MAHO).'EY LrBRARY DiscA~T)pD AP!; I q 1)6 APR j 9 “ cUÜS UNITED STATES REPORTS VOLUME 401 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1970 February 19 Through April 5, 1971 Togethek With Opinions of Individual Justices in Chambers HENRY PUTZEL, jr. REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1971 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price $8.00 (Buckram) Erratum 396 U. S. 835, No. 311, line 4: “113” should be “133.” ii 7/ JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. HUGO L. BLACK, Associate Justice. WILLIAM O. DOUGLAS, Associate Justice. JOHN M. HARLAN, Associate Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. POTTER STEWART, Associate Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. RETIRED EARL WARREN, Chief Justice. STANLEY REED, Associate Justice. TOM C. CLARK, Associate Justice. OFFICERS OF THE COURT JOHN N. MITCHELL, Attorney General. ERWIN N. GRISWOLD, Solicitor General. E. ROBERT SEAVER, Clerk. HENRY PUTZEL, jr., Reporter of Decisions. T. PERRY LIPPITT, Marshal. HENRY CHARLES HALLAM, Jr., Librarian. m SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the folio wing allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, viz.: For the District of Columbia Circuit, Warren E. Burger, Chief Justice. For the First Circuit, William J. Brennan, Jr., Associate Justice. For the Second Circuit, John M. Harlan, Associate Justice. For the Third Circuit, William J. Brennan, Jr., Associate Justice. For the Fourth Circuit, Warren E. Burger, Chief Justice. For the Fifth Circuit, Hugo L. Black, Associate Justice. For the Sixth Circuit, Potter Stewart, Associate Justice. For the Seventh Circuit, Thurgood Marshall, Associate Justice. For the Eighth Circuit, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, William O. Douglas, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. June 9, 1970. (For next previous allotment, see 396 U. S., p. iv.) IV TRIBUTE TO CHIEF JUSTICE WARREN (RETIREE) Suprême Court of the United States MONDAY, MARCH 2 2, 1971 Présent: Mr. Chief Justice Burger, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun. The Chief Justice said: Before we hear arguments in the first case today I hâve a pleasant task, if it can be called that. This is the near-est sitting of the Court to Friday, the 19th of March, and that was an important day because it marked the 80th birthday of the very distinguished former Chief Justice of the United States, Earl Warren. This is another milestone in his great career of public service which extends over a period of more than a half century. Chief Justice Warren presided over this Court for a few months short of 16 years and in one of the most important periods in the history of the Court and the country. I know that I speak for every one of my colleagues on the bench and for Mr. Justice Reed and Mr. Justice Clark, retired, when I say for the record, and to you, Sir, Chief Justice Warren, that we wish you the best of everything in the years ahead and many, many more years of the vigorous good health which you hâve always enjoyed and our very best wishes to you and to Mrs. Warren on the occasion of your 80th birthday. TABLE OF CASES BEPOBTED Note: Ail undesignated references herein to the United States Code are to the 1964 édition. Cases reported before page 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 901 et seq. are those in which orders were entered. Opinions reported on page 1201 et seq. are those written in chambers by individual Justices. Page Abbett, Sommer & Co. v. SEC................................. 974 ABC Books, Inc. v. Benson................................... 988 Abrams; Steelworkers v..................................... 1009 Acel Delivery Service; Pacific Indemnity Co. v.............. 955 Acme Highway Products Corp.; D. S. Brown Co. v............. 956 Acting Secretary of Interior; Mescalero Apache Tribe v..... 981 Adams v. Illinois........................................... 953 Adams Potato Chips v. Labor Board........................... 975 Adjustment Corp.; McPeak v............................. 919,1015 Adler Construction Co. v. United States..................... 949 Aetna Casualty & Surety Co.; Berry v....................... 1005 Affeldt; Whitcomb v......................................... 971 Aiken v. Georgia............................................ 982 Akers v. United States...................................... 950 Akin v. United States...................................... 1011 Alabama; Eddins v........................................... 957 Alabama Secretary of State; Hadnott v....................... 968 Alameda County District Attorney; Arnold v.................. 917 Alexander v. Louisiana...................................... 936 Alexander v. Pacific Maritime Assn......................... 1009 Alexander v. Swank.......................................... 906 Allen; Embry v.............................................. 989 Allen; Texas & Pacific R. Co. v............................. 910 Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass.. 907 Allied Electrical Supply; Sterner Lighting, Inc. v.......... 909 Altman v. Stockton.......................................... 994 Alvarez v. United States.................................... 913 Amabile v. United States.................................... 924 Amalgamated. For labor union, see name of trade. VII VIII TABLE OF CASES REPORTEE Page American Art Industries v. Labor Board...................... 912 American Contract Bridge League; Bridge Corp. v............. 940 American Fédération of Employées v. Goldberg............... 1008 American Harley Corp.; Irvin Industries v................... 976 American Mail Line; Howard v................................ 963 American National Bank & Trust Co.; Burton v................ 928 American Pipe & Construction Co. v. Maricopa County....... 937 American Radiator & Stand. Sanitary Corp. v. United States.. 948 Amos; Engelman v............................................ 903 Amos; Hadnott v............................................. 968 Amos v. Mississippi......................................... 942 Anchor Coupling Co. v. United States........................ 908 Anderson; Fanale v.......................................... 915 Anderson v. New York.................................... 902 Anderson v. Secretary of Treasury......................... 969 Anderson v. Singletary................................... 917 Angle v. Laird....................................... 918 Antonson v. Virginia A. B. C. Board....................... 995 Apache County; Atchison, T. & S. F. R. Co. v............... 1005 Appalachian Volunteers, Inc. v. Clark....................... 939 Appling v. Ohio ............................................ 977 Argersinger v. Hamlin....................................... 908 Arizona; Foggy v............................................ 944 Arizona; Mahoney v.......................................... 917 Arizona State Bar; Baird v................................... 1 Arkansas; Blanton v........................................ 1003 Armco Steel Corp. v. Schutte................................ 910 Arnold v. Coakley........................................... 917 Arnold; Delano, Inc. v...................................... 994 Arnold v. Smithwick......................................... 921 Arquilla v. United States................................... 920 Ashbrook v. United States................................... 938 Askew v. Hargrave........................................... 476 Association. For labor union, see name of trade. Atchison, T. & S. F. R. Co. v. Apache County............... 1005 Atchley; Procunier v........................................ 966 Attorney General; Christopher v............................. 902 Attorney General; New Orléans Book Mart v............... 968 Attorney General; Ray v..................................... 902 Attorney General; Texas v................................... 903 Attorney General of California v. Gilmore................... 906 Attorney General of Florida; Fuentes v...................... 906 Attorney General of Illinois ; Doe v........................ 969 TABLE OF CASES REPORTED IX Page Attorney General of Indiana v. Hartke....................... 972 Attorney General of lowa v. Wilhelm......................... 947 Attorney General of New Jersey v.,Karp...................... 930 Atwell v. Retail Crédit Co................................. 1009 Auer v. Wayne State University.............................. 920 Auld v. Terminal Railroad Assn. of St. Louis................ 940 Austin v. U. S. District Court.............................. 991 Avery; Sewell v............................................. 918 Babcock & Wilcox Co.; Foster Wheeler Corp. v................ 938 Baines v. Birmingham........................................ 923 Baird; Eisenstadt v......................................... 934 Baird v. State Bar of Arizona................................. 1 Baker v. Georgia........................................... 1012 Baker v. Pennsylvania....................................... 902 Baker Mfg. Co. v. Whitewater Mfg. Co........................ 956 Baie v. Parsons............................................. 986 Baldwin v. Yeager........................................... 919 Ballerina Pen Co.; National Industries for the Blind v.... 950 Ballon v. General Electric Co.............................. 1009 Bankers Life & Casualty Co.; Supt. of Ins. of N. Y. v..... 973 Banks; Board of Public Instruction of Dade County v....... 988 Barash v. United States..................................... 938 Barefield v. New Mexico..................................... 959 Barlow v. Gallant........................................... 986 Barnard v. California....................................... 901 Bartlett v. United States................................... 986 Barzie v. United States..................................... 975 Bass v. Texas Power & Light Co.............................. 975 Bass; United States v....................................... 993 Bâtes v. Maryland........................................... 959 Battaglia v. Civil Service Comm’n........................... 978 Battaglia v. United States.................................. 924 Bauer Dredging Co.; Stelly v................................ 908 Baxter, Inc. v. Coca-Cola Co........................... 923,1014 Beasley v. Kansas........................................... 919 Beaudry v. Vargo............................................ 909 Beckman Instruments; Technical Development Corp. v........ 976 Beech Aircraft Corp.; Fontana Aviation, Inc. v.............. 923 Belcher; Richardson v....................................... 935 Bell v. Burson.............................................. 971 Bellei; Rogers v............................................ 815 Bellew v. Swenson.......................................... 1002 Bennett v. Virgin Islands................................... 957 X TABLE OF CASES REPORTEE Page Benoit v. United States.................................... 1011 Benson; ABC Books, Inc. v................................... 988 Bentley v. United States.................................... 920 Berger v. United States..................................... 962 Bernier v. Maine............................................ 968 Berrier v. United States.................................... 966 Berry v. Aetna Casualty & Surety Co........................ 1005 Berry v. Illinois........................................... 959 Bessesen v. United States.................................. 1009 Beto; Childress v........................................... 957 Beto; Delespine v......................................... 1004 Beto; Huffman v............................................ 946 Beto v. King................................................ 936 Beto; Malone v............................................ 1012 Beto; Moody v.............................................. 943 Better Business Bureau of Los Angeles; Kramer v.......... 993 Billy Baxter, Inc. v. Coca-Cola Co..................... 923,1014 Birmingham; Baines v........................................ 923 Bissell; O’Shaughnessy v.................................... 915 Bivens v. United States..................................... 944 Black Hawk Corp.; Industrial Union Dept. v.................. 911 Blackwell; Singal v......................................... 922 Blalock v. North Carolina................................... 912 Blanchard; Brewer v........................................ 1002 Blanchard v. United States.................................. 959 Bland v. United States...................................... 912 Blanton v. Arkansas........................................ 1003 Blonder-Tongue Labs. v. University of 111. Foundation..... 932 Bloom; Smith v............................................. 1014 Blount; Charles v........................................... 909 Blue v. United States....................................... 921 Blumstein; Ellington v...................................... 934 Board of Education of Little Rock School District v. Clark.. 971 Board of Education of Netcong v. State Bd. of Education.... 1013 Board of Education of School District 89; York v............ 954 Board of Election Comm’rs of Chicago; Fitzpatrick v....... 905 Board of Elections of Rhode Island; Malinou v............... 986 Board of Managers of Chicago Bar Assn.; Sarelas v......... 963 Board of Public Instruction of Dade County v. Banks....... 988 Board of Regents of Univ. of Tex. v. New Left Project..... 935 Board of Trustées of Social Security Fund v. Farrell...... 976 Boat Transit, Inc. v. United States......................... 928 Boddie v. Connecticut....................................... 371 TABLE OF CASES REPORTEE xi Page Boddie; Wyman v............................................ 990 Boehme v. Harrison......................................... 959 Boiardo v. New Jersey.................................... 948 Boilermakers v. Hardeman................................. 233 Bondholders Protective Com. v. 3%% Bondholders Com....... 938 Bongiorno v. Moseley....................................... 919 Bonner v. Pâte............................................. 915 Bookwalter; M. F. A. Central Cooperative v................ 1007 Borden, Inc. v. Ice Cream Drivers.......................... 940 Borelli v. United States................................... 946 Borg-Warner Corp. v. United States......................... 948 Boston School Committee; Fenton v.......................... 929 Botica v. Brantley......................................... 979 Bowles v. United States.................................... 995 Boyle v. Landry............................................. 77 Braden v. Hocklander...................................... 1011 Brandom v. United States................................ 942 Brantley; Botica v........................................ 979 Brantley; Ferree v........................................ 920 Brantley; Walker v................................... 942,1015 Braswell Motor Freight Lines v. Teamsters.................. 937 Braxton v. Maryland........................................ 917 Breakefield v. District of Columbia...................... 909 Brewer v. Blanchard....................................... 1002 Brewer v. Cox.............................................. 994 Brewster; United States v.................................. 935 Briddle v. United States................................... 921 Bridge Corp. v. American Contract Bridge League............ 940 Brierley; Fletcher v................................... 926,945 Brierley; Wardrop v........................................ 957 Brierley; Williams v....................................... 945 Briscoe v. United States................................... 926 Britt v. North Carolina.................................... 973 Brookins v. United States.................................. 912 Brotherhood. For labor union, see name of trade. Brown, In re............................................... 942 Brown v. Fallis............................................ 985 Brown v. Florida........................................... 941 Brown; Lash v.............................................. 948 Brown v. LaVallee.......................................... 942 Brown; Perkins v........................................... 944 Brown v. Smith............................................. 915 Brown v. United States..................................... 966 XII TABLE OF CASES REPORTEE Page Brown Co. v. Acme Highway Products Corp....................... 956 Bryant v. Maryland....................................... 917,1015 Buchanan v. Michigan.......................................... 944 Buchanan v. Wade.............................................. 989 Buchanan; Wade v.............................................. 989 Buckley v. Johnson............................................ 970 Buckley v. Labor Board....................................... 1002 Bujese v. United States....................................... 978 Bukacek v. Pell City Farms.................................... 910 Bukowski v. United States..................................... 911 Burnett v. United States..................................... 1010 Burris v. United States....................................... 921 Burson; Bell v................................................ 971 Burtman v. United States...................................... 966 Burton v. American National Bank & Trust Co................... 928 Butler v. Illinois............................................ 941 Butler; Southern Pacific Transportation Co. v................. 975 Butler v. United States....................................... 978 Butts v. United States....................................... 1010 Byrd v. Fitzharris............................................ 945 Byrne v. Karalexis............................................ 216 Byrne v. P. B. I. C., Inc..................................... 987 Cadogan v. LaVallee........................................... 914 Cady; Humphrey v.............................................. 973 Caldrone v. Kansas............................................ 916 California; Barnard v....................................... 901 California; Carter v.......................................... 914 California; Earley v........................................ 943 California; Ford v............................................ 969 California; Garcia v.......................................... 914 California; Gardner v......................................... 905 California; Gilkey v........................................ 924 California; Haffke v....................................... 1014 California; Harrell v........................................ 914 California; Hegarty v......................................... 901 California; Hill v........................................... 797 California; Hoag v........................................... 1012 California; Magezis v......................................... 983 California; Manning v......................................... 918 California; Meeks v........................................... 944 California; Mickey v.......................................... 963 California; Miller v.......................................... 992 California; Price v........................................... 979 TABLE OF CASES REPORTEE XIII Page California; Quinn v.............................................. 969 California; Rogers v........................................... 926 California; Rucker v........................................... 924 California; Schneider v........................................ 929 California; Smith v.............................................. 957 California; Spigner v.......................................... 914 California; Strong v........................................... 980 California; Stuller v.......................................... 977 California; Szijarto v......................................... 905 California; Tasse v............................................ 942 California; Taylor v........................................... 972 California; Vital v............................................ 980 California; Ward v............................................. 917 California; Williams v......................................... 919 California Adult Authority; Schlette v....................... 1012 California Attorney General v. Gilmore........................ 906 California Dept. of Human Resources v. Java................. 903,932 California Superior Court; Curtin v............................ 1013 California Superior Court; Halde v.............................. 974 Camp; Investment Co. Institute v................................ 617 Camp; Sterling National Bank of Davie v......................... 925 Campbell v. Georgia............................................ 1002 Campbell v. Lewis............................................... 985 Campbell v. Michigan............................................ 945 Campos-Serrano ; United States v.................... 936,990 Candis O. Ray Agency v. Fédéral Com. Comm’n..................... 940 Candis O. Ray Agency v. Golden Ox Restaurant.................... 927 Candis O. Ray Agency v. Kansas City Stockyards Co........... 927 Cantrell v. U. S. District Court......................... 918 Cardwell; Mitchell v............................................ 994 Cardwell; Walker v.............................................. 943 Cardwell v. Woodards............................................ 911 Carlson; Norman v............................................... 972 Carr v. United States....................................... 920,1011 Carrillo v. Wyoming............................................. 921 Carroll v. Fay.................................................. 906 Carter v. California............................................ 914 Carter v. Hartenstein........................................... 901 Casscles; Logan v............................................... 950 Casscles; Pacheco v............................................. 918 Casson v. United States......................................... 919 Castle; Zenith Radio Corp. y................................. 953 Cataldo v. United States........................................ 977 XIV TABLE OF CASES REPORTED Page Catena v. New Jersey Comm’n of Investigation................. 952 Catherwood; Hernandez v...................................... 986 Cato v. Georgia.............................................. 984 Caulder; Housing Authority of Durham v..................... 1003 Central Baptist Church of Miami; Diffenderfer v.............. 934 Central Distributors, Inc.; Nellis v......................... 912 Central Machine & Tool Co. v. Labor Board.................... 909 Central National Bank of Jacksonville ; Cohen v.............. 913 Central R. Co. Bonds v. 3^% Bondholders Com.................. 938 Chahoc v. Hunt Shipyard.................................... 982 Chapman v. United States.................................. 950 Charles v. Blount........................................... 909 Charles Sales Corp. v. Hodgskin............................. 956 Checker Records; Peacock Records v........................... 975 Chenango Court, Inc.; McGuane v.............................. 994 Chesapeake & Ohio R. Co.; Koserkoff v........................ 947 Chicago; Mayer v............................................. 906 Chicago Bar Assn. Board of Managers; Sarelas v............... 963 Chicago Board of Election Comm’rs; Fitzpatrick v............. 905 Chicago Bridge & Iron Co.; Wheatley v........................ 910 Chicago Housing Authority v. Gautreaux....................... 953 Chief Judge, U. S. Court of Appeals; Fennell v............... 906 Chief Judge, U. S. District Court; Zenith Radio Corp. v.... 953 Childress v. Beto............................................ 957 Childs v. Oregon............................................. 1006 Chipley, In re............................................... 1010 Christopher v. E. I. du Pont de Nemours & Co................. 967 Christopher v. Mitchell...................................... 902 Ciccone; Niemeyer v......................................... 1011 Cinnamon v. Kentucky.......................................... 941 Citizens Casualty Co. of N. Y.; S. Felicione Fish Co. v.... 939 Citizens Casualty Co. of N. Y. v. Stewart.................... 910 Citizens to Preserve Overton Park v. Volpe.................... 402 City. See also name of city. City Rent and Réhabilitation Adm. of N. Y.; Davenport v.. 956 Civil Service Comm’n; Battaglia v............................ 978 Clark; Appalachian Volunteers, Inc. v........................ 939 Clark; Board of Education of Little Rock School District v.. 971 Clark v. New Jersey.......................................... 958 Clark County School District; Harrison v..................... 950 Clarke v. Neil............................................... 941 Claunch v. Page.............................................. 957 Clemons v. United States..................................... 945 Clothing Workers v. Prepmore Apparel......................... 993 TABLE OF CASES REPORTEE xv Page Coakley; Arnold v........................................ 917 Coakley v. Perini........................................ 972 Cobb v. Railroad Retirement Board........................ 946 Coca-Cola Co.; Billy Baxter, Inc. v................. 923,1014 Cohen v. Central National Bank of Jacksonville........... 913 Coiner; Washington v..................................... 915 Cole v. Mancusi.......................................... 957 Collections Unlimited; Garfias v......................... 941 Collins v. United States................................. 957 Colson v. Morton......................................... 911 Commandant, U. S. Disciplinary Barracks; Relford v..... 355 Commanding General, Fort Jackson; Dash v................. 981 Commanding Officer, Ft. Hamilton; Galasso v.............. 952 Commercial Securities Co.; Wilson v...................... 913 Commissioner; Meyers v.................................. 957 Commissioner ; Mitchell v................................ 909 Commissioner; Tollefsen v............................... 908 Commissioner; Waterman Steamship Corp. v................ 939 Commissioner of Agriculture of Georgia v. Lewis.......... 985 Commissioner of Air Pollution Control; Oriental Blvd. v.... 986 Commissioner of Education of Rhode Island v. DiCenso... 931 Commissioner of Environmental Conserv.; Reptile Products v. 969 Commissioner of Finance of V. I. v. Chicago Bridge Co.. 910 Commissioner of Internai Revenue. See Commissioner. Commissioner of Public Welfare; Jefferson v.............. 991 Commissioner of Revenue of Tenn.; ABC Books, Inc. v.... 988 Commissioner of Social Services of New York v. Boddie.. 990 Commonwealth. See name of Commonwealth. Compton v. United States................................ 1014 Comptroller of the Currency; Investment Co. Institute v.... 617 Comptroller of the Currency; Sterling Nat. Bank of Davie v. 925 Comptroller of the Treasury of Maryland; Foley v......... 977 Conklin v. Wainwright.................................... 943 Connecticut; Boddie v.................................... 371 Connecticut Secretary of State; Ruscito v............... 1009 Conolon Corp. v. Labor Board................. 908 Conte; Standley v........................................ 979 Continental Oil Co.; The Electra v....................... 937 Cook v. United States.................................... 996 Cookmeyer v. Louisiana Dept. of Highways................. 980 Cooper v. United States.............................. 942,977 Cordle v. Moynahan....................................... 995 Cordle v. United States.............................. 917,945 Coronado v. United States................................ 957 XVI TABLE OF CASES REPORTED Page Corrections Commissioner. See name of commissioner. Corrigan; French v......................................... 915 Costello v. New Jersey..................................... 936 County. See name of county. Court of Appeals. See U. S. Court of Appeals. Cox; Brewer v.............................................. 994 Cox v. McLaren............................................ 1012 Cox; Riddick v............................................. 916 Cox Enterprises; Southland Inc. v.......................... 993 C & P Coal Co.; Mine Workers v............................. 486 Craft v. United States............................... 957 Cranston; Duncan v......................................... 949 Craven; Howard v..................................... 983 Craven; Lindsey v..................................... 913 Craven; Mueller v..................................... 979 Craven; Sailer v......................................... 944 Craven; Shipp v.......................................... 919 Craven; Williams v....................................... 918 Craven; Wimberley v................................. 915,1015 Crawford v. New York....................................... 921 Crespo v. LaVallee......................................... 918 Crouse; Daegele v......................................... 950 Cummings v. Toledo........................................ 903 Cunningham v. Mancusi..................................... 979 Curry v. Sher............................................. 948 Curtin v. Superior Court of California.................... 1013 Curtis v. New York......................................... 918 Curtis v. United States............................... 915,1004 Dade County Board of Public Instruction v. Banks.......... 988 Daegele v. Crouse.......................................... 950 Daggett; Tate v............................................ 958 Daggett; Theriault v....................................... 983 Dallas Chief of Police v. Stein............................ 200 Dallas County District Attorney v. Buchanan................ 989 Dallas County District Attorney; Buchanan v................ 989 Dallas County Sheriff; McDaniel v.................... 941 Dalto v. Richardson........................................ 979 Damron; Ocala Star-Banner Co. v............................ 295 Daniell v. United States................................... 982 Darby v. New Jersey........................................ 980 Darden v. Pennsylvania.................................... 1004 Dash v. Commanding General, Fort Jackson................... 981 Davenport v. City Rent and Réhabilitation Adm. of N. Y.... 956 Davis v. News.............................................. 994 TABLE OF CASES REPORTEE xvn Page Davis v. Washington.......................................... 943 Dayton School Board; Maranze v.......................... 916,1015 DeAngelis v. United States................................... 976 DeBose v. United States...................................... 920 Decker v. Harper & Row Publishers............................ 950 De la Motte v. United States................................. 921 Delano, Inc. v. Arnold....................................... 994 Delespine v. Beto........................................... 1004 Delgado v. Zelkes............................................ 959 Delph v. Ohio................................................ 945 Demich, Inc.; Ferdon v....................................... 999 Department of Public Aid of Illinois; Alexander v.......... 906 Department of Public Aid of Illinois; Townsend v........... 906 Department of Public Safety of Georgia Director; Bell v.... 971 DePugh v. United States...................................... 978 DeSapio v. United States.................................... 1008 Desonia v. United States................................... 981 DeVal Aerodynamics, Inc. v. Eulo............................. 974 Dewey v. Reynolds Metals Co.................................. 932 Dexter v. Indiana............................................ 984 D. H. Overmyer Co. of Ohio v. Frick Co...................... 992 Diamond; Reptile Products Assn. v............................ 969 DiBartolo v. United States................................... 993 DiCenso; Earley v........................................ 931 DiCenso; Robinson v...................................... 931 Diffenderfer v. Central Baptist Church of Miami.............. 934 Diggs v. Mooney.............................................. 94g Di Giamberardino v. New Jersey............................... 981 Di Giangiemo v. New York..................................... 981 Dillon v. Idaho.............................................. 942 Dillon; Stambler v........................................... gg3 Dippolito v. United States................................... 940 Director of Bureau of Prisons; Norman v...................... 972 Director of Internai Revenue. See Commissioner ; District Director of Internai Revenue. Director of penal or correctional institution. See name of director. Director of Public Safety of Georgia; Bell v................. 971 Distillery Workers v. Farrell................................ 97g District Attorney of Alameda County; Arnold v................ 917 District Attorney of Dallas County v. Buchanan............... 989 District Attorney of Dallas County; Buchanan v............... 989 District Attorney of Los Angeles County v. Harris............. 37 District Attorney of Los Angeles County; Tape Industries v.. 902 415-649 0 - 72 -2 XVIII TABLE OF CASES REPORTED Page District Attorney of Queens County; Fernandez v........... 66 District Attorney of Queens County; Samuels v.............. 66 District Attorney of Suffolk County v. Karalexis........... 216 District Attorney of Suffolk County v. P. B. I. C., Inc... 987 District Attorney of Tulsa County; Brown v................. 985 District Council 51 v. Goldberg........................... 1008 District Court. See U. S. District Court. District Court in and for Eagle County; United States v.... 520 District Court in and for Water Div. No. 5; United States v.. 527 District Court of Montgomery County; Wright v............. 1011 District Director of Internai Revenue; M. F. A. Coop. v.... 1007 District Judge. See U. S. District Judge. District of Columbia; Breakefield v........................ 909 Dixilyn Corp.; Sellers v................................... 980 Dobbs Houses, Inc. v. Sanders.............................. 948 Doe v. Scott............................................... 969 Donofrio v. United States.................................. 970 Donovan v. United States................................... 944 Dooner v. Kings Park State Hospital Director.............. 1011 Dorfman Co. v. Thomas Wilson & Co.......................... 977 Douglas v. Louisiana....................................... 914 Dowdy v. Thomsen............................................. 972 Dowell v. Salisbury........................................ 959 Drebus; Guzick v............................................. 948 Dreyfus Fund, Inc.; Kauffman v............................... 974 D. S. Brown Co. v. Acme Highway Products Corp.............. 956 Duke Power Co.; Griggs v..................................... 424 Duncan v. Cranston........................................... 949 Du Pont de Nemours & Co.; Christopher v.................... 967 Durham v. United States...................................... 481 Durham Housing Authority v. Caulder....................... 1003 Dyches v. Ryan............................................... 988 Dyson v. Stein............................................... 200 Eagle County District Court; United States v................. 520 Earley v. California......................................... 943 Earley v. DiCenso............................................ 931 East Brooklyn Savings Bank; Metropolitan Sav. & Loan v.. 954 Eastern Orthodox Churches of Greater Detroit ; Smith v.... 929 East Windsor Municipal Utilities Authority; Shapiro v..... 1010 Eaton v. United States..................................... 995 Eckels v. Ross............................................. 933 Eddins v. Alabama.......................................... 957 Edgewater Inn v. King County............................... 911 Edlin v. Richardson........................................ 920 TABLE OF CASES REPORTEE XIX Page E. I. du Pont de Nemours & Co.; Christopher v............... 967 Eisenstadt v. Baird......................................... 934 Electra, The v. Continental Oil Co.......................... 937 Electronic Industries Assn. v. United States................ 967 El-Ge Potato Chip Co. v. Labor Board........................ 909 Elkanich v. United States................................... 646 Ellenbogen; Oliver v........................................ 944 Ellington v. Blumstein...................................... 934 Ellis v. Oklahoma.......................................... 1010 Elman v. United States..................................... 958 Embry v. Allen.............................................. 989 Emerson Electric Co.; Reliance Electric Co. v.............. 1008 Emmons v. Taylor........................................... 1010 Engelman v. Amos............................................ 903 Epling v. M. T. Epling Co................................... 963 Epling Co.; Epling v........................................ 963 Epps v. United States...................................... 1006 Ericksen v. United States............................... 933,978 Erickson; Johnson v......................................... 948 Erickson; Locke v........................................... 948 Escobar v. Ohio............................................. 946 Estate. See name of estate. Ethridge v. United States................................... 926 Eulo; EeVal Aerodynamics, Inc. v............................ 974 Evans v. United States................................. 924,1014 E. V. Williams Co. v. Labor Board.......................... 937 Executor of Estate of Smythe; Masters v..................... 969 Eyman; Hunt v............................................... 995 Fahrig v. Young............................................. 979 Fair v. Kirk................................................ 928 Fairchild v. United States.................................. 901 Faircloth; Fuentes v........................................ 906 Falgout v. Patterson........................................ 983 Fallis; Brown v............................................. 935 Fanale v. Anderson.......................................... 915 Fannon v. United States.................................... 1012 Farkas v. Texas Instruments, Inc............................ 974 Farmers Union Co-Operative Business Assn. v. Labor Board.. 955 Farrell; Distillery Workers v............................... 976 Fassler v. United States................................... 1011 Faustino v. Immigration and Naturalization Service......... 921 Fay; Carroll v.............................................. 906 Fédéral Com. Comm’n; Candis O. Ray Agency v................. 940 Fédéral Com. Comm’n; Ray v.................................. 940 Fédéral Maritime Comm’n; Port of New York Authority v.. 909 XX TABLE OF CASES REPORTED Page Fédéral Maritime Comm’n; States Marine Lines v.............. 967 Fédéral Power Comm’n v. Florida Power & Light Co............ 907 Fédéral Power Comm’n; Otter Tail Power Co. v................. 947 Fédéral Trade Comm’n v. Sperry & Hutchinson Co.............. 992 Fehlhaber v. San Francisco Unified School District.......... 1012 Fein v. Follette............................................... 954 Fein v. Sélective Service Local Board No. 7.................. 953 Felicione & Sons Fish Co. v. Citizens Cas. Co. of N. Y...... 939 Fennell v. Mathes.............................................. 906 Fenton v. School Committee of Boston........................... 929 Ferdon v. Demich, Inc.......................................... 990 Ferguson v. Ohio............................................... 955 Fernandez v. Mackell.......................................... 66 Ferree v. Brantley............................................. 920 Fiadini v. United States....................................... 993 Fidelity & Cas. Co. of N. Y.; First National Bk. of Chicago v. 912 Field; Grady v.............................................. 979 Field; McClindon v........................................ 972 Field; Riley v.............................................. 922 Fields Productions, Inc. v. United Artists Corp............. 949 Figueroa de Arroyo; Puerto Rico Téléphoné Co. v.............. 926 Finney v. Wainwright......................................... 962 Firestone Tire & Rubber Co. v. General Tire & Rubber Co.. 975 First American Life Insurance Co.; Garner v.................. 974 First National Bk. of Chicago v. Fidelity & Cas. Co. of N. Y.. 912 First National Bk. of Cornelia v. Jackson.................... 947 First National Bk. of Cushing; Security Mutual Cas. Co. v.. 975 Fisher; New York Central R. Co. v............................ 975 Fitzharris; Byrd v........................................... 945 Fitzpatrick v. Board of Election Comm’rs of Chicago......... 905 Flask ; Grove Press v........................................ 932 Fletcher v. Brierley..................................... 926,945 Florida; Brown v............................................. 941 Florida; Galtieri v.......................................... 954 Florida; Lacey v............................................. 958 Florida; Parkin v............................................ 974 Florida; Shorter v........................................... 977 Florida; Vandygrift v........................................ 939 Florida Attorney General; Fuentes v.......................... 906 Florida Governor; Fair v..................................... 928 Florida Governor v. Hargrave................................. 476 Florida Industrial Comm’n; Szot v........................... 1009 Florida Judicial Qualifications Comm’n; Kelly v.............. 962 Florida Power & Light Co.; Fédéral Power Comm’n v........... 907 TABLE OF CASES REPORTED xxi Florida State Board of Dentistry v. Mack.................... 960 Florida State Board of Dentistry ; Mack v................... 954 Floyd County Supt. of Schools; Appalachian Volunteers v... 939 Foggy v. Arizona............................................ 944 Foley v. Comptroller of the Treasury of Maryland............ 977 Follette; Fein v............................................ 954 Follette; Ridgill v......................................... 920 Follette; Sabella v......................................... 920 Fontana Aviation, Inc. v. Beech Aircraft Corp............... 923 Fontenot v. Unit Crâne & Shovel Corp...................... 936 Forbes v. Wainwright........................................ 995 Ford v. California.......................................... 969 Ford v. Wisconsin Real Estate Examining Board............... 993 Fort Hamilton Commanding Officer; Galasso v.............. 952 Fort Howard Paper Co. v. Scott Paper Co..................... 913 Fort Jackson Commanding General; Dash v..................... 981 Foster Wheeler Corp. v. Babcock & Wilcox Co................. 938 Fraser v. United States................................... 916 Freed; United States v.................................... 601 French v. Corrigan........................................ 915 Frey v. United States...................................... 911 Frias v. Nelson............................................ 1008 Frick Co.; D. H. Overmyer Co. of Ohio v..................... 992 Frink v. New York........................................... 941 Fristoe v. United States.................................... 918 Frost v. United States...................................... 916 Fuentes v. Faircloth........................................ 906 Fuentes v. United States.................................... 919 Furgison v. lowa....................................... 994,1004 Gaffney; Knight v.......................................... 1012 Gaffney; McCarty v.......................................... 945 Galasso v. Commanding Officer, Ft. Hamilton................. 952 Gallant; Barlow v........................................... 986 Galtieri v. Florida......................................... 954 Garcia v. California........................................ 914 Gardner v. California....................................... 995 Gardner v. Shearson, Hammill & Co........................... 978 Gardner Flying Service; Rogers v........................... 1010 Garelle v. United States.................................... 967 Garfias v. Collections Unlimited............................ 941 Garfield & Co. v. Wiest..................................... 949 Garner v. First American Life Insurance Co.................. 974 Garza; Smith v............................................. 1099 Gautreaux; Chicago Housing Authority v...................... 953 XXII TABLE OF CASES REPORTEE Page Gayles; Ohlendorf v.................................... 929,1015 Gearing v. United States.................................... 980 Gehring; Maras v............................................ 946 Geiger v. Jenkins........................................... 985 Geiger v. McBee............................................ 1011 General Electric Co.; Ballon v............................. 1009 General Tire & Rubber Co.; Firestone Tire & Rubber Co. v.. 975 Générés; United States v.................................... 972 Georgia; Aiken v............................................ 982 Georgia; Baker v........................................... 1012 Georgia; Campbell v..................................... 1002 Georgia; Cato v............................................. 984 Georgia; Massey v........................................... 964 Georgia; Norman v........................................... 956 Georgia; Sanks v............................................ 144 Georgia Comm’r of Agriculture v. Lewis.................... 985 Georgia Director of Public Safety; Bell v................... 971 Georgia Supt. of Banks; First National Bank v............... 947 Geyer Broadcasting Co. v. Hôlder............................ 937 Gibbs v. United States...................................... 994 Gideon v. United States................................... 947 Giglio v. United States................................... 936 Gilboy v. United States................................... 950 Gilhousen v. Nelson......................................... 916 Gilkey v. California........................................ 924 Gillette v. United States................................... 437 Gilligan; Socialist Labor Party v........................... 991 Gilligan v. Sweetenham...................................... 991 Gilmore; Lynch v............................................ 906 Ginter v. Wilson............................................ 915 Glass v. United States...................................... 959 Glasshofer v. Rundle........................................ 944 Goetluck v. United States.................................. 1011 Goldberg; District Council 51 v............................ 1008 Golden Ox Restaurant; Ray v................................. 927 Gomez v. United States...................................... 995 Gomori v. Perini............................................ 945 Goodman v. Wheeler.......................................... 987 Goodyear Tire & Rubber Co.; Johnson v....................... 926 Governor. See name of State. G. P. D., Inc. v. Labor Board.............................. 974 Grady v. Field.............................................. 979 Gray v. United States Lines............................... 916 Gray; Williams v............................................ 906 TABLE OF CASES REPORTED XXIII Green v. Kentucky.......................................... 950 Greene v. United States.................................... 984 Greenville Shipbuilding Corp.; Russell v................... 923 Gregory v. Tarr............................................ 990 Grieco v. United States................................... 1009 Griggs v. Duke Power Co.................................... 424 Grohman v. Maryland........................................ 982 Grove Press v. Flask....................................... 932 Grove Press v. Maryland Board of Censors................... 480 Gruca v. Secretary of Army................................. 978 Grumman Allied Industries v. Labor Board................... 954 Gunthorpe v. New Mexico.................................... 941 Guy v. United States....................................... 972 Guzick v. Drebus........................................... 948 Haagensen; Hansen v.................................... 912 1015 Hackin v. Pioneer Plumbing Supply Co....................... 910 Hackin Plumbing & Heating Co. v. Pioneer Plumbing Co.... 910 Hackney; Jefferson v....................................... 991 Hadley v. Smith............................................ 915 Hadnott v. Amos............................................ 908 Haffke v. California...................................... 1014 Hahn v. Smith.............................................. 920 Haifley v. United States................................... 981 Haimowitz; Pope v.......................................... 930 Haines v. Kerner....................................... 954 iqqs Halde v. Superior Court of California.................... ’ 974 Halley v. United States............................ 905 916 1004 Hamilton v. United States................................ ’ 913 Hamlin; Argersinger v........................................ 908 Hankins v. Tennessee......................................... 937 Hansen v. Haagensen.................................... 912 1015 Hardeman; Boilermakers v..................................... 233 Hargrave; Askew v............................................. 47 0 Harkey v. Illinois........................................... 947 Harper v. United States...................................... 950 Harper & Row Publishers; Decker v............................ 95O Harrell v. California........................................ 914 Harrington v. United States.................................. 995 Harris v. Houston.......................................... 92p Harris v. New York......................................... 222 Harris v. Tennessee........................................ 97g Harris; Younger v........................................... 37 Harrison; Boehme v......................................... 95g Harrison v. Clark County School District..................... 950 XXIV TABLE OF CASES REPORTED Page Hartenstein; Carter v.................................... 901 Hartenstein Elevator Co.; Carter v........................ 901 Hartke; Roudebush v....................................... 972 Hartke; Sendak v.......................................... 972 Hawaii v. Standard Oil Co. of California.................. 936 Hawaii Lieutenant Governor; Hayes v....................... 968 Hawkins v. Smith.......................................... 950 Hayes v. Lieutenant Governor of Hawaii.................... 968 Haywood v. Merrill........................................ 952 Haywood v. National Basketball Assn...................... 1204 Haywood v. United States.................................. 922 Hazeltine Research, Inc.; Zenith Radio Corp. v....... 321,1015 Hegarty v. California..................................... 901 Held v. United States................................. 948,1010 Heller; Oriental Boulevard Co. v.......................... 986 Henderson v. Michigan..................................... 942 Hernandez v. Catherwood................................... 986 Hernley v. Pennsylvania................................... 914 Herpich v. Wilder......................................... 947 Hester v. Wyche........................................... 974 Hickman v. New Jersey..................................... 995 Higdon v. United States.................................. 1011 Hill v. California........................................ 797 Hilliker v. United States................................. 958 Hindman; Morse v.......................................... 928 Hing Wan Wong v. Liquor Control Comm’n.................... 938 Hoag v. California....................................... 1012 Hocklander; Braden v..................................... 1011 Hodgskin; Charles Sales Corp. v........................... 956 Hogan v. Mississippi...................................... 977 Hogg v. United States..................................... 910 Hohensee v. Scientific Living, Inc........................ 959 Hôlder; Geyer Broadcasting Co. v.......................... 937 Holstein v. United States................................. 993 Honeybrook Mines, Inc.; Thomas v.......................... 911 Hood v. Tennessee......................................... 972 Hopkins v. United States................................. 1013 Horn; McGee v............................................. 976 Hornstein; Richeson v..................................... 994 Horvath v. United States.................................. 937 Hosey v. Jackson.......................................... 987 Hosmer v. United States................................... 978 Houp v. Nebraska.......................................... 924 Household Finance Corp.; Lynch v.......................... 935 Housing Authority of Durham v. Caulder................... 1003 TABLE OF CASES REPORTEE XXV Page Houston; Harris v............................................... 920 Howard v. American Mail Line.............................. 963 Howard v. Craven................................................ 983 Howard; Stokes v................................................ 959 Howard v. United States......................................... 918 Howell v. Ohio.................................................. 945 Hoyt; Rafter v................................................. 1008 H. S. Hackin Plumbing & Heating Co. v. Pioneer Plumb. Co. 910 Hubbard v. United States....................................... 1010 Hudson Transit Lines v. Labor Board............................. 911 Huff v. Illinois................................................ 914 Huffman v. Beto................................................. 946 Hughes; Passaic County Bar Assn. v........................... 1003 Humble Oil & Refining Co.; Patterson v.......................... 922 Humble Oil & Refining Co. v. Sun Oil Co........................ 1003 Humphrey v. Cady................................................ 973 Hunt v. Eyman................................................... 905 Hunter v. Locher................................................ 980 Huntington National Bank of Columbus v. Kosydar............... 1005 Hunt Shipyard; Chahoc v......................................... 982 Hunt Tool Co.; Chahoc v......................................... 982 Ice Cream Drivers; Borden, Inc. v........................... 940 Idaho; Dillon v................................................. 942 Idaho; Norton v............................................. 936 Illinois; Adams v............................................. 953 Illinois; Berry v.............................................. 959 Illinois; Butler v............................................. 941 Illinois; Harkey v.............................................. 947 Illinois; Huff v.............................................. 914 Illinois; Koshiol v............................................. 978 Illinois; LaBatt v.............................................. 963 Illinois; Masterson v........................................... 915 Illinois; Quinley v............................................. 958 Illinois; Roy v................................................. 949 Illinois; Scott v............................................... 958 Illinois; Somerville v......................................... 1007 Illinois; Stokes v.............................................. 94g Illinois; Tate v................................................ 94I Illinois; Triplett v............................................ 955 Illinois Attorney General; Doe v................................ 969 Illinois Central R. Co.; Rodicker v............................. 949 Illinois Crime Investigating Comm’n; Sarno v.................... 935 Illinois Dept. of Public Aid; Alexander v....................... 906 Illinois Dept. of Public Aid v. Rodriguez....................... 990 XXVI TABLE OF CASES REPORTED Page Illinois Dept, of Public Aid; Townsend v...................... 906 Illinois Governor; Jackson v.............................. 904,952 Immigration and Naturalization Service; Faustino v.......... 921 Immigration and Naturalization Service; Rodriguez-Romero v. 976 Immigration and Naturalization Service; Thomaidis v......... 954 Indiana; Dexter v............................................. 984 Indiana; Jackson v............................................. 973 Indiana; Moore v.............................................. 984 Indiana; Vasquez v........................................... 1012 Indiana Attorney General v. Hartke............................. 972 Indiana Governor v. Affeldt.................................... 971 Industrial Union Dept. v. Black Hawk Corp..................... 911 Ingham County Sheriff ; Rutledge v.......................... 915 Inman v. U. S. District Court................................. 916 In re. See name of party. Internai Revenue Service. See Commissioner; District Di- rector of Internai Revenue. International. For labor union, see name of trade. International Minerais & Chemical Corp.; United States v... 971 Inyestment Co. Institute v. Camp........................... 617 lowa; Furgison v......................................... 994,1004 lowa; Nelson v................................................ 923 lowa; Ricehill v.............................................. 942 lowa Attorney General v. Wilhelm........................... 947 Irving J. Dorfman Co. v. Thomas Wilson & Co................... 977 Irvin Industries v. American Harley Corp...................... 976 Irvis; Moose Lodge No. 107 v.................................. 992 ISI Corp. v. Myers............................................ 912 Israël v. The Nili............................................ 994 Jack Neilson, Inc. v. Tug Peggy............................... 955 Jackson; First National Bank of Cornelia v.................. 947 Jackson; Hosey v.............................................. 987 Jackson v. Indiana............................................ 973 Jackson; McGrew v............................................. 987 Jackson v. Ogilvie........................................ 904,952 Jackson v. Patterson.......................................... 923 Jackson Farmers, Inc. v. Labor Board.......................... 955 Jacobs v. United States....................................... 924 James v. Wainwright........................................... 972 James v. Zelker............................................... 979 Java; California Dept. of Human Resources v............... 903,932 Jefferson v. Hackney.......................................... 991 Jenkins; Geiger v............................................. 985 Jenkins v. New Jersey......................................... 916 TABLE OF CASES REPORTED XXVII Page Johnnie Reb’s Book & Card Shop v. Slaton.................. 985 Johnson; Buckley v........................................ 970 Johnson v. Erickson....................................... 948 Johnson v. Goodyear Tire & Rubber Co...................... 926 Johnson; Kazubowski v..................................... 972 Johnson v. Marston........................................ 968 Johnson; Mulligan v....................................... 959 Johnson v. New York....................................... 966 Johnson; Taylor v......................................... 995 Johnson v. Twomey......................................... 916 Johnson v. United States.................................. 846 Johnston Bronze Co.; Wood v............................... 976 Jones v. Kentucky......................................... 946 Jones; Lee Way Motor Freight v............................ 954 Jones v. Ohio............................................. 919 Jones v. Patuxent Institution Director.................... 979 Jones v. Sullivan......................................... 977 Jones v. United States....................... 924,926,995,1014 Joseph v. Louisiana....................................... 914 Joseph v. United States................................... 918 Kansas; Beasley v......................................... 919 Kansas; Caldrone v........................................ 916 Kansas City Stockyards Co. of Maine; Ray v................ 927 Kapatos v. United States.................................. 909 Karalexis; Byrne v........................................ 216 Karp; Kugler v............................................ 930 Karr v. Schmidt...................................... 930,1201 Kauffman v. Dreyfus Fund, Inc............................. 974 Kazubowski v. Johnson..................................... 972 Kelley; Lisker v.......................................... 928 Kelley v. United States................................... 905 Kellwood Co. v. Labor Board.............................. 1009 Kelly v. Florida Judicial Qualifications Comm’n........... 962 Kelly v. United States.................................... 921 Kennedy; Richardson v..................................... 901 Kennedy v. Wyoming........................................ 939 Kennedy Park Homes Assn.; Lackawanna v................... 1010 Kentucky; Cinnamon v...................................... 941 Kentucky; Green v......................................... 950 Kentucky; Jones v......................................... 946 Kerner; Haines v..................................... 954,1008 Kimbro v. Russell......................................... 918 Kimzey; Porter v.......................................... 985 King; Beto v.............................................. 936 King v. United States................................. 922,962 XXVIII TABLE OF CASES REPORTED Page King County; Edgewater Inn v................................ 911 King County; Pier 67, Inc. v................................ 911 Kings County Distributing Co. v. Meister Brau, Inc........ 939 Kings Park State Hospital Director; Dooner v............... 1011 Kirk; Fair v................................................ 928 Kitchens v. Smith........................................... 847 Klatex, Inc. v. Mouton...................................... 968 Klein; Wolfish v............................................ 940 Knight v. Gaffney.......................................... 1012 Koen v. Long................................................ 923 Kohler Co. v. United States................................. 948 Kopec v. New Jersey......................................... 958 Koresko v. United States................................... 1012 Koserkoff v. Chesapeake & Ohio R. Co........................ 947 Koshiol v. Illinois......................................... 978 Kosydar; Huntington National Bank of Columbus v........... 1005 Kramer v. Better Business Bureau of Los Angeles............. 993 Kugler v. Karp.............................................. 930 Kurtzman; Lemon v........................................... 931 Kyriaco v. United States.................................... 922 LaBatt v. Illinois.......................................... 963 Labine v. Vincent........................................... 532 Labor Board; Adams Potato Chips v........................... 975 Labor Board; American Art Industries v...................... 912 Labor Board; Buckley v..................................... 1002 Labor Board; Central Machine & Tool Co. v................... 909 Labor Board; Conolon Corp. v................................ 908 Labor Board; El-Ge Potato Chip Co. v........................ 909 Labor Board; E. V. Williams Co. v........................... 937 Labor Board; Farmers Union Co-Operative Bus. Assn. v.... 955 Labor Board; G. P. D., Inc. v............................... 974 Labor Board ; Grumman Allied Industries v................... 954 Labor Board; Hudson Transit Lines v....................... 911 Labor Board; Jackson Farmers, Inc. v...................... 955 Labor Board; Kellwood Co. v................................ 1009 Labor Board; Magnésium Casting Co. v.................... 137 Labor Board; Moran Oil Producing & Drilling Corp. v..... 941 Labor Board; Oison Bodies, Inc. v........................... 954 Labor Board; Operating Engineers v.......................... 976 Labor Board v. Pittsburgh Plate Glass Co.................... 907 Labor Board v. Plasterers’ Union No. 79................. 