S. 507, 539] property belongs to a private corporation." 326 U.S., at 503 . That distinction was not determinative: </s> "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." Id., at 506. </s> Regardless of who owned or possessed the town in Marsh, the Court noted, "the public . . . has an identical interest in the functioning of the community in such manner that the channels of communication remain free," id., at 507, and that interest was held to prevail. </s> The Court adopts the view that Marsh has no bearing on this case because the privately owned property in Marsh involved all the characteristics of a typical town. But there is nothing in Marsh to suggest that its general approach was limited to the particular facts of that case. The underlying concern in Marsh was that traditional public channels of communication remain free, regardless of the incidence of ownership. Given that concern, the crucial fact in Marsh was that the company owned the traditional forums essential for effective communication; it was immaterial that the company also owned a sewer system and that its property in other respects resembled a town. </s> In Logan Valley we recognized what the Court today refuses to recognize - that the owner of the modern shopping center complex, by dedicating his property to public use as a business district, to some extent displaces the "State" from control of historical First Amendment forums, and may acquire a virtual monopoly of places suitable for effective communication. The roadways, parking lots, and walkways of the modern shopping center [424 U.S. 507, 540] may be as essential for effective speech as the streets and sidewalks in the municipal or company-owned town. 7 I simply cannot reconcile the Court's denial of any role for the First Amendment in the shopping center with Marsh's recognition of a full role for the First Amendment on the streets and sidewalks of the company-owned town. </s> My reading of Marsh admittedly carried me farther than the Court in Lloyd, but the Lloyd Court remained responsive in its own way to the concerns underlying Marsh. Lloyd retained the availability of First Amendment protection when the picketing is related to the function of the shopping center, and when there is no other reasonable opportunity to convey the message to the intended audience. Preserving Logan Valley subject to Lloyd's two related criteria guaranteed that the First Amendment would have application in those situations in which the shopping center owner had most clearly monopolized the forums essential for effective communication. This result, although not the optimal one in my view, Lloyd Corp. v. Tanner, 407 U.S., at 579 -583 (MARSHALL, J., dissenting), is nonetheless defensible. </s> In Marsh, the private entity had displaced the "state" from control of all the places to which the public had historically enjoyed access for First Amendment purposes, and the First Amendment was accordingly held fully applicable to the private entity's conduct. The shopping center owner, on the other hand, controls only [424 U.S. 507, 541] a portion of such places, leaving other traditional public forums available to the citizen. But the shopping center owner may nevertheless control all places essential for the effective undertaking of some speech-related activities - namely, those related to the activities of the shopping center. As for those activities, then, the First Amendment ought to have application under the reasoning of Marsh, and that was precisely the state of the law after Lloyd. </s> The Court's only apparent objection to this analysis is that it makes the applicability of the First Amendment turn to some degree on the subject matter of the speech. But that in itself is no objection, and the cases cited by the Court to the effect that government may not "restrict expression because of its message, its ideas, its subject matter, or its content," Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972), are simply inapposite. In those cases, it was clearly the government that was acting, and the First Amendment's bar against infringing speech was unquestionably applicable; the Court simply held that the government, faced with a general command to permit speech, cannot choose to forbid some speech because of its message. The shopping center cases are quite different; in these cases the primary regulator is a private entity whose property has "assume[d] to some significant degree the functional attributes of public property devoted to public use." Central Hardware Co. v. NLRB, 407 U.S., at 547 . The very question in these cases is whether, and under what circumstances, the First Amendment has any application at all. The answer to that question, under the view of Marsh described above, depends to some extent on the subject of the speech the private entity seeks to regulate, because the degree to which the private entity monopolizes the effective channels of communication [424 U.S. 507, 542] may depend upon what subject is involved. 8 This limited reference to the subject matter of the speech poses none of the dangers of government suppression or censorship that lay at the heart of the cases cited by the Court. See, e. g., Police Dept. of Chicago v. Mosley, supra, at 95-96. It is indeed ironic that those cases, whose obvious concern was the promotion of free speech, are cited today to require its surrender. </s> In the final analysis, the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems, I believe, from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment's guarantee of freedom of speech. No one would seriously question the legitimacy of the values of privacy and individual autonomy traditionally associated with privately owned property. But property that is privately owned is not always held for private use, and when a property owner opens his property to public use the force of those values diminishes. A degree of privacy is necessarily surrendered; thus, the privacy interest that petitioner retains when he leases space to 60 retail business and invites the public onto his land for the transaction of business with other members of the public is small indeed. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65 -67 (1973). And while the owner of property open to public use may not automatically surrender any of his autonomy interest in managing the property as he sees fit, there is nothing new about the notion that that autonomy interest must be accommodated with the interests of the public. As [424 U.S. 507, 543] this Court noted some time ago, albeit in another context: </s> "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." Munn v. Illinois, 94 U.S. 113, 126 (1877). </s> The interest of members of the public in communicating with one another on subjects relating to the businesses that occupy a modern shopping center is substantial. Not only employees with a labor dispute, but also consumers with complaints against business establishments, may look to the location of a retail store as the only reasonable avenue for effective communication with the public. As far as these groups are concerned, the shopping center owner has assumed the traditional role of the state in its control of historical First Amendment forums. Lloyd and Logan Valley recognized the vital role the First Amendment has to play in such cases, and I believe that this Court errs when it holds otherwise. </s> [Footnote 1 203 N. L. R. B. 265 (1973), enforcement denied, NLRB v. Visceglia, 498 F.2d 43 (CA3 1974). </s> [Footnote 2 The Board found the "principles of Babcock & Wilcox . . . to be applicable," 203 N. L. R. B., at 266-267, but seized upon a factual distinction that the Babcock & Wilcox Court had itself suggested - namely, the distinction between activity by employees, as in Visceglia, and activity by nonemployees, as in Babcock & Wilcox. </s> [Footnote 3 The Board's General Counsel urged a rule, based upon Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), that the employee pickets could not be excluded from the shopping center unless it could be shown that the picketing interfered with the center's normal functioning. While the Board's General Counsel thus did not rely on Babcock & Wilcox, the basis for the Board's decision, he still relied on a statutory case, not a constitutional one. </s> Petitioner argued in the Court of Appeals that under Babcock & Wilcox the picketing could be prohibited unless it could be shown that there were no other available channels of communication with the intended audience. </s> [Footnote 4 Indeed, the Court of Appeals quite clearly viewed the Administrative Law Judge's recommendation and the Board's decision as statutorily based. And the court did not even make the factual finding of functional equivalence to a business district that it recognized as a prerequisite to the application of the First Amendment. 501 F.2d, at 164. </s> [Footnote 5 It is irrelevant, in my view, that the property in this case was owned by the shopping center owner rather than by the employer. The nature of the property interest is the same in either case. </s> [Footnote 6 The only alternative means of communication referred to in Babcock & Wilcox were "personal contacts on streets or at home, telephones, letters or advertised meetings to get in touch with the employees." 351 U.S., at 111 . </s> [Footnote 7 No point would be served by adding to the observations in Logan Valley and my dissent in Lloyd with respect to the growth of suburban shopping centers and the proliferation of activities taking place in such centers. See Logan Valley, 391 U.S., at 324 ; Lloyd, 407 U.S., at 580 , 585-586. See also Note, Lloyd Corp. v. Tanner: The Demise of Logan Valley and the Disguise of Marsh, 61 Geo. L. J. 1187, 1216-1219 (1973). </s> [Footnote 8 See The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 135-138 (1968). </s> [424 U.S. 507, 544]

United States Supreme Court JONES v. UNITED STATES(2000) No. 99-5739 Argued: March 21, 2000Decided: May 22, 2000 </s> Petitioner Jones tossed a Molotov cocktail into a home owned and occupied by his cousin as a dwelling place for everyday family living. The ensuing fire severely damaged the home. Jones was convicted in the District Court of violating, inter alia, 18 U.S.C. §844(i), which makes it a federal crime to "maliciously damag[e] or destro[y], ... by means of fire or an explosive, any building ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." The Seventh Circuit affirmed, rejecting Jones's contention that §844(i), when applied to the arson of a private residence, exceeds the authority vested in Congress under the Commerce Clause. </s> Held: Because an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity, arson of such a dwelling is not subject to federal prosecution under §844(i). Pp. 3-10. </s> (a) In support of its argument that §844(i) reaches the arson of an owner-occupied private residence, the Government relies principally on the breadth of the statutory term "affecting ... commerce," words that, when unqualified, signal Congress' intent to invoke its full Commerce Clause authority. But §844(i) contains the qualifying words "used in" a commerce-affecting activity. The key word is "used." Congress did not define the crime as the explosion of a building whose damage or destruction might affect interstate commerce, but required that the damaged or destroyed property itself have been used in commerce or in an activity affecting commerce. The proper inquiry, therefore, is into the function of the building itself, and then into whether that function affects interstate commerce. The Court rejects the Government's argument that the Indiana residence involved in this case was constantly "used" in at least three "activit[ies] affecting commerce":(1) it was "used" as collateral to obtain and secure a mortgage from an Oklahoma lender, who, in turn, "used" it as security for the loan; (2) it was "used" to obtain from a Wisconsin insurer a casualty insurance policy, which safeguarded the interests of the homeowner and the mortgagee; and (3) it was "used" to receive natural gas from sources outside Indiana. Section 844(i)'s use-in-commerce requirement is most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce. See, e.g., Bailey v. United States, 516 U.S. 137, 143, 145. It surely is not the common perception that a private, owner-occupied residence is "used" in the "activity" of receiving natural gas, a mortgage, or an insurance policy. Cf. id., at 145. The Government does not allege that the residence here served as a home office or the locus of any commercial undertaking. The home's only "active employment," so far as the record reveals, was for the everyday living of Jones's cousin and his family. Russell v. United States, 471 U.S. 858, 862--in which the Court held that particular property was being used in an "activity affecting commerce" under §844(i) because its owner was renting it to tenants at the time he attempted to destroy it by fire--does not warrant a less "use"-centered reading of §844(i) in this case. The Court there observed that "[b]y its terms," §844(i) applies only to "property that is `used' in an `activity' that affects commerce," and ruled that "the rental of real estate" fits that description, ibid. Here, the homeowner did not use his residence in any trade or business. Were the Court to adopt the Government's expansive interpretation, hardly a building in the land would fall outside §844(i)'s domain, and the statute's limiting language, "used in," would have no office. Judges should hesitate to treat statutory terms in any setting as surplusage, particularly when the words describe an element of a crime. E.g., Ratzlaf v. United States, 510 U.S. 135, 140-141. Pp. 3-8. </s> (b) The foregoing reading is in harmony with the guiding principle that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the Court's duty is to adopt the latter. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575. In holding that a statute making it a federal crime to possess a firearm within 1,000 feet of a school exceeded Congress' power to regulate commerce, this Court, in United States v. Lopez, 514 U.S. 549, stressed that the area was one of traditional state concern, see, e.g., id., at 561, n.3, and that the legislation aimed at activity in which neither the actors nor their conduct had a commercial character, e.g., id., at 560-562. Given the concerns brought to the fore in Lopez, it is appropriate to avoid the constitutional question that would arise were the Court to read §844(i) to render the traditionally local criminal conduct in which Jones engaged a matter for federal enforcement. United States v. Bass, 404 U.S. 336, 350. The Court's comprehension of §844(i) is additionally reinforced by other interpretive guides. Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, Rewis v. United States, 401 U.S. 808, 812, and when choice must be made between two readings of what conduct Congress has made a crime, it is appropriate, before choosing the harsher alternative, to require that Congress should have spoken in language that is clear and definite, United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222. Moreover, unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes. Bass, 404 U.S., at 349. To read §844(i) as encompassing the arson of an owner-occupied private home would effect such a change, for arson is a paradigmatic common-law state crime. Pp. 8-9. </s> 178 F. 3d 479, reversed and remanded. </s> Ginsburg, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, in which Thomas, J., joined. Thomas, J., filed a concurring opinion, in which Scalia, J., joined. </s> DEWEY J. JONES, PETITIONER v. UNITED STATES </s> on writ of certiorari to the united states court of appeals for the seventh circuit </s> [May 22, 2000] </s> Justice Ginsburg delivered the opinion of the Court. </s> It is a federal crime under 18 U.S.C. §844(i) (1994 ed., Supp. IV) to damage or destroy, "by means of fire or an explosive, any ... property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." This case presents the question whether arson of an owner-occupied private residence falls within §844(i)'s compass. Construing the statute's text, we hold that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity; arson of such a dwelling, therefore, is not subject to federal prosecution under §844(i). Our construction of §844(i) is reinforced by the Court's opinion in United States v. Lopez, 514 U.S. 549 (1995), and the interpretive rule that constitutionally doubtful constructions should be avoided where possible, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). </s> I </s> On February 23, 1998, petitioner Dewey Jones tossed a Molotov cocktail through a window into a home in Fort </s> Wayne, Indiana, owned and occupied by his cousin. No one was injured in the ensuing fire, but the blaze severely damaged the home. A federal grand jury returned a three-count indictment charging Jones with arson, 18 U.S.C. §844(i) (1994 ed., Supp. IV); using a destructive device during and in relation to a crime of violence (the arson), 18 U.S.C. §924(c); and making an illegal destructive device, 26 U.S.C. §5861(f). Jones was tried under that indictment in the Northern District of Indiana and convicted by a jury on all three counts.1 The District Court sentenced him, pursuant to the Sentencing Reform Act of 1984, to a total prison term of 35 years, to be followed by five years of supervised release. The court also ordered Jones to pay $77,396.87 to the insurer of the damaged home as restitution for its loss. Jones appealed, and the Court of Appeals for the Seventh Circuit affirmed the judgment of the District Court. 178 F.3d 479 (1999). </s> Jones unsuccessfully urged, both before the District Court and on appeal to the Seventh Circuit, that §844(i), when applied to the arson of a private residence, exceeds the authority vested in Congress under the Commerce Clause of the Constitution, Art. I, §8, cl.3. Courts of Appeals have divided both on the question whether §844(i) applies to buildings not used for commercial purposes,2 and on the constitutionality of such an application.3 We granted certiorari, 528 U.S. 1002 (1999), and framed as the question presented: </s> "Whether, in light of United States v. Lopez, 514 U.S. 549 (1995), and the interpretive rule that constitutionally doubtful constructions should be avoided, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568,575 (1988), 18 U.S.C. §844(i) applies to the arsonof a private residence; and if so, whether its application to the private residence in the present case is constitutional." </s> Satisfied that §844(i) does not reach an owner-occupied residence that is not used for any commercial purpose, we reverse the Court of Appeals' judgment. </s> II </s> Congress enacted 18 U.S.C. §844(i) as part of Title XI of the Organized Crime Control Act of 1970, Pub. L. 91-452, §1102, 84 Stat. 952, "because of the need `to curb the use, transportation, and possession of explosives.'" Russell v. United States, 471 U.S. 858, 860, n.5 (1985) (citation omitted). The word "fire," which did not appear in §844(i) as originally composed, was introduced by statutory amendment in 1982.4 As now worded, §844(i) (1994 ed., Supp. IV) reads in relevant part: </s> "Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both ...." </s> We previously construed §844(i) in Russell v. United States, 471 U.S. 858 (1985), and there held that §844(i) applies to a building "used as rental property," ibid. The petitioner-defendant in Russell had unsuccessfully attempted to set fire to a two-unit apartment building he owned. He earned rental income from the property and "treated it as business property for tax purposes." Id., at 859. Our decision stated as the dispositive fact: "Petitioner was renting his apartment building to tenants at the time he attempted to destroy it by fire." Id., at 862. It followed from that fact, the Russell opinion concluded, that "[t]he property was ... being used in an activity affecting commerce within the meaning of §844(i)." Ibid.5 </s> We now confront a question that was not before the Court in Russell: Does §844(i) cover property occupied and used by its owner not for any commercial venture, but as a private residence. Is such a dwelling place, in the words of §844(i), "used in ... any activity affecting ... commerce"? </s> In support of its argument that §844(i) reaches the arson of an owner-occupied private residence, the Government relies principally on the breadth of the statutory term "affecting ... commerce," see Brief for United States 10, 16-17, words that, when unqualified, signal Congress' intent to invoke its full authority under the Commerce Clause. But §844(i) contains the qualifying words "used in" a commerce-affecting activity. The key word is "used." "Congress did not define the crime described in §844(i) as the explosion of a building whose damage or destruction might affect interstate commerce ...." United States v. Mennuti, 639 F.2d 107, 110 (CA2 1981) (Friendly, J.).6 Congress "require[d] that the damaged or destroyed property must itself have been used in commerce or in an activity affecting commerce." Ibid. The proper inquiry, we agree, "is into the function of the building itself, and then a determination of whether that function affects interstate commerce." United States v. Ryan, 9 F.3d 660, 675 (CA8 1993) (Arnold, C. J., concurring in part and dissenting in part).7 </s> The Government urges that the Fort Wayne, Indiana residence into which Jones tossed a Molotov cocktail was constantly "used" in at least three "activit[ies] affecting commerce." First, the homeowner "used" the dwelling as collateral to obtain and secure a mortgage from an Oklahoma lender; the lender, in turn, "used" the property as security for the home loan. Second, the homeowner "used" the residence to obtain a casualty insurance policy from a Wisconsin insurer. That policy, the Government points out, safeguarded the interests of the homeowner and the mortgagee. Third, the homeowner "used" the dwelling to receive natural gas from sources outside Indiana. See Brief for United States 19-23. </s> The Government correctly observes that §844(i) excludes no particular type of building (it covers "any building"); the provision does, however, require that the building be "used" in an activity affecting commerce. That qualification is most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce. Although "variously defined," the word "use," in legislation as in conversation, ordinarily signifies "active employment." Bailey v. United States, 516 U.S. 137, 143, 145 (1995); see also Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) ("When terms used in a statute are undefined, we give them their ordinary meaning."). </s> It surely is not the common perception that a private, owner-occupied residence is "used" in the "activity" of receiving natural gas, a mortgage, or an insurance policy. Cf. Bailey, 516 U.S., at 145 (interpreting the word "use," as it appears in 18 U.S.C. §924(c)(1), to mean active employment of a firearm and rejecting the Government's argument that a gun is "used" whenever its presence "protect[s] drugs" or "embolden[s]" a drug dealer). The Government does not allege that the Indiana residence involved in this case served as a home office or the locus of any commercial undertaking. The home's only "active employment," so far as the record reveals, was for the everyday living of Jones's cousin and his family. </s> Our decision in Russell does not warrant a less "use"-centered reading of §844(i). In that case, which involved the arson of property rented out by its owner, see supra, at 4, the Court referred to the recognized distinction between legislation limited to activities "in commerce" and legislation invoking Congress' full power over activity substantially "affecting ... commerce." 471 U.S., at 859-860 and n.4. The Russell opinion went on to observe, however, that "[b]y its terms," §844(i) applies only to "property that is `used' in an `activity' that affects commerce." Id., at 862. "The rental of real estate," the Court then stated, "is unquestionably such an activity." Ibid.8 Here, as earlier emphasized, the owner used the property as his home, the center of his family life. He did not use the residence in any trade or business. </s> Were we to adopt the Government's expansive interpretation of §844(i), hardly a building in the land would fall outside the federal statute's domain. Practically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection, financed or insured by enterprises that do business across state lines, or bears some other trace of interstate commerce. See, e.g., FERC v. Mississippi, 456 U.S. 742, 757 (1982) (observing that electric energy is consumed "in virtually every home" and that "[n]o State relies solely on its own resources" to meet its inhabitants' demand for the product). If such connections sufficed to trigger §844(i), the statute's limiting language, "used in" any commerce-affecting activity, would have no office. See United States v. Monholland, 607 F.2d 1311, 1316 (CA10 1979) (finding in §844(i) no indication that Congress intended to include "everybody and everything"). "Judges should hesitate ... to treat statutory terms in any setting [as surplusage], and resistance should be heightened when the words describe an element of a criminal offense." Ratzlaf v. United States, 510 U.S. 135, 140-141 (1994); accord, Bailey, 516 U.S., at 145. </s> III </s> Our reading of §844(i) is in harmony with the guiding principle that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909), quoted in Jones v. United States, 526 U.S. 227, 239 (1999); see also DeBartolo, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). In Lopez, this Court invalidated the Gun-Free School Zones Act, former 18 U.S.C. §922(q) (1988 ed., Supp. V), which made it a federal crime to possess a firearm within 1,000 feet of a school. The defend- </s> ant in that case, a 12th-grade student, had been convicted for knowingly possessing a concealed handgun and bullets at his San Antonio, Texas, high school, in violation of the federal Act. Holding that the Act exceeded Congress' power to regulate commerce, the Court stressed that the area was one of traditional state concern, see 514 U.S., at 561, n.3, 567; id., at 577 (Kennedy, J., concurring), and that the legislation aimed at activity in which "neither the actors nor their conduct has a commercial character," id., at 580 (Kennedy, J., concurring); id., at 560-562 (opinion of the Court). </s> Given the concerns brought to the fore in Lopez, it is appropriate to avoid the constitutional question that would arise were we to read §844(i) to render the "traditionally local criminal conduct" in which petitioner Jones engaged "a matter for federal enforcement." United States v. Bass, 404 U.S. 336, 350 (1971). Our comprehension of §844(i) is additionally reinforced by other interpretive guides. We have instructed that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," Rewis v. United States, 401 U.S. 808, 812 (1971), and that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite," United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222 (1952). We have cautioned, as well, that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance" in the prosecution of crimes. Bass, 404 U.S., at 349. To read §844(i) as encompassing the arson of an owner-occupied private home would effect such a change, for arson is a paradigmatic common-law state crime. See generally Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L.Rev. 295 (1986). </s> IV </s> We conclude that §844(i) is not soundly read to make virtually every arson in the country a federal offense. We hold that the provision covers only property currently used in commerce or in an activity affecting commerce. The home owned and occupied by petitioner Jones's cousin was not so used--it was a dwelling place used for everyday family living. As we read §844(i), Congress left cases of this genre to the law enforcement authorities of the States. </s> Our holding that §844(i) does not cover the arson of an owner-occupied dwelling means that Jones's §844(i) conviction must be vacated. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> DEWEY J. JONES, PETITIONER v. UNITED STATES </s> on writ of certiorari to the united states court of appeals for the seventh circuit </s> [May 22, 2000] </s> Justice Stevens, with whom Justice Thomas joins, concurring. </s> Part II of the Court's opinion convincingly explains why its construction of 18 U.S.C. §844(i) better fits the text and context of the provision than the Government's expansive reading. It also seems appropriate, however, to emphasize the kinship between our well-established presumption against federal pre-emption of state law, see Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978), and our reluctance to "believe Congress intended to authorize federal intervention in local law enforcement in a marginal case such as this." United States v. Altobella, 442 F.2d 310, 316 (CA7 1971). The fact that petitioner received a sentence of 35 years in prison when the maximum penalty for the comparable state offense was only 10 years, Ind. Code §§35-43-1-1, 35-50-2-5 (1993), illustrates how a criminal law like this may effectively displace a policy choice made by the State. Even when Congress has undoubted power to pre-empt local law, we have wisely decided that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." United States v. Bass, 404 U.S. 336, 349 (1971). For this reason, I reiterate my firm belief that we should interpret narrowly federal criminal laws that overlap with state authority unless congressional intention to assert its jurisdiction is plain.*1 </s> DEWEY J. JONES, PETITIONER v. UNITED STATES </s> on writ of certiorari to the united states court of appeals for the seventh circuit </s> [May 22, 2000] </s> Justice Thomas, with whom Justice Scalia joins, concurring. </s> In joining the Court's opinion, I express no view on the question whether the federal arson statute, 18 U.S.C. §844(i) (1994 ed., Supp. IV), as there construed, is constitutional in its application to all buildings used for commercial activities. </s> FOOTNOTES Footnote 1 </s> The question on which we granted review refers solely to Jones's §844(i) conviction. See infra, at 3. We therefore do not address his §924(c) and §5861(f) convictions. </s> Footnote 2 </s> Compare United States v. Gaydos, 108 F.3d 505 (CA3 1997) (vacant, uninhabitable house formerly rented not covered by statute), United States v. Denalli, 73 F.3d 328 (CA11) (owner-occupied residence not covered), modified on other grounds, 90 F.3d 444 (1996) (per curiam), United States v. Mennuti, 639 F.2d 107 (CA2 1981) (same), with United States v. Ryan, 41 F.3d 361 (CA8 1994) (en banc) (vacant former commercial property covered), cert. denied, 514 U.S. 1082 (1995), United States v. Ramey, 24 F.3d 602 (CA4 1994) (owner-occupied residence covered), cert. denied, 514 U.S. 1103 (1995), and United States v. Stillwell, 900 F.2d 1104 (CA7) (same), cert. denied, 498 U.S. 838 (1990). </s> Footnote 3 </s> Compare United States v. Pappadopoulos, 64 F.3d 522 (CA9 1995) (application to owner-occupied residence unconstitutional), with 178 F.3d 479 (CA7 1999) (decision below), and Ramey, 24 F.3d, at 602 (application constitutional). </s> Footnote 4 </s> See Pub. L. 97-298, §2(c), 96 Stat. 1319 (amending §844(i) to insert the words "fire or" before the words "an explosive"). The House Report accompanying the 1982 legislation explained that the original measure, which was confined to damage caused by "an explosive," had resulted in problems of practical application. H.R. Rep. No. 678, 97th Cong., 2d Sess., 2 (1982). In particular, the Report noted a Circuit conflict on the question whether the measure covered use of gasoline or other flammable liquids to ignite a fire. Id., at 2, and nn. 5-6. </s> Footnote 5 </s> We noted in Russell that the original version of the bill that became §844(i) applied to destruction, by means of explosives, of property used "for business purposes." Russell, 471 U.S., at 860, n.5. After some House members indicated that they thought the provision should apply to the bombings of schools, police stations, and places of worship, the words "for business purposes" were omitted. Id., at 860-861. The House Report accompanying the final bill, we further noted in Russell, described §844(i) as "a very broad provision covering substantially all business property." Id., at 861, and n.8 (citing H.R. Rep. No. 91-1549, pp. 69-70 (1970)). </s> Footnote 6 </s> The defendants in Mennuti destroyed two buildings. One was the residence of the owner and her family, the other was a rental property. See 639 F.2d, at 108-109, n.1. The Second Circuit affirmed the District Court's dismissal of the entire indictment. Our decision in Russell v. United States, 471 U.S. 858 (1985), supersedes Mennuti with respect to the building held for rental. Regarding the family residence, we find Mennuti's reasoning persuasive. </s> Footnote 7 </s> In Ryan, Chief Judge Arnold dissented from a panel decision holding that the arson of a permanently closed fitness center fell within §844(i)'s prohibition. The panel majority considered adequate either of two interstate commerce connections: the building was owned and leased by out-of-state parties, and received natural gas from across state borders. The panel added, however, that it would not extend the decision "to property which is purely private in nature, such as a privately owned home, used solely for residential purposes." 9 F.3d, at 666-667. Sitting en banc, the Eighth Circuit affirmed the panel's judgment. See United States v. Ryan, 41 F.3d 361 (1994), cert. denied, 514 U.S. 1082 (1995). </s> Footnote 8 </s> Notably, the Court in Russell did not rest its holding on the expansive interpretation advanced by the Government both in Russell and in this case. Compare Brief for United States in Russell v. United States, O.T. 1984, No. 435, p. 15 ("Petitioner used his building on South Union Street in an activity affecting interstate commerce by heating it with gas that moved interstate."), with Russell, 471 U.S., at 862 (focusing instead on fact that "[t]he rental of real estate is unquestionably ... an activity" affecting commerce). </s> FOOTNOTES Footnote 1 </s> *See Landreth Timber Co. v. Landreth, 471 U.S. 681, 700, n. 2 (1985) (Stevens, J., dissenting); Bennett v. New Jersey, 470 U.S. 632, 654-655, n.16 (1985) (Stevens, J., dissenting); Garcia v. United States, 469 U.S. 70, 89-90 (1984) (Stevens, J., dissenting); Bell v. United States, 462 U.S. 356, 363 (1983) (Stevens, J., dissenting); McElroy v. United States, 455 U.S. 642, 675 (1982) (Stevens, J., dissenting).

United States Supreme Court OPERATING ENGINEERS v. JONES(1983) No. 81-1574 Argued: December 1, 1982Decided: April 4, 1983 </s> Respondent filed a charge with a Regional Director of the National Labor Relations Board (Board), alleging that petitioner Union (Union) had procured his discharge by a company from his position as a "supervisor" because he was not a member in good standing with the Union. Supervisors are expressly excluded from the definition of "employee" under the National Labor Relations Act. The Union's conduct allegedly violated 8(b)(1)(A) of the Act, which proscribes unions from coercing employees in the exercise of their rights under 7 to engage in concerted action, and 8(b)(1)(B), which prohibits unions from coercing employers in the selection of their representatives for the purposes of collective bargaining or the adjustment of grievances. The Regional Director refused to issue a complaint, concluding that there was insufficient evidence to establish that the Union had caused respondent's discharge or had coerced the company in the selection of its bargaining representative. Instead of appealing to the Board's General Counsel, respondent filed suit against the Union and others in a Georgia state court, alleging that the Union had interfered with his employment contract by coercing the company into breaching the contract. The trial court dismissed the complaint, concluding that the common-law tort action was pre-empted because the subject matter of the complaint was arguably within the Board's exclusive jurisdiction, but the Georgia Court of Appeals reversed the dismissal of the case against the Union. </s> Held: </s> Respondent's state-court action against the Union is pre-empted by the National Labor Relations Act. Pp. 675-684. </s> (a) If the conduct that a State seeks to regulate or to make the basis of liability is actually or arguably prohibited or protected by the Act, otherwise applicable state law and procedures are ordinarily pre-empted. However, when the conduct at issue is only a peripheral concern of the Act or touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it cannot be inferred that Congress intended to deprive the State of the power to act, the state regulation or sanction is not pre-empted. Pp. 675-676. </s> (b) Here, the Union arguably violated 8(b)(1)(A), because it is not unusual for workers in the construction industry, such as respondent, to [460 U.S. 669, 670] fluctuate between supervisory and nonsupervisory positions and, in view of the low-level supervisory position that respondent held, it was not unlikely that he would from time to time serve in a nonsupervisory position and that he might be intimidated by the Union's conduct once he again became a statutory employee. The Union's conduct also arguably violated 8(b)(1)(B), since it was at least arguable that respondent was a "supervisor" within the Act's meaning, his complaint filed with the Regional Director having indicated that he would have collective-bargaining responsibilities. It was for the Board, not the state courts, to decide whether respondent was the kind of supervisor who could invoke 8(b)(1)(B). Cf. Iron Workers v. Perko, 373 U.S. 701 . Pp. 678-680. </s> (c) Pre-emption cannot be avoided on the theory that the Regional Director concluded that the Board lacked jurisdiction to adjudicate the complaint because of respondent's supervisory status, since the Regional Director instead addressed the merits of the complaint. Nor did the Regional Director's rejection of the complaint for insufficient evidence satisfy all of the federal-law interests involved, so as to clear the way for a state cause of action. The pre-emption doctrine not only mandates substantive pre-emption by the federal law in the areas to which it applies, but also protects the exclusive jurisdiction of the Board over matters arguably within the Act's reach. Nor can pre-emption be avoided on the asserted grounds that the state cause of action and the 8(b)(1)(B) unfair labor practice charge were not sufficiently alike, Sears Roebuck & Co. v. Carpenters, 436 U.S. 180 , distinguished; or that respondent should be permitted to proceed in the state court because he could be awarded punitive damages and attorney's fees there, whereas he would be limited to backpay if his complaint had gone forward before the Board. Pp. 680-684. </s> Appeal dismissed and certiorari granted; 159 Ga. App. 693, 285 S. E. 2d 30, reversed. </s> WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which POWELL and O'CONNOR, JJ., joined, post, p. 684. </s> Laurence Gold argued the cause for appellants. With him on the briefs were Joseph Jacobs, Harris Jacobs, James T. Langford, and George Kaufmann. </s> Elinor Hadley Stillman argued the cause for the National Labor Relations Board as amicus curiae urging reversal. With her on the brief were Solicitor General Lee, Norton J. Come, and Linda Sher. [460 U.S. 669, 671] </s> Robert F. Gore argued the cause and filed a brief for appellee. </s> JUSTICE WHITE delivered the opinion of the Court. </s> This case presents the question whether a state-court action brought by one who is a "supervisor" 1 within the meaning of the National Labor Relations Act 2(11), 29 U.S.C. 152(11), for interference by a union with his contractual relationships with his employer is pre-empted by the National Labor Relations Act (NLRA or Act). </s> I </s> Respondent Robert C. Jones 2 was offered a supervisory position by the Georgia Power Co. (Company). Jones reported for work on June 12, 1978. By agreement, he took vacation time after his second day on the job and reported for work again on June 20, 1978. On this latter date he was discharged. [460 U.S. 669, 672] </s> Jones believed that the Company had been persuaded to discharge him by the union bargaining agent, Local 926 of the International Union of Operating Engineers (Union). The reason for the Union's hostility, he believed, was his decision years ago to work for a nonunion employer. On June 28, 1978, Jones filed a charge with the Regional Director of the National Labor Relations Board (Board) against the Union, alleging that the Union had "procured" his discharge, "and thereby coerced [the Company] in the selection of its supervisors and bargaining representative, because [Jones] had not been a member in good standing of said labor organization." Allegedly, this action violated 8(b)(1)(A) and (B) of the Act. 3 App. to Juris. Statement 25a. </s> In a letter dated July 19, 1978, the Regional Director said that further proceedings on respondent's charge were unwarranted and that he would not issue a complaint. 4 He explained [460 U.S. 669, 673] that there was insufficient evidence to establish that the Union had caused Jones' discharge; there was also a lack of evidence indicating that the Union had restrained or coerced the Company in the selection of its representative for purposes of collective bargaining. The Regional Director had instead come to the conclusion that Jones' discharge had been a part of changes in the Company's supervisory structure and that the Union had merely participated in discussions regarding the changes. </s> Instead of appealing to the General Counsel, 5 Jones proceeded to state court, suing both the Union and the Company. Count I of his complaint claimed that the Union had interfered with the contract between him and the Company. The allegations were simple. He pleaded that he had been a member of Local 926 from 1969 to 1974, when he resigned [460 U.S. 669, 674] from the Union. More recently, the Company had offered him the job of equipment supervisor at one of its plants, and he and the Company had entered into a contract in reliance on which he had terminated his prior employment. The crucial allegation was that petitioner Thomas D. Archer, the business agent and representative of the Union, had "maliciously and with full intent, intimidated and coerced Georgia Power Company, or caused Georgia Power Company to be intimidated and coerced, into breaching its employment contract with the Plaintiff." Respondent prayed for a judgment of $80,000 against petitioners, to be composed of $25,000 in lost wages, $50,000 in punitive damages, and $5,000 in attorney's fees, interest, and costs. Count II of his complaint sought relief against the Company and alleged that the Company had breached its employment contract. </s> The Georgia trial court dismissed the complaint, concluding that the common-law tort action had been pre-empted because the subject matter of the complaint was arguably within the exclusive jurisdiction of the Board. The court observed that there was no justification for allowing joint federal-state control over the alleged conduct, since the state interest in protecting state citizens from the alleged conduct was insignificant and the risk of interference with the Board's jurisdiction was substantial. </s> The Georgia Court of Appeals reversed the dismissal of the case against the Union. 6 159 Ga. App. 693, 285 S. E. 2d 30 (1981). Following Georgia precedent it considered to be controlling, Sheet Metal Workers International Assn. v. Carter, 133 Ga. App. 872, 212 S. E. 2d 645 (1975), and International Brotherhood of Electrical Workers v. Briscoe, 143 Ga. App. 417, 239 S. E. 2d 38 (1977), the State Court of Appeals held the cause of action not pre-empted because Georgia had a deep and abiding interest in protecting its citizens' contractual rights and because the cause of action, which sounded in [460 U.S. 669, 675] tort, was so unrelated to the concerns of the federal labor laws that it would not interfere with the administration of those laws. As an additional reason for not finding pre-emption, the court stated that the Union's acts were not even arguably within the ambit of 7 or 8 of the NLRA, thus purporting to distinguish Iron Workers v. Perko, 373 U.S. 701 (1963). The Georgia Supreme Court denied review, and petitioners appealed. </s> We postponed to the hearing on the merits consideration of our appellate jurisdiction. 456 U.S. 987 (1982). Petitioners now acknowledge that this is not a mandatory appeal. 7 We agree, but, treating the papers as a petition for writ of certiorari, we grant the petition. Concluding that the Georgia Court of Appeals erred, we reverse. </s> II </s> The issue before us "is a variant of a familiar theme." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 239 (1959). The Court has often been asked to determine whether particular state causes of action or regulations may coexist with the comprehensive amalgam of substantive law and regulatory arrangements that Congress set up in the [460 U.S. 669, 676] NLRA to govern labor-management relations affecting interstate commerce. E. g., Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978); Farmer v. Carpenters, 430 U.S. 290 (1977); Linn v. Plant Guard Workers, 383 U.S. 53 (1966); Garmon, supra. Our approach to the pre-emption issue has thus been stated and restated. First, we determine whether the conduct that the State seeks to regulate or to make the basis of liability is actually or arguably protected or prohibited by the NLRA. Garmon, supra, at 245; see Sears, supra, at 187-190. Although the "Garmon guidelines [are not to be applied] in a literal, mechanical fashion," Sears, supra, at 188, if the conduct at issue is arguably prohibited or protected otherwise applicable state law and procedures are ordinarily pre-empted. Farmer, supra, at 296. When, however, the conduct at issue is only a peripheral concern of the Act or touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not be inferred that Congress intended to deprive the State of the power to act, we refuse to invalidate state regulation or sanction of the conduct. Garmon, supra, at 243-244. The question of whether regulation should be allowed because of the deeply rooted nature of the local interest involves a sensitive balancing of any harm to the regulatory scheme established by Congress, either in terms of negating the Board's exclusive jurisdiction or in terms of conflicting substantive rules, and the importance of the asserted cause of action to the State as a protection to its citizens. See Sears, supra, at 188-189; Farmer, supra, at 297. 8 </s> [460 U.S. 669, 677] </s> Not only is this case a variant of a familiar theme, but we have heard this same tune before. In Iron Workers v. Perko, supra, the Court considered whether a common-law tort action for interference with a contract of employment was pre-empted by the NLRA. Perko, a member of the Iron Workers' Union, was employed at times as a superintendent and at other times as a foreman. While acting as a superintendent, he violated a Union rule, and his membership was suspended in consequence. Union representatives then told Perko's employer that because of Perko's transgression Union members would no longer take orders from him. Some weeks thereafter he was discharged on account of his dispute with the Union. </s> We concluded that Perko's common-law cause of action was pre-empted because it was founded on conduct that for several reasons was arguably within the ambit of 7 or 8. First, Perko was discharged both as a superintendent and a foreman. Even conceding that the position of superintendent was supervisory and beyond the reach of the Act, the foreman's position was arguably nonsupervisory and covered by the Act. Hence, Perko's discharge arguably violated the proscription of 8(b)(1)(A) against a union interfering with the protected rights of employees and that of 8(b)(2) against causing an employer to discriminate against an employee contrary to 8(a)(3). Second, the Union arguably violated 8(b)(1)(A), since causing the discharge of a supervisor might coerce employees, who would fear meeting their supervisor's fate, into forgoing their 7 rights to engage in concerted action. Third, the Union's conduct might also have violated 8(b)(1)(B), which prohibits unions from restraining or coercing "an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." Perko, we concluded, may well have had sufficient grievance-handling responsibilities to come within the realm of supervisors whose selection the Union could not seek to dictate. [460 U.S. 669, 678] </s> Since Jones, unlike Perko, had a job only as a supervisor and not also as an employee, the Union does not rely on the first reason given in Perko for finding the challenged conduct arguably subject to the proscriptions of the Act. It is urged that the other two reasons given in Perko for such a holding are fully applicable here. The Union adds that Jones' cause of action threatens to punish the workers' arguably protected conduct in protesting, noncoercively, the selection of people for supervisory positions whether or not they entail collective-bargaining responsibilities. For these reasons, the Union submits that Jones' state-court action is pre-empted. We agree. </s> III </s> In Perko, the Court thought the Board could reasonably construe 8(b)(1)(A) to prohibit the discharge of a supervisor for failure to observe Union rules because the discharge would inevitably tend to coerce nonsupervisory employees to submit to Union regimentation and hence coerce them in the exercise of their 7 rights. In that event, the Board could also order the Union to reimburse the supervisor for his lost wages. The Board's subsequent holdings apply a variant of this approach in the construction industry, where it is not unusual for workers to fluctuate, as Perko did, 373 U.S., at 706 , between supervisory and nonsupervisory positions. In Local Union No. 725, Plumbers, 225 N. L. R. B. 138 (1976), enf'd, 572 F.2d 550 (CA5 1978), the Union caused the employer to breach a promise to hire the charging party as a supervisor. For two reasons, the Board held that the Union had violated 8(b)(1)(A) and was liable to the charging party for backpay. First, it was found that certain employees depending on Union job referrals had learned of the Union's conduct and were thereby intimidated in the exercise of their rights under the Act. Second, the Board reasoned that "because workers in the construction industry frequently cycle in and out of supervisory jobs, discrimination against [an individual] in his attempt to become a supervisor would carry [460 U.S. 669, 679] over to intimidate him once he again became a statutory employee." See 572 F.2d, at 552. The Board's "fluctuating status" approach is arguably applicable to this case. Jones was employed in the construction industry, and, in view of the low-level supervisory position he held, it was not unlikely that he would from time to time serve in a nonsupervisory position. 9 It also is as clear here as it was in Perko that the Union's conduct was arguably prohibited by 8(b)(1)(B), which forbids a union to coerce an employer in the choice of his bargaining representative. In Perko, there was some doubt whether Perko was a supervisor within the meaning of the Act; here there is no doubt in that respect. Of course, not every supervisor is a "representative `for the purposes of collective bargaining or the adjustment of grievances'" within the meaning of 8(b)(1)(B), Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 811 , n. 21 (1974). But in this case, Jones was to occupy the position of equipment supervisor; it is enough if in this position he would be authorized or expected to deal with grievances arising under the collective-bargaining agreement, American Broadcasting Cos. v. Writers Guild, 437 U.S. 411, 427 , n. 25 (1978); 10 and Jones' complaint [460 U.S. 669, 680] filed with the Regional Director indicated that he would have collective-bargaining responsibilities. It is at least arguable that this was the case; and it was for the Board, not the state courts, to decide whether Jones was the kind of a supervisor who could invoke 8(b)(1)(B). We thus agree with the Union and the Board that the Union, if it was responsible for Jones' discharge, arguably coerced the Company in the choice of its collective-bargaining representative. </s> IV </s> For several reasons, none of them sound in our view, the Georgia Court of Appeals thought that the Act did not pre-empt the cause of action that Jones submitted to the state courts. First, the Court of Appeals may have interpreted the Regional Director's letter as indicating that the Board lacked jurisdiction to adjudicate Jones' complaint because of Jones' supervisory status. That is plainly not the case, for the Regional Director's statement did not decline jurisdiction but addressed the merits of the complaint. See generally Garmon, 359 U.S., at 245 -246. </s> Second, the Court of Appeals believed that the Regional Director's rejection of the complaint for insufficient evidence of a violation satisfied all of the interests of the federal law and cleared the way for a state cause of action. If this position was grounded on the notion that supervisors do not have a cause of action in any circumstances, it is contrary to Board cases and to Perko. If, as seems more likely, the argument is that the complainant adequately submitted his dispute to the Board, it is untenable. Jones did not exhaust his administrative remedies, for he did not appeal to the General Counsel. Beyond that, the Garmon pre-emption doctrine not only mandates the substantive pre-emption by the federal labor law in the areas to which it applies, but also protects the exclusive jurisdiction of the Board over matters arguably within the reach of the Act. Even if Jones had satisfied ordinary primary-jurisdiction requirements, which he did not, he [460 U.S. 669, 681] would not have taken adequate account of the decision of Congress to vest in one administrative agency nationwide jurisdiction to adjudicate controversies within the Act's purview. Matters within the exclusive jurisdiction of the Board are normally for it, not a state court, to decide. This implements the congressional desire to achieve uniform as well as effective enforcement of the national labor policy. </s> In addition to relying on the reasoning of the Georgia Court of Appeals, Jones argues that there should be no pre-emption because the state cause of action and the unfair labor practice charge are not sufficiently alike. Jones relies on Sears, Roebuck & Co., where we said that "the critical inquiry" in deciding whether a state claim is pre-empted because the challenged conduct is arguably prohibited by the federal labor laws is "whether the controversy presented to the state court is identical to . . . or different from . . . that which could have been, but was not, presented to the Labor Board." 436 U.S., at 197 . Jones asserts that a 8(b)(1)(B) unfair labor practice claim is made out only by proving coercion of an employer in the selection of its bargaining representative, whereas, he explains, to make out his state cause of action it need only be shown that the Union caused, either coercively or noncoercively, the employer's selection of a supervisor. Because federal law does not forbid noncoerced, but union-caused discharges, it is said that the state cause of action is as distinct from the federal unfair labor practice claim as were the causes of action this Court found not pre-empted in Linn v. Plant Guard Workers, 383 U.S. 53 (1966); Farmer v. Carpenters, 430 U.S. 290 (1977); and Sears, Roebuck & Co. v. Carpenters, supra. 11 </s> [460 U.S. 669, 682] </s> We reject this argument. First, the argument concedes that the state cause of action is pre-empted to the extent that it covers coercive influence on the employer; and we note that Jones' complaint in the state court alleged that the Union agent had "intimidated and coerced" Georgia Power into breaching its contract with Jones. Jones thus sought to prove a coerced discharge and breach of contract, the very claim that is concededly pre-empted. Second, permitting state causes of action for noncoercive interference with contractual relationships to go forward in the state courts would continually require the state court to decide in the first instance whether the Union's conduct was coercive, and hence beyond its power to sanction, or noncoercive, and thus the proper subject of a state suit. Decisions on such questions of federal labor law should be resolved by the Board. </s> Third, even if the Georgia law reaches noncoercive interference with contractual relationships, a fundamental part of such a claim is that the Union actually caused the discharge and hence was responsible for the employer's breach of contract. Of course, this same crucial element must be proved to make out a 8(b)(1)(B) case: the discharge must be shown to be the result of Union influence. Even on Jones' view of the elements of his state-law cause of action, the federal and state claims are thus the same in a fundamental respect, and here the Regional Director had concluded that the Union was not at fault. </s> This was not the case in Sears. There the state-court action was for trespass. It challenged only the location of the Union picketing. The unfair labor practice charge, however, would have focused on whether the picketing had recognitional or work reassignment objectives, issues "completely [460 U.S. 669, 683] unrelated to the simple question whether a trespass had occurred." 436 U.S., at 198 . Permitting the trespass action to go forward accordingly created "no realistic risk of interference with the Labor Board's primary jurisdiction to enforce the statutory prohibition against unfair labor practices." Ibid. The same cannot be said here. The Regional Director concluded that the Union had in no way been responsible for Jones' discharge. That same issue of causation would have been presented for decision had Jones' case come before the Board, just as the issue would recurringly be at the core of 8(b)(1)(B) cases. Despite the Regional Director's determination, and the Board's undoubted jurisdiction to decide the issue had a complaint issued, Jones sought to relitigate the question in the state courts. The risk of interference with the Board's jurisdiction is thus obvious and substantial. </s> We thus cannot agree that Jones' efforts to recover damages from the Union for interference with his contractual relationships with his employer was of only peripheral concern to the federal labor policy. Our decisions in Perko and its companion case, Plumbers v. Borden, 373 U.S. 690 (1963), refute Jones' submission. They also foreclose any claim that Jones' action against the Union for interference with his job is so deeply rooted in local law that Georgia's interest in enforcing that law overrides the interference with the federal labor law that prosecution of the state action would entail. </s> Beyond this is the proposition, pressed by the Union, that although an employer may not be coerced in its choice of a collective-bargaining agent employees have the protected right to exert noncoercive influence on the choice of low-level supervisors. </s> "[C]ourts have generally held over Board protest that employees' strikes over changes in even low level supervisory personnel are not protected. See Henning & Cheadle, Inc. v. NLRB, [522 F.2d 1050, 1055 (CA7 [460 U.S. 669, 684] 1975)]; American Art Clay Co. v. NLRB, [328 F.2d 88, 90-91 (CA7 1964)]; Dobbs Houses, Inc. v. NLRB, [325 F.2d 531, 538-539 (CA5 1963)]. On the other hand, courts have found protected the writing of letters expressing opposition, NLRB v. Phoenix Mutual Life Insurance Co., 167 F.2d 983 (7th Cir.) cert. denied, 335 U.S. 845 . . . (1948), or the simple voicing of complaints, NLRB v. Guernsey-Muskingum Elec. Coop., Inc., 285 F.2d 8 (6th Cir. 1960). By thus examining both the substantive interest and the means of advancing it, courts have balanced more finely the competing interests involved. The result is a general absence of per se rules." Abilities and Goodwill, Inc. v. NLRB, 612 F.2d 6, 9 (CA1 1979). </s> Thus, had Jones' complaint come before the Board, his complaint would arguably have been rejected on the ground that the Union's conduct in this case was protected activity. </s> Finally, the argument is made that Jones should be permitted to go forward in the state court because he could be awarded punitive damages and attorney's fees, whereas he would be limited to backpay if his complaint had gone forward before the Board. But such a claim was squarely rejected in San Diego Building Trades Council v. Garmon, 359 U.S., at 246 -247. </s> The judgment below is accordingly </s> Reversed. </s> Footnotes [Footnote 1 A supervisor is defined as follows: </s> "(11) The term `supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 2(11), 61 Stat. 138. </s> Supervisors are expressly excluded from the definition of employee in 2(3), 29 U.S.C. 152(3). Only "employees" are given rights under 7, 29 U.S.C. 157, which provides in relevant part: </s> "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3)." 61 Stat. 140. </s> [Footnote 2 We refer to Jones as respondent because, as we shall explain, see n. 7, infra, we review this case on writ of certiorari rather than on appeal. </s> [Footnote 3 Sections 8(a) and 8(b) define certain employer and union practices as unfair labor practices. As pertinent to this case, 8(b), 61 Stat. 141, 29 U.S.C. 158(b), provides: </s> "It shall be an unfair labor practice for a labor organization or its agents - </s> "(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 . . . or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances; </s> "(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section . . ." </s> Section 8(a)(3), 61 Stat. 140, as amended, 29 U.S.C. 158(a)(3), makes it an unfair labor practice for an employer - </s> "(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . ." </s> [Footnote 4 The following is the text of the letter: </s> July 19, 1978 Robert C. Jones 2954 Orchard Lane, S. E. Atlanta, Georgia 30354 Re: International Union of Operating Engineers, Local 926 Case 10-CB-2905 [460 U.S. 669, 673] </s> Dear Mr. Jones: </s> The above-captioned case charging a violation under Section 8 of the National Labor Relations Act, as amended, has been carefully investigated and considered. </s> As a result of the investigation, it does not appear that further proceedings on the charge are warranted. The Region concluded that the evidence was insufficient to establish that the Union caused your discharge or that it restrained or coerced the Employer in the selection of its representative for the purposes of collective bargaining. Rather, it appears that the Employer implemented certain changes in its supervisory structure which included your removal from the project. While the Union did participate in discussions regarding the changes, there was no evidence that it engaged in any unlawful conduct regarding your status as a supervisor. I am, therefore, refusing to issue complaint in this matter. </s> Form NLRB-4938, Procedure for Filing an Appeal, is attached. The appeal period expires at the close of business on August 1, 1978. </s> Very truly yours, /s/ Curtis L. Mack Regional Director </s> App. to Juris. Statement 26a. </s> [Footnote 5 Appeal to the General Counsel is provided by 29 CFR 102.19 (1982). Respondent said he "didn't see much point" in taking such an appeal. App. 105 (deposition of Robert C. Jones, Feb. 20, 1979). </s> [Footnote 6 The court affirmed the dismissal of the cause of action against the employer. The merits of that decision are not before us. </s> [Footnote 7 Petitioners initially argued in their jurisdictional statement that they were entitled to a mandatory appeal. They believed that this case fell within 28 U.S.C. 1257(2), which allows parties an appeal as of right when a state statute is challenged in state court as being repugnant to the laws of the United States and the state court upholds the validity of the statute. The Georgia right-to-work law, Ga. Code Ann. 54-905 (1981), recodified at Ga. Code Ann. 34-6-24 (1982), was identified as the statute whose validity had been wrongly upheld. Petitioners now acknowledge that the Georgia Court of Appeals did not consider the question of whether the NLRA prohibited Jones' reliance on the State's right-to-work law; the court held only that the Georgia common-law tort action for interference with contractual relations was not pre-empted by the national labor laws. Petitioners' current perception appears correct. Because a common-law cause of action cannot be said to be a "statute" for purposes of 1257(2), this case is not within our 1257(2) appellate jurisdiction. </s> [Footnote 8 The NLRA has been held to pre-empt state law and state causes of action relating to conduct that is neither protected nor prohibited, where it is determined that Congress intended the conduct to be unregulated and left to the free play of economic forces. See Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 140 (1976); Teamsters v. Morton, 377 U.S. 252, 260 (1964). This branch of the pre-emption doctrine is not at issue in this case. </s> [Footnote 9 Since the Board's decision in Local 725, it has become evident that the Board will not adhere to the general proposition voiced in Perko that the discharge of a supervisor for failure to abide by union rules is alone enough to discourage employees from exercising their 7 rights. Parker-Robb Chevrolet, Inc., 262 N. L. R. B. 402, 404 (1982). The Board asserts, however, that the holding in Local 725, reflecting the peculiarities of the construction industry, survives its later decision. </s> [Footnote 10 Recognizing that an employer so frequently draws his collective-bargaining representative from the existing pool of supervisors, the Board has held that the Union violates 8(b)(1)(B) by coercing the choice of a supervisor even without proving that the supervisor in question actually has collective-bargaining authority. The Court of Appeals for the Second Circuit has disagreed with the Board in this respect. NLRB v. Rochester Musicians Assn. Local 66, 514 F.2d 988, 992 (1975). The Court of Appeals for the Third Circuit, on the other hand, has not entirely rejected the Board's position. Newspaper Guild, Erie Newspaper Guild, Local 187 v. NLRB, 489 F.2d 416, 420-422 (1973). </s> [Footnote 11 In Linn v. Plant Guard Workers, we held that an action for a malicious and injurious libel in the course of a labor dispute, although an unfair practice and prohibited by the Act, was not pre-empted since it was unprotected conduct and since remedying injury to reputation was of only slight concern to the national labor policy and was a matter deeply rooted in state law. For similar reasons, in Farmer v. Carpenters we held that insofar as [460 U.S. 669, 682] the state-court suit rested on claims of discriminatory hiring hall referrals and breach of contract, it was pre-empted, but that it was not pre-empted and could go forward insofar as it alleged the outrageous and intentional infliction of emotional distress. We deal with Sears, Roebuck & Co. in the text, infra, this page and 683. </s> JUSTICE REHNQUIST, with whom JUSTICE POWELL and JUSTICE O'CONNOR join, dissenting. </s> I disagree with the Court's conclusion that the National Labor Relations Act pre-empts the state-law claims in this case. On balance I think the result reached by the Court is wrong, though the question is a close one; more importantly, I cannot accept the Court's analysis of our recent decision in Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978). [460 U.S. 669, 685] </s> Jones filed suit in the Georgia courts alleging that an agent of Local 926 (Union) had "maliciously and with full intent intimidated and coerced Georgia Power . . ., or caused Georgia Power . . . to be intimidated and coerced, into breaching its employment contract with plaintiff." In addition, Jones alleged, in an amendment to his complaint, App. to Juris. Statement 18a-19a, 2a, that the Union and Georgia Power Co. (Company) jointly conspired to interfere with his contractual relations. The Court apparently acknowledges, ante, at 682, and I agree, that Jones' complaint fairly may be read as stating two claims under Georgia tort law - a claim that the Union coerced the Company into firing Jones and a claim that the Union noncoercively caused his discharge. 1 The trial court dismissed Jones' complaint, reasoning that the tort doctrines on which it rested were pre-empted. The Georgia Court of Appeals reversed, ordering reinstatement of Jones' complaint. 159 Ga. App. 693, 285 S. E. 2d 30 (1981). </s> The Court recognizes that, if the conduct of the Union on which Jones' complaint was predicated was "arguably prohibited" by the Act, then the proper standard for pre-emption analysis is found in Sears, Roebuck & Co. v. Carpenters, supra: is "the controversy presented to the state court . . . identical to . . . or different from" the federal labor law claim. Id., at 197 (emphasis added). 2 Other passages in [460 U.S. 669, 686] our Sears opinion elaborate upon this rule, requiring, for example, that a federal claim must be "the same as the controversy presented to the state court." Id., at 198; see also id., at 196-197. </s> The Court offers two basic arguments as to why Jones' claim of noncoercive interference with contractual relations and the federal labor law claims in this case were identical. 3 In doing so, it interprets the "identical controversies" standard of Sears in a new and unjustified manner. The Court first reasons that "permitting state causes of action for noncoercive interference with contractual relationships to go forward in the state courts would continually require the state court to decide in the first instance whether the Union's conduct was coercive, and hence beyond its power to sanction, or [460 U.S. 669, 687] noncoercive, and thus the proper subject of a state suit. Decisions on such questions of federal labor law should be resolved by the Board." Ante, at 682. </s> This argument rests on a basic misunderstanding of our prior decisions. In stating the "identical controversies" standard in Sears, we said that a claim brought in state court is unpre-empted unless "the controversy presented to the state court is identical to . . . that which could have been, but was not, presented to the Labor Board." 436 U.S., at 197 (emphasis added). Plainly, Sears envisioned that state courts would decide in the first instance whether a particular claim is pre-empted under the "identical" controversy standard. Likewise, Farmer v. Carpenters, 430 U.S. 290 (1977) - relied upon in Sears' formulation of the "identical" standard, 436 U.S., at 197 - indicated that state courts may, and in fact must, sort out pre-empted from nonpre-empted portions of a complaint, even when no action before the Board has been taken. See 430 U.S., at 304 -305. The Farmer and Sears models are analogous to the situation presented in this case. Just as state courts may distinguish the abusive manner of discrimination from discrimination itself, in cases modeled on Farmer, supra, at 305, and the pure trespass aspects of picketing from the objectives of the same picketing in Sears cases, they could distinguish claims of coercive interference from those of noncoercive interference in cases like this one. As Farmer and Sears hold, state courts are competent to make such judgments without interfering with federal labor law policy. In short, while it is correct that the Board, and not state courts, is charged with deciding national labor policy, it is equally clear that no such exclusive jurisdiction is conferred on the Board with respect to questions of pre-emption. 4 </s> [460 U.S. 669, 688] </s> The second argument relied on by the Court is that "a fundamental part of . . . a [noncoercive interference with contractual relations] claim is that the Union actually caused the discharge . . . . [T]his same crucial element must be proved to make out a 8(b)(1)(B) case: the discharge must be shown to be the result of Union influence. . . . [T]he federal and state claims are thus the same in a fundamental respect . . . ." Ante, at 682. </s> This view amounts to a substantial reformulation of the Sears requirement that state and federal controversies be identical before a claim based on arguably prohibited conduct is pre-empted. On its face the Court's definition of identical is dubious: two items or concepts are not ordinarily thought to be identical merely because they share a common element, or, in the Court's words, because they are "the same in a fundamental respect," ante, at 682 (emphasis added). Moreover, Sears supports no such definition of identical. Sears illustrated the standard by reference to our decisions in Farmer v. Carpenters, supra, which was given as an example of "nonidentical" controversies, and Garner v. Teamsters, 346 U.S. 485 (1953), representing controversies that are "identical." See Sears, Roebuck & Co. v. Carpenters, 436 U.S., at 197 . Given the reference, it is worth examining Farmer and Garner in somewhat greater detail. </s> In Farmer, one Richard Hill belonged to the local of a national union, which operated a hiring hall. Hill was apparently subjected to discrimination in job referrals from the hall and to a campaign of personal harassment. He filed suit in [460 U.S. 669, 689] state court claiming, first, that the local had discriminated against him, and, second, that it had intentionally engaged in conduct causing him emotional distress. We observed that "these allegations of tortious conduct might form the basis for unfair labor practice charges before the Board," Farmer v. Carpenters, 430 U.S., at 302 , and that Hill's tort claims were intertwined with "federally prohibited discrimination," hence creating "a potential for interference with the federal scheme of regulation." Id., at 304. </s> Despite this inevitable overlap between state and federal claims, we held that Hill's claim of intentional infliction of emotional distress was not pre-empted. We relied on the fact that the state and federal claims - despite sharing related factual bases - would have had different "focus[es]." Ibid. Resolution of the state claim would turn on the abusiveness of the defendant's conduct, while the federal claim turned on whether "Union officials discriminated . . . against [Hill]." Ibid. Because the state claim required "something more" than the federal claim, id., at 305, we concluded in Sears that the two claims were not identical. 5 </s> The Court's reformulation of the "identical" controversies standard of Sears - claims are identical if they share an important [460 U.S. 669, 690] factual element - is inconsistent with both Sears and Farmer. In Sears the federal and state claims involved several common, fundamental factual questions - whether any picketing had occurred; if so, where; and whether the property owner consented to it or not. These basic factual determinations, which the state courts and Board might resolve differently, would be critical to deciding both unfair labor practice claims and state trespass claims. Likewise, in cases following the Farmer model, state courts may make credibility determinations regarding whether any discrimination occurred, and if so, whether it did so in a manner supporting a claim for intentional infliction of emotional distress. The same factual issues would be involved in deciding an unfair labor practice charge under 8 of the Act. Our decisions in Farmer and Sears thus make clear that the mere risk of differing factual determinations by the Board and state courts is insufficient to require pre-emption. Accordingly, the Court's reliance on the fact that the state and federal controversies at issue here are the same in one respect is misplaced. Instead, Sears and Farmer demand a more searching inquiry into the relationship between state and federal controversies. </s> While recognizing that the question is not free from doubt, I would conclude that the state and federal controversies at issue here are not identical, and, therefore, that Jones' claims are not pre-empted. The evident purpose of 8(b)(1)(A) is to safeguard employees in their right, secured by 7 of the Act, to join or refrain from joining concerted actions, see NLRB v. Boeing Co., 412 U.S. 67, 71 (1973). The Board's most recent discussion of the ability of a supervisor to assert a claim under 8(a)(1) states: </s> "The discharge of supervisors is unlawful when it interferes with the right of employees to exercise their rights under Section 7 of the Act, as when they give testimony adverse to their employers' interest or when they refuse to commit unfair labor practices. The discharge of supervisors [460 U.S. 669, 691] as a result of their participation in union or concerted activity - either by themselves or when allied with rank-and-file employees - is not unlawful for the simple reason that employees, but not supervisors, have rights protected by the Act." Parker-Robb Chevrolet, Inc., 262 N. L. R. B. 402, 404 (1982). </s> In order for a supervisor, such as Jones, to make a claim under 8(b)(1)(A), therefore, he must show not only that his contractual relations were interfered with, but that because of this, the various rights guaranteed by 7 of the Act to other persons - actual employees - were interfered with. This "entail[s] relatively complex factual and legal determinations" - such as what the rights of those employees are, how they were interfered with by action directed at Jones, and so forth - "completely unrelated to the simple question" whether Jones can show that the Union caused him to lose his job, see Sears, Roebuck & Co. v. Carpenters, 436 U.S., at 198 . Because of these different factual issues, which reveal basically different focuses of policy, I do not think that Jones' state-law claims are pre-empted by 8(b)(1)(A). 6 </s> In order to state a claim under 8(b)(1)(B), a supervisor must show coercion of his employer in the choice of bargaining representatives. The provision "reflect[s] a clearly focused congressional concern with the protection of employers [460 U.S. 669, 692] in the selection of representatives to engage in two particular and explicitly stated activities." Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 803 (1974) (emphasis added). "Congress was exclusively concerned with union attempts to dictate to employers who would represent them in collective bargaining and grievance adjustment." Ibid. (emphasis added). In contrast, in order to make out a claim of intentional interference with contractual relations, the question whether the plaintiff was to act as a bargaining representative, or any other particular kind of employee, is entirely irrelevant. Likewise, the question whether the employer - with whose interests 8(b)(1)(B) of the Act is "exclusively concerned" - is harmed by interference with an employee's contractual relationship is irrelevant to the state cause of action. As in Sears, the state-court action will focus on a far simpler and neater set of facts than would an action before the Board. 7 Because of these differences between the controversies that the Board would decide and those that state courts would decide, I am persuaded that Jones' state claims were not pre-empted. 8 </s> [Footnote 1 The Georgia Court of Appeals also took this view of Jones' state-law complaint: "A ruling that the union was found not to have `coerced' an employer in the selection of the employer's representative under the Act does not preclude this suit based on malicious interference with an employment contract." 159 Ga. App. 693, 697, 285 S. E. 2d 30, 33 (1981). </s> [Footnote 2 The Court, while observing that the decision in Iron Workers v. Perko, 373 U.S. 701 (1963), involved a factual situation very similar to that in this case, also recognizes that Perko's pre-emption analysis is no longer dispositive. In Perko, the mere fact that a state claim was based upon arguably prohibited conduct dictated the conclusion that the state claim was pre-empted. Id., at 708 ("It is enough to hold, as we do, that it is plain on a number of scores that the subject matter of this lawsuit `arguably' comes within the Board's jurisdiction to deal with unfair labor [460 U.S. 669, 686] practices"). This type of rigid interpretation of San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), does not survive our more recent decisions in Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978); Farmer v. Carpenters, 430 U.S. 290 (1977); Linn v. Plant Guard Workers, 383 U.S. 53 (1966). As one commentator has remarked, "the Garmon test can now be described only by reference to its exceptions." Bryson, A Matter of Wooden Logic: Labor Law Preemption and Individual Rights, 51 Texas L. Rev. 1037, 1041 (1973). </s> [Footnote 3 The Court also reasons that Jones "concedes that [his] state cause of action is pre-empted to the extent that it covers coercive influence on the employer; and we note that Jones' complaint in the state court alleged that the Union agent had `intimidated and coerced' Georgia Power into breaching its contract with Jones. Jones thus sought to prove a coerced discharge and breach of contract, the very claim that is concededly pre-empted." Ante, at 682. This argument, of course, applies only to that portion of Jones' complaint that is based on coercive conduct, not on noncoercive conduct, see n. 1, supra, and accompanying text. Even as to coercive conduct, see infra, at 688-692, the argument is unpersuasive: it rests on the assumption that Jones' argument implicitly concedes that his coercive interference claim is identical to the controversy that the Board would resolve under 8(b)(1)(A) and (B). I do not find any indication in respondent's brief of such a concession, and for the reasons given infra, at 688-692, I believe that Jones' coercive interference claim, like his noncoercive interference claim, was sufficiently distinguishable from the unfair labor practice charges at issue to avoid pre-emption. </s> [Footnote 4 A state-law claim for intentional interference with contractual relations is as deeply rooted in and important to local concerns as the claims involved in Farmer and Sears. In Farmer v. Carpenters, supra, at 302-303, we noted that while the tort of intentional infliction of emotional [460 U.S. 669, 688] distress was of comparatively recent origins, a State nonetheless "has a substantial interest" in protecting "the health and well-being of its citizens." Georgia has long sought to protect the right of its citizens "to earn a livelihood, and to seek redress against anyone who wrongfully causes him to be discharged from employment." Wiley v. Georgia Power Co., 134 Ga. App. 187, 190, 213 S. E. 2d 550, 553 (1975); Southern R. Co. v. Chambers, 126 Ga. 404, 55 S. E. 37 (1906). There can be no doubt that safeguarding the integrity of contractual relations is an interest of paramount importance in an economy such as ours. </s> [Footnote 5 In contrast, Garner v. Teamsters involved truly indistinguishable state and federal claims. The state statute at issue, titled the "Pennsylvania Labor Relations Act," prohibited certain types of union coercion in "language almost identical to" the NLRA. 346 U.S., at 488 (emphasis added). (In Sears, we noted that laws expressly governing labor relations are "more likely to involve the accommodation [of employee and employer interests] which Congress reserved to the Board." 436 U.S., at 198 , n. 27.) Likewise, the subject of the state and federal suits in Garner was labeled by the Court as "the same controversy," 346 U.S., at 489 (emphasis added), and the Pennsylvania Supreme Court believed that the two suits involved "`correction of the identical grievance.'" Id., at 486, quoting Garner v. Teamsters, 373 Pa. 19, 28, 94 A. 2d 893, 898 (1953) (emphasis added). Garner, then, offers no support for the notion that claims may be "identical" for the purposes of Sears merely because they share the requirement of proof of certain facts; instead, our reliance upon the case in Sears stands only for the principle that identical really means identical. </s> [Footnote 6 The policies effectuated by 8(b)(1)(A) and the state tort sanction against intentional interference with contractual relations are entirely different. The former seeks to protect employees' right to "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, . . . to refrain from any or all of such activities. . . ." 29 U.S.C. 157. The latter, however, is entirely unconcerned with these employee rights to concerted action; the state law instead seeks to protect a form of property - one's contractual relations with another. Cf. Nottingham v. Wrigley, 221 Ga. 386, 388, 144 S. E. 2d 749, 751 (1965). This concern with property rights is not unlike the state claim in Sears, which involved a state-law trespass action. </s> [Footnote 7 Insofar as Jones' claim for noncoercive interference with contractual relations is concerned, the differences between the state and federal controversies would be even more marked. The controversy before the Board would involve difficult issues of coercion, while that in the state courts would focus merely on causation. </s> [Footnote 8 I do not address the question, not faced by the Court, whether the proper disposition of the case is dismissal for want of a final judgment. </s> [460 U.S. 669, 693]

United States Supreme Court MELENDEZ-DIAZ v. MASSACHUSETTS(2009) No. 07-591 Argued: November 10, 2008Decided: June 25, 2009 </s> At petitioner's state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted. Petitioner objected, asserting that Crawford v. Washington, 541 U.S. 36, required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. The Massachusetts Appeals Court affirmed, rejecting petitioner's claim that the certificates' admission violated the Sixth Amendment. Held:The admission of the certificates violated petitioner's Sixth Amendment right to confront the witnesses against him. Pp.3-23. (a) Under Crawford, a witness's testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. 541 U.S., at 54. The certificates here are affidavits, which fall within the "core class of testimonial statements" covered by the Confrontation Clause, id., at 51. They asserted that the substance found in petitioner's possession was, as the prosecution claimed, cocaine of a certain weight--the precise testimony the analysts would be expected to provide if called at trial. Not only were the certificates made, as Crawford required for testimonial statements, "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," id., at 52, but under the relevant Massachusetts law their sole purpose was to provide prima facie evidence of the substance's composition, quality, and net weight. Petitioner was entitled to "be confronted with" the persons giving this testimony at trial. Id., at 54. Pp.3-5. </s> (b)The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent's claim that the analysts are not subject to confrontation because they are not "accusatory" witnesses finds no support in the Sixth Amendment's text or in this Court's case law. The affiants' testimonial statements were not "nearly contemporaneous" with their observations, nor, if they had been, would that fact alter the statements' testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should not be subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, 448 U.S. 56, 66, which held that evidence with "particularized guarantees of trustworthiness" was admissible without confrontation. Petitioner's power to subpoena the analysts is no substitute for the right of confrontation. Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution's task burdensome. In any event, the practice in many States already accords with today's decision, and the serious disruption predicted by respondent and the dissent has not materialized. Pp.5-23. 69 Mass. App. 1114, 870 N.E. 2d 676, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. Thomas, J., filed a concurring opinion. Kennedy, J., filed a dissenting opinion, in which Roberts, C.J., and Breyer and Alito, JJ., joined. </s> LUIS E. MELENDEZ-DIAZ, PETITIONER v.MASSACHUSETTS on writ of certiorari to the appeals court of massachusetts [June 25, 2009] </s> Justice Scalia delivered the opinion of the Court. </s> The Massachusetts courts in this case admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. The question presented is whether those affidavits are "testimonial," rendering the affiants "witnesses" subject to the defendant's right of confrontation under the Sixth Amendment. I </s> In 2001, Boston police officers received a tip that a Kmart employee, Thomas Wright, was engaging in suspicious activity. The informant reported that Wright repeatedly received phone calls at work, after each of which he would be picked up in front of the store by a blue sedan, and would return to the store a short time later. The police set up surveillance in the Kmart parking lot and witnessed this precise sequence of events. When Wright got out of the car upon his return, one of the officers detained and searched him, finding four clear white plastic bags containing a substance resembling cocaine. The officer then signaled other officers on the scene to arrest the two men in the car--one of whom was petitioner Luis Melendez-Diaz. The officers placed all three men in a police cruiser. During the short drive to the police station, the officers observed their passengers fidgeting and making furtive movements in the back of the car. After depositing the men at the station, they searched the police cruiser and found a plastic bag containing 19 smaller plastic bags hidden in the partition between the front and back seats. They submitted the seized evidence to a state laboratory required by law to conduct chemical analysis upon police request. Mass. Gen. Laws, ch. 111, §12 (West 2006). </s> Melendez-Diaz was charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and 28 grams. Ch. 94C, §§32A, 32E(b)(1). At trial, the prosecution placed into evidence the bags seized from Wright and from the police cruiser. It also submitted three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and stated that the bags "[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine." App. to Pet. for Cert. 24a, 26a, 28a. The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law. Mass. Gen. Laws, ch. 111, §13. </s> Petitioner objected to the admission of the certificates, asserting that our Confrontation Clause decision in Crawford v. Washington, 541 U.S. 36 (2004), required the analysts to testify in person. The objection was overruled, and the certificates were admitted pursuant to state law as "prima facie evidence of the composition, quality, and the net weight of the narcotic ... analyzed." Mass. Gen. Laws, ch. 111, §13. </s> The jury found Melendez-Diaz guilty. He appealed, contending, among other things, that admission of the certificates violated his Sixth Amendment right to be confronted with the witnesses against him. The Appeals Court of Massachusetts rejected the claim, affirmance order, 69 Mass. App. 1114, 870 N.E. 2d 676, 2007 WL 2189152, *4, n.3 (July 31, 2007), relying on the Massachusetts Supreme Judicial Court's decision in Commonwealth v. Verde, 444 Mass. 279, 283-285, 827 N.E. 2d 701, 705-706 (2005), which held that the authors of certificates of forensic analysis are not subject to confrontation under the Sixth Amendment. The Supreme Judicial Court denied review. 449 Mass. 1113, 874 N.E. 2d 407 (2007). We granted certiorari. 552 U. S. ___ (2008). II </s> The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Crawford, after reviewing the Clause's historical underpinnings, we held that it guarantees a defendant's right to confront those "who 'bear testimony'" against him. 541 U.S., at 51. A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54. Our opinion described the class of testimonial statements covered by the Confrontation Clause as follows: "Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id., at 51-52 (internal quotation marks and citations omitted). </s> There is little doubt that the documents at issue in this case fall within the "core class of testimonial statements" thus described. Our description of that category mentions affidavits twice. See also White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment) ("[T]he Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"). The documents at issue here, while denominated by Massachusetts law "certificates," are quite plainly affidavits: "declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths." Black's Law Dictionary 62 (8th ed. 2004). They are incontrovertibly a "'solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Crawford, supra, at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine--the precise testimony the analysts would be expected to provide if called at trial. The "certificates" are functionally identical to live, in-court testimony, doing "precisely what a witness does on direct examination." Davis v. Washington, 547 U.S. 813, 830 (2006) (emphasis deleted). </s> Here, moreover, not only were the affidavits "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'" Crawford, supra, at 52, but under Massachusetts law the sole purpose of the affidavits was to provide "prima facie evidence of the composition, quality, and the net weight" of the analyzed substance, Mass. Gen. Laws, ch. 111, §13. We can safely assume that the analysts were aware of the affidavits' evidentiary purpose, since that purpose--as stated in the relevant state-law provision--was reprinted on the affidavits themselves. See App. to Pet. for Cert. 25a, 27a, 29a. </s> In short, under our decision in Crawford the analysts' affidavits were testimonial statements, and the analysts were "witnesses" for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to "'be confronted with'" the analysts at trial. Crawford, supra, at 54.1 III </s> Respondent and the dissent advance a potpourri of analytic arguments in an effort to avoid this rather straightforward application of our holding in Crawford. Before addressing them, however, we must assure the reader of the falsity of the dissent's opening alarum that we are "sweep[ing] away an accepted rule governing the admission of scientific evidence" that has been "established for at least 90 years" and "extends across at least 35 States and six Federal Courts of Appeals." Post, at 1 (opinion of Kennedy, J.). The vast majority of the state-court cases the dissent cites in support of this claim come not from the last 90 years, but from the last 30, and not surprisingly nearly all of them rely on our decision in Ohio v. Roberts, 448 U.S. 56 (1980), or its since-rejected theory that unconfronted testimony was admissible as long as it bore indicia of reliability, id., at 66. See post, at 30.2 As for the six Federal Courts of Appeals cases cited by the dissent, five of them postdated and expressly relied on Roberts. See post, at 21-22. The sixth predated Roberts but relied entirely on the same erroneous theory. See Kay v. United States, 255 F.2d 476, 480-481 (CA4 1958) (rejecting confrontation clause challenge "where there is reasonable necessity for [the evidence] and where . . . the evidence has those qualities of reliability and trustworthiness"). </s> A review of cases that predate the Roberts era yields a mixed picture. As the dissent notes, three state supreme court decisions from the early 20th century denied confrontation with respect to certificates of analysis regarding a substance's alcohol content. See post, at 21 (citing cases from Massachusetts, Connecticut, and Virginia). But other state courts in the same era reached the opposite conclusion. See Torres v. State, 18 S.W.2d 179, 180 (Tex. Crim. App. 1929); Volrich v. State, No. 278, 1925 WL 2473 (Ohio App., Nov. 2, 1925). At least this much is entirely clear: In faithfully applying Crawford to the facts of this case, we are not overruling 90 years of settled jurisprudence. It is the dissent that seeks to overturn precedent by resurrecting Roberts a mere five years after it was rejected in Crawford. </s> We turn now to the various legal arguments raised by respondent and the dissent. A </s> Respondent first argues that the analysts are not subject to confrontation because they are not "accusatory" witnesses, in that they do not directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence linking petitioner to the contraband. See Brief for Respondent 10. This finds no support in the text of the Sixth Amendment or in our case law. The Sixth Amendment guarantees a defendant the right "to be confronted with the witnesses against him." (Emphasis added.) To the extent the analysts were witnesses (a question resolved above), they certainly provided testimony against petitioner, proving one fact necessary for his conviction--that the substance he possessed was cocaine. The contrast between the text of the Confrontation Clause and the text of the adjacent Compulsory Process Clause confirms this analysis. While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses "against him," the Compulsory Process Clause guarantees a defendant the right to call witnesses "in his favor." U.S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses--those against the defendant and those in his favor. The prosecution must produce the former;3 the defendant may call the latter. Contrary to respondent's assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. </s> It is often, indeed perhaps usually, the case that an adverse witness's testimony, taken alone, will not suffice to convict. Yet respondent fails to cite a single case in which such testimony was admitted absent a defendant's opportunity to cross-examine.4 Unsurprisingly, since such a holding would be contrary to longstanding case law. In Kirby v. United States, 174 U.S. 47 (1899), the Court considered Kirby's conviction for receiving stolen property, the evidence for which consisted, in part, of the records of conviction of three individuals who were found guilty of stealing the relevant property. Id., at 53. Though this evidence proved only that the property was stolen, and not that Kirby received it, the Court nevertheless ruled that admission of the records violated Kirby's rights under the Confrontation Clause. Id., at 55. See also King v. Turner, 1 Mood. 347, 168 Eng. Rep. 1298 (1832) (confession by one defendant to having stolen certain goods could not be used as evidence against another defendant accused of receiving the stolen property). B </s> Respondent and the dissent argue that the analysts should not be subject to confrontation because they are not "conventional" (or "typical" or "ordinary") witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh. Post, at 15-16; Brief for Respondent 28. It is true, as the Court recognized in Crawford, that ex parte examinations of the sort used at Raleigh's trial have "long been thought a paradigmatic confrontation violation." 541 U.S., at 52. But the paradigmatic case identifies the core of the right to confrontation, not its limits. The right to confrontation was not invented in response to the use of the ex parte examinations in Raleigh's Case, 2 How. St. Tr. 1 (1603). That use provoked such an outcry precisely because it flouted the deeply rooted common-law tradition "of live testimony in court subject to adversarial testing." Crawford, supra, at 43 (citing 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768)). See also Crawford, supra, at 43-47. In any case, the purported distinctions respondent and the dissent identify between this case and Sir Walter Raleigh's "conventional" accusers do not survive scrutiny. The dissent first contends that a "conventional witness recalls events observed in the past, while an analyst's report contains near-contemporaneous observations of the test." Post, at 16-17. It is doubtful that the analyst's reports in this case could be characterized as reporting "near-contemporaneous observations"; the affidavits were completed almost a week after the tests were performed. See App. to Pet. for Cert. 24a-29a (the tests were performed on November 28, 2001, and the affidavits sworn on December 4, 2001). But regardless, the dissent misunderstands the role that "near-contemporaneity" has played in our case law. The dissent notes that that factor was given "substantial weight" in Davis, post, at 17, but in fact that decision disproves the dissent's position. There the Court considered the admissibility of statements made to police officers responding to a report of a domestic disturbance. By the time officers arrived the assault had ended, but the victim's statements--written and oral--were sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a "present sense impression." Davis, 547 U.S., at 820 (internal quotation marks omitted). Though the witness's statements in Davis were "near-contemporaneous" to the events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the witness. Id., at 830. </s> A second reason the dissent contends that the analysts are not "conventional witnesses" (and thus not subject to confrontation) is that they "observe[d] neither the crime nor any human action related to it." Post, at 17. The dissent provides no authority for this particular limitation of the type of witnesses subject to confrontation. Nor is it conceivable that all witnesses who fit this description would be outside the scope of the Confrontation Clause. For example, is a police officer's investigative report describing the crime scene admissible absent an opportunity to examine the officer? The dissent's novel exception from coverage of the Confrontation Clause would exempt all expert witnesses--a hardly "unconventional" class of witnesses. </s> A third respect in which the dissent asserts that the analysts are not "conventional" witnesses and thus not subject to confrontation is that their statements were not provided in response to interrogation. Ibid. See also Brief for Respondent 29. As we have explained, "[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation." Davis, supra, at 822-823, n. 1. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a "'witness against' the defendant," Brief for Respondent 26, than one who is responding to interrogation. In any event, the analysts' affidavits in this case were presented in response to a police request. See Mass. Gen. Laws, ch. 111, §§12-13. If an affidavit submitted in response to a police officer's request to "write down what happened" suffices to trigger the Sixth Amendment's protection (as it apparently does, see Davis, 547 U.S., at 819-820; id., at 840, n.5 (Thomas, J., concurring in judgment in part and dissenting in part)), then the analysts' testimony should be subject to confrontation as well. C </s> Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing." Brief for Respondent 29. Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because "one would not reasonably expect a laboratory professional ... to feel quite differently about the results of his scientific test by having to look at the defendant." Id., at 31 (internal quotation marks omitted); see post, at 10-11. This argument is little more than an invitation to return to our overruled decision in Roberts, 448 U.S. 56, which held that evidence with "particularized guarantees of trustworthiness" was admissible notwithstanding the Confrontation Clause. Id., at 66. What we said in Crawford in response to that argument remains true: "To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. ... Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." 541 U. S., at 61-62. </s> Respondent and the dissent may be right that there are other ways--and in some cases better ways--to challenge or verify the results of a forensic test.5 But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available. </s> Nor is it evident that what respondent calls "neutral scientific testing" is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, "[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency." National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6-1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And "[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id., at S-17. A forensic analyst responding to a request from a law enforcement official may feel pressure--or have an incentive--to alter the evidence in a manner favorable to the prosecution. </s> Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, post, at 10, the same cannot be said of the fraudulent analyst. See Brief for National Innocence Network as Amicus Curiae 15-17 (discussing cases of documented "drylabbing" where forensic analysts report results of tests that were never performed); National Academy Report 1-8 to 1-10 (discussing documented cases of fraud and error involving the use of forensic evidence). Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U.S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place. </s> Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that "[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics." Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006). One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). And the National Academy Report concluded: "The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country." National Academy Report P-1 (emphasis in original).6 </s> Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination. </s> This case is illustrative. The affidavits submitted by the analysts contained only the bare-bones statement that "[t]he substance was found to contain: Cocaine." App. to Pet. for Cert. 24a, 26a, 28a. At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use "methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs," App. to Brief for Petitioner 1a-2a. At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03[c], pp. 532-533, ch. 23A, p. 607 (4th ed. 2007) (identifying four "critical errors" that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard's Expert & Scientific Evidence Quarterly 593, 600 (1995) (noting that while spectrometers may be equipped with computerized matching systems, "forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment"). </s> The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions. "[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material." National Academy Report S-5. See also id., at 5-9, 5-12, 5-17, 5-21 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis). Contrary to respondent's and the dissent's suggestion, there is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology--the features that are commonly the focus in the cross-examination of experts. D </s> Respondent argues that the analysts' affidavits are admissible without confrontation because they are "akin to the types of official and business records admissible at common law." Brief for Respondent 35. But the affidavits do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless. Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U.S. 109 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad's operations, it was "calculated for use essentially in the court, not in the business." Id., at 114.7 The analysts' certificates--like police reports generated by law enforcement officials--do not qualify as business or public records for precisely the same reason. See Rule 803(8) (defining public records as "excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel"). </s> Respondent seeks to rebut this limitation by noting that at common law the results of a coroner's inquest were admissible without an opportunity for confrontation. But as we have previously noted, whatever the status of coroner's reports at common law in England, they were not accorded any special status in American practice. See Crawford, 541 U.S., at 47, n.2; Giles v. California, 554 U.S. ___, ___ (2008) (slip op., at 20) (Breyer, J., dissenting); Evidence--Official Records--Coroner's Inquest, 65 U. Pa. L. Rev. 290 (1917). </s> The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk's certificate authenticating an official record--or a copy thereof--for use as evidence. See post, at 19. But a clerk's authority in that regard was narrowly circumscribed. He was permitted "to certify to the correctness of a copy of a record kept in his office," but had "no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect." State v. Wilson, 141 La. 404, 409, 75 So. 95, 97 (1917). See also State v. Champion, 116 N.C. 987, 21 S.E. 700, 700-701 (1895); 5 J. Wigmore, Evidence §1678 (3d ed. 1940). The dissent suggests that the fact that this exception was "'narrowly circumscribed'" makes no difference. See post, at 20. To the contrary, it makes all the difference in the world. It shows that even the line of cases establishing the one narrow exception the dissent has been able to identify simultaneously vindicates the general rule applicable to the present case. A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant.8 </s> Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk's certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk's statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk's certificate would qualify as an official record under respondent's definition--it was prepared by a public officer in the regular course of his official duties--and although the clerk was certainly not a "conventional witness" under the dissent's approach, the clerk was nonetheless subject to confrontation. See People v. Bromwich, 200 N.Y. 385, 388-389, 93 N.E. 933, 934 (1911); People v. Goodrode, 132 Mich. 542, 547, 94 N.W. 14, 16 (1903); Wigmore, supra, §1678.9 </s> Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: "Most of the hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy." 541 U.S., at 56. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because--having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here--prepared specifically for use at petitioner's trial--were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment. E </s> Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power--whether pursuant to state law or the Compulsory Process Clause--is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U.S., at 820 ("[The witness] was subpoenaed, but she did not appear at ... trial"). Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses. F </s> Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the "'necessities of trial and the adversary process.'" Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause--like those other constitutional provisions--is binding, and we may not disregard it at our convenience. We also doubt the accuracy of respondent's and the dissent's dire predictions. The dissent, respondent, and its amici highlight the substantial total number of controlled-substance analyses performed by state and federal laboratories in recent years. But only some of those tests are implicated in prosecutions, and only a small fraction of those cases actually proceed to trial. See Brief for Law Professors as Amici Curiae 7-8 (nearly 95% of convictions in state and federal courts are obtained via guilty plea).10 </s> Perhaps the best indication that the sky will not fall after today's decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today,11 while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution's intent to use a forensic analyst's report, id., at 13-15 (cataloging such state laws). Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst's appearance at trial. Indeed, in Massachusetts itself, a defendant may subpoena the analyst to appear at trial, see Brief for Respondent 57, and yet there is no indication that obstructionist defendants are abusing the privilege. </s> The dissent finds this evidence "far less reassuring than promised." Post, at 28. But its doubts rest on two flawed premises. First, the dissent believes that those state statutes "requiring the defendant to give early notice of his intent to confront the analyst," are "burden-shifting statutes [that] may be invalidated by the Court's reasoning." Post, at 22, 28-29. That is not so. In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial. See, e.g, Ga. Code Ann. §35-3-154.1 (2006); Tex. Code Crim. Proc. Ann., Art. 38.41, §4 (Vernon 2005); Ohio Rev. Code Ann. §2925.51(C) (West 2006). Contrary to the dissent's perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. See Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. See Fed. Rules Crim. Proc. 12.1(a), (e), 16(b)(1)(C); Comment: Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U. Chi. L. Rev. 254, 254-255, 281-285 (1984) (discussing and cataloguing State notice-of-alibi rules); Taylor v. Illinois, 484 U. S. 400, 411 (1988); Williams v. Florida, 399 U. S. 78, 81-82 (1970). There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. See Hinojos-Mendoza v. People, 169 P. 3d 662, 670 (Colo. 2007) (discussing and approving Colorado's notice-and-demand provision). Today's decision will not disrupt criminal prosecutions in the many large States whose practice is already in accord with the Confrontation Clause.12 </s> Second, the dissent notes that several of the state-court cases that have already adopted this rule did so pursuant to our decision in Crawford, and not "independently ... as a matter of state law." Post, at 28. That may be so. But in assessing the likely practical effects of today's ruling, it is irrelevant why those courts adopted this rule; it matters only that they did so. It is true that many of these decisions are recent, but if the dissent's dire predictions were accurate, and given the large number of drug prosecutions at the state level, one would have expected immediate and dramatic results. The absence of such evidence is telling. </s> But it is not surprising. Defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case. It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.13 The amicus brief filed by District Attorneys in Support of the Commonwealth in the Massachusetts Supreme Court case upon which the Appeals Court here relied said that "it is almost always the case that [analysts' certificates] are admitted without objection. Generally, defendants do not object to the admission of drug certificates most likely because there is no benefit to a defendant from such testimony." Brief for District Attorneys in Support of the Commonwealth in No. SJC-09320 (Mass.), p.7 (footnote omitted). Given these strategic considerations, and in light of the experience in those States that already provide the same or similar protections to defendants, there is little reason to believe that our decision today will commence the parade of horribles respondent and the dissent predict. *  *  * </s> This case involves little more than the application of our holding in Crawford v. Washington, 541 U. S. 36. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.14 We therefore reverse the judgment of the Appeals Court of Massachusetts and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. </s> LUIS E. MELENDEZ-DIAZ, PETITIONER v. MASSACHUSETTS on writ of certiorari to the appeals court of massachusetts [June 25, 2009] </s> Justice Thomas, concurring. </s> I write separately to note that I continue to adhere to my position that "the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." White v. Illinois, 502 U.S. 346, 365 (1992) (opinion concurring in part and concurring in judgment); see also Giles v. California, 554 U.S. ___, ___ (2008) (slip op., at 1) (concurring opinion) (characterizing statements within the scope of the Confrontation Clause to include those that are "sufficiently formal to resemble the Marian examinations" because they were Mirandized or custodial or "accompanied by [a] similar indicia of formality" (internal quotation marks omitted)); Davis v. Washington, 547 U.S. 813, 836 (2006) (opinion concurring in judgment in part and dissenting in part) (reiterating that the Clause encompasses extrajudicial statements contained in the types of formalized materials listed in White, supra, at 365. I join the Court's opinion in this case because the documents at issue in this case "are quite plainly affidavits," ante, at 4. As such, they "fall within the core class of testimonial statements" governed by the Confrontation Clause. Ibid. (internal quotation marks omitted). </s> LUIS E. MELENDEZ-DIAZ, PETITIONER v. MASSACHUSETTS on writ of certiorari to the appeals court of massachusetts [June 25, 2009] </s> Justice Kennedy, with whom The Chief Justice, Justice Breyer, and Justice Alito join, dissenting. </s> The Court sweeps away an accepted rule governing the admission of scientific evidence. Until today, scientific analysis could be introduced into evidence without testimony from the "analyst" who produced it. This rule has been established for at least 90 years. It extends across at least 35 States and six Federal Courts of Appeals. Yet the Court undoes it based on two recent opinions that say nothing about forensic analysts: Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006). </s> It is remarkable that the Court so confidently disregards a century of jurisprudence. We learn now that we have misinterpreted the Confrontation Clause--hardly an arcane or seldom-used provision of the Constitution--for the first 218 years of its existence. The immediate systemic concern is that the Court makes no attempt to acknowledge the real differences between laboratory analysts who perform scientific tests and other, more conventional witnesses--"witnesses" being the word the </s> Framers used in the Confrontation Clause. </s> Crawford and Davis dealt with ordinary witnesses--women who had seen, and in two cases been the victim of, the crime in question. Those cases stand for the proposition that formal statements made by a conventional witness--one who has personal knowledge of some aspect of the defendant's guilt--may not be admitted without the witness appearing at trial to meet the accused face to face. But Crawford and Davis do not say--indeed, could not have said, because the facts were not before the Court--that anyone who makes a testimonial statement is a witness for purposes of the Confrontation Clause, even when that person has, in fact, witnessed nothing to give them personal knowledge of the defendant's guilt. </s> Because Crawford and Davis concerned typical witnesses, the Court should have done the sensible thing and limited its holding to witnesses as so defined. Indeed, as Justice Thomas warned in his opinion in Davis, the Court's approach has become "disconnected from history and unnecessary to prevent abuse." 547 U.S., at 838. The Court's reliance on the word "testimonial" is of little help, of course, for that word does not appear in the text of the Clause. </s> The Court dictates to the States, as a matter of constitutional law, an as-yet-undefined set of rules governing what kinds of evidence may be admitted without in-court testimony. Indeed, under today's opinion the States bear an even more onerous burden than they did before Crawford. Then, the States at least had the guidance of the hearsay rule and could rest assured that "where the evidence f[ell] within a firmly rooted hearsay exception," the Confrontation Clause did not bar its admission. Ohio v. Roberts, 448 U.S. 56, 66 (1980) (overruled by Crawford). Now, without guidance from any established body of law, the States can only guess what future rules this Court will distill from the sparse constitutional text. See, e.g., Méndez, Crawford v. Washington: A Critique, 57 Stan. L.Rev. 569, 586-593 (2004) (discussing unanswered questions regarding testimonial statements). </s> The Court's opinion suggests this will be a body of formalistic and wooden rules, divorced from precedent, common sense, and the underlying purpose of the Clause. Its ruling has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence. For these reasons, as more fully explained below, the Court's opinion elicits my respectful dissent. I A </s> 1 The Court says that, before the results of a scientific test may be introduced into evidence, the defendant has the right to confront the "analyst." Ante, at 4-5. One must assume that this term, though it appears nowhere in the Confrontation Clause, nevertheless has some constitutional substance that now must be elaborated in future cases. There is no accepted definition of analyst, and there is no established precedent to define that term. Consider how many people play a role in a routine test for the presence of illegal drugs. One person prepares a sample of the drug, places it in a testing machine, and retrieves the machine's printout--often, a graph showing the frequencies of radiation absorbed by the sample or the masses of the sample's molecular fragments. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03 (4th ed. 2007) (describing common methods of identifying drugs, including infrared spectrophotometry, nuclear magnetic resonance, gas chromatography, and mass spectrometry). A second person interprets the graph the machine prints out--perhaps by comparing that printout with published, standardized graphs of known drugs. Ibid. Meanwhile, a third person--perhaps an independent contractor--has calibrated the machine and, having done so, has certified that the machine is in good working order. Finally, a fourth person--perhaps the laboratory's director--certifies that his subordinates followed established procedures. </s> It is not at all evident which of these four persons is the analyst to be confronted under the rule the Court announces today. If all are witnesses who must appear for in-court confrontation, then the Court has, for all practical purposes, forbidden the use of scientific tests in criminal trials. As discussed further below, requiring even one of these individuals to testify threatens to disrupt if not end many prosecutions where guilt is clear but a newly found formalism now holds sway. See Part I-C, infra. </s> It is possible to read the Court's opinion, however, to say that all four must testify. Each one has contributed to the test's result and has, at least in some respects, made a representation about the test. Person One represents that a pure sample, properly drawn, entered the machine and produced a particular printout. Person Two represents that the printout corresponds to a known drug. Person Three represents that the machine was properly calibrated at the time. Person Four represents that all the others performed their jobs in accord with established procedures. </s> And each of the four has power to introduce error. A laboratory technician might adulterate the sample. The independent contractor might botch the machine's calibration. And so forth. The reasons for these errors may range from animus against the particular suspect or all criminal suspects to unintentional oversight; from gross negligence to good-faith mistake. It is no surprise that a plausible case can be made for deeming each person in the testing process an analyst under the Court's opinion. </s> Consider the independent contractor who has calibrated the testing machine. At least in a routine case, where the machine's result appears unmistakable, that result's accuracy depends entirely on the machine's calibration. The calibration, in turn, can be proved only by the contractor's certification that he or she did the job properly. That certification appears to be a testimonial statement under the Court's definition: It is a formal, out-of-court statement, offered for the truth of the matter asserted, and made for the purpose of later prosecution. See ante, at 3-5. It is not clear, under the Court's ruling, why the independent contractor is not also an analyst. </s> Consider the person who interprets the machine's printout. His or her interpretation may call for the exercise of professional judgment in close cases. See Giannelli & Imwinkelried, supra. If we assume no person deliberately introduces error, this interpretive step is the one most likely to permit human error to affect the test's result. This exercise of judgment might make this participant an analyst. The Court implies as much. See ante, at 12-14. </s> And we must yet consider the laboratory director who certifies the ultimate results. The director is arguably the most effective person to confront for revealing any ambiguity in findings, variations in procedures, or problems in the office, as he or she is most familiar with the standard procedures, the office's variations, and problems in prior cases or with particular analysts. The prosecution may seek to introduce his or her certification into evidence. The Court implies that only those statements that are actually entered into evidence require confrontation. See ante, at 4-5. This could mean that the director is also an analyst, even if his or her certification relies upon or restates work performed by subordinates. </s> The Court offers no principles or historical precedent to determine which of these persons is the analyst. All contribute to the test result. And each is equally remote from the scene, has no personal stake in the outcome, does not even know the accused, and is concerned only with the performance of his or her role in conducting the test. </s> It could be argued that the only analyst who must testify is the person who signed the certificate. Under this view, a laboratory could have one employee sign certificates and appear in court, which would spare all the other analysts this burden. But the Court has already rejected this arrangement. The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second: "[W]e do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman [here, the laboratory employee who signs the certificate] recite the unsworn hearsay testimony of the declarant [here, the analyst who performs the actual test], instead of having the declarant sign a deposition. Indeed, if there is one point for which no case--English or early American, state or federal--can be cited, that is it." 547 U.S., at 826. </s> Under this logic, the Court's holding cannot be cabined to the person who signs the certificates. If the signatory is restating the testimonial statements of the true analysts--whoever they might be--then those analysts, too, must testify in person. </s> Today's decision demonstrates that even in the narrow category of scientific tests that identify a drug, the Court cannot define with any clarity who the analyst is. Outside this narrow category, the range of other scientific tests that may be affected by the Court's new confrontation right is staggering. See, e.g., Comment, Toward a Definition of "Testimonial": How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093, 1094, 1115 (2008) (noting that every court post-Crawford has held that autopsy reports are not testimonial, and warning that a contrary rule would "effectively functio[n] as a statute of limitations for murder"). 2 </s> It is difficult to confine at this point the damage the Court's holding will do in other contexts. Consider just two--establishing the chain of custody and authenticating a copy of a document. It is the obligation of the prosecution to establish the chain of custody for evidence sent to testing laboratories--that is, to establish "the identity and integrity of physical evidence by tracing its continuous whereabouts." 23 C.J.S., Criminal Law §1142, p. 66 (2008). Meeting this obligation requires representations--that one officer retrieved the evidence from the crime scene, that a second officer checked it into an evidence locker, that a third officer verified the locker's seal was intact, and so forth. The iron logic of which the Court is so enamored would seem to require in-court testimony from each human link in the chain of custody. That, of course, has never been the law. See, e.g., United States v. Lott, 854 F.2d 244, 250 (CA7 1988) ("[G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility"); 29A Am. Jur. 2d, Evidence §962, p. 269 (2009) ("The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible"); C.J.S., supra, §1142, at 67 ("It is generally not necessary that every witness who handled the evidence testify"). </s> It is no answer for the Court to say that "[i]t is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence." Ante, at 5, n.1. The case itself determines which links in the chain are crucial--not the prosecution. In any number of cases, the crucial link in the chain will not be available to testify and so the evidence will be excluded for lack of a proper foundation. </s> Consider another context in which the Court's holding may cause disruption: The long-accepted practice of authenticating copies of documents by means of a certificate from the document's custodian stating that the copy is accurate. See, e.g., Fed. Rule Evid. 902(4) (in order to be self-authenticating, a copy of a public record must be "certified as correct by the custodian"); Rule 902(11) (business record must be "accompanied by a written declaration of its custodian"). Under one possible reading of the Court's opinion, recordkeepers will be required to testify. So far, courts have not read Crawford and Davis to impose this largely meaningless requirement. See, e.g., United States v. Adefehinti, 510 F.3d 319, 327-328 (CADC 2008) (certificates authenticating bank records may be admitted without confrontation); United States v. Ellis, 460 F.3d 920, 927 (CA7 2006) (certificate authenticating hospital records). But the breadth of the Court's ruling today, and its undefined scope, may well be such that these courts now must be deemed to have erred. The risk of that consequence ought to tell us that something is very wrong with the Court's analysis. </s> Because the Court is driven by nothing more than a wooden application of the Crawford and Davis definition of "testimonial," divorced from any guidance from history, precedent, or common sense, there is no way to predict the future applications of today's holding. Surely part of the justification for the Court's formalism must lie in its predictability. There is nothing predictable here, however, other than the uncertainty and disruption that now must ensue. B </s> With no precedent to guide us, let us assume that the Court's analyst is the person who interprets the machine's printout. This result makes no sense. The Confrontation Clause is not designed, and does not serve, to detect errors in scientific tests. That should instead be done by conducting a new test. Or, if a new test is impossible, the defendant may call his own expert to explain to the jury the test's flaws and the dangers of relying on it. And if, in an extraordinary case, the particular analyst's testimony is necessary to the defense, then, of course, the defendant may subpoena the analyst. The Court frets that the defendant may be unable to do so "when the [analyst] is unavailable or simply refuses to appear." Ante, at 19. But laboratory analysts are not difficult to locate or to compel. As discussed below, analysts already devote considerable time to appearing in court when subpoenaed to do so. See Part I-C, infra; see also Brief for State of Alabama etal. as Amici Curiae 26-28. Neither the Court, petitioner, nor amici offer any reason to believe that defendants have trouble subpoenaing analysts in cases where the analysts' in-court testimony is necessary. The facts of this case illustrate the formalistic and pointless nature of the Court's reading of the Clause. Petitioner knew, well in advance of trial, that the Commonwealth would introduce the tests against him. The bags of cocaine were in court, available for him to test, and entered into evidence. Yet petitioner made no effort, before or during trial, to mount a defense against the analysts' results. Petitioner could have challenged the tests' reliability by seeking discovery concerning the testing methods used or the qualifications of the laboratory analysts. See Mass. Rule Crim. Proc.14(a)(2) (2009). He did not do so. Petitioner could have sought to conduct his own test. See Rule 41. Again, he did not seek a test; indeed, he did not argue that the drug was not cocaine. Rather than dispute the authenticity of the samples tested or the accuracy of the tests performed, petitioner argued to the jury that the prosecution had not shown that he had possessed or dealt in the drugs. </s> Despite not having prepared a defense to the analysts' results, petitioner's counsel made what can only be described as a pro forma objection to admitting the results without in-court testimony, presumably from one particular analyst. Today the Court, by deciding that this objection should have been sustained, transforms the Confrontation Clause from a sensible procedural protection into a distortion of the criminal justice system. </s> It is difficult to perceive how the Court's holding will advance the purposes of the Confrontation Clause. One purpose of confrontation is to impress upon witnesses the gravity of their conduct. See Coy v. Iowa, 487 U.S. 1012, 1019-1020 (1988). A witness, when brought to face the person his or her words condemn, might refine, reformulate, reconsider, or even recant earlier statements. See ibid. A further purpose is to alleviate the danger of one-sided interrogations by adversarial government officials who might distort a witness's testimony. The Clause guards against this danger by bringing the interrogation into the more neutral and public forum of the courtroom. See Maryland v. Craig, 497 U.S. 836, 869-870 (1990) (Scalia, J., dissenting) (discussing the "value of the confrontation right in guarding against a child's distorted or coerced recollections"); see also 96 Cal. L.Rev., supra, at 1120-1122 ("During private law-enforcement questioning, police officers or prosecutors can exert pressure on the witness without a high risk of being discovered. Courtroom questioning, in contrast, is public and performed in front of the jury, judge and defendant. Pressure is therefore harder to exert in court"). </s> But neither purpose is served by the rule the Court announces today. It is not plausible that a laboratory analyst will retract his or her prior conclusion upon catching sight of the defendant the result condemns. After all, the analyst is far removed from the particular defendant and, indeed, claims no personal knowledge of the defendant's guilt. And an analyst performs hundreds if not thousands of tests each year and will not remember a particular test or the link it had to the defendant. </s> This is not to say that analysts are infallible. They are not. It may well be that if the State does not introduce the machine printout or the raw results of a laboratory analysis; if it does not call an expert to interpret a test, particularly if that test is complex or little known; if it does not establish the chain of custody and the reliability of the laboratory; then the State will have failed to meet its burden of proof. That result follows because the State must prove its case beyond a reasonable doubt, without relying on presumptions, unreliable hearsay, and the like. See United States v. United States Gypsum Co., 438 U.S. 422, 446 (1978) (refusing to permit a "'conclusive presumption [of intent],'" which "'would effectively eliminate intent as an ingredient of the offense'" (quoting Morissette v. United States, 342 U.S. 246, 274-275 (1952)). The State must permit the defendant to challenge the analyst's result. See Holmes v. South Carolina, 547 U.S. 319, 331 (2006) (affirming the defendant's right to "have a meaningful opportunity to present a complete defense" (internal quotation marks omitted)). The rules of evidence, including those governing reliability under hearsay principles and the latitude to be given expert witnesses; the rules against irrebutable presumptions; and the overriding principle that the prosecution must make its case beyond a reasonable doubt--all these are part of the protections for the accused. The States, however, have some latitude in determining how these rules should be defined. </s> The Confrontation Clause addresses who must testify. It simply does not follow, however, that this clause, in lieu of the other rules set forth above, controls who the prosecution must call on every issue. Suppose, for instance, that the defense challenges the procedures for a secure chain of custody for evidence sent to a lab and then returned to the police. The defense has the right to call its own witnesses to show that the chain of custody is not secure. But that does not mean it can demand that, in the prosecution's case in chief, each person who is in the chain of custody--and who had an undoubted opportunity to taint or tamper with the evidence--must be called by the prosecution under the Confrontation Clause. And the same is true with lab technicians. </s> The Confrontation Clause is simply not needed for these matters. Where, as here, the defendant does not even dispute the accuracy of the analyst's work, confrontation adds nothing. C </s> For the sake of these negligible benefits, the Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal based on erratic, all-too-frequent instances when a particular laboratory technician, now invested by the Court's new constitutional designation as the analyst, simply does not or cannot appear. Consider first the costs today's decision imposes on criminal trials. Our own Court enjoys weeks, often months, of notice before cases are argued. We receive briefs well in advance. The argument itself is ordered. A busy trial court, by contrast, must consider not only attorneys' schedules but also those of witnesses and juries. Trial courts have huge caseloads to be processed within strict time limits. Some cases may unexpectedly plead out at the last minute; others, just as unexpectedly, may not. Some juries stay out longer than predicted; others must be reconstituted. An analyst cannot hope to be the trial court's top priority in scheduling. The analyst must instead face the prospect of waiting for days in a hallway outside the courtroom before being called to offer testimony that will consist of little more than a rote recital of the written report. See Part I-B, supra. </s> As matters stood before today's opinion, analysts already spent considerable time appearing as witnesses in those few cases where the defendant, unlike petitioner in this case, contested the analyst's result and subpoenaed the analyst. See Brief for Alabama etal. as Amici Curiae 26-28 (testifying takes time); ante, at 23 (before today's opinion, it was "'almost always the case that analysts' certificates [we]re admitted without objection'" in Massachusetts courts). By requiring analysts also to appear in the far greater number of cases where defendants do not dispute the analyst's result, the Court imposes enormous costs on the administration of justice. </s> Setting aside, for a moment, all the other crimes for which scientific evidence is required, consider the costs the Court's ruling will impose on state drug prosecutions alone. In 2004, the most recent year for which data are available, drug possession and trafficking resulted in 362,850 felony convictions in state courts across the country. See Dept. of Justice, Bureau of Justice Statistics, M. Durose & P. Langan, Felony Sentences in State Courts 2004, p. 2 (July 2007). Roughly 95% of those convictions were products of plea bargains, see id., at 1, which means that state courts saw more than 18,000 drug trials in a single year. The analysts responsible for testing the drugs at issue in those cases now bear a crushing burden. For example, the district attorney in Philadelphia prosecuted 25,000 drug crimes in 2007. Brief for National Dist. Attorneys Association etal. as Amici Curiae 12-13. Assuming that number remains the same, and assuming that 95% of the cases end in a plea bargain, each of the city's 18 drug analysts, ibid., will be required to testify in more than 69 trials next year. Cleveland's district attorney prosecuted 14,000 drug crimes in 2007. Ibid. Assuming that number holds, and that 95% of the cases end in a plea bargain, each of the city's 6 drug analysts (two of whom work only part time) must testify in 117 drug cases next year. Id., at 13. </s> The Federal Government may face even graver difficulties than the States because its operations are so widespread. For example, the FBI laboratory at Quantico, Virginia, supports federal, state, and local investigations across the country. Its 500 employees conduct over one million scientific tests each year. Dept. of Justice, FBI Laboratory 2007, Message from the FBI Laboratory Director, http://www.fbi.gov/hq/lab/lab2007/labannual07.pdf (as visited June 22, 2009, and available in Clerk of Court's case file). The Court's decision means that before any of those million tests reaches a jury, at least one of the laboratory's analysts must board a plane, find his or her way to an unfamiliar courthouse, and sit there waiting to read aloud notes made months ago. </s> The Court purchases its meddling with the Confrontation Clause at a dear price, a price not measured in taxpayer dollars alone. Guilty defendants will go free, on the most technical grounds, as a direct result of today's decision, adding nothing to the truth-finding process. The analyst will not always make it to the courthouse in time. He or she may be ill; may be out of the country; may be unable to travel because of inclement weather; or may at that very moment be waiting outside some other courtroom for another defendant to exercise the right the Court invents today. If for any reason the analyst cannot make it to the courthouse in time, then, the Court holds, the jury cannot learn of the analyst's findings (unless, by some unlikely turn of events, the defendant previously cross-examined the analyst). Ante, at 3. The result, in many cases, will be that the prosecution cannot meet its burden of proof, and the guilty defendant goes free on a technicality that, because it results in an acquittal, cannot be reviewed on appeal. </s> The Court's holding is a windfall to defendants, one that is unjustified by any demonstrated deficiency in trials, any well-understood historical requirement, or any established constitutional precedent. II </s> All of the problems with today's decision--the imprecise definition of "analyst," the lack of any perceptible benefit, the heavy societal costs--would be of no moment if the Constitution did, in fact, require the Court to rule as it does today. But the Constitution does not. The Court's fundamental mistake is to read the Confrontation Clause as referring to a kind of out-of-court statement--namely, a testimonial statement--that must be excluded from evidence. The Clause does not refer to kinds of statements. Nor does the Clause contain the word "testimonial." The text, instead, refers to kinds of persons, namely, to "witnesses against" the defendant. Laboratory analysts are not "witnesses against" the defendant as those words would have been understood at the framing. There is simply no authority for this proposition. </s> Instead, the Clause refers to a conventional "witness"--meaning one who witnesses (that is, perceives) an event that gives him or her personal knowledge of some aspect of the defendant's guilt. Both Crawford and Davis concerned just this kind of ordinary witness--and nothing in the Confrontation Clause's text, history, or precedent justifies the Court's decision to expand those cases. A </s> The Clause states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const., Amdt. 6. Though there is "virtually no evidence of what the drafters of the Confrontation Clause intended it to mean," White v. Illinois, 502 U.S. 346, 359 (1992) (Thomas, J., concurring in part and concurring in judgment), it is certain the Framers did not contemplate that an analyst who conducts a scientific test far removed from the crime would be considered a "witnes[s] against" the defendant. The Framers were concerned with a typical witness--one who perceived an event that gave rise to a personal belief in some aspect of the defendant's guilt. There is no evidence that the Framers understood the Clause to extend to unconventional witnesses. As discussed below, there is significant evidence to the contrary. See Part II-B, infra. In these circumstances, the historical evidence in support of the Court's position is "'too meager...to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution.'" Boumediene v. Bush, 553 U.S. ___, ___ (2008) (slip op., at 22) (quoting Reid v. Covert, 354 U.S. 1, 64 (1957) (Frankfurter, J., concurring in result)). The Court goes dangerously wrong when it bases its constitutional interpretation upon historical guesswork. </s> The infamous treason trial of Sir Walter Raleigh provides excellent examples of the kinds of witnesses to whom the Confrontation Clause refers. Raleigh's Case, 2 How. St. Tr. 1 (1603); see Crawford, 541 U.S., at 44-45 (Raleigh's trial informs our understanding of the Clause because it was, at the time of the framing, one of the "most notorious instances" of the abuse of witnesses' out-of-court statements); ante, at 9 (same). Raleigh's accusers claimed to have heard Raleigh speak treason, so they were witnesses in the conventional sense. We should limit the Confrontation Clause to witnesses like those in Raleigh's trial. </s> The Court today expands the Clause to include laboratory analysts, but analysts differ from ordinary witnesses in at least three significant ways. First, a conventional witness recalls events observed in the past, while an analyst's report contains near-contemporaneous observations of the test. An observation recorded at the time it is made is unlike the usual act of testifying. A typical witness must recall a previous event that he or she perceived just once, and thus may have misperceived or misremembered. But an analyst making a contemporaneous observation need not rely on memory; he or she instead reports the observations at the time they are made. We gave this consideration substantial weight in Davis. There, the "primary purpose" of the victim's 911 call was "to enable police assistance to meet an ongoing emergency," rather than "to establish or prove past events potentially relevant to later criminal prosecution." 547 U.S., at 822, 827. See also People v. Geier, 41 Cal. 4th 555, 605-609, 161 P.3d 104, 139-141 (2007). The Court cites no authority for its holding that an observation recorded at the time it is made is an act of "witness[ing]" for purposes of the Confrontation Clause. </s> Second, an analyst observes neither the crime nor any human action related to it. Often, the analyst does not know the defendant's identity, much less have personal knowledge of an aspect of the defendant's guilt. The analyst's distance from the crime and the defendant, in both space and time, suggests the analyst is not a witness against the defendant in the conventional sense. </s> Third, a conventional witness responds to questions under interrogation. See, e.g., Raleigh's Case, supra, at 15-20. But laboratory tests are conducted according to scientific protocols; they are not dependent upon or controlled by interrogation of any sort. Put differently, out-of-court statements should only "require confrontation if they are produced by, or with the involvement of, adversarial government officials responsible for investigating and prosecuting crime." 96 Cal. L.Rev., at 1118. There is no indication that the analysts here--who work for the State Laboratory Institute, a division of the Massachusetts Department of Public Health--were adversarial to petitioner. Nor is there any evidence that adversarial officials played a role in formulating the analysts' certificates. </s> Rather than acknowledge that it expands the Confrontation Clause beyond conventional witnesses, the Court relies on our recent opinions in Crawford and Davis. Ante, at 3-5. The Court assumes, with little analysis, that Crawford and Davis extended the Clause to any person who makes a "testimonial" statement. But the Court's confident tone cannot disguise the thinness of these two reeds. Neither Crawford nor Davis considered whether the Clause extends to persons far removed from the crime who have no connection to the defendant. Instead, those cases concerned conventional witnesses. Davis, supra, at 826-830 (witnesses were victims of defendants' assaults); Crawford, supra, at 38 (witness saw defendant stab victim). </s> It is true that Crawford and Davis employed the term "testimonial," and thereby suggested that any testimonial statement, by any person, no matter how distant from the defendant and the crime, is subject to the Confrontation Clause. But that suggestion was not part of the holding of Crawford or Davis. Those opinions used the adjective "testimonial" to avoid the awkward phrasing required by reusing the noun "witness." The Court today transforms that turn of phrase into a new and sweeping legal rule, by holding that anyone who makes a formal statement for the purpose of later prosecution--no matter how removed from the crime--must be considered a "witness against" the defendant. Ante, at 3-5. The Court cites no authority to justify this expansive new interpretation. B </s> No historical evidence supports the Court's conclusion that the Confrontation Clause was understood to extend beyond conventional witnesses to include analysts who conduct scientific tests far removed from the crime and the defendant. Indeed, what little evidence there is contradicts this interpretation. Though the Framers had no forensic scientists, they did use another kind of unconventional witness--the copyist. A copyist's work may be as essential to a criminal prosecution as the forensic analyst's. To convict a man of bigamy, for example, the State often requires his marriage records. See, e.g., Williams v. State, 54 Ala. 131, 134, 135 (1875); State v. Potter, 52 Vt. 33, 38 (1879). But if the original records cannot be taken from the archive, the prosecution must rely on copies of those records, made for the purpose of introducing the copies into evidence at trial. See ibid. In that case, the copyist's honesty and diligence are just as important as the analyst's here. If the copyist falsifies a copy, or even misspells a name or transposes a date, those flaws could lead the jury to convict. Because so much depends on his or her honesty and diligence, the copyist often prepares an affidavit certifying that the copy is true and accurate. </s> Such a certificate is beyond question a testimonial statement under the Court's definition: It is a formal out-of-court statement offered for the truth of two matters (the copyist's honesty and the copy's accuracy), and it is prepared for a criminal prosecution. </s> During the Framers' era copyists' affidavits were accepted without hesitation by American courts. See, e.g., United States v. Percheman, 7 Pet. 51, 85 (1833) (opinion for the Court by Marshall, C.J.); see also Advisory Committee's Note on Fed. Rule Evid. 902(4), 28 U.S.C. App., p. 390 ("The common law...recognized the procedure of authenticating copies of public records by certificate"); 5 J. Wigmore, Evidence §§1677, 1678 (J. Chadbourn rev. 1974). And courts admitted copyists' affidavits in criminal as well as civil trials. See Williams, supra; Potter, supra. This demonstrates that the framing generation, in contrast to the Court today, did not consider the Confrontation Clause to require in-court confrontation of unconventional authors of testimonial statements. </s> The Court attempts to explain away this historical exception to its rule by noting that a copyist's authority is "narrowly circumscribed." Ante, at 16. But the Court does not explain why that matters, nor, if it does matter, why laboratory analysts' authority should not also be deemed "narrowly circumscribed" so that they, too, may be excused from testifying. And drawing these fine distinctions cannot be squared with the Court's avowed allegiance to formalism. Determining whether a witness' authority is "narrowly circumscribed" has nothing to do with Crawford's testimonial framework. It instead appears much closer to the pre-Crawford rule of Ohio v. Roberts, under which a statement could be admitted without testimony if it "bears adequate indicia of reliability." 448 U.S., at 66 (internal quotation marks omitted). </s> In keeping with the traditional understanding of the Confrontation Clause, this Court in Dowdell v. United States, 221 U.S. 325 (1911), rejected a challenge to the use of certificates, sworn out by a clerk of court, a trial judge, and a court reporter, stating that defendants had been present at trial. Those certificates, like a copyist's certificate, met every requirement of the Court's current definition of "testimonial." In rejecting the defendants' claim that use of the certificates violated the Confrontation Clause, the Court in Dowdell explained that the officials who executed the certificates "were not witnesses against the accused" because they "were not asked to testify to facts concerning [the defendants'] guilt or innocence." Id., at 330. Indeed, as recently as Davis, the Court reaffirmed Dowdell. 547 U.S., at 825. By insisting that every author of a testimonial statement appear for confrontation, on pain of excluding the statement from evidence, the Court does violence to the Framers' sensible, and limited, conception of the right to confront "witnesses against" the defendant. C </s> In addition to lacking support in historical practice or in this Court's precedent, the Court's decision is also contrary to authority extending over at least 90 years, 35 States, and six Federal Courts of Appeals. Almost 100 years ago three state supreme courts held that their state constitutions did not require analysts to testify in court. In a case much like this one, the Massachusetts Supreme Judicial Court upheld the admission of a certificate stating that the liquid seized from the defendant contained alcohol, even though the author of the certificate did not testify. Commonwealth v. Slavski, 245 Mass. 405, 413, 140 N.E. 465, 467 (1923). The highest courts in Connecticut and Virginia reached similar conclusions under their own constitutions. State v. Torello, 103 Conn. 511, 131 A. 429 (1925); Bracey v. Commonwealth, 119 Va. 867, 89 S.E. 144 (1916). Just two state courts appear to have read a state constitution to require a contrary result. State v. Clark, 290 Mont. 479, 484-489, 964 P.2d 766, 770-772 (1998) (laboratory drug report requires confrontation under Montana's Constitution, which is "[u]nlike its federal counterpart"); State v. Birchfield, 342 Ore. 624, 157 P.3d 216 (2007), but see id., at 631-632, 157 P.3d, at 220 (suggesting that a "typical notice requirement" would be lawful). </s> As for the Federal Constitution, before Crawford the authority was stronger still: The Sixth Amendment does not require analysts to testify in court. All Federal Courts of Appeals to consider the issue agreed. Sherman v. Scott, 62 F.3d 136, 139-142 (CA5 1995); Minner v. Kerby, 30 F.3d 1311, 1313-1315 (CA10 1994); United States v. Baker, 855 F.2d 1353, 1359-1360 (CA8 1988); Reardon v. Manson, 806 F.2d 39 (CA2 1986); Kay v. United States, 255 F.2d 476, 480-481 (CA4 1958); see also Manocchio v. Moran, 919 F.2d 770, 777-782 (CA1 1990) (autopsy report stating cause of victim's death). Some 24 state courts, and the Court of Appeals for the Armed Forces, were in accord. See Appendix A, infra. (Some cases cited in the appendixes concern doctors, coroners, and calibrators rather than laboratory analysts, but their reasoning is much the same.) Eleven more state courts upheld burden-shifting statutes that reduce, if not eliminate, the right to confrontation by requiring the defendant to take affirmative steps prior to trial to summon the analyst. See ibid. Because these burden-shifting statutes may be invalidated by the Court's reasoning, these 11 decisions, too, appear contrary to today's opinion. See Part III-B, infra. Most of the remaining States, far from endorsing the Court's view, appear not to have addressed the question prior to Crawford. Against this weight of authority, the Court proffers just two cases from intermediate state courts of appeals. Ante, at 6-7. </s> On a practical level, today's ruling would cause less disruption if the States' hearsay rules had already required analysts to testify. But few States require this. At least sixteen state courts have held that their evidentiary rules permit scientific test results, calibration certificates, and the observations of medical personnel to enter evidence without in-court testimony. See Appendix B, infra. The Federal Courts of Appeals have reached the same conclusion in applying the federal hearsay rule. United States v. Garnett, 122 F.3d 1016, 1018-1019 (CA11 1997) (per curiam); United States v. Gilbert, 774 F.2d 962, 965 (CA9 1985) (per curiam); United States v. Ware, 247 F.2d 698, 699-700 (CA7 1957); but see United States v. Oates, 560 F.2d 45, 82 (CA2 1977) (report prepared by law enforcement not admissible under public-records or business-records exceptions to federal hearsay rule). </s> The modern trend in the state courts has been away from the Court's rule and toward the admission of scientific test results without testimony--perhaps because the States have recognized the increasing reliability of scientific testing. See Appendix B, infra (citing cases from three States overruling or limiting previous precedents that had adopted the Court's rule as a matter of state law). It appears that a mere six courts continue to interpret their States' hearsay laws to require analysts to testify. See ibid. And, of course, where courts have grounded their decisions in state law, rather than the Constitution, the legislatures in those States have had, until now, the power to abrogate the courts' interpretation if the costs were shown to outweigh the benefits. Today the Court strips that authority from the States by carving the minority view into the constitutional text. </s> State legislatures, and not the Members of this Court, have the authority to shape the rules of evidence. The Court therefore errs when it relies in such great measure on the recent report of the National Academy of Sciences. Ante, at 12-14 (discussing National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (Prepublication Copy Feb. 2009)). That report is not directed to this Court, but rather to the elected representatives in Congress and the state legislatures, who, unlike Members of this Court, have the power and competence to determine whether scientific tests are unreliable and, if so, whether testimony is the proper solution to the problem. </s> The Court rejects the well-established understanding--extending across at least 90 years, 35 States and six Federal Courts of Appeals--that the Constitution does not require analysts to testify in court before their analysis may be introduced into evidence. The only authority on which the Court can rely is its own speculation on the meaning of the word "testimonial," made in two recent opinions that said nothing about scientific analysis or scientific analysts. III </s> In an attempt to show that the "sky will not fall after today's decision," ante, at 20, the Court makes three arguments, none of which withstands scrutiny. A </s> In an unconvincing effort to play down the threat that today's new rule will disrupt or even end criminal prosecutions, the Court professes a hope that defense counsel will decline to raise what will soon be known as the Melendez-Diaz objection. Ante, at 22. The Court bases this expectation on its understanding that defense attorneys surrender constitutional rights because the attorneys do not "want to antagonize the judge or jury by wasting their time." Ibid. The Court's reasoning is troubling on at least two levels. First, the Court's speculation rests on the apparent belief that our Nation's trial judges and jurors are unwilling to accept zealous advocacy and that, once "antagonize[d]" by it, will punish such advocates with adverse rulings. Ibid. The Court offers no support for this stunning slur on the integrity of the Nation's courts. It is commonplace for the defense to request, at the conclusion of the prosecution's opening case, a directed verdict of acquittal. If the prosecution has failed to prove an element of the crime--even an element that is technical and rather obvious, such as movement of a car in interstate commerce--then the case must be dismissed. Until today one would not have thought that judges should be angered at the defense for making such motions, nor that counsel has some sort of obligation to avoid being troublesome when the prosecution has not done all the law requires to prove its case. </s> Second, even if the Court were right to expect trial judges to feel "antagonize[d]" by Melendez-Diaz objections and to then vent their anger by punishing the lawyer in some way, there is no authority to support the Court's suggestion that a lawyer may shirk his or her professional duties just to avoid judicial displeasure. There is good reason why the Court cites no authority for this suggestion--it is contrary to what some of us, at least, have long understood to be defense counsel's duty to be a zealous advocate for every client. This Court has recognized the bedrock principle that a competent criminal defense lawyer must put the prosecution to its proof: "[T]he adversarial process protected by the Sixth Amendment requires that the accused have 'counsel acting in the role of an advocate.' Anders v. California, 386 U.S. 738, 743 (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted ... the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated." United States v. Cronic, 466 U.S. 648, 656-657 (1984) (footnotes omitted). </s> See also ABA Model Code of Professional Responsibility, Canon 7-1, in ABA Compendium of Professional Responsibility Rules and Standards (2008) ("The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law..." (footnotes omitted)). </s> The instant case demonstrates how zealous defense counsel will defend their clients. To convict, the prosecution must prove the substance is cocaine. Under the Court's new rule, apparently only an analyst's testimony suffices to prove that fact. (Of course there will also be a large universe of other crimes, ranging from homicide to robbery, where scientific evidence is necessary to prove an element.) In cases where scientific evidence is necessary to prove an element of the crime, the Court's rule requires the prosecution to call the person identified as the analyst; this requirement has become a new prosecutorial duty linked with proving the State's case beyond a reasonable doubt. Unless the Court is ashamed of its new rule, it is inexplicable that the Court seeks to limit its damage by hoping that defense counsel will be derelict in their duty to insist that the prosecution prove its case. That is simply not the way the adversarial system works. </s> In any event, the Court's hope is sure to prove unfounded. The Court surmises that "[i]t is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis." Ante, at 22. This optimistic prediction misunderstands how criminal trials work. If the defense does not plan to challenge the test result, "highlight[ing]" that result through testimony does not harm the defense as the Court supposes. If the analyst cannot reach the courtroom in time to testify, however, a Melendez-Diaz objection grants the defense a great windfall: The analyst's work cannot come into evidence. Given the prospect of such a windfall (which may, in and of itself, secure an acquittal) few zealous advocates will pledge, prior to trial, not to raise a Melendez-Diaz objection. Defense counsel will accept the risk that the jury may hear the analyst's live testimony, in exchange for the chance that the analyst fails to appear and the government's case collapses. And if, as here, the defense is not that the substance was harmless, but instead that the accused did not possess it, the testimony of the technician is a formalism that does not detract from the defense case. </s> In further support of its unlikely hope, the Court relies on the Brief for Law Professors as Amici Curiae 7-8, which reports that nearly 95% of convictions are obtained via guilty plea and thus do not require in-court testimony from laboratory analysts. Ante, at 20. What the Court does not consider is how its holding will alter these statistics. The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial. Zealous counsel will insist upon concessions: a plea bargain, or a more lenient sentence in exchange for relinquishing this remarkable power. B </s> As further reassurance that the "sky will not fall after today's decision," ante, at 20, the Court notes that many States have enacted burden-shifting statutes that require the defendant to assert his Confrontation Clause right prior to trial or else "forfeit" it "by silence." Ibid. The Court implies that by shifting the burden to the defendant to take affirmative steps to produce the analyst, these statutes reduce the burden on the prosecution. The Court holds that these burden-shifting statutes are valid because, in the Court's view, they "shift no burden whatever." Ante, at 21. While this conclusion is welcome, the premise appears flawed. Even what the Court calls the "simplest form" of burden-shifting statutes do impose requirements on the defendant, who must make a formal demand, with proper service, well before trial. Some statutes impose more requirements, for instance by requiring defense counsel to subpoena the analyst, to show good cause for demanding the analyst's presence, or even to affirm under oath an intent to cross-examine the analyst. See generally Metzger, Cheating the Constitution, 59 Vand. L.Rev. 475, 481-485 (2006). In a future case, the Court may find that some of these more onerous burden-shifting statutes violate the Confrontation Clause because they "impos[e] a burden...on the defendant to bring ...adverse witnesses into court." Ante, at 19. </s> The burden-shifting statutes thus provide little reassurance that this case will not impose a meaningless formalism across the board. C </s> In a further effort to support its assessment that today's decision will not cause disruption, the Court cites 10 decisions from States that, the Court asserts, "have already adopted the constitutional rule we announce today." Ante, at 20, and n.11. The Court assures us that "there is no evidence that the criminal justice system has ground to a halt in the[se] States." Ante, at 20. On inspection, the citations prove far less reassuring than promised. Seven were decided by courts that considered themselves bound by Crawford. These cases thus offer no support for the Court's assertion that the state jurists independently "adopted" the Court's interpretation as a matter of state law. Quite the contrary, the debate in those seven courts was over just how far this Court intended Crawford to sweep. See, e.g., State v. Belvin, 986 So.2d 516, 526 (Fla. 2008) (Wells, J., concurring in part and dissenting in part) ("I believe that the majority has extended the Crawford and Davis decisions beyond their intended reach" (citations omitted)). The Court should correct these courts' overbroad reading of Crawford, not endorse it. Were the Court to do so, these seven jurisdictions might well change their position. </s> Moreover, because these seven courts only "adopted" the Court's position in the wake of Crawford, their decisions are all quite recent. These States have not yet been subject to the widespread, adverse results of the formalism the Court mandates today. </s> The citations also fail to reassure for a different reason. Five of the Court's 10 citations--including all 3 pre-Crawford cases--come from States that have reduced the confrontation right. Four States have enacted a burden-shifting statute requiring the defendant to give early notice of his intent to confront the analyst. See Part III-B, supra; Colorado: Hinojos-Mendoza v. People, 169 P. 3d 662, 668-671 (Colo. 2007), Colo. Rev. Stat. §16-3-309 (2008) (defendant must give notice 10 days before trial); Georgia: Compare Miller v. State, 266 Ga. 850, 854-855, 472 S. E. 2d 74, 78-79 (1996) (striking down earlier notice statute requiring defendant to show good cause, prior to trial, to call the analyst), with Ga. Code Ann. §35-3-154.1 (2006) (defendant must give notice 10 days before trial); Illinois: People v. McClanahan, 191 Ill. 2d 127, 133-134, 729 N. E. 2d 470, 474-475 (2000), Ill. Comp. Stat., ch. 725, §5/115-15 (2006) (defendant must give notice "within 7 days" of "receipt of the report"); Oregon: State v. Birchfield, 342 Ore., at 631-632, 157 P.3d, at 220 (suggesting that a "typical notice requirement" would be lawful), see Ore. Rev. Stat. §475.235 (2007) (defendant must give notice 15 days before trial). A fifth State, Mississippi, excuses the prosecution from producing the analyst who conducted the test, so long as it produces someone. Compare Barnette v. State, 481 So. 2d 788, 792 (Miss. 1985) (cited by the Court), with McGowen v. State, 859 So. 2d 320, 339-340 (Miss. 2003) (the Sixth Amendment does not require confrontation with the particular analyst who conducted the test). It is possible that neither Mississippi's practice nor the burden-shifting statutes can be reconciled with the Court's holding. See Part III-B, supra. The disruption caused by today's decision has yet to take place in these States. </s> *  *  * </s> Laboratory analysts who conduct routine scientific tests are not the kind of conventional witnesses to whom the Confrontation Clause refers. The judgment of the Appeals Court of Massachusetts should be affirmed. </s> AppendiXES A </s> The following authorities held, prior to Crawford, that the Confrontation Clause does not require confrontation of the analyst who conducted a routine scientific test: United States v. Vietor, 10 M.J. 69, 72 (Ct. Mil. App. 1980) (laboratory drug report); State v. Cosgrove, 181 Conn. 562, 574-578, 436 A.2d 33, 40-41 (1980) (same); Howard v. United States, 473 A.2d 835, 838-839 (D.C. 1984) (same); Baber v. State, 775 So.2d 258 (Fla. 2000) (blood-alcohol test); Commonwealth v. Harvard, 356 Mass. 452, 253 N.E. 2d 346 (1969) (laboratory drug report); DeRosa v. First Judicial Dist. Court of State ex rel. Carson City, 115 Nev. 225, 232-233, 985 P.2d 157, 162 (1999) (per curiam) (blood-alcohol test); State v. Coombs, 149 N.H. 319, 321-322, 821 A.2d 1030, 1032 (2003) (blood-alcohol test); State v. Fischer, 459 N.W. 2d 818 (N.D. 1990) (laboratory drug report); Commonwealth v. Carter, 593 Pa. 562, 932 A.2d 1261 (2007) (laboratory drug report; applying pre-Crawford law); State v. Tavares, 590 A.2d 867, 872-874 (R.I. 1991) (laboratory analysis of victim's bodily fluid); State v. Hutto, 325 S.C. 221, 228-230, 481 S.E. 2d 432, 436 (1997) (fingerprint); State v. Best, 146 Ariz. 1, 3-4, 703 P.2d 548, 550-551 (App. 1985) (same); State v. Christian, 119 N.M. 776, 895 P.2d 676 (App. 1995) (blood-alcohol test); State v. Sosa, 59 Wash. App. 678, 684-687, 800 P.2d 839, 843-844 (1990) (laboratory drug report). The following authorities held, prior to Crawford, that the Confrontation Clause does not require confrontation of the results of autopsy and hospital reports describing the victim's injuries: People v. Clark, 3 Cal. 4th 41, 157-159, 833 P.2d 561, 627-628 (1992) (autopsy report); Henson v. State, 332 A.2d 773, 774-776 (Del. 1975) (treating physician's report of victim's injuries, with medical conclusions redacted); Collins v. State, 267 Ind. 233, 235-236, 369 N.E. 2d 422, 423 (1977) (autopsy report); State v. Wilburn, 196 La. 113, 115-118, 198 So. 765, 765-766 (1940) (hospital record stating victim's cause of death) (citing State v. Parker, 7 La. Ann. 83 (1852) (coroner's written inquest stating cause of death)); State v. Garlick, 313 Md. 209, 223-225, 545 A.2d 27, 34 (1988) (blood test showing presence of illegal drug); People v. Kirtdoll, 391 Mich. 370, 385-391, 217 N.W. 2d 37, 46-48 (1974) (treating physician's report describing victim's injuries); State v. Spikes, 67 Ohio St. 2d 405, 411-415, 423 N.E. 2d 1122, 1128-1130 (1981) (treating physician's report of defendant's injuries); State v. Kreck, 86 Wash. 2d 112, 117-120, 542 P.2d 782, 786-787 (1975) (laboratory report stating that murder victim's blood contained poison). </s> The following authorities held, prior to Crawford, that the Confrontation Clause does not require confrontation of certificates stating that instruments were in good working order at the time of a test: State v. Ing, 53 Haw. 466, 467-473, 497 P.2d 575, 577-579 (1972) (certificate that police car's speedometer was in working order), accord, State v. Ofa, 9 Haw. App. 130, 135-139, 828 P.2d 813, 817-818 (1992) (per curiam) (certificate that breathalyzer was in working order); State v. Ruiz, 120 N.M. 534, 903 P.2d 845 (App. 1995) (same); State v. Dilliner, 212 W.Va. 135, 141-142, 569 S.E. 2d 211, 217-218 (2002) (same); State v. Huggins, 659 P.2d 613, 616-617 (Alaska App. 1982) (same); State v. Conway, 70 Ore. App. 721, 690 P.2d 1128 (1984) (same). </s> The following decisions reduced the right to confront the results of scientific tests by upholding burden-shifting statutes that require the defendant to take affirmative steps prior to trial to summon the analyst: Johnson v. State, 303 Ark. 12, 18-20, 792 S.W. 2d 863, 866-867 (1990) (defendant must give notice 10 days before trial); State v. Davison, 245 N.W. 2d 321 (Iowa 1976), Iowa Code Ann. §691.2 (2008) (same); State v. Crow, 266 Kan. 690, 974 P.2d 100 (1999) (defendant must give notice within 10 days of receiving the result and must show that the result will be challenged at trial); State v. Christianson, 404 A.2d 999 (Me. 1979) (defendant must give notice 10 days before trial); State v. Miller, 170 N.J. 417, 436-437, 790 A.2d 144, 156 (2002) (defendant must give notice within 10 days of receiving the result and must show that the result will be challenged at trial); State v. Smith, 312 N.C. 361, 381-382, 323 S. E. 2d 316, 328 (1984) (defendant must subpoena analyst); State v. Hancock, 317 Ore. 5, 9-12, 854 P.2d 926, 928-930 (1993) (same), but see State v. Birchfield, 342 Ore. 624, 157 P.3d 216 (reducing defendant's burden); State v. Hughes, 713 S.W. 2d 58 (1986) (defendant must subpoena analyst); Magruder v. Commonwealth, 275 Va. 283, 295-300, 657 S.E. 2d 113, 119-121 (2008) (defendant must "call the person performing such analysis," at the State's expense); People v. Mayfield-Ulloa, 817 P.2d 603 (Colo. App. 1991) (defendant must give notice to State and the analyst 10 days before trial); State v. Matthews, 632 So.2d 294, 300-302 (La. App. 1993) (defendant must give notice five days before trial). B </s> The following authorities hold that State Rules of Evidence permit the results of routine scientific tests to be admitted into evidence without confrontation: State v. Torres, 60 Haw. 271, 589 P.2d 83 (1978) (X ray of victim's body); State v. Davis, 269 N.W. 2d 434, 440 (Iowa 1978) (laboratory analysis of victim's bodily fluid); State v. Taylor, 486 S.W. 2d 239, 241-243 (Mo. 1972) (microscopic comparison of wood chip retrieved from defendant's clothing with wood at crime scene); State v. Snider, 168 Mont. 220, 229-230, 541 P.2d 1204, 1210 (1975) (laboratory drug report); People v. Porter, 46 App. Div. 2d 307, 311-313, 362 N.Y.S. 2d 249, 255-256 (1974) (blood-alcohol report); Robertson v. Commonwealth, 211 Va. 62, 64-68, 175 S.E. 2d 260, 262-264 (1970) (laboratory analysis of victim's bodily fluid); Kreck, 86 Wash. 2d, 117-120, 542 P.2d, 786-787 (laboratory report stating that murder victim's blood contained poison). The following authorities hold that State Rules of Evidence permit autopsy and hospital reports to be admitted into evidence without confrontation: People v. Williams, 174 Cal. App. 2d 364, 389-391, 345 P.2d 47, 63-64 (1959) (autopsy report); Henson, supra, at 775-776 (report of physician who examined victim); Wilburn, 196 La., at 115-118, 198 So., at 765-766 (hospital record stating victim's cause of death); Garlick, 313 Md., at 223-225, 545 A.2d, at 34 (blood test); State v. Reddick, 53 N.J. 66, 68-69, 248 A.2d 425, 426-427 (1968) (per curiam) (autopsy report stating factual findings, but not opinions, of medical examiner); People v. Nisonoff, 293 N.Y. 597, 59 N.E. 2d 420 (1944) (same). </s> The following authorities hold that State Rules of Evidence permit certificates, which state that scientific instruments were in good working order, to be admitted into evidence without confrontation: Wester v. State, 528 P.2d 1179, 1183 (Alaska 1974) (certificate stating that breathalyzer machine was in working order); Best v. State, 328 A.2d 141, 143 (Del. 1974) (certificate that breathalyzer was in working order); State v. Rines, 269 A.2d 9, 13-15 (Me. 1970) (manufacturer's certificate stating that blood-alcohol test kit was in working order admissible under the business-records exception); McIlwain v. State, 700 So.2d 586, 590-591 (Miss. 1997) (same). </s> Taking the minority view, the following authorities interpret state hearsay rules to require confrontation of the results of routine scientific tests or observations of medical personnel: State v. Sandoval-Tena, 138 Idaho 908, 912, 71 P.3d 1055, 1059 (2003) (laboratory drug report inadmissible under state hearsay rule); Spears v. State, 241 So.2d 148 (Miss. 1970) (nurse's observation of victim inadmissible under state hearsay rule and constitution); State v. James, 255 S.C. 365, 179 S.E. 2d 41 (1971) (chemical analysis of victim's bodily fluid inadmissible under state hearsay rule); Cole v. State, 839 S.W. 2d 798 (Tex. Ct. Crim. App. 1990) (laboratory drug report inadmissible under state hearsay rule); State v. Workman, 2005 UT 66, ¶¶9-20, 122 P.3d 639, 642-643 (same); State v. Williams, 2002 WI 58, ¶¶32-55, 253 Wis. 2d 99, 118-127, 644 N.W. 2d 919, 928-932 (same), but see id., at 109-117, 644 N.W. 2d, at 924-927 (no confrontation violation where expert testified based on test results prepared by an out-of-court analyst). </s> This summary does not include decisions that find test results inadmissible because the State failed to lay a proper foundation. Rather than endorse the minority view, those cases merely reaffirm the government's burden to prove the authenticity of its evidence and the applicability of an exception to the state hearsay rule. See, e.g., State v. Fisher, 178 N.W. 2d 380 (Iowa 1970) (laboratory test of victim's bodily fluid inadmissible under business-records exception because the prosecution did not show that it was kept in regular course of business); State v. Foster, 198 Kan. 52, 422 P.2d 964 (1967) (no foundation laid for introduction of blood-alcohol test because the prosecution did not show that the test was conducted in the usual course of business); Moon v. State, 300 Md. 354, 367-371, 478 A.2d 695, 702-703 (1984) (blood alcohol test inadmissible because insufficient foundational evidence that the test was conducted in a reliable manner); cf. Davis, 269 N.W. 2d, at 440 (laboratory test of victim's bodily fluid admitted under business-records exception to state hearsay rule); Garlick, 313 Md., at 215, n.2, 223-225, 545 A.2d, at 30, n.2, 34 (laboratory test of defendant's blood falls within "firmly rooted" hearsay exception). </s> Three States once espoused the minority view but appear to have changed course to some degree: People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940) (hospital record describing victim's injuries inadmissible hearsay), overruled by Kirtdoll, 391 Mich., at 372, 217 N.W. 2d, at 39 (noting that "in its 35 year long history, Lewis... has never been relied upon to actually deny admission into evidence of a business entry record in a criminal case"), but see People v. McDaniel, 469 Mich. 409, 670 N.W. 2d 659 (2003) (per curiam) (police laboratory report inadmissible hearsay); State v. Tims, 9 Ohio St. 2d 136, 137-138, 224 N.E. 2d 348, 350 (1967) (hospital record describing victim's injuries inadmissible hearsay), overruled by Spikes, 67 Ohio St. 2d, at 411-415, 423 N.E. 2d, at 1128-1130; State v. Henderson, 554 S.W. 2d 117 (Tenn. 1977) (laboratory drug report inadmissible absent confrontation), abrogated by statute as recognized by Hughes, 713 S.W. 2d 58 (statute permitted defendant to subpoena analyst who prepared blood alcohol report; by not doing so, defendant waived his right to confront the analyst). </s> FOOTNOTESFootnote 1Contrary to the dissent's suggestion, post, at 3-4, 7 (opinion of Kennedy, J.), we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. While the dissent is correct that "[i]t is the obligation of the prosecution to establish the chain of custody," post, at 7, this does not mean that everyone who laid hands on the evidence must be called. As stated in the dissent's own quotation, ibid., from United States v. Lott, 854 F.2d 244, 250 (CA7 1988), "gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility." It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. See infra, at 15-16, 18. Footnote 2The exception is a single pre-Roberts case that relied on longstanding Massachusetts precedent. See Commonwealth v. Harvard, 356 Mass. 452, 462, 253 N.E. 2d 346, 352 (1969). Others are simply irrelevant, since they involved medical reports created for treatment purposes, which would not be testimonial under our decision today. See, e.g., Baber v. State, 775 So.2d 258, 258-259 (Fla. 2000); State v. Garlick, 313 Md. 209, 223-225, 545 A.2d 27, 34-35 (1998). Footnote 3The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections. See infra, at 21. Footnote 4Respondent cites our decision in Gray v. Maryland, 523 U.S. 185 (1998). That case did indeed distinguish between evidence that is "incriminating on its face" and evidence that "bec[omes] incriminating ... only when linked with evidence introduced later at trial," id., at 191 (internal quotation marks omitted). But it did so for the entirely different purpose of determining when a nontestifying codefendant's confession, redacted to remove all mention of the defendant, could be admitted into evidence with instruction for the jury not to consider the confession as evidence against the nonconfessor. The very premise of the case was that, without the limiting instruction even admission of a redacted confession containing evidence of the latter sort would have violated the defendant's Sixth Amendment rights. See id., at 190-191. </s> Footnote 5Though surely not always. Some forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the specimens used for other analyses have often been lost or degraded. Footnote 6Contrary to the dissent's suggestion, post, at 23, we do not "rel[y] in such great measure" on the deficiencies of crime-lab analysts shown by this report to resolve the constitutional question presented in this case. The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa. We discuss the report only to refute the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism. Footnote 7The early common-law cases likewise involve records prepared for the administration of an entity's affairs, and not for use in litigation. See, e.g., King v. Rhodes, 1 Leach 24, 168 Eng. Rep. 115 (1742) (admitting into evidence ship's muster-book); King v. Martin, 2 Camp. 100, 101, 170 Eng. Rep. 1094, 1095 (1809) (vestry book); King v. Aickles, 1 Leach 390, 391-392, 168 Eng. Rep. 297, 298 (1785) (prison logbook). Footnote 8The dissent's reliance on our decision in Dowdell v. United States, 221 U.S. 325 (1911), see post, at 20 (opinion of Kennedy,J.), is similarly misplaced. As the opinion stated in Dowdell--and as this Court noted in Davis v. Washington, 547 U.S. 813, 825 (2006)--the judge and clerk who made the statements at issue in Dowdell were not witnesses for purposes of the Confrontation Clause because their statements concerned only the conduct of defendants' prior trial, not any facts regarding defendants' guilt or innocence. 221 U.S., at 330-331. Footnote 9An earlier line of 19th century state-court cases also supports the notion that forensic analysts' certificates were not admitted into evidence as public or business records. See Commonwealth v. Waite, 93 Mass. 264, 266 (1865); Shivers v. Newton, 45 N.J.L. 469, 476 (Sup. Ct. 1883); State v. Campbell, 64 N.H. 402, 403, 13 A. 585, 586 (1888). In all three cases, defendants--who were prosecuted for selling adulterated milk--objected to the admission of the state chemists' certificates of analysis. In all three cases, the objection was defeated because the chemist testified live at trial. That the prosecution came forward with live witnesses in all three cases suggests doubt as to the admissibility of the certificates without opportunity for cross-examination. Footnote 10The dissent provides some back-of-the-envelope calculations regarding the number of court appearances that will result from today's ruling. Post, at 13-14. Those numbers rely on various unfounded assumptions: that the prosecution will place into evidence a drug analysis certificate in every case; that the defendant will never stipulate to the nature of the controlled substance; that even where no such stipulation is made, every defendant will object to the evidence or otherwise demand the appearance of the analyst. These assumptions are wildly unrealistic, and, as discussed below, the figures they produce do not reflect what has in fact occurred in those jurisdictions that have already adopted the rule we announce today. Footnote 11State v. Johnson, 982 So. 2d 672, 680-681 (Fla. 2008); Hinojos-Mendoza v. People, 169 P. 3d 662, 666-667 (Colo. 2007); State v. Birchfield, 342 Ore. 624, 631-632, 157 P.3d 216, 220 (2007); State v. March, 216 S. W. 3d 663, 666-667 (Mo. 2007); Thomas v. United States, 914 A. 2d 1, 12-13 (D. C. 2006); State v. Caulfield, 722 N. W. 2d 304, 310 (Minn. 2006); Las Vegas v. Walsh, 121 Nev. 899, 904-906, 124 P. 3d 203, 207-208 (2005); People v. McClanahan, 191 Ill. 2d 127, 133-134, 729 N. E. 2d 470, 474-475 (2000); Miller v. State, 266 Ga. 850, 854-855, 472 S. E. 2d 74, 78-79 (1996); Barnette v. State, 481 So. 2d 788, 792 (Miss. 1985). Footnote 12As the dissent notes, post, at 27, some state statutes, "requir[e] defense counsel to subpoena the analyst, to show good cause for demanding the analyst's presence, or even to affirm under oath an intent to cross-examine the analyst." We have no occasion today to pass on the constitutionality of every variety of statute commonly given the notice-and-demand label. It suffices to say that what we have referred to as the "simplest form [of] notice-and-demand statutes," supra, at 21, is constitutional; that such provisions are in place in a number of States; and that in those States, and in other States that require confrontation without notice-and-demand, there is no indication that the dire consequences predicted by the dissent have materialized. Footnote 13Contrary to the dissent's suggestion, post, at 24-25, we do not cast aspersions on trial judges, who we trust will not be antagonized by good-faith requests for analysts' appearance at trial. Nor do we expect defense attorneys to refrain from zealous representation of their clients. We simply do not expect defense attorneys to believe that their clients' interests (or their own) are furthered by objections to analysts' reports whose conclusions counsel have no intention of challenging. Footnote 14We of course express no view as to whether the error was harmless. The Massachusetts Court of Appeals did not reach that question and we decline to address it in the first instance. Cf. Coy v. Iowa, 487 U.S. 1012, 1021-1022 (1988). In connection with that determination, however, we disagree with the dissent's contention, post, at 25, that "only an analyst's testimony suffices to prove [the] fact" that "the substance is cocaine." Today's opinion, while insisting upon retention of the confrontation requirement, in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction.

United States Supreme Court HERMAN v. CLAUDY(1956) No. 45 Argued: November 14, 1955Decided: January 9, 1956 </s> In a state court, petitioner pleaded guilty to numerous charges of burglary, larceny, forgery and false pretense, and he was sentenced to imprisonment for terms aggregating from 17 1/2 to 35 years. Eight years later, he petitioned the same court for habeas corpus, claiming that his conviction was invalid under the Due Process Clause of the Fourteenth Amendment, because (1) his pleas of guilty resulted from coercion and threats by state officers, and (2) he was never advised of his right to counsel or given the benefit of counsel. The District Attorney filed an answer challenging the materiality of some of petitioner's allegations, denying others and urging that the writ be refused because of petitioner's tardiness in challenging the judgment. The petition was dismissed summarily without a hearing. Held: Petitioner was entitled to a hearing and the judgment is reversed. Pp. 117-123. </s> (a) Petitioner's allegations as to his treatment prior to confession and his understanding of the nature and consequences of a guilty plea present the very kind of dispute that should be decided only after a hearing. Pp. 119-121. </s> (b) Neither petitioner's statement at his trial that he was guilty and threw himself upon the mercy of the court nor any other statements made by him at that time were in themselves sufficient to refute as frivolous or false the allegations in his petition for habeas corpus concerning matters not shown by the record. P. 121. </s> (c) The number and complexity of the charges against petitioner, as well as their seriousness, create a strong conviction that no layman could have understood the accusations and that petitioner should have been advised of his right to be represented by counsel. P. 122. </s> (d) The mere fact that petitioner had, without benefit of counsel, pleaded guilty to an offense two years before did not show that he had the capacity to defend himself against the numerous charges here. Gibbs v. Burke, 337 U.S. 773 ; Uveges v. Pennsylvania, 335 U.S. 437 . Pp. 122-123. [350 U.S. 116, 117] </s> (e) Petitioner was not barred from presenting his challenge to the conviction, although eight years had passed before his petition for habeas corpus was filed. Uveges v. Pennsylvania, supra; Palmer v. Ashe, 342 U.S. 134 . P. 123. </s> (f) Petitioner's allegations were sufficient to entitle him to relief, if proven. Pp. 119-120, 123. </s> (g) Petitioner cannot be denied a hearing merely because the allegations of his petition were contradicted by the prosecuting officers, and he is entitled to relief if he can prove his charges. P. 123. </s> Reversed and remanded. </s> Herbert Monte Levy and Marjorie Hanson Matson argued the cause and filed a brief for petitioner. </s> Wray G. Zelt, Jr. argued the cause for respondent. With him on the brief were Harold V. Fergus and John F. Roney. </s> MR. JUSTICE BLACK delivered the opinion of the Court. </s> In 1945 petitioner Stephen Herman pleaded guilty in a Pennsylvania state court to 8 charges of burglary, 12 of larceny, 8 of forgery, and 2 of false pretense. 1 He was sentenced to serve 17 1/2 to 35 years in the penitentiary, 2 1/2 to 5 years on each of the charges, some running consecutively, some concurrently. Eight years later, in 1953, he filed this petition for habeas corpus in the same Pennsylvania court, asking that his conviction be held invalid as in violation of the Due Process Clause of the Fourteenth Amendment. He alleged: (1) that his pleas of guilty were the result of coercion and threats by state officers and (2) that at no stage of the proceedings was he either advised of his right to or given the benefit of counsel. The District Attorney filed an answer challenging the materiality of some of petitioner's allegations, [350 U.S. 116, 118] denying others, and urging that the writ be refused because of petitioner's tardiness in challenging the judgment. He asked that the petition be summarily dismissed on the ground that "it would be a waste of time and very expensive for Washington Country to have this defendant go into a hearing to prove charges that he could have raised at the time he was sentenced by this Court." The petition was summarily dismissed without a hearing by the same trial judge who had sentenced petitioner. </s> On appeal, the Superior Court of the Commonwealth of Pennsylvania affirmed the dismissal. 176 Pa. Super. 387, 107 A. 2d 595. The Supreme Court of Pennsylvania denied leave to appeal without opinion. We granted certiorari, 349 U.S. 904 , because summary dismissal in the face of the petitioner's serious allegations appeared to be out of line with decisions of this Court. </s> Our prior decisions have established that: (1) a conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause; 2 (2) where a person convicted in a state court has not intelligently and understandingly waived the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the Due Process Clause invalidates his conviction; 3 (3) where a denial of these constitutional protections is alleged in an [350 U.S. 116, 119] appropriate proceeding by factual allegations not patently frivolous or false on a consideration of the whole record, the proceeding should not be summarily dismissed merely because a state prosecuting officer files an answer denying some or all of the allegations. 4 </s> In the light of our previous holdings we now consider the allegations of the petition for habeas corpus and the prosecuting officer's answer. The petition alleged: </s> Petitioner, who had been to school only 6 years, was 21 years old when arrested. His only prior experience with criminal procedure was 2 years earlier, when without the benefit of counsel he pleaded guilty to charges of burglary, larceny, and forgery, and was sentenced to 6 to 12 months in jail. After his arrest on the present charges he was held incommunicado for 3 days. During this period a state trooper grabbed him by the neck and threatened to choke him if he did not confess, and there were threats against the safety of his wife and daughter. Petitioner finally confessed after 72 hours of intermittent questioning and was taken to a justice of the peace. He waived indictment and agreed to plead guilty to 3 charges. More than a month later he was taken before the Court of Common Pleas and charged with some 30 offenses. The assistant prosecuting attorney demanded that petitioner sign a plea of guilty to all the charges. When petitioner asked what he was signing, the assistant prosecuting attorney said "Sign your name and forget it." Petitioner was not informed of the seriousness of the charges by the prosecutor or the judge; he did not know that his plea of guilty could result in a maximum sentence of some 315 years; he did not know nor was he informed that he could have counsel. [350 U.S. 116, 120] Petitioner pleaded guilty to all of the charges against him. He now says he was innocent of all but one. </s> The District Attorney's answer alleged: It was immaterial that petitioner was only 21 years old and of limited educational background. Since petitioner had previous experience in criminal procedure from the former case in which he pleaded guilty, he understood his rights and was barred from alleging that his lack of criminal experience violated due process. It was not necessary that a defendant should have the advice, support, and assistance of relatives or friends even if it be assumed that there was anything in the record to show that such an opportunity was denied to petitioner. Petitioner had no constitutional right to be informed by the court or prosecuting attorney of his right to counsel or of the severity of the sentences which might be imposed upon him. There was no showing that petitioner had been injured by not having counsel. The District Attorney did not deny that petitioner had been told in the courtroom to "Sign your name and forget it," but denied only "that the statements were made by the Assistant District Attorney in order to obtain pleas to the charges involved." The District Attorney defended the State's right to confine petitioner for a period of 72 hours on the ground that this was not "an unreasonable length of time to hold a defendant." The charge that the officers threatened the safety of petitioner's wife and daughter was specifically denied as untrue, as was the charge that petitioner was grabbed by the neck. The answer alleged that petitioner's confession was wholly voluntary. </s> The foregoing narrative of the allegations in the petition and the answer reveals a sharp dispute as to the facts material to a determination of the constitutional questions involved. The allegations as to petitioner's treatment prior to confession and his understanding of the nature and consequences of a guilty plea present the very [350 U.S. 116, 121] kind of dispute which should be decided only after a hearing. It is true that the trial record shows that petitioner told the judge that he was guilty and said "I throw myself at the mercy of the court, Your Honor." But neither these nor any other statements made before the trial judge at that time 5 are in themselves sufficient to refute as frivolous or false the serious charges made by the petitioner concerning matters not shown by the record. [350 U.S. 116, 122] See Palmer v. Ashe, 342 U.S. 134, 137 . It is entirely possible that petitioner's prior confession caused him, in the absence of counsel, to enter the guilty plea. Moreover, the number and complexity of the charges against petitioner, as well as their seriousness, create a strong conviction that no layman could have understood the accusations and that petitioner should, therefore, have been advised of his right to be represented by counsel. We cannot agree with the Pennsylvania Superior Court that the mere fact that petitioner had, without the benefit of counsel, pleaded guilty to an offense 2 years before showed that he had the capacity to defend himself against the 30 charges here. We held in Gibbs v. Burke, 337 U.S. 773 , [350 U.S. 116, 123] that in spite of Gibbs' conviction in 6 prior criminal cases the circumstances showed he was entitled to the benefit of counsel. In Uveges v. Pennsylvania, 335 U.S. 437 , where the facts were strikingly similar to those presented here, we held that representation by counsel was required by the Due Process Clause. Nor was petitioner barred from presenting his challenge to the conviction because 8 years had passed before this action was commenced. Uveges did not challenge his conviction for 7 years. 335 U.S. 437, 438 -439. And in a later case we held that a prisoner could challenge the validity of his conviction 18 years after he had been convicted. Palmer v. Ashe, 342 U.S. 134 . The sound premise upon which these holdings rested is that men incarcerated in flagrant violation of their constitutional rights have a remedy. </s> The chief argument made by the State here in support of the court's summary dismissal of the petition is this: "Counsel for petitioner argues that since facts are alleged in the petition, a hearing must be held. Since our answer contradicted the allegations in the petition, the lower court was not required to grant a hearing. This contention was sustained by the Superior Court." We cannot accept this argument. Under the allegations here petitioner is entitled to relief if he can prove his charges. He cannot be denied a hearing merely because the allegations of his petition were contradicted by the prosecuting officers. </s> The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion. </s> Reversed and remanded. </s> Footnotes [Footnote 1 The courts below so computed the charges. Petitioner counts only 27 charges. The record casts doubt on the accuracy of both computations. </s> [Footnote 2 E. g., Brown v. Mississippi, 297 U.S. 278 ; Chambers v. Florida, 309 U.S. 227 ; Watts v. Indiana, 338 U.S. 49 ; Turner v. Pennsylvania, 338 U.S. 62 ; Harris v. South Carolina, 338 U.S. 68 ; Leyra v. Denno, 347 U.S. 556 . </s> [Footnote 3 E. g., Uveges v. Pennsylvania, 335 U.S. 437 ; Gibbs v. Burke, 337 U.S. 773 ; Rice v. Olson, 324 U.S. 786 ; Von Moltke v. Gillies, 332 U.S. 708 ; Palmer v. Ashe, 342 U.S. 134 ; Bute v. Illinois, 333 U.S. 640 ; Betts v. Brady, 316 U.S. 455 . It was pointed out in the Uveges case that a minority of the Court have contended that all persons charged with crimes are entitled to counsel under the Sixth and Fourteenth Amendments. </s> [Footnote 4 E. g., Smith v. O'Grady, 312 U.S. 329 ; Hawk v. Olson, 326 U.S. 271 ; Palmer v. Ashe, 342 U.S. 134 ; Chessman v. Teets, 350 U.S. 3 . Cf. Moore v. Dempsey, 261 U.S. 86, 92 ; Walker v. Johnston, 312 U.S. 275 . </s> [Footnote 5 When petitioner was brought before the trial judge to plead guilty the prosecuting attorney talked at length about the charges against petitioner, but said nothing about sentences which could be imposed. Petitioner's part in these proceedings was very small. The following is the full record of his participation: </s> [Mr. Docktor (the prosecuting attorney):] ". . . How old are you now? </s> "By the Defendant: Twenty-one. </s> "By Mr. Docktor: Twenty-one years of age. Is there anything you wish to state to the Court about your case? </s> "By the Defendant: I throw myself - </s> "By the Court: You will have to speak louder. </s> "By the Defendant: I throw myself at the mercy of the court, Your Honor. </s> "By Mr. Docktor: I wish to state for the record that the informations and prosecutions were made by H. M. Jaynes of the Pennsylvania State Police. </s> "By the Court (addressing Defendant): Where have you worked since you were paroled? </s> "By the Defendant: I worked at the Hazel. </s> "By the Court (addressing Defendant): Have you been working all of the time since you were paroled in 1943? </s> "By the Defendant: No, sir. </s> "By the Court: 1944 I believe it was, wasn't it? </s> "By the Defendant: No, sir; I was working at the hospital, too. </s> "By the Court: Sir? </s> "By the Defendant: I was working at the hospital and Hazel. </s> "By the Court: At the hospital? </s> "By the Defendant: Yes. </s> "By the Court: How did you come to be working at the hospital? </s> "By the Defendant: I worked there. I was paroled for that. </s> "By the Court: You are the fellow who ran away from there while [350 U.S. 116, 122] you were on parole. </s> "By the Defendant: That is right; yes, sir. </s> "By the Court: Will you explain to me why the Court should extend any leniency to you? </s> "By the Defendant: No, sir. </s> "By the Court: We have trusted you twice before and you have never complied with any of the conditions that you were paroled on. </s> "By the Defendant: I tried to. </s> "By the Court: You didn't even try to. You could have continued to work up there and you wouldn't do that. Where did you go to when you ran away from the job at the hospital? </s> "By the Defendant: I started to work down at Hazel. </s> "By the Court: You were working around this town - </s> "By the Defendant: Yes, sir. </s> "By the Court: - while the officers were searching for you? </s> "By the Defendant: No. </s> "By the Court: Where were you? </s> "By the Defendant: I was here in town but not working. </s> "By the Court: You secured your parole on promise of good behavior. </s> "By the Defendant: Yes, sir. </s> "By the Court: In the meantime, you have committed numerous burglaries and forgeries and various felonies? </s> "By the Defendant: Yes, sir. </s> "By the Court: Now you want the Court to have mercy. There is an end to being merciful. We did that in 1944. . . ." </s> [350 U.S. 116, 124]

United States Supreme Court PARSONS v. SMITH(1959) No. 218 Argued: March 4, 1959Decided: April 6, 1959 </s> Under contracts with the owners of coal-bearing lands, which were terminable by the owners on short notice without cause, petitioners strip mined coal for the owners and received for their services a fixed price per ton of coal extracted and delivered. Petitioners were not entitled to keep or sell any of the coal but were required to deliver all they mined to the owners. Held: Petitioners were not entitled to percentage depletion deductions under 23 (m) and 114 (b) (4) of the Internal Revenue Code of 1939 on the amounts received by them for their strip mining operations, since they had no capital investment or economic interest in the coal in place. Pp. 216-226. </s> 255 F.2d 595, 599, affirmed. </s> [Footnote * Together with No. 305, Huss et al. v. Smith, Former Collector of Internal Revenue, also on certiorari to the same Court. </s> Sherwin T. McDowell argued the cause for petitioners in No. 218. With him on the brief were William R. Spofford and Charles I. Thompson, Jr. </s> David Berger argued the cause for petitioners in No. 305. With him on the brief was Leon H. Kline. </s> Howard A. Heffron argued the causes for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Rice, Daniel M. Friedman and Marvin W. Weinstein. </s> Edgar J. Goodrich and Lipman Redman filed a brief for the Estate of John Schumacher, as amicus curiae, urging reversal. </s> Frederick Bernays Wiener and Le Roy Katz filed a brief in No. 218 for Paragon Jewel Coal Co., Inc., as amicus curiae, urging affirmance. [359 U.S. 215, 216] </s> MR. JUSTICE WHITTAKER delivered the opinion of the Court. </s> These tax refund cases present the question whether petitioners, Parsons in No. 218 and Huss in No. 305, are entitled to an allowance for depletion on amounts received by them under contracts with the owners of coal-bearing lands for the strip mining of coal from those lands and the delivery of it to the landowners. The cases were heard by the same courts below. The District Court ruled that petitioners had no depletable interest in the coal in place and rendered judgment for the respondent - collector in each case. The Court of Appeals affirmed both judgments. 255 F.2d 595, 599. Because of an asserted conflict with the principles applicable under the decisions of this Court, we granted certiorari in both cases. 358 U.S. 814 . </s> The pertinent facts in each case were found by the District Court and are not challenged here. In substance, they are as follows: </s> PARSONS, No. 218. Petitioners were members of a partnership ("Parsons") which, until the transactions involved here, was primarily engaged in road building. Rockhill Coal Co. ("Rockhill") owned bituminous coal-bearing lands in Pennsylvania. Much of the coal was located relatively near the surface and was therefore removable by the strip mining process. 1 In 1942 Parsons expressed a desire to strip mine coal from Rockhill's lands, but it refused to sign the written contract offered because the firm did not wish to be bound by a contract "which would take a long time, since, if an opportunity opened up, [it] wanted to go back to road building." It was then agreed that Parsons would, and it did, proceed under [359 U.S. 215, 217] an oral agreement. Under that agreement Parsons was to strip mine coal from such sites and seams, within a generally described area of Rockhill's lands, as were designated by Rockhill. Parsons was to furnish at its own expense all of the equipment, facilities and labor which it thought necessary to strip mine and deliver the coal to Rockhill's cars at a fixed point. For each ton of coal so mined and delivered Rockhill was to pay Parsons a stated amount of money. 2 Parsons was not authorized to keep or sell any of the coal but was required to deliver all that was mined to Rockhill. The agreement was not for a definite term, nor did it obligate Parsons to mine the tract to exhaustion, but, to the contrary, it was agreed that "if Parsons or Rockhill wanted to quit, all that was necessary to terminate the arrangement was the giving of a ten-day notice." However, if Rockhill thus canceled the agreement and if "Parsons had previously gone to the expense of removing the overburden (thereby performing the heavy part of the work, as well as meeting wages and expenses in so doing), then Parsons would have the privilege of taking out the coal [so uncovered] and of being paid for it [even though] this took more than ten days." Operations continued under the agreement without notice of termination until August 1, 1950, when Parsons gave Rockhill notice that it would "quit" the work on September 1, 1950, and it ceased these operations on or near that date. Large amounts of strippable coal still remained on the tract and strip mining thereon was continued by another contractor. Parsons' investment in equipment used in the work ran from a low in 1943 of $60,000 to a high in 1947 of $250,000. The equipment was movable [359 U.S. 215, 218] and there is no evidence that it was not usable elsewhere or for other purposes. </s> HUSS, No. 305. Petitioners were members of a partnership ("Huss") engaged in the business of strip mining coal. Philadelphia and Reading Coal & Iron Co. ("Reading") owned anthracite coal-bearing lands in Schuylkill County, Pennsylvania. Much of the coal was so located that it could be removed by strip mining. In 1944 Reading and Huss entered into a written contract 3 under which Huss undertook to strip mine the coal from such areas, within a generally described tract of Reading's land, as might be designated by Reading and that was not lying deeper than a prescribed distance from the surface. Huss was to furnish at its own expense all of the equipment, facilities and labor necessary to mine and deliver the coal to Reading's colliery. For each ton of coal so mined and delivered Reading was to pay Huss a stated sum. 4 That sum was agreed to be in "full compensation for the full performance of all work and for the furnishing of all material, labor, power, tools, machinery, implements and equipment required for the work." Huss was not authorized to keep or sell any of the coal. The contract was expressly terminable by Reading at any time upon 30 days' written notice "without specifying any reason therefor" and without liability for "any loss of anticipated profits or any other damages whatever." This right of termination was not exercised. Operations continued under the contract until July 1947, by which time [359 U.S. 215, 219] Huss had mined most of the strippable coal on the lands covered by the contract that lay within the stipulated distance from the surface, and the contract was then canceled by mutual agreement. Huss' investment in equipment used in the work ran from a low in 1944 of $100,000 to a high in 1947 of $500,000. All of the equipment was movable and usable elsewhere in strip mining and some of it was usable for other purposes. </s> Whether a deduction from gross income shall be permitted for depletion of mineral deposits, or any interest therein, is entirely a matter of grace. 5 We therefore must look, first, to the provisions and purposes of the statutes and to the decisions construing them to see what interests are permitted a deduction for depletion, and, next, to the contracts involved to see whether they gave to petitioners such an interest. </s> The applicable statutes are 23 (m) and 114 (b) (4) (A) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) 23 (m) and 26 U.S.C. (1946 ed.) 114 (b) (4) (A). Section 23 (m) directs that a reasonable allowance for depletion shall be made "in the case of mines, . . . according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary," and that "[i]n the case of leases the deductions shall be equitably apportioned between the lessor and lessee." And 114 (b) (4) (A) provides that the allowance shall be, "in the case of coal mines, 5 percentum . . . of the gross income from [mining] 6 the property during the taxable year, excluding [359 U.S. 215, 220] . . . any rents or royalties paid or incurred by the taxpayer in respect of the property." </s> The purpose of the deduction for depletion is plain and has been many times declared by this Court. "It is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production." Helvering v. Bankline Oil Co., 303 U.S. 362, 366 . And see United States v. Ludey, 274 U.S. 295, 302 ; Helvering v. Elbe Oil Land Development Co., 303 U.S. 372, 375 ; Anderson v. Helvering, 310 U.S. 404, 408 ; Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 603 . "[The depletion] exclusion is designed to permit a recoupment of the owner's capital investment in the minerals so that when the minerals are exhausted, the owner's capital is unimpaired." Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312 . Save for its application only to gross income from mineral deposits and standing timber, the purpose of "the deduction for depletion does not differ from the deduction for depreciation." United States v. Ludey, 274 U.S., at 303 . In short, the purpose of the depletion deduction is to permit the owner of a capital interest in mineral in place to make a tax-free recovery of that depleting capital asset. </s> Although the sentence in 23 (m) that "In the case of leases the deductions shall be equitably apportioned between the lessor and lessee" presupposes "that the deductions may be allowed in other cases" (Palmer v. Bender, 287 U.S. 551, 557 ), the statute "must be read in the light of the requirement of apportionment of a single depletion allowance" (Helvering v. Twin Bell Oil Syndicate, 293 U.S. 312, 321 ), for two or more persons "cannot be entitled to depletion on the same income" (Commissioner v. Southwest Exploration Co., 350 U.S. 308, 309 ). It follows that if petitioners are entitled to a depletion allowance on the amounts earned under their contracts, [359 U.S. 215, 221] the amounts allowable to the landowners for the depletion of their coal deposits would be correspondingly reduced. </s> Dealing specifically with the problem of what interests in mineral deposits were permitted a deduction for depletion under the practically identical predecessors of 23 (m) and 114, this Court said in Palmer v. Bender, 287 U.S. 551, 557 : "The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital." The Court further said that the deduction is not "dependent upon the particular legal form of the taxpayer's interest in the property to be depleted, [and that] [i]t is enough if . . . he has retained a right to share in the oil produced. If so he has an economic interest in the oil, in place, which is depleted by production." 7 Ibid. (Emphasis added.) The Court went on to hold that lessees of oil producing properties, by reserving from an assignment a royalty of "one-eighth of all the oil produced and saved," retained [359 U.S. 215, 222] an economic interest in the oil in place and were therefore entitled to an allowance for depletion against their gross income from that interest. </s> Five years later, in 1938, the Court in Helvering v. Bankline Oil Co., 303 U.S. 362 , reaffirmed the test laid down in Palmer and added: "But the phrase `economic interest' is not to be taken as embracing a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit." 303 U.S., at 367 . Applying that principle, the Court held that a processor who, by contracts with the owners of gas and oil wells, had acquired the right to take wet gas from the wellheads and to extract and sell the gasoline therefrom, paying the well owners a percentage of the proceeds of such sales, had not acquired an economic interest in the depleting gas in place but only an economic advantage to be derived from the processing operations, and that therefore the [359 U.S. 215, 223] income from those operations was not subject to the depletion deduction. </s> In his first regulations prescribed under the Internal Revenue Act of 1939, the Commissioner adopted almost literally the language we have quoted from Palmer and Bankline as the tests to be administratively applied in determining what interests in mineral deposits are entitled to the depletion allowance. See Treas. Reg. 103, 19.23 (m)-1, August 23, 1939. That language, with immaterial changes, has remained in the regulations ever since. During the years here involved, 1942 through 1950, the regulation in force was Treas. Reg. 111, 29.23 (m)-1, which, in pertinent part, provides: </s> "Under [the provisions of 23 (m) and 114] the owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because, through a contractual relation to the owner, he possesses a mere economic advantage derived from production . . . ." </s> Such are the interests that are permitted a deduction for depletion by the statutes as consistently interpreted by this Court and by the Commissioner. </s> Petitioners do not dispute that these are the controlling principles, but rather they contend that they come within those that allow the deduction. They argue that by their contracts to mine the coal, and particularly by contributing [359 U.S. 215, 224] their equipment, organizations and skills to the mining project as required by those contracts, they, in legal effect, made a capital investment in, and thereby acquired an economic interest in, the coal in place, which was depletable by production, and that they are therefore entitled to take the deduction against their gross income derived from those mining operations. </s> We take a different view. It stands admitted that before and apart from their contracts, petitioners had no investment or interest in the coal in place. Their asserted right to the deduction rests entirely upon their contracts. Is there anything in those contracts to indicate that petitioners made a capital investment in, or acquired an economic interest in, the coal in place, as distinguished from the acquisition of a mere economic advantage to be derived from their mining operations? We think it is quite plain that there is not. </s> By their contracts, which were completely terminable without cause on short notice, petitioners simply agreed to provide the equipment and do the work required to strip mine coal from designated lands of the landowners and to deliver the coal to the latter at stated points, and in full consideration for performance of that undertaking the landowners were to pay to petitioners a fixed sum per ton. Surely those agreements do not show or suggest that petitioners actually made any capital investment in the coal in place, or that the landowners were to or actually did in any way surrender to petitioners any part of their capital interest in the coal in place. Petitioners do not factually assert otherwise. Their claim to the contrary is based wholly upon an asserted legal fiction. As stated, they claim that their contractual right to mine coal from the designated lands and the use of their equipment, organizations and skills in doing so, should be regarded as the making of a capital investment in, and the acquisition of an economic interest in, the coal in place. [359 U.S. 215, 225] But that fiction cannot be indulged here, for it is negated by the facts. </s> To recapitulate, the asserted fiction is opposed to the facts (1) that petitioners' investments were in their equipment, all of which was movable - not in the coal in place; (2) that their investments in equipment were recoverable through depreciation - not depletion; (3) that the contracts were completely terminable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to petitioners any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that petitioners could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that petitioners were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss, agreed to be in "full compensation for the full performance of all work and for the furnishing of all [labor] and equipment required for the work"; and (7) that petitioners, thus, agreed to look only to the landowners for all sums to become due them under their contracts. The agreement of the landowners to pay a fixed sum per ton for mining and delivering the coal "was a personal covenant and did not purport to grant [petitioners] an interest in the [coal in place]." Helvering v. O'Donnell, 303 U.S. 370, 372 . Surely these facts show that petitioners did not actually make any capital investment in, or acquire any economic interest in, the coal in place, and that they may not fictionally be regarded as having done so. </s> "Undoubtedly, [petitioners] through [their] contracts obtained an economic advantage from [their] production of the [coal], but that is not sufficient. The controlling fact is that [petitioners] had no interest in the [coal] in [359 U.S. 215, 226] place." Helvering v. Bankline Oil Co., 303 U.S., at 368 . Of course, the parties might have provided in their contracts that petitioners would have some capital interest in the coal in place, but they did not do so - apparently by design. Instead, petitioners simply entered into contracts, terminable without cause on short notice, with the owners of coal-bearing lands to provide the equipment and do the work required to strip mine and deliver coal from those lands, as independent contractors, for fixed unit prices. "[Petitioners thus] bargained for and obtained an economic advantage from the [mining] operations but that advantage or profit did not constitute a depletable interest in the [coal] in place" (Helvering v. O'Donnell, 303 U.S., at 372 ), and having "no capital investment in the mineral deposit which suffered depletion, [petitioners are] not entitled to the statutory allowance" (Helvering v. Bankline Oil Co., 303 U.S., at 368 ). The judgments must therefore be </s> Affirmed. </s> Footnotes [Footnote 1 Strip mining is done from the surface of the earth. In general, it is performed by stripping off the earth, known as overburden, which lies over the coal and then removing the coal so uncovered. </s> [Footnote 2 It was contemplated by the parties that in the event of an increase in the union labor wage scale the amount per ton to be paid to Parsons would be increased and on several occasions it was increased to cover higher costs for both labor and material used in the work. </s> [Footnote 3 During the tax years involved, which were 1944 to 1947, other like contracts were entered into by the parties, but they were all identical, except for areas covered and prices per ton to be paid to Huss, and it will therefore be unnecessary to treat with them individually. </s> [Footnote 4 The contract provided, however, that in the event of an increase in the union labor wage scale the amount per ton to be paid to Huss would be, and on several occasions during the operation it was, increased sufficiently to cover increased labor costs. </s> [Footnote 5 Helvering v. Bankline Oil Co., 303 U.S. 362, 366 ; Anderson v. Helvering, 310 U.S. 404, 408 ; Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312 . </s> [Footnote 6 Section 114 (b) (4) (B) provided that "the term `gross income from the property' means the gross income from mining." 26 U.S.C. (1946 ed.) 114 (b) (4) (B). </s> [Footnote 7 The principles declared in the Palmer case have been recognized and applied by every subsequent decision of this Court that has treated with the subject. </s> Helvering v. Bankline Oil Co., 303 U.S. 362, 367 , literally adopted the language of the Palmer case upon the point. </s> In Helvering v. O'Donnell, 303 U.S. 370, 371 , it was said: "The question is whether respondent had an interest, that is, a capital investment, in the oil and gas in place. . . . Palmer v. Bender, 287 U.S. 551, 557 ; Helvering v. Twin Bell Oil Syndicate, 293 U.S. 312, 321 ; Thomas v. Perkins, 301 U.S. 655, 661 ; Helvering v. Bankline Oil Co., supra." </s> Helvering v. Elbe Oil Land Development Co., 303 U.S. 372, 375 -376, declared that "The words `gross income from the property,' as used in the statute governing the allowance for depletion, mean gross income received from the operation of the oil and gas wells by one [359 U.S. 215, 222] who has a capital investment therein, - not income from the sale of the oil and gas properties themselves." </s> Anderson v. Helvering, 310 U.S. 404, 408 -409, repeated the statement last quoted. </s> In Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 603 , the Court said: "The test of the right to depletion is whether the taxpayer has a capital investment in the oil in place which is necessarily reduced as the oil is extracted." </s> In Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 32 , the Court said: "It seems generally accepted that it is the owner of a capital investment or economic interest in the oil in place who is entitled to the depletion." </s> Commissioner v. Southwest Exploration Co., 350 U.S. 308, 314 , reannounced substantially the rule declared in the Palmer case. It said "that a taxpayer is entitled to depletion where he has: (1) `acquired, by investment, any interest in the oil in place,' and (2) secured by legal relationship `income derived from the extraction of the oil, to which he must look for a return of his capital.' . . . These two factors, usually considered together, constitute the requirement of `an economic interest.'" </s> [359 U.S. 215, 227]

United States Supreme Court STANDARD INDUSTRIES, INC. v. TIGRETT INDUSTRIES, INC.(1970) No. 445 Argued: March 2, 1970Decided: April 20, 1970 </s> Rehearing Denied June 1, 1970. See 398 U.S. 944 . Walton Bader, New York City, for petitioner. Lawrence G. Wallace, Washington, D.C., for the United States, as amicus curiae, by special leave of Court. Ralph W. Kalish, St. Louis, Mo., for respondents. Sidney Neuman, Chicago, Ill., for American Patent Law Association, as amicus curiae. </s> PER CURIAM. </s> The judgments are affirmed by an equally divided Court. Affirmed. </s> Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting. In this case respondents sued petitioner for payments alleged to be due under a patent-licensing agreement. At trial and on appeal petitioner defended primarily on the ground that its product did not involve any use of the respondent's patent. Petitioner did not at any time attack the validity of the patent itself, and apparently conceded that controlling law prevented it from doing so. The District Court found that the product did utilize the patented invention and awarded damages. The Court </s> [397 U.S. 586 , 587] </s> of Appeals for the Sixth Circuit affirmed in an opinion delivered May 27, 1969, 411 F.2d 1218 (1969). On June 16, 1969, this Court decided in Lear, Inc. v. Adkins, 395 U.S. 653 , that a patent licensee could attack the validity of a patent. That case specifically overruled the patent- licensee estoppel doctrine applied in Automatic Radio Mfg. Co. v. Hazaltine Research, Inc., 339 U.S. 827 (1950), a doctrine that was the controlling law at all times in the proceedings below. Petitioner now seeks to attack the validity of the patent, but respondents argue that since the issue was never raised below, it cannot now be litigated. The failure to assert invalidity below cannot, in these circumstances, be deemed a waiver of that defense. The Court has recognized that to be effective a waiver must be 'an intentional relinquishment or abandonment of a known right or privilege,' Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S. Ct. 1019, 1023 (1938), and we have frequently allowed parties to raise issues for the first time on appeal when there has been a significant change in the law since the trial. This principle has most often been applied in proceedings relating to criminal prosecutions,1 but it has also been invoked in purely civil cases. 2 The principle has not been limited to constitutional issues, and the Court has permitted consideration on appeal of statutory arguments not presented below. 3 In deciding whether such </s> [397 U.S. 586 , 588] </s> new arguments can be considered, we have primarily considered three factors: first, whether there has been a material change in the law; second, whether assertion of the issue earlier would have been futile; and third, whether an important public interest is served by allowing consideration of the issue. It is clear to me that all these criteria are met in this case. Undoubtedly our decision in Lear was a major change in the field of patent law. The Court implicitly recognized this fact by overruling the estoppel holding in Automatic Radio. It is also clear that the trial court was satisfied that applicable law precluded the assertion of invalidity by patent licensees 4 and thus earlier argument on the point would have been futile. Finally, and most importantly, an overriding public interest would be served by allowing petitioner to challenge the validity of this patent. Last Term we unanimously held that 'the public's interest in the elimination of specious patents would be significantly prejudiced if the retroactive effect of (Lear) were limited in any way.' Lear, supra, 395 U.S., at 674 n. 19. I do not understand how today's decision can be reconciled with that statement. Although analytically this case may present a question of waiver and not retroactivity, the public interest that the Court felt required full retroactivity in Lear is an equally compelling reason for allowing petitioner's attack now in spite of the concessions below. I would vacate the judgments below and remand the case to the District Court for a determination of the validity of the patent in issue. </s> Footnotes </s> [Footnote 1 See White v. Maryland, 373 U.S. 59 ( 1963); cf. McConnell v. Rhay, 393 U.S. 2 (1968); Tehan v. United States ex rel. Shott, 382 U.S. 406 d 453 (1966); Linkletter v. Walker, 381 U.S. 618 , 622-629, 1733-1737 (1965); Griffin v. California, 380 U.S. 609 (1965). [Footnote 2 Curtis Publishing Co. v. Butts, 388 U.S. 130 , 142-145 (opinion of Harlan, J.), 172 n. 1 (separate opinion of Brennan, J.), 1984-1986 (1967); Rosenblatt v. Baer, 383 U.S. 75 , 86 S. Ct. 669 (1966); Uebersee Finanz-Korp, A.G. v. McGrath, 343 U.S. 205, 213 , 621 (1952); Hormel v. Helvering, 312 U.S. 552 , 556-557, 721-722 (1941). [Footnote 3 In Hormel v. Helvering, supra, the Court allowed the Commissioner of Internal Revenue to rely on 22(a) of the Revenue Act of 1934 although his argument before the Board of Tax Appeals had rested solely on 166 and 167. We did so because of the intervening decision in Helvering v. Clifford, 309 U.S. 331 (1940). </s> [Footnote 4 App. 52a, 129a-3.