973,991 Labor Board; Ralph Printing & Lithographing Co. v......... 925 Labor Board; Rod Rie Corp. v................................ 937 Labor Board; Southwire Co. v................................ 939 Labor Board; Tri-Service Drilling Co. v..................... 940 TABLE OF CASES REPORTEE XXIX Page Labor Board; United Aircraft Corp. v.................. 933,993 Labor Union. See name of trade. Lacey v. Florida.......................................... 958 Lackawanna v. Kennedy Park Homes Assn.................... 1010 Lagerquist v. South Carolina.............................. 937 Laird; Angle v............................................ 918 Landry; Boyle v............................................ 77 Lang v. Tennessee......................................... 923 LaPlaca v. New York....................................... 941 Larsen; Negre v........................................... 437 Lash v. Brown............................................. 948 Lassere v. Texas.......................................... 920 LaVallee; Brown v......................................... 942 LaVallee; Cadogan v....................................... 914 LaVallee; Crespo v........................................ 918 LaVallee; White v......................................... 922 Law; Victory Carriers, Inc. v............................. 936 Lawrence v. Russell....................................... 920 Law Students Civil Rights Research Council v. Wadmond.... 154 Lazarus; Shevin v......................................... 987 Leano v. United States.................................... 977 LeClair v. O’Neil......................................... 984 Ledesma; Perez v........................................... 82 Leeper v. Michigan........................................ 956 Lee Way Motor Freight v. Jones............................ 954 Lego v. Twomey............................................ 992 Lemon v. Kurtzman......................................... 931 Lenit v. Powers........................................... 975 Lennox; Swarb v.......................................... 991 Leon Nunley Coal Co. v. Mine Workers...................... 302 Levering v. Levering...................................... 976 Levine v. United States................................... 949 Levy v. United States..................................... 962 Lewis; Campbell v......................................... 985 Lewis v. Licavoli......................................... 913 Lewis v. Robinson......................................... 926 Lewis v. United States.................................... 917 Libert; Turzynski v....................................... 975 Licavoli; Lewis v......................................... 913 Lieutenant Governor of Hawaii; Hayes v.................... 968 Lindsey v. Craven......................................... 913 Lipscomb v. United States................................. 980 Liquor Control Comm’n; Hing Wan Wong v.................... 938 Lisker v. Kelley.......................................... 928 XXX TABLE OF CASES REPORTED Page Little Rock School District Board of Education v. Clark. ... 971 Local. For labor union, see name of trade. Locher; Hun ter v.......................................... 980 Locke v. Erickson.......................................... 948 Logan v. Casscles.......................................... 950 Lomax v. United States..................................... 995 Long; Koen v............................................... 923 Los Angeles; Los Angeles Free Press v...................... 982 Los Angeles County District Attorney v. Harris.............. 37 Los Angeles County District Attorney; Tape Industries v... 902 Los Angeles County Superior Court; Washington v............ 956 Los Angeles Free Press v. Los Angeles...................... 982 Louisiana; Alexander v.................................... 936 Louisiana; Douglas v...................................... 914 Louisiana; Joseph v....................................... 914 Louisiana; Shirley v...................................... 926 Louisiana Dept. of Highways; Cookmeyer v................... 980 Louisiana Polytechnic Institute; Pratz v.............. 951,1004 Love v. Pullman Co......................................... 907 Lowery v. United States.................................... 978 Lowther v. Salisbury....................................... 977 Lucakos v. United States................................... 977 Lucas v. United States................................. 977,984 Luckenbach Overseas Corp.; Usner v........................ 1015 Lynch v. Gilmore........................................... 906 Lynch v. Household Finance Corp............................ 935 Mac. See also Mc. MacFarlane v. United States................................ 939 Machin v. Pinto............................................ 919 Mack v. Florida State Board of Dentistry................... 954 Mack; Florida State Board of Dentistry v................... 960 Mackell; Fernandez v........................................ 66 Mackell; Samuels v.......................................... 66 Mackey v. United States.................................... 667 Magar v. Maryland.......................................... 951 Magezis v. California...................................... 983 Magnésium Casting Co. v. Labor Board....................... 137 Mahoney v. Arizona......................................... 917 Maine; Bemier v............................................ 968 Maker v. Wisconsin........................................ 1013 Malinou v. Board of Elections of Rhode Island.............. 986 Malinsky v. United States.................................. 940 Malkerson; Stams v......................................... 985 Malone v. Beto............................................ 1012 Mance v. Nelson............................................ 913 TABLE OF CASES REPORTEE XXXI Mancusi; Cole v........................................... 957 Mancusi; Cunningham v..................................... 979 Mancusi v. Martinez....................................... 9§3 Mancusi; Sadowy v......................................... 957 Mancusi; Stevenson v...................................... 980 Mancusi; Vaughn v......................................... 917 Manning v. California..................................... 918 Maranze v. Dayton School Board....................... 916,1015 Maras v. Gehring.......................................... 94g Marcello v. United States................................ 1003 Maricopa County; American Pipe & Construction Co. v.... 937 Maricopa County; Martin-Marietta Corp. v................ 937 Maricopa County; United Concrète Pipe Corp. v........... 937 Marion; United States v................................... 934 Marston; Johnson v........................................ 908 Martinez; Mancusi v....................................... 983 Martinez v. New York...................................... 941 Martinez v. United States................................. 959 Martin-Marietta Corp. v. Maricopa County.................. 937 Maryland; Bâtes v......................................... 959 Maryland; Braxton v....................................... 947 Maryland; Bryant v................................... 917 1015 Maryland; Grohman v.................................. ’ g82 Maryland; Magar v......................................... 951 Maryland; McCray v........................................ 97! Maryland; Miller v.................................... ' 943 Maryland; Owings v........................................ 937 Maryland; Tull v...................................... ’ g58 Maryland; Wilkens v....................................... 943 Maryland Board of Censors; Grove Press v 480 Maryland Comptroller of the Treasury; Foley v §77 Massey v. Georgia.................................... ’ 904 Masters v. Executor of Estate of Smythe 959 Masterson v. Illinois................................... g15 Mathes; Fennell v......................................... gQg Mayer v. Chicago.......................................... qqq Mayfield v. Virginia..................................... 1002 Mayor of Rutherford; Ring v............................... gjj Mc. See also Mac. McBee; Geiger v........................................... 10n McCarty v. Gaffney................................... ” g45 McClary v. New Jersey......................................g80 McClindon v. Field................................... ' g72 McCray v. Maryland................................... " q7l XXXII TABLE OF CASES REPORTED Page McDaniel v. Sheriff of Dallas County..................... 941 McDowell v. United States................................ 943 McFadden; United States v............................... 1006 McGee v. Horn............................................ 976 McGee v. United States............................... 942,970 McGrew v. Jackson........................................ 987 McGuane v. Chenango Court, Inc........................... 994 McKenzie v. Texas........................................ 903 McKinney v. Patuxent Institution Director................ 958 McKinney v. United States................................ 922 McKuin v. United States.................................. 911 McLaren; Cox v.......................................... 1012 McMahan v. States Steamship Co......................... 956 McNair; Williams v....................................... 951 McNeil v. North Carolina................................. 962 McPeak v. Adjustment Corp........................... 919,1015 McPherson v. Walker...................................... 908 Meadows v. New York...................................... 941 Meadows v. U. S. Marshal................................ 1014 Meagher v. Pennsylvania.................................. 993 Medical Committee for Human Rights ; SEC v............... 973 Meeks v. California...................................... 944 Megliorino v. Nelson..................................... 914 Meister Brau, Inc.; Kings County Distributing Co. v..... 939 Meister Brau, Inc.; Ricchetti v.......................... 939 Melzer v. Ohio........................................... 956 Mendoza v. United States................................. 943 Mensik v. United States.................................. 962 Mercado v. Superior Court of Puerto Rico................ 1003 Mercantile National Bank of Chicago; Quest, Inc. v...... 956 Merrill; Haywood v....................................... 952 Mescalero Apache Tribe v. Russell........................ 981 Metropolitan Realty Corp., In re......................... 1008 Metropolitan Savings Bank; Metropolitan Sav. & Loan v.... 954 Metropolitan Savings & Loan v. East Brooklyn Sav. Bank... 954 Meyers v. Commissioner................................... 957 M. F. A. Central Cooperative v. Bookwalter.............. 1007 Miami University; Militana v............................. 962 Michigan; Buchanan v................................... 944 Michigan; Campbell v................................... 945 Michigan; Henderson v.................................... 942 Michigan; Leeper v....................................... 956 Michigan; Sabow v....................................... 1010 Michigan State Bar; Transportation Union v............... 576 Mickey v. California..................................... 953 TABLE OF CASES REPORTEE XXXIII Page Militana v. University of Miami........................... 962 Millard v. Omaha.......................................... 951 Miller v. California...................................... 992 Miller v. Maryland........................................ 943 Miller v. Pâte............................................ 924 Mills v. United States.................................... 925 Mines v. United States................................... 1011 Mine Workers v. C & P Coal Co............................. 486 Mine Workers; Leon Nunley Coal Co. v...................... 302 Mine Workers v. Railing................................... 486 Mine Workers; Ramsey v.................................... 302 Minkel v. Minnesota....................................... 979 Minnesota; Minkel v....................................... 979 Minnesota; Radil v........................................ 921 Minnesota Mining & Mfg. Co. v. Norton Co............. 925,1014 Mississippi; Amos v....................................... 942 Mississippi; Hogan v...................................... 977 Mississippi; Tarrants v................................... 920 Mississippi; Wright v..................................... 929 Mississippi Chemical Corp.; United States v............... 908 Mitchell v. Cardwell...................................... 994 Mitchell; Christopher v................................... 902 Mitchell v. Commissioner.................................. 909 Mitchell; New Orléans Book Mart v......................... 968 Mitchell; Texas v......................................... 993 Mitchell v. United States................................. 910 Moga; Sanfira v........................................... 949 Monitor Patriot Co. v. Roy................................ 265 Montagna v. United States................................. 967 Monteiro v. United States................................. 978 Montero v. United States.................................. 922 Montgomery; Wright v...................................... 939 Montgomery County District Court; Wright v............... 1011 Moody v. Beto............................................. 943 Mooney; Diggs v........................................... 949 Moore v. Indiana.......................................... 934 Moore v. United States................................... 1013 Moose Lodge No. 107 v. Irvis.............................. 992 Moran Oil Producing & Drilling Corp. v. Labor Board..... 941 Morgan v. Null............................................ 947 Morrison v. United States................................. 945 Morse v. Hindman.......................................... 923 Morton; Colson v.......................................... 911 Morton; Sierra Club v..................................... 997 415-649 0 - 72 -3 XXXIV TABLE OF CASES REPORTED Page Moseley; Bongiorno v........................................ 919 Mouton; Klatex, Inc. v...................................... 968 Moynahan; Cordle v.......................................... 995 M. T. Epling Co.; Epling v.................................. 963 Mueller v. Craven........................................... 979 Mulligan v. Johnson......................................... 959 Musil v. Pâte............................................... 914 Myers; ISI Corp. v.......................................... 912 Myers; Pacific National Bank of San Francisco v............. 912 Myers; Security Pacific National Bank v..................... 912 Nagelberg v. United States.................................. 939 Napolitano, In re........................................... 951 Nasse v. United States...................................... 938 National Assn. of Securities Dealers v. SEC................. 617 National Basketball Assn.; Haywood v...................... 1204 National Director of Sélective Service System; Gregory v.... 990 National Industries for the Blind v. Ballerina Pen Co...... 950 National Labor Relations Board. See Labor Board. National Life & Accident Insurance Co. v. Notter............ 969 National Screen Service Corp. v. Poster Exchange....... 912,1015 Neal v. United States.................................... 957 979 Nebraska; Houp v........................................ 924 Negre v. Larsen............................................. 437 Neil; Clarke v............................................. 941 Neil; Pernell v............................................. 995 Neil; Williams v......................................... 927 934 Neilson, Inc. v. Tug Peggy.................................... 955 Nellis v. Central Distributors, Inc........................... 912 Nelson; Frias v............................................ 1008 Nelson; Gilhousen v........................................... 916 Nelson v. lowa................................................ 923 Nelson; Mance v............................................. 913 Nelson; Megliorino v.......................................... 914 Nelson; Thompson v............................................ 943 Nelson v. West Virginia....................................... 977 Nelson v. Zelker.............................................. 917 Netcong Board of Education v. State Board of Education.... 1013 Neuman v. United States....................................... 974 Nevada; Van Sickle v.......................................... 910 New Jersey; Boiardo v......................................... 943 New Jersey; Clark v....................................... 95g New Jersey; Costello v.................................... 936 New Jersey; Darby v....................................... 980 New Jersey; Di Giamberardino v............................ 981 TABLE OF CASES REPORTED XXXV Page New Jersey; Hickman v................................... 995 New Jersey; Jenkins v.................................... 916 New Jersey; Kopec v...................................... 958 New Jersey; McClary v................................... 980 New Jersey; Salvi v...................................... 980 New Jersey; Victor v..................................... 981 New Jersey Attorney General v. Karp........................ 930 New Jersey Comm’n of Investigation; Catena v............... 952 New Jersey Comm’n of Investigation; Zicarelli v.......... 933,952 New Jersey Governor; Passaic County Bar Assn. v.......... 1003 New Left Education Project; Board of Regents v............. 935 New Mexico; Barefield v.................................... 959 New Mexico; Gunthorpe v.................................... 941 New Orléans Book Mart v. Mitchell.......................... 968 News; Davis v.............................................. 994 Newton v. United States.................................... 944 New York; Anderson v.................................. 902 New York; Crawford v.................................. 921 New York; Curtis v...................................... 918 New York; Di Giangiemo v................................ 981 New York; Frink v....................................... 941 New York; Harris v...................................... 222 New York; Johnson v..................................... 966 New York; LaPlaca v..................................... 941 New York; Martinez v.................................... 941 New York; Meadows v..................................... 941 New York; Pennsylvania v................................ 931 New York; Radich v...................................... 531 New York; Robles v...................................... 945 New York; Romano v......................................... 913 New York; Wallace v........................................ 919 New York Central R. Co. v. Fisher........................ 975 New York City Rent and Rehab. Adm.; Davenport v......... 956 New York Comm’r of Social Services v. Boddie............... 990 New York State Teachers’ Ret. Sys.; 21 Turtle Creek Sq. v.. 955 New York Stock Exchange v. Thill Securities Corp........... 994 New York Supt. of Ins. v. Bankers Life & Casualty Co..... 973 New York Supt. of Ins.; Citizens Casualty Co. v............ 910 Nicklos Drilling Co. v. Unit Crâne & Shovel Corp........... 936 Niemeyer v. Ciccone....................................... 1011 Nili, The; Israël v.......................................... 994 Nolynn Assn. of Baptist in Christ v. Oak Grove Church.... 955 Noonan v. United States...................................... 981 Norman v. Carlson............................................ 972 XXXVI TABLE OF CASES REPORTED Page Norman v. Georgia......................................... 956 Northampton County; Tilli v............................. 978 North Carolina; Blalock v............................... 912 North Carolina; Britt v.................................. 973 North Carolina; McNeil v............................... 962 North Carolina; Petway v............................... 959 North Carolina v. Rice................................... 1008 North Carolina; Sealey v................................ 1012 North Carolina; Vaughn v............................... 914 Norton v. Idaho........................................... 936 Norton Co.; Minnesota Mining & Mfg. Co. v............. 925,1014 Norvell; Pulley v......................................... 916 Notter; National Life & Accident Insurance Co. v.......... 969 Null; Morgan v............................................ 947 Nunley Coal Co. v. Mine Workers......................... 302 Oak Grove Separate Baptist Church; Nolynn Assn. v........ 955 Ocala Star-Banner Co. v. Damron........................... 295 O’Connor v. United States................................. 911 Ogilvie; Jackson v.................................... 904,952 O’Hair v. Paine........................................... 955 Ohio; Appling v.......................................... 977 Ohio; Delph v............................................ 945 Ohio; Escobar v.......................................... 946 Ohio; Ferguson v......................................... 955 Ohio; Howell v........................................... 945 Ohio; Jones v............................................. 919 Ohio; Melzer v............................................ 956 Ohio; Rembert v........................................... 921 Ohio ; Stanley v.......................................... 903 Ohio; Ward v.............................................. 980 Ohio v. Wyandotte Chemicals Corp.......................... 493 Ohio Governor; Socialist Labor Party v.................... 991 Ohio Governor v. Sweetenham............................... 991 Ohio Tax Comm’r; Huntington National Bank v.............. 1005 Ohlendorf v. Gayles.................................. 929,1015 Oklahoma; Ellis v........................................ 1010 Oklahoma County Board of Education; York v................ 954 Olds v. Pennsalt Chemicals Corp.......................... 1010 Oliver v. Ellenbogen...................................... 944 Oison Bodies, Inc. v. Labor Board......................... 954 Omaha; Millard v.......................................... 951 O’Neal v. United States................................... 917 O’Neil; LeClair v......................................... 984 Operating Engineers v. Labor Board........................ 976 TABLE OF CASES REPORTED XXXVII Page Oregon; Childs v........................................... 1006 Oriental Boulevard Co. v. Heller.......................... 986 Ortega, In re............................................... 972 Osborn v. Rundle........................................... 1002 O’Shaughnessy v. Bissell.................................... 915 O’Shea; Seymour v........................................... 946 Otter Tail Power Co. v. Fédéral Power Comm’n................ 947 Overmyer Co. of Ohio v. Frick Co............................ 992 Overton v. Rieger.......................................... 1003 Overton Park Citizens v. Volpe.............................. 402 Owings v. Maryland.......................................... 937 Pacheco v. Casscles......................................... 918 Pacific Indemnity Co. v. Acel Delivery Service.............. 955 Pacific Maritime Assn.; Alexander v........................ 1009 Pacific National Bank of San Francisco v. Myers............. 912 Package Devices, Inc. v. Sun Ray Drug Co.................... 956 Padilla v. United States.................................... 943 Page; Claunch v............................................. 957 Paine; O’Haîr v............................................. 955 Panduit Corp.; Stahlin Bros. Fibre Works v.................. 939 Paniccioli v. United States................................. 993 Pape; Time, Inc. v...................................... 279,1015 Parker v. United States..................................... 925 Parkin v. Florida........................................... 974 Parrott v. United States.................................... 979 Parsons; Baie v............................................. 986 Passaic County Bar Assn. v. Hughes......................... 1003 Pâte; Bonner v.............................................. 915 Pâte; Miller v.............................................. 924 Pâte; Musil v............................................... 914 Patterson; Falgout v........................................ 983 Patterson v. Humble Oil & Refining Co....................... 922 Patterson; Jackson v........................................ 923 Patuxent Institution Director; Jones v.................... 979 Patuxent Institution Director; McKinney v................... 958 P. B. I. C., Inc.; Byme v................................... 987 Peacock v. Retail Crédit Co................................. 938 Peacock Records v. Checker Records.......................... 975 Pearlstein; Scudder & German v...................... 1013 Pell City Farms; Bukacek v.................................. 910 Peltz v. United States...................................... 955 Penn Central Transportation Co. v. Fisher................... 975 Penn Central Transportation Co. Trustées v. Pennsylvania.. 902 Pennsalt Chemicals Corp.; Olds v........................... 1010 XXXVIII TABLE OF CASES REPORTED Page Pennsylvania; Baker v...................................... 902 Pennsylvania; Darden v................................... 1004 Pennsylvania; Hernley v................................... 914 Pennsylvania; Meagher v.................................... 993 Pennsylvania v. New York..................................... 931 Pennsylvania Supt. of Public Instruction; Lemon v.......... 931 Pepitone v. Prelsnik......................................... 922 Ferez v. Ledesma.............................................. 82 Perini; Coakley v............................................ 972 Perini; Gomori v............................................. 945 Perkins v. Brown............................................. 944 Pemell v. Neil............................................... 905 Petuskey v. Rampton.......................................... 913 Petway v. North Carolina..................................... 959 Phillips v. United States.................................... 917 Phillips v. Wade............................................. 946 Piedmont Aviation, Inc.; Preiser Scientific, Inc., of Ohio v... 1009 Pier 67, Inc. v. King County................................. 911 Pinto; Machin v.............................................. 919 Pioneer Plumbing Supply Co.; Hackin v........................ 910 Piper v. U. S. District Court................................ 971 Pittsburgh Plate Glass Co.; Allied Chemical Workers v... 907 Pittsburgh Plate Glass Co.; Labor Board v.................... 907 Plasterers’ Union No. 79; Labor Board v.................. 973,991 Plasterers’ Union No. 79; Texas Tile & Terrazzo Co. v.... 973,991 Pope v. Haimowitz............................................ 930 Pope v. Rundle............................................... 933 Pope v. United States........................................ 949 Porter v. Kimzey............................................. 985 Port of New York Authority v. Fédéral Maritime Comm’n.... 909 Port of Portland v. United States............................ 906 Postell v. United States..................................... 920 Poster Exchange; National Screen Service Corp. v........ 912,1015 Postmaster General; Charles v............................. 909 Powers; Lenit v.............................................. 975 Pratt v. United States...................................... 1012 Pratz v. Louisiana Polytechnic Institute................ 951,1004 Preiser Scientific, Inc., of Ohio v. Piedmont Aviation, Inc.... 1009 Prelsnik; Pepitone v......................................... 922 Prepmore Apparel; Clothing Workers v......................... 993 Price v. California.......................................... 979 Procunier v. Atchley......................................... 966 Pruett v. Texas.............................................. 953 Pruitt v. United States...................................... 919 TABLE OF CASES REPORTEE XXXIX Page Puerto Rico Superior Court; Mercado v..................... 1003 Puerto Rico Téléphoné Co. v. Figueroa de Arroyo............ 926 Pulley v. Norvell.......................................... 916 Pullman Co.; Love v........................................ 907 Pullman Co.; United States v............................... 907 Pyramid Lake Paiute Tribe v. United States................. 909 Queens County District Attorney; Fernandez v................ 66 Queens County District Attorney; Samuels v.................. 66 Quest, Inc. v. Mercantile National Bank of Chicago......... 956 Quinley v. Illinois.......................................... 958 Quinn v. California.......................................... 969 Rabb v. United States........................................ 971 Radich v. New York........................................... 531 Radil v. Minnesota........................................... 921 Rafter v. Hoyt............................................ 1008 Railing; Mine Workers v...................................... 486 Railroad Retirement Board; Cobb v............................ 946 Ralph Printing & Lithographing Co. p. Labor Board........ 925 Rampton; Petuskey v.......................................... 913 Ramsey v. Mine Workers...................................... 302 Randall; United States v..................................... 513 Ray v. Attorney General...................................... 902 Ray v. Fédéral Com. Comm’n................................... 940 Ray v. Golden Ox Restaurant.................................. 927 Ray v. Kansas.City Stockyards Co. of Maine................. 927 Ray Gardner Flying Service; Rogers v...................... 1010 Reb’s Book & Card Shop v. Slaton........................... 985 Reda v. United States...................................... 917 Reed v. Reed............................................... 934 Reed v. United States...................................... 957 Regents of the University of California; Sellers v......... 981 Reichmann; Sailer v........................................ 917 Reiff v. United States..................................... 938 Relford v. Commandant, U. S. Disciplinary Barracks....... 355 Reliance Electric Co. v. Emerson Electric Co.............. 1008 Rembert v. Ohio............................................ 921 Reptile Products Assn. v. Diamond.......................... 969 Resor; Yahr v................................................ 982 Retail Crédit Co.; Atwell v............................... 1009 Retail Crédit Co.; Peacock v................................. 938 Rewis v. United States....................................... 808 Reynolds Metals Co.; Dewey v................................. 932 Rhay; Standley v............................................. 946 Rhode Island Board of Elections; Malinou v................. 986 Rhode Island Comm’r of Education v. DiCenso................ 931 xl TABLE OF CASES REPORTEE Page Ricchetti v. Meister Brau, Inc............................. 939 Rice; North Carolina v.................................... 1008 Ricehill v. lowa........................................... 942 Richardson v. Belcher...................................... 935 Richardson; Dalto v........................................ 979 Richardson; Edlin v........................................ 920 Richardson v. Kennedy...................................... 901 Richardson; Tilton v..................................... 931 Richardson v. United States................................ 944 Richardson Foundation v. United States.................... 1009 Richeson v. Hornstein...................................... 994 Riddick v. Cox............................................. 916 Ridgill v. Follette........................................ 920 Rieger; Overton v......................................... 1003 Riley v. Field............................................. 922 Ring v. Mayor of Rutherford................................ 911 Ritchie; Triangle Improvement Council v........... 932,953,1007 Rivezzo v. United States................................... 909 Roberts v. United States................................... 925 Robinson v. DiCenso........................................ 931 Robinson; Lewis v.......................................... 926 Robles v. New York......................................... 945 Rodgers; Smith v.......................................... 1011 Rodicker v. Illinois Central R. Co......................... 949 Rod Rie Corp. v. Labor Board............................... 937 Rodriguez; Swank v......................................... 990 Rodriguez v. United States................................. 943 Rodriguez-Romero v. Immigration and Naturalization Service. 976 Rodriquez-Gastelum v. United States........................ 958 Rogers v. Bellei........................................... 815 Rogers v. California....................................... 926 Rogers v. Ray Gardner Flying Service.................... 1010 Rogers Discountland ; Richeson v........................ 994 Rojas v. United States..................................... 915 Rollins v. Shannon......................................... 988 Romano v. New York......................................... 913 Roselli v. United States................................... 924 Rosenstein v. United States................................ 921 Ross; Eckels v............................................. 933 Rosselli v. United States.................................. 926 Roudebush v. Hartke........................................ 972 Roy v. Illinois............................................ 949 Roy; Monitor Patriot Co. v................................. 265 Rubin v. United States..................................... 945 Rubino v. United States............................... 910,1004 TABLE OF CASES REPORTED xli Page Rucker v. California......................................... 924 Rundle; Glasshofer v......................................... 944 Rundle; Osborn v............................................ 1002 Rundle; Pope v............................................... 933 Rundle; Saunders v........................................... 921 Ruscito v. Schaffer......................................... 1009 Russell v. Green ville Shipbuilding Corp..................... 923 Russell; Kimbro v............................................ 918 Russell; Lawrence v.......................................... 920 Russell; Mescalero Apache Tribe v............................ 981 Rutherford Mayor; Ring v..................................... 911 Rutledge v. Sheriff of Ingham County......................... 915 Ryan; Dyches v............................................. 988 Sabella v. Follette........................................ 920 Sabow v. Michigan.......................................... 1010 Sacco v. United States....................................... 926 Sadowy v. Mancusi.......................................... 957 Sailer v. Craven............................................. 944 Sailer v. Reichmann.......................................... 917 St. Paul Union Depot Co.; Transportation Union v........... 975 Salanitro v. United States................................... 908 Salisbury; Dowell v.......................................... 959 Salisbury; Lowther v......................................... 977 Salvi v. New Jersey.......................................... 980 Samuel v. United States...................................... 946 Samuels v. Mackell............................................ 66 San Antonio Conservation Society v. Texas Highway Dept.... 926 Sanders; Dobbs Houses, Inc. v................................ 948 Sanders v. United States..................................... 944 Sanfira v. Moga.............................................. 940 San Francisco Unified School District; Fehlhaber v......... 1012 Sanks v. Georgia............................................. 144 Sarelas v. Board of Managers of Chicago Bar Assn........... 963 Sarno v. Illinois Crime Investigating Comm’n................. 935 Saunders v. Rundle........................................... 921 Schaffer; Ruscito v......................................... 1009 Schipani v. United States.................................... 983 Schlanger v. Seamans..................................... 487,927 Schlette v. California Adult Authority...................... 1012 Schmidt; Karr v......................................... 930,1201 Schneider v. California...................................... 929 School Committee of Boston ; Fenton v........................ 929 Schroeder v. United States................................... 943 Schutte; Armco Steel Corp. v................................. 910 Schutz v. United States..................................... 1002 XLII TABLE OF CASES REPORTED Page Scientific Living, Inc.; Hohensee v........................... 959 Scoratow v. United States..................................... 955 Scott; Doe v.................................................. 969 Scott v. Illinois............................................. 958 Scott Paper Co.; Fort Howard Paper Co. v...................... 913 Scudder & German v. Pearlstein............................... 1013 Scuncio; Shipyard Drive-In Theatre v..................... 1005 Sealey v. North Carolina................................. 1012 Seamans; Schlanger v.................................... 487,927 Secretary of Air Force; Schlanger v..................... 487,927 Secretary of Army; Gruca v................................ 978 Secretary of Army; Yahr v................................. 982 Secretary of Defense; Angle v............................. 918 Secretary of Health, Education, and Welfare v. Belcher...... 935 Secretary of Health, Education, and Welfare; Dalto v........ 979 Secretary of Health, Education, and Welfare; Tilton v....... 931 Secretary of Interior; Colson v........................... 911 Secretary of Interior ; Sierra Club v..................... 907 Secretary of State v. Bellei.............................. 815 Secretary of State of Alabama ; Hadnott v................. 968 Secretary of State of Connecticut; Ruscito v............. 1009 Secretary of the Commonwealth ; Lisker y.................. 928 Secretary of Transportation; Overton Park Citizens v........ 402 Secretary of Treasury; Anderson v......................... 969 Secretary of Treasury; Richardson v....................... 901 Securities & Exchange Comm’n; Abbett, Sommer & Co. v.... 974 Securities & Exchange Comm’n v. Medical Committee........... 973 Securities & Exchange Comm’n; Nat. Assn. of Sec. Dealers v. 617 Security Mutual Casualty Co. v. First Nat. Bk. of Cushing.. 975 Security Pacific National Bank v. Myers....................... 912 Sélective Service Local Board No. 7; Fein v................... 953 Sélective Service Local Board No. 28; Thompson v.............. 970 Sélective Service System National Director; Gregory v....... 990 Select Minority Trust v. United States........................ 940 Sellers v. Dixilyn Corp....................................... 980 Sellers v. Regents of the University of California............ 981 Sendak v. Hartke.............................................. 972 Serman v. United States....................................... 908 Sewell v. Avery............................................... 918 Seymour v. O’Shea............................................. 946 S. Felicione & Sons Fish Co. v. Citizens Cas. Co. of N. Y.... 939 Shannon; Rollins v............................................ 98g Shapiro v. East Windsor Municipal Utilities Authority....... 1010 Shearson, Hammill & Co.; Gardner v............................ 978 TABLE OF CASES REPORTED XLHI Page Sher; Curry v............................................... 948 Sheriff of Dallas County; McDaniel v........................ 941 Sheriff of Ingham County; Rutledge v...................... 915 Sherman v. United States............................... 908,1015 Shevin v. Lazarus........................................... 987 Shields; United States v................................... 1007 Shipp v. Craven............................................. 919 Shipyard Drive-In Theatre v. Scuncio.................... 1005 Shirley v. Louisiana........................................ 926 Short; Tate v............................................... 395 Shorter v. Florida.......................................... 977 Sidney v. United States..................................... 938 Sid W. Richardson Foundation v. United States......... 1009 Sierra Club v. Morton....................................... 907 Simon v. United States...................................... 955 Singal v. Blackwell......................................... 922 Singletary; Anderson v...................................... 917 Slaton; Johnnie Reb’s Book & Card Shop v.................... 985 Slaughter; Spillers v....................................... 930 Smith v. Bloom............................................. 1014 Smith; Brown v.............................................. 915 Smith v. California......................................... 957 Smith v. Eastern Orthodox Churches of Greater Detroit..... 929 Smith v. Garza............................................. 1006 Smith; Hadley v............................................. 915 Smith; Hahn v............................................... 926 Smith; Hawkins v............................................ 95O Smith; Kitchens v........................................... 347 Smith v. Rodgers.......................................... 1011 Smith; Tarver v............................................. 906 Smith v. United States............................... 911 942 977 Smithwick; Arnold v......................................... 921 Smythe Estate; Masters v.................................... 969 Socialist Labor Party v. Gilligan......................... 991 Somerville v. Illinois..................................... 1007 Sorrells v. United States................................... 971 Soto v. Texas............................................... 942 South Carolina; Lagerquist v................................ 937 South Carolina Governor; Williams v......................... 951 South Carolina Tricentennial Comm’n; Timmons v.............. 949 Southern Pacific Transportation Co. v. Butler............... 975 Southland Inc. v. Cox Enterprises........................... 993 Southwire Co. v. Labor Board................................ 939 Sperry & Hutchinson Co.; fédéral Trade Comm’n v........... 992 Spigner, In re.............................................. 916 xliv TABLE OF CASES REPORTED Page Spigner v. California......................................... 914 Spigner v. United States...................................... 918 Spillers v. Slaughter......................................... 939 Springle v. Zelker............................................ 980 Stahlin Bros. Fibre Works v. Panduit Corp..................... 939 Stambler v. Dillon............................................ 953 Standard Oil Co. of California; Hawaii v...................... 936 Standley v. Conte............................................. 979 Standley v. Rhay.............................................. 946 Stanley v. Ohio............................................... 993 Starns v. Malkerson........................................... 935 State. See name of State. State Bar of Arizona; Baird v................................... 1 State Bar of Michigan ; Transportation Union v................ 576 State Board of Education; Bd. of Education of Netcong v... 1013 State of Israël v. The Nili................................... 994 State Road Comm’n of W. Va.; Triangle Council v... 932,953,1007 States Marine Lines v. Fédéral Maritime Commun................ 967 States Steamship Co.; McMahan v............................... 956 Stead v. United States........................................ 973 Steelworkers v. Abrams....................................... 1999 Steelworkers v. Vulcan Materials Co........................... 963 Stein; Dyson v................................................ 200 Stelly v. Bauer Dredging Co................................... 993 Sterling National Bank of Davie v. Camp....................... 925 Sterner Lighting, Inc. v. Allied Electrical Supply............ 999 Stevenson v. Mancusi.......................................... 939 Stewart; Citizens Casualty Co. of New York v 919 Stifel v. United States....................................... 994 Stockton; Altman v............................................ 994 Stokes v. Howard.............................................. 959 Stokes v. Illinois............................................ 94g Stolar, In re.................................................. 23 Stone v. United States........................................ 912 Strong v. California.......................................... 939 Stuller v. California......................................... 977 Suffolk County District Attorney v. Karalexis................ 216 Suffolk County District Attorney v. P. B. I. C., Inc....... 987 Sullivan; Jones v............................................. 977 Sun Oil Co.; Humble Oil & Refining Co. v..................... 1993 Sun Ray Drug Co.; Package Devices, Inc. v..................... 956 Superintendent of Banks of Georgia; First Nat. Bank v....... 947 Superintendent of Ins. of N. Y. v. Bankers Life & Cas. Co.... 973 Superintendent of Ins. of N. Y.; Citizens Casualty Co. v.... 910 TABLE OF CASES REPORTEE xlv Page Superintendent of penal or correctional institution. See name of superintendent. Superintendent of Public Instruction of Pa.; Lemon v..... 931 Superintendent of Schools; Appalachian Volunteers v...... 939 Superior Court for Los Angeles County; Washington v....... 956 Superior Court of California; Curtin v................... 1013 Superior Court of California; Halde v..................... 974 Superior Court of Puerto Rico; Mercado v.................. 1003 Swank; Alexander v......................................... 906 Swank v. Rodriguez........................................... 990 Swank; Townsend v.......................................... 906 Swarb v. Lennox............................................ 991 Sweetenham; Gilligan v..................................... 991 Swenson; Bellew v......................................... 1002 Szijarto v. California..................................... 905 Szot v. Florida Industrial Comm’n......................... 1009 Tabb; Zabel v................................................ 910 Taddeo v. United States...................................... 944 Tape Industries Assn. v. Younger........................... 902 Tarabocchia; Zim Israël Navigation Co. v................. 930 Tarr; Gregory v............................................ 990 Tarrants v. Mississippi.................................... 920 Tarver v. Smith.............................................. 906 Tasse v. California.......................................... 942 Tate v. Daggett.............................................. 958 Tate v. Illinois............................................. 941 Tate v. Short................................................ 395 Tax Comm’r of Ohio; Huntington National Bank v............ 1005 Taylor v. California....................................... 972 Taylor; Emmons v.......................................... 1010 Taylor v. Johnson............................................ 995 Taylor v. United States...................................... 983 Teamsters; Braswell Motor Freight Lines v................ 937 Technical Development Corp. v. Beckman Instruments........ 976 Teitelbaum v. United States.................................. 924 Tennessee; Hankins v......................................... 937 Tennessee; Harris v.......................................... 978 Tennessee; Hood v............................................ 972 Tennessee; Lang v............................................ 923 Tennessee; Thurman v......................................... 938 Tennessee Comm’r of Revenue; ABC Books, Inc. v.......... 988 Tennessee Governor v. Blumstein.............................. 934 Terminal Railroad Assn. of St. Louis; Auld v................. 940 Texas; Lassere v............................................. 920 XLVI TABLE OF CASES REPORTED Page Texas; McKenzie v........................................... 903 Texas v. Mitchell........................................... 903 Texas; Pruett v............................................. 953 Texas; Soto v............................................... 942 Texas Governor v. Garza.................................. 1006 Texas Highway Dept.; San Antonio Conservation Society v.. 926 Texas Instruments, Inc.; Farkas v........................... 974 Texas & Pacific R. Co. v. Allen........................... 910 Texas Power & Light Co.; Bass v........................... 975 Texas State Tile & Terrazzo Co. v. Plasterers’ Union.... 973,991 Theriault v. Daggett........................................ 983 Theriault v. United States.................................. 983 Thill Securities Corp.; New York Stock Exchange v........ 994 Thomaidis v. Immigration and Naturalization Service...... 954 Thomas v. Honeybrook Mines, Inc........................... 911 Thomas v. Wingo........................................... 933 Thomas Wilson & Co.; Irving J. Dorfman Co. v.............. 977 Thompson v. Nelson........................................ 943 Thompson v. Sélective Service Local Board No. 28.......... 970 Thompson v. United States................................. 944 Thompson (Select Minority Trust) v. United States........ 940 Thomsen ; Dowdy v......................................... 972 314% Bondholders Protective Corn.; Bondholders Corn. v... 938 Thurman v. Tennessee...................................... 938 Tilli v. Northampton County............................... 978 Tilton v. Richardson..................................... 931 Time, Inc. v. Pape................................... 279,1015 Timmons v. South Carolina Tricentennial Comm’n............ 949 Tocco v. United States.................................... 938 Toledo; Cummings v........................................ 903 Toliver v. United States.................................. 913 Tollefsen v. Commissioner................................. 908 Townsend v. Swank......................................... 906 Tracy v. United States.................................... 980 Transportation Union v. St. Paul Union Depot Co........... 975 Transportation Union v. State Bar of Michigan............. 576 Triangle Improvement Council v. Ritchie.......... 932,953,1007 Triplett v. Illinois...................................... 955 Tri-Service Drilling Co. v. Labor Board................... 940 Trotter v. United States.................................. 942 Tucker v. United States................................... 976 Tug Peggy; Jack Neilson, Inc. v........................... 955 Tull v. Maryland.......................................... 958 Tulsa County District Attorney; Brown v................... 985 TABLE OF CASES REPORTEE xlvh Page Turner v. Wilhelm............................................ 947 Turzynski v. Libert.......................................... 975 21 Turtle Creek Sq. v. N. Y. State Teachers’ Retirement Sys.. 955 Twomey; Johnson v....................................... 916 Twomey; Lego v............................................... 992 Unicom Enterprises; United States v.......................... 907 Union. For labor union, see name of trade. Unit Crâne & Shovel Corp.; Fontenot v........................ 936 Unit Crâne & Shovel Corp.; Nicklos Drilling Co. v........... 936 United. For labor union, see name of trade. United Aircraft Corp. v. Labor Board..................... 933,993 United Artists Corp.; Fields Productions, Inc. v............. 949 United Concrète Pipe Corp. v. Maricopa County................ 937 United Services Automobile Assn. v. United States............ 984 United States; Adler Construction Co. v...................... 949 United States; Akers v...................................... 950 United States; Akin v...................................... 1011 United States; Alvarez v................................... 913 United States; Amabile v.................................. 924 United States; American Radiator & Standard San. Corp. v.. 948 United States; Anchor Coupling Co. v......................... 908 United States; Arquilla v................................... 920 United States; Ashbrook v.................................... 938 United States; Barash v................................... 938 United States; Bartlett v................................... 986 United States; Barzie v..................................... 975 United States v. Bass....................................... 993 United States; Battaglia v.................................. 924 United States; Benoit v.................................... 1011 United States; Bentley v.................................... 920 United States; Berger v..................................... 962 United States; Berrier v.................................... 966 United States; Bessesen v.................................. 1009 United States; Bivens v..................................... 944 United States; Blanchard v.................................. 959 United States; Bland v...................................... 912 United States; Blue v....................................... 921 United States; Boat Transit, Inc. v......................... 928 United States; Borelli v.................................... 946 United States; Borg-Wamer Corp. v........................... 948 United States; Bowles v..................................... 995 United States; Brandom v..................................... 942 United States v. Brewster.................................... 935 United States; Briddle v..................................... 921 xlviii TABLE OF CASES REPORTEE Page United States; Briscoe v....................................... 926 United States; Brookins v................................... 912 United States; Brown v......................................... 966 United States; Bujese v........................................ 978 United States; Bukowski v.................................. 911 United States; Burnett v...................................... 1010 United States; Burris v........................................ 921 United States; Burtman v................................... 966 United States; Butler v........................................ 978 United States; Butts v........................................ 1010 United States v. Campos-Serrano............................ 936,990 United States; Carr v..................................... 920,1011 United States; Casson v........................................ 919 United States; Cataldo v....................................... 977 United States; Chapman v................................... 950 United States; Clemons v....................................... 945 United States; Collins v....................................... 957 United States; Compton v...................................... 1014 United States; Cook v.......................................... 996 United States; Cooper v.................................... 942,977 United States; Cor die v................................... 917 945 United States; Coronado v................................... 957 United States; Craft v......................................... 957 United States; Curtis v.....................................915 1004 United States; Daniell v....................................... 982 United States; DeAngelis v..................................... 976 United States; DeBose v........................................ 920 United States; De la Motte v................................ 921 United States; DePugh v........................................ 978 United States; DeSapio v...................................... 1008 United States; Desonia v....................................... 981 United States; DiBartolo v..................................... 993 United States; Dippolito v..................................... 940 United States v. District Court in and for Eagle County.... 520 United States v. District Court in and for Water Div. No. 5.. 527 United States; Donofrio v................................... 970 United States; Donovan v................................... 944 United States; Durham v................................... 481 United States; Eaton v....................................... 995 United States; Electronic Industries Assn. v................. 967 United States; Elkanich v................................... 646 United States; Elman v....................................... 958 United States; Epps v....................................... 1006 United States; Ericksen v................................ 933,978 TABLE OF CASES REPORTED XLIX Page United States; Ethridge v...................................... 926 United States; Evans v.................................... 924,1014 United States; Fairchild v.................................. 901 United States; Fannon v....................................... 1012 United States; Fassler v...................................... 1011 United States; Fiadini v....................................... 993 United States; Fraser v........................................ 916 United States v. Freed......................................... 601 United States; Frey v............................................ 911 United States; Fristoe v......................................... 918 United States; Frost v........................................... 916 United States; Fuentes v...................................... 919 United States; Garelle v...................................... 967 United States; Gearing v...................................... 980 United States v. Générés......................................... 972 United States; Gibbs v......................................... 994 United States; Gideon v........................................ 947 United States; Giglio v........................................ 936 United States; Gilboy v........................................ 950 United States; Gillette v...................................... 437 United States; Glass v......................................... 959 United States; Goetluck v..................................... 1011 United States; Gomez v......................................... 995 United States; Greene v....................................... 984 United States; Grieco v....................................... 1009 United States; Guy v........................................... 972 United States; Haifley v....................................... 981 United States; Halley v............................... 905,916,1004 United States; Hamilton v.................................... 913 United States; Harper v........................................ 950 United States; Harrington v................................... 995 United States; Haywood v....................................... 922 United States; Held v......................................... 948,1010 United States; Eigdon v........................................ 1011 United States; Hilliker v....................................... 958 United States; Hogg v........................................... 910 United States; Holstein v....................................... 993 United States; Hopkins v....................................... 1013 United States; Horvath v........................................ 937 United States; Hosmer v......................................... 978 United States; Howard v......................................... 918 United States; Hubbard v.......................................... 1010 United States v. International Minerais & Chemical Corp......... 971 United States; Jacobs v............................................ 924 415-649 0 - 72 -4 l TABLE OF CASES REPORTED Page United States; Johnson v..................................... 846 United States; Jones v.......................... 924,926,995,1014 United States; Joseph v...................................... 918 United States; Kapatos v..................................... 909 United States; Kelley v...................................... 905 United States; Kelly v....................................... 921 United States; King v.................................... 922,962 United States; Kohler Co. v.................................. 948 United States; Koresko v.................................... 1012 United States; Kyriaco v..................................... 922 United States; Leano v....................................... 977 United States; Levine v...................................... 949 United States; Levy v........................................ 962 United States; Lewis v....................................... 917 United States; Lipscomb v.................................... 980 United States; Lomax v....................................... 995 United States; Lowery v...................................... 978 United States; Lucakos v..................................... 977 United States; Lucas v.................................... 977 984 United States; MacFarlane v................................. 939 United States; Mackey v.................................... 667 United States; Malinsky v.................................. 940 United States; Marcello v.................................. 1003 United States v. Marion...................................... 934 United States; Martinez v................................... 959 United States; McDowell v................................... 943 United States v. McFadden................................... 1006 United States; McGee v.................................... 942 970 United States; McKinney v................................ 922 United States; McKuin v..................................... 911 United States; Mendoza v.................................... 943 United States; Mensik v..................................... 962 United States; Mills v...................................... 925 United States; Mines v..................................... 1011 United States v. Mississippi Chemical Corp................... 908 United States; Mitchell v................................... 910 United States; Montagna v................................... 967 United States; Monteiro v................................... 978 United States; Montero v.................................... 922 United States; Moore v..................................... 1013 United States; Morrison v................................... 945 United States; Nagelberg v.................................. 939 United States; Nasse v...................................... 938 United States; Neal v..................................... 957 979 TABLE OF CASES REPORTEE u Page United States; Neuman v........................................ 974 United States; Newton v..................................... 944 United States; Noonan v..................................... 981 United States; O’Connor v.................................... 911 United States; O’Neal v..................................... 917 United States; Padilla v....................................... 943 United States; Paniccioli v.................................... 993 United States; Parker v........................................ 925 United States; Parrott v..................................... 979 United States; Peltz v....................................... 955 United States; Phillips v.................................... 917 United States; Pope v........................................ 949 United States; Port of Portland v........................... 906 United States; Postell v....................................... 920 United States; Pratt v........................................ 1012 United States; Pruitt v........................................ 919 United States v. Pullman Co.................................... 907 United States; Pyramid Lake Paiute Tribe v..................... 909 United States; Rabb v................................ 971 United States v. Randall.............................. 513 United States; Reda v................................ 917 United States; Reed v................................ 957 United States; Reiff v............................... 938 United States; Rewis v............................... 808 United States; Richardson v............................. 944 United States; Rivezzo v.............................. 909 United States; Roberts v.............................. 925 United States; Rodriguez v............................. 943 United States; Rodriquez-Gastelum v......................... 958 United States; Rojas v............................... 915 United States; Roselli v.............................. 924 United States; Rosenstein v............................. 921 United States; Rosselli v.............................. 926 United States; Rubin v............................... 945 United States; Rubino v.......................... 910,1004 United States; Sacco v............................... 926 United States; Salanitro v............................. 908 United States; Samuel v............................... 946 United States; Sanders v.............................. 944 United States; Schipani v.............................. 983 United States; Schroeder v............................. 943 United States; Schutz v.............................. 1002 United States; Scoratow v.............................. 955 United States; Select Minority Trust v....................... 940 lu TABLE OF CASES REPORTED Page United States; Serman v........................................ 908 United States; Sherman v.................................. 908,1015 United States v. Shields...................................... 1007 United States; Sidney v........................................ 938 United States; Sid W. Richardson Foundation v................. 1009 United States; Simon v......................................... 955 United States; Smith v................................. 911,942,977 United States; Sorrells v...................................... 971 United States; Spigner v....................................... 918 United States; Stead v......................................... 978 United States; Stifel v........................................ 994 United States; Stone v......................................... 912 United States; Taddeo v........................................ 944 United States; Taylor v........................................ 983 United States; Teitelbaum v.................................... 924 United States; Theriault v................................... 983 United States; Thompson v.................................... 944 United States; Tocco v....................................... 938 United States; Toliver v..................................... 913 United States; Tracy v......................................... 980 United States; Trotter v..................................... 942 United States; Tucker v...................................... 976 United States v. Unicom Enterprises............................ 907 United States; United Services Automobile Assn. v............ 984 United States v. U. S. Coin & Currency....................... 715 United States; Utah v.................................... 903,970 United States; Vaught v..................................... 976 United States; Viggiano v.................................... 938 United States; Vigil v....................................... 918 United States; Vincent v..................................... 946 United States; Virden v........................................ 994 United States; Webb v.......................................... 958 United States; Webster v...................................... 1007 United States; Weil v.......................................... 947 United States; Weissman v.................................. 982 United States v. Weller........................................ 254 United States v. White......................................... 745 United States; Williams v.......................... 646,995,1011 United States; Wilson v.................................... 916 United States; Wolfe v.................................... 993 United States; Wright v........................................ 979 United States; Yeto v.......................................... 952 United States; Yoder v................................... 1002 United States; Young v................................ 915,995 United States; Zezoff v....................................... 1004 TABLE OF CASES REPORTED LUI Page U. S. Circuit Judge; Haywood v................................ 952 U. S. Coin & Currency; United States v........................ 715 U. S. Court of Appeals Chief Judge; Fennell v................. 906 U. S. Disciplinary Barracks Commandant; Relford v........... 355 U. S. District Court; Austin v......................... 991 U. S. District Court; Cantrell v............................. 918 U. S. District Court; Inman v.......................... 916 U. S. District Court; Piper v.......................... 971 U. S. District Court Chief Judge; Zenith Radio Corp. v.... 953 U. S. District Judge; Dowdy v................................ 972 U. S. District Judge; Geyer Broadcasting Co. v............... 937 U. S. District Judge v. Harper & Row Publishers............... 950 U. S. District Judge; Lewis v................................ 926 U. S. District Judge; Williams v............................ 906 U. S. ex rel. See name of real party in interest. United States Lines; Gray v................................... 916 U. S. Marshal; Meadows v..................................... 1014 United Transportation Union v. St. Paul Union Depot Co.... 975 United Transportation Union v. State Bar of Michigan........ 576 University of California Regents; Sellers v................... 981 University of 111. Foundation; Blonder-Tongue Labs, v....... 932 University of Miami; Militana v............................... 962 Usner v. Luckenbach Overseas Corp............................ 1015 Utah v. United States..................................... 903,970 Utah Governor; Petuskey v..................................... 913 Vandygrift v. Florida......................................... 939 Van Sickle v. Nevada.......................................... 910 Vargo; Beaudry v.............................................. 909 Vasquez v. Indiana........................................... 1012 Vaughn v. Mancusi..................................... 917 Vaughn v. North Carolina................................. 914 Vaught v. United States.................................. 976 Victor v. New Jersey.......................................... 981 Victory Carriers, Inc. v. Law............................... 936 Viggiano v. United States..................................... 938 Vigil v. United States........................................ 918 Vincent; Labine v............................................. 532 Vincent v. United States...................................... 946 Virden v. United States....................................... 994 Virginia; Mayfield v......................................... 1002 Virginia; Whitehead v......................................... 925 Virginia; Woodson v........................................... 959 Virginia A. B. C. Board; Antonson v........................... 995 Virgin Islands; Bennett v..................................... 957 Virgin Islands Comm’r of Finance v. Chicago Bridge Co.... 910 liv TABLE OF CASES REPORTED Page Vital v. California....................................... 980 Vogt; Zenor v............................................. 995 Volpe; Citizens to Preserve Overton Park v................ 402 Vulcan Materials Co.; Steelworkers v...................... 963 Wade v. Buchanan.......................................... 989 Wade; Buchanan v........................................... 989 Wade; Phillips v........................................... 946 Wadmond; Law Students Civil Rights Research Council v.. 154 Wainwright; Conklin v...................................... 943 Wainwright; Finney v....................................... 962 Wainwright; Forbes v...................................... 905 Wainwright; James v....................................... 972 Walker v. Brantley................................... 942,1015 Walker v. Cardwell........................................ 943 Walker; McPherson v........................................ 908 Wallace v. New York....................................... 919 Wan Wong v. Liquor Control Comm’n.......................... 938 Ward v. California......................................... 917 Ward v. Ohio............................................... 980 Warden. See also name of warden. Warden; Whiteley v......................................... 560 Wardrop v. Brierley........................................ 957 Washington v. Coiner....................................... 915 Washington; Davis v.................................... 943 Washington v. Superior Court for Los Angeles County..... 956 Water Division No. 5 District Court; United States v.... 527 Waterman Steamship Corp. v. Commissioner........... 939 Wayne State University; Auer v................ 920 Webb v. United States...................................... 958 Webster v. United States................................. 1007 Weil v. United States...................................... 947 Weissman v. United States.................................. 982 Weller; United States v.................................... 254 West Virginia; Nelson v.................................... 977 West Virginia Road Comm’n; Triangle Council v.... 932, 953,1007 Wheatley v. Chicago Bridge & Iron Co............ 910 Wheeler; Goodman v......................................... 987 Whitcomb v. Affeldt........................................ 971 White v. LaVallee.......................................... 922 White; United States v..................................... 745 Whitehead v. Virginia...................................... 925 Whiteley v. Warden........................................ 560 Whitewater Mfg. Co.; Baker Mfg. Co. v...................... 956 Wiest; Garfield & Co. v.................................... 940 TABLE OF CASES REPORTED lv Page Wilder; Herpich v...................................... 947 Wilhelm; Turner v...................................... 947 Wilkens v. Maryland...................................... 943 Williams v. Brierley.................................... 945 Williams v. California................................... 919 Williams v. Craven...................................... 918 Williams v. Gray........................................ 906 Williams v. McNair....................................... 951 Williams v. Neil..................................... 927,984 Williams v. United States....................... 646,995,1011 Williams Co. v. Labor Board.............................. 937 Wilson v. Commercial Securities Co....................... 913 Wilson; Ginter v......................................... 915 Wilson v. United States.................................. 916 Wilson & Co.; Irving J. Dorfman Co. v.................... 977 Wimberley v. Craven.................................. 915,1015 Wingo; Thomas v.......................................... 933 Wisconsin; Maker v...................................... 1013 Wisconsin Real Estate Examining Board; Ford v............ 993 Wolfe v. United States................................... 993 Wolfish v. Klein......................................... 940 Wong v. Liquor Control Comm’n............................ 938 Wood v. Johnston Bronze Co............................... 976 Woodards; Cardwell v.................................... 911 Woods; Wright v.......................................... 966 Woodson v. Virginia...................................... 959 Wright v. District Court of Montgomery County........... 1011 Wright v. Mississippi................................... 929 Wright v. Montgomery.................................... 989 Wright v. United States................................. 979 Wright v. Woods......................................... 966 Wyandotte Chemicals Corp.; Ohio v........................ 493 Wyche; Hester v.......................................... 974 Wyman v. Boddie.......................................... 990 Wyoming; Carrillo v...................................... 921 Wyoming; Kennedy v....................................... 939 Wyoming State Penitentiary Warden; Whiteley v............ 560 Yahr v. Resor............................................ 982 Yeager; Baldwin v........................................ 919 Yeto v. United States.................................... 952 Yoder v. United States.................................. 1002 York v. Board of Education of School District 89......... 954 Young; Fahrig v.......................................... 979 Young v. United States............................... 915,995 lvi TABLE OF CASES REPORTED Page Younger v. Harris......................................... 37 Younger; Tape Industries Assn. y............................. 902 Zabel v. Tabb................................................ 910 Zelker; James v............................................ 979 Zelker; Nelson v........................................... 917 Zelker; Springle v........................................ 980 Zelkes; Delgado v........................................ 959 Zenith Radio Corp. v. Castle............................... 953 Zenith Radio Corp. v. Hazeltine Research, Inc..........321,1015 Zenor v. Vogt.............................................. 995 Zezoff v. United States................................... 1004 Zicarelli v. New Jersey Comm’n of Investigation........ 933,952 Zim Israël Navigation Co. v. Tarabocchia................... 930 TABLE OF CASES CITED Page Abbott Laboratories v. Gardner, 387 U. S. 136 410 Abington School Dist. v. Schempp, 374 U. S. 203 449,450,453,461 Abrams v. United States, 250 U. S. 616 275 Achtenberg v. Mississippi, 393 F. 2d 468 118 Adams v. Maryland, 347 U. S. 179 704,710 Addison v. Machinists, 300 F. 2d 863 241 Adkins v. Children’s Hospital, 261 U. S. 525 384,385 Adler v. Bd. of Ed., 342 U. S. 485 3 Aetna Life Ins. v. Haworth, 300 U. S. 227 123,129 Afroyim v. Rusk, 387 U. S. 253 820-823,827, 829, 835-839, 842-845 Agnello v. United States, 269 U. S. 20 660,782, 784 Aguilar v. Texas, 378 U. S. 108 564-567,573,782 Ahrens v. Clark, 335 U. S. 188 489-491 Airline-Arista Printing, In re, 267 F. 2d 333 519 Alabama Fed. of Labor v. McAdory, 325 U. S. 450 369 Albertson v. SACB, 382 U. S. 70 709,710 Alderman v. United States, 394 U. S. 165 748,770,999 Allegheny County v. Mash-uda Co., 360 U. S. 185 71 Allen v. Grand Central Air-craft, 347 U. S. 535 739 Allen v. Theatrical Employées, 338 F. 2d 309 242 Allen Bradley Co. v. Union, 325 U. S. 797 313 Amalgamated. For labor union, see name of trade. Page American Com. Assn. v. Douds, 339 U. S. 382 4,174-176,189 American Ry. Express v. Stone, 27 F. 2d 8 344 American Tobacco v. United States, 328 U. S. 781 482,484 American Trucking Assns. v. United States, 344 U. S. 298 417 Anastaplo, In re, 366 U. S. 82 3,9,11-13,15,31,181 Anderson v. Dunn, 6 Wheat. 204 363 Anderson v. Nelson, 390 U. S. 523 229 Anderson Nat. Bk. v. Luck-ett, 321 U. S. 233 378 Andres, Ex parte, 91 Tex. Cr. R. 93 736 Angel v. Bullington, 330 U. S. 183 961 Angelini v. United States, 390 U. S. 204 716 Anonymous, In re, 17 N. Y. 2d 674 159 Apex Hosiery v. Leader, 310 U. S. 469 314 Application of. See name of party. Aptheker v. Secretary of State, 378 U. S. 500 197 A Quantity of Books v. Kansas, 378 U. S. 205 204,215 Arizona v. California, 373 U. S. 546 511,522,523 Armstrong v. Manzo, 380 U. S. 545 377,378 Arnold Tours v. Camp, 400 U. S. 45 621,641 Aro Mfg. Co. v. Convertible Top Co., 377 U. S. 476 344,346,348 Arsenault v. Massachusetts, 393 U. S. 5 653,724 LVII lvhi TABLE OF CASES CITED Page Ashcraft v. Tennessee, 322 U. S. 143 662 Ashton v. Cameron County Dist., 298 U. S. 513 742 Associated Press v. United States, 326 U. S. 1 599 Association. For labor union, see name of trade. Atlantic C. L. R. Co. v. Locomotive Engineers 398 U. S. 281 40,116 Baggett v. Bullitt, 377 U. S. 360 30,47,58,118, 162, 179, 195, 198, 199 Bailey v. Patterson, 323 F. 2d 201 118 Bailey v. United States, 132 U. S. App. D. C. 82 846 Baines v. Danville, 337 F. 2d 579 62 Baird v. State Bar of Arizona, 401 U. S. 1 24, 28-34, 179-182 Baldwin v. Haie, 1 Wall. 223 377 Baldwin v. New York, 399 U. S. 66 772 Bank of Commerce v. Tennessee, 161 U. S. 134 127 Bantam Books v. Sullivan, 372 U. S. 58 204 Barber v. Page, 390 U. S. 719 653 Barenblatt v. United States, 360 U. S. 109 36,162,247 Barlow v. Collins, 397 U. S. 159 641 Barnett v. Warner Bros., 112 F. Supp. 5 333 Barrett v. Third Ave. R. Co., 45 N. Y. 628 344 Bâtes v. Little Rock, 361 U. S. 516 4,6,36,176,197,379 Beal v. Missouri Pac. R. Co, 312 U. S. 45 46,48 Beauharnais v. Rlinois, 343 U. S. 250 215 Beck v. Lush, 170 Neb. 376 590 Beck v. Ohio, 379 U. S. 89 781 Beckley Newspapers v. Hanks, 389 U. S. 81 284 Beilan v. Bd. of Ed, 357 U. S. 399 3,162,166 Page Bell v. United States, 349 U. S. 81 812 Bellei v. Rusk, 296 F. Supp. 1247 820 Benton v. Hill, 72 F. 2d 826 740 Benton v. Maryland, 395 U. S. 784 391 Berger v. California, 393 U. S. 314 653,724 Berger v. New York, 388 U. S. 41 748,758- 760, 772, 777-782, 792 Bergeron v. Miller, 230 So. 2d 417 539 Best v. Humboldt Mining, 371 U. S. 334 377 Birdsell v. Shaliol, 112 U. S. 485 344 Bishop v. United States, 350 U. S. 961 965 Blair v. United States, 130 U. S. App. D. C. 322 231 Bloom v. Illinois, 391 U. S. 194 729,730 Bluefields S. S. Co. v. United Fruit, 243 F. 1 338 Board of Ed. v. Allen, 392 U. S. 236 452 Boddie v. Connecticut, 401 U. S. 371 558 Boilermakers v. Braswell, 388 F. 2d 193 235, 241,242,246, 251,252 Bolling v. Sharpe, 347 U. S. 497 449,469 Bond v. Floyd, 385 U. S. 116 164,179,180,192,193 Bowles v. Willingham, 321 U. S. 503 378,379 Boyce Motor Lines v. United States, 342 U. S. 337 615 Boyd v. United States, 116 U. S. 616 662,663,718, 720,722,789,793,805 Boyle v. Landry, 401 U. S. 77 53,63,65,93,203,962,988 Bradley Co. v. Union, 325 U. S. 797 313 Brandenburg v. Ohio 395 U. S. 444 4,41,60,65, 74,75,183,184,197 TABLE OF CASES CITEE LIX Page Brant v. United States, 19 U. S. C. M. A. 493 359 Braunfeld v. Brown, 366 U. S. 599 452,462 Breedlove v. Beto, 404 F. 2d 1019 231 Breen v. Peck, 28 N. J. 351 346 Brillhart v. Excess Ins. Co., 316 U. S. 491 121 Brinegar v. United States, 338 U. S. 160 805 Brinkerhoff-Faris Tr. Co. v. Hill, 281 U. S. 673 378 Brotherhood. For labor union, see name of trade. Brown v. Allen, 344 U. S. 443 684-687,690 Brown v. Bd. of Ed., 347 U. S. 483 551 Brown v. Chastain, 416 F. 2d 1012 381,961 Brownell v. We Shung, 352 U. S. 180 410 Bruton v. United States, 391 U. S. 123 653 Bull v. United States, 295 U. S. 247 127 Burke, Application of, 87 Ariz. 336 20 Burke v. Boilermakers, 417 F. 2d 1063 246 Burlington Truck Lines v. United States, 371 U. S. 156 419,628 Burns v. Ohio, 360 U. S. 252 384,386,388,966 Burns Baking Co. v. Bryan, 264 U. S. 504 384 Byrne v. Karalexis, 401 U. S. 216 93 Caddy-Imler Créations v. Caddy, 299 F. 2d 79 331 Cafétéria Workers v. Mc- Elroy, 367 U. S. 886 367,379,387 California v. Green, 399 U. S. 149 772 Camara v. Municipal Court, 387 U. S. 523 761,778-783 Cameron v. Johnson, 390 U. S. 611 49,55,117,118,122 Campbell v. Hussey, 368 U. S. 297 985 Page Cantwell v. Connecticut, 310 U. S. 296 5,10,29,30, 51, 59, 175, 176, 179, 188,215, 276, 379, 461 Carcaba v. McNair, 68 F. 2d 795 643 Cardinale v. Louisiana, 394 U. S. 437 805 Cardwell v. Commonwealth, 209 Va. 412 231 Carnley v. Cochran, 369 U. S. 506 848 Carpenters v. United States, 330 U. S. 395 309-311,315 Carrington v. Rash, 380 U. S. 89 10 Carroll v. United States, 267 U. S. 132 572, 574, 784 Cassidy, In re, 268 App. Div. 282 159 Chambers, In re, 69 N. D. 309 738 Chambers v. Maroney, 399 U. S. 42 572,574,660,661,784 Chapman v. California, 386 U. S. 18 229,570 Chapman v. United States, 365 U. S. 610 782 Cheramie v. Dutton, 74 F. 2d 740 739 Cheramie v. Freudenstein, 295 U. S. 733 739 Chicago & Alton R. Co. v. Wagner, 239 U. S. 452 344 Chicago, I. & L. R. Co. v. Hackett, 228 U. S. 559 741 Chicago & N. W. R. Co. v. De Clow, 124 F. 142 339 Chicot Drainage Dist. v. Baxter State Bk., 308 U. S. 371 698,742 Chimel v. California, 395 U. S. 752 574,648- 651, 656-666, 676, 679, 684, 692, 699, 761, 781, 783, 784, 802, 806, 807 Chisholm v. Georgia, 2 Dali. 419 104,105,108,500,713 Cipriano v. Houma, 395 U. S. 701 743 City. See name of city. Claassen v. United States, 142 U. S. 140 247 LX TABLE OF CASES CITED Page Cleary v. Bolger, 371 U. S. 392 89 Cleveland v. United States, 329 U. S. 14 462 Coe v. Armour Fertilizer, 237 U. S. 413 378,379 Coffin v. Left Hand Ditch Co., 6 Colo. 443 523 Cohen v. Bénéficiai Loan, 337 U. S. 541 381,391,392 Cohen v. Hurley, 366 U. S. 117 184 Cohens v. Virginia, 6 Wheat. 264 497 Cole v. Arkansas, 333 U. S. 196 252 Coleman v. Alabama, 399 U. S. 1 694,695 Coleman v. MacLennan, 78 Kan. 711 272 Commonwealth. See also name of Commonwealth. Commonwealth v. Davis, 4 Pa. D. & C. 2d 182 738 Commonwealth v. Padgett, 428 Pa. 229 231 Conley v. Gibson, 355 U. S. 41 335,408 Cooper v. Hutchinson, 184 F. 2d 119 62 Coppage v. Kansas, 236 U. S. 1 384,385 Coppedge v. United States, 369 U. S. 438 388 Corrections Commissioner. See name of commissioner. Cotonificio Bustese v. Mor-genthau, 74 App. D. C. 13 721 Counselman v. Hitchcock, 142 U. S. 547 704,707,710 County. See name of county. Courtney, Application of, 83 Ariz. 231 16 Covey v. Somers, 351 U. S. 141 378,380 Cramp v. Bd. of Pub. In- struction, 368 U. S. 278 195 Crooker v. United States, 325 F. 2d 318 482-484 Crowley v. Christensen, 137 U. S. 86 684,693 Page Crummer Co. v. Du Pont, 223 F. 2d 238 338 Culley v. Pennsylvania R. Co., 244 F. Supp. 710 339 Currin v. Wallace, 306 U. S. 1 114 Curtis Pub. v. Butts, 388 U. S. 130 271,276-278,300 Dancy v. United States, 390 F. 2d 370 750, 771 Dandridge v. Williams, 397 U. S. 471 551 Data Processing v. Camp, 397 U. S. 150 620,621, 641 Davis v. Mississippi, 394 U. S. 721 660,761,784,787 Davis v. Pringle, 268 U. S. 315 517 Davis v. Wallace, 257 U. S. 478 91 Delta Théâtres v. Para-mount Pictures, 158 F. Supp. 644 338,340 Dennis v. United States, 341 U. S. 494 613 Dennis v. United States, 384 U. S. 855 225 Desist v. United States, 394 U. S. 244 574 651-656, 663, 672, 675^ 676, 682, 694, 695, 714, 724, 726, 754, 755, 766, 769, 775, 793-796, 847 DeStefano v. Woods, 392 U. S. 631 655, 695, 729, 730 Director of penal or cor-rectional institution. See name of director. Dobbins’s Distillery v. United States, 96 U. S 395 719 Dombrowski v. Pfister, 380 U. S. 479 47-55,58, 59, 65, 97, 98, 117-122, 128, 195, 198, 211, 727 Donigian v. Laird, 308 F. Supp. 449 489,491 Doty v. United States, 416 F. 2d 887 751 Douglas v. California, 372 U. S. 353 384 386, 551, 653, 965, 966 TABLE OF CASES CITED LXI Page Douglas v. Jeannette, 319 U. S. 157 46-49,55,62,68, 117, 120, 122, 203, 727 Douglass v. Pike County, 101 U. S. 677 742 Downum v. United States, 372 U. S. 734 1007 Draper v. United States, 358 U. S. 307 567 Draper v. Washington, 372 U. S. 487 383,388,966 Duffel v. United States, 95 U. S. App. D. C. 242 739 Dugan v. Rank, 372 U. S. 609 525,529 Duncan v. Louisiana, 391 U. S. 145 391,655, 659, 729, 730 Dura Elec. Lamp v. Westinghouse Corp., 249 F. 2d 5 345 Durham v. United States, 401 U. S. 481 1006 Dyson v. Stein, 401 U. S. 200 93,962 Eagles v. Samuels, 329 U. S. 304 489 Elfbrandt v. Russell, 384 U. S. 11 3,166,197 Elk v. Wilkins, 112 U. S. 94 841 Elkanich v. United States, 327 F. 2d 417 649,657 Elkanich v. United States, 401 U. S. 646 672, 675, 676, 681, 684, 696, 699, 802 Ellis v. Esson, 50 Wis. 138 344 Elmore, Succession of, 124 La. 91 547 Engel v. Vitale, 370 U. S. 421 450 Enochs v. Williams Pack-ing, 370 U. S. 1 71 Epperson v. Arkansas, 393 U. S. 97 449,452, 469,728 Epton v. New York, 390 U. S. 29 75 Erie R. Co. v. Tompkins, 304 U. S. 64 499 Escobedo v. Illinois, 378 U. S. 478 729 Page Eskridge v. Washington Bd. of Paroles, 357 U. S. 214 388 Estate. See name of estate. Ethyl Gasoline v. United States, 309 U. S. 436 599 Euclid v. Ambler Realty, 272 U. S. 365 115 Evers v. Dwyer, 358 U. S. 202 56 Everson v. Bd. of Ed., 330 U. S. 1 449 Ewing v. Mytinger & Cas- selberry, 339 U. S. 594 379 Ex parte. See name of party. Fahey v. Mallonee, 332 U. S. 245 379 Fahy v. Connecticut, 375 U. S. 85 229 Farbenfabriken Bayer v. Sterling Drug, 153 F. Supp. 589 339 Fashion Originators v. FTC, 312 U. S. 457 1205 Fay v. Noia, 372 U. S. 391 574,684,685,690 Fédéral Baseball Club v. Nat. League, 259 U. S. 200 1205 FTC v. Ruberoid Co., 343 U. S. 470 598 Fenner v. Boykin, 271 U. S. 240 45,46 Ferguson v. Skrupa, 372 U. S. 726 384 Fernandez v. Mackell, 401 U. S. 66 93, 930, 984,985,987-989 First Nat. Bk. v. Missouri, 263 U. S. 640 627 First Protestant Church v. DeWolf, 358 Mich. 489 595 Flast v. Cohen, 392 U. S. 83 91,101 Fleming v. Mohawk Wreck- ing, 331 U. S. 111 739 Flemming v. Nestor, 363 U. S. 603 124 Fletcher v. Bryan, 361 U. S. 126 482 Florida Lime Growers v. Jacobsen, 362 U. S. 73 91,101 lxii TABLE OF CASES CITED Page Follett v. McCormick, 321 U. S. 573 462 Foman v. Davis, 371 U. S. 178 330,335 Fowler v. Rhode Island, 345 U. S. 67 462 Fox v. Standard Oil, 294 U. S. 87 163,191 Franklin v. State, 6 Md. App. 572 231 Freedman v. Maryland 380 U. S. 51 221 Friedberg v. United States, 348 U. S. 142 669 Gaertner v. State, 35 Wis. 2d 159 231 Gallagher v. United States, 191 Ct. Cl. 546 358 Gardner v. California, 393 U. S. 367 388 Garland, Ex parte, 4 Wall. 333 8,19,21 Garner v. Bd. of Pub. Works, 341 U. S. 716 166 Garner v. Teamsters, 346 U. S. 485 240 Garrison v. Louisiana, 379 U. S. 64 271-274,277,301 Garvin v. Cochran, 371 U. S. 27 482 Gas Ridge v. Suburban Properties, 150 F. 2d 363 332 Gaston County v. United States, 395 U. S. 285 430 Gelpcke v. Dubuque, 1 Wall. 175 698,741 Georgia v. Brailsford, 3 Dali. 1 511 Georgia v. Pennsylvania R. Co., 324 U. S. 439 498 Georgia v. Rachel, 384 U. S. 780 56 Georgia v. Stanton, 6 Wall. 50 496 Georgia v. Tennessee Cop-per, 206 U. S. 230 496, 506 Gersewitz v. New York, 326 U. S. 687 482 Gibson v. Florida Leg. Coin., 372 U. S. 539 6,7,180,197 Gideon v. Wainwright, 372 U. S. 335 391,653, 657, 692, 694,847, 965 Page Gilbert v. California, 388 U. S. 263 655,729 Gillette v. United States, 401 U. S. 437 1006,1007,1013 Ginzburg v. United States, 383 U. S. 463 212,215 Giordenello v. United States, 357 U. S. 480 564,569, 782 Girouard v. United States, 328 U. S. 61 445 Gitlow v. New York, 268 U. S. 652 74 Glona v. American Ins. Co., 391 U. S. 73 535, 536,552, 558 Goldberg v. Kelly, 397 U. S. 254 377-379,387 Golden v. Zwickler, 394 U. S. 103 42,58,101-103,119,122 Goldman v. United States, 316 U. S. 129 653, 748, 750, 773, 775 Goldsmith-Grant Co. v. United States, 254 U. S. 505 719,721 Gosa v. United States, 19 U. S. C. M. A. 327 359 Goss v. Illinois, 312 F. 2d 257 62 Great Lakes Co. v. Huffman, 319 U. S. 293 69-73, 115, 126-128 Great Northern R. Co. v. Sunburst Oil, 287 U. S. 358 698, 740, 742 Green, In re, 264 F. Supp. 849 517 Greenbelt Coop. Pub. Assn. v. Bresler, 398 U. S. 6 271,284,300 Greenblatt, In re, 253 App. Div. 391 159 Greene v. McElroy, 360 U. S. 474 256 Griffin v. California, 380 U. S. 609 230,673,728,729 Griffin v. Illinois, 351 U. S. 12 382- 386,388-391, 653, 965 Griswold v. Connecticut, 381 U. S. 479 692 Groshart v. United States, I 392 F. 2d 172 231 TABLE OF CASES CITED LXHI Page Grosso v. United States, 390 U. S. 62 670-676,684, 692, 700-714, 716-718, 722-724, 731-734, 810 Guarantee Co. v. Title Guar- anty Co., 224 U. S. 152 517 Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150 552 Gunn v. University Com., 399 U. S. 383 87, 89,86,1006 Guss v. Utah Labor Rela- tions Bd., 353 U. S. 1 240 Hamilton v. Regents, 293 U. S. 245 459,461,464 Hammond Packing v. Arkan- sas, 212 U. S. 322 378 Hans v. Louisiana, 134 U. S. 1 105 Hardin v. Kentucky Utilities, 390 U. S. 1 640, 641 Hardy v. Northwestern Sav. & Loan, 102 U. S. App. D. C. 371 961 Hardy Sait v. Illinois, 377 F. 2d 768 337 Hargrave v. Kirk, 313 F. Supp. 944 477 Harkrader v. Wadley, 172 U. S. 148 116 Harper v. Virginia Bd. of Elections, 383 U. S. 663 389,394, 551 Harrington v. California, 395 U. S. 250 570 Harris v. Ciccone, 417 F. 2d 479 358 Harris v. Nelson, 394 U. S. 286 490,660 Harris v. United States, 331 U. S. 145 648, 650, 659-665, 699, 783 Haynes v. United States, 390 U. S. 85 602-605, 709 Heike v. United States, 227 U. S.131 704 Helen, The, 72 F. 2d 772 739 Henry v. Collins, 380 U. S. 356 300 Hercules Service v. United States, 202 F. 2d 938 514, 519 Hill v. California, 401 U. S. 797 677 Page Hirabayashi v. United States, 320 U. S. 81 558 Hitchman Coal v. Mitchell, 245 U. S. 229 584 H. J. Heinz Co. v. Owens, 189 F. 2d 505 73 Hoffa v. United States, 385 U.S.293 749-752,784,785,787 Hoffman v. United States, 341 U. S. 479 704 Holdridge v. United States, 282 F. 2d 302 613 Holland v. United States, 348 U. S. 121 669 Honey v. Goodman, 432 F. 2d 333 62 Hooper v. Laird, 19 U. S. C. M. A. 329 359 Hosack v. Smiley, 276 F. Supp. 876 161 Hovey v. Elliott, 167 U. S. 409 377 Howard v. Stillwell & Bierce Mfg., 139 U. S. 199 339 Hulse v. Railroad Trainmen, 340 S. W. 2d 404 590,598 Hunt v. Rhodes, 1 Pet. 1 344 Hunter v. Erickson, 393 U. S. 385 551 Illinois v. Allen, 397 U. S. 337 22 Illinois ex rel. McCollum v. Bd. of Ed, 333 U. S. 203 452 In re. See name of party. International. For labor union, see name of trade. International Shoe v. Washington, 326 U. S. 310 500 Interstate Circuit v. Dallas, 390 U. S. 676 221 Irrésistible, The, 7 Wheat. 551 736 Jackson, Ex parte, 96 U. S. 727 790 Jackson v. Denno, 378 U. S. 368 653 Jacobellis v. Ohio, 378 U. S. 184 213 Jacobson v. Massachusetts, 197 U. S. 11 462 James v. Louisiana, 382 U. S. | 36 660,661 LXIV TABLE OF CASES CITED Page James v. United States, 366 U. S. 213 615 Jarrett v. Resor, 426 F. 2d 213 488 Jay Burns Baking Co. v. Bryan, 264 U. S. 504 384 Jeffreys v. Jeffreys, 58 Mise. 2d 1045 381 Jenkins v. Delaware, 395 U. S. 213 676 Jensen, Estate of, 162 N. W. 2d 861 559 Jenson v. Oison, 353 F. 2d 825 961 Johnson v. New Jersey, 384 U. S. 719 652, 655, 673-675, 695-697, 714, 723, 725, 729, 733 Johnson v. Tennessee, 214 U. S. 485 482 Johnson v. United States, 333 U. S. 10 781-783 Jones v. Cunningham, 371 U. S. 236 491 Jones v. United States, 357 U. S. 493 782 Jones v. United States, 362 U. S. 257 564, 566, 774, 776, 782 Josephson, In re, 218 F. 2d 174 416 Kanelos v. Kettler, 132 U. S. App. D. C. 133 331 Katz v. United States, 389 U. S. 347 653,654, 659, 660, 747-755, 758-761, 766, 769, 771, 775, 778, 780-786, 792-796 Katzenbach v. McClung, 379 U. S. 294 123 Katzenbach v. Morgan, 384 U. S. 641 792 Kaufman v. United States, 394 U. S. 217 490, 574, 660, 685-687, 694 Kawakita v. United States, 343 U. S. 717 832,833 Kelly v. King, 196 So. 2d 525 231 Kelsey v. Philadelphia Local No. 8, 419 F. 2d 491 251 Page Kennedy v. Mendoza-Marti- nez, 372 U. S. 144 108,124, 832 Ker v. California, 374 U. S. 23 564,772,783 Keyishian v. Regents, 385 U. S. 589 3,6,28,30,166, 183, 194, 195, 198, 199 Killough v. United States, 114 U. S. App. D. C. 305 225 King v. Moseley, 430 F. 2d 732 358 Kingsley Pictures v. Regents, 360 U. S. 684 163,215 Klahr, Application of, 102 Ariz. 529 19,20 Kline, In re, 70 Ohio St. 25 735 Klor’s v. Broadway-Hale Stores, 359 U. S. 207 1205 Knight v. Regents, 269 F. Supp. 339 161,178,190 Kolod v. United States, 390 U. S. 136 999 Konigsberg v. State Bar, 353 U. S. 252 3 Konigsberg v. State Bar, 366 U. S. 36 9,11-13, 15, 31, 159, 163, 166 Koran v. United States, 408 F. 2d 1321 750 Kremen v. United States, 353 U. S. 346 206,661 Labine v. Vincent, 401 U. S. 532 845 Labor Board. See NLRB. Ladner v. United States, 168 F. 2d 771 739 Lambert v. California, 355 U. S. 225 608,609 Landry v. Daley, 280 F. Supp. 938 53,63 Landry v. Daley, 288 F. Supp.200 63 Lane v. Brown, 372 U. S. 477 388 Lanza v. New York, 370 U. S. 139 774 Lanzetta v. New Jersey, 306 U. S. 451 195,214 Latney v. Ignatius, 135 U. S. App. D. C. 65 358 Lawlor v. Loewe, 235 U. S. 522 339 TABLE OF CASES CITED LXV Page Lawlor v. Nat. Screen Serv., 349 U. S. 322 340 Law Students Council v. Wadmond, 299 F. Supp. 117 32 Law Students Council v. Wadmond, 401 U. S. 154 9, 10, 24, 32, 34-36, 55 Leary v. United States, 395 U. S. 6 613 Lee Art Theater v. Virginia, 392 U. S. 636 221 Leh v. General Petroleum, 382 U. S. 54 336,337 Leiter Minerais v. United States, 352 U. S. 220 61,106 Levine, Application of, 97 Ariz. 88 20 Levy v. Louisiana, 391 U. S. 68 535,536,539,550-552 Lewis v. American Fed. of State EmpL, 407 F. 2d 1185 246 Lewis v. United States, 348 U. S. 419 671, 674, 722, 731, 733, 734 Lewis v. United States, 385 U. S. 206 749,752,784-787 Leyra v. Denno, 347 U. S. 556 965 Lilienthal’s Tobacco v. United States, 97 U. S. 237 308 Linkletter v. Walker, 381 U. S. 618 574,651-656,660, 665, 666, 672, 676, 677, 680, 696, 702, 714, 723, 724, 731, 743, 754, 847 List v. Pennsylvania, 131 U. S. 396 482,483 Local. For labor union, see also name of trade. Local 100 v. Borden, 373 U. S. 690 237,239,240,253 Local 167 v. United States, 291 U. S. 293 599 Local 207 v. Perko, 373 U. S. 701 253 Lochner v. New York, 198 U. S. 45 384,385 Locklin v. Switzer Bros., 299 F. 2d 160 332 Page Loeb v. Columbia Trustées, 179 U. S. 472 742 Londoner v. Denver, 210 U. S. 373 378 Long v. District Court, 385 U. S. 192 383,388,966 Long v. United States, 387 F. 2d 377 750 Lopez v. United States, 373 U. S. 427 749- 756, 759-761, 764, 771, 775-778, 784-788, 791 Louisville & N. R. Co. v. Schmidt, 177 U. S. 230 378 Lovely v. United States, 175 F. 2d 312 739 Loving v. Virginia, 388 U. S. 1 376,390,692,728 Lyeth v. Hoey, 305 U. S. 188 539 Mac. See also Mc. Macauley v. Waterman S. S. Corp., 327 U. S. 540 71 Machinists v. King, 335 F. 2d 340 241 Mack v. Florida Bd. of Den-tistry, 296 F. Supp. 1259; 430 F. 2d 862 960 Mack v. Pepper, 192 So. 2d 66 960 Mackey v. United States, 401 U. S. 667 612,655,657, 724, 734, 769, 793, 807 Maddox v. United States, 337 F. 2d 234 771 Mager v. Grima, 8 How. 490 539 Malloy v. Hogan, 378 U. S. 1 230,391,604 Malone v. Emmet, 278 F. Supp. 193 126 Mandoli v. Acheson, 344 U. S 133 833 Maney v. United States, 278 U. S. 17 830 Manhattan Life Ins. v. Cohen, 234 U. S. 123 299 Mapp v. Ohio, 367 U. S. 643 232, 564, 569, 651-654, 659, 663, 666, 692, 772 Marbury v. Madison, 1 Cranch 137 52,678 415-649 0 - 72 -5 LXVI TABLE OF CASES CITED Page Marchetti v. United States, 390 U. S. 39 604, 606, 670-676 684, 692, 700-714, 716-718, 722-724, 731-734, 810 Marcus v. Search Warrant, 367 U. S. 717 204 Maryland Cas. Co. v. Pacific Coal & Oil, 312 U. S. 270 102,123 Mason v. Hills Land & Cat-tle Co, 119 Colo. 404 523 Massachusetts v. Mellon, 262 U. S. 447 512 Massachusetts v. Missouri, 308 U. S. 1 498 Massey v. United States, 291 U. S. 608 735 Matthews v. Rodgers, 284 U. S. 521 128 Mayberry v. Pennsylvania, 400 U. S. 455 22, 730 Maynard v. Hill, 125 U. S. 190 389 Mc. See also Mac. McBee v. Bomar, 296 F. 2d 235 416 McCollum v. Bd. of Ed, 333 U. S. 203 452 McConnell v. Rhay, 393 U. S. 2 653,724,847 McCray v. Illinois, 386 U. S. 300 566,567 McDonald v. United States, 335 U. S. 451 660,782,783 McGowan v. Maryland, 366 U. S. 420 452 McKenna v. Austin, 77 U. S. App. D. C. 228 344,348 McLaughlin v. Florida, 379 U. S. 184 385,551 McNeese v. Bd. of Ed, 373 U. S. 668 62,119,478 Méat Cutters v. Jewel Tea Co, 381 U. S. 676 238,319 Mempa v. Rhay, 389 U. S. 128 " 653 Mercer v. Dillon, 19 U. S. C. M. A. 264 359 Meyer v. Nebraska, 262 U. S. 390 376 Meyer Dairy v. NLRB, 429 F. 2d 697 140 Page Miami Parts v. Champion Spark Plug, 402 F. 2d 83 345 Michigan v. Morton Sait, 259 F. Supp. 35 337 Milky Way Productions v. Leary, 305 F. Supp. 288 92,97,100,101 Miller v. Gladden, 341 F. 2d 972 686 Milton v. Wainwright, 306 F. Supp. 929 686 Mine Workers v. Gibbs, 383 U. S. 715 91,309-311,318 Mine Workers v. Illinois Bar Assn, 389 U. S. 217 51,580-586, 595, 596, 599, 600 Mine Workers v. Penning- ton, 381 U. S. 657 311-316 Minnesota Mining v. N. J. Wood Finishing, 381 U. S. 311 336,337 Minor v. Happersett, 21 Wall. 162 841 Minor v. United States, 396 U. S. 87 606 Miranda v. Arizona, 384 U. S. 436 222-226,229- 232, 673, 674, 692, 729 Mississippi v. Johnson, 4 Wall. 475 496 Missouri v. Illinois, 180 U. S. 208 496 Missouri v. Illinois, 200 U. S. 496 501,506 Mitchell v. Donovan, 398 U. S. 427 129 Moe Light, Inc. v. Foreman, 238 F. 2d 817 339 Momand v. Universal Film, 43 F. Supp. 996 338,339 Momand v. Universal Film, 172 F. 2d 37 336-338 Monitor Patriot Co. v. Roy, 401 U. S. 265 299,300 Monroe v. Pape, 365 U. S. 167 62,478 Montana v. Kennedy, 366 U. S. 308 823,826,831 Moody v. Flowers, 387 U. S. 97 86-90,951 Moorehead v. Hunter, 198 F. 2d 52 739 TABLE OF CASES CITED LXVH Page Moragne v. States Marine Lines, 398 U. S. 375 681 Morey v. Doud, 354 U. S. 457 548,551, 552,558 Morgan v. United States, 304 U. S. 1 378 Morissette v. United States, 342 U. S. 246 607,609,614,719 Morris v. Schoonfield, 399 U. S. 508 398 Moss v. United States, 72 F. 2d 30 739 Moviecolor Ltd. v. Eastman Kodak, 288 F. 2d 80 334 Mullane v. Central Hanover Tr., 339 U. S. 306 378-382 Murdock v. Pennsylvania, 319 U. S. 105 462 Murphy v. Waterfront Comm’n, 378 U. S. 52 606,707,710, 728 Napue v. Illinois, 360 U. S. 264 284 NAACP v. Alabama, 357 U. S. 449 4,6,176,197,466 NAACP v. Alabama, 377 U. S. 288 35 NAACP v. Button, 371 U. S. 415 118, 194, 580-586, 599 NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175 239 National Trading Corp. v. General Elec. Co., 15 F. R. D. 379 334 Near v. Minnesota, 283 U. S. 697 204,207 Nebraska v. Wyoming, 325 U. S. 589 511 Negre v. Larsen, 401 U. S. U. S. 437 1006,1007 Nelson v. George, 399 U. S. 224 490 Nerbonne v. Hill, 70 F. 2d 1006 740 New Jersey v. Morton Sait, 387 F. 2d 94 337 New Jersey v. New York City, 283 U. S. 473 496, 506 New York v. New Jersey, 256 U. S. 296 496,501,502 Page New York City v. Rassner, 127 F. 2d 703 514,519 New York Times v. Sullivan, 376 U. S. 254 118, 270-278, 282, 284, 290-294, 298-301, 683 Nicholas v. United States, 384 U. S. 678 517-519 Niemotko v. Maryland, 340 U. S. 268 284 Norton v. Shelby County, 118 U. S. 425 741,743 Ocala Star-Banner v. Dam-ron, 401 U. S. 295 272,274 O’Callahan v. Parker, 390 F. 2d 360 362 O’Callahan v. Parker, 395 U. S. 258 356,357,360, 362-370 O’Connor v. O’Connor, 315 F. 2d 420 961 Odekirk v. Ryan, 85 F. 2d 313 739 Ohlson v. Phillips, 304 F. Supp. 1152 162 Olmstead v. United States, 277 U. S. 438 188, 653, 748-750, 775-780 One 1958 Plymouth v. Penn- sylvania, 380 U. S. 693 718 On Lee v. United States, 343 U. S. 747 747,750,751,753-756, 758-761, 764, 768, 769, 771, 773-778, 780, 781, 784, 786, 788-796 Opp Cotton Mills v. Adm’r, 312 U. S. 126 378,379 Oregon v. Mitchell, 400 U. S. 112 902 Osborn v. Bank of United States, 9 Wheat. 738 105,106, 822 Osborn v. United States, 385 U S 323 760,771,777-782,792 O’Shea v. N. Y., C. & St. L. R. Co., 105 F. 559 347 Ott v. Mississippi Barge Line, 336 U. S. 169 71 Pacific Live Stock v. Oregon Water Bd., 241 U. S. 440 525 LXVIII TABLE OF CASES CITED Page Pacific States Box Co. v. White, 296 U. S. 176 415 Palko v. Connecticut, 302 U. S. 319 385, 656,666, 693-695 Palmyra, The, 12 Wheat. 1 719 Parks v. Electrical Workers, 314 F. 2d 886 241 Pâte v. Robinson, 383 U. S. 375 965 Paul v. Dade County, 419 F. 2d 10 ' 961 Pennoyer v. McConnaughy, 140 U. S. 1 106 Pennywell v. George, 164 La. 630 544 People v. Barry, 237 Cal. App. 2d 154 231 People v. Campos, 184 Cal. App. 2d 489 802 People v. Fiedler, 30 App. Div. 2d 476 771 People v. Harris, 31 App. Div. 2d 828 229 People v. Kitchens, 46 Cal. 2d 260 802 People v. Kulis, 18 N. Y. 2d 318 229,231 People v. Lopez, 269 Cal. App. 2d 461 803 People v. Luna, 37 111. 2d 299 231 People v. Miller, 193 Cal. App. 2d 838 802 People v. Wilson, 20 Mich. App. 410 231 Pepsi-Cola Co. v. NLRB. 409 F. 2d 676 ' 140 Ferez v. Brownell, 356 U. S. 44 822 Perez v. Ledesma, 401 U. S. 82 58, 76, 92, 204, 221, 962, 984, 990 Perkins v. Elg, 307 U. S. 325 832 Perma Life Mufliers v. Int’l Parts Corp., 392 U. S. 134 340 Peters, In re, 221 App. Div. 607 159 Peyton v. Rowe, 391 U. S. 54 491 Phillips v. Comm’r, 283 U. S. 589 127 Page Phoenix v. Kolodziejski, 399 U. S. 204 743 Piccirillo v. New York, 400 U. S. 548 606, 611, 662, 705, 707, 710 Pierce v. Society of Sisters, 268 U. S. 510 115 Pierce v. United States, 314 U. S. 306 214 Pittsburgh Plate Glass v. NLRB, 313 U. S. 146 139,141 Plessy v. Ferguson, 163 U. S. 537 551 Pollard’s Lessee v. Hagan, 3 How. 212 508 Porter v. Dicken, 328 U. S. 252 61 Portnow, In re, 253 App. Div. 395 159 Power Reactor Co. v. Elec-tricians, 367 U. S. 396 434 Prentis v. Atlantic Coast Line Co., 211 U. S. 210 110 Presbyterian Church v. Hull Church, 393 U. S. 440 458 Preston v. United States, 376 U. S. 364 660 Price v. Georgia, 398 U. S. 323 846 Public Serv. Comm’n v. Brashear Freight Lines, 306 U. S. 204 87 Public Serv. Comm’n v. Wy-coff Co., 344 U. S. 237 71, 72, 124, 127, 129 Radovich v. Nat. Football League, 352 U. S. 445 340 Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496 110 Railroad Trainmen, In re, 13 111. 2d 391 589,592 Railroad Trainmen v. Virginia State Bar, 207 Va. 182 592 Railroad Trainmen v. Virginia State Bar, 377 U. S. 1 578-586,591,592,597,599 Raley v. Ohio, 360 U. S. 423 299 Ramsey v. UMW 265 F. Supp. 388 305-307,312,317 Ramsey v. UMW, 416 F. 2d 655 307 TABLE OF CASES CITED LXIX Page Randall v. U. S. Marshal, 143 F. 2d 830 739 Rea v. United States, 350 U. S. 214 117 Reck v. Pâte, 367 U. S. 433 687 Reck v. Ragen, 172 F. Supp. 734 687 Redrup v. New York, 386 U. S. 767 219,1006 Reems, Succession of, 134 La. 1033 544 Reetz v. Bozanich, 397 U. S. 82 478,904 Rehberg v. United States, 174 F. 2d 121 739 Reina v. United States, 364 U. S. 507 707 Rekant v. Schochtay-Gasos Local, 320 F. 2d 271 241 Relford v. Commandant, 409 F. 2d 824 362 Rescue Army v. Municipal Court, 331 U. S. 549 153 Retail Clerks v. Schermer-horn, 375 U. S. 96 239 Riley v. Industrial Finance Serv., 157 Tex. 306 345 Rinaldi v. Yeager, 384 U. S. 305 388 Rives v. O’Hearne, 64 App. D. C. 48 739 Roberts v. LaVallee, 389 U. S. 40 383,388,965 Roberts v. Russell, 392 U. S. 293 653,724 Rochin v. California, 342 U. S. 165 662 Rockefeller v. Catholic Medical Center, 397 U. S. 820 951 Rogers v. Missouri Pac. R. Co., 352 U. S. 500 963 Rooker v. Fidelity Tr. Co., 263 U. S. 413 961 Rorick v. Comm’rs, 307 U. S. 208 93 Rosado v. Wyman, 397 U. S. 397 55 Rosen v. Painters, 198 F. Supp. 46 246 Roth v. United States, 354 U. S. 476 118,215,272 Page Royall, Ex parte, 117 U. S. 241 130 Rudick v. Laird, 412 F. 2d 16 491 Rugendorf v. United States, 376 U. S. 528 564 Rusk v. Cort, 369 U. S. 367 410 St. Amant v. Thompson, 390 U. S. 727 276, 284, 285, 291, 292, 301 Samuels v. Mackell, 401 U. S. 66 41,81,86,90,93, 104, 122, 203, 220, 930, 962, 984, 985, 987-989 San Antonio Conserv. Soc. v. Texas Hwy. Dept., 400 U. S. 968 422 Sanders v. United States, 373 U. S. 1 685-687,690 San Diego Council v. Gar- mon, 359 U. S. 236 237,240,247,253 Savorgnan v. United States, 338 U. S. 491 831 Scales v. United States, 367 U. S. 203 9,165 Schenley Industries v. New Jersey Wholesalers, 272 F. Supp. 872 339 Schilling v. Rogers, 363 U. S. 666 415 Schneider v. Rusk, 377 U. S. 163 469, 820, 821, 827, 834, 839 Schneider v. Smith, 390 U. S. 17 6,176,194,197 Schneider v. State, 308 U. S. 147 6,51,379 Schroeder v. New York, 371 U. S. 208 377 Schware v. Bar Examiners, 353 U. S. 232 3,8,21,159,246 Screws v. United States, 325 U. S. 91 614 SEC v. Chenery Corp., 318 U. S. 80 419 Sélective Draft Law Cases, 245 U. S. 366 452 Shapiro v. United States, 335 U. S. 1 706, 708, 709 Shaughnessy v. Accardi, 349 U. S. 280 420 LXX TABLE OF CASES CITED Page Shelton v. Tucker, 364 U. S. 479 4,6,28,31,32,197,466 Sherbert v. Verner, 374 U. S. 398 379,385,462 Sicurella v. United States, 348 U. S. 385 446,448 Siebold, Ex parte, 100 U. S. 371 684,693,727,741 Siler v. Louisville & N. R. Co., 213 U. S. 175 91 Silverman v. United States, 365 U. S. 505 748,773-776,785 Silvero v. Chief of Naval Training, 428 F. 2d 1009 358 Singer v. United States, 323 • U. S. 338 482,484 Sipes v. United States, 321 F. 2d 174 607,614,616 Skinner v. Oklahoma, 316 U. S. 535 376,385,551 Slaughter-House Cases, 16 Wall. 36 842 Smith v. Bennett, 365 U. S. 708 384,386, 388,966 Smith v. Cahoon, 283 U. S. 553 551 Smith v. California, 361 U. S. 147 215,276,613 Smith v. United States, 348 U. S. 147 669 Smith v. Wilson, 273 U. S. 388 109 Sniadach v. Family Finance Corp., 395 U. S. 337 377,379,384 Spann v. State, 448 S. W. 2d 128 231 Speiser v. Randall, 357 U. S. 513 4,6,28,162,163, 177, 189, 193, 276, 664 Spencer v. Texas, 385 U. S. 554 690,695 Spevack v. Klein, 385 U. S. 511 184 Spielman Motor Sales v. Dodge, 295 U. S. 89 45 Spinelli v. United States, 393 U. S. 410 564,567,573,574 Stanley v. Georgia, 394 U. S. 557 188,661,692 State. See also name of State. Page State v. Addington, 2 Bailey (S. C.) 516 736 State v. Brewton, 247 Ore. 241 231 State v. Butler, 19 Ohio St. 2d 55 231 State v. Catrett, 276 N. C. 86 231 State v. Galasso, 217 So. 2d 326 231 State v. Grant, 77 Wash. 2d 47 231 State v. Kimbrough, 109 N. J. Super. 57 231 State v. Turnbow, 67 N. M. 241 231 State ex rel. Beck v. Lush, 170 Neb. 376 590 Steele v. Louisville & N. R. Co., 323 U. S. 192 250 Stefanelli v. Minard, 342 U.. S. 117 84,89,117,984 Sterling v. Constantin, 287 U. S. 378 91 Stern v. Comm’r, 137 F. 2d 43 347 Stolar, In re, 401 U. S. 23 15,159,181,182,197 Stovall v. Denno, 388 U. S. 293 653, 655, 659,662, 663,671, 695, 723, 725, 729, 847 Strauder v. West Virginia, 100 U. S. 303 385 Street v. New York, 394 U. S. 576 247,692 Stromberg v. California, 283 U. S. 359 118,208,247,252 Stroud v. United States, 251 U. S. 15 790 Suckow Borax Mines v. Bo- rax Consolidated, 185 F. 2d 196 338 Summers, In re, 325 U. S. 561 3,176,461 Sun Theatre v. RKO Pic-tures, 213 F. 2d 284 336 Superintendent of penal or correctional institution. See name of superintendent. Swartz v. New York Central R. Co., 323 F. 2d 713 331 TABLE OF CASES CITED lxxi Page Page Sweezy v. New Hampshire, Twentieth Century-Fox v. 354 U. S. 234 162 Winchester Drive-In, 351 Taffs v. United States, 208 F. 2d 925 345, 346 F. 2d 329 447 Twining v. New Jersey, 211 Takahashi v. Fish & Game U- S- ?8 $89 Comm’n, 334 U. S. 410 385 Stat® Corp. v. Sealy, Tehan v. Shott, 382 U. S. RJ™- q 338 406 655,673,675,714, Uda11 v’ Tal ’ 380 U- S- 723, 728, 730, 733, 743 uilmann v. United States, Teitel Film Corp. v. Cusack, 359 jj g 422 711 390 U. S. 139 221 Union. For labor union, see Temple v. Commonwealth, name of trade. 75 Va. 892 705 United. For labor union, Tennessee Coal Co. v. see name of trade. UMW, 416 F. 2d 1192 305,308 United States v. Adams, 19 Terminiello v. Chicago, 337 U. S. C. M. A. 75 359 U. S. 1 163 United States v. Alaska S. S. Terrace v. Thompson, 263 Co, 253 U. S. 113 123 U. S. 197 59,106,115,210 United States y. Allen, 19 Terry v. Ohio, 392 U. S. 1 TT V; C- A- 31 . 573, 660, 661, 761, 781- UnJ,ted £ Ahimmum 784 787 Co, 148 F' 2d 416 501 m vnï H tt a United States v. Arizona, lexas v. Mitchell, 400 U. S. ^qq pj g jj2 902 112 902 United States v. Armes, 19 Thomas v. Collms, 323 U. S. u. S. C. M. A. 15 358 516 6 United States v. Armstrong, Thompson v. Louisville, 362 19 U. S. C. M. A. 5 358 U. S. 199 246, 384, 726,1013 United States v. Balint, 258 Thornhill v. Alabama, 310 U. S. 250 609 U. S. 88 47 United States v. Ballard, 322 Thorpe v. Housing Author- U. S. 78 457 ity, 393 U. S. 268 418,419,683 United States v. Barrow, Time, Inc. v. Pape, 401 U. S. 363 F. 2d 62 813 279 301 United States v. Beeker, 18 Tisi v. Tod, 264 U. S. 131 246 U. S. C. M. A. 563 358 Toolson v. New York Yan- United States v. Blackwell, kees, 346 U. S. 356 1205 19 U. S. C. M. A. 196 359 Torcaso v. Watkins, 367 United States v. Blue, 384 U. S. 488 450,468 U. S. 251 260 Toth v. Quarles, 350 U. S. United States v. Borys, 18 11 363 U. S. C. M. A. 547 358 Toucey v. New York Life United States v. Boyd, 18 Ins. Co, 314 U. S. 118 43, 61 U. S. C. M. A. 581 358 Townsend v. Sain, 372 U. S. United States v. Bride, 308 293 685 F. 2d 470 720 Truax v. Raich, 239 U. S. United States v. Bryan, 19 33 106 U. S. C. M. A. 184 359 Trupiano v. United States, United States v. Calamaro, 334 U. S. 699 782,783 354 U. S. 351 707 Turner v. United States, 396 United States v. Calderon, U. S. 398 247,613 348 U. S. 160 669 LXXII TABLE OF CASES CITED Page United States v. California, 332 U. S. 19 508 United States v. Camacho, 19 U. S. C. M. A. 11 358 United States v. Carroll, 398 F. 2d 651 448 United States v. Castro, 18 U. S. C. M. A. 598 358 United States v. Celestine, 215 U. S. 278 261 United States v. Chambers, 382 F. 2d 910 813 United States v. Chambers, 291 U. S. 217 698,735,739,740 United States v. Chandler, 18 U. S. C. M. A. 593 358 United States v. Chemical Foundation, 272 U. S. 1 415 United States v. Chicago, 400 U. S. 8 434 United States v. Cochran, 18 U. S. C. M. A. 588 358 United States v. Cook 19 U. S. C. M. A. 13 ’ 358 United States v. Covington, 395 U. S. 57 261 United States v. Crapo, 18 U. S. C. M. A. 594 358 United States v. Curtiss- Wright Corp., 299 U. S. 304 739 United States v. Daniels, 19 U. S. C. M. A. 529 359 United States v. Davis, 20 U. S. C. M. A. 27 359 United States v. Decker, 292 F. 2d 89 614 United States v. DeRonde, 18 U. S. C. M. A. 575 358 United States v. Dotter- weich, 320 U. S. 277 609 United States v. Dunne, 173 F. 254 482 United States v. Easter, 19 U. S. C. M. A. 68 359 United States v. Edwards, 368 F. 2d 722 721 United States v. Everson, 19 U. S. C. M. A. 70 359 United States v. Ewell, 383 U. S. 116 260 Page United States v. Fields, 19 U. S. C. M. A. 119 359 United States v. 47 Bottles, 320 F. 2d 564 331 United States v. Fox, 403 F. 2d 97 231 United States v. Frazier, 19 U. S. C. M. A. 40 ’ 359 United States v. Fruehauf, 365 U. S. 146 152 United States v. Fryman, 19 U. S. C. M. A. 71 359 United States v. Georgia Pub. Serv. Comm’n, 371 U. S. 285 91,101 United States v. Gill, 19 U. S. C. M. A. 93 359 United States v. Ginsberg, 243 U. S. 472 830 United States v. Goldman, 277 U. S. 229 260 United States v. Griffin, 303 U. S. 226 91 United States v. Haagenson, 19 U. S. C. M. A. 332 359 United States v. Hallahan, 19 U. S. C. M. A. 46 359 United States v. Hargrave, 20 U. S. C. M. A. 27 359 United States v. Hark, 320 U. S. 531 260, 739 United States v. Harris, 18 U. S. C. M. A. 596 358 United States v. Harriss, 347 U. S. 612 215 United States v. Haughton, 413 F. 2d 736 448 United States v. Hayman, 342 U. S. 205 490,681 United States v. Henderson, 18 U. S. C. M. A. 601 358 United States v. Higgin-botham, 19 U. S. C. M. A. 73 359 United States v. Hoffman, 335 U. S. 77 260 United States v. Hougham, 364 U. S. 310 335 United States v. Huff, 19 U. S. C. M. A. 56 359 United States v. Idaho, 400 U. S. 112 902 TABLE OF CASES CITED LXXHI Page United States v. Illinois Central R. Co., 291 U. S. 457 378,379 United States v. Jackson, 390 F. 2d 317 751 United States v. Jackson, 390 U. S. 570 846 United States v. Jeffers, 342 U. S. 48 782 United States v. Johnson, 319 U. S. 503 482,484 United States v. Jones, 292 F. Supp. 1001 762,771,778,782 United States v. Jorn, 400 U. S. 470 1007 United States v. Kahriger, 345 U. S. 22 671, 674, 700, 701, 713, 722, 731, 733, 734 United States v. Kaufer, 406 F. 2d 550 751, 771 United States v. Kauten, 133 F. 2d 703 443,455 United States v. Keaton, 19 U. S. C. M. A. 64 359 United States v. Knox, 396 U. S. 77 225,705 United States v. Lâcher, 134 U. S. 624 214 United States v. Lefkowitz, 285 U. S. 452 782 United States v. Lovejoy, 20 U. S. C. M. A. 18 359 United State v. Macintosh, 283 U. S. 605 444, 445, 453, 461, 464, 465, 468 United States v. Mack, 112 F. 2d 290 609 United States v. McFadden, 309 F. Supp. 502 446 United States v. McGonigal, 19 U. S. C. M. A. 94 359 United States v. Mersky, 361 U. S. 431 258,261-264 United States v. Monia, 317 U. S. 424 260 United States v. Morgan, 313 U. S. 409 420 United States v. Morisseau, 19 U. S. C. M. A. 17 358 United States v. Morley, 20 U. S. C. M. A. 179 359 Page United States v. Murdock, 284 U. S. 141 261 United States v. Murdock, 290 U. S. 389 615 United States v. Nardello, 393 U. S. 286 605 United States v. National Dairy, 372 U. S. 29 194 United States v. National Lead, 332 U. S. 319 599 United States v. Ness, 245 U. S. 319 830 United States v. New York C. & H. R. R. Co., 164 F. 324 482 United States v. Nichols, 19 U. S. C. M. A. 43 359 United States v. One Ford Coach, 307 U. S. 219 721 United States v. One Ford Coupe, 272 U. S. 321 719 United States v. One 1958 Pontiac, 298 F. 2d 421 720 United States v. One 1957 Oldsmobile, 256 F. 2d 931 720 United States v. One 1965 Buick, 392 F. 2d 672 717 United States v. Oregon, 366 U. S. 643 548 United States v. Ortiz, 20 U. S. C. M. A. 21 359 United States v. Owen, 415 F. 2d 383 448 United States v. Pasquinzo, 334 F. 2d 74 771 United States v. Paxiao, 18 U. S. C. M. A. 608 358 United States v. Peak, 19 U. S. C. M. A. 19 358 United States v. Peterson, 19 U. S. C. M. A. 319 359 United States v. Petrillo, 332 U. S. 1 151 United States v. Pinto, 394 F. 2d 470 231 United States v. Plamondon, 19 U. S. C. M. A. 22 358 United States v. Pomeroy, 152 F. 279 482,483 United States v. Prather, 18 U. S. C. M. A. 560 358 United States v. Price, 9 How. 83 344 LXXIV TABLE OF CASES CITED Page United States v. Rabinowich, 238 U. S. 78 260 United States v. Rabinowitz, 339 U. S. 56 648, 650, 659-665, 699, 783 United States v. Rego, 19 U. S. C. M. A. 9 358 United States v. Reisinger, 128 U. S. 398 739 United States v. Relford, 14 U. S. C. M. A. 678 361 United States v. Republic Steel, 362 U. S. 482 508 United States v. Riehle, 18 U. S. C. M. A. 603 358 United States v. Robel, 389 U. S. 258 3,6,9,28, 30, 166, 183, 184, 194 United States v. Rose, 19 U. S. C. M. A. 3 358 United States v. Safford, 19 U. S. C. M. A. 33 359 United States v. Sampsell, 193 F. 2d 154 514, 519 United States v. Seeger, 380 U. S. 163 444-447, 451, 453, 457, 467, 468 United States v. Sharkey, 19 U. S. C. M. A. 26 358 United States v. Shockley, 18 U. S. C. M. A. 610 358 United States v. Sisson, 297 F. Supp. 902 446, 463, 464 United States v. Sisson, 399 U. S. 267 259,262 United States v. Smith, 321 F. Supp. 424 757 United States v. Smith, 18 U. S. C. M. A. 609 358 United States v. Snyder, 20 U. S. C. M. A. 102 359 United States v. Spector, 343 U. S. 169 605 United States v. Stevenson, 19 U. S. C. M. A. 69 359 United States v. Stone, 232 F. Supp. 396 771, 775 United States v. Sullivan, 274 U. S. 259 704,705,708 United States v. Swift & Co., 286 U. S. 106 595 United States v. Thompson, 251 U. S. 407 260 Page United States v. Tynen, 11 Wall. 88 735, 739 United States v. U. S. Coin & Currency, 401 U. S. 715 676,677, 680, 693, 696, 697, 700 United States v. Ventresca, 380 U. S. 102 564, 566, 782 United States v. Wade, 388 U. S. 218 655, 729 United States v. Weinstein, 19 U. S. C. M. A. 29 358 United States v. White, 401 U. S. 745 680 United States v. Williams, 18 U. S. C. M. A. 605 358 United States v. Wills, 20 U. S. C. M. A. 8 359 United States v. Wiltberger, 5 Wheat. 76 214 United States v. Wong Kim Ark, 169 U. S. 649 828-831, 840, 841 United States v. Wysingle, 19 U. S. C. M. A. 81 359 United States v. Zizzo, 338 F. 2d 577 813 U. S. ex rel. See name of real party in interest. Universal Caméra v. NLRB, 340 U. S. 474 143 Usner v. Luckenbach Corp., 400 U. S. 494 930 Uveges v. Pennsylvania, 335 U. S. 437 848 Vajtauer v. Immigration Comm’r, 273 U. S. 103 246 Vars v. Boilermakers, 320 F. 2d 576 246,251 Velarde v. People, 171 Colo. 261 231 Vermont v. Cayuga Sait, 276 F. Supp. 970 337 Von Cleef v. New Jersey, 395 U. S. 814 661,662 Voorhees v. Hill, 72 F. 2d 826 740 Walder v. United States, 347 U. S. 62 224-230 Walz v. Tax Comm’n, 397 U. S. 664 449, 450, 452, 454, 457 TABLE OF CASES CITED LXXV Page Warden. See also name of warden. Warden v. Hayden, 387 U. S. 294 661,778,779,783 Watson, In re, 19 U. S. C. M. A. 401 359 Watson v. Buck, 313 U. S. 387 46,49,53,210,211 Weber v. Anheuser-Busch, 348 U. S. 468 240 Weedin v. Chin Bow, 274 U. S. 657 823,828,834 Weeks v. United States, 232 U. S. 383 228,663 Welsh v. United States, 398 U. S. 333 443, 447, 451-454, 468, 1013 Western Community Org. v. Weaver, 294 F. Supp. 433 416 Western Express v. Smeltzer, 88 F. 2d 94 343 West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 6,10,179,467,469 Wheeler v. United States, 382 F. 2d 998 231 White v. Maryland, 373 U. S. 59 653 Whitehill v. Elkins, 389 U. S. 54 195,199 Whiteley v. Meacham, 416 F. 2d 36 562 Whiteley v. State, 418 P. 2d 164 561,572 Whiteley v. Wyoming, 293 F. Supp.381 561 Whitney v. California, 274 U. S. 357 40, 41,60, 74,118,208 WHYY v. Glassboro, 393 U. S. 117 299 Wilkinson v. United States, 365 U. S. 399 4 Williams v. Illinois, 399 U. S. 235 397-401 Williams v. Miller, 317 U. S. 599 46 Williams v. North Carolina, 325 U. S. 226 393 Williams v. Oklahoma City, 395 U. S. 458 383,965 Williams v. Shaffer, 385 U. S. 1037 385 Page Williams v. United States, 418 F. 2d 159 648-650,657 Williams v. United States, 341 U. S. 97 215 Williams v. United States, 401 U. S. 646 672,675, 676, 681, 695, 696, 699, 725, 726, 731, 754, 802 Williamson v. Lee Optical, 348 U. S. 483 548 Winchester Drive-In v. Twentieth Century - Fox, 232 F. Supp. 556 345 Windsor v. McVeigh, 93 U. S. 274 377,378 Winship, In re, 397 U. S. 358 378, 394,664 Winters v. New York, 333 U. S. 507 65,214 Wisconsin v. Constantineau, 400 U. S. 433 55,122, 384,478 Wisconsin v. Illinois, 278 U. S. 367 511 Wisconsin v. Pélican Ins. Co., 127 U. S. 265 496, 500 Wong Sun v. United States, 371 U. S. 471 748, 773, 775, 782 Wong Wing Hang v. INS, 360 F. 2d 715 416 Wright v. Georgia, 373 U. S. 284 215 Wright v. United States, 19 U. S. C. M. A. 328 359 Wyman v. James, 400 U. S. 309 845 Yakus v. United States, 321 U. S. 414 379 Yates v. United States, 354 U. S. 298 175 Yeaton v. United States, 5 Cranch 281 735, 739 Yick Wo v. Hopkins, 118 U. S. 356 548,693 Yonkers v. United States, 320 U. S. 685 417 Young, Ex parte, 209 U. S. 123 43,46, 85,10&- 111, 116, 117, 120, 122 Young v. State, 455 P. 2d 889 346 LXXVI TABLE OF CASES CITED Page Younger v. Harris, 401 U. S. 37 68,69,81,84, 85, 93, 203, 210, 211, 220, 930, 962, 984-989 Zemel v. Rusk, 381 U. S. 1 92,101 Zenith Radio v. Hazeltine Research, 401 U. S. 321 486 Page Zenor v. Vogt, 434 F. 2d 189 358 Zorach v. Clauson, 343 U. S. 306 450,469 Zwickler v. Koota, 389 U. S. 241 57,90,101, 106, 110, 117, 118, 122, 123, 126, 129, 130, 211 TABLE OF STATUTES CITED (A) Statutes of the United States Page Page 1789, Sept. 24, c. 20, 1 Stat. 1909, Feb. 9, c. 100, 35 Stat. 73 ......................... 37 614, as amended, 1790, Mar. 26, c. 3, 1 Stat. §2 .......... 646,745 103........................ 815 1910, June 18, c. 309, 36 1793, Mar. 2, c. 22, 1 Stat. Stat. 539, § 17... 82 § 5 37 1913, Mar. 4, c. 160, 37 Stat. 1795, Jan. 29, c/àÔ,' ‘1 Stat. n1013 • ' ' ‘ a oq aï V 82 414, §3............ 815 ^Trii’ 6’ 38 Stat’ ai7 28’ 2 SUt- 1914,0^15, c 323;38 Stat. §734°’ as amende2d’486 635 ........................ 37 §§4B, 5, 16....... 321 1855, Feb. 10, c. 71, 10 Stat. § 20 302 604, § 1........... 815 1917, May 18, c. 15, 40 Stat. 1864, Feb. 24, c. 13, 13 Stat. 76, §4........... 437 6, § 17........... 437 1919, Oct.28, c. 85, 41 Stat. June 3, c. 106, 13 Stat. 305 .............. 715 99 ........................ 617 1925, Feb. 13, c. 229, 43 Stat. 1866, Apr. 9, c. 31, 14 Stat. 93g .............. 82 27 815 1926, May 8, c. 273,'44 Stat. 1871, Feb. 25, c. 71, 16 Stat. 416 ............. 37 431, § 4........... 715 May 27, c. 406, 44 Apr. 20, c. 22, 17 Stat. stat. 662, § 15... 513 13, § 1......... 37,82 1930, June 17, c. 497,46 Stat. 1875, Mar. 3, c. 137, 18 Stat. 590, as amended, 470 ..................... 37,82 §304 ............. 254 1890, July 2, c. 647, 26 Stat. § 618 ......... 715 209, as amended... 302, 1932, Mar. 23, c. 90, 47 Stat. 1204 70 ............... 82 §§1,2.................... 321 §§4,6............ 302 1898, July 1, c. 541, 30 Stat. 1933, Mar. 3, c. 204, 47 Stat. 544, as amended, 1467 .............. 37 §§ 17, 64, Chapter May 12, c. 25, 48 XI ........................ 513 Stat. 31, as amended, 1899, Mar. 3, c. 425, 30 Stat. §§ 1—19 ........ 82 1121, as amended, May 27, c. 38, 48 Stat §§ 10, 13.................. 493 74 ............... 617 1907, Mar. 2, c. 2534, 34 June 16, c. 89, 48 Stat. Stat. 1228, §6............. 815 162, as amended, Mar. 2, c. 2564, 34 §§ 16, 20, 21, 32.... 617 Stat. 1246................. 254 1934, Mar. 10, c. 55, 48 Stat. 1908, Apr. 22, c. 149, 35 Stat. 401, as amended, 65, as amended.... 576 §5 ............... 493 LXXVII lxxviii TABLE OF STATUEES CITED Page Page 1934, May 14, c. 283, 48 1952, July 10, c. 651, 66 Stat. Stat. 775..................... 82 549, § 208...... 520,527 May 24, c. 344, 48 1955, July 7, c. 283, 69 Stat. Stat. 797, § 1............... 815 oqo 8 2 891 June 14, c. 512, 48 1957 Sent 11" Pub L 85 Stat. 955................. 66, 82 1957’ 1 June 26, c. 757, 48 fl6 71 Stat. 639, Stat. 1236................... 601 1Q.Q „ S 16 •• •••• ••• — • 815 1935, July 5, c. 372, 49 Stat. 1959’ 14' Pub- L- 86“ 449, as amended, 257, 73 Stat. 519, §2 ...................... 137,302 §§ 101-103 ......... 233 §§3,9,10.................... 137 §701 ........... 137 §8 .................... 137,233 1961, Sept. 13, Pub. L. 87- Aug. 14, c. 531, 49 Stat. 228, 75 Stat. 498... 808 620, as amended, 1962, Sept. 28, Pub. L. 87- §216 ........................ 532 722, 76 Stat. 668.... 617 Aug. 23, c. 614, 49 Stat. Oct. 23, Pub. L. 87- 684 ......................... 617 856, 76 Stat. 1132, Aug. 24, c. 641, 49 Stat. §4 ............... 617 750, §30...................... 82 1964, July 2, Pub. L. 88- 1937, Aug. 21, c. 726, 50 352, 78 Stat. 241, Stat. 738.................. 66,82 § 703 .............. 424 1938, June 22, c. 575, 52 Stat. 1966, July 5, Pub. L. 89- 840, as amended, 496, 80 Stat. 270, §1 513 §2 ................. 513 1940,Aug. 22, c. 686, 54Stat. Oct. 15, Pub. L. 89- 789, §§2-6, 43............... 617 670, 80 Stat. 931, Sept. 16, c. 720, 54 as amended........ 402 Stat. 885, §5................ 437 Nov. 6, Pub. L. 89- Oct. 14, c. 876, 54 Stat. 770, 80 Stat. 1322.. 815 1137, §201................... 815 1967, June 30, Pub. L. 90- 1942, Jan. 30, c. 26, 56 Stat. 40, 81 Stat. 100, 23 .......................... 667 § 1 ............ 254,437 1947, June 23, c. 120, 61 Stat. Nov. 21, Pub. L. 90- 136, § 101.. 137,233, 302 148, 81 Stat. 485.... 402 §301 ...................... 302 1968, June 19, Pub. L. 90- §302 ...................... 144 351, 82 Stat. 197, §303 .................. 302,486 § 802 ........ 745,996 1948, June 24, c. 625, 62 Stat. Aug. 23, Pub. L. 90- 604, as amended, 495, 82 Stat. 815, §§ 1, 5, 10, 12... 254 § 18 ............... 402 §6 ........................ 437 Oct. 24, Pub. L. 90- June 25, c. 646, 62 632, 82 Stat. 1335, Stat. 869, §2281.... 82 §2 ................. 355 June 30, c. 758, 62 Stat. 1970, Jan. 1, Pub. L. 91- 1155, as amended, 190, 83 Stat. 852.... 402 §§ L 10........... 493 § 101 .............493 1952, June 27, c. 477, 66 Stat. Apr. 3, Pub. L. 91- 163, as amended, 224, 84 Stat. 91, §§ 301, 316, 349, 352, § 201 et seq......... 402 407 ......................... 815 §202 ............. 493 July 7, c. 579, 66 Stat. Oct. 30, Pub. L. 91- 420, § 19........... 513 516, 84 Stat. 1312.. 402 TABLE OF STATUTES CITED lxxix Page Page 1971, Jan. 2, Pub. L. 91- U. S. Code—Continued. 644 , 84 Stat. 1880, Title 21, § 174.... 646,745 § 14 ............ 