United States Supreme Court McCONNELL, UNITED STATES SENATOR, et al. v. FEDERAL ELECTION COMMISSION et al.(2003) No. 02-1674 Argued: September 8, 2003Decided: December 10, 2003 </s> The Bipartisan Campaign Reform Act of 2002 (BCRA), which amended the Federal Election Campaign Act of 1971 (FECA), the Communications Act of 1934, and other portions of the United States Code, is the most recent of nearly a century of federal enactments designed "to purge national politics of what [is] conceived to be the pernicious influence of 'big money' campaign contributions." United States v. Automobile Workers, 352 U.S. 567, 572. In enacting BCRA, Congress sought to address three important developments in the years since this Court's landmark decision in Buckley v. Valeo, 424 U.S. 1 (per curiam):the increased importance of "soft money," the proliferation of "issue ads," and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections. </s> With regard to the first development, prior to BCRA, FECA's disclosure requirements and source and amount limitations extended only to so-called "hard money" contributions made for the purpose of influencing an election for federal office. Political parties and candidates were able to circumvent FECA's limitations by contributing "soft money"--money as yet unregulated under FECA--to be used for activities intended to influence state or local elections; for mixed-purpose activities such as get-out-the-vote (GOTV) drives and generic party advertising; and for legislative advocacy advertisements, even if they mentioned a federal candidate's name, so long as the ads did not expressly advocate the candidate's election or defeat. With regard to the second development, parties and candidates circumvented FECA by using "issue ads" that were specifically intended to affect election results, but did not contain "magic words," such as "Vote Against Jane Doe," which would have subjected the ads to FECA's restrictions. Those developments were detailed in a 1998 Senate Committee Report summarizing an investigation into the 1996 federal elections, which concluded that the soft-money loophole had led to a meltdown of the campaign finance system; and discussed potential reforms, including a soft-money ban and restrictions on sham issue advocacy by nonparty groups. </s> Congress enacted many of the committee's proposals in BCRA: Title I regulates the use of soft money by political parties, officeholders, and candidates; Title II primarily prohibits corporations and unions from using general treasury funds for communications that are intended to, or have the effect of, influencing federal election outcomes; and Titles III, IV, and V set out other requirements. Eleven actions challenging BCRA's constitutionality were filed. A three-judge District Court held some parts of BCRA unconstitutional and upheld others. The parties challenging the law are referred to here as plaintiffs, and those who intervened in support of the law are intervenor-defendants. Held:The judgment is affirmed in part and reversed in part. 251 F.Supp. 2d 176, 251 F.Supp. 2d 948, affirmed in part and reversed in part. Justice Stevens and Justice O'Connor delivered the Court's opinion with respect to BCRA Titles I and II, concluding that the statute's two principal, complementary features--Congress' effort to plug the soft-money loophole and its regulation of electioneering communications--must be upheld in the main. Pp. 23-118. </s> 1.New FECA §323 survives plaintiffs' facial First Amendment challenge. Pp. 23-77. </s> (a)In evaluating §323, the Court applies the less rigorous standard of review applicable to campaign contribution limits under Buckley and its progeny. Such limits are subject only to "closely drawn" scrutiny, see 459 U.S. 197, 208. The less rigorous review standard shows proper deference to Congress' ability to weigh competing constitutional interests in an area in which it enjoys particular expertise, and provides it with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the political process' integrity. Finally, because Congress, in its lengthy deliberations leading to BCRA's enactment, properly relied on Buckley and its progeny, stare decisis considerations, buttressed by the respect that the Legislative and Judicial Branches owe one another, provide additional powerful reasons for adhering to the analysis of contribution limits the Court has consistently followed since Buckley. The Court rejects plaintiffs' argument that the type of speech and associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckley's contribution limits. Pp. 24-32. </s> (b)New FECA §323(a)--which forbids national party committees and their agents to "solicit, receive, ... direct ... , or spend any funds ... that are not subject to [FECA's] limitations, prohibitions, and reporting requirements," 2 U.S.C.A. §§441i(a)(1), (2)--does not violate the First Amendment. Pp. 32-52. </s> (1)The governmental interest underlying §323(a)--preventing the actual or apparent corruption of federal candidates and officeholders--constitutes a sufficiently important interest to justify contribution limits. That interest is not limited to the elimination of quid pro quo, cash-for-votes exchanges, see Buckley, supra, at 28, but extends also to "undue influence on an officeholder's judgment, and the appearance of such influence," Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 441 (Colorado II). These interests are sufficient to justify not only contribution limits themselves, but also laws preventing the circumvention of such limits. Id., at 456. While the quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments varies with the novelty or plausibility of the justification raised, Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 391, the idea that large contributions to a national party can corrupt or create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible, see, e.g., Buckley, supra, at 38. There is substantial evidence in these cases to support Congress' determination that such contributions of soft money give rise to corruption and the appearance of corruption. For instance, the record is replete with examples of national party committees' peddling access to federal candidates and officeholders in exchange for large soft-money donations. Pp. 32-45. </s> (2)Section §323(a) is not impermissibly overbroad because it subjects all funds raised and spent by national parties to FECA's hard-money source and amount limits, including, e.g., funds spent on purely state and local elections in which no federal office is at stake. The record demonstrates that the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, have made all large soft-money contributions to national parties suspect, regardless of how those funds are ultimately used. The Government's strong interests in preventing corruption, and particularly its appearance, are thus sufficient to justify subjecting all donations to national parties to FECA's source, amount, and disclosure limitations. Pp. 45-47. </s> (3)Nor is §323(a)'s prohibition on national parties' soliciting or directing soft-money contributions substantially overbroad. That prohibition's reach is limited, in that it bars only soft-money solicitations by national party committees and party officers acting in their official capacities; the committees themselves remain free to solicit hard money on their own behalf or that of state committees and state and local candidates and to contribute hard money to state committees and candidates. Plaintiffs argue unpersuasively that the solicitation ban's overbreadth is demonstrated by §323(e), which allows federal candidates and officeholders to solicit limited amounts of soft money from individual donors under certain circumstances. The differences between §§323(a) and 323(e) are without constitutional significance, see National Right to Work, 459 U.S., at 210, reflecting Congress' reasonable and expert judgments about national committees' functions and their interactions with officeholders. Pp. 47-48. </s> (4)Section 323(a) is not substantially overbroad with respect to the speech and associational rights of minor parties, even though the latter may have slim prospects for electoral success. It is reasonable to require that all parties and candidates follow the same rules designed to protect the electoral process's integrity. Buckley, 424 U.S., at 34-35. A nascent or struggling minor party can bring an as-applied challenge if §323(a) prevents it from amassing the resources necessary to engage in effective advocacy. Id., at 21. Pp. 48-51. </s> (5)Plaintiffs' argument that §323(a) unconstitutionally interferes with the ability of national committees to associate with state and local committees is unpersuasive because it hinges on an unnaturally broad reading of the statutory terms "spend," "receive," "direct," and "solicit." Nothing on §323(a)'s face prohibits national party officers from sitting down with state and local party committees or candidates to plan and advise how to raise and spend soft money, so long as the national officers do not personally spend, receive, direct, or solicit soft money. Pp. 51-52. </s> (c)On its face, new FECA §323(b)--which prohibits state and local party committees from using soft money for activities affecting federal elections, 2 U.S.C.A. §442i(b)--is closely drawn to match the important governmental interest of preventing corruption and its appearance. Pp. 52-66. </s> (1)Recognizing that the close ties between federal candidates and state party committees would soon render §323(a)'s anticorruption measures ineffective if state and local committees remained available as a conduit for soft-money donations, Congress designed §323(b) to prevent donors from contributing nonfederal funds to such committees to help finance "Federal election activity," which is defined to encompass (1) voter registration activity during the 120 days before a federal election; (2) voter identification, GOTV, and generic campaign activity "conducted in connection with an election in which a [federal] candidate ... appears on the ballot"; (3) any "public communication" that "refers to a clearly identified [federal] candidate" and "promotes," "supports," "attacks," or "opposes" such a candidate; and (4) the services of a state committee employee who dedicates more than 25% of his or her compensated time to "activities in connection with a Federal election," 2 U.S.C.A. §§431(20)(A)(i-iv). All activities that fall within this definition must be funded with hard money. §441i(b)(1). The Levin Amendment carves out an exception to this general rule, allowing state and local party committees to pay for certain federal election activities--namely, activities falling within categories (1) and (2) above that either do not refer to "a clearly identified candidate for Federal office," or, if they involve broadcast communications, refer "solely to a clearly identified candidate for State or local office," §§441i(b)(2)(B)(i)-(ii)--with an allocated ratio of hard money and so-called "Levin funds." Levin funds are subject only to state regulation, but for two additional restrictions. First, no contributor can donate more than $10,000 per year to a single committee's Levin account. §441i(b)(2)(B)(iii). Second, both Levin funds and the allocated portion of hard money to pay for such activities must be raised by the state or local committee that spends them, though the committee can team up with other national, state, or local committees to solicit the hard-money portion. §§441i(b)(2)(B)(iv), 441i(b)(2)(C). Pp. 52-55. </s> (2)In addressing soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. It concluded from the record that soft money's corrupting influence insinuates itself into the political process not only through national party committees, but also through state committees, which function as an alternate avenue for precisely the same corrupting forces. Indeed, the evidence shows that both candidates and parties already ask donors who have reached their direct contribution limit to donate to state committees. Congress' reasonable prediction, based on the history of campaign finance regulation, was that donors would react to §323(a) by directing soft-money contributions to state committees for the purpose of influencing federal candidates and elections, and that federal candidates would be just as indebted to these contributors as they had been to those who had formerly contributed to the national parties. Preventing corrupting activity from shifting wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest. Pp. 55-57. </s> (3)Plaintiffs argue unpersuasively that, even if §323(b) serves a legitimate interest, its restrictions are so unjustifiably burdensome and overbroad that they cannot be considered "closely drawn" to match the Government's objectives. Pp. 57-66. </s> (i)Section 323(b) is not substantially overbroad. Although §323(b) captures some activities that affect state campaigns for nonfederal offices, these are the same activities that were covered by the FEC's pre-BCRA allocation rules, and so had to be funded in part by hard money because they affected both federal and state elections. As a practical matter, BCRA merely codifies the FEC's allocation regime principles while justifiably adjusting the applicable formulas in order to restore the efficacy of FECA's longstanding restriction on contributions to state and local committees for the purpose of influencing federal elections. By limiting its reach to "Federal election activities," §323(b) is narrowly focused on regulating contributions that directly benefit federal candidates and thus pose the greatest risk of corruption or its appearance. The first two categories of "Federal election activity"--voter registration efforts and voter identification, GOTV, and generic campaign activities conducted in connection with a federal election--clearly capture activities that confer a substantial benefit on federal candidates by getting like-minded voters to the polls. If a voter registration drive does not specifically mention a federal candidate, state committees can take advantage of the Levin Amendment's higher contribution limits and relaxed source restrictions. Moreover, because the record demonstrates abundantly that the third category of "Federal election activity," "public communication[s]" that promote or attack a federal candidate, directly affects the election in which that candidate is participating, application of §323(b)'s contribution caps to such communications is closely drawn to the anticorruption interest it is intended to address. Finally, Congress' interest in preventing circumvention of §323(b)'s other restrictions justifies the requirement of the fourth category of "Federal election activity" that federal funds be used to pay any state or local party employee who spends more than 25% of his or her compensated time on activities connected with a federal election. Pp. 58-63. </s> (ii)The Levin Amendment does not unjustifiably burden association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. While preserving parties' associational freedom is important, not every minor restriction on parties' otherwise unrestrained ability to associate is of constitutional dimension. See Colorado II, 533 U.S., at 450, n. 11. Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme. Pp. 63-65. </s> (iii)The evidence supporting the argument that the Levin Amendment prevents parties from amassing the resources needed to engage in effective advocacy is speculative. The history of campaign finance regulation proves that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that §323(b) may reduce the money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether the amount available over previous election cycles is reduced, but whether the reduction is so radical as to drive the sound of the recipient's voice below the level of notice. Shrink Missouri, 528 U.S., at 397. If state or local parties can make such a showing, as-applied challenges remain available. Pp. 65-66. </s> (d)New FECA §323(d)--which forbids national, state, and local party committees and their agents to "solicit any funds for, or make or direct any donations" to §501(c) tax exempt organizations that make expenditures in connection with a federal election, and to §527 political organizations "other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office," 2 U.S.C.A. §441i(d)--is not facially invalid. Pp. 66-73. </s> (1)Section 323(d)'s restriction on solicitations is a valid anti-circumvention measure. Absent this provision, national, state, and local party committees would have significant incentives to mobilize their formidable fundraising apparatuses, including the peddling of access to federal officeholders, into the service of like-minded tax-exempt organizations that conduct activities benefiting their candidates. All of the corruption and the appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Plaintiffs' argument that §323(d)'s solicitations ban cannot be squared with §323(e), which allows federal candidates and officeholders to solicit limited soft-money donations to tax-exempt organizations engaged in federal election activities, is not persuasive. If §323(d)'s solicitation restriction is otherwise valid, it is not rendered unconstitutional by the mere fact that Congress chose not to regulate the activities of another group as stringently as it might have. See National Right to Work, 459 U.S., at 210. Furthermore, the difference between the two provisions is explained by the fact that national party officers, unlike federal candidates and officeholders, remain free to solicit soft money on behalf of nonprofit organizations in their individual capacities. Given §323(e)'s tight content, source, and amount restrictions on soft-money solicitations by federal candidates and officeholders, as well as the less rigorous standard of review, §323(e)'s greater solicitation allowances do not render §323(d)'s solicitation restriction facially invalid. Pp. 67-71. </s> (2)Section 323(d)'s restriction on donations to qualifying §501(c) or §527 organizations is a valid anticircumvention measure insofar as it prohibits donations of funds not already raised in compliance with FECA. Absent such a restriction, state and local party committees could accomplish directly what the antisolicitation restrictions prevent them from doing indirectly--raising large sums of soft money to launder through tax-exempt organizations engaging in federal election activities. Although the ban raises overbreadth concerns if read to restrict donations from a party's federal account--i.e., funds already raised in compliance with FECA's source, amount, and disclosure limitations--these concerns do not require that the facial challenge be sustained, given this Court's obligation to construe a statute, if possible, in such a way as to avoid constitutional questions, see, e.g., Crowell v. Benson, 285 U.S. 22, 62. Because the record does not compel the conclusion that Congress intended "donations" to include donations from a party's hard-money account, and because of the constitutional infirmities such an interpretation would raise, the Court narrowly construes §323(d)'s ban to apply only to donations of funds not raised in compliance with FECA. Pp. 71-73. </s> (e)New FECA §323(e)--which, with many exceptions, forbids federal candidates and officeholders to "solicit, receive, direct, transfer, or spend" soft money in connection with federal elections, 2 U.S.C.A. §441i(e)(1)(A), and limits their ability to do so for state and local elections, §441i(e)(1)(B)--does not violate the First Amendment. No party seriously questions the constitutionality of the general ban on soft-money donations directly to federal candidates and officeholders and their agents. By severing the most direct link to the soft-money donor, the ban is closely drawn to prevent the corruption or the appearance of corruption of federal candidates and officeholders. The solicitation restrictions are valid anticircumvention measures. Even before BCRA's passage, federal candidates and officeholders solicited donations to state and local parties, as well as tax-exempt organizations, in order to help their own, as well as their party's, electoral cause. See Colorado II, 533 U.S., at 458. The incentives to do so will only increase with Title I's restrictions on the raising and spending of soft money by national, state, and local parties. Section 323(e) addresses these concerns while accommodating the individual speech and associational rights of federal candidates and officeholders. Pp. 74-77. </s> (f)New FECA §323(f)--which forbids state and local candidates or officeholders to raise and spend soft money to fund ads and other "public communications" that promote or attack federal candidates, 2 U.S.C. §442i(f)--is a valid anticircumvention provision. The section places no cap on the funds that such candidates can spend on any activity, but, rather, limits only the source and amount of contributions that they can draw on to fund expenditures that directly impact federal elections. And, by regulating only contributions used to fund "public communications," the section focuses narrowly on those soft-money donations with the greatest potential to corrupt or give rise to the appearance of corruption of federal candidates and officeholders. Plaintiffs' principal arguments against the section--(1) that the definition of "public communications" as communications that support or attack a clearly identified federal candidate is unconstitutionally vague and overbroad; and (2) that soft-money contributions to state and local candidates for "public communications" do not corrupt or appear to corrupt federal candidates--are rejected. Pp. 77-78. </s> 2.Several plaintiffs argue unpersuasively that BCRA Title I exceeds Congress' Election Clause authority to "make or alter" rules governing federal elections, U.S. Const., Art. I, §4, and violates constitutional federalism principles by impairing the States' authority to regulate their own elections. In examining federal Acts for Tenth Amendment infirmity, the Court focuses on whether States and state officials are commandeered to carry out federal regulatory schemes. See, e.g., Printz v. United States, 521 U.S. 898. By contrast, Title I only regulates private parties' conduct, imposing no requirements upon States or state officials. And, because it does not expressly pre-empt state legislation, Title I leaves States free to enforce their own restrictions on state electoral campaign financing. Moreover, while this Court has policed the absolute boundaries of Congress' Article I power, see, e.g., United States v. Morrison, 529 U.S. 598, plaintiffs offer no reason to believe that Congress has overstepped its Elections Clause power in enacting BCRA. Indeed, as already found, Title I is closely drawn to match Congress' important interest in preventing the corruption or the appearance of corruption of federal candidates and officeholders. That interest is sufficient to ground Congress' exercise of its Elections Clause power. Pp. 79-80. </s> 3.Also rejected is the argument that BCRA Title I violates equal protection by discriminating against political parties in favor of special interest groups, which remain free to raise soft money to fund voter registration, GOTV activities, mailings, and broadcast advertising (other than electioneering communications). First, BCRA actually favors political parties in many ways, e.g., by allowing party committees to receive individual contributions substantially exceeding FECA limits on contributions to nonparty political committees. More importantly, Congress is fully entitled to consider the salient, real-world differences between parties and interest groups when crafting a campaign finance regulation system, see National Right to Work, 459 U.S., at 210, including the fact that parties have influence and power in the legislature vastly exceeding any interest group's. Taken seriously, plaintiffs' equal protection arguments would call into question not just BCRA Title I, but much of FECA's pre-existing structure. Pp. 82-85. </s> 4.Accordingly, the judgment below is affirmed insofar as it upheld §§323(e) and 323(f) and reversed insofar as it invalidated §§323(a), 323(b), and 323(d). P. 82. </s> 5.The District Court's judgment is affirmed to the extent that it upheld the disclosure requirements in amended FECA §304 and rejected the facial attack on the provisions relating to donors of $1,000 or more, but reversed to the extent that it invalidated FECA §304(f)(5). Pp. 82-95. </s> (a)BCRA §201 comprehensively amends FECA §304, which requires political committees to file detailed periodic financial reports with the FEC. The narrowing construction adopted in Buckley limited FECA's disclosure requirement to communications expressly advocating the election or defeat of particular candidates. BCRA adopts a new term, "electioneering communication," which encompasses any "broadcast, cable, or satellite communication" that clearly identifies a candidate for federal office, airs within a specific time period (e.g., within 60 days of a general election and 30 days of a primary), and is targeted to the relevant electorate. 2 U.S.C.A. §434(f)(3)(A)(i). BCRA also amends §304 to provide disclosure requirements for persons who fund electioneering communications (and BCRA §203 amends FECA §316(b)(2) to extend those requirements to corporations and labor unions). </s> Plaintiffs challenge the new term's constitutionality as it applies to both disclosures and expenditures, arguing primarily that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers have an inviolable First Amendment right to engage in the latter category of speech. However, a plain reading of Buckley and Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (MCFL), shows that the express advocacy restriction is a product of statutory interpretation, not a constitutional command. Both the concept of express advocacy and the class of magic words were born of an effort to avoid constitutional problems of vagueness and overbreadth in the statute before the Buckley Court. Consistent with the principle that a constitutional rule should never be formulated more broadly than required by the facts to which it is to be applied, Buckley and MCFL were specific to the statutory language before the Court and in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech. The notion that the First Amendment erects a rigid barrier between express and issue advocacy also cannot be squared with this Court's longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. Buckley's express advocacy line has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found. Finally, because the components of new FECA §304(f)(3)'s definition of "electioneering communication" are both easily understood and objectively determinable, the vagueness objection that persuaded the Buckley Court to limit FECA's reach to express advocacy is inapposite here. Pp. 82-88. </s> (b)With regard to plaintiffs' other concerns about the use of the phrase "electioneering communication," the District Court correctly rejected their submission that new FECA §304 unnecessarily requires disclosure of the names of persons who contributed $1,000 or more to the individual or group paying for the communication, but erred in finding §304(f)(5) invalid because it mandates disclosure of executory contracts for communications that have not yet aired. Because the important state interests identified in Buckley--providing the electorate with information, deterring actual corruption and avoiding its appearance, and gathering data necessary to enforce more substantive electioneering restrictions--apply in full to BCRA, Buckley amply supports application of FECA §304's disclosure requirements to the entire range of "electioneering communications." Buckley also forecloses a facial attack on the new §304 provision that requires disclosure of the names of persons who contribute $1,000 or more to segregated funds or spend more than $10,000 in a calendar year on electioneering communications. Under Buckley's standard of proof, the evidence here did not establish the requisite reasonable probability of harm to any plaintiff group or its members resulting from compelled disclosure. However, the rejection of this facial challenge does not foreclose possible future challenges to particular applications of that disclosure requirement. </s> This Court is also unpersuaded by plaintiffs' challenge to new FECA §304(f)(5)'s requirement regarding the disclosure of executory contracts. The new provision mandates disclosure only when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering communications. Given the relatively short time frames in which such communications are made, the interest in assuring that disclosures are made in time to provide relevant information to voters is significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole without the advance disclosure requirement, for political supporters could avoid preelection disclosures about ads slated to run during a campaign's final weeks simply by making a preelection downpayment of less than $10,000, with the balance payable after the election. The record contains little evidence of any harm that might flow from the requirement's enforcement, and the District Court's speculation about such harm cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. Pp. 88-95. </s> 6.The District Court's judgment is affirmed insofar as it held that plaintiffs advanced no basis for finding unconstitutional BCRA §202, which amends FECA §315(a)(7)(C) to provide that disbursements for electioneering communications that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party, 2 U.S.C.A. §441a(a)(7)(C). That provision clarifies the scope of §315(a)(7)(B), which provides that expenditures made by any person in cooperation, consultation, or concert with, or at the request or suggestion of a candidate or party constitute contributions. BCRA pre-empts a possible claim that the term "expenditure" in §315(a)(7)(B) is limited to spending for express advocacy. Because Buckley's narrow interpretation of that term was only a statutory limitation on Congress' power to regulate federal elections, there is no reason why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats other coordinated expenditures. Pp. 96-97. </s> 7.The District Court's judgment is affirmed to the extent that it upheld the constitutionality of new FECA §316(b)(2), and reversed to the extent that it invalidated any part of that section. BCRA §203 extends to all "electioneering communications" FECA §316(b)(2)'s restrictions on the use of corporate and union general treasury funds. 2 U.S.C.A. §441b(b)(2). Because those entities may still organize and administer segregated funds, or PACs, for such communications, the provision is a regulation of, not a ban on, expression. Beaumont, 539 U.S., at ___ (slip op., at 15). This Court's consideration of plaintiffs' claim that the expanded regulation is both overinclusive and underinclusive is informed by the conclusion that the distinction between express advocacy and so-called issue advocacy is not constitutionally compelled. Thus, the Court examines the degree to which BCRA burdens First Amendment expression and evaluates whether a compelling governmental interest justifies that burden. Plaintiffs have not carried their burden of proving that new FECA §316(b)(2) is overbroad. They argue that the justifications that adequately support regulation of express advocacy do not apply to significant quantities of speech encompassed by the electioneering communications definition. That argument fails to the extent that issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for regulating express advocacy apply equally to those ads if they have an electioneering purpose, which the vast majority do. Also rejected is plaintiffs' argument that new FECA §316(b)(2)'s segregated-fund requirement is underinclusive because it does not apply to print or Internet advertising. The record here reflects that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the relevant period. Congress justifiably concluded that remedial legislation was needed to stanch that flow of money. Finally, §304(f)(3)(B)(i), which excludes news items and commentary from the electioneering communications definition, is wholly consistent with First Amendment principles as applied to the media. Pp. 97-103. </s> 8.The District Court's judgment is affirmed to the extent that it upheld new FECA §316(c)(6), as limited to nonprofit entities that are not so-called MCFL organizations. BCRA §204, which adds §316(c)(6), 2 U.S.C.A. §441b(c)(2), extends to nonprofit corporations the prohibition on the use of general treasury funds to pay for electioneering communications. This Court upheld a similar restriction in Beaumont, supra, except as it applied to organizations that are formed for the express purpose of promoting political ideas, have no shareholders, are not established by a business corporation or labor union, and do not accept contributions from those entities, MCFL, 479 U.S., at 264. The same constitutional objection to applying the pre-BCRA restrictions to such organizations necessarily applies with equal force to FECA §316(c)(6). That §316(c)(6) does not, on its face, exempt MCFL organizations is not a sufficient reason to invalidate it. This Court presumes that the legislators were fully aware that the provision could not apply to MCFL-type entities, and the Government concedes that it does not. As so construed, the provision is plainly valid. Pp. 103-106. </s> 9.Because this Court has already found BCRA §201's executory contract disclosure requirement constitutional, plaintiffs' challenge to a similar disclosure requirement in BCRA §212, which added FECA §304(g), 2 U.S.C.A. §434, is essentially moot. Pp. 106-107. </s> 10.The District Court's judgment is affirmed to the extent that it invalidated BCRA §213, which amends FECA §315(d)(4) to require political parties to choose between coordinated and independent expenditures during the postnomination, preelection period. 2 U.S.C.A. §441a(d)(4). That provision places an unconstitutional burden on the parties' right to make unlimited independent expenditures. Although the category of burdened speech is limited to independent expenditures for express advocacy--and therefore is relatively small--it plainly is entitled to First Amendment protection. The governmental interest in requiring parties to avoid using magic words is not sufficient to support the burden imposed by §315(d)(4). The fact that the provision is cast as a choice rather than an outright prohibition on independent expenditures does not make it constitutional. Pp. 107-114. </s> 11.The District Court's judgment is affirmed to the extent that it rejected plaintiffs' challenges to BCRA §214, which adds FECA §315(a)(7)(B)(ii), 2 U.S.C.A. §441a(a)(7)(b)(ii). FECA §315(a)(7)(B)(i) long has provided that expenditures that are controlled by or coordinated with a candidate will be treated as contributions to the candidate. BCRA §214(a) extends that rule to expenditures coordinated with political parties; and §§214 (b) and (c) direct the FEC to promulgate new regulations that do not "require agreement or formal collaboration to establish coordination," 2 U.S.C.A. §441a(a) note. FECA §315(a)(7)(B)(ii) is not overbroad simply because it permits a finding of coordination in the absence of a pre-existing agreement. Congress has always treated expenditures made after a wink or nod as coordinated. Nor does the absence of an agreement requirement render §315(a)(7)(B)(ii) unconstitutionally vague. An agreement has never been required under §315(a)(7)(B)(i), which uses precisely the same language as the new provision to address coordination with candidates, and which has survived without constitutional challenge for almost three decades. Plaintiffs have provided no evidence that that the definition has chilled political speech, and have made no attempt to explain how an agreement requirement would prevent the FEC from engaging in what they fear will be intrusive and politically motivated investigations. Finally, in this facial challenge to BCRA, plaintiffs' challenge to §§214(b) and (c) is not ripe to the extent that they allege constitutional infirmities in the FEC's new regulations rather than the statute. Pp. 114-119. </s> The Chief Justice delivered the opinion of the Court with respect to miscellaneous BCRA Title III and IV provisions, concluding that the District Court's judgment with respect to these provisions must be affirmed. Pp.2-11. </s> 1.The plaintiffs' challenges to BCRA §305, §307, and the millionaire provisions are nonjusticiable. Pp.2-8. </s> (a)The McConnell plaintiffs lack standing to challenge BCRA §305, which amends the federal Communications Act of 1934 requirement that, 45 days before a primary or 60 days before a general election, broadcast stations sell air time to a qualified candidate at their "lowest unit charge," 47 U.S.C. §315(b). Section 305's amendment, in turn, denies a candidate the benefit of that charge in specified circumstances. 47 U.S.C.A. §§315(b)(2)(A), (C). Senator McConnell's testimony that he plans to run ads critical of his opponents and had run them in the past is too remote temporally to satisfy the Article III standing requirement that a plaintiff demonstrate an "injury in fact" that is "actual or imminent," Whitmore v. Arkansas, 495 U.S. 149, 155, 158, given that the lowest unit charge requirement is not available until 45 days before a primary, that Senator McConnell's current term does not expire until 2009, and that, therefore, the earliest day he could be affected by §305 is 45 days before the 2008 Republican primary election. Pp.2-4. </s> (b)The Adams and Paul plaintiffs lack standing to challenge BCRA §307, which amends FECA §315(a)(1) to increase and index for inflation certain contribution limits. Neither injury alleged by the Adams plaintiffs, a group of voters, voter organizations, and candidates, is sufficient to confer standing. First, their assertion that §307 deprives them of an equal ability to participate in the election process based on their economic status does not satisfy the standing requirement that a plaintiff's alleged injury be an invasion of a concrete and particularized legally protected interest, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, since political "free trade" does not necessarily require that all who participate in the political marketplace do so with exactly equal resources, e.g., MCFL, 529 U.S. 765, 771, since, even if the Court were to strike down BCRA §307's increases and indexes, as they ask, both FECA's contribution limits and an exemption for institutional news media would remain unchanged. Pp.4-8. </s> (c)The Adams plaintiffs lack standing to challenge the so-called "millionaire provisions," BCRA §§304, 315, and 316, which provide for a series of staggered increases in otherwise applicable contribution-to-candidate limits if the candidate's opponent spends a triggering amount of his personal funds, and eliminate the coordinated expenditure limits in certain circumstances. Because these plaintiffs allege the same injuries that they alleged with regard to BCRA §307, they fail to state a cognizable injury that is fairly traceable to BCRA. Additionally, none of them is a candidate in an election affected by the millionaire provisions, and it would be purely conjectural to assume that any of them ever will be. P.8. </s> 2.The District Court's decision upholding BCRA §311's expansion of FECA §318(a) to include mandatory electioneering-communications-disbursements disclosure is affirmed because such inclusion bears a sufficient relationship to the important governmental interest of "shed[ding] the light of publicity" on campaign financing, Buckley, 424 U.S., at 81. Assuming, as the Court must, that FECA §318 is valid both to begin with and as amended by BCRA §311's amendments other than the electioneering-communications inclusion, the latter inclusion is not itself unconstitutional. P.9. </s> 3.BCRA §318--which forbids individuals "17 years old or younger" to make contributions to candidates and political parties, 2 U.S.C.A. §441k--violates the First Amendment rights of minors, see, e.g., Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 511-513. Because limitations on an individual's political contributions impinge on the freedoms of expression and association, see Buckley, 424 U.S., at 20-22, the Court applies heightened scrutiny to such a limitation, asking whether it is justified by a "sufficiently important interest" and "closely drawn" to avoid unnecessary abridgment of the First Amendment, see e.g., post, at 25-26 (joint opinion of Stevens and O'Connor, JJ.). The Government offers scant evidence for its assertion that §318 protects against corruption by conduit--i.e., donations by parents through their minor children to circumvent contribution limits applicable to the parents. Absent a more convincing case of the claimed evil, this interest is simply too attenuated for §318 to withstand heightened scrutiny. See Shrink Missouri, 528 U.S., at 391. Even assuming, arguendo, the Government advances an important interest, the provision is overinclusive, as shown by the States' adoption of more tailored approaches. Pp.9-11. </s> 4.Because the FEC clearly has standing, the Court need not address whether the intervenor-defendants, whose position here is identical to the FEC's, were properly granted intervention pursuant to, inter alia, BCRA §403(b). See, e.g., Clinton v. City of New York, 524 U.S. 417, 431-432, n.19. P.11. </s> Justice Breyer delivered the Court's opinion with respect to BCRA Title V--§504 of which amends the Communications Act of 1934 to require broadcasters to keep publicly available records of politically related broadcasting requests, 47 U.S.C.A. §315(e)--concluding that the portion of the judgment below invalidating §504 as facially violative of the First Amendment must be reversed. Pp.2-15. </s> 1.Section 504's "candidate request" requirements--which call for broadcasters to keep records of broadcast requests "made by or on behalf of any ... candidate," 47 U.S.C.A. §315(e)(1)(A)--are upheld. They are virtually identical to those contained in a longstanding FCC regulation. The McConnell plaintiffs' argument that the requirements are intolerably burdensome and invasive is rejected. The FCC has consistently estimated that its regulation imposes upon a licensee a comparatively small additional administrative burden. Moreover, the §504 requirement is supported by significant governmental interests in verifying that licensees comply with their obligations to allow political candidates "equal time," 47 U.S.C. §315(a), and to sell such time at the "lowest unit charge," §315(b); in evaluating whether they are processing candidate requests in an evenhanded fashion to help assure broadcasting fairness, §315(a); in making the public aware of how much candidates spend on broadcast messages; 2 U.S.C.A. §434; and in providing an independently compiled set of data for verifying candidates' compliance with BCRA's and FECA's disclosure requirements and source limitations, ibid. Because the Court cannot, on the present record, find the longstanding FCC regulation unconstitutional, it cannot strike down BCRA §504's "candidate request" provision, which simply embodies the regulation in a statute, thereby blocking any agency attempt to repeal it. Pp.3-7. </s> 2.Because §504's "candidate request" requirements are constitutional, its "election message" requirements--which serve similar governmental interests and impose only a small incremental burden in requiring broadcasters to keep records of requests (made by anyone) to broadcast "message[s]" that refer either to a "legally qualified candidate" or to "any election to Federal office," 47 U.S.C.A. §§315(e)(1)(B)(i), (ii)--must be constitutional as well. Pp.8-9. </s> 3.BCRA §504's "issue request" requirements--which call for broadcasters to keep records of requests (made by anyone) to broadcast "message[s]" related to a "national legislative issue of public importance," 47 U.S.C.A. §315(e)(1)(B)(iii), or a "political matter of national importance," §315(e)(1)(B)--survive the McConnell plaintiffs' facial challenge. These recordkeeping requirements seem likely to help determine whether broadcasters are fulfilling their obligations under the FCC's regulations to afford reasonable opportunity for the discussion of conflicting views on important public issues or whether they too heavily favor entertainment, discriminating against public affairs broadcasts. The plaintiffs' claim that the above-quoted statutory language is unconstitutionally vague or overbroad is unpersuasive, given that it is no more general than language Congress has used to impose other obligations upon broadcasters and is roughly comparable to other BCRA language upheld in this litigation. Whether the "issue request" requirements impose disproportionate administrative burdens will depend on how the FCC interprets and applies them. The parties remain free to challenge the provisions, as interpreted by the FCC's regulations, or as otherwise applied. Without the greater information any such challenge will likely provide, the Court cannot say that the provisions' administrative burdens are so great, or their justifications so minimal, as to warrant finding them facially unconstitutional. Similarly, the argument that the "issue request" requirement will force the purchasers to disclose information revealing their political strategies to opponents does not show that BCRA §504 is facially unconstitutional, but the plaintiffs remain free to raise this argument when §504 is applied. Pp.9-12. Stevens and O'Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C.J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II-A, and II-B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C.J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist, C.J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1674v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIFLE ASSOCIATION, etal., APPELLANTS </s> 02-1675v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> FEDERAL ELECTION COMMISSION, etal., APPELLANTS </s> 02-1676v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> JOHN McCAIN, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1702v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> REPUBLICAN NATIONAL COMMITTEE, etal., APPELLANTS </s> 02-1727v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIGHT TO LIFE COMMITTEE, INC., etal., APPELLANTS </s> 02-1733v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN CIVIL LIBERTIES UNION, APPELLANTS </s> 02-1734v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> VICTORIA JACKSON GRAY ADAMS, etal., APPELLANTS </s> 02-1740v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> RON PAUL, UNITED STATES CONGRESSMAN, etal., APPELLANTS </s> 02-1747v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CALIFORNIA DEMOCRATIC PARTY, etal., APPELLANTS </s> 02-1753v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, etal., APPELLANTS </s> 02-1755v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CHAMBER OF COMMERCE OF THE UNITED STATES, etal., APPELLANTS </s> 02-1756v. </s> FEDERAL ELECTION COMMISSION, etal. on appeals from the united states district court for the district of columbia [December 10, 2003] </s> Justice Stevens and Justice O'Connor delivered the opinion of the Court with respect to BCRA Titles I and II.** </s> The Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 11, as amended, 2 U.S.C.A. §431 et seq. (main ed. and Supp. 2003), the Communications Act of 1934, 48 Stat. 1088, as amended, 47 U.S.C.A. §315, and other portions of the United States Code, 18 U.S.C.A. §607 (Supp. 2003), 36 U.S.C.A. §§510-511, that are challenged in these cases.1 In this opinion we discuss Titles I and II of BCRA. The opinion of the Court delivered by The Chief Justice, post, p.___, discusses Titles III and IV, and the opinion of the Court delivered by Justice Breyer, post, p. ___, discusses Title V. I </s> More than a century ago the "sober-minded Elihu Root" advocated legislation that would prohibit political contributions by corporations in order to prevent "'the great aggregations of wealth, from using their corporate funds, directly or indirectly,'" to elect legislators who would "'vote for their protection and the advancement of their interests as against those of the public.'" United States v. Automobile Workers, 352 U.S. 567, 571 (1957) (quoting E. Root, Addresses on Government and Citizenship 143 (R. Bacon & J. Scott eds. 1916)). In Root's opinion, such legislation would "'strik[e] at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government.'" 352 U.S., at 571. The Congress of the United States has repeatedly enacted legislation endorsing Root's judgment. BCRA is the most recent federal enactment designed "to purge national politics of what was conceived to be the pernicious influence of 'big money' campaign contributions." Id., at 572. As Justice Frankfurter explained in his opinion for the Court in Automobile Workers, the first such enactment responded to President Theodore Roosevelt's call for legislation forbidding all contributions by corporations "'to any political committee or for any political purpose.'" Ibid. (quoting 40 Cong. Rec. 96 (1906)). In his annual message to Congress in December 1905, President Roosevelt stated that "'directors should not be permitted to use stockholders' money'" for political purposes, and he recommended that "'a prohibition'" on corporate political contributions "'would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.'" 352 U.S., at 352. The resulting 1907 statute completely banned corporate contributions of "money ... in connection with" any federal election. Tillman Act, ch. 420, 34 Stat. 864. Congress soon amended the statute to require the public disclosure of certain contributions and expenditures and to place "maximum limits on the amounts that congressional candidates could spend in seeking nomination and election." Automobile Workers, supra, at 575-576. </s> In 1925 Congress extended the prohibition of "contributions" "to include 'anything of value,' and made acceptance of a corporate contribution as well as the giving of such a contribution a crime." Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 209 (1982) (citing Federal Corrupt Practices Act, 1925, §§301, 313, 43 Stat. 1070, 1074). During the debates preceding that amendment, a leading Senator characterized "'the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions'" as "'one of the great political evils of the time.'" Automobile Workers, supra, at 576 (quoting 65 Cong. Rec. 9507-9508 (1924)). We upheld the amended statute against a constitutional challenge, observing that "[t]he power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress." Burroughs v. United States, 290 U.S. 534, 547 (1934). </s> Congress' historical concern with the "political potentialities of wealth" and their "untoward consequences for the democratic process," Automobile Workers, supra, at 577-578, has long reached beyond corporate money. During and shortly after World War II, Congress reacted to the "enormous financial outlays" made by some unions in connection with national elections. 352 U.S., at 579. Congress first restricted union contributions in the Hatch Act, 18 U.S.C. §610,2 and it later prohibited "union contributions in connection with federal elections ... altogether." National Right to Work, supra, at 209 (citing War Labor Disputes Act (Smith-Connally Anti-Strike Act), ch. 144, §9, 57 Stat. 167). Congress subsequently extended that prohibition to cover unions' election-related expenditures as well as contributions, and it broadened the coverage of federal campaigns to include both primary and general elections. Labor Management Relations Act, 1947 (Taft-Hartley Act), 61 Stat. 136. See Automobile Workers, supra, at 578-584. During the consideration of those measures, legislators repeatedly voiced their concerns regarding the pernicious influence of large campaign contributions. See 93 Cong. Rec. 3428, 3522 (1947); H.R. Rep. No. 245, 80th Cong., 1st Sess. (1947); S.Rep. No. 1, 80th Cong., 1st Sess., pt. 2 (1947); H.R. Rep. No. 2093, 78th Cong., 2d Sess. (1945). As we noted in a unanimous opinion recalling this history, Congress' "careful legislative adjustment of the federal election laws, in a 'cautious advance, step by step,' to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference." National Right to Work, 352 U.S., at 209 (citations omitted). </s> In early 1972 Congress continued its steady improvement of the national election laws by enacting FECA, 86 Stat. 3. As first enacted, that statute required disclosure of all contributions exceeding $100 and of expenditures by candidates and political committees that spent more than $1,000 per year. Id., at 11-19. It also prohibited contributions made in the name of another person, id., at 19, and by Government contractors, id., at 10. The law ratified the earlier prohibition on the use of corporate and union general treasury funds for political contributions and expenditures, but it expressly permitted corporations and unions to establish and administer separate segregated funds (commonly known as political action committees, or PACs) for election-related contributions and expenditures. Id., at 12-13.3 See Pipefitters v. United States, 407 U.S. 385, 409-410 (1972). </s> As the 1972 presidential elections made clear, however, FECA's passage did not deter unseemly fundraising and campaign practices. Evidence of those practices persuaded Congress to enact the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. Reviewing a constitutional challenge to the amendments, the Court of Appeals for the District of Columbia Circuit described them as "by far the most comprehensive ... reform legislation [ever] passed by Congress concerning the election of the President, Vice-President and members of Congress." Buckley v. Valeo, 519 F.2d 821, 831 (1975) (en banc) (per curiam). </s> The 1974 amendments closed the loophole that had allowed candidates to use an unlimited number of political committees for fundraising purposes and thereby to circumvent the limits on individual committees' receipts and disbursements. They also limited individual political contributions to any single candidate to $1,000 per election, with an overall annual limitation of $25,000 by any contributor; imposed ceilings on spending by candidates and political parties for national conventions; required reporting and public disclosure of contributions and expenditures exceeding certain limits; and established the Federal Election Commission (FEC) to administer and enforce the legislation. Id., at 831-834. </s> The Court of Appeals upheld the 1974 amendments almost in their entirety.4 It concluded that the clear and compelling interest in preserving the integrity of the electoral process provided a sufficient basis for sustaining the substantive provisions of the Act. Id., at 841. The court's opinion relied heavily on findings that large contributions facilitated access to public officials5 and described methods of evading the contribution limits that had enabled contributors of massive sums to avoid disclosure. Id., at 837-841.6 </s> The Court of Appeals upheld the provisions establishing contribution and expenditure limitations on the theory that they should be viewed as regulations of conduct rather than speech. Id., at 840-841 (citing United States v. O'Brien, 391 U.S. 367, 376-377 (1968)). This Court, however, concluded that each set of limitations raised serious--though different--concerns under the First Amendment. Buckley v. Valeo, 424 U.S. 1, 14-23 (1976) (per curiam). We treated the limitations on candidate and individual expenditures as direct restraints on speech, but we observed that the contribution limitations, in contrast, imposed only "a marginal restriction upon the contributor's ability to engage in free communication." Id., at 20-21. Considering the "deeply disturbing examples" of corruption related to candidate contributions discussed in the Court of Appeals' opinion, we determined that limiting contributions served an interest in protecting "the integrity of our system of representative democracy." Id., at 26-27. In the end, the Act's primary purpose--"to limit the actuality and appearance of corruption resulting from large individual financial contributions"--provided "a constitutionally sufficient justification for the $1,000 contribution limitation." Id., at 26. </s> We prefaced our analysis of the $1,000 limitation on expenditures by observing that it broadly encompassed every expenditure "'relative to a clearly identified candidate.'" Id., at 39 (quoting 18 U.S.C. §608(e)(1) (1970 ed., Supp. IV)). To avoid vagueness concerns we construed that phrase to apply only to "communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." 424 U.S., at 42-44. We concluded, however, that as so narrowed, the provision would not provide effective protection against the dangers of quid pro quo arrangements, because persons and groups could eschew expenditures that expressly advocated the election or defeat of a clearly identified candidate while remaining "free to spend as much as they want to promote the candidate and his views." Id., at 45. We also rejected the argument that the expenditure limits were necessary to prevent attempts to circumvent the Act's contribution limits, because FECA already treated expenditures controlled by or coordinated with the candidate as contributions, and we were not persuaded that independent expenditures posed the same risk of real or apparent corruption as coordinated expenditures. Id., at 46-47. We therefore held that Congress' interest in preventing real or apparent corruption was inadequate to justify the heavy burdens on the freedoms of expression and association that the expenditure limits imposed. </s> We upheld all of the disclosure and reporting requirements in the Act that were challenged on appeal to this Court after finding that they vindicated three important interests: providing the electorate with relevant information about the candidates and their supporters; deterring actual corruption and discouraging the use of money for improper purposes; and facilitating enforcement of the prohibitions in the Act. Id., at 66-68. In order to avoid an overbreadth problem, however, we placed the same narrowing construction on the term "expenditure" in the disclosure context that we had adopted in the context of the expenditure limitations. Thus, we construed the reporting requirement for persons making expenditures of more than $100 in a year "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id., at 80 (footnote omitted). </s> Our opinion in Buckley addressed issues that primarily related to contributions and expenditures by individuals, since none of the parties challenged the prohibition on contributions by corporations and labor unions. We noted, however, that the statute authorized the use of corporate and union resources to form and administer segregated funds that could be used for political purposes. Id., at 28-29, n.31; see also n.3, supra. </s> Three important developments in the years after our decision in Buckley persuaded Congress that further legislation was necessary to regulate the role that corporations, unions, and wealthy contributors play in the electoral process. As a preface to our discussion of the specific provisions of BCRA, we comment briefly on the increased importance of "soft money," the proliferation of "issue ads," and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections. Soft Money </s> Under FECA, "contributions" must be made with funds that are subject to the Act's disclosure requirements and source and amount limitations. Such funds are known as "federal" or "hard" money. FECA defines the term "contribution," however, to include only the gift or advance of anything of value "made by any person for the purpose of influencing any election for Federal office." 2 U.S.C. §431(8)(A)(i) (emphasis added). Donations made solely for the purpose of influencing state or local elections are therefore unaffected by FECA's requirements and prohibitions. As a result, prior to the enactment of BCRA, federal law permitted corporations and unions, as well as individuals who had already made the maximum permissible contributions to federal candidates, to contribute "nonfederal money"--also known as "soft money"--to political parties for activities intended to influence state or local elections. Shortly after Buckley was decided, questions arose concerning the treatment of contributions intended to influence both federal and state elections. Although a literal reading of FECA's definition of "contribution" would have required such activities to be funded with hard money, the FEC ruled that political parties could fund mixed-purpose activities--including get-out-the-vote drives and generic party advertising--in part with soft money.7 In 1995 the FEC concluded that the parties could also use soft money to defray the costs of "legislative advocacy media advertisements," even if the ads mentioned the name of a federal candidate, so long as they did not expressly advocate the candidate's election or defeat. FEC Advisory Op. 1995-25. </s> As the permissible uses of soft money expanded, the amount of soft money raised and spent by the national political parties increased exponentially. Of the two major parties' total spending, soft money accounted for 5% ($21.6 million) in 1984, 11% ($45 million) in 1988, 16% ($80 million) in 1992, 30% ($272 million) in 1996, and 42% ($498 million) in 2000.8 The national parties transferred large amounts of their soft money to the state parties, which were allowed to use a larger percentage of soft money to finance mixed-purpose activities under FEC rules.9 In the year 2000, for example, the national parties diverted $280 million--more than half of their soft money--to state parties. </s> Many contributions of soft money were dramatically larger than the contributions of hard money permitted by FECA. For example, in 1996 the top five corporate soft-money donors gave, in total, more than $9 million in nonfederal funds to the two national party committees.10 In the most recent election cycle the political parties raised almost $300 million--60% of their total soft-money fundraising--from just 800 donors, each of which contributed a minimum of $120,000.11 Moreover, the largest corporate donors often made substantial contributions to both parties.12 Such practices corroborate evidence indicating that many corporate contributions were motivated by a desire for access to candidates and a fear of being placed at a disadvantage in the legislative process relative to other contributors, rather than by ideological support for the candidates and parties.13 </s> Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves. Candidates often directed potential donors to party committees and tax-exempt organizations that could legally accept soft money. For example, a federal legislator running for reelection solicited soft money from a supporter by advising him that even though he had already "contributed the legal maximum" to the campaign committee, he could still make an additional contribution to a joint program supporting federal, state, and local candidates of his party.14 Such solicitations were not uncommon.15 </s> The solicitation, transfer, and use of soft money thus enabled parties and candidates to circumvent FECA's limitations on the source and amount of contributions in connection with federal elections. Issue Advertising </s> In Buckley we construed FECA's disclosure and reporting requirements, as well as its expenditure limitations, "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." 424 U.S., at 80 (footnote omitted). As a result of that strict reading of the statute, the use or omission of "magic words" such as "Elect John Smith" or "Vote Against Jane Doe" marked a bright statutory line separating "express advocacy" from "issue advocacy." See id., at 44, n. 52. Express advocacy was subject to FECA's limitations and could be financed only using hard money. The political parties, in other words, could not use soft money to sponsor ads that used any magic words, and corporations and unions could not fund such ads out of their general treasuries. So-called issue ads, on the other hand, not only could be financed with soft money, but could be aired without disclosing the identity of, or any other information about, their sponsors. While the distinction between "issue" and express advocacy seemed neat in theory, the two categories of advertisements proved functionally identical in important respects. Both were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words.16 Little difference existed, for example, between an ad that urged viewers to "vote against Jane Doe" and one that condemned Jane Doe's record on a particular issue before exhorting viewers to "call Jane Doe and tell her what you think."17 Indeed, campaign professionals testified that the most effective campaign ads, like the most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the magic words.18 Moreover, the conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election.19 Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads,20 and those expenditures, like soft-money donations to the political parties, were unregulated under FECA. Indeed, the ads were attractive to organizations and candidates precisely because they were beyond FECA's reach, enabling candidates and their parties to work closely with friendly interest groups to sponsor so-called issue ads when the candidates themselves were running out of money.21 </s> Because FECA's disclosure requirements did not apply to so-called issue ads, sponsors of such ads often used misleading names to conceal their identity. "Citizens for Better Medicare," for instance, was not a grassroots organization of citizens, as its name might suggest, but was instead a platform for an association of drug manufacturers.22 And "Republicans for Clean Air," which ran ads in the 2000 Republican Presidential primary, was actually an organization consisting of just two individuals--brothers who together spent $25 million on ads supporting their favored candidate.23 </s> While the public may not have been fully informed about the sponsorship of so-called issue ads, the record indicates that candidates and officeholders often were. A former Senator confirmed that candidates and officials knew who their friends were and "sometimes suggest[ed] that corporations or individuals make donations to interest groups that run 'issue ads.'"24 As with soft-money contributions, political parties and candidates used the availability of so-called issue ads to circumvent FECA's limitations, asking donors who contributed their permitted quota of hard money to give money to nonprofit corporations to spend on "issue" advocacy.25 Senate Committee Investigation </s> In 1998 the Senate Committee on Governmental Affairs issued a six-volume report summarizing the results of an extensive investigation into the campaign practices in the 1996 federal elections. The report gave particular attention to the effect of soft money on the American political system, including elected officials' practice of granting special access in return for political contributions. The committee's principal findings relating to Democratic Party fundraising were set forth in the majority's report, while the minority report primarily described Republican practices. The two reports reached consensus, however, on certain central propositions. They agreed that the "soft money loophole" had led to a "meltdown" of the campaign finance system that had been intended "to keep corporate, union and large individual contributions from influencing the electoral process."26 One Senator stated that "the hearings provided overwhelming evi-dence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble."27 </s> The report was critical of both parties' methods of raising soft money, as well as their use of those funds. It concluded that both parties promised and provided special access to candidates and senior Government officials in exchange for large soft-money contributions. The Committee majority described the White House coffees that rewarded major donors with access to President Clinton,28 and the courtesies extended to an international businessman named Roger Tamraz, who candidly acknowledged that his donations of about $300,000 to the DNC and to state parties were motivated by his interest in gaining the Federal Government's support for an oil-line project in the Caucasus.29 The minority described the promotional materials used by the RNC's two principal donor programs, "Team 100" and the "Republican Eagles," which promised "special access to high-ranking Republican elected officials, including governors, senators, and representatives."30 One fundraising letter recited that the chairman of the RNC had personally escorted a donor on appointments that "'turned out to be very significant in legislation affecting public utility holding companies'" and made the donor "'a hero in his industry.'"31 </s> In 1996 both parties began to use large amounts of soft money to pay for issue advertising designed to influence federal elections. The Committee found such ads highly problematic for two reasons. Since they accomplished the same purposes as express advocacy (which could lawfully be funded only with hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended to provide. Moreover, though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns.32 The ads thus provided a means for evading FECA's candidate contribution limits. </s> The report also emphasized the role of state and local parties. While the FEC's allocation regime permitted national parties to use soft money to pay for up to 40% of the costs of both generic voter activities and issue advertising, they allowed state and local parties to use larger percentages of soft money for those purposes.33 For that reason, national parties often made substantial transfers of soft money to "state and local political parties for 'generic voter activities' that in fact ultimately benefit[ed] federal candidates because the funds for all practical purposes remain[ed] under the control of the national committees." The report concluded that "[t]he use of such soft money thus allow[ed] more corporate, union treasury, and large contributions from wealthy individuals into the system."34 </s> The report discussed potential reforms, including a ban on soft money at the national and state party levels and restrictions on sham issue advocacy by nonparty groups.35 The majority expressed the view that a ban on the raising of soft money by national party committees would effectively address the use of union and corporate general treasury funds in the federal political process only if it required that candidate-specific ads be funded with hard money.36 The minority similarly recommended the elimination of soft-money contributions to political parties from individuals, corporations, and unions, as well as "reforms addressing candidate advertisements masquerading as issue ads."37 II </s> In BCRA, Congress enacted many of the committee's proposed reforms. BCRA's central provisions are designed to address Congress' concerns about the increasing use of soft money and issue advertising to influence federal elections. Title I regulates the use of soft money by political parties, officeholders, and candidates. Title II primarily prohibits corporations and labor unions from using general treasury funds for communications that are intended to, or have the effect of, influencing the outcome of federal elections. Section 403 of BCRA provides special rules for actions challenging the constitutionality of any of the Act's provisions. 2 U.S.C. A. §437h note (Supp. 2003). Eleven such actions were filed promptly after the statute went into effect in March 2002. As required by §403, those actions were filed in the District Court for the District of Columbia and heard by a three-judge court. Section 403 directed the District Court to advance the cases on the docket and to expedite their disposition "to the greatest possible extent." The court received a voluminous record compiled by the parties and ultimately delivered a decision embodied in a two-judge per curiam opinion and three separate, lengthy opinions, each of which contained extensive commentary on the facts and a careful analysis of the legal issues. 251 F. Supp. 2d 176 (2003). The three judges reached unanimity on certain issues but differed on many. Their judgment, entered on May 1, 2003, held some parts of BCRA unconstitutional and upheld others. 251 F.Supp. 2d 948. </s> As authorized by §403, all of the losing parties filed direct appeals to this Court within 10 days. 2 U.S.C.A. §437h note. On June 5, 2003, we noted probable jurisdiction and ordered the parties to comply with an expedited briefing schedule and present their oral arguments at a special hearing on September 8, 2003. 539 U.S. ___. To simplify the presentation, we directed the parties challenging provisions of BCRA to proceed first on all issues, whether or not they prevailed on any issue in the District Court. Ibid. Mindful of §403's instruction that we expedite our disposition of these appeals to the greatest extent possible, we also consider each of the issues in order. Accordingly, we first turn our attention to Title I of BCRA. III </s> Title I is Congress' effort to plug the soft-money loophole. The cornerstone of Title I is new FECA §323(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. 2 U.S.C.A. §441i(a) (Supp. 2003).38 In short, §323(a) takes national parties out of the soft-money business. The remaining provisions of new FECA §323 largely reinforce the restrictions in §323(a). New FECA §323(b) prevents the wholesale shift of soft-money influence from national to state party committees by prohibiting state and local party committees from using such funds for activities that affect federal elections. 2 U.S.C.A. §441i(b). These "Federal election activit[ies]," defined in new FECA §301(20)(A), are almost identical to the mixed-purpose activities that have long been regulated under the FEC's pre-BCRA allocation regime. 2 U.S.C.A. §431(20)(A). New FECA §323(d) reinforces these soft-money restrictions by prohibiting political parties from soliciting and donating funds to tax-exempt organizations that engage in electioneering activities. 2 U.S.C.A. §441i(d). New FECA §323(e) restricts federal candidates and officeholders from receiving, spending, or soliciting soft money in connection with federal elections and limits their ability to do so in connection with state and local elections. 2 U.S.C.A. §441i(e). Finally, new FECA §323(f) prevents circumvention of the restrictions on national, state, and local party committees by prohibiting state and local candidates from raising and spending soft money to fund advertisements and other public communications that promote or attack federal candidates. 2 U.S.C.A. §441i(f). </s> Plaintiffs mount a facial First Amendment challenge to new FECA §323, as well as challenges based on the Elections Clause, U.S. Const., Art. I, §4, principles of federalism, and the equal protection component of the Due Process Clause. We address these challenges in turn. A </s> In Buckley and subsequent cases, we have subjected restrictions on campaign expenditures to closer scrutiny than limits on campaign contributions. See, e.g., Federal Election Comm'n v. Beaumont, 539 U.S. ___, ___ (2003) (slip op., at 14); see also Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 387-388 (2000); Buckley, 424 U.S., at 19. In these cases we have recognized that contribution limits, unlike limits on expenditures, "entai[l] only a marginal restriction upon the contributor's ability to engage in free communication." Id., at 20; see also, e.g., Beaumont, supra, at ___ (slip op., at 14); Shrink Missouri, supra, at 386-388. In Buckley we said that: "A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of the contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor." 424 U.S., at 21 (footnote omitted). </s> Because the communicative value of large contributions inheres mainly in their ability to facilitate the speech of their recipients, we have said that contribution limits impose serious burdens on free speech only if they are so low as to "preven[t] candidates and political committees from amassing the resources necessary for effective advocacy." Ibid. </s> We have recognized that contribution limits may bear "more heavily on the associational right than on freedom to speak," Shrink Missouri, supra, at 388, since contributions serve "to affiliate a person with a candidate" and "enabl[e] like-minded persons to pool their resources," Buckley, 424 U.S., at 22. Unlike expenditure limits, however, which "preclud[e] most associations from effectively amplifying the voice of their adherents," contribution limits both "leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates," and allow associations "to aggregate large sums of money to promote effective advocacy." Ibid. The "overall effect" of dollar limits on contributions is "merely to require candidates and political committees to raise funds from a greater number of persons." Id., at 21-22. Thus, a contribution limit involving even "'significant interference'" with associational rights is nevertheless valid if it satisfies the "lesser demand" of being "'closely drawn'" to match a "'sufficiently important interest.'" Beaumont, supra, at ___ (slip op., at 15) (quoting Shrink Missouri, supra, at 387-388).39 </s> Our treatment of contribution restrictions reflects more than the limited burdens they impose on First Amendment freedoms. It also reflects the importance of the interests that underlie contribution limits--interests in preventing "both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption." National Right to Work, 533 U.S. 431, 440-441 (2001) (Colorado II). We have said that these interests directly implicate "'the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process.'" National Right to Work, supra, at 208 (quoting Automobile Workers, 352 U.S., at 570). Because the electoral process is the very "means through which a free society democratically translates political speech into concrete governmental action," Shrink Missouri, 528 U.S., at 401 (Breyer, J., concurring), contribution limits, like other measures aimed at protecting the integrity of the process, tangibly benefit public participation in political debate. For that reason, when reviewing Congress' decision to enact contribution limits, "there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words 'strict scrutiny.'" Id., at 400 (Breyer, J., concurring). The less rigorous standard of review we have applied to contribution limits (Buckley's "closely drawn" scrutiny) shows proper deference to Congress' ability to weigh competing constitutional interests in an area in which it enjoys particular expertise. It also provides Congress with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process. </s> Our application of this less rigorous degree of scrutiny has given rise to significant criticism in the past from our dissenting colleagues. See, e.g., Shrink Missouri, 518 U.S. 604, 635-644 (1996) (Colorado I) (Thomas, J., dissenting). We have rejected such criticism in previous cases for the reasons identified above. We are also mindful of the fact that in its lengthy deliberations leading to the enactment of BCRA, Congress properly relied on the recognition of its authority contained in Buckley and its progeny. Considerations of stare decisis, buttressed by the respect that the Legislative and Judicial Branches owe to one another, provide additional powerful reasons for adhering to the analysis of contribution limits that the Court has consistently followed since Buckley was decided. See Hilton v. South Carolina Public Railways Comm'n, 502 U.S. 197, 202 (1991).40 </s> Like the contribution limits we upheld in Buckley, §323's restrictions have only a marginal impact on the ability of contributors, candidates, officeholders, and parties to engage in effective political speech. Beaumont, 539 U.S., at ___ (slip op., at 14). Complex as its provisions may be, §323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders. </s> Plaintiffs contend that we must apply strict scrutiny to §323 because many of its provisions restrict not only contributions but also the spending and solicitation of funds raised outside of FECA's contribution limits. But for purposes of determining the level of scrutiny, it is irrelevant that Congress chose in §323 to regulate contributions on the demand rather than the supply side. See, e.g., National Right to Work, supra, at 206-211 (upholding a provision restricting PACs' ability to solicit funds). The relevant inquiry is whether the mechanism adopted to implement the contribution limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not. That is not the case here. </s> For example, while §323(a) prohibits national parties from receiving or spending nonfederal money, and §323(b) prohibits state party committees from spending nonfederal money on federal election activities, neither provision in any way limits the total amount of money parties can spend. 2 U.S.C.A. §§441i(a), (b) (Supp. 2003). Rather, they simply limit the source and individual amount of donations. That they do so by prohibiting the spending of soft money does not render them expenditure limitations.41 </s> Similarly, the solicitation provisions of §323(a) and §323(e), which restrict the ability of national party committees, federal candidates, and federal officeholders to solicit nonfederal funds, leave open ample opportunities for soliciting federal funds on behalf of entities subject to FECA's source and amount restrictions. Even §323(d), which on its face enacts a blanket ban on party solicitations of funds to certain tax-exempt organizations, nevertheless allows parties to solicit funds to the organizations' federal PACs. 2 U.S.C.A. §441i(d). As for those organizations that cannot or do not administer PACs, parties remain free to donate federal funds directly to such organizations, and may solicit funds expressly for that purpose. See infra, at 72-73 (construing §323(d)'s restriction on donations by parties to apply only to donations from a party committee's nonfederal or soft-money account). And as with §323(a), §323(d) places no limits on other means of endorsing tax-exempt organizations or any restrictions on solicitations by party officers acting in their individual capacities. 2 U.S.C.A. §§441i(a), (d). </s> Section 323 thus shows "due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views." Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980). The fact that party committees and federal candidates and officeholders must now ask only for limited dollar amounts or request that a corporation or union contribute money through its PAC in no way alters or impairs the political message "intertwined" with the solicitation. Cf. Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988) (treating solicitation restriction that required fundraisers to disclose particular information as a content-based regulation subject to strict scrutiny because it "necessarily alter[ed] the content of the speech"). And rather than chill such solicitations, as was the case in Schaumburg, the restriction here tends to increase the dissemination of information by forcing parties, candidates, and officeholders to solicit from a wider array of potential donors. As with direct limits on contributions, therefore, §323's spending and solicitation restrictions have only a marginal impact on political speech.42 </s> Finally, plaintiffs contend that the type of associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckley's contribution limits, and merit the type of strict scrutiny we have applied to attempts to regulate the internal processes of political parties. E.g., California Democratic Party v. Jones, 530 U.S. 567, 573-574 (2000). In making this argument, plaintiffs greatly exaggerate the effect of §323, contending that it precludes any collaboration among national, state, and local committees of the same party in fundraising and electioneering activities. We do not read the provisions in that way. See infra, at 51-52. Section 323 merely subjects a greater percentage of contributions to parties and candidates to FECA's source and amount limitations. Buckley has already acknowledged that such limitations "leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates." 424 U.S., at 22. The modest impact that §323 has on the ability of committees within a party to associate with each other does not independently occasion strict scrutiny. None of this is to suggest that the alleged associational burdens imposed on parties by §323 have no place in the First Amendment analysis; it is only that we account for them in the application, rather than the choice, of the appropriate level of scrutiny.43 </s> With these principles in mind, we apply the less rigorous scrutiny applicable to contribution limits to evaluate the constitutionality of new FECA §323. Because the five challenged provisions of §323 implicate different First Amendment concerns, we discuss them separately. We are mindful, however, that Congress enacted §323 as an integrated whole to vindicate the Government's important interest in preventing corruption and the appearance of corruption. New FECA §323(a)'s Restrictions on National Party Committees </s> The core of Title I is new FECA §323(a), which provides that "national committee[s] of a political party ... may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act." 2 U.S.C.A. §441i(a)(1) (Supp. 2003). The prohibition extends to "any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, or maintained, or controlled by such a national committee." §441(a)(2). The main goal of §323(a) is modest. In large part, it simply effects a return to the scheme that was approved in Buckley and that was subverted by the creation of the FEC's allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money. See supra, at 11-13, and n.7. Under that allocation regime, national parties were able to use vast amounts of soft money in their efforts to elect federal candidates. Consequently, as long as they directed the money to the political parties, donors could contribute large amounts of soft money for use in activities designed to influence federal elections.44 New §323(a) is designed to put a stop to that practice. 1.Governmental Interests Underlying New FECA§323(a) </s> The Government defends §323(a)'s ban on national parties' involvement with soft money as necessary to prevent the actual and apparent corruption of federal candidates and officeholders. Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges. In Buckley, we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECA's contribution limits, noting that such laws "deal[t] with only the most blatant and specific attempts of those with money to influence government action." 424 U.S., at 28. Thus, "[i]n speaking of 'improper influence' and 'opportunities for abuse' in addition to 'quid pro quo arrangements,' we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors." Shrink Missouri, 528 U.S., at 389; see also Colorado II, 533 U.S., at 441 (acknowledging that corruption extends beyond explicit cash-for-votes agreements to "undue influence on an officeholder's judgment"). Of "almost equal" importance has been the Government's interest in combating the appearance or perception of corruption engendered by large campaign contributions. Buckley, supra, at 27; see also Shrink Missouri, supra, at 390; Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 496-497 (1985). Take away Congress' authority to regulate the appearance of undue influence and "the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance." Shrink Missouri, 528 U.S., at 390; see also id., at 401 (Breyer, J., concurring). And because the First Amendment does not require Congress to ignore the fact that "candidates, donors, and parties test the limits of the current law," Colorado II, 533 U.S., at 457, these interests have been sufficient to justify not only contribution limits themselves, but laws preventing the circumvention of such limits, id., at 456 ("[A]ll Members of the Court agree that circumvention is a valid theory of corruption"). </s> "The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty or the plausibility of the justification raised." Shrink Missouri, supra, at 391. The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible. For nearly 30 years, FECA has placed strict dollar limits and source restrictions on contributions that individuals and other entities can give to national, state, and local party committees for the purpose of influencing a federal election. The premise behind these restrictions has been, and continues to be, that contributions to a federal candidate's party in aid of that candidate's campaign threaten to create--no less than would a direct contribution to the candidate--a sense of obligation. See Buckley, supra, at 38 (upholding FECA's $25,000 limit on aggregate yearly contributions to a candidate, political committee, and political party committee as a "quite modest restraint ... to prevent evasion of the $1,000 contribution limitation" by, among other things, "huge contributions to the candidate's political party"). This is particularly true of contributions to national parties, with which federal candidates and officeholders enjoy a special relationship and unity of interest. This close affiliation has placed national parties in a unique position, "whether they like it or not," to serve as "agents for spending on behalf of those who seek to produce obligated officeholders." Colorado II, supra, at 452; see also Shrink Missouri, supra, at 406 (Kennedy, J., dissenting) ("[Respondent] asks us to evaluate his speech claim in the context of a system which favors candidates and officeholders whose campaigns are supported by soft money, usually funneled through political parties" (emphasis added)). As discussed below, rather than resist that role, the national parties have actively embraced it. </s> The question for present purposes is whether large soft-money contributions to national party committees have a corrupting influence or give rise to the appearance of corruption. Both common sense and the ample record in these cases confirm Congress' belief that they do. As set forth above, supra, at 11-13, and n.7, the FEC's allocation regime has invited widespread circumvention of FECA's limits on contributions to parties for the purpose of influencing federal elections. Under this system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate's federal election. It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.45 </s> The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries. Thus, despite FECA's hard-money limits on direct contributions to candidates, federal officeholders have commonly asked donors to make soft-money donations to national and state committees "solely in order to assist federal campaigns," including the officeholder's own. 251 F.Supp. 2d, at 472 (Kollar-Kotelly, J.) (quoting declaration of Wade Randlett, CEO, Dashboard Technology ¶ ;¶ ;6-9 (hereinafter Randlett Decl.), App. 713-714); see also 251 F.Supp. 2d, at 471-473, 478-479 (Kollar-Kotelly, J.); id., at 842-843 (Leon, J.). Parties kept tallies of the amounts of soft money raised by each officeholder, and "the amount of money a Member of Congress raise[d] for the national political committees often affect[ed] the amount the committees g[a]ve to assist the Member's campaign." Id., at 474-475 (Kollar-Kotelly, J.). Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. Id., at 477-478 (Kollar-Kotelly, J.); id., at 824, 847 (Leon, J.). National party committees often teamed with individual candidates' campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party's higher contribution limits while still allowing donors to give to their preferred candidate. Id., at 478 (Kollar-Kotelly, J.); id., at 847-848 (Leon, J.); see also App. 1286 (Krasno & Sorauf Expert Report (characterizing the joint fundraising committee as one "in which Senate candidates in effect rais[e] soft money for use in their own races")). Even when not participating directly in the fundraising, federal officeholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to officeholders. 251 F.Supp. 2d, at 487-488 (Kollar-Kotelly, J.) ("[F]or a Member not to know the identities of these donors, he or she must actively avoid such knowledge, as it is provided by the national political parties and the donors themselves"); id., at 853-855 (Leon, J.). </s> For their part, lobbyists, CEOs, and wealthy individuals alike all have candidly admitted donating substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials. For example, a former lobbyist and partner at a lobbying firm in Washington, D.C., stated in his declaration: "'You are doing a favor for somebody by making a large [soft-money] donation and they appreciate it. Ordinarily, people feel inclined to reciprocate favors. Do a bigger favor for someone--that is, write a larger check--and they feel even more compelled to reciprocate. In my experience, overt words are rarely exchanged about contributions, but people do have understandings.'" Id., at 493 (Kollar-Kotelly, J.) (quoting declaration of Robert Rozen, partner, Ernst & Young ¶ ;14; see 8-R Defs. Exhs., Tab 33).46 </s> Particularly telling is the fact that, in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology. See, e.g., 251 F.Supp. 2d, at 508-510 (Kollar-Kotelly, J.) (citing Mann Expert Report Tbls. 5-6); 251 F.Supp. 2d, at 509 ("'Giving soft money to both parties, the Republicans and the Democrats, makes no sense at all unless the donor feels that he or she is buying access.'" (quoting declaration of former Sen. Dale Bumpers ¶ ;15, App. 175)).47 </s> The evidence from the federal officeholders' perspective is similar. For example, one former Senator described the influence purchased by nonfederal donations as follows: "'Too often, Members' first thought is not what is right or what they believe, but how it will affect fundraising. Who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about--and quite possibly votes on--an issue?... When you don't pay the piper that finances your campaigns, you will never get any more money from that piper. Since money is the mother's milk of politics, you never want to be in that situation.'" 251 F.Supp. 2d, at 481 (Kollar-Kotelly, J.) (quoting declaration of former Sen. Alan Simpson ¶ ;10 (hereinafter Simpson Decl.), App. 811); 251 F.Supp. 2d, at 851 (Leon, J.) (same). </s> See also id., at 489 (Kollar-Kotelly, J.) ("'The majority of those who contribute to political parties do so for business reasons, to gain access to influential Members of Congress and to get to know new Members." (quoting Hickmott Decl., Exh. A, ¶ ;46)). By bringing soft-money donors and federal candidates and officeholders together, "[p]arties are thus necessarily the instruments of some contributors whose object is not to support the party's message or to elect party candidates across the board, but rather to support a specific candidate for the sake of a position on one narrow issue, or even to support any candidate who will be obliged to the contributors." Colorado II, 533 U.S., at 451-452. </s> Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But the record is to the contrary. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress' failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. See, e.g., 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.); id., at 852 (Leon, J.); App. 390-394 (declaration of Sen. John McCain ¶ ;¶ ;5, 8-11 (hereinafter McCain Decl.)); App. 811 (Simpson Decl. ¶ ;10) ("Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform"); App. 805 (declaration of former Sen. Paul Simon ¶ ;¶ ;13-14). To claim that such actions do not change legislative outcomes surely misunderstands the legislative process. </s> More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress' legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing "undue influence on an officeholder's judgment, and the appearance of such influence." Colorado II, supra, at 441. Many of the "deeply disturbing examples" of corruption cited by this Court in Buckley, 424 U.S., at 27, to justify FECA's contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. See Buckley, 519 F.2d, at 821, 839-840, n.36; nn. 5-6, supra. Even if that access did not secure actual influence, it certainly gave the "appearance of such influence." Colorado II, supra, at 441; see also 519 F. 2d, at 838. </s> The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See 251 F. Supp. 2d, at 492-506 (Kollar-Kotelly, J.). As one former Senator put it: "'Special interests who give large amounts of soft money to political parties do in fact achieve their objectives. They do get special access. Sitting Senators and House Members have limited amounts of time, but they make time available in their schedules to meet with representatives of business and unions and wealthy individuals who gave large sums to their parties. These are not idle chit-chats about the philosophy of democracy.... Senators are pressed by their benefactors to introduce legislation, to amend legislation, to block legislation, and to vote on legislation in a certain way.'" Id., at 496 (Kollar-Kotelly, J.) (quoting declaration of former Sen. Warren Rudman ¶ ;7 (hereinafter Rudman Decl.), App. 742); 251 F. Supp. 2d, at 858 (Leon, J.) (same). </s> So pervasive is this practice that the six national party committees actually furnish their own menus of opportunities for access to would-be soft-money donors, with increased prices reflecting an increased level of access. For example, the DCCC offers a range of donor options, starting with the $10,000-per-year Business Forum program, and going up to the $100,000-per-year National Finance Board program. The latter entitles the donor to bimonthly conference calls with the Democratic House leadership and chair of the DCCC, complimentary invitations to all DCCC fundraising events, two private dinners with the Democratic House leadership and ranking members, and two retreats with the Democratic House leader and DCCC chair in Telluride, Colorado, and Hyannisport, Massachusetts. Id., at 504-505 (Kollar-Kotelly, J.); see also id., at 506 (describing records indicating that DNC offered meetings with President in return for large donations); id., at 502-503 (describing RNC's various donor programs); id., at 503-504 (same for NRSC); id., at 500-503 (same for DSCC); id., at 504 (same for NRCC). Similarly, "the RNC's donor programs offer greater access to federal office holders as the donations grow larger, with the highest level and most personal access offered to the largest soft money donors." Id., at 500-503 (finding, further, that the RNC holds out the prospect of access to officeholders to attract soft-money donations and encourages officeholders to meet with large soft-money donors); accord, id., at 860-861 (Leon, J.). </s> Despite this evidence and the close ties that candidates and officeholders have with their parties, Justice Kennedy would limit Congress' regulatory interest only to the prevention of the actual or apparent quid pro quo corruption "inherent in" contributions made directly to, contributions made at the express behest of, and expenditures made in coordination with, a federal officeholder or candidate. Post, at 8-10, 15. Regulation of any other donation or expenditure--regardless of its size, the recipient's relationship to the candidate or officeholder, its potential impact on a candidate's election, its value to the candidate, or its unabashed and explicit intent to purchase influence--would, according to Justice Kennedy, simply be out of bounds. This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.48 </s> Justice Kennedy's interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation. The evidence set forth above, which is but a sampling of the reams of disquieting evidence contained in the record, convincingly demonstrates that soft-money contributions to political parties carry with them just such temptation. </s> Justice Kennedy likewise takes too narrow a view of the appearance of corruption. He asserts that only those transactions with "inherent corruption potential," which he again limits to contributions directly to candidates, justify the inference "that regulating the conduct will stem the appearance of real corruption." Post, at 14.49 In our view, however, Congress is not required to ignore historical evidence regarding a particular practice or to view conduct in isolation from its context. To be sure, mere political favoritism or opportunity for influence alone is insufficient to justify regulation. Post, at 12-14. As the record demonstrates, it is the manner in which parties have sold access to federal candidates and officeholders that has given rise to the appearance of undue influence. Implicit (and, as the record shows, sometimes explicit) in the sale of access is the suggestion that money buys influence. It is no surprise then that purchasers of such access unabashedly admit that they are seeking to purchase just such influence. It was not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption. </s> In sum, there is substantial evidence to support Congress' determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption. 2.New FECA §323(a)'s Restriction on Spending and Receiving Soft Money </s> Plaintiffs and The Chief Justice contend that §323(a) is impermissibly overbroad because it subjects all funds raised and spent by national parties to FECA's hard-money source and amount limits, including, for example, funds spent on purely state and local elections in which no federal office is at stake.50 Post, 2-5 (Rehnquist, C.J., dissenting). Such activities, The Chief Justice asserts, pose "little or no potential to corrupt ... federal candidates or officeholders." Post, at 5 (dissenting opinion). This observation is beside the point. Section 323(a), like the remainder of §323, regulates contributions, not activities. As the record demonstrates, it is the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have made all large soft-money contributions to national parties suspect. As one expert noted, "'[t]here is no meaningful distinction between the national party committees and the public officials who control them.'" 251 F.Supp. 2d, at 468-469 (Kollar-Kotelly, J.) (quoting Mann Expert Report 29). The national committees of the two major parties are both run by, and largely composed of, federal officeholders and candidates. Indeed, of the six national committees of the two major parties, four are composed entirely of federal officeholders. Ibid. The nexus between national parties and federal officeholders prompted one of Title I's framers to conclude: "Because the national parties operate at the national level, and are inextricably intertwined with federal officeholders and candidates, who raise the money for the national party committees, there is a close connection between the funding of the national parties and the corrupting dangers of soft money on the federal political process. The only effective way to address this [soft-money] problem of corruption is to ban entirely all raising and spending of soft money by the national parties." 148 Cong. Rec. H409 (Feb. 13, 2002) (statement of Rep. Shays). </s> Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately used. </s> This close affiliation has also placed national parties in a position to sell access to federal officeholders in exchange for soft-money contributions that the party can then use for its own purposes. Access to federal officeholders is the most valuable favor the national party committees are able to give in exchange for large donations. The fact that officeholders comply by donating their valuable time indicates either that officeholders place substantial value on the soft-money contribution themselves, without regard to their end use, or that national committees are able to exert considerable control over federal officeholders. See, e.g., App. 1196-1198 (Expert Report of Donald P. Green, Yale University) ("Once elected to legislative office, public officials enter an environment in which political parties-in-government control the resources crucial to subsequent electoral success and legislative power. Political parties organize the legislative caucuses that make committee assignments"); App. 1298 (Krasno & Sorauf Expert Report) (indicating that officeholders' re-election prospects are significantly influenced by attitudes of party leadership). Either way, large soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put. As discussed above, Congress had sufficient grounds to regulate the appearance of undue influence associated with this practice. The Government's strong interests in preventing corruption, and in particular the appearance of corruption, are thus sufficient to justify subjecting all donations to national parties to the source, amount, and disclosure limitations of FECA.51 3.New FECA §323(a)'s Restriction on Soliciting or Directing Soft Money </s> Plaintiffs also contend that §323(a)'s prohibition on national parties' soliciting or directing soft-money contributions is substantially overbroad. The reach of the solicitation prohibition, however, is limited. It bars only solicitations of soft money by national party committees and by party officers in their official capacities. The committees remain free to solicit hard money on their own behalf, as well as to solicit hard money on behalf of state committees and state and local candidates.52 They also can contribute hard money to state committees and to candidates. In accordance with FEC regulations, furthermore, officers of national parties are free to solicit soft money in their individual capacities, or, if they are also officials of state parties, in that capacity. See 67 Fed. Reg. 49083 (2002). This limited restriction on solicitation follows sensibly from the prohibition on national committees' receiving soft money. The same observations that led us to approve the latter compel us to reach the same conclusion regarding the former. A national committee is likely to respond favorably to a donation made at its request regardless of whether the recipient is the committee itself or another entity. This principle accords with common sense and appears elsewhere in federal laws. E.g., 18 U.S.C. §201(b)(2) (prohibition on public officials "demand[ing] [or] seek[ing] ... anything of value personally or for any other person or entity ..." (emphasis added)); 5 CFR §2635.203(f)(2) (2003) (restriction on gifts to federal employees encompasses gifts "[g]iven to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee"). </s> Plaintiffs argue that BCRA itself demonstrates the overbreadth of §323(a)'s solicitation ban. They point in particular to §323(e), which allows federal candidates and officeholders to solicit limited amounts of soft money from individual donors under certain circumstances. Compare 2 U.S.C.A §441i(a) with §441i(e) (Supp. 2003). The differences between §§323(a) and 323(e), however, are without constitutional significance. We have recognized that "the 'differing structures and purposes' of different entities 'may require different forms of regulation in order to protect the integrity of the electoral process,'" National Right to Work, 479 U.S. 238, 258, n.11 (1986) (MCFL); Buckley, 424 U.S., at 105. The differences between the two provisions reflect Congress' reasonable judgments about the function played by national committees and the interactions between committees and officeholders, subjects about which Members of Congress have vastly superior knowledge. 4.New FECA §323(a)'s Application to Minor Parties </s> The McConnell and political party plaintiffs contend that §323(a) is substantially overbroad and must be stricken on its face because it impermissibly infringes the speech and associational rights of minor parties such as the Libertarian National Committee, which, owing to their slim prospects for electoral success and the fact that they receive few large soft-money contributions from corporate sources, pose no threat of corruption comparable to that posed by the RNC and DNC. In Buckley, we rejected a similar argument concerning limits on contributions to minor-party candidates, noting that "any attempt to exclude minor parties and independents en masse from the Act's contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election." 424 U.S., at 34-35. We have thus recognized that the relevance of the interest in avoiding actual or apparent corruption is not a function of the number of legislators a given party manages to elect. It applies as much to a minor party that manages to elect only one of its members to federal office as it does to a major party whose members make up a majority of Congress. It is therefore reasonable to require that all parties and all candidates follow the same set of rules designed to protect the integrity of the electoral process. We add that nothing in §323(a) prevents individuals from pooling resources to start a new national party. Post, at 5 (Kennedy, J., dissenting). Only when an organization has gained official status, which carries with it significant benefits for its members, will the proscriptions of §323(a) apply. Even then, a nascent or struggling minor party can bring an as-applied challenge if §323(a) prevents it from "amassing the resources necessary for effective advocacy." Buckley, supra, at 21. 5.New FECA §323(a)'s Associational Burdens </s> Finally, plaintiffs assert that §323(a) is unconstitutional because it impermissibly interferes with the ability of national committees to associate with state and local committees. By way of example, plaintiffs point to the Republican Victory Plans, whereby the RNC acts in concert with the state and local committees of a given State to plan and implement joint, full-ticket fundraising and electioneering programs. See App. 693, 694-697 (declaration of John Peschong, RNC Western Reg. Political Dir. (describing the Republican Victory Plans)). The political parties assert that §323(a) outlaws any participation in Victory Plans by RNC officers, including merely sitting down at a table and engaging in collective decisionmaking about how soft money will be solicited, received, and spent. Such associational burdens, they argue, are too great for the First Amendment to bear. We are not persuaded by this argument because it hinges on an unnaturally broad reading of the terms "spend," "receive," "direct," and "solicit." 2 U.S.C.A. §441i(a) (Supp. 2003). Nothing on the face of §323(a) prohibits national party officers, whether acting in their official or individual capacities, from sitting down with state and local party committees or candidates to plan and advise how to raise and spend soft money. As long as the national party officer does not personally spend, receive, direct, or solicit soft money, §323(a) permits a wide range of joint planning and electioneering activity. Intervenor-defendants, the principal drafters and proponents of the legislation, concede as much. Brief for Intervenor-Defendants Sen. John McCain etal. in No. 02-1674 etal., p.22 ("BCRA leaves parties and candidates free to coordinate campaign plans and activities, political messages, and fundraising goals with one another"). The FEC's current definitions of §323(a)'s terms are consistent with that view. See, e.g., 11 CFR §300.2(m) (2002) (defining "solicit" as "to ask ... another person" (emphasis added)); §300.2(n) (defining "direct" as "to ask a person who has expressed an intent to make a contribution . . . to make that contribution ... including through a conduit or intermediary" (emphasis added)); §300.2(c) (laying out the factors that determine whether an entity will be considered to be controlled by a national committee). </s> Given the straightforward meaning of this provision, Justice Kennedy is incorrect that "[a] national party's mere involvement in the strategic planning of fundraising for a state ballot initiative" or its assistance in developing a state party's Levin-money fundraising efforts risks a finding that the officers are in "'indirect control'" of the state party and subject to criminal penalties. Post, at 5-6. Moreover, §323(a) leaves national party committee officers entirely free to participate, in their official capacities, with state and local parties and candidates in soliciting and spending hard money; party officials may also solicit soft money in their unofficial capacities. </s> Accordingly, we reject the plaintiffs' First Amendment challenge to new FECA §323(a). New FECA §323(b)'s Restrictions on State and Local Party Committees </s> In constructing a coherent scheme of campaign finance regulation, Congress recognized that, given the close ties between federal candidates and state party committees, BCRA's restrictions on national committee activity would rapidly become ineffective if state and local committees remained available as a conduit for soft-money donations.53 Section 323(b) is designed to foreclose wholesale evasion of §323(a)'s anticorruption measures by sharply curbing state committees' ability to use large soft-money contributions to influence federal elections. The core of §323(b) is a straightforward contribution regulation: It prevents donors from contributing nonfederal funds to state and local party committees to help finance "Federal election activity." 2 U.S.CA. §441i(b)(1) (Supp. 2003). The term "Federal election activity" encompasses four distinct categories of electioneering: (1) voter registration activity during the 120 days preceding a regularly scheduled federal election; (2) voter identification, get-out-the-vote (GOTV), and generic campaign activity54 that is "conducted in connection with an election in which a candidate for Federal office appears on the ballot"; (3) any "public communication"55 that "refers to a clearly identified candidate for Federal office" and "promotes," "supports," "attacks," or "opposes" a candidate for that office; and (4) the services provided by a state committee employee who dedicates more than 25% of his or her time to "activities in connection with a Federal election." §§431(20)(A)(i)-(iv). The Act explicitly excludes several categories of activity from this definition: public communications that refer solely to nonfederal candidates;56 contributions to nonfederal candidates;57 state and local political conventions; and the cost of grassroots campaign materials like bumper stickers that refer only to state candidates. §431(20)(B). All activities that fall within the statutory definition must be funded with hard money. §441i(b)(1). Section 323(b)(2), the so-called Levin Amendment, carves out an exception to this general rule. A refinement on the pre-BCRA regime that permitted parties to pay for certain activities with a mix of federal and nonfederal funds, the Levin Amendment allows state and local party committees to pay for certain types of federal election activity with an allocated ratio of hard money and "Levin funds"--that is, funds raised within an annual limit of $10,000 per person. 2 U.S.C.A. §441i(b)(2). Except for the $10,000 cap and certain related restrictions to prevent circumvention of that limit, §323(b)(2) leaves regulation of such contributions to the States.58 </s> The scope of the Levin Amendment is limited in two ways. First, state and local parties can use Levin money to fund only activities that fall within categories (1) and (2) of the statute's definition of federal election activity--namely, voter registration activity, voter identification drives, GOTV drives, and generic campaign activities. 2 U.S.C.A. §441i(b)(2)(A). And not all of these activities qualify: Levin funds cannot be used to pay for any activities that refer to "a clearly identified candidate for Federal office"; they likewise cannot be used to fund broadcast communications unless they refer "solely to a clearly identified candidate for State or local office." §§441i(b)(2)(B)(i)-(ii). </s> Second, both the Levin funds and the allocated portion of hard money used to pay for such activities must be raised entirely by the state or local committee that spends them. §441i(b)(2)(B)(iv). This means that a state party committee cannot use Levin funds transferred from other party committees to cover the Levin funds portion of a Levin Amendment expenditure. It also means that a state party committee cannot use hard money transferred from other party committees to cover the hard-money portion of a Levin Amendment expenditure. Furthermore, national committees, federal candidates, and federal officeholders generally may not solicit Levin funds on behalf ofstate committees, and state committees may not team up to raise Levin funds. §441i(b)(2)(C). They can, however, jointly raise the hard money used to make Levin expenditures. 1.Governmental Interests Underlying New FECA§323(b) </s> We begin by noting that, in addressing the problem of soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. Its conclusion, based on the evidence before it, was that the corrupting influence of soft money does not insinuate itself into the political process solely through national party committees. Rather, state committees function as an alternate avenue for precisely the same corrupting forces.59 Indeed, both candidates and parties already ask donors who have reached the limit on their direct contributions to donate to state committees.60 There is at least as much evidence as there was in Buckley that such donations have been made with the intent--and in at least some cases the effect--of gaining influence over federal officeholders.61 Section 323(b) thus promotes an important governmental interest by confronting the corrupting influence that soft-money donations to political parties already have. Congress also made a prediction. Having been taught the hard lesson of circumvention by the entire history of campaign finance regulation, Congress knew that soft-money donors would react to §323(a) by scrambling to find another way to purchase influence. It was "neither novel nor implausible," Shrink Missouri, 512 U.S. 622, 665 (1994), particularly when, as here, those predictions are so firmly rooted in relevant history and common sense. Preventing corrupting activity from shifting wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest. 2.New FECA §323(b)'s Tailoring </s> Plaintiffs argue that even if some legitimate interest might be served by §323(b), the provision's restrictions are unjustifiably burdensome and therefore cannot be considered "closely drawn" to match the Government's objectives. They advance three main contentions in support of this proposition. First, they argue that the provision is substantially overbroad because it federalizes activities that pose no conceivable risk of corrupting or appearing to corrupt federal officeholders. Second, they argue that the Levin Amendment imposes an unconstitutional burden on the associational rights of political parties. Finally, they argue that the provision prevents them from amassing the resources they need to engage in effective advocacy. We address these points in turn. a.§323(b)'s Application to Federal Election Activity </s> Plaintiffs assert that §323(b) represents a new brand of pervasive federal regulation of state-focused electioneering activities that cannot possibly corrupt or appear to corrupt federal officeholders and thus goes well beyond Congress' concerns about the corruption of the federal electoral process. We disagree. It is true that §323(b) captures some activities that affect state campaigns for nonfederal offices. But these are the same sorts of activities that already were covered by the FEC's pre-BCRA allocation rules, and thus had to be funded in part by hard money, because they affect federal as well as state elections. See 11 CFR §106.5 (2002). As a practical matter, BCRA merely codifies the principles of the FEC's allocation regime while at the same time justifiably adjusting the formulas applicable to these activities in order to restore the efficacy of FECA's longtime statutory restriction--approved by the Court and eroded by the FEC's allocation regime--on contributions to state and local party committees for the purpose of influencing federal elections. See 2 U.S.C. §§431(8)(A), 441a(a)(1)(C); see also Buckley, 453 U.S. 182 (1981) (upholding FECA's $5,000 limit on contributions to multicandidate political committees). </s> Like the rest of Title I, §323(b) is premised on Congress' judgment that if a large donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption or the appearance of corruption. As we explain below, §323(b) is narrowly focused on regulating contributions that pose the greatest risk of this kind of corruption: those contributions to state and local parties that can be used to benefit federal candidates directly. Further, these regulations all are reasonably tailored, with various temporal and substantive limitations designed to focus the regulations on the important anti-corruption interests to be served. We conclude that §323(b) is a closely-drawn means of countering both corruption and the appearance of corruption. </s> The first two categories of "Federal election activity," voter registration efforts, §301(20)(A)(i), and voter identification, GOTV, and generic campaign activities conducted in connection with a federal election, §301(20)(A)(ii), clearly capture activity that benefits federal candidates. Common sense dictates, and it was "undisputed" below, that a party's efforts to register voters sympathetic to that party directly assist the party's candidates for federal office. 251 F.Supp. 2d, at 460 (Kollar-Kotelly, J.). It is equally clear that federal candidates reap substantial rewards from any efforts that increase the number of like-minded registered voters who actually go to the polls.62 See, e.g., id., at 459 ("'[The evidence] shows quite clearly that a campaign that mobilizes residents of a highly Republican precinct will produce a harvest of votes for Republican candidates for both state and federal offices. A campaign need not mention federal candidates to have a direct effect on voting for such a candidate.... [G]eneric campaign activity has a direct effect on federal elections'" (quoting Green Expert Report 14)). Representatives of the four major congressional campaign committees confirmed that they "'transfe[r] federal and nonfederal money to state and/or local party committees for'" both voter registration and get-out-the-vote activities, and that "'[t]hese efforts have a significant effect on the election of federal candidates.'" 251 F.Supp. 2d, at 459, 461 (citationsomitted). </s> The record also makes quite clear that federal officeholders are grateful for contributions to state and local parties that can be converted into GOTV-type efforts. See id., at 459 (quoting a letter thanking a California Democratic Party donor and noting that CDP's voter registration and GOTV efforts would help "'increase the number of Californian Democrats in the United States Congress'" and "'deliver California's 54 electoral votes'" to the Democratic presidential candidate). </s> Because voter registration, voter identification, GOTV, and generic campaign activity all confer substantial benefits on federal candidates, the funding of such activities creates a significant risk of actual and apparent corruption. Section 323(b) is a reasonable response to that risk. Its contribution limitations are focused on the subset of voter registration activity that is most likely to affect the election prospects of federal candidates: activity that occurs within 120 days before a federal election. And if the voter registration drive does not specificallymention a federal candidate, state committees can take advantage of the Levin Amendment's higher contribution limits and relaxed source restrictions. 2 U.S.C.A. §§441i(b)(2)(B)(i)-(ii) (Supp. 2003). Similarly, the contribution limits applicable to §301(20)(A)(ii) activities target only those voter identification, GOTV, and generic campaign efforts that occur "in connection with an election in which a candidate for a Federal office appears on the ballot." 2 U.S.C.A. §431(20)(A)(ii). Appropriately, in implementing this subsection, the FEC has categorically excluded all activity that takes place during the run-up to elections when no federal office is at stake.63 Furthermore, state committees can take advantage of the Levin Amendment's higher contribution limits to fund any §301(A)(20)(i) and §301(A)(20)(ii) activities that do not specifically mention a federal candidate. 2 U.S.C.A. §§441i(b)(2)(B)(i)-(ii). The prohibition on the use of soft money in connection with these activities is therefore closely drawn to meet the sufficiently important governmental interests of avoiding corruption and its appearance. </s> "Public communications" that promote or attack a candidate for federal office--the third category of "Federal election activity," §301(20)(A)(iii)--also undoubtedly have a dramatic effect on federal elections. Such ads were a prime motivating force behind BCRA's passage. See 3 1998 Senate Report 4535 (additional views of Sen. Collins) ("[T]he hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble"). As explained below, any public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participating. The record on this score could scarcely be more abundant. Given the overwhelming tendency of public communications, as carefully defined in §301(20)(A)(iii), to benefit directly federal candidates, we hold that application of §323(b)'s contribution caps to such communications is also closely drawn to the anticorruption interest it is intended to address.64 </s> As for the final category of "Federal election activity," §301(20)(A)(iv), we find that Congress' interest in preventing circumvention of §323(b)'s other restrictions justifies the requirement that state and local parties spend federal funds to pay the salary of any employee spending more than 25% of his or her compensated time on activities in connection with a federal election. In the absence of this provision, a party might use soft money to pay for the equivalent of a full-time employee engaged in federal electioneering, by the simple expedient of dividing the federal workload among multiple employees. Plaintiffs have suggested no reason for us to strike down this provision. Accordingly, we give "deference to [the] congressional determination of the need for [this] prophylactic rule." National Conservative Political Action Comm., 470 U.S., at 500. b.Associational Burdens Imposed by the LevinAmendment </s> Plaintiffs also contend that §323(b) is unconstitutional because the Levin Amendment unjustifiably burdens association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. We recognize, as we have in the past, the importance of preserving the associational freedom of parties. See, e.g., California Democratic Party v. Jones, 530 U.S. 567 (2000); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989). But not every minor restriction on parties' otherwise unrestrained ability to associate is of constitutional dimension. See Colorado II, 533 U.S., at 450, n. 11. As an initial matter, we note that state and local parties can avoid these associational burdens altogether by forgoing the Levin Amendment option and electing to pay for federal election activities entirely with hard money. But in any event, the restrictions on the use, transfer, and raising of Levin funds are justifiable anticircumvention measures. Without the ban on transfers of Levin funds among state committees, donors could readily circumvent the $10,000 limit on contributions to a committee's Levin account by making multiple $10,000 donations to various committees that could then transfer the donations to the committee of choice.65 The same anticircumvention goal undergirds the ban on joint solicitation of Levin funds. Without this restriction, state and local committees could organize "all hands" fundraisers at which individual, corporate, or union donors could make large soft-money donations to be divided between the committees. In that case, the purpose, if not the letter, of §323(b)(2)'s $10,000 limit would be thwarted: Donors could make large, visible contributions at fundraisers, which would provide ready means for corrupting federal officeholders. Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme. </s> Section 323(b)(2)(B)(iv)'s apparent prohibition on the transfer of hard money by a national, state, or local committee to help fund the allocable hard-money portion of a separate state or local committee's Levin expenditures presents a closer question. 2 U.S.C.A. §441i(b)(2)(B)(iv) (Supp. 2003). The Government defends the restriction as necessary to prevent the donor committee, particularly a national committee, from leveraging the transfer of federal money to wrest control over the spending of the recipient committee's Levin funds. This purported interest is weak, particularly given the fact that §323(a) already polices attempts by national parties to engage in such behavior. See 2 U.S.C.A. §441i(a)(2) (extending §323(a)'s restrictions to entities controlled by national party committees). However, the associational burdens posed by the hard-money transfer restriction are so insubstantial as to be de minimis. Party committees, including national party committees, remain free to transfer unlimited hard money so long as it is not used to fund Levin expenditures. State and local party committees can thus dedicate all "homegrown" hard money to their Levin activities while relying on outside transfers to defray the costs of other hard-money expenditures. Given the strong anticircumvention interest vindicated by §323(b)(2)(B)(iv)'s restriction on the transfer of Levin funds, we will not strike down the entire provision based upon such an attenuated claim of associational infringement. c.New FECA §323(b)'s Impact on Parties' Abilityto Engage in Effective Advocacy </s> Finally, plaintiffs contend that §323(b) is unconstitutional because its restrictions on soft-money contributions to state and local party committees will prevent them from engaging in effective advocacy. As Judge Kollar-Kotelly noted, the political parties' evidence regarding the impact of BCRA on their revenues is "speculative and not based on any analysis." 251 F.Supp. 2d, at 524. If the history of campaign finance regulation discussed above proves anything, it is that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that §323(b) may reduce the relative amount of money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether §323(b) reduces the amount of funds available over previous election cycles, but whether it is "so radical in effect as to ... drive the sound of [the recipient's] voice below the level of notice." Shrink Missouri, 528 U.S., at 397. If indeed state or local parties can make such a showing, as-applied challenges remain available. We accordingly conclude that §323(b), on its face, is closely drawn to match the important governmental interests of preventing corruption and the appearance of corruption. New FECA §323(d)'s Restrictions on Parties' Solicitations for, and Donations to, Tax-Exempt Organizations </s> Section 323(d) prohibits national, state, and local party committees, and their agents or subsidiaries, from "solicit[ing] any funds for, or mak[ing] or direct[ing] any donations" to, any organization established under §501(c) of the Internal Revenue Code66 that makes expenditures in connection with an election for federal office, and any political organizations established under §527 "other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office."67 2 U.S.C.A. §441i(d) (Supp. 2003). The District Court struck down the provision on its face. We reverse and uphold §323(d), narrowly construing the section's ban on donations to apply only to the donation of funds not raised in compliance with FECA. 1.New FECA §323(d)'s Regulation of Solicitations </s> The Government defends §323(d)'s ban on solicitations to tax-exempt organizations engaged in political activity as preventing circumvention of Title I's limits on contributions of soft money to national, state, and local party committees. That justification is entirely reasonable. The history of Congress' efforts at campaign finance reform well demonstrates that "candidates, donors, and parties test the limits of the current law." Colorado II, 533 U.S., at 457. Absent the solicitation provision, national, state, and local party committees would have significant incentives to mobilize their formidable fundraising apparatuses, including the peddling of access to federal officeholders, into the service of like-minded tax-exempt organizations that conduct activities benefiting their candidates.68 All of the corruption and appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Donations made at the behest of party committees would almost certainly be regarded by party officials, donors, and federal officeholders alike as benefiting the party as well as its candidates. Yet, by soliciting the donations to third-party organizations, the parties would avoid FECA's source-and-amount limitations, as well as its disclosure restrictions. See 251 F.Supp. 2d, at 348 (Henderson, J.) (citing various declarations demonstrating that, prior to BCRA, most tax-exempt organizations did not disclose the source or amount of contributions); id., at 521 (Kollar-Kotelly, J.) (same). Experience under the current law demonstrates that Congress' concerns about circumvention are not merely hypothetical. Even without the added incentives created by Title I, national, state, and local parties already solicit unregulated soft-money donations to tax-exempt organizations for the purpose of supporting federal electioneering activity. See, e.g., 3 1998 Senate Report 4013 ("In addition to direct contributions from the RNC to nonprofit groups, the senior leadership of the RNC helped to raise funds for many of the coalition's nonprofit organizations"); id., at 5983 (minority views) ("Tax-exempt 'issue advocacy' groups and other conduits were systematically used to circumvent federal campaign finance laws"); 251 F.Supp. 2d, at 517 (Kollar-Kotelly, J.); id., at 848 (Leon, J.). Parties and candidates have also begun to take advantage of so-called "politician 527s," which are little more than soft-money fronts for the promotion of particular federal officeholders and their interests. See id., at 519 (Kollar-Kotelly, J.) ("'Virtually every member of Congress in a formal leadership position has his or her own 527 group.... In all, Public Citizen found 63 current members of Congress who have their own 527s'" (quoting Public Citizen Congress Watch, Congressional Leaders' Soft Money Accounts Show Need for Campaign Finance Reform Bills, Feb. 26, 2002, p. 6)); 251 F.Supp. 2d, at 849-850 (Leon, J.). These 527s have been quite successful at raising substantial sums of soft money from corporate interests, as well as from the national parties themselves. See id., at 519-520 (Kollar-Kotelly, J.) (finding that 27 industries had each donated over $100,000 in a single year to the top 25 politician 527 groups and that the DNC was the single largest contributor to politician 527 groups (citing Public Citizen Congress Watch, supra, at 10-11)); 251 F.Supp. 2d, at 850 (Leon, J.) (same). Given BCRA's tighter restrictions on the raising and spending of soft money, the incentives for parties to exploit such organizations will only increase. </s> Section 323(d)'s solicitation restriction is closely drawn to prevent political parties from using tax-exempt organizations as soft-money surrogates. Though phrased as an absolute prohibition, the restriction does nothing more than subject contributions solicited by parties to FECA's regulatory regime, leaving open substantial opportunities for solicitation and other expressive activity in support of these organizations. First, and most obviously, §323(d) restricts solicitations only to those §501(c) groups "mak[ing] expenditures or disbursements in connection with an election for Federal office," 2 U.S.C.A. §441i(d)(1) (Supp. 2003), and to §527 organizations, which by definition engage in partisan political activity, §441i(d)(2); 26 U.S.C. §527(e). Second, parties remain free to solicit hard-money contributions to a §501(c)'s federal PAC, as well as to §527 organizations that already qualify as federal PACs.69 Third, §323(d) allows parties to endorse qualifying organizations in ways other than direct solicitations of unregulated donations. For example, with respect to §501(c) organizations that are prohibited from administering PACs, parties can solicit hard-money donations to themselves for the express purpose of donating to these organizations. See supra, at 72-73. Finally, as with §323(a), §323(d) in no way restricts solicitations by party officers acting in their individual capacities. 2 U.S.C.A. §441i(d) (extending restrictions to solicitations and donations made by "an officer or agent acting on behalf of any such party committee" (emphasis added)). </s> In challenging §323(d)'s ban on solicitations, plaintiffs renew the argument they made with respect to §323(a)'s solicitation restrictions: that it cannot be squared with §323(e), which allows federal candidates and officeholders to solicit limited donations of soft money to tax-exempt organizations that engage in federal election activities. Compare 2 U.S.C.A. §441i(d) with §441i(e)(4). But if §323(d)'s restrictions on solicitations are otherwise valid, they are not rendered unconstitutional by the mere fact that Congress chose not to regulate the activities of another group as stringently as it might have. See National Right to Work, 384 U.S. 641, 656-657 (1966). In any event, the difference between the two provisions is fully explained by the fact that national party officers, unlike federal candidates and officeholders, are able to solicit soft money on behalf of nonprofit organizations in their individual capacities. Section 323(e), which is designed to accommodate the individual associational and speech interests of candidates and officeholders in lending personal support to nonprofit organizations, also places tight content, source, and amount restrictions on solicitations of soft money by federal candidates and officeholders. Given those limits, as well as the less rigorous standard of review, the greater allowances of §323(e) do not render §323(d)'s solicitation restriction facially invalid. 2.New FECA §323(d)'s Regulation of Donations </s> Section 323(d) also prohibits national, state, and local party committees from making or directing "any donatio[n]" to qualifying §501(c) or §527 organizations. 2 U.S.C.A. §441i(d) (Supp. 2003). The Government again defends the restriction as an anticircumvention measure. We agree insofar as it prohibits the donation of soft money. Absent such a restriction, state and local party committees could accomplish directly what the antisolicitation restrictions prevent them from doing indirectly--namely, raising large sums of soft money to launder through tax-exempt organizations engaging in federal election activities. Because the party itself would be raising and collecting the funds, the potential for corruption would be that much greater. We will not disturb Congress' reasonable decision to close that loophole, particularly given a record demonstrating an already robust practice of parties' making such donations. See 251 F.Supp. 2d, at 517-518 (Kollar-Kotelly); id., at 848-849 (Leon, J.). The prohibition does raise overbreadth concerns if read to restrict donations from a party's federal account--i.e., funds that have already been raised in compliance with FECA's source, amount, and disclosure limitations. Parties have many valid reasons for giving to tax-exempt organizations, not the least of which is to associate themselves with certain causes and, in so doing, to demonstrate the values espoused by the party. A complete ban on donations prevents parties from making even the "general expression of support" that a contribution represents. Buckley, 424 U.S., at 21. At the same time, prohibiting parties from donating funds already raised in compliance with FECA does little to further Congress' goal of preventing corruption or the appearance of corruption of federal candidates and officeholders. </s> The Government asserts that the restriction is necessary to prevent parties from leveraging their hard money to gain control over a tax-exempt group's soft money. Even if we accepted that rationale, it would at most justify a dollar limit, not a flat ban. Moreover, any legitimate concerns over capture are diminished by the fact that the restrictions set forth in §§323(a) and (b) apply not only to party committees, but to entities under their control. See 2 U.S.C.A. §441i(a)(2) (extending prohibitions on national party committees to "any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee" (emphasis added)); §441i(b)(1) (same for state and local party committees). </s> These observations do not, however, require us to sustain plaintiffs' facial challenge to §323(d)'s donation restriction. "When the validity of an act of the Congress is drawn in question, and ... a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62 (1932); see also Boos v. Barry, 485 U.S. 312, 331 (1988); New York v. Ferber, 458 U.S. 747, 769, n. 24 (1982). Given our obligation to avoid constitutional problems, we narrowly construe §323(d)'s ban to apply only to donations of funds not raised in compliance with FECA. This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole. Though there is little legislative history regarding BCRA generally, and almost nothing on §323(d) specifically, the abuses identified in the 1998 Senate report regarding campaign finance practices involve the use of nonprofit organizations as conduits for large soft-money donations. See, e.g., 3 1998 Senate Report 4565 ("The evidence indicates that the soft-money loophole is fueling many of the campaign abuses investigated by the Committee.... Soft money also supplied the funds parties used to make contributions to tax-exempt groups, which in turn used the funds to pay for election-related activities"); id., at 4568-4569 (describing as an "egregious exampl[e]" of misuse a $4.6 million donation of nonfederal funds by the RNC to Americans for Tax Reform, which the organization spent on "direct mail and phone bank operations to counter anti-Republican advertising"). We have found no evidence that Congress was concerned about, much less that it intended to prohibit, donations of money already fully regulated by FECA. Given Title I's exclusive focus on abuses related to soft money, we would expect that if Congress meant §323(d)'s restriction to have this dramatic and constitutionally questionable effect, it would say so explicitly. Because there is nothing that compels us to conclude that Congress intended "donations" to include transfers of federal money, and because of the constitutional infirmities such an interpretation would raise, we decline to read §323(d) in that way. Thus, political parties remain free to make or direct donations of money to any tax-exempt organization that has otherwise been raised in compliance with FECA. New FECA §323(e)'s Restrictions on Federal Candidates and Officeholders </s> New FECA §323(e) regulates the raising and soliciting of soft money by federal candidates and officeholders. 2 U.S.C.A. §441i(e) (Supp. 2003). It prohibits federal candidates and officeholders from "solicit[ing], receiv[ing], direct[ing], transfer[ing], or spend[ing]" any soft money in connection with federal elections. §441i(e)(1)(A). It also limits the ability of federal candidates and officeholders to solicit, receive, direct, transfer, or spend soft money in connection with state and local elections. §441i(e)(1)(B).70 Section 323(e)'s general prohibition on solicitations admits of a number of exceptions. For instance, federal candidates and officeholders are permitted to "attend, speak, or be a featured guest" at a state or local party fundraising event. 2 U.S.C.A. §441i(e)(3). Section 323(e) specifically provides that federal candidates and officeholders may make solicitations of soft money to §501(c) organizations whose primary purpose is not to engage in "Federal election activit[ies]" as long as the solicitation does not specify how the funds will be spent, 2 U.S.C.A. §441i(e)(4)(A); to §501(c) organizations whose primary purpose is to engage in "Federal election activit[ies]" as long as the solicitations are limited to individuals and the amount solicited does not exceed $20,000 per year per individual, 2 U.S.C.A. §441i(e)(4)(B); and to §501(c) organizations for the express purpose of carrying out such activities, again so long as the amount solicited does not exceed $20,000 per year per individual, 2 U.S.C.A. §441(e)(4)(B). </s> No party seriously questions the constitutionality of §323(e)'s general ban on donations of soft money made directly to federal candidates and officeholders, their agents, or entities established or controlled by them. Even on the narrowest reading of Buckley, a regulation restricting donations to a federal candidate, regardless of the ends to which those funds are ultimately put, qualifies as a contribution limit subject to less rigorous scrutiny. Such donations have only marginal speech and associational value, but at the same time pose a substantial threat of corruption. By severing the most direct link between the soft-money donor and the federal candidate, §323(e)'s ban on donations of soft money is closely drawn to prevent the corruption or the appearance of corruption of federal candidates and officeholders. </s> Section 323(e)'s restrictions on solicitations are justified as valid anticircumvention measures. Large soft-money donations at a candidate's or officeholder's behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself. Without some restriction on solicitations, federal candidates and officeholders could easily avoid FECA's contribution limits by soliciting funds from large donors and restricted sources to like-minded organizations engaging in federal election activities. As the record demonstrates, even before the passage of BCRA, federal candidates and officeholders had already begun soliciting donations to state and local parties, as well as tax-exempt organizations, in order to help their own, as well as their party's, electoral cause. See Colorado II, 533 U.S., at 458 (quoting fundraising letter from a Congressman explaining to contributor that "'you are at the limit of what you can directly contribute to my campaign,' but 'you can further help my campaign by assisting the Colorado Republican Party'"); 251 F.Supp. 2d, at 479-480 (Kollar-Kotelly, J.) (surveying evidence of federal officeholders' soliciting funds to state and local parties); id., at 848 (Leon, J.) (same); id., at 518 (Kollar-Kotelly, J.) (surveying evidence of federal officeholders' soliciting funds for nonprofits for electioneering purposes); id., at 849 (Leon, J.) (same). The incentives to do so, at least with respect to solicitations to tax-exempt organizations, will only increase with Title I's restrictions on the raising and spending of soft money by national, state, and local parties. </s> Section 323(e) addresses these concerns while accommodating the individual speech and associational rights of federal candidates and officeholders. Rather than place an outright ban on solicitations to tax-exempt organizations, §323(e)(4) permits limited solicitations of soft money. 2 U.S.C.A. §441i(e)(4). This allowance accommodates individuals who have long served as active members of nonprofit organizations in both their official and individual capacities. Similarly, §§323(e)(1)(B) and 323(e)(3) preserve the traditional fundraising role of federal officeholders by providing limited opportunities for federal candidates and officeholders to associate with their state and local colleagues through joint fundraising activities. 2 U.S.C.A. §§441i(e)(1)(B), 441i(e)(3). Given these many exceptions, as well as the substantial threat of corruption or its appearance posed by donations to or at the behest of federal candidates and officeholders, §323(e) is clearly constitutional. We accordingly uphold §323(e) against plaintiffs' First Amendment challenge. New FECA §323(f)'s Restrictions on State Candidates and Officeholders </s> The final provision of Title I is new FECA §323(f). 2 U.S.C.A. §441i(f) (Supp. 2003). Section 323(f) generally prohibits candidates for state or local office, or state or local officeholders, from spending soft money to fund "public communications" as defined in §301(20)(A)(iii)--i.e., a communication that "refers to a clearly identified candidate for Federal office ... and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office." 2 U.S.C.A. §441i(f)(1); §431(20)(A)(iii). Exempted from this restriction are communications made in connection with an election for state or local office which refer only to the state or local candidate or officeholder making the expenditure or to any other candidate for the same state or local office. §441i(f)(2). Section 323(f) places no cap on the amount of money that state or local candidates can spend on any activity. Rather, like §§323(a) and 323(b), it limits only the source and amount of contributions that state and local candidates can draw on to fund expenditures that directly impact federal elections. And, by regulating only contributions used to fund "public communications," §323(f) focuses narrowly on those soft-money donations with the greatest potential to corrupt or give rise to the appearance of corruption of federal candidates and officeholders. </s> Plaintiffs advance two principal arguments against §323(f). We have already rejected the first argument, that the definition of "public communications" in new FECA §301(20)(A)(iii) is unconstitutionally vague and overbroad. See supra, 62, n.64. We add only that, plaintiffs' and Justice Kennedy's contrary reading notwithstanding, post, at 34, this provision does not prohibit a state or local candidate from advertising that he has received a federal officeholder's endorsement.71 </s> The second argument, that soft-money contributions to state and local candidates for "public communications" do not corrupt or appear to corrupt federal candidates, ignores both the record in this litigation and Congress' strong interest in preventing circumvention of otherwise valid contribution limits. The proliferation of sham issue ads has driven the soft-money explosion. Parties have sought out every possible way to fund and produce these ads with soft money: They have labored to bring them under the FEC's allocation regime; they have raised and transferred soft money from national to state party committees to take advantage of favorable allocation ratios; and they have transferred and solicited funds to tax-exempt organizations for production of such ads. We will not upset Congress' eminently reasonable prediction that, with these other avenues no longer available, state and local candidates and officeholders will become the next conduits for the soft-money funding of sham issue advertising. We therefore uphold §323(f) against plaintiffs' First Amendment challenge.72 B </s> Several plaintiffs contend that Title I exceeds Congress' Election Clause authority to "make or alter" rules governing federal elections, U.S. Const., Art. I, §4, and, by impairing the authority of the States to regulate their own elections, violates constitutional principles of federalism. In examining congressional enactments for infirmity under the Tenth Amendment, this Court has focused its attention on laws that commandeer the States and state officials in carrying out federal regulatory schemes. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). By contrast, Title I of BCRA only regulates the conduct of private parties. It imposes no requirements whatsoever upon States or state officials, and, because it does not expressly pre-empt state legislation, it leaves the States free to enforce their own restrictions on the financing of state electoral campaigns. It is true that Title I, as amended, prohibits some fundraising tactics that would otherwise be permitted under the laws of various States, and that it may therefore have an indirect effect on the financing of state electoral campaigns. But these indirect effects do not render BCRA unconstitutional. It is not uncommon for federal law to prohibit private conduct that is legal in some States. See, e.g., United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001). Indeed, such conflict is inevitable in areas of law that involve both state and federal concerns. It is not in and of itself a marker of constitutional infirmity. See Ex parte Siebold, 100 U.S. 371, 392 (1879). Of course, in maintaining the federal system envisioned by the Founders, this Court has done more than just prevent Congress from commandeering the States. We have also policed the absolute boundaries of congressional power under Article I. See United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). But plaintiffs offer no reason to believe that Congress has overstepped its Elections Clause power in enacting BCRA. Congress has a fully legitimate interest in maintaining the integrity of federal officeholders and preventing corruption of federal electoral processes through the means it has chosen. Indeed, our above analysis turns on our finding that those interests are sufficient to satisfy First Amendment scrutiny. Given that finding, we cannot conclude that those interests are insufficient to ground Congress' exercise of its Elections Clause power. See Morrison, supra, at 607 (respect owed to coordinate branches "demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds"). C </s> Finally, plaintiffs argue that Title I violates the equal protection component of the Due Process Clause of the Fifth Amendment because it discriminates against political parties in favor of special interest groups such as the National Rifle Association (NRA), American Civil Liberties Union (ACLU), and Sierra Club. As explained earlier, BCRA imposes numerous restrictions on the fundraising abilities of political parties, of which the soft-money ban is only the most prominent. Interest groups, however, remain free to raise soft money to fund voter registration, GOTV activities, mailings, and broadcast advertising (other than electioneering communications). We conclude that this disparate treatment does not offend the Constitution. As an initial matter, we note that BCRA actually favors political parties in many ways. Most obviously, party committees are entitled to receive individual contributions that substantially exceed FECA's limits on contributions to nonparty political committees; individuals can give $25,000 to political party committees whereas they can give a maximum of $5,000 to nonparty political committees. In addition, party committees are entitled in effect to contribute to candidates by making coordinated expenditures, and those expenditures may greatly exceed the contribution limits that apply to other donors. See 2 U.S.C.A. §441a(d) (Supp. 2003). </s> More importantly, however, Congress is fully entitled to consider the real-world differences between political parties and interest groups when crafting a system of campaign finance regulation. See National Right to Work, 459 U.S., at 210. Interest groups do not select slates of candidates for elections. Interest groups do not determine who will serve on legislative committees, elect congressional leadership, or organize legislative caucuses. Political parties have influence and power in the legislature that vastly exceeds that of any interest group. As a result, it is hardly surprising that party affiliation is the primary way by which voters identify candidates, or that parties in turn have special access to and relationships with federal officeholders. Congress' efforts at campaign finance regulation may account for these salient differences. Taken seriously, appellants' equal protection arguments would call into question not just Title I of BCRA, but much of the pre-existing structure of FECA as well. We therefore reject those arguments. </s> Accordingly, we affirm the judgment of the District Court insofar as it upheld §§323(e) and 323(f). We reverse the judgment of the District Court insofar as it invalidated §§323(a), 323(b), and 323(d). IV </s> Title II of BCRA, entitled "Noncandidate Campaign Expenditures," is divided into two subtitles: "Electioneering Communications" and "Independent and Coordinated Expenditures." We consider each challenged section of these subtitles in turn. BCRA §201's Definition of "Electioneering Communication" </s> The first section of Title II, §201, comprehensively amends FECA §304, which requires political committees to file detailed periodic financial reports with the FEC. The amendment coins a new term, "electioneering communication," to replace the narrowing construction of FECA's disclosure provisions adopted by this Court in Buckley. As discussed further below, that construction limited the coverage of FECA's disclosure requirement to communications expressly advocating the election or defeat of particular candidates. By contrast, the term "electioneering communication" is not so limited, but is defined to encompass any "broadcast, cable, or satellite communication" that "(I) refers to a clearly identified candidate for Federal office; </s> "(II) is made within-- </s> "(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or </s> "(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and </s> "(III) in the case of a communication which refers to a candidate other than President or Vice President, is targeted to the relevant electorate." 2 U.S.C.A. §434(f)(3)(A)(i) (Supp. 2003).73 </s> New FECA §304(f)(3)(C) further provides that a communication is "'targeted to the relevant electorate'" if it "can be received by 50,000 or more persons" in the district or State the candidate seeks to represent. 2 U.S.C.A. §434(f)(3)(C). </s> In addition to setting forth this definition, BCRA's amendments to FECA §304 specify significant disclosure requirements for persons who fund electioneering communications. BCRA's use of this new term is not, however, limited to the disclosure context: A later section of the Act (BCRA §203, which amends FECA §316(b)(2)) restricts corporations' and labor unions' funding of electioneering communications. Plaintiffs challenge the constitutionality of the new term as it applies in both the disclosure and the expenditure contexts. </s> The major premise of plaintiffs' challenge to BCRA's use of the term "electioneering communication" is that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech. Thus, plaintiffs maintain, Congress cannot constitutionally require disclosure of, or regulate expenditures for, "electioneering communications" without making an exception for those "communications" that do not meet Buckley's definition of express advocacy. </s> That position misapprehends our prior decisions, for the express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law. In Buckley we began by examining then-18 U.S.C. §608(e)(1) (1970 ed., Supp. IV), which restricted expenditures "'relative to a clearly identified candidate,'" and we found that the phrase "'relative to'" was impermissibly vague. 424 U.S., at 40-42. We concluded that the vagueness deficiencies could "be avoided only by reading §608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate."74 Id., at 43. We provided examples of words of express advocacy, such as "'vote for,' 'elect,' 'support,' ... 'defeat,' [and] 'reject,'" id., at 44, n. 52, and those examples eventually gave rise to what is now known as the "magic words" requirement. </s> We then considered FECA's disclosure provisions, including 2 U.S.C. §431(f) (1970 ed., Supp. IV), which defined "'expenditur[e]'" to include the use of money or other assets "'for the purpose of ... influencing'" a federal election. Buckley, 424 U.S., at 77. Finding that the "ambiguity of this phrase" posed "constitutional problems," ibid., we noted our "obligation to construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness," id., at 77-78 (citations omitted). "To insure that the reach" of the disclosure requirement was "not impermissibly broad, we construe[d] 'expenditure' for purposes of that section in the same way we construed the terms of §608(e)--to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id., at 80 (footnote omitted). </s> Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command.75 In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. Nor did we suggest as much in MCFL, 479 U.S. 238 (1986), in which we addressed the scope of another FECA expenditure limitation and confirmed the understanding that Buckley's express advocacy category was a product of statutory construction.76 </s> In short, the concept of express advocacy and the concomitant class of magic words were born of an effort to avoid constitutional infirmities. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979) (citing Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804)). We have long "rigidly adhered" to the tenet "'never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,'" United States v. Raines, 362 U.S. 17, 21 (1960) (citation omitted), for "[t]he nature of judicial review constrains us to consider the case that is actually before us," James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 547 (1991) (Blackmun, J., dissenting). Consistent with that principle, our decisions in Buckley and MCFL were specific to the statutory language before us; they in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech. </s> Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. See Buckley, supra, at 45. Indeed, the unmistakable lesson from the record in this litigation, as all three judges on the District Court agreed, is that Buckley's magic-words requirement is functionally meaningless. 251 F.Supp. 2d, at 303-304 (Henderson, J.); id., at 534 (Kollar-Kotelly, J.); id., at 875-879 (Leon, J.). Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted.77 And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.78 Buckley's express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found in the existing system. </s> Finally we observe that new FECA §304(f)(3)'s definition of "electioneering communication" raises none of the vagueness concerns that drove our analysis in Buckley. The term "electioneering communication" applies only (1) to a broadcast (2) clearly identifying a candidate for federal office, (3) aired within a specific time period, and (4) targeted to an identified audience of at least 50,000 viewers or listeners. These components are both easily understood and objectively determinable. See Grayned v. City of Rockford, 408 U.S. 104, 108-114 (1972). Thus, the constitutional objection that persuaded the Court in Buckley to limit FECA's reach to express advocacy is simply inapposite here. BCRA §201's Disclosure Requirements </s> Having rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy, we turn to plaintiffs' other concerns about the use of the term "electioneering communication" in amended FECA §304's disclosure provisions. Under those provisions, whenever any person makes disbursements totaling more than $10,000 during any calendar year for the direct costs of producing and airing electioneering communications, he must file a statement with the FEC identifying the pertinent elections and all persons sharing the costs of the disbursements. 2 U.S.C.A. §§434(f)(2)(A), (B), and (D) (Supp. 2003). If the disbursements are made from a corporation's or labor union's segregated account,79 or by a single individual who has collected contributions from others, the statement must identify all persons who contributed $1,000 or more to the account or the individual during the calendar year. §§434(f)(2)(E), (F). The statement must be filed within 24 hours of each "disclosure date"--a term defined to include the first date and all subsequent dates on which a person's aggregate undisclosed expenses for electioneering communications exceed $10,000 for that calendar year. §§434(f)(1), (2) and (4). Another subsection further provides that the execution of a contract to make a disbursement is itself treated as a disbursement for purposes of FECA's disclosure requirements. §434(f)(5). In addition to the failed argument that BCRA's amendments to FECA §304 improperly extend to both express and issue advocacy, plaintiffs challenge amended FECA §304's disclosure requirements as unnecessarily (1) requiring disclosure of the names of persons who contributed $1,000 or more to the individual or group that paid for a communication, and (2) mandating disclosure of executory contracts for communications that have not yet aired. The District Court rejected the former submission but accepted the latter, finding invalid new FECA §304(f)(5), which governs executory contracts. Relying on BCRA's severability provision,80 the court held that invalidation of the executory contracts subsection did not render the balance of BCRA's amendments to FECA §304 unconstitutional. 251 F. Supp. 2d, at 242 (per curiam). </s> We agree with the District Court that the important state interests that prompted the Buckley Court to uphold FECA's disclosure requirements--providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions--apply in full to BCRA.81 Accordingly, Buckley amply supports application of FECA §304's disclosure requirements to the entire range of "electioneering communications." As the authors of the District Court's per curiam opinion concluded after reviewing evidence concerning the use of purported "issue ads" to influence federal elections: "The factual record demonstrates that the abuse of the present law not only permits corporations and labor unions to fund broadcast advertisements designed to influence federal elections, but permits them to do so while concealing their identities from the public. BCRA's disclosure provisions require these organizations to reveal their identities so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain elections. Plaintiffs' disdain for BCRA's disclosure pro-visions is nothing short of surprising. Plaintiffs chal-lenge BCRA's restrictions on electioneering communications on the premise that they should be permitted to spend corporate and labor union general treasury funds in the sixty days before the federal elections on broadcast advertisements, which refer to federal candidates, because speech needs to be 'uninhibited, robust, and wide-open.' McConnell Br. at 44 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Curiously, Plaintiffs want to preserve the ability to run these advertisements while hiding behind dubious and misleading names like: 'The Coalition-Americans Working for Real Change' (funded by business organizations opposed to organized labor), 'Citizens for Better Medicare' (funded by the pharmaceutical industry), 'Republicans for Clean Air' (funded by brothers Charles and Sam Wyly). Findings ¶ ;¶ ;44, 51, 52. Given these tactics, Plaintiffs never satisfactorily answer the question of how 'uninhibited, robust, and wide-open' speech can occur when organizations hide themselves from the scrutiny of the voting public. McConnell Br. at 44. Plaintiffs' argument for striking down BCRA's disclosure provisions does not reinforce the precious First Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace." 251 F.Supp. 2d, at 237. </s> The District Court was also correct that Buckley forecloses a facial attack on the new provision in §304 that requires disclosure of the names of persons contributing $1,000 or more to segregated funds or individuals that spend more than $10,000 in a calendar year on electioneering communications. Like our earlier decision in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958),82 Buckley recognized that compelled disclosures may impose an unconstitutional burden on the freedom to associate in support of a particular cause. Nevertheless, Buckley rejected the contention that FECA's disclosure requirements could not constitutionally be applied to minor parties and independent candidates because the Government's interest in obtaining information from such parties was minimal and the danger of infringing their rights substantial. In Buckley, unlike NAACP, we found no evidence that any party had been exposed to economic reprisals or physical threats as a result of the compelled disclosures. Buckley, 424 U.S., at 69-70. We acknowledged that such a case might arise in the future, however, and addressed the standard of proof that would then apply: "We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties." Id., at 74. </s> A few years later we used that standard to resolve a minor party's challenge to the constitutionality of the State of Ohio's disclosure requirements. We held that the First Amendment prohibits States from compelling disclosures that would subject identified persons to "threats, harassment, and reprisals," and that the District Court's findings had established a "reasonable probability" of such a result.83 Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 100 (1982). </s> In this litigation the District Court applied Buckley's evidentiary standard and found--consistent with our conclusion in Buckley, and in contrast to that in Brown--that the evidence did not establish the requisite "reasonable probability" of harm to any plaintiff group or its members. The District Court noted that some parties had expressed such concerns, but it found a "lack of specific evidence about the basis for these concerns." 251 F.Supp. 2d, at 247 (per curiam). We agree, but we note that, like our refusal to recognize a blanket exception for minor parties in Buckley, our rejection of plaintiffs' facial challenge to the requirement to disclose individual donors does not foreclose possible future challenges to particular applications of that requirement. </s> We also are unpersuaded by plaintiffs' challenge to new FECA §304(f)(5), which requires disclosure of executory contracts for electioneering communications: "Contracts to disburse </s> "For purposes of this subsection, a person shall be treated as having made a disbursement if the person has executed a contract to make the disbursement." 2 U.S.C.A. §434(f)(5) (Supp. 2003). </s> In our view, this provision serves an important purpose the District Court did not advance. BCRA's amendments to FECA §304 mandate disclosure only if and when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering communications. Plaintiffs do not take issue with the use of a dollar amount, rather than the number or dates of the ads, to identify the time when a person paying for electioneering communications must make disclosures to the FEC. Nor do they question the need to make the contents of parties' disclosure statements available to curious voters in advance of elections. Given the relatively short time frames in which electioneering communications are made, the interest in assuring that disclosures are made promptly and in time to provide relevant information to voters is unquestionably significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole if advertisers were not required to disclose executory contracts. In the absence of that requirement, political supporters could avoid preelection disclosures concerning ads slated to run during the final week of a campaign simply by making a preelection downpayment of less than $10,000, with the balance payable after the election. Indeed, if the advertiser waited to pay that balance until the next calendar year then, as long as the balance did not itself exceed $10,000, the advertiser might avoid the disclosure requirements completely. </s> The record contains little evidence identifying any harm that might flow from the enforcement of §304(f)(5)'s "advance" disclosure requirement. The District Court speculated that disclosing information about contracts "that have not been performed, and may never be performed, may lead to confusion and an unclear record upon which the public will evaluate the forces operating in the political marketplace." 251 F.Supp. 2d, at 241 (per curiam). Without evidence relating to the frequency of nonperformance of executed contracts, such speculation cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. It is no doubt true that §304(f)(5) will sometimes require the filing of disclosure statements in advance of the actual broadcast of an advertisement.84 But the same would be true in the absence of an advance disclosure requirement, if a television station insisted on advance payment for all of the ads covered by a contract. Thus, the possibility that amended §304 may sometimes require disclosures prior to the airing of an ad is as much a function of the use of disbursements (rather than the date of an ad) to trigger the disclosure requirement as it is a function of §304(f)(5)'s treatment of executory contracts. </s> As the District Court observed, amended FECA §304's disclosure requirements are constitutional because they "'d[o] not prevent anyone from speaking.'" Ibid. (quoting Brief for FEC in Opposition in No. 02-582 etal. (DC), p.112). Moreover, the required disclosures "'would not have to reveal the specific content of the advertisements, yet they would perform an important function in informing the public about various candidates' supporters before election day.'" 251 F.Supp. 2d, at 241 (quoting Brief for FEC in Opposition, supra, at 112) (emphasis in original). Accordingly, we affirm the judgment of the District Court insofar as it upheld the disclosure requirements in amended FECA §304 and rejected the facial attack on the provisions relating to donors of $1,000 or more, and reverse that judgment insofar as it invalidated FECA §304(f)(5). BCRA §202's Treatment of "Coordinated Communications" as Contributions </s> Section 202 of BCRA amends FECA §315(a)(7)(C) to provide that disbursements for "electioneering communication[s]" that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party. 2 U.S.C.A. §441a(a)(7)(C) (Supp. 2003).85 The amendment clarifies the scope of the preceding subsection, §315(a)(7)(B), which states more generally that "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of" a candidate or party will constitute contributions. 2 U.S.C. §§441a(a)(7)(B)(i)-(ii). In Buckley we construed the statutory term "expenditure" to reach only spending for express advocacy. 424 U.S., at 40-43, and n. 52 (addressing 18 U.S.C. §608(e)(1) (1970 ed., Supp. IV), which placed a $1,000 cap on expenditures "'relative to a clearly identified candidate'"). BCRA §202 pre-empts a possible claim that §315(a)(7)(B) is similarly limited, such that coordinated expenditures for communications that avoid express advocacy cannot be counted as contributions. As we explained above, see supra, at 83-86, Buckley's narrow interpretation of the term "expenditure" was not a constitutional limitation on Congress' power to regulate federal elections. Accordingly, there is no reason why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats all other coordinated expenditures. We affirm the judgment of the District Court insofar as it held that plaintiffs had advanced "no basis for finding Section 202 unconstitutional." 251 F.Supp. 2d, at 250. BCRA §203's Prohibition of Corporate and Labor Disbursements for Electioneering Communications </s> Since our decision in Buckley, Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law. The ability to form and administer separate segregated funds authorized by FECA §316, 2 U.S.C.A. §441b (main ed. and Supp. 2003), has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court's unanimous view,86 and it is not challenged in this litigation. Section 203 of BCRA amends FECA §316(b)(2) to extend this rule, which previously applied only to express advocacy, to all "electioneering communications" covered by the definition of that term in amended FECA §304(f)(3), discussed above. 2 U.S.C.A. §441b(b)(2) (Supp. 2003).87 Thus, under BCRA, corporations and unions may not use their general treasury funds to finance electioneering communications, but they remain free to organize and administer segregated funds, or PACs, for that purpose. Because corporations can still fund electioneering communications with PAC money, it is "simply wrong" to view the provision as a "complete ban" on expression rather than a regulation. Beaumont, 539 U.S., at ___, ___ (slip op., at 15). As we explained in Beaumont: "The PAC option allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members, and it lets the government regulate campaign activity through registration and disclosure, see [2 U.S.C.] §§432-434, without jeopardizing the associational rights of advocacy organizations' members." Id., at ___ (slip op., at 16) (citation omitted). </s> See also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658 (1990). </s> Rather than arguing that the prohibition on the use of general treasury funds is a complete ban that operates as a prior restraint, plaintiffs instead challenge the expanded regulation on the grounds that it is both overbroad and underinclusive. Our consideration of plaintiffs' challenge is informed by our earlier conclusion that the distinction between express advocacy and so-called issue advocacy is not constitutionally compelled. In that light, we must examine the degree to which BCRA burdens First Amendment expression and evaluate whether a compelling governmental interest justifies that burden. Id., at 657. The latter question--whether the state interest is compelling--is easily answered by our prior decisions regarding campaign finance regulation, which "represent respect for the 'legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.'" Beaumont, supra, at ___ (slip op., at 8) (quoting National Right to Work, 459 U.S., at 209-210). We have repeatedly sustained legislation aimed at "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin, supra, at 660; see Beaumont, supra, at ___ (slip op., at 7-8); National Right to Work, supra, at 209-210. Moreover, recent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against "'circumvention of [valid] contribution limits.'" Beaumont, supra, at ___ (slip op., at 7) (quoting Colorado II, 533 U.S., at 456, and n.18.) </s> In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office. Nor do they contend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy. After all, "the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office," Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), and "[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation." Buckley, 424 U.S., at 48. Rather, plaintiffs argue that the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications. </s> This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters' decisions and have that effect. The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief preelection time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. See 251 F.Supp. 2d, at 307-312 (Henderson, J.); id., at 583-587 (Kollar-Kotelly, J.); id., at 796-798 (Leon, J.). Nevertheless, the vast majority of ads clearly had such a purpose. Annenberg Report 13-14; App. 1330-1348 (Krasno & Sorauf Expert Report); 251 F.Supp. 2d, at 573-578 (Kollar-Kotelly, J.); id., at 826-827 (Leon, J.). Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.88 </s> We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that amended FECA §316(b)(2) is overbroad. See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Even if we assumed that BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not "justify prohibiting all enforcement" of the law unless its application to protected speech is substantial, "not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications." Virginia v. Hicks, 539 U.S. ___, ___ (2003) (slip op., at 5-6). Far from establishing that BCRA's application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion. </s> Plaintiffs also argue that FECA §316(b)(2)'s segregated-fund requirement for electioneering communications is underinclusive because it does not apply to advertising in the print media or on the Internet. 2 U.S.C.A. §434(f)(3)(A) (Supp. 2003). The records developed in this litigation and by the Senate Committee adequately explain the reasons for this legislative choice. Congress found that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the periods immediately preceding federal elections, and that remedial legislation was needed to stanch that flow of money. 251 F.Supp. 2d, at 569-573 (Kollar-Kotelly, J.); id., at 799 (Leon, J.); 3 1998 Senate Report 4465, 4474-4481; 5 id., at 7521-7525. As we held in Buckley, "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." 424 U.S., at 105 (internal quotation marks and citations omitted). One might just as well argue that the electioneering communication definition is underinclusive because it leaves advertising 61 days in advance of an election entirely unregulated. The record amply justifies Congress' line drawing. </s> In addition to arguing that §316(b)(2)'s segregated-fund requirement is underinclusive, some plaintiffs contend that it unconstitutionally discriminates in favor of media companies. FECA §304(f)(3)(B)(i) excludes from the definition of electioneering communications any "communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate." 2 U.S.C.A. §434(f)(3)(B)(i) (Supp. 2003). Plaintiffs argue this provision gives free rein to media companies to engage in speech without resort to PAC money. Section 304(f)(3)(B)(i)'s effect, however, is much narrower than plaintiffs suggest. The provision excepts news items and commentary only; it does not afford carte blanche to media companies generally to ignore FECA's provisions. The statute's narrow exception is wholly consistent with First Amendment principles. "A valid distinction ... exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public." Austin, 494 U.S., at 668. Numerous federal statutes have drawn this distinction to ensure that the law "does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events." Ibid. (citations omitted); see, e.g., 2 U.S.C. §431(9)(B)(i) (exempting news stories, commentaries, and editorials from FECA's definition of "expenditure"); 15 U.S.C. §§1801-1804 (providing a limited antitrust exemption for newspapers); 47 U.S.C. §315(a) (excepting newscasts, news interviews, and news documentaries from the requirement that broadcasters provide equal time to candidates for public office).89 </s> We affirm the District Court's judgment to the extent that it upheld the constitutionality of FECA §316(b)(2); to the extent that it invalidated any part of §316(b)(2), we reverse the judgment. BCRA §204's Application to Nonprofit Corporations </s> Section 204 of BCRA, which adds FECA §316(c)(6), applies the prohibition on the use of general treasury funds to pay for electioneering communications to not-for-profit corporations.90 Prior to the enactment of BCRA, FECA required such corporations, like business corporations, to pay for their express advocacy from segregated funds rather than from their general treasuries. Our recent decision in Federal Election Comm'n v. Beaumont, 539 U.S. ___ (2003), confirmed that the requirement was valid except insofar as it applied to a sub-category of corporations described as "MCFL organizations," as defined by our decision in MCFL, 479 U.S. 238 (1986).91 The constitutional objection to applying FECA's segregated-fund requirement to so-called MCFL organizations necessarily applies with equal force to FECA §316(c)(6). Our decision in MCFL related to a carefully defined category of entities. We identified three features of the organization at issue in that case that were central to our holding: "First, it was formed for the express purpose of promoting political ideas, and cannot engage in business activities. If political fundraising events are expressly denominated as requests for contributions that will be used for political purposes, including direct expenditures, these events cannot be considered business activities. This ensures that political resources reflect political support. Second, it has no shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity. Third, MCFL was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. This prevents such corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace." Id., at 264. </s> That FECA §316(c)(6) does not, on its face, exempt MCFL organizations from its prohibition is not a sufficient reason to invalidate the entire section. If a reasonable limiting construction "has been or could be placed on the challenged statute" to avoid constitutional concerns, we should embrace it. Broadrick, 487 U.S. 879, 896 (1988); Cannon v. University of Chicago, 441 U.S. 677, 696-697 (1979). Indeed, the Government itself concedes that §316(c)(6) does not apply to MCFL organizations. As so construed, the provision is plainly valid. See Austin, 494 U.S., at 661-665 (holding that a segregated-fund requirement that did not explicitly carve out an MCFL exception could apply to a nonprofit corporation that did not qualify for MCFL status). </s> Accordingly, the judgment of the District Court upholding §316(c)(6) as so limited is affirmed. BCRA §212's Reporting Requirement for $1,000 Expenditures </s> Section 212 of BCRA amends FECA §304 to add a new disclosure requirement, FECA §304(g), which applies to persons making independent expenditures of $1,000 or more during the 20-day period immediately preceding an election. Like FECA §304(f)(5), discussed above, new §304(g) treats the execution of a contract to make a disbursement as the functional equivalent of a payment for the goods or services covered by the contract.92 In challenging this provision, plaintiffs renew the argument we rejected in the context of §304(f)(5): that they have a constitutional right to postpone any disclosure until after the performance of the services purchased by their expenditure. The District Court held that the challenge to FECA §304(g) was not ripe because the FEC has issued regulations "provid[ing] Plaintiffs with the exact remedy they seek"--that is, specifically declining to "require disclosure of independent express advocacy expenditures prior to their 'publi[c] disseminat[ion].'" 251 F.Supp. 2d, at 251, and n.85 (per curiam) (citing 68 Fed. Reg. 404, 452 (2003) (codified at 11 CFR §§109.10(c), (d) (2003))). We are not certain that a regulation purporting to limit the range of circumstances in which a speech-burdening statute will be enforced can render nonjusticiable a facial challenge to the (concededly broader) underlying statute. Nevertheless, we need not separately address the constitutionality of §304(g), for our ruling as to BCRA §201, see supra, at 82-89, renders the issue essentially moot. BCRA §213's Requirement that Political Parties Choose Between Coordinated and Independent Expenditures After Nominating a Candidate </s> Section 213 of BCRA amends FECA §315(d)(4) to impose certain limits on party spending during the postnomination, preelection period.93 At first blush, the text of §315(d)(4)(A) appears to require political parties to make a straightforward choice between using limited coordinated expenditures or unlimited independent expenditures to support their nominees. All three judges on the District Court concluded that the provision placed an unconstitutional burden on the parties' right to make unlimited independent expenditures. 251 F.Supp. 2d, at 388 (Henderson, J.); id., at 650-651 (Kollar-Kotelly, J.), id., at 805-808 (Leon, J.). In the end, we agree with that conclusion but believe it important to identify certain complexities in the text of §315(d)(4) that affect our analysis of the issue. Section 315 of FECA sets forth various limitations on contributions and expenditures by individuals, political parties, and other groups. Section 315(a)(2) restricts "contributions" by parties to $5,000 per candidate. 2 U.S.C.A. §441a(a)(2). Because §315(a)(7) treats expenditures that are coordinated with a candidate as contributions to that candidate, 2 U.S.C.A. §441(a)(7) (Supp. 2003), the $5,000 limit also operates as a cap on parties' coordinated expenditures. Section 315(d), however, provides that, "[n]otwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions," political parties may make "expenditures" in support of their candidates under a formula keyed to the voting-age population of the candidate's home State or, in the case of a candidate for President, the voting-age population of the United States. 2 U.S.C.A. §§441a(d)(1)-(3) (main ed. and Supp. 2003).94 In the year 2000, that formula permitted expenditures ranging from $33,780 to $67,650 for House of Representatives races, and from $67,650 to $1.6 million for Senate races. Colorado II, 533 U.S., at 439, n.3. We held in Colorado I that parties have a constitutional right to make unlimited independent expenditures, and we invalidated §315(d) to the extent that it restricted such expenditures. As a result of that decision, §315(d) applies only to coordinated expenditures, replacing the $5,000 cap on contributions set out in §315(a)(2) with the more generous limitations prescribed by §§315(d)(1)-(3). We sustained that limited application in Colorado II, supra. </s> Section 213 of BCRA amends §315(d) by adding a new paragraph (4). New §315(d)(4)(A) provides that, after a party nominates a candidate for federal office, it must choose between two spending options. Under the first option, a party that "makes any independent expenditure (as defined in section [301(17)])" is thereby barred from making "any coordinated expenditure under this subsection." 2 U.S.C.A. §441a(d)(4)(A)(i) (Supp. 2003). The phrase "this subsection" is a reference to subsection (d) of §315. Thus, the consequence of making an independent expenditure is not a complete prohibition of any coordinated expenditure: Although the party cannot take advantage of the increased spending limits under §§315(d)(1)-(3), it still may make up to $5,000 in coordinated expenditures under §315(a)(2). As the difference between $5,000 and $1.6 million demonstrates, however, that is a significant cost to impose on the exercise of a constitutional right. </s> The second option is the converse of the first. It provides that a party that makes any coordinated expenditure "under this subsection" (i.e., one that exceeds the ordinary $5,000 limit) cannot make "any independent expenditure (as defined in section [301(17)]) with respect to the candidate." 2 U.S.C.A. §441a(d)(4)(A)(ii). Section 301(17) defines "'independent expenditure'" to mean a non-coordinated expenditure "expressly advocating the election or defeat of a clearly identified candidate." 2 U.S.C.A. §431(17)(A).95 Therefore, as was true of the first option, the party's choice is not as stark as it initially appears: The consequence of the larger coordinated expenditure is not a complete prohibition of any independent expenditure, but the forfeiture of the right to make independent expenditures for express advocacy. As we explained in our discussion of the provisions relating to electioneering communications, supra, at 83-87, express advocacy represents only a tiny fraction of the political communications made for the purpose of electing or defeating candidates during a campaign. Regardless of which option parties choose, they remain free to make independent expenditures for the vast majority of campaign ads that avoid the use of a few magic words. </s> In sum, the coverage of new FECA §315(d)(4) is much more limited than it initially appears. A party that wishes to spend more than $5,000 in coordination with its nominee is forced to forgo only the narrow category of independent expenditures that make use of magic words. But while the category of burdened speech is relatively small, it plainly is entitled to First Amendment protection. See Buckley, 424 U.S., at 44-45, 48. Under §315(d)(4), a political party's exercise of its constitutionally protected right to engage in "core First Amendment expression," id., at 48, results in the loss of a valuable statutory benefit that has been available to parties for many years. To survive constitutional scrutiny, a provision that has such consequences must be supported by a meaningful governmental interest. </s> The interest in requiring political parties to avoid the use of magic words is not such an interest. We held in Buckley that a $1,000 cap on expenditures that applied only to express advocacy could not be justified as a means of avoiding circumvention of contribution limits or preventing corruption and the appearance of corruption because its restrictions could easily be evaded: "So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views." Id., at 45. The same is true in this litigation. Any claim that a restriction on independent express advocacy serves a strong Government interest is belied by the overwhelming evidence that the line between express advocacy and other types of election-influencing expression is, for Congress' purposes, functionally meaningless. Indeed, Congress enacted the new "electioneering communication[s]" provisions precisely because it recognized that the express advocacy test was woefully inadequate at capturing communications designed to influence candidate elections. In light of that recognition, we are hard pressed to conclude that any meaningful purpose is served by §315(d)(4)'s burden on a party's right to engage independently in express advocacy. </s> The Government argues that §315(d)(4) nevertheless is constitutional because it is not an outright ban (or cap) on independent expenditures, but rather offers parties a voluntary choice between a constitutional right and a statutory benefit. Whatever merit that argument might have in the abstract, it fails to account for new §315(d)(4)(B), which provides: "For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee." 2 U.S.C.A. §441a(d)(4)(B) (Supp. 2003). </s> Given that provision, it simply is not the case that each party committee can make a voluntary and independent choice between exercising its right to engage in independent advocacy and taking advantage of the increased limits on coordinated spending under §§315(d)(1)-(3). Instead, the decision resides solely in the hands of the first mover, such that a local party committee can bind both the state and national parties to its chosen spending option.96 It is one thing to say that Congress may require a party committee to give up its right to make independent expenditures if it believes that it can accomplish more with coordinated expenditures. It is quite another thing, however, to say that the RNC must limit itself to $5,000 in coordinated expenditures in support of its presidential nominee if any state or local committee first makes an independent expenditure for an ad that uses magic words. That odd result undermines any claim that new §315(d)(4) can withstand constitutional scrutiny simply because it is cast as a voluntary choice rather than an outright prohibition on independent expenditures. </s> The portion of the judgment of the District Court invalidating BCRA §213 is affirmed. BCRA §214's Changes in FECA's Provisions Covering Coordinated Expenditures </s> Ever since our decision in Buckley, it has been settled that expenditures by a noncandidate that are "controlled by or coordinated with the candidate and his campaign" may be treated as indirect contributions subject to FECA's source and amount limitations. 424 U.S., at 46. Thus, FECA §315(a)(7)(B)(i) long has provided that "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate." 2 U.S.C.A. §441a(a)(7)(B)(i) (Supp. 2003). Section 214(a) of BCRA creates a new FECA §315(a)(7)(B)(ii) that applies the same rule to expenditures coordinated with "a national, State, or local committee of a political party." 2 U.S.C.A. §441a(a)(7)(B)(ii).97 Sections 214(b) and (c) direct the FEC to repeal its current regulations98 and to promulgate new regulations dealing with "coordinated communications" paid for by persons other than candidates or their parties. Subsection (c) provides that the new "regulations shall not require agreement or formal collaboration to establish coordination." 2 U.S.C.A. §441a(a) note. Plaintiffs do not dispute that Congress may apply the same coordination rules to parties as to candidates. They argue instead that new FECA §315(a)(7)(B)(ii) and its implementing regulations are overbroad and unconstitutionally vague because they permit a finding of coordination even in the absence of an agreement. Plaintiffs point out that political supporters may be subjected to criminal liability if they exceed the contribution limits with expenditures that ultimately are deemed coordinated. Thus, they stress the importance of a clear definition of "coordination" and argue any definition that does not hinge on the presence of an agreement cannot provide the "precise guidance" that the First Amendment demands. Brief for Chamber of Commerce of the United States etal., Appellant in No. 02-1756, p. 48. As plaintiffs readily admit, that argument reaches beyond BCRA, calling into question FECA's pre-existing provisions governing expenditures coordinated with candidates. </s> We are not persuaded that the presence of an agreement marks the dividing line between expenditures that are coordinated--and therefore may be regulated as indirect contributions--and expenditures that truly are independent. We repeatedly have struck down limitations on expenditures "made totally independently of the candidate and his campaign," Buckley, 424 U.S., at 47, on the ground that such limitations "impose far greater restraints on the freedom of speech and association" than do limits on contributions and coordinated expenditures, id., at 44, while "fail[ing] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process," id., at 47-48. See also Colorado I, 518 U.S., at 613-614 (striking down limit on expenditure made by party officials prior to nomination of candidates and without any consultation with potential nominees). We explained in Buckley: "Unlike contributions, ... independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." 424 U.S., at 47. </s> Thus, the rationale for affording special protection to wholly independent expenditures has nothing to do with the absence of an agreement and everything to do with the functional consequences of different types of expenditures. Independent expenditures "are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate's point of view." Colorado II, 533 U.S., at 446. By contrast, expenditures made after a "wink or nod" often will be "as useful to the candidate as cash." Id., at 442, 446. For that reason, Congress has always treated expenditures made "at the request or suggestion of" a candidate as coordinated.99 2 U.S.C.A. §441a(a)(7)(B)(i) (Supp. 2003). A supporter easily could comply with a candidate's request or suggestion without first agreeing to do so, and the resulting expenditure would be "'virtually indistinguishable from [a] simple contributio[n],'" Colorado II, supra, at 444-445. Therefore, we cannot agree with the submission that new FECA §315(a)(7)(B)(ii) is overbroad because it permits a finding of coordination or cooperation notwithstanding the absence of a pre-existing agreement. </s> Nor are we persuaded that the absence of an agreement requirement renders §315(a)(7)(B)(ii) unconstitutionally vague. An agreement has never been required to support a finding of coordination with a candidate under §315(a)(7)(B)(i), which refers to expenditures made "in cooperation, consultation, or concer[t] with, or at the request or suggestion of" a candidate. Congress used precisely the same language in new §315(a)(7)(B)(ii) to address expenditures coordinated with parties. FECA's longstanding definition of coordination "delineates its reach in words of common understanding." Cameron v. Johnson, 390 U.S. 611, 616 (1968). Not surprisingly, therefore, the relevant statutory language has survived without constitutional challenge for almost three decades. Although that fact does not insulate the definition from constitutional scrutiny, it does undermine plaintiffs' claim that the language of §315(a)(7)(B)(ii) is intolerably vague. Plaintiffs do not present any evidence that the definition has chilled political speech, whether between candidates and their supporters or by the supporters to the general public. See Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997) (noting risk that vague statutes may chill protected expression). And, although plaintiffs speculate that the FEC could engage in intrusive and politically motivated investigations into alleged coordination, they do not even attempt to explain why an agreement requirement would solve that problem. Moreover, the only evidence plaintiffs have adduced regarding the enforcement of the coordination provision during its 27-year history concerns three investigations in the late 1990's into groups on different sides of the political aisle. Such meager evidence does not support the claim that §315(a)(7)(B)(ii) will "foster 'arbitrary and discriminatory application.'" Buckley, supra, at 41, n. 48 (quoting Grayned v. City of Rockford, 339 U.S. 382, 412 (1950), and is not unconstitutionally vague. </s> Finally, portions of plaintiffs' challenge to BCRA §214 focus on the regulations the FEC has promulgated under §214(c). 11 CFR §109.21 (2003). As the District Court explained, issues concerning the regulations are not appropriately raised in this facial challenge to BCRA, but must be pursued in a separate proceeding. Thus, we agree with the District Court that plaintiffs' challenge to §§214(b) and (c) is not ripe to the extent that the alleged constitutional infirmities are found in the implementing regulations rather than the statute itself. </s> The portions of the District Court judgment rejecting plaintiffs' challenges to BCRA §214 are affirmed. V </s> Many years ago we observed that "[t]o say that Congress is without power to pass appropriate legislation to safeguard ... an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection." Burroughs v. United States, 290 U.S., at 545. We abide by that conviction in considering Congress' most recent effort to confine the ill effects of aggregated wealth on our political system. We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day. In the main we uphold BCRA's two principal, complementary features: the control of soft money and the regulation of electioneering communications. Accordingly, we affirm in part and reverse in part the District Court's judgment with respect to Titles I and II. It is so ordered. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1674v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIFLE ASSOCIATION, etal., APPELLANTS </s> 02-1675v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> FEDERAL ELECTION COMMISSION, etal., APPELLANTS </s> 02-1676v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> JOHN McCAIN, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1702v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> REPUBLICAN NATIONAL COMMITTEE, etal., APPELLANTS </s> 02-1727v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIGHT TO LIFE COMMITTEE, INC., etal., APPELLANTS </s> 02-1733v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN CIVIL LIBERTIES UNION, APPELLANTS </s> 02-1734v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> VICTORIA JACKSON GRAY ADAMS, etal., APPELLANTS </s> 02-1740v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> RON PAUL, UNITED STATES CONGRESSMAN, etal., APPELLANTS </s> 02-1747v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CALIFORNIA DEMOCRATIC PARTY, etal., APPELLANTS </s> 02-1753v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, etal., APPELLANTS </s> 02-1755v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CHAMBER OF COMMERCE OF THE UNITED STATES, etal., APPELLANTS </s> 02-1756v. </s> FEDERAL ELECTION COMMISSION, etal. on appeals from the united states district court for the district of columbia [December 10, 2003] </s> Chief Justice Rehnquist delivered the opinion of the Court with respect to BCRA Titles III and IV.** </s> This opinion addresses issues involving miscellaneous Title III and IV provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81. For the reasons discussed below, we affirm the judgment of the District Court with respect to these provisions. BCRA §305 </s> BCRA §305 amends the federal Communications Act of 1934 (Communications Act) §315(b), 48 Stat. 1088, as amended, 86 Stat. 4, which requires that, 45 days before a primary or 60 days before a general election, broadcast stations must sell a qualified candidate the "lowest unit charge of the station for the same class and amount of time for the same period," 47 U.S.C. §315(b). Section 305's amendment, in turn, denies a candidate the benefit of that lowest unit charge unless the candidate "provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office," or the candidate, in the manner prescribed in BCRA §305(a)(3), clearly identifies herself at the end of the broadcast and states that she approves of the broadcast. 47 U.S.C.A. §§315(b)(2)(A), (C) (Supp. 2003). The McConnell plaintiffs challenge §305. They argue that Senator McConnell's testimony that he plans to run advertisements critical of his opponents in the future and that he had run them in the past is sufficient to establish standing. We think not. </s> Article III of the Constitution limits the "judicial power" to the resolution of "cases" and "controversies." One element of the "bedrock" case-or-controversy requirement is that plaintiffs must establish that they have standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997). On many occasions, we have reiterated the three requirements that constitute the "'irreducible constitutional minimum'" of standing. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000). First, a plaintiff must demonstrate an "injury in fact," which is "concrete," "distinct and palpable," and "actual or imminent." Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (internal quotation marks and citation omitted). Second, a plaintiff must establish "a causal connection between the injury and the conduct complained of--the injury has to be 'fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] some third party not before the court.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)). Third, a plaintiff must show the "'substantial likelihood' that the requested relief will remedy the alleged injury in fact." Stevens, supra, at 771. </s> As noted above, §305 amended the Communication Act's requirements with respect to the lowest unit charge for broadcasting time. But this price is not available to qualified candidates until 45 days before a primary election or 60 days before a general election. Because Senator McConnell's current term does not expire until 2009, the earliest day he could be affected by §305 is 45 days before the Republican primary election in 2008. This alleged injury in fact is too remote temporally to satisfy Article III standing. See Whitmore, supra, at 158 ("A threatened injury must be certainly impending to constitute injury in fact" (internal quotation marks and citations omitted)); see also Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (A plaintiff seeking injunctive relief must show he is "'immediately in danger of sustaining some direct injury' as [a] result" of the challenged conduct). Because we hold that the McConnell plaintiffs lack standing to challenge §305, we affirm the District Court's dismissal of the challenge to BCRA §305. BCRA §307 </s> BCRA §307, which amends §315(a)(1) of the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, as added, 90 Stat. 487, increases and indexes for inflation certain FECA contribution limits. The Adams and Paul plaintiffs challenge §307 in this Court. Both groups contend that they have standing to sue. Again, we disagree. The Adams plaintiffs, a group consisting of voters, organizations representing voters, and candidates, allege two injuries, and argue each is legally cognizable, "as established by case law outlawing electoral discrimination based on economic status ... and upholding the right to an equally meaningful vote ...." Brief for Appellants Adams et al. in No. 02-1740, p.31. </s> First, they assert that the increases in hard money limits enacted by §307 deprive them of an equal ability to participate in the election process based on their economic status. But, to satisfy our standing requirements, a plaintiff's alleged injury must be an invasion of a concrete and particularized legally protected interest. Lujan, supra, at 560. We have noted that "[a]lthough standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal, ... it often turns on the nature and source of the claim asserted." Warth v. Seldin, 422 U.S. 490, 500 (1975) (internal quotation marks and citations omitted). We have never recognized a legal right comparable to the broad and diffuse injury asserted by the Adams plaintiffs. Their reliance on this Court's voting rights cases is misplaced. They rely on cases requiring nondiscriminatory access to the ballot and a single, equal vote for each voter. See, e.g., Lubin v. Panish, 415 U.S. 709 (1974) (invalidating a statute requiring a ballot-access fee fixed at a percentage of the salary for the office sought because it unconstitutionally burdened the right to vote); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666-668 (1966) (invalidating a state poll tax because it effectively denied the right to vote). </s> None of these plaintiffs claims a denial of equal access to the ballot or the right to vote. Instead, the plaintiffs allege a curtailment of the scope of their participation in the electoral process. But we have noted that "[p]olitical 'free trade' does not necessarily require that all who participate in the political marketplace do so with exactly equal resources." Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 257 (1986); see also Buckley v. Valeo, 424 U.S. 1, 48 (1976) (per curiam) (rejecting the asserted government interest of "equalizing the relative ability of individuals and groups to influence the outcome of elections" to justify the burden on speech presented by expenditure limits). This claim of injury by the Adams plaintiffs is, therefore, not to a legally cognizable right. </s> Second, the Adams plaintiffs-candidates contend that they have suffered a competitive injury. Their candidates "do not wish to solicit or accept large campaign contributions as permitted by BCRA" because "[t]hey believe such contributions create the appearance of unequal access and influence." Adams Complaint ¶ ;53. As a result, they claim that BCRA §307 puts them at a "fundraising disadvantage," making it more difficult for them to compete in elections. See id., ¶ ;56. </s> The second claimed injury is based on the same premise as the first: BCRA §307's increased hard money limits allow plaintiffs-candidates' opponents to raise more money, and, consequently, the plaintiffs-candidates' ability to compete or participate in the electoral process is diminished. But they cannot show that their alleged injury is "fairly traceable" to BCRA §307. See Lujan, supra, at 562. Their alleged inability to compete stems not from the operation of §307, but from their own personal "wish" not to solicit or accept large contributions, i.e., their personal choice. Accordingly, the Adams plaintiffs fail here to allege an injury in fact that is "fairly traceable" to BCRA. </s> The Paul plaintiffs maintain that BCRA §307 violates the Freedom of Press Clause of the First Amendment. They contend that their political campaigns and public interest advocacy involve traditional press activities and that, therefore, they are protected by the First Amendment's guarantee of the freedom of press. The Paul plaintiffs argue that the contribution limits imposed by BCRA §307, together with the individual and political action committee contribution limitations of FECA §315, impose unconstitutional editorial control upon candidates and their campaigns. The Paul plaintiffs argue that by imposing economic burdens upon them, but not upon the institutional media, see 2 U.S.C. §431(9)(B)(i) (exempting "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate" from the definition of expenditure), BCRA §307 and FECA §315 violate the freedom of the press. </s> The Paul plaintiffs cannot show the "'substantial likelihood' that the requested relief will remedy [their] alleged injury in fact," Stevens, 523 U.S. 83, 105-110 (1998). </s> For the reasons above, we affirm the District Court's dismissal of the Adams and Paul plaintiffs' challenges to BCRA §307 for lack of standing. BCRA §§304, 316, and 319 </s> BCRA §§304 and 316, which amend FECA §315, and BCRA §319, which adds FECA §315A, collectively known as the "millionaire provisions," provide for a series of staggered increases in otherwise applicable contribution-to-candidate limits if the candidate's opponent spends a triggering amount of his personal funds.1 The provisions also eliminate the coordinated expenditure limits in certain circumstances.2 In their challenge to the millionaire provisions, the Adams plaintiffs allege the same injuries that they alleged with regard to BCRA §307. For the reasons discussed above, they fail to allege a cognizable injury that is "fairly traceable" to BCRA. Additionally, as the District Court noted, "none of the Adams plaintiffs is a candidate in an election affected by the millionaire provisions--i.e., one in which an opponent chooses to spend the triggering amount in his own funds--and it would be purely 'conjectural' for the court to assume that any plaintiff ever will be." 251 F.Supp. 2d 176, 431 (DC 2003) (case below) (Henderson, J., concurring in judgment in part and dissenting in part) (quoting Lujan, 504 U.S., at 560). We affirm the District Court's dismissal of the Adams plaintiffs' challenge to the millionaire provisions for lack of standing. BCRA §311 </s> FECA §318 requires that certain communications "authorized" by a candidate or his political committee clearly identify the candidate or committee or, if not so authorized, identify the payor and announce the lack of authorization. 2 U.S.C.A. §441d (main ed. and Supp. 2003). BCRA §311 makes several amendments to FECA §318, among them the expansion of this identification regime to include disbursements for "electioneering communications" as defined in BCRA §201. The McConnell and Chamber of Commerce plaintiffs challenge BCRA §311 by simply noting that §311, along with all of the "electioneering communications" provisions of BCRA, is unconstitutional. We disagree. We think BCRA §311's inclusion of electioneering communications in the FECA §318 disclosure regime bears a sufficient relationship to the important governmental interest of "shed[ding] the light of publicity" on campaign financing. Buckley, 424 U.S., at 81. Assuming as we must that FECA §318 is valid to begin with, and that FECA §318 is valid as amended by BCRA §311's amendments other than the inclusion of electioneering communications, the challenged inclusion of electioneering communications is not itself unconstitutional. We affirm the District Court's decision upholding §311's expansion of FECA §318(a) to include disclosure of disbursements for electioneering communications. BCRA §318 </s> BCRA §318, which adds FECA §324, prohibits individuals "17 years old or younger" from making contributions to candidates and contributions or donations to political parties. 2 U.S.C.A. §441k (Supp. 2003). The McConnell and Echols plaintiffs challenge the provision; they argue that §318 violates the First Amendment rights of minors. We agree. Minors enjoy the protection of the First Amendment. See, e.g., Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 511-513 (1969). Limitations on the amount that an individual may contribute to a candidate or political committee impinge on the protected freedoms of expression and association. See Buckley, supra, at 20-22. When the Government burdens the right to contribute, we apply heightened scrutiny. See ante, at 25-26 (joint opinion of Stevens and O'Connor, JJ.) ("[A] contribution limit involving even 'significant interference' with associational rights is nevertheless valid if it satisfies the 'lesser demand' of being 'closely drawn' to match a 'sufficiently important interest.'" (quoting Federal Election Comm'n v. Beaumont, 539 U.S. ___, ___ (2003) (slip op., at 15)). We ask whether there is a "sufficiently important interest" and whether the statute is "closely drawn" to avoid unnecessary abridgment of First Amendment freedoms. Ante, at 25-26; Buckley, 528 U.S. 377, 391 (2000) ("The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised"). </s> Even assuming, arguendo, the Government advances an important interest, the provision is overinclusive. The States have adopted a variety of more tailored approaches--e.g., counting contributions by minors against the total permitted for a parent or family unit, imposing a lower cap on contributions by minors, and prohibiting contributions by very young children. Without deciding whether any of these alternatives is sufficiently tailored, we hold that the provision here sweeps too broadly. We therefore affirm the District Court's decision striking down §318 as unconstitutional. BCRA §403(b) </s> The National Right to Life plaintiffs argue that the District Court's grant of intervention to the intervenor-defendants, pursuant to Federal Rule of Civil Procedure 24(a) and BCRA §403(b), must be reversed because the intervenor-defendants lack Article III standing. It is clear, however, that the Federal Election Commission (FEC) has standing, and therefore we need not address the standing of the intervenor-defendants, whose position here is identical to the FEC's. See, e.g., Clinton v. City of New York, 524 U.S. 417, 431-432, n.19 (1998); Bowsher v. Synar, 478 U.S. 714, 721 (1986). Cf. Diamond v. Charles, 476 U.S. 54, 68-69, n.21 (1986) (reserving the question for another day). For the foregoing reasons, we affirm the District Court's judgment finding the plaintiffs' challenges to BCRA §305, §307, and the millionaire provisions nonjusticiable, striking down as unconstitutional BCRA §318, and upholding BCRA §311. The judgment of the District Court is Affirmed. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1674v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIFLE ASSOCIATION, etal., APPELLANTS </s> 02-1675v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> FEDERAL ELECTION COMMISSION, etal., APPELLANTS </s> 02-1676v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> JOHN McCAIN, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1702v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> REPUBLICAN NATIONAL COMMITTEE, etal., APPELLANTS </s> 02-1727v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIGHT TO LIFE COMMITTEE, INC., etal., APPELLANTS </s> 02-1733v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN CIVIL LIBERTIES UNION, APPELLANTS </s> 02-1734v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> VICTORIA JACKSON GRAY ADAMS, etal., APPELLANTS </s> 02-1740v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> RON PAUL, UNITED STATES CONGRESSMAN, etal., APPELLANTS </s> 02-1747v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CALIFORNIA DEMOCRATIC PARTY, etal., APPELLANTS </s> 02-1753v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, etal., APPELLANTS </s> 02-1755v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CHAMBER OF COMMERCE OF THE UNITED STATES, etal., APPELLANTS </s> 02-1756v. </s> FEDERAL ELECTION COMMISSION, etal. on appeals from the united states district court for the district of columbia [December 10, 2003] </s> Justice Breyer delivered the opinion of the Court with respect to BCRA Title V.** </s> We consider here the constitutionality of §504 of the Bipartisan Campaign Reform Act of 2002 (BCRA), amending the Communications Act of 1934. That section requires broadcasters to keep publicly available records of politically related broadcasting requests. 47 U.S.C.A. §315(e) (Supp. 2003). The McConnell plaintiffs, who include the National Association of Broadcasters, argue that §504 imposes onerous administrative burdens, lacks any offsetting justification, and consequently violates the First Amendment. For similar reasons, the three judges on the District Court found BCRA §504 unconstitutional on its face. 251 F.Supp. 2d 176, 186 (DC 2003) (per curiam) (case below). We disagree, and we reverse that determination. I </s> BCRA §504's key requirements are the following: (1) A "candidate request" requirement calls for broadcasters to keep records of broadcast requests "made by or on behalf of" any "legally qualified candidate for public office." 47 U.S.C.A. §315(e)(1)(A) (Supp. 2003). </s> (2) An "election message request" requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast "message[s]" that refer either to a "legally qualified candidate" or to "any election to Federal office." §§315(e)(1)(B)(i), (ii). </s> (3) An "issue request" requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast "message[s]" related to a "national legislative issueof public importance," §315(e)(1)(B)(iii), or otherwise relating to a "political matter of national importance," §315(e)(1)(B). </s> We shall consider each provision in turn. II </s> BCRA §504's "candidate request" requirements are virtually identical to those contained in a regulation that the Federal Communications Commission (FCC) promulgated as early as 1938 and which with slight modifications the FCC has maintained in effect ever since. 47 CFR §73.1943 (2002); compare 3 Fed. Reg. 1692 (1938) (47 CFR §36a4); 13 Fed. Reg. 7486 (1948) (47 CFR §§3.190(d), 3.290(d), 3.690(d)); 17 Fed. Reg. 4711 (1952) (47 CFR §3.590(d)); 19 Fed. Reg. 5949 (1954); 23 Fed. Reg. 7817 (1958); 28 Fed. Reg. 13593 (1963) (47 CFR §73.120(d)); 43 Fed. Reg. 32795 (1978) (47 CFR §73.1940(d)); 57 Fed. Reg. 210 (1992) (47 CFR §73.1943). See generally Brief in Opposition to Motion of Appellee National Association of Broadcasters for Summary Affirmance in No. 02-1676, pp.9-10 (hereinafter Brief Opposing Summary Affirmance). In its current form the FCC regulation requires broadcast licensees to "keep" a publicly available file "of all requests for broadcast time made by or on behalf of a candidate for public office," along with a notation showing whether the request was granted, and (if granted) a history that includes "classes of time," "rates charged," and when the "spots actually aired." 47 CFR §73.1943(a) (2002); §76.1701(a) (same for cable systems). These regulation-imposed requirements mirror the statutory requirements imposed by BCRA §504 with minor differences which no one here challenges. Compare 47 CFR §73.1943 with 47 U.S.C.A. §315(e)(2) (see Appendix, infra). </s> The McConnell plaintiffs argue that these requirements are "intolerabl[y]" "burdensome and invasive." Brief for Appellants/Cross-Appellees Senator Mitch McConnell etal. in No. 02-1674 etal., p. 74 (hereinafter Brief for McConnell Plaintiffs). But we do not see how that could be so. The FCC has consistently estimated that its "candidate request" regulation imposes upon each licensee an additional administrative burden of six to seven hours of work per year. See 66 Fed. Reg. 37468 (2001); id., at 18090; 63 Fed. Reg. 26593 (1998); id., at 10379; 57 Fed. Reg. 18492 (1992); see also 66 Fed. Reg. 29963 (2001) (total annual burden of one hour per cable system). That burden means annual costs of a few hundred dollars at most, a microscopic amount compared to the many millions of dollars of revenue broadcasters receive from candidates who wish to advertise. </s> Perhaps for this reason, broadcasters in the past did not strongly oppose the regulation or its extension. Cf., e.g., 17 Fed. Reg. 4711 (1952) ("No comments adverse to the adoption of the proposed rule have been received"); 43 Fed. Reg. 32794 (1978) (no adverse comments). Indeed in 1992, "CBS" itself "suggest[ed]" that the candidate file "include a record of all requests for time." 57 Fed. Reg. 206 (1992); cf. 63 Fed. Reg. 49493 (1998) (FCC "not persuaded that the current retention period [two years] is overly burdensome to licensees"). </s> In any event, as the FCC wrote in an analogous context, broadcaster recordkeeping requirements "'simply run with the territory.'" 40 Fed. Reg. 18398 (1975). Broadcasters must keep and make publicly available numerous records. See 47 CFR §73.3526 (2002) (general description of select recordkeeping requirements for commercial stations); see also §§73.1202, 73.3526(e)(9)(i) (retention of all "written comments and suggestions [including letters and e-mail] received from the public regarding operation of the station" for three years); §73.1212(e) (sponsorship identification records, including the identification of a sponsoring entity's executive officers and board-level members when sponsoring "political matter or matter involving the discussion of a controversial issue of public importance"); §73.1840 (retention of station logs); §73.1942 (candidate broadcast records); §73.2080 (equal employment oppor-tunities records); §§73.3526(e)(11)(i), (e)(12) ("list of programs that have provided the station's most significant treatment of community issues during the preceding three month period," including "brief narrative describing [the issues, and] time, date, duration, and title"); §§73.3526(e)(11)(ii), (iii) (reports of children's program, and retention of records sufficient to substantiate "compliance with the commercial limits on children's programming"); §73.3613(a) (network affiliation contracts); §§73.3613(b), 73.3615, 73.3526(e)(5) (ownership-related reports); §73.3613(c) ("[m]anagement consultant agreements"); §73.3613(d) ("[t]ime brokerage agreements"). Compared to these longstanding recordkeeping requirements, an additional six to seven hours is a small drop in a very large bucket. The McConnell plaintiffs also claim that the "candidate requests" requirement fails significantly to further any important governmental interest. Brief for McConnell Plaintiffs 74. But, again, we cannot agree. The FCC has pointed out that "[t]hese records are necessary to permit political candidates and others to verify that licensees have complied with their obligations relating to use of their facilities by candidates for political office" pursuant to the "equal time" provision of 47 U.S.C. §315(a). 63 Fed. Reg. 49493 (1998). They also help the FCC determine whether broadcasters have violated their obligation to sell candidates time at the "lowest unit charge." 47 U.S.C. §315(b). As reinforced by BCRA, the "candidate request" requirements will help the FCC, the Federal Election Commission, and "the public to evaluate whether broadcasters are processing [candidate] requests in an evenhanded fashion," Brief Opposing Summary Affirmance 9, thereby helping to assure broadcasting fairness. 47 U.S.C. §315(a); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). They will help make the public aware of how much money candidates may be prepared to spend on broadcast messages. 2 U.S.C.A. §434 (main ed. and Supp. 2003); see ante, at 87-93 (joint opinion of Stevens and O'Connor, JJ.) (hereinafter joint opinion). And they will provide an independently compiled set of data for purposes of verifying candidates' compliance with the disclosure requirements and source limitations of BCRA and the Federal Election Campaign Act of 1971. 2 U.S.C.A. §434; cf. Adventure Communications, Inc. v. Kentucky Registry of Election Finance, 191 F.3d 429, 433 (CA4 1999) (candidate compliance verification); 63 Fed. Reg. 49493 (1998) (FCC finding record retention provision provides public with "necessary and adequate access"). We note, too, that the FCC's regulatory authority is broad. Red Lion, supra, at 380 ("broad" mandate to assure broadcasters operate in public interest); National Broadcasting Co. v. United States, 319 U.S. 190, 219 (1943) (same). And we have previously found broad governmental authority for agency information demands from regulated entities. Compare United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946); Donovan v. Lone Steer, Inc., 464 U.S. 408, 414-415 (1984). </s> The Chief Justice suggests that the Government has not made these particular claims. But it has--though succinctly--for it has cross-referenced the relevant regulatory rules. Compare post, at 12-13 (opinion of Rehnquist, C. J.), with Brief Opposing Summary Affirmance; Brief for McConnell Plaintiffs 73-74; Brief for FEC etal. in No. 02-1674 etal., pp. 132-133. And succinctness through cross-reference was necessary given our procedural requirement that the Government set forth in a 140-page brief all its arguments concerning each of the 20 BCRA provisions here under contest. 251 F.Supp. 2d, at 186-188. </s> In sum, given the Government's reference to the 65-year-old FCC regulation and the related considerations we have mentioned, we cannot accept the argument that the constitutionality of the "candidate request" provision lacks evidentiary support. The challengers have made no attempt to explain away the FCC's own contrary conclusions and the mass of evidence in related FCC records and proceedings. E.g., 57 Fed. Reg. 189 (1992); cf. supra, at 4-5; ante, at 117-118 (joint opinion) (upholding BCRA's coordination provision based, in part, on prior experience under similar provision). Because we cannot, on the present record, find the longstanding FCC regulation unconstitutional, we likewise cannot strike down the "candidate request" provision in BCRA §504; for the latter simply embodies the regulation in a statute, thereby blocking any agency attempt to repeal it. III </s> BCRA §504's "election message request" requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast a "message" about "a legally qualified candidate" or "any election to Federal office." 47 U.S.C.A. §§315(e)(1)(B)(i), (ii) (Supp. 2003). Although these requirements are somewhat broader than the "candidate request" requirement, they serve much the same purposes. A candidate's supporters or opponents account for many of the requests to broadcast "message[s]" about a "candidate." Requests to broadcast messages about an "election" may include messages that favor one candidate or another, along with other messages that may be more neutral. Given the nature of many of the messages, recordkeeping can help both the regulatory agencies and the public evaluate broadcasting fairness, and determine the amount of money that individuals or groups, supporters or opponents, intend to spend to help elect a particular candidate. Cf. ante, at 100-101 (joint opinion) (upholding stringent restrictions on all election-time advertising that refers to a candidate because such advertising will often convey message of support or opposition). Insofar as the request is to broadcast neutral material about a candidate or election, the disclosure can help the FCC carry out other statutory functions, for example, determining whether a broadcasting station is fulfilling its licensing obligation to broadcast material important to the community and the public. 47 U.S.C. §315(a) ("obligation ... to afford reasonable opportunity for the discussion of conflicting views on issues of public importance"); 47 CFR §73.1910 (2002); §§73.3526(e)(11)(i), (e)(12) (recordkeeping requirements for issues important to the community). </s> For reasons previously discussed, supra, at 4-5, and on the basis of the material presented, we cannot say that these requirements will impose disproportionate administrative burdens. They ask the broadcaster to keep information about the disposition of the request, and information identifying the individual or company requesting the broadcast time (name, address, contact information, or, if the requester is not an individual, the names of company officials). 47 U.S.C.A. §315(e)(2) (Supp. 2003). Insofar as the "request" is made by a candidate's "supporters," the "candidate request" regulation apparently already requires broadcasters to keep such records. 43 Fed. Reg. 32794 (1978). Regardless, the information should prove readily available, for the individual requesting a broadcast must provide it to the broadcaster should the broadcaster accept the request. 47 CFR §73.1212(e) (2002). And as we have previously pointed out, the recordkeeping requirements do not reach significantly beyond other FCCrecordkeeping rules, for example, those requiring broadcasting licensees to keep material showing com-pliance with their license-related promises to broad-cast material on issues of public importance. See, e.g., §§73.3526(e)(11)(i), (e)(12) (recordkeeping requirements for issues important to the community); supra, at 4-5 (collecting regulations); Office of Communication of United Church of Christ v. FCC, 707 F.2d 1413, 1421-1422 (CADC 1983) (describing FCC rules, in force during 1960-1981, that required nonentertainment programming in 14 specific areas and mandated publicly available records detailing date, time, source, and description to substantiate compliance). If, as we have held, the "candidate request" requirements are constitutional, supra, at 7, the "election message" requirements, which serve similar governmental interests and impose only a small incremental burden, must be constitutional as well. IV </s> The "issue request" requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast "message[s]" about "a national legislative issue of public importance" or "any political matter of national importance." 47 U.S.C.A. §§315(e)(1)(B), (e)(1)(B)(iii) (Supp. 2003). These recordkeeping requirements seem likely to help the FCC determine whether broadcasters are carrying out their "obligations to afford reasonable opportunity for the discussion of conflicting views on issues of public importance," 47 CFR §73.1910 (2002), and whether broadcasters are too heavily favoring entertainment, and discriminating against broadcasts devoted to public affairs, see ibid.; 47 U.S.C §315(a); Red Lion, 395 U.S., at 380. The McConnell plaintiffs claim that the statutory language--"political matter of national importance" or "national legislative issue of public importance"--is unconstitutionally vague or overbroad. Brief for McConnell Plaintiffs 74-75. But that language is no more general than the language that Congress has used to impose other obligations upon broadcasters. Compare 47 U.S.C.A. §315(e)(1)(B) (Supp. 2003) ("political matter of national importance") and §315(e)(1)(B)(iii) ("national legislative issue of public importance") (both added by BCRA §504), with 47 U.S.C. §315(a) ("obligation ... to operate in the public interest" and to afford reasonable opportunity for discussion of "issues of public importance"); §317(a)(2) (FCC disclosure requirements relating to any "political program" or "discussion of any controversial issue"); cf. 47 CFR §73.1212(e) (2002) ("political matter or ... a controversial issue of public importance"); and 9 Fed. Reg. 14734 (1944) ("public controversial issues"); ante, at 117-118 (joint opinion) (noting that the experience under longstanding regulations undermines claims of chilling effect). And that language is also roughly comparable to other language in BCRA that we uphold today. E.g., ante, at 61-62, and n.64 (joint opinion) (upholding 2 U.S.C.A. §431(20)(A)(iii) (Supp. 2003) ("public communication that refers to a clearly identified candidate for Federal office ... and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office")), ante, at 117-118 (upholding 2 U.S.C.A. §441a(a)(7)(B)(ii) (Supp. 2003) (counting as coordinated disbursements that are made "in cooperation, consultation, or concert with, or at the request or suggestion of [a political party]") against challenge and noting that an "agreement" is not necessary for precision). </s> Whether these requirements impose disproportionate administrative burdens is more difficult to say. On the one hand, the burdens are likely less heavy than many that other FCC regulations have imposed, for example, the burden of keeping and disclosing "[a]ll written comments and suggestions" received from the public, including every e-mail. 47 CFR §§73.1202, 73.3526(e)(9) (2002); see also supra, at 4-5. On the other hand, the burdens are likely heavier than those imposed by BCRA §504's other provisions, previously discussed. </s> The regulatory burden, in practice, will depend on how the FCC interprets and applies this provision. The FCC has adequate legal authority to write regulations that may limit, and make more specific, the provision's potential linguistic reach. 47 U.S.C. §315(d). It has often ameliorated regulatory burdens by interpretation in the past, and there is no reason to believe it will not do so here. See 14 FCC Rcd. 4653, ¶ ;25 (1999) (relaxing the recordkeeping requirements in respect to cable systems that serve fewer than 5,000 subscribers); 14 FCC Rcd. 11121, ¶ ;¶ ;20-22 (1999) (requiring candidates to inspect the political file at a station rather than requiring licensees to send out photocopies of the files to candidates upon telephone request). The parties remain free to challenge the provisions, as interpreted by the FCC in regulations, or as otherwise applied. Any such challenge will likely provide greater information about the provisions' justifications and administrative burdens. Without that additional information, we cannot now say that the burdens are so great, or the justifications so minimal, as to warrant finding the provisions unconstitutional on their face. </s> The McConnell plaintiffs and The Chief Justice make one final claim. They say that the "issue request" requirement will force them to disclose information that will reveal their political strategies to opponents, perhaps prior to a broadcast. See post, at 14-15 (dissenting opinion). We are willing to assume that the Constitution includes some form of protection against premature disclosure of campaign strategy--though, given the First Amendment interest in free and open discussion of campaign issues, we make this assumption purely for argument's sake. Nonetheless, even on that assumption we do not see how BCRA §504 can be unconstitutional on its face. </s> For one thing, the statute requires disclosure of names, addresses, and the fact of a request; it does not require disclosure of substantive campaign content. See 47 U.S.C.A. §315(e)(2) (Supp. 2003). For another, the statutory words "as soon as possible," §315(e)(3), would seem to permit FCC disclosure-timing rules that would avoid any premature disclosure that the Constitution itself would forbid. Further, the plaintiffs do not point to--and our own research cannot find--any specific indication of such a "strategy-disclosure" problem arising during the past 65 years in respect to the existing FCC "candidate request" requirement, where the strategic problem might be expected to be more acute. Finally, we today reject an analogous facial attack--premised on speculations of "advance disclosure"--on a similar BCRA provision. See ante, at 94 (joint opinion). Thus, the "strategy disclosure" argument does not show that BCRA §504 is unconstitutional on its face, but the plaintiffs remain free to raise this argument when §504 is applied. V </s> The Chief Justice makes two important arguments in response to those we have set forth. First, he says that we "approac[h] §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected." Post, at 11 (dissenting opinion). The Chief Justice is certainly correct in emphasizing the importance of the speech interests of candidates and other potential speakers, but we have not ignored their First Amendment "perspective." To the contrary, we have discussed the speakers' interests together with the broadcasters' interests because the two sets of interests substantially overlap. For example, the speakers' vagueness argument is no different from the broadcasters', and it fails for the same reasons, e.g., the fact that BCRA §504's language is just as definite and precise as other language that we today uphold. See supra, at 10. </s> We have separately discussed the one and only speech-related claim advanced on behalf of candidates (or other speakers) that differs from the claims set forth by the broadcasters. See supra, at 11-12. This is the claim that the statute's disclosure requirements will require candidates to reveal their political strategies to opponents. We just said, and we now repeat, that BCRA §504 can be applied, in a significant number of cases, without requiring any such political-strategy disclosure--either because disclosure in many cases will not create any such risk or because the FCC may promulgate rules requiring disclosure only after any such risk disappears, or both. </s> Moreover, candidates (or other speakers) whom §504 affects adversely in this way (or in other ways) remain free to challenge the lawfulness of FCC implementing regulations and to challenge the constitutionality of §504 as applied. To find that the speech-related interests of candidates and others may be vindicated in an as-applied challenge is not to "ignor[e]" those interests. </s> Second, The Chief Justice says that "the Government, in its brief, proffers no interest whatever to support §504 as a whole," adding that the existence of "pre-existing unchallenged agency regulations imposing similar disclosure requirements" cannot "compel the conclusion that §504 is constitutional," nor somehow "relieve the Government of its burden of advancing a constitutionally sufficient justification for §504." Post, at 12-13 (dissenting opinion). </s> Again The Chief Justice is correct in saying that the mere existence of similar FCC regulation-imposed requirements--even if unchallenged for at least 65 years--cannot prove that those requirements are constitutional. But the existence of those regulations means that we must read beyond the briefs in this case before holding those requirements unconstitutional. Before evaluating the relevant burdens and justifications, we must at least become acquainted with the FCC's own view of the matter. We must follow the Government's regulation-related references to the relevant regulatory records, related FCC regulatory conclusions, and the FCC's enforcement experience. We must take into account, for example, the likelihood that the reason there is "nothing in the record that indicates licensees have treated purchasers unfairly," post, at 13 (Rehnquist, C.J., dissenting), is that for many decades similar FCC regulations have made that unfair treatment unlawful. And, if we are to avoid disrupting related agency law, we must evaluate what we find in agency records and related experience before holding this similar statutory provision unconstitutional on its face. </s> Even a superficial examination of those relevant agency materials reveals strong supporting justifications, and a lack of significant administrative burdens. And any additional burden that the statute, viewed facially, imposes upon interests protected by the First Amendment seems slight compared to the strong enforcement-related interests that it serves. Given the FCC regulations and their history, the statutory requirements must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny. </s> That is why the regulations are relevant. That is why the brevity of the Government's discussion here cannot be determinative. That is why we fear that The Chief Justice's contrary view would lead us into an unfortunate--and at present unjustified--revolution in communications law. And that is why we disagree with his dissent. </s> The portion of the judgment of the District Court invalidating BCRA §504 is reversed. </s> It is so ordered. APPENDIX TO OPINION OF THE COURT </s> Title 47 U.S.C.A. §315(e) (Supp. 2003), as amended by BCRA §504, provides: "Political record "(1) In general </s> "A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that-- </s> "(A) is made by or on behalf of a legally qualified candidate for public office; or </s> "(B) communicates a message relating to any political matter of national importance, including-- </s> "(i) a legally qualified candidate; </s> "(ii) any election to Federal office; or </s> "(iii) a national legislative issue of public importance. </s> "(2) Contents of record </s> "A record maintained under paragraph (1) shall contain information regarding-- </s> "(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; </s> "(B) the rate charged for the broadcast time; </s> "(C) the date and time on which the communication is aired; </s> "(D) the class of time that is purchased; </s> "(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); </s> "(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and </s> "(G) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. </s> "(3) Time to maintain file </s> "The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years." </s> Title 47 CFR §73.1943 (2002) provides: "Political file. </s> "(a) Every licensee shall keep and permit public inspection of a complete and orderly record (political file) of all requests for broadcast time made by or on behalf of a candidate for public office, together with an appropriate notation showing the disposition made by the licensee of such requests, and the charges made, if any, if the request is granted. The 'disposition' includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased. </s> "(b) When free time is provided for use by or on behalf of candidates, a record of the free time provided shall be placed in the political file. </s> "(c) All records required by this paragraph shall be placed in the political file as soon as possible andshall be retained for a period of two years. As soonas possible means immediately absent unusualcircumstances." </s> MITCH McCONNELL, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1674v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIFLE ASSOCIATION, etal., APPELLANTS </s> 02-1675v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> FEDERAL ELECTION COMMISSION, etal., APPELLANTS </s> 02-1676v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> JOHN McCAIN, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1702v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> REPUBLICAN NATIONAL COMMITTEE, etal., APPELLANTS </s> 02-1727v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIGHT TO LIFE COMMITTEE, INC., etal., APPELLANTS </s> 02-1733v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN CIVIL LIBERTIES UNION, APPELLANTS </s> 02-1734v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> VICTORIA JACKSON GRAY ADAMS, etal., APPELLANTS </s> 02-1740v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> RON PAUL, UNITED STATES CONGRESSMAN, etal., APPELLANTS </s> 02-1747v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CALIFORNIA DEMOCRATIC PARTY, etal., APPELLANTS </s> 02-1753v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, etal., APPELLANTS </s> 02-1755v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CHAMBER OF COMMERCE OF THE UNITED STATES, etal., APPELLANTS </s> 02-1756v. </s> FEDERAL ELECTION COMMISSION, etal. on appeals from the united states district court for the district of columbia [December 10, 2003] </s> Chief Justice Rehnquist, dissenting with respect to BCRA Titles I and V.** </s> Although I join Justice Kennedy's opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, and to dissent from the Court's opinion upholding §504 of Title V. I </s> The issue presented by Title I is not, as the Court implies, whether Congress can permissibly regulate campaign contributions to candidates, de facto or otherwise, or seek to eliminate corruption in the political process. Rather, the issue is whether Congress can permissibly regulate much speech that has no plausible connection to candidate contributions or corruption to achieve those goals. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are "closely drawn" to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as "do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders." Ante, at 28 (joint opinion of Stevens and O'Connor, JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent. The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from "solicit[ing]," "receiv[ing]," "direct[ing] to another person," and "spend[ing]" any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U.S.C.A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, "donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate's federal election." Ante, at 36. Accordingly, "[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude." Ibid. But the Court misses the point. Certainly "infusions of money into [candidates'] campaigns," Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985), can be regulated, but §323(a) does not regulate only donations given to influence a particular federal election; it regulates all donations to national political committees, no matter the use to which the funds are put. </s> The Court attempts to sidestep the unprecedented breadth of this regulation by stating that the "close relationship between federal officeholders and the national parties" makes all donations to the national parties "suspect." Ante, at 45. But a close association with others, especially in the realm of political speech, is not a surrogate for corruption; it is one of our most treasured First Amendment rights. See California Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 225 (1989); Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986). The Court's willingness to impute corruption on the basis of a relationship greatly infringes associational rights and expands Congress' ability to regulate political speech. And there is nothing in the Court's analysis that limits congressional regulation to national political parties. In fact, the Court relies in part on this closeness rationale to regulate nonprofit organizations. Ante, at 47-48, n.51. Who knows what association will be deemed too close to federal officeholders next. When a donation to an organization has no potential to corrupt a federal officeholder, the relationship between the officeholder and the organization is simply irrelevant. </s> The Court fails to recognize that the national political parties are exemplars of political speech at all levels of government, in addition to effective fundraisers for federal candidates and officeholders. For sure, national political party committees exist in large part to elect federal candidates, but as a majority of the District Court found, they also promote coordinated political messages and participate in public policy debates unrelated to federal elections, promote, even in off-year elections, state and local candidates and seek to influence policy at those levels, and increase public participation in the electoral process. See 251 F.Supp. 2d 176, 334-337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id., at 820-821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185-186 (declaration of Stephen L. Dasbach et al. ¶ ;11 (describing Libertarian Party)). </s> As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F.Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra, at 574; Eu, supra, at 225. When political parties engage in pure political speech that has little or no potential to corrupt their federal candidates and officeholders, the government cannot constitutionally burden their speech any more than it could burden the speech of individuals engaging in these same activities. E.g., National Conservative Political Action Comm., supra, at 496-497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 297-298 (1981); Buckley, 424 U.S., at 27. Notwithstanding the Court's citation to the numerous abuses of FECA, under any definition of "exacting scrutiny," the means chosen by Congress, restricting all donations to national parties no matter the purpose for which they are given or are used, are not "closely drawn to avoid unnecessary abridgment of associational freedoms," id., at 25. </s> BCRA's overinclusiveness is not limited to national political parties. To prevent the circumvention of the ban on the national parties' use of nonfederal funds, BCRA extensively regulates state parties, primarily state elections, and state candidates. For example, new FECA §323(b), by reference to new FECA §§301(20)(A)(i)-(ii), prohibits state parties from using nonfederal funds1 for general partybuilding activities such as voter registration, voter identification, and get out the vote for state candidates even if federal candidates are not mentioned. See 2 U.S.C.A. §§441i(b), 431(20)(A)(i)-(ii) (Supp. 2003). New FECA §323(d) prohibits state and local political party committees, like their national counterparts, from soliciting and donating "any funds" to nonprofit organizations such as the National Rifle Association or the National Association for the Advancement of Colored People (NAACP). See 2 U.S.C.A. §441i(d). And, new FECA §323(f) requires a state gubernatorial candidate to abide by federal funding restrictions when airing a television ad that tells voters that, if elected, he would oppose the President's policy of increased oil and gas exploration within the State because it would harm the environment. See 2 U.S.C.A. §§441i(f), 431(20)(A)(iii) (regulating "public communication[s] that refe[r] to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that ... attacks or opposes a candidate for that office"). </s> Although these provisions are more focused on activities that may affect federal elections, there is scant evidence in the record to indicate that federal candidates or officeholders are corrupted or would appear corrupted by donations for these activities. See 251 F.Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id., at 779-780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 616 (1996) (plurality opinion) (noting that "the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated"). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante, at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions,2 see ante, at 57, 67, 71, 78, it must defer to the "'predictive judgments of Congress,'" ante, at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 665 (1994)). </s> Yet the Court cannot truly mean what it says. Newspaper editorials and political talk shows benefit federal candidates and officeholders every bit as much as a generic voter registration drive conducted by a state party; there is little doubt that the endorsement of a major newspaper affects federal elections, and federal candidates and officeholders are surely "grateful," ante, at 60, for positive media coverage. I doubt, however, the Court would seriously contend that we must defer to Congress' judgment if it chose to reduce the influence of political endorsements in federal elections.3 See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide "right to reply" to any candidate who was personally or professionally assailed in order to eliminate the "abuses of bias and manipulative reportage" by the press). </s> It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U.S., at 38 (upholding restrictions on funds donated to national political parties "for the purpose of influencing any election for a Federal office" because they were prophylactic measures designed "to prevent evasion" of the contribution limit on candidates). All political speech that is not sifted through federal regulation circumvents the regulatory scheme to some degree or another, and thus by the Court's standard would be a "loophole" in the current system.4 Unless the Court would uphold federal regulation of all funding of political speech, a rationale dependent on circumvention alone will not do. By untethering its inquiry from corruption or the appearance of corruption, the Court has removed the touchstone of our campaign finance precedent and has failed to replace it with any logical limiting principle. </s> But such an untethering is necessary to the Court's analysis. Only by using amorphous language to conclude a federal interest, however vaguely defined, exists can the Court avoid the obvious fact that new FECA §§323(a), (b), (d), and (f) are vastly overinclusive. Any campaign finance law aimed at reducing corruption will almost surely affect federal elections or prohibit the circumvention of federal law, and if broad enough, most laws will generally reduce some appearance of corruption. Indeed, it is precisely because broad laws are likely to nominally further a legitimate interest that we require Congress to tailor its restrictions; requiring all federal candidates to self-finance their campaigns would surely reduce the appearance of donor corruption, but it would hardly be constitutional. In allowing Congress to rely on general principles such as affecting a federal election or prohibiting the circumvention of existing law, the Court all but eliminates the "closely drawn" tailoring requirement and meaningful judicial review. </s> No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the "purpose of influencing a federal election," and thus are already regulated. See Buckley, supra. Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are "closely drawn" to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today's decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption. II </s> BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that "is made by or on behalf of a legally qualified candidate for public office" or that "communicates a message relating to any political matter of national importance," including communications relating to "a legally qualified candidate," "any election to Federal office," and "a national legislative issue of public importance." BCRA §504; 47 U.S.C.A. §315(e)(1) (Supp. 2003).5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g., BCRA §201. The Court concludes that §504 "must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny." Ante, at 15 (opinion of Breyer, J.). I disagree. This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g., ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante, at 7 (opining that this Court has recognized "broad governmental authority for agency information demands from regulated entities"); ante, at 8-9 ("[W]e cannot say that these requirements will impose disproportionate administrative burdens"). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante, at 8 (discussing the ways in which the disclosure "can help" the FCC and the public); ante, at 10 (noting that the "recordkeeping requirements seem likely to help the FCC" enforce the fairness doctrine). </s> Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley, 424 U.S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante, at 89 (joint opinion of Stevens and O'Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA's disclosure requirements apply to BCRA §201's disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole. </s> Contrary to the Court's suggestion, ante, at 7 (opinion of Breyer, J.), the Government's brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following: "As explained in the government's brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter 'involving the discussion of a controversial issue of public importance.' 47 C.F.R. 73.1212(d) and (e) (2002); see 47 C.F.R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti, 435 U.S. at 792 n.32 ('Identification of the source of advertising may be required ... so that the people will be able to evaluate the arguments to which they are being subjected.'). </s> "The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U.S.C. 315(e)(2)(G) (added by BCRA §504), with 47 C.F.R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504's requirements are more onerous than the FCC's longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02-1676 Gov't Br. in Opp. to Mot. of NAB for Summ. Aff. 4-9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs' First Amendment claim should be rejected." Brief for FEC etal. in No. 02-1674 etal., pp.132-133; ante, at 7. </s> While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court's and the Government's argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504. </s> At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a "reasonable percentage" of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). Assuming, arguendo, this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F.Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interestsin Buckley that we found to be "sufficiently importantto outweigh the possibility of infringement," 424 U.S., at 66. </s> As to the disclosure requirements involving "any political matter of national importance" under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted.6 First, insofar as BCRA §504 requires reporting of "request[s for] broadcast time" as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley, which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 354 (1995). </s> As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante, at 87-95 (joint opinion of Stevens and O'Connor, JJ.), and requires purchasers of "electioneering communications" to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser's First Amendment rights: as noted above, §201 is limited to purchasers' disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees' disclosure of requests for broadcast time by purchasers. Not only are the purchasers' requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap. </s> The Government cannot justify, and for that matter, has not attempted to justify, its requirement that "request[s for] broadcast" time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of "requests" should be upheld. Such disclosure risks, inter alia, allowing candidates and political groups the opportunity to ferret out a purchaser's political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers. </s> Absent some showing of a Government interest served by §504 and in light of the breadth of disclosure of "requests," I must conclude that §504 fails to satisfy First Amendment scrutiny. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1674v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIFLE ASSOCIATION, etal., APPELLANTS </s> 02-1675v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> FEDERAL ELECTION COMMISSION, etal., APPELLANTS </s> 02-1676v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> JOHN McCAIN, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1702v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> REPUBLICAN NATIONAL COMMITTEE, etal., APPELLANTS </s> 02-1727v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIGHT TO LIFE COMMITTEE, INC., etal., APPELLANTS </s> 02-1733v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN CIVIL LIBERTIES UNION, APPELLANTS </s> 02-1734v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> VICTORIA JACKSON GRAY ADAMS, etal., APPELLANTS </s> 02-1740v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> RON PAUL, UNITED STATES CONGRESSMAN, etal., APPELLANTS </s> 02-1747v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CALIFORNIA DEMOCRATIC PARTY, etal., APPELLANTS </s> 02-1753v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, etal., APPELLANTS </s> 02-1755v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CHAMBER OF COMMERCE OF THE UNITED STATES, etal., APPELLANTS </s> 02-1756v. </s> FEDERAL ELECTION COMMISSION, etal. on appeals from the united states district court for the district of columbia [December 10, 2003] </s> Justice Stevens, dissenting with respect to §305.** </s> The Chief Justice, writing for the Court, concludes that the McConnell plaintiffs lack standing to challenge §305 of BCRA because Senator McConnell cannot be affected by the provision until "45 days before the Republican primary election in 2008." Ante, at 4. I am not persuaded that Article III's case-or-controversy requirement imposes such a strict temporal limit on our jurisdiction. By asserting that he has run attack ads in the past, that he plans to run such ads in his next campaign, and that §305 will adversely affect his campaign strategy, Senator McConnell has identified a "concrete," "'distinct,'" and "'actual'" injury, Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). That the injury is distant in time does not make it illusory. The second prong of the standing inquiry--whether the alleged injury is fairly traceable to the defendants' challenged action and not the result of a third party's independent choices†--poses a closer question. Section 305 does not require broadcast stations to charge a candidate higher rates for unsigned ads that mention the candidate's opponent. Rather, the provision simply permits stations to charge their normal rates for such ads. Some stations may take advantage of this regulatory gap and adopt pricing schemes that discriminate between the kind of ads that Senator McConnell has run in the past and those that strictly comply with §305. It is also possible, however, that instead of incurring the transaction costs of policing candidates' compliance with §305, stations will continue to charge the same rates for attack ads as for all other campaign ads. In the absence of any record evidence that stations will uniformly choose to charge Senator McConnell higher rates for the attack ads he proposes to run in 2008, it is at least arguable that his alleged injury is not traceable to BCRA §305. Nevertheless, I would entertain plaintiffs' challenge to §305 on the merits and uphold the section. Like BCRA §§201, 212, and 311, §305 serves an important--and constitutionally sufficient--informational purpose. Moreover, §305's disclosure requirements largely overlap those of §311, and plaintiffs identify no reason why any candidate already in compliance with §311 will be harmed by the marginal additional burden of complying with §305. Indeed, I am convinced that "the important governmental interest of 'shed[ding] the light of publicity' on campaign financing," invoked above in connection with §311, ante, at 9 (opinion of Rehnquist, C.J.), would suffice to support a legislative provision expressly requiring all sponsors of attack ads to identify themselves in their ads. That §305 seeks to achieve the same purpose indirectly, by withdrawing a statutory benefit, does not render the provision any less sound. </s> Finally, I do not regard §305 as a constitutionally suspect "viewpoint-based regulation." Brief for Appellants/Cross-Appellees Senator Mitch McConnell etal. in No. 02-1674 etal., p. 67. Like BCRA's other disclosure requirements, §305 evenhandedly regulates speech based on its electioneering content. Although the section reaches only ads that mention opposing candidates, it applies equally to all such ads. Disagreement with one's opponent obviously expresses a "viewpoint," but §305 treats that expression exactly like the opponent's response. </s> In sum, I would uphold §305. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1674v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIFLE ASSOCIATION, etal., APPELLANTS </s> 02-1675v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> FEDERAL ELECTION COMMISSION, etal., APPELLANTS </s> 02-1676v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> JOHN McCAIN, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1702v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> REPUBLICAN NATIONAL COMMITTEE, etal., APPELLANTS </s> 02-1727v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIGHT TO LIFE COMMITTEE, INC., etal., APPELLANTS </s> 02-1733v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN CIVIL LIBERTIES UNION, APPELLANTS </s> 02-1734v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> VICTORIA JACKSON GRAY ADAMS, etal., APPELLANTS </s> 02-1740v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> RON PAUL, UNITED STATES CONGRESSMAN, etal., APPELLANTS </s> 02-1747v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CALIFORNIA DEMOCRATIC PARTY, etal., APPELLANTS </s> 02-1753v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, etal., APPELLANTS </s> 02-1755v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CHAMBER OF COMMERCE OF THE UNITED STATES, etal., APPELLANTS </s> 02-1756v. </s> FEDERAL ELECTION COMMISSION, etal. on appeals from the united states district court for the district of columbia [December 10, 2003] </s> Justice Scalia, concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. </s> With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice; I join the opinion of Justice Kennedy, except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II-A, and II-B of the opinion of Justice Thomas. With respect to Titles III and IV, I join The Chief Justice's opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own. </s> This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U.S. 514 (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of "soft" money to fund "issue ads" that incumbents find so offensive. </s> To be sure, the legislation is evenhanded: It similarly prohibits criticism of the candidates who oppose Members of Congress in their reelection bids. But as everyone knows, this is an area in which evenhandedness is not fairness. If all electioneering were evenhandedly prohibited, incumbents would have an enormous advantage. Likewise, if incumbents and challengers are limited to the same quantity of electioneering, incumbents are favored. In other words, any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents. </s> Beyond that, however, the present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much "hard money"--the sort of funding generally not restricted by this legislation--as do their challengers? See FEC, 1999-2000 Financial Activity of All Senateand House Campaigns (Jan. 1, 1999-Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court's case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in "hard" contributions? See U.S. Public Interest Research Group (PIRG), The Lobbyist's Last Laugh: How K Street Lob-byists Would Benefit from the McCain-Feingold Cam-paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/democracy/democracy.asp?id2=5068. Is it an oversight, do you suppose, that the so-called "millionaire provisions" raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election "war chest"? See BCRA §§304, 316, and 319. And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? See A. Gierzynski & D.Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195-200 (J. Thompson & S.Moncrief eds. 1998). Was it unintended, by any chance, that incumbents are free personally to receive some soft money and even to solicit it for other organizations, while national parties are not? See new FECA §§323(a) and (e). </s> I wish to address three fallacious propositions that might be thought to justify some or all of the provisions of this legislation--only the last of which is explicitly embraced by the principal opinion for the Court, but all of which underlie, I think, its approach to these cases. (a) Money is Not Speech </s> It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g., Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O'Brien, 391 U.S. 367 (1968), or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). That proposition has been endorsed by one of the two authors of today's principal opinion: "The right to use one's own money to hire gladiators, [and] to fund 'speech by proxy,' ... [are] property rights . . . not entitled to the same protection as the right to say what one pleases." Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 399 (2000) (Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U.S., at 16, "this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment." Our traditional view was correct, and today's cavalier attitude toward regulating the financing of speech (the "exacting scrutiny" test of Buckley, see ibid., is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. See, e.g., Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 65, n.6 (1963) ("The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication..."). </s> Division of labor requires a means of mediating exchange, and in a commercial society, that means is supplied by money. The publisher pays the author for the right to sell his book; it pays its staff who print and assemble the book; it demands payments from booksellers who bring the book to market. This, too, presents opportunities for repression: Instead of regulating the various parties to the enterprise individually, the government can suppress their ability to coordinate by regulating their use of money. What good is the right to print books without a right to buy works from authors? Or the right to publish newspapers without the right to pay deliverymen? The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise. </s> This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore. </s> History and jurisprudence bear this out. The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each advertisement. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, "obvious[ly] ... designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism." F.Siebert, Freedom of the Press in England, 1476-1776, pp.309-310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id., at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was "by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions." A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764-1776, p.68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g., 1 D.Ramsay, History of the American Revolution 61-62 (L. Cohen ed. 1990); J.Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C.Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U.S. 233, 245-249 (1936); Schlesinger, supra, at 67-84. </s> We have kept faith with the Founders' tradition by prohibiting the selective taxation of the press. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983) (ink and paper tax); Grosjean, supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra, at 592. These press-taxation cases belie the claim that regulation of money used to fund speech is not regulation of speech itself. A tax on a newspaper's advertising revenue does not prohibit anyone from saying anything; it merely appropriates part of the revenue that a speaker would otherwise obtain. That is even a step short of totally prohibiting advertising revenue--which would be analogous to the total prohibition of certain campaign-speech contributions in the presentcases. Yet it is unquestionably a violation of the First Amendment. </s> Many other cases exemplify the same principle that an attack upon the funding of speech is an attack upon speech itself. In Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals' biographies for payment to the victims. And in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), we held unconstitutional a university's discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), holding that paid advertisements in a newspaper were entitled to full First Amendment protection: "Any other conclusion would discourage newspapers from carrying 'editorial advertisements' of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities--who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure 'the widest possible dissemination of information from diverse and antagonistic sources.'" Id., at 266 (citations omitted). </s> This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U.S., at 16-17. That reliance was appropriate. If denying protection to paid-for speech would "shackle the First Amendment," so also does forbidding or limiting the right to pay for speech. </s> It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer. (b) Pooling Money is Not Speech </s> Another proposition which could explain at least some of the results of today's opinion is that the First Amendment right to spend money for speech does not include the right to combine with others in spending money for speech. Such a proposition fits uncomfortably with the concluding words of our Declaration of Independence: "And for the support of this Declaration, . . . we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." (Emphasis added.) The freedom to associate with others for the dissemination of ideas--not just by singing or speaking in unison, but by pooling financial resources for expressive purposes--is part of the freedom of speech. "Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." NAACP v. Button, 371 U.S. 415, 431 (1963) (internal quotation marks omitted). </s> "The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460 (1958), stemmed from the Court's recognition that '[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.' Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee '"freedom to associate with others for the common advancement of political beliefs and ideas,"' ...." Buckley, supra, at 15. </s> We have said that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). That "right to associate . . . in pursuit" includes the right to pool financial resources. </s> If it were otherwise, Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnership or corporate form. That sort of restriction would be an obvious violation of the First Amendment, and it is incomprehensible why the conclusion should change when what is at issue is the pooling of funds for the most important (and most perennially threatened) category of speech: electoral speech. The principle that such financial association does not enjoy full First Amendment protection threatens the existence of all political parties. (c) Speech by Corporations Can Be Abridged </s> The last proposition that might explain at least some of today's casual abridgment of free-speech rights is this: that the particular form of association known as a corporation does not enjoy full First Amendment protection. Of course the text of the First Amendment does not limit its application in this fashion, even though "[b]y the end of the eighteenth century the corporation was a familiar figure in American economic life." C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations--and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978), we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said: "[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Id., at 776-777 (internal quotation marks, footnotes, and citations omitted). </s> In NAACP v. Button, supra, at 428-429, 431, we held that the NAACP could assert First Amendment rights "on its own behalf, . . . though a corporation," and that the activities of the corporation were "modes of expression and association protected by the First and Fourteenth Amendments." In Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 8 (1986), we held unconstitutional a state effort to compel corporate speech. "The identity of the speaker," we said, "is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster." And in Buckley, 424 U.S. 1, we held unconstitutional FECA's limitation upon independent corporate expenditures. </s> The Court changed course in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id., at 679, and remain of the view that it was error. In the modern world, giving the government power to exclude corporations from the political debate enables it effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views. People who associate--who pool their financial resources--for purposes of economic enterprise overwhelmingly do so in the corporate form; and with increasing frequency, incorporation is chosen by those who associate to defend and promote particular ideas--such as the American Civil Liberties Union and the National Rifle Association, parties to these cases. Imagine, then, a government that wished to suppress nuclear power--or oil and gas exploration, or automobile manufacturing, or gun ownership, or civil liberties--and that had the power to prohibit corporate advertising against its proposals. To be sure, the individuals involved in, or benefited by, those industries, or interested in those causes, could (given enough time) form political action committees or other associations to make their case. But the organizational form in which those enterprises already exist, and in which they can most quickly and most effectively get their message across, is the corporate form. The First Amendment does not in my view permit the restriction of that political speech. And the same holds true for corporate electoral speech: A candidate should not be insulated from the most effective speech that the major participants in the economy and major incorporated interest groups can generate. </s> But what about the danger to the political system posed by "amassed wealth"? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials--which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to "distort" elections--especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech. </s> But, it is argued, quite apart from its effect upon the electorate, corporate speech in the form of contributions to the candidate's campaign, or even in the form of independent expenditures supporting the candidate, engenders an obligation which is later paid in the form of greater access to the officeholder, or indeed in the form of votes on particular bills. Any quid-pro-quo agreement for votes would of course violate criminal law, see 18 U.S.C. §201, and actual payoff votes have not even been claimed by those favoring the restrictions on corporate speech. It cannot be denied, however, that corporate (like noncorporate) allies will have greater access to the officeholder, and that he will tend to favor the same causes as those who support him (which is usually why they supported him). That is the nature of politics--if not indeed human nature--and how this can properly be considered "corruption" (or "the appearance of corruption") with regard to corporate allies and not with regard to other allies is beyond me. If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so. It did not do so, I think, because the juice is not worth the squeeze. Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician's fear of being portrayed as "in the pocket" of so-called moneyed interests. The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain. That, at least, is the assumption of a constitutional guarantee which prescribes that Congress shall make no law abridging the freedom of speech. </s> But let us not be deceived. While the Government's briefs and arguments before this Court focused on the horrible "appearance of corruption," the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to "crack cocaine," 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), "drive-by shooting[s]," id., at S879 (remarks of Sen. Durbin), and "air pollution," 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, "I hope that we will not allow our attention to be distracted from the real issues at hand--how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don't aid our Nation's political dialog." Id., at 20521-20522 (remarks of Sen. McCain). He assured the body that "[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . ." 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g., 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) ("This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves"); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) ("These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal.... We have an opportunity in the McCain-Feingold bill to stop that . . ."); 145 Cong. Rec. S12606-S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) ("I think these issue advocacy ads are a nightmare. I think all of us should hate them.... [By passing the legislation], [w]e could get some of this poison politics off television"). </s> Another theme prominent in the legislative debates was the notion that there is too much money spent on elections. The first principle of "reform" was that "there should be less money in politics." 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). "The enormous amounts of special interest money that flood our political system have become a cancer in our democracy." 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). "[L]arge sums of money drown out the voice of the average voter." 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is "drowning in money." Id., at H404 (remarks of Rep. Menendez). And most expansively: "Despite the ever-increasing sums spent on campaigns, we have not seen an improvement in campaign discourse, issue discussion or voter education. More money does not mean more ideas, more substance or more depth. Instead, it means more of what voters complain about most. More 30-second spots, more negativity and an increasingly longer campaign period." 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry). </s> Perhaps voters do detest these 30-second spots--though I suspect they detest even more hour-long campaign-debate interruptions of their favorite entertainment programming. Evidently, however, these ads do persuade voters, or else they would not be so routinely used by sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of those who govern us to judge which campaign speech has "substance" and "depth" (do you think it might be that which is least damaging to incumbents?) and to abridge the rest. </s> And what exactly are these outrageous sums frittered away in determining who will govern us? A report prepared for Congress concluded that the total amount, in hard and soft money, spent on the 2000 federal elections was between $2.4 and $2.5 billion. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2-1 (D. Magleby ed. 2002), which was a year that "shattered spending and contribution records," id., at 22. Even taking this last, larger figure as the benchmark, it means that Americans spent about half as much electing all their Nation's officials, state and federal, as they spent on movie tickets ($7.8 billion); about a fifth as much as they spent on cosmetics and perfume ($18.8 billion); and about a sixth as much as they spenton pork (the nongovernmental sort) ($22.8 billion). See U.S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. If our democracy is drowning from this much spending, it cannot swim. * * * Which brings me back to where I began: This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce "fairer" campaigns, but to mute criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted for the Act believed they were acting for the good of the country. There remains the problem of the Charlie Wilson Phenomenon, named after Charles Wilson, former president of General Motors, who is supposed to have said during the Senate hearing on his nomination as Secretary of Defense that "what's good for General Motors is good for the country."** Those in power, even giving them the benefit of the greatest good will, are inclined to believe that what is good for them is good for the country. Whether in prescient recognition of the Charlie Wilson Phenomenon, or out of fear of good old-fashioned, malicious, self-interested manipulation, "[t]he fundamental approach of the First Amendment . . . was to assume the worst, and to rule the regulation of political speech 'for fairness' sake' simply out of bounds." Austin, 494 U.S., at 693 (Scalia, J., dissenting). Having abandoned that approach to a limited extent in Buckley, we abandon it much further today. </s> We will unquestionably be called upon to abandon it further still in the future. The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues: "This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system." 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold). </s> The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents' writing of the rules of political debate. The federal election campaign laws, which are already (as today's opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come--and always, always, with the objective of reducing the excessive amount of speech. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1674v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIFLE ASSOCIATION, etal., APPELLANTS </s> 02-1675v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> FEDERAL ELECTION COMMISSION, etal., APPELLANTS </s> 02-1676v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> JOHN McCAIN, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1702v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> REPUBLICAN NATIONAL COMMITTEE, etal., APPELLANTS </s> 02-1727v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIGHT TO LIFE COMMITTEE, INC., etal., APPELLANTS </s> 02-1733v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN CIVIL LIBERTIES UNION, APPELLANTS </s> 02-1734v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> VICTORIA JACKSON GRAY ADAMS, etal., APPELLANTS </s> 02-1740v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> RON PAUL, UNITED STATES CONGRESSMAN, etal., APPELLANTS </s> 02-1747v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CALIFORNIA DEMOCRATIC PARTY, etal., APPELLANTS </s> 02-1753v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, etal., APPELLANTS </s> 02-1755v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CHAMBER OF COMMERCE OF THE UNITED STATES, etal., APPELLANTS </s> 02-1756v. </s> FEDERAL ELECTION COMMISSION, etal. on appeals from the united states district court for the district of columbia [December 10, 2003] </s> Justice Thomas, concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311.** </s> The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." Nevertheless, the Court today upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War. With breathtaking scope, the Bipartisan Campaign Reform Act of 2002 (BCRA), directly targets and constricts core political speech, the "primary object of First Amendment protection." Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 410-411 (2000) (Thomas, J., dissenting). Because "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office," Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)), our duty is to approach these restrictions "with the utmost skepticism" and subject them to the "strictest scrutiny." Shrink Missouri, supra, at 412 (Thomas, J., dissenting). </s> In response to this assault on the free exchange of ideas and with only the slightest consideration of the appropriate standard of review or of the Court's traditional role of protecting First Amendment freedoms, the Court has placed its imprimatur on these unprecedented restrictions. The very "purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). Yet today the fundamental principle that "the best test of truth is the power of the thought to get itself accepted in the competition of the market," Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), is cast aside in the purported service of preventing "corruption," or the mere "appearance of corruption." Buckley v. Valeo, 424 U.S. 1, 26 (1976) (per curiam). Apparently, the marketplace of ideas is to be fully open only to defamers, New York Times Co. v. Sullivan, 376 U.S. 254 (1964); nude dancers, Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (plurality opinion); pornographers, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); flag burners, United States v. Eichman, 496 U.S. 310 (1990); and cross burners, Virginia v. Black, 538 U.S. ___ (2003). </s> Because I cannot agree with the treatment given by Justice Stevens' and Justice O'Connor's opinion (hereinafter joint opinion) to speech that is "indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society," Thornhill v. Alabama, 310 U.S. 88, 103 (1940), I respectfully dissent. I also dissent from Justice Breyer's opinion upholding BCRA §504. I join The Chief Justice's opinion in regards to BCRA §§304, 305, 307, 316, 319, and 403(b); concur in the result as to §318; and dissent from the opinion as to §311. I also fully agree with Justice Kennedy's discussion of §213 and join that portion of his opinion. Post, at 37-38. I A </s> "[C]ampaign finance laws are subject to strict scrutiny," Federal Election Comm'n v. Beaumont, 539 U.S. ___, ___ (2003) (slip op., at 1) (Thomas, J., dissenting), and thus Title I must satisfy that demanding standard even if it were (incorrectly) conceived of as nothing more than a contribution limitation. The defendants do not even attempt to defend Title I under this standard, and for good reason: The various restrictions imposed by Title I are much less narrowly tailored to target only corrupting or problematic donations than even the contribution limits in Shrink Missouri. See 518 U.S. 604, 641-644 (1996) (Thomas, J., dissenting) (Colorado I). And, as I have previously noted, it is unclear why "[b]ribery laws [that] bar precisely the quid pro quo arrangements that are targeted here" and "disclosure laws" are not "less restrictive means of addressing [the Government's] interest in curtailing corruption." Shrink Missouri, supra, at 428. The joint opinion not only continues the errors of Buckley v. Valeo, by applying a low level of scrutiny to contribution ceilings, but also builds upon these errors by expanding the anticircumvention rationale beyond reason. Admittedly, exploitation of an anticircumvention concept has a long pedigree, going back at least to Buckley itself. Buckley upheld a $1,000 contribution ceiling as a way to combat both the "actuality and appearance of corruption." 424 U.S., at 26. The challengers in Buckley contended both that bribery laws represented "a less restrictive means of dealing with 'proven and suspected quid pro quo arrangements,'" id., at 27, and that the $1,000 contribution ceiling was overbroad as "most large contributors do not seek improper influence over a candidate's position or an officeholder's action," id., at 29. The Court rejected the first argument on the grounds that "laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action," id., at 27-28, and rejected the second on the grounds that "it [is] difficult to isolate suspect contributions," id., at 30.1 But a broadly drawn bribery law2 would cover even subtle and general attempts to influence government officials corruptly, eliminating the Court's first concern. And, an effective bribery law would deter actual quid pro quos and would, in all likelihood, eliminate any appearance of corruption in the system. </s> Hence, at root, the Buckley Court was concerned that bribery laws could not be effectively enforced to prevent quid pro quos between donors and officeholders, and the only rational reading of Buckley is that it approved the $1,000 contribution ceiling on this ground. The Court then, however, having at least in part concluded that individual contribution ceilings were necessary to prevent easy evasion of bribery laws, proceeded to uphold a separate contribution limitation, using, as the only justification, the "prevent[ion] [of] evasion of the $1,000 contribution limitation." Id., at 38. The need to prevent circumvention of a limitation that was itself an anticircumvention measure led to the upholding of another significant restriction on individuals' freedom of speech. </s> The joint opinion now repeats this process. New Federal Election Campaign Act of 1971 (FECA) §323(a), 2 U.S.C.A. §441i(a) (Supp. 2003), is intended to prevent easy circumvention of the (now) $2,000 contribution ceiling. The joint opinion even recognizes this, relying heavily on evidence that, for instance, "candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries." Ante, at 36. The joint opinion upholds §323(a), in part, on the grounds that it had become too easy to circumvent the $2,000 cap by using the national parties as go-betweens. </s> And the remaining provisions of new FECA §323 are upheld mostly as measures preventing circumvention of other contribution limits, including §323(a), ante, at 55-57 (§323(b)); ante, at 66-69 (§323(d)); ante, at 75 (§323(e)); ante, at 77-78 (§323(f)), which, as I have already explained, is a second-order anticircumvention measure. The joint opinion's handling of §323(f) is perhaps most telling, as it upholds §323(f) only because of "Congress' eminently reasonable prediction that ... state and local candidates and officeholders will become the next conduits for the soft-money funding of sham issue advertising." Ante, at 78 (emphasis added). That is, this Court upholds a third-order anticircumvention measure based on Congress' anticipation of circumvention of these second-order anticircumvention measures that might possibly, at some point in the future, pose some problem. </s> It is not difficult to see where this leads. Every law has limits, and there will always be behavior not covered by the law but at its edges; behavior easily characterized as "circumventing" the law's prohibition. Hence, speech regulation will again expand to cover new forms of "circumvention," only to spur supposed circumvention of the new regulations, and so forth. Rather than permit this never-ending and self-justifying process, I would require that the Government explain why proposed speech restrictions are needed in light of actual Government interests, and, in particular, why the bribery laws are not sufficient. B </s> But Title I falls even on the joint opinion's terms. This Court has held that "[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised." Shrink Missouri, 528 U.S., at 391. And three Members of today's majority have observed that "the opportunity for corruption" presented by "[u]nregulated 'soft money' contributions" is "at best, attenuated." Colorado I, 518 U.S., at 616 (opinion of Breyer, J., joined by O'Connor and Souter, JJ.). Such an observation is quite clearly correct. A donation to a political party is a clumsy method by which to influence a candidate, as the party is free to spend the donation however it sees fit, and could easily spend the money as to provide no help to the candidate. And, a soft-money donation to a party will be of even less benefit to a candidate, "because of legal restrictions on how the money may be spent." Brief for FEC etal. in No. 02-1674 etal., p.43. It follows that the defendants bear an especially heavy empirical burden in justifying Title I. The evidence cited by the joint opinion does not meet this standard and would barely suffice for anything more than rational-basis review. The first category of the joint opinion's evidence is evidence that "federal officeholders have commonly asked donors to make soft-money donations to national and state committees solely in order to assist federal campaigns, including the officeholder's own." Ante, at 36 (internal quotation marks omitted). But to the extent that donors and federal officeholders have collaborated so that donors could give donations to a national party committee "for the purpose of influencing any election for Federal office," the alleged soft-money donation is in actuality a regular "contribution" as already defined and regulated by FECA. See 2 U.S.C. §431(8)(A)(i). Neither the joint opinion nor the defendants present evidence that enforcement of pre-BCRA law has proved to be impossible, ineffective, or even particularly difficult. </s> The second category is evidence that "lobbyists, CEOs, and wealthy individuals" have "donat[ed] substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials." Ante, at 37. Even if true (and the cited evidence consists of nothing more than vague allegations of wrongdoing), it is unclear why existing bribery laws could not address this problem. Again, neither the joint opinion nor the defendants point to evidence that the enforcement of bribery laws has been or would be ineffective. If the problem has been clear and widespread, as the joint opinion suggests, I would expect that convictions, or at least prosecutions, would be more frequent. </s> The third category is evidence characterized by the joint opinion as "connect[ing] soft money to manipulations of the legislative calendar, leading to Congress' failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation." Ante, at 40. But the evidence for this is no stronger than the evidence that there has been actual vote buying or vote switching for soft money. The joint opinion's citations to the record do not stand for the propositions that they claim. For instance, the McCain declaration does not provide any evidence of any exchange of legislative action for donations of any kind (hard or soft).3 Neither do the Simpson or Simon declarations, with perhaps one exception effectively addressed by Justice Kennedy's opinion.4 See post, at 18-19. In fact, the findings by two of the District Court's judges confirm that the evidence of any quid pro quo corruption is exceedingly weak, if not nonexistent. See 251 F.Supp. 2d 176, 349-352 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part); id., at 851-853 (Leon, J.). The evidence cited by the joint opinion is properly described as "at best, [the Members of Congress'] personal conjecture regarding the impact of soft money donations on the voting practices of their present and former colleagues." Id., at 852 (Leon, J.). </s> The joint opinion also places a substantial amount of weight on the fact that "in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties," and suggests that this fact "leav[es] room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology." Ante, at 38 (emphasis in original). But that is not necessarily the case. The two major parties are not perfect ideological opposites, and supporters or opponents of certain policies or ideas might find substantial overlap between the two parties. If donors feel that both major parties are in general agreement over an issue of importance to them, it is unremarkable that such donors show support for both parties. This commonsense explanation surely belies the joint opinion's too-hasty conclusion drawn from a relatively innocent fact. </s> The Court today finds such sparse evidence sufficient. This cannot be held to satisfy even the "relatively complaisant review" of Beaumont, 539 U.S., at ___ (slip op., at 14), unless, as it appears, the Court intends to abdicate entirely its role.5 II </s> The Court is not content with "balanc[ing] away First Amendment freedoms," Shrink Missouri, 393 U.S. 23, 32 (1968)). Today's holding continues a disturbing trend: the steady decrease in the level of scrutiny applied to restrictions on core political speech. See Buckley, supra, at 16 (First Amendment requires "exacting scrutiny"); Shrink Missouri, supra, at 387 (applying "Buckley's standard of scrutiny"); Beaumont, supra, at ___ (slip op., at 14) (referencing "relatively complaisant review").6 Although this trend is most obvious in the review of contribution limits, it has now reached what even this Court today would presumably recognize as a direct restriction on core political speech: limitations on independent expenditures. A </s> Of course, by accepting Congress' expansion of what constitutes "coordination" for purposes of treating expenditures as limitations, the Court can pretend that it is, in fact, still only restricting primarily "contributions." I need not say much about this illusion. I have already discussed how the language used in new FECA §315(a)(7)(B)(ii) is, even under Buckley's framework, overly broad and restricts fully protected speech. See Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 467-468 (2001) (Thomas, J., dissenting) (Colorado II). The particular language used, "expenditures made by any person ... in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party," BCRA §214(a)(2), captures expenditures with "no constitutional difference" from "a purely independent one." Id., at 468 (Thomas, J., dissenting).7 And new FECA §315(a)(7)(C), although using the neutral term "coordinated," certainly has the purpose of "clarif[ying] the scope of the preceding subsection, §315(a)(7)(B)," ante, at 95 (joint opinion), and thus should be read to be as expansive as the overly broad language in §315(a)(7)(B). Hence, it too is unconstitutional. B </s> As for §§203 and 204, the Court rests its decision on another vast expansion of the First Amendment framework described in Buckley, this time of the Court's, rather than Congress', own making. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659-660 (1990), the Court recognized a "different type of corruption" from the "'financial quid pro quo'": the "corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." The only effect, however, that the "immense aggregations" of wealth will have (in the context of independent expenditures) on an election is that they might be used to fund communications to convince voters to select certain candidates over others. In other words, the "corrosive and distorting effects" described in Austin are that corporations, on behalf of their shareholders, will be able to convince voters of the correctness of their ideas. Apparently, winning in the marketplace of ideas is no longer a sign that "the ultimate good" has been "reached by free trade in ideas," or that the speaker has survived "the best test of truth" by having "the thought ... get itself accepted in the competition of the market." Abrams, 435 U.S. 765, 790 (1978) ("[T]he fact that advocacy may persuade the electorate is hardly a reason to suppress it"); Kingsley Int'l Pictures Corp. v. Regents of Univ. of N. Y., 360 U.S. 684, 689 (1959) ("[I]n the realm of ideas [the Constitution] protects expression which is eloquent no less than that which is unconvincing"). Because Austin's definition of "corruption" is incompatible with the First Amendment, I would overturn Austin and hold that the potential for corporations and unions to influence voters, via independent expenditures aimed at convincing these voters to adopt particular views, is not a form of corruption justifying any state regulation or suppression. Without Austin's peculiar variation of "corruption," §§203 and 204 are supported by no compelling government interest. The joint opinion does not even argue that these provisions address quid pro quo corruption.8 And the shareholder protection rationale is equally unavailing. The "shareholder invests in a corporation of his own volition and is free to withdraw his investment at any time and for any reason," Bellotti, supra, at 794, n.34. Hence, no compelling interest can be found in protecting minority shareholders from the corporation's use of its general treasury, especially where, in other contexts, "equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders." Ibid. C </s> I must now address an issue on which I differ from all of my colleagues: the disclosure provisions in BCRA §201, now contained in new FECA §304(f). The "historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the 'freedom of the press.'" McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 361 (1995) (Thomas, J., concurring).9 Indeed, this Court has explicitly recognized that "the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry," and thus that "an author's decision to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment." Id., at 342. The Court now backs away from this principle, allowing the established right to anonymous speech to be stripped away based on the flimsiest of justifications. The only plausible interest asserted by the defendants to justify the disclosure provisions is the interest in providing "information" about the speaker to the public. But we have already held that "[t]he simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit." Id., at 348. Of course, Buckley upheld the disclosure requirement on expenditures for communications using words of express advocacy based on this informational interest. 424 U.S., at 81. And admittedly, McIntyre purported to distinguish Buckley. McIntyre, supra, at 355-356. But the two ways McIntyre distinguished Buckley--one, that the disclosure of "an expenditure and its use, without more, reveals far less information [than a forced identification of the author of a pamphlet,]" 514 U.S., at 355; and two, that in candidate elections, the "Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures," id., at 356--are inherently implausible. The first is simply wrong. The revelation of one's political expenditures for independent communications about candidates can be just as revealing as the revelation of one's name on a pamphlet for a noncandidate election. See also id., at 384 (Scalia, J., dissenting). The second was outright rejected in Buckley itself, where the Court concluded that independent expenditures did not create any substantial risk of real or apparent corruption. 424 U.S., at 47. Hence, the only reading of McIntyre that remains consistent with the principles it contains is that it overturned Buckley to the extent that Buckley upheld a disclosure requirement solely based on the governmental interest in providing information to the voters. </s> The right to anonymous speech cannot be abridged based on the interests asserted by the defendants. I would thus hold that the disclosure requirements of BCRA §201 are unconstitutional. Because of this conclusion, the so-called advance disclosure requirement of §201 necessarily falls as well.10 D </s> I have long maintained that Buckley was incorrectly decided and should be overturned. See Colorado II, 479 U.S. 238 (1986) (MCFL), it is, or at least was, clear that any regulation of political speech beyond communications using words of express advocacy is unconstitutional. Hence, even under the joint opinion's framework, most of Title II is unconstitutional, as both the "primary definition" and "backup definition" of "electioneering communications" cover a significant number of communications that do not use words of express advocacy. 2 U.S.C.A. §434(f)(3)(A) (Supp. 2003).11 In Buckley, the Court was presented with the ambiguous language "'any expenditure ... relative to a clearly identified candidate.'" 424 U.S., at 41. The Court noted that the "use of so indefinite a phrase as 'relative to' a candidate fails to clearly mark the boundary between permissible and impermissible speech." Ibid. Hence, the Court read the phrase to mean "advocating the election or defeat of a candidate." Id., at 42 (internal quotation marks omitted). But this construction did not complete the vagueness inquiry. As the Court observed: "[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest." Ibid. </s> The Court then recognized that the constitutional issues raised by the provision "can be avoided only by reading §608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate." Id., at 43. </s> The joint opinion argues that Buckley adopted this narrow reading only to avoid addressing a constitutional question. "[T]he concept of express advocacy and the concomitant class of magic words were born of an effort to avoid constitutional infirmities," concludes the joint opinion after examining the language of Buckley. Ante, at 85. This ignores the fact that the Court then struck down the expenditure limitation precisely because it was too narrow: "The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation's effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or officeholder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office." 424 U.S., at 45. </s> Far from saving the provision from constitutional doubt, the Court read the provision in such a way as to guarantee its unconstitutionality. If there were some possibility that regulation of communications without words of express advocacy were constitutional, the provision would have to have been read to include these communications, and the constitutional question addressed head on.12 Indeed, the exceedingly narrow reading of the relevant language in Buckley is far from mandated by the text; it is, in fact, a highly strained reading. "'[A]ny expenditure ... relative to a clearly identified candidate,'" id., at 41, would be better read to cover, for instance, any expenditure for an advertisement aired close to an election that is "intended to influence the voters' decisions and ha[s] that effect," a standard apparently endorsed by the joint opinion as being sufficiently "equivalent" to express advocacy to justify its regulation. Ante, at 99-100. By deliberately adopting a strained and narrow reading of the statutory text and then striking down the provision in question for being too narrow, the Court made clear that regulation of nonexpress advocacy was strictly forbidden. </s> This reading is confirmed by other portions of Buckley and by other cases. For instance, in limiting FECA's disclosure provisions to expenditures involving express advocacy, the Court noted that it gave such a narrowing interpretation "[t]o insure that the reach of [the disclosure provision] is not impermissibly broad." 424 U.S., at 80 (emphasis added). If overbreadth were a concern in limiting the scope of a disclosure provision, it surely was equally a concern in the limitation of an actual cap on expenditures. And, in MCFL, the Court arguably eliminated any ambiguity remaining in Buckley when it explicitly stated that the narrowing interpretations taken in Buckley were necessary "in order to avoid problems of overbreadth." MCFL, 479 U.S., at 248. The joint opinion's attempt to explain away MCFL's uncomfortable language is unpersuasive. The joint opinion emphasizes that the MCFL Court "held that a 'similar construction' must apply to the expenditure limitation," as if that somehow proved its point. Ante, at 85, n.76 (emphasis in original). The fact that the MCFL Court said this does not establish anything, of course; adopting a narrow construction of a statute "in order to avoid problems of overbreadth," 479 U.S., at 248, is perfectly consistent with a holding that, lacking the narrowing construction, the statute would be overly broad, i.e., unconstitutional. </s> The defendants' principal argument in response is that "it would be bizarre to conclude that the Constitution permits Congress to prohibit the use of corporate or union general treasury funds for electioneering advertisements, but that the only standard that it can constitutionally use (express advocacy) is one that misses the vast majority (88.6 percent) of advertisements that candidates themselves use for electioneering." Brief for FEC etal. in No. 02-1674 etal., p.103 (emphasis in original). </s> The joint opinion echoes this, stating that the express advocacy line "cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad." Ante, at 86. First, the presence of the "magic words" does differentiate in a meaningful way between categories of speech. Speech containing the "magic words" is "unambiguously campaign related," Buckley, supra, at 81, while speech without these words is not. Second, it is far from bizarre to suggest that (potentially regulable) speech that is in practice impossible to differentiate from fully protected speech must be fully protected. It is, rather, part and parcel of First Amendment first principles. See, e.g., Free Speech Coalition, 343 U.S. 495, 501 (1952); Winters v. New York, 333 U.S. 507, 510 (1948) (rejecting suggestion that "the constitutional protection for a free press applies only to the exposition of ideas" as the "line between the informing and the entertaining is too elusive for the protection of that basic right," noting that "[w]hat is one man's amusement, teaches another's doctrine"). This principle clearly played a significant role in Buckley itself, see 424 U.S., at 42 (after noting that "the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application," holding that the "express advocacy" standard must be adopted as the interpretation of the relevant language in FECA). The express-advocacy line was drawn to ensure the protection of the "discussion of issues and candidates," not out of some strange obsession of the Court to create meaningless lines. And the joint opinion misses the point when it notes that "Buckley's express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption." Ante, at 86-87. Buckley did not draw this line solely to aid in combating real or apparent corruption, but rather also to ensure the protection of speech unrelated to election campaigns.13 </s> Nor is this to say that speech with words of express advocacy is somehow less protected, as the joint opinion claims. Ante, at 99. The Court in Buckley recognized an informational interest that justified the imposition of a disclosure requirement on campaign-related speech. See 424 U.S., at 81. This interest is not implicated with regard to speech that is unrelated to an election campaign. Hence, it would be unconstitutional to impose such a disclosure requirement on non-election-related speech. And, as "the distinction between discussion of issues and candidates ... may often dissolve in practical application," id., at 42, the only way to prevent the unjustified burdening of nonelection speech is to impose the regulation only on speech that is "unambiguously campaign related," id., at 81, i.e., speech using words of express advocacy. Hence, speech that uses words of express advocacy is protected under the same standard, strict scrutiny, as all other forms of speech. The only difference is that, under Buckley, there is a governmental interest supporting some regulation of those using words of express advocacy not present in other forms of speech. * * * </s> The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press. "This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from [nonmedia] corporations." Bellotti, 435 U.S., at 796 (Burger, C.J., concurring). Media companies can run procandidate editorials as easily as nonmedia corporations can pay for advertisements. Candidates can be just as grateful to media companies as they can be to corporations and unions. In terms of "the corrosive and distorting effects" of wealth accumulated by corporations that has "little or no correlation to the public's support for the corporation's political ideas," Austin, 494 U.S., at 660, there is no distinction between a media corporation and a nonmedia corporation.14 Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of Presidential candidates will actually influence people. What is to stop a future Congress from determining that the press is "too influential," and that the "appearance of corruption" is significant when media organizations endorse candidates or run "slanted" or "biased" news stories in favor of candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy "circumvention" of the limitations of the current campaign finance laws?15 Indeed, I believe that longstanding and heretofore unchallenged opinions such as Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), are in peril. There, the Court noted that "[c]hains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events." Id., at 249. Despite expressing some sympathy for those arguing for a legally created "right of access" to encourage diversity in viewpoints in the media, the Court struck down such laws, noting that these laws acted both to suppress speech and to "intru[de] into the function of editors" by interfering with "the exercise of editorial control and judgment." Id., at 257-258. Now, supporters of such laws need only argue that the press' "capacity to manipulate popular opinion" gives rise to an "appearance of corruption," especially when this capacity is used to promote a particular candidate or party. After drumming up some evidence,16 laws regulating media outlets in their issuance of editorials would be upheld under the joint opinion's reasoning (a result considered so beyond the pale in Miami Herald Publishing that the Court there used it as a reductio ad absurdum against the right-of-access law being addressed, see id., at 256). Nor is there anything in the joint opinion that would prevent Congress from imposing the Fairness Doctrine, not just on radio and television broadcasters, but on the entire media. See Red Lion Broadcasting, 395 U.S., at 369 (defining the "fairness doctrine" as a "requirement that discussion of public issues be presented ... and that each side of those issues must be given fair coverage"). </s> Hence, "the freedom of the press," described as "one of the greatest bulwarks of liberty," 1 J. Elliot, Debates on the Federal Constitution 335 (___ ed. 1876) (declaration of Rhode Island upon the ratification of the Constitution),17 could be next on the chopping block. Although today's opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the Court's reasoning in that setting. The press now operates at the whim of Congress. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1674v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIFLE ASSOCIATION, etal., APPELLANTS </s> 02-1675v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> FEDERAL ELECTION COMMISSION, etal., APPELLANTS </s> 02-1676v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> JOHN McCAIN, UNITED STATES SENATOR, etal., APPELLANTS </s> 02-1702v. </s> MITCH McCONNELL, UNITED STATES SENATOR, etal.; </s> REPUBLICAN NATIONAL COMMITTEE, etal., APPELLANTS </s> 02-1727v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> NATIONAL RIGHT TO LIFE COMMITTEE, INC., etal., APPELLANTS </s> 02-1733v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN CIVIL LIBERTIES UNION, APPELLANTS </s> 02-1734v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> VICTORIA JACKSON GRAY ADAMS, etal., APPELLANTS </s> 02-1740v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> RON PAUL, UNITED STATES CONGRESSMAN, etal., APPELLANTS </s> 02-1747v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CALIFORNIA DEMOCRATIC PARTY, etal., APPELLANTS </s> 02-1753v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, etal., APPELLANTS </s> 02-1755v. </s> FEDERAL ELECTION COMMISSION, etal.; </s> CHAMBER OF COMMERCE OF THE UNITED STATES, etal., APPELLANTS </s> 02-1756v. </s> FEDERAL ELECTION COMMISSION, etal. on appeals from the united states district court for the district of columbia [December 10, 2003] </s> Justice Kennedy, concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II.** </s> The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers. Significant portions of Titles I and II of the Bipartisan Campaign Reform Act of 2002 (BCRA or Act) constrain that freedom. These new laws force speakers to abandon their own preference for speaking through parties and organizations. And they provide safe harbor to the mainstream press, suggesting that the corporate media alone suffice to alleviate the burdens the Act places on the rights and freedoms of ordinary citizens. </s> Today's decision upholding these laws purports simply to follow Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and to abide by stare decisis, see ante, at 27 (joint opinion of Stevens and O'Connor, JJ. (hereinafter Court or majority)); but the majority, to make its decision work, must abridge free speech where Buckley did not. Buckley did not authorize Congress to decide what shapes and forms the national political dialogue is to take. To reach today's decision, the Court surpasses Buckley's limits and expands Congress' regulatory power. In so doing, it replaces discrete and respected First Amendment principles with new, amorphous, and unsound rules, rules which dismantle basic protections for speech. </s> A few examples show how BCRA reorders speech rights and codifies the Government's own preferences for certain speakers. BCRA would have imposed felony punishment on Ross Perot's 1996 efforts to build the Reform Party. Compare Federal Election Campaign Act of 1971 (FECA) §§309(d)(1)(A), 315(a)(1)(B), and 323(a)(1) (prohibiting, by up to five years' imprisonment, any individual from giving over $25,000 annually to a national party), with Spending By Perot, The Houston Chronicle, Dec. 13, 1996, p.43 (reporting Perot's $8 million founding contribution to the Reform Party). BCRA makes it a felony for an environmental group to broadcast an ad, within 60 days of an election, exhorting the public to protest a Congressman's impending vote to permit logging in national forests. See BCRA §203. BCRA escalates Congress' discrimination in favor of the speech rights of giant media corporations and against the speech rights of other corporations, both profit and nonprofit. Compare BCRA §203, with Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659-660 (1990) (first sanctioning this type of discrimination). </s> To the majority, all this is not only valid under the First Amendment but also is part of Congress' "steady improvement of the national election laws." Ante, at 6. We should make no mistake. It is neither. It is the codification of an assumption that the mainstream media alone can protect freedom of speech. It is an effort by Congress to ensure that civic discourse takes place only through the modes of its choosing. And BCRA is only the beginning, as its congressional proponents freely admit: "This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system." 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold). </s> Id., at S2097 (statement of Sen. Wellstone) ("[P]assing this legislation ... will whet people's appetite for more"); id.,at S2101 (statement of Sen. Boxer) ("[T]his bill is notthe be-all or the end-all, but it is a strong start"); id., at S2152 (statement of Sen. Corzine) ("[T]his should not and will not be the last time campaign finance reform is debated on the Senate floor. We have many more important campaign finance issues to explore"); id., at S2157 (statement of Sen. Torricelli) ("Make [BCRA] the beginning of a reform, not the end of reform"); id., at H442 (Feb. 13, 2002) (statement of Rep. Doggett) ("Mr. Chairman, if [BCRA] has any defect, it is that it does too little, not too much"). </s> Our precedents teach, above all, that Government cannot be trusted to moderate its own rules for suppression of speech. The dangers posed by speech regulations have led the Court to insist upon principled constitutional lines and a rigorous standard of review. The majority now abandons these distinctions and limitations. </s> With respect, I dissent from the majority opinion upholding BCRA Titles I and II. I concur in the judgment as to BCRA §213 and new FECA §323(e) and concur in the judgment in part and dissent in part as to BCRA §§201, 202, and 214. I. TITLE I AND COORDINATION PROVISIONS </s> Title I principally bans the solicitation, receipt, transfer and spending of soft money by the national parties (new FECA §323(a), 2 U.S.C.A. §441i(a) (Supp. 2003)). It also bans certain uses of soft money by state parties (new FECA §323(b)); the transfer of soft money from national parties to nonprofit groups (new FECA §323(d)); the solicitation, receipt, transfer, and spending of soft money by federal candidates and officeholders (new FECA §323(e)); and certain uses of soft money by state candidates (new FECA §323(f)). These provisions, and the other provisions with which this opinion is principally concerned, are set out in full, see Appendix, infra. Even a cursory review of the speech and association burdens these laws create makes their First Amendment infirmities obvious: Title I bars individuals with shared beliefs from pooling their money above limits set by Congress to form a new third party. See new FECA §323(a). </s> Title I bars national party officials from soliciting or directing soft money to state parties for use on a state ballot initiative. This is true even if no federal office appears on the same ballot as the state initiative. See new FECA §323(a). </s> A national party's mere involvement in the strategic planning of fundraising for a state ballot initiative risks a determination that the national party is exercising "indirect control" of the state party. If that determination is made, the state party must abide by federal regulations. And this is so even if the federal candidate on the ballot, if there is one, runs unopposed or is so certain of election that the only voter interest is in the state and local campaigns. See new FECA §323(a). </s> Title I compels speech. Party officials who want to engage in activity such as fundraising must now speak magic words to ensure the solicitation cannot be interpreted as anything other than a solicitation for hard, not soft, money. See ibid. </s> Title I prohibits the national parties from giving any sort of funds to nonprofit entities, even federally regulated hard money, and even if the party hoped to sponsor the interest group's exploration of a particular issue in advance of the party's addition of it to their platform. See new FECA §323(d). </s> By express terms, Title I imposes multiple different forms of spending caps on parties, candidates, and their agents. See new FECA §§323(a), (e), and (f). </s> Title I allows state parties to raise quasi-soft money Levin funds for use in activities that might affect a federal election; but the Act prohibits national parties from assisting state parties in developing and executing these fundraising plans, even when the parties seek only to advance state election interests. See new FECA §323(b). </s> Until today's consolidated cases, the Court has accepted but two principles to use in determining the validity of campaign finance restrictions. First is the anticorruption rationale. The principal concern, of course, is the agreement for a quid pro quo between officeholders (or candidates) and those who would seek to influence them. The Court has said the interest in preventing corruption allows limitations on receipt of the quid by a candidate or officeholder, regardless of who gives it or of the intent of the donor or officeholder. See Buckley, 459 U.S. 197, 201-211 (1982). </s> The majority today opens with rhetoric that suggests a conflation of the anticorruption rationale with the corporate speech rationale. See ante, at 3-6 (hearkening back to, among others, Elihu Root and his advocacy against the use of corporate funds in political campaigning). The conflation appears designed to cast the speech regulated here as unseemly corporate speech. The effort, however, is unwarranted, and not just because money is not per se the evil the majority thinks. Most of the regulations at issue, notably all of the Title I soft money bans and the Title II coordination provisions, do not draw distinctions based on corporate or union status. Referring to the corporate speech rationale as if it were the linchpin of the case, when corporate speech is not primarily at issue, adds no force to the Court's analysis. Instead, the focus must be on Buckley's anticorruption rationale and the First Amendment rights of individual citizens. A. Constitutionally Sufficient Interest </s> In Buckley, the Court held that one, and only one, interest justified the significant burden on the right of association involved there: eliminating, or preventing, actual corruption or the appearance of corruption stemming from contributions to candidates. "It is unnecessary to look beyond the Act's primary purpose--to limit the actuality and appearance of corruption resulting from large individual financial contributions--in order to find a constitutionally sufficient justification for the $1,000 contribution limitation." 424 U.S., at 26. </s> See also ibid. (concluding this corruption interest was sufficiently "significant" to sustain "closely drawn" interference with protected First Amendment rights). </s> In parallel, Buckley concluded the expenditure limitations in question were invalid because they did not advance that same interest. See id., at 47-48 ("[T]he independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process"); see also id., at 45, 46. </s> Thus, though Buckley subjected expenditure limits to strict scrutiny and contribution limits to less exacting review, it held neither could withstand constitutional challenge unless it was shown to advance the anticorruption interest. In these consolidated cases, unless Buckley is to be repudiated, we must conclude that the regulations further that interest before considering whether they are closely drawn or narrowly tailored. If the interest is not advanced, the regulations cannot comport with the Constitution, quite apart from the standard of review. </s> Buckley made clear, by its express language and its context, that the corruption interest only justifies regulating candidates' and officeholders' receipt of what we can call the "quids" in the quid pro quo formulation. The Court rested its decision on the principle that campaign finance regulation that restricts speech without requiring proof of particular corrupt action withstands constitutional challenge only if it regulates conduct posing a demonstrable quid pro quo danger: "To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined." Id., at 26-27. </s> See also id., at 45 ("[A]ssuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions ..."). That Buckley rested its decision on this quid pro quo standard is not a novel observation. We have held this was the case: "The exception [of contribution limits being justified under the First Amendment] relates to the perception of undue influence of large contributions to a candidate: 'To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.'" Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 297 (1981) (quoting Buckley, supra, at 26-27). See also Federal Election Comm'n v. Beaumont, 539 U.S. ___ (2003) (furthering this anticorruption rationaleby upholding limits on contributions given directly to candidates); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (same). </s> Despite the Court's attempt to rely on language from cases like Shrink Missouri to establish that the standard defining corruption is broader than conduct that presents a quid pro quo danger, see ante, at 43, n. 48, in those cases the Court in fact upheld limits on conduct possessing quid pro quo dangers, and nothing more. See also infra, 12. For example, the Shrink Missouri Court's distinguishing of what was at issue there and quid pro quo, in fact, shows only that it used the term quid pro quo to refer to actual corrupt, vote-buying exchanges, as opposed to interactions that possessed quid pro quo potential even if innocently undertaken. Thus, the Court said: "[W]e spoke in Buckley of the perception of corruption 'inherent in a regime of large individual financial contributions' to candidates for public office . . . as a source of concern "almost equal" to quid pro quo improbity." 528 U.S., at 390 (citations omitted). </s> Thus, the perception of corruption that the majority now asserts is somehow different from the quid pro quo potential discussed in this opinion, was created by an exchange featuring quid pro quo potential--contributions directly to a candidate. </s> In determining whether conduct poses a quid pro quo danger the analysis is functional. In Buckley, the Court confronted an expenditure limitation provision that capped the amount of money individuals could spend on any activity intended to influence a federal election (i.e., it reached to both independent and coordinated expenditures). See 424 U.S., at 46-47. The Court concluded that though the limitation reached both coordinated and independent expenditures, there were other valid FECA provisions that barred coordinated expenditures. Hence, the limit at issue only added regulation to independent expenditures. On that basis it concluded the provision was unsupported by any valid corruption interest. The conduct to which it added regulation (independent expenditures) posed no quid pro quo danger. See ibid. </s> Placing Buckley's anticorruption rationale in the context of the federal legislative power yields the following rule: Congress' interest in preventing corruption provides a basis for regulating federal candidates' and officeholders' receipt of quids, whether or not the candidate or officeholder corruptly received them. Conversely, the rule requires the Court to strike down campaign finance regulations when they do not add regulation to "actual or apparent quid pro quo arrangements." Id., at 45. </s> The Court ignores these constitutional bounds and in effect interprets the anticorruption rationale to allow regulation not just of "actual or apparent quid pro quo arrangements," ibid., but of any conduct that wins goodwill from or influences a Member of Congress. It is not that there is any quarrel between this opinion and the majority that the inquiry since Buckley has been whether certain conduct creates "undue influence." See ante, at 40-41. On that we agree. The very aim of Buckley's standard, however, was to define undue influence by reference to the presence of quid pro quo involving the officeholder. The Court, in contrast, concludes that access, without more, proves influence is undue. Access, in the Court's view, has the same legal ramifications as actual or apparent corruption of officeholders. This new definition of corruption sweeps away all protections for speech that lie in its path. </s> The majority says it is not abandoning our cases in this way, but its reasoning shows otherwise: "More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress' legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing 'undue influence on an officeholder's judgment, or the appearance of such influence.' [Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 441 (2001) (Colorado II)]. Many of the 'deeply disturbing examples' of corruption cited by this Court in Buckley to justify FECA's contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. Even if that access did not secure actual influence, it certainly gave the 'appearance of such influence.' Colorado II, supra, at 441; see also [Buckley v. Valeo, 519 F.2d 821, 838 (CADC 1975)]. </s> "The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholdersin exchange for large soft-money donations. See [251 F.Supp. 2d 176, 492-506 (DC 2003) (Kollar-Kotelly, J.)]." Ante, at 40-41. </s> The majority notes that access flowed from the regulated conduct at issue in Buckley and its progeny, then uses that fact as the basis for concluding that access peddling by the parties equals corruption by the candidates. That conclusion, however, is tenable only by a quick and subtle shift, and one that breaks new ground: The majority ignores the quid pro quo nature of the regulated conduct central to our earlier decisions. It relies instead solely on the fact that access flowed from the conduct. </s> To ignore the fact that in Buckley the money at issue was given to candidates, creating an obvious quid pro quo danger as much as it led to the candidates also providing access to the donors, is to ignore the Court's comments in Buckley that show quid pro quo was of central importance to the analysis. See 424 U.S., at 26-27, 45. The majority also ignores that in Buckley, and ever since, those party contributions that have been subject to congressional limit were not general party-building contributions but were only contributions used to influence particular elections. That is, they were contributions that flowed to a particular candidate's benefit, again posing a quid pro quo danger. And it ignores that in Colorado II, the party spending was that which was coordinated with a particular candidate, thereby implicating quid pro quo dangers. In all of these ways the majority breaks the necessary tether between quid and access and assumes that access, all by itself, demonstrates corruption and so can support regulation. See also ante, at 47 ("[L]arge soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put"). </s> Access in itself, however, shows only that in a general sense an officeholder favors someone or that someone has influence on the officeholder. There is no basis, in law or in fact, to say favoritism or influence in general is the same as corrupt favoritism or influence in particular. By equating vague and generic claims of favoritism or influence with actual or apparent corruption, the Court adopts a definition of corruption that dismantles basic First Amendment rules, permits Congress to suppress speech in the absence of a quid pro quo threat, and moves beyond the rationale that is Buckley's very foundation. </s> The generic favoritism or influence theory articulated by the Court is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle. Any given action might be favored by any given person, so by the Court's reasoning political loyalty of the purest sort can be prohibited. There is no remaining principled method for inquiring whether a campaign finance regulation does in fact regulate corruption in a serious and meaningful way. We are left to defer to a congressional conclusion that certain conduct creates favoritism or influence. </s> Though the majority cites common sense as the foundation for its definition of corruption, see ante, at 35, 43, in the context of the real world only a single definition of corruption has been found to identify political corruption successfully and to distinguish good political responsiveness from bad--that is quid pro quo. Favoritism and influence are not, as the Government's theory suggests, avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness. Quid pro quo corruption has been, until now, the only agreed upon conduct that represents the bad form of responsiveness and presents a justiciable standard with a relatively clear limiting principle: Bad responsiveness may be demonstrated by pointing to a relationship between an official and a quid. </s> The majority attempts to mask its extension of Buckley under claims that BCRA prevents the appearance of corruption, even if it does not prevent actual corruption, since some assert that any donation of money to a political party is suspect. See ante, at 40-42. Under Buckley's holding that Congress has a valid "interest in stemming the reality or appearance of corruption," 424 U.S., at 47-48, however, the inquiry does not turn on whether some persons assert that an appearance of corruption exists. Rather, the inquiry turns on whether the Legislature has established that the regulated conduct has inherent corruption potential, thus justifying the inference that regulating the conduct will stem the appearance of real corruption. Buckley was guided and constrained by this analysis. In striking down expenditure limits the Court in Buckley did not ask whether people thought large election expenditures corrupt, because clearly at that time many persons, including a majority of Congress and the President, did. See id., at 25 ("According to the parties and amici, the primary interest served . . . by the Act as a whole, is the prevention of corruption and the appearance of corruption"). Instead, the Court asked whether the Government had proved that the regulated conduct, the expenditures, posed inherent quid pro quo corruption potential. See id., at 46. </s> The Buckley decision made this analysis even clearer in upholding contribution limitations. It stated that even if actual corrupt contribution practices had not been proved, Congress had an interest in regulating the appearance of corruption that is "inherent in a regime of large individual financial contributions." Id., at 27 (discussing contributions to candidates). See also id., at 28, 30. The quid pro quo nature of candidate contributions justified the conclusion that the contributions pose inherent corruption potential; and this in turn justified the conclusion that their regulation would stem the appearance of real corruption. </s> From that it follows that the Court today should not ask, as it does, whether some persons, even Members of Congress, conclusorily assert that the regulated conduct appears corrupt to them. Following Buckley, it should instead inquire whether the conduct now prohibited inherently poses a real or substantive quid pro quo danger, so that its regulation will stem the appearance of quid pro quo corruption. 1. New FECA §§323(a), (b), (d), and (f) </s> Sections 323(a), (b), (d), and (f), 2 U.S.C.A. §§441i(a), (b), (d), and (f) (Supp. 2003), cannot stand because they do not add regulation to conduct that poses a demonstrable quid pro quo danger. They do not further Buckley's corruption interest. The majority, with a broad brush, paints §323(a) as aimed at limiting contributions possessing federal officeholder corruption potential. From there it would justify §323's remaining provisions as necessary complements to ensure the national parties cannot circumvent §323(a)'s prohibitions. The broad brush approach fails, however, when the provisions are reviewed under Buckley's proper definition of corruption potential. </s> On its face §323(a) does not regulate federal candidates' or officeholders' receipt of quids because it does not regulate contributions to, or conduct by, candidates or officeholders. See BCRA §101(a) (setting out new FECA §323(a): National parties may not "solicit, receive, or direct to another person ... or spend any [soft money]"). </s> The realities that underlie the statute, furthermore, do not support the majority's interpretation. Before BCRA's enactment, parties could only use soft money for a candidate's "benefit" (e.g., through issue ads, which all parties now admit may influence elections) independent of that candidate. And, as discussed later, §323(e) validly prohibits federal candidate and officeholder solicitation of soft money party donations. See infra, at 31. Section 323(a), therefore, only adds regulation to soft money party donations not solicited by, or spent in coordination with, a candidate or officeholder. </s> These donations (noncandidate or officeholder solicited soft money party donations that are independently spent) do not pose the quid pro quo dangers that provide the basis for restricting protected speech. Though the government argues §323(a) does regulate federal candidates' and officeholders' receipt of quids, it bases its argument on this flawed reasoning: (1) "[F]ederal elected officeholders are inextricably linked to their political parties," Brief for Appellees/Cross Appellants FEC etal. in No. 02-1674 etal., p.21; cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 626 (1996) (Colorado I) (Kennedy, J., concurring in judgment and dissenting in part). </s> (2) All party receipts must be connected to, and must create, corrupt donor favoritism among theseofficeholders. </s> (3) Therefore, regulation of party receipts equals regulation of quids to the party's officeholders. </s> The reasoning is flawed because the Government's reliance on reasoning parallel to the Colorado I concurrence only establishes the first step in its chain of logic: that a party is a proxy for its candidates generally. It does not establish the second step: that as a proxy for its candidates generally, all moneys the party receives (not just candidate solicited-soft money donations, or donations used in coordinated activity) represent quids for all the party's candidates and officeholders. The Government's analysis is inconsistent with what a majority of the Justices, in different opinions, have said. </s> Justice Thomas' dissent in Colorado II, 533 U.S., at 476-477, taken together with Justice Breyer's opinion announcing the judgment of the Court in Colorado I, rebuts the second step of the Government's argument. Justice Thomas demonstrated that a general party-candidate corruption linkage does not exist. As he pointed out: "The dearth of evidence [of such corruption] is unsurprising in light of the unique relationship between a political party and its candidates: 'The very aim of a political party is to influence its candidate's stance on issues and, if the candidate takes office or is reelected, his votes.' If coordinated expenditures help achieve this aim, the achievement 'does not ... constitute "a subversion of the political process."'" Colorado II,supra, at 476-477 (citations omitted). </s> Justice Breyer reached the same conclusion about the corrupting effect general party receipts could have on particular candidates, though on narrower grounds. He concluded that independent party conduct lacks quid pro quo corruption potential. See Colorado I, 518 U.S., at 617-618; id., at 617 ("If anything, an independent [party] expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seem less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor"); id., at 616 ("[T]he opportunity for corruption posed by [soft money] contributions is, at best, attenuated" because they may not be used for the purposes of influencing a federal election under FECA). </s> These opinions establish that independent party activity, which by definition includes independent receipt and spending of soft money, lacks a possibility for quid pro quo corruption of federal officeholders. This must be all the more true of a party's independent receipt and spending of soft money donations neither directed to nor solicited by a candidate. </s> The Government's premise is also unsupported by the record before us. The record confirms that soft money party contributions, without more, do not create quid pro quo corruption potential. As a conceptual matter, generic party contributions may engender good will from a can-didate or officeholder because, as the Government says: "[A]Member of Congress can be expected to feel a natural temptation to favor those persons who have helped the 'team,'" Brief for Appellees/Cross-Appellants FEC etal. in No. 02-1674 etal., p.33. Still, no Member of Congress testified this favoritism changed voting behavior. </s> The piece of record evidence the Government puts forward on this score comes by way of deposition testimony from former Senator Simon and Senator Feingold. See 251 F.Supp. 2d 176, 482 (DC 2003) (Kollar-Kotelly, J.). Senator Simon reported an unidentified colleague indicated frustration with Simon's opposition to legislation that would benefit a party contributor on the grounds that "'we've got to pay attention to who is buttering our bread'" and testified he did not think there was any question "'this'" (i.e., "donors getting their way") was why the legislation passed. See App. 805. Senator Feingold, too, testified an unidentified colleague suggested he support the legislation because "'they [i.e., the donor] just gave us [i.e., the party] $100,000.'" 251 F.Supp. 2d, at 482 (Kollar-Kotelly, J.). </s> That evidence in fact works against the Government. These two testifying Senators expressed disgust toward the favoring of a soft money giver, and not the good will one would have expected under the Government's theory. That necessarily undercuts the inference of corruption the Government would have us draw from the evidence. </s> Even more damaging to the Government's argument from the testimony is the absence of testimony that the Senator who allegedly succumbed to corrupt influence had himself solicited soft money from the donor in question. Equally, there is no indication he simply favored the company with his vote because it had, without any involvement from him, given funds to the party to which he belonged. This fact is crucial. If the Senator himself had been the solicitor of the soft money funds in question, the incident does nothing more than confirm that Congress' efforts at campaign finance reform ought to be directed to conduct that implicates quid pro quo relationships. Only if there was some evidence that the officeholder had not solicited funds from the donor could the Court extrapolate from this episode that general party contributions function as quids, inspiring corrupt favoritism among party members. The episode is the single one of its type reported in the record and does not seem sufficient basis for major incursions into settled practice. Given the Government's claim that the corrupt favoritism problem is widespread, its inability to produce more than a single instance purporting to illustrate the point demonstrates the Government has not fairly characterized the general attitudes of Members towards soft money donors from whom they have not solicited. </s> Other aspects of the record confirm the Government has not produced evidence that Members corruptly favor soft money donors to their party as a per se matter. Most testimony from which the Government would have the Court infer corruption is testimony that Members are rewarded by their parties for soliciting soft money. See id., at 438-521 (Kollar-Kotelly, J.). This says nothing about how Members feel about a party's soft money donors from whom they have not solicited. Indeed, record evidence on this point again cuts against the Government: "'As a Member of the Senate Finance Committee, I experienced the pressure first hand. On several occasions when we were debating important tax bills, I needed a police escort to get into the Finance Committee hearing room because so many lobbyists were crowding the halls, trying to get one last chance to make their pitch to each Senator. Senators generally knew which lobbyist represented the interests of which large donor. I was often glad that I limited the amount of soft money fundraising I did and did not take PAC contributions, because it would be extremely difficult not to feel beholden to these donors otherwise.'" Id., at 482 (testimony of former Senator Boren; see 6-R Defs. Exhs., Tab 8, ¶ ;8). </s> Thus, one of the handful of Senators on whom the Government relies to make its case candidly admits the pressure of appeasing soft money donors derives from the Members' solicitation of donors, not from those donors' otherwise giving to their party. </s> In light of all this, §323(a) has no valid anticorruption interest. The anticircumvention interests the Government offers in defense of §§323(b), (d), and (f) must also fall with the interests asserted to justify §323(a). Any anticircumvention interest can be only as compelling as the interest justifying the underlying regulation. </s> None of these other sections has an independent justifying interest. Section 323(b), for example, adds regulation only to activity undertaken by a state party. In the District Court two of the three judges found as fact that particular state and local parties exist primarily to participate in state and local elections, that they spend the majority of their resources on those elections, and that their voter registration and Get Out The Vote (GOTV) activities, in particular, are directed primarily at state and local elections. See 251 F.Supp. 2d, at 301-302 (Henderson, J., concurring in judgment in part and dissenting in part); id., at 837-840 (Leon, J.). These findings, taken together with BCRA's other, valid prohibitions barring coordination with federal candidates or officeholders and their soft money solicitation, demonstrate that §323(b) does not add regulation to conduct that poses a danger of a federal candidate's or officeholder's receipt of quids. </s> Even §323(b)'s narrowest regulation, which bans state party soft money funded ads that (1) refer to a clearly identified federal candidate, and (2) either support or attack any candidate for the office of the clearly mentioned federal candidate, see new FECA §301(20)(A)(iii), fails the constitutional test. The ban on conduct that by the statute's own definition may serve the interest of a federal candidate suggests to the majority that it is conduct that poses quid pro quo danger for federal candidates or officeholders. Yet, even this effect--considered after excising the coordination and candidate-solicited funding aspects elsewhere prohibited by BCRA §§202 and 214(a) and new FECA §323(a)--poses no danger of a federal candidate's or officeholder's receipt of a quid. That conduct is no different from an individual's independent expenditure referring to and supporting a clearly identified candidate--and this poses no regulable danger. </s> Section 323(d), which governs relationships between the national parties and nonprofit groups, fails for similar reasons. It is worth noting that neither the record nor our own experience tells us how significant these funds transfers are at this time. It is plain, however, that the First Amendment ought not to be manipulated to permit Congress to forbid a political party from aiding other speakers whom the party deems more effective in addressing discrete issues. One of the central flaws in BCRA is that Congress is determining what future course the creation of ideas and the expression of views must follow. Its attempt to foreclose new and creative partnerships for speech, as illustrated here, is consistent with neither the traditions nor principles of our Free Speech guarantee, which insists that the people, and not the Congress, decide what modes of expression are the most legitimate and effective. </s> The majority's upholding §323(d) is all the more unsettling because of the way it ignores the Act as Congress wrote it. Congress said national parties "shall not solicit any funds for, or make or direct any donations to" §501(c) nonprofit organizations that engage in federal election activity or to §527 political committees. The Court, however, reads out the word "any" and construes the words "funds" and "donations" to mean "soft money funds" and "soft money donations." See ante, at 72 ("This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole"). The Court's statutory amendment may be consistent with its anti-soft-money rationale; it is not, however, consistent with the plain and unavoidable statutory text Congress has given us. Even as construed by the Court, moreover, it is invalid. </s> The majority strains to save the provision from what must seem to it an unduly harsh First Amendment. It does so by making a legislative determination Congress chose not to make: to prefer hard money to soft money within the construct of national party relationships with nonprofit groups. Congress gave no indication of a preference to regulate either hard money or soft in this context. Rather, it simply proscribed all transfers of money between the two organizations and all efforts by the national parties to raise any money on the nonprofit groups' behalf. The question the Court faces is not which part of a text to sever and strike, but whether Congress can prohibit such transfers altogether. The answer, as the majority recognizes, is no. See ante, at 71 ("[P]rohibiting parties from donating funds already raised in compliance with FECA does little to further Congress' goal of preventing corruption or the appearance of corruption of federal candidates and officeholders"). </s> Though §323(f) in effect imposes limits on candidate contributions, it does not address federal candidate and officeholder contributions. Yet it is the possibility of federal officeholder quid pro quo corruption potential that animates Buckley's rule as it relates to Acts of Congress (as opposed to Acts of state legislatures). See 424 U.S., at 13 ("The constitutional power of Congress to regulate federal elections is well established"). </s> When one recognizes that §§323(a), (b), (d), and (f) do not serve the interest the anticorruption rationale contemplates, Title I's entirety begins to look very much like an incumbency protection plan. See J. Miller, Monopoly Politics 84-101 (1999) (concluding that regulations limiting election fundraising and spending constrain challengers more than incumbents). That impression is worsened by the fact that Congress exempted its officeholders from the more stringent prohibitions imposed on party officials. Compare new FECA §323(a) with new FECA §323(e). Section 323(a) raises an inflexible bar against soft money solicitation, in any way, by parties or party officials. Section 323(e), in contrast, enacts exceptions to the rule for federal officeholders (the very centerpiece of possible corruption), and allows them to solicit soft money for various uses and organizations. </s> The law in some respects even weakens the regulation of federal candidates and officeholders. Under former law, officeholders were understood to be limited to receipt of hard money by their campaign committees. See 2 U.S.C. §§431, 441a (setting out the pre-BCRA FECA regime). BCRA, however, now allows them and their campaign committees to receive soft money that fits the hard money source and amount restrictions, so long as the officeholders direct that money on to other nonfederal candidates. See new FECA §323(e)(1)(B). The majority's characterization of this weakening of the regime as "tightly constrain[ing]" candidates, ante, at 73, n.70, is a prime example of its unwillingness to confront Congress' own interest or the persisting fact that the regulations violate First Amendment freedoms. The more lenient treatment accorded to incumbency-driven politicians than to party officials who represent broad national constituencies must render all the more suspect Congress' claim that the Act's sole purpose is to stop corruption. The majority answers this charge by stating the obvious, that "§323(e) applies to both officeholders and candidates." Ante, at 78, n. 72. The controlling point, of course, is the practical burden on challengers. That the prohibition applies to both incumbents and challengers in no way establishes that it burdens them equally in that regard. Name recognition and other advantages held by incumbents ensure that as a general rule incumbents will be advantaged by the legislation the Court today upholds. The Government identifies no valid anticorruption interest justifying §§323(a), (b), (d), and (f). The very nature of the restrictions imposed by these provisions makes one all the more skeptical of the Court's explanation of the interests at stake. These provisions cannot stand under the First Amendment. 2. New FECA §323(e) </s> Ultimately, only one of the challenged Title I provisions satisfies Buckley's anticorruption rationale and the First Amendment's guarantee. It is §323(e). This provision is the sole aspect of Title I that is a direct and necessary regulation of federal candidates' and officeholders' receipt of quids. Section 323(e) governs "candidate[s], individual[s] holding Federal office, agent[s] of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office." 2 U.S.C.A. §441i(e) (Supp. 2003). These provisions, and the regulations that follow, limit candidates' and their agents' solicitation of soft money. The regulation of a candidate's receipt of funds furthers a constitutionally sufficient interest. More difficult, however, is the question whether regulation of a candidate's solicitation of funds also furthers this interest if the funds are given to another. I agree with the Court that the broader solicitation regulation does further a sufficient interest. The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates' or officeholders' solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley's anticorruption rationale. B. Standard of Review </s> It is common ground between the majority and this opinion that a speech-suppressing campaign finance regulation, even if supported by a sufficient Government interest, is unlawful if it cannot satisfy our designated standard of review. See ante, at 24-27. In Buckley, we applied "closely drawn" scrutiny to contribution limitations and strict scrutiny to expenditure limitations. Compare 424 U.S., at 25, with id., at 44-45. Against that backdrop, the majority assumes that because Buckley applied the rationale in the context of contribution and expenditure limits, its application gives Congress and the Court the capacity to classify any challenged campaign finance regulation as either a contribution or an expenditure limit. Thus, it first concludes Title I's regulations are contributions limits and then proceeds to apply the lesser scrutiny. "Complex as its provisions may be, §323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders." Ante, at 28. </s> Though the majority's analysis denies it, Title I's dynamics defy this facile, initial classification. </s> Title I's provisions prohibit the receipt of funds; and in most instances, but not all, this can be defined as a contribution limit. They prohibit the spending of funds; and in most instances this can be defined as an expenditure limit. They prohibit the giving of funds to nonprofit groups; and this falls within neither definition as we have ever defined it. Finally, they prohibit fundraising activity; and the parties dispute the classification of this regulation (the challengers say it is core political association, while the Government says it ultimately results only in a limit on contribution receipts). </s> The majority's classification overlooks these competing characteristics and exchanges Buckley's substance for a formulaic caricature of it. Despite the parties' and the majority's best efforts on both sides of the question, it ignores reality to force these regulations into one of the two legal categories as either contribution or expenditure limitations. Instead, these characteristics seem to indicate Congress has enacted regulations that are neither contribution nor expenditure limits, or are perhaps both at once. </s> Even if the laws could be classified in broad terms as only contribution limits, as the majority is inclined to do, that still leaves the question what "contribution limits" can include if they are to be upheld under Buckley. Buckley's application of a less exacting review to contribution limits must be confined to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder. Any broader definition of the category contradicts Buckley's quid pro quo rationale and overlooks Buckley's language, which contemplates limits on contributions to a candidate or campaign committee in explicit terms. See 424 U.S., at 13 (applying less exacting review to "contribution ... limitations in the Act prohibit[ing] individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign"); id., at 45 ("[T]he contribution limitations' [apply a] total ban on the giving of large amounts of money to candidates"). See also id., at 20, 25, 28. </s> The Court, it must be acknowledged, both in Buckley and on other occasions, has described contribution limits due some more deferential review in less than precise terms. At times it implied that donations to political parties would also qualify as contributions whose limitation too would be subject to less exacting review. See id., at 23-24, n.24 ("[T]he general understanding of what constitutes a political contribution[:] Funds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary constitute a contribution"). See also Federal Election Comm'n v. Beaumont, 539 U.S., at ___ (2003) (slip op., at 14) ("'[C]ontributions may result in political expression if spent by a candidate or an association'"). </s> These seemingly conflicting statements are best reconciled by reference to Buckley's underlying rationale for applying less exacting review. In a similar, but more imperative, sense proper application of the standard of review to regulations that are neither contribution nor expenditure limits (or which are both at once) can only be determined by reference to that rationale. </s> Buckley's underlying rationale is this: Less exacting review applies to Government regulations that "significantly interfere" with First Amendment rights of association. But any regulation of speech or associational rights creating "markedly greater interference" than such significant interference receives strict scrutiny. Unworkable and ill advised though it may be, Buckley unavoidably sets forth this test: "Even a '"significant interference" with protected rights of political association' may be sustained if the State demonstrates [1] a sufficiently important interest and [2] employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda, [419 U.S. 477, 488 (1975)]; NAACP v. Button, [371 U.S. 415, 438 (1963)]; Shelton v. Tucker [364 U.S. 479, 488 (1960)]." 424 U.S., at 25. </s> "The markedly greater burden on basic freedoms [referring to 'the freedom of speech and association'] caused by [expenditure limits] thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of [the expenditure limits] turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression." Id., at 44-45.† </s> The majority, oddly enough, first states this standard with relative accuracy, but then denies it. Compare: "The relevant inquiry [in determining the level of scrutiny] is whether the mechanism adopted to implement the contribution limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not," ante, at 28-29, with: </s> "None of this is to suggest that the alleged associational burdens imposed on parties by §323 have no place in the First Amendment analysis. It is only that we account for them in the application, rather than the choice, of the appropriate level of scrutiny." Ante, at 31. </s> The majority's attempt to separate out how burdens on speech rights and burdens on associational rights affect the standard of review is misguided. It is not even true to Buckley's unconventional test. Buckley, as shown in the quotations above, explained the lower standard of review by reference to the level of burden on associational rights, and it explained the need for a higher standard of review by reference to the higher burdens on both associational and speech rights. In light of Buckley's rationale, and in light of this Court's ample precedent affirming that burdens on speech necessitate strict scrutiny review, see 424 U.S., at 44-45 ("[E]xacting scrutiny [applies] to limitations on core First Amendment rights of political expression"), "closely drawn" scrutiny should be employed only in review of a law that burdens rights of association, and only where that burden is significant, not markedly greater. Since the Court professes not to repudiate Buckley, it was right first to say we must determine how significant a burden BCRA's regulations place on First Amendment rights, though it should have specified that the rights implicated are those of association. Its later denial of that analysis flatly contradicts Buckley. </s> The majority makes Buckley's already awkward and imprecise test all but meaningless in its application. If one is viewing BCRA through Buckley's lens, as the majority purports to do, one must conclude the Act creates markedly greater associational burdens than the significant burden created by contribution limitations and, unlike contribution limitations, also creates significant burdens on speech itself. While BCRA contains federal contribution limitations, which significantly burden association, it goes even further. The Act entirely reorders the nature of relations between national political parties and their candidates, between national political parties and state and local parties, and between national political parties and nonprofit organizations. </s> The many and varied aspects of Title I's regulations impose far greater burdens on the associational rights of the parties, their officials, candidates, and citizens than do regulations that do no more than cap the amount of money persons can contribute to a political candidate or committee. The evidence shows that national parties have a long tradition of engaging in essential associational activities, such as planning and coordinating fundraising with state and local parties, often with respect to elections that are not federal in nature. This strengthens the conclusion that the regulations now before us have unprecedented impact. It makes impossible, moreover, the contrary conclusion--which the Court's standard of review determination necessarily implies--that BCRA's soft money regulations will not much change the nature of association between parties, candidates, nonprofit groups, and the like. Similarly, Title I now compels speech by party officials. These officials must be sure their words are not mistaken for words uttered in their official capacity or mistaken for soliciting prohibited soft, and not hard, money. Few interferences with the speech, association, and free expression of our people are greater than attempts by Congress to say which groups can or cannot advocate a cause, or how they must do it. </s> Congress has undertaken this comprehensive reordering of association and speech rights in the name of enforcing contribution limitations. Here, however, as in Buckley, "[t]he markedly greater burden on basic freedoms caused by [BCRA's pervasive regulation] cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations." Id., at 44-45. BCRA fundamentally alters, and thereby burdens, protected speech and association throughout our society. Strict scrutiny ought apply to review of its constitutionality. Under strict scrutiny, the congressional scheme, for the most part, cannot survive. This is all but acknowledged by the Government, which fails even to argue that strict scrutiny could be met. 1. New FECA §323(e) </s> Because most of the Title I provisions discussed so far do not serve a compelling or sufficient interest, the standard of review analysis is only dispositive with respect to new FECA §323(e). As to §323(e), 2 U.S.C.A. §441i(e) (Supp. 2003), I agree with the Court that this provision withstands constitutional scrutiny. Section 323(e) is directed solely to federal candidates and their agents; it does not ban all solicitation by candidates, but only their solicitation of soft money contributions; and it incorporates important exceptions to its limits (candidates may receive, solicit, or direct funds that comply with hard money standards; candidates may speak at fundraising events; candidates may solicit or direct unlimited funds to organizations not involved with federal election activity; and candidates may solicit or direct up to $20,000 per individual per year for organizations involved with certain federal election activity (e.g., GOTV, voter registration)). These provisions help ensure that the law is narrowly tailored to satisfy First Amendment requirements. For these reasons, I agree §323(e) is valid. 2. New FECA §§323(a), (b), (d), and (f) </s> Though these sections do not survive even the first test of serving a constitutionally valid interest, it is necessary as well to examine the vast overbreadth of the remainder of Title I, so the import of the majority's holding today is understood. Sections 323(a), (b), (d), and (f), 2 U.S.C.A. §§441i(a), (b), (d), and (f) (Supp. 2003), are not narrowly tailored, cannot survive strict scrutiny, and cannot even be considered closely drawn, unless that phrase is emptied of all meaning. First, the sections all possess fatal overbreadth. By regulating conduct that does not pose quid pro quo dangers, they are incursions on important categories of protected speech by voters and party officials. </s> At the next level of analytical detail, §323(a) is overly broad as well because it regulates all national parties, whether or not they present candidates in federal elections. It also regulates the national parties' solicitation and direction of funds in odd-numbered years when only state and local elections are at stake. </s> Likewise, while §323(b) might prohibit some state party conduct that would otherwise be undertaken in conjunction with a federal candidate, it reaches beyond that to a considerable range of campaign speech by the state parties on nonfederal issues. A state or local party might want to say: "The Democratic slate for state assembly opposes President Bush's tax policy .... Elect the Republican slate to tell Washington, D.C. we don't want higher taxes." Section 323(b) encompasses this essential speech and prohibits it equally with speech that poses a federal officeholder quid quo pro danger. </s> Other predictable political circumstances further demonstrate §323(b)'s overbreadth. It proscribes the use of soft money for all state party voter registration efforts occurring within 120 days of a federal election. So, the vagaries of election timing, not any real interest related to corruption, will control whether state parties can spend nonfederally regulated funds on ballot efforts. This overreaching contradicts important precedents that recognize the need to protect political speech for campaigns related to ballot measures. See generally Citizens Against Rent Control, 454 U.S. 290 (1981); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978). </s> Section 323(b) also fails the narrow tailoring requirement because less burdensome regulatory options were available. The Government justifies the provision as an attempt to stop national parties from circumventing the soft money allocation constraints they faced under the prior FECA regime. We are told that otherwise the national parties would let the state parties spend money on their behalf. If, however, the problem were avoidance of allocation rates, Congress could have made any soft money transferred by a national party to a state party subject to the allocation rates that governed the national parties' similar use of the money. </s> Nor is §323(d) narrowly tailored. The provision, proscribing any solicitation or direction of funds, prohibits the parties from even distributing or soliciting regulated money (i.e., hard money). It is a complete ban on this category of speech. To prevent circumvention of contribution limits by imposing a complete ban on contributions is to burden the circumventing conduct more severely than the underlying suspect conduct could be burdened. </s> By its own terms, the statute prohibits speech that does not implicate federal elections. The provision prohibits any transfer to a §527 organization, irrespective of whether the organization engages in federal election activity. This is unnecessary, as well, since Congress enacted a much narrower provision in §323(a)(2) to prevent circumvention by the parties via control of other organizations. Section 323(a)(2) makes "any entity that is directly or indirectly . . . controlled by" the national parties subject to the same §323(a) prohibitions as the parties themselves. 2 U.S.C.A. §441i (Supp. 2003). </s> Section 323(f), too, is not narrowly tailored or even close to it. It burdens a substantial body of speech and expression made entirely independent of any federal candidate. The record, for example, contains evidence of Alabama Attorney General Pryor's reelection flyers showing a picture of Pryor shaking hands with President Bush and stating: "Bush appointed Pryor to be Alabama co-chairman of the George W. Bush for President campaign." A host of circumstances could make such statements advisable for state candidates to use without any coordination with a federal candidate. Section 323(f) incorporates no distinguishing feature, such as an element of coordination, to ensure First Amendment protected speech is not swept up within its bounds. </s> Compared to the narrowly tailored effort of §323(e), which addresses in direct and specific terms federal candidates' and officeholders' quest for dollars, these sections cast a wide net not confined to the critical categories of federal candidate or officeholder involvement. They are not narrowly tailored; they are not closely drawn; they flatly violate the First Amendment; and even if they do encompass some speech that poses a regulable quid pro quo danger, that little assurance does not justify or permit a regime which silences so many legitimate voices in this protected sphere. C. Coordination Provisions </s> Other BCRA Title II sections require analysis alongside the provisions of Title I, for they, too, are regulations that principally operate within the ambit of Buckley's anticorruption principle. BCRA §§202 and 214 are two of these provisions. They involve the Act's new definition of coordination. BCRA §213 is another. It institutes a new system in which the parties are forced to choose between two different types of relationships with their candidates. 1. </s> I agree with the majority that §§214(b) and (c) do not merit our review because they are not now justiciable. See ante, at 118. I disagree, however, with the majority's view that §214(a), §214's sole justiciable provision, is valid. Nor can I agree that §202 is valid in its entirety. Section 214(a) amends FECA to define, as hard money contributions to a political party, expenditures an individual makes in concert with the party. See ante, at 114. This provision, in my view, must fall. As the earlier discussion of Title I explains, individual contributions to the political parties cannot be capped in the soft money context. Since an individual's soft money contributions to a party may not be limited, it follows with even greater force that an individual's expenditure of money, coordinated with the party for activities on which the party could spend unlimited soft money, cannot be capped. </s> This conclusion emerges not only from an analysis of Title I but also from Colorado I. There, Justice Breyer's opinion announcing the judgment of the Court concluded political parties had a constitutional right to engage in independent advocacy on behalf of a candidate. 518 U.S. 604 (1996). That parties can spend unlimited soft money on this activity follows by necessary implication. A political party's constitutional right to spend money on advocacy independent of a candidate is burdened by §214(a) in a direct and substantial way. The statute commands the party to refrain from coordinating with an individual engaging in advocacy even if the individual is acting independently of the candidate. </s> Section 202 functions in a manner similar to the operation of §214(a). It directs that when persons make "electioneering communications," see new FECA §304(f)(3), 2 U.S.C.A. §434(f)(3) (Supp. 2003), in a coordinated fashion with a candidate or a party, the coordinated communication expense must be treated as a hard money contribution by the person to that candidate or party. The trial court erroneously believed it needed to determine whether §304's definition of electioneering communications was itself unconstitutional to assess this provision. While a statutory definition may lead to an unconstitutional result under one application, it may lead to a constitutional result under another. Compare infra, at 35-36; infra, at 38, with infra, at 63-66. It is unhelpful to talk in terms of the definition being unconstitutional or constitutional when the only relevant question is whether, as animated by a substantive prohibition, here §202, the definition leads to unconstitutional results. The other Title II provisions that employ §304's electioneering communication definition are analyzed below, within the context of the corporate speech rationale and the disclosure provisions. Section 202, however, must be judged under the anticorruption rationale because it does not distinguish according to corporate or union status, and it does not involve disclosure requirements. Section 202 simply limits the speech of all "persons." </s> Section 202 does satisfy Buckley's anticorruption rationale in one respect: It treats electioneering communications expenditures made by a person in coordination with a candidate as hard money contributions to that candidate. For many of the same reasons that §323(e) is valid, §202, in this single way, is valid: it regulates conduct that poses a quid pro quo danger--satisfaction of a candidate'srequest. </s> Insofar as §202 regulates coordination with a political party, however, it suffers from the same flaws as §214(a). Congress has instructed us, as much as possible, to sever any infirm portions of statutory text from the valid parts, see BCRA §401. Following that instruction, I would uphold §202's text as to its candidate coordination regulation (the first clause of new FECA §315(a)(7)(C)(ii), 2 U.S.C.A. §441a(a)(7)(C)(ii) (Supp. 2003), but rule invalid its text that applies the coordination provision to political parties. </s> This provision includes an "advance contracts" aspect as well. That aspect of the provision, on its own, would be invalid, for many of the reasons discussed below with respect to the advance disclosure requirements embodied in BCRA §§201 and 212. See infra, at 38-39. 2. </s> The final aspect of BCRA that implicates Buckley's anticorruption rationale is §213, the forced choice provision. The majority concludes §213 violates the Constitution. I agree and write on this aspect of the case to point out that the section's unlawfulness flows not from the unique contours of the statute that settle how much political parties may spend on their candidate's campaign, see ante, at 109-113, but from its raw suppression of constitutionally protected speech. Section 213 unconstitutionally forces the parties to surrender one of two First Amendment rights. We affirmed that parties have a constitutionally protected right to make independent expenditures in Colorado I. I continue to believe, moreover, that even under Buckley a political party has a protected right to make coordinated expenditures with its candidates. See Colorado II, 478 U.S. 109, 144-145 (1986) (O'Connor, J., concurring in judgment). This role would be undermined in the absence of a party's ability to coordinate with candidates. Cf. Colorado I, supra, at 629 (parties can "give effect to their views only by selecting and supporting candidates") (Kennedy, J., concurring in judgment and dissenting in part). Section 213's command that the parties abandon one First Amendment right or the other offends the Constitution even more than a command that a person choose between a First Amendment right and a statutory right. II. TITLE II PROVISIONS A. Disclosure Provisions </s> BCRA §201, which requires disclosure of electioneering communications, including those coordinated with the party but independent of the candidate, does not substantially relate to a valid interest in gathering data about compliance with contribution limits or in deterring corruption. Contra, ante, at 89. As the above analysis of Title I demonstrates, Congress has no valid interest in regulating soft money contributions that do not pose quid pro quo corruption potential. In the absence of a valid basis for imposing such limits the effort here to ensure compliance with them and to deter their allegedly corrupting effects cannot justify disclosure. The regulation does substantially relate to the other interest the majority details, however. See ibid. This assures its constitutionality. For that reason, I agree with the Court's judgment upholding the disclosure provisions contained in §201 of Title II, with one exception. Section 201's advance disclosure requirement--the aspect of the provision requiring those who have contracted to speak to disclose their speech in advance--is, in my view, unconstitutional. Advance disclosure imposes real burdens on political speech that post hoc disclosure does not. It forces disclosure of political strategy by revealing where ads are to be run and what their content is likely to be (based on who is running the ad). It also provides an opportunity for the ad buyer's opponents to dissuade broadcasters from running ads. See Brief for Plaintiffs-Appellants/Cross-Appellees National Right to Life Committee, Inc., etal. in No. 02-1733 etal., pp. 44-46, and nn. 42-43. Against those tangible additional burdens, the Government identifies no additional interest uniquely served by advance disclosure. If Congress intended to ensure that advertisers could not flout these disclosure laws by running an ad before the election, but paying for it afterwards, see ante, at 93-94, then Congress should simply have required the disclosure upon the running of the ad. Burdening the First Amendment further by requiring advance disclosure is not a constitutionally acceptable alternative. To the extent §201 requires advance disclosure, it finds no justification in its subordinating interests and imposes greater burdens than the First Amendment permits. </s> Section 212, another disclosure provision, likewise incorporates an advance disclosure requirement. The plaintiffs challenge only this advance disclosure requirement, and not the broader substance of this section. The majority concludes this challenge is not ripe. I disagree. </s> The statute commands advance disclosure. The FEC has issued a regulation under §212 that, by its terms,does not implement this particular requirement. See68 Fed. Reg. 404, 452 (2003) (to be codified at 11 CFR §109.10(c)(d)). Adoption of a regulation that does not implement the statute to its full extent does not erase the statutory requirement. This is not a case in which a statute is ambiguous and the agency interpretation can be relied upon to avoid a statutory obligation that is uncertain or arguable. The failure of the regulation at this point to require advance disclosure is of no moment. Contra, 251 F.Supp. 2d, at 251 (per curiam). The validity of §212 is an issue presented for our determination; it is ripe; and the advance disclosure requirement, for the reasons given when discussing the parallel provision under §201, is unconstitutional. Contra, ante, at 106 (declining to address the ripeness question in light of the majority's rejection of the challenge to advance notice in §201). B. BCRA §203 </s> The majority permits a new and serious intrusion on speech when it upholds §203, the key provision in Title II that prohibits corporations and labor unions from using money from their general treasury to fund electioneering communications. The majority compounds the error made in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and silences political speech central to the civic discourse that sustains and informs our democratic pro-cesses. Unions and corporations, including nonprofit corporations, now face severe criminal penalties for broadcasting advocacy messages that "refe[r] to a clearly identified candidate," 2 U.S.C.A. §431(20)(A)(iii) (Supp. 2003), in an election season. Instead of extending Austin to suppress new and vibrant voices, I would overrule it and return our campaign finance jurisprudence to principles consistent with the First Amendment. 1. </s> The Government and the majority are right about one thing: The express-advocacy requirement, with its list of magic words, is easy to circumvent. The Government seizes on this observation to defend BCRA §203, arguing it will prevent what it calls "sham issue ads" that are really to the same effect as their more express counterparts. Ante, at 78, 85-87. What the Court and the Government call sham, however, are the ads speakers find most effective. Unlike express ads that leave nothing to the imagination, the record shows that issues ads are preferred by almost all candidates, even though politicians, unlike corporations, can lawfully broadcast express ads if they so choose. It is a measure of the Government's disdain for protected speech that it would label as a sham the mode of communication sophisticated speakers choose because it is the most powerful. The Government's use of the pejorative label should not obscure §203's practical effect: It prohibits a mass communication technique favored in the modern political process for the very reason that it is the most potent. That the Government would regulate it for this reason goes only to prove the illegitimacy of the Government's purpose. The majority's validation of it is not sustainable under accepted First Amendment principles. The problem is that the majority uses Austin, a decision itself unfaithful to our First Amendment precedents, to justify banning a far greater range of speech. This has it all backwards. If protected speech is being suppressed, that must be the end of the inquiry. </s> The majority's holding cannot be reconciled with First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978), which invalidated a Massachusetts law prohibiting banks and business corporations from making expenditures "for the purpose of" influencing referendum votes on issues that do not "materially affect" their business interests. Id., at 767. Bellotti was decided in the face of the same arguments on which the majority now relies. Corporate participation, the Government argued in Bellotti, "would exert an undue influence on the outcome of a referendum vote." Id., at 789. The influence, presumably, was undue because "immense aggregations of wealth" were facilitated by the "unique state-conferred corporate structure." Austin, 494 U.S., at 660. With these "state-created advantages," id., at 659, corporations would "drown out other points of view" and "destroy the confidence of the people in the democratic process." Bellotti, 435 U.S., at 789. Bellotti rejected these arguments in emphatic terms: "To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution 'protects expression which is eloquent no less than that which is unconvincing.' Kingsley Int'l Pictures Corp. v. Regents, 360 U.S., at 689.... '[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment....' Buckley, 424 U.S., at 48-49." Id., at 790-791. </s> Bellotti similarly dismissed the argument that the prohibition was necessary to "protec[t] corporate shareholders" "by preventing the use of corporate resources in furtherance of views with which some shareholders may disagree." Id., at 792-793. Among other problems, the statute was overinclusive: "[It] would prohibit a corporation from supporting or opposing a referendum proposal even if its shareholders unanimously authorized the contribution or expenditure.... Acting through their power to elect the board of directors or to insist upon protective provisions in the corporation's charter, shareholders normally are presumed competent to protect their own interests.... [M]inority shareholders generally have access to the judicial remedy of a derivative suit to challenge corporate disbursements .... Assuming, arguendo, that protection of shareholders is a 'compelling' interest under the circumstances of this case, we find 'no substantially relevant correlation between the governmental interest asserted and the State's effort' to prohibit appellants from speaking." Id., at 794-795. </s> See also Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) (providing analogous protections to union members). </s> Austin turned its back on this holding, not because the Bellotti Court had overlooked the Government's interest in combating quid pro quo corruption, but because a new majority decided to recognize "a different type of corruption," Austin, 479 U.S. 238 (1986) (MCFL), the prohibition extends even to nonprofit corporations organized to promote a point of view. Aside from its disregard of precedents, the majority's ready willingness to equate corruption with all organizations adopting the corporate form is a grave insult to nonprofit and for-profit corporations alike, entities that have long enriched our civic dialogue. </s> Austin was the first and, until now, the only time our Court had allowed the Government to exercise the power to censor political speech based on the speaker's corporate identity. The majority's contrary contention is simply incorrect. Contra, ante, at 96-97 ("Since our decision in Buckley, Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law"). I dissented in Austin, 494 U.S., at 695, and continue to believe that the case represents an indefensible departure from our tradition of free and robust debate. Two of my colleagues joined the dissent, including a member of today's majority. Ibid. (O'Connor and Scalia, JJ.). See also id., at 679 (Scalia, J., dissenting). </s> To be sure, Bellotti concerns issue advocacy, whereas Austin is about express advocacy. This distinction appears to have accounted for the position of at least two members of the Court. See 494 U.S., at 675-676 (Brennan, J., concurring) ("The Michigan law . . . prohibits corporations from using treasury funds only for making independent expenditures in support of, or in opposition to, any candidate in state elections. A corporation remains free ... to use general treasury funds to support an initiative proposal in a state referendum" (citation omitted)); id., at 678 (Stevens, J., concurring) ("[T]here is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other"). The distinction, however, between independent expenditures for commenting on issues, on the one hand, and supporting or opposing a candidate, on the other, has no First Amendment significance apart from Austin's arbitrary line. </s> Austin was based on a faulty assumption. Contrary to Justice Stevens' proposal that there is "vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other," ibid., there is a general recognition now that discussions of candidates and issues are quite often intertwined in practical terms. See, e.g., Brief for Intervenor-Defendants Senator John McCain etal. in No. 02-1674 etal., p.42 ("'[The] legal ... wall between issue advocacy and political advocacy ... is built of the same sturdy material as the emperor's clothing. Everyone sees it. No one believes it'" (quoting the chair of the Political Action Committee (PAC) of the National Rifle Association (NRA))). To abide by Austin's repudiation of Bellotti on the ground that Bellotti did not involve express advocacy is to adopt a fiction. Far from providing a rationale for expanding Austin, the evidence in these consolidated cases calls for its reexamination. Just as arguments about immense aggregations of corporate wealth and concerns about protecting shareholders and union members do not justify a ban on issue ads, they cannot sustain a ban on independent expenditures for express ads. In holding otherwise, Austin "forced a substantial amount of political speech underground" and created a species of covert speech incompatible with our free and open society. Nixon v. Shrink Missouri Gov-ernment PAC, 528 U.S., at 406 (Kennedy, J., dissenting). </s> The majority not only refuses to heed the lessons of experience but also perpetuates the conflict Austin created with fundamental First Amendment principles. Buckley foresaw that "the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application," 424 U.S., at 42; see also id., at 45. It recognized that "'[p]ublic discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct.'" Id., at 42, n.50. Hence, "'[d]iscussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections.'" Ibid. In glossing over Austin's opposite--and false--assumption that express advocacy is different, the majority ignores reality and elevates a distinction rejected by Buckley in clear terms. </s> Even after Buckley construed the statute then before the Court to reach only express advocacy, it invalidated limits on independent expenditures, observing that "[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation." 447 U.S. 530 (1980). </s> Continued adherence to Austin, of course, cannot be justified by the corporate identity of the speaker. Not only does this argument fail to account for Bellotti, 408 U.S. 92 (1972). The exemption for broadcast media companies, moreover, makes the First Amendment problems worse, not better. See Austin, 494 U.S., at 712 (Kennedy, J., dissenting) ("An independent ground for invalidating this statute is the blanket exemption for media corporations. . . . All corporations communicate with the public to some degree, whether it is their business or not; and communication is of particular importance for nonprofit corporations"); see also id., at 690-691 (Scalia, J., dissenting) ("Amassed corporate wealth that regularly sits astride the ordinary channels of information is much more likely to produce the New Corruption (too much of one point of view) than amassed corporate wealth that is generally busy making money elsewhere"). In the end the majority can supply no principled basis to reason away Austin's anomaly. Austin's errors stand exposed, and it is our duty to say so. </s> I surmise that even the majority, along with the Government, appreciates these problems with Austin. That is why it invents a new justification. We are now told that "the government also has a compelling interest in insulating federal elections from the type of corruption arising from the real or apparent creation of political debts." Brief for Appellees/Cross-Appellants FEC etal. in No. 02-1674 etal., p.88. "[E]lectioneering communications paid for with the general treasury funds of labor unions and corporations," the Government warns, "endea[r] those entities to elected officials in a way that could be perceived by the public as corrupting." See 251 F.Supp. 2d, at 622-623 (Kollar-Kotelly, J.) (stating the Government's position). </s> This rationale has no limiting principle. Were we to accept it, Congress would have the authority to outlaw even pure issue ads, because they, too, could endear their sponsors to candidates who adopt the favored positions. Taken to its logical conclusion, the alleged Government interest "in insulating federal elections from ... the real or apparent creation of political debts" also conflicts with Buckley. If a candidate feels grateful to a faceless, impersonal corporation for making independent expenditures, the gratitude cannot be any less when the money came from the CEO's own pocket. Buckley, however, struck down limitations on independent expenditures and rejected the Government's corruption argument absent evidence of coordination. See 424 U.S., at 51. The Government's position would eviscerate the line between expenditures and contributions and subject both to the same "complaisant review under the First Amendment." Federal Election Committee v. Beaumont, 539 U.S., at ___ (slip op., at 14). Complaisant or otherwise, we cannot cede authority to the Legislature to do with the First Amendment as it pleases. Since Austin is inconsistent with the First Amendment, its extension diminishes the First Amendment even further. For this reason §203 should be held unconstitutional. 2. </s> Even under Austin, BCRA §203 could not stand. All parties agree strict scrutiny applies; §203, however, is far from narrowly tailored. The Government is unwilling to characterize §203 as a ban, citing the possibility of funding electioneering communications out of a separate segregated fund. This option, though, does not alter the categorical nature of the prohibition on the corporation. "[T]he corporation as a corporation is prohibited from speaking." Austin, 494 U.S., at 681, n. (Scalia, J., dissenting). What the law allows--permitting the corporation "to serve as the founder and treasurer of a different association of individuals that can endorse or oppose political candidates"--"is not speech by the corporation." Ibid. </s> Our cases recognize the practical difficulties corporations face when they are limited to communicating through PACs. The majority need look no further than MCFL, 479 U.S. 238, for an extensive list of hurdles PACs have to confront: "Under [2 U.S.C.] §432 [(1982 ed.)], [MCFL] must appoint a treasurer, §432(a); ensure that contributions are forwarded to the treasurer within 10 or 30 days of receipt, depending on the amount of contribution, §432(b)(2); see that its treasurer keeps an account of every contribution regardless of amount, the name and address of any person who makes a contribution in excess of $50, all contributions received from political committees, and the name and address of any person to whom a disbursement is made regardless of amount, §432(c); and preserve receipts for all disbursements over $200 and all records for three years, §§432(c), (d). Under §433, MCFL must file a statement of organization containing its name, address, the name of its custodian of records, and its banks, safety deposit boxes, or other depositories, §§433(a), (b); must report any change in the above information within 10 days, §433(c); and may dissolve only upon filing a written statement that it will no longer receive any contributions nor make disbursements, and that it has no outstanding debts or obligations, §433(d)(1). </s> "Under §434, MCFL must file either monthly reports with the FEC or reports on the following schedule: quarterly reports during election years, a pre-election report no later than the 12th day before an election, a postelection report within 30 days after an election, and reports every 6 months during nonelection years. §§434(a)(4)(A), (B). These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate's authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation. §434(b). In addition, MCFL may solicit contributions for its separate segregated fund only from its 'members,' §§441b(b)(4)(A), (C), which does not include those persons who have merely contributed to or indicated support for the organization in the past." Id., at 253-254. </s> These regulations are more than minor clerical requirements. Rather, they create major disincentives for speech, with the effect falling most heavily on smaller entities that often have the most difficulty bearing the costs of compliance. Even worse, for an organization that has not yet set up a PAC, spontaneous speech that "refers to a clearly identified candidate for Federal office" becomes impossible, even if the group's vital interests are threatened by a piece of legislation pending before Congress on the eve of a federal election. See Brief for Appellants Chamber of Commerce of the United States etal. in No. 02-1756 etal., p.37. Couple the litany of administrative burdens with the categorical restriction limiting PACs' solicitation activities to "members," and it is apparent that PACs are inadequate substitutes for corporations in their ability to engage in unfettered expression. </s> Even if the newly formed PACs manage to attract members and disseminate their messages against these heavy odds, they have been forced to assume a false identity while doing so. As the American Civil Liberties Union (ACLU) points out, political committees are regulated in minute detail because their primary purpose is to influence federal elections. "The ACLU and thousands of other organizations like it," however, "are not created for this purpose and therefore should not be required to operate as if they were." Reply Brief for Appellant ACLU in No. 02-1734 etal., p.15. A requirement that coerces corporations to adopt alter egos in communicating with the public is, by itself, sufficient to make the PAC option a false choice for many civic organizations. Forcing speech through an artificial "secondhand endorsement structure...debases the value of the voice of nonprofit corporate speakers ... [because] PAC's are interim, adhoc organizations with little continuity or responsibility." Austin, 494 U.S., at 708-709 (Kennedy, J., dissenting). In contrast, their sponsoring organizations "have a continuity, a stability, and an influence" that allows "their members and the public at large to evaluate their ... credibility." Id., at 709. </s> The majority can articulate no compelling justification for imposing this scheme of compulsory ventriloquism. If the majority is concerned about corruption and distortion of the political process, it makes no sense to diffuse the corporate message and, under threat of criminal penalties, to compel the corporation to spread the blame to its adhoc intermediary. </s> For all these reasons, the PAC option cannot advance the Government's argument that the provision meets the test of strict scrutiny. See, e.g., id., at 657-660; MCFL, 479 U.S. 238; see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000) ("When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression"). </s> Once we turn away from the distraction of the PAC option, the provision cannot survive strict scrutiny. Under the primary definition, §203 prohibits unions and corporations from funding from their general treasury any broadcast, cable, or satellite communication which-- "(I) refers to a clearly identified candidate for Federal office; </s> "(II) is made within-- </s> "(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or </s> "(bb) 30 days before a primary or preference election, or a convention or caucus of a political partythat has authority to nominate a candidate, for the office sought by the candidate; and </s> "(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate." 2 U.S.C.A. §434f(3)(A)(i) (Supp. 2003). </s> The prohibition, with its crude temporal and geographic proxies, is a severe and unprecedented ban on protected speech. As discussed at the outset, suppose a few Senators want to show their constituents in the logging industry how much they care about working families and propose a law, 60 days before the election, that would harm the environment by allowing logging in national forests. Under §203, a nonprofit environmental group would be unable to run an ad referring to these Senators in their districts. The suggestion that the group could form and fund a PAC in the short time required for effective participation in the political debate is fanciful. For reasons already discussed, moreover, an adhoc PAC would not be as effective as the environmental group itself in gaining credibility with the public. Never before in our history has the Court upheld a law that suppresses speech to this extent. </s> The group would want to refer to these Senators, either by name or by photograph, not necessarily because an election is at stake. It might be supposed the hypothetical Senators have had an impeccable environmental record, so the environmental group might have no previous or present interest in expressing an opinion on their candidacies. Or, the election might not be hotly contested in some of the districts, so whatever the group says would have no practical effect on the electoral outcome. The ability to refer to candidates and officeholders is important because it allows the public to communicate with them on issues of common concern. Section 203's sweeping approach fails to take into account this significant free speech interest. Under any conventional definition of overbreadth, it fails to meet strict scrutiny standards. It forces electioneering communications sponsored by an environmental group to contend with faceless and nameless opponents and consign their broadcast, as the NRA well puts it, to a world where politicians who threaten the environment must be referred to as "'He Whose Name Cannot Be Spoken.'" Reply Brief for Appellants NRA etal. in No. 02-1675 etal., p.19. </s> In the example above, it makes no difference to §203 or to the Court that the bill sponsors may have such well-known ideological biases that revealing their identity would provide essential instruction to citizens on whether the policy benefits them or their community. Nor does it make any difference that the names of the bill sponsors, perhaps through repetition in the news media, have become so synonymous with the proposal that referring to these politicians by name in an ad is the most effective way to communicate with the public. Section 203 is a comprehensive censor: On the pain of a felony offense, the ad must not refer to a candidate for federal office during the crucial weeks before an election. </s> We are supposed to find comfort in the knowledge that the ad is banned under §203 only if it "is targeted to the relevant electorate," defined as communications that can be received by 50,000 or more persons in the candidate's district. See 2 U.S.C.A. §434(f)(3)(C) (Supp. 2003). This Orwellian criterion, however, is analogous to a law, unconstitutional under any known First Amendment theory, that would allow a speaker to say anything he chooses, so long as his intended audience could not hear him. See Kleindienst v. Mandel, 408 U.S. 753, 762-765 (1972) (discussing the "First Amendment right to receive information and ideas" (internal quotation marks omitted)). A central purpose of issue ads is to urge the public to pay close attention to the candidate's platform on the featured issues. By banning broadcast in the very district where the candidate is standing for election, §203 shields information at the heart of the First Amendment from precisely those citizens who most value the right to make a responsible judgment at the voting booth. </s> In defending against a facial attack on a statute with substantial overbreadth, it is no answer to say that corporations and unions may bring as-applied challenges on a case-by-case basis. When a statute is as out of bounds as §203, our law simply does not force speakers to "undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation." Virginia v. Hicks, 539 U.S. ___, ___ (2003) (slip op., at 5). If they instead "abstain from protected speech," they "har[m] not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas." Ibid. Not the least of the ill effects of today's decision is that our overbreadth doctrine, once a bulwark of protection for free speech, has now been manipulated by the Court to become but a shadow of its former self. </s> In the end the Government and intervenor-defendants cannot dispute the looseness of the connection between §203 and the Government's proffered interest in stemming corruption. At various points in their briefs, they drop all pretense that the electioneering ban bears a close relation to anticorruption purposes. Instead, they defend §203 on the ground that the targeted ads "may influence," are "likely to influence," or "will in all likelihood have the effect of influencing" a federal election. See Brief for Appellees/Cross-Appellants FEC etal. in No. 02-1674 etal., pp.14, 24, 84, 92-93, 94; Brief for Intervenor-Defendants Senator John McCain etal. in No. 02-1674 etal., pp.42-43. The mere fact that an ad may, in one fashion or another, influence an election is an insufficient reason for outlawing it. I should have thought influencing elections to be the whole point of political speech. Neither strict scrutiny nor any other standard the Court has adopted to date permits outlawing speech on the ground that it might influence an election, which might lead to greater access to politicians by the sponsoring organization, which might lead to actual corruption or the appearance of corruption. Settled law requires a real and close connection between end and means. The attenuated causation the majority endorses today is antithetical to the concept of narrow tailoring. 3. </s> As I would invalidate §203 under the primary definition, it is necessary to add a few words about the backup provision. As applied in §203, the backup definition prohibits corporations and unions from financing from their general treasury funds "any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate." 2 U.S.C.A. §434f(3)(A)(ii) (Supp. 2003). </s> The prohibition under the backup has much of the same imprecision as the ban under the primary definition, though here there is even more overbreadth. Unlike the primary definition, the backup contains no temporal or geographic limitation. Any broadcast, cable, or satellite communications--not just those aired within a certain blackout period and received by a certain segment of the population--are prohibited, provided they "promote," "support," "attack," or "oppose" a candidate. There is no showing that such a permanent and ubiquitous restriction meets First Amendment standards for the relationship between means and ends. </s> The backup definition is flawed for the further reason that it is vague. The crucial words--"promotes," "support," "attack," "oppose"--are nowhere defined. In this respect the backup is similar to the provision in the Federal Election Campaign Act that Buckley held to be unconstitutionally vague. Cf. 424 U.S., at 39-44 ("'No person may make any expenditure ... relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000'"). </s> The statutory phrase "suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate" cannot cure the overbreadth or vagueness of the backup definition. Like other key terms in the provision, these words are not defined. The lack of guidance presents serious problems of uncertainty. If "plausible" means something close to "reasonable in light of the totality of the circumstances," speakers will be provided with an insufficient degree of protection and will, as a result, engage in widespread self-censorship to avoid severe criminal penalties. </s> Given the statute's vagueness, even defendants' own experts disagree among themselves about whether specific ads fall within the prohibition. Hence, people "of common intelligence must necessarily guess at [the backup definition's] meaning and differ as to its application," Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). For these reasons, I would also invalidate the ban on electioneering communication under the backup definition. 4. </s> Before concluding the analysis on Title II, it is necessary to add a few words about the majority's analysis of §204. The majority attempts to minimize the damage done under §203 by construing §204 (the Wellstone Amendment) to incorporate an exception for MCFL-type corporations. See MCFL, 479 U.S. 238. Section 204, however, does no such thing. As even the majority concedes, the provision "does not, on its face, exempt MCFL organizations from its prohibition." Ante, at 105. Although we normally presume that legislators would not deliberately enact an unconstitutional statute, that presumption is inapplicable here. There is no ambiguity regarding what §204 is intended to accomplish. Enacted to supersede the Snowe-Jeffords Amendment that would have carved out precisely this exception for MCFL corporations, §204 was written to broaden BCRA's scope to include issue-advocacy groups. See, e.g., App. to Brief for Appellants NRA etal. in No. 02-1675 etal., pp.65a, 67a (Sen. Wellstone) ("[I]ndividuals with all this wealth" will "make their soft money contributions to these sham issue ads run by all these ... organizations, which under this loophole can operate with impunity" to run "poisonous ads." I have an amendment that ... make[s] sure ... this big money doesn't get [through]"). Instead of deleting the Snowe-Jeffords Amendment from the bill, however, the Wellstone Amendment was inserted in a separate section to preserve severability. Were we to indulge the presumption that Congress understood the law when it legislated, the Wellstone Amendment could be understood only as a frontal challenge to MCFL. Even were I to agree with the majority's interpretation of §204, however, my analysis of Title II remains unaffected. The First Amendment protects the right of all organizations, not just a subset of them, to engage in political speech. See Austin, 494 U.S., at 700-701 (Kennedy, J., dissenting) ("The First Amendment does not permit courts to exercise speech suppression authority denied to legislatures"). 5. </s> Title II's vagueness and overbreadth demonstrate Congress' fundamental misunderstanding of the First Amendment. The Court, it must be said, succumbs to the same mistake. The majority begins with a denunciation of direct campaign contributions by corporations and unions. It then uses this rhetorical momentum as its leverage to uphold the Act. The problem, however, is that Title II's ban on electioneering communications covers general commentaries on political issues and is far removed from laws prohibiting direct contributions from corporate and union treasuries. The severe First Amendment burden of this ban on independent expenditures requires much stronger justifications than the majority offers. See Buckley, supra, at 23. The hostility toward corporations and unions that infuses the majority opinion is inconsistent with the viewpoint neutrality the First Amendment demands of all Government actors, including the members of this Court. Corporations, after all, are the engines of our modern economy. They facilitate complex operations on which the Nation's prosperity depends. To say these entities cannot alert the public to pending political issues that may threaten the country's economic interests is unprecedented. Unions are also an established part of the national economic system. They, too, have their own unique insights to contribute to the political debate, but the law's impact on them is just as severe. The costs of the majority's misplaced concerns about the "corrosive and distorting effects of immense aggregations of wealth," Austin, supra, at 660, moreover, will weigh most heavily on budget-strapped nonprofit entities upon which many of our citizens rely for political commentary and advocacy. These groups must now choose between staying on the sidelines in the next election or establishing a PAC against their institutional identities. PACs are a legal construct sanctioned by Congress. They are not necessarily the means of communication chosen and preferred by the citizenry. In the same vein the Court is quite incorrect to suggest that the mainstream press is a sufficient palliative for the novel and severe constraints this law imposes on the political process. The Court should appreciate the dynamic contribution diverse groups and associations make to the intellectual and cultural life of the Nation. It should not permit Congress to foreclose or restrict those groups from participating in the political process by constraints not applicable to the established press. CONCLUSION </s> The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people and the Government may not prescribe the means used to conduct it. The First Amendment commands that Congress "shall make no law ... abridging the freedom of speech." The command cannot be read to allow Congress to provide for the imprisonment of those who attempt to establish new political parties and alter the civic discourse. Our pluralistic society is filled with voices expressing new and different viewpoints, speaking through modes and mechanisms that must be allowed to change in response to the demands of an interested public. As communities have grown and technology has evolved, concerted speech not only has become more effective than a single voice but also has become the natural preference and efficacious choice for many Americans. The Court, upholding multiple laws that suppress both spontaneous and concerted speech, leaves us less free than before. Today's decision breaks faith with our tradition of robust and unfettered debate. </s> For the foregoing reasons, with respect, I dissent from the Court's decision upholding the main features of Titles I and II. APPENDIX TO OPINION OF KENNEDY, J. BCRA §101(a), 116 Stat. 81, which sets forth new FECA §323, 2 U.S.C.A. §441i (Supp. 2003), provides: "SEC. 323. SOFT MONEY OF POLITICAL PARTIES. </s> "(a) NATIONAL COMMITTEES.-- </s> "(1) IN GENERAL.--A national committee of a political party (including a national congressional campaign committee of a political party) may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act. </s> "(2) APPLICABILITY.--The prohibition established by paragraph (1) applies to any such national committee, any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee. </s> "(b) STATE, DISTRICT, AND LOCAL COMMITTEES.-- </s> "(1) IN GENERAL.--Except as provided in paragraph (2), an amount that is expended or disbursed for Federal election activity by a State, district, or local committee of a political party (including an entity that is directly or indirectly established, financed, maintained, or controlled by a State, district, or local committee of a political party and an officer or agent acting on behalf of such committee or entity), or by an association or similar group of candidates for State or local office or of individuals holding State or local office, shall be made from funds subject to the limitations, prohibitions, and reporting requirements of this Act. </s> "(2) APPLICABILITY.-- </s> "(A) IN GENERAL.--Notwithstanding clause (i) or (ii) of section 301(20)(A), and subject to subparagraph (B), paragraph (1) shall not apply to any amount expended or disbursed by a State, district, or local committee of a political party for an activity described in either such clause to the extent the amounts expended or disbursed for such activity are allocated (under regulations prescribed by the Commission) among amounts-- </s> "(i) which consist solely of contributions subject to the limitations, prohibitions, and reporting requirements of this Act (other than amounts described in subparagraph (B)(iii)); and </s> "(ii) other amounts which are not subject to the limitations, prohibitions, and reporting requirements of this Act (other than any requirements of this subsection). </s> "(B) CONDITIONS.--Subparagraph (A) shall only apply if-- </s> "(i) the activity does not refer to a clearly identified candidate for Federal office; </s> "(ii) the amounts expended or disbursed are not for the costs of any broadcasting, cable, or satellite communication, other than a communication which refers solely to a clearly identified candidate for State or local office; </s> "(iii) the amounts expended or disbursed which are described in subparagraph (A)(ii) are paid from amounts which are donated in accordance with State law and which meet the requirements of subparagraph (C), except that no person (including any person established, financed, maintained, or controlled by such person) may donate more than $10,000 to a State, district, or local committee of a political party in a calendar year for such expenditures or disbursements; and </s> "(iv) the amounts expended or disbursed are made solely from funds raised by the State, local, or district committee which makes such expenditure or disbursement, and do not include any funds provided to such committee from-- </s> "(I) any other State, local, or district committee of any State party, </s> "(II) the national committee of a political party (including a national congressional campaign committee of a political party), </s> "(III) any officer or agent acting on behalf of any committee described in subclause (I) or (II), or </s> "(IV) any entity directly or indirectly established, financed, maintained, or controlled by any committee described in subclause (I) or (II). </s> "(C) PROHIBITING INVOLVEMENT OF NATIONAL PARTIES, FEDERAL CANDIDATES AND OFFICEHOLDERS, AND STATE PARTIES ACTING JOINTLY.--Notwithstanding subsection (e) (other than subsection (e)(3)), amounts specifically authorized to be spent under subparagraph (B)(iii) meet the requirements of this subparagraph only if the amounts-- </s> "(i) are not solicited, received, directed, transferred, or spent by or in the name of any person described in subsection (a) or (e); and </s> "(ii) are not solicited, received, or directed through fundraising activities conducted jointly by 2 or more State, local, or district committees of any political party or their agents, or by a State, local, or district committee of a political party on behalf of the State, local, or district committee of a political party or its agent in one or more other States. </s> "(c) FUNDRAISING COSTS.--An amount spent by a person described in subsection (a) or (b) to raise funds that are used, in whole or in part, for expenditures and disbursements for a Federal election activity shall be made from funds subject to the limitations, prohibitions, and reporting requirements of this Act. </s> "(d) TAX-EXEMPT ORGANIZATIONS.--A national, State, district, or local committee of a political party (including a national congressional campaign committee of a political party), an entity that is directly or indirectly established, financed, maintained, or controlled by any such national, State, district, or local committee or its agent, and an officer or agent acting on behalf of any such party committee or entity, shall not solicit any funds for, or make or direct any donations to-- </s> "(1) an organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code (or has submitted an application for determination of tax exempt status under such section) and that makes expenditures or disbursements in connection with an election for Federal office (including expenditures or disbursements for Federal election activity); or </s> "(2) an organization described in section 527 of such Code (other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office). </s> "(e) FEDERAL CANDIDATES.-- </s> "(1) IN GENERAL.--A candidate, individual holding Federal office, agent of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office, shall not-- </s> "(A) solicit, receive, direct, transfer, or spend funds in connection with an election for Federal office, including funds for any Federal election activity, unless the funds are subject to the limitations, prohibitions, and reporting requirements of this Act; or </s> "(B) solicit, receive, direct, transfer, or spend funds in connection with any election other than an election for Federal office or disburse funds in connection with such an election unless the funds-- </s> "(i) are not in excess of the amounts permitted with respect to contributions to candidates and political committees under paragraphs (1), (2), and (3) of section 315(a); and </s> "(ii) are not from sources prohibited by this Act from making contributions in connection with an election for Federal office. </s> "(2) STATE LAW.--Paragraph (1) does not apply to the solicitation, receipt, or spending of funds by an individual described in such paragraph who is or was also a candidate for a State or local office solely in connection with such election for State or local office if the solicitation, receipt, or spending of funds is permitted under State law and refers only to such State or local candidate, or to any other candidate for the State or local office sought by such candidate, or both. </s> "(3) FUNDRAISING EVENTS.--Notwithstanding paragraph (1) or subsection (b)(2)(C), a candidate or an individual holding Federal office may attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party. </s> "(4) PERMITTING CERTAIN SOLICITATIONS.-- </s> "(A) GENERAL SOLICITATIONS.--Notwithstanding any other provision of this subsection, an individual described in paragraph (1) may make a general solicitation of funds on behalf of any organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code (or has submitted an application for determination of tax exempt status under such section) (other than an entity whose principal purpose is to conduct activities described in clauses (i) and (ii) of section 301(20)(A)) where such solicitation does not specify how the funds will or should be spent. </s> "(B) CERTAIN SPECIFIC SOLICITATIONS.--In addition to the general solicitations permitted under subparagraph (A), an individual described in paragraph (1) may make a solicitation explicitly to obtain funds for carrying out the activities described in clauses (i) and (ii) of section 301(20)(A), or for an entity whose principal purpose is to conduct such activities, if-- </s> "(i) the solicitation is made only to individuals; and </s> "(ii) the amount solicited from any individual during any calendar year does not exceed $20,000. </s> "(f) STATE CANDIDATES.-- </s> "(1) IN GENERAL.--A candidate for State or local office, individual holding State or local office, or an agent of such a candidate or individual may not spend any funds for a communication described in section 301(20)(A)(iii) unless the funds are subject to the limitations, prohibitions, and reporting requirements of this Act. </s> "(2) EXCEPTION FOR CERTAIN COMMUNICATIONS.--Paragraph (1) shall not apply to an individual described in such paragraph if the communication involved is in connection with an election for such State or local office and refers only to such individual or to any other candidate for the State or local office held or sought by such individual, or both." BCRA §101(b), adds a definition of "federal election activity" to FECA §301, 2 U.S.C.A. §431(20) (Supp. 2003), which provides as follows: "(20) FEDERAL ELECTION ACTIVITY.-- </s> "(A) IN GENERAL.--The term 'Federal election activity' means-- </s> "(i) voter registration activity during the period that begins on the date that is 120 days before the date a regularly scheduled Federal election is held and ends on the date of the election; </s> "(ii) voter identification, get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate for Federal office appears on the ballot (regardless of whether a candidate for State or local office also appears on the ballot); </s> "(iii) a public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate); or </s> "(iv) services provided during any month by an employee of a State, district, or local committee of a political party who spends more than 25 percent of that individual's compensated time during that month on activities in connection with a Federal election. </s> "(B) EXCLUDED ACTIVITY.--The term 'Federal election activity' does not include an amount expended or disbursed by a State, district, or local committee of a political party for-- </s> "(i) a public communication that refers solely to a clearly identified candidate for State or local office, if the communication is not a Federal election activity described in subparagraph (A)(i) or (ii); </s> "(ii) a contribution to a candidate for State or local office, provided the contribution is not designated to pay for a Federal election activity described in subparagraph (A); </s> "(iii) the costs of a State, district, or local political convention; and </s> "(iv) the costs of grassroots campaign materials, including buttons, bumper stickers, and yard signs, that name or depict only a candidate for State or local office." Title 2 U.S.C.A. §§441b(a) and (b)(1)-(2) (Supp. 2003), as amended by BCRA §203, provide: "(a) It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section. </s> "(b)(1) For the purposes of this section the term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. </s> "(2) For purposes of this section and section 79l(h) of Title 15, the term "contribution or expenditure" includes a contribution or expenditure, as those terms are defined in section 431 of this title, and also includes any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section or for any applicable electioneering communication, but shall not include (A) communications by a corporation to its stockholders and executive or administrative personnel and their families or by a labor organization to its members and their families on any subject; (B) nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and executive or administrative personnel and their families, or by a labor organization aimed at its members and their families; and (C) the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation, labor organization, membership organization, cooperative, or corporation without capital stock." </s> FOOTNOTESFootnote *Together with No. 02-1675, National Rifle Association et al. v. Federal Election Commission et al., No. 02-1676, Federal Election Commission et al. v. McConnell, United States Senator, et al., No. 02-1702, McCain, United States Senator, et al. v. McConnell, United States Senator, et al., No. 02-1727, Republican National Committee et al. v. Federal Election Commission et al., No. 02-1733, National Right to Life Committee, Inc., et al. v. Federal Election Commission et al., No. 02-1734, American Civil Liberties Union v. Federal Election Commission et al., No. 02-1740, Adams et al. v. Federal Election Commission et al., No. 02-1747, Paul, United States Congressman, et al. v. Federal Election Commission et al., No. 02-1753, California Democratic Party et al. v. Federal Election Commission et al., No. 02-1755, American Federation of Labor and Congress of Industrial Organizations et al. v. Federal Election Commission et al., and No. 02-1756, Chamber of Commerce of the United States et al. v. Federal Election Commission et al., also on appeal from the same court. FOOTNOTESFootnote **Justice Souter, Justice Ginsburg, and Justice Breyer join this opinion in its entirety. Footnote 1The parties to the litigation are described in the findings of the District Court. 251 F.Supp. 2d 176, 221-226 (DC 2003) (per curiam). For the sake of clarity, we refer to the parties who challenged the law in the District Court as the "plaintiffs," referring to specific plaintiffs by name where necessary. We refer to the parties who intervened in defense of the law as the "intervenor-defendants." Footnote 2The Hatch Act also limited both the amount political committees could expend and the amount they could receive in contributions. Act of July 19, 1940, ch. 640, 54 Stat. 767. Senator Bankhead, in offering the amendment from the Senate floor, said: </s> "'We all know that money is the chief source of corruption. We all know that large contributions to political campaigns not only put the political party under obligation to the large contributors, who demand pay in the way of legislation, but we also know that large sums of money are used for the purpose of conducting expensive campaigns through the newspapers and over the radio; in the publication of all sorts of literature, true and untrue; and for the purpose of paying the expenses of campaigners sent out into the country to spread propaganda, both true and untrue.'" United States v. Automobile Workers, 352 U.S. 567, 577-578 (1957) (quoting 86 Cong. Rec. 2720 (1940)). Footnote 3As a general rule, FECA permits corporations and unions to solicit contributions to their PACs from their shareholders or members, but not from outsiders. 2 U.S.C. §§441b(b)(4)(A), (C); see Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 198-199, and n. 1 (1982). Footnote 4The court held that one disclosure provision was unconstitutionally vague and overbroad. Buckley v. Valeo, 519 F.2d 821, 832 (CADC 1975) (en banc) (per curiam) (invalidating 2 U.S.C. §437a (1970 ed., Supp. V)). No appeal was taken from that holding. Buckley v. Valeo, 424 U.S. 1, 10, n. 7 (1976) (per curiam). Footnote 5The Court of Appeals found: </s> "Large contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributor's particular concerns. Senator Mathias not only describes this but also the corollary, that the feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process." Buckley, 519 F.2d, at 838 (footnotes omitted). </s> The court also noted: </s> "Congress found and the District Court confirmed that such contributions were often made for the purpose of furthering business or private interests by facilitating access to government officials or influencing governmental decisions, and that, conversely, elected officials have tended to afford special treatment to large contributors. See S. Rep. No. 93-689, 93d Cong., 2d Sess. 4-5; Findings I, ¶ ;¶ ;108, 110, 118, 170." Id., at 838, n. 32. </s> Citing further evidence of corruption, the court explained: </s> "The disclosures of illegal corporate contributions in 1972 included the testimony of executives that they were motivated by the perception that this was necessary as a 'calling card, something that would get us in the door and make our point of view heard,' Hearings before the Senate Select Comm. on Presidential Campaign Activities, 93d Cong., 1st Sess. 5442 (1973) (Ashland Oil Co.--Orin Atkins, Chairman) or 'in response to pressure for fear of a competitive disadvantage that might result,' id. at 5495, 5514 (American Airlines--George Spater, former chairman); see Findings I, ¶ ;105. The record before Congress was replete with specific examples of improper attempts to obtain governmental favor in return for large campaign contributions. See Findings I, ¶ ;¶ ;159-64." Id., at 839, n. 37. Footnote 6The court cited the intricate scheme of the American Milk Producers, Inc., as an example of the lengths to which contributors went to avoid their duty to disclose: </s> "Since the milk producers, on legal advice, worked on a $2500 limit per committee, they evolved a procedure, after consultation in November 1970 with Nixon fund raisers, to break down [their $2 million donation] into numerous smaller contributions to hundreds of committees in various states which could then hold the money for the President's reelection campaign, so as to permit the producers to meet independent reporting requirements without disclosure." Id., at 839, n.36. </s> The milk producers contributed large sums to the Nixon campaign "in order to gain a meeting with White House officials on price supports." Ibid. Footnote 7In 1977 the FEC promulgated a rule allowing parties to allocate their administrative expenses "on a reasonable basis" between accounts containing funds raised in compliance with FECA and accounts containing nonfederal funds, including corporate and union donations. 11 CFR §102.6(a)(2). In advisory opinions issued in 1978 and 1979, the FEC allowed parties similarly to allocate the costs of voter registration and get-out-the-vote drives between federal and nonfederal accounts. FEC Advisory Op. 1978-10; FEC Advisory Op. 1979-17. See 251 F.Supp. 2d, at 195-197 (per curiam). </s> In 1990 the FEC clarified the phrase "on a reasonable basis" by promulgating fixed allocation rates. 11 CFR §106.5 (1991). The regulations required the Republican National Committee (RNC) and Democratic National Committee (DNC) to pay for at least 60% of mixed-purpose activities (65% in presidential election years) with funds from their federal accounts. §106.5(b)(2). By contrast, the regulations required state and local committees to allocate similar expenditures based on the ratio of federal to nonfederal offices on the State's ballot, §106.5(d)(1), which in practice meant that they could expend a substantially greater proportion of soft money than national parties to fund mixed-purpose activities affecting both federal and state elections. See 251 F.Supp. 2d, at 198-199 (per curiam). Footnote 81 Defs. Exhs., Tab 1, Tbl. 2 (report of Thomas E. Mann, Chair & Sr. Fellow, Brookings Institution (hereinafter Mann Expert Report)); 251 F.Supp. 2d, at 197-201 (per curiam). Footnote 9Mann Expert Report 26; 251 F.Supp. 2d, at 441 (Kollar-Kotelly, J.). Footnote 10Id., at 494 (Kollar-Kotelly, J.). Footnote 11Mann Expert Report 24. Footnote 12In the 2000 election cycle, 35 of the 50 largest soft-money donors gave to both parties; 28 of the 50 gave more than $100,000 to both parties. Mann Expert Report Tbl. 6; see also 251 F.Supp. 2d, at 509 (Kollar-Kotelly, J.); id., at 785, n. 77 (Leon, J.). Footnote 13A former chief executive officer of a large corporation explained: </s> "Business and labor leaders believe, based on their experience, that disappointed Members, and their party colleagues, may shun or disfavor them because they have not contributed. Equally, these leaders fear that if they refuse to contribute (enough), competing interests who do contribute generously will have an advantage in gaining access to and influencing key Congressional leaders on matters of importance to the company or union." App. 283, ¶ ;9 (declaration of Gerald Greenwald, United Airlines (hereinafter Greenwald Decl.)). </s> Amici Curiae Committee for Economic Development and various business leaders attest that corporate soft-money contributions are "coerced and, at bottom, wholly commercial" in nature, and that "[b]usiness leaders increasingly wish to be freed from the grip of a system in which they fear the adverse consequences of refusing to fill the coffers of the major parties." Brief for Committee for Economic Development etal. as Amici Curiae 28. Footnote 14See 251 F.Supp. 2d, at 480 (Kollar-Kotelly, J.); id., at 842 (Leon, J.). Footnote 15See id., at 479-480 (Kollar-Kotelly, J.); id., at 842-843 (Leon, J.). One former party official explained to the District Court: </s> "'Once you've helped a federal candidate by contributing hard money to his or her campaign, you are sometimes asked to do more for the candidate by making donations of hard and/or soft money to the national party committees, the relevant state party (assuming it can accept corporate contributions), or an outside group that is planning on doing an independent expenditure or issue advertisement to help the candidate's campaign.'" Id., at 479 (Kollar-Kotelly, J.). Footnote 16Id., at 532-537 (Kollar-Kotelly, J.); id., at 875-879 (Leon, J.). As the former chair of one major advocacy organization's PAC put it, "'[i]t is foolish to believe there is any practical difference between issue advocacy and advocacy of a political candidate. What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day.'" Id., at 536-537 (Kollar-Kotelly, J.) (quoting Tanya K. Metaksa, Opening Remarks at the American Assn. of Political Consultants Fifth General Session on "Issue Advocacy," Jan. 17, 1997, p.2); 251 F.Supp. 2d, at 878-879 (Leon, J.) (same). Footnote 17Id., at 304 (Henderson, J., concurring in judgment in part anddissenting in part); id., at 534 (Kollar-Kotelly, J.); id., at 875-879 (Leon, J.). Footnote 18It is undisputed that very few ads--whether run by candidates, parties, or interest groups--used words of express advocacy. Id., at 303 (Henderson, J.); id., at 529 (Kollar-Kotelly, J.); id., at 874 (Leon, J.). In the 1998 election cycle, just 4% of candidate advertisements used magic words; in 2000, that number was a mere 5%. App. 1334 (report of Jonathan S. Krasno, Yale University, & Frank J. Sorauf, University of Minnesota, pp. 53-54 (hereinafter Krasno & Sorauf Expert Report); see 1 Defs. Exhs., Tab 2, pp. 53-54). Footnote 19251 F.Supp. 2d, at 564, and n.6 (Kollar-Kotelly, J.) (citing report of Kenneth M. Goldstein, University of Wisconsin-Madison, App. A, Tbl. 16; see 3-R Defs. Exhs., Tab 7); Tr. of Oral Arg. 202-203; see also 251 F.Supp. 2d, at 305 (Henderson, J.). Footnote 20The spending on electioneering communications climbed dramatically during the last decade. In the 1996 election cycle, $135 to $150 million was spent on multiple broadcasts of about 100 ads. In the next cycle (1997-1998), 77 organizations aired 423 ads at a total cost between $270 and $340 million. By the 2000 election, 130 groups spent over an estimated $500 million on more than 1,100 different ads. Two out of every three dollars spent on issue ads in the 2000 cycle were attributable to the two major parties and six major interest groups. Id., at 303-304 (Henderson, J.) (citing Annenberg Public Policy Center, Issue Advertising in the 1999-2000 Election Cycle 1-15 (2001) (hereinafter Annenberg Report); see 38 Defs. Exhs., Tab 22); 251 F.Supp. 2d, at 527 (Kollar-Kotelly, J.) (same); id., at 879 (Leon, J.) (same). Footnote 21Id., at 540 (Kollar-Kotelly, J.) (quoting internal AFL-CIO Memorandum from Brian Weeks to Mike Klein, "Electronic Buy for Illinois Senator," (Oct. 9, 1996), AFL-CIO 005244); 251 F.Supp. 2d, at 886 (Leon, J.) (same). Footnote 22The association was known as the Pharmaceutical Research and Manufacturers of America (PhRMA). Id., at 232 (per curiam). Footnote 23Id., at 232-233. Other examples of mysterious groups included "Voters for Campaign Truth," "Aretino Industries," "Montanans for Common Sense Mining Laws," "American Seniors, Inc.," "American Family Voices," App. 1355 (Krasno & Sorauf Expert Report 71-77), and the "Coalition to Make our Voices Heard," 251 F.Supp. 2d, at 538 (Kollar-Kotelly, J.). Some of the actors behind these groups frankly acknowledged that "'in some places it's much more effective to run an ad by the 'Coalition to Make Our Voices Heard' than it is to say paid for by 'the men and women of the AFL-CIO.'" Ibid. (Kollar-Kotelly, J.) (quoting report of David B. Magleby, Brigham Young University 18-19 (hereinafter Magleby Expert Report), App. 1484-1485). Footnote 24251 F.Supp. 2d, at 518-519 (Kollar-Kotelly, J.). Footnote 25Id., at 478-479 (Kollar-Kotelly, J.) (citing declaration of Robert Hickmott, Senior V.P., Smith-Free Group, ¶ ;8 (hereinafter Hickmott Decl.); see 6-R Defs. Exhs., Tab 19, ¶ ;8). Footnote 26S. Rep. No. 105-167, vol. 4, p.4611 (1998) (hereinafter 1998 Senate Report); 5 id., at 7515. Footnote 273 id., at 4535 (additional views of Sen. Collins). Footnote 281 id., at 41-42, 195-200. The report included a memorandum written by the DNC finance chairman suggesting the use of White House coffees and "overnights" to give major donors "quality time" with the President, and noted that the guests accounted for $26.4 million in contributions. Id., at 194, 196. Footnote 292 id., at 2913-2914, 2921. Despite concerns about Tamraz's background and a possible conflict with United States foreign policy interests, he was invited to six events attended by the President. Id., at 2920-2921. Similarly, the minority noted that in exchange for Michael Kojima's contribution of $500,000 to the 1992 President's Dinner, he and his wife had been placed at the head table with President and Mrs. Bush. Moreover, Kojima received several additional meetings with the President, other administration officials, and United States embassy officials. 4 id., at 5418, 5422, 5428. Footnote 30The former requires an initial contribution of $100,000, and $25,000 for each of the next three years; the latter requires annual contributions of $15,000. 5 id., at 7968. Footnote 31Id., at 7971. Footnote 321 id., at 49; 3 id., at 3997-4006. Footnote 33Id., at 4466. Footnote 34Ibid. Footnote 35Id., at 4468-4470, 4480-4481, 4491-4494. Footnote 36Id., at 4492. Footnote 376 id., at 9394. Footnote 38The national party committees of the two major political parties are: the Republican National Committee (RNC); the Democratic National Committee (DNC); the National Republican Senatorial Committee (NRSC); the National Republican Congressional Committee (NRCC); the Democratic Senatorial Campaign Committee (DSCC); and the Democratic Congressional Campaign Committee (DCCC). 251 F.Supp. 2d, at 468 (Kollar-Kotelly, J.). Footnote 39Justice Kennedy accuses us of engaging in a sleight of hand by conflating "unseemly corporate speech" with the speech of political parties and candidates, and then adverting to the "corporate speech rationale as if it were the linchpin of the litigation." Post, at 7 (opinion concurring in part and dissenting in part). This is incorrect. The principles set forth here and relied upon in assessing Title I are the same principles articulated in Buckley and its progeny that regulations of contributions to candidates, parties, and political committees are subject to less rigorous scrutiny than direct restraints on speech--including "unseemly corporate speech." Footnote 40Since our decision in Buckley, we have consistently applied less rigorous scrutiny to contribution restrictions aimed at the prevention of corruption and the appearance of corruption. See, e.g., 453 U.S. 182, 195-196 (1981) (plurality opinion) (applying less rigorous scrutiny to FECA's $5,000 limit on contributions to multicandidate political committees); National Right to Work, 533 U.S. 431, 456 (2001) (applying less rigorous scrutiny to expenditures coordinated with a candidate); Federal Election Comm'n v. Beaumont, 539 U.S.___, ___ (2003) (slip op., at 14-15) (applying less rigorous scrutiny to provisions intended to prevent circumvention of otherwise valid contribution limits). Footnote 41Indeed, Congress structured §323(b) in such a way as to free individual, corporate, and union donations to state committees for nonfederal elections from federal source and amount restrictions. Footnote 42Justice Kennedy's contention that less rigorous scrutiny applies only to regulations burdening political association, rather than political speech, misreads Buckley. In Buckley, we recognized that contribution limits burden both protected speech and association, though they generally have more significant impacts on the latter. 528 U.S. 377, 388 (2000) ("While we did not [in Buckley] attempt to parse [the] distinctions between the speech and association standards of scrutiny for contribution limits, we did make it clear that those restrictions bore more heavily on the associational right than on [the] freedom to speak. We consequently proceeded on the understanding that a contribution limitation surviving a claim of associational abridgment would survive a speech challenge as well, and we held the standard satisfied by the contribution limits under review." (citation omitted)). It is thus simply untrue in the campaign finance context that all "burdens on speech necessitate strict scrutiny review." Post, at 29. Footnote 43Justice Kennedy is no doubt correct that the associational burdens imposed by a particular piece of campaign-finance regulation may at times be so severe as to warrant strict scrutiny. Ibid. In light of our interpretation of §323(a), however, see infra, at 46-47, §323 does not present such a case. As Justice Kennedy himself acknowledges, even "significant interference" with "protected rights of association" are subject to less rigorous scrutiny. Beaumont, 539 U.S., at _____ (slip op., at 15); see post, at 28. There is thus nothing inconsistent in our decision to account for the particular associational burdens imposed by §323(a) when applying the appropriate level of scrutiny. Footnote 44The fact that the post-1990 explosion in soft-money spending on federal electioneering was accompanied by a series of efforts in Congress to clamp down on such uses of soft money (culminating, of course, in BCRA) underscores the fact that the FEC regulations permitted more than Congress, in enacting FECA, had ever intended. See J. Cantor, Congressional Research Service Report for Congress: Campaign Finance Legislation in the 101st Congress (1990) (9 bills seeking to limit the influence of soft money introduced); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 102nd Congress (1991) (10 such bills introduced); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 103rd Congress (1993) (16 bills); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 104th Congress (1996) (18 bills); see also 251 F.Supp. 2d, at 201-206 (per curiam) (discussing legislative efforts to curb soft money in 105th and subsequent Congresses). Footnote 45Justice Kennedy contends that the plurality's observation in Colorado I that large soft-money donations to a political party pose little threat of corruption "establish[es] that" such contributions are not corrupting. Post, at 17-18 (citing Colorado I, 518 U.S. 604, 616, 617-618 (1996)). The cited dictum has no bearing on the present case. Colorado I addressed an entirely different question--namely, whether Congress could permissibly limit a party's independent expenditures--and did so on an entirely different set of facts. It also had before it an evidentiary record frozen in 1990--well before the soft-money explosion of the 1990's. See Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 839 F.Supp. 1448, 1451 (Colo. 1993). Footnote 46Other business leaders agreed. For example, the chairman of the board and CEO of a major toy company explained: </s> "'Many in the corporate world view large soft money donations as a cost of doing business. ... I remain convinced that in some of the more publicized cases, federal officeholders actually appear to have sold themselves and the party cheaply. They could have gotten even more money, because of the potential importance of their decisions to the affected business.'" 251 F.Supp. 2d, at 491 (Kollar-Kotelly, J.) (quoting declaration of Alan G. Hassenfeld, CEO, Hasbro, Inc., ¶ ;16; see 6-R Defs. Exhs., Tab 17). </s> Similarly the chairman emeritus of a major airline opined: </s> "'Though a soft money check might be made out to a political party, labor and business leaders know that those checks open the doors of the offices of individual and important Members of Congress and the Administration.... Labor and business leaders believe--based on experience and with good reason--that such access gives them an opportunity to shape and affect governmental decisions and that their ability to do so derives from the fact that they have given large sums of money to the parties.'" 251 F.Supp. 2d, at 498 (Kollar-Kotelly, J.) (quoting Greenwald Decl. ¶ ;12, App. 283-284, ¶ ;10); 251 F.Supp. 2d, at 858-859 (Leon, J.) (same). Footnote 47Even more troubling is evidence in the record showing that national parties have actively exploited the belief that contributions purchase influence or protection to pressure donors into making contributions. As one CEO explained: </s> "'[I]f you're giving a lot of soft money to one side, the other side knows. For many economically-oriented donors, there is a risk in giving to only one side, because the other side may read through FEC reports and have staff or a friendly lobbyist call and indicate that someone with interests before a certain committee has had their contributions to the other side noticed. They'll get a message that basically asks: 'Are you sure you want to be giving only to one side? Don't you want to have friends on both sides of the aisle?' If your interests are subject to anger from the other side of the aisle, you need to fear that you may suffer a penalty if you don't give.... [D]uring the 1990's, it became more and more acceptable to call someone, saying you saw he gave to this person, so he should also give to you or the person's opponent.'" Id., at 510 (Kollar-Kotelly, J.) (quoting Randlett Decl. ¶ ;12, App. 715); 251 F. Supp. 2d, at 868 (Leon, J.) (same). Footnote 48In addition to finding no support in our recent cases, see, e.g., Colorado II, 453 U.S. 182 (1981), we upheld FECA's $5,000 limit on contributions to multicandidate political committees. It is no answer to say that such limits were justified as a means of preventing individuals from using parties and political committees as pass-throughs to circumvent FECA's $1,000 limit on individual contributions to candidates. Given FECA's definition of "contribution," the $5,000 and $25,000 limits restricted not only the source and amount of funds available to parties and political committees to make candidate contributions, but also the source and amount of funds available to engage in express advocacy and numerous other noncoordinated expenditures. If indeed the First Amendment prohibited Congress from regulating contributions to fund the latter, the otherwise-easy-to-remedy exploitation of parties as pass-throughs (e.g., a strict limit on donations that could be used to fund candidate contributions) would have provided insufficient justification for such overbroad legislation. Footnote 49At another point, describing our "flawed reasoning," Justice Kennedy seems to suggest that Congress' interest in regulating the appearance of corruption extends only to those contributions that actually "create ... corrupt donor favoritism among ... officeholders." Post, at 16. This latter formulation would render Congress' interest in stemming the appearance of corruption indistinguishable from its interest in preventing actual corruption. Footnote 50In support of this claim, the political party plaintiffs assert that, in 2001, the RNC spent $15.6 million of nonfederal funds (30% of the nonfederal amount raised that year) on purely state and local election activity, including contributions to state and local candidates, transfers to state parties, and direct spending. See Tr. of Oral Arg. 102-103 (statement of counsel Bobby R. Burchfield); 251 F. Supp. 2d, at 336-337 (Henderson, J.); id., at 464-465 (Kollar-Kotelly, J.); id., at 830 (Leon, J.). Footnote 51The close relationship of federal officeholders and candidates to their parties answers not only The Chief Justice's concerns about §323(a), but also his fear that our analysis of §323's remaining provisions bespeaks no limiting principle. Post, at 6-7 (dissenting opinion). As set forth in our discussion of those provisions, the record demonstrates close ties between federal officeholders and the state and local committees of their parties. That close relationship makes state and local parties effective conduits for donors desiring to corrupt federal candidates and officeholders. Thus, in upholding §§323(b), (d), and (f), we rely not only on the fact that they regulate contributions used to fund activities influencing federal elections, but also that they regulate contributions to or at the behest of entities uniquely positioned to serve as conduits for corruption. We agree with The Chief Justice that Congress could not regulate financial contributions to political talk show hosts or newspaper editors on the sole basis that their activities conferred a benefit on the candidate. Post, at 7 (dissenting opinion). Footnote 52Plaintiffs claim that the option of soliciting hard money for state and local candidates is an illusory one, since several States prohibit state and local candidates from establishing multiple campaign accounts, which would preclude them from establishing separate accounts for federal funds. See Cal. Fair Pol. Practs. Comm'n Advisory Op. A-91-448 (Dec. 16, 1991), 1991 WL 772902; Colo. Const., Art. XXVIII, §2(3); Iowa Code §56.5A (Supp. 2003); and Ohio Rev. Code Ann. §3517.10(J) (Anderson Supp. 2002). Plaintiffs maintain that §323(a) combines with these state laws to make it impossible for state and local candidates to receive hard-money donations. But the challenge we are considering is a facial one, and on its face §323(a) permits solicitations. The fact that a handful of States might interfere with the mechanism Congress has chosen for such solicitations is an argument that may be addressed in an as-applied challenge. Footnote 53Even opponents of campaign finance reform acknowledged that "a prohibition of soft money donations to national party committees alone would be wholly ineffective." The Constitution and Campaign Reform: Hearings on S. 522 before the Senate Committee on Rules and Administration, 106th Cong., 2d Sess., 301 (2000) (statement of Bobby R. Burchfield, Partner, Covington & Burling). Footnote 54Generic campaign activity promotes a political party rather than a specific candidate. 2 U.S.C.A. §431(21). Footnote 55A public communication is "a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising." §431(22). Footnote 56So long as the communication does not constitute voter registration, voter identification, GOTV, or generic campaign activity. §431(20)(B)(i). Footnote 57Unless the contribution is earmarked for federal election activity. §431(20)(B)(ii). Footnote 58The statute gives the FEC responsibility for setting the allocation ratio. §441i(b)(2)(A); see also 11 CFR §300.33(b) (2003) (defining allocation ratios). Footnote 59One former Senator noted: </s> "'The fact is that much of what state and local parties do helps to elect federal candidates. The national parties know it; the candidates know it; the state and local parties know it. If state and local parties can use soft money for activities that affect federal elections, then the problem will not be solved at all. The same enormous incentives to raise the money will exist; the same large contributions by corporations, unions, and wealthy individuals will be made; the federal candidates who benefit from state party use of these funds will know exactly whom their benefactors are; the same degree of beholdenness and obligation will arise; the same distortions on the legislative process will occur; and the same public cynicism will erode the foundations of our democracy--except it will all be worse in the public's mind because a perceived reform was undercut once again by a loophole that allows big money into the system.'" 251 F.Supp. 2d, at 467 (Kollar-Kotelly, J.) (quoting Rudman Decl. ¶ ;19, App. 746). Footnote 60E.g., 251 F.Supp. 2d, at 479 (Kollar-Kotelly, J.) ("'It is ... not uncommon for the RNC to put interested donors in touch with various state parties. This often occurs when a donor has reached his or her federal dollar limits to the RNC, but wishes to make additional contributions to the state party'" (quoting declaration of Thomas Josefiak, RNC Chief Counsel ¶ ;68, App 308)); see also Colorado II, 533 U.S., at 458 (quoting Congressman Wayne Allard's Aug. 27, 1996, fundraising letter informing the recipient that "'you are at the limit of what you can directly contribute to my campaign,'" but "'you can further help my campaign by assisting the Colorado Republican Party'"); 251 F. Supp 2d, at 454 (Kollar-Kotelly, J.) ("'Both political parties have found spending soft money with its accompanying hard money match through their state parties to work smoothly, for the most part, and state officials readily acknowledge they are simply 'pass throughs' to the vendors providing the broadcast ads or direct mail'" (quoting Magleby Expert Report 37, App. 1510-1511.)). Footnote 61The 1998 Senate Report found that, in exchange for a substantial donation to state Democratic committees and candidates, the DNC arranged meetings for the donor with the President and other federal officials. 1 1998 Senate Report 43-44; 2 id., at 2907-2931; 5 id., at 7519. That same Report also detailed how Native American tribes that operated casinos made sizable soft-money contributions to state Democratic committees in apparent exchange for access and influence. 1 id., at 44-46; 2 id., at 3167-3194; see also McCain Decl., Exh. I (Weisskopf, The Busy Back-Door Men, Time, Mar. 31, 1997, p. 40)). Footnote 62Since voter identification is a necessary precondition of any GOTV program, the findings regarding GOTV funding obviously apply with equal force to the funding of voter identification efforts. Footnote 63With respect to GOTV, voter identification, and other generic campaign activity, the FEC has interpreted §323(b) to apply only to those activities conducted after the earliest filing deadline for access to the federal election ballot or, in States that do not conduct primaries, after January 1 of even-numbered years. 11 CFR §100.24(a)(1) (2002). Any activities conducted outside of those periods are completely exempt from regulation under §323(b). Of course, this facial challenge does not present the question of the FEC regulations' constitutionality. But the fact that the statute provides this basis for the FEC reasonably to narrow §301(20)(A)(ii) further calls into question plaintiffs' claims of facial overbreadth. See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Footnote 64We likewise reject the argument that §301(20)(A)(iii) is unconstitutionally vague. The words "promote," "oppose," "attack," and "support" clearly set forth the confines within which potential party speakers must act in order to avoid triggering the provision. These words "provide explicit standards for those who apply them" and "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited." Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). This is particularly the case here, since actions taken by political parties are presumed to be in connection with election campaigns. See Buckley, 413 U.S. 548, 580 (1973). Footnote 65Any doubts that donors would engage in such a seemingly complex scheme are put to rest by the record evidence in Buckley itself. See n.6, supra (setting forth the Court of Appeals' findings regarding the efforts of milk producers to obtain a meeting with White House officials). Footnote 66Section 501(c) organizations are groups generally exempted from taxation under the Internal Revenue Code. 26 U.S.C. §501(a). These include §501(c)(3) charitable and educational organizations, as well as §501(c)(4) social welfare groups. Footnote 67Section 527 "political organizations" are, unlike §501(c) groups, organized for the express purpose of engaging in partisan political activity. They include any "party, committee, association, fund, or other organization (whether or not incorporated) organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures" for the purpose of "influencing or attempting to influence the selection, nomination, or appointment of any individual for Federal, State, or local public office." 26 U.S.C. §527(e). Footnote 68The record shows that many of the targeted tax-exempt organizations engage in sophisticated and effective electioneering activities for the purpose of influencing federal elections, including waging broadcast campaigns promoting or attacking particular candidates and conducting large-scale voter registration and GOTV drives. For instance, during the final weeks of the 2000 presidential campaign, the NAACP's National Voter Fund registered more than 200,000 people, promoted a GOTV hotline, ran three newspaper print ads, and made several direct mailings. 251 F.Supp. 2d, at 348-349 (Henderson, J.). The NAACP reports that the program turned out one million additional African-American voters and increased turnout over 1996 among targeted groups by 22% in New York, 50% in Florida, and 140% in Missouri. Ibid. The effort, which cost $10 million, was funded primarily by a $7 million contribution from an anonymous donor. Id., at 349 (citing cross-examination of Donald P. Green, Yale University 15-20, Exh. 3; see I Defs. Refiling Trs. on Pub. Record); 251 F.Supp. 2d, at 522 (Kollar-Kotelly, J.) (same); id., at 851 (Leon, J.) (same); see also id., at 349 (Henderson, J.) (stating that in 2000 the National Abortion and Reproductive Rights Action League (NARAL) spent $7.5 million and mobilized 2.1 million pro-choice voters (citing declaration of Mary Jane Gallagher, Exec. V. P., NARAL, 8, App. 271-272, ¶ ;24)); 251 F.Supp. 2d, at 522 (Kollar-Kotelly, J.) (same). Footnote 69Notably, the FEC has interpreted §323(d)(2) to permit state, district, and local party committees to solicit donations to §527 organizations that are state-registered PACs, that support only state or local candidates, and that do not make expenditures or disbursements in connection with federal elections. 11 CFR §300.37(a)(3)(iv) (2003). The agency determined that this interpretation of "political committee"--at least with respect to state, district, and local committees--was consistent with BCRA's fundamental purpose of prohibiting soft money from being used in connection with federal elections. 67 Fed. Reg. 49106 (2002). Footnote 70Section 323(e)(1)(B) tightly constrains the ability of federal candidates and officeholders to solicit or spend nonfederal money in connection with state or local elections. Contributions cannot exceed FECA's analogous hard-money contribution limits or come from prohibited sources. In effect, §323(e)(1)(B) doubles the limits on what individuals can contribute to or at the behest of federal candidates and officeholders, while restricting the use of the additional funds to activities not related to federal elections. If the federal candidate or officeholder is also a candidate for state or local office, he or she may solicit, receive, and spend an unlimited amount of nonfederal money in connection with that election, subject only to state regulation and the requirement that such solicitation or expenditures refer only to the relevant state or local office. 2 U.S.C.A. §441i(e)(2). Footnote 71See 148 Cong. Rec. S2143 (Mar. 20, 2002) (statement of Sen. Feingold) (Section 323(f) does not prohibit "spending non-federal money to run advertisements that mention that [state or local candidates] have been endorsed by a Federal candidate or say that they identify with a position of a named Federal candidate, so long as those advertisements do not support, attack, promote or oppose the Federal candidate"). Footnote 72Justice Kennedy faults our "unwillingness" to confront that "Title I's entirety ... look[s] very much like an incumbency protection plan," citing §323(e), which provides officeholders and candidates with greater opportunities to solicit soft money than §§323(a) and (d) permit party officers. Post, at 23-24. But, §323(e) applies to both officeholders and candidates and allows only minimally greater opportunities for solicitation out of regard for the fact that candidates and officeholders, unlike party officers, can never step out of their official roles. Supra, at 70-71; 42 U.S.C.A. §441i(e). Any concern that Congress might opportunistically pass campaign-finance regulation for self-serving ends is taken into account by the applicable level of scrutiny. Congress must show concrete evidence that a particular type of financial transaction is corrupting or gives rise to the appearance of corruption and that the chosen means of regulation are closely drawn to address that real or apparent corruption. It has done so here. At bottom, Justice Kennedy has long disagreed with the basic holding of Buckley and its progeny that less rigorous scrutiny--which shows a measure of deference to Congress in an area where it enjoys particular expertise--applies to assess limits on campaign contributions. Colorado II, 533 U.S., at 465 (Thomas, J., dissenting) (joining Justice Thomas for the proposition that "Buckley should be overrruled" (citation omitted)); Shrink Missouri, 528 U.S., at 405-410 (Kennedy, J., dissenting). Footnote 73BCRA also provides a "backup" definition of "electioneering communication," which would become effective if the primary definition were "held to be constitutionally insufficient by final judicial decision to support the regulation provided herein." 2 U.S.C.A. §434(f)(3)(A)(ii). We uphold all applications of the primary definition and accordingly have no occasion to discuss the backup definition. Footnote 74We then held that, so construed, the expenditure restriction did not advance a substantial government interest, because independent express advocacy did not pose a danger of real or apparent corruption, and the line between express advocacy and other electioneering activities was easily circumvented. Concluding that §608(e)(1)'s heavy First Amendment burden was not justified, we invalidated the provision. Buckley, 424 U.S., at 45-48. Footnote 75Our adoption of a narrowing construction was consistent with our vagueness and overbreadth doctrines. See Broadrick, 413 U.S., at 613; Grayned, 408 U.S., at 108-114. Footnote 76The provision at issue in MCFL--2 U.S.C. §441b (1982 ed.)--required corporations and unions to use separate segregated funds, rather than general treasury moneys, on expenditures made "'in connection with'" a federal election. MCFL, 479 U.S., at 241. We noted that Buckley had limited the statutory term "'expenditure'" to words of express advocacy "in order to avoid problems of overbreadth." 479 U.S., at 248. We held that "a similar construction" must apply to the expenditure limitation before us in MCFL and that the reach of 2 U.S.C. §441b was therefore constrained to express advocacy. 479 U.S., at 249 (emphasis added). Footnote 77As one major-party political consultant testified, "'it is rarely advisable to use such clumsy words as "vote for" or "vote against."'" 251 F.Supp. 2d, at 305 (Henderson, J.) (quoting declaration of Douglas L. Bailey, founder, Bailey, Deardourff & Assoc., 1-2, App. 24, ¶ ;3). He explained: "'All advertising professionals understand that the most effective advertising leads the viewer to his or her own conclusion without forcing it down their throat.'" 251 F.Supp. 2d, at 305 (Henderson, J.). Other political professionals and academics confirm that the use of magic words has become an anachronism. See id., at 531 (Kollar-Kotelly, J.) (quoting declaration of Raymond D. Strother, Pres., Strother/Duffy/Strother ¶ ;4, 9 Defs. Exhs., Tab 40); see Unsealed Pp. Vol., Tab 7); App. 1334-1335 (Krasno & Sorauf Expert Report)); see also 251 F.Supp. 2d, at 305 (Henderson, J.); id., at 532 (Kollar-Kotelly, J.); id., at 875-76 (Leon, J.). Footnote 78One striking example is an ad that a group called "Citizens for Reform" sponsored during the 1996 Montana congressional race, in which Bill Yellowtail was a candidate. The ad stated: </s> "Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail's response? He only slapped her. But 'her nose was not broken.' He talks law and order ... but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments--then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values." 5 1998 Senate Report 6305 (minority views). </s> The notion that this advertisement was designed purely to discuss the issue of family values strains credulity. Footnote 79As discussed below, infra, at 97-103, BCRA §203 bars corporations and labor unions from funding electioneering communications with money from their general treasuries, instead requiring them to establish a "separate segregated fund" for such expenditures. 2 U.S.C.A. §441b(b)(2). Footnote 80Section 401 of BCRA provides: </s> "If any provision of this Act or amendment made by this Act . . ., or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and amendments made by this Act, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding." 2 U.S.C.A. §454 note. Footnote 81The disclosure requirements that BCRA §201 added to FECA §304 are actually somewhat less intrusive than the comparable requirements that have long applied to persons making independent expenditures. For example, the previous version of §304 required groups making independent expenditures to identify donors who contributed more than $200. 2 U. S. C. §434(c)(2)(C) (2000 ed.). The comparable requirement in the amendments applies only to donors of $1,000 or more. 2 U.S.C.A. §§434(f)(2)(E), (F) (Supp. 2003). Footnote 82NAACP v. Alabama arose out of a judgment holding the NAACP in contempt for refusing to produce the names and addresses of its members and agents in Alabama. The NAACP "made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members ha[d] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." 357 U.S., at 462. We thought it apparent that the compelled disclosure would "affect adversely" the NAACP and its members' ability "to pursue their collective effort to foster beliefs which they admittedly have the right to advocate." Id., at 462-463. Under these circumstances, we concluded that Alabama's interest in determining whether the NAACP was doing business in the State was plainly insufficient to justify its production order. Id., at 464-466. Footnote 83We stated: </s> "The District Court properly applied the Buckley test to the facts of this case. The District Court found 'substantial evidence of both governmental and private hostility toward and harassment of [Socialist Workers Party (SWP)] members and supporters.' Appellees introduced proof of specific incidents of private and government hostility toward the SWP and its members within the four years preceding the trial. These incidents, many of which occurred in Ohio and neighboring States, included threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members' property, police harassment of a party candidate, and the firing of shots at an SWP office. There was also evidence that in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership. Although appellants contend that two of the Ohio firings were not politically motivated, the evidence amply supports the District Court's conclusion that 'private hostility and harassment toward SWP members make it difficult for them to maintain employment.' The District Court also found a past history of Government harassment of the SWP." Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 98-99 (1982) (paragraph break omitted). Footnote 84We cannot judge the likelihood that this will occur, as the record contains little if any description of the contractual provisions that commonly govern payments for electioneering communications. Nor does the record contain any evidence relating to Justice Kennedy's speculation, post, at 39-40, that advance disclosure may disadvantage an advertiser. Footnote 85New FECA §315(a)(7)(C) reads as follows: </s> "if -- </s> "(i) any person makes, or contracts to make, any disbursement for any electioneering communication (within the meaning of section 434(f)(3) of this title); and </s> "(ii) such disbursement is coordinated with a candidate or an authorized committee of such candidate, a Federal, State, or local political party or committee thereof, or an agent or official of any such candidate, party, or committee; </s> such disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate's party and as an expenditure by that candidate or that candidate's party. . . ." 2 U.S.C.A. §441a(a)(7)(C). Footnote 86We have explained: </s> "The statutory purpose of §441b ... is to prohibit contributions or expenditures by corporations or labor organizations in connection with federal elections. 2 U.S.C. §441b(a). The section, however, permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of 'separate segregated fund[s],' which may be 'utilized for political purposes.' 2 U.S.C. §441b(b)(2)(C). The Act restricts the operations of such segregated funds, however, by making it unlawful for a corporation to solicit contributions to a fund established by it from persons other than its 'stockholders and their families and its executive or administrative personnel and their families.' 2 U.S.C. §441b(b)(4)(A)." National Right to Work, 459 U.S., at 201-202. Footnote 87The amendment is straightforward. Prior to BCRA, FECA §316(a) made it "unlawful ... for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with" certain federal elections. 2 U.S.C. §441b(a) (2000 ed.). BCRA amends FECA §316(b)(2)'s definition of the term "contribution or expenditure" to include "any applicable electioneering communication." 2 U.S.C.A. §441b(b)(2) (Supp. 2003). Footnote 88As Justice Kennedy emphasizes in dissent, post, at 44-45, we assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads. The premise that apparently underlies Justice Kennedy's principal submission is a conclusion that the two categories of speech are nevertheless entitled to the same constitutional protection. If that is correct, Justice Kennedy must take issue with the basic holding in Buckley and, indeed, with our recognition in First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978), that unusually important interests underlie the regulation of corporations' campaign-related speech. In Bellotti we cited Buckley, among other cases, for the proposition that "[p]reserving the integrity of the electoral process, preventing corruption, and 'sustain[ing] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of the government' are interests of the highest importance." 514 U.S. 334 (1995). Footnote 89In a different but somewhat related argument, one set of plaintiffs contends that political campaigns and issue advocacy involve press activities, and that BCRA therefore interferes with speakers' rights under the Freedom of the Press Clause. U.S. Const., Amdt. 1. We affirm the District Court's conclusion that this contention lacks merit. Footnote 90The statutory scheme is somewhat complex. In its provision dealing with "Rules Relating to Electioneering Communications," BCRA §203(c)(2) (adding FECA §316(c)(2)) makes a blanket exception for designated nonprofit organizations, which reads as follows: </s> "Exception </s> "Notwithstanding paragraph (1), the term 'applicable electioneering communication' does not include a communication by a section 501(c)(4) organization or a political organization (as defined in section 527(e)(1) of Title 26) made under section 434(f)(2)(E) or (F) of this title if the communication is paid for exclusively by funds provided directly by individuals who are United States citizens or nationals or lawfully admitted for permanent residence (as defined in section 1101(a)(20) of Title 8). For purposes of the preceding sentence, the term 'provided directly by individuals' does not include funds the source of which is an entity described in subsection (a) of this section." 2 U.S.C.A. §441b(c)(2) (Supp. 2003). </s> BCRA §204, however, amends FECA §316(c) to exclude "targeted communications" from that exception. New FECA §316(c)(6) states that the §316(c)(2) exception "shall not apply in the case of a targeted communication that is made by an organization described" in §316(b)(2). 2 U.S.C.A. ¶ ;441b(c)(6)(A). Subparagraph (B) then defines the term "targeted communication" for the purpose of the provision as including all electioneering communications. The parties and the judges on the District Court have assumed that amended FECA §316(c)(6) completely canceled the exemption for nonprofit corporations set forth in §316(c)(2). 251 F.Supp. 2d, at 804 (Leon, J.) ("Section 204 completely cancels out the exemption for all nonprofit corporations provided by Section 203"). Footnote 91"[A] unanimous Court in National Right to Work did not think the regulatory burdens on PACs, including restrictions on their ability to solicit funds, rendered a PAC unconstitutional as an advocacy corporation's sole avenue for making political contributions. See 459 U.S., at 201-202. There is no reason to think the burden on advocacy corporations is any greater today, or to reach a different conclusion here." Beaumont, 539 U.S., at ___ (slip op., at 16). Footnote 92New FECA §304(g) provides: </s> "Time for reporting certain expenditures </s> "(1) Expenditures aggregating $1,000 </s> "(A) Initial report </s> "A person (including a political committee) that makes or contracts to make independent expenditures aggregating $1,000 or more after the 20th day, but more than 24 hours, before the date of an election shall file a report describing the expenditures within 24 hours. </s> "(B) Additional reports </s> "After a person files a report under subparagraph (A), the person shall file an additional report within 24 hours after each time the person makes or contracts to make independent expenditures aggregating an additional $1,000 with respect to the same election as that to which the initial report relates." 2 U.S.C.A. §434 (Supp. 2003). Footnote 93New FECA §315(d)(4) reads as follows: </s> "Independent versus coordinated expenditures by party </s> "(A) In general </s> "On or after the date on which a political party nominates a candidate, no committee of the political party may make-- </s> "(i) any coordinated expenditure under this subsection with respect to the candidate during the election cycle at any time after it makes any independent expenditure (as defined in section 431(17) of this title) with respect to the candidate during the election cycle; or </s> "(ii) any independent expenditure (as defined in section 431(17) of this title) with respect to the candidate during the election cycle at any time after it makes any coordinated expenditure under this subsection with respect to the candidate during the election cycle. </s> "(B) Application </s> "For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee. </s> "(C) Transfers </s> "A committee of a political party that makes coordinated expenditures under this subsection with respect to a candidate shall not, during an election cycle, transfer any funds to, assign authority to make coordinated expenditures under this subsection to, or receive a transfer of funds from, a committee of the political party that has made or intends to make an independent expenditure with respect to the candidate." 2 U.S.C.A. §441a(d)(4) (Supp. 2003). Footnote 94After exempting political parties from the general contribution and expenditure limitations of the statute, 2 U.S.C.A. §441a(d)(1), FECA §315(d) imposes the following substitute limitations on party spending: </s> "(2) The national committee of a political party may not make any expenditure in connection with the general election campaign of any candidate for President of the United States who is affiliated with such party which exceeds an amount equal to 2 cents multiplied by the voting age population of the United States (as certified under subsection (e) of this section). Any expenditure under this paragraph shall be in addition to any expenditure by a national committee of a political party serving as the principal campaign committee of a candidate for office of President of the United States. </s> "(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds-- </s> "(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of-- </s> "(i) 2 cents multiplied by the voting age population of the State (as certified under subsection (e) of this section); or </s> "(ii) $20,000; and </s> "(B) in the case of a candidate for election to the officer of Representative, Delegate, or Resident Commissioner in any other State, $10,000." 2 U.S.C. §§441a(d)(2)-(3). Footnote 95As amended by BCRA,§301(17) provides: </s> "Independent expenditure </s> "The term 'independent expenditure' means an expenditure by a person-- </s> "(A) expressly advocating the election or defeat of a clearly identified candidate; and </s> "(B) that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate's authorized political committee, or their agents, or a political party committee or its agents." 2 U.S.C.A. §431(17) (Supp. 2003). </s> The version of the definition prior to its amendment by BCRA also included the phrase "expressly advocating the election or defeat of a clearly identified candidate." 2 U.S.C. §431(17) (2000 ed.). That definition had been adopted in 1976, presumably to reflect the narrowing construction that the Court adopted in Buckley. Federal Election Campaign Act Amendments of 1976, 90 Stat. 475. Footnote 96Although the District Court and all the parties to this litigation endorse the interpretation set forth in the text, it is not clear that subparagraph (B) should be read so broadly: The reference to "a State" instead of "the States" suggests that Congress meant to distinguish between committees associated with the party for each State (which would be grouped together by State, with each grouping treated as a single committee for purposes of the choice) and committees associated with a national party (which would likewise be grouped together and treated as a separate political committee). We need not resolve the interpretive puzzle, however, because even under the more limited reading a local party committee would be able to tie the hands of a state committee or other local committees in the same State. Footnote 97The italicized portion of the following partial quotation of FECA §315(a)(7) was added by §214 of BCRA: </s> "For purposes of this subsection-- </s> "(A) contributions to a named candidate made to any political committee authorized by such candidate to accept contributions on his behalf shall be considered to be contributions made to such candidate; </s> "(B)(i) expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate; </s> "(ii) expenditures made by any person (other than a candidate or candidate's authorized committee) in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party, shall be considered to be contributions made to such party committee ...." 2 U.S.C.A. §441a(a)(7) (Supp. 2003). Footnote 98Pre-BCRA FEC regulations defined coordinated expenditures to include expenditures made "[a]t the request or suggestion of" a candidate or party; communications in which a candidate or party "exercised control or decision-making authority over the content, timing, location, mode, intended audience, volume of distribution, or frequency of placement"; and communications produced "[a]fter substantial discussion or negotiation" with a party or candidate, "the result of which is collaboration or agreement." 11 CFR §100.23(c)(2) (2001). Footnote 99Contrary to plaintiffs' contention, the statutory framework was not significantly different at the time of our decision in Buckley. The relevant provision, 18 U.S.C. §608(e)(1), treated as coordinated any expenditures "authorized or requested by the candidate." (Emphasis added.) And the legislative history, on which we relied for "guidance in differentiating individual expenditures that are contributions ... from those treated as independent expenditures," described as "independent" an expenditure made by a supporter "'completely on his own, and not at the request or suggestion of the candidate or his agen[t].'" 424 U.S., at 46-47, n. 53 (quoting S.Rep. No. 93-689, p.18 (1974)). FOOTNOTESFootnote **Justice O'Connor, Justice Scalia, Justice Kennedy, and Justice Souter join this opinion in its entirety. Justice Stevens, Justice Ginsburg, and Justice Breyer join this opinion, except with respect to BCRA §305. Justice Thomas joins this opinion with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Footnote 1To qualify for increased candidate contribution limits, the "opposition personal funds amount," which depends on expenditures by a candidate and her self-financed opponent, must exceed a "threshold amount." 2 U.S.C.A. §§441a(i)(1)(D), 441a-1(a)(2)(A) (Supp. 2003). Footnote 2If the "opposition personal funds amount" is at least 10 times the "threshold amount" in a Senate race, or exceeds $350,000 in a House of Representatives race, the coordinated party expenditure limits do not apply. §§441a(i)(1)(C)(iii), 441a-1(a)(1)(C). Footnote 3Although some examples were presented to the District Court, 251 F.Supp. 2d 176, 588-590 (2003) (Kollar-Kotelly, J.), none were offered to this Court. FOOTNOTESFootnote **Justice Stevens, Justice O'Connor, Justice Souter, and Justice Ginsburg join this opinion in its entirety. FOOTNOTESFootnote **Justice Scalia and Justice Kennedy join this opinion in itsentirety. Footnote 1The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties. Footnote 2Ironically, in the Court's view, Congress cannot be trusted to exercise judgment independent of its parties' large donors in its usual voting decisions because donations may be used to further its members' reelection campaigns, but yet must be deferred to when it passes a comprehensive regulatory regime that restricts election-related speech. It seems to me no less likely that Congress would create rules that favor its Members' reelection chances, than be corrupted by the influx of money to its political parties, which may in turn be used to fund a portion of the Members' reelection campaigns. Footnote 3The Court's suggestion that the "close relationship" between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n.15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a "close relationship" with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates. Footnote 4BCRA does not even close all of the "loopholes" that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F.Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next "loophole" will be. Footnote 5Section 315(e), as amended by BCRA §504, provides: </s> "Political record </s> "(1) In general </s> "A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that-- </s> "(A) is made by or on behalf of a legally qualified candidate for public office; or </s> "(B) communicates a message relating to any political matter of national importance, including-- </s> "(i) a legally qualified candidate; </s> "(ii) any election to Federal office; or </s> "(iii) a national legislative issue of public importance. </s> "(2) Contents of record </s> "A record maintained under paragraph (1) shall contain information regarding-- </s> "(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; </s> "(B) the rate charged for the broadcast time; </s> "(C) the date and time on which the communication is aired; </s> "(D) the class of time that is purchased; </s> "(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); </s> "(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and </s> "(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. </s> "(3) Time to maintain file </s> "The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years." Footnote 6Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations. FOOTNOTESFootnote **Justice Ginsburg and Justice Breyer join this opinion in itsentirety. Footnote †Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). FOOTNOTESFootnote **It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: "[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist." Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953). FOOTNOTESFootnote **Justice Scalia joins Parts I, II-A, and II-B of this opinion. Footnote 1The Court also rejected an overbreadth challenge, reasoning that "Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated." Buckley, 424 U.S., at 30. But this justification was inextricably intertwined with the Court's concern over the difficulty of isolating suspect contributions. If it were easy to isolate suspect contributions, and if bribery laws could be quickly and effectively enforced, then there would be no "opportunity for abuse inherent in the process," ibid., and hence no need for an otherwise overbroad contribution ceiling. Footnote 2Arguably, the current antibribery statute, 18 U.S.C. §201, is broad enough to cover the unspecified other "attempts ... to influence governmental action" that the Buckley Court seemed worried about. 424 U.S., at 28. Footnote 3Indeed, the principal contents of Senator McCain's declaration are his complaints that several bills he supported were defeated. The Senator also suggests, without evidence, that there had been some connection between the defeat of his favored policy outcomes and certain soft-money donors. See, e.g., App. 393-394, ¶ ;10 (declaration of Sen. John McCain ¶ ;10) (noting Democratic "parliamentary procedural device" used to block one of Senator McCain's proposed amendments to the Sarbanes-Oxley corporate governance bill). The possibility that his favored policy outcomes lost due to lack of public support, or because the opponents of the amendment honestly believed it would do harm to the public, does not appear to be addressed. Footnote 4Former Senators Simpson and Simon both seem to have the same response as Senator McCain, see n.3, supra, in having their favored interests voted down, and similarly do not consider alternative explanations for the failure of their proposals. See App. 811, ¶ ;11 (declaration of former Sen. Alan Simpson ¶ ;11); App. 805, ¶ ;14 (declaration of former Sen. Paul Simon ¶ ;14). Footnote 5Because there is not an iota of evidence supporting the Government's asserted interests in BCRA §318, I concur in the Court's conclusion that this provision is unconstitutional. Footnote 6The joint opinion continues yet another disturbing trend: the application of a complaisant level of scrutiny under the guise of "strict scrutiny." See Grutter v. Bollinger, 539 U.S. ___ (2003). Footnote 7This is doubly so now that the Court has decided that there is no constitutional need for the showing even of an "agreement" in order to transform an expenditure into a "coordinated expenditur[e]" and hence into a contribution for FECA purposes. Ante, at 115-117 (joint opinion). Footnote 8The National Rifle Association (NRA) plaintiffs compellingly state that "[a]s a measure designed to prevent official corruption, of either the quid pro quo or the 'gratitude' variety, Title II ... makes no more sense than a bribery statute requiring corporations to pay for their bribes using funds from PACs." Brief for Appellants NRA etal. in No. 02-1675, pp.24-25. And, regarding the appearance of corruption: "Defendants' own witnesses concede that the public's perceptions of ads is not affected in the slightest by whether they are purchased with general treasury funds or with PAC money." Id., at 25. Footnote 9The fact that the Founders located the right to anonymous speech in the "freedom of the press" is of no moment, as "it makes little difference in terms of our analysis, which seeks to determine only whether the First Amendment, as originally understood, protects anonymous writing." McIntyre, 514 U.S., at 360 (Thomas, J., concurring). Footnote 10BCRA §212(a) is also unconstitutional. Although the plaintiffs only challenge the advance disclosure requirement of §212(a), by requiring disclosure of communications using express advocacy, the entire reporting requirement is unconstitutional for the same reasons that §201 is unconstitutional. Consequently, it follows that the advance disclosure provision is unconstitutional. </s> BCRA §§311 and 504 also violate the First Amendment. By requiring any television or radio advertisement that satisfies the definition of "electioneering communication" to include the identity of the sponsor, and even a "full-screen view of a representative of the political committee or other person making the statement" in the case of a television advertisement, new FECA §318, §311 is a virtual carbon copy of the law at issue in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) (the only difference being the irrelevant distinction between a printed pamphlet and a television or radio advertisement). And §504 not only has the precise flaws of §201, but also sweeps broadly as well, covering any "message relating to any political matter of national importance, including ... a national legislative issue of public importance." Hence, both §§311 and 504 should be struck down. Footnote 11The Court, in upholding most of its provisions by concluding that the "express advocacy" limitation derived by Buckley is not a constitutionally mandated line, has, in one blow, overturned every Court of Appeals that has addressed this question (except, perhaps, one). See Clifton v. FEC, 114 F.3d 1309, 1312 (CA1 1997); Vermont Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 387 (CA2 2000); FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1064 (CA4 1997); Chamber of Commerce v. Moore, 288 F.3d 187, 193 (CA5 2000); Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 968-970 (CA8 1999); Citizens for Responsible Govt. State Political Action Comm. v. Davidson, 236 F.3d 1174, 1187 (CA10 2000). The one possible exception is the Ninth Circuit. See FEC v. Furgatch, 807 F.2d 857, 862-863 (1987). Footnote 12After all, the constitutional avoidance doctrine counsels us to adopt constructions of statutes to "avoid decision of constitutional questions," not to deliberately create constitutional questions. United States v. Thirty-seven Photographs, 402 U.S. 363, 373 (1971); see also United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909). Footnote 13This very case is an excellent example of why such a bright-line rule is necessary. The Court, having "rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy," ante, at 87-88, proceeds to uphold significant new restrictions on speech that is, in every sense of the word, pure issue-related speech. The Court abandons the bright-line rule, and now subjects political speech of virtually any kind to the risk of regulation by Congress. Footnote 14Chief Justice Burger presciently commented on precisely this point in First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 796-797 (1978) (citations omitted): </s> "In terms of 'unfair advantage in the political process' and 'corporate domination of the electoral process,' it could be argued that such media conglomerates as I describe pose a much more realistic threat to valid interests than do appellants and similar entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing Co. v. Tornillo, [418 U.S. 241 (1974)]. In Tornillo, for example, we noted the serious contentions advanced that a result of the growth of modern media empires 'has been to place in a few hands the power to inform the American people and shape public opinion.' 418 U.S., at 250." Footnote 15It appears that "circumvention" of the campaign finance laws by exploiting media exemptions is already being planned by one of the plaintiffs in this litigation. See Theimer, NRA Seeks Status as News Outlet, Washington Post A09 (Dec. 7, 2003) (reporting that the NRA is looking to acquire a broadcast outlet and seeking to be classified as a news organization). Footnote 16Given the quality of the evidence the Court relies upon to uphold Title I, the evidence should not be hard to come by. See Kane & Preston, Fox Chief on Hot Seat, Roll Call (June 12, 2003) ("GOP leaders such as House Majority Leader Tom DeLay (R-Texas) have labeled CNN as the 'Communist News Network' and the 'Clinton News Network'--suggesting they only presented the liberal viewpoint and that of former President Clinton"); Jones, Fox News Moves from the Margins to the Mainstream, Shorenstein Center, Harvard (Dec. 1, 2002) (quoting Al Gore as describing Fox News and the Washington Times as "part and parcel of the Republican Party"). Footnote 17See also 4 W. Blackstone, Commentaries on the Laws of England 151 (1769) ("The liberty of the press is indeed essential to the nature of a free state"). FOOTNOTESFootnote **The Chief Justice joins this opinion in its entirety. Justice Scalia joins this opinion except to the extent it upholds new FECA §323(e)and BCRA §202. Justice Thomas joins this opinion with respect to BCRA §213. Footnote †See also Federal Election Commission v. Beaumont, 539 U.S. ___, ___ (2003) (slip op., at 14) ("[T]he basic premise we have followed in setting First Amendment standards for reviewing political financial restrictions [is that] the level of scrutiny is based on the importance of the 'political activity at issue' to effective speech or political association"); California Democratic Party v. Jones, 530 U.S. 567, 582 (2000) ("We can think of no heavier burden on a political party's associational freedom. Proposition 198 is therefore unconstitutional unless it is narrowly tailored to serve a compelling state interest").