254 Title 23, § 103...... 402 Revised Statutes. Title 23 (Supp. V), § 720 ..................... 37 §§ 103, 128, 138..... 402 § 1979 . 37,82,154,200,960 Title 26, §584........ 617 § 1980 200 §§ 4401 et seq., 6011, § 1993 ..................... 815 7201 ........... 667 § 3466 ..................... 513 §§4411, 4412, 7203. 667, § 5136 ..................... 617 715 U. S. Code. §4705 ............ 745 Title 1 (1940 ed.), §29. 715 §§4901, 7302, 7327. 715 Title 1, § 109.............. 715 § 7501 ............. 513 Title 5 (Supp. V), Title 26 (Supp. V), §§ 553, 554, 556, 557, §§ 5811, 5812, 5841- 701 ...................... 402 5872 ......... 601 §706 ................... 137,402 §7421 ............. 82 § 3331 ..................... 154 Title 28, Title 7, § 623............... 82 §§ 294, 295......... 927 Title 8, §§ 1401, 1401b, §§ 1251, 1332....... 493 1427, 1481, 1484.... 815 §§ 1253,1343. 37,82,154 Title 10, §§860-866, §1331 ........ 37,82,493 885-887, 890, 912, 920, §§ 1341, 2201.... 66,82 934 ....................... 355 § 1342 ............ 82 Title 10 (Supp. V), §1391 .............. 815 § 866 ..................... 355 § 1651 .......... 1204 Title 11, §701 et seq.. 513 §2106 .............. 560 Title 11 (Supp. V), §2202 ............... 66 §104 ...................... 513 §2241 ........ 487,667 Title 12, §§ 24 Seventh, § 2255 ... 487, 646, 667 78, 92a, 377, 378.... 617 §2281 . 77,82,154,371 Title 15, §§2283,2284......... 37, § § 1,2.... 302,321,1204 66,77,82,200 § 15 ................... 321,486 Title 28 (Supp. V), §§15b, 16, 26............. 321 §§ 1391, 2241..... 487 §§80a-2 to 80a-6. §§2244,2254....... 667 80a-42.....................617 Title 29, Title 16, § 665............. 493 §§ 101-104,106.. 82,302 Title 18, §§ 105, 107-115.... 82 § § 2, 4208...... 808 §152 ......... 137,302 §474 ....................... 481 §§ 153, 159, 160.... 137 § § 1084, 1301-1304, § 158 ........ 137,233 1952, 1953.... 667 § 185 ............. 302 § 1406 ..................... 815 §186 144 §3731 ....... 254,601 § 187 ........ 302,486 Title 18 (Supp. V), §§411-413 .......... 233 § 1952 ........ 808 Title 33> §§403, 407.. 493 §2510 et seq.. 745,996 Tltle 33 (Supp. V), Title 19, § 466g ............. 493 § 1304 ..... 254 Title 33 (1970 ed.), § 1618 .....................'715 §§ 1151, 1160..... 493 Title 20 (1970 ed.), Tltle 38 (Supp. V), § 1531 et seq.............. 402 § 101 .............. 532 lxxx TABLE OF STATUTES CITEE Page Page U. S. Code Continued. Fédéral Employers’ Liability Title 42, Act....................... 576 § 1983 ..................... 37, Fédéral Reserve Act........ 617 82,154,200,960 Glass-Steagall Act.......... 617 § 1985 ..................... 200 Immigration and National- § 2000e-2 .................. 424 ity Act.................. 815 Title 42 (Supp. V), Internai Revenue Code of §416 ....................... 532 1954, §§ 1857 et seq., 4321 § 584 ............... 617 et seq....................... 402 §§4401 et seq., 6011, §4331 ...................... 493 7201 .............. 667 Title 42, (1970 ed.), §§4411, 4412, 7203. 667,715 §4371 .................. 402,493 §4705 .............. 745 §§4372-4374 .............. 402 §§4901, 7302, 7327... 715 Title 43, § 666.... 520,527 §§ 5811,5812,5841-5872. 601 Title 45, §§ 51-60.... 576 § 7421 ............... 82 Title 49 (Supp. V), § 7501 .............. 513 § 1651 et seq.............. 402 Interpleader Act............ 37 Title 50 App., §§ 451, Investment Company Act of 460 ....................... 254 1940 .................. 617 Title 50 App. (Supp. Johnson Act.............................. 82 V), Judicial Code.............. 37 §§455, 460, 462.... 254 66, 77, 82, 154, 200 A J . . § 456 .......... 437 371, 487, 493, 560, 646, Administrative Procedure 667, 815, 927, 1204 A°t ............... 137, 402 Judiciary Act of 1789..... 37 Agncultural Adjustment Judiciary Act of 1875... 37,82 Act ........................ 82 Judiciary Act of 1925..... *82 Air Quahty Act of 1967... 402 Labor Management Rela-Banking Act of 1933....... 617 tions Act, 1947................. 137 Bankruptcy Act............ 513 144,233, 302,486 Bank Service Corporation Labor-Management Report- ct„ ■ .................... 617 ing and Eisclosure Act of Chandler Act.............. 513 1959 ................. 137 233 Rights Act of 1866.. 815 Landrum-Griffin Act... 137*233 Civi 1 Rights Act of 1871.. 37,82 Military Sélective Service Civil Rights Act of 1964.. 424 Act of 1967.............. 254 437 Clayton Act...... 302,321,486 National Bank Act.............’ 617 Criminal Appeals Act........................................ 254 National Environmental Pol- Declaratory Judgment Act. 66, icy Act of 1969.... 402,493 82 National Firearms Act....’601 Department of Transporta- Nationality Act of 1940.... 815 fion Act.................. 402 National Labor Relations Draft Act of 1917......... 437 Act ............... 137,233,302 Emergency Price Control National Prohibition Act.. 715 Act of 1942................ 667 Norris-LaGuardia Act.. 82,302 Environmental Education Omnibus Crime Control Act Act........................ 402 of 1970............... 254 Environmental Quality Im- Omnibus Crime Control and provement Act of 1970... 402, Safe Streets Act of 1968.. 745 493 996 Federal-Aid Highway Act of Rivers and Harbors Act of 1968 ..................... 402 1899 ................. 493 TABLE OF STATUTES CITED LXXXI Page Securities Act of 1933.... 617 Sélective Training and Serv- ice Act of 1940............. 437 Sherman Act....... 302,321,1204 Social Security Act....... 532 Taft-Hartley Act..........137, 144,233,302,486 (B) Constitutions and Alabama. Code, Tit. 1, §11......... 715 Code, Tit. 7, §381.... 321 Alaska. Stat. §01.05.021.......... 715 Arizona. Rev. Stat. Ann. §§ 1- 244, 1-246, 1-247, 1-249 715 Rev. Stat. Ann. §13-561.................... 1 Rev. Stat. Ann. § 14- 206 ..................... 532 Arkansas. Stat. Ann. § 1-103......... 715 Stat. Ann. §§ 34-1001 to 34-1009 ............. 321 California. Civ. Proc. Code §§ 875-880 ................. 321 Govt. Code §9608.... 715 Penal Code § 1205.... 395 Penal Code §§ 11400, 11401................. 37 Penal Code § 12303... . 601 Prob. Code § 255........... 532 Criminal Syndicalism Act........................ 37 Colorado. Rev. Stat. Ann. §§ 135— 1-7, 135-4-7......... 715 Rev. Stat. Ann. §§ 148-9-7, 148-9-13........ 520 Rev. Stat. Ann. § 148- 21-1 et seq................ 527 Rev. Stat. Ann. § 153— 2-8 ................. 532 Water Rights Détermination and Administration Act of 1969.. 527 Connecticut. Gen. Stat. Rev. §§ 52— 259, 52-261....... 371 Page Tax Injunction Act........ 66,82 Travel Act................ 808 Uniform Code of Military Justice, Arts. 60-66, 85-87, 90, 112, 120, 134...... 355 Water Pollution Control Act ..................... 493 STATUTES OF THE STATES Connecticut—Continu ed. Gen. Stat. Rev. § 54-194 ................. 715 Delaware. Code Ann., Tit. 1, §104 ................ 715 Code Ann., Tit. 10, §§ 6301-6308 ........ 321 Code Ann., Tit. 11, §4332 ................... 395 Florida. Const., Art. 10, § 9....... 715 Stat. §236.251............. 476 Stat. §731.29.............. 532 Millage Rollback Law.. 476 Georgia. 1 Laws 1970, pp. 968-972 ................. 144 Code Ann. §26-103.... 715 Code Ann. §38-418... 964 Code Ann. §§ 61-301 to 61-306, 102-104...... 144 Code Ann. §74-103... 532 Hawaii. Rev. Stat. § 1-11.......... 715 Rev. Stat. §§ 246-10 to 246-16 .............. 321 Rev. Stat. § 577-14.... 532 Idaho. Code § 14—104.............. 532 Code §67-513............... 715 Illinois. Rev. Stat., c. 38, §§ 12-2, 12-4, 12-6, 25-1, 31-1 ................. 77 Rev. Stat., c. 46, § 10-10.1 ........... 904 Rev. Stat., c. 131, §4.. 715 Indiana. Ann. Stat. §§ 1-303, 1-307 ................. 715 Ann. Stat. § 6-207.... 532 415-649 0 - 72 -6 LXXXII TABLE OF STATUTES CITED Page lowa. Code §4.1..................715 Code § 633.222............ 532 Q "H QQ Q Stat. Ann. § 59-501.... 532 Stat. Ann. §77-201... 715 Kentucky. Rev. Stat. §391.090... 532 Rev. Stat. §446.110... 715 Louisiana. Const., Art. 4, § 16.... 532 Civ. Code Ann., Arts. 90-98, 119, 120, 178, 198, 200, 206, 215-245, 915, 919, 920, 1481, 1486, 1488, 1493-1518, 1617-1621, 2315 ...................... 532 Civ. Code Ann., Art. 2203 .................. 321 Rev. Stat. §14:106... 82 Rev. Stat. §24:171.... 715 Rev. Stat. §40:308.... 532 Maine. Rev. Stat. Ann., Tit. 1, §302 ................ 715 Maryland. Ann. Code, Art. 1, §3.. 715 Ann. Code, Art. 38, § 4. 395 Ann. Code, Art. 50, § § 16-24 ......... 321 Massachusetts. Gen. Laws, c. 4, § 6.... 715 Gen. Laws, c. 231B, §§1-4 ................ 321 Gen. Laws, c. 272, § 28A.............. 216 Gen. Laws, c. 279, § IA ............ 395 Michigan. Comp. Laws §8.4a.... 715 Comp. Laws § 750.410. 576 Stat. Ann. § 27.3178 (153) .................... 532 Stat. Ann. §27A.2925. 321 Minnesota. Stat. §525.172........ 532 Stat. § 645.35........ 715 Mississippi. Code Ann. §2608...... 715 Missouri. Rev. Stat. §1.160.... 715 Rev. Stat. § 537.060... 321 Page Montana. Rev. Codes Ann. § 43-514................. 715 Rev. Codes Ann. §91-404 ................ 532 Rev. Codes Ann. § 93-8108 ............... 321 Nebraska. Rev. Stat. §30-109... 532 Rev. Stat. § 49-301.... 715 Nevada. Rev. Stat., c. 101......... 321 Rev. Stat. § 134.170... 532 Rev. Stat. § 169.235... 715 New Hampshire. Rev. Stat. Ann. §21:38. 715 New Jersey. Rev. Stat. §1:1-15... 715 New Mexico. Const., Art. 4, §33.... 715 Stat. Ann. §§ 24-1-11 to 24-1-18 ............ 321 Stat. Ann. §29-1-18.. 532 New York. Const., Art. XIII, § 1.. 154 Civ. Prac. Law, Rules 102,9401,9404,9406. 154 Code Crim. Proc. § § 148-150 ....... 82 Code Crim. Proc. § 470-d ............. 395 Est.,, Powers and Trusts Law §4^1.2................ 532 Gen. Constr. Law § 94. 715 Gen. Obligations Law § § 15-101 to 15-109.. 321 Judiciary Law §§ 90, 229, 466............. 154 Judiciary Law App. § 528.1-528.4 .... 154 Penal Law §§ 160, 161, 163, 580.............. 66 Penal Law § 235.00.... 82 Criminal Anarchy Law. 66 North Carolina. Gen. Stat. §§ 164-4, 164-5 ............... 715 North Dakota. Const. §76.................. 715 Cent. Code § 1-02-17.. 715 Cent. Code §§ 32-38-01 to 32-38-04.......... 321 Cent. Code §56-01-05. 532 TABLE OF STATUTES CITED LXXXIII Page Ohio. Const., Art. I, § 10.... 715 Rev. Code Ann. §§ 1.20, 2945.43 ............. 715 Oklahoma. Const., Art. 5, §54... 715 Stat. Ann., Tit. 84, §215 ................ 532 Oregon. Rev. Stat. §§ 109.060, 111.231 ............. 532 Rev. Stat. § 161.040.. 715 Pennsylvania. Stat. Ann., Tit. 12, §§2082-2089 ......... 321 Stat. Ann., Tit. 19, § 953 .............. 395 Stat. Ann., Tit. 20, § 1.7 .............. 532 Stat. Ann., Tit. 46, §§582,596............ 715 Rhode Island. Gen. Laws Ann. §§10— 6-1 to 10-6-11....... 321 Gen. Laws Ann. § 43-3-23 ................ 715 South Dakota. Comp. Laws Ann. § 2-14-18................ 715 Comp. Laws Ann. §§15— 8-11 to 15-8-22...... 321 Comp. Laws Ann. § 29-1-15................. 532 Page Tennessee. Code Ann. §1-301.... 715 Texas. Gen. Laws 1961, c. 461. 200 Code Crim. Proc., Arts. 4.14, 45.53......... 395 Penal Code, Arts. 14.16, 17.19 .............. 715 Penal Code, Art. 527.. 200 Utah. Code Ann. §§ 15-4-1 to 15-4-7.............. 321 Code Ann. §68-3-5... 715 Code Ann. §74-4-10.. 532 Vermont. Stat. Ann., Tit. 1, §214. 715 Virginia. Code Ann. § 1-16........... 715 Washington. Rev. Code §9.92.070.. 395 Rev. Code § 10.01.040.. 715 Rev. Code § 11.04.081.. 532 West Virginia. Code Ann. § 2-2-8.......... 715 Code Ann. § 55-7-12.. 321 Wisconsin. Stat. §§113.01-113.10.. 321 Stat. Ann. § 237.06.... 532 Stat. §990.04.............. 715 Wyoming. Stat. Ann. §8-21........... 715 (C) Treaty 1909, Jan. 11, 36 Stat. 2448 (Treaty Between the United States and Great Britain).............................................. 493 (D) Foreign Statutes England. 25 Edw. 3, Stat. 2........................................... 815 29 Car. 2, c. 6.............................................. 815 7 Anne, c. 5, § 3............................................ 815 4 Geo. 2, c. 21.............................................. 815 13 Geo. 3, c. 21............................................. 815 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1970 BAIRD v. STATE BAR OF ARIZONA CERTIORARI TO THE SUPREME COURT OF ARIZONA No. 15. Argued December 8-9, 1969—Reargued October 14, 1970— Decided February 23, 1971 Petitioner, who had passed the Arizona written bar examination, listed ail the organizations to which she belonged since âge 16 on the Bar Committee questionnaire, but refused to answer the question (No. 27) whether she had ever been a member of the Com-munist Party or any organization “that advocates overthrow of the United States Government by force or violence.” The committee declined to process her application further or recommend her admission to the bar. The Arizona Suprême Court denied her pétition for an order to show cause why she should not be admitted to practice law. Held: The judgment of the Arizona Suprême Court is reversed and the case is remanded. Pp. 5-10. Reversed and remanded. Mr. Justice Black, joined by Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall, concluded that views and beliefs are immune from bar committee inquisitions designed to lay a foundation for barring an applicant from the practice of law, which is a matter of right for one qualified by learning and moral character. Pp. 5-8. (a) A State’s power to inquire about a person’s beliefs or associations is limited by the First Amendment, which prohibits a State from excluding a person from a profession solely because of membership in a political organization or because of his beliefs. Pp. 5-6. 1 2 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. (b) While Arizona bas a legitimate interest in determining whether petitioner’s character and professional compétence qualify her to practice law, petitioner has supplied the Bar Committee with extensive personal and professional information to assist its détermination. Pp. 6-7. Mr. Justice Stewart concluded that Question 27 is constitu-tionally infirm under the First and Fourteenth Amendments as it is not confined to knowing membership in any organization that advocates violent overthrow of the Government, and it is an in-quiry into the proscribed area of political beliefs. Pp. 9-10. Black, J., announced the Court’s judgment and delivered an opinion, in which Douglas, Brennan, and Marshall, JJ., joined. Stewart, J., filed an opinion concurring in the judgment, post, p. 9. Harlan, J., filed a dissenting opinion, post, p. 34. White, J., filed a dissenting opinion, post, p. 10. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Harlan and White, JJ., joined, post, p. 11. Peter D. Baird reargued the cause for petitioner. With him on the brief were John P. Frank and Paul G. Ulrich. Mark Wilmer reargued the cause and filed a brief for respondent. Mr. Justice Black announced the judgment of the Court and delivered an opinion in which Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join. This is one of two cases now before us from two different States in which applicants hâve been denied admission to practice law solely because they refused to answer questions about their personal beliefs or their affiliations with organizations that advocate certain ideas about government.1 Sharp conflicts and close divisions hâve arisen in this Court concerning the power of 1 The other is No. 18, In re Stolar, post, p. 23. See also No. 49, Law Students Civil Rights Research Council v. Wadmond, post, p. 154. BAIRD v. STATE BAR OF ARIZONA 3 1 Opinion of Black, J. States to refuse to permit applicants to practice law in cases where bar examiners hâve been suspicions about applicants’ loyalties and their views on Communism and révolution. This has been an increasingly divisive and bitter issue for some years, especially since Senator Joseph McCarthy from Wisconsin stirred up anti-Com-munist feelings and fears by his “investigations” in the early 1950’s. One applicant named Raphaël Konigsberg was denied admission in California and this Court reversed. Konigsberg v. State Bar, 353 U. S. 252 (1957). The State nevertheless denied him admission a second time, and this Court then affirmed by a 5-to-4 decision. 366 U. S. 36 (1961). An applicant named Rudolph Schware was denied admission in New Mexico and this Court reversed, with five Justices agreeing on one opinion, three Justices on another opinion, and one not participating. Schware v. Board of Bar Examiners, 353 U. S. 232 (1957). In another case an applicant named George Anastaplo was denied admission in Illinois on grounds similar to those involved in Konigsberg and Schware, and the déniai was affirmed by a 5-to-4 margin. In re Anastaplo, 366 U. S. 82 (1961). See also In re Summers, 325 U. S. 561 (1945). With sharp divisions in this Court, our docket and those of the Courts of Appeals hâve been filled for years with litiga-tion involving inquisitions about beliefs and associations and refusais to let people practice law and hold public or even private jobs solely because public authorities hâve been suspicious of their ideas.2 Usually these déniais of employment hâve not been based on any overt acts of misconduct or lawlessness, and the litigation has 2 See, e. g., Adler n. Board of Education, 342 U. S. 485 (1952); Beilan v. Board of Education, 357 U. S. 399 (1958); Elfbrandt v. Russell, 384 U. S. 11 (1966); Keyishian v. Board of Regents, 385 U. S. 589 (1967); United States v. Robel, 389 U. S. 258 (1967). 4 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. continued to raise serions questions of alleged violations of the First Amendment and other guarantees of the Bill of Rights.3 The foregoing cases and others contain thousands of pages of confusing formulas, refined reasonings, and puzzling holdings that touch on the sanie suspicions and fears about citizenship and loyalty. However we hâve concluded the best way to handle this case is to narrate its simple facts and then relate them to the 45 words that make up the First Amendment. These are the facts. The petitioner, Sara Baird, graduated from law school at Stanford University in California in 1967. So far as the record shows there is not now and never has been a single mark against her moral character. She has taken the examination prescribed by Arizona, and the answer of the State admits that she satisfactorily passed it. Among the questions she answered was No. 25, which called on her to reveal ail organizations with which she had been associated since she reached 16 years of âge.4 This question she answered to the satisfaction of the Arizona Bar Committee. Consequently there is no charge or intimation that Mrs. Baird has not listed the organizations to which she has belonged since be-coming 16. In addition, however, she was asked to state whether she had ever been a member of the Com-munist Party or any organization “that advocates over-throw of the United States Government by force or 3 See the cases cited in n. 2, supra. See also Shelton n. Tucker, 364 U. S. 479 (1960) ; American Communications Assn. v. Douds, 339 U. S. 382, 445 (1950) (Black, J., dissenting) ; cf. Bâtes v. Little Rock, 361 U. S. 516 (1960) ; Speiser v. Randall, 357 U. S. 513 (1958); Wilkinson v. United States, 365 U. S. 399 (1961); NAACP v. Alabama, 357 U. S. 449 (1958); Brandenburg v. Ohio, 395 U. S. 444 (1969). 4 App. 18. BAIRD v. STATE BAR OF ARIZONA 5 1 Opinion of Black, J. violence.” 5 When she refused to answer this question, the Committee declined to process her application fur-ther or recommend her admission to the bar.6 The Arizona Suprême Court then denied her pétition for an order to the Committee to show cause why she should not be admitted to practice law. We granted certiorari. 394 U. S. 957. In Arizona it is per jury to answer the bar committee’s questions falsely, and per jury is punishable as a felony. Ariz. Rev. Stat. Ann. § 13-561 (1956). In effect this young lady was asked by the State to make a guess as to whether any organization to which she ever belonged “advocates overthrow of the United States Government by force or violence.” There may well be provisions of the Fédéral Constitution other than the First Amend-ment that would protect an applicant to a State bar from being subjected to a question potentially so hazardous to her liberty. But whether or not there are other provisions that protect her, we think the First Amendment does so here. That Amendment, made applicable to the States by the Fourteenth, forbids any “law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble . . . .” Mr. Justice Roberts, in referring to the First Amendment’s guarantee of freedom of religion, said: “Thus the Amendment embraces two concepts,— freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to régulation for the protection of society.” Cantwell v. Connecticut, 310 U. S. 296, 303-304 (1940). 5 Question No. 27, App. 18. 6 Response of the Committee on Examinations and Admissions to Order to Show Cause. App. 4. 6 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. See also Schneider v. State, 308 U. S. 147, 160-161 (1939); West Virginia Board of Education v. Barnette, 319 U. S. 624, 642 (1943). And we hâve made it clear that: “This conjunction of liberties is not peculiar to religions activity and institutions alone. The First Amendment gives freedom of mind the same security as freedom of conscience.” Thomas v. Collins, 323 U. S. 516, 531 (1945). The protection of the First Amendment also extends to the right of association. As we said in Schneider v. Smith, 390 U. S. 17, 25 (1968): “The First Amendment’s ban against Congress ‘abridging’ freedom of speech, the right peaceably to assemble and to pétition, and the ‘associational freedom’. . . that goes with those rights create a preserve where the views of the individual are made inviolate.” See also Shelton v. Tucker, 364 U. S. 479, 485^487 (1960); Bâtes v. Little Rock, 361 U. S. 516 (I960); NAACP v. Alabama, 357 U. S. 449 (1958). The First Amendment’s protection of association pro-hibits a State from excluding a person from a profession or punishing him solely because he is a member of a par-ticular political organization or because he holds certain beliefs. United States v. Robel, 389 U. S. 258, 266 (1967) ; Keyishian v. Board of Regents, 385 U. S. 589, 607 (1967). Similarly, when a State attempts to make inquiries about a person’s beliefs or associations, its power is limited by the First Amendment. Broad and sweeping state inquiries into these protected areas, as Arizona has engaged in here, discourage citizens from exercising rights protected by the Constitution. Shelton v. Tucker, supra; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 (1963); Cf. Speiser v. Randall, 357 U. S. 513 (1958). When a State seeks to inquire about an individual’s beliefs and associations a heavy burden lies upon it BAIRD v. STATE BAR OF ARIZONA 7 1 Opinion of Black, J. to show that the inquiry is necessary to protect a legitimate state interest. Gibson v. Florida Legislative Investigation Committee, supra, at 546. Of course Arizona has a legitimate interest in determining whether petitioner has the qualifies of character and the profes-sional compétence requisite to the practice of law. But here petitioner has already supplied the Committee with extensive personal and professional information to assist its détermination. By her answers to questions other than No. 25, and her listing of former employers, law school professors, and other references, she has made available to the Committee the information relevant to her fitness to practice law.7 And whatever justification may be offered, a State may not inquire about a man’s views or associations solely for the purpose of with-holding a right or benefit because of what he believes. Much has been written about the application of the First Amendment to cases where penalties hâve been imposed on people because of their beliefs. Some of what has been written is reconcilable with what we hâve said here and some of it is not. Without 7 Respondent has argued that even when an applicant has answered Question 25, listing the organizations to which she has belonged since the âge of 16, Question 27 still serves a useful and legitimate function. Respondent urges: “Assume an answer including an organization by name such as 'The Sons and Daughters of I Will Arise.’ This could truly be a Christian group with religious objectives. But also it could be an organization devoted to the objectives of Lenin, Stalin or any other deceased person whose teachings and objectives were not conducive to the continued security and welfare of our government and way of life.” Brief for Respondent 8. The organizations petitioner listed in response to question 25 were: Church Choir; Girl Scouts; Girls Athletic Association; Young Republicans; Young Democrats; Stanford Law Association; Law School Civil Rights Research Council. Respondent does not state which of these organizations may threaten the security of the Republic. 8 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. detailed reference to ail prior cases, it is sufficient to say we hold that views and beliefs are immune from bar association inquisitions designed to lay a founda-tion for barring an applicant from the practice of law. Clearly Arizona has engaged in such questioning here.8 The practice of law is not a matter of grâce, but of right for one who is qualified by his learning and his moral character. See Schware v. Board oj Bar Exam-iners, supra, and Ex parte Garland, 4 Wall. 333 (1867). This record is wholly barren of one word, sentence, or paragraph that tends to show this lady is not morally and professionally fit to serve honorably and well as a mem-ber of the legal profession. It was error not to process her application and not to admit her to the Arizona Bar. The judgment of the Arizona Suprême Court is reversed and the case remanded for further proceedings not incon-sistent with this opinion. It is so ordered. [For dissenting opinion of Mr. Justice Harlan, see post, p. 34.] 8 The committee urges that it is entitled to demand an answer to Question 27 because: “Unless we are to conclude that one who truly and sincerely believes in the overthrow of the United States Government by force and violence is also qualified to practice law in our Arizona courts, then an answer to this question is indeed appropriate. The Committee again emphasizes that a mere answer of ‘yes’ would not lead to an automatic rejection of the application. It would lead to an investigation and interrogation as to whether or not the applicant presently entertains the view that a violent overthrow of the United States Government is something to be sought after. If the answer to this inquiry was ‘yes’ then indeed we would reject the application and recommend against admission.” (Emphasis added.) Mémorandum in Support of Response to Pétition for Order to Show Cause, App. 5-6. BAIRD v. STATE BAR OF ARIZONA 9 1 Stewart, J., concurring in judgment Mr. Justice Stewart, concurring in judgment. The Court has held that under some circumstances simple inquiry into présent or past Communist Party membership of an applicant for admission to the Bar is not as such unconstitutional. Konigsberg v. State Bar, 366 U. S. 36; In re Anastaplo, 366 U. S. 82. Question 27, however, goes further and asks appli-cants whether they hâve ever belonged to any organi-zation “that advocates overthrow of the United States Government by force or violence.” Our decisions hâve made clear that such inquiry must be confined to know-ing membership to satisfy the First and Fourteenth Amendments. See, e. g., United States v. Robel, 389 U. S. 258, 265—266; Law Students Civil Rights Research Council v. Wadmond, post, p. 154, at 165. It follows from these decisions that mere membership in an organiza-tion can never, by itself, be sufficient ground for a State’s imposition of civil disabilities or criminal punish-ment. Such membership can be quite different from knowing membership in an organization advocating the overthrow of the Government by force or violence, on the part of one sharing the spécifie intent to further the organization’s illégal goals. See Seules v. United States, 367 U. S. 203, 228-230; Law Students Civil Rights Research Council v. Wadmond, supra. There is a further constitutional infirmity in Arizona’s Question 27. The respondent State Bar is the agency entrusted with the administration of the standards for admission to practice law in Arizona. And the respond-ent’s explanation of its purpose in asking the question makes clear that the question must be treated as an inquiry into political beliefs. For the respondent ex-plicitly states that it would recommend déniai of admission solely because of an applicant’s beliefs that the respondent found objectionable. Cf. Wadmond, supra, at 10 OCTOBER TERM, 1970 White, J., dissenting 401 U. S. 162-163. Yet the First and Fourteenth Amendments bar a State from acting against any person merely because of his beliefs. E. g., West Virginia Board of Education v. Barnette, 319 U. S. 624, 642; Cantwell v. Connecticut, 310 U. S. 296, 303-304. Cf. Carrington v. Rash, 380 U. S. 89, 94. Mr. Justice White, dissenting.* I am quite unable to join the opinions of Mr. Justice Black announcing the judgments of the Court in these cases. It is my view that the Constitution does not require a State to admit to practice a lawyer who believes in violence and intends to implement that belief in his practice of law and advice to clients. I also be-lieve that the State may ask an applicant preliminary questions that will permit further investigation and reasoned, articulated judgment as to whether the applicant will or will not advise lawless conduct as a practicing lawyer. Arizona has no intention of barring applicants based on belief alone. This my Brother Blackmun makes quite clear. Its inquiries were designed to ascertain whether an applicant expects actively to support illégal violence or espouses an activist rôle in implementing that idea. Ohio takes much the same approach, and in my view both States are right. If, as a préfacé to further questions, New York may ask whether an applicant is a know-ing member of the Communist Party, although that fact alone would not be ground for exclusion, see Law Students Civil Rights Research Council v. Wadmond, post, p. 154, Arizona and Ohio may ask about simple member-ship for the same justifiable reason. And if investigation reveals the applicant to be actively furthering the illégal *[This opinion applies also to No. 18, In re Stolar, post, p. 23.] BAIRD v. STATE BAR OF ARIZONA 11 1 Blackmun, J., dissenting activities of any group or to be without compréhension that advising lawless conduct is incompatible with pro-fessional standards, the State should be able to deny admission to the Bar. As Mr. Justice Black’s opinions hasten to assure us, a State may assure itself of an applicant’s “qualifies of character” and educational qualifications. Accordingly, it would be entitled to make an assessment of his “honesty” and refuse to license him if firmly convinced by his responses or other record evidence that he would not conform to the standards of integrity expected of the members of the Bar. Neither should it be required to admit to practice a person who believes in violent conduct to achieve social, political, or other ends and who is currently and actively supporting such activities or who expects to do so in the course of advising clients in his professional rôle. I thus see no constitutional basis for forbidding the asking of perfectly relevant questions designed to ascertain whether an applicant considers it the proper rôle of the lawyer, as practitioner, to advise and advocate violence as a means for settling disputes or achieving social or political ends. I therefore dissent from the judgments in both of these cases. Mr. Justice Blackmun, with whom The Chief Justice, Mr. Justice Harlan, and Mr. Justice White join, dissenting. This, for me, is not at ail a case involving mere Personal beliefs on the part of Sara Baird. I hâve necessarily assumed, and I trust not errone-ously, that Konigsberg v. State Bar, 366 U. S. 36, and In re Anastaplo, 366 U. S. 82, both decided on April 24, 1961, hâve remained good law despite the Court’s then close division (Justice Harlan and Justices Frankfurter, Clark, Whittaker, and Stewart in the majority; Justice Black and Chief Justice Warren, and Justices 12 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. Douglas and Brennan, dissenting). Neither case has ever been expressly overruled. Neither is now ex-pressly overruled. In each of the cases the Court de-cided, at the very least, as Mr. Justice Stewart puts it in his separate concurrence here, that “under some circumstances simple inquiry into présent or past Com-munist Party membership of an applicant for admission to the Bar is not as such unconstitutional.” I think the Court really decided more than that. I say this because (a) in Konigsberg the applicant had “reiterated unequivocally his disbelief in violent over-throw, and stated that he had never knowingly been a member of any organization which advocated such action,” 366 U. S., at 39; (b) the Court stated that it thought it “clear that the Fourteenth Amendment’s protection against arbitrary state action does not forbid a State from denying admission to a bar applicant so long as he refuses to provide unprivileged answers to questions having a substantial relevance to his qualifications,” 366 U. S., at 44; that: “We likewise regard as untenable petitioner’s contentions that the questions as to Communist Party membership were made irrelevant either by the fact that bare, innocent membership is not a ground of disqualification or by petitioner’s willingness to an-swer such ultimate questions as whether he himself believed in violent overthrow or knowingly belonged to an organization advocating violent overthrow,” 366 U. S., at 46; and that: “It would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illégal means to change the form of the State or Fédéral Government is an unimportant considération in determining the fitness of applicants BAIRD v. STATE BAR OF ARIZONA 13 1 Blackmun, J., dissenting for membership in a profession in whose hands so largely lies the safekeeping of this country’s legal and political institutions. . . . “[W]e regard the State’s interest in having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented,” 366 U. S at 51-52; and (c) in Anastaplo it was observed: “We hâve also held in Konigsberg that the State’s interest in enforcing such a rule as applied to refusais to answer questions about membership in the Com-munist Party outweighs any deterrent effect upon freedom of speech and association, and hence that such state action does not offend the Fourteenth Amendment.” (Footnote omitted.) 366 U. S., at 89. Petitioner Baird, however, attacked the integrity of these cases before the Arizona court and again attacks their integrity here and daims that, although perhaps distinguishable, the cases “warrant . . . delimiting, and perhaps even overruling in light of the trend since 1961.” In my view, Mrs. Baird has now had striking success in her overruling endeavor despite the seeming récognition of the two cases in the opinion of the plurality for reversai (hereafter plurality) and the separate concur-rence’s definite bow in their direction. The présent case cornes here, after argument for the second time, in a stark and clear posture. Mrs. Baird, applicant for admission to the Bar of the State of Arizona, possessor of an academie degree from Colorado College, and possessor of a degree in law from Stanford 415-649 0 - 72 -7 14 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. University, refuses to answer, other than to say “Not Applicable,” the 27th inquiry of a questionnaire which the Arizona Suprême Court, by rule, has made a part of the application for membership in the State Bar.1 That question reads: “Are you now or hâve you ever been a member of the Communist Party or any organization that advo-cates overthrow of the United States Government by force or violence?” The applicant bases this refusai (a) on the fact that in her answer to a preceding inquiry, the 25th, she listed the organizations of which she had been a member since âge 16, and (b) on the asserted legal propositions that to compel her to answer is to deny her First Amendment rights of freedom of belief and freedom of association, her Fifth Amendment right not to incriminate herself, and her Fourteenth Amendment right to due process. In my view, applicant Baird vastly overstates her case. On this record, I would affirm the judgment of the Suprême Court of Arizona in denying Mrs. Baird’s pétition for admission to practice law in the State’s courts. There are several factors that prompt my conclusion: 1. Mrs. Baird is an intelligent and knowledgeable per-son. She holds a college degree and a graduate degree, and, as is assumed here, she has demonstrated in the Bar examination an acceptable knowledge and mastery of the law. There is no claim of vagueness or lack of awareness on her part of precisely what Question 27 meant or of what it was intended to probe. The applicant obviously knew the scope of the question and its 1 See 102 Ariz. XXIV, XXIX, and XXXVII, for the pertinent provisions of Rule 28 (c) in effect at the time Mrs. Baird submitted her application. The rule was amended, effective August 1, 1970, in ways not relevant here. See 106 Ariz. XXXI. BAIRD v. STATE BAR OF ARIZONA 15 1 Blackmun, J., dissenting concern with the Party and with forceful and violent overthrow of the Government. 2. Mrs. Baird’s use of the “Not Applicable” response to Question 27 is not fully understandable. Of course, she may hâve so phrased that answer hurriedly in the passing thought that, with her listing of organizations in response to Question 25, buttressed by the statement, “This list includes ail organizations that I can recall at this time,” and with those organizations on the list obviously not within the contemplation of Question 27, the latter question was, indeed, “not applicable.” After ail, she did employ the same “not applicable” answer on the form in no less than 16 other places; most of these, because of their conditional context, could well hâve been left blank and would hâve been expected to be left blank, despite the general instruction that ail questions were to be answered. Nevertheless she did respond to the inquiry in that manner and, as her brief States, she now has “declined to answer” the question. This, then, leaves this litiga-tion in the posture where the response to Question 27 was not inadvertent and was not the product of any misunderstanding or mistake, where an answer is now flatly refused, and where the applicant, perhaps some-what defiantly, is content to hâve the record remain as it is and to hâve her case won or lost on that record. This is reminiscent of the obstructionist tactics con-demned in Konigsberg and Anastaplo. 3. For Mrs. Baird to say that because she had answered Question 25 and had listed her organization mem-berships since âge 16 she need not respond to Question 27 is no answer at ail.2 To answer the one question fully and to refuse to respond to the other embraces an obvious 2 The majority, of course, obviously would hold that Question 25 also was impermissible. In re Stolar, post, p. 23. Mrs. Baird, however, appears to hâve had no hesitancy in answering that inquiry. 16 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. inconsistency of position, for the two questions are re-lated. Furthermore, the questions are not duplicative. By her refusai to answer Question 27, she would place on the Arizona Committee on Examinations and Admissions 3 and on the Suprême Court of Arizona the burden of determining which of the organizations she listed, if any, was an arm of the Communist Party or advocated forceful or violent overthrow of the Government. That, however, is not the task of the Committee or of the Arizona Suprême Court. It is Sara Baird’s task. It is a truism, I think, that the Communist endeavor works beneath the surface as well as in the open and that high-sounding names hâve been the front and the verbal shield for something very different from what the name imports. 4. No one is in a better position to know the aim and purpose and advocacy of an organization than a member. Certainly the Committee and the Arizona Suprême Court, which hâve other things to do, are not equipped for the task of checking out the identity of every named organization, especially one which might follow the standard of the less said and known, the better. And Mrs. Baird would place this burden on the Committee by submitting partial answers. She gives the appearance of playing a game. The importance of the subject de-serves better than that. 5. It has been said that the burden is on the applicant. Application of Courtney, 83 Ariz. 231, 233, 319 P. 2d 991, 993 (1957). But a most minimal burden it is. Had she answered “None” to Question 27, that would hâve been the end of the matter in the absence of obvious prévarication. If she were in doubt, the answer “None to my knowledge” would hâve accomplished the same resuit. She chose neither answer. She chose, instead, to remain silent and less than candid. 3 See Arizona Suprême Court Rule 28 (c). BAIRD v. STATE BAR OF ARIZONA 17 1 Blackmun, J., dissenting 6. The plurality opinion, I feel, fails to place the issue in exact focus. This is not a situation where, as that opinion States, and even would do so in a per jury con-text, “In effect this young lady was asked by the State to make a guess as to whether any organization to which she ever belonged ‘advocates overthrow of the United States Government by force or violence.’ ” It fails far short of guesswork. Mrs. Baird either knew the answer or she did not know it. If she knew, she coupled her knowledge with an attempt to conceal. If she did not know, she had only to state her lack of knowledge. This was no “guess” and, absent the intent to deceive, it certainly was no guess fraught with the risks of per jury. 7. Although Question 27, concededly, would hâve been better phrased had it gone on to inquire as to the appli-cant’s own knowing participation in, and promotion of, illégal goals, a realistic reading of the question discloses that it is directed not at mere belief but at advocacy and at the call to violent action and force in pursuit of that advocacy. Contrary to the plurality opinion’s conclusion and to that of the separate concurrence, I find nothing in this record that indicates that Mrs. Baird automatically would hâve been denied admission to the Bar had she answered Question 27 in the affirmative. The record, and the Committee’s brief here,4 disclose exactly the 4 “The Committee would again emphasize that it has formed no judgment as to whether or not Sara Baird should or should not be recommended for admission to the Bar of this State to this Court. “The Committee would again emphasize to this Court that if the answer to question No. 27 is ‘yes’ the Committee will then endeavor to ascertain if Sara Baird does adhéré to the view that the overthrow of the Government of this State and of the United States by force and violence would be a désirable objective and that she would expect to actively support sucn views. If this is the conclusion reached by the Committee, it will undoubtedly refuse to recommend Sara Baird for admission to the Bar of the State of Arizona. Should the conclusion be that her membership is of a nominal character 18 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. opposite. In its Mémorandum, filed with the Arizona court in support of its response to the order to show cause, the Committee stated that no judgment as to recommendation or nonrecommendation for admission had been made; that an affirmative answer to Question 27 would lead to further inquiry as to Mrs. Baird’s expectation actively to support the objective of violent overthrow; and that, if her membership is of a nominal character and she does not participate in the advocacy views, there would be no legal basis for refusing a recommendation for admission.5 The material quoted in the and that she does not participate and adhéré to the views that a violent overthrow of our government is désirable, then the Committee would hâve no legal basis for refusing to recommend her for admission to practice law under the decisions of the United States Suprême Court . . . Respondent’s Brief 2. “The Committee, contrary to the repeated assertions and insinuations to the contrary in Petitioner’s Brief, has also made it abundantly clear that regardless of the political beliefs and views of Sara Baird it is only if she is found to actively believe in the notion and espouses an activist rôle in implementing the notion that our government be destroyed by force and violence that a favorable recommendation will be refused her by the Committee. . . .” Respondent’s Brief 3. “The Committee has not and cannot in good conscience certify to the Arizona Suprême Court that Sara Baird has the character and moral fitness to practice law if she does actively support and advocate the overthrow of the Government of the United States by force and violence.” Respondent’s Brief 6. “The issue is simple. Ts one who believes in and who is willing to work to undermine and destroy the Government of the United States qualified to be admitted to the practice of law?’ ” Respondent’s Brief 13. 5 The Mémorandum states as its conclusion : “The Committee would again emphasize that it has formed no judgment as to whether or not Sara Baird should or should not be recommended for admission to the Bar of this State to this Court. “The Committee would again emphasize to this Court that if the answer to question No. 27 is ‘yes’ the Committee will then endeavor to ascertain if Sara Baird does adhéré to the view that the over- BAIRD v. STATE BAR OF ARIZONA 19 1 Blackmun, J., dissenting plurality opinion’s footnote 8 is from the body of the Mémorandum; my reading of that material, however, indicates only that further inquiry is then in order. I do not share the opinion’s interprétation of that material as being directed to mere belief. The key words are whether “violent overthrow . . . is something to be sought after.” That is an inquiry into willingness to participate in violence. 8 . There is talk, of course, in the briefs here about whether admission to the Bar and receiving authority to practice law is a “right” or a “privilège.” I am old enough and old-fashioned enough always to hâve regarded it more as a privilège than as a right. I at least thought that was the tradition. A century ago Mr. Justice Field referred to the practice of law by a qualified per-son as a right and not as a matter of the State’s grâce or favor. Ex parte Garland, 4 Wall. 333, 379 (1867). The Arizona court has spoken in similar terms. Application of Klahr, 102 Ariz. 529, 531, 433 P. 2d 977, 979 (1967). It could oppositely be stated, with just as much accuracy, as the Bar in its brief here asserts,6 that “one qualified by character, integrity and learning has the right to practice law.” Indeed, this is precisely the way the Arizona court has phrased it: “[T]he practice of law is not a privilège but a right, conditioned solely on the requirement that a person hâve the necessary mental, throw of the Government of this State and of the United States by force and violence would be a désirable objective and that she would expect to actively support such views. If this is the conclusion reached by the Committee, it will undoubtedly refuse to recom-mend Sara Baird for admission to the Bar of the State of Arizona. Should the conclusion be that her menbership is of a nominal character and that she does not participate and adhéré to the views that a violent overthrow of our government is désirable, then the Committee would hâve no legal basis for refusing to recommend her for admission to practice law . . . .” 6 Respondent’s Brief 15. 20 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. physical and moral qualifications.” Application of Klahr, 102 Ariz., at 531, 433 P. 2d, at 979. See also Application of Levine, 97 Ariz. 88, 90-91, 397 P. 2d 205, 206-207 (1964), and Application of Burke, 87 Ariz. 336, 339, 351 P. 2d 169, 172 (1960). The characterization of Bar admission as a right or as a privilège may be little more than an exercise in seman-tics. It seems to me that, whichever it may be, the State, in granting the authority to practice law, with what surely is the true privilège, not the right, to be entrusted with a client’s confidences, aspirations, freedom, life it-self, property, and the very means of livelihood, demands something more of the applicant than a formai certificate of completion of a course of legal study and the ability acceptably to answer a sériés of questions on a Bar examination. It presumably demands what fundamentally is character. And it is character that a State holds out to the public when it authorizes an applicant to practice law. 9. Judges and Bar Examiners, of course, should hesitate to judge too strictly those seeking entrance to the profession. Certainly the impatience and far-ranging attitudes of youthful years are not, in themselves, disqualifying. That is part of the maturing process, especially for future lawyers who must study, examine, select, and develop their philosophies of life and of their profession. Mr. Justice Frankfurter expressed it well: “The bar has not enjoyed prérogatives; it has been entrusted with anxious responsibilities. . . . From a profession charged with such responsibilities there must be exacted those qualifies of truth-speaking, of a high sense of honor, of granité discrétion, of the strictest observance of fiduciary responsibility, that hâve, throughout the centuries, been compendiously described as "moral character.’ BAIRD v. STATE BAR OF ARIZONA 21 1 Blackmun, J., dissenting “History overwhelmingly establishes that many youths like the petitioner were drawn by the mirage of communism during the dépréssion era, only to hâve their eyes later opened to reality. Such expériences no doubt may disclose a woolly mind or naive notions regarding the problems of society. But facts of history that we would be arbitrary in rejecting bar the presumption, let alone an irrebut-table presumption, that response to foolish, baseless hopes regarding the betterment of society made those who had entertained them but who later un-doubtedly came to their senses and their sense of responsibility ‘questionable characters.’ ” Schware N. Board of Bar Examiners, 353 U. S. 232, 247, 251 (1957) (concurring opinion). 10. An attorney, we sometimes tend to forget, is an offi-cer of the court. Ex parte Garland, 4 Wall., at 378. Perhaps we read too much into that phrase. But there is a distinct element of fact and of history in it. We hâve seen, of late, an overabundance of courtroom spectacle brought about by attorneys—frequently those who, being unlicensed in the particular State, are nevertheless permitted, by the court’s indulgence, to appear for clients in a given case—who give indications of ignoring their responsibility to the courts and to the judicial process. Question 27 bears upon this facet of an applicant’s character. 11. The plurality opinion acknowledges that Arizona has a legitimate interest in determining whether the ap-plicant has the “qualifies of character” requisite for the practice of law. But the opinion then goes on to pre-scribe when, in its judgment, the applicant has given a sufficient amount of information to the committee. I doubt if this Court is the proper tribunal to judge the sufficiency of material supplied for legal practice in Arizona. Of course there is a constitutional limit, but that 22 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. limit is marked by the relevant, by the excesses of un-reasonableness and of harassment, and by the otherwise constitutionally forbidden. It should not be marked at an arbitrary point where the applicant, for reasons of convenience or assumed self-protection or contrariness, décidés that enough is enough. 12. Finally, the State has a measure of a right to pro-tect itself. Its area of possible vulnerability is nowhere greater than in its courts and in its judicial process. Courtroom events disclosed in recent litigation vividly demonstrate this. See Illinois v. Allen, 397 U. S. 337 (1970) ; Mayberry v. Pennsylvania, 400 U. S. 455 (1971). Assurance that applicant Baird at least professes to refrain from forceful and violent overthrow of the Government of which, upon admission, she will become a true and working part, and under which, for better or for worse, she has lived and, judging by her excellent éducation, has prospered and enjoyed some benefits, is a subject of legitimate inquiry. As stated above, on this record I would affirm the judg-ment of the Suprême Court of Arizona. IN RE STOLAR 23 Syllabus IN RE STOLAR CERTIORARI TO THE SUPREME COURT OF OHIO No. 18. Argued December 9, 1969—Reargued October 14-15, 1970— Decided February 23, 1971 Petitioner, a 1968 law school graduate and a member of the New York Bar, applied for admission to the Ohio Bar. He made avail-able to Ohio ail the information he had given the New York Bar Committee, including answers to questions concerning organizations with which he was associated, his loyalty to the Government, and whether he was a member of a group seeking to effect changes in our form of government or to advance the interests of a foreign country. But petitioner refused to answer three questions on the Ohio application on the ground that they infringed his rights under the First and Fifth Amendments: (1) Question 12 (g), which asked whether he was a member of “any organization which advocates the overthrow of the government of the United States by force,” (2) Question 13, which asked for a list of ail “organizations of which you are or hâve been a member,” and (3) Question 7, which sought a list of ail “organizations of which you are or hâve be-come a member since registering as a law student.” The Ohio Suprême Court approved the bar investigating committee’s recommendation that petitioner’s application to take the bar examina -tion be denied. Held: The judgment of the Ohio Suprême Court is reversed and the case is remanded. Pp. 27-31. Reversed and remanded. Mr. Justice Black, joined by Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall, concluded that it was a déniai of petitioner’s First Amendment rights to refuse him admission to the Ohio bar simply because he declined to answer questions about his beliefs and associations. Baird n. State Bar of Arizona, ante, p. 1. Pp. 27-31. Mr. Justice Stewart concluded that Questions 7 and 13 are unconstitutional under Shelton v. Tucker, 364 U. S. 479, and that Question 12 (g), like Question 27 in Baird n. State Bar of Arizona, ante, p. 1, is constitutionally infirm under the First and Four-teenth Amendments since it is not confined to knowing membership in any organization that advocates violent overthrow of the Government. P. 31. 24 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. Black, J., announced the Court’s judgment and delivered an opinion in which Douglas, Brennan, and Marshall, JJ., joined. Stewart, J., filed an opinion concurring in the judgment, post, p. 31. Harlan, J., filed a dissenting opinion, post, p. 34. White, J., filed a dissenting opinion, ante, p. 10. Blackmun, J., filed a dissenting opinion in which Burger, C. J., and Harlan and White, JJ., joined, post, p. 31. Leonard B. Boudin reargued the cause for petitioner. With him on the briefs was David Rosenberg. Robert D. Macklin, Assistant Attorney General, reargued the cause for the State of Ohio and the Columbus Bar Association. With him on the brief were Paul W. Brown, Attorney General, Shelby V. Hutchins, and William H. Schneider. Mr. Justice Black announced the judgment of the Court and delivered an opinion in which Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join. This is the second of two cases* involving the refusai of States to admit applicants to practice law because they declined to answer questions relating to their beliefs about government and their affiliations with organiza-tions suspected of advocating the overthrow of government by force. These cases, which concern inquisitions about loyalty and government overthrow, are relies of a turbulent period known as the “McCarthy era,” which drew its name from Senator Joseph McCarthy from Wisconsin. We hâve just referred in our opinion in Baird n. State Bar of Arizona, ante, p. 1, to the confusion and uncertainty created by past cases in this constitutional field. The central question in ail of them has been the same, whether involving lawyers, doctors, marine workers, *The other is No. 15, Baird v. State Bar of Arizona, ante, p. 1. Cf. No. 49, Law Students Civil Rights Research Council v. Wadmond, post, p. 154. IN RE STOLAR 25 23 Opinion of Black, J. or State or Fédéral Government employées, namely: to what extent does the First or Fifth Amendment or other constitutional provision protect persons against govern-mental intrusion and invasion into private beliefs and views that hâve not ripened into any punishable conduct? Without attempting in that case to bring about a complété réconciliation of ail that this Court has previously said about this particular phase of First Amendment protection, we held that under the circumstances présent there, Mrs. Baird could not, consistently with the First Amendment, be denied a state license to practice law because she refused to state whether she had belonged to the Communist Party or any organization that advo-cated overthrow of the United States Government by force. Here we hold that Stolar’s refusais to answer certain questions asked him by the Ohio Bar Committee were also protected by the First Amendment. The facts are these : Stolar, whose home is in Rochester, New York, has an A. B. degree from the University of Rochester and received an LL. B. degree from New York University Law School in 1968. The dean of that school has certified that Stolar has received instructions in legal ethics, has a good moral character, and has suffi-cient knowledge and ability to discharge the duties of an attorney at law. He has a license to practice law in New York State. To become a member of the New York Bar, Stolar was asked and answered the foliowing questions, along with many others: “18. State whether you hâve participated in ac-tivities of a public or patriotic nature or in philanthropie, religions, or social services? If so, state the facts fully. “I was a Cub Scout and Boy Scout and Explorer Scout during elementary and high school. “I also participated fully in my Temple’s religious éducation programs until I went to college. 26 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. “In addition, my time spent as a VIST A is a service of the above descrïbed nature. “19. Do you believe in the principles underlying the form of government of the United States? Y es. “20. State whether you hâve been or are a mem-ber of any party or organization engaged in propa-gating or pledged to effect changes in the form of government provided for by the United States Constitution, or in advancing the interests of a foreign country? If so, state the facts fully. No. (Em-phasis supplied in part.) “21. Can you conscientiously, and do you, affirm, without any mental réservation, that you hâve been and are loyal to the Government of the United States? Y es. “24. (a) Hâve you studied the Canons of Ethics adopted by the American Bar Association? Y es. “(b) Do you unconditionally subscribe to the same? Y es. “(c) Will you conscientiously endeavor to con-form your professional conduct to them? Yes.” In 1969 Mr. Stolar applied to the Ohio Bar for admission to practice. He made available to Ohio ail the information he had previously given the New York Bar Committee, including his answers to the New York questions stated above. Stolar then answered a long sériés of questions posed by the Ohio committee. In response to oral interrogation he stated: “that he is not now and has never been a member of the Communist Party, of any socialist party, or of the Students for a Démocratie Society, and . . . that he has signed the standard U. S. Army pre-induction security oath, which has reference to the ‘Attorney General’s List.’ ” IN RE STOLAR 27 23 Opinion of Black, J. However, Stolar declined to answer certain questions on the Ohio application on the grounds they infringed his rights under the First and Fifth Amendments. These questions were: “12. State whether you hâve been, or pres-ently are ... (g) a member of any organization which advocates the overthrow of the government of the United States by force .... “13. List the names and addresses of ail clubs, societies or organizations of which you are or hâve been a member.” “7. List the names and addresses of ail clubs, societies or organizations of which you are or hâve been a member since registering as a law student.” Because of his refusai to answer these questions, one member of the committee who investigated Stolar recom-mended that he be denied admission. The other stated : “I found Mr. Stolar to be honest and forthright. His statements evidenced also a certain commit-ment to principle for its own sake, an unusually great amount of social awareness, and a degree of self-interest not reprehensible. On the basis of the interview and the background actually revealed in Mr. Stolar’s applications I hâve no réluctance to recommend Mr. Stolar for admission to the practice of law.” The full committee then recommended that petitioner’s application to take the Ohio Bar examination be denied. The Ohio Suprême Court approved the committee’s recommendation without opinion. We granted certiorari. 396 U. S. 816. We deal first with Ohio’s demands that petitioner Martin Stolar list ail the organizations to which he has belonged since registering as a law student and those of which he has ever been a member. In our view re- 28 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. quiring a Bar applicant to answer these questions is impermissible in light of the First Amendment, as was made clear in Shelton v. Tucker, 364 U. S. 479 (1960). At issue in Shelton was an Arkansas statute that required every state teacher, as a condition of employment, to file an affidavit listing every organization to which he had belonged within the preceding five years. The Court noted that this requirement impinged upon the teacher’s right to freedom of association because it placed “pressure upon a teacher to avoid any ties which might dis-please those who control his professional destiny . . . .” Id., at 486. Similarly here, the listing of an organization considered by committee members to be controversial or “subversive” is likely to cause delay and extensive interrogation or simply déniai of admission to the Bar. Respondent committee frankly suggests that the listing of an organization which it felt “espoused illégal aims” would cause it to “investigate further.” Law students who know they must survive this screening process before practicing their profession are encouraged to protect their future by shunning unpopular or controversial organiza-tions. Cf. Speiser v. Randall, 357 U. S. 513 (1958). The committee suggests its “listing” question serves a legitimate interest because it needs to know whether an applicant has belonged to an organization which has “espoused illégal aims” and whether the applicant him-self has espoused such aims. But the First Amendment prohibits Ohio from penalizing an applicant by denying him admission to the Bar solely because of his membership in an organization. Baird v. State Bar of Arizona, supra; cf. United States v. Robel, 389 U. S. 258, 266 (1967); Keyishian n. Board of Regents, 385 U. S. 589, 607 (1967). Nor may the State penalize petitioner solely because he personally, as the committee suggests, IN RE STOLAR 29 23 Opinion of Black, J. “espouses illégal aims.” See Cantwell v. Connecticut, 310 U. S. 296, 303-304 (1940); Baird v. State Bar of Arizona, supra. The committee also argues it needs answers to Questions 7 and 13 because responses might direct its attention to persons who hâve known an applicant and who could supply information relevant to his qualifications. Undoubtedly Ohio has a legitimate interest in determin-ing whether an applicant has “the qualifies of character and the professional compétence requisite to the practice of law.” Baird v. State Bar of Arizona, supra. But petitioner Stolar, already a member in good standing of the New York Bar, supplied the Ohio committee with extensive personal and professional information as well as numerous character references to enable it to make the necessary investigation and détermination. More-over, even though irrelevant to his fitness to practice law, Stolar’s answers to questions on the New York application provided Ohio with substantially the information it was seeking by Questions 7, 12 (g), and 13. The information contained in the two applications in-cluded petitioner’s law school; every address at which he had ever lived; the names, addresses, and occupations of his parents; the names and addresses of his elementary school, his high school and high school principal; the names of nine former employers (which in-cluded three different law firms for which he had done summer work) ; his “criminal record” (which consisted of two speeding convictions) ; nine different people as character references (two of whom had known Stolar for more than 20 years) ; and extensive information about his previous activities (e. g., law school moot court, graduate advisor at N. Y. U., Cub Scout, Boy Scout, Explorer Scout, and his temple’s religious éducation programs). 415-649 0 - 72 -8 30 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. We conclude also that Ohio may not require an applicant for admission to the Bar to state whether he has been or is a “member of any organization which advocates the overthrow of the government of the United States by force.” As we noted above, the First Amendment prohibits Ohio from penalizing a man solely because he is a member of a particular organization. See also Baird v. State Bar of Arizona, supra. Since this is true, we can see no legitimate state interest which is served by a question which sweeps so broadly into areas of belief and association protected against government invasion. Cantwell v. Connecticut, 310 U. S. 296, 303-304 (1940); United States v. Robel, 389 U. S. 258, 266 (1967); Keyishian N. Board of Regents, 385 U. S. 589, 607 (1967) ; Baird v. State Bar of Arizona, supra; Baggett N. Bullitt, 377 U. S. 360 (1964). There is not one word in this entire record that re-flects adversely on Mr. Stolar’s moral character or his professional compétence. Although there were three questions that he did not answer with a simple “yes” or “no,” he did answer ail of the Committee’s questions relevant to his fitness and compétence to practice law. It is difficult if not impossible to see how the State of Ohio could hâve been obstructed or frustrated to any extent in determining Mr. Stolar’s fitness to practice law by his failure to answer the questions more fully. The record shows a young man who, from his boyhood up, had no adverse marks except for two speeding convictions. He answered numerous prying questions about Personal affairs that could hardly hâve been necessary for a State interested only in whether he would make an honest lawyer faithful to his clients. The questions he did not answer related only to his beliefs and associations, both protected by the First Amendment. The State points to not one overt act on Stolar’s part that even suggests a possible reason for denying his appli IN RE STOLAR 31 23 Blackmun, J., dissenting cation. Here, as in Baird v. State Bar of Arizona, it was a déniai of a Bar applicant’s First Amendment rights to refuse him admission simply because he declined to answer questions about his beliefs and associations. The judgment of the Ohio Suprême Court is reversed and the case remanded for further proceedings not in-consistent with this opinion. It is so ordered. [For dissenting opinion of Mr. Justice White, see ante, p. 10.] Mr. Justice Stewart, concurring in the judgment. Ohio’s Questions 7 and 13 are plainly unconstitutional under Shelton N. Tucker, 364 U. S. 479. In addition, Question 12 (g) suffers from the same constitutional dèficiency as does Arizona’s Question 27 in Baird N. State Bar of Arizona, ante, p. 1. For these reasons I agréé that the judgment before us must be reversed. Mr. Justice Blackmun, with whom The Chief Justice, Mr. Justice Harlan, and Mr. Justice White join, dissenting. This case, also argued here for the second time, présents another instance of a well-educated (academie degree from the University of Rochester; law degree from New York University) and obviously able young person who seeks admission to the Bar, but, to an extent at least, upon his own terms. His case is made the more acute and appealing because he already has been admit-ted to practice in the State of New York but now finds himself thwarted in a like endeavor in Ohio. The decisions in Konigsberg v. State Bar, 366 U. S. 36 (1961), and In re Anastaplo, 366 U. S. 82 (1961), are again challenged. 32 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. The plurality opinion has set forth the pertinent questions asked of Martin Robert Stolar, when he sought admission to the New York Bar in 1968, and Stolar’s answers to those questions. At that time he was willing to go so far as specifically to profess even his belief in the principles underlying the form of government of the United States and his loyalty to that government, and also, just as specifically, to go so far as to deny that he was, or ever had been, a member of any party or organization pledged to effect changes in the form of our government or engaged in advancing the interest of a foreign country. The propriety of these very questions, which Stolar answered apparently without hésitation in New York in 1968, was seriously questioned subsequently in Law Students Civil Rights Research Council v. Wad-mond, 299 F. Supp. 117, 130 (SDNY 1969), now affirmed, post, p. 154. In 1969, in Ohio, Stolar apparently again had no hésitation in professing at oral interview that he was not, and never had been, a member of the Communist Party. But, although the one seems to include the other, he flatly refused, on stated Fifth Amendment grounds, to say (Question 12 (g)) whether he was or had been a member of any organization which advocates the overthrow of the Government of the United States by force. He also refused, on Fifth Amendment grounds, to list (Questions 13 and 7) organizations of which he was or had been a member. I may assume, for présent purposes, that the general and broadly phrased list-your-organizations inquiries, that is, Questions 13 and 7, are improper and impermis-sible under the Court’s holding, by another five-to-four vote, in Shelton v. Tucker, 364 U. S. 479 (1960), despite the presence of what seems to me to be a somewhat sig-nificant différence between nontenured school teachers and about-to-be-licensed attorneys. This assumption, IN RE STOLAR 33 23 Blackmun, J., dissenting however, does not terminale Stolar’s case, for Question 12 (g), with its spécifie inquiry about membership in organizations advocating overthrow by force, remains to be considered. My position with respect to a refusai to respond to a question such as Question 12 (g) is set forth in my dissent in Baird v. State Bar oj Arizona, ante, p. 11, and needs no detailed répétition here. I note only (a) the inconsistency of Stolar’s willingness to respond orally and his unwillingness to respond in writing, and (b) that, here again, membership, présent or past, in an organization of the kind specified, although relevant in the Bar admission context, in and of itself is not conclusive upon the issue of admission to the Bar. Ohio concédés, as Arizona did in Baird, that the significance lies in some-thing more than mere membership. Neither am I content with the conclusion reached in the plurality opinion that Stolar’s responses to New York in 1968 should suffice for responses to Ohio in 1969. That kind of reasoning would compel one to conclude that be-cause an applicant is admitted to the Bar of one State, he surely must be admitted to the Bar of any other State. We might reach that froutier one day on some new and as yet undeveloped constitutional concept, but I doubt whether we hâve reached it yet. New York’s range of inquiry and her area of particular interest may very well differ from Ohio’s, and each may be constitutionally permissible. Further, an answer true in 1968 may not be true at ail in 1969. Time passes and changes can take place even within a few months. Although I readily concédé that the Ohio question (just as the Arizona question in Baird) could hâve been better phrased, the approach of the plurality for reversai to the inquiry is, I feel, somewhat unrealistic. As in Baird, and as noted above, it is not a mere question of membership présent or past. It is a question of knowing 34 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. membership and of willingness to participate in the force-ful destruction of government. This is the crux. To forestall inquiry at the threshold stultifies Ohio’s appro-priate concern as to faithful adhérence to a lawyer’s trust when the State is about to vest great professional and fiduciary power in those who seek entrance to the Bar. On this record, I would affirm. Mr. Justice Harlan, concurring in No. 49, post, p. 154, and dissenting in No. 15, ante, p. 1, and No. 18. In joining Mr. Justice Stewart’s opinion for the Court in the Wadmond case, No. 49, post, p. 154, and Mr. Justice Blackmun’s dissenting opinions in the Baird case, No. 15, ante, p. 11, and in the présent case, I am constrained to add these remarks.* My Brother Black’s opinion announcing the judgments of the Court in Baird and in the présent case, and his dissenting opinion in the Wadmond case, could easily leave the impression that the three States involved are denying Bar admission to professionally qualified candidates solely by reason of their membership in so-called subversive organizations, irrespective of whether that membership is born of a purely philosophical cast of mind or of a spécifie purpose to engage in illégal action, or that these States are at least trying to discourage prospective Bar candidates from joining su ch organizations. In the latter respect, my Brother Marshall’s opinion, post, p. 185, seems to me to lend itself to a similar interprétation. If any-thing in these records could fairly be taken as pointing to either such conclusion, I would be found on the “revers-ing” side of these cases. The records, however, adum- *While petitioners in Nos. 15 and 18 hâve also sought to assert Fifth Amendment claims against self-incrimination, today’s opinions hâve treated ail the cases only in terms of First Amendment considérations, and I too shall proceed on that basis. IN RE STOLAR 35 23 Opinion of Harlan, J. brated by the représentations of the responsible lawyers who appeared for the States, in my opinion belie any such inferences. They show no more than a refusai to cer-tify candidates who deliberately, albeit in good faith, refuse to assist the Bar-admission authorities in their “fitness” investigations by declining fully to answer the questionnaires. I could hardly believe that anyone would dispute a State’s right to refuse admission to the Bar to an applicant who avowed or was shown to possess a dedication to overthrowing governmental authority by force or to supplanting the rule of law by incitement to individual or group violence as the best means of attaining desired goals. One could question the efficacy or wisdom of questionnaires of the kind involved in these cases as a means of weeding out occasional misfits from the general run of Bar candidates, or criticize as unduly complicated or pervasive some aspects of such questionnaires. And one may also be understanding of the considérations which in this day and âge breed lawsuits like these. But we should nonetheless take care lest the indulging of such points of view lead us into warped constitutional decision. In my opinion the course chosen by these States can-not be said to be forbidden by the Constitution. I do not consider that the “less drastic means” test which has been applied in some First Amendment cases, see NAACP v. Alabama, 377 U. S. 288, 307-308 (1964), and cases cited therein, suffices to justify this Court in assuming general oversight of State investigatory procedures relating to Bar admissions. Nor do I think that the questioning of candidates as to their beliefs in violent overthrow neces-sarily runs afoul of true First Amendment concerns. I do not dispute that the First Amendment, as reflected in the Fourteenth, prevents States from denying admission to candidates merely because of theoretical beliefs in the “right” of révolution, but I do maintain that there 36 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. is no constitutional barrier to denying admission to those who seek entry to the profession for the very purpose of doing away with the orderly processes of law, and that temperate inquiry into the character of their beliefs in this regard, which is ail that is shown here, is a relevant and permissible course to that end. It seems to me little short of chimerical to suggest that the independence of the Bar is threatened unless this Court steps in and puts a constitutional end to such a practice. Cf. Bâtes v. Little Rock, 361 U. S. 516 (1960); Barenblatt v. United States, 360 U. S. 109 (1959). While I hope that I am no less sensitive than others on the Court to First Amendment values, I must say that the pervasive supervision over state Bar admission procedures which is now asked of us would work a most extravagant expansion of the current Schilling effects” approach to First Amendment doctrine. Knowing some-thing of the great importance which the New York Bar attaches to the independence of the individual lawyer, I hâve little doubt but that the candidates involved in Wadmond will promptly gain admission to the Bar if they straightforwardly answer the inquiries put to them without further ado. And I should be greatly surprised if the same were not true as to Mrs. Baird and Mr. Stolar in Arizona and Ohio. But if I am mistaken and it should develop that any of these candidates are excluded simply because of unorthodox or unpopular beliefs, it would then be time enough for this Court to intervene. YOUNGER v. HARRIS 37 Syllabus YOUNGER, DISTRICT ATTORNEY OF LOS ANGELES COUNTY v. HARRIS et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA No. 2. Argued April 1, 1969—Reargued April 29 and November 16, 1970—Decided February 23, 1971 Appellee Harris, who had been indicted for violating the California Criminal Syndicalism Act, sued in the Fédéral District Court to enjoin appellant, the county District Attorney, from prosecuting him, contending that the Act is unconstitutional on its face and inhibits him in exercising his free-speech rights. Appellees Dan and Hirsch, claiming that the prosecution of Harris would “inhibit” them from peacefully advocating the program of the political party to which they belonged, and appellee Broslawsky, a college pro-fessor, claiming that the prosecution made him “uncertain” as to whether his teaching and reading practices would subject him to prosecution, intervened as plaintiffs. Ail asserted that they would sufïer irréparable injury unless a fédéral injunction was issued. A three-judge court, relying on Dombrowski n. Poster, 380 U. S. 479, held the Act void for vagueness and overbreadth, and enjoined Harris’ prosecution. Held: 1. There is no basis for équitable jurisdiction based on the allégations of appellees other than Harris, who hâve not been indicted, arrested, or threatened with prosecution, and the normal course of a state criminal prosecution cannot be blocked on the basis of fears of prosecution that are merely spéculative. Pp. 41-42. 2. Fédéral courts will not enjoin pending state criminal prose-cutions except under extraordinary circumstances where the danger of irréparable loss is both great and immédiate in that (unlike the situation affecting Harris) there is a threat to the plaintiff’s fed-erally protected rights that cannot be eliminated by his defense against a single prosecution. The decision in Dombrowski, supra, which involved alleged bad-faith harassment and is factually dis-tinguishable from this case, does not substantially broaden the availability of injunctions against state criminal prosecutions. Pp. 43-54. 281 F. Supp. 507, reversed. 38 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Black, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Stewart, J., filed a concurring opinion, in which Harlan, J., joined, post, p. 54. Brennan, J., filed an opinion concurring in the resuit, in which White and Marshall, JJ., joined, post, p. 56. Douglas, J., filed a dissenting opinion, post, p. 58. Clifford K. Thompson, Jr., Deputy Attorney General of California, argued the cause for appellant on the second reargument. Albert W. Harris, Jr., Assistant Attorney General, argued the cause for appellant on the original argument and on the first reargument. With them on the briefs were Thomas C. Lynch, Attorney General, and Evelle J. Younger, pro se. A. L. Wirin argued the cause for appellees on the rearguments. With him on the briefs were Fred Okrand and Frank S. Pestana. Sam Rosenwein argued the cause for appellees on the original argument. With him on the brief was Mr. Pestana. Mr. Justice Black delivered the opinion of the Court. Appellee, John Harris, Jr., was indicted in a California state court, charged with violation of the California Penal Code §§ 11400 and 11401, known as the California Criminal Syndicalism Act, set out below.1 He then filed 1 “§ 11400. Définition “ ‘Criminal syndicalism’ as used in this article means any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning wilful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial owner-ship or control, or effecting any political change.” “§ 11401. Offense; punishment “Any person who: “1. By spoken or written words or personal conduct advocates, teaches or aids and abets criminal syndicalism or the duty, necessity or propriety of committing crime, sabotage, violence or any unlawful YOUNGER v. HARRIS 39 37 Opinion of the Court a complaint in the Fédéral District Court, asking that court to enjoin the appellant, Younger, the District Attorney of Los Angeles County, from prosecuting him, and alleging that the prosecution and even the presence of the Act inhibited him in the exercise of his rights of free speech and press, rights guaranteed him by the First and Fourteenth Amendments. Appellees Jim Dan and Diane Hirsch intervened as plaintiffs in the suit, claiming that the prosecution of Harris would inhibit them as members of the Progressive Labor Party from peacefully advocating the program of their party, which was to replace capitalism with socialism and to abolish the profit System of production in this country. Appellee Farrell Broslawsky, an instructor in history at Los Angeles Valley College, also intervened claiming that the prosecution of Harris made him uncertain as to whether he could method of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change; or “2. Wilfully and deliberately by spoken or written words justifies or attempts to justify criminal syndicalism or the commission or attempt to commit crime, sabotage, violence or unlawful methods of terrorism with intent to approve, advocate or further the doctrine of criminal syndicalism; or “3. Prints, publishes, edits, issues or circulâtes or publicly display s any book, paper, pamphlet, document, poster or written or printed matter in any other form, containing or carrying written or printed advocacy, teaching, or aid and abetment of, or advising, criminal syndicalism; or “4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism; or “5. Wilfully by personal act or conduct, practices or commits any act advised, advocated, taught or aided and abetted by the doctrine or precept of criminal syndicalism, with intent to accomplish a change in industrial ownership or control, or effecting any political change ; “Is guilty of a felony and punishable by imprisonment in the state prison not less than one nor more than 14 years.” 40 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. teach about the doctrines of Karl Marx or read from the Communist Manifesto as part of his classwork. Ail claimed that unless the United States court restrained the state prosecution of Harris each would suffer immédiate and irréparable injury. A three-judge Fédéral District Court, convened pursuant to 28 U. S. C. § 2284, held that it had jurisdiction and power to restrain the District Attorney from prosecuting, held that the State’s Criminal Syndicalism Act was void for vagueness and overbreadth in violation of the First and Fourteenth Amendments, and accordingly restrained the District Attorney from “further prosecution of the currently pending action against plaintiff Harris for alleged violation of the Act.” 281 F. Supp. 507, 517 (1968). The case is before us on appeal by the State’s District Attorney Younger, pursuant to 28 U. S. C. § 1253. In his notice of appeal and his jurisdictional statement appellant presented two questions: (1) whether the decision of this Court in Whitney v. California, 274 U. S. 357, holding California’s law constitutional in 1927 was binding on the District Court and (2) whether the State’s law is constitutional on its face. In this Court the brief for the State of California, filed at our request, also argues that only Harris, who was indicted, has standing to challenge the State’s law, and that issuance of the injunction was a violation of a longstanding judicial policy and of 28 U. S. C. § 2283, which provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or efïectuate its judgments.” See, e. g., Atlantic Coast Line R. Co. v. Engineers, 398 U. S. 281, 285-286 (1970). Without regard to the ques YOUNGER v. HARRIS 41 37 Opinion of the Court tions raised about Whitney v. California, supra, since overruled by Brandenburg v. Ohio, 395 U. S. 444 (1969), or the constitutionality of the state law, we hâve con-cluded that the judgment of the District Court, enjoin-ing appellant Younger from prosecuting under these California statutes, must be reversed as a violation of the national policy forbidding fédéral courts to stay or enjoin pending state court proceedings except under spécial circumstances.2 We express no view about the circumstances under which fédéral courts may act when there is no prosecution pending in state courts at the time the fédéral proceeding is begun. I Appellee Harris has been indicted, and was actually being prosecuted by California for a violation of its Criminal Syndicalism Act at the time this suit was filed. He thus has an acute, live controversy with the State and its prosecutor. But none of the other parties plain-tiff in the District Court, Dan, Hirsch, or Broslawsky, has such a controversy. None has been indicted, arrested, or even threatened by the prosecutor. About these three the three-judge court said: “Plaintiffs Dan and Hirsch allégé that they are members of the Progressive Labor Party, which advocates change in industrial ownership and political change, and that they feel inhibited in advo- 2Appellees did not explicitly ask for a declaratory judgment in their complaint. They did, however, ask the District Court to grant “such other and further relief as to the Court may seem just and proper,” and the District Court in fact granted a declaratory judgment. For the reasons stated in our opinion today in Samuels v. Mackell, post, p. 66, we hold that declaratory relief is also im-proper when a prosecution involving the challenged statute is pending in state court at the time the fédéral suit is initiated. 42 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. cating the program of their political party through peaceful, non-violent means, because of the presence of the Act ‘on the books,’ and because of the pending criminal prosecution against Harris. Plaintiff Bros-lawsky is a history instructor, and he allégés that he is uncertain as to whether his normal practice of teaching his students about the doctrines of Karl Marx and reading from the Communist Manifesto and other revolutionary works may subject him to prosecution for violation of the Act.” 281 F. Supp., at 509. Whatever right Harris, who is being prosecuted under the state syndicalism law may hâve, Dan, Hirsch, and Bros-lawsky cannot share it with him. If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allégation to be true—either on the admission of the State’s district attorney or on any other evidence— then a genuine controversy might be said to exist. But here appellees Dan, Hirsch, and Broslawsky do not claim that they hâve ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible. They claim the right to bring this suit solely because, in the language of their complaint, they “feel inhibited.” We do not think this allégation, even if true, is sufficient to bring the équitable jurisdiction of the fédéral courts into play to enjoin a pending state prosecution. A fédéral lawsuit to stop a prosecution in a state court is a serious matter. And persons having no fears of state prosecution except those that are imaginary or spéculative, are not to be accepted as appropriate plain-tiffs in such cases. See Golden v. Zwickler, 394 U. S. 103 (1969). Since Harris is actually being prosecuted under the challenged laws, however, we proceed with him as a proper party. YOUNGER v. HARRIS 43 37 Opinion of the Court II Since the beginning of this country’s history Congress has, subject to few exceptions, manifested a desire to permit State courts to try state cases free from interférence by fédéral courts. In 1793 an Act uncondition-ally provided: “[N]or shall a writ of injunction be granted to stay proceedings in any court of a state . . . .” 1 Stat. 335, c. 22, § 5. A comparison of the 1793 Act with 28 U. S. C. § 2283, its present-day successor, graphically illustrâtes how few and minor hâve been the exceptions granted from the fiat, prohibitory language of the old Act. During ail this lapse of years from 1793 to 1970 the statu tory exceptions to the 1793 congressional enactment hâve been only three: (1) “except as ex-pressly authorized by Act of Congress”; (2) “where necessary in aid of its jurisdiction”; and (3) “to protect or effectuate its judgments.” In addition, a judicial exception to the longstanding policy evidenced by the statute has been made where a person about to be prose-cuted in a state court can show that he will, if the proceeding in the state court is not enjoined, suffer irréparable damages. See Ex parte Young, 209 U. S. 123 (1908).3 The précisé reasons for this longstanding public policy against fédéral court interférence with state court proceedings hâve never been specifically identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adéquate remedy at law and will not suffer irréparable 3 For an interesting discussion of the history of this congressional policy up to 1941, see Toucey v. New York Life Ins. Co., 314 U. S. 118 (1941). 44 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. in jury if denied équitable relief. The doctrine may orig-inally hâve grown out of circumstances peculiar to the English judicial System and not applicable in this country, but its fundamental purpose of restraining equity juris-diction within narrow limits is equally important under our Constitution, in order to prevent érosion of the rôle of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adéquate to protect the rights asserted. This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital considération, the notion of “comity,” that is, a proper respect for state functions, a récognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as “Our Federalism,” and one familiar with the profound debates that ushered our Fédéral Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of “Our Federalism.” The concept does not mean blind deference to “States’ Rights” any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a System in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect fédéral rights and fédéral interests, always endeavors to do so in ways that will not unduly interfère with the legitimate activities of the States. It should never be forgotten that this slogan, “Our Federalism,” born in the early struggling days of YOUNGER v. HARRIS 45 37 Opinion of the Court our Union of States, occupies a highly important place in our Nation’s history and its future. This brief discussion should be enough to suggest some of the reasons why it has been perfectly natural for our cases to repeat time and time again that the normal thing to do when fédéral courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions. In Fenner v. Boykin, 271 U. S. 240 (1926), suit had been brought in the Fédéral District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interstate commerce. The Court, in a unanimous opinion made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very spécial circumstances: “Ex parte Young, 209 U. S. 123, and foliowing cases hâve established the doctrine that when abso-lutely necessary for protection of constitutional rights courts of the United States hâve power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irréparable loss is both great and immédiate. Ordinarily, there should be no interférence with such officers; pri-marily, they are charged with the duty of prosecuting offenders against the laws of the State and must décidé when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adéquate protection.” Id., at 243-244. These principles, made clear in the Fenner case, hâve been repeatedly followed and reaffirmed in other cases involv-ing threatened prosecutions. See, e. g., Spielman Motor 415-649 0 - 72 -9 46 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Sales Co. v. Dodge, 295 U. S. 89 (1935) ; Beal v. Missouri Pac. R. Co., 312 U. S. 45 (1941); Watson v. Buck, 313 U. S. 387 (1941); Williams v. Miller, 317 U. S. 599 (1942); Douglas N. City of Jeannette, 319 U. S. 157 (1943). In ail of these cases the Court stressed the importance of showing irréparable in jury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against fédéral interférence with state criminal prosecutions, even irréparable in jury is insufficient un-less it is “both great and immédiate.” Fenner, supra. Certain types of in jury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be con-sidered “irréparable” in the spécial legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e. g., Ex parte Young, supra, at 145-147. Thus, in the Buck case, supra, at 400, we stressed: “Fédéral injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. ‘No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawiul is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irréparable injury to the plaintiff who seeks its aid.’ Beal v. Missouri Pacific Railroad Corp., 312 U. S. 45, 49.” YOUNGER v. HARRIS 47 37 Opinion of the Court And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that: “It does not appear from the record that petitioners hâve been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith . . . .” 319 U. S., at 164. This is where the law stood when the Court decided Dombrowski v. Poster, 380 U. S. 479 (1965), and held that an injunction against the enforcement of certain state criminal statutes could properly issue under the circumstances presented in that case.4 In Dombrowski, 4 Neither the cases dealing with standing to raise daims of vague-ness or overbreadth, e. g., Thornhill v. Alabama, 310 U. S. 88 (1940), nor the loyalty oath cases, e. g., Baggett v. Bullitt, 377 U. S. 360 (1964), changed the basic principles governing the propriety of injunctions against state criminal prosecutions. In the standing cases we allowed attacks on overly broad or vague statutes in the absence of any showing that the defendant’s conduct could not be regulated by some properly drawn statute. But in each of these cases the statute was not merely vague or overly broad “on its face”; the statute was held to be vague or overly broad as construed and applied to a particular défendant in a particular case. If the statute had been too vague as written but sufficiently narrow as applied, prosecutions and convictions under it would ordinarily hâve been permissible. See Dombrowski, supra, at 491 n. 7. In Baggett and similar cases we enjoined state officiais from discharging employées who failed to take certain loyalty oaths. We held that the States were without power to exact the promise involved, with their vague and uncertain content concerning advocacy and political association, as a condition of employment. Apart from the fact that any plaintiff discharged for exercising his constitutional right to refuse to take the oath would hâve had no adéquate remedy at law, the relief sought was of course the kind that raises no spécial problem—an injunction against allegedly unconstitutional state action (discharging the employées) that is not part of a criminal prosecution. 48 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. unlike many of the earlier cases denying injunctions, the complaint made substantial allégations that: “the threats to enforce the statutes against appel-lants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.” 380 U. S., at 482. The appellants in Dombrowski had offered to prove that their offices had been raided and ail their files and records seized pursuant to search and arrest warrants that were later summarily vacated by a state judge for lack of probable cause. They also offered to prove that despite the state court order quashing the warrants and suppressing the evidence seized, the prosecutor was continuing to threaten to initiate new prosecutions of appellants under the same statutes, was holding public hearings at which photostatic copies of the illegally seized documents were being used, and was threatening to use other copies of the illegally seized documents to obtain grand jury in-dictments against the appellants on charges of violating the same statutes. These circumstances, as viewed by the Court sufficiently establish the kind of irréparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify fédéral intervention. See, e. g., Beal, supra, at 50. Indeed, after quoting the Court’s statement in Douglas concern-ing the very restricted circumstances under which an injunction could be justified, the Court in Dombrowski went on to say: “But the allégations in this complaint depict a situation in which defense of the State’s criminal YOUNGER v. HARRIS 49 37 Opinion of the Court prosecution will not assure adéquate vindication of constitutional rights. They suggest that a substan-tial loss of or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse détermination. These allégations, if true, clearly show irréparable injury.” 380 U. S., at 485-486. And the Court made clear that even under these circumstances the District Court issuing the injunction would hâve continuing power to lift it at any time and remit the plaintiffs to the state courts if circumstances war-ranted. 380 U. S., at 491, 492. Similarly, in Cameron v. Johnson, 390 U. S. 611 (1968), a divided Court denied an injunction after finding that the record did not estab-lish the necessary bad faith and harassment; the dissenting Justices themselves stressed the very limited rôle to be allowed for fédéral injunctions against state criminal prosecutions and difïered with the Court only on the question whether the particular facts of that case were sufficient to show that the prosecution was brought in bad faith. It is against the background of these principles that we must judge the propriety of an injunction under the circumstances of the présent case. Here a proceeding was already pending in the state court, affording Harris an opportunity to raise his constitutional daims. There is no suggestion that this single prosecution against Harris is brought in bad faith or is only one of a sériés of repeated prosecutions to which he will be subjected. In other words, the injury that Harris faces is solely “that incidental to every criminal proceeding brought lawfully and in good faith,” Douglas, supra, and there-fore under the settled doctrine we hâve already described he is not entitled to équitable relief “even if such statutes are unconstitutional,” Buck, supra. 50 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. The District Court, however, thought that the Dom-browski decision substantially broadened the availability of injunctions against state criminal prosecutions and that under that decision the fédéral courts may give équitable relief, without regard to any showing of bad faith or harassment, whenever a state statu te is found “on its face” to be vague or overly broad, in violation of the First Amendment. We recognize that there are some state-ments in the Dombrowski opinion that would seem to support this argument. But, as we hâve already seen, such statements were unnecessary to the decision of that case, because the Court found that the plaintiffs had alleged a basis for équitable relief under the long-estab-lished standards. In addition, we do not regard the rea-sons adduced to support this position as sufficient to jus-tify such a substantial departure from the established doctrines regarding the availability of injunctive relief. It is undoubtedly true, as the Court stated in Dombrowski, that “[a] criminal prosecution under a statute regu-lating expression usually involves impondérables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms.” 380 U. S., at 486. But this sort of “chilling effect,” as the Court called it, should not by itself justify fédéral intervention. In the first place, the chilling effect cannot be satisfactorily eliminated by fédéral injunctive relief. In Dombrowski itself the Court stated that the injunction to be issued there could be lifted if the State obtained an “acceptable limiting construction” from the state courts. The Court then made clear that once this was done, prosecutions could then be brought for conduct occurring before the narrowing construction was made, and proper convictions could stand so long as the défendants were not deprived of fair warning. 380 U. S., at 491 n. 7. The kind of relief granted in Dombrowski thus does not effectively eliminate uncertainty as to the coverage of the state YOUNGER v. HARRIS 51 37 Opinion of the Court statute and leaves most citizens with virtually the same doubts as before regarding the danger that their conduct might eventually be subjected to criminal sanctions. The chilling effect can, of course, be eliminated by an injunction that would prohibit any prosecution whatever for conduct occurring prior to a satisfactory rewriting of the statute. But the States would then be stripped of ail power to prosecute even the socially dangerous and constitutionally unprotected conduct that had been cov-ered by the statute, until a new statute could be passed by the state législature and approved by the fédéral courts in potentially lengthy trial and appellate proceed-ings. Thus, in Dombrowski itself the Court carefully reaffirmed the principle that even in the direct prosecution in the State’s own courts, a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problems. Moreover, the existence of a “chilling effect,” even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for pro-hibiting state action. Where a statute does not directly abridge free speech, but—while regulating a subject within the State’s power—tends to hâve the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so. Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296 (1940); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967). Just as the incidental “chilling effect” of such statutes does not auto-matically render them unconstitutional, so the chilling effect that admittedly can resuit from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the im 52 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. portant and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution. Beyond ail this is another, more basic considération. Procedures for testing the constitutionality of a statute “on its face” in the manner apparently contemplated by Dombrowski, and for then enjoining ail action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the fédéral courts in our constitutional plan. The power and duty of the judiciary to déclaré laws unconstitutional is in the final analysis derived from its responsibility for resolving concrète disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, con-sistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. Marbury n. Madison, 1 Cranch 137 (1803). But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. Ever since the Constitutional Convention rejected a proposai for having members of the Suprême Court render advice concerning pending législation 5 it has been clear that, even when suits of this kind involve a “case or contro-versy” sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judi- 5 See 1 The Records of the Fédéral Convention of 1787, p. 21 (Far-rand ed. 1911). YOUNGER v. HARRIS 53 37 Opinion of the Court ciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above ail the spéculative and amorphous nature of the required line-by-line analysis of detailed statutes, see, e. g., Landry n. Daley, 280 F, Supp. 938 (ND 111. 1968), rev’d sub nom. Boyle v. Landry, post, p. 77, ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. In light of this fundamental conception of the Framers as to the proper place of the fédéral courts in the govern-mental processes of passing and enforcing laws, it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process. For these reasons, fundamental not only to our fédéral System but also to the basic functions of the Judicial Branch of the National Government under our Constitution, we hold that the Dombrowski decision should not be regarded as having upset the settled doctrines that hâve always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a fédéral court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute “on its face” abridges First Amendment rights. There may, of course, be extraordinary circumstances in which the necessary irréparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment. For example, as long ago as the Buck case, supra, we indicated: “It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against 54 OCTOBER TERM, 1970 Stewart, J., concurring 401 U. S. whomever an effort might be made to apply it.” 313 U. S., at 402. Other unusual situations calling for fédéral intervention might also arise, but there is no point in our attempting now to specify what they might be. It is sufficient for purposes of the présent case to hold, as we do, that the possible unconstitutionality of a statute “on its face” does not in itself justify an injunction against good-faith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for équitable relief. Because our holding rests on the absence of the factors necessary under équitable principles to justify fédéral intervention, we hâve no occasion to consider whether 28 U. S. C. § 2283, which prohibits an injunction against state court proceedings “except as expressly authorized by Act of Congress” would in and of itself be controlling under the circumstances of this case. The judgment of the District Court is reversed, and the case is remanded for further proceedings not incon-sistent with this opinion. Reversed. Mr. Justice Stewart, with whom Mr. Justice Harlan joins, concurring.* The questions the Court décidés today are important ones. Perhaps as important, however, is a récognition of the areas into which today’s holdings do not neces-sarily extend. In ail of these cases, the Court deals only *[This opinion applies also to No. 7, Samuels et al. v. Mackell et al., and No. 9, Fernandez n. Mackell et al., post, p. 66; No. 41, Dyson et al. v. Stein, post, p. 200; and No. 83, Byrne et al. n. Kara-lexis et al., post, p. 216.] YOUNGER v. HARRIS 55 37 Stewart, J., concurring with the proper policy to be followed by a fédéral court when asked to intervene by injunction or declaratory judgment in a criminal prosecution which is contempo-raneously pending in a state court. In basing its decisions on policy grounds, the Court does not reach any questions concerning the independent force of the fédéral anti-injunction statute, 28 U. S. C. § 2283. Thus we do not décidé whether the word “injunction” in § 2283 should be interpreted to include a declaratory judgment, or whether an injunction to stay proceedings in a state court is “expressly authorized” by § 1 of the Civil Rights Act of 1871, now 42 U. S. C. § 1983.1 And since ail these cases involve state criminal prosecutions, we do not deal with the considérations that should govern a fédéral court when it is asked to intervene in state civil proceedings, where, for various reasons, the balance might be struck differently.2 Finally, the Court today does not résolve the problems involved when a fédéral court is asked to give injunctive or declaratory relief from future state criminal prosecutions. 1 See also Cameron v. Johnson, 390 U. S. 611, 613-614, n. 3; Dombrowski v. Pfister, 380 U. S. 479, 484 n. 2. 2 Courts of equity hâve traditionally shown greater réluctance to intervene in criminal prosecutions than in civil cases. See ante, at 43-44; Douglas v. City of Jeannette, 319 U. S. 157, 163-164. The offense to state interests is likely to be less in a civil proceeding. A State’s decision to classify conduct as criminal provides some indica-cation of the importance it has ascribed to prompt and unencum-bered enforcement of its law. By contrast, the State might not even be a party in a proceeding under a civil statute. Cf. Law Students Civil Rights Research Council v. Wadmond, post, p. 154; Wisconsin v. Constantineau, 400 U. S. 433; Rosado v. Wyman, 397 U. S. 397. These considérations would not, to be sure, support any distinction between civil and criminal proceedings should the ban of 28 U. S. C. § 2283, which makes no such distinction, be held unaffected by 42 U. S. C. § 1983. 56 OCTOBER TERM, 1970 Brennan, J., concurring in resuit 401 U. S. The Court confines itself to deciding the policy considérations that in our fédéral System must prevail when fédéral courts are asked to interfère with pending state prosecutions. Within this area, we hold that a fédéral court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or déclaration in an existing state criminal prosecution.3 Such circumstances exist only when there is a threat of irréparable injury “both great and immédiate.” A threat of this nature might be shown if the state criminal stat-ute in question were patently and flagrantly unconsti-tutional on its face, ante, at 53-54; cf. Evers v. Dwyer, 358 U. S. 202, or if there has been bad faith and harass-ment—official lawlessness—in a statute’s enforcement, ante, at 47-49. In such circumstances the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect fédéral rights. Cf. Georgia v. Racket, 384 U. S. 780. Mr. Justice Brennan, with whom Mr. Justice White and Mr. Justice Marshall join, concurring in the resuit. I agréé that the judgment of the District Court should be reversed. Appellee Harris had been indicted for violations of the California Criminal Syndicalism Act before he sued in fédéral court. He has not alleged that the prosecution was brought in bad faith to harass him. His constitutional contentions may be adequately adjudi- 3 The négative prégnant in this sentence—that a fédéral court may, as a matter of policy, intervene when such “exceptional and extremely limited circumstances” are found—is subject to any further limitations that may be placed on such intervention by 28 U. S. C. § 2283. YOUNGER v. HARRIS 57 37 Brennan, J., concurring in resuit cated in the state criminal proceeding, and fédéral intervention at his instance was therefore improper.* Appellees Hirsch and Dan hâve alleged that they “feel inhibited” by the statute and the prosecution of Harris from advocating the program of the Progressive Labor Party. Appellee Broslawsky has alleged that he “is un-certain” whether as an instructor in college history he can under the statute give instruction relating to the Communist Manifesto and similar revolutionary works. None of these appellees has stated any ground for a rea-sonable expectation that he will actually be prosecuted under the statute for taking the actions contemplated. The court below expressly declined to rely on any finding “that . . . Dan, Hirsch or Broslawsky stand [s] in any danger of prosecution by the [State], because of the activities that they ascribed to themselves in the com- *The District Court erroneously interpreted Zwickler v. Koota, 389 U. S. 241 (1967), as authorizing fédéral court considération of a constitutional claim at issue in a pending state proceeding, whether or not the fédéral court plaintiff had presented his claim to the state court. It suffices here to note that in Zwickler no state proceeding was pending at the time jurisdiction attached in the fédéral court. The court below also thought it significant that appellee Harris had raised his constitutional claim in the state courts in a motion to dismiss the indictment and in pétitions in the state appellate courts for a writ of prohibition. It was questioned at oral argument whether constitutional issues could properly be raised by the procedures in-voked by Harris, and it was suggested that the déniai of Harris’ motions did not necessarily involve rejection of his constitutional daims. However, even if the California courts had at that inter-locutory stage rejected Harris’ constitutional arguments, that rejection would not hâve provided a justification for intervening by the District Court. Harris could hâve sought direct review of that rejection of his constitutional daims or he could hâve renewed the daims in requests for instructions, and on direct review of any conviction in the state courts and in this Court. These were the proper modes for présentation and these the proper forums for considération of the constitutional issues. 58 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. plaint . . . 281 F. Supp. 507, 516. It is true, as the court below pointed out, that “[w]ell-intentioned prose-cutors and judicial safeguards do not neutralize the vice of a vague law,” Baggett v. Bullitt, 377 U. S. 360, 373 (1964), but still there must be a live controversy under Art. III. No threats of prosecution of these appellees are alleged. Although Dan and Hirsch hâve alleged that they desire to advocate doctrines of the Progressive Labor Party, they hâve not asserted that their advocacy will be of the same genre as that which brought on the prosecution of Harris. In short, there is no reason to think that California has any ripe controversy with them. See Golden v. Zwickler, 394 U. S. 103 (1969); Perez v. Ledesma, post, p. 93 (Brennan, J., concurring and dissenting). Mr. Justice Douglas, dissenting.* The fact that we are in a period of history when enormous extrajudicial sanctions are imposed on those who assert their First Amendment rights in unpopular causes emphasizes the wisdom of Dombrowski v. Pfister, 380 U. S. 479. There we recognized that in times of repression, when interests with powerful spokesmen gener-ate symbolic pogroms against nonconformists, the fédéral judiciary, charged by Congress with spécial vigilance for protection of civil rights, has spécial responsibilities to prevent an érosion of the individual’s constitutional rights. Dombrowski represents an exception to the general rule that fédéral courts should not interfère with state criminal prosecutions. The exception does not arise merely because prosecutions are threatened to which the First Amendment will be the proffered defense. Dombrowski governs statutes which are a blunderbuss by *[This opinion also applies to No. 4, Boyle, Judge, et al. v. Landry et al., post, p. 77.] YOUNGER v. HARRIS 59 37 Douglas, J., dissenting themselves or when used en masse—those that hâve an “overbroad” sweep. “If the rule were otherwise, the contours of régulation would hâve to be hammered out case by case—and tested only by those hardy enough to risk criminal prosecution to détermine the proper scope of régulation.” Id., at 487. It was in the context of overbroad state statutes that we spoke of the “chilling effect upon the exercise of First Amendment rights” caused by state prosecutions. Ibid. As respects overbroad statutes we said at least as early as 1940 that when dealing with First Amendment rights we would insist on statutes “narrowly drawn to prevent the supposed evil.” Cantwell v. Connecticut, 310 U. S. 296, 307. The spécial circumstances when fédéral intervention in a state criminal proceeding is permissible are not re-stricted to bad faith on the part of state officiais or the threat of multiple prosecutions. They also exist where for any reason the state statute being enforced is uncon-stitutional on its face. As Mr. Justice Butler, writing for the Court, said in Terrace v. Thompson, 263 U. S. 197, 214: “Equity jurisdiction will be exercised to enjoin the threatened enforcement of a state law which contravenes the Fédéral Constitution wherever it is essential in order effectually to protect property rights and the rights of persons against injuries otherwise irrémédiable; and in such a case a person, who as an officer of the State is clothed with the duty of enforcing its laws and who threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties af-fected, may be enjoined from such action by a fédéral court of equity.” Our Dombrowski decision was only another facet of the same problem. 60 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. In Younger, “criminal syndicalism” is defined so broadly as to jeopardize “teaching” that socialism is préférable to free enterprise. Harris’ “crime” was distributing leaflets advocating change in industrial ownership through political action. The statute under which he was indicted was the one involved in Whitney N. California, 274 U. S. 357, a decision we overruled in Brandenburg v. Ohio, 395 U. S. 444, 449? If the “advocacy” which Harris used was an attempt at persuasion through the use of bullets, bombs, and arson, we would hâve a different case. But Harris is charged only with distributing leaflets advocating political action toward his objective. He tried unsuccess-fully to hâve the state court dismiss the indietment on constitutional grounds. He resorted to the state ap-pellate court for writs of prohibition to prevent the trial, but to no avail. He went to the fédéral court as a matter of last resort in an effort to keep this unconsti-tutional trial from being saddled on him. The “anti-in junction” statute, 28 U. S. C. § 2283,2 is not a bar to a fédéral injunction under these circumstances. That statute was adopted in 1793, § 5, 1 Stat. 335,3 and reflected the early view of the proper rôle of the fédéral courts within American federalism. 1 See Linde, “Clear and Présent Danger” Reexamined : Dissonance in the Brandenburg Concerto, 22 Stan. L. Rev. 1163 (1970). 2 “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to pro-tect or effectuate its judgments.” (Emphasis added.) 3 In its initial form the “anti-injunction” Act provided: “[N]or shall a writ of injunction be granted [by any court of the United States] to stay proceedings in any court of a state.” There were no exceptions. In 1874 it was subsequently modified by an insertion of the YOUNGER v. HARRIS 61 37 Douglas, J., dissenting Whatever the balance of the pressures of localism and nationalism prior to the Civil War, they were funda-mentally altered by the war. The Civil War Amend-ments made civil rights a national concern. Those Amendments, especially § 5 of the Fourteenth Amend-ment, cemented the change in American federalism brought on by the war. Congress immediately com-menced to use its new powers to pass législation. Just as the first Judiciary Act, 1 Stat. 73, and the “anti-injunction” statute represented the early views of American federalism, the Reconstruction statutes, including the enlargement of fédéral jurisdiction,4 represent a later view of American federalism. One of the jurisdiction-enlarging statutes passed dur-ing Reconstruction was the Act of April 20, 1871. 17 Revisers to read: “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Rev. Stat. § 720. In Toucey v. New York Lije Ins. Co., 314 U. S. 118, 133-134, in discussing the statutory exceptions to the “anti-injunction” Act we noted that, while only bankruptcy was the explicit exception, there were others. (1) The “Removal Acts qualify pro tanto the Act of 1793.” (2) The Act of 1851 limiting shipowners’ liability “[b]eing a 'subséquent statute’ to the Act of 1793 . . . opérâtes as an implied legislative amendment to it.” We also added (3) the In-terpleader Act of 1926 and (4) the Frazier-Lemke Act, 47 Stat. 1473. Toucey limited a line of cases dealing with nonstatutory exceptions to the “anti-injunction” Act. Shortly thereafter the current lan-guage of § 2283 was written into the Judicial Code. The Reviser’s Note States: “[T]he revised section restores the basic law as generally understood and interpreted prior to the Toucey decision.” Both 'pre-Touoey and post-Toucey decisions recognize implied legislative exceptions to the “anti-injunction” Act. See Porter v. Dicken, 328 U. S. 252; Leiter Minerais n. United States, 352 U. S. 220. 4 What is now 28 U. S. C. § 1343 (3) was added in 1871, 17 Stat. 13, and the federal-question jurisdiction of 28 U. S. C. § 1331 was added in 1875. 18 Stat. 470. 415-649 0 - 72 - 10 62 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. Stat. 13. Beyond its jurisdictional provision that statute, now codified as 42 U. S. C. § 1983, provides: “Every person who, under color of any statute, ordinance, régulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privilèges, or immunities secured by the Constitution and laws, shall be liable to the party in-jured in an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added.) A state law enforcement officer is someone acting under “color of law” even though he may be misusing his authority. Monroe n. Pape, 365 U. S. 167. And prosecution under a patently unconstitutional statute is a “deprivation of . . . rights, privilèges, or immunities secured by the Constitution.” “Suit[s] in equity” obvi-ously includes injunctions.5 I hold to the view that § 1983 is included in the “ex-pressly authorized” exception to § 2283,6 a point not raised or considered in the much-discussed Douglas n. City of Jeannette, 319 U. S. 157. There is no more good reason for allowing a general statute dealing with fed-eralism passed at the end of the 18th century to control another statute also dealing with federalism, passed almost 80 years later, than to conclude that the early concepts of federalism were not changed by the Civil War. 5 We hâve already held that § 1983 requires no exhaustion of state remedies. McNeese v. Board of Education, 373 IT. S. 668. 6 In accord with the view are Honey v. Goodman, 432 F. 2d 333 (CA6), and Cooper v. Hutchinson, 184 F. 2d 119 (CA3). Opposed are Goss v. Illinois, 312 F. 2d 257 (CA7), and Baines v. City of Danville, 337 F. 2d 579 (CA4). And see Maraist, Fédéral Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 Tex. L. Rev. 535, 591 et seq. (1970). YOUNGER v. HARRIS 63 37 Douglas, J., dissenting That was the view of Judge Will in the Boyle case, Landry N. Daley, 288 F. Supp. 200, 223. In speaking of the Civil War Amendments as “a constitutional révolution in the nature of American federalism” he said: “This révolution, in turn, represents a historical judgment. It emphasizes the overwhelming concern of the Reconstruction Congresses for the protection of the newly won rights of freedmen. By inter-posing the fédéral government between the states and their inhabitants, these Congresses sought to avoid the risk of nullification of these rights by the states. With the subséquent passage of the Act of 1871, Congress sought to implement this plan by expanding the fédéral judicial power. Section 1983 is, therefore, not only an expression of the importance of protecting fédéral rights from infringement by the states but also, where necessary, the desire to place the national government between the state and its citizens.” Ibid. In Boyle the statute makes “intimidation” to “commit any criminal offense” an offense. The three-judge court said: “It . . . makes criminal threats such as the follow-ing: (1) threats by dissentient groups to engage in disorderly conduct, threats by residents of a high-crime neighborhood to carry concealed weapons for their own protection, and threats by mothers to block a dangerous state highway to demonstrate the need for increased safety measures. Indeed, the phrase ‘commit any criminal offense’ is so broad as to include threats to commit misdemeanors punish-able by fine only. These evils are not so substantial that the state’s interest in prohibiting the threat of them outweighs the public interest in giving legiti-mate political discussion a wide berth.” Landry v. Daley, 280 F. Supp. 938, 964. 64 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. Landry and others brought a class action challenging the constitutional validity of five sections of the Illinois statutes. They alleged arrests under ail but two of the challenged sections. Just before trial they abandoned their challenge of two of the five sections. The District Court held one of the remaining sections constitutional and the “mob action” and “intimidation” sections uncon-stitutional. Appellants hâve not appealed the détermination that the “mob action” section of the Illinois statutes is unconstitutional. The Court dismisses this case because there is no showing of irréparable in jury on what it describes as “flimsy allégations.” Post, at 81. The Court states: “There is nothing contained in the allégations of the complaint from which one could infer that any one or more of the citizens who brought this suit is in any jeopardy of suffering irréparable in jury if the State is left free to prosecute under the intimidation statute in the normal manner.” Ibid. Landry and his associâtes, however, allégé that appellants are using the intimidation section along with several other sections to harass them, not to prosecute them in the normal manner. They allégé that appellants are arresting them without warrants or probable cause, and detaining them on excessive bail. They allégé that the arrests are made during peaceful démonstrations and without any expectation of securing valid convictions. In sum, Landry and his group allégé that the “intimidation” section is one of several statutes which appellants are using en masse as part of a plan to harass them and discourage their exercise of their First Amendment rights. There is thus a lively and existing case or controversy concerning First Amendment rights. And I believe that the fédéral court acted in our finest tradition when it issued the stay. YOUNGER v. HARRIS 65 37 Douglas, J., dissenting As the standards of certainty in statutes containing criminal sanctions are higher than those in statutes containing civil sanctions, so are the standards of certainty touching on freedom of expression higher than those in other areas. Winters v. New York, 333 U. S. 507, 515-516. “There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable tests to ascertain guilt.” Where freedom of expression is at stake these require-ments must be more sedulously enforced. In Younger there is a prosecution under an unconsti-tutional statute and relief is denied. In Boyle there is harassment but as yet no prosecution. Allégations of a prosecution or harassment under facially unconstitu-tional statutes should be sufficient for the exercise of fédéral equity powers. Dombrowski and 42 U. S. C. § 1983 indicate why in Boyle fédéral intervention against enforcement of the state laws is appropriate. The case of Younger is even stronger. There the state statute challenged is the prototype of the one we held unconstitutional in Brandenburg N. Ohio, supra. The eternal temptation, of course, has been to arrest the speaker rather than to correct the conditions about which he complains. I see no reason why these ap-pellees should be made to walk the treacherous ground of these statutes. They, like other citizens, need the umbrella of the First Amendment as they study, analyze, discuss, and debate the troubles of these days. When criminal prosecutions can be leveled against them because they express unpopular views, the society of the dialogue is in danger. 