United States Supreme Court DEPARTMENT OF ENERGY v. OHIO(1992) No. 90-1341 Argued: December 3, 1991Decided: April 21, 1992 </s> The Clean Water Act (CWA) and the Resource Conservation and Recovery Act of 1976 (RCRA) prohibit the discharge or disposal of pollutants without a permit, assign primary authority to issue permits to the Environmental Protection Agency (EPA), and allow EPA to authorize a State to supplant the federal permit program with one of its own under specified circumstances. Respondent State sued petitioner Department of Energy (DOE) over its operation of a uranium processing plant in Ohio, seeking, among other relief, both state and federal civil penalties for past violations of the CWA and RCRA and of state laws enacted to supplant those federal statutes. Although conceding, inter alia, that both statutes render federal agencies liable for "coercive" fines imposed to induce compliance with injunctions or other judicial orders designed to modify behavior prospectively, DOE asserted sovereign immunity from liability for "punitive" fines imposed to punish past violations. The District Court held that both statutes waived federal sovereign immunity from punitive fines, by both their federal facilities and citizen suit sections. The Court of Appeals affirmed in part, holding that Congress had waived immunity as to punitive fines in the CWA's federal facilities section and RCRA's citizen suit section, but not in RCRA's federal facilities section. </s> Held: </s> Congress has not waived the National Government's sovereign immunity from liability for civil fines imposed by a State for past violations of the CWA or RCRA. Pp. 615-629. </s> (a) This Court presumes congressional familiarity with the common rule that any waiver of the Government's sovereign immunity must be unequivocal. See United States v. Mitchell, 445 U.S. 535, 538 -539. Such waivers must be construed strictly in favor of the sovereign, and not enlarged beyond what the language requires. See, e.g., Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 -686. P. 5. </s> (b) Although both the CWA and RCRA citizen suit sections authorize a State to commence a civil action "against any person (including . . . [503 U.S. 607, 608] the United States . . .)," and authorize the district courts to impose punitive fines under the Acts' civil penalties sections, the incorporation of the latter sections must be read to encompass their exclusion of the United States from among the "person[s]" who may be fined, see, e.g., Engel v. Davenport, 271 U.S. 33, 38 . The citizen suit sections' initial inclusion of the United States as a "person" goes only to the clauses subjecting the Government to suit, and a broader waiver may not be inferred. Both the CWA and RCRA contain various provisions expressly defining "person" for purposes of the entire section in which the term occurs, thereby raising the inference that a special definition not described as being for purposes of its "section" or "subchapter" was intended to have the more limited application to its own clause or sentence. This textual analysis gives effect to all the language of the citizen suit sections, since their incorporations of their statutes' civil penalties sections will effectively authorize punitive fines where a polluter other than the United States is brought to court, while their explicit authorizations for suits against the United States concededly authorize coercive sanctions. Pp. 615-620. </s> (c) The relevant portion of the CWA's federal facilities section, 33 U.S.C. 1323(a) - which, inter alia, subjects the Government to "all . . . State . . . requirements . . . and process and sanctions;" explains that the Government's corresponding liability extends to "any requirement, whether substantive or procedural . . ., and . . . to any process and sanction . . . enforced in . . . cour[t];" and provides that the Government "shall be liable only for those civil penalties arising under Federal law or imposed by a State . . . court . . . to enforce [its] order or . . . process" - does not waive the Government's immunity as to punitive fines. Ohio's first argument, that 1323(a)'s use of the word "sanction" must be understood to encompass punitive fines, is mistaken, as the term's meaning is spacious enough to cover coercive, as well as punitive, fines. Moreover, good reason to infer that Congress was using "sanction" in its coercive sense, to the exclusion of punitive fines, lies in the fact that 1323(a) twice speaks of "sanctions" in conjunction with judicial "process," which is characteristically "enforced" through forward-looking coercive measures, and distinguishes "process and sanctions" from substantive "requirements," which may be enforced either by coercive or punitive means. Pp. 620-623. </s> (d) Ohio's second 1323(a) argument, that fines authorized under an EPA-approved state permit program are within the scope of the "civil penalties" covered by the section's final waiver proviso, also fails. The proviso's second modifier makes it plain that "civil penalties" must at least include a coercive penalty, since they are exemplified by penalties "imposed by a State . . . court to enforce [its] order." Moreover, the [503 U.S. 607, 609] contention that the proviso's "arising under federal law" modifier is broad enough to include penalties prescribed by EPA-approved state statutes supplanting the CWA is answered by this Court's interpretation of the phrase "arising under" federal law in 28 U.S.C. 1331 to exclude cases in which the plaintiff relies on state law, even when the State's exercise of power in the particular circumstances is expressly permitted by federal law, see, e.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 116 , and by the probability that Congress adopted the same interpretation of "arising under federal law" here, see, e.g., ICC v. Locomotive Engineers, 482 U.S. 270, 284 -285. The plain language of the "civil penalties arising under federal law" phrase suggests an apparently expansive, but uncertain, waiver that is in tension with the clear waiver for coercive fines evinced in 1323(a)'s antecedent text; that tension is resolved by the requirement that any statement of waiver be unequivocal and the rule that waivers be narrowly construed. Pp. 623-627. </s> (e) RCRA's federal facilities section - which, in relevant part, subjects the Government to "all . . . State . . . requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief)," and provides that the United States "shall [not] be immune . . . from any process or sanction of any . . . Court with respect to the enforcement of any such injunctive relief" - is most reasonably interpreted as including substantive standards and the coercive means for implementing those standards, but excluding punitive measures. All of the textual indications of the kinds of requirements meant to bind the Government refer either to mechanisms requiring review for substantive compliance (permit and reporting requirements) or to mechanisms for enforcing substantive compliance in the future (injunctive relief and sanctions to enforce it), in stark contrast to the statute's failure to mention any mechanism for penalizing past violations. Moreover, the fact that the only specific reference to an enforcement mechanism in the provision's final sentence describes "sanction" as a coercive means of injunctive enforcement bars any inference that a waiver of immunity from "requirements" somehow extends to punitive fines that are never so much as mentioned. Pp. 627-628. </s> 904 F.2d 1058 (CA6 1990), reversed and remanded. </s> SOUTER, J., delivered the opinion for an unanimous Court with respect to Part II-C, and the opinion of the Court with respect to Parts I, II-A, II-B, and III, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. WHITE, J., filed an opinion concurring [503 U.S. 607, 610] in part and dissenting in part, in which BLACKMUN and STEVENS, JJ., joined, post, p. 629.Fn </s> James A. Feldman argues the cause for petitioner in No. 90-1341 and respondent in No. 90-1517. With him on the briefs were Solicitor General Starr, acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, and Jacques B. Gelin. </s> Jack A. Van Kley, Assistant Attorney General of Ohio, argued the cause for respondents in No. 90-1341 and petitioners in No. 90-1517. With him on the brief were Lee Fisher, Attorney General, and Timothy J. Kern and Terrence S. Finn, Assistant Attorneys General.Fn </s> Fn [503 U.S. 607, 610] Briefs of amici curiae wee filed for the State of California et al. by Gale A. Norton, Attorney General of Colorado, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Martha E. Rudolph, Cynthia M. Vagelos, and Mary Capdeville, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Theodora Berger and R. H. Connett, Senior Assistant Attorneys General, Edwin F. Lowry, Deputy Attorney General, Charles E. Cole, Attorney General of Alaska, Grant woods, Attorney General of Arizona, Paige Murphy-Young, Assistant Attorney General, Winston Bryant, Attorney General of Arkansas, Richard Blumenthal, Attorney General of Connecticut, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Kentucky, Michael E. Carpenter, Attorney General of Maine, Dennis J. Harnish, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, T. Travis Medlock, Attorney General of South Carolina, Charles W. Burson, Attorney General of Tennessee, Michael D. Pearigen, Deputy Attorney General, Dan Morales, Attorney General of Texas, Thomas Edwards, Assistant Attorney General, Paul Van Dam, Attorney [503 U.S. 607, 611] General of Utah, Denise Chancellor, Assistant Attorney General, Jeffrey L. Amestoy Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, Patrick O'Hare, Senior Assistant Attorney General, Kenneth O. Eikenberry, Attorney General of Washington, James K. Pharris, Senior Assistant Attorney General, and Jay J. Manning, Assistant Attorney General; for the Natural Resources Defense Council by Philip F. W. Ahrens III; and for the National Governors' Association et al. by Richard Ruda, Donald B. Verrilli, Jr., and Barry Levenstam. [503 U.S. 607, 611] </s> JUSTICE SOUTER delivered the opinion of the Court. </s> The question in these cases is whether Congress has waived the National Government's sovereign immunity from liability for civil fines imposed by a State for past violations of the Clean Water Act (CWA), 86 Stat. 816, as amended, 33 U.S.C. 1251 et seq., or the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2795, 2796, as amended, 42 U.S.C. 6901 et seq. We hold it has not done so in either instance. </s> I </s> The CWA prohibits the discharge of pollutants into navigable waters without a permit. Section 402, codified at 33 U.S.C. 1342, gives primary authority to issue such permits to the United States Environmental Protection Agency (EPA), but allows EPA to authorize a State to supplant the federal permit program with one of its own if the state scheme would include, among other features, sufficiently stringent regulatory standards and adequate provisions for penalties to enforce them. See generally 33 U.S.C. 1342(b) (requirements and procedures for EPA approval of state water pollution permit plans); see also 40 CFR 123.1-123.64 (1991) (detailed requirements for state plans). RCRA regulates the disposal of hazardous waste in much the same way, with a permit program run by EPA, but subject to displacement by an adequate state counterpart. See generally 42 U.S.C. 6926 (requirements and procedures for EPA [503 U.S. 607, 612] approval of state hazardous waste disposal permit plans); see also 40 CFR 271.1-271.138 (1991) (detailed requirements for state plans). </s> This litigation began in 1986, when respondent State of Ohio sued petitioner Department of Energy (DOE) in Federal District Court for violations of state and federal pollution laws, including the CWA and RCRA, in operating its uranium processing plant in Fernald, Ohio. Ohio sought, among other forms of relief, both state and federal civil penalties for past violations of the CWA and RCRA and of state laws enacted to supplant those federal statutes. See, e.g., Complaint 164 (seeking penalties for violations of state law and of regulations issued pursuant to RCRA); id. § 115 (seeking penalties for violations of state law and of CWA). 1 Before the District Court ruled on DOE's motion for dismissal, the parties proposed a consent decree to settle all but one substantive claim, 2 and Ohio withdrew all outstanding claims for relief except its request for civil penalties for DOE's alleged past violations. See Consent Decree Between DOE and Ohio, App. 63. By a contemporaneous stipulation, DOE and Ohio agreed on the amount of civil penalties DOE will owe if it is found liable for them, see Stipulation Between DOE and Ohio, id., at 87. The parties thus left for determination under the motion to dismiss only the issue we consider today: whether Congress has waived the National Government's sovereign immunity from liability for civil fines imposed for past failure to comply [503 U.S. 607, 613] with the CWA, RCRA, or state law supplanting the federal regulation. </s> DOE admits that the CWA and RCRA obligate a federal polluter, like any other, to obtain permits from EPA or the state permitting agency, see Brief for Petitioner DOE 24 (discussing CWA); id., at 34-40 (discussing RCRA). 3 DOE also concedes that the CWA and RCRA render federal agencies liable for fines imposed to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively, which we will speak of hereafter as "coercive fines." See id., at 19-20, and n. 10; see also n. 14, infra. The parties disagree only on whether the CWA and RCRA, in either their "federal facilities" 4 or "citizen suit" 5 sections, waive federal sovereign immunity from liability for fines, [503 U.S. 607, 614] which we will refer to as "punitive," imposed to punish past violations of those statutes or state laws supplanting them. </s> The United States District Court for the Southern District of Ohio held that both statutes waived federal sovereign immunity from punitive fines, by both their federal facilities and citizen suit sections. 689 F.Supp. 760 (1988). A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed in part, holding that Congress had waived immunity from punitive fines in the CWA's federal facilities section and RCRA's citizen suit section, but not in RCRA's federal facilities section. 904 F.2d 1058 (1990). 6 Judge Guy dissented, concluding that neither the CWA's federal facilities section nor RCRA's citizen suit section sufficed to provide the waiver at issue. Id., at 1065-1069. </s> In No. 90-1341, DOE petitioned for review insofar as the Sixth Circuit found any waiver of immunity from punitive fines, while, in No. 90-1517, Ohio cross-petitioned on the holding that RCRA's federal facilities section failed to effect such a waiver. 7 We consolidated the two petitions and granted certiorari, 500 U.S. 951 (1991). 8 </s> [503 U.S. 607, 615] </s> II </s> We start with a common rule, with which we presume congressional familiarity, see McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 496 (1991), that any waiver of the National Government's sovereign immunity must be unequivocal, see United States v. Mitchell, 445 U.S. 535, 538 -539 (1980). "Waivers of immunity must be "construed strictly in favor of the sovereign," McMahon v. United States, 342 U.S. 25, 27 (1951), and not "enlarge[d] . . . beyond what the language requires." Eastern Transportation Co. v. United States, 272 U.S. 675, 686 (1927). Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 -686 (1983). By these lights, we examine first the two statutes' citizen suit sections, which can be treated together because their relevant provisions are similar, then the CWA's federal facilities section, and, finally, the corresponding section of RCRA. </s> A </s> So far as it concerns us, the CWA's citizen-suit section reads that </s> "any citizen may commence a civil action on his own behalf - </s> "(1) against any person (including . . . the United States . . .) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation. . . . </s> * * * * * </s> "The district courts shall have jurisdiction . . . to enforce an effluent standard or limitation, or such an order . . . as the case may be, and to apply any appropriate civil [503 U.S. 607, 616] penalties under [33 U.S.C. 1319(d)]." 33 U.S.C. 1365(a). </s> The relevant part of the corresponding section of RCRA is similar: </s> "[A]ny person may commence a civil action on his own behalf - </s> "(1)(A) against any person (including . . . the United States) . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter . . . </s> "(B) against any person, including the United States . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. . . . </s> * * * * * </s> ". . . The district court shall have jurisdiction . . . to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both, . . . and to apply any appropriate civil penalties under [42 U.S.C. 6928(a) and (g)]. 42 U.S.C. 6972(a). </s> A State is a "citizen" under the CWA and a "person" under RCRA, 9 and is thus entitled to sue under these provisions. </s> Ohio and its amici argue that, by specifying the United States as an entity subject to suit and incorporating the civil [503 U.S. 607, 617] penalties sections of the CWA and RCRA into their respective citizen suit sections, "Congress could not avoid noticing that its literal language subject[ed] federal entities to penalties." Brief for Respondent Ohio 36; see also, e.g., Brief for National Governors' Association et al. as Amici Curiae 14-16. It is undisputed that each civil penalties provision authorizes fines of the punitive sort. </s> The effect of incorporating each statute's civil penalties section into its respective citizen suit section is not, however, as clear as Ohio claims. The incorporations must be read as encompassing all the terms of the penalty provisions, including their limitations, see, e.g., Engel v. Davenport, 271 U.S. 33, 38 (1926) (adoption of earlier statute by reference "makes it as much a part of the later act as though it had been incorporated at full length"); see also 2B N. Singer, Sutherland on Statutory Construction 51.08 (5th rev. ed. 1992), and significant limitations for present purposes result from restricting the applicability of the civil-penalties sections to "person[s]." 10 While both the CWA and RCRA define "person" to cover States, subdivisions of States, municipalities, and interstate bodies (and RCRA even extends the term to cover governmental corporations), 11 neither statute define "person" to include the United States. 12 Its omission has to be [503 U.S. 607, 618] seen as a pointed one when so many other governmental entities are specified, see 2A Singer, supra, 47.23, a fact that renders the civil penalties sections inapplicable to the United States. </s> Against this reasoning, Ohio argues that the incorporated penalty provisions' exclusion of the United States is overridden by the National Government's express inclusion as a "person" by each of the citizen suit sections. There is, of course, a plausibility to the argument. Whether that plausibility suffices for the clarity required to waive sovereign immunity is, nonetheless, an issue we need not decide, for the force of Ohio's argument wanes when we look beyond the citizen suit sections to the full texts of the respective statutes. </s> What we find elsewhere in each statute are various provisions specially defining "person" and doing so expressly for purposes of the entire section in which the term occurs. Thus, for example, "[f]or the purpose of this [CWA] section," 33 U.S.C. 1321(a)(7) defines "person" in such a way as to exclude the various governmental entities included in the general definition of "person" in 33 U.S.C. 1362(5). 13 Again, "[f]or the purpose of this section," 1322(a)(8) defines "person" so as to exclude "an individual on board a public vessel" as well as the governmental entities falling within the general definition. Similarly in RCRA, "[f]or the purpose of . . . subchapter [IX]" the general definition of "person" is expanded to include "the United States Government," among other entities. 42 U.S.C. 6991(6). Within each statute, then, there is a contrast between drafting that merely redefines "person" when it occurs within a particular clause or sentence and drafting that expressly alters the definition for any and all purposes of the entire section in [503 U.S. 607, 619] which the special definition occurs. 14 Such differences in treatment within a given statutory text are reasonably understood to reflect differences in meaning intended, see 2A Singer, supra, 46.06, and the inference can only be that a special definition not described as being for purposes of the "section" or "subchapter" in which it occurs was intended to have the more limited application to its own clause or sentence alone. Thus, in the instances before us here, the inclusion of the United States as a "person" must go to the clauses subjecting the United States to suit, but no further. </s> This textual analysis passes the test of giving effect to all the language of the citizen suit sections. Those sections' incorporations of their respective statutes' civil penalties sections will have the effect of authorizing punitive fines when a polluter other than the United States is brought to court by a citizen, while the sections' explicit authorizations for suits against the United States will likewise be effective, since those sections concededly authorize coercive sanctions against the National Government. 15 </s> A clear and unequivocal waiver of anything more cannot be found; a broader waiver may not be inferred, see Ruckelshaus, [503 U.S. 607, 620] 463 U.S., at 685 -686. Ohio's reading is therefore to be rejected. See United States v. Nordic Village Inc., ante, at 37. </s> B </s> The relevant portion of the CWA's federal facilities section provides that </s> "[e]ach department, agency, or instrumentality of the . . . Federal Government . . . shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner . . . as any nongovernmental entity. . . . The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. . . . [T]he United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court." 33 U.S.C. 1323(a). </s> Ohio rests its argument for waiver as to punitive fines on two propositions: first, that the statute's use of the word "sanction" must be understood to encompass such fines, see Brief for Respondent Ohio 26-29; and, second, with respect to the fines authorized under a state permit program approved by EPA, that they "aris[e] under Federal law" despite their genesis in state statutes, and are thus within the scope of the "civil penalties" covered by the congressional waiver, id., at 29-35. [503 U.S. 607, 621] </s> 1 </s> Ohio's first proposition is mistaken. As a general matter, the meaning of "sanction" is spacious enough to cover not only what we have called punitive fines, but coercive ones as well, and use of the term carries no necessary implication that a reference to punitive fines is intended. One of the two dictionaries Ohio itself cites reflects this breadth. See Black's Law Dictionary 1341 (6th ed. 1990) (defining "sanction" as a "[p]enalty or other mechanism of enforcement used to provide incentives for obedience with the law or with rules and regulations. That part of a law which is designed to secure enforcement by imposing a penalty for its violation or offering a reward for its observance"). Ohio's other such source explicitly adopts the coercive sense of the term. See Ballentine's Law Dictionary 1137 (3d ed. 1969) (defining sanction in part as "[a] coercive measure"). </s> Beyond the dictionaries, examples of usage in the coercive sense abound. See, e.g., Penfield Co. of Cal. v. SEC, 330 U.S. 585, 590 (1947) (fines and imprisonment imposed as "coercive sanctions" when imposed to compel target "to do what the law made it his duty to do"); Hicks v. Feiock, 485 U.S. 624, 633 -634 n. 6 (1988) ("sanction" in Penfield was civil, because it was conditional; contemnor could avoid "sanction" by agreeing to comply with discovery order); Fed.Rule Civ.Proc. 37(b) (describing as "sanctions" various steps district court may take in response to noncompliance with discovery orders, including holding recalcitrant deponent in contempt); United States v. Westinghouse Elec. Corp., 648 F.2d 642, 649 (CA9 1981) (discussing "sanctions," imposed pursuant to Fed.Rule Civ.Proc. 37(b), consisting of fine for each day litigant remained in noncompliance with District Court's discovery order); Latrobe Steel Co. v. United Steelworkers of America, Local 1537, 545 F.2d 1336, 1344 (CA3 1976) ("Coercive sanctions . . . look to the future, and are designed to aid the plaintiff by bringing a defiant party into compliance with the [503 U.S. 607, 622] court order or by assuring that a potentially contumacious party adheres to an injunction by setting forth in advance the penalties the court will impose if the party deviates from the path of obedience"); Vincent v. Preiser, 175 W. Va. 797, 803, 338 S. E. 2d 398, 403 (1985) (discussing contempt "sanctions" imposed "to compel compliance with a court order"); Maltaman v. State Bar of Cal., 43 Cal.3d 924, 936, 239 Cal.Rptr. 687, 692, 741 P.2d 185, 189-190 (1987) (describing as "sanctions" daily fine imposed on party until it complied with order directing it to transfer certain property); Labor Relations Comm'n v. Fall River Educators' Assn., 382 Mass. 465, 475-476, 416 N. E. 2d 1340, 1347 (1981) (affirming propriety of imposition of "coercive contempt sanction"); Cal.Civ.Proc.Code Ann. 2023(b)(4) (West Supp. 1992) (authorizing, in response to litigant's failure to obey discovery order, "terminating sanction[s]," including "contempt sanction[s]" and orders staying further proceedings by recalcitrant litigant). Cf. 42 U.S.C. 6992e(a) (waiving federal medical waste disposal facilities' sovereign immunity from various requirements, including such "sanctions as may be imposed by a court to enforce [injunctive] relief"); id. 6961 (using same language to waive other federal facilities' immunity from RCRA provisions). Thus, resort to a "sanction" carries no necessary implication of the punitive, as against the coercive. </s> The term's context, of course, may supply a clarity that the term lacks in isolation, see, e.g., Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19, 26 (1988). It tends to do so here, but once again the clarity so found cuts against Ohio's position. The word "sanction" appears twice in 1323(a), each time within the phrase "process and sanction[s]." The first sentence subjects Government agencies to "process and sanctions," while the second explains that the Government's corresponding liability extends to "any process and sanction, whether enforced in Federal, State, or local courts or in any other manner." [503 U.S. 607, 623] </s> Three features of this context are significant. The first is the separate statutory recognition of three manifestations of governmental power to which the United States is subjected: substantive and procedural requirements; administrative authority; and "process and sanctions," whether "enforced" in courts or otherwise. Substantive requirements are thus distinguished from judicial process, even though each might require the same conduct, as when a statute requires and a court orders a polluter to refrain from discharging without a permit. The second noteworthy feature is the conjunction of "sanction[s]" not with the substantive "requirements," but with "process," in each of the two instances in which "sanction" appears. "Process" normally refers to the procedure and mechanics of adjudication and the enforcement of decrees or orders that the adjudicatory process finally provides. The third feature to note is the statute's reference to "process and sanctions" as "enforced" in courts or otherwise. Whereas we commonly understand that "requirements" may be enforced either by backward-looking penalties for past violations or by the "process" of forward-looking orders enjoining future violations, such forward-looking orders themselves are characteristically given teeth by equity's traditional coercive sanctions for contempt: fines and bodily commitment imposed pending compliance or agreement to comply. The very fact, then, that the text speaks of sanctions in the context of enforcing "process," as distinct from substantive "requirements," is a good reason to infer that Congress was using "sanction" in its coercive sense, to the exclusion of punitive fines. </s> 2 </s> The last relevant passage of 1323(a), which provides that "the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court," is not to the contrary. While this proviso is unlike the preceding [503 U.S. 607, 624] text in that it speaks of "civil penalties," not "sanctions," it is obviously phrased to clarify or limit the waiver preceding it. Here our concern is with its clarifying function (leaving its limiting effect until later), and it must be said that, as a clarifier, the proviso speaks with an uncertain voice. To be sure, the second modifier of "civil penalties" at least makes it plain that the term (like "sanction," to which it relates) must include a coercive penalty, since "civil" penalties are exemplified by those "imposed by a State or local court to enforce an order or the process of such court." To this extent, then, the proviso serves to confirm the reading we reached above. </s> The role of the first modifier is problematical, however. On the one hand, it tugs toward a more expansive reading of "civil penalties." If, by using the phrase "civil penalties arising under federal law," Congress meant nothing more than coercive fines arising under Federal law, it would have been simpler to describe all such penalties as imposed to enforce an order or process, whether of a local, state, or federal court. Thus, the first modifier suggests that the civil penalties arising under federal law may indeed include the punitive, along with the coercive. Nevertheless, a reading expansive enough to reflect a waiver as to punitive fines would raise a new and troublesome question about the source of legal authority to impose such a fine. As far as federal law is concerned, the only available source of authority to impose punitive fines is the civil penalties section, 1319(d). But, as we have already seen, that section does not authorize liability against the United States, since it applies only against "persons," from whom the United States is excluded. </s> Ohio urges us to find a source of authority good against the United States by reading "arising under Federal law" to include penalties prescribed by state statutes approved by EPA and supplanting the CWA. Ohio argues for treating a state statute as providing penalties "arising under Federal law" by stressing the complementary relationship between [503 U.S. 607, 625] the relevant state and federal statutes and the role of such state statutes in accomplishing the purpose of the CWA. This purpose, as Ohio states it, is "to encourage compliance with comprehensive, federally approved water pollution programs while shielding federal agencies from unauthorized penalties." Brief for Respondent Ohio 34-35. Ohio asserts that "federal facility compliance . . . cannot be . . . accomplished without the [punitive] penalty deterrent." Id., at 35. </s> The case for such pessimism is not, however, self-evident. To be sure, an agency of the Government may break the law where it might have complied voluntarily if it had faced the prospect of punitive fines for past violations. But to say that its "compliance cannot be . . . accomplished" without such fines is to assume that, without sanctions for past conduct, a federal polluter can never be brought into future compliance, that an agency of the National Government would defy an injunction backed by coercive fines and even a threat of personal commitment. The position seems also to ignore the fact that, once such fines start running, they can be every dollar as onerous as their punitive counterparts; it could be a very expensive mistake to plan on ignoring the law indefinitely on the assumption that contumacy would be cheap. </s> Nor does the complementary relationship between state and Federal law support Ohio's claim that state law fines thereby "arise under federal law." Plain language aside, the far more compelling interpretative case rests on the best known statutory use of the phrase "arising under federal law," appearing in the grant of federal question jurisdiction to the courts of the United States. See 28 U.S.C. 1331. There, we have read the phrase "arising under" federal law to exclude cases in which the plaintiff relies on state law, even when the State's exercise of power in the particular circumstances is expressly permitted by federal law. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 116 (1936) (suit over state taxation of nationally chartered bank does not arise under federal law, even though such taxation [503 U.S. 607, 626] would not be possible without federal approval); International Bridge Co. v. New York, 254 U.S. 126, 133 (1920) (congressional approval of construction of bridge by state-chartered company does not make federal law the source of right to build bridge). 16 Congress' use of the same language in 1323(a) indicates a likely adoption of our prior interpretation of that language. See, e.g., ICC v. Locomotive Engineers, 482 U.S. 270, 284 -285 (1987) (interpreting statute based on previous interpretation of same language in another statute); Northcross v. Memphis Bd. of Education, 412 U.S. 427, 428 (1973) (per curiam) (similarity of language in two statutes "strong indication that [they] should be interpreted pari passu"). The probability is enough to answer Ohio's argument that "arising under Federal law" in 1323(a) is broad enough to cover provisions of state statutes approved by a federal agency, but nevertheless applicable ex proprio vigore. </s> Since Ohio's argument for treating state penalty provisions as arising under federal law thus fails, our reading of the last-quoted sentence from 1323(a) leaves us with an unanswered question and an unresolved tension between closely related statutory provisions. The question is still what Congress could have meant in using a seemingly expansive phrase like "civil penalties arising under Federal law." Perhaps it used it just in case some later amendment might waive the Government's immunity from punitive sanctions. Perhaps a drafter mistakenly thought that liability for such sanctions had somehow been waived already. Perhaps [503 U.S. 607, 627] someone was careless. The question has no satisfactory answer. </s> We do, however, have a response satisfactory for sovereign immunity purposes to the tension between a proviso suggesting an apparently expansive but uncertain waiver and its antecedent text that evinces a narrower waiver with greater clarity. For, under our rules, that tension is resolved by the requirement that any statement of waiver be unequivocal: as against the clear waiver for coercive fines, the indication of a waiver as to those that are punitive is less certain. The rule of narrow construction therefore takes the waiver no further than the coercive variety. </s> C </s> We consider, finally, the federal facilities section of RCRA, which provides, in relevant part, that the National Government </s> "shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief) . . . in the same manner, and to the same extent, as any person is subject to such requirements. . . . Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief." 42 U.S.C. 6961. </s> Ohio and its amici stress the statutory subjection of federal facilities to "all . . . requirements," which they would have us read as an explicit and unambiguous waiver of federal sovereign immunity from punitive fines. We, however, agree with the Tenth Circuit that "all . . . requirements" "can reasonably be interpreted as including substantive standards and the means for implementing those standards, but excluding [503 U.S. 607, 628] punitive measures." Mitzelfelt v. Department of Air Force, 903 F.2d 1293, 1295 (1990). </s> We have already observed that substantive requirements can be enforced either punitively or coercively, and the Tenth Circuit's understanding that Congress intended the latter finds strong support in the textual indications of the kinds of requirements meant to bind the Government. Significantly, all of them refer either to mechanisms requiring review for substantive compliance (permit and reporting requirements) or to mechanisms for enforcing substantive compliance in the future (injunctive relief and sanctions to enforce it). In stark contrast, the statute makes no mention of any mechanism for penalizing past violations, and this absence of any example of punitive fines is powerful evidence that Congress had no intent to subject the United States to an enforcement mechanism that could deplete the federal fisc regardless of a responsible officer's willingness and capacity to comply in the future. </s> The drafters' silence on the subject of punitive sanctions becomes virtually audible after one reads the provision's final sentence, waiving immunity "from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief." The fact that the drafters' only specific reference to an enforcement mechanism described "sanction" as a coercive means of injunctive enforcement bars any inference that a waiver of immunity from "requirements" somehow unquestionably extends to punitive fines that are never so much as mentioned. 17 </s> [503 U.S. 607, 629] </s> III </s> The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 Federal- and state-law fines differ both as to their amounts and the sovereign that gets them, state law fines going to the State and federal law fines going to the federal treasury. Ohio's state law fines are currently lower than their federal-law counterparts. See generally Tr. of Oral Arg. 36-37, 49-52; see also Brief for Respondent Ohio 36. The parties have agreed that, if DOE is liable for both federal- and state-law fines, it will be assessed only for the latter. See Stipulation Between DOE and Ohio, §§ 2.1, 3.1, App. 87, 89, 90. </s> [Footnote 2 The parties agreed to stay one claim pending completion of a technical study. See Stipulation Between DOE and Ohio, App. 87-88. </s> [Footnote 3 DOE's water pollution permit was issued by EPA. See Complaint § 29. DOE had no RCRA permit at the time Ohio commenced this suit, despite RCRA's requirement that facilities such as DOE's Fernald plant obtain one. See Complaint §§ 50, 52, 57; Answer of Federal Defendants § 57. </s> [Footnote 4 33 U.S.C. 1323(a) (CWA); 42 U.S.C. 6961 (RCRA). The federal facilities sections of the CWA and RCRA govern the extent to which federally operated facilities, such as DOE's Fernald facility, are subject to the requirements, including fines, of both their respective statutes and EPA-approved, state-law regulation and enforcement programs. </s> [Footnote 5 33 U.S.C. 1365(a) (CWA); 42 U.S.C. 6972(a) (RCRA). The citizen suit sections of the CWA and RCRA authorize private enforcement of the provisions of their respective statutes. Unlike the waivers in the federal facilities sections, which set forth the scope of federal sovereign immunity from the requirements, including fines, of both their respective statutes and EPA-approved, state-law regulation and enforcement programs, the citizen suit sections, to the extent they waive federal immunity at all, waive such immunity only from federal law penalties. </s> States may sue the United States under the citizen suit sections. See 33 U.S.C. 1365(a) (any "citizen" may bring citizen suit under CWA); id. 1365(g) (defining "citizen" for purposes of CWA citizen suit section as "person . . . having an interest which is or may be adversely affected"); id. 1362(5) (defining "person" for purposes of CWA to include a State); 42 U.S.C. 6972 ("any person" may bring citizen suit under RCRA); id. 6903(15) ("person" for purposes of RCRA includes a State). </s> [Footnote 6 The court held that its ruling on the CWA's federal facilities section obviated any need to consider that statute's citizen suit section. 904 F.2d, at 1062. </s> [Footnote 7 Ohio's petition also asked that if we reversed the lower court's conclusion on the CWA's federal facilities section, we consider whether that statute's citizen suit section contained a waiver, an issue the Sixth Circuit declined to reach. </s> [Footnote 8 The Sixth Circuit's holding that the CWA's federal facilities section waives federal sovereign immunity from punitive fines conflicts with the Ninth Circuit's conclusion that that section does not constitute such a waiver. See California v. Department of Navy, 845 F.2d 222 (1988). One Court of Appeals has found such a waiver in the CWA's citizen suit section. See Sierra Club v. Lujan, 931 F.2d 1421 (CA10 1991). Two other Courts of Appeals agree with the Sixth Circuit that RCRA's federal facilities section does not waive federal sovereign immunity from punitive fines. See Mitzelfelt v. Department of Air Force, 903 F.2d 1293 (CA10 1990); United States v. Washington, 872 F.2d 874 (CA9 1989). No other [503 U.S. 607, 615] Court of Appeals appears to have considered whether RCRA's citizen suit section constitutes such a waiver. </s> [Footnote 9 See n. 11, supra. </s> [Footnote 10 See 33 U.S.C. 1319(d) (CWA civil-penalties section); 42 U.S.C. 6928 (a), (g) (RCRA civil-penalties sections). </s> [Footnote 11 See 33 U.S.C. 1362(5) (defining "person" for purposes of CWA as "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body"); 42 U.S.C. 6903(15) (defining "person" for purposes of RCRA as "an individual, trust firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body"). </s> [Footnote 12 A subsection of RCRA dealing with a federal demonstration program tracking the disposal of medical waste does, in fact, require that "each department, agency, and instrumentality of the United States" "be treated as" a "person." See Medical Waste Tracking Act of 1988, 2(a), Pub.L. 100-582, 102 Stat. 2954, 2955, 42 U.S.C. 6992e(b). This broader provision, [503 U.S. 607, 618] however, applies only "[f]or purposes of this Act," ibid., which refers to the Medical Waste Tracking Act of 1988 itself, see 102 Stat. 2950. </s> [Footnote 13 See n. 11, supra. </s> [Footnote 14 The dissent fails to appreciate this difference, arguing that 1365(a) "states that any person, as used in that subdivision, includes the United States," post, at 633. That statement is simply incorrect; the citizen suit section does no more than include the United States in the class of entities that may be the subject of a suit brought under this section. In stark contrast to the examples we have given, see n. 12, supra, 1365(a) does not purport to apply the more expansive definition of "person" throughout the subsection; by its terms, it speaks only to the first mention of "person." </s> [Footnote 15 DOE explicitly concedes that such relief is available against the United States in the context of citizen suits pursuant to the CWA, see Brief for Petitioner DOE 33, and implicitly so concedes with regard to RCRA, see id., at 40-41. DOE also concedes that both statutes' federal facilities sections authorize imposition of injunctive-type relief against the National Government, see id., at 19-20, and n. 10; see also id., at 35. DOE concedes federal liability to such penalties without reference to the civil penalties sections of the CWA or RCRA. </s> [Footnote 16 Of course, the phrase "arising under" federal law appears in Article III, 2, of the Constitution, where it has received a broader construction than in its statutory counterpart. See Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 494 -495 (1983). Ohio, however, has offered no reason to believe Congress intended this broader reading, rather than the narrower statutory reading. Even assuming an equal likelihood for each intent, our rule requiring a narrow construction of waiver language tips the balance in favor of the narrow reading. </s> [Footnote 17 We also reject Ohio's argument purporting to rest on Hancock v. Train, 426 U.S. 167 (1976). In Hancock, we determined that, as then written, 118 of the Clean Air Act, 42 U.S.C. 1857f (1970 ed.), did not require federal facilities to obtain state pollution permits as a condition of continued operation. The relevant portion of 1857 required the National Government to "comply with Federal, State, interstate, and local requirements respecting control . . . of air pollution." Ohio and its amici stress the point in our analysis where we found it significant that 1857 did not require federal compliance with "all federal, state, interstate and local [503 U.S. 607, 629] requirements," or with "all requirements of the applicable state implementation plan." See 426 U.S., at 182 (emphasis in original). They read our opinion as drawing a distinction between substantive and procedural requirements, and as interpreting 1857 as not waiving federal immunity from procedural requirements, the group in which we classified the state permit programs. Ohio and its amici conclude that the drafters of RCRA took our observations in Hancock to heart, and, seeking to waive federal sovereign immunity for all purposes, including liability for civil punitive fines, waived immunity for "all . . . requirements, both substantive and procedural." 42 U.S.C. 6961; see Brief for Respondent Ohio 41; see also, e.g., Brief for State of California et al. as Amici Curiae 21. </s> The answer to this is twofold. Indications of the breadth of the Government's obligation to comply with substantive or procedural requirements dealt with in Hancock do not necessarily translate into indications that the Government's subjection to mechanisms for enforcing those obligations extends to punitive, as well as to coercive, sanctions. In any event, if Congress had in fact entertained the intention Ohio suggests, it would hardly have avoided any example of punitive fines at the same time as it expressly mentioned the coercive injunctive remedy. </s> JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, concurring in part and dissenting in part. </s> These cases concern a uranium processing plant which, the Government concedes, has "contaminated the soil, air and surface waters" of Fernald, Ohio, with radioactive materials, "exceeded certain of the effluent limitations set forth" in its water pollution permit, and "failed to construct portions of the water pollution control facilities in accordance" with the permit. Answer §§ 28, 33. </s> The situation at the Fernald plant is not an aberration. The Department of Energy (DOE) estimates that taxpayers may pay $40 to $70 billion during the next 20 years to clean [503 U.S. 607, 630] up or contain the contamination at its facilities. 1 Federal facilities fail to comply with the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., twice as frequently as private industry. 2 And the compliance rate of the Departments of Defense and Energy with the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901 et seq., is 10 to 15 percent lower than that of private industry. 3 </s> In an effort to compel Government agencies to adhere to the environmental laws under which private industry must operate, Congress waived sovereign immunity for civil penalties in the federal facilities and citizen suit provisions of the CWA, 33 U.S.C. 1323, 1365(a), and in the citizen suit provision of the RCRA, 42 U.S.C. 6972(a). Today, the majority thwarts this effort by adopting "an unduly restrictive interpretation" of both statutes and writing the waivers out of existence. Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 222 (1945); Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 287 (1983). In so doing, the majority ignores the "unequivocally expressed" intention of Congress, United States v. Nordic Village Inc., ante, at 33; United States v. Mitchell, 445 U.S. 535, 538 (1980), and deprives the States of a powerful weapon in combating federal agencies that persist in despoiling the environment. </s> I </s> It is axiomatic that a statute should be read as a whole. 2A N. Singer, Sutherland on Statutory Construction 46.05 (5th ed. 1992). When the federal facilities and citizen suit [503 U.S. 607, 631] provisions of the CWA are so read, the conclusion becomes inescapable that Congress intended to waive sovereign immunity for civil penalties under the statute. </s> The federal facilities provision, 33 U.S.C. 1323(a), see ante, at 620, both establishes the Government's duty to comply with the substantive and procedural requirements of the CWA and explicitly waives immunity for civil penalties. The first part of the federal facilities provision states that the Federal Government is subject to "any process and sanction," regardless of the court in which it is enforced. </s> The majority devotes three pages of its opinion to a tortured discussion of whether subjecting the Government to "process and sanction" encompasses liability for civil penalties. See ante, at 621-623. Rather than engaging in these analytic gymnastics, the Court needed to do nothing more than read the rest of the federal facilities provision. It clearly states: </s> "[T]he United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court." 33 U.S.C. 1323(a). </s> Obviously, Congress intended the United States to be liable for civil penalties. The plain language of the statute says so. Therefore, the broad term "sanctions" used earlier in the same subsection must include these penalties. Any other reading would contravene the "ancient and sound rule of construction that each word in a statute should, if possible, be given effect." Crandon v. United States, 494 U.S. 152, 171 (1990) (Scalia, J., concurring in judgment); Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985); Colautti v. Franklin, 439 U.S. 379, 392 (1979). </s> The question, then, is not whether Congress has waived federal immunity for civil penalties. The waiver here unambiguously reached those claims for civil penalties "arising [503 U.S. 607, 632] under" federal law. The critical inquiry is under what circumstances civil penalties arise under federal law. </s> A </s> Ohio contends that it is entitled to recover civil penalties on two different claims: the first brought under the CWA itself, through its citizen suit provision, 33 U.S.C. 1365(a), and the second under the Ohio water pollution laws that arise under the CWA's distinctive mechanism allowing States to administer CWA enforcement within their own boundaries. Ohio Rev.Code Ann. 6111.09 (Supp. 1987). I agree that the waiver of immunity covers both types of claims. </s> 1 </s> First, the CWA waives sovereign immunity for civil penalty claims brought under the Act's citizen suit clause. 33 U.S.C. 1365(a). See ante, at 615-614. That section unambiguously provides authority to sue "any person (including . . . the United States . . .)" and to recover "any appropriate civil penalties" under the civil penalties clause of the CWA enforcement provision, 1319(d). It is impossible to fathom a clearer statement that the United States may be sued and found liable for civil penalties. The enforcement provision lists those violations that may be subject to a civil penalty, sets a ceiling on the size of the penalty, and lists factors that the court should consider in determining the amount of a penalty. Ibid. </s> Nevertheless, the majority concludes that this straightforward approach is not sufficient to waive immunity. The Court laches onto the fact that the enforcement provision does not include its own definition of "person," and that the CWA's general purpose definition of the word "person" does not include the United States. 1362(5). 4 Again, there is a [503 U.S. 607, 633] short answer to this claim. The statute says, in plain English, that its general definitions apply "[e]xcept as otherwise specifically provided." 1362. The citizen suit provision is one of the exceptions to the general rule; it [states that any person, as used in that subdivision, includes the United States.] 1365(a). Certainly this special definition applies to the civil penalty enforcement provisions it incorporates. </s> To conclude otherwise is to resort to "ingenuity to create ambiguity" that simply does not exist in this statute. Rothschild v. United States, 179 U.S. 463, 465 (1900). </s> 2 </s> The CWA also waives immunity for civil penalties arising under state laws enacted to allow local administration of the CWA permit program. The majority rejects this proposition by relying on cases in which the Court has held that state laws approved by the Federal Government do not "arise under" federal law. See ante, at 625-626. But these cases are inapposite, because the CWA regime goes far beyond simple federal approval of state action. Instead, the Act establishes a distinctive variety of cooperative federalism. </s> As we recently explained: "The Clean Water Act anticipates a partnership between the States and the Federal Government. . . ." Arkansas v. Oklahoma, ante, at 101. To effectuate this partnership, the CWA authorizes the Environmental Protection Agency (EPA) to issue pollution discharge permits, 33 U.S.C. 1342, but provides that a State may "administer" its own permit system if it complies with detailed statutory and regulatory requirements. 33 U.S.C. 1342(b); 40 CFR 123.1-123.64 (1991). A State that seeks to "administer" a permitting program is required to adopt a system of civil penalties. 33 U.S.C. 1342(b)(7). Federal regulations establish the minimum size of the penalties and mandate how, and when, they must be imposed. 40 CFR 123.27(a)(3)(i), 123.27(b)(1), 123.27(c) (1991). [503 U.S. 607, 634] </s> Even when a State obtains approval to administer its permitting system, the Federal Government maintains an extraordinary level of involvement. EPA reviews state water quality standards. 33 U.S.C. 1313(c). It retains authority to object to the issuance of particular permits, 1342(d)(2), to monitor the state program for continuing compliance with federal directives, 1342(c), and even to enforce the terms of state permits when the State has not instituted enforcement proceedings, 1319(a). </s> Under this unusual statutory structure, compliance with a state-administered permit is deemed compliance with the CWA. 1342(k). Indeed, in EPA v. Oklahoma, decided together with Arkansas v. Oklahoma, the EPA asserted that "the showing necessary to determine under the CWA whether there is compliance with any particular state [pollution] standard is itself a matter of federal, not state, law." Brief for Petitioner, O. T. 1991, No. 90-1266, p. 18, n. 21 (emphasis added). Cf. Arkansas v. Oklahoma, ante, at 110 (recognizing the "federal character" of state pollution standards in interstate pollution controversy). This conclusion is not surprising, since the citizen suit provision of the CWA authorizes any citizen to sue under federal law for a "violation of . . . an order issued by . . . a State with respect to [any effluent] standard or limitation. . . ." 33 U.S.C. 1365(a). </s> Given the structure of the CWA, it is apparent that the "arising under" limitation on the waiver of sovereign immunity was not intended to protect the Federal Government from exposure to penalties under state laws that merely provide for the administration of a CWA permit system. Instead, the limitation shields the Government from liability under state laws that have not been subject to initial EPA review and ongoing agency supervision. 5 Only by resorting [503 U.S. 607, 635] to "an unduly restrictive interpretation" of the CWA and focusing on the "arising under" language in isolation can the majority reach a contrary result. Canadian Aviator, 324 U.S., at 222 . </s> B </s> Because of its determination to find that civil penalties are not available against the Government, the majority paints itself into a corner. The Court acknowledges that its distortion of the statute leaves the phrase "civil penalties arising under Federal law" devoid of meaning. See ante, at 626-627. But rather than reading the CWA as Congress wrote it and recognizing that it effects a waiver of immunity, the majority engages in speculation about why Congress could not have meant what it unambiguously said: </s> "Perhaps it used [civil penalties arising under federal law] just in case some later amendment might waive the Government's immunity from punitive sanctions. Perhaps a drafter mistakenly thought that liability for such sanctions had somehow been waived already. Perhaps someone was careless." Ibid. </s> It is one thing to insist on an unequivocal waiver of sovereign immunity. It is quite another "to impute to Congress a desire for incoherence" as a basis for rejecting an explicit waiver. Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 394 (1939); Franchise Tax Bd. of California v. Postal Service, 467 U.S. 512, 524 (1984). Cf. Canadian Aviator, supra, at 225. That is what the majority does today. "Surely the interest in requiring the Congress [503 U.S. 607, 636] to draft its legislation with greater clarity or precision does not justify a refusal to make a good-faith effort to ascertain the actual meaning of the message of tried to convey in a statutory provision that is already on the books." Nordic Village, ante, at 45. (Stevens, J., dissenting). </s> The unambiguous language of the federal facilities and citizen suit provisions of the CWA clearly contemplate a waiver of immunity as to suit for civil damages, and "once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to `assume the authority to narrow the waiver that Congress intended.'" Ardestani v. INS, 502 U.S. 129, 137 (1991), quoting United States v. Kubrick, 444 U.S. 111, 118 (1979); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94 (1990). </s> II </s> Turning to the (RCRA), I agree with the majority and with the Court of Appeals that the RCRA federal facilities provision does not effect an unambiguous waiver of immunity from civil penalties, 42 U.S.C. 6961. See ante, at 627-628. The section makes no reference to civil penalties and, instead, waives immunity for "any such injunctive relief." This language comports with the Government's claim that the waiver is intended to reach only coercive, and not punitive, sanctions. The provision certainly does not unequivocally encompass civil penalties. Therefore, I join Part II-C of the Court's opinion. </s> However, I would find a waiver under RCRA's citizen suit provision, 42 U.S.C. 6972(a), see ante, at 616, which is very similar to the citizen suit provision in the CWA, for the reasons I have explained above. See. Part I-A-1, supra. </s> III </s> The job of this Court is to determine what a statute says, not whether it could have been drafted more artfully. In these cases, the federal facilities and citizen suit provisions of [503 U.S. 607, 637] the CWA and the citizen suit provision of the RCRA unambiguously waive the Federal Government's immunity from civil penalties. That is all the law requires. </s> [Footnote 1 Cleanup at Federal Facilities: Hearing on H. R. 765 before the Subcommittee on Transportation and Hazardous Materials of the House Committee on Energy and Commerce, 101st Cong., 1st Sess., Ser. No. 101-4, p. 44 (1989). </s> [Footnote 2 U.S. General Accounting Office, Report to Congressional Requestors: Water Pollution, Stronger Enforcement Needed to Improve Compliance of Federal Facilities 3 (1988). </s> [Footnote 3 H.R.Rep. No. 102-111, p. 3 (1991). </s> [Footnote 4 Section 1362(5) states: "The term `person' means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." </s> [Footnote 5 States may adopt more rigorous water quality standards than those established under the CWA. EPA regulations provide that a State is not precluded from: [503 U.S. 607, 635] </s> "(1) Adopting or enforcing requirements which are more stringent or more extensive than those required under this part; </s> "(2) Operating a program with a greater scope of coverage than that required under this part. If an approved State program has greater scope of coverage than required by Federal law the additional coverage is not part of the Federally approved program. 40 CFR 123.1(h)(i) (1991) (emphasis added). </s> [503 U.S. 607, 638]

United States Supreme Court UNITED STATES v. HOHRI(1987) No. 86-510 Argued: April 20, 1987Decided: June 1, 1987 </s> Title 28 U.S.C. 1295(a)(2) gives the United States Court of Appeals for the Federal Circuit exclusive appellate jurisdiction over a variety of cases involving the Federal Government in which the District Court's jurisdiction was based, "in whole or in part," on 28 U.S.C. 1346(a)(2), the Little Tucker Act, "except that jurisdiction of an appeal in a case brought in a district court under [the Federal Tort Claims Act (FTCA)] . . . shall be governed by" provisions vesting jurisdiction in the regional Federal Courts of Appeals. Respondents, a Japanese-American organization and individuals, brought suit in District Court seeking damages and declaratory relief for the tangible and intangible injuries suffered when, during World War II, the Federal Government removed approximately 120,000 Japanese-Americans from their homes and placed them in internment camps. Jurisdiction was based on the Little Tucker Act and the FTCA. The District Court concluded that all claims were barred, but the Court of Appeals reversed the dismissal of certain Little Tucker Act claims. The court held that it, rather than the Federal Circuit, had jurisdiction over the appeal. Although noting that 1295(a)(2) generally grants the Federal Circuit exclusive jurisdiction of appeals in cases involving nontax Little Tucker Act claims, the court concluded that Congress did not intend the Federal Circuit to hear such appeals when they also included FTCA claims. </s> Held: </s> The Federal Circuit rather than the appropriate regional court of appeals has jurisdiction over an appeal from a district court's decision of a "mixed" case raising both a nontax Little Tucker Act claim and an FTCA claim. Pp. 68-76. </s> (a) Section 1295(a)(2) clearly establishes that the Federal Circuit has exclusive appellate jurisdiction of a case raising only a nontax Little Tucker Act claim, and that the appropriate regional court of appeals has exclusive appellate jurisdiction of a case raising only an FTCA claim. However, 1295(a)(2)'s language does not clearly address a "mixed" case and is thus inherently ambiguous on this point. Pp. 68-69. </s> (b) Given this ambiguity, the more plausible reading of 1295(a)(2) is the Solicitor General's view that the section's "except" clause merely describes claims that do not suffice to create Federal Circuit jurisdiction, and that, thus, such claims must be heard in that court if [482 U.S. 64, 65] they are joined with claims that fall within its exclusive jurisdiction. The proximity of the except clause to the "granting" clause at the beginning of 1295(a)(2) suggests that the except clause's failure to repeat the granting clause's "in whole or in part" phrase in characterizing FTCA claims was not accidental. Moreover, the except clause's description of the excepted tax cases by reference to the basis of "the claim" suggests that the clause was directed at cases raising one rather than multiple claims. Respondents' contention that the except clause indicates not only that FTCA claims fail to create Federal Circuit jurisdiction, but also that the presence of such a claim renders inapplicable that Court's otherwise exclusive jurisdiction over nontax Little Tucker Act claims, is not persuasive. Although it has some force, respondents' argument, which ultimately is based on a comparison of the language of the except clauses in 1295(a)(2) and 1295(a)(1), is more attenuated than the Solicitor General's view that rests simply on the variation between 1295(a)(2)'s own clauses. Pp. 69-71. </s> (c) Given the comprehensive statutory framework, under which the Federal Circuit has exclusive jurisdiction over every appeal from a Tucker Act or nontax Little Tucker Act claim, and the legislative history's strong expressions of the need for judicial uniformity in this area, it seems likely that Congress would have rendered explicit any intended exceptions. Pp. 71-73. </s> (d) Also unpersuasive is respondents' argument that a congressional intent to deprive the Federal Circuit in "mixed" cases of its exclusive jurisdiction over nontax Little Tucker Act claims is evidenced by a congressional Report statement that FTCA appeals, because they frequently involve application of state law, would continue to be brought in the regional courts of appeals. When viewed as a whole, the legislative history establishes that Congress intended for centralized determination of nontax Little Tucker Act claims to predominate over regional adjudication of FTCA claims. Pp. 73-76. </s> 251 U.S. App. D.C. 145, 782 F.2d 227, vacated and remanded. </s> POWELL, J., delivered the opinion of the Court, in which all other Members joined, except SCALIA, J., who took no part in the consideration or decision of the case. BLACKMUN, J., filed a concurring opinion, post, p. 76. </s> Solicitor General Fried argued the cause for the United States. With him on the briefs were Assistant Attorney General Willard, Deputy Solicitor General Ayer, Roy T. Englert, Jr., Barbara L. Herwig, and Jay S. Bybee. [482 U.S. 64, 66] </s> Benjamin L. Zelenko argued the cause for respondents. With him on the brief were Wallace M. Cohen, B. Michael Rauh, Ellen Godbey Carson, and Martin Shulman. * </s> [Footnote * Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Warren Price III, Attorney General of Hawaii, Corinne K. A. Watanabe, First Deputy Attorney General, and Steven S. Michaels, Deputy Attorney General; and for the American Friends Service Committee et al. by David Kairys. </s> Briefs of amici curiae were filed for the American Civil Liberties Union et al. by Fred Okrand, Paul L. Hoffman, and Douglas E. Mirell; and for Fred Korematsu et al. by Dale Minami, Peggy Nagae, and Ruti G. Teitel. </s> JUSTICE POWELL delivered the opinion of the Court. </s> In this case we must decide which court - the Court of Appeals for the Federal Circuit or the appropriate regional Court of Appeals - has jurisdiction over an appeal from a Federal District Court's decision of a case raising both a nontax claim under the Little Tucker Act and a claim under the Federal Tort Claims Act (FTCA). </s> I </s> During World War II, the Government of the United States removed approximately 120,000 Japanese-Americans from their homes and placed them in internment camps. Respondents are an organization of Japanese-Americans and 19 individuals - former internees and their representatives. They filed this action in the United States District Court for the District of Columbia, seeking damages and declaratory relief for the tangible and intangible injuries suffered because of this incident. Jurisdiction was based on, inter alia, the Little Tucker Act, 28 U.S.C. 1346(a)(2), 1 and the FTCA, [482 U.S. 64, 67] 28 U.S.C. 1346(b). The District Court concluded that all claims were barred either by sovereign immunity or the applicable statute of limitations. 586 F. Supp. 769 (1984). </s> Respondents appealed to the Court of Appeals for the District of Columbia Circuit. That court reversed the District Court's dismissal of certain claims under the Little Tucker Act. 251 U.S. App. D.C. 145, 782 F.2d 227 (1986). First, the court concluded that it, rather than the Court of Appeals for the Federal Circuit, had jurisdiction over the appeal. It noted that 28 U.S.C. 1295(a)(2) generally grants the Federal Circuit exclusive jurisdiction of appeals in cases involving nontax claims under the Little Tucker Act. But it concluded that Congress did not intend the Federal Circuit to hear appeals of such cases when they also included FTCA claims. Id., at 157-158, 782 F.2d, at 239-241. On the merits, the court concluded that the statute of limitations did not begin to run on certain of respondents' Little Tucker Act claims until 1980, when Congress created the Commission on Wartime Relocation and Internment of Civilians. Id., at 171, 782 F.2d, at 253. Chief Judge Markey, sitting by designation pursuant to 28 U.S.C. 291(b), filed a dissent, disagreeing with the court's jurisdictional analysis as well as its decision as to the statute of limitations. Id., at 174-175, 782 F.2d, at 256-263. A petition for rehearing en banc was denied by a 6-to-5 vote. 253 U.S. App. D.C. 233, 793 F.2d 304 (1986). Judge Bork, joined by four other judges, filed a dissent from denial of the petition, in which he disagreed with both of the court's conclusions. Id., at 233-234, 793 F.2d, at 304-313. [482 U.S. 64, 68] </s> Because of the potentially broad impact of the Court of Appeals' decision and because of the importance of the jurisdictional question, we granted the Government's petition for a writ of certiorari. 479 U.S. 960 (1986). We conclude that the Court of Appeals did not have jurisdiction and therefore do not address the merits of its decision. 2 </s> II </s> In 1982, Congress passed the Federal Courts Improvement Act, creating the United States Court of Appeals for the Federal Circuit. Among other things, the Act grants the Federal Circuit exclusive appellate jurisdiction over a variety of cases involving the Federal Government. 28 U.S.C. 1295(a) (2). Specifically, the Act provides: </s> "The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction - </s> . . . . . </s> "(2) of an appeal from a final decision of a district court of the United States . . . if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title, except that jurisdiction of an appeal in a case brought in a district court under section 1346(a)(1), 1346(b), 1346(e), or 1346(f) of this title or under section 1346(a)(2) when the claim is [related to federal taxes] shall be governed by sections 1291, 1292, and 1294 of this title." </s> This section establishes two undisputed propositions relevant to this case. First, the Federal Circuit has exclusive appellate jurisdiction of a case raising only a nontax claim under the Little Tucker Act, 1346(a)(2). Second, the appropriate regional Court of Appeals - in this case, the Court of Appeals [482 U.S. 64, 69] for the District of Columbia Circuit - has exclusive appellate jurisdiction under 1291, 1292, and 1294 of a case raising only a claim under the FTCA, 1346(b). </s> This case presents claims under both the Little Tucker Act and the FTCA, a situation not specifically addressed by 1295(a)(2). Resolution of this problem turns on interpretation of the second clause of this subsection, the so-called "except clause." The Solicitor General contends that the except clause merely describes claims that do not suffice to create jurisdiction in the Federal Circuit. Thus, he argues, appeals of FTCA claims must be heard in the Federal Circuit if, as in this case, they are joined with claims that fall within its exclusive jurisdiction. By contrast, respondents contend that the except clause indicates not only that FTCA claims fail to create jurisdiction in the Federal Circuit, but also that the presence of an FTCA claim renders inapplicable the Federal Circuit's otherwise exclusive jurisdiction over nontax Little Tucker Act claims. 3 </s> A </s> As always, the "`starting point in every case involving construction of a statute is the language itself.'" Kelly v. Robinson, 479 U.S. 36, 43 (1986) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (POWELL, J., concurring)). Unfortunately, as we have noted, see [482 U.S. 64, 70] United States v. Mottaz, 476 U.S. 834, 848 -849, n. 11 (1986), the language of this statute does not clearly address a "mixed" case that presents both nontax Little Tucker Act claims and FTCA claims. Congress could have expressed the Solicitor General's interpretation more clearly by adding the word "solely" to the except clause, and thus provided that an appeal from a case brought solely under 1346(b) should be to the regional court of appeals. Or, if Congress had intended the broader meaning of the except clause urged by respondents, it could have added a phrase akin to "in whole or in part" to the except clause, thus providing that an appeal of a case brought in whole or in part under 1346(b) should be to the regional court of appeals. Because Congress employed neither of these alternatives, we are left with the task of determining the more plausible interpretation of the language Congress did include in 1295(a)(2). </s> In our view, the Solicitor General's reading of the statute is more natural. Although Congress included the phrase "in whole or in part" in the granting clause at the beginning of 1295(a)(2), it did not repeat this phrase in the except clause later in the same paragraph. The proximity of the clauses suggests that the variation in wording was not accidental. Also, in one instance the statute describes the excepted cases by reference to the basis of "the claim." See 1295(a)(2) (providing for appeals to regional courts of appeals "in a case brought in a district court . . . under section 1346(a)(2) when the claim is [related to federal taxes]" (emphasis added)). This suggests that the except clause was directed at cases raising only one claim; it strains the language to apply the except clause to cases raising multiple claims, some within and some not within the except clause. </s> Respondents rely heavily on the wording of the preceding paragraph of the statute, 1295(a)(1). That section provides exclusive appellate jurisdiction in the Federal Circuit </s> "of an appeal from a final decision of a district court of the United States . . . if the jurisdiction of that [482 U.S. 64, 71] court was based, in whole or in part, on section 1338 of this title, except that a case involving a claim arising under any Act of Congress relating to copyrights or trademarks and no other claims under section 1338(a) shall be [appealed to the appropriate regional court of appeals]." </s> Like subsection (a)(2), subsection (a)(1) grants the Federal Circuit exclusive jurisdiction over cases arising under one section of the Judicial code, but has an except clause governing certain types of cases under that section. Respondents note that the (a)(1) except clause specifically deals with mixed cases. On its face it applies only to cases raising the excepted claims "and no other claims." They argue that the failure to include the words "and no other claims" in the subsection (a)(2) except clause indicates that Congress intended a different scope for the two except clauses. Thus, in their view, the Solicitor General's interpretation requires us to read into (a)(2) the words that Congress intentionally omitted. </s> Although respondents' argument has some force, ultimately we are not persuaded. Neither of the proffered readings can remove the ambiguity inherent in this statute. Respondents' textual argument - based on a comparison of the language of 1295(a)(1) with the language of 1295 (a)(2) - is more attenuated than the Solicitor General's textual argument, that rests on the variation between the clauses of subsection (a)(2) itself. While a more carefully drafted statute would have avoided both of these problems, we find it difficult to assume that the variation within the same subsection was inadvertent. </s> B </s> Because the statute is ambiguous, congressional intent is particularly relevant to our decision. A motivating concern of Congress in creating the Federal Circuit was the "special need for nationwide uniformity" in certain areas of the law. [482 U.S. 64, 72] S. Rep. No. 97-275, p. 2 (1981) (hereinafter 1981 Senate Report); S. Rep. No. 96-304, p. 8 (1979) (hereinafter 1979 Senate Report). The Senate Reports explained: "[T]here are areas of the law in which the appellate courts reach inconsistent decisions on the same issue, or in which - although the rule of law may be fairly clear - courts apply the law unevenly when faced with the facts of individual cases." 1981 Senate Report, at 3; 1979 Senate Report, at 9. The Federal Circuit was designed to provide "a prompt, definitive answer to legal questions" in these areas. 1981 Senate Report, at 1; 1979 Senate Report, at 1. Nontort claims against the Federal Government present one of the principal areas in which Congress sought such uniformity. Thus, Congress decided to confer jurisdiction on the Federal Circuit in "all federal contract appeals in which the United States is a defendant." H. R. Rep. No. 97-312, p. 18 (1981) (hereinafter 1981 House Report); H. R. Rep. No. 96-1300, p. 16 (1980) (hereinafter 1980 House Report). 4 </s> For the most part, the statute unambiguously effectuates this goal. Tucker Act claims for more than $10,000 may be brought only in the United States Claims Court. 28 U.S.C. 1491(a)(1). Decisions of the United States Claims Court are appealable only to the Federal Circuit, not the regional courts of appeals. 1295(a)(3). Claims for less than $10,000 (i. e., Little Tucker Act claims) may be brought either in a federal district court or in the United States Claims Court. 1346(a)(2). These claims, so long as they are not related to federal taxes, also are appealable only to the Federal Circuit. 1295(a)(2), (3). A conspicuous feature [482 U.S. 64, 73] of these judicial arrangements is the creation of exclusive Federal Circuit jurisdiction over every appeal from a Tucker Act or nontax Little Tucker Act claim. Given this comprehensive framework and the strong expressions of the need for uniformity in the area, one would expect any exception intended by Congress to have been made explicit, rather than left to inferences drawn from loose language. </s> C </s> Despite the language of the statute and the evident congressional desire for uniform adjudication of Little Tucker Act claims, the Court of Appeals inferred an exception to exclusive Federal Circuit jurisdiction in cases that include FTCA claims. In supporting the Court of Appeals' judgment, respondents rely on the statement, thrice repeated in the congressional Reports, that "[b]ecause cases brought under the Federal Tort Claims Act frequently involve the application of State law, those appeals will continue to be brought to the regional courts of appeals." 1981 Senate Report, at 20; 1981 House Report, at 42; 1980 House Report, at 34. Respondents argue that this statement evidences a congressional intent to deprive the Federal Circuit of its otherwise exclusive appellate jurisdiction over nontax Little Tucker Act claims whenever an FTCA claim is presented in the same case. We find this argument unpersuasive when viewed in the context of the legislative history as a whole. </s> First, the congressional Reports indicate only that Congress saw no affirmative need for national uniformity in FTCA cases, not that the perceived need for regional adjudication of FTCA claims outweighed the strong and oft-noted intent of Congress that only the Federal Circuit should have jurisdiction of appeals in nontax Little Tucker Act cases. Second, Congress specifically rejected the idea that patent and Tucker Act appeals should be decided by a "specialized [482 U.S. 64, 74] court" incapable of deciding more general legal issues. 5 The Federal Circuit decides questions arising under the Federal Constitution and statutes whenever such questions arise in cases within the Federal Circuit's jurisdiction. There is no reason to believe that Congress intended to exempt the relatively common tort questions presented by the average FTCA cases from the Federal Circuit's already-broad docket. 6 Third, if Congress thought the presence of state-law issues was sufficient to override the need for centralization of nontax Little Tucker Act claims, the except clause logically should have included all cases raising state-law [482 U.S. 64, 75] issues, not just cases under the FTCA. 7 But Congress did not preclude the Federal Circuit from deciding all state-law questions, or even all FTCA claims. For example, even under respondents' reading of the statute, the Federal Circuit can hear FTCA claims whenever they are joined with patent claims under 1338. See 1295(a)(1). That Congress allowed the Federal Circuit to hear FTCA claims in this context refutes respondents' contention that Congress demanded regional adjudication of all FTCA claims. </s> For these reasons, we conclude that Congress intended for centralized determination of nontax Little Tucker Act claims to predominate over regional adjudication of FTCA claims. We hold that a mixed case, presenting both a nontax Little [482 U.S. 64, 76] Tucker Act claim and an FTCA claim, may be appealed only to the Federal Circuit. </s> III </s> We vacate the judgment of the Court of Appeals, and remand the case to that court, with instructions to transfer the case to the Federal Circuit. See 28 U.S.C. 1631. </s> It is so ordered. </s> JUSTICE SCALIA took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Jurisdiction in district courts under the Little Tucker Act is limited to nontort claims not exceeding $10,000. 28 U.S.C. 1346(a)(2). See 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3657, pp. 284-288 (2d ed. 1985). This decentralized jurisdiction was designed to "`give all persons having claims for comparatively small amounts the right to bring suits in the districts where they and their witnesses reside without subjecting them to the expense and annoyance of litigating in Washington.'" [482 U.S. 64, 67] Id., at 274 (quoting United States v. King, 119 F. Supp. 398, 403 (Alaska 1954)). With minor exceptions, the Tucker Act grants the United States Claims Court jurisdiction of similar claims without regard to the amount of the claim. 28 U.S.C. 1491(a)(1). Thus, Tucker Act claims for more than $10,000 can be brought only in the United States Claims Court. Claims for less than $10,000 generally can be brought either in a federal district court or in the United States Claims Court. </s> [Footnote 2 Respondents also filed a petition for a writ of certiorari, No. 86-298, seeking review of other aspects of the Court of Appeals' judgment. Because our resolution of No. 86-510 requires us to vacate the entire judgment of the Court of Appeals, we grant the petition in No. 86-298 and remand the entire case to the Court of Appeals. </s> [Footnote 3 Neither the parties nor any judge of the Court of Appeals suggested bifurcating the case so that the Little Tucker Act claims would be transferred to the Federal Circuit and the FTCA claims would remain in the Court of Appeals for the District of Columbia Circuit. We agree that bifurcation is inappropriate. The language of 1295(a)(2) discusses jurisdiction over an appeal "in a case," not over an appeal from decision of "a claim." This strongly suggests that appeals of different parts of a single case should not go to different courts. Also, at least when a case has not been bifurcated in the district court, a bifurcated appeal of the different legal claims raised in any one case would result in an inefficient commitment of the limited resources of the federal appellate courts. Cf. Atari, Inc. v. JS & A Group, Inc., 747 F.2d 1422, 1438-1440 (CA Fed. 1984) (en banc) (rejecting bifurcated appeals in patent cases). </s> [Footnote 4 The Little Tucker Act, of course, covers not only contract claims, but also other claims for money damages "founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, . . . or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. 1346(a)(2). See Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 605-606, 372 F.2d 1002, 1007-1008 (1967) (discussing noncontractual liability under the Tucker Act). </s> [Footnote 5 The Senate Reports described "such an approach as being inconsistent with the imperative of avoiding undue specialization within the Federal judicial system." 1981 Senate Report, at 6; 1979 Senate Report, at 13. They also proffered a broad conception of the Federal Circuit's jurisdiction: </s> "[I]t will have a varied docket spanning a broad range of legal issues and types of cases. It will handle all patent appeals, plus government claims case[s] and all other appellate matters that are now considered by the [Court of Customs and Patent Appeals] or the Court of Claims - cases which contain a wide variety of issues. </s> "This rich docket assures that the work of the proposed court will be broad and diverse and not narrowly specialized. The judges will have no lack of exposure to a broad variety of legal problems. Moreover, the subject matter of the new court will be sufficiently mixed to prevent any special interest from dominating it." 1981 Senate Report, at 6; 1979 Senate Report, at 13. </s> See also 1981 House Report, at 19; 1980 House Report, at 17. </s> [Footnote 6 There may have been a concern that Federal Circuit judges would not be familiar with questions of state tort law. But this problem is mitigated considerably by the fact that these cases are tried before local federal district judges, who are likely to be familiar with the applicable state law. Indeed, a district judge's determination of a state-law question usually is reviewed with great deference. E. g., Railroad Comm'n v. Pullman Co., 312 U.S. 496, 499 (1941) (review by this Court); Alabama Elec. Cooperative, Inc. v. First National Bank, 684 F.2d 789, 792 (CA11 1982) (review by a Court of Appeals). But see In re McLinn, 739 F.2d 1395, 1400 (CA9 1984) (en banc) (de novo review by a Court of Appeals). It is certainly not clear that a panel of the Federal Circuit would be less competent to review such determinations than a panel of a regional court of appeals. </s> [Footnote 7 The legislative development of the other claims in the except clause also supports our interpretation. As enacted, the except clause lists five types of claims. Its original version listed only tow types of claims, FTCA claims and claims under 1346(a)(1). S. 677, 96th Cong., 1st Sess., 735(a) (1979). Under that bill, the Federal Circuit would have had exclusive jurisdiction (in addition to the jurisdiction Congress eventually gave it) over claims under 1346(e) and (f), as well as tax-related Little Tucker Act claims. Subsequent amendments added these three types of claims to the except clause. Under respondents' theory, the original bill must have reflected a view that there was an affirmative need for centralization of these claims; subsequent amendments reflected a complete reversal of viewpoint to a decision that there was an affirmative harm in centralized adjudication of these claims. Thus, respondents implicitly argue that Congress originally thought that all of these claims should have been appealed to the Federal Circuit, but eventually determined not only that these claims should be appealed to the regional circuits, but also that the need for regional appeals of those claims would render inapplicable the Federal Circuit's otherwise exclusive jurisdiction over nontax Little Tucker Act claims. We think such a reversal of intent would have been reflected somewhere in the legislative history. </s> Our interpretation does not posit such a sharp and undocumented swing of viewpoint. In our view, Congress originally thought that appeals of these claims should be centralized. Subsequently, Congress decided that they could be adjudicated adequately in the regional courts of appeals. Nothing suggests, however, that Congress thought regional adjudication was so important as to bar centralized adjudication of mixed cases. </s> JUSTICE BLACKMUN, concurring. </s> I join the Court's opinion and its judgment. I do so, however, with less than full assurance and satisfaction. </s> There are three reasons for my concern. The first is the consequent element of further delay in the decision on the merits in a case that has roots already more than four decades old. The issue on the merits probably will be back in this Court once again months or years hence. The second is that the statute the Court is forced to construe in this case is not a model of legislative craftsmanship. Surely, Congress is able to make its intent more evident than in the language it has utilized here. It is to be hoped that Congress will look at the problem it has created and will set forth in precise terms its conclusion as to jurisdiction of federal appellate courts in mixed-claims cases of this kind. </s> My third reason is an administrative one. I am somewhat surprised and concerned over the fact that the Chief Judge of the Federal Circuit was designated to sit on this appeal. The jurisdictional issue, on which the case presently goes off, involves the jurisdiction of his own court as against that of the District of Columbia Circuit. In concluding to dissent, as he had every right to do - and as the Court today vindicates - the Chief Judge was forced to take a position favoring his own court's jurisdiction. The "appearance" is troubling. I wonder why what must have been a measure of embarrassment [482 U.S. 64, 77] for the Chief Judge was not avoided by refraining to assign him, or any other judge from the "opposite" court, to sit on this case. Unless the designation was purposeful (in order to have a panel with views of judges of both courts), one must observe that the Court of Appeals for the District of Columbia Circuit had a complement of other judges from which to fill the third seat on the three-judge panel. </s> [482 U.S. 64, 78]

United States Supreme Court MENGELKOCH v. WELFARE COMM'N(1968) No. 375 Argued: Decided: October 28, 1968 </s> A three-judge federal court dissolved itself for want of jurisdiction. A single district judge then dismissed the case on the ground of abstention and incorporated the three-judge court's dissolution order in his opinion by reference. In this appeal from both judgments held that the Court of Appeals, and not this Court, has jurisdiction over the appeal from the dissolution order and from the abstention decision. </s> 284 F. Supp. 950, vacated and remanded; 284 F. Supp. 956, dismissed. </s> Marguerite Rawalt for appellants. </s> Thomas C. Lynch, Attorney General of California, and Edward M. Belasco, Jay L. Linderman, and William L. Zessar, Deputy Attorneys General, for appellees. </s> PER CURIAM. </s> A three-judge federal court, convened pursuant to 28 U.S.C. 2281, determined that "there is no jurisdiction for a three-judge court" and entered an order dissolving itself. 284 F. Supp. 950, 956. The single district judge in whose court the case was originally filed considered further and dismissed the case without prejudice under the doctrine of abstention, stating in his memorandum opinion that "[t]he order dissolving the three-judge court is incorporated in this memorandum by reference." 284 F. Supp. 956, 957. Appellants appeal from both judgments. In these circumstances, we have no jurisdiction to entertain a direct appeal from the decision of the single judge; such jurisdiction is possessed only by the appropriate United States Court of Appeals. 28 U.S.C. 1291. Moreover, we have held that when, as here, a [393 U.S. 83, 84] three-judge court dissolves itself for want of jurisdiction, an appeal lies to the appropriate Court of Appeals and not to this Court. Wilson v. Port Lavaca, 391 U.S. 352 . * </s> Although the appellants have lodged in the Court of Appeals for the Ninth Circuit a protective appeal from the decision of the single judge, it does not appear from the record that such an appeal has been filed with respect to the three-judge order. Therefore, we vacate the order of the three-judge court and remand the case to the District Court so that a timely appeal may be taken to the Court of Appeals. See Wilson v. Port Lavaca, supra; Utility Comm'n v. Pennsylvania R. Co., 382 U.S. 281, 282 . The appeal from the decision of the single judge is dismissed for want of jurisdiction. </s> It is so ordered. </s> [Footnote * We think it makes no difference in principle that in Wilson v. Port Lavaca the single judge actually adopted the opinion of the three-judge court as his own. </s> [393 U.S. 83, 85]

United States Supreme Court CHAPMAN v. UNITED STATES(1961) No. 175 Argued: February 23, 1961Decided: April 3, 1961 </s> State police officers, acting without a warrant but with the consent of petitioner's landlord, who had summoned them after detecting the odor of whiskey mash on the premises, entered petitioner's rented house in his absence through an unlocked window and there found an unregistered still and a quantity of mash. When petitioner returned and entered the house, he was arrested by a state officer. Federal officers, also without warrants, arrived soon thereafter and took custody of petitioner, samples of the mash and the still. The evidence so seized was admitted over petitioner's objection at his trial in a federal court and he was convicted of violating the federal liquor laws. Held: The search and seizure were unlawful, and the judgment affirming the conviction is reversed. Pp. 610-618. </s> 272 F.2d 70, reversed. </s> J. Sewell Elliott argued the cause and filed a brief for petitioner. </s> Robert S. Erdahl argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Kirby W. Patterson. </s> MR. JUSTICE WHITTAKER delivered the opinion of the Court. </s> Acting without a warrant but with the consent of the petitioner's landlord, Georgia law enforcement officers entered - through an unlocked window - and searched petitioner's rented house, in his absence, and there found and seized an unregistered "distillery" and 1,300 gallons of "mash." Soon afterward petitioner was indicted in [365 U.S. 610, 611] the District Court for the Middle District of Georgia for violations of the federal liquor laws. 1 He promptly moved the court for an order suppressing the use of the seized items as evidence at his impending criminal trial on the ground that they were obtained by an unlawful search and seizure. After hearing evidence, the court held that the search and seizure were lawful under federal standards and denied the motion. </s> At the subsequent trial, the evidence sought to be suppressed was offered and received, over petitioner's renewed objections. Upon that evidence, the jury found petitioner guilty, and the court sentenced him to imprisonment for a year and a day. On appeal, the Court of Appeals for the Fifth Circuit affirmed. 272 F.2d 70. To examine petitioner's claim that the courts below violated the standards governing admissibility of timely challenged evidence in federal courts, we granted certiorari. 363 U.S. 836 . </s> The relevant evidence is not controverted. It shows the following: One Bridgaman, and another, owned a dwelling house in a wooded area near the Macon, Georgia, airport, which they commonly rented through a rental agency. Understanding that the house had been rented to a new tenant, Bridgaman, on Sunday, February 16, 1958, went to the house for the purpose of inviting the tenants to attend church. Upon arrival he noted a strong "odor of mash" about the house. There was no response to his knock, and, although he tried to do so, he was unable to see into the house. He then returned to his home and, by telephone, advised the local police department of his observations. Soon afterward two local police officers, Harbin and Chance, arrived at Bridgaman's home, and the three then went to the rented [365 U.S. 610, 612] house. They noticed a strong odor of "whiskey mash" coming from the house. After their knock at the door failed to produce a response, they walked around the house and tried to look into it but were unable to do so because the shades were down. They found that all of the windows were locked, save one in the bathroom. The officers testified that Bridgaman told them "to go in the window and see what['s] what in there." Bridgaman's version of what he said was: "If it's what I think it is, what it smells like, yes, you can have my permission to go in." Thereupon they opened the bathroom window and, with the assistance of Bridgaman and Chance, Harbin entered the house through that opening. Upon entering the house he saw a complete and sizable distillery and 1,300 gallons of mash located in the living room. Apart from some accessories, containers and firewood, there was nothing else in the house. Harbin then called to Chance that he had found a large still and asked him "to go get some help." Chance immediately left - dropping Bridgaman at his home - to call the federal officers. While the federal officers were en route to the house, petitioner drove up, unlocked the front door, entered the house and was immediately arrested by Harbin. The federal officers soon arrived and took custody of petitioner. They also saved samples of the mash, took various pictures of the scene and then destroyed the still and its contents. Neither the state nor the federal officers had any warrant of any kind. </s> Although the decisions below were rendered prior to this Court's decision in Elkins v. United States, 364 U.S. 206 , the doctrine of that case is not here involved, as the lower courts explicitly rested their determinations on the ground that the search and seizure, though made by state officers, were valid under federal standards. Hence, the only question here is whether those determinations were correct. We believe that they were not. [365 U.S. 610, 613] </s> The Fourth Amendment to the United States Constitution provides: </s> "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." </s> Until Agnello v. United States, 269 U.S. 20 , this Court had never directly decided, but had always assumed, "that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein" (id., at 32), but that case explicitly decided that "Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are . . . unlawful notwithstanding facts unquestionably showing probable cause." Id., at 33. </s> At least two decisions of this Court are closely relevant. Taylor v. United States, 286 U.S. 1 , and Johnson v. United States, 333 U.S. 10 . In the Taylor case, Federal agents had received "complaints" respecting activities at a certain garage in Baltimore and decided to "investigate." As they "approached the garage they got the odor of whiskey coming from within." Looking through a small opening, they saw a number of cardboard cases. Although they had no warrant of any kind, they "broke the fastening upon a door, entered and found one hundred twenty-two cases of whiskey. No one was within the place and there was no reason to think otherwise. While the search progressed, Taylor came from his house and was put under arrest. The search and seizure were undertaken with the hope of securing evidence upon which to indict and convict him." Id., at 5. [365 U.S. 610, 614] </s> In condemning that search and seizure, this Court said that the officers "had abundant opportunity [to obtain a warrant] and to proceed in an orderly way even after the odor had emphasized their suspicions; there was no probability of material change in the situation during the time necessary to secure such warrant. Moreover, a short period of watching would have prevented any such possibility. . . . Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees against unreasonable search." The Court concluded that "in any view, the action of the agents was inexcusable and the seizure unreasonable. The evidence was obtained unlawfully and should have been suppressed." Id., at 6. </s> In the Johnson case, state narcotic agents, while in the hallway of a hotel, recognized a strong odor of burning opium coming from a particular room. Without knowing who was occupying the room, they knocked and, after some delay, the door was opened. The agents then entered the room and told the occupant "to consider [herself] under arrest because we are going to search the room." The search produced incriminating opium and smoking apparatus which was warm from recent use. The District Court refused to suppress that evidence and admitted it over defendant's objection at the trial and she was convicted. In reversing, this Court said: </s> "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. [365 U.S. 610, 615] Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent. </s> "There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. But this is not such a case." 333 U.S., at 13 -15. </s> Here, as in that case, "No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the constitutional requirement. No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear." 333 U.S., at 15 . </s> We think it must be concluded here, as it was in Johnson, that "If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, [365 U.S. 610, 616] it is difficult to think of a case in which it should be required." 333 U.S., at 15 . See also Lustig v. United States, 338 U.S. 74 ; United States v. Rabinowitz, 339 U.S. 56 ; United States v. Jeffers, 342 U.S. 48 ; Jones v. United States, 357 U.S. 493 . </s> Actually, the Government does not contend in this Court that this search and seizure, as such, met the standards of the Fourth Amendment. Instead, it says: "Our position is that when the landlord, paying a social call, found good reason to believe that the leased premises were being wasted and used for criminal purposes, he had authority to enter as a matter of right and to bring officers with him for this purpose." It says that, under the common law, a landlord has an absolute right to enter the demised premises "to view waste," and that he should be able to exercise that right through law enforcement officers to whom he has delegated his authority. But it cites no Georgia or other case holding that a landlord, in the absence of an express covenant so permitting, has a right forcibly to enter the demised premises without the consent of the tenant "to view waste." And, so far as our research discloses, no Georgia case so holds. </s> The only relevant authority cited by the Government is a statement from Tiffany, Landlord and Tenant (1910 ed.), 3. b. (2), p. 9, that "It has also been said that [the landlord] may enter to `view waste,' that is, to determine whether waste has been committed, provided at least that this does not involve the breaking of windows or doors . . . ." 2 (Emphasis added.) There are several answers to this contention. First, here the landlord and the officers forced open a window to gain entry to the premises. Second, "their purpose in entering was [not to view waste but] to search for distilling equipment . . . ." Jones v. United States, supra, at 500. Third, to uphold [365 U.S. 610, 617] such an entry, search and seizure "without a warrant would reduce the [Fourth] Amendment to a nullity and leave [tenants'] homes secure only in the discretion of [landlords]." Johnson v. United States, supra, at 14. Moreover, "it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. . . . [W]e ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime." Jones v. United States, 362 U.S. 257, 266 -267. </s> After pointing to the fact that a Georgia statute (Title 58 Ga. Code 106) provides that the unlawful manufacture of distilled liquor on rented premises shall work a forfeiture of the rights of the tenant, at the option of the landlord, and that another (Title 58 Ga. Code 109) provides that use of a structure for that purpose constitutes a nuisance, the Government argues that, inasmuch as he used the demised premises for the illicit manufacture of distilled liquor, petitioner had forfeited all rights in the premises, and the landlord thus acquired the right forcibly to enter to abate the nuisance, and that he could and did delegate that right to the officers. But it is clear that, before the officers made the forcible entry, the landlord did not know that the premises were being used for the manufacture of liquor, nor had he exercised his statutory option to forfeit the tenancy for such a cause. And the Supreme Court of Georgia has held that a proceeding to abate a nuisance under 109 "must proceed for the public on information filed by the solicitor-general of the circuit." Kilgore v. Paschall, 202 Ga. 416, 417, 43 S. E. 2d 520, 521. [365 U.S. 610, 618] </s> It follows that this search was unlawful, and since evidence obtained through that search was admitted at the trial, the judgment of the Court of Appeals must be </s> Reversed. </s> MR. JUSTICE BLACK concurs in the result. </s> Footnotes [Footnote 1 26 U.S.C. 5601, 5606. </s> [Footnote 2 Only ancient English cases are cited in support of the text. </s> MR. JUSTICE FRANKFURTER, concurring in the judgment. </s> Since searches and seizures play such a frequent role in federal criminal trials, it is most important that the law on searches and seizures by which prosecutors and trial judges are to be guided should be as clear and unconfusing as the nature of the subject matter permits. The course of true law pertaining to searches and seizures, as enunciated here, has not - to put it mildly - run smooth. The Court's opinion in this case is hardly calculated, I regret to say, to contribute to clarification. The reasoning by which the Court reaches its result would be warranted were Trupiano v. United States, 334 U.S. 699 (1948), still law. While the Court does not explicitly rely on it, underlying the present decision is the approach of Trupiano. That decision was a short-lived deviation from the course of decisions preceding it and it was specifically overruled by United States v. Rabinowitz, 339 U.S. 56, 66 (1950). Since the Rabinowitz case expresses the prevailing view, the decision in this case runs counter to it. The Court does rely on Johnson v. United States, 333 U.S. 10 , although that case was seriously impaired by Rabinowitz, 339 U.S., at 66 , dissenting opinion, at 85. </s> Surely it is fair to say that the lower courts and prosecutors have a right to proceed on the assumption, on the basis of controlling decisions, that whether or not a search is "unreasonable" turns on the circumstances presented by a particular situation, as a matter of substantive determination. On that test, I find it very difficult to conclude that a police officer may not deem adequate [365 U.S. 610, 619] the authorization of a landlord to enter his house without a search warrant where he has solid ground for believing that his lessee is utilizing the house as an illegal distillery. It seems to me that it is not at all "unreasonable" not to charge a local police officer with knowledge of the law of Georgia regarding the power of a landlord to abate a nuisance in his house. Apart from charging a policeman with knowledge of the local law relating to landlord and tenant, he certainly would not acquire that knowledge by reading the only Georgia case to which the Court's opinion refers, Kilgore v. Paschall, 202 Ga. 416, 43 S. E. 2d 520, a case which deals with the procedure of a solicitor general of a Georgia circuit in abating a nuisance by an injunction and tells nothing about the remedy of self-help by a landlord. </s> In joining the Court's judgment, I do so on the basis of the views set forth in my dissents in Davis v. United States, 328 U.S. 582, 594 ; Zap v. United States, 328 U.S. 624, 630 ; Harris v. United States, 331 U.S. 145, 155 ; United States v. Rabinowitz, supra, at 68. As these opinions elucidate, the Fourth Amendment incorporates a guiding history that gives meaning to the phrase "unreasonable searches and seizures" contained within it far beyond the meaning of the phrase in isolation and taken from the context of that history and its gloss upon the Fourth Amendment. The Amendment in its entirety in the setting of that history decidedly does not leave the phrase "unreasonable searches and seizures" at large. </s> MR. JUSTICE CLARK, dissenting. </s> The Constitution condemns only an unreasonable search. As my Brother FRANKFURTER says, that determination "turns on the circumstances presented by a particular situation." 1 </s> [365 U.S. 610, 620] </s> As I read the record, Bridgaman had rented a house to Chapman. On a Sunday morning he called at the house to invite Chapman to church services. However, Bridgaman found Chapman gone, the house locked up and an "awful scent" of whiskey mash all over the place, including an open but empty cellar. He reported these facts to state officers and, at his suggestion, two officers accompanied him to the house. They too smelled, as the Court says, "a strong odor of `whiskey mash' coming from the house." </s> Under Georgia law, the use of premises for the manufacture or the keeping of liquor for disposition works "a forfeiture of the rights of any lessee or tenant under any lease or contract for rent . . . ." 2 Bridgaman advised the officers he was the owner of the house, had it leased out, and "instructed" officer Harbin to enter it and "see what['s] what in there." The officers found a bathroom window unlocked. Bridgaman "told" the officers "to go in the window" and assisted in "boosting" officer Harbin into the window and on into the house. Inside, the officer found a still set up for operation and 1,300 gallons of whiskey mash in the vats. There was neither household furniture nor other evidence of residential occupancy. </s> The Court sets aside Chapman's conviction on the ground that this search without a warrant was "unreasonable." For the life of me I cannot see why this is true. I agree with a unanimous Court of Appeals that "under the circumstances of the search here made by the State officers, no illegality was shown." </s> The "reasonableness" of the search hinges on the rights of the landlord under Georgia law in such a situation. [365 U.S. 610, 621] This Court refuses to honor the clear language of 106, apparently because the Government "cites no Georgia or other case" holding that a landlord may, under the circumstances here, enter on his premises. Instead, it bases its reversal on Taylor v. United States, 286 U.S. 1 , and Johnson v. United States, 333 U.S. 10 , involving entry by officers, unaccompanied by the landlord, into a home without a search warrant when there was ample time to secure one. This doctrine, established by Trupiano v. United States, 334 U.S. 699 (1948), was repudiated and specifically overruled only two years later in united States v. Rabinowitz, 339 U.S. 56 , at 66. Furthermore, none of the cases cited by the Court involve the landlord-tenant circumstance controlling here. </s> As to Georgia law, the Court itself finds that "no Georgia case" holds that landlords have a right of entry as was exercised by Bridgaman here. It says that, first, the window was forced, second, the entry was for purposes of search and, third, affirmance would "`leave [tenants'] homes secure only in the discretion of [landlords]'" (quoting from Johnson, supra). The obvious answer to that is: "Chapman was a tenant no more!" The statute provided for the forfeiture of his lease at his lessor's option when he began making whiskey on the premises. And Bridgaman so elected when he directed the officers to enter the house. It was Chapman who was the trespasser, not Bridgaman. The latter was merely repossessing his property, not abating a nuisance. Therefore, 109 of the Georgia Code, cited by the Court, has no bearing here for that statute merely provides that the Attorney General "may" abate such a nuisance. It has no reference to landlords qua landlords. Indeed, the officers here could have abated the nuisance without judicial help by destroying the still and all of its paraphernalia under authority of 58 Ga. Code Ann. (Cum. [365 U.S. 610, 622] Supp. 1958) 207. 3 Likewise, Kilgore v. Paschall, 202 Ga. 416, 43 S. E. 2d 520, also cited by the Court, is entirely inapposite. That case merely holds that the special statutory authorization, under an entirely different provision of the Georgia Code, 110, to close up "blind tigers," i. e., public places of disrepute where gambling, drinking, etc., are carried on, must be brought by the Solicitor of the county wherein they are located. But even if it did hold that actions under 109 must be brought by the Solicitor, that ruling would have no effect here, precisely because the present factual situation does not come under 109 but under 106 and 207, supra. </s> Furthermore, there was ample reason for not getting a warrant here. It was Sunday afternoon and, as the Georgia officer testified, he had "never got one on Sunday." "I don't think you can." And this was buttressed by his further statements: "Well, I didn't feel no call to get one." "The man that owned the house, he was there and he told us to go in the window and see what['s] what in there, so we went on in." This shows a complete reliance by the officers on Bridgaman's direction to enter the house. This, I say, made the search entirely reasonable and therefore valid under the Fourth Amendment. </s> Every moment of every day, somewhere in the United States, a law enforcement officer is faced with the problem of search and seizure. He is anxious to obey the rules that circumscribe his conduct in this field. It is the duty of this Court to lay down those rules with such clarity and understanding that he may be able to follow them. For some years now the field has been muddy, but today the Court makes it a quagmire. It fashions a novel rule, supporting it with an old theory long since overruled. [365 U.S. 610, 623] If Rabinowitz is no longer law the Court should say so. It is disastrous to law enforcement to leave at large the inconsistent rules laid down in these cases. It turns the wellsprings of democracy - law and order - into a slough of frustration. It turns crime detection into a game of "cops and robbers." We hear much these days of an increasing crime rate and a breakdown in law enforcement. Some place the blame on police officers. I say there are others that must shoulder much of that responsibility. </s> [Footnote 1 I join in his opinion except for the last paragraph in which he concurs in the judgment of the Court. </s> [Footnote 2 58 Ga. Code Ann., 106. Aside from eviction, there are no statutory procedural requirements as to forfeiture, the forfeit operating by virtue of 106 at the option of the landlord. </s> [Footnote 3 Section 207 provides in pertinent part: </s> "[W]henever said apparatus [for making liquor is] . . . found or discovered by any sheriff, . . . the same shall be summarily destroyed and rendered useless by him without any formal order of the court." </s> [365 U.S. 610, 624]

United States Supreme Court PARKER SEAL CO. v. CUMMINS(1976) No. 75-478 Argued: October 12, 1976Decided: November 2, 1976 </s> 516 F.2d 544, affirmed by an equally divided Court. </s> Leonard H. Becker argued the cause for petitioner. With him on the briefs was Paul S. Ryerson. </s> Thomas L. Hogan argued the cause for respondent. With him on the briefs was James C. Hickey. </s> Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, Mark L. Evans, Brian K. Landsberg, Dennis J. Dimsey, Abner W. Sibal, Joseph T. Eddins, Beatrice Rosenberg, and Gerald D. Letwin. * </s> [Footnote * Briefs of amici curiae urging reversal were filed by John O'B. Clarke, Jr., William G. Mahoney, and Plato E. Papps for the International Association of Machinists and Aerospace Workers, and by Dick H. Woods and George E. Feldmiller for Trans World Airlines, Inc. </s> Briefs of amici curiae urging affirmance were filed by Warren L. Johns, Philip B. Kurland, and Alan L. Unikel for the Seventh-Day Adventist Church; by James W. Respess for the Americans United for Separation of Church and State; by Nathan Lewin, Dennis Rapps, and Howard I. Rhine for the National Jewish Commission on Law and Public Affairs; and by Leo Pfeffer for the Synagogue Council of America et al. </s> PER CURIAM. </s> The judgment is affirmed by an equally divided Court.Fn </s> MR. JUSTICE STEVENS took no part in the consideration or decision of this case. </s> Fn [429 U.S. 65, 65] [REPORTER'S NOTE: On rehearing this judgment and the judgment of the Court of Appeals were vacated, and the case was remanded for further consideration. 433 U.S. 903 (1977).] </s> [429 U.S. 65, 66]

United States Supreme Court GONZALES v. UNITED STATES(1955) No. 69 Argued: Decided: March 14, 1955 </s> Petitioner, a member of Jehovah's Witnesses who had claimed and had been denied conscientious objector exemption, was convicted under the Universal Military Training and Service Act for refusal to submit to induction into the armed forces. Held: The failure to furnish petitioner with a copy of the recommendation made by the Department of Justice to the Appeal Board under the provisions of 6 (j) of the Act deprived petitioner of the right to present his side of the case to the Appeal Board; and the conviction is reversed. Pp. 408-417. </s> (a) Although not expressly required by 6 (j) of the Act, it is implicit in the Act and Regulations that a copy of the recommendation of the Department be furnished the registrant at the time it is forwarded to the Appeal Board, and that he be afforded an opportunity to reply. Pp. 411-414, 417. </s> (b) The right to file a statement before the Appeal Board includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arguments to be countered. Pp. 414-416. </s> (c) Petitioner's rights were not adequately protected by the provision in the regulations for a mode of "rehearing." Pp. 416-417. </s> 212 F.2d 71, reversed. </s> Petitioner was convicted under the Universal Military Training and Service Act for refusal to submit to induction into the armed forces. 120 F. Supp. 730. The Court of Appeals affirmed. 212 F.2d 71. This Court granted certiorari. 348 U.S. 811 . Reversed, p. 417. </s> Hayden C. Covington argued the cause and filed a brief for petitioner. [348 U.S. 407, 408] </s> John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Carl H. Imlay. </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> This is another prosecution under 62 Stat. 622, 50 U.S.C. App. 462 (a), for refusal to submit to induction into the armed services. The only question necessary to the decision of this case is whether petitioner, claiming exemption because of conscientious objections to participation in war, was entitled to receive a copy of the recommendation made by the Department of Justice to the Appeal Board under the provisions of 6 (j) of the Universal Military Training and Service Act, 62 Stat. 612, as amended, 50 U.S.C. App. 456 (j). The trial judge held that he was not, and that the classification of petitioner as I-A was valid. Petitioner was found guilty as charged, 120 F. Supp. 730, and the Court of Appeals for the Sixth Circuit affirmed, 212 F.2d 71. </s> Petitioner registered under the selective service laws on January 4, 1950. In his classification questionnaire, filed on March 9, 1951, he claimed exemption as a minister and conscientious objector, his claims stemming from his association with the Jehovah's Witnesses. Under the doctrines of this sect, each member is a minister; and their tenets are widely interpreted as banning personal participation in political wars. See Sicurella v. United States, ante, p. 385. Only petitioner's conscientious objector claim is now before the Court. </s> Petitioner's secular education consisted of elementary school training and two years of high school. On September 27, 1948, he married a member of the Jehovah's Witnesses. The record indicates that, beginning in November 1949, he received "private instruction" in the [348 U.S. 407, 409] Bible from a member of the sect, and that in December he began "actively serving" as a Jehovah's Witness. On January 4, 1950, petitioner registered under the selective service laws. The following month he was ordained as a minister of the Witnesses. Petitioner's religious affiliation, at least as late as 1948, had been Catholic, and his parents and family were Catholic. He began work with the Great Lakes Steel Corporation, a steel plant manufacturing articles of war, on August 19, 1950. On October 1, 1950, petitioner was recognized as a "pioneer" by the Jehovah's Witnesses and embarked on more extensive religious activities. 1 </s> In his special form for conscientious objectors, filed on April 3, 1951, petitioner claimed exemption from combatant and noncombatant service. He relied on "the ten commandments of God found in the Bible" to support his claim. He said he would use force "[i]n protection of person and ministerial activities, but at no time in aggression." Petitioner declined to rely on the official pronouncements of the Jehovah's Witnesses to support his position, stating that "I am basing myself entirely on my knowledge of the Bible." He supported his claims, however, with an affidavit signed by 22 persons, attesting to petitioner's activity in the Witnesses for the 18 months preceding April 8, 1951, and with a certificate of 4 persons stating that petitioner was conducting weekly Bible studies with them. Petitioner had not given public expression to his views "other than" through his general religious activity. </s> After an intervening classification of III-A (dependency deferment), petitioner was classified I-A on January [348 U.S. 407, 410] 8, 1952. On February 19, 1952, following a personal appearance, the local Board decided unanimously to continue petitioner in I-A, and petitioner noted an appeal. The Appeal Board made a tentative finding against him and referred the case to the Department of Justice. The FBI then made its investigation and petitioner was given a hearing. The hearing officer, while noting that petitioner "appeared to be a sincere Jehovah's Witness and as such is conscientiously opposed to war," recommended denial of the conscientious objector classification. The Department of Justice, in its report to the Appeal Board, made a similar recommendation. In accepting the view expressed by the hearing officer, the Department found support in "[t]he fact that registrant became a member of the Jehovah's Witness sect one month after his Selective Service System registration in January, 1950, despite the fact that his wife had been a member for many years." 2 No copy of this report or other notice of the recommendation was given petitioner prior to the Appeal [348 U.S. 407, 411] Board's decision. On December 11, 1952, the Appeal Board unanimously classified petitioner I-A, and upon his refusal to submit to induction this prosecution was brought. </s> Petitioner contends that his classification is invalid because he was not furnished a copy of the Justice Department's recommendation to the Appeal Board and accorded an opportunity to reply thereto. Section 6 (j) of the Universal Military Training and Service Act, outlining the procedure in conscientious objector cases, is silent on this question. 3 But a similar silence was not held to be [348 U.S. 407, 412] a considered rejection of the right of a registrant to be supplied with a fair resume of adverse evidence in the FBI reports, United States v. Nugent, 346 U.S. 1 (1953); Simmons v. United States, ante, p. 397, and we believe it also to be implicit in the Act and Regulations - viewed against our underlying concepts of procedural regularity and basic fair play - that a copy of the recommendation of the Department be furnished the registrant at the time it is forwarded to the Appeal Board, and that he be afforded an opportunity to reply. 4 </s> It is true that the recommendation of the Department is advisory. 50 U.S.C. App. 456 (j). Indeed, this very consideration led us in United States v. Nugent, supra, to allow considerable latitude in the auxiliary hearing which culminated in the Department's report. A natural corollary of this, however, is that a registrant be given an opportunity to rebut this recommendation when it comes to the Appeal Board, the agency with the ultimate responsibility for classification. For in the usual case it is the Appeal Board which renders the selective service determination considered "final" in the courts, not [348 U.S. 407, 413] to be overturned unless there is no basis in fact. Estep v. United States, 327 U.S. 114 . </s> It should be emphasized, moreover, that in contrast to the strictly appellate function it exercises in other cases, the Appeal Board in handling conscientious objector claims is the first selective service board to receive the Department's recommendation, and is usually the only decision-making body to pass on the entire file. An opportunity for the registrant to reply is therefore the only means of insuring that this Board will have all of the relevant data. Furthermore, if the registrant is to present his case effectively the Appeal Board as well as the over-all position of the Department of Justice. See Ohio Bell Telephone Co., v. Public Utilities Comm'n, 301 U.S. 292, 300 -305; United States v. Abilene & So. Ry. Co., 265 U.S. 274, 289 ; Interstate Commerce Comm'n v. Louisville & N. R. Co., 227 U.S. 88, 93 . </s> The facts here underscore this necessity. The Department in its recommendation emphasizes that the petitioner was of a Catholic family and concluded that petitioner's "affiliation with [Jehovah's Witnesses] has been too recent and too closely related to his draft status to warrant the acceptance of his conscientious objector position as genuine. The fact the registrant became a member of the Jehovah's Witness sect one month after his . . . registration . . . lends weight to this conclusion." But petitioner contends he was a member of the Witnesses before he registered, and there is testimony that he had not been of the Catholic belief since 1948. Nor was this facet of the case explored at the Department of Justice hearing. If petitioner had been afforded a copy of the recommendation, he might have successfully contradicted the basis of the Department's conclusion or diminished the forcefulness of its thrust. The record also discloses that the local Board apparently placed little [348 U.S. 407, 414] emphasis on the lateness of petitioner's conversion, inquiring instead about the tenets of the sect and petitioner's employment in the steel plant. On appeal, it was logical for petitioner to direct his attention to these matters. But the Department of Justice based its rejection of his claim on the proximity of petitioner's conversion to his registration for the draft, a contention of which he had no knowledge and no opportunity to meet. The petitioner was entitled to know the thrust of the Department's recommendation so he could muster his facts and arguments to meet its contentions. See Morgan v. United States, 304 U.S. 1, 18 . 5 </s> Nor is this requirement inconsistent with the views expressed in United States v. Nugent, supra, that selective service procedures, "geared to meet the imperative needs of mobilization and national vigilance," are not to be delayed by "litigious interruption." The registrant in that case sought to make the auxiliary procedure of the Department of Justice "a full-scale trial for each appealing registrant." We refused to compel "an all-out collateral attack at the [Department of Justice] hearing on the testimony obtained in its prehearing investigation." Here all that is involved is the mailing of a copy of the Department's recommendation to the registrant and permitting a reply to the Appeal Board. The registrant already has the right to file a statement with the [348 U.S. 407, 415] Appeal Board. 6 Just as the right to a hearing means the right to a meaningful hearing, United States v. Nugent, supra; Simmons v. United States, supra, so the right to file a statement before the Appeal Board includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arguments to be countered. </s> A similar problem has arisen once before in the administration of our selective service laws. Under the Selective Training and Service Act of 1940, local Boards referred to panels of clergymen and laymen of a particular faith questions concerning the validity of ministerial and divinity students claims. The panel interviewed the registrant and made a report to the local Board. In sustaining the use of these panels, this Court emphasized the right of the registrant under the regulations to [348 U.S. 407, 416] examine the report and "explain or correct it, or deny it." Eagles v. Samuels, 329 U.S. 304, 313 . See also Eagles v. Horowitz, 329 U.S. 317, 323 . And, in a case where it was not shown that the registrant had access to the panel's report, Judge Learned Hand said: </s> "As the case comes to us, the board made use of evidence of which [the registrant] may have been unaware, and which he had no chance to answer: a prime requirement of any fair hearing." United States v. Balogh, 157 F.2d 939, 943, judgment vacated on other grounds, 329 U.S. 692 . </s> See also Brewer v. United States, 211 F.2d 864 (C. A. 4th Cir. 1954). </s> So basic, indeed, is this "prime requirement of any fair hearing" that counsel for the Government contended for the first time in oral argument that the rights of the registrant were amply protected by the provision in the regulations for a mode of "rehearing." In short, the argument is that after the Appeal Board decides against the registrant and his file is returned to the local Board, he has the right under the selective service regulations to examine all information in his file, including the recommendation of the Department, 32 CFR 1606.32 (a) (1); 32 CFR 1606.38 (c). The registrant would then have a right to request a reopening of his classification, 32 CFR 1625.1 (a); 32 CFR 1625.2, if he submitted "proof of error in documents submitted to the appeal board by the Department of Justice." 7 Moreover, he may present his contentions to the Director of Selective Service or the State Director of Selective Service, requesting a reopening of his classification or a reconsideration by the Appeal Board, 32 CFR 1625.3 (a); 32 CFR 1626.61 (a). [348 U.S. 407, 417] </s> We believe these remedies to be too little and too late. Too little, because the right to present petitioner's side of the case is broader than the bare right to correct "errors" made by the Department in its recommendation. Too late, because, except with the permission of the national or state Director, only the local Board may reopen the case; and a certain reluctance is to be expected after the Appeal Board, albeit on incomplete presentation, has rejected the registrant's claim. Moreover, the local Board has discretion to refuse to reopen the case if it "is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant's classification . . . ." 32 CFR 1625.4. </s> We hold that the over-all procedures set up in the statute and regulations, designed to be "fair and just" in their operation, 62 Stat. 605, 50 U.S.C. App. 451 (c), require that the registrant receive a copy of the Justice Department's recommendation and be given a reasonable opportunity to file a reply thereto. Accordingly, the decision of the Court of Appeals, upholding petitioner's conviction for refusing to submit to induction, is </s> Reversed. </s> Footnotes [Footnote 1 A much more extensive narration of petitioner's background is given in the hearing officer's report. (R. 11a et seq.) The latter document, under applicable regulations, 323 CFR ( 1954 Supp.) 1626.25, was not transmitted to the Appeal Board for its Consideration in classifying petitioner. </s> [Footnote 2 The complete text of the report is as follows: </s> "Registrant was born July 22, 1931, in San Antonio, Texas. He left the Edition High School of that city in June, 1948, after two years of attendance and took employment as a sheet metal worker with a local firm. He married his present wife in September, 1948. In the summer of 1949 he came to Detroit and worked as a laborer for the Adams Lumber Company until July, 1950. From August, 1950 to present he has been employed as a laborer and general maintenance man at the Great lakes Steel Corporation. Registrant previously was Catholic and has five sisters and a brother all of whom are Catholics. His parents were Catholics. His mother is dead and his father lives in an Antonio, Texas. Registrant's wife became a Jehovah's Witness in 1941 and registrant was baptized a member in February, 1950. In October, 1950, he became a `pioneer' and he participates in the usual activities of his sect, attending several weekly meetings including the Theocratic Ministry School. He also does houses to house work and shells the publications of the sect. Registrant bases his claim of exemption upon his own personal interpretation of the Bible with the guidance of the Watchtower Bible aid relies [348 U.S. 407, 411] particularly on the ten Commandments. He believes in the use of force in self defense. </s> "The investigation reflects that registrant is well regarded in the several communities in which he has lived and that he and his wife are said to be very religious. Neighbors advise that they hold Bible studies in their apartment and appear to devote considerable time to religious work. References and co-religiosities state that he is a devoted member of the sect and applies himself earnestly to his religious work. Employment records reveal that registrant was remembered as a good worker and that his record is good and contains no derogatory information. </s> "After a personal appearance, the Hearing Officer stated that registrant appeared to be a sincere Jehovah's Witness but concluded that his affiliation with that sect has been too recent and too closely related to his draft status to warrant the acceptance of his conscientious objector position as genuine. The fact that registrant became a member of the Jehovah's Witness sect one month after his Selective Service System registration in January, 1950, despite the fact that his wife had been a member for many years, lends weigh to this conclusion. </s> "After consideration of the entire file and record, the department of Justice finds that the registrant's objection to combatant and noncombatant service are not sustained. It is, therefore, recommended to your Board that registrant's claim for exemption from both combatant and noncombatant training and service do not sustained." </s> [Footnote 3 This section does provide that the Department of Justice shall make an "appropriate inquiry," and hold a "hearing" with respect to the claimed conscientious objections. If after such hearing it [348 U.S. 407, 412] finds the claims unfounded, "it shall recommend to the appeal board that such objections be not sustained." The regulations are of the same tenor, 32 CFR (1954 Supp.) 1626.25. </s> [Footnote 4 Inapplicable to the instant question are cases dealing with whether a recommendation or intermediate report is necessary to begin with, Labor Board v. Mackay Co., 304 U.S. 333 ; Public Service Corp. v. S. E. C., 129 f. 2D 899 (C. A. 3d Cir. 1942), whether the recommendation can be subjected to judicial review, Chicago & Southern Air Lines v. Waterman Corp., 333 U.S. 103 , and whether satisfactory procedures were employed in formulating the recommendation, Williams v. New York, 337 U.S. 241 ; Norwegian Nitrogen Co. v. United States, 288 U.S. 294 . The latter three cases are distinguishable, moreover,. because they do not involve individualized fact finding and classification, but legislative determinations, political judgments, and the exercise of judicial discretion in the imposition of sentence. </s> See also Mazza v. Cavicchia, 15 N. J. 498, 105 A. 2d 545 (1954). </s> [Footnote 5 "The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command." </s> [Footnote 6 See 32 CFR 1626.12. "The person appealing may attach to his appeal a statement specifying the matters in which he believes the local board erred, may direct attention to any information in the registrant's file which he believes the local board has failed to consider or to give sufficient weight, and may set out in full any information which was offered to the local board and which the local board failed or refused to include in the registrant's file." It is true that this section requires that the statement be made at the time the appeal is initiated. And 32 CFR 1626.24 (b) provides that "the appeal board shall not receive or consider any information which is not contained in the record received from the local board except (1) the advisory recommendation from the Department of Justice under 1626.25, and (2) general information concerning economic, industrial, and social conditions." But the broad scope of review provided in 1626.12 is inconsistent with any implication that registrants in conscientious objector cases are required to file their statements with the initial appeal. Such a requirement, if indeed the section is viewed as an absolute bar to supplemental and amendatory statements, may be proper in the normal case. But where the record is augmented on appeal, the registrant can effectively point out error and failure to consider only after the Department of Justice has acted. </s> [Footnote 7 See letter of General Hershey, February 4, 1955. </s> MR. JUSTICE REED, with whom MR. JUSTICE BURTON joins, dissenting. </s> I would affirm. The prescribed procedure, including especially the hearing before a hearing officer, provided adequate protection for petitioner, and I find no express or implied statutory or administrative requirement that the Department of Justice send to petitioner a copy of its advisory report to the Appeal Board. </s> The report of the Department of Justice is advisory only. As the registrant has, under Selective Service [348 U.S. 407, 418] Regulations, 32 CFR 1606.32 (a) (1), a right to examine the report, as well as all other information in the file, and under 1625 (1) and (2) reopen the classification on a showing of error, the "fair and just" requirement for a hearing is satisfied. United States v. Nugent, 346 U.S. 1 . </s> MR. JUSTICE MINTON, dissenting. </s> Because the regulations of the Board did not require the Department of Justice to send petitioner a copy of its advisory report, and since the petitioner did not request that he be allowed to see the report or a summary thereof, the action of the Board was not arbitrary and capricious. The Board did not lose its jurisdiction or act beyond it. I would affirm. </s> [348 U.S. 407, 419]

United States Supreme Court NELSON v. GEORGE(1970) No. 595 Argued: March 31, 1970Decided: June 29, 1970 </s> Respondent, who is serving a sentence under a California conviction, was tried, convicted, and sentenced in North Carolina, and a detainer, requested by North Carolina, was noted by petitioner California warden. Respondent sought a writ of habeas corpus from a Federal District Court in California, attacking his North Carolina conviction. His application was denied and in his petition for rehearing he argued that the detainer acted as a form of constructive custody as it adversely affected his parole potential and the degree of security in which he was detained. Rehearing was denied on the basis of McNally v. Hill, 293 U.S. 131 , and respondent appealed to the Court of Appeals. The intervening decision in Peyton v. Rowe, 391 U.S. 54 , overruled McNally v. Hill, and held that a state prisoner serving consecutive sentences in the forum State is "in custody" for purposes of jurisdiction for collateral attack. The Court of Appeals held that the District Court had jurisdiction to consider respondent's claims concerning the impact of the detainer. Held: </s> 1. Since the California courts, which are not required to enforce a foreign penal judgment, have not been presented with the question of what effect, if any, they will give the North Carolina detainer in terms of respondent's present "custody," respondent has not exhausted his California remedies. P. 229. </s> 2. The Federal District Court should retain jurisdiction of the petition for writ of habeas corpus pending respondent's application to the California courts for appropriate relief if he establishes his claim that the detainer interferes with relief that California might grant in the absence of the detainer. Pp. 229-230. </s> 410 F.2d 1179, affirmed. </s> Louise H. Renne, Deputy Attorney General of California, argued the cause for petitioner. With her on the briefs were Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Edward P. O'Brien, Deputy Attorney General. [399 U.S. 224, 225] </s> George A. Cumming, Jr., by appointment of the Court, 397 U.S. 901 , argued the cause and filed a brief for respondent. </s> MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. </s> We granted the writ in this case to consider whether the respondent, presently confined in California under a state conviction, may utilize the federal courts in California to test the validity of a North Carolina sentence before beginning to serve that sentence and while under a detainer filed by North Carolina. Respondent claims the sentence yet to be served in North Carolina is "consecutive" under Peyton v. Rowe, 391 U.S. 54 (1968). However, since his petition challenges the present effect being given the North Carolina detainer by the California authorities, particularly with respect to granting him parole, we have concluded that as to that claim respondent failed to exhaust his state remedies and accordingly do not reach the question for which the writ was granted. </s> The record discloses that on April 27, 1964, John Edward George was convicted on a plea of guilty in a California court of first-degree robbery. He began serving his sentence of five years to life at San Quentin. 1 Following his conviction, detainers were filed in California by the States of Kansas, Nevada, and North Carolina, on June 4, 10, and 11, 1964, respectively. </s> Exercising his right under Article III (a) of the interstate "Agreement on Detainers," 2 George requested temporary release to stand trial on the underlying robbery charge pending in North Carolina. Accordingly, on July 20, 1966, he was released to North Carolina authorities [399 U.S. 224, 226] and transported there to stand trial. The North Carolina trial was held, and on February 8, 1967, George was convicted and sentenced to imprisonment for 12 to 15 years. The conviction was thereafter affirmed, State v. George, 271 N.C. 438, 156 S. E. 2d 845 (1967). </s> Following the North Carolina trial George was returned to San Quentin to complete service of his California sentence. On April 14, 1967, the clerk of the Gaston Country Superior Court addressed a letter to the Records Officer at San Quentin advising that George was "wanted at the termination of his imprisonment there for return to this jurisdiction to serve the sentence imposed in the Superior Court of Gaston County, North Carolina." The Warden of San Quentin acknowledged the detainer, indicating that it was "noted in our records." </s> George then brought a petition for habeas corpus in the United States District Court for the Northern District of California in which he sought to attack not his California conviction, for which he was then incarcerated, but the North Carolina conviction for which the detainer had been filed. The District Court denied the application by order dated March 1, 1968, on the ground that McNally v. Hill, 293 U.S. 131 (1934), foreclosed habeas corpus relief on the North Carolina conviction while George was still in custody under the prior California judgment. </s> George filed a petition for rehearing in the District Court in which he argued that even though he was actually serving time in a California jail and thus not technically serving his North Carolina sentence, habeas corpus was not foreclosed since the North Carolina detainer operated as a form of constructive custody. In support of his contention he drew upon the language in Arketa v. Wilson, 373 F.2d 582 (C. A. 9th Cir. 1967), to the effect that the strict rule of McNally v. Hill had been somewhat [399 U.S. 224, 227] eroded by this Court's subsequent decisions in Ex parte Hull, 312 U.S. 546 (1941), and Jones v. Cunningham, 371 U.S. 236 (1963), and that "it appears that there are situations in which the writ can be used to free a petitioner from a certain type of custody, rather than from all custody." Arketa v. Wilson, supra, at 584. George argued that the North Carolina warrant was "a form of custody" since it affected his custodial classification and probability of parole on his California sentence. 3 On March 20, 1968, the District Court denied the petition for rehearing and George appealed to the Court of Appeals for the Ninth Circuit. </s> Our decision in Peyton v. Rowe intervened. In that case we overruled McNally v. Hill, 293 U.S. 131 (1934), and held that a state prisoner serving consecutive sentences in the forum state is "in custody" under each sentence for purposes of jurisdiction for collateral attack under 28 U.S.C. 2241 (c) (3), 4 thus permitting a federal habeas corpus action to test a future state sentence while he is serving an earlier sentence. In Peyton v. Rowe the consecutive sentences were imposed by the forum State, and the sentences were being served in that State's prison. Unlike the case now before us, in such a [399 U.S. 224, 228] single-state situation the challenge to the continuing vitality of Ahrens v. Clark, 335 U.S. 188 (1948), does not arise. See Word v. North Carolina, 406 F.2d 352 (C. A. 4th Cir. 1969). 5 </s> As we have noted, having named the Warden of San Quentin as the respondent in his amended petition to the Federal District Court in California and having had his petition refused, George sought rehearing. In that application George alleged that the California authorities had imposed upon him a "form of custody" because of the North Carolina detainer. Specifically, he alleged [399 U.S. 224, 229] that the mere presence of the detainer adversely affected the probability of his securing parole and the degree of security in which he was detained by state authorities. California denies that the existence of the detainer has any consequences affecting his parole potential or custodial status. </s> Since the Full Faith and Credit Clause does not require that sister States enforce a foreign penal judgment, Huntington v. Attrill, 146 U.S. 657 (1892); cf. Milwaukee County v. M. E. White Co., 296 U.S. 268, 279 (1935), California is free to consider what effect, if any, it will give to the North Carolina detainer in terms of George's present "custody." 6 Because the petition for rehearing raised precisely such a challenge to the California "custody," a matter that has not yet been presented to the California courts, we conclude that respondent George has not yet exhausted his California remedies. See Ex parte Royall, 117 U.S. 241 (1886). </s> Respondent insists that the very presence of the North Carolina detainer has and will continue to have an adverse impact on California's consideration of his claim for parole. Therefore, the United States District Court in California should retain jurisdiction of the petition for habeas corpus relief pending respondent's further application to the California courts for whatever relief, if any, may be available and appropriate if he establishes his claim that North Carolina's detainer interferes with relief that might, in the absence of the detainer, be granted by California. We affirm the judgment of the [399 U.S. 224, 230] Court of Appeals to the extent it finds jurisdiction in the District Court to consider respondent's claims with respect to the impact of the detainer if respondent elects to press those claims after he exhausts his remedies in the California courts. </s> Affirmed. </s> MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Under California law the sentence for first-degree robbery is an indeterminate five years to life sentence in the discretion of the California Adult Authority. Cal. Pen. Code 213. </s> [Footnote 2 Cal. Pen. Code 1389 (Supp. 1968). </s> [Footnote 3 App. 26. </s> [Footnote 4 " 2241. Power to grant writ. </s> "(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. </s> . . . . . </s> "(c) The writ of habeas corpus shall not extend to a prisoner unless - </s> . . . . . </s> "(3) He is in custody in violation of the Constitution or laws or treaties of the United States . . . ." </s> [Footnote 5 In that case Chief Judge Haynsworth, expressing the views of the majority of the Court of Appeals for the Fourth Circuit sitting en banc, concluded that Ahrens v. Clark was a venue decision, and that the physical presence of the petitioner within the district was not an invariable requirement if rigid adherence to the rule would leave one in prison without an effective remedy. The legislative history of the 1966 amendments to 28 U.S.C. 2241 (d) (1964 ed., Supp. V) suggests that Congress may have intended to endorse and preserve the territorial rule of Ahrens to the extent that it was not altered by those amendments. See H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966). See also S. Rep. No. 1502, 89th Cong., 2d Sess. (1966). Those changes were made by Congress, of course, prior to our decision in Peyton v. Rowe; necessarily Congress could not have had the multistate problem with which we are now confronted in mind. Whether, in light of the legislative history of 2241 (d) and the changed circumstances brought about by Peyton v. Rowe, the rigor of our Ahrens holding may be reconsidered is an issue upon which we reserve judgment. </s> However, we note that prisoners under sentence of a federal court are confronted with no such dilemma since they may bring a challenge at any time in the sentencing court irrespective of where they may be incarcerated. 28 U.S.C. 2255. It is anomalous that the federal statutory scheme does not contemplate affording state prisoners that remedy. The obvious, logical, and practical solution is an amendment to 2241 to remedy the shortcoming that has become apparent following the holding in Peyton v. Rowe. Sound judicial administration calls for such an amendment. </s> [Footnote 6 We are not here concerned with the scope of California's ultimate duty, imposed by Art. IV, 2, cl. 2, of the Constitution, to extradite persons wanted for trial or execution of sentence in a sister State. We note only that, until the obligation to extradite matures, the Full Faith and Credit Clause does not require California to enforce the North Carolina penal judgment in any way. </s> MR. JUSTICE HARLAN, with whom MR. JUSTICE MARSHALL joins, concurring. </s> I join the Court's opinion with the following observations. First, I do not understand the Court to suggest that respondent's failure to exhaust state remedies with respect to his claim that California is giving a constitutionally impermissible effect to his North Carolina conviction, rendered it improper for the federal courts to consider his challenge to the validity of the North Carolina conviction to the extent that he had exhausted North Carolina remedies with respect thereto. Second, agreeing with the reasons given by the Court for not reaching the propriety of the Court of Appeals' resolution of respondent's challenge to the North Carolina conviction, I would dismiss that part of the writ as improvidently granted. Third, pending the congressional action that the Court's opinion envisages, I think it not inappropriate to leave undisturbed such conflicts as exist between the decision of the Court of Appeals in the present case and decisions in other circuits, see Word v. North Carolina, 406 F.2d 352 (C. A. 4th Cir. 1969); United States ex rel. Van Scoten v. Pennsylvania, 404 F.2d 767 (C. A. 3d Cir. 1968), respecting the proper treatment of habeas corpus claims such as those involved in respondent's challenge in the California courts to the validity of his North Carolina conviction. [399 U.S. 224, 231] </s> MR. JUSTICE DOUGLAS, dissenting. </s> This California prisoner is seeking to challenge by federal habeas corpus the constitutionality of his conviction in North Carolina, the sentence for which he must serve when he finishes his California term. The infirmities of the North Carolina judgment that he alleges relate to the absence of a speedy trial and to the knowing use of perjured testimony. North Carolina filed a detainer against him in California; and it is that detainer, not the North Carolina judgment, that the Court uses to avoid decision on the basic issue raised in the petition. The petition for habeas corpus stated, "It is the North Carolina Supreme Court decision that is under attack here." The only reference to a detainer made in the petition was to the detainer filed prior to his return to North Carolina for trial. The reference to the detainer filed after his North Carolina conviction was made in his petition for rehearing. The District Court had dismissed the petition before Peyton v. Rowe, 391 U.S. 54 , was decided; and in his argument for a rehearing the prisoner sought to distinguish McNally v. Hill, 293 U.S. 131 , which Peyton v. Rowe overruled, by arguing that his case was different because the North Carolina detainer was being used to his disadvantage in California. Both the petition for habeas corpus and the petition for rehearing were pro se products. Thus the false issue got into the case. </s> The Court holds that the challenge of the North Carolina judgment may not yet be made in California because the prisoner has not yet shown under California law whether the existence of the North Carolina detainer can affect or is affecting his parole potential or custodial status and therefore that he has not exhausted his remedies under 28 U.S.C. 2254 (1964 ed., Supp. V). [399 U.S. 224, 232] </s> The remedies with which 28 U.S.C. 2254 (1964 ed., Supp. V) 1 is concerned relate to those which would remove the infirmities in the North Carolina judgment, making unnecessary federal intervention. Plainly, California can supply no such remedies. </s> The remedies to which the Court adverts are of a wholly different character - they concern California procedures for correcting any improper use in California of North Carolina's judgment. They are wholly irrelevant to the reasons why we held in Peyton v. Rowe that a state prisoner serving one sentence may challenge by federal habeas corpus the constitutionality of a second state sentence scheduled for future service. We ruled that if prisoners had to wait until the first sentence was served before the constitutionality of the second could be challenged, grave injustices might be done: </s> "By that time, dimmed memories or the death of witnesses is bound to render it difficult or impossible to secure crucial testimony on disputed issues of fact. . . . To name but a few examples [of prejudice resulting from the kind of delay McNally imposes], factual determinations are often dispositive of claims of coerced confession . . .; lack of competency to stand trial . . .; and denial of a fair trial . . . . Postponement of the adjudication of [399 U.S. 224, 233] such issues for years can harm both the prisoner and the State and lessens the probability that final disposition of the case will do substantial justice." 391 U.S., at 62 . </s> If the prisoner was seeking to escape the rigors of the detainer filed by North Carolina, the exhaustion of California remedies would of course be proper. But the gravamen of the petition for habeas corpus concerned the validity of North Carolina's judgment and that is "the question presented" within the meaning of 28 U.S.C. 2254 (1964 ed., Supp. V). </s> The Court of Appeals, 410 F.2d 1179, did not decide that only California, not North Carolina, could pass on the merits of the petition, viz., on the validity or invalidity of the North Carolina judgment. It emphasized that there were practical difficulties whichever forum were chosen. Id., at 1182. Trying the issues in California would put a burden on North Carolina prosecutors and witnesses. Trying the issues in North Carolina would entail problems of expense and security insofar as the prisoner's appearance there was needed. The fact that the federal court in California has "jurisdiction," it ruled, does not mean that it could not transfer the cause to the federal court in North Carolina. 2 </s> [399 U.S. 224, 234] </s> The Court of Appeals left open for the informed discretion of the District Court the question of how and where the prisoner may be heard on the constitutionality of the North Carolina judgment. I would affirm the Court of Appeals and reserve for another day the question whether the application could be transferred to North Carolina for hearing. </s> [Footnote 1 "(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. </s> "(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." (Italics added.) </s> [Footnote 2 See 28 U.S.C. 1404 (a); Word v. North Carolina, 406 F.2d 352. </s> In H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2, it is stated: </s> "Section 2241 of title 28, United States Code, vests jurisdiction to entertain habeas corpus applications only in the district court for the district in which the prisoner is confined (Ahrens v. Clark, 335 U.S. 188 ). Further, since there is no other forum `. . . where it might have been brought,' the application may not be transferred to a different district pursuant to the provisions of section 1404 (a) of title 28, United States Code (Hoffman v. Blaski, 363 U.S. 335 )." See also S. Rep. No. 1502, 89th Cong., 2d Sess. These reports are concerned with the 1966 amendment to 2241, which permits the [399 U.S. 224, 234] district court in whose district a habeas petitioner was convicted to consider the habeas petition even though the habeas petitioner is incarcerated outside the jurisdiction of that district court so long as the habeas petitioner is incarcerated within the State in which the district court sits. The 1966 amendment thus solves the problem posed by Ahrens but only where the district of his incarceration and the district in which he was convicted are in the same State. Section 2241, as construed in Ahrens, was thus left unaffected where the districts involved are in different States. </s> [399 U.S. 224, 235]

United States Supreme Court FIRST NAT. BANK v. WALKER BANK(1966) No. 51 Argued: Decided: December 12, 1966 </s> [Footnote * Together with No. 73, First Security Bank of Utah, N. A. v. Commercial Security Bank, and No. 88, Saxon, Comptroller of the Currency v. Commercial Security Bank, on certiorari to the United States Court of Appeals for the District of Columbia Circuit. </s> The provisions of the National Bank Act, 12 U.S.C. 36 (c), which authorize a national banking association, with the Comptroller of the Currency's approval, to establish and operate branch banks if such operation is "at the time expressly authorized to State banks by the law of the State in question," place national and state banks on a basis of "competitive equality" as far as branch banking is concerned, and national banks may establish branches only in accordance with all requirements and conditions applicable to state banks by state law. Pp. 256-262. </s> No. 51, 352 F.2d 90; and Nos. 73 and 88, affirmed. </s> Theodore S. Perry argued the cause and filed briefs for petitioner in No. 51. John J. Wilson argued the cause for petitioner in No. 73. With him on the briefs was Charles J. Steele. Richard A. Posner argued the cause for petitioner in No. 88. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Douglas, David L. Rose and Kathryn H. Baldwin. </s> Joseph S. Jones argued the cause and filed a brief for respondent in No. 51. James F. Bell argued the cause and filed a brief for respondent in Nos. 73 and 88. </s> Robert Y. Button, Attorney General, and Kenneth C. Patty, Assistant Attorney General, filed a brief for the Commonwealth of Virginia, as amicus curiae, urging [385 U.S. 252, 253] affirmance in all cases. Henry T. Wickham filed a brief for the Virginia Bankers Association, as amicus curiae, urging affirmance in Nos. 73 and 88. </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> These cases involve the construction of those portions of the National Bank Act, 44 Stat. 1228, 12 U.S.C. 36 (c), which authorize a national banking association, with the approval of the Comptroller of the Currency, to establish and operate new branches within the limits of the municipality in which the bank is located, if such operation is "at the time expressly authorized to State banks by the law of the State in question." 1 Two national banks with their main banking houses in Logan and Ogden, Utah, respectively, seek to open branches in those municipalities. The Utah statute prohibits Utah banks, with certain exceptions not here relevant, from establishing branches except by taking over an existing bank which has been in operation for not less than five years. Utah Code Ann., Tit. 7, c. 3, 6 (1965 Supp.). 2 In No. 51, [385 U.S. 252, 254] First National Bank of Logan v. Walker Bank & Trust Co., the petitioner seeks to establish a new branch in Logan, where its principal banking house is located, without taking over an established bank. The District Court approved its doing so but the Court of Appeals reversed. 352 F.2d 90 (C. A. 10th Cir.), sub nom. Walker Bank & Trust Co. v. Saxon. In No. 73, First Security Bank of Utah, N. A. v. Commercial Security Bank, and No. 88, Saxon v. Commercial Security Bank, First Security seeks to establish a new branch in Ogden, in which its home office is situated, without taking over an established bank. The District Court held that state law must be complied with, 236 F. Supp. 457, and the Court of Appeals affirmed in a judgment, without opinion, citing Walker Bank & Trust Co., supra. In view of a conflict between these holdings and the decision in First National Bank of Smithfield v. Saxon, 352 F.2d 267 (C. A. 4th Cir.), we granted certiorari, and consolidated the three cases for argument. 384 U.S. 925 . We affirm the judgments. </s> 1. The Facts. </s> In No. 51, the petitioner maintains its principal banking house in Logan, Utah, which is a second class city [385 U.S. 252, 255] under Utah law (Utah Code Ann., Tit. 10, c. 1, 1 (1953, as amended), and is therefore subject to 7-3-6 of the Utah Code, supra. It applied to the Comptroller of the Currency for a certificate to establish an "inside" branch office in Logan. At the time of the application there were no other banks with their main banking offices in Logan. However, there were two branches of banks whose home offices were situated outside of Logan, one of which belonged to respondent, Walker Bank & Trust Co., whose home office was located in Salt Lake City. After a hearing, the Comptroller ordered the certificate issued. The respondent subsequently filed this suit seeking a declaratory judgment and injunctive relief against the Comptroller and First National claiming the action of the Comptroller to be void since the proposed branch was not taking over an established bank in Logan, as required by Utah law. The District Court dismissed the complaint. It found "express authority" under Utah law for state banks to establish branch offices in Logan, relying on the general authority of the statute and holding that the subsequent conditions, such as the acquisition of another bank, did not "change the `express authority' into a lack of authority on the part of State banks or a lack of a statutory expression of such authority, and [did] not add to the Federal statute a requirement that compliance be made by National banks with all State conditions." 234 F. Supp. 74, 78, n. 8. The Court of Appeals reversed, holding that the Congress in enacting 36 (c) (1) acceded to state law and created "a competitive equality between state and national banks." Finding that the trial court's interpretation was to the contrary, it declared "the proper approach is for the Comptroller to look at all the State law on branch banking not just part of it." 352 F.2d 90, 94. [385 U.S. 252, 256] </s> In Nos. 73 and 88, the First Security Bank of Utah, a national bank, applied for a certificate from the Comptroller to establish a branch bank in Ogden, where it maintained its principal banking house. Its proposal was to open a new branch and not to take over an existing bank in Ogden. Under Utah law, Ogden is also a second class city and the "take over" provision of 7-3-6, supra, was therefore applicable. Two other banks have their main offices in Ogden. After the Comptroller approved the issuance of the certificate, respondent filed suit in the District Court of the United States for the District of Columbia asking for injunctive and other relief. The District Court imposed all of the restrictions of 7-3-6 of Utah law on the establishment of national banks and the Court of Appeals for the District of Columbia Circuit affirmed, by a judgment without opinion, but cited the opinion of the 10th Circuit, Walker Bank & Trust Co., supra. </s> 2. The National Bank Act: Its Background. </s> There has long been opposition to the exercise of federal power in the banking field. Indeed, President Jefferson was opposed to the creation of the first Bank of the United States and President Jackson vetoed the Act of Congress extending the charter of the second Bank of the United States. However, the authority of Congress to act in the field was resolved in the landmark case of McCulloch v. Maryland, 4 Wheat. 316 (1819). There Chief Justice Marshall, while admitting that it does not appear that a bank was in the contemplation of the Framers of the Constitution, held that a national bank could be chartered under the implied powers of the Congress as an instrumentality of the Federal Government to implement its fiscal powers. The paramount power of the Congress over national banks has, therefore, been settled for almost a century and a half. [385 U.S. 252, 257] </s> Nevertheless, no national banking act was adopted until 1863 (12 Stat. 665), and it was not until 1927 that Congress dealt with the problem before us in these cases. This inaction was possibly due to the fact that at the turn of the century, there were very few branch banks in the country. At that time only five national and 82 state banks were operating branches with a total of 119 branches. By the end of 1923, however, there were 91 national and 580 state banks with a total of 2,054 branches. 3 The Comptroller of the Currency, in his Annual Report of 1923, recommended congressional action on branch banking. The report stated that if state banks continue to engage "in unlimited branch banking it will mean the eventual destruction of the national banking system . . . ." H. R. Doc. No. 90, 68th Cong., 1st Sess., 6 (1924). Soon thereafter legislation was introduced to equalize national and state branch banking. The House Report on the measure, H. R. Rep. No. 83, 69th Cong., 1st Sess., 7 (1926), stated among other things: </s> "The bill recognizes the absolute necessity of taking legislative action with reference to the branch banking controversy. The present situation is intolerable to the national banking system. The bill proposes the only practicable solution by stopping the further extension of state-wide branch banking in the Federal reserve system by State member banks and by permitting national banks to have branches in those cities where State banks are allowed to have them under State laws." </s> This bill failed to pass in the Senate and, although Congress continued to study the problem, it was not until [385 U.S. 252, 258] 1927 that the McFadden Act was adopted. The bill originated in the House and, in substance, proposed that both national and state banks be permitted to establish "inside" branches within the municipality of their main banking facilities in those States that permitted branch banking at the time of the enactment of the bill. H. R. Rep. No. 83, 69th Cong., 1st Sess., 4-5 (1926). The intent of the Congress to leave the question of the desirability of branch banking up to the States is indicated by the fact that the Senate struck from the House bill the time limitation, thus permitting a subsequent change in state law to have a corresponding effect on the authority of national banks to engage in branching. The Senate Report concluded that the Act should permit "national banks to have branches in those cities where State banks are allowed to have them under State laws." S. Rep. No. 473, 69th Cong., 1st Sess., 14 (1926). In the subsequent Conference Committee, the Senate position was adopted. State banks which were members of the Federal Reserve System were also limited to "inside" branches. A grandfather clause permitted retention of branches operated at the date of enactment. H. R. Rep. No. 1481, 69th Cong., 1st Sess., 6 (1926). The Act was finally passed on February 25, 1927, and became known as the McFadden Act of 1927, taking its name from its sponsor, Representative McFadden. At the time of its enactment he characterized it in this language: </s> "As a result of the passage of this act, the national bank act has been so amended that national banks are able to meet the needs of modern industry and commerce and competitive equality has been established among all member banks of the Federal reserve system." (Emphasis added.) 68 Cong. Rec. 5815 (1927). [385 U.S. 252, 259] </s> During the economic depression there was much agitation that bank failures were due to small undercapitalized rural banks and that these banks should be supplanted by branches of larger and stronger banks. The Comptroller of the Currency advocated that national banks be permitted to branch regardless of state law. Hearings before a Subcommittee of the Senate Committee on Banking and Currency pursuant to S. Res. No. 71, 71st Cong., 3d Sess., 7-10 (1931). Senator Carter Glass held a similar belief and introduced a bill that would authorize national banks to organize branches irrespective of state law beyond and "outside" the municipality of its principal banking house. His proposal was strenuously opposed and was eventually defeated. It was not until the Seventy-third Congress that the Banking Act of 1933 was adopted. Senator Glass, the ranking member of the Senate Committee on Banking and Currency and the dominant banking figure in the Congress, was sponsor of the Act. In reporting it to the Senate for passage, he said, the Act "required that the establishment of branch banks by national banks in States which by law permit branch banking should be under the regulations required by State law of State banks." 77 Cong. Rec. 3726 (1933). In a colloquy on the floor of the Senate with Senator Copeland as to the purpose of the Act (with reference to branch banking by national banks), Senator Glass said that it would be permissible "in only those States the laws of which permit branch banking, and only to the extent that the State laws permit branch banking." Moreover, to make it crystal clear, when Senator Copeland replied that "it permits branch banking only in those States where the State laws permit branch banking by State banks," Senator Glass was careful to repeat: "Only in those States and to the extent that the State laws permit branch banking." (Emphasis added.) 76 Cong. Rec. 2511 (1933). Remarks of other [385 U.S. 252, 260] members of Congress also indicate that they shared the understanding of Senator Glass. For example, Senator Vandenberg stated that 36 (c) (1) provides "that the branch-banking privilege so far as national banks are concerned shall follow the status established by State law in respect to the State privilege." 76 Cong. Rec. 2262 (1933). Likewise, Senator Long, who had joined a filibuster against an earlier version of the bill, stated at final passage that "[w]e have only undertaken to secure equal treatment for State banks" and that the bill had substantially achieved that result. 77 Cong. Rec. 5862 (1933). In similar tone, Representative Bacon stated that branches of national banks may be established provided "this is permitted by the laws of that State and subject to them." (Emphasis added.) 77 Cong. Rec. 3949 (1933). And Representative Luce, a member of the Conference Committee, reported to the House: </s> "In the controversy over the respective merits of what are known as `unit banking' and `branch banking systems,' a controversy that has been alive and sharp for years, branch banking has been steadily gaining in favor. It is not, however, here proposed to give the advocates of branch banking any advantage. We do not go an inch beyond saying that the two ideas shall compete on equal terms and only where the States make the competition possible by letting their own institutions have branches." 77 Cong. Rec. 5896 (1933). </s> As finally passed, the Act permitted national banks to establish outside branches if such branches could be establish by state banks under state law. It is well to note that the same Act also removed the restriction on outside branch banking by state member banks previously imposed by the McFadden Act. [385 U.S. 252, 261] </s> 3. The Policy of Competitive Equality. </s> It appears clear from this resume of the legislative history of 36 (c) (1) and (2) that Congress intended to place national and state banks on a basis of "competitive equality" insofar as branch banking was concerned. Both sponsors of the applicable banking Acts, Representative McFadden and Senator Glass, so characterized the legislation. It is not for us to so construe the Acts as to frustrate this clear-cut purpose so forcefully expressed by both friend and foe of the legislation at the time of its adoption. To us it appears beyond question that the Congress was continuing its policy of equalization first adopted in the National Bank Act of 1864. See Lewis v. Fidelity & Deposit Co., 292 U.S. 559, 565 -566 (1934); McClellan v. Chipman, 164 U.S. 347 (1896); Chase Securities Corp. v. Husband, 302 U.S. 660 (1938); Anderson Nat. Bank v. Luckett, 321 U.S. 233 (1944). </s> The Comptroller argues that Utah's statute "expressly authorizes" state banks to have branches in their home municipalities. He maintains that the restriction, in the subsequent paragraph of the statute limiting branching solely to the taking over of an existing bank, is not applicable to national banks. It is a strange argument that permits one to pick and choose what portion of the law binds him. Indeed, it would fly in the face of the legislative history not to hold that national branch banking is limited to those States the laws of which permit it, and even there "only to the extent that the State laws permit branch banking." Utah clearly permits it "only to the extent" that the proposed branch takes over an existing bank. </s> The Comptroller also contends that the Act supersedes state law only as to "whether" and "where" branches may be located and not the "method" by which this is effected. [385 U.S. 252, 262] We believe that where a State allows branching only by taking over an existing bank, it expresses as much "whether" and "where" a branch may be located as does a prohibition or a limitation to the home office municipality. As to the restriction being a "method," we have concluded that since it is part and parcel of Utah's policy, it was absorbed by the provisions of 36 (c) (1) and (2), regardless of the tag placed upon it. </s> Affirmed. </s> Footnotes [Footnote 1 The National Bank Act, 44 Stat. 1228, 12 U.S.C. 36 (c) (1) and (2) provides: </s> "(c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) Within the limits of the city, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks." </s> [Footnote 2 Utah Code Ann., Tit. 7, c. 3, 6 (1965 Supp.), provides: </s> "7-3-6, Business conducted at banking house - Branching of offices - Violation of section a misdemeanor. - The business of every [385 U.S. 252, 254] bank shall be conducted only at its banking house and every bank shall receive deposits and pay checks only at its banking house except as hereinafter provided. </s> . . . . . </s> "Except in cities of the first class, or within unincorporated areas of a county in which a city of the first class is located, no branch bank shall be established in any city or town in which is located a bank or banks, state or national, regularly transacting a customary banking business, unless the bank seeking to establish such branch shall take over an existing bank. No unit bank organized and operating at a point where there are other operating banks, state or national, shall be permitted to be acquired by another bank for the purpose of establishing a branch until such bank shall have been in operation as such for a period of five years." </s> [Footnote 3 Board of Governors of the Federal Reserve System, Banking Studies 15, 428 (1941). </s> [385 U.S. 252, 263]

United States Supreme Court HUGHES v. WASHINGTON(1967) No. 15 Argued: November 6, 1967Decided: December 11, 1967 </s> Petitioner's predecessor in title received from the Federal Government a grant of ocean-front realty in what is now the State of Washington. The State asserts that when it acquired statehood in 1889, its new constitution denied ocean-front property owners any further rights in accretion that might be formed between their property and the ocean. The trial court upheld petitioner's contention that the right to accretion remained subject to federal law and that she was the owner of the accreted lands. The State Supreme Court reversed, holding that state law controlled and that the State owned the lands. Held: This question is governed by federal law, under which a grantee of land bounded by navigable water acquires a right to accretion formed along the shore; and the petitioner, who traces her title to a federal grant prior to statehood, is the owner of these accretions. Pp. 291-294. </s> 67 Wash. 2d 799, 410 P.2d 20, reversed and remanded. </s> Charles B. Welsh argued the cause for petitioner. With him on the briefs was John Gavin. </s> Harold T. Hartinger, Assistant Attorney General of Washington, argued the cause for respondent. With him on the brief were John J. O'Connell, Attorney General, and J. R. Pritchard and John R. Miller, Assistant Attorneys General. </s> Assistant Attorney General Weisl argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Marshall, Robert S. Rifkind, Roger P. Marquis and George S. Swarth. </s> MR. JUSTICE BLACK delivered the opinion of the Court. </s> The question for decision is whether federal or state law controls the ownership of land, called accretion, gradually [389 U.S. 290, 291] deposited by the ocean on adjoining upland property conveyed by the United States prior to statehood. The circumstances that give rise to the question are these. Prior to 1889 all land in what is now the State of Washington was owned by the United States, except land that had been conveyed to private parties. At that time owners of property bordering the ocean, such as the predecessor in title of Mrs. Stella Hughes, the petitioner here, had under the common law a right to include within their lands any accretion gradually built up by the ocean. 1 Washington became a State in 1889, and Article 17 of the State's new constitution, as interpreted by its Supreme Court, denied the owners of ocean-front property in the State any further rights in accretion that might in the future be formed between their property and the ocean. This is a suit brought by Mrs. Hughes, the successor in title to the original federal grantee, against the State of Washington as owner of the tidelands to determine whether the right to future accretions which existed under federal law in 1889 was abolished by that provision of the Washington Constitution. The trial court upheld Mrs. Hughes' contention that the right to accretions remained subject to federal law, and that she was the owner of the accreted lands. The State Supreme Court reversed, holding that state law controlled and that the State owned these lands. 67 Wash. 2d 799, 410 P.2d 20 (1966). We granted certiorari. 385 U.S. 1000 (1967). We hold that this question is governed by federal, not state, law and that under federal law Mrs. Hughes, who traces her title to a federal grant prior to statehood, is the owner of these accretions. </s> While the issue appears never to have been squarely presented to this Court before, we think the path to decision [389 U.S. 290, 292] is indicated by our holding in Borax, Ltd. v. Los Angeles, 296 U.S. 10 (1935). In that case we dealt with the rights of a California property owner who held under a federal patent, and in that instance, unlike the present case, the patent was issued after statehood. We held that </s> "[t]he question as to the extent of this federal grant, that is, as to the limit of the land conveyed, or the boundary between the upland and the tideland, is necessarily a federal question. It is a question which concerns the validity and effect of an act done by the United States; it involves the ascertainment of the essential basis of a right asserted under federal law." 296 U.S., at 22 . </s> No subsequent case in this Court has cast doubt on the principle announced in Borax. See also United States v. Oregon, 295 U.S. 1, 27 -28 (1935). The State argues, and the court below held, however, that the Borax case should not be applied here because that case involved no question as to accretions. While this is true, the case did involve the question as to what rights were conveyed by the federal grant and decided that the extent of ownership under the federal grant is governed by federal law. This is as true whether doubt as to any boundary is based on a broad question as to the general definition of the shoreline or on a particularized problem relating to the ownership of accretion. See United States v. Washington, 294 F.2d 830, 832 (C. A. 9th Cir. 1961), cert. denied, 369 U.S. 817 (1962). We therefore find no significant difference between Borax and the present case. </s> Recognizing the difficulty of distinguishing Borax, respondent urges us to reconsider it. Borax itself, as well as United States v. Oregon, supra, and many other cases, makes clear that a dispute over title to lands owned by the Federal Government is governed by federal law, [389 U.S. 290, 293] although of course the Federal Government may, if it desires, choose to select a state rule as the federal rule. Borax holds that there has been no such choice in this area, and we have no difficulty in concluding that Borax was correctly decided. The rule deals with waters that lap both the lands of the State and the boundaries of the international sea. This relationship, at this particular point of the marginal sea, is too close to the vital interest of the Nation in its own boundaries to allow it to be governed by any law but the "supreme Law of the Land." </s> This brings us to the question of what the federal rule is. The State has not attempted to argue that federal law gives it title to these accretions, and it seems clear to us that it could not. A long and unbroken line of decisions of this Court establishes that the grantee of land bounded by a body of navigable water acquires a right to any natural and gradual accretion formed along the shore. In Jones v. Johnston, 18 How. 150 (1856), a dispute between two parties owning land along Lake Michigan over the ownership of soil that had gradually been deposited along the shore, this Court held that "[l]and gained from the sea either by alluvion or dereliction, if the same be by little and little, by small and imperceptible degrees, belongs to the owner of the land adjoining." 18 How., at 156. The Court has repeatedly reaffirmed this rule, County of St. Clair v. Lovingston, 23 Wall. 46 (1874); Jefferis v. East Omaha Land Co., 134 U.S. 178 (1890), 2 and the soundness of the principle is scarcely open to question. Any other rule would leave riparian owners continually in danger of losing the access to water which is often the most valuable feature of their property, and continually [389 U.S. 290, 294] vulnerable to harassing litigation challenging the location of the original water lines. While it is true that these riparian rights are to some extent insecure in any event, since they are subject to considerable control by the neighboring owner of the tideland, 3 this is insufficient reason to leave these valuable rights at the mercy of natural phenomena which may in no way affect the interests of the tideland owner. See Stevens v. Arnold, 262 U.S. 266, 269 -270 (1923). We therefore hold that petitioner is entitled to the accretion that has been gradually formed along her property by the ocean. </s> The judgment below is reversed, and the case is remanded to the Supreme Court of Washington for further proceedings not inconsistent with this opinion. </s> Reversed and remanded. </s> MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Jones v. Johnston, 18 How. 150 (1856); County of St. Clair v. Lovingston, 23 Wall. 46 (1874). </s> [Footnote 2 In Ker & Co. v. Couden, 223 U.S. 268 (1912), Mr. Justice Holmes, writing for the Court, held that under the governing Spanish law, lands added to the shore by accretion in the Philippines belonged to the public domain rather than to the adjacent estate. </s> [Footnote 3 It has been held that a State may, without paying compensation, deprive a riparian owner of his common-law right to utilize the flowing water, St. Anthony Falls Water Power Co. v. Water Comm'rs, 168 U.S. 349 (1897), or to build a wharf over the water, Shively v. Bowlby, 152 U.S. 1 (1894). It has also been held that the State may fill its tidelands and thus block the riparian owner's natural access to the water. Port of Seattle v. Oregon & W. R. Co., 255 U.S. 56 (1921). </s> MR. JUSTICE STEWART, concurring. </s> I fully agree that the extent of the 1866 federal grant to which Mrs. Hughes traces her ownership was originally measurable by federal common law, and that under the applicable federal rule her predecessor in title acquired the right to all accretions gradually built up by the sea. For me, however, that does not end the matter. For the Supreme Court of Washington decided in 1966, in the case now before us, that Washington terminated the [389 U.S. 290, 295] right to oceanfront accretions when it became a State in 1889. The State concedes that the federal grant in question conferred such a right prior to 1889. But the State purports to have reserved all post-1889 accretions for the public domain. Mrs. Hughes is entitled to the beach she claims in this case only if the State failed in its effort to abolish all private rights to seashore accretions. </s> Surely it must be conceded as a general proposition that the law of real property is, under our Constitution, left to the individual States to develop and administer. And surely Washington or any other State is free to make changes, either legislative or judicial, in its general rules of real property law, including the rules governing the property rights of riparian owners. Nor are riparian owners who derive their title from the United States somehow immune from the changing impact of these general state rules. Joy v. St. Louis, 201 U.S. 332, 342 . For if they were, then the property law of a State like Washington, carved entirely out of federal territory, would be forever frozen into the mold it occupied on the date of the State's admission to the Union. It follows that Mrs. Hughes cannot claim immunity from changes in the property law of Washington simply because her title derives from a federal grant. Like any other property owner, however, Mrs. Hughes may insist, quite apart from the federal origin of her title, that the State not take her land without just compensation. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 236 -241. </s> Accordingly, if Article 17 of the Washington Constitution had unambiguously provided, in 1889, that all accretions along the Washington coast from that day forward would belong to the State rather than to private riparian owners, this case would present two questions not discussed by the Court, both of which I think exceedingly difficult. First: Does such a prospective change in state [389 U.S. 290, 296] property law constitute a compensable taking? Second: If so, does the constitutional right to compensation run with the land, so as to give not only the 1889 owner, but also his successors - including Mrs. Hughes - a valid claim against the State? </s> The fact, however, is that Article 17 contained no such unambiguous provision. In that Article, the State simply asserted its ownership of "the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes." In the present case the Supreme Court of Washington held that, by this 1889 language, "[l]ittoral rights of upland owners were terminated." 67 Wash. 2d 799, 816, 410 P.2d 20, 29. Such a conclusion by the State's highest court on a question of state law would ordinarily bind this Court, but here the state and federal questions are inextricably intertwined. For if it cannot reasonably be said that the littoral rights of upland owners were terminated in 1889, then the effect of the decision now before us is to take from these owners, without compensation, land deposited by the Pacific Ocean from 1889 to 1966. </s> We cannot resolve the federal question whether there has been such a taking without first making a determination of our own as to who owned the seashore accretions between 1889 and 1966. To the extent that the decision of the Supreme Court of Washington on that issue arguably conforms to reasonable expectations, we must of course accept it as conclusive. But to the extent that it constitutes a sudden change in state law, unpredictable in terms of the relevant precedents, no such deference would be appropriate. For a State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple [389 U.S. 290, 297] device of asserting retroactively that the property it has taken never existed at all. Whether the decision here worked an unpredictable change in state law thus inevitably presents a federal question for the determination of this Court. See Demorest v. City Bank Co., 321 U.S. 36, 42 -43. Cf. Indiana ex rel. Anderson v. Brand, 303 U.S. 95 . The Washington court insisted that its decision was "not startling." 67 Wash. 2d 799, 814, 410 P.2d 20, 28. What is at issue here is the accuracy of that characterization. </s> The state court rested its result upon Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539, but that decision involved only the relative rights of the State and the upland owner in the tidelands themselves. The Eisenbach court declined to resolve the accretions question presented here. This question was resolved in 1946, in Ghione v. State, 26 Wash. 2d 635, 175 P.2d 955. There the State asserted, as it does here, that Article 17 operated to deprive private riparian owners of post-1889 accretions. The Washington Supreme Court rejected that assertion in Ghione and held that, after 1889 as before, title to gradual accretions under Washington law vested in the owner of the adjoining land. In the present case, 20 years after its Ghione decision, the Washington Supreme Court reached a different conclusion. The state court in this case sought to distinguish Ghione: The water there involved was part of a river. But the Ghione court had emphatically stated that the same "rule of accretion . . . applies to both tidewaters and fresh waters." 26 Wash. 2d 635, 645, 175 P.2d 955, 961. I can only conclude, as did the dissenting judge below, that the state court's most recent construction of Article 17 effected an unforeseeable change in Washington property law as expounded by the State Supreme Court. </s> There can be little doubt about the impact of that change upon Mrs. Hughes: The beach she had every [389 U.S. 290, 298] reason to regard as hers was declared by the state court to be in the public domain. Of course the court did not conceive of this action as a taking. As is so often the case when a State exercises its power to make law, or to regulate, or to pursue a public project, pre-existing property interests were impaired here without any calculated decision to deprive anyone of what he once owned. But the Constitution measures a taking of property not by what a State says, or by what it intends, but by what it does. Although the State in this case made no attempt to take the accreted lands by eminent domain, it achieved the same result by effecting a retroactive transformation of private into public property - without paying for the privilege of doing so. Because the Due Process Clause of the Fourteenth Amendment forbids such confiscation by a State, no less through its courts than through its legislature, and no less when a taking is unintended than when it is deliberate, I join in reversing the judgment. </s> [389 U.S. 290, 299]

United States Supreme Court SPENCE v. NORTH CAROLINA(1968) No. 759 Argued: Decided: June 17, 1968 </s> [Footnote * Together with No. 1311, Misc., Ellison v. Texas, and No. 1823, Misc., Jackson v. Beto, Corrections Director, both on petitions for writs of certiorari. No. 1311, Misc., is to the Court of Criminal Appeals of Texas, and No. 1823, Misc., to the Court of Appeals for the Fifth Circuit. </s> Certiorari granted; No. 759, Misc., 271 N.C. 23, 155 S. E. 2d 802; No. 1311, Misc., 419 S. W. 2d 849; and No. 1823, Misc., 388 F.2d 409, vacated and remanded. </s> Sam Houston Clinton, Jr., for petitioner in No. 1311, Misc. </s> T. W. Bruton, Attorney General of North Carolina, and Harry W. McGalliard, Deputy Attorney General, for respondent in No. 759, Misc. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Hawthorne Phillips and Lonny F. Zwiener, Assistant Attorneys General, and A. J. Carubbi, Jr., for respondent in No. 1311, Misc. Mr. Martin, Miss White, and Robert C. Flowers, Douglas H. Chilton, and Mr. Zwiener, Assistant Attorneys General, for respondent in No. 1823, Misc. </s> PER CURIAM. </s> The motions for leave to proceed in forma pauperis and the petitions for writs of certiorari are granted. The [392 U.S. 649, 650] judgments of the courts below are vacated and the cases remanded for reconsideration in the light of Witherspoon v. Illinois, 391 U.S. 510 . </s> MR. JUSTICE BLACK and MR. JUSTICE HARLAN dissent for reasons stated in MR. JUSTICE BLACK's dissenting opinion in Witherspoon v. Illinois, 391 U.S. 510, 532 . </s> MR. JUSTICE WHITE dissents for the reasons stated in his dissenting opinion in Witherspoon v. Illinois, 391 U.S. 510, 540 .

United States Supreme Court FISHER v. BERKELEY(1986) No. 84-1538 Argued: November 12, 1985Decided: February 26, 1986 </s> A Berkeley, California, ordinance, enacted pursuant to popular initiative, imposes rent ceilings on residential real property in the city. The rent ceilings are under the control of a Rent Stabilization Board. Appellant landlords brought suit in California Superior Court challenging the constitutionality of the ordinance on Fourteenth Amendment grounds and seeking declaratory and injunctive relief. The Superior Court upheld the ordinance but was reversed by the California Court of Appeal. In the meantime, based on the intervening decision in Community Communications Co. v. Boulder, 455 U.S. 40 , the question arose as to whether the ordinance was unconstitutional because it was pre-empted by the Sherman Act. The California Supreme Court held that there was no conflict between the ordinance and the Sherman Act. </s> Held: </s> The ordinance is not unconstitutional as being pre-empted by the Sherman Act. Pp. 264-270. </s> (a) The rent ceilings established by the ordinance and maintained by the Rent Stabilization Board were unilaterally imposed by the city upon landlords to the exclusion of private control. Thus, the rent ceilings lack the element of concerted action needed before they can be characterized as a per se violation of 1 of the Sherman Act. A restraint imposed unilaterally by government does not become concerted action within the meaning of 1 simply because it has a coercive effect upon parties who must obey the law. And the mere fact that all competing landlords must comply with the ordinance is not enough to establish a conspiracy among landlords. Pp. 265-267. </s> (b) While the ordinance gives tenants some power to trigger its enforcement, it places complete control over maximum rent levels exclusively in the Rent Stabilization Board's hands. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 , and California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 , distinguished. Pp. 267-270. </s> 37 Cal. 3d 644, 693 P.2d 261, affirmed. </s> MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, [475 U.S. 260, 261] JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 270. BRENNAN, J., filed a dissenting opinion, post, p. 274. </s> Jon D. Smock argued the cause for appellants. On the briefs were James R. Parrinello, John E. Mueller, and Peter J. Donnici. </s> Laurence H. Tribe argued the cause for appellees. With him on the brief were Kathleen M. Sullivan, Myron Moskovitz, and Manuela Albuquerque. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the California Housing Council, Inc., by Carla A. Hills and William C. Kelly, Jr.; for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon; for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and Robert K. Best; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar. </s> Briefs of amici curiae urging affirmance were filed for the State of New Jersey Department of the Public Advocate by Richard E. Shapiro; and for the United States Conference of Mayors et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Stephen Chapple, and Cynthia M. Pols. </s> Briefs of amici curiae were filed for the City and County of San Francisco by George P. Agnost and Burk E. Delventhal; for the City of Santa Monica et al. by Robert M. Myers, Stephen S. Stark, Karl M. Manheim, Raymond E. Ott, and K. D. Lyders; for the Berkeley Property Owners' Association by Thomas A. Seaton; for the California Apartment Association by Jon D. Smock, Wilbur H. Haines III, and Jeffrey J. Gale; for the Coalition for Competition in Apartment Rentals by E. Barrett Prettyman, Jr., and Elwood S. Kendrick; and for the National Apartment Association et al. by Jon D. Smock. </s> JUSTICE MARSHALL delivered the opinion of the Court. </s> The question presented here is whether a rent control ordinance enacted by a municipality pursuant to popular initiative is unconstitutional because pre-empted by the Sherman Act. </s> I </s> In June 1980, the electorate of the city of Berkeley, California, enacted an initiative entitled "Ordinance 5261-N. S., Rent Stabilization and Eviction for Good Cause Ordinance" [475 U.S. 260, 262] (hereafter Ordinance). Section 3 of the Ordinance stated the measure's purposes: 1 </s> "The purposes of this Ordinance are to regulate residential rent increases in the City of Berkeley and to protect tenants from unwarranted rent increases and arbitrary, discriminatory, or retaliatory evictions, in order to help maintain the diversity of the Berkeley community and to ensure compliance with legal obligations relating to the rental of housing. This legislation is designed to address the City of Berkeley's housing crisis, preserve the public peace, health and safety, and advance the housing policies of the City with regard to low and fixed income persons, minorities, students, handicapped, and the aged." App. to Juris. Statement A-111. </s> To accomplish these goals, the Ordinance places strict rent controls on all real property that "is being rented or is available for rent for residential use in whole or in part," 5, id., at A-113. Excepted are government-owned units, transient units, cooperatives, hospitals, certain small owner-occupied buildings, and all newly constructed buildings. For the remaining units, numbering approximately 23,000, 37 Cal. 3d 644, 678, 693 P.2d 261, 288 (1984), the Ordinance establishes a base rent ceiling reflecting the rents in effect at the end of May 1980. A landlord may raise his rents from these levels only pursuant to an annual general adjustment of rent ceilings by a Rent Stabilization Board of appointed commissioners or after he is successful in petitioning the Board for an individual adjustment. A landlord who fails to register with the Board units covered by the Ordinance or who fails to adhere [475 U.S. 260, 263] to the maximum allowable rent set under the Ordinance may be fined by the Board, sued by his tenants, or have rent legally withheld from him. If his violations are willful, he may face criminal penalties. </s> Shortly after the passage of the initiative, appellants, a group of landlords owning rental property in Berkeley, brought this suit in California Superior Court, claiming, inter alia, that the Ordinance violates their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and seeking declaratory and injunctive relief. The Superior Court upheld the Ordinance on its face, but was reversed by the Court of Appeal. While that appeal was pending, however, this Court's decision in Community Communications Co. v. Boulder, 455 U.S. 40 (1982), led certain amici to raise the question whether the Ordinance was unconstitutional because pre-empted by the federal antitrust laws. When the California Supreme Court heard the appeal from the Court of Appeal's decision, it therefore chose to consider plaintiffs' pre-emption claim along with their Fourteenth Amendment challenge. </s> Although fully briefed on the question whether the Berkeley Ordinance constitutes state action exempt from antitrust scrutiny under the standard established in Boulder, supra, the California Supreme Court noted that consideration of this issue would become necessary only were there to be "`truly a conflict between the Sherman Act and the challenged regulatory scheme,'" 37 Cal. 3d, at 660, 693 P.2d, at 275 (quoting First American Title Co. v. South Dakota Land Title Assn., 714 F.2d 1439, 1452 (CA8 1983), cert. denied, 464 U.S. 1042 (1984)). Such a conflict would exist, the Supreme Court concluded, only if the Ordinance on its face mandated conduct prohibited by either 1 or 2 of the Sherman Act. See Rice v. Norman Williams Co., 458 U.S. 654, 661 (1982). After reviewing the two "traditional standards" that have consistently been used to determine whether conduct violates 1 of the Sherman Act - the per se rules and the rule of reason, see [475 U.S. 260, 264] National Society of Professional Engineers v. United States, 435 U.S. 679, 692 (1978) - the court concluded that both standards, with their exclusive focus on competition and concern for the selfish motives of private actors, failed to give due deference to a municipality's legitimate interest in promoting public health, safety, and welfare. 37 Cal. 3d, at 667-673, 693 P.2d, at 280-285. The Supreme Court therefore found both standards inappropriate and proceeded to apply a standard of its own devising, based upon this Court's Commerce Clause cases. Applying this test, the court found no conflict between the Ordinance and either 1 or 2 of the Sherman Act. </s> We noted probable jurisdiction limited to the antitrust pre-emption question, 471 U.S. 1124 (1985), and now affirm, although on grounds different from those relied on by the California Supreme Court. While that court was correct in noting that consideration of state action is not necessary unless an actual conflict with the antitrust laws is established, we find traditional antitrust analysis adequate to resolve the issue presented here. </s> II </s> We begin by noting that appellants make no claim under either 4 or 16 of the Clayton Act, 15 U.S.C. 15 and 26, that the process by which the Rent Stabilization Ordinance was passed renders the Ordinance the product of an illegal "contract, combination . . ., or conspiracy." Appellants instead claim that, regardless of the manner of its enactment, the regulatory scheme established by the Ordinance, on its face, conflicts with the Sherman Act and therefore is pre-empted. </s> Recognizing that the function of government may often be to tamper with free markets, correcting their failures and aiding their victims, this Court noted in Rice v. Norman Williams Co., supra, that a "state statute is not pre-empted by the federal antitrust laws simply because the state scheme may have an anticompetitive effect," id., at 659. See Exxon [475 U.S. 260, 265] Corp. v. Governor of Maryland, 437 U.S. 117, 133 (1978). We have therefore held that a state statute should be struck down on pre-emption grounds "only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute." 458 U.S., at 661 . </s> While Rice involved a state statute rather than a municipal ordinance, the rule it established does not distinguish between the two. As in other pre-emption cases, the analysis is the same for the acts of both levels of government. See, e. g., White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983). Only where legislation is found to conflict "irreconcilably" with the antitrust laws, Rice, supra, at 659, does the level of government responsible for its enactment become important. Legislation that would otherwise be pre-empted under Rice may nonetheless survive if it is found to be state action immune from antitrust scrutiny under Parker v. Brown, 317 U.S. 341 (1943). The ultimate source of that immunity can be only the State, not its subdivisions. See Community Communications Co. v. Boulder, supra, at 50-51; Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412 -413 (1978) (opinion of BRENNAN, J.). </s> A </s> Appellants argue that Berkeley's Ordinance is pre-empted under Rice because it imposes rent ceilings across the entire rental market for residential units. Such a regime, they contend, clearly falls within the per se rule against price fixing, a rule that has been one of the settled points of antitrust enforcement since the earliest days of the Sherman Act, see Arizona v. Maricopa County Medical Society, 457 U.S. 332, 344 -348 (1982); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218 (1940). That the prices set here are ceilings rather than floors and that the public interest has been invoked to justify this stabilization should not, appellants [475 U.S. 260, 266] argue, save Berkeley's regulatory scheme from condemnation under the per se rule. </s> Certainly there is this much truth to appellants' argument: Had the owners of residential rental property in Berkeley voluntarily banded together to stabilize rents in the city, their activities would not be saved from antitrust attack by claims that they had set reasonable prices out of solicitude for the welfare of their tenants. See National Society of Professional Engineers v. United States, supra, at 695; United States v. Trans-Missouri Freight Assn., 166 U.S. 290 (1897). Moreover, it cannot be denied that Berkeley's Ordinance will affect the residential housing rental market in much the same way as would the philanthropic activities of this hypothetical trade association. What distinguishes the operation of Berkeley's Ordinance from the activities of a benevolent landlords' cartel is not that the Ordinance will necessarily have a different economic effect, but that the rent ceilings imposed by the Ordinance and maintained by the Rent Stabilization Board have been unilaterally imposed by government upon landlords to the exclusion of private control. </s> The distinction between unilateral and concerted action is critical here. Adhering to the language of 1, this Court has always limited the reach of that provision to "unreasonable restraints of trade effected by a `contract, combination . . ., or conspiracy' between separate entities." Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 (1984) (emphasis in original). We have therefore deemed it "of considerable importance" that independent activity by a single entity be distinguished from a concerted effort by more than one entity to fix prices or otherwise restrain trade, Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 763 (1984). Even where a single firm's restraints directly affect prices and have the same economic effect as concerted action might have, there can be no liability under 1 in the absence of agreement. Id., at 760-761; United States v. Parke, Davis [475 U.S. 260, 267] & Co., 362 U.S. 29, 44 (1960). Thus, if the Berkeley Ordinance stabilizes rents without this element of concerted action, the program it establishes cannot run afoul of 1. </s> Recognizing this concerted-action requirement, appellants argue that the Ordinance "forms a combination between [the city of Berkeley and its officials], on the one hand, and the property owners on the other. It also creates a horizontal combination among the landlords." Reply Brief for Appellants 10, n. 7. In so arguing, appellants misconstrue the concerted-action requirement of 1. A restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law. The ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy. Similarly, the mere fact that all competing property owners must comply with the same provisions of the Ordinance is not enough to establish a conspiracy among landlords. Under Berkeley's Ordinance, control over the maximum rent levels of every affected residential unit has been unilaterally removed from the owners of those properties and given to the Rent Stabilization Board. While the Board may choose to respond to an individual landlord's petition for a special adjustment of a particular rent ceiling, it may decide not to. There is no meeting of the minds here. See American Tobacco Co. v. United States, 328 U.S. 781, 810 (1946), quoted in Monsanto, supra, at 764. The owners of residential property in Berkeley have no more freedom to resist the city's rent controls than they do to violate any other local ordinance enforced by substantial sanctions. </s> B </s> Not all restraints imposed upon private actors by government units necessarily constitute unilateral action outside the purview of 1. Certain restraints may be characterized as [475 U.S. 260, 268] "hybrid," in that nonmarket mechanisms merely enforce private marketing decisions. See Rice v. Norman Williams Co., 458 U.S., at 665 (STEVENS, J., concurring in judgment). Where private actors are thus granted "a degree of private regulatory power," id., at 666, n. 1, the regulatory scheme may be attacked under 1. Indeed, this Court has twice found such hybrid restraints to violate the Sherman Act. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980). </s> In Schwegmann, a Louisiana statute authorized a distributor to enforce agreements fixing minimum retail prices not only against parties to such contracts, but also against retailers who sold the distributor's products without having agreed to the price restrictions. After finding that the statute went far beyond the now-repealed Miller-Tydings Act, which offered a limited antitrust exemption to certain "`contracts or agreements prescribing minimum prices for the resale'" of specified commodities, the Court held that two liquor distributors had violated 1 when they attempted to hold a retailer to the price-fixing terms of a contract it had refused to sign. In so holding, the Court noted that "when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." 341 U.S. at 389. However, under the Louisiana statute, both the selection of minimum price levels and the exclusive power to enforce those levels were left to the discretion of distributors. While the petitioner-retailer in that case may have been legally required to adhere to the levels so selected, the involvement of his suppliers in setting those prices made it impossible to characterize the regulation as unilateral action by the State of Louisiana. </s> The trade restraint condemned in Midcal entailed a similar degree of free participation by private economic actors. That case presented an antitrust challenge to California's requirement that all wine producers, wholesalers, and rectifiers [475 U.S. 260, 269] file fair trade contracts or price schedules with the State. If a wine producer did not set prices, wholesalers had to post a resale price schedule for that producer's brands. No state-licensed wine merchant could sell wine to a retailer at other than those prices. 445 U.S., at 99 . The Court found: "California's system for wine pricing plainly constitutes resale price maintenance in violation of the Sherman Act . . . . The wine producer holds the power to prevent price competition by dictating the prices charged by wholesalers." Id., at 103. Here again, the mere existence of legal compulsion did not turn California's scheme into unilateral action by the State. The Court noted: "The State has no direct control over wine prices, and it does not review the reasonableness of the prices set by wine dealers." Id., at 100. </s> The hybrid restraints condemned in Schwegmann and Midcal were thus quite different from the pure regulatory scheme imposed by Berkeley's Ordinance. While the Ordinance does give tenants - certainly a group of interested private parties - some power to trigger the enforcement of its provisions, it places complete control over maximum rent levels exclusively in the hands of the Rent Stabilization Board. Not just the controls themselves but also the rent ceilings they mandate have been unilaterally imposed on the landlords by the city. </s> C </s> There may be cases in which what appears to be a state- or municipality-administered price stabilization scheme is really a private price-fixing conspiracy, concealed under a "gauzy cloak of state involvement," Midcal, supra, at 106. This might occur even where prices are ostensibly under the absolute control of government officials. However, we have been given no indication that such corruption has tainted the rent controls imposed by Berkeley's Ordinance. Adopted by popular initiative, the Ordinance can hardly be viewed as a cloak for any conspiracy among landlords or between the landlords and the municipality. Berkeley's landlords have [475 U.S. 260, 270] simply been deprived of the power freely to raise their rents. That is why they are here. And that is why their role in the stabilization program does not alter the restraint's unilateral nature. 2 </s> III </s> Because under settled principles of antitrust law, the rent controls established by Berkeley's Ordinance lack the element of concerted action needed before they can be characterized as a per se violation of 1 of the Sherman Act, we cannot say that the Ordinance is facially inconsistent with the federal antitrust laws. See Rice v. Norman Williams Co., supra, at 661. We therefore need not address whether, even if the controls were to mandate 1 violations, they would be exempt under the state-action doctrine from antitrust scrutiny. See Hallie v. Eau Claire, 471 U.S. 34 (1985). </s> The judgment of the California Supreme Court is </s> Affirmed. </s> Footnotes [Footnote 1 In 1982, while this case was pending in the California Court of Appeal, the Berkeley electorate enacted the "Tenants' Rights Amendments Act of 1982," revising certain sections of the 1980 Ordinance. Like the California Supreme Court, we review the Ordinance as amended, see 37 Cal. 3d 644, 654, n. 2, 693 P.2d 261, 270, n. 2 (1984); all reference herein will therefore be to the 1982 version of the Ordinance. </s> [Footnote 2 Though they have not pressed the point with any vigor in this Court, appellants have suggested that Berkeley's rent controls constitute attempted monopolization because the city "is clearly engaged in the provision of housing in the public sector" and using the controls to depress the prices of residential properties as a prelude to taking them over. Tr. of Oral Arg. 14-15. As to this claim, we note only that the inquiry demanded by appellants' allegations goes beyond the scope of the facial challenge presented here. See Rice v. Norman Williams Co., 458 U.S., at 661 . </s> JUSTICE POWELL, concurring in the judgment. </s> The Court today reaches out to decide a difficult pre-emption question when a straightforward and well-settled ground for decision is available. In my view, Berkeley's Ordinance plainly falls within the "state action" exemption of Parker v. Brown, 317 U.S. 341 (1943), and its progeny. I therefore concur in the judgment, but on grounds different from those discussed in the Court's opinion. [475 U.S. 260, 271] </s> When a municipal government engages in anticompetitive activity pursuant to a clearly articulated state policy to displace competition with regulation, the "state action" exemption removes the conduct from the coverage of the antitrust laws. Hallie v. Eau Claire, 471 U.S. 34, 38 -39 (1985); Community Communications Co. v. Boulder, 455 U.S. 40, 54 (1982). In Hallie, we found such a policy embodied in a state statute that "delegated to [municipalities] the express authority to take action that foreseeably will result in anticompetitive effects." 471 U.S., at 43 . See also Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 415 (1978) (opinion of BRENNAN, J.) ("[A]n adequate state mandate for anticompetitive activities . . . exists when it is found `from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of'") (citation omitted). Thus, the question in this case is whether California has expressly delegated to Berkeley regulatory power that foreseeably would lead to the anticompetitive effects challenged by appellants. </s> The history of Berkeley's ordinance is illuminating. Prior to 1974, Article XI, 3, of the California Constitution 1 required the state legislature to approve all changes in municipal charters. In 1972, in a citywide initiative, Berkeley's citizens approved a charter amendment authorizing rent [475 U.S. 260, 272] control. This charter amendment effectively froze rents at 1971 levels, subject to individual adjustments by a popularly elected rent control board. Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 138, 550 P.2d 1001, 1008 (1976). The California Legislature ratified the charter amendment on August 2, 1972, and the rent control plan went into effect. 1972 Cal. Stat. 3370. A group of landlords challenged the rent control plan on a number of constitutional and statutory grounds. In the ensuing litigation, the California Supreme Court invalidated the plan on the ground that it lacked procedural safeguards necessary to protect landlords from confiscatory rent ceilings. 2 Birkenfeld, supra, at 170-172, 550 P.2d, at 1030-1032. In 1980, in another initiative, Berkeley's citizens adopted the ordinance at issue in this case. This Ordinance provided the procedural protections that the 1972 charter provision lacked, and it subsequently survived constitutional challenge in state court. 37 Cal. 3d 644, 679-691, 693 P.2d 261, 289-298 (1984). </s> The challenged Ordinance thus replaces a rent control plan that was expressly authorized by the state legislature. Under Hallie, a general grant of authority to regulate rents would have sufficed to exempt Berkeley's Ordinance from the antitrust laws. 471 U.S., at 42 . It follows that the legislature's ratification of a particular rent control plan must also trigger the state-action exemption. See ibid.; Boulder, supra, at 55-56. The remaining issue is whether the authority granted in 1972 remains intact. </s> Appellants contend that it does not. First, appellants argue that the California Supreme Court's decision in Birkenfeld, [475 U.S. 260, 273] invalidating the 1972 charter provision, effectively canceled the legislature's ratification of that provision. Birkenfeld did not, however, decide that rent control was bad policy, or that it was inconsistent with state law. See Birkenfeld, supra, at 159-164, 550 P.2d, at 1023-1026 (finding that enacting a rent control plan was a permissible exercise of the city's police power); Note, 65 Calif. L. Rev. 304, 305 (1977) ("Birkenfeld offers California cities . . . the judicial equivalent of a rent control enabling act"). Rather, the decision stands only for the proposition that cities must couple rent control with procedures for adjusting rent ceilings to avoid fixing rents at confiscatory levels. 17 Cal. 3d, at 167-173, 550 P.2d, at 1028-1033. Birkenfeld thus left Berkeley's basic power to impose rent controls unaffected. </s> Second, appellants contend that since 1972 the state legislature has declared its neutrality respecting a city's decision to control rents. See Boulder, supra, at 55 (clear articulation requirement is not satisfied "when the State's position is one of mere neutrality respecting the municipal actions challenged as anticompetitive"). This argument rests on the passage in 1980 of a comprehensive planning and zoning law, one provision of which states: </s> "Nothing in this article shall be construed to be a grant of authority or a repeal of any authority which may exist of a local government to impose rent controls or restrictions on the sale of real property." Cal. Govt. Code Ann. 65589(b) (West 1983) (emphasis added). </s> By its express terms this statute leaves intact cities' pre-existing authority to adopt rent control provisions. For purposes of the clear articulation requirement, Berkeley's pre-existing authority is defined by the legislature's ratification of the city's 1972 charter amendment. </s> For these reasons, I would find that Berkeley's Ordinance is exempt from the antitrust laws under our decisions in Hallie and Boulder. By ratifying Berkeley's charter amendment, the state legislature expressly authorized Berkeley to [475 U.S. 260, 274] control rents. The State has not since rescinded that authorization. That is all we need decide in this case. </s> I therefore concur in the judgment, and express no view on the merits of the pre-emption issue decided by the Court. </s> [Footnote 1 When Berkeley's charter amendment was passed in 1972, Article XI, 3(a), of the California Constitution read: </s> "For its own government, a county or city may adopt a charter by majority vote of its electors voting on the question. The charter is effective when filed with the Secretary of State. A charter may be amended, revised, or repealed in the same manner. A charter, amendment, revision, or repeal thereof shall be published in the official state statutes. . . . The provisions of a charter are the law of the State and have the force and effect of legislative enactments." </s> This provision was construed to require that charter amendments be approved by concurrent resolution of both houses of the state legislature. Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 137, n. 2, 550 P.2d 1001, 1007, n. 2 (1976). </s> [Footnote 2 The 1972 charter provision permitted individual adjustments of the across-the-board rent ceiling only on a unit-by-unit basis, and only after a hearing on the particular unit whose rent was to be raised. The California Supreme Court found that this limitation "put the [rent control board] in a procedural strait jacket," and "unnecessarily preclude[d] reasonably prompt action" on meritorious petitions by landlords. Birkenfeld, supra, at 171, 172, 550 P.2d, at 1031, 1032. </s> JUSTICE BRENNAN, dissenting. </s> Since Parker v. Brown, 317 U.S. 341 (1943), the Court has wrestled with the question of the degree to which federal antitrust laws prohibit state and local governments from imposing anticompetitive restraints on trade. Laws which impose such restraints have been held to be exempt from antitrust scrutiny if they constitute action of the State itself in its sovereign capacity, or state-authorized municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy. See Community Communications Co. v. Boulder, 455 U.S. 40, 52 (1982). Today, the Court holds that a municipality's price-fixing scheme is not pre-empted by the federal antitrust laws whether or not the scheme is state-authorized, or furthers or implements a clearly articulated and affirmatively expressed state policy. Because today's decision discards over 40 years of carefully considered precedent, I respectfully dissent. </s> I </s> A </s> Berkeley's Rent Stabilization Ordinance (hereafter Ordinance) effectively fixes prices for rental units in the city of Berkeley. In Rice v. Norman Williams Co., 458 U.S. 654, 661 (1982), we held that a state statute </s> "may be condemned under the antitrust laws only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute. Such condemnation will follow under 1 of the Sherman Act when the conduct contemplated by the statute is in all cases a per se violation." [475 U.S. 260, 275] </s> In this case, by declaring maximum prices landlords may charge, Berkeley's Ordinance irresistibly pressures landlords to fix prices for their rental units. Thus, the Ordinance "facially conflict[s] with the Sherman Act because it mandate[s] [price fixing], an activity that has long been regarded as a per se violation of the Sherman Act." Id., at 659-660 (emphasis in original). </s> The Court recognizes that the Ordinance imposes anticompetitive restraints on trade, and that it has the same effect on the housing market as would a conspiracy by landlords to fix rental prices. Ante, at 266. Despite this, the Court holds that the Ordinance is not pre-empted by the Sherman Act because prices are fixed "unilaterally" by the city, rather than by "contract, combination, or conspiracy." I do not read our decisions necessarily to require proof of such concerted action as a prerequisite to a finding of pre-emption. Certainly, nothing we said in Rice supports such a narrow view of pre-emption. 1 Our other decisions have found statutes in conflict with the Sherman Act because they eliminated price competition in the relevant market. </s> In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980), a wine wholesaler sought to enjoin enforcement of a California statute which effectively [475 U.S. 260, 276] required it to sell wines at prices set by producers. The Court focused on the fact that the statute eliminated price competition, and held that the wine-pricing system constituted resale price maintenance in violation of the Sherman Act. The Midcal decision squarely controls the result here. Just as the statute challenged in Midcal compelled wine wholesalers to charge prices set by wine producers, Berkeley's Ordinance compels landlords to charge prices set by the city. The city "holds the power to prevent price competition by dictating the prices charged" by landlords. Id., at 103. "[S]uch vertical control destroys horizontal competition as effectively as if [landlords] `formed a combination and endeavored to establish the same restrictions . . . by agreement with each other.'" Ibid. (quoting Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 408 (1911)). </s> Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951), is also directly on point. In Schwegmann, a Louisiana statute authorized liquor distributors to enforce agreements fixing minimum retail prices on their products against retailers who had not agreed to the price restrictions. The Court held that the statutory scheme amounted to resale price maintenance, in violation of the Sherman Act. To paraphrase the Court in Schwegmann, "when [the city] compels [landlords] to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." Id., at 389. "[W]hen [landlords] are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids `horizontal' price fixing." Ibid. (emphasis in original). </s> B </s> Even if I accepted the Court's analysis of the antitrust pre-emption issue, I would find a functional "combination" in this case between the city of Berkeley and its officials, on the one hand, and the landlords on the other - a combination that operates to fix prices for rental units in Berkeley. To reach a contrary result, the Court simply states a conclusion - that [475 U.S. 260, 277] "[a] restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law." Ante, at 267. The Court doesn't explain why this is so - it simply baldly asserts that "[t]he ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy." Ibid. The best I can make of this is that the Court apparently would interpret the Sherman Act to forbid only privately arranged price-fixing schemes. See ante, at 267-269. That interpretation would be plainly misguided. </s> Section 1 of the Sherman Act declares illegal restraints of trade resulting from any "contract, combination . . ., or conspiracy." 15 U.S.C. 1. Understandably, that wording has led the Court to draw a "basic distinction" between concerted and independent action, and to hold that "[i]ndependent action is not proscribed" by 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761 (1984). However, until today we have not held, or indeed even suggested, that government-imposed restraints on economic actions cannot constitute concerted action. Rather, both Schwegmann and Midcal held that state statutes which "had a coercive effect upon parties who must obey the law" violated 1. 2 </s> [475 U.S. 260, 278] </s> If the Ordinance allowed the individual landlords ultimately to set their own rental prices, I might understand the Court's conclusion that any resulting price restraints did not necessarily result from collective action. Cf. Monsanto Co. v. Spray-Rite Service Corp., supra, at 761. However, because the Ordinance has the force of law, the city can compel landlords to do what the Sherman Act plainly forbids - to fix prices for rental units in Berkeley. Regardless of whether the landlords "agree" to the prices charged, the circumstances here clearly "exclude the possibility that the [city and the landlords] were acting independently." 465 U.S., at 764 . The Ordinance eliminates price competition more effectively than any private "agreement" ever could, and is therefore pre-empted by the Sherman Act. The Court's contrary conclusion does not further, as it argues, but rather distorts "traditional antitrust analysis." Ante, at 264. </s> II </s> Ultimately, the Court is holding that a municipality's authority to protect the public welfare should not be constrained by the Sherman Act. That holding excludes a broad range of local government anticompetitive activities from the reach of the antitrust laws. This flies in the face of the fact that Congress has not enacted such a broad antitrust exemption for municipalities. See Community Communications Co. v. Boulder, 455 U.S. 40 (1982); Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978); cf. 15 U.S.C. 35(a) (1982 ed., Supp. II) (immunizing local governments [475 U.S. 260, 279] only from liability for damages for violations of the antitrust laws). "In light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation's economic goals reflected in the antitrust laws, . . . we [have been] especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach." Lafayette, supra, at 412-413 (plurality opinion). "The Parker state-action exemption reflects Congress' intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under our Constitution. But this principle contains its own limitation: Ours is a `dual system of government,' Parker, 317 U.S., at 351 (emphasis added), which has no place for sovereign cities." Community Communications Co. v. Boulder, supra, at 53. Of course, our decisions do not foreclose municipalities from enacting anticompetitive measures in the public interest, but only require that such actions be state-authorized and be implemented pursuant to a clearly articulated and affirmatively expressed state policy to displace competition with regulation or monopoly service. See 455 U.S., at 52 . Berkeley's Ordinance plainly is not exempt from antitrust scrutiny under this standard. </s> Appellees suggest that three considerations support their argument that the Ordinance implements a clearly articulated and affirmatively expressed state policy authorizing municipalities to enact rent control measures: (1) the state legislature's 1972 ratification of a city rent control charter amendment; (2) the California Supreme Court's decision in Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 550 P.2d 1001 (1976), which ultimately invalidated that amendment; and (3) the city's state-law obligation to provide affordable housing. None of these considerations support appellees' position. </s> First, in 1972, Berkeley adopted a rent control charter amendment, which was approved by concurrent resolution of [475 U.S. 260, 280] both houses of the state legislature. 3 There are serious doubts that this purely pro forma approval would qualify the amendment for the Parker exemption. See Cantor v. Detroit Edison Co., 428 U.S. 579 (1976). In any event, that amendment was subsequently invalidated by the California Supreme Court, and the legislature's actions respecting its passage afford no support for the claimed exemption of the current Ordinance from antitrust scrutiny. </s> Second, the Birkenfeld decision, while invalidating Berkeley's rent control amendment, found state authority for such measures in constitutional provisions conferring upon cities the power to "make and enforce . . . all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." 17 Cal. 3d, at 140, 550 P.2d, at 1009-1010. But we have made clear that such general grants of authority do not constitute the required mandate to engage in conduct that necessarily constitutes a violation of the antitrust laws. See Community Communications Co., 455 U.S., at 55 . "Acceptance of such a proposition . . . would wholly eviscerate the concepts of `clear articulation and affirmative expression' that our precedents require." Id., at 56. </s> Third, state law requires cities to "make adequate provision for the housing needs of all economic segments of the community." Cal. Govt. Code Ann. 65580(d) (West 1983). But, although appellees argue that rent control measures are a "foreseeable result" of these statutory obligations, see Hallie v. Eau Claire, 471 U.S. 34 (1985), those laws are expressly neutral with respect to a city's authority to impose rent controls. California Govt. Code Ann. 65589(b) (West 1983) expressly provides that "nothing in this article shall be construed to be a grant of authority or a repeal of any authority which may exist of a local government to impose rent controls." [475 U.S. 260, 281] See also Cal. Health & Safety Code Ann. 50202 (West Supp. 1986) ("[N]othing in this division shall authorize the imposition of rent regulations or controls"). The requirement of "`clear articulation and affirmative expression' is not satisfied when the State's position is one of mere neutrality respecting the municipal actions challenged as anticompetitive." Community Communications Co., supra, at 55 (emphasis in original). Plainly, by that standard the Ordinance does not qualify for the Parker exemption from antitrust liability. </s> III </s> Finally, appellees suggest that a finding of pre-emption in this case will severely restrict a municipality's authority to enact a variety of measures in the public interest. "But this argument is simply an attack upon the wisdom of the longstanding congressional commitment to the policy of free markets and open competition embodied in the antitrust laws." Community Communications Co., supra, at 56. Congress may ultimately agree with appellees' argument, and may choose to amend the antitrust laws to grant municipalities broad discretion to enact anticompetitive measures in the public interest. Pending such amendment, however, only a clearly articulated and affirmatively expressed state policy will exempt ordinances like this from the reach of the Sherman Act. </s> [Footnote 1 Rice held that a "state statute is not pre-empted by the federal antitrust laws simply because the state scheme might have an anticompetitive effect." 458 U.S., at 659 . Rice involved a challenge to a California statute which effectively allowed liquor distillers to control distribution of their products in the State. The Court concluded that because such vertical nonprice restraints are not per se illegal under the Sherman Act, see Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), the statute was not pre-empted. 458 U.S., at 661 ; see also Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35 (1966). In contrast, Berkeley's Rent Stabilization Board fixes prices for rental units in the city. Unlike nonprice restraints, price fixing has traditionally been held to be per se illegal under the Sherman Act. See Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). </s> [Footnote 2 The Court would distinguish Schwegmann and Midcal based on the role of private parties in setting prices. Ante, at 268-269. The Court characterizes the statutory restraints imposed in those cases as "hybrid, in that nonmarket mechanisms merely enforce private marketing decisions." Ante, at 267. In this case, the Court argues, Berkeley's landlords have no control over the prices they charge. Ibid. </s> True, in both cases private parties, rather than the State, were largely responsible for setting the prices that retailers had to adhere to. However, the lack of state supervision over price-fixing activities was only relevant to whether the challenged statutes were immune from antitrust liability under Parker v. Brown, 317 U.S. 341 (1943), see Midcal, 445 U.S., at 105 ; neither decision drew the distinction the Court today creates between "unilateral" and "hybrid" governmental restraints. In both cases the challenged [475 U.S. 260, 278] statute was found invalid simply because it compelled private parties to charge fixed prices for their products, conduct which the Sherman Act forbids. See Schwegmann, 341 U.S., at 389 ; Midcal, supra, at 103. The Court's "distinction" ignores the fact that price fixing has the same deleterious effect upon the competitive market whether prices are set by an administrative body or by private parties. Thus, regardless of whether Berkeley's landlords have some role in setting the prices they must charge, the coercive effect of the city's Ordinance results in concerted action violative of the Sherman Act. </s> [Footnote 3 At that time, the State Constitution required the legislature to approve city charter amendments. See Birkenfeld v. City of Berkeley, 17 Cal. 3d, 129, 137, n. 2, 550 P.2d, 1001, 1007, n. 2 (1976). In 1974, the State Constitution was amended to eliminate this requirement. </s> [475 U.S. 260, 282]