66 OCTOBER TERM, 1970 Syllabus 401 U. S. SAMUELS et al. v. MACKELL, DISTRICT ATTORNEY OF QUEENS COUNTY, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK No. 7. Argued April 1, 1969—Reargued April 29 and November 16, 1970—Decided February 23, 1971* Appellants, who had been indicted under New York’s criminal an-archy law, sought declaratory as well as injunctive relief against their prosecutions, on the ground that the law is unconstitutional. A three-judge District Court upheld the law and dismissed the complaints. Held: 1. Since there was no showing that appellants hâve suffered or will suffer great and immédiate irréparable injury by virtue of their being prosecuted in the state courts, where they can make their constitutional contentions, there is no basis for fédéral injunctive relief. Younger v. Harris, ante, p. 37. Pp. 68-69. 2. The same principles that govern the propriety of fédéral in-junctions of state criminal proceedings govern the issuance of fédéral declaratory judgments in connection with such proceedings, and appellants here should hâve been denied declaratory relief without considération of the merits of their constitutional daims. Pp. 69-74. 288 F. Supp. 348, afiirmed. Black, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Douglas, J., filed a concurring opinion, post, p. 74. Stewart, J., filed a concurring opinion, in which Harlan, J., joined, ante, p. 54. Brennan, J., filed an opinion concurring in the resuit, in which White and Marshall, JJ., joined, post, p. 75. Victor Rabinowitz argued the cause for appellants in No. 7 on the original argument and on the rearguments. With him on the briefs were Leonard B. Boudin, Michael Standard, and Dorian Bowman. Eleanor Jackson Piel *Together with No. 9, Fernandez v. Mackell, District Attorney of Queens County, et al., also on appeal from the same court. SAMUELS v. MACKELL 67 66 Opinion of the Court argued the cause and filed briefs for appellant in No. 9 on the original argument and on the rearguments. Frederick J. Ludwig argued the cause for appellee Mackell in both cases on the original argument and on the rearguments. With him on the briefs was Thomas J. Mackell, pro se. Maria L. Marcus, Assistant Attorney-General, argued the cause for appellee Attorney General of New York in both cases on the original argument and on the rearguments. With her on the briefs were Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Hillel Hoffman, Assistant Attorney General. Mr. Justice Black delivered the opinion of the Court. The appellants in these two cases were ail indicted in a New York state court on charges of criminal anarchy, in violation of §§ 160, 161, 163, and 580 (1) of the New York Penal Law.1 They later filed these actions in fédéral district court,2 alleging (1) that the anarchy statute was void for vagueness in violation of due process, and an abridgment of free speech, press, and assembly, in violation of the First and Fourteenth Amendments; (2) that the anarchy statute had been pre-empted by fédéral law; and (3) that the New York laws under which the grand jury had been drawn violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment because they disqualified from jury service any member of the community who did not own real or Personal property of the value of at least $250, and be- 1 These provisions were repealed effective September 1, 1967, and a new criminal anarchy statute, in somewhat different form, took effect on the saine date. 2 The complaint in No. 7 was filed in the Southern District of New York. The complaint in No. 9 was originally filed in the Eastem District, but was later transferred to the Southern District by consent. 68 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. cause the laws furnished no definite standards for deter-mining how jurors were to be selected. Appellants charged that trial of these indictments in state courts would harass them, and cause them to suffer irréparable damages, and they therefore prayed that the state courts should be enjoined from further proceedings. In the alternative, appellants asked the District Court to enter a declaratory judgment to the effect that the challenged state laws were unconstitutional and void on the same grounds. The three-judge court, convened pursuant to 28 U. S. C. § 2284, held that the New York criminal anarchy law was constitutional as it had been construed by the New York courts and held that the complaints should therefore be dismissed. 288 F. Supp. 348 (SDNY 1968).3 In No. 2, Younger n. Harris, ante, p. 37, we today decided on facts very similar to the facts in these cases that a United States District Court could not issue an injunction to stay proceedings pending in a state criminal court at the time the fédéral suit was begun. This was because it did not appear from the record that the plaintiffs would suffer immédiate irréparable injury in accord with the rule set out in Douglas N. City of Jeannette, 319 U. S. 157 (1943), and many other cases. Since in the présent case there is likewise no sufficient show-ing in the record that the plaintiffs hâve suffered or would suffer irréparable in jury, our decision in the Younger case is dispositive of the prayers for injunctions 3 The court also said that even if its view on the merits was wrong, relief should be withheld because the statutes being challenged were no longer in effect. With respect to the plaintiffs’ challenge to the sélection of the grand jury, the District Court held, in reliance on Douglas v. City of Jeannette, 319 U. S. 157 (1943), that this claim could be effectively presented to the New York courts and therefore did not call for fédéral intervention at this stage. SAMUELS v. MACKELL 69 66 Opinion of the Court here. The plaintiffs in the présent cases also included in their complaints an alternative prayer for a declaratory judgment, but for the reasons indicated below, we hold that this alternative prayer does not require a different resuit, and that under the circumstances of these cases, the plaintiffs were not entitled to fédéral relief, declaratory or injunctive. Accordingly we affirm the judgment of the District Court, although not for the reasons given in that court’s opinion. In our opinion in the Younger case, we set out in detail the historical and practical basis for the settled doctrine of equity that a fédéral court should not enjoin a state criminal prosecution begun prior to the institution of the fédéral suit except in very unusual situations, where necessary to prevent immédiate irréparable in jury. The question presented here is whether under ordinary circumstances the same considérations that require the withholding of injunctive relief will make declaratory relief equally inappropriate. The question is not, how-ever, a novel one. It was presented and fully considered by this Court in Great Lakes Co. v. Huffman, 319 U. S. 293 (1943). We find the reasoning of this Court in the Great Lakes case fully persuasive and think that its holding is controlling here. In the Great Lakes case several employers had brought suit against a Louisiana state official, seeking a declaratory judgment that the State’s unemployment compensation law, which required the employers to make contributions to a state compensation fund, was uncon-stitutional. The lower courts had dismissed the com-plaint on the ground that the challenged law was constitutional. This Court affirmed the dismissal, “but solely on the ground that, in the appropriate exercise of the court’s discrétion, relief by way of a declaratory judgment should hâve been denied without considération 70 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. of the merits.” Id., at 301-302. The Court, in a unani-mous opinion written by Mr. Chief Justice Stone, noted first that under long-settled principles of equity, the fédéral courts could not hâve enjoined the Louisiana official from collecting the state tax at issue there unless, as was not true in that case, there was no adéquate remedy available in the courts of the State. This judi-cial doctrine had been approved by Congress in the then-recent Tax Injunction Act of 1937, 50 Stat. 738, now 28 U. S. C. § 1341. Although the declaratory judgment sought by the plaintiffs was a statutory remedy rather than a traditional form of équitable relief, the Court made clear that a suit for declaratory judgment was nevertheless “essentially an équitable cause of action,” and was “analogous to the equity jurisdiction in suits quia timet or for a decree quieting title.” 319 U. S., at 300. In addition, the legislative history of the Fédéral Declaratory Judgment Act of 1934, 48 Stat. 955, as amended, 28 U. S. C. § 2201, showed that Congress had explicitly contemplated that the courts would décidé to grant or withhold declaratory relief on the basis of traditional équitable principles. Accordingly, the Court held that in an action for a declaratory judgment, “the district court was as free as in any other suit in equity to grant or withhold the relief prayed, upon équitable grounds.” 319 U. S., at 300. The Court’s application of these principles to the spécifie problem of declaratory judg-ments relating to the collection of state taxes is worth quoting in full, because it bears so directly on the problem before us in the présent case: “The earlier refusai of fédéral courts of equity to interfère with the collection of state taxes unless the threatened in jury to the taxpayer is one for which the state courts afford no adéquate remedy, and the confirmation of that practice by Congress, SAMUELS v. MACKELL 71 66 Opinion of the Court hâve an important bearing upon the appropriate use of the declaratory judgment procedure by the fédéral courts as a means of adjudicating the validity of state taxes. “It is true that the Act of Congress speaks only of suits ‘to enjoin, suspend, or restrain the assess-ment, levy, or collection of any tax’ imposed by state law, and that the declaratory judgment procedure may be, and in this case was, used only to procure a détermination of the rights of the parties, without an injunction or other coercive relief. It is also true that that procedure may in every practical sense operate to suspend collection of the state taxes until the litigation is ended. But we find it unnecessary to inquire whether the words of the statute may be so construed as to prohibit a déclaration by fédéral courts concerning the invalidity of a state tax. For we are of the opinion that those considérations which hâve led fédéral courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure.” 319 U. S., at 299. The continuing validity of the Court’s holding in the Great Lakes case has been repeatedly recognized and reaffirmed by this Court. See, e. g., Macauley v. Water-man S. S. Corp., 327 U. S. 540, 545 n. 4 (1946); Ott v. Mississippi Barge Line, 336 U. S. 169, 175 (1949); Public Serv. Commun v. Wycofî Co., 344 U. S. 237, 253 (1952) (Douglas, J., dissenting) ; Allegheny County v. Mashuda Co., 360 U. S. 185, 189 (1959); Enochs v. Williams Packing Co., 370 U. S. 1, 8 (1962). Although we hâve found no case in this Court dealing with the application of this doctrine to cases in which the relief sought affects state criminal prosecutions rather than 72 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. state tax collections, we can perceive no relevant différence between the two situations with respect to the limited question whether, in cases where the criminal proceeding was begun prior to the fédéral civil suit, the propriety of declaratory and injunctive relief should be judged by essentially the same standards. In both situations deeply rooted and long-settled principles of equity hâve narrowly restricted the scope for fédéral intervention, and ordinarily a declaratory judgment will resuit in precisely the same interférence with and dis-ruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid. This is true for at least two reasons. In the first place, the Declaratory Judgment Act provides that after a declaratory judgment is issued the district court may enforce it by granting “[f]urther necessary or proper relief,” 28 U. S. C. § 2202, and therefore a declaratory judgment issued while state proceedings are pending might serve as the basis for a subséquent injunction against those proceedings to “protect or effectuate” the declaratory judgment, 28 U. S. C. § 2283, and thus resuit in a clearly improper interférence with the state proceedings. Sec-ondly, even if the declaratory judgment is not used as a basis for actually issuing an injunction, the declaratory relief alone has virtually the same practical impact as a formai injunction would. As we said in the Wycoff case, 344 U. S., at 247: “Is the déclaration contemplated here to be res judicata, so that the [state court] cannot hear évidence and décidé any matter for itself? If so, the fédéral court has virtually lifted the case out of the State [court] before it could be heard. If not, the fédéral judgment serves no useful purpose as a final détermination of rights.” SAMUELS v. MACKELL 73 66 Opinion of the Court See also H. J. Heinz Co. v. Owens, 189 F. 2d 505, 508-509 (CA9 1951). We therefore hold that, in cases where the state criminal prosecution was begun prior to the fédéral suit, the same équitable principles relevant to the pro-priety of an injunction must be taken into considération by fédéral district courts in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well. We do not mean to suggest that a declaratory judgment should never be issued in cases of this type if it has been concluded that injunctive relief would be improper. There may be unusual circumstances in which an injunction might be withheld because, despite a plaintiff’s strong claim for relief under the established standards, the injunctive remedy seemed particularly intrusive or offensive; in such a situation, a declaratory judgment might be appropriate and might not be contrary to the basic équitable doctrines governing the availability of relief. Ordinarily, however, the practical effect of the two forms of relief will be virtually identical, and the basic policy against fédéral interférence with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction. For the reasons we hâve stated, we hold that the court below erred in proceeding to a considération of the merits of the New York criminal anarchy law. Here, as in the Great Lakes case, the judgment dismissing the complaint was based on an adjudication that the statutes challenged here are constitutional and is thus in effect a declaratory judgment. We affirm the judgment dismissing the complaint, but solely on the ground that, in the appropriate exercise of the court’s discrétion, relief by way of declaratory judgment should hâve been denied without considération of the merits. We, of course, ex 74 OCTOBER TERM, 1970 Douglas, J., concurring 401 U. S. press no views on the propriety of declaratory relief when no state proceeding is pending at the time the fédéral suit is begun. Affirmed. [For concurring opinion of Mr. Justice Stewart, see ante, p. 54.] Mr. Justice Douglas, concurring. The same New York statutes on anarchy that were sustained in Gitlow v. New York, 268 U. S. 652, are in-volved in these cases. It was in that case that Mr. Justice Holmes, with whom Mr. Justice Brandeis con-curred, said in dissent: “It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if be-lieved it is acted on unless some other belief out-weighs it or some failure of energy stifles the move-ment at its birth. The only différence between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the resuit. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a présent conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the com-munity, the only meaning of free speech is that they should be given their chance and hâve their way.” In Gitlow the only overt acts were advocacy of overthrow and publication of the writings that contained the advocacy. Id., at 655. Gitlow and its progeny, including Whitney v. California, 274 U. S. 357, went into the discard with our decision in Brandenburg n. Ohio, SAMUELS v. MACKELL 75 66 Brennan, J., concurring in resuit 395 U. S. 444. In that case the indictment charged ad-vocating terrorism “by word of mouth” as a method of political reform and assembly for the purpose of such advocacy. We held that neither advocacy nor assembly in order to advocate political action may be made punishable. Brandenburg, however, is of no help to these appel-lants. For while some of the counts embrace only advocacy or acts which fall within its penumbra, still others are in the field of activities far removed from the protection of the First Amendment. There is a question concerning some of the overt acts—whether, as I asked in my dissent in Epton v. New York, 390 U. S. 29, 30, a constitutionally protected right such as speech or assembly may be used as an overt act in furtherance of a conspiracy. But other overt acts relate to the acquisition of weapons, gunpowder, and the like, and the storing of gasoline to start tires. Persuasion by such means plainly has no First Amendment protection. It therefore cannot be said that the cases against Samuels and Fernandez are palpably unconstitutional. It is for the state courts by sifting out the chaff from the charges through motions to strike, instructions to the jury, and other procédural de vices to preserve such First Amendment rights as may be involved here. Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of “advocacy.” Mr. Justice Brennan, with whom Mr. Justice White and Mr. Justice Marshall join, concurring in the resuit. I agréé that the judgment of the District Court should be affirmed. Ail the appellants had been indicted for violation of the New York Criminal Anarchy Law before 76 OCTOBER TERM, 1970 Brennan, J., concurring in resuit 401 U. S. their suit in fédéral court was filed. They hâve not alleged facts amounting to bad-faith harassment. Therefore, neither a declaratory judgment nor an injunction would be proper. Perez n. Ledesma, post, p. 93 (sep-arate opinion of Brennan, J.). BOYLE v. LANDRY 77 Syllabus BOYLE, JUDGE, et al. v. LANDRY et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS No. 4. Argued March 24, 1969—Reargued April 29 and November 16, 1970—Decided February 23, 1971 Appellees brought this action for injunctive and declaratory relief against enforcement of varions Illinois statutes under some of which certain appellees had been arrested and ail of which they claimed were being used to intimidate them in the exercise of their First Amendment rights. A three-judge District Court declared invalid for overbreadth and enjoined enforcement of a statutory provision (under which no appellee had been arrested or charged) that prohibited intimidating a person by threats to “[c]ommit any criminal offense.” Held: Since no appellee suffered, or was threat-ened with, great and immédiate irréparable injury and the future application of the statute to any appellee was merely spéculative, the District Court was not warranted in interfering with state law enforcement by the issuance of an injunction or declaratory judgment. Younger v. Harris, ante, p. 37; Samuels v. Mackell, ante, p. 66. Pp. 80-81. 280 F. Supp. 938, reversed and remanded. Black, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Brennan, White, and Marshall, JJ., concurred in the resuit. Douglas, J., filed a dissenting opinion, ante, p. 58. Thomas E. Brannigan argued the cause for appellants on the second reargument. Dean H. Bilton argued the cause for appellants on the first reargument. Ronald Butler argued the cause for appellants on the original argument. With Messrs. Butler and Bilton on the brief were Daniel P. Coman and Daniel W. Weil. Ellis E. Reid argued the cause for appellees on the original argument and on the rearguments. With him on the brief were Robert L. Tucker and Stanley A. Bass. 415-649 0 - 72 - 11 78 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Mr. Justice Black delivered the opinion of the Court. This action was brought in fédéral court by seven groups of Negro residents of Chicago, Illinois, seeking a declaratory judgment and an injunction against the enforcement of a number of Illinois statutes and Chicago ordinances on the grounds that they violated various provisions of the Fédéral Constitution. The complaint named as défendants and sought relief against a number of officiais of Cook County and the City of Chicago: the Mayor, the Chief Judge, and two Magistrales of the Circuit Court, the State’s Attorney for the county, the Sherifï, the Superintendent of Police, the city’s Corporation Counsel and his assistant, and three city police officers. Their complaint challenged as invalid the Illinois statutes prohibiting mob action,1 resisting arrest,2 aggra-vated assault,3 aggravated battery,4 and intimidation.5 They alleged that some of the plaintiffs had been ar-rested under some of these statutes and that those prosecutions were currently pending in Illinois state courts, and that Negroes were being intimidated in the exercise of their First Amendment rights (1) through the Wholesale use of ail the statutes alleged to be uncon-stitutional to prosecute members of the Negro com-munity and (2) through the use of arrests without probable cause, coupled with the setting of exorbitant bail. The complaint contended that the défendants had threatened to enforce ail of the named statutes for the sole purpose of harassing and intimidating the plaintiffs. They requested the convening of a three-judge fédéral court under 28 U. S. C. §§ 2281 and 2284, a déclaration that the challenged statutes were unconstitutional, and 1111. Rev. Stat., c. 38, § 25-1 (1967). 2111. Rev. Stat., c. 38, § 31-1. 3111. Rev. Stat., c. 38, § 12-2. 4111. Rev. Stat., c. 38, § 12-4. 6 HL Rev. Stat., c. 38, § 12-6. BOYLE v. LANDRY 79 77 Opinion of the Court temporary and permanent injunctions prohibiting the pending and any possible future prosecutions under the statutes in question. The défendants answered by opposing the convening of a three-judge court and the issuance of a temporary injunction, and moved to dismiss the complaint on the grounds, among others, that (1) as to those plaintiffs against whom prosecutions were then pending, there was an adéquate remedy at law in that they would be able to présent their constitutional challenges to the statutes involved in the pending criminal proceedings, and that as to such plaintiffs the court was barred by 28 U. S. C. § 2283 from issuing an injunction against state court proceedings,6 and that (2) as to those plaintiffs without matters pending in the state courts, there were no facts alleged in the complaint showing that any of those plaintiffs were threatened with prosecution under any of the challenged statutes, or that they would suffer any irréparable injury if they were required to defend any prosecution that might be brought against them in state court. The single Fédéral District Judge denied the défendants’ motion to dismiss and convened the three-judge court.7 The three-judge court upheld ail of the challenged statutes except for one subsection of the mob-action statute which prohibited “[t]he assembly of 2 or 6 28 U. S. C. § 2283 provides that: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 7 The District Judge found that the challenges to various city ordinances were not appropriate for détermination by a three-judge court and these daims were not certified to the three-judge court. In addition, the plaintiffs abandoned their challenge to the constitu-tionality of the Illinois aggravated assault and aggravated battery statutes. 80 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. more persons to do an unlawful act . . . 8 and one sub- section of the intimidation statute which prohibited in-timidating a per son by threats to “[c]ommit any criminal offense. ...” 9 These last two subsections were de-clared invalid on the grounds that they were overly broad and might sweep within their scope conduct that could not constitutionally be made criminal. The court decreed that the défendants—city and county officiais— “be and they are hereby perpetually enjoined and re-strained from the enforcement of or the prosecution under” the two statutory subsections it declared uncon-stitutional. The défendant officiais did not appeal the three-judge court’s déclaration and injunction invalidat-ing the challenged subsection of the mob-action statute and that holding is therefore not before us. We hâve before us only the court’s déclaration of the unconsti-tutionality and injunction against the enforcement of one subsection of the intimidation statute. It is obvious that the allégations of the complaint in this case fall far short of showing any irréparable injury from threats or actual prosecutions under the intimidation statute or from any other conduct by state or city officiais. Not a single one of the citizens who brought this action had ever been prosecuted, charged, or even arrested under the particular intimidation statute which 8111. Rev. Stat., c. 38, § 25-1, provides that: “(a) Mob action consists of any of the following: “(2) The assembly of 2 or more persons to do an unlawful act . . . .” 9111. Rev. Stat., c. 38, § 12-6, provides that: “(a) A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts: “(3) Commit any criminal offense . . . .” BOYLE v. LANDRY 81 77 Opinion of the Court the court below held unconstitutional. Ail the charges of the complaint deal broadly and generally with ail the state statutes and city ordinances that the appellees originally challenged. In fact, the complaint contains no mention of any spécifie threat by any officer or official of Chicago, Cook County, or the State of Illinois to arrest or prosecute any one or more of the plaintiffs under that statute either one time or many times. Rather, it appears from the allégations that those who originally brought this suit made a search of state statutes and city ordinances with a view to picking out certain ones that they thought might possibly be used by the authorities as devices for bad-faith prosecutions against them. There is nothing contained in the allégations of the complaint from which one could infer that any one or more of the citizens who brought this suit is in any jeopardy of suffering irréparable injury if the State is left free to prosecute under the intimidation statute in the normal manner. As our holdings today in Younger v. Harris, ante, p. 37, and Samuels v. Mackell, ante, p. 66, show, the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than spéculation about the future. The policy of a century and a half against interférence by the fédéral courts with state law enforcement is not to be set aside on such flimsy allégations as those relied upon here. For the reasons set out above and for those set out at greater length today in Younger and Samuels, we reverse. Reversed and remanded. Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Marshall concur in the resuit. [For dissenting opinion of Mr. Justice Douglas, see ante, p. 58.] 82 OCTOBER TERM, 1970 Syllabus 401 U. S. FEREZ ET AL. v. LEDESMA et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA No. 60. Argued November 17, 1970—Decided February 23, 1971 Appellees, who had been arrested and charged with violating a Louisi-ana statute and a parish ordinance by displaying for sale allegedly obscene material (which was seized by the arresting officers), brought this suit in the Fédéral District Court for a déclaration that the statute and ordinance were unconstitutional and for an injunction against their enforcement. A three-judge court which was convened upheld the statute and declined to issue an injunction, but, finding that the arrests and seizure were invalid, entered a suppression order prohibiting the use in state criminal proceedings of the illegally seized material and requiring its return to appellees. The three-judge court recognized that it had no jurisdiction to pass on the constitutionality of the ordinance but expressed the view that the ordinance was invalid. The single-judge court then de-clared the ordinance unconstitutional. Appellants appealed di-rectly to this Court from the suppression order and the declaratory judgment invalidating the ordinance. Held: 1. The three-judge court erred in issuing the suppression order and thereby stifling the then-pending good-faith state criminal proceeding during which the defense should first raise its constitutional daims. Younger v. Harris, ante, p. 37. Pp. 84-85. 2. This Court has no jurisdiction to review on direct appeal the validity of the order declaring the ordinance invalid, since it was a decision of a single fédéral judge and as such was appealable only to the Court of Appeals. Pp. 86-88. 304 F. Supp. 662, reversed in part, and vacated and remanded in part. Black, J., delivered the opinion of the Court, in which Burgbr, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Stewart, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 89. Douglas, J., filed an opinion dissenting in part, post, p. 90. Brennan, J., filed an opinion concurring in part and dissenting in part, in which White and Marshall, JJ., joined, post, p. 93. Charles H. Livaudais argued the cause for appellants. With him on the brief was Robert J. Klees. PEREZ v. LEDESMA 83 82 Opinion of the Court Jack Peebles argued the cause for appellees. With him on the brief were Stanley Fleishman and Robert Eugene Smith. Mr. Justice Black delivered the opinion of the Court. Given our decisions today in No. 2, Younger v. Harris, ante, p. 37; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, ante, p. 66; No. 4, Boyle v. Landry, ante, p. 77; No. 83, Byrne v. Karalexis, post, p. 216; and No. 41, Dyson v. Stein, post, p. 200, in which we hâve determined when it is appropriate for a fédéral court to intervene in the administration of a State’s criminal laws, the disposition of this case should not be difficult. I Ledesma and the other appellees operated a newsstand in the Parish of St. Bernard, Louisiana, where they dis-played for sale allegedly obscene magazines, books, and playing cards. As a resuit of this activity, appellees were charged in four informations filed in state court with violations of Louisiana statute, La. Rev. Stat. Ann. § 14:106 (Supp. 1970), and St. Bernard Parish Ordinance 21-60. After the state court proceedings had com-menced by the filing of the informations, appellees insti-tuted the instant suit in the United States District Court for the Eastern District of Louisiana, New Orléans Division. Since the appellees sought a judgment declaring a state statute of statewide application unconstitutional, together with an injunction against pending or future prosecutions under the statute, a three-judge court was convened. That court held the Louisiana statute constitutional on its face, but ruled that the arrests of appellees and the seizure of the allegedly obscene materials were in-valid for lack of a prior adversary hearing on the char-acter of the seized materials. Although the three-judge court declined to issue an injunction against the pending 84 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. or any future prosecutions, it did enter a suppression order and require the return of ail the seized material to the appellees. 304 F. Supp. 662, 667-670 (1969). The local district attorney and other law enforcement officers appealed and we set the case for argument but postponed the question of jurisdiction to the hearing on the merits. 399 U. S. 924 (1970).1 It is difficult to imagine a more disruptive interférence with the operation of the state criminal process short of an injunction against ail state proceedings. Even the three-judge court recognized that its judgment would effectively stifle the then-pending state criminal prosecution. “In view of our holding that the arrests and seiz-ures in these cases are invalid for want of a prior adversary judicial détermination of obscenity, which holding requires suppression and return of the seized materials, the prosecutions should be effectively terminated.” 304 F. Supp., at 670. (Emphasis added.) Moreover, the District Court retained jurisdiction “for the purposes of hereafter entering any orders necessary to enforce” its view of the proper procedures in the then-pending state obscenity prosecution. According to our holding in Younger v. Harris, supra, such fédéral interférence with a state prosecution is improper. The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see Stefanelli v. Minard, 342 1 Under 28 U. S. C. § 1253 an aggrieved party in any civil action required to be heard and determined by a district court of three judges “may appeal to the Suprême Court from an order granting or denying ... an interlocutory or permanent injunction.” The orders directing the suppression of evidence and the return of the seized material were injunctive orders against the appellants. Thus, we hâve jurisdiction to review those orders. PEREZ v. LEDESMA 85 82 Opinion of the Court U. S. 117 (1951), subject, of course, to review by certi-orari or appeal in this Court or, in a proper case, on fédéral habeas corpus. Here Ledesma was free to présent his fédéral constitutional daims concerning arrest and seizure of materials or other matters to the Louisiana courts in the manner permitted in that State. Only in cases of proven harassment or prosecutions un-dertaken by state officiais in bad faith without hope of obtaining a valid conviction and perhaps in other extraor-dinary circumstances where irréparable in jury can be shown is fédéral injunctive relief against pending state prosecutions appropriate. See Younger v. Harris, supra; Ex parte Young, 209 U. S. 123 (1908). There is nothing in the record before us to suggest that Louisiana officiais undertook these prosecutions other than in a good-faith attempt to enforce the State’s criminal laws. We there-fore hold that the three-judge court improperly intruded into the State’s own criminal process and reverse its orders suppressing evidence in the pending state prosecution and directing the return of ail seized materials. II After crippling Louisiana’s ability to enforce its criminal statute against Ledesma, the three-judge court ex-pressed the view that the Parish of St. Bernard Ordinance 21-60 was invalid. Although the court below recognized that “it is not the function of a three-judge fédéral district court to détermine the constitutionality or enjoin the enforcement of a local ordinance,” the court never-theless seized the “opportunity to express its views on the constitutionality of the ordinance.” 304 F. Supp. 662, 670 n. 31 (1969). Judge Boyle, the District Judge who initially referred the action to the three-judge court, adopted that court’s view and declared the parish ordinance invalid. There is considérable question concern- 86 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ing the propriety of issuing a declaratory judgment against a criminal law in the circumstances of this case.2 III We are, however, unable to review the decision con-cerning the local ordinance because this Court has no jurisdiction to review on direct appeal the validity of a declaratory judgment against a local ordinance, such as St. Bernard Parish Ordinance 21-60. Even if an order granting a declaratory judgment against the ordinance had been entered by the three-judge court below (which it had not), that court would hâve been acting in the capacity of a single-judge court. We held in Moody v. Flowers, 387 U. S. 97 (1967), that a three-judge court was not properly convened to consider the constitutional-ity of a statute of only local application, similar to a local ordinance. Under 28 U. S. C. § 1253 we hâve jurisdiction to consider on direct appeal only those civil actions “re-quired . . . to be heard and determined” by a three-judge court. Since the constitutionality of this parish ordinance was not “required . . . to be heard and determined” by a three-judge panel, there is no jurisdiction in this Court to review that question. The fact that a three-judge court was properly convened in this case to consider the injunctive relief re-quested against the enforcement of the state statute, does not give this Court jurisdiction on direct appeal over other controversies where there is no independent juris- 2 At the time the instant fédéral court suit was filed, there was pending in Louisiana state court a criminal prosecution under the parish ordinance. In Samuels v. Mackell, supra, we held that interférence with pending state criminal prosecutions by declaratory judgments is subject to the same restrictions curbing fédéral interférence by injunction. Id., at 73. As indicated above, there are no facts présent in this record to show that appellees would sufïer irréparable injury of the kind necessary to justify fédéral injunctive interférence with the state criminal processes. PEREZ v. LEDESMA 87 82 Opinion of the Court dictional base. Even where a three-judge court is prop-erly convened to consider one controversy between two parties, the parties are not necessarily entitled to a three-judge court and a direct appeal on other controversies that may exist between them.3 See Public Service Comm’n v. Brashear Freight Lines, 306 U. S. 204 (1939). In this case, the order granting the declaratory judg-ment was not issued by a three-judge court, but rather by Judge Boyle, acting as a single district judge. The three-judge court stated: “The view expressed by this court concerning the constitutionality of the ordinance is shared by the initiating fédéral district judge and is adopted by reference in his opinion issued contemporaneously herewith.” 304 F. Supp., at 670 n. 31. (Emphasis added.) The last clause of the quoted sentence indicates what, under Moody v. Flowers, must be the case: The decision granting declaratory relief against the Parish of St. Bernard Ordinance 21-60 was the decision of a single fédéral judge. This fact is confirmed by the orders entered by the two courts. The three-judge court entered the following order at the end of its opinion. “Accordingly, for the reasons assigned, it is ordered that judgment in both cases be entered decreeing: “1. That ail seized materials be returned, instanter, to those from whom they were seized, 3 Aside from the limited local application of the ordinance, which bars a direct appeal under Moody v. Flowers, 387 U. S. 97 (1967), there is a question whether a successful party can properly maintain an appeal. The statute, 28 U. S. C. § 1253, permits a direct appeal only from an order granting or denying an injunction. The State successfully opposed an injunction against the enforcement of the parish ordinance in the court below and now cannot appeal from its victory. See Gunn v. University Committee to End the War in Viet Nam, 399 U. S. 383, 391 (1970) (White, J., concurring). 88 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. “2. That said materials be suppressed as évidence in any pending or future prosecutions of the plaintifïs, “3. That the preliminary and permanent injunc-tions prayed for be denied, and “4. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper.” The order of the single-judge District Court is as follows: “For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing: “1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional. “2. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper.” 304 F. Supp., at 670-671. The fact that the clerk of the District Court merged these orders into one judgment does not confer jurisdiction upon this Court. In the first place, our jurisdiction cannot be made to turn on an inadvertent error of a court clerk. Second, the jurisdictional statute by its own terms grants a direct appeal from “an order granting or deny-ing” an injunction. 28 U. S. C. § 1253. (Emphasis added.) Since the order entered by the three-judge court omits any reference to declaratory relief, the discussion of such relief in the court’s opinion is dictum. The judgment of the court below is reversed insofar as it grants injunctive relief. In ail other respects the judgment is vacated and the case remanded to the United States District Court with instructions to enter a fresh decree from which the parties may take an appeal to the Court of Appeals for the Fifth Circuit if they so desire. It is so ordered. PEREZ v. LEDESMA 89 82 Stewart, J., concurring Mr. Justice Stewart, with whom Mr. Justice Blackmun joins, concurring. In joining the opinion and judgment of the Court, I add these few concurring words. The three-judge District Court’s decree suppressing the use of the seized material as evidence and ordering its return to the appellees was an injunctive order, from which an appeal was properly taken directly to this Court. 28 U. S. C. § 1253. The decree was plainly wrong under Stefanelli v. Minard, 342 U. S. 117, and I agréé that it must be reversed. In Stefanelli we affirmed the refusai of a fédéral district court to suppress the use in a pending state prosecution of evidence that the peti-tioners alleged had been obtained in an unlawful search. Our ruling there is clearly applicable to the facts before us: “We hold that the fédéral courts should refuse to intervene in State criminal proceedings to suppress the use of evidence even when claimed to hâve been secured by unlawful search and seizure.” 342 U. S., at 120. See also Cleary v. Bolger, 371 U. S. 392, 400. I also agréé that the appeal from the declaratory judgment holding the parish ordinance unconstitutional is not properly before us. This Court has no power to consider the merits of that appeal for two quite distinct reasons, each sufficient to defeat our jurisdiction. First, the ordinance is neither a state statute nor of statewide application. The case thus présents a fortiori the situation in which the Court found no jurisdiction in Moody v. Flowers, 387 U. S. 97, 101. Second, the appeal is from the grant of declaratory relief, not from the grant or déniai of an injunction, and jurisdiction under 28 U. S. C. § 1253 is therefore lacking. Gunn v. University Committee to End the War in Viet Nam, 399 U. S. 383; id., at 391 (White, J., concurring). 90 OCTOBER TERM, 1970 Douglas, J., dissenting in part 401 U. S. This is not a case in which the District Court’s action on the prayer for declaratory relief was so bound up with its action on the request for an injunction that this Court might, on direct appeal, consider the propriety of declaratory relief on pendency grounds. Cf. Zwickler v. Koota, 389 U. S. 241 ; Samuels v. Mackell, ante, p. 66. Indeed, the District Court itself recognized that the request for a declaratory judgment regarding the local ordinance was so unrelated to the prayer for injunctive relief against the state statute that the single District Judge entered a separate order declaring the ordinance unconstitutional. Mr. Justice Douglas, dissenting in part. I The three-judge panel was properly convened under 28 U. S. C. § 2281 to consider the validity of a Louisiana statute of general application. That court was also asked, however, to pass on an ordinance of St. Bernard Parish. But I agréé with part III of the opinion of the Court written by Mr. Justice Black that we hâve no jurisdiction over that phase of the litigation. It is by now elementary that a three-judge court may not be convened to consider the validity of a local ordinance or a statute of local application. Moody v. Flowers, 387 U. S. 97, 101. The three-judge court recognized that it had no jurisdiction to pass upon the con-stitutionality of the ordinance; but it expressed “its views ... in the interest of judicial economy [since it was] shared by the initiating fédéral district judge and is adopted by reference in his opinion issued contempo-raneously herewith.” 304 F. Supp. 662, 670 n. 31. It then stated that “[W]e hâve examined the ordinance and find it to be unconstitutional and unenforceable.” Id., at, 670. The single District Judge then ordered that a judgment be entered, holding that the ordinance was uncon- PEREZ v. LEDESMA 91 82 Douglas, J., dissenting in part stitutional. 304 F. Supp., at 671. That order is obvi-ously the judgment which is the basis of an appeal. Later on, the clerk also entered a judgment to that effect for the three-judge court. The judgment entered pursuant to the order of the single District Judge should go to the Court of Appeals for review, not to this Court. Moreover, even if the judgment entered by the clerk was authorized by the three-judge court, it is not properly here. For the order or judgment concerning the ordinance would be here only if the three-judge court had pendent jurisdiction over the claim. Pendent jurisdiction does extend to nonconstitutional grounds for challenging a statute when a constitutional challenge is also raised. Siler v. Louisville & N. R. Co., 213 U. S. 175; Davis v. Wallace, 257 U. S. 478; Sterling v. Constantin, 287 U. S. 378, 393; United States N. Georgia Pub. Serv. Comm’n, 371 U. S. 285; Florida Lime Growers N. Jacobsen, 362 U. S. 73, 75-85; and Flast v. Cohen, 392 U. S. 83, 88-91. State causes of action hâve been ap-pended to fédéral causes of action in a one-judge court where ail causes of action arose out of the same set of facts. United Mine Workers v. Gibbs, 383 U. S. 715. This case, however, does not involve a challenge to one statute or a request for one award of relief on different grounds, but a challenge to two different laws on the same grounds. The only argument for considering both these laws together is that Ledesma was charged under both. This is not sufficient, under any ruling of this Court, to give jurisdiction, on direct appeal, over the ruling. The appellants did not challenge the jurisdiction of the three-judge court or the appellate jurisdiction of this Court over this claim. But subject matter jurisdiction of the fédéral courts may not be bestowed by the parties. United States v. Griffin, 303 U. S. 226, 229. The cases cited by appellants do not support jurisdiction 92 OCTOBER TERM, 1970 Douglas, J., dissenting in part 401 U. S. over this claim. Zemel v. Rusk, 381 U. S. 1, allowed a challenge to an administrative action, as not authorized by statute, to be joined with a constitutional attack on the statutes which purportedly authorized the action. Milky Way Productions v. Leary (together with New York Feed Co. v. Leary}, 305 F. Supp. 288, was a per curiam affirmance, without opinion. 397 U. S. 98. The issues presented to this Court were conceded by ail parties to be constitutional attacks on the obscenity statutes and the arrest warrant statutes of New York. Be-cause the three-judge court had jurisdiction over the attack on the arrest warrant statutes, independent of any other claim, the issue of pendent jurisdiction was not involved and was not raised.* Therefore, that prob-lem was not considered in our per curiam, and our affirmance was not a holding on pendent jurisdiction. We cannot décidé Ferez on the basis of Milky Way, but only on the basis of applicable precedent and reason. And no precedent or reason is advanced for any enlarge-ment of pendent jurisdiction. *None of the parties raised any question concerning pendent jurisdiction in this Court. New York Feed complained that the arrest, without prior adver-sary hearing, was unconstitutional. Milky Way attacked the arrest warrant statutes as unconstitutional “as applied in law,” alleging they were overbroad, an illégal prior restraint, and vague. The Attorney General of New York, in both cases, treated the claim as an attack on the constitutionality of the arrest warrant statutes and argued that they were constitutional. The District Attorney argued that petitioners’ attack on the arrest warrant statutes was improper because they did not preclude the adversary hearing. He did not, however, raise any jurisdictional questions as to the power of the three-judge court to pass on the legality of the arrests. The city of New York raised no jurisdictional challenge. In reply, both petitioners argued that the arrest warrant statutes were “unconstitutional as applied in law.” PEREZ v. LEDESMA 93 82 Opinion of Brennan, J. If a rewriting of the law on pendent jurisdiction is to be done, the Congress should do it. The présent judgment should be reviewed in the Court of Appeals, not here. Rorick v. Comm’rs, 307 U. S. 208. II As to the orders of the three-judge court suppressing evidence in the prosecution under the Louisiana statute, which the Court sets aside, I dissent. My views, which are not congenial to the majority, are set forth at some length in Younger v. Harris, ante, p. 58, and Dyson v. Stein, post, p. 204, decided this day. Mr. Justice Brennan, with whom Mr. Justice White and Mr. Justice Marshall join, concurring in part and dissenting in part. This case présents questions regarding fédéral court intervention affecting the administration of state criminal laws that were not presented in No. 2, Younger v. Harris, ante, p. 37; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, ante, p. 66; No. 4, Boyle v. Landry, ante, p. 77; No. 83, Byrne v. Karalexis, post, p. 216; and No. 41, Dyson v. Stein, post, p. 200, ail decided today. Appellees operate a newsstand in the Parish of St. Bernard, Louisiana. On January 27,1969, sheriff’s officers of the parish, without warrants, raided the newsstand, seized allegedly obscene magazines, books, and playing cards from the shelves, and arrested appellee August M. Ledesma, Jr., an owner, for displaying obscene materials for sale. On February 10, 1969, four informations were filed in the state district court, two charging Ledesma with the crime of obscenity in violation of a Louisiana statute, La. Rev. Stat. Ann. § 14:106 (Supp. 1970), and two charging him with obscenity in violation of St. Bernard Parish Ordinance 21-60. The statute and ordinance appear as an Appendix to this opinion. On Febru- 415-649 0 - 72 - 12 94 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. ary 17, 1969, appellees filed the instant action in the United States District Court for the Eastern District of Louisiana, New Orléans Division. Their complaint sought a judgment under the Fédéral Declaratory Judgment Act, 28 U. S. C. § 2201, declaring the state statute and parish ordinance unconstitutional; an injunction against pending and future prosecutions under either enactment; and an injunction directing the return of the seized magazines, books, and playing cards and sup-pressing their use as evidence in any pending or future criminal prosecution against the appellees. A three-judge court was convened. Prior to the fédéral court hearing, the appellant entered a nolle prosequi in the state court on the two informations charging violation of the parish ordinance. The three-judge court filed an opinion holding (a) that the Louisiana statute was constitutional on its face; (b) that the parish ordinance was unconstitutional on its face; and (c) that the arrest of appellee Ledesma and the seizure of the magazines, books, and playing cards were unconstitutional in the absence of a prior judicial adversary hearing determining that the seized materials were obscene. 304 F. Supp. 662 (1969). The court stated that because it was confident the appellants would comply with the court’s views it was “unnecessary to issue any injunctions” against “pending or future prosecutions or future arrests and seizures.” 304 F. Supp., at 670. In pertinent part the judgment entered on August 14, 1969, therefore decreed: “1. That ail seized materials be returned, in-stanter, by the [appellants] to those [appellees] from whom they were seized, “2. That said materials be suppressed as evidence in any pending or future prosecutions of the [appellees], PEREZ v. LEDESMA 95 82 Opinion of Brennan, J. “3. That the preliminary and permanent injunc-tions prayed for be denied, “4. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional.” App. 106-107. We postponed considération of the question of jurisdiction to the hearing on the merits. 399 U. S. 924 (1970). In addition to the questions presented in the jurisdic-tional statement, our order requested the parties to brief and argue the foliowing questions: “(1) Was it an appropriate exercise of discrétion for the three-judge court to grant the relief in para-graphs 1 and 2 of the judgment of August 14, 1969, in view of the pendency of the state prosecution charging violation of Louisiana Revised Statutes § 14:106? “(2) Was it an appropriate exercise of discrétion for the three-judge court in paragraph 4 of said judgment to déclaré the St. Bernard Parish Ordinance No. 21-60 unconstitutional?” I agréé with the Court (1) that this is a proper appeal to this Court, and (2) that it was not an appropriate exercise of discrétion for the three-judge court to grant the relief in paragraphs 1 and 2 of the judgment of August 14, 1969. I dissent, however, from the holding of the Court that the declaratory judgment which is paragraph 4 of the judgment of the three-judge court is not properly before us for review. I think that it is and, on the merits, would hold that it was an appropriate exercise of discrétion for the court in paragraph 4 to déclaré St. Bernard Parish Ordinance No. 21-60 unconstitutional. I would, therefore, reverse and set aside paragraphs 1 and 2 of the judgment of August 14, 1969, but in ail other respects would affirm that judgment. 96 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. I Jurisdiction Appellants’ assertion of a right of direct appeal to this Court relies upon 28 U. S. C. § 1253. That section per-mits an appeal in any civil action required to be heard and determined by a district court of three judges “from an order granting or denying ... an interlocutory or permanent injunction.” 1 Paragraph 3 of the order of August 14, 1969, decrees: “That the preliminary and permanent injunctions [against pending and future prosecutions] prayed for be denied.” But § 1253 does not permit these appellants to appeal this portion of the judgment, since they prevailed to the extent of this déniai of appellees’ prayers for injunctive relief. Gunn N. University Committee to End the War in Viet Nam, 399 U. S. 383, 391 (1970) (White, J., concurring). However, paragraphs 1 and 2 of the judgment are injunctive orders against appellants directing them not to use the seized materials as evidence against appellees in any pending or future prosecutions and directing the return of those materials. These provisions clearly qualified the judgment as an order “granting . . . an . . . injunction,” from which appellants could appeal directly to this Court. II The Injunctions The companion cases decided today hold that a fédéral court should not interfère by injunction with an existing 1 The full text of 28 U. S. C. § 1253 is as follows: “Except as otherwise provided by law, any party may appeal to the Suprême 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.” PEREZ v. LEDESMA 97 82 Opinion of Brennan, J. state criminal prosecution pending against the fédéral court plaintiff at the time the fédéral action is brought, except upon a showing that great, immédiate, and irréparable in jury is threatened. Such a showing may be, for example, in the form of bad-faith harassment of the fédéral court plaintiff by state law enforcement officiais. These decisions adhéré to the policy established by this Court that, in the absence of such showing, “[i]t is generally to be assumed that state courts and prosecu-tors will observe [in the pending prosecution] constitutional limitations as expounded by this Court.” Dom-browski n. Poster, 380 U. S. 479, 484 (1965). While the three-judge court sustained the constitutionality of the state statute on its face (a holding not before us on this appeal), the court interfered with the pending state prosecution under the statute to the extent of ordering the return of the seized materials and suppressing their use as evidence in the prosecution, thus leaving the State free to proceed with the prosecution on the basis of other evidence. This interférence was improper on this record. There is an utter absence of any evidence that the seizures and the arrest of appellee Ledesma, and the filing of the informations accusing Ledesma of violation of the state statute, were undertaken in bad faith to harass appellees, or for any purpose except the good-faith enforcement of the State’s criminal laws. I hâve no occasion to consider, and intimate no view upon, the holding of the Fédéral District Court that, as to the seizures and the arrest of appellee Ledesma, “the conclusion is irrésistible in logic and in law that none of these may be constitutionally undertaken prior to an adversary judicial détermination of obscenity.” 304 F. Supp., at 667.2 That appeal to fédéral constitutional pro 2 For a contrary view to that of this three-judge court as to the necessity of a hearing prior to an arrest for obscenity, see Milky Way Productions v. Leary, 305 F. Supp. 288, 295-297 (SDNY 1969), aff’d, 397 U. S. 98 (1970). 98 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. tections was open to appellee Ledesma in the state prosecution by way of challenge, in any manner permitted by Louisiana criminal procedure, to the validity of the arrest, and objections to admission into evidence of, or motions to suppress use of, the materials. In Dombrow-ski, the Court expressly included controversies over the admissibility of evidence as controversies which, without more, involved “no spécial circumstances to warrant cut-ting short the normal adjudication of constitutional défenses in the course of a [state] criminal prosecution.” 380 U. S., at 485. The Court said : “It is difficult to think of a case in which an accused could properly bring a state prosecution to a hait while a fédéral court décidés his claim that certain evidence is rendered inadmissible by the Fourteenth Amendment.” Id., at 485 n. 3. While there may be circumstances in which a fédéral court could properly adjudicate such a claim, this record discloses none which justified this three-judge court in doing so. I therefore join the Court in concluding that paragraphs 1 and 2 of the judgment should be reversed and set aside. III The Declaratory Judgment as to the Parish Ordinance Threshold questions must be answered before the merits of the declaratory judgment which is paragraph 4 of the judgment of the three-judge court are reached. The first threshold question is whether the declaratory judgment is properly before us for review. Two opinions, both written by Judge Boyle who initiated the three-judge panel, were filed on July 14, 1969, one for the three-judge court and the other a separate opinion of Judge Boyle. Judge Boyle’s opinion for the three judges explained: “Although it is not the function of a three-judge fédéral district court to détermine the constitu-tionality or enjoin the enforcement of a local ordinance, PEREZ v. LEDESMA 99 82 Opinion of Brennan, J. as distinguished from statutes of state-wide application, Moody v. Flowers, 387 U. S. 97 (1967), the court takes this opportunity to express its views on the constitu-tionality of the ordinance in the interest of judicial econ-omy. The view expressed by this court concerning the constitutionality of the ordinance is shared by the initi-ating fédéral district judge and is adopted by reference in his opinion issued contemporaneously herewith.” 304 F. Supp., at 670 n. 31 (emphasis added). Judge Boyle’s separate opinion was a brief statement: “For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing: 1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional. 2. That jurisdiction be retained herein for the issuance of such further orders as may be neces-sary and proper.” 304 F. Supp., at 671. The Court holds that we hâve no jurisdiction to review the declaratory judgment on the premise that the declaratory judgment against the local ordinance was not issued by the three-judge court but rather by Judge Boyle acting as a single judge. With ail respect this is not the case. Both the Court and my Brothers Douglas and Stewart insist that Judge Boyle’s separate statement was in fact a judgment. I would suppose Judge Boyle himself is the best authority as to that and he expressly referred to the statement as “his opinion.” Appeals are, of course, taken from judgments and not from opinions. No judgment was entered by Judge Boyle pursuant to his separate opinion and therefore there existed no judgment pursuant to the order of the single judge to go to the Court of Appeals for review. The only judgment entered in the case was that entered by the three-judge court on August 14, 1969. Since the injunctions in paragraphs 1 and 2 rendered that judgment appealable directly to this Court, paragraph 4 of that judgment, the declaratory judgment, is necessarily before us. 100 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. However, other considérations require that we décidé whether the three-judge court properly rendered the declaratory judgment. Our per curiam affirmance in Milky Way Productions v. Leary, 305 F. Supp. 288 (SDNY 1969), aff’d, 397 U. S. 98 (1970), fully supports the action of the three-judge court in doing so. That case did not présent attacks on a statute and ordinance but rather attacks on two different New York statutes. The first attack was on N. Y. Penal Law § 235.00 (1965), New York’s general obscenity statute. The second attack was on N. Y. Code Crim. Proc. §§ 148-150 (Supp. 1970-1971). The District Court held that a three-judge court was required to deal with the attack on § 235.00 since the claim was that that section was facially uncon-stitutional. However, the attack on §§ 148-150 of the Code of Criminal Procedure was not that those sections were facially unconstitutional but only that those sections were unconstitutionally invoked before there had been an adversary judicial détermination on the obscenity of the publications in question (i. e., as applied). The District Court acknowledged that the attack on the Code provisions was thus probably not for détermination by three judges, but “as a simple claim of official lawlessness, cog-nizable by one judge.” 305 F. Supp., at 295. Neverthe-less, the District Court, invoking the principle that once three-judge court jurisdiction is established on one claim, the court may consider other issues that alone would not hâve called for three judges, held that, since there was three-judge jurisdiction of the claim of the facial uncon-stitutionality of § 235.00, jurisdiction existed also to détermine the merits of the claim that the criminal procedure provisions were unconstitutionally applied. 305 F. Supp., at 295-296. Our affirmance sustained this holding. Plainly that affirmance governs this case and sustains the propriety of the action of the three-judge court in passing on the constitutionality of the ordinance. Ap- PEREZ v. LEDESMA 101 82 Opinion of Brennan, J. pellants concédé that Milky Way forecloses any challenge on their part to the action of the three-judge court. Indeed, they regard the action of the three-judge court as supported by the cases in this Court authorizing three-judge courts to consider attacks on statutes on noncon-stitutional grounds when those courts are properly convened to hear constitutional challenges to the statutes.3 The appellants argue, however, that no controversy requisite to relief under the Fédéral Declaratory Judg-ment Act existed after the nolle prosequi was entered. This argument présents the second threshold question. Appellants rely upon Golden v. Zwickler, 394 U. S. 103 (1969). In that case a New York criminal statute prohibited the distribution of anonymous handbills in élection campaigns. A distributor of anonymous handbills opposing the re-election of a Congressman sought in fédéral court a judgment declaring the statute unconstitutional. The fédéral action was brought after reversai by the New York courts of the appellee’s conviction for distributing handbills during an earlier cam-paign of the Congressman. See Zwickler v. Koota, 389 U. S. 241 (1967). Appellee desired to distribute handbills during a forthcoming campaign of that Congressman, but the Congressman had retired from Congress to be-come a justice of the New York Suprême Court. In those circumstances the Court held that no “controversy” requisite to declaratory relief existed, since Zwickler’s only target was a particular Congressman and “the prospect was neither real nor immédiate of a campaign involving the Congressman.” 394 U. S., at 109. 3 Flast v. Cohen, 392 U. S. 83, 88-91 (1968); Zemel v. Rusk, 381 U. S. 1, 5-7 (1965); United States v. Georgia Pub. Serv. Comm’n, 371 U. S. 285, 287-288 (1963); Florida Lime Growers v. Jacobsen, 362 U. S. 73, 75-85 (1960); Milky Way Productions v. Leary, 305 F. Supp., at 295. 102 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. The situation here is quite different, however. “Basi-cally, the question in each case is whether the facts alleged, under ail the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941). Appellees’ complaint expressly allégés, and there was no evidence or finding to the contrary, that appellees “desire to continue to keep for sale and to sell” the publications and playing cards in question. Thus, unlike the situation in Golden, the question of the con-stitutionality of the ordinance is “presented in the context of a spécifie live grievance.” 394 U. S., at 110. This conclusion is buttressed by the finding of the three-judge court that “[appellees] fear prosecution [under the ordinance] at some future date.” 304 F. Supp., at 670. Indeed, in light of the appellants’ aggressive prosecution of appellees, the inference is permissible that any attempts by appellees to continue to display the ques-tioned publications for sale might well again be met with prosecutions under both the statute and ordinance. There is no question that there is a continuing controversy between the appellants and the State involving the sale of allegedly obscene publications. Appellants did not assert the contrary before the District Court, nor do they assert the contrary here.4 I conclude that 4 Despite the order to return the seized materials, appellants were not without evidence on which to prosecute appellee Ledesma. The evidence obtained on the night of January 27, 1969, was not just the seized materials. The parties stipulated at the hearing before the three-judge court that immediately before a sheriff’s officer arrested Ledesma, the officer purchased two allegedly obscene magazines from Ledesma, and that another officer purchased two other and different publications from him. The District Court expressly ex-cepted these purchased publications from those ordered returned, PEREZ v. LEDESMA 103 82 Opinion of Brennan, J. it cannot be said that the three-judge court erred in finding that there existed the “controversy” requisite under the Fédéral Declaratory Judgment Act. The third threshold question is whether the state prosecution under the ordinance was “pending” so as to make fédéral intervention inappropriate. The fact is, as I hâve already noted, that informations against appellee Ledesma for violation of the ordinance were out-standing when this fédéral suit was filed. However, the nolle prosequi of those informations was entered before the three-judge court convened and heard the case. That court therefore treated the case as one in which no prosecution under the ordinance was pending. This was not error. The availability of declaratory relief was cor-rectly regarded to dépend upon the situation at the time of the hearing and not upon the situation when the fédéral suit was initiated. See Golden v. Zwickler, 394 U. S., at 108. The principles of comity as they apply to fédéral court intervention, treated by the Court today in Nos. 2, 4, 7, 9, 41, and 83, see supra, at 93, présent this issue. The key predicate to answering the question whether a fédéral court should stay its hand, is whether there is a pending state prosecution where the fédéral court plaintiff may hâve his constitutional defenses heard and determined. Ordinarily, that question may be answered merely by examining the dates upon which the fédéral and state actions were filed. If the state prosecution was first filed and if it provides an adéquate forum for the adjudication of constitutional rights, the fédéral court should not ordinarily intervene. When, however, as here, at the time of the fédéral hearing there is no state prosecution to which the fédéral saying, “Of course, [appellants] cannot be ordered to return the purchased materials, as in the instance of those seized, since title thereto has passed.” 304 F. Supp., at 667 n. 22. 104 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. court plaintiff may be relegated for the assertion of his constitutional defenses, the primary reason for refusing intervention is absent. Here, there was no other forum for the adjudication of appellees’ constitutional objections to the ordinance. There is, of course, some intrusion into a state administration of its criminal laws whenever a fédéral court renders a declaratory judgment upon the constitutionality of a state criminal enactment. The Court holds today in Samuels v. Mackell, supra, that considérations of federal-ism ordinarily make the intrusion impermissible if a state prosecution under that enactment is proceeding at the time the fédéral suit is filed. The Court says, “[I]n cases where the state criminal prosecution was begun prior to the fédéral suit, the same équitable principles relevant to the propriety of an injunction must be taken into considération by fédéral district courts in determining whether to issue a declaratory judgment, and . . . where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.” Id., at 73. But considérations of federalism are not controlling when no state prosecution is pending and the only question is whether declaratory relief is appropriate. In such case, the con-gressional scheme that makes the fédéral courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance. The controversy over the power of fédéral courts to déclaré state statutes unconstitutional and to enjoin their enforcement has roots that reach back at least to Chisholm N. Georgia, 2 Dali. 419 (1793), where in a contract action this Court held that a State could be sued by a citizen of another State. “That decision . . . created such a shock of surprise throughout the country that, at the PEREZ v. LEDESMA 105 82 Opinion of Brennan, J. first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously pro-posed, and was in due course adopted by the législatures of the States.” Hans v. Louisiana, 134 U. S. 1, 11 (1890) (Bradley, J.). The amendment was thought to hâve overruled Chisholm. Although the amendment might hâve been construed to give a broad immunity from fédéral suits to States and state officiais acting pursu-ant to state policy, that construction was rejected in Osborn v. Bank of the United States, 9 Wheat. 738, 847-848 (1824). Osborn involved a confiscatory state tax on a fédéral instrumentality. In sustaining a fédéral court injunction against the state tax, Chief Justice Marshall analyzed the controversy over fédéral judicial power as testing the viability of our fédéral System: “The eleventh amendment . . . has exempted a State from the suits of citizens of other States . . . and the very difficult question is to be decided, whether, in such a case, the Court may act upon the agents employed by the State, and on the prop-erty in their hands. “Before we try this question by the constitution, it may not be time misapplied, if we pause for a moment, and reflect on the relative situation of the Union with its members, should the objection prevail. “A déniai of jurisdiction forbids ail inquiry into the nature of the case. It applies to cases per-fectly clear in themselves; to cases where the government is in the exercise of its best established and most essential powers, as well as to those which may be deemed questionable. It asserts, that the agents of a State, alleging the authority of a law void in itself, because répugnant to the constitution, may arrest the execution of any law in the United States.” 9 Wheat., at 847-848. 106 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. Though recognizing the sensitivity of granting injunc-tions in this context, the Court held that neither the Eleventh Amendment nor any principles of federalism prevented the lower fédéral courts from giving such relief where necessary to vindicate paramount fédéral law in a case where a State was not itself a party of record. The broad reach of the reasoning in Osborn has since been qualified, see generally L. Jaffe, Judicial Control of Administrative Action 213-222 (1965), but the basic principle that in appropriate circumstances fédéral courts will exercise their equity power against state officiais to protect rights secured and activities authorized by paramount fédéral law remains firmly embedded in our jurisprudence. Pennoyer v. McCon-naughy, 140 U. S. 1, 9-18 (1891); Ex parte Young, 209 U. S. 123 (1908); Truac v. Raich, 239 U. S. 33, 37-38 (1915); Terrace v. Thompson, 263 U. S. 197, 214-215 (1923). See also Leiter Minerais N. United States, 352 U. S. 220, 225-226 (1957) (Frankfurter, J.). Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution. During the years between Osborn and Young, and particularly after the Civil War, Congress undertook to make the fédéral courts the primary guardians of constitutional rights. This history was reviewed in Zwickler v. Koota, 389 U. S., at 245-249. The principal foundations of the expanded fédéral jurisdiction in constitutional cases were the Civil Rights Act of 1871, 17 Stat. 13, which in § 1 empowered the fédéral courts to adjudi-cate the constitutionality of actions of any person taken under color of stâte statute, ordinance, régulation, cus-tom, or usage, see 42 U, S. C. § 1983, 28 U. S. C. § 1343 (3), and the Judiciary Act of 1875, 18 Stat. 470, which gave lower fédéral courts general federal-question FEREZ v. LEDESMA 107 82 Opinion of Brennan, J. jurisdiction, see 28 U. S. C. § 1331. These two statutes, together, after 1908, with the decision in Ex parte Young, established the modem framework for fédéral protection of constitutional rights from state interférence. That framework has been strengthened and expanded by subséquent acts of Congress and subséquent decisions of this Court. Ex parte Young involved a state regulatory statute with penal sanctions. At the suit of railroad stock-holders, a fédéral circuit court temporarily enjoined the railroad from complying with the statute, and also temporarily enjoined Young, the state Attorney General, from instituting any proceedings to enforce the statute. Young nevertheless brought an enforcement proceeding in a state court, and was thereupon held in contempt by the circuit court. He brought habeas corpus in this Court, contending that the circuit court lacked jurisdiction to hold him in contempt. This Court held, first, that the original suit was properly within the general federal-question jurisdiction of the circuit court; second, that “individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitu-tional act, violating the Fédéral Constitution, may be enjoined by a Fédéral court of equity from such action,” 209 U. S., at 155-156; and, third, that a fédéral court of equity has power in appropriate circumstances to enjoin a future state criminal prosecution: “When [the state] proceeding is brought to enforce an alleged uncon-stitutional statute, which is the subject matter of inquiry in a suit already pending in a Fédéral court, the latter court having first obtained jurisdiction over the subject matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion 108 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. of ail other courts, until its duty is fully performed.” 209 U. S., at 161-162. The decision in Ex parte Young provoked a reaction not unlike that which greeted Chisholm v. Georgia. Opposition focused principally on the power of lower fédéral courts, and of single judges of such courts, to issue preliminary injunctions, often ex parte, against the en-forcement of state statutes, generally regulatory statutes carrying penalties. See generally Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154 (1963); H. Hart & H. Wechsler, The Fédéral Courts and the Fédéral System 848-849 (1953); Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 803-810 (1934); Currie, The Three-Judge District Court in Constitutional Litiga-tion, 32 U. Chi. L. Rev. 1, 5-7 (1964). The opinion in Ex parte Young anticipated the problem. The Court noted the objection “that the necessary resuit of uphold-ing this suit in the Circuit Court will be to draw to the lower Fédéral courts a great flood of litigation of this character, where one Fédéral judge would hâve it in his power to enjoin proceedings by state officiais to enforce the legislative acts of the State, either by criminal or civil actions.” 209 U. S., at 166. The same year the case was decided Congress considered a measure to disable the lower fédéral courts from enjoining enforcement of state statutes, but the proposai failed to attract sufficient support for passage. See 42 Cong. Rec. 4848-4849 (1908). Two years later, a similar measure passed the House, see 46 Cong. Rec. 313, 316 (1910), but the Senate would not accept it. See F. Frankfurter and J. Landis, The Business of the Suprême Court 143 (1927). However, the same year, Congress did respond to Ex parte Young. It did not attempt to overrule the case by constitutional amendment or by statute; it did not seek to contain it by expanding the statutory bar against fédéral injunctions of state proceedings, 28 U. S. C. § 2283, beyond PEREZ v. LEDESMA 109 82 Opinion of Brennan, J. stays of suits already instituted; it did not follow the precedent of the Eleventh Amendment by excluding a class of litigation from fédéral jurisdiction; nor did it anticipate the technique of the Norris-LaGuardia Act by forbidding the use of the injunction in a defined class of cases, see 47 Stat. 70, 29 U. S. C. §§ 101-115. Rather, Congress ratified the active rôle assigned to the fédéral courts by the post-Civil War législation and accepted the basic holdings of Ex parte Young, but provided that a preliminary injunction against enforcement of a state statute could be issued only by a three-judge district court, see 36 Stat. 557, now 28 U. S. C. § 2281,5 and that the decision of such a court granting or denying an injunction would be directly appealable to this Court. See 28 U. S. C. § 1253. Thus the Three-Judge Court Act confirmed Congress’ acceptance of Ex parte Young and the course of fédéral adjudication of the constitutionality of state statutes which it represented,6 and Congress has never departed from that 5 The Three-Judge Court Act of 1910 originally applied only to interlocutory injonctions against enforcement of state statutes. See § 17, 36 Stat. 557. A 1913 amendment extended the require-ments to interlocutory injunctions against enforcement of state administrative orders. Act of March 4, 1913, c. 160, 37 Stat. 1013. The Judiciary Act of 1925 extended the three-judge requirement to permanent injunctions. 43 Stat. 938. However, in Smith v. Wilson, 273 U. S. 388 (1927), it was held that the three-judge requirement applied only where the application for a permanent injunction was coupled with an application for an interlocutory injunction. The 1948 révision of the statute made the three-judge requirement applicable to requests for either interlocutory or permanent relief, whether or not the other form of relief was sought. Act of June 25, 1948, 62 Stat. 968. 6 In 1913 Congress dealt with another major defect in the fédéral injunction procedure. Injunction suits were commonly instituted in fédéral court shortly after the enactment of complex state regu-latory measures and prior to their construction by the state courts. The resuit was that in one case a fédéral court gave an initial construction to the state statute and then, on the basis of that 415-649 0 - 72 - 13 110 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. acceptance on any of the several occasions when it has amended the Act. As Professor Wright has written, “[T]he doctrine of Ex parte Young seems indispensable to the establishment of constitutional government and the rule of law.” C. Wright, Handbook of the Law of Fédéral Courts 186 (2d ed. 1970).7 construction, adjudicated its constitutionality, thereby excluding the state courts altogether. See generally Lockwood, Maw, & Rosen-berry, The Use of the Fédéral Injunction in Constitutional Litigation, 43 Harv. L. Rev. 426, 428-429 (1930). The remedy provided by Congress, 37 Stat. 1013, is currently codified in 28 U. S. C. § 2284, which provides in pertinent part: “A district court of three judges shall, before final hearing, stay any action pending therein to enjoin, suspend or restrain the en-forcement or execution of a State statute or order thereunder, when-ever it appears that a State court of competent jurisdiction has stayed proceedings under such statute or order pending the détermination in such State court of an action to enforce the same. If the action in the State court is not prosecuted diligently and in good faith, the district court of three judges may vacate its stay after hearing upon ten days notice served upon the attorney general of the State.” The statute has proved largely ineffectual principally because of the stay requirement, which protects the constitutional interests of the fédéral court plaintiffs. See Hart & Wechsler, supra, at 854-855; Hutcheson, supra, at 822-823 ; Lockwood, Maw, & Rosenberry, supra, at 452-453. However, in cases where construction of complex state regulatory law is critical to a constitutional decision, the fédéral courts hâve developed their own techniques for securing state court considération of issues of state law. See, e. g., Prentis v. Atlantic Coast Line Co., 211 U. S. 210 (1908) ; Railroad Comm’n of Texas v. Pullman Co., 312 U. S. 496 (1941). The narrow scope of the doctrine of fédéral abstention was delineated in Zwickler n. Koota, 389 U. S. 241 (1967). See also ALI, Study of the Division of Jurisdiction Between State and Fédéral Courts § 1371, pp. 282-298 (1969); Note, Federal-Question Abstention: Justice Frankfurter’s Doctrine in an Activist Era, 80 Harv. L. Rev. 604 (1967). 7 The American Law Institute, in comments in connection with its proposed codification of the abstention doctrine, observes: “Suits in which it is claimed that state legislative or administrative action is invalid because contrary to controlling fédéral law présent an PEREZ v. LEDESMA 111 82 Opinion of Brennan, J. During the period leading up to and following Ex parte Y oung the fédéral injunction suit became the clas-sic method for testing the constitutionality of state statutes.8 The injunctive remedy was strong medicine, and the Three-Judge Court Act did not eliminate the defects in and the widespread hostility to the injunction procedure. The procedure was unsatisfactory for both private plaintiffs and state défendants: a plaintiff had the burden of proving the traditional equity require-ments for an injunction; and if the plaintiff prevailed in court, an injunction issued against the défendant state official, paralyzing enforcement of the state statute pending further review. Consequently, in 1934, without ex-panding or reducing the subject matter jurisdiction of the fédéral courts, or in any way diminishing the continuing vitality of Ex parte Young with respect to fédéral injunctions, Congress empowered the fédéral courts to grant a new remedy, the declaratory judgment. See Act of June 14, 1934, c. 512, 48 Stat. 955, now 28 U. S. C. § 2201. The express purpose of the Fédéral Declaratory Judgment Act was to provide a milder alternative to the injunction remedy. The House Committee Report stated, “The principle involved in this form of procedure is to confer upon the courts the power to exercise in some in-especially appealing case for original fédéral jurisdiction. The danger of state court hostility to the fédéral claim is greatest in such suits. Jurisdiction of the fédéral courts to hear such cases has been established at least since Ex parte Young, and it has been rightly observed by a distinguished judge that ‘the authority and finality of Ex parte Young can hardly be overestimated.’ Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 799 n. 9 (1934).” (Citation omitted.) ALI, Study of the Division of Jurisdiction Be-tween State and Fédéral Courts 282 (1969). 8 After Congress accepted the basic principles of Ex parte Young, this Court promulgated new Rules of Practice for fédéral equity, which removed many of the objections to equity procedure. See 226 U. S. 627 (1912), and in particular Rule 73, 226 U. S., at 670. 112 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. stances préventive relief; a function now performed rather clumsily by our équitable proceedings and inadequately by the law courts.” H. R. Rep. No. 1264, 73d Cong., 2d Sess., 2 (1934). Of particular significance on the question before us, the Senate report makes it even clearer that the declaratory judgment was designed to be avail-able to test state criminal statutes in circumstances where an injunction would not be appropriate: “The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, spécifie performance, or other immediately coercive decree. It déclarés conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice. ... It has been employed in State courts ... for the déclaration of rights contested under a statute or municipal ordinance, where it was not possible or necessary to obtain an injunction. “The procedure has been especially useful in avoiding the necessity, now so often présent, of having to act at one’s péril or to act on one’s own interprétation of his rights, or abandon one’s rights because of a fear of incurring damages. So now it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial détermination of its meaning or validity. Compare Shredded Wheat Co. v. City of El gin (284 111. 389, 120 N. E. 248, 1918), where the parties were denied an injunction against the enforcement of a municipal ordinance carrying a penalty, and were advised to purport to violate the statute and then their rights could be determined, with Erwin Billiard Parlor v. PEREZ v. LEDESMA 113 82 Opinion of Brennan, J. Buckner (156 Tenn. 278, 300 S. W. 565, 1927), where a declaratory judgment under such circumstances was issued and settled the controversy. . . . “The fact is that the declaratory judgment has often proved so necessary that it has been employed under other names for years, and that in many cases the injunction procedure is abused in order to render what is in effect a declaratory judgment. For example, in the case of Pierce v. Society of Sisters (268 U. S. 510, 525 .. . 1925), the court issued an injunction against the enforcement of an Oregon statute which was not to corne into force until 2 years later; in rendering a judgment declar-ing the statute void, the court in effect issued a declaratory judgment by what was, in effect, appar-ently, an abuse of the injunction. See also Village of Euclid v. Ambler Realty Co. (272 U. S. 365 . . . 1926). Much of the hostility to the extensive use of the injunction power by the Fédéral courts will be obviated by enabling the courts to render declaratory judgments. “Finally, it may be said that the declaratory-judgment procedure has been molded and settled by thousands of precedents, so that the administration of the law has been definitely clarified. The Suprême Court mentioned one of its principal purposes in Terrace v. Thompson (263 U. S. 197, 216 . . . 1923), by Butler, J., when it said: 11 ‘They are not obliged to take the risk of prosecutions, fines, and imprisonment and loss of property in order to secure an adjudication of their rights.’ ” S. Rep. No. 1005, 73d Cong., 2d Sess., 2-3, 6 (1934). Both before and after the enactment of the Fédéral Declaratory Judgment Act, the practice of those States that provided a declaratory remedy was to make it available 114 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. to test the validity of criminal législation. See E. Bor-chard, Declaratory Judgments 1024 (2d ed. 1941). Pro-fessor Borchard, a leading proponent of the Act, testified : “Most courts are unwilling to grant injunctions ... on the ground that it is a criminal statute, but you can get a declaratory judgment in States that hâve it.” Hear-ings on H. R. 5623 before a Subcommittee of the Senate Committee on the Judiciary, 70th Cong., lst Sess., 19 (1928). He testified further that “when Fédéral courts do get power to render declaratory judgments, instead of rendering an injunction, as is now done, that requires three judges, plaintiff will get a declaratory judgment. You would not be able to get an injunction, in such cases, from one judge, but you could get a declaratory judgment as to your rights.” Id., at 39. Indeed, early in the history of the Act this Court applied it to test the con-stitutionality of a fédéral statute carrying criminal sanctions. See Currin v. Wallace, 306 U. S. 1 (1939). Professer Borchard also introduced a written statement in the hearings, which stated in part: “[T]he declaratory judgment serves another use-ful purpose. It often happens that courts are unwilling to grant injunctions to restrain the enforce-ment of penal statutes or ordinances, and relegate the plaintiff to his option, either to violate the statute and take his chances in testing constitutionality on a criminal prosecution, or else to forego, in the fear of prosecution, the exercise of his claimed rights. Into this dilemma no civilized legal System operating under a constitution should force any person. The court, in effect, by refusing an injunction informs the prospective victim that the only way to détermine whether the suspect is a mushroom or a toad-stool, is to eat it. Assuming that the plaintiff has a vital interest in the enforcement of the challenged statute or ordinance, there is no reason why a declaratory judgment should not be issued, instead of FEREZ v. LEDESMA 115 82 Opinion of Brennan, J. compelling a violation of the statute as a condition precedent to challenging its constitutionality.” Hearings on H. R. 5623, supra, at 75-76. The legislative history of the Fédéral Declaratory Judgment Act is overwhelming that declaratory judgments were to be fully available to test the constitutionality of state and fédéral criminal statutes. Much of the hostil-ity to fédéral injunctions referred to in the Senate report was hostility to their use against state officiais seeking to enforce state regulatory statutes carrying criminal sanctions; this was the strong feeling that produced the Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U. S. C. § 1342, and the Tax Injunction Act of 1937, 28 U. S. C. § 1341. The Fédéral Declaratory Judgment Act was intended to provide an alternative to injunctions against state officiais, except where there was a fédéral policy against fédéral adjudication of the class of litiga-tion altogether. See discussion, infra, at 126-128, of Great Lakes Co. n. Huffman, 319 U. S. 293 (1943). More-over, the Senate report’s clear implication that declaratory relief would hâve been appropriate in Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), both cases involving fédéral adjudication of the constitutionality of a state statute carrying criminal pen-alties, and the report’s quotation from Terrace v. Thompson, which also involved anticipatory fédéral adjudication of the constitutionality of a state criminal statute, make it plain that Congress anticipated that the declara-ory judgment procedure would be used by the fédéral courts to test the constitutionality of state criminal statutes. This history compels rejection of the Court’s suggestion, ante, at 86 n. 2, that although no informations were pending at the time of the hearing, declaratory relief was inappropriate in the absence of a showing “that appellees would sufïer irréparable injury of the kind necessary to 116 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. justify fédéral injunctive interférence with the state criminal processes.” Congress expressly rejected that limitation and to engraft it upon the availability of the congres-sionally provided declaratory remedy is simply judicial défiance of the congressional mandate. It is nothing short of judicial repeal of the statute. If the statute is to be repealed or rewritten, it must be done by Congress, not this Court. Ex parte Young makes clear that the most significant factor determining the propriety of fédéral intervention is whether a state proceeding exists that was initiated before the fédéral suit was filed. The Court there upheld a fédéral court’s injunction against future state proceedings where the injunction was in aid of the fédéral court’s jurisdiction, but the Court expressly ex-cepted from its holding the case where a state proceeding exists which was pending at the time fédéral jurisdiction attached. Specifically, the Court stated, “But the Fédéral court cannot, of course, interfère in a case where the proceedings were already pending in a state court.” 209 U. S., at 162. The Court cited Harkrader v. Wadley, 172 U. S. 148 (1898), in support, thus making clear that the ruling was influenced by the statutory provision, first enacted in 1793, prohibiting fédéral injunctions against proceedings pending in any court of a State. The his-tory of that provision, now 28 U. S. C. § 2283, was re-cently traced in Atlantic Coast Line R. Co. v. Brother-hood of Locomotive Engineers, 398 U. S. 281 (1970). However, the statutory bar applies only to prosecutions begun before the fédéral suit is filed and does not preclude injunctions against the institution of future prosecutions. See generally Warren, Fédéral and State Court Interférence, 43 Harv. L. Rev. 345, 366-378 (1930). Thus, the general rules that follow from Ex parte Young are, first, that where there is no pending state proceeding when the fédéral suit is filed, a fédéral court can adjudicate consti- PEREZ v. LEDESMA 117 82 Opinion of Brennan, J. tutional daims against state officiais and issue such orders as are necessary to preserve its jurisdiction; and, second, that where a state proceeding exists that was pending at the time suit was filed in fédéral court the fédéral court should ordinarily décliné to render either declaratory or injunctive relief.9 These rules were developed further in the light of additional considérations in Dombrowski n. Pfister, 380 U. S. 479 (1965). Dombrowski confirmed the well-established principle that constitutional defenses to a state criminal charge must be initially tested in state rather than in fédéral courts. See Douglas v. City of Jeannette, 319 U. S. 157 (1943); Cameron v. Johnson, 390 U. S. 611, 618 (1968) ; compare Stefanelli v. Minard, 342 U. S. 117 (1951), with Rea v. United States, 350 U. S. 214 (1956). However, Dombrowski also recognized that exceptional circumstances may justify fédéral intervention when the opportunity to raise constitutional defenses at the state criminal trial does not assure protection of the constitutional rights at stake. Dombrowski consid-ered two situations in which “exceptional circumstances” can exist. First, if in order to discourage conduct pro-tected by the First Amendment or by some other provision of the Constitution,10 a State brings or threatens to 9I put to one side the question not presented in Ex parte Young, or in this case, whether fédéral court relief would be proper when a state prosecution pending at the time of the fédéral hearing was begun after the fédéral suit was filed. 10 Declaratory relief should be available, whether the conduct in-hibited is expressive or other conduct alleged to be protected by the Constitution. Of course, the spécial sensitivity and importance of First Amendment rights (their sensitivity to “chilling”) is a necessary considération in evaluating the claim of inhibition. The deterrence emanating from the existence of a statute purporting to prohibit constitutionally protected expression is itself plainly incon-sistent with the First Amendment, Zwickler v. Koota, 389 U. S. 241, 118 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. bring a criminal prosecution in bad faith for the purpose of harassment, the bringing of the prosecution or the threat is itself a constitutional deprivation since it sub-jects a person to a burden of criminal defense which he should not hâve to bear, and there then exists a situation “in which defense of the State’s criminal prosecution will not assure adéquate vindication of constitutional rights.”11 Dombrowski v. Pfister, supra, at 485; see Cameron v. Johnson, supra, at 621; cf. Achtenberg n. Mississippi, 393 F. 2d 468, 474-475 (CA5 1968). Ac-cordingly, in this context a civil suit is an appropriate means to eut short the unconstitutional state prosecution. The civil suit for remédiai relief may appropri-ately be brought in fédéral court since the fédéral courts are the primary guardians of constitutional rights. Zwickler v. Koota, supra. Second, where a criminal statute prohibits or seems to prohibit constitutionally pro-tected conduct, and to that extent is unconstitutionally vague or overbroad (a contention not made as to the state statute in this case), the opportunity to raise constitutional defenses at a criminal trial is inadéquate to protect the underlying constitutional rights, since in that 252 (1967); Baggett v. Bullitt, 377 U. S. 360 (1964), which was intended to protect vigorous, robust, and unpopular speech without a threat of punishment under state law. See, e. g., Whitney v. California, 274 U. S. 357, 375-376 (1927) (Brandeis, J., concurring) ; Stromberg v. California, 283 U. S. 359, 369 (1931); Roth v. United States, 354 U. S. 476, 484 (1957); NAACP v. Button, 371 U. S. 415, 429 (1963); New York Times Co. v. Sullivan, 376 U. S. 254 (1964). 11 Bad-faith harassment can, of course, take many forms, including arrests and prosecutions under valid statutes where there is no reasonable hope of obtaining a conviction, see, e. g., Cameron v. Johnson, supra, at 621, and a pattern of discriminatory enforcement designed to inhibit the exercise of fédéral rights, see, e. g., Bailey v. Patterson, 323 F. 2d 201 (CA5 1963). Cf. ALI, Study of the Division of Jurisdiction Between State and Fédéral Courts § 1372 (7), pp. 308-310 (1969). PEREZ v. LEDESMA 119 82 Opinion of Brennan, J. situation a substantial number of people may well avoid the risk of criminal prosecution by abstaining from conduct thought to be proscribed by the statute. Even per-sons confident that their contemplated conduct would be held to be constitutionally protected and that accordingly any state conviction would be overturned may be deterred from engaging in such conduct by the prospect of be-coming enmeshed in protracted criminal litigation, and by the risk that in the end, years later, their confidence will prove to hâve been misplaced and their resources wasted. This deterrence is magnified by the scope that vagueness or overbreadth gives for discriminatory or capricious enforcement. Fédéral anticipatory relief is justified here because it is a principal function of the fédéral courts to vindicate the constitutional rights of ail persons—those who want to obey state laws as well as those prepared to defy them.12 Thus in Dombrowski we held that in cases in these categories fédéral courts may properly intervene in order to assure the full protection of fédéral constitutional rights.13 12 The fédéral declaratory judgment is not a prize to the winner of a race to the courthouses, but rather a déclaration of rights that obviâtes the need to risk a state criminal proceeding or a race to the courthouses. Within the limits of Art. III, see Golden v. Zwickler, 394 U. S. 103 (1969), doctrines of ripeness should be so fashioned as to give adéquate room for this kind of relief. 13 Title 28 U. S. C. § 1343 is an independent basis of fédéral jurisdiction where the plaintiff seeks vindication of constitutional rights; and, where this provision is invoked together with 42 U. S. C. § 1983, exhaustion of state remedies is not required. McNeese v. Board of Education, 373 U. S. 668 (1963). Fédéral court abstention is particularly inappropriate in cases brought under the statutes design ed specifically to authorize fédéral protection of civil rights. As Professor Wechsler has stated, “There Congress has declared the historié judgment that within this precious area . . . there is to be no slightest risk of nullification by state process. The danger is un-happily not past. It would be moving in the wrong direction to reduce the jurisdiction in this field—not because the interest of the 120 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. Taken together, the principles of Ex parte Young and Dombrowski establish that whether a particular case is appropriate for fédéral intervention dépends both on whether a state proceeding is pending and on the ground asserted for intervention. Where the ground is bad-faith harassment, intervention is justified whether or not a state prosecution is pending. Intervention in such cases does not interfère with the normal good-faith en-forcement of state criminal law by constitutional means, and does not necessarily require a decision on the con-stitutionality of a state statute. It simply prevents particular unconstitutional use of the State’s criminal law in bad faith against the fédéral plaintiff. Under Douglas v. City of Jeannette, supra, at 164, a person has no im-munity from a state prosecution “brought lawfully and in good faith,” but he is entitled to fédéral relief from a state prosecution which amounts to bad-faith harassment.14 The situation is different where the plaintiff seeks fédéral intervention on the ground that a state statute is unconstitutional, but does not allégé facts showing bad-faith harassment. In cases of this sort, on whatever provision the claim of unconstitutionality rests, the justification for intervention is that individuals should be able to exercise their constitutional rights without running the risk of becoming lawbreakers. This justification applies with full force where there is a continuing live contro-versy and fédéral intervention is sought when there is no state prosecution in which the statute may be tested. However, where fédéral intervention is sought after a state is smaller in such cases, but because its interest is outweighed by other factors of the highest national concern.” Wechsler, Fédéral Jurisdiction and the Révision of the Judicial Code, 13 Law & Contemp. Prob. 216, 230 (1948). 14 Whether in this context 28 U. S. C. § 2283 bars injunctive relief I need not consider since there is no injunction here. PEREZ v. LEDESMA 121 82 Opinion of Brennan, J. state prosecution has commenced and while it is pending, the interests protected by fédéral intervention must be weighed against the broad countervailing principles of federalism. The pending state proceeding ordinarily provides an existent, concrète opportunity to secure vindica-tion of constitutional daims in the state courts, with ulti-mate review by this Court. In this situation collateral resort to a fédéral court will not speed up the resolution of the controversy since that will not corne to an end in any event until the state litigation is concluded. More-over, fédéral intervention may disrupt the state proceeding through the issuance of necessary stays or the burdensome necessity for the parties to proceed in two courts simultaneously. Fédéral adjudication of the mat-ters at issue in the state proceeding may otherwise be an unwarranted and unseemly duplication of the State’s own adjudicative process. For these reasons, fédéral courts should not ordinarily intervene by way of either declaratory or injunctive relief in cases where a state court prosecution exists that began before the fédéral suit was filed, and the fédéral court plaintiff allégés only that the state statute being applied to him is unconstitutional. Cf. Brillhart v. Excess Ins. Co., 316 U. S. 491, 494-495 (1942); Wright, supra, at 205. The interests served by fédéral intervention in that context are plainly out-weighed by the principles of comity essential to our fédéral System. When no state proceeding is pending and fédéral intervention is therefore appropriate,15 the fédéral court must décidé which of the requested forms of relief should be granted. Ordinarily a declaratory judgment will be appropriate if the case-or-controversy requirements of Article III are met, if the narrow spécial factors war- 151 do not consider here the types of relief available in cases of bad-faith harassment discussed supra, at n. 11. 122 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. ranting fédéral abstention are absent, and if the déclaration will serve a useful purpose in resolving the dispute. See generally Zwickler v. Koota, supra; Golden n. Zwickler, supra. This general rule carries out the un-ambiguous intention of Congress expressed in the Fédéral Declaratory Judgment Act and reflected in the committee reports, supra. The propriety of an injunction should be considered separately and in light of the traditional requirements of equity jurisprudence as applied to the protection of constitutional rights. See, e. g., Douglas N. City of Jeannette, supra; Ex parte Young, supra; Dombrowski v. Pfister, supra; Cameron v. Johnson, supra; Zwickler v. Koota, supra; see also Hart & Wechsler, supra, at 862-864. It follows that the Court’s statement today in Samuels v. Mackell, that in cases where the state criminal prosecu-tion is pending, “the same équitable principles relevant to the propriety of an injunction must be taken into considération ... in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible . . . declaratory relief should ordinarily be denied as well,” is not applicable when determining whether to issue a declaratory judgment in a case where no state criminal prosecution is pending. Its applicability is precluded by the nature of the remedy created by the Fédéral Declaratory Judgment Act, and by our decisions under the Act, culminating in Zwickler n. Koota, supra, which establish that the considérations governing the grant of a declaratory judgment are quite different from those governing the grant of an injunction, even though both forms of relief are discretionary and thus, in the broad sense of the term, “équitable” in nature. The application of the Mackell statement when no criminal prosecution is pending would run counter to our decision this Term in Wisconsin v. C onstantineau, 400 U. S. 433, decided January 19, 1971, where we flatly rejected the PEREZ v. LEDESMA 123 82 Opinion of Brennan, J. proposition that fédéral courts should stay their hand until the state courts hâve been asked to pass on a statute clearly unconstitutional on its face. We there said: “Congress could of course hâve routed ail fédéral constitutional questions through the state court Systems, saving to this Court the final say when it came to review of the state court judgments. But our First Congress [in the first Judiciary Act, 1 Stat. 73] resolved differently and created the fédéral court System and in time granted the fédéral courts various heads of jurisdiction, which today involve most fédéral constitutional rights. . . . . We would negate the history of the enlarge-ment of the jurisdiction of the fédéral district courts, if we held the fédéral court should stay its hand and not décidé the question before the state courts de-cided it.” 400 U. S., at 437-438, 439. Moreover, the prerequisites for injunctive and de-claratory relief are different. The availability of an alternative adéquate legal remedy ordinarily bars an injunction, but does not bar declaratory relief, see Fed. Rule Civ. Proc. 57, unless the alternative remedy was expressly created by statute. See Katzenbach v. McClung, 379 U. S. 294, 295-296 (1964). Similarly, irréparable injury must be shown in a suit for an injunction, but not in an action for declaratory relief. Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937). Of course, neither remedy may be afforded in the absence of a live controversy. United States v. Alaska S. S. Co., 253 U. S. 113 (1920); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941); Zwickler v. Koota, supra, at 244 n. 3. However, the existence of an actual controversy and the adequacy of declaratory relief to résolve it are issues often presenting particular diffi-culty in declaratory judgment actions, and it is to these 124 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. issues that judicial discrétion in such actions is primarily directed. See Public Service Comm’n of Utah v. Wycoff Co„ 344 U. S. 237 (1952). The effects of injunctive and declaratory relief in their impact on the administration of a State’s criminal laws are very different. See generally Kennedy n. Mendoza-Martinez, 372 U. S. 144, 152-155 (1963). An injunction barring enforcement of a criminal statute against par-ticular conduct immunizes that conduct from prosecution under the statute. A broad injunction against ail en-forcement of a statute paralyzes the State’s enforcement machinery: the statute is rendered a nullity. A declaratory judgment, on the other hand, is merely a déclaration of legal status and rights; it neither mandates nor prohibits state action. See Flemming v. Nestor, 363 U. S. 603, 607 (1960); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 15-16 (1964). Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in tôto—that is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroad—that is, incapable of being constitu-tionally applied to the full extent of its purport. In either case, a fédéral déclaration of unconstitution-ality reflects the opinion of the fédéral court that the statute cannot be fully enforced. If a déclaration of total unconstitutionality is affirmed by this Court, it follows that this Court stands ready to reverse any conviction under the statute. If a déclaration of partial unconstitutionality is affirmed by this Court, the implication is that this Court will overturn particular applications of the statute, but that if the statute is narrowly PEREZ v. LEDESMA 125 82 Opinion of Brennan, J. construed by the state courts it will not be incapable of constitutional applications. Accordingly, the déclaration does not necessarily bar prosecutions under the statute, as a broad injunction would. Thus, where the highest court of a State has had an opportunity to give a statute regulating expression a narrowing or clarifying construction but has failed to do so, and later a fédéral court déclarés the statute unconstitutionally vague or overbroad, it may well be open to a state prosecutor, after the fédéral court decision, to bring a prosecution under the statute if he reasonably believes that the de-fendant’s conduct is not constitutionally protected and that the state courts may give the statute a construction so as to yield a constitutionally valid conviction. Even where a déclaration of unconstitutionality is not revie wed by this Court, the déclaration may still be able to eut down the deterrent effect of an unconstitutional state statute. The persuasive force of the court’s opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the législature may repeal the statute and start anew. Finally, the fédéral court judgment may hâve some res judicata effect, though this point is not free from difîiculty and the governing rules remain to be developed with a view to the proper workings of a fédéral System.16 What is clear, however, is that even though a declaratory judgment has “the force and effect of a final judgment,” 28 U. S. C. § 2201, it is a 16 The Senate Report noted that “[t]he declaratory judgment is a final, binding judgment between adversary parties and conclusively détermines their rights.” S. Rep. No. 1005, 73d Cong., 2d Sess., 5 (1934). But in my view the fédéral court’s duty to render a declaratory judgment is not the less whatever may be its res judicata effect as between the parties to the litigation. 415-649 0 - 72 - 14 126 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; non-compliance with it may be inappropriate, but is not contempt. The Court’s opinion in Zwickler v. Koota confirmed that the considérations governing the grant of the two remedies are quite different. Zwickler v. Koota dis-tinguished the prayer for injunction from the prayer for declaratory relief and held squarely that the District Court erred in denying declaratory relief on the ground that there was no “showing . . . of ‘spécial circumstances to justify . . .’ injunctive relief.” 389 U. S., at 253-254. The Court expressly held that “a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a fédéral district court has the duty to décidé the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the pro-priety of the issuance of the injunction.” Id., at 254 (emphasis added). See also Malone v. Emmet, 278 F. Supp. 193 (MD Ala. 1967). Great Lakes Co. v. Huffman, 319 U. S. 293 (1943), is not contrary to my conclusion. That case was an action by employers for a déclaration that a state unemploy-ment compensation scheme which imposed a tax upon them was unconstitutional. Congress has always treated judicial interférence with the enforcement of tax laws as a subject governed by unique considérations, and this Court has consistently enforced the congressional command that “[tjhe district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U. S. C. § 1341. This Court, without relying on the PEREZ v. LEDESMA 127 82 Opinion of Brennan, J. particular terms of the statute, has taken its under-lying policy to require that fédéral courts stay com-pletely out of the field of anticipatory adjudication of tax cases so long as an adéquate remedy is other-wise available. In Great Lakes “we held that declaratory relief that a state tax was unconstitutional should be denied by the fédéral court. The basis of our ruling was that since Congress had prohibited the fédéral courts from enjoining state taxes where an adéquate remedy was available in the state courts, declaratory relief should also be withheld.” Public Service Comm’n of Utah v. Wycoff Co., 344 U. S. 237, 253 (1952) (Douglas, J., dissenting) (citation omitted). Thus Great Lakes adhered to the congressional récognition of the unique considérations presented by anticipatory tax litigation. Ibid. As the statutes barring anticipatory relief in fédéral tax cases, 26 U. S. C. § 7421 (1964 ed., Supp. V) ; 28 U. S. C. § 2201 (express exception for fédéral taxes), make entirely clear, the unique considérations that were the basis of Great Lakes relate not so much to considérations of federalism as to the peculiar needs of tax administration.17 Cf. Agricultural Adjustment Act amendments of 17 “[T]axes are the life-blood of government, and their prompt and certain availability an imper ions need. Time out of mind, therefore, the sovereign has resorted to more drastic means of collection.” Bull v. United States, 295 U. S. 247, 259-260 (1935); see also Bank of Commerce v. Tennessee, 161 U. S. 134, 146 (1896). In Phillips v. Commissioner, 283 U. S. 589, 595-596 (1931), Mr. Justice Brandeis said for the Court, “Where . . . adéquate opportunity is afforded for a later judicial détermination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government hâve been consistently sustained. Property rights must yield provisionally to governmental need. Thus, while protection of life and liberty from administrative action alleged to be illégal, may be obtained promptly by the writ of habeas corpus, the statutory prohibition of any ‘suit for the 128 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. 1935 , § 30, 49 Stat. 770, amending Act of May 12, 1933, 48 Stat. 31 (7 U. S. C. § 623 (a)). In contrast, there is no statutory counterpart of 28 U. S. C. § 1341 applicable to intervention in state criminal prosecutions.18 purpose of restraining the assessment or collection of any tax’ postpones redress for the alleged invasion of property rights . . . (citations omitted). Cf. Matthews v. Rodgers, 284 U. S. 521, 525-526 (1932). The spécial reasons justifying the policy of fédéral non-interference with state tax collection are obvions. The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers’ disputes with tax officiais are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If fédéral declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procédural requirements imposed by state law. During the pendency of the fédéral suit the collection of revenue under the challenged law might be obstructed, with conséquent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, fédéral constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts. See generally S. Rep. No. 1035, 75th Cong., lst Sess. (1937). These considérations make clear that the underlying policy of the anti-tax-injunction statute, 28 U. S. C. § 1341, relied on in Great Lakes, bars ail anticipatory fédéral adjudication in this field, not merely fédéral injunctions. Very different considérations apply in the context of state criminal statutes challenged as unconstitutional. At issue on one side are fundamental personal rights, not property rights. At risk on the other is not the current fmancing of state government, but the future enforcement of a particular criminal statute. 18 Title 28 U. S. C. § 2283 is certainly not analogous to the prohibition of fédéral anticipatory relief in tax cases. That statute applies only where there is a pending state proceeding, Dombrowski v. Pfis-ter, 380 U. S., at 484 n. 2, whereas the présent discussion concerns the propriety of fédéral relief where no state proceeding is pending. Moreover, unlike the tax statutes, § 2283 is not directed to any particular class of litigation, criminal or otherwise, but is designed to protect the process of orderly state court adjudication gen- PEREZ v. LEDESMA 129 82 Opinion of Brennan, J. Of course, the grant or déniai of a declaratory judgment is a matter of Sound judicial discrétion. The standards for the exercise of this discrétion hâve been articulated in Aetna Life Ins. Co. v. Haworth, supra; Public Service Comm’n of Utah v. Wycoff Co., supra, and in Zwickler v. Koota, supra; see supra, at 120-126. Where a fédéral court is asked to déclaré the validity or invalidity of a state statute, this discrétion is to be exercised “in the light of the relations existing, under our System of government, between the judicial tribunals of the Union and of the States, and in récognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to erally. When Congress has wanted to protect particular categories of state business from anticipatory fédéral intervention, it has known how to say so. See 28 U. S. C. §§ 1341,1342. No such statute applies to state criminal law administration. Finally, the Fédéral Declaratory Judgment Act plainly évincés a congressional intent that the statutory term “injunction” in § 2283 not be read to include declaratory judgments. An analogous question was before us recently in Mitchell n. Donovan, 398 U. S. 427 (1970). There we were called on to décidé whether an order of a three-judge court granting or denying a declaratory judgment may be appealed to this Court under 28 U. S. C. § 1253, which provides that with certain exceptions “any party may appeal to the Suprême Court from an order granting or denying . . . an . . . injunction in any civil action . . . required . . . to be . . . determined by a district court of three judges.” (Emphasis added.) The direct-appeal provision of § 1253 obviously reflects the particular sensitivity of granting or denying an injunction in those important cases required to be heard by three-judge courts. See generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1 (1964). The Court clearly had those considérations in mind when it observed, “While there are similarities between injunctions and declaratory judgments, there are also important différences. . . . [T] his Court’s jurisdiction under [§ 1253] is to be literally construed. ... It would hardly be faithful to such a construction to read the statutory term 'injunction’ as meaning 'declaratory judgment.’ ” 398 U. S., at 430-431. 130 OCTOBER TERM, 1970 Opinion of Brennan, J. 401 U. S. guard and protect rights secured by the Constitution.” Ex parte Roy ail, 117 U. S. 241, 251 (1886). However, as the Court said in Zwickler v. Koota: “Congress imposed the duty upon ail levels of the fédéral judiciary to give due respect to a suitor’s choice of a fédéral forum for the hearing and decision of his fédéral constitutional daims. Plainly, escape from that duty is not permissible merely because state courts also hâve the solemn responsibility, equally with the fédéral courts, . to guard, enforce, and protect every right granted or secured by the Constitution of the United States . . . / Robb v. Connolly, 111 U. S. 624, 637. . . . The judge-made doctrine of abstention, first fashioned in 1941 . . . sanctions such escape only in narrowly limited ‘spécial circumstances.’ Propper v. Clark, 337 U. S. 472, 492.” 389 U. S., at 248. Thus, where no criminal prosecution involving the fédéral court parties is pending when fédéral jurisdiction attaches, declaratory relief determining the disputed constitutional issue will ordinarily be appropriate to carry out the purposes of the Fédéral Declaratory Judgment Act and to vindicate the great protections of the Constitution. I conclude that the three-judge court properly exer-cised its discrétion in issuing a declaratory judgment upon the constitutionality of St. Bernard Parish Ordinance No. 21-60. I also agréé with the District Court that the ordinance is unconstitutional on its face because “mortally infected with the vice of vagueness.” 304 F. Supp., at 670. Appellants do not assert the contrary. Paragraphs 1 and 2 of the judgment entered August 14, 1969, should be reversed and the judgment in ail other respects should be affirmed. PEREZ v. LEDESMA 131 82 Appendix to opinion of Brennan, J. APPENDIX TO OPINION OF BRENNAN, J. LOUISIANA REVISED STATUTES ANNOTATED § 14:106. Obscenity A. Obscenity is the intentional: (1) Exposure of one’s person in a public place in such manner that any part of a sex organ may be seen by an-other person, with the intent of arousing sexual desire. (2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indécent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion pic-ture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indécent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory représentations of such sexually indécent character. (3) Possession with the intent to sell, exhibit, give or advertise any of the pornographie material of the character as described in Paragraph (2) above, with the intent to primarily appeal to the prurient interest of the average person. (4) Performance by any person or persons in the presence of another person or persons with the intent of arousing sexual desire, of any lewd, lascivious, sexually indécent dancing, lewd, lascivious or sexually indécent posing, lewd, lascivious or sexually indécent body move-ment. 132 OCTOBER TERM, 1970 Appendix to opinion of Brennan, J. 401 U. S. (5) Solicitation or attempt to entice any unmarried person under the âge of seventeen years to commit any act prohibited by this section. (6) Requirement by a person, as a condition to a sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication to a purchaser or consignée, that such purchaser or consignée receive for resale any other article, book or publication reasonably believed by such purchaser or consignée to contain articles or material of any kind or description which are designed, intended or reasonably calculated to or which do in fact appeal to the prurient interests of the average person in the community, as judged by con-temporary community standards, or the denying or threatening to deny any franchise or to impose any penalty, financial or otherwise, by reason of the failure of any person to accept such articles or things or by reason of the return thereof. (7) Display of nude pictures of a man, woman, boy or girl in any public place, except as works of art ex-hibited in art galleries. B. In prosecutions for obscenity, lack of knowledge of âge or marital status shall not constitute a defense. C. Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not more than six months, or both. When a violation of Paragraphs (1), (2), (3), and (4) of Subsection (A) of this Section is with or in the présence of an unmarried person under the âge of seventeen years, the offender shall be fined not more than one thousand dollars, or imprisoned for not more than five years with or without hard labor, or both. PEREZ v. LEDESMA 133 82 Appendix to opinion of Brennan, J. Amended by Acts 1958, No. 388, § 1 ; Acts 1960, No. 199, § 1 ; Acts 1962, No. 87, § 1 ; Acts 1968, No. 647, § 1, emerg. eff. July 20, 1968, at 1:30 P.M. POLICE JURY ST. BERNARD PARISH ST.BERNARD COURTHOUSE ANNEX CHALMETTE, LOUISIANA EXTRACT OF THE OFFICIAL PROCEEDINGS OF THE POLICE JURY OF THE PARISH OF ST. BERNARD, STATE OF LOUISIANA, TAKEN AT THE REGULAR MEETING HELD IN THE POLICE JURY ROOM OF THE COURTHOUSE ANNEX, AT CHALMETTE, LOUISIANA, ON NOVEMBER 2, 1960, AT ELEVEN O’CLOCK (11:00) A. M. On motion of Celestine Melerine, seconded by Joseph V. Papania and upon recommendation of the District Attorney of the Parish of St. Bernard, the following Ordinance was adopted: ORDINANCE NO. 21-60 An Ordinance known as the Ordinance of St. Bernard Parish, relative to prohibiting and defining the offense of obscenity and indécent literature, adding thereto the offense of “attempt,” and prescribing penalties for the violation thereof. SECTION 1. Offense of obscenity defined and prohibited. SECTION 2. BE IT ORDAINED, by the Police Jury of the Parish of St. Bernard that obscenity is prohibited and is hereby defined as the intentional. 134 OCTOBER TERM, 1970 Appendix to opinion of Brennan, J. 401 U. S. SECTION 3. BE IT FURTHER ORDAINED, that public personal exposure of the female breast or the sexual organs or fundament of any person of either sex. SECTION 4. BE IT FURTHER ORDAINED, that production, sale, exhibition, possession with intent to display, or distribution of any obscene, lewd, lascivious, prurient or sexually indécent print, advertisement, picture, photo-graph, written or printed composition, model, statue, instrument, motion picture, drawing, phonograph record-ing, tape or wire recording, or device or material of any kind. SECTION 5 (a) BE IT FURTHER ORDAINED that the performance of any dance, song, or act in any public place, or in any public manner representing or portraying or rea-sonably calculated to represent or portray any act of sexual intercourse between male and female persons, or any act of perverse sexual intercourse or contact, or unnatural carnal copulation, between persons of any sex, or between persons and animais. SECTION 5 (b) OR FURTHER, the performance in any public place, or any public manner of any obscene, lewd, lustful, lascivious, prurient or sexually indécent dance, or the ren-dition of any obscene, lewd, lustful, lascivious, prurient or sexually indécent song or recitation. SECTION 6. BE IT FURTHER ORDAINED, PRODUCTION, POSSESSION WITH INTENT to display, exhibition, distribution, or sale of any literature as defined herein containing one or more pictures of nude or semi-nude PEREZ v. LEDESMA 135 82 Appendix to opinion of Brennan, J. female persons, wherein the female breast or any sexual organ is shown or exhibited, and where, because of the number or manner of portrayal in which such pictures are displayed in such literature, they are designed to appeal predominantly to the prurient interest. SECTION 7. BE IT FURTHER ORDAINED, that it shall also be unlawful for any person to attempt to commit any of the violations set forth in this section. SECTION 8. BE IT FURTHER ORDAINED, that any person upon conviction of a violation of this section shall be sentenced to serve not more than ninety (90) days, or pay a fine of not more than one hundred dollars (8100.00) or both, in the discrétion of the Court. BE IT FURTHER ORDAINED, that persons con-victed of an attempt to violate this section shall be sentenced to not more than one-half of the maximum penalty prescribed, or pay not more than half of the maximum fine or both, as set forth above. SECTION 9. BE IT FURTHER ORDAINED, that the word literature as used herein means and includes a book, booklet, pamphlet, leaflet, brochure, circular, folder, handbill or magazine. The word picture as used herein means and includes any photograph, lithograph, drawing, sketch, abstract, poster, painting, figure, image, silhouette, représentation or facsimile. SECTION 10. BE IT FURTHER ORDAINED, that this Ordinance shall be published in the Official Journal of the Parish, the St. Bernard Voice. 