United States Supreme Court UNITED STATES v. SOUTHERN UTE INDIANS(1971) No. 515 Argued: March 1, 1971Decided: April 26, 1971 </s> Respondent's claims for compensation and accounting are barred by res judicata since they relate to land "formerly owned or claimed by [the Confederated Bands of Utes] in western Colorado, ceded to [the United States] by the Act of June 15, 1880" and thus were subject to a final settlement reduced to a consent judgment, to which respondent was a party, made in 1950. Pp. 161-174. </s> 191 Ct. Cl. 1, 423 F.2d 346, reversed. </s> BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACK, HARLAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 174. </s> Lawrence G. Wallace argued the cause for the United States. On the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, Peter L. Strauss, and Edmund B. Clark. </s> Glen A. Wilkinson argued the cause for respondent. With him on the brief was Richard A. Baenen. </s> MR. JUSTICE BRENNAN delivered the opinion of the Court. </s> In 1951 the Southern Ute Tribe or Band of Indians, a part of the Confederated Bands of Utes, brought this claim before the Indian Claims Commission. 1 The claim asserted that the United States had violated its fiduciary duty to respondent by (1) disposing of 220,000 acres of land as "free homesteads" although obligated by 21 Stat. [402 U.S. 159, 160] 203-204 (1880) and 28 Stat. 678 (1895) to sell the acreage for the respondent's benefit; and (2) by failing to account for the proceeds of 82,000 acres of land, which proceeds were, under the same Acts, to be held for the respondent's benefit. The Government's basic defense was res judicata by reason of Court of Claims consent judgments entered in 1950 between the United States and the Confederated Bands of Utes, including the respondent. 2 Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. 433 (1950). The Indian Claims Commission rejected the defense, 17 Ind. Cl. Comm. 28 (1966); but the Court of Claims, in an unpublished order, App. 57-58, remanded for the taking of additional evidence. On remand the Commission again rejected the defense, 21 Ind. Cl. Comm. 268 (1969), and the Court of Claims affirmed, two judges dissenting. 191 Ct. Cl. 1, 423 F.2d 346 (1970). We granted certiorari. 400 U.S. 915 (1970). We reverse. </s> The consent judgment entered in the Court of Claims gave effect to a settlement agreement which recited a stipulation of the parties that: </s> "[A] judgment . . . shall be entered in this cause as full settlement and payment for the complete extinguishment of plaintiffs' right, title, interest, estate, claims and demands of whatsoever nature in and to the land and property in western Colorado ceded by plaintiffs to defendant by the Act of June 15, 1880 (21 Stat. 199), which (a) the United States sold [402 U.S. 159, 161] for cash . . . (b) disposed of as free homesteads . . . and (c) set aside for public purposes [between 1910 and 1938]. . . . There is filed herewith and made a part of this stipulation Schedule 1, which contains the legal descriptions of [lands] . . . disposed of by defendant as free homesteads and the remaining . . . acres . . . set aside by the defendant for public purposes. . . . However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but . . . also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 . . . ." 117 Ct. Cl., at 436-437 (emphasis added). </s> The lands involved in the present suit were not included in Schedule 1; rather, the Government relies upon the clause that the consent judgment was "res judicata . . . also as to any land . . . ceded to defendant by the Act of June 15, 1880 . . . ." </s> Both the Indian Claims Commission and the Court of Claims rejected the Government's res judicata defense on the ground that the claim concerning the lands involved in this action was not compromised by the 1950 settlement because those lands were not among the lands "ceded to defendant by the Act of June 15, 1880." </s> Decision of this case turns, then, upon the proper interpretation of the agreement, embodied in the Act of 1880, between the United States and the Ute Indians as it relates to the settlement agreement, reduced to judgment in 1950, between the same parties. The determination of that interpretation requires a somewhat lengthy factual recitation. </s> In the latter half of the 19th century, what is now the Confederated Bands of Utes, composed of the Uncompahgre Utes, the White River Utes, and the Southern [402 U.S. 159, 162] Utes, exchanged their aboriginal lands in New Mexico, Utah, and Colorado for a reservation of approximately 15.7 million acres lying wholly within Colorado. 13 Stat. 673 (1864); 15 Stat. 619 (1868). Although the acreage was undivided, the White River Utes lived in the northern portion of the reservation, the Uncompahgre Utes inhabited the central part, and the Southern Utes occupied the southern region. The reservation, however, survived little longer than a decade in this form. In 1874 the Utes approved the Brunot Cession of 3.7 million acres of the east-central portion of the reservation after valuable mineral deposits had been discovered there. 18 Stat. 36 (1874). 3 The result of the cession was almost to sever the reservation, leaving the Southern Utes wedged between the southern boundary line of the Brunot Cession and the New Mexico border, at the southernmost part of the reservation on a strip of land 15 miles wide and 110 miles long. This strip, which includes the lands at issue here, is referred to by the parties as Royce Area 617, and the remainder of the reservation after the Brunot Cession is referred to as Royce Area 616. 4 </s> Within eight years, only the Southern Utes remained in Colorado: the White River Utes and the Uncompahgre Utes departed for Utah before 1882 as a consequence of the massacre in 1879 of Indian Agent Meeker and others at White River station. The public outcry over this incident led to negotiations with the Confederated Bands which produced the Act of 1880. [402 U.S. 159, 163] </s> The central feature of the Act of 1880 was the termination of tribal ownership in the reservation lands, and the limitation of Indian ownership to such lands as might be allotted in severalty to individual Indians. The purposes of that provision were to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pastoral to an agricultural people. See 10 Cong. Rec. 2059, 2066 (1880). The Act recited that it was enacted to accept "the agreement submitted by the confederated bands of Ute Indians in Colorado, for the sale of their reservation in said State . . . ." 21 Stat. 199 (1880). Thus, it was provided that the Confederated Bands "cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement." 21 Stat. 200 (1880). The settlement provisions stipulated that the White River Utes would leave Colorado "and settle upon agricultural lands on the Uintah Reservation in Utah," ibid., and that "[t]he Uncompahgre Utes agree to remove to and settle upon agricultural lands on Grand River, near the mouth of the Gunnison River, in Colorado," ibid., or if insufficient agricultural land was found there, go to Utah (which they soon did). The Southern Utes were to "remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico." Ibid. Finally, it was provided that "all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United [402 U.S. 159, 164] States and subject to disposal," but only for the financial benefit of the Utes. 21 Stat. 203-204 (1880). </s> The plain wording of the Act cedes to the United States all of the nonallotted acreage of the reservation, including that in the 15-mile strip (Royce Area 617) occupied by the Southern Utes. The Court of Claims' opinion acknowledges this, stating that: </s> "The most significant aspects to be gleaned from this 1880. Act . . . is that the Confederated Bands (Southern Utes included) seemed to cede their entire Colorado reservation - Royce Area 616 and 617 - and moreover promised to accept allotments in severalty in various sectors within and beyond reservation boundaries. As sole consideration for these promises, the Bands were to receive shares in the proceeds of unallotted land sales remaining after certain Government reimbursements. The Southern Utes were apportioned a one-third share and like their confederates understood that such monies would be held by defendant in trust for their benefit." 191 Ct. Cl., at 10, 423 F.2d, at 350 (1970) (emphasis in original). </s> Thus, if inquiry were to end with the wording of the 1880 Act, the consent judgment barred respondent's claim. </s> The Commission and the Court of Claims did not, however, end their inquiry with the wording of the Act of 1880. Both of those tribunals considered the conduct of the United States in relation to respondent tribe in the years subsequent to passage of the Act of 1880. Even so, the basis of their rejection of the res judicata defense does not emerge from their opinions with complete clarity. The Court of Claims read the Commission's first opinion, 17 Ind. Cl. Comm. 28 (1966), as holding that the Southern Utes expressly withheld the southern strip from the lands ceded by the 1880 Act: "The Commission found that the Act of 1880 `reserved' Royce Area 617 for the Southern [402 U.S. 159, 165] Utes." 191 Ct. Cl., at 10, 423 F.2d, at 350. Some language at that point of the opinion suggested that the Court of Claims was in agreement with that view - "the following sequence of events . . . support the conclusion that plaintiffs at any rate did not cede their reservation (Royce Area 617) under the agreement of 1880." Ibid. However, the opinion later turns the decision on a different theory: </s> "The more tenable theory, in our estimation, is that Congress recognized that by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead. It may be that the obligation to deal justly and honorably with the Indian wards did not allow insistence on full implementation of the apparent terms of the 1880 agreement. On the other hand, the Southern Utes obviously did not see themselves as mere squatters. The Congress therefore decided that if the land was going to be acquired free and clear new consideration was necessary. Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government's rights created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880." Id., at 1920, 423 F.2d, at 356. </s> This reasoning implies that the holding that the lands in suit were not ceded in 1880 rests upon application of the doctrines of estoppel, or waiver, or a compound of those doctrines. We disagree that the history relied on supports any of those bases for decision, even assuming (and we have serious doubts) that the plain words of the Act of 1880 can thus be varied to except the lands in suit from the phrase "any land . . . ceded" in the consent [402 U.S. 159, 166] judgment. We turn, then, seriatim to the events relied upon below. </s> Even before 1880 the Southern Utes had experienced hardship in living on the southern strip. Essentially, they were a pastoral people and the strip was so narrow that it was difficult to keep their animals within it. In addition, the white population to the north and south of the strip was increasing and the resulting lines of commerce cut across the strip. </s> "The Indian Bureau, realizing that this strip, by reason of its narrowness and of its remoteness from the other portion of the reservation, was entirely unsuited to the use of the Indians, suggested that negotiations be entered into with them for the cession of that strip. In accordance with this, in 1878, Congress passed an act authorizing such negotiations (U.S. Stat. L., vol. 20, p. 48), and under this authority a commission . . . was appointed, and during the same year they negotiated an agreement with the Indians whereby they agreed to exchange this strip for another reservation." S. Rep. No. 279, 53d Cong., 2d Sess., 1 (1894). </s> But before the bill was acted upon by Congress, the Meeker Massacre occurred. 5 The outcry following that incident caused Congress to adopt the solution in the Act of 1880 affecting all of the Ute tribes. Contrary to the apparent view of the Commission and Court of Claims, this segment of history does not show an intention [402 U.S. 159, 167] to treat the Southern Utes differently from the other Utes; rather, it demonstrates a congressional decision to treat the Southern Utes as the White River and Uncompahgre Utes were being treated, save that the White River Utes were being completely banished from Colorado. </s> The Act of 1880 provided that "a commission shall be sent to superintend the removal and settlement of the Utes, and to see that they are well provided with agricultural and pastoral lands sufficient for their future support . . . ." 21 Stat. 201 (1880). The Commission visited the Southern Utes to carry out that mandate and in 1881 its chairman reported to Congress: </s> "During my stay on the reservation I took occasion . . . to talk to the leading men . . . on the subject of their location in severalty. In these conversations I called their attention to the fact that the work the surveyors were doing was the preliminary step to such location [in severalty] . . . . I did not find one who desired a house, or would agree to dwell in one if built for him on his own land. It will take time and careful management to induce these Indians to abandon their present [way of living] and adopt the new mode of life contemplated by the agreement. </s> "In the mean time, and while the change is going on, they must be protected from annoyance. . . . To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the 1880. agreement . . . as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation . . . . Then the land selected, and upon which the Indians are to be located, can be kept free [402 U.S. 159, 168] from intruders." H. R. Exec. Doc. No. 1, pt. 5, Vol. 2, 47th Cong., 1st Sess., 393 (1882). </s> But Congress did not create the recommended reservation. Instead, Congress took action consistent with adherence to the plan of the Act of 1880. There had been great pressure to open Royce Areas 616 and 617 to homesteading after the Act of 1880 had resulted in the removal of the Uncompahgre and White River Utes. The Southern Utes were, however, still occupying the southern strip, Royce Area 617. The apparent result was the Act of July 28, 1882, 22 Stat. 178, which declared that all of the northern portions of the reservation formerly occupied by the Uncompahgre and White River Utes, Royce Area 616, were now public lands to be disposed of for the benefit of the Utes in accordance with the Act of 1880. Section 2 of that statute provided that the Secretary of the Interior "shall, at the earliest practicable day, ascertain and establish the line between" the two Royce Areas. 22 Stat. 178 (1882). We find nothing in the legislative history of that statute to support a finding that it evidenced a congressional conclusion that the southern strip had not been ceded by the Act of 1880. On the contrary, the thrust of the legislative history is that the line was drawn to assure that there would be no interference with the land in Royce Area 617 available for allotment to the Southern Utes under the Act of 1880. H. R. Rep. No. 799, 53d Cong., 2d Sess., 2 (1894); S. Rep. No. 279, 53d Cong., 2d Sess., 2, 3-4 (1894). 6 </s> [402 U.S. 159, 169] </s> The Court of Claims also found support for its conclusion in what was said to a congressional committee by a Ute spokesman for the Southern Utes at a meeting in the District of Columbia in 1886. The spokesman stated that the delegation had come "to see if we cannot exchange our reservation for another. . . . The present reservation is narrow and long, and we want to go west and see if we can't sell it." S. Rep. No. 836, 49th Cong., 1st Sess., 1 (1886). The Court of Claims viewed this as demonstrating that "the Southern Utes were still in possession of their part of their old reservation under claim of right." 191 Ct. Cl., at 14, 423 F.2d, at 353. We do not doubt that the Southern Utes regarded the lands they occupied as "our reservation," but we fail to see how this nullifies the conveyance of the strip made by the Act of 1880. On the contrary, there is cogent evidence that the United States totally rejected the Indians' claim that the strip was "our reservation." After two bills to effectuate the removal of the Southern Utes failed to pass, Congress enacted 25 Stat. 133 (1888) empowering "[t]he Secretary of the Interior . . . to appoint a commission . . . with authority to negotiate with the band of Ute Indians of southern Colorado for such modification of their treaty and other rights, and such exchange of their reservation, as may be deemed desirable by said Indians and the Secretary of the Interior . . . ." Ibid. Despite the reference to "their reservation," the premise of this statute was obviously that amelioration of the plight of the Southern Utes would require "modification of their treaty and other rights" as they had been fixed in the Act of 1880. Even the Court of Claims thought the Act of 1888 little support for the respondents' contention: </s> "Although the language of this act tends to favor plaintiffs' position it is by no means conclusive. It [402 U.S. 159, 170] merely authorized the establishment of a commission to engage the Southern Utes in negotiations for the purpose of persuading them to do belatedly what the Uncompahgre and White River Utes had done some years earlier, namely, to vacate their reservation and move elsewhere. A reasonable explanation for the act's exclusive terms is that the Southern Utes were the only band of the confederation as to whom the 1880 agreement was still executory." 191 Ct. Cl., at 15, 423 F.2d, at 353-354. </s> The Commission formed pursuant to the Act of 1888 did succeed in negotiating an agreement with the Southern Utes, under which the Southern Utes would have been moved to a reservation in San Juan County, Utah. The Court of Claims observed that in such case "[p]resumably, their evacuated reservation lands would then be sold in accordance with the Act of 1880 and the proceeds would be held for the collective benefit of the Confederated Bands in the prescribed proportions, that is, the consideration visualized in the 1880 agreement as accruing to the Southern Utes would still accrue." 191 Ct. Cl., at 16, 423 F.2d, at 354. In other words, the treatment of the Southern Utes would be precisely that accorded the Uncompahgre and White River Utes when they left Colorado. But this event only serves to furnish still more proof that the Government remained firm in its position that the strip was ceded by the Act of 1880. </s> This is confirmed by the congressional reaction when the agreement was submitted for approval - nothing happened for six years and the agreement was again introduced in 1894. The opinion of the Court of Claims depicts the situation: </s> "Conceding the `anomalous position [of the Southern Utes] of having ceded their reservation and yet remaining on it', the Senate Committee on Indian Affairs favored ratification (Sen. Rep. No. 279, 53d [402 U.S. 159, 171] Cong., 2d Sess. 2-3 (1894)). Its House counterpart, although concurring in the view that the Southern Utes presented an anomalous situation, did not assent to ratification (H. R. Rep. No. 799, 53d Cong., 2d Sess. 2-3 (1894)). It believed that the proposed reservation was too large for the Southern Utes and hence would encourage their nomadic ways. Therefore, instead, the House Committee recommended enactment of a pending bill which was eventually passed as the Act of February 20, 1895 (28 Stat. 677). The stated purpose of this Act was to annul the agreement of 1888 and enforce the treaty of 1880 which sought to settle the Indians in severalty." 191 Ct. Cl., at 16, 423 F.2d, at 354. </s> This recital refutes, rather than supports, the notion that the United States followed a pattern or course of conduct after 1880 that regarded the Southern Utes rather than the United States as the owners of Royce Area 617. </s> Finally, we cannot agree with the Court of Claims that 5 of the Act of 1895 is "an explicit waiver of the Government's rights created in the 1880 agreement, whatever they were." 191 Ct. Cl., at 19-20, 423 F.2d, at 356. The Act of 1895, in addition to annulling the 1888 agreement, expressly confirmed the Act of 1880 and directed the Secretary of the Interior to proceed with allotments in severalty to the Southern Utes "in accordance with the provisions of the Act of 1880.." 28 Stat. 677 (1895). It went on to settle the grievances of those Southern Utes who wanted their own reservation rather than allotments in severalty by providing that "there shall be . . . set apart and reserved all that portion of their present reservation lying west of" a defined line in the strip. Id., at 678. We do not see how the United States could have "set apart and reserved" a portion of the strip for a reservation unless the strip belonged to it. The remainder of the strip to the east of the new reservation [402 U.S. 159, 172] was to be available for allotments in severalty to individual Southern Utes and the land not allotted was to "be and become a part of the public domain" to be sold for the benefit of said Utes. Ibid. Section 5 allocated the proceeds from sales of the land opened to public settlement. We look in vain for anything in that section to support the conclusion of the Court of Claims that it contains an "explicit waiver" by the United States of its rights under the Act of 1880 and that "[i]t follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880." 191 Ct. Cl., at 20, 423 F.2d, at 356. The Senate Report recommending passage of the Act of 1895 belies that conclusion. The report repeats, once again, the previously stated position of the Congress that "[o]n March 6, 1880, [the Utes] . . . ceded the whole of their reservation in Colorado to the United States, except such lands, if any, as might be allotted to them in severalty." S. Rep. No. 279, supra, at 2. We discern nothing in 5 save some revision of the formula for allocation of the proceeds of the sales of the unallotted lands in the portion of the strip east of the reservation. 7 We find absolutely [402 U.S. 159, 173] no language that the Southern Utes made any cession thereby, and, indeed, we are convinced that the wording is consistent only with the fact that they had no land to cede. 8 The Act of 1895 simply resolved the impasse over the allotments in severalty which had existed for 15 years because of the Southern Utes' reluctance to accept them. The United States created a new reservation for them, while still permitting allotments to those Southern Utes willing and qualified to engage in farming. This plan was clearly constructed in reliance [402 U.S. 159, 174] upon, not in derogation of, the cession made under the Act of 1880. </s> We therefore hold that the claim in this case is res judicata under the 1950 consent judgment enforcing the settlement agreement "as to any land . . . ceded to defendant by the Act of June 15, 1880." 9 </s> Reversed. </s> Footnotes [Footnote 1 The claim was filed pursuant to the Indian Claims Commission Act, 25 U.S.C. 70a. See also 25 U.S.C. 70k. </s> [Footnote 2 The 1950 cases were brought under the Jurisdictional Act of 1938, 52 Stat. 1209. The settlement reduced to consent judgment principally relied upon by the Government is that in Case No. 46640, 117 Ct. Cl. 433, 436 (1950). Related stipulations are reported at 117 Ct. Cl., at 434, 438, 440. The aggregate amount of the settlements exceeded $31 million. The United States also unsuccessfully asserted below defenses of failure to state a claim and failure to join all necessary parties. Those questions are not before us. </s> [Footnote 3 The United States admits that the stated consideration was not promptly paid. Brief for Petitioner 5. See also J. Dunn, Massacres of the Mountains 583-587 (1958). </s> [Footnote 4 These derive from a map of Indian land cessions, Pl. CXVI, drawn by Charles Royce in connection with a published study, Indian Land Cessions, 18th Ann. Rep., Bur. of Amer. Ethnology, pt. 2 (1896-1897). </s> [Footnote 5 While apparently the "massacre" involved only the White River Utes, all Utes were blamed. See exchange of correspondence during the uprising among the Indian agents, Secretary of the Interior, Governor of Colorado, and others printed in S. Exec. Doc. No. 31, 46th Cong., 2d Sess. (1880). See also J. Dunn, Massacres of the Mountains (1958), and U.S. Army, Military Division of the Missouri (Gen. P. Sheridan, Commanding), Record of Engagements with Hostile Indians 88-91 (1882). </s> [Footnote 6 The Court of Claims found proof that "the Interior Department at least was already viewing the Southern Ute territory as a permanent reservation not ceded under the terms of the 1880 cession," 191 Ct. Cl., at 13, 423 F.2d, at 352, in a description of the line in an 1882 letter to the district land offices. We find nothing in the letter to that effect, and in any event, it could hardly be the basis for disregarding the congressionally expressed design. </s> [Footnote 7 Section 5 of the Act of 1895 provides in pertinent part: </s> "That out of the moneys first realized from the sale of said lands so opened up to public settlement there shall be paid to said Indians the sum of fifty thousand dollars, as follows: Five thousand dollars annually for ten years . . . to be equally divided among all of said Indians per capita, irrespective of age or sex; also the sum of twenty thousand dollars of said proceeds shall be paid to the Secretary of the Interior, who shall invest the same in sheep and divide the said sheep among the said Indians per capita equally, irrespective of age or sex; [certain allotments also made to specific chiefs and headmen] . . . that the balance of the money realized from the sale of lands, after deducting expenses of sale and survey, shall be held in the Treasury of the United States in trust for the sole use and benefit of said Southern Ute Indians. That nothing herein provided shall in any manner be construed to change or interfere with the rights of said Indians under any other existing treaty regarding any annuities or trust funds or the interest thereon." 28 Stat. 678 (1895). </s> [Footnote 8 The Court of Claims also seems to have placed some reliance upon the following words in an order of the Acting Secretary of the Interior in 1938 which restored to the Southern Utes that portion of Royce Area 617 yet undisposed of: </s> "[P]ursuant to the provisions of the Act of February 20, 1895 (28 Stat. L., 677), the Southern Ute Band of Indians in Colorado ceded to the United States a large area of their reservation in the State of Colorado established expressly for their benefit under the treaty of June 15, 1880 (21 Stat. L., 199)," S. Doc. No. 194, 76th Cong., 3d Sess., 659 (1941) (compiled by C. Kappler). </s> The Court of Claims suggested that these words demonstrated that "[petitioner's] officials . . . not only concede that the lands were ceded in 1895, but they also enlighten us as to the status it retrospectively applied to the 1880 agreement." 191 Ct. Cl., at 20, 423 F.2d, at 356. </s> As we have said in this opinion, we find no creation of a reservation for the Southern Utes in the Act of 1880, nor can we find any words of cession in the Act of 1895. In addition, rather than attaching the significance suggested by the Court of Claims, the quoted words are more properly to be treated as careless draftsmanship: the time of cession, whether 1880 or 1895, was of absolutely no consequence to the act of restoration of undisposed lands in 1938. Finally, the quoted words do not support the application here of the principle that courts should give weight to a consistent reading of an ambiguous document by the agency charged with its enforcement. As our opinion shows, we do not find either the Act of 1880 or that of 1895 ambiguous. Moreover, what consistency the parties have shown in the enforcement of those acts, cuts against the contention of the respondent. </s> [Footnote 9 The Court of Claims' unreported order remanded the case to the Commission "for the hearing of additional evidence and the making of findings of fact with respect to the intention of the parties to the stipulation upon which a final judgment was entered in Court of Claims Case No. 46640 (117 Ct. Cl. 436) on July 13, 1950." App. 57. The Commission's supplemental findings after the hearing on remand are reported in 21 Ind. Cl. Comm. 268. We question the propriety of the remand, see Delaware Indians v. Cherokee Nation, 193 U.S. 127, 140 -141 (1904); United States v. William Cramp & Sons Ship & Engine Building Co., 206 U.S. 118, 128 (1907), but do not decide the question since it does not appear that the decision of the Court of Claims turned on any evidence of the intention of the parties to the stipulation. </s> MR. JUSTICE DOUGLAS, dissenting. </s> Though the facts of this case are complex, they present but one major question, whether the lands in question were "ceded to defendant by the Act of June 15, 1880," and included in a consent judgment entered by the Court of Claims in 1950. </s> More precisely, what was the status of these lands (Royce Area 617) between 1880 and 1895? Were they ceded in 1880, yet not released by the Indians until 1895? How can it be said that Royce Area 617 was ceded in 1880 yet retained until 1895, since, as the Court of Claims stated, "the Southern Utes were allowed to remain on their surveyed reservation for 15 years after the purported cession, and the right to remove them without their further consent was not asserted or exercised." 191 Ct. Cl. 1, 19, 423 F.2d 346, 356. [402 U.S. 159, 175] </s> Twice the facts have been considered, once by the Indian Claims Commission and once by the Court of Claims. And both have resolved the question presented in favor of the respondent, Southern Utes. That result below is amply supported by the record. </s> As of 1880, the Confederated Bands of Ute Indians occupied a reservation of 12,000,000 acres in western Colorado. The White River Utes and the Uncompahgre Utes occupied the northern portion (Royce Area 616), and the Southern Utes occupied an almost separated southern section (Royce Area 617). In 1880, the Utes entered into a treaty with the United States. It provided that the chiefs would persuade their people </s> "to cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement. </s> "The Southern Utes agree to remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico." Act of June 15, 1880, 21 Stat. 200. </s> The cession of the territory was on the express condition: </s> "That the Government of the United States cause the lands so set apart to be properly surveyed and to be divided among the said Indians in severalty . . . ." Id., at 200-201. </s> The Secretary of the Interior was authorized to have the land surveyed for allotment. Commissioners were to make the allotments, </s> "and all the lands not so allotted, the title to which is, by the said agreement of the confederated bands [402 U.S. 159, 176] of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States . . . ." Id., at 203. </s> The Ute Commission was formed. In 1881 it reported to Congress. The Uncompahgre and White River Utes had been moved, but the Southern Utes were still on their reservation. The Chairman of the Commission had decided that it would be unwise to move them. 1 The allotments, a condition of the cession, were not made. In 1882, Congress declared Royce Area 616 to be public land (22 Stat. 178). It provided that a line be established between Royce Area 616 and Royce Area 617. 2. The Secretary of the Interior ordered the line to be drawn "[c]ommencing at the southwest corner of the Ute ceded lands; thence extending the south boundary [402 U.S. 159, 177] of the Ute ceded lands to the western boundary of the State of Colorado." 2 (Emphasis supplied.) </s> As of this time it appears that neither the Southern Utes nor officials of the United States thought that Royce Area 617 had been ceded by the Act of 1880. The Southern Utes still considered it their reservation 3 and the Commissioner of Indian Affairs apparently felt likewise 4 - all of which is inconsistent with the theory that there had been a cession of it in 1880. </s> In 1888, Congress authorized the Secretary of the Interior to appoint a commission to negotiate with the Southern Utes. They agreed to settle in Utah, but Congress would not approve the agreement. Congress then passed the Act of 1895, 28 Stat. 677: </s> "That within six months after the passage of this Act the Secretary of the Interior shall cause allotment of land, in severalty, to be made to such of the Southern Ute Indians in Colorado as may elect and be considered by him qualified to take the same out [402 U.S. 159, 178] of the agricultural lands embraced in their present reservation in Colorado, such allotments to be made in accordance with the provisions of the Act of 1880. . . . and the amendments thereto . . . ." 2. </s> "That at the expiration of six months from the passage of this Act the President . . . shall issue his proclamation declaring the lands embraced within the present reservation of said Indians except such portions as may have been allotted or reserved under the provisions of the preceding sections of this Act, open to occupancy and settlement." 4, 28 Stat. 678. (Emphasis supplied.) </s> The money realized from the sale of the lands set aside was to be held for the sole benefit of the Southern Ute Indians. Section 6 declared that the provisions of the Act were not to take effect until accepted by a majority of the male adult Indians. A majority did accept. </s> Some of the Southern Utes took allotments in severalty. The Weeminuche Utes, now the Ute Mountain Utes, elected, however, to settle on a tract at the west end of their "present reservation." 3. </s> A substantial amount of land in Royce Area 617 was settled by whites, and disposed of by the United States Government. The subject of the present suit before the Indian Claims Commission includes, inter alia, the proceeds from land sold and damages for land given away in violation of the Act of 1895. </s> In 1934, Congress allowed restoration of all land in Royce Area 617 not disposed of under the Act of 1895. (48 Stat. 984.) The Secretary of the Interior restored all such land to the tribal sovereignty of the Southern Utes. That order began: </s> "[P]ursuant to the provisions of the Act of February 20, 1895 . . . the Southern Ute Band of Indians in Colorado ceded to the United States a large area of [402 U.S. 159, 179] their reservation in the State of Colorado established expressly for their benefit under the treaty of June 15, 1880 . . . ." (Order of Restoration, September 14, 1938, S. Doc. No. 194, 76th Cong., 3d Sess., 659 (1941) (compiled by C. Kappler).) (Emphasis supplied.) </s> The Confederated Bands have sued the United States in the past for damages arising out of breaches of the 1880 treaty. One such suit was settled in 1950, and judgment was entered pursuant to a stipulation of the parties. A schedule of all land covered by the judgment was included, but omissions were provided for: </s> "So far as the parties with diligence have been able to determine these descriptions represent all the land so disposed of and set aside. However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but, whether included therein or not, also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 . . . ." 117 Ct. Cl. 433, 437. </s> None of the land in Royce Area 617 (360 sections or 21.8% of the total area which had been wrongly disposed of) was therefore included. </s> The Indian Claims Commission found that the United States had acknowledged by its actions that the Southern Ute Reservation was not ceded by the 1880 Agreement. Therefore, any accounting which included Southern Ute lands in Case No. 30360, 45 Ct. Cl. 440 (1910), was erroneous and beyond the jurisdiction of the Court of Claims to enter. The Court of Claims remanded this case to the Commission for a determination of the intention of the parties in entering into the 1950 stipulation. Plaintiffs produced evidence that they never intended Royce Area 617 to be covered. The broad language of the stipulation was to insure that minor omissions were covered. [402 U.S. 159, 180] "Diligence" would not have permitted the exclusion of 360 sections of land. The Government refused to produce any documents which might have disclosed the intent of its signatories, claiming this was the "work product." The Commission found no intent to include land in Royce Area 617 in the stipulation. </s> The Court of Claims found that the language of the Act of 1880 appeared to be inconsistent with the findings of the Commission, but that the events from 1880 to 1895 supported its conclusion, i. e., the decision to postpone issuing allotments and to preserve the reservation, the separation of Royce Area 617 by the Act of 1882, the description of the dividing line by the Secretary of the Interior, the negotiations with the Southern Utes to move, the belief by the Commissioner of Indian Affairs of a duty to keep white people off the "reservation," 5 the Act of 1888, and the Act of 1895 providing additional compensation for the Southern Utes 6 and requiring their approval. 7 The evidence weighed "substantially in favor of the Commission's interpretation." The Government's conduct, the Court of Claims said, evidenced a recognition that "by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead." 191 Ct. Cl., at 19, 423 F.2d, at 356. </s> "Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government's rights [402 U.S. 159, 181] created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880." 191 Ct. Cl., at 19-20, 423 F.2d, at 356. </s> This holding was supported also by the language employed by the Secretary of the Interior in the Restoration of 1938. 8 </s> Since the Southern Ute land was not ceded in 1880, any claims involving that land were beyond the mandate of the Jurisdictional Act of 1909, 35 Stat. 781, and improvidently heard in 1910. Likewise the 1950 judgment was no bar. Neither party had intended it to apply to Royce Area 617. If the intention of the parties was irrelevant, the stipulation on its face would not apply to "areas not effectively ceded." 191 Ct. Cl., at 22, 423 F.2d, at 358. </s> This Court now reviews those findings and reverses. In doing so it simply remarshals the evidence for the new result, ignoring the limits of this Court's appellate jurisdiction over the Court of Claims. The question present is either a question of fact or, at best, a mixed question of law and fact and the determination of the Court of Claims is binding on this Court if it is supported by substantial evidence. United States v. Swift & Co., 270 U.S. 124, 138 ; United States v. Omaha Tribe of Indians, 253 U.S. 275, 281 . The result below is clearly supported. It is not the function of this Court to conduct a trial de novo on the issues. United States v. Felin & Co., 334 U.S. 624, 650 (Jackson, J., dissenting); United States v. Penn Mfg. Co., 337 U.S. 198, 207 n. 4. </s> I would affirm the judgment of the Court of Claims. </s> [Footnote 1 It has been suggested that the Indians refused to take the allotments or were stalling. This appears inconsistent with the report of Mr. Manypenny, the Chairman of the Ute Commission. The white settlers were dissatisfied on learning that the Indians might be allowed to settle in certain valleys which the settlers desired. The allotment, and sale of the residue to whites, would leave the Indians in "close proximity to the white settlements [and] will subject the Utes . . . to constant annoyance by evil-disposed persons." The Indians had to be protected from this. </s> "To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the 1880. agreement, so far as these Indians are concerned, as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation, and let the United States laws in relation to Indian reservations have full force therein. Then the land selected, and upon which the Indians are to be located, can be kept free from intruders." (H. R. Exec. Doc. No. 1, pt. 5, Vol. 2, 47th Cong., 1st Sess., 383, 393 (1881)). He did indicate that the Indians did not want to live in houses, but not that they would not accept the allotments. </s> [Footnote 2 "From this description it would seem that the Interior Department at least was already viewing the Southern Ute territory as a permanent reservation not ceded under the terms of the 1880 cession. Specifically, the letter states that the survey line commence at, not in, the southwest corner of the ceded Ute land. Adhering to defendant's contention that all lands were ceded in 1880, a literal interpretation of this letter would lead to an anomalous result. If the starting point was placed at the southwestern corner of Ute ceded land, the point would coincide with the converging point of the New Mexico, Colorado and Utah borders. The line could not extend to the western boundary of Colorado because it would start there." 191 Ct. Cl., at 13, 423 F.2d, at 352. </s> [Footnote 3 The Southern Utes came to Washington in 1886 to negotiate for an exchange of their reservation for one to the west. See S. Rep. No. 836, 49th Cong., 1st Sess., 1-2 (1886). </s> [Footnote 4 On April 5, 1886, he reported to the Secretary of the Interior, "[W]e are bound by solemn treaty stipulations with these Indians to prevent white people from entering upon or crossing said reservation." Id., at 3. </s> [Footnote 5 N. 4, supra. </s> [Footnote 6 The treaty of 1880 required that the proceeds from sales of all land ceded under that agreement had to be credited to the benefit of all Utes. To credit the money received only to the account of Southern Utes would have been a violation of the treaty if the land had been ceded in 1880. </s> [Footnote 7 If the land had been ceded under the 1880 agreement, acceptance of the Act of 1895 was completely unnecessary. </s> [Footnote 8 "Thus, defendant's officials do not only concede that the lands were ceded in 1895, but they also enlighten us as to the status it retrospectively applied to the 1880 agreement. Such a statement by an executive agency bearing on the meaning of a treaty must be accorded great weight." 191 Ct. Cl., at 20, 423 F.2d, at 356. </s> [402 U.S. 159, 182]

United States Supreme Court UNITED STATES v. MUNSINGWEAR(1950) No. 23 Argued: October 18, 1950Decided: November 13, 1950 </s> The United States sued respondent for alleged violations of a price-fixing regulation, seeking, in separate counts, (1) an injunction and (2) treble damages. By agreement, the second count was held in abeyance pending trial and final determination of the suit for an injunction. Holding that respondent's prices complied with the regulation, the District Court dismissed the complaint. While an appeal was pending the commodity involved was decontrolled, and the Court of Appeals dismissed the appeal for mootness. The United States acquiesced in the dismissal and made no motion to vacate the judgment. The District Court then dismissed the action for treble damages on the ground that the matter was res judicata. Held: The dismissal is sustained. Pp. 37-41. </s> (a) The issues and the parties being the same in both suits, the District Court having jurisdiction both over the parties and the subject matter, and its judgment in the injunction suit remaining unmodified, the case falls squarely within the rule of res judicata. Southern Pacific R. Co. v. United States, 168 U.S. 1 . Pp. 37-38. </s> (b) The dismissal of the appeal on the ground of mootness and the deprivation of the United States of any review of the case in the Court of Appeals does not warrant an exception to the established rule, even though the United States had a statutory right to review in the Court of Appeals. Pp. 38-41. </s> (c) The United States could have protected its rights by moving in the Court of Appeals to vacate the judgment below and remand with a direction to dismiss. Having slept on its rights by failing to do so, it cannot obtain relief in this Court. Pp. 39-41. </s> 178 F.2d 204, affirmed. </s> The Court of Appeals affirmed an order of the District Court dismissing as res judicata a suit by the United States for violation of a price regulation. 178 F.2d 204. This Court granted certiorari. 339 U.S. 941 . Affirmed, p. 41. [340 U.S. 36, 37] </s> Melvin Richter argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Stanley M. Silverberg and Paul A. Sweeney. </s> John M. Palmer argued the cause for respondent. With him on the brief was H. C. Mackall. </s> MR. JUSTICE DOUGLAS delivered the opinion of the Court. </s> The United States filed a complaint on two counts against the respondent, alleging violations of a regulation fixing the maximum price of commodities which respondent sold. The first count prayed for an injunction, the second sought treble damages. By agreement and a pretrial order, the second count was held in abeyance pending trial and final determination of the suit for an injunction. The same procedure was followed as respects another suit for treble damages raising the same issues and covering a later period. The District Court held that respondent's prices complied with the regulation. Accordingly it dismissed the complaint. 63 F. Supp. 933. The United States appealed from that judgment to the Court of Appeals. While the appeal was pending the commodity involved was decontrolled. Respondent then moved to dismiss the appeal on the ground that the case had become moot. The Court of Appeals granted the motion and dismissed the appeal for mootness. 162 F.2d 125. </s> Respondent then moved in the District Court to dismiss the treble damage actions on the ground that the unreversed judgment of the District Court in the injunction suit was res judicata of those other actions. This motion was granted, the District Court directing the treble damage actions to be dismissed. On appeal the Court of Appeals, by a divided vote, affirmed. 178 F.2d 204. </s> The controversy in each of the suits concerned the proper pricing formula applicable to respondent's commodities [340 U.S. 36, 38] under the maximum price regulation. That question was in issue and determined in the injunction suit. The parties were the same both in that suit and in the suits for treble damages. There is no question but that the District Court in the injunction suit had jurisdiction both over the parties and the subject matter. And its judgment remains unmodified. We start then with a case which falls squarely within the classic statement of the rule of res judicata in Southern Pacific R. Co. v. United States, 168 U.S. 1, 48 -49: </s> "The general principle announced in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified." </s> And see Cromwell v. County of Sac, 94 U.S. 351, 352 ; Commissioner v. Sunnen, 333 U.S. 591, 597 -598. The question whether the respondent had sold the commodities in violation of the federal regulation, having been determined in the first suit, is therefore laid at rest by a principle which seeks to bring litigation to an end and promote certainty in legal relations. </s> That is the result unless the dismissal of the appeal on the ground of mootness and the deprivation of the United States of any review of the case in the Court of Appeals warrant an exception to the established rule. </s> The absence of a right to appeal was held in Johnson Co. v. Wharton, 152 U.S. 252 , to make no difference, the determination in the first suit being binding in a second [340 U.S. 36, 39] suit on a different claim. Petitioner argues that that case is distinguishable because here Congress provided an appeal. It contends that if the right to appeal is to be protected, the rigors of res judicata must be alleviated. Concededly the judgment in the first suit would be binding in the subsequent ones if an appeal, though available, had not been taken or perfected. Wilson's Executor v. Deen, 121 U.S. 525 ; Hubbell v. United States, 171 U.S. 203 . But it is said that those who have been prevented from obtaining the review to which they are entitled should not be treated as if there had been a review. That is the argument. The hardship of a contrary rule is presented. Estoppel is urged. And authorities are advanced to support the view that res judicata should not apply in this situation. 1 </s> But we see no reason for creating the exception. If there is hardship in this case, it was preventable. The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss. 2 That was said in Duke Power Co. v. Greenwood County, 299 U.S. 259, 267 , [340 U.S. 36, 40] to be "the duty of the appellate court." That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance. When that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary. </s> In this case the United States made no motion to vacate the judgment. It acquiesced in the dismissal. It did not avail itself of the remedy it had to preserve its rights. Denial of a motion to vacate could bring the case here. Our supervisory power over the judgments of the lower federal courts is a broad one. See 28 U.S.C. 2106, 62 Stat. 963; United States v. Hamburg-American Co., [340 U.S. 36, 41] 239 U.S. 466, 478 ; Walling v. Reuter Co., 321 U.S. 671, 676 -677. As already indicated, it is commonly utilized in precisely this situation to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences. </s> The case is therefore one where the United States, having slept on its rights, now asks us to do what by orderly procedure it could have done for itself. The case illustrates not the hardship of res judicata but the need for it in providing terminal points for litigation. </s> Affirmed. </s> MR. JUSTICE BLACK is of the opinion that res judicata should not be applied under the circumstances here shown. </s> Footnotes [Footnote 1 See Gelpi v. Tugwell, 123 F.2d 377; Allegheny County v. Maryland Casualty Co., 146 F.2d 633; Scott, Collateral Estoppel by Judgment, 56 Harv. L. Rev. 1. Restatement, Judgments, 69 (2) reads as follows: "Where a party to a judgment cannot obtain the decision of an appellate court because the matter determined against him is immaterial or moot, the judgment is not conclusive against him in a subsequent action on a different cause of action." </s> [Footnote 2 This has become the standard disposition in federal civil cases: New Orleans Flour Inspectors v. Glover, 161 U.S. 101, 103 , modifying 160 U.S. 170 ; United States v. Hamburg-American Co., 239 U.S. 466 ; Berry v. Davis, 242 U.S. 468 ; United States v. American-Asiatic Steamship Co., 242 U.S. 537 ; Board of Public Utility Commissioners v. Compania General de Tabacos de Filipinas, 249 U.S. 425 ; Commercial Cable Co. v. Burleson, 250 U.S. 360 ; United States v. Alaska [340 U.S. 36, 40] Steamship Co., 253 U.S. 113 ; Heitmuller v. Stokes, 256 U.S. 359 ; Atherton Mills v. Johnston, 259 U.S. 13 ; Brownlow v. Schwartz, 261 U.S. 216 ; Alejandrino v. Quezon, 271 U.S. 528 ; Norwegian Nitrogen Co., v. Tariff Commission, 274 U.S. 106 ; United States v. Anchor Coal Co., 279 U.S. 812 ; Sprunt & Son v. United States, 281 U.S. 249 ; Hargis v. Bradford, 283 U.S. 781 ; Mahan v. Hume, 287 U.S. 575 ; Railroad Commission of Texas v. Macmillan, 287 U.S. 576 ; Coyne v. Prouty, 289 U.S. 704 ; First Union Trust & Savings Bank v. Consumers Co., 290 U.S. 585 ; Danciger Oil & Refining Co. v. Smith, 290 U.S. 599 ; O'Ryan v. Mills Novelty Co., 292 U.S. 609 ; Hammond Clock Co. v. Schiff, 293 U.S. 529 ; Bracken v. S. E. C., 299 U.S. 504 ; Leader v. Apex Hosiery Co., 302 U.S. 656 ; Woodring v. Clarksburg-Columbus Short Route Bridge Co., 302 U.S. 658 ; Retail Food Clerks & Managers Union v. Union Premier Food Stores, 308 U.S. 526 ; S. E. C. v. Long Island Lighting Co., 325 U.S. 833 ; Montgomery Ward & Co. v. United States, 326 U.S. 690 ; Brotherhood of Locomotive Firemen & Enginemen v. Toledo, P. & W. R. Co., 332 U.S. 748 ; S. E. C. v. Engineers Public Service Co., 332 U.S. 788 ; Hodge v. Tulsa County Election Board, 335 U.S. 889 ; S. E. C. v. Philadelphia Co., 337 U.S. 901 . </s> So far as federal civil cases are concerned, there are but few exceptions to this practice in recent years. See Cantos v. Styer, 329 U.S. 686 ; Uyeki v. Styer, 329 U.S. 689 ; Pan American Airways Corp. v. Grace & Co., 332 U.S. 827 ; Schenley Distilling Corp. v. Anderson, 333 U.S. 878 . </s> [340 U.S. 36, 42]

United States Supreme Court WASHINGTON v. FISHING VESSEL ASSN.(1979) No. 77-983 Argued: February 28, 1979Decided: July 2, 1979 </s> [Footnote * Together with Washington et al. v. Puget Sound Gillnetters Assn. et al., also on certiorari to the same court (see this Court's Rule 23 (5)); and No. 78-119, Washington et al. v. United States et al., and No. 78-139, Puget Sound Gillnetters Assn. et al. v. United States District Court for the Western District of Washington (United States et al., Real Parties in Interest), on certiorari to the United States Court of Appeals for the Ninth Circuit. </s> In 1854 and 1855, the United States entered into a series of treaties with certain Indian tribes whereby the Indians relinquished their interest in certain lands in what is now the State of Washington in exchange for monetary payments, certain relatively small parcels of land reserved for their exclusive use, and other guarantees, including protection of their "right of taking fish at usual and accustomed grounds and stations . . . in common with all citizens of the Territory." The principal question in this extensive litigation concerns the character of the treaty right to take fish. In 1970, the United States, on its own behalf and as trustee for seven Indian tribes, brought suit against the State of Washington in Federal District Court, seeking an interpretation of the treaties and an injunction requiring the State to protect the Indians' share of runs of anadromous fish. At various stages of the proceedings, additional tribes, the State Departments of Fisheries and Game, and a commercial fishing group were joined as parties. The District Court held that under the treaties, the Indians are currently entitled to a 45% to 50% share of the harvestable fish passing through their recognized tribal fishing grounds in the case area, to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. With a slight modification of one of the adjustments, the Court of Appeals affirmed, and this Court denied certiorari. Pursuant to the District Court's injunction, the Department of Fisheries promulgated regulations protecting the Indians' treaty rights, but the State Supreme Court, in two cases (consolidated here in No. 77-983), ruled that the Fisheries Department could not comply with the federal injunction, holding, inter alia, that, as a matter of federal law, the treaties did not give the Indians a right to a share of the fish runs. [443 U.S. 658, 659] The District Court then entered a series of orders enabling it directly to supervise those aspects of the State's fisheries necessary to the preservation of treaty fishing rights. The District Court's power to take such direct action and, in doing so, to enjoin persons who were not parties to the proceedings was affirmed by the Court of Appeals. That court, in a separate opinion, also held that regulations of the International Pacific Salmon Fisheries Commission (IPSFC) posed no impediment to the District Court's interpretation of the treaty language and to its enforcement of that interpretation. </s> Held: </s> 1. The language of the treaties securing a "right of taking fish . . . in common with all citizens of the Territory" was not intended merely to guarantee the Indians access to usual and accustomed fishing sites and an "equal opportunity" for individual Indians, along with non-Indians, to try to catch fish, but instead secures to the Indian tribes a right to harvest a share of each run of anadromous fish that passes through tribal fishing areas. This conclusion is mandated by a fair appraisal of the purpose of the treaty negotiations, the language of the treaties, and, particularly, this Court's prior decisions construing the treaties. United State v. Winans, 198 U.S. 371 ; Puyallup Tribe v. Washington Game Dept., 391 U.S. 392 (Puyallup I); Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (Puyallup II); Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (Puyallup III). Pp. 674-685. </s> 2. An equitable measure of the common right to take fish should initially divide the harvestable portion of each run that passes through a "usual and accustomed" place into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount. Cf. Puyallup III, supra. Although the District Court's exercise of its discretion, as slightly modified by the Court of Appeals, is in most respects unobjectionable, the District Court erred in excluding fish taken by the Indians on their reservations from their share of the runs, and in excluding fish caught for the Indians' ceremonial and subsistence needs. Pp. 685-689. </s> 3. The Convention of May 26, 1930, whereby Canada and the United States agreed that the catch of Fraser River salmon should be equally divided between Canadian and American fishermen, subject to regulations proposed by the IPSFC for approval by both countries, does not pre-empt the Indians' fishing rights under the treaties with respect to Fraser River salmon runs passing through certain "usual and accustomed" places of treaty tribes. Pp. 689-692. </s> 4. Any state-law prohibition against compliance with the District Court's decree cannot survive the command of the Supremacy Clause, [443 U.S. 658, 660] and the State Game and Fisheries Departments, as parties to this litigation, may be ordered to prepare a set of rules that will implement the court's interpretation of the parties' rights even if state law withholds from them the power to do so. Cf. Puyallup III, supra. Whether or not the Game and Fisheries Departments may be ordered actually to promulgate regulations having effect as a matter of state law, the District Court may assume direct supervision of the fisheries if state recalcitrance or state-law barriers should be continued. If the spirit of cooperation motivating the State Attorney General's representation to this Court that definitive resolution of the basic federal question of construction of the treaties will allow state compliance with federal-court orders is not confirmed by the conduct of state officials, the District Court has the power to undertake the necessary remedial steps and to enlist the aid of appropriate federal law enforcement agents in carrying out those steps. Pp. 692-696. </s> No. 78-119, 573 F.2d 1118, affirmed, and 573 F.2d 1123, vacated and remanded; No. 77-983, 88 Wash. 2d 677, 565 P.2d 1151 (first case), and 89 Wash. 2d 276, 571 P.2d 1373 (second case), vacated and remanded; No. 78-139, 573 F.2d 1123, vacated and remanded. </s> STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined and in Parts I, II, and III of which STEWART, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed an opinion dissenting in part, in which STEWART and REHNQUIST, JJ., joined, post, p. 696. </s> Slade Gorton, Attorney General of Washington, argued the cause for the State of Washington. With him on the briefs were Edward B. Mackie, Deputy Attorney General, and James M. Johnson, Senior Assistant Attorney General, and Timothy R. Malone, Assistant Attorney General. Philip A. Lacovara argued the cause for the Puget Sound Gillnetters Association et al. With him on the briefs were Charles E. Yates, Douglas Fryer, Joseph T. Mijich, and Gerald Goldman. Richard W. Pierson filed a brief for the Washington State Commercial Passenger Fishing Vessel Association in all cases. </s> Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General [443 U.S. 658, 661] Barnett, and Kathryn A. Oberly. Mason D. Morisset argued the cause for the Lummi Indian Tribe et al. With him on the brief were Steven S. Anderson, Thomas P. Schlosser, Alan C. Stay, Robert Pelcyger, Daniel A. Raas, William H. Rodgers, Jr., and John Clinebell. Michael Taylor filed a brief for the Quinault Indian Nation. James B. Hovis filed a brief for the Yakima Nation, respondent in Nos. 78-119 and 78-139. Dennis C. Karnopp and Douglas Nash filed a brief for the Confederated Tribes of the Warm Springs Reservation Oregon et al., respondents in Nos. 78-119 and 78-139.Fn </s> Fn [443 U.S. 658, 661] Briefs of amici curiae urging reversal in No. 77-983 and affirmance in Nos. 78-119 and 78-139 were filed by David H. Getches, Burt Neuborne, and Stephen L. Pevar for the American Civil Liberties Union et al.; and by Arthur Lazarus, Jr., for the Nez Perce Tribe of Idaho. Briefs of amici curiae were filed by Frederick L. Noland for the American Friends Service Committee et al.; by J. Carl Mundt and Henry H. Happel III for the American Institute of Fishery Research Biologists; by Don S. Willner for the Northwest Steelhead and Salmon Council of Trout Unlimited; by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation; and by Paul W. Steere for the Pacific Seafood Processors Association. </s> MR. JUSTICE STEVENS delivered the opinion of the Court. </s> To extinguish the last group of conflicting claims to lands lying west of the Cascade Mountains and north of the Columbia River in what is now the State of Washington, 1 the United States entered into a series of treaties with Indian [443 U.S. 658, 662] tribes in 1854 and 1855. 2 The Indians relinquished their interest in most of the Territory in exchange for monetary payments. In addition, certain relatively small parcels of land were reserved for their exclusive use, and they were afforded other guarantees, including protection of their "right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory." 10 Stat. 1133. </s> The principal question presented by this litigation concerns the character of that treaty right to take fish. Various other issues are presented, but their disposition depends on the answer to the principal question. Before answering any of these questions, or even stating the issues with more precision, we shall briefly describe the anadromous fisheries of the Pacific Northwest, the treaty negotiations, and the principal components of the litigation complex that led us to grant these three related petitions for certiorari. </s> I </s> Anadromous fish hatch in fresh water, migrate to the ocean where they are reared and reach mature size, and eventually complete their life cycle by returning to the fresh-water place of their origin to spawn. Different species have different life cycles, some spending several years and traveling great distances in the ocean before returning to spawn and some even returning to spawn on more than one occasion before dying. [443 U.S. 658, 663] 384 F. Supp. 312, 384, 405. See Comment, State Power and the Indian Treaty Right to Fish, 59 Calif. L. Rev. 485, 501, and n. 99 (1971). The regular habits of these fish make their "runs" predictable; this predictability in turn makes it possible for both fishermen and regulators to forecast and to control the number of fish that will be caught or "harvested." Indeed, as the terminology associated with it suggests, the management of anadromous fisheries is in many ways more akin to the cultivation of "crops" - with its relatively high degree of predictability and productive stability, subject mainly to sudden changes in climatic patterns - than is the management of most other commercial and sport fisheries. 384 F. Supp., at 351, 384. </s> Regulation of the anadromous fisheries of the Northwest is nonetheless complicated by the different habits of the various species of salmon and trout involved, by the variety of methods of taking the fish, and by the fact that a run of fish may pass through a series of different jurisdictions. 3 Another complexity arises from the fact that the State of Washington has attempted to reserve one species, steelhead trout, for sport fishing and therefore conferred regulatory jurisdiction over that species upon its Department of Game, whereas the various species of salmon are primarily harvested by commercial fishermen and are managed by the State's Department of Fisheries. Id., at 383-385, 389-399. Moreover, adequate regulation not only must take into account the potentially [443 U.S. 658, 664] conflicting interests of sport and commercial fishermen, as well as those of Indian and nontreaty fishermen, but also must recognize that the fish-runs may be harmed by harvesting either too many or too few of the fish returning to spawn. Id., at 384, 390. </s> The anadromous fish constitute a natural resource of great economic value to the State of Washington. Millions of salmon, with an average weight of from 4 or 5 to about 20 pounds, depending on the species, are harvested each year. Over 6,600 nontreaty fishermen and about 800 Indians make their livelihood by commercial fishing; moreover, some 280,000 individuals are licensed to engage in sport fishing in the State. 4 Id., at 387. See id., at 399. </s> II </s> One hundred and twenty-five years ago when the relevant treaties were signed, anadromous fish were even more important to most of the population of western Washington than they are today. At that time, about three-fourths of the approximately 10,000 inhabitants of the area were Indians. Although in some respects the cultures of the different tribes varied - some bands of Indians, for example, had little or no tribal organization 5 while others, such as the Makah and the Yakima, were highly organized - all of them shared a vital and unifying dependence on anadromous fish. Id., at 350. See Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 179 (BRENNAN, J., dissenting in part). [443 U.S. 658, 665] </s> Religious rites were intended to insure the continual return of the salmon and the trout; the seasonal and geographic variations in the runs of the different species determined the movements of the largely nomadic tribes. 384 F. Supp., at 343, 351, 382; 459 F. Supp. 1020, 1079; 520 F.2d 676, 682. Fish constituted a major part of the Indian diet, was used for commercial purposes, 6 and indeed was traded in substantial volume. 7 The Indians developed food-preservation techniques [443 U.S. 658, 666] that enabled them to store fish throughout the year and to transport it over great distances. 384 F. Supp., at 351. 8 They used a wide variety of methods to catch fish, including the precursors of all modern netting techniques. Id., at 351, 352, 362, 368, 380. Their usual and accustomed fishing places were numerous and were scattered throughout the area, and included marine as well as fresh-water areas. Id., at 353, 360, 368-369. </s> All of the treaties were negotiated by Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory, and a small group of advisers. Contemporaneous documents make it clear that these people recognized the vital importance of the fisheries to the Indians and wanted to protect them from the risk that non-Indian settlers might seek to monopolize their fisheries. Id., at 355, 363. 9 There is no evidence of the precise understanding the [443 U.S. 658, 667] Indians had of any of the specific English terms and phrases in the treaty. 10 Id., at 356. It is perfectly clear, however, that the Indians were vitally interested in protecting their right to take fish at usual and accustomed places, whether on or off the reservations, id., at 355, and that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right. 11 </s> Referring to the negotiations with the Yakima Nation, by far the largest of the Indian tribes, the District Court found: </s> "At the treaty council the United States negotiators promised, and the Indians understood, that the Yakimas would forever be able to continue the same off-reservation food gathering and fishing practices as to time, place, method, species and extent as they had or were exercising. The Yakimas relied on these promises and they formed a material and basic part of the treaty and of the Indians' [443 U.S. 658, 668] understanding of the meaning of the treaty." Id., at 381 (record citations omitted). </s> See also id., at 363 (similar finding regarding negotiations with the Makah Tribe). </s> The Indians understood that non-Indians would also have the right to fish at their off-reservation fishing sites. But this was not understood as a significant limitation on their right to take fish. 12 Because of the great abundance of fish and the limited population of the area, it simply was not contemplated that either party would interfere with the other's fishing rights. The parties accordingly did not see the need and did not intend to regulate the taking of fish by either Indians or non-Indians, nor was future regulation foreseen. Id., at 334, 355, 357. </s> Indeed, for several decades after the treaties were signed, Indians continued to harvest most of the fish taken from the waters of Washington, and they moved freely about the Territory and later the State in search of that resource. Id., at 334. The size of the fishery resource continued to obviate the need during the period to regulate the taking of fish by either Indians or non-Indians. Id., at 352. Not until major economic developments in canning and processing occurred in the last few years of the 19th century did a significant non-Indian fishery develop. 13 It was as a consequence of these [443 U.S. 658, 669] developments, rather than of the treaty, that non-Indians began to dominate the fisheries and eventually to exclude most Indians from participating in it - a trend that was encouraged by the onset of often discriminatory state regulation in the early decades of the 20th century. Id., at 358, 394, 404, 407; 459 F. Supp., at 1032. 14 </s> In sum, it is fair to conclude that when the treaties were negotiated, neither party realized or intended that their agreement would determine whether, and if so how, a resource that had always been thought inexhaustible would be allocated between the native Indians and the incoming settlers when it later became scarce. </s> III </s> Unfortunately, that resource has now become scarce, and the meaning of the Indians' treaty right to take fish has accordingly become critical. The United States Court of Appeals for the Ninth Circuit and the Supreme Court of the State of Washington have issued conflicting decisions on its meaning. In addition, their holdings raise important ancillary questions that will appear from a brief review of this extensive litigation. </s> The federal litigation was commenced in the United States District Court for the Western District of Washington in 1970. The United States, on its own behalf and as trustee for seven Indian tribes, brought suit against the State of Washington [443 U.S. 658, 670] seeking an interpretation of the treaties and an injunction requiring the State to protect the Indians' share of the anadromous fish runs. Additional Indian tribes, the State's Fisheries and Game Departments, and one commercial fishing group, were joined as parties at various stages of the proceedings, while various other agencies and groups, including all of the commercial fishing associations that are parties here, participated as amici curiae. 384 F. Supp., at 327, 328, and n. 4; 459 F. Supp., at 1028. </s> During the extensive pretrial proceedings, four different interpretations of the critical treaty language were advanced. Of those, three proceeded from the assumption that the language required some allocation to the Indians of a share of the runs of fish passing through their traditional fishing areas each year. The tribes themselves contended that the treaties had reserved a pre-existing right to as many fish as their commercial and subsistence needs dictated. The United States argued that the Indians were entitled either to a 50% share of the "harvestable" fish that originated in and returned to the "case area" and passed through their fishing places, 15 or to their needs, whichever was less. The Department of Fisheries agreed that the Indians were entitled to "a fair and equitable share" stated in terms of a percentage of the harvestable salmon in the area; ultimately it proposed a share of "one-third." </s> Only the Game Department thought the treaties provided no assurance to the Indians that they could take some portion [443 U.S. 658, 671] of each run of fish. That agency instead argued that the treaties gave the Indians no fishing rights not enjoyed by non-treaty fishermen except the two rights previously recognized by decisions of this Court - the right of access over private lands to their usual and accustomed fishing grounds, see Seufert Bros. Co. v. United States, 249 U.S. 194 ; United States v. Winans, 198 U.S. 371 , and an exemption from the payment of license fees. See Tulee v. Washington, 315 U.S. 681 . </s> The District Court agreed with the parties who advocated an allocation to the Indians, and it essentially agreed with the United States as to what that allocation should be. It held that the Indians were then entitled to a 45% to 50% share of the harvestable fish that will at some point pass through recognized tribal fishing grounds in the case area. 16 The share was to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. Fish caught by Indians for ceremonial and subsistence purposes as well as fish caught within a reservation were excluded from the calculation of the tribes' share. 17 In addition, in order to compensate for fish caught outside of the case area, i. e., beyond the State's jurisdiction, the court made an "equitable adjustment" to increase the allocation to the Indians. The court left it to the individual tribes involved to agree among themselves on how best to divide the Indian share of runs that pass through the usual and accustomed grounds of more than one tribe, and it postponed until a later date the proper accounting for hatchery-bred fish. 384 F. Supp., at 416-417; 459 F. Supp., [443 U.S. 658, 672] at 1129. With a slight modification, 18 the Court of Appeals for the Ninth Circuit affirmed, 520 F.2d 676, and we denied certiorari, 423 U.S. 1086 . 19 </s> The injunction entered by the District Court required the Department of Fisheries (Fisheries) to adopt regulations protecting the Indians' treaty rights. 384 F. Supp., at 416-417. After the new regulations were promulgated, however, they were immediately challenged by private citizens in suits commenced in the Washington state courts. The State Supreme Court, in two cases that are here in consolidated form in No. 77-983, ultimately held that Fisheries could not comply with the federal injunction. Puget Sound Gillnetters Assn. v. Moos, 88 Wash. 2d 677, 565 P.2d 1151 (1977); Fishing Vessel Assn. v. Tollefson, 89 Wash. 2d 276, 571 P.2d 1373 (1977). </s> As a matter of federal law, the state court first accepted the Game Department's and rejected the District Court's interpretation of the treaties and held that they did not give the Indians a right to a share of the fish runs, and second concluded that recognizing special rights for the Indians would violate the Equal Protection Clause of the Fourteenth Amendment. The opinions might also be read to hold, as a matter of state [443 U.S. 658, 673] law, that Fisheries had no authority to issue the regulations because they had a purpose other than conservation of the resource. In this Court, however, the Attorney General of the State disclaims the adequacy and independence of the state-law ground and argues that the state-law authority of Fisheries is dependent on the answers to the two federal-law questions discussed above. Brief for State of Washington 99. See n. 34, infra. We defer to that interpretation, subject, of course, to later clarification by the State Supreme Court. Because we are also satisfied that the constitutional holding is without merit, 20 our review of the state court's judgment will be limited to the treaty issue. </s> When Fisheries was ordered by the state courts to abandon its attempt to promulgate and enforce regulations in compliance with the federal court's decree - and when the Game Department simply refused to comply - the District Court entered a series of orders enabling it, with the aid of the United States Attorney for the Western District of Washington and various federal law enforcement agencies, directly to supervise those aspects of the State's fisheries necessary to the preservation of treaty fishing rights. 459 F. Supp. 1020. The District Court's power to take such direct action and, in doing so, to enjoin persons who were not parties to the proceeding was affirmed by the United States Court of Appeals [443 U.S. 658, 674] for the Ninth Circuit. 573 F.2d 1123. That court, in a separate opinion, 573 F.2d 1118, also held that regulations of the International Pacific Salmon Fisheries Commission posed no impediment to the District Court's interpretation of the treaty language and to its enforcement of that interpretation. Subsequently, the District Court entered an enforcement order regarding the salmon fisheries for the 1978 and subsequent seasons, which, prior to our issuance of a writ of certiorari to review the case, was pending on appeal in the Court of Appeals. App. 486-490. </s> Because of the widespread defiance of the District Court's orders, this litigation has assumed unusual significance. We granted certiorari in the state and federal cases to interpret this important treaty provision and thereby to resolve the conflict between the state and federal courts regarding what, if any, right the Indians have to a share of the fish, to address the implications of international regulation of the fisheries in the area, and to remove any doubts about the federal court's power to enforce its orders. 439 U.S. 909 . </s> IV </s> The treaties secure a "right of taking fish." The pertinent articles provide: </s> "The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens." 21 </s> [443 U.S. 658, 675] </s> At the time the treaties were executed there was a great abundance of fish and a relative scarcity of people. No one had any doubt about the Indians' capacity to take as many fish as they might need. Their right to take fish could therefore be adequately protected by guaranteeing them access to usual and accustomed fishing sites which could be - and which for decades after the treaties were signed were - comfortably shared with the incoming settlers. </s> Because the sparse contemporaneous written materials refer primarily to assuring access to fishing sites "in common with all citizens of the Territory," the State of Washington and the commercial fishing associations, having all adopted the Game Department's original position, argue that it was merely access that the negotiators guaranteed. It is equally plausible to conclude, however, that the specific provision for access was intended to secure a greater right - a right to harvest a share of the runs of anadromous fish that at the time the treaties were signed were so plentiful that no one could question the Indians' capacity to take whatever quantity they needed. Indeed, a fair appraisal of the purpose of the treaty negotiations, the language of the treaties, and this Court's prior construction of the treaties, mandates that conclusion. </s> A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations. E. g., Lone Wolf v. Hitchcock, 187 U.S. 553 . When the signatory nations have not been at war and neither is the vanquished, it is reasonable to assume that they negotiated as equals at arm's length. There is no reason to doubt that this assumption applies to the treaties at issue here. See 520 F.2d, at 684. </s> Accordingly, it is the intention of the parties, and not solely that of the superior side, that must control any attempt to interpret the treaties. When Indians are involved, this Court has long given special meaning to this rule. It has held that the United States, as the party with the presumptively superior [443 U.S. 658, 676] negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side. "[T]he treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians." Jones v. Meehan, 175 U.S. 1, 11 . This rule, in fact, has thrice been explicitly relied on by the Court in broadly interpreting these very treaties in the Indians' favor. Tulee v. Washington, 315 U.S. 681 ; Seufert Bros. Co. v. United States, 249 U.S. 194 ; United States v. Winans, 198 U.S. 371 . See also Washington v. Yakima Indian Nation, 439 U.S. 463, 484 . </s> Governor Stevens and his associates were well aware of the "sense" in which the Indians were likely to view assurances regarding their fishing rights. During the negotiations, the vital importance of the fish to the Indians was repeatedly emphasized by both sides, and the Governor's promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians' assent. See supra, at 666-668. It is absolutely clear, as Governor Stevens himself said, that neither he nor the Indians intended that the latter "should be excluded from their ancient fisheries," see n. 9, supra, and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish. That each individual Indian would share an "equal opportunity" with thousands of newly arrived individual settlers is totally foreign to the spirit of the negotiations. 22 Such a "right," [443 U.S. 658, 677] along with the $207,500 paid the Indians, would hardly have been sufficient to compensate them for the millions of acres they ceded to the Territory. </s> It is true that the words "in common with" may be read either as nothing more than a guarantee that individual Indians would have the same right as individual non-Indians or as securing an interest in the fish runs themselves. It we were to construe these words by reference to 19th-century property concepts, we might accept the former interpretation, although even "learned lawyers" of the day would probably have offered differing interpretations of the three words. 23 </s> [443 U.S. 658, 678] But we think greater importance should be given to the Indians' likely understanding of the other words in the treaties and especially the reference to the "right of taking fish" - a right that had no special meaning at common law but that must have had obvious significance to the tribes relinquishing a portion of their pre-existing rights to the United States in return for this promise. This language is particularly meaningful in the context of anadromous fisheries - which were not the focus of the common law - because of the relative predictability of the "harvest." In this context, it makes sense to say that a party has a right to "take" - rather than merely the "opportunity" to try to catch - some of the large quantities of fish that will almost certainly be available at a given place at a given time. </s> This interpretation is confirmed by additional language in the treaties. The fishing clause speaks of "securing" certain fishing rights, a term the Court has previously interpreted as synonymous with "reserving" rights previously exercised. Winans, 198 U.S., at 381 . See also New York ex rel. Kennedy v. Becker, 241 U.S. 556, 563 -564. Because the Indians had always [443 U.S. 658, 679] exercised the right to meet their subsistence and commercial needs by taking fish from treaty area waters, they would be unlikely to perceive a "reservation" of that right as merely the chance, shared with millions of other citizens, occasionally to dip their nets into the territorial waters. Moreover, the phrasing of the clause quite clearly avoids placing each individual Indian on an equal footing with each individual citizen of the State. The referent of the "said Indians" who are to share the right of taking fish with "all citizens of the Territory" is not the individual Indians but the various signatory "tribes and bands of Indians" listed in the opening article of each treaty. Because it was the tribes that were given a right in common with non-Indian citizens, it is especially likely that a class right to a share of fish, rather than a personal right to attempt to land fish, was intended. </s> In our view, the purpose and language of the treaties are unambiguous; they secure the Indians' right to take a share of each run of fish that passes through tribal fishing areas. But our prior decisions provide an even more persuasive reason why this interpretation is not open to question. For notwithstanding the bitterness that this litigation has engendered, the principal issue involved is virtually a "matter decided" by our previous holdings. </s> The Court has interpreted the fishing clause in these treaties on six prior occasions. In all of these cases the Court placed a relatively broad gloss on the Indians' fishing rights and - more or less explicitly - rejected the State's "equal opportunity" approach; in the earliest and the three most recent cases, moreover, we adopted essentially the interpretation that the United States is reiterating here. </s> In United States v. Winans, supra, the respondent, having acquired title to property on the Columbia River and having obtained a license to use a "fish wheel" - a device capable of catching salmon by the ton and totally destroying a run of fish - asserted the right to exclude the Yakimas from one of their "usual and accustomed" places. The Circuit [443 U.S. 658, 680] Court for the District of Washington sustained respondent, but this Court reversed. The Court initially rejected an argument that is analogous to the "equal opportunity" claim now made by the State: </s> "[I]t was decided [below] that the Indians acquired no rights but what any inhabitant of the Territory or State would have. Indeed, acquired no rights but such as they would have without the treaty. This is certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more. . . . How the treaty in question was understood may be gathered from the circumstances. </s> "The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them - a reservation of those not granted. And the form of the instrument and its language was adapted to that purpose . . . . There was an exclusive right to fishing reserved within certain boundaries. There was a right outside of those boundaries reserved `in common with citizens of the Territory.' As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given `the right of taking fish at all usual and accustomed places,' and the right `of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for - in other [443 U.S. 658, 681] words, the Indians were given a right in the land - the right of crossing it to the river - the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty." 198 U.S., at 380 -381. </s> See also Seufert Bros., 249 U.S., at 198 , and Tulee, 315 U.S., at 684 , both of which repeated this analysis, in holding that treaty Indians had rights, "beyond those which other citizens may enjoy," to fish without paying license fees in ceded areas and even in accustomed fishing places lying outside of the lands ceded by the Indians. See n. 22, supra. </s> But even more significant than the language in Winans is its actual disposition. The Court not only upheld the Indians' right of access to respondent's private property but also ordered the Circuit Court on remand to devise some "adjustment and accommodation" that would protect them from total exclusion from the fishery. 198 U.S., at 384 . Although the accommodation it suggested by reference to the Solicitor General's brief in the case is subject to interpretation, it clearly included removal of enough of the fishing wheels to enable some fish to escape and be available to Indian fishermen upstream. Brief for United States, O. T. 1904, No. 180, pp. 54-56. In short, it assured the Indians a share of the fish. </s> In the more recent litigation over this treaty language between the Puyallup Tribe and the Washington Department of Game, 24 the Court in the context of a dispute over rights to the run of steelhead trout on the Puyallup River reaffirmed both of the holdings that may be drawn from Winans - the treaty guarantees the Indians more than simply the "equal opportunity" along with all of the citizens of the State to catch fish, and it in fact assures them some portion of each [443 U.S. 658, 682] relevant run. But the three Puyallup cases are even more explicit; they clearly establish the principle that neither party to the treaties may rely on the State's regulatory powers or on property law concepts to defeat the other's right to a "fairly apportioned" share of each covered run of harvestable anadromous fish. </s> In Puyallup I, the Court sustained the State's power to impose nondiscriminatory regulations on treaty fishermen so long as they were "necessary" for the conservation of the various species. In so holding, the Court again explicitly rejected the equal-opportunity theory. Although nontreaty fishermen might be subjected to any reasonable state fishing regulation serving any legitimate purpose, treaty fishermen are immune from all regulation save that required for conservation. 25 </s> When the Department of Game sought to impose a total ban on commercial net fishing for steelhead, the Court held in Puyallup II that such regulation was not a "reasonable and necessary conservation measure" and would deny the Indians [443 U.S. 658, 683] their "fairly apportioned" share of the Puyallup River run. 414 U.S. 44, 45 , 48. Although under the challenged regulation every individual fisherman would have had an equal opportunity to use a hook and line to land the steelhead, most of the fish would obviously have been caught by the 145,000 nontreaty licensees rather than by the handful of treaty fishermen. This Court vindicated the Indians' treaty right to "take fish" by invalidating the ban on Indian net fishing and remanding the case with instructions to the state courts to determine the portion of harvestable steelhead that should be allocated to net fishing by members of the tribe. Id., at 48-49. Even if Winans had not already done so, this unanimous holding foreclosed the basic argument that the State is now advancing. </s> On remand, the Washington state courts held that 45% of the steelhead run was allocable to commercial net fishing by the Indians. We shall later discuss how that specific percentage was determined; what is material for present purposes is the recognition, upheld by this Court in Puyallup III, that the treaty secured the Tribe's right to a substantial portion of the run, and not merely a right to compete with nontreaty fishermen on an individual basis. 26 </s> Puyallup III also made it clear that the Indians could not rely on their treaty right to exclude others from access to certain fishing sites to deprive other citizens of the State of a "fair apportionment" of the runs. For although it is clear that the Tribe may exclude non-Indians from access to fishing [443 U.S. 658, 684] within the reservation, we unequivocally rejected the Tribe's claim to an untrammeled right to take as many of the steelhead running through its reservation as it chose. In support of our holding that the State has regulatory jurisdiction over on-reservation fishing, we reiterated Mr. Justice Douglas' statement for the Court in Puyallup II that the "Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets." 414 U.S., at 49 . It is in this sense that treaty and nontreaty fishermen hold "equal" rights. For neither party may deprive the other of a "fair share" of the runs. </s> Not only all six of our cases interpreting the relevant treaty language but all federal courts that have interpreted the treaties in recent times have reached the foregoing conclusions, see Sohappy v. Smith, 302 F. Supp. 899, 908, 911 (Ore. 1969) (citing cases), as did the Washington Supreme Court itself prior to the present litigation. State v. Satiacum, 50 Wash. 2d 513, 523-524, 314 P.2d 400, 406 (1957). A like interpretation, moreover, has been followed by the Court with respect to hunting rights explicitly secured by treaty to Indians "`in common with all other persons,'" Antoine v. Washington, 420 U.S. 194, 205 -206, and to water rights that were merely implicitly secured to the Indians by treaties reserving land - treaties that the Court enforced by ordering an apportionment to the Indians of enough water to meet their subsistence and cultivation needs. Arizona v. California, 373 U.S. 546, 598 -601, following United States v. Powers, 305 U.S. 527, 528 -533; Winters v. United States, 207 U.S. 564, 576 . </s> The purport of our cases is clear. Nontreaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on their exclusive right of access to the reservations to destroy the rights of other "citizens of the Territory." Both sides have [443 U.S. 658, 685] a right, secured by treaty, to take a fair share of the available fish. That, we think, is what the parties to the treaty intended when they secured to the Indians the right of taking fish in common with other citizens. </s> V </s> We also agree with the Government that an equitable measure of the common right should initially divide the harvestable portion of each run that passes through a "usual and accustomed" place into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount. Although this method of dividing the resource, unlike the right to some division, is not mandated by our prior cases, it is consistent with the 45%-55% division arrived at by the Washington state courts, and affirmed by this Court, in Puyallup III with respect to the steelhead run on the Puyallup River. The trial court in the Puyallup litigation reached those figures essentially by starting with a 50% allocation based on the Indians' reliance on the fish for their livelihoods and then adjusting slightly downward due to other relevant factors. App. to Pet. for Cert. in Puyallup III, O. T. 1976, No. 76-423, pp. C-56 to C-57. The District Court took a similar tack in this case, i. e., by starting with a 50-50 division and adjusting slightly downward on the Indians' side when it became clear that they did not need a full 50%. 384 F. Supp., at 402, 416-417; 459 F. Supp., at 1101; 573 F.2d, at 1129. </s> The division arrived at by the District Court is also consistent with our earlier decisions concerning Indian treaty rights to scarce natural resources. In those cases, after determining that at the time of the treaties the resource involved was necessary to the Indians' welfare, the Court typically ordered a trial judge or special master, in his discretion, to devise some apportionment that assured that the Indians' reasonable livelihood needs would be met. Arizona [443 U.S. 658, 686] v. California, supra, at 600; Winters, supra. See Winans, 198 U.S., at 384 . This is precisely what the District Court did here, except that it realized that some ceiling should be placed on the Indians' apportionment to prevent their needs from exhausting the entire resource and thereby frustrating the treaty right of "all [other] citizens of the Territory." </s> Thus, it first concluded that at the time the treaties were signed, the Indians, who comprised three-fourths of the territorial population, depended heavily on anadromous fish as a source of food, commerce, and cultural cohesion. Indeed, it found that the non-Indian population depended on Indians to catch the fish that the former consumed. See supra, at 664-669, and n. 7. Only then did it determine that the Indians' present-day subsistence and commercial needs should be met, subject, of course, to the 50% ceiling. 384 F. Supp., at 342-343. </s> It bears repeating, however, that the 50% figure imposes a maximum but not a minimum allocation. As in Arizona v. California and its predecessor cases, the central principle here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood - that is to say, a moderate living. Accordingly, while the maximum possible allocation to the Indians is fixed at 50%, 27 the minimum is not; the latter [443 U.S. 658, 687] will, upon proper submissions to the District Court, be modified in response to changing circumstances. If, for example, a tribe should dwindle to just a few members, or if it should find other sources of support that lead it to abandon its fisheries, a 45% or 50% allocation of an entire run that passes through its customary fishing grounds would be manifestly inappropriate because the livelihood of the tribe under those circumstances could not reasonably require an allotment of a large number of fish. </s> Although the District Court's exercise of its discretion, as slightly modified by the Court of Appeals, see n. 18, supra, is in most respects unobjectionable, we are not satisfied that all of the adjustments it made to its division are consistent with the preceding analysis. </s> The District Court determined that the fish taken by the Indians on their reservations should not be counted against their share. It based this determination on the fact that Indians have the exclusive right under the treaties to fish on their reservations. But this fact seems to us to have no greater significance than the fact that some nontreaty fishermen may have exclusive access to fishing sites that are not "usual and accustomed" places. Shares in the fish runs should not be affected by the place where the fish are taken. Cf. Puyallup III, 433 U.S., at 173 -177. 28 We therefore disagree with the District Court's exclusion of the Indians' on-reservation catch from their portion of the runs. 29 </s> [443 U.S. 658, 688] </s> This same rationale, however, validates the Court-of-Appeals-modified equitable adjustment for fish caught outside the jurisdiction of the State by nontreaty fishermen from the State of Washington. See n. 18, supra, and accompanying text. So long as they take fish from identifiable runs that are destined for traditional tribal fishing grounds, such persons may not rely on the location of their take to justify excluding it from their share. Although it is true that the fish involved are caught in waters subject to the jurisdiction of the United States, rather than of the State, see 16 U.S.C. 1811, 1812, the persons catching them are nonetheless "citizens of the Territory" and as such the beneficiaries of the Indians' reciprocal grant of land in the treaties as well as the persons expressly named in the treaties as sharing fishing rights with the Indians. Accordingly, they may justifiably be treated differently from nontreaty fishermen who are not citizens of Washington. The statutory provisions just cited are therefore important in this context only because they clearly place a responsibility on the United States, rather than the State, to police the take of fish in the relevant waters by Washington citizens insofar as is necessary to assure compliance with the treaties. </s> On the other hand, as long as there are enough fish to satisfy the Indians' ceremonial and subsistence needs, we see no justification for the District Court's exclusion from the treaty share of fish caught for these purposes. We need not now decide whether priority for such uses would be required in a period of short supply in order to carry out the purposes of the treaty. See 384 F. Supp., at 343. For present purposes, we merely hold that the total catch - rather than the commercial catch - is the measure of each party's right. 30 </s> [443 U.S. 658, 689] </s> Accordingly, any fish (1) taken in Washington waters or in United States waters off the coast of Washington, (2) taken from runs of fish that pass through the Indians' usual and accustomed fishing grounds, and (3) taken by either members of the Indian tribes that are parties to this litigation, on the one hand, or by non-Indian citizens of Washington, on the other hand, shall count against that party's respective share of the fish. </s> VI </s> Regardless of the Indians' other fishing rights under the treaties, the State argues that an agreement between Canada and the United States pre-empts their rights with respect to the sockeye and pink salmon runs on the Fraser River. </s> In 1930, the United States and Canada agreed that the catch of Fraser River salmon should be equally divided between Canadian and American fishermen. Convention of May 26, 1930, 50 Stat. 1355, as amended by 1957. 8 U.S. T. 1058. To implement this agreement, the two Governments established the International Pacific Salmon Fisheries Commission (IPSFC). Each year that Commission proposes regulations to govern the time, manner, and number of the catch by the fishermen of the two countries; those regulations become effective upon approval of both countries. </s> In the United States, pursuant to statute and Presidential designation, enforcement of those regulations is vested in the [443 U.S. 658, 690] National Marine Fisheries Service, which, in turn, may authorize the State of Washington to act as the enforcing agent. Sockeye Salmon or Pink Salmon Fishing Act of 1947, 61 Stat. 511, as amended, 16 U.S.C. 776 et seq. (hereinafter Sockeye Act). For many years Washington has accepted this responsibility and enacted IPSFC regulations into state statutory law. </s> The Fraser River salmon run passes through certain "usual and accustomed" places of treaty tribes. The Indians have therefore claimed a share of these runs. Consistently with its basic interpretation of the Indian treaties, the District Court in its original decision held that the tribes are entitled to up to one-half of the American share of any run that passes through their "usual and accustomed" places. To implement that holding, the District Court also entered an order authorizing the use by Indians of certain gear prohibited by IPSFC regulations then in force. 384 F. Supp., at 392-393, 411. The Court of Appeals affirmed, 520 F.2d, at 689-690, and we denied certiorari. 423 U.S. 1086 . </s> In later proceedings commenced in 1975, the State of Washington contended in the District Court that any Indian rights to Fraser River salmon were extinguished either implicitly by the later agreement with Canada or more directly by the IPSFC regulations promulgated pursuant to those agreements insofar as they are inconsistent with the District Court's order. The State's claim was rejected by the District Court and the Court of Appeals. 459 F. Supp., at 1050-1056; 573 F.2d, at 1120-1121. </s> First, we agree with the Court of Appeals that the Convention itself does not implicitly extinguish the Indians' treaty rights. Absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights, e. g., Menominee Tribe v. United States, 391 U.S. 404 , and there is no reason to do so here. Indeed, the Canadian Government has long exempted Canadian Indians from regulations [443 U.S. 658, 691] promulgated under the Convention and afforded them special fishing rights. </s> We also agree with the United States that the conflict between the District Court's order and IPSFC does not present us with a justiciable issue. The initial conflict occasioned by the regulations for the 1975 season has been mooted by the passage of time, and there is little prospect that a similar conflict will revive and yet evade review. See DeFunis v. Odegaard, 416 U.S. 312, 316 . Since 1975, the United States, in order to protect the Indian rights, has exercised its power under Art. VI of the Convention and refused to give the necessary approval to those portions of the IPSFC regulations that affected Indian fishing rights. Those regulations have accordingly not gone into effect in the United States. The Indians' fishing rights and responsibilities have instead been the subject of separate regulations promulgated by the Interior Department, under its general Indian powers, 25 U.S.C. 2, 9; see 25 CFR 256.11 et seq. (1978); 50 CFR 371.1 et seq. (1978); 25 CFR 256.11 et seq. (1979), and enforced by the National Marine Fisheries Service directly, rather than by delegation to the State. The District Court's order is fully consistent with those regulations. 31 To the extent that any Washington State statute imposes any conflicting obligations, the statute is without effect under the Sockeye Act and [443 U.S. 658, 692] must give way to the federal treaties, regulations, and decrees. E. g., Missouri v. Holland, 252 U.S. 416, 432 . </s> VII </s> In addition to their challenges to the District Court's basic construction of the treaties, and to the scope of its allocation of fish to treaty fishermen, the State and the commercial fishing associations have advanced two objections to various remedial orders entered by the District Court. 32 It is claimed that [443 U.S. 658, 693] the District Court has ordered a state agency to take action that it has no authority to take as a matter of state law and that its own assumption of the authority to manage the fisheries in the State after the state agencies refused or were unable to do so was unlawful. 33 </s> These objections are difficult to evaluate in view of the representations to this Court by the Attorney General of the State that definitive resolution of the basic federal question of construction of the treaties will both remove any state-law impediment to enforcement of the State's obligations under the treaties, 34 and enable the State and Fisheries to carry [443 U.S. 658, 694] out those obligations. 35 Once the state agencies comply, of course, there would be no issue relating to federal authority to order them to do so or any need for the District Court to continue its own direct supervision of enforcement efforts. </s> The representations of the Attorney General are not binding on the courts and legislature of the State, although we assume they are authoritative within its executive branch. Moreover, the State continues to argue that the District Court exceeded its authority when it assumed control of the fisheries in the State, and the commercial fishing groups [443 U.S. 658, 695] continue to argue that the District Court may not order the state agencies to comply with its orders when they have no state-law authority to do so. Accordingly, although adherence to the Attorney General's representations by the executive, legislative, and judicial officials in the State would moot these two issues, a brief discussion should foreclose the possibility that they will not be respected. State-law prohibition against compliance with the District Court's decree cannot survive the command of the Supremacy Clause of the United States Constitution. Cooper v. Aaron, 358 U.S. 1 ; Ableman v. Booth, 21 How. 506. It is also clear that Game and Fisheries, as parties to this litigation, may be ordered to prepare a set of rules that will implement the Court's interpretation of the rights of the parties even if state law withholds from them the power to do so. E. g., North Carolina Board of Education v. Swann, 402 U.S. 43 ; Griffin v. County School Board, 377 U.S. 218 ; Tacoma v. Taxpayers, 357 U.S. 320 . Once again the answer to a question raised by this litigation is largely dictated by our Puyallup trilogy. There, this Court mandated that state officers make precisely the same type of allocation of fish as the District Court ordered in this case. See Puyallup III, 433 U.S., at 177 . </s> Whether Game and Fisheries may be ordered actually to promulgate regulations having effect as a matter of state law may well be doubtful. But the District Court may prescind that problem by assuming direct supervision of the fisheries if state recalcitrance or state-law barriers should be continued. It is therefore absurd to argue, as do the fishing associations, both that the state agencies may not be ordered to implement the decree and also that the District Court may not itself issue detailed remedial orders as a substitute for state supervision. The federal court unquestionably has the power to enter the various orders that state official and private parties have chosen to ignore, and even to displace local enforcement of those orders if necessary to remedy the violations of [443 U.S. 658, 696] federal law found by the court. E. g., Hutto v. Finney, 437 U.S. 678 ; Milliken v. Bradley, 433 U.S. 267, 280 -281, 290; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 . Even if those orders may have been erroneous in some respects, all parties have an unequivocal obligation to obey them while they remain in effect. </s> In short, we trust that the spirit of cooperation motivating the Attorney General's representation will be confirmed by the conduct of state officials. But if it is not, the District Court has the power to undertake the necessary remedial steps and to enlist the aid of the appropriate federal law enforcement agents in carrying out those steps. Moreover, the comments by the Court of Appeals strongly imply that it is prepared to uphold the use of stern measures to require respect for federal-court orders. 36 </s> The judgments of the Court of Appeals for the Ninth Circuit and the Supreme Court of the State of Washington are vacated and the respective causes are remanded to those courts for further proceedings not inconsistent with this opinion, except that the judgment in United States v. Washington, 573 F.2d 1118 (the International Fisheries case) is affirmed. </s> So ordered. </s> Footnotes [Footnote 1 By three earlier treaties the United States had extinguished the conflicting claims of Spain in 1820 and Russia in 1824, 8 Stat. 252, 302, and Great Britain in 1846, 9 Stat. 869. In 1848, Congress established the Oregon Territory, 9 Stat. 323; that statute provided that nothing contained therein "shall be construed to impair the rights of person or property now pertaining to the Indians and said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians." In 1850, Congress authorized the negotiation of treaties to extinguish the Indian claims to land lying west of the Cascade Mountains, 9 Stat. 437. In 1853, the Washington Territory, which includes the present State of Washington, was organized out of the Oregon Territory. Ch. 90, 10 Stat. 172. </s> [Footnote 2 Treaty of Medicine Creek (10 Stat. 1132): Treaty of Point Elliott (12 Stat. 927); Treaty of Point No Point (12 Stat. 933); Treaty of Neah Bay (12 Stat. 939); Treaty with the Yakamas (12 Stat. 951); and Treaty of Olympia (12 Stat. 971). The parties to the treaties and to this litigation include these Indian tribes: Hoh; Lower Elwha Band of Clallam Indians; Lummi; Makah; Muckleshoot; Nisqually; Nooksack; Port Gamble Band of Clallam Indians; Puyallup; Quileute; Quinault; Sauk-Suiattle; Skokomish; Squaxin Island; Stillaguamish; Suquamish; Swinomish; Tulalip; Upper Skagit; and Yakima Nation. 384 F. Supp. 312, 349; 459 F. Supp. 1020, 1028. </s> [Footnote 3 For example, pink and sockeye salmon hatched in Canada's Fraser River pass through the Strait of Juan de Fuca in the State of Washington, swim out into international waters on the open sea, and return through the strait to the river, passing on the way the usual and accustomed fishing grounds of the Makah Indian Tribe once again in Washington. 384 F. Supp., at 392. During much of the return run during which they pass through international, state, and Canadian waters, the fish are in optimum harvestable condition. See also id., at 386-387, regarding the Puget Sound and Olympic Peninsula origin chinook salmon that pass through international waters, as well as those of Washington, Canada, and Alaska. </s> [Footnote 4 Although in terms of the number and weight of the fish involved, the commercial salmon catch is far more substantial than the recreational steelhead catch, the latter apparently provides the State with more revenue than the former, involves more people, and has accordingly been a more controversial political issue within the State. See id., at 399. </s> [Footnote 5 Indeed, the record shows that the territorial officials who negotiated the treaties on behalf of the United States took the initiative in aggregating certain loose bands into designated tribes and even appointed many of the chiefs who signed the treaties. Id., at 354-355, 366. </s> [Footnote 6 "From the earliest known times, up to and beyond the time of the . . . treaties, the Indians comprising each of the treating tribes and bands were primarily a fishing, hunting and gathering people dependent almost entirely upon the natural animal and vegetative resources of the region for their subsistence and culture. They were heavily dependent upon anadromous fish for their subsistence and for trade with other tribes and later with the settlers. Anadromous fish was the great staple of their diet and livelihood. They cured and dried large quantities for year around use, both for themselves and for others through sale, trade, barter and employment." Id., at 406. See also 520 F.2d 676, 682 ("The Indians west of the Cascade Mountains were known as `fish-eaters'; their diets, social customs, and religious practices centered on the capture of fish"). </s> [Footnote 7 "At the time of the treaties, trade was carried on among the Indian groups throughout a wide geographic area. Fish was a basic element of the trade. There is some evidence that the volume of this intra-tribal trade was substantial, but it is not possible to compare it with the volume of present day commercial trading in salmon. Such trading was, however, important to the Indians at the time of the treaties. In addition to potlatching, which is a system of exchange between communities in a social context often typified by competitive gifting, there was a considerable amount of outright sale and trade beyond the local community and sometimes over great distances. In the decade immediately preceding the treaties, Indian fishing increased in order to accommodate increased demand for local non-Indian consumption and for export, as well as to provide money for purchase of introduced commodities and to obtain substitute non-Indian goods for native products which were no longer available because of the non-Indian movement into the area. Those involved in negotiating the treaties recognized the contribution that Indian fishermen made to the territorial economy because Indians caught most of the non-Indians' fish for them, plus clams and oysters." 384 F. Supp., at [443 U.S. 658, 666] 351-352 (citations to record omitted). See also id., at 364 (Makah Tribe "maintained from time immemorial a thriving economy based on commerce" in "marine resources"). </s> [Footnote 8 In late December 1854, one territorial official wrote the Commissioner of Indian Affairs that "[t]he Indians on Puget Sound . . . form a very considerable portion of the trade of the Sound. . . . They catch most of our fish, supplying not only our people with clams and oysters, but salmon to those who cure and export it." App. 329. </s> [Footnote 9 Governor Stevens in discussing the policy that he intended to pursue during negotiations with the tribes, in a letter dated September 16, 1854, to the Commissioner of Indian Affairs, said: "The subject of the right of fisheries is one upon which legislation is demanded. It never could have been the intention of Congress that Indians should be excluded from their ancient fisheries; but, as no condition to this effect was inserted in the donation act, the question has been raised whether persons taking claims, including such fisheries, do not possess the right of monopolizing. It is therefore desirable that this question should be set at rest by law." Id., at 327. See also id., at 332. The Governor's concern with protecting the Indians' continued exploitation of their accustomed fisheries was reflected in his assurances to the Indians during the treaty negotiations that under the treaties they would be able to go outside of reservation areas for the purpose of [443 U.S. 658, 667] harvesting fish. His statement at the signing of the Treaty of Point Elliott on Monday, January 22, 1855, was characteristic: "We want to place you in homes where you can cultivate the soil, using potatoes and other articles of food, and where you will be able to pass in canoes over the waters of the Sound and catch fish and back to the mountains to get roots and berries." Id., at 329-330. </s> [Footnote 10 Indeed, the translation of the English words was difficult because the interpreter used a "Chinook jargon" to explain treaty terms, and that jargon not only was imperfectly (and often not) understood by many of the Indians but also was composed of a simple 300-word commercial vocabulary that did not include words corresponding to many of the treaty terms. 384 F. Supp., at 330, 355-356, 364, 381; 520 F.2d, at 683. </s> [Footnote 11 For example, Governor Stevens made the following statement to the Indians gathered at Point-No-Point to negotiate the treaty bearing that name: "Are you not my children and also children of the Great Father? What will I not do for my children, and what will you not for yours? Would you not die for them? This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? . . . This paper secures your fish? Does not a father give food to his children?" App. 330-331. </s> [Footnote 12 "There is nothing in the written records of the treaty councils or other accounts of discussions with the Indians to indicate that the Indians were told that their existing fishing activities or tribal control over them would in any way be restricted or impaired by the treaty. The most that could be implied from the treaty context is that the Indians may have been told or understood that non-Indians would be allowed to take fish at the Indian fishing locations along with the Indians." 384 F. Supp., at 357. </s> [Footnote 13 "The non-Indian commercial fishing industry did not fully develop in the case area until after the invention and perfection of the canning process. The first salmon cannery in Puget Sound began in 1877 with a small operation at Mukilteo. Large-scale development of the commercial fisheries [443 U.S. 658, 669] did not commence in Puget Sound until the mid-1890's. The large-scale development of the commercial fishing industry in the last decades of the Nineteenth Century brought about the need for regulation of fish harvests." Id., at 352 (record citations omitted). See also id., at 406. </s> [Footnote 14 The impact of illegal regulation, see Tulee v. Washington, 315 U.S. 681 , and of illegal exclusionary tactics by non-Indians, see United States v. Winans, 198 U.S. 371 , in large measure accounts for the decline of the Indian fisheries during this century and renders that decline irrelevant to a determination of the fishing rights the Indians assumed they were securing by initialing the treaties in the middle of the last century. </s> [Footnote 15 The "harvestable" amount of fish is determined by subtracting from the total number of fish in each run the number that must be allowed to escape for conservation purposes. The "case area" was defined by the District Court as "that portion of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, and includes the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the offshore waters adjacent to those areas." 384 F. Supp., at 328. </s> [Footnote 16 A factual dispute exists on the question of what percentage of the fish in the case area actually passes through Indian fishing areas and is therefore subject to the District Court's allocations. In the absence of any relevant findings by the courts below, we are unable to express any view on the matter. </s> [Footnote 17 Moreover, fish caught by individual Indians at off-reservation locations that are not "usual and accustomed" sites, were treated as if they had been caught by nontreaty fishermen. 384 F. Supp., at 410. </s> [Footnote 18 The Court of Appeals held that fish caught by nonresidents of Washington should be eliminated from the equitable adjustment for fish caught beyond the State's jurisdiction. 520 F.2d, at 689. </s> [Footnote 19 Despite our earlier denial of certiorari on the treaty interpretation issue, we decline the Government's invitation to treat the matter as having been finally adjudicated. Our earlier denial came at an interlocutory stage in the proceedings - the District Court has retained continuing enforcement jurisdiction over the case - so that we certainly are not required to treat the earlier disposition as final for our purposes. Reece v. Georgia, 350 U.S. 85, 87 . Moreover, the reason for our recent grant of certiorari on the question remains because the state courts are - and, at least since the State Supreme Court's decision in Department of Game v. Puyallup Tribe, 86 Wash. 2d 664, 548 P.2d 1058 (1976), have been - on record as interpreting the treaties involved differently from the federal courts. Accordingly, there is strong reason not to treat it as final as a discretionary matter. </s> [Footnote 20 The Washington Supreme Court held that the treaties would violate equal protection principles if they provided fishing rights to Indians that were not also available to non-Indians. The simplest answer to this argument is that this Court has already held that these treaties confer enforceable special benefits on signatory Indian tribes, e. g., Tulee v. Washington, 315 U.S. 681 ; United States v. Winans, 198 U.S. 317 , and has repeatedly held that the peculiar semisovereign and constitutionally recognized status of Indians justifies special treatment on their behalf when rationally related to the Government's "unique obligation toward the Indians." Morton v. Mancari, 417 U.S. 535, 555 . See United States v. Antelope, 430 U.S. 641 ; Antoine v. Washington, 420 U.S. 194 . See also Fishing Vessel Assn. v. Tollefson, 89 Wash. 2d 276, 287-288, 571 P.2d 1373, 1379-1380 (1977) (Utter, J., dissenting). </s> [Footnote 21 The language is quoted from Art. III of the Treaty of Medicine Creek, 10 Stat. 1133. Identical, or almost identical, language is included in each of the other treaties. </s> [Footnote 22 The State characterizes its interpretation of the treaty language as assuring Indians and non-Indians an "equal opportunity" to take fish from the State's waters. This appellation is misleading. In the first place, even the State recognizes that the treaties provide Indians with certain rights - i. e., the right to fish without a license and to cross private lands - that non-Indians do not have. See Tulee v. Washington, 315 U.S. 681 ; Seufert Bros. Co. v. United States, 249 U.S. 194 ; United States v. Winans, 198 U.S. 371 . See also Puyallup Tribe v. Washington Game [443 U.S. 658, 677] Dept., 433 U.S. 165 . Whatever opportunities the treaties assure Indians with respect to fish are admittedly not "equal" to, but are to some extent greater than, those afforded other citizens. It is therefore simply erroneous to suggest that the treaty language "confers upon non-Indians precisely the same right to fish that it confers upon Indians." POWELL, J., dissenting, post, at 698. Moreover, in light of the far superior numbers, capital resources, and technology of the non-Indians, the concept of the Indians' "equal opportunity" to take advantage of a scarce resource is likely in practice to mean that the Indians' "right of taking fish" will net them virtually no catch at all. For the "opportunity" is at best theoretical. Indeed, in 1974, before the District Court's injunction took effect, and while the Indians were still operating under the "equal opportunity" doctrine, their take amounted to approximately 2% of the total harvest of salmon and trout in the treaty area. 459 F. Supp., at 1032. </s> [Footnote 23 The State argues that at common law a "common fishery" was merely a nonexclusive right of access, see 3 J. Kent, Commentaries 412 (5th ed. 1844), and that the right of a fishery was appurtenant to specific parcels of real property. The State does not suggest, however, that these concepts were understood by, or explained to, the Indians. Indeed, there is no evidence that Governor Stevens understood them, although one of his advisers, George Gibbs, was a lawyer. But even if we indulge in the highly dubious assumption that Gibbs was learned in the intricacies of water law, that he incorporated them in the treaties, and that he explained them fully to the Indians, the treaty language would still be subject to the different interpretations presented by the parties to this litigation. For in addition to "common fisheries," the "in common with" language was used in two other relevant senses [443 U.S. 658, 678] during the period. First, a "common of fishery" meant a limited right, acquired from the previously exclusive owner of certain fishing rights (in this case the Indians), "of taking fish in common with certain others in waters flowing through [the grantor's] land." J. Gould, Laws of Waters 183 (3d ed. 1900) (emphasis added); see 3 Kent, supra, at 410. Under that understanding of the language, it would hardly make sense that the Indians effectively relinquished all of their fishing rights by granting a merely nonexclusive right. Even more to the point, the United States had previously used the "in common with" language in two treaties with Britain, including one signed in 1854, that dealt with fishing rights in certain waters adjoining the United States and Canada. Treaty of Oct. 20, 1818, 8 Stat. 248; Treaty of June 5, 1854, 10 Stat. 1089. As interpreted by the Department of State during the 19th century, these treaties gave each signatory country an "equal" and apportionable "share" of the take of fish in the treaty areas. See H. R. Ex. Doc. No. 84, 46th Cong., 2d Sess., 7 (1880); 5 American State Papers (For. Rel.) 528-529 (1823); J. Q. Adams, The Duplicate Letters, The Fisheries and the Mississippi 184-185 (1822). </s> [Footnote 24 Puyallup Tribe v. Washington Game Dept., 391 U.S. 392 (Puyallup I); Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (Puyallup II); and Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (Puyallup III). </s> [Footnote 25 Mr. Justice Douglas wrote for the Court: "The right to fish `at all usual and accustomed' places may, of course, not be qualified by the State . . . . But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians." 391 U.S., at 398 . In describing the "appropriate standards" referred to, Mr. Justice Douglas continued: "As to a `regulation' concerning the time and manner of fishing . . ., the power of the State [is] measured by whether [the regulation is] `necessary for the conservation of fish.' [Tulee,] 315 U.S., at 684 . "The measure of the legal propriety of those kinds of conservation measures is therefore distinct from the federal constitutional standard concerning the scope of the police power of a State. See Ferguson v. Skrupa, 372 U.S. 726 . . . ." Id., at 402 n. 14. See also Antoine v. Washington, 420 U.S., at 207 -208; Tulee, 315 U.S., at 684 ; Winans, 198 U.S., at 384 ; Ward v. Race Horse, 163 U.S. 504 . </s> [Footnote 26 Although some members of the Washington Supreme Court in their opinions in Puyallup III expressed the view that the treaties could not be interpreted as affording treaty fishermen an allocable share of the fish, Department of Game v. Puyallup Tribe, 86 Wash. 2d, at 674-681, 548 P.2d, at 1066-1070; see id., at 690-698, 548 P.2d, at 1075-1080 (Rosellini, J., concurring); but see id., at 688-690, 548 P.2d, at 1074-1075 (Stafford, C. J., concurring in result), they recognized that any other interpretation would be inconsistent with "the express language on the face of [this Court's decision in] Puyallup II . . . ." </s> [Footnote 27 Because the 50% figure is only a ceiling, it is not correct to characterize our holding "as guaranteeing the Indians a specified percentage" of the fish. See POWELL, J., dissenting, post, at 697. The logic of the 50% ceiling is manifest. For an equal division - especially between parties who presumptively treated with each other as equals - is suggested, if not necessarily dictated, by the word "common" as it appears in the treaties. Since the days of Solomon, such a division has been accepted as a fair apportionment of a common asset, and Anglo-American common law has presumed that division when, as here, no other percentage is suggested by the language of the agreement or the surrounding circumstances. E. g., 2 American Law of Property 6.5, p. 19 (A. Casner ed. 1952); E. Hopkins, Handbook on the Law of Real Property 209, p. 336 (1896). </s> [Footnote 28 This Court's decision in Puyallup III, which approved state regulation of on-reservation fishing in the interest of conservation, was issued after the District Court excluded the Indians' on-reservation take and the Court of Appeals affirmed. See 520 F.2d, at 690. </s> [Footnote 29 A like reasoning requires the fish taken by treaty fishermen off the reservations and at locations other than "usual and accustomed" sites, see n. 17, supra, to be counted as part of the Indians' share. Of course, the District Court, in its discretion, may determine that so few fish fit into this, or any other, category (e. g., "take-home" fish caught by nontreaty commercial fishermen for personal use) that accounting for them [443 U.S. 658, 688] individually is unnecessary, and that an estimated figure may be relied on in making the annual computation. Indeed, if the amount is truly de minimis, no accounting at all may be required. </s> [Footnote 30 The Government suggests that the District Court's exclusion of the "take-home" catch of nontreaty fishermen from the nontreaty share [443 U.S. 658, 689] makes up for any losses to those fishermen occasioned by the exclusion of the Indians' ceremonial and subsistence take. We see nothing in the District Court's findings to verify this allegation, see 384 F. Supp., at 343, although the District Court may wish to address the issue in this light on remand. Although there is some discussion in the briefs concerning whether the treaties give Indians the same right to take hatchery-bred fish as they do to take native fish, the District Court has not yet reached a final decision on this issue, see 459 F. Supp., at 1072-1085, and it is not therefore fairly subsumed within our grant of certiorari. See Puyallup III, 433 U.S., at 177 n. 17. </s> [Footnote 31 Although the IPSFC has refused to accede to the suggestions of the United States that special regulations be promulgated to cover the Indian fisheries, we are informed by the Solicitor General that the Canadian Government has no objection to those suggestions, has unilaterally implemented similar rules on behalf of its own Indians, and has expressed no dissatisfaction with the unilateral actions taken by the United States in this regard. Brief for United States 40 n. 26. Because the Department of the Interior regulations assure that no disproportion will occur, the equitable adjustment ordered by the District Court to cover the possibility that IPSFC regulations would result in a disproportionate nontreaty take will not be effectuated. We accordingly have no issue before us concerning the validity of that adjustment. </s> [Footnote 32 The associations advance a third objection as well - that the District Court had no power to enjoin individual nontreaty fishermen, who were not parties to its decisions, from violating the allocations that it has ordered. The reason this issue has arisen is that state officials were either unwilling or unable to enforce the District Court's orders against nontreaty fishermen by way of state regulations and state law enforcement efforts. Accordingly, nontreaty fishermen were openly violating Indian fishing rights, and, in order to give federal law enforcement officials the power via contempt to end those violations, the District Court was forced to enjoin them. 459 F. Supp., at 1043, 1098-1099, 1113-1117. The commercial fishing organizations, on behalf of their individual members, argue that they should not be bound by these orders because they were not parties to (although the associations all did participate as amici curiae in) the proceedings that led to their issuance. If all state officials stand by the Attorney General's representations that the State will implement the decision of this Court, see nn. 34 and 35, infra, this issue will be rendered moot because the District Court no longer will be forced to enforce its own decisions. Nonetheless, the issue is still live since state implementation efforts are now at a standstill and the orders are still in effect. Accordingly, we must decide it. In our view, the commercial fishing associations and their members are probably subject to injunction under either the rule that nonparties who interfere with the implementation of court orders establishing public rights may be enjoined, e. g., United States v. Hall, 472 F.2d 261 (CA5 1972), cited approvingly in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180 , or the rule that a court possessed of the res in a proceeding in rem, such as one to apportion a fishery, may enjoin those who would interfere with that custody. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641 . But in any case, these individuals and groups are citizens of the State of Washington, which was a party to the relevant proceedings, and "they, in their common public rights as citizens of the State, were represented by [443 U.S. 658, 693] the State in those proceedings, and, like it, were bound by the judgment." Tacoma v. Taxpayers, 357 U.S. 320, 340 -341. Moreover, a court clearly may order them to obey that judgment. See Golden State Bottling, supra, at 179-180. </s> [Footnote 33 The State has also argued that absent congressional legislation the treaties involved here are not enforceable. This argument flies directly in the face of Art. XIII of the treaties which states that they "shall be obligatory on the contracting parties as soon as [they are] ratified by the President and Senate of the United States." Moreover, the argument was implicitly rejected in Winans and our ensuing decisions regarding these treaties, all of which assumed that the treaties are self-enforcing. E. g., Puyallup I, 391 U.S., at 397 -398. Significantly, Congress thrice rejected efforts in the early 1960's to terminate the Indians' fishing rights under these treaties. See S. J. Res. 170 and 171, 88th Cong., 2d Sess. (1964); H. J. Res. 48, 88th Cong., 1st Sess. (1963); H. J. Res. 698, 87th Cong., 2d Sess. (1962). </s> [Footnote 34 In his brief, the Attorney General represented: "If this Court now concludes that Indian treaty fishermen and all other fishermen are not members of the same class with respect to an allocation of fishery, it will thereby lay the foundation for the validity under state law of a separate classification of treaty Indian fishermen for the purpose of allocation. We would respectfully submit that if the Court rejects our earlier argument and finds that treaty Indian fishermen are a special class for allocation purposes, such a conclusion would remove the impediment found by the Washington Supreme Court to the exercise of necessary regulatory power by the Department of Fisheries to allocate between Indian and non-Indian fishermen. . . . . . "Fisheries will be able to comply with the Court's decision in this [443 U.S. 658, 694] case even if it requires some type of allocation of the fishery." Brief for State of Washington 99. See also Department of Game v. Puyallup Tribe, 86 Wash. 2d 664, 681, 684-688, 548 P.2d 1058, 1070, 1072-1074 (1976), in which the Washington Supreme Court held that the Department of Game had authority to allocate a certain portion of the steelhead trout run on the Puyallup River to treaty fishermen. </s> [Footnote 35 According to the Attorney General: "The State of Washington and its Department of Fisheries cannot emphasize too strongly that they do not propose to inhibit the enforcement of proper federal court orders. . . . . . . . . "Whatever the decision of this Court, the state will implement it. The state believes that after a decision by this Court it will be in a position to comply with District Court orders, if the same are necessary to comply with this Court's decision. We do not believe the state courts could or would take a different point of view: We are confident that they will accede to this Court's interpretation of the treaties in the future just as they have in the past, as this Court expressly found in Puyallup III, [433 U.S.,] at 177." Brief for State of Washington 95, 96. We note the omission of the same firm representation on behalf of the Game Department. Although the history of that agency is not nearly as favorable as that of Fisheries with respect to attempting to comply with the District Court's order, e. g., 384 F. Supp., at 395, 398; 459 F. Supp., at 1043, 1045, 1099, we assume that this omission stems from the fact that only Fisheries was named as a party in the litigation in the state courts regarding the state agencies' authority to comply with the District Court's order. See 88 Wash. 2d, at 679, 565 P.2d, at 1152. See also Department of Game v. Puyallup Tribe, discussed in n. 34, supra. </s> [Footnote 36 "The state's extraordinary machinations in resisting the 1974. decree have forced the district court to take over a large share of the management of the state's fishery in order to enforce its decrees. Except for some desegregation cases . . ., the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century. The challenged orders in this appeal must be reviewed by this court in the context of events forced by litigants who offered the court no reasonable choice." 573 F.2d 1123, 1126 (CA9 1978). </s> MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST join, dissenting in part. </s> I join Parts I-III of the Court's opinion. I am not in agreement, however, with the Court's interpretation of the treaties [443 U.S. 658, 697] negotiated in 1854 and 1855 with the Indians of the Washington Territory. The Court's opinion, as I read it, construes the treaties' provision "of taking fish . . . in common" as guaranteeing the Indians a specified percentage of the runs of the anadromous fish passing land upon which the Indians traditionally have fished. Indeed, it takes as a starting point for determining fishing rights an equal division of these fish between Indians and non-Indians. Ante, at 685 et seq. As I do not believe that the language and history of the treaties can be construed to support the Court's interpretation, I dissent. </s> I </s> At issue in these cases is the meaning of language found in six similar Indian treaties negotiated and signed in 1854 and 1855. 1 Each of the treaties provides substantially that "[t]he right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing." 2 The question before us is whether this "common" fishing right is a right only of access to usual and accustomed fishing sites for the purpose of fishing there, or includes the greater right to exclude others from taking a particular portion of the fish that pass through the sites. As the Court observes, at the time the treaties were signed there was no need to address this question, for the surfeit of fish made lack of access to fishing areas the only constraint upon supply. Nonetheless, I believe that the compelling inference to be drawn from the language and history of the treaties is that the Indians sought and retained only the right to go to [443 U.S. 658, 698] their accustomed fishing places and there to fish along with non-Indians. In addition, the Indians retained the exclusive right to take fish on their reservations, a right not involved in this litigation. In short, they have a right of access to fish. </s> Nothing in the language of the treaties indicates that any party understood that constraints would be placed on the amount of fish that anyone could take, or that the Indians would be guaranteed a percentage of the catch. Quite to the contrary, the language confers upon non-Indians precisely the same right to fish that it confers upon Indians, even in those areas where the Indians traditionally had fished. United States v. Winans, 198 U.S. 371 (1905). As it cannot be argued that Congress intended to guarantee non-Indians any specified percentage of the available fish, there is neither force nor logic to the argument that the same language - the "right of taking fish" - does guarantee such a percentage to Indians. </s> This conclusion is confirmed by the language used in the treaty negotiated with the Yakima Tribe, which explicitly includes what apparently is implicit in each of the treaties: the Indians' right to take fish on their reservations is exclusive. Thus, the Yakima Treaty provides that "[t]he exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory. . . ." 12 Stat. 953. There is no reason apparent from the language used in the treaties why the "right of taking fish" should mean one thing for purposes of the exclusive right of reservation fishing and quite another for purposes of the "common" right of fishing at usual and accustomed places. Since the Court interprets the right of taking fish in common to be an entitlement to half of the entire catch taken from fisheries passing the Indians' traditional fishing grounds, it therefore should follow that the [443 U.S. 658, 699] Court would interpret the exclusive right of taking fish to be an entitlement to all of the fish taken from fisheries passing the Indians' reservations. But the Court apparently concedes that this exclusive right is not of such Draconian proportions. Indeed, the Court would reduce the Indians' 50% portion by those fish caught on the reservation. The more reasonable conclusion, therefore, is that when the Indians and Governor Stevens agreed upon a "right of taking fish," they understood this right to be one of access to fish - exclusive access with respect to fishing places on the reservation, and common access with respect to fishing places off the reservation. 3 </s> In addition to the language of the treaties, the historical setting in which they were negotiated supports the inference that the fishing rights secured for the Indians were rights of access alone. The primary purpose of the six treaties negotiated by Governor Stevens was to resolve growing disputes between the settlers claiming title to land in the Washington Territory under the Land Donation Act of 1850, 9 Stat. 437, and the Indians who had occupied the land for generations. Under the bargain struck in the treaties, the Indians ceded their claims to vast tracts of land, retaining only certain specified areas as reservations, where they would have exclusive rights of possession and use. In exchange, the Indian tribes were given substantial sums of money and were promised various forms of aid. See, e. g., Treaty of Medicine Creek, 10 Stat. 1132. By thus separating the Indians from the settlers it was hoped that friction could be minimized. [443 U.S. 658, 700] </s> The negotiators apparently realized, however, that restricting the Indians to relatively small tracts of land might interfere with their securing food. See letter of George Gibbs to Captain M'Clellan, App. 326 ("[The Indians] require the liberty of motion for the purpose of seeking, in their proper season, roots, berries, and fish"). This necessary "liberty of motion" was jeopardized by the title claims of the settlers whose land abutted - or would abut - the waterways from which fish traditionally had been caught. Thus, in Governor Stevens' report to the Commissioner of Indian Affairs, he noted the tension between the land rights afforded settlers under the 1850 Land Donation Act and the Indians' need to have some access to the fisheries. Although he expressed the view that "[i]t never could have been the intention of Congress that Indians should be excluded from their ancient fisheries," he noted that "no condition to this effect was inserted in the donation act," and therefore recommended the question "should be set at rest by law." Report of Governor Stevens to the Commissioner of Indian Affairs, App. 327. Viewed within this historical context, the common fishing right reserved to the Indians by the treaties of 1854 and 1855 could only have been the right, over and above their exclusive fishing right on their reservations, to roam off the reservations in order to reach fish at the locations traditionally used by the Indians for this purpose. On the other hand, there is no historical indication that any of the parties to the treaties understood that the Indians would be specifically guaranteed some set portion of the fisheries to which they traditionally had had access. </s> II </s> Prior decisions of this Court have prevented the dilution of these treaty rights, but none has addressed the issue now before us. I read these decisions as supporting the interpretation set forth above. This is particularly true of United States v. Winans, supra, the case most directly relevant. In [443 U.S. 658, 701] that case a settler had constructed several fish wheels in the Columbia River. These fish wheels were built at locations where the Indians traditionally had fished, and "`necessitate[d] the exclusive possession of the space occupied by the wheels,'" 198 U.S., at 380 , thereby interfering with the Indians' treaty right of access to fish. This Court reviewed in some detail the precise nature of the Indians' fishing rights under the Yakima Treaty, and concluded: </s> "[The treaties] reserved rights . . . to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved `in common with citizens of the Territory.' As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given `the right of taking fish at all usual and accustomed places,' and the right `of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for - in other words, the Indians were given a right in the land - the right of crossing it to the river - the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty." Id., at 381 (emphasis added). </s> The Court thus viewed these treaties as intended to "giv[e] a right in the land" - a "servitude" upon all non-Indian land - to enable Indians to fish "in common with citizens of the Territory." The focus was on access to the traditional fishing areas for the purpose of enjoying the "right of fishing." Ibid. The Winans Court concluded, on the facts before it, that the right of access to fish in these areas had been abridged. It stated that "[i]n the actual taking of [443 U.S. 658, 702] fish white men may not be confined to a spear or crude net, but it does not follow that they may construct and use a device which gives them exclusive possession of the fishing places, as it is admitted a fish wheel does." Id., at 382 (emphasis added). Thus, Winans was decided solely upon the basis of a treaty-secured right of access to fish. Moreover, the Court's analysis of the treaty right at issue in Winans strongly indicates that nothing more than a right of access fairly could be inferred from the treaty. 4 </s> Nor do the Puyallup cases interpret the treaties to require that any specified proportion of the catch be reserved for Indians. Indeed, Puyallup Tribe v. Washington Game Dept., 391 U.S. 392 (1968) (Puyallup I), consistently with Winans, described the right of Indians under the treaties as "the right to fish `at all usual and accustomed places.'" 391 U.S., at 398 . 5 The issue before the Court in Puyallup I was the extent to which the State could regulate fishing. It held: </s> "[T]he `right' to fish outside the reservation was a treaty [443 U.S. 658, 703] `right' that could not be qualified or conditioned by the State. But `the time and manner of fishing . . . necessary for the conservation of fish,' not being defined or established by the treaty, were within the reach of state power." Id., at 399. </s> The Court today finds support for its views in Puyallup I because the Court there recognized that, apart from conservation measures, the State could not impose restrictive regulations on the treaty rights of Indians. But it does not follow from this that an affirmative right to a specified percentage of the catch is guaranteed by the treaties to Indians or to non-Indians, for the Court misapprehends the nature of the basic right sought to be preserved by Congress. This, as noted above, was a right of the Indians to reach their usual and accustomed fishing areas. Put differently, this right, described in Winans as a servitude or right over land not owned by the Indians, entitles the Indians to trespass on any land when necessary to reach their traditional fishing areas, and is a right not enjoyed by non-Indian residents of the area. </s> In permitting the State to place limitations on the Indians' access rights when conservation so requires, the Court went further in Puyallup I and suggested that even regulations thus justified would have to satisfy the requirements of "equal protection implicit in the phrase `in common with.'" 391 U.S., at 403 . Accordingly, in Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (1973) (Puyallup II), we considered whether the conservation measures taken by the State had been evenhanded in the treatment of the Indians. At issue was a Washington State ban on all net fishing - by both Indians and non-Indians - for steelhead trout in the Puyallup River. According to testimony before the trial court, the annual run of steelhead trout in the Puyallup River was between 16,000 and 18,000, while unlimited sport fishing would result in the taking of between 12,000 and 14,000 steelhead annually. Because the escape of at least 25% of the entire [443 U.S. 658, 704] run was required for hatcheries and spawning, the sport fishing totally pre-empted all commercial fishing by Indians. The State therefore imposed a ban on all net fishing. The Indians claimed that this ban amounted to an improper subordination of their treaty rights to the privilege of recreational fishing enjoyed by non-Indians. </s> We held in Puyallup II that the ban on net fishing, as it applied to Indians covered by treaty, was an infringement of their rights. The State in the name of conservation was discriminating against the Indians "because all Indian net fishing is barred and only hook-and-line fishing entirely preempted by non-Indians, is allowed." Id., at 48. Because "[o]nly an expert could fairly estimate what degree of net fishing plus fishing by hook and line would allow the escapement of fish necessary for perpetuation of the species," ibid., we remanded to the Washington courts for a fair apportionment of the steelhead run between Indian net fishing and non-Indian sport fishing. </s> Relying upon the reference in Puyallup II to "apportionment," the Court expansively reads the decision in that case as strongly implying, if not holding, that the catch at Indians' "accustomed" fishing sites must be apportioned between Indian and non-Indian fishermen. This view certainly is not a necessary reading of Puyallup II. Indeed, I view it as a quite unjustified extension of that case. Puyallup II addressed an extremely narrow situation: where there had been "discrimination" by state regulations under which "all Indian net fishing [was] barred and only hook-and-line fishing entirely pre-empted by non-Indians, [was] allowed." Ibid. In any event, to the extent language in Puyallup II may be read as supporting some general apportionment of the catch, it is dictum that is plainly incompatible with the language and historical understanding of these treaties. 6 </s> [443 U.S. 658, 705] </s> Emerging from our decisions in Winans, Puyallup I, and Puyallup II, therefore, is the proper approach to interpretation of the Indians' common fishing rights at the present time, when demand outstrips supply. The Indians have the right to go to their traditional fishing grounds to fish. Once there, they cannot be restricted in their methods or in the size of their take, save insofar as restrictions are required for conserving the fisheries from which they draw. Even in situations where such regulations are required, however, the State must be evenhanded in limiting Indian and non-Indian fishing activity. It is not free to make the determination - apparently made by Washington with respect to the ban on net fishing in the Puyallup River - that Indian fishing rights will be totally subordinated to the interests of non-Indians. 7 </s> III </s> In my view, the District Court below - and now this Court - has formulated an apportionment doctrine that cannot be squared with the language or history of the treaties, or indeed with the prior decisions of this Court. The application of this doctrine, and particularly the construction of the term "in common" as requiring a basic 50-50 apportionment, is likely to result in an extraordinary economic windfall to [443 U.S. 658, 706] Indian fishermen in the commercial fish market by giving them a substantial position in the market wholly protected from competition from non-Indian fishermen. 8 Indeed, non-Indian fishermen apparently will be required from time to time to stay out of fishing areas completely while Indians catch their court-decreed allotment. In sum, the District Court's decision will discriminate quite unfairly against non-Indians. 9 </s> [443 U.S. 658, 707] </s> To be sure, if it were necessary to construe the treaties to produce these results, it would be our duty so to construe them. But for the reasons stated above, I think the Court's construction virtually ignores the historical setting and purposes of the treaties, considerations that bear compellingly upon a proper reading of their language. Nor do the prior decisions of this Court support or justify what seems to me to be a substantial reformation of the bargain struck with the Indians in 1854-1855. </s> I would hold that the treaties give to the Indians several significant rights that should be respected. As made clear in Winans, the purpose of the treaties was to assure to Indians the right of access over private lands so that they could continue to fish at their usual and accustomed fishing grounds. Indians also have the exclusive right to fish on their reservations, and are guaranteed enough fish to satisfy their ceremonial and subsistence needs. Moreover, as subsequently construed, the treaties exempt Indians from state regulation (including the payment of license fees) except as necessary [443 U.S. 658, 708] for conservation in the interest of all fishermen. Finally, under Puyallup II, it is settled that even a facially neutral conservation regulation is invalid if its effect is to discriminate against Indian fishermen. These rights, privileges, and exemptions - possessed only by Indians - are quite substantial. I find no basis for according them additional advantages. </s> [Footnote 1 Treaty of Medicine Creek, 10 Stat. 1132; Treaty of Point Elliott, 12 Stat. 927; Treaty of Point No Point, 12 Stat. 933; Treaty with the Makahs, 12 Stat. 939; Treaty with the Yakamas, 12 Stat. 951; Treaty of Olympia, 12 Stat. 971. </s> [Footnote 2 Treaty of Medicine Creek, 10 Stat. 1133 (emphasis supplied). There were some slight, immaterial variations in the language used. See, e. g., Treaty with the Yakamas, quoted infra, at 698. </s> [Footnote 3 Indeed, if the Court's interpretation of the treaties were correct, then the exclusive right with respect to reservation fishing would be largely superfluous. If the Indians had the right to 50%, and no more, of the fish irrespective of where they are caught, then it hardly would be of any great value to them that they could keep others from taking fish from locations on the reservation. The most reasonable way to interpret the exclusive right of reservation fishing so that it was of value, therefore, is as a special right of access. </s> [Footnote 4 The Government's brief in Winans, cited approvingly by the Court in that case, indicates that the Government also understood the treaty to guarantee nothing more than access rights to traditional fishing locations. In that brief, the Government advocated only "a way of easy access, free ingress and egress to and from the fishing grounds." Brief for Appellants, O. T. 1904, No. 180, p. 56. This interpretation of Winans was unequivocally affirmed by the Court a short time later in Seufert Bros. Co. v. United States, 249 U.S. 194 (1919). At issue in that case was whether Indians from the Yakima Nation had the right under their treaty to cross the Columbia River and fish from the south bank, which admittedly had belonged to other tribes at the time of the treaty. The Court viewed Seufert, a case unquestionably involving only the right of access, to be squarely controlled by its earlier decision in Winans. 249 U.S., at 198 . Moreover, the Court reaffirmed its view that the effect of the reservation of common fishing rights to the Indians amounted to a servitude. Id., at 199. </s> [Footnote 5 The treaty right was repeatedly referred to in Puyallup I as a "right to fish." This phrase was used no less than seven times in the course of the opinion, with no distinction being made between the right "to fish" and the right "of taking fish." 391 U.S., at 397 -399. </s> [Footnote 6 Having decided that some regulation was required, but that the treaty forbade the State to choose to regulate only Indian fishing for conservation [443 U.S. 658, 705] purposes, we remanded for an apportionment between net fishing and sport fishing. Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (1977) (Puyallup III), is of little assistance in deciding the issue in the present cases. The Court in that case decided only that the regulations permitted in Puyallup I could be applied against Indian fishing on the reservations, as well as off them. </s> [Footnote 7 Because it is admitted that the Indians at all times have taken substantial numbers of fish at their traditional fishing places, I do not consider whether a monopolization of all of the fish by the non-Indians would violate the spirit of the Indians' treaty right of access. Of course, if state conservation regulations were to operate discriminatorily to deny fish to Indians, the Court's decision in Puyallup II would apply. </s> [Footnote 8 The Court apparently sees this windfall as being necessary for the Indians, for it concludes that "in light of the far superior numbers, capital resources, and technology of the non-Indians, the concept of the Indians' `equal opportunity' to take advantage of a scarce resource is likely in practice to mean that the Indians' `right of taking fish' will net them virtually no catch at all." Ante, at 677 n. 22. But if the situation of the Indians in the Pacific Northwest requires that special provisions be made for their livelihood, this Court should not enact these provisions by reforming a bargain struck more than 100 years ago. Nor should the cost of compensating for any disadvantage the Indians may suffer, or have suffered, be borne solely by the commercial fishermen of the State of Washington - a fraction of the people who have benefited from the population imbalance. This is a problem for resolution by Congress. It has the basic responsibility for making sure that Indians are not discriminated against, and that their rights are fully protected. In the exercise of this responsibility, Congress could pursue various avenues for relief of any perceived discrimination or disadvantage. It could, for example, provide for Indian fishermen the modern technology and capital resources that they lack, thereby enabling them to compete on an equal basis with non-Indian fishermen. Moreover, a legislation of this problem can protect the interests of Indians without imposing substantially the entire cost upon non-Indian fishermen of the State of Washington. </s> [Footnote 9 In addition to the burdens placed upon non-Indian fishermen, the Court's decision is likely to prove difficult to enforce fairly and effectively. To date, the District Court has had to resort to the outer limits of its equitable powers in order to enforce its decree. This has included taking over supervision of all of the commercial fishing in the Puget Sound area, ordering the creation of a telephone "hot line" that fishermen can use to determine when and where they may legally fish, and ordering United States Marshals to board fishing craft and inspect for [443 U.S. 658, 707] violations of the court's preliminary injunction. Indeed, in his response to the petition for certiorari in the present case, the Solicitor General set forth in some detail the extraordinary difficulty the Government has had in enforcing the District Court's decrees, saying: "[T]he default of the state government has required the United States to concentrate a disproportionate amount of its limited fisheries enforcement personnel on what is essentially a local enforcement problem. Agents of the National Marine Fisheries Service, the United States Fish and Wildlife Service, the United States Marshals Service, and the Coast Guard have been diverted from their regular duties to assist the district court in implementing the Indians' treaty rights. This has resulted in a reduction in the federal fisheries services available for the rest of the country and for the enforcement of the ocean fisheries programs governed by the Fishery Conservation and Management Act of 1976." Brief for United States on Petition for Certiorari in Nos. 78-119 and 78-139, p. 20. These problems, it seems to me, will be exacerbated by a formula apportionment such as that ordered by the Court. </s> [443 U.S. 658, 709]

United States Supreme Court MIRANDA v. ARIZONA(1966) No. 759 Argued: Decided: June 13, 1966 </s> [Footnote * Together with No. 760, Vignera v. New York, on certiorari to the Court of Appeals of New York and No. 761, Westover v. United States, on certiorari to the United States Court of Appeals for the Ninth Circuit, both argued February 28 - March 1, 1966; and No. 584, California v. Stewart, on certiorari to the Supreme Court of California, argued February 28 - March 2, 1966. </s> In each of these cases the defendant while in police custody was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all four cases the questioning elicited oral admissions, and in three of them signed statements as well, which were admitted at their trials. All defendants were convicted and all convictions, except in No. 584, were affirmed on appeal. Held: </s> 1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination. Pp. 444-491. </s> (a) The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. Pp. 445-458. </s> (b) The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system and guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of his own will," during a period of custodial interrogation [384 U.S. 436, 437] as well as in the courts or during the course of other official investigations. Pp. 458-465. </s> (c) The decision in Escobedo v. Illinois, 378 U.S. 478 , stressed the need for protective devices to make the process of police interrogation conform to the dictates of the privilege. Pp. 465-466. </s> (d) In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. Pp. 467-473. </s> (e) If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present. Pp. 473-474. </s> (f) Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel. P. 475. </s> (g) Where the individual answers some questions during incustody interrogation he has not waived his privilege and may invoke his right to remain silent thereafter. Pp. 475-476. </s> (h) The warnings required and the waiver needed are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement, inculpatory or exculpatory, made by a defendant. Pp. 476-477. </s> 2. The limitations on the interrogation process required for the protection of the individual's constitutional rights should not cause an undue interference with a proper system of law enforcement, as demonstrated by the procedures of the FBI and the safeguards afforded in other jurisdictions. Pp. 479-491. </s> 3. In each of these cases the statements were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. Pp. 491-499. </s> 98 Ariz. 18, 401 P.2d 721; 15 N. Y. 2d 970, 207 N. E. 2d 527; 16 N. Y. 2d 614, 209 N. E. 2d 110; 342 F.2d 684, reversed; 62 Cal. 2d 571, 400 P.2d 97, affirmed. [384 U.S. 436, 438] </s> John J. Flynn argued the cause for petitioner in No. 759. With him on the brief was John P. Frank. Victor M. Earle III argued the cause and filed a brief for petitioner in No. 760. F. Conger Fawcett argued the cause and filed a brief for petitioner in No. 761. Gordon Ringer, Deputy Attorney General of California, argued the cause for petitioner in No. 584. With him on the briefs were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General. </s> Gary K. Nelson, Assistant Attorney General of Arizona, argued the cause for respondent in No. 759. With him on the brief was Darrell F. Smith, Attorney General. William I. Siegel argued the cause for respondent in No. 760. With him on the brief was Aaron E. Koota. Solicitor General Marshall argued the cause for the United States in No. 761. With him on the brief were Assistant Attorney General Vinson, Ralph S. Spritzer, Nathan Lewin, Beatrice Rosenberg and Ronald L. Gainer. William A. Norris, by appointment of the Court, 382 U.S. 952 , argued the cause and filed a brief for respondent in No. 584. </s> Telford Taylor, by special leave of Court, argued the cause for the State of New York, as amicus curiae, in all cases. With him on the brief were Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Barry Mahoney and George D. Zuckerman, Assistant Attorneys General, joined by the Attorneys General for their respective States and jurisdictions as follows: Richmond M. Flowers of Alabama, Darrell F. Smith of Arizona, Bruce Bennett of Arkansas, Duke W. Dunbar of Colorado, David P. Buckson of Delaware, Earl Faircloth of Florida, Arthur K. Bolton of Georgia, Allan G. Shepard of Idaho, William G. Clark of Illinois, Robert C. Londerholm of Kansas, Robert Matthews of Kentucky, Jack P. F. [384 U.S. 436, 439] Gremillion of Louisiana, Richard J. Dubord of Maine, Thomas B. Finan of Maryland, Norman H. Anderson of Missouri, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, T. Wade Bruton of North Carolina, Helgi Johanneson of North Dakota, Robert Y. Thornton of Oregon, Walter E. Alessandroni of Pennsylvania, J. Joseph Nugent of Rhode Island, Daniel R. McLeod of South Carolina, Waggoner Carr of Texas, Robert Y. Button of Virginia, John J. O'Connell of Washington, C. Donald Robertson of West Virginia, John F. Raper of Wyoming, Rafael Hernandez Colon of Puerto Rico and Francisco Corneiro of the Virgin Islands. </s> Duane R. Nedrud, by special leave of Court, argued the cause for the National District Attorneys Association, as amicus curiae, urging affirmance in Nos. 759 and 760, and reversal in No. 584. With him on the brief was Marguerite D. Oberto. </s> Anthony G. Amsterdam, Paul J. Mishkin, Raymond L. Bradley, Peter Hearn and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, in all cases. </s> MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. </s> The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. [384 U.S. 436, 440] </s> We dealt with certain phases of this problem recently in Escobedo v. Illinois, 378 U.S. 478 (1964). There, as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible. </s> This case has been the subject of judicial interpretation and spirited legal debate since it was decided two years ago. Both state and federal courts, in assessing its implications, have arrived at varying conclusions. 1 A wealth of scholarly material has been written tracing its ramifications and underpinnings. 2 Police and prosecutor [384 U.S. 436, 441] have speculated on its range and desirability. 3 We granted certiorari in these cases, 382 U.S. 924, 925 , 937, in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation, and to give [384 U.S. 436, 442] concrete constitutional guidelines for law enforcement agencies and courts to follow. </s> We start here, as we did in Escobedo, with the premise that our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of the Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights that are enshrined in our Constitution - that "No person . . . shall be compelled in any criminal case to be a witness against himself," and that "the accused shall . . . have the Assistance of Counsel" - rights which were put in jeopardy in that case through official overbearing. These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured "for ages to come, and . . . designed to approach immortality as nearly as human institutions can approach it," Cohens v. Virginia, 6 Wheat. 264, 387 (1821). </s> Over 70 years ago, our predecessors on this Court eloquently stated: </s> "The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the [384 U.S. 436, 443] questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." Brown v. Walker, 161 U.S. 591, 596 -597 (1896). </s> In stating the obligation of the judiciary to apply these constitutional rights, this Court declared in Weems v. United States, 217 U.S. 349, 373 (1910): </s> ". . . our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The [384 U.S. 436, 444] meaning and vitality of the Constitution have developed against narrow and restrictive construction." </s> This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the individual could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that what was proclaimed in the Constitution had not become but a "form of words," Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920), in the hands of government officials. And it is in this spirit, consistent with our role as judges, that we adhere to the principles of Escobedo today. </s> Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 4 As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the [384 U.S. 436, 445] process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. </s> I. </s> The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features - incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights. </s> An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930's, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the "third degree" flourished at that time. 5 </s> [384 U.S. 436, 446] In a series of cases decided by this Court long after these studies, the police resorted to physical brutality - beating, hanging, whipping - and to sustained and protracted questioning incommunicado in order to extort confessions. 6 The Commission on Civil Rights in 1961 found much evidence to indicate that "some policemen still resort to physical force to obtain confessions," 1961 Comm'n on Civil Rights Rep., Justice, pt. 5, 17. The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party. People v. Portelli, 15 N. Y. 2d 235, 205 N. E. 2d 857, 257 N. Y. S. 2d 931 (1965). 7 </s> [384 U.S. 436, 447] </s> The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern. Unless a proper limitation upon custodial interrogation is achieved - such as these decisions will advance - there can be no assurance that practices of this nature will be eradicated in the foreseeable future. The conclusion of the Wickersham Commission Report, made over 30 years ago, is still pertinent: </s> "To the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the present Lord Chancellor of England (Lord Sankey): `It is not admissible to do a great right by doing a little wrong. . . . It is not sufficient to do justice by obtaining a proper result by irregular or improper means.' Not only does the use of the third degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, `It is a short cut and makes the police lazy and unenterprising.' Or, as another official quoted remarked: `If you use your fists, you [384 U.S. 436, 448] are not so likely to use your wits.' We agree with the conclusion expressed in the report, that `The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.'" IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 5 (1931). </s> Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, "Since Chambers v. Florida, 309 U.S. 227 , this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S. 199, 206 (1960). Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics. 8 These [384 U.S. 436, 449] texts are used by law enforcement agencies themselves as guides. 9 It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedures observed and noted around the country. </s> The officers are told by the manuals that the "principal psychological factor contributing to a successful interrogation is privacy - being alone with the person under interrogation." 10 The efficacy of this tactic has been explained as follows: </s> "If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and [384 U.S. 436, 450] more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law." 11 </s> To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, 12 to cast blame on the victim or on society. 13 These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already - that he is guilty. Explanations to the contrary are dismissed and discouraged. </s> The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. [384 U.S. 436, 451] One writer describes the efficacy of these characteristics in this manner: </s> "In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable." 14 </s> The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say: </s> "Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that's why you carried a gun - for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication [384 U.S. 436, 452] that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about it, isn't it, Joe?" 15 </s> Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence which negates the self-defense explanation. This should enable him to secure the entire story. One text notes that "Even if he fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense `out' at the time of trial." 16 </s> When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility. One ploy often used has been termed the "friendly-unfriendly" or the "Mutt and Jeff" act: </s> ". . . In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He's sent a dozen men away for this crime and he's going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the subject will cooperate. He can't hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by quietly and demur at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room." 17 </s> [384 U.S. 436, 453] </s> The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a line-up. "The witness or complainant (previously coached, if necessary) studies the line-up and confidently points out the subject as the guilty party." 18 Then the questioning resumes "as though there were now no doubt about the guilt of the subject." A variation on this technique is called the "reverse line-up": </s> "The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him with different offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations." 19 </s> The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. "This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses [384 U.S. 436, 454] the subject with the apparent fairness of his interrogator." 20 After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect's refusal to talk: </s> "Joe, you have a right to remain silent. That's your privilege and I'm the last person in the world who'll try to take it away from you. If that's the way you want to leave this, O. K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you, `I don't want to answer any of your questions.' You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you, and so will everybody else. So let's sit here and talk this whole thing over." 21 </s> Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly. </s> In the event that the subject wishes to speak to a relative or an attorney, the following advice is tendered: </s> "[T]he interrogator should respond by suggesting that the subject first tell the truth to the interrogator himself rather than get anyone else involved in the matter. If the request is for an attorney, the interrogator may suggest that the subject save himself or his family the expense of any such professional service, particularly if he is innocent of the offense under investigation. The interrogator may also add, `Joe, I'm only looking for the truth, and if you're telling the truth, that's it. You can handle this by yourself.'" 22 </s> [384 U.S. 436, 455] </s> From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must "patiently maneuver himself or his quarry into a position from which the desired objective may be attained." 23 When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights. </s> Even without employing brutality, the "third degree" or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. 24 </s> [384 U.S. 436, 456] This fact may be illustrated simply by referring to three confession cases decided by this Court in the Term immediately preceding our Escobedo decision. In Townsend v. Sain, 372 U.S. 293 (1963), the defendant was a 19-year-old heroin addict, described as a "near mental defective," id., at 307-310. The defendant in Lynumn v. Illinois, 372 U.S. 528 (1963), was a woman who confessed to the arresting officer after being importuned to "cooperate" in order to prevent her children from being taken by relief authorities. This Court as in those cases reversed the conviction of a defendant in Haynes v. Washington, 373 U.S. 503 (1963), whose persistent request during his interrogation was to phone his wife or attorney. 25 In other settings, these individuals might have exercised their constitutional rights. In the incommunicado police-dominated atmosphere, they succumbed. </s> In the cases before us today, given this background, we concern ourselves primarily with this interrogation atmosphere and the evils it can bring. In No. 759, Miranda v. Arizona, the police arrested the defendant and took him to a special interrogation room where they secured a confession. In No. 760, Vignera v. New York, the defendant made oral admissions to the police after interrogation in the afternoon, and then signed an inculpatory statement upon being questioned by an assistant district attorney later the same evening. In No. 761, Westover v. United States, the defendant was handed over to the Federal Bureau of Investigation by [384 U.S. 436, 457] local authorities after they had detained and interrogated him for a lengthy period, both at night and the following morning. After some two hours of questioning, the federal officers had obtained signed statements from the defendant. Lastly, in No. 584, California v. Stewart, the local police held the defendant five days in the station and interrogated him on nine separate occasions before they secured his inculpatory statement. </s> In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant was a seriously disturbed individual with pronounced sexual fantasies, and in Stewart, in which the defendant was an indigent Los Angeles Negro who had dropped out of school in the sixth grade. To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice. </s> It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. 26 The current practice of incommunicado interrogation is at odds with one of our [384 U.S. 436, 458] Nation's most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. </s> From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation. </s> II. </s> We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. 27 Perhaps [384 U.S. 436, 459] the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. The Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). He resisted the oath and declaimed the proceedings, stating: </s> "Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so." Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944). </s> On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England. 28 These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights. 29 Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that "illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886). The privilege was elevated to constitutional status and has always been "as broad as the mischief [384 U.S. 436, 460] against which it seeks to guard." Counselman v. Hitchcock, 142 U.S. 547, 562 (1892). We cannot depart from this noble heritage. </s> Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a "noble principle often transcends its origins," the privilege has come rightfully to be recognized in part as an individual's substantive right, a "right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev'd, 353 U.S. 391 (1957). We have recently noted that the privilege against self-incrimination - the essential mainstay of our adversary system - is founded on a complex of values, Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 -57, n. 5 (1964); Tehan v. Shott, 382 U.S. 406, 414 -415, n. 12 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government - state or federal - must accord to the dignity and integrity of its citizens. To maintain a "fair state-individual balance," to require the government "to shoulder the entire load," 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida, 309 U.S. 227, 235 -238 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will." Malloy v. Hogan, 378 U.S. 1, 8 (1964). </s> The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation. [384 U.S. 436, 461] In this Court, the privilege has consistently been accorded a liberal construction. Albertson v. SACB, 382 U.S. 70, 81 (1965); Hoffman v. United States, 341 U.S. 479, 486 (1951); Arndstein v. McCarthy, 254 U.S. 71, 72 -73 (1920); Counselman v. Hitchock, 142 U.S. 547, 562 (1892). We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery. 30 </s> This question, in fact, could have been taken as settled in federal courts almost 70 years ago, when, in Bram v. United States, 168 U.S. 532, 542 (1897), this Court held: </s> "In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment . . . commanding that no person `shall be compelled in any criminal case to be a witness against himself.'" </s> In Bram, the Court reviewed the British and American history and case law and set down the Fifth Amendment standard for compulsion which we implement today: </s> "Much of the confusion which has resulted from the effort to deduce from the adjudged cases what [384 U.S. 436, 462] would be a sufficient quantum of proof to show that a confession was or was not voluntary, has arisen from a misconception of the subject to which the proof must address itself. The rule is not that in order to render a statement admissible the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent. . . ." 168 U.S., at 549 . And see, id., at 542. </s> The Court has adhered to this reasoning. In 1924, Mr. Justice Brandeis wrote for a unanimous Court in reversing a conviction resting on a compelled confession, Wan v. United States, 266 U.S. 1 . He stated: </s> "In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v. United States, 168 U.S. 532 ." 266 U.S., at 14 -15. </s> In addition to the expansive historical development of the privilege and the sound policies which have nurtured [384 U.S. 436, 463] its evolution, judicial precedent thus clearly establishes its application to incommunicado interrogation. In fact, the Government concedes this point as well established in No. 761, Westover v. United States, stating: "We have no doubt . . . that it is possible for a suspect's Fifth Amendment right to be violated during in-custody questioning by a law-enforcement officer." 31 </s> Because of the adoption by Congress of Rule 5 (a) of the Federal Rules of Criminal Procedure, and this Court's effectuation of that Rule in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner "without unnecessary delay" and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb, 318 U.S., at 343 -344, and in Mallory, 354 U.S., at 455 -456, we recognized both the dangers of interrogation and the appropriateness of prophylaxis stemming from the very fact of interrogation itself. 32 </s> Our decision in Malloy v. Hogan, 378 U.S. 1 (1964), necessitates an examination of the scope of the privilege in state cases as well. In Malloy, we squarely held the [384 U.S. 436, 464] privilege applicable to the States, and held that the substantive standards underlying the privilege applied with full force to state court proceedings. There, as in Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964), and Griffin v. California, 380 U.S. 609 (1965), we applied the existing Fifth Amendment standards to the case before us. Aside from the holding itself, the reasoning in Malloy made clear what had already become apparent - that the substantive and procedural safeguards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege, 378 U.S., at 7 -8. 33 The voluntariness doctrine in the state cases, as Malloy indicates, encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from [384 U.S. 436, 465] making a free and rational choice. 34 The implications of this proposition were elaborated in our decision in Escobedo v. Illinois, 378 U.S. 478 , decided one week after Malloy applied the privilege to the States. </s> Our holding there stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interrogation, and we drew attention to that fact at several points in the decision, 378 U.S., at 483 , 485, 491. This was no isolated factor, but an essential ingredient in our decision. The entire thrust of police interrogation there, as in all the cases today, was to put the defendant in such an emotional state as to impair his capacity for rational judgment. The abdication of the constitutional privilege - the choice on his part to speak to the police - was not made knowingly or competently because of the failure to apprise him of his rights; the compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak. </s> A different phase of the Escobedo decision was significant in its attention to the absence of counsel during the questioning. There, as in the cases today, we sought a protective device to dispel the compelling atmosphere of the interrogation. In Escobedo, however, the police did not relieve the defendant of the anxieties which they had created in the interrogation rooms. Rather, they denied his request for the assistance of counsel, 378 U.S., at 481 , 488, 491. 35 This heightened his dilemma, and [384 U.S. 436, 466] made his later statements the product of this compulsion. Cf. Haynes v. Washington, 373 U.S. 503, 514 (1963). The denial of the defendant's request for his attorney thus undermined his ability to exercise the privilege - to remain silent if he chose or to speak without any intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion. </s> It was in this manner that Escobedo explicated another facet of the pre-trial privilege, noted in many of the Court's prior decisions: the protection of rights at trial. 36 That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warnings and the rights of counsel, "all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police." Mapp v. Ohio, 367 U.S. 643, 685 (1961) (HARLAN, J., dissenting). Cf. Pointer v. Texas, 380 U.S. 400 (1965). [384 U.S. 436, 467] </s> III. </s> Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored. </s> It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed. </s> At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and [384 U.S. 436, 468] unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it - the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury. 37 Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it. </s> The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information [384 U.S. 436, 469] as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; 38 a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time. </s> The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest. </s> The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere [384 U.S. 436, 470] warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more "will benefit only the recidivist and the professional." Brief for the National District Attorneys Association as amicus curiae, p. 14. Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Cf. Escobedo v. Illinois, 378 U.S. 478, 485 , n. 5. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires. </s> The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial. See Crooker v. California, 357 U.S. 433, 443 -448 (1958) (DOUGLAS, J., dissenting). </s> An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request [384 U.S. 436, 471] may be the person who most needs counsel. As the California Supreme Court has aptly put it: </s> "Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it." People v. Dorado, 62 Cal. 2d 338, 351, 398 P.2d 361, 369-370, 42 Cal. Rptr. 169, 177-178 (1965) (Tobriner, J.). </s> In Carnley v. Cochran, 369 U.S. 506, 513 (1962), we stated: "[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request." This proposition applies with equal force in the context of providing counsel to protect an accused's Fifth Amendment privilege in the face of interrogation. 39 Although the role of counsel at trial differs from the role during interrogation, the differences are not relevant to the question whether a request is a prerequisite. </s> Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of [384 U.S. 436, 472] circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead: Only through such a warning is there ascertainable assurance that the accused was aware of this right. </s> If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession cases with which we have dealt in the past involve those unable to retain counsel. 40 While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. 41 Denial [384 U.S. 436, 473] of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335 (1963), and Douglas v. California, 372 U.S. 353 (1963). </s> In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent - the person most often subjected to interrogation - the knowledge that he too has a right to have counsel present. 42 As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. 43 </s> Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, [384 U.S. 436, 474] at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. 44 At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. </s> This does not mean, as some have suggested, that each police station must have a "station house lawyer" present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time. [384 U.S. 436, 475] </s> If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490 , n. 14. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders. </s> An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516 (1962), is applicable here: </s> "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." </s> See also Glasser v. United States, 315 U.S. 60 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives [384 U.S. 436, 476] some information on his own prior to invoking his right to remain silent when interrogated. 45 </s> Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation. </s> The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to "admissions" of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, [384 U.S. 436, 477] for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely "exculpatory." If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as to himself. </s> The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries. Under the system of warnings we delineate today or under any other system which may be devised and found effective, the safeguards to be erected about the privilege must come into play at this point. </s> Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois, 378 U.S. 478, 492 . When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of [384 U.S. 436, 478] responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present. 46 </s> In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, 47 or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. </s> To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to [384 U.S. 436, 479] protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. 48 </s> IV. </s> A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. See, e. g., Chambers v. Florida, 309 U.S. 227, 240 -241 (1940). The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged. As Mr. Justice Brandeis once observed: </s> "Decency, security and liberty alike demand that government officials shall be subjected to the same [384 U.S. 436, 480] rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion). 49 </s> In this connection, one of our country's distinguished jurists has pointed out: "The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law." 50 </s> If the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide. An attorney may advise his client not to talk to police until he has had an opportunity to investigate the case, or he may wish to be present with his client during any police questioning. In doing so an attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath - to protect to the extent of his ability the rights of his [384 U.S. 436, 481] client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution. </s> In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions. Although confessions may play an important role in some convictions, the cases before us present graphic examples of the overstatement of the "need" for confessions. In each case authorities conducted interrogations ranging up to five days in duration despite the presence, through standard investigating practices, of considerable evidence against each defendant. 51 Further examples are chronicled in our prior cases. See, e. g., Haynes v. Washington, 373 U.S. 503, 518 -519 (1963); Rogers v. Richmond, 365 U.S. 534, 541 (1961); Malinski v. New York, 324 U.S. 401, 402 (1945). 52 </s> [384 U.S. 436, 482] </s> It is also urged that an unfettered right to detention for interrogation should be allowed because it will often redound to the benefit of the person questioned. When police inquiry determines that there is no reason to believe that the person has committed any crime, it is said, he will be released without need for further formal procedures. The person who has committed no offense, however, will be better able to clear himself after warnings with counsel present than without. It can be assumed that in such circumstances a lawyer would advise his client to talk freely to police in order to clear himself. </s> Custodial interrogation, by contrast, does not necessarily afford the innocent an opportunity to clear themselves. A serious consequence of the present practice of the interrogation alleged to be beneficial for the innocent is that many arrests "for investigation" subject large numbers of innocent persons to detention and interrogation. In one of the cases before us, No. 584, California v. Stewart, police held four persons, who were in the defendant's house at the time of the arrest, in jail for five days until defendant confessed. At that time they were finally released. Police stated that there was "no evidence to connect them with any crime." Available statistics on the extent of this practice where it is condoned indicate that these four are far from alone in being subjected to arrest, prolonged detention, and interrogation without the requisite probable cause. 53 </s> [384 U.S. 436, 483] </s> Over the years the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and, more recently, that he has a right to free counsel if he is unable to pay. 54 A letter received from the Solicitor General in response to a question from the Bench makes it clear that the present pattern of warnings and respect for the [384 U.S. 436, 484] rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today. It states: </s> "At the oral argument of the above cause, Mr. Justice Fortas asked whether I could provide certain information as to the practices followed by the Federal Bureau of Investigation. I have directed these questions to the attention of the Director of the Federal Bureau of Investigation and am submitting herewith a statement of the questions and of the answers which we have received. </s> "`(1) When an individual is interviewed by agents of the Bureau, what warning is given to him? </s> "`The standard warning long given by Special Agents of the FBI to both suspects and persons under arrest is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court. Examples of this warning are to be found in the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S., 337 F.2d 136 (1964), cert. den. 380 U.S. 935 . </s> "`After passage of the Criminal Justice Act of 1964, which provides free counsel for Federal defendants unable to pay, we added to our instructions to Special Agents the requirement that any person who is under arrest for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, must also be advised of his right to free counsel if he is unable to pay, and the fact that such counsel will be assigned by the Judge. At the same time, we broadened the right to counsel warning [384 U.S. 436, 485] to read counsel of his own choice, or anyone else with whom he might wish to speak. </s> "`(2) When is the warning given? </s> "`The FBI warning is given to a suspect at the very outset of the interview, as shown in the Westover case, cited above. The warning may be given to a person arrested as soon as practicable after the arrest, as shown in the Jackson case, also cited above, and in U.S. v. Konigsberg, 336 F.2d 844 (1964), cert. den. 379 U.S. 933 , but in any event it must precede the interview with the person for a confession or admission of his own guilt. </s> "`(3) What is the Bureau's practice in the event that (a) the individual requests counsel and (b) counsel appears? </s> "`When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point, Shultz v. U.S., 351 F.2d 287 (1965). It may be continued, however, as to all matters other than the person's own guilt or innocence. If he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent. For example, in Hiram v. U.S., 354 F.2d 4 (1965), the Agent's conclusion that the person arrested had waived his right to counsel was upheld by the courts. </s> "`A person being interviewed and desiring to consult counsel by telephone must be permitted to do so, as shown in Caldwell v. U.S., 351 F.2d 459 (1965). When counsel appears in person, he is permitted to confer with his client in private. [384 U.S. 436, 486] </s> "`(4) What is the Bureau's practice if the individual requests counsel, but cannot afford to retain an attorney? </s> "`If any person being interviewed after warning of counsel decides that he wishes to consult with counsel before proceeding further the interview is terminated, as shown above. FBI Agents do not pass judgment on the ability of the person to pay for counsel. They do, however, advise those who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge.'" 55 </s> The practice of the FBI can readily be emulated by state and local enforcement agencies. The argument that the FBI deals with different crimes than are dealt with by state authorities does not mitigate the significance of the FBI experience. 56 </s> The experience in some other countries also suggests that the danger to law enforcement in curbs on interrogation is overplayed. The English procedure since 1912 under the Judges' Rules is significant. As recently [384 U.S. 436, 487] strengthened, the Rules require that a cautionary warning be given an accused by a police officer as soon as he has evidence that affords reasonable grounds for suspicion; they also require that any statement made be given by the accused without questioning by police. 57 </s> [384 U.S. 436, 488] The right of the individual to consult with an attorney during this period is expressly recognized. 58 </s> The safeguards present under Scottish law may be even greater than in England. Scottish judicial decisions bar use in evidence of most confessions obtained through police interrogation. 59 In India, confessions made to police not in the presence of a magistrate have been excluded [384 U.S. 436, 489] by rule of evidence since 1872, at a time when it operated under British law. 60 Identical provisions appear in the Evidence Ordinance of Ceylon, enacted in 1895. 61 Similarly, in our country the Uniform Code of Military Justice has long provided that no suspect may be interrogated without first being warned of his right not to make a statement and that any statement he makes may be used against him. 62 Denial of the right to consult counsel during interrogation has also been proscribed by military tribunals. 63 There appears to have been no marked detrimental effect on criminal law enforcement in these jurisdictions as a result of these rules. Conditions of law enforcement in our country are sufficiently similar to permit reference to this experience as assurance that lawlessness will not result from warning an individual of his rights or allowing him to exercise them. Moreover, it is consistent with our legal system that we give at least as much protection to these rights as is given in the jurisdictions described. We deal in our country with rights grounded in a specific requirement of the Fifth Amendment of the Constitution, [384 U.S. 436, 490] whereas other jurisdictions arrived at their conclusions on the basis of principles of justice not so specifically defined. 64 </s> It is also urged upon us that we withhold decision on this issue until state legislative bodies and advisory groups have had an opportunity to deal with these problems by rule making. 65 We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it. In any event, however, the issues presented are of constitutional dimensions and must be determined by the courts. The admissibility of a statement in the face of a claim that it was obtained in violation of the defendant's constitutional rights is an issue the resolution of which has long since been undertaken by this Court. See Hopt v. Utah, 110 U.S. 574 (1884). Judicial solutions to problems of constitutional dimension have evolved decade by decade. As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us and it is our [384 U.S. 436, 491] responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. </s> V. </s> Because of the nature of the problem and because of its recurrent significance in numerous cases, we have to this point discussed the relationship of the Fifth Amendment privilege to police interrogation without specific concentration on the facts of the cases before us. We turn now to these facts to consider the application to these cases of the constitutional principles discussed above. In each instance, we have concluded that statements were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege. </s> No. 759. Miranda v. Arizona. </s> On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home and taken in custody to a Phoenix police station. He was there identified by the complaining witness. The police then took him to "Interrogation Room No. 2" of the detective bureau. There he was questioned by two police officers. The officers admitted at trial that Miranda was not advised that he had a right to have an attorney present. 66 Two hours later, the [384 U.S. 436, 492] officers emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and "with full knowledge of my legal rights, understanding any statement I make may be used against me." 67 </s> At his trial before a jury, the written confession was admitted into evidence over the objection of defense counsel, and the officers testified to the prior oral confession made by Miranda during the interrogation. Miranda was found guilty of kidnapping and rape. He was sentenced to 20 to 30 years' imprisonment on each count, the sentences to run concurrently. On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights were not violated in obtaining the confession and affirmed the conviction. 98 Ariz. 18, 401 P.2d 721. In reaching its decision, the court emphasized heavily the fact that Miranda did not specifically request counsel. </s> We reverse. From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings the statements were inadmissible. The mere fact that he signed a statement which contained a typed-in clause stating that he had "full knowledge" of his "legal rights" does not approach the knowing and intelligent waiver required to relinquish constitutional rights. Cf. Haynes v. Washington, 373 U.S. 503 , [384 U.S. 436, 493] 512-513 (1963); Haley v. Ohio, 332 U.S. 596, 601 (1948) (opinion of MR. JUSTICE DOUGLAS). </s> No. 760. Vignera v. New York. </s> Petitioner, Michael Vignera, was picked up by New York police on October 14, 1960, in connection with the robbery three days earlier of a Brooklyn dress shop. They took him to the 17th Detective Squad headquarters in Manhattan. Sometime thereafter he was taken to the 66th Detective Squad. There a detective questioned Vignera with respect to the robbery. Vignera orally admitted the robbery to the detective. The detective was asked on cross-examination at trial by defense counsel whether Vignera was warned of his right to counsel before being interrogated. The prosecution objected to the question and the trial judge sustained the objection. Thus, the defense was precluded from making any showing that warnings had not been given. While at the 66th Detective Squad, Vignera was identified by the store owner and a saleslady as the man who robbed the dress shop. At about 3 p. m. he was formally arrested. The police then transported him to still another station, the 70th Precinct in Brooklyn, "for detention." At 11 p. m. Vignera was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and Vignera's answers. This verbatim account of these proceedings contains no statement of any warnings given by the assistant district attorney. At Vignera's trial on a charge of first degree robbery, the detective testified as to the oral confession. The transcription of the statement taken was also introduced in evidence. At the conclusion of the testimony, the trial judge charged the jury in part as follows: </s> "The law doesn't say that the confession is void or invalidated because the police officer didn't advise the defendant as to his rights. Did you hear what [384 U.S. 436, 494] I said? I am telling you what the law of the State of New York is." </s> Vignera was found guilty of first degree robbery. He was subsequently adjudged a third-felony offender and sentenced to 30 to 60 years' imprisonment. 68 The conviction was affirmed without opinion by the Appellate Division, Second Department, 21 App. Div. 2d 752, 252 N. Y. S. 2d 19, and by the Court of Appeals, also without opinion, 15 N. Y. 2d 970, 207 N. E. 2d 527, 259 N. Y. S. 2d 857, remittitur amended, 16 N. Y. 2d 614, 209 N. E. 2d 110, 261 N. Y. S. 2d 65. In argument to the Court of Appeals, the State contended that Vignera had no constitutional right to be advised of his right to counsel or his privilege against self-incrimination. </s> We reverse. The foregoing indicates that Vignera was not warned of any of his rights before the questioning by the detective and by the assistant district attorney. No other steps were taken to protect these rights. Thus he was not effectively apprised of his Fifth Amendment privilege or of his right to have counsel present and his statements are inadmissible. </s> No. 761. Westover v. United States. </s> At approximately 9:45 p. m. on March 20, 1963, petitioner, Carl Calvin Westover, was arrested by local police in Kansas City as a suspect in two Kansas City robberies. A report was also received from the FBI that he was wanted on a felony charge in California. The local authorities took him to a police station and placed him in a line-up on the local charges, and at about 11:45 p. m. he was booked. Kansas City police interrogated Westover [384 U.S. 436, 495] on the night of his arrest. He denied any knowledge of criminal activities. The next day local officers interrogated him again throughout the morning. Shortly before noon they informed the FBI that they were through interrogating Westover and that the FBI could proceed to interrogate him. There is nothing in the record to indicate that Westover was ever given any warning as to his rights by local police. At noon, three special agents of the FBI continued the interrogation in a private interview room of the Kansas City Police Department, this time with respect to the robbery of a savings and loan association and a bank in Sacramento, California. After two or two and one-half hours, Westover signed separate confessions to each of these two robberies which had been prepared by one of the agents during the interrogation. At trial one of the agents testified, and a paragraph on each of the statements states, that the agents advised Westover that he did not have to make a statement, that any statement he made could be used against him, and that he had the right to see an attorney. </s> Westover was tried by a jury in federal court and convicted of the California robberies. His statements were introduced at trial. He was sentenced to 15 years' imprisonment on each count, the sentences to run consecutively. On appeal, the conviction was affirmed by the Court of Appeals for the Ninth Circuit. 342 F.2d 684. </s> We reverse. On the facts of this case we cannot find that Westover knowingly and intelligently waived his right to remain silent and his right to consult with counsel prior to the time he made the statement. 69 At the [384 U.S. 436, 496] time the FBI agents began questioning Westover, he had been in custody for over 14 hours and had been interrogated at length during that period. The FBI interrogation began immediately upon the conclusion of the interrogation by Kansas City police and was conducted in local police headquarters. Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. There is no evidence of any warning given prior to the FBI interrogation nor is there any evidence of an articulated waiver of rights after the FBI commenced its interrogation. The record simply shows that the defendant did in fact confess a short time after being turned over to the FBI following interrogation by local police. Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover's point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed. </s> We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station - in the same compelling surroundings. Thus, in obtaining a confession from Westover [384 U.S. 436, 497] the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege. </s> No. 584. California v. Stewart. </s> In the course of investigating a series of purse-snatch robberies in which one of the victims had died of injuries inflicted by her assailant, respondent, Roy Allen Stewart, was pointed out to Los Angeles police as the endorser of dividend checks taken in one of the robberies. At about 7:15 p. m., January 31, 1963, police officers went to Stewart's house and arrested him. One of the officers asked Stewart if they could search the house, to which he replied, "Go ahead." The search turned up various items taken from the five robbery victims. At the time of Stewart's arrest, police also arrested Stewart's wife and three other persons who were visiting him. These four were jailed along with Stewart and were interrogated. Stewart was taken to the University Station of the Los Angeles Police Department where he was placed in a cell. During the next five days, police interrogated Stewart on nine different occasions. Except during the first interrogation session, when he was confronted with an accusing witness, Stewart was isolated with his interrogators. </s> During the ninth interrogation session, Stewart admitted that he had robbed the deceased and stated that he had not meant to hurt her. Police then brought Stewart before a magistrate for the first time. Since there was no evidence to connect them with any crime, the police then released the other four persons arrested with him. </s> Nothing in the record specifically indicates whether Stewart was or was not advised of his right to remain silent or his right to counsel. In a number of instances, [384 U.S. 436, 498] however, the interrogating officers were asked to recount everything that was said during the interrogations. None indicated that Stewart was ever advised of his rights. </s> Stewart was charged with kidnapping to commit robbery, rape, and murder. At his trial, transcripts of the first interrogation and the confession at the last interrogation were introduced in evidence. The jury found Stewart guilty of robbery and first degree murder and fixed the penalty as death. On appeal, the Supreme Court of California reversed. 62 Cal. 2d 571, 400 P.2d 97, 43 Cal. Rptr. 201. It held that under this Court's decision in Escobedo, Stewart should have been advised of his right to remain silent and of his right to counsel and that it would not presume in the face of a silent record that the police advised Stewart of his rights. 70 </s> We affirm. 71 In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of [384 U.S. 436, 499] these rights be assumed on a silent record. Furthermore, Stewart's steadfast denial of the alleged offenses through eight of the nine interrogations over a period of five days is subject to no other construction than that he was compelled by persistent interrogation to forgo his Fifth Amendment privilege. </s> Therefore, in accordance with the foregoing, the judgments of the Supreme Court of Arizona in No. 759, of the New York Court of Appeals in No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761 are reversed. The judgment of the Supreme Court of California in No. 584 is affirmed. </s> It is so ordered. </s> Footnotes [Footnote 1 Compare United States v. Childress, 347 F.2d 448 (C. A. 7th Cir. 1965), with Collins v. Beto, 348 F.2d 823 (C. A. 5th Cir. 1965). Compare People v. Dorado, 62 Cal. 2d 338, 398 P.2d 361, 42 Cal. Rptr. 169 (1964) with People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33 (1964). </s> [Footnote 2 See, e. g., Enker & Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois, 49 Minn. L. Rev. 47 (1964); Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449 (1964); Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1 (1965); Dowling, Escobedo and [384 U.S. 436, 441] Beyond: The Need for a Fourteenth Amendment Code of Criminal Procedure, 56 J. Crim. L., C. & P. S. 143, 156 (1965). </s> The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties, 12 U. C. L. A. L. Rev. 13 (1964), with Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929 (1965). </s> [Footnote 3 For example, the Los Angeles Police Chief stated that "If the police are required . . . to . . . establish that the defendant was apprised of his constitutional guarantees of silence and legal counsel prior to the uttering of any admission or confession, and that he intelligently waived these guarantees . . . a whole Pandora's box is opened as to under what circumstances . . . can a defendant intelligently waive these rights. . . . Allegations that modern criminal investigation can compensate for the lack of a confession or admission in every criminal case is totally absurd!" Parker, 40 L. A. Bar Bull. 603, 607, 642 (1965). His prosecutorial counterpart, District Attorney Younger, stated that "[I]t begins to appear that many of these seemingly restrictive decisions are going to contribute directly to a more effective, efficient and professional level of law enforcement." L. A. Times, Oct. 2, 1965, p. 1. The former Police Commissioner of New York, Michael J. Murphy, stated of Escobedo: "What the Court is doing is akin to requiring one boxer to fight by Marquis of Queensbury rules while permitting the other to butt, gouge and bite." N. Y. Times, May 14, 1965, p. 39. The former United States Attorney for the District of Columbia, David C. Acheson, who is presently Special Assistant to the Secretary of the Treasury (for Enforcement), and directly in charge of the Secret Service and the Bureau of Narcotics, observed that "Prosecution procedure has, at most, only the most remote causal connection with crime. Changes in court decisions and prosecution procedure would have about the same effect on the crime rate as an aspirin would have on a tumor of the brain." Quoted in Herman, supra, n. 2, at 500, n. 270. Other views on the subject in general are collected in Weisberg, Police Interrogation of Arrested Persons: A Skeptical View, 52 J. Crim. L., C. & P. S. 21 (1961). </s> [Footnote 4 This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused. </s> [Footnote 5 See, for example, IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931) [384 U.S. 436, 446] [Wickersham Report]; Booth, Confessions, and Methods Employed in Procuring Them, 4 So. Calif. L. Rev. 83 (1930); Kauper, Judicial Examination of the Accused - A Remedy for the Third Degree, 30 Mich. L. Rev. 1224 (1932). It is significant that instances of third-degree treatment of prisoners almost invariably took place during the period between arrest and preliminary examination. Wickersham Report, at 169; Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. Chi. L. Rev. 345, 357 (1936). See also Foote, Law and Police Practice: Safeguards in the Law of Arrest, 52 Nw. U. L. Rev. 16 (1957). </s> [Footnote 6 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Vernon v. Alabama, 313 U.S. 547 (1941); Ward v. Texas, 316 U.S. 547 (1942); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Malinski v. New York, 324 U.S. 401 (1945); Leyra v. Denno, 347 U.S. 556 (1954). See also Williams v. United States, 341 U.S. 97 (1951). </s> [Footnote 7 In addition, see People v. Wakat, 415 Ill. 610, 114 N. E. 2d 706 (1953); Wakat v. Harlib, 253 F.2d 59 (C. A. 7th Cir. 1958) (defendant suffering from broken bones, multiple bruises and injuries sufficiently serious to require eight months' medical treatment after being manhandled by five policemen); Kier v. State, 213 Md. 556, 132 A. 2d 494 (1957) (police doctor told accused, who was [384 U.S. 436, 447] strapped to a chair completely nude, that he proposed to take hair and skin scrapings from anything that looked like blood or sperm from various parts of his body); Bruner v. People, 113 Colo. 194, 156 P.2d 111 (1945) (defendant held in custody over two months, deprived of food for 15 hours, forced to submit to a lie detector test when he wanted to go to the toilet); People v. Matlock, 51 Cal. 2d 682, 336 P.2d 505 (1959) (defendant questioned incessantly over an evening's time, made to lie on cold board and to answer questions whenever it appeared he was getting sleepy). Other cases are documented in American Civil Liberties Union, Illinois Division, Secret Detention by the Chicago Police (1959); Potts, The Preliminary Examination and "The Third Degree," 2 Baylor L. Rev. 131 (1950); Sterling, Police Interrogation and the Psychology of Confession, 14 J. Pub. L. 25 (1965). </s> [Footnote 8 The manuals quoted in the text following are the most recent and representative of the texts currently available. Material of the same nature appears in Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951); Dienstein, Technics for the Crime Investigator 97-115 (1952). Studies concerning the observed practices of the police appear in LaFave, Arrest: The Decision To Take a Suspect Into Custody 244-437, 490-521 (1965); LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash. U. L. Q. 331; Barrett, Police Practices and the Law - From Arrest to Release or Charge, 50 Calif. L. Rev. 11 (1962); Sterling, supra, n. 7, at 47-65. </s> [Footnote 9 The methods described in Inbau & Reid, Criminal Interrogation and Confessions (1962), are a revision and enlargement of material presented in three prior editions of a predecessor text, Lie Detection and Criminal Interrogation (3d ed. 1953). The authors and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year period. They say that the techniques portrayed in their manuals reflect their experiences and are the most effective psychological stratagems to employ during interrogations. Similarly, the techniques described in O'Hara, Fundamentals of Criminal Investigation (1956), were gleaned from long service as observer, lecturer in police science, and work as a federal criminal investigator. All these texts have had rather extensive use among law enforcement agencies and among students of police science, with total sales and circulation of over 44,000. </s> [Footnote 10 Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1. </s> [Footnote 11 O'Hara, supra, at 99. </s> [Footnote 12 Inbau & Reid, supra, at 34-43, 87. For example, in Leyra v. Denno, 347 U.S. 556 (1954), the interrogator-psychiatrist told the accused, "We do sometimes things that are not right, but in a fit of temper or anger we sometimes do things we aren't really responsible for," id., at 562, and again, "We know that morally you were just in anger. Morally, you are not to be condemned," id., at 582. </s> [Footnote 13 Inbau & Reid, supra, at 43-55. </s> [Footnote 14 O'Hara, supra, at 112. </s> [Footnote 15 Inbau & Reid, supra, at 40. </s> [Footnote 16 Ibid. </s> [Footnote 17 O'Hara, supra, at 104, Inbau & Reid, supra, at 58-59. See Spano v. New York, 360 U.S. 315 (1959). A variant on the technique [384 U.S. 436, 453] of creating hostility is one of engendering fear. This is perhaps best described by the prosecuting attorney in Malinski v. New York, 324 U.S. 401, 407 (1945): "Why this talk about being undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology - let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking." </s> [Footnote 18 O'Hara, supra, at 105-106. </s> [Footnote 19 Id., at 106. </s> [Footnote 20 Inbau & Reid, supra, at 111. </s> [Footnote 21 Ibid. </s> [Footnote 22 Inbau & Reid, supra, at 112. </s> [Footnote 23 Inbau & Reid, Lie Detection and Criminal Interrogation 185 (3d ed. 1953). </s> [Footnote 24 Interrogation procedures may even give rise to a false confession. The most recent conspicuous example occurred in New York, in 1964, when a Negro of limited intelligence confessed to two brutal murders and a rape which he had not committed. When this was discovered, the prosecutor was reported as saying: "Call it what you want - brain-washing, hypnosis, fright. They made him give an untrue confession. The only thing I don't believe is that Whitmore was beaten." N. Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances, similar events had occurred. N. Y. Times, Oct. 20, 1964, p. 22, col. 1; N. Y. Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the Innocent (1932); Frank & Frank, Not Guilty (1957). </s> [Footnote 25 In the fourth confession case decided by the Court in the 1962 Term, Fay v. Noia, 372 U.S. 391 (1963), our disposition made it unnecessary to delve at length into the facts. The facts of the defendant's case there, however, paralleled those of his co-defendants, whose confessions were found to have resulted from continuous and coercive interrogation for 27 hours, with denial of requests for friends or attorney. See United States v. Murphy, 222 F.2d 698 (C. A. 2d Cir. 1955) (Frank, J.); People v. Bonino, 1 N. Y. 2d 752, 135 N. E. 2d 51 (1956). </s> [Footnote 26 The absurdity of denying that a confession obtained under these circumstances is compelled is aptly portrayed by an example in Professor [384 U.S. 436, 458] Sutherland's recent article, Crime and Confession, 79 Harv. L. Rev. 21, 37 (1965): </s> "Suppose a well-to-do testatrix says she intends to will her property to Elizabeth. John and James want her to bequeath it to them instead. They capture the testatrix, put her in a carefully designed room, out of touch with everyone but themselves and their convenient `witnesses,' keep her secluded there for hours while they make insistent demands, weary her with contradictions of her assertions that she wants to leave her money to Elizabeth, and finally induce her to execute the will in their favor. Assume that John and James are deeply and correctly convinced that Elizabeth is unworthy and will make base use of the property if she gets her hands on it, whereas John and James have the noblest and most righteous intentions. Would any judge of probate accept the will so procured as the `voluntary' act of the testatrix?" </s> [Footnote 27 Thirteenth century commentators found an analogue to the privilege grounded in the Bible. "To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree." Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, § 6, III Yale Judaica Series 52-53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956). </s> [Footnote 28 See Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 9-11 (1949); 8 Wigmore, Evidence 289-295 (McNaughton rev. 1961). See also Lowell, The Judicial Use of Torture, Parts I and II, 11 Harv. L. Rev. 220, 290 (1897). </s> [Footnote 29 See Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763 (1935); Ullmann v. United States, 350 U.S. 422, 445 -449 (1956) (DOUGLAS, J., dissenting). </s> [Footnote 30 Compare Brown v. Walker, 161 U.S. 591 (1896); Quinn v. United States, 349 U.S. 155 (1955). </s> [Footnote 31 Brief for the United States, p. 28. To the same effect, see Brief for the United States, pp. 40-49, n. 44, Anderson v. United States, 318 U.S. 350 (1943); Brief for the United States, pp. 17-18, McNabb v. United States, 318 U.S. 332 (1943). </s> [Footnote 32 Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder. See generally, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L. J. 1 (1958). </s> [Footnote 33 The decisions of this Court have guaranteed the same procedural protection for the defendant whether his confession was used in a federal or state court. It is now axiomatic that the defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers v. Richmond, 365 U.S. 534, 544 (1961); Wan v. United States, 266 U.S. 1 (1924). This is so even if there is ample evidence aside from the confession to support the conviction, e. g., Malinski v. New York, 324 U.S. 401, 404 (1945); Bram v. United States, 168 U.S. 532, 540 -542 (1897). Both state and federal courts now adhere to trial procedures which seek to assure a reliable and clear-cut determination of the voluntariness of the confession offered at trial, Jackson v. Denno, 378 U.S. 368 (1964); United States v. Carignan, 342 U.S. 36, 38 (1951); see also Wilson v. United States, 162 U.S. 613, 624 (1896). Appellate review is exacting, see Haynes v. Washington, 373 U.S. 503 (1963); Blackburn v. Alabama, 361 U.S. 199 (1960). Whether his conviction was in a federal or state court, the defendant may secure a post-conviction hearing based on the alleged involuntary character of his confession, provided he meets the procedural requirements, Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). In addition, see Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). </s> [Footnote 34 See Lisenba v. California, 314 U.S. 219, 241 (1941); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Malinski v. New York, 324 U.S. 401 (1945); Spano v. New York, 360 U.S. 315 (1959); Lynumn v. Illinois, 372 U.S. 528 (1963); Haynes v. Washington, 373 U.S. 503 (1963). </s> [Footnote 35 The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its [384 U.S. 436, 466] wake. See People v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d 628, 243 N. Y. S. 2d 841 (1963) (Fuld, J.). </s> [Footnote 36 In re Groban, 352 U.S. 330, 340 -352 (1957) (BLACK, J., dissenting); Note, 73 Yale L. J. 1000, 1048-1051 (1964); Comment, 31 U. Chi. L. Rev. 313, 320 (1964) and authorities cited. </s> [Footnote 37 See p. 454, supra. Lord Devlin has commented: </s> "It is probable that even today, when there is much less ignorance about these matters than formerly, there is still a general belief that you must answer all questions put to you by a policeman, or at least that it will be the worse for you if you do not." Devlin, The Criminal Prosecution in England 32 (1958). </s> In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, 378 U.S. 1, 8 (1964); Comment, 31 U. Chi. L. Rev. 556 (1964); Developments in the Law - Confessions, 79 Harv. L. Rev. 935, 1041-1044 (1966). See also Bram v. United States, 168 U.S. 532, 562 (1897). </s> [Footnote 38 Cf. Betts v. Brady, 316 U.S. 455 (1942), and the recurrent inquiry into special circumstances it necessitated. See generally, Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich. L. Rev. 219 (1962). </s> [Footnote 39 See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449, 480 (1964). </s> [Footnote 40 Estimates of 50-90% indigency among felony defendants have been reported. Pollock, Equal Justice in Practice, 45 Minn. L. Rev. 737, 738-739 (1961); Birzon, Kasanof & Forma, The Right to Counsel and the Indigent Accused in Courts of Criminal Jurisdiction in New York State, 14 Buffalo L. Rev. 428, 433 (1965). </s> [Footnote 41 See Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 64-81 (1965). As was stated in the Report of the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice 9 (1963): </s> "When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused's liability or penalty. While government [384 U.S. 436, 473] may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice." </s> [Footnote 42 Cf. United States ex rel. Brown v. Fay, 242 F. Supp. 273, 277 (D.C. S. D. N. Y. 1965); People v. Witenski, 15 N. Y. 2d 392, 207 N. E. 2d 358, 259 N. Y. S. 2d 413 (1965). </s> [Footnote 43 While a warning that the indigent may have counsel appointed need not be given to the person who is known to have an attorney or is known to have ample funds to secure one, the expedient of giving a warning is too simple and the rights involved too important to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score. </s> [Footnote 44 If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements. </s> [Footnote 45 Although this Court held in Rogers v. United States, 340 U.S. 367 (1951), over strong dissent, that a witness before a grand jury may not in certain circumstances decide to answer some questions and then refuse to answer others, that decision has no application to the interrogation situation we deal with today. No legislative or judicial fact-finding authority is involved here, nor is there a possibility that the individual might make self-serving statements of which he could make use at trial while refusing to answer incriminating statements. </s> [Footnote 46 The distinction and its significance has been aptly described in the opinion of a Scottish court: </s> "In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice may be, it must normally create a situation very unfavorable to the suspect." Chalmers v. H. M. Advocate, 1954. Sess. Cas. 66, 78 (J. C.). </s> [Footnote 47 See People v. Dorado, 62 Cal. 2d 338, 354, 398 P.2d 361, 371, 42 Cal. Rptr. 169, 179 (1965). </s> [Footnote 48 In accordance with our holdings today and in Escobedo v. Illinois, 378 U.S. 478, 492 , Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. Lagay, 357 U.S. 504 (1958) are not to be followed. </s> [Footnote 49 In quoting the above from the dissenting opinion of Mr. Justice Brandeis we, of course, do not intend to pass on the constitutional questions involved in the Olmstead case. </s> [Footnote 50 Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956). </s> [Footnote 51 Miranda, Vignera, and Westover were identified by eyewitnesses. Marked bills from the bank robbed were found in Westover's car. Articles stolen from the victim as well as from several other robbery victims were found in Stewart's home at the outset of the investigation. </s> [Footnote 52 Dealing as we do here with constitutional standards in relation to statements made, the existence of independent corroborating evidence produced at trial is, of course, irrelevant to our decisions. Haynes v. Washington, 373 U.S. 503, 518 -519 (1963); Lynumn v. [384 U.S. 436, 482] Illinois, 372 U.S. 528, 537 -538 (1963); Rogers v. Richmond, 365 U.S. 534, 541 (1961); Blackburn v. Alabama, 361 U.S. 199, 206 (1960). </s> [Footnote 53 See, e. g., Report and Recommendations of the [District of Columbia] Commissioners' Committee on Police Arrests for Investigation (1962); American Civil Liberties Union, Secret Detention by the Chicago Police (1959). An extreme example of this practice occurred in the District of Columbia in 1958. Seeking three "stocky" young Negroes who had robbed a restaurant, police rounded up 90 persons of that general description. Sixty-three were held overnight [384 U.S. 436, 483] before being released for lack of evidence. A man not among the 90 arrested was ultimately charged with the crime. Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a Subcommittee of the Senate Judiciary Committee on H. R. 11477, S. 2970, S. 3325, and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78. </s> [Footnote 54 In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated: </s> "Law enforcement, however, in defeating the criminal, must maintain inviolate the historic liberties of the individual. To turn back the criminal, yet, by so doing, destroy the dignity of the individual, would be a hollow victory. </s> . . . . . </s> "We can have the Constitution, the best laws in the land, and the most honest reviews by courts - but unless the law enforcement profession is steeped in the democratic tradition, maintains the highest in ethics, and makes its work a career of honor, civil liberties will continually - and without end - be violated. . . . The best protection of civil liberties is an alert, intelligent and honest law enforcement agency. There can be no alternative. </s> . . . . . </s> ". . . Special Agents are taught that any suspect or arrested person, at the outset of an interview, must be advised that he is not required to make a statement and that any statement given can be used against him in court. Moreover, the individual must be informed that, if he desires, he may obtain the services of an attorney of his own choice." </s> Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L. Rev. 175, 177-182 (1952). </s> [Footnote 55 We agree that the interviewing agent must exercise his judgment in determining whether the individual waives his right to counsel. Because of the constitutional basis of the right, however, the standard for waiver is necessarily high. And, of course, the ultimate responsibility for resolving this constitutional question lies with the courts. </s> [Footnote 56 Among the crimes within the enforcement jurisdiction of the FBI are kidnapping, 18 U.S.C. 1201 (1964 ed.), white slavery, 18 U.S.C. 2421-2423 (1964 ed.), bank robbery, 18 U.S.C. 2113 (1964 ed.), interstate transportation and sale of stolen property, 18 U.S.C. 2311-2317 (1964 ed.), all manner of conspiracies, 18 U.S.C. 371 (1964 ed.), and violations of civil rights, 18 U.S.C. 241-242 (1964 ed.). See also 18 U.S.C. 1114 (1964 ed.) (murder of officer or employee of the United States). </s> [Footnote 57 1964. Crim. L. Rev., at 166-170. These Rules provide in part: </s> "II. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence. </s> "The caution shall be in the following terms: </s> "`You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.' </s> "When after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present. </s> . . . . . </s> "III. . . . </s> . . . . . </s> "(b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. </s> . . . . . </s> "IV. All written statements made after caution shall be taken in the following manner: </s> "(a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says. </s> "He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. . . . </s> "(b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material. </s> . . . . . </s> "(d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to [384 U.S. 436, 488] make the statement coherent, intelligible and relevant to the material matters: he shall not prompt him." </s> The prior Rules appear in Devlin, The Criminal Prosecution in England 137-141 (1958). </s> Despite suggestions of some laxity in enforcement of the Rules and despite the fact some discretion as to admissibility is invested in the trial judge, the Rules are a significant influence in the English criminal law enforcement system. See, e. g., 1964. Crim. L. Rev., at 182; and articles collected in 1960. Crim. L. Rev., at 298-356. </s> [Footnote 58 The introduction to the Judges' Rules states in part: </s> "These Rules do not affect the principles </s> . . . . . </s> "(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so . . . ." 1964. Crim. L. Rev., at 166-167. </s> [Footnote 59 As stated by the Lord Justice General in Chalmers v. H. M. Advocate, 1954. Sess. Cas. 66, 78 (J. C.): </s> "The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e. g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice." </s> [Footnote 60 "No confession made to a police officer shall be proved as against a person accused of any offence." Indian Evidence Act 25. </s> "No confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." Indian Evidence Act 26. See 1 Ramaswami & Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate, suggesting: "[I]t would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession." Sarwan Singh v. State of Punjab, 44 All India Rep. 1957, Sup. Ct. 637, 644. </s> [Footnote 61 I Legislative Enactments of Ceylon 211 (1958). </s> [Footnote 62 10 U.S.C. 831 (b) (1964 ed.). </s> [Footnote 63 United States v. Rose, 24 CMR 251 (1957); United States v. Gunnels, 23 CMR 354 (1957). </s> [Footnote 64 Although no constitution existed at the time confessions were excluded by rule of evidence in 1872, India now has a written constitution which includes the provision that "No person accused of any offence shall be compelled to be a witness against himself." Constitution of India, Article 20 (3). See Tope, The Constitution of India 63-67 (1960). </s> [Footnote 65 Brief for United States in No. 761, Westover v. United States, pp. 44-47; Brief for the State of New York as amicus curiae, pp. 35-39. See also Brief for the National District Attorneys Association as amicus curiae, pp. 23-26. </s> [Footnote 66 Miranda was also convicted in a separate trial on an unrelated robbery charge not presented here for review. A statement introduced at that trial was obtained from Miranda during the same interrogation which resulted in the confession involved here. At the robbery trial, one officer testified that during the interrogation he did not tell Miranda that anything he said would be held against him or that he could consult with an attorney. The other officer stated that they had both told Miranda that anything he said would be used against him and that he was not required by law to tell them anything. </s> [Footnote 67 One of the officers testified that he read this paragraph to Miranda. Apparently, however, he did not do so until after Miranda had confessed orally. </s> [Footnote 68 Vignera thereafter successfully attacked the validity of one of the prior convictions, Vignera v. Wilkins, Civ. 9901 (D.C. W. D. N. Y. Dec. 31, 1961) (unreported), but was then resentenced as a second-felony offender to the same term of imprisonment as the original sentence. R. 31-33. </s> [Footnote 69 The failure of defense counsel to object to the introduction of the confession at trial, noted by the Court of Appeals and emphasized by the Solicitor General, does not preclude our consideration of the issue. Since the trial was held prior to our decision in Escobedo and, of course, prior to our decision today making the [384 U.S. 436, 496] objection available, the failure to object at trial does not constitute a waiver of the claim. See, e. g., United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (C. A. 2d Cir. 1964), aff'd, 381 U.S. 654 (1965). Cf. Ziffrin, Inc. v. United States, 318 U.S. 73, 78 (1943). </s> [Footnote 70 Because of this disposition of the case, the California Supreme Court did not reach the claims that the confession was coerced by police threats to hold his ailing wife in custody until he confessed, that there was no hearing as required by Jackson v. Denno, 378 U.S. 368 (1964), and that the trial judge gave an instruction condemned by the California Supreme Court's decision in People v. Morse, 60 Cal. 2d 631, 388 P.2d 33, 36 Cal. Rptr. 201 (1964). </s> [Footnote 71 After certiorari was granted in this case, respondent moved to dismiss on the ground that there was no final judgment from which the State could appeal since the judgment below directed that he be retried. In the event respondent was successful in obtaining an acquittal on retrial, however, under California law the State would have no appeal. Satisfied that in these circumstances the decision below constituted a final judgment under 28 U.S.C. 1257 (3) (1964 ed.), we denied the motion. 383 U.S. 903 . </s> MR. JUSTICE CLARK, dissenting in Nos. 759, 760, and 761, and concurring in the result in No. 584. </s> It is with regret that I find it necessary to write in these cases. However, I am unable to join the majority because its opinion goes too far on too little, while my dissenting brethren do not go quite far enough. Nor can I join in the Court's criticism of the present practices of police and investigatory agencies as to custodial interrogation. The materials it refers to as "police manuals" 1 are, as I read them, merely writings in this field by professors and some police officers. Not one is shown by the record here to be the official manual of any police department, much less in universal use in crime detection. Moreover, the examples of police brutality mentioned by the Court 2 are rare exceptions to the thousands of cases [384 U.S. 436, 500] that appear every year in the law reports. The police agencies - all the way from municipal and state forces to the federal bureaus - are responsible for law enforcement and public safety in this country. I am proud of their efforts, which in my view are not fairly characterized by the Court's opinion. </s> I. </s> The ipse dixit of the majority has no support in our cases. Indeed, the Court admits that "we might not find the defendants' statements [here] to have been involuntary in traditional terms." Ante, p. 457. In short, the Court has added more to the requirements that the accused is entitled to consult with his lawyer and that he must be given the traditional warning that he may remain silent and that anything that he says may be used against him. Escobedo v. Illinois, 378 U.S. 478, 490 -491 (1964). Now, the Court fashions a constitutional rule that the police may engage in no custodial interrogation without additionally advising the accused that he has a right under the Fifth Amendment to the presence of counsel during interrogation and that, if he is without funds, counsel will be furnished him. When at any point during an interrogation the accused seeks affirmatively or impliedly to invoke his rights to silence or counsel, interrogation must be forgone or postponed. The Court further holds that failure to follow the new procedures requires inexorably the exclusion of any statement by the accused, as well as the fruits thereof. Such a strict constitutional specific inserted at the nerve center of crime detection may well kill the patient. 3 </s> [384 U.S. 436, 501] Since there is at this time a paucity of information and an almost total lack of empirical knowledge on the practical operation of requirements truly comparable to those announced by the majority, I would be more restrained lest we go too far too fast. </s> II. </s> Custodial interrogation has long been recognized as "undoubtedly an essential tool in effective law enforcement." Haynes v. Washington, 373 U.S. 503, 515 (1963). Recognition of this fact should put us on guard against the promulgation of doctrinaire rules. Especially is this true where the Court finds that "the Constitution has prescribed" its holding and where the light of our past cases, from Hopt v. Utah, 110 U.S. 574 , (1884), down to Haynes v. Washington, supra, is to [384 U.S. 436, 502] the contrary. Indeed, even in Escobedo the Court never hinted that an affirmative "waiver" was a prerequisite to questioning; that the burden of proof as to waiver was on the prosecution; that the presence of counsel - absent a waiver - during interrogation was required; that a waiver can be withdrawn at the will of the accused; that counsel must be furnished during an accusatory stage to those unable to pay; nor that admissions and exculpatory statements are "confessions." To require all those things at one gulp should cause the Court to choke over more cases than Crooker v. California, 357 U.S. 433 (1958), and Cicenia v. Lagay, 357 U.S. 504 (1958), which it expressly overrules today. </s> The rule prior to today - as Mr. Justice Goldberg, the author of the Court's opinion in Escobedo, stated it in Haynes v. Washington - depended upon "a totality of circumstances evidencing an involuntary . . . admission of guilt." 373 U.S., at 514 . And he concluded: </s> "Of course, detection and solution of crime is, at best, a difficult and arduous task requiring determination and persistence on the part of all responsible officers charged with the duty of law enforcement. And, certainly, we do not mean to suggest that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential tool in effective law enforcement. The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused. . . . We are here impelled to the conclusion, from all of the facts presented, that the bounds of due process have been exceeded." Id., at 514-515. [384 U.S. 436, 503] </s> III. </s> I would continue to follow that rule. Under the "totality of circumstances" rule of which my Brother Goldberg spoke in Haynes, I would consider in each case whether the police officer prior to custodial interrogation added the warning that the suspect might have counsel present at the interrogation and, further, that a court would appoint one at his request if he was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary. </s> Rather than employing the arbitrary Fifth Amendment rule 4 which the Court lays down I would follow the more pliable dictates of the Due Process Clauses of the Fifth and Fourteenth Amendments which we are accustomed to administering and which we know from our cases are effective instruments in protecting persons in police custody. In this way we would not be acting in the dark nor in one full sweep changing the traditional rules of custodial interrogation which this Court has for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society. It will be soon enough to go further when we are able to appraise with somewhat better accuracy the effect of such a holding. </s> I would affirm the convictions in Miranda v. Arizona, No. 759; Vignera v. New York, No. 760; and Westover v. United States, No. 761. In each of those cases I find from the circumstances no warrant for reversal. In [384 U.S. 436, 504] California v. Stewart, No. 584, I would dismiss the writ of certiorari for want of a final judgment, 28 U.S.C. 1257 (3) (1964 ed.); but if the merits are to be reached I would affirm on the ground that the State failed to fulfill its burden, in the absence of a showing that appropriate warnings were given, of proving a waiver or a totality of circumstances showing voluntariness. Should there be a retrial, I would leave the State free to attempt to prove these elements. </s> [Footnote 1 E. g., Inbau & Reid, Criminal Interrogation and Confessions (1962); O'Hara, Fundamentals of Criminal Investigation (1956); Dienstein, Technics for the Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police Interrogation (1940). </s> [Footnote 2 As developed by my Brother HARLAN, post, pp. 506-514, such cases, with the exception of the long-discredited decision in Bram v. United States, 168 U.S. 532 (1897), were adequately treated in terms of due process. </s> [Footnote 3 The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As my Brother HARLAN points out, post, pp. 521-523, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General's letter, ante, pp. 484-486, to be as strict as [384 U.S. 436, 501] those imposed today in at least two respects: (1) The offer of counsel is articulated only as "a right to counsel"; nothing is said about a right to have counsel present at the custodial interrogation. (See also the examples cited by the Solicitor General, Westover v. United States, 342 F.2d 684, 685 (1965) ("right to consult counsel"); Jackson v. United States, 337 F.2d 136, 138 (1964) (accused "entitled to an attorney").) Indeed, the practice is that whenever the suspect "decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point . . . . When counsel appears in person, he is permitted to confer with his client in private." This clearly indicates that the FBI does not warn that counsel may be present during custodial interrogation. (2) The Solicitor General's letter states: "[T]hose who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, [are advised] of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge." So phrased, this warning does not indicate that the agent will secure counsel. Rather, the statement may well be interpreted by the suspect to mean that the burden is placed upon himself and that he may have counsel appointed only when brought before the judge or at trial - but not at custodial interrogation. As I view the FBI practice, it is not as broad as the one laid down today by the Court. </s> [Footnote 4 In my view there is "no significant support" in our cases for the holding of the Court today that the Fifth Amendment privilege, in effect, forbids custodial interrogation. For a discussion of this point see the dissenting opinion of my Brother WHITE, post, pp. 526-531. </s> MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting. </s> I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now once all sides of the problem are considered. </s> I. INTRODUCTION. </s> At the outset, it is well to note exactly what is required by the Court's new constitutional code of rules for confessions. The foremost requirement, upon which later admissibility of a confession depends, is that a fourfold warning be given to a person in custody before he is questioned, namely, that he has a right to remain silent, that anything he says may be used against him, that he has a right to have present an attorney during the questioning, and that if indigent he has a right to a lawyer without charge. To forgo these rights, some affirmative statement of rejection is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden. If before or during questioning the suspect seeks to invoke his right to remain silent, interrogation must be forgone or cease; a request for counsel [384 U.S. 436, 505] brings about the same result until a lawyer is procured. Finally, there are a miscellany of minor directives, for example, the burden of proof of waiver is on the State, admissions and exculpatory statements are treated just like confessions, withdrawal of a waiver is always permitted, and so forth. 1 </s> While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward "voluntariness" in a utopian sense, or to view it from a different angle, voluntariness with a vengeance. </s> To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such strains. I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the circumstances. [384 U.S. 436, 506] </s> II. CONSTITUTIONAL PREMISES. </s> It is most fitting to begin an inquiry into the constitutional precedents by surveying the limits on confessions the Court has evolved under the Due Process Clause of the Fourteenth Amendment. This is so because these cases show that there exists a workable and effective means of dealing with confessions in a judicial manner; because the cases are the baseline from which the Court now departs and so serve to measure the actual as opposed to the professed distance it travels; and because examination of them helps reveal how the Court has coasted into its present position. </s> The earliest confession cases in this Court emerged from federal prosecutions and were settled on a nonconstitutional basis, the Court adopting the common-law rule that the absence of inducements, promises, and threats made a confession voluntary and admissible. Hopt v. Utah, 110 U.S. 574 ; Pierce v. United States, 160 U.S. 355 . While a later case said the Fifth Amendment privilege controlled admissibility, this proposition was not itself developed in subsequent decisions. 2 The Court did, however, heighten the test of admissibility in federal trials to one of voluntariness "in fact," Wan v. [384 U.S. 436, 507] United States, 266 U.S. 1, 14 (quoted, ante, p. 462), and then by and large left federal judges to apply the same standards the Court began to derive in a string of state court cases. </s> This new line of decisions, testing admissibility by the Due Process Clause, began in 1936 with Brown v. Mississippi, 297 U.S. 278 , and must now embrace somewhat more than 30 full opinions of the Court. 3 While the voluntariness rubric was repeated in many instances, e. g., Lyons v. Oklahoma, 322 U.S. 596 , the Court never pinned it down to a single meaning but on the contrary infused it with a number of different values. To travel quickly over the main themes, there was an initial emphasis on reliability, e. g., Ward v. Texas, 316 U.S. 547 , supplemented by concern over the legality and fairness of the police practices, e. g., Ashcraft v. Tennessee, 322 U.S. 143 , in an "accusatorial" system of law enforcement, Watts v. Indiana, 338 U.S. 49, 54 , and eventually by close attention to the individual's state of mind and capacity for effective choice, e. g., Gallegos v. Colorado, 370 U.S. 49 . The outcome was a continuing re-evaluation on the facts of each case of how much pressure on the suspect was permissible. 4 </s> [384 U.S. 436, 508] </s> Among the criteria often taken into account were threats or imminent danger, e. g., Payne v. Arkansas, 356 U.S. 560 , physical deprivations such as lack of sleep or food, e. g., Reck v. Pate, 367 U.S. 433 , repeated or extended interrogation, e. g., Chambers v. Florida, 309 U.S. 227 , limits on access to counsel or friends, Crooker v. California, 357 U.S. 433 ; Cicenia v. Lagay, 357 U.S. 504 , length and illegality of detention under state law, e. g., Haynes v. Washington, 373 U.S. 503 , and individual weakness or incapacities, Lynumn v. Illinois, 372 U.S. 528 . Apart from direct physical coercion, however, no single default or fixed combination of defaults guaranteed exclusion, and synopses of the cases would serve little use because the overall gauge has been steadily changing, usually in the direction of restricting admissibility. But to mark just what point had been reached before the Court jumped the rails in Escobedo v. Illinois, 378 U.S. 478 , it is worth capsulizing the then-recent case of Haynes v. Washington, 373 U.S. 503 . There, Haynes had been held some 16 or more hours in violation of state law before signing the disputed confession, had received no warnings of any kind, and despite requests had been refused access to his wife or to counsel, the police indicating that access would be allowed after a confession. Emphasizing especially this last inducement and rejecting some contrary indicia of voluntariness, the Court in a 5-to-4 decision held the confession inadmissible. </s> There are several relevant lessons to be drawn from this constitutional history. The first is that with over 25 years of precedent the Court has developed an elaborate, sophisticated, and sensitive approach to admissibility of confessions. It is "judicial" in its treatment of one case at a time, see Culombe v. Connecticut, 367 U.S. 568, 635 (concurring opinion of THE CHIEF JUSTICE), flexible in its ability to respond to the endless mutations of fact presented, and ever more familiar to the lower courts. [384 U.S. 436, 509] Of course, strict certainty is not obtained in this developing process, but this is often so with constitutional principles, and disagreement is usually confined to that borderland of close cases where it matters least. </s> The second point is that in practice and from time to time in principle, the Court has given ample recognition to society's interest in suspect questioning as an instrument of law enforcement. Cases countenancing quite significant pressures can be cited without difficulty, 5 and the lower courts may often have been yet more tolerant. Of course the limitations imposed today were rejected by necessary implication in case after case, the right to warnings having been explicitly rebuffed in this Court many years ago. Powers v. United States, 223 U.S. 303 ; Wilson v. United States, 162 U.S. 613 . As recently as Haynes v. Washington, 373 U.S. 503, 515 , the Court openly acknowledged that questioning of witnesses and suspects "is undoubtedly an essential tool in effective law enforcement." Accord, Crooker v. California, 357 U.S. 433, 441 . </s> Finally, the cases disclose that the language in many of the opinions overstates the actual course of decision. It has been said, for example, that an admissible confession must be made by the suspect "in the unfettered exercise of his own will," Malloy v. Hogan, 378 U.S. 1, 8 , and that "a prisoner is not `to be made the deluded instrument of his own conviction,'" Culombe v. Connecticut, 367 U.S. 568, 581 (Frankfurter, J., announcing the Court's judgment and an opinion). Though often repeated, such principles are rarely observed in full measure. Even the word "voluntary" may be deemed somewhat [384 U.S. 436, 510] misleading, especially when one considers many of the confessions that have been brought under its umbrella. See, e. g., supra, n. 5. The tendency to overstate may be laid in part to the flagrant facts often before the Court; but in any event one must recognize how it has tempered attitudes and lent some color of authority to the approach now taken by the Court. </s> I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a trompe l'oeil. The Court's opinion in my view reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station. Far more important, it fails to show that the Court's new rules are well supported, let alone compelled, by Fifth Amendment precedents. Instead, the new rules actually derive from quotation and analogy drawn from precedents under the Sixth Amendment, which should properly have no bearing on police interrogation. </s> The Court's opening contention, that the Fifth Amendment governs police station confessions, is perhaps not an impermissible extension of the law but it has little to commend itself in the present circumstances. Historically, the privilege against self-incrimination did not bear at all on the use of extra-legal confessions, for which distinct standards evolved; indeed, "the history of the two principles is wide apart, differing by one hundred years in origin, and derived through separate lines of precedents . . . ." 8 Wigmore, Evidence 2266, at 401 (McNaughton rev. 1961). Practice under the two doctrines has also differed in a number of important respects. 6 </s> [384 U.S. 436, 511] Even those who would readily enlarge the privilege must concede some linguistic difficulties since the Fifth Amendment in terms proscribes only compelling any person "in any criminal case to be a witness against himself." Cf. Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 25-26 (1965). </s> Though weighty, I do not say these points and similar ones are conclusive, for, as the Court reiterates, the privilege embodies basic principles always capable of expansion. 7 Certainly the privilege does represent a protective concern for the accused and an emphasis upon accusatorial rather than inquisitorial values in law enforcement, although this is similarly true of other limitations such as the grand jury requirement and the reasonable doubt standard. Accusatorial values, however, have openly been absorbed into the due process standard governing confessions; this indeed is why at present "the kinship of the two rules [governing confessions and self-incrimination] is too apparent for denial." McCormick, Evidence 155 (1954). Since extension of the general principle has already occurred, to insist that the privilege applies as such serves only to carry over inapposite historical details and engaging rhetoric and to obscure the policy choices to be made in regulating confessions. </s> Having decided that the Fifth Amendment privilege does apply in the police station, the Court reveals that the privilege imposes more exacting restrictions than does the Fourteenth Amendment's voluntariness test. 8 </s> [384 U.S. 436, 512] It then emerges from a discussion of Escobedo that the Fifth Amendment requires for an admissible confession that it be given by one distinctly aware of his right not to speak and shielded from "the compelling atmosphere" of interrogation. See ante, pp. 465-466. From these key premises, the Court finally develops the safeguards of warning, counsel, and so forth. I do not believe these premises are sustained by precedents under the Fifth Amendment. 9 </s> The more important premise is that pressure on the suspect must be eliminated though it be only the subtle influence of the atmosphere and surroundings. The Fifth Amendment, however, has never been thought to forbid all pressure to incriminate one's self in the situations covered by it. On the contrary, it has been held that failure to incriminate one's self can result in denial of removal of one's case from state to federal court, Maryland v. Soper, 270 U.S. 9 ; in refusal of a military commission, Orloff v. Willoughby, 345 U.S. 83 ; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz, 176 F.2d 210; and in numerous other adverse consequences. See 8 Wigmore, Evidence 2272, at 441-444, n. 18 (McNaughton rev. 1961); Maguire, Evidence of Guilt 2.062 (1959). This is not to say that short of jail or torture any sanction is permissible in any case; policy and history alike may impose sharp limits. See, e. g., [384 U.S. 436, 513] Griffin v. California, 380 U.S. 609 . However, the Court's unspoken assumption that any pressure violates the privilege is not supported by the precedents and it has failed to show why the Fifth Amendment prohibits that relatively mild pressure the Due Process Clause permits. </s> The Court appears similarly wrong in thinking that precise knowledge of one's rights is a settled prerequisite under the Fifth Amendment to the loss of its protections. A number of lower federal court cases have held that grand jury witnesses need not always be warned of their privilege, e. g., United States v. Scully, 225 F.2d 113, 116, and Wigmore states this to be the better rule for trial witnesses. See 8 Wigmore, Evidence 2269 (McNaughton rev. 1961). Cf. Henry v. Mississippi, 379 U.S. 443, 451 -452 (waiver of constitutional rights by counsel despite defendant's ignorance held allowable). No Fifth Amendment precedent is cited for the Court's contrary view. There might of course be reasons apart from Fifth Amendment precedent for requiring warning or any other safeguard on questioning but that is a different matter entirely. See infra, pp. 516-517. </s> A closing word must be said about the Assistance of Counsel Clause of the Sixth Amendment, which is never expressly relied on by the Court but whose judicial precedents turn out to be linchpins of the confession rules announced today. To support its requirement of a knowing and intelligent waiver, the Court cites Johnson v. Zerbst, 304 U.S. 458 , ante, p. 475; appointment of counsel for the indigent suspect is tied to Gideon v. Wainwright, 372 U.S. 335 , and Douglas v. California, 372 U.S. 353 , ante, p. 473; the silent-record doctrine is borrowed from Carnley v. Cochran, 369 U.S. 506 , ante, p. 475, as is the right to an express offer of counsel, ante, p. 471. All these cases imparting glosses to the Sixth Amendment concerned counsel at trial or on appeal. While the Court finds no pertinent difference between judicial proceedings and police interrogation, I believe [384 U.S. 436, 514] the differences are so vast as to disqualify wholly the Sixth Amendment precedents as suitable analogies in the present cases. 10 </s> The only attempt in this Court to carry the right to counsel into the station house occurred in Escobedo, the Court repeating several times that that stage was no less "critical" than trial itself. See 378 U.S., 485-488. This is hardly persuasive when we consider that a grand jury inquiry, the filing of a certiorari petition, and certainly the purchase of narcotics by an undercover agent from a prospective defendant may all be equally "critical" yet provision of counsel and advice on that score have never been thought compelled by the Constitution in such cases. The sound reason why this right is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself. This danger shrinks markedly in the police station where indeed the lawyer in fulfilling his professional responsibilities of necessity may become an obstacle to truthfinding. See infra, n. 12. The Court's summary citation of the Sixth Amendment cases here seems to me best described as "the domino method of constitutional adjudication . . . wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation." Friendly, supra, n. 10, at 950. </s> III. POLICY CONSIDERATIONS. </s> Examined as an expression of public policy, the Court's new regime proves so dubious that there can be no due [384 U.S. 436, 515] compensation for its weakness in constitutional law. The foregoing discussion has shown, I think, how mistaken is the Court in implying that the Constitution has struck the balance in favor of the approach the Court takes. Ante, p. 479. Rather, precedent reveals that the Fourteenth Amendment in practice has been construed to strike a different balance, that the Fifth Amendment gives the Court little solid support in this context, and that the Sixth Amendment should have no bearing at all. Legal history has been stretched before to satisfy deep needs of society. In this instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on every State and county in the land. </s> Without at all subscribing to the generally black picture of police conduct painted by the Court, I think it must be frankly recognized at the outset that police questioning allowable under due process precedents may inherently entail some pressure on the suspect and may seek advantage in his ignorance or weaknesses. The atmosphere and questioning techniques, proper and fair though they be, can in themselves exert a tug on the suspect to confess, and in this light "[t]o speak of any confessions of crime made after arrest as being `voluntary' or `uncoerced' is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser." Ashcraft v. Tennessee, 322 U.S. 143, 161 (Jackson, J., dissenting). Until today, the role of the Constitution has been only to sift out undue pressure, not to assure spontaneous confessions. 11 </s> [384 U.S. 436, 516] </s> The Court's new rules aim to offset these minor pressures and disadvantages intrinsic to any kind of police interrogation. The rules do not serve due process interests in preventing blatant coercion since, as I noted earlier, they do nothing to contain the policeman who is prepared to lie from the start. The rules work for reliability in confessions almost only in the Pickwickian sense that they can prevent some from being given at all. 12 In short, the benefit of this new regime is simply to lessen or wipe out the inherent compulsion and inequalities to which the Court devotes some nine pages of description. Ante, pp. 448-456. </s> What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it. 13 There can be little doubt that the Court's new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs [384 U.S. 436, 517] must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. See, supra, n. 12. </s> How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete, see Developments, supra, n. 2, at 941-944, and little is added by the Court's reference to the FBI experience and the resources believed wasted in interrogation. See infra, n. 19, and text. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control, 14 and that the Court is taking a real risk with society's welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation. </s> While passing over the costs and risks of its experiment, the Court portrays the evils of normal police questioning in terms which I think are exaggerated. Albeit stringently confined by the due process standards interrogation is no doubt often inconvenient and unpleasant for the suspect. However, it is no less so for a man to be arrested and jailed, to have his house searched, or to stand trial in court, yet all this may properly happen to the most innocent given probable cause, a warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law. </s> This brief statement of the competing considerations seems to me ample proof that the Court's preference is highly debatable at best and therefore not to be read into [384 U.S. 436, 518] the Constitution. However, it may make the analysis more graphic to consider the actual facts of one of the four cases reversed by the Court. Miranda v. Arizona serves best, being neither the hardest nor easiest of the four under the Court's standards. 15 </s> On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time Miranda was 23 years old, indigent, and educated to the extent of completing half the ninth grade. He had "an emotional illness" of the schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was "alert and oriented as to time, place, and person," intelligent within normal limits, competent to stand trial, and sane within the legal definition. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a separate room to interrogate him, starting about 11:30 a. m. Though at first denying his guilt, within a short time Miranda gave a detailed oral confession and then wrote out in his own hand and signed a brief statement admitting and describing the crime. All this was accomplished in two hours or less without any force, threats or promises and - I will assume this though the record is uncertain, ante, 491-492 and nn. 66-67 - without any effective warnings at all. </s> Miranda's oral and written confessions are now held inadmissible under the Court's new rules. One is entitled to feel astonished that the Constitution can be read to produce this result. These confessions were obtained [384 U.S. 436, 519] during brief, daytime questioning conducted by two officers and unmarked by any of the traditional indicia of coercion. They assured a conviction for a brutal and unsettling crime, for which the police had and quite possibly could obtain little evidence other than the victim's identifications, evidence which is frequently unreliable. There was, in sum, a legitimate purpose, no perceptible unfairness, and certainly little risk of injustice in the interrogation. Yet the resulting confessions, and the responsible course of police practice they represent, are to be sacrificed to the Court's own finespun conception of fairness which I seriously doubt is shared by many thinking citizens in this country. 16 </s> The tenor of judicial opinion also falls well short of supporting the Court's new approach. Although Escobedo has widely been interpreted as an open invitation to lower courts to rewrite the law of confessions, a significant heavy majority of the state and federal decisions in point have sought quite narrow interpretations. 17 Of [384 U.S. 436, 520] the courts that have accepted the invitation, it is hard to know how many have felt compelled by their best guess as to this Court's likely construction; but none of the state decisions saw fit to rely on the state privilege against self-incrimination, and no decision at all has gone as far as this Court goes today. 18 </s> It is also instructive to compare the attitude in this case of those responsible for law enforcement with the official views that existed when the Court undertook three major revisions of prosecutorial practice prior to this case, Johnson v. Zerbst, 304 U.S. 458 , Mapp v. Ohio, 367 U.S. 643 , and Gideon v. Wainwright, 372 U.S. 335 . In Johnson, which established that appointed counsel must be offered the indigent in federal criminal trials, the Federal Government all but conceded the basic issue, which had in fact been recently fixed as Department of Justice policy. See Beaney, Right to Counsel 29-30, 36-42 (1955). In Mapp, which imposed the exclusionary rule on the States for Fourth Amendment violations, more than half of the States had themselves already adopted some such rule. See 367 U.S., at 651 . In Gideon, which extended Johnson v. Zerbst to the States, an amicus brief was filed by 22 States and Commonwealths urging that course; only two States besides that of the respondent came forward to protest. See 372 U.S., at 345 . By contrast, in this case new restrictions on police [384 U.S. 436, 521] questioning have been opposed by the United States and in an amicus brief signed by 27 States and Commonwealths, not including the three other States which are parties. No State in the country has urged this Court to impose the newly announced rules, nor has any State chosen to go nearly so far on its own. </s> The Court in closing its general discussion invokes the practice in federal and foreign jurisdictions as lending weight to its new curbs on confessions for all the States. A brief resume will suffice to show that none of these jurisdictions has struck so one-sided a balance as the Court does today. Heaviest reliance is placed on the FBI practice. Differing circumstances may make this comparison quite untrustworthy, 19 but in any event the FBI falls sensibly short of the Court's formalistic rules. For example, there is no indication that FBI agents must obtain an affirmative "waiver" before they pursue their questioning. Nor is it clear that one invoking his right to silence may not be prevailed upon to change his mind. And the warning as to appointed counsel apparently indicates only that one will be assigned by the judge when the suspect appears before him; the thrust of the Court's rules is to induce the suspect to obtain appointed counsel before continuing the interview. See ante, pp. 484-486. Apparently American military practice, briefly mentioned by the Court, has these same limits and is still less favorable to the suspect than the FBI warning, making no mention of appointed counsel. Developments, supra, n. 2, at 1084-1089. </s> The law of the foreign countries described by the Court also reflects a more moderate conception of the rights of [384 U.S. 436, 522] the accused as against those of society when other data are considered. Concededly, the English experience is most relevant. In that country, a caution as to silence but not counsel has long been mandated by the "Judges' Rules," which also place other somewhat imprecise limits on police cross-examination of suspects. However, in the court's discretion confessions can be and apparently quite frequently are admitted in evidence despite disregard of the Judges' Rules, so long as they are found voluntary under the common-law test. Moreover, the check that exists on the use of pretrial statements is counterbalanced by the evident admissibility of fruits of an illegal confession and by the judge's often-used authority to comment adversely on the defendant's failure to testify. 20 </s> India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon the general ban on police-adduced confessions cited by the Court is subject to a major exception: if evidence is uncovered by police questioning, it is fully admissible at trial along with the confession itself, so far as it relates to the evidence and is not blatantly coerced. See Developments, supra, n. 2, at 1106-1110; Reg. v. Ramasamy 1965. A. C. 1 (P. C.). Scotland's limits on interrogation do measure up to the Court's; however, restrained comment at trial on the defendant's failure to take the stand is allowed the judge, and in many other respects Scotch law redresses the prosecutor's disadvantage in ways not permitted in this country. 21 The Court ends its survey by imputing [384 U.S. 436, 523] added strength to our privilege against self-incrimination since, by contrast to other countries, it is embodied in a written Constitution. Considering the liberties the Court has today taken with constitutional history and precedent, few will find this emphasis persuasive. </s> In closing this necessarily truncated discussion of policy considerations attending the new confession rules, some reference must be made to their ironic untimeliness. There is now in progress in this country a massive re-examination of criminal law enforcement procedures on a scale never before witnessed. Participants in this undertaking include a Special Committee of the American Bar Association, under the chairmanship of Chief Judge Lumbard of the Court of Appeals for the Second Circuit; a distinguished study group of the American Law Institute, headed by Professors Vorenberg and Bator of the Harvard Law School; and the President's Commission on Law Enforcement and Administration of Justice, under the leadership of the Attorney General of the United States. 22 Studies are also being conducted by the District of Columbia Crime Commission, the Georgetown Law Center, and by others equipped to do practical research. 23 There are also signs that legislatures in some of the States may be preparing to re-examine the problem before us. 24 </s> [384 U.S. 436, 524] </s> It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court's too rapid departure from existing constitutional standards. Despite the Court's disclaimer, the practical effect of the decision made today must inevitably be to handicap seriously sound efforts at reform, not least by removing options necessary to a just compromise of competing interests. Of course legislative reform is rarely speedy or unanimous, though this Court has been more patient in the past. 25 But the legislative reforms when they come would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs. </s> IV. CONCLUSIONS. </s> All four of the cases involved here present express claims that confessions were inadmissible, not because of coercion in the traditional due process sense, but solely because of lack of counsel or lack of warnings concerning counsel and silence. For the reasons stated in this opinion, I would adhere to the due process test and reject the new requirements inaugurated by the Court. On this premise my disposition of each of these cases can be stated briefly. </s> In two of the three cases coming from state courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No. 760), the confessions were held admissible and no other errors worth comment are alleged by petitioners. [384 U.S. 436, 525] I would affirm in these two cases. The other state case is California v. Stewart (No. 584), where the state supreme court held the confession inadmissible and reversed the conviction. In that case I would dismiss the writ of certiorari on the ground that no final judgment is before us, 28 U.S.C. 1257 (1964 ed.); putting aside the new trial open to the State in any event, the confession itself has not even been finally excluded since the California Supreme Court left the State free to show proof of a waiver. If the merits of the decision in Stewart be reached, then I believe it should be reversed and the case remanded so the state supreme court may pass on the other claims available to respondent. </s> In the federal case, Westover v. United States (No. 761), a number of issues are raised by petitioner apart from the one already dealt with in this dissent. None of these other claims appears to me tenable, nor in this context to warrant extended discussion. It is urged that the confession was also inadmissible because not voluntary even measured by due process standards and because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v. United States, 318 U.S. 350 . However, the facts alleged fall well short of coercion in my view, and I believe the involvement of federal agents in petitioner's arrest and detention by the State too slight to invoke Anderson. I agree with the Government that the admission of the evidence now protested by petitioner was at most harmless error, and two final contentions - one involving weight of the evidence and another improper prosecutor comment - seem to me without merit. I would therefore affirm Westover's conviction. </s> In conclusion: Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously [384 U.S. 436, 526] taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (separate opinion): "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added." </s> [Footnote 1 My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement. </s> [Footnote 2 The case was Bram v. United States, 168 U.S. 532 (quoted, ante, p. 461). Its historical premises were afterwards disproved by Wigmore, who concluded "that no assertions could be more unfounded." 3 Wigmore, Evidence 823, at 250, n. 5 (3d ed. 1940). The Court in United States v. Carignan, 342 U.S. 36, 41 , declined to choose between Bram and Wigmore, and Stein v. New York, 346 U.S. 156, 191 , n. 35, cast further doubt on Bram. There are, however, several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell, 256 U.S. 465, 475 ; see Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347 . On Bram and the federal confession cases generally, see Developments in the Law - Confessions, 79 Harv. L. Rev. 935, 959-961 (1966). </s> [Footnote 3 Comment, 31 U. Chi. L. Rev. 313 & n. 1 (1964), states that by the 1963 Term 33 state coerced-confession cases had been decided by this Court, apart from per curiams. Spano v. New York, 360 U.S. 315, 321 , n. 2, collects 28 cases. </s> [Footnote 4 Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 Col. L. Rev. 62, 73 (1966): "In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to an individual which unfairly impairs his capacity to make a rational choice." See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449, 452-458 (1964); Developments, supra, n. 2, at 964-984. </s> [Footnote 5 See the cases synopsized in Herman, supra, n. 4, at 456, nn. 36-39. One not too distant example is Stroble v. California, 343 U.S. 181 , in which the suspect was kicked and threatened after his arrest, questioned a little later for two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible. </s> [Footnote 6 Among the examples given in 8 Wigmore, Evidence 2266, at 401 (McNaughton rev. 1961), are these: the privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise; and where the privilege has been nullified - as by the English Bankruptcy Act - the confession rule may still operate. </s> [Footnote 7 Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt 2.03, at 15-16 (1959). </s> [Footnote 8 This, of course, is implicit in the Court's introductory announcement that "[o]ur decision in Malloy v. Hogan, 378 U.S. 1 (1964) [extending the Fifth Amendment privilege to the States] necessitates [384 U.S. 436, 512] an examination of the scope of the privilege in state cases as well." Ante, p. 463. It is also inconsistent with Malloy itself, in which extension of the Fifth Amendment to the States rested in part on the view that the Due Process Clause restriction on state confessions has in recent years been "the same standard" as that imposed in federal prosecutions assertedly by the Fifth Amendment. 378 U.S., at 7 . </s> [Footnote 9 I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth Amendment and indeed its citation in this regard seems surprising in view of Escobedo's primary reliance on the Sixth Amendment. </s> [Footnote 10 Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new police-interrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 943-948 (1965). </s> [Footnote 11 See supra, n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and terminology quite as much as questions of fact. See Collins v. Beto, 348 F.2d 823, 832 (concurring opinion); Bator & Vorenberg, supra, n. 4, at 72-73. </s> [Footnote 12 The Court's vision of a lawyer "mitigat[ing] the dangers of untrustworthiness" (ante, p. 470) by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a police station confession. Watts v. Indiana, 338 U.S. 49, 59 (separate opinion of Jackson, J.): "[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." See Enker & Elsen, Counsel for the Suspect, 49 Minn. L. Rev. 47, 66-68 (1964). </s> [Footnote 13 This need is, of course, what makes so misleading the Court's comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante, pp. 457-458, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain, however the balance is resolved. </s> [Footnote 14 See, e. g., the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut, 367 U.S. 568, 578 -579 (Frankfurter, J., announcing the Court's judgment and an opinion). </s> [Footnote 15 In Westover, a seasoned criminal was practically given the Court's full complement of warnings and did not heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera, the facts are complicated and the record somewhat incomplete. </s> [Footnote 16 "[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." Snyder v. Massachusetts, 291 U.S. 97, 122 (Cardozo, J.). </s> [Footnote 17 A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C. A. 2d Cir.); Davis v. North Carolina, 339 F.2d 770 (C. A. 4th Cir.); Edwards v. Holman, 342 F.2d 679 (C. A. 5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C. A. 7th Cir.); People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33; State v. Fox, ___ Iowa ___, 131 N. W. 2d 684; Rowe v. Commonwealth, 394 S. W. 2d 751 (Ky.); Parker v. Warden, 236 Md. 236, 203 A. 2d 418; State v. Howard, 383 S. W. 2d 701 (Mo.); Bean v. State, ___ Nev. ___, 398 P.2d 251; State v. Hodgson, 44 N. J. 151, 207 A. 2d 542; People v. Gunner, 15 N. Y. 2d 226, 205 N. E. 2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A. 2d 288; Browne v. State, 24 Wis. 2d 491, 131 N. W. 2d 169. </s> An ample reading is given in: United States ex rel. Russo v. New Jersey, 351 F.2d 429 (C. A. 3d Cir.); Wright v. Dickson, [384 U.S. 436, 520] 336 F.2d 878 (C. A. 9th Cir.); People v. Dorado, 62 Cal. 2d 338, 398 P.2d 361; State v. Dufour, ___ R. I. ___, 206 A. 2d 82; State v. Neely, 239 Ore. 487, 395 P.2d 557, modified, 398 P.2d 482. </s> The cases in both categories are those readily available; there are certainly many others. </s> [Footnote 18 For instance, compare the requirements of the catalytic case of People v. Dorado, 62 Cal. 2d 338, 398 P.2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 670. </s> [Footnote 19 The Court's obiter dictum notwithstanding, ante, p. 486, there is some basis for believing that the staple of FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may also be unusual. </s> [Footnote 20 For citations and discussion covering each of these points, see Developments, supra, n. 2, at 1091-1097, and Enker & Elsen, supra, n. 12, at 80 & n. 94. </s> [Footnote 21 On comment, see Hardin, Other Answers: Search and Seizure, Coerced Confession, and Criminal Trial in Scotland, 113 U. Pa. L. Rev. 165, 181 and nn. 96-97 (1964). Other examples are less stringent search and seizure rules and no automatic exclusion for violation of them, id., at 167-169; guilt based on majority jury verdicts, id., at 185; and pre-trial discovery of evidence on both sides, id., at 175. </s> [Footnote 22 Of particular relevance is the ALI's drafting of a Model Code of Pre-Arraignment Procedure, now in its first tentative draft. While the ABA and National Commission studies have wider scope, the former is lending its advice to the ALI project and the executive director of the latter is one of the reporters for the Model Code. </s> [Footnote 23 See Brief for the United States in Westover, p. 45. The N. Y. Times, June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded $1,100,000 for a five-year study of arrests and confessions in New York. </s> [Footnote 24 The New York Assembly recently passed a bill to require certain warnings before an admissible confession is taken, though the rules are less strict than are the Court's. N. Y. Times, May 24, 1966, p. 35 (late city ed.). </s> [Footnote 25 The Court waited 12 years after Wolf v. Colorado, 338 U.S. 25 , declared privacy against improper state intrusions to be constitutionally safeguarded before it concluded in Mapp v. Ohio, 367 U.S. 643 , that adequate state remedies had not been provided to protect this interest so the exclusionary rule was necessary. </s> MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting. </s> I. </s> The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment. As for the English authorities and the common-law history, the privilege, firmly established in the second half of the seventeenth century, was never applied except to prohibit compelled judicial interrogations. The rule excluding coerced confessions matured about 100 years later, "[b]ut there is nothing in the reports to suggest that the theory has its roots in the privilege against self-incrimination. And so far as the cases reveal, the privilege, as such, seems to have been given effect only in judicial proceedings, including the preliminary examinations by authorized magistrates." Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 18 (1949). </s> Our own constitutional provision provides that no person "shall be compelled in any criminal case to be a witness against himself." These words, when "[c]onsidered in the light to be shed by grammar and the dictionary . . . appear to signify simply that nobody shall be [384 U.S. 436, 527] compelled to give oral testimony against himself in a criminal proceeding under way in which he is defendant." Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Mich. L. Rev. 1, 2. And there is very little in the surrounding circumstances of the adoption of the Fifth Amendment or in the provisions of the then existing state constitutions or in state practice which would give the constitutional provision any broader meaning. Mayers, The Federal Witness' Privilege Against Self-Incrimination: Constitutional or Common-Law? 4 American Journal of Legal History 107 (1960). Such a construction, however, was considerably narrower than the privilege at common law, and when eventually faced with the issues, the Court extended the constitutional privilege to the compulsory production of books and papers, to the ordinary witness before the grand jury and to witnesses generally. Boyd v. United States, 116 U.S. 616 , and Counselman v. Hitchcock, 142 U.S. 547 . Both rules had solid support in common-law history, if not in the history of our own constitutional provision. </s> A few years later the Fifth Amendment privilege was similarly extended to encompass the then well-established rule against coerced confessions: "In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person `shall be compelled in any criminal case to be a witness against himself.'" Bram v. United States, 168 U.S. 532, 542 . Although this view has found approval in other cases, Burdeau v. McDowell, 256 U.S. 465, 475 ; Powers v. United States, 223 U.S. 303, 313 ; Shotwell v. United States, 371 U.S. 341, 347 , it has also been questioned, see Brown v. Mississippi, 297 U.S. 278, 285 ; United States v. Carignan, [384 U.S. 436, 528] 342 U.S. 36, 41 ; Stein v. New York, 346 U.S. 156, 191 , n. 35, and finds scant support in either the English or American authorities, see generally Regina v. Scott, Dears. & Bell 47; 3 Wigmore, Evidence 823 (3d ed. 1940), at 249 ("a confession is not rejected because of any connection with the privilege against self-crimination"), and 250, n. 5 (particularly criticizing Bram); 8 Wigmore, Evidence 2266, at 400-401 (McNaughton rev. 1961). Whatever the source of the rule excluding coerced confessions, it is clear that prior to the application of the privilege itself to state courts, Malloy v. Hogan, 378 U.S. 1 , the admissibility of a confession in a state criminal prosecution was tested by the same standards as were applied in federal prosecutions. Id., at 6-7, 10. </s> Bram, however, itself rejected the proposition which the Court now espouses. The question in Bram was whether a confession, obtained during custodial interrogation, had been compelled, and if such interrogation was to be deemed inherently vulnerable the Court's inquiry could have ended there. After examining the English and American authorities, however, the Court declared that: </s> "In this court also it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary, but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statements of the prisoner were voluntary." 168 U.S., at 558 . </s> In this respect the Court was wholly consistent with prior and subsequent pronouncements in this Court. </s> Thus prior to Bram the Court, in Hopt v. Utah, 110 U.S. 574, 583 -587, had upheld the admissibility of a [384 U.S. 436, 529] confession made to police officers following arrest, the record being silent concerning what conversation had occurred between the officers and the defendant in the short period preceding the confession. Relying on Hopt, the Court ruled squarely on the issue in Sparf and Hansen v. United States, 156 U.S. 51, 55 : </s> "Counsel for the accused insist that there cannot be a voluntary statement, a free open confession, while a defendant is confined and in irons under an accusation of having committed a capital offence. We have not been referred to any authority in support of that position. It is true that the fact of a prisoner being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made or was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not in itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary, and was not obtained by putting the prisoner in fear or by promises. Wharton's Cr. Ev. 9th ed. 661, 663, and authorities cited." </s> Accord, Pierce v. United States, 160 U.S. 355, 357 . </s> And in Wilson v. United States, 162 U.S. 613, 623 , the Court had considered the significance of custodial interrogation without any antecedent warnings regarding the right to remain silent or the right to counsel. There the defendant had answered questions posed by a Commissioner, who had failed to advise him of his rights, and his answers were held admissible over his claim of involuntariness. "The fact that [a defendant] is in custody and manacled does not necessarily render his statement involuntary, nor is that necessarily the effect of popular excitement shortly preceding. . . . And it is laid down [384 U.S. 436, 530] that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned." </s> Since Bram, the admissibility of statements made during custodial interrogation has been frequently reiterated. Powers v. United States, 223 U.S. 303 , cited Wilson approvingly and held admissible as voluntary statements the accused's testimony at a preliminary hearing even though he was not warned that what he said might be used against him. Without any discussion of the presence or absence of warnings, presumably because such discussion was deemed unnecessary, numerous other cases have declared that "[t]he mere fact that a confession was made while in the custody of the police does not render it inadmissible," McNabb v. United States, 318 U.S. 332, 346 ; accord, United States v. Mitchell, 322 U.S. 65 , despite its having been elicited by police examination, Wan v. United States, 266 U.S. 1, 14 ; United States v. Carignan, 342 U.S. 36, 39 . Likewise, in Crooker v. California, 357 U.S. 433, 437 , the Court said that "the bare fact of police `detention and police examination in private of one in official state custody' does not render involuntary a confession by the one so detained." And finally, in Cicenia v. Lagay, 357 U.S. 504 , a confession obtained by police interrogation after arrest was held voluntary even though the authorities refused to permit the defendant to consult with his attorney. See generally Culombe v. Connecticut, 367 U.S. 568, 587 -602 (opinion of Frankfurter, J.); 3 Wigmore, Evidence 851, at 313 (3d ed. 1940); see also Joy, Admissibility of Confessions 38, 46 (1842). </s> Only a tiny minority of our judges who have dealt with the question, including today's majority, have considered in-custody interrogation, without more, to be a violation of the Fifth Amendment. And this Court, as [384 U.S. 436, 531] every member knows, has left standing literally thousands of criminal convictions that rested at least in part on confessions taken in the course of interrogation by the police after arrest. </s> II. </s> That the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious - that the Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution. 1 This is what the Court historically has done. Indeed, it is what it must do and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers. </s> But if the Court is here and now to announce new and fundamental policy to govern certain aspects of our affairs, it is wholly legitimate to examine the mode of this or any other constitutional decision in this Court and to inquire into the advisability of its end product in terms of the long-range interest of the country. At the very least the Court's text and reasoning should withstand analysis and be a fair exposition of the constitutional provision which its opinion interprets. Decisions [384 U.S. 436, 532] like these cannot rest alone on syllogism, metaphysics or some ill-defined notions of natural justice, although each will perhaps play its part. In proceeding to such constructions as it now announces, the Court should also duly consider all the factors and interests bearing upon the cases, at least insofar as the relevant materials are available; and if the necessary considerations are not treated in the record or obtainable from some other reliable source, the Court should not proceed to formulate fundamental policies based on speculation alone. </s> III. </s> First, we may inquire what are the textual and factual bases of this new fundamental rule. To reach the result announced on the grounds it does, the Court must stay within the confines of the Fifth Amendment, which forbids self-incrimination only if compelled. Hence the core of the Court's opinion is that because of the "compulsion inherent in custodial surroundings, no statement obtained from [a] defendant [in custody] can truly be the product of his free choice," ante, at 458, absent the use of adequate protective devices as described by the Court. However, the Court does not point to any sudden inrush of new knowledge requiring the rejection of 70 years' experience. Nor does it assert that its novel conclusion reflects a changing consensus among state courts, see Mapp v. Ohio, 367 U.S. 643 , or that a succession of cases had steadily eroded the old rule and proved it unworkable, see Gideon v. Wainwright, 372 U.S. 335 . Rather than asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial questioning, because of the innate secrecy of such proceedings. It extrapolates a picture of what it conceives to be the norm from police investigatorial manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police practices that may [384 U.S. 436, 533] have occurred in the wake of more recent decisions of state appellate tribunals or this Court. But even if the relentless application of the described procedures could lead to involuntary confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence. 2 Insofar as appears from the Court's opinion, it has not examined a single transcript of any police interrogation, let alone the interrogation that took place in any one of these cases which it decides today. Judged by any of the standards for empirical investigation utilized in the social sciences the factual basis for the Court's premise is patently inadequate. </s> Although in the Court's view in-custody interrogation is inherently coercive, the Court says that the spontaneous product of the coercion of arrest and detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact that he is alone and in custody, without any showing that he had any notion of his right to remain silent or of the consequences of his admission. Yet, under the Court's rule, if the police ask him a single question such as "Do you have anything to say?" or "Did you kill your wife?" his response, if there is one, has somehow been compelled, even if the accused has [384 U.S. 436, 534] been clearly warned of his right to remain silent. Common sense informs us to the contrary. While one may say that the response was "involuntary" in the sense the question provoked or was the occasion for the response and thus the defendant was induced to speak out when he might have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled. </s> Today's result would not follow even if it were agreed that to some extent custodial interrogation is inherently coercive. See Ashcraft v. Tennessee, 322 U.S. 143, 161 (Jackson, J., dissenting). The test has been whether the totality of circumstances deprived the defendant of a "free choice to admit, to deny, or to refuse to answer," Lisenba v. California, 314 U.S. 219, 241 , and whether physical or psychological coercion was of such a degree that "the defendant's will was overborne at the time he confessed," Haynes v. Washington, 373 U.S. 503, 513 ; Lynumn v. Illinois, 372 U.S. 528, 534 . The duration and nature of incommunicado custody, the presence or absence of advice concerning the defendant's constitutional rights, and the granting or refusal of requests to communicate with lawyers, relatives or friends have all been rightly regarded as important data bearing on the basic inquiry. See, e. g., Ashcraft v. Tennessee, 322 U.S. 143 ; Haynes v. Washington, 373 U.S. 503 . 3 </s> [384 U.S. 436, 535] But it has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will. </s> If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are coerced, then it would simply have no rational foundation. Compare Tot v. United States, 319 U.S. 463, 466 ; United States v. Romano, 382 U.S. 136 . A fortiori that would be true of the extension of the rule to exculpatory statements, which the Court effects after a brief discussion of why, in the Court's view, they must be deemed incriminatory but without any discussion of why they must be deemed coerced. See Wilson v. United States, 162 U.S. 613, 624 . Even if one were to postulate that the Court's concern is not that all confessions induced by police interrogation are coerced but rather that some such confessions are coerced and present judicial procedures are believed to be inadequate to identify the confessions that are coerced and those that are not, it would still not be essential to impose the rule that the Court has now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause, could be imposed, or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible confession. </s> On the other hand, even if one assumed that there was an adequate factual basis for the conclusion that all confessions obtained during in-custody interrogation are the product of compulsion, the rule propounded by [384 U.S. 436, 536] the Court would still be irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. But if the defendant may not answer without a warning a question such as "Where were you last night?" without having his answer be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint? And why if counsel is present and the accused nevertheless confesses, or counsel tells the accused to tell the truth, and that is what the accused does, is the situation any less coercive insofar as the accused is concerned? The Court apparently realizes its dilemma of foreclosing questioning without the necessary warnings but at the same time permitting the accused, sitting in the same chair in front of the same policemen, to waive his right to consult an attorney. It expects, however, that the accused will not often waive the right; and if it is claimed that he has, the State faces a severe, if not impossible burden of proof. </s> All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled are banned. I doubt that the Court observes these distinctions today. By considering any answers to any interrogation to be compelled regardless of the content and course of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions but for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled [384 U.S. 436, 537] self-incrimination the Court has created a limited Fifth Amendment right to counsel - or, as the Court expresses it, a "need for counsel to protect the Fifth Amendment privilege . . . ." Ante, at 470. The focus then is not on the will of the accused but on the will of counsel and how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege. </s> In sum, for all the Court's expounding on the menacing atmosphere of police interrogation procedures, it has failed to supply any foundation for the conclusions it draws or the measures it adopts. </s> IV. </s> Criticism of the Court's opinion, however, cannot stop with a demonstration that the factual and textual bases for the rule it propounds are, at best, less than compelling. Equally relevant is an assessment of the rule's consequences measured against community values. The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is "to respect the inviolability of the human personality" and to require government to produce the evidence against the accused by its own independent labors. Ante, at 460. More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus the values reflected by the privilege are not the sole desideratum; society's interest in the general security is of equal weight. </s> The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to [384 U.S. 436, 538] advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion - that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police's asking a suspect whom they have reasonable cause to arrest whether or not he killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent, see Escobedo v. Illinois, 378 U.S. 478, 499 (dissenting opinion). Until today, "the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence." Brown v. Walker, 161 U.S. 591, 596 ; see also Hopt v. Utah, 110 U.S. 574, 584 -585. Particularly when corroborated, as where the police have confirmed the accused's disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability and significantly contribute to the certitude with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation. </s> This is not to say that the value of respect for the inviolability of the accused's individual personality should be accorded no weight or that all confessions should be indiscriminately admitted. This Court has long read the Constitution to proscribe compelled confessions, a salutary rule from which there should be no retreat. But I see no sound basis, factual or otherwise, and the Court gives none, for concluding that the present rule against the receipt of coerced confessions is inadequate for the [384 U.S. 436, 539] task of sorting out inadmissible evidence and must be replaced by the per se rule which is now imposed. Even if the new concept can be said to have advantages of some sort over the present law, they are far outweighed by its likely undesirable impact on other very relevant and important interests. </s> The most basic function of any government is to provide for the security of the individual and of his property. Lanzetta v. New Jersey, 306 U.S. 451, 455 . These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values. </s> The modes by which the criminal laws serve the interest in general security are many. First the murderer who has taken the life of another is removed from the streets, deprived of his liberty and thereby prevented from repeating his offense. In view of the statistics on recidivism in this country 4 and of the number of instances [384 U.S. 436, 540] in which apprehension occurs only after repeated offenses, no one can sensibly claim that this aspect of the criminal law does not prevent crime or contribute significantly to the personal security of the ordinary citizen. </s> Secondly, the swift and sure apprehension of those who refuse to respect the personal security and dignity of their neighbor unquestionably has its impact on others who might be similarly tempted. That the criminal law is wholly or partly ineffective with a segment of the population or with many of those who have been apprehended and convicted is a very faulty basis for concluding that it is not effective with respect to the great bulk of our citizens or for thinking that without the criminal laws, [384 U.S. 436, 541] or in the absence of their enforcement, there would be no increase in crime. Arguments of this nature are not borne out by any kind of reliable evidence that I have seen to this date. </s> Thirdly, the law concerns itself with those whom it has confined. The hope and aim of modern penology, fortunately, is as soon as possible to return the convict to society a better and more law-abiding man than when he left. Sometimes there is success, sometimes failure. But at least the effort is made, and it should be made to the very maximum extent of our present and future capabilities. </s> The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials. 5 Criminal trials, no [384 U.S. 436, 542] matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30% of the criminal cases actually tried in the federal courts. See Federal Offenders: 1964, supra, note 4, at 6 (Table 4), 59 (Table 1); Federal Offenders: 1963, supra, note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra, note 4, at 2 (Table 1). But it is something else again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused and to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now, under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State's evidence, minus the confession, is put to the test of litigation. </s> I have no desire whatsoever to share the responsibility for any such impact on the present criminal process. </s> In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of [384 U.S. 436, 543] course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case. </s> Nor can this decision do other than have a corrosive effect on the criminal law as an effective device to prevent crime. A major component in its effectiveness in this regard is its swift and sure enforcement. The easier it is to get away with rape and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. If it were not, we should posthaste liquidate the whole law enforcement establishment as a useless, misguided effort to control human conduct. </s> And what about the accused who has confessed or would confess in response to simple, noncoercive questioning and whose guilt could not otherwise be proved? Is it so clear that release is the best thing for him in every case? Has it so unquestionably been resolved that in each and every case it would be better for him not to confess and to return to his environment with no attempt whatsoever to help him? I think not. It may well be that in many cases it will be no less than a callous disregard for his own welfare as well as for the interests of his next victim. </s> There is another aspect to the effect of the Court's rule on the person whom the police have arrested on probable cause. The fact is that he may not be guilty at all and may be able to extricate himself quickly and simply if he were told the circumstances of his arrest and were asked to explain. This effort, and his release, must now await the hiring of a lawyer or his appointment by the court, consultation with counsel and then a session with the police or the prosecutor. Similarly, where probable cause exists to arrest several suspects, as where the body of the victim is discovered in a house having several residents, compare Johnson v. State, 238 Md. 140, 207 A. 2d 643 (1965), cert. denied, 382 U.S. 1013 , it will often [384 U.S. 436, 544] be true that a suspect may be cleared only through the results of interrogation of other suspects. Here too the release of the innocent may be delayed by the Court's rule. </s> Much of the trouble with the Court's new rule is that it will operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved. It applies to every defendant, whether the professional criminal or one committing a crime of momentary passion who is not part and parcel of organized crime. It will slow down the investigation and the apprehension of confederates in those cases where time is of the essence, such as kidnapping, see Brinegar v. United States, 338 U.S. 160, 183 (Jackson, J., dissenting); People v. Modesto, 62 Cal. 2d 436, 446, 398 P.2d 753, 759 (1965), those involving the national security, see United States v. Drummond, 354 F.2d 132, 147 (C. A. 2d Cir. 1965) (en banc) (espionage case), pet. for cert. pending, No. 1203, Misc., O. T. 1965; cf. Gessner v. United States, 354 F.2d 726, 730, n. 10 (C. A. 10th Cir. 1965) (upholding, in espionage case, trial ruling that Government need not submit classified portions of interrogation transcript), and some of those involving organized crime. In the latter context the lawyer who arrives may also be the lawyer for the defendant's colleagues and can be relied upon to insure that no breach of the organization's security takes place even though the accused may feel that the best thing he can do is to cooperate. </s> At the same time, the Court's per se approach may not be justified on the ground that it provides a "bright line" permitting the authorities to judge in advance whether interrogation may safely be pursued without jeopardizing the admissibility of any information obtained as a consequence. Nor can it be claimed that judicial time and effort, assuming that is a relevant consideration, [384 U.S. 436, 545] will be conserved because of the ease of application of the new rule. Today's decision leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements made during a prohibited interrogation, all of which are certain to prove productive of uncertainty during investigation and litigation during prosecution. For all these reasons, if further restrictions on police interrogation are desirable at this time, a more flexible approach makes much more sense than the Court's constitutional straitjacket which forecloses more discriminating treatment by legislative or rule-making pronouncements. </s> Applying the traditional standards to the cases before the Court, I would hold these confessions voluntary. I would therefore affirm in Nos. 759, 760, and 761, and reverse in No. 584. </s> [Footnote 1 Of course the Court does not deny that it is departing from prior precedent; it expressly overrules Crooker and Cicenia, ante, at 479, n. 48, and it acknowledges that in the instant "cases we might not find the defendants' statements to have been involuntary in traditional terms," ante, at 457. </s> [Footnote 2 In fact, the type of sustained interrogation described by the Court appears to be the exception rather than the rule. A survey of 399 cases in one city found that in almost half of the cases the interrogation lasted less than 30 minutes. Barrett, Police Practices and the Law - From Arrest to Release or Charge, 50 Calif. L. Rev. 11, 41-45 (1962). Questioning tends to be confused and sporadic and is usually concentrated on confrontations with witnesses or new items of evidence, as these are obtained by officers conducting the investigation. See generally LaFave, Arrest: The Decision to Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment Procedure, Commentary 5.01, at 170, n. 4 (Tent. Draft No. 1, 1966). </s> [Footnote 3 By contrast, the Court indicates that in applying this new rule it "will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given." Ante, at 468. The reason given is that assessment of the knowledge of the defendant based on information as to age, education, intelligence, or prior contact with authorities can never be more than speculation, while a warning is a clear-cut fact. But the officers' claim that they gave the requisite warnings may be disputed, and facts respecting the defendant's prior experience may be undisputed and be of such a nature as to virtually preclude any doubt that the defendant knew of his rights. See United States v. Bolden, 355 F.2d 453 [384 U.S. 436, 535] (C. A. 7th Cir. 1965), petition for cert. pending No. 1146, O. T. 1965 (Secret Service agent); People v. Du Bont, 235 Cal. App. 2d 844, 45 Cal. Rptr. 717, pet. for cert. pending No. 1053, Misc., O. T. 1965 (former police officer). </s> [Footnote 4 Precise statistics on the extent of recidivism are unavailable, in part because not all crimes are solved and in part because criminal records of convictions in different jurisdictions are not brought together by a central data collection agency. Beginning in 1963, however, the Federal Bureau of Investigation began collating data on "Careers in Crime," which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed in 1963 and 1964, 76% had a prior arrest record on some charge. Over a period of 10 years the group had accumulated 434,000 charges. FBI, Uniform Crime Reports - 1964, 27-28. In 1963 and 1964 between 23% and 25% of all offenders sentenced in 88 federal district courts (excluding the District Court for the District of Columbia) whose criminal records were reported had previously been sentenced to a term of imprisonment of 13 months or more. Approximately an additional 40% had a prior record less than prison (juvenile record, probation record, etc.). Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative [384 U.S. 436, 540] Office of the United States Courts, Federal Offenders in the United States District Courts: 1963, 25-27 (hereinafter cited as Federal Offenders: 1963). During the same two years in the District Court for the District of Columbia between 28% and 35% of those sentenced had prior prison records and from 37% to 40% had a prior record less than prison. Federal Offenders: 1964, xii, 64, 66; Administrative Office of the United States Courts, Federal Offenders in the United States District Court for the District of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963). </s> A similar picture is obtained if one looks at the subsequent records of those released from confinement. In 1964, 12.3% of persons on federal probation had their probation revoked because of the commission of major violations (defined as one in which the probationer has been committed to imprisonment for a period of 90 days or more, been placed on probation for over one year on a new offense, or has absconded with felony charges outstanding). Twenty-three and two-tenths percent of parolees and 16.9% of those who had been mandatorily released after service of a portion of their sentence likewise committed major violations. Reports of the Proceedings of the Judicial Conference of the United States and Annual Report of the Director of the Administrative Office of the United States Courts: 1965, 138. See also Mandel et al., Recidivism Studied and Defined, 56 J. Crim. L., C. & P. S. 59 (1965) (within five years of release 62.33% of sample had committed offenses placing them in recidivist category). </s> [Footnote 5 Eighty-eight federal district courts (excluding the District Court for the District of Columbia) disposed of the cases of 33,381 criminal defendants in 1964. Only 12.5% of those cases were actually tried. Of the remaining cases, 89.9% were terminated by convictions upon pleas of guilty and 10.1% were dismissed. Stated differently, approximately 90% of all convictions resulted from guilty pleas. Federal Offenders: 1964, supra, note 4, 3-6. In the District Court for the District of Columbia a higher percentage, 27%, went to trial, and the defendant pleaded guilty in approximately 78% of the cases terminated prior to trial. Id., at 58-59. No reliable statistics are available concerning the percentage of cases in which guilty pleas are induced because of the existence of a confession or of physical evidence unearthed as a result of a confession. Undoubtedly the number of such cases is substantial. </s> Perhaps of equal significance is the number of instances of known crimes which are not solved. In 1964, only 388,946, or 23.9% of 1,626,574 serious known offenses were cleared. The clearance rate ranged from 89.8% for homicides to 18.7% for larceny. FBI, Uniform Crime Reports - 1964, 20-22, 101. Those who would replace interrogation as an investigatorial tool by modern scientific investigation techniques significantly overestimate the effectiveness of present procedures, even when interrogation is included. </s> [384 U.S. 436, 546]

United States Supreme Court PARKER v. FLOOK(1978) No. 77-642 Argued: April 25, 1978Decided: June 22, 1978 </s> Respondent's method for updating alarm limits during catalytic conversion processes, in which the only novel feature is a mathematical formula, held not patentable under 101 of the Patent Act. The identification of a limited category of useful, though conventional, post-solution applications of such a formula does not make the method eligible for patent protection, since assuming the formula to be within prior art, as it must be, O'Reilly v. Morse, 15 How. 62, respondent's application contains no patentable invention. The chemical processes involved in catalytic conversion are well known, as are the monitoring of process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and the use of computers for "automatic process monitoring." Pp. 588-596. </s> 559 F.2d 21, reversed. </s> STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 598. </s> Deputy Solicitor General Wallace argued the cause for petitioner. On the briefs were Solicitor General McCree, Assistant Attorney General Shenefield, Richard H. Stern, Joseph F. Nakamura, and Jere W. Sears. </s> D. Dennis Allegretti argued the cause for respondent. With him on the brief were Charles G. Call, Edward W. Remus, and Frank J. Uxa, Jr. * </s> [Footnote * John S. Voorhees and Kenneth E. Krosin filed a brief for the Computer Business Equipment Manufacturers Assn. as amicus curiae urging reversal. </s> Briefs of amici curiae urging affirmance were filed by Carol A. Cohen for Applied Data Research, Inc.; and by Morton C. Jacobs and David Cohen for the Association of Data Processing Service Organizations. </s> Briefs of amici curiae were filed by James W. Geriak for the American [437 U.S. 584, 585] Patent Law Assn. et al.; by Richard E. Kurtz, Michael G. Gilman, and Charles A. Huggett for Mobil Oil Corp.; and by Reed C. Lawlor and Theodore H. Lassagne for Software Associates, Inc. [437 U.S. 584, 585] </s> MR. JUSTICE STEVENS delivered the opinion of the Court. </s> Respondent applied for a patent on a "Method for Updating Alarm Limits." The only novel feature of the method is a mathematical formula. In Gottschalk v. Benson, 409 U.S. 63 , we held that the discovery of a novel and useful mathematical formula may not be patented. The question in this case is whether the identification of a limited category of useful, though conventional, post-solution applications of such a formula makes respondent's method eligible for patent protection. </s> I </s> An "alarm limit" is a number. During catalytic conversion processes, operating conditions such as temperature, pressure, and flow rates are constantly monitored. When any of these "process variables" exceeds a predetermined "alarm limit," an alarm may signal the presence of an abnormal condition indicating either inefficiency or perhaps danger. Fixed alarm limits may be appropriate for a steady operation, but during transient operating situations, such as start-up, it may be necessary to "update" the alarm limits periodically. </s> Respondent's patent application describes a method of updating alarm limits. In essence, the method consists of three steps: an initial step which merely measures the present value of the process variable (e. g., the temperature); an intermediate step which uses an algorithm 1 to calculate an updated alarm-limit value; and a final step in which the actual alarm limit is adjusted to the updated value. 2 The only difference [437 U.S. 584, 586] between the conventional methods of changing alarm limits and that described in respondent's application rests in the second step - the mathematical algorithm or formula. Using the formula, an operator can calculate an updated alarm limit once he knows the original alarm base, the appropriate margin of safety, the time interval that should elapse between each updating, the current temperature (or other process variable), and the appropriate weighting factor to be used to average the original alarm base and the current temperature. </s> The patent application does not purport to explain how to select the appropriate margin of safety, the weighting factor, or any of the other variables. Nor does it purport to contain any disclosure relating to the chemical processes at work, the monitoring of process variables, or the means of setting off an alarm or adjusting an alarm system. All that it provides is a formula for computing an updated alarm limit. Although the computations can be made by pencil and paper calculations, the abstract of disclosure makes it clear that the formula is primarily useful for computerized calculations producing automatic adjustments in alarm settings. 3 </s> The patent claims cover any use of respondent's formula for updating the value of an alarm limit on any process variable involved in a process comprising the catalytic chemical conversion of hydrocarbons. Since there are numerous processes of that kind in the petrochemical and oil-refining industries, 4 the claims cover a broad range of potential uses of the method. They do not, however, cover every conceivable application of the formula. [437 U.S. 584, 587] </s> II </s> The patent examiner rejected the application. He found that the mathematical formula constituted the only difference between respondent's claims and the prior art and therefore a patent on this method "would in practical effect be a patent on the formula or mathematics itself." 5 The examiner concluded that the claims did not describe a discovery that was eligible for patent protection. </s> The Board of Appeals of the Patent and Trademark Office sustained the examiner's rejection. The Board also concluded that the "point of novelty in [respondent's] claimed method" 6 lay in the formula or algorithm described in the claims, a subject matter that was unpatentable under Benson, supra. </s> The Court of Customs and Patent Appeals reversed. In re Flook, 559 F.2d 21. It read Benson as applying only to claims that entirely pre-empt a mathematical formula or algorithm, and noted that respondent was only claiming on the use of his method to update alarm limits in a process comprising the catalytic chemical conversion of hydrocarbons. The court reasoned that since the mere solution of the algorithm would not constitute infringement of the claims, a patent on the method would not pre-empt the formula. </s> The Acting Commissioner of Patents and Trademarks filed a petition for a writ of certiorari, urging that the decision of the Court of Customs and Patent Appeals will have a debilitating effect on the rapidly expanding computer "software" industry, 7 and will require him to process thousands of additional [437 U.S. 584, 588] patent applications. Because of the importance of the question, we granted certiorari, 434 U.S. 1033 . </s> III </s> This case turns entirely on the proper construction of 101 of the Patent Act, which describes the subject matter that is eligible for patent protection. 8 It does not involve the familiar issues of novelty and obviousness that routinely arise under 102 and 103 when the validity of a patent is challenged. For the purpose of our analysis, we assume that respondent's formula is novel and useful and that he discovered it. We also assume, since respondent does not challenge the examiner's finding, that the formula is the only novel feature of respondent's method. The question is whether the discovery of this feature makes an otherwise conventional method eligible for patent protection. </s> The plain language of 101 does not answer the question. It is true, as respondent argues, that his method is a "process" in the ordinary sense of the word. 9 But that was also true of the algorithm, which described a method for converting binary-coded decimal numerals into pure binary numerals, [437 U.S. 584, 589] that was involved in Gottschalk v. Benson. The holding that the discovery of that method could not be patented as a "process" forecloses a purely literal reading of 101. 10 Reasoning that an algorithm, or mathematical formula, is like a law of nature. Benson applied the established rule that a law of nature cannot be the subject of a patent. Quoting from earlier cases, we said: </s> "`A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.' Le Roy v. Tatham, 14 How. 156, 175. Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." 409 U.S., at 67 . </s> The line between a patentable "process" and an unpatentable "principle" is not always clear. Both are "conception[s] of the mind, seen only by [their] effects when being executed or performed." Tilghman v. Proctor, 102 U.S. 707, 728 . In Benson we concluded that the process application in fact sought to patent an idea, noting that </s> "[t]he mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself." 409 U.S., at 71 -72. </s> Respondent correctly points out that this language does not apply to his claims. He does not seek to "wholly preempt the mathematical formula," since there are uses of his [437 U.S. 584, 590] formula outside the petrochemical and oil-refining industries that remain in the public domain. And he argues that the presence of specific "post-solution" activity - the adjustment of the alarm limit to the figure computed according to the formula - distinguishes this case from Benson and makes his process patentable. We cannot agree. </s> The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula; the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques. 11 The concept of patentable subject matter under 101 is not "like a nose of wax which may be turned and twisted in any direction . . . ." White v. Dunbar, 119 U.S. 47, 51 . </s> Yet it is equally clear that a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm. See Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45 ; Tilghman v. Proctor, supra. 12 For [437 U.S. 584, 591] instance, in Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86 , the applicant sought a patent on a directional antenna system in which the wire arrangement was determined by the logical application of a mathematical formula. Putting the question of patentability to one side as a preface to his analysis of the infringement issue, Mr. Justice Stone, writing for the Court, explained: </s> "While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be." Id., at 94. </s> Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 , expresses a similar approach: </s> "He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end." </s> Mackay Radio and Funk Bros. point to the proper analysis for this case: The process itself, not merely the mathematical algorithm, must be new and useful. Indeed, the novelty of the mathematical algorithm is not a determining factor at all. Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the "basic tools of scientific and technological work," see Gottschalk v. Benson, [437 U.S. 584, 592] 409 U.S., at 67 , it is treated as though it were a familiar part of the prior art. </s> This is also the teaching of our landmark decision in O'Reilly v. Morse, 15 How. 62. In that case the Court rejected Samuel Morse's broad claim covering any use of electromagnetism for printing intelligible signs, characters, or letters at a distance. Id., at 112-121. In reviewing earlier cases applying the rule that a scientific principle cannot be patented, the Court placed particular emphasis on the English case of Neilson v. Harford, Web. Pat. Cases 295, 371 (1844), which involved the circulation of heated air in a furnace system to increase its efficiency. The English court rejected the argument that the patent merely covered the principle that furnace temperature could be increased by injecting hot air, instead of cold into the furnace. That court's explanation of its decision was relied on by this Court in Morse: </s> "`It is very difficult to distinguish it [the Neilson patent] from the specification of a patent for a principle, and this at first created in the minds of the court much difficulty; but after full consideration, we think that the plaintiff does not merely claim a principle, but a machine, embodying a principle, and a very valuable one. We think the case must be considered as if the principle being well known, the plaintiff had first invented a mode of applying it . . . .'" 15 How., at 115 (emphasis added). 13 </s> We think this case must also be considered as if the principle or mathematical formula were well known. </s> Respondent argues that this approach improperly imports into 101 the considerations of "inventiveness" which are the proper concerns of 102 and 103. 14 This argument is based on two fundamental misconceptions. [437 U.S. 584, 593] </s> First, respondent incorrectly assumes that if a process application implements a principle in some specific fashion, it automatically falls within the patentable subject matter of 101 and the substantive patentability of the particular process can then be determined by the conditions of 102 and 103. This assumption is based on respondent's narrow reading of Benson, and is as untenable in the context of 101 as it is in the context of that case. It would make the determination of patentable subject matter depend simply on the draftsman's art and would ill serve the principles underlying the prohibition against patents for "ideas" or phenomena of nature. The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of "discoveries" that the statute was enacted to protect. 15 The obligation to determine what type of discovery is sought to be patented must precede the determination of whether that discovery is, in fact, new or obvious. </s> Second, respondent assumes that the fatal objection to his application is the fact that one of its components - the mathematical [437 U.S. 584, 594] formula - consists of unpatentable subject matter. In countering this supposed objection, respondent relies on opinions by the Court of Customs and Patent Appeals which reject the notion "that a claim may be dissected, the claim components searched in the prior art, and, if the only component found novel is outside the statutory classes of invention, the claim may be rejected under 35 U.S.C. 101." In re Chatfield, 545 F.2d 152, 158 (CCPA 1976). 16 Our approach to respondent's application is, however, not at all inconsistent with the view that a patent claim must be considered as a whole. Respondent's process is unpatentable under 101, not because it contains a mathematical algorithm as one component, but because once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention. Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented. Conversely, the discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application. </s> Here it is absolutely clear that respondent's application contains no claim of patentable invention. The chemical processes involved in catalytic conversion of hydrocarbons are well known, as are the practice of monitoring the chemical process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and the use of computers for "automatic monitoring-alarming." 17 Respondent's application simply provides a new and presumably better method for calculating alarm limit [437 U.S. 584, 595] values. If we assume that that method was also known, as we must under the reasoning in Morse, then respondent's claim is, in effect, comparable to a claim that the formula 2(pi)r can be usefully applied in determining the circumference of a wheel. 18 As the Court of Customs and Patent Appeals has explained, "if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory." In re Richman, 563 F.2d 1026, 1030 (1977). </s> To a large extent our conclusion is based on reasoning derived from opinions written before the modern business of developing programs for computers was conceived. The youth of the industry may explain the complete absence of precedent supporting patentability. Neither the dearth of precedent, nor this decision, should therefore be interpreted as reflecting a judgment that patent protection of certain novel and useful computer programs will not promote the progress of science and the useful arts, or that such protection is undesirable as a matter of policy. Difficult questions of policy concerning the kinds of programs that may be appropriate for patent protection and the form and duration of such protection can be answered by Congress on the basis of current empirical data not equally available to this tribunal. 19 </s> [437 U.S. 584, 596] </s> It is our duty to construe the patent statutes as they now read, in light of our prior precedents, and we must proceed cautiously when we are asked to extend patent rights into areas wholly unforeseen by Congress. As MR. JUSTICE WHITE explained in writing for the Court in Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 531 : </s> "[W]e should not expand patent rights by overruling or modifying our prior cases construing the patent statutes, unless the argument for expansion of privilege is based on more than mere inference from ambiguous statutory language. We would require a clear and certain signal from Congress before approving the position of a litigant who, as respondent here, argues that the beachhead of privilege is wider, and the area of public use narrower, than courts had previously thought. No such signal legitimizes respondent's position in this litigation." </s> The judgment of the Court of Customs and Patent Appeals is </s> Reversed. </s> APPENDIX TO OPINION OF THE COURT </s> Claim 1 of the patent describes the method as follows: </s> "1. A method for updating the value of at least one alarm limit on at least one process variable involved in a process comprising the catalytic chemical conversion of hydrocarbons wherein said alarm limit has a current value of </s> Bo+K </s> "wherein Bo is the current alarm base and K is a predetermined alarm offset which comprises: [437 U.S. 584, 597] </s> "(1) Determining the present value of said process variable, said present value being defined as PVL; </s> "(2) Determining a new alarm base B1., using the following equation: </s> B1.=Bo(1.0 - F)+PVL(F) </s> "where F is a predetermined number greater than zero and less than 1.0; </s> "(3) Determining an updated alarm limit which is defined as B1.+K; and thereafter </s> "(4) Adjusting said alarm limit to said updated alarm limit value." App. 63A. </s> In order to use respondent's method for computing a new limit, the operator must make four decisions. Based on his knowledge of normal operating conditions, he first selects the original "alarm base" (Bo); if a temperature of 400 degrees is normal, that may be the alarm base. He next decides on an appropriate margin of safety, perhaps 50 degrees; that is his "alarm offset" (K). The sum of the alarm base and the alarm offset equals the alarm limit. Then he decides on the time interval that will elapse between each updating; that interval has no effect on the computation although it may, of course, be of great practical importance. Finally, he selects a weighting factor (F), which may be any number between 99% and 1%, * and which is used in the updating calculation. </s> If the operator has decided in advance to use an original alarm base (Bo) of 400 degrees, a constant alarm offset (K) of 50 degrees, and a weighting factor (F) of 80%, the only additional information he needs in order to compute an updated alarm limit (UAV), is the present value of the process variable (PVL). The computation of the updated alarm limit according to respondent's method involves these three steps: </s> First, at the predetermined interval, the process variable [437 U.S. 584, 598] is measured; if we assume the temperature is then 425 degrees, PVL will then equal 425. </s> Second, the solution of respondent's novel formula will produce a new alarm base (B1.) that will be a weighted average of the preceding alarm base (Bo) of 400 degrees and the current temperature (PVL) of 425. It will be closer to one or the other depending on the value of the weighting factor (F) selected by the operator. If F is 80%, that percentage of 425 (340) plus 20% (1 - F) of 400 (80) will produce a new alarm base of 420 degrees. </s> Third, the alarm offset (K) of 50 degrees is then added to the new alarm base (B1.) of 420 to produce the updated alarm limit (UAV) of 470. </s> The process is repeated at the selected time intervals. In each updating computation, the most recently calculated alarm base and the current measurement of the process variable will be substituted for the corresponding numbers in the original calculation, but the alarm offset and the weighting factor will remain constant. </s> [Footnote * More precisely, it is defined as a number greater than 0, but less than 1. </s> Footnotes [Footnote 1 We use the word "algorithm" in this case, as we did in Gottschalk v. Benson, 409 U.S. 63, 65 , to mean "[a] procedure for solving a given type of mathematical problem . . . ." </s> [Footnote 2 Claim 1 of the patent is set forth in the appendix to this opinion, which also contains a more complete description of these three steps. </s> [Footnote 3 App. 13A. </s> [Footnote 4 Examples mentioned in the abstract of disclosure include naphtha reforming, petroleum distillate and petroleum residuum cracking, hydro-cracking and desulfurization, aromatic hydrocarbon and paraffin isomerization and disproportionation, paraffin-olefin alkylation, and the like. Id., at 8A. </s> [Footnote 5 Id., at 47A. </s> [Footnote 6 Id., at 60A. </s> [Footnote 7 The term "software" is used in the industry to describe computer programs. The value of computer programs in use in the United States in 1976 was placed at $43.1 billion, and projected at $70.7 billion by 1980 according to one industry estimate. See Brief for the Computer & Business Equipment Manufacturers Assn. as Amicus Curiae 17-18, n. 16. </s> [Footnote 8 Title 35 U.S.C. 101 provides: </s> "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title." </s> Section 100 (b) provides: </s> "The term `process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material." </s> [Footnote 9 The statutory definition of "process" is broad. See n. 8, supra. An argument can be made, however, that this Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a "different state or thing." See Cochrane v. Deener, 94 U.S. 780, 787 -788. As in Benson, we assume that a valid process patent may issue even if it does not meet one of these qualifications of our earlier precedents. 409 U.S., at 71 . </s> [Footnote 10 In Benson we phrased the issue in this way: </s> "The question is whether the method described and claimed is a `process' within the meaning of the Patent Act." Id., at 64. </s> [Footnote 11 It should be noted that in Benson there was a specific end use contemplated for the algorithm - utilization of the algorithm in computer programming. See In re Chatfield, 545 F.2d 152, 161 (CCPA 1976) (Rich, J., dissenting). Of course, as the Court pointed out, the formula had no other practical application; but it is not entirely clear why a process claim is any more or less patentable because the specific end use contemplated is the only one for which the algorithm has any practical application. </s> [Footnote 12 In Eibel Process Co. the Court upheld a patent on an improvement on a papermaking machine that made use of the law of gravity to enhance the flow of the product. The patentee, of course, did not claim to have discovered the force of gravity, but that force was an element in his novel conception. </s> Tilghman v. Proctor involved a process claim for "`the manufacturing [437 U.S. 584, 591] of fat acids and glycerine from fatty bodies.'" The Court distinguished the process from the principle involved as follows: </s> "[T]he claim of the patent is not for a mere principle. The chemical principle or scientific fact upon which it is founded is, that the elements of neutral fat require to be severally united with an atomic equivalent of water in order to separate from each other and become free. This chemical fact was not discovered by Tilghman. He only claims to have invented a particular mode of bringing about the desired chemical union between the fatty elements and water." 102 U.S., at 729 . </s> [Footnote 13 See also Risdon Locomotive Works v. Medart, 158 U.S. 68 ; Tilghman v. Proctor, supra. </s> [Footnote 14 Sections 102 and 103 establish certain conditions, such as novelty and nonobviousness, to patentability. </s> [Footnote 15 The underlying notion is that a scientific principle, such as that expressed in respondent's algorithm, reveals a relationship that has always existed. </s> "An example of such a discovery [of a scientific principle] was Newton's formulation of the law of universal gravitation, relating the force of attraction between two bodies, F, to their masses, m and m', and the square of the distance, d, between their centers, according to the equation F=mm'/d2.. But this relationship always existed - even before Newton announced his celebrated law. Such `mere' recognition of a theretofore existing phenomenon or relationship carries with it no rights to exclude others from its enjoyment. . . . Patentable subject matter must be new (novel); not merely heretofore unknown. There is a very compelling reason for this rule. The reason is founded upon the proposition that in granting patent rights, the public must not be deprived of any rights that it theretofore freely enjoyed." P. Rosenberg, Patent Law Fundamentals, 4, p. 13 (1975). </s> [Footnote 16 Section 103, by its own terms, requires that a determination of obviousness be made by considering "the subject matter as a whole." 35 U.S.C. 103. Although this does not necessarily require that analysis of what is patentable subject matter under 101 proceed on the same basis, we agree that it should. </s> [Footnote 17 App. 22. </s> [Footnote 18 Respondent argues that the inventiveness of his process must be determined as of "the time the invention is made" under 103, and that, therefore, it is improper to judge the obviousness of his process by assessing the application of the formula as though the formula were part of the prior art. This argument confuses the issue of patentable subject matter under 101 with that of obviousness under 103. Whether or not respondent's formula can be characterized as "obvious," his process patent rests solely on the claim that his mathematical algorithm, when related to a computer program, will improve the existing process for updating alarm units. Very simply, our holding today is that a claim for an improved method of calculation, even when tied to a specific end use, is unpatentable subject matter under 101. </s> [Footnote 19 Articles assessing the merits and demerits of patent protection for computer programming are numerous. See, e. g., Davis, Computer Programs [437 U.S. 584, 596] and Subject Matter Patentability, 6 Rutgers J. of Computers and Law 1 (1977), and articles cited therein, at 2 n. 5. Even among those who favor patentability of computer programs, there is questioning of whether the 17-year protection afforded by the current Patent Act is either needed or appropriate. See id., at 20 n. 133. </s> MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting. </s> It is a commonplace that laws of nature, physical phenomena, and abstract ideas are not patentable subject matter. 1 A patent could not issue, in other words, on the law of gravity, or the multiplication tables, or the phenomena of magnetism, or the fact that water at sea level boils at 100 degrees centigrade and freezes at zero - even though newly discovered. Le Roy v. Tatham, 14 How. 156, 175; O'Reilly v. Morse, 15 How. 62, 112-121; Rubber-Tip Pencil Co. v. Howard, 20 Wall. [437 U.S. 584, 599] 498, 507; Tilghman v. Proctor, 102 U.S. 707 ; Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86, 94 ; Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 . </s> The recent case of Gottschalk v. Benson, 409 U.S. 63 , stands for no more than this long-established principle, which the Court there stated in the following words: </s> "Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." Id., at 67. </s> In Benson the Court held unpatentable claims for an algorithm that "were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use." Id., at 64. A patent on such claims, the Court said, "would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself." Id., at 72. </s> The present case is a far different one. The issue here is whether a claimed process 2 loses its status of subject-matter patentability simply because one step in the process would not be patentable subject matter if considered in isolation. The Court of Customs and Patent Appeals held that the process is patentable subject matter, Benson being inapplicable since "[t]he present claims do not preempt the formula or algorithm contained therein, because solution of the algorithm, per se, would not infringe the claims." In re Flook, 559 F.2d 21, 23. </s> That decision seems to me wholly in conformity with basic principles of patent law. Indeed, I suppose that thousands of processes and combinations have been patented that contained one or more steps or elements that themselves would have been [437 U.S. 584, 600] unpatentable subject matter. 3 Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45 , is a case in point. There the Court upheld the validity of an improvement patent that made use of the law of gravity, which by itself was clearly unpatentable. See also, e. g., Tilghman v. Proctor, supra. </s> The Court today says it does not turn its back on these well-settled precedents, ante, at 594, but it strikes what seems to me an equally damaging blow at basic principles of patent law by importing into its inquiry under 35 U.S.C. 101 the criteria of novelty and inventiveness. Section 101 is concerned only with subject-matter patentability. Whether a patent will actually issue depends upon the criteria of 102 and 103, which include novelty and inventiveness, among many others. It may well be that under the criteria of 102 and 103 no patent should issue on the process claimed in this case, because of anticipation, abandonment, obviousness, or for some other reason. But in my view the claimed process clearly meets the standards of subject-matter patentability of 101. </s> In short, I agree with the Court of Customs and Patent Appeals in this case, and with the carefully considered opinions of that court in other cases presenting the same basic issue. See In re Freeman, 573 F.2d 1237; In re Richman, 563 F.2d 1026; In re De Castelet, 562 F.2d 1236; In re Deutsch, 553 F.2d 689; In re Chatfield, 545 F.2d 152. Accordingly, I would affirm the judgment before us. </s> [Footnote 1 Title 35 U.S.C. 101 provides: </s> "Whoever invents of discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." </s> [Footnote 2 Title 35 U.S.C. 100 (b) provides: </s> "The term `process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material." </s> [Footnote 3 In Gottschalk v. Benson, the Court equated process and product patents for the purpose of its inquiry: "We dealt there with a `product' claim, while the present case deals with a `process' claim. But we think the same principle applies." 409 U.S., at 67 -68. </s> [437 U.S. 584, 601]

United States Supreme Court ALBRECHT v. U.S.(1947) No. 148-to-151 Argued: January 8, 1947Decided: February 3, 1947 </s> [329 U.S. 599, 600] Messrs. Richmond C. Coburn and Samuel M. Watson, both of St. Louis, Mo., for petitioners. Mr. Roger P. Marquis, of Washington, D.C., for respondent. </s> Mr. Justice BLACK delivered the opinion of the Court. The question here is whether the Government is obligated to pay interest in connection with the following land purchase arrangements and condemnation proceedings. The Government made separate contracts with the petitioners to buy certain lands from them to be used for a public purpose. The contracts stipulated a purchase price to be paid at an indefinite future time when certain conditions had been fulfilled. 1 They also granted the Government the right to immediate possession. Later the Government questioned the validity of the contracts and attempted to rescind them on the ground that by reason of fraud and other things the contract prices were grossly excessive and represented far more than the 'just compensation' required by the Fifth Amendment. It filed condemnation proceedings in District Courts under 40 Stat. 241, as amended, 50 U.S.C. 171, 50 U.S.C.A. 171, asking the Courts to fix 'just compensation' after hearing evidence on that subject. It also filed a declaration of taking under 46 [329 U.S. 599, 601] Stat. 1421, 40 U.S.C. 258a, 40 U.S.C.A. 258a, at the same time depositing in the Courts sums of money, substantially less than the contract prices, which it estimated to be the true 'just compensation' for the property taken. The Courts then entered orders divesting the property owners of all title and vesting it in the Government. A companion case in which a District Court held an identical contract valid was appealed and eventually reached this Court. Prior to and pending this appeal these petitioners vigorously asserted the validity of the terms of the contracts which fixed the agreed prices for transfer of possession and title to their properties. Several years later this Court upheld the validity of the identical contract in the companion case. 2 Thereupon the Government, complying with that decision, paid the full contract purchase prices into the District Courts. It prayed that the landowners' compensation be fixed as the contract price without interest. Petitioners asserted that they had a right to interest from the time of the 'taking' guaranteed by the Fifth Amendment's provision for 'just compensation.' The Government contended that the 'just compensation' provision was not applicable, and that petitioners had no right to interest because their purchase contracts did not provide for it. One District Court decided this question in favor of the Government, 60 F.Supp. 741, but two decided against it. 61 F.Supp. 199. 3 The Circuit Court of Ap- [329 U.S. 599, 602] peals held for the Government. 8 Cir., 155 F.2d 73, 77. In a case involving somewhat similar facts, United States v. Baugh, 149 F.2d 190, the Circuit Court of Appeals for the Fifth Circuit had decided against the Government. Because of the apparent conflict presented and because the question is of widespread importance, we granted certiorari. The facts and issues, so far as we deem them relevant to disposition of all the cases, are identical, and so we consider all of them together. We agree with the Circuit Court of Appeals that the Government is not obligated to pay interest in these cases. It is true that in cases submitted to them for determination of 'just compensation,' courts have evolved a rule whereby an element of compensation designated as interest is sometimes allowed. Under this rule, and in the absence of an agreement of the parties fixing compensation, courts first fix the fair market value of property as of the time it is taken. The property owner, against whom there is no counterclaim, is always entitled to payment of this much. But where payment of that fair market value is deferred, it has been held that something more than fair market value is required to make the property owner whole, to afford him 'just compensation.' This additional element of compensation has been measured in terms of reasonable interest. Thus, 'just compensation' in the constitutional sense, has been held, absent a settlement between the parties, to be fair market value at the time of taking plus 'interest' from that date to the date of payment. 4 </s> But the method used by courts to determine 'just compensation' in an adversary proceeding where the parties [329 U.S. 599, 603] have failed previously to agree on its amount is not the exclusive method for determining that question. The Fifth Amendment does not prohibit landowners and the Government from agreeing between themselves as to what is just compensation for property taken. See Danforth v. United States, 308 U.S. 271 , 60 S.Ct. 231. Nor does it bar them from embodying that agreement in a contract, as was done here. And certainly where a party to such a contract stands upon its terms to enforce them for his own advantage, he cannot at the same time successfully disavow those terms so far as he conceives them to be to his disadvantage. That is precisely the position of the petitioners here. They made contracts for the transfer and possession of lands, at prices concerning which they have never complained. At the end of the prolonged litigation, the Government was barred from showing that compensations fixed by the contracts were not just, but were excessive. Having thus bound the Government to the contract prices as the measure of 'just compensation', which prices, to say the least, generously meet the Fifth Amendment's 'just compensation' requirement, they now seek to escape the burdens of these identical contract provisions. They invoke the Fifth Amendment in pursuit of something more than the compensation for which their contracts provide- contracts which they are not willing to abandon. The answer to their contention is that in this posture of the cases these transactions have passed out of the range of the Fifth Amendment. For the reasoning on which interest is added to value as a part of 'just compensation' in court condemnation proceedings is not applicable to this situation. That reasoning is that when a court determines just ompensation, it first fixes bare value at the time of the taking and adds a sum to compensate for deferred payment of bare value so as to make the property owner whole as required by the Fifth Amendment. We [329 U.S. 599, 604] do not think this formula fits contractual arrangements for compensation. Exactly what factor the parties consider, in addition to bare value, cannot easily be ascertained. This very group of transactions illustrates that there may be many such additional factors. For example, all the contracts here provided for immediate Government possession, though none contemplated immediate payments. We cannot know what amounts were added in the bargains to the bare market values as estimated, though unarticulated, allowances for the anticipated delays in payment. And other factors, which need not be enumerated, entered into the contract prices. These things demonstrate the inadvisability of applying a constitutional rule as to interest, specially designed to enable courts to calculate 'just compensation,' to an entirely different situation in which parties, supposedly with due regard to their own interests, bargain between themselves as to compensation. Since these petitioners have chosen to stand on their contract terms as to the amount they will receive for their property, rather than to have 'just compensation,' in the constitutional sense, fixed by the courts, we must look to those terms for the measure of their compensation, including their right to that part of compensation which courts have called interest. We have not overlooked the contention that this conclusion is in conflict with our holding in Danforth v. United States, 308 U.S. 271 , 60 S. Ct. 231. We do not think it is. That was also a case in which a statute authorized Government agents to purchase property, and a price had been agreed on prior to condemnation proceedings. But the asserted interest claim was there denied. The decision in that case reasserted the principle that interest in condemnation proceedings does not begin until there has been a taking. After noting the several incidents asserted to constitute a taking, we held that there was no interval between the [329 U.S. 599, 605] taking of the property there and payment for it. Thus the question we have considered here was neither directly involved, raised, nor given special consideration. A further incidental distinction between that case and this is that in the Danforth case the contract did not anticipate that the taking would precede payment. Turning now to the right to interest under the contracts, and apart from the contention regarding the Fifth Amendment, we find that the contracts have no provision for payment of interest. No statute authorizes the payment of interest in cases like this. In the absence of specific contract or statutory provisions no interest runs against the Government even though the Government's payment for the contract purchases be delayed. See Smyth v. United States, 302 U.S. 329, 353 , 58 S.Ct. 248, 252, 114 A.L.R. 807; United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588 , 67 S.Ct. 398, 399; United States v. New York Rayon Importing Co. et al., 329 U.S. 654, 659 , 67 S.Ct. 601, 604. There is some argument that interest should be allowed because the Declaration of Taking Act, 46 Stat.1421, 40 U.S.C. 258a, 40 U.S.C.A. 258a, under which condemnation proceedings were filed, authorizes payment of interest from the date property is taken. Cf. United States v. Thayer- West Point Hotel Co., supra, 329 U.S. 585, 588 , 67 S.Ct. 398, 399. This provision, however, is no more than a statutory embodiment of the rule for determining constitutional 'just compensation' in the absence of a governing contract, and what we have already said is equally applicable to the claim for interest under the statute. It contains no specific provision for interest on Government contracts of purchase. And here, while the litigation was under the condemnation statute, the petitioners' reliance on the purchase price provisions of the contracts as to value took these claims for interest outside the purview of the interest provisions of the Declaration of Taking Act, and left them to be governed by the interest rules which would have applied had suit been [329 U.S. 599, 606] brought by petitioners to enforce the contract terms. Petitioners were barred from receiving interest in any proceeding for the reason that their contracts contained no promise to pay interest. AFFIRMED. </s> Mr. Justice REED and Mr. Justice DOUGLAS, dissenting. 'The stipulation merely had the effect of relieving the Government from having to make proof as to what was just compensation and of running the risk of having an amount fixed which might be unsatisfactory.' United States v. Baugh, 5 Cir., 149 F.2d 190, 192. The landowners' 'right to have interest is found in the Constitution and is neither found nor lost in the contract.' Id., 149 F.2d at page 193. The justness of the claim for interest in these cases is underlined by the fact that the land was taken over four years before full payment was made. The United States renounced these contracts and retained possession of the properties by the Declaration of Taking Act which by its terms, 46 Stat. 1421, 40 U.S.C. 258a, entitled the condemnee to interest on the value from the date of taking except as to sums paid into court. After the decision in Muschany v. United States, 324 U.S. 49 , 65 S.Ct. 442, the Government carried out its condemnation suits and obtained titles to these properties by condemnation. </s> In these condemnation actions the agreed price, stated in the contracts, became the 'just compensation' of the Declaration of Taking Act and by that Act interest was due for such amount as had not been deposited with the trial court when the declaration was filed. Interest for the period between the declaration and the payment of the value into the trial court should be allowed on the amount by which the sum fixed in the final decree exceeded the sum deposited with the declaration of taking. </s> Footnotes </s> [Footnote 1 The first contract condition as to payment was that it should be made upon conveyance of a good and merchantable title. The second was that if 'for any reason' the Attorney General did not approve the title, the Government could obtain a good title by condemnation proceedings in an appropriate district court in which event the agreed compensation was to be deposited in court. </s> [Footnote 2 Muschany v. United States, 324 U.S. 49 , 65 S.Ct. 442. [Footnote 3 Some of the petitioners claimed interest from the date the Government took possession of the lands under the contract to the date the Government deposited the full contract price. One petitioner claimed interest only from the date of the filing of the declaration of taking on the difference on that date between the sum the Government deposited as the estimated 'just compensation' and the full contract price finally deposited. Interest was awarded by the two District Courts on this latter theory only from the date of the declaration of taking. </s> [Footnote 4 Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 306 , 43 S. Ct. 354, 356; Shoshone Tribe of Indians v. United States, 299 U.S. 476, 496 , 497 S., 57 S.Ct. 244, 251; Jacobs v. United States, 290 U.S. 13, 16 , 17 S., 54 S.Ct. 26, 27, 28, 96 A.L.R. 1; United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 123 , 58 S.Ct. 799, 801.

United States Supreme Court LABOR BOARD v. WALTON MFG. CO.(1962) No. 77 Argued: March 19, 1962Decided: April 9, 1962 </s> [Footnote * Together with No. 94, National Labor Relations Board v. Florida Citrus Canners Cooperative, also on certiorari to the same Court, argued March 19-20, 1962. </s> The Court of Appeals for the Fifth Circuit denied enforcement of orders of the National Labor Relations Board requiring reinstatement with back pay of employees found to have been discriminatorily discharged in violation of the National Labor Relations Act. In doing so, the Court of Appeals applied a special rule which it had adopted for use in reinstatement cases, to the effect that the employer's statement under oath as to the reason for the discharge must be believed unless he is impeached or contradicted. Held: The judgments are reversed and the cases are remanded to the Court of Appeals for reconsideration. Pp. 405-409. </s> (a) A reviewing court is not barred from setting aside a decision of the National Labor Relations Board when it cannot conscientiously find that the evidence supporting that decision is substantial when viewed in the light of "the record considered as a whole"; but it may not displace the Board's choice between two fairly conflicting views, even though the Court would justifiably have made a different choice had the matter been before it de novo. Universal Camera Corp. v. Labor Board, 340 U.S. 474 . P. 405. </s> (b) There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases. Pp. 407-408. </s> (c) Since this Court is in doubt as to how the Court of Appeals would have decided these two cases in the absence of its own special rule applicable to such cases, the cases are remanded to that Court for reconsideration. Pp. 408-409. </s> 286 F.2d 16; 288 F.2d 630, reversed and cases remanded. [369 U.S. 404, 405] </s> Norton J. Come argued the cause for petitioner in both cases. With him on the briefs were Solicitor General Cox, Stuart Rothman, Dominick L. Manoli, Frederick U. Reel, Russell Specter and Allan I. Mendelsohn. </s> Robert T. Thompson argued the cause for respondents in No. 77. With him on the briefs was Alexander E. Wilson, Jr. </s> O. R. T. Bowden argued the cause and filed briefs for respondent in No. 94. </s> PER CURIAM. </s> These cases are here on petitions for certiorari to the Court of Appeals for the Fifth Circuit, which refused enforcement of orders of the Board. We granted certiorari ( 368 U.S. 810, 812 ) because there was a seeming noncompliance by that court with our admonitions in Universal Camera Corp. v. Labor Board, 340 U.S. 474 . We there said that while the "reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view," it may not "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Id., at 488. </s> Each of these cases involves alleged discriminatory discharges of employees in violation of the National Labor Relations Act, 29 U.S.C. 158 (a) (3); and in each the Board ordered, inter alia, reinstatement of the workers in question with back pay. See 124 N. L. R. B. 1331, 124 N. L. R. B. 1182. In that type of case the Fifth Circuit has fashioned a special rule that was announced in Labor [369 U.S. 404, 406] Board v. Tex-O-Kan Flour Mills Co., 122 F.2d 433, a decision rendered in 1941. In case of a cease-and-desist order, the court said that it generally "costs no money and only warns to observe a right which already existed; evidence short of demonstration may easily justify such an order." Id., at 438. But the court established a more onerous rule for reinstatement cases: </s> "Orders for reinstatement of employees with back pay are somewhat different. They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial, and surmise or suspicion, even though reasonable, is not enough. The duty to weigh and test the evidence is of course on the Board. This court may not overrule a fact conclusion supported by substantial evidence, even though we deem it incorrect under all the evidence. . . . In the matters now concerning us, the controlling and ultimate fact question is the true reason which governed the very person who discharged or refused to reemploy in each instance. There is no doubt that each employee here making complaint was discharged, or if laid off was not reemployed, and that he was at the time a member of the union. In each case such membership may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ. If no other reason is apparent, union membership may logically be inferred. Even though the discharger disavows it under oath, if he can assign no other credible motive or cause, he need not be believed. But it remains true that the discharger knows the real cause of discharge, it is a fact to which he may swear. If he says it was not union membership or activity, but [369 U.S. 404, 407] something else which in fact existed as a ground, his oath cannot be disregarded because of suspicion that he may be lying. There must be impeachment of him, or substantial contradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point." Id., at 438-439. </s> This special rule concerning the weight of the evidence necessary to sustain the Board's orders for reinstatement with back pay has been repeatedly followed by the Fifth Circuit Court of Appeals in decisions refusing enforcement of that particular type of order. See Labor Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260; Labor Board v. Alco Feed Mills, 133 F.2d 419; Labor Board v. Ingram, 273 F.2d 670; Labor Board v. Allure Shoe Corp., 277 F.2d 231; Frosty Morn Meats, Inc., v. Labor Board, 296 F.2d 617. </s> The Court of Appeals in No. 77, Labor Board v. Walton Mfg. Co., 286 F.2d 16, 25, in resolving the issue of credibility between witnesses for the employer and witnesses for the union, as to the reasons for the discharge of the employees in question, relied on the test stated in Labor Board v. Tex-O-Kan Flour Mills Co., supra. In No. 94, Labor Board v. Florida Citrus Canners Cooperative, 288 F.2d 630, decided less than three months later, the Tex-O-Kan opinion was not mentioned. But its test of credibility of witnesses seemingly was applied. 288 F.2d, at 636-638. </s> There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases. Labor Board v. Pittsburgh S. S. Co., 340 U.S. 498 , and the Universal Camera Corp. case, both decided the same day, were cases involving reinstatement. They state a rule for review by Courts of Appeals in all Labor Board cases. The test in the [369 U.S. 404, 408] Tex-O-Kan opinion for reinstatement cases is that the employer's statement under oath must be believed unless there is "impeachment of him" or "substantial contradiction," or if there are "circumstances" that "raise doubts" they must be "inconsistent with the positive sworn evidence on the exact point." But the Examiner - the one whose appraisal of the testimony was discredited by the Court of Appeals in the Florida Citrus Canners Cooperative case - sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records. As we said in the Universal Camera case: </s> ". . . The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case." 340 U.S., at 496 . </s> For the demeanor of a witness </s> ". . . may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies." Dyer v. MacDougall, 201 F.2d 265, 269. </s> We are in doubt as to how the Court of Appeals would have decided these two cases were it rid of the yardstick for reinstatement proceedings fashioned in its Tex-O-Kan decision. The reviewing function has been deposited, not here, but in the Court of Appeals, as the Universal Camera case makes clear. We "will intervene only . . . when the standard appears to have been misapprehended or grossly misapplied." 340 U.S., at 491 . Since the [369 U.S. 404, 409] special rule for reinstatement cases announced in the Tex-O-Kan opinion apparently colored the review given by the Court of Appeals of these two orders, we remand the cases to it for reconsideration. </s> Reversed. </s> MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting. </s> These cases were brought here on the claim that the Court of Appeals had exceeded its reviewing power over orders of the National Labor Relations Board under the National Labor Relations Act, 29 U.S.C. 160 (e), requiring that "the record considered as a whole" be canvassed. The Court does not find that the court did not assess the evidence, including inferences fairly to be drawn, in accordance with the scope of judicial review outlined in Universal Camera Corp. v. Labor Board, 340 U.S. 474 , and its companion case, Labor Board v. Pittsburgh S. S. Co., 340 U.S. 498 . But it remands the cases to the Court of Appeals because of doubt whether that court was improperly influenced in its determinations by what is deemed an erroneous legal rule as applied in Labor Board v. Tex-O-Kan Flour Mills Co., 122 F.2d 433. </s> I am constrained to disagree with the Court's disposition of these cases on three grounds. First, the Court assumes legal identity between two cases that raise entirely different issues. Second, in neither case did the Court of Appeals apply a special and more stringent rule of review in cases of reinstatement for wrongful discharge. Finally, I think the Tex-O-Kan rule, insofar as it was applied below in Walton and is disapproved here, is in accord with prior decisions of this Court and does not conflict with the substantial evidence rule. </s> The Court of Appeals in Walton accepted findings by the Trial Examiner and the Board, 124 N. L. R. B. 1331, [369 U.S. 404, 410] that respondents had violated 8 (a) (1) of the National Labor Relations Act, 29 U.S.C. 158 (a) (1), by surveillance of union activities, interrogations of employees regarding the union, and threats of reprisals for union adherence. But the court refused to enforce an order to reinstate a number of employees with back pay, holding on its reading of the same dead record that the Board had before it, that there was not substantial evidence to support the Board's findings that the employees had been discharged or laid off because of their union membership and activities. 286 F.2d 16. </s> In Florida Citrus the Examiner and the Board found that the respondent had refused to bargain as required by 8 (a) (5), and therefore that employees who had participated in a resulting strike had been discharged and replaced in violation of 8 (a) (1) and (3). 124 N. L. R. B. 1182. The Court of Appeals denied enforcement of the order to cease and desist, to bargain on request, and to reinstate the discharged employees with pay; it did so because it concluded, on consideration of the record as a whole, that the critical finding of refusal to bargain was not supported by substantial evidence. 288 F.2d 630. </s> The Court today reverses both decisions for misapplication of the standard of review set forth in 10 (e) of the National Labor Relations Act, 29 U.S.C. 160 (e), and 10 (e) of the Administrative Procedure Act, 5 U.S.C. 1009 (e), and elaborated in Universal Camera Corp. v. Labor Board, 340 U.S. 474 , that "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." The Court finds that the Court of Appeals may have erroneously adopted a special rule for cases of reinstatement for wrongful discharge, forbidding the Board to discredit an employer's testimony as to the reason for discharge unless he is [369 U.S. 404, 411] impeached or contradicted. These decisions are reversed because in Walton the Court of Appeals "relied on the test stated in Labor Board v. Tex-O-Kan Flour Mills Co.," 122 F.2d 433, and in Florida Citrus, although Tex-O-Kan was not cited, "its test of credibility of witnesses seemingly was applied." </s> 1. Tex-O-Kan. </s> That case came before the Court of Appeals for the Fifth Circuit in 1941. Judge Sibley, writing for the court, found ample evidence to sustain a cease-and-desist order against interference with union activity: "a cease and desist order on this point costs no money and only warns to observe a right which already existed; evidence short of demonstration may easily justify such an order." 122 F.2d, at 438. But, he continued, </s> "Orders for reinstatement of employees with back pay are somewhat different. They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial, and surmise or suspicion, even though reasonable, is not enough." </s> Accepting that the union membership of each discharged employee "may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ," the court enforced the backpay order in several instances where no other reason for discharge was apparent, or where the reason given was refuted by the facts. But where management gave reasons for the discharge that were not contradicted by the facts - that a job had been abolished, that work had been inadequately done, that an employee had engaged in irregular conduct with company property or failed to report [369 U.S. 404, 412] the taking of sick leave - the court held the findings of anti-union animus to be without substantial support: </s> "[I]t remains true that the discharger knows the real cause of discharge, it is a fact to which he may swear. If he says it was not union membership or activity, but something else which in fact existed as a ground, his oath cannot be disregarded because of suspicion that he may be lying. There must be impeachment of him, or substantial contradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point. This was squarely ruled as to a jury in Pennsylvania R. R. Co. v. Chamberlain, . . . and the ruling is applicable to the Board as fact-finder." 122 F.2d, at 439. </s> 2. History of Tex-O-Kan in the Fifth Circuit. </s> In numerous cases Tex-O-Kan has been cited and quoted by the Court of Appeals for its view that testimony justifying discharge should not lightly be disregarded. Labor Board v. Goodyear Tire & Rubber Co., 129 F.2d 661, 665; Labor Board v. Alco Feed Mills, 133 F.2d 419, 421; Labor Board v. Oklahoma Transp. Co., 140 F.2d 509, 510; Labor Board v. Edinburg Citrus Assn., 147 F.2d 353, 355; Labor Board v. McGahey, 233 F.2d 406, 411-412; Labor Board v. Drennon Food Products Co., 272 F.2d 23, 27; Labor Board v. Walton Mfg. Co., 286 F.2d 16, 25; Labor Board v. Atlanta Coca-Cola Bottling Co., 293 F.2d 300, 306. See also Frosty Morn Meats, Inc., v. Labor Board, 296 F.2d 617, 620-621, where Tex-O-Kan was not cited. On occasion Tex-O-Kan has also been quoted to distinguish between cease-and-desist orders and those requiring payment of back pay. Labor Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260, 263; Labor Board v. Ingram, 273 F.2d 670, 673. The Tex-O-Kan [369 U.S. 404, 413] credibility view has also been applied by the court in determining whether to enforce an order requiring payment of a bonus found to have been withheld in order to discourage union activity. Labor Board v. Crosby Chemicals, Inc., 274 F.2d 72, 78. It has not been cited on the issue of credibility in cases involving only cease-and-desist orders. </s> 3. A Special Rule for Reinstatement? </s> I agree with the Court that, despite the consequences of backpay orders, "There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases." However, although the Court of Appeals has several times in the past seemingly applied two different rules, and although it has not relied on Tex-O-Kan in cases dealing solely with cease-and-desist orders, I do not think either of the present cases presents an appropriate occasion for admonishing that court against applying a double standard. Both cases concerned both cease-and-desist orders and reinstatement with back pay. In neither did the Court of Appeals suggest that it was applying a special rule for reinstatement orders alone. The part of the Tex-O-Kan opinion differentiating backpay from cease-and-desist orders, quoted by this Court, was not quoted by the Court of Appeals in either case. In Walton the court said only that "The requirements of substantiality of evidence and reasonableness of the inferences to be drawn from the evidence are not less in a case of reinstatement and reimbursement than where a cease and desist order is directed against interference" - not that the requirements are more strict. In Florida Citrus the single factual issue whether respondent had refused to bargain underlay both backpay and cease-and-desist orders. The court [369 U.S. 404, 414] properly dealt with this as a single issue and did not purport to apply different standards of review for purposes of various parts of the order. Tex-O-Kan was nowhere cited. </s> 4. Tex-O-Kan's Credibility Rule and the Present Cases. </s> (1) In Florida Citrus collective bargaining had broken off shortly after a disastrous freeze that threatened future business. The Trial Examiner found that the company was responsible for the failure of bargaining. He recited a delay in meeting which he attributed to the company. He referred to the company's refusal to discuss the union's proposal at a meeting held just after the freeze, and to the company's failure in the face of union demands to request a postponement of negotiations to permit assessment of the effect of the freeze, as it had announced it intended to do. Finally, by resolving conflicting testimony in favor of the General Counsel's witnesses, he found that after the failure of negotiations the company had made anti-union statements and offered inducements to the employees should they forsake the union. This finding buttressed his interpretation of the company's earlier conduct when bargaining was called off. In rejecting the testimony of production manager Stephenson and accepting that of Holly, an employee to whom the alleged anti-union statements and promises had been made, the Examiner relied in part on a comparison of the demeanor of these two witnesses, saying also that Stephenson admitted such subjects as a company union had come up in the conversation; that many of the statements he was said to have made later came true; and that Holly was a logical choice to speak such sentiments to because he might reasonably have been induced to lead a movement of defection from the union. [369 U.S. 404, 415] </s> The Court of Appeals held the finding of refusal to bargain to be without substantial support. It ruled that the Board could not reasonably infer a refusal to bargain from the company's refusal to make a formal request for postponing negotiations, since the union had issued an ultimatum that in effect rejected the request. Moreover, it rejected the Board's determinations of credibility. The court made it clear that it believed the Examiner's findings to have been based on "the belief that reliance may not be placed upon the testimony of a witness who is a part of the management of an employer in a controversy with a labor union." Beyond this, the court declared it was unable to accept the Examiner's crediting of Holly and discrediting of Stephenson because there was no prior indication of company opposition to the union and because it was unlikely that a manager would divulge the details of company labor policy to a watchman. As to a conflict in testimony between Stephenson and Wingate, the union's chief representative, the court ruled that Wingate's testimony should have been "more carefully scrutinized" because the Examiner himself had found Wingate sometimes inaccurate or careless. </s> The Board attacks this decision as in conflict with the substantial evidence test of the Labor Management Relations Act and of the Universal Camera doctrine. The crux of its objection is that the court has substituted its judgment as to credibility for that of the Examiner and the Board; in particular, it complains that the record gives no support to the court's conclusion that the Examiner was inclined to discredit on principle all company witnesses. Neither in its petition for certiorari nor its brief on the merits did the Board cite Tex-O-Kan as the ground of its objection to the decision in Florida Citrus. Yet this Court reverses the Court of Appeals' decision without reference to the facts or the holding of that case, [369 U.S. 404, 416] saying simply that the Tex-O-Kan "test of credibility of witnesses seemingly was applied." But Tex-O-Kan was no more relied on by the Court of Appeals than it was attacked in this case by the Board. Tex-O-Kan forbids the Examiner and the Board to dismiss summarily management's reasons for a discharge if not contradicted, impeached, or inherently improbable. Florida Citrus was not a case of uncontradicted testimony. It was not a case in which motivation for a discharge was in doubt. The issue was what Stephenson said to the Board's witnesses; the problem was a conflict of testimony. To be sure, the Board argues that both Florida Citrus and Tex-O-Kan are manifestations of the same attitude of hostility to findings of the Labor Board. But if the Court of Appeals strayed outside the Universal Camera bounds, it did not do so by discrediting uncontradicted testimony pursuant to Tex-O-Kan. If this Court is of the opinion that the Court of Appeals unjustifiably substituted its own judgment for that of the Board, it ought to say so. The Court of Appeals ought not to be reversed for following a decision it did not follow. </s> (2) Walton, by contrast, squarely presents a Tex-O-Kan problem. Four employees had been discharged and nine more laid off. The Trial Examiner, in each case rejecting company testimony that the employee was a substandard performer, attributed all thirteen to the employees' union activities. The Board agreed. In holding all these findings to be without substantial support, the Court of Appeals pointed out in the case of the four discharges that in addition to the company's witnesses there was evidence, sometimes given by the employee herself, either of unsatisfactory work or of meager union activity, or both. But in reversing the Board with respect to the nine layoffs the court quoted and relied on Tex-O-Kan, pointing out that management [369 U.S. 404, 417] testimony, unimpeached, assigned plausible grounds for selecting each employee for layoff, and that the factual bases for these statements were largely uncontradicted. </s> 5. Tex-O-Kan and the Substantial Evidence Test. </s> This Court today lays down a dogmatic rule against a Fifth Circuit evidentiary practice authorizing acceptance of plausible, uncontradicted, unimpeached testimony of motivation and apparently holds the Board's power in reviewing the dead record to determine witness credibility to be absolute and unreviewable: </s> "the demeanor of a witness `. . . may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story . . . .'" </s> This statement, torn from context in Judge Learned Hand's opinion in Dyer v. MacDougall, 201 F.2d 265, 269, is elevated into a rule of law that ignores earlier decisions of this Court and effectively insulates many administrative findings from judicial review, contrary to the command of the Labor Management Relations Act and the Administrative Procedure Act that such findings should be set aside if not supported by substantial evidence on the whole record. </s> The cases abound with statements that the determination of credibility is for the trier of fact and is not to be upset on appeal. E. g., Tractor Training Service v. Federal Trade Commission, 227 F.2d 420, 424 (C. A. 9th Cir.); Kitty Clover, Inc., v. Labor Board, 208 F.2d 212, 214 (C. A. 8th Cir.). Professor Jaffe has said "It is generally held that whether made by jury, judge, or agency a determination of credibility is nonreviewable unless there is uncontrovertible documentary evidence or physical fact which contradicts it." Judicial Review: Question of Fact, [369 U.S. 404, 418] 69 Harv. L. Rev. 1020, 1031. It is this view that has led some courts to hold that a verdict cannot be directed in favor of a party having the burden of proof if his case rests on the credibility of witnesses, e. g., Giles v. Giles, 204 Mass. 383, 90 N. E. 595. Likewise, Professor Davis speaks of it as settled "that a trial tribunal may disbelieve the only evidence presented and dispose of the case by holding against the party having the burden of proof," Administrative Law Treatise, 29.06, p. 148. Even in reviewing the findings of a trial judge sitting without a jury, where the standard of review permits closer scrutiny by the Court of Appeals, Rule 52 (a) of the Federal Rules of Civil Procedure requires that "due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." And in Labor Board v. Pittsburgh S. S. Co., 337 U.S. 656, 660 , this Court held that the Board's crediting of all General Counsel's witnesses and discrediting of all respondent's does not indicate bias, so long as none of the credited testimony "carries its own death wound" and none of that which was rejected "carries its own irrefutable truth." </s> The opportunity of the trier of fact to observe the demeanor of witnesses should not be overlooked. But neither should it be overlooked that the Board itself has no opportunity to observe the demeanor of witnesses. Yet the Board is not required to accept a trial examiner's credibility findings, see Universal Camera Corp. v. Labor Board, 340 U.S. 474, 492 -497, and, therefore, neither is the Court of Appeals. Even where the fact-finding function is not divided, "due regard" for the advantage of the trier of fact does not require appellate impotence. Judge Hand's statement in Dyer v. MacDougall was one of logic, not of law; the court went on to affirm a summary judgment against the plaintiff, who presented no evidence and relied on the chance that defendant's witnesses would be disbelieved in their denials - because, despite the logical [369 U.S. 404, 419] possibility that demeanor alone might convince of the affirmative, to deny summary judgment would have destroyed the effectiveness of judicial review. Indeed, this Court has never before required complete deference to credibility findings. Labor Board v. Pittsburgh S. S. Co., 337 U.S. 656 , does not so hold; a great many findings not so unfounded as to indicate bias are nonetheless reversible error. In Universal Camera Corp. v. Labor Board, 340 U.S. 474, 490 , this Court declared that Labor Board findings must be set aside when the record "clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." A "fair estimate of the worth of the testimony" hardly suggests that the Board is free to make an unfair estimate, especially in the light of the decision in Universal Camera that "courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. . . . Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds." Professor Davis states frankly that "Administrative determinations of credibility are often set aside because the reviewing court firmly believes that the evidence supporting the determination is clearly less credible than the opposing evidence," Administrative Law Treaties, 29.06, p. 145. Professor Jaffe concedes that his general rule of deference to credibility findings is not unyielding and agrees that this may be proper: "even on a credibility issue we should probably not tolerate the intuitive `hunch' where the record evidence overwhelmingly points to the contrary." 69 Harv. L. Rev., at 1032. </s> In fact, Tex-O-Kan is clearly supported by at least two decisions of this Court requiring a trier of fact to accept unimpeached testimony not contradicted by substantial evidence in the record. In Dickinson v. United States, [369 U.S. 404, 420] 346 U.S. 389 , a draft board had classified petitioner I-A for Selective Service purposes despite his uncontradicted testimony, letters, and an affidavit that he was an ordained minister exempted from service. Notwithstanding its holding that such an order was subject to more limited scrutiny than most agency orders, the Court reversed his conviction for refusing to report for induction: </s> "The court below in affirming the conviction apparently thought the local board was free to disbelieve Dickinson's testimonial and documentary evidence even in the absence of any impeaching or contradictory evidence. . . . But when the uncontroverted evidence supporting a registrant's claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice." 346 U.S., at 396 -397. </s> In Chesapeake & Ohio R. Co. v. Martin, 283 U.S. 209 , the Court reversed a trial judge's refusal to sustain a demurrer to the evidence on the ground that a complete defense was established by uncontradicted, unimpeached testimony. Quoting at length from cases in other courts upholding appellate review of credibility determinations, the Court concluded: </s> "We recognize the general rule, of course, as stated by both courts below, that the question of the credibility of witnesses is one for the jury alone; but this does not mean that the jury is at liberty, under the guise of passing upon the credibility of a witness, to disregard his testimony, when from no reasonable point of view is it open to doubt." 283 U.S., at 216 . </s> In short, the Court of Appeals was entitled to come to the conclusion to which it came, for neither the Board nor the reviewing court was bound by the Examiner's findings [369 U.S. 404, 421] on credibility. I do not think the Court of Appeals applied an erroneous standard of review or grossly misapplied the correct standard, and, therefore, since it is not for this Court to "pass on the Board's conclusions in the first instance or to make an independent review of the review by the Court of Appeals," Labor Board v. Pittsburgh S. S. Co., 340 U.S. 498, 502 , I would either affirm the cases or, preferably, dismiss the writs as improvidently granted. </s> [369 U.S. 404, 422]

United States Supreme Court IN RE SASSOWER(1993) No. 92-8933 Argued: Decided: October 12, 1993 </s> PER CURIAM. </s> Pro se petitioner George Sassower requests leave to proceed in forma pauperis under Rule 39 of this Court. We deny this request pursuant to Rule 39.8. Sassower is allowed until November 2, 1993, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33. For the reasons explained below, we also direct the Clerk not to accept any further petitions for certiorari nor any petitions for extraordinary writs from Sassower in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33. </s> Prior to this Term, Sassower had filed 11 petitions in this Court over the last three years. Although Sassower was granted in forma pauperis status to file these petitions, all were denied without recorded dissent. 1 During the last four months, Sassower has suddenly increased his filings. He currently has ten petitions pending before this Cour - all of them patently frivolous. </s> Although we have not previously denied Sassower in forma pauperis status pursuant to Rule 39.8, we think it appropriate to enter an order pursuant to Martin v. District of Columbia Court of Appeals, 506 U.S. ___ (1992). In both In re Sindram, 498 U.S. 177 (1991) (per curiam) and In re McDonald, 489 U.S. 180 (1989) (per curiam), we entered orders similar to this one without having previously denied petitioners' motions to proceed in forma pauperis under Rule 39.8. For the important reasons discussed in Martin, Sindram, and McDonald, we feel compelled to enter the order today barring prospective filings from Sassower. </s> Sassower's abuse of the writ of certiorari and of the extraordinary writs has been in noncriminal cases, and so we limit our sanction accordingly. The order therefore will not prevent Sassower from petitioning to challenge criminal sanctions which might be imposed on him. The order, however, will allow this Court to devote its limited resources to the claims of petitioners who have not abused our process. </s> It is so ordered. </s> JUSTICE THOMAS and JUSTICE GINSBURG took no part in the consideration or decision of the motion in No. 93-5252, Sassower v. Reno. </s> Footnotes [Footnote 1 See Sassower v. New York, 499 U.S. 966 (1991) (certiorari); In re Sassower, 499 U.S. 935 (1991) (mandamus/prohibition); In re Sassower, 499 U.S. 935 (1991) (mandamus/prohibition); Sassower v. Mahoney, 498 U.S. 1108 (1991); In re Sassower, 499 U.S. 904 (1991) (mandamus/prohibition); In re Sassower, 498 U.S. 1081 (1991) (habeas corpus); In re Sassower, 498 U.S. 1081 (1991) (mandamus/prohibition); Sassower v. Court of Appeals for D.C.Cir., 498 U.S. 1094 (1991) (certiorari); Sassower v. Brieant, 498 U.S. 1094 (1991) (certiorari); Sassower v. Thornburgh, 498 U.S. 1036 (1991) (certiorari); Sassower v. Dillon, 493 U.S. 979 (1989) (certiorari). Page I

United States Supreme Court SOUTH DAKOTA v. OPPERMAN(1976) No. 75-76 Argued: March 29, 1976Decided: July 6, 1976 </s> After respondent's car had been impounded for multiple parking violations the police, following standard procedures, inventoried the contents of the car. In doing so they discovered marihuana in the glove compartment, for the possession of which respondent was subsequently arrested. His motion to suppress the evidence yielded by the warrantless inventory search was denied, and respondent was thereafter convicted. The State Supreme Court reversed, concluding that the evidence had been obtained in violation of the Fourth Amendment as made applicable to the States by the Fourteenth. Held: The police procedures followed in this case did not involve an "unreasonable" search in violation of the Fourth Amendment. The expectation of privacy in one's automobile is significantly less than that relating to one's home or office, Cardwell v. Lewis, 417 U.S. 583, 590 . When vehicles are impounded, police routinely follow caretaking procedures by securing and inventorying the cars' contents. These procedures have been widely sustained as reasonable under the Fourth Amendment. This standard practice was followed here, and there is no suggestion of any investigatory motive on the part of the police. Pp. 367-376. </s> 89 S. D. ___, 228 N. W. 2d 152, reversed and remanded. </s> BURGER, C. J., delivered the opinion of the Court, in which BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 376. WHITE, J., filed a dissenting statement, post, p. 396. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 384. </s> William J. Janklow, Attorney General of South Dakota, argued the cause for petitioner. With him on the brief was Earl R. Mettler, Assistant Attorney General. </s> Robert C. Ulrich, by appointment of the Court, [428 U.S. 364, 365] 423 U.S. 1012 , argued the cause for respondent pro hac vice. With him on the brief were Lee M. McCahren and John F. Hagemann. * </s> [Footnote * Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and Kent L. Richland and Robert R. Anderson, Deputy Attorneys General, for the State of California; by Theodore L. Sendak, Attorney General, and Donald P. Bogard, Executive Assistant Attorney General, for the State of Indiana; by Toney Anaya, Attorney General, and Warren O. F. Harris, Deputy Attorney General, for the State of New Mexico; and by Wayne W. Schmidt for Americans for Effective Law Enforcement, Inc. </s> MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. </s> We review the judgment of the Supreme Court of South Dakota, holding that local police violated the Fourth Amendment to the Federal Constitution, as applicable to the States under the Fourteenth Amendment, when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking ordinances. </s> (1) </s> Local ordinances prohibit parking in certain areas of downtown Vermillion, S. D., between the hours of 2 a. m. and 6 a. m. During the early morning hours of December 10, 1973, a Vermillion police officer observed respondent's unoccupied vehicle illegally parked in the restricted zone. At approximately 3 a. m., the officer issued an overtime parking ticket and placed it on the car's windshield. The citation warned: </s> "Vehicles in violation of any parking ordinance may be towed from the area." </s> At approximately 10 o'clock on the same morning, another [428 U.S. 364, 366] officer issued a second ticket for an overtime parking violation. These circumstances were routinely reported to police headquarters, and after the vehicle was inspected, the car was towed to the city impound lot. </s> From outside the car at the impound lot, a police officer observed a watch on the dashboard and other items of personal property located on the back seat and back floorboard. At the officer's direction, the car door was then unlocked and, using a standard inventory form pursuant to standard police procedures, the officer inventoried the contents of the car, including the contents of the glove compartment, which was unlocked. There he found marihuana contained in a plastic bag. All items, including the contraband, were removed to the police department for safekeeping. 1 During the late afternoon of December 10, respondent appeared at the police department to claim his property. The marihuana was retained by police. </s> Respondent was subsequently arrested on charges of possession of marihuana. His motion to suppress the evidence yielded by the inventory search was denied; he was convicted after a jury trial and sentenced to a fine of $100 and 14 days' incarceration in the county jail. On appeal, the Supreme Court of South Dakota reversed [428 U.S. 364, 367] the conviction. 89 S. D. ___, 228 N. W. 2d 152. The court concluded that the evidence had been obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. We granted certiorari, 423 U.S. 923 (1975), and we reverse. </s> (2) </s> This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are "effects" and thus within the reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439 (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589 (1974); Cady v. Dombrowski, supra, at 439-440; Chambers v. Maroney, 399 U.S. 42, 48 (1970). </s> The reason for this well-settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. Carroll v. United States, 267 U.S. 132, 153 -154 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459 -460 (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, supra, at 51-52; Cooper v. California, 386 U.S. 58 (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office. 2 In discharging their varied responsibilities [428 U.S. 364, 368] for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra, at 442. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order. </s> The expectation of privacy as to automobiles in further diminished by the obviously public nature of automobile travel. Only two Terms ago, the Court noted: </s> "One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view." Cardwell v. Lewis, supra, at 590. </s> In the interests of public safety and as part of what the Court has called "community caretaking functions," Cady v. Dombrowski, supra, at 441, automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. [428 U.S. 364, 369] Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. 3 The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge. </s> When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, supra, at 61-62. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S. E. 2d 781, 782 (1971), cert. denied, 405 U.S. 1073 (1972); Warrix v. State, 50 Wis. 2d 368, 376, 184 N. W. 2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned. </s> These caretaking procedures have almost uniformly been upheld by the state courts, which by virtue of the localized nature of traffic regulation have had considerable occasion to deal with the issue. 4 Applying the [428 U.S. 364, 370] Fourth Amendment standard of "reasonableness," 5 the state courts have overwhelmingly concluded that, even if an inventory is characterized as a "search," 6 the [428 U.S. 364, 371] intrusion is constitutionally permissible. See, e. g., City of St. Paul v. Myles, 298 Minn. 298, 300-301, 218 N. W. 2d 697, 699 (1974); State v. Tully, 166 Conn. 126, 136, 348 A. 2d 603, 609 (1974); People v. Trusty, 183 Colo. 291, 296-297, 516 P.2d 423, 425-426 (1973); People v. Sullivan, 29 N. Y. 2d 69, 73, 272 N. E. 2d 464, 466 (1971); Cabbler v. Commonwealth, supra; Warrix v. State, supra; State v. Wallen, 185 Neb. 44, 173 N. W. 2d 372, cert. denied, 399 U.S. 912 (1970); State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968); State v. Montague, 73 Wash. 2d 381, 438 P.2d 571 (1968); People v. Clark, 32 Ill. App. 3d 898, 336 N. E. 2d 892 (1975); State v. Achter, 512 S. W. 2d 894 (Mo. Ct. App. 1974); Bennett v. State, 507 P.2d 1252 (Okla. Crim. App. 1973); People v. Willis, 46 Mich. App. 436, 208 N. W. 2d 204 (1973); State v. All, 17 N.C. App. 284, 193 S. E. 2d 770, cert. denied, 414 U.S. 866 (1973); Godbee v. State, 224 So.2d 441 (Fla. Dist. Ct. App. 1969). Even the seminal state decision relied on by the South Dakota Supreme Court in reaching the contrary result. Mozzetti v. Superior Court, 4 Cal. 2d 699, 484 P.2d 84 (1971), expressly approved police caretaking activities resulting in the securing of property within the officer's plain view. </s> The majority of the Federal Courts of Appeals have likewise sustained inventory procedures as reasonable police intrusions. As Judge Wisdom has observed: </s> "[W]hen the police take custody of any sort of container [such as] an automobile . . . it is reasonable to search the container to itemize the property to be held by the police. [This reflects] the underlying principle that the fourth amendment proscribes only unreasonable searches." United States v. Gravitt, 484 F.2d 375, 378 (CA5 1973), cert. denied, 414 U.S. 1135 (1974) (emphasis in original). [428 U.S. 364, 372] </s> See also Cabbler v. Superintendent, 528 F.2d 1142 (CA4 1975), cert. pending, No. 75-1463; Barker v. Johnson, 484 F.2d 941 (CA6 1973); United States v. Mitchell, 458 F.2d 960 (CA9 1972); United States v. Lipscomb, 435 F.2d 795 (CA5 1970), cert. denied, 401 U.S. 980 (1971); United States v. Pennington, 441 F.2d 249 (CA5), cert. denied, 404 U.S. 854 (1971); United States v. Boyd, 436 F.2d 1203 (CA5 1971); Cotton v. United States, 371 F.2d 385 (CA9 1967). Accord, Lowe v. Hopper, 400 F. Supp. 970, 976-977 (SD Ga. 1975); United States v. Spitalieri, 391 F. Supp. 167, 169-170 (ND Ohio 1975); United States v. Smith, 340 F. Supp. 1023 (Conn. 1972); United States v. Fuller, 277 F. Supp. 97 (DC 1967), conviction aff'd, 139 U.S. App. D.C. 375, 433 F.2d 533 (1970). These cases have recognized that standard inventories often include an examination of the glove compartment, since it is a customary place for documents of ownership and registration, United States v. Pennington, supra, at 251, as well as a place for the temporary storage of valuables. </s> (3) </s> The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. In the first such case, Mr. Justice Black made plain the nature of the inquiry before us: </s> "But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment." Cooper v. California, 386 U.S., at 61 (emphasis added). </s> And, in his last writing on the Fourth Amendment, Mr. Justice Black said: </s> "[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It [428 U.S. 364, 373] prohibits only `unreasonable searches and seizures.' The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts." Coolidge v. New Hampshire, 403 U.S., at 509 -510 (concurring and dissenting) (emphasis added). </s> In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. In Cooper v. California, supra, the Court upheld the inventory of a car impounded under the authority of a state forfeiture statute. Even though the inventory was conducted in a distinctly criminal setting 7 and carried out a week after the car had been impounded, the Court nonetheless found that the car search, including examination of the glove compartment where contraband was found, was reasonable under the circumstances. This conclusion was reached despite the fact that no warrant had issued and probable cause to search for the contraband in the vehicle had not been established. The Court said in language explicitly applicable here: </s> "It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it." 386 U.S., at 61 -62. 8 </s> [428 U.S. 364, 374] </s> In the following Term, the Court in Harris v. United States, 390 U.S. 234 (1968), upheld the introduction of evidence, seized by an officer who, after conducting an inventory search of a car and while taking means to safeguard it, observed a car registration card lying on the metal stripping of the car door. Rejecting the argument that a warrant was necessary, the Court held that the intrusion was justifiable since it was "taken to protect the car while it was in police custody." Id., at 236. 9 </s> Finally, in Cady v. Dombrowski, supra, the Court upheld a warrantless search of an automobile towed to a private garage even though no probable cause existed to believe that the vehicle contained fruits of a crime. The sole justification for the warrantless incursion was that it was incident to the caretaking function of the local police to protect the community's safety. Indeed, the protective search was instituted solely because local police "were under the impression" that the incapacitated driver, a Chicago police officer, was required to carry his service revolver at all times; the police had reasonable grounds to believe a weapon might be in the car, and thus available to vandals. 413 U.S., at 436 . The Court carefully noted that the protective search was [428 U.S. 364, 375] carried out in accordance with standard procedures in the local police department, ibid., a factor tending to ensure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function. See United States v. Spitalieri, 391 F. Supp., at 169. In reaching this result, the Court in Cady distinguished Preston v. United States, 376 U.S. 364 (1964), on the grounds that the holding, invalidating a car search conducted after a vagrancy arrest, "stands only for the proposition that the search challenged there could not be justified as one incident to an arrest." 413 U.S., at 444 . Preston therefore did not raise the issue of the constitutionality of a protective inventory of a car lawfully within police custody. </s> The holdings in Cooper, Harris, and Cady point the way to the correct resolution of this case. None of the three cases, of course, involves the precise situation presented here; but, as in all Fourth Amendment cases, we are obliged to look to all the facts and circumstances of this case in light of the principles set forth in these prior decisions. </s> "[W]hether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case . . . ." Cooper v. California, 386 U.S., at 59 . </s> The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded automobile. Cf. United States v. Lawson, 487 F.2d 468, 471 (CA8 1973). The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of [428 U.S. 364, 376] valuables inside the car. As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive. 10 </s> On this record we conclude that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not "unreasonable" under the Fourth Amendment. </s> The judgment of the South Dakota Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. </s> Reversed and remanded. </s> Footnotes [Footnote 1 At respondent's trial, the officer who conducted the inventory testified as follows: </s> "Q. And why did you inventory this car? </s> "A. Mainly for safekeeping, because we have had a lot of trouble in the past of people getting into the impound lot and breaking into cars and stealing stuff out of them. </s> "Q. Do you know whether the vehicles that were broken into . . . were locked or unlocked? </s> "A. Both of them were locked, they would be locked." Record 74. In describing the impound lot, the officer stated: </s> "A. It's the old county highway yard. It has a wooden fence partially around part of it, and kind of a dilapidated wire fence, a makeshift fence." Id., at 73. </s> [Footnote 2 In Camara v. Municipal Court, 387 U.S. 523 (1967), and See v. City of Seattle, 387 U.S. 541 (1967), the Court held that a warrant was required to effect an unconsented administrative entry [428 U.S. 364, 368] into and inspection of private dwellings or commercial premises to ascertain health or safety conditions. In contrast, this procedure has never been held applicable to automobile inspections for safety purposes. </s> [Footnote 3 The New York Court of Appeals has noted that in New York City alone, 108,332 cars were towed away for traffic violations during 1969. People v. Sullivan, 29 N. Y. 2d 69, 71, 272 N. E. 2d 464, 465 (1971). </s> [Footnote 4 In contrast to state officials engaged in everyday caretaking functions: </s> "The contact with vehicles by federal law enforcement officers [428 U.S. 364, 370] usually, if not always, involves the detection or investigation of crimes unrelated to the operation of a vehicle." Cady v. Dombrowski, 413 U.S. 433, 440 (1973). </s> [Footnote 5 In analyzing the issue of reasonableness vel non, the courts have not sought to determine whether a protective inventory was justified by "probable cause." The standard of probable cause is peculiarly related to criminal investigations, not routine, noncriminal procedures. See generally Note, Warrantless Searches and Seizures of Automobiles, 87 Harv. L. Rev. 835, 850-851 (1974). The probable-cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions, particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations. </s> In view of the noncriminal context of inventory searches, and the inapplicability in such a setting of the requirement of probable cause, courts have held - and quite correctly - that search warrants are not required, linked as the warrant requirement textually is to the probable-cause concept. We have frequently observed that the warrant requirement assures that legal inferences and conclusions as to probable cause will be drawn by a neutral magistrate unrelated to the criminal investigative-enforcement process. With respect to noninvestigative police inventories of automobiles lawfully within governmental custody, however, the policies underlying the warrant requirement, to which MR. JUSTICE POWELL refers, are inapplicable. </s> [Footnote 6 Given the benign noncriminal context of the intrusion, see Wyman v. James, 400 U.S. 309, 317 (1971), some courts have concluded that an inventory does not constitute a search for Fourth Amendment purposes. See, e. g., People v. Sullivan, supra, at 77, 272 N. E. 2d, at 469; People v. Willis, 46 Mich. App. 436, 208 N. W. 2d 204 (1973); State v. Wallen, 185 Neb. 44, 49-50, 173 N. W. 2d 372, 376, cert. denied, 399 U.S. 912 (1970). Other courts have expressed doubts as to whether the intrusion is classifiable as a search. State v. All, 17 N.C. App. 284, 286, 193 S. E. 2d 770, 772, cert. denied, 414 U.S. 866 (1973). Petitioner, however, has expressly abandoned the contention that the inventory in this case is exempt from the Fourth Amendment standard of reasonableness. Tr. of Oral Arg. 5. </s> [Footnote 7 In Cooper, the owner had been arrested on narcotics charges, and the car was taken into custody pursuant to the state forfeiture statute. The search was conducted several months before the forfeiture proceedings were actually instituted. </s> [Footnote 8 There was, of course, no certainty at the time of the search that forfeiture proceedings would ever be held. Accordingly, there [428 U.S. 364, 374] was no reason for the police to assume automatically that the automobile would eventually be forfeited to the State. Indeed, as the California Court of Appeal stated, "[T]he instant record nowhere discloses that forfeiture proceedings were instituted in respect to defendant's car . . . ." People v. Cooper, 234 Cal. App. 2d 587, 596, 44 Cal. Rptr. 483, 489 (1965). No reason would therefore appear to limit Cooper to an impoundment pursuant to a forfeiture statute. </s> [Footnote 9 The Court expressly noted that the legality of the inventory was not presented, since the evidence was discovered at the point when the officer was taking protective measures to secure the automobile from the elements. But the Court clearly held that the officer acted properly in opening the car for protective reasons. </s> [Footnote 10 The inventory was not unreasonable in scope. Respondent's motion to suppress in state court challenged the inventory only as to items inside the car not in plain view. But once the policeman was lawfully inside the car to secure the personal property in plain view, it was not unreasonable to open the unlocked glove compartment, to which vandals would have had ready and unobstructed access once inside the car. </s> The "consent" theory advanced by the dissent rests on the assumption that the inventory is exclusively for the protection of the car owner. It is not. The protection of the municipality and public officers from claims of lost or stolen property and the protection of the public from vandals who might find a firearm, Cady v. Dombrowski, or as here, contraband drugs, are also crucial. </s> MR. JUSTICE POWELL, concurring. </s> While I join the opinion of the Court, I add this opinion to express additional views as to why the search conducted in this case is valid under the Fourth and Fourteenth Amendments. This inquiry involves two distinct questions: (i) whether routine inventory searches are impermissible, and (ii) if not, whether they must be conducted pursuant to a warrant. [428 U.S. 364, 377] </s> I </s> The central purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. See, e. g., United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Camara v. Municipal Court, 387 U.S. 523, 528 (1967). None of our prior decisions is dispositive of the issue whether the Amendment permits routine inventory "searches" 1 of automobiles. 2 Resolution of this [428 U.S. 364, 378] question requires a weighing of the governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects. United States v. Martinez-Fuerte, post, at 555; United States v. Brignoni-Ponce, supra, at 878-879; United States v. Ortiz, 422 U.S. 891, 892 (1975); Cady v. Dombrowski, 413 U.S. 433, 447 -448 (1973); Terry v. Ohio, 392 U.S. 1, 20 -21 (1968). Cf. Camara v. Municipal Court, supra, at 534-535. As noted in the Court's opinion, see ante, at 369, three interests generally have been advanced in support of inventory searches: (i) protection of the police from danger; (ii) protection of the police against claims and disputes over lost or stolen property; and (iii) protection of the owner's property while it remains in police custody. </s> Except in rare cases, there is little danger associated with impounding unsearched automobiles. But the occasional danger that may exist cannot be discounted entirely. See Cooper v. California, 386 U.S. 58, 61 -62 (1967). The harmful consequences in those rare cases may be great, and there does not appear to be any effective way of identifying in advance those circumstances or classes of automobile impoundments which represent a greater risk. Society also has an important interest in minimizing the number of false claims filed against police since they may diminish the community's respect for law enforcement generally and lower department morale, thereby impairing the effectiveness of the police. 3 It [428 U.S. 364, 379] is not clear, however, that inventories are a completely effective means of discouraging false claims, since there remains the possibility of accompanying such claims with an assertion that an item was stolen prior to the inventory or was intentionally omitted from the police records. </s> The protection of the owner's property is a significant interest for both the policeman and the citizen. It is argued that an inventory is not necessary since locked doors and rolled-up windows afford the same protection that the contents of a parked automobile normally enjoy. 4 But many owners might leave valuables in their automobile temporarily that they would not leave there unattended for the several days that police custody may last. There is thus a substantial gain in security if automobiles are inventoried and valuable items removed for storage. And, while the same security could be attained by posting a guard at the storage lot, that alternative may be prohibitively expensive, especially for smaller jurisdictions. 5 </s> Against these interests must be weighed the citizen's interest in the privacy of the contents of his automobile. Although the expectation of privacy in an automobile is significantly less than the traditional expectation of privacy associated with the home, United States v. Martinez-Fuerte, post, at 561-562; United States v. Ortiz, supra, at 896 n. 2; see Cardwell v. Lewis, 417 U.S. 583, 590 -591 (1974) (plurality opinion), the unrestrained search [428 U.S. 364, 380] of an automobile and its contents would constitute a serious intrusion upon the privacy of the individual in many circumstances. But such a search is not at issue in this case. As the Court's opinion emphasizes, the search here was limited to an inventory of the unoccupied automobile and was conducted strictly in accord with the regulations of the Vermillion Police Department. 6 Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles. 7 </s> I agree with the Court that the Constitution permits routine inventory searches, and turn next to the question whether they must be conducted pursuant to a warrant. [428 U.S. 364, 381] </s> II </s> While the Fourth Amendment speaks broadly in terms of "unreasonable searches and seizures," 8 the decisions of this Court have recognized that the definition of "reasonableness" turns, at least in part, on the more specific dictates of the Warrant Clause. See United States v. United States District Court, 407 U.S. 297, 315 (1972); Katz v. United States, 389 U.S. 347, 356 (1967); Camara v. Municipal Court, 387 U.S., at 528 . As the Court explained in Katz v. United States, supra, at 357, "[s]earches conducted without warrants have been held unlawful `notwithstanding facts unquestionably showing probable cause,' Agnello v. United States, 269 U.S. 20, 33 , for the Constitution requires `that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . .' Wong Sun v. United States, 371 U.S. 471, 481 -482." Thus, although "[s]ome have argued that `[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable,' United States v. Rabinowitz, 339 U.S. 56, 66 (1950)," "[t]his view has not been accepted." United States v. United States District Court, supra, at 315, and n. 16. See Chimel v. California, 395 U.S. 752 (1969). Except in a few carefully defined classes of cases, a search of private property without valid consent is "unreasonable" unless it has been authorized by a valid search warrant. See, e. g., Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973); Stoner v. California, 376 U.S. 483, 486 (1964); [428 U.S. 364, 382] Camara v. Municipal Court, supra, at 528; United States v. Jeffers, 342 U.S. 48, 51 (1951); Agnello v. United States, 269 U.S. 20, 30 (1925). </s> Although the Court has validated warrantless searches of automobiles in circumstances that would not justify a search of a home or office, Cady v. Dombrowski, 413 U.S. 433 (1973); Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925), these decisions establish no general "automobile exception" to the warrant requirement. See Preston v. United States, 376 U.S. 364 (1964). Rather, they demonstrate that "`for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars,'" Cady v. Dombrowski, supra, at 439, quoting Chambers v. Maroney, supra, at 52, a difference that may in some cases justify a warrantless search. 9 </s> The routine inventory search under consideration in this case does not fall within any of the established exceptions to the warrant requirement. 10 But examination of the interests which are protected when searches are [428 U.S. 364, 383] conditioned on warrants issued by a judicial officer reveals that none of these is implicated here. A warrant may issue only upon "probable cause." In the criminal context the requirement of a warrant protects the individual's legitimate expectation of privacy against the overzealous police officer. "Its protection consists in requiring that those inferences [concerning probable cause] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948). See, e. g., United States v. United States District Court, supra, at 316-318. Inventory searches, however, are not conducted in order to discover evidence of crime. The officer does not make a discretionary determination to search based on a judgment that certain conditions are present. Inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized. There are thus no special facts for a neutral magistrate to evaluate. </s> A related purpose of the warrant requirement is to prevent hindsight from affecting the evaluation of the reasonableness of a search. See United States v. Martinez-Fuerte, post, at 565; cf. United States v. Watson, 423 U.S. 411, 455 n. 22 (1976) (MARSHALL, J., dissenting). In the case of an inventory search conducted in accordance with standard police department procedures, there is no significant danger of hindsight justification. The absence of a warrant will not impair the effectiveness of post-search review of the reasonableness of a particular inventory search. </s> Warrants also have been required outside the context of a criminal investigation. In Camara v. Municipal Court, the Court held that, absent consent, a warrant was necessary to conduct an areawide building code inspection, [428 U.S. 364, 384] even though the search could be made absent cause to believe that there were violations in the particular buildings being searched. In requiring a warrant the Court emphasized that "[t]he practical effect of [the existing warrantless search procedures had been] to leave the occupant subject to the discretion of the official in the field," since </s> "when [an] inspector demands entry, the occupant ha[d] no way of knowing whether enforcement of the municipal code involved require[d] inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself [was] acting under proper authorization." 387 U.S., at 532 . </s> In the inventory search context these concerns are absent. The owner or prior occupant of the automobile is not present, nor, in many cases, is there any real likelihood that he could be located within a reasonable period of time. More importantly, no significant discretion is placed in the hands of the individual officer: he usually has no choice as to the subject of the search or its scope. 11 </s> In sum, I agree with the Court that the routine inventory search in this case is constitutional. </s> [Footnote 1 Routine inventories of automobiles intrude upon an area in which the private citizen has a "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Thus, despite their benign purpose, when conducted by government officials they constitute "searches" for purposes of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 18 n. 15 (1968); United States v. Lawson, 487 F.2d 468 (CA8 1973); Mozzetti v. Superior Court, 4 Cal. 3d 699, 709-710, 484 P.2d 84, 90-91 (1971) (en banc). Cf. Cardwell v. Lewis, 417 U.S. 583, 591 (1974) (plurality opinion). </s> [Footnote 2 The principal decisions relied on by the State to justify the inventory search in this case, Harris v. United States, 390 U.S. 234 (1968); Cooper v. California, 386 U.S. 58 (1967); and Cady v. Dombrowski, 413 U.S. 433 (1973), each relied in part on significant factors not found here. Harris only involved an application of the "plain view" doctrine. In Cooper the Court validated an automobile search that took place one week after the vehicle was impounded on the theory that the police had a possessory interest in the car based on a state forfeiture statute requiring them to retain it some four months until the forfeiture sale. See 386 U.S., at 61 -62. Finally, in Cady the Court held that the search of an automobile trunk "which the officer reasonably believed to contain a gun" was not unreasonable within the meaning of the Fourth and Fourteenth Amendments. 413 U.S., at 448 . See also id., at 436-437. The police in a typical inventory search case, however, will have no reasonable belief as to the particular automobile's contents. And, although the police in this case knew with certainty that there were items of personal property within the exposed interior of the car - i. e., the watch on the dashboard - see ante, at 366, this information [428 U.S. 364, 378] alone did not, in the circumstances of this case, provide additional justification for the search of the closed console glove compartment in which the contraband was discovered. </s> [Footnote 3 The interest in protecting the police from liability for lost or stolen property is not relevant in this case. Respondent's motion to suppress was limited to items inside the automobile not in plain [428 U.S. 364, 379] view. And, the Supreme Court of South Dakota here held that the removal of objects in plain view, and the closing of windows and locking of doors, satisfied any duty the police department owed the automobile's owner to protect property in police possession. 89 S. D. ___, ___, 228 N. W. 2d 152, 159 (1975). </s> [Footnote 4 See Mozzetti v. Superior Court, supra, at 709-710, 484 P.2d, at 90-91. </s> [Footnote 5 See Note, Warrantless Searches and Seizures of Automobiles, 87 Harv. L. Rev. 835, 853 (1974). </s> [Footnote 6 A complete "inventory report" is required of all vehicles impounded by the Vermillion Police Department. The standard inventory consists of a survey of the vehicle's exterior - windows, fenders, trunk, and hood - apparently for damage, and its interior, to locate "valuables" for storage. As part of each inventory a standard report form is completed. The report in this case listed the items discovered in both the automobile's interior and the unlocked glove compartment. The only notation regarding the trunk was that it was locked. A police officer testified that all impounded vehicles are searched, that the search always includes the glove compartment, and that the trunk had not been searched in this case because it was locked. See Record 33-34, 73-79. </s> [Footnote 7 As part of their inventory search the police may discover materials such as letters or checkbooks that "touch upon intimate areas of an individual's personal affairs," and "reveal much about a person's activities, associations, and beliefs." California Bankers Assn. v. Shultz, 416 U.S. 21, 78 -79 (1974) (POWELL, J., concurring). See also Fisher v. United States, 425 U.S. 391, 401 n. 7 (1976). In this case the police found, inter alia, "miscellaneous papers," a checkbook, an installment loan book, and a social security status card. Record 77. There is, however, no evidence in the record that in carrying out their established inventory duties the Vermillion police do other than search for and remove for storage such property without examining its contents. </s> [Footnote 8 The Amendment provides that </s> "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." </s> [Footnote 9 This difference turns primarily on the mobility of the automobile and the impracticability of obtaining a warrant in many circumstances, e. g., Carroll v. United States, 267 U.S. 132, 153 -154 (1925). The lesser expectation of privacy in an automobile also is important. See United States v. Ortiz, 422 U.S. 891, 896 n. 2 (1975); Cardwell v. Lewis, 417 U.S., at 590 ; Almeida-Sanchez v. United States, 413 U.S. 266, 279 (1973) (POWELL, J., concurring). See Cady v. Dombrowski, 413 U.S., at 441 -442. </s> [Footnote 10 See, e. g., Chimel v. California, 395 U.S. 752 (1969); Terry v. Ohio, 392 U.S. 1 (1968); Warden v. Hayden, 387 U.S. 294, 298 -300 (1967); Cooper v. California, 386 U.S. 58 (1967); Brinegar v. United States, 338 U.S. 160, 174 -177 (1949); Carroll v. United States, supra, at 153, 156. See also McDonald v. United States, 335 U.S. 451, 454 -456 (1948); United States v. Mapp, 476 F.2d 67, 76 (CA2 1973) (listing then-recognized exceptions to warrant requirement: (i) hot pursuit; (ii) plain-view doctrine; (iii) emergency situation; (iv) automobile search; (v) consent; and (vi) incident to arrest). </s> [Footnote 11 In this case, for example, the officer who conducted the search testified that the offending automobile was towed to the city impound lot after a second ticket had been issued for a parking violation. The officer further testified that all vehicles taken to the lot are searched in accordance with a "standard inventory sheet" and "all items [discovered in the vehicles] are removed for safekeeping." Record 74. See n. 6, supra. </s> MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEWART join, dissenting. </s> The Court today holds that the Fourth Amendment permits a routine police inventory search of the closed [428 U.S. 364, 385] glove compartment of a locked automobile impounded for ordinary traffic violations. Under the Court's holding, such a search may be made without attempting to secure the consent of the owner and without any particular reason to believe the impounded automobile contains contraband, evidence, or valuables, or presents any danger to its custodians or the public. 1 Because I believe this holding to be contrary to sound elaboration of established Fourth Amendment principles, I dissent. </s> As MR. JUSTICE POWELL recognizes, the requirement of a warrant aside, resolution of the question whether an inventory search of closed compartments inside a locked automobile can ever be justified as a constitutionally "reasonable" search 2 depends upon a reconciliation of the owner's constitutionally protected privacy interests against governmental intrusion, and legitimate governmental interests furthered by securing the car and its contents. Terry v. Ohio, 392 U.S. 1, 20 -21 (1968); Camara v. Municipal Court, 387 U.S. 523, 534 -535, 536-537 (1967). The Court fails clearly to articulate the reasons for its reconciliation of these interests in this case, but it is at least clear to me that the considerations [428 U.S. 364, 386] alluded to by the Court, and further discussed by MR. JUSTICE POWELL, are insufficient to justify the Court's result in this case. </s> To begin with, the Court appears to suggest by reference to a "diminished" expectation of privacy, ante, at 368, that a person's constitutional interest in protecting the integrity of closed compartments of his locked automobile may routinely be sacrificed to governmental interests requiring interference with that privacy that are less compelling than would be necessary to justify a search of similar scope of the person's home or office. This has never been the law. The Court correctly observes that some prior cases have drawn distinctions between automobiles and homes or offices in Fourth Amendment cases; but even as the Court's discussion makes clear, the reasons for distinction in those cases are not present here. Thus, Chambers v. Maroney, 399 U.S. 42 (1970), and Carroll v. United States, 267 U.S. 132 (1925), permitted certain probable-cause searches to be carried out without warrants in view of the exigencies created by the mobility of automobiles, but both decisions reaffirmed that the standard of probable cause necessary to authorize such a search was no less than the standard applicable to search of a home or office. Chambers, supra, at 51; Carroll, supra, at 155-156. 3 In other contexts the Court has recognized that automobile travel sacrifices some privacy interests to the publicity of plain view, e. g., Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion); cf. Harris v. United States, 390 U.S. 234 (1968). But this recognition, too, is inapposite here, for there is no question of plain view in [428 U.S. 364, 387] this case. 4 Nor does this case concern intrusions of the scope that the Court apparently assumes would ordinarily be permissible in order to insure the running safety of a car. While it may be that privacy expectations associated with automobile travel are in some regards less than those associated with a home or office, see United States v. Martinez-Fuerte, post, at 561-562, it is equally clear that "[t]he word `automobile' is not a talisman in whose presence the Fourth Amendment fades away . . .," Coolidge v. New Hampshire, 403 U.S. 443 , [428 U.S. 364, 388] 461 (1971). 5 Thus, we have recognized that "[a] search, even of an automobile, is a substantial invasion of privacy," United States v. Ortiz, 422 U.S. 891, 896 (1975) (emphasis added), and accordingly or cases have consistently recognized that the nature and substantiality of interest required to justify a search of private areas of an automobile is no less than that necessary to justify an intrusion of similar scope into a home or office. See, e. g., United States v. Ortiz, supra; Almeida-Sanchez v. United States, 413 U.S. 266, 269 -270 (1973); Coolidge, supra; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221 -222 (1968); Preston v. United States, 376 U.S. 364 (1964). 6 </s> [428 U.S. 364, 389] </s> The Court's opinion appears to suggest that its result may in any event be justified because the inventory search procedure is a "reasonable" response to </s> "three distinct needs: the protection of the owner's property while it remains in police custody . . .; the protection of the police against claims or disputes over lost or stolen property . . .; and the protection of the police from potential danger." Ante, at 369. 7 </s> This suggestion is flagrantly misleading, however, because the record of this case explicitly belies any relevance of the last two concerns. In any event it is my view that none of these "needs," separately or together, can suffice to justify the inventory search procedure approved by the Court. </s> First, this search cannot be justified in any way as a safety measure, for - though the Court ignores it - the sole purpose given by the State for the Vermillion police's inventory procedure was to secure valuables, Record 75, 98. Nor is there any indication that the officer's search in this case was tailored in any way to safety concerns, or that ordinarily it is so circumscribed. Even aside from the actual basis for the police practice in this case, however, I do not believe that any blanket safety argument could justify a program of routine [428 U.S. 364, 390] searches of the scope permitted here. As MR. JUSTICE POWELL recognizes, ordinarily "there is little danger associated with impounding unsearched automobiles," ante, at 378. 8 Thus, while the safety rationale may not be entirely discounted when it is actually relied upon, it surely cannot justify the search of every car upon the basis of undifferentiated possibility of harm; on the contrary, such an intrusion could ordinarily be justified only in those individual cases where the officer's inspection was prompted by specific circumstances indicating the possibility [428 U.S. 364, 391] of a particular danger. See Terry v. Ohio, 392 U.S., at 21 , 27; cf. Cady v. Dombrowski, 413 U.S. 433, 448 (1973). </s> Second, the Court suggests that the search for valuables in the closed glove compartment might be justified as a measure to protect the police against lost property claims. Again, this suggestion is belied by the record, since - although the Court declines to discuss it - the South Dakota Supreme Court's interpretation of state law explicitly absolves the police, as "gratuitous depositors," from any obligation beyond inventorying objects in plain view and locking the car. 89 S. D. ___, ___, 228 N. W. 2d 152, 159 (1975). 9 Moreover, as MR. JUSTICE POWELL notes, ante, at 378-379, it may well be doubted that an inventory procedure would in any event work significantly to minimize the frustrations of false claims. 10 </s> Finally, the Court suggests that the public interest in protecting valuables that may be found inside a closed compartment of an impounded car may justify the inventory procedure. I recognize the genuineness of this governmental interest in protecting property from pilferage. But even if I assume that the posting of a guard would be fiscally impossible as an alternative means to [428 U.S. 364, 392] the same protective end, 11 I cannot agree with the Court's conclusion. The Court's result authorizes - indeed it appears to require - the routine search of nearly every 12 car impounded. 13 In my view, the Constitution does not permit such searches as a matter of routine; absent specific consent, such a search is permissible only in exceptional circumstances of particular necessity. </s> It is at least clear that any owner might prohibit the police from executing a protective search of his impounded car, since by hypothesis the inventory is conducted for the owner's benefit. Moreover, it is obvious that not everyone whose car is impounded would want it to be searched. Respondent himself proves this; but [428 U.S. 364, 393] one need not carry contraband to prefer that the police not examine one's private possessions. Indeed, that preference is the premise of the Fourth Amendment. Nevertheless, according to the Court's result the law may presume that each owner in respondent's position consents to the search. I cannot agree. In my view, the Court's approach is squarely contrary to the law of consent; 14 it ignores the duty, in the absence of consent, to analyze in each individual case whether there is a need to search a particular car for the protection of its owner which is sufficient to outweigh the particular invasion. It is clear to me under established principles that in order to override the absence of explicit consent, such a search must at least be conditioned upon the fulfillment of two requirements. 15 First, there must be specific cause to believe that a search of the scope to be undertaken is necessary in order to preserve the integrity of particular valuable property threatened by the impoundment: </s> "[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion." Terry v. Ohio, 392 U.S., at 21 . </s> Such a requirement of "specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence," id., at 21 n. 18, for "[t]he basic purpose of this [428 U.S. 364, 394] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 U.S., at 528 . Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 883 -884 (1975); Cady v. Dombrowski, 413 U.S., at 448 ; Terry v. Ohio, supra, at 27. Second, even where a search might be appropriate, such an intrusion may only follow the exhaustion and failure of reasonable efforts under the circumstances to identify and reach the owner of the property in order to facilitate alternative means of security or to obtain his consent to the search, for in this context the right to refuse the search remains with the owner. Cf. Bumper v. North Carolina, 391 U.S. 543 (1968). 16 </s> Because the record in this case shows that the procedures followed by the Vermillion police in searching respondent's car fall far short of these standards, in my view the search was impermissible and its fruits must be suppressed. First, so far as the record shows, the police in this case had no reason to believe that the glove compartment of the impounded car contained particular property of any substantial value. Moreover, the owner had apparently thought it adequate to protect whatever he left in the car overnight on the street in a business area simply to lock the car, and there is nothing in the record to show that the impoundment [428 U.S. 364, 395] lot would prove a less secure location against pilferage, 17 cf. Mozzetti v. Superior Court, 4 Cal. 3d 699, 707, 484 P.2d 84, 89 (1971), particularly when it would seem likely that the owner would claim his car and its contents promptly, at least if it contained valuables worth protecting. 18 Even if the police had cause to believe that the impounded car's glove compartment contained particular valuables, however, they made no effort to secure the owner's consent to the search. Although the Court relies, as it must, upon the fact that respondent was not present to make other arrangements for the care of his belongings, ante, at 375, in my view that is not the end of the inquiry. Here the police readily ascertained the ownership of the vehicle, Record 98-99, yet they searched it immediately without taking any steps to locate respondent and procure his consent to the inventory or advise him to make alternative arrangements to safeguard his property, id., at 32, 72, 73, 79. Such a failure is inconsistent with the rationale that the inventory procedure is carried out for the benefit of the owner. </s> The Court's result in this case elevates the conservation of property interests - indeed mere possibilities of property interests - above the privacy and security interests [428 U.S. 364, 396] protected by the Fourth Amendment. For this reason I dissent. On the remand it should be clear in any event that this Court's holding does not preclude a contrary resolution of this case or others involving the same issues under any applicable state law. See Oregon v. Hass, 420 U.S. 714, 726 (1975) (MARSHALL, J., dissenting). </s> [Footnote 1 The Court does not consider, however, whether the police might open and search the glove compartment if it is locked, or whether the police might search a locked trunk or other compartment. </s> [Footnote 2 I agree with MR. JUSTICE POWELL's conclusion, ante, at 377 n. 1, that, as petitioner conceded, Tr. of Oral Arg. 5, the examination of the closed glove compartment in this case is a "search." See Camara v. Municipal Court, 387 U.S. 523, 530 (1967): "It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." See also Cooper v. California, 386 U.S. 58, 61 (1967), quoted in n. 5, infra. Indeed, the Court recognized in Harris v. United States, 390 U.S. 234, 236 (1968), that the procedure invoked here would constitute a search for Fourth Amendment purposes. </s> [Footnote 3 This is, of course, "probable cause in the sense of specific knowledge about a particular automobile." Almeida-Sanchez v. United States, 413 U.S. 266, 281 (1973) (POWELL, J., concurring). </s> [Footnote 4 In its opinion below, the Supreme Court of South Dakota stated that in its view the police were constitutionally justified in entering the car to remove, list, and secure objects in plain view from the outside of the car. 89 S. D. ___, ___, 228 N. W. 2d 152, 158-159 (1975). This issue is not presented on certiorari here. </s> Contrary to the Court's assertion, however, ante, at 375-376, the search of respondent's car was not in any way "prompted by the presence in plain view of a number of valuables inside the car." In fact, the record plainly states that every vehicle taken to the city impound lot was inventoried, Record 33, 74, 75, and that as a matter of "standard procedure," "every inventory search" would involve entry into the car's closed glove compartment. Id., at 43, 44. See also Tr. of Oral Arg. 7. In any case, as MR. JUSTICE POWELL recognizes, ante, at 377-378, n. 2, entry to remove plain-view articles from the car could not justify a further search into the car's closed areas. Cf. Chimel v. California, 395 U.S. 752, 763 , 764-768 (1969). Despite the Court's confusion on this point - further reflected by its discussion of Mozzetti v. Superior Court, 4 Cal. 3d 699, 484 P.2d 84 (1971), ante, at 371, and its reliance on state and lower federal-court cases approving nothing more than inventorying of plain-view items, e. g., Barker v. Johnson, 484 F.2d 941 (CA6 1973); United States v. Mitchell, 458 F.2d 960 (CA9 1972); United States v. Fuller, 277 F. Supp. 97 (DC 1967), conviction aff'd, 139 U.S. App. D.C. 375, 433 F.2d 533 (1970); State v. Tully, 166 Conn. 126, 348 A. 2d 603 (1974); State v. Achter, 512 S. W. 2d 894 (Mo. Ct. App. 1974); State v. All, 17 N.C. App. 284, 193 S. E. 2d 770, cert. denied, 414 U.S. 866 (1973) - I must conclude that the Court's holding also permits the intrusion into a car and its console even in the absence of articles in plain view. </s> [Footnote 5 Moreover, as the Court observed in Cooper v. California, supra, at 61: "`[L]awful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it.'" </s> [Footnote 6 It would be wholly unrealistic to say that there is no reasonable and actual expectation in maintaining the privacy of closed compartments of a locked automobile, when it is customary for people in this day to carry their most personal and private papers and effects in their automobiles from time to time. Cf. Katz v. United States, 389 U.S. 347, 352 (1967) (opinion of the Court); id., at 361 (Harlan, J., concurring). Indeed, this fact is implicit in the very basis of the Court's holding - that such compartments may contain valuables in need of safeguarding. </s> MR. JUSTICE POWELL observes, ante, at 380, and n. 7, that the police would not be justified in sifting through papers secured under the procedure employed here. I agree with this, and I note that the Court's opinion does not authorize the inspection of suitcases, boxes, or other containers which might themselves be sealed, removed, and secured without further intrusion. See, e. g., United States v. Lawson, 487 F.2d 468 (CA8 1973); State v. McDougal, 68 Wis. 2d 399, 228 N. W. 2d 671 (1975); Mozzetti v. Superior Court, supra. But this limitation does not remedy the Fourth Amendment intrusion when the simple inventorying of closed areas discloses tokens, literature, medicines, or other things which on their face may "reveal much about a person's activities, associations, and beliefs," [428 U.S. 364, 389] California Bankers Assn. v. Shultz, 416 U.S. 21, 78 -79 (1974) (POWELL, J., concurring). </s> [Footnote 7 The Court also observes that "[i]n addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned." Ante, at 369. The Court places no reliance on this concern in this case, however, nor could it. There is no suggestion that the police suspected that respondent's car was stolen, or that their search was directed at, or stopped with, a determination of the car's ownership. Indeed, although the police readily identified the car as respondent's, Record 98-99, the record does not show that they ever sought to contact him. </s> [Footnote 8 The very premise of the State's chief argument, that the cars must be searched in order to protect valuables because no guard is posted around the vehicles, itself belies the argument that they must be searched at the city lot in order to protect the police there. These circumstances alone suffice to distinguish the dicta from Cooper v. California, 386 U.S., at 61 -62, recited by the Court, ante, at 373. </s> The Court suggests a further "crucial" justification for the search in this case: "protection of the public from vandals who might find a firearm, Cady v. Dombrowski, [413 U.S. 433 (1973)], or as here, contraband drugs" (emphasis added). Ante, at 376 n. 10. This rationale, too, is absolutely without support in this record. There is simply no indication the police were looking for dangerous items. Indeed, even though the police found shotgun shells in the interior of the car, they never opened the trunk to determine whether it might contain a shotgun. Cf. Cady, supra. Aside from this, the suggestion is simply untenable as a matter of law. If this asserted rationale justifies search of all impounded automobiles, it must logically also justify the search of all automobiles, whether impounded or not, located in a similar area, for the argument is not based upon the custodial role of the police. See also Cooper v. California, supra, at 61, quoted in n. 5, supra. But this Court has never permitted the search of any car or home on the mere undifferentiated assumption that it might be vandalized and the vandals might find dangerous weapons or substances. Certainly Cady v. Dombrowski, permitting a limited search of a wrecked automobile where, inter alia, the police had a reasonable belief that the car contained a specific firearm, 413 U.S., at 448 , does not so hold. </s> [Footnote 9 Even were the State to impose a higher standard of custodial responsibility upon the police, however, it is equally clear that such a requirement must be read in light of the Fourth Amendment's pre-eminence to require protective measures other than interior examination of closed areas. </s> [Footnote 10 Indeed, if such claims can be deterred at all, they might more effectively be deterred by sealing the doors and trunk of the car so that an unbroken seal would certify that the car had not been opened during custody. See Cabbler v. Superintendent, 374 F. Supp. 690, 700 (ED Va. 1974), rev'd, 528 F.2d 1142 (CA4 1975), cert. pending, No. 75-1463. </s> [Footnote 11 I do not believe, however, that the Court is entitled to make this assumption, there being no such indication in the record. Cf. Cady v. Dombrowski, supra, at 447. </s> [Footnote 12 The Court makes clear, ante, at 375, that the police may not proceed to search an impounded car if the owner is able to make other arrangements for the safekeeping of his belongings. Additionally, while the Court does not require consent before a search, it does not hold that the police may proceed with such a search in the face of the owner's denial of permission. In my view, if the owner of the vehicle is in police custody or otherwise in communication with the police, his consent to the inventory is prerequisite to an inventory search. See Cabbler v. Superintendent, supra, at 700; cf. State v. McDougal, 68 Wis. 2d, at 413, 228 N. W. 2d, at 678; Mozzetti v. Superior Court, 4 Cal. 3d, at 708, 484 P.2d, at 89. </s> [Footnote 13 In so requiring, the Court appears to recognize that a search of some, but not all, cars which there is no specific cause to believe contain valuables would itself belie any asserted property-securing purpose. </s> The Court makes much of the fact that the search here was a routine procedure, and attempts to analogize Cady v. Dombrowski. But it is quite clear that the routine in Cady was only to search where there was a reasonable belief that the car contained a dangerous weapon, 413 U.S., at 443 ; see Dombrowski v. Cady, 319 F. Supp. 530, 532 (ED Wis. 1970), not, as here, to search every car in custody without particular cause. </s> [Footnote 14 Even if it may be true that many persons would ordinarily consent to a protective inventory of their car upon its impoundment, this fact is not dispositive since even a majority lacks authority to consent to the search of all cars in order to assure the search of theirs. Cf. United States v. Matlock, 415 U.S. 164, 171 (1974); Stoner v. California, 376 U.S. 483 (1964). </s> [Footnote 15 I need not consider here whether a warrant would be required in such a case. </s> [Footnote 16 Additionally, although not relevant on this record, since the inventory procedure is premised upon benefit to the owner, it cannot be executed in any case in which there is reason to believe the owner would prefer to forgo it. This principle, which is fully consistent with the Court's result today, requires, for example, that when the police harbor suspicions (amounting to less than probable cause) that evidence or contraband may be found inside the automobile, they may not inventory it, for they must presume that the owner would refuse to permit the search. </s> [Footnote 17 While evidence at the suppression hearing suggested that the inventory procedures were prompted by past thefts at the impound lot, the testimony refers to only two such thefts, see ante, at 366 n. 1, over an undisclosed period of time. There is no reason on this record to believe that the likelihood of pilferage at the lot was higher or lower than that on the street where respondent left his car with valuables in plain view inside. Moreover, the failure of the police to secure such frequently stolen items as the car's battery, suggests that the risk of loss from the impoundment was not in fact thought severe. </s> [Footnote 18 In fact respondent claimed his possessions about five hours after his car was removed from the street. Record 39, 93. </s> Statement of MR. JUSTICE WHITE. </s> Although I do not subscribe to all of my Brother MARSHALL'S dissenting opinion, particularly some aspects of his discussion concerning the necessity for obtaining the consent of the car owner, I agree with most of his analysis and conclusions and consequently dissent from the judgment of the Court. </s> [428 U.S. 364, 397]

United States Supreme Court HOOVER EXPRESS CO. v. UNITED STATES(1958) No. 95 Argued: Decided: March 17, 1958 </s> Fines paid by a truck owner for inadvertent violations of state maximum weight laws are not deductible as "ordinary and necessary" business expenses under 23 (a) (1) (A) of the Internal Revenue Code of 1939. Pp. 38-40. </s> (a) In this case, it does not appear that the truck owner took all reasonable precautions to avoid the fines. Pp. 39-40. </s> (b) Even assuming all due care and no willful intent, allowance of the deduction would severely and directly frustrate state policy. P. 40. </s> 241 F.2d 459, affirmed. </s> Judson Harwood argued the cause and filed a brief for petitioner. </s> Solicitor General Rankin argued the cause for the United States. With him on the brief were Assistant Attorney General Rice, Joseph F. Goetten and Meyer Rothwacks. </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> The sole issue here - the deductibility for tax purposes 1 of fines paid by a trucker for inadvertent violations of state maximum weight laws - is identical to one of the [356 U.S. 38, 39] issues decided today in No. 109, Tank Truck Rentals, Inc., v. Commissioner, ante, p. 30. </s> Most of the overweight fines paid by petitioner during 1951-1953 inclusive, the tax years in question, were incurred in Tennessee and Kentucky, two of the nine States in which petitioner operated. During the relevant period, both Tennessee and Kentucky imposed maximum weight limitations of 42,000 pounds over-all and 18,000 pounds per axle, 2 considerably less than those in the other seven States. Petitioner's fines resulted largely from violations of the axle-weight limits rather than violations of the over-all truck weight limits. The District Court found that such violations usually occurred because of a shifting of the freight load during transit. </s> After paying the taxes imposed, petitioner sued in the District Court for a refund, claiming that no frustration of state policy would result from allowance of the deductions because (1) the violations had not been willful, and (2) all reasonable precautions had been taken to avoid the violations. The District Court held that even if petitioner had acted innocently and had taken all reasonable precautions, allowance of the deductions would frustrate clearly defined state policy. Judgment was entered for the Commissioner, 135 F. Supp. 818, and the Court of Appeals affirmed on the same reasoning. 241 F.2d 459. We granted certiorari, 354 U.S. 920 (1957), in conjunction with the grant in Tank Truck Rentals, Inc., v. Commissioner, supra, and Commissioner v. Sullivan, ante, p. 27, both decided today. </s> Wholly apart from possible frustration of state policy, it does not appear that payment of the fines in question was "necessary" to the operation of petitioner's business. This, of course, prevents any deduction. Deputy v. [356 U.S. 38, 40] du Pont, 308 U.S. 488 (1940). The violations usually resulted from a shifting of the load during transit, but there is nothing in the record to indicate that the shifting could not have been controlled merely by tying down the load or compartmentalizing the trucks. Other violations occurred because petitioner relied on the weight stated in the bill of lading when picking up goods in small communities having no weighing facilities. It would seem that this situation could have been alleviated by carrying a scale in the truck. </s> Even assuming that petitioner acted with all due care and without willful intent, it is clear that allowance of the deduction sought by petitioner would severely and directly frustrate state policy. Tank Truck Rentals, Inc., v. Commissioner, supra. As in Tank Truck, the statutes involved here do not differentiate between innocent and willful violators. </s> Affirmed. </s> Footnotes [Footnote 1 "SEC. 23. DEDUCTIONS FROM GROSS INCOME. "In computing net income there shall be allowed as deductions: "(a) EXPENSES. - "(1) TRADE OR BUSINESS EXPENSES. - "(A) In General. - All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . ." 53 Stat. 12, as amended, 56 Stat. 819. </s> [Footnote 2 Ky. Rev. Stat., 1953, 189.222; Williams' Tenn. Code, 1934 (1952 Cum. Supp. to 1943 Repl. Vol.), 1166.33. </s> [356 U.S. 38, 41]

United States Supreme Court SHIPMAN v. DUPRE(1950) No. 689 Argued: Decided: April 24, 1950 </s> In this case, a three-judge federal district court erred in ruling on the merits of a suit to restrain enforcement of a state statute on the ground of its invalidity under the Federal Constitution when it did not appear that the statute had been construed by the state courts; but the federal court should retain jurisdiction pending a reasonable time to afford an opportunity for complainants to obtain such a construction. Pp. 321-322. </s> 88 F. Supp. 482, judgment vacated. </s> Appellants' application for a declaratory judgment and injunction, on the ground of the alleged invalidity under the Federal Constitution of certain sections of South Carolina statutes regulating the fisheries and shrimping industry, was dismissed on the merits by a three-judge federal district court. 88 F. Supp. 482. On appeal to this Court, the judgment is vacated and the cause is remanded, p. 322. </s> Aaron Kravitch, Phyllis Kravitch and Joseph Fromberg for appellants. </s> John M. Daniel, Attorney General of South Carolina, T. C. Callison and R. Hoke Robinson, Assistant Attorneys General, for appellees. </s> PER CURIAM. </s> Appellants sought a declaratory judgment that certain sections of the South Carolina statute regulating the fisheries and shrimping industry were unconstitutional, and interlocutory and permanent injunctions restraining the state officials from carrying out those provisions. The [339 U.S. 321, 322] statutory three-judge District Court assumed jurisdiction, decided the issues on the merits, and dismissed the complaint. 88 F. Supp. 482. From the papers submitted on appeal, it does not appear that the statutory sections in question have as yet been construed by the state courts. We are therefore of opinion that the District Court erred in disposing of the complaint on the merits. See American Federation of Labor v. Watson, 327 U.S. 582, 595 -599. </s> The judgment of the District Court is vacated and the cause is remanded to that court with directions to retain jurisdiction of the complaint for a reasonable time, to afford appellants an opportunity to obtain, by appropriate proceedings, a construction by the state court of the statutory provisions involved. </s> MR. JUSTICE DOUGLAS dissents. </s> [339 U.S. 321, 323]

United States Supreme Court NORTHWESTERN CEMENT CO. v. MINN.(1959) No. 12 Argued: October 14, 1958Decided: February 24, 1959 </s> [Footnote * Together with No. 33, Williams, State Revenue Commissioner, v. Stockham Valves & Fittings, Inc., on certiorari to the Supreme Court of Georgia, argued October 14-15, 1958. </s> 1. Net income from the exclusively interstate operations of a foreign corporation may be subjected to state taxation, provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same. Pp. 452-465. </s> 2. In each of these two cases a State imposed on a foreign corporation an income tax computed at a non-discriminatory rate on that portion of the net income from the corporation's interstate business which was reasonably attributable to its business activities within the State. In each case the corporation had within the taxing State an office and one or more salesmen who actively solicited within the State orders for the purchase of the corporation's products, which orders were accepted at, and filled from, the corporation's head office in another State. In neither case was any question raised as to the reasonableness of the apportionment of net income nor as to the amount of the final assessment made. Held: These taxes did not violate either the Commerce Clause or the Due Process Clause of the Federal Constitution. Pp. 452-465. </s> (a) The entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of interstate affairs. Pp. 459-461. </s> (b) The state taxes here involved are not regulations of interstate commerce in any sense of that term; they do not discriminate against or subject interstate commerce to an undue burden; and they are not levied on the privilege of engaging in interstate commerce. Pp. 461-462. </s> (c) There is no showing here that the formula applied by the State in determining the portion of the taxpayer's total income attributable to activities within the State will subject interstate [358 U.S. 450, 451] commerce to multiple taxation or require it to bear more than its fair share of the tax burden. Pp. 462-463. </s> (d) Since each of the taxes here involved is based only upon the net profits earned within the taxing State, the State has utilized a valid "constitutional channel" to "make interstate commerce pay its way." Spector Motor Service v. O'Connor, 340 U.S. 602 , distinguished. Pp. 463-464. </s> (e) The taxes here involved do not violate the Due Process Clause, since they are levied only on that portion of the taxpayer's net income which arises from its activities within the taxing State and those activities form a sufficient "nexus" to satisfy due process requirements. Pp. 464-465. </s> 250 Minn. 32, 84 N. W. 2d 373, affirmed. </s> 213 Ga. 713, 101 S. E. 2d 197, reversed. </s> Joseph A. Maun argued the cause for appellant in No. 12. With him on the brief was Earl Smith. </s> Ben F. Johnson, Deputy Assistant Attorney General of Georgia, argued the cause for petitioner in No. 33. With him on the brief were Eugene Cook, Attorney General. Broadus B. Zellars, Hugh Gibert and Robert H. Walling, Deputy Assistant Attorneys General. </s> Perry Voldness, Assistant Attorney General of Minnesota, argued the cause for appellee in No. 12. With him on the brief were Miles Lord, Attorney General, and Arthur C. Roemer, Special Assistant Attorney General. </s> John Izard, Jr. argued the cause for respondent in No. 33. With him on the brief were William K. Meadow and Joseph H. Johnson, Jr. </s> Edmund G. Brown, Attorney General, and James E. Sabine, Assistant Attorney General, filed a brief for the State of California, as amicus curiae, in support of appellee in No. 12. Thomas D. McBride, Attorney General, and Edward Friedman, Deputy Attorney General, filed a brief for the State of Pennsylvania, as amicus curiae, in No. 12. [358 U.S. 450, 452] </s> Lambert H. Miller and Alan M. Nedry filed a brief for the National Association of Manufacturers of the United States of America, as amicus curiae, in support of respondent in No. 33. </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> These cases concern the constitutionality of state net income tax laws levying taxes on that portion of a foreign corporation's net income earned from and fairly apportioned to business activities within the taxing State when those activities are exclusively in furtherance of interstate commerce. No question is raised in either case as to the reasonableness of the apportionment of net income under the State's formulas nor to the amount of the final assessment made. The Minnesota tax was upheld by its Supreme Court, 250 Minn. 32, 84 N. W. 2d 373, while the Supreme Court of Georgia invalidated its statute as being violative of "both the commerce and due-process clauses of the Federal Constitution . . . ." 213 Ga. 713, 721, 101 S. E. 2d 197, 202. The importance of the question in the field of state taxation is indicated by the fact that thirty-five States impose direct net income taxes on corporations. Therefore, we noted jurisdiction of the appeal in the Minnesota case, 355 U.S. 911 (1958), and granted certiorari in the other, 356 U.S. 911 (1958). Although the cases were separately briefed, argued, and submitted, we have, because of the similarity of the tax in each case, consolidated them for the purposes of decision. It is contended that each of the state statutes, as applied, violates both the Due Process and the Commerce Clauses of the United States Constitution. We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same. [358 U.S. 450, 453] </s> No. 12. - Northwestern States Portland Cement Co. v. State of Minnesota. </s> This is an appeal from judgments of Minnesota's courts upholding the assessment by the State of income taxes for the years 1933 through 1948 against appellant, an Iowa corporation engaged in the manufacture and sale of cement at its plant in Mason City, Iowa, some forty miles from the Minnesota border. The tax was levied under 290.03 1 of the Minnesota Statutes which imposes an annual tax upon the taxable net income of residents and nonresidents alike. One of four classes taxed by the statute is that of "domestic and foreign corporations . . . whose business within this state during the taxable year consists exclusively of foreign commerce, interstate commerce, or both." Minnesota has utilized three ratios in determining the portion of net income taxable under its law. 2 The first is that of the taxpayer's sales assignable to Minnesota during the year to its total sales during that period made everywhere; the second, that of the taxpayer's total tangible property in Minnesota for the year to its total tangible property used in the business that year wherever situated. The third is the taxpayer's [358 U.S. 450, 454] total payroll in Minnesota for the year to its total payroll for its entire business in the like period. As we have noted, appellant takes no issue with the fairness of this formula nor of the accuracy of its application here. </s> Appellant's activities in Minnesota consisted of a regular and systematic course of solicitation of orders for the sale of its products, each order being subject to acceptance, filling and delivery by it from its plant at Mason City. It sold only to eligible dealers, who were lumber and building material supply houses, contractors and ready-mix companies. A list of these eligible dealers was maintained and sales would not be made to those not included thereon. Forty-eight percent of appellant's entire sales were made in this manner to such dealers in Minnesota. For efficient handling of its activity in that State, appellant maintained in Minneapolis a leased sales office equipped with its own furniture and fixtures and under the supervision of an employee-salesman known as "district manager." Two salesmen, including this district manager, and a secretary occupied this three-room office. Two additional salesmen used it as a clearing house. Each employee was paid a straight salary by the appellant direct from Mason City and two cars were furnished by it for the salesmen. Appellant maintained no bank account in Minnesota, owned no real estate there, and warehoused no merchandise in the State. All sales were made on a delivered price basis fixed by the appellant in Mason City and no "pick ups" were permitted at its plant there. The salesmen, however, were authorized to quote Minnesota customers a delivered price. Orders received by the salesmen or at the Minneapolis office were transmitted daily to appellant in Mason City, were approved there, and acknowledged directly to the purchaser with copies to the salesman. </s> In addition to the solicitation of approved dealers, appellant's salesmen also contacted potential customers [358 U.S. 450, 455] and users of cement products, such as builders, contractors, architects, and state, as well as local government purchasing agents. Orders were solicited and received from them, on special forms furnished by appellant, directed to an approved local dealer who in turn would fill them by placing a like order with appellant. Through this system appellant's salesmen would in effect secure orders for local dealers which in turn were filled by appellant in the usual manner. Salesmen would also receive and transmit claims against appellant for loss or damage in any shipments made by it, informing the company of the nature thereof and requesting instructions concerning the same. </s> No income tax returns were filed with the State by the appellant. The assessments sued upon, aggregating some $102,000, with penalties and interest, were made by the Commissioner of Taxation on the basis of information available to him. </s> No. 33. - T. V. Williams, Commissioner, v. Stockham Valves & Fittings, Inc. </s> The respondent here is a Delaware Corporation with its principal office and plant in Birmingham, Alabama. It manufactures and sells valves and pipe fittings through established local wholesalers and jobbers who handle products other than respondent's. These dealers were encouraged by respondent to carry a local inventory of its products by granting to those who did so a special price concession. However, the corporation maintained no warehouse or storage facilities in Georgia. It did maintain a sales-service office in Atlanta, which served five States. This office was headquarters for one salesman who devoted about one-third of his time to solicitation of orders in Georgia. He was paid on a salary-plus-commission basis while a full-time woman secretary employed there received a regular salary only. She was "a source of [358 U.S. 450, 456] information" for respondent's products, performed stenographic and clerical services and "facilitated communications between the . . . home office in Birmingham, . . . [the] sales representative . . . and customers, prospective customers, contractors and users of [its] products." Respondent's salesman carried on the usual sales activities, including regular solicitation, receipt and forwarding of orders to the Birmingham office and the promotion of business and good will for respondent. Orders were taken by him, as well as the sales-service office, subject to approval of the home office and were shipped from Birmingham direct to the customer on an "f. o. b. warehouse" basis. Other than office equipment, supplies, advertising literature and the like, respondent had no property in Georgia, deposited no funds there and stored no merchandise in the State. </s> Georgia levies a tax 3 on net incomes "received by every corporation, foreign or domestic, owning property or doing [358 U.S. 450, 457] business in this State." 4 The Act defines the latter as including "any activities or transactions" carried on within the State "for the purpose of financial profit or gain" regardless of its connection with interstate commerce. To apportion net income, the Act applies a three-factor ratio based on inventory, wages and gross receipts. Under the Act the State Revenue Commissioner assessed and collected a total of $1,478.31 from respondent for the taxable years 1952, 1954 and 1955, and after claims for refund were denied the respondent filed this suit to recover such payments. It bases its right to recover squarely upon the constitutionality of Georgia's Act under the Commerce and the Due Process Clauses of the Constitution of the United States. </s> That there is a "need for clearing up the tangled underbrush of past cases" with reference to the taxing power of the States is a concomitant to the negative approach resulting from a case-by-case resolution of "the extremely limited restrictions that the Constitution places upon the states. . . ." Wisconsin v. J. C. Penney Co., 311 U.S. 435, 445 (1940). Commerce between the States having grown up like Topsy, the Congress meanwhile not having undertaken to regulate taxation of it, and the States having understandably persisted in their efforts to get some return for the substantial benefits they have afforded it, there is little wonder that there has been no end of cases testing out state tax levies. The resulting judicial application of constitutional principles to specific state statutes leaves much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation. This Court alone has handed down some three hundred full-dress [358 U.S. 450, 458] opinions spread through slightly more than that number of our reports. As was said in Miller Bros. Co. v. Maryland, 347 U.S. 340, 344 (1954), the decisions have been "not always clear . . . consistent or reconcilable. A few have been specifically overruled, while others no longer fully represent the present state of the law." From the quagmire there emerge, however, some firm peaks of decision which remain unquestioned. </s> It has long been established doctrine that the Commerce Clause gives exclusive power to the Congress to regulate interstate commerce, and its failure to act on the subject in the area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the States. Gibbons v. Ogden, 9 Wheat. 1 (1824). In keeping therewith a State "cannot impose taxes upon persons passing through the state, or coming into it merely for a temporary purpose" such as itinerant drummers. Robbins v. Taxing District, 120 U.S. 489, 493 -494 (1887). Moreover, it is beyond dispute that a State may not lay a tax on the "privilege" of engaging in interstate commerce, Spector Motor Service v. O'Connor, 340 U.S. 602 (1951). Nor may a State impose a tax which discriminates against interstate commerce either by providing a direct commercial advantage to local business, Memphis Steam Laundry v. Stone, 342 U.S. 389 (1952); Nippert v. Richmond, 327 U.S. 416 (1946), or by subjecting interstate commerce to the burden of "multiple taxation," Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157 (1954); Adams Mfg. Co. v. Storen, 304 U.S. 307 (1938). Such impositions have been stricken because the States, under the Commerce Clause, are not allowed "one single-tax-worth of direct interference with the free flow of commerce." Freeman v. Hewit, 329 U.S. 249, 256 (1946). </s> On the other hand, it has been established since 1918 that a net income tax on revenues derived from interstate [358 U.S. 450, 459] commerce does not offend constitutional limitations upon state interference with such commerce. The decision of Peck & Co. v. Lowe, 247 U.S. 165 , pointed the way. There the Court held that though true it was that the Constitution provided "No Tax or Duty shall be laid on Articles exported from any State," Art. I, 9, still a net income tax on the profits derived from such commerce was not "laid on articles in course of exportation or on anything which inherently or by the usages of commerce is embraced in exportation or any of its processes. . . . At most, exportation is affected only indirectly and remotely." Id., at 174-175. The first case in this Court applying the doctrine to interstate commerce was that of U.S. Glue Co. v. Town of Oak Creek, 247 U.S. 321 (1918). There the Court distinguished between an invalid direct levy which placed a burden on interstate commerce and a charge by way of net income derived from profits from interstate commerce. This landmark case and those usually cited as upholding the doctrine there announced, i. e., Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113 (1920), and Memphis Gas Co. v. Beeler, 315 U.S. 649 (1942), dealt with corporations which were domestic to the taxing State (U.S. Glue Co. v. Town of Oak Creek, supra), or which had "established a commercial domicile" there, Underwood Typewriter Co. v. Chamberlain, supra; Memphis Gas Co. v. Beeler, supra. </s> But that the presence of such a circumstance is not controlling is shown by the cases of Bass, Ratcliff & Gretton, Ltd., v. State Tax Commission, 266 U.S. 271 (1924), and Norfolk & W. R. Co. v. North Carolina, 297 U.S. 682 (1936). In neither of these cases was the taxpayer a domiciliary of the taxing State, incorporated or with its principal place of business there, though each carried on substantial local activities. Permitting the assessment of New York's franchise tax measured on a proportional formula against a British corporation selling ale in New [358 U.S. 450, 460] York State, the Court held in Bass, Ratcliff & Gretton, Ltd., supra, that "the Company carried on the unitary business of manufacturing and selling ale, in which its profits were earned by a series of transactions beginning with the manufacture in England and ending in sales in New York and other places - the process of manufacturing resulting in no profits until it ends in sales - the State was justified in attributing to New York a just proportion of the profits earned by the Company from such unitary business." Id., at 282. Likewise in Norfolk & W. R. Co., supra, North Carolina was permitted to tax a Virginia corporation on net income apportioned to North Carolina on the basis of mileage within the State. These cases stand for the doctrine that the entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of interstate affairs. In fact, in Bass, Ratcliff & Gretton the operations in the taxing State were conducted at a loss, and still the Court allowed part of the over-all net profit of the corporation to be attributed to the State. A reading of the statute in Norfolk & W. R. Co. reveals further that one facet of the apportionment formula was specifically designed to attribute a portion of the interstate hauls to the taxing State. </s> Any doubt as to the validity of our position here was entirely dispelled four years after Beeler, in a unanimous per curiam in West Publishing Co. v. McColgan, 328 U.S. 823 , citing the four cases of Beeler, U.S. Glue Co., both supra, Interstate Busses Corp. v. Blodgett, 276 U.S. 245 (1928), and International Shoe Co. v. Washington, 326 U.S. 310 (1945). The case involved the validity of California's tax on the apportioned net income of West Publishing Company, whose business was exclusively interstate. See 27 Cal. 2d 705, 166 P.2d 861. While the statement of the facts in that opinion recites that "The [358 U.S. 450, 461] employees were given space in the offices of attorneys in return for the use of plaintiff's books stored in such offices," it is significant to note that West had not qualified to do business in California and the State's statute itself declared that the tax was levied on income derived from interstate commerce within the State, as well as any arising intrastate. The opinion was not grounded on the triviality that office space was given West's soliciters by attorneys in exchange for the chanceful use of what books they may have had on hand for their sales activities. Rather, it recognized that the income taxed arose from a purely interstate operation. </s> "In relying on the foregoing cases for the proposition that a foreign corporation engaged within a state solely in interstate commerce is immune from net income taxation by that state, plaintiff [West Publishing Co.] overlooks the distinction made by the United States Supreme Court between a tax whose subject is the privilege of engaging in interstate commerce and a tax whose subject is the net income from such commerce. It is settled by decisions of the United States Supreme Court that a tax on net income from interstate commerce, as distinguished from a tax on the privilege of engaging in interstate commerce, does not conflict with the commerce clause." 27 Cal. 2d 705, 708-709, 166 P.2d 861, 863. (Citations omitted.) </s> We believe that the rationale of these cases, involving income levies by States, controls the issues here. The taxes are not regulations in any sense of that term. Admittedly they do not discriminate against nor subject either corporation to an undue burden. While it is true that a State may not erect a wall around its borders preventing commerce an entry, it is axiomatic that the founders did not intend to immunize such commerce from [358 U.S. 450, 462] carrying its fair share of the costs of the state government in return for the benefits it derives from within the State. The levies are not privilege taxes based on the right to carry on business in the taxing State. The States are left to collect only through ordinary means. The tax, therefore, is "not open to the objection that it compels the company to pay for the privilege of engaging in interstate commerce." Underwood Typewriter Co. v. Chamberlain, supra, at 119. As was said in Wisconsin v. Minnesota Mining & Mfg. Co., 311 U.S. 452, 453 (1940), "it is too late in the day to find offense to that [commerce] Clause because a state tax is imposed on corporate net income of an interstate enterprise which is attributable to earnings within the taxing state . . . ." </s> While the economic wisdom of state net income taxes is one of state policy not for our decision, one of the "realities" raised by the parties is the possibility of a multiple burden resulting from the exactions in question. The answer is that none is shown to exist here. This is not an unapportioned tax which by its very nature makes interstate commerce bear more than its fair share. As was said in Central Greyhound Lines v. Mealey, 334 U.S. 653, 661 (1948), "it is interstate commerce which the State is seeking to reach and . . . the real question [is] whether what the State is exacting is a constitutionally fair demand by the State for that aspect of the interstate commerce to which the State bears a special relation." The apportioned tax is designed to meet this very requirement and "to prevent the levying of such taxes as will discriminate against or prohibit the interstate activities or will place the interstate commerce at a disadvantage relative to local commerce." Id., at 670. Logically it is impossible, when the tax is fairly apportioned, to have the same income taxed twice. In practical operation, however, apportionment formulas being what they are, the possibility of the contrary is not foreclosed, especially [358 U.S. 450, 463] by levies in domiciliary States. 5 But that question is not before us. It was argued in Northwest Airlines v. Minnesota, 322 U.S. 292 (1944), that the taxation of the entire fleet of its airplanes in that State would result in multiple taxation since other State levied taxes on some proportion of the full value thereof. The Court rejected this contention as being "not now before us" even though other States actually collected property taxes for the same year from Northwest upon "some proportion" of the full value of its fleet. 6 Here the records are all to the contrary. There is nothing to show that multiple taxation is present. We cannot deal in abstractions. In this type of case the taxpayers must show that the formula places a burden upon interstate commerce in a constitutional sense. This they have failed to do. </s> It is also contended that Spector Motor Service v. O'Connor, 340 U.S. 602 (1951), requires a contrary result. But there it was repeatedly emphasized that the tax was "imposed upon the franchise of a foreign corporation for the privilege of doing business within the State . . . ." Thus, it was invalid under a long line of precedents, some of which we have mentioned. 7 It was not a levy on net [358 U.S. 450, 464] income but an excise or tax placed on the franchise of a foreign corporation engaged "exclusively" in interstate operations. Therefore, with the exception of Beeler, heretofore mentioned, the Court made no reference to the net-income-tax cases which control here. We do not construe that reference as intended to impair the validity of the Beeler opinion. Nor does it reach our problem. The taxes here, like that in West Publishing Co. v. McColgan, supra, are based only upon the net profits earned in the taxing State. That incidence of the tax affords a valid "constitutional channel" which the States have utilized to "make interstate commerce pay its way." In Spector the incidence was the privilege of doing business, and that avenue of approach had long been declared unavailable under the Commerce Clause. As was said in Spector, "taxes may be imposed although their payment may come out of the funds derived from petitioner's interstate business, provided the taxes are so imposed that their burden will be reasonably related to the powers of the State and [are] non-discriminatory." 340 U.S., at 609 . We find that the statutes here meet these tests. </s> Nor will the argument that the exactions contravene the Due Process Clause bear scrutiny. The taxes imposed are levied only on that portion of the taxpayer's net income which arises from its activities within the taxing State. These activities form a sufficient "nexus between such a tax and transactions within a state for which the tax is an exaction." Wisconsin v. J. C. Penney Co., supra, at 445. It strains reality to say, in terms of our [358 U.S. 450, 465] decisions, that each of the corporations here was not sufficiently involved in local events to forge "some definite link, some minimum connection" sufficient to satisfy due process requirements. Miller Bros. v. Maryland, 347 U.S. 340, 344 -345 (1954). See also Ott v. Miss. Valley Barge Line, 336 U.S. 169 (1949); International Shoe Co. v. Washington, 326 U.S. 310 (1945); and West Publishing Co. v. McColgan, supra. The record is without conflict that both corporations engage in substantial income-producing activity in the taxing States. In fact in No. 12 almost half of the corporation's income is derived from the taxing State's sales which are shown to be promoted by vigorous and continuous sales campaigns run through a central office located in the State. While in No. 33 the percent of sales is not available, the course of conduct was largely identical. As was said in Wisconsin v. J. C. Penney Co., supra, the "controlling question is whether the state has given anything for which it can ask return." Since by "the practical operation of [the] tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred . . ." it "is free to pursue its own fiscal policies, unembarrassed by the Constitution . . . ." Id., at 444. </s> No. 12 - Affirmed. </s> No. 33 - Reversed. </s> Footnotes [Footnote 1 290.03: </s> "Classes of taxpayers. An annual tax for each taxable year, computed in the manner and at the rates hereinafter provided, is hereby imposed upon the taxable net income for such year of the following classes of taxpayers: </s> "(1) Domestic and foreign corporations not taxable under section 290.02 which own property within this state or whose business within this state during the taxable year consists exclusively of foreign commerce, interstate commerce, or both; </s> "Business within the state shall not be deemed to include transportation in interstate or foreign commerce, or both, by means of ships navigating within or through waters which are made international for navigation purposes by any treaty or agreement to which the United States is a party; . . . ." Minn. Stat., 1945, 290.03. </s> [Footnote 2 Minn. Stat. (1945), 290.19. </s> [Footnote 3 Ga. Code Ann. (1937), 92-3102. </s> "Rate of taxation of corporations. - Every domestic corporation and every foreign corporation shall pay annually an income tax equivalent to five and one-half per cent. of the net income from property owned or from business done in Georgia, as is defined in section 92-3113: . . ." </s> Ga. Code Ann. (1937), 92-3113. </s> "Corporations, allocation and apportionment of income. - The tax imposed by this law shall apply to the entire net income, as herein defined, received by every corporation, foreign or domestic, owning property or doing business in this State. Every such corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, whether or not such corporation qualifies to do business in this State, and whether or not it maintains an office or place of doing business within this State, and whether or not any such activity or transaction is connected with interstate or foreign commerce. . . ." </s> [Footnote 4 The tax on corporations is part of a general scheme of income taxation which Georgia imposes on individuals ( 92-3101), corporations ( 92-3102), and fiduciaries ( 92-3103). </s> [Footnote 5 In Standard Oil Co. v. Peck, 342 U.S. 382 (1952), we struck down Ohio's ad valorem property tax on vessels domiciled there but plying in interstate trade because it was not apportioned. </s> [Footnote 6 The Court nevertheless pointed out that such payments did "not abridge the power of taxation of . . . the home State." 322 U.S., at 295 . </s> [Footnote 7 See also Alpha Portland Cement Co. v. Massachusetts. 268 U.S. 203, 216 (1925), where this Court, striking down a Massachusetts excise tax on a foreign corporation engaged exclusively in interstate commerce, noted that "[t]he right to lay taxes on tangible property or on income is not involved; . . ." </s> Furthermore, none of the cases which the dissent relies on for the proposition that "[N]o State has the right to lay a tax on interstate commerce in any form . . .," was a net income tax case. In fact, all involved taxes levied upon corporations for the privilege of engaging [358 U.S. 450, 464] in interstate commerce. This Court has consistently held that the "privilege" of engaging in interstate commerce cannot be granted or withheld by a State, and that the assertion of state power to tax the "privilege" is, therefore, a forbidden attempt to "regulate" interstate commerce. Cf. Murdock v. Pennsylvania, 319 U.S. 105, 112 -113 (1943). </s> MR. JUSTICE HARLAN, concurring. </s> In joining the opinion of the Court, I deem it appropriate to make some further comments as to the issues in these cases because of the strongly held contrary views manifested in the dissenting opinions of MR. JUSTICE FRANKFURTER and MR. JUSTICE WHITTAKER. I preface what follows by saying that in my view the past decisions of this Court clearly point to, if indeed they do not compel, the sustaining of these two state taxing measures. [358 U.S. 450, 466] </s> Since U.S. Glue Co. v. Town of Oak Creek, 247 U.S. 321 , decided in 1918, this Court has uniformly held that a State, in applying a net income tax of general impact to a corporation doing business within its borders, may reach income derived from interstate commerce to the extent that such income is fairly related to corporate activities within the State. See, e. g., Shaffer v. Carter, 252 U.S. 37, 57 ; Atlantic Coast Line R. Co. v. Daughton, 262 U.S. 413, 416 . See also Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 119 -120; Bass, Ratcliff & Gretton, Ltd., v. State Tax Comm'n, 266 U.S. 271 ; Norfolk & W. R. Co. v. North Carolina, 297 U.S. 682 . </s> As I read the cases the existence of some income from intrastate business on the part of the taxed corporation, while sometimes adverted to, has never been considered essential to the valid taxation of such "interstate" income. The cases upholding taxes of this kind cannot, in my opinion, properly be said to rest on the theory that the income earned from the carrying on of interstate commerce was not in fact being taxed, but rather was being utilized simply to measure the income derived from some separate, but unidentified, intrastate commerce, which income was in truth the subject of the tax. That this is so seems to me apparent from U.S. Glue itself. There the Court explicitly recognized that the question before it was whether net income from exclusively interstate commerce could be taxed by a State on an apportioned basis together with other income of a corporation. The careful distinction, drawn more than once in the course of the opinion, between gross receipts from interstate commerce, assumed to be immune from state taxation, and net income therefrom, 247 U.S., at 324 , 326, 327, 328, 329, would be altogether meaningless if the case is to be explained on the basis suggested by my dissenting brethren, for if all that was in fact being taxed was income from intrastate commerce there is no reason why gross receipts [358 U.S. 450, 467] as well as net income could not have been reached by the State. 1 </s> Surely any possible doubt on this score is removed by West Publishing Co. v. McColgan, 328 U.S. 823 , where this Court unanimously affirmed, without oral argument, a decision of the California Supreme Court upholding the validity of a statute taxing "income from any activities carried on in this State, regardless of whether carried on in intrastate, interstate or foreign commerce" as applied to reach a portion of the net income of a Minnesota corporation not qualified to do intrastate business in California and assumed by the California court to be deriving income in California entirely "from activities in furtherance of a purely interstate business . . . ." 27 Cal. 2d 705, 712, 166 P.2d 861, 865. </s> It is suggested that the Court's summary affirmance in the West case went on the ground that the taxpayer there was found by the state court to have been engaged in intrastate commerce in California, and that it was only the income earned from such commerce that had in truth been taxed by the State. In my view, this explanation [358 U.S. 450, 468] of West is unacceptable. Apart from the fact that the California Supreme Court did not proceed on any such basis (see especially the quotation from the state court's opinion set forth at p. 461 of this Court's opinion), the only facts elucidated in support of this view of the West case are that employees of the taxpayer solicited business in California, that they were authorized to receive payments on orders taken by them, to collect delinquent accounts, and to adjust complaints, and that they were given space in California lawyers' offices in return for the use of the taxpayer's books there stored, which locations were also advertised as the taxpayer's local offices. It is said that these are "the usual criteria which this Court has consistently held to constitute the doing of intrastate commerce" and that "California determined and taxed only the amount of that intrastate commerce." With deference, this seems to me to be both novel doctrine and unreal analysis; novel doctrine because this Court has never held that activities of this kind, performed solely in aid of interstate sales, are intrastate commerce; unreal analysis, because it is surely stretching things too far to say that California was seeking to measure and tax office renting and complaint adjusting rather than part of the income from concededly interstate sales transactions. </s> I think that West squarely governs the two cases now before us. 2 </s> [358 U.S. 450, 469] </s> It is said that the taxes presently at issue were "laid on income from [interstate commerce] because of its source." If this were so I should of course vote to strike down their application here as unconstitutionally discriminatory against interstate commerce. But this seems to me plainly not such a case. As the opinion of the Court demonstrates, the Minnesota and Georgia taxes are each part of a general scheme of state income taxation, reaching all individual, corporate, and other net income. The taxing statutes are not sought to be applied to portions of the net income of Northwestern and Stockham because of the source of that income - interstate commerce - but rather despite that source. The thrust of these statutes is not hostile discrimination against interstate commerce, but rather a seeking of some compensation for facilities and benefits afforded by the taxing States to income-producing activities therein, whether those activities be altogether local or in furtherance of interstate commerce. The past decisions of this Court establish that such compensation may be had by the States consistent with the Commerce Clause. </s> I think it no more a "regulation of," "burden on," or "interference with" interstate commerce to permit a State within whose borders a foreign corporation engages solely in activities in aid of that commerce to tax the net income derived therefrom on a properly apportioned basis than to permit the same State to impose a nondiscriminatory net income tax of general application on a corporation engaging in both interstate and intrastate commerce therein and to take into account income from both categories. Cf. Peck & Co. v. Lowe, 247 U.S. 165 . In each case the amount of the tax will increase as the profitability of the interstate business done increases. This Court has [358 U.S. 450, 470] consistently upheld state net income taxes of general application so applied as to reach that portion of the profits of interstate business enterprises fairly allocable to activities within the State's borders. We do no more today. </s> [Footnote 1 As early as 1919 such a discriminating commentator as the late Thomas Reed Powell had this to say, in commenting on the decisions of this Court in Peck & Co. v. Lowe, 247 U.S. 165 , and U.S. Glue Co. v. Town of Oak Creek, supra: "We may take it for granted, then, that the legal character of the recipient and the nature of the business in which the recipient is engaged are immaterial elements in considering the constitutionality of a state-wide, all-inclusive general tax on net income from business done within the state. The recipient may be an individual, a partnership, a domestic or a foreign corporation. The business may be exclusively interstate." Indirect Encroachment on Federal Authority by the Taxing Powers of the States. VII, 32 Harv. L. Rev. 634, 639. That nothing in U.S. Glue turned on the fact that the taxpayer there happened to be a domestic corporation is shown by the line of cases following it where the taxpayers were foreign corporations doing an interstate business. See cases cited, ante, p. 466. </s> [Footnote 2 Apart from the considerations discussed in the text of this opinion, it is noteworthy that the Court in West, in relying on Memphis Natural Gas Co. v. Beeler, 315 U.S. 649 , cited directly to page "656" of the Beeler opinion where it was said: "In any case, even if taxpayer's business were wholly interstate commerce [italics supplied], a nondiscriminatory tax by Tennessee upon the net income of a foreign corporation having a commercial domicile there [citation], or upon net income derived from within the state [citations], is not prohibited by the commerce clause on which the taxpayer alone relies [citing among [358 U.S. 450, 469] other cases U.S. Glue Co. v. Town of Oak Creek, supra]. There is no contention or showing here that the tax assessed is not upon net earnings justly attributable to Tennessee [citations]." </s> MR. JUSTICE FRANKFURTER, dissenting. </s> By way of emphasizing my agreement with my brother WHITTAKER, I add a few observations. </s> The Court sustains the taxing power of the States in these two cases essentially on the basis of precedents. For me, the result of today's decisions is to break new ground. I say this because, among all the hundreds of cases dealing with the power of the States to tax commerce, there is not a single decision adjudicating the precise situation now before us. Concretely, we have never decided that a State may tax a corporation when that tax is on income related to the State by virtue of activities within it when such activities are exclusively part of the process of doing interstate commerce. That is the precise situation which the state courts found here, to wit: </s> "[Northwestern's] activities in this State were an integral part of its interstate activities, and all revenue received by it from customers in Minnesota resulted from its operations in interstate commerce." </s> and, </s> "[W]ithout dispute [Stockham] was engaged exclusively in interstate commerce in so far as its activities in Georgia are concerned." 213 Ga. 713, 719, 101 S. E. 2d 197, 201. </s> It is vital to realize that in no case prior to this decision in which the taxing power of a State has been upheld when applied to corporations engaged in interstate commerce, was there a total absence of activities pursued or [358 U.S. 450, 471] advantages conferred within the State severable from the very process which constitutes interstate commerce. </s> The case that argumentatively comes the closest to the situation now before the Court is West Publishing Co. v. McColgan, 328 U.S. 823 . 1 But in that case too, as the [358 U.S. 450, 472] opinion of the California Supreme Court which we there summarily sustained clearly set forth, 27 Cal. 2d 705, 166 P.2d 861, the West Publishing Company did not merely complete in California the business which began in Minnesota. It employed permanent workers who engaged in business activities localized in California, activities which were apart from and in addition to the purely interstate sale of law books. These activities were more than an essential part of the process of interstate commerce; they were, in legal shorthand, local California activities constituting interstate business. In dealing with those purely local activities the State could properly exert its taxing power in relation to opportunities and advantages which it had given and which it could have withheld by simply not allowing a foreign corporation to do local business, whereas no State may withhold from a foreign corporation within its borders the right to exercise what is part of a process of exclusively interstate commerce. The State gives to a corporation so engaged nothing which it can withhold and therefore nothing for which it can charge a price, whether the price be the cost of a license to do interstate business or a tax on the profits accruing from that business. [358 U.S. 450, 473] </s> I venture to say that every other decision - I say decision, not talk or dicta - on which reliance is placed, presented a situation where conjoined with the interstate commerce was severable local state business on the basis of which the state taxing power became constitutionally operative. The difference between those situations and this, as a matter of economics, involves the distinction between taking into account the total activity of the enterprise as a going business in determining a fairly apportioned tax based on locally derived revenues, and taxing a portion of revenue concededly produced by exclusively interstate commerce. To be sure, such a distinction is a nice one, but the last word on the necessity of nice distinctions in this area was said by Mr. Justice Holmes in Galveston, H. & S. A. R. Co. v. Texas, 210 U.S. 217, 225 : "It being once admitted, as of course it must be, that not every law that affects commerce is a regulation of it in a constitutional sense, nice distinctions are to be expected." </s> Accordingly, today's decision cannot rest on the basis of adjudicated precedents. This does not bar the making of a new precedent. The history of the Commerce Clause is the history of judicial evolution. It is one thing, however, to recognize the taxing power of the States in relation to purely interstate activities and quite another thing to say that that power has already been established by the decisions of this Court. If new ground is to be broken, the ground must be justified and not treated as though it were old ground. </s> I do not think we should take this new step. My objection is the policy that underlies the Commerce Clause, namely, whatever disadvantages may accrue to the separate States from making of the United States a free-trade territory are far outweighed by the advantages not only to the United States as a Nation, but to the component States. I am assuming, of course, that today's decision [358 U.S. 450, 474] will stimulate, if indeed it does not compel, every State of the Union, which has not already done so, to devise a formula of apportionment to tax the income of enterprises carrying on exclusively interstate commerce. As a result, interstate commerce will be burdened not hypothetically but practically, and we have been admonished again and again that taxation is a practical matter. </s> I think that interstate commerce will be not merely argumentatively but actively burdened for two reasons: </s> First. It will not, I believe, be gainsaid that there are thousands of relatively small or moderate size corporations doing exclusively interstate business spread over several States. To subject these corporations to a separate income tax in each of these States means that they will have to keep books, make returns, store records, and engage legal counsel, all to meet the divers and variegated tax laws of forty-nine States, with their different times for filing returns, different tax structures, different modes for determining "net income," and different, often conflicting, formulas of apportionment. This will involve large increases in bookkeeping, accounting, and legal paraphernalia to meet these new demands. The cost of such a far-flung scheme for complying with the taxing requirements of the different States may well exceed the burden of the taxes themselves, especially in the case of small companies doing a small volume of business in several States. 2 </s> Second. The extensive litigation in this Court which has challenged formulas of apportionment in the case of railroads and express companies 3 - challenges addressed [358 U.S. 450, 475] to the natural temptation of the States to absorb more than their fair share of interstate revenue - will be multiplied many times when such formulas are applied to the infinitely larger number of other businesses which are engaged in exclusively interstate commerce. The division in this Court on these railroad apportionment cases is a good index of what might reasonably be expected when cases involving the more numerous non-transportation industries come before the Court. This is not a suggestion that the convenience of the Court should determine our construction of the Commerce Clause, although it is important in balancing the considerations relevant to the Commerce Clause against the claims of state power that this Court should be mindful of the kind of questions it will be called upon to adjudicate and its special competence for adjudicating them. Wholly apart from that, the necessity for litigation based on these elusive and essentially non-legal questions casts a burden on businesses, and consequently on interstate commerce itself, which should not be imposed. </s> These considerations do not at all lead to the conclusion that the vast amount of business carried on throughout all the States as part of what is exclusively interstate commerce should not be made to contribute to the cost of maintaining state governments which, as a practical matter, necessarily contribute to the conduct of that commerce by the mere fact of their existence as governments. The question is not whether a fair share of the profits derived from the carrying on of exclusively interstate commerce should contribute to the cost of the state governments. The question is whether the answer to this problem rests with this Court or with Congress. </s> I am not unmindful of the extent to which federal taxes absorb the taxable resources of the Nation, while at the same time the fiscal demands of the States are on the increase. These conditions present far-reaching problems [358 U.S. 450, 476] of accommodating federal-state fiscal policy. But a determination of who is to get how much out of the common fund can hardly be made wisely and smoothly through the adjudicatory process. In fact, relying on the courts to solve these problems only aggravates the difficulties and retards proper legislative solution. </s> At best, this Court can only act negatively; it can determine whether a specific state tax is imposed in violation of the Commerce Clause. Such decisions must necessarily depend on the application of rough and ready legal concepts. We cannot make a detailed inquiry into the incidence of diverse economic burdens in order to determine the extent to which such burdens conflict with the necessities of national economic life. Neither can we devise appropriate standards for dividing up national revenue on the basis of more or less abstract principles of constitutional law, which cannot be responsive to the subtleties of the interrelated economies of Nation and State. </s> The problem calls for solution by devising a congressional policy. Congress alone can provide for a full and thorough canvassing of the multitudinous and intricate factors which compose the problem of the taxing freedom of the States and the needed limits on such state taxing power. 4 Congressional, committees can make [358 U.S. 450, 477] studies and give the claims of the individual States adequate hearing before the ultimate legislative formulation of policy is made by the representatives of all the States. The solution to these problems ought not to rest on the self-serving determination of the States of what they are entitled to out of the Nation's resources. Congress alone can formulate policies founded upon economic realities, perhaps to be applied to the myriad situation involved by a properly constituted and duly informed administrative agency. </s> [Footnote 1 The West case was a per curiam affirmance without opinion. The Court cited four cases in support: United States Glue Co. v. Town of Oak Creek, 247 U.S. 321 ; Interstate Busses Corp. v. Blodgett, 276 U.S. 245 ; Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 656 ; International Shoe Co. v. Washington, 326 U.S. 310 . Not one of these cases presented the issue now here; in none had the Court to sustain a state net income tax on a business whose revenue derived solely from interstate commerce. </s> In United States Glue Co. v. Town of Oak Creek, supra, this Court upheld an apportioned net income tax levied by the State of Wisconsin on a Wisconsin corporation having its principal office and manufacturing establishment in that State. A substantial part of the corporation's business was intrastate. The only issue before the Court was the power of the State to include interstate income in its apportionment computation. </s> Interstate Busses Corp. v. Blodgett, supra, decided that appellant had not sustained the burden of showing that an excise tax of one cent per mile levied by Connecticut on motor vehicles using its highways in interstate commerce fell with discriminating weight on interstate commerce when the tax was viewed as part of the State's entire taxing scheme. Aside from this issue of discrimination, the case was merely another instance of a State charging for the use of its highways. </s> The Court in Memphis Natural Gas Co. v. Beeler, supra, upheld a net income tax imposed by the State of Tennessee on revenues earned by the Memphis Gas Company from shipping gas into the State and selling it, together with another company, to retail consumers in that State. The decision was explicitly based on a determination that the revenue was, in fact, derived from intrastate rather than interstate commerce. In addition the Memphis Company was licensed to do business in Tennessee, maintained its principal place of business there, and sold much of its gas in that State. It is true that on the page cited in Beeler the opinion indulged in a dictum that net income from interstate commerce was taxable. But this was [358 U.S. 450, 472] an almost by-the-way observation, itself relying on citations which do not support it, by a writer prone to uttering dicta. </s> International Shoe Co. v. Washington, supra, decided that the Due Process Clause of the Fourteenth Amendment did not prohibit the State of Washington from exercising jurisdiction over the International Shoe Co., in the light of the frequency and extent of the company's business contacts within the State. There was no doubt that the unemployment compensation contributions exacted by Washington were entirely consistent with the Commerce Clause, since Congress had explicitly authorized such levies. </s> Thus none of the cases cited in West support an interpretation of that decision which goes beyond the actual situation of severable local activities presented in that case. Nor do they support the present taxes levied on exclusively interstate business. </s> [Footnote 2 For a detailed exposition of the manifold difficulties in complying with the diverse and complex taxing systems of the States, see Cohen, State Tax Allocations and Formulas which Affect Management Operating Decisions, 1 Jour. Taxation, No. 2 (July 1954), p. 2. </s> [Footnote 3 See, e. g., Wallace v. Hines, 253 U.S. 67 ; Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18 ; Adams Express Co. v. Ohio State Auditor, 165 U.S. 194 ; id., 166 U.S. 185 (opinion denying rehearing). </s> [Footnote 4 See Northwest Airlines, Inc., v. Minnesota, 322 U.S. 292 . In Northwest we pointed to the desirability of congressional action to formulate uniform standards for state taxation of the rapidly expanding airline industry. Following our decision Congress directed the Civil Aeronautics Board to study and report to Congress methods of eliminating burdensome, multiple state taxation of airlines. See H. R. Doc. No. 141, 79th Cong., 1st Sess. This report of the Board was a 158-page document whose length and complex economic content in dealing with only a single subject of state taxation, illustrate the difficulties and nonjudicial nature of the problem. Following the presentation of this extensive report, several bills were introduced into Congress providing for a single uniform apportionment formula [358 U.S. 450, 477] to be used by the States in taxing airlines. H. R. 1241, 80th Cong., 1st Sess.; S. 2453, 80th Cong., 2d Sess.; S. 420, 81st Cong., 1st Sess. None of these bills was enacted. </s> Australia has resolved the problem of conflicting and burdensome state taxation of commerce by a national arrangement whereby taxes are collected by the Commonwealth and from these revenues appropriate allocations are made annually to the States through the mechanism of a Premiers' Conference - the Prime Minister of the Commonwealth and the Premiers of the several States. </s> MR. JUSTICE WHITTAKER, with whom MR. JUSTICE FRANKFURTER and MR. JUSTICE STEWART join, dissenting. </s> I respectfully dissent. My disagreement with the Court is over what I think are constitutional fundamentals. I think that the Commerce Clause of the Constitution, Art. I, 8, cl. 3, as consistently interpreted by this Court until today, precludes the States from laying taxes directly on, and thereby regulating, "exclusively interstate commerce." But the Court's decision today holds that the States may do so. </s> The statutes, facts and findings involved are clear, sharp and undisputed. There is no room to doubt that the statutes involved were designed to tax income derived "exclusively [from] interstate commerce"; that the courts of the States concerned have found that the income involved derived "exclusively [from] interstate commerce"; [358 U.S. 450, 478] and that the taxes in question were laid directly on that interstate commerce. </s> Northwestern States Portland Cement Company, an Iowa corporation maintaining its principal office and only manufacturing plant in Mason City in that State, has for many years sold its cement locally in Iowa and, in interstate commerce, to dealers in neighboring States including Minnesota. Although the "exclusively" interstate character of the commerce done by Northwestern in Minnesota is not disputed, the course of its conduct in that State is summarized in the margin. 1 In 1950 Minnesota, [358 U.S. 450, 479] acting under its statutory "three factor formula" now contained in Minnesota Statutes, 1957, 290.19, 2 apportioned and allocated to Minnesota a substantial part of Northwestern's net income for each of the years 1933 through 1948. Upon the amount of net income so allocated, Minnesota assessed a tax against Northwestern for each of those years under what is now Minnesota Statutes, 1957, 290.03, which, in pertinent part, provides: </s> "290.03 . . . Classes of taxpayers. An annual tax for each taxable year, computed in the manner and at the rates hereinafter provided, is hereby imposed upon the taxable net income for such year of the following classes of taxpayers: </s> "(1) Domestic and foreign corporations . . . whose business within this state during the taxable year consists exclusively of . . . interstate commerce . . . ." </s> Upon Northwestern's refusal to pay those taxes, Minnesota brought this action in its own court to recover them. Northwestern defended upon the grounds (1) that [358 U.S. 450, 480] 290.03, as applied, imposed the taxes directly upon interstate commerce and, hence, regulated it in violation of the Commerce Clause of the Constitution, Art. I, 8, cl. 3, and (2) that the income involved was not subject to Minnesota's jurisdiction and its action in taxing it violated the Due Process Clause of the Fourteenth Amendment. At the conclusion of the trial, the court made formal findings of fact including the following: </s> "[Northwestern's] activities in this state were an integral part of its interstate activities, and all revenue received by it from customers in Minnesota resulted from its operations in interstate commerce." </s> But the trial court, nevertheless, sustained the tax and entered judgment for the State. Northwestern appealed to the Supreme Court of Minnesota which, without challenging the finding of fact above-quoted, affirmed, 250 Minn. 32, 84 N. W. 2d 373, and the case is here on Northwestern's appeal. 355 U.S. 911 . </s> Stockham Valves & Fittings, Inc., is a Delaware corporation maintaining its principal office and only manufacturing plant in Birmingham, Alabama. It makes valves and pipefittings which it sells locally in Alabama and, in interstate commerce, to wholesalers and jobbers in Georgia as well as in all other States of the Union. Although the facts are stipulated and the "exclusively" interstate character of the commerce done by Stockham in Georgia is not in dispute, the course of its conduct in that State is summarized in the margin. 3 Petitioner, as [358 U.S. 450, 481] State Revenue Commissioner of Georgia, acting under the "Three Factor Ratio" of the Code of Georgia, 1933, as amended, 92-3113 (4), 4 apportioned and allocated to Georgia a part of Stockham's net income for each of the years 1952, 1954, and 1955. Upon the amounts of net income so allocated, petitioner assessed a tax against Stockham for each of those years under the Code of [358 U.S. 450, 482] Georgia of 1933, as amended, 92-3113, which, in pertinent part, provides: </s> "Corporations, allocation and apportionment of income. - The tax imposed by this law shall apply to the entire net income, as herein defined, received by every corporation, foreign or domestic, owning property or doing business in this State. Every such corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, . . . whether or not any such activity or transaction is connected with interstate or foreign commerce." (Emphasis added.) </s> Upon demand, Stockham paid the taxes and, after denial of timely claim for refund, brought this suit to recover the amount paid, contending (1) that 92-3113, as applied, imposed the taxes directly upon interstate commerce and, hence, regulated it in violation of the Commerce Clause of the Constitution, and (2) that the income involved was not subject to Georgia's jurisdiction and its action in taxing it violated the Due Process Clause of the Fourteenth Amendment. The trial court sustained the tax. Stockham appealed to the Supreme Court of Georgia. It found that: </s> "[W]ithout dispute [Stockham] was engaged exclusively in interstate commerce in so far as its activities in Georgia are concerned . . . ." 213 Ga. 713, 719, 101 S. E. 2d 197, 201. </s> And it held that 92-3113, as applied, violated the Commerce Clause of the Constitution. It thereupon reversed the judgment, 213 Ga. 713, 101 S. E. 2d 197, and we granted Georgia's petition for certiorari. 356 U.S. 911 . </s> I submit that these simple recitals clearly show (1) that the Minnesota and Georgia statutes, in plain terms, purport to tax income derived "exclusively [from] [358 U.S. 450, 483] interstate commerce," (2) that the Minnesota and Georgia courts have found that the income involved was derived "exclusively [from] interstate commerce," and (3) that the taxes were laid directly on that interstate commerce. There is no room to dispute these admitted facts. Yet, I believe, the Court does not squarely face them but veiledly treats the cases as though intrastate commerce were to some extent involved. It says, referring to the Minnesota case, (a) that one of the salesmen was known as "district manager," (b) that the Minneapolis sales office was used "as a clearing house," (c) that "Orders were solicited and received from [builders, contractors and architects], on special forms furnished by appellant, directed to an approved local dealer who in turn would fill them by placing a like order with appellant, [and that] [t]hrough this system appellant's salesmen would in effect secure orders for local dealers which in turn were filled by appellant in the usual manner," and (d) that "Salesmen would also receive and transmit claims against appellant for loss or damage in any shipments made by it, informing the company of the nature thereof and requesting instructions concerning the same." These recitals, if found true, might very well have supported a finding, had there been one, that the taxpayer was engaged in interstate commerce in Minnesota. Particularly might the statement about the salesmen taking orders from builders, contractors and architects for local dealers have done so, for it was expressly held in Cheney Brothers Co. v. Massachusetts, 246 U.S. 147, 155 , that such conduct amounted to engaging in the local business of selling products for such dealers. But no such finding was made by the Minnesota courts. And there is more than colorable basis for believing that Minnesota did not desire such a finding, as any such practice could easily be ended by Northwestern, and Minnesota's purpose was not to rest on such a basis but to obtain an adjudication that [358 U.S. 450, 484] its statute, 290.03, constitutionally imposed a tax upon the taxpayer's net income from Minnesota customers though derived "exclusively [from] interstate commerce." Nor can the Court's seeming disdain of the word "commerce" and its frequent use, instead, of "activities" obscure the fact that it was "exclusively interstate commerce" that was taxed. The abstract use of the word "activities," as applied to a commerce question and distinguished from a due process one, has no legal significance. What is of legal consequence is whether the "activities" were in intrastate or in interstate commerce. Here, the Minnesota and Georgia courts have found that the income which was taxed had derived "exclusively [from] interstate commerce." </s> So if anything is plain it is that we are not presented with cases involving the doing of any interstate commerce in Minnesota or Georgia by the taxpayers. The courts of those States have expressly found that there was none. Therefore, we do not have a situation where a taxpayer was doing both intrastate and interstate commerce within the taxing State, thus to invoke application of the State's apportionment statute in order to determine how much of the total income of the taxpayer had derived from intrastate commerce in the taxing State, and was, therefore, subject to its taxing power. Instead we have here only interstate commerce, which the States are prohibited from regulating, by direct taxation or otherwise, by the Commerce Clause of the Constitution. </s> Yet, the Court "conclude[s] that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same." (Emphasis added.) I respectfully submit that this is novel doctrine, and that this Court has never before so held. [358 U.S. 450, 485] </s> The Court refers to our past opinions in this field as creating a "quagmire," and says "there is a `need for clearing up the tangled underbrush of past cases' with reference to the taxing power of the States . . . ." I respectfully submit that this Court's past opinions, rightly understood and aligned in their proper categories, are remarkably consistent in a field so varied and complex, and that they do not deserve the characterizations given them. It is quite true in this field - as I think is the case in almost every field - that loose statements can be found in some of the opinions which when considered in isolation, and certainly when taken out of context, are seemingly outside the line of the law. But I think it is entirely fair to say that such confusion as exists is mainly due to a failure properly to analyze, understand, categorize and apply the decisions. </s> In applying the Court's opinions in the field of state income taxation of commerce, it is at least necessary sharply to discern (1) whether the tax was laid upon the general income of a resident or domiciliary of the taxing State, (2) whether the taxpayer's production, manufacturing, distribution or management facilities, or some of them, were located in the taxing State, (3) whether the taxpayer conducted both intrastate and interstate commerce in the taxing State, and, if so, (4) whether the tax was directly laid on income derived from interstate commerce, or - what is the equivalent - on the whole of the income, or whether the whole of the income was used as one of the several factors in an apportionment formula merely for the purpose of fairly measuring the uncertain percentage or proportion of the total income that was earned within the taxing State. </s> Let us start our consideration with fundamentals. Of course, the foundation is the Commerce Clause itself. It provides: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several [358 U.S. 450, 486] States, and with the Indian Tribes . . . ." U.S. Const., Art. I, 8, cl. 3. That clause "by its own force created an area of trade free from interference by the States." Freeman v. Hewit, 329 U.S. 249, 252 . "[N]o State has the right to lay a tax on interstate commerce in any form. . . . [T]he reason is that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress." Leloup v. Port of Mobile, 127 U.S. 640, 648 . And see the thirteen cases in this Court there cited in support of the quoted text. Mr. Justice Brandeis, speaking for the Court in Sprout v. South Bend, 277 U.S. 163, 171 , declared that "in order that [a State] fee or tax shall be valid, it must appear that it is imposed solely on account of the interstate business; that the amount exacted is not increased because of the interstate business done; that one engaged exclusively in interstate commerce would not be subject to the imposition; and that the person taxed could discontinue the intrastate business without withdrawing also from the interstate business." (Emphasis added.) The same declaration was made for the Court by Mr. Justice Butler in East Ohio Gas Co. v. Tax Commission, 283 U.S. 465, 470 , and again by Mr. Chief Justice Hughes in Cooney v. Mountain States Tel. Co., 294 U.S. 384, 393 . </s> From this alone it would seem necessarily to follow that the taxes here challenged, which were laid by the States directly on "exclusively interstate commerce," burdened that commerce and, hence, regulated it in violation of the Commerce Clause of the Constitution. But there is more. This Court has consistently struck down state taxes which were laid on business that was exclusively interstate in character. Cheney Brothers Co. v. Massachusetts, 246 U.S. 147, 153 ; Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203 ; Ozark Pipe Line Corp. v. Monier, 266 U.S. 555 ; Spector Motor Service v. O'Connor, 340 U.S. 602 . Cf. Joseph v. Carter & Weekes Co., [358 U.S. 450, 487] 330 U.S. 422 ; Freeman v. Hewit, supra. Neither the Court nor counsel have cited, and our research has not disclosed, a single opinion by this Court that has upheld a state tax laid on "exclusively interstate commerce," and we are confident none exists. </s> The Court recognizes that "the States, under the Commerce Clause, are not allowed `one single-tax-worth of direct interference with the free flow of commerce.' Freeman v. Hewit, 329 U.S. 249 ,256." It then says "On the other hand, it has been established since 1918 that a net income tax on revenues derived from interstate commerce does not offend constitutional limitations upon state interference with such commerce. The decision of Peck & Co. v. Lowe, 247 U.S. 165 , pointed the way." What way did it point? There the 1913 federal income tax Act, imposing a tax upon the "entire net income arising or accruing from all sources during the preceding calendar year," was applied by the Federal Government to the whole net income of one who derived about three-fifths of it from "buying goods in the several States, shipping them to foreign countries and there selling them." The question was whether such a tax validly could be imposed in the light of Art. I, 9, cl. 5 of the Constitution which provides that "No Tax or Duty shall be laid on Articles exported from any State." This Court held that the export clause only precluded taxation of "articles in course of exportation," and did not prohibit federal taxation of general income of the taxpayer "from all sources," and that the tax was "not laid on income from exportation because of its source," but upon general income "from all sources," and was, therefore, within the federal power to levy. 247 U.S., at 174 . But here the States of Minnesota and Georgia "laid [the taxes directly] on income from [exclusively interstate commerce] because of its source." They do not contend that they were laid on any intrastate commerce but admit [358 U.S. 450, 488] there was none. I submit that the Lowe case does not in any sense "point the way" for direct taxation by a State of that which it finds and admits to be "exclusively interstate commerce." </s> The Court then says "The first case in this Court applying the doctrine [of the Lowe case] to interstate commerce was that of U.S. Glue Co. v. Town of Oak Creek, 247 U.S. 321 ." I submit that nothing in that case is authority for the proposition that a State may tax "exclusively interstate commerce." Exactly to the contrary, it sustained a tax only on "that proportion of [the taxpayer's] income derived from business transacted . . . within the State . . . ." 247 U.S., at 329 . That was the whole point of the case. There the Glue Company, a Wisconsin corporation, maintained its principal office and its only manufacturing plant in the town of Oak Creek, in that State. It also maintained stocks in branches in other States. It sold its products both locally in Wisconsin, and in other States in interstate commerce, shipping either directly from its plant in Wisconsin or from one of its branches in another State. In the year involved, about one-seventh of its sales were made locally in Wisconsin, four-sevenths of them were made, and the goods shipped from its factory directly to customers in other States, in interstate commerce, and two-sevenths of them were made from stocks in its branches in other States. Wisconsin's income tax statutes provided, in pertinent part, that "any person engaged in business within and without the state shall . . . be taxed only upon that proportion of such income as is derived from business transacted . . . within the state." "In order to determine what part of the income of a corporation engaged in business within and without the State . . . is to be taxed as derived from business transacted . . . within the State, reference is had to a formula prescribed by another statute," which employed the total income of the taxpayer [358 U.S. 450, 489] as one of its several factors. "This formula was applied in apportioning [the taxpayer's] net `business income' for the year" involved, which produced an amount substantially exceeding one-seventh of its total income - the amount of its local sales. "[U]pon the portion thus attributed to the State . . . the tax in question was levied." 247 U.S., at 323 -325. The Glue Company resisted the tax, contending that it was imposed directly upon interstate commerce in violation of the Commerce Clause of the Constitution, and, failing of relief in the Supreme Court of the State, it brought the case here on writ of error. This Court affirmed, concluding that the tax was "measured . . . by the net proceeds from this part of plaintiff's business, along with a like imposition upon its income derived from other sources, and in the same way that other corporations doing business within the State are taxed upon that proportion of their income derived from business transacted . . . within the State . . . ." 247 U.S., at 329 . (Emphasis added.) </s> It would seem too obvious for debate that if a taxpayer maintains its factory and produces all its goods in one State but sells the whole in other States in interstate commerce, it has derived some portion of its income in the State of manufacture or production. It should be obvious, too, that where such a manufacturer has sold some of its products locally and others of them in interstate commerce, that the mere ratio of intrastate sales to interstate ones well might not constitute a fair basis for determining what part of the net income was derived from intrastate commerce on the one hand, and interstate commerce on the other. Inasmuch as it has always been thought by American lawyers that the States cannot tax interstate commerce but may tax intrastate commerce, it has been deemed necessary for the State to determine what portion of the total income of the taxpayer was derived from intrastate commerce done within its borders [358 U.S. 450, 490] and is therefore subject to its taxing power. To accomplish that purpose, most States, like Wisconsin in the U.S. Glue case, and like Minnesota and Georgia in the cases here, have adopted apportionment statutes, applicable to situations where the taxpayer is doing business both within and without the State, which use, as one of the several factors, the total income of the taxpayer in measuring the part of the income that was derived from within the taxing State. Those were the principles applied in the U.S. Glue case. </s> Those principles were again made unmistakably clear, and were applied, by Mr. Justice Brandeis, in Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113 , next relied on by the Court. That case does not hold that "exclusively interstate commerce" may be taxed by a State. It holds just the contrary. There Underwood Typewriter Company, though a Delaware corporation, had become a domiciliary of Connecticut and manufactured all of its machines at its factory in that State. It sold them both locally in Connecticut and in other States in interstate commerce. In the year involved, about 33 percent of its dollar volume of sales was made in Connecticut and the remainder in other States in interstate commerce. To determine the amount of Underwood's net income derived from intrastate commerce, Connecticut applied the formula prescribed by its apportionment statute. This resulted in a determination that 47 percent of Underwood's net income had been derived from intrastate commerce in Connecticut. Upon that amount it computed and assessed its 2 percent net income tax. This Court, in sustaining the tax, over Underwood's objection that it violated the Commerce Clause of the Constitution, said: "This tax is based upon the net profits earned within the State. That a tax measured by net profits is valid, although these profits may have been derived in part, or [358 U.S. 450, 491] indeed mainly, from interstate commerce is settled. U.S. Glue Co. v. Oak Creek, 247 U.S. 321 ; Shaffer v. Carter, 252 U.S. 37, 57 . Compare Peck & Co. v. Lowe, 247 U.S. 165 . . . . The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other States. In this it was typical of a large part of the manufacturing business conducted in the State. The legislature in attempting to put upon this business its fair share of the burden of taxation was faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders. It, therefore, adopted a method of apportionment which, for all that appears in this record, reached, and was meant to reach, only the profits earned within the State." 254 U.S., at 120 -121. (Emphasis added.) </s> The Court next takes up the case of Memphis Natural Gas Co. v. Beeler, 315 U.S. 649 . That case does not at all hold that "exclusively interstate commerce" may be taxed by a State. It, too, holds just the contrary. There Memphis Natural Gas Company purchased gas in Louisiana which it transported through its interstate pipe line to Tennessee where it sold 20 percent of it in interstate commerce, but it delivered 80 percent of it to Memphis Power & Light Company. "That company distributes it to consumers under a contract with taxpayer which the Supreme Court of Tennessee has found to be a joint undertaking of the two companies whereby taxpayer furnishes gas from its pipeline, the Memphis company furnishes facilities and service for distribution and sale to consumers, and the proceeds of the sale, after deduction of specified costs and expenses, are divided between the two companies." 315 U.S., at 652 . A Tennessee statute imposed a tax on all foreign and domestic corporations of "three per cent. of the net earnings . . . arising [358 U.S. 450, 492] from business done wholly within the state, excluding earnings arising from interstate commerce." Ibid. Acting under that statute, a tax "was laid on [the taxpayer's] net earnings from the distribution of gas under its contract with the Memphis company." 315 U.S., at 653 . This Court said that "if the Supreme Court of Tennessee correctly construed taxpayer's contract with the Memphis company as establishing a profit-sharing joint adventure in the distribution of gas to Tennessee consumers, the taxpayer's net earnings under the contract were subject to local taxation." 315 U.S., at 653 -654. (Emphasis added.) This Court then found that the Supreme Court of Tennessee had correctly construed the contract and that the taxpayer's activities "constituted participation in the business of distributing the gas to consumers after its delivery into the service pipes of the Memphis company," and sustained the tax, concluding: "There is no contention or showing here that the tax assessed is not upon net earnings justly attributable to Tennessee." 315 U.S., at 656 , 657. (Emphasis added.) </s> It is true that Mr. Chief Justice Stone's opinion in the Beeler case contains the following language at page 656: </s> "In any case, even if taxpayer's business were wholly interstate commerce, a nondiscriminatory tax by Tennessee upon the net income of a foreign corporation having a commercial domicile there, cf. Wheeling Steel Corp. v. Fox, [298 U.S. 193], or upon net income derived from within the state, Shaffer v. Carter, 252 U.S. 37, 57 ; Wisconsin v. Minnesota Mining Co., 311 U.S. 452 ; cf. New York ex rel. Cohn v. Graves, 300 U.S. 308 , is not prohibited by the commerce clause on which alone taxpayer relies. U.S. Glue Co. v. Oak Creek, 247 U.S. 321 ; Underwood Typewriter Co. v. Chamberlain, 245 U.S. 113, 119 -20 . . . ." (Emphasis added.) [358 U.S. 450, 493] </s> The first sentence of that quotation caused Mr. Justice Burton to say, in Spector Motor Service v. O'Connor, 340 U.S. 602, 609 , note 6, that the statement was "not essential to the decision in the case." But it is a mistake to say that Mr. Chief Justice Stone's language even comes near holding that exclusively interstate commerce may be taxed by a State. Note that he spoke of a foreign corporation "having a commercial domicile" in the taxing State. That connotes the conduct of intrastate commerce in the taxing State, such as was involved in the Fox case which he cited, i. e., the maintenance in the taxing State of the taxpayer's "principal office" in which its principal officers were located and conducted their business, and where a duplicate stock ledger and the records of capital stock transactions of the taxpayer were continuously kept. Of course that conduct amounted to the doing of intrastate commerce, and naturally the State could tax that intrastate commerce. And that's all the State did in Fox. Interstate commerce was not taxed either in Beeler or in Fox. </s> The Court then cites Bass, Ratcliff & Gretton, Ltd., v. State Tax Commission, 266 U.S. 271 , and Norfolk & W. R. Co. v. North Carolina, 297 U.S. 682 . But from the Court's own recitals respecting those cases it appears that the taxpayers there "carried on substantial local activities" within the taxing States, which permitted the States to lay taxes on that intrastate commerce, "measured on a proportional formula." Those cases are exactly in line with the U.S. Glue, Underwood, and Beeler cases. They did not sustain a state tax on exclusively interstate commerce. </s> The Court next cites this Court's per curiam in West Publishing Co. v. McColgan, 328 U.S. 823 , and quotes from the California opinion, which was there affirmed, only the following: "The employees were given space in the offices of attorneys in return for the use of plaintiff's [358 U.S. 450, 494] books stored in such offices." It will be seen by reference to the California opinion that the California court had found considerably more intrastate commerce. It had found that the taxpayer "regularly employed solicitors in [that] state who . . . were authorized to receive payments on orders taken by them, to collect delinquent accounts, and to make adjustments in case of complaints by customers, [and who] were given space in the offices of attorneys in return for the use of [the taxpayer's] books stored in such offices [which were] advertised as its local offices . . . ." 27 Cal. 2d 705, 707, 166 P.2d 861, 862. That finding established the usual criteria which this Court has consistently held to constitute the doing of intrastate commerce. California determined and taxed only the amount of that intrastate commerce. It did not tax any interstate commerce. This Court in its per curiam affirmance cited the landmark Commerce Clause cases of U.S. Glue Co. v. Oak Creek, supra; Memphis Natural Gas Co. v. Beeler, supra, and the landmark Due Process Clause case of International Shoe Co. v. Washington, 326 U.S. 310 . Surely this makes it clear that at least this Court did not sustain any tax on interstate commerce. </s> The Court's quotation from Wisconsin v. Minnesota Mining & Manufacturing Co., 311 U.S. 452 , shows on its face that Wisconsin there taxed only income "attributable to earnings within the taxing state . . . ." </s> Spector Motor Service v. O'Connor, 340 U.S. 602 , is quite consistent with the prior cases. There, by a process of elimination, the Court determined what the tax was not in arriving at what it was, and concluded that it was a tax which attached "solely to the franchise of petitioner to do interstate business." The Court then said: </s> "This Court heretofore has struck down, under the Commerce Clause, state taxes upon the privilege of carrying on a business that was exclusively interstate in character. The constitutional infirmity of such a [358 U.S. 450, 495] tax persists no matter how fairly it is apportioned to business done within the state." (Citing Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203 ; Ozark Pipe Line Corp. v. Monier, 266 U.S. 555 ; and referring, for comparison, to Interstate Pipe Line Co. v. Stone, 337 U.S. 662, 669 ; Joseph v. Carter & Weekes Co., 330 U.S. 422 ; Freeman v. Hewit, 329 U.S. 249 .) </s> "Our conclusion is not in conflict with the principle that, where a taxpayer is engaged both in intrastate and interstate commerce, a state may tax the privilege of carrying on intrastate business and, within reasonable limits, may compute the amount of the charge by applying the tax rate to a fair proportion of the taxpayer's business done within the state . . . ." 340 U.S., at 609 -610. </s> Is it not plain that this recent case holds that "exclusively" interstate commerce may not be taxed by a State? </s> With this demonstration of the holdings in the commerce cases relied upon by the Court, surely we can repeat, with the conviction of demonstrated truth, our statement that none of the cases relied on by the Court supports its holding "that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State . . . ." The fact that such taxes may be fairly or "properly apportioned" is without legal consequence, for "The constitutional infirmity of such a tax persists no matter how fairly it is apportioned to business done within the state." Spector Motor Service v. O'Connor, supra, at 609. That this Court has always sustained state taxes on fairly determined amounts of intrastate income should be evident enough from the shown fact that it has struck them down only when there was none. [358 U.S. 450, 496] </s> The Court says "We believe that the rationale of these cases, involving income levies by States, controls the issues here." I agree that the rationale of those cases controls the issues here. But I cannot agree that those cases involved like "income levies by States." They involved levies of income taxes on intrastate commerce, not on "exclusively interstate commerce." Whereas, here both the Minnesota and Georgia courts have found that the income taxed by those States had derived "exclusively [from] interstate commerce," and that the tax was not levied upon any intrastate commerce for there was none. </s> In these circumstances, I submit it is idle to say that the taxes were not laid "on" interstate commerce, but on the taxpayer's general income after all commerce had ended, and, therefore, did not burden, nor hence regulate, interstate commerce. For in addition to the plainness of the fact, the courts of Minnesota and Georgia have explicitly held in these cases that the income involved was derived "exclusively [from] interstate commerce," and that the taxes were laid on that income. The taxes do not purport to have been, and could not have been, laid on any income derived from intrastate commerce in those States for there was none. It necessarily follows that the taxes were "laid on income from [interstate commerce] because of its source," Peck & Co. v. Lowe, supra, at 174, just as in Spector Motor Service v. O'Connor, supra. </s> The Commerce Clause denies state power to regulate interstate commerce. It vests that power exclusively in Congress. Direct taxation of "exclusively interstate commerce" is a substantial regulation of it and, therefore, in the absence of congressional consent, the States may not directly tax it. This Court has so held every time the question has been presented here until today. Without congressional consent, the States of Minnesota and Georgia have laid taxes directly on what they admit was [358 U.S. 450, 497] "exclusively interstate commerce." Hence, in my view, those levies plainly violated the Commerce Clause of the Constitution and cannot stand consistently therewith and with our prior cases. I would, therefore, reverse the judgment of the Supreme Court of Minnesota in No. 12 and affirm the judgment of the Supreme Court of Georgia in No. 33. </s> [Footnote 1 Northwestern did not qualify, under Minnesota laws, to do business in that State. During the years involved it maintained a small sales office in Minneapolis where it employed two salesmen and a secretary. Her duties were wholly clerical. It also employed from two to three salesmen at other points in Minnesota who worked out of their homes. Apart from a small amount of furniture in its Minneapolis office and two salesmen's automobiles, it owned no property within the State, nor did it have a bank account therein, and all salaries and reimbursable expenses of the salesmen and the secretary, office rent, telephone bills and all other expenses of the Minneapolis office, were paid directly from the home office. The salesmen solicited and took orders from dealers but they were not authorized to accept orders or make contracts for the company, nor were they authorized to receive payments, collect accounts or adjust claims. Orders which they received were mailed to the home office for approval of credit and for acceptance or rejection. The orders were acknowledged and accepted or rejected in writing, mailed from the home office directly to the purchasers. Accepted orders were filled by delivery of the cement to a rail carrier, f. o. b. plant at Mason City, and consigned to the purchasers. Sales invoices were prepared in and mailed from the home office directly to the purchasers who made payment directly to the company at its home office. The salesmen also called on contractors and other users of cement, not to solicit orders, but for the purpose of acquainting them with the merits of Northwestern's product and of advising them of the names of the local dealers where it might be purchased. There was evidence which might have supported a finding that these salesmen sometimes, in effect, took orders from contractors for, and delivered them to, [358 U.S. 450, 479] local dealers who stocked Northwestern's cement, and thus were engaged in the local business of selling cement for such dealers, Cheney Brothers Co. v. Massachusetts, 246 U.S. 147, 155 . But no such finding was made, and there is more than colorable basis for believing that Minnesota did not press for such a finding, as any such practice could easily be ended by Northwestern and Minnesota's evident object was not to rest on such a basis, but to obtain an adjudication that its statute, 290.03, validly imposed a tax upon Northwestern's net income from Minnesota customers though derived "exclusively [from] interstate commerce." </s> [Footnote 2 Minnesota Statutes, 1957, 290.19, provides, in substance, that where business is done "partly within and partly without this state" there shall be apportioned and allocated to Minnesota, as income derived from the intrastate commerce done in that State, an amount equal to the ratio which the taxpayer's (a) sales made within that State, (b) tangible property owned or used in that State, and (c) total payrolls paid in that State bear to the taxpayer's totals of those factors. </s> [Footnote 3 To facilitate the conduct of its commerce, Stockham keeps a stock of its products in public warehouses in Birmingham, Chicago, Houston and Vernon (California), and maintains in each of those cities, and in each of 8 other widely separated industrial centers, including Atlanta, a small sales office. It has not qualified, under Georgia laws, to do business in that State. Its Atlanta office, which is listed in the Atlanta telephone and city directories, is staffed with [358 U.S. 450, 481] one salesman and a secretary. Her duties are entirely clerical. The salesman spends about one-third of his working time in Georgia, and the remainder in four other southeastern States, calling on persons who are in position to recommend or specify the use of particular building supplies in construction work, such as architects, engineers and contractors, and on independent wholesalers and jobbers, endeavoring to impress them with the merits of, and to induce them to specify or recommend the use of, Stockham's products. Although he has no authority to accept orders or to make contracts for the company, he solicits orders from wholesalers and jobbers, and transmits such as he receives to the home office for approval of credit and acceptance or rejection, but "for the most part" orders are mailed directly by the purchasers to the home office in Birmingham. Accepted orders are filled by delivery of the goods to the purchasers, or to a common carrier consigned to the purchasers, at the Birmingham plant. Sales invoices are prepared and mailed by the home office directly to the purchasers who remit to the home office. The salesman does not receive payments, collect accounts or adjust claims. Except for the small amount of office furniture in its Atlanta sales office the company has no property in Georgia, nor does it have a bank account there, and the salaries of the salesman and secretary and their reimbursable expenses, the office rent, telephone bills and all other expenses of the Atlanta office are paid directly from the home office. </s> [Footnote 4 Code of Georgia, 1933, as amended, 92-3113 (4) provides that "Where income is derived from the manufacture, production, or sale of tangible personal property, the portion of the net income therefrom attributable to property owned or business done within this State shall be taken to be the portion arrived at by" the arithmetical average which the ratios of the taxpayer's (a) inventories of products held in the State, (b) compensation paid or incurred in the State, and (c) gross receipts from business done within the State bear to the taxpayer's totals of those factors. </s> [358 U.S. 450, 498]

United States Supreme Court ALLEN v. STATE BOARD OF ELECTIONS(1969) No. 25 Argued: October 15, 1968Decided: March 3, 1969 </s> [Footnote * Together with No. 25, Fairley et al. v. Patterson, Attorney General of Mississippi, et al., No. 26, Bunton et al. v. Patterson, Attorney General of Mississippi, et al., and No. 36, Whitley et al. v. Williams, Governor of Mississippi, et al., on appeal from the United States District Court for the Southern District of Mississippi, argued on October 16, 1968. </s> Pursuant to 4 (b) of the Voting Rights Act of 1965 the provisions of 4 (a), suspending all "tests or devices" for five years, were made applicable to certain States, including Mississippi and Virginia. As a result, those States were prohibited by 5 from enacting or seeking "to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964," without first submitting the change to the U.S. Attorney General and obtaining his consent or securing a favorable declaratory judgment from the District Court for the District of Columbia. In Nos. 25, 26, and 36, appellants sought declaratory judgments in the District Court for the Southern District of Mississippi that certain amendments to the Mississippi Code were subject to the provisions of 5 and thus not enforceable until the State complied with the approval requirements. In No. 25 the amendment provided for at-large election of county supervisors instead of election by districts. In No. 26 the amendment eliminated the option of electing or appointing superintendents of education in 11 counties and provided that they shall be appointed. The amendment in No. 36 changed the requirements for independent candidates running in general elections. In all three cases the three-judge District Court ruled that the amendments did not come within the purview of 5 and dismissed the complaints. No. 3 concerned a bulletin issued by the Virginia Board of Elections instructing election judges to assist qualified, illiterate voters who request assistance in marking ballots. Appellants sought a declaratory judgment in the District Court for the Eastern District of [393 U.S. 544, 545] Virginia that the statute providing for handwritten write-in votes and the modifying bulletin violated the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act. In the 1966 election appellants attempted to use labels for write-in candidates, but the election officials refused to count appellants' ballots. Appellants sought only prospective relief, as the election outcome would not have been changed if the ballots had been counted. In the District Court they did not argue that 5 precluded enforcement of the procedure set out in the bulletin but that 4 suspended the write-in requirement. The three-judge court dismissed the complaint. Held: </s> 1. Since the Virginia legislation was generally attacked as inconsistent with the Voting Rights Act, and there is no factual dispute, the Court may, in the interests of judicial economy, determine the applicability in No. 3 of 5 of the Act, even though that section was not argued below. P. 554. </s> 2. Private litigants may invoke the jurisdiction of the district courts to obtain relief under 5, to insure the Act's guarantee that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to that section. Pp. 554-557. </s> 3. The restriction of 14 (b) of the Act, which provides that "[n]o court other than the District Court for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this subchapter," does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to 5's approval requirements, and these actions may be brought in the local district courts. Pp. 557-560. </s> 4. In light of the extraordinary nature of the Act and its effect on federal-state relationships, and the unique approval requirements of 5, which also provides that "[a]ny action under this section shall be heard and determined by a court of three judges," disputes involving the coverage of 5 should be determined by three-judge courts. Pp. 560-563. </s> 5. The state statutes involved in these cases are subject to the approval requirements of 5. Pp. 563-571. </s> (a) The Act, which gives a broad interpretation to the right to vote and recognizes that voting includes "all action necessary [393 U.S. 544, 546] to make a vote effective," was aimed at the subtle as well as the obvious state regulations which have the effect of denying citizens their right to vote because of race. Pp. 565-566. </s> (b) The legislative history lends support to the view that Congress intended to reach any enactment which altered the election law of a covered State in even a minor way. Pp. 566-569. </s> (c) There is no direct conflict between the Court's interpretation of this Act and the principles established by the reapportionment cases, and consideration of any possible conflict should await a concrete case. P. 569. </s> (d) The enactment in each of these cases constitutes a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" within the meaning of 5. Pp. 569-571. </s> 6. The Act requires that the State must in some unambiguous and recordable manner submit any legislation or regulation to the Attorney General with a request for his consideration pursuant to the Act, and there is no "submission" when the Attorney General merely becomes aware of the legislation or when briefs are served on him. P. 571. </s> 7. In view of the complexity of these issues of first impression, the lack of deliberate defiance of the Act resulting from the States' failure to submit the enactments for approval, and the fact that the discriminatory purpose or effect of these statutes, if any, has not been judicially determined, this decision has prospective effect only. The States remain subject to the continuing strictures of 5 until they obtain from the District Court for the District of Columbia a declaratory judgment that for at least five years they have not used the "tests or devices" proscribed by 4. Pp. 571-572. </s> No. 3, 268 F. Supp. 218, vacated and remanded. No. 25, 282 F. Supp. 164; No. 26, 281 F. Supp. 918; and No. 36, each reversed and remanded. </s> Norman C. Amaker argued the cause for appellants in No. 3 With him on the brief were Jack Greenberg, James M. Nabrit III, Oliver W. Hill, S. W. Tucker, Henry L. Marsh III, and Anthony G. Amsterdam. Armand Derfner and Elliott C. Lichtman argued the cause for appellants in Nos. 25, 26, and 36. Lawrence [393 U.S. 544, 547] Aschenbrenner was on the brief for appellants in Nos. 25 and 26. With Mr. Derfner on the brief for appellants in No. 36 were Alvin J. Bronstein and Richard B. Sobol. </s> R. D. McIlwaine III, First Assistant Attorney General of Virginia, argued the cause for appellees in No. 3. With him on the brief were Robert Y. Button, Attorney General, William R. Blandford, and William C. Carter. William A. Allain and Will S. Wells, Assistant Attorneys General of Mississippi, argued the cause for appellees in Nos. 25, 26, and 36. With Mr. Allain on the brief for appellees in No. 25 were Joe T. Patterson, Attorney General, and Dudley W. Conner. With Mr. Wells on the briefs for appellees in Nos. 26 and 36 was Mr. Patterson. </s> Assistant Attorney General Pollak argued the cause for the United States, as amicus curiae, urging reversal in Nos. 25, 26, and 36. With him on the brief were Solicitor General Griswold, Louis F. Claiborne, Francis X. Beytagh, Jr., and Nathan Lewin. </s> MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. </s> These four cases, three from Mississippi and one from Virginia, involve the application of the Voting Rights Act of 1965 1 to state election laws and regulations. The Mississippi cases were consolidated on appeal and argued together in this Court. Because of the grounds on which we decide all four cases, the appeal in the Virginia case is also disposed of by this opinion. 2 </s> [393 U.S. 544, 548] </s> In South Carolina v. Katzenbach, 383 U.S. 301 (1966), we held the provisions of the Act involved in these cases to be constitutional. These cases merely require us to determine whether the various state enactments involved are subject to the requirements of the Act. </s> We gave detailed treatment to the history and purposes of the Voting Rights Act in South Carolina v. Katzenbach, supra. Briefly, the Act implemented Congress' firm intention to rid the country of racial discrimination in voting. It provided stringent new remedies against those practices which have most frequently denied citizens the right to vote on the basis of their race. Thus, in States covered by the Act, 3 literacy tests and similar voting qualifications were suspended for a period of five years from the last occurrence of substantial voting discrimination. However, Congress apparently feared that the mere suspension of existing tests would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect. 4 Not underestimating the ingenuity of those bent on preventing Negroes from voting, Congress therefore enacted 5, the focal point of these cases. </s> Under 5, if a State covered by the Act passes any "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964," no person can be deprived of his right to vote "for failure to comply with" the new enactment "unless and until" the State seeks and receives a declaratory judgment in the United States District Court for the District of [393 U.S. 544, 549] Columbia that the new enactment "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 79 Stat. 439, 42 U.S.C. 1973c (1964 ed., Supp. I). See Appendix, infra. </s> However, 5 does not necessitate that a covered State obtain a declaratory judgment action before it can enforce any change in its election laws. It provides that a State may enforce a new enactment if the State submits the new provision to the Attorney General of the United States and, within 60 days of the submission, the Attorney General does not formally object to the new statute or regulation. The Attorney General does not act as a court in approving or disapproving the state legislation. If the Attorney General objects to the new enactment, the State may still enforce the legislation upon securing a declaratory judgment in the District Court for the District of Columbia. Also, the State is not required to first submit the new enactment to the Attorney General as it may go directly to the District Court for the District of Columbia. The provision for submission to the Attorney General merely gives the covered State a rapid method of rendering a new state election law enforceable. 5 Once the State has successfully complied with the 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional [393 U.S. 544, 550] suits attacking its constitutionality; there is no further remedy provided by 5. </s> In these four cases, the States have passed new laws or issued new regulations. The central issue is whether these provisions fall within the prohibition of 5 that prevents the enforcement of "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" unless the State first complies with one of the section's approval procedures. </s> No. 25, Fairley v. Patterson, involves a 1966 amendment to 2870 of the Mississippi Code of 1942. 6 The amendment provides that the board of supervisors of each county may adopt an order providing that board members be elected at large by all qualified electors of the county. Prior to the 1966 amendment, all counties by law were divided into five districts; each district elected one member of the board of supervisors. After the amendment, Adams and Forrest Counties adopted the authorized orders, specifying that each candidate must run at large, but also requiring that each candidate be a resident of the county district he seeks to represent. </s> The appellants are qualified electors and potential candidates in the two counties. They sought a declaratory judgment in the United States District Court for the Southern District of Mississippi that the amendment to 2870 was subject to the provisions of 5 of the Act and hence could not be enforced until the State complied with the approval requirements of 5. 7 </s> No. 26, Bunton v. Patterson, concerns a 1966 amendment to 6271-08 of the Mississippi Code. 8 The amendment [393 U.S. 544, 551] provides that in 11 specified counties, the county superintendent of education shall be appointed by the board of education. Before the enactment of this amendment, all these counties had the option of electing or appointing the superintendent. Appellants are qualified electors and potential candidates for the position of county superintendent of education in three of the counties covered by the 1966 amendment. They sought a declaratory judgment that the amendment was subject to 5, and thus unenforceable unless the State complied with the 5 approval requirements. </s> No. 36, Whitley v. Williams, involves a 1966 amendment to 3260 of the Mississippi Code, which changed the requirements for independent candidates running in general elections. 9 The amendment makes four revisions: (1) it establishes a new rule that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election; (2) the time for filing a petition as an independent candidate is changed to 60 days before the primary election from the previous 40 days before the general election; (3) the number of signatures of qualified electors needed for the independent qualifying petition is increased substantially; and (4) a new provision is added that each qualified elector who signs the independent qualifying petition must personally sign the petition and must include his polling precinct and county. Appellants are potential candidates whose nominating petitions for independent listing on the ballot were rejected for failure to comply with one or more of the amended provisions. 10 </s> [393 U.S. 544, 552] </s> In all three of these cases, the three-judge District Court ruled that the amendments to the Mississippi Code did not come within the purview of and are not covered by 5, and dismissed the complaints. 11 Appellants brought direct appeals to this Court. 12 We consolidated the cases and postponed consideration of jurisdiction to a hearing on the merits. 392 U.S. 902 (1968). </s> No. 3, Allen v. State Board of Elections, concerns a bulletin issued by the Virginia Board of Elections to all election judges. The bulletin was an attempt to modify the provisions of 24-252 of the Code of Virginia of 1950 which provides, inter alia, that "any voter [may] place on the official ballot the name of any person in his own handwriting . . . ." 13 The Virginia Code ( 24-251) further provides that voters with a physical incapacity may be assisted in preparing their ballots. For example, one who is blind may be aided in the preparation of his ballot by a person of his choice. Those unable to mark their ballots due to any other physical disability may be assisted by one of the election judges. However, no statutory provision is made for assistance to those who wish to write in a name, but who are unable to do so because of illiteracy. When Virginia was brought under the coverage of the Voting Rights Act of 1965, Virginia election officials apparently thought that the provision in 24-252, requiring a voter to cast a write-in vote in the voter's own handwriting, was incompatible with the provisions of 4 (a) of the Act suspending the [393 U.S. 544, 553] enforcement of any test or device as a prerequisite to voting. 14 Therefore, the Board of Elections issued a bulletin to all election judges, instructing that the election judge could aid any qualified voter in the preparation of his ballot, if the voter so requests and if the voter is unable to mark his ballot due to illiteracy. 15 </s> Appellants are functionally illiterate registered voters from the Fourth Congressional District of Virginia. They brought a declaratory judgment action in the United States District Court for the Eastern District of Virginia, claiming that 24-252 and the modifying bulletin violate the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act of 1965. A three-judge court was convened and the complaint dismissed. 16 A direct appeal was brought to this Court and we postponed consideration of jurisdiction to a hearing on the merits. 392 U.S. 902 (1968). </s> In the 1966 elections, appellants attempted to vote for a write-in candidate by sticking labels, printed with the name of their candidate, on the ballot. The election officials refused to count appellants' ballots, claiming that the Virginia election law did not authorize marking ballots with labels. As the election outcome would not have been changed had the disputed ballots been counted, appellants sought only prospective relief. In the District Court, appellants did not assert that 5 precluded enforcement [393 U.S. 544, 554] of the procedure prescribed by the bulletin. Rather, they argued 4 suspended altogether the requirement of 24-252 that the voter write the name of his choice in the voter's own handwriting. Appellants first raised the applicability of 5 in their jurisdictional statement filed with this Court. We are not precluded from considering the applicability of 5, however. The Virginia legislation was generally attacked on the ground that it was inconsistent with the Voting Rights Act. Where all the facts are undisputed, this Court may, in the interests of judicial economy, determine the applicability of the provisions of that Act, even though some specific sections were not argued below. 17 </s> We postponed consideration of our jurisdiction in these cases to a hearing on the merits. Therefore, before reaching the merits, we first determine whether these cases are properly before us on direct appeal from the district courts. </s> I. </s> These suits were instituted by private citizens; an initial question is whether private litigants may invoke the jurisdiction of the district courts to obtain the relief requested in these suits. 28 U.S.C. 1343 provides: "The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . . (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote." Clearly, if 5 authorizes appellants to secure the relief sought, the district courts had jurisdiction over these suits. </s> The Voting Rights Act does not explicitly grant or deny private parties authorization to seek a declaratory judgment [393 U.S. 544, 555] that a State has failed to comply with the provisions of the Act. 18 However, 5 does provide that "no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, 5]." Analysis of this language in light of the major purpose of the Act indicates that appellants may seek a declaratory judgment that a new state enactment is governed by 5. Further, after proving that the State has failed to submit the covered enactment for 5 approval, the private party has standing to obtain an injunction against further enforcement, pending the State's submission of the legislation pursuant to 5. 19 </s> [393 U.S. 544, 556] </s> The Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens. South Carolina v. Katzenbach, supra, at 308, 309. Congress realized that existing remedies were inadequate to accomplish this purpose and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws. 20 </s> The achievement of the Act's laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. 21 For example, the provisions of the Act extend to States and the subdivisions thereof. The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government. 22 </s> [393 U.S. 544, 557] It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the 5 approval requirements. </s> We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action. In J. I. Case Co. v. Borak, 377 U.S. 426 (1964), we were called upon to consider 14 (a) of the Securities Exchange Act of 1934. 48 Stat. 895, 15 U.S.C. 78n (a). That section provides that it shall be "unlawful for any person . . . [to violate] such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." We held that "[w]hile this language makes no specific reference to a private right of action, among its chief purposes is `the protection of investors,' which certainly implies the availability of judicial relief where necessary to achieve that result." 377 U.S., at 432 . </s> A similar analysis is applicable here. The guarantee of 5 that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to 5, might well prove an empty promise unless the private citizen were allowed to seek judicial enforcement of the prohibition. 23 </s> II. </s> Another question involving the jurisdiction of the district courts is presented by 14 (b) of the Act. It provides that "[n]o court other than the District Court [393 U.S. 544, 558] for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this Act . . . ." 79 Stat. 445, 42 U.S.C. 1973l (b) (1964 ed., Supp. I). The appellants sought declaratory judgments that the state enactments were subject to 5 of the Act; appellees thus argue that these actions could be initiated only in the District Court for the District of Columbia. </s> Section 14 (b) must be read with the Act's other enforcement provisions. Section 12 (f) provides that the district courts shall have jurisdiction over actions brought pursuant to 12 (d) to enjoin a person from acting when "there are reasonable grounds to believe that [such person] is about to engage in any act or practice prohibited by [ 5]." 24 These 12 (f) injunctive actions are distinguishable from the actions mentioned in 14 (b). The 14 (b) injunctive action is one aimed at prohibiting enforcement of the provisions of the Voting Rights Act, and would involve an attack on the constitutionality of the Act itself. See Katzenbach v. Morgan, 384 U.S. 641 (1966). On the other hand, the 12 (f) action is aimed at prohibiting the enforcement of a state enactment that is for some reason violative of the Act. Cf. United States v. Ward, 352 F.2d 329 (C. A. 5th Cir. 1965); Perez v. Rhiddlehoover, 247 F. Supp. 65 (D.C. E. D. La. 1965). </s> A similar distinction is possible with respect to declaratory judgments. A declaratory judgment brought by the State pursuant to 5 requires an adjudication that a new enactment does not have the purpose or effect of racial discrimination. However, a declaratory judgment action brought by a private litigant does not require the Court to reach this difficult substantive issue. The only [393 U.S. 544, 559] issue is whether a particular state enactment is subject to the provisions of the Voting Rights Act, and therefore must be submitted for approval before enforcement. The difference in the magnitude of these two issues suggests that Congress did not intend that both can be decided only by the District of Columbia District Court. Indeed, the specific grant of jurisdiction to the district courts in 12 (f) indicates Congress intended to treat "coverage" questions differently from "substantive discrimination" questions. See Perez v. Rhiddlehoover, supra, at 72. </s> Moreover, as we indicated in South Carolina v. Katzenbach, supra, the power of Congress to require suits to be brought only in the District of Columbia District Court is grounded in Congress' power, under Art. III, 1, to "ordain and establish" inferior federal tribunals. We further noted Congress did not exceed constitutional bounds in imposing limitations on "litigation against the Federal Government. . . ." 383 U.S., at 332 (emphasis added). Of course, in declaratory judgment actions brought by private litigants, the United States will not be a party. This distinction further suggests interpreting 14 (b) as applying only to declaratory judgment actions brought by the State. </s> There are strong reasons for adoption of this interpretation. Requiring that declaratory judgment actions be brought in the District of Columbia places a burden on the plaintiff. The enormity of the burden, of course, will vary with the size of the plaintiff's resources. Admittedly, it would be easier for States to bring 5 actions in the district courts in their own States. However, the State has sufficient resources to prosecute the actions easily in the Nation's Capital; and, Congress has power to regulate which federal court shall hear suits against the Federal Government. On the other hand, the individual litigant will often not have sufficient resources [393 U.S. 544, 560] to maintain an action easily outside the district in which he resides, especially in cases where the individual litigant is attacking a local city or county regulation. Thus, for the individual litigant, the District of Columbia burden may be sufficient to preclude him from bringing suit. </s> We hold that the restriction of 14 (b) does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to the approval requirements of 5, and that these actions may be brought in the local district court pursuant to 28 U.S.C. 1343 (4). </s> III. </s> A final jurisdictional question remains. These actions were all heard before three-judge district courts. We have jurisdiction over an appeal brought directly from the three-judge court only if the three-judge court was properly convened. Pennsylvania Public Utility Comm'n v. Pennsylvania R. Co., 382 U.S. 281 (1965); Zemel v. Rusk, 381 U.S. 1, 5 (1965); see 28 U.S.C. 1253. Appellants initially claimed that the statutes and regulations in question violated the Fifteenth Amendment. However, by stipulation these claims were removed from the cases prior to a hearing in the District Court and the cases were submitted solely on the question of the applicability of 5. 25 We held in Swift & Co. v. Wickham, 382 U.S. 111, 127 (1965), that a three-judge court is not required under 28 U.S.C. 2281 if the state statute is attacked on the grounds that it is in conflict with a federal statute and consequently violates the Supremacy Clause. These suits involve such an attack [393 U.S. 544, 561] and, in the absence of a statute authorizing a three-judge court, would not be proper before a district court of three judges. </s> Appellants maintain that 5 authorizes a three-judge court in suits brought by private litigants to enforce the approval requirements of the section. The final sentence of 5 provides that "[a]ny action under this section shall be heard and determined by a court of three judges . . . and any appeal shall lie to the Supreme Court." 42 U.S.C. 1973c (1964 ed., Supp. I) (emphasis added). Appellees argue that this sentence refers only to the action specifically mentioned in the first sentence of 5 (i. e., declaratory judgment suits brought by the State) and does not apply to suits brought by the private litigant. </s> As we have interpreted 5, suits involving the section may be brought in at least three ways. First, of course, the State may institute a declaratory judgment action. Second, an individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by 5, but has not been subjected to the required federal scrutiny. Third, the Attorney General may bring an injunctive action to prohibit the enforcement of a new regulation because of the State's failure to obtain approval under 5. All these suits may be viewed as being brought "under" 5. The issue is whether the language "under this section" should be interpreted as authorizing a three-judge action in these suits. </s> We have long held that congressional enactments providing for the convening of three-judge courts must be strictly construed. Phillips v. United States, 312 U.S. 246 (1941). Convening a three-judge court places a burden on our federal court system, and may often result in a delay in a matter needing swift initial adjudication. See Swift & Co. v. Wickham, supra, at 128. Also, a [393 U.S. 544, 562] direct appeal may be taken from a three-judge court to this Court, thus depriving us of the wise and often crucial adjudications of the courts of appeals. Thus we have been reluctant to extend the range of cases necessitating the convening of three-judge courts. Ibid. </s> However, we have not been unaware of the legitimate reasons that prompted Congress to enact three-judge-court legislation. See Swift & Co. v. Wickham, supra, at 116-119. Notwithstanding the problems for judicial administration, Congress has determined that three-judge courts are desirable in a number of circumstances involving confrontations between state and federal power or in circumstances involving a potential for substantial interference with government administration. 26 The Voting Rights Act of 1965 is an example. Federal supervision over the enforcement of state legislation always poses difficult problems for our federal system. The problems are especially difficult when the enforcement of state enactments may be enjoined and state election procedures suspended because the State has failed to comply with a federal approval procedure. </s> In drafting 5, Congress apparently concluded that if the governing authorities of a State differ with the Attorney General of the United States concerning the purpose or effect of a change in voting procedures, it is inappropriate to have that difference resolved by a single district judge. The clash between federal and state power and the potential disruption to state government are apparent. There is no less a clash and potential for disruption when the disagreement concerns whether a state enactment is subject to 5. The result of both [393 U.S. 544, 563] suits can be an injunction prohibiting the State from enforcing its election laws. Although a suit brought by the individual citizen may not involve the same federal-state confrontation, the potential for disruption of state election procedures remains. </s> Other provisions of the Act indicate that Congress was well aware of the extraordinary effect the Act might have on federal-state relationships and the orderly operation of state government. For example, 10, which prohibits the collection of poll taxes as a prerequisite to voting, contains a provision authorizing a three-judge court when the Attorney General brings an action "against the enforcement of any requirement of the payment of a poll tax as a precondition to voting . . . ." 79 Stat. 442, 42 U.S.C. 1973h (a)-(c) (1964 ed., Supp. I). See also 42 U.S.C. 1973b (a) (1964 ed., Supp. I). </s> We conclude that in light of the extraordinary nature of the Act in general, and the unique approval requirements of 5, Congress intended that disputes involving the coverage of 5 be determined by a district court of three judges. </s> IV. </s> Finding that these cases are properly before us, we turn to a consideration of whether these state enactments are subject to the approval requirements of 5. These requirements apply to "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . ." 42 U.S.C. 1973c (1964 ed., Supp. I). The Act further provides that the term "voting" "shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing . . . or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public [393 U.S. 544, 564] or party office and propositions for which votes are received in an election." 14 (c) (1), 79 Stat. 445, 42 U.S.C. 1973l (c) (1) (1964 ed., Supp. I). See Appendix, infra. Appellees in the Mississippi cases maintain that 5 covers only those state enactments which prescribe who may register to vote. While accepting that the Act is broad enough to insure that the votes of all citizens should be cast, appellees urge that 5 does not cover state rules relating to the qualification of candidates or to state decisions as to which offices shall be elective. </s> Appellees rely on the legislative history of the Act to support their view, citing the testimony of former Assistant Attorney General Burke Marshall before a subcommittee of the House Committee on the Judiciary: </s> "Mr. CORMAN. We have not talked at all about whether we have to be concerned with not only who can vote, but who can run for public office and that has been an issue in some areas in the South in 1964. Have you given any consideration to whether or not this bill ought to address itself to the qualifications for running for public office as well as the problem of registration? </s> "Mr. MARSHALL. The problem that the bill was aimed at was the problem of registration, Congressman. If there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to deal with in the bill." 27 </s> Appellees in No. 25 also argue that 5 was not intended to apply to a change from district to at-large voting, because application of 5 would cause a conflict in the administration of reapportionment legislation. [393 U.S. 544, 565] They contend that under such a broad reading of 5, enforcement of a reapportionment plan could be enjoined for failure to meet the 5 approval requirements, even though the plan had been approved by a federal court. 28 Appellees urge that Congress could not have intended to force the States to submit a reapportionment plan to two different courts. 29 </s> We must reject a narrow construction that appellees would give to 5. The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race. 30 Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation [393 U.S. 544, 566] to the right to vote, recognizing that voting includes "all action necessary to make a vote effective." 79 Stat. 445, 42 U.S.C. 1973l (c) (1) (1964 ed., Supp. I). See Reynolds v. Sims, 377 U.S. 533, 555 (1964). We are convinced that in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the 5 approval requirements. </s> The legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way. For example, 2 of the Act, as originally drafted, included a prohibition against any "qualification or procedure." During the Senate hearings on the bill, Senator Fong expressed concern that the word "procedure" was not broad enough to cover various practices that might effectively be employed to deny citizens their right to vote. In response, the Attorney General said he had no objection to expanding the language of the section, as the word "procedure" "was intended to be all-inclusive of any kind of practice." 31 Indicative of an intention [393 U.S. 544, 567] to give the Act the broadest possible scope, Congress expanded the language in the final version of 2 to include any "voting qualifications or prerequisite to voting, or standard, practice, or procedure." 42 U.S.C. 1973 (1964 ed., Supp. I). </s> Similarly, in the House hearings, it was emphasized that 5 was to have a broad scope: </s> "Mr. KATZENBACH. The justification for [the approval requirements] is simply this: Our experience in the areas that would be covered by this bill has been such as to indicate frequently on the part of State legislatures a desire in a sense to outguess the courts of the United States or even to outguess the Congress of the United States. . . . [A]s the Chairman may recall . . . at the time of the initial school desegregation, . . . the legislature passed I [393 U.S. 544, 568] don't know how many laws in the shortest period of time. Every time the judge issued a decree, the legislature . . . passed a law to frustrate that decree. </s> "If I recollect correctly, the school board was ordered to do something and the legislature immediately took away all authority of the school boards. They withdrew all funds from them to accomplish the purposes of the act." House Hearings 60. </s> Also, the remarks of both opponents and proponents during the debate over passage of the Act demonstrate that Congress was well aware of another admonition of the Attorney General. 32 He had stated in the House hearings that two or three types of changes in state election law (such as changing from paper ballots to voting machines) could be specifically excluded from 5 without undermining the purpose of the section. He emphasized, however, that there were "precious few" changes that could be excluded "because there are an awful lot of things that could be started for purposes of evading the 15th amendment if there is the desire to do so." House Hearings 95. It is significant that Congress chose not to include even these minor exceptions in 5, thus indicating an intention that all changes, no matter how small, be subjected to 5 scrutiny. </s> In light of the mass of legislative history to the contrary, especially the Attorney General's clear indication that the section was to have a broad scope and Congress' refusal to engraft even minor exceptions, the single remark of Assistant Attorney General Burke Marshall cannot be given determinative weight. Indeed, in any case where the legislative hearings and debate are so voluminous, no single statement or excerpt of testimony can [393 U.S. 544, 569] be conclusive. 33 Also, the question of whether 5 might cause problems in the implementation of reapportionment legislation is not properly before us at this time. There is no direct conflict between our interpretation of this statute and the principles involved in the reapportionment cases. The argument that some administrative problem might arise in the future does not establish that Congress intended that 5 have a narrow scope; we leave to another case a consideration of any possible conflict. </s> The weight of the legislative history and an analysis of the basic purposes of the Act indicate that the enactment in each of these cases constitutes a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" within the meaning of 5. </s> No. 25 involves a change from district to at-large voting for county supervisors. The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 555 (1964). Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting. </s> In No. 26 an important county officer in certain counties was made appointive instead of elective. The power of a citizen's vote is affected by this amendment; after [393 U.S. 544, 570] the change, he is prohibited from electing an officer formerly subject to the approval of the voters. Such a change could be made either with or without a discriminatory purpose or effect; however, the purpose of 5 was to submit such changes to scrutiny. </s> The changes in No. 36 appear aimed at increasing the difficulty for an independent candidate to gain a position on the general election ballot. These changes might also undermine the effectiveness of voters who wish to elect independent candidates. One change involved in No. 36 deserves special note. The amendment provides that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election. This is a "procedure with respect to voting" with substantial impact. One must forgo his right to vote in his party primary if he thinks he might later wish to become an independent candidate. </s> The bulletin in No. 3 outlines new procedures for casting write-in votes. As in all these cases, we do not consider whether this change has a discriminatory purpose or effect. It is clear, however, that the new procedure with respect to voting is different from the procedure in effect when the State became subject to the Act; therefore, the enactment must meet the approval requirements of 5 in order to be enforceable. </s> In these cases, as in so many others that come before us, we are called upon to determine the applicability of a statute where the language of the statute does not make crystal clear its intended scope. In all such cases we are compelled to resort to the legislative history to determine whether, in light of the articulated purposes of the legislation, Congress intended that the statute apply to the particular cases in question. We are of the opinion that, with the exception of the statement of Assistant Attorney General Burke Marshall, the balance of legislative history (including the statements of the Attorney General and congressional action expanding the [393 U.S. 544, 571] language) indicates that 5 applies to these cases. In saying this, we of course express no view on the merit of these enactments; we also emphasize that our decision indicates no opinion concerning their constitutionality. </s> V. </s> Appellees in the Mississippi cases argue that even if these state enactments are covered by 5, they may now be enforced, since the State submitted them to the Attorney General and he has failed to object. While appellees admit that they have made no "formal" submission to the Attorney General, they argue that no formality is required. They say that once the Attorney General has become aware of the state enactment, the enactment has been "submitted" for purposes of 5. Appellees contend that the Attorney General became aware of the enactments when served with a copy of appellees' briefs in these cases. </s> We reject this argument. While the Attorney General has not required any formal procedure, we do not think the Act contemplates that a "submission" occurs when the Attorney General merely becomes aware of the legislation, no matter in what manner. Nor do we think the service of the briefs on the Attorney General constituted a "submission." A fair interpretation of the Act requires that the State in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act. </s> VI. </s> Appellants in the Mississippi cases have asked this Court to set aside the elections conducted pursuant to these enactments and order that new elections he held under the pre-amendment laws. The Solicitor General has also urged us to order new elections if the State does not promptly institute 5 approval proceedings. We decline [393 U.S. 544, 572] to take corrective action of such consequence, however. These 5 coverage questions involve complex issues of first impression - issues subject to rational disagreement. The state enactments were not so clearly subject to 5 that the appellees' failure to submit them for approval constituted deliberate defiance of the Act. Moreover, the discriminatory purpose or effect of these statutes, if any, has not been determined by any court. We give only prospective effect to our decision, bearing in mind that our judgment today does not end the matter so far as these States are concerned. They remain subject to the continuing strictures of 5 until they obtain from the United States District Court for the District of Columbia a declaratory judgment that for at least five years they have not used the "tests or devices" prohibited by 4. 42 U.S.C. 1973b (a) (1964 ed., Supp. I). </s> In No. 3 the judgment of the District Court is vacated; in Nos. 25, 26, and 36 the judgments of the District Court are reversed. All four cases are remanded to the District Courts with instructions to issue injunctions restraining the further enforcement of the enactments until such time as the States adequately demonstrate compliance with 5. </s> It is so ordered. </s> APPENDIX TO OPINION OF THE COURT. </s> Changes in the Mississippi statutes are indicated as follows: material added by amendment is italicized and material deleted by amendment is underscored. Portions of the statutes unchanged by amendment are printed in plain roman. </s> Section 5 of the Voting Rights Act of 1965: </s> "Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4 (a) [42 U.S.C. 1973b (a)] are in effect shall enact or seek [393 U.S. 544, 573] to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court." 79 Stat. 439, 42 U.S.C. 1973c (1964 ed., Supp. I). </s> The Act further provides: </s> "The terms `vote' or `voting' shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other action required by law prerequisite to voting, casting a ballot, [393 U.S. 544, 574] and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election." 79 Stat. 445, 42 U.S.C. 1973l (c) (1) (1964 ed., Supp. I). </s> Section 2870 of the Mississippi Code: </s> "Each county shall be divided into five (5) districts, with due regard to equality of population and convenience of situation for the election of members of the boards of supervisors, but the districts as now existing shall continue until changed. The qualified electors of each district shall elect, at the next general election, and every four (4) years thereafter, in their district, one (1) member of the board of supervisors; and the board, by unanimous vote of all members elected or when so ordered by a vote of the majority of the qualified electors of the districts affected voting in an election as hereinafter provided, may at any time, except as hereinafter provided, change or alter the district, the boundaries to be entered at large in the minutes of the proceedings of the board. </s> "The board, upon the petition of twenty-five per cent (25%) of the qualified electors of the county, asking that the districts of the county be changed, or altered, and setting out in such petition the changes, or alterations desired, shall call a special election for a date which shall be not less than thirty (30), nor more than sixty (60) days from the date of the presentation of the petition to the assembled board. A majority of the qualified electors of the county shall determine the issue of such election. </s> "Provided, however, that in any county in the state having a supervisors district containing more than fifty per cent (50%) of the population of the county according to the last federal census and/or more than fifty per [393 U.S. 544, 575] cent (50%) of the assessed valuation of the county, the issue of the election heretofore provided for shall be determined by a majority of those participating in said election. </s> "Provided further, however, that in any county in the state bordering on the Gulf of Mexico or Mississippi Sound and having a population in excess of eighty thousand (80,000) according to the last federal census, the issue of the election heretofore provided for shall be determined by a majority of the qualified electors of the county, and if such majority fail to vote affirmatively, no new petition shall be considered for four (4) years. Each such election shall be based upon a petition of twenty-five per cent (25%) of the qualified electors of the county, and to which petition shall be attached a map or plat defining the boundaries of each beat as proposed by said map or plat, and the election thereon shall be on such proposal. </s> "And the board, whenever a majority of the qualified electors of the county shall have voted to change or alter the existing districts to those set forth and described in the petition, shall at its first meeting thereafter establish said proposed districts by order on its minutes, to be effective on the first day of January following; and in default thereof, may be commanded to do so by writ of mandamus. </s> "When the districts are changed, by the qualified electors in an election as aforesaid, the board, of its own motion, shall not change or alter said districts within four (4) years thereafter. </s> "The board of supervisors of any county may adopt an order providing that all the qualified electors of the county shall be eligible to vote for each member of the board of supervisors but each candidate shall be a resident [393 U.S. 544, 576] of the district which he proposes to represent; said order to be adopted and published in a newspaper having general circulation in the county at least twelve (12) months prior to the next general election wherein said supervisors are elected. </s> "If twenty per cent (20%) of the qualified electors of the county shall present the board of supervisors with a petition objecting to such alternate method within sixty (60) days after the adoption and final publication of any such alternative method, then the board of supervisors shall call an election after publishing notice thereof in a newspaper published in the county once a week for at least three (3) weeks prior to such election and the question on the ballot shall be whether the entire electorate of the county shall be required to vote for the members of the board of supervisors at large, or whether the qualified electors in the said districts shall vote for the candidate in that district. If the majority of those voting vote that all the qualified electors shall be eligible to vote for candidates in each district, then thereafter all elections for members of boards of supervisors shall so be held. If not, members of the boards of supervisors shall continue to be elected by the electorate of their respective districts and the board of supervisors shall not be permitted to adopt this alternative method of electing members of boards of supervisors again until two (2) years have transpired. </s> "This act shall not be construed to affect any supervisor now holding office until the expiration and end of his present term of office." </s> Section 6271-08 of the Mississippi Code: </s> . . . . . </s> "(b) Notwithstanding the provisions of subsection (a) hereof, the office of county superintendent of education may be made appointive in any county in the manner herein provided. Upon the filing of a petition signed [393 U.S. 544, 577] by not less than twenty per cent (20%) of the qualified electors of such county, it shall be the duty of the board of supervisors of such county, within sixty (60) days after the filing of such petition, to call a special election at which there shall be submitted to the qualified electors of such county the question of whether the office of county superintendent of education of said county shall continue to be elective or shall be filled by appointment by the county board of education of said county. Provided, however, that where a Class Three county having an area in excess of eight hundred twenty-five (825) square miles has a county unit school system comprising less than an entire county, the petition shall only be signed by electors residing within the county unit school district and only electors of said district shall vote on the proposition of appointing the county superintendent of education. The order calling such special election shall designate the date upon which same shall be held and a notice of such election, signed by the clerk of the board of supervisors, shall be published once a week for at least three (3) consecutive weeks in at least one (1) newspaper published in such county. The first publication of such notice shall be made not less than twenty-one (21) days prior to the date fixed for such election and the last publication shall be made not more than seven (7) days prior to such date. If no newspaper is published in such county then such notice shall be given by publication of same for the required time in some newspaper having a general circulation in such county and, in addition, by posting a copy of such notice for at least twenty-one (21) days next preceding such election at three (3) public places in such county, one (1) of which shall be at the door of the county courthouse in each judicial district. Said election shall be held, as far as is practicable, in the same manner as other elections are held in such county and all qualified electors [393 U.S. 544, 578] of the county may vote therein. If a majority of such qualified electors who vote in such election shall vote in favor of the appointment of the county superintendent of education by the county board of education then, at the expiration of the term of the county superintendent of education then in office, the county superintendent of education of said county shall not be elected but shall thereafter be appointed by the county board of education for a term of not more than four (4) years; otherwise, said office shall remain elective. No special election shall be held in any county under the provisions of this subsection more often than once in every four (4) years, and no change from the elective to the appointive method of the selection of the county superintendent of education shall become effective except at the expiration of the term of the county superintendent of education in office at the time such election is held. </s> "In any county of the first class lying wholly within a levee district and within which there is situated a city of more than forty thousand (40,000) population according to the last decennial federal census the county superintendent of education shall hereafter be appointed by the county board of education as above provided. </s> "In any county of the second class wherein Interstate Highway 55 and State Highway 22 intersect and which is also traversed in whole or in part by U.S. Highways 49 and 51, and State Highways 16, 17 and 43 and the Natchez Trace; in any Class Four county having a population in excess of twenty-five thousand (25,000) according to the 1960 Federal census, traversed by U.S. Interstate Highway 55 and wherein Mississippi Highways 12 and 17 intersect; in any county created after 1916 through which the Yazoo River flows; in any Class Four county having a land area of six hundred ninety-five (695) square miles, bordering on the State of Alabama, wherein the Treaty of Dancing Rabbit was signed and [393 U.S. 544, 579] wherein U.S. Highway 45 and Mississippi Highway 14 intersect; in any county bordering on the Mississippi River wherein lies the campus of a land-grant institution or lands contiguous thereto owned by the institution; in any county lying within the Yazoo-Mississippi Delta Levee District, bordering upon the Mississippi River, and having a county seat with a population in excess of twenty-one thousand (21,000) according to the Federal census of 1960; in any county having a population of twenty-six thousand seven hundred fifty-nine (26,759) according to the 1960 Federal census, and wherein U.S. Highway 51 and U.S. Highway 84 and the Illinois Central Railroad and the Mississippi Central Railroad intersect; in any Class Three county wherein is partially located a national forest and wherein U.S. Highway 51 and Mississippi Highway 28 intersect, with a 1960 Federal census of twenty-seven thousand fifty-one (27,051) and a 1963 assessed valuation of $16,692,304.00; the county superintendent of education hereafter shall be appointed by the county board of education. </s> "In any county bordering on the Gulf of Mexico or Mississippi Sound, having therein a test facility operated by the National Aeronautics and Space Administration, the county superintendent of education shall be appointed by the county board of education beginning January 1, 1972." </s> . . . . . </s> Section 3260 of the Mississippi Code: </s> "The ballot shall contain the names of all candidates who have been put in nomination, not less than forty (40) days previous to the day of the election, by the primary election of any political party. There shall be printed on the ballots the names of all persons so nominated, whether the nomination be otherwise known or not, upon the written request of one or more of the candidates so nominated, or of any qualified elector who [393 U.S. 544, 580] will make oath that he was a participant in the primary election, and that the person whose name is presented by him was nominated by such primary election. No person who has voted in a primary election shall thereafter have his name placed upon the ballot as an independent candidate for any office to be determined by the general election; any independent candidate must qualify on or before the time established by statute for qualification of candidates seeking nominations in primary elections. The commissioner shall also have printed on the ballot in any general or special election the name of any candidate who, not having been nominated by a political party, shall have been requested to be a candidate for any office as an independent candidate by a petition filed on or before the statutory time with said commissioner not less than forty (40) days prior to the election, and signed by not less than the following number of qualified electors: </s> "(a) For an office elected by the state at large, not less than one thousand (1,000) ten thousand (10,000) qualified electors. </s> "(b) For an office elected by the qualified electors of a supreme court district, not less than three hundred (300) three thousand five hundred (3,500) qualified electors. </s> "(c) For an office elected by the qualified electors of a congressional district, not less than two hundred (200) two thousand (2,000) qualified electors. </s> "(d) For an office elected by the qualified electors of a circuit or chancery court district, not less than one hundred (100) one thousand (1,000) qualified electors. </s> "(e) For an office elected by the qualified electors of a county, a senatorial district, or floatorial [sic] district, a supervisors district, or a municipality having a population of one thousand (1,000) or more, not less than ten per cent (10%) of the qualified electors of said county, senatorial district, supervisors district, or municipality, [393 U.S. 544, 581] or not less than five hundred (500), fifty (50) qualified electors, whichever is the lesser. </s> "(f) For an office elected by the qualified electors of a supervisors district or a municipality having a population of less than one thousand (1,000), not less than fifteen (15) ten per cent (10%) of the qualified electors of said supervisors district or municipality. </s> "Each elector shall personally sign said petition which signature shall not be counted unless same includes his polling precinct and county. </s> "There shall be attached to each petition above provided for upon the time of filing with said commission, a certificate from the appropriate registrar or registrars showing the number of qualified electors appearing upon each such petition which the registrar shall furnish to the petitioner upon request. </s> "Unless the petition required above shall be filed not less than forty (40) days prior to the election, Unless the petition required above shall be filed not later than the time required for primary elections, the name of the person requested to be a candidate, unless nominated by a political party, shall not be placed upon the ballot. The ballot shall contain the names of each candidate for each office, and such names shall be listed under the name of the political party such candidate represents." </s> Section 24-252 of the Code of Virginia of 1950: </s> "Insertion of names on ballots. - At all elections except primary elections it shall be lawful for any voter to place on the official ballot the name of any person in his own handwriting thereon [sic] and to vote for such other person for any office for which he may desire to vote and mark the same by a check (û) or cross (X or +) mark or a line (__) immediately preceding the name inserted. Provided, however, that nothing contained in this section shall affect the operation of 24-251 of the Code of Virginia. No ballot, with a name or names placed [393 U.S. 544, 582] thereon in violation of this section, shall be counted for such person." </s> The Bulletin issued by the State Board of Elections: </s> "On August 6, 1965, the `Voting Rights Act of 1965' enacted by the Congress of the United States became effective and is now in force in Virginia. Under the provisions of this Act, any person qualified to vote in the General Election to be held November 2, 1965, who is unable to mark or cast his ballot, in whole or in part, because of a lack of literacy (in addition to any of the reasons set forth in Section 24-251 of the Virginia Code) shall, if he so requests, be aided in the preparation of his ballot by one of the judges of election selected by the voter. The judge of election shall assist the voter, upon his request, in the preparation of his ballot in accordance with the voter's instructions, and shall not in any manner divulge or indicate, by signs or otherwise, the name or names of the person or persons for whom any voter shall vote. </s> "These instructions also apply to precincts in which voting machines are used." </s> Footnotes [Footnote 1 79 Stat. 437, 42 U.S.C. 1973 et seq. (1964 ed., Supp. I). </s> [Footnote 2 In all four cases a three-judge court was convened. Nos. 25, 26, and 36 are direct appeals from the United States District Court for the Southern District of Mississippi. No. 3 is a direct appeal from the United States District Court for the Eastern District of Virginia. </s> [Footnote 3 Both States involved in these cases have been determined to be covered by the Act. 30 Fed. Reg. 9897 (August 6, 1965). </s> [Footnote 4 See H. R. Rep. No. 439, 89th Cong., 1st Sess., 10-11; S. Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 8, 12. </s> [Footnote 5 At the oral argument in the Mississippi cases, Assistant Attorney General Pollak stated that the Department of Justice had received 251 submissions from the States under 5. He further stated that the Department withheld consent in only one case, and that was where the change was contrary to a prior court decision on the same issue. He said that in two other instances the State inadvertently incorporated by reference another section of state law that contained a prohibited test or device. Transcript of Argument 63. </s> [Footnote 6 See Appendix, infra. </s> [Footnote 7 In all three cases from Mississippi the original complaint contained other grounds for relief; however, before hearing in the District Court, the parties stipulated that the only issue for decision was whether 5 applied. </s> [Footnote 8 See Appendix, infra. </s> [Footnote 9 See Appendix, infra. </s> [Footnote 10 The suit was first brought in 1966. Pending a decision on the merits, a three-judge District Court ordered appellants placed on the 1966 general election ballot. Whitley v. Johnson, 260 F. Supp. 630 (D.C. S. D. Miss. 1966). Later, other members of the class [393 U.S. 544, 552] which appellants represent were denied places on the ballot for the 1967 general election for failing to comply with the amendment's requirements. </s> [Footnote 11 No. 25, 282 F. Supp. 164, 165 (D.C. S. D. Miss. 1967); No. 26, 281 F. Supp. 918 (D.C. S. D. Miss. 1967). </s> [Footnote 12 Appellants assert that this Court has jurisdiction on direct appeal under 28 U.S.C. 1253 and 42 U.S.C. 1973c (1964 ed., Supp. I). </s> [Footnote 13 Emphasis added. See Appendix, infra. </s> [Footnote 14 79 Stat. 438, 42 U.S.C. 1973b (a) (1964 ed., Supp. I). The Act defines "test or device" as "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter . . . ." 79 Stat. 438, 42 U.S.C. 1973b (c) (1964 ed., Supp. I). </s> [Footnote 15 See Appendix, infra. </s> [Footnote 16 Allen v. State Board of Elections, 268 F. Supp. 218 (D.C. E. D. Va. 1967). The District Court ruled that the requirement that write-in votes be in the voter's own handwriting was not unconstitutional; the court further ruled that 24-252 was not suspended by 4 of the Voting Rights Act as it was not a "test or device" as defined by the Act. </s> [Footnote 17 See Boynton v. Virginia, 364 U.S. 454, 457 (1960); cf. Bell v. Maryland, 378 U.S. 226, 237 -242 (1964); Silver v. United States, 370 U.S. 717, 718 (1962). </s> [Footnote 18 Section 12 (f) of the Act, 79 Stat. 444, 42 U.S.C. 1973j (f) (1964 ed., Supp. I), provides: "The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether a person asserting rights under the provisions of this Act shall have exhausted any administrative or other remedies that may be provided by law." (Emphasis added.) </s> Appellants have argued this section necessarily implies that private parties may bring suit under the Act, relying on the language "a person." While this argument has some force, the question is not free from doubt, since the specific references throughout the other subsections of 12 are to the Attorney General. E. g., 12 (d) and 12 (e). However, we find merit in the argument that the specific references to the Attorney General were included to give the Attorney General power to bring suit to enforce what might otherwise be viewed as "private" rights. See United States v. Raines, 362 U.S. 17, 27 (1960). </s> In any event, there is certainly no specific exclusion of private actions. Section 12 (f) is at least compatible with 28 U.S.C. 1343 and might be viewed as authorizing private actions. </s> [Footnote 19 It is important to distinguish the instant cases from those brought by a State seeking a declaratory judgment that its new voting laws do not have a discriminatory purpose or effect. Cf. Apache County v. United States, 256 F. Supp. 903 (D.C. D.C. 1966). In the latter type of cases the substantive questions necessary for approval (i. e., discriminatory purpose or effect) are litigated, [393 U.S. 544, 556] while in the cases here decided the only question is whether the new legislation must be submitted for approval. </s> [Footnote 20 Appellees argue that 5 only conferred a new "remedy" on the Attorney General of the United States. They argue that it gave citizens no new "rights," rather it merely gave the Attorney General a more effective means of enforcing the guarantees of the Fifteenth Amendment. It is unnecessary to reach the question of whether the Act creates new "rights" or merely gives plaintiffs seeking to enforce existing rights new "remedies." However the Act is viewed, the inquiry remains whether the right or remedy has been conferred upon the private litigant. </s> [Footnote 21 The enforcement provisions provide that the Attorney General "may institute . . . an action" or "may . . . file . . . an application for an order." 79 Stat. 443, 42 U.S.C. 1973j (d), (e) (1964 ed., Supp. I) (emphasis added). </s> Of course the private litigant could always bring suit under the Fifteenth Amendment. But it was the inadequacy of just these suits for securing the right to vote that prompted Congress to pass the Voting Rights Act. South Carolina v. Katzenbach, supra, at 309. </s> [Footnote 22 As of January 1968, the Attorney General had brought only one action to force a State to comply with 5. United States Commission on Civil Rights, Political Participation 164-165 (1968). </s> [Footnote 23 It is significant that the United States has urged that private litigants have standing to seek declaratory and injunctive relief in these suits. Memorandum of the United States as Amicus Curiae 8, n. 7. </s> [Footnote 24 79 Stat. 444, 42 U.S.C. 1973j (d), (f) (1964 ed., Supp. I). </s> [Footnote 25 This jurisdictional question does not apply to No. 3, however. In No. 3, the three-judge court also considered and ruled on appellants' claims that the Virginia statute and regulations were in conflict with the Constitution. 268 F. Supp. 218, 220 (D.C. E. D. Va. 1967). Thus, No. 3 is properly before this Court on direct appeal. 28 U.S.C. 1253. </s> [Footnote 26 See, e. g., 42 Stat. 168, 7 U.S.C. 217 (suits to restrain enforcement of orders of the Secretary of Agriculture); 28 U.S.C. 2282 (suits to enjoin enforcement of federal statute); 63 Stat. 479, 49 U.S.C. 305 (g) (suits to review negative orders of the ICC). </s> [Footnote 27 Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, p. 74 (hereinafter House Hearings). </s> [Footnote 28 For example, appellees argue that even though a redistricting plan had been approved by a federal district court, under a broad interpretation of 5, the Attorney General might bring suit under 12 (d) (79 Stat. 444, 42 U.S.C. 1973j (d) (1964 ed., Supp. I)) seeking an injunction because the State had failed to comply with the approval requirements of 5. </s> [Footnote 29 Appellees in No. 3 also argue that 5 does not apply to the regulation in their case, because that regulation was issued in an attempt to comply with the provisions of the Voting Rights Act. They argue that if 5 applies to the Virginia regulation, covered States would be prohibited from quickly complying with the Act. We cannot accept this argument, however. A State is not exempted from the coverage of 5 merely because its legislation is passed in an attempt to comply with the provisions of the Act. To hold otherwise would mean that legislation, allegedly passed to meet the requirements of the Act, would be exempted from 5 coverage - even though it would have the effect of racial discrimination. It is precisely this situation Congress sought to avoid in passing 5. </s> [Footnote 30 "Congress knew that some of the States covered by 4 (b) of the Act had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees. Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself." South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966). </s> [Footnote 31 Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, pp. 191-192 (hereinafter Senate Hearings): </s> "Senator FONG. . . . Mr. Attorney General, turning to section 2 of the bill, which reads as follows: </s> "`No voting qualification or procedure shall be imposed or applied to deny or abridge the right to vote on account of race or color - ' there is no definition of the word `procedure' here. I am a little afraid that there may be certain practices that you may not be able to include in the word `procedure.' </s> "For example, if there should be a certain statute in a State that says the registration office shall be open only 1 day in 3, or that the hours will be so restricted, I do not think you can bring such a statute under the word `procedure.' Could you? </s> "Attorney General KATZENBACH. I would suppose that you could if it had that purpose. I had thought of the word `procedure' as [393 U.S. 544, 567] including any kind of practice of that kind if its purpose or effect was to deny or abridge the right to vote on account of race or color. </s> "Senator FONG. The way it is now written, do you think there may be a possibility that the Court would hassle over the word `procedure'? Or would, probably, it allow short registration days or restricted hours to escape this provision of the statute? </s> "Attorney General KATZENBACH. I do not believe so, Senator, although the committee might consider that. The language was used in the 1964 act on a similar matter, did use the terms `standards, practices, or procedures.' Perhaps that would be broader than simply the word `procedure' and perhaps the committee might consider making that point clear. </s> "Senator FONG. You would have no objection to expanding the word `procedure'? </s> "Attorney General KATZENBACH. No; it was intended to be all-inclusive of any kind of practice. </s> "Senator FONG. I know that in section 3 (a) you have very much in detail spelled out the words `test or device.' </s> "Attorney General KATZENBACH. Yes. </s> "Senator FONG. But you have not spelled out the word `procedure.' I think that the word `procedure' should be spelled out a little more. </s> "Attorney General KATZENBACH. I think that is a good suggestion, Senator." </s> [Footnote 32 E. g., 111 Cong. Rec. 10727 (remarks of Senator Tydings); 111 Cong. Rec. 10725 (remarks of Senator Talmadge); 111 Cong. Rec. 8303 (remarks of Senator Hart). </s> [Footnote 33 "The House and Senate Committees on the Judiciary each held hearings for nine days and received testimony from a total of 67 witnesses. More than three full days were consumed discussing the bill on the floor of the House, while the debate in the Senate covered 26 days in all." South Carolina v. Katzenbach, 383 U.S. 301, 308 -309 (1966). </s> MR. JUSTICE HARLAN, concurring in part and dissenting in part. </s> The Court's opinion seeks to do justice by granting each side half of what it requests. The majority first grants appellants all they could hope for, by adopting an overly broad construction of 5 of the Voting Rights Act. As if to compensate for its generosity, the Court then denies some of the same appellants the relief that they deserve. Section 5 is thereby reduced to a dead letter in a very substantial number of situations in which it was intended to have its full effect. 1 </s> [393 U.S. 544, 583] </s> I. </s> I shall first consider the Court's extremely broad construction of 5. It is best to begin by delineating the precise area of difference between the position the majority adopts and the one which I consider represents the better view of the statute. We are in agreement that in requiring federal review of changes in any "standard, practice, or procedure with respect to voting," Congress intended to include all state laws that changed the process by which voters were registered and had their ballots counted. The Court, however, goes further to hold that a State covered by the Act must submit for federal approval all those laws that could arguably have an impact on Negro voting power, even though the manner in which the election is conducted remains unchanged. I believe that this reading of the statute should be rejected on several grounds. It ignores the place of 5 in the larger structure of the Act; it is untrue to the statute's language; and it is unsupported by the legislative history. </s> A. </s> First, and most important, the Court's construction ignores the structure of the complex regulatory scheme [393 U.S. 544, 584] created by the Voting Rights Act. The Court's opinion assumes that 5 may be considered apart from the rest of the Act. In fact, however, the provision is clearly designed to march in lock-step with 4 - the two sections cannot be understood apart from one another. Section 4 is one of the Act's central provisions, suspending the operation of all literacy tests and similar "devices" 2 for at least five years in States whose low voter turnout indicated that these "tests" and "devices" had been used to exclude Negroes from the suffrage in the past. Section 5, moreover, reveals that it was not designed to implement new substantive policies but that it was structured to assure the effectiveness of the dramatic step that Congress had taken in 4. The federal approval procedure found in 5 only applies to those States whose literacy tests or similar "devices" have been suspended by 4. As soon as a State regains the right to apply a literacy test or similar "device" under 4, it also escapes the commands of 5. </s> The statutory scheme contains even more striking characteristics which indicate that 5's federal review procedure is ancillary to 4's substantive commands. A State may escape 5, even though it has consistently violated this provision, so long as it has complied with 4, and has suspended the operation of literacy tests and other "devices" for five years. On the other hand, no matter how faithfully a State complies with 5, it [393 U.S. 544, 585] remains subject to its commands so long as it has not consistently obeyed 4. 3 </s> As soon as it is recognized that 5 was designed solely to implement the policies of 4, it becomes apparent that the Court's decision today permits the tail to wag the dog. For the Court has now construed 5 to require a revolutionary innovation in American government that goes far beyond that which was accomplished by 4. The fourth section of the Act had the profoundly important purpose of permitting the Negro people to gain access to the voting booths of the South once and for all. But the action taken by Congress in 4 proceeded on the premise that once Negroes had gained free access to the ballot box, state governments would then be suitably responsive to their voice, and federal intervention would not be justified. In moving against "tests and devices" in 4, Congress moved only against those techniques that prevented Negroes from voting at all. Congress did not attempt to restructure state governments. The Court now reads 5, however, as vastly increasing the sphere of federal intervention beyond that contemplated by 4, despite the fact that the two provisions [393 U.S. 544, 586] were designed simply to interlock. The District Court for the District of Columbia is no longer limited to examining any new state statute that may tend to deny Negroes their right to vote, as the "tests and devices" suspended by 4 had done. The decision today also requires the special District Court to determine whether various systems of representation favor or disfavor the Negro voter - an area well beyond the scope of 4. Section 4, for example, does not apply to States and localities which have in the past permitted Negroes to vote freely, but which arguably have limited minority voting power by adopting a system in which various legislative bodies are elected on an at-large basis. And yet, in Fairley v. Patterson, No. 25, the Court holds that a statute permitting the at-large election of county boards of supervisors must be reviewed by federal authorities under 5. Moreover, it is not clear to me how a court would go about deciding whether an at-large system is to be preferred over a district system. Under one system, Negroes have some influence in the election of all officers; under the other, minority groups have more influence in the selection of fewer officers. If courts cannot intelligently compare such alternatives, it should not be readily inferred that Congress has required them to undertake the task. </s> The Court's construction of 5 is even more surprising in light of the Act's regional application. For the statute, as the Court now construes it, deals with a problem that is national in scope. I find it especially difficult to believe that Congress would single out a handful of States as requiring stricter federal supervision concerning their treatment of a problem that may well be just as serious in parts of the North as it is in the South. 4 </s> [393 U.S. 544, 587] </s> The difficulties with the Court's construction increase even further when the language of the statute is considered closely. When standing alone, the statutory formula requiring federal approval for changes in any "standard, practice, or procedure with respect to voting" can be read to support either the broad construction adopted by the majority or the one which I have advanced. But the critical formula does not stand alone. Immediately following the statute's description of the federal approval procedure, 5 proceeds to describe the type of relief an aggrieved voter may obtain if a State enforces a new statute without obtaining the consent of the appropriate federal authorities: "no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure." (Emphasis supplied.) This remedy serves to delimit the meaning of the formula in question. Congress was clearly concerned with changes in procedure with which voters could comply. But a law, like that in Fairley v. Patterson, No. 25, which permits all members of the County Board of Supervisors to run in the entire county and not in smaller districts, does not require a voter to comply with anything at all, and so does not come within the scope of the language used by Congress. While the Court's opinion entirely ignores the obvious implications of this portion of the statute, the Solicitor General's amicus brief candidly admits that this provision is flatly inconsistent with the broad reading the Government has advanced and this Court has adopted. The Government's brief simply suggests that Congress' choice of the verb "comply" was merely the result of an oversight. I cannot accept such a suggestion, however, when Congress' choice of language seems to me to be consistent with the general statutory framework as I understand it. [393 U.S. 544, 588] </s> B. </s> While the Court's opinion does not confront the factors I have just canvassed, it does attempt to justify its holding on the basis of its understanding "of the legislative history and an analysis of the basic purposes of the Act." Ante, at 569. Turning first to consider the Act's basic purposes, the Court suggests that Congress intended to adopt the concept of voting articulated in Reynolds v. Sims, 377 U.S. 533 (1964), and protect Negroes against a dilution of their voting power. See ante, at 565-566, 569. It is clear, of course, that the Court's reapportionment decisions do not apply of their own force to the problem before us. This is a statute we are interpreting, not a broad constitutional provision whose contours must be defined by this Court. The States are required to submit certain kinds of legislation for federal approval only if Congress, acting within its powers, so provided. And the fact is that Congress consciously refused to base 5 of the Voting Rights Act on its powers under the Fourteenth Amendment, upon which the reapportionment cases are grounded. The Act's preamble states that it is intended "[t]o enforce the fifteenth amendment to the Constitution of the United States, and for other purposes." When Senator Fong of Hawaii suggested that the preamble include a citation to the Fourteenth Amendment as well, the Attorney General explained that he "would have quite a strong preference not to," because "I believe that S. 1564 as drafted can be squarely based on the 15th amendment." Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, p. 193. Attorney General Katzenbach's position was restated repeatedly, 5 and any mention [393 U.S. 544, 589] of the Fourteenth Amendment is absent from this portion of the statute. 6 </s> As the reapportionment cases rest upon the Equal Protection Clause, they cannot be cited to support the claim that Congress, in passing this Act, intended to proceed against state statutes regulating the nature of the constituencies legislators could properly represent. If Congress intended, as it clearly did, to ground 5 on the Fifteenth Amendment, the leading voting case is not Reynolds v. Sims, but Gomillion v. Lightfoot, 364 U.S. 339 (1960). While that case establishes the proposition that redistricting done with the purpose of excluding Negroes from a municipality violates the Fifteenth Amendment, it also maintains the distinction between an attempt to exclude Negroes totally from the relevant constituency, and a statute that permits Negroes to vote but which uses the gerrymander to contain the impact of Negro suffrage. </s> It is unnecessary, of course, to decide whether Gomillion v. Lightfoot marks the limit of the Fifteenth Amendment. It is enough to recognize that Congress did not in any way adopt the reapportionment cases' expansive concept of voting when it enacted the Voting Rights Act of 1965. Once it is determined that Reynolds v. Sims holds no magic key to the "basic purposes" of this statute, one is obliged to determine the Act's purposes in more traditional ways. And it is here where the Court's opinion fails to convince. As I have already suggested, the Act's structure assigns to 5 a role that is a good deal more modest than the one which the majority gives it. 7 </s> [393 U.S. 544, 590] </s> The majority is left, then, relying on its understanding of the legislative history. With all deference, I find that the history the Court has garnered undermines its case, insofar as it is entitled to any weight at all. I refer not only to the unequivocal statement of Assistant Attorney General Burke Marshall, ante, at 564, which the Court concedes to be diametrically opposed to the construction it adopts. For the lengthy testimony of Attorney General Katzenbach, upon which the Court seems to rely, actually provides little more support for its position. Mr. Katzenbach, unlike his principal assistant, was never directly confronted with the question raised here, and we are left to guess as to his views. If guesses are to be made, however, surely it is important to note that though the Attorney General used many examples to illustrate the operation of 5, each of them concerned statutes that had an immediate impact on voter qualifications or which altered the manner in which the election was conducted. 8 One would imagine that if the [393 U.S. 544, 591] Attorney General believed that 5 had the remarkable sweep the majority has now given it, one of his hypotheticals would have betrayed that fact. 9 </s> C. </s> Section 5, then, should properly be read to require federal approval only of those state laws that change either voter qualifications or the manner in which elections are conducted. This does not mean, however, that [393 U.S. 544, 592] the District Courts in the four cases before us were right in unanimously concluding that the Voting Rights Act did not apply. Rather, it seems to me that only the judgment in Fairley v. Patterson, No. 25, should be affirmed, as that case involves a state statute which simply gives each county the right to elect its Board of Supervisors on an at-large basis. </s> In Whitley v. Williams, No. 36, however, Mississippi's new statute both imposes new qualifications on independent voters who wish to nominate a candidate by petition and alters the manner in which such nominations are made. 10 Since the Voting Rights Act explicitly covers "primary" elections, see 14 (c) (1), the only significant question presented is whether a petitioning procedure should be considered a "primary" within the meaning of the Act. As the nominating petition is the functional equivalent of the political primary, I can perceive no good reason why it should not be included within the ambit of the Act. </s> The statute involved in Bunton v. Patterson, No. 26, raises a somewhat more difficult problem of statutory interpretation. If one looks to its impact on the voters, the State's law making the office of school superintendent appointive enacts a "voting qualification" of the most drastic kind. While under the old regime all registered voters could cast a ballot, now none are qualified. On the other hand, one can argue that the concept of a "voting qualification" presupposes that there will be a vote. On balance, I would hold that the statute comes [393 U.S. 544, 593] within 5. Cf. Gomillion v. Lightfoot, supra. Such a holding would not, of course, disable the State from adopting an appointive system after the force of 5 has spent itself. </s> Finally, Virginia has quite obviously altered the manner in which an election is conducted when for the first time it has been obliged to issue regulations concerning the way in which illiterate voters shall be processed at the polls. Consequently, I would reverse the lower court's decision in the Allen case, No. 3. </s> II. </s> After straining to expand the scope of 5 beyond its proper limits, the majority surprisingly refuses to grant appellants in the Mississippi cases 11 the only relief that will effectively implement the Act's purposes. As the Court recognizes, ante, at 572, the Voting Rights Act only applies to the States for a limited period of time - Mississippi may free itself from 5's requirements in 1970. 12 And yet the Court affords appellants in the Mississippi cases only declaratory relief, permitting state [393 U.S. 544, 594] officials selected in violation of 5 to hold office until their four-year terms expire in 1971. 13 An election for these offices may never be held in compliance with Congress' commands. And of course, the Court's decision respecting relief does not only control these particular cases. There may have been hundreds of officials throughout the South who began serving long terms in office this November under procedures that have not been federally approved. As a result of this part of the Court's decision, the Voting Rights Act may never play the full role that Congress intended for it. </s> It seems clear to me that we should issue a conditional injunction in the Mississippi cases along the lines suggested by the Solicitor General, except of course in the Fairley case which I think should be affirmed. Unless Mississippi promptly submits its laws to either the Attorney General or the District Court for the District of Columbia, new elections under the pre-existing law should be ordered. Of course, if the laws are promptly submitted for approval, a new election should be required only if the District Court determines that the statute in question is discriminatory either in its purpose or in its effect. </s> [Footnote 1 I concur in the Court's disposition of the complex jurisdictional issues these cases present. While I consider the question whether 5 authorizes a three-judge court a close one, it is clear to me [393 U.S. 544, 583] that we would not avoid very many three-judge courts whatever we decide. I would suspect that generally a plaintiff attacking a state statute because it has not been federally approved under 5 could also make at least a substantial constitutional claim that the state statute is discriminatory in its purpose or effect. Consequently, in the usual case a three-judge court would always be convened under 28 U.S.C. 2281. Once convened, the Court would, of course, first consider the plaintiff's 5 argument in the name of avoiding a constitutional question. Therefore, it appears to me that there is no good reason to invoke the normal rule that three-judge court statutes should be construed as narrowly as possible. As the Court suggests, the more natural reading of the statute confers jurisdiction on three-judge courts even in an action brought by private parties. </s> [Footnote 2 Section 4 (c) reads: </s> "The phrase `test or device' shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." </s> [Footnote 3 The Solicitor General expressly adopts this construction of the statute in his supplemental amicus brief. In any event, the Act is clear: 4 (a) permits a State to free itself from 4 by proving to a District Court in the District of Columbia that no "test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color." (Emphasis supplied.) As already noted, see n. 2, supra, the phrase "test or device" is a term of art including a class of statutes much narrower than those included under 5. However, since 5 applies by its own terms only to "a State or political subdivision with respect to which the prohibitions set forth in section 4 (a) are in effect," a State that escapes from 4, escapes from 5 as well, even though it has not complied with that section. </s> [Footnote 4 Indeed, I would have very substantial constitutional difficulties with the statute if I were to accept such a construction. </s> [Footnote 5 See, e. g., Senate Hearings, supra, at 35, 141; Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, p. 102. </s> [Footnote 6 When, in 10 of the Act, Congress moved against the imposition of poll taxes, it expressly invoked the Fourteenth Amendment as providing an additional basis for its action in this specific area. See 10 (b). </s> [Footnote 7 The Court seeks to strengthen its case by looking to the language of one of the definitional sections of the Act. Ante, at 565-566. Section 14 (c) (1) defines the term "vote" or "voting" to "include [393 U.S. 544, 590] all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election." (Emphasis supplied.) All of the aspects of voting that are enumerated in this definition concern the procedures by which voters are processed. When the statute cautions that its enumeration of stages in the election process is not exclusive, it merely indicates that the change of any other procedure that prevents the voter from having his ballot finally counted is also included within the range of the Act's concern. Surely the Court is entirely ignoring the textual context when it seeks to read the italicized phrases as embracing all electoral laws that affect the amount of political power Negroes will derive from the exercise of the franchise, even when the way in which voters are processed remains unchanged. </s> [Footnote 8 The examples given by the Attorney General concerned changes in a State's voting age, residence, or property requirements; changes [393 U.S. 544, 591] in the frequency that registrars' offices are open; and changes from paper ballots to machines or vice versa. See House Hearings, supra, n. 5, at 60-62, 95; Senate Hearings, supra, at 191-192, 237. </s> [Footnote 9 The Court emphasizes three specific colloquies in which Mr. Katzenbach participated to support its understanding of the legislative history. In the most important one, see ante, at 566-567, n. 31, Senator Fong expressed concern that 5, which at that time merely required federal review of changes in state "procedures," would not encompass a state regulation which would radically limit the hours during which new voters could register. The Attorney General agreed that the statute should be elaborated to more clearly include such a change. Since such a law alters the manner in which voters are processed, I fail to see how this colloquy undermines my construction of the section - which clearly requires federal review in cases of the sort Mr. Katzenbach and Senator Fong were discussing. Similarly, a second extract highlighted by the Court, ante, at 567-568, is one in which the Attorney General emphasizes that 5 is intended to prevent the States from evading the requirements of 4 - a point I believe to count strongly in favor of the interpretation I deem the correct one. Finally, it is quite true that the Attorney General opposed carving out exceptions from 5 that would permit the State to switch from paper ballots to voting machines without federal approval. See ante, at 568. But this fact hardly indicates that he or anyone else was of the opinion that the section required review of statutes that did not concern themselves with voting procedures. In fact, on the one occasion that Mr. Katzenbach discussed the reapportionment cases in connection with 5, he indicated no awareness whatever that 5 could be construed to apply to cases involving laws that change the voting power of various groups. See House Hearings, supra, at 93-94. </s> [Footnote 10 The statute requires supporters of a candidate to write their own names on the nominating petition, together with their polling district. Moreover, petitions must be filed by an earlier date and must contain many more signatures. The Act also imposes a "voting qualification" on those who wish to vote in a party primary, by providing that they may not subsequently compete with the primary victor by running as an independent candidate. </s> [Footnote 11 In the Allen case, coming from Virginia, the term of the Congressman who gained his seat under procedures that have not been approved under 5 has already expired. Consequently, only a grant of declaratory relief is appropriate in this case, as the appellants themselves recognize. </s> [Footnote 12 Since the Voting Rights Act became effective in Mississippi in August 1965, the State will be able to escape the requirements of 5 in 1970 by proving that it has not imposed a "test or device" in violation of 4 for a five-year period. See text, at n. 3, supra. Section 5 will only continue to apply after 1970 if Mississippi is found to have continued imposing "tests or devices" after 1965. The Court's decision today, however, does not consider whether any of the statutes involved in these cases impose a "test" or "device" within the meaning of 4, see n. 2, supra. It simply holds that the statutes fall into the much broader class of laws that modify a "standard, practice, or procedure with respect to voting" under 5. </s> [Footnote 13 The state senator, state representative, county supervisor, justice of the peace, and constable involved in Whitley v. Williams, No. 36, were all elected for four-year terms ending in 1971. See Mississippi Code 3238 (1942). Similarly, the affected county superintendents of education in Bunton v. Patterson, No. 26, were appointed to four-year terms, expiring in 1971. </s> While I would affirm in Fairley v. Patterson, No. 25, the incumbents in that case also will serve until 1971. </s> MR. JUSTICE MARSHALL, whom MR. JUSTICE DOUGLAS joins, concurring and dissenting. </s> I join Parts I through V of the Court's opinion. However, largely for the reasons stated in Part II of my [393 U.S. 544, 595] Brother HARLAN's opinion, I believe the relief suggested by the Solicitor General should be ordered in the Mississippi cases. Accordingly, I dissent from Part VI of the Court's opinion. </s> MR. JUSTICE BLACK, dissenting. </s> Assuming the validity of the Voting Rights Act of 1965, as the Court does, I would agree with its careful interpretation of the Act, and would further agree with its holding as to jurisdiction and with its disposition of the four cases now before us. But I am still of the opinion that for reasons stated in my separate opinion in South Carolina v. Katzenbach, 383 U.S. 301, 355 -362 (1966), a part of 5 violates the United States Constitution. Section 5 provides that several Southern States cannot effectively amend either their constitutions or laws relating to voting without persuading the United States Attorney General or the United States District Court for the District of Columbia that the proposed changes in state laws do not have the purpose and will not have the effect of denying to citizens the right to vote on account of race or color. This is reminiscent of old Reconstruction days when soldiers controlled the South and when those States were compelled to make reports to military commanders of what they did. The Southern States were at that time deprived of their right to pass laws on the premise that they were not then a part of the Union and therefore could be treated with all the harshness meted out to conquered provinces. The constitutionality of that doctrine was certainly not clear at that time. And whether the doctrine was constitutional or not, I had thought that the whole Nation had long since repented of the application of this "conquered province" concept, even as to the time immediately following the bitter Civil War. I doubt that any of the 13 Colonies would have agreed to our Constitution [393 U.S. 544, 596] if they had dreamed that the time might come when they would have to go to a United States Attorney General or a District of Columbia court with hat in hand begging for permission to change their laws. Still less would any of these Colonies have been willing to agree to a Constitution that gave the Federal Government power to force one Colony to go through such an onerous procedure while all the other former Colonies, now supposedly its sister States, were allowed to retain their full sovereignty. While Marbury v. Madison, 1 Cranch 137 (1803), held that courts can pass on the constitutionality of state laws already enacted, it certainly did not decide to permit federal courts or federal executive officers to hold up the passage of state laws until federal courts or federal agencies in Washington could pass on them. Proposals to give judges a part in enacting or vetoing legislation before it passed were made and rejected in the Constitutional Convention; another proposal was made and rejected to permit the Chief Justice of this Court "from time to time [to] recommend such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union . . . ." See my dissenting opinion in Griswold v. Connecticut, 381 U.S. 479, 515 , n. 6 (1965). </s> It seems to me it would be wise for us to pause now and then and reflect on the fact that the separate Colonies were passing laws in their legislative bodies before they themselves created this Union, that history emphatically proves that in creating the Union the Colonies intended to retain their original independent power to pass laws, and that no justification can properly be found in the Constitution they created or in any amendment to it for degrading these States to the extent that [393 U.S. 544, 597] they cannot even initiate an amendment to their constitutions or their laws without first asking the permission of a federal court in the District of Columbia or a United States governmental agency. I would hold 5 of the 1965 Voting Rights Act unconstitutional insofar as it commands certain selected States to leave their laws in any field unchanged until they get the consent of federal agencies to pass new ones. </s> [393 U.S. 544, 1]

United States Supreme Court LEE v. INTERNATIONAL SOC. FOR KRISHNA CONSCIOUSNESS(1992) No. 91-339 Argued: March 22, 1992Decided: June 26, 1992 </s> Held: </s> The judgment of the Court of Appeal, which held that a ban on distribution of literature in Port Authority airport terminals is invalid under the First Amendment, is affirmed for the reasons expressed in International Soc. for Krishna Consciousness, Inc. v. Lee, ante, p. 672, in the opinions of JUSTICE O'CONNOR, ante, at 685, JUSTICE KENNEDY, ante, at 693, and JUSTICE SOUTER, ante, at 709. </s> 925 F.2d 576, affirmed in part. </s> Arthur P. Berg argued the cause for petitioner. With him on the brief were Philip Maurer, Arnold D. Kolikoff, and Milton H. Pachter. </s> Barry A. Fisher argued the cause for respondents. With him on the briefs were David Grosz, Robert C. Moest, David M. Liberman, Jay Alan Sekulow, and Jeremiah S. Gutman. * </s> [Footnote * Briefs of amici curiae were filed for the Airports Association Council International-North America by Michael M. Conway; for the American Civil Liberties Union et al. by Steven R. Shapiro, John A. Powell, and Arthur N. Eisenberg; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon, Walter Kamiat, and Laurence Gold; for the American Jewish Congress et al. by Bradley P. Jacob and Edward McGlynn Gaffney, Jr.; for the American Newspaper Publishers Association et al. by Robert C. Bernius, Alice Neff Lucan, Rene P. Milam, Richard A. Bernstein, Barbara Wartelle Wall, John C. Fontaine, Cristina L. Mendoza, George Freeman, and Carol D. Malamed; for the American Tract Society et al. by James Matthew Henderson, Sr., Mark N. Troobnick, Thomas Patrick Monaghan, and Charles E. Rice; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; for the Free Congress Foundation by Wendell R. Bird and David J. Myers; for Multimedia Newspaper Co. et al. by Carl L. Muller and Wallace K. Lightsey; for Project Vote et al. by Robert Plotkin and Elliot M. Minceberg; and for the National Institute of Municipal Law Officers [505 U.S. 830, 831] by Benjamin L. Brown, Analeslie Muncy, Robert J. Alfton, Frank B. Gummey III, Frederick S. Dean, Neal M. Janey, Victor J. Kaleta, Robert J. Mangler, Neal E. McNeill, Robert J. Watson, and Iris J. Jones. [505 U.S. 830, 831] </s> PER CURIAM. </s> For the reasons expressed in the opinions of JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER, ante, p. 685 (O'CONNOR, J., concurring in No. 91-155 and concurring in judgment in No. 91-339), ante, p. 693 (KENNEDY, J., concurring in judgments), and ante, p. 709 (SOUTER, J., concurring in judgment in No. 91-339 and dissenting in No. 91-155), the judgment of the Court of Appeals holding that the ban on distribution of literature in the Port Authority airport terminals is invalid under the First Amendment is </s> Affirmed. </s> CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE SCALIA and JUSTICE THOMAS join, dissenting. </s> Leafletting presents risks of congestion similar to those posed by solicitation. It presents, in addition, some risks unique to leafletting. And of ocurse, as with solicitation, these risks must be evaluated against a backdrop of the substantial congestion problem facing the Port Authority and with an eye to the cumulative impact that will result if all groups are permitted terminal access. Viewed in this light, I conclude that the distribution ban, no less than the solicitation ban, is reasonable. I therefore dissent from the Court's holding striking the distribution ban. </s> I will not trouuble to repeat in detail all that has been stated in No. 91-155, International Soc. for Krishna Consciousness, Inc. v. Lee, ante, at 683-685, describing the risks and burdens flowing to travelers and the Port Authority from permittingg solicitation in airport terminals. Suffice it to say that the risks and burdens posed by leaflettin are quite similar to those posed by solicitation. The weary, harried, or hurried traveler may have no less desire and need [505 U.S. 830, 832] to avoid the delays generated by having literature foisted upon him than he does to avoid delays from a financial solicitation. And while a busy passenger perhaps may succeed in fending off a leafletter with minimal disruption to himself by agreeing simply to take the proffered material, this does not completely ameliorate the dangers of congestion flowing from such leafletting. Others may choose not simply to accept the material, but also to stop and engage the leafletter in debate, obstructing those who follow. Moreover, those who accept material may often simply drop it on the floor once out of the leafletter's range, creating an eyesore, a safety hazard, and additional cleanup work for airport staff. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 816 -817 (1984) (aesthetic interests may provide basis for restricting speech); Sloane Supplemental Affidavit § 10, App. 514 (noting increased maintenance problems that result from solicitation and distribution). </s> In addition, a differential ban that permits leafletting but prohibits solicitation, while giving the impression of permitting the Port Authority at least half of what it seeks, may in fact prove for the Port Authority to be a much more Pyrrhic victory. Under the regime that is today sustained, the Port Authority is obliged to permit leafletting. But monitoring leafletting activity in order to ensure that it is only leafletting that occurs, and not also soliciting, may prove little less burdensome than the monitoring that would be required if solicitation were permitted. At a minimum, therefore, I think it remains open whether, at some future date, the Port Authority may be able to reimpose a complete ban, having developed evidence that enforcement of a differential ban is overly burdensome. Until now it has had no reason or means to do this, since it is only today that such a requirement has been announced. </s> For the foregoing reasons, and for the reasons stated in the opinion in No. 91-155, ante, p. 672, I respectfully dissent. </s> [505 U.S. 830, 833]

United States Supreme Court TRAFFIX DEVICES, INC. v. MARKETING DISPLAYS, INC.(2001) No. 99-1571 Argued: November 29, 2000Decided: March 20, 2001 </s> Respondent, Marketing Displays, Inc. (MDI), holds now-expired utility patents for a "dual-spring design" mechanism that keeps temporary road and other outdoor signs upright in adverse wind conditions. MDI claims that its sign stands were recognizable to buyers and users because the patented design was visible near the sign stand's base. After the patents expired and petitioner TrafFix Devices, Inc., began marketing sign stands with a dual-spring mechanism copied from MDI's design, MDI brought suit under the Trademark Act of 1964 for, inter alia, trade dress infringement. The District Court granted TrafFix's motion for summary judgment, holding that no reasonable trier of fact could determine that MDI had established secondary meaning in its alleged trade dress, i.e., consumers did not associate the dual-spring design's look with MDI; and, as an independent reason, that there could be no trade dress protection for the design because it was functional. The Sixth Circuit reversed. Among other things, it suggested that the District Court committed legal error by looking only to the dual-spring design when evaluating MDI's trade dress because a competitor had to find some way to hide the design or otherwise set it apart from MDI's; explained, relying on Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165, that exclusive use of a feature must put competitors at a significant non-reputation-related disadvantage before trade dress protection is denied on functionality grounds; and noted a split among the Circuits on the issue whether an expired utility patent forecloses the possibility of trade dress protection in the product's design. </s> Held:Because MDI's dual-spring design is a functional feature for which there is no trade dress protection, MDI's claim is barred. Pp. 4-11. </s> (a)Trade dress can be protected under federal law, but the person asserting such protection in an infringement action must prove that the matter sought to be protected is not functional, 15 U.S.C. §1125(a)(3). Trade dress protection must subsist with the recognition that in many instances there is no prohibition against copying goods and products. An expired utility patent has vital significance in resolving a trade dress claim, for a utility patent is strong evidence that the features therein claimed are functional. The central advance claimed in the expired utility patents here is the dual-spring design, which is an essential feature of the trade dress MDI now seeks to protect. However, MDI did not, and cannot, carry the burden of overcoming the strong evidentiary inference of functionality based on the disclosure of the dual-spring design in the claims of the expired patents. The springs are necessary to the device's operation, and they would have been covered by the claims of the expired patents even though they look different from the embodiment revealed in those patents, see Sarkisian v. Winn-Proof Corp., 697 F.2d 1313. The rationale for the rule that the disclosure of a feature in a utility patent's claims constitutes strong evidence of functionality is well illustrated in this case. The design serves the important purpose of keeping the sign upright in heavy wind conditions, and statements in the expired patent applications indicate that it does so in a unique and useful manner and at a cost advantage over alternative designs. Pp. 4-8. </s> (b)In reversing the summary judgment against MDI, the Sixth Circuit gave insufficient weight to the importance of the expired utility patents, and their evidentiary significance, in establishing the device's functionality. The error was likely caused by its misinterpretation of trade dress principles in other respects. "`In general terms a product feature is functional,' and cannot serve as a trademark, `if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.'" Qualitex, supra, at 165 (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 850, n. 10). This Court has expanded on that meaning, observing that a functional feature is one "the exclusive use of [which] would put competitors at a significant non-reputation-related disadvantage," Qualitex, supra, at 165, but that language does not mean that competitive necessity is a necessary test for functionality. Where the design is functional under the Inwood formulation there is no need to proceed further to consider competitive necessity. This Court has allowed trade dress protection to inherently distinctive product features on the assumption that they were not functional. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 774. Here, however, beyond serving the purpose of informing consumers that the sign stands are made by MDI, the design provides a unique and useful mechanism to resist the wind's force. Functionality having been established, whether the design has acquired secondary meaning need not be considered. Nor is it necessary to speculate about other design possibilities. Finally, this Court need not resolve here the question whether the Patent Clause of the Constitution, of its own force, prohibits the holder of an expired utility patent from claiming trade dress protection. Pp. 8-11. </s> 200 F.3d 929, reversed and remanded. </s> Kennedy, J., delivered the opinion for a unanimous Court. </s> TRAFFIX DEVICES, INC., PETITIONER v. MARKETING DISPLAYS, INC. </s> on writ of certiorari to the united states court of appeals for the sixth circuit </s> [March 20, 2001] </s> Justice Kennedy delivered the opinion of the Court. </s> Temporary road signs with warnings like "Road Work Ahead" or "Left Shoulder Closed" must withstand strong gusts of wind. An inventor named Robert Sarkisian obtained two utility patents for a mechanism built upon two springs (the dual-spring design) to keep these and other outdoor signs upright despite adverse wind conditions. The holder of the now-expired Sarkisian patents, respondent Marketing Displays, Inc. (MDI), established a successful business in the manufacture and sale of sign stands incorporating the patented feature. MDI's stands for road signs were recognizable to buyers and users (it says) because the dual-spring design was visible near the base of the sign. </s> This litigation followed after the patents expired and a competitor, TrafFix Devices, Inc., sold sign stands with a visible spring mechanism that looked like MDI's. MDI and TrafFix products looked alike because they were. When TrafFix started in business, it sent an MDI product abroad to have it reverse engineered, that is to say copied. Complicating matters, TrafFix marketed its sign stands under a name similar to MDI's. MDI used the name "WindMaster," while TrafFix, its new competitor, used "WindBuster." </s> MDI brought suit under the Trademark Act of 1964 (Lanham Act), 60 Stat. 427, as amended, 15 U.S.C. §1051 et seq., against TrafFix for trademark infringement (based on the similar names), trade dress infringement (based on the copied dual-spring design) and unfair competition. TrafFix counterclaimed on antitrust theories. After the United States District Court for the Eastern District of Michigan considered cross-motions for summary judgment, MDI prevailed on its trademark claim for the confusing similarity of names and was held not liable on the antitrust counterclaim; and those two rulings, affirmed by the Court of Appeals, are not before us. </s> I </s> We are concerned with the trade dress question. The District Court ruled against MDI on its trade dress claim. 971 F.Supp. 262 (ED Mich. 1997). After determining that the one element of MDI's trade dress at issue was the dual-spring design, id., at 265, it held that "no reasonable trier of fact could determine that MDI has established secondary meaning" in its alleged trade dress, id., at 269. In other words, consumers did not associate the look of the dual-spring design with MDI. As a second, independent reason to grant summary judgment in favor of TrafFix, the District Court determined the dual-spring design was functional. On this rationale secondary meaning is irrelevant because there can be no trade dress protection in any event. In ruling on the functional aspect of the design, the District Court noted that Sixth Circuit precedent indicated that the burden was on MDI to prove that its trade dress was nonfunctional, and not on TrafFix to show that it was functional (a rule since adopted by Congress, see 15 U.S.C. §1125(a)(3) (1994 ed., Supp. V)), and then went on </s> to consider MDI's arguments that the dual-spring design was subject to trade dress protection. Finding none of MDI's contentions persuasive, the District Court concluded MDI had not "proffered sufficient evidence which would enable a reasonable trier of fact to find that MDI's vertical dual-spring design is non-functional." Id., at 276. Summary judgment was entered against MDI on its trade dress claims. </s> The Court of Appeals for the Sixth Circuit reversed the trade dress ruling. 200 F.3d 929 (1999). The Court of Appeals held the District Court had erred in ruling MDI failed to show a genuine issue of material fact regarding whether it had secondary meaning in its alleged trade dress, id., at 938, and had erred further in determining that MDI could not prevail in any event because the alleged trade dress was in fact a functional product configuration, id., at 940. The Court of Appeals suggested the District Court committed legal error by looking only to the dual-spring design when evaluating MDI's trade dress. Basic to its reasoning was the Court of Appeals' observation that it took "little imagination to conceive of a hidden dual-spring mechanism or a tri or quad-spring mechanism that might avoid infringing [MDI's] trade dress." Ibid. The Court of Appeals explained that "[i]f TrafFix or another competitor chooses to use [MDI's] dual-spring design, then it will have to find some other way to set its sign apart to avoid infringing [MDI's] trade dress." Ibid. It was not sufficient, according to the Court of Appeals, that allowing exclusive use of a particular feature such as the dual-spring design in the guise of trade dress would "hinde[r] competition somewhat." Rather, "[e]xclusive use of a feature must `put competitors at a significant non-reputation-related disadvantage' before trade dress protection is denied on functionality grounds." Ibid. (quoting Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165 (1995)). In its criticism of the District Court's ruling on the trade dress question, the Court of Appeals took note of a split among Courts of Appeals in various other Circuits on the issue whether the existence of an expired utility patent forecloses the possibility of the patentee's claiming trade dress protection in the product's design. 200 F.3d, at 939. Compare Sunbeam Products, Inc. v. West Bend Co., 123 F.3d 246 (CA5 1997) (holding that trade dress protection is not foreclosed), Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 277 (CA7 1998) (same), and Midwest Industries, Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (CA Fed 1999) (same), with Vornado Air Circulation Systems, Inc. v. Duracraft Corp., 58 F.3d 1498, 1500 (CA10 1995) ("Where a product configuration is a significant inventive component of an invention covered by a utility patent . . . it cannot receive trade dress protection"). To resolve the conflict, we granted certiorari. 530 U.S. 1260 (2000). </s> II </s> It is well established that trade dress can be protected under federal law. The design or packaging of a product may acquire a distinctiveness which serves to identify the product with its manufacturer or source; and a design or package which acquires this secondary meaning, assuming other requisites are met, is a trade dress which may not be used in a manner likely to cause confusion as to the origin, sponsorship, or approval of the goods. In these respects protection for trade dress exists to promote competition. As we explained just last Term, see Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000), various Courts of Appeals have allowed claims of trade dress infringement relying on the general provision of the Lanham Act which provides a cause of action to one who is injured when a person uses "any word, term name, symbol, or device, or any combination thereof . . . which is </s> likely to cause confusion . . . as to the origin, sponsorship, or approval of his or her goods." 15 U.S.C. §1125(a)(1)(A). Congress confirmed this statutory protection for trade dress by amending the Lanham Act to recognize the concept. Title 15 U.S.C. §1125(a)(3) (1994 ed., Supp. V) provides: "In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional." This burden of proof gives force to the well-established rule that trade dress protection may not be claimed for product features that are functional. Qualitex, supra, at 164-165; Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 775 (1992). And in Wal-Mart, supra, we were careful to caution against misuse or over-extension of trade dress. We noted that "product design almost invariably serves purposes other than source identification." Id., at 213. </s> Trade dress protection must subsist with the recognition that in many instances there is no prohibition against copying goods and products. In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying. As the Court has explained, copying is not always discouraged or disfavored by the laws which preserve our competitive economy. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 160 (1989). Allowing competitors to copy will have salutary effects in many instances. "Reverse engineering of chemical and mechanical articles in the public domain often leads to significant advances in technology." Ibid. </s> The principal question in this case is the effect of an expired patent on a claim of trade dress infringement. A prior patent, we conclude, has vital significance in resolving the trade dress claim. A utility patent is strong evidence that the features therein claimed are functional. If trade dress protection is sought for those features the strong evidence of functionality based on the previous patent adds great weight to the statutory presumption that features are deemed functional until proved otherwise by the party seeking trade dress protection. Where the expired patent claimed the features in question, one who seeks to establish trade dress protection must carry the heavy burden of showing that the feature is not functional, for instance by showing that it is merely an ornamental, incidental, or arbitrary aspect of the device. </s> In the case before us, the central advance claimed in the expired utility patents (the Sarkisian patents) is the dual-spring design; and the dual-spring design is the essential feature of the trade dress MDI now seeks to establish and to protect. The rule we have explained bars the trade dress claim, for MDI did not, and cannot, carry the burden of overcoming the strong evidentiary inference of functionality based on the disclosure of the dual-spring design in the claims of the expired patents. </s> The dual springs shown in the Sarkisian patents were well apart (at either end of a frame for holding a rectangular sign when one full side is the base) while the dual springs at issue here are close together (in a frame designed to hold a sign by one of its corners). As the District Court recognized, this makes little difference. The point is that the springs are necessary to the operation of the device. The fact that the springs in this very different-looking device fall within the claims of the patents is illustrated by MDI's own position in earlier litigation. In the late 1970's, MDI engaged in a long-running intellectual property battle with a company known as Winn-Proof. Although the precise claims of the Sarkisian patents cover sign stands with springs "spaced apart," U.S. Patent No. 3,646,696, col. 4; U.S. Patent No. 3,662,482, col. 4, the Winn-Proof sign stands (with springs much like the sign stands at issue here) were found to infringe the patents by the United States District Court for the District of Oregon, and the Court of Appeals for the Ninth Circuit affirmed the judgment. Sarkisian v. Winn-Proof Corp., 697 F.2d 1313 (1983). Although the Winn-Proof traffic sign stand (with dual springs close together) did not appear, then, to infringe the literal terms of the patent claims (which called for "spaced apart" springs), the Winn-Proof sign stand was found to infringe the patents under the doctrine of equivalents, which allows a finding of patent infringement even when the accused product does not fall within the literal terms of the claims. Id., at 1321-1322; see generally Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997). In light of this past ruling--a ruling procured at MDI's own insistence--it must be concluded the products here at issue would have been covered by the claims of the expired patents. </s> The rationale for the rule that the disclosure of a feature in the claims of a utility patent constitutes strong evidence of functionality is well illustrated in this case. The dual-spring design serves the important purpose of keeping the sign upright even in heavy wind conditions; and, as confirmed by the statements in the expired patents, it does so in a unique and useful manner. As the specification of one of the patents recites, prior art "devices, in practice, will topple under the force of a strong wind." U.S. Patent No. 3,662,482, col. 1. The dual-spring design allows sign stands to resist toppling in strong winds. Using a dual-spring design rather than a single spring achieves important operational advantages. For example, the specifications of the patents note that the "use of a pair of springs . . . as opposed to the use of a single spring to support the frame structure prevents canting or twisting of the sign around a vertical axis," and that, if not prevented, twisting "may cause damage to the spring structure and may result in tipping of the device." U.S. Patent No. 3,646,696, col. 3. In the course of patent prosecution, it was said that "[t]he use of a pair of spring connections as opposed to a single spring connection. . . forms an important part of this combination" because it "forc[es] the sign frame to tip along the longitudinal axis of the elongated ground-engaging members." App. 218. The dual-spring design affects the cost of the device as well; it was acknowledged that the device "could use three springs but this would unnecessarily increase the cost of the device." App. 217.These statements made in the patent applications and in the course of procuring the patents demonstrate the functionality of the design. MDI does not assert that any of these representations are mistaken or inaccurate, and this is further strong evidence of the functionality of the dual-spring design. </s> III </s> In finding for MDI on the trade dress issue the Court of Appeals gave insufficient recognition to the importance of the expired utility patents, and their evidentiary significance, in establishing the functionality of the device. The error likely was caused by its misinterpretation of trade dress principles in other respects. As we have noted, even if there has been no previous utility patent the party asserting trade dress has the burden to establish the nonfunctionality of alleged trade dress features. MDI could not meet this burden. Discussing trademarks, we have said "`[i]n general terms, a product feature is functional,' and cannot serve as a trademark, `if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.'" Qualitex, 456 U.S. 844, 850, n. 10 (1982)). Expanding upon the meaning of this phrase, we have observed that a functional feature is one the "exclusive use of [which] would put competitors at a significant non-reputation-related disadvantage." 514 U.S., at 165. The Court of Appeals in the instant case seemed to interpret this language to mean that a </s> necessary test for functionality is "whether the particular product configuration is a competitive necessity." 200 F.3d, at 940. See also Vornado, 58 F.3d, at 1507 ("Functionality, by contrast, has been defined both by our circuit, and more recently by the Supreme Court, in terms of competitive need"). This was incorrect as a comprehensive definition. As explained in Qualitex, supra, and Inwood, supra, a feature is also functional when it is essential to the use or purpose of the device or when it affects the cost or quality of the device. The Qualitex decision did not purport to displace this traditional rule. Instead, it quoted the rule as Inwood had set it forth. It is proper to inquire into a "significant non-reputation-related disadvantage" in cases of aesthetic functionality, the question involved in Qualitex. Where the design is functional under the Inwood formulation there is no need to proceed further to consider if there is a competitive necessity for the feature. In Qualitex, by contrast, aesthetic functionality was the central question, there having been no indication that the green-gold color of the laundry press pad had any bearing on the use or purpose of the product or its cost or quality. </s> The Court has allowed trade dress protection to certain product features that are inherently distinctive. Two Pesos, 505 U.S., at 774. In Two Pesos, however, the Court at the outset made the explicit analytic assumption that the trade dress features in question (decorations and other features to evoke a Mexican theme in a restaurant) were not functional. Id., at 767, n.6. The trade dress in those cases did not bar competitors from copying functional product design features. In the instant case, beyond serving the purpose of informing consumers that the sign stands are made by MDI (assuming it does so), the dual-spring design provides a unique and useful mechanism to resist the force of the wind. Functionality having been established, whether MDI's dual-spring design has acquired secondary meaning need not be considered. </s> There is no need, furthermore, to engage, as did the Court of Appeals, in speculation about other design possibilities, such as using three or four springs which might serve the same purpose. 200 F.3d, at 940. Here, the functionality of the spring design means that competitors need not explore whether other spring juxtapositions might be used. The dual-spring design is not an arbitrary flourish in the configuration of MDI's product; it isthe reason the device works. Other designs need not be attempted. </s> Because the dual-spring design is functional, it is unnecessary for competitors to explore designs to hide the springs, say by using a box or framework to cover them, as suggested by the Court of Appeals. Ibid. The dual-spring design assures the user the device will work. If buyers are assured the product serves its purpose by seeing the operative mechanism that in itself serves an important market need. It would be at cross-purposes to those objectives, and something of a paradox, were we to require the manufacturer to conceal the very item the user seeks. </s> In a case where a manufacturer seeks to protect arbitrary, incidental, or ornamental aspects of features of a product found in the patent claims, such as arbitrary curves in the legs or an ornamental pattern painted on the springs, a different result might obtain. There the manufacturer could perhaps prove that those aspects do not serve a purpose within the terms of the utility patent. The inquiry into whether such features, asserted to be trade dress, are functional by reason of their inclusion in the claims of an expired utility patent could be aided by going beyond the claims and examining the patent and its prosecution history to see if the feature in question is shown as a useful part of the invention. No such claim is made here, however. MDI in essence seeks protection for the dual-spring design alone. The asserted trade dress consists simply of the dual-spring design, four legs, a base, an upright, and a sign. MDI has pointed to nothing arbitrary about the components of its device or the way they are assembled. The Lanham Act does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity. The Lanham Act, furthermore, does not protect trade dress in a functional design simply because an investment has been made to encourage the public to associate a particular functional feature with a single manufacturer or seller. The Court of Appeals erred in viewing MDI as possessing the right to exclude competitors from using a design identical to MDI's and to require those competitors to adopt a different design simply to avoid copying it. MDI cannot gain the exclusive right to produce sign stands using the dual-spring design by asserting that consumers associate it with the look of the invention itself. Whether a utility patent has expired or there has been no utility patent at all, a product design which has a particular appearance may be functional because it is "essential to the use or purpose of the article" or "affects the cost or quality of the article." Inwood, 456 U.S., at 850, n.10. </s> TrafFix and some of its amici argue that the Patent Clause of the Constitution, Art.I, §8, cl.8, of its own force, prohibits the holder of an expired utility patent from claiming trade dress protection. Brief for Petitioner 33-36; Brief for Panduit Corp. as Amicus Curiae 3; Brief for Malla Pollack as Amicus Curiae 2. We need not resolve this question. If, despite the rule that functional features may not be the subject of trade dress protection, a case arises in which trade dress becomes the practical equivalent of an expired utility patent, that will be time enough to consider the matter. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered.

United States Supreme Court CHICAGO, M., ST. P. & P. R. CO. v. ILLINOIS(1958) No. 12 Argued: November 12, 1957Decided: January 13, 1958 </s> After the Illinois Commerce Commission had denied a railroad's request for authority to increase intrastate passenger fares for its Chicago suburban commuter service, claimed as necessary to enable it to operate such service without an out-of-pocket loss, the railroad petitioned the Interstate Commerce Commission for relief under 49 U.S.C. 13 (4). The latter Commission found that the railroad's revenues from this particular service fell short of meeting the out-of-pocket cost of such service, concluded that this caused undue discrimination against interstate commerce, and prescribed higher intrastate fares to produce enough revenue to eliminate the out-of-pocket loss and to allow $77,000 annually as a contribution to indirect costs and taxes. It also increased interstate fares to two points in Wisconsin to conform to the increased intrastate fares. The District Court set aside the Commission's order, enjoined its enforcement, and remanded the case to the Commission for further proceedings. Held: The judgment is modified and affirmed. Pp. 301-312. </s> 1. The Commission's findings were not adequate to support its order under 13 (4). Pp. 306-309. </s> (a) The deficit from this single commuter operation cannot fairly be adjudged to work an undue discrimination against the railroad's interstate operations without findings which take into account the carrier's other intrastate revenues from Illinois freight and passenger traffic. Pp. 306-309. </s> (b) The portion of the prescribed increases designed to produce $77,000 annually as a contribution to indirect costs and taxes is not based on adequate findings. P. 309, n. 8. </s> 2. The Interstate Commerce Commission did not err in considering evidence which was not presented by the railroad to the State Commission. Pp. 310-311. [355 U.S. 300, 301] </s> 3. The District Court did not err in setting aside so much of the Commission's order as authorized an increase in the interstate fares to the two Wisconsin points, since those rates are so interwoven with and so closely bound to the intrastate rates that a proper disposition of this case requires that the Commission reconsider them as part of its reconsideration of the entire Chicago suburban commuter service. Pp. 311-312. </s> 146 F. Supp. 195, affirmed with modifications. </s> [Footnote * Together with No. 27, United States v. Illinois et al., and No. 28, Interstate Commerce Commission v. Illinois et al., also on appeals from the same Court. </s> R. K. Merrill argued the cause for appellant in No. 12. With him on the brief were W. J. Quinn and Edwin R. Eckersall. </s> Solicitor General Rankin submitted on brief for the United States, appellant in No. 27. </s> Charlie H. Johns, Jr. argued the cause for the Interstate Commerce Commission, appellant in No. 28. With him on the brief was Robert W. Ginnane. </s> Harry R. Begley, Special Assistant Attorney General, argued the cause for the State of Illinois and the Illinois Commerce Commission, appellees. With him on the brief were Latham Castle, Attorney General, and Elmer M. Walsh, Jr., Assistant Attorney General. </s> S. Ashley Guthrie argued the cause for the Milwaukee Road Commuters' Association, appellee. With him on the brief were Henry F. Tenney and Francis D. Fisher. </s> MR. JUSTICE BRENNAN delivered the opinion of the Court. </s> The State of Illinois, the Illinois Commerce Commission, and the Milwaukee Road Commuters' Association, aggrieved by an order of the Interstate Commerce Commission fixing intrastate passenger fares for the Milwaukee Road's Chicago suburban commuter service higher than the fares authorized by the State Commission, brought this action in the District Court for the Northern District of Illinois, Eastern Division, seeking [355 U.S. 300, 302] relief under 28 U.S.C. 1336. The ICC order, 297 I. C. C. 353, was made under 49 U.S.C. 13 (4), 1 which authorizes the ICC to prescribe intrastate fares if it finds that ". . . any such . . . [existing intrastate] fare . . . causes . . . any undue, unreasonable, or unjust discrimination against interstate . . . commerce." The three-judge District Court set aside the order, enjoined its enforcement, 2 and remanded the case to the ICC for further proceedings. 146 F. Supp. 195. The District Court held, inter alia, that the ICC failed to make findings appropriate to show that the existing fares caused undue, unreasonable or unjust discrimination against interstate commerce. The judgment was appealed under 28 U.S.C. 1253. 3 We noted probable jurisdiction, 352 U.S. 939 . [355 U.S. 300, 303] </s> The ICC found that the Milwaukee Road's 1954 passenger revenues from the Chicago suburban commuter service fell short by $306,038 of meeting the out-of-pocket cost of the service. This was the basis of the conclusion that the existing intrastate fares caused undue discrimination against interstate commerce. To remove this discrimination the ICC prescribed fares to produce $383,000 additional annual revenue, enough to eliminate the determined out-of-pocket loss and to allow $77,000 annually as a contribution to indirect costs and taxes. The question for our decision is whether the District Court properly set aside the ICC order as void for lack of findings necessary to support an order under 13 (4). </s> The Chicago suburban commuter service, except for a relatively insignificant exception mentioned below, is entirely an intrastate service. It is provided in two directions from Chicago's Union Station. One direction, wholly within Illinois, is west from Chicago some 37 route miles to Elgin, Illinois. The other direction is north from Chicago to Walworth, Wisconsin; however, 62 of the 74 route miles in that direction, and 24 of the 26 station stops, are located within Illinois. 4 Total 1954 passenger revenues from this service were $1,796,231 from 4,869,064 passengers. Commuters traveling on commutation and [355 U.S. 300, 304] multiple-ride tickets numbered 3,910,526 of this total and accounted for $1,374,261 of the revenue. </s> Commuter fares of most of the railroads providing commuter service in the Chicago area have been determined, at least since 1950, in joint hearings conducted by the ICC and the State Commission under 49 U.S.C. 13 (3). 5 297 I. C. C. 353, 354. On July 24, 1952, however, the Milwaukee Road, instead of filing petitions or schedules with both Commissions, filed a petition with the State Commission only requesting </s> "authority to discontinue all off-peak Chicago suburban passenger trains and consolidate certain peak-hour trains and also to increase one-way, round-trip and commutation fares to such extent as will after taking into consideration the economy effected by [355 U.S. 300, 305] such discontinuances and consolidation of trains, give respondent sufficient revenues to permit operation of the Chicago suburban service without an out-of-pocket loss." 297 I. C. C., at 355. </s> The State Commission did not act on the application until 1954. Meanwhile the Milwaukee Road changed the suburban service from a steam to a diesel operation. The State Commission found that the cost savings effected by this change eliminated the out-of-pocket loss and, on November 10, 1954, denied the application. The Milwaukee Road thereupon, in February 1955, petitioned the ICC for relief under 13 (4). </s> This case presents once again the problem of adjusting state and federal interests in the regulation of intrastate rates. These intrastate rates are primarily the State's concern and federal power is dominant "only so far as necessary to alter rates which injuriously affect interstate transportation." North Carolina v. United States, 325 U.S. 507, 511 . Thus, whenever this federal power is exerted within what would otherwise be the domain of state power, the justification for its exercise must "clearly appear." Florida v. United States, 282 U.S. 194, 212 . The statute provides a practical method of minimizing the inevitable irritations inherent in the conflict by requiring the ICC to notify the State whenever there is brought before it any fare imposed by state authority. In addition, the ICC may confer with the state regulatory authority, or may hold joint hearings with the state agency, when the State's rate-making authority may be affected by the action taken by the ICC. 49 U.S.C. 13 (3). </s> The occasion for the exercise of the federal power asserted by 13 (4) is the necessity for effecting the required contribution by intrastate traffic of its proportionate share of the revenues necessary to pay a carrier's [355 U.S. 300, 306] operating cost and to yield a fair return. 6 When intrastate revenues fall short of producing their fair proportionate share of required total revenues, they work an undue discrimination against interstate commerce, and the ICC may remove the discrimination by fixing intrastate rates high enough reasonably to protect interstate commerce. Illinois Commerce Comm'n v. United States, 292 U.S. 474, 479 ; Wisconsin R. Comm'n v. Chicago, B. & Q. R. Co., 257 U.S. 563, 586 ; United States v. Louisiana, 290 U.S. 70, 75 . In determining whether an undue revenue discrimination against interstate commerce is caused by intrastate rates, the ICC may consider "among other things, the need, in the public interest, of adequate and efficient railway transportation service and the need of revenues sufficient to sustain such service," a standard written into 49 U.S.C. 15a (2). King v. United States, 344 U.S. 254, 264 . No formal requirements are prescribed for the findings to be made by the ICC under 13 (4). United States v. Louisiana, 290 U.S. 70, 80 . Reasonable determinations suffice. Florida v. United States, 292 U.S. 1, 9 . But the justification for the exercise of this exceptional federal power to interfere with intrastate rates must be made definitely and clearly apparent. Florida v. United States, 282 U.S. 194, 212 . </s> In the instant case the ICC interfered with suburban commuter rates - intrastate rates peculiarly localized in impact upon the Chicago suburban community. In substance, the ICC found that because this single segment of the Milwaukee Road's intrastate operations in Illinois did not meet out-of-pocket costs, there was an undue [355 U.S. 300, 307] discrimination against the road's interstate operations, without regard to the contribution of other Illinois intrastate revenues, freight or passenger, concerning which both the record and the findings are entirely silent. </s> We think this is a case where the ICC cannot be sustained in altering intrastate rates merely because the Chicago suburban commuter traffic - of the Milwaukee Road's total intrastate Illinois traffic, freight and passenger - is not remunerative or reasonably compensatory. Cf. Florida v. United States, 282 U.S. 194 ; North Carolina v. United States, 325 U.S. 507 . The limited and exceptional federal power asserted by 13 (4) over intrastate rates must be exercised with "scrupulous regard for maintaining the [primary] power of the state in this field." North Carolina v. United States, 325 U.S. 507, 511 . It is of course desirable that each particular intrastate service should as nearly as may be pay its own way and return a profit - but the State Commission, not the ICC, has the responsibility in the first instance to achieve that desired end. Passenger deficits have become chronic in the railroad industry and it has become necessary to make up these deficits from more remunerative services. The ICC has recognized this practical reality of today's railroading and has changed its rate-fixing policy so that if interstate passenger service inevitably and inescapably cannot bear its direct costs and its share of joint or indirect costs, the ICC feels compelled in a general rate case to take the passenger deficit into account in the adjustment of interstate freight rates and charges. King v. United States, 344 U.S. 254, 261 . An equally broad power must be conceded to a state commission in the exercise of its primary authority to prescribe and adjust intrastate rates. </s> In view of that policy, we do not think that the deficit from this single commuter operation can fairly be adjudged to work an undue discrimination against the Milwaukee [355 U.S. 300, 308] Road's interstate operations without findings which take the deficit into account in the light of the carrier's other intrastate revenues from Illinois traffic, freight and passenger. The basic objective of 13 (4), applied in the light of 15a (2) to this case, is to prevent a discrimination against the carrier's interstate traffic which would result from saddling that traffic with an undue burden of providing intrastate services. A fair picture of the intrastate operation, and whether the intrastate traffic unduly discriminates against interstate traffic, is not shown, in this case, by limiting consideration to the particular commuter service in disregard of the revenue contributed by the other intrastate services. 7 </s> A requirement for findings which reflect the commuter service deficit in the totality of intrastate revenues is not a departure from previous holdings of this Court. The precise situation presented by this case has not heretofore been considered by the Court. The previous cases involving Commission orders increasing intrastate rates in the interest of the carrier's revenue (as distinguished from cases of discrimination against particular persons and localities, see Houston, E. & W. T. R. Co. v. United States, 234 U.S. 342 ) involved statewide orders raising intrastate rates. In passenger fare cases, ICC orders were sustained on a showing that following general increases in interstate passenger rates, state commissions refused to increase intrastate passenger rates to the same level for what were essentially identical services. Wisconsin [355 U.S. 300, 309] R. Comm'n v. Chicago, B. & Q. R. Co., 257 U.S. 563 ; New York v. United States, 257 U.S. 591 . It was held that the state passenger rates in that circumstance were not producing their fair proportionate share. In North Carolina v. United States, 325 U.S. 507 , also a passenger fare case, the ICC order was not sustained because the findings were held to be insufficient. Nonpassenger fare cases in which ICC orders raising intrastate rates were sustained were United States v. Louisiana, 290 U.S. 70 ; Florida v. United States, 292 U.S. 1 ; and King v. United States, 344 U.S. 254 . The order was not sustained, however, in an earlier Florida case, Florida v. United States, 282 U.S. 194 . The only case ostensibly based upon a revenue discrimination caused by a local operation was not a passenger fare case. Illinois Commerce Comm'n v. United States, 292 U.S. 474 . Basically the discrimination there complained of, however, was a persons-and-locality discrimination against interstate shippers. </s> It should also be noted that in King v. United States, supra, the Court adverted to those very factors among the ICC's findings whose absence in the present case we find to be a fatal defect. The Court there emphasized the ICC finding that the entire intrastate traffic, freight and passenger, constituted a revenue drain upon the carrier's revenues from interstate traffic. Since the Commission has not in this case found whether or not the commuter rates, viewed in the light of the Illinois intrastate operation as a whole, constitute an undue revenue discrimination against the Milwaukee Road's interstate operations, the judgment of the District Court in remanding the case to the Commission for further consideration must be affirmed. 8 </s> [355 U.S. 300, 310] </s> The District Court also held that the ICC erred in considering evidence which was not presented by the Milwaukee Road to the State Commission. The evidence in question concerned certain depreciation and maintenance-of-way expenses totaling $258,172, which the ICC took into account in computing out-of-pocket costs. The District Court said: </s> "If different evidence is to be offered or a different basis of fares is to be urged before the interstate commission, the state commission should have been given a chance to fix fares on the same evidence and the same basis. </s> . . . . . </s> "Where a railroad seeks the fixing of higher intrastate rates by the interstate commission after failing in such endeavor before a state commission, 13 (4) does not contemplate that the state commission is to be considered only a way station in a journey to the interstate commission." 146 F. Supp. 195, 201, 202. [355 U.S. 300, 311] </s> This holding in effect restricts the ICC in decisions under 13 (4) to the identical evidence presented by the railroad to the State Commission. So to restrict the ICC's consideration as to whether intrastate rates work an undue discrimination against interstate commerce might seriously interfere with the Commission's duty to remove the discrimination to protect the exclusive federal domain of interstate commerce. It is contrary to this Court's holding in Florida v. United States, 282 U.S. 194 . There the State Commission had not affirmatively prescribed the existing rates which the ICC increased. It was urged that until the State Commission did so 13 (4) granted no power to the ICC to prescribe higher rates. This Court rejected this contention, saying "To hold . . . that there can be no adjustment of intrastate rates by the Interstate Commerce Commission so far as may be needed to protect interstate commerce until the State itself has first `sat in judgment on the issue of the lawfulness of those intrastate rates' would be to impose a limitation not required by the terms of the statute and repugnant to the grant of authority." Id., at 210. </s> In this case the ICC might more wisely have arranged for joint hearings under 13 (3) or have deferred action pending an opportunity for the State Commission to consider this evidence. However, nothing in the statute compels either course or denies the ICC the power to determine the question presented by the railroad's petition, whatever may have been the evidence presented before the State Commission. See North Carolina v. United States, 128 F. Supp. 718, affirmed, 350 U.S. 805 ; Illinois v. United States, 101 F. Supp. 36, 47, affirmed, 342 U.S. 930 . </s> Finally, it is argued that the District Court erred in setting aside so much of the ICC order as authorized an increase in the interstate fares to the two Wisconsin points. We believe, however, that these rates are so interwoven [355 U.S. 300, 312] with and so closely bound to the intrastate rates that a proper disposition of this case reasonably requires that the Commission reconsider them as part of its reconsideration of the entire Chicago suburban commuter service. The only reason why the ICC increased the interstate rates was to make them conform to the increased intrastate rates. </s> Paragraph 3 of the District Court judgment dated June 14, 1956, is modified to provide that the remand to the ICC shall be for further proceedings not inconsistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 24 Stat. 383, as amended, 41 Stat. 484, 49 U.S.C. 13 (4): </s> "Whenever in any such investigation the commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding." </s> [Footnote 2 The injunction was stayed pending the hearing of the appeal to this Court. The excess fares are being impounded under a provision of the stay order providing for their refund to the persons who paid them in the event the judgment appealed from is affirmed. </s> [Footnote 3 The Milwaukee Road is the appellant in No. 12. The United States is the appellant in No. 27. The ICC is the appellant in No. 28. Each appeals from the particular provisions of the judgment by which it is aggrieved. </s> [Footnote 4 The interstate fares to the two Wisconsin points were also raised in this proceeding by an ICC order entered November 21, 1955, and Order No. 26550, Passenger Fares and Surcharges, 214 I. C. C. 174, was modified so as to permit the rates to be made effective. No affirmative order raising the intrastate rates was made, however, until March 2, 1956. The ICC report allowed the Milwaukee Road and the Illinois Commerce Commission 60 days in which to adjust the intrastate rates on the bases prescribed in the report. Failing such adjustment the order of March 2, 1956, prescribing the intrastate rates was entered and Order No. 11703, Intrastate Rates Within Illinois, 59 I. C. C. 350, was modified to permit the Milwaukee Road to make the intrastate rates effective. </s> [Footnote 5 24 Stat. 383, as amended, 41 Stat. 484, 49 U.S.C. 13 (3): </s> "Whenever in any investigation under the provisions of this chapter, or in any investigation instituted upon petition of the carrier concerned, which petition is authorized to be filed, there shall be brought in issue any rate, fare, charge, classification, regulation, or practice, made or imposed by authority of any State, the commission, before proceeding to hear and dispose of such issue, shall cause the State or States interested to be notified of the proceeding. The commission may confer with the authorities of any State having regulatory jurisdiction over the class of persons and corporations subject to this chapter or chapter 12 of this title with respect to the relationship between rate structures and practices of carriers subject to the jurisdiction of such State bodies and of the commission; and to that end is authorized and empowered, under rules to be prescribed by it, and which may be modified from time to time, to hold joint hearings with any such State regulating bodies on any matters wherein the commission is empowered to act and where the rate-making authority of a State is or may be affected by the action taken by the commission. The commission is also authorized to avail itself of the cooperation, services, records, and facilities of such State authorities in the enforcement of any provision of this chapter or chapter 12 of this title." </s> [Footnote 6 Wisconsin R. Comm'n v. Chicago, B. & Q. R. Co., 257 U.S. 563, 586 . "The effective operation of the [Interstate Commerce] act will reasonably and justly require that intrastate traffic should pay a fair proportionate share of the cost of maintaining an adequate railway system." </s> [Footnote 7 This would seem to be particularly required here in light of the Commission's recognition "that the deficit from the [Milwaukee Road's] total passenger operations is relatively greater than from its suburban operations." 297 I. C. C. 353, 359. </s> The Commission found that the Milwaukee Road earned in 1954 from its freight operations $37,293,050, and suffered a deficit from all passenger operations of $22,824,532, resulting in a net railway operating income of $14,568,518. This represented a return of approximately 2%. </s> [Footnote 8 We agree with the District Court that that portion of the prescribed increases designed to produce $77,000 annually as a contribution to indirect costs and taxes is not based upon adequate findings. There is no finding of the total of indirect costs and taxes to which [355 U.S. 300, 310] contribution is to be made, nor any finding from which we may infer how the ICC derived its conclusion that a $77,000 contribution was fair. It is axiomatic that to know whether something is a fair proportionate part of something else, we must be told what the something else is. </s> On the other hand we cannot agree with the District Court that there was not support in the evidence for the ICC's finding that the prescribed rates would be just and reasonable for the future. The ICC did not rely solely upon the comparison with the similar fares of the Northwestern, for there was ample other evidence in the record to sustain their findings. But the factors which determine the reasonableness of a rate are so different from the factors which determine what is a fair proportionate share of a carrier's total income that a finding of the reasonableness of the rates prescribed does not embrace all the findings necessary to support the exercise of the 13 (4) power. </s> [355 U.S. 300, 313]

United States Supreme Court LABOR BOARD v. RADIO ENGINEERS(1961) No. 69 Argued: Decided: January 9, 1961 </s> Two labor unions were engaged in a jurisdictional dispute over a certain type of work for a certain employer. Both had collective bargaining agreements with the employer, and one was the certified bargaining agent for its members; but neither the certification nor the agreements clearly apportioned the disputed type of work between their respective members. The respondent union caused a work stoppage on a particular job, because work of this type was assigned to members of the other union. The employer filed an unfair labor practice charge, claiming a violation of 8 (b) (4) (D) of the National Labor Relations Act. After a hearing under 10 (k), the Board held that the respondent union was not entitled to have the work assigned to its members; but the Board refused to make an affirmative award of the work between the employees represented by the two unions. Respondent refused to comply with the decision, and the Board issued a cease-and-desist order to compel it to do so. Held: The Board's order is not entitled to enforcement, because the Board had not discharged its duty under 10 (k) to "determine the dispute." It should have made an affirmative award of the work between the employees of the competing unions. Pp. 574-586. </s> 272 F.2d 713, affirmed. </s> Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman, Norton J. Come and Melvin J. Welles. </s> Robert Silagi and Louis Sherman argued the cause for respondent. With them on the brief were Joseph B. Robison and Joseph M. Stone. [364 U.S. 573, 574] </s> MR. JUSTICE BLACK delivered the opinion of the Court. </s> This case, in which the Court of Appeals refused to enforce a cease-and-desist order of the National Labor Relations Board, grew out of a "jurisdictional dispute" over work assignments between the respondent union, composed of television "technicians," 1 and another union, composed of "stage employees." 2 Both of these unions had collective bargaining agreements in force with the Columbia Broadcasting System and the respondent union was the certified bargaining agent for its members, but neither the certification nor the agreements clearly apportioned between the employees represented by the two unions the work of providing electric lighting for television shows. This led to constant disputes, extending over a number of years, as to the proper assignment of this work, disputes that were particularly acrimonious with reference to "remote lighting," that is, lighting for telecasts away from the home studio. Each union repeatedly urged Columbia to amend its bargaining agreement so as specifically to allocate remote lighting to its members rather than to members of the other union. But, as the Board found, Columbia refused to make such an agreement with either union because "the rival locals had failed to agree on the resolution of this jurisdictional dispute over remote lighting." 3 Thus feeling [364 U.S. 573, 575] itself caught "between the devil and the deep blue," 4 Columbia chose to divide the disputed work between the two unions according to criteria improvised apparently for the sole purpose of maintaining peace between the two. But, in trying to satisfy both of the unions, Columbia has apparently not succeeded in satisfying either. During recent years, it has been forced to contend with work stoppages by each of the two unions when a particular assignment was made in favor of the other. 5 </s> The precise occasion for the present controversy was the decision of Columbia to assign the lighting work for a major telecast from the Waldorf-Astoria Hotel in New York City to the stage employees. When the technicians' protest of this assignment proved unavailing, they refused to operate the cameras for the program and thus forced its cancellation. 6 This caused Columbia to file the unfair labor practice charge which started these proceedings, claiming a violation of 8 (b) (4) (D) of the National Labor Relations Act. 7 That section clearly makes it an unfair labor practice for a labor union to induce a strike or [364 U.S. 573, 576] a concerted refusal to work in order to compel an employer to assign particular work to employees represented by it rather than to employees represented by another union, unless the employer's assignment is in violation of "an order or certification of the Board determining the bargaining representative for employees performing such work . . . ." 8 Obviously, if 8 (b) (4) (D) stood alone, what this union did in the absence of a Board order or certification entitling its members to be assigned to these particular jobs would be enough to support a finding of an unfair labor practice in a normal proceeding under 10 (c) of the Act. 9 But when Congress created this new type of unfair labor practice by enacting 8 (b) (4) (D) as part of the Taft-Hartley Act in 1947, it also added 10 (k) to the Act. 10 Section 10 (k), set out below, 11 quite plainly emphasizes the belief of Congress [364 U.S. 573, 577] that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions. Accordingly, 10 (k) offers strong inducements to quarrelling unions to settle their differences by directing dismissal of unfair labor practice charges upon voluntary adjustment of jurisdictional disputes. And even where no voluntary adjustment is made, "the Board is empowered and directed," by 10 (k), "to hear and determine the dispute out of which such unfair labor practice shall have arisen," and upon compliance by the disputants with the Board's decision the unfair labor practice charges must be dismissed. </s> In this case respondent failed to reach a voluntary agreement with the stage employees union so the Board held the 10 (k) hearing as required to "determine the dispute." The result of this hearing was a decision that the respondent union was not entitled to have the work assigned to its members because it had no right to it under either an outstanding Board order or certification, as provided in 8 (b) (4) (D), or a collective bargaining agreement. 12 The Board refused to consider other criteria, such as the employer's prior practices and the custom of the industry, and also refused to make an affirmative award of the work between the employees [364 U.S. 573, 578] represented by the two competing unions. The respondent union refused to comply with this decision, contending that the Board's conception of its duty to "determine the dispute" was too narrow in that this duty is not at all limited, as the Board would have it, to strictly legal considerations growing out of prior Board orders, certifications or collective bargaining agreements. It urged, instead, that the Board's duty was to make a final determination, binding on both unions, as to which of the two unions' members were entitled to do the remote lighting work, basing its determination on factors deemed important in arbitration proceedings, such as the nature of the work, the practices and customs of this and other companies and of these and other unions, and upon other factors deemed relevant by the Board in the light of its experience in the field of labor relations. On the basis of its decision in the 10 (k) proceeding and the union's challenge to the validity of that decision, the Board issued an order under 10 (c) directing the union to cease and desist from striking to compel Columbia to assign remote lighting work to its members. The Court of Appeals for the Second Circuit refused to enforce the cease-and-desist order, accepting the respondent's contention that the Board had failed to make the kind of determination that 10 (k) requires. 13 The Third 14 and Seventh 15 Circuits have construed 10 (k) the same way, while the Fifth Circuit 16 has agreed with the Board's narrower conception of its duties. Because of this conflict and the importance of this problem, we granted certiorari. 17 </s> [364 U.S. 573, 579] </s> We agree with the Second, Third and Seventh Circuits that 10 (k) requires the Board to decide jurisdictional disputes on their merits and conclude that in this case that requirement means that the Board should affirmatively have decided whether the technicians or the stage employees were entitled to the disputed work. The language of 10 (k), supplementing 8 (b) (4) (D) as it does, sets up a method adopted by Congress to try to get jurisdictional disputes settled. The words "hear and determine the dispute" convey not only the idea of hearing but also the idea of deciding a controversy. And the clause "the dispute out of which such unfair labor practice shall have arisen" can have no other meaning except a jurisdictional dispute under 8 (b) (4) (D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer. To determine or settle the dispute as between them would normally require a decision that one or the other is entitled to do the work in dispute. Any decision short of that would obviously not be conducive to quieting a quarrel between two groups which, here as in most instances, is of so little interest to the employer that he seems perfectly willing to assign work to either if the other will just let him alone. This language also indicates a congressional purpose to have the Board do something more than merely look at prior Board orders and certifications or a collective bargaining contract to determine whether one or the other union has a clearly defined statutory or contractual right to have the employees it represents perform certain work tasks. For, in the vast majority of cases, such a narrow determination would leave the broader problem of work assignments in the hands of the employer, exactly where it was before the enactment of 10 (k) - with the same old basic jurisdictional dispute likely continuing to vex him, and the rival unions, short of striking, would still be free to adopt other forms of pressure upon the employer. The [364 U.S. 573, 580] 10 (k) hearing would therefore accomplish little but a restoration of the pre-existing situation, a situation already found intolerable by Congress and by all parties concerned. If this newly granted Board power to hear and determine jurisdictional disputes had meant no more than that, Congress certainly would have achieved very little to solve the knotty problem of wasteful work stoppages due to such disputes. </s> This conclusion reached on the basis of the language of 10 (k) and 8 (b) (4) (D) is reinforced by reference to the history of those provisions. Prior to the enactment of the Taft-Hartley Act, labor, business and the public in general had for a long time joined in hopeful efforts to escape the disruptive consequences of jurisdictional disputes and resulting work stoppages. To this end unions had established union tribunals, employers had established employer tribunals, and both had set up joint tribunals to arbitrate such disputes. 18 Each of these efforts had helped some but none had achieved complete success. The result was a continuing and widely expressed dissatisfaction with jurisdictional strikes. As one of the forerunners to these very provisions of the Act, President Truman told the Congress in 1947 that disputes "involving the question of which labor union is entitled to perform a particular task" should be settled, and that if the "rival unions are unable to settle such disputes themselves, provision must be made for peaceful and binding determination of the issues." 19 And the House Committee report on one of the proposals out of which these sections came recognized the necessity of enacting legislation [364 U.S. 573, 581] to protect employers from being "the helpless victims of quarrels that do not concern them at all." 20 </s> The Taft-Hartley Act as originally offered contained only a section making jurisdictional strikes an unfair labor practice. Section 10 (k) came into the measure as the result of an amendment offered by Senator Morse which, in its original form, proposed to supplement this blanket proscription by empowering and directing the Board either "to hear and determine the dispute out of which such unfair labor practice shall have arisen or to appoint an arbitrator to hear and determine such dispute . . . ." 21 That the purpose of this amendment was to set up machinery by which the underlying jurisdictional dispute would be settled is clear and, indeed, even the Board concedes this much. The authority to appoint an arbitrator passed the Senate 22 but was eliminated in conference, 23 leaving it to the Board alone "to hear and determine" the underlying jurisdictional dispute. The Board's position is that this change can be interpreted as an indication that Congress decided against providing for the compulsory determination of jurisdictional disputes. We find this argument unpersuasive, to say the very least. The obvious effect of this change was simply to place the responsibility for compulsory determination of the dispute [364 U.S. 573, 582] entirely on the Board, not to eliminate the requirement that there be such a compulsory determination. The Board's view of its powers thus has no more support in the history of 10 (k) than it has in the language of that section. Both show that the section was designed to provide precisely what the Board has disclaimed the power to provide - an effective compulsory method of getting rid of what were deemed to be the bad consequences of jurisdictional disputes. </s> The Board contends, however, that this interpretation of 10 (k) should be rejected, despite the language and history of that section. In support of this contention, it first points out that 10 (k) sets forth no standards to guide it in determining jurisdictional disputes on their merits. From this fact, the Board argues that 8 (b) (4) (D) makes the employer's assignment decisive unless he is at the time acting in violation of a Board order or certification and that the proper interpretation of 10 (k) must take account of this right of the employer. It is true, of course, that employers normally select and assign their own individual employees according to their best judgment. But here, as in most situations where jurisdictional strikes occur, the employer has contracted with two unions, both of which represent employees capable of doing the particular tasks involved. The result is that the employer has been placed in a situation where he finds it impossible to secure the benefits of stability from either of these contracts, not because he refuses to satisfy the unions, but because the situation is such that he cannot satisfy them. Thus, it is the employer here, probably more than anyone else, who has been and will be damaged by a failure of the Board to make the binding decision that the employer has not been able to make. We therefore are not impressed by the Board's solicitude for the employer's right to do that which he has not been, and most likely will not be, [364 U.S. 573, 583] able to do. It is true that this forces the Board to exercise under 10 (k) powers which are broad and lacking in rigid standards to govern their application. But administrative agencies are frequently given rather loosely defined powers to cope with problems as difficult as those posed by jurisdictional disputes and strikes. It might have been better, as some persuasively argued in Congress, to intrust this matter to arbitrators. But Congress, after discussion and consideration, decided to intrust this decision to the Board. It has had long experience in hearing and disposing of similar labor problems. With this experience and a knowledge of the standards generally used by arbitrators, unions, employers, joint boards and others in wrestling with this problem, we are confident that the Board need not disclaim the power given it for lack of standards. Experience and common sense will supply the grounds for the performance of this job which Congress has assigned the Board. </s> The Board also contends that respondent's interpretation of 10 (k) should be avoided because that interpretation completely vitiates the purpose of Congress to encourage the private settlement of jurisdictional disputes. This contention proceeds on the assumption that the parties to a dispute will have no incentive to reach a private settlement if they are permitted to adhere to their respective views until the matter is brought before the Board and then given the same opportunity to prevail which they would have had in a private settlement. Respondent disagrees with this contention and attacks the Board's assumption. We find it unnecessary to resolve this controversy for it turns upon the sort of policy determination that must be regarded as implicitly settled by Congress when it chose to enact 10 (k). Even if Congress has chosen the wrong way to accomplish its aim, that choice is binding both upon the Board and upon this Court. [364 U.S. 573, 584] </s> The Board's next contention is that respondent's interpretation of 10 (k) should be rejected because it is inconsistent with other provisions of the Taft-Hartley Act. The first such inconsistency urged is with 8 (a) (3) and 8 (b) (2) 24 of the Act on the ground that the determination of jurisdictional disputes on their merits by the Board might somehow enable unions to compel employers to discriminate in regard to employment in order to encourage union membership. The argument here, which is based upon the fact that 10 (k), like 8 (b) (4) (D), extends to jurisdictional disputes between unions and unorganized groups as well as to disputes between two or more unions, appears to be that groups represented by unions would almost always prevail over nonunion groups in such a determination because their claim to the work would probably have more basis in custom and tradition than that of unorganized groups. No such danger is present here, however, for both groups of employees are represented by unions. Moreover, we feel entirely confident that the Board, with its many years of experience in guarding against and redressing violations of 8 (a) (3) and 8 (b) (2), will devise means of discharging its duties under 10 (k) in a manner entirely harmonious with those sections. A second inconsistency is urged with 303 (a) (4) of the Taft-Hartley Act, 25 which authorizes suits for damages suffered because of jurisdictional strikes. The argument here is that since 303 (a) (4) does not permit a union to establish, as a defense to an action for damages under that section, that it is entitled to the work struck for on the basis of such factors as practice or custom, a similar result is required here in order to preserve "the substantive symmetry" between 303 (a) (4) on the one hand and 8 (b) (4) (D) and [364 U.S. 573, 585] 10 (k) on the other. This argument ignores the fact that this Court has recognized the separate and distinct nature of these two approaches to the problem of handling jurisdictional strikes. 26 Since we do not require a "substantive symmetry" between the two, we need not and do not decide what effect a decision of the Board under 10 (k) might have on actions under 303 (a) (4). </s> The Board's final contention is that since its construction of 10 (k) was adopted shortly after the section was added to the Act and has been consistently adhered to since, that construction has itself become a part of the statute by reason of congressional acquiescence. In support of this contention, the Board points out that Congress has long been aware of its construction and yet has not seen fit to adopt proposed amendments which would have changed it. In the ordinary case, this argument might have some weight. But an administrative construction adhered to in the face of consistent rejection by Courts of Appeals is not such an ordinary case. Moreover, the Board had a regulation on this subject from 1947 to 1958 which the Court of Appeals for the Seventh Circuit thought, with some reason, was wholly inconsistent with the Board's present interpretation. 27 With all this uncertainty surrounding the eventual authoritative interpretation of the existing law, the failure of Congress to enact a new law simply will not support the inference which the Board asks us to make. [364 U.S. 573, 586] </s> We conclude therefore that the Board's interpretation of its duty under 10 (k) is wrong and that under that section it is the Board's responsibility and duty to decide which of two or more employee groups claiming the right to perform certain work tasks is right and then specifically to award such tasks in accordance with its decision. Having failed to meet that responsibility in this case, the Board could not properly proceed under 10 (c) to adjudicate the unfair labor practice charge. The Court of Appeals was therefore correct in refusing to enforce the order which resulted from that proceeding. </s> Affirmed. </s> Footnotes [Footnote 1 Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO. </s> [Footnote 2 Theatrical Protective Union No. 1, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO. </s> [Footnote 3 The other major television broadcasting companies have also been forced to contend with this same problem. The record shows that there has been joint bargaining on this point between Columbia, National and American Broadcasting Systems on the one hand and the unions on the other. All the companies refused to allocate the work to either union because the unions did not agree among themselves. Columbia's vice president in charge of labor relations explained the situation in these terms: "All three companies negotiating jointly here took the position that they could not do this. They could not give exclusive jurisdiction because each of them had a conflicting claim from another union." See also National Association of Broadcast Engineers, 105 N. L. R. B. 355. </s> [Footnote 4 This phrase was used by the Hearing Examiner to describe the position of Columbia as explained by its vice president in charge of labor relations. </s> [Footnote 5 See Theatrical Protective Union No. 1, International Alliance of Theatrical Stage Employees, 124 N. L. R. B. 249, for a report of a recent jurisdictional strike against Columbia by the same stage employees' union involved here which resulted from an assignment of remote lighting work favorable to the technicians. </s> [Footnote 6 Respondent, for the purposes of this proceeding only, concedes the correctness of a Board finding to this effect. </s> [Footnote 7 29 U.S.C. 158 (b) (4) (D). </s> [Footnote 8 Section 8 (b). "It shall be an unfair labor practice for a labor organization or its agents - </s> . . . . . </s> "(4) . . . to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal . . . to perform any services, where an object thereof is: . . . (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: . . . " </s> [Footnote 9 29 U.S.C. 160 (c). </s> [Footnote 10 29 U.S.C. 160 (k). </s> [Footnote 11 "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless . . . the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed." </s> [Footnote 12 This latter consideration was made necessary because the Board has adopted the position that jurisdictional strikes in support of contract rights do not constitute violations of 8 (b) (4) (D) despite the fact that the language of that section contains no provision for special treatment of such strikes. See Local 26, International Fur Workers, 90 N. L. R. B. 1379. The Board has explained this position as resting upon the principle that "to fail to hold as controlling . . . the contractual preemption of the work in dispute would be to encourage disregard for observance of binding obligations under collective-bargaining agreements and invite the very jurisdictional disputes Section 8 (b) (4) (D) is intended to prevent." National Association of Broadcast Engineers, supra, n. 3, at 364. </s> [Footnote 13 272 F.2d 713. </s> [Footnote 14 N. L. R. B. v. United Association of Journeymen, 242 F.2d 722. </s> [Footnote 15 N. L. R. B. v. United Brotherhood of Carpenters, 261 F.2d 166. </s> [Footnote 16 N. L. R. B. v. Local 450, International Union of Operating Engineers, 275 F.2d 413. </s> [Footnote 17 363 U.S. 802 . </s> [Footnote 18 For a review and criticism of some of these efforts, see Dunlop, Jurisdictional Disputes, N. Y. U. 2d Ann. Conference on Labor 477, at 494-504. </s> [Footnote 19 93 Cong. Rec. 136. </s> [Footnote 20 H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 23, I Legislative History of the Labor Management Relations Act, 1947, at 314 (hereinafter cited as Leg. Hist.). </s> [Footnote 21 The amendment was contained in a bill (S. 858) offered by Senator Morse, which also contained a number of other proposals. 93 Cong. Rec. 1913, II Leg. Hist. 987. </s> [Footnote 22 I Leg. Hist. 241, 258-259. See also the Senate Committee Report on the bill, S. Rep. No. 105, 80th Cong., 1st Sess., p. 8, I Leg. Hist. 414. </s> [Footnote 23 H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., p. 57, I Leg. Hist. 561. </s> [Footnote 24 29 U.S.C. 158 (a) (3) and 158 (b) (2). </s> [Footnote 25 29 U.S.C. 187 (a) (4). </s> [Footnote 26 International Longshoremen's Union v. Juneau Spruce Corp., 342 U.S. 237 . </s> [Footnote 27 See N. L. R. B. v. United Brotherhood of Carpenters, supra, at 170-172. The Rules and Regulations adopted in 1947 by the Board provided that in 10 (k) proceedings the Board was "to certify the labor organization or the particular trade, craft, or class of employees, as the case may be, which shall perform the particular work tasks in issue, or to make other disposition of the matter." (Emphasis supplied.) 29 CFR, 1957 Supp., 102.73. This rule remained in effect until 1958. </s> [364 U.S. 573, 587]

United States Supreme Court POWELL v. TEXAS(1989) No. 88-6801 Argued: Decided: July 3, 1989 </s> Under Texas law an individual may not be sentenced to death unless the State proves that there is a probability that he would commit future acts of violence that would constitute a continuing threat to society. Following petitioner Powell's arrest for capital murder, a state trial court ordered that a psychiatric examination be conducted to determine his competency to stand trial and sanity at the time of the offenses. Neither he nor his counsel was notified that he would be examined on the issue of future dangerousness, and he was not informed of his right to remain silent. He was convicted. At his sentencing hearing, the doctors who had examined him testified on the issue of future dangerousness, and he was sentenced to death. The Court of Appeals declined to vacate the sentence, holding that, by introducing psychiatric testimony in support of an insanity defense, Powell had waived his Fifth and Sixth Amendment right to object to the State's use of the testimony, inter alia, to satisfy its burden of proving future dangerousness. </s> Held: </s> The evidence of future dangerousness was taken in deprivation of Powell's Sixth Amendment right to the assistance of counsel. Under Estelle v. Smith, 451 U.S. 454 , and Satterwhite v. Texas, 486 U.S. 249 , once a defendant is formally charged, the right to counsel precludes a psychiatric examination concerning future dangerousness without notice to counsel. The lower court's holding that Powell waived his Fifth Amendment privilege against self-incrimination provides no basis for concluding that he waived this separate Sixth Amendment right, and the court erred in conflating the two Amendments' analyses. </s> Certiorari granted; 767 S. W. 2d 75, reversed. </s> PER CURIAM. </s> This case - and, indeed, this precise question - is now before the Court for the second time. Last Term, petitioner sought review of the decision of the Texas Court of Criminal Appeals affirming his sentence of death, asserting that evidence was received during the penalty phase of his trial in contravention of his Fifth and Sixth Amendment rights. After issuing our decision in Satterwhite v. Texas, 486 U.S. [492 U.S. 680, 681] 249 (1988), we granted the petition for a writ of certiorari, vacated the Texas court's judgment, and remanded for further consideration in light of Satterwhite. 487 U.S. 1230 (1988). On remand, the Texas court reinstated its prior decision. Because that decision is inconsistent with our decisions in Satterwhite and Estelle v. Smith, 451 U.S. 454 (1981), we now grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and reverse the judgment of the Court of Criminal Appeals. </s> In Estelle v. Smith we held that a capital defendant's Fifth Amendment right against compelled self-incrimination precludes the state from subjecting him to a psychiatric examination concerning future dangerousness without first informing the defendant that he has a right to remain silent and that anything he says can be used against him at a sentencing proceeding. Id., at 461-469. We also held - and in this respect the Court's judgment was unanimous - that, once a capital defendant is formally charged, the Sixth Amendment right to counsel precludes such an examination without first notifying counsel that "the psychiatric examination [will] encompass the issue of their client's future dangerousness." Id., at 471. See also id., at 474 (Stewart, J., concurring in judgment); ibid. (REHNQUIST, J., concurring in judgment). Last Term's decision in Satterwhite reaffirmed this Sixth Amendment protection, emphasizing that "for a defendant charged with a capital crime, the decision whether to submit to a psychiatric examination designed to determine his future dangerousness is `literally a life or death matter' which the defendant should not be required to face without `the guiding hand of counsel.'" 486 U.S., at 254 (citations omitted). </s> In this case there is no dispute that on the day of petitioner's arrest the trial court, at the State's request, ordered that a psychiatric examination be conducted by Dr. Richard Coons and a psychologist of Dr. Coons' choice to determine petitioner's competency to stand trial and sanity at the time of the offense. Dr. Coons examined petitioner on four occasions, [492 U.S. 680, 682] and Dr. George Parker, a clinical psychologist, tested petitioner on two additional occasions. It is also undisputed that neither petitioner nor his attorney was notified that he would be examined on the issue of future dangerousness and that petitioner was not informed of his right to remain silent. Finally, it is uncontested that, over petitioner's objection, Drs. Coons and Parker testified at petitioner's sentencing hearing that based on these examinations they were of the view that petitioner "would commit future acts of violence that would constitute a continuing threat to society." 742 S. W. 2d 353, 356 (Tex. Crim. App. 1987) (en banc). The jury was persuaded of this fact, and petitioner was sentenced to death. 1 </s> Despite the close similarity between the facts of this case and those at issue in Smith, the Texas Court of Criminal Appeals in its original decision declined to vacate petitioner's sentence. 742 S. W. 2d, at 360. That decision was premised on alternative holdings: petitioner's Fifth and Sixth Amendment rights were not violated, id., at 357-359, and, even if they were, any error was harmless, id., at 359-360. After we granted the initial petition for a writ of certiorari, vacated the Court of Criminal Appeals' judgment, and remanded for further consideration in light of Satterwhite, the court reinstated its earlier decision holding that petitioner's Fifth and Sixth Amendment rights were not violated. 767 S. W. 2d 759 (1989) (en banc). The court simply withdrew that portion of its original opinion that relied on harmless-error analysis, observing that the analysis it applied was "denounced" in Satterwhite and was, in any event, "superfluous to the disposition and constituted nothing more than obiter dictum." 767 S. W. 2d, at 762. But, it made clear that its "initial determination of no Smith error, as well as the remaining [492 U.S. 680, 683] holdings of [the] original opinion, . . . remain[ed] undisturbed." Ibid. In dissent, Judge Clinton wrote that to consider "that Satterwhite `solely concerned harmless error,' . . . is to disregard much in Part II of that opinion finding a violation of the Sixth Amendment right to assistance of counsel." Id., at 763. He also observed that "it is most unlikely that the Supreme Court would remand this cause for us to reconsider a superfluous harmless error analysis, albeit it was utterly flawed[,] [u]nless the Supreme Court believed `there was error in admitting the testimony of Drs. Coon[s] and Parker.'" Id., at 764 (citation omitted). </s> The Court of Criminal Appeals' holding that petitioner's Fifth and Sixth Amendment rights were not violated was based on its conclusion that petitioner waived those rights by introducing psychiatric testimony in support of a defense of insanity. 742 S. W. 2d, at 357-358. The court held that petitioner not only waived the right to object to the State's use of the Coons and Parker testimony to rebut his defense, but that he also waived the right to object to the State's use of this testimony to satisfy its burden at sentencing of proving the separate issue of future dangerousness. Id., at 358-359. Because the Court of Criminal Appeals conflated the Fifth and Sixth Amendment analyses, and provided no support for its conclusion that petitioner waived his Sixth Amendment right, its judgment must be reversed. 2 </s> The principal support found in the Court of Criminal Appeals' decision for the proposition that petitioner waived the right to object to the State's use of the Coons and Parker testimony is the Fifth Circuit's opinion in Battie v. Estelle, 655 F.2d 692 (1981). In that case, the Court of Appeals suggested that if a defendant introduces psychiatric testimony to establish a mental-status defense, the government may be justified in also using such testimony to rebut the defense [492 U.S. 680, 684] notwithstanding the defendant's assertion that the psychiatric examination was conducted in violation of his right against self-incrimination. Id., at 700-702. In such circumstances, the defendant's use of psychiatric testimony might constitute a waiver of the Fifth Amendment privilege, just as the privilege would be waived if the defendant himself took the stand. Id., at 701-702, and n. 22. The Court of Appeals explained that "any burden imposed on the defense by this result is justified by the State's overwhelming difficulty in responding to the defense psychiatric testimony without its own psychiatric examination of the accused and by the need to prevent fraudulent mental defenses." Id., at 702 (footnote omitted). </s> Language contained in Smith and in our later decision in Buchanan v. Kentucky, 483 U.S. 402 (1987), provides some support for the Fifth Circuit's discussion of waiver. In Smith we observed that "[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he has interjected into the case." 451 U.S., at 465 . And in Buchanan the Court held that if a defendant requests a psychiatric examination in order to prove a mental-status defense, he waives the right to raise a Fifth Amendment challenge to the prosecution's use of evidence obtained through that examination to rebut the defense. 483 U.S., at 422 -423. </s> Significantly, the Court of Appeals made clear in Battie that it was dealing exclusively with the Fifth Amendment privilege and was not passing upon the defendant's separate Sixth Amendment challenge. 655 F.2d, at 694, n. 2. Likewise, the waiver discussions contained in Smith and Buchanan deal solely with the Fifth Amendment right against self-incrimination. Indeed, both decisions separately discuss the Fifth and Sixth Amendment issues so as not to confuse the distinct analyses that apply. No mention of waiver is contained in the portion of either opinion discussing the Sixth [492 U.S. 680, 685] Amendment right. This is for good reason. While it may be unfair to the state to permit a defendant to use psychiatric testimony without allowing the state a means to rebut that testimony, it certainly is not unfair to require the state to provide counsel with notice before examining the defendant concerning future dangerousness. Thus, if a defendant were to surprise the prosecution on the eve of trial by raising an insanity defense to be supported by psychiatric testimony, the court might be justified in ordering a continuance and directing that the defendant submit to examination by a state-appointed psychiatrist. There would be no justification, however, for also directing that defense counsel receive no notice of this examination. </s> The distinction between the appropriate Fifth and Sixth Amendment analyses was recognized in the Buchanan decision. In that case, the Court held that the defendant waived his Fifth Amendment privilege by raising a mental-status defense. 483 U.S., at 421 -424. This conclusion, however, did not suffice to resolve the defendant's separate Sixth Amendment claim. Thus, in a separate section of the opinion the Court went on to address the Sixth Amendment issue, concluding that on the facts of that case counsel knew what the scope of the examination would be before it took place. Id., at 424-425. Indeed, defense counsel himself requested the psychiatric examination at issue in Buchanan. Id., at 424. In contrast, in this case counsel did not know that the Coons and Parker examinations would involve the issue of future dangerousness. 3 </s> [492 U.S. 680, 686] </s> In deciding that petitioner waived his right to object to the Coons and Parker testimony, the Court of Criminal Appeals in its initial opinion concentrated almost exclusively on petitioner's Fifth Amendment claim to the exclusion of his separate contention that counsel should have been informed that he was to be examined on the issue of future dangerousness. Moreover, even after we remanded for further consideration in light of Satterwhite, a case that was premised exclusively on the Sixth Amendment, the court failed to give any further attention to the Sixth Amendment claim. Because the evidence of future dangerousness was taken in deprivation of petitioner's right to the assistance of counsel, and because there is not basis for concluding that petitioner waived his Sixth Amendment right, we now hold that Smith and Satterwhite control and, accordingly, reverse the judgment of the Court of Criminal Appeals. </s> It is so ordered. </s> Footnotes [Footnote 1 Under Texas law, a capital defendant may not be sentenced to death unless the State proves beyond a reasonable doubt that "there is a probability that the defendant [will] commit criminal acts of violence that [will] constitute a continuing threat to society." Tex. Code Crim. Proc. Ann., Art. 37.071(b)(2) (Vernon Supp. 1989). </s> [Footnote 2 We therefore have no occasion to address whether a waiver of the right to object to the use of psychiatric testimony at the guilt phase of a capital trial extends to the sentencing phase as well. </s> [Footnote 3 Unlike in Buchanan, our decision in Smith did not place petitioner's attorney on notice concerning the scope or intended use of the psychiatric examinations. Most significantly, although the Texas Court of Criminal Appeals only recently rendered a decision on his direct appeal, petitioner was tried and convicted before Smith was decided. Moreover, even if counsel had anticipated the Smith decision, he would only have been on notice that by raising a mental-status defense he might open the door to "use of psychological evidence by the prosecution in rebuttal." Buchanan, 483 U.S., at 425 (footnote omitted). Nothing in Smith, or any other decision [492 U.S. 680, 686] of this Court, suggests that a defendant opens the door to the admission of psychiatric evidence on future dangerousness by raising an insanity defense at the guilt stage of trial. </s> [492 U.S. 680, 1]

United States Supreme Court STEWART v. ABEND(1990) No. 88-2102 Argued: January 9, 1990Decided: April 24, 1990 </s> In 1945, author Cornell Woolrich agreed to assign the motion picture rights to several of his stories, including the one at issue, to petitioners' predecessor in interest. He also agreed to renew the copyrights in the stories at the appropriate time and to assign the same motion picture rights to the predecessor in interest for the 28-year renewal term provided by the Copyright Act of 1909. The film version of the story in question was produced and distributed in 1954. Woolrich died in 1968 without a surviving spouse or child and before he could obtain the rights in the renewal term for petitioners as promised. In 1969, his executor renewed the copyright in the story and assigned the renewal rights to respondent Abend. Apparently in reliance on Rohauer v. Killiam Shows, Inc., 551 F.2d 484 (CA2) - which held that the owner of the copyright in a derivative work may continue to use the existing derivative work according to the original grant from the author of the pre-existing work even if the grant of rights in the pre-existing work lapsed - petitioners subsequently re-released and publicly exhibited the film. Abend filed suit, alleging, among other things, that the re-release infringed his copyright in the story because petitioners' right to use the story during the renewal term lapsed when Woolrich died. The District Court granted petitioners' motions for summary judgment based on Rohauer and the "fair use" defense. The Court of Appeals reversed, rejecting the reasoning of Rohauer. Relying on Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 - which held that assignment of renewal rights by an author before the time for renewal arrives cannot defeat the right of the author's statutory successor to the renewal rights if the author dies before the right to renewal accrues - the court concluded that petitioners received from Woolrich only an expectancy in the renewal rights that never matured, and that his executor, as his statutory successor, was entitled to renew the copyright and to assign it to Abend. The court also determined that petitioners' use of Woolrich's story in their film was not fair use. </s> Held: </s> 1. The distribution and publication of a derivative work during the copyright renewal term of a pre-existing work incorporated into the [495 U.S. 207, 208] derivative work infringes the rights of the owner of the pre-existing work where the author of that work agreed to assign the rights in the renewal term to the derivative work's owner but died before the commencement of the renewal period and the statutory successor does not assign the right to use the pre-existing work to the owner of the derivative work. </s> Pp. 216-236. </s> (a) The renewal provisions of the 1909 and 1976 Copyright Acts, their legislative history, and the case law interpreting them establish that they were intended both to give the author a second chance to obtain fair remuneration for his creative efforts and to provide his family, or his executors absent surviving family, with a "new estate" if he died before the renewal period arrived. Under Miller Music, although the author may assign all of his exclusive rights in the copyrighted work by assigning the renewal copyright without limitation, the assignee holds nothing if the author dies before commencement of the renewal period. This being the rule with respect to all of the renewal rights, it follows, a fortiori, that assignees such as petitioners of the right to produce a derivative work or some other portion of the renewal rights also hold nothing but an unfulfilled and unenforceable expectancy if the author dies before the renewal period, unless the assignees secure a transfer of the renewal rights from the author's statutory successor. Pp. 216-221. </s> (b) Petitioners' contention that any right the owner of rights in the pre-existing work might have had to sue for infringement that occurs during the renewal term is extinguished by creation of the new work is not supported by any express provision of the Act nor by the rationale as to the scope of protection achieved in a derivative work, and is contrary to the axiomatic principle that a person may exploit only such copyrighted literary material as he either owns or is licensed to use. Section 6 of the 1909 Act, 17 U.S.C. 7 (1976 ed.), and 17 U.S.C. 103(b) (1988 ed.), as set forth in the 1976 Act, made explicit the well-settled rule that the owner of a derivative work receives copyright protection only for the material contributed by him and to the extent he has obtained a grant of rights in the pre-existing work. Pp. 221-224. </s> (c) Nor is petitioners' position supported by the termination provisions of the 1976 Act, which, for works existing in their original or renewal terms as of January 1, 1978, empowered the author to gain an additional 19 years' copyright protection by terminating any grant of rights at the end of the renewal term, except, under 17 U.S.C. 304(c)(6)(A)d (1988 ed.), the right to use a derivative work for which the owner of the derivative work has held valid rights in the original and renewal terms. No overarching policy preventing authors of pre-existing works from blocking distribution of derivative works may be inferred from 304(c) (6)(A), which was part of a compromise [495 U.S. 207, 209] between competing special interests. In fact, the plain language of the section indicates that Congress assumed that the owner of the pre-existing work continued to possess the right to sue for infringement even after incorporation of that work into the derivative work, since, otherwise, Congress would not have explicitly withdrawn the right to terminate use rights in the limited circumstances contemplated by the section. Pp. 224-227. </s> (d) Thus, the Rohauer theory is supported by neither the 1909 nor the 1976 Act. Even if it were, however, the "rule" of that case would make little sense when applied across the derivative works spectrum. For example, although the contribution by the derivative author of a condensed book might be little as compared to that of the original author, publication of the book would not infringe the pre-existing work under the Rohauer "rule" even though the derivative author has no license or grant of rights in the pre-existing work. In fact, the Rohauer "rule" is considered to be an interest-balancing approach. Pp. 227-228. </s> (e) Petitioners' contention that the rule applied here will undermine the Copyright Act's policy of ensuring the dissemination of creative works is better addressed by Congress than the courts. In attempting to fulfill its constitutional mandate to "secur[e] for limited Times to Authors . . . the exclusive Right to their Respective Writings," Congress has created a balance between the artist's right to control the work during the term of the copyright protection and the public's need for access to creative works. Absent an explicit statement of congressional intent that the rights in the renewal term of an owner of a pre-existing work are extinguished when his work is incorporated into another work, it is not the role of this Court to alter the delicate balance Congress has labored to achieve. Pp. 228-230. </s> (f) Section 6 of the 1909 Act, 17 U.S.C. 7 (1976 ed.) - which provides that derivative works when produced with the consent of the copyright proprietor of the pre-existing work "shall be regarded as new works subject to copyright . . .; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed . . .," or be construed to affect the copyright status of the original work - does not, as the dissent contends, give the original author the power to sell the rights to make a derivative work that upon creation and copyright would be completely independent of the original work. This assertion is derived from three erroneous premises. First, since the plain meaning of the "force or validity" clause is that the copyright in the "matter employed" - i. e., the pre-existing work when it is incorporated into the derivative work - is not abrogated by publication of the derivative work, the dissent misreads 7 when it asserts that only the copyright in the "original work" survives the author's conveyance of derivative rights. Second, the substitution of "publication" for [495 U.S. 207, 210] "copyright" in the final version of the force or validity clause does not, as the dissent contends, establish that it was the publication of the derivative work, and not the copyright, that was not to "affect . . . any subsisting copyright." Since publication of a work without proper notice sent it into the public domain under the 1909 Act, the language change was necessary to ensure that the publication of a derivative work without proper notice, including smaller portions that had not been previously published and separately copyrighted, would not result in those sections moving into the public domain. Third, the dissent errs in interpreting 3 of the 1909 Act - which provides that a copyright protects all copyrightable component parts of a work and "all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright" - as indicating, when read with 7, that the copyright on derivative work extends to both the new material and that "in which the copyright is already subsisting," such that the derivative work proprietor has the right to publish and distribute the entire work absent permission from the owner of the pre-existing work. When 7 states that derivative works "shall be regarded as new works subject to copyright," it simply confirms that 3's provision that one can obtain copyright in a work, parts of which were already copyrighted, extends to derivative works. More important, 7's second clause merely clarifies what might have been otherwise unclear - that the 3 principle of preservation of the duration or scope of the subsisting copyright applies to derivative works, and that neither the scope of the copyright in the matter employed nor the duration of the copyright in the derivative work is undermined by publication of the derivative work. Pp. 230-236. </s> 2. Petitioners' unauthorized use of Woolrich's story in their film does not constitute a noninfringing "fair use." The film does not fall into any of the categories of fair use enumerated in 17 U.S.C. 107 (1988 ed.); e. g., criticism, comment, news reporting, teaching, scholarship, or research. Nor does it meet any of the nonexclusive criteria that 107 requires a court to consider. First, since petitioners received $12 million from the film's re-release during the renewal term, their use was commercial rather than educational. Second, the nature of the copyrighted work is fictional and creative rather than factual. Third, the story was a substantial portion of the film, which expressly used its unique setting, characters, plot, and d sequence of events. Fourth, and most important, the record supports the conclusion that re-release of the film impinged on Abend's ability to market new versions of the story. Pp. 236-238. </s> 863 F.2d 1465, affirmed and remanded. [495 U.S. 207, 211] </s> O'CONNOR, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and KENNEDY, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 238. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 239. </s> Louis P. Petrich argued the cause for petitioners. With him on the briefs was Gary L. Swingle. </s> Peter J. Anderson argued the cause for respondent. With him on the briefs was James P. Tierney. * </s> [Footnote * Stephen A. Kroft filed a brief for Columbia Pictures Industries, Inc., et al. as amici curiae urging reversal. </s> Briefs of amici curiae urging affirmance were filed for the Register of Copyrights by Dorothy Schrader, Ralph Oman, and William J. Roberts, Jr.; for the Committee for Literary Property Studies by Irwin Karp and Barbara Ringer; and for the Songwriters Guild of America by David Blasband. </s> JUSTICE O'CONNOR delivered the opinion of the Court. </s> The author of a pre-existing work may assign to another the right to use it in a derivative work. In this case the author of a pre-existing work agreed to assign the rights in his renewal copyright term to the owner of a derivative work, but died before the commencement of the renewal period. The question presented is whether the owner of the derivative work infringed the rights of the successor owner of the pre-existing work by continued distribution and publication of the derivative work during the renewal term of the pre-existing work. </s> I </s> Cornell Woolrich authored the story "It Had to Be Murder," which was first published in February 1942 in Dime Detective Magazine. The magazine's publisher, Popular Publications, Inc., obtained the rights to magazine publication of the story and Woolrich retained all other rights. Popular Publications obtained a blanket copyright for the issue of Dime Detective Magazine in which "It Had to Be Murder" was published. [495 U.S. 207, 212] </s> The Copyright Act of 1909 (1909 Act), 35 Stat. 1075, 17 U.S.C. 1 et seq. (1976 ed.), provided authors a 28-year initial term of copyright protection plus a 28-year renewal term. See 17 U.S.C. 24 (1976 ed.). In 1945, Woolrich agreed to assign the rights to make motion picture versions of six of his stories, including "It Had to Be Murder," to B. G. De Sylva Productions for $9,250. He also agreed to renew the copyrights in the stories at the appropriate time and to assign the same motion picture rights to De Sylva Productions for the 28-year renewal term. In 1953, actor Jimmy Stewart and director Alfred Hitchcock formed a production company, Patron, Inc., which obtained the motion picture rights in "It Had to Be Murder" from De Sylva's successors in interest for $10,000. </s> In 1954, Patron, Inc., along with Paramount Pictures, produced and distributed "Rear Window," the motion picture version of Woolrich's story "It Had to Be Murder." Woolrich died in 1968 before he could obtain the rights in the renewal term for petitioners as promised and without a surviving spouse or child. He left his property to a trust administered by his executor, Chase Manhattan Bank, for the benefit of Columbia University. On December 29, 1969, Chase Manhattan Bank renewed the copyright in the "It Had to Be Murder" story pursuant to 17 U.S.C. 24 (1976 ed.). Chase Manhattan assigned the renewal rights to respondent Abend for $650 plus 10% of all proceeds from exploitation of the story. </s> "Rear Window" was broadcast on the ABC television network in 1971. Respondent then notified petitioners Hitchcock (now represented by cotrustees of his will), Stewart, and MCA Inc., the owners of the "Rear Window" motion picture and renewal rights in the motion picture, that he owned the renewal rights in the copyright and that their distribution of the motion picture without his permission infringed his copyright in the story. Hitchcock, Stewart, and MCA nonetheless entered into a second license with ABC to rebroadcast [495 U.S. 207, 213] the motion picture. In 1974, respondent filed suit against these same petitioners, and others, in the United States District Court for the Southern District of New York, alleging copyright infringement. Respondent dismissed his complaint in return for $25,000. </s> Three years later, the United States Court of Appeals for the Second Circuit decided Rohauer v. Killiam Shows, Inc., 551 F.2d 484, cert. denied, 431 U.S. 949 (1977), in which it held that the owner of the copyright in a derivative work 1 may continue to use the existing derivative work according to the original grant from the author of the pre-existing work even if the grant of rights in the pre-existing work lapsed. 551 F.2d, at 494. Several years later, apparently in reliance on Rohauer, petitioners re-released the motion picture in a variety of media, including new 35 and 16 millimeter prints for theatrical exhibition in the United States, videocassettes, and videodiscs. They also publicly exhibited the motion picture in theaters, over cable television, and through videodisc and videocassette rentals and sales. </s> Respondent then brought the instant suit in the United States District Court for the Central District of California against Hitchcock, Stewart, MCA, and Universal Film Exchanges, a subsidiary of MCA and the distributor of the motion picture. Respondent's complaint alleges that the re-release of the motion picture infringes his copyright in the story because petitioners' right to use the story during the renewal term lapsed when Woolrich died before he could register for the renewal term and transfer his renewal rights to them. Respondent also contends that petitioners have interfered with his rights in the renewal term of the story in other ways. He alleges that he sought to contract with Home Box [495 U.S. 207, 214] Office (HBO) to produce a play and television version of the story, but that petitioners wrote to him and HBO stating that neither he nor HBO could use either the title, "Rear Window" or "It Had to Be Murder." Respondent also alleges that petitioners further interfered with the renewal copyright in the story by attempting to sell the right to make a television sequel and that the re-release of the original motion picture itself interfered with his ability to produce other derivative works. </s> Petitioners filed motions for summary judgment, one based on the decision in Rohauer, supra, and the other based on alleged defects in the story's copyright. Respondent moved for summary judgment on the ground that petitioners' use of the motion picture constituted copyright infringement. Petitioners responded with a third motion for summary judgment based on a "fair use" defense. The District Court granted petitioners' motions for summary judgment based on Rohauer and the fair use defense and denied respondent's motion for summary judgment, as well as petitioners' motion for summary judgment alleging defects in the story's copyright. Respondent appealed to the United States Court of Appeals for the Ninth Circuit and petitioners cross-appealed. </s> The Court of Appeals reversed, holding that respondent's copyright in the renewal term of the story was not defective. Abend v. MCA, Inc., 863 F.2d 1465, 1472 (1988). The issue before the court, therefore, was whether petitioners were entitled to distribute and exhibit the motion picture without respondent's permission despite respondent's valid copyright in the pre-existing story. Relying on the renewal provision of the 1909 Act, 17 U.S.C. 24 (1976 ed.), respondent argued before the Court of Appeals that because he obtained from Chase Manhattan Bank, the statutory successor, the renewal right free and clear of any purported assignments of any interest in the renewal copyright, petitioners' distribution and publication of "Rear Window" without authorization infringed his renewal copyright. Petitioners responded that [495 U.S. 207, 215] they had the right to continue to exploit "Rear Window" during the 28-year renewal period because Woolrich had agreed to assign to petitioners' predecessor in interest the motion picture rights in the story for the renewal period. </s> Petitioners also relied, as did the District Court, on the decision in Rohauer v. Killiam Shows, Inc., supra. In Rohauer, the Court of Appeals for the Second Circuit held that statutory successors to the renewal copyright in a pre-existing work under 24 could not "depriv[e] the proprietor of the derivative copyright of a right . . . to use so much of the underlying copyrighted work as already has been embodied in the copyrighted derivative work, as a matter of copyright law." Id., at 492. The Court of Appeals in the instant case rejected this reasoning, concluding that even if the pre-existing work had been incorporated into a derivative work, use of the pre-existing work was infringing unless the owner of the derivative work held a valid grant of rights in the renewal term. </s> The court relied on Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960), in which we held that assignment of renewal rights by an author before the time for renewal arrives cannot defeat the right of the author's statutory successor to the renewal rights if the author dies before the right to renewal accrues. An assignee of the renewal rights takes only an expectancy: "Until [the time for registration of renewal rights] arrives, assignees of renewal rights take the risk that the rights acquired may never vest in their assignors. A purchaser of such an interest is deprived of nothing. Like all purchasers of contingent interests, he takes subject to the possibility that the contingency may not occur." Id., at 378. The Court of Appeals reasoned that "[i]f Miller Music makes assignment of the full renewal rights in the underlying copyright unenforceable when the author dies before effecting renewal of the copyright, then, a fortiori, an assignment of part of the rights in the underlying work, the right to produce a movie version, must [495 U.S. 207, 216] also be unenforceable if the author dies before effecting renewal of the underlying copyright." 863 F.2d, at 1476. Finding further support in the legislative history of the 1909 Act and rejecting the Rohauer court's reliance on the equities and the termination provisions of the 1976 Act, 17 U.S.C. 203(b)(1), 304(c)(6)(A), the Court of Appeals concluded that petitioners received from Woolrich only an expectancy in the renewal rights that never matured; upon Woolrich's death, Woolrich's statutory successor, Chase Manhattan Bank, became "entitled to a renewal and extension of the copyright," which Chase Manhattan secured "within one year prior to the expiration of the original term of copyright." 17 U.S.C. 24 (1976 ed.). Chase Manhattan then assigned the existing rights in the copyright to respondent. </s> The Court of Appeals also addressed at length the proper remedy, an issue not relevant to the issue on which we granted certiorari. We granted certiorari to resolve the conflict between the decision in Rohauer, supra, and the decision below. 493 U.S. 807 (1989). Petitioners do not challenge the Court of Appeals' determination that respondent's copyright in the renewal term is valid, and we express no opinion regarding the Court of Appeals' decision on this point. </s> II </s> A </s> Petitioners would have us read into the Copyright Act a limitation on the statutorily created rights of the owner of an underlying work. They argue in essence that the rights of the owner of the copyright in the derivative use of the pre-existing work are extinguished once it is incorporated into the derivative work, assuming the author of the pre-existing work has agreed to assign his renewal rights. Because we find no support for such a curtailment of rights in either the 1909 Act or the 1976 Act, or in the legislative history of either, we affirm the judgment of the Court of Appeals. [495 U.S. 207, 217] </s> Petitioners and amicus Register of Copyrights assert, as the Court of Appeals assumed, that 23 of the 1909 Act, 17 U.S.C. 24 (1976 ed.), and the case law interpreting that provision, directly control the disposition of this case. Respondent counters that the provisions of the 1976 Act control, but that the 1976 Act re-enacted 24 in 304 and, therefore, the language and judicial interpretation of 24 are relevant to our consideration of this case. Under either theory, we must look to the language of and case law interpreting 24. </s> The right of renewal found in 24 provides authors a second opportunity to obtain remuneration for their works. Section 24 provides: </s> "[T]he author of [a copyrighted] work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright." 17 U.S.C. 24 (1976 ed.) </s> Since the earliest copyright statute in this country, the copyright term of ownership has been split between on original term and a renewal term. Originally, the renewal was intended merely to serve as an extension of the original term; at the end of the original term, the renewal could be effected and claimed by the author, if living, or by the author's executors, administrators, or assigns. See Copyright Act of May 31, 1790, ch. XV, 1, 1 Stat. 124. In 1831, Congress altered the provision so that the author could assign his contingent interest in the renewal term, but could not, through his assignment, divest the rights of his widow or children in the renewal term. See Copyright Act of February 3, 1831, ch. XVI, 4 Stat. 436; see also G. Curtis, Law of Copyright 235 [495 U.S. 207, 218] (1847). The 1831 renewal provisions created "an entirely new policy, completely dissevering the title, breaking up the continuance . . . and vesting an absolutely new title eo nomine in the persons designated." White-Smith Music Publishing Co. v. Goff, 187 F. 247, 250 (CA1 1911). In this way, Congress attempted to give the author a second chance to control and benefit from his work. Congress also intended to secure to the author's family the opportunity to exploit the work if the author died before he could register for the renewal term. See Bricker, Renewal and Extension of Copyright, 29 S. Cal. L. Rev. 23, 27 (1955) ("The renewal term of copyright is the law's second chance to the author and his family to profit from his mental labors"). "The evident purpose of [the renewal provision] is to provide for the family of the author after his death. Since the author cannot assign his family's renewal rights, [it] takes the form of a compulsory bequest of the copyright to the designated persons." De Sylva v. Ballentine, 351 U.S. 570, 582 (1956). See Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 651 (1943) (if at the end of the original copyright period, the author is not living, "his family stand[s] in more need of the only means of subsistence ordinarily left to them" (citation omitted)). </s> In its debates leading up to the Copyright Act of 1909, Congress elaborated upon the policy underlying a system comprised of an original term and a completely separate renewal term. See G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (CA2) (the renewal right "creates a new estate, and the . . . cases which have dealt with the subject assert that the new estate is clear of all rights, interests or licenses granted under the original copyright"), cert. denied, 342 U.S. 849 (1951). "It not infrequently happens that the author sells his copyright outright to a publisher for a comparatively small sum." H. R. Rep. No. 2222, 60th Cong., 2d Sess., 14 (1909). The renewal term permits the author, originally in a poor bargaining position, to renegotiate [495 U.S. 207, 219] the terms of the grant once the value of the work has been tested. "[U]nlike real property and other forms of personal property, [a copyright] is by its very nature incapable of accurate monetary evaluation prior to its exploitation." 2 M. Nimmer & D. Nimmer, Nimmer on Copyright 9.02, p. 9-23 (1989) (hereinafter Nimmer). "If the work proves to be a great success and lives beyond the term of twenty-eight years, . . . it should be the exclusive right of the author to take the renewal term, and the law should be framed . . . so that [the author] could not be deprived of that right." H. R. Rep. No. 2222, supra, at 14. With these purposes in mind, Congress enacted the renewal provision of the Copyright Act of 1909, 17 U.S.C. 24 (1976 ed.). With respect to works in their original or renewal term as of January 1, 1978, Congress retained the two-term system of copyright protection in the 1976 Act. See 17 U.S.C. 304(a) and (b) (1988 ed.) (incorporating language of 17 U.S.C. 24 (1976 ed.)). </s> Applying these principles in Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960), this Court held that when an author dies before the renewal period arrives, his executor is entitled to the renewal rights, even though the author previously assigned his renewal rights to another party. "An assignment by an author of his renewal rights made before the original copyright expires is valid against the world, if the author is alive at the commencement of the renewal period. [Fred] Fisher Co. v. [M.] Witmark & Sons, 318 U.S. 643 , so holds." Id., at 375. If the author dies before that time, the "next of kin obtain the renewal copyright free of any claim founded upon an assignment made by the author in his lifetime. These results follow not because the author's assignment is invalid but because he had only an expectancy to assign; and his death, prior to the renewal period, terminates his interest in the renewal which by 24 vests in the named classes." Ibid. The legislative history of the 1909 Act echoes this view: "The right of renewal is contingent. It does not vest until the end [of the original term]. [495 U.S. 207, 220] If [the author] is alive at the time of renewal, then the original contract may pass it, but his widow or children or other persons entitled would not be bound by that contract." 5 Legislative History of the 1909 Copyright Act, Park K, p. 77 (E. Brylawski & A. Goldman eds. 1976) (statement of Mr. Hale). 2 Thus, the renewal provisions were intended to give the author a second chance to obtain fair remuneration for his creative efforts and to provide the author's family a "new estate" if the author died before the renewal period arrived. </s> An author holds a bundle of exclusive rights in the copyrighted work, among them the right to copy and the right to incorporate the work into derivative works. 3 By assigning the renewal copyright in the work without limitation, as in Miller Music, the author assigns all of these rights. After Miller Music, if the author dies before the commencement of the renewal period, the assignee holds nothing. If the assignee of all of the renewal rights holds nothing upon the death of the assignor before arrival of the renewal period, [495 U.S. 207, 221] then, a fortiori, the assignee of a portion of the renewal rights, e. g., the right to produce a derivative work, must also hold nothing. See also Brief for Register of Copyrights as Amicus Curiae 22 ("[A]ny assignment of renewal rights made during the original term is void if the author dies before the renewal period"). Therefore, if the author dies before the renewal period, then the assignee may continue to use the original work only if the author's successor transfers the renewal rights to the assignee. This is the rule adopted by the Court of Appeals below and advocated by the Register of Copyrights. See 863 F.2d, at 1478; Brief for Register of Copyrights as Amicus Curiae 22. Application of this rule to this case should end the inquiry. Woolrich died before the commencement of the renewal period in the story, and, therefore, petitioners hold only an unfulfilled expectancy. Petitioners have been "deprived of nothing. Like all purchasers of contingent interests, [they took] subject to the possibility that the contingency may not occur." Miller Music, supra, at 378. </s> B </s> The reason that our inquiry does not end here, and that we granted certiorari, is that the Court of Appeals for the Second Circuit reached a contrary result in Rohauer v. Killiam Shows, Inc., 551 F.2d 484 (1977). Petitioners' theory is drawn largely from Rohauer. The Court of Appeals in Rohauer attempted to craft a "proper reconciliation" between the owner of the pre-existing work, who held the right to the work pursuant to Miller Music, and the owner of the derivative work, who had a great deal to lose if the work could not be published or distributed. 551 F.2d, at 490. Addressing a case factually similar to this case, the court concluded that even if the death of the author caused the renewal rights in the pre-existing work to revert to the statutory successor, the owner of the derivative work could continue to exploit that work. The court reasoned that the 1976 Act and the relevant precedents did not preclude such a result [495 U.S. 207, 222] and that it was necessitated by a balancing of the equities: </s> "[T]he equities lie preponderantly in favor of the proprietor of the derivative copyright. In contrast to the situation where an assignee or licensee has done nothing more than print, publicize and distribute a copyrighted story or novel, a person who with the consent of the author has created an opera or a motion picture film will often have made contributions literary, musical and economic, as great as or greater than the original author. . . . [T]he purchaser of derivative rights has no truly effective way to protect himself against the eventuality of the author's death before the renewal period since there is no way of telling who will be the surviving widow, children or next of kin or the executor until that date arrives." Id., at 493. </s> The Court of Appeals for the Second Circuit thereby shifted the focus from the right to use the pre-existing work in a derivative work to a right inhering in the created derivative work itself. By rendering the renewal right to use the original work irrelevant, the court created an exception to our ruling in Miller Music and, as petitioners concede, created an "intrusion" on the statutorily created rights of the owner of the pre-existing work in the renewal term. Brief for Petitioners 33. </s> Though petitioners do not, indeed could not, argue that its language expressly supports the theory they draw from Rohauer, they implicitly rely on 6 of the 1909 Act, 17 U.S.C. 7 (1976 ed.), which states that "dramatizations . . . of copyrighted works when produced with the consent of the proprietor of the copyright in such works . . . shall be regarded as new works subject to copyright under the provisions of this title." Petitioners maintain that the creation of the "new," i. e., derivative, work extinguishes any right the owner of rights in the pre-existing work might have had to sue for infringement that occurs during the renewal term. [495 U.S. 207, 223] </s> We think, as stated in Nimmer, that "[t]his conclusion is neither warranted by any express provision of the Copyright Act, nor by the rationale as to the scope of protection achieved in a derivative work. It is moreover contrary to the axiomatic copyright principle that a person may exploit only such copyrighted literary material as he either owns or is licensed to use." 1 Nimmer 3.07[A], pp. 3-23 to 3-24 (footnotes omitted). The aspects of a derivative work added by the derivative author are that author's property, but the element drawn from the pre-existing work remains on grant from the owner of the pre-existing work. See Russell v. Price, 612 F.2d 1123, 1128 (CA9 1979) (reaffirming "well-established doctrine that a derivative copyright protects only the new material contained in the derivative work, not the matter derived from the underlying work"), cert. denied, 446 U.S. 952 (1980); see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547 (1985) ("The copyright is limited to those aspects of the work - termed `expression' - that display the stamp of the author's originality"). So long as the pre-existing work remains out of the public domain, its use is infringing if one who employs the work does not have a valid license or assignment for use of the pre-existing work. Russell v. Price, supra, at 1128 ("[E]stablished doctrine prevents unauthorized copying or other infringing use of the underlying work or any part of that work contained in the derivative product so long as the underlying work itself remains copyrighted"). It is irrelevant whether the pre-existing work is inseparably intertwined with the derivative work. See Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20 (CA2 1976) ("[C]opyright in the underlying script survives intact despite the incorporation of that work into a derivative work"). Indeed, the plain language of 7 supports the view that the full force of the copyright in the pre-existing work is preserved despite incorporation into the derivative work. See 17 U.S.C. 7 (1976 ed.) (publication of the derivative work "shall not affect the force or validity of [495 U.S. 207, 224] any subsisting copyright upon the matter employed"); see also 17 U.S.C. 3 (1976 ed.) (copyright protection of a work extends to "all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright"). This well-settled rule also was made explicit in the 1976 Act: </s> "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the pre-existing material." 17 U.S.C. 103(b). </s> See also B. Ringer, Renewal of Copyright (1960), reprinted as Copyright Law Revision Study No. 31, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d. Sess., 169-170 (1961) ("[O]n the basis of judicial authority, legislative history, and the opinions of the commentators, . . . someone cannot avoid his obligations to the owner of a renewal copyright merely because he created and copyrighted a `new version' under a license or assignment which terminated at the end of the first term") (footnotes omitted). </s> Properly conceding there is no explicit support for their theory in the 1909 Act, its legislative history, or the case law, petitioners contend, as did the court in Rohauer, that the termination provisions of the 1976 Act, while not controlling, support their theory of the case. For works existing in their original or renewal terms as of January 1, 1978, the 1976 Act added 19 years to the 1909 Act's provision of 28 years of initial copyright protection and 28 years of renewal protection. See 17 U.S.C. 304(a) and (b). For those works, the author has the power to terminate the grant of rights at the end of the renewal term and, therefore, to gain the benefit of that additional 19 years of protection. See [495 U.S. 207, 225] 304(c). In effect, the 1976 Act provides a third opportunity for the author to benefit from a work in its original or renewal term as of January 1, 1978. Congress, however, created one exception to the author's right to terminate: The author may not, at the end of the renewal term, terminate the right to use a derivative work for which the owner of the derivative work has held valid rights in the original and renewal terms. See 304(c)(6)(A). The author, however, may terminate the right to create new derivative works. Ibid. For example, if petitioners held a valid copyright in the story throughout the original and renewal terms, and the renewal term in "Rear Window" were about to expire, petitioners could continue to distribute the motion picture even if respondent terminated the grant of rights, but could not create a new motion picture version of the story. Both the court in Rohauer and petitioners infer from this exception to the right to terminate an intent by Congress to prevent authors of pre-existing works from blocking distribution of derivative works. In other words, because Congress decided not to permit authors to exercise a third opportunity to benefit from a work incorporated into a derivative work, the Act expresses a general policy of undermining the author's second opportunity. We disagree. </s> The process of compromise between competing special interests leading to the enactment of the 1976 Act undermines any such attempt to draw an overarching policy out of 304(c)(6)(A), which only prevents termination with respect to works in their original or renewal copyright terms as of January 1, 1978, and only at the end of the renewal period. See Ringer, First Thoughts on the Copyright Act of 1976, 13 Copyright 187, 188-189 (1977) (each provision of 1976 Act was drafted through series of compromises between interested parties). More specifically, 304(c) </s> "was part of a compromise package involving the controversial and intertwined issues of initial ownership, duration of copyright, and reversion of rights. The Register, [495 U.S. 207, 226] convinced that the opposition . . . would scuttle the proposed legislation, drafted a number of alternative proposals. . . . </s> "Finally, the Copyright Office succeeded in urging negotiations among representatives of authors, composers, book and music publishers, and motion picture studios that produced a compromise on the substance and language of several provisions. </s> . . . . . </s> "Because the controversy surrounding the provisions disappeared once the parties reached a compromise, however, Congress gave the provisions little or no detailed consideration. . . . Thus, there is no evidence whatsoever of what members of Congress believed the language to mean." Litman, Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857, 865-868 (1987) (footnotes omitted). </s> In fact, if the 1976 Act's termination provisions provide any guidance at all in this case, they tilt against petitioners' theory. The plain language of the termination provision itself indicates that Congress assumed that the owner of the pre-existing work possessed the right to sue for infringement even after incorporation of the pre-existing work in the derivative work. </s> "A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant." 304(c)(6)(A) (emphasis added). </s> Congress would not have stated explicitly in 304(c)(6)(A) that, at the end of the renewal term, the owner of the rights in the pre-existing work may not terminate use rights in existing derivative works unless Congress had assumed that [495 U.S. 207, 227] the owner continued to hold the right to sue for infringement even after incorporation of the pre-existing work into the derivative work. Cf. Mills Music, Inc. v. Snyder, 469 U.S. 153, 164 (1985) ( 304(c)(6)(A) "carves out an exception from the reversion of rights that takes place when an author exercises his right to termination"). </s> Accordingly, we conclude that neither the 1909 Act nor the 1976 Act provides support for the theory set forth in Rohauer. And even if the theory found some support in the statute or the legislative history, the approach set forth in Rohauer is problematic. Petitioners characterize the result in Rohauer as a bright-line "rule." The Court of Appeals in Rohauer, however, expressly implemented policy considerations as a means of reconciling what it viewed as the competing interests in that case. See 551 F.2d, at 493-494. While the result in Rohauer might make some sense in some contexts, it makes no sense in others. In the case of a condensed book, for example, the contribution by the derivative author may be little, while the contribution by the original author is great. Yet, under the Rohauer "rule," publication of the condensed book would not infringe the pre-existing work even though the derivative author has no license or valid grant of rights in the pre-existing work. See Brief for Committee for Literary Property Studies as Amicus Curiae 29-31; see also Brief for Songwriters Guild of America as Amicus Curiae 11-12 (policy reasons set forth in Rohauer make little sense when applied to musical compositions). Thus, even if the Rohauer "rule" made sense in terms of policy in that case, it makes little sense when it is applied across the derivative works spectrum. Indeed, in the view of the commentators, Rohauer did not announce a "rule," but rather an "interest-balancing approach." See Jaszi. When Works Collide: Derivative Motion Pictures, Underlying Rights, and the Public Interest, 28 UCLA L. Rev. 715. 758-761 (1981); Note, Derivative Copyright and the 1909 [495 U.S. 207, 228] Act - New Clarity or Confusion?, 44 Brooklyn L. Rev. 905, 926-927 (1978). </s> Finally, petitioners urge us to consider the policies underlying the Copyright Act. They argue that the rule announced by the Court of Appeals will undermine one of the policies of the Act - the dissemination of creative works - by leading to many fewer works reaching the public. Amicus Columbia Pictures asserts that "[s]ome owners of underlying work renewal copyrights may refuse to negotiate, preferring instead to retire their copyrighted works, and all derivative works based thereon, from public use. Others may make demands - like respondent's demand for 50% of petitioners' future gross proceeds in excess of advertising expenses . . . - which are so exorbitant that a negotiated economic accommodation will be impossible." Brief for Columbia Pictures et al. as Amici Curiae 21. These arguments are better addressed by Congress than the courts. </s> In any event, the complaint that respondent's monetary request in this case is so high as to preclude agreement fails to acknowledge that an initially high asking price does not preclude bargaining. Presumably, respondent is asking for a share in the proceeds because he wants to profit from the distribution of the work, not because he seeks suppression of it. </s> Moreover, although dissemination of creative works is a goal of the Copyright Act, the Act creates a balance between the artist's right to control the work during the term of the copyright protection and the public's need for access to creative works. The copyright term is limited so that the public will not be permanently deprived of the fruits of an artist's labors. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (the limited monopoly conferred by the Copyright Act "is intended to motivate creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired"). But nothing in the copyright statutes would [495 U.S. 207, 229] prevent an author from hoarding all of his works during the term of the copyright. In fact, this Court has held that a copyright owner has the capacity arbitrarily to refuse to license one who seeks to exploit the work. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932). </s> The limited monopoly granted to the artist is intended to provide the necessary bargaining capital to garner a fair price for the value of the works passing into public use. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S., at 546 ("The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors"); Register of Copyrights, Copyright Law Revision, 87th Cong., 1st Sess., 6 (Comm. Print 1961) ("While some limitations and conditions on copyright are essential in the public interest, they should not be so burdensome and strict as to deprive authors of their just reward. . . . [T]heir rights should be broad enough to give them a fair share of the revenue to be derived from the market for their works"). When an author produces a work which later commands a higher price in the market than the original bargain provided, the copyright statute is designed to provide the author the power to negotiate for the realized value of the work. That is how the separate renewal term was intended to operate. See Ringer, Renewal of Copyright (1960), reprinted as Copyright Law Revision Study No. 31. prepared for the Senate Committee on the Judiciary, 86th Cong., 2d. Sess., 125 (1961) ("Congress wanted to give [the author] an opportunity to benefit from the success of his work and to renegotiate disadvantageous bargains . . . made at a time when the value of the work [wa]s unknown or conjectural and the author . . . necessarily in a poor bargaining position"). At heart, petitioners' true complaint is that they will have to pay more for the use of works they have employed in creating their own works. But such a result was contemplated by Congress and is consistent with the goals of the Copyright Act. [495 U.S. 207, 230] </s> With the Copyright Act of 1790, Congress provided an initial term of protection plus a renewal term that did not survive the author. In the Copyright Act of 1831, Congress devised a completely separate renewal term that survived the death of the author so as to create a "new estate" and to benefit the author's family, and, with the passage of the 1909 Act, his executors. See supra, at 217-219. The 1976 Copyright Act provides a single, fixed term, but provides an inalienable termination right. See 17 U.S.C. 203, 302. This evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces in attempting to "secur[e] for limited Times to Authors . . . the exclusive Right to their respective Writings." U.S. Const., Art. I, 8, cl. 8. Absent an explicit statement of congressional intent that the rights in the renewal term of an owner of a pre-existing work are extinguished upon incorporation of his work into another work, it is not our role to alter the delicate balance Congress has labored to achieve. </s> C </s> In a creative, though ultimately indefensible, exposition of the 1909 Act, the dissent attempts to breathe life into petitioners' suggestion that the derivative work is somehow independent of the pre-existing work. Although no Court of Appeals in the 81 years since enactment of the 1909 Act has held as much, and although the petitioners have not argued the point, the dissent contends that " 7 was intended to . . . give the original author the power to sell the right to make a derivative work that upon creation and copyright would be completely independent of the original work." Post, at 244; see also post, at 248. This assertion, far removed from the more modest holding of Rohauer, is derived from three erroneous premises. </s> First, we think the dissent misreads 7, which provides: </s> "Compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of [495 U.S. 207, 231] works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed of any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works." 17 U.S.C. 7 (1976 ed.). </s> The provision consists of one sentence with two clauses divided by a semicolon. The first clause lists the types of works that may be derivative works, explains that one may incorporate either copyrighted or public domain works into a derivative work, and further explains that the derivative work itself is copyrightable. The clause also expressly limits incorporation of copyrighted works to instances where the owner of the pre-existing work "consents." </s> The second clause explains what publication of the new work does not portend: Publication of the derivative work does not "affect the force or validity of any subsisting copyright upon the matter employed" (emphasis added); publication of the derivative work does not mean that use of the original work in other works is precluded; and publication does not mean that a copyright in the original work shall be secured, e. g., if the work was in the public domain, or extended, as where the original work was copyrighted before the date that the derivative work is copyrighted. The plain meaning of the italicized sentence is that the copyright in the "matter employed" - the pre-existing work when it is incorporated into the derivative work - is not abrogated by publication of the new work. The succeeding phrases preserve the copyright status of the original work: Publication does not operate to prohibit other uses of the original work or to [495 U.S. 207, 232] "secure or extend copyright in such original works." Cf. post, at 249. </s> The dissent fails to heed 7's preservation of copyright in both the "matter employed" and the "original work." Under its theory, only the latter is preserved. See post, at 253 ("author's right to sell his derivative rights is exercised when consent is conveyed and completed when the derivative work is copyrighted"); post, at 250 (underlying work "owner . . . retains full dominion and control over all other means of exploiting" underlying work). In light of 7's explicit preservation of the "force and validity" of the copyright in the "matter employed," the dissent is clearly wrong when it asserts that 7 was intended to create a work that is "completely independent" of the pre-existing work. Post, at 245. The dissent further errs when it unjustifiably presumes that 7 "limit[s] the enforceability of the derivative copyright." Post, at 249. </s> According to the dissent, 7 requires the derivative work author to obtain "consent of the proprietor of the copyright" in the pre-existing work, because " 7 . . . derogate[s] in some manner from the underlying author's copyright rights." Post, at 241. The more natural inference to be drawn from the requirement of consent is that Congress simply intended that a derivative work author may not employ a copyrighted work without the author's permission, although of course he can obtain copyright protection for his own original additions. </s> The text of 7 reveals that it is not "surplusage." Post, at 244. It does not merely stand for the proposition that authors receive copyright protection for their original additions. It also limits the effect of the publication of the derivative work on the underlying work. See supra, at 231 and this page. Nowhere else in the Act does Congress address the treatment to be afforded derivative works. The principle that additions and improvements to existing works of art receive copyright protection was settled at the time the 1909 Act was enacted, a principle that Congress simply codified in 7. [495 U.S. 207, 233] </s> Second, the dissent attempts to undercut the plain meaning of 7 by looking to its legislative history and the substitution of the term "publication" for "copyright" in the force or validity clause. According to the dissent, that particular alteration in the proposed bill "made clear that it was the publication of the derivative work, not the copyright itself, that was not to `affect the force or validity of any subsisting copyright.'" Post, at 249. Under the 1909 Act, it was necessary to publish the work with proper notice to obtain copyright. Publication of a work without proper notice automatically sent a work into the public domain. See generally 2 Nimmer 7.02[C]1.; 17 U.S.C. 10 (1976 ed.). The language change was suggested only to ensure that the publication of a "new compiled work" without proper notice, including smaller portions that had not been previously published and separately copyrighted, would not result in those sections moving into the public domain. See Note, 44 Brooklyn L. Rev., at 919-920. Had the bill retained the term "copyright," publication alone could have affected the force or validity of the copyright in the pre-existing work. Thus, far from telling us anything about the copyright in the derivative work, as the dissent apparently believes it does, the language change merely reflects the practical operation of the Act. </s> Third, we think the dissent errs in its reading of 3. Section 3 provides: </s> "The copyright provided by this title shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright." 17 U.S.C. 3 (1976 ed.). </s> The dissent reasons that 7, "read together with 3, plainly indicates that the copyright on a derivative work extends to both the new material and that `in which copyright is already subsisting.' The author or proprietor of the derivative work therefore has the statutory right to publish and distribute the entire work." Post, at 241. Section 3, however, [495 U.S. 207, 234] undermines, rather than supports, the dissent's ultimate conclusion that the derivative work is "completely independent" of the pre-existing work. Post, at 245. Section 3 makes three distinct points: (1) copyright protects the copyrightable parts of the work; (2) copyright extends to parts of the work in which copyright was already obtained, and (3) the duration or scope of the copyright already obtained will not be extended. Important for this case is that 3 provides that one can obtain copyright in a work where parts of the work are already copyrighted. For example, one could obtain a copyright in an opera even though three of the songs to be used were already copyrighted. This, and only this, is what is meant in 7 when it states that "[c]ompilations or abridgments, adaptations, arrangements, dramatizations, translations or other versions of works . . . or works republished with new matter shall be regarded as new works subject to copyright under the provisions of this title." </s> More important, however, is that under the express language of 3, one obtains a copyright on the entire work, but the parts previously copyrighted get copyright protection only according to the "duration or scope" of the already existing copyright. Thus, if an author attempts to obtain copyright in a book derived from a short story, he can obtain copyright on the book for the full copyright term, but will receive protection of the story parts only for the duration and scope of the rights previously obtained. Correlatively, if an author attempts to copyright a novel, e. g., about Cinderella, and the story elements are already in the public domain, the author holds a copyright in the novel, but may receive protection only for his original additions to the Cinderella story. See McCaleb v. Fox Film Corp., 299 F. 48 (CA5 1924); American Code Co. v. Bensinger, 282 F. 829 (CA2 1922). </s> The plain language of the first clause of 7 ensures that this scheme is carried out with respect to "[c]ompilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain [495 U.S. 207, 235] or of copyrighted works . . . or works republished with new matter," i. e., derivative works. The second clause of 7 clarifies what might have been otherwise unclear - that the principle in 3 of preservation of the duration or scope of the subsisting copyright applies to derivative works, and that neither the scope of the copyright in the matter employed nor the duration of the copyright in the original work is undermined by publication of the derivative work. See Adventures in Good Eating v. Best Places to Eat, 131 F.2d 809, 813, n. 3 (CA7 1942); G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469 (CA2), cert. denied, 342 U.S. 849 (1951); Russell v. Price, 612 F.2d, at 1128; see also 1 Nimmer 3.07. </s> If one reads the plain language of 7 and 3 together, one must conclude that they were enacted in no small part to ensure that the copyright in the pre-existing work would not be abrogated by the derivative work. Section 7 requires consent by the author of the pre-existing work before the derivative work may be produced, and both provisions explicitly require that the copyright in the "subsisting work" will not be abrogated by incorporation of the work into another work. </s> If the dissent's theory were correct, 3 need only say that "copyright provided by this title shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting." Instead, 3 goes on to say that the latter coverage exists "without extending the duration or scope of such copyright." Clearly, the 1909 Act's plain language requires that the underlying work's copyright term exists independently of the derivative work's term, even when incorporated and even though the derivative work holder owns copyright in the whole "work." If the terms must exist separately, each copyright term must be examined for the validity and scope of its grant of rights. </s> In this case, the grant of rights in the pre-existing work lapsed and, therefore, the derivative work owners' rights to [495 U.S. 207, 236] use those portions of the pre-existing work incorporated into the derivative work expired. Thus, continued use would be infringing; whether the derivative work may continue to be published is a matter of remedy, an issue which is not before us. To say otherwise is to say that the derivative work nullifies the "force" of the copyright in the "matter employed." Whether or not we believe that this is good policy, this is the system Congress has provided, as evidenced by the language of the 1909 Act and the cases decided under the 1909 Act. Although the dissent's theory may have been a plausible option for a legislature to have chosen, Congress did not so provide. </s> III </s> Petitioners assert that even if their use of "It Had to Be Murder" is unauthorized, it is a fair use and, therefore, not infringing. At common law, "the property of the author . . . in his intellectual creation [was] absolute until he voluntarily part[ed] with the same." American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299 (1907). The fair use doctrine, which is incorporated into the 1976 Act, evolved in response to this absolute rule. See Harper & Row, 471 U.S., at 549 -551. The doctrine is an "`equitable rule of reason,'" Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 448 , which "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (CA2 1980). Petitioners contend that the fair use doctrine should be employed in this case to "avoid [a] rigid applicatio[n] of the Copyright Act." Brief for Petitioners 42. </s> In 17 U.S.C. 107, Congress provided examples of fair use, e. g., copying "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," and listed four [495 U.S. 207, 237] nonexclusive factors that a court must consider in determining whether an unauthorized use is not infringing: </s> "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; </s> "(2) the nature of the copyrighted work; </s> "(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and </s> "(4) the effect of the use upon the potential market for or value of the copyrighted work." </s> The Court of Appeals determined that the use of Woolrich's story in petitioners' motion picture was not fair use. We agree. The motion picture neither falls into any of the categories enumerated in 107 nor meets the four criteria set forth in 107. "[E]very [unauthorized] commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." Sony Corp. of America v. Universal Studios, Inc., supra, at 451. Petitioners received $12 million from the re-release of the motion picture during the renewal term. 863 F.2d, at 1468. Petitioners asserted before the Court of Appeals that their use was educational rather than commercial. The Court of Appeals found nothing in the record to support this assertion, nor do we. </s> Applying the second factor, the Court of Appeals pointed out that "[a] use is less likely to be deemed fair when the copyrighted work is a creative product." 863 F.2d, at 1481 (citing Brewer v. Hustler Magazine, Inc., 749 F.2d 527, 529 (CA9 1984)). In general, fair use is more likely to be found in factual works than in fictional works. See 3 Nimmer 13.05[A], pp. 13-77 to 13-78 ("[A]pplication of the fair use defense [is] greater . . . in the case of factual works than in the case of works of fiction or fantasy"); cf. Harper & Row, 471 U.S., at 563 ("The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy"). [495 U.S. 207, 238] A motion picture based on a fictional short story obviously falls into the latter category. </s> Examining the third factor, the Court of Appeals determined that the story was a substantial portion of the motion picture. See 471 U.S., at 564 -565 (finding unfair use where quotation from book "`took what was essentially the heart of the book'"). The motion picture expressly uses the story's unique setting, characters, plot, and sequence of events. Petitioners argue that the story constituted only 20% of the motion picture's story line, Brief for Petitioners 40, n. 69, but that does not mean that a substantial portion of the story was not used in the motion picture. "[A] taking may not be excused merely because it is insubstantial with respect to the infringing work." Harper & Row, supra, at 565. </s> The fourth factor is the "most important, and indeed, central fair use factor." 3 Nimmer 13.05[A], p. 13-81. The record supports the Court of Appeals' conclusion that re-release of the film impinged on the ability to market new versions of the story. Common sense would yield the same conclusion. Thus, all four factors point to unfair use. "This case presents a classic example of an unfair use: a commercial use of a fictional story that adversely affects the story owner's adaptation rights." 863 F.2d, at 1482. </s> For the foregoing reasons, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 The Copyright Act of 1976 (1976 Act), 17 U.S.C. 101 et seq. (1988 ed.), codified the definition of a "`derivative work'" as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version . . . or any other form in which a work may be recast, transformed, or adapted." 101. </s> [Footnote 2 Neither Miller Music nor Fred Fisher decided the question of when the renewal rights vest, i. e., whether the renewal rights vest upon commencement of the registration period, registration, or the date on which the original term expires and the renewal term begins. We have no occasion to address the issue here. </s> [Footnote 3 Title 17 U.S.C. 106 codifies the various rights a copyright holder possesses: "[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: </s> "(1) to reproduce the copyrighted work in copies or phonorecords; </s> "(2) to prepare derivative works based upon the copyrighted work; </s> "(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; </s> "(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and </s> "(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly." </s> JUSTICE WHITE, concurring in the judgment. </s> Although I am not convinced, as the Court seems to be, that the decision in Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960), was required by the Copyright Act, neither am I convinced that it was an impermissible construction of the statute. And because Miller Music, in my view, requires the result reached by the Court in this case, I concur in the judgment of affirmance. [495 U.S. 207, 239] </s> JUSTICE STEVENS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting. </s> The Constitution authorizes the Congress: </s> "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . ." U.S. Const. Art. I, 8, Cl. 8. </s> Section 6 of the Copyright Act of 1909, 35 Stat. 1077, 17 U.S.C. 7 (1976 ed.) (hereafter 7), furthers that purpose; 23 of that Act, 17 U.S.C. 24 (1976 ed.) (hereafter 24), as construed by the Court in this case, does not. It is therefore appropriate to begin with 7. 1 </s> I </s> In a copyright case, as in any other case, the language of the statute provides the starting point. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989); Mills Music, Inc. v. Snyder, 469 U.S. 153, 164 (1985). </s> Section 7 provides in pertinent part: </s> "Compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of [495 U.S. 207, 240] works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works . . . shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works." </s> This statutory provision deals with derivative works - works that include both old material and new material. The plain language of 7 confers on the entire derivative work - not just the new material contained therein - the status of all other works of authorship, that of "new works subject to copyright under the provisions of this title." Among those rights is that specified in 3 of the 1909 Act, 17 U.S.C. 3 (1976 ed.), which applies both to composite and derivative works and states that "the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright." In turn, under 1, 17 U.S.C. 1 (1976 ed.), the author or proprietor of the copyright has the right to distribute and publicly perform the copyrighted derivative work. 1(a), 1(d). 2 The statute does not say [495 U.S. 207, 241] anything about the duration of the copyright being limited to the underlying work's original term; rather, derivative works made with the consent of the author and derivative works based on matter in the public domain are treated identically. They are both given independent copyright protection. Section 7, read together with 3, plainly indicates that the copyright on a derivative work extends to both the new material and that "in which copyright is already subsisting." 3. The author or proprietor of the derivative work therefore has the statutory right to publish and distribute the entire work. 3 </s> The structure of 7 confirms this reading. The statute does not merely provide the derivative author with a right to copyright but goes on to set limitations and conditions on that copyright. The statute makes "the consent of the proprietor of the [underlying] copyright" a precondition for copyright of the derivative work, a provision that would make little sense if the copyright provided by 7 did not derogate in some manner from the underlying author's copyright rights. 4 The [495 U.S. 207, 242] statute also directs that the right granted the derivative work proprietor should not "be construed to imply an exclusive right to such use of the original works," suggesting, by negative implication, that it should be read to include a non-exclusive right to use of the original works. The provision that publication "shall not affect the force or validity of any subsisting copyright" also suggests that publication would otherwise have the capacity to affect the force or validity of the original copyright: By publishing the derivative work [495 U.S. 207, 243] without satisfying the notice requirements of the Act, the derivative author would dedicate to the public not only his own original contribution, but also that of the original author. Conversely, the limitation that publication does not "secure or extend copyright in such original works" would be unnecessary if the copyrighted derivative work did not include within it some of the material covered by the earlier copyright, or if the term of the derivative copyright did not extend beyond the life of the original copyright. 5 Although the derivative copyright protects only the new material contained within the new work, that limitation is not the product of the limited extent of the copyright - which encompasses both new and old material - but rather of the specific statutory language restricting its effect against third parties. 6 </s> [495 U.S. 207, 244] </s> Any other interpretation would render the provision largely surplusage. The Copyright Act of 1909 elsewhere accords protection to "all the writings of an author," 4, including dramatic composition, 5, and long before the Act of 1909, it was recognized that the additions and improvements to existing works of art were subject to copyright as original works of authorship. 7 Congress would hardly have needed to provide for the copyright of derivative works, including the detailed provisions on the limit of that copyright, if it intended only to accord protection to the improvements to an original work of authorship. In my opinion, 7 was intended to do something more: to give the original author the power [495 U.S. 207, 245] to sell the right to make a derivative work that upon creation and copyright would be completely independent of the original work. </s> II </s> The statutory background supports the conclusion that Congress intended the original author to be able to sell the right to make a derivative work that could be distributed for the full term of the derivative work's copyright protection. At the time of the enactment of 7, copyright in the right to dramatize a nondramatic work was a relatively recent innovation with equivocal support. Until 1870, an author had only the right to prevent the copying or vending of his work in the identical medium. 8 The Act of 1870, which gave the author the "sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending," made a limited start toward further protection, providing that "authors may reserve the right to dramatize or to translate their own works." Ch. 230, 86, 16 Stat. 212. The identical language was carried over when the statute was revised in 1873. Rev. Stat. 4952. The Act of 1891 was a landmark. It gave the same rights to the "author" as had the previous statutes, but provided further that "authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States." Ch. 565, 4952, 26 Stat. 1107. The case law was in accord. Although courts were occasionally willing to enjoin abridgments as infringing, in 1853 Justice Grier wrote that a dramatization of the novel "Uncle Tom's Cabin" would not infringe [495 U.S. 207, 246] the author's rights in the book, see Stowe v. Thomas, 23 F. Cas. 201, 208 (No. 13,514) (CC ED Pa. 1853), 9 and it was not until after the passage of the 1909 Act that this Court first held that a copy of a literary work in another form than the original could infringe the author's copyright. See Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911). 10 </s> [495 U.S. 207, 247] </s> The drafts of the copyright bill, considered by the Conferences held by the Register of Copyrights and the Librarian of Congress in 1905 and 1906, 11 had three distinctive features with respect to derivative works: They provided a limited period of protection from the creation of derivative works during which a derivative work could only be created with "the consent of the author or his assigns," 2 Brylawski & Goldman, Part D, p. LXV; 12 they distinguished between the copyright term for original works of authorship and for derivative works, according the latter a shorter period of protection; 13 and, finally, they provided that derivative works produced with the consent of the original author would be considered new works entitled to copyright. Together these provisions reveal a more complicated set of theoretical premises than is commonly acknowledged. Although originality of authorship was an essential precondition of copyright, [495 U.S. 207, 248] the duration of the copyright term and the extent of copyright protection rested upon the nature of the work as a whole rather than the original expression contributed by the copyright author. Moreover, the consent of the underlying author to the production of a derivative work was to be encouraged and, once given, entitled the derivative work to independence from the work upon which it was based. </s> The first two provisions were not included in the Copyright Act, which gave authors the right, during the full term of copyright, to create or consent to the creation of derivative works which would then enjoy their own copyright protection. But the third provision which set the conditions upon which an original author would consent and the second author would create a derivative work entitled to protection under the Copyright Act carried forward the view that the derivative copyright extended beyond the original contribution of the derivative author. Throughout the debates on the provision, the drafters of the Copyright Act evinced their understanding that the derivative copyright itself encompassed the whole derivative work. The first draft of 7, considered by the second Conference in 1905, would have provided copyright as a new work for a derivative work "produced with the consent and authorization of the author of the original," without any restrictions on the effect of that copyright on the copyright in the original work. 2 Brylawski & Goldman. Part D, p. XXXII. By the time of the third Conference in 1906, the Register of Copyrights expressed his concern that that provision would be read too broadly, adding the proviso: "That the copyright thus secured shall not be construed to grant any exclusive right to such use of the original works, except as that may be obtained by agreement with the author or proprietor thereof." 3 id., Part E, p. LI. The implication was that, in the absence of an agreement, the author of the derivative work would have, as a matter of copyright law, a nonexclusive right "to such use of the original works." [495 U.S. 207, 249] The final draft presented to Congress at the end of 1906 addressed a parallel problem that the license to use the underlying material might also detract from the rights of the underlying copyright if the derivative author did not adequately protect the material on which the copyright was subsisting. To allay this concern, the Register added the language "no such copyright shall affect the force or validity of any subsisting copyright upon the matter employed or any part thereof." 1 id., Part B, p. 15. </s> Two significant changes were made during the congressional hearings from 1907 through 1909, but with those exceptions the provision survived intact. First, in response to the objection that the language of 6, codified at 17 U.S.C. 7 (1976 ed.), in conjunction with that of 3, codified at 17 U.S.C. 3 (1976 ed.), would be read to give the derivative work proprietor "a new term of copyright running on this old matter of his" and, in that way, provide for perpetual copyright, 4 Brylawski & Goldman, Part J, pp. 132-138 (statement of Mr. Porterfeld); see also id., at 428, Congress limited the enforceability of the derivative copyright, adding language that publication of the dramatization would not "secure or extend copyright in such original works." 6, 35 Stat. 1077. Second, in response to the objection that the Register's draft provision did not address with sufficient precision the possibility that failure of the derivative copyright would allow the underlying work to enter the public domain, Congress substituted the work "publication" for "copyright" in the "force or validity" clause. Congress thus made clear that it was the publication of the derivative work, not the copyright itself, that was not to "affect the force or validity of any subsisting copyright." Ibid. 14 </s> [495 U.S. 207, 250] </s> The legislative history confirms that the copyright in derivative works not only gives the second creative product the monopoly privileges of excluding others from the unconsented use of the new work, but also allows the creator to publish his or her own work product. The authority to produce the derivative work, which includes creative contributions by both the original author and the second artist, is dependent upon the consent of the proprietor of the underlying copyright. But once that consent has been obtained, and a derivative work has been created and copyrighted in accord with that consent, "a right of property spr[ings] into existence," Edmonds v. Stern, 248 F. 897, 898 (CA2 1918), that Congress intended to protect. Publication of the derivative work does not "affect the force or validity" of the underlying copyright except to the extent that it gives effect to the consent of the original proprietor. That owner - and in this case, the owner of a renewal of the original copyright - retains full dominion and control over all other means of exploiting that work of art, including the right to authorize other derivative works. The original copyright may have relatively little value because the creative contribution of the second artist is far more significant than the original contribution, [495 U.S. 207, 251] but that just means that the rewards for creativity are being fairly allocated between the two artists whose combined efforts produced the derivative work. </s> III </s> Nothing in 24 requires a different result. The portion of that section dealing with copyright renewals provides: </s> "[T]he author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, . . . shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright." 17 U.S.C. 24 (1976 ed.). </s> That statute limits the renewal rights in a copyright to the specified statutory beneficiaries, "completely dissevering the title, breaking up the continuance . . . and vesting an absolutely new title eo nomine in the persons designated." White-Smith Music Publishing Co. v. Goff, 187 F. 247, 250 (CA1 1911). Since copyright is a creature of statute and since the statute gives the author only a contingent estate, with "the widow, widower, or children" as remaindermen, the author "ha[s] only an expectancy to assign" for the second term. Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 375 (1960). The original author may not sell more than he owns. He may not convey the second-term rights to print or copy the underlying work or to create additional derivative works from it. See Gilliam v. American Broadcasting Cos., 538 F.2d 14, 21 (CA2 1976); G. Ricordi & Co. v. Paramount Pictures Inc., 189 F.2d 469 (CA2), cert, denied, 342 U.S. 849 (1951). 15 Nor may the derivative author dedicate [495 U.S. 207, 252] the underlying art to the public by failing to renew his copyright. See Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91, 93 (CA2 1981); Russell v. Price, 612 F.2d 1123, 1128 (CA9 1979). 16 Even if the alienation of second-term rights would be in the author's best interest, providing funds when he is most in need, the restriction on sale of the corpus is a necessary consequence of Congress' decision to provide two terms of copyright. </s> Neither 24 nor any other provision of the Act, however, expressly or by implication, prevents the author from exercising any of his other statutory rights during the original term of the copyright. The author of the underlying work may contract to sell his work at a bargain price during the original term of the copyright. That agreement would be enforceable even if performance of the contract diminished the value of the copyright to the owner of the renewal interest. Similarly, the original author may create and copyright his own derivative work; the right of an assignee or legatee to receive that work by assignment or bequest should not be limited by the interests of the owners of the renewal copyright in the underlying work. Section 1 of the Act, 17 U.S.C. 1 (1976 ed.), gives the author the right to dramatize his own work without any apparent restriction. Such use might appear, at the time or in retrospect, to be improvident and a waste of the asset. Whatever harm the proprietor of the renewal copyright might suffer, however, is a consequence of the enjoyment by the author of the rights granted him by Congress. </s> The result should be no different when the author exercises his right to consent to creation of a derivative work by another. By designating derivative works as "new works" [495 U.S. 207, 253] that are subject to copyright and accorded the two terms applicable to original works, Congress evinced its intention that the derivative copyright not lapse upon termination of the original author's interest in the underlying copyright. The continued publication of the derivative work, after the expiration of the original term of the prior work, does not infringe any of the statutory successor's rights in the renewal copyright of the original work. The author's right to sell his derivative rights is exercised when consent is conveyed and completed when the derivative work is copyrighted. At that point, prior to the end of the first term, the right to prevent publication of the derivative work is no longer one of the bundle of rights attaching to the copyright. The further agreement to permit use of the underlying material during the renewal term does not violate 24 because at the moment consent is given and the derivative work is created and copyrighted, a new right of property comes into existence independent of the original author's copyright estate. </s> As an ex post matter, it might appear that the original author could have negotiated a better contract for his consent to creation of a derivative work, but Congress in 24 was not concerned with giving an author a second chance to renegotiate his consent to the production of a derivative work. 17 It provided explicitly that, once consent was given, the derivative work was entitled as a matter of copyright law to treatment as a "new wor[k]." 7. Ironically, by restricting the [495 U.S. 207, 254] author's ability to consent to creation of a derivative work with independent existence, the Court may make it practically impossible for the original author to sell his derivative rights late in the original term and to reap the financial and artistic advantage that comes with the creation of a derivative work. 18 Unless 24 is to overwhelm 7, the consent of the original author must be given effect whether or not it intrudes into the renewal term of the original copyright. </s> A putative author may sell his work to a motion picture company who will have greater use for it, by becoming an employee and making the work "for hire." The 1909 Act gave the employer the right to renew the copyright in such circumstances. 19 In addition, when an author intends that his work be used as part of a joint work, the copyright law gives the joint author common authority to exploit the underlying work and renew the copyright. 20 The Court today [495 U.S. 207, 255] holds, however, that the independent entrepreneur, who does not go into the company's employ and who intends to make independent use of his work, does not also have the same right to sell his consent to produce a derivative work that can be distributed and publicly performed during the full term of its copyright protection. That result is perverse and cannot have been what Congress intended. 21 </s> The critical flaw in the Court's analysis is its implicit endorsement of the Court of Appeals reasoning that: </s> "`If Miller Music makes assignment of the full renewal rights in the underlying copyright unenforceable when the author dies before effecting renewal of the copyright, then a fortiori, an assignment of part of the rights in the underlying work, the right to produce a movie version, must also be unenforceable if the author dies before effecting renewal of the underlying copyright.'" Ante, at 215-216. </s> That reasoning would be valid if the sole basis for the protection of the derivative work were the contractual assignment of copyright, but Woolrich did not just assign the rights to produce a movie version the way an author would assign the publisher rights to copy and vend his work. Rather, he expressed his consent to production of a derivative work under 7. The possession of a copyright on a properly created derivative work gives the proprietor rights superior to those of [495 U.S. 207, 256] a mere licensee. As Judge Friendly concluded, this position is entirely consistent with relevant policy considerations. 22 </s> In my opinion, a fair analysis of the entire 1909 Act, with special attention to 7, indicates that the statute embodied the same policy choice that continues to be reflected in the 1976 Act. Section 101 of the Act provides: </s> "A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant." 17 U.S.C. App. 304(c)(6)(A). </s> I respectfully dissent. </s> [Footnote 1 Although the Court of Appeals determined the rights of the parties by looking to the 1909 Act, respondent now argues that the 1976 Act is applicable. At the time petitioners secured their copyright in the film in 1954, and respondent renewed his copyright in the short story in 1969, the Copyright Act of 1909 was in effect. There is no evidence that Congress in the Copyright Act of 1976 intended to abrogate rights created under the previous Act. I therefore take it as evident that while the cause of action under which respondent sues may have been created by the 1976 Act, the respective property rights of the parties are determined by the statutory grant under the 1909 Act. See Roth v. Pritikin, 710 F.2d 934, 938 (CA2), cert. denied, 464 U.S. 961 (1983); International Film Exchange, Ltd. v. Corinth Films, Inc., 621 F. Supp. 631 (SDNY 1985); Jaszi, When Works Collide: Derivative Motion Pictures, Underlying Rights, and the Public Interest, 28 UCLA L. Rev. 715, 746-747 (1981) (hereinafter Jaszi). Cf. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright 1.11, p. 1-96 (1989) (hereinafter Nimmer) (no explicit statement of a legislative intent to apply the current Act retroactively). </s> [Footnote 2 Section 1 of the 1909 Act, 35 Stat. 1075, provides in pertinent part: </s> "That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right: </s> "(a) To print, reprint, publish, copy, and vend the copyrighted work; </s> . . . . . </s> "(d) To perform or represent the copyrighted work publicly if it be a drama . . .; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever." </s> In its response to this dissent, the Court completely ignores the plain language of 1. </s> [Footnote 3 The Court states that this reading of 7 is "creative," has not been adopted by any Court of Appeals in the history of the 1909 Act, and has not been argued by petitioners. Ante, at 230. Although I am flattered by this comment, I must acknowledge that the credit belongs elsewhere. In their briefs to this Court, petitioners and their amici argue that 7 created an independent but limited copyright in the entire derivative work entitled to equal treatment with original works under the renewal and duration provisions of 24. Brief for Petitioners 14-15, 17, 21, 29-30; Brief for Columbia Pictures Industries, Inc., et al., as Amici Curiae 11, 13, 15. That was also the central argument of Judge Friendly in his opinion for the Court of Appeals for the Second Circuit, see Rohauer v. Killiam Shows, Inc., 551 F.2d 484, 487-488, 489-490, 493-494, cert. denied, 431 U.S. 949 (1977), and Judge Thompson dissenting from the panel decision below, see Abend v. MCA, Inc., 863 F.2d 1465, 1484-1487 (CA9 1988). Indeed, Judge Friendly only addressed the equities with great reservation, 551 F.2d, at 493, after "a close reading of the language of what is now 7." Id., at 489. </s> [Footnote 4 The drafters of the 1909 Act were well aware of the difficulty of contacting distant authors who no longer wished to enforce their copyright [495 U.S. 207, 42] rights. In 24, for example, Congress provided that a proprietor could secure and renew copyright on a composite work when the individual contributions were not separately registered. The provision was apparently addressed to the difficulties such proprietors had previously faced in locating and obtaining the consent of authors at the time of renewal. See H. R. Rep. No. 2222, 60th Cong., 2d Sess., 15 (1909); 1 Legislative History of the 1909 Copyright Act, Part C, p. 56 (E. Brylawski & A. Goldman eds. 1976) (statement of Mr. Elder) (hereinafter Brylawski & Goldman); 5 id., Part K, pp. 18-19 (statement of Mr. Putnam); 5 id., Part K, p. 77 (statement of Mr. Hale). See also Elder, Duration of Copyright, 14 Yale L. J. 417, 418 (1905). The effect of the 7 consent requirement under the Court's reading should not only be to forbid the author of the derivative work to "employ a copyrighted work without the author's permission," ante, at 232, but also to penalize him by depriving him both of the right to use his own new material and, in theory, of the right to protect that new material against use by the public. It is most unlikely that a Congress which intended to promote the creation of literary works would have conditioned the protection of new material in an otherwise original work on "consent" of an original author who did not express the desire to protect his own work. </s> The Court of Appeals thought that the failure of Congress to grant an "exemption" to derivative works similar to that it granted composite works demonstrated its intention that derivative works lapse upon termination of the underlying author's copyright interest. 863 F.2d, at 1476. Section 24, however, does not exempt composite works from the renewal provision, but merely provides for their renewal by the proprietor alone when the individual contributions are not separately copyrighted. See 2 Nimmer 9.03[B], p. 9-36. Moreover, the "author," entitled to renewal under 24, refers back to the author of the original work and the derivative work. Congress did not need to make special provision for the derivative work in 24 because it already did so in 7, making it a new work "subject to copyright under the provisions of this title." 17 U.S.C. 7 (1976 ed.). </s> [Footnote 5 It is instructive to compare the language of 7 to that used by Congress in 1976 to indicate that copyright in a derivative work under the new Act attached only to the new material: </s> "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply and exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material." 17 U.S.C. 103(b) (1988 ed.). </s> [Footnote 6 I thus agree with the Court that publication of a derivative work cannot extend the scope or duration of the copyright in the original work, ante, at 234-235, and that the underlying work's copyright term exists independently of the derivative work's term. Ante, at 231-232, 235. As much is clear from the language of 7, which extends the copyright to the entire work, but then limits the effect of that copyright. I further agree that the original author's right to "consent" to the copyright of a derivative work terminates when the statutory term of the copyright in the underlying work expires. Ante, at 235. As I explain, infra at 251-253, that result follows from the language of 24. I do not agree, however, that the statutory right to distribute and publicly perform a derivative work that has been copyrighted with the original author's consent during the original term of the underlying work is limited by the validity and scope of the original copyright. Ante, at 235. Section 7, in conjunction with 24, gives the derivative author two full terms of copyright in the entire [495 U.S. 207, 244] derivative work both when the original work is used with the consent of the original author and when the original work is in the public domain. My conclusion thus rests upon the language of the statute. The Court's contrary assertion, that if the right to publish the derivative work extended beyond the original term of the underlying work it would "nulli[fy] the `force' of the copyright in the `matter employed,'" ante, at 236, simply begs the question of the extent of the original author's statutory rights. Even after the derivative work has been copyrighted, the original author retains all of his statutory rights, including the right to consent to the creation of additional derivative works during both the original and renewal terms. Moreover, even if the derivative work did derogate from the force of the original work, the provision to which the Court apparently refers states only that "publication" of a derivative work - and not consent to its creation - shall not affect the force of the copyright in the matter employed. The Court can avoid making 7 complete surplus (and allow it to limit the rights of both the original and the derivative author) only by distorting the plain language of that provision. </s> [Footnote 7 See, e. g., Gray v. Russell, 10 F. Cas. 1035, 1037-1038 (No. 5, 728) (CC Mass. 1839); Emerson v. Davies, 8 F. Cas. 615, 618-619 (No. 4,436) (CC Mass. 1845); Shook v. Rankin, 21 F. Cas. 1335, 1336 (No. 12,804) (CC N. D. Ill. 1875). The Court's difficulty in explaining away the language of 7 is not surprising. The authority upon whom it almost exclusively relies, see ante, at 223, had the same difficulty, stating at one point that "[t]he statutory text was somewhat ambiguous," 1 Nimmer, p. 3-22.2, and admitting at another that under his reading of the Copyright Act the provision was largely irrelevant. See id., at 3-29, n. 17 ("[I]t is consent referred to in Sec. 7, but which would have efficacy as a matter of contract law even without Sec. 7"). At least in the Copyright Act of 1909, however, Congress knew exactly what it was doing. </s> [Footnote 8 The Act of 1790, passed by the First Congress, provided "the sole right and liberty of printing, reprinting, publishing and vending" the copyrighted work. 1, 1 Stat. 124. Its successor, the Act of 1831, repeated the language that the author of a copyrighted work "shall have the sole right and liberty of printing, reprinting, publishing, and vending" the work. Ch. 16, 1, 4 Stat. 436. Benjamin Kaplan has written that the Act of 1870 constituted an "enlargement of the monopoly to cover the conversion of a work from one to another artistic medium." An Unhurried View of Copyright 32 (1967) (hereinafter Kaplan). </s> [Footnote 9 "By the publication of Mrs. Stowe's book, the creations of the genius and imagination of the author have become as much public property as those of Homer or Cervantes. . . . All her conceptions and inventions may be used and abused by imitators, play-rights and poetasters [They are no longer her own - those who have purchased her book, may clothe them in English doggerel, in German or Chinese prose. Her absolute dominion and property in the creations of her genius and imagination have been voluntarily relinquished.] All that now remains is the copyright of her book; the exclusive right to print, reprint and vend it, and those only can be called infringers of her rights, or pirates of her property, who are guilty of printing, publishing, importing or vending without her license, `copies of her book.'" Stowe v. Thomas, 23 F. Cas., at 208 (footnote omitted). </s> It appears that at least as late as 1902, English copyright law also did not recognize that a dramatization could infringe an author's rights in a book. See E. MacGillivray, A Treatise Upon The Law of Copyright 114 (1902); see also Reade v. Conquist, 9 C. B. N. S. 755, 142 Eng. Rep. 297 (C. P. 1861); Coleman v. Wathen, 5 T. R. 245, 101 Eng. Rep. 137 (K. B. 1793). Even after the passage of the Act of 1870, one American commentator flatly declared: "Even if the public recitation of a book, in which copyright exists, is not made from memory, but takes the form of a public reading, from the work itself, of the whole or portions of it, this would not amount to an infringement of the author's copyright." 2 J. Morgan, Law of Literature 700-701 (1875). </s> [Footnote 10 "The American cases reflect no recognition that unauthorized dramatization could infringe rights in a nondramatic work until the 1870 copyright revision provided authors with the same option to reserve dramatization rights that they were afforded with respect to translation. By then, dramatization - like other derivative works - already had enjoyed almost a century of substantial independence. During this period, courts construing federal copyright statutes were willing to extend protection to them, but were reluctant to interfere with their unauthorized production." Jaszi 783. </s> See also Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. Copyright Society 209, 211-215 (1983). </s> [Footnote 11 The history of the Copyright Act of 1909 is recounted in Justice Frankfurter's opinion for the Court in Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 652 (1943). </s> [Footnote 12 The first draft of the copyright bill considered in 1905 provided that if the author or his assigns did not make or authorize to be made a dramatization within 10 years of the date of registration, the work could be used for dramatization by other authors. 2 Brylawski & Goldman, Part D, p. LXV. A similar provision appeared in the third draft of the bill considered by the Conference the following year, 3 id., Part E, p. XL, and in the bill submitted by the Register of Copyrights to Congress. 1 id., Part B, pp. 37-38. The provision was eventually dropped during hearings in Congress and was never adopted into law. </s> [Footnote 13 The first draft provided identical terms for both original works of authorship and derivative works, 2 id., Part D, pp. XXXVII-XXXVIII. Successive drafts gave the copyright in the original work to the author for his life plus 50 years, but limited the copyright in a derivative work to 50 years. 3 id., Part E, pp. LIII-LIV; 1 id., Part B, pp. 34-35. The single term was rejected at a late date by Congress and the final Act eventually provided the same two-term copyright for original and derivative works. See generally B. Ringer, Renewal of Copyright (1960), reprinted as Copyright Law Revision Study No. 31, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 115-121 (1961). </s> [Footnote 14 The amendment apparently emerged from dialogue between Mr. W. B. Hale, representative of the American Law Book Company, and Senator Smoot: [495 U.S. 207, 250] </s> "Mr. Hale: `There is another verbal criticism I should like to make in section 6 of the Kittredge bill, which also relates to compilations, abridgments, etc.' </s> "The Chairman [Senator Smoot]. `I think it is the same in the other bills.' </s> "Mr. Hale. `Yes; it is the same in all the bills. I heartily agree with and am in favor of that section; but in line 12, in lieu of the words "but no such copyright shall effect the force or validity," etc., I would prefer to substitute these words: "and the publication of any such new work shall not affect the copyright," etc. . . . Under the act, as it stands now, it says the copyright shall not affect it. I would like to meet the case of a new compiled work, within the meaning of this clause, that is not copyrighted, or where, by reason of some accident the copyright fails. That should not affect the original copyrights in the works that have entered into and formed a part of this new compiled work. It does not change the intent of this section in any way.'" 5 Brylawski & Goldman, Part K, p. 78. </s> [Footnote 15 In Ricordi, the author of the derivative work not only produced a new derivative work, but also breached his covenant not to distribute the work, after the first term of the underlying copyright. As JUSTICE WHITE has [495 U.S. 207, 252] explained, "Ricordi merely held that the licensee of a copyright holder may not prepare a new derivative work based upon the copyrighted work after termination of the grant." Mills Music, Inc. v. Snyder, 469 U.S. 153, 183 , n. 7 (1985) (dissenting opinion). </s> [Footnote 16 The result follows as well from the "force and validity" clause of 7. </s> [Footnote 17 Congress was primarily concerned with the ability of the author to exploit his own work of authorship: </s> "Your committee, after full consideration, decided that it was distinctly to the advantage of the author to preserve the renewal period. It not infrequently happens that the author sells his copyright outright to a publisher for a comparatively small sum. If the work proves to be a great success and lives beyond the term of twenty-eight years, your committee felt that it should be the exclusive right of the author to take the renewal term, and the law should be framed as is the existing law, so that he could not be deprived of that right." H. R. Rep. No. 2222, 60th Cong., 2d Sess., at 14. </s> [Footnote 18 The creation of a derivative work often is in the best interests of both the original author and his statutory successors. As one commentator has noted: </s> "The movie Rear Window became a selling point for anthologies containing the Woolrich story. The musical play Cats no doubt sent many people who dimly remembered the Love Song of J. Alfred Prufrock as the chief, if not the only oeuvre of T. S. Eliot to the bookstore for Old Possum's Book of Practical Cats." Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1147 (1990). </s> [Footnote 19 See 17 U.S.C. 24 (1976 ed.) ("[I]n the case of . . . any work copyrighted by . . . an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years"). See also Ellingson, Copyright Exception for Derivative Works and the Scope of Utilization, 56 Ind. L. J. 1, 11 (1980-1981). </s> [Footnote 20 See Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406 (CA2 1946); Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266 (CA2 1944). In the "12th Street Rag" case, Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 221 F.2d 569 (CA2 1955), the Court of Appeals held that a work of music, intended originally to stand on its own as an instrumental, could become a joint work when it was later sold to a publisher who commissioned lyrics to be written for it. The decision, which would give the creator of the derivative work and the underlying [495 U.S. 207, 255] author a joint interest in the derivative work, accomplishes the same result that I believe 7 does expressly. </s> [Footnote 21 "The effect of the Fred Fisher [, 318 U.S. 643 (1943),] case and other authorities is that if the author is dead when the twenty-eighth year comes round, the renewal reverts, free and clear, to his widow, children, and so forth in a fixed order of precedency; but if the author is alive in that year, the original sale holds and there is no reversion. The distinction is hard to defend and may operate in a peculiarly perverse way where on the faith of a transfer from the now-deceased author, the transferee has created a `derivative work,' say a movie based on the original novel." Kaplan 112. </s> [Footnote 22 "To such extent as it may be permissible to consider policy considerations, the equities lie preponderantly in favor of the proprietor of the derivative copyright. In contrast to the situation where an assignee or licensee has done nothing more than print, publicize and distribute a copyrighted story or novel, a person who with the consent of the author has created an opera or a motion picture film will often have made contributions literary, musical and economic, as great as or greater than the original author. As pointed out in the Bricker article [Bricker, Renewal and Extension of Copyright, 29 S. Cal. L. Rev. 23, 33 (1955)], the purchaser of derivative rights has no truly effective way to protect himself against the eventuality of the author's death before the renewal period since there is no way of telling who will be the surviving widow, children or next of kin or the executor until that date arrives. To be sure, this problem exists in equal degree with respect to assignments or licenses of underlying copyright, but in such cases there is not the countervailing consideration that large and independently copyrightable contributions will have been made by the transferee." Rohauer v. Killiam Shows, Inc., 551 F.2d 484, 493 (CA2), cert. denied, 431 U.S. 949 (1977). </s> [495 U.S. 207, 257]

United States Supreme Court UNITED STATES v. KOECHER(1986) No. 84-1922 Argued: January 15, 1986Decided: February 25, 1986 </s> 755 F.2d 1022, vacated and remanded. </s> Christopher J. Wright argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Andrew J. Pincus. </s> Gerard E. Lynch argued the cause for respondent. With him on the brief were George Kannar and Charles S. Sims. </s> PER CURIAM. </s> The judgment of the United States Court of Appeals for the Second Circuit is vacated, and the case is remanded to the United States District Court for the Southern District of New York with instructions to dismiss the cause as moot. </s> [475 U.S. 133, 134]

United States Supreme Court BROWN v. BOARD OF EDUCATION(1955) No. 1 Argued: Decided: May 31, 1955 </s> 1. Racial discrimination in public education is unconstitutional, 347 U.S. 483, 497, and all provisions of federal, state or local law requiring or permitting such discrimination must yield to this principle. P. 298. </s> 2. The judgments below (except that in the Delaware case) are reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit the parties to these cases to public schools on a racially nondiscriminatory basis with all deliberate speed. P. 301. </s> (a) School authorities have the primary responsibility for elucidating, assessing and solving the varied local school problems which may require solution in fully implementing the governing constitutional principles. P. 299. </s> (b) Courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. P. 299. </s> (c) Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. P. 299. </s> (d) In fashioning and effectuating the decrees, the courts will be guided by equitable principles - characterized by a practical flexibility in shaping remedies and a facility for adjusting and reconciling public and private needs. P. 300. [349 U.S. 294, 295] </s> (e) At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. P. 300. </s> (f) Courts of equity may properly take into account the public interest in the elimination in a systematic and effective manner of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles enunciated in 347 U.S. 483, 497; but the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. P. 300. </s> (g) While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with the ruling of this Court. P. 300. </s> (h) Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. P. 300. </s> (i) The burden rests on the defendants to establish that additional time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. P. 300. </s> (j) The courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. Pp. 300-301. </s> (k) The courts will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. P. 301. </s> (l) During the period of transition, the courts will retain jurisdiction of these cases. P. 301. </s> 3. The judgment in the Delaware case, ordering the immediate admission of the plaintiffs to schools previously attended only by white children, is affirmed on the basis of the principles stated by this Court in its opinion, 347 U.S. 483; but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in the light of this opinion. P. 301. </s> 98 F. Supp. 797, 103 F. Supp. 920, 103 F. Supp. 337 and judgment in No. 4, reversed and remanded. </s> 91 A. 2d 137, affirmed and remanded. </s> [Footnote *] Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United States District Court for the Eastern District of South Carolina; No. 3, Davis et al. v. County School Board of Prince Edward County, Virginia, et al., on appeal from the United States District Court for the Eastern District of Virginia; No. 4, Bolling et al. v. Sharpe et al., on certiorari to the United States Court of Appeals for the District of Columbia Circuit; and No. 5, Gebhart et al. v. Belton et al., on certiorari to the Supreme Court of Delaware. [349 U.S. 294, 296] </s> Robert L. Carter argued the cause for appellants in No. 1. Spottswood W. Robinson, III, argued the causes for appellants in Nos. 2 and 3. George E. C. Hayes and James M. Nabrit, Jr. argued the cause for petitioners in No. 4. Louis L. Redding argued the cause for respondents in No. 5. Thurgood Marshall argued the causes for appellants in Nos. 1, 2 and 3, petitioners in No. 4 and respondents in No. 5. </s> On the briefs were Harold Boulware, Robert L. Carter, Jack Greenberg, Oliver W. Hill, Thurgood Marshall, Louis L. Redding, Spottswood W. Robinson, III, Charles S. Scott, William T. Coleman, Jr., Charles T. Duncan, George E. C. Hayes, Loren Miller, William R. Ming, Jr., Constance Baker Motley, James M. Nabrit, Jr., Louis H. Pollak and Frank D. Reeves for appellants in Nos. 1, 2 and 3, and respondents in No. 5; and George E. C. Hayes, James M. Nabrit, Jr., George M. Johnson, Charles W. Quick, Herbert O. Reid, Thurgood Marshall and Robert L. Carter for petitioners in No. 4. </s> Harold R. Fatzer, Attorney General of Kansas, argued the cause for appellees in No. 1. With him on the brief was Paul E. Wilson, Assistant Attorney General. Peter F. Caldwell filed a brief for the Board of Education of Topeka, Kansas, appellee. </s> S. E. Rogers and Robert McC. Figg, Jr. argued the cause and filed a brief for appellees in No. 2. </s> J. Lindsay Almond, Jr., Attorney General of Virginia, and Archibald G. Robertson argued the cause for appellees in No. 3. With them on the brief were Henry T. Wickham, Special Assistant to the Attorney General, T. Justin Moore, John W. Riely and T. Justin Moore, Jr. </s> Milton D. Korman argued the cause for respondents in No. 4. With him on the brief were Vernon E. West, Chester H. Gray and Lyman J. Umstead. [349 U.S. 294, 297] </s> Joseph Donald Craven, Attorney General of Delaware, argued the cause for petitioners in No. 5. On the brief were H. Albert Young, then Attorney General, Clarence W. Taylor, Deputy Attorney General, and Andrew D. Christie, Special Deputy to the Attorney General. </s> In response to the Court's invitation, 347 U.S. 483, 495-496, Solicitor General Sobeloff participated in the oral argument for the United States. With him on the brief were Attorney General Brownell, Assistant Attorney General Rankin, Philip Elman, Ralph S. Spritzer and Alan S. Rosenthal. </s> By invitation of the Court, 347 U.S. 483, 496, the following State officials presented their views orally as amici curiae: Thomas J. Gentry, Attorney General of Arkansas, with whom on the brief were James L. Sloan, Assistant Attorney General, and Richard B. McCulloch, Special Assistant Attorney General. Richard W. Ervin, Attorney General of Florida, and Ralph E. Odum, Assistant Attorney General, both of whom were also on a brief. C. Ferdinand Sybert, Attorney General of Maryland, with whom on the brief were Edward D. E. Rollins, then Attorney General, W. Giles Parker, Assistant Attorney General, and James H. Norris, Jr., Special Assistant Attorney General. I. Beverly Lake, Assistant Attorney General of North Carolina, with whom on the brief were Harry McMullan, Attorney General, and T. Wade Bruton, Ralph Moody and Claude L. Love, Assistant Attorneys General. Mac Q. Williamson, Attorney General of Oklahoma, who also filed a brief. John Ben Shepperd, Attorney General of Texas, and Burnell Waldrep, Assistant Attorney General, with whom on the brief were Billy E. Lee, J. A. Amis, Jr., L. P. Lollar, J. Fred Jones, John Davenport, John Reeves and Will Davis. </s> Phineas Indritz filed a brief for the American Veterans Committee, Inc., as amicus curiae. [349 U.S. 294, 298] </s> MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. </s> These cases were decided on May 17, 1954. The opinions of that date, 1 declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded. </s> Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief. 2 In view of the nationwide importance of the decision, we invited the Attorney General of the United [349 U.S. 294, 299] States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument. </s> These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief. </s> Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts. 3 [349 U.S. 294, 300] </s> In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies 4 and by a facility for adjusting and reconciling public and private needs. 5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. </s> While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools [349 U.S. 294, 301] on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases. </s> The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case - ordering the immediate admission of the plaintiffs to schools previously attended only by white children - is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1] 347 U.S. 483; 347 U.S. 497. </s> [Footnote 2] Further argument was requested on the following questions, 347 U.S. 483, 495-496, n. 13, previously propounded by the Court: "4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment "(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or "(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? "5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (b), "(a) should this Court formulate detailed decrees in these cases; "(b) if so, what specific issues should the decrees reach; "(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; "(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?" </s> [Footnote 3] The cases coming to us from Kansas, South Carolina, and Virginia were originally heard by three-judge District Courts convened under 28 U.S.C. 2281 and 2284. These cases will accordingly be remanded to those three-judge courts. See Briggs v. Elliott, 342 U.S. 350. </s> [Footnote 4] See Alexander v. Hillman, 296 U.S. 222, 239. </s> [Footnote 5] See Hecht Co. v. Bowles, 321 U.S. 321, 329-330. </s> [349 U.S. 294, 302]

United States Supreme Court LOCKHART v. McCREE(1986) No. 84-1865 Argued: January 13, 1986Decided: May 5, 1986 </s> At respondent's Arkansas state-court trial for capital felony murder, the judge at voir dire removed for cause, over respondent's objections, those prospective jurors who stated that they could not under any circumstances vote for the imposition of the death penalty - that is, so-called "Witherspoon-excludables" under the principles of Witherspoon v. Illinois, 391 U.S. 510 . The jury convicted respondent, but at the sentencing phase of the trial it rejected the State's request for the death penalty and set punishment at life imprisonment without parole. The conviction was affirmed on appeal, and respondent's petition for state postconviction relief was denied. He then sought federal habeas corpus relief, contending that the "death qualification" of the jury by the removal for cause of the "Witherspoon-excludables" violated his rights under the Sixth and Fourteenth Amendments to have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community. The District Court ruled that "death qualification" of the jury prior to the guilt phase of the bifurcated trial violated both the fair-cross-section and the impartiality requirements of the Constitution. The Court of Appeals affirmed on the ground that removal for cause of "Witherspoon-excludables" violated respondent's Sixth Amendment right to a jury selected from a fair cross section of the community. </s> Held: </s> The Constitution does not prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial. This is so even assuming, arguendo, that the social science studies introduced in the courts below were adequate to establish that "death qualification" in fact produces juries somewhat more "conviction-prone" than "non-death-qualified" juries. Pp. 173-183. </s> (a) "Death qualification" of a jury does not violate the fair-cross-section requirement of the Sixth Amendment, which applies to jury panels or venires but does not require that petit juries actually chosen reflect the composition of the community at large. Even if the requirement were extended to petit juries, the essence of a fair-cross-section claim is the systematic exclusion of a "distinctive [476 U.S. 162, 163] group" in the community - such as blacks, women, and Mexican-Americans - for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case. Groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the "Witherspoon-excludables" at issue here, are not "distinctive groups" for fair-cross-section purposes. "Death qualification" is carefully designed to serve the State's legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial. Pp. 173-177. </s> (b) Nor does "death qualification" of a jury violate the constitutional right to an impartial jury on the theory asserted by respondent that, because all individual jurors are to some extent predisposed towards one result or another, a constitutionally impartial jury can be constructed only by "balancing" the various predispositions of the individual jurors, and when the State "tips the scales" by excluding prospective jurors with a particular viewpoint, an impermissibly partial jury results. An impartial jury consists of nothing more than jurors who will conscientiously apply the law and find the facts. Respondent's view of jury impartiality is both illogical and impractical. Neither Witherspoon, supra, nor Adams v. Texas, 448 U.S. 38 , supports respondent's contention that a State violates the Constitution whenever it "slants" the jury by excluding a group of individuals more likely than the population at large to favor the defendant. Here, the removal for cause of "Witherspoon-excludables" serves the State's entirely proper interest in obtaining a single jury (as required by Arkansas law) that could impartially decide all of the issues at both the guilt and the penalty phases of respondent's trial. Moreover, both Witherspoon and Adams dealt with the special context of capital sentencing, where the range of jury discretion necessarily gave rise to far greater concern over the effects of an "imbalanced" jury. The case at bar, by contrast, deals not with capital sentencing, but with the jury's more traditional role of finding the facts and determining the guilt or innocence of a criminal defendant, where jury discretion is more channeled. Pp. 177-183. </s> 758 F.2d 226, reversed. </s> REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BLACKMUN, J., concurred in the result. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 184. </s> John Steven Clark, Attorney General of Arkansas, argued the cause for petitioner. With him on the briefs were Jack [476 U.S. 162, 164] Gillean, Assistant Attorney General, Victra L. Fewell, and Leslie M. Powell. </s> Samuel R. Gross argued the cause for respondent. With him on the brief were John Charles Boger, James S. Liebman, William R. Wilson, Jr., and Anthony G. Amsterdam. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Susan Crump, David Crump, Charles K. Graddick, Attorney General of Alabama, John J. Kelly, Chief State's Attorney of Connecticut, Jim Smith, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, James Thomas Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Edwin Lloyd Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Irwin I. Kimmelman, Attorney General of New Jersey, Paul Bardacke, Attorney General of New Mexico, David B. Frohnmayer, Attorney General of Oregon, Mark V. Meierhenry, Attorney General of South Dakota, Jim Mattox, Attorney General of Texas, Kenneth O. Eikenberry, Attorney General of Washington, and Stephen E. Merrill, Attorney General of New Hampshire; and for the State of Arizona et al. by Michael C. Turpen, Attorney General of Oklahoma, and David W. Lee, Hugh A. Manning, Tomilou Gentry Liddell, Robert A. Nance, and Jean M. LeBlanc, Assistant Attorneys General, Robert K. Corbin, Attorney General of Arizona, John Van de Kamp, Attorney General of California, Charles M. Oberly, Attorney General of Delaware, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Stephen H. Sachs, Attorney General of Maryland, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, Anthony J. Celebrezze, Jr., Attorney General of Ohio, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Travis Medlock, Attorney General of South Carolina, W. J. Michael Cody, Attorney General of Tennessee, David L. Wilkinson, Attorney General of Utah, William G. Broaddus, Attorney General of Virginia, and Archie G. McClintock, Attorney General of Wyoming. </s> Briefs of amici curiae urging affirmance were filed for the National Center on Institutions and Alternatives by Allan Blumstein and Eric M. Freedman; for Robert Popper et al. by Robert Popper, pro se; and for Billy Junior Woodward by Reed E. Hundt and Thomas M. Carpenter. </s> Donald N. Bersoff filed a brief for the American Psychological Association as amicus curiae. [476 U.S. 162, 165] </s> JUSTICE REHNQUIST delivered the opinion of the Court. </s> In this case we address the question left open by our decision nearly 18 years ago in Witherspoon v. Illinois, 391 U.S. 510 (1968): Does the Constitution prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial? See id., at 520, n. 18; Bumper v. North Carolina, 391 U.S. 543, 545 (1968). We hold that it does not. </s> Respondent Ardia McCree filed a habeas corpus petition in the United States District Court for the Eastern District of Arkansas claiming that such removal for cause violated the Sixth and Fourteenth Amendments and, after McCree's case was consolidated with another habeas case involving the same claim on remand from the Court of Appeals for the Eighth Circuit, the District Court ruled in McCree's favor and granted habeas relief. Grigsby v. Mabry, 569 F. Supp. 1273 (1983). A sharply divided Eighth Circuit affirmed, Grigsby v. Mabry, 758 F.2d 226 (1985) (en banc), creating a conflict with recent decisions of the Fourth, Fifth, Seventh, and Eleventh Circuits. See Keeten v. Garrison, 742 F.2d 129, 133-135 (CA4 1984), cert. pending, No. 84-6187; Smith v. Balkcom, 660 F.2d 573, 576-578 (CA5 1981), modified on other grounds, 671 F.2d 858, cert. denied sub nom. Tison v. Arizona, 459 U.S. 882 (1982); Spinkellink v. Wainwright, 578 F.2d 582, 594 (CA5 1978), cert. denied, 440 U.S. 976 (1979); United States ex rel. Clark v. Fike, 538 F.2d 750, 761-762 (CA7 1976), cert. denied, 429 U.S. 1064 (1977); and Corn v. Zant, 708 F.2d 549, 564 (CA11 1983), cert. denied, 467 U.S. 1220 (1984). We granted certiorari to resolve the conflict, 474 U.S. 816 (1985), and now reverse the judgment of the Eighth Circuit. </s> On the morning of February 14, 1978, a combination gift shop and service station in Camden, Arkansas, was robbed, [476 U.S. 162, 166] and Evelyn Boughton, the owner, was shot and killed. That afternoon, Ardia McCree was arrested in Hot Springs, Arkansas, after a police officer saw him driving a maroon and white Lincoln Continental matching an eyewitness' description of the getaway car used by Boughton's killer. The next evening, McCree admitted to police that he had been at Boughton's shop at the time of the murder. He claimed, however, that a tall black stranger wearing an overcoat first asked him for a ride, then took McCree's rifle out of the back of the car and used it to kill Boughton. McCree also claimed that, after the murder, the stranger rode with McCree to a nearby dirt road, got out of the car, and walked away with the rifle. McCree's story was contradicted by two eyewitnesses who saw McCree's car between the time of the murder and the time when McCree said the stranger got out and walked away, and who stated that they saw only one person in the car. The police found McCree's rifle and a bank bag from Boughton's shop alongside the dirt road. Based on ballistics tests, a Federal Bureau of Investigation officer testified that the bullet that killed Boughton had been fired from McCree's rifle. </s> McCree was charged with capital felony murder in violation of Ark. Stat. Ann. 41-1501(1)(a) (1977). In accordance with Arkansas law, see Neal v. State, 259 Ark. 27, 31, 531 S. W. 2d 17, 21 (1975), the trial judge at voir dire removed for cause, over McCree's objections, those prospective jurors who stated that they could not under any circumstances vote for the imposition of the death penalty. Eight prospective jurors were excluded for this reason. The jury convicted McCree of capital felony murder, but rejected the State's request for the death penalty, instead setting McCree's punishment at life imprisonment without parole. McCree's conviction was affirmed on direct appeal, McCree v. State, 266 Ark. 465, 585 S. W. 2d 938 (1979), and his petition for state postconviction relief was denied. [476 U.S. 162, 167] </s> McCree then filed a federal habeas corpus petition raising, inter alia, the claim that "death qualification," or the removal for cause of the so-called "Witherspoon-excludable" prospective jurors, 1 violated his right under the Sixth and Fourteenth Amendments to have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community. By stipulation of the parties, this claim was consolidated with another pending habeas case involving the same claim, which had been remanded by the Eighth Circuit for an evidentiary hearing in the District Court. App. 9-11; Grigsby v. Mabry, 637 F.2d 525 (1980). The District Court denied the remainder of McCree's petition, and the Eighth Circuit affirmed. McCree v. Housewright, 689 F.2d 797 (1982), cert. denied, 460 U.S. 1088 (1983). </s> The District Court held a hearing on the "death qualification" issue in July 1981, receiving in evidence numerous social science studies concerning the attitudes and beliefs of "Witherspoon-excludables," along with the potential effects of excluding them from the jury prior to the guilt phase of a bifurcated capital trial. In August 1983, the court concluded, based on the social science evidence, that "death qualification" produced juries that "were more prone to convict" capital defendants than "non-death-qualified" juries. Grigsby v. Mabry, 569 F. Supp., at 1323. The court ruled [476 U.S. 162, 168] that "death qualification" thus violated both the fair-cross-section and impartiality requirements of the Sixth and Fourteenth Amendments, and granted McCree habeas relief. Id., at 1324. 2 </s> The Eighth Circuit found "substantial evidentiary support" for the District Court's conclusion that the removal for cause of "Witherspoon-excludables" resulted in "conviction-prone" juries, and affirmed the grant of habeas relief on the ground that such removal for cause violated McCree's constitutional right to a jury selected from a fair cross section of the community. Grigsby v. Mabry, 758 F.2d, at 229. The Eighth Circuit did not address McCree's impartiality claim. Ibid. The Eighth Circuit left it up to the discretion of the State "to construct a fair process" for future capital trials that would comply with the Sixth Amendment. Id., at 242-243. Four judges dissented. Id., at 243-251. </s> Before turning to the legal issues in the case, we are constrained to point out what we believe to be several serious flaws in the evidence upon which the courts below reached the conclusion that "death qualification" produces "conviction-prone" juries. 3 McCree introduced into evidence [476 U.S. 162, 169] some 15 social science studies in support of his constitutional claims, but only 6 of the studies even purported to measure the potential effects on the guilt-innocence determination of the removal from the jury of "Witherspoon-excludables." 4 Eight of the remaining nine studies dealt solely with generalized attitudes and beliefs about the death penalty and other aspects of the criminal justice system, and were thus, at best, only marginally relevant to the constitutionality of McCree's conviction. 5 The 15th and final study [476 U.S. 162, 170] dealt with the effects on prospective jurors of voir dire questioning about their attitudes toward the death penalty, 6 an issue McCree raised in his brief to this Court but that counsel for McCree admitted at oral argument would not, standing alone, give rise to a constitutional violation. 7 </s> Of the six studies introduced by McCree that at least purported to deal with the central issue in this case, namely, the potential effects on the determination of guilt or innocence of excluding "Witherspoon-excludables" from the jury, three were also before this Court when it decided Witherspoon. 8 There, this Court reviewed the studies and concluded: </s> "The data adduced by the petitioner . . . are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors [476 U.S. 162, 171] opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was." 391 U.S. at 517-518 (footnote omitted). </s> It goes almost without saying that if these studies were "too tentative and fragmentary" to make out a claim of constitutional error in 1968, the same studies, unchanged but for having aged some 18 years, are still insufficient to make out such a claim in this case. </s> Nor do the three post-Witherspoon studies introduced by McCree on the "death qualification" issue provide substantial support for the "per se constitutional rule" McCree asks this Court to adopt. All three of the "new" studies were based on the responses of individuals randomly selected from some segment of the population, but who were not actual jurors sworn under oath to apply the law to the facts of an actual case involving the fate of an actual capital defendant. 9 We have serious doubts about the value of these studies in predicting the behavior of actual jurors. See Grigsby v. Mabry, 758 F.2d, at 248, n. 7 (J. Gibson, J., dissenting). In addition, two of the three "new" studies did not even attempt to simulate the process of jury deliberation, 10 and none of the "new" studies was able to predict to what extent, if any, the presence of one or more "Witherspoon-excludables" on a [476 U.S. 162, 172] guilt-phase jury would have altered the outcome of the guilt determination. 11 </s> Finally, and most importantly, only one of the six "death qualification" studies introduced by McCree even attempted to identify and account for the presence of so-called "nullifiers," or individuals who, because of their deep-seated opposition to the death penalty, would be unable to decide a capital defendant's guilt or innocence fairly and impartially. 12 McCree concedes, as he must, that "nullifiers" may properly be excluded from the guilt-phase jury, and studies that fail to take into account the presence of such "nullifiers" thus are fatally flawed. 13 Surely a "per se constitutional rule" as far [476 U.S. 162, 173] reaching as the one McCree proposes should not be based on the results of the lone study that avoids this fundamental flaw. </s> Having identified some of the more serious problems with McCree's studies, however, we will assume for purposes of this opinion that the studies are both methodologically valid and adequate to establish that "death qualification" in fact produces juries somewhat more "conviction-prone" than "non-death-qualified" juries. We hold, nonetheless, that the Constitution does not prohibit the States from "death qualifying" juries in capital cases. </s> The Eighth Circuit ruled that "death qualification" violated McCree's right under the Sixth Amendment, as applied to the States via incorporation through the Fourteenth Amendment, see Duncan v. Louisiana, 391 U.S. 145, 148 -158 (1968), to a jury selected from a representative cross section of the community. But we do not believe that the fair-cross-section requirement can, or should, be applied as broadly as that court attempted to apply it. We have never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large. See Duren v. Missouri, 439 U.S. 357, 363 -364 (1979); Taylor v. Louisiana, 419 U.S. 522, 538 (1975) ("[W]e impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population"); cf. Batson v. Kentucky, ante, at 84-85, n. 4 (expressly declining to address "fair-cross-section" challenge to discriminatory use of peremptory challenges). 14 The limited [476 U.S. 162, 174] scope of the fair-cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly "representative" petit jury, see ante, at 85-86, n. 6, a basic truth that the Court of Appeals itself acknowledged for many years prior to its decision in the instant case. See United States v. Childress, 715 F.2d 1313 (CA8 1983) (en banc), cert. denied, 464 U.S. 1063 (1984); Pope v. United States, 372 F.2d 710, 725 (CA8 1967) (Blackmun, J.) ("The point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn"), vacated on other grounds, 392 U.S. 651 (1968). We remain convinced that an extension of the fair-cross-section requirement to petit juries would be unworkable and unsound, and we decline McCree's invitation to adopt such an extension. </s> But even if we were willing to extend the fair-cross-section requirement to petit juries, we would still reject the Eighth Circuit's conclusion that "death qualification" violates that requirement. The essence of a "fair-cross-section" claim is the systematic exclusion of "a `distinctive' group in the community." Duren, supra, at 364. In our view, groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the "Witherspoon-excludables" at issue here, are not "distinctive groups" for fair-cross-section purposes. </s> We have never attempted to precisely define the term "distinctive group," and we do not undertake to do so today. But we think it obvious that the concept of "distinctiveness" must be linked to the purposes of the fair-cross-section requirement. In Taylor, supra, we identified those purposes as (1) "guard[ing] against the exercise of arbitrary power" and ensuring that the "commonsense judgment of the community" will act as "a hedge against the overzealous or mistaken prosecutor," (2) preserving "public confidence in the [476 U.S. 162, 175] fairness of the criminal justice system," and (3) implementing our belief that "sharing in the administration of justice is a phase of civic responsibility." Id., at 530-531. </s> Our prior jury-representativeness cases, whether based on the fair-cross-section component of the Sixth Amendment or the Equal Protection Clause of the Fourteenth Amendment, have involved such groups as blacks, see Peters v. Kiff, 407 U.S. 493 (1972) (opinion of MARSHALL, J.) (equal protection); women, see Duren, supra (fair cross section); Taylor, supra (same); and Mexican-Americans, see Castaneda v. Partida, 430 U.S. 482 (1977) (equal protection). The wholesale exclusion of these large groups from jury service clearly contravened all three of the aforementioned purposes of the fair-cross-section requirement. Because these groups were excluded for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case, the exclusion raised at least the possibility that the composition of juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the common-sense judgment of the community. In addition, the exclusion from jury service of large groups of individuals not on the basis of their inability to serve as jurors, but on the basis of some immutable characteristic such as race, gender, or ethnic background, undeniably gave rise to an "appearance of unfairness." Finally, such exclusion improperly deprived members of these often historically disadvantaged groups of their right as citizens to serve on juries in criminal cases. </s> The group of "Witherspoon-excludables" involved in the case at bar differs significantly from the groups we have previously recognized as "distinctive." "Death qualification," unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the State's concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of [476 U.S. 162, 176] a capital trial. 15 There is very little danger, therefore, and McCree does not even argue, that "death qualification" was instituted as a means for the State to arbitrarily skew the composition of capital-case juries. 16 </s> Furthermore, unlike blacks, women, and Mexican-Americans, "Witherspoon-excludables" are singled out for exclusion in capital cases on the basis of an attribute that is within the individual's control. It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law. Because the group of "Witherspoon-excludables" includes only those who cannot and will not conscientiously obey the law with respect to one of the issues in a capital case, "death qualification" hardly can be said to create an "appearance of unfairness." </s> Finally, the removal for cause of "Witherspoon-excludables" in capital cases does not prevent them from serving as jurors in other criminal cases, and thus leads to no substantial deprivation of their basic rights of citizenship. They are treated no differently than any juror who expresses the view that he would be unable to follow the law in a particular case. </s> In sum, "Witherspoon-excludables," or for that matter any other group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a [476 U.S. 162, 177] particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-cross-section requirement. See Lockett v. Ohio, 438 U.S. 586, 597 (1978) ("Nothing in Taylor, however, suggests that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge"). It is for this reason that we conclude that "Witherspoon-excludables" do not constitute a "distinctive group" for fair-cross-section purposes, and hold that "death qualification" does not violate the fair-cross-section requirement. </s> McCree argues that, even if we reject the Eighth Circuit's fair-cross-section holding, we should affirm the judgment below on the alternative ground, adopted by the District Court, that "death qualification" violated his constitutional right to an impartial jury. McCree concedes that the individual jurors who served at his trial were impartial, as that term was defined by this Court in cases such as Irvin v. Dowd, 366 U.S. 717, 723 (1961) ("It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court"), and Reynolds v. United States, 98 U.S. 145 (1879). He does not claim that pretrial publicity, see Rideau v. Louisiana, 373 U.S. 723 (1963), ex parte communications, see Remmer v. United States, 347 U.S. 227 (1954), or other undue influence, see Estes v. Texas, 381 U.S. 532 (1965), affected the jury's deliberations. In short, McCree does not claim that his conviction was tainted by any of the kinds of jury bias or partiality that we have previously recognized as violative of the Constitution. Instead, McCree argues that his jury lacked impartiality because the absence of "Witherspoon-excludables" "slanted" the jury in favor of conviction. </s> We do not agree. McCree's "impartiality" argument apparently is based on the theory that, because all individual jurors are to some extent predisposed towards one result or another, a constitutionally impartial jury can be constructed [476 U.S. 162, 178] only by "balancing" the various predispositions of the individual jurors. Thus, according to McCree, when the State "tips the scales" by excluding prospective jurors with a particular viewpoint, an impermissibly partial jury results. We have consistently rejected this view of jury impartiality, including as recently as last Term when we squarely held that an impartial jury consists of nothing more than "jurors who will conscientiously apply the law and find the facts." Wainwright v. Witt, 469 U.S. 412, 423 (1985) (emphasis added); see also Smith v. Phillips, 455 U.S. 209, 217 (1982) ("Due process means a jury capable and willing to decide the case solely on the evidence before it"); Irvin v. Dowd, supra, at 722 ("In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors"). </s> The view of jury impartiality urged upon us by McCree is both illogical and hopelessly impractical. McCree characterizes the jury that convicted him as "slanted" by the process of "death qualification." But McCree admits that exactly the same 12 individuals could have ended up on his jury through the "luck of the draw," without in any way violating the constitutional guarantee of impartiality. Even accepting McCree's position that we should focus on the jury rather than the individual jurors, it is hard for us to understand the logic of the argument that a given jury is unconstitutionally partial when it results from a state-ordained process, yet impartial when exactly the same jury results from mere chance. On a more practical level, if it were true that the Constitution required a certain mix of individual viewpoints on the jury, then trial judges would be required to undertake the Sisyphean task of "balancing" juries, making sure that each contains the proper number of Democrats and Republicans, young persons and old persons, white-collar executives and blue-collar laborers, and so on. Adopting McCree's concept of jury impartiality would also likely require the elimination of peremptory challenges, which are commonly used by both [476 U.S. 162, 179] the State and the defendant to attempt to produce a jury favorable to the challenger. </s> McCree argues, however, that this Court's decisions in Witherspoon and Adams v. Texas, 448 U.S. 38 (1980), stand for the proposition that a State violates the Constitution whenever it "slants" the jury by excluding a group of individuals more likely than the population at large to favor the criminal defendant. We think McCree overlooks two fundamental differences between Witherspoon and Adams and the instant case, and therefore misconceives the import and scope of those two decisions. </s> First, the Court in Witherspoon viewed the Illinois system as having been deliberately slanted for the purpose of making the imposition of the death penalty more likely. The Court said: </s> "But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die. </s> "It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal `organized to convict.' Fay v. New York, 332 U.S. 261, 294 1947.. See Tumey v. Ohio, 273 U.S. 510 1927.. It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death." 391 U.S., at 520 -521 (footnotes omitted). </s> In Adams v. Texas, supra, the Court explained the rationale for Witherspoon as follows: </s> "In this context, the Court held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination [476 U.S. 162, 180] that they had conscientious scruples against or were otherwise opposed to capital punishment. The State was held to have no valid interest in such a broad-based rule of exclusion, since `[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him . . . and can thus obey the oath he takes as a juror.' Witherspoon v. Illinois, 391 U.S., at 519 ." 448 U.S., at 43 . </s> Adams, in turn, involved a fairly straightforward application of the Witherspoon rule to the Texas capital punishment scheme. See Adams, supra, at 48 (Texas exclusion statute "focuses the inquiry directly on the prospective juror's beliefs about the death penalty, and hence clearly falls within the scope of the Witherspoon doctrine"). </s> Here, on the other hand, the removal for cause of "Witherspoon-excludables" serves the State's entirely proper interest in obtaining a single jury that could impartially decide all of the issues in McCree's case. Arkansas by legislative enactment and judicial decision provides for the use of a unitary jury in capital cases. See Ark. Stat. Ann. 41-1301(3) (1977); Rector v. State, 280 Ark. 385, 395, 659 S. W. 2d 168, 173 (1983), cert. denied, 466 U.S. 988 (1984). We have upheld against constitutional attack the Georgia capital sentencing plan which provided that the same jury must sit in both phases of a bifurcated capital murder trial, Gregg v. Georgia, 428 U.S. 153, 158 , 160, 163 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.), and since then have observed that we are "unwilling to say that there is any one right way for a State to set up its capital sentencing scheme." Spaziano v. Florida, 468 U.S. 447, 464 (1984). </s> The Arkansas Supreme Court recently explained the State's legislative choice to require unitary juries in capital cases: </s> "It has always been the law in Arkansas, except when the punishment is mandatory, that the same jurors who have the responsibility for determining guilt or innocence [476 U.S. 162, 181] must also shoulder the burden of fixing the punishment. That is as it should be, for the two questions are necessarily interwoven." Rector, supra, at 395, 659 S. W. 2d, at 173. </s> Another interest identified by the State in support of its system of unitary juries is the possibility that, in at least some capital cases, the defendant might benefit at the sentencing phase of the trial from the jury's "residual doubts" about the evidence presented at the guilt phase. The dissenting opinion in the Court of Appeals also adverted to this interest: </s> "[A]s several courts have observed, jurors who decide both guilt and penalty are likely to form residual doubts or `whimsical' doubts . . . about the evidence so as to bend them to decide against the death penalty. Such residual doubt has been recognized as an extremely effective argument for defendants in capital cases. To divide the responsibility . . . to some degree would eliminate the influence of such doubts." 758 F.2d, at 247-248 (J. Gibson, J., dissenting) (citations omitted). </s> JUSTICE MARSHALL's dissent points out that some States which adhere to the unitary jury system do not allow the defendant to argue "residual doubts" to the jury at sentencing. But while this may justify skepticism as to the extent to which such States are willing to go to allow defendants to capitalize on "residual doubts," it does not wholly vitiate the claimed interest. Finally, it seems obvious to us that in most, if not all, capital cases much of the evidence adduced at the guilt phase of the trial will also have a bearing on the penalty phase; if two different juries were to be required, such testimony would have to be presented twice, once to each jury. As the Arkansas Supreme Court has noted, "[s]uch repetitive trials could not be consistently fair to the State and perhaps not even to the accused." Rector, supra, at 396, 659 S. W. 2d, at 173. [476 U.S. 162, 182] </s> Unlike the Illinois system criticized by the Court in Witherspoon, and the Texas system at issue in Adams, the Arkansas system excludes from the jury only those who may properly be excluded from the penalty phase of the deliberations under Witherspoon, Adams, and Wainwright v. Witt, 469 U.S. 412 (1985). 17 That State's reasons for adhering to its preference for a single jury to decide both the guilt and penalty phases of a capital trial are sufficient to negate the inference which the Court drew in Witherspoon concerning the lack of any neutral justification for the Illinois rule on jury challenges. </s> Second, and more importantly, both Witherspoon and Adams dealt with the special context of capital sentencing, where the range of jury discretion necessarily gave rise to far greater concern over the possible effects of an "imbalanced" jury. As we emphasized in Witherspoon: </s> "[I]n Illinois, as in other States, the jury is given broad discretion to decide whether or not death is `the proper penalty' in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision. </s> ". . . . Guided by neither rule nor standard, `free to select or reject as it [sees] fit,' a jury that must choose between life imprisonment and capital punishment can do little more - and must do nothing less - than express the conscience of the community on the ultimate question of life or death." 391 U.S., at 519 (emphasis in original; footnotes omitted). </s> Because capital sentencing under the Illinois statute involved such an exercise of essentially unfettered discretion, we held that the State violated the Constitution when it "crossed the [476 U.S. 162, 183] line of neutrality" and "produced a jury uncommonly willing to condemn a man to die." Id., at 520-521. </s> In Adams, we applied the same basic reasoning to the Texas capital sentencing scheme, which, although purporting to limit the jury's role to answering several "factual" questions, in reality vested the jury with considerable discretion over the punishment to be imposed on the defendant. See 448 U.S., at 46 ("This process is not an exact science, and the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths"); cf. Jurek v. Texas, 428 U.S. 262, 273 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.) ("Texas law essentially requires that . . . in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it"). Again, as in Witherspoon, the discretionary nature of the jury's task led us to conclude that the State could not "exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty." Adams, 448 U.S., at 50 . </s> In the case at bar, by contrast, we deal not with capital sentencing, but with the jury's more traditional role of finding the facts and determining the guilt or innocence of a criminal defendant, where jury discretion is more channeled. We reject McCree's suggestion that Witherspoon and Adams have broad applicability outside the special context of capital sentencing, 18 and conclude that those two decisions do not support the result reached by the Eighth Circuit here. </s> In our view, it is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints. Prospective jurors [476 U.S. 162, 184] come from many different backgrounds, and have many different attitudes and predispositions. But the Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case. We hold that McCree's jury satisfied both aspects of this constitutional standard. The judgment of the Court of Appeals is therefore </s> Reversed. </s> JUSTICE BLACKMUN concurs in the result. </s> Footnotes [Footnote 1 In Wainwright v. Witt, 469 U.S. 412 (1985), this Court emphasized that the Constitution does not require "ritualistic adherence" to the "talismanic" standard for juror exclusion set forth in footnote 21 of the Witherspoon opinion. 469 U.S., at 419 , 423. Rather, the proper constitutional standard is simply whether a prospective juror's views would "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id., at 433, quoting Adams v. Texas, 448 U.S. 38, 45 (1980). Thus, the term "Witherspoon-excludable" is something of a misnomer. Nevertheless, because the parties and the courts below have used the term "Witherspoon-excludables" to identify the group of prospective jurors at issue in this case, we will use the same term in this opinion. </s> [Footnote 2 James Grigsby, the habeas petitioner with whose case McCree's had been consolidated, died prior to the District Court's decision, so his case became moot. Grigsby v. Mabry, 569 F. Supp., at 1277, n. 2. Dewayne Hulsey, a third habeas petitioner whose "death qualification" claim was consolidated with Grigsby's and McCree's, was found to be procedurally barred, under Wainwright v. Sykes, 433 U.S. 72 (1977), from asserting the claim. Hulsey v. Sargent, 550 F. Supp. 179 (ED Ark. 1981). </s> [Footnote 3 McCree argues that the "factual" findings of the District Court and the Eighth Circuit on the effects of "death qualification" may be reviewed by this Court only under the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a). Because we do not ultimately base our decision today on the invalidity of the lower courts' "factual" findings, we need not decide the "standard of review" issue. We are far from persuaded, however, that the "clearly erroneous" standard of Rule 52(a) applies to the kind of "legislative" facts at issue here. See generally Dunagin v. City of Oxford, Mississippi, 718 F.2d 738, 748, n. 8 (CA5 1983) (en banc) (plurality opinion of Reavley, J.). The difficulty with applying such a standard to [476 U.S. 162, 169] "legislative" facts is evidenced here by the fact that at least one other Court of Appeals, reviewing the same social science studies as introduced by McCree, has reached a conclusion contrary to that of the Eighth Circuit. See Keeten v. Garrison, 742 F.2d 129, 133, n. 7 (CA4 1984) (disagreeing that studies show relationship between generalized attitudes and behavior as jurors), cert. pending, No. 84-6187. </s> [Footnote 4 The Court of Appeals described the following studies as "conviction-proneness surveys": H. Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (University of Chicago Monograph 1968) (Zeisel); W. Wilson, Belief in Capital Punishment and Jury Performance (unpublished manuscript, University of Texas, 1964) (Wilson); Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv. Civ. Rights-Civ. Lib. L. Rev. 53 (1970) (Goldberg); Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971) (Jurow); and Cowan, Thompson, & Ellsworth, The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum. Behav. 53 (1984) (Cowan-Deliberation). In addition, McCree introduced evidence on this issue from a Harris Survey conducted in 1971. Louis Harris & Associates, Inc., Study No. 2016 (1971) (Harris-1971). </s> [Footnote 5 The Court of Appeals described the following studies as "attitudinal and demographic surveys": Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1 (1970); Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson L. J. 11 (1980); Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31 (1984); and Precision Research, Inc., Survey No. 1286 (1981). In addition, McCree introduced evidence on these issues from Thompson, Cowan, Ellsworth, [476 U.S. 162, 170] & Harrington, Death Penalty Attitudes and Conviction Proneness, 8 Law & Hum. Behav. 95 (1984); Ellsworth, Bukaty, Cowan, & Thompson, The Death-Qualified Jury and the Defense of Insanity, 8 Law & Hum. Behav. 81 (1984); A. Young, Arkansas Archival Study (unpublished, 1981); and various Harris, Gallup, and National Opinion Research Center polls conducted between 1953 and 1981. </s> [Footnote 6 McCree introduced evidence on this issue from Haney, On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Hum. Behav. 121 (1984). </s> [Footnote 7 We would in any event reject the argument that the very process of questioning prospective jurors at voir dire about their views of the death penalty violates the Constitution. McCree concedes that the State may challenge for cause prospective jurors whose opposition to the death penalty is so strong that it would prevent them from impartially determining a capital defendant's guilt or innocence. Ipso facto, the State must be given the opportunity to identify such prospective jurors by questioning them at voir dire about their views of the death penalty. </s> [Footnote 8 The petitioner in Witherspoon cited the Wilson and Goldberg studies, and a prepublication draft of the Zeisel study. 391 U.S., at 517 , n. 10; see n. 4, supra. </s> [Footnote 9 The Harris-1971 study polled 2,068 adults from throughout the United States, the Cowan-Deliberation study involved 288 jury-eligible residents of San Mateo and Santa Clara Counties in California, and the Jurow study was based on the responses of 211 employees of the Sperry Rand Corporation in New York. </s> [Footnote 10 The Harris-1971 and Jurow studies did not allow for group deliberation, but rather measured only individual responses. </s> [Footnote 11 JUSTICE MARSHALL's dissent refers to an "essential unanimity" of support among social science researchers and other academics for McCree's assertion that "death qualification" has a significant effect on the outcome of jury deliberations at the guilt phase of capital trials. See post, at 189. At least one of the articles relied upon by the dissent candidly acknowledges, however, that its conclusions ultimately must rest on "[a] certain amount of . . . conjecture" and a willingness "to transform behavioral suspicions into doctrine." Finch & Ferraro, The Empirical Challenge to Death-Qualified Juries: On Further Examination, 65 Neb. L. Rev. 21, 67 (1986). As the authors of the article explain: </s> "[U]ncertainty inheres in every aspect of the capital jury's operation, whether one focuses on the method of identifying excludable jurors or the deliberative process through which verdicts are reached. So it is that, some seventeen years after Witherspoon, no definitive conclusions can be stated as to the frequency or the magnitude of the effects of death qualification. </s> . . . . . </s> "Nor is it likely that further empirical research can add significantly to the current understanding of death qualification. The true magnitude of the phenomenon of conviction proneness is probably unmeasurable, given the complexity of capital cases and capital adjudication." Id., at 66-67 (footnote omitted). </s> [Footnote 12 Only the Cowan-Deliberation study attempted to take into account the presence of "nullifiers." </s> [Footnote 13 The effect of this flaw on the outcome of a particular study is likely to be significant. The Cowan-Deliberation study revealed that approximately 37% of the "Witherspoon-excludables" identified in the study were also "nullifiers." </s> [Footnote 14 The only case in which we have intimated that the fair-cross-section requirement might apply outside the context of jury panels or venires, Ballew v. Georgia, 435 U.S. 223 (1978) (opinion of BLACKMUN, J.), did not involve jury selection at all, but rather the size of the petit jury. JUSTICE BLACKMUN's opinion announcing the judgment, and the opinions concurring in the judgment which agreed with him, expressed the view that Georgia's limitation of the size of juries to five "prevents juries from truly representing their communities," id., at 239. </s> [Footnote 15 See Rector v. State, 280 Ark. 385, 396-397, 659 S. W. 2d 168, 173-174 (1983), cert. denied, 466 U.S. 988 (1984). McCree does not dispute the existence of this interest, but merely contends that it is not substantial. See Brief for Respondent 74-79. </s> [Footnote 16 McCree asserts that the State often will request the death penalty in particular cases solely for the purpose of "death qualifying" the jury, with the intent ultimately to "waive" the death penalty after a conviction is obtained. We need not consider the implications of this assertion, since the State did not "waive" the death penalty in McCree's case. </s> [Footnote 17 The rule applied by Arkansas to exclude these prospective jurors was scarcely a novel one; as long ago as Logan v. United States, 144 U.S. 263 (1892), this Court approved such a practice in the federal courts, commenting that it was also followed "by the courts of every State in which the question has arisen." Id., at 298. </s> [Footnote 18 The majority in Adams rejected the dissent's claim that there was "no plausible distinction between the role of the jury in the guilt/innocence phase of the trial and its role, as defined by the State of Texas, in the sentencing phase." 448 U.S., at 54 (REHNQUIST, J., dissenting). </s> JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting. </s> Eighteen years ago, this Court vacated the sentence of a defendant from whose jury the State had excluded all venirepersons expressing any scruples against capital punishment. Such a practice, the Court held, violated the Constitution by creating a "tribunal organized to return a verdict of death." Witherspoon v. Illinois, 391 U.S. 510, 521 (1968). The only venirepersons who could be constitutionally excluded from service in capital cases were those who "made unmistakably clear . . . that they would automatically vote against the imposition of capital punishment" or that they could not assess the defendant's guilt impartially. Id., at 522-523, n. 21. </s> Respondent contends here that the "death-qualified" jury that convicted him, from which the State, as authorized by Witherspoon, had excluded all venirepersons unwilling to consider imposing the death penalty, was in effect "organized to return a verdict" of guilty. In support of this claim, he has presented overwhelming evidence that death-qualified juries are substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment are permitted to serve. Respondent [476 U.S. 162, 185] does not challenge the application of Witherspoon to the jury in the sentencing stage of bifurcated capital cases. Neither does he demand that individuals unable to assess culpability impartially ("nullifiers") be permitted to sit on capital juries. All he asks is the chance to have his guilt or innocence determined by a jury like those that sit in noncapital cases - one whose composition has not been tilted in favor of the prosecution by the exclusion of a group of prospective jurors uncommonly aware of an accused's constitutional rights but quite capable of determining his culpability without favor or bias. </s> With a glib nonchalance ill suited to the gravity of the issue presented and the power of respondent's claims, the Court upholds a practice that allows the State a special advantage in those prosecutions where the charges are the most serious and the possible punishments, the most severe. The State's mere announcement that it intends to seek the death penalty if the defendant is found guilty of a capital offense will, under today's decision, give the prosecution license to empanel a jury especially likely to return that very verdict. Because I believe that such a blatant disregard for the rights of a capital defendant offends logic, fairness, and the Constitution, I dissent. </s> I </s> Respondent is not the first to argue that "death qualification" poses a substantial threat to the ability of a capital defendant to receive a fair trial on the issue of his guilt or innocence. In 1961, one scholar observed that "Jurors hesitant to levy the death penalty would . . . seem more prone to resolve the many doubts as to guilt or innocence in the defendant's favor than would jurors qualified on the `pound of flesh' approach." Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?, 39 Texas L. Rev. 545, 549 (1961). </s> When he claimed that the exclusion of scrupled jurors from his venire had violated his constitutional right to an impartial [476 U.S. 162, 186] jury, the petitioner in Witherspoon v. Illinois, supra, sought to provide empirical evidence to corroborate Oberer's intuition. See Brief for Petitioner in Witherspoon v. Illinois, O. T. 1967, No. 1015, pp. 28-33. The data on this issue, however, consisted of only three studies and one preliminary summary of a study. 1 Although the data certainly supported the validity of Witherspoon's challenge to his conviction, these studies did not provide the Court with the firmest basis for constitutional adjudication. As a result, while it reversed Witherspoon's death sentence, the Court was unable to conclude that "the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction," 391 U.S., at 518 , and declined to reverse Witherspoon's conviction. Nonetheless, the Court was careful to note: </s> "[A] defendant convicted by [a properly death-qualified] jury in some future case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence - given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. That problem is not presented here, however, and we intimate no view as to its proper resolution." Id., at 520, n. 18. [476 U.S. 162, 187] </s> In the wake of Witherspoon, a number of researchers set out to supplement the data that the Court had found inadequate in that case. The results of these studies were exhaustively analyzed by the District Court in this case, see Grigsby v. Mabry, 569 F. Supp. 1273, 1291-1308 (ED Ark. 1983) (Grigsby II), and can be only briefly summarized here. 2 The data strongly suggest that death qualification excludes a significantly large subset - at least 11% to 17% - of potential jurors who could be impartial during the guilt phase of trial. 3 Among the members of this excludable class are a disproportionate number of blacks and women. See id., at 1283, 1293-1294. [476 U.S. 162, 188] </s> The perspectives on the criminal justice system of jurors who survive death qualification are systematically different from those of the excluded jurors. Death-qualified jurors are, for example, more likely to believe that a defendant's failure to testify is indicative of his guilt, more hostile to the insanity defense, more mistrustful of defense attorneys, and less concerned about the danger of erroneous convictions. Id., at 1283, 1293, 1304. This proprosecution bias is reflected in the greater readiness of death-qualified jurors to convict or to convict on more serious charges. Id., at 1294-1302; Grigsby v. Mabry, 758 F.2d 226, 233-236 (CA8 1985). And, finally, the very process of death qualification - which focuses attention on the death penalty before the trial has even begun - has been found to predispose the jurors that survive it to believe that the defendant is guilty. 569 F. Supp., at 1302-1305; 758 F.2d, at 234. </s> The evidence thus confirms, and is itself corroborated by, the more intuitive judgments of scholars and of so many of the participants in capital trials - judges, defense attorneys, and prosecutors. See 569 F. Supp., at 1322. 4 </s> [476 U.S. 162, 189] </s> II </s> A </s> Respondent's case would of course be even stronger were he able to produce data showing the prejudical effects of death qualification upon actual trials. Yet, until a State permits two separate juries to deliberate on the same capital case and return simultaneous verdicts, defendants claiming prejudice from death qualification should not be denied recourse to the only available means of proving their case, recreations of the voir dire and trial processes. See Grigsby v. Mabry, supra, at 237 ("[I]t is the courts who have often stood in the way of surveys involving real jurors and we should not now reject a study because of this deficiency"). </s> The chief strength of respondent's evidence lies in the essential unanimity of the results obtained by researchers using diverse subjects and varied methodologies. Even the Court's haphazard jabs cannot obscure the power of the array. Where studies have identified and corrected apparent flaws in prior investigations, the results of the subsequent work have only corroborated the conclusions drawn in the earlier efforts. Thus, for example, some studies might be faulted for failing to distinguish within the class of Witherspoon-excludables, between nullifiers (whom respondent concedes may be excluded from the guilt phase) and those who could assess guilt impartially. Yet their results are entirely consistent with those obtained after nullifiers had indeed been excluded. See, e. g., Cowan, Thompson, & Ellsworth, The Effects of Death Qualification on Jurors' Pre-disposition to Convict and on the Quality of Deliberation, 8 Law & Hum. Behav. 53 (1984). And despite the failure of certain studies to "allow for group deliberations," ante, at [476 U.S. 162, 190] 171, n. 10, the value of their results is underscored by the discovery that initial verdict preferences, made prior to group deliberations, are a fair predictor of how a juror will vote when faced with opposition in the jury room. See Cowan, Thompson, & Ellsworth, supra, at 68-69; see also R. Hastie, S. Penrod, & N. Pennington, Inside the Jury 66 (1983); H. Kalven & H. Zeisel, The American Jury 488 (1966). </s> The evidence adduced by respondent is quite different from the "tentative and fragmentary" presentation that failed to move this Court in Witherspoon. 391 U.S., at 517 . Moreover, in contrast to Witherspoon, the record in this case shows respondent's case to have been "subjected to the traditional testing mechanisms of the adversary process," Ballew v. Georgia 435 U.S. 223, 246 (1978) (POWELL, J., concurring in judgment). At trial, respondent presented three expert witnesses and one lay witness in his case in chief, and two additional lay witnesses in his rebuttal. Testimony by these witnesses permitted the District Court, and allows this Court, better to understand the methodologies used here and their limitations. Further testing of respondent's empirical case came at the hands of the State's own expert witnesses. Yet even after considering the evidence adduced by the State, the Court of Appeals properly noted: "there are no studies which contradict the studies submitted [by respondent]; in other words, all of the documented studies support the district court's findings." 758 F.2d, at 238. </s> B </s> The true impact of death qualification on the fairness of a trial is likely even more devastating than the studies show. Witherspoon placed limits on the State's ability to strike scrupled jurors for cause, unless they state "unambiguously that [they] would automatically vote against the imposition of capital punishment no matter what the trial might reveal," 391 U.S., at 516 , n. 9. It said nothing, however, about the prosecution's use of peremptory challenges to eliminate jurors [476 U.S. 162, 191] who do not meet that standard and would otherwise survive death qualification. See Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 85, n. 391 (1980). There is no question that peremptories have indeed been used to this end, thereby expanding the class of scrupled jurors excluded as a result of the death-qualifying voir dire challenged here. See, e. g., People v. Velasquez, 26 Cal. 3d 425, 438, n. 9, 606 P.2d 341, 348, n. 9 (1980) (prosecutor informed court during voir dire that if a venireperson expressing scruples about the death penalty "were not a challenge for cause, I would kick her off on a peremptory challenge"). The only study of this practice has concluded: "For the five-year period studied a prima facie case has been demonstrated that prosecutors in Florida's Fourth Judicial Circuit systematically used their peremptory challenges to eliminate from capital juries venirepersons expressing opposition to the death penalty." Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1, 39 (1982). 5 </s> Judicial applications of the Witherspoon standard have also expanded the class of jurors excludable for cause. While the studies produced by respondent generally classified a subject as a Witherspoon-excludable only upon his unambiguous refusal to vote death under any circumstance, the courts have never been so fastidious. Trial and appellate courts have frequently excluded jurors even in the absence of unambiguous expressions of their absolute opposition to capital punishment. Schnapper, Taking Witherspoon Seriously: The Search for Death-Qualified Jurors, 62 Texas L. Rev. 977, [476 U.S. 162, 192] 993-1032 (1984). And this less demanding approach will surely become more common in the wake of this Court's decision in Wainwright v. Witt, 469 U.S. 412 (1985). Under Witt, a juror who does not make his attitude toward capital punishment "unmistakably clear," Witherspoon, 391 U.S., at 522 , n. 21, may nonetheless be excluded for cause if the trial court is left with the impression that his attitude will "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Witt, supra, at 433 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). It thus "seems likely that Witt will lead to more conviction-prone panels" since "`scrupled' jurors - those who generally oppose the death penalty but do not express an unequivocal refusal to impose it - usually share the pro-defendant perspective of excludable jurors." See Finch & Ferraro, The Empirical Challenge to Death Qualified Juries: On Further Examination, 65 Neb. L. Rev. 21, 63 (1986). </s> C </s> Faced with the near unanimity of authority supporting respondent's claim that death qualification gives the prosecution a particular advantage in the guilt phase of capital trials, the majority here makes but a weak effort to contest that proposition. Instead, it merely assumes for the purposes of this opinion "that `death qualification' in fact produces juries somewhat more `conviction-prone' than `non-death-qualified' juries," ante, at 173, and then holds that this result does not offend the Constitution. This disregard for the clear import of the evidence tragically misconstrues the settled constitutional principles that guarantee a defendant the right to a fair trial and an impartial jury whose composition is not biased toward the prosecution. </s> III </s> In Witherspoon the Court observed that a defendant convicted by a jury from which those unalterably opposed to the death penalty had been excluded "might still attempt to establish [476 U.S. 162, 193] that the jury was less than neutral with respect to guilt." 391 U.S., at 520 , n. 18. Respondent has done just that. And I believe he has succeeded in proving that his trial by a jury so constituted violated his right to an impartial jury, guaranteed by both the Sixth Amendment and principles of due process, see Ristaino v. Ross, 424 U.S. 589, 595 , n. 6 (1976). We therefore need not rely on respondent's alternative argument that death qualification deprived him of a jury representing a fair cross section of the community. 6 </s> A </s> Respondent does not claim that any individual on the jury that convicted him fell short of the constitutional standard for impartiality. Rather, he contends that, by systematically excluding a class of potential jurors less prone than the population at large to vote for conviction, the State gave itself an unconstitutional advantage at his trial. Thus, according to respondent, even though a nonbiased selection procedure might have left him with a jury composed of the very same [476 U.S. 162, 194] individuals that actually sat on his panel, the process by which those 12 individuals were chosen violated the Constitution. </s> I am puzzled by the difficulty that the majority has in understanding the "logic of the argument." Ante, at 178. For the logic is precisely that which carried the day in Witherspoon, and which has never been repudiated by this Court - not even today, if the majority is to be taken at its word. There was no question in Witherspoon that if the defendant's jury had been chosen by the "luck of the draw," the same 12 jurors who actually sat on his case might have been selected. Nonetheless, because the State had removed from the pool of possible jurors all those expressing general opposition to the death penalty, the Court overturned the defendant's conviction, declaring "that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death." 391 U.S., at 521 . Witherspoon had been denied a fair sentencing determination, the Court reasoned, not because any member of his jury lacked the requisite constitutional impartiality, but because the manner in which that jury had been selected "stacked the deck" against him. Id., at 523. Here, respondent adopts the approach of the Witherspoon Court and argues simply that the State entrusted the determination of his guilt and the level of his culpability to a tribunal organized to convict. </s> The Court offers but two arguments to rebut respondent's constitutional claim. First, it asserts that the "State's reasons for adhering to its preference for a single jury to decide both the guilt and penalty phases of a capital trial are sufficient to negate the inference which the Court drew in Witherspoon concerning the lack of any neutral justification for the Illinois rule on jury challenges." Ante, at 182. This argument, however, does not address the question whether death qualification infringes a defendant's constitutional interest in "a completely fair determination of guilt or innocence," [476 U.S. 162, 195] Witherspoon, 391 U.S., at 520 , n. 18. It merely indicates the state interest that must be considered once an infringement of that constitutional interest is found. </s> The Court's second reason for rejecting respondent's challenge to the process that produced his jury is that the notion of "neutrality" adumbrated in Witherspoon must be confined to "the special context of capital sentencing, where the range of jury discretion necessarily gave rise to far greater concern over the possible effects of an `imbalanced' jury." Ante, at 182. But in the wake of this Court's decision in Adams v. Texas, 448 U.S. 38 (1980), this distinction is simply untenable. </s> B </s> In Adams, this Court applied the principles of Witherspoon to the Texas death-penalty scheme. Under that scheme, if a defendant is convicted of a capital offense, a separate sentencing proceeding is held at which additional aggravating or mitigating evidence is admissible. The jury then must answer three questions based on evidence adduced during either phase of the trial: </s> "(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; </s> "(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and </s> "(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon Supp. 1986). </s> See Adams, supra, at 40-41. If the jury finds beyond a reasonable doubt that the answer to each of these questions is "yes," the court must impose a death sentence; a single "no" [476 U.S. 162, 196] answer requires the court to impose a sentence of life imprisonment. With the role of the jury so defined, Adams held that Texas could not constitutionally exclude every prospective juror unable to state under oath that "the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact." Tex. Penal Code Ann. 12.31(b) (1974); see Adams, supra, at 42. The "process" of answering the statutory questions, the Court observed, "is not an exact science, and the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths." 448 U.S., at 46 . Consequently, while Texas could constitutionally exclude jurors whose scruples against the death penalty left them unable "to answer the statutory questions without conscious distortion or bias," ibid., it could not exclude those </s> "[who] aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law." Id., at 50. </s> The message of Adams is thus that even where the role of the jury at the penalty stage of a capital trial is limited to what is essentially a factfinding role, the right to an impartial jury established in Witherspoon bars the State from skewing the composition of its capital juries by excluding scrupled jurors who are nonetheless able to find those facts without distortion or bias. This proposition cannot be limited to the penalty stage of a capital trial, for the services that Adams' [476 U.S. 162, 197] jury was called upon to perform at his penalty stage "are nearly indistinguishable" from those required of juries at the culpability phase of capital trials. Gillers, Proving the Prejudice of Death-Qualified Juries after Adams v. Texas, 47 U. Pitt. L. Rev. 219, 247 (1985). Indeed, JUSTICE REHNQUIST noted in Adams that he could "see no plausible distinction between the role of the jury in the guilt/innocence phase of the trial and its role, as defined by the State of Texas, in the sentencing phase." 448 U.S., at 54 (dissenting). Contrary to the majority's suggestion, ante at 183, this point was at no time repudiated by the Adams Court. And the absence of a reply to JUSTICE REHNQUIST was not an oversight. At the penalty stage of his trial, Adams' jury may have been called upon to do something more than ascertain the existence vel non of specific historical facts. Yet the role assigned a jury at a trial's culpability phase is little different, for there the critical task of the jury will frequently be to determine not whether defendant actually inflicted the fatal wound, but rather whether his level of culpability at the time of the murder makes conviction on capital murder charges, as opposed to a lesser count, more appropriate. Representing the conscience of the community, the jurors at both stages "unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths." 448 U.S., at 46 . </s> Adams thus provides clear precedent for applying the analysis of Witherspoon to the guilt phase of a criminal trial. Indeed, respondent's case is even stronger than Witherspoon's. The Court in Witherspoon merely presumed that the exclusion of scrupled jurors would unacceptably increase the likelihood that the defendant would be condemned to death. Respondent here has gone much further and laid a solid empirical basis to support his claim that the juries produced by death qualification are substantially more likely to convict. [476 U.S. 162, 198] </s> IV </s> A </s> One need not rely on the analysis and assumptions of Adams and Witherspoon to demonstrate that the exclusion of opponents of capital punishment capable of impartially determining culpability infringes a capital defendant's constitutional right to a fair and impartial jury. For the same conclusion is compelled by the analysis that in Ballew v. Georgia, 435 U.S. 223 (1978), led a majority of this Court 7 to hold that a criminal conviction rendered by a five-person jury violates the Sixth and Fourteenth Amendments. </s> Faced with an effort by Georgia to reduce the size of the jury in a criminal case beyond the six-member jury approved by this Court in Williams v. Florida, 399 U.S. 78 (1970), this Court articulated several facets of the inquiry whether the reduction impermissibly "inhibit[ed] the functioning of the jury as an institution to a significant degree." Ballew, supra, at 231. First, the Court noted that "recent empirical data" had suggested that a five-member jury was "less likely to foster effective group deliberation" and that such a decline in effectiveness would likely lead "to inaccurate factfinding and incorrect application of the common sense of the community to the facts." Id., at 232. The Court advanced several explanations for this phenomenon: </s> "As juries decrease in size . . ., they are less likely to have members who remember each of the important pieces of evidence or argument. Furthermore, the smaller the group, the less likely it is to overcome the biases of its members to obtain an accurate result. When individual and group decisionmaking were compared, [476 U.S. 162, 199] it was seen that groups performed better because prejudices of individuals were frequently counterbalanced, and objectivity resulted." Id., at 233 (footnotes omitted). </s> The Court also cited empirical evidence suggesting "that the verdicts of jury deliberation in criminal cases will vary as juries become smaller, and that the variance amounts to an imbalance to the detriment of one side, the defense." Id., at 236. Lastly, the Court observed that further reductions in jury size would also foretell problems "for the representation of minority groups in the community." Ibid. </s> B </s> Each of the concerns that led this Court in Ballew to find that a misdemeanor defendant had been deprived of his constitutional right to a fair trial by jury is implicated by the process of death qualification, which threatens a defendant's interests to an even greater extent in cases where the stakes are substantially higher. When compared to the juries that sit in all other criminal trials, the death-qualified juries of capital cases are likely to be deficient in the quality of their deliberations, the accuracy of their results, the degree to which they are prone to favor the prosecution, and the extent to which they adequately represent minority groups in the community. </s> The data considered here, as well as plain common sense, leave little doubt that death qualification upsets the "counterbalancing of various biases" among jurors that Ballew identified as being so critical to the effective functioning of juries. Id., at 234. The evidence demonstrates that "a person's attitude toward capital punishment is an important indicator of a whole cluster of attitudes about crime control and due process." Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31, 46 (1984). Members of the excluded group have been shown to be significantly more concerned with the constitutional [476 U.S. 162, 200] rights of criminal defendants and more likely to doubt the strength of the prosecution's case. No doubt because diversity promotes controversy, which in turn leads to a closer scrutiny of the evidence, one study found that "the members of mixed juries [composed of Witherspoon-excludables as well as death-qualified jurors] remember the evidence better than the members of death-qualified juries." Cowan, Thompson, & Ellsworth, 8 Law & Hum. Behav., at 76. This study found that not only is the recall of evidence by a death-qualified jury likely to be below the standard of ordinary juries, but its testing of that evidence will be less rigorous. Id., at 75. It thus appears that in the most serious criminal cases - those in which the State has expressed an intention to seek the death penalty - the ability of the jury to find historical truth may well be impaired. </s> The role of a jury in criminal cases, however, is not limited to the determination of historical facts. The task of ascertaining the level of a defendant's culpability requires a jury to decide not only whether the accused committed the acts alleged in the indictment, but also the extent to which he is morally blameworthy. Thus, especially in capital cases, where a defendant invariably will be charged with lesser included offenses having factual predicates similar to those of the capital murder charges, see Beck v. Alabama 447 U.S. 625 (1980), it may be difficult to classify a particular verdict as "accurate" or "inaccurate." However, the Ballew Court went beyond a concern for simple historical accuracy and questioned any jury procedure that systematically operated to the "detriment of . . . the defense." 435 U.S., at 236 . </s> With even more clarity than the data considered in Ballew, the studies adduced by respondent show a broad pattern of "biased decisionmaking," Ballew, supra, at 239. It is not merely that the jurors who survive death qualification are more likely to accept the word of the prosecution and be satisfied with a lower standard of proof than those who are excluded. The death-qualified jurors are actually more likely [476 U.S. 162, 201] to convict than their peers. Whether the verdict against a particular capital defendant will actually be different depends on the strength of the evidence against him, the likelihood that, absent death qualification, one or more Witherspoon-excludables would have sat on his jury, and a host of other factors. See Gillers, 47 U. Pitt. L. Rev., at 232-238. However, Ballew points to the importance of considering the effects of a particular jury procedure over a range of cases, and not focusing on the fairness of any single trial. Because it takes only one juror unwilling to find that the prosecution has met its burden for a trial to end in either a mistrial or a compromise verdict, "it can be confidently asserted that, over time, some persons accused of capital crimes will be convicted of offenses - and to a higher degree - who would not be so convicted" had all persons able to assess their guilt impartially been permitted to sit on their juries. Hovey v. Superior Court, 28 Cal. 3d 1, 25, n. 57, 616 P.2d 1301, 1314, n. 57 (1980). </s> Death qualification also implicates the Ballew Court's concern for adequate representation of minority groups. Because opposition to capital punishment is significantly more prevalent among blacks than among whites, the evidence suggests that death qualification will disproportionately affect the representation of blacks on capital juries. Though perhaps this effect may not be sufficient to constitute a violation of the Sixth Amendment's fair-cross-section principle, see Duren v. Missouri, 439 U.S. 357, 363 -364 (1979), it is similar in magnitude to the reduction in minority representation that the Ballew Court found to be of "constitutional significance" to a defendant's right to a fair jury trial, 435 U.S., at 239 . See White, Death-Qualified Juries: The "Prosecution Proneness" Argument Reexamined, 41 U. Pitt. L. Rev. 353, 387-389 (1980). </s> The principle of "impartiality" invoked in Witherspoon is thus not the only basis for assessing whether the exclusion of jurors unwilling to consider the death penalty but able impartially [476 U.S. 162, 202] to determine guilt infringes a capital defendant's constitutional interest in a fair trial. By identifying the critical concerns that are subsumed in that interest, the Ballew Court pointed to an alternative approach to the issue, drawing on the very sort of empirical data that respondent has presented here. And viewed in light of the concerns articulated in Ballew, the evidence is sufficient to establish that death qualification constitutes a substantial threat to a defendant's Sixth and Fourteenth Amendment right to a fair jury trial - a threat constitutionally acceptable only if justified by a sufficient state interest. </s> C </s> Respondent's challenge to the impartiality of death-qualified juries focuses upon the imbalance created when jurors particularly likely to look askance at the prosecution's case are systematically excluded from panels. He therefore appears to limit his constitutional claim to only those cases in which jurors have actually been struck for cause because of their opposition to the death penalty. Tr. of Oral Arg. 26. However, this limitation should not blind the Court to prejudice that occurs even in cases in which no juror has in fact been excluded for refusing to consider the death penalty. </s> There is considerable evidence that the very process of determining whether any potential jurors are excludable for cause under Witherspoon predisposes jurors to convict. One study found that exposure to the voir dire needed for death qualification "increased subjects' belief in the guilt of the defendant and their estimate that he would be convicted." Haney, On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Hum. Behav. 121, 128 (1984). See Hovey, supra, at 73, 616 P.2d, at 1349. Even if this prejudice to the accused does not constitute an independent due process violation, it surely should be taken into account in any inquiry into the effects of death qualification. "[T]he process effect may function additively [476 U.S. 162, 203] to worsen the perspective of an already conviction-prone jury whose composition has been distorted by the outcome of this selection process . . . ." Haney, Examining Death Qualification: Further Analysis of the Process Effect, 8 Law & Hum. Behav. 133, 151 (1984). </s> The majority contends that any prejudice attributed to the process of death-qualifying jurors is justified by the State's interest in identifying and excluding nullifiers before the guilt stage of trial. Ante, at 170, n. 7. It overlooks, however, the ease with which nullifiers could be identified before trial without any extended focus on how jurors would conduct themselves at a capital sentencing proceeding. Potential jurors could be asked, for example, "if there be any reason why any of them could not fairly and impartially try the issue of defendant's guilt in accordance with the evidence presented at the trial and the court's instructions as to the law." Grigsby II, 569 F. Supp., at 1310. 8 The prejudice attributable to the current pretrial focus on the death penalty should therefore be considered here and provides but another reason for concluding that death qualification infringes a capital defendant's "interest in a completely fair determination of guilt or innocence." Witherspoon, 391 U.S., at 520 , n. 18. </s> V </s> As the Witherspoon Court recognized, "the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment" may be accommodated without infringing a capital defendant's interest in a fair determination of his guilt if the State uses "one jury to decide guilt and another to [476 U.S. 162, 204] fix punishment." Ibid. Any exclusion of death-penalty opponents, the Court reasoned, could await the penalty phase of a trial. The question here is thus whether the State has other interests that require the use of a single jury and demand the subordination of a capital defendant's Sixth and Fourteenth Amendment rights. </s> The only two reasons that the Court invokes to justify the State's use of a single jury are efficient trial management and concern that a defendant at his sentencing proceedings may be able to profit from "residual doubts" troubling jurors who have sat through the guilt phase of his trial. The first of these purported justifications is merely unconvincing. The second is offensive. </s> In Ballew, the Court found that the State's interest in saving "court time and . . . financial costs" was insufficient to justify further reductions in jury size. 435 U.S., at 243 -244. The same is true here. The additional costs that would be imposed by a system of separate juries are not particularly high. </s> "First, capital cases constitute a relatively small number of criminal trials. Moreover, the number of these cases in which a penalty determination will be necessary is even smaller. A penalty determination will occur only where a verdict on guilt has been returned that authorizes the possible imposition of capital punishment, and only where the prosecutor decides that a death sentence should be sought. Even in cases in which a penalty determination will occur, the impaneling of a new penalty jury may not always be necessary. In some cases, it may be possible to have alternate jurors replace any `automatic life imprisonment' jurors who served at the guilt determination trial." Winick, 81 Mich. L. Rev., at 57. </s> In a system using separate juries for guilt and penalty phases, time and resources would be saved every time a capital case did not require a penalty phase. The voir dire [476 U.S. 162, 205] needed to identify nullifiers before the guilt phase is less extensive than the questioning that under the current scheme is conducted before every capital trial. The State could, of course, choose to empanel a death-qualified jury at the start of every trial, to be used only if a penalty stage is required. However, if it opted for the cheaper alternative of empaneling a death-qualified jury only in the event that a defendant were convicted of capital charges, the State frequently would be able to avoid retrying the entire guilt phase for the benefit of the penalty jury. Stipulated summaries of prior evidence might, for example, save considerable time. Thus, it cannot fairly be said that the costs of accommodating a defendant's constitutional rights under these circumstances are prohibitive, or even significant. </s> Even less convincing is the Court's concern that a defendant be able to appeal at sentencing to the "residual doubts" of the jurors who found him guilty. Any suggestion that the current system of death qualification "may be in the defendant's best interests, seems specious unless the state is willing to grant the defendant the option to waive this paternalistic protection in exchange for better odds against conviction." Finch & Ferraro, 65 Neb. L. Rev., at 69. Furthermore, this case will stand as one of the few times in which any legitimacy has been given to the power of a convicted capital defendant facing the possibility of a death sentence to argue as a mitigating factor the chance that he might be innocent. Where a defendant's sentence but not his conviction has been set aside on appeal, States have routinely empaneled juries whose only duty is to assess punishment, thereby depriving defendants of the chance to profit from the "residual doubts" that jurors who had already sat through a guilt phase might bring to the sentencing proceeding. In its statute authorizing resentencing without any reassessment of culpability, Arkansas has noted: "it is a waste of judicial resources to require the retrying of an error-free trial if the State wishes to seek to reimpose the death penalty." 1983 Ark. Gen. Act. [476 U.S. 162, 206] No. 546, 3, note following Ark. Rev. Stat. Ann. 41-1358 (Supp. 1985). </s> But most importantly, it ill-behooves the majority to allude to a defendant's power to appeal to "residual doubts" at his sentencing when this Court has consistently refused to grant certiorari in state cases holding that these doubts cannot properly be considered during capital sentencing proceedings. See Burr v. Florida, 474 U.S. 879 (1985) (MARSHALL, J., dissenting from denial of certiorari); Heiney v. Florida, 469 U.S. 920 (1984) (MARSHALL, J., dissenting from denial of certiorari); Burford v. State, 403 So.2d 943 (Fla. 1981), cert. denied, 454 U.S. 1164 (1982). Any suggestion that capital defendants will benefit from a single jury thus is more than disingenuous. It is cruel. </s> VI </s> On occasion, this Court has declared what I believe should be obvious - that when a State seeks to convict a defendant of the most serious and severely punished offenses in its criminal code, any procedure that "diminish[es] the reliability of the guilt determination" must be struck down. Beck v. Alabama, 447 U.S., at 638 . But in spite of such declarations, I cannot help thinking that respondent here would have stood a far better chance of prevailing on his constitutional claims had he not been challenging a procedure peculiar to the administration of the death penalty. For in no other context would a majority of this Court refuse to find any constitutional violation in a state practice that systematically operates to render juries more likely to convict, and to convict on the more serious charges. I dissent. </s> [Footnote 1 The Witherspoon Court had before it only a preliminary summary of the results of H. Zeisel, Some Data on Juror Attitudes Towards Capital Punishment (University of Chicago Monograph 1968), "not the data nor the analysis that underlay his conclusions, nor indeed his final conclusions themselves." Hovey v. Superior Court, 28 Cal. 3d 1, 30, n. 63, 616 P.2d 1301, 1317, n. 63 (1980). </s> [Footnote 2 Most of the studies presented here were also comprehensively summarized in Hovey v. Superior Court, supra. Because the California Supreme Court found the studies had not accounted for jurors who could be excluded because they would automatically vote for the death penalty where possible, that court ultimately rejected a defendant's constitutional challenge to death qualification. But see Kadane, After Hovey: A Note on Taking Account of the Automatic Death Penalty Jurors, 8 Law & Hum. Behav. 115 (1984). </s> [Footnote 3 Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 12 U. Colo. L. Rev. 1 (1970) (using classification only approximating Witherspoon standard, and finding 11% of subjects Witherspoon-excludable); Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson L. J. 11 (1980) (using more appropriate Witherspoon question and finding 93% overlap of "strongly opposed" group in prior Bronson study with Witherspoon-excludables); Jurow, New Data on the Effect of a "Death Qualified Jury" on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971) (finding only 10% of sample excludable, but likely to have underestimated size of class in general population because sample 99% white and 80% male); Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31 (1984) (random sample with nullifiers screened out finding 17% still excludable under Witherspoon); A. Young, Arkansas Archival Study (unpublished, 1981) (14% of jurors questioned in voir dire transcripts excludable); Precision Research, Inc., Survey No. 1286 (1981) (11% excludable, not counting nullifiers); see 569 F. Supp., at 1285; Grigsby v. Mabry, 758 F.2d 226, 231 (CA8 1985). </s> [Footnote 4 The Court reasons that because the State did not "waive" the death penalty in respondent's case, we "need not consider the implications" of respondent's assertion that "the State often will request the death penalty in particular cases solely for the purpose of `death qualifying' the jury, with the intent ultimately to `waive' the death penalty after a conviction is obtained." Ante, at 176, n. 16. If, by this, the Court intended to limit the effects of its decision to the case pending before us, I would gladly join that effort. However, I see all too few indications in the Court's opinion that future constitutional challenges to death-qualified juries stand much chance of success here. In view of the sweep of the Court's opinion and the fact that, in any particular case, a defendant will never be able to demonstrate with any certainty that the prosecution's decision to seek the death penalty was merely a tactical ruse, I find the Court's refusal to consider the potential for this abuse rather disingenuous. See Grigsby v. Mabry, 483 F. Supp. 1372, 1389, n. 24 (ED Ark. 1980) (Grigsby I) (suggesting possibility that prosecutor had initially sought death penalty merely to get more conviction-prone, death-qualified jury). Cf. Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of [476 U.S. 162, 189] Fair Trial on Issue of Guilt?, 39 Texas L. Rev. 545, 555, n. 45b (1961) (reporting testimony of one prosecutor that there might be other prosecutors who death-qualified a jury "without hope of obtaining a death verdict but in the expectation that a jury so selected would impose a higher penalty than might otherwise be obtained"). </s> [Footnote 5 At this point, the remedy called for is not the wholesale removal of the prosecution's power to make peremptory challenges, but merely the elimination of death qualification. But cf. Batson v. Kentucky, ante, p. 102 (MARSHALL, J., concurring). Without the extensive voir dire now allowed for death qualification, the prosecution would lack sufficient information to be able to expand the scope of Witherspoon through the use of peremptories. See n. 8, infra. </s> [Footnote 6 With respect to the Court's discussion of respondent's fair-cross-section claim, however, I must note that there is no basis in either precedent or logic for the suggestion that a state law authorizing the prosecution before trial to exclude from jury service all, or even a substantial portion of, the members of a "distinctive group" would not constitute a clear infringement of a defendant's Sixth Amendment right. "The desired interaction of a cross section of the community does not take place within the venire; it is only effectuated by the jury that is selected and sworn to try the issues." McCray v. New York, 461 U.S. 961, 968 (1983) (MARSHALL, J., dissenting from denial of certiorari); see McCray v. Abrams, 750 F.2d 1113, 1128-1129 (CA2 1984), cert. pending, No. 84-1426. The right to have a particular group represented on venires is of absolutely no value if every member of that group will automatically be excluded from service as soon as he is found to be a member of that group. Whether a violation of the fair-cross-section requirement has occurred can hardly turn on when the wholesale exclusion of a group takes place. If, for example, blacks were systematically struck from petit juries pursuant to state law, the effect - and the infringement of a defendant's Sixth Amendment rights - would be the same as if they had never been included on venires in the first place. </s> [Footnote 7 Although the opinion of JUSTICE BLACKMUN in Ballew was cosigned by only JUSTICE STEVENS, three other Justices specifically joined that opinion "insofar as it holds that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons." 435 U.S., at 246 (opinion of BRENNAN, J., joined by Stewart and MARSHALL, JJ.). </s> [Footnote 8 Restriction of voir dire to this inquiry would limit the ability of the prosecution to use its peremptory challenges to strike those jurors who would have been excluded for cause under the current system of death qualification. And the power of this inquiry to root out all prejudices and biases, no matter how great a threat they pose to the fairness of a guilt determination, has only recently been established by this Court as a matter of law. See Turner v. Murray, ante, p. 28. But see ante, at 45 (MARSHALL, J., concurring in judgment in part and dissenting in part). </s> [476 U.S. 162, 207]

United States Supreme Court LE MAISTRE V. LEFFERS(1948) No. 362 Argued: January 7, 1948Decided: February 2, 1948 </s> [ Le Maistre v. Leffers 333 U.S. 1 (1948) ] </s> [333 U.S. 1 , 2] </s> Messrs. W. B. Shelby Crichlow and Dewey A. Dye, both of Bradenton, Fla., for petitioner. Mr. James Alfred Franklin, of Fort Myers, Fla., for respondents. </s> Mr. Justice DOUGLAS delivered the opinion of the Court. Section 205 of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, as amended, 56 Stat. 769, 770, 50 U.S.C.App. Supp. V 525, 50 U.S.C.A.Appendix, 525, provides in part that no portion of the period of military service1 which occurs after October 6, 1942,2 shall be included 'in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax, or assessment.' Petitioner owned land in Florida on which taxes became delinquent April 1, 1940. Under Florida statutory procedure3 the tax collector after notice sells the land at public sale and issues a tax certificate to the purchaser. At any time after two years from the date of the certificate the holder thereof may apply for a tax deed. Notice is given, a public sale is had, and a tax deed is issued. The owner may redeem the land at any time after issuance of the certificate and before issuance of the tax deed. </s> [333 U.S. 1 , 3] </s> In accordance with this procedure a tax certificate on petitioner's lands was issued August 5, 1940. Petitioner was on active duty in the Navy from August 18, 1942, until his discharge on December 18, 1945. Application for a tax deed was made by one Conrod in January, 1943, and the deed issued to him on March 1, 1943. It is through him that respondents claim by mesne conveyances. Petitioner filed this suit in equity on March 25, 1946, seeking to set aside the tax deed by reason of 205 of the Soldiers' and Sailors' Civil Relief Act. The Florida Supreme Court affirmed a judgment denying the relief, Fla., 31 So.2d 155, on the authority of its earlier decision in De Loach v. Calihan, Fla., 30 So.2d 910. The case is here on a petition for a writ of certiorari which we granted because the construction given to the federal Act seemed to us not only a dubious one but also at variance with Illinois Nat. Bank of Springfield v. Gwinn, 390 Ill. 345, 61 N.E.2d 249, 159 A.L.R. 468. Under Florida law petitioner concededly could have redeemed any time between August 5, 1940, when the certificate was issued, and March 1, 1943, when the tax deed was issued. The provision of the federal Act with which we are here concerned became effc tive during that period-October 6, 1942. At that time petitioner was in the Navy and at once became a beneficiary of it. That means that the running of the time granted him under Florida law to redeem was tolled as long as he was in the military service. Since he would have had from October 6, 1942, to March 1, 1943, to redeem, the effect of the Act was to give him the same length of time after his discharge for that purpose. His present action being timely, there is thus no barrier to his recovery so far as the Act is concerned. Two reasons, however, are advanced against it. First, it is argued that 205 applies only where state law provides for transfer of title to the purchaser subject to de- </s> [333 U.S. 1 , 4] </s> feasance by redemption. The Florida procedure is said to be not covered by 205 since title passes only on issuance of the deed, which ends the period of redemption. We do not think 205 deserves such a technical reading. The provision in question was added in 1942 to remedy what this Court had held to be a casus omissus in a preceding Act. 4 Ebert v. Poston, 266 U.S. 548, 554 , 190. Its language does no compel the narrow reading that is suggested; and the spirit of the amendment repels any such restriction. It covers 'any period * * * provided by any law for the redemption of real property sold or forfeited,' etc. We see neither in that language nor in the legislative history of the provision any purpose to restrict its application to cases where redemption follows passage of title. The second reason urged against petitioner is the one adopted by the Supreme Court of Florida in De Loach v. Calihan, supra. It held that 205 is limited by 500, 50 U.S.C.A.Appendix, 525, 560. The latter section gives added protection to a person in military service by providing that no sale for taxes or assessments shall be made except upon leave of court 'in respect of * * * real property owned and occupied for dwelling, professional, business, or agricultural purposes,' and by granting a given period for redemption. 5 The </s> [333 U.S. 1 , 5] </s> Supreme Court of Florida held that 500 describes the class of real property on which a soldier or sailor is granted indulgence, while 205 indicates the period of the indulgence. Under that view petitioner would fail because the property in question does not appear to be land 'owned and occupied for dwelling, professional, business, or agricultural purposes.' We do not, however, read the Act so restrictively. The two sections- 205 and 500-supplement each other. Section 500, applicable to restricted types of real property, gives greater protection than 205. It restrains the sale for taxes or assessments of specified types of real property except upon leave of court and prescribes for them a specified time within which the right to redeem may be exercised if the property is sold. Section 205 </s> [333 U.S. 1 , 6] </s> extends in terms to all land and only tolls the time for redemption for the period of military service. The other construction attributes to Congress a purpose to protect only certain classes of real property owned by those in the armed services. We cannot do that without drastically contracting the language of 205 and closing our eyes to its beneficent purpose. But as we indicated on another occasion, the Act must be read with an eye friendly to those who dropped their affairs to answer their country's call. Boone v. Lightner, 319 U.S. 561, 575 , 1231. Reversed. Footnotes </s> [Footnote 1 The term is defined in 101(2) of the Act, 50 U.S.C.A.Appendix, 511(2), as follows: 'For persons in active service at the date of the approval of this Act it shall begin with the date of approval of this Act; for persons entering active service after the date of this Act, with the date of entering active service. It shall terminate with the date of discharge from active service or death while in active service, but in no case later than the date when this Act ceases to be in force.' [Footnote 2 That was the effective date of the amendment which added this provision to 205. [Footnote 3 Fla.Stats.1941, cc. 193, 194, F.S.A. </s> [Footnote 4 The purpose was stated as follows: 'The running of the statutory period during which real property may be redeemed after sale to enforce any obligation, tax, or assessment is likewise tolled during the part of such period which occurs after the enactment of the Soldiers' and Sailors' Civil Relief Act Amendments of 1942. Although the tolling of such periods is now within the spirit of the law, it has not been held to be within the letter thereof (I.R. 1269 C.B., June 1922, p. 311; Ebert v. Poston, 266 U.S. 549 ).' Sen.Rep.No.1558, 77th Cong., 2d Sess ., p. 4. [Footnote 5 Section 500 reads in part: '(1) The provisions of this section shall apply when any taxes or assessments, whether general or special (other than taxes on income), whether falling due prior to or during the period of military service, in respect of personal property, money, or credits, or real property owned and occupied for dwelling, professional, business, or agricultural purposes by a person in military service or his dependents at the commencement of his period of military service and still so occupied by his dependents or employees are not paid. '(2) No sale of such property shall be made to enforce the collection of such tax or assessment, or any proceeding or action for such purpose commenced, except upon leave of court granted upon application made therefor by the collector of taxes or other officer whose duty it is to enforce the collection of taxes or assessments. The court thereupon, unless in its opinion the ability of the person in military service to pay such taxes or assessmentsi not materially affected by reason of such service, may stay such proceedings or such sale, as provided in this Act, for a period extending not more than six months after the termination of the period of military service of such person. '(3) When by law such property may be sold or forfeited to enforce the collection of such tax or assessment, such person in military service shall have the right to redeem or commence an action to redeem such property, at any time not later than six months after the termination of such service, but in no case later than six months after the date when this Act ceases to be in force; but this shall not be taken to shorten any period, now or hereafter provided by the laws of any State or Territory for such redemption.'

United States Supreme Court ALLIS-CHALMERS CORP. v. LUECK(1985) No. 83-1748 Argued: January 16, 1985Decided: April 16, 1985 </s> The bad-faith handling of an insurance claim, including a claim under a disability insurance plan included in a collective-bargaining agreement, is a tort under Wisconsin law. Petitioner and a labor union, of which respondent employee of petitioner is a member, are parties to a collective-bargaining agreement that incorporates a self-funded disability plan administered by an insurance company and providing benefits for nonoccupational injuries to employees. The agreement establishes a disability grievance procedure that culminates in final and binding arbitration. Respondent, after suffering a nonoccupational injury, entered into a dispute over the manner in which petitioner and the insurer handled his disability claim. Rather than utilizing the grievance procedure, respondent brought a tort suit against petitioner and the insurer in a Wisconsin state court, alleging bad faith in the handling of his claim and seeking damages. The trial court ruled in favor of petitioner and the insurer, holding that respondent had stated a claim under 301 of the Labor Management Relations Act, which provides that suits for violations of collective-bargaining agreements may be brought in federal district court. In the alternative, if the claim were deemed to arise under state law rather than 301, it was pre-empted by federal labor law. The Wisconsin Court of Appeals affirmed. The Wisconsin Supreme Court reversed, holding that the claim did not arise under 301 as constituting a violation of a labor contract but was a tort claim of bad faith. The court reasoned that under Wisconsin law the tort of bad faith is distinguishable from a bad-faith breach-of-contract claim, and that although a breach of duty is imposed as a consequence of the relationship established by contract, it is independent from that contract. </s> Held: </s> When resolution of a state-law claim is substantially dependent upon analysis of the terms of a collective-bargaining agreement, that claim must either be treated as a 301 claim or dismissed as pre-empted by federal labor-contract law. Here, respondent's claim should have been dismissed for failure to make use of the grievance procedure or as pre-empted by 301. The right asserted by respondent is rooted in contract, and the bad-faith claim could have been pleaded as a contract claim under 301. Unless federal law governs that claim, the meaning of the disability-benefit provisions of the collective-bargaining agreement [471 U.S. 202, 203] would be subject to varying interpretations, and the congressional goal of a unified body of labor-contract law would be subverted. Pre-emption is also necessary to preserve the central role of arbitration in the resolution of labor disputes. Pp. 208-221. </s> 116 Wis. 2d 559, 342 N. W. 2d 699, reversed. </s> BLACKMUN, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the case. </s> Theophil C. Kammholz argued the cause for petitioner. With him on the briefs were Richard H. Schnadig and Stanley R. Strauss. </s> Gerald S. Boisits, by appointment of the Court, 469 U.S. 978 , argued the cause for respondent. With him on the brief were Kurt A. Frank and James E. Kenny. * </s> [Footnote * Briefs as amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Andrew M. Kramer, Willis J. Goldsmith, and Stephen A. Bokat; and for the American Federation of Labor and Congress of Industrial Organizations by Laurence Gold. </s> Bronson C. La Follette, Attorney General of Wisconsin, Charles D. Hoornstra, Assistant Attorney General, and Michael A. Lilly, Attorney General of Hawaii, filed a brief for the State of Wisconsin et al. as amici curiae urging affirmance. </s> JUSTICE BLACKMUN delivered the opinion of the Court. </s> The Wisconsin courts have made the bad-faith handling of an insurance claim a tort under state law. Those courts have gone further and have applied this tort to the handling of a claim under a disability plan included in a collective-bargaining agreement. The question before us is whether, in the latter case, the state tort claim is pre-empted by the national labor laws. </s> I </s> A </s> Respondent Roderick S. Lueck began working for petitioner Allis-Chalmers Corporation in February 1975. He is a member of Local 248 of the United Automobile, Aerospace [471 U.S. 202, 204] and Agricultural Implement Workers of America. Allis-Chalmers and Local 248 are parties to a collective-bargaining agreement. The agreement incorporates by reference a separately negotiated group health and disability plan fully funded by Allis-Chalmers but administered by Aetna Life & Casualty Company. The plan provides that disability benefits are available for nonoccupational illness and injury to all employees, such as petitioner, who are represented by the union. </s> The collective-bargaining agreement also establishes a four-step grievance procedure for an employee's contract grievance. This procedure culminates in final and binding arbitration if the union chooses to pursue the grievance that far. App. 18-29. A separate letter of understanding that binds the parties creates a special three-part grievance procedure for disability grievances. Id., at 43-44. The letter establishes a Joint Plant Insurance Committee composed of two representatives designated by the union and two designated by the employer. Id., at 43. The Committee has the authority to resolve all disputes involving "any insurance-related issues that may arise from provisions of the [Collective-Bargaining] Agreement." Ibid. An employee having an insurance-related complaint is to address it first to the Supervisor of Employee Relations. If the complaint is rejected or otherwise remains unresolved, the employee then may bring the dispute before the Insurance Committee. If the Committee does not resolve the matter, the employee may bring it to arbitration in the manner established under the collective-bargaining agreement. As indicated, that agreement permits the union or the employer to request that a grievance be submitted to final and binding arbitration before a neutral arbitrator agreed upon by the parties. 1 </s> [471 U.S. 202, 205] </s> In July 1981, respondent Lueck suffered a nonoccupational back injury while carrying a pig to a friend's house for a pig roast. He notified Allis-Chalmers of his injury, as required by the claims-processing procedure, and subsequently filed a disability claim with Aetna, also in accordance with the established procedure. After evaluating physicians' reports submitted by Lueck, Aetna approved the claim. Lueck began to receive disability benefits effective from July 20, 1981, the day he filed his claim with Aetna. </s> According to Lueck, however, Allis-Chalmers periodically would order Aetna to cut off his payments, either without reason, or because he failed to appear for a doctor's appointment, or because he required hospitalization for unrelated reasons. After each termination, Lueck would question the action or supply additional information, and the benefits would be restored. In addition, according to Lueck, Allis-Chalmers repeatedly requested that he be reexamined by different doctors, so that Lueck believed that he was being harassed. All of Lueck's claims were eventually paid, although, allegedly, not until he began this litigation. 2 </s> [471 U.S. 202, 206] </s> B </s> Lueck never attempted to grieve his dispute concerning the manner in which his disability claim was handled by Allis-Chalmers and Aetna. Instead, on January 18, 1982, he filed suit against both of them in the Circuit Court of Milwaukee County, Wis., alleging that they "intentionally, contemptuously, and repeatedly failed" to make disability payments under the negotiated disability plan, without a reasonable basis for withholding the payments. App. 4. This breached their duty "to act in good faith and deal fairly with [Lueck's] disability claims." Id., at 3. Lueck alleged that as a result of these bad-faith actions he incurred debts, emotional distress, physical impairment, and pain and suffering. He sought both compensatory and punitive damages. Id., at 4. </s> Ruling on cross-motions for summary judgment, the trial court ruled in favor of Allis-Chalmers and Aetna. The court held that Lueck stated a claim under 301 of the Labor Management Relations Act of 1947 (LMRA), 61 Stat. 156, 29 U.S.C. 185(a), and that, in the alternative, if his claim "were deemed to arise under state law instead of Section 301," it was "preempted by federal labor law." App. to Pet. for Cert. 26-27. The Wisconsin Court of Appeals, in a decision "[n]ot recommended for publication in the official reports," id., at 25, affirmed the judgment in favor of Aetna on the ground that it owed no fiduciary duty to deal in good faith with Lueck's claim. The court agreed with the Circuit Court that federal law pre-empted the claim against Allis-Chalmers. 3 </s> [471 U.S. 202, 207] </s> The Supreme Court of Wisconsin, with one justice dissenting, reversed. Lueck v. Aetna Life Ins. Co., 116 Wis. 2d 559, 342 N. W. 2d 699 (1984). The court held, first, that the suit did not arise under 301 of the LMRA, and therefore was not subject to dismissal for failure to exhaust the arbitration procedures established in the collective-bargaining agreement. The court reasoned that a 301 suit arose out of a violation of a labor contract, and that the claim here was a tort claim of bad faith. Under Wisconsin law, the tort of bad faith is distinguishable from a bad-faith breach-of-contract claim: though a breach of duty exists as a consequence of the relationship established by contract, it is independent of that contract. Therefore, it said, the violation of the labor contract was "irrelevant to the issue of whether the defendants exercised bad faith in the manner in which they handled Lueck's claim." Id., at 566, 342 N. W. 2d, at 703. The action, thus, was not a 301 suit. </s> The court went on to address the question whether the state-law claims nevertheless were pre-empted by 8(a)(5) and (d) of the National Labor Relations Act (NLRA), 49 Stat. 452, as amended, 29 U.S.C. 158(a)(5) and (d). Applying the standard for determining NLRA pre-emption as enunciated in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 -245 (1959), and Farmer v. Carpenters, 430 U.S. 290, 296 -297 (1977), the court determined that the claims were not pre-empted. It found that the administration of disability-claim procedures under a collective-bargaining agreement is a matter only of peripheral concern to federal labor law, since payment of a disability claim is not a central aspect of labor relations. On the other hand, the court observed, the bad-faith insurance tort is of substantial significance to the State of Wisconsin, which has assumed a longstanding responsibility for assuring the prompt payment of disability claims. Permitting the state action to proceed would not have an adverse impact on the effective administration [471 U.S. 202, 208] of national labor policy, since the courts will make no determination as to whether the labor agreement has been breached. </s> Finally, the court found that Aetna could be liable to Lueck for bad-faith administration of his disability claim since it was an agent of Allis-Chalmers for the purpose of administering claims. It thus reversed the appellate court's judgment and remanded the case for a determination whether Aetna played any role in the processing of Lueck's disability claim. Aetna has not sought review of that part of the judgment. We granted certiorari, 469 U.S. 815 (1984), to determine whether 301 of the Labor Management Relations Act pre-empts a state-law tort action for bad-faith delay in making disability-benefit payments due under a collective-bargaining agreement. </s> II </s> Congress' power to pre-empt state law is derived from the Supremacy Clause of Art. VI of the Federal Constitution. Gibbons v. Ogden, 9 Wheat. 1 (1824). Congressional power to legislate in the area of labor relations, of course, is long established. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). Congress, however, has never exercised authority to occupy the entire field in the area of labor legislation. 4 Thus the question whether a certain state action is pre-empted by federal law is one of congressional intent. "`The purpose of Congress is the ultimate touchstone.'" Malone v. White Motor Corp., 435 U.S. 497, 504 (1978), quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). </s> Congress did not state explicitly whether and to what extent it intended 301 of the LMRA to pre-empt state law. [471 U.S. 202, 209] In such instances courts sustain a local regulation "unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States." Malone v. White Motor Corp., 435 U.S., at 504 . The question posed here is whether this particular Wisconsin tort, as applied, would frustrate the federal labor-contract scheme established in 301. </s> III </s> A </s> Section 301 of the LMRA states: </s> "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties. . . ." 29 U.S.C. 185(a). </s> In Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957), the Court ruled that 301 expresses a federal policy that the substantive law to apply in 301 cases "is federal law, which the courts must fashion from the policy of our national labor laws." Id., at 456. That seminal case understood 301 as a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of labor contracts. 5 </s> The pre-emptive effect of 301 was first analyzed in Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962), where the Court stated that the "dimensions of 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute [so that] issues raised in suits of a kind covered by 301 [are] to be decided according to the precepts of federal labor policy." The Court concluded that "in enacting 301 Congress intended doctrines [471 U.S. 202, 210] of federal labor law uniformly to prevail over inconsistent local rules." Id., at 104. </s> The Lucas Flour Court specified why the meaning given to terms in collective-bargaining agreements must be determined by federal law: </s> "[T]he subject matter of 301(a) `is peculiarly one that calls for uniform law.' . . . The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation . . . [and] might substantially impede the parties' willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes." Id., at 103-104 (footnote omitted). </s> For those reasons the Court in Lucas Flour held that a suit in state court alleging a violation of a provision of a labor contract must be brought under 301 and be resolved by reference to federal law. A state rule that purports to define the meaning or scope of a term in a contract suit therefore is pre-empted by federal labor law. </s> B </s> If the policies that animate 301 are to be given their proper range, however, the pre-emptive effect of 301 must extend beyond suits alleging contract violations. These policies [471 U.S. 202, 211] require that "the relationships created by [a collective-bargaining] agreement" be defined by application of "an evolving federal common law grounded in national labor policy." Bowen v. United States Postal Service, 459 U.S. 212, 224 -225 (1983). The interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform federal interpretation. Thus, questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of 301 by relabeling their contract claims as claims for tortious breach of contract. </s> Were state law allowed to determine the meaning intended by the parties in adopting a particular contract phrase or term, all the evils addressed in Lucas Flour would recur. The parties would be uncertain as to what they were binding themselves to when they agreed to create a right to collect benefits under certain circumstances. As a result, it would be more difficult to reach agreement, and disputes as to the nature of the agreement would proliferate. Exclusion of such claims "from the ambit of 301 would stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law." Smith v. Evening News Assn., 371 U.S. 195, 200 (1962). </s> Of course, not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by 301 or other provisions of the federal labor law. Section 301 on its face says nothing about the substance of what private parties may agree to in a labor contract. Nor is there any suggestion that Congress, [471 U.S. 202, 212] in adopting 301, wished to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation. 6 Such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored. Clearly, 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law. In extending the pre-emptive effect of 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract. 7 </s> [471 U.S. 202, 213] </s> Therefore, state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by those agreements. Cf. Malone v. White Motor Corp., 435 U.S., at 504 -505 (NLRA pre-emption). 8 Our analysis must focus, then, on whether the Wisconsin tort action for breach of the duty of good faith as applied here confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract. If the state tort law purports to define the meaning of the contract relationship, that law is pre-empted. </s> IV </s> A </s> The Wisconsin Supreme Court asserted that the tort claim is independent of any contract claim. 9 While the nature of [471 U.S. 202, 214] the state tort is a matter of state law, the question whether the Wisconsin tort is sufficiently independent of federal contract interpretation to avoid pre-emption is, of course, a question of federal law. Though the Wisconsin court held that the "specific violation of the labor contract, if there was one, is irrelevant to the issue of whether the defendants exercised bad faith in the manner in which they handled Lueck's claim," 116 Wis. 2d, at 566, 342 N. W. 2d, at 703, upon analysis it appears that the court based this statement not solely on its unassailable understanding of the state tort, but also on assumptions about the scope of the contract provision which it had no authority to make under state law. </s> The Wisconsin court attempted to demonstrate, by a proffered example, the way in which a bad-faith tort claim could be unrelated to any contract claim. It noted that an insurer ultimately could pay a claim as required under a contract, but still cause injury through "unreasonably delaying payment" of the claim. Id., at 574, 342 N. W. 2d, at 707. In such a situation, the court reasoned, the state tort claim would be adjudicated without reaching questions of contract interpretation. Ibid. The court evidently assumed that the only obligations the parties assumed by contract are those expressly recited in the agreement, in this case the right to receive benefit payments for nonoccupational injuries. [471 U.S. 202, 215] Thus, the court reasoned, the good-faith behavior mandated in the labor agreement was independent of the good-faith behavior required by state insurance law because "[g]ood faith in the labor agreement context means [only] that parties must abide by the specific terms of the labor agreement." Id., at 569, 342 N. W. 2d, at 704. </s> If this is all there is to the independence of the state tort action, that independence does not suffice to avoid the pre-emptive effect of 301. The assumption that the labor contract creates no implied rights is not one that state law may make. Rather, it is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments in a timely manner, and, if so, whether Allis-Chalmers' conduct breached that implied contract provision. </s> The Wisconsin court's assumption that the parties contracted only for the payment of insurance benefits, and that questions about the manner in which the payments were made are outside the contract is, moreover, highly suspect. 10 There is no reason to assume that the labor contract as interpreted by the arbitrator would not provide such relief. On its face, the agreement allows the Joint Plant Insurance Committee to resolve disputes involving "any insurance-related issues that may arise" (emphasis added), App. 43, and hardly suggests that only disputes involving the right to receive benefits were addressed in the contract. And if the arbitrator ruled that the labor agreement did not provide [471 U.S. 202, 216] such relief expressly or by implication, that too should end the dispute, for under Wisconsin law there is nothing that suggests that it is not within the power of the parties to determine what would constitute "reasonable" performance of their obligations under an insurance contract. In sum, the Wisconsin court's statement that the tort was independent from a contract claim apparently was intended to mean no more than that the implied duty to act in good faith is different from the explicit contractual duty to pay. Since the extent of either duty ultimately depends upon the terms of the agreement between the parties, both are tightly bound with questions of contract interpretation that must be left to federal law. </s> B </s> The conclusion that the Wisconsin court meant by "independent" that the tort is unrelated to an explicit provision of the contract is buttressed by analysis of the genesis and operation of the state tort. Under Wisconsin law, the tort intrinsically relates to the nature and existence of the contract. Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 13-16, 235 N. W. 413, 414-415 (1931). Thus the tort exists for breach of a "duty devolv[ed] upon the insurer by reasonable implication from the express terms of the contract," the scope of which, crucially, is "ascertained from a consideration of the contract itself." Id., at 16, 235 N. W., at 415. In Hilker, the court specifically noted: </s> "Generally speaking, good faith means being faithful to one's duty or obligation; bad faith means being recreant thereto. In order to understand what is meant by bad faith a comprehension of one's duty is generally necessary, and we have concluded that we can best indicate the circumstances under which the insurer may become liable to the insured . . . by giving with some particularity our conception of the duty which the written contract of insurance imposes upon the carrier." Id., at 13, 235 N. W., at 414. [471 U.S. 202, 217] </s> The duties imposed and rights established through the state tort thus derive from the rights and obligations established by the contract. In Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 689, 271 N. W. 2d 368, 375-376 (1978), which established that in Wisconsin an insured may assert a cause of action in tort against an insurer for the bad-faith refusal to honor the insured's claim, the court stated that the tort duty was derived from the implied covenant of good faith and fair dealing found in every contract. It relied for that proposition on the Restatement (Second) of Contracts 205 (1981), as well as on the adoption of the Restatement's position in Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 575, 510 P.2d 1032, 1038 (1973). The Gruenberg court explicitly stated that the breach sounded in both tort and contract, and there is no indication in Wisconsin law that the tort is anything more than a way to plead a certain kind of contract violation in tort in order to recover exemplary damages not otherwise available under Wisconsin law. Anderson v. Continental Ins. Co., 85 Wis. 2d, at 686-687, 271 N. W. 2d, at 374. 11 Therefore, under Wisconsin law it appears that the parties to an insurance contract are free to bargain about what "reasonable" performance of their contract obligation entails. That being so, this tort claim is firmly rooted in the expectations of the parties that must be evaluated by federal contract law. [471 U.S. 202, 218] </s> Because the right asserted not only derives from the contract, but is defined by the contractual obligation of good faith, any attempt to assess liability here inevitably will involve contract interpretation. The parties' agreement as to the manner in which a benefit claim would be handled will necessarily be relevant to any allegation that the claim was handled in a dilatory manner. Similarly, the question whether Allis-Chalmers required Lueck to be examined by an inordinate number of physicians evidently depends in part upon the parties' understanding concerning the medical evidence required to support a benefit claim. 12 These questions of contract interpretation, therefore, underlie any finding of tort liability, regardless of the fact that the state court may choose to define the tort as "independent" of any contract question. 13 Congress has mandated that federal law govern [471 U.S. 202, 219] the meaning given contract terms. Since the state tort purports to give life to these terms in a different environment, it is pre-empted. </s> C </s> A final reason for holding that Congress intended 301 to pre-empt this kind of derivative tort claim is that only that result preserves the central role of arbitration in our "system of industrial self-government." Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960). If respondent had brought a contract claim under 301, he would have had to attempt to take the claim through the arbitration procedure established in the collective-bargaining agreement before bringing suit in court. Perhaps the most harmful aspect of the Wisconsin decision is that it would allow essentially the same suit to be brought directly in state court without first exhausting the grievance procedures established in the bargaining agreement. The need to preserve the effectiveness of arbitration was one of the central reasons that underlay the Court's holding in Lucas Flour. See 369 U.S., at 105 . The parties here have agreed that a neutral arbitrator will be responsible, in the first instance, for interpreting the meaning of their contract. Unless this suit is pre-empted, their federal right to decide who is to resolve contract disputes will be lost. </s> Since nearly any alleged willful breach of contract can be restated as a tort claim for breach of a good-faith obligation under a contract, the arbitrator's role in every case could be bypassed easily if 301 is not understood to pre-empt such claims. Claims involving vacation or overtime pay, work assignment, unfair discharge - in short, the whole range of disputes traditionally resolved through arbitration - could be [471 U.S. 202, 220] brought in the first instance in state court by a complaint in tort rather than in contract. A rule that permitted an individual to sidestep available grievance procedures would cause arbitration to lose most of its effectiveness, Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 (1965), as well as eviscerate a central tenet of federal labor-contract law under 301 that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance. </s> V </s> The right that Lueck asserts is rooted in contract, and the bad-faith claim he brings could have been pleaded as a contract claim under 301. Unless federal law governs that claim, the meaning of the health and disability-benefit provisions of the labor agreement would be subject to varying interpretations, and the congressional goal of a unified federal body of labor-contract law would be subverted. The requirements of 301 as understood in Lucas Flour cannot vary with the name appended to a particular cause of action. </s> It is perhaps worth emphasizing the narrow focus of the conclusion we reach today. We pass no judgment on whether this suit also would have been pre-empted by other federal laws governing employment or benefit plans. Nor do we hold that every state-law suit asserting a right that relates in some way to a provision in a collective-bargaining agreement, or more generally to the parties to such an agreement, necessarily is pre-empted by 301. The full scope of the pre-emptive effect of federal labor-contract law remains to be fleshed out on a case-by-case basis. We do hold that when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a 301 claim, see Avco Corp. v. Aero Lodge 735, 390 U.S. 557 (1968), or dismissed as pre-empted by federal labor-contract law. This complaint should have been dismissed [471 U.S. 202, 221] for failure to make use of the grievance procedure established in the collective-bargaining agreement, Republic Steel Corp. v. Maddox, 379 U.S., at 652 , or dismissed as pre-empted by 301. The judgment of the Wisconsin Supreme Court therefore is reversed. </s> It is so ordered. </s> JUSTICE POWELL took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 The letter of understanding states: </s> "Questions within the [Joint Plant Insurance] Committee's scope shall be referred to it, and shall not be processed in the first three steps of [471 U.S. 202, 205] the grievance procedure . . ., but may be presented for arbitration in the established manner once they have been discussed and have not been resolved." App. 43. </s> The Supreme Court of Wisconsin, Lueck v. Aetna Life Ins. Co., 116 Wis. 2d 559, 564, 342 N. W. 2d 699, 701-702 (1984), correctly assumed that this provision required that disputes within the Committee's scope be resolved exclusively through arbitration. See Vaca v. Sipes, 386 U.S. 171, 184 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 -653 (1965). The use of the permissive "may" is not sufficient to overcome the presumption that parties are not free to avoid the contract's arbitration procedures. Id., at 658-659. </s> [Footnote 2 Lueck asserts that ultimately he was given disability payments for a period up to March 12, 1982. We find no specific record evidence of this fact. An affidavit dated February 22, 1982, submitted by Allis-Chalmers, states that Lueck received payments from July 20, 1981, to January 15, 1982. App. to Pet. for Cert. 33. The complaint was filed on January 18. </s> [Footnote 3 In particular, the Court of Appeals found that since Allis-Chalmers' conduct arguably constituted an unfair labor practice under 8(a)(5) of the National Labor Relations Act (NLRA), 49 Stat. 452, as amended, 29 U.S.C. 158(a)(5), that section pre-empted the bad-faith claim under the reasoning of Farmer v. Carpenters, 430 U.S. 290 (1977). The court did not reach the question whether 301 of the LMRA also pre-empted the claim. </s> [Footnote 4 "We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States." Motor Coach Employees v. Lockridge, 403 U.S. 274, 289 (1971). See also Brown v. Hotel and Restaurant Employees, 468 U.S. 491 (1984); Garner v. Teamsters, 346 U.S. 485, 488 (1953). </s> [Footnote 5 In Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962), the Court held that state courts had concurrent jurisdiction over 301 claims. </s> [Footnote 6 This is not to suggest that courts may not need to consider other factors in determining whether a state rule is pre-empted by 7 or 8 of the NLRA. See Cox, Recent Developments in Federal Labor Law Pre-emption, 41 Ohio St. L. J. 277, 294-300 (1980). The NLRA pre-empts state laws that "`upset the balance of power between labor and management expressed in our national labor policy.'" Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 146 (1976), quoting Teamsters v. Morton, 377 U.S. 252, 260 (1964). See New York Telephone Co. v. New York Labor Dept., 440 U.S. 519 (1979). Thus pre-emption under 7 or 8 involves considerations related to but distinct from those at issue here. Nor do we need to discuss the different kinds of questions posed by pre-emption necessary to protect the jurisdiction of the National Labor Relations Board. See Teamsters v. Lucas Flour Co., 369 U.S. 95, 101 , n. 9 (1962). </s> The parties have not briefed the question whether this tort suit would be pre-empted by the Employee Retirement Income Security Act of 1974, 88 Stat. 829, as amended, 29 U.S.C. 1001 et seq. Because we hold that this claim is pre-empted under 301, there is no occasion to address the separate question of pre-emption by ERISA. See 29 U.S.C. 1144(b) (2)(B). </s> [Footnote 7 Analogously, in Malone v. White Motor Corp., 435 U.S. 497 (1978), the Court rejected the view that a right established in a state pension statute was pre-empted by the NLRA simply because the NLRA empowered the parties to a collective-bargaining agreement to come to a private agreement about the subject of the state law: </s> "There is little doubt that under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and [471 U.S. 202, 213] working conditions and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA . . . which expressly forecloses all state regulatory power with respect to those issues, such as pension plans, that may be the subject of collective bargaining." Id., at 504-505. </s> [Footnote 8 In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Court found that the NLRA conferred rights "on employees collectively to foster the processes of bargaining," id., at 51, and distinguished such rights which could be waived by contract between the parties, on the one hand, from an individual's substantive right derived from an independent body of law that could not be avoided by a contractual agreement, on the other. </s> [Footnote 9 116 Wis. 2d, at 565, 342 N. W. 2d, at 702. The Wisconsin court alternatively suggested that the tort claim was not pre-empted because the existence of a breach of contract, if relevant, "would constitute only a minor aspect of the controversy." Id., at 570, 342 N. W. 2d, at 705. The court then applied the labor law pre-emption doctrine established in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), and concluded that since only minor aspects of the controversy were within the jurisdiction of the NLRB, Garmon pre-emption did not apply. 116 Wis. 2d, at 570-571, 342 N. W. 2d, at 705. The court's pre-emption discussion thus concerned whether the tort claim should be pre-empted in order to protect [471 U.S. 202, 214] the NLRB's primary jurisdiction over unfair labor practice charges. </s> In addressing only the question of the necessity of protecting the Board's jurisdiction, the court "confuse[d] pre-emption which is based on actual federal protection of the conduct at issue from that which is based on the primary jurisdiction of the National Labor Relations Board." Brown v. Hotel and Restaurant Employees, 468 U.S., at 502 . So-called Garmon pre-emption involves protecting the primary jurisdiction of the NLRB, and requires a balancing of state and federal interests. The present tort suit would allow the State to provide a rule of decision where Congress has mandated that federal law should govern. In this situation the balancing of state and federal interests required by Garmon pre-emption is irrelevant, since Congress, acting within its power under the Commerce Clause, has provided that federal law must prevail. 468 U.S., at 502 -503. </s> [Footnote 10 This assumption also was relied on by respondent's counsel during oral argument. Thus, counsel acknowledged that if the contract allowed the arbitrator to provide relief for bad-faith payment of benefits, respondent would have been required to make use of the arbitration procedure and the federal law of contracts to obtain relief. Tr. of Oral Arg. 25. Counsel argued that, under state law, respondent was entitled to recover in tort only because "I'm going for something that . . . the contract does not provide for. The contract provides for payment of disability benefits. That's it. . . . [I]f the insurance company continued to sporadically make payments, Mr. Lueck wouldn't be able to do anything under the contract because he wouldn't have a grievance." Id., at 35. </s> [Footnote 11 See also Kranzush v. Badger State Mutual Casualty Co., 103 Wis. 2d 56, 64, 307 N. W. 2d 256, 261 (1981) ("The insured's right to be treated fairly . . . is rooted in the contract of insurance to which he and the insurer are parties"). Given the tort's genesis in contract law, this result is not surprising. "Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party." Restatement (Second) of Contracts 205, Comment a, p. 100 (1981). Questions of good-faith performance thus necessarily are related to the application of terms of the contractual agreement. </s> We pass no judgment on whether an independent, nonnegotiable, state-imposed duty which does not create similar problems of contract interpretation would be pre-empted under similar circumstances. </s> [Footnote 12 Here, for example, record evidence suggests that Allis-Chalmers, which ultimately was responsible for the benefit payments, and Aetna, which made the payments to claimants, had developed a complex system of overlapping procedures to determine continuing eligibility to receive benefits. The manner in which claims were verified by physicians, and the procedures for canceling benefits, were also apparently established through the practice of the parties. See Deposition of Karen Smaglik 17-23, 28-30; Deposition of A. J. Abplanalp 5-15. Had this case gone to trial, a central factual question would have been whether the manner in which Lueck's claim was processed and verified had departed substantially from the standard manner of processing such claims under the contract. That question, of course, necessarily involves contract interpretation. </s> [Footnote 13 Prior Wisconsin cases had stated that the existence of a breach of contract cannot be irrelevant to the existence of a tortious breach of duty created by the contract. In the principal Wisconsin case, the court determined that there must be a breach of contract which is not even "fairly debatable" before a tort claim could be made. Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 691, 271 N. W. 2d 368, 376 (1978). If a claim is denied in the "absence of a reasonable basis" and with "knowledge or reckless disregard of a reasonable basis," the denial is actionable in tort. Id., at 693, 271 N. W. 2d, at 377. </s> Even if the Wisconsin Supreme Court in Lueck announced a change in the nature of the tort, the derivation of the tort in contract law would still [471 U.S. 202, 219] require a court to evaluate the nature of the contractual relationship in order to assess liability. For purposes of federal labor law, the tort is not sufficiently independent of questions of contract interpretation to avoid the pre-emptive effect of 301. </s> [471 U.S. 202, 222]

United States Supreme Court CENTRAL MAGAZINE SALES, LTD. v. UNITED STATES(1967) No. 368 Argued: Decided: October 23, 1967 </s> Certiorari granted; 373 F.2d 633, reversed. </s> Richard Lipsitz for petitioner. </s> Solicitor General Marshall, Assistant Attorney General Vinson and Jerome M. Feit for the United States. </s> PER CURIAM. </s> The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Fourth Circuit is reversed. Redrup v. New York, 386 U.S. 767 . </s> MR. JUSTICE HARLAN concurs in the judgment of reversal upon the premises stated in his separate opinion in Roth v. United States, 354 U.S. 476, 496 , and in his dissenting opinion in Memoirs v. Massachusetts, 383 U.S. 413, 455 , 457. </s> THE CHIEF JUSTICE believes this case is controlled by Roth v. United States, 354 U.S. 476 , and the judgment should be affirmed in accordance with the principles enunciated in the opinion of the Court in that case. </s> MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. </s> [389 U.S. 50, 51]

United States Supreme Court LOCKHART v. FRETWELL(1993) No. 91-1393 Argued: November 3, 1992Decided: January 25, 1993 </s> An Arkansas jury convicted respondent Fretwell of capital felony murder and sentenced him to death, finding, inter alia, the aggravating factor that the murder, which occurred during a robbery, was committed for pecuniary gain. On direct appeal, Fretwell argued that his sentence was unconstitutional under the then-existing Eighth Circuit precedent of Collins v. Lockhart, 754 F.2d 258, because it was based on an aggravating factor that duplicated an element of the underlying felony - murder in the course of a robbery. However, the State Supreme Court declined to consider whether to follow Collins, because Fretwell had not objected to the aggravator's use during the sentencing phase, and that court later rejected a state habeas corpus challenge in which he raised an ineffective-assistance-of-counsel claim. The District Court conditionally vacated his sentence on federal habeas, holding that counsel's failure to raise the Collins objection amounted to prejudice under Strickland v. Washington, 466 U.S. 668 , in which deficient performance and prejudice were identified as the two components of any ineffective-assistance claim. Although the Court of Appeals had overruled Collins, it affirmed, reasoning that the trial court would have sustained a Collins objection had it been made at Fretwell's trial, and the jury would not have sentenced him to death. </s> Held: </s> Counsel's failure to make the Collins objection during the sentencing proceeding did not constitute prejudice within the meaning of Strickland v. Washington, supra. To show prejudice under Strickland, a defendant must demonstrate that counsel's errors are so serious as to deprive him of a trial whose result is unfair or unreliable, id., at 687, not merely that the outcome would have been different. Unfairness or unreliability does not result unless counsel's ineffectiveness deprives the defendant of a substantive or procedural right to which the law entitles him. The sentencing proceeding's result in the present case was neither unfair nor unreliable, because the Court of Appeals, which had decided Collins in 1985, overruled it in Perry v. Lockhart, 871 F.2d 1384, four years later. Thus, respondent suffered no prejudice from his counsel's deficient performance. Contrary to Fretwell's argument, prejudice is not determined under the laws existing at the [506 U.S. 364, 365] time of trial. Although contemporary assessment of counsel's conduct is used when determining the deficient performance component of the Strickland test, the prejudice component, with its focus on fairness and reliability, does not implicate the same concerns that motivated the former component's adoption: that a more rigid requirement could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client. The instant holding is not inconsistent with the retroactivity rule announced in Teague v. Lane, 489 U.S. 288, 310 . The circumstances that gave rise to that rule do not apply to claims raised by a federal habeas petitioner, who has no interest in the finality of the state-court judgment under which he was incarcerated and, unlike the States, ordinarily has no claim of reliance on past judicial precedent as a basis for his actions. Pp. 368-373. </s> 946 F.2d 571, reversed. </s> REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, J.J., joined. O'CONNOR, J., post, p. 373, and THOMAS, J., post, p. 375, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 376. </s> Winston Bryant, Attorney General of Arkansas, argued the cause for petitioner. With him on the briefs were Clint Miller, Senior Assistant Attorney General, and J. Brent Standridge, Assistant Attorney General. </s> Amy L. Wax argued the cause for the United States as amicus curiae urging reversal. With here on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Richard A.. Friedman. </s> Ricky R. Medlock, by appointment of the Court, 504 U.S. 984 , argued the cause and filed a brief for respondent. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Ward A. Campbell, Deputy Attorney General, and Mark L. Krotoski, Special Assistant Attorney General, James H. Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Gale A. Norton, Attorney General of Colorado, Richard N. Palmer, Chief [506 U.S. 364, 366] State's Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Larry EchoHawk, Attorney General of Idaho, Chris Gorman, Attorney General of Kentucky, Marc Racicot, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, Charles S. Crookham, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Jeffrey L. Amestoy, Attorney General of Vermont, Kenneth O. Eikenberry, Attorney General of Washington, and Joseph B. Meyer, Attorney General of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. </s> Michael Mello and Martin McClain filed a brief for the Office of the Capital Collateral Representative of Florida et al. as amicus curiae. [506 U.S. 364, 366] </s> CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. </s> In this, case we decide whether counsel's failure to make an objection in a state criminal sentencing proceeding - an objection that would have been supported by a decision which subsequently was overruled - constitutes "prejudice" within the meaning of our decision in Strickland v. Washington, 466 U.S. 668 (1984). Because the result of the sentencing proceeding in this case was rendered neither unreliable nor fundamentally unfair as a result of counsel's failure to make the objection, we answer the question in the negative. To hold otherwise would grant criminal defendants a windfall to which they are not entitled. </s> In August, 1985, an Arkansas jury convicted respondent Bobby Ray Fretwell of capital felony murder. During the penalty phase, the State argued that the evidence presented during the guilt phase established two aggravating factors: (1) the murder was committed for pecuniary gain, and (2) the murder was committed to facilitate respondent's escape. Finding the existence of the first of these factors, and no mitigating factors, the jury sentenced respondent to death. [506 U.S. 364, 367] </s> On direct appeal, respondent argued, inter alia, that his sentence should be reversed in light of Collins v. Lockhart, 754 F.2d 258 (CA8), cert. denied, 474 U.S. 1013 (1985). In that case the Court of Appeals for the Eighth Circuit held that a death sentence is unconstitutional if it is based on an aggravating factor that duplicates an element of the underlying felony, because such a factor does not genuinely narrow the class of persons eligible for the death penalty. Accordingly, respondent argued that his death sentence was unconstitutional, because pecuniary gain is an element of the underlying felony in his capital felony-murder conviction - murder in the course of a robbery. The Arkansas Supreme Court declined to consider whether to follow Collins, because respondent failed to object to the use of the pecuniary gain aggravator during the sentencing proceeding. Rejecting the remainder of respondent's claims, the Arkansas Supreme Court affirmed both the conviction and the death sentence. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). Respondent then filed a state habeas corpus challenge, arguing that trial counsel was ineffective for failing to raise the Collins objection. The Arkansas Supreme Court rejected the claim, because the Arkansas courts had not passed on the Collins question at the time of respondent's trial. Fretwell v. State, 292 Ark. 96, 97, 728 S.W.2d 180, 181 (1987). </s> Respondent filed a petition seeking federal habeas corpus relief under 28 U.S.C. 2254 in the United States District Court for the Eastern District of Arkansas. Among other things, he argued that his trial counsel did not perform effectively, because he failed to raise the Collins objection. The District Court held that counsel "had a duty to be aware of all law relevant to death penalty cases," and that failure to make the Collins objection amounted to prejudice under Strickland v. Washington, supra. 739 F.Supp. 1334, 1337 (ED Ark. 1990). The District Court granted habeas relief and conditionally vacated respondent's death sentence. Id., at 1338. [506 U.S. 364, 368] </s> The Court of Appeals affirmed by a divided vote, 946 F.2d 571 (CA8 1991), even though it had two years earlier overruled its decision in Collins in light of our decision in Lowenfield v. Phelps, 484 U.S. 231 (1988). See Perry v. Lockhart, 871 F.2d 1384 (CA8), cert. denied, 493 U.S. 959 (1989). The majority believed that the Arkansas trial court was bound under the Supremacy Clause to obey the Eighth Circuit's interpretation of the Federal Constitution. Based on this belief, it reasoned that, had counsel made the objection, the trial court would have sustained the objection and the jury would not have sentenced respondent to death. The court remanded, ordering the District Court to sentence respondent to life imprisonment without the possibility of parole. It held that, since respondent was entitled to the benefit of Collins at the time of his original sentencing proceeding, it would only "perpetuate the prejudice caused by the original sixth amendment violation" to resentence him under current law. 946 F.2d, at 578. </s> The dissenting judge argued that Strickland prejudice involves more than a determination that the outcome would have been different - it also involves the concepts of reliability and fairness. 946 F.2d, at 579 ("By focusing only on the probable effect of counsel's error at the time of Fretwell's sentencing, the majority misses the broader and more important point that his sentencing proceeding reached neither an unreliable nor an unfair result"). We granted certiorari, 504 U.S. 908 (1992), and now reverse. </s> Our decisions have emphasized that the Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial." Strickland v. Washington, supra, at 684; Nix v. Whiteside, 475 U.S. 157, 175 (1986) (noting that, under Strickland, the "benchmark" of the right to counsel is the "fairness of the adversary proceeding"); United States v. Cronic, 466 U.S. 648, 653 (1984) ("Without counsel, the right to a trial itself would be of little avail") (internal quotation marks and footnote omitted); United States v. Morrison, [506 U.S. 364, 369] 449 U.S. 361, 364 (1981) (the right to counsel "is meant to assure fairness in the adversary criminal process"). Thus, "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." United States v. Cronic, supra, at 658. </s> The test formulated in Strickland for determining whether counsel has rendered constitutionally ineffective assistance reflects this concern. In Strickland, we identified the two components to any ineffective assistance claim: (1) deficient performance and (2) prejudice. 1 Under our decisions, a criminal defendant alleging prejudice must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S., at 687 ; see also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) ("The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair, and the verdict rendered suspect"); Nix v. Whiteside, supra, at 175. Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. 2 To set aside a conviction or sentence solely because the outcome would [506 U.S. 364, 370] have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him. See Cronic, supra, at 658. </s> Our decision in Nix v. Whiteside, supra, makes this very point. The respondent in that case argued that he received ineffective assistance because his counsel refused to cooperate in presenting perjured testimony. Obviously, had the respondent presented false testimony to the jury, there might have been a reasonable probability that the jury would not have returned a verdict of guilty. Sheer outcome determination, however, was not sufficient to make out a claim under the Sixth Amendment. We held that "as a matter of law, counsel's conduct . . . cannot establish the prejudice required for relief under the second strand of the Strickland inquiry." 475 U.S., at 175 . The touchstone of an ineffective-assistance claim is the fairness of the adversary proceeding, and, "in judging prejudice and the likelihood of a different outcome, `[a] defendant has no entitlement to the luck of a lawless decisionmaker.'" Ibid. (quoting Strickland, supra, at 695); see also Nix v. Whiteside, supra, at 186-187 (BLACKMUN, J., concurring in judgment) ("To the extent that Whiteside's claim rests on the assertion that he would have been acquitted had he been able to testify falsely, Whiteside claims a right the law simply does not recognize. . . . Since Whiteside was deprived of neither a fair trial nor any of the specific constitutional rights designed to guarantee a fair trial, he has suffered no prejudice"). 3 </s> [506 U.S. 364, 371] </s> The result of the sentencing proceeding in the present case was neither unfair nor unreliable. The Court of Appeals, which had decided Collins in 1985, overruled it in Perry four years later. 4 Had the trial court chosen to follow Collins, counsel's error would have "deprived respondent of the chance to have the state court make an error in his favor." Brief for United States as Amicus Curiae 10. 5 </s> Respondent argues that the use of hindsight is inappropriate in determining prejudice under Strickland, and that this element should be determined under the laws existing at the time of trial. For support, he relies upon language used in Strickland in discussing the first part of the necessary showing - deficient performance. We held that, in order to determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to "judge . . . counsel's challenged conduct on the facts of the particular case viewed as of the time of counsel's conduct." Strickland, 466 U.S., at 690 . [506 U.S. 364, 372] </s> Ineffective-assistance-of-counsel claims will be raised only in those cases where a defendant has been found guilty of the offense charged and from the perspective of hindsight there is a natural tendency to speculate as to whether a different trial strategy might have been more successful. We adopted the rule of contemporary assessment of counsel's conduct because a more rigid requirement "could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Ibid. But the prejudice component of the Strickland test does not implicate these concerns. It focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. Id., at 687; see Kimmelman, 477 U.S., at 393 (Powell J. concurring). Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him. As we have noted, it was the premise of our grant in this case that Perry was correctly decided i.e., that respondent was not entitled to an objection based on double counting. Respondent therefore suffered no prejudice from his counsel's deficient performance. </s> The dissent contends that this holding is inconsistent with the retroactivity rule announced in Teague v. Lane, 489 U.S. 288, 310 (1989) but we think otherwise. Teague stands for the proposition that new constitutional rules of criminal procedure will not be announced or applied on collateral review. Id., at 310. As the dissent acknowledges post, at 387, this retroactivity rule was motivated by a respect for the States' strong interest in the finality of criminal convictions and the recognition that a State should not be penalized for relying on the constitutional standards that prevailed at the time the original proceedings took place. Teague, supra, at 306 (plurality opinion) (internal citations omitted). The new rule principle therefore validates reasonable good-faith [506 U.S. 364, 373] interpretations of existing precedents made by state courts, even though they are shown to be contrary to later decisions. Butler v. McKellar, 494 U.S. 407, 414 (1990). </s> A federal habeas petitioner has no interest in the finality of the state-court judgment under which he is incarcerated: Indeed, the very purpose of his habeas petition is to overturn that judgment. Nor does such a petitioner ordinarily have any claim of reliance on past judicial precedent as a basis for his actions that corresponds to the State s interest described in the quotation from Butler, supra. The result of these differences is that the State will benefit from our Teague decision in some federal habeas cases, while the habeas petitioner will not. This result is not, as the dissent would have it, a windfall for the State, but instead is a perfectly logical limitation of Teague to the circumstances which gave rise to it. Cessante ratione legis, cessat et ipsa lex. </s> The judgment of the Court of Appeals is </s> Reversed. </s> Footnotes [Footnote 1 Petitioner concedes that counsel's performance was deficient. He therefore focuses his argument exclusively on the prejudice component. </s> [Footnote 2 Contrary to the dissent's suggestion, today's decision does not involve or require a harmless-error inquiry. Harmless-error analysis is triggered only after the reviewing court discovers that an error has been committed. And under Strickland v. Washington, 466 U.S. 668 (1984), an error of constitutional magnitude occurs in the Sixth Amendment context only if the defendant demonstrates (1) deficient performance and (2) prejudice. Our opinion does nothing more than apply the case-by-case prejudice inquiry that has always been built into the Strickland test. Since we find no constitutional error, we need not and do not, consider harmlessness. </s> [Footnote 3 The dissent's attempt to distinguish Nix v. Whiteside, 475 U.S. 157 (1986), is unpersuasive because it ignores the reasoning employed by the Court. In Nix, we did not reject the respondent's claim of prejudice because perjury is "perhaps a paradigmatic example" of lawlessness. Post, at 382-383. Rather, we held that the respondent could not show Strickland prejudice merely by demonstrating that the outcome would have been different but for counsel's behavior. Nix, supra, at 175-176. Contrary to the dissent's suggestion, this reasoning was not invoked to resolve the factual oddity of one case, but rather represents a straightforward application of the rule of law announced in Strickland. Nix, supra, at 175-176. </s> [Footnote 4 Respondent argues that Collins v. Lockhart, 754 F.2d 258 (CA8), cert. denied, 474 U.S. 1013 (1985), is still good law despite our decision in Lowenfield v. Phelps, 484 U.S. 231 (1988), and urges us to decide this question as a threshold matter. We decline the invitation. A premise underlying the question presented was that Collins had been properly overruled by the Eighth Circuit. Because respondent "failed to bring [his] objections to the premise underlying the questio[n] presented to our attention in [his] opposition to the petition for certiorari," we decide that question based on the Eighth Circuit's view that Collins is no longer good law. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 465 -466, n. 10 (1992). </s> [Footnote 5 As an alternative argument, the Solicitor General relies upon the language of the habeas corpus statute, 28 U.S.C. 2254(a), which provides that habeas relief may issue only if the applicant "is in custody in violation of the Constitution or laws or treaties of the United States." According to the Solicitor General, because Lowenfield was decided at the time respondent petitioned for federal habeas relief, he could not argue that he was currently in custody in violation of the Constitution. Because of our disposition of the case on the basis of Strickland v. Washington, supra, we do not address this contention. </s> JUSTICE O'CONNOR, concurring. </s> I join the Court's opinion and concur in its judgment. I write separately only to point out that today's decision will, in the vast majority of cases, have no effect on the prejudice inquiry under Strickland v. Washington, 466 U.S. 668 (1984). The determinative question - whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id., at 694 - remains unchanged. This case, however, concerns the unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry. As we explained in Strickland, certain factors, real though they may be, simply cannot be taken into account: </s> "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, `nullification,' and the like. [506 U.S. 364, 374] A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency." Id., at 695. </s> Since Strickland, we have recognized that neither the likely effect of perjured testimony nor the impact of a meritless Fourth Amendment objection is an appropriate consideration in the prejudice inquiry. Nix v. Whiteside, 475 U.S. 157 (1986) (failure to put on perjured testimony); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986) (where the defendant claims that the deficient performance was failure to make a suppression motion, "a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim" (emphasis added)). </s> Today the Court identifies another factor that ought not inform the prejudice inquiry. Specifically, today we hold that the court making the prejudice determination may not consider the effect of an objection it knows to be wholly meritless under current governing law, even if the objection might have been considered meritorious at the time of its omission. That narrow holding, of course, precisely disposes of this case as it appeared before the Eighth Circuit. The omitted objection of which respondent complained very well may have been sustained had it been raised at trial. But by the time the Eighth Circuit reviewed respondent's ineffective assistance claim, on-point Circuit authority bound that court to hold the objection meritless; the Arkansas Supreme Court had rejected the objection as well. Perry v. Lockhart, 871 F.2d 1384, 1392-1394 (CA8), cert. denied, 493 U.S. 959 (1989); O'Rourke v. State, 295 Ark. 57, 63-64, 746 S.W.2d 52, 55-56 (1988). Consequently, respondent's claim of [506 U.S. 364, 375] prejudice was based not on the allegation that he was denied an advantage the law might permit him. It was predicated instead on the suggestion that he might have been denied "a right the law simply does not recognize," Nix, supra, at 186-187 (BLACKMUN, J., concurring in judgment), namely the right to "have the state court make an error in his favor," ante, at 371 (opinion of the Court) (internal quotation marks omitted). It seems to me that the impact of advocating a decidedly incorrect point of law, like the influence of perjured testimony, is not a proper consideration when assessing "the likelihood of a result more favorable to the defendant." Strickland, supra, at 695. I therefore join the Court in holding that, in these somewhat unusual circumstances, the Court of Appeals should have concluded that respondent suffered no legally cognizable prejudice. </s> JUSTICE THOMAS, concurring. </s> I join the Court's opinion in its entirety. I write separately to call attention to what can only be described as a fundamental misunderstanding of the Supremacy Clause on the part of the Court of Appeals. </s> In concluding that respondent had been prejudiced by his attorney's failure to make an objection based upon Collins v. Lockhart, 754 F.2d 258 (CA8), cert. denied, 474 U.S. 1013 (1985), the Court of Appeals said the following: "[S]ince state courts are bound by the Supremacy Clause to obey federal constitutional law, we conclude that a reasonable state trial court would have sustained an objection based on Collins had Fretwell's attorney made one." 946 F.2d 571, 577 (CA8 1991). I do not understand this statement to mean that there is a reasonable probability that the Arkansas trial court would have found Collins persuasive, and therefore would have chosen to follow it. Instead, the Court of Appeals appears to have been under the impression that the Arkansas trial court would have been compelled to follow Collins by the Supremacy Clause. [506 U.S. 364, 376] </s> It was mistaken. The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located. See Steffel v. Thompson, 415 U.S. 452, 482 , n. 3 (1974) (REHNQUIST, J., concurring); United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-1076 (CA7 1970), cert. denied, 402 U.S. 983 (1971); Shapiro, State Courts and Federal Declaratory Judgments, 74 Nw.U.L.Rev. 759, 771, 774 (1979). An Arkansas trial court is bound by this Court's (and by the Arkansas Supreme Court's and Arkansas Court of Appeals') interpretation of federal law, but if it follows the Eighth Circuit's interpretation of federal law, it does so only because it chooses to, and not because it must. </s> I agree with the Court's holding that the Court of Appeals misinterpreted the Sixth Amendment. I wish to make it clear that it misinterpreted the Supremacy Clause as well. </s> JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. </s> Concerned that respondent Fretwell would otherwise receive the "windfall" of life imprisonment, see ante, at 366, 370, the Court today reaches the astonishing conclusion that deficient performance by counsel does not prejudice a defendant even when it results in the erroneous imposition of a death sentence. The Court's aversion to windfalls seems to disappear, however, when the State is the favored recipient. For the end result in this case is that the State, through the coincidence of inadequate representation and fortuitous timing, may carry out a death sentence that was invalid when imposed. [506 U.S. 364, 377] </s> This extraordinary result rests entirely on the retrospective application of two changes in the law occurring after respondent's trial and sentencing. The first of these changes, on which the Court relies explicitly, affected the eligibility of defendants like Fretwell for the death penalty. The second change, never directly identified as such, is the Court's unprincipled transformation of the standards governing ineffective-assistance claims through the introduction of an element of hindsight that has no place in our Sixth Amendment jurisprudence. </s> In my view, the Court of Appeals correctly determined that "fundamental unfairness exists when a prisoner receives a death sentence, rather than life imprisonment, solely because of his attorney's error. 1 The Court's post hoc rationale for avoiding this conclusion, self-evident until today, is both unconvincing and unjust. </s> I </s> "Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself." Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). For that reason, we have held squarely that the right to counsel guaranteed by the Constitution is a right to the "effective assistance of counsel." See United States v. Cronic, 466 U.S. 648, 654 (1984). Absent competent counsel, ready and able to subject the prosecution's case to the "crucible of meaningful adversarial testing," there can be no guarantee that the adversarial system will function properly to produce just and reliable results. Id., at 656. See Strickland v. Washington, 466 U.S. 668, 684 -687 (1984). </s> In some cases, the circumstances surrounding a defendant's representation so strongly suggest abridgment of the [506 U.S. 364, 378] right to effective assistance that prejudice is presumed. When, for instance, counsel is prevented from offering assistance during a critical phase of the proceedings, 2 or labors under a conflict of interest that affects his performance, 3 then we assume a breakdown in the adversarial process that renders the resulting verdict unreliable. See United States v. Cronic, 466 U.S., at 658 -660. We need not even if we could, inquire further into the precise nature of the prejudice sustained. See Glasser v. United States, 315 U.S. 60 ; 75-76 (1942). It is enough that the adversarial testing envisioned by the Sixth Amendment has been thwarted; the result is constitutionally unacceptable, and reversal is automatic. See United States v. Cronic, 466 U.S., at 656 -657; Holloway v. Arkansas, 435 U.S. 475, 489 (1978). 4 </s> In Strickland v. Washington, 466 U.S. 668 (1984), the Court decided that certain errors by counsel will give rise to a similar presumption of adversarial breakdown. Because the consequences that attend such a presumption - the setting aside of a conviction or sentence - are so serious, the Court took pains to limit the class of errors that would support an ineffective-assistance claim. First, an error must be so egregious that it indicates "deficient performance" by counsel, falling outside the "wide range of reasonable [506 U.S. 364, 379] professional assistance." Id., at 687, 689. Second, the error must be so severe that it gives rise to prejudice, defined quite clearly in Strickland as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. Many significant errors, as the Court recognized in Kimmelman v. Morrison, 477 U.S. 365, 381 -382 (1986), will not meet this "highly demanding" standard. But those that do will require reversal, not because they deprive a defendant of some discrete and independent trial right, but because, as Strickland held, they reflect performance by counsel that has "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S., at 686 . </s> Under this well-established standard, as the District Court and Court of Appeals both determined, respondent is entitled to relief on his ineffective-assistance claim. That his counsel's performance was so wanting that it was "deficient" for Strickland purposes is not contested. Nor can it be seriously disputed that the decision reached would "reasonably likely have been different," id., at 696, but for counsel's failure to make a double-counting objection supported by Eighth Circuit law. 5 Under Strickland, this is the end of the inquiry. Respondent has identified an error of such magnitude that it falls within the narrow class of attorney errors precluding reliance on the outcome of the proceeding. See Id., at 691-692. In Sixth Amendment terms, it is as though respondent had shown an actual conflict of interest, or the complete absence of counsel during some part of the sentencing proceeding: The adversary process has malfunctioned, and the resulting verdict is therefore, and without more, constitutionally unacceptable. [506 U.S. 364, 380] </s> This is not, however, the standard that the Court applies today. Instead, the Court now demands that respondent point to some additional indicia of unreliability, some specific way in which the breakdown of the adversarial process affected respondent's discrete trial rights. Ante, at 369-370. But this is precisely the kind of harmless error inquiry that the Court has rejected, time and again, in the Sixth Amendment context. When a criminal proceeding "loses its character as a confrontation between adversaries," United States v. Cronic, 466 U.S., at 656 -657, the harm done a defendant is as certain as it is difficult to define. Accordingly, we consistently have declined to require that a defendant who faces the State without adequate assistance show how he is harmed as a result. See Cuyler v. Sullivan, 446 U.S., at 349 ; Holloway v. Arkansas, 435 U.S., at 489 -491; Hamilton v. Alabama, 368 U.S. 52, 55 (1961); Williams v. Kaiser, 323 U.S. 471, 475 -477 (1945). "The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S., at 76 . 6 </s> [506 U.S. 364, 381] </s> The Court compounds its error by insisting that respondent make his newly required showing from the vantage point of hindsight. Hindsight has no place in a Sixth Amendment jurisprudence that focuses, quite rightly, on protecting the adversarial balance at trial. Respondent was denied "the assistance necessary to justify reliance on the outcome of the proceeding," Strickland v. Washington, 466 U.S., at 692 , because his counsel's performance was so far below professional standards that it satisfied Strickland's first prong, and so severely lacking that the verdict "would reasonably likely have been different absent the errors," id., at 696, under the second prong. It is simply irrelevant that we can now say, with hindsight, that, had counsel failed to make a double-counting objection four years after the fact, his performance would have been neither deficient nor prejudicial. For as it happened, counsel's failure to object came at a time when it signified a breakdown in the adversarial process. A post hoc vision of what would have been the case years later has no bearing on the force of this showing. </s> Not surprisingly, the Court's reliance on hindsight finds no support in Strickland itself. Strickland makes clear that the merits of an ineffective-assistance claim must be "viewed as of the time of counsel's conduct." Id., at 690. As the Court notes, this point is stated explicitly with respect to Strickland's first prong, the quality of counsel's performance. Ante, at 371-372. What the Court ignores, however, is that the same point is implicit in Strickland's entire discussion of the second prong. By defining prejudice in terms of the effect of counsel's errors on the outcome of the proceedings, [506 U.S. 364, 382] based on the "totality of the evidence before the judge or jury," 466 U.S., at 695 , the Strickland Court establishes its point of reference firmly at the time of trial or sentencing. </s> To justify its revision of the Strickland standards for judging ineffective assistance claims, the Court relies in large part on Nix v. Whiteside, 475 U.S. 157 (1986). Ante, at 370. Nix cannot, however, perform the heavy duty the Court assigns it. A rather unusual case, Nix involved a claim that counsel was ineffective because he refused to present a defense based on perjured testimony. It should suffice to say here that reliance on perjured testimony and reliance on current Court of Appeals case law are not remotely comparable, and that to suggest otherwise is simply disingenuous. But if further distinction is needed, we need not search far to find it. </s> First, the Court's decision in Nix rests in part on the conclusion that counsel's refusal to cooperate in presentation of perjury falls "well within . . . the range of reasonable professional conduct acceptable under Strickland." Nix v. Whiteside, 475 U.S. at 171; cf. United States v. Cronic, 466 U.S., at 656 , n. 19 ("Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one . . ."). In other words, ineffective-assistance claims predicated on failure to make wholly frivolous or unethical arguments will generally be dispensed with under Strickland's first prong, without recourse to the second, and hence will not raise the questions at issue in this case. </s> To the extent that Nix does address Strickland's second, or "prejudice," prong, it does so in a context quite different from that presented here. In Strickland, the Court cautioned that assessment of the likelihood of a different outcome should exclude the possibility of "a lawless decisionmaker," who fails to "reasonably, conscientiously, and impartially appl[y] the standards that govern the decision." 466 U.S., at 695 . The Nix Court faced what is perhaps a [506 U.S. 364, 383] paradigmatic example of the "lawlessness" to which Strickland referred, in the suggestion that perjured testimony might have undermined the decisionmaker's judgment, and concluded quite correctly that the defendant could not rely on any outcome-determinative effects of perjury to make his claim. Nix v. Whiteside, 475 U.S., at 175 ; see also id., at 186 (BLACKMUN, J., concurring in judgment). I do not read the Court's decision today as suggesting that a state trial court need fear the label "lawless" if it follows the decision of a United States Court of Appeals on a matter of federal constitutional law. Accordingly, Nix's discussion of perjury and lawlessness is simply inapposite to the issues presented here. </s> II </s> It is not disputed in this case that the performance of respondent's counsel was so deficient that it met the Strickland standard. What deserves emphasis here is the proven connection between that deficiency and the outcome of respondent's sentencing proceeding, as well as the presumptive effect of counsel's performance on the adversarial process itself. </s> Respondent was convicted of committing murder in the course of a robbery. The Arkansas trial court then held a separate sentencing hearing, devoted exclusively to the question whether respondent was eligible for the death penalty, or would instead receive a life sentence without parole. The State relied on two aggravating circumstances to establish its right to execute respondent. The first - the alleged purpose of avoiding arrest - was found by the jury to be unsupported by the evidence. The second - that the felony was committed for purposes of pecuniary gain - was obviously supported by the evidence, as respondent had already been convicted of robbery in connection with the murder. Thus, the critical question on which respondent's death-eligibility turned was whether it was permissible, as a matter of law, to "double count" by relying on pecuniary gain as [506 U.S. 364, 384] an aggravating circumstance and also on robbery as an element of the crime. </s> Counsel's duty at this stage of the proceedings was clear. In addition to general investigation and preparation for the penalty phase, counsel's primary obligation was to advise the trial judge about the correct answer to this crucial question of law. Had he handled this professional responsibility with anything approaching the "reasonableness" demanded by Strickland, 466 U.S., at 687 -691, he would have found an Eighth Circuit case directly in point, addressing the same Arkansas statute under which respondent was sentenced and holding such double counting unconstitutional. Collins v. Lockhart, 754 F.2d 258, 261-265, cert. denied, 474 U.S. 1013 (1985). The failure to find that critically important case constitutes irrefutable evidence of counsel's inadequate performance. The fact that Collins was later overruled does not minimize in the slightest the force of that evidence. </s> Moreover, had counsel made a Collins objection to the pecuniary gain aggravating circumstance, we must assume that the trial court would have sustained it. As the District Court stated: "Although Collins has since been overruled, it was the law in the Eighth Circuit at the time of [respondent's] trial, and this Court has no reason to believe that the trial court would have chosen to disregard it." 739 F.Supp. 1334, 1337 (ED Ark. 1990). Neither petitioner nor the Court relies on disagreement with this finding. See n. 5, supra. Nor could they. As we explained in Strickland, it is not open to the State to argue that an idiosyncratic state trial judge might have refused to follow circuit precedent and overruled a Collins objection. 466 U.S., at 695 . </s> Applying Strickland to these facts, the District Court correctly held that counsel's failure to call the trial judge's attention to Collins constituted ineffective assistance, and "seriously undermined the proper functioning of the adversarial process." 739 F.Supp., at 1336. Because it granted relief on this basis, the District Court found it unnecessary to [506 U.S. 364, 385] reach additional ineffective assistance claims predicated on counsel's alleged failure to investigate or prepare for the penalty phase. Id., at 1337-1338. 7 By the time the case reached the Court of Appeals, deficient performance was conceded, and the Eighth Circuit had only to affirm the District Court conclusion that "a reasonable state trial court would have sustained an objection based on Collins had Fretwell's attorney made one." 946 F.2d, at 577. 8 </s> Thus, counsel's deficient performance, in the form of his failure to discover Collins and bring it to the court's attention, is directly linked to the outcome of respondent's sentencing proceeding. Because of counsel's error, respondent received the death penalty rather than life imprisonment. [506 U.S. 364, 386] 946 F.2d, at 577. Under Strickland, of course, respondent need not show quite so much; it is sufficient that "the decision reached would reasonably likely have been different absent the errors." 466 U.S., at 696 . A fortiori, a showing of outcome determination as strong as that made here is enough to support a Strickland claim. </s> In my judgment, respondent might well be entitled to relief even if he could not show prejudice as defined by Strickland's second prong. The fact that counsel's performance constituted an abject failure to address the most important legal question at issue in his client's death penalty hearing gives rise, without more, to a powerful presumption of breakdown in the entire adversarial system. That presumption is at least as strong, if not stronger, than the inferences of adversarial malfunction that required reversal in cases like Holloway and Glasser, see supra, at 377-378. In other words, there may be exceptional cases in which counsel's performance falls so grievously far below acceptable standards under Strickland's first prong that it functions as the equivalent of an actual conflict of interest, generating a presumption of prejudice and automatic reversal. I think this may well be one of those cases in which, as we wrote in Holloway, reversal would be appropriate "even if no particular prejudice is shown, and even if the defendant was clearly guilty." 435 U.S., at 489 (internal quotation marks and citation omitted). </s> Of course, we need not go nearly so far to resolve the case before us. Under the Strickland standard that prevailed until today, respondent is entitled to relief on his ineffective-assistance claim, having shown both deficient performance and a reasonable likelihood of a different outcome. The Court can avoid this result only by effecting a dramatic change in that standard, and then applying it retroactively to respondent's case. In my view, the Court's decision marks a startling and most unwise departure from our commitment [506 U.S. 364, 387] to a system that ensures fairness and reliability by subjecting the prosecution's case to meaningful adversarial testing. </s> III </s> Changes in the law are characteristic of constitutional adjudication. Prior to 1985, most of those changes were in the direction of increasing the protection afforded an individual accused of crime. To vindicate the legitimate reliance interests of state law enforcement authorities, however, and in recognition of the state interest in preserving the outcome of trials adhering to contemporaneous standards, the Court often refused to apply its new rules retroactively. 9 In Teague v. Lane, 489 U.S. 288, 310 (1989), the Court gave full expression to its general policy of allowing States "to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards," holding that the claims of federal habeas petitioners will, in all but exceptional cases, be judged under the standards prevailing at the time of trial. 10 </s> Since 1985, relevant changes in the law often have been in a different direction, affording less, rather than more, [506 U.S. 364, 388] protection to individual defendants. 11 An even handed approach to retroactivity would seem to require that we continue to evaluate defendants' claims under the law as it stood at the time of trial. If, under Teague, a defendant may not take advantage of subsequent changes in the law when they are favorable to him, then there is no self-evident reason why a State should be able to take advantage of subsequent changes in the law when they are adverse to his interests. </s> The Court, however, takes a directly contrary approach here. Today's decision rests critically on the proposition that respondent's ineffective-assistance claim is to be judged under the law as it exists today, rather than the law as it existed at the time of trial and sentencing. Ante, at 372. In other words, respondent must make his case under Perry v. Lockhart, 871 F.2d 1384 (CA8), cert. denied, 493 U.S. 959 (1989), decided four years after his sentencing; unlike the State, he is not entitled to rely on "then-existing constitutional standards," Teague, 489 U.S., at 310 , which rendered him ineligible for the death penalty at the time that sentence was imposed. </s> I have already explained why the Court's reliance on hindsight is incompatible with our right to counsel jurisprudence. It is also, in my judgment, inconsistent with case law that insists on contemporaneous constitutional standards as the benchmark against which defendants' claims are to be measured. A rule that generally precludes defendants from taking advantage of postconviction changes in the law, but allows the State to do so, cannot be reconciled with this [506 U.S. 364, 389] Court's duty to administer justice impartially. Elementary fairness dictates that the Court should evaluate respondent's ineffective-assistance claim under the law as it stood when he was convicted and sentenced - under Collins, and also under Strickland as it was understood until today. </s> As I see it, the only windfall at issue here is the one conferred upon the State by the Court's decision. Had respondent's counsel rendered effective assistance, the State would have been required to justify respondent's execution under a legal regime that included Collins. It is highly unlikely that it could have met this burden in the Arkansas courts, see supra, at 384-385, and it almost certainly could not have done so in the federal courts on habeas review. Now, however, the State is permitted to exploit the ineffective assistance of respondent's counsel, and the lapse in time it provided, by capitalizing on postsentencing changes in the law to justify an execution. Because this windfall is one the Sixth Amendment prevents us from bestowing, I respectfully dissent. </s> [Footnote 1 946 F.2d 571, 577 (CA8 1991). </s> [Footnote 2 See, e.g., Geders v. United States, 425 U.S. 80 (1976) (attorney-client consultation prevented during overnight recess); Hamilton v. Alabama, 368 U.S. 52 (1961) (assistance denied during arraignment). </s> [Footnote 3 See, e.g., Cuyler v. Sullivan, 446 U.S. 335 (1980) (actual conflict adversely affecting performance constitutes reversible error); Glasser v. United States, 315 U.S. 60 (1942) (joint representation of codefendants with inconsistent interests, over objection, constitutes reversible error). </s> [Footnote 4 "[T]his Court has concluded that the assistance of counsel is among those constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic." Holloway v. Arkansas, 435 U.S., at 489 (internal quotation marks and citation omitted). </s> [Footnote 5 Neither petitioner nor the Court today directly challenges the District Court's unambiguous conclusion that "the trial court would have followed the ruling in Collins had trial counsel made an appropriate motion." 739 F.Supp. 1334, 1337 (ED Ark. 1990). </s> [Footnote 6 It is worth noting that Kimmelman v. Morrison, 477 U.S. 365 (1986), is entirely consistent with this line of case law, rendering petitioner's reliance on that case misplaced. In Kimmelman, the Court held that, although certain Fourth Amendment violations are themselves not cognizable on federal habeas review, see Stone v. Powell, 428 U.S. 465 (1976), counsel's failure to litigate such Fourth Amendment claims competently may still give rise to a cognizable ineffective-assistance claim. In other words, attorney error gives rise to an ineffective-assistance claim not because it is connected to some other, independent right to which a defendant is entitled, but because in itself it "upset[s] the adversarial balance between defense and prosecution," so that the trial is rendered unfair and the verdict suspect. 477 U.S., at 374 . </s> That Kimmelman at one point refers to the necessity for a "meritorious" Fourth Amendment claim, id., at 382, as emphasized by JUSTICE O'CONNOR in her concurrence, ante, at 374, represents no more than straightforward application of Strickland's outcome-determinative test [506 U.S. 364, 381] for prejudice. Simply put, an attorney's failure to make a Fourth Amendment objection will not alter the outcome of a proceeding if the objection is meritless, and hence would not be sustained. Nothing in Kimmelman suggests that failure to make an objection supported by current precedent, and hence likely to be sustained, would amount to anything less than ineffective assistance. </s> [Footnote 7 It should come as no surprise that counsel's conduct gave rise to additional ineffective-assistance claims, founded on other deficiencies. An attorney who makes one error of Strickland proportions is unlikely to have turned in a performance adequate in all other respects. For instance, it may well be more than coincidence that the same counsel who failed to discover United States Court of Appeals precedent holding application of the Arkansas capital sentencing statute to defendants like his client unconstitutional also failed to convince the jury of the existence of any mitigating circumstances in his client's favor. 739 F.Supp., at 1335. The connection in this case between counsel's failure to make a Collins objection and his overall preparation and investigation for the penalty phase seems perfectly clear. Nothing in the Court's opinion today would preclude the District Court, on remand, from considering the lack of an objection as evidence relevant to the larger question of the adequacy of counsel's penalty phase preparation and investigation. </s> [Footnote 8 I cannot agree with the gloss put on the opinion below by the Court, ante, at 368, and by JUSTICE THOMAS in his concurrence, ante, at 375. There is nothing in the text of that opinion to suggest that the Court of Appeals believed the Arkansas trial court bound by the Supremacy Clause to obey Eighth Circuit precedent. The Court of Appeals simply noted that the trial court was "bound by the Supremacy Clause to obey federal constitutional law," 946 F.2d, at 577 (emphasis added), which is why Eighth Circuit precedent giving content to that law would have been relevant to the trial court's decisionmaking. I see no reason to infer from its plain and correct statement of the law that the Eighth Circuit actually meant to express the view addressed by JUSTICE THOMAS. </s> [Footnote 9 See, e.g., Stovall v. Denno, 388 U.S. 293, 300 (1967) ("factors of reliance and burden on the administration of justice" mandate against retroactive application of United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967), establishing right to counsel at pretrial identification); Johnson v. New Jersey, 384 U.S. 719 (1966) (declining to apply Miranda v. Arizona, 384 U.S. 436 (1966), retroactively); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966) (Griffin v. California, 380 U.S. 609 (1965), prohibiting adverse comment on a defendant's silence, does not apply retroactively). </s> [Footnote 10 See also Engle v. Isaac, 456 U.S. 107, 128 -129, n. 33 (1982) (discussing "frustration" of state courts when they "faithfully apply existing constitutional law," only to have change in constitutional standards applied retroactively). </s> [Footnote 11 See, e.g., Payne v. Tennessee, 501 U.S. 808 (1991) (Eighth Amendment does not preclude use of victim impact evidence against capital defendant at sentencing; overruling Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989)); Arizona v. Fulminante, 499 U.S. 279 (1991) (harmless-error rule applicable to admission of involuntary confessions); Duckworth v. Eagan, 492 U.S. 195 (1989) (Miranda warnings adequate despite suggestion that lawyer will not be appointed until after interrogation); Florida v. Riley, 488 U.S. 445 (1989) (police may search greenhouse from helicopter at altitude of 400 feet without warrant). </s> [506 U.S. 364, 390]

United States Supreme Court GOODYEAR ATOMIC CORP. v. MILLER(1988) No. 86-1172 Argued: January 19, 1988Decided: May 23, 1988 </s> Appellee Miller, an employee of appellant at an Ohio nuclear production facility owned by the United States but operated by appellant, a private contractor, received a workers' compensation award from appellee Ohio Industrial Commission (Commission) for injuries sustained in a fall allegedly caused by a bolt protruding from the scaffold on which he was working. On the basis of a state safety regulation prohibiting scaffolds from having projecting parts, Miller then sought a supplemental award under a state constitutional provision authorizing such an award when an injury is caused by an employer's failure to comply with any specific state safety requirement. The Commission denied the claim, but the State Court of Appeals ordered the Commission to consider Miller's supplemental application. The State Supreme Court affirmed, ruling that federal law did not pre-empt Ohio from applying safety requirements unrelated to radiation hazards to nuclear facilities. </s> Held: </s> 1. This Court has jurisdiction under 28 U.S.C. 1257(2), since the Ohio Supreme Court upheld the application of the State's additional-award provision to the facility in question as against the contention that such application violated the Supremacy Clause of the Federal Constitution. Cf. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 . Application of the "pragmatic approach" utilized in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 486 , compels the conclusion that the state court's judgment was "final" within the meaning of 1257(2) even though further proceedings before the Commission are anticipated, since the judgment finally determined the federal pre-emption question, and a reversal of that judgment would preclude any further proceedings. Moreover, even if appellant prevails before the Commission on non-federal grounds, the State Supreme Court's unreviewed decision might seriously erode federal nuclear production policy by sanctioning direct state regulation of nonradiological hazards at the only facility producing nuclear fuel for the Navy, and has important implications for the regulation of federally owned nuclear production facilities in other States. Pp. 178-180. </s> 2. The Supremacy Clause does not bar Ohio from applying its additional-award provision to a private contractor operating a federally owned nuclear production facility that performs a federal [486 U.S. 174, 175] function. Such facilities are shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress provides "clear and unambiguous" authorization for such regulation. Hancock v. Train, 426 U.S. 167 . Even if the additional-award provision is sufficiently akin to direct state regulation to be potentially barred by the Supremacy Clause, 40 U.S.C. 290 - which empowers States to apply "workmen's compensation laws" to federal premises to the same extent as such laws are applied to private facilities - unambiguously provides the requisite clear congressional authorization for the application of the provision. The contention that the above-quoted, undefined phrase applies only to typical workers' compensation Acts and not to the additional-award provision cannot be squared with 290's plain language, which places no express limitation on the type of workers' compensation scheme that is authorized, or with the statute's history, which demonstrates that, at the time of its enactment, a substantial number of States provided additional awards for violation of safety regulations, a matter of which Congress was presumably aware. The fact that, in enacting 290, Congress rejected a proposal that would have authorized States to apply their safety and insurance laws directly to federal projects does not preclude, and is in fact consistent with, the allowance of additional-award provisions' incidental regulatory effects, which are significantly less intrusive than direct regulation on the operation of federal projects. Pp. 180-186. </s> 26 Ohio St. 3d 110, 497 N. E. 2d 76, affirmed. </s> MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, BLACKMUN, STEVENS, and SCALIA, JJ., joined. WHITE, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 186. KENNEDY, J., took no part in the consideration or decision of the case. </s> Robert E. Tait argued the cause and filed briefs for appellant. </s> Thomas W. Merrill argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, Richard G. Taranto, and Leonard Schaitman. </s> Stewart R. Jaffy argued the cause for appellees. With him on the brief for appellee Miller were Michael H. Gottesman, David M. Silberman, and Laurence Gold. Anthony J. Celebrezze, Jr., Attorney General of Ohio, and Helen M. [486 U.S. 174, 176] Ninos, Dennis L. Hufstader, and Jeffery W. Clark, Assistant Attorneys General, filed a brief for appellee Industrial Commission of Ohio. * </s> [Footnote * Briefs of amici curiae urging affirmance were filed for the National Conference of State Legislatures et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Beate Bloch; and for the Oil, Chemical, and Atomic Workers International Union by Donald J. Mares and John W. McKendree. </s> JUSTICE MARSHALL delivered the opinion of the Court. </s> The issue presented in this case is whether the Supremacy Clause bars the State of Ohio from subjecting a private contractor operating a federally owned nuclear production facility to a state-law workers' compensation provision that provides an increased award for injuries resulting from an employer's violation of a state safety regulation. </s> I </s> This case arises from an accident involving a worker at the Portsmouth Gaseous Diffusion Plant, a nuclear production facility located near Piketon, Ohio. The plant is owned by the United States, but at all times relevant to this action it was operated by a private company, appellant Goodyear Atomic Corporation, under contract with the Department of Energy (DOE). On July 30, 1980, appellee Esto Miller, a maintenance mechanic employed by Goodyear at the Portsmouth plant, fell from a scaffold while performing routine maintenance work and fractured his left ankle. His fall apparently was caused when his glove caught on a bolt protruding from the guardrail of the scaffolding. Miller applied to the Ohio Industrial Commission for an award under the State's workers' compensation program, for which Goodyear pays premiums to cover its Portsmouth employees. He received about $9,000 in workers' compensation. </s> After returning to work, Miller filed an application for an additional award on the ground that his injury had resulted from Goodyear's violation of a state safety requirement. [486 U.S. 174, 177] Miller alleged that his fall was caused by Goodyear's failure to comply with Ohio Admin. Code 4121:1-5-03(D)(2) (1987), which provides that "[e]xposed surfaces [on scaffolds] shall be free from sharp edges, burrs or other projecting parts." The Ohio Constitution provides that when an injury is caused by an employer's failure to comply with a specific state safety requirement, the Industrial Commission shall provide an additional award of 15% to 50% of the benefits already received. Ohio Const., Art. II, 35. The state insurance fund recoups these additional payments by increasing the premium paid by the employer. Ibid. </s> The Ohio Industrial Commission denied Miller's claim for a supplemental award. The Commission held that "the [Ohio] Codes of Specific Safety Requirements . . . may not be applied to the Portsmouth Gaseous Diffusion Plant under the doctrine of federal preemption." Claim No. 80-19975 (Mar. 8, 1983), App. 18. Miller filed a mandamus action in the Ohio Court of Appeals, seeking an order directing the Industrial Commission to consider his application. The court held that "[u]ntil it is clear that the federal government has preempted the field of safety regulation for safety hazards unrelated to radiation, . . . state specific safety regulations that give rise to an award for violation thereof are equally applicable to an entity that contracts with the federal government for operation of a nuclear power facility owned exclusively by the federal government." No. 84AP-208 (July 25, 1985), App. 17. The court therefore ordered the Industrial Commission to consider Miller's claim that he was due an additional award because his injury was caused by a violation of a state safety regulation. </s> A divided Ohio Supreme Court affirmed the decision of the Court of Appeals. State ex rel. Miller v. Ohio Industrial Comm'n, 26 Ohio St. 3d 110, 497 N. E. 2d 76 (1986) (per curiam). Relying on the federal pre-emption analysis of Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), the court held that the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. 2011 et seq. (1982 ed. and Supp. IV), [486 U.S. 174, 178] did not pre-empt Ohio from applying workers' compensation safety requirements unrelated to radiation hazards to nuclear facilities. 26 Ohio St. 3d, at 111-112, 497 N. E. 2d, at 77-78. In dissent, Justice Wright agreed with Goodyear's separate claim, not addressed by the majority, that in the absence of clearly expressed authorization from Congress, the Supremacy Clause barred the application of the state workers' compensation safety requirements to a federally owned facility. Justice Wright argued that Congress had not provided the necessary clear authorization to justify the application of the Ohio workers' compensation scheme. Id., at 112-115, 497 N. E. 2d, at 78-80. We noted probable jurisdiction of Goodyear's appeal, 483 U.S. 1004 (1987), and now affirm the judgment of the Ohio Supreme Court on different reasoning. </s> II </s> Although neither party contests our appellate jurisdiction over this case, we must independently determine as a threshold matter that we have jurisdiction. See Brown Shoe Co. v. United States, 370 U.S. 294, 305 -306 (1962). Title 28 U.S.C. 1257(2) gives this Court appellate jurisdiction over final judgments by the highest court of a State where the validity of a state statute is drawn in question on the ground of its being repugnant to the Constitution and the decision is in favor of its validity. "[A] state statute is sustained within the meaning of 1257(2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds." Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 441 (1979). In this case, the additional-award provision of Ohio's workers' compensation statute, as applied to the Portsmouth facility, was drawn in question on the ground that it violated the Supremacy Clause, and the Ohio Supreme Court upheld the statute's application. </s> The more difficult question is whether the judgment is "final" within the meaning of 28 U.S.C. 1257(2), even though further proceedings are anticipated before the Ohio Industrial [486 U.S. 174, 179] Commission. The judgment of the Ohio Supreme Court requires that the Industrial Commission consider appellee's claim that his injury was caused by a failure to comply with a state safety regulation. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), we recognized four situations in which this Court views a judgment as final under 1257(2) although further state proceedings are contemplated. In the fourth category are cases </s> "where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation." Id., at 482-483. </s> We believe the present case falls within this fourth category. The federal question whether the additional workers' compensation award is barred by federal law has been finally determined by the Ohio Supreme Court, and a reversal of the Ohio Supreme Court's holding would preclude any further proceedings. In addition, even if appellant prevails before the Industrial Commission on nonfederal grounds, for example, if the Commission determines that there was no violation of the state safety regulation, the unreviewed decision of the Ohio Supreme Court might seriously erode federal policy in the area of nuclear production. The federal pre-emption analysis of the Ohio court sanctions direct state regulation of [486 U.S. 174, 180] nonradiological hazards at the Portsmouth facility, the only nuclear facility producing nuclear fuel for the Navy's nuclear fleet. Moreover, the decision has important implications for the regulation of federally owned nuclear production facilities in other States. Following our "pragmatic approach" to the question of finality, Cox Broadcasting Corp. v. Cohn, supra, at 486, we therefore conclude that the Ohio decision on the federal issue is a final judgment for purposes of 28 U.S.C. 1257(2). </s> III </s> It is well settled that the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides "clear and unambiguous" authorization for such regulation. EPA v. State Water Resources Control Board, 426 U.S. 200, 211 (1976); accord, Hancock v. Train, 426 U.S. 167, 178 -179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). As an initial matter, therefore, we consider whether the federally owned Portsmouth facility is likewise shielded from direct state regulation even though the facility is operated by a private party under contract with the United States. 1 We believe this question was answered in Hancock v. Train, 426 U.S., at 168 , in which we faced the issue whether a State could enforce its pollution emission limitations against "federally owned or operated installations" by requiring that such installations obtain a state permit. One of the facilities at issue in Hancock was the Paducah Gaseous Diffusion Plant, [486 U.S. 174, 181] which, like the Portsmouth facility, is a federally owned nuclear production facility operated by a private contractor. Id., at 174, n. 23. Nuclear production facilities such as the Paducah and Portsmouth plants are authorized by statute to carry out a federal mission, with federal property, under federal control. 2 The Court struck down the permit requirement in Hancock, reasoning that without clear congressional authorization, "`the federal function must be left free' of [state] regulation." Id., at 179, quoting Mayo v. United States, supra, at 447. Hancock thus establishes that a federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation. 3 </s> In this case, however, we are not presented with a direct state regulation of the operation of the Portsmouth facility. Rather, the case involves the imposition of a supplemental [486 U.S. 174, 182] award of workers' compensation, chargeable against Goodyear, for an injury caused by Goodyear's failure to comply with a state safety regulation. Appellant and the Solicitor General argue that the application of the Ohio additional award provision is nonetheless tantamount to a regulation of the Portsmouth facility and is thus invalid under the Supremacy Clause. We need not decide this issue, however, for we conclude that even if the provision is sufficiently akin to direct regulation of the Portsmouth facility to be potentially barred by the Supremacy Clause, ch. 822, 49 Stat. 1938, 40 U.S.C. 290, provides the requisite clear congressional authorization for the application of the provision to workers at the Portsmouth facility. </s> Section 290 provides in relevant part: </s> "Whatsoever constituted authority of each of the several States is charged with the enforcement of and requiring compliances with the State workmen's compensation laws of said States and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said States shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any State and to all projects, buildings, constructions, improvements, and property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within whose exterior boundaries such place may be." 4 </s> [486 U.S. 174, 183] </s> Both appellant and the Solicitor General concede that the initial workers' compensation award received by respondent Miller is authorized by 290. They contend, however, that 290 does not authorize the supplemental award provided in Ohio's workers' compensation law when an employer violates a specific state safety regulation. At bottom, appellant and the Solicitor General argue that the phrase "workmen's compensation laws" in 290, which is not defined, was not intended to include the additional-award provision in Ohio's workers' compensation law. Appellant claims that in the absence of a precise definition, we should infer that Congress envisioned the typical workers' compensation Act, under which workers are automatically entitled to certain benefits when they suffer a work-related injury, without regard to the employer's fault. A State's authority to enforce its workers' compensation laws under 290, appellant continues, should be limited to such standard awards. </s> We do not believe appellant's construction of 290 can be squared with the statute's language and history. Section 290 provides that a state authority charged with enforcing "workmen's compensation laws," which in Ohio is the Industrial Commission, "shall have the power and authority to apply such laws" to federal premises "in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State." This language places no express limitation on the type of workers' compensation scheme that is authorized. 5 On its face, 290 compels the same workers' [486 U.S. 174, 184] compensation award for an employee injured at a federally owned facility as the employee would receive if working for a wholly private facility. In addition, at the time of the passage of 290 in 1936, workers' compensation laws provided a wide variety of compensation schemes that do not fit neatly within appellant's view of the "typical" scheme. At least 15 States provided remedies in addition to basic workers' compensation awards when an employee was injured because of specified kinds of employer misconduct. 6 Eight of these States, including Ohio, provided supplemental awards when the employer violated a specific safety regulation. 7 We generally [486 U.S. 174, 185] presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts. See Director, OWCP v. Perini North River Associates, 459 U.S. 297, 319 -320 (1983). In the absence of affirmative evidence in the language or history of the statute, we are unwilling to assume that Congress was ignorant of the substantial number of States providing additional workers' compensation awards when a state safety regulation was violated by the employer. Indeed, Congress appears to have recognized the diversity of workers' compensation schemes when it provided that workers' compensation would be awarded to workers on federal premises "in the same way and to the same extent" as provided by state law. The meaning of "workmen's compensation laws" in 290, of course, is not infinitely elastic. We need not address the outer boundaries of that term in this case, however, because we believe it is clear that Congress intended Ohio's law and others of its ilk, which were solidly entrenched at the time of the enactment of 290, to apply to federal facilities "to the same extent" that they apply to private facilities within the State. </s> The only evidence in the legislative history of 290 that appellant and the Solicitor General muster in support of their position is that Congress rejected a proposal that would have authorized States to apply state safety and insurance laws directly to federal projects. See S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936). But Congress' reluctance to allow direct state regulation of federal projects says little about whether Congress was likewise concerned with the incidental regulatory effects arising from the enforcement of a workers' compensation law, like Ohio's, that provides an additional award when the injury is caused by the breach of a safety regulation. The effects of direct regulation on the operation of federal projects are significantly more intrusive than the incidental regulatory effects of such an additional award provision. Appellant may choose to disregard Ohio safety regulations and simply pay an additional workers' compensation [486 U.S. 174, 186] award if an employee's injury is caused by a safety violation. We believe Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not. 8 Cf. Silkwood v. Kerr-McGee Corp., 464 U.S., at 256 (Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empted). Because the permission of incidental regulation is consistent with the preclusion of direct regulation, the legislative history relied on by appellant and the Solicitor General does not undermine the plain language of 290. We conclude that the additional award provision of Ohio's workers' compensation law is unambiguously authorized by 290 and therefore does not run afoul of the Supremacy Clause. 9 Accordingly, the judgment of the Ohio Supreme Court is affirmed. </s> It is so ordered. </s> JUSTICE KENNEDY took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 The Ohio Supreme Court in this case failed to consider the fundamental distinction between state regulation of private facilities and state regulation of federal facilities. When dealing with state regulation of private facilities, analysis under the Supremacy Clause centers on whether Congress has taken affirmative action to pre-empt the state regulation in question. See Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 712 -713 (1985). On the other hand, because the Supremacy Clause immunizes the activities of the Federal Government from state interference, Mayo v. United States, 319 U.S. 441, 445 (1943), direct state regulation of federal facilities is allowed only to the extent that Congress has clearly authorized such regulation. </s> [Footnote 2 With certain limited exceptions, the DOE, as agent of the United States, is the exclusive owner of all nuclear production facilities. See 42 U.S.C. 2061(a); see also Department of Energy Organization Act, 91 Stat. 577, 42 U.S.C. 715(a) (transferring responsibility to DOE from the Energy Research and Development Administration). The DOE is authorized to contract with private parties to operate its facilities, but these private contractors are subject to the direction and supervision of the DOE. See 42 U.S.C. 2061(b); H. R. Rep. No. 2181, 83d Cong., 2d Sess., 14 (1954) ("In connection with its own production facilities, . . . the Commission is permitted to have the actual operation carried on by other persons under contract to it and under its direction and control"). This federal control over the production of nuclear material is an important aspect of federal nuclear energy policy. See 42 U.S.C. 2013(c). </s> [Footnote 3 Appellees and amici argue that Hancock should be read as applying only to situations in which the state regulation may act to prohibit the operation of the federally owned facility. Although Hancock involved a state regulation requiring an operating permit, the central issue presented was the power of the State to enforce its emissions regulations. See Hancock v. Train, 426 U.S., at 181 . Under the Supremacy Clause, we discern no important difference between the authority to order compliance with state regulations and the authority to require a permit prior to operating a facility. In both settings the State is claiming the authority to dictate the manner in which the federal function is carried out. </s> [Footnote 4 Although the language and history of 290 indicate that it is addressed to federal enclaves, areas over which the United States has assumed exclusive jurisdiction under U.S. Const., Art. I, 8, cl. 17, see S. Rep. No. 2294, 74th Cong., 2d Sess. (1936), both appellant and the Solicitor General concede, and we agree, that it authorizes the application of workers' [486 U.S. 174, 183] compensation laws to federal facilities like the Portsmouth plant that are not federal enclaves. </s> [Footnote 5 There is no doubt that the supplemental award provision is an integral part of the Ohio workers' compensation statute. The provision was enacted in 1923 as an amendment to the existing workers' compensation scheme. The amendment abolished the right to bring an action at law when the employer failed to comply with specific safety requirements and substituted the additional percentage award in the event of such a failure. State ex rel. Bailey v. Krise, 18 Ohio St. 2d 191, 195-197, 249 N. E. 2d 55, 58-59 (1969). </s> [Footnote 6 See 1925 Ariz. Sess. Laws, ch. 83, 65 (option to sue if injury from employer's "wilful misconduct"); 1917 Cal. Stats., ch. 586, 6(b) (50% increase in compensation, not to exceed $2,500, if injury caused by serious and willful misconduct of employer); 1916 Ky. Acts, ch. 33, 3, 29 (option to sue for intentional injury and 15% increase for intentional failure to comply with statute); 1911 Mass. Acts, ch. 751, pt. 2, 3 (100% increase if injury caused by employer's serious and willful misconduct); 1925 Mo. Laws, 3 (15% increase for failure to comply with any statute); 1929 N. M. Laws, ch. 113, 7 (50% increase if employer fails to provide safety devices required by law); 1929 N.C. Sess. Laws, ch. 120, 13 (10% increase for willful failure to comply with any statutory requirement); Ohio Const., Art. 2, 35 (15% to 50% increase for violation of specific safety requirement); 1921 Ore. Laws, ch. 311, 6 (option to sue for intentional injury by employer); 1936 S. C. Acts, No. 610, 13 (10% increase for willful failure to comply with statute); 1917 Tex. Gen. Laws, ch. 103, 5 (option to sue for "willful act or omission" or "gross negligence" of employer); 1921 Utah Laws, ch. 67, 1 (15% increase for willful failure to comply with any statute); 1911 Wash. Laws, ch. 74, 6 (option to sue for intentional injury); 1913 W. Va. Acts, ch. 10, 28 (option to sue for intentional injury); 1915 Wis. Laws, ch. 378, 1(h) (15% increase for violation of statute); see also 2A A. Larson, Law of Workmen's Compensation 69.10 (1987). </s> [Footnote 7 See 1916 Ky. Acts, ch. 33, 29; 1925 Mo. Laws 3; 1929 N. M. Laws, ch. 113, 7; 1929 N.C. Sess. Laws, ch. 120, 13; Ohio Const., Art. II, 35; 1936 S. C. Acts, No. 610, 13; 1921 Utah Laws, ch. 67, 1; 1915 Wis. Laws, ch. 378, 1(h). For the present versions of these laws, see Ky. Rev. Stat. 342.165 (1983); Mo. Rev. Stat. 287.120(4) (1986); N. M. Stat. Ann. 52-1-10(B) (1978); N.C. Gen. Stat. 97-12 (1985); Ohio Const., Art. II, 35; S. C. Code 42-9-70 (1976); Utah Code Ann. 35-1-12 (1953); Wis. Stat. 102.57 (1985-1986). </s> [Footnote 8 Prior to enacting 290, Congress had authorized recovery of damages under state tort law by persons injured or killed on federal enclaves. See ch. 15, 45 Stat. 54, 16 U.S.C. 457. Thus, at the time 290 was enacted, Congress already had evinced a willingness to have state law exert incidental regulatory pressures on federal facilities. </s> [Footnote 9 Appellant also argues that the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. 2011 et seq. (1982 ed. and Supp. IV), and the DOE's health and safety regulations promulgated under the 1954 Act, pre-empt the award of additional compensation based on state health and safety regulations. Nothing in the 1954 Act, however, expresses an intent to repeal 290 as applied to nuclear production facilities, nor can we read the 1954 Act as implicitly repealing 290 because the two are not inconsistent. Section 290 is therefore as effective an authorization to apply state workers' compensation laws after the passage of the 1954 Act as before. </s> JUSTICE WHITE, with whom JUSTICE O'CONNOR joins, dissenting. </s> The Court's seminal decision in McCulloch v. Maryland, 4 Wheat. 316 (1819), establishes the principle that the [486 U.S. 174, 187] States may not exercise their sovereign powers so as to control those instrumentalities of the United States which have been judged necessary and proper to carry into effect federal laws and policies. Although the narrow issue in that case involved only the assertion by the State of Maryland of its power to tax a federal bank, the Court laid down a more general construction of the Supremacy Clause that has proved to be enduring in its force of reason. As the Court stated: "The attempt to use [state sovereign power] on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give." Id., at 430. The contrary principle would be "capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States." Id., at 432. "The result," the Court concluded, "is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." Id., at 436 (emphasis added). </s> Although, again, the narrow issue in McCulloch concerned only the power to tax, which as the Court noted "involves the power to destroy," id., at 431, the passages quoted above demonstrate that the decision was formulated, explicitly, with sufficient breadth to apply to other measures a State might impose that would "retard, impede, burden, or in any manner control" the operations of federal instrumentalities. Id., at 436. And, clearly, the power to regulate also involves "the power to destroy" if the regulatory web is spun too tightly around its object. More commonly, however, the additional and perhaps conflicting regulations imposed by a [486 U.S. 174, 188] State would simply burden the federal instrumentality, interfere with its operations, and frustrate the federal objectives it is designed to achieve. Nonetheless, the law has long been settled that such regulation cannot be imposed on federal instrumentalities by the States, under the Supremacy Clause, unless the Federal Government directly indicates that it finds such impositions to be consistent with the proper pursuit of its powers under federal law. Hancock v. Train, 426 U.S. 167, 178 -179 (1976); Mayo v. United States, 319 U.S. 441, 447 -448 (1943). </s> In this case the State of Ohio seeks to require a federal nuclear facility, which all concede to be the equivalent of any other federal instrumentality, 1 to make a "bonus" money payment to workers who are injured when the injury results from the facility's failure to comply with "any specific [state] requirement for the protection of the lives, health or safety of employees." Ohio Const., Art. II, 35. Although the Court declines to decide whether this provision of state law is tantamount to a regulation of the facility or to some similarly impermissible imposition upon it, ante, at 182, I believe that no other view is tenable on the facts before us. </s> Initially, the proper focus under the Supremacy Clause is not the avowed purpose for which the State adopts a given provision but the actual effect of the provision on the operation of a federal instrumentality and on its ability to achieve the objectives of federal law and policy for which it has been created. Perez v. Campbell, 402 U.S. 637, 651 -652 (1971). The Court has held that even the general framework of state workers' compensation laws may not be applied at places that lie within the exclusive jurisdiction of the Federal Government. Murray v. Gerrick & Co., 291 U.S. 315 (1934). And [486 U.S. 174, 189] yet the provision of Ohio law at issue in this case is much more specific in its application, and in its regulatory effect upon this federal facility, than is the general framework of such laws. The basic feature of the state statutory regimes for the compensation of workers is that the common law governing the relationship between employer and employee, whose doctrines had become so disadvantageous to employees, is replaced by an automatic entitlement of the employee to certain benefits when injured in the course of employment. See 1 A. Larson, Law of Workmen's Compensation 1.10 - 3.40 (1985). Unlike this basic scheme, however, which does not pressure the federal facility to alter its operations in any specific respect to comply with particular state regulations, the Ohio law exposes the facility to a special penalty if it does not comply with "any specific [state] requirement for the protection of the lives, health or safety of employees." Ohio Const., Art. II, 35. The specificity of these requirements is much more intrusive on the management of the federal facility than even a state workers' compensation law that would preserve the employee's right to sue the employer for willful misconduct or for intentional injury, as do the laws of several States. In terms of the regulatory impact on the federal instrumentality, it is one thing for the facility to know that it should manage its operations so as to minimize the risk of injuries to its employees; it is quite another to expose it to money penalties for failing to comply with the whole panoply of specific state regulations that dictate precise rules to govern very detailed aspects of employee health and safety. </s> It is quite obvious that an attempt by the State of Ohio to impose these same kinds of specific regulations on the federal facility, directly, by obliging the facility to satisfy them all or else to suspend operations, would run afoul of the Supremacy Clause. The rule at issue here has a similar effect. Appellees claim that the federal facility violated a provision in the code of safety requirements, which the State of Ohio has [486 U.S. 174, 190] adopted by administrative rule. The provision sets out specific restrictions on mobile work platforms and rolling platforms, and says that "[e]xposed surfaces shall be free from sharp edges, burrs or other projecting parts." Ohio Admin. Code 4121:1-5-03(D)(2) (1987). There are thousands of such requirements in the administrative rules adopted by the Ohio Industrial Commission's Division of Safety and Hygiene, which in their current version run to well over 200 double-columned pages of meticulous prescriptions, illustrated in minute detail with diagrams, graphs, and charts, see Ohio Admin. Code, ch. 4121:1 (1987), and there are countless other specific requirements in the State's other laws and regulations. It will not do to say that the State of Ohio has not attempted to regulate this facility directly, but simply has exposed it to possible money payments for failure to comply with these specific requirements, since such requirements are often enforced by fines rather than by enjoining specific conduct, and in any event the apparent means of enforcing all of these rules is through the workers' compensation awards permitted under state law. </s> Nor does it make sense to say that the State of Ohio is not fining the facility, but is only penalizing it in the form of additional compensation to injured workers. It cannot matter that the extra payment is made only in the event of an actual injury; one might just as well argue that a regulatory fine would not be a burden if it were imposed not every day but only on the less frequent occasions when inspections are held. Even more to the point, if the amount of the money penalty were very large, the direct compulsion that would be brought to bear upon the federal facility to knuckle under and scrutinize its operations for compliance with every jot and title of the state administrative rules is apparent. The case is no different because the amount of the extra "bonus" award in any given instance may be small. In Ohio v. Thomas, 173 U.S. 276 (1899), the contested provision involved nothing [486 U.S. 174, 191] more than whether the person in charge of an eating house at a federal home for disabled veterans was required under state law to put out a small printed sign that would read "oleomargarine sold and used here" when he served oleomargarine to the inmates. The state law was found to be invalid as applied to the federal facility, under the Supremacy Clause, without regard to the plain fact that the contested imposition was such a slight one, for the principle remains the same in such a case. 2 </s> The mechanics of the Ohio provision, as interpreted by the Ohio courts, reinforce both the obvious regulatory effect of this state law and the important differences between such a provision and a basic workers' compensation scheme. First, unlike workers' compensation, which provides an award to every employee who is injured on the job regardless of how the injury occurred, the additional payment here is only available when the facility fails to comply with a state regulatory "requirement." Even the regulatory provisions embodied in federal laws and rules have been held not to activate the extra money penalty afforded by state law. See, e. g., State ex rel. Ish v. Industrial Comm'n, 19 Ohio St. 3d 28, 482 N. E. 2d 941 (1985); State ex rel. Roberts v. Industrial Comm'n, 10 Ohio St. 3d 1, 460 N. E. 2d 251 (1984). Second, the necessity that the state requirement be "specific" in its dictates has been strictly construed. It "does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission." State ex rel. Trydle v. Industrial Comm'n, 32 Ohio St. 2d 257, 291 N. E. 2d 748, [486 U.S. 174, 192] 750 (1972). The question whether a particular safety requirement is sufficiently "specific" to support an extra money penalty has often been litigated in the Ohio courts, and such awards are invalidated unless the claimant is able to demonstrate that the specific requirement "demands that some particular and definite act or thing be done." State ex rel. Holdosh v. Industrial Comm'n, 149 Ohio St. 179, 181-182, 78 N. E. 2d 165, 166 (1948). See also State ex rel. Rae v. Industrial Comm'n, 136 Ohio St. 168, 24 N. E. 2d 594 (1939); Trydle, supra; State ex rel. Jack Conie & Sons Corp. v. Industrial Comm'n, 56 Ohio St. 2d 150, 382 N. E. 2d 1366 (1978). In order to secure the penalty award, the employee must show that the regulatory requirement is "definite" in the sense that it leaves no discretion to the employer - does not make it at all "a matter of his own choosing" - how to comply with the specific requirement. State ex rel. Fast & Co. v. Industrial Comm'n, 176 Ohio St. 199, 201, 198 N. E. 2d 666, 667 (1964). </s> Since this provision of Ohio law exacts a monetary penalty only for failure to comply with state laws and regulations, and indeed only for failure to comply with those state regulations which are so specific that they dictate precisely what steps the employer must take to avoid this increased financial exposure, the principal effect of this provision can only be to induce the employer to adhere to each of the various health and safety regulations that the State has adopted. And therefore the impact of such a provision on a federal instrumentality presents a very different problem, for purposes of analysis under the Supremacy Clause, from that posed by the mere application of a state workers' compensation scheme. </s> The Court today skirts these difficulties and rests its disposition on the view that, no matter how extensive the actual regulatory effect of this state law may be, Congress has sanctioned its application to federal instrumentalities by enacting 40 U.S.C. 290. The Court finds in this statute the "unambiguous" [486 U.S. 174, 193] and "clear congressional mandate" approving such state regulation that we have required in past cases. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954); EPA v. State Water Resources Control Board, 426 U.S. 200, 211 (1976). I disagree. </s> Section 290 authorizes each State to apply its "workmen's compensation laws" to all "property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State." The crux of the matter is whether Congress intended by this provision to open up all federal instrumentalities to the kind of potentially onerous regulation of their operations that is imposed by the Ohio provision for money penalties. I do not believe that in authorizing the States to apply these compensation laws to federal instrumentalities "in the same way and to the same extent" as they apply to other employers, Congress had any purpose to expose federal establishments to coercive financial pressure to comply with a slew of detailed state regulations about how to carry on their operations. Nothing in the statute or its background suggests that Congress had such an intent, and certainly nothing at all suggests that any such position was "clearly" or "unambiguously" approved by Congress. I am unimpressed by the fact that a small fraction of the States permitted such additional awards at the time 290 was passed; if the "clear congressional mandate" approving such state regulations cannot be found in the federal statute itself, then the obscure practices of a few States at the time of enactment will not suffice to create one. Congress need not explicitly disapprove every contrary aspect of the workers' compensation laws of the several States in order to refrain from giving them its "unambiguous" blessing. </s> Section 290 was enacted in response to the Court's decision in Murray v. Gerrick & Co., 291 U.S. 315 (1934), which had held that state workers' compensation laws may not be applied [486 U.S. 174, 194] at all in areas under the exclusive jurisdiction of the Federal Government. The purpose of the bill as stated was simply the humanitarian one of "correcting this situation," in which workers employed on federal projects were deprived of the benefits of coverage purely because of an oddity of location. S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936); H. R. Rep. No. 2656, 74th Cong., 2d Sess., 1 (1936). As the Senate Report explained at greater length: "The purpose of the amended bill is to fill a conspicuous gap in the workmen's compensation field by furnishing protection against death or disability to laborers and mechanics employed by contractors or other persons on Federal property." S. Rep. No. 2294, at 1. </s> That Congress intended nothing more than to provide much-needed coverage to these workers is shown by the single revealing item in the scanty legislative history of the statute. The House version of the bill not only would have extended coverage to these workers, but also would have subjected federal property to state safety and insurance regulations and would have authorized state officers to enter upon federal premises in furtherance of these aims. The Senate struck out these latter provisions at the request of the Executive Branch of the Federal Government, noting expressly that they "would not only produce conflicts of authority between State and Federal officers but would also mark a wide departure from the well-established principle that Federal officers should have complete charge of any regulations pertaining to Federal property." S. Rep. No. 2294, at 2. As no such departure from normal practice was intended by Congress, the Senate version of the bill was enacted. </s> This background to the enactment of 290 shows that Congress did not intend to expose federal instrumentalities to the kind of detailed and mandatory regulation that is provided by the Ohio law at issue in this case. The Court's response on this point is simply to assert that "[t]he effects of direct regulation on the operation of federal projects are significantly [486 U.S. 174, 195] more intrusive than the incidental regulatory effects of such an additional award provision." Ante, at 185. In some instances the Court may be correct that the effects of direct regulation could be more intrusive than a provision for penalty awards, but the question here is not whether these two things are exactly the same, but simply whether the "regulatory effects" of the penalty provision, which as set out above are far from "incidental," are the kinds of effects that Congress did not intend to sanction when it enacted 290. These effects are clearly impermissible under the rationale that the Senate articulated for removing from the bill the two obnoxious provisions that had been included in the House version. And even if I were to conclude that Congress had acted ambiguously on this score, I would at least be forced to conclude that Congress offered no "clear" or "unambiguous" mandate for the kind of specific regulatory compulsion that this Ohio law exerts upon this federal facility. </s> I therefore respectfully dissent. </s> [Footnote 1 The Court recognizes, ante, at 180-181, and I agree, that under our precedents the facility here, which is federally owned but is operated by a private party under contract with the Federal Government, must be treated as a federal instrumentality for the purpose of applying the Supremacy Clause. Hancock v. Train, 426 U.S. 167, 174 , n. 23 (1976). </s> [Footnote 2 If this point is thought to matter, however, it is worth noting that Ohio's penalty scheme allows for larger money payments than does any other State. 2A A. Larson, Law of Workmen's Compensation 69.10 (1987). The penalty award at issue in this case would amount to somewhere between $1,328 and $4,429. Brief for Appellee Miller 3, n. 4. </s> [486 U.S. 174, 196]

United States Supreme Court DEGEN v. UNITED STATES(1996) No. 95-173 Argued: April 22, 1996Decided: June 10, 1996 </s> Petitioner Degen is outside the United States and cannot be extradited to face federal drug charges. When he filed an answer in a related civil action, contesting the Government's attempt to forfeit properties allegedly purchased with proceeds from his drug dealings, the District Court struck his claims and entered summary judgment against him, holding that he was not entitled to be heard in the forfeiture action because he remained outside the country, unamenable to criminal prosecution. The court's final order vested title to the properties in the United States, and the Court of Appeals affirmed. </s> Held: </s> A district court may not strike a claimant's filings in a forfeiture suit and grant summary judgment against him for failing to appear in a related criminal prosecution. Pp. 2-8. </s> (a) The Government contends that the District Court's inherent powers authorized it to strike Degen's claims under what has been labeled the "fugitive disentitlement doctrine." Principles of deference counsel restraint in resorting to the courts' inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities, see, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44 , and require its use to be a reasonable response to the problems and needs provoking it, Ortega-Rodriguez v. United States, 507 U.S. 234, 244 . Pp. 3-5. </s> (b) No necessity justifies disentitlement here. Since the court's jurisdiction over the property is secure despite Degen's absence, there is no risk of delay or frustration in determining the merits of the Government's forfeiture claims or in enforcing the resulting judgment. The court has alternatives, other than the harsh sanction of disentitlement, to keep Degen from using liberal civil discovery rules to gain an improper advantage in the criminal prosecution, where discovery is more limited. Disentitlement also is too arbitrary a means of redressing the indignity visited upon the court by Degen's absence from the criminal proceedings and deterring flight from criminal prosecution by Degen and others. A court's dignity derives from the respect accorded its judgments. That respect is eroded, not enhanced, by excessive recourse to rules foreclosing consideration of claims on the merits. Pp. 5-8. 47 F. 3d 1511, reversed and remanded. </s> Kennedy, J., delivered the opinion for a unanimous Court. </s> NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. </s> [End of Syllabus] </s> U.S. Supreme Court </s> No. 95-173 BRIAN J. DEGEN, PETITIONER v. UNITED STATES </s> On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. [June 10,1996] </s> Justice Kennedy delivered the opinion of the Court. In this case we consider whether a United States District Court may strike the filings of a claimant in a forfeiture suit and grant summary judgment against him for failing to appear in a related criminal prosecution. The Court of Appeals for the Ninth Circuit held this to be a proper exercise of the District Court's inherent authority. We reverse. </s> A federal grand jury in Nevada indicted Brian Degen for distributing marijuana, laundering money, and related crimes. On the same day in 1989 that it unsealed the indictment, the United States District Court for the District of Nevada also unsealed a civil forfeiture complaint. The Government sought to forfeit properties in California, Nevada, and Hawaii, allegedly worth $5.5 million and purchased with proceeds of Degen's drug sales or used to facilitate the sales. 84 Stat. 1276, as amended, 21 U. S. C. Section(s) 881(a)(6)-(a)(7). An affidavit by an agent of the Drug Enforcement Agency accompanied the complaint and recounted instances of Degen's alleged drug smuggling during the previous 20 years. </s> Degen is a citizen of the United States and of Switzerland, his father having been born there. Degen moved to Switzerland with his family in 1988. He has not returned to face the criminal charges against him, and we are advised that Switzerland's extradition treaty with the United States does not oblige either country to turn its nationals over to the other. While remaining outside this country, however, Degen did file an answer in the civil action to contest the forfeiture. Among other things, he contended the Government's claims were barred by the statute of limitations, 46 Stat. 758, as amended, 19 U. S. C. Section(s) 1621, and based on an unlawful retroactive application of the forfeiture laws. </s> The District Court in the forfeiture case did not consider any of these arguments. Instead it granted the Government's motion to strike Degen's claims and entered summary judgment against him. The court held Degen was not entitled to be heard in the civil forfeiture action because he remained outside the country, unamenable to criminal prosecution. United States v. Real Property Located at Incline Village, 755 F. Supp. 308 (1990). After another two years consumed by procedural matters (for the most part involving attempts by Degen's wife to contest the forfeiture), the District Court entered a final order vesting title to the properties in the United States. The Court of Appeals for the Ninth Circuit affirmed. United States v. Real Property Located at Incline Village, 47 F. 3d 1511 (1995). </s> In an ordinary case a citizen has a right to a hearing to contest the forfeiture of his property, a right secured by the Due Process Clause, United States v. James Daniel Good Real Property, 510 U.S. 43, 48 -62 (1993); Fuentes v. Shevin, 407 U.S. 67, 80 (1972); McVeigh v. United States, 11 Wall. 259, 266-267 (1871), and implemented by federal rule, Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims. Nonetheless, the Government argues, the District Court's inherent powers authorized it to strike Degen's claims under what some courts have labeled the "fugitive disentitlement doctrine." We have sustained, to be sure, the authority of an appellate court to dismiss an appeal or writ in a criminal matter when the party seeking relief becomes a fugitive. Ortega-Rodriguez v. United States, 507 U.S. 234, 239 (1993); Smith v. United States, 94 U. S. 97 (1876). The question before us is whether the doctrine should be extended to allow a court in a civil forfeiture suit to enter judgment against a claimant because he is a fugitive from, or otherwise is resisting, a related criminal prosecution. The Courts of Appeals to consider the question have come to different conclusions (compare the decision here and in United States v. Eng, 951 F. 2d 461 (CA2 1991), with United States v. $40,877.59 in United States Currency, 32 F. 3d 1151 (CA7 1994), and United States v. $83,320 in United States Currency, 682 F. 2d 573 (CA6 1982)), precipitating our grant of certiorari in this case. </s> Courts invested with the judicial power of the United States have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities. Chambers v. NASCO, Inc., 501 U.S. 32, 43 -46 (1991); Link v. Wabash R. Co., 370 U.S. 626, 630 -631 (1962); United States v. Hudson, 7 Cranch 32, 34 (1812). The extent of these powers must be delimited with care, for there is a danger of overreaching when one branch of the Government, without benefit of cooperation or correction from the others, undertakes to define its own authority. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). In many instances the inherent powers of the courts may be controlled or overridden by statute or rule. Carlisle v. United States, 517 U. S. ___, ___ (1996) (slip op., at 10); Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). Principles of deference counsel restraint in resorting to inherent power, Chambers v. NASCO, supra, at 44, and require its use to be a reasonable response to the problems and needs that provoke it, Ortega-Rodriguez v. United States, supra, at 244; Thomas v. Arn, 474 U.S. 140, 146 -148 (1985). </s> In accord with these principles, we have held federal courts do have authority to dismiss an appeal or writ of certiorari if the party seeking relief is a fugitive while the matter is pending. Several reasons have been given for the rule. First, so long as the party cannot be found, the judgment on review may be impossible to enforce. This was the rationale of the first case to acknowledge the doctrine, Smith v. United States, supra, at 97: "It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render." See also Bohanan v. Nebraska, 125 U. S. 692 (1887); Eisler v. United States, 338 U.S. 189 (1949). Second, we have said an appellant's escape "disentitles" him "to call upon the resources of the Court for determination of his claims." Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per curiam). The cases cited so far involved the dismissal of fugitives' petitions in this Court. In reviewing similar practices in state courts for conformity with the Due Process Clause, we have noted further reasons for them: disentitlement "discourages the felony of escape and encourages voluntary surrenders," and "promotes the efficient, dignified operation" of the courts. Estelle v. Dorrough, 420 U.S. 534, 537 (1975) (per curiam) (using those reasons to justify refusing to reinstate an appeal even once an escaped appellant is recaptured). See also Allen v. Georgia, 166 U. S. 138 (1897). </s> Against this backdrop came our decision four Terms ago in Ortega-Rodriguez. The defendant had escaped from federal custody after conviction but before sentencing. He was sentenced in absentia, but later was recaptured and resentenced; he then filed an appeal, which was dismissed on the authority of Smith v. United States, supra, and the other disentitlement cases just described. We reversed, holding those precedents did not justify dismissal of an appeal by a fugitive recaptured before the appeal was filed. We noted the judgment of the court of appeals would be enforceable against the appellant, and that his earlier absence, when no appeal was pending, did not threaten the dignity of the court imposing the sanction. Ortega-Rodriguez v. United States, 507 U.S., at 244 -246. We did not rule out the possibility of appellate disentitlement where necessary to prevent actual prejudice to the Government from a fugitive's extended absence, id., at 249, but we concluded the sanction of disentitlement was unjustified as a sanction applicable to all cases where an escape once had occurred, id., at 249-251. We conduct a similar examination of the disentitlement imposed here, and find it likewise unjustified. </s> There is no risk in this case of delay or frustration in determining the merits of the Government's forfeiture claims or in enforcing the resulting judgment. The Government has shown probable cause to forfeit the property, and Degen must refute the showing or suffer its loss. Since the court's jurisdiction over the property is secure despite Degen's absence, there is no danger the court in the forfeiture suit will waste its time rendering a judgment unenforceable in practice. </s> The Government is on stronger ground in suggesting the criminal prosecution against Degen might be compromised by his participation in the forfeiture case. The problem stems from the differences between the discovery privileges available to Degen in each case. See Afro-Lecon, Inc. v. United States, 820 F. 2d 1198, 1203-1204 (CA Fed. 1987); Campbell v. Eastland, 307 F. 2d 478, 487 (CA5 1962). A criminal defendant is entitled to rather limited discovery, with no general right to obtain the statements of the Government's witnesses before they have testified. Fed. Rules Crim. Proc. 16(a)(2), 26.2. In a civil case, by contrast, a party is entitled as a general matter to discovery of any information sought if it appears "reasonably calculated to lead to the discovery of admissible evidence." Fed. Rule Civ. Proc. 26(b)(1). The Government contends Degen might use the rules of civil discovery in the forfeiture suit to gain an improper advantage in the criminal matter, prying into the prosecution's case in a manner not otherwise permitted. </s> These problems are not uncommon when criminal and civil forfeiture suits are pending at the same time, but they are made acute by Degen's absence. If he were in federal custody, the risk of compromising the criminal case could be avoided by staying the civil suit until the prosecution is over. 21 U. S. C. Section(s) 881(i). Cf. United States v. Kordel, 397 U.S. 1, 9 (1970). Degen rendered this solution impractical by frustrating the prosecution of the criminal case against him. The criminal trial cannot begin until he returns, Crosby v. United States, 506 U.S. 255 (1993); if the civil matter were subordinated to the criminal, the forfeiture could be held in abeyance for an indefinite time. This delay would be prejudicial to the Government, for if its forfeiture claims are good, its right to the properties is immediate. We nonetheless are satisfied the District Court has the means to resolve these dilemmas without resorting to a rule forbidding all participation by the absent claimant. </s> First, the District Court has its usual authority to manage discovery in a civil suit, including the power to enter protective orders limiting discovery as the interests of justice require. Fed. sustained protective orders to prevent parties from using civil discovery to evade restrictions on discovery in criminal cases. See, e.g., In re Ramu Corp., 903 F. 2d 312, 316-317, 320-321 (CA5 1990); United States v. Stewart, 872 F. 2d 957, 962-963 (CA10 1989); Campbell v. Eastland, supra, at 487. See also Capital Engineering & Mfg. Co., Inc. v. Weinberger, 695 F. Supp. 36, 41-42 (DDC 1988); Founding Church of Scientology v. Kelley, 77 F. R. D. 378, 380-381 (DDC 1977). </s> Second, the court can exercise its discretion to manage the civil litigation to avoid interference with the criminal case. If, for instance, the Government were unable to rebut Degen's arguments except by revealing confidential details of the criminal investigation, the court could consider controlling or limiting the form of proof, or in an extreme case even the theories it permits the absent party to pursue, to prevent him from exploiting the asymmetries he creates by participating in one suit but not the other. </s> Third, of course, Degen's absence entitles him to no advantage. If his unwillingness to appear in person results in non-compliance with a legitimate order of the court respecting pleading, discovery, the presentation of evidence, or other matters, he will be exposed to the same sanctions as any other uncooperative party. A federal court has at its disposal an array of means to enforce its orders, including dismissal in an appropriate case. Again, its powers include those furnished by federal rule, see, e.g., Fed. Rules Civ. Proc. 37, 41(b); National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) (per curiam); Societe Internationale pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 212 (1958); cf. United States v. Pole No. 3172, 852 F. 2d 636, 641-642 (CA1 1988), and by inherent authority, see, e. g., Chambers v. NASCO, Inc., 501 U.S., at 44 -45; Link v. Wabash R. Co., 370 U.S., at 630 -633; Woodson v. Surgitek, Inc., 57 F. 3d 1406, 1416-1417 (CA5 1995); Zebrowski v. Hanna, 973 F. 2d 1001, 1006 (CA1 1992) (Breyer, C. J.). </s> The details of these steps are committed to the discretion of the district court; it would be premature to consider now the precise measures the court should adopt as the case proceeds. The existence of these alternative means of protecting the Government's interests, however, shows the lack of necessity for the harsh sanction of absolute disentitlement. Consideration of some of Degen's defenses, such as the statute of limitations, appears to require little discovery. If they have merit, the Government should not prevail; if they are groundless, the Government's interests will not be compromised by their consideration. </s> We have yet to consider two other purposes said to be advanced by disentitlement: The need to redress the indignity visited upon the District Court by Degen's absence from the criminal proceeding, and the need to deter flight from criminal prosecution by Degen and others. Both interests are substantial, but disentitlement is too blunt an instrument for advancing them. Without resolving whether Degen is a fugitive in all the senses of the word debated by the parties, we acknowledge disquiet at the spectacle of a criminal defendant reposing in Switzerland, beyond the reach of our criminal courts, while at the same time mailing papers to the court in a related civil action and expecting them to be honored. Cf. United States v. Sharpe, 470 U.S. 675, 681 -682, n. 2 (1985). A court-made rule striking Degen's claims and entering summary judgment against him as a sanction, however, would be an arbitrary response to the conduct it is supposed to redress or discourage. </s> The right of a citizen to defend his property against attack in a court is corollary to the plaintiff's right to sue there. McVeigh v. United States, 11 Wall., at 267. For this reason we have held it unconstitutional to use disentitlement similar to this as punishment for rebellion against the United States, ibid., or, in at least one instance, for contempt of court, Hovey v. Elliott, 167 U. S. 409, 413-414 (1897). We need not, and do not, intimate a view on whether enforcement of a disentitlement rule under proper authority would violate due process, cf. Blackmer v. United States, 284 U. S. 421 (1932). It remains the case, however, that the sanction of disentitlement is most severe and so could disserve the dignitary purposes for which it is invoked. The dignity of a court derives from the respect accorded its judgments. That respect is eroded, not enhanced, by too free a recourse to rules foreclosing consideration of claims on the merits. </s> There would be a measure of rough justice in saying Degen must take the bitter with the sweet, and participate in the District Court either for all purposes or none. But the justice would be too rough. A court's inherent power is limited by the necessity giving rise to its exercise. There was no necessity to justify the rule of disentitlement in this case; to strike Degen's filings and grant judgment against him would be an excessive response to the concerns here advanced. </s> The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered.

United States Supreme Court UNITED STATES v. TWIN CITY POWER CO.(1956) No. 21 Argued: October 18, 1955Decided: January 23, 1956 </s> In a suit brought by the United States for the condemnation of private land adjoining a navigable river as part of a project for the improvement of the Savannah River basin, the just compensation which the Fifth Amendment requires to be paid does not include the value of the water power in the flow of the stream. Pp. 223-228. </s> (a) A federal court may not substitute its judgment for a congressional determination that the taking is for the improvement or protection of navigation. P. 224. </s> (b) If the interests of navigation are served, it is constitutionally irrelevant that other purposes also may be advanced. P. 224. </s> (c) The interest of the United States in the flow of a navigable stream derives from the Commerce Clause and can be asserted to the exclusion of any competing or conflicting interest. Pp. 224-225. </s> (d) The fact that the land does not lie in the bed of the river nor below high water, but above and beyond the ordinary highwater mark, does not entitle the owner to compensation based on a value in the flow of the stream. Pp. 225-226. </s> (e) United States v. Gerlach Live Stock Co., 339 U.S. 725 , Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239 , and United States v. Kansas City Life Ins. Co., 339 U.S. 799 , distinguished. United States v. Chandler-Dunbar Co., 229 U.S. 53 , followed. Pp. 225-228. </s> (f) The fact that the private owners had interests in the water that were recognized by state law does not entitle them to compensation for such value. Pp. 227-228. </s> (g) Under the Fifth Amendment, only loss to the owner, not gain to the taker, is compensable. P. 228. </s> (h) To require the United States to pay for this water-power value would be to create private claims in the public domain. P. 228. </s> 215 F.2d 592, reversed. [350 U.S. 222, 223] </s> Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Morton and Roger P. Marquis. </s> David W. Robinson argued the cause for respondents. With him on the brief were James F. Dreher and R. Hoke Robinson. </s> MR. JUSTICE DOUGLAS delivered the opinion of the Court. </s> This is a suit for condemnation of land instituted by the United States against respondent power company. A single question of valuation is presented. It is whether the just compensation which the United States must pay by force of the Fifth Amendment includes the value of the land as a site for hydroelectric power operations. The Fourth Circuit Court of Appeals held that it does. 215 F.2d 592. The Court of Appeals for the Fifth Circuit reached the same result in litigation involving other lands in the same hydroelectric project. United States v. Twin City Power Co., 221 F.2d 299. We granted the petition for certiorari in the former case because of the importance of the issue presented. 348 U.S. 910 . </s> The condemnation proceedings are part of the procedure for completion of the Clark Hill project on the Savannah River, a navigable stream in southeastern United States. The Clark Hill project is the first in a series of steps recommended by the Chief of Army Engineers for the improvement of the basin of that river. H. R. Doc. No. 657, 78th Cong., 2d Sess. That Report conceives of the Clark Hill project as serving multiple purposes - hydroelectric, flood control, and navigation. It states that the Clark Hill project, "if suitably constructed and operated primarily for hydroelectric-power development, would incidentally reduce downstream flood damages and improve low-water flows for navigation." Id., [350 U.S. 222, 224] p. 3. Congress approved this project as part of "the comprehensive development of the Savannah River Basin for flood control and other purposes." Section 10 of the Flood Control Act of 1944, 58 Stat. 887. And see United States ex rel. Chapman v. Federal Power Commission, 345 U.S. 153, 170 . </s> The Court of Appeals concluded that the improvement of navigation was not the purpose of the taking but that the Clark Hill project was designed to serve flood control and water-power development. 215 F.2d, at 597. It is not for courts, however, to substitute their judgments for congressional decisions on what is or is not necessary for the improvement or protection of navigation. See Arizona v. California, 283 U.S. 423, 455 -457. The role of the judiciary in reviewing the legislative judgment is a narrow one in any case. See Berman v. Parker, 348 U.S. 26, 32 ; United States ex rel. TVA v. Welch, 327 U.S. 546, 552 . The decision of Congress that this project will serve the interests of navigation involves engineering and policy considerations for Congress and Congress alone to evaluate. Courts should respect that decision until and unless it is shown "to involve an impossibility," as Mr. Justice Holmes expressed it in Old Dominion Co. v. United States, 269 U.S. 55, 66 . If the interests of navigation are served, it is constitutionally irrelevant that other purposes may also be advanced. United States v. Appalachian Power Co., 311 U.S. 377, 426 ; Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508, 525 , 533-534. As we said in the Appalachian Power Co. case, "Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control." 311 U.S., at 426 . </s> The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the [350 U.S. 222, 225] exclusion of any competing or conflicting one. The power is a privilege which we have called "a dominant servitude" (see United States v. Commodore Park, Inc., 324 U.S. 386, 391 ; Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 ) or "a superior navigation easement." United States v. Gerlach Live Stock Co., 339 U.S. 725, 736 . The legislative history and construction of particular enactments may lead to the conclusion that Congress exercised less than its constitutional power, fell short of appropriating the flow of the river to the public domain, and provided that private rights existing under state law should be compensable or otherwise recognized. Such were United States v. Gerlach Live Stock Co., supra, and Federal Power Commission v. Niagara Mohawk Power Corp., supra. We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river for the declared public purpose. </s> We can also put aside such cases as United States v. Kansas City Life Ins. Co., 339 U.S. 799 , where assertion of the dominant servitude in the navigable river injured property beyond the bed of the stream. Here we are dealing with the stream itself, for it is in the water power that respondents have been granted a compensable interest. </s> It is argued, however, that the special water-rights value should be awarded the owners of this land since it lies not in the bed of the river nor below high water but above and beyond the ordinary high-water mark. An effort is made by this argument to establish that this private land is not burdened with the Government's servitude. The flaw in that reasoning is that the landowner here seeks a value in the flow of the stream, a value that inheres in the Government's servitude and one that under our decisions the Government can grant or withhold as it chooses. It is no answer to say that payment is [350 U.S. 222, 226] sought only for the location value of the fast lands. That special location value is due to the flow of the stream; and if the United States were required to pay the judgments below, it would be compensating the landowner for the increment of value added to the fast lands if the flow of the stream were taken into account. </s> That is illustrated by United States v. Chandler-Dunbar Co., 229 U.S. 53 , the case that controls this one. In that case a private company installed a power project in St. Mary's River under a permit from the Government, revocable at will. The permit was revoked, Congress appropriating the entire flow of the stream for navigation purposes. The Court unanimously held that the riparian owner had no compensable interest in the water power of which it had been deprived. Mr. Justice Lurton, speaking for the Court, said, "Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable." Id., at 69. The Court accordingly reversed a judgment that awarded the riparian owner what respondents have obtained in this case, viz., "the present money value of the rapids and falls to the Chandler-Dunbar Company as riparian owners of the shore and appurtenant submerged land." Id., at 74. The Court said, "The Government had dominion over the water power of the rapids and falls and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use." * Id., at 76. Some of the land owned by the private [350 U.S. 222, 227] company was in the bed of the stream, some above ordinary high water. But the location of the land was not determinative. It was the dominion of the Government over the water power that controlled the decision. Both in Chandler-Dunbar and in this case it is the water power that creates the special value, whether the lands are above or below ordinary high water. The holding in Chandler-Dunbar led us to say in United States v. Appalachian Power Co., supra, at 424, that the "exclusion of riparian owners" from the benefits of the power in a navigable stream "without compensation is entirely within the Government's discretion." And again, "If the Government were now to build the dam, it would have to pay the fair value, judicially determined, for the fast land; nothing for the water power." Id., at 427. </s> The power company in the present case is certainly in no stronger position than the owner of the hydroelectric site in the Chandler-Dunbar case. While the latter was deprived of a going private power project by the Government, the present private owners never had a power project on the Savannah and as a result of the Government's pre-emption never can have one. </s> It is no answer to say that these private owners had interests in the water that were recognized by state law. We deal here with the federal domain, an area which Congress can completely pre-empt, leaving no vested private claims that constitute "private property" within the meaning of the Fifth Amendment. Location of the lands might under some circumstances give them special value, [350 U.S. 222, 228] as our cases have illustrated. But to attach a value of water power of the Savannah River due to location and to enforce that value against the United States would go contra to the teaching of Chandler-Dunbar - "that the running water in a great navigable stream is capable of private ownership is inconceivable." 229 U.S., at 69 . </s> The holding of the Chandler-Dunbar case that water power in a navigable stream is not by force of the Fifth Amendment a compensable interest when the United States asserts its easement of navigation is in harmony with another rule of law expressed in United States v. Miller, 317 U.S. 369, 375 . </s> "Since the owner is to receive no more than indemnity for his loss, his award cannot be enhanced by any gain to the taker. Thus, although the market value of the property is to be fixed with due consideration of all its available uses, its special value to the condemnor as distinguished from others who may or may not possess the power to condemn, must be excluded as an element of market value." </s> The Court in the Chandler-Dunbar case emphasized that it was only loss to the owner, not gain to the taker, that is compensable. 229 U.S., at 76 . If the owner of the fast lands can demand water-power value as part of his compensation, he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. The right has value or is an empty one dependent solely on the Government. What the Government can grant or withhold and exploit for its own benefit has a value that is peculiar to it and that no other user enjoys. Cf. U.S. ex rel. T. V. A. v. Powelson, 319 U.S. 266, 273 et seq. To require the United States to pay for this water-power value would be to create private claims in the public domain. </s> Reversed. </s> [Footnote * In the Chandler-Dunbar case, an award of compensation was made for the value of the land for a lock and canal, passing "around the falls and rapids." United States v. Chandler-Dunbar Co., 229 U.S., at 67 , 76-78. It may be that the Court was influenced by the fact that, on the special facts of the case, the use of the land for canals and [350 U.S. 222, 227] locks was wholly consistent with the dominant navigation servitude of the United States and indeed aided navigation. Whatever may be said for that phase of the case, it affords no support for respondent, since water-power value, held to be compensable by the Court of Appeals, was ruled to be noncompensable in the Chandler-Dunbar case. [350 U.S. 222, 229] </s> MR. JUSTICE BURTON, with whom MR. JUSTICE FRANKFURTER, MR. JUSTICE MINTON, and MR. JUSTICE HARLAN join, dissenting. </s> The issue here is the determination of the compensation which, under the Fifth Amendment, must be paid for privately owned fast land adjoining a navigable stream when such land is taken by the United States for a public use. For the reasons hereafter stated, I agree with the courts below that the proper measure of such compensation is the fair market value of the land at the time it is taken, and that this includes recognition of any fair market value of the land that is due to its riparian character. </s> This issue has confronted the United States ever since it proposed to construct a multipurpose dam across the Savannah River, and found it necessary to acquire privately owned land on which to locate its Clark Hill dam, plant and reservoir. Part of the needed land lay in South Carolina on the north bank of the river and the remainder on its south bank in Georgia. Of the 70,000 or more acres thus required, about 4,700, at the heart of the project, are the ones before us. Those in South Carolina are owned by the Twin City Power Company, a South Carolina corporation. Those in Georgia are owned by the Twin City Power Company of Georgia, a Georgia corporation. The latter is a wholly owned subsidiary of the former and the two will be referred to as Twin City. </s> In 1947, the United States, in seven proceedings, but under a single program, took possession of the 4,700 acres. It filed four actions in the United States District Court for the Western District of South Carolina, and three in the corresponding court for the Southern District of Georgia. Each sought to condemn the title to some of the property taken and to fix the compensation to be paid for it. </s> Because of the necessity for proceeding in two jurisdictions, the compensation issue has been passed upon by [350 U.S. 222, 230] two District Courts and two Courts of Appeals, as well as by three Commissioners appointed jointly by the District Courts to recommend the compensation to be paid. All of the opinions rendered have held that the fair market value of the land taken should include recognition of the value of its location, availability and exceptional suitability for use as a dam site, plant site or reservoir basin incidental to a water-power development. By doing so, they have expressly declined to limit their estimates of the fair market value of the Twin City land merely to its market value for agricultural purposes and the supplying of timber as contended by the Government. 1 </s> For over 50 years, the land in question has been the subject of frequent consideration and negotiation in connection with the proposed construction of some dam to raise the level of the Savannah River from 60 to 100 feet in that vicinity. Twin City was organized for the development of a hydroelectric plant in this area and began acquiring this property for that purpose in 1901. By 1911, it owned practically all of the land necessary for an integrated site for a hydroelectric power project with a [350 U.S. 222, 231] 60-foot head at Price's Island. 2 Under six Acts of Congress, passed between 1901 and 1919, Twin City was authorized to build power dams in the Savannah River at Price's Island utilizing the land involved here. The Secretary of War and the Chief of Engineers of the United States approved those plans. The land before us included an excellent dam site where the river narrowed to 900 feet. At appropriate points, the land included sound foundation rock and much clay suitable for earth dam purposes. The stream flow at Price's Island exceeded that of most hydro developments in North Carolina, South Carolina or Georgia. At all material times, there has been an ample and growing market for the electrical energy to be produced. The area contained substantially no improvements requiring removal and was suited for a reservoir basin extending 11 or more miles up the river. </s> In 1925, the Federal Power Commission granted Twin City a preliminary permit for a development at Price's Island involving a dam with a 60-foot head of water. In 1926, the Southeastern Power & Light Company negotiated with Twin City for the purchase of its land. Shortly thereafter, the Savannah River Electric Company intervened and obtained a license from the Commission to construct a 90-foot dam for a hydroelectric development which would have absorbed the land now before us. The Savannah River Electric Company also instituted, but later abandoned, proceedings to condemn the Twin City [350 U.S. 222, 232] property. After World War II, the Savannah River Electric Company applied to the Commission for a permit to construct a dam for the development of water power at a point almost identical with the Clark Hill site. That proposal called for occupation of the Twin City land and negotiations for its purchase were renewed. By then, however, the United States had made plans for its own comprehensive improvement of the Savannah River for flood control, navigation and power purposes. In 1944, Congress had authorized the Clark Hill project. 58 Stat. 894. In 1947, the efforts of the Savannah River Electric Company came to an end with its unsuccessful petition for a federal license. 3 In that year, the Government took possession of the land for its present Clark Hill project, calling for a 130-foot dam about six miles below Price's Island and for the complete absorption of the Twin City land. </s> Included in the 4,707.65 acres to be evaluated are 4,519.15 acres owned in fee, and 188.50 over which Twin City merely has flowage rights. 4 The latter are significant because a market for flowage rights is a recognition of a special value of the land for that use. </s> There is no need to discuss here the question whether the Clark Hill project, as authorized by Congress, is primarily in the interest of navigation, rather than of flood control or power development, for, in any event, the United States has the power of eminent domain. By [350 U.S. 222, 233] payment of just compensation, it may acquire whatever private property may be necessary and appropriate for the project, including the Twin City fast land and flowage rights. </s> There also is no need to discuss the traditional servitude, generally referred to as the navigation servitude, which the United States enjoys within the banks and bed of the Savannah River. All of the Twin City land and flowage rights involved are located above and beyond the ordinary high-water mark of the river. It is conceded that the United States has a right to exercise its navigation servitude without payment of compensation within the limits of the servitude. There is no claim made here for payment for any value in the flow of the stream, for any part of the bed of the river or for any land below the ordinary high-water mark of the river. 5 </s> "It is not the broad constitutional power to regulate commerce, but rather the servitude derived from that power and narrower in scope, that frees the Government from liability in these cases [United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592 , and United States v. Willow River Power Co., 324 U.S. 499. When the Government exercises this servitude, it is exercising its paramount power [350 U.S. 222, 234] in the interest of navigation, rather than taking the private property of anyone. The owner's use of property riparian to a navigable stream long has been limited by the right of the public to use the stream in the interest of navigation. See Gould on Waters, c. IV, 86-90 (1883); I Farnham, Waters and Water Rights, c. III, 29 (1904). This has applied to the stream and to the land submerged by the stream. There thus has been ample notice over the years that such property is subject to a dominant public interest. This right of the public has crystallized in terms of a servitude over the bed of the stream. The relevance of the high-water level of the navigable stream is that it marks its bed. Accordingly, it is consistent with the history and reason of the rule to deny compensation where the claimant's private title is burdened with this servitude but to award compensation where his title is not so burdened." United States v. Kansas City Ins. Co., 339 U.S. 799, 808 . 6 </s> Similarly, there is no controversy here between the United States, any State, or private landowner as to the paramount right of the United States to take possession of the land in question for the purposes stated. Unlike the situation in Federal Power Commission v. Niagara Mohawk Corp., 347 U.S. 239 , there are no vested water rights claimed here under state law. Twin City does not contest the right of the United States to develop the [350 U.S. 222, 235] power resources of the river. It asks only that, to the extent that the United States takes private fast land for public use, it shall pay its fair market value, including its fair market value for riparian uses. </s> ". . . The statement in that opinion (p. 326) [Monongahela Navigation Co. v. United States, 148 U.S. 312 that `no private property shall be appropriated to public uses unless a full and exact equivalent for it be returned to the owner' aptly expresses the scope of the constitutional safeguard against the uncompensated taking or use of private property for public purposes. Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 399 . </s> "That equivalent is the market value of the property at the time of the taking contemporaneously paid in money. . . . </s> "Just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined. The sum required to be paid the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. Boom Co. v. Patterson, 98 U.S. 403, 408 . Clark's Ferry Bridge Co. v. Public Service Comm'n, 291 U.S. 227 . 2 Lewis, Eminent Domain, 3d ed., 707, p. 1233. 1 Nichols, Eminent Domain, 2d ed., 220, p. 671. The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the [350 U.S. 222, 236] possibility of combination is reasonably sufficient to affect market value." 7 Olson v. United States, 292 U.S. 246, 254 -256. </s> In the instant case, the Commissioners, the District Courts and the Court of Appeals have applied the above rule. The Commissioners considered all elements of value which they could ascertain with reasonable accuracy, provided those elements were sufficiently assured to be reflected in the fair market value of the premises. 8 </s> [350 U.S. 222, 237] In confirming the report of the Commissioners, the District Court said: </s> "Since the award to Twin City of $1,257,033.20 is not the value of its property for any particular purpose but represents its fair market value after considering all of the reasonable uses of the property which were not too remote or speculative, this amount is the `just compensation' required by the Fifth Amendment and the applicable statutes. . . . This is the amount that in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy." 114 F. Supp., at 725. </s> The potential use of this land for dam, plant and reservoir purposes is far from speculative in the light of the 50 years of recognition of its availability and suitability for those purposes. The land was accumulated by Twin City for this very purpose and it is now flooded as part of the Clark Hill project. The steam-plant comparison computations made by the Commissioners are substantially uncontroverted. If a purchase price had been sought by negotiation in 1947, it is inevitable that a primary consideration would have been the value of the flowage rights and of the dam and plant locations in relation to water-power development. We cannot realistically imagine that such a negotiation would have been limited to a consideration of the land's timber and its minor value for agricultural uses. 9 </s> [350 U.S. 222, 238] </s> The value recommended by the Commissioners and approved by the courts below includes nothing for strategic or "hold-up" value. It reflects no inflation due to the "taking" of the property by the Government and no deflation due to the absence of other bidders after the Government announced that it would take the property. There was nothing condemned or valued that could be described as "in the flow of the stream." Only the fast land, was taken and valued. It is because of that land's location near, but apart from, the flow of the stream that an additional fair market value, long recognized in this land, was recommended and approved below. The location of land is always a factor, and often a primary factor, in determining its market value. Every public utility exercising the right of eminent domain is required to pay it. </s> Before passage of the Water Power Act, the paramount, but unexercised, right of the Government to control the water power in the Savannah River did not exclude the development of that river under state control. The Water Power Act imposed additional conditions and provided for federal licensing. See Federal Power Commission v. Niagara Mohawk Corp., 347 U.S. 239 , and Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359 . But, even though a federal license then became generally necessary, a substantial market for the fast land still existed, because of its importance to any licensee. Up to the time of its "taking" of the property, the Government was but one of several prospective purchasers. </s> After the Federal Government announced that it would, itself, develop and use the water power, it still had to acquire fast land for its dam and plant site and for its reservoir basin. Although its taking of the property cut off further competitive bids for the land, the Government had the same constitutional obligation to [350 U.S. 222, 239] pay "just compensation" for whatever private property it took. </s> A classic comment upon a comparable situation was made by this Court when the Federal Government, after condemning a lock and dam, sought to pay only for the tangible property taken, without recognizing the established value of a franchise issued by a State to exact tolls for the use of the canal and lock. In requiring recognition of the latter value, the Court said: </s> "And here it may be noticed that, after taking this property, the government will have the right to exact the same tolls the Navigation Company has been receiving. It would seem strange that if by asserting its right to take the property, the government could strip it largely of its value, destroying all that value which comes from the receipt of tolls, and, having taken the property at this reduced valuation, immediately possess and enjoy all the profits from the collection of the same tolls. In other words, by the contention this element of value exists before and after the taking, and disappears only during the very moment and process of taking. Surely, reasoning which leads to such a result must have some vice, at least the vice of injustice." Monongahela Navigation Co. v. United States, 148 U.S. 312, 337 -338. </s> While the United States enjoys special rights in relation to navigable streams, such as its navigation servitude, there is no good reason why, when the Government condemns private property for a public use, its condemnee should not receive from the Government the same measure of "just compensation" as from other condemnors. If the property taken is "private property," the constitutional compensation for it should be the same. That measure includes the "highest and most profitable use for which the property is adaptable . . . to the full extent [350 U.S. 222, 240] that the prospect of demand for such use affects the market value while the property is privately held." Olson v. United States, supra, at 255. </s> ". . . No precedent has been advanced which suggests that a different measure of compensation should be required where the United States rather than the state is the taker of the property for a public project. Nor has any reason been suggested why as a matter of principle or policy there should be a different measure of compensation in such a case. . . . </s> . . . . . </s> ". . . The United States no more than a state can be excused from paying just compensation measured by the value of the property at the time of the taking merely because it could destroy that value by appropriate legislation or regulation." United States ex rel. T. V. A. v. Powelson, 319 U.S. 266, 278 , 284. See also, United States v. Cress, 243 U.S. 316, 319 , 326-327, 329-330. </s> The Government contends, however, that since it need not pay for appropriating the water in the stream, it should not be required to pay for any value in the fast lands that is predicated upon the riparian location of such lands, or their special value in relation to the use of that water. In this connection, the issues decided and the statements made by Justice Lurton for a unanimous Court in United States v. Chandler-Dunbar Co., 229 U.S. 53 , are helpful. The Chandler case was a condemnation proceeding brought by the United States under a special Act of Congress relating to all the land and other property between the St. Mary's Falls Ship Canal at Sault Sainte Marie, Michigan, and the international boundary to the north. The United States "took" this land and property so as to improve navigation in these highly navigable waters. It exercised plenary control over the entire river [350 U.S. 222, 241] and over everything within its bed up to its ordinary high-water mark. It thus exercised its navigation servitude and eliminated, without compensation, a hydroelectric development which the Chandler-Dunbar Company had constructed on the latter's submerged land within the bed of the river. That elimination was no longer in issue in this Court. The principal questions related to the District Court's awards for water rights claimed by Chandler and for fast land owned by Chandler above and beyond the bed of the river. 10 </s> 1. The District Court allowed Chandler $550,000 for the water rights. Chandler, however, established no vested right to such water under state law and this Court disallowed the entire claim. It said: </s> ". . . Unless . . . the water power rights asserted by the Chandler-Dunbar Company are determined to be private property the court below was not authorized to award compensation for such rights. </s> ". . . Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable." Id., at 69. </s> That conclusion is not questioned. </s> 2. In fixing compensation to Chandler for its strip of eight acres of fast land, the District Court allowed for "use for canal and lock purposes, an additional value of $25,000," and for a smaller area consisting of two other parcels of fast land for "its special value for canal and lock purposes an additional sum of $10,000." Id., at 75. [350 U.S. 222, 242] These allowances of additional value for fast lands, due to their suitability and availability for canal and lock purposes, are significant for our present purposes. The Court explained them as follows: </s> ". . . That this land had a prospective value for the purpose of constructing a canal and lock parallel with those in use had passed beyond the region of the purely conjectural or speculative. That one or more additional parallel canals and locks would be needed to meet the increasing demands of lake traffic was an immediate probability. This land was the only land available for the purpose. It included all the land between the canals in use and the bank of the river. Although it is not proper to estimate land condemned for public purposes by the public necessities or its worth to the public for such purpose, it is proper to consider the fact that the property is so situated that it will probably be desired and available for such a purpose. Lewis on Eminent Domain, 707. Boom Co. v. Patterson, 98 U.S. 403, 408 ; Shoemaker v. United States, 147 U.S. 282 ; Young v. Harrison, 17 Georgia, 30; Alloway v. Nashville, 88 Tennessee, 510; Sargent v. Merrimac, 196 Massachusetts, 171." (Emphasis supplied.) Id., at 76-77. </s> Justice Lurton then reviewed and quoted at length from the opinions in Boom Co. v. Patterson, supra, and Shoemaker v. United States, supra. 11 </s> [350 U.S. 222, 243] </s> Coupled with the reasoning of the Court and its quotations from earlier cases, these allowances support the position taken by the lower courts in the instant case. They are "additional values" allowed for the location, special suitability and availability of the riparian land for use in connection with the recognized future public use of the area. In fact, the uses for which the allowances are made are of the very same type as that for which the land has been condemned. There is no allowance for strategic or "hold-up" value. The Chandler case thus supplies specific authority for the decision of the lower courts in the instant case. </s> 3. In fixing the compensation for the same eight acres and the smaller area, the District Court also made a basic allowance of $20,000 for the value of the strip "for all general purposes, like residences, or hotels, factory sites, disconnected with water power etc.," and $10,000 in relation to the smaller area for "general wharfage, dock and warehouse purposes." Id., at 74, 75. This Court upheld both, thereby further demonstrating that the location of land is a proper element to be considered in determining "just compensation." </s> 4. On the other hand, the District Court approved one other element of "additional value" in relation to these land areas which this Court rejected. In valuing the eight acres, the District Court allowed an "additional value" of $20,000 for "use as factory site in connection with the development of 6,500 horse power, either as a single site or for several factories to use the surplus of 6,500 horse power not now used in the city." Id., at 74-75. Likewise, in valuing the smaller area, the District Court allowed an additional value of $5,000 in "connection [350 U.S. 222, 244] with the canal along the rapids, if used as a part of the development of 4,500 (6,500) horse power." Id., at 75. It has been suggested that these rejections are in conflict with the Court's simultaneous approval of the additional values of the same land for canal or lock purposes. The Government also claims to find in these rejections some support for its opposition in the instant case to any allowance reflecting the favorable location of the fast land it has taken on the banks of the Savannah River. </s> The Court's reasons for rejecting these particular values in the Chandler case, as expressly stated by Justice Lurton, lend no such support to the Government's position in the instant case. He said: </s> ". . . These `additional' values were based upon the erroneous hypothesis that that company [Chandler-Dunbar] had a private property interest in the water power of the river, not possibly needed now or in the future for purposes of navigation, and that that excess or surplus water was capable, by some extension of their works already in the river, of producing 6,500 horse power. </s> "Having decided that the Chandler-Dunbar Company as riparian owners had no such vested property right in the water power inherent in the falls and rapids of the river, and no right to place in the river the works essential to any practical use of the flow of the river, the Government cannot be justly required to pay for an element of value which did not inhere in these parcels as upland." Id., at 75-76. </s> In other words, the rejected values were not part of the fair market value of the land for any assured use. They sought to recognize a value in the fast land for factory sites which were conditioned upon there being excess water in the stream not needed by the Government for [350 U.S. 222, 245] navigation, and further conditioned upon the development by Chandler of structures in the bed of the stream to develop 6,500 additional horsepower from this excess water. Not only was there found to be no such excess water but Chandler's potential power development within the bed of the stream was expressly disallowed. The rejection thus was due to the speculative nature of the proposed use and not to the favorable riparian location of the land for assured uses. It was thoroughly consistent with the Court's allowance of established values of the land for canal and lock purposes. </s> To accept the Government's position in the instant case would, in effect, extend its navigation servitude far above and beyond the high-water mark of the Savannah River. In the face of decisions uniformly limiting that servitude to the bed of the stream, the Government would take 4,700 acres of private property for a public use, substantially without compensation therefor. This would enforce the Government's right of condemnation, while repudiating its constitutional obligation to pay for the private property taken. </s> The justice of sustaining the interpretation placed on the Fifth Amendment by the courts below is emphasized in the following statements made by this Court in Monongahela Navigation Co. v. United States, 148 U.S. 312, 324 , 325: </s> ". . . The question presented is not whether the United States has the power to condemn and appropriate this property of the Monongahela Company, for that is conceded, but how much it must pay as compensation therefor. Obviously, this question, as all others which run along the line of the extent of the protection the individual has under the Constitution against the demands of the government, is of importance; for in any society the fulness and sufficiency of the securities which surround the individual [350 U.S. 222, 246] in the use and enjoyment of his property constitute one of the most certain tests of the character and value of the government. The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights. </s> . . . . . </s> ". . . And in this there is a natural equity which commends it to every one. It in no wise detracts from the power of the public to take whatever may be necessary for its uses; while, on the other hand, it prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him." </s> For the foregoing reasons, the judgment of the Court of Appeals should be affirmed. </s> Footnotes [Footnote 1 See opinion of District Judge Wyche speaking, in 1949, for the District Courts for the Western District of South Carolina and the Southern District of Georgia, 86 F. Supp. 467; report of Commissioners, in 1953 (R. 14); opinion of District Judge Wyche confirming, in 1953, the Commissioner's report which also was confirmed by District Judge Scarlett for the Southern District of Georgia, 114 F. Supp. 719; opinion of District Judge Wyche, sitting with District Judge Scarlett, overruling, in 1953, motion to amend findings and enter a new judgment (R. 55); opinion of Chief Judge Parker, in 1954, joined by Circuit Judges Soper and Dobie, constituting the Court of Appeals for the Fourth Circuit, 215 F.2d 592; and opinion of Chief Judge Hutcheson, in 1955, joined by Circuit Judge Holmes and District Judge Dawkins, constituting the Court of Appeals for the Fifth Circuit, 221 F.2d 299. See also, opinion rendered, in 1947, in Savannah River Electric Co. v. Federal Power Commission, 164 F.2d 408, by the Court of Appeals for the Fourth Circuit. </s> [Footnote 2 Twin City's 4,700 acres would include all except about 170 acres of the land and rights necessary for the location of a dam, plant and reservoir basin with a 60-foot head of water at Price's Island. A 60-foot head at that point with a 5-foot surcharge would require about 400 additional acres instead of 170, a 70-foot head with a 5-foot surcharge, 1,250 acres, and an 80-foot head with a 5-foot surcharge, 2,800 acres. The Twin City land was not only available but essential for such developments in the vicinity of Price's Island. Cf. United States ex rel. T. V. A. v. Powelson, 319 U.S. 266 ; Olson v. United States, 292 U.S. 246 . </s> [Footnote 3 Savannah River Electric Co. v. Federal Power Commission, supra. </s> [Footnote 4 These 188.50 acres are those on which the flowage rights have been found by the lower courts to be valid and enforceable, as distinguished from the 745.58 acres of "options" which have been treated by the lower courts as unenforceable. The flowage rights were acquired by Twin City through deeds of purchase and, for reservoir purposes, they are as valuable as a title in fee. They evidence a control over riparian land without which water rights are useless for the development of a hydroelectric project. </s> [Footnote 5 The answers filed by the condemnees in this action were so construed by the District Court. The United States, relying on United States v. Chandler-Dunbar Co., 229 U.S. 53 , moved to strike portions of the amended answers filed by the condemnees. In denying these motions, the District Court said: </s> ". . . But, I do not understand that the condemnee by its answers claims to have any private property right in the `water power capacity' or the `raw water' of the river; neither has it built, nor does it own, any structures in the stream for which it claims compensation. On the contrary, its claim is limited to the fair market value of its fast lands, based upon `the most profitable use to which the land can probably be put in the reasonably near future.'" United States v. 1532.63 Acres of Land, 86 F. Supp. 467, 476. </s> [Footnote 6 Following the above statement, we illustrated, in a footnote, the limitation of the servitude to the bed of the stream as fixed by its ordinary high-water mark. We showed that in the Chicago case, supra, this Court permitted the overflowing, without compensation, of land within the bed of the stream but denied application of the servitude to nearby land outside of the bed of the stream. The Court also remanded that case for a determination of whether or not certain other lands were within the bed of the stream. </s> [Footnote 7 Near this point, there also appears the following statement which has significance here in view of the competition between Twin City and others prior to the taking of the land in question by the United States: </s> ". . . It is common knowledge that public service corporations and others having that power [of condemnation] frequently are actual or potential competitors, not only for tracts held in single ownership but also for rights of way, locations, sites and other areas requiring the union of numerous parcels held by different owners. And, to the extent that probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account." 292 U.S., at 256 . </s> See United States ex rel. T. V. A. v. Powelson, supra, at 275; and also Grand River Dam Authority v. Grand-Hydro. 335 U.S. 359 ; United States v. Miller, 317 U.S. 369 ; McCandless v. United States, 298 U.S. 342 ; City of New York v. Sage, 239 U.S. 57 ; Boom Co. v. Patterson, 98 U.S. 403, 407 -408. </s> [Footnote 8 The following are excerpts from the Commissioner's report: </s> ". . . By reason of their geographical location, these lands and other property rights of Twin City had a peculiar value for water power purposes . . . . </s> . . . . . </s> ". . . all the witnesses, in the main, had taken the steam plant comparison method as one of the principal bases for arriving at the water power value of the property of Twin City . . . . In that connection, we wish to make it clear that the figure arrived at by the so-called `steam plant comparison method' [$1,600,000], was not taken as an absolute guide, or basis, but was used as one of the principal bases, together with numerous other factors considered by these expert witnesses . . . ." </s> [Footnote 9 The estimate which the Commissioners made of the value of the land based upon its timber and agricultural value, plus an allowance of $5 per acre for the assembly of the title under a single ownership, was about $37 per acre in South Carolina and $31 per acre in Georgia, producing a total of $150,841.85. This contrasts with the $267.02 per acre, and a total "just compensation" of $1,257,033.20, approved by the Commissioners and the courts below. </s> [Footnote 10 The allowances of value are here discussed in the following order: </s> (1) for water rights; (2) for value of land for canal and lock purposes; (3) for value of land for general purposes; and (4) for value of land for factory sites contingent upon availability of surplus privately developed electric power. In the text of the Chandler case, at pages 74-75, the value of canal and lock purposes is treated last. </s> [Footnote 11 Although erroneously referring to it as having been used in a lower court instruction in the Shoemaker case, Justice Lurton's quotation of the following language lends this Court's approval to it: </s> ". . . `the market value of the land includes its value for any use to which it may be put, and all the uses to which it is adapted, and not merely the condition in which it is at the present time, and the use to which it is now applied by the owner; . . . that if, by reason of its location, its surroundings, its natural advantages, its artificial improvement or its intrinsic character, it is peculiarly adapted to [350 U.S. 222, 243] some particular use - e. g., to the use of a public park - all the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation.'" 229 U.S., at 78 . </s> [350 U.S. 222, 247]

United States Supreme Court PEMBAUR v. CINCINNATI(1986) No. 84-1160 Argued: December 2, 1985Decided: March 25, 1986 </s> Petitioner, a physician and the proprietor of a clinic in Cincinnati, Ohio, that provided medical services primarily to welfare recipients, was indicted by a grand jury for fraudulently accepting payments from state welfare agencies. During the grand jury investigation, subpoenas were issued for the appearance of two of petitioner's employees. When the employees failed to appear, the Assistant County Prosecutor obtained capiases for their detention. But when two County Deputy Sheriffs attempted to serve the capiases at petitioner's clinic, he barred the door and refused to let them enter the part of the clinic where the employees presumably were located. Thereafter, Cincinnati police officers, whom petitioner had called, appeared and told petitioner to allow the Deputy Sheriffs to enter. Petitioner continued to refuse. The Deputy Sheriffs then called their superior who told them to call the County Prosecutor's Office and to follow his instructions. The Deputy Sheriffs spoke to the Assistant Prosecutor assigned to the case. He in turn conferred with the County Prosecutor, who told him to instruct the Deputy Sheriffs to "go in and get" the employees. The Assistant Prosecutor relayed these instructions to the Deputy Sheriffs. After the Deputy Sheriffs tried unsuccessfully to force the door, city police officers obtained an axe and chopped down the door. The Deputy Sheriffs then entered and searched the clinic but were unable to locate the employees sought. Although petitioner was acquitted of the fraud charges, he was indicted and convicted for obstructing police in the performance of an authorized act. His conviction was upheld by the Ohio Supreme Court. Petitioner then filed a damages action in Federal District Court under 42 U.S.C. 1983 against the county, among other defendants, alleging that the county had violated his rights under the Fourth and Fourteenth Amendments. The District Court dismissed the claim against the county on the ground that the individual officers were not acting pursuant to the kind of "official policy" that is the predicate for municipal liability under Monell v. New York City Dept. of Social Services, 436 U.S. 658 . The Court of Appeals affirmed, holding that petitioner had failed to prove the existence of a county policy because he had shown nothing more than that on "this one occasion" the Prosecutor and the Sheriff decided to force entry into petitioner's clinic. [475 U.S. 469, 470] </s> Held: </s> The judgment is reversed, and the case is remanded. </s> 746 F.2d 337, reversed and remanded. </s> JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I, II-A, and II-C, concluding that: </s> 1. The "official policy" requirement of Monell was intended to distinguish acts of the municipality from acts of the municipality's employees, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible. Monell held that recovery from a municipality is limited to acts that are, properly speaking, "of the municipality," i. e., acts that the municipality has officially sanctioned or ordered. With this understanding, it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances. If the decision to adopt a particular course of action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly. Pp. 477-481. </s> 2. It was error to dismiss petitioner's claim against the county. Ohio law authorizes the County Sheriff to obtain instructions from the County Prosecutor. The Sheriff followed the practice of delegating certain decisions to the Prosecutor where appropriate. In this case, the Deputy Sheriffs received instructions from the Sheriff's Office to follow the orders of the County Prosecutor, who made a considered decision based on his understanding of the law and commanded the Deputy Sheriffs to enter petitioner's clinic. That decision directly caused a violation of petitioner's Fourth Amendment rights. In ordering the Deputy Sheriffs to enter petitioner's clinic to serve the capiases on the employees, the County Prosecutor was acting as the final decisionmaker for the county, and the county may therefore be held liable under 1983. Pp. 484-485. </s> JUSTICE BRENNAN, joined by JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concluded in Part II-B that not every decision by municipal officers automatically subjects the municipality to 1983 liability. The fact that a particular official has discretion in the exercise of particular functions does not give rise to municipal liability based on an exercise of that discretion unless the official is also responsible, under state law, for establishing final governmental policy respecting such activity. Municipal liability under 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. Pp. 481-484. </s> BRENNAN, J., delivered the opinion of the Court with respect to Parts I, II-A, and II-C, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and [475 U.S. 469, 471] O'CONNOR (except for Part II-C), JJ., joined, and an opinion with respect to Part II-B, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 485. STEVENS, J., post, p. 487, and O'CONNOR, J., post, p. 491, filed opinions concurring in part and concurring in the judgment. POWELL, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 492. </s> Robert E. Manley argued the cause for petitioner. With him on the briefs was Andrew S. Lipton. </s> Roger E. Friedmann argued the cause for respondents. With him on the brief was Arthur M. Ney, Jr. * </s> [Footnote * Jack D. Novik, Burt Neuborne, and Bruce Campbell filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. </s> JUSTICE BRENNAN delivered the opinion of the Court, except as to Part II-B. </s> In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), the Court concluded that municipal liability under 42 U.S.C. 1983 is limited to deprivations of federally protected rights caused by action taken "pursuant to official municipal policy of some nature . . . ." Id., at 691. The question presented is whether, and in what circumstances, a decision by municipal policymakers on a single occasion may satisfy this requirement. </s> I </s> Bertold Pembaur is a licensed Ohio physician and the sole proprietor of the Rockdale Medical Center, located in the city of Cincinnati in Hamilton County. Most of Pembaur's patients are welfare recipients who rely on government assistance to pay for medical care. During the spring of 1977, Simon Leis, the Hamilton County Prosecutor, began investigating charges that Pembaur fraudulently had accepted payments from state welfare agencies for services not actually provided to patients. A grand jury was convened, and the case was assigned to Assistant Prosecutor William Whalen. [475 U.S. 469, 472] In April, the grand jury charged Pembaur in a six-count indictment. </s> During the investigation, the grand jury issued subpoenas for the appearance of two of Pembaur's employees. When these employees failed to appear as directed, the Prosecutor obtained capiases for their arrest and detention from the Court of Common Pleas of Hamilton County. 1 </s> On May 19, 1977, two Hamilton County Deputy Sheriffs attempted to serve the capiases at Pembaur's clinic. Although the reception area is open to the public, the rest of the clinic may be entered only through a door next to the receptionist's window. Upon arriving, the Deputy Sheriffs identified themselves to the receptionist and sought to pass through this door, which was apparently open. The receptionist blocked their way and asked them to wait for the doctor. When Pembaur appeared a moment later, he and the receptionist closed the door, which automatically locked from the inside, and wedged a piece of wood between it and the wall. Returning to the receptionist's window, the Deputy Sheriffs identified themselves to Pembaur, showed him the capiases and explained why they were there. Pembaur refused to let them enter, claiming that the police had no legal authority to be there and requesting that they leave. He told them that he had called the Cincinnati police, the local media, and his lawyer. The Deputy Sheriffs decided not to take further action until the Cincinnati police arrived. </s> Shortly thereafter, several Cincinnati police officers appeared. The Deputy Sheriffs explained the situation to them and asked that they speak to Pembaur. The Cincinnati police told Pembaur that the papers were lawful and that he should allow the Deputy Sheriffs to enter. When Pembaur refused, the Cincinnati police called for a superior officer. When he too failed to persuade Pembaur to open the door, [475 U.S. 469, 473] the Deputy Sheriffs decided to call their supervisor for further instructions. Their supervisor told them to call Assistant Prosecutor Whalen and to follow his instructions. The Deputy Sheriffs then telephoned Whalen and informed him of the situation. Whalen conferred with County Prosecutor Leis, who told Whalen to instruct the Deputy Sheriffs to "go in and get [the witnesses]." Whalen in turn passed these instructions along to the Deputy Sheriffs. </s> After a final attempt to persuade Pembaur voluntarily to allow them to enter, the Deputy Sheriffs tried unsuccessfully to force the door. City police officers, who had been advised of the County Prosecutor's instructions to "go in and get" the witnesses, obtained an axe and chopped down the door. The Deputy Sheriffs then entered and searched the clinic. Two individuals who fit descriptions of the witnesses sought were detained, but turned out not to be the right persons. </s> After this incident, the Prosecutor obtained an additional indictment against Pembaur for obstructing police in the performance of an authorized act. Although acquitted of all other charges, Pembaur was convicted for this offense. The Ohio Court of Appeals reversed, reasoning that Pembaur was privileged under state law to exclude the deputies because the search of his office violated the Fourth Amendment. State v. Pembaur, No. C-790380 (Hamilton County Court of Appeals, Nov. 3, 1982). The Ohio Supreme Court reversed and reinstated the conviction. State v. Pembaur, 9 Ohio St. 3d 136, 459 N. E. 2d 217, cert. denied, 467 U.S. 1219 (1984). The Supreme Court held that the state-law privilege applied only to bad-faith conduct by law enforcement officials, and that, under the circumstances of this case, Pembaur was obliged to acquiesce to the search and seek redress later in a civil action for damages. 9 Ohio St. 3d, at 138, 459 N. E. 2d, at 219. </s> On April 20, 1981, Pembaur filed the present action in the United States District Court for the Southern District of Ohio against the city of Cincinnati, the County of Hamilton, [475 U.S. 469, 474] the Cincinnati Police Chief, the Hamilton County Sheriff, the members of the Hamilton Board of County Commissioners (in their official capacities only), Assistant Prosecutor Whalen, and nine city and county police officers. 2 Pembaur sought damages under 42 U.S.C. 1983, alleging that the county and city police had violated his rights under the Fourth and Fourteenth Amendments. His theory was that, absent exigent circumstances, the Fourth Amendment prohibits police from searching an individual's home or business without a search warrant even to execute an arrest warrant for a third person. We agreed with that proposition in Steagald v. United States, 451 U.S. 204 (1981), decided the day after Pembaur filed this lawsuit. Pembaur sought $10 million in actual and $10 million in punitive damages, plus costs and attorney's fees. </s> Much of the testimony at the 4-day trial concerned the practices of the Hamilton County Police in serving capiases. Frank Webb, one of the Deputy Sheriffs present at the clinic on May 19, testified that he had previously served capiases on the property of third persons without a search warrant, but had never been required to use force to gain access. Assistant Prosecutor Whalen was also unaware of a prior instance in which police had been denied access to a third person's property in serving a capias and had used force to gain entry. Lincoln Stokes, the County Sheriff, testified that the Department had no written policy respecting the serving of capiases on the property of third persons and that the proper response in any given situation would depend upon the circumstances. He too could not recall a specific instance in [475 U.S. 469, 475] which entrance had been denied and forcibly gained. Sheriff Stokes did testify, however, that it was the practice in his Department to refer questions to the County Prosecutor for instructions under appropriate circumstances and that "it was the proper thing to do" in this case. </s> The District Court awarded judgment to the defendants and dismissed the complaint in its entirety. The court agreed that the entry and search of Pembaur's clinic violated the Fourth Amendment under Steagald, supra, but held Steagald inapplicable since it was decided nearly four years after the incident occurred. Because it construed the law in the Sixth Circuit in 1977 to permit law enforcement officials to enter the premises of a third person to serve a capias, the District Court held that the individual municipal officials were all immune under Harlow v. Fitzgerald, 457 U.S. 800 (1982). </s> The claims against the county and the city were dismissed on the ground that the individual officers were not acting pursuant to the kind of "official policy" that is the predicate for municipal liability under Monell. With respect to Hamilton County, the court explained that, even assuming that the entry and search were pursuant to a governmental policy, "it was not a policy of Hamilton County per se" because "[t]he Hamilton County Board of County Commissioners, acting on behalf of the county, simply does not establish or control the policies of the Hamilton County Sheriff." With respect to the city of Cincinnati, the court found that "the only policy or custom followed . . . was that of aiding County Sheriff's Deputies in the performance of their duties." The court found that any participation by city police in the entry and search of the clinic resulted from decisions by individual officers as to the permissible scope of assistance they could provide, and not from a city policy to provide this particular kind of assistance. </s> On appeal, Pembaur challenged only the dismissal of his claims against Whalen, Hamilton County, and the city of Cincinnati. [475 U.S. 469, 476] The Court of Appeals for the Sixth Circuit upheld the dismissal of Pembaur's claims against Whalen and Hamilton County, but reversed the dismissal of his claim against the city of Cincinnati on the ground that the District Court's findings concerning the policies followed by the Cincinnati police were clearly erroneous. 746 F.2d 337 (1984). 3 </s> The Court of Appeals affirmed the District Court's dismissal of Pembaur's claim against Hamilton County, but on different grounds. The court held that the County Board's lack of control over the Sheriff would not preclude county liability if "the nature and duties of the Sheriff are such that his acts may fairly be said to represent the county's official policy with respect to the specific subject matter." Id., at 340-341. Based upon its examination of Ohio law, the Court of Appeals found it "clea[r]" that the Sheriff and the Prosecutor were both county officials authorized to establish "the official policy of Hamilton County" with respect to matters of law enforcement. Id., at 341. Notwithstanding these conclusions, however, the court found that Pembaur's claim against the county had been properly dismissed: </s> "We believe that Pembaur failed to prove the existence of a county policy in this case. Pembaur claims that the deputy sheriffs acted pursuant to the policies of the Sheriff and Prosecutor by forcing entry into the medical center. Pembaur has failed to establish, however, anything more than that, on this one occasion, the Prosecutor and the Sheriff decided to force entry into his office. . . . That single, discrete decision is insufficient, [475 U.S. 469, 477] by itself, to establish that the Prosecutor, the Sheriff, or both were implementing a governmental policy." Ibid. (footnote omitted) (emphasis in original). </s> Pembaur petitioned for certiorari to review only the dismissal of his claim against Hamilton County. The decision of the Court of Appeals conflicts with holdings in several other Courts of Appeals, 4 and we granted the petition to resolve the conflict. 472 U.S. 1016 (1985). We reverse. </s> II </s> A </s> Our analysis must begin with the proposition that "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. New York City Dept. of Social Services, 436 U.S., at 691 . 5 As we read its opinion, the Court of Appeals held that a single decision to [475 U.S. 469, 478] take particular action, although made by municipal policymakers, cannot establish the kind of "official policy" required by Monell as a predicate to municipal liability under 1983. 6 The Court of Appeals reached this conclusion without referring to Monell - indeed, without any explanation at all. However, examination of the opinion in Monell clearly demonstrates that the Court of Appeals misinterpreted its holding. </s> Monell is a case about responsibility. In the first part of the opinion, we held that local government units could be made liable under 1983 for deprivations of federal rights, overruling a contrary holding in Monroe v. Pape, 365 U.S. 167 (1961). In the second part of the opinion, we recognized a limitation on this liability and concluded that a municipality cannot be made liable by application of the doctrine of respondeat superior. See Monell, 436 U.S., at 691 . In part, this conclusion rested upon the language of 1983, which imposes liability only on a person who "subjects, or causes to be subjected," any individual to a deprivation of federal rights; we noted that this language "cannot easily be read to impose liability vicariously on government bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor." Id., at 692. Primarily, [475 U.S. 469, 479] however, our conclusion rested upon the legislative history, which disclosed that, while Congress never questioned its power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its constitutional power to impose such liability in order to oblige municipalities to control the conduct of others. Id., at 665-683. 7 We found that, because of these doubts, Congress chose not to create such obligations in 1983. Recognizing that this would be the effect of a federal law of respondeat superior, we concluded that 1983 could not be interpreted to incorporate doctrines of vicarious liability. Id., at 692-694, and n. 57. </s> The conclusion that tortious conduct, to be the basis for municipal liability under 1983, must be pursuant to a municipality's "official policy" is contained in this discussion. The "official policy" requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible. 8 </s> [475 U.S. 469, 480] Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts "of the municipality" - that is, acts which the municipality has officially sanctioned or ordered. </s> With this understanding, it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances. No one has ever doubted, for instance, that a municipality may be liable under 1983 for a single decision by its properly constituted legislative body - whether or not that body had taken similar action in the past or intended to do so in the future - because even a single decision by such a body unquestionably constitutes an act of official government policy. See, e. g., Owen v. City of Independence, 445 U.S. 622 (1980) (City Council passed resolution firing plaintiff without a pretermination hearing); Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (City Council canceled license permitting concert because of dispute over content of performance). But the power to establish policy is no more the exclusive province of the legislature at the local level than at the state or national level. Monell's language makes clear that it expressly envisioned other officials "whose acts or edicts may fairly be said to represent official policy," Monell, supra, at 694, and whose decisions therefore may give rise to municipal liability under 1983. </s> Indeed, any other conclusion would be inconsistent with the principles underlying 1983. To be sure, "official policy" often refers to formal rules or understandings - often but not always committed to writing - that are intended to, and do, establish fixed plans of action to be followed under similar circumstances [475 U.S. 469, 481] consistently and over time. That was the case in Monell itself, which involved a written rule requiring pregnant employees to take unpaid leaves of absence before such leaves were medically necessary. However, as in Owen and Newport, a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government "policy" as that term is commonly understood. 9 More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly. To deny compensation to the victim would therefore be contrary to the fundamental purpose of 1983. </s> B </s> Having said this much, we hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to 1983 liability. Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. 10 The fact that a particular official - even a policymaking [475 U.S. 469, 482] official - has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. See, e. g., Oklahoma City v. Tuttle, 471 U.S., at 822 -824. 11 The official [475 U.S. 469, 483] must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. 12 Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law. However, like other governmental entities, municipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding county policy respecting particular matters and to adjust that policy for the county in changing circumstances. To hold a municipality liable for actions ordered by such officers exercising their policymaking authority is no more an application of the theory of respondeat superior than was holding the municipalities liable for the decisions of the City Councils in Owen and Newport. In each case municipal liability attached to a single decision to take unlawful action made by municipal policymakers. We hold that municipal liability under 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. [475 U.S. 469, 484] See Tuttle, supra, at 823 ("`policy' generally implies a course of action consciously chosen from among various alternatives"). </s> C </s> Applying this standard to the case before us, we have little difficulty concluding that the Court of Appeals erred in dismissing petitioner's claim against the county. The Deputy Sheriffs who attempted to serve the capiases at petitioner's clinic found themselves in a difficult situation. Unsure of the proper course of action to follow, they sought instructions from their supervisors. The instructions they received were to follow the orders of the County Prosecutor. The Prosecutor made a considered decision based on his understanding of the law and commanded the officers forcibly to enter petitioner's clinic. That decision directly caused the violation of petitioner's Fourth Amendment rights. </s> Respondent argues that the County Prosecutor lacked authority to establish municipal policy respecting law enforcement practices because only the County Sheriff may establish policy respecting such practices. Respondent suggests that the County Prosecutor was merely rendering "legal advice" when he ordered the Deputy Sheriffs to "go in and get" the witnesses. Consequently, the argument concludes, the action of the individual Deputy Sheriffs in following this advice and forcibly entering petitioner's clinic was not pursuant to a properly established municipal policy. </s> We might be inclined to agree with respondent if we thought that the Prosecutor had only rendered "legal advice." However, the Court of Appeals concluded, based upon its examination of Ohio law, that both the County Sheriff and the County Prosecutor could establish county policy under appropriate circumstances, a conclusion that we do not question here. 13 Ohio Rev. Code Ann. 309.09(A) (1979) [475 U.S. 469, 485] provides that county officers may "require . . . instructions from [the County Prosecutor] in matters connected with their official duties." Pursuant to standard office procedure, the Sheriff's Office referred this matter to the Prosecutor and then followed his instructions. The Sheriff testified that his Department followed this practice under appropriate circumstances and that it was "the proper thing to do" in this case. We decline to accept respondent's invitation to overlook this delegation of authority by disingenuously labeling the Prosecutor's clear command mere "legal advice." In ordering the Deputy Sheriffs to enter petitioner's clinic the County Prosecutor was acting as the final decisionmaker for the County, and the county may therefore be held liable under 1983. </s> The decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 A capias is a writ of attachment commanding a county official to bring a subpoenaed witness who has failed to appear before the court to testify and to answer for civil contempt. See Ohio Rev. Code Ann. 2317.21 (1981). </s> [Footnote 2 Hamilton County Prosecutor Leis was not made a defendant because counsel for petitioner believed that Leis was absolutely immune. Tr., Mar. 14-Mar. 17, p. 267. We express no view as to the correctness of this evaluation. Cf. Imbler v. Pachtman, 424 U.S. 409, 430 -431 (1976) (leaving open the question of a prosecutor's immunity when he acts "in the role of an administrator or investigative officer rather than that of an advocate"). </s> [Footnote 3 The court found that there was a city policy respecting the use of force in serving capiases as well as a policy of aiding county police. It based this conclusion on the testimony of Cincinnati Chief of Police Myron Leistler, who stated that it was the policy of his Department to take whatever steps were necessary, including the forcing of doors, to serve an arrest document. 746 F.2d, at 341-342; see also, Tr., Mar. 14-Mar. 17, pp. 43-45, 46-47. The court remanded the case for a determination whether Pembaur's injury was incurred as a result of the execution of this policy. 746 F.2d, at 342. </s> [Footnote 4 See, e. g., McKinley v. City of Eloy, 705 F.2d 1110, 1116-1117 (CA9 1983); Berdin v. Duggan, 701 F.2d 909, 913-914 (CA11), cert. denied, 464 U.S. 893 (1983); Van Ooteghem v. Gray, 628 F.2d 488, 494-495 (CA5 1980), cert. denied, 455 U.S. 909 (1982); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 448 (CA2 1980). See also Sanders v. St. Louis County, 724 F.2d 665, 668 (CA8 1983) (per curiam) ("It may be that one act of a senior county official is enough to establish the liability of the county, if that official was in a position to establish policy and if that official himself directly violated another's constitutional rights"). But see Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 910-911 (CA3 1984) ("[E]ven if [the Police Chief] were the final authority with regard to police activities, . . . there is no regulation or evidence of any repeated action by [the chief] . . . that can transmute his actions in the Losch incident into a general Borough policy"). </s> [Footnote 5 There is no question in this case that petitioner suffered a constitutional deprivation. The Court of Appeals found, and respondent concedes, that the entry and search of petitioner's clinic violated the Fourth Amendment under Steagald v. United States, 451 U.S. 204 (1981). See 746 F.2d, at 340, n. 1; Brief for Respondents 11. Respondent never challenged and has in fact also conceded that Steagald applies retroactively to this case. See Tr. of Oral Arg. 26-27. We decide this case in light of respondent's concessions. </s> [Footnote 6 The opinion below also can be read as holding that municipal liability cannot be imposed for a single incident of unconstitutional conduct by municipal employees whether or not that conduct is pursuant to municipal policy. Such a conclusion is unsupported by either the language or reasoning of Monell, or by any of our subsequent decisions. As we explained last Term in Oklahoma City v. Tuttle, 471 U.S. 808 (1985), once a municipal policy is established, "it requires only one application . . . to satisfy fully Monell's requirement that a municipal corporation be held liable only for constitutional violations resulting from the municipality's official policy." Id., at 822 (plurality opinion); see also, id., at 831-832 (BRENNAN, J., concurring in part and concurring in judgment.). The only issue before us, then, is whether petitioner satisfied Monell's requirement that the tortious conduct be pursuant to "official municipal policy." </s> [Footnote 7 This legislative history is discussed at length in Monell and need only be summarized here. The distinction between imposing liability on municipalities for their own violations and imposing liability to force municipalities to prevent violations by others was made by Members of the House of Representatives who successfully opposed the "Sherman amendment" to the Civil Rights Act of 1871, 17 Stat. 13, the precursor of 1983. The Sherman amendment sought to impose civil liability on municipalities for damage done to the person or property of its inhabitants by private persons "riotously and tumultuously assembled." Cong. Globe, 42d Cong., 1st Sess., 749 (1871) (quoted in Monell, 436 U.S., at 664 ). Opponents of the amendment argued that, in effect, it imposed an obligation on local governments to keep the peace, and that the Federal Government could not constitutionally require local governments to keep the peace if state law did not. This argument succeeded in blocking passage of the amendment. However, even the opponents of the Sherman amendment recognized Congress' power to impose civil liability on a local government already obligated to keep the peace by state law if that government failed to do so and thereby violated the Fourteenth Amendment. See id., at 665-683. </s> [Footnote 8 Thus, our statement of the conclusion juxtaposes the policy requirement with imposing liability on the basis of respondeat superior: </s> "We conclude, therefore, that a local government may not be sued under 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy . . ., whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 1983." Id., at 694. </s> [Footnote 9 While the dictionary is not the source definitively to resolve legal questions, we note that this description of "policy" is consistent with the word's ordinary definition. For example, Webster's defines the word as "a specific decision or set of decisions designed to carry out such a chosen course of action." Webster's Third New International Dictionary 1754 (1981). Similarly, the Oxford English Dictionary defines "policy" as "[a] course of action adopted and pursued by a government, party, ruler, statesman, etc.; any course of action adopted as advantageous or expedient." VII Oxford English Dictionary 1071 (1933). See also, Webster's New Twentieth Century Dictionary 1392 (2d ed. 1979) ("any governing principle, plan, or course of action"); Random House Dictionary 1113 (1966) ("a course of action adopted and pursued by a government, ruler, political party, etc."). </s> [Footnote 10 Section 1983 also refers to deprivations under color of a state "custom or usage," and the Court in Monell noted accordingly that "local governments, [475 U.S. 469, 482] like every other 1983 `person,' . . . may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." 436 U.S., at 690 -691. A 1983 plaintiff thus may be able to recover from a municipality without adducing evidence of an affirmative decision by policymakers if able to prove that the challenged action was pursuant to a state "custom or usage." Because there is no allegation that the action challenged here was pursuant to a local "custom," this aspect of Monell is not at issue in this case. </s> [Footnote 11 Respondent argues that the holding in Tuttle is far broader than this. It relies on the statement near the end of JUSTICE REHNQUIST's plurality opinion that "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." 471 U.S., at 823 -824 (emphasis added). Respondent contends that a policy cannot be said to be "existing" unless similar action has been taken in the past. </s> This reading of the Tuttle plurality is strained, and places far too much weight on a single word. The plaintiff in Tuttle alleged that a police officer's use of excessive force deprived her decedent of life without due process of law. The plaintiff proved only a single instance of unconstitutional action by a nonpolicymaking employee of the city. She argued that the city had "caused" the constitutional deprivation by adopting a "policy" of inadequate training. The trial judge instructed the jury that a single, unusually excessive use of force may warrant an inference that it was attributable to grossly inadequate training, and that the municipality could be held liable on this basis. We reversed the judgment against the city. Although there was no opinion for the Court on this question, both the plurality and the opinion concurring in the judgment found plaintiff's submission inadequate because she failed to establish that the unconstitutional act was taken pursuant to a municipal policy rather than simply resulting from such a policy in a "but for" sense. Id., at 822-824 (plurality opinion), 829-830 (BRENNAN, J., concurring in part and concurring in judgment). That conclusion is entirely consistent with our holding today that the policy which ordered or authorized an unconstitutional act can be established by a single decision by proper municipal policymakers. </s> [Footnote 12 Thus, for example, the County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. If this were the case, the Sheriff's decisions respecting employment would not give rise to municipal liability, although similar decisions with respect to law enforcement practices, over which the Sheriff is the official policymaker, would give rise to municipal liability. Instead, if county employment policy was set by the Board of County Commissioners, only that body's decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriff's decisions would represent county policy and could give rise to municipal liability. </s> [Footnote 13 We generally accord great deference to the interpretation and application of state law by the courts of appeals. United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 815 , n. 12 (1984); Brockett [475 U.S. 469, 485] v. Spokane Arcades, Inc., 472 U.S. 491, 499 -500 (1985) (citing cases); see also Bishop v. Wood, 426 U.S. 341, 345 -347 (1976). </s> JUSTICE WHITE, concurring. </s> The forcible entry made in this case was not then illegal under federal, state, or local law. The city of Cincinnati frankly conceded that forcible entry of third-party property to effect otherwise valid arrests was standard operating procedure. There is no reason to believe that respondent county would abjure using lawful means to execute the capiases issued in this case or had limited the authority of its officers to use force in executing capiases. Further, the county officials who had the authority to approve or disapprove such entries opted for the forceful entry, a choice that was later held to be inconsistent with the Fourth Amendment. Vesting discretion in its officers to use force and its use in this case sufficiently manifested county policy to warrant reversal of the judgment below. [475 U.S. 469, 486] </s> This does not mean that every act of municipal officers with final authority to effect or authorize arrests and searches represents the policy of the municipality. It would be different if Steagald v. United States, 451 U.S. 204 (1981), had been decided when the events at issue here occurred, if the State Constitution or statutes had forbidden forceful entries without a warrant, or if there had been a municipal ordinance to this effect. Local law enforcement officers are expected to obey the law and ordinarily swear to do so when they take office. Where the controlling law places limits on their authority, they cannot be said to have the authority to make contrary policy. Had the Sheriff or Prosecutor in this case failed to follow an existing warrant requirement, it would be absurd to say that he was nevertheless executing county policy in authorizing the forceful entry in this case and even stranger to say that the county would be liable if the Sheriff had secured a warrant and it turned out that he and the Magistrate had mistakenly thought there was probable cause for the warrant. If deliberate or mistaken acts like this, admittedly contrary to local law, expose the county to liability, it must be on the basis of respondeat superior and not because the officers' acts represent local policy. </s> Such results would not conform to Monell and the cases following it. I do not understand the Court to hold otherwise in stating that municipal liability attaches where "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Ante, at 483-484. A sheriff, for example, is not the final policymaker with respect to the probable-cause requirement for a valid arrest. He has no alternative but to act in accordance with the established standard; and his deliberate or mistaken departure from the controlling law of arrest would not represent municipal policy. </s> In this case, however, the Sheriff and the Prosecutor chose a course that was not forbidden by any applicable law, a [475 U.S. 469, 487] choice that they then had the authority to make. This was county policy, and it was no less so at the time because a later decision of this Court declared unwarranted forceful entry into third-party premises to be violation of the Fourth Amendment. * Hence, I join the Court's opinion and judgment. </s> [Footnote * The county has not challenged the retroactivity of Steagald v. United States, 451 U.S. 204 (1981), and I do not address that issue. </s> JUSTICE STEVENS, concurring in part and concurring in the judgment. </s> This is not a hard case. If there is any difficulty, it arises from the problem of obtaining a consensus on the meaning of the word "policy" - a word that does not appear in the text of 42 U.S.C. 1983, the statutory provision that we are supposed to be construing. The difficulty is thus a consequence of this Court's lawmaking efforts rather than the work of the Congress of the United States. 1 </s> With respect to both the merits of the constitutional claim and the county's liability for the unconstitutional activities of its agents performed in the course of their official duties, there can be no doubt that the Congress that enacted the Ku Klux Act in 1871 intended the statute to authorize a recovery in a case of this kind. When police officers chopped down the door to petitioner's premises in order to serve capiases on two witnesses, they violated petitioner's constitutional rights. Steagald v. United States, 451 U.S. 204 (1981), [475 U.S. 469, 488] makes it perfectly clear that forcible entry to a third party's premises to execute an arrest warrant is unconstitutional if the entry is without a search warrant and in the absence of consent or exigent circumstances. 2 In my view, it is not at all surprising that respondents have "conceded" the retroactivity of Steagald. For Steagald plainly presented its holding as compelled by, and presaged in, well-established precedent. 3 </s> [475 U.S. 469, 489] </s> Similarly, if we view the question of municipal liability from the perspective of the Legislature that enacted the Ku Klux Act of 1871, the answer is clear. The legislative history indicating that Congress did not intend to impose civil liability on municipalities for the conduct of third parties, ante, at 478-479, and n. 7, merely confirms the view that it did intend to impose liability for the governments' own illegal acts - including those acts performed by their agents in the course of their employment. In other words, as I explained in my dissent in Oklahoma City v. Tuttle, 471 U.S. 808, 835 -840 (1985), both the broad remedial purpose of the statute and the fact that it embodied contemporaneous commonlaw doctrine, including respondeat superior, require a conclusion that Congress intended that a governmental entity be liable for the constitutional deprivations committed by its agents in the course of their duties. 4 </s> [475 U.S. 469, 490] </s> Finally, in construing the scope of 1983, the Court has sometimes referred to "considerations of public policy." 5 To the extent that such "policy" concerns are relevant, they also support a finding of county liability. A contrary construction would produce a most anomalous result. The primary responsibility for protecting the constitutional rights of the residents of Hamilton County from the officers of Hamilton County should rest on the shoulders of the county itself, rather than on the several agents who were trying to perform their jobs. Although I recognize that the county may provide insurance protection for its agents, I believe that the primary party against whom the judgment should run is the county itself. The county has the resources and the authority that can best avoid future constitutional violations and provide a fair remedy for those that have occurred in the past. Thus, even if "public policy" concerns should inform the construction of 1983, those considerations, like the statute's remedial purpose and common-law background, support [475 U.S. 469, 491] a conclusion of county liability for the unconstitutional, axe-swinging entry in this case. </s> Because I believe that Parts I, II-A, and II-C are consistent with the purpose and policy of 1983, as well as with our precedents, I join those Parts of the Court's opinion 6 and concur in the judgment. </s> [Footnote 1 See Oklahoma City v. Tuttle, 471 U.S. 808, 841 (1985) (STEVENS, J., dissenting) ("While the Court purports to answer a question of statutory construction . . . its opinion actually provides us with an interpretation of the word `policy' as it is used in Part II of the opinion in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 -695 (1978). The word `policy' does not appear in the text of 1983, but it provides the theme for today's decision"). It may be significant that the issue has apparently become, not the purpose and scope of 42 U.S.C. 1983, but the nature of the liability "envisioned" by this Court "in Monell." Post, at 491 (O'CONNOR, J., concurring in part and concurring in judgment); post, at 499 (POWELL, J., dissenting). </s> [Footnote 2 Indeed, it can be argued that the justification for a forcible entry to serve a capias, as in this case, is even weaker than the justification for a forcible entry to execute an arrest warrant, as in Steagald. Since the Sixth Circuit in this action, 746 F.2d 337 (1984), and the Ohio Supreme Court in reviewing petitioner's conviction, State v. Pembaur, 9 Ohio St. 3d 136, 459 N. E. 2d 217, cert. denied, 467 U.S. 1219 (1984), did not distinguish between the two situations, however, and since the forcible entry was unconstitutional under either conception, it is unnecessary to rest on that possible difference. </s> [Footnote 3 See 451 U.S., at 211 ("Except in [cases of consent or exigent circumstances], we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant"); id., at 213-214 ("In the absence of exigent circumstances, we have consistently held that such judicially untested determinations are not reliable enough to justify an entry into a person's home to arrest him without a warrant, or a search of a home for objects in the absence of a search warrant. . . . We see no reason to depart from this settled course when the search of a home is for a person rather than an object"); id., at 216 ("Since warrantless searches of a home are impermissible absent consent or exigent circumstances, we conclude that the instant search violated the Fourth Amendment"); id., at 219 ("[I]f anything, the little guidance that can be gleaned from common-law authorities undercuts the Government's position. The language of Semayne's Case, [5 Co. Rep. 91a, 77 Eng. Rep. 194 (K. B. 1603)], . . . suggests that although the subject of an arrest warrant could not find sanctuary in the home of the third party, the home remained a `castle or privilege' for its residents. Similarly several [common-law] commentators suggested that a search warrant, rather than an arrest warrant, was necessary to fully insulate a constable from an action for trespass brought by a party whose home was searched"); id., at 220 ("[T]he history of the Fourth Amendment strongly suggests that its Framers would not have sanctioned the instant search"). </s> The fact that the Sixth Circuit and two other Circuits had reached a contrary conclusion does not transform Steagald into a nonretroactive opinion. This Court has never suggested that resolution of a split in the Circuits [475 U.S. 469, 489] somehow means that a holding is presumptively nonretroactive in the Circuits that have disagreed with the Court's ultimate conclusion. Furthermore, the suggestion that there is a more compelling need for nonretroactivity in a civil context than in a criminal context, post, at 492-496 (POWELL, J., dissenting), ignores the fact that, in a civil context, there is not the societal cost of reversing convictions. Cf. Johnson v. New Jersey, 384 U.S. 719, 731 (1966) ("[R]etroactive application of Escobedo [v. Illinois, 378 U.S. 478 (1964),] and Miranda [v. Arizona, 384 U.S. 436 (1966),] would seriously disrupt the administration of our criminal laws. It would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards"). Additionally, Payton v. New York, 445 U.S. 573 (1980), which Steagald cites and discusses, has, of course, been held retroactive in the only context in which the Court has considered the issue. See United States v. Johnson, 457 U.S. 537 (1982). </s> [Footnote 4 Several commentators have concluded that the dicta in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), regarding respondeat superior misreads the legislative history of 1983. See, e. g., Blum, From Monroe to Monell: Defining the Scope of Municipal Liability in Federal Courts, 51 Temp. L.Q. 409, 413, n. 15 (1978) ("The interpretation adopted by the Court with respect to the rejection of vicarious liability under 1983 had been espoused prior to Monell by one author who drew a distinction between `political' 1983 cases, in which a city itself causes the constitutional violation, and `constitutional tort' 1983 cases, in which an [475 U.S. 469, 490] attempt is made to impose vicarious liability on the city for the misconduct of its employees. . . . Although this view of 1983 may represent a sensitive response to the fiscal plight of municipal corporations today, it should not be acknowledged as a legitimate interpretation of congressional intent in 1871"); Note, Section 1983 Municipal Liability and the Doctrine of Respondeat Superior, 46 U. Chi. L. Rev. 935, 936 (1979) ("[T]he purposes and legislative history of the provision demand a scheme of respondeat superior liability"); Note, Monell v. Department of Social Services: One Step Forward and a Half Step Back for Municipal Liability Under Section 1983, 7 Hofstra L. Rev. 893, 921 (1979) ("Analysis of the legislative history of section 1983 does not indicate that Congress intended to exclude respondeat superior from the act. The language of the statute similarly offers no such proof. Since both were relied on by the Court in Monell, the dicta in that decision is, at best, poorly reasoned authority for the proposition that a municipality is not liable for the unauthorized acts of its employees"); Comment, Municipal Liability under Section 1983 for Civil Rights Violations After Monell, 64 Iowa L. Rev. 1032, 1045 (1979) ("The Court's [respondeat superior] limitation . . . is not justified by the legislative history of section 1983 or by policy considerations"). </s> [Footnote 5 Newport v. Fact Concerts, Inc., 453 U.S. 247, 266 (1981); Owen v. City of Independence, 445 U.S. 622, 650 (1980). </s> [Footnote 6 The reasons for my not joining Parts II and IV of Monell, 436 U.S. at 714 (STEVENS, J., concurring in part), are also applicable to my decision not to join Part II-B of this opinion. </s> JUSTICE O'CONNOR, concurring in part and concurring in the judgment. </s> For the reasons stated by JUSTICE WHITE, I agree that the municipal officers here were acting as policymakers within the meaning of Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). As the city of Cincinnati freely conceded, forcible entry of third-party property to effect an arrest was standard operating procedure in May 1977. Given that this procedure was consistent with federal, state, and local law at the time the case arose, it seems fair to infer that respondent county's policy was no different. Moreover, under state law as definitively construed by the Court of Appeals, the county officials who opted for the forcible entry "had the authority to approve or disapprove such entries." Ante, at 485 (WHITE J., concurring). Given this combination of circumstances, I agree with JUSTICE WHITE that the decision to break down the door "sufficiently manifested county policy to warrant reversal of the judgment below." Ibid. Because, however, I believe that the reasoning of the majority goes beyond that necessary to decide the case, and because I fear that the standard the majority articulates may be misread to expose municipalities to liability beyond that envisioned by the Court in Monell, I join only Parts I and II-A of the Court's opinion and the judgment. [475 U.S. 469, 492] </s> JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting. </s> The Court today holds Hamilton County liable for the forcible entry in May 1977 by Deputy Sheriffs into petitioner's office. The entry and subsequent search were pursuant to capiases for third parties - petitioner's employees - who had failed to answer a summons to appear as witnesses before a grand jury investigating petitioner. When petitioner refused to allow the Sheriffs to enter, one of them, at the request of his supervisor, called the office of the County Prosecutor for instructions. The Assistant County Prosecutor received the call, and apparently was in doubt as to what advice to give. He referred the question to the County Prosecutor, who advised the Deputy Sheriffs to "go in and get them [the witnesses]" pursuant to the capiases. </s> This five-word response to a single question over the phone is now found by this Court to have created an official county policy for which Hamilton County is liable under 1983. This holding is wrong for at least two reasons. First, the Prosecutor's response and the Deputies' subsequent actions did not violate any constitutional right that existed at the time of the forcible entry. Second, no official county policy could have been created solely by an offhand telephone response from a busy County Prosecutor. </s> I </s> Petitioner's allegation of a constitutional violation rests exclusively on Steagald v. United States, 451 U.S. 204 (1981), decided four years after the entry here. In Steagald we held that an officer may not search for the subject of an arrest warrant in a third party's home without first obtaining a search warrant, unless the search is consensual or justified by exigent circumstances. In 1977, the law in the Sixth Circuit was that a search warrant was not required in such situations if the police had an arrest warrant and reason to believe that the person to be arrested was within the home to be [475 U.S. 469, 493] searched. United States v. McKinney, 379 F.2d 259, 262-263 (1967). That view was shared by at least two other Circuits. See United States v. Gaultney, 606 F.2d 540, 544-545 (CA5 1979); United States v. Harper, 550 F.2d 610, 612-614 (CA10), cert. denied, 434 U.S. 837 (1977). Another Circuit had favored that view in dicta. See United States v. Manley, 632 F.2d 978, 983 (CA2 1980). Thus, under the governing law in the applicable Circuit, uncontradicted by any opinion of this Court, the entry into petitioner's office pursuant to an arrest warrant was not a violation of petitioner's Fourth Amendment rights. </s> The only way to transform this search - legitimate at the time - into a constitutional violation is to apply Steagald retroactively. This would not be a startling proposition if all that petitioner sought was retroactive application of a new rule of criminal law to a direct appeal from his criminal conviction. 1 But petitioner seeks something very different - retroactive application of the new rule of criminal law announced in Steagald to his subsequent civil lawsuit. Even if one accepts the proposition that a new rule of criminal law should be applied retroactively to create a basis for civil liability under 1983, 2 existing principles of retroactivity for [475 U.S. 469, 494] civil cases show that Steagald should not be applied retroactively to this action. </s> The leading case explaining the framework of analysis for civil retroactivity is Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Under Chevron, a court must assess: (i) whether the new decision "establish[ed] a new principle of law . . . by overruling clear past precedent . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed," id., at 106; (ii) "the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation," id., at 107; and (iii) the respective inequities of retroactive or nonretroactive application, ibid. </s> When viewed in light of these factors, retroactive application of Steagald is not justified. First, Steagald overruled past Courts of Appeals precedent, and the decision had not been foreshadowed in opinions of this Court. The governing law in three Federal Circuits permitted searches of third parties' homes pursuant to an arrest warrant, see supra, at 493, and earlier decisions of this Court arguably supported such searches. 3 Second, the "purpose" of Steagald was to clarify the application of the Fourth Amendment to such searches, not to provide for money damages. Finally, retroactive [475 U.S. 469, 495] active application of Steagald in this context would produce substantial inequitable results by imposing liability on local government units for law enforcement practices that were legitimate at the time they were undertaken. See Griffin v. Illinois, 351 U.S. 12, 26 (1956) (Frankfurter, J., concurring in judgment) ("We should not indulge in the fiction that the law now announced has always been the law . . ."). Civil liability should not attach unless there was notice that a constitutional right was at risk. Procunier v. Navarette, 434 U.S. 555, 562 (1978). </s> We ought to be even more wary of applying new rules of Fourth Amendment law retroactively to civil cases than we are with new rules of civil law. The primary reason for imposing 1983 liability on local government units is deterrence, so that if there is any doubt about the constitutionality of their actions, officials will "err on the side of protecting citizens' rights." Owen v. City of Independence, 445 U.S. 622, 652 (1980). But law enforcement officials, particularly prosecutors, are in a much different position with respect to deterrence than other local government officials. Cf. Imbler v. Pachtman, 424 U.S. 409, 425 (1976). Their affirmative duty to enforce the law vigorously often requires them to take actions that legitimately intrude on individual liberties, often acting "under serious constraints of time and even information." Ibid. While law enforcement officials, as much as any other official, ought to "err on the side of protecting citizens' rights" when they have legitimate doubts about the constitutionality of their actions, they should not be deterred from doing their duty to enforce the criminal law when they have no such doubts. In this case, for example, Sixth Circuit law expressly authorized the Prosecutor's decision. Because a court engages in the same balancing of interests in a Fourth Amendment case that is required, with much less deliberation, of law enforcement officials, they are justified in relying on the judgment of the applicable federal court. Under these circumstances, there was nothing that should [475 U.S. 469, 496] have caused the officials to "harbor doubts about the lawfulness of their intended actions," Owen, supra, at 652, and therefore nothing to deter. </s> Moreover, there is a significant cost to unwarranted deterrence of law enforcement officials. We recognized in Imbler a strong state interest in "vigorous and fearless" prosecution, and found that to be "essential to the proper functioning of the criminal justice system." 424 U.S., at 427 -428. Those same general concerns apply to other law enforcement officials. Unwarranted deterrence has the undesirable effect of discouraging conduct that is essential to our justice system and protects the State's interest in public safety. In that sense, this case is different from Owen. It is no answer to say that some officials are entitled either to absolute or qualified immunity. It ignores reality to say that if petitioner is successful in his $20-million suit it will not have a chilling effect on law enforcement practices in Hamilton County. 4 </s> For these reasons, Steagald should not be applied retroactively. Consequently, petitioner has no constitutional violation of which to complain. I therefore would affirm the decision of the Court of Appeals. 5 </s> [475 U.S. 469, 497] </s> II </s> Even if Steagald is applied retroactively, petitioner has failed to demonstrate the existence of an official policy for which Hamilton County can be liable. The action said to have created policy here was nothing more than a brief response to a single question over the telephone. The Deputy Sheriffs sought instructions concerning a situation that had never occurred before, at least in the memory of the participants. Ante, at 474-475. That in itself, and the fact that the Assistant Prosecutor had to obtain advice from the County Prosecutor, strongly indicate that no prior policy had been formed. Petitioner therefore argues that the County Prosecutor's reaction in this case formed county policy. The sparse facts supporting petitioner's theory - adopted by the Court today - do not satisfy the requirement in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978), that local government liability under 1983 be imposed only when the injury is caused by government policy. </s> A </s> Under Monell, local government units may be liable only when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." 436 U.S., at 690 . This case presents the opportunity to define further what was meant in Monell by "official policy." Proper resolution of the case calls for identification of the applicable principles for determining when policy is [475 U.S. 469, 498] created. The Court today does not do this, but instead focuses almost exclusively on the status of the decisionmaker. Its reasoning is circular: it contends that policy is what policymakers make, and policymakers are those who have authority to make policy. </s> The Court variously notes that if a decision "is properly made by that government's authorized decisionmakers, it surely represents an act of official government `policy' as that term is commonly understood," ante, at 481, and that "where action is directed by those who establish governmental policy, the municipality is equally responsible . . .," ibid. Thus, the Court's test for determining the existence of policy focuses only on whether a decision was made "by the official or officials responsible for establishing final policy with respect to the subject matter in question." Ante, at 483-484. </s> In my view, the question whether official policy - in any normal sense of the term - has been made in a particular case is not answered by explaining who has final authority to make policy. The question here is not "could the County Prosecutor make policy?" but rather, "did he make policy?" By focusing on the authority granted to the official under state law, the Court's test fails to answer the key federal question presented. The Court instead turns the question into one of state law. Under a test that focuses on the authority of the decisionmaker, the Court has only to look to state law for the resolution of this case. Here the Court of Appeals found that "both the County Sheriff and the County Prosecutor [had authority under Ohio law to] establish county policy under appropriate circumstances." Ante, at 484. Apparently that recitation of authority is all that is needed under the Court's test because no discussion is offered to demonstrate that the Sheriff or the Prosecutor actually used that authority to establish official county policy in this case. [475 U.S. 469, 499] </s> Moreover, the Court's reasoning is inconsistent with Monell. Today's decision finds that policy is established because a policymaking official made a decision on the telephone that was within the scope of his authority. The Court ignores the fact that no business organization or governmental unit makes binding policy decisions so cavalierly. The Court provides no mechanism for distinguishing those acts or decisions that cannot fairly be construed to create official policy from the normal process of establishing an official policy that would be followed by a responsible public entity. Thus, the Court has adopted in part what it rejected in Monell: local government units are now subject to respondeat superior liability, at least with respect to a certain category of employees, i. e., those with final authority to make policy. See Monell, 436 U.S., at 691 ; see also Oklahoma City v. Tuttle, 471 U.S. 808, 818 (1985) (rejecting theories akin to respondeat superior) (plurality opinion). The Court's reliance on the status of the employee carries the concept of "policy" far beyond what was envisioned in Monell. </s> B </s> In my view, proper resolution of the question whether official policy has been formed should focus on two factors: (i) the nature of the decision reached or the action taken, and (ii) the process by which the decision was reached or the action was taken. </s> Focusing on the nature of the decision distinguishes between policies and mere ad hoc decisions. Such a focus also reflects the fact that most policies embody a rule of general applicability. That is the tenor of the Court's statement in Monell that local government units are liable under 1983 when the action that is alleged to be unconstitutional "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." 436 U.S., at 690 . The clear implication is that policy is created when a rule is formed that applies to all similar [475 U.S. 469, 500] situations - a "governing principle [or] plan." Webster's New Twentieth Century Dictionary 1392 (2d ed. 1979). 6 When a rule of general applicability has been approved, the government has taken a position for which it can be held responsible. 7 </s> Another factor indicating that policy has been formed is the process by which the decision at issue was reached. Formal procedures that involve, for example, voting by elected officials, prepared reports, extended deliberation, or official records indicate that the resulting decisions taken "may fairly be said to represent official policy," Monell, supra, at 694. Owen v. City of Independence, 445 U.S. 622 (1980), provides an example. The City Council met in a regularly scheduled meeting. One member of the Council made a motion to release to the press certain reports that cast an employee in a bad light. After deliberation, the Council passed the motion with no dissents and one abstention. Id., at 627-629. Although this official action did not establish a rule of general applicability, it is clear that policy was formed because of the process by which the decision was reached. </s> Applying these factors to the instant case demonstrates that no official policy was formulated. Certainly, no rule of general applicability was adopted. The Court correctly [475 U.S. 469, 501] notes that the Sheriff "testified that the Department had no written policy respecting the serving of capiases on the property of third persons and that the proper response in any given situation would depend upon the circumstances." Ante, at 474. Nor could he recall a specific instance in which entrance had been denied and forcibly gained. The Court's result today rests on the implicit conclusion that the Prosecutor's response - "go in and get them" - altered the prior case-by-case approach of the Department and formed a new rule to apply in all similar cases. Nothing about the Prosecutor's response to the inquiry over the phone, nor the circumstances surrounding the response, indicates that such a rule of general applicability was formed. 8 </s> Similarly, nothing about the way the decision was reached indicates that official policy was formed. The prosecutor, without time for thoughtful consideration or consultation, simply gave an off-the-cuff answer to a single question. There was no process at all. The Court's holding undercuts [475 U.S. 469, 502] the basic rationale of Monell, and unfairly increases the risk of liability on the level of government least able to bear it. I dissent. </s> [Footnote 1 In fact, on direct appeal from his criminal conviction, petitioner did enjoy retroactive application of the rule in Steagald, although it did not entitle him to reversal of his conviction. State v. Pembaur, 9 Ohio St. 3d 136, 459 N. E. 2d 217 (1984). While the Ohio Supreme Court did not specifically address the retroactivity issue, it did discuss the applicability of Steagald to petitioner's criminal appeal. 9 Ohio St. 3d, at 137-138, 459 N. E. 2d, at 218-219. The court reasoned, however, that because no "substantive" offense was involved, but only a conviction for obstructing the police, petitioner could not rely on the unconstitutionality of the search as a defense. Id., at 138, 459 N. E. 2d, at 219. </s> [Footnote 2 If new criminal rules are so applied, it is possible that a person could obtain the benefit of retroactive application of a new criminal rule to his civil 1983 case, even though he could not use the new rule to attack his conviction collaterally. A prisoner literally could be forced to remain in prison while collecting his civil damages award. In Shea v. Louisiana, 470 U.S. 51 (1985), the Court created a distinction between retroactivity on [475 U.S. 469, 494] direct review of a conviction and on collateral attack of a conviction that has become final. On collateral attack the principles of Solem v. Stumes, 465 U.S. 638 (1984), apply, which make it less likely that a new rule would be applied retroactively. A key factor under Stumes is the extent of the reliance by law enforcement authorities on the old standards. Id., at 643. </s> [Footnote 3 In Dalia v. United States, 441 U.S. 238 (1979), the Court rejected the argument that a separate search warrant was required before police could enter a business office to install an eavesdropping device when officers already had a warrant authorizing the eavesdropping itself. The Court noted that "in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant." Id., at 257. In Payton v. New York, 445 U.S. 573 (1980), the Court rejected the suggestion that a separate search warrant was required before police could execute an arrest warrant by entering the home of the subject of the warrant. </s> [Footnote 4 JUSTICE STEVENS misunderstands the unique posture of this case. This is not a question of retroactivity of a new civil rule to civil cases versus retroactivity of a new criminal rule to criminal cases. The special concerns discussed in the text above arise in part out of the retroactive application of a new rule of criminal law to civil cases. I see little to be gained by comparing the societal costs of civil and criminal retroactivity, see concurring opinion of STEVENS, J., ante, at 488-489, n. 3, because they can be severe in either case. Today's opinion could result in even a nonnegligent mistake in judgment imposing heavy liability on units of local government, especially now in view of the skyrocketing cost - or unavailability - of liability insurance. See also Malley v. Briggs, ante, p. 335. </s> [Footnote 5 The Court's only response to these concerns is to note that respondent has "never challenged and has in fact also conceded that Steagald applied retroactively to this case. . . . We decide this case in light of respondent's concessions." Ante, at 477, n. 5. The retroactivity issue, however, is central to this case. We need not reach the difficult federal issues in this case if the Court correctly resolved Steagald's retroactivity. [475 U.S. 469, 497] Nor are we prevented from doing so by any actual concession of the respondent. See Tr. of Oral Arg. 26-27. JUSTICE WHITE does not address the retroactivity of Steagald on the ground that the county had not relied on this contention. In my view, although we need not address this retroactivity issue, there is no question as to our right to do so - especially in view of the unfairness of holding the respondent county liable for not anticipating Steagald. Procunier v. Navarette, 434 U.S. 555, 559 , n. 6 (1978); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 320 , n. 6 (1971). </s> [Footnote 6 The focus on a rule of general applicability does not mean that more than one instance of its application is required. The local government unit may be liable for the first application of a duly constituted unconstitutional policy. </s> [Footnote 7 An example of official policy in the form of a rule of general applicability is Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). While the Court in that case was not called on to define the scope of the word "policy," the complaint was based on a rule of general applicability. The city canceled a scheduled concert pursuant to its rule of not allowing rock concerts. Plaintiffs alleged that the general rule against rock concerts violated their First Amendment rights. Even if the cancellation was the first implementation of the rule, it was clear that the city had committed itself to a general position that would govern future cases. </s> [Footnote 8 There is nothing in the record to support the inference relied on by JUSTICES WHITE and O'CONNOR. Nor has this Court ever held that because a policy has been adopted by one city or county we may assume that a similar policy has been adopted by neighboring cities or counties. After all, the city and county in this case are separate governmental entities. </s> Moreover, and again contrary to the views of my colleagues, this Court has never held - at least to my knowledge - that we may assume that simply because certain conduct is permitted by existing law, it must have been adopted as county policy. The undisputed facts in this case refute these assumptions by JUSTICES WHITE and O'CONNOR. Neither the Sheriffs who had been denied entry nor the Assistant County Prosecutor knew of any such policy. Otherwise, one of the Sheriffs would not have called the Prosecutor's office, and certainly the Assistant Prosecutor would not have thought it necessary to put the question to the Prosecutor. Nor did the Prosecutor, when asked, say that the county's policy was to force an entry when necessary to serve a valid arrest warrant. Rather, he simply said "go in and get them" - the sort of spontaneous reply that a busy official might make quite thoughtlessly. As noted above, the Sheriff testified that the proper response would depend on the circumstances. </s> [475 U.S. 469, 503]

United States Supreme Court BUSHNELL v. ELLIS(1961) No. 561 Argued: May 2, 1961Decided: May 22, 1961 </s> Judgment reversed and cause remanded to Court of Criminal Appeals of Texas to grant petitioner a hearing on his petition for writ of habeas corpus. </s> Percy D. Williams, acting under appointment by the Court, 364 U.S. 917 , argued the cause and filed a brief for petitioner. </s> B. H. Timmins, Jr., Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Will Wilson, Attorney General, and Linward Shivers, Assistant Attorney General. </s> PER CURIAM. </s> The judgment of the Court of Criminal Appeals of Texas is reversed and the cause is remanded to that court with directions to grant petitioner a hearing upon his petition for a writ of habeas corpus. Uveges v. Pennsylvania, 335 U.S. 437 ; Cash v. Culver, 358 U.S. 633 ; McNeal v. Culver, 365 U.S. 109 . </s> MR. JUSTICE STEWART took no part in the consideration or decision of this case. </s> MR. JUSTICE CLARK, with whom MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN join, dissenting. </s> This application for the issuance of a writ of habeas corpus was filed as an original action in the Court of Criminal Appeals of Texas. Neither the record, the briefs, nor argument of counsel indicates that such an action has ever been filed in a District Court of Texas as appears to be required by Texas procedure. See Ex parte Rodriguez, [366 U.S. 418, 419] 169 Tex. Cr. R. ___, 334 S. W. 2d 294 (1960); Ex parte Fitzpatrick, 167 Tex. Cr. R. 376, 320 S. W. 2d 683 (1959); Ex parte Brooks, 85 Tex. Cr. R. 397, 212 S. W. 956 (1919). The judgment of the Court of Criminal Appeals might, therefore, have been based upon an independent state ground. In this condition of the record, I would affirm the judgment without prejudice to the petitioner's filing in any appropriate Texas District Court an application for a writ of habeas corpus to test out the validity of his detention. See Vernon's Tex. Code Crim. Proc., Art. 119.

United States Supreme Court SCHILLING v. ROGERS(1960) No. 319 Argued: Decided: June 20, 1960 </s> Petitioner, an alien, brought this action in a Federal District Court to obtain judicial review of an administrative determination by the Director, Office of Alien Property, sanctioned by the Attorney General, that petitioner was not eligible under 32 (a) (2) (D) of the Trading with the Enemy Act, as amended, for the return of property vested by the Alien Property Custodian in which petitioner claimed to have an interest. Held: Judicial review of that administrative determination was precluded by 7 (c) of the Trading with the Enemy Act, which provides that, "The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter . . . transferred . . . to the Alien Property Custodian . . . shall be that provided by the terms of this Act," since that Act cannot be construed to provide a judicial remedy for a person such as petitioner. Pp. 667-677. </s> (a) Section 10 of the Administrative Procedure Act does not entitle petitioner to judicial review of this administrative determination, both because the matter involved is "committed to agency discretion" by 32 (a) of the Trading with the Enemy Act and because judicial review is precluded by 7 (c) of that Act. Pp. 670-676. </s> (b) A different conclusion is not required on the theory that, by moving to dismiss petitioner's action, respondent admitted petitioner's allegation that the administrative action was arbitrary and capricious. Pp. 676-677. </s> (c) The Declaratory Judgment Act does not entitle petitioner to judicial review, because relief thereunder is precluded by 7 (c) of the Trading with the Enemy Act. P. 677. </s> 106 U.S. App. D.C. 8, 268 F.2d 584, affirmed. </s> Henry I. Fillman argued the cause for petitioner. With him on the brief were Otto C. Sommerich and Isadore G. Alk. [363 U.S. 666, 667] </s> Assistant Attorney General Kramer argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Townsend, Irving Jaffe, George B. Searls and Victor R. Taylor. </s> MR. JUSTICE HARLAN delivered the opinion of the Court. </s> Section 32 (a) of the Trading with the Enemy Act (added by 60 Stat. 50, as amended, 50 U.S.C. App. 32 (a)) authorizes the return in certain circumstances of property vested by the United States during World War II. Under that provision: </s> "The President, or such officer or agency as he may designate, may return any property or interest vested in or transferred to the Alien Property Custodian (other than any property or interest acquired by the United States prior to December 18, 1941), or the net proceeds thereof, whenever the President or such officer or agency shall determine . . ." </s> that the following conditions are met: (1) the claimant was the owner of the property in question prior to its vesting, or is the legal representative or successor in interest of the owner; 1 (2) he was not a member of any of several excluded classes, summarized in the margin; 2 (3) the [363 U.S. 666, 668] property was not used pursuant to a "cloaking" arrangement, whereby the interest of an ineligible person in the property was concealed; 3 (4) there is no danger of liability in respect of the property attaching to the Custodian under the renegotiation statutes; 4 and (5) "such return is in the interest of the United States." 5 </s> The particular provision involved in this case is paragraph 2 (D) of 32 (a), which makes ineligible citizens of certain enemy countries who were present in those countries after the onset of hostilities, and its first proviso (added by 60 Stat. 930), which exempts from that ineligibility certain persons who were the victims of persecution. 6 </s> [363 U.S. 666, 669] The question for decision is whether the District Court had jurisdiction to review a determination of the Director, Office of Alien Property, sanctioned by the respondent Attorney General, holding this proviso inapplicable to the facts presented by the petitioner's claim. 7 </s> Petitioner, a national and resident of Germany at all material times, duly filed with the Attorney General a claim under the 32 (a) (2) (D) proviso for the return of the proceeds of certain property vested by the respondent's predecessors in 1942, 1947, and 1948, asserting an interest therein of some $68,500. He alleged that throughout the relevant period he, as an "anti-Nazi," claimed to have been a discriminated-against political group, had been deprived of full rights of German citizenship, in that he had been denied admission to the practice of law. A Hearing Examiner recommended allowance of the claim, but his recommendation was rejected by the Director on the ground that petitioner was ineligible for relief under the 32 (a) (2) (D) proviso. 8 The Attorney General [363 U.S. 666, 670] refused review. Petitioner then sued in the District Court to review the administrative determination, claiming it to have been arbitrary and illegal. The court denied the Government's motion to dismiss the complaint for want of jurisdiction. The Court of Appeals reversed, holding, in line with its own prior course of decisions, that judicial review of the administrative disposition was precluded by 7 (c) of the Trading with the Enemy Act. 106 U.S. App. D.C. 8, 268 F.2d 584. Because of the importance of the question in the proper administration of the Trading with the Enemy Act we brought the case here. 361 U.S. 874 . For reasons given hereafter we affirm the judgment below. </s> Petitioner's principal reliance is upon 10 of the Administrative Procedure Act which provides for judicial review of agency action "[e]xcept so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion." 60 Stat. 243, 5 U.S.C. 1009. We find that both such limitations are applicable here. </s> Section 7 (c) of the Act provides: </s> "The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter . . . transferred . . . to the Alien Property Custodian . . . shall be that provided by the terms of this Act . . . ." 40 Stat. 1021. </s> We perceive no basis for petitioner's contention that 7 (c) limits only the remedies available to nonenemies under 9 (a), or for construing 7 (c), passed in 1918, as not being applicable to 32, passed in 1946. The language of the section is "all-inclusive," Becker Steel Co. v. Cummings, 296 U.S. 74, 79 , and it speaks to the future [363 U.S. 666, 671] as well as the past. See also Central Union Trust Co. v. Garvan, 254 U.S. 554, 568 . </s> The only express provision in the Trading with the Enemy Act for recourse to the courts by those claiming the return of property vested during World War II is that contained in 9 (a). That section, however, is applicable only to persons not enemies or allies of enemies as defined in the relevant statutes, and hence is not available to this petitioner, an enemy national. 9 While 9 (c) also entitles certain classes of "enemies" enumerated in 9 (b) similarly to sue in the courts to recover vested property whose return is authorized under 9 (b), those sections apply only to World War I vestings. See Feyerabend v. McGrath, 89 U.S. App. D.C. 33, 189 F.2d 694; cf. Markham v. Cabell, 326 U.S. 404 . Although 32 (a) broadened the categories of those having an enemy status who were eligible for the return of property vested during World War II, unlike 9 (c) it contains no express provision for judicial relief in respect of such claims. </s> The question then is whether a right to such relief can fairly be implied, for we shall assume that if such be the case the requirements of 7 (c) would be satisfied. The terms of 32 and its legislative history speak strongly against any such implication. The absence in 32 of any provision for judicial relief respecting "enemy" claims for the return of property vested during World War II stands in sharp contrast to the presence of such a provision in [363 U.S. 666, 672] 9 (c) with respect to certain enemy claims arising out of World War I vestings. The original version of what ultimately became 32 did contain a provision for judicial relief comparable to that in 9 (c), not applicable, however, to property of enemy national-residents, as well as a "sole relief and remedy" provision comparable to that in 7 (c) - H. R. 4840, 32 (b), (c), in Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives on H. R. 4840, 78th Cong., 2d Sess., pp. 1-2 - but the subsequent draft of the bill, substantially in the form as finally enacted in March 1946 (60 Stat. 50), omitted both provisions. See H. R. 3750, in Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H. R. 3750, 79th Cong., 1st Sess., pp. 1-2. While the legislative record contains no explanation of these omissions, the committee hearings on H. R. 3750 and those on subsequent amendments to the Act preclude the view that it was contemplated that persons having an enemy status, still less those who were nationals and residents of enemy countries, should have the right of recourse to the courts with respect to administrative denials of return claims. </s> Speaking to H. R. 3750 at the initial committee hearing, Mr. Markham, then Alien Property Custodian, stated: </s> "I want to be sure I make this clear. Supposing a person applies to the Custodian for the return of a property, and for reasons that I deem appropriate under the bill I refuse to return the property. Now, we will say this person would have to be a technical enemy, a Frenchman. He has no right to compel me to return it under this bill." Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H. R. 3750, 79th Cong., 1st Sess., p. 14; see also pp. 11, 15. [363 U.S. 666, 673] </s> And when a few months later, in August 1946, various amendments to the statute were considered and the 32 (a) (2) (D) proviso was added (60 Stat. 930), 32 came under severe criticism because of the absence of provisions for judicial relief in respect of return claims by technical enemies. See Hearings before a Subcommittee of the Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess., pp. 57-59, 61, 62-63. The affording of such relief to enemy nationals was, however, at no time suggested. Congress, nevertheless, permitted 32 to stand without enacting provisions for such judicial relief, 10 and later proposed legislation of that character also failed of enactment. See S. 2544, 82d Cong., 2d Sess.; S. 34, 83d Cong., 1st Sess. 11 </s> [363 U.S. 666, 674] </s> The conclusion which the history of 32 impels is confirmed by the text of the section and other provisions of the Act. The absence of any provision for recourse to the courts in connection with 32 (a) return claims contrasts strongly with the care that Congress took to provide for and limit judicial remedies with respect to other aspects of the section and other provisions of the Act. See, e. g., 32 (d), 32 (e), 32 (f), 12 33, 34 (e), 34 (f), 34 (i). It is not of moment that these provisions concerned direct judicial relief, and not court review of denials of administrative relief. The point is that in this Act Congress was advertent to the role of courts, and an absence in any specific area of any kind of provision for judicial participation strongly indicates a legislative purpose that there be no such participation. Beyond this, the permissive terms in which the 32 return provisions are drawn (ante, p. 667) persuasively indicate that their administration was committed entirely to the discretionary judgment of the Executive branch "without the intervention of the courts." See Work v. Rives, 267 U.S. 175, 182 . </s> Petitioner, however, relying on McGrath v. Kristensen, 340 U.S. 162 , contends that even though he might not be entitled to judicial review of an adverse administrative determination on the merits of his claim, he is nonetheless [363 U.S. 666, 675] entitled to such review on the issue of his eligibility under the 32 (a) (2) (D) proviso, the only issue here involved. The Kristensen case, involving eligibility for suspension of deportation under 244 of the Immigration and Nationality Act (66 Stat. 214, 8 U.S.C. 1254), bears little resemblance to the situation involved here. See Heikkila v. Barber, 345 U.S. 229, 233 ; Switchmen's Union v. National Mediation Board, 320 U.S. 297, 301 . The structure of 32 (a) does not permit of any such distinction in this case. Compare H. R. 4840, 78th Cong., 2d Sess., 32 (a). Indeed, it is not certain whether petitioner's theory of partial reviewability would apply only to the proviso with which he is concerned; to all of paragraph (2), but only to that paragraph; or to paragraphs (1), (3), and (4) as well (see pp. 667-668, and notes 1-4, ante). None of these alternatives is acceptable. As to the first and second, no reason appears why either of these categories should be singled out for special treatment, while the third would make reviewable determinations which involve factors with which only the Executive Branch can satisfactorily deal. See, e. g., Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H. R. 3750, 79th Cong., 1st Sess., p. 4 (proof of pre-vesting ownership); Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H. R. 5089, 79th Cong., 2d Sess., p. 37 (proof of "cloaking" arrangements). Beyond that, we think the congressional decision to spell out in some detail certain limitations on the power it was conferring on the Executive was not designed to bestow rights on claimants, arising out of an assertedly too-narrow reading by the Executive of the discretionary power given him. Rather we consider the specifications of paragraphs (1) through (4) as designed to provide guides for the Executive, thereby lessening the administrative burden of decision. See Hearings before a [363 U.S. 666, 676] Subcommittee of the Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess., p. 19. </s> We conclude that the Trading with the Enemy Act excludes a judicial remedy in this instance, and that because of this, as well as because of the discretionary character of the administrative action involved, the Administrative Procedure Act, by its own terms (ante, p. 670), is unavailing to the petitioner. 13 </s> Petitioner's other contentions may be dealt with shortly. It is urged that judicial review is in any event available because the complaint, whose allegations as the case comes here must be taken as true, alleges that the administrative action was arbitrary and capricious. However, such conclusory allegations may not be read in isolation from the complaint's factual allegations and the considerations set forth in the administrative decision upon which denial of this claim was based. See Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 401 . So read, it appears that the complaint should properly be taken as charging no more than that the administrative action was erroneous. This is not a case in which it is charged either that an administrative official has refused or failed to exercise a statutory discretion, or that he has [363 U.S. 666, 677] acted beyond the scope of his powers, where the availability of judicial review would be attended by quite different considerations than those controlling here. Cf., e. g., Accardi v. Shaughnessy, 347 U.S. 260 ; Leedom v. Kyne, 358 U.S. 184 . </s> Finally, petitioner's reliance on the Declaratory Judgment Act carries him no further. Section 7 (c) of the Trading with the Enemy Act embraces that form of judicial relief as well as others. Additionally, the Declaratory Judgment Act is not an independent source of federal jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 ; the availability of such relief presupposes the existence of a judicially remediable right. No such right exists here. </s> We conclude that the Court of Appeals correctly held that the District Court lacked jurisdiction over this action, and that its judgment must be </s> Affirmed. </s> Footnotes [Footnote 1 32 (a) (1): "That the person who has filed a notice of claim for return, in such form as the President or such officer or agency may prescribe, was the owner of such property or interest immediately prior to its vesting in or transfer to the Alien Property Custodian, or is the legal representative (whether or not appointed by a court in the United States), or successor in interest by inheritance, devise, bequest, or operation of law, of such owner . . . ." </s> [Footnote 2 32 (a) (2) disqualifies: (A) the Governments of Germany, Japan, Bulgaria, Hungary, and Rumania; (B) corporations or associations organized under the laws of such nations; (C) persons voluntarily resident since Dec. 7, 1941, in any such nation, other than American citizens, certain diplomatic officers, or certain persecuted persons; (D) citizens of such nations, other than certain persecuted [363 U.S. 666, 668] persons, who were present or engaged in business there between Dec. 7, 1941, and Mar. 8, 1946; and (E) certain foreign corporations or associations which, after Dec. 7, 1941, were controlled by persons falling within the above categories. </s> [Footnote 3 32 (a) (3): "that the property or interest claimed, or the net proceeds of which are claimed, was not at any time after September 1, 1939, held or used, by or with the assent of the person who was the owner thereof immediately prior to vesting in or transfer to the Alien Property Custodian, pursuant to any arrangement to conceal any property or interest within the United States of any person ineligible to receive a return under subsection (a) (2) of this section . . . ." </s> [Footnote 4 32 (a) (4): "that the Alien Property Custodian has no actual or potential liability under the Renegotiation Act or the Act of October 31, 1942 (56 Stat. 1013; 35 U.S.C. 89-96), in respect of the property or interest or proceeds to be returned and that the claimant and his predecessor in interest, if any, have no actual or potential liability of any kind under the Renegotiation Act or the said Act of October 31, 1942; or in the alternative that the claimant has provided security or undertakings adequate to assure satisfaction of all such liabilities or that property or interest or proceeds to be retained by the Alien Property Custodian are adequate therefor . . . ." </s> [Footnote 5 32 (a) (5). </s> [Footnote 6 32 (a) (2) (D) disqualifies: "an individual who was at any time after December 7, 1941, a citizen or subject of Germany, Japan, Bulgaria, Hungary, or Rumania, and who on or after December 7, 1941, and prior to the date of the enactment of this section, was present [363 U.S. 666, 669] (other than in the service of the United States) in the territory of such nation or in any territory occupied by the military or naval forces thereof or engaged in any business in any such territory: Provided, That notwithstanding the provisions of this subdivision return may be made to an individual who, as a consequence of any law, decree, or regulation of the nation of which he was then a citizen or subject, discriminating against political, racial, or religious groups, has at no time between December 7, 1941, and the time when such law, decree, or regulation was abrogated, enjoyed full rights of citizenship under the law of such nation . . . ." </s> [Footnote 7 On May 16, 1946, the President delegated his functions under 32 (a) to the Alien Property Custodian. Exec. Order No. 9725, 11 Fed. Reg. 5381. On Oct. 15, 1946, the functions of the Custodian were transferred to the Attorney General. Exec. Order No. 9788, 11 Fed. Reg. 11981. </s> [Footnote 8 The Director stated the essence of his decision as follows: "Even if it were to be assumed that denial of a license to practice law deprived claimant of full rights of citizenship, his claim must be disallowed for the reason that he was not a member of a political, [363 U.S. 666, 670] racial or religious group that was discriminated against. Anti-Nazis and non-Nazis do not constitute a political group." (Citing past administrative decisions.) </s> [Footnote 9 Section 9 (a) authorizes "[a]ny person not an enemy or ally of enemy" (defined in 2 of the Act, as supplemented by the First War Powers Act, 1941, 55 Stat. 838) to sue in equity for the return of vested property in which he claims an interest, either in the District Court for the District of Columbia or in the District Court of the district in which the claimant resides. 40 Stat. 419, as amended, 50 U.S.C. App. 9 (a). As a German national and resident, petitioner is concededly an "enemy" under the statute. </s> [Footnote 10 At the same time, however, Congress enacted other provisions relating to judicial remedies, 33 providing a statute of limitations on the commencement of suits under 9, and 34 providing for judicial review of administrative determinations on debt claims allowable out of vested property (60 Stat. 925). In connection with the former section there was spread in the Congressional Record, with the approval of the Chairman and Ranking Member of the House Judiciary Committee, a letter from the Custodian stating his understanding that "this amendment is not to be regarded as implying that there is judicial review under section 32." 92 Cong. Rec. 10486. Similarly, in connection with the enactment of 32, a few months before, Congress had added to the Act 20 providing for judicial review of administrative allowances of counsel fees in return proceedings before the Custodian, 60 Stat. 54. See also S. Rep. No. 920, 79th Cong., 2d Sess., p. 7. </s> [Footnote 11 More particularly with reference to the 32 (a) (2) (D) proviso, neither the Committee hearings preceding its enactment, see Hearings before a Subcommittee of the Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess.; cf. Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H. R. 5089, 79th Cong., 2d Sess., nor later Senate or House Reports referring to the proviso - see S. Rep. No. 784, 81st Cong., 1st Sess.; H. R. Rep. No. 2338, 81st Cong., 2d Sess.; S. Rep. No. 600, 82d Cong., 1st Sess.; Final Report of the Subcommittee on [363 U.S. 666, 674] Administration of the Trading with the Enemy Act, Senate Committee on the Judiciary, pursuant to S. Res. 245, 82d Cong., 2d Sess., as amended by S. Res. 47, and S. Res. 120, 83d Cong., 1st Sess. - contain any suggestion that judicial review was contemplated in connection with such claims. </s> [Footnote 12 This section, which requires the Custodian to publish in the Federal Register a 30-day notice of his intention to return vested property to claimants other than residents of the United States or domestic corporations, provides that publication of such notice "shall confer no right of action upon any person to compel the return of any such property," and further that any such notice may be revoked by the Custodian by appropriate publication in the Federal Register. </s> [Footnote 13 The fact that in a third-party suit affecting returned property, the courts must, in accordance with 32 (e), determine, if relevant, the claimant's eligibility under the 32 (a) (2) (D) proviso, does not militate against this conclusion. First, it is far from clear that in such circumstances the doctrine of primary jurisdiction would not call for a referral of that issue to the Attorney General. Cf. United States Navigation Co. v. Cunard S. S. Co., 284 U.S. 474 ; Far East Conference v. United States, 342 U.S. 570 ; Maritime Board v. Isbrandtsen, 356 U.S. 481, 496 -498. Moreover, even if necessity compelled judicial determination in suits between private parties of the issue ordinarily disposed of under 32 (a), we would not be justified, in the context of the other provisions of this statute, in inferring from that a congressional willingness to have Executive determinations reviewed in court. </s> MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE DOUGLAS join, dissenting. </s> This Court has gone far towards establishing the proposition that preclusion of judicial review of administrative action adjudicating private rights is not lightly to be inferred. See Leedom v. Kyne, 358 U.S. 184 ; Harmon v. Brucker, 355 U.S. 579 ; Stark v. Wickard, 321 U.S. 288 ; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 . Generalizations are dangerous, but with some safety one can say that judicial review of such administrative action is the rule, and nonreviewability an exception which must be demonstrated. 1 To be sure, a clear command of the statute will preclude review; and such a command of the statute may be inferred from its purpose, [363 U.S. 666, 678] though Leedom v. Kyne, supra, where I thought nonreviewability proved from the congressional purpose, shows that the Court is far from quick to draw such a conclusion. I cannot agree that the statute here gives any clear direction that this administrative determination that as a matter of law petitioner was ineligible for the exercise of discretionary relief under 32 (a) should not be reviewable by the courts. Questions as to the scope of that review, of course, are not now before us; simply whether the power exists at all. </s> Section 7 (c) of the Act states that the Act's remedies shall be "[t]he sole relief and remedy" of claimants of vested property, and, to be sure, this language is "all-inclusive," Becker Steel Co. v. Cummings, 296 U.S. 74, 79 . Let us, then, take a close and fully-focused look at what those remedies include, and compare them with what petitioner seeks. </s> Section 9 (a) of the Act, under which petitioner of course makes no claim, provides a judicial remedy for those who are not enemies and not allies of enemies; they may sue in equity for the return of their property. 2 Section [363 U.S. 666, 679] 9 (c) gives the same remedy to certain classes of enemies. 3 But it is apparent from both these provisions that they contemplate an independent judicial remedy - a suit to return property; not an action to review certain determinations of administrative officers. There is not even a provision that application must be made for administrative [363 U.S. 666, 680] relief before suit is brought. There simply is a requirement for the filing of a notice of claim, which the statute clearly distinguishes from making an application for an administrative return, the latter being optional. Draeger Shipping Co. v. Crowley, 49 F. Supp. 215; Duisberg v. Crowley, 54 F. Supp. 365. See Stoehr v. Wallace, 255 U.S. 239, 246 . Even where the applicant chooses to seek an administrative return, suit may be instituted before the administrative action is completed. The administrative remedy and the judicial remedy are each completely independent of the other; Congress has made this clear even to the extent of putting an "and/or" on the statute books. In no sense, then, can the independent judicial remedy of 9 be said to be a judicial review of administrative action. It is independent of any administrative action's being taken. It requires the courts to make a plenary, de novo adjudication of all the controverted issues as they would in any lawsuit between citizens. </s> Section 32 (a), under which petitioner has applied for relief, on the other hand provides simply for an administrative remedy. That it does, of course, under 7 (c) precludes the inference of any independent judicial remedy such as 9 provides. But there is no reason why it should preclude the inference that administrative action taken under it should be subject to judicial review. The courts have developed many principles defining and limiting the quantum of judicial review that may be afforded administrative adjudication. This generally narrow character of judicial review, in contrast to an independent lawsuit directed at the same end as an administrative adjudication, points up the distinction between the independent action under 9 and what is contended for here. In the latter, the courts cannot order the return of the property. They simply may say that the administrator cannot stand on the ground he gave for not returning it. [363 U.S. 666, 681] See Greene v. McElroy, 360 U.S. 474, 510 (concurring opinion). The former is clearly precluded, but the latter hardly is. The approach to interpretation that cases like Kyne, Harmon and Stark symbolize should indicate that judicial review of the administrative action under 32 (a) is available. Section 7 (c) is by no means offended by this since this construction recognizes that the sole remedy under 32 (a) is administrative in nature, but attaches to that administrative remedy the general attribute of administrative remedies in our system - judicial review. </s> The Court points to the legislative history of 32 (a) as indicating a contrary conclusion. It says that a judicial remedy was originally provided for in early versions of the bill which added 32 (a) to the statute, but that the final enactment omitted it. This would be very relevant if what had been originally contained in the bill had been a provision for judicial review of action taken under 32 (a), such as what petitioner now contends is implicit. But it was not; it was rather a provision for an independent judicial remedy, patterned entirely in the style of 9. 4 </s> [363 U.S. 666, 682] That it was omitted of course adds another proof that there can be no independent judicial action to get a return under 32 (a); but it does not tell us that normal judicial review into administrative action under 32 (a) is to be foreclosed. Mr. Markham's remarks, quoted by the Court, are of course explicable on the ground that there was no counterpart of 9's provision for an independent lawsuit in 32 (a). In fact, they were spoken in response to a question whether "the individual whose property has been taken or affected can appeal to the courts of the land to have his equity determined." Hearing before Subcommittee No. 1, Committee on the Judiciary, House of Representatives, on H. R. 3750, 79th Cong., 1st Sess., p. 13. The question is a good description of the functions of courts under 9. It does not describe the functions of courts exercising a review function of administrative action under 32 (a). The subsequent legislation which the Court mentions as having failed of passage, S. 2544, 82d Cong., 2d Sess.; S. 34, 83d Cong., 1st Sess., was not legislation to provide judicial review, but to afford an independent judicial remedy similar to 9. 5 Thus it is apparent that the alternative that was presented to Congress and rejected clearly enough was not ordinary judicial review of determinations under 32 (a), but independent judicial action of a sort comparable to 9's. </s> The Court does not demonstrate any policy on which Congress may have been acting and from which it might be inferred that judicial review was impliedly precluded under 32. Congress clearly precluded independent lawsuits, [363 U.S. 666, 683] but there is no demonstration that it acted in pursuance of any purpose which would be broad enough impliedly to negate judicial review of administrative action as well. So there is no reason why the general principle should not apply: "Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers." Harmon v. Brucker, supra, at 581-582. </s> There is then clearly established jurisdiction to review under the general principles which find expression in 10 of the Administrative Procedure Act; the statute does not "preclude judicial review." 60 Stat. 243, 5 U.S.C. 1009. But the Court also holds that, within the meaning of 10, "agency action is by law committed to agency discretion." Since want of jurisdiction in the District Court is found, I take it the Court holds that the question, review of which is now sought, which is an issue of statutory construction, is totally and exclusively for the administrative officers to determine - not simply that the courts are to give their determination of this question of law considerable weight. Cf. Labor Board v. Hearst Publications, Inc., 322 U.S. 111, 130 ; Gray v. Powell, 314 U.S. 402, 411 . Once it is established that the statute does not preclude judicial review, this conclusion seems to me untenable. The issue is a question of law; the construction of a detailed and moderately specified standard. It is not like the ultimate determination that the return be "in the interest of the United States," 32 (a) (5), which is clearly where the ultimate reservoir of discretion lies under 32 (a). This determination was never reached. We need not speculate about the breadth of judicial inquiry in judicial review where the administrative decision not to return the property is based on that ground, or is based on one of the other grounds under the statute. The quantum of review can be adjusted to the problem before the courts. Here the determination not [363 U.S. 666, 684] to return was based on a holding that petitioner did not come within the first proviso to 32 (a) (2) (D). The proviso's terms were viewed administratively not as guides to an administrative discretion but as legal standards. Under commonplace principles, the determination must stand or fall on that basis. It may be that the novelty of the standards of that proviso (see Subcommittee Hearings, Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess., p. 19) should teach the courts to give considerable weight to the administrative construction of the law. But that is not to say, as the Court does, that it is so much a matter of administrative discretion as to preclude judicial review. 6 To my mind, McGrath v. Kristensen, 340 U.S. 162 , is squarely in point. There there was a statute which bristled with discretion as much as this one. But where the administrative decision under it was not rendered on the basis for the exercise of discretion the statute provided, but as a matter of law, judicial review was available. We retreat from established principles of administrative law when we say it is unavailable here. The judgment of the Court of Appeals should be reversed, and the order of the District Court declining to dismiss the complaint for want of jurisdiction should be affirmed. </s> [Footnote 1 See Jaffe, The Right to Judicial Review, 71 Harv. L. Rev. 401, 432. </s> [Footnote 2 In pertinent part, 9 (a) provides: </s> "(a) Any person not an enemy or ally of enemy claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States, or to whom any debt may be owing from an enemy or ally of enemy whose property or any part thereof shall have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the treasurer of the United States may file with the said custodian a notice of his claim under oath and in such form and containing such particulars as the said custodian shall require; and the President, if application is made therefor by the claimant, may order the payment, conveyance, transfer, assignment, or delivery to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States, or of the interest therein to which the President shall determine [363 U.S. 666, 679] said claimant is entitled: Provided, That no such order by the President shall bar any person from the prosecution of any suit at law or in equity against the claimant to establish any right, title, or interest which he may have in such money or other property. If the President shall not so order within sixty days after the filing of such application or if the claimant shall have filed the notice as above required and shall have made no application to the President, said claimant may institute a suit in equity in the United States District Court for the District of Columbia or in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment, conveyance, transfer, assignment, or delivery to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States or the interest therein to which the court shall determine said claimant is entitled. . . ." 40 Stat. 419, as amended, 50 U.S.C. App. 9 (a). </s> [Footnote 3 Section 9 (c) provides: </s> "(c) Any person whose money or other property the President is authorized to return under the provisions of subsection (b) hereof may file notice of claim for the return of such money or other property, as provided in subsection (a) hereof, and thereafter may make application to the President for allowance of such claim and/or may institute suit in equity to recover such money or other property, as provided in said subsection, and with like effect. The President or the court, as the case may be, may make the same determinations with respect to citizenship and other relevant facts that the President is authorized to make under the provisions of subsection (b) hereof." As added, 41 Stat. 980, as amended, 50 U.S.C. App. 9 (c). </s> The relevant classes of enemies are set forth in 9 (b). Petitioner makes no claim under 9 (c). </s> [Footnote 4 In fact, the independent judicial remedy was not even put in pari materia with the administrative remedy under 32 (a). It simply provided: </s> "After filing a claim with the Alien Property Custodian pursuant to subsection (a) hereof, a claimant may institute a suit in equity in the United States District Court for the District of Columbia or in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Custodian shall be made a party defendant), to establish that he is not a foreign country or national thereof as defined pursuant to subsection (b) of section 5 hereof, and to establish the interest, right, or title claimed. The claimant shall obtain a judgment or decree ordering the return to him of the interest, right, or title to which the court shall determine he is entitled, but only if the court shall adjudicate that he is not a foreign country or national thereof . . . ." 32 (b), H. R. 4840, in Hearing before Subcommittee No. 1, Committee on the Judiciary, House of Representatives, on H. R. 4840, 78th Cong., 2d Sess., pp. 1-2. </s> [Footnote 5 This legislation seems to have contemplated a judicial remedy much broader than that of the early provisions before the addition of 32, see note 4, supra. The bills covered "[a]ny person eligible for a return under this section" ( 32) and provided that such a person, after filing a notice of claim, might "institute a suit in equity to recover such money or other property in the manner provided by subsection 9 (a) hereof and with like effect." </s> [Footnote 6 One of the grounds on which the administrative officials may decline return under 32 (a) is that the claimant was not the owner of the property at the time it was vested, or the successor thereof. 32 (a) (1). Is this simply to be deemed a guide to the administrative discretion in granting returns, or a legal standard? </s> [363 U.S. 666, 685]

United States Supreme Court IRS v. FLRA(1990) No. 88-2123 Argued: January 8, 1990Decided: April 17, 1990 </s> During collective-bargaining negotiations, respondent National Treasury Employees Union (NTEU) proposed that contractual grievance and arbitration provisions be designated as the "internal appeals procedure" required for employee complaints by an Office of Management and Budget (OMB) Circular relating to the "contracting out" of work. Petitioner Internal Revenue Service (IRS) refused to bargain over the proposal, claiming that its subject matter was nonnegotiable under Title VII of the Civil Service Reform Act of 1978 (Act), 5 U.S.C. 7101 et seq. The Federal Labor Relations Authority (FLRA), which is charged with administering the Act, held that the IRS was required to negotiate over the NTEU proposal by 7114, which requires agency management and employee unions to bargain in good faith to reach an agreement, and by 7121, which specifies that such agreements must contain grievance-settlement procedures. </s> Held: </s> The FLRA erred in holding that the Act requires the IRS to bargain over the NTEU proposal. Pp. 926-934. </s> (a) The plain text of 7106(a)(2)(B) - which provides that " nothing in this [Act] shall affect the authority of [agency management officials] in accordance with applicable laws . . . to make [contracting-out] determinations" (emphasis added) - demonstrates that the section supersedes 7121. P. 928. </s> (b) The arguments presented by the FLRA to overcome 7106(a) (2)(B)'s plain meaning lack merit. First, 7121(c), which exempts certain appointment, suspension, and removal decisions from the grievance requirements, is not rendered superfluous if such decisions are already insulated from those requirements by 7106(a), subsection (2)(A) of which refers to those same decisions as protected management rights. Although the two provisions sometimes overlap, each also has a distinct effect on such decisions: 7121(c) removes them from the coverage of only the grievance provisions regardless of whether they are made in accordance with applicable laws, while 7106 removes them from the coverage of the entire Act, but only if they are made in accordance with such laws. Second, agency management cannot be subjected to grievance procedures over the exercise of reserved rights on the theory that 7121 [494 U.S. 922, 923] is among the "applicable laws" referred to in 7106(a)(2), since that phrase clearly refers to laws outside the Act. Third, 7106(a) is applicable even though the NTEU proposal would not establish any substantive limitation on management's contracting-out decisions, but would only provide for the enforcement of "external limitations" on those decisions contained in the OMB Circular's mandatory and nondiscretionary provisions. Insofar as union rights are concerned, it is entirely up to the IRS whether it will comply at all with the Circular's requirements, except to the extent that such compliance is required by an "applicable law." Fourth, it is not reasonable to interpret the latter phrase as being synonymous with the term "any law, rule, or regulation" in 7103(a)(9) (C)(ii), which defines "grievance" as a claimed "violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." (Emphasis added.) Thus, it cannot be said that all agency contracting decisions that violate rules or regulations are, by definition, "not in accordance with applicable laws." Pp. 928-932. </s> (c) This Court will not decide in the first instance whether the OMB Circular is an "applicable law" under 7106(a)(2). Pp. 932-933. </s> (d) The question whether 7117(a) - which provides that the "duty to bargain . . . shall, to the extent not inconsistent with . . . any Government-wide rule or regulation, extend to matters which are the subject of any [non-Government-wide] rule or regulation" (emphasis added) - renders the FLRA proposal nonnegotiable as inconsistent with "no arbitration" language in the OMB Circular is not properly presented, since it was not raised or considered by the court below. Nor will this Court consider whether the FLRA properly held the Circular to be a "rule" or "regulation" within 7103(a)(9)'s meaning, since the IRS did not argue that question here. P. 934. </s> 274 U.S. App. D.C. 135, 862 F.2d 880, reversed and remanded. </s> SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, and KENNEDY, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 934. STEVENS, J., filed a dissenting opinion, post, p. 937. </s> Deputy Solicitor General Shapiro argued the cause for petitioner. With him on the briefs were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Harriet S. Shapiro, William Kanter, and Thomas M. Bondy. </s> Robert J. Englehart argued the cause for respondent Federal Labor Relations Authority. With him on the brief were William E. Persina and Arthur A. Horowitz. Gregory [494 U.S. 922, 924] O'Duden argued the cause for respondent National Treasury Employees Union. With him on the brief were Elaine Kaplan and Clinton Wolcott. * </s> [Footnote * Mark D. Roth, Stuart A. Kirsch, Walter Kamiat, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance. </s> JUSTICE SCALIA delivered the opinion of the Court. </s> In this case we review the determination of the Federal Labor Relations Authority (FLRA or Authority) that, under Title VII of the Civil Service Reform Act of 1978 (Act), 5 U.S.C. 7101 et seq., the Internal Revenue Service (IRS) must bargain with the National Treasury Employees Union (NTEU or Union) over a proposed contract provision subjecting to grievance and arbitration procedures claims that the IRS had failed to comply with an Office of Management and Budget (OMB) Circular relating to the "contracting out" of work. </s> I </s> Title VII of the Civil Service Reform Act establishes a collective-bargaining system for federal agencies and their employees, under the administration of the FLRA. The Act recognizes the right of federal employees to form and join unions, 5 U.S.C. 7102, and imposes upon management officials and employee unions the duty to "negotiate in good faith for the purposes of arriving at a collective bargaining agreement." 7114(a)(4). A collective-bargaining agreement must provide procedures "for the settlement of grievances," 7121(a)(1), which are defined as "complaint[s] . . . concerning . . . any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment," 7103(a)(9)(C)(ii); and the agreement must "provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration" which may be invoked by either party. [494 U.S. 922, 925] 7121(b)(3)(C). The agency's duty to bargain is qualified, however, in one pertinent respect. The Act reserves to management officials the authority "in accordance with applicable laws . . . to make determinations with respect to contracting out." 7106(a)(2)(B). </s> Office of Management and Budget Circular A-76 generally directs federal agencies to "contract out" to the private sector their non-"governmental" activities (e. g., data processing) unless certain specified cost comparisons indicate that the activities can be performed more economically "in house." Executive Office of the President, OMB Circular A-76, as revised, 48 Fed. Reg. 37110 (1983). The Circular also requires agencies to establish an administrative appeals procedure to resolve complaints by employees or private bidders relating to "determinations resulting from cost comparisons performed in compliance with [the] Circular," or relating to decisions to contract out where no cost comparison is required. OMB Circular A-76, Supp. I-14, I-15 (1983). </s> During the course of contract negotiations with the IRS, respondent NTEU put forward a proposal that, with respect to contracting-out decisions employees wished to contest, the "grievance and arbitration" provisions of the collective-bargaining agreement would constitute the "internal appeals procedure" required by the Circular. 1 The IRS refused to bargain over this proposal, taking the position that its subject matter was nonnegotiable under the Act. The Union then petitioned for review by the Authority, which is empowered [494 U.S. 922, 926] by the Act to "resolv[e] issues relating to the duty to bargain." 7105(a)(2)(E); see 7117(c). </s> The FLRA held that the IRS was required by 7114 and 7121 to negotiate over the proposal. In its view the IRS' failure to comply with Circular A-76 would be a "violation . . . of [a] law, rule, or regulation" affecting "conditions of employment," so that an employee complaint on the matter would qualify as a "grievance" for which procedures must be specified in the collective-bargaining agreement. 27 F. L. R. A. 976, 978-979 (1987). The FLRA found that the union's proposal was not precluded by 7106(a)(2)(B)'s reservation of management authority over contracting-out determinations, because it "would only contractually recognize external limitations on management's right." Id., at 978. 2 </s> The Court of Appeals for the District of Columbia Circuit affirmed the Authority's decision. 274 U.S. App. D.C. 135, 862 F.2d 880 (1988). We granted certiorari. 493 U.S. 807 (1989). </s> II </s> The management rights provision of the Act provides, in pertinent part: </s> "(a) [N]othing in this chapter [i. e., the Act] shall affect the authority of any management official of any agency - </s> . . . . . </s> "(2) in accordance with applicable laws - </s> "(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in [494 U.S. 922, 927] grade or pay, or take other disciplinary action against such employees; </s> "(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted; </s> "(C) with respect to filling positions, to make selections for appointments from - </s> "(i) among properly ranked and certified candidates for promotion; or </s> "(ii) any other appropriate source . . . ." 5 U.S.C. 7106 (emphasis added). </s> In the proceedings below and again before this Court, the IRS has argued that even when an agency's decision to contract out violates OMB Circular A-76 it is still a decision "in accordance with applicable laws" and is thus immunized by the foregoing provisions from contractually imposed substantive controls - rendering the proposal here nonbargainable. 3 According to the IRS, the Circular is not a law, but an internal Executive Branch directive to agency officials regarding matters of office management. </s> The FLRA's position is that the management rights provisions of 7106 do not trump 7121, which entitles the union to negotiate and enforce procedures for resolving any "grievance" as defined in 7103 - that is, any claimed "violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." 5 U.S.C. 7103(a) (9)(C)(ii) (emphasis added). Thus, according to the [494 U.S. 922, 928] FLRA, it makes no difference whether OMB Circular A-76 is an "applicable law"; so long as it is a "law, rule, or regulation" within the meaning of 7103(a)(9)(C)(ii), 7106(a) does not bar mandatory negotiation over NTEU's proposal. This, it appears, has been the FLRA's consistent position. See, e. g., AFSCME Local 3097 v. Department of Justice, Justice Management Div., 31 F. L. R. A. 322, 338 (1988) ( 7106(a) reserves to management the right to make contracting-out decisions only when they are "in accordance with all applicable laws and regulations"); GSA v. American Federation of Government Employees, AFL-CIO Nat. Council 236, 27 F. L. R. A. 3, 6 (1987) ( 7106(a) does not preclude union from compelling agency compliance with any "applicable law, rule, or regulation"). </s> A </s> We do not lightly overturn the FLRA's construction of the Act it is charged with administering. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983). We must accept that construction if it is a reasonable one, even though it is not the one we ourselves would arrive at. See Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 -843 (1984); NLRB v. Food and Commercial Workers, 484 U.S. 112, 123 (1987). For the reasons that follow, however, we conclude that the FLRA's construction is not reasonable. </s> The FLRA's position is flatly contradicted by the language of 7106(a)'s command that "nothing in this chapter" - i. e., nothing in the entire Act - shall affect the authority of agency officials to make contracting-out determinations in accordance with applicable laws. Section 7121 is among the provisions covered by that italicized language. </s> The FLRA presents four arguments to overcome this plain text. First, it contends that reading 7106(a) to supersede [494 U.S. 922, 929] the grievance requirements of 7121 would render certain portions of 7121 superfluous. 4 Subsection 7121(c) exempts from the grievance requirements, among other things, decisions concerning appointments and certain decisions concerning suspension and removal - decisions that are also referred to as protected management rights in 7106(a). Compare 7106(a)(2)(A) and (C)(i) with 7121(c)(3) and (4). The suggestion is that these 7121(c) exclusions would have been unnecessary if the decisions in question were already insulated from the grievance requirements by 7106(a). We disagree. Subsection 7121(c) removes these agency decisions from the coverage of only 7121(a)'s negotiated grievance provisions, yet does so whether or not the decisions are made in accordance with applicable laws; 7106(a) removes the decisions from the coverage of the entire Act, but only to the extent the decisions are in accordance with applicable laws. Thus, although 7106(a) and 7121(c) sometimes overlap in their treatment of these enumerated agency decisions (each removes the decisions from the coverage of 7121(a) when [494 U.S. 922, 930] they are made in accordance with applicable laws), each provision has quite a distinct effect on them as well. 5 </s> Second, the FLRA argues that 7121 is among the "applicable laws" referred to in 7106(a)(2) - so that 7106(a) never excuses agency management from negotiating, and submitting to, grievance procedures over the exercise of reserved management rights. This cannot be the case. If the negotiation and grievance provisions of the Act, 7114 and 7121, are "applicable laws" under this section, then presumably so is all the rest of the Act, there being no basis for treating those provisions specially. Thus, under the FLRA view, 7106(a) in effect says that "nothing in this chapter shall affect the authority of management to make contracting out decisions in accordance with this chapter" - a pointless tautology. It is clear that the term "applicable laws" refers to laws outside the Act. </s> Third, the FLRA argues that the NTEU proposal is not barred by 7106(a) because, in the words of the FLRA's opinion, its incorporation into the collective-bargaining agreement would "not itself establish any particular substantive limitation on management in the exercise of its right to make contracting-out decisions"; rather, it "would only contractually recognize and provide for the enforcement of external limitations on management's right." 27 F. L. R. A., at 980. Referring to one of its earlier decisions, the FLRA emphasizes that in a negotiated grievance proceeding the arbitrator would not second-guess the IRS on discretionary aspects of the contracting-out determination, but would only review claims "that the agency failed to comply with mandatory and [494 U.S. 922, 931] nondiscretionary provisions" of the Circular. Headquarters, 97th Combat Support Group (SAC) Blytheville Air Force Base, Ark. v. American Federation of Government Employees, AFL-CIO, Local 2840, 22 F. L. R. A. 656, 661-662 (1986). He could, for example, order the agency to "reconstruct" the cost data it relied on in making a contracting decision, ibid., and, if the decision was not cost justified as required by the Circular, he could order the agency to reconsider it; but he would impose no "substantive limitation" on the contracting-out decision (other than those imposed by the "law, rule, or regulation" invoked by the aggrieved employee). 27 F. L. R. A., at 980. The trouble with this argument is that it is entirely disconnected from the text of the statute. The Act does not empower unions to enforce all "external limitations" on management rights, but only limitations contained in "applicable laws." Or to put the point differently, there are no "external limitations" on management rights, insofar as union powers under 7106(a) are concerned, other than the limitations imposed by "applicable laws." It makes no difference that, as a remedial matter, the arbitrator would at most order the IRS to redo its cost comparisons, and would not actually order a particular contract to be awarded or set aside. Section 7106(a) says that, insofar as union rights are concerned, it is entirely up to the IRS whether it will comply at all with Circular A-76's cost-comparison requirements, except to the extent that such compliance is required by an "applicable law" outside the Act. </s> Finally, the FLRA suggests that the term "applicable laws" in 7106(a)(2) is coextensive with the phrase "any law, rule, or regulation" in 7103(a)(9)(C)(ii), so that any agency contracting decision that gives rise to a grievance is by definition not "in accordance with applicable laws." The FLRA did not explicitly use this reasoning in its decision here, but it seems to have done so in other cases. See, e. g., AFSCME Local 3097 v. Department of Justice, Justice Management [494 U.S. 922, 932] Div., 31 F. L. R. A., at 333, 338-339. This argument is simply contrary to any reasonable interpretation of the text. A statute that in one section refers to "law, rule or regulation," and in another section to only "laws" cannot, unless we abandon all pretense at precise communication, be deemed to mean the same thing in both places. Nor can the modifier "applicable" make the difference - not only because its meaning has nothing to do with extending the coverage in this fashion, but also because the Act in several places employs the terms "rule" and "regulation" in conjunction with the term "applicable law." See, e. g., 7114(c)(2) (agency head shall approve collective-bargaining agreement "if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation") (emphasis added); 7122(a) ("If upon review [of an arbitrator's decision] the Authority finds that the award is deficient - (1) because it is contrary to any law, rule, or regulation . . . the authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations") (emphasis added). There is, in short, no justification for saying that all "rules" and "regulations" are encompassed by the term "applicable laws." It cannot be true, therefore, that all actions not in accordance with a "law, rule, or regulation" under 7103(a) (9)(C)(ii) are, by definition, also actions not "in accordance with applicable laws" in 7106(a)(2). </s> B </s> At oral argument, counsel for NTEU urged that we could sustain the FLRA's decision on the ground that the term "applicable laws" includes at least those regulations that carry the "force of law," and that OMB Circular A-76 is such a regulation. Tr. of Oral Arg. 36. We cannot, however, adopt this ground. While we think it a permissible (though not an inevitable) construction of the statute that the term "applicable laws" in 7106(a)(2) extends to some, but not all, [494 U.S. 922, 933] rules and regulations, 6 that extension should be made, and its precise scope described, in the first instance by the FLRA - which has been proceeding until now on the mistaken assumption that 7106(a) is irrelevant, or that "applicable laws" in 7106(a)(2) and "any law, rule or regulation" in 7103(a)(9)(C)(ii) are entirely synonymous. As we emphasized in Chevron, when an agency is charged with administering a statute, part of the authority it receives is the power to give reasonable content to the statute's textual ambiguities. 467 U.S., at 843 -844. That is a task infused with judgment and discretion, requiring the "`accommodation of conflicting policies that were committed to the agency's care.'" Id., at 845, quoting United States v. Shimer, 367 U.S. 374, 383 (1961). It is not a task we ought to undertake on the agency's behalf in reviewing its orders. Cf. SEC v. Chenery Corp., 318 U.S. 80, 88 , 95 (1943); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 169 (1962). </s> The IRS contends that even though the term "applicable laws" includes some rules and regulations, under no reasonable construction could it include internal directives like OMB Circular A-76. We are poorly situated to evaluate that argument, since the Court of Appeals did not consider it, neither of the respondents briefed it, and counsel for respondents addressed it in only the most cursory fashion at oral argument. It is, moreover, an argument that calls for a very difficult abstract conclusion, to wit, that no conceivable reasonable interpretation of "applicable laws" could include this Circular. The Court of Appeals, on remand, may wish to enter into that inquiry, or may prefer to await the FLRA's specification, on remand, of the particular permissible interpretation of "applicable laws" (if any) it believes embraces the Circular. In any event, we decline to consider the point at this stage in the proceedings. [494 U.S. 922, 934] </s> C </s> Finally, the IRS argues that the decision below should be reversed outright on the ground that the Union's proposal is inconsistent with the "no arbitration" language in OMB Circular A-76, and is therefore nonnegotiable under 7117, which provides that "the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation." 5 U.S.C. 7117(a)(1) (emphasis added). As this argument was not raised or considered in the Court of Appeals, we do not reach it. See EEOC v. FLRA, 476 U.S. 19, 24 (1986) (per curiam). 7 Nor do we decide whether the FLRA properly held Circular A-76 to be a "rule" or "regulation" within the meaning of 7103(a)(9); although the IRS raised this question as a separate ground for reversal in its petition for certiorari, it has relied only on the "management rights" clause of 7106(a) in its argument before this Court. </s> The judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 The proposed contract term read: "The Internal Appeals Procedure shall be the parties' grievance and arbitration provisions of the Master Agreements." 27 F. L. R. A. 976 (1987). The Court of Appeals characterized the proposal as "establish[ing] the `grievance and arbitration' provisions of the master labor agreement between them as the internal `administrative appeals procedure' mandated by the Supplement to the Circular for disputed `contracting-out' cases." 274 U.S. App. D.C. 135, 136, 862 F.2d 880, 881 (1988). We follow the Court of Appeals' interpretation of the proposed term. </s> [Footnote 2 The FLRA also held that although Circular A-76 was a "government-wide rule or regulation" within the meaning of 7117(a), that section of the statute did not render the union's proposal nonnegotiable because the proposal was "not inconsistent" with the Circular. 27 F. L. R. A., at 977. For reasons explained below in Part II-C, that issue is not properly before us. </s> [Footnote 3 A qualification to 7106 permits contract negotiations regarding "procedures which management officials of the agency will observe in exercising" the reserved management rights. 5 U.S.C. 7106(b)(2). Although they call our attention to this qualification, NTEU and the FLRA rightly refrain from asserting that it governs this case. The proposal at issue would enable the grievance examiner to compel the IRS to follow the cost-comparison requirements of the OMB Circular, thereby dictating the substantive criteria for the contracting-out decision. See infra, at 931. </s> [Footnote 4 The relevant language of 7121 is the following: </s> "(a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. . . . </s> "(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement. </s> . . . . . </s> "(c) The preceding subsections of this section shall not apply with respect to any grievance concerning - </s> "(1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities); </s> "(2) retirement, life insurance, or health insurance; </s> "(3) a suspension or removal under section 7532 of this title; </s> "(4) any examination, certification, or appointment; or </s> "(5) the classification of any position which does not result in the reduction in grade or pay of an employee." </s> [Footnote 5 The FLRA's position gets no support from 7121(a)'s language providing that "Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances. . . ." (Emphasis added.) If that italicized language were construed to create the Act's only exception to the requirements of 7121(a), then even the specific exclusions in subsection (c) of the provision would disappear. </s> [Footnote 6 The IRS concedes this point. See Reply Brief for Petitioner 7; Tr. of Oral Arg. 14. </s> [Footnote 7 JUSTICE STEVENS contends that 7117(a)(1) bars negotiation over the Union's proposal for yet another reason, namely, that the proposal covers a matter that is "the subject" of a "`Government-wide rule or regulation.'" Post, at 938 (dissenting opinion). This argument not only was not raised or considered below, but has not even been raised by the IRS here. We decline to address it. </s> JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. </s> Because the Court remands for further proceedings I believe are unnecessary, I respectfully dissent. As I read the opinion below, the agency found OMB Circular A-76 to be an "applicable law" within the meaning of the Civil Service Reform Act of 1978's management rights provision, 5 U.S.C. 7106 [494 U.S. 922, 935] (a)(2), and therefore determined that the Union's proposal would not infringe management's reserved rights. 1 Since the Federal Labor Relations Authority (FLRA or Authority) could permissibly interpret the statutory term to include regulations having the "force of law" and could permissibly find that the Circular is such a regulation, as the Court acknowledges, see ante, at 932, I would affirm the judgment below. 2 The FLRA's decision that the Circular is an "applicable law" is entirely reasonable. The Circular was promulgated as a formal regulation, with notice published in the Federal Register and public comment invited. See Executive Office of the President, OMB Circular A-76, 44 Fed. Reg. 20556 (1979), as amended, 48 Fed. Reg. 37110 (1983), 50 Fed. Reg. 32812 (1985). It is referenced by, and its terms generally restated in, the Federal Acquisition Regulations, codified at 48 CFR pt. 7, subpt. 7.3 (1988). By its terms, agency compliance is mandatory and enforced. OMB Circular A-76, Supp. Intro. and I-14, I-15 (rev. Aug. 4, 1983). Hence, I would uphold the FLRA's conclusion that the Circular is an "applicable law" within the meaning of 7106(a)(2). 3 </s> [494 U.S. 922, 936] </s> The Court finds the FLRA's interpretation of "applicable laws" unreasonable, not because it is an implausible reading in itself, but because it is indistinguishable from the Authority's interpretation of the phrase "law, rule, or regulation" which is contained in a different section of the Civil Service Reform Act of 1978. See ante, at 931-932. I suspect the Court reads too much into the difference in language between "applicable laws" in 7106(a)(2) and "law, rule, or regulation" in 7103(a)(9)(C)(ii). But, in any event, I understand the Court's decision to say only that the two phrases are not synonymous. Ibid. If the FLRA, in fact, has employed the same definition for the two phrases, which is arguable, the Authority's error most likely was to embrace too restrictive a view of the scope of "law, rule, or regulation." 4 Thus on remand the FLRA is free to interpret "applicable [494 U.S. 922, 937] laws" to cover not only statutes, but also regulations and rules that are binding on the agency exercising its reserved rights. See n. 2, supra. The Authority is also free to interpret "law, rule, or regulation" to cover these and more - for instance, nonbinding policy statements and unpublished internal agency guidelines. </s> Finally, I take issue with the Court's expansive view of the management rights provision as abrogating any union rights vis-a-vis decisions such as contracting out, so long as agency decisions are made consistently with applicable laws. See ante, at 931. Section 7106(a) does not purport to make other provisions of the Act wholly inapplicable to the enumerated subject areas. It says only that nothing in the statute "shall affect the authority of any management official of any agency" to make certain types of decisions. (Emphasis added.) An exercise of union rights that does not affect management's existing authority is fully consistent with this provision. Insofar as the Union proposal would require merely what is already required by OMB Circular A-76, it would not affect the Internal Revenue Service's authority to make contracting out decisions. Therefore it would not infringe the agency's reserved rights. Because I do not read the Authority's decision as clearly relying on this ground, I do not think it necessary for the Court to have reached it. </s> [Footnote 1 See 27 F. L. R. A. 976, 979 (1987) (the Union proposal "require[s] nothing that is not required by section 7106(a)(2) of the Statute itself, namely, that determinations as to contracting-out must be made `in accordance with applicable laws'"). </s> [Footnote 2 I am inclined to agree with the position taken by the Deputy Solicitor General at oral argument, see Tr. of Oral Arg. 14, that "applicable laws" include not only statutes but also regulations having the force of law, and that the Administrative Procedure Act (APA) provides the relevant measure. See id., at 47 ("[I]f a private party could bring an APA action, that would be very strong, if not conclusive, evidence that . . . you are dealing with an applicable law"). Under the APA, an agency action inconsistent with any valid and binding rule or regulation is actionable by anyone "aggrieved" by it. See 5 U.S.C. 702, 706(2)(A); Center for Auto Safety v. Dole, 264 U.S. App. D.C. 219, 223, 235, 828 F.2d 799, 803, 815 (1987); Padula v. Webster, 261 U.S. App. D.C. 365, 368, 822 F.2d 97, 100 (1987). </s> [Footnote 3 I do not agree with JUSTICE STEVENS that, even if OMB Circular A-76 is an applicable law, 7117(a)(1) precludes bargaining over the Union [494 U.S. 922, 936] proposal because the Circular is also a "`Government-wide rule or regulation.'" See post, at 938. Section 7117(a)(1) provides: </s> "[T]he duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation." </s> I agree with JUSTICE STEVENS that the Circular is a Government-wide rule or regulation, but I do not read the provision to bar a union proposal that asks only that an existing rule or regulation be incorporated in its entirety into the union's collective-bargaining agreement. The function of 7117(a)(1) appears to be to insulate from the bargaining process union efforts to change anything that has already been settled by those with authority over the agency - e. g., Congress, the President, or OMB. The two clauses in 7117(a)(1) explain that a union proposal in direct conflict with, or covering the same ground as, a Government-wide rule or regulation is not bargainable. They establish a kind of pre-emption by which agencies may not adopt rules where those with greater authority have adopted a contrary rule or occupied the field. Thus, no purpose is served by including the rule or regulation itself within "matters which are the subject of" any Government-wide rule or regulation. Incorporating a Government-wide rule into a collective-bargaining agreement does not place the agency at odds with any greater authority. </s> [Footnote 4 That the Authority found below that OMB Circular A-76 is a "law, rule, or regulation" under 7103(a)(9)(C)(ii), see 27 F. L. R. A., at 978, [494 U.S. 922, 937] does not undermine the validity of its decision even if its definition of "law, rule, or regulation" was too narrow. If the Circular fit within an overly restrictive definition of the phrase, a fortiori, it must fit within an appropriately broad definition. Moreover, the FLRA's finding that the Union's proposal did not interfere with reserved management rights because OMB Circular A-76 is encompassed by the term "applicable laws" is sufficient ground in itself for the decision and was relied on as such by the Authority. See 27 F. L. R. A., at 979. </s> JUSTICE STEVENS, dissenting. </s> If OMB Circular A-76 (rev. Aug. 4, 1983) is not an "applicable law" within the meaning of 5 U.S.C. 7106(a)(2), the plain language of that section requires an outright reversal of [494 U.S. 922, 938] the Court of Appeals' decision. I have previously endorsed the view that the Circular is not an applicable law, and I still think that conclusion is correct. EEOC v. FLRA, 476 U.S. 19, 27 (1986) (dissenting opinion); see also U.S. Dept. of Health and Human Services v. FLRA, 844 F.2d 1087 (CA4 1988) (en banc). But even if the Circular were an "applicable law," it would then certainly also be "a Government-wide rule or regulation" within the meaning of 7117(a)(1). Under the plain language of that section, the duty to bargain does not extend to matters which are the subject of such a regulation. By seeking to bargain about enforcement of the Circular, the Union seeks to bargain about matters subject to the Circular. Cf. 844 F.2d, at 1099. I am therefore persuaded that whether or not one interprets Circular A-76 as an applicable law, either 7106(a)(2) or 7117(a)(1) requires reversal. To the extent that the Court instead leaves the issue open on remand, I respectfully dissent. </s> [494 U.S. 922, 1]

United States Supreme Court VERLINDEN B. V. v. CENTRAL BANK OF NIGERIA(1983) No. 81-920 Argued: January 11, 1983Decided: May 23, 1983 </s> A contract between the Federal Republic of Nigeria and petitioner Dutch corporation for the purchase of cement by Nigeria provided that Nigeria was to establish a confirmed letter of credit for the purchase price. Subsequently, petitioner sued respondent bank, an instrumentality of Nigeria, in Federal District Court, alleging that certain actions by respondent constituted an anticipatory breach of the letter of credit. Petitioner alleged jurisdiction under the provision of the Foreign Sovereign Immunities Act of 1976 (Act), 28 U.S.C. 1330(a), granting federal district courts jurisdiction without regard to the amount in controversy of "any nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement." The District Court, while holding that the Act permitted actions by foreign plaintiffs, dismissed the action on the ground that none of the exceptions to sovereign immunity specified in the Act applied. The Court of Appeals affirmed, but on the ground that the Act exceeded the scope of Art. III of the Constitution, which provides, in part, that the judicial power of the United States shall extend to "all Cases . . . arising under [the] Constitution, the Laws of the United States, and Treaties made . . . under their Authority," and to "Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects." The court held that neither the Diversity Clause nor the "Arising Under" Clause of Art. III is broad enough to support jurisdiction over actions by foreign plaintiffs against foreign sovereigns. </s> Held: </s> 1. For the most part, the Act codifies, as a matter of federal law, the restrictive theory of foreign sovereign immunity under which immunity is confined to suits involving the foreign sovereign's public acts and does not extend to cases arising out of its strictly commercial acts. If one of the specified exceptions to sovereign immunity applies, a federal district court may exercise subject-matter jurisdiction under 1330(a), but if the claim does not fall within one of the exceptions, the court lacks such jurisdiction. Pp. 486-489. [461 U.S. 480, 481] </s> 2. On its face, 1330(a) allows a foreign plaintiff to sue a foreign sovereign in federal court provided the substantive requirements of the Act are satisfied. The Act contains no indication of any limitation based on the plaintiff's citizenship. And, when considered as a whole, the legislative history reveals an intent not to limit jurisdiction under the Act to actions brought by American citizens. Pp. 489-491. </s> 3. Congress did not exceed the scope of Art. III by granting federal district courts subject-matter jurisdiction over certain civil actions by foreign plaintiffs against foreign sovereigns where the rule of decision may be provided by state law. While the Diversity Clause of Art. III is not broad enough to support such subject-matter jurisdiction, the "Arising Under" Clause is an appropriate basis for the statutory grant of jurisdiction. In enacting the Act, Congress expressly exercised its power to regulate foreign commerce, along with other specified Art. I powers. The Act does not merely concern access to the federal courts but rather governs the types of actions for which foreign sovereigns may be held liable in a federal court and codifies the standards governing foreign sovereign immunity as an aspect of substantive federal law. Thus, a suit against a foreign state under the Act necessarily involves application of a comprehensive body of substantive federal law, and hence "arises under" federal law within the meaning of Art. III. Pp. 491-497. </s> 4. Since the Court of Appeals, in affirming the District Court, did not find it necessary to address the statutory question of whether the present action fell within any specified exception to foreign sovereign immunity, the court on remand must consider whether jurisdiction exists under the Act itself. Pp. 497-498. </s> 647 F.2d 320, reversed and remanded. </s> BURGER, C. J., delivered the opinion for a unanimous Court. </s> Abram Chayes argued the cause for petitioner. With him on the brief were Berthold H. Hoeniger and Mitchell M. Bailey. </s> Deputy Solicitor General Bator argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Assistant Attorney General McGrath, Kenneth S. Geller and Stephen M. Shapiro, Deputy Solicitors General, William Kanter, and Eloise Davies. [461 U.S. 480, 482] </s> Stephen N. Shulman, by invitation of the Court, 459 U.S. 964 , argued the cause as amicus curiae in support of the judgment below. * </s> [Footnote * Briefs of amici curiae urging reversal were filed by Lori Fisler Damrosch and Joseph McLaughlin for the Committee on International Law of the Association of the Bar of the City of New York; and by Monroe Leigh, Timothy B. Atkeson, Cecil J. Olmstead, and Stewart A. Baker for the Rule of Law Committee et al. A brief of amicus curiae urging affirmance was filed by Stephen N. Shulman and Mark C. Ellenberg for the Republic of Guinea. </s> CHIEF JUSTICE BURGER delivered the opinion of the Court. </s> We granted certiorari to consider whether the Foreign Sovereign Immunities Act of 1976, by authorizing a foreign plaintiff to sue a foreign state in a United States district court on a nonfederal cause of action, violates Article III of the Constitution. </s> I </s> On April 21, 1975, the Federal Republic of Nigeria and petitioner Verlinden B. V., a Dutch corporation with its principal offices in Amsterdam, the Netherlands, entered into a contract providing for the purchase of 240,000 metric tons of cement by Nigeria. The parties agreed that the contract would be governed by the laws of the Netherlands and that disputes would be resolved by arbitration before the International Chamber of Commerce, Paris, France. </s> The contract provided that the Nigerian Government was to establish an irrevocable, confirmed letter of credit for the total purchase price through Slavenburg's Bank in Amsterdam. According to petitioner's amended complaint, however, respondent Central Bank of Nigeria, an instrumentality of Nigeria, improperly established an unconfirmed letter of credit payable through Morgan Guaranty Trust Co. in New York. 1 </s> [461 U.S. 480, 483] </s> In August 1975, Verlinden subcontracted with a Liechtenstein corporation, Interbuco, to purchase the cement needed to fulfill the contract. Meanwhile, the ports of Nigeria had become clogged with hundreds of ships carrying cement, sent by numerous other cement suppliers with whom Nigeria also had entered into contracts. 2 In mid-September, Central Bank unilaterally directed its correspondent banks, including Morgan Guaranty, to adopt a series of amendments to all letters of credit issued in connection with the cement contracts. Central Bank also directly notified the suppliers that payment would be made only for those shipments approved by Central Bank two months before their arrival in Nigerian waters. 3 </s> Verlinden then sued Central Bank in the United States District Court for the Southern District of New York, alleging that Central Bank's actions constituted an anticipatory breach of the letter of credit. Verlinden alleged jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. 1330. 4 Respondent moved to dismiss for, among other reasons, lack of subject-matter and personal jurisdiction. [461 U.S. 480, 484] </s> The District Court first held that a federal court may exercise subject-matter jurisdiction over a suit brought by a foreign corporation against a foreign sovereign. Although the legislative history of the Foreign Sovereign Immunities Act does not clearly reveal whether Congress intended the Act to extend to actions brought by foreign plaintiffs, Judge Weinfeld reasoned that the language of the Act is "broad and embracing. It confers jurisdiction over `any nonjury civil action' against a foreign state." 488 F. Supp. 1284, 1292 (SDNY 1980). Moreover, in the District Court's view, allowing all actions against foreign sovereigns, including those initiated by foreign plaintiffs, to be brought in federal court was necessary to effectuate "the Congressional purpose of concentrating litigation against sovereign states in the federal courts in order to aid the development of a uniform body of federal law governing assertions of sovereign immunity." Ibid. The District Court also held that Art. III subject-matter jurisdiction extends to suits by foreign corporations against foreign sovereigns, stating: </s> "[The Act] imposes a single, federal standard to be applied uniformly by both state and federal courts hearing claims brought against foreign states. In consequence, even though the plaintiff's claim is one grounded upon common law, the case is one that `arises under' a federal law because the complaint compels the application of the uniform federal standard governing assertions of sovereign immunity. In short, the Immunities Act injects an essential federal element into all suits brought against foreign states." Ibid. </s> The District Court nevertheless dismissed the complaint, holding that a foreign instrumentality is entitled to sovereign immunity unless one of the exceptions specified in the Act applies. [461 U.S. 480, 485] After carefully considering each of the exceptions upon which petitioner relied, the District Court concluded that none applied, and accordingly dismissed the action. 5 </s> The Court of Appeals for the Second Circuit affirmed, but on different grounds. 647 F.2d 320 (1981). The court agreed with the District Court that the Act was properly construed to permit actions brought by foreign plaintiffs. The court held, however, that the Act exceeded the scope of Art. III of the Constitution. In the view of the Court of Appeals, neither the Diversity Clause 6 nor the "Arising Under" Clause 7 of Art. III is broad enough to support jurisdiction over actions by foreign plaintiffs against foreign sovereigns; accordingly it concluded that Congress was without power to grant federal courts jurisdiction in this case, and affirmed the District Court's dismissal of the action. 8 </s> [461 U.S. 480, 486] </s> We granted certiorari, 454 U.S. 1140 (1982), and we reverse and remand. </s> II </s> For more than a century and a half, the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country. In The Schooner Exchange v. M'Faddon, 7 Cranch 116 (1812), Chief Justice Marshall concluded that, while the jurisdiction of a nation within its own territory "is susceptible of no limitation not imposed by itself," id., at 136, the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns. Although the narrow holding of The Schooner Exchange was only that the courts of the United States lack jurisdiction over an armed ship of a foreign state found in our port, that opinion came to be regarded as extending virtually absolute immunity to foreign sovereigns. See, e. g., Berizzi Brothers Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Von Mehren, The Foreign Sovereign Immunities Act of 1976, 17 Colum. J. Transnat'l L. 33, 39-40 (1978). </s> As The Schooner Exchange made clear, however, foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution. Accordingly, this Court consistently has deferred to the decisions of the political branches - in particular, those of the Executive Branch - on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities. See, e. g., Ex parte Peru, 318 U.S. 578, 586 -590 (1943); Mexico v. Hoffman, 324 U.S. 30, 33 -36 (1945). </s> Until 1952, the State Department ordinarily requested immunity in all actions against friendly foreign sovereigns. [461 U.S. 480, 487] But in the so-called Tate Letter, 9 the State Department announced its adoption of the "restrictive" theory of foreign sovereign immunity. Under this theory, immunity is confined to suits involving the foreign sovereign's public acts, and does not extend to cases arising out of a foreign state's strictly commercial acts. </s> The restrictive theory was not initially enacted into law, however, and its application proved troublesome. As in the past, initial responsibility for deciding questions of sovereign immunity fell primarily upon the Executive acting through the State Department, and the courts abided by "suggestions of immunity" from the State Department. As a consequence, foreign nations often placed diplomatic pressure on the State Department in seeking immunity. On occasion, political considerations led to suggestions of immunity in cases where immunity would not have been available under the restrictive theory. 10 </s> An additional complication was posed by the fact that foreign nations did not always make requests to the State Department. In such cases, the responsibility fell to the courts to determine whether sovereign immunity existed, generally by reference to prior State Department decisions. See generally Lowenfeld, Claims Against Foreign States - A Proposal for Reform of United States Law, 44 N. Y. U. L. Rev. [461 U.S. 480, 488] 901, 909-912 (1969). Thus, sovereign immunity determinations were made in two different branches, subject to a variety of factors, sometimes including diplomatic considerations. Not surprisingly, the governing standards were neither clear nor uniformly applied. See, e. g., id., at 906-909; Weber, The Foreign Sovereign Immunities Act of 1976: Its Origin, Meaning and Effect, 3 Yale Studies in World Public Order 1, 11-13, 15-17 (1976). </s> In 1976, Congress passed the Foreign Sovereign Immunities Act in order to free the Government from the case-by-case diplomatic pressures, to clarify the governing standards, and to "assur[e] litigants that . . . decisions are made on purely legal grounds and under procedures that insure due process," H. R. Rep. No. 94-1487, p. 7 (1976). To accomplish these objectives, the Act contains a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumentalities. </s> For the most part, the Act codifies, as a matter of federal law, the restrictive theory of sovereign immunity. A foreign state is normally immune from the jurisdiction of federal and state courts, 28 U.S.C. 1604, subject to a set of exceptions specified in 1605 and 1607. Those exceptions include actions in which the foreign state has explicitly or impliedly waived its immunity, 1605(a)(1), and actions based upon commercial activities of the foreign sovereign carried on in the United States or causing a direct effect in the United States, 1605(a)(2). 11 When one of these or the other specified exceptions applies, "the foreign state shall be liable in [461 U.S. 480, 489] the same manner and to the same extent as a private individual under like circumstances," 1606. 12 </s> The Act expressly provides that its standards control in "the courts of the United States and of the States," 1604, and thus clearly contemplates that such suits may be brought in either federal or state courts. However, "[i]n view of the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area," H. R. Rep. No. 94-1487, supra, at 32, the Act guarantees foreign states the right to remove any civil action from a state court to a federal court, 1441(d). The Act also provides that any claim permitted under the Act may be brought from the outset in federal court, 1330(a). 13 If one of the specified exceptions to sovereign immunity applies, a federal district court may exercise subject-matter jurisdiction under 1330(a); but if the claim does not fall within one of the exceptions, federal courts lack subject-matter jurisdiction. 14 In such a case, the foreign state is also ensured immunity from the jurisdiction of state courts by 1604. </s> III </s> The District Court and the Court of Appeals both held that the Foreign Sovereign Immunities Act purports to allow a foreign plaintiff to sue a foreign sovereign in the courts of the United States, provided the substantive requirements of the Act are satisfied. We agree. </s> On its face, the language of the statute is unambiguous. The statute grants jurisdiction over "any nonjury civil action against a foreign state . . . with respect to which the foreign [461 U.S. 480, 490] state is not entitled to immunity," 28 U.S.C. 1330(a). The Act contains no indication of any limitation based on the citizenship of the plaintiff. </s> The legislative history is less clear in this regard. The House Report recites that the Act would provide jurisdiction for "any claim with respect to which the foreign state is not entitled to immunity under sections 1605-1607," H. R. Rep. No. 94-1487, supra, at 13 (emphasis added), and also states that its purpose was "to provide when and how parties can maintain a lawsuit against a foreign state or its entities," id., at 6 (emphasis added). At another point, however, the Report refers to the growing number of disputes between "American citizens" and foreign states, id., at 6-7, and expresses the desire to ensure "our citizens . . . access to the courts," id., at 6 (emphasis added). </s> Notwithstanding this reference to "our citizens," we conclude that, when considered as a whole, the legislative history reveals an intent not to limit jurisdiction under the Act to actions brought by American citizens. Congress was aware of concern that "our courts [might be] turned into small `international courts of claims[,]' . . . open . . . to all comers to litigate any dispute which any private party may have with a foreign state anywhere in the world." Testimony of Bruno A. Ristau, Hearings on H. R. 11315, at 31. As the language of the statute reveals, Congress protected against this danger not by restricting the class of potential plaintiffs, but rather by enacting substantive provisions requiring some form of substantial contact with the United States. See 28 U.S.C. 1605. 15 If an action satisfies the [461 U.S. 480, 491] substantive standards of the Act, it may be brought in federal court regardless of the citizenship of the plaintiff. 16 </s> IV </s> We now turn to the core question presented by this case: whether Congress exceeded the scope of Art. III of the Constitution by granting federal courts subject-matter jurisdiction over certain civil actions by foreign plaintiffs against foreign sovereigns where the rule of decision may be provided by state law. </s> This Court's cases firmly establish that Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution. See, e. g., Hodgson v. Bowerbank, 5 Cranch 303 (1809); Kline v. Burke Construction Co., 260 U.S. 226, 234 (1922). Within Art. III of the Constitution, we find two sources authorizing the grant of jurisdiction in the Foreign Sovereign Immunities Act: the Diversity Clause and the "Arising Under" Clause. 17 The Diversity Clause, which provides that the judicial power extends to controversies between "a State, or the Citizens thereof, and foreign States," covers actions by citizens of [461 U.S. 480, 492] States. Yet diversity jurisdiction is not sufficiently broad to support a grant of jurisdiction over actions by foreign plaintiffs, since a foreign plaintiff is not "a State, or [a] Citize[n] thereof." See Mossman v. Higginson, 4 Dall. 12 (1800). 18 We conclude, however, that the "Arising Under" Clause of Art. III provides an appropriate basis for the statutory grant of subject-matter jurisdiction to actions by foreign plaintiffs under the Act. </s> The controlling decision on the scope of Art. III "arising under" jurisdiction is Chief Justice Marshall's opinion for the Court in Osborn v. Bank of United States, 9 Wheat. 738 (1824). In Osborn, the Court upheld the constitutionality of a statute that granted the Bank of the United States the right to sue in federal court on causes of action based upon state law. There, the Court concluded that the "judicial department may receive . . . the power of construing every . . . law" that "the Legislature may constitutionally make," id., at 818. The rule was laid down that </s> "it [is] a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the constitution or law[s] of the United States, and sustained by the opposite construction." Id., at 822. </s> Osborn thus reflects a broad conception of "arising under" jurisdiction, according to which Congress may confer on the federal courts jurisdiction over any case or controversy that might call for the application of federal law. The breadth of that conclusion has been questioned. It has been observed that, taken at its broadest, Osborn might be read as permitting "assertion of original federal jurisdiction on the remote possibility of presentation of a federal question." Textile Workers v. Lincoln Mills, 353 U.S. 448, 482 (1957) (Frankfurter, [461 U.S. 480, 493] J., dissenting). See, e. g., P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 866-867 (2d ed. 1973). We need not now resolve that issue or decide the precise boundaries of Art. III jurisdiction, however, since the present case does not involve a mere speculative possibility that a federal question may arise at some point in the proceeding. Rather, a suit against a foreign state under this Act necessarily raises questions of substantive federal law at the very outset, and hence clearly "arises under" federal law, as that term is used in Art. III. </s> By reason of its authority over foreign commerce and foreign relations, Congress has the undisputed power to decide, as a matter of federal law, whether and under what circumstances foreign nations should be amenable to suit in the United States. Actions against foreign sovereigns in our courts raise sensitive issues concerning the foreign relations of the United States, and the primacy of federal concerns is evident. See, e. g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 -425 (1964); Zschernig v. Miller, 389 U.S. 429, 440 -441 (1968). </s> To promote these federal interests, Congress exercised its Art. I powers 19 by enacting a statute comprehensively regulating the amenability of foreign nations to suit in the United States. The statute must be applied by the district courts in every action against a foreign sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity, 28 U.S.C. 1330(a). 20 At the threshold of every action [461 U.S. 480, 494] in a district court against a foreign state, therefore, the court must satisfy itself that one of the exceptions applies - and in doing so it must apply the detailed federal law standards set forth in the Act. Accordingly, an action against a foreign sovereign arises under federal law, for purposes of Art. III jurisdiction. </s> In reaching a contrary conclusion, the Court of Appeals relied heavily upon decisions construing 28 U.S.C. 1331, the statute which grants district courts general federal-question jurisdiction over any case that "arises under" the laws of the United States. The court placed particular emphasis on the so-called "well-pleaded complaint" rule, which provides, for purposes of statutory "arising under" jurisdiction, that the federal question must appear on the face of a well-pleaded complaint and may not enter in anticipation of a defense. See, e. g., Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908); Gully v. First National Bank, 299 U.S. 109 (1936); 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3562 (1975) (hereinafter Wright, Miller, & Cooper). In the view of the Court of Appeals, the question of foreign sovereign immunity in this case arose solely as a defense, and not on the face of Verlinden's well-pleaded complaint. </s> Although the language of 1331 parallels that of the "Arising Under" Clause of Art. III, this Court never has held that statutory "arising under" jurisdiction is identical to Art. III "arising under" jurisdiction. Quite the contrary is true. Section 1331, the general federal-question statute, although broadly phrased, </s> "has been continuously construed and limited in the light of the history that produced it, the demands of reason and coherence, and the dictates of sound judicial policy [461 U.S. 480, 495] which have emerged from the [statute's] function as a provision in the mosaic of federal judiciary legislation. It is a statute, not a Constitution, we are expounding." Romero v. International Terminal Operating Co., 358 U.S. 354, 379 (1959) (emphasis added). </s> In an accompanying footnote, the Court further observed: "Of course the many limitations which have been placed on jurisdiction under 1331 are not limitations on the constitutional power of Congress to confer jurisdiction on the federal courts." Id., at 379, n. 51. We reiterated that conclusion in Powell v. McCormack, 395 U.S. 486, 515 (1969). See also Shoshone Mining Co. v. Rutter, 177 U.S. 505, 506 (1900). As these decisions make clear, Art. III "arising under" jurisdiction is broader than federal-question jurisdiction under 1331, and the Court of Appeals' heavy reliance on decisions construing that statute was misplaced. 21 </s> In rejecting "arising under" jurisdiction, the Court of Appeals also noted that 28 U.S.C. 1330 is a jurisdictional provision. 22 Because of this, the court felt its conclusion compelled by prior cases in which this Court has rejected congressional [461 U.S. 480, 496] attempts to confer jurisdiction on federal courts simply by enacting jurisdictional statutes. In Mossman v. Higginson, 4 Dall. 12 (1800), for example, this Court found that a statute purporting to confer jurisdiction over actions "where an alien is a party" would exceed the scope of Art. III if construed to allow an action solely between two aliens. And in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 451-453 (1852), the Court, while upholding a statute granting jurisdiction over vessels on the Great Lakes as an exercise of maritime jurisdiction, rejected the view that the jurisdictional statute itself constituted a federal regulation of commerce upon which "arising under" jurisdiction could be based. </s> From these cases, the Court of Appeals apparently concluded that a jurisdictional statute can never constitute the federal law under which the action arises, for Art. III purposes. Yet the statutes at issue in these prior cases sought to do nothing more than grant jurisdiction over a particular class of cases. As the Court stated in The Propeller Genesee Chief: "The law . . . contains no regulations of commerce . . . . It merely confers a new jurisdiction on the district courts; and this is its only object and purpose. . . . It is evident . . . that Congress, in passing [the law], did not intend to exercise their power to regulate commerce . . . ." 12 How., at 451-452 (emphasis added). </s> In contrast, in enacting the Foreign Sovereign Immunities Act, Congress expressly exercised its power to regulate foreign commerce, along with other specified Art. I powers. See n. 19, supra. As the House Report clearly indicates, the primary purpose of the Act was to "se[t] forth comprehensive rules governing sovereign immunity," H. R. Rep. No. 94-1487, p. 12 (1976); the jurisdictional provisions of the Act are simply one part of this comprehensive scheme. The Act thus does not merely concern access to the federal courts. Rather, it governs the types of actions for which foreign sovereigns [461 U.S. 480, 497] may be held liable in a court in the United States, federal or state. The Act codifies the standards governing foreign sovereign immunity as an aspect of substantive federal law, see Ex parte Peru, 318 U.S., at 588 ; Mexico v. Hoffman, 324 U.S., at 36 ; and applying those standards will generally require interpretation of numerous points of federal law. Finally, if a court determines that none of the exceptions to sovereign immunity applies, the plaintiff will be barred from raising his claim in any court in the United States - manifestly, "the title or right set up by the party, may be defeated by one construction of the . . . laws of the United States, and sustained by the opposite construction." Osborn v. Bank of United States, 9 Wheat., at 822. That the inquiry into foreign sovereign immunity is labeled under the Act as a matter of jurisdiction does not affect the constitutionality of Congress' action in granting federal courts jurisdiction over cases calling for application of this comprehensive regulatory statute. </s> Congress, pursuant to its unquestioned Art. I powers, has enacted a broad statutory framework governing assertions of foreign sovereign immunity. In so doing, Congress deliberately sought to channel cases against foreign sovereigns away from the state courts and into federal courts, thereby reducing the potential for a multiplicity of conflicting results among the courts of the 50 States. The resulting jurisdictional grant is within the bounds of Art. III, since every action against a foreign sovereign necessarily involves application of a body of substantive federal law, and accordingly "arises under" federal law, within the meaning of Art. III. </s> V </s> A conclusion that the grant of jurisdiction in the Foreign Sovereign Immunities Act is consistent with the Constitution does not end the case. An action must not only satisfy Art. III but must also be supported by a statutory grant of subject-matter jurisdiction. As we have made clear, deciding [461 U.S. 480, 498] whether statutory subject-matter jurisdiction exists under the Foreign Sovereign Immunities Act entails an application of the substantive terms of the Act to determine whether one of the specified exceptions to immunity applies. </s> In the present case, the District Court, after satisfying itself as to the constitutionality of the Act, held that the present action does not fall within any specified exception. The Court of Appeals, reaching a contrary conclusion as to jurisdiction under the Constitution, did not find it necessary to address this statutory question. 23 Accordingly, on remand the Court of Appeals must consider whether jurisdiction exists under the Act itself. If the Court of Appeals agrees with the District Court on that issue, the case will be at an end. If, on the other hand, the Court of Appeals concludes that jurisdiction does exist under the statute, the action may then be remanded to the District Court for further proceedings. </s> It is so ordered. </s> Footnotes [Footnote 1 Morgan Guaranty acted solely as an advising bank; it undertook no independent responsibility for guaranteeing the letter of credit. </s> [Footnote 2 In 1975, Nigeria entered into 109 cement contracts with 68 suppliers. For a description of the general background of these events, see Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 303-306 (CA2 1981), cert. denied, 454 U.S. 1148 (1982). See also Trendtex Trading Corp. v. Central Bank of Nigeria, 1977. Q. B. 529. </s> [Footnote 3 The parties do not seriously dispute the fact that these unilateral amendments constituted violations of Article 3 of the Uniform Customs and Practice for Documentary Credits (Int'l Chamber of Commerce Brochure No. 222) (1962 Revision), which, by stipulation of the parties, is applicable. See 488 F. Supp. 1284, 1288, and n. 5 (SDNY 1980). </s> [Footnote 4 Title 28 U.S.C. 1330 provides: "(a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement. [461 U.S. 480, 484] "(b) Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title." </s> [Footnote 5 The District Court dismissed "for lack of personal jurisdiction." Under the Act, however, both statutory subject-matter jurisdiction (otherwise known as "competence") and personal jurisdiction turn on application of the substantive provisions of the Act. Under 1330(a), federal district courts are provided subject-matter jurisdiction if a foreign state is "not entitled to immunity either under sections 1605-1607 . . . or under any applicable international agreement"; 1330(b) provides personal jurisdiction wherever subject-matter jurisdiction exists under subsection (a) and service of process has been made under 28 U.S.C. 1608. Thus, if none of the exceptions to sovereign immunity set forth in the Act applies, the District Court lacks both statutory subject-matter jurisdiction and personal jurisdiction. The District Court's conclusion that none of the exceptions to the Act applied therefore signified an absence of both competence and personal jurisdiction. </s> [Footnote 6 The Foreign Diversity Clause provides that the judicial power extends "to Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." U.S. Const., Art. III, 2, cl. 1. </s> [Footnote 7 The so-called "Arising Under" Clause provides: "The judicial Power [of the United States] shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Ibid. </s> [Footnote 8 After the decision was announced, the United States moved for leave to intervene and for rehearing on the ground that the Court of Appeals had not complied with 28 U.S.C. 2403, which requires that, in "any action" [461 U.S. 480, 486] in which "the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General." The Court of Appeals denied the motion without explanation, see App. to Pet. for Cert. 55a. </s> [Footnote 9 Letter from Jack B. Tate, Acting Legal Adviser, Department of State, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. of State Bull. 984-985 (1952), and in Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 711 (1976) (Appendix 2 to opinion of WHITE, J.). </s> [Footnote 10 See Testimony of Monroe Leigh, Legal Adviser, Department of State, Hearings on H. R. 11315 before the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, 94th Cong., 2d Sess., 34-35 (1976) (hereafter Hearings on H. R. 11315); Leigh, Sovereign Immunity - The Case of the "Imias," 68 Am. J. Int'l L. 280 (1974); Note, The Foreign Sovereign Immunities Act of 1976: Giving the Plaintiff His Day in Court, 46 Ford. L. Rev. 543, 548-549 (1977). </s> [Footnote 11 The Act also contains exceptions for certain actions "in which rights in property taken in violation of international law are in issue," 1605(a)(3); actions involving rights in real estate and in inherited and gift property located in the United States, 1605(a)(4); actions for certain noncommercial torts within the United States, 1605(a)(5); certain actions involving maritime liens, 1605(b); and certain counterclaims, 1607. </s> [Footnote 12 Section 1606 somewhat modifies this standard of liability with respect to punitive damages and wrongful-death actions. </s> [Footnote 13 "[T]o encourage the bringing of actions against foreign states in Federal courts," H. R. Rep. No. 94-1487, p. 13 (1976), the Act specifies that federal district courts shall have original jurisdiction "without regard to amount in controversy." 1330(a). </s> [Footnote 14 In such a situation, the federal court will also lack personal jurisdiction. See n. 5, supra. </s> [Footnote 15 Section 1605(a)(1), which provides that sovereign immunity shall not apply if waived, may be seen as an exception to the normal pattern of the Act, which generally requires some form of contact with the United States. We need not decide whether, by waiving its immunity, a foreign state could consent to suit based on activities wholly unrelated to the United States. The Act does not appear to affect the traditional doctrine of forum non conveniens. See generally Kane, Suing Foreign Sovereigns: A Procedural Compass, 34 Stanford L. Rev. 385, 411-412 (1982); Note, Suits by [461 U.S. 480, 491] Foreigners Against Foreign States in United States Courts: A Selective Expansion of Jurisdiction, 90 Yale L. J. 1861, 1871-1873 (1981). </s> [Footnote 16 Prior to passage of the Foreign Sovereign Immunities Act, which Congress clearly intended to govern all actions against foreign sovereigns, state courts on occasion had exercised jurisdiction over suits between foreign plaintiffs and foreign sovereigns, see, e. g., J. Zeevi & Sons v. Grindlays Bank, 37 N. Y. 2d 220, 333 N. E. 2d 168, cert. denied, 423 U.S. 866 (1975). Congress did not prohibit such actions when it enacted the Foreign Sovereign Immunities Act, but sought to ensure that any action that might be brought against a foreign sovereign in state court could also be brought in or removed to federal court. See supra, at 489. </s> [Footnote 17 In view of our conclusion that proper actions by foreign plaintiffs under the Foreign Sovereign Immunities Act are within Art. III "arising under" jurisdiction, we need not consider petitioner's alternative argument that the Act is constitutional as an aspect of so-called "protective jurisdiction." See generally Note, The Theory of Protective Jurisdiction, 57 N. Y. U. L. Rev. 933 (1982). </s> [Footnote 18 Since Art. III requires only "minimal diversity," see State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530 (1967), diversity jurisdiction would be a sufficient basis for jurisdiction where at least one of the plaintiffs is a citizen of a State. </s> [Footnote 19 In enacting the legislation, Congress relied specifically on its powers to prescribe the jurisdiction of federal courts, Art. I, 8, cl. 9; to define offenses against the "Law of Nations," Art. I, 8, cl. 10; to regulate commerce with foreign nations, Art. I, 8, cl. 3; and to make all laws necessary and proper to execute the Government's powers, Art. I, 8, cl. 18. </s> [Footnote 20 The House Report on the Act states that "sovereign immunity is an affirmative defense which must be specially pleaded," H. R. Rep. No. 94-1487, p. 17 (1976). Under the Act, however, subject-matter jurisdiction [461 U.S. 480, 494] turns on the existence of an exception to foreign sovereign immunity, 28 U.S.C. 1330(a). Accordingly, even if the foreign state does not enter an appearance to assert an immunity defense, a district court still must determine that immunity is unavailable under the Act. </s> [Footnote 21 Citing only Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900), the Court of Appeals recognized that this Court "has implied" that Art. III jurisdiction is broader than that under 1331. The court nevertheless placed substantial reliance on decisions construing 1331. </s> [Footnote 22 Although a major function of the Foreign Service Immunities Act as a whole is to regulate jurisdiction of federal courts over cases involving foreign states, the Act's purpose is to set forth "comprehensive rules governing sovereign immunity." H. R. Rep. No. 94-1487, supra, at 12. The Act also prescribes procedures for commencing lawsuits against foreign states in federal and state courts and specifies the circumstances under which attachment and execution may be obtained against the property of foreign states. Ibid. In addition, the Act defines "Extent of Liability," setting out a general rule that the foreign sovereign is "liable in the same manner and to the same extent as a private individual," subject to certain specified exceptions, 28 U.S.C. 1606. In view of our resolution of this case, we need not consider petitioner's claim that 1606 itself renders every claim against a foreign sovereign a federal cause of action. See generally 13 Wright, Miller, & Cooper 3563, at 418-419. </s> [Footnote 23 In several related cases involving contracts between Nigeria and other cement suppliers, the Court of Appeals held that statutory subject-matter jurisdiction existed under the Act. In those cases, the court held that Nigeria's acts were commercial in nature and "cause[d] a direct effect in the United States," within the meaning of 28 U.S.C. 1605(a). Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d, at 310-313. Each of those actions involved a contract with an American supplier operating within the United States, however. In the present case, the District Court found that exception inapplicable, concluding that the repudiation of the letter of credit "caused no direct, substantial, injurious effect in the United States." 488 F. Supp., at 1299-1300. </s> [461 U.S. 480, 499]

United States Supreme Court ALEXANDER v. FIOTO(1977) No. 75-1704 Argued: March 1, 1977Decided: April 4, 1977 </s> Although he met the other requirements for eligibility, appellee was denied retirement pay for his service in the National Guard on the basis of 10 U.S.C. 1331 (c). That section provides that persons who had been in the Reserves or National Guard before the termination of World War II are not "eligible for retired pay" unless they served on active duty during wartime. Held: </s> 1. Both the plain language of 1331 (c) and its legislative history demonstrate that Congress intended to deny benefits to those with pre-World War II service who did not also serve in wartime. Pp. 636-639. </s> 2. Congress authorized retirement pay as an inducement to continued service in order to maintain a cadre of trained soldiers for use on active duty should the need arise; Congress had the constitutional power to decide not to offer the inducement to reservists less likely to perform such duty than others. Pp. 639-640. </s> 409 F. Supp. 831, reversed. </s> STEVENS, J., delivered the opinion of the Court, in which all Members joined, except REHNQUIST, J., who took no part in the consideration or decision of the case. </s> Stephen L. Urbanczyk argued the cause for appellant pro hac vice. With him on the brief were Solicitor General Bork, Assistant Attorney General Lee, Deputy Solicitor General Jones, and William Kanter. </s> David Goldfarb argued the cause for appellee. With him on the brief were Kalman Finkel, Helaine Barnett, Joan Mangones, and John E. Kirklin. * </s> [Footnote * Penrose Lucas Albright filed a brief for the United States Merchant Marine Academy Alumni Assn. as amicus curiae urging affirmance. </s> [430 U.S. 634, 635] </s> MR. JUSTICE STEVENS delivered the opinion of the Court. </s> After World War II Congress authorized retirement pay for nonregular military personnel with at least 20 years of service in the Reserves or National Guard. 1 However, under 10 U.S.C. 1331 (c), those who had been in the Reserves before World War II are not eligible for benefits unless they performed active duty during wartime. 2 Appellee had no such active duty. 3 He contends that he may not be denied benefits for which he is otherwise eligible simply because he had prewar service in the Guard. In the District Court he argued that the statute violates the equal protection principle inherent in the Due Process Clause of the Fifth Amendment. In this Court he also argues that the statute should be construed as [430 U.S. 634, 636] merely providing that his years of prewar service must be ignored for the purpose of determining his eligibility. We reject both arguments. </s> The case is here on direct appeal from a summary judgment entered by a three-judge District Court sitting in the Eastern District of New York. 4 That court ordered the Secretary of the Army to pay retirement benefits to appellee and to place the members of the class he represents on the retirement rolls. 5 409 F. Supp. 831 (1976). Because the three-judge court was properly convened, 6 we have jurisdiction even though the decision of the District Court can be read as resting on its interpretation of the statute rather than squarely on constitutional grounds. 7 </s> Section 1331 (c) plainly discriminates between persons who [430 U.S. 634, 637] were in the Reserves before August 16, 1945, and those who performed their first service after that date. The statute says that the members of the former group are not "eligible for retired pay" unless they performed active duty during specified dates when the country was engaged in hostilities. </s> Appellee acknowledges that the statute creates two distinct classes of reservists. He contends, however, that the members of his class are not ineligible for benefits, but merely are prevented from counting pre-World War II service as part of the 20 years of "satisfactory service" needed to qualify. 8 The argument is foreclosed by the plain language of the statute. Moreover, the legislative history reveals a congressional purpose inconsistent with appellee's interpretation. </s> Section 1331 (c) is a description of persons who are not eligible for retirement pay. 9 It does not describe periods of service which may or may not be counted toward eligibility. Its text plainly disqualifies the persons it describes. Furthermore, 1331 (a), which defines the conditions of eligibility for retirement pay, states that a person meeting these conditions is entitled to retirement pay "[e]xcept as provided in subsection (c)." It is difficult to believe that language this clear could be the product of a drafting error. We are persuaded that Congress meant what it so plainly said. </s> An explanation for excluding certain persons from benefits - as opposed to excluding part of their service - was given by [430 U.S. 634, 638] the chairman of the Senate Armed Services Committee during the hearings on the bill. He pointed out that the provision would "make certain that no one who drops out of the Reserves to avoid service in the war is qualified under the bill. This is concurred in by the services and the Reserves." 10 The Senate Committee had been advised by the Army Chief of Staff that: "The purpose of reservists was to fight in the war. If he did not fight in the wars we did have, we feel he should not qualify." 11 </s> These comments describe a purpose to disqualify certain persons rather than merely a purpose to treat a part of their service as unsatisfactory. </s> In 1958 Congress amended 1331 (c) to remove the disqualification for persons who served in the Korean conflict. 12 The history of this amendment reflects an intent to make retirement pay available for otherwise "ineligible persons" rather than a desire to classify periods of service as satisfactory. 13 The statutory language and its legislative history [430 U.S. 634, 639] convincingly demonstrate that Congress made a deliberate decision to deny retirement pay to members of appellee's class. </s> Appellee argues that the Constitution requires equal treatment for all reservists with 20 years of satisfactory service and that it is totally irrational to disqualify some of them simply because they had additional years of service before August 16, 1945. We disagree. </s> The retirement pay program was intended to provide an inducement to qualified personnel to remain active in the Reserves in order to maintain a cadre of trained soldiers for use in active duty if the need should arise. 14 Such an inducement would be unlikely to achieve its intended purpose if offered to persons who had dropped out of the Reserves to avoid service during the war. 15 Moreover, the decision not [430 U.S. 634, 640] to offer the inducement to reservists whose failure to serve was involuntary, reflects a predictive judgment that a past obstacle to active service may have a continuing effect on future availability. </s> When Congress enacted the statute in 1948, it did not penalize the members of appellee's class; it merely made a judgment that they were somewhat less desirable prospects for future active duty than others, and therefore decided not to offer them a special inducement to remain in the Reserves. The statutory exclusion is unquestionably the product of a deliberate and rational choice which Congress had the constitutional power to make. </s> The judgment of the District Court is reversed. </s> It is so ordered. </s> MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 The Army and Air Force Vitalization and Retirement Equalization Act of 1948, 10 U.S.C. 1331 et seq., authorizes retirement pay for reservists and guardsmen who have accumulated 20 years of eligible service, are 60 years of age, and are not disqualified by 1331 (c). </s> [Footnote 2 Section 1331 (c) provides: "No person who, before August 16, 1945, was a Reserve of an armed force, or a member of the Army without component or other category covered by section 1332 (a) (1) of this title except a regular component, is eligible for retired pay under this chapter, unless he performed active duty after April 5, 1917, and before November 12, 1918, or after September 8, 1940, and before January 1, 1947, or unless he performed active duty (other than for training) after June 26, 1950, and before July 28, 1953." </s> [Footnote 3 Appellee served in the National Guard from 1933 to 1940 and again from 1947 to 1967. The record does not reveal the reason for appellee's failure to serve during World War II. Although he was in the Guard between June 26, 1950 and July 28, 1953, he performed no active duty (other than for training) during that time; again, the record does not reveal why he did not perform active duty during the Korean hostilities. At oral argument in the District Court appellee's counsel represented that appellee had been unable to serve in World War II because of injuries received in an automobile accident, but there is no support in the record for this assertion. For purposes of this appeal, however, we assume that his failure to serve in World War II was involuntary. </s> [Footnote 4 Federal jurisdiction was predicated on 28 U.S.C. 1361. </s> [Footnote 5 The class as certified by the District Court, App. 38, includes all "persons at least 60 years of age who have performed 20 years of service computed under 10 USC 1332 since August 16, 1945 and otherwise are entitled to Retired Pay for Non-Regular Military Service, except that before August 16, 1945 they were a Reserve of an armed force or a member of the Army without component and did not perform active duty after April 5, 1917 but before November 12, 1918, or after September 8, 1940 and before January 1, 1947, or after June 26, 1950 and before July 28, 1953, and therefore were disqualified from Retired Pay Benefits by virtue of 10 USC 1331 (c)." Id., at 6. The District Court stayed its judgment as to all members of the class other than appellee. </s> [Footnote 6 The only basis for injunctive relief set forth in the complaint was the alleged unconstitutionality of 1331 (c); a three-judge court was therefore required to hear the application for injunctive relief. See 28 U.S.C. 2282. </s> [Footnote 7 Title 28 U.S.C. 1253 provides: "Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." See Philbrook v. Glodgett, 421 U.S. 707, 712 -713, n. 8. </s> [Footnote 8 The same bill that contained 1331 (c) also created a point system for determining whether sufficient service was performed in a given year to count toward the 20-year requirement. 10 U.S.C. 1332. Years served before the point system are automatically considered "satisfactory service." 1332 (a). Appellee contends that Congress generally excluded such years of prior service because the point system had not been in effect, and therefore there was no way to determine whether substantial service had been rendered in those years. Then, appellee argues, Congress made an exception for those men who served in World War II as a reward for their wartime service. </s> [Footnote 9 Section 1331 (c) is quoted in full in n. 2, supra. </s> [Footnote 10 Hearings on H. R. 2744 before the Senate Committee on Armed Services, 80th Cong., 2d Sess., 77 (1948). </s> [Footnote 11 Id., at 29. </s> [Footnote 12 In the interim, there was a slight change in the language of the provision. As originally enacted, it provided that such persons would not be eligible for "retirement benefits." 302 (a), 62 Stat. 1087. When Title 10 was enacted into positive law, the language was changed to "retired pay." 70A Stat. 102. Appellee argues that the original language was ambiguous, because the phrase the "right to accrue retirement benefits" was used elsewhere in the same Act to refer to the accrual of credit for years of satisfactory service. See 304, 62 Stat. 1089. But we see no reason to assume that the same meaning was intended, for one section refers to "accrual" of additional benefits, while the other refers to "eligibility" for any benefits. </s> [Footnote 13 For instance, the Senate Report described the amendment as a bill "to make retired pay for nonregular service available to certain persons . . . ." S. Rep. No. 2188, 85th Cong., 2d Sess., 1 (1958). The same understanding was expressed during the House hearings by the representative of the Defense Department. He stated that "[t]he Department of [430 U.S. 634, 639] Defense favors the extension of such retirement benefits to a small group of Reserve personnel who would be eligible for this benefit but for the fact that they do not meet the requirement of having performed active service during World Wars I or II." Hearings on Consideration of S. 2630, H. R. 4381, H. R. 8775 and H. R. 781 before Subcommittee No. 1 of the House Committee on Armed Services, No. 88, 85th Cong., 2d Sess., 7897 (1957). A later colloquy is to the same effect: "Mr. Winstead. And there would be no differential in the pay for retirement with those years counted if this passed as to what they would get if we did not pass this? "Mr. Ducander. They won't be able to retire at all. "Mr. Winstead. They should be covered." Id., at 7905. </s> [Footnote 14 The Senate Report states that the primary purpose of the Act was "to provide an inducement to members of Reserve components to remain active in the Reserves over a long period of time, thereby providing a better trained and more ready Reserve to meet the needs of our national-defense structure." S. Rep. No. 1543, 80th Cong., 2d Sess., 9 (1948). See also Hearings on H. R. 2744, n. 10, supra, at 13 (testimony of Gen. Dahlquist), 22-24 (testimony of Col. Maas). </s> [Footnote 15 See the excerpt from the legislative history quoted, supra, at 638. Although the statutory exclusion is broader than necessary to accomplish that purpose, it cannot be doubted that it would apply to the persons that Congress wanted to be certain to disqualify. </s> [430 U.S. 634, 641]

United States Supreme Court MARTINEZ v. COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT(2000) No. 98-7809 Argued: November 9, 1999Decided: January 12, 2000 </s> Accused of converting a client's money to his own use while employed as a paralegal, petitioner Martinez was charged by California with grand theft and the fraudulent appropriation of another's property. He chose to represent himself at trial before a jury, which acquitted him of theft but convicted him of embezzlement. He then filed a timely notice of appeal, a motion to represent himself, and a waiver of counsel. The California Court of Appeal denied his motion to represent himself based on its prior holding that there is no constitutional right to self-representation on direct appeal under Faretta v. California, 422 U.S. 806 , in which this Court held that a criminal defendant has a constitutional right to conduct his own defense at trial when he voluntarily and intelligently elects to proceed without counsel, id., at 807, 836. The state court had explained that the right to counsel on appeal stems from the Due Process and Equal Protection Clauses of the Fourteenth Amendment, not from the Sixth Amendment on which Faretta was based, and held that the denial of self-representation at this level does not violate due process or equal protection. The California Supreme Court denied Martinez' application for a writ of mandate. </s> Held: Neither Faretta 's holding nor its reasoning requires a State to recognize a constitutional right to self-representation on direct appeal from a criminal conviction. Although some of Faretta 's reasoning is applicable to appellate proceedings as well as to trials, there are significant distinctions. First, the historical evidence Faretta relied on as identifying a right of self-representation, 422 U.S., at 812 -817, is not useful here because it pertained to times when lawyers were scarce, often mistrusted, and not readily available to the average person accused of crime, whereas it has since been recognized that every indigent defendant in a criminal trial has a constitutional right to the assistance of appointed counsel, see Gideon v. Wainwright, 372 U.S. 335 . Moreover, unlike the right recognized in Faretta, the historical evidence does not provide any support for an affirmative constitutional right to appellate self-representation. Second, Faretta 's reliance on the Sixth Amendment's structure interpreted in light of its English and colonial background, 422 U.S., </s> at 818-832, is not relevant here. Because the Amendment deals strictly with trial rights and does not include any right to appeal, see Abney v. United States, 431 U.S. 651, 656 , it necessarily follows that the Amendment itself does not provide any basis for finding a right to appellate self-representation. Faretta' s inquiries into historical English practices, 422 U.S., at 821 -824, do not provide a basis for extending that case to the appellate process because there was no appeal from a criminal conviction in England until 1907. Third, although Faretta 's </s> conclusion that a knowing and intelligent waiver of the right to trial counsel must be honored out of respect for individual autonomy, id., at 834, is also applicable in the appellate context, this Court has recognized that the right is not absolute, see id., at 835. Given the Court's conclusion that the Sixth Amendment does not apply to appellate proceedings, any individual right to self-representation on appeal based on autonomy principles must be grounded in the Due Process Clause. Under the practices prevailing in the Nation today, the Court is entirely unpersuaded that the risk of disloyalty by a court-appointed attorney, or the suspicion of such disloyalty, that underlies the constitutional right of self-representation at trial, see id., at 834, is a sufficient concern to conclude that such a right is a necessary component of a fair appellate proceeding. The States are clearly within their discretion to conclude that the government's interests in ensuring the integrity and efficiency of the appellate process outweigh an invasion of the appellant's interest in self-representation, although the Court's narrow holding does not preclude the States from recognizing a constitutional right to appellate self-representation under their own constitutions. Pp. 3-12. </s> Affirmed. </s> Stevens, J., delivered the opinion of the Court, in which Rehnquist, C.J., and O'Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Kennedy, J., and Breyer, J., filed concurring opinions. Scalia, J., filed an opinion concurring in the judgment. </s> SALVADOR MARTINEZ, PETITIONER v. COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT </s> on writ of certiorari to the supreme court of california </s> [January 12, 2000] </s> Justice Stevens delivered the opinion of the Court. </s> The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. </s> 1 </s> In Faretta v. California, 422 U.S. 806 (1975), we decided that the defendant also "has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." Id., at 807. Although that statement arguably embraces the entire judicial proceeding, we also phrased the question as whether a State may "constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." Ibid. Our conclusion in Faretta extended only to a defendant's "constitutional right to conduct his own defense." Id., at 836. Accordingly, our specific holding was confined to the right to defend oneself at trial. We now address the different question whether the reasoning in support of that holding also applies when the defendant becomes an appellant and assumes the burden of persuading a reviewing court that the conviction should be reversed. We have concluded that it does not. </s> I </s> Martinez describes himself as a self-taught paralegal with 25 years' experience at 12 different law firms. See App. 13. While employed as an office assistant at a firm in Santa Ana, California, Martinez was accused of converting $6,000 of a client's money to his own use. He was charged in a two-count information with grand theft and the fraudulent appropriation of the property of another. He chose to represent himself at trial before a jury, because he claimed "`there wasn't an attorney on earth who'd believe me once he saw my past [criminal record].'" Id., at 15. The jury acquitted him on Count 1, grand theft, but convicted him on Count 2, embezzlement. The jury also found that he had three prior convictions; accordingly, under California's "three strikes" law, the court imposed a mandatory sentence of 25-years-to-life in prison. See Cal. Penal Code §§667(d) and (e)(2) (West 1999). Martinez filed a timely notice of appeal as well as a motion to represent himself and a waiver of counsel. The California Court of Appeal denied his motion, and the California Supreme Court denied his application for a writ of mandate. While the California Supreme Court did not issue an opinion in this case, the Court of Appeal previously had explained: </s> "There is no constitutional right to self-representation on the initial appeal as of right. The right to counsel on appeal stems from the due process and equal protection clauses of the Fourteenth Amendment, not from the Sixth Amendment, which is the foundation on which Faretta is based. The denial of self-representation at this level does not violate due process or equal protection guarantees." People v. Scott , 64 Cal. App. 4th 550, 554, 75 Cal. Rptr. 2d 315, 318 (1998). </s> We granted certiorari because Martinez has raised a question on which both state and federal courts have expressed conflicting views. </s> 2 </s> 526 U.S. 1064 (1999). We now affirm. </s> II </s> The Faretta majority based its conclusion on three inter-related arguments. First, it examined historical evidence identifying a right of self-representation that had been protected by federal and state law since the beginning of our Nation, 422 U.S., at 812 -817. Second, it interpreted the structure of the Sixth Amendment, in the light of its English and colonial background, id., at 818-832. Third, it concluded that even though it "is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts," a knowing and intelligent waiver "must be honored out of `that respect for the individual which is the lifeblood of the law.' Illinois v. Allen, 397 U.S. 337, 350-351 [(1970)]." Faretta , 422 U.S., at 834 . Some of the Court's reasoning is applicable to appellate proceedings as well as to trials. There are, however, significant distinctions. </s> The historical evidence relied upon by Faretta as identifying a right of self-representation is not always useful because it pertained to times when lawyers were scarce, often mistrusted, and not readily available to the average person accused of crime. </s> 3 </s> For one who could not obtain a lawyer, self-representation was the only feasible alternative to asserting no defense at all. Thus, a government's recognition of an indigent defendant's right to represent himself was comparable to bestowing upon the homeless beggar a "right" to take shelter in the sewers of Paris. Not surprisingly, early precedent demonstrates that this "right" was not always used to the defendant's advantage as a shield, but rather was often employed by the prosecution as a sword. The principal case cited in Faretta is illustrative. In Adams v. United States ex rel. McCann, 317 U.S. 269 (1942), the Court relied on the existence of the right of self-representation as the basis for finding that an unrepresented defendant had waived his right to a trial by jury. </s> 4 </s> It has since been recognized, however, that an indigent defendant in a criminal trial has a constitutional right to the assistance of appointed counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963). Thus, an individual's decision to represent himself is no longer compelled by the necessity of choosing self-representation over incompetent or nonexistent representation; rather, it more likely reflects a genuine desire to "`conduct his own cause in his own words.'" Faretta , 422 U.S., at 823 (footnote omitted). Therefore, while Faretta is correct in concluding that there is abundant support for the proposition that a right to self-representation has been recognized for centuries, the original reasons for protecting that right do not have the same force when the availability of competent counsel for every indigent defendant has displaced the need--although not always the desire--for self-representation. </s> The scant historical evidence pertaining to the issue of self-representation on appeal is even less helpful. The Court in Faretta relied upon the description of the right in §35 of the Judiciary Act of 1789, 1 Stat. 92, which states that "the parties may plead and manage their own causes personally or by the assistance of such counsel ...." 422 U.S., at 812 . It is arguable that this language encompasses appeals as well as trials. Assuming it does apply to appellate proceedings, however, the statutory right is expressly limited by the phrase "as by the rules of the said courts." 1 Stat. 92. Appellate courts have maintained the discretion to allow litigants to "manage their own causes"--and some such litigants have done so effectively. </s> 5 </s> That opportunity, however, has been consistently subject to each court's own rules. </s> We are not aware of any historical consensus establishing a right of self-representation on appeal. We might, nonetheless, paraphrase Faretta and assert: No State or Colony ever forced counsel upon a convicted appellant, and no spokesman ever suggested that such a practice would be tolerable or advisable. 422 U.S., </s> at 832. Such negative historical evidence was meaningful to the Faretta Court, because the fact that the "[dog] had not barked" </s> 6 </s> arguably demonstrated that early lawmakers intended to preserve the "long-respected right of self-representation" at trial. Ibid. Historical silence, however, has no probative force in the appellate context because there simply was no long-respected right of self-representation on appeal. In fact, the right of appeal itself is of relatively recent origin. </s> Appeals as of right in federal courts were nonexistent for the first century of our Nation, and appellate review of any sort was "rarely allowed." Abney v. United States, 431 U.S. 651, 656 , n. 3 (1977). The States, also, did not generally recognize an appeal as of right until </s> Washington became the first to constitutionalize the right explicitly in 1889. </s> 7 </s> There was similarly no right to appeal in criminal cases at common law, and appellate review of any sort was "limited" and "rarely used." </s> 8 </s> Thus, unlike the inquiry in Faretta , the historical evidence does not provide any support for an affirmative constitutional right to appellate self-representation. </s> The Faretta majority's reliance on the structure of the Sixth Amendment is also not relevant. The Sixth Amendment identifies the basic rights that the accused shall enjoy in "all criminal prosecutions." They are presented strictly as rights that are available in preparation for trial and at the trial itself. The Sixth Amendment does not include any right to appeal. As we have recognized, "[t]he right of appeal, as we presently know it in criminal cases, is purely a creature of statute." Abney, 431 U.S., at 656 . It necessarily follows that the Amendment itself does not provide any basis for finding a right to self-representation on appeal. </s> The Faretta majority's nontextual interpretation of the Sixth Amendment also included an examination of British criminal jurisprudence and a reference to the opprobrious trial practices before the Star Chamber. 422 U.S., at 821 -824. These inquiries into historical English practices, however, again do not provide a basis for extending Faretta to the appellate process, because there was no appeal from a criminal conviction in England until 1907. See Griffin v. Illinois, 351 U.S. 12, 21 (1956) (Frankfurter, J., concurring in judgment); 7 Edw. VII, ch. 23 (1907). Indeed, none of our many cases safeguarding the rights of an indigent appellant has placed any reliance on either the Sixth Amendment or on Faretta. See, e.g., </s> Douglas v. California, 372 U.S. 353, 356-358 (1963); Griffin, 351 U.S., at 12 . </s> Finally, the Faretta majority found that the right to self-representation at trial was grounded in part in a respect for individual autonomy. See 422 U.S., at 834 . This consideration is, of course, also applicable to an appellant seeking to manage his own case. As we explained in Faretta , at the trial level "[t]o force a lawyer on a defendant can only lead him to believe that the law contrives against him." Ibid. On appellate review, there is surely a similar risk that the appellant will be skeptical of whether a lawyer, who is employed by the same government that is prosecuting him, will serve his cause with undivided loyalty. Equally true on appeal is the related observation that it is the appellant personally who will bear the consequences of the appeal. See ibid. </s> In light of our conclusion that the Sixth Amendment does not apply to appellate proceedings, any individual right to self-representation on appeal based on autonomy principles must be grounded in the Due Process Clause. Under the practices that prevail in the Nation today, however, we are entirely unpersuaded that the risk of either disloyalty or suspicion of disloyalty is a sufficient concern to conclude that a constitutional right of self-representation is a necessary component of a fair appellate proceeding. We have no doubt that instances of disloyal representation are rare. In both trials and appeals there are, without question, cases in which counsel's performance is ineffective. Even in those cases, however, it is reasonable to assume that counsel's performance is more effective than what the unskilled appellant could have provided for himself. </s> No one, including Martinez and the Faretta majority, attempts to argue that as a rule pro se representation is wise, desirable or efficient. </s> 9 </s> Although we found in Faretta that the right to defend oneself at trial is "fundamental" in nature, 422 U.S., </s> at 817, it is clear that it is representation by counsel that is the standard, not the exception. See Patterson v. Illinois, 487 U.S. 285, 307 (1988) (noting the "strong presumption against" waiver of right to counsel). Our experience has taught us that "a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney." </s> 10 </s> As the Faretta opinion recognized, the right to self-representation is not absolute. The defendant must "`voluntarily and intelligently'" elect to conduct his own defense, 422 U.S., at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-465 (1938)), and most courts require him to so in a timely manner. </s> 11 </s> He must first be "made aware of the dangers and disadvantages of self-representation." 422 U.S, at 835 </s> . A trial judge may also terminate self-representation or appoint "standby counsel"--even over the defendant's objection--if necessary. Id., at 834, n. 46. We have further held that standby counsel may participate in the trial proceedings, even without the express consent of the defendant, as long as that participation does not "seriously undermin[e]" the "appearance before the jury" that the defendant is representing himself. McKaskle v. Wiggins, 465 U.S. 168, 187 (1984). Additionally, the trial judge is under no duty to provide personal instruction on courtroom procedure or to perform any legal "chores" for the defendant that counsel would normally carry out. Id., at 183-184. Even at the trial level, therefore, the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer. </s> In the appellate context, the balance between the two competing interests surely tips in favor of the State. The status of the accused defendant, who retains a presumption of innocence throughout the trial process, changes dramatically when a jury returns a guilty verdict. We have recognized this shifting focus and noted: </s> "[T]here are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt.... </s> "By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made by a judge or a jury below." Ross v. Moffitt, 417 U.S. 600, 610 (1974). </s> In the words of the Faretta majority, appellate proceedings are simply not a case of "hal[ing] a person into its criminal courts." 422 U.S., at 807 . </s> The requirement of representation by trained counsel implies no disrespect for the individual inasmuch as it tends to benefit the appellant as well as the court. Courts, of course, may still exercise their discretion to allow a lay person to proceed pro se. We already leave to the appellate courts' discretion, keeping "the best interests of both the prisoner and the government in mind," the decision whether to allow a pro se appellant to participate in, or even to be present at, oral argument. Price v. Johnston, 334 U.S. 266, 284 (1948). Considering the change in position from defendant to appellant, the autonomy interests that survive a felony conviction are less compelling than those motivating the decision in Faretta . Yet the overriding state interest in the fair and efficient administration of justice remains as strong as at the trial level. Thus, the States are clearly within their discretion to conclude that the government's interests outweigh an invasion of the appellant's interest in self-representation. </s> III </s> For the foregoing reasons, we conclude that neither the holding nor the reasoning in Faretta requires California to recognize a constitutional right to self-representation on direct appeal from a criminal conviction. Our holding is, of course, narrow. It does not preclude the States from recognizing such a right under their own constitutions. Its impact on the law will be minimal, because a lay appellant's rights to participate in appellate proceedings have long been limited by the well-established conclusions that he has no right to be present during appellate proceedings, Schwab v. Berggren, 143 U.S. 442 (1892), or to present oral argument, Price, 334 U.S., at 285 -286. Meanwhile the rules governing appeals in California, and presumably those in other States as well, seem to protect the ability of indigent litigants to make pro se filings. See, e.g., </s> People v. Wende , 25 Cal. 3d 436, 440, 600 P.2d 1071, 1074 (1979); see also Anders v. California, 386 U.S. 738 (1967). In requiring Martinez, under these circumstances, to accept against his will a state-appointed attorney, the California courts have not deprived him of a constitutional right. Accordingly, the judgment of the California Supreme Court is affirmed. </s> It is so ordered. </s> SALVADOR MARTINEZ, PETITIONER v. COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT </s> on writ of certiorari to the supreme court of california </s> [January 12, 2000] </s> Justice Kennedy , concurring. </s> To resolve this case it is unnecessary to cast doubt upon the rationale of Faretta v. California , 422 U.S. 806 (1975). Faretta can be accepted as quite sound, yet it does not follow that a convicted person has a similar right of self-representation on appeal. Different considerations apply in the appellate system, and the Court explains why this is so. With these observations, I join the opinion of the Court. </s> SALVADOR MARTINEZ, PETITIONER v. COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT </s> on writ of certiorari to the supreme court of california </s> [January 12, 2000] </s> Justice Breyer , concurring. </s> I agree with the Court and join its opinion. Because Justice Scalia writes separately to underscore the continuing constitutional validity of Faretta v. California, 422 U.S. 806 (1975), I note that judges closer to the firing line have sometimes expressed dismay about the practical consequences of that holding. See e.g ., United States v. Farhad , 190 F.3d 1097, 1107 (CA9 1999) (concurring opinion) (right of self-representation "frequently, though not always, conflicts squarely and inherently with the right to a fair trial"). I have found no empirical research, however, that might help determine whether, in general, the right to represent oneself furthers, or inhibits, the Constitution's basic guarantee of fairness. And without some strong factual basis for believing that Faretta' s holding has proved counterproductive in practice, we are not in a position to reconsider the constitutional assumptions that underlie that case. </s> SALVADOR MARTINEZ, PETITIONER v. COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT </s> on writ of certiorari to the supreme court of california </s> [January 12, 2000] </s> Justice Scalia , concurring in the judgment. </s> I do not share the apparent skepticism of today's opinion concerning the judgment of the Court (often curiously described as merely the judgment of "the majority") in Faretta v. California , 422 U.S. 806 (1975). I have no doubt that the Framers of our Constitution, who were suspicious enough of governmental power--including judicial power--that they insisted upon a citizen's right to be judged by an independent jury of private citizens, would not have found acceptable the compulsory assignment of counsel by the Government to plead a criminal defendant's case. While I might have rested the decision upon the Due Process Clause rather than the Sixth Amendment, I believe it was correct. </s> That asserting the right of self-representation may often, or even usually, work to the defendant's disadvantage is no more remarkable--and no more a basis for withdrawing the right--than is the fact that proceeding without counsel in custodial interrogation, or confessing to the crime, usually works to the defendant's disadvantage. Our system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the State. Any other approach is unworthy of a free people. As Justice Frankfurter eloquently put it for the Court in Adams v. United States ex rel. McCann, 317 U.S. 269 (1942) , to require the acceptance of counsel "is to imprison a man in his privileges and call it the Constitution." Id., at 280. </s> In any event, Faretta is relevant to the question before us only to the limited extent that we must decide whether its holding applies to self-representation on appeal. It seems to me that question is readily answered by the fact that there is no constitutional right to appeal. See McKane v. Durston , 153 U.S. 684, 687-688 (1894). Since a State could, as far as the federal Constitution is concerned, subject its trial-court determinations to no review whatever, it could a fortiori subject them to review which consists of a nonadversarial reexamination of convictions by a panel of government experts. Adversarial review with counsel appointed by the State is even less questionable than that. </s> For these reasons, I concur in the judgment of the Court. </s> FOOTNOTES </s> Footnote 1 </s> See, e.g., </s> Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938); Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972). </s> Footnote 2 </s> Compare Myers v. Collins , 8 F.3d 249, 252 (CA5 1993) (finding right of self-representation extends to appeals); Campbell v. Blodgett , 940 F.2d 549, 549 (CA9 1991) (same); Chamberlain v. Ericksen , 744 F.2d 628, 630 (CA8 1984) (same); Commonwealth v. Rogers , 537 Pa. 581, 583, 645 A.2d 223, 224 (1994) (same); State v. Van Pelt , 305 Ark. 125, 127, 810 S.W. 2d 27, 28 (1991) (same); Webb v. State , 274 Ind. 540, 542, 412 N.E. 2d 790, 792 (1980) (same); Webb v. State , 533 S.W. 2d 780, 784 (Tex. Crim. App. 1976) (same), with United States v. Gillis , 773 F.2d 549, 560 (CA4 1985) (finding no right of self-representation on appeal); Lumbert v. Finley , 735 F.2d 239, 246 (CA7 1984) (same); Hill v. State , 656 So.2d 1271, 1272 (Fla. 1995) (same); State v. Gillespie , 898 S.W. 2d 738 (Tenn. Crim. App. 1994) (same). </s> Footnote 3 </s> "The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, `the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King's Court, all bent on the conviction of those who opposed the King's prerogatives, and twisting the law to secure convictions.' This prejudice gained strength in the Colonies where `distrust of lawyers became an institution.' Several Colonies prohibited pleading for hire in the 17th century. The prejudice persisted into the 18th century as `the lower classes came to identify lawyers with the upper class.' The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a `sudden revival, after the War of the Revolution, of the old dislike and distrust of lawyers as a class.'" Faretta , 422 U.S., at 826 -827 (footnotes omitted) </s> Footnote 4 </s> Similarly, in the state cases cited by the Court in Faretta , see 422 U.S., at 813 , n. 9, the defendant's right to represent himself was often the predicate for upholding the waiver of an important right. See, e.g ., Mackreth v. Wilson, 31 Ala. App. 191, 193, 15 So. 2d 112, 113 (1943) (failure of the defendant to request counsel equaled an "election" to proceed pro se ); Lockard v. State , 92 Idaho 813, 822, 451 P.2d 1014, 1023 (1969) (court relied on defendant's right of self-representation to uphold an uncounseled guilty plea, despite claims that it was coerced); People v. Nelson , 47 Ill. 2d 570, 268 N. E. 2d 2, 3 (1971) (defendant's pro se status is predicate for upholding waiver of indictment and jury trial and also to uphold guilty plea); Allen v. Commonwealth , 324 Mass. 558, 562-563, 87 N.E. 2d 192, 195 (1949) (life sentence upheld despite fact that indigent defendant was unable to procure counsel); Westberry v. State , 254 A.2d 44, 46 (Me. 1969) (guilty plea upheld because defendant failed to claim indigency or to request counsel); State v. Hollman , 232 S.C. 489, 499, 102 S.E. 2d 873, 878 (1958) (right of defendant to represent himself used as basis for finding he had no right to appointed counsel). But see State v. Thomlinson , 78 S.D 235, 237, 100 N.W.2d 121, 122 (1960) (vacating conviction based on court's failure to allow defendant to represent himself); State v. Penderville , 2 Utah.2d 281, 287, 272 P.2d 195, 199 (1954) (same); Cappetta v. State , 204 So.2d 913, 918 (Fla. App. 1967) (same), rev'd, State v. Capetta , 216 So.2d 749, 750 (Fla. 1968) (finding voluntary and intelligent waiver of right to proceed pro se ). </s> Footnote 5 </s> See, e.g., SEC v. Sloan, 436 U.S. 103 (1978) ( pro se respondent argued, briefed, and prevailed in the Court of Appeals for the Second Circuit and this Court). </s> Footnote 6 </s> A. Conan Doyle, Silver Blaze, in The Complete Sherlock Holmes 383, 400 (1938). </s> Footnote 7 </s> See Lobsenz, A Constitutional Right to An Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction, 8 U. Puget Sound L.Rev. 375, 376 (1985). Although Washington was the first State to constitutionalize an appeal as of right, almost all of the States historically had some form of discretionary appellate review. See, generally, L. Orfield, Criminal Appeals in America </s> 215-231 (1939). </s> Footnote 8 </s> 1 J. Stephen, A History of the Criminal Law of England 308-310 (1883). </s> Footnote 9 </s> Some critics argue that the right to proceed pro se at trial in certain cases is akin to allowing the defendant to waive his right to a fair trial. See, e.g., </s> United States v. Farhad , 190 F.3d 1097, 1106-1107 (CA9 1999) (Reinhardt, J., concurring specially), cert. pending, No. 99-7127. </s> Footnote 10 </s> Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years after Faretta, 6 Seton Hall Const. L. J. 483, 598 (1996). </s> Footnote 11 </s> See id., at 544-550 (collecting cases).

United States Supreme Court DALLAS v. STANGLIN(1989) No. 87-1848 Argued: March 1, 1989Decided: April 3, 1989 </s> For the express purpose of providing a place where teenagers can socialize with each other but not be subject to the potentially detrimental influences of older teenagers and adults, a Dallas ordinance authorizes the licensing of "Class E" dance halls, restricting admission thereto to persons between the ages of 14 and 18 and limiting their hours of operation. Respondent, whose roller-skating rink and Class E dance hall share a divided floorspace, filed suit in state court to enjoin the ordinance's age and hour restrictions, contending, inter alia, that they violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The trial court upheld the ordinance, but the Texas Court of Appeals struck down the ordinance's age restriction, holding that it violated the First Amendment associational rights of minors. </s> Held: </s> 1. The ordinance does not infringe on the First Amendment right of association. Respondent's patrons, who may number as many as 1,000 per night, are not engaged in a form of "intimate association." Nor do the opportunities of adults and minors to dance with one another, which might be described as "associational" in common parlance, involve the sort of "expressive association" that the First Amendment has been held to protect. The teenagers who congregate are not members of any organized association, and most are strangers to one another. The dance hall admits all who pay the admission fee, and there is no suggestion that the patrons take positions on public questions or perform other similar activities. Moreover, the Constitution does not recognize a generalized right of "social association" that includes chance encounters in dance halls. Griswold v. Connecticut, 381 U.S. 479, 483 , distinguished. Pp. 23-25. </s> 2. The ordinance does not violate the Equal Protection Clause because there is a rational relationship between the age restriction for Class E dance halls and the city's interest in promoting the welfare of teenagers. Respondent's claims - that the ordinance does not meet the city's objectives because adults and teenagers can still associate with one another in places such as his skating rink and that there are other, less intrusive, alternatives to achieve the objectives - misapprehend the nature of [490 U.S. 19, 20] rational-basis scrutiny, the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. Under this standard, a classification that has some reasonable basis does not offend the Constitution because it is imperfect. Here, the city could reasonably conclude that teenagers might be more susceptible to corrupting influences if permitted to frequent dance halls with older persons or that limiting dance-hall contacts between adults and teenagers would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, or promiscuous sex. While the city permits teenagers and adults to roller-skate together, skating involves less physical contact than dancing, a differentiation that need not be striking to survive rational-basis scrutiny. Pp. 25-28. </s> 744 S. W. 2d 165, reversed and remanded. </s> REHNQUIST, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 28. </s> Craig Hopkins argued the cause for petitioners. With him on the briefs were Analeslie Muncy and Kenneth C. Dippel. </s> Daniel J. Sheehan, Jr., argued the cause and filed a brief for respondent. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the National Institute of Municipal Officers by William I. Thornton, Jr., Frank B. Gummey III, William H. Taube, Roy D. Bates, Robert J. Alfton, James K. Baker, Robert J. Mangler, Neal E. McNeill, Dante R. Pellegrini, Clifford D. Pierce, Jr., Benjamin L. Brown, and Charles S. Rhyne; and for the United States Conference of Mayors et al. by Benna Ruth Solomon. </s> CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. </s> Petitioner city of Dallas adopted an ordinance restricting admission to certain dance halls to persons between the ages of 14 and 18. Respondent, the owner of one of these "teenage" dance halls, sued to contest the constitutional validity of the ordinance. The Texas Court of Appeals held that the ordinance violated the First Amendment right of persons between the ages of 14 and 18 to associate with persons outside [490 U.S. 19, 21] that age group. We now reverse, holding that the First Amendment secures no such right. </s> In 1985, in response to requests for dance halls open only to teenagers, the city of Dallas authorized the licensing of "Class E" dance halls. 1 The purpose of the ordinance was to provide a place where teenagers could socialize with each other, but not be subject to the potentially detrimental influences of older teenagers and young adults. The provision of the ordinance at issue here, Dallas City Code 14-8.1 (1985), restricts the ages of admission to Class E dance halls to persons between the ages of 14 and 18. 2 This provision, as [490 U.S. 19, 22] enacted, restricted admission to those between 14 and 17, but it was subsequently amended to include 18-year-olds. Parents, guardians, law enforcement, and dance-hall personnel are excepted from the ordinance's age restriction. The ordinance also limits the hours of operation of Class E dance halls to between 1 p.m. and midnight daily when school is not in session. 14-5(d)(2). </s> Respondent operates the Twilight Skating Rink in Dallas and obtained a license for a Class E dance hall. He divided the floor of his roller-skating rink into two sections with moveable plastic cones or pylons. On one side of the pylons, persons between the ages of 14 and 18 dance, while on the other side, persons of all ages skate to the same music - usually soul and "funk" music played by a disc jockey. No age or hour restrictions are applicable to the skating rink. Respondent does not serve alcohol on the premises, and security personnel are present. The Twilight does not have a selective admissions policy. It charges between $3.50 and $5 per person for admission to the dance hall and between $2.50 and $5 per person for admission to the skating rink. Most of the patrons are strangers to each other, and the establishment serves as many as 1,000 customers per night. </s> Respondent sued in the District Court of Dallas County to enjoin enforcement of the age and hour restrictions of the ordinance. He contended that the ordinance violated substantive due process and equal protection under the United States and Texas Constitutions, and that it unconstitutionally infringed the rights of persons between the ages of 14 and 17 (now 18) to associate with persons outside that age bracket. 3 The trial court upheld the ordinance, finding that it was rationally [490 U.S. 19, 23] related to the city's legitimate interest in ensuring the safety and welfare of children. </s> The Texas Court of Appeals upheld the ordinance's time restriction, but it struck down the age restriction. 744 S. W. 2d 165 (1987). The Court of Appeals held that the age restriction violated the First Amendment associational rights of minors. To support a restriction on the fundamental right of "social association," the court said that "the legislative body must show a compelling interest," and the regulation "must be accomplished by the least restrictive means." Id., at 168. The court recognized the city's interest in "protect[ing] minors from detrimental, corrupting influences," ibid., but held that the "City's stated purposes . . . may be achieved in ways that are less intrusive on minors' freedom to associate," id., at 169. The Court of Appeals stated that "[a] child's right of association may not be abridged simply on the premise that he `might' associate with those who would persuade him into bad habits," and that "neither the activity of dancing per se, nor association of children aged fourteen through eighteen with persons of other ages in the context of dancing renders such children peculiarly vulnerable to the evils that defendant City seeks to prevent." Ibid. We granted certiorari, 488 U.S. 815 (1988), and now reverse. </s> The dispositive question in this case is the level of judicial "scrutiny" to be applied to the city's ordinance. Unless laws "create suspect classifications or impinge upon constitutionally protected rights," San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 40 (1973), it need only be shown that they bear "some rational relationship to a legitimate state purpose," id., at 44. Respondent does not contend that dance-hall patrons are a "suspect classification," but he does urge that the ordinance in question interferes with associational rights of such patrons guaranteed by the First Amendment. </s> While the First Amendment does not in terms protect a "right of association," our cases have recognized that it embraces [490 U.S. 19, 24] such a right in certain circumstances. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), we noted two different sorts of "freedom of association" that are protected by the United States Constitution: </s> "Our decisions have referred to constitutionally protected `freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment - speech, assembly, petition for the redress of grievances, and the exercise of religion." Id., at 617-618. </s> It is clear beyond cavil that dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of "intimate human relationships" referred to in Roberts. The Texas Court of Appeals, however, thought that such patrons were engaged in a form of expressive activity that was protected by the First Amendment. We disagree. </s> The Dallas ordinance restricts attendance at Class E dance halls to minors between the ages of 14 and 18 and certain excepted adults. It thus limits the minors' ability to dance with adults who may not attend, and it limits the opportunity of such adults to dance with minors. These opportunities might be described as "associational" in common parlance, but they simply do not involve the sort of expressive association that the First Amendment has been held to protect. The hundreds of teenagers who congregate each night at this particular dance hall are not members of any organized association; they are patrons of the same business establishment. [490 U.S. 19, 25] Most are strangers to one another, and the dance hall admits all who are willing to pay the admission fee. There is no suggestion that these patrons "take positions on public questions" or perform any of the other similar activities described in Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987). </s> The cases cited in Roberts recognize that "freedom of speech" means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes - for example, walking down the street or meeting one's friends at a shopping mall - but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons - coming together to engage in recreational dancing - is not protected by the First Amendment. Thus this activity qualifies neither as a form of "intimate association" nor as a form of "expressive association" as those terms were described in Roberts. </s> Unlike the Court of Appeals, we do not think the Constitution recognizes a generalized right of "social association" that includes chance encounters in dance halls. The Court of Appeals relied, mistakenly we think, on a statement from our opinion in Griswold v. Connecticut, 381 U.S. 479, 483 (1965), that "[t]he right to freely associate is not limited to `political' assemblies, but includes those that `pertain to the social, legal, and economic benefit' of our citizens." 744 S. W. 2d, at 168, quoting Griswold v. Connecticut, supra, at 483. But the quoted language from Griswold recognizes nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics. </s> The Dallas ordinance, therefore, implicates no suspect class and impinges on no constitutionally protected right. The question remaining is whether the classification engaged in by the city survives "rational-basis" scrutiny under the Equal Protection Clause. The city has chosen to impose a [490 U.S. 19, 26] rule that separates 14- to 18-year-olds from what may be the corrupting influences of older teenagers and young adults. Ray Couch, an urban planner for the city's Department of Planning and Development, testified: </s> "`[O]lder kids [whom the ordinance prohibits from entering Class E dance halls] can access drugs and alcohol, and they have more mature sexual attitudes, more liberal sexual attitudes in general. . . . And we're concerned about mixing up these [older] individuals with youngsters that [sic] have not fully matured.'" 744 S. W. 2d, at 168, n. 3. </s> A Dallas police officer, Wesley Michael, testified that the age restriction was intended to discourage juvenile crime. </s> Respondent claims that this restriction "has no real connection with the City's stated interests and objectives." Brief for Respondent 13. Except for saloons and teenage dance halls, respondent argues, teenagers and adults in Dallas may associate with each other, including at the skating area of the Twilight Skating Rink. Id., at 14. Respondent also states, as did the court below, that the city can achieve its objectives through increased supervision, education, and prosecution of those who corrupt minors. Id., at 15. </s> We think respondent's arguments misapprehend the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. In Dandridge v. Williams, 397 U.S. 471 (1970), in rejecting the claim that Maryland welfare legislation violated the Equal Protection Clause, the Court said: </s> "[A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 . [490 U.S. 19, 27] `The problems of government are practical ones and may justify, if they do not require, rough accommodations - illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69 -70. . . . </s> ". . . [The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." Id., at 485-486 (footnote omitted). </s> We think that similar considerations support the age restriction at issue here. As we said in New Orleans v. Dukes, 427 U.S. 297, 303 -304 (1976): "[I]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment." See also United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 177 (1980). The city could reasonably conclude, as Couch stated, that teenagers might be susceptible to corrupting influences if permitted, unaccompanied by their parents, to frequent a dance hall with older persons. See 7 E. McQuillin, Law of Municipal Corporations 24.210 (3d ed. 1981) ("Public dance halls have been regarded as being in that category of businesses and vocations having potential evil consequences"). The city could properly conclude that limiting dance-hall contacts between juveniles and adults would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, and promiscuous sex. 4 It is true that the city allows teenagers [490 U.S. 19, 28] and adults to roller-skate together, but skating involves less physical contact than dancing. The differences between the two activities may not be striking, but differentiation need not be striking in order to survive rational-basis scrutiny. </s> We hold that the Dallas ordinance does not infringe on any constitutionally protected right of association, and that a rational relationship exists between the age restriction for Class E dance halls and the city's interest in promoting the welfare of teenagers. The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 Dallas also licenses Class A, B, and C dance halls, which differ in the number of days per week dancing is permitted; Class D is for dance instruction. Persons under 17 must be accompanied by a parent for admission to Class A, B, and C dance halls. Dallas City Code 14-1, 14-8 (1985-1986). A dance-hall license is not needed if the dance is at any of the following locations: a private residence from which the general public is excluded; a place owned by the federal, state, or local government; a public or private elementary school, secondary school, college, or university; a place owned by a religious organization; or a private club. Ibid. </s> [Footnote 2 Section 14-8.1 of the Dallas City Code provides: "(a) No person under the age of 14 years or over the age of 18 years may enter a Class E dance hall. "(b) A person commits an offense if he is over the age of 18 years and: "(1) enters a Class E dance hall; or "(2) for the purposes of gaining admittance into a Class E dance hall, he falsely represents himself to be: "(A) of an age from 14 years through 18 years; "(B) a licensee or an employee of the dance hall; "(C) a parent or guardian of a person inside the dance hall; "(D) a governmental employee in the performance of his duties. "(c) A licensee or an employee of a Class E dance hall commits an offense if he knowingly allows a person to enter or remain on the premises of a dance hall who is: "(1) under the age of 14 years; or "(2) over the age of 18 years. "(d) It is a defense to prosecution under Subsections (b)(1) and (c)(2) that the person is: "(1) a licensee or employee of a dance hall; "(2) a parent or guardian of a person inside the dance hall; or "(3) a governmental employee in the performance of his duties." </s> [Footnote 3 The Court of Appeals held that respondent had standing to assert the associational rights of the teenage patrons of his establishment. 744 S. W. 2d 165, 168 (1987). That issue has not been raised before us. </s> [Footnote 4 The Court considered similar factors in Prince v. Massachusetts, 321 U.S. 158 (1944), where it upheld, over claims of infringement on religious freedom and equal protection, a statute prohibiting children under 12 from selling newspapers on the street. After noting that the statute would have been invalid if applied to adults, the Court said: "The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. . . . Among evils most appropriate for such action are the crippling effects of child employment, more especially in public [490 U.S. 19, 28] places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power." Id., at 168-169 (footnotes omitted). See also Bellotti v. Baird, 443 U.S. 622, 635 (1979) (plurality opinion), quoting McKeiver v. Pennsylvania, 403 U.S. 528, 550 (plurality opinion) ("State is entitled to adjust its legal system to account for children's vulnerability and their need for concern, . . . sympathy, and . . . paternal attention'"); Ginsberg v. New York, 390 U.S. 629 (1968) (upholding right of State to prohibit sale of "girlie" magazines to minors). </s> JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, concurring in the judgment. </s> In my opinion the opportunity to make friends and enjoy the company of other people - in a dance hall or elsewhere - is an aspect of liberty protected by the Fourteenth Amendment. For that reason, I believe the critical issue in this case involves substantive due process rather than the First Amendment right of association. Nonetheless, I agree with the Court that the city has adequately justified the ordinance's modest impairment of the liberty of teenagers. Indeed, I suspect that the ordinance actually gives teenagers [490 U.S. 19, 29] greater opportunity to associate than they would have if the Class E dance-hall provision were invalidated. * I therefore join the Court's judgment. </s> [Footnote * I do not join the Court's assessment of this case under the Equal Protection Clause. Although the equal protection issue received nominal attention in the trial court, see Pet. for Cert. C-1 to C-7, it was neither reviewed by the Texas Court of Appeals nor briefed before us. See 744 S. W. 2d 165 (1987); Pet. for Cert. 3; Brief for Petitioners 4. </s> [490 U.S. 19, 30]

United States Supreme Court INTERSTATE OIL PIPE LINE CO. V. STONE(1949) No. 287 Argued: January 13, 1949Decided: June 20, 1949 </s> Rehearing Denied Oct. 10, 1949. See . Appeal from the Supreme Court of the State of Mississippi. [ Interstate Oil Pipe Line Co. v. Stone 337 U.S. 662 (1949) ] </s> [337 U.S. 662 , 663] </s> Mr. Phelan H. Hunter, Tulsa, Okl., for appellant. Mr. J. H. Sumrall, Jackson, Miss., for appellee. </s> Mr. Justice RUTLEDGE announced the judgment of the Court and the following opinion, in which Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice MURPHY join. This appeal questions the power of Mississippi, as affected by the commerce clause, to impose a tax measured by gross receipts from the operation of a pipe line wholly within the state. Appellant is a Delaware corporation which has qualified to do business in Mississippi as a foreign corporation. It owns and operates pipe lines which are used to transport oil from lease tanks in various oil fields in Mississippi to loading racks adjacent to railroads elsewhere in the state. 1 From these racks the oil is pumped into railroad tank cars for shipment outside the state. If there are no tank cars available the oil is stored in tanks near the racks. But such delays in loading are usually of short duration and never exceed a week, according to appellant's uncontradicted statement. When delivered to appellant the oil is accompanied by shipping orders from the producer or owner directing that the oil be transported to out-of-state destinations. There are no refineries in Mississippi. There is no through bill of lading from the point of origin at the fields to the destination outside the state. Appellant ships the oil by rail as agent of the owner on bills of lading showing the owner as shipper, </s> [337 U.S. 662 , 664] </s> the appellant as agent of the shipper and indicating the destination specified in the shipping orders issue to appellant. Appellant is paid by the producer at the rate per barrel specific in its tariff2 from the gathering point to the rack and is paid an additional charge for loading the oil in the tank cars. The chairman of the Mississippi State Tax Commission, appellee, levied a tax against appellant for the years 1944, 1945 and the first half of 1946, in the sum of $20,296.36, measured by appellant's receipts for transporti g oil from the lease tanks to the railroad loading platforms, pursuant to the following sections of the Mississippi Code, Miss. Code, 1942, Ann., tit. 40, c. 3, 10105, 10109 (Supp. 1948), which provide: '10105. There is hereby levied and shall be collected annual privilege taxes, measured by the amount or volume of business done, against the persons, on account of the business activities, and in the amounts to be determined by the application of rates against values, or gross income, or gross proceeds of sales, as the case may be, as follows ( see sections following):' </s> '10109. * * * Upon every person engaging or continuing within this state in the business of operating a pipe line for transporting for compensation or hire from one point to another in this state oil or natural gas or artificial gas through pipes or conduits in this state, there is likewise hereby levied and shall be collected a tax, on account of the business engaged in, equal to two per cent of the gross income of the business. * * * </s> [337 U.S. 662 , 665] </s> 'There shall be excepted from the gross income used in determining the measure of the tax imposed in this section so much thereof as is derived from the business conducted in commerce between this state and other states of the United States, or between this state and foreign countries which the state of Mississippi is prohibited from taxing under the constitution of the United States of America. * * *'3 </s> The State Tax Commission sustained the assessment. The trial court dismissed a declaration seeking review of the Commission's action. The Supreme Court of Mississippi affirmed that judgment, overruling appellant's contention that because the tax was levied on the privilege of conducting an interstate business and measured by gross receipts therefrom the tax could not be imposed without offending the commerce clause of the Federal Constitution. 203 Miss. 715, 35 So.2d 73. The state supreme Court held that the operation of these pipe lines between points within the state was intrastate rather than interstate commerce, and that the tax was therefore 'merely on the privilege of operating a pipe line wholly within this State as a local activity. * * * a tax on the privilege of doing an intrastate business, and measured by a percent of gross income as a matter of convenience.' 203 Miss. at 715, 35 So.2d at page 81. Appellant contends that operation of the pipe lines between points in Mississippi was in fact interstate commerce, and that the tax was construed by the Supreme Court of Mississippi to be a tax on the privilege of oper- </s> [337 U.S. 662 , 666] </s> ating the pipe lines. From these premises, together with the major premise that no state can tax the privilege of engaging in interstate commerce, appellant concludes that the tax may not constitutionally be imposed. We do not pause to consider whether the business of operating the intrastate pipe lines is interstate commerce for, even if we assume that it is, Mississippi has power to impose the tax involved in this case. Further, we do not find it necessary to dispute that the Supreme Court of Mississippi construed the statute as imposing a tax on the privilege of operating a pipe line wholly within the state, and not a tax solely upon the 'local activities of 'maintaining, keeping in repair, and otherwise in manning the facilities" situated in Mississippi, Memphis Gas Co. v. Stone, 335 U.S. 80 , 92-93, 1481, or upon the gross receipts themselves, Central Greybound Lines v. Mealey, 334 U.S. 653 , 68 S. Ct. 1260. While we are of course bound by the constructio given a state statute by the highest court of the State,4 we are concerned with the practical operation of challenged state tax statutes, not with their descriptive labels. 5 </s> The statute is not invalidated by the commerce clause of the Federal Constitution merely because, unlike the statute attacked in Memphis Gas Co. v. Stone, supra, it imposes a 'direct' tax on the 'privilege' of engaging in interstate commerce. 6 Any notions to the contrary should not have survived Maine v. Grand Trunk R. Co., 142 U.S. 217, 163 , which flatly rules the case at bar. That case sustained a state statute which imposed upon an interstate railroad corporation 'an annual excise tax </s> [337 U.S. 662 , 667] </s> (measured by apportioned gross receipts), for the privilege of exercising its franchises in this State.'7 The Grand Trunk decision has been approved by this Court as recently as the other controlling case of Central Greyhound Lines v. Mealey, supra, 334 U.S. at page 658, 663, 68 S.Ct. at pages 1263, 1266, in which the Court permitted New York to impose a tax on the gross receipts from the operation of an interstate bus line, provided that tax was apportioned according to mileage traveled within the state. The Mealey case is not distinguished by saying that it involved only a tax on gross receipts and not a tax on interstate commerce itself, for gross receipts taxes have long been regarded as 'direct' in cases which are supposed to support the proposition that 'direct' taxes on interstate commerce are invalid under the commerce clause. 8 </s> Since all the activities upon which the tax is imposed are carried on in Mississippi, there is no due process ob- </s> [337 U.S. 662 , 668] </s> jection to the tax. 9 The tax does not discriminate against interstate commerce in favor of competing intrastate commerce of like character. 10 The nature of the subject of taxation makes apportionment unnecessary; there is no attempt to tax interstate activity carried on outside Missi sippi's borders. No other state can repeat the tax. 11 For these reasons the commerce clause does not invalidate this tax. The judgment is affirmed. Affirmed. </s> Mr. Justice BURTON, concurring. I join in the judgment of affirmance announced by the Court but do not join in the opinion rendered in support of it. I concur in the judgment solely on the ground that the tax imposed by the State of Mississippi was a tax on the privilege of operating a pipe line for transporting oil in Mississippi in intrastate commerce and that, as such, it was a valid tax. The Supreme Court of Mississippi, in the case below, 203 Miss. 715, 35 So.2d 73, held that this tax had been authorized by a statute of that State, Miss. Code Ann. 10105, 10109 (1942), and, for the reasons stated by that court, I believe that neither the statute nor the application of the tax in the present instance violated the Constitution of the United States. </s> [337 U.S. 662 , 669] </s> On that basis, there is no issue here as to the validity of a tax upon the privilege of transporting oil in Mississippi in interstate commerce. </s> Mr. Justice REED, with whom The CHIEF JUSTICE, Mr. Justice FRANKFURTER and Mr. Justice JACKSON joint dissenting. Mississippi's effort to collect a privilege tax from this appellant for 'operating a pipe line' is upheld by this Court through two separately expressed theories. One, that the activities taxed are wholly intrastate and the other that even though the privilege taxed is for the carrying on of wholly intertate operations, such a privilege tax is permissible. As each theory may have effect far beyond this particular case, we think it advisable to state the reasons for our disagreement with both. The tax which Mississippi demanded, and which appellant is now trying to recover, was computed only upon appellant's receipts as a common carrier for transporting oil from the lease tanks to the railroad loading platforms within the state. The Supreme Court of Mississippi upheld this tax on the ground that the activity producing the receipts was intra- rather than interstate commerce. At one point in its opinion, the Supreme Court of Mississippi said that the tax 'had been collected for the privilege of operating the pumping machinery and other pipe line equipment in the transportation of oil in the manner hereinbefore set forth * * *.' Interstate Oil Pipeline Co. v. Stone, 203 Miss. 715, 35 So.2d 73, 75. See an opinion of three members of this Court in Memphis Natural Gas Co. v. Stone, 335 U.S. 80 . The section here in question gives no indication of such a purpose. It thus differs widely from the statute under consideration in the Memphis case with its definition of 'doing business.' See Stone v. Memphis Natural Gas Co., 201 Miss. 670, 29 So.2d 268, 270. Since this statute did </s> [337 U.S. 662 , 670] </s> not apply to pipe lines reaching across the state line, we conclude that the Supreme Court did not mean by these words to indicate that the privilege tax of 10109 for 'operating a pipe line' was for the privilege of operating pumping machinery or other equipment as incidents apart from the flow of the interstate commerce. Cf. Coverdale v. Pipe Line Co., 303 U.S. 604 . Such an interpretation would be inconsistent with the nonliability for the tax of pipe lines, admittedly doing an interstate business. The tax, it said, was 'merely on the privilege of operating a pipe line wholly within this State as a local activity. * * * a tax on the privilege of doing an intrastate business, and measured by a percent of gross income as a matter of convenience.' 35 So.2d at page 81. The opinion emphasizes that in the view of the state court it is the intrastate character of the transportation that makes it permissible to charge the appellant a tax for the privilege of 'engaging * * * in the business of operating a pipe line.' 10109.1 It considered taxability of the transportation in the light of Coe v. Town of Errol, 116 U.S. 517 , and Champlain Realty Co. v. Town of Brattleboro, 260 U.S. 366, 25 A.L.R. 1195. First. From the facts, 10105 and 10109 of the statute, and the opinion of the Supreme Court of Mississippi, we believe that this statute was determined by the state to impose a privilege tax for carrying on the intrastate business of common carrier of oil in Mississippi and that </s> [337 U.S. 662 , 671] </s> the amount of that privilege tax was to be determined by a measure-two percent of the gross income-of that intrastate business. Mississippi's interpretation of the meaning of its statute is binding on this Court. 2 A federal question at once emerges-whether the shipment of the oil from the gathering point to the railroad loading racks, both points being in Mississippi, is intra- or interstate transportation. This we decide for ourselves from the undisputed facts in this record. 3 Our first inquiry then must be as to whether the transportation of this oil, wholly within Mississippi from origin to railroad loading racks, is in interstate or intrastate commerce. 4 </s> In the absence of a rule written into the Constitution or enacted by Congress to determine what transportation is interstate and what intrastate, the courts have been required to determine the character of the transportation, case by case, as it became necessary to reach a judicial conclusion. It was decided years ago in The Daniel Ball, 10 Wall. 557, as to navigation on a waterway within a single state, disconnected from any other transportation system leading to or from other states, that the carriage of freight destined for or received from places outside the state of navigation was interstate commerce and made </s> [337 U.S. 662 , 672] </s> the boat subject to regulation by Congress. 5 The wording of a judicial declaration of the precise line that marks the change from intrastate movement to interstate movement has been difficult. In Coe v. Town of Errol, 116 U.S. 517 , a case that dealt with the taxability by New Hampshire of logs moved from her forests to a place of shipment in readiness for out-of-state transportation at the convenience of the owner, this Court held the logs taxable. The theory was that the first movement was preliminary to the interstate transportation,6 because of the deliberate </s> [337 U.S. 662 , 673] </s> detention to await a suitable time for shipment across a state line. Kelley v. Rhoads, 188 U.S. 1, 6 , 261. But where there was no intentional delay, only they use of a 'harbor of refuge,' the interstate transportation by floatage began when the logs were put into the water. Champlain Realty Co. v. Town of Brattleboro, 260 U.S. 366, 25 A.L.R. 1195.7 Incidental dealings with the moving commodity do not break the interstate journey. 8 Recently we have considered the effect of 'split' means of transportation as to whether the transportation was interstate. United States v. Capital Transit Co., 325 U.S. 357, 363 , 1179. There a traveler went from the District </s> [337 U.S. 662 , 674] </s> of Columbia via streetcar or bus to a bus terminal and from there by a different bus to nearby Virginia. We held this to be interstate transportation. 9 </s> Comment should be made as to several precedents that might be thought contrary to the rather definite line marking the beginning of interstate commerce that appears in the above cases. These are the so-called casual or incidental movements of transportation wholly within a single state immediately preceding or following recognized interstate transportation. They were referred to in Coe v. Errol, supra, as haulage preliminary to consignment to interstate carriers. This involves the vehicles that carry passengers or freight to or from terminals in their interstate movement. 10 An int rstate journey </s> [337 U.S. 662 , 675] </s> must have a beginning and an end. Common sense rejects an extension of the journey to the traveler's front door or the producer's farm or factory when no through order for carriage is in effect. The exact limits of interstate commerce in such fringe situations are uncertain. 11 </s> We are of the view, however, that the reach of interstate commerce goes to the delivery to Interstate, a common carrier, of the oil by the producer with his tender of shipment. That offer, when accepted, by its form is an order covering the amount of oil, origin and out-of-state destination, and the route and tariff under which shipment is made. The commodity has been placed in the stream of commerce and will cross state lines in the regular course of business. We have held that shipping instructions, given to a freight conductor on a common carrier prior to any movement, put a car into interstate commerce12 when the instructions were for shipment to an out-of-state destination after a preliminary transit between points in the state of loading. When a shipper delivers his commodity to a common carrier with instructions for billing by such carrier without purposeful delay via another or other common carriers to an out-of-state destination, we think interstate commerce has begun. Such an application of the commerce clause to transporta- </s> [337 U.S. 662 , 676] </s> tion accords with that given to regulation of other phases of interstate commerce. 13 The absence of a through bill of lading is not significant. It is true that the shipment might be diverted to an intrastate destination without crossing a state line but that cannot change the character of the commerce until such diversion order is given. The movement in commerce has begun by the order and the delivery and continues until the commodity is restored to the mass of property whithin a state by the termination of the transportation. See Joy Oil Co. v. State Tax Commission, 337 U.S. 286 . Second. Mississippi determined that this tax was a privilege tax for carrying on the intrastate business of common carrier of oil in Mississippi, measured by a percentage of the income from that business. The preceding subdivision of this opinion expounds the arguments for our conclusion that all the business of appellant in operating a pipe line for transporting oil committed to move out-of-state from one point to another in Mississippi is interstate transportation. The statute in question was interpreted by Mississippi as laying a tax solely upon that business of transporting oil, not upon the 'local activities of 'maintaining, eeping in repair and otherwise in manning the facilities" such as are discussed in the opinions in the undecisive case of Memphis Natural Gas Co. v. Stone, 335 U.S. 80 , at page 92-93, 1482. An opinion has been filed in this case, asserting that the Mississippi tax could be collected from the petitioner notwithstanding that its entire business is interstate of 'maintaining, keeping in repair and otherwise in manning the facilities" transportation business, the privilege tax exacted by Mississippi is actually a privilege tax for carrying on the interstate busi- </s> [337 U.S. 662 , 677] </s> ness of common carrier of oil, measured by a percentage of the gross income from that business, apportioned so as to include only income derived from that portion of the interstate commerce carried on wholly in Mississippi. The gross receipts from interstate commerce are the costs of carriage from point of origin-the field tanks-to the point of destination- the out-of-state refinery. As only that portion of the costs covering the carriage from origin to pipe-line loading racks, both points in Mississippi, is used to measure the privilege tax, it is clear that the interstate gross receipts are apportioned to carriage wholly within the state. Our issue at this point is whether a privilege tax for carrying on a wholly interstate transportation business measured by a fairly apportioned part of gross receipts for carriage in interstate commerce is constitutionally permissible. Phrased in terms of a privilege for carrying on an interstate business, such a tax historically has been deemed unconstitutional. The cases abound in statements to the effect that the privilege of carrying on interstate commerce itself is immune from state taxation. This is because it is a privilege beyond the power of a state to grant. '* * * it is a right which every citizen of the United States (and every corporation) is entitled to exercise under the constitution and laws of the United States ; * * *'. Crutcher v. Kentucky, 141 U.S. 47, 57 , 853; International Textbook Co. v. Pigg, 217 U.S. 91, 27 L.R.A.,N.S., 493, 18 Ann.Cas. 1103. The cases hold not only that a state may not exact a tax as a condition precedent to the doing of interstate business, but also that it may not levy privilege, excise or franchise taxes on a foreign corporation for the privilege of carrying on or the actual doing of solely interstate business after its admission to the state. 14 Ozark Pipe Line Corp. v. </s> [337 U.S. 662 , 678] </s> Monier, 266 U.S. 555 ; Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 44 A.L.R. 1219; Cf. Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218 , in the light of Southern Natural Gas Corp. v. Alabama, 301 U.S. 148, 153 , 698.15 The decisions in these cases were reached in spite of the fact that in each of them the tax sought to be levied was fairly measured according to the connections of the corporate taxpayer with the state. Thus in Ozark the tax was measured by a percentage of the capital stock and surplus of the corporation employed in business in the state, that proportion being deemed employed within the state 'that its property and assets in this state bears to all its property and assets wherever located' ( 266 U.S. 555 ); in Alpha by a percentage of the value of the 'corporate excess' employed within the commonwealth (determined as in Ozark) and a percentage of 'that part of its net income * * * which is derived from business carried on within the commonwealth' ( 268 U.S. 203 ) (also determined as in Ozark); in Anglo-Chilean by a percentage of capital employed in the state. A recent pronouncement of this Court has recognized this limitation on state power. In Aero Mayflower Transit Co. v. Com'rs, 332 U.S. 495 , we upheld a tax on motor carriers only after stressing the fact that the tax was 'affirmatively laid for the privilege of using the state's highways' and was not imposed upon 'the privilege of doing the interstate business.' 332 U.S. at p. 504, 68 S.Ct. at page 172. See Memphis Natural Gas Co. </s> [337 U.S. 662 , 679] </s> v. Stone, 335 U.S. 80 , 88, note 10, 1479. Where the corporate taxpayer conducts intrastate as well as interstate business, a franchise privilege or excise tax on the former is of course permissible. 16 We have frequently upheld such a tax although it was measured by property or receipts which were used in or attributable to interstate business. 17 </s> The growth of commerce that is carried on in more than one state has brought responsibilities to states other than the one in which the commerce may be said to have originated. Producers either directly or through middlemen and independent dealers distribute natural resources, agricultural and manufactured products on a nation-wide scale. Transportation runs across state lines. All states are called upon to give governmental services for this commerce-service that costs and should be paid for by those who profit from its maintenance. In the absence of congressional direction as to the taxation of interstate commerce, this Court has interpreted the commerce clause to permit state nondiscriminatory taxation for the use of state facilities, upon the property used in interstate commerce, upon production for commerce and upon net proceeds therefrom. Through such taxes, the states may exact payment for their protection and encouragement of commerce. Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 429 , 819, and cases cited. We have upheld a tax on gross receipts from interstate transportation </s> [337 U.S. 662 , 680] </s> when 'apportioned as to the mileage within the State.' Central Greyhound Lines v. Mealey, 334 U.S. 653, 663 , 1266.18 Notwithstanding the wide latitude for taxation of incidents connected with interstate commerce, see Memphis Natural Gas Co. v. Stone, 335 U.S. 80 , this Court has never interpreted the commerce clause to allow a state tax for the privilege of carrying on interstate commerce or one upon that commerce itself. Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422 . This is not because of the financial burden. Other taxes may equally burden the commerce. It is not because in transportation the same result cannot be obtained by levying a tax for intrastate activities measured by gross receipts appropriately apportioned to the activities in the state. It is because the commerce clause of the Constitution does not leave to the states any power to permit or refuse the carrying on of interstate commerce. It likewise bars a state from taxing the privilege of doing interstate commerce or the doing of interstate commerce, with or without fair apportionment even if not discriminatory. Maine v. Grand Trunk R. Co., commented upon in note 18, is inapposite to the taxation here attempted by Mississippi. Interstate did a wholly interstate business. Grand Trunk, concerning a tax on the privilege of exercis- </s> [337 U.S. 662 , 681] </s> ing a franchise in Maine, can only be reconciled with the later cases commented upon at note 15 if Grand Trunk did an intrastate as well as an interstate business. A state franchise tax for this is permissible. See notes 16 and 17, supra. The method of apportionment employed in the Grand Trunk case has had approval as recently as the Greyhound case, 334 U.S. at page 663, 1266. There was no approval of Grand Trunk in Greyhound as a precedent for a tax on the privilege of doing an interstate business. See 334 U.S. at p. 658, 68 S.Ct. at page 1263. Control of interstate commerce passed into the hands of Congress and thus welded the Federation into a Nation So long as states are forbidden to impose taxes upon interstate commerce or for the privilege of carrying it on, a toll cannot be exacted from interstate commerce even if a similar tax is borne by local commerce. So, interstate commerce is not susceptible to taxation, as such, and thus has been protected against exactions aimed at it, no matter how nondiscriminatory. It may be taxed only under enactments which likewise tax intrastate commerce for like intrastate activities. It gets no advantage over intrastate commerce from anything furnished by the state and pays the state nothing for what the state doesn't possess, that is, the power to allow interstate business within its borders. All interstate commerce thus has free access to local markets subject only to nondiscriminatory taxes such as the tax on apportioned gross receipts from intrastate mileage as in Central Greyhound Lines v. Mealey, supra, or the tax on disconnected local incidents as discussed in the opinions in Memphis Natural Gas Co. v. Stone, supra, or in International Harvester Co. v. Evatt, supra, or American Manufacturing Co. v. City of St. Louis, 250 U.S. 459 . So long as a tax on the privilege of doing interstate business or a tax on the doing of that business is prohibited, interstate commerce remains free from state exactions levied </s> [337 U.S. 662 , 682] </s> on that commerce. Yet that commerce must bear like intrastate commerce the cost of those facilities or protections apart from the interstate commerce itself which the state furnishes or allows within its borders. Such as been and is the freedom that the commerce clause grants to those engaged in commerce between the states. The judgment should be reversed. Footnotes </s> [Footnote 1 Appellant also gathers oil which is transported through the Mississippi pipe lines directly into interstate trunk lines, through which the oil is carried outside the state. Mississippi has not attempted to tax the receipts attributable to shipments of this kind. </s> [Footnote 2 All appellant's transportation of oil in Mississippi is covered by tariffs which are published and filed with the Interstate Commerce Commission as required by the Interstate Commerce Act as amended, 49 U.S.C . 1(1), 1(3), and 6, 49 U.S.C.A. 1(1, 3), 6. </s> [Footnote 3 Other provisions of the Mississippi Code not here involved impose franchise, net income and ad valorem property taxes, all of which appellant paid for the years involved. This fact does not of course preclude Mississippi from exacting a different tax for the protection upon which one or more of these taxes is based. E.g., Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 85 , 1477. </s> [Footnote 4 State of Minnesota ex rel. Pearson v. Probate Court. 309 U.S. 270, 273 , 525, 126 A.L.R. 530; Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 , 245. [Footnote 5 International Harvester Co. v. Dept. of Treasury, 322 U.S. 340 , 346, 347, 1022; Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 363 , 588, 132 A.L.R. 475. [Footnote 6 See concurring opinion in Freeman v. Hewit, 329 U.S. 249, 259 , 67 S. Ct. 274, 280. </s> [Footnote 7 Nothing in the Grand Trunk opinion suggests the explanation hazarded by Mr. Justice Holmes in Galveston, H. & S.A.R. Co. v. Texas, 210 U.S. 217, 226 , 639, that the tax in the Grand Trunk case was sustained on the ground that it was imposed in lieu of ad valorem taxes. A copy of the statute reprinted in the margin of the Reports discloses that the tax was 'in lieu of all taxes upon such railroad, its property and stock,' except that cities and towns were permitted to tax not only all buildings owned by the railroad but also railroad-owned 'lands and fixtures' outside the right of way. 142 U.S. 217 Ä 218, n. 1. [Footnote 8 See the cases discussed in Western Live Stock v. Bureau of Revenue, 303 U.S. 250 , 255Ä257, 548, 549, 115 A.L.R. 944; Concurring opinion in Freeman v. Hewit, 329 U.S. 249 , 264Ä266, 67 S. Ct. 274, 282, 283. As the cited discussions point out, most of the cases invalidating 'direct' taxes on interstate commerce are explicable on the ground that the taxes were not fairly apportioned. But cf. the following cases, which involve apportioned franchise or privilege taxes measured by a standard other than gross receipts: Ozark Pipe Line Corp. v. Monier, 266 U.S. 555 ; Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 44 A.L.R. 1219; cf. Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218 . </s> [Footnote 9 Nippert v. City of Richmond, 327 U.S. 416 , 423Ä424, 589, 590, 162 A.L.R. 844; Wisconsin v. J. C. Penney Co., 311 U.S. 435 , 444Ä445, 249, 250, 130 A.L.R. 1229, separate opinion in International Harvester Co. v. Dept. of Treasury, 322 U.S. 340 , 352Ä353, 1032, concurring opinion in Freeman v. Hewit. 329 U.S. 249, 271 , 286; concurring opinion in Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 96 , 1483. [Footnote 10 Best & Co. v. Maxwell, 311 U.S. 454 ; Hale v. Bimco Trading Co., 306 U.S. 375 ; Guy v. City of Baltimore, 100 U.S. 434 . [Footnote 11 Cf. Gwin, White & Prince v. Henneford, 305 U.S. 434 , 439Ä440, 59 S. Ct. 325, 327, 328; Adams Mfg. Co. v. Storen, 304 U.S. 307 , 311Ä312, 915, 916, 117 A.L.R. 429; Western Live Stock v. Bureau of Revenue, 303 U.S. 250 , 255Ä257, 548, 549, 115 A.L.R. 944. </s> [Footnote 1 'Hence, the statute was designed only for the purpose of taxing the privilege of operating a pipe line for transporting the oil from one point to another in the State where it is then delivered to an interstate carrier prior to the beginning of its ultimate passage to a foreign state in interstate commerce. Most assuredly, no pipe line company would be deemed justified in installing an oil gathering system to transport oil other than that destined for ultimate interstate shipment, there being no oil refineries here.' 35 So.2d at page 77. </s> [Footnote 2 Southern Natural Gas Corp. v. Alabama, 301 U.S. 148, 153 , 698; cf. Aero Transit Co. v. Railroad Comm'rs, 332 U.S. 495, 499 , 169. Such determination may be rejected only if a palpable evasion for avoiding a contrary ruling under federal law. Union Pac. R. Co. v. Public Service Comm'n, 248 U.S. 67, 39 S. Ct. 24; Appleby v. City of New York, 271 U.S. 364, 379 , 46 S. Ct. 569, 573; Milk Wagon Drivers Union v. Meadowmoor Co., 312 U.S. 287, 294 , 555, 132 A.L.R. 1200. [Footnote 3 Southern Natural Gas Corp. v. Alabama, supra, 301 U.S. at page 154, 57 S.Ct. at page 698; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 658 , 873. See Caldarola v. Eckert, 332 U.S. 155, 158 , 1570; Standard Oil Co. of California v. Johnson, 316 U.S. 481, 483 , 1169. [Footnote 4 There is no problem as to any differentiation between 'in' commerce or 'affecting' commerce. Mississippi has decided that the statute applies only to transportation 'in' intrastate commerce. 35 So.2d 73. Cf. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 , 848, 97 A.L.R. 947; McLeod v. Threlkeld, 319 U.S. 491 , 63 S. Ct. 1248. </s> [Footnote 5 'So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan and destined to places within that State, she was engaged in commerce between the States, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State, and some acting through two or more States, does in no respect affect the character of the transaction.' 10 Wall. at page 565. [Footnote 6 'What we have already said, however, in relation to the products of a state intended for exportation to another state will indicate the view which seems to us the sound one on that subject, namely, that such goods do not cease to be part of the general mass of property in the state, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation, to another state, or have been started upon such transportation in a continuous route or journey. * * * But this movement does not begin until the articles have been shipped or started for transportation from the one state to the other. The carrying of them in carts or other vehicles, or even floating them, to the depot where the journey is to commence, is no part of that journey. That is all preliminary work, performed for the purpose of putting the property in a state of preparation and readiness for transportation. Until actually launched on its way to another state, or committed to a common carrier for transportation to such state, its destination is not fixed and certain. It may be sold or otherwise disposed of within the state, and never put in course of transportation out of the state. Carrying it from the farm, or the forest to the depot is only an interior movement of the property, entirely within the state, for the purpose, it is true, but only for the purpose, of putting it into a course of exportation. It is no part of the exportation itself. Until shipped or started on its final journey out of the state its exportation is a matter altogether in fieri, and not at all a fixed and certain thing.' 116 U.S. at pages 527, 528, 6 S.Ct. at pages 478, 479. </s> [Footnote 7 'The interstate commerce clause of the Constitution does not give immunity to movable property from local taxation which is not discriminative unless it is in actual continuous transit in interstate commerce. When it is shipped by a common carrier from one state to another, in the course of such an uninterrupted journey it is clearly immune. The doubt arises when there are interruptions in the journey, and when the property in its transportation is under the complete control of the owner during the passage. It the interruptions are only to promote the safe or convendient transit, then the continuity of the interstate trip is not broken. * * * In other words, in such cases interstate continuity of transit is to be determined by a consideration of the various factors of the situation. Chief among these are the intention of the owner, the control he retains to change destination, the agency by which the transit is effected, the actual continuity of the transportation, and the occasion or purpose of the interruption during which the tax is sought to be levied.' 260 U.S. at pages 376, 377, 43 S.Ct. at pages 148, 149, 25 A.L.R. 1195. [Footnote 8 State Tax Comm'n of Mississippi v. Interstate Natural Gas Co., 284 U.S. 41, 43 (reduction of pressure and metering gas). </s> [Footnote 9 'As previously pointed out, twice a day more than 15,000 government employees traveled between the Virginia agencies and their homes via one of the four bus systems. Most of them either went to or from these bus terminals from or the their homes over any of Transit's then available buses or streetcars. Their travel was at certain hours each day, at which special rush hour buses and cars were made available for their carriage. Their interstate journey to work actually began at the time they boarded a Transit bus or streetcar near their home, and actually ended when they alighted from the Virginia going bus at their place of work. On returning from work their interstate journey actually began when they boarded a bus near their work and actually ended when they alighted from a Transit streetcar or bus near their home. True, their interstate trip was broken at the District termini of the Virginia buses, when they stepped from one vehicle to another. But in the commonly accepted sense of the transportation concept, their entire trip was interstate. * * * And the fact that except as to Transit, they paid a combination of two rates, one for travel wholly within the District, and the other for travel between the District and Virginia, and the journey from their residences to Virginia and back again was taken in two segments, does not mean that the total interstate trip was not on a 'through route." 325 U.S. at page 363, 65 S.Ct. at page 1179. [Footnote 10 Interstate Commerce Comm'n v. Detroit, Grand Haven & Milwaukee R. Co., 167 U.S. 633 ; Pennsylvania R. Co. v. Knight, 192 U.S. 21 ; United States v. Yellow Cab Co., 332 U.S. 218 . </s> [Footnote 11 United States v. Yellow Cab Co., supra, 332 U.S. at pages 232Ä233, 67 S.Ct. at pages 1567, 1568; Interstate Commerce Comm'n v. Parker, 326 U.S. 60, 71 , 1495, note 6. [Footnote 12 Philadelphia & Reading R. Co. v. Hancock, 253 U.S. 284, 285 , 40 S. Ct. 512, 513: 'The duties of the deceased never took him out of Pennsylvania; they related solely to transporting coal from the mines. When injured he belonged to a crew operating a train of loaded cars from Locust Gap Colliery to Locust Summit Yard, two miles away. The ultimate destination of some of these cars was outside of Pennsylvania. This appeared from instruction cards or memoranda delivered to the conductor by the shipping clerk at the mine. Each of these referred to a particular car by number and contained certain code letters indicating that such car with its load would move beyond the state.' </s> [Footnote 13 Dahnke-Walker Co. v. Bondurant, 257 U.S. 282 ; Lemke v. Farmers Grain Co., 258 U.S. 50 ; Walling v. Jacksonville Paper Co., 317 U.S. 564, 567 , 335. </s> [Footnote 14 Since we perceive no difference for the purposes of this case between franchise, privilege, and excise taxes, insofar as they are exacted for the privilege of doing or the doing of interstate business, we have treated the as identical as far as their validity under the commerce clause is concerned. In Ozark and Anglo-Chilean Nitrate the taxes were called franchise taxes; in Alpha it was labeled an excise tax. </s> [Footnote 15 See the discussion of these cases in the opinion of Reed, J., in Memphis Natural Gas Co. v. Stone, 335 U.S. 80 . See also People of State of New York ex rel. Pennsylvania R. Co. v. Knight, 192 U.S. 21, 26 , 203; State Tax Com'n v. Interstate Natural Gas Co., 284 U.S. 41, 43 . </s> [Footnote 16 Memphis Natural Gas Co. v. Beeler, 315 U.S. 649 ; Ford Motor Co. v. Beauchamp, 308 U.S. 331 ; Atlantic Refining Co. v. Virginia, 302 U.S. 22 ; Southern Natural Gas Corp. v. Alabama, 301 U.S. 148 ; Pacific Tel. & Telegraph Co. v. Tax Comm'n, 297 U.S. 403, 105 A.L.R. 1; see collection of cases 105 A.L.R. 11, 36Ä56. [Footnote 17 International Harvester Co. v. Evatt, 329 U.S. 416 ; Atlantic Lumber Co. v. Com'r of Corp. and Tax'n, 298 U.S. 533 ; Matson Nav. Co. v. State Bd. of Equalization, 297 U.S. 441 . </s> [Footnote 18 This decision followed a prolonged controversy over the taxability of the proceeds of interstate commerce. Maine v. Grand Trunk R. Co., 142 U.S. 217, 163 , has been cited for the same proposition, see e.g., Adams Mfg. Co. v. Storen, 304 U.S. 307, 329 , 58 S. Ct. 913, 924, 117 A.L.R. 429, although there is in the report of the case, 142 U.S. at page 218, 12 S.Ct. at page 121, 2 of the Act there in question, support for Mr. Justice Holmes' treatment of it in Galveston, H. & S.A.R. Co. v. Texas, 210 U.S. 217, 226 , 639, as a tax in lieu of ad valorem taxes. See Joseph v. Carter & Weekes, 330 U.S. 422 , at page 427, notes 5, 6 and 7, 818, and cases cited. Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 255 , 548, 115 A.L.R. 944. Powell, More Ado about Gross Receipts Taxes, 60 Harv.L.Rev. 501, 710, 747, et seq.; Dunham, Gross Receipts Taxes on Interstate Transactions, 47 Col.L.Rev. 211, 220 et seq.

United States Supreme Court LOGUE v. UNITED STATES(1973) No. 72-656 Argued: April 24, 1973Decided: June 11, 1973 </s> Petitioners, claiming that their son's suicide while he was confined as a federal prisoner in a county jail was proximately caused by the negligence of Government agents and employees, brought suit under the Federal Tort Claims Act, which establishes Government liability for negligent acts or omissions of an "employee of the Government," defined, inter alia, as a person officially "acting on behalf of a federal agency . . . with or without compensation." The Act excludes any contractor with the United States from the definition of federal agency. Though finding that the county had contracted with the Federal Government to house federal prisoners in its jail, the District Court held that the Government was liable on the grounds that the sheriff's employees negligently failed to maintain adequate surveillance of the decedent (who had attempted suicide while initially incarcerated) and that the Deputy United States Marshal negligently failed specifically to arrange for constant surveillance. The Court of Appeals reversed on the grounds that under the "contractor" exclusion the United States was not accountable for the negligence of the sheriff's employees and those employees were not acting on behalf of a federal agency in an official capacity within the meaning of the Act. Held: </s> 1. The Court of Appeals correctly concluded that, contrary to petitioners' contention, the deputy marshal had no authority to control the activities of the sheriff's employees and that the jail was a "contractor," not a "Federal agency," within the meaning of the Act; and the statutory authorization for the housing of federal prisoners in state facilities clearly contemplated that the day-to-day operation of the contractor's facilities was to be in the contractor's, not the Government's, hands. Pp. 526-530. </s> 2. Petitioners' alternative contention that even though the sheriff's employees might not be "employees" of a federal agency, they might nonetheless be "acting on behalf of a Federal agency in an official capacity" and thus "employee[s] of the Government" within the meaning of the Act is not consistent with the legislative purpose of the Act. Pp. 530-532. [412 U.S. 521, 522] </s> 3. The Court of Appeals, not having given consideration to the question of the deputy marshal's negligence apart from other issues, should address itself to that question on remand. Pp. 532-533. </s> 459 F.2d 408 and 463 F.2d 1340, vacated and remanded. </s> REHNQUIST, J., delivered the opinion for a unanimous Court. STEWART and MARSHALL, JJ., filed a separate statement. </s> James DeAnda argued the cause for petitioners. With him on the brief were J. Robert McKissick, Ed Idar, Jr., Mario Obledo, and Michael Mendelson. </s> Mark L. Evans argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wood, and Robert E. Kopp. </s> MR. JUSTICE REHNQUIST delivered the opinion of the Court. </s> Reagan Logue, a federal prisoner confined in a county jail pending trial, fashioned a noose from a bandage covering a laceration on his left arm and hanged himself. His mother and adoptive father sued the United States for damages under the Federal Tort Claims Act, 28 U.S.C. 1346 (b), 1 claiming that negligence on the part of Government agents and employees proximately caused the death of their son. The District Court determined that Logue's death was the result of negligence for which the United States was liable, and awarded damages. 334 F. Supp. 322 (SD Tex. 1971). [412 U.S. 521, 523] The Court of Appeals reversed this judgment, 459 F.2d 408 (1972), rehearing en banc denied, 463 F.2d 1340 (1972). We granted certiorari in order to consider the application to this case of the Act's exclusion of employees of a "contractor with the United States." 28 U.S.C. 2671. </s> On May 22, 1968, Reagan Logue was arrested by Deputy United States Marshal Del Bowers on a bench warrant charging Logue with conspiracy to smuggle 229 pounds of marihuana into the United States. After a hearing, he was taken to the Nueces County jail in Corpus Christi, Texas, to await trial. This jail is one of some 800 institutions operated by state and local governments that contract with the Federal Bureau of Prisons to provide for the safekeeping, care, and subsistence of federal prisoners. 2 </s> [412 U.S. 521, 524] </s> On the day after his initial incarceration Logue attempted to commit suicide by slashing veins in his left arm. He was immediately taken to a hospital emergency room for treatment of the laceration. While the wound turned out to be relatively minor, Logue was admitted to the hospital's psychiatric floor because of the attending doctor's observation that he was actively hallucinating and out of touch with reality. The psychiatrist who later took charge of the case, recognizing Logue's suicidal tendencies, recommended to federal officials that he be committed to a medical facility for rehabilitation. 3 </s> On the following day, May 24, the District Court ordered that Logue be transferred to a federal medical facility pursuant to 18 U.S.C. 4244. While awaiting the processing of papers and other steps preparatory to the actual transfer, however, federal officials made arrangements to transfer Logue back to the Nueces County jail. 4 Before the transfer, Bowers informed the chief jailer of Logue's suicidal tendencies and requested that he prepare for Logue a special cell removed of all dangerous objects that might be used in another suicide attempt. Such a cell was prepared by the jail authorities, and Logue was placed in it. Bowers made no specific arrangements for constant surveillance of Logue once he [412 U.S. 521, 525] was confined, and the jail employees made only periodic checks when they were on that floor for some other reason. The day after his return to the jail, Logue removed the Kerlix bandage that had been applied to the laceration on his left arm and hanged himself. </s> The District Court found that there had been a contract between the Government and Nueces County whereby the latter undertook to house federal prisoners in the county jail at Corpus Christi. That court nonetheless found that the United States was liable for the negligence of the employees of the Nueces County sheriff as well as for the negligence of its own employee. The court found the former to have been negligent because their surveillance of Logue was "inadequate," and it found Bowers to have been negligent in failing to make "specific arrangements . . . for constant surveillance of the prisoner." </s> The Court of Appeals reversed the judgment of the District Court, stating in its opinion that: </s> "We interpret [18 U.S.C. 4002] as fixing the status of the Nueces County jail as that of a `contractor.' Title 28 U.S.C., Sec. 2671 . . . . This insulates the United States from liability under the FTCA for the negligent acts or omissions of the jail's employees. We find no support in the record for holding that Deputy Marshal Bowers had any power or authority to control any of the internal functions of the Nueces County jail. The deputy marshal, accordingly, violated no duty of safekeeping with respect to the deceased." 459 F.2d, at 411. </s> The Federal Tort Claims Act makes the United States liable for money damages "caused by the negligent or wrongful act or omission of any employee of the Government [412 U.S. 521, 526] . . . ." 28 U.S.C. 1346 (b). Section 2671 of Title 28 U.S.C. contains the following definitions: </s> "As used in this chapter and sections 1346 (b) and 2401 (b) of this title, the term `Federal agency' includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. </s> "`Employee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." </s> For the Government to be liable for the negligence of an employee of the Nueces County jail, he must be shown to be an "employee of the Government" as that term is used in the Federal Tort Claims Act. Though petitioners do not always distinguish between their two theories, they appear to contend alternatively that the Nueces County jail is a "Federal agency" by reason of its contract for the care of federal prisoners, or that the employees of the jail are "acting on behalf of" the Bureau of Prisons or the Government in performing services for federal prisoners. The Court of Appeals rejected these contentions, and we believe that it was right in doing so. </s> We read that portion of the Court of Appeals' opinion quoted supra as treating the "contractor" exemption from the definition of "Federal agency" in 2671 as adopting the common-law distinction between the liability of an employer for the negligent acts of his own employees [412 U.S. 521, 527] and his liability for the employees of a party with whom he contracts for a specified performance. Both the modern common law as reflected in the Restatement of Agency 5 and the law of Texas 6 make the distinction between the servant or agent relationship and that of independent contractor turn on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract. </s> In Maryland v. United States, 381 U.S. 41 (1965), one of the factors relied upon by the Court in determining that both military and civilian National Guard personnel were employees of the States, rather than of the United States, for purposes of the Federal Tort Claims Act, was the "supervision exercised by the States over both military and civilian personnel," id., at 53. The courts of appeals that have had occasion to decide the question appear to have unvaryingly held that the "contractor with the United States" language of 2671 adopts the traditional distinction between employees of the principal and employees of an independent contractor with the principal, and to have also held that the critical factor in making this determination is the authority of [412 U.S. 521, 528] the principal to control the detailed physical performance of the contractor. See, e. g., Gowdy v. United States, 412 F.2d 525, 534 (CA6 1969); Eutsler v. United States, 376 F.2d 634 (CA10 1967); Yates v. United States, 365 F.2d 663 (CA4 1966); Kirk v. United States, 270 F.2d 110 (CA9 1959). </s> Petitioners cite the commentary to the Restatement (Second) of Torts 409 (1965), to the effect that the common-law distinction that shields the employer from liability for injuries caused to another by the negligent act of a contractor or his servant is subject to so many exceptions that it is the general rule "only in the sense that it is applied where no good reason is found for departing from it." Congress, of course, could have left the determination as to whose negligence the Government should be liable for under the Federal Tort Claims Act to the law of the State involved, as it did with other aspects of liability under the Act. But it chose not to do this, and instead incorporated into the definitions of the Act the exemption from liability for injury caused by employees of a contractor. While this congressional choice leaves the courts free to look to the law of torts and agency to define "contractor," it does not leave them free to abrogate the exemption that the Act provides. </s> Petitioners suggest that because 18 U.S.C. 4042 imposes a duty on the Bureau of Prisons to "provide for the safekeeping, care, and subsistence of all persons charged with . . . offenses against the United States . . ." the Nueces County employees who were discharging the Government's obligation by contract should be held to be employees of the Government for purposes of liability under the Act. 7 This Court held in United States v. Muniz, 374 U.S. 150 (1963), that a breach of the [412 U.S. 521, 529] duty imposed on the Government by 18 U.S.C. 4042 was actionable under the Act. But the same public law that imposed this duty on the Government also authorized the Government to contract with state and local authorities to provide safekeeping and care: </s> "For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons. </s> . . . . . </s> "The rates to be paid for the care and custody of said persons shall take into consideration the character of the quarters furnished, sanitary conditions, and quality of subsistence and may be such as will permit and encourage the proper authorities to provide reasonably decent, sanitary, and healthful quarters and subsistence for such persons." 18 U.S.C. 4002 (emphasis added). </s> Thus, Congress not only authorized the Government to make contracts such as the one here in question, but rather clearly contemplated that the day-to-day operations of the contractor's facilities were to be in the hands of the contractor, with the Government's role limited to the payment of sufficiently high rates to induce the contractor to do a good job. The contract entered into between the Government and Nueces County reflects a similar division of responsibility. The county undertakes to provide custody in accordance with the Bureau of Prisons' "rules and regulations governing the care and custody of persons committed" under the contract. [412 U.S. 521, 530] These rules in turn specify standards of treatment for federal prisoners, including methods of discipline, rules for communicating with attorneys, visitation privileges, mail, medical services, and employment. But the agreement gives the United States no authority to physically supervise the conduct of the jail's employees; it reserves to the United States only "the right to enter the institution . . . at reasonable hours for the purpose of inspecting the same and determining the conditions under which federal offenders are housed." </s> The Court of Appeals' conclusion that the deputy marshal had no authority to control the activities of the sheriff's employees is supported by both the enabling statute and the contract actually executed between the parties. We agree with its resultant holding that the sheriff's employees were employees of a "contractor with the United States," and not, therefore, employees of a "Federal agency." </s> The judges of the Court of Appeals who dissented from the denial of rehearing en banc pointed out that petitioners alternatively contended in that court, as they do here, that even though the sheriffs' employees might not be "employees" of a federal agency, they might nonetheless be "acting on behalf of a Federal agency in an official capacity . . . ." 463 F.2d, at 1342. If petitioners were successful in establishing this contention, of course, an employee of the Nueces County jail would be an "employee of the government" under 2671 even though he was not an "employee" of a federal agency. </s> The legislative history to which we are referred by the parties sheds virtually no light on the congressional purpose in enacting the "acting on behalf of" language of 2671. The long gestation period of the Act in the committees of Congress has been recounted in Dalehite v. United States, 346 U.S. 15, 24 -30 (1953), and this lengthy period may have something to do with the paucity [412 U.S. 521, 531] of helpful committee reports on this point. One of the more immediate antecedents of the bill that Congress enacted contained identical "acting on behalf of" language: "and persons acting on behalf of a Federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." H. R. 5373, 77th Cong., 2d Sess., 101 (1942), quoted in Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 1 (1942). One of the appendices to the hearings on these bills compares the provisions of H. R. 6463, containing the "acting on behalf of" language, with previous drafts, and states that "`Employee of the Government' in the present bill is defined to include uncompensated or temporary officers or employees of the United States." Hearings, supra, at 58. The committee's observation thus affords some support to the Government's contention that the language is designed to cover special situations such as the "dollar-a-year" man who is in the service of the Government without pay, or an employee of another employer who is placed under direct supervision of a federal agency pursuant to contract or other arrangement. </s> The dissenting judges in the Court of Appeals expressed the view that "when the Government decides that a particular individual should assume obligations and responsibilities virtually identical to those of a salaried Federal employee, there may very well be some persuasive basis for the suggestion that such an individual's breach of a specific statutory duty owed by the salaried employee to a specific class of persons should visit identical liability upon the United States." 463 F.2d, at 1342-1343. But we are not persuaded that employees of a contractor with the Government, whose physical performance is not subject to governmental supervision, are to be treated as "acting on behalf of" a federal agency [412 U.S. 521, 532] simply because they are performing tasks that would otherwise be performed by salaried employees of the Government. If this were to be the law, the exclusion of contractors from the definition of "Federal agency" in 2671 would be virtually meaningless, since it would be a rare situation indeed in which an independent contractor with the Government would be performing tasks that would not otherwise be performed by salaried Government employees. 8 </s> While we therefore agree with the conclusion of the Court of Appeals that the Government was not liable for the negligence of the employees of Nueces County, we disagree with its implicit determination that such a conclusion ends the case. For the District Court imposed liability on the Government, not only for the negligent acts of employees of the Nueces County sheriff, but also for negligent acts of Deputy Marshal Bowers, who was concededly an employee of the Government. The District Court found that Bowers, knowing of the prisoner's suicidal tendencies, should have made "specific arrangements . . . for constant surveillance of the prisoner," and that his failure to do so was negligence. The Court of Appeals in that portion of its opinion quoted supra, at 525, stated that "[t]he deputy marshal, accordingly, [412 U.S. 521, 533] violated no duty of safekeeping with respect to the deceased." 459 F.2d, at 411. But that conclusion appears to us to follow from the court's discussion of the nature of the intergovernmental relationship and the status of the sheriff's employees rather than being a separate rejection of the finding of the District Court that Bowers himself was negligent. Since the Court of Appeals thus did not consider the distinct question regarding the negligence of Bowers, we believe that the parties' arguments on that question should be addressed in the first instance to the Court of Appeals. </s> We therefore vacate the judgment of the Court of Appeals and remand the case for consideration of the liability of the Government insofar as that liability may be based on the negligence of Deputy Marshal Bowers. </s> It is so ordered. </s> Footnotes [Footnote 1 "Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United [412 U.S. 521, 523] States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. 1346 (b). </s> [Footnote 2 The Federal Bureau of Prisons has statutory authority to contract with state prisons for the housing of federal prisoners: "For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons. "Such Federal prisoners shall be employed only in the manufacture of articles for, the production of supplies for, the construction of public works for, and the maintenance and care of the institutions of, the State or political subdivision in which they are imprisoned. "The rates to be paid for the care and custody of said persons shall take into consideration the character of the quarters furnished, sanitary conditions, and quality of subsistence and may be such as will permit and encourage the proper authorities to provide [412 U.S. 521, 524] reasonably decent, sanitary, and healthful quarters and subsistence for such persons." 18 U.S.C. 4002. The contract with the Nueces County jail incorporates by reference the standard of care set forth in this statute. </s> [Footnote 3 There was testimony that Logue had twice before made suicide attempts. </s> [Footnote 4 There was testimony at trial that it normally takes about a week or two after a commitment order has been entered before a prisoner can be physically transferred to a mental institution. There was also testimony that this process can be expedited to obtain commitment as early as 24 hours after an order has been signed. </s> [Footnote 5 Restatement (Second) of Agency 2 (1958): "(1) A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. "(2) A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. "(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent." </s> [Footnote 6 E. g., Great Western Drilling Co. v. Simmons, 157 Tex. 268, 302 S. W. 2d 400 (1957). </s> [Footnote 7 This argument is also put in terms of a "non-delegable duty" owed by the Government to a prisoner under 18 U.S.C. 4042. </s> [Footnote 8 The two courts of appeals' cases relied upon by petitioners involved findings of control by the Government that are contrary to the determination of the Court of Appeals in this case. In Close v. United States, 130 U.S. App. D.C. 125, 397 F.2d 686 (1968), the court reversed a summary judgment in favor of the Government, observing that there was no reason to assume that the Attorney General was without power to supervise the District of Columbia's jailer. The court expressly noted that no contention was made that the District of Columbia jail was a "contract" jail. Id., at 126, 397 F.2d, at 687. In Witt v. United States, 462 F.2d 1261 (CA2 1972), the court held that the supervising employee "was certainly amenable to some degree of control by the Disciplinary Barracks," id., at 1264, and that he was therefore "acting on behalf of" the Government. </s> MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join the opinion of the Court upon the understanding that, upon remand, the Court of Appeals' consideration of Bowers' negligence will not be limited to his alleged failure to make "specific arrangements . . . for constant surveillance of the prisoner." </s> [412 U.S. 521, 534]

United States Supreme Court BROWNELL v. CHASE NATIONAL BANK(1956) No. 24 Argued: Decided: November 19, 1956 </s> In an action brought by a trustee in New York state courts for a construction of the indenture and for an accounting, the Alien Property Custodian, later succeeded by the Attorney General of the United States, intervened and, in effect, tendered his claim to the entire property, by virtue of a vesting order issued under 5 of the Trading with the Enemy Act, as amended. The state courts denied such relief, and no review was sought here. The Attorney General subsequently amended the vesting order and brought suit in the New York state courts, praying that the principal of the trust be transferred to him. The state courts denied the relief. Held: Principles of res judicata bar the present suit. Pp. 37-39. </s> 286 App. Div. 808, 143 N. Y. S. 2d 623, affirmed. </s> George B. Searls argued the cause for petitioner. With him on a brief were Solicitor General Rankin, Assistant Attorney General Townsend and James D. Hill. Simon E. Sobeloff, then Solicitor General, was also on a brief with Mr. Townsend, Mr. Hill and Mr. Searls. </s> Thomas A. Ryan argued the cause and filed a brief for the Chase National Bank of New York, Trustee, respondent. </s> Samuel Anatole Lourie argued the cause and filed a brief for Schaefer et al., respondents. </s> Arthur J. O'Leary argued the cause for Schwarzburger et al., respondents. With him on the brief was Kenneth J. Mullane. [352 U.S. 36, 37] </s> MR. JUSTICE DOUGLAS delivered the opinion of the Court. </s> The question in the case is whether petitioner, by virtue of a vesting order issued under 5 of the Trading with the Enemy Act, as amended, 40 Stat. 411, 50 U.S.C. App. 5, is entitled to the res of a trust established in 1928 by one Cobb and administered by respondent under an indenture. The trust was created for the benefit of the descendants of Bruno Reinicke who, by reason of his powers over the trust and his ownership of the right of reversion, was the real settlor. </s> In 1945, when this Nation was at war with Germany, the Alien Property Custodian issued an order vesting "all right, title, interest and claim of any kind or character whatsoever" of the beneficiaries of the trust, declaring that they were nationals of Germany. Subsequently the Custodian (for whom the Attorney General was later substituted) intervened in an action brought by the trustee in the New York courts for a construction of the indenture and for an accounting. Relief sought by that intervention was that the income of the trust be paid to the Attorney General and that the powers reserved to the settlor be held to have passed by virtue of the vesting order to the Attorney General. We are also advised by the report of the case in the Court of Appeals that the Attorney General also claimed that, if the vesting order had not transferred the settlor's powers to the Attorney General, "then the trust had failed and all of the trust property should pass to the Attorney General under the vesting order as being property of alien enemies." Chase National Bank v. McGrath, 301 N. Y. 602, 603-604, 93 N. E. 2d 495. </s> The New York Supreme Court denied the relief asked by the Attorney General, holding he was not entitled to the income of the trust, that he had not succeeded to the powers of the settlor, and that those powers were vested [352 U.S. 36, 38] in the trustee as long as the settlor was barred from asserting them. On appeal the Appellate Division affirmed. Chase National Bank v. McGrath, 276 App. Div. 831, 93 N. Y. S. 2d 724. The Court of Appeals in turn affirmed. Chase National Bank v. McGrath, 301 N. Y. 602, 93 N. E. 2d 495. No review of that order was sought here. </s> Some years passed, when, in 1953, the Attorney General amended the vesting order by undertaking to appropriate "all property in the possession, custody or control" of the trustee. * In a suit in the New York courts he asked, among other things, that the principal of the trust be transferred to him. The Supreme Court of New York denied the relief. The Appellate Division affirmed without opinion. Chase National Bank v. Reinicke, 286 App. Div. 808, 143 N. Y. S. 2d 623. The Court of Appeals denied leave to appeal. Chase National Bank v. Reinicke, 309 N. Y. 1030, 129 N. E. 2d 790. The case is here on certiorari. 350 U.S. 964 . </s> We do not reach the several questions presented under the Trading with the Enemy Act for we are of the view that the principles of res judicata require an affirmance. In the first litigation, the Attorney General sought to reach the equitable interests in the trust and the powers of the settlor. When the Attorney General now seeks the entire bundle of rights, he is claiming for the most part what was denied him in the first suit. That is not all. In the first suit he claimed that if he were denied the [352 U.S. 36, 39] powers which the settlor had over the trust, the trust must fail and all the trust property must be transferred to him. In other words, the Attorney General tendered in the first suit his claim to the entire property. Cf. Young v. Higbee Co., 324 U.S. 204, 208 -209. Under familiar principles of res judicata, the claim so tendered may not be relitigated. Cromwell v. County of sac, 94 U.S. 351, 352 ; Tait v. Western Maryland R. Co., 289 U.S. 620, 623 . If he was not content with the first ruling, his remedy was by certiorari to this Court. Angel v. Bullington, 330 U.S. 183, 189 . Having failed to seek and obtain that review, he is barred from relitigating the issues tendered in the first suit. </s> Affirmed. </s> MR. JUSTICE CLARK and MR. JUSTICE HARLAN took no part in the consideration or decision of the case. </s> [Footnote * The state of war between this country and Germany was declared ended by the Joint Resolution of October 19, 1951, 65 Stat. 451. That Resolution contained, however, a proviso that all property, which, prior to January 1, 1947, was subject to seizure under the Act, continued to be subject to the Act. The 1953 vesting order preceded by a few days the termination of the vesting program of German-owned properties announced by the President on April 17, 1953. </s> [352 U.S. 36, 40]

United States Supreme Court TERMINIELLO V. CITY OF CHICAGO(1949) No. 272 Argued: February 1, 1949Decided: May 16, 1949 </s> Rehearing Denied June 13, 1949. See 337 U.S. 934 . [ Terminiello v. City of Chicago 337 U.S. 1 (1949) ] </s> [337 U.S. 1 , 2] </s> Mr. Albert W. Dilling, of Chicago, Ill., for petitioner. Mr. L. Louis Karton, of Chicago, Ill., for respondent. </s> Mr. Justice DOUGLAS delivered the opinion of the Court. Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago1 and fined. The case grew out of an address he delivered in an auditorium in Chicago under the auspices of the </s> [337 U.S. 1 , 3] </s> Christian Veterans of America. The meeting commanded considerable public attention. The auditorium was filled to capacity with over eight hundred persons present. Others were turned away. Outside of the auditorium a crowd o about one thousand persons gathered to protest against the meeting. A cordon of policemen was assigned to the meeting to maintain order; but they were not able to prevent several disturbances. The crowd outside was angry and turbulent. Petitioner in his speech condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation's welfare. The trial court charged that 'breach of the peace' consists of any 'misbehavior which violates the public peace and decorum'; and that the 'misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.' Petitioner did not take exception to that instruction. But he maintained at all times that the ordinance as applied to his conduct violated his right of free speech under the Federal Constitution, U.S.Const. Amend. 1. The judgment of conviction was affirmed by the Illinois Appellate Court, 332 Ill.App. 17, 74 N.E.2d 45, and by the Illinois Supreme Court. 396 Ill. 41, 71 N.E.2d 2, 400 Ill. 23, 79 N.E.2d 39. The case is here on a petition for certiorari which we granted because of the importance of the question presented. The argument here has been focused on the issue of whether the content of petitioner's speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees. See Chaplinsky v. New Hampshire, 315 U.S. 568 ; Cantwell v. Connecticut, 310 U.S. 296, 310 , 906, 128 A.L.R. 1352. We do not reach that question, for there is a preliminary question that is dispositive of the case. </s> [337 U.S. 1 , 4] </s> As we have noted, the statutory words 'breach of the peace' were defined in instructions to the jury to include speech which 'stirs the public to anger, invites dispute, brings about a condition or unrest, or creates a disturbance. * * *' That construction of the ordinance is a ruling on a question of state law that is as binding on us as though the precise words had been written into the ordinance. See Hebert v. Louisiana, 272 U.S. 312, 317 , 104, 48 A.L.R. 1102; Winters v. New York, 333 U.S. 507, 514 , 669. The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365 , 260, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to roduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262 , 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373 , 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas </s> [337 U.S. 1 , 5] </s> either by legislatures, courts, or dominant political or community groups. The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand. The fact that petitioner took no exception to the instruction is immaterial. No exception to the instructions was taken in Stromberg v. California, 283 U.S. 359, 73 A.L.R. 1484. But a judgment of conviction based on a general verdict under a state statute was set aside in that case, because one part of the statute was unconstitutional. The statute had been challenged as unconstitutional and the instruction was framed in its language. The Court held that the attack on the statute as a whole was equally an attack on each of its individual parts. Since the verdict was a general one and did not specify the ground upon which it rested, it could not be sustained. For one part of the statute was unconstitutional and it could not be determined that the defendant was not convicted under that part. The principle of that case controls this one. As we have said, the gloss which Illinois placed on the ordinance gives it a meaning and application which are conclusive on us. We need not consider whether as construed it is defective in its entirety. As construed and applied it at least contains parts that are unconstitutional. The verdict was a general one; and we do not know on this record but what it may rest on the invalid clauses. The statute as construed in the charge to the jury was passed on by the Illinois courts and sustained by them over the objection that as so read it violated the Fourteenth Amendment. The fact that the parties did not dispute its construction makes the adjudication no less </s> [337 U.S. 1 , 6] </s> ripe for our review, as the Stromberg decision indicates. We can only take the statute as the state courts read it. From our point of view it is immaterial whether the state law question as to its meaning was controverted or accepted. The pinch of the statute is in its application. It is that question which the petitioner has brought here. To say therefore that the question on this phase of the case is whether the trial judge gave a wrong charge is wholly to misconceive the issue. But it is said that throughout the appellate proceedings the Illinois courts assumed that the only conduct punishable and punished under the ordinance was conduct constituting 'fighting words.' That emphasizes, however, the importance of the rule of the Stromberg case. Petitioner was not convicted under a statute so narrowly construed. For all anyone knows he was convicted under the parts of the ordinance (as construed) which, for example, make it an offense merely to invite dispute or to bring about a condition of unrest. We cannot avoid that issue by saying that all Illinois did was to measure petitioner's conduct, not the ordinance, against the Constitution. Petitioner raised both points-that his speech was protected by the consTitution; that the inclusion of his speech within the ordinance was a violation of the Constitution. We would, therefore, strain at technicalities to conclude that the constitutionality of the ordinance as construed and applied to petitioner was not before the Illinois courts. The record makes clear that petitioner at all times challenged the constitutionality of the ordinance as construed and applied to him. Reversed. </s> Mr. Chief Justice VINSON, dissen ing. I dissent. The Court today reverses the Supreme Court of Illinois because it discovers in the record one sentence in the trial court's instructions which permitted </s> [337 U.S. 1 , 7] </s> the jury to convict on an unconstitutional basis. The offending sentence had heretofore gone completely undetected. It apparently was not even noticed, much less excepted to, by the petitioner's counsel at the trial. No objection was made to it in the two Illinois appellate tribunals which reviewed the case. Nor was it mentioned in the petition for certiorari or the briefs in this Court. In short, the offending sentence in the charge to the jury was no part of the case until this Court's independent research ferreted it out of a lengthy and somewhat confused record. I think it too plain for argument that a reversal on such a basis does not accord with any principle governing review of state court decisions heretofore announced by this Court. Certainly, Stromberg v. California, 1931, 283 U.S. 359, 73 A.L.R. 1484, as Mr. Justice FRANKFURTER demonstrates, offers no precedent for today's action. It will not do to say that, because the Illinois appellate courts affirmed the petitioner's conviction in the face of a constitutional attack, they necessarily must have approved the interpretation of the Chicago ordinance contained in the unnoticed instruction. The fact is that the Illinois courts construed the ordinance as punishing only the use of 'fighting words.' Their opinions plainly show that they affirmed because they thought that the petitioner's speech had been found by the jury to come within that category. 1 Their action was not, and cannot here be taken to be, an approval of the ordinance 'as construed' by the instruction because the record clearly shows that the case was treated on appeal, both by counsel and by the courts, as if no such instruction existed. This Court can reverse the conviction because of the instruction only if we are to say that every time a state </s> [337 U.S. 1 , 8] </s> court affirms a conviction it necessarily must approve of every unnoticed and unobjected to error which we may discover in the record. If such is the doctrine of this case, I feel compelled to register my emphatic dissent. The instruction informed the jury that they could return a verdict of guilty if they found that the petitioner's speech was one which 'stirs the public to anger, invites public dispute, brings about a condition of unrest, or creates a disturbance.' If the petitioner's counsel, who carefully made other constitutional objections throughout the proceedings below, had brought any issue here as to the constitutional validity of that instruction I would agree with the Court's decision. But the record gives me no basis on which to believe that the Illinois courts would not also have so decided if that issue had been presented to them. The Court, as I understand it, does not reach the issue which the parties argued here-whether a properly instructed jury could constitutionally have found from the conflicting evidence in the record that, under the circumstances, the words in the petitioner's speech were 'fighting words' to those inside the hall who heard them. Certainly, the Court does not decide whether the violent opposition of those outside the hall, who did not hear the speech, could constitutionally warrant the conviction of the petitioner in order to keep the streets from becoming ideological battlegrounds. Since neither of these constitutional issues is decided by the Court, I think that it is not within my province to indicate any opinion concerning them. See Rescue Army v. Municipal Court, 1947, 331 U.S. 549, 568 , 1419. </s> Mr. Justice FRANKFURTER, dissenting. For the first time in the course of the 130 years i which State prosecutions have come here for review, this Court is today reversing a sentence imposed by a State court </s> [337 U.S. 1 , 9] </s> on a ground that was urged neither here nor below and that was explicitly disclaimed on behalf of the petitioner at the bar of this Court. The impropriety of that part of the charge which is now made the basis of reversal was not raised at the trial nor before the Appellate Court of Illinois. The fact that counsel for Terminiello wholly ignored it is emphasized by the objections that he did make in relation to other instructions given and not given. On appeal to the Supreme Court of Illinois, counsel still failed to claim as error that which this Court on its own motion now finds violative of the Constitution. It was not mentioned by the Illinois Supreme Court in its careful opinion disposing of other claims and it was not included in the elaborate petition for rehearing in that court. Thus an objection, not raised by counsel in the Illinois courts, not made the basis of the petition for certiorari here- not included in the 'questions presented,' nor in the 'reasons relied on for the allowance of the writ'-and explicitly disavowed at the bar of this Court, is used to upset a conviction which has been sustained by three courts of Illinois. Reliance on Stromberg v. California, 283 U.S. 359, 73 A.L.R. 1484, for what is done today is wholly misplaced. Neither expressly nor by implication has that decision any bearing upon the issue which the Court's opinion in this case raises, namely, whether it is open for this Court to reverse the highest court of a State on a point which was not brought before that court, did not enter into the judgment rendered by that court, and at no stage of the proceedings in this Court was invoked as error by the State court whose reversal is here sought. The Stromberg case presented precisely the opposite situation. In that case the claim which here prevailed was a ground of unconstitutionality urged before the California court; upon its rejection by that court it was made the basis of appeal </s> [337 U.S. 1 , 10] </s> to this Court; it was here urged as the decisive ground for the reversal of the California judgment. The Stromberg case dealt with a statute which proscribed conduct in a threefold way. The information upon which a verdict of guilty was secured was couched in the threefold terms of the statute, and in that form submitted to the jury. A general verdict followed. It was urged throughout the proceedings, and finally at the bar of this Court, that one of the proscriptions of the statute was invalid under the Fourteenth Amendment. That view was sustained. All that the case holds is that where the validity of a statute is successfully assailed as to one of three clauses of a statute and all three clauses were submitted to the jury, the general verdict has an infirmity because it cannot be assumed that the jury convicted on the valid portions of the statute and not on the invalid. There was no question in that case of searching the record for an alleged error that at no time was urged against the State judgment brought here for review. In the Stromberg case an error that was properly urged was sustained. In this case a claim that was not urged but was disavowed is transmuted into a claim denied. Only the uninformed will deride as a merely technical point objection to what the Court is doing in this case. The matter touches the very basis of this Court's authority in reviewing the judgments of State courts. We have no authority to meddle with such a judgment unless some claim under the Constitution or the laws of the United States has been made before the State court whose judgment we are reviewing and unless the claim has been denied by that court. 1 How could there have been a </s> [337 U.S. 1 , 11] </s> denial of a federal claim by the Illinois courts, i.e., that the trial judge offended the Constitution of the United States in what he told the jury, when no such claim was made? The relation of the United States and the courts of the United States to the States and the courts of the States is a very delicate matter. It is too delicate to permit silence when a judgment of a State court is reversed in disregard of the duty of this Court to leave untouched an adjudication of a State unless that adjudication is based upon a claim of a federal right which the State has had an opportunity to meet and to recognize. If such a federal claim was neither before the State court nor presented to this Court, this Court unwarrantably strays from its province in looking through the record to find some federal claim that might have been brought to the attention of the State court and, if so, brought, fronted, and that might have been, but was not, urged here. This is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency. Freedom of speech undoubtedly means freedom to express views that challenge deep-seated, sacred beliefs and to utter sentiments that may provoke resentment. But those indulging in such stuff as that to which this proceeding gave rise are hardly so deserving as to lead this Court to single them out as beneficiaries of the first </s> [337 U.S. 1 , 12] </s> departure from the restrictions that bind this Court in reviewing judgments of State courts. Especially odd is it to bestow such favor not for the sake of life or liberty, but to save a small amount of property-$ 100, the amount of the fine imposed upon the petitioner in a proceeding which is civil, not criminal, under the laws of Illinois, and thus subject only to limited review. City of Chicago v. Terminiello, 400 Ill. 23, 29, 79 N.E.2d 39, 43. This Court has recognized that fines of this nature are not within provisions of the Constitution governing federal criminal prosecutions. See Hepner v. United States, 213 U.S. 103, 27 L.R.A.,N.S., 739, 16 Ann.Cas. 960. The importance of freedom of speech of course cannot be measured by dollars and cents. A great principle may be at stake, as in the Case of the Ship Money, though the issue arise over the payment of a few shillings' tax. Were the Court to sustain the claim urged throughout these proceedings, in Illinois and here, namely, that a law is unconstitutional when it forbids Terminiello's harangue in the circumstances of its utterance, it would be immaterial that only $100 is involved. But to inject an error into the record in order to avoid the issue on which the case was brought here-for certainly relief from the payment of a fine of $ 100 could not alone have induced this Court to excogitate a defect in the judgment which counsel thoughtfully rejected and which three State courts did not consider-hardly raises the objection to the dignity of such a principle. If the Court refrained from taking phrases out of their environment and finding in them a self-generated objection, it could not be deemed to have approved of them even abstract propositions. On the merits of the issue reached by the Court I share Mr. Justice JACKSON'S views. For I assume that the Court does not mean to reject, except merely for purposes of this case, the basic principle that guides scrutiny of </s> [337 U.S. 1 , 13] </s> a charge on appeal. I assume, that is, that a charge is not to be deemed a bit of abstraction in a non-existing world; the function which a charge serves is to give practical guidance to a jury in passing on the case that was unfolded before it-the particular circumstances in their particular setting. Mr. Justice JACKSON and Mr. Justice BURTON join this dissent. </s> Mr. Justice JACKSON, dissenting. The Court reverses this conviction by reiterating generalized approbations of freedom of speech with which, in the abstract, no one will disagree. Doubts as to their applicability are lulled by avoidance of more than passing reference to the circumstances of Terminiello's speech and judging it as if he had spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore. But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two. When the trial judge instructed the jury that it might find Terminiello guilty of inducing a breach of the peace if his behavior stirred the public to anger, invited dispute, brought about unrest, created a disturbance or molested peace and quiet by arousing alarm, he was not speaking of these as harmless or abstract conditions. He was addressing his words to the concrete behavior and specific consequences disclosed by the evidence. He was saying to the jury, in effect, that if this particular speech added fuel to the situation already so inflamed as to threaten to get beyond police control, it could be punished as inducing a breach of peace. When the light of the evidence not recited by the Court is thrown upon the Court's opinion, it discloses that underneath a little issue of </s> [337 U.S. 1 , 14] </s> Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society's need for public order. An old proverb warns us to take heed lest we 'walk into a well from looking at the stars.' To show why I think the Court is in some danger of doing just that, I must bring these deliberations down to earth by a long recital of facts. Terminiello, advertised as a Catholic Priest, but revealed at the trial to be under suspension by his Bishop, was brought to Chicago from Birmingham, Alabama, to address a gathering that assembled in response to a call signed by Gerald L. K. Smith, which, among other things, said: '* * * The same people who hate Father Coughlin hate Father Terminiello. They have persecuted him, hounded him, threatened him, but he has remained unaffected by their anti-Christian campaign against him. You will hear all sorts of reports concerning Father Terminiello. But remember that he is a Priest in good standing and a fearless lover of Christ and America.' </s> The jury may have considered that this call attempted to capitalize the hatreds this man had stirred and foreshadowed, if it did not intend to invite, the kind of demonstration that followed. Terminiello's own testimony shows the conditions under which he spoke. So far as material it follows: '* * * We got there (the meeting place) approximately fifteen or twenty minutes past eight. The car stopped at the front entrance. There was a </s> [337 U.S. 1 , 15] </s> crowd of three or four hundred congregated there shouting and cursing and picketing. * * * </s> 'When we got there the pickets were not marching; th y were body to body and covered the sidewalk completely, some on the steps so that we had to form a flying wedge to get through. Police escorted us to the building, and I noticed four or five others there. </s> 'They called us 'God damned Fascists, Nazis, ought to hang the so and sos.' When I entered the building I heard the howls of the people outside . * * * There were four or five plain clothes officers standing at the entrance to the stage and three or four at the entrance to the back door. </s> 'The officers threatened that if they broke the door again they would arrest them and every time they opened the door a little to look out something was thrown at the officers, including ice-picks and rocks. </s> 'A number of times the door was broken, was partly broken through. There were doors open this way and they partly opened and the officers looked out two or three times and each time ice-picks, stones and bottles were thrown at the police at the door. I took my place on the stage, before this I was about ten or fifteen minutes in the body of the hall. </s> 'I saw a number of windows broken by stones or missiles. I saw the back door being forced open, pushed open. </s> 'The front door was broken partly open after the doors were closed. There were about seven people seated on the stage. Smith opened the meeting with prayer, the Pledge of Allegiance to the Flag and singing of America. There were other speakers who spoke before me and before I spoke I heard things happening in the hall and coming from the outside. </s> [337 U.S. 1 , 16] </s> 'I saw rocks being thrown through windows and that continued throughout at least the first half of the meeting, probably longer, and again attempts were made to force the front door, rather the front door was forced partly. The howling continued on the outside, cursing could be heard audibly in the hall at times. Police were rushing in and out of the front door protecting the front door, and there was a general commotion, all kinds of noises and violence-all from the outside. </s> 'Between the time the first speaker spoke and I spoke, stones and bricks were thrown in all the time. I started to speak about 35 or 40 minutes after the meeting started, a little later than nine o'clock. * * *' </s> The court below, in addition to this recital, heard other evidence, that the crowd reached an estimated number of 1,500. Picket lines obstructed and interfered with access to the building. The crowd constituted 'a surging, howling mob hurling epithets at those who would enter and tried to tear their clothes off.' One young woman's coat was torn off and she had to be assisted into the meeting by policemen. Those inside the hall could hear the loud noises and hear those on the outside yell, 'Fascists, Hitlers!' and curse words like 'damn Fascists.' Bricks were thrown through the windowpanes before and during the speaking. About 28 windows were broken. The street was black with people on both sides for at least a block either way; bottles, stink bombs and brickbats were thrown. Police were unable to control the mob, which kept breaking the windows at the meeting hall, drowning out the speaker's voice at times and breaking in through the back door of the auditorium. About 17 of the group outside were arrested by the police. Knowing of this environment, Terminiello made a long speech, from the stenographic record of which I omit </s> [337 U.S. 1 , 17] </s> relatively innocuous passages and add emphasis of what seems especially provocative: 'Father Terminiello: Now, I am going to whisper my greetings to you, Fellow Christians. I will interpret it. I said, 'Fellow Christians,' and I suppose there are some of the scum got in by mistake, so I want to tell a story about the scum: </s> '* * * And nothing I could say tonight could begin to express the contempt I have for the slimy scum that got in by mistake. </s> '* * * The subject I want to talk to you tonight about is the attempt that is going on right outside this hall tonight, the attempt that is going on to destroy America by revolution. * * * </s> ' y friends, it is no longer true that it can't happen here. It is happening here, and it only depends upon you, good people, who are here tonight, depends upon all of us together, as Mr. Smith said. The tide is changing, and if you and I turn and run from that tide, we will all be drowned in this tidal wave of Communism which is going over the world. </s> '* * * I am not going to talk to you about the menace of Communism, which is already accomplished, in Russia, where from eight to fifteen million people were murdered in cold blood by their own countrymen, and millions more through Eastern Europe at the close of the war are being murdered by these murderous Russians, hurt, being raped and sent into slavery. That is what they want for you, that howling mob outside. </s> 'I know I was told one time that my winter quarters were ready for me in Siberia. I was told that. Now, I am talking about the fifty-seven varieties that we have in America, and we have fifty-seven varieties of pinks and reds and pastel shades in this country; and all of it can be traced back to the </s> [337 U.S. 1 , 18] </s> twelve years we spent under the New Deal, because that was the build-up for what is going on in the world today. </s> 'Now, Russia promised us we would ga (sic) back to the official newspaper of Russia. Primarily it was back about 1929. They quoted the words of George E. Dimitroff, who at that time was the Executive Secretary of the Communist International. I only quote you this one passage. I could quote thousands of paragraphs for you. Let me quote you: 'You worldwide nature of our program is not mere talk, but an all embracing blood-soaked reality.' That is what they want for us, a blood-soaked reality but it was promised to us by the crystal gazers in Washington; and you know what I mean by the 'crystal gazers,' I presume. </s> 'First of all, we had Queen Eleanor. Mr. Smith said, 'Queen Eleanor is now one of the world's communists. She is one who said this-imagine, coming from the spouse of the former President of the United States for twelve long years-this is what she said: 'The war is but a step in the revolution. The war is but one step in the revolution, and we know who started the war.' </s> 'Then we have Henry Adolph Wallace, the sixty million job magician. You know we only need fifty-four million jobs in America and everybody would be working. He wants sixty million jobs, because some of the bureaucrats want two jobs apiece. Here he is, what he says about revolution: 'We are in for a profound revolution. Those of us who realize the inevitableness of the revolution, and are anxious that it be gradual and bloodless instead of somewhat bloody. Of course, if necessary, we will have it more bloody.' </s> [337 U.S. 1 , 19] </s> 'And then Chief Justice Stone had this to say: 'A way has been found for the effective suppression of speeches and press and religion, despite constitutional guarantee,'-from the Chief Justice, from the Chief Justice of the United States. </s> 'Now, my friends, they are planning another ruse; and if it ever happens to this cou-try (sic), God help America. They are going to try to put into Mr. Edgar Hoover's position a man by the name of George Swarzwald. I think even those who were uneducated on so-called sedition charges, that the majority of the individuals in this department, that Christ-like men and women who realize today what is going on in this country, men who are in this audience today, who want to know the names of those people, before they are outside, they want to know the names if any. Did you hear any tonight that you recognize? Most of them probably are imported. They are imported from Russia, certainly. If you know the names, please send them to me immediately. * * * </s> '* * * Didn't you ever read the Morgenthau plan for the starvation of little babies and pregnant women in Germany? Whatever could a child that is born have to do with Hitler or anyone else at the beginning of the war? Why should every child in Germany today not live to be more than two or three months of age? Because M rgenthau wants it that way, and so did F.D. R. * * * You will know who is behind it when I tell you the story of a doctor in Akron, Ohio. He boasted to a friend of mine within the last few days, while he was in the service of this country as a doctor, he and others of his kind made it a practice-now, this was not only one man-made it a practice to amputate the limbs of every German they came in contact with when- </s> [337 U.S. 1 , 20] </s> ever they could get away with it; so, that they could never carry a gun. Imagine men of that caliber, sworn to serve this beautiful country of ours, why should we tolerate them? </s> 'My friends, this moment someone reminded me of the plan to sterilize them. The nurses, they tell me are going to inject diseases in them, syphilis and other diseases in every one that came there all of one race, all non-Christians. </s> 'Now, we are going to get the threats of the people of Argentine, the people of Spain. We have now declared, according to our officials, to have declared Franco to have taken the place of Hitler. Franco was the savior of what was left of Europe. </s> 'Now, let me say, I am going to talk about-I almost said, about the Jews. Of course, I would not want to say that. However, I am going to talk about some Jews. I hope that-I am a Christian minister. We must take a Christian attitude. I don't want you to go from this hall with hatred in your heart for any person, for no person. * * * </s> 'Now, this danger which we face-let us call them Zionist Jews if you will, let's call them atheistic, communistic Jewish or Zionist Jews, then let us not fear to condemn them. You remember the Apostles when they went into the upper room after the death of the Master, they went in there, after locking the doors; they closed the windows. (At this time there was a very loud noise as if something was being thrown into the building.) </s> 'Don't be disturbed. That happened by the way, while Mr. Gerald Smith was saying 'Our Father who art in heaven;' (just then a rock went through the window.) Do you wonder they were persecuted in other countries in the world? </s> [337 U.S. 1 , 21] </s> 'You know I have always made a study of the psychology, sociology of mob reaction. It is exemplified out there. Remember there has to be a leader to that mob. He is not out there. He is probably across the street, looking out the window. There must be certain things, money, other things, in order to have successful mob action; there must be rhythm. There must be some to beat a cadence. Those mobs are chanting; that is the caveman's chant. They were trained to do it. They were trained this afternoon. They are being led; there will be violence. </s> 'That is why I say to you, men, don't you do it. Walk out of here dignified. The police will protect you. Put the women on the inside, where there will be no hurt to them. Just walk; don't stop and argue. * * * They want to picket our meetings. They don't want us to picket their meetings. It is the same kind of tolerance, if we said there was a bedbug in bed, 'We don't care for you,' or if we looked under the bed and found a snake and said, 'I am going to be tolerant and leave the snake there.' We will not be tolerant of that mob out there. We are not going to be tolerant any longer. </s> 'We are strong enough. We are not going to be tolerant of their smears any longer. We are going to stand up and dare them to smear us. </s> 'So, my friends, since we spent much time tonight trying to quiet the howling mob, I am going to bring my thoughts to a conclusion, and the conclusion is this. We must all be like the Apostles before the coming of the Holy Ghost. We must not lock ourselves in an upper room for fear of the Jews. I speak of the Communistic Zionistic Jew, and those are not American Jews. We don't want them here; we want them to go back where they came from. </s> [337 U.S. 1 , 22] </s> 'Mr. Smith: I would like to ask that Miss Purcell would please go back to the front of the building and contact the police officer in charge of the detail. We are going to adjourn this meeting i and when Miss Purcell comes back and reports to me that the one in charge of the detail believes it is safe for us to go out on the street. I am sure it is. Sit still. We are not going to have anybody move. If there are any chiselers that want to go, we are going to take up an offering for Father Terminiello. </s> 'There was further discussion to stimulate this offering which was not reported.)' </s> Such was the speech. Evidence showed that it stirred the audience not only to cheer and applaud but to expressions of immediate anger, unrest and alarm. One called the speaker a 'God damned liar' and was taken out by the police. Another said that 'Jews, niggers and Catholics would have to be gotten rid of.' One response was, 'Yes, the Jews are all killers, murderers. If we don't kill them first, they will kill us.' The anti- Jewish stories elicited exclamations of 'Oh!' and 'Isn't that terrible!' and shouts of 'Yes, send the Jews back to Russia,' 'Kill the Jews,' 'Dirty kikes,' and much more of ugly tenor. This is the specific and concrete kind of anger, unrest and alarm, coupled with that of the mob outside, that the trial court charged the jury might find to be a breach of peace induced by Terminiello. It is difficult to believe that this Court is speaking of the same occasion, but it is the only one involved in this litigation. Terminiello, of course, disclaims being a fascist. Doubtless many of the indoor audience were not consciously such. His speech, however, followed, with fidelity that is more than coincidental, the pattern of European fascist leaders. </s> [337 U.S. 1 , 23] </s> The street mob, on the other hand, included some who deny being communists, but Terminiello testified and offered to prove that the demonstration was communist-organized and communist-led. He offered literature of left-wing organizations calling members to meet and 'mobilize' for instruction as pickets and exhorting followers: 'All out to fight Fascist Smith.' As this case declares a nation-wide rule that disables local and state authorities from punishing conduct which produces conflicts of this kind, it is unrealistic not to take account of the nature, methods and objectives of the forces involved. This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe. Increasingly, American cities have to cope with it. One faction organizes a mass meeting, the other organizes pickets to harass it; each organizes squads to counteract the other's pickets; parade is met with counterparade. Each of these mass demonstrations has the potentiality, and more than a few the purpose, of disorder and violence. This technique appeals not to reason but to fears and mob spirit; each is a show of force designed to bully adversaries and to overawe the indifferent. We need not resort to speculation as to the purposes for which these tactics are calculated nor as to their consequences. Recent European history demonstrates both. Hitler summed up the strategy of the mass demonstration as used by both fascism and communism: 'We should not work in secret conventicles but in mighty mass demonstrations, and it is not by dagger and poison or pistol that the road can be cleared for the movement but by the conquest of the streets. We must teach the Marxists </s> [337 U.S. 1 , 24] </s> that the future master of the streets is National Socialism, just as it will some day be the master of the state.' (Emphasis supplied.) 1 Nazi Conspiracy & Aggression (GPO, 1946) 204, 2 id. 140, Docs. 2760-PS, 404-PS, from 'Mein Kampf.' First laughed at as an extravagant figure of speech, the battle for the streets became a tragic reality when an organized Sturmabterlung began to give practical effect to its slogan that 'possession of the streets is the key to power in he state.' Ibid., also Doc. 2168-PS. The present obstacle to mastery of the streets by either radical or reactionary mob movements is not the opposing minority. It is the authority of local governments which represent the free choice of democratic and law-abiding elements, of all shades of opinion but who, whatever their differences, submit them to free elections which register the results of their free discussion. The fascist and communist groups, on the contrary, resort to these terror tactics to confuse, bully and discredit those freely chosen governments. Violent and noisy shows of strength discourage participation of moderates in discussions so fraught with violence and real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent and begin to think the time has come when they must choose sides in a false and terrible dilemma such as was posed as being at hand by the call for the Terminiello meeting: 'Christian Nationalism or World Communism-Which?' This drive by totalitarian groups to undermine the prestige and effectiveness of local democratic governments is advanced whenever either of them can win from this Court a ruling which paralyzes the power of these officials. This is such a case. The group of which Terminiello is a part claims that his behavior, because it involved a speech, is above the reach of local authorities. </s> [337 U.S. 1 , 25] </s> If the mild action those authorities have taken is forbidden, it is plain that hereafter there is nothing effective left that they can do. If they can do nothing as to him, they are equally powerless as to rival totalitarian groups. Terminiello's victory today certainly fulfills the most extravagant hopes of both right and left totalitarian groups, who want nothing so much as to paralyze and discredit the only democratic authority and can curb them in their battle for the streets. I am unable to see the the local authorities have transgressed the Federal Constitution. Illinois imposed no prior censorship or suppression upon Terminiello. On the contrary, its sufferance and protection was all that enabled him to speak. It does not appear that the motive in punishing him is to silence the ideology he expressed as offensive to the State's policy or as untrue, or has any purpose of controlling his thought or its peaceful communication to others. There is no claim that the proceedings against Terminiello are designed to discriminate against him or the faction he represents or the ideas that he bespeaks. There is no indication that the charge against him is a mere pretext to give the semblance of legality to a covert effort to silence him or to prevent his followers or the public from hearing any truth that is in him. A trial court and jury has found only that in the context of violence and disorder in which it was made, this speech was a provocation to immediate breach of the peace and therefore cannot claim constitutional immunity from punishment. Under the Constitution as it has been understood and applied, at least until most recently, the State was within its powers in taking this action. Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish. Where an offense is </s> [337 U.S. 1 , 26] </s> induced by speech, the Court has laid down and often reiterated a test of the power of the authorities to deal with the speaking as also an offense. 'The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress (or the State or City) has a right to prevent.' (Emphasis supplied.) Mr. Justice Holmes in Schenck v. United States, 249 U.S. 47, 52 , 249. No one ventures to contend that the State on the basis of this test, for whatever it may be worth, was not justified in punishing Terminiello. In this case the evidence pro es beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate. If this Court has not silently abandoned this long standing test and substituted for the purposes of this case an unexpressed but more stringent test, the action of the State would have to be sustained. Only recently this Court held that a state could punish as a breach of the peace use of epithets such as 'damned racketeer' and 'damned fascists,' addressed to only one person, an official, because likely to provoke the average person to retaliation. But these are mild in comparison to the epithets 'slimy scum,' 'snakes,' 'bedbugs,' and the like, which Terminiello hurled at an already inflamed mob of his adversaries. Mr. Justice Murphy, writing for a unanimous Court in Chaplinsky v. New Hampshire, 315 U.S. 568 , 571-572, 769, said: 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed </s> [337 U.S. 1 , 27] </s> that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296 , 309, 310, 906, 128 A.L.R. 1352.' </s> In the latter case Mr. Justice Roberts for a unanimous Court also said: 'The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or other, appears, the power of the State to prevent or punish is obvious.' 310 U.S. 296, 308 , 905, 128 A.L.R. 1352. </s> How this present decision, denying state power to punish civilly one who precipitated a public riot involving hundreds of fanatic fighters in a most violent melee, can be squared with those unanimous statements of law, is incomprehensible to me. And the Court recently cited these two statements as indicating that 'The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mock- </s> [337 U.S. 1 , 28] </s> ery.' United Public Workers v. Mitchell, 330 U.S. 75, 95 , 567. However, these wholesome principles are abandoned today and in their place is substituted a dogma of absolute freedom for irresponsible and provocative utterance which almost completely sterilizes the power of local authorities to keep the peace as against this kind of tactics. Before giving the First and Fourteenth Amendments to the Constitution this effect, we should recall that our application of the First Amendment to Illinois rests entirely on authority which this Court has voted to itself. The relevant parts of the First Amendment, with emphasis supplied, reads: 'Congress shall make no law * * * abridging the freedom of speech.' This restrains no authority except Congress. Read as literally as some would do, it restrains Congress i terms so absolute that no legislation would be valid if it touched free speech, no matter how obscene, treasonable, defamatory, inciting or provoking. If it seems strange that no express qualifications were inserted in the Amendment, the answer may be that limitations were thought to be implicit in the definition of 'freedom of speech' as then understood. Or it may have been thought unnecessary to delegate to Congress any power over abuses of free speech. The Federal Government was then a new and experimental authority, remote from the people, and it was supposed to deal with a limited class of national problems. Inasmuch as any breaches of peace from abuse of free speech traditionally were punishable by state governments, it was needless to reserve that power in a provision drafted to exclude only Congress from such a field of law-making. The Fourteenth Amendment forbade states to deny the citizen 'due process of law.' But its terms gave no notice to the people that its adoption would strip their local governments of power to deal with such problems of local </s> [337 U.S. 1 , 29] </s> peace and order as we have here. Nor was it hinted by this Court for over half a century that the Amendment might have any such effect. In 1922, with concurrence of the most liberty-alert Justices of all times-Holmes and Brandeis-this Court declared flatly that the Constitution does not limit the power of the state over free speech. Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543 , 522, 27 A.L.R. 27. In later years the Court shifted this dogma and decreed that the Constitution does this very thing and that state power is bound by the same limitation as Congress. Gitlow v. New York, 268 U.S. 652 . I have no quarrel with this history. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 147 A.L.R. 674. I recite the method by which the right to limit the state has been derived only from this Court's own assumption of the power, with never a submission of legislation or amendment into which the people could write any qualification to prevent abuse of this liberty, as bearing upon the restraint I consider as becoming in exercise of self-given and unappealable power. It is significant that provisions adopted by the people with awareness that they applied to their own states have universally contained qualifying terms. The Constitution of Illinois is representative of the provisions put in nearly all state constitutions and reads (Art. II, 4): 'Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.' (Emphasis added.) That is what I think is meant by the cryptic phrase 'freedom of speech,' as used in the Federal Compact, and that is the rule I think we should apply to the states. This absence from the Constitution of any expressed power to deal with abuse of freedom of speech has enabled the Court to soar aloof from any consideration of the abuses which create problems for the states and to indulge in denials of local authority, some of which seem to me improvident in the light of functions which local gov- </s> [337 U.S. 1 , 30] </s> ernments must be relied on to perform for our free society. Quite apart from any other merits or defects, recent decisions have almost completely immunized this battle for the streets from any form of control. Streets and parks maintained by the public cannot legally be denied to groups 'for the communication of ideas.' Hague v. C.I.O., 307 U.S. 496 ; Jamison v. Texas, 318 U.S. 413 , 671. Cities may not protect their streets from activities which the law has always regarded subject to control, as nuisances. Lovell v. Griffin, 303 U.S. 444 ; Schneider v. State, 308 U.S. 147 . Cities may not protect the streets or even homes of their inhabitants from the aggressions of organized bands operating in large numbers. Douglas . Jeannette, 319 U.S. 157 . As in this case, the facts are set forth fully only in the dissent, 319 U.S. at page 166, 63 S.Ct. at page 882. See also Martin v. Struthers, 319 U.S. 141 . Neither a private party nor a public authority can invoke otherwise valid state laws against trespass to exclude from their property groups bent on disseminating propaganda. Marsh v. Alabama, 326 U.S. 501 ; Tucker v. Texas, 326 U.S. 517 . Picketing is largely immunized from control on the ground that it is free speech, Thornhill v. Alabama, 310 U.S. 88 , and police may not regulate sound trucks and loud-speakers, Saia v. New York, 334 U.S. 558 , though the Court finds them an evil that may be prohibited altogether. Kovacs v. Cooper, 336 U.S. 77 . And one-third of the Court has gone further and declared that a position 'that the state may prevent any conduct which induces people to violate the law, or any advocacy of unlawful activity, cannot be squared with the First Amendment. * * *' and it is only we who can decide when the limit is passed. Musser v. Utah, 333 U.S. 95, 102 , 400. Whatever the merits of any one of these decisions in isolation, and there were sound reasons for some of them, it cannot be denied that their cumulative effect has been a sharp handicap on municipal control </s> [337 U.S. 1 , 31] </s> of the streets and a dramatic encouragement of those who would use them in a battle of ideologies. I do not think we should carry this handicap further, as we do today, but should adhere to the principles heretofore announced to safeguard our liberties against abuse as well as against invasion. It should not be necessary to recall these elementary principles, but it has been a long time since some of them were even mentioned in this Court's writing on the subject and results indicate they may have been overlooked. I begin with the oft-forgotten principle which this case demonstrates, that freedom of speech exists only under law and not independently of it. What would Terminiello's theoretical freedom of speech have amounted to had he not been given active aid by the officers of the law? He could reach the hall only with this help, could talk only because they restrained the mob, and could make his getaway only under their protection. We would do well to recall the words of Chief Justice Hughes in Cox v. New Hampshire, 312 U.S. 569, 574 , 765, 133 A.L.R. 1396: 'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. * * *' This case demonstrates also that this Court's service to free speech is essentially negative and can consist only of reviewing actions by local magistrates. But if free speech is to be a practical reality, affirmative and immediate protection is required; and it can come only from nonjudicial sources. It depends on local police, maintained by law-abiding taxpayers, and who, regardless of their own feelings, risk themselves to maintain supremacy of law. Terminiello's theoretical right to speak free from interference would have no reality if Chicago should withdraw its officers to some other section of the city, or if the men assigned to the task should look the other </s> [337 U.S. 1 , 32] </s> way when the crowd threatens Terminiello. Can society by expected to keep these men at Terminiello's service if it has nothing to say of his behavior which may force them into dangerous action? No one will disagree that the fundamental, permanent and overriding policy of police and courts should be to permit and encourage utmost freedom of utterance. It is the legal right of any American citizen to advocate peaceful adoption of fascism or communism, socialism or capitalism. He may go far in expressing sentiments whether pro- emitic or anti-semitic, pro-negro or anti-negro, pro-Catholic or anti-Catholic. He is legally free to argue for some anti-American system of government to supersede by constitutional methods the one we have. It is our philosophy that the course of government should be controlled by a consensus of the governed. This process of reaching intelligent popular decisions requires free discussion. Hence we should tolerate no law or custom of censorship or suppression. But we must bear in mind also that no serious outbreak of mob violence, race rioting, lynching or public disorder is likely to get going without help of some speech-making to some mass of people. A street may be filled with men and women and the crowd still not be a mob. Unity of purpose, passion and hatred, which merges the many minds of a crowd into the mindlessness of a mob, almost invariably is supplied by speeches. It is naive, or worse, to teach that oratory with this object or effect is a service to liberty. No mob has ever protected any liberty, even its own, but if not put down it always winds up in an orgy of lawlessness which respects no liberties. In considering abuse of freedom by provocative utterances it is necessary to observe that the law is more tolerant of discussion than are most individuals or communities. Law is so indifferent to subjects of talk that I think of none that it should close to discussion. Reli- </s> [337 U.S. 1 , 33] </s> gious, social and political topics that in other times or countries have not been open to lawful debate may be freely discussed here. Because a subject is legally arguable, however, does not mean that public sentiment will be patient of its advocacy at all times and in all manners. So it happens that, while peaceful advocacy of communism or fascism is tolerated by the law, both of these doctrines arouse passionate reactions. A great number of people do not agree that introduction to America of communism or fascism is even debatable. Hence many speeches, such as that of Terminiello, may be legally permissible but may nevertheless in some surrounding, be a menace to peace and order. When conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society. Determination of such an issue involves a heavy responsibility. Courts must beware lest they become mere organs of popular intolerance. Not every show of opposition can justify treating a speech as a breach of peace. Neither speakers nor courts are obliged always and in all circumstances to yield to prevailing opinion and feeling. As a people grow in capacity for civilization and liberty their tolerance will grow, and they will endure, if not welcome, discussion even on topics as to which they are committed. They regard convictions as tentative and know that time and events will make their own terms with theories, by whomever and by whatever majorities they are held, and many will be proved wrong. But on our way to this idealistic state of tolerance the police have to deal with men as they are. The crowd mind is never tolerant of any idea which does not conform to its herd opinion. It does not want a tolerant effort at meeting of minds. It does not know the futility of trying to mob an idea. Released from the sense of </s> [337 U.S. 1 , 34] </s> personal responsibility that would restrain even the worst individuals in it if alone and brave with the courage of numbers, both radical and reactionary mobs endanger liberty as well as order. The authorities must control them and they are entitled to place some checks upon those whose behavior or speech calls such mobs into being. When the right of society to freedom from probable violence should prevail over the right of an individual to defy opposing opinion, presents a problem that always tests wisdom and often calls for immediate and vigorous action to preserve public order and safety. I do not think that the Constitution of the United States denies to the states and t e municipalities power to solve that problem in the light of local conditions, at least so long as danger to public order is not invoked in bad faith, as a cover for censorship or suppression. The preamble declares domestic tranquility as well as liberty to be an object in founding a Federal Government and I do not think the Forefathers were naive in believing both can be fostered by the law. Certain practical reasons reinforce the legal view that cities and states sould be sustained in the power to keep their streets from becoming the battleground for these hostile ideologies to the destruction and detriment of public order. There is no other power that can do it. Theirs are the only police that are on the spot. The Federal Government has no police force. The Federal Bureau of Investigation is, and should remain, not a police but an investigative service. To date the only federal agency for preserving and restoring order when local authority fails has been the Army. And when the military steps in, the court takes a less liberal view of the rights of the individual and sustains most arbitrary exercises of military power. See Korematsu v. United States, 323 U.S. 214 . Every failure of local authority to deal with riot problems results in a demand for the </s> [337 U.S. 1 , 35] </s> establishment of a federal police or intervention by federal authority. In my opinion, locally established and controlled police can never develop into the menace to general civil liberties that is inherent in a federal police. The ways in which mob violence may be worked up are subtle and various. Rarely will a speaker directly urge a crowd to lay hands on a victim or class of victims. An effective and safer way is to incite mob action while pretending to deplore it, after the classic example of Antony, and this was not lost on Terminiello. And whether one may be the cause of mob violence by his own personification or advocacy of ideas which a crowd already fears and hates, is not solved merely by going through a transcript of the speech to pick out 'fighting words.' The most insulting words can be neutralized if the speaker will smile when he says them, but a belligerent personality and an aggressive manner may kindle a fight without use of words that in cold type shock us. True judgment will be aided by observation of the individual defendant, as was possible for this jury and trial court but impossible for us. There are many appeals these days to liberty, often by those who are working for an opportunity to taunt democracy with its stupidity in furnishing them the weapons to destroy it as did Goebbels when he said: 'When democracy granted democratic methods for us in times of opposition, this (Nazi seizure of power) was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in times of (our) opposition.' 1 Nazi Conspiracy & Aggression (GPO 1946) 202, Docs. 2500-PS, 2412-PS. </s> [337 U.S. 1 , 36] </s> Invocation of constitutional liberties as part of the strategy for overthrowing them presents a dilemma to a free people which may not be soluble by constitutional logic alone. But I would not be understood as suggesting that the United States can or should meet this dilemma by suppression of free, open and public speaking on the part of any group or ideology. Suppression has never been a successful permanent policy; any surface serenity that it creates is a false security, while conspiratorial forces go underground. My confidence in American institutions and in the sound sense of the American people is such that if with a stroke of the pen I could silence every fascist and communist speaker, I would not do it. For I agree with Woodrow Wilson, who said: 'I have always been among those who b lieved that the greatest freedom of speech was the greatest safety, because if a man is a fool, the best thing to do is to encourage him to advertise the fact by speaking. It cannot be so easily discovered if you allow him to remain silent and look wise, but if you let him speak, the secret is out and the world knows that he is a fool. So it is by the exposure of folly that it is defeated; not by the seclusion of folly, and in this free air of free speech men get into that sort of communication with one another which constitutes the basis of all common achievement.' Address at the Institute of France, Paris, May 10, 1919. 2 Selected Literary and Political Papers and Addresses of Woodrow Wilson (1926) 333. </s> But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In </s> [337 U.S. 1 , 37] </s> the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty and that the factions engaged in this battle are not interested permanently in either. What would it matter to Terminiello if the police batter up some communists or, on the other hand, if the communists batter up some policemen? Either result makes grist for his mill; either would help promote hysteria and the demand for strong-arm methods in dealing with his adversaries. And what, on the other hand, have the communist agitators to lose from a battle with the police? This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. I would affirm the conviction. Mr. Justice BURTON joins in this opinion. Footnotes </s> [Footnote 1 'All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city * * * shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense.' 1(1), ch. 193, Rev.Code 1939, City of Chicago. </s> [Footnote 1 The opinions are reported at 332 Ill.App. 17, 74 N.E.2d 45, and at 400 Ill. 23, 79 N.E.2d 39. See, particularly, 332 Ill.App. at pages 23 and 38, 74 N.E.2d at pages 48 and 54; 400 Ill. at page 33, 79 N.E.2d at page 45. </s> [Footnote 1 'Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied ( Murdock v. City of Memphis, 20 Wall. 590; Haire v. Rice, 204 U.S. 291, 301 ), but to the particular claims duly made below, and denied (Seaboard Air Line Ry. v. Duvall, 225 U.S. 477, 485 , 488). We lack here the power occasionally exercised on review of judgments of lower federal courts to correct in criminal cases vital errors, although the objection was not taken in the trial court. Wiborg v. United States, 163 U.S. 632, 658 , 660, 1197; Clyatt v. United States, 197 U.S. 207, 221 , 222. This is a writ of error to a state court. Because we may not inquire into the errors now alleged I concur in affirming the judgment of the state court.' Concurring opinion of Mr. Justice Brandeis joined by Mr. Justice Holmes in Whitney v. California, 274 U.S. 357, 380 , 650.

United States Supreme Court UNITED STATES v. WILLIAMS(1951) No. 26 Argued: January 8, 1951Decided: April 23, 1951 </s> After one of the respondents had been convicted and the others acquitted of substantive offenses under what is now 18 U.S.C. 242 - i. e., beating or aiding and abetting the beating of certain suspects until they confessed to a theft - they were convicted in the Federal District Court for a violation of what is now 18 U.S.C. 241. The indictment arose out of the same facts and alleged that, "acting under the laws of . . . Florida," they "conspired to injure . . . a citizen of the United States and of the State of Florida, in the free exercise and enjoyment of the rights and privileges secured to him and protected by the Fourteenth Amendment." The Court of Appeals reversed their conviction on this conspiracy indictment. Held: The judgment of the Court of Appeals is affirmed. P. 82. </s> (a) MR. JUSTICE FRANKFURTER, joined by THE CHIEF JUSTICE, MR. JUSTICE JACKSON and MR. JUSTICE MINTON, was of the opinion that 241 only covers conduct which interferes with rights arising from the substantive powers of the Federal Government, and that including an allegation that the defendants acted under color of state law in an indictment under 241 does not extend the protection of the section to rights which the Federal Constitution merely guarantees against abridgment by the states. Pp. 71-82. </s> (b) MR. JUSTICE BLACK concurred in the result on the ground that trial under this conspiracy indictment was barred by the principle of res judicata. Pp. 85-86. </s> 179 F.2d 644, affirmed. </s> MR. JUSTICE DOUGLAS, joined by MR. JUSTICE REED, MR. JUSTICE BURTON and MR. JUSTICE CLARK, dissented. P. 87. </s> A conviction of respondents for violation of what is now 18 U.S.C. 241 was reversed by the Court of Appeals. 179 F.2d 644. This Court granted certiorari. 340 U.S. 849 . Affirmed, p. 82. [341 U.S. 70, 71] </s> Philip Elman argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney and Sydney Brodie. </s> John D. Marsh argued the cause for Ford, appellee, and filed a brief for Ford et al., appellees. With him on the brief was Bart A. Riley for Williams, appellee. </s> MR. JUSTICE FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE JACKSON and MR. JUSTICE MINTON joined. </s> In 1947 a Florida corporation employed a detective agency to investigate thefts of its property. The inquiry was conducted by one Williams, the head of the agency, and among the participants were two of his employees and a member of the Miami police force detailed to assist in the investigation. Certain of the company's employees fell under suspicion; and Williams and his collaborators, without arresting the suspects, took them one by one to a shack on the company's premises. There the investigators subjected them to the familiar "third-degree" which, after blows, kicks, threats, and prolonged exposure to a brilliant light, yielded "confession." </s> Williams and the other three were thereupon indicted for violation of 19 and 20 of the Criminal Code of the United States. 18 U.S.C. (1946 ed.) 51 and 52, now 18 U.S.C. 241 and 242. Williams was convicted under 20, the indictment alleging that he "wilfully, under color of the laws, statutes, ordinances, regulations and customs of the State of Florida . . . subjected . . . an inhabitant of the State of Florida, to deprivation of the rights, privileges and immunities secured to him and protected by the Fourteenth Amendment . . . ." This conviction is reviewed in No. 365, post, p. 97, also decided this day. The other defendants were acquitted of the charges under 20, and as to all defendants a [341 U.S. 70, 72] mistrial was declared under 19. This outcome of the indictment under 19 and 20 was followed by a new indictment against the four defendants under 19. The indictment alleged that "acting under the laws of the State of Florida" the defendants "conspired to injure . . . a citizen of the United States and of the State of Florida, in the free exercise and enjoyment of the rights and privileges secured to him and protected by the Fourteenth Amendment . . . ." This time all the defendants were convicted; but on appeal the Court of Appeals for the Fifth Circuit reversed. It held that in the conspiracy provision of 19 "the Congress had in mind the federal rights and privileges which appertain to citizens as such and not the general rights extended to all persons by the clause of the Fourteenth Amendment." 179 F.2d 644, 648. In the alternative, the court concluded that a broader construction of 19 would render it void for indefiniteness, and that there was error in the judge's charge as well as in the exclusion of evidence of the prior acquittal of three of the defendants. Together with Nos. 134 and 365 of this Term, the other two cases growing out of the same affair, we brought the case here because important questions in the administration of civil rights legislation are raised. 340 U.S. 849 . </s> The alternative grounds for the decision of the Court of Appeals need not be considered, for we agree that 241 (to use the current designation for what was 19 of the Criminal Code) does not reach the conduct laid as an offense in the prosecution here. This is not because we deny the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment; nor is it because we fully accept the course of reasoning of the court below. We base our decision on the history of 241, its text and context, the statutory framework in which it stands, its practical and judicial application - controlling [341 U.S. 70, 73] elements in construing a federal criminal provision that affects the wise adjustment between State responsibility and national control of essentially local affairs. The elements all converge in one direction. They lead us to hold that 241 only covers conduct which interferes with rights arising from the substantive powers of the Federal Government. </s> What is now known as 241 originated as 6 of the Act of May 31, 1870, 16 Stat. 140. That statute was entitled "An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes." In furtherance of its chief end of assuring the right of Negroes to vote, it provided in 2 and 3 that it should be a misdemeanor for any "person or officer" wrongfully to fail in a duty imposed on him by State law to perform or permit performance of acts necessary to registering or voting. In 4 interference with elections by private persons was made a similar offense. In the course of passage through Congress several sections were added which had a larger purpose. One of them, 17, was derived from the Civil Rights Act of 1866, 14 Stat. 27, and was designed to "secure to all persons the equal protection of the laws." 1 It imposed imprisonment up to one year and a fine up to one thousand dollars on </s> "any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens . . . ." 16 Stat. 140, 144. [341 U.S. 70, 74] </s> Through successive revisions it has become 242, the application of which to the facts before us is considered in No. 365, post, p. 97. </s> Another of the broader provisions is the section which is our immediate concern. This was its original form: </s> "SEC. 6. And be it further enacted, That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court, - the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years, - and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States." 16 Stat. 140, 141. </s> The dominant conditions of the Reconstruction Period were not conducive to the enactment of carefully considered and coherent legislation. Strong post-war feeling caused inadequate deliberation and led to loose and careless phrasing of laws relating to the new political issues. The sections before us are no exception. Although enacted together, they were proposed by different sponsors and hastily adopted. They received little attention in debate. While the discussion of the bill as a whole fills about 100 pages of the Congressional Globe, only two or three related to 6, and these are in good part [341 U.S. 70, 75] a record of complaint that the section was inadequately considered or understood. 2 </s> Nevertheless some conclusions are warranted. The first is that interference with civil rights by State officers was dealt with fully by 17 of the Act. Three years before its enactment Congress had passed the first general conspiracy statute. Act of March 2, 1867, 30, 14 Stat. 484; R. S. 5440; now 18 U.S.C. 371. This provision, in conjunction with 17, reached conspiracies under color of State law to deprive persons of rights guaranteed [341 U.S. 70, 76] by the Fourteenth Amendment. No other provision of the Act of 1870 was necessary for that purpose. </s> The second conclusion is that if language is to carry any meaning at all it must be clear that the principal purpose of 6, unlike 17, was to reach private action rather than officers of a State acting under its authority. Men who "go in disguise upon the public highway, or upon the premises of another" are not likely to be acting in official capacities. The history of the times - the law less activities of private bands, of which the Klan was the most conspicuous - explains why Congress dealt with both State disregard of the new constitutional prohibitions and private lawlessness. 3 The sponsor of 6 in the Senate made explicit that the purpose of his amendment was to control private conduct. 4 </s> [341 U.S. 70, 77] </s> These two conclusions strongly suggest a third: that the rights which 6 protects are those which Congress can beyond doubt constitutionally secure against interference by private individuals. Decisions of this Court have established that this category includes rights which arise from the relationship of the individual and the Federal Government. The right of citizens to vote in congressional elections, for instance, may obviously be protected by Congress from individual as well as from State interference. Ex parte Yarbrough, 110 U.S. 651 . On the other hand, we have consistently held that the category of rights which Congress may constitutionally protect from interference by private persons excludes those rights which the Constitution merely guarantees from interference by a State. Thus we held that an individual's interest in receiving a fair trial in State courts cannot be constitutionally vindicated by federal prosecution of private persons. United States v. Powell, 212 U.S. 564 ; accord, Hodges v. United States, 203 U.S. 1 ; United [341 U.S. 70, 78] States v. Wheeler, 254 U.S. 281 . The distinction which these decisions draw between rights that flow from the substantive powers of the Federal Government and may clearly be protected from private interference, and interests which the Constitution only guarantees from interference by States, is a familiar one in American law. See, e. g., Strauder v. West Virginia, 100 U.S. 303, 310 . </s> To construe 6 so as to protect interests not arising from the relationship of the individual with the Federal Government, but only guaranteed by the Constitution from interference by the States, would make its scope duplicate the coverage of 17 and the general conspiracy clause. That this is not in fact what Congress desired is confirmed by further examination of the text of the statute. Full allowance for hasty draftsmanship cannot obscure clear indications from the text that the category of interests protected by 6 does not include the rights against State action secured by 17. </s> Thus, when Congress wished to protect from State action interests guaranteed by the Fourteenth Amendment, it described them in 17 as rights "secured or protected" by the Constitution. But in 6 the narrower phrase "granted or secured" is used to define the interests protected from interference by individuals. When Congress wanted to reach action by State officers, the explicit reference in 17 to "color" of State law demonstrates that Congress knew how to make this purpose known. Similarly, reference in 2 and 3 to "persons or officers" indicates that Congress was able explicitly to draft a section applicable to persons acting in private and official capacities alike. In contrast, 6 was made applicable simply to "persons." Nothing in its terms indicates that color of State law was to be relevant to prosecution under it. 5 </s> [341 U.S. 70, 79] </s> To find this significance in the text of the Act of 1870 is not to give undue weight to differences in phraseology appearing in the statute. For the text of these sections has been considered by Congress not once but five times. Some minor changes of phraseology were made in the course of the successive revisions. But neither the Revised Statutes of 1874-1878, nor the Criminal Code of 1909, nor the 1926 codification in the United States Code, nor the 1948 revision of the Criminal Code, indicates either in text or reviser's commentary any change in substance. The continuity of meaning is indicated in the Appendix to this opinion, post, p. 83. </s> In three of the revisions, furthermore, Congress had before it a consistent course of decisions of this Court indicating that 6 - now 241 - was in practice interpreted only to protect rights arising from the existence and powers of the Federal Government. The pattern was established by United States v. Cruikshank, 92 U.S. 542 . The defendants were indicted for conspiring to deprive some Negro citizens of rights secured by the Constitution. This Court affirmed the decision of the Circuit Court arresting judgment entered on a verdict of guilty. It found that counts alleging interference with rights secured by the First, Second, Fourteenth and Fifteenth Amendments were objectionable because the rights asserted were not "granted or secured by the constitution or laws of the United States" within the meaning of the statute. 92 U.S. at 551. The pattern set by this case has never been departed from. </s> Ex parte Yarbrough, 110 U.S. 651 , was the first of seven decisions in which the Court held or assumed that the [341 U.S. 70, 80] right to vote in federal elections was protected by this legislation because it was a right "granted or secured" by the Constitution or laws of the United States. Guinn v. United States, 238 U.S. 347 ; United States v. Mosley, 238 U.S. 383 ; and United States v. Saylor, 322 U.S. 385 , held that interference by private persons with the right to vote in general elections for members of Congress is an offense under 241; in United States v. Classic, 313 U.S. 299 , the statute was found applicable to the Louisiana system of primary elections for Congress. 6 </s> In United States v. Waddell, 112 U.S. 76 , interference with the right to establish a claim under the Homestead Acts brought the offender within 241. The right did not pertain to United States citizenship; but since it was "wholly dependent upon the act of Congress," obstructing its exercise came "within the purview of the statute and of the constitutional power of Congress to make such statute." 112 U.S. at 79, 80. Similarly, the Court has held that assault upon a citizen in the custody of a United States marshal is a violation of the statute, Logan v. United States, 144 U.S. 263 . And so, a citizen may not be denied the right to inform on violation of federal laws. In re Quarles, 158 U.S. 532 ; Motes v. United States, 178 U.S. 458 . </s> Contrariwise, we have held that conspiracies to force citizens to give up their jobs or compel them to move out of a State are not within the terms of the statute. Hodges v. United States, 203 U.S. 1 ; United States v. Wheeler, 254 U.S. 281 . And in United States v. Powell, 212 U.S. 564 , we held that participants in a mob which seized a [341 U.S. 70, 81] Negro from the custody of the local sheriff and lynched him were not indictable under 241. 7 </s> In none of these decisions was the precise issue before us decided, for in none was it alleged that the defendants acted under color of State law. But the validity of a conviction under 241 depends on the scope of that section, which cannot be expanded by the draftsman of an indictment. The uses to which a statute has been put are strong evidence of the ends it was intended to serve. In this instance the decisions buttress what common sense and a spontaneous reading of the statute independently make clear, and give added significance to repeated reenactment without substantial change. 8 All the evidence points to the same conclusion: that 241 applies only to interference [341 U.S. 70, 82] with rights which arise from the relation of the victim and the Federal Government, and not to interference by State officers with rights which the Federal Government merely guarantees from abridgment by the States. </s> To reject this evidence and hold the indictment valid under 241 not only involves a new, distorting construction of an old statute. It also makes for redundancy and confusion and raises some needless constitutional problems. For if we assume that a conspiracy such as that described here is under color of State law, it can be reached under 242 and the general conspiracy statute. Indeed, the defendants before us were indicted and tried for violation of 242; the conviction of one of them under that section is before us in No. 365, post, p. 97. Unlike 242, the section now before us is not qualified by the requirement that the defendants have acted "willfully," and the very specialized content attributed to that word was found essential to sustaining 242 in Screws v. United States, 325 U.S. 91 . Nor does the defined crime have as an ingredient that the conspiracy be under color of State law. Criminal statutes should be given the meaning their language most obviously invites. Their scope should not be extended to conduct not clearly within their terms. </s> We therefore hold that including an allegation that the defendants acted under color of State law in an indictment under 241 does not extend the protection of the section to rights which the Federal Constitution merely guarantees against abridgment by the States. Since under this interpretation of the statute the indictment must fall, the judgment of the court below is </s> Affirmed. </s> [For opinion of MR. JUSTICE BLACK, concurring in the result, see post, p. 85.] </s> [For dissenting opinion of MR. JUSTICE DOUGLAS, joined by MR. JUSTICE REED, MR. JUSTICE BURTON and MR. JUSTICE CLARK, see post, p. 87.] [341 U.S. 70, 83] </s> </s> Footnotes [Footnote 1 See the remarks of Senator Stewart at the time he proposed the amendment, Cong. Globe, 41st Cong., 2d Sess. 3480 (1870). </s> [Footnote 2 Sections 2, 3, and 4 appeared in the bill as it was first introduced into the Senate. Cong. Globe, 41st Cong., 2d Sess. 3480 (1870). Section 17 was proposed by Senator Stewart at the outset of the debate. Ibid. Section 6 was subsequently proposed by Senator Pool. Id., 3612. </s> The debate of the Senate, which considered the Act as in Committee of the Whole, is found between pp. 3479 and 3808 of the Congressional Globe. Illustrative of the discussion of the consideration given the Act are these remarks of Senator Casserly: </s> "One of the worst provisions of the bill as it passed this body and as it went to the committee of conference, was a provision which escaped the notice of nearly every one of the minority of this body, and I verily believe of a very considerable portion of the majority of the Senators in this body. I refer to those provisions which were taken out of a bill for the enforcement of the fourteenth amendment. </s> "Now, is it a fit thing that legislation of that importance should go through the American Congress unknown to those members who had taken the greatest interest in informing themselves, as well as to that large body of other members whose right it was to know upon what they were voting? . . . I shall not undertake to show how far the course of the majority, in forcing the Senate bill through to a final vote at a midnight session of unusual duration, without the least public demand or exigency for such a proceeding, contributed to such a result; how far it contributed to the making, to the enacting into a law of provisions which were not supposed or understood by a considerable portion of the body to be in the bill that was before it." Id., 3759. See also the remarks of Senators Thurman and Stewart, id., 3672, 3808. The House devoted very little attention to the Act. See id., 1812, 3503, 3853, 3871. </s> [Footnote 3 The depth of feeling which the lawlessness of the period evoked is reflected in the letter of Chief Justice Thomas Ruffin to his son, July 8, 1869. See 4 Hamilton, The Papers of Thomas Ruffin, 225. </s> [Footnote 4 In introducing the provisions Senator Pool said, </s> "There are, Mr. President, various ways in which the right secured by the fifteenth amendment may be abridged by citizens in a State. If a State should undertake by positive enactment, as I have said, to abridge the right of suffrage, the courts of the country would prevent it; and I find that in section two of the bill which has been proposed as a substitute by the Judiciary Committee of the Senate provision is made for cases where officers charged with registration or officers charged with the assessment of taxes and with making the proper entries in connection therewith, shall refuse the right to register or to pay taxes to a citizen. . . . But, sir, individuals may prevent the exercise of the right of suffrage; individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the fourteenth amendment, as well as trespass upon the right conferred by the fifteenth. Not only citizens, but organizations of citizens, conspiracies, may be and are, as we are told, in some of the States formed for that purpose." Id., 3611. </s> The only other pertinent remarks of the Senator are these: </s> "I believe that the United States has the right, and that it is an incumbent duty upon it, to go into the States to enforce the rights of the citizens against all who attempt to infringe upon those rights [341 U.S. 70, 77] when they are recognized and secured by the Constitution of the country. . . . </s> "Mr. President, the liberty of a citizen of the United States, the prerogatives, the rights, and the immunities of American citizenship, should not be and cannot be safely left to the mere caprice of States either in the passage of laws or in the withholding of that protection which any emergency may require. If a State by omission neglects to give to every citizen within its borders a free, fair, and full exercise and enjoyment of his rights it is the duty of the United States Government to go into the State, and by its strong arm to see that he does have the full and free enjoyment of those rights." Id., 3613. </s> In both these passages the Senator states clearly that his proposals are intended to be applicable to private persons. In neither does he indicate distinctly the nature of the rights which 6 is to protect. The phrase "rights which are conferred upon the citizen by the fourteenth amendment" does not necessarily refer to interests guaranteed by the Amendment against State action. It may be relevant only to the new federal rights created by the Amendment through conferring citizenship on persons not previously entitled to it. </s> [Footnote 5 The position of 6 in the statute as well as its phraseology indicates that it was not intended to be a companion to 17, and to punish conspiracies wherever that section prohibited the substantive [341 U.S. 70, 79] offense. It is likewise clear that 6 was not intended to apply the provisions of 17 to private persons in the sense that 4 supplements 2 and 3. The location of 6 in the statute to the contrary confirms that its purpose and coverage are distinct from the other provisions of the law. </s> [Footnote 6 The two other decisions involving elections found the indictments wanting because what was charged was not deemed to constitute an effective interference with the exercise of a voter's federal franchise. United States v. Gradwell, 243 U.S. 476 ; United States v. Bathgate, 246 U.S. 220 . </s> [Footnote 7 Baldwin v. Franks, 120 U.S. 678 , held that a conspiracy to drive aliens from their homes is not an offense under the statute, since it is expressly limited to interference with citizens. In three other decisions of this Court the section was involved, but no question pertinent to the issues now before us was decided. United States v. Mason, 213 U.S. 115 ; O'Sullivan v. Felix, 233 U.S. 318 ; Pennsylvania System Federation v. Pennsylvania R. Co., 267 U.S. 203 . </s> [Footnote 8 It is worth noting that count 1 of the indictment in Screws v. United States, 325 U.S. 91 , laid a charge under 51 (now 241) similar to the indictment now here for review. There was a demurrer to that indictment on the ground that 51 did not afford a legal basis for such a charge. The argument advanced by the Government to support count 1 was substantially the argument the Government now makes in this case. The demurrer was sustained and the Government did not challenge the District Court's interpretation of 51, although the Criminal Appeals Act of 1907, 34 Stat. 1246, 18 U.S.C. (1946 ed.) 682, now 18 U.S.C. 3731, enabled the Government to secure review of that construction here. </s> In a few early cases this section was applied in lower courts to rights not arising from the relation of the victim to the Federal Government. See United States v. Hall, 26 Fed. Cas. 79; United States v. Mall, 26 Fed. Cas 1147; Ex parte Riggins, 134 F. 404. Since in none of these decisions was it alleged that the defendants acted under color of State law, each is plainly inconsistent with subsequent decisions of this Court. They also run counter even to the arguments adduced in support of the conviction here. [341 U.S. 70, 85] </s> MR. JUSTICE BLACK, concurring in the result. </s> This is one of three prosecutions of respondents Williams, Ford, Bombaci and Perry arising out of their alleged conduct in brutally coercing confessions from certain persons suspected of theft. The first prosecution was under an indictment charging respondents and two other defendants not now before us with violation of the substantive offense and conspiracy sections of the Civil Rights Act. 18 U.S.C. (1946 ed.) 51, 52, now 18 U.S.C. 241, 242. That trial resulted in conviction of respondent Williams and acquittal of the other five on the substantive counts; a mistrial was declared as to all defendants on the conspiracy counts. 1 Shortly thereafter two new indictments were returned: One again charged the six defendants with the same conspiracy; the other charged four of them with having committed perjury during their first trial. 2 On the second trial for conspiracy all were convicted and it is these convictions of respondents that we review in the present case. </s> I am convinced from the records before us that the principle of res judicata should have barred the Government from trying respondents on this second indictment for conspiracy. In the first trial the judge instructed the jury to convict on the substantive counts all defendants who either committed that crime or aided, abetted, assisted, counseled, encouraged, commanded, induced, procured or incited any other person to do so. Acquittal of [341 U.S. 70, 86] the five defendants was, therefore, a final determination that they had done none of these things, or, in effect, that they had nothing to do with the commission of the substantive offense itself. The principle of res judicata of course precludes a relitigation of the same factual issues in any subsequent trial. Sealfon v. United States, 332 U.S. 575 . This being true, the broad scope of the facts found adversely to the Government in the first trial barred a conviction of the five defendants upon the second trial because there is no evidence that they conspired except insofar as the unlawful agreement can be inferred from their having participated in some way in the substantive crime. Consequently, the conspiracy convictions cannot stand as to respondents Ford, Bombaci and Perry, these three being among those previously found not guilty of the substantive charge. </s> Nor should the conspiracy conviction of respondent Williams stand under these circumstances. The indictment did not allege and there was no evidence to suggest that he conspired with anyone other than the five named defendants. As a result, when the Government was precluded by res judicata from proving the guilt of any of Williams' alleged co-conspirators, the basis of the conspiracy charge as to Williams was necessarily removed since one person obviously cannot conspire with himself. Cf. Morrison v. California, 291 U.S. 82, 93 ; Feder v. United States, 257 F. 694; see also the cases collected in 72 A. L. R. 1180, 1186-1187; 97 A. L. R. 1312, 1313, 1316-1317. </s> Because, for the foregoing reasons, I believe the conspiracy convictions of respondents must fail, I find it unnecessary to determine whether 18 U.S.C. (1946 ed.) 51, now 18 U.S.C. (1946 ed., Supp. III) 241, as applied, is too vague and uncertain in scope to be consistent with the Fifth Amendment. </s> [Footnote 1 Williams' conviction on the substantive counts is reviewed in Williams v. United States, 341 U.S. 97 , decided today. </s> [Footnote 2 The indictment charging respondents Williams, Ford and Bombaci (and one defendant not before us in the present case) with perjury is reviewed today in United States v. Williams, 341 U.S. 58 . Respondents have claimed that because of the pending perjury charges the defendants refrained from testifying in the present trial for conspiracy. [341 U.S. 70, 87] </s> MR. JUSTICE DOUGLAS, with whom MR. JUSTICE REED, MR. JUSTICE BURTON, and MR. JUSTICE CLARK concur, dissenting. </s> Sections 19 and 20 of the Criminal Code, now 18 U.S.C. 241 and 242, are companion sections designed for the protection of great rights won after the Nation's most critical internal conflict. Section 19 covers conspiracies; 20, substantive offenses. Section 19 protects the "citizen"; 20 the "inhabitant." The sanction of 19 extends to "any right or privilege secured" to the citizen "by the Constitution or laws of the United States"; the sanction of 20 to "any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States." 1 </s> Mr. Justice Rutledge in Screws v. United States, 325 U.S. 91, 119 , wrote that in spite of the difference in wording [341 U.S. 70, 88] of 19 and 20 there are "no differences in the basic rights guarded. Each protects in a different way the rights and privileges secured to individuals by the Constitution." One would indeed have to strain hard at words to find any difference of substance between "any right or privilege secured" by the Constitution or laws of the United States ( 19) and "any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States" ( 20). If 20 embraces a broader range of rights than 19, it must be because it includes "immunities" as well as "rights" and "privileges" and "protects" them as well as "secures" them. When no major difference between 19 and 20 is apparent from the words themselves, it is strange to hear it said that though 20 extends to rights guaranteed against state action by the Fourteenth Amendment, 19 is limited to rights which the Federal Government can secure against invasion by private persons. The division of powers between State and Nation is so inherent in our republican form of government and so well established throughout our history that if Congress had desired to draw a distinction along that line, it is hard to imagine that it would not have made its purpose clear in the language used. 2 </s> It is true that 19 and 20 have different origins. Section 20 came into the law as 2 of the Act of April 7, 1866, 14 Stat. 27, while 19 first appeared as 6 of the [341 U.S. 70, 89] Act of May 31, 1870, 16 Stat. 141. We reviewed the history of 20 in Screws v. United States, 325 U.S. 91, 98 -100. The legislative history makes plain that 20 was an antidiscrimination measure designed to protect Negroes in their newly won rights. It was enacted before the Fourteenth Amendment became effective. But after that date it was reenacted as 17 of the Act of May 31, 1870, 16 Stat. 144; and in 1874 the prohibition against "the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States" was introduced. R. S. 5510. From this history there can be no doubt, as we stated in Screws v. United States, supra, p. 100, that 20 is "one of the sanctions to the great rights which the Fourteenth Amendment was designed to secure." If that be true - if "rights, privileges, or immunities secured or protected by the Constitution and laws of the United States" as used in 20 are not restricted to rights which the Federal Government can secure against interference by private persons - it is difficult to understand why "any right or privilege secured to him by the Constitution or laws of the United States," as used in 19, is so restricted. </s> It is true that a part of the purpose of 19 (which, as I have said, originated as 6 of the Act of May 31, 1870, 16 Stat. 141) was to give sanction to the right to vote which was guaranteed by the Fifteenth Amendment, recently adopted. That is made plain from the congressional debates. Cong. Globe, Pt. 4, 41st Cong., 2d Sess., pp. 3607 et seq. Yet the rights which 19 protected were not confined to voting rights; and one who reads the legislative history finds no trace of a suggestion that the [341 U.S. 70, 90] broadening of the language of 19 to include "any right or privilege secured" by the Constitution or laws of the United States was aimed only at those rights "secured" by the Federal Government against invasion by private persons. </s> The distinction now urged has not been noticed by students of the period. Thus Flack, in Adoption of the Fourteenth Amendment (1908), p. 223, wrote, "The bill as passed by the Houses was signed by the President May 31, 1870, and so became a law, and was, therefore, the first law for the enforcement of the Fourteenth and Fifteenth Amendments." And see Mr. Justice Roberts in Hague v. C. I. O., 307 U.S. 496, 510 . If the drastic restriction now proposed for 19 had been part of the architectural scheme for the Act of May 31, 1870, it is difficult to imagine that some trace of the purpose would not have been left in the legislative history. What we find points indeed the other way. Senator Pool of North Carolina, who introduced the section from which 19 evolved, indicated that it was his purpose to extend the protection of the new provision to the Fourteenth as well as to the Fifteenth Amendment. 3 It has, indeed, [341 U.S. 70, 91] long been assumed that 19 had a coverage broad enough to include all constitutional rights. Thus in United States v. Mosley, 238 U.S. 383, 387 , Mr. Justice Holmes [341 U.S. 70, 92] observed that 19 "dealt with Federal rights and with all Federal rights." </s> There is no decision, prior to that of the Court of Appeals in this case, which is opposed to that view. Fourteenth Amendment rights have sometimes been asserted under 19 and denied by the Court. That was true in United States v. Cruikshank, 92 U.S. 542 . But the denial had nothing to do with the issues in the present case. The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals. See Civil Rights Cases, 109 U.S. 3 ; Shelley v. Kraemer, 334 U.S. 1 . The Cruikshank case, like others, 4 involved wrongful action by individuals who did not act for a state nor under color of state authority. As the Court in the Cruikshank case said, "The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it . . . add any thing to the rights which one citizen has under the Constitution against another." 92 U.S. at pp. 554-555. There is implicit in this holding, as Mr. Justice Rutledge observed in the Screws case, supra, p. 125, note 22, that wrongful action by state officials would bring the case within 19. For the Court in the Cruikshank case stated, "The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty." </s> Section 19 has in fact been applied to the protection of rights under the Fourteenth Amendment. See United States v. Hall, 26 Fed. Cas. 79; United States v. Mall, 26 [341 U.S. 70, 93] Fed. Cas. 1147; Ex parte Riggins, 134 F. 404, writ dismissed, 199 U.S. 547 . Those attempts which failed did so not because 19 was construed to have too narrow a scope, but because the action complained of was individual action, not state action. See, e. g., United States v. Powell, 151 F. 648, aff'd, 212 U.S. 564 ; Powe v. United States, 109 F.2d 147. </s> While it is true, as Mr. Justice Rutledge stated in the Screws case, that there is no difference between 19 and 20 so far as the "basic rights guarded" are concerned, the coverage of the two sections is not coterminous. The difference is not merely in the fact that 19 covers conspiracies and 20 substantive offenses. Section 20 extends only to those who act "under color" of law, while 19 reaches "two or more persons" who conspire to injure any citizen in the enjoyment of any right or privilege secured to him by the Constitution, etc. The reach of 20 over deprivations of rights protected from invasion by private persons is therefore in this one respect less than that of 19. But that is no comfort to respondents in the present case. It certainly cannot be doubted that state officers, or those acting under color of state law, who conspire to wring confessions from an accused by force and violence, are included in "two or more persons" within the meaning of 19. As we hold in No. 365, Williams v. United States, post, p. 97, decided this day, such an act deprives the accused of the kind of trial which the Fourteenth Amendment guarantees. He is therefore denied the enjoyment of that right, within the meaning of 19. </s> In Screws v. United States, supra, we relieved 20 of the risk of unconstitutionality by reason of vagueness. We held that "a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness." 325 U.S. at [341 U.S. 70, 94] p. 103. The same analysis does like service here, as evidenced both by the construction of 19 and the charge to the jury in this case. </s> A conspiracy by definition is a criminal agreement for a specific venture. It is "a partnership in crime." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253 . As stated by Mr. Justice Holmes in Frohwerk v. United States, 249 U.S. 204, 209 , an "intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it." The trial court in its charge to the jury followed the ruling in the Screws case and gave precise application to this concept in avoidance of any claim of unconstitutionality of 19 on the grounds of vagueness. The court, after explaining to the jury what rights, enumerated in the indictment, were guaranteed under the Fourteenth Amendment, gave numerous charges on the element of intent. The following is typical: </s> "In order to convict under this indictment, it is necessary for the jury to find that the defendants had in mind the specific purpose of depriving the complaining witnesses of those rights guaranteed them under the Fourteenth Amendment to the Constitution of the United States, which are enumerated in the indictment, while acting under color of the laws of the State of Florida. </s> "The proof, if any, of a general intent to do the complaining witnesses a wrong is not sufficient, but a specific intent to deprive them of a Constitutional right, as the object of the conspiracy, if any, is a burden the law casts upon the Government. In considering whether the defendants had such specific intent, you may take into consideration all the circumstances of the case in the light of the evidence as it has been developed." [341 U.S. 70, 95] </s> In view of the nature of the conspiracy and charge to the jury in the instant case, it would be incongruous to strike 19 down on the grounds of vagueness and yet sustain 20 as we did in the Screws case. </s> The defense of res judicata is based on the acquittal of five of the respondents for violation of 20 - the substantive offense. It is argued that there is no evidence that the five conspired except insofar as the unlawful agreement can be inferred from their having participated in some way in the substantive crime. It is further argued that acquittal on the substantive counts was a determination that the five had nothing to do with the commission of the substantive offense. The conclusion therefore is that their conviction of the conspiracy entailed a relitigation, in violation of the principles of Sealfon v. United States, 332 U.S. 575 , of the factual issues involved in the prior trial. </s> The argument, however, is too facile for the facts. </s> First. The substantive crime was one of aiding and abetting. That offense has "a broader application" than conspiracy. "It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy." Nye & Nissen v. United States, 336 U.S. 613, 620 . Respondents may have conspired to do the act without actually aiding in its commission. In other words, the crimes are different. </s> Second. In the Sealfon case the jury's acquittal of the first offense necessarily constituted a rejection of the only evidence presented at the second trial and upon which conviction of the record offense depended. That was not true here. The acquittals on the substantive charges by no means established that the jury rejected all the evidence against the defendants. For example, the acquittals of the substantive offense may have been on the ground that the evidence showed no giving of actual aid to Williams when he obtained the confessions by force and violence. [341 U.S. 70, 96] The evidence, though insufficient to show that the five participated in the execution of the project, could nonetheless make overwhelmingly clear that they were members of the conspiracy that conceived it. </s> The links that tied respondents to the conspiracy are therefore not necessarily those that the jury rejected in the earlier trial. Accordingly the rule of Sealfon v. United States, supra, has no application. </s> [Footnote 1 Section 19 of the Criminal Code, 18 U.S.C. (1946 ed.) 51, provided: "If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States." </s> Section 20 of the Criminal Code, 18 U.S.C. (1946 ed.) 52, provided: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both." </s> [Footnote 2 The suggestion that the general conspiracy statute, 30 of the Act of March 2, 1867, 14 Stat. 484, enacted three years before 19, was adequate to reach conspiracies under color of state law to deprive persons of Fourteenth Amendment rights and that therefore the inclusion of such rights in 19 was not necessary bears little weight. The general conspiracy statute as originally enacted carried a penalty of not less than $1,000 and not more than $10,000 and imprisonment not exceeding 2 years. Section 19 has from the beginning carried a more severe penalty - not more than $5,000 and imprisonment not to exceed 10 years. Moreover, 19 at the time of its enactment carried a further penalty: the persons convicted were disabled from [341 U.S. 70, 89] holding "any office or place of honor, profit, or trust created by the Constitution or laws of the United States." Act of May 31, 1870, 6, 16 Stat. 141. The penalty of the general conspiracy statute has only recently been increased. See 18 U.S.C. (1946 ed., Supp. III) 371, reviser's note. </s> [Footnote 3 After discussing the Thirteenth, Fourteenth, and Fifteenth Amendments he said, "I believe that we have a perfect right under the Constitution of the United States, not only under these three amendments, but under the general scope and features and spirit of the Constitution itself, to go into any of these States for the purpose of protecting and securing liberty. I admit that when you go there for the purpose of restraining liberty, you can go only under delegated powers in express terms; but to go into the States for the purpose of securing and protecting the liberty of the citizen and the rights and immunities of American citizenship is in accordance with the spirit and whole object of the formation of the Union and the national Government. </s> "There are, Mr. President, various ways in which the right secured by the fifteenth amendment may be abridged by citizens in a State. . . . I believe the language of the Senate bill is sufficiently large [341 U.S. 70, 91] and comprehensive to embrace any other class of officers that might be charged with any act that was necessary to enable a citizen to perform any prerequisite to voting. But, sir, individuals may prevent the exercise of the right of suffrage; individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the fourteenth amendment, as well as trespass upon the right conferred by the fifteenth. Not only citizens, but organizations of citizens, conspiracies, may be and are, as we are told, in some of the States formed for that purpose. I see in the fourth section of the Senate bill a provision for cases where citizens by threats, intimidation, bribery, or otherwise prevent, delay, or hinder the exercise of this right; but there is nothing here that strikes at organizations of individuals, at conspiracies for that purpose. . . . </s> . . . . . </s> "That the United States Government has the right to go into the States and enforce the fourteenth and the fifteenth amendments is, in my judgment, perfectly clear, by appropriate legislation that shall bear upon individuals. I cannot see that it would be possible for appropriate legislation to be resorted to except as applicable to individuals who violate or attempt to violate these provisions. Certainly we cannot legislate here against States. As I said a few moments ago, it is upon individuals that we must press our legislation. It matters not whether those individuals be officers or whether they are acting upon their own responsibility; whether they are acting singly or in organizations. If there is to be appropriate legislation at all, it must be that which applies to individuals. </s> . . . . . </s> "Mr. President, the liberty of a citizen of the United States, the prerogatives, the rights, and the immunities of American citizenship, should not be and cannot be safely left to the mere caprice of States either in the passage of laws or in the withholding of that protection which any emergency may require. If a State by omission neglects to give to every citizen within its borders a free, fair, and full exercise and enjoyment of his rights it is the duty of the United States Government to go into the State, and by its strong arm to see that he does have the full and free enjoyment of those rights." Cong. Globe, 41st Cong., 2d Sess., pp. 3611, 3613. </s> [Footnote 4 See Hodges v. United States, 203 U.S. 1, 14 ; United States v. Powell, 151 F. 648, aff'd, 212 U.S. 564 ; United States v. Wheeler, 254 U.S. 281, 298 . </s> [341 U.S. 70, 97]

United States Supreme Court HENRY v. CITY OF ROCK HILL(1964) No. 826 Argued: Decided: April 6, 1964 </s> After this Court granted certiorari, vacated the judgment holding petitioners guilty of breach of the peace, and remanded the case to the Supreme Court of South Carolina "for further consideration in light of Edwards v. South Carolina, 372 U.S. 229 ," that court found Edwards and the later case of Fields v. South Carolina, 375 U.S. 44 , not controlling and reaffirmed the convictions. Held: Edwards and Fields, which established that the peaceful expression of unpopular views at a place not lawfully proscribed by state law is protected by the Fourteenth Amendment from state criminal action, are controlling here. </s> Certiorari granted and judgment reversed. </s> Jack Greenberg, Constance Baker Motley, Matthew J. Perry, Lincoln C. Jenkins, Jr., Donald James Sampson and Willie T. Smith, Jr. for petitioners. </s> PER CURIAM. </s> When this case was last before us, we granted certiorari, vacated the judgment holding petitioners guilty of breach of the peace, and remanded the case to the Supreme Court of South Carolina "for further consideration in light of Edwards v. South Carolina, 372 U.S. 229 ." 375 U.S. 6 . That has been our practice in analogous situations where, not certain that the case was free from all obstacles to reversal on an intervening precedent, we remand the case to the state court for reconsideration. Daegele v. Kansas, 375 U.S. 1 ; Pickelsimer v. Wainwright, 375 U.S. 2 ; Newsome v. North Carolina, 375 U.S. 21 ; Shockey v. Illinois, 375 U.S. 22 ; Ausbie v. California, 375 U.S. 24 ; Herrera v. Heinze, 375 U.S. 26 ; Barnes v. North Carolina, 375 U.S. 28 . The South Carolina Supreme Court examined Edwards and the later case of Fields v. South [376 U.S. 776, 777] Carolina, 375 U.S. 44 , found them not controlling, and reaffirmed the convictions. In its opinion on the remand in the present case, the South Carolina Supreme Court expressed doubt concerning the meaning and significance of our remand order, and it went on to explain why, in its view, the Edwards and the Fields cases were distinguishable. For those reasons, it is appropriate to add these words of explanation. </s> The South Carolina Supreme Court correctly concluded that our earlier remand did not amount to a final determination on the merits. * That order did, however, indicate that we found Edwards sufficiently analogous and, perhaps, decisive to compel re-examination of the case. </s> We now think Edwards and Fields control the result here. As in those cases, the petitioners here, while at a place where the State's law did not forbid them to be, were engaged in the "peaceful expression of unpopular views." Edwards v. South Carolina, 372 U.S., at 237 . They assembled in a peaceful, orderly fashion in front of the City Hall to protest segregation. They carried signs to that effect and they sang patriotic and religious songs. Although white onlookers assembled, no violence or threat of violence occurred and traffic was not disturbed. After 15 minutes of this, they were arrested for failure to disperse upon orders. Here, as in Edwards and Fields, petitioners "were convicted of an offense so generalized as to be, in the words of the South Carolina Supreme Court, `not susceptible of exact definition.'" Ibid. And here as there "they were convicted upon evidence which showed no more than that the opinions which they were [376 U.S. 776, 778] peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection." Ibid. </s> Edwards established that the "Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views." Ibid. As in Edwards, the South Carolina Supreme Court has here "defined a criminal offense so as to permit conviction of the petitioners if their speech `stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.' [Terminiello v. Chicago, 337 U.S. 1, 5 .]" Id., at 238. Accordingly certiorari is granted and the judgment is reversed. </s> [Footnote * The South Carolina Supreme Court intimated that the rule of Edwards was designed to guide us in determining our review of state action. But Edwards states a rule based upon the Constitution of the United States which, under the Supremacy Clause, is binding upon state courts as well as upon federal courts. </s> [376 U.S. 776, 779]

United States Supreme Court CONNECTICUT DEPARTMENT OF PUBLIC SAFETY et al. v. DOE, individually and on behalf of all others similarly situated(2003) No. 01-1231 Argued: November 13, 2002Decided: March 5, 2003 </s> Among other things, Connecticut's "Megan's Law" requires persons convicted of sexual offenses to register with the Department of Public Safety (DPS) upon their release into the community, and requires DPS to post a sex offender registry containing registrants' names, addresses, photographs, and descriptions on an Internet Website and to make the registry available to the public in certain state offices. Respondent, a convicted sex offender who is subject to the law, filed a 42 U.S.C. §1983 action on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Fourteenth Amendment's Due Process Clause. The District Court granted respondent summary judgment, certified a class of individuals subject to the law, and permanently enjoined the law's public disclosure provisions. The Second Circuit affirmed, concluding that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous." Held:The Second Circuit's judgment must be reversed because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme. Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. Paul v. Davis, 424 U.S. 693. But even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact--that he is not currently dangerous--that is not material under the statute. Cf., e.g., Wisconsin v. Constantineau, 400 U.S. 433. As the DPS Website explains, the law's requirements turn on an offender's conviction alone--a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Unless respondent can show that the substantive rule of law is defective (by conflicting with the Constitution), any hearing on current dangerousness is a bootless exercise. Respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, and maintains that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael H. v. Gerald D., 491 U.S. 110, 120 (plurality opinion). Such claims "must ultimately be analyzed" in terms of substantive due process. Id., at 121. Because the question is not properly before the Court, it expresses no opinion as to whether the State's law violates substantive due process principles. Pp. 4-6. 271 F.3d 38, reversed. Rehnquist, C.J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a concurring opinion. Souter, J., filed a concurring opinion, in which Ginsburg, J., joined. Stevens, J. (see No. 01-729), filed an opinion concurring in the judgment. </s> CONNECTICUT DEPARTMENT OF PUBLIC SAFETY,etal., PETITIONERS v. JOHN DOE, individually and on behalf of all others similarly situated on writ of certiorari to the united states court of appeals for the second circuit [March 5, 2003] </s> Chief Justice Rehnquist delivered the opinion of the Court. </s> We granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined the public disclosure of Connecticut's sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous." Doe v. Department of Public Safety ex rel. Lee, 271 F.3d 38, 44, 46 (2001). Connecticut, however, has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme. </s> "Sex offenders are a serious threat in this Nation." McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion). "[T]he victims of sex assault are most often juveniles," and "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sex assault." Id., at 32-33. Connecticut, like every other State, has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders. Connecticut's "Megan's Law" applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with the Connecticut Department of Public Safety (DPS) upon their release into the community. Each must provide personal information (including his name, address, photograph, and DNA sample); notify DPS of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted of sexually violent offenses must register for life. Conn. Gen. Stat. §§54-251, 54-252, 54-254 (2001). </s> The statute requires DPS to compile the information gathered from registrants and publicize it. In particular, the law requires DPS to post a sex offender registry onan Internet Website and to make the registry availableto the public in certain state offices. §§54-257, 54-258. Whether made available in an office or via the Internet, the registry must be accompanied by the following warning: "'Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.'" §54-258a. </s> Before the District Court enjoined its operation, the State's Website enabled citizens to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. The following disclaimer appeared on the first page of theWebsite: "'The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. [DPS] has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.'" 271 F.3d, at 44. </s> Petitioners include the state agencies and officials charged with compiling the sex offender registry and posting it on the Internet. Respondent Doe is a convicted sex offender who is subject to Connecticut's Megan's Law. He filed this action pursuant to Rev. Stat. §1979, 42 U.S.C. §1983, on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Due Process Clause of the Fourteenth Amendment. Specifically, respondent alleged that he is not a "'dangerous sexual offender,'" and that the Connecticut law "deprives him of a liberty interest--his reputation combined with the alteration of his status under state law--without notice or a meaningful opportunity to be heard." 271 F.3d, at 45-46. The District Court granted summary judgment for respondent on his due process claim. 132 F.Supp. 2d 57 (Conn. 2001). The court then certified a class of individuals subject to the Connecticut law, and permanently enjoined the law's public disclosure provisions. </s> The Court of Appeals affirmed, 271 F.3d 38 (CA2 2001), holding that the Due Process Clause entitles class members to a hearing "to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." Id., at 62. Because Connecticut had not provided such a hearing, the Court of Appeals enjoined petitioners from "'disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning [class members]'" and from "'identifying [them] as being included in the Registry.'" Ibid. The Court of Appeals reasoned that the Connecticut law implicated a "liberty interest" because of: (1) the law's stigmatization of respondent by "implying" that he is "currently dangerous," and (2) its imposition of "extensive and onerous" registration obligations on respondent. Id., at 57. From this liberty interest arose an obligation, in the Court of Appeals' view, to give respondent an opportunity to demonstrate that he was not "likely to be currently dangerous." Id., at 62. We granted certiorari, 535 U.S. 1077 (2002). </s> In Paul v. Davis, 424 U.S. 693 (1976), we held that mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. Petitioners urge us to reverse the Court of Appeals on the ground that, under Paul v. Davis, respondent has failed to establish that petitioners have deprived him of a liberty interest. We find it unnecessary to reach this question, however, because even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute. </s> In cases such as Wisconsin v. Constantineau, 400 U.S. 433 (1971), and Goss v. Lopez, 419 U.S. 565 (1975), we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove--that he is not currently dangerous--is of no consequence under Connecticut's Megan's Law. As the DPS Website explains, the law's requirements turn on an offender's conviction alone--a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. 271 F.3d, at 44 ("'Individuals included within the registry are included solely by virtue of their conviction record and state law'" (emphasis added)). No other fact is relevant to the disclosure of registrants' information. Conn. Gen. Stat. §§54-257, 54-258 (2001). Indeed, the disclaimer on the Website explicitly states that respondent's alleged nondangerousness simply does not matter. 271 F.3d, at 44 ("'[DPS] has made no determination that any individual included in the registry is currentlydangerous'"). </s> In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders--currently dangerous or not--must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise. It may be that respondent's claim is actually a substantive challenge to Connecticut's statute "recast in 'procedural due process' terms." Reno v. Flores, 507 U.S. 292, 308 (1993). Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, Brief for Respondent 44-45, and maintains, as he did below, that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael H. v. Gerald D., 491 U.S. 110, 120 (1989) (plurality opinion) (emphasis in original). See also id., at 132 (Stevens, J., concurring in judgment). Such claims "must ultimately be analyzed" in terms of substantive, not procedural, due process. Id., at 121. Because the question is not properly before us, we express no opinion as to whether Connecticut's Megan's Law violates principles of substantive due process. </s> Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme. Respondent cannot make that showing here. The judgment of the Court of Appeals is therefore Reversed. </s> CONNECTICUT DEPARTMENT OF PUBLIC SAFETY,etal., PETITIONERS v. JOHN DOE, individually and on behalf of all others similarly situated on writ of certiorari to the united states court of appeals for the second circuit [March 5, 2003] </s> Justice Scalia, concurring. </s> I join the Court's opinion, and add that even if the requirements of Connecticut's sex offender registration law implicate a liberty interest of respondent, the categorical abrogation of that liberty interest by a validly enacted statute suffices to provide all the process that is "due"--just as a state law providing that no one under the age of 16 may operate a motor vehicle suffices to abrogate that liberty interest. Absent a claim (which respondent has not made here) that the liberty interest in question is so fundamental as to implicate so-called "substantive" due process, a properly enacted law can eliminate it. That is ultimately why, as the Court's opinion demonstrates, a convicted sex offender has no more right to additional "process" enabling him to establish that he is not dangerous than (in the analogous case just suggested) a 15-year-old has a right to "process" enabling him to establish that he is a safe driver. </s> CONNECTICUT DEPARTMENT OF PUBLIC SAFETY,etal., PETITIONERS v. JOHN DOE, individually and on behalf of all others similarly situated on writ of certiorari to the united states court of appeals for the second circuit [March 5, 2003] </s> Justice Souter, with whom Justice Ginsburg joins, concurring. </s> I join the Court's opinion and agree with the observation that today's holding does not foreclose a claim that Connecticut's dissemination of registry information is actionable on a substantive due process principle. To the extent that libel might be at least a component of such a claim, our reference to Connecticut's disclaimer, ante, at 3, would not stand in the way of a substantive due process plaintiff. I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents' situation. </s> Connecticut allows certain sex offenders the possibility of avoiding the registration and reporting obligations of the statute. A court may exempt a convict from registration altogether if his offense was unconsented sexual contact, Conn. Gen. Stat. §54-251(c) (2001), or sexual intercourse with a minor aged between 13 and 16 while the offender was more than two years older than the minor, provided the offender was under age 19 at the time of the offense, §54-251(b). A court also has discretion to limit dissemination of an offender's registration information to law enforcement purposes if necessary to protect the identity of a victim who is related to the offender or, in the case of a sexual assault, who is the offender's spouse or cohabitor. §§54-255(a), (b).** Whether the decision is to exempt an offender from registration or to restrict publication of registry information, it must rest on a finding that registration or public dissemination is not required for public safety. §§54-251(b), 54-255(a), (b). The State thus recognizes that some offenders within the sweep of the publication requirement are not dangerous to others in any way justifying special publicity on the Internet, and the legislative decision to make courts responsible for granting exemptions belies the State's argument that courts are unequipped to separate offenders who warrant special publication from those who do not. </s> The line drawn by the legislature between offenders who are sensibly considered eligible to seek discretionary relief from the courts and those who are not is, like all legislative choices affecting individual rights, open to challenge under the Equal Protection Clause. See, e. g., 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law §17.6 (3d ed. 1999); L. Tribe, American Constitutional Law §16-34 (2d ed. 1988). The refusal to allow even the possibility of relief to, say, a 19-year-old who has consensual intercourse with a minor aged 16 is therefore a reviewable legislative determination. Today's case is no occasion to speak either to the possible merits of such a challenge or the standard of scrutiny that might be in order when considering it. I merely note that the Court's rejection of respondents' procedural due process claim does not immunize publication schemes like Connecticut's from an equal protection challenge. </s> FOOTNOTESFootnote **To mitigate the retroactive effects of the statute, offenders in these categories who were convicted between October 1, 1988, and June 30, 1999, were allowed to petition a court for restricted dissemination of registry information. §§54-255(c)(1)-(4). A similar petition was also available to any offender who became subject to registration by virtue of a conviction prior to October 1, 1998, if he was not incarcerated for the offense, had not been subsequently convicted of a registrable offense, and had properly registered under the law. §54-255(c)(5).

United States Supreme Court LALLI v. LALLI(1978) No. 77-1115 Argued: October 4, 1978Decided: December 11, 1978 </s> Appellant, assertedly the illegitimate son of Mario Lalli, who died intestate in New York, filed a petition for a compulsory accounting from appellee administratrix of the estate, claiming that he was entitled to inherit from Mario as his child. Appellee opposed the petition, arguing that even if appellant were Mario's child, he was not a lawful distributee of the estate because he had failed to comply with a New York statutory provision ( 4-1.2) that in pertinent part allows an illegitimate child to inherit from his intestate father only if a court of competent jurisdiction has, during the father's lifetime, entered an order declaring paternity. Appellant contended that his failure to obtain such an order during Mario's lifetime could not bar his inheritance because 4-1.2 discriminated against him on the basis of his illegitimate birth in violation of the Equal Protection Clause of the Fourteenth Amendment. Appellant tendered evidence that he was Mario's child. The Surrogate's Court ruled that appellant was properly excluded as a distributee under 4-1.2. The New York Court of Appeals affirmed and upheld the constitutionality of the statute. Held: The judgment is affirmed. Pp. 264-276; 276; 276-277. </s> 43 N. Y. 2d 65, 371 N. E. 2d 481, affirmed. </s> MR. JUSTICE POWELL, joined by THE CHIEF JUSTICE and MR. JUSTICE STEWART, concluded that 4-1.2 does not violate the Equal Protection Clause of the Fourteenth Amendment. Trimble v. Gordon, 430 U.S. 762 , distinguished. Pp. 264-276. </s> (a) While classifications based on illegitimacy are not subject to "strict scrutiny," they are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests, Mathews v. Lucas, 427 U.S. 495, 506 ; Trimble v. Gordon, supra, at 767. P. 265. </s> (b) The Illinois statute invalidated in Trimble (which, in addition to requiring the father's acknowledgment of paternity, required the legitimation of the child through intermarriage of the parents as a precondition to inheritance) eliminated "the possibility of a middle ground between the extremes of complete exclusion [of illegitimates claiming under their fathers' estates] and case-by-case determination of paternity." But the single requirement at issue under 4-1.2 is an evidentiary one; the marital status of the parents is irrelevant. Pp. 266-267. </s> (c) The primary goal underlying the challenged aspects of 4-1.2 is [439 U.S. 259, 260] to provide for the just and orderly disposition of a decedent's property where paternal inheritance by illegitimate children is concerned, an area involving unique and difficult problems of proof. Pp. 268-271. </s> (d) Section 4-1.2 represents a carefully considered legislative judgment on how best to "grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children," while protecting the important state interest in the just and orderly disposition of decedents' estates. Accuracy is enhanced by placing paternity disputes in a judicial forum during the lifetime of the father, which (in addition to permitting a man to defend his reputation against unjust paternity claims) helps to forestall fraudulent assertions of paternity. Estate administration is facilitated, and delay and uncertainty minimized, where the entitlement of an illegitimate child is a matter of judicial record before administration commences. While there may be some instances where 4-1.2, as is often the case with statutory classifications, will produce inequitable results, the reach of the statute, unlike that involved in Trimble, does not exceed justifiable state objectives. Pp. 271-274. </s> MR. JUSTICE BLACKMUN would affirm the judgment below on the basis of Labine v. Vincent, 401 U.S. 532 , and rather than distinguishing Trimble, supra, would overrule that decision. Pp. 276-277. </s> MR. JUSTICE REHNQUIST concurred in the judgment for the reasons stated in his dissent in Trimble, supra, at 777. P. 276. </s> POWELL, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C. J., and STEWART, J., joined. STEWART, J., filed a concurring opinion, post, p. 276. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 276. REHNQUIST, J., filed a statement concurring in the judgment, post, p. 276. BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and STEVENS, JJ., joined, post, p. 277. </s> Leonard M. Henkin argued the cause for appellant. With him on the brief was Morris R. Henkin. </s> Irwin M. Strum, Assistant Attorney General of New York, argued the cause for appellee Lefkowitz. With him on the brief were Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Neil S. Solon and Suzanne McGrattan, Assistant Attorneys General. * </s> [Footnote * John E. Kirklin, Kalman Finkel, and Jane Greengold Stevens filed a [439 U.S. 259, 261] brief for the Legal Aid Society of New York City et al. as amici curiae urging reversal. [439 U.S. 259, 261] </s> MR. JUSTICE POWELL announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and MR. JUSTICE STEWART join. </s> This case presents a challenge to the constitutionality of 4-1.2 of New York's Estates, Powers, and Trusts Law, 1 which requires illegitimate children who would inherit from their fathers by intestate succession to provide a particular form of proof of paternity. Legitimate children are not subject to the same requirement. </s> I </s> Appellant Robert Lalli claims to be the illegitimate son of Mario Lalli who died intestate on January 7, 1973, in the State of New York. Appellant's mother, who died in 1968, never was married to Mario. After Mario's widow, Rosamond Lalli, was appointed administratrix of her husband's estate, appellant petitioned the Surrogate's Court for Westchester County for a compulsory accounting, claiming that he and his sister Maureen Lalli were entitled to inherit from Mario as his children. Rosamond Lalli opposed the petition. She argued that even if Robert and Maureen were Mario's children, they were not lawful distributees of the estate because they had failed to comply with 4-1.2, 2 which provides in part: </s> "An illegitimate child is the legitimate child of his [439 U.S. 259, 262] father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child." </s> Appellant conceded that he had not obtained an order of filiation during his putative father's lifetime. He contended, however, that 4-1.2, by imposing this requirement, discriminated against him on the basis of his illegitimate birth in violation of the Equal Protection Clause of the Fourteenth Amendment. 3 Appellant tendered certain evidence of his relationship with Mario Lalli, including a notarized document [439 U.S. 259, 263] in which Lalli, in consenting to appellant's marriage, referred to him as "my son," and several affidavits by persons who stated that Lalli had acknowledged openly and often that Robert and Maureen were his children. </s> The Surrogate's Court noted that 4-1.2 had previously, and unsuccessfully, been attacked under the Equal Protection Clause. After reviewing recent decisions of this Court concerning discrimination against illegitimate children, particularly Labine v. Vincent, 401 U.S. 532 (1971), and three New York decisions affirming the constitutionality of the statute, In re Belton, 70 Misc. 2d 814, 335 N. Y. S. 2d 177 (Surr. Ct. 1972); In re Hendrix, 68 Misc. 2d 439, 444, 326 N. Y. S. 2d 646, 652 (Surr. Ct. 1971); In re Crawford, 64 Misc. 2d 758, 762-763, 315 N. Y. S. 2d 890, 895 (Surr. Ct. 1970), the court ruled that appellant was properly excluded as a distributee of Lalli's estate and therefore lacked status to petition for a compulsory accounting. </s> On direct appeal the New York Court of Appeals affirmed. In re Lalli, 38 N. Y. 2d 77, 340 N. E. 2d 721 (1975). It understood Labine to require the State to show no more than that "there is a rational basis for the means chosen by the Legislature for the accomplishment of a permissible State objective." 38 N. Y. 2d, at 81, 340 N. E. 2d, at 723. After discussing the problems of proof peculiar to establishing paternity, as opposed to maternity, the court concluded that the State was constitutionally entitled to require a judicial decree during the father's lifetime as the exclusive form of proof of paternity. </s> Appellant appealed the Court of Appeals' decision to this Court. While that case was pending here, we decided Trimble v. Gordon, 430 U.S. 762 (1977). Because the issues in these two cases were similar in some respects, we vacated and remanded to permit further consideration in light of Trimble. Lalli v. Lalli, 431 U.S. 911 (1977). [439 U.S. 259, 264] </s> On remand, 4 the New York Court of Appeals, with two judges dissenting, adhered to its former disposition. In re Lalli, 43 N. Y. 2d 65, 371 N. E. 2d 481 (1977). It acknowledged that Trimble contemplated a standard of judicial review demanding more than "a mere finding of some remote rational relationship between the statute and a legitimate State purpose," 43 N. Y. 2d, at 67, 371 N. E. 2d, at 482, though less than strictest scrutiny. Finding 4-1.2 to be "significantly and determinatively different" from the statute overturned in Trimble, the court ruled that the New York law was sufficiently related to the State's interest in "`the orderly settlement of estates and the dependability of titles to property passing under intestacy laws,'" 43 N. Y. 2d, at 67, 69-70, 371 N. E. 2d, at 482-483, quoting Trimble, supra, at 771, to meet the requirements of equal protection. </s> Appellant again sought review here, and we noted probable jurisdiction. 435 U.S. 921 (1978). We now affirm. </s> II </s> We begin our analysis with Trimble. At issue in that case was the constitutionality of an Illinois statute providing that a child born out of wedlock could inherit from his intestate father only if the father had "acknowledged" the child and the child had been legitimated by the intermarriage of the parents. The appellant in Trimble was a child born out of wedlock whose father had neither acknowledged her nor married her mother. He had, however, been found to be her father in a judicial decree ordering him to contribute to her support. When the father died intestate, the child was excluded as a distributee because the statutory requirements for inheritance had not been met. </s> We concluded that the Illinois statute discriminated against [439 U.S. 259, 265] illegitimate children in a manner prohibited by the Equal Protection Clause. Although, as decided in Mathews v. Lucas, 427 U.S. 495, 506 (1976), and reaffirmed in Trimble, supra, at 767, classifications based on illegitimacy are not subject to "strict scrutiny," they nevertheless are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests. Upon examination, we found that the Illinois law failed that test. </s> Two state interests were proposed which the statute was said to foster: the encouragement of legitimate family relationships and the maintenance of an accurate and efficient method of disposing of an intestate decedent's property. Granting that the State was appropriately concerned with the integrity of the family unit, we viewed the statute as bearing "only the most attenuated relationship to the asserted goal." Trimble, supra, at 768. We again rejected the argument that "persons will shun illicit relations because the offspring may not one day reap the benefits" that would accrue to them were they legitimate. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173 (1972). The statute therefore was not defensible as an incentive to enter legitimate family relationships. </s> Illinois' interest in safeguarding the orderly disposition of property at death was more relevant to the statutory classification. We recognized that devising "an appropriate legal framework" in the furtherance of that interest "is a matter particularly within the competence of the individual States." Trimble, supra, at 771. An important aspect of that framework is a response to the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates. See infra, at 270-271. These difficulties, we said, "might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required either for illegitimate children claiming under their mothers' estates or for legitimate children generally." Trimble, supra, at 770. [439 U.S. 259, 266] </s> The Illinois statute, however, was constitutionally flawed because, by insisting upon not only an acknowledgment by the father, but also the marriage of the parents, it excluded "at least some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws." Id., at 771. We concluded that the Equal Protection Clause required that a statute placing exceptional burdens on illegitimate children in the furtherance of proper state objectives must be more "`carefully tuned to alternative considerations.'" id., at 772, quoting Mathews v. Lucas, supra, at 513, than was true of the broad disqualification in the Illinois law. </s> III </s> The New York statute, enacted in 1965, was intended to soften the rigors of previous law which permitted illegitimate children to inherit only from their mothers. See infra, at 269. By lifting the absolute bar to paternal inheritance, 4-1.2 tended to achieve its desired effect. As in Trimble, however, the question before us is whether the remaining statutory obstacles to inheritance by illegitimate children can be squared with the Equal Protection Clause. </s> A </s> At the outset we observe that 4-1.2 is different in important respects from the statutory provision overturned in Trimble. The Illinois statute required, in addition to the father's acknowledgment of paternity, the legitimation of the child through the intermarriage of the parents as an absolute precondition to inheritance. This combination of requirements eliminated "the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." Trimble, 430 U.S., at 770 -771. As [439 U.S. 259, 267] illustrated by the facts in Trimble, even a judicial declaration of paternity was insufficient to permit inheritance. </s> Under 4-1.2, by contrast, the marital status of the parents is irrelevant. The single requirement at issue here is an evidentiary one - that the paternity of the father be declared in a judicial proceeding sometime before his death. 5 The child need not have been legitimated in order to inherit from his father. Had the appellant in Trimble been governed by 4-1.2, she would have been a distributee of her father's estate. See In re Lalli, 43 N. Y. 2d, at 68 n. 2, 371 N. E. 2d, at 482 n. 2. </s> A related difference between the two provisions pertains to the state interests said to be served by them. The Illinois law was defended, in part, as a means of encouraging legitimate family relationships. No such justification has been offered in support of 4-1.2. The Court of Appeals disclaimed that the purpose of the statute, "even in small part, [439 U.S. 259, 268] was to discourage illegitimacy, to mold human conduct or to set societal norms." In re Lalli, supra, at 70, 371 N. E. 2d, at 483. The absence in 4-1.2 of any requirement that the parents intermarry or otherwise legitimate a child born out of wedlock and our review of the legislative history of the statute, infra, at 269-271, confirm this view. </s> Our inquiry, therefore, is focused narrowly. We are asked to decide whether the discrete procedural demands that 4-1.2 places on illegitimate children bear an evident and substantial relation to the particular state interests this statute is designed to serve. </s> B </s> The primary state goal underlying the challenged aspects of 4-1.2 is to provide for the just and orderly disposition of property at death. 6 We long have recognized that this is an area with which the States have an interest of considerable magnitude. Trimble, supra, at 771; Weber v. Aetna Casualty & Surety Co., 406 U.S., at 170 ; Labine v. Vincent, 401 U.S., at 538 ; see also Lyeth v. Hoey, 305 U.S. 188, 193 (1938); Mager v. Grima, 8 How. 490, 493 (1850). </s> This interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one New York Surrogate's Court has observed: </s> "[T]he birth of the child is a recorded or registered event usually taking place in the presence of others. In most cases the child remains with the mother and for a time is necessarily reared by her. That the child is the child of a particular woman is rarely difficult to prove." In re Ortiz, 60 Misc. 2d [439 U.S. 259, 269] 756, 761, 303 N. Y. S. 2d 806, 812 (1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. "The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy." Ibid. (emphasis in original); accord, In re Flemm, 85 Misc. 2d 855, 861, 381 N. Y. S. 2d 573, 576-577 (Surr. Ct. 1975); In re Hendrix, 68 Misc. 2d, at 443, 326 N. Y. S. 2d, at 650; cf. Trimble, supra, at 770, 772. </s> Thus, a number of problems arise that counsel against treating illegitimate children identically to all other heirs of an intestate father. These were the subject of a comprehensive study by the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates. This group, known as the Bennett Commission, 7 consisted of individuals experienced in the practical problems of estate administration. In re Flemm, supra, at 858, 381 N. Y. S. 2d, at 575. The Commission issued its report and recommendations to the legislature in 1965. See Fourth Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, Legis. Doc. No. 19 (1965) (hereinafter Commission Report). The statute now codified as 4-1.2 was included. </s> Although the overarching purpose of the proposed statute was "to alleviate the plight of the illegitimate child," Commission Report 37, the Bennett Commission considered it necessary to impose the strictures of 4-1.2 in order to mitigate serious difficulties in the administration of the estates of [439 U.S. 259, 270] both testate and intestate decedents. The Commission's perception of some of these difficulties was described by Surrogate Sobel, a member of "the busiest [surrogate's] court in the State measured by the number of intestate estates which traffic daily through this court," In re Flemm, supra, at 857, 381 N. Y. S. 2d, at 574, and a participant in some of the Commission's deliberations: </s> "An illegitimate, if made an unconditional distributee in intestacy, must be served with process in the estate of his parent or if he is a distributee in the estate of the kindred of a parent. . . . And, in probating the will of his parent (though not named a beneficiary) or in probating the will of any person who makes a class disposition to `issue' of such parent, the illegitimate must be served with process. . . . How does one cite and serve an illegitimate of whose existence neither family nor personal representative may be aware? And of greatest concern, how achieve finality of decree in any estate when there always exists the possibility however remote of a secret illegitimate lurking in the buried past of a parent or an ancestor of a class of beneficiaries? Finality in decree is essential in the Surrogates' Courts since title to real property passes under such decree. Our procedural statutes and the Due Process Clause mandate notice and opportunity to be heard to all necessary parties. Given the right to intestate succession, all illegitimates must be served with process. This would be no real problem with respect to those few estates where there are `known' illegitimates. But it presents an almost insuperable burden as regards `unknown' illegitimates. The point made in the [Bennett] commission discussions was that instead of affecting only a few estates, procedural problems would be created for many - some members suggested a majority - of estates." 85 Misc. 2d, at 859, 381 N. Y. S. 2d, at 575-576. [439 U.S. 259, 271] </s> Cf. In re Leventritt, 92 Misc. 2d 598, 601-602, 400 N. Y. S. 2d 298, 300-301 (Surr. Ct. 1977). </s> Even where an individual claiming to be the illegitimate child of a deceased man makes himself known, the difficulties facing an estate are likely to persist. Because of the particular problems of proof, spurious claims may be difficult to expose. The Bennett Commission therefore sought to protect "innocent adults and those rightfully interested in their estates from fraudulent claims of heirship and harassing litigation instituted by those seeking to establish themselves as illegitimate heirs." Commission Report 265. </s> C </s> As the State's interests are substantial, we now consider the means adopted by New York to further these interests. In order to avoid the problems described above, the Commission recommended a requirement designed to ensure the accurate resolution of claims of paternity and to minimize the potential for disruption of estate administration. Accuracy is enhanced by placing paternity disputes in a judicial forum during the lifetime of the father. As the New York Court of Appeals observed in its first opinion in this case, the "availability [of the putative father] should be a substantial factor contributing to the reliability of the fact-finding process." In re Lalli, 38 N. Y. 2d, at 82, 340 N. E. 2d, at 724. In addition, requiring that the order be issued during the father's lifetime permits a man to defend his reputation against "unjust accusations in paternity claims," which was a secondary purpose of 4-1.2. Commission Report 266. </s> The administration of an estate will be facilitated, and the possibility of delay and uncertainty minimized, where the entitlement of an illegitimate child to notice and participation is a matter of judicial record before the administration commences. Fraudulent assertions of paternity will be much less likely to succeed, or even to arise, where the proof is put [439 U.S. 259, 272] before a court of law at a time when the putative father is available to respond, rather than first brought to light when the distribution of the assets of an estate is in the offing. 8 </s> Appellant contends that 4-1.2, like the statute at issue in Trimble, excludes "significant categories of illegitimate children" who could be allowed to inherit "without jeopardizing the orderly settlement" of their intestate fathers' estates. Trimble, 430 U.S., at 771 . He urges that those in his position - "known" illegitimate children who, despite the absence of an order of filiation obtained during their fathers' lifetimes, can present convincing proof of paternity - cannot rationally be denied inheritance as they pose none of the risks 4-1.2 was intended to minimize. 9 </s> We do not question that there will be some illegitimate children who would be able to establish their relationship to [439 U.S. 259, 273] their deceased fathers without serious disruption of the administration of estates and that, as applied to such individuals, 4-1.2 appears to operate unfairly. But few statutory classifications are entirely free from the criticism that they sometimes produce inequitable results. Our inquiry under the Equal Protection Clause does not focus on the abstract "fairness" of a state law, but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment. </s> The Illinois statute in Trimble was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1.2 does not share this defect. Inheritance is barred only where there has been a failure to secure evidence of paternity during the father's lifetime in the manner prescribed by the State. This is not a requirement that inevitably disqualifies an unnecessarily large number of children born out of wedlock. </s> The New York courts have interpreted 4-1.2 liberally and in such a way as to enhance its utility to both father and child without sacrificing its strength as a procedural prophylactic. For example, a father of illegitimate children who is willing to acknowledge paternity can waive his defenses in a paternity proceeding, e. g., In re Thomas, 87 Misc. 2d 1033, 387 N. Y. S. 2d 216 (Surr. Ct. 1976), or even institute such a proceeding himself. 10 N. Y. Family Court Act 522 (McKinney Supp. 1978); In re Flemm, 85 Misc. 2d, at 863, 381 N. Y. S. 2d, at 578. In addition, the courts have excused "technical" failures by illegitimate children to comply with [439 U.S. 259, 274] the statute in order to prevent unnecessary injustice. E. g., In re Niles, 53 App. Div. 2d 983, 385 N. Y. S. 2d 876 (1976), appeal denied, 40 N. Y. 2d 809, 392 N. Y. S. 2d 1027 (1977) (filiation order may be signed nunc pro tunc to relate back to period prior to father's death when court's factual finding of paternity had been made); In re Kennedy, 89 Misc. 2d 551, 554, 392 N. Y. S. 2d 365, 367 (Surr. Ct. 1977) (judicial support order treated as "tantamount to an order of filiation," even though paternity was not specifically declared therein). </s> As the history of 4-1.2 clearly illustrates, the New York Legislature desired to "grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children," Commission Report 265 (emphasis added), while protecting the important state interests we have described. Section 4-1.2 represents a carefully considered legislative judgment as to how this balance best could be achieved. </s> Even if, as MR. JUSTICE BRENNAN believes, 4-1.2 could have been written somewhat more equitably, it is not the function of a court "to hypothesize independently on the desirability or feasibility of any possible alternative[s]" to the statutory scheme formulated by New York. Mathews v. Lucas, 427 U.S., at 515 . "These matters of practical judgment and empirical calculation are for [the State]. . . . In the end, the precise accuracy of [the State's] calculations is not a matter of specialized judicial competence; and we have no basis to question their detail beyond the evident consistency and substantiality." Id., at 515-516. 11 </s> [439 U.S. 259, 275] </s> We conclude that the requirement imposed by 4-1.2 on illegitimate children who would inherit from their fathers is substantially related to the important state interests the statute [439 U.S. 259, 276] is intended to promote. We therefore find no violation of the Equal Protection Clause. </s> The judgment of the New York Court of Appeals is </s> Affirmed. </s> For the reasons stated in his dissent in Trimble v. Gordon, 430 U.S. 762, 777 (1977), MR. JUSTICE REHNQUIST concurs in the judgment of affirmance. </s> Footnotes [Footnote 1 1965 N. Y. Laws, ch. 958, 1. The statute was initially codified as N. Y. Decedent Est. Law 83-a. In 1966 it was recodified without material change as N. Y. Est., Powers & Trusts Law 4-1.2 (McKinney 1967). 1966 N. Y. Laws, ch. 952. Further nonsubstantive amendments were made the next year. 1967 N. Y. Laws, ch. 686, 28, 29. </s> [Footnote 2 Section 4-1.2 in its entirety provides: </s> "(a) For the purposes of this article: </s> "(1) An illegitimate child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred. </s> "(2) An illegitimate child is the legitimate child of his father so that [439 U.S. 259, 262] he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child. </s> "(3) The existence of an agreement obligating the father to support the illegitimate child does not qualify such child or his issue to inherit from the father in the absence of an order of filiation made as prescribed by subparagraph (2). </s> "(4) A motion for relief from an order of filiation may be made only by the father, and such motion must be made within one year from the entry of such order. </s> "(b) If an illegitimate child dies, his surviving spouse, issue, mother, maternal kindred and father inherit and are entitled to letters of administration as if the decedent were legitimate, provided that the father may inherit or obtain such letters only if an order of filiation has been made in accordance with the provisions of subparagraph (2)." N. Y. Est., Powers & Trusts Law 4-1.2 (McKinney 1967). </s> [Footnote 3 Appellant also claimed that 4-1.2 was invalid under N. Y. Const., Art. 1, 11. The New York Court of Appeals did not rule on this issue, nor do we. We also do not consider whether 4-1.2 unconstitutionally discriminates on the basis of sex or whether the administratrix of Mario's estate is required to account for her alleged failure to bring a wrongful-death action on behalf of appellant. The latter question was not considered by the Court of Appeals, and the former was raised for the first time by a brief amici curiae in this Court. </s> [Footnote 4 On remand from this Court, the New York Attorney General was permitted to intervene as a defendant-appellee. He has filed a brief on the merits and argued the case in this Court. Appellee Rosamond Lalli did not present oral argument and has not filed a brief on the merits. </s> [Footnote 5 Section 4-1.2 requires not only that the order of filiation be made during the lifetime of the father, but that the proceeding in which it is sought be commenced "during the pregnancy of the mother or within two years from the birth of the child." The New York Court of Appeals declined to rule on the constitutionality of the two-year limitation in both of its opinions in this case because appellant concededly had never commenced a paternity proceeding at all. Thus, if the rule that paternity be judicially declared during his father's lifetime were upheld, appellant would lose for failure to comply with that requirement alone. If, on the other hand, appellant prevailed in his argument that his inheritance could not be conditioned on the existence of an order of filiation, the two-year limitation would become irrelevant since the paternity proceeding itself would be unnecessary. See In re Lalli, 43 N. Y. 2d 65, 68 n. 1, 371 N. E. 2d 481, 482 n. 1 (1977); In re Lalli, 38 N. Y. 2d 77, 80 n., 340 N. E. 2d 721, 723 n. (1975). As the New York Court of Appeals has not passed upon the constitutionality of the two-year limitation, that question is not before us. Our decision today therefore sustains 4-1.2 under the Equal Protection Clause only with respect to its requirement that a judicial order of filiation be issued during the lifetime of the father of an illegitimate child. </s> [Footnote 6 The presence in this case of the State's interest in the orderly disposition of a decedent's property at death distinguishes it from others in which that justification for an illegitimacy-based classification was absent. E. g., Jimenez v. Weinberger, 417 U.S. 628 (1974); Gomez v. Perez, 409 U.S. 535 (1973); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170 (1972); Levy v. Louisiana, 391 U.S. 68 (1968). </s> [Footnote 7 The Bennett Commission was created by the New York Legislature in 1961. It was instructed to recommend needed changes in certain areas of state law, including that pertaining to "the descent and distribution of property, and the practice and procedure relating thereto." 1961 N. Y. Laws, ch. 731, 1. </s> [Footnote 8 In affirming the judgment below, we do not, of course, restrict a State's freedom to require proof of paternity by means other than a judicial decree. Thus, a State may prescribe any formal method of proof, whether it be similar to that provided by 4-1.2 or some other regularized procedure that would assure the authenticity of the acknowledgment. As we noted in Trimble, 430 U.S., at 772 n. 14, such a procedure would be sufficient to satisfy the State's interests. See also n. 11, infra. </s> [Footnote 9 Appellant claims that in addition to discriminating between illegitimate and legitimate children, 4-1.2, in conjunction with N. Y. Dom. Rel. Law 24 (McKinney 1977), impermissibly discriminates between classes of illegitimate children. Section 24 provides that a child conceived out of wedlock is nevertheless legitimate if, before or after his birth, his parents marry, even if the marriage is void, illegal, or judicially annulled. Appellant argues that by classifying as "legitimate" children born out of wedlock whose parents later marry, New York has, with respect to these children, substituted marriage for 4-1.2's requirement of proof of paternity. Thus, these "illegitimate" children escape the rigors of the rule unlike their unfortunate counterparts whose parents never marry. </s> Under 24, one claiming to be the legitimate child of a deceased man would have to prove not only his paternity but also his maternity and the fact of the marriage of his parents. These additional evidentiary requirements make it reasonable to accept less exacting proof of paternity and to treat such children as legitimate for inheritance purposes. </s> [Footnote 10 In addition to making intestate succession possible, of course, a father is always free to provide for his illegitimate child by will. See In re Flemm, 85 Misc. 2d 855, 864, 381 N. Y. S. 2d 573, 579 (Surr. Ct. 1975). </s> [Footnote 11 The dissent of MR. JUSTICE BRENNAN would reduce the opinion in Trimble v. Gordon, supra, to a simplistic holding that the Constitution requires a State, in a case of this kind, to recognize as sufficient any "formal acknowledgment of paternity." This reading of Trimble is based on a single phrase lifted from a footnote. 430 U.S., at 772 n. 14. It ignores both the broad rationale of the Court's opinion and the context in [439 U.S. 259, 275] which the note and the phrase relied upon appear. The principle that the footnote elaborates is that the States are free to recognize the problems arising from different forms of proof and to select those forms "carefully tailored to eliminate imprecise and unduly burdensome methods of establishing paternity." Ibid. The New York Legislature, with the benefit of the Bennett Commission's study, exercised this judgment when it considered and rejected the possibility of accepting evidence of paternity less formal than a judicial order. Commission Report 266-267. </s> The "formal acknowledgment" contemplated by Trimble is such as would minimize post-death litigation, i. e., a regularly prescribed, legally recognized method of acknowledging paternity. See n. 8, supra. It is thus plain that footnote in Trimble does not sustain the dissenting opinion. Indeed, the document relied upon by the dissent is not an acknowledgment of paternity at all. It is a simple "Certificate of Consent" that apparently was required at the time by New York for the marriage of a minor. It consists of one sentence: </s> "THIS IS TO CERTIFY that I, who have hereto subscribed my name, do hereby consent that Robert Lalli who is my son and who is under the age of 21 years, shall be united in marriage to Janice Bivins by any minister of the gospel or other person authorized by law to solemnize marriages." App. A-14. </s> Mario Lalli's signature to this document was acknowledged by a notary public, but the certificate contains no oath or affirmation as to the truth of its contents. The notary did no more than confirm the identity of Lalli. Because the certificate was executed for the purpose of giving consent to marry, not of proving biological paternity, the meaning of the words "my son" is ambiguous. One can readily imagine that had Robert Lalli's half-brother, who was not Mario's son but who took the surname Lalli and lived as a member of his household, sought permission to marry, Mario might also have referred to him as "my son" on a consent certificate. </s> The important state interests of safeguarding the accurate and orderly disposition of property at death, emphasized in Trimble and reiterated in our opinion today, could be frustrated easily if there were a constitutional rule that any notarized but unsworn statement identifying an individual as a "child" must be accepted as adequate proof of paternity regardless of the context in which the statement was made. </s> MR. JUSTICE STEWART, concurring. </s> It seems to me that MR. JUSTICE POWELL'S opinion convincingly demonstrates the significant differences between the New York law at issue here and the Illinois law at issue in Trimble v. Gordon, 430 U.S. 762 . Therefore, I cannot agree with the view expressed in MR. JUSTICE BLACKMUN'S opinion concurring in the judgment that Trimble v. Gordon is now "a derelict." or with the implication that in deciding the two cases the way it has this Court has failed to give authoritative guidance to the courts and legislatures of the several States. </s> MR. JUSTICE BLACKMUN, concurring in the judgment. </s> I agree with the result the Court has reached and concur in its judgment. I also agree with much that has been said in the plurality opinion. My point of departure, of course, is at the plurality's valiant struggle to distinguish, rather than overrule, Trimble v. Gordon, 430 U.S. 762 (1977), decided just the Term before last, and involving a small probate estate (an automobile worth approximately $2,500) and a sad and appealing fact situation. Four Members of the Court, like the Supreme Court of Illinois, found the case "constitutionally indistinguishable from Labine v. Vincent, 401 U.S. 532 (1971)," and were in dissent. Id., at 776, 777. </s> It seems to me that the Court today gratifyingly reverts to the principles set forth in Labine v. Vincent. What Mr. Justice Black said for the Court in Labine applies with equal [439 U.S. 259, 277] force to the present case and, as four of us thought, to the Illinois situation with which Trimble was concerned. </s> I would overrule Trimble, but the Court refrains from doing so on the theory that the result in Trimble is justified because of the peculiarities of the Illinois Probate Act there under consideration. This, of course, is an explanation, but, for me, it is an unconvincing one. I therefore must regard Trimble as a derelict, explainable only because of the overtones of its appealing facts, and offering little precedent for constitutional analysis of State intestate succession laws. If Trimble is not a derelict, the corresponding statutes of other States will be of questionable validity until this Court passes on them, one by one, as being on the Trimble side of the line or the Labine-Lalli side. </s> MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE STEVENS join, dissenting. </s> Trimble v. Gordon, 430 U.S. 762 (1977), declares that the state interest in the accurate and efficient determination of paternity can be adequately served by requiring the illegitimate child to offer into evidence a "formal acknowledgment of paternity." Id., at 772 n. 14. The New York statute is inconsistent with this command. Under the New York scheme, an illegitimate child may inherit intestate only if there has been a judicial finding of paternity during the lifetime of the father. </s> The present case illustrates the injustice of the departure from Trimble worked by today's decision sustaining the New York rule. All interested parties concede that Robert Lalli is the son of Mario Lalli. Mario Lalli supported Robert during his son's youth. Mario Lalli formally acknowledged Robert Lalli as his son. See In re Lalli, 38 N. Y. 2d 77, 79, 340 N. E. 2d 721, 722 (1975). Yet, for want of a judicial order of filiation entered during Mario's lifetime, Robert Lalli is denied his intestate share of his father's estate. [439 U.S. 259, 278] </s> There is no reason to suppose that the injustice of the present case is aberrant. Indeed it is difficult to imagine an instance in which an illegitimate child, acknowledged and voluntarily supported by his father, would ever inherit intestate under the New York scheme. Social welfare agencies, busy as they are with errant fathers, are unlikely to bring paternity proceedings against fathers who support their children. Similarly, children who are acknowledged and supported by their fathers are unlikely to bring paternity proceedings against them. First, they are unlikely to see the need for such adversary proceedings. Second, even if aware of the rule requiring judicial filiation orders, they are likely to fear provoking disharmony by suing their fathers. For the same reasons, mothers of such illegitimates are unlikely to bring proceedings against the fathers. Finally, fathers who do not even bother to make out wills (and thus die intestate) are unlikely to take the time to bring formal filiation proceedings. Thus, as a practical matter, by requiring judicial filiation orders entered during the lifetime of the fathers, the New York statute makes it virtually impossible for acknowledged and freely supported illegitimate children to inherit intestate. </s> Two interests are said to justify this discrimination against illegitimates. First, it is argued, reliance upon mere formal public acknowledgments of paternity would open the door to fraudulent claims of paternity. I cannot accept this argument. I adhere to the view that when "a father has formally acknowledged his child . . . there is no possible difficulty of proof, and no opportunity for fraud or error. This purported interest [in avoiding fraud] . . . can offer no justification for distinguishing between a formally acknowledged illegitimate child and a legitimate one." Labine v. Vincent, 401 U.S. 532, 552 (1971) (BRENNAN, J., dissenting). </s> But even if my confidence in the accuracy of formal public acknowledgments of paternity were unfounded, New York has available less drastic means of screening out fraudulent [439 U.S. 259, 279] claims of paternity. In addition to requiring formal acknowledgments of paternity, New York might require illegitimates to prove paternity by an elevated standard of proof, e. g., clear and convincing evidence, or even beyond a reasonable doubt. Certainly here, where there is no factual dispute as to the relationship between Robert and Mario Lalli, there is no justification for denying Robert Lalli his intestate share. </s> Second, it is argued, the New York statute protects estates from belated claims by unknown illegitimates. I find this justification even more tenuous than the first. Publication notice and a short limitations period in which claims against the estate could be filed could serve the asserted state interest as well as, if not better than, the present scheme. In any event, the fear that unknown illegitimates might assert belated claims hardly justifies cutting off the rights of known illegitimates such as Robert Lalli. I am still of the view that the state interest in the speedy and efficient determination of paternity "is completely served by public acknowledgment of parentage and simply does not apply to the case of acknowledged illegitimate children." Id., at 558 n. 30 (BRENNAN, J., dissenting). </s> I see no reason to retreat from our decision in Trimble v. Gordon. The New York statute on review here, like the Illinois statute in Trimble, excludes "forms of proof which do not compromise the State['s] interests." Trimble v. Gordon, supra, at 772 n. 14. The statute thus discriminates against illegitimates through means not substantially related to the legitimate interests that the statute purports to promote. I would invalidate the statute. </s> [439 U.S. 259, 280]

United States Supreme Court HARRIS v. NEW YORK(1971) No. 206 Argued: December 17, 1970Decided: February 24, 1971 </s> Statement inadmissible against a defendant in the prosecution's case in chief because of lack of the procedural safeguards required by Miranda v. Arizona, 384 U.S. 436 , may, if its trustworthiness satisfies legal standards, be used for impeachment purposes to attack the credibility of defendant's trial testimony. See Walder v. United States, 347 U.S. 62 . Pp. 223-226. </s> 25 N. Y. 2d 175, 250 N. E. 2d 349, affirmed. </s> BURGER, C. J., delivered the opinion of the Court, in which HARLAN, STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J., dissented. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 226. </s> Joel Martin Aurnou argued the cause and filed a brief for petitioner. </s> James J. Duggan argued the cause for respondent. With him on the brief was Carl A. Vergari. </s> Sybil H. Landau argued the cause for the District Attorney of New York County as amicus curiae urging affirmance. With her on the brief were Frank S. Hogan, pro se, and Michael R. Juviler. </s> MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. </s> We granted the writ in this case to consider petitioner's claim that a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution's case in chief under Miranda v. Arizona, 384 U.S. 436 (1966), may not be used to impeach his credibility. </s> The State of New York charged petitioner in a two-count indictment with twice selling heroin to an undercover [401 U.S. 222, 223] police officer. At a subsequent jury trial the officer was the State's chief witness, and he testified as to details of the two sales. A second officer verified collateral details of the sales, and a third offered testimony about the chemical analysis of the heroin. </s> Petitioner took the stand in his own defense. He admitted knowing the undercover police officer but denied a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on January 6 but claimed it was baking powder and part of a scheme to defraud the purchaser. </s> On cross-examination petitioner was asked seriatim whether he had made specified statements to the police immediately following his arrest on January 7 - statements that partially contradicted petitioner's direct testimony at trial. In response to the cross-examination, petitioner testified that he could not remember virtually any of the questions or answers recited by the prosecutor. At the request of petitioner's counsel the written statement from which the prosecutor had read questions and answers in his impeaching process was placed in the record for possible use on appeal; the statement was not shown to the jury. </s> The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be considered only in passing on petitioner's credibility and not as evidence of guilt. In closing summations both counsel argued the substance of the impeaching statements. The jury then found petitioner guilty on the second count of the indictment. 1 The New York Court of Appeals affirmed in a per curiam opinion, 25 N. Y. 2d 175, 250 N. E. 2d 349 (1969). </s> At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, [401 U.S. 222, 224] conceding that they were inadmissible under Miranda v. Arizona, 384 U.S. 436 (1966). The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary. </s> Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. </s> In Walder v. United States, 347 U.S. 62 (1954), the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes. </s> "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment. </s> "[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility." 347 U.S., at 65 . [401 U.S. 222, 225] </s> It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Walder. Petitioner's testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief. </s> Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77 (1969); cf. Dennis v. United States, 384 U.S. 855 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. 2 Had [401 U.S. 222, 226] inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. </s> The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements. </s> Affirmed. </s> MR. JUSTICE BLACK dissents. </s> Footnotes [Footnote 1 No agreement was reached as to the first count. That count was later dropped by the State. </s> [Footnote 2 If, for example, an accused confessed fully to a homicide and led the police to the body of the victim under circumstances making his confession inadmissible, the petitioner would have us allow that accused to take the stand and blandly deny every fact disclosed to the police or discovered as a "fruit" of his confession, free from confrontation with his prior statements and acts. The voluntariness of the confession would, on this thesis, be totally irrelevant. We reject such an extravagant extension of the Constitution. Compare Killough v. United States, 114 U.S. App. D.C. 305, 315 F.2d 241 (1962). </s> MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting. </s> It is conceded that the question-and-answer statement used to impeach petitioner's direct testimony was, under Miranda v. Arizona, 384 U.S. 436 (1966), constitutionally inadmissible as part of the State's direct case against petitioner. I think that the Constitution also denied the State the use of the statement on cross-examination to impeach the credibility of petitioner's testimony given in his own defense. The decision in Walder v. United States, 347 U.S. 62 (1954), is not, as the Court today holds, dispositive to the contrary. Rather, that case supports my conclusion. </s> The State's case against Harris depended upon the jury's belief of the testimony of the undercover agent that petitioner "sold" the officer heroin on January 4 and again on January 6. Petitioner took the stand and flatly denied having sold anything to the officer on January 4. He countered the officer's testimony as to the January 6 sale with testimony that he had sold the officer two glassine bags containing what appeared to be heroin, but that actually the bags contained only baking powder intended to deceive the officer in order to obtain $12. [401 U.S. 222, 227] The statement contradicted petitioner's direct testimony as to the events of both days. The statement's version of the events on January 4 was that the officer had used petitioner as a middleman to buy some heroin from a third person with money furnished by the officer. The version of the events on January 6 was that petitioner had again acted for the officer in buying two bags of heroin from a third person for which petitioner received $12 and a part of the heroin. Thus, it is clear that the statement was used to impeach petitioner's direct testimony not on collateral matters but on matters directly related to the crimes for which he was on trial. 1 </s> Walder v. United States was not a case where tainted evidence was used to impeach an accused's direct testimony on matters directly related to the case against him. In Walder the evidence was used to impeach the accused's testimony on matters collateral to the crime charged. Walder had been indicted in 1950 for purchasing and possessing heroin. When his motion to suppress use of the narcotics as illegally seized was granted, the Government dismissed the prosecution. Two years later Walder was indicted for another narcotics violation completely unrelated to the 1950 one. Testifying in his own defense, he said on direct examination that he had never in his life possessed narcotics. On cross-examination he denied that law enforcement officers had seized narcotics from his home two years earlier. The Government was then permitted to introduce the testimony of one of the officers involved in the 1950 seizure, that when he had raided Walder's home at that time he had seized narcotics there. [401 U.S. 222, 228] The Court held that on facts where "the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics," 347 U.S., at 65 , the exclusionary rule of Weeks v. United States, 232 U.S. 383 (1914), would not extend to bar the Government from rebutting this testimony with evidence, although tainted, that petitioner had in fact possessed narcotics two years before. The Court was careful, however, to distinguish the situation of an accused whose testimony, as in the instant case, was a "denial of complicity in the crimes of which he was charged," that is, where illegally obtained evidence was used to impeach the accused's direct testimony on matters directly related to the case against him. As to that situation, the Court said: </s> "Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." 347 U.S., at 65 . </s> From this recital of facts it is clear that the evidence used for impeachment in Walder was related to the earlier 1950 prosecution and had no direct bearing on "the elements of the case" being tried in 1952. The evidence tended solely to impeach the credibility of the defendant's direct testimony that he had never in his life possessed heroin. But that evidence was completely unrelated to the indictment on trial and did not in any way interfere with his freedom to deny all elements of that case against him. In contrast, here, the evidence used for impeachment, a statement concerning the details of the very sales alleged in the indictment, was directly related to the case against petitioner. [401 U.S. 222, 229] </s> While Walder did not identify the constitutional specifics that guarantee "a defendant the fullest opportunity to meet the accusation against him . . . [and permit him to] be free to deny all the elements of the case against him," in my view Miranda v. Arizona, 384 U.S. 436 (1966), identified the Fifth Amendment's privilege against self-incrimination as one of those specifics. 2 </s> [401 U.S. 222, 230] That privilege has been extended against the States. Malloy v. Hogan, 378 U.S. 1 (1964). It is fulfilled only when an accused is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will," id., at 8 (emphasis added). The choice of whether to testify in one's own defense must therefore be "unfettered," since that choice is an exercise of the constitutional privilege, Griffin v. California, 380 U.S. 609 (1965). Griffin held that comment by the prosecution upon the accused's failure to take the stand or a court instruction that such silence is evidence of guilt is impermissible because it "fetters" that choice - "[i]t cuts down on the privilege by making its assertion costly." Id., at 614. For precisely the same reason the constitutional guarantee forbids the prosecution to use a tainted statement to impeach the accused who takes the stand: The prosecution's use of the tainted statement "cuts down on the privilege by making its assertion costly." Ibid. Thus, the accused is denied an "unfettered" choice when the decision whether to take the stand is burdened by the risk that an illegally obtained prior statement may be introduced to impeach his direct testimony denying complicity in the crime charged against him. 3 We settled this proposition in Miranda where we said: </s> "The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner . . . . [S]tatements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial . . . . These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for [401 U.S. 222, 231] any other statement." 384 U.S., at 476 -477 (emphasis added). </s> This language completely disposes of any distinction between statements used on direct as opposed to cross-examination. 4 "An incriminating statement is as incriminating when used to impeach credibility as it is when used as direct proof of guilt and no constitutional distinction can legitimately be drawn." People v. Kulis, 18 N. Y. 2d 318, 324, 221 N. E. 2d 541, 543 (1966) (dissenting opinion). </s> The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system. The "essential mainstay" of that system, Miranda v. Arizona, 384 U.S., at 460 , is the privilege against self-incrimination, which for [401 U.S. 222, 232] that reason has occupied a central place in our jurisprudence since before the Nation's birth. Moreover, "we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. . . . All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government . . . must accord to the dignity and integrity of its citizens." Ibid. These values are plainly jeopardized if an exception against admission of tainted statements is made for those used for impeachment purposes. Moreover, it is monstrous that courts should aid or abet the law-breaking police officer. It is abiding truth that "[n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U.S. 643, 659 (1961). Thus, even to the extent that Miranda was aimed at deterring police practices in disregard of the Constitution, I fear that today's holding will seriously undermine the achievement of that objective. The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State's direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution. I dissent. </s> [Footnote 1 The trial transcript shows that petitioner testified that he remembered making a statement on January 7; that he remembered a few of the questions and answers; but that he did not "remember giving too many answers." When asked about his bad memory, petitioner, who had testified that he was a heroin addict, stated that "my joints was down and I needed drugs." </s> [Footnote 2 Three of the five judges of the Appellate Division in this case agreed that the State's use of petitioner's illegally obtained statement was an error of constitutional dimension. People v. Harris, 31 App. Div. 2d 828, 298 N. Y. S. 2d 245 (1969). However, one of the three held that the error did not play a meaningful role in the case and was therefore harmless under our decision in Chapman v. California, 386 U.S. 18 (1967). He therefore joined in affirming the conviction with the two judges who were of the view that there was no constitutional question involved. 31 App. Div. 2d, at 830, 298 N. Y. S. 2d, at 249. I disagree that the error was harmless and subscribe to the reasoning of the dissenting judges, id., at 831-832, 298 N. Y. S. 2d at 250: "Under the circumstances outlined above, I cannot agree that this error of constitutional dimension was `harmless beyond a reasonable doubt' (Chapman v. California, 386 U.S. 18, 24 ). An error is not harmless if `there is a reasonable possibility that the evidence complained of might have contributed to the conviction' (Fahy v. Connecticut, 375 U.S. 85, 86 -87). The burden of showing that a constitutional error is harmless rests with the People who, in this case, have not even attempted to assume that demonstration (Chapman v. California, supra). Surely it cannot be said with any certainty that the improper use of defendant's statement did not tip the scales against him, especially when his conviction rests on the testimony of the same undercover agent whose testimony was apparently less than convincing on the January 4 charge (cf. Anderson v. Nelson, 390 U.S. 523, 525 ). On the contrary, it is difficult to see how defendant could not have been damaged severely by use of the inconsistent statement in a case which, in the final analysis, pitted his word against the officer's. The judgment should be reversed and a new trial granted." The Court of Appeals affirmed per curiam on the authority of its earlier opinion in People v. Kulis, 18 N. Y. 2d 318, 221 N. E. 2d 541 (1966). Chief Judge Fuld and Judge Keating dissented in Kulis on the ground that Miranda precluded use of the statement for impeachment purposes, 18 N. Y. 2d, at 323, 221 N. E. 2d, at 542. </s> [Footnote 3 It is therefore unnecessary for me to consider petitioner's argument that Miranda has overruled the narrow exception of Walder admitting impeaching evidence on collateral matters. </s> [Footnote 4 Six federal courts of appeals and appellate courts of 14 States have reached the same result. United States v. Fox, 403 F.2d 97 (CA2 1968); United States v. Pinto, 394 F.2d 470 (CA3 1968); Breedlove v. Beto, 404 F.2d 1019 (CA5 1968); Groshart v. United States, 392 F.2d 172 (CA9 1968); Blair v. United States, 130 U.S. App. D.C. 322, 401 F.2d 387 (1968); Wheeler v. United States, 382 F.2d 998 (CA10 1967); People v. Barry, 237 Cal. App. 2d 154, 46 Cal. Rptr. 727 (1965), cert. denied, 386 U.S. 1024 (1967); Velarde v. People, 171 Colo. 261, 466 P.2d 919 (1970); State v. Galasso, 217 So.2d 326 (Fla. 1968); People v. Luna, 37 Ill. 2d 299, 226 N. E. 2d 586 (1967); Franklin v. State, 6 Md. App. 572, 252 A. 2d 487 (1969); People v. Wilson, 20 Mich. App. 410, 174 N. W. 2d 79 (1969); State v. Turnbow, 67 N. M. 241, 354 P.2d 533 (1960); State v. Catrett, 276 N.C. 86, 171 S. E. 2d 398 (1970); State v. Brewton, 247 Ore. 241, 422 P.2d 581, cert. denied, 387 U.S. 943 (1967); Commonwealth v. Padgett, 428 Pa. 229, 237 A. 2d 209 (1968); Spann v. State, 448 S. W. 2d 128 (Tex. Cr. App. 1969); Cardwell v. Commonwealth, 209 Va. 412, 164 S. E. 2d 699 (1968); Gaertner v. State, 35 Wis. 2d 159, 150 N. W. 2d 370 (1967); see also Kelly v. King, 196 So.2d 525 (Miss. 1967). Only three state appellate courts have agreed with New York. State v. Kimbrough, 109 N. J. Super. 57, 262 A. 2d 232 (1970); State v. Butler, 19 Ohio St. 2d 55, 249 N. E. 2d 818 (1969); State v. Grant, 77 Wash. 2d 47, 459 P.2d 639 (1969). </s> [401 U.S. 222, 233]

United States Supreme Court COOPER v. PATE(1964) No. 1134 Argued: Decided: June 22, 1964 </s> Certiorari granted and judgment reversed. </s> Reported below: 324 F.2d 165. </s> Alex Elson and Bernard Weisberg for petitioner. </s> William G. Clark, Attorney General of Illinois, and Raymond S. Sarnow and Edward A. Berman, Assistant Attorneys General, for respondent. </s> PER CURIAM. </s> The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. </s> The petitioner, an inmate at the Illinois State Penitentiary, brought an action under 28 U.S.C. 1343 and 42 U.S.C. 1983, 1979 of the Revised Statutes, alleging that solely because of his religious beliefs he was denied permission to purchase certain religious publications and denied other privileges enjoyed by other prisoners. The District Court granted the respondent's motion to dismiss for failure to state a claim on which relief could be granted and the Court of Appeals affirmed. 324 F.2d 165 (C. A. 7th Cir.). We reverse the judgment below. Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action and it was error to dismiss it. See Pierce v. LaVallee, 293 F.2d 233 (C. A. 2d Cir.); Sewell v. Pegelow, 291 F.2d 196 (C. A. 4th Cir.). </s> [378 U.S. 546, 547]