136 OCTOBER TERM, 1970 Appendix to opinion of Brennan, J. 401 U. S. This Ordinance having been submitted to a vote, the vote thereon was as follows: YEAS: Henry C. Schindler, Jr., Joseph V. Papania, Peter N. Huff, Peter Perniciaro, Louis P. Munster, John W. Booth, Sr., Claude S. Mumphrey, Celestine Melerine, Edward L. Jeanfreau, and Mrs. Blanche Molero. NAYS: None. ABSENT: None. And the Ordinance was declared adopted on this, the 2nd day of November, 1960. /s/ VALENTINE RIESS, (Valentine Riess), President. /s/ JOSEPH E. SORCI, (Joseph E. Sorci), Secretary. CERTIFICATS I CERTIFY THAT the above and foregoing is a true and correct copy of an ordinance adopted by the St. Bernard Parish Police Jury at a Regular meeting held at Chalmette, Louisiana, in the Police Jury Room at the Courthouse Annex on the 2nd day of November, 1960. Witness my hand and the Seal of the St. Bernard Parish Police Jury this llth day of February, 1969. /s/ r. m. McDougall, (R. M. McDougall), Secretary. MAGNESIUM CASTING CO. v. NLRB 137 Syllabus MAGNESIUM CASTING CO. v. NATIONAL LABOR RELATIONS BOARD CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 370. Argued January 18-19, 1971—Decided February 23, 1971 Following a unit détermination hearing, the National Labor Relations Board (NLRB) régional director concluded that three individuals were employées rather than supervisors and thus includible in the proposed bargaining unit at petitioner company’s plant. The NLRB denied petitioner’s request for review. Following an élection, the régional director certified the union as the exclusive bargaining représentative. Subsequently, the NLRB upheld a finding that petitioner’s refusai to bargain constituted an unfair labor practice. Petitioner moved for reconsideration on the ground that the NLRB was required to give plenary review to the régional director’s représentation détermination before issuing an unfair labor practice order based on that détermination. The motion was denied and the Court of Appeals enforced the NLRB’s order. Held: Under § 3 (b) of the National Labor Relations Act the NLRB is permitted to delegate to the régional director its authority to détermine the appropriate bargaining unit, and plenary review by the NLRB of such détermination is not mandatory Pp 141-143. 427 F. 2d 114, affirmed. Douglas, J., delivered the opinion for a unanimous Court. Louis Chandler argued the cause for petitioner. With him on the brief was Jerome H. Somers. Norton J. Corne argued the cause for respondent. With him on the brief were Solicitor General Griswold, Wm. Terry Bray, Arnold Ordman, and Dominick L. Manoli. Briefs of amici curiae urging reversai were filed by Jerry Kronenberg and Alan Raywid for the Terminal Freight Cooperative Association, and by William L. Dennis for Oison Bodies, Inc. 138 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Briefs of amici curiae urging affirmance were filed by Bernard Kleiman, Elliot Bredhofl, Michael H. Gottes-man, and George H. Cohen for the United Steelworkers of America, AFL^CIO, and by Benjamin Rubenstein for International Union, U. A. W. Mr. Justice Douglas delivered the opinion of the Court. Section 3 (b) of the National Labor Relations Act, as amended, 61 Stat. 139, 73 Stat. 542, 29 U. S. C. § 153 (b), authorizes the National Labor Relations Board to dele-gate to its régional directors the power to détermine the unit appropriate for collective bargaining.1 The Board accordingly adopted rules delegating to its régional directors its powers to détermine représentation issues and defining the conditions when the Board will review the détermination of a régional director.2 1Sec. 3 (b) provides in relevant part: “The Board is also authorized to delegate to its régional directors its powers under section 9 to détermine the unit appropriate for the purpose of collective bargaining, to investigate and provide for hearings, and détermine whether a question of représentation exists, and to direct an élection or take a secret ballot under subsection (c) or (e) of section 9 and certify the results thereof, except that upon the filing of a request therefor with the Board by any interested person, the Board may review any action of a régional director delegated to him under this paragraph, but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the régional director. . . 2 The rules are contained in 29 CFR § 102.67. Subsections 102.67 (c), (d), and (f) state in relevant part: “(c) The Board will grant a request for review only where com-pelling reasons exist therefor. Accordingly, a request for review may be granted only upon one or more of the following grounds: “(1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, officially re-ported Board precedent. “(2) That the régional director’s decision on a substantial factual MAGNESIUM CASTING CO. v. NLRB 139 137 Opinion of the Court On filing of a représentation pétition, §9 (c)(l) provides that a hearing shall be held to détermine if a question of représentation exists and, if so, the appro-priate bargaining unit. If an élection is directed and the union prevails, it is certified as the employées’ bargaining représentative. An employer who contests the élection, including the unit détermination, can only ob-tain court review under § 10 after an unfair labor practice charge has been made against him by the Board for refusing to bargain collectively “with the représentatives of his employées” as provided in § 8 (a) (5). In that review, however, the détermination of the bargaining unit by the régional director need not be reviewed by the Board. Whether the Board reviews the initial decision on the merits, see Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 162, or the employer fails to request review of the action of the régional director, or the Board déniés a request for review, the Board has issue is clearly erroneous on the record and such error prejudicially affects the rights of a party. “(3) That the conduct of the hearing or any ruling made in connection with the proceeding has resulted in préjudiciai error. “(4) That there are compelling reasons for reconsideration of an important Board rule or policy. “(d) . . . With respect to paragraph (c)(2) of this section, and other grounds where appropriate, said request must contain a sum-mary of ail evidence or rulings bearing on the issues together with page citations from the transcript and a summary of argument. But such request may not raise any issue or allégé any facts not timely presented to the régional director.” “(f) ■ • • Failure to request review shall preclude such parties from relitigating, in any related subséquent unfair labor practice proceeding, any issue which was, or could hâve been, raised in the représentation proceeding. Déniai of a request for review shall con-stitute an affirmance of the régional director’s action which shall also preclude relitigating any such issues in any related subséquent unfair labor practice proceeding.” 140 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. discrétion to reopen the issue where newly discovered noncumulative evidence is available.3 The United Steelworkers filed a pétition requesting a représentation élection among the production and maintenance employées at petitioner’s Hyde Park, Massachusetts, plant. The régional director provided a hearing and the essential issues tendered concerned four individ-uals classified as “assistant foremen.” The question was whether they were employées and properly within the unit or supervisors as defined in § 2 (11) of the Act and therefore excluded. The régional director found that three were employées and ordered an élection in a unit consisting of ail the employées, including the three. Petitioner filed a request with the Board to review the decision of the régional director that the three men in question were employées, contending that such détermination was clearly erroneous. The Board denied petitioner’s request for review and an élection was held. Thereafter the régional director certified the union as the exclusive bargaining représentative of the employées. When petitioner refused to bargain, the union filed an unfair labor practice charge with the Board. The trial examiner found for the union and the Board affirmed. 175 N. L. R. B. No. 68. Petitioner moved for reconsideration claiming the Board must review the régional director’s représentation détermination before issuing an unfair labor practice order based on it. Petitioner’s reliance was on Pepsi-Cola Co. n. NLRB, 409 F. 2d 676, decided by the Court of Appeals for the Second Circuit. The Board denied that motion, noting its disagreement with the Pepsi-Cola case. The Court of Appeals enforced the Board’s order,4 3 See rules, supra, n. 2. 4 The Tenth Circuit is in accord with the First. See Meyer Dairy, Inc. v. NLRB, 429 F. 2d 697, 699-700. MAGNESIUM CASTING CO. v. NLRB 141 137 Opinion of the Court 427 F. 2d 114, thus creating the conflict among the circuits which led us to grant the pétition for certiorari. 400 U. S. 818. Petitioner argues that plenary review by the Board of the régional director’s unit détermination is necessary at some point. Historically, the représentation issue once fully litigated in the représentation proceeding could not be relitigated in an unfair labor practice proceeding. We so held in Pittsburgh Plate Gloss Co. v. NLRB, supra. That case, of course, was decided when the détermination of the appropriate unit was made by the Board itself. In 1959, § 3 (b) was added. Senator Goldwater, a mem-ber of the Conférence Committee explained its purpose : 5 “[Section 3 (b)] is a new provision, not in either the House or Senate bills, designed to expedite final disposition of cases by the Board, by turning over part of its caseload to its régional directors for final détermination. “Under this provision, the régional directors can exercise no authority in représentation cases which is greater or not the same as the statutory powers of the Board with respect to such cases. In the handling of such cases, the régional directors are required to follow the lawful rules, régulations, procedures, and precedents of the Board and to act in ail respects as the Board itself would act. “This authority to delegate to the régional directors is designed, as indicated, to speed the work of the Board. . . .” We take this statement to reflect the considered judgment of Congress that the régional directors hâve an expertise concerning unit déterminations. Or perhaps 5 105 Cong. Rec. 19770. 415-649 0 - 72 - 15 142 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Congress was primarily motivated by a desire to lighten the Board’s workload and speed up its processes. Its recent report6 shows that in fiscal year 1969, a total of 1,999 formai représentation decisions were issued either directing élections or dismissing élection pétitions; 1,872 of these were rendered by régional directors, and 127 by the Board (100 on direct transfer from the régional directors for initial decision and 27 on grant of a request for review of the régional director’s decision). But for the 1959 amendment the Board would hâve decided ail of those cases. Whatever the reason for the délégation, Congress has made a clear choice; and the fact that the Board has only discretionary review of the détermination of the régional director créâtes no possible infirmity within the range of our imagination. The fact that Congress in 1961 rejected a reorganiza-tion plan which would hâve delegated decisionmaking power in unfair labor practice cases to the hands of trial examiners subject to discretionary Board review7 has no bearing on the présent problem. The choices Congress may make in deciding what délégation of authority is appropriate do not in the présent context raise any sem-blance of a substantial question. For it is unmistakably plain here that by § 3 (b) Congress did allow the Board to make a délégation of its authority over détermination of the appropriate bargaining unit to the régional director. The Board’s rules8 make clear that the régional director is required to follow the same rules as the Board respecting factfinding.9 The régional director’s deter- 6 34th Annual Report, Table 3B, 201 (1970). 7107 Cong. Rec. 10223, 12905-12932. 8 See rules, supra, n. 2. 929 CFR § 102.67 (b). MAGNESIUM CASTING CO. v. NLRB 143 137 Opinion of the Court mination if adopted by the trial examiner in the unfair labor practice proceeding accompanies the case both to the Board10 and to the Court of Appeals.11 In the présent case the Court of Appeals concluded that the Board’s order was supported “by substantial evidence.” 12 Congress has required no greater showing than that. Affirmed. 1029 CFR § 102.45 (a). 1129 CFR § 101.14. 12 There is no different standard of review prescribed by the Administrative Procedure Act. 5 U. S. C. § 706 (1964 ed., Supp. V). See Universal Caméra Corp. v. NLRB, 340 U. S. 474, 487. 144 OCTOBER TERM, 1970 Syllabus 401 U. S. SANKS et al. v. GEORGIA et al. APPEAL FROM THE SUPREME COURT OF GEORGIA No. 28. Argued December 8, 1969—Reargued November 17-18, 1970—Decided February 23, 1971 As a condition precedent to making a defense against a summary éviction proceeding, Georgia law provided that the tenant post a surety bond for double the amount due at the end of the trial, the landlord becoming entitled to such double rent should the tenant lose his case. Following the Georgia Suprême Court’s upholding of that statutory scheme over due process and equal protection challenges by appellants, indigent tenants seeking to contest summary éviction, appellants left the promises their landlords initially sought to recover, and entirely new législation was enacted containing neither the bond-posting nor double-rent requirement. Held: These ensuing developments make it in-appropriate for this Court to résolve the issues originally raised by appellants since it cannot be determined to what extent adjudication of those issues would be material to any further litigation ensuing on remand. Pp. 147-153. 225 Ga. 88, 166 S. E. 2d 19, appeal dismissed and remanded. TTart.an, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Brennan, Stewart, White, Marshall, and Blackmun, JJ., joined. Black, J., filed a statement concurring in the judgment, post, p. 153. Michael D. Padnos reargued the cause for appellants. With him on the brief were Nancy S. Cheves and John William Brent. Alfred L. Evans, Jr., Assistant Attorney General of Georgia, reargued the cause for appellees. With him on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and A. Joseph Nardone, Jr., Assistant Attorney General. Frank B. Zeigler filed a brief for the Legal Aid Office of Savannah, Inc., as amicus curiae urging reversai. SANKS v. GEORGIA 145 144 Opinion of the Court Mr. Justice Harlan delivered the opinion of the Court. We noted probable jurisdiction in this case, 395 U. S. 974 (1969), because the judgment of the Georgia Suprême Court appeared to raise substantial questions under the Fourteenth Amendment that were deserving of our plenary considération, and because whatever conclusion this Court might reach with respect to them would definitively settle this aspect of the litigation. In brief, the Georgia Suprême Court upheld, over due process and equal protection challenges, a state statutory scheme that compelled appellants, both indigent persons who sought to contest landlord pétitions for summary éviction from their homes, to post, as a condition precedent to offering any defense to summary éviction, a surety bond in double the potential arnount of rent due at the end of trial. The statutes, this aspect of which was also upheld by the Georgia Suprême Court, pro-vided further that the landlords would become entitled to such double rent should the tenant-appellants lose their cases. The case was first heard by us at the 1969 Term, and was thereafter set for reargument at the présent Term. 399 U. S. 922 (1970). At reargument it became apparent that events occurring subséquent to our notation of probable jurisdiction had so drastically undermined the promises on which we originally set this case for plenary considération as to lead us to conclude that, with due regard for the proper functioning of this Court, we should not now adjudicate it. I The Georgia statutory scheme under which this case was initiated, Ga. Code Ann. §§ 61-301 to 61-305 (1966), and § 61-306 (Supp. 1969), operated in the following manner. A landlord seeking summary éviction could file an affidavit in a local court, alleging that the tenant, 146 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. for one or more statutorily enumerated reasons, was un-lawfully holding possession of the premises and had refused the landlord’s demand to relinquish possession. (§ 61-301.) When such an affidavit had been filed the local judicial officer was required to issue a “warrant or process” to the sheriff directing him to “deliver to the owner” the premises described in the affidavit. (§ 61-302.) The sheriff was to give the tenant four days’ notice before executing the dispossessory warrant. (§ 61-306 (Supp. 1969).) The tenant could prevent immédiate éviction only by filing a counter-affidavit, alleging one of several speci-fied defenses and accompanied by a surety bond “for the payment of such sum, with costs, as may be recov-ered against him on the trial of the case.” (§ 61-303.) Only if the tenant followed these procedures was he then entitled to a trial on the issues raised by the affidavits. (§ 61-304.) Against this background, § 61-305 provided : “If the issue specified in the preceding section shall be determined against the tenant, judgment shall go against him for double the rent reserved or stipu-lated to be paid, or if he shall be a tenant at will or sufferance, for double what the rent of the premises is shown to be worth . . . In the case before us, appellants Sanks and Momman were served with dispossessory warrants on May 21, 1968, and July 17, 1968, respectively (App. 3, 18), and then applied for (App. 5, 20), and eventually obtained (App. 24-39) from the Civil Court of Fulton County a “rule nisi” permitting appellants to remain in possession of their respective premises pending resolution of the factual issues raised by their applications, so long as they timely paid their rent into court during the pendency of the litigation. Both the bond-posting SANKS v. GEORGIA 147 144 Opinion of the Court requirement (§ 61-303) and the double-rent damages measure (§ 61-305) were declared unconstitutional and, hence, inapplicable to these éviction proceedings. (App. 27-39.) On an interlocutory appeal, the trial court’s constitutional déclarations were set aside by the Suprême Court of Georgia, 225 Ga. 88, 166 S. E. 2d 19 (1969), and the judgment of the lower court was reversed. II Since we noted probable jurisdiction the posture of this case has shifted dramatically. Both Mrs. Momman and Mrs. Sanks hâve removed from the premises originally sought to be recovered by their landlords. In addition, the Georgia General Assembly has repealed virtually the entire statutory scheme that has governed this litigation from its inception and replaced it with a new one, effective July 1, 1970, that contains neither the bond-post-ing nor double-rent requirement. 1 Ga. Laws 1970, pp. 968-972, Ga. Code Ann. §§ 61-302 to 61-305 (Supp. 1970). Under the new law, dispossessory actions will still be commenced by the landlord’s execution of an affidavit. Now, however, this merely compels the local judicial officer to cause the tenant to be summoned to a hearing (§ 61-302), and the tenant can retain possession and force a trial of any defenses he may wish to raise simply by answering the affidavit, orally or in writing, at the hearing. (§61-303.) Expedited trials are encouraged. If the litigation has not been concluded within a month of the execution of the landlord’s affidavit, the tenant may retain possession by paying into court ail rent as it becomes due, in addition to any rent that was due but not paid prior to issuance of the summons. (§§ 61-303, 61-304.) If the landlord ulti-mately prevails, his monetary damages, if any, are to be based on the actual, not double, rent found due. ( § 61-305.) Similarly, the tenant may, in effect, stay execu 148 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. tion of the dispossessory warrant pending appeal of an adverse détermination simply by paying rent, as it accrues, into the court. (§ 61-306.) III The crux of this controversy from its inception has been appellants’ insistence that they, not their alleged landlords, had the right to lawful possession of the premises in dispute and their demands that they be per-mitted to remain in possession pending the outcome of the litigation.1 With appellants’ voluntary removal from the premises this aspect of the case is clearly moot. We hâve been apprised of no basis in the statutes or case law for assuming that were this Court now to hold Mrs. Sanks and Mrs. Momman were constitutionally entitled to proceed in the trial court without first posting a double-rent bond, they could then seek a decree under the statutes here at issue returning them to possession of the premises. The repealed statute spoke only of en-abling a tenant already in possession to contest forcible éviction upon posting a bond. Indeed, neither appellants nor appellees—ail of whom resist the suggestion that the case as a whole is moot—contend that this aspect of it is not moot. There is thus no reason to believe that, on remand, either appellant, if successful in this Court, could litigate, in the context of any proceeding that might conceivably be governed by any of the provisions of these repealed Georgia statutes, a claim to be put in possession of the premises she originally occupied. In support of the continued justiciability of the case, appellants rely upon a subsidiary aspect of this controversy which they claim remains alive. Were this 1 Mrs. Sanks intended to contest the dispossessory warrant on the ground that she is not, in fact, the tenant of the person seeking to evict her. App. 5. SANKS v. GEORGIA 149 144 Opinion of the Court Court to affirm the Georgia Suprême Court on the merits, the case would presumably be remanded to the trial court in accordance with the Georgia Suprême Court’s mandate. There, argue appellants, those who initially procured the dispossessory warrants might then move for entry of a judgment for double damages as provided in former § 61-305. Appellants fear that such a judgment might automatically be entered because their removal from the promises might be construed as effec-tively conceding their lack of substantive defenses or that, even if they are still technically entitled to raise defenses, appellants’ ability to do so will be conditioned on first posting the bond. Such a resuit is possible only if a number of factors coalesce. First, the original mov-ing parties, the alleged lessors, would hâve to décidé to seek such damages from these relatively impecunious appellants. Second, the Georgia courts would hâve to rule that such request for damages should be adjudicated under the repealed statutes. Third, it would also be necessary for the state courts to hold that those statutes contemplated awarding double rent in the circumstances here and (see infra) on a basis that renders material the bond-posting provision. Beyond ail this, the original posture of this case has been further upset by the apparent fact that prior to moving out, and in compliance with the order of the trial court, appellants paid their rent money into the court’s registry as it became due, money that still remains on deposit there. Tr. of Oral Rearg., Nov. 18, 1970, pp. 10-11, 26. With the case in this Court thus so reoriented, it is impossible for us to predict whether and to what extent our adjudication of the issues originally presented would now be material to any further litigation that might ensue on remand. Whether the original initiating parties will seek double damages is a matter wholly beyond 150 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. the control of this, or any other, court. Whether the existence of funds in the registry of the trial court will necessitate an adversary proceeding to redistribute them and, if so, whether that proceeding would be governed by the repealed statutes which, on their face, do not even remotely speak to this problem, are matters of pure conjecture. Because the former statutes provided for double damages only where “the issue . . . [is] deter-mined against the tenant” (former § 61-305) and provided for joinder of issue only where a double-rent bond had first been posted (former §§ 61-303, 61-304), we are quite unable to say whether the Georgia courts would nevertheless hold this language sufficiently elastic to permit a claim for double damages where éviction was arrested by court order rather than a bond, yet insuffi-ciently flexible to permit simultaneous waiver of the bond-posting requirement before adjudication of such a claim. Nor can we predict whether and to what extent repeal of the former statutory scheme would, on remand, be held to alter any of the conclusions respecting it which the Georgia courts might otherwise adopt in this context.2 Ail these issues, so far as it appears, would be matters of first impression for the Georgia judiciary. IV Given this impondérable legal tangle, involving, as it does, purely matters of state law, we perceive no other responsible course for this Court than to décliné, at this stage, to adjudicate the issues originally presented. We 2 Georgia has a statutory policy disapproving the rétroactive application of new statutes. Ga. Code Ann. § 102-104 (1968). However, the statute expressly distinguishes “[l]aws looking only to the remedy or mode of trial.” Conceivably, this case might be held to fall within that exception. Moreover, we cannot foretell whether a subséquent motion for double damages would be treated as, in effect, a new lawsuit filed well after passage of the new Act. SANKS v. GEORGIA 151 144 Opinion of the Court do not rest this conclusion on a détermination that the case is moot. Conceivably, appellants may on remand be subjected to the double-rent or bond-posting require-ments of the former statutes. But it has always been a matter of fundamental principle with this Court, a principle dictated by our very institutional nature and constitutional obligations, that we exercise our powers of judicial review only as a matter of necessity. As said in United States v. Petrillo, 332 U. S. 1, 5 (1947), “We hâve consistently refrained from passing on the constitutionality of a statute until a case involving it has reached a stage where the decision of a précisé constitutional issue is a necessity.” Manifestly, it cannot plau-sibly be maintained that this is such a case. Indeed, the only thing that is now apparent about this lawsuit is that the clear-cut constitutional issues it formerly presented cannot with any certainty be said to be relevant to the issues remaining in it, if, in fact, any issues do remain. Moreover, even were the constitutional issues certain to arise below we cannot foretell the context in which they will appear. Possibly the double-rent provision will be successfully invoked, but not the bond-posting re-quirement. Similarly, if the latter is held applicable, we would at this stage be required to adjudicate, in advance of that fact, its validity as a precondition not to resisting summary éviction, which is its normal and clearly in-tended use, but to contesting a claim for damages only. The operative competing constitutional considérations, particularly the nature and scope of the State’s interest in imposing such a barrier to litigation, may well be sig-nificantly different depending on the principal purposes for which the bond is required. Yet, given the debili-tated state of this lawsuit, we could address only the subsidiary problem—and this in a legal context where we would not know whether that problem will ever arise. The principle of prudent restraint we invoke today is 152 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. nothing new, although, happily, it has not frequently proved necessary to dispose of appeals on this basis. United States v. Fruehauf, 365 U. S. 146 (1961), provides an apt analogy. There the United States had appealed the dismissal of an indictment brought under § 302 (a) of the Taft-Hartley Act, 61 Stat. 157, which made it unlawful “for any employer to pay or deliver, or to agréé to pay or deliver, any money or other thing of value to any représentative of any of his employées,” where the lower court had construed a Government pre-trial mémorandum as a concession that the transaction forming the basis of the indictment was a loan and held that the statute did not penalize management for loaning money to union officiais. This Court noted probable jurisdiction to consider the validity of this construction of the statute, but after oral argument the Solicitor General represented to the Court that he felt the Government was free, on remand, to prove the transaction came within the statute because its particular facts revealed this was not a bona fide loan. This occurrence left the précisé issue to be decided so opaque and the extent to which a decision would résolve the controversy so uncertain that the Court, in effect, was being asked to render an “advance expression of legal judgment upon issues which remain un-focused,” 365 U. S., at 157. Accordingly, the Court remanded the case without further adjudication. In the case now before us subséquent events hâve pro-duced similar conséquences. The focus of this lawsuit has been completely blurred, if not altogether obliterated, and our judgment on the important issues involved is po-tentially immaterial. Indeed, the instant case is obvi-ously more compelling than Fruehauf, since this one présents an issue of constitutional, not statutory, interprétation. SANKS v. GEORGIA 153 144 Opinion of the Court Similarly, in Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549 (1947), the Court declined to adjudicate an appeal presenting important constitutional issues because those issues were, on close inspection, so intertwined with complex problems of construing the Los Angeles Municipal Code that it was not possible to tell with précision at that stage in what context and to what extent the appellants’ freedom was being restrained. So, here, we do not know, assuming the bond-posting or double-damages provisions ultimately are successfully invoked, in what context this will occur, or what the précisé rationale for applying them will be. In short, resolution by this Court at this time, of the issues originally raised by appellants would not be ap-propriate. We leave ourselves completely free, of course, to review these issues should appellants’ fears that they will be adversely affected by the repealed statutes sub-sequently be confirmed by proceedings in the Georgia courts. Accordingly, the appeal will be dismissed and the case remanded to the Suprême Court of Georgia. It is so ordered. Mr. Justice Black concurs in the judgment of the Court dismissing this appeal but does so specifically on the ground that the case is now moot. 154 OCTOBER TERM, 1970 Syllabus 401 U. S. LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL, INC., et al. v. WADMOND et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK No. 49. Argued October 15, 1970—Decided February 23, 1971 Appellants challenge, primarily on First Amendment vagueness and overbreadth grounds, the System for screening applicants for admission to the New York Bar. To carry out the statutory requirement that the Appellate Division of the State Suprême Court “be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law,” Committees on Character and Fitness receive affidavits from two persons (one of whom must be a practicing attorney) acquainted with the applicant, and a questionnaire completed by the applicant. The Committees also conduct personal interviews with each applicant. As the final step before admission to the Bar, the applicant must take an oath that he will support the United States and New York Constitutions. Appellants attack the procedure, not because any applicant has ever been unjustifiably denied permission to practice law in New York, but on the basis that it works a “chilling effect” upon the exercise of free speech and association of law students. The three-judge District Court found certain items on the questionnaire so vague, overbroad, and intrusive on applicants’ privacy as to be of doubtful constitutional validity, but upheld the statute and rules as valid on their face, and with the exceptions noted, sustained the validity of the procedure. Held: 1. The “character and general fitness” requirement for admission to the New York Bar is not violative of the Constitution. Pp. 159-160. (a) The requirement has been construed by appellees to en-compass no more than “dishonorable conduct relevant to the legal profession.” P. 159. (b) The current third-party affidavits, setting forth the nature and extent of affiants’ acquaintance with the applicant, do not infringe upon the applicant’s right to privacy. P. 160. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 155 154 Syllabus 2. New York’s Rule that an applicant furnish proof that he “believes in the form of government of the United States and is loyal to such government,” is not constitutionally invalid in light of appellees’ construction that the Rule places no burden of proof on the applicant, that the “form of government” and the “government” refer solely to the Constitution, and that “belief” and “loyalty” mean no more than willingness to take the constitutional oath and ability to do so in good faith. Pp. 161-164. 3. The challenged items on the modified questionnaire are not constitutionally invalid, as one is precisely tailored to conform to this Court’s decisions on organizational membership and association, and the other is merely supportive of appellees’ task of ascertaining the applicant’s good faith in taking the constitutional oath. Pp. 164-166. 4. New York’s carefully administered screening System does not necessarily resuit in chilling the exercise of constitutional free-doms, and whether a different policy might be wiser rests with that State’s policy-making bodies. P. 167. 299 F. Supp. 117, affirmed. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, White, and Blackmun, JJ., joined. Harlan, J., filed a concurring opinion, ante, p. 34. Black, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 174. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 185. Norman Dorsen argued the cause for appellants. On the brief for appellants Law Students Civil Rights Research Council, Inc. et al. were Alan H. Levine, Jeremiah S. Gutman, Melvin L. Wulf, and Sanford Jay Rosen. On the brief for appellants Wexler et al. were Leonard B. Boudin, Victor Rabinowitz, and David Rosenberg. David W. Peck argued the cause for appellees. With him on the brief were Louis J. Lefkowitz, Attorney General of New York, Daniel M. Cohen, Assistant Attorney General, and Michael M. Maney. 156 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Mr. Justice Stewart delivered the opinion of the Court. An applicant for admission to the Bar of New York must be a citizen of the United States, hâve lived in the State for at least six months, and pass a written examination conducted by the State Board of Law Examiners. In addition, New York requires that the Appellate Division of the State Suprême Court in the judicial de-partment where an applicant résides must “be satisfied that such person possesses the character and general fit-ness requisite for an attorney and counsellor-at-law.” New York Judiciary Law §90, subd. 1, par. a (1968).1 To carry out this provision, the New York Civil Practice Law and Rules require the appointaient, in each of the four Judicial Departments into which the Suprême Court is divided, of a Committee or Committees on Character and Fitness.2 Section 528.1 of the Rules of the New York Court of Appeals for the Admission of Attorneys and Counsellors-at-Law requires that the character and general fitness specified in Judiciary Law § 90 “must be shown by the affidavits of two reputable persons resid-ing in the city or county in which [the applicant] résides, one of whom must be a practicing attorney of the Suprême Court of this State.” 3 The Committees also re- xThe New York statute, rules, and affidavit forms relevant to the issues in this litigation are set out in the Appendix to this opinion. 2 N. Y. Civ. Prac. Law and Rules, Rule 9401 (1963) ; see also id., Rule 9404. These Rules, originally enacted by the State Législature, may be amended either by the législature or by the New York Judicial Conférence. N. Y. Judiciary Law § 229, subd. 3 (1968) ; N. Y. Civ. Prac. Law and Rules, Rule 102 (1963). 3 N. Y. Judiciary Law Appendix § 528.1 (Supp. 1970). This section, recently renumbered with no change in its wording, is re-ferred to throughout the briefs and earlier opinions as Rule VIII of the New York Court of Appeals. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 157 154 Opinion of the Court quire the applicant himself to fill out a questionnaire.4 After receipt of the affidavits and questionnaire, the Committees conduct a Personal interview with each applicant. As a final step before actual admission to the Bar, an applicant must take an oath that he will support the Constitutions of the United States and of the State of New York.5 This case involves a broad attack, primarily on First Amendment vagueness and overbreadth grounds, upon this System for screening applicants for admission to the New York Bar. The appellants, plaintiffs in the trial court, are organizations and individuals claiming to rep-resent a class of law students and law graduâtes similarly situated, seeking or planning to seek admission to practice law in New York. They commenced two separate actions for declaratory and injunctive relief in the United States District Court for the Southern District of New York, naming as défendants two Committees on Character and Fitness and their members and two Appellate Divisions and their judges.6 The complaints attacked the statutes, rules, and screening procedures as invalid on their face or as applied in the First and Second Departments. A three-judge court was con-vened and Consolidated the two suits. In a thorough opinion, the court considered the appellants’ daims and found certain items on the questionnaires as they then stood to be so vague, overbroad, and intrusive upon applicants’ private lives as to be of doubtful constitutional validity.7 It granted the partial 4Answers to these questionnaires are treated as confidential. 5 N. Y. Judiciary Law § 466 (1968) ; N. Y. Const., Art. XIII, § 1. 6 The suits were brought under 28 U. S. C. § 1343 (3) and 42 U. S. C. § 1983. 7 299 F. Supp. 117. The appellees had already, both before and after the commencement of this litigation, eliminated or revised 415-649 0 - 72 - 16 158 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. relief indicated by these findings, approving or further amending the revised questions submitted by the appelles to conform to its opinion.8 It upheld the statutes and rules as valid on their face and, with the exceptions noted, sustained the validity of New York’s System. This appeal foliowed, and we noted probable jurisdiction. 396 U. S. 999.9 We note at the outset that no person involved in this case has been refused admission to the New York Bar. Indeed, the appellants point to no case in which they claim any applicant has ever been unjustifiably denied permission to practice law in New York State under these or earlier statutes, rules, or procedures. The basic thrust of the appellants’ attack is, rather, that New certain questions to which the appellants had originally raised objections. See id., at 129 and n. 6. 8 No cross-appeal has been taken from this partial grant of the requested injunction. We therefore hâve no occasion to consider whether the District Court’s action was correct. 9 Our jurisdiction of this appeal rests on 28 U. S. C. § 1253, the three-judge panel having been properly convened since the suits attacked state statutes as violative of the Fédéral Constitution and requested injunctive relief, 28 U. S. C. § 2281, which the District Court partially denied. The appellees are the Committees on Character and Fitness of the First and Second Departments ; their individual members; the First and Second Departments of the Appellate Division of the Suprême Court of the State of New York; and their individual justices. The appellees contend, as they did below, that the state courts and their justices are not within the jurisdiction of the fédéral courts because they are not “persons” within the mean-ing of 42 U. S. C. § 1983. The District Court rejected this argument, reasoning that the courts and the justices were acting in an administrative capacity and that an injunction here could hâve no inhibiting effect on the proper performance of judicial duties. 299 F. Supp., at 123-124. The appellees took no cross-appeal and did not press the point in their motion to affirm. We therefore pursue the matter no further. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 159 154 Opinion of the Court York’s System by its very existence works a “chilling effect” upon the free exercise of the rights of speech and association of students who must anticipate having to meet its requirements. I The three-judge District Court, although divided on other questions, was unanimous in finding no constitutional infirmity in New York’s statutory requirement that applicants for admission to its Bar must possess “the character and general fitness requisite for an attorney and counsellor-at-law.” 10 We hâve no difficulty in affirming this holding. See Konigsberg v. State Bar, 366 U. S. 36, 40-41; Schware v. Board of Bar Examinera, 353 U. S. 232, 247 (Frankfurter, J., concurring). Long usage in New York and elsewhere has given well-defined contours to this requirement, which the appellees hâve construed narrowly as encompassing no more than “dishonorable conduct relevant to the legal profession,” see 299 F. Supp., at 144 n. 20 (separate opinion of Motley, J.) ; see also Schware v. Board of Bar Examiner s, supra, at 247 (Frankfurter, J., concurring). The few reported cases in which bar admission has been denied on character grounds in New York ail appear to hâve involved instances of misconduct clearly inconsistent with the standards of a lawyer’s calling.11 10 299 F. Supp., at 124-125 (majority opinion of Friendly, J.) ; id., at 143-144' (separate opinion of Motley, J.). 11 See, e. g., Matter of Cassidy, 268 App. Div. 282, 51 N. Y. S. 2d 202, aff’d per curiam, 296 N. Y. 926, 73 N. E. 2d 41 ; Matter of Portnow, 253 App. Div. 395, 2 N. Y. S. 2d 553; Matter of Green-blatt, 253 App. Div. 391, 2 N. Y. S. 2d 569; Matter of Peters, 221 App. Div. 607, 225 N. Y. S. 144, aff’d per curiam, 250 N. Y. 595, 166 N. E. 337; cf. Matter of Anonymous, 17 N. Y. 2d 674, 216 N. E. 2d 612. Cf. also In re Stolar, ante, p. 23, in which it appears that the peti-tioner there had previously been admitted to the New York Bar 160 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. This Court itself requires of applicants for admission to practice before it that “their private and professional characters shall appear to be good.”12 Every State, plus the District of Columbia, Puerto Rico, and the Virgin Islands, requires some similar qualification.13 But, the appellants contend, even though the statutory standard may be constitutionally valid, the methods used by the Committees to satisfy themselves that applicants meet that standard are not. Specifically, the appellants object to the terms of the third-party affidavits attesting to an applicant’s good moral character. Dur-ing this litigation, the appellees revised the affidavit forms in several respects. Whatever may hâve been said of the affidavits formerly used, we can find nothing in the présent forms remotely vulnérable to constitutional attack. In the Second Department, for example, an affiant is asked to state whether he has visited the applicant’s home and, if so, how often. We think it borders on the frivolous to say that such an inquiry offends the applicant’s “right to privacy protected by the First, Fourth, Ninth, and Fourteenth Amendments.” It is the applicant who selects the two people who will sign affidavits on his behalf, and the Committees may reasonably inquire as to the nature and extent of an affiant’s actual acquaintance with the applicant.14 under the standards in use before the commencement of this litigation. There is, moreover, no indication that either Charles Evans Hughes or John W. Davis, despite the fears reflected in Mr. Justice Black’s dissenting opinion, post, at 180-181, encountered any diffi-culty whatever in gaining admission to the New York Bar. 12 U. S. Sup. Ct. Rule 5 (1). 13 See 5 1971 Martindale-Hubbell Law Directory, passim (103d ed 1970). 14 In the District Court the appellants also attacked—unsuccess-fully—the practice of conducting personal interviews. They do not appear to press such objections here, either as to the practice generally or as to the conduct of any particular interviews. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 161 154 Opinion of the Court II As stated at the outset of this opinion, New York has further standards of eligibility for admission to its Bar. An applicant must be a United States citizen and a New York résident of six months’ standing. And before he may be finally admitted to practice, an applicant must swear (or affirm) that he will support the Constitutions of the United States and of the State of New York. Reflecting these requirements, Rule 9406 of the New York Civil Practice Law and Rules directs the Committees on Character and Fitness not to certify an applicant for admission “unless he shall furnish satis-factory proof to the effect” that he is a citizen of the United States, has resided in New York for at least six months, has complied with the applicable statutes and rules, and “believes in the form of the government of the United States and is loyal to such government.” The appellants do not take issue with the citizenship and minimum-residence requirements, nor with the items on the questionnaires for applicants dealing with these requirements. Their constitutional attack is mounted against the requirement of belief “in the form of” and loyalty to the Government of the United States, and upon those parts of the questionnaires directed thereto. We do not understand the appellants to question the constitutionality of the actual oath an applicant must take before admission to practice. In any event, there can be no doubt of its validity. It merely requires an applicant to swear or affirm that he will “support the constitution of the United States” as well as that of the State of New York. See Knight v. Board of Regents, 269 F. Supp. 339, aff’d per curiam, 390 U. S. 36; Hosack v. Smiley, 276 F. Supp. 876, aff’d per curiam, 390 U. S. 162 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. 744; Ohlson v. Phillips, 304 F. Supp. 1152, aff’d per curiam, 397 U. S. 317.15 If ail we had before us were the language of Rule 9406, which seems to require an applicant to furnish proof of his belief in the form of the Government of the United States and of his loyalty to the Government, this would be a different case. For the language of the Rule lends itself to a construction that could raise sub-stantial constitutional questions, both as to the burden of proof permissible in such a context under the Due Process Clause of the Fourteenth Amendment, Speiser v. Randall, 357 U. S. 513, and as to the permissible scope of inquiry into an applicant’s political beliefs under the First and Fourteenth Amendments, e. g., Baggett v. Buïlitt, U. S. 360; Barenblatt v. United States, 360 U. S. 109; Speiser v. Randall, supra, at 527; Beilan v. Board of Public Education, 357 U. S. 399; Sweezy v. New Hampshire, 354 U. S. 234. But this case cornes before us in a significant and unusual posture: the appellees are the very state authorities entrusted with the definitive interprétation of the language of the Rule. We therefore accept their interprétation, however we might construe that language were it left for us to do so. If the appellees be regarded as state courts, we are of course bound by their construction. See, e. g., Baggett 15 Cf. U. S. Const., Art. VI, cl. 3: “The Senators and Représentatives before mentioned, and the Members of the several State Législatures, and ail executive and judicial Ofîicers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution ... y See also U. S. Sup. Ct. Rule 5 (4), requiring an applicant for admission to the Bar of this Court to swear or affirm that he will “support the Constitution of the United States.” LAW STUDENTS RESEARCH COUNCIL v. WADMOND 163 154 Opinion of the Court v. Bullitt, supra, at 375 ; Kingsley International Pictures Corp. v. Regents of the University, 360 U. S. 684, 688; Speiser N. Randall, supra, at 519; Terminiello v. Chicago, 337 U. S. 1, 5-6. If they are viewed as state administrative agencies charged with enforcement and construction of the Rule, their view is at least entitled to “respectful considération,” Fox v. Standard OU Co., 294 U. S. 87, 96 (Cardozo, J.), and we see no reason not to accept their interprétation in this case. The appellees hâve made it abundantly clear that their construction of the Rule is both extremely narrow and fully cognizant of protected constitutional freedoms.16 There are three key éléments to this construction. First, the Rule places upon applicants no burden of proof.17 Second, “the form of the government of the United States” and the “government” refer solely to the Constitution, which is ail that the oath mentions. Third, “belief” and “loyalty” mean no more than willingness to take the constitutional oath and ability to do so in good faith. Accepting this construction, we find no constitutional invalidity in Rule 9406. There is “no showing of an intent to penalize political beliefs.” Konigsberg v. State Bar, 366 U. S., at 54. At the most, the Rule as authori-tatively interpreted by the appellees performs only the 16 Rule 9406 does not itself directly impinge upon applicants ; it is rather an instruction to the appellees, touching applicants only as filtered through the appellees’ construction. 17 As this case cornes to us from the District Court, the sum total of what applicants must do in the first instance to satisfy any “burden” placed upon them by the Rule is simply to answer two questions on the questionnaire they submit to the appellee committees. These questions are discussed in Part III of this opinion, infra. 164 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. function of ascertaining that an applicant is not one who “swears to an oath pro forma while declaring or mani-festing his disagreement with or indifférence to the oath.” Bond v. Floyd, 385 U. S. 116, 132. III As this case cornes to us from the three-judge panel, the questionnaire applicants are asked to complété con-tains only two numbered questions reflecting the dis-puted provision of Rule 9406.18 They are as follows: “26. (a) Hâve you ever organized or helped to organize or become a member of any organization or group of persons which, during the period of your membership or association, you knew was advocat-ing or teaching that the government of the United States or any state or any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means? -------------- If your answer is in the affirmative, state the facts below. 18 The District Court ordered the élimination or révision of the following questions contained in the questionnaires at the time this litigation was commenced: “26. Hâve you ever organized or helped to organize or become a member of or participated in any way whatsoever in the activities of any organization or group of persons which teaches (or taught) or advocates (or advocated) that the Government of the United States or any State or any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means ? -------- If your answer is in the affirmative, state the facts below. “27 (a). Do you believe in the principles underlying the form of government of the United States of America? ---------” “31. Is there any incident in your life not called for by the foregoing questions which has any favorable or detrimental bearing on your character or fitness? --------- If the answer is ‘Yes’ state the facts.” [In the Second Department the words “favorable or” did not appear.] None of the above questions is in issue here. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 165 154 Opinion of the Court “(b) If your answer to (a) is in the affirmative, did you, during the period of such membership or association, hâve the spécifie intent to further the aims of such organization or group of persons to overthrow or overturn the government of the United States or any state or any political subdivision thereof by force, violence or any unlawful means? “27. (a) Is there any reason why you cannot take and subscribe to an oath or affirmation that you will support the constitutions of the United States and of the State of New York? If there is, please explain. “(b) Can you conscientiously, and do you, affirm that you are, without any mental réservation, loyal to and ready to support the Constitution of the United States?” ---------. In dealing with these questions, we emphasize again that there has been no showing that any applicant for admission to the New York Bar has been denied admission either because of his answers to these or any similar questions, or because of his refusai to answer them. Necessarily, therefore, we must consider the validity of the questions only on their face, in light of Rule 9406 as construed by the agencies entrusted with its administration. Question 26 is precisely tailored to conform to the relevant decisions of this Court. Our cases establish that inquiry into associations of the kind referred to is permissible under the limitations carefully observed here. We hâve held that knowing membership in an organization advocating the overthrow of the Government by force or violence, on the part of one sharing the spécifie intent to further the organization’s illégal goals, may be made criminally punishable. Scales v. United States, 367 U. S. 203, 228-230. It is also well settled that Bar examiners may ask about Communist 166 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. affiliations as a preliminary to further inquiry into the nature of the association and may exclude an applicant for refusai to answer. Konigsberg v. State Bar, 366 U. S., at 46-47. See also, e. g., United States v. Robel, 389 U. S. 258; Keyishian v. Board oj Regents, 385 U. S. 589; Eljbrandt v. Russell, 384 U. S. 11; Beilan v. Board oj Public Education, 357 U. S. 399; Garner n. Board oj Public Works, 341 U. S. 716.19 Surely a State is con-stitutionally entitled to make such an inquiry of an applicant for admission to a profession dedicated to the peaceful and reasoned settlement of disputes between men, and between a man and his government. The very Constitution that the appellants invoke stands as a living embodiment of that idéal. As to Question 27, there can hardly be doubt of its constitutional validity in light of our earlier discussion of Rule 9406 and the appellees’ construction of that Rule. The question is simply supportive of the appellees’ task of ascertaining the good faith with which an applicant can take the constitutional oath. Indeed, the “without any mental réservation” language of part (b) is the same phrase that appears in the oath required of ail fédéral uniformed and civil service personnel. 5 U. S. C. § 3331 (1964 ed., Supp. V). New York’s question, however, is less demanding than the fédéral oath. Taking the oath is a requisite for fédéral employment, but there is no indication that a New York Bar applicant would not be given the opportunity to explain any “mental réservation” and still gain admission to the Bar. 19 Division of Question 26 into two parts is wholly permissible under Konigsberg v. State Bar, supra, which approved asking whether an applicant had ever been a member of the Communist Party without asking in the same question whether the applicant shared its illégal goals. Moreover, this division narrows the class of applicants as to whom the Committees are likely to find further investigation ap-propriate. For those who answer part (a) in the négative, that is the end of the matter. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 167 154 Opinion of the Court IV Finally, there emerges from the appellants’ briefs and oral argument a more fundamental claim than any to which we hâve thus far adverted. They suggest that, whatever the facial validity of the various details of a screening System such as New York’s, there inheres in such a System so constant a threat to applicants that constitutional deprivations will be inévitable. The implication of this argument is that no screening would be constitutionally permissible beyond academie examination and extremely minimal checking for serious, concrète character deficiencies. The principal means of policing the Bar would then be the deterrent and punitive effects of such post-admission sanctions as contempt, disbarment, malpractice suits, and criminal prosecutions. Such an approach might be wise policy, but decisions based on policy alone are not for us to make. We hâve before us a State whose agents hâve evidently been scrupulous in the use of the powers that the appellants attack, and who hâve shown every willingness to keep their investigations within constitutionally permissible limits. We are not persuaded that careful administration of such a System as New York’s need resuit in chilling effects upon the exercise of constitutional free-doms. Consequently, the choice between Systems like New York’s and approaches like that urged by the appellants rests with the législatures and other policy-making bodies of the individual States. New York has made its choice. To disturb it would be beyond the power of this Court. The judgment is Affirmed. [For concurring opinion of Mr. Justice Harlan, see ante, p. 34.] 168 OCTOBER TERM, 1970 Appendix to opinion of the Court 401 U. S. APPENDIX TO OPINION OF THE COURT New York Judiciary Law (1968) : Article 4—Appellate Division. § 90. Admission to and removal from practice by appellate division; character committees 1. a. Upon the state board of law examiners certifying that a person has passed the required examination, or that the examination has been dispensed with, the appellate division of the suprême court in the department to which such person shall hâve been certified by the state board of law examiners, if it shall be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law, shall admit him to practice as such attorney and counsellor-at-law in ail the courts of this state, provided that he has in ail respects complied with the rules of the court of appeals and the rules of the appellate divisions relating to the admission of attorneys. New York Civil Practice Law and Rules (1963) : Article 94—Admission to Practice. Rule 9401. Committee The appellate division in each judicial department shall appoint a committee of not less than three practicing lawyers for each judicial district within the department, for the purpose of investigating the character and fitness of every applicant for admission to practice as an attorney and counselor at law in the courts of this state. Each member of such committee shall serve until his death, résignation or the appointment of his successor. A lawyer who has been or who shall be appointed a member of the committee for one district may be appointed a member of the committee for another district within the same department. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 169 154 Appendix to opinion of the Court Rule 9404. Certificate of character and fitness Unless otherwise ordered by the appellate division, no person shall be admitted to practice without a certificate from the proper committee that it has carefully investi-gated the character and fitness of the applicant and that, in such respects, he is entitled to admission. To enable the committee to make such investigation the committee, subject to the approval of the justices of the appellate division, is authorized to prescribe and from time to time to amend a form of statement or questionnaire on which the applicant shall set forth in his usual handwriting ail the information and data required by the committee and the appellate division justices, including specifically his présent and past places of actual résidence, listing the Street and number, if any, and the period of time he resided at each place. Rule 9406. Proof No person shall receive said certificate from any committee and no person shall be admitted to practice as an attorney and counselor at law in the courts of this state, unless he shall furnish satisfactory proof to the effect: 1. that he believes in the form of the government of the United States and is loyal to such government; 2. that he is a citizen of the United States; 3. that he has been an actual résident of the state of New York for six months prior to the filing of his application for admission to practice; and 4. that he has complied with ail the requirements of this rule and with ail the requirements of the applicable statutes of this state, the applicable rules of the court of appeals and the applicable rules of the appellate division in which his application is pending, relating to the admission to practice as an attorney and counselor at law. 170 OCTOBER TERM, 1970 Appendix to opinion of the Court 401 U. S. New York Judiciary Law Appendix (Supp. 1970) : Rules of the Court of Appeals for the Admission of Attorneys and Counselors-at-Law. PART 52 8—PROOF OF MORAL CHARACTER § 528.1 General régulation Every applicant for admission to the bar must produce before a committee on character and fitness appointed by an Appellate Division of the Suprême Court and file with such committee evidence that he possesses the good moral character and general fitness requisite for an attorney and counselor at law as provided in section 90 of the Judiciary Law, which must be shown by the affidavits of two reputable persons residing in the city or county in which he résides, one of whom must be a prac-ticing attorney of the Suprême Court of this State. § 528.2 Supporting affidavits Such affidavits must state that the applicant is, to the knowledge of the affiant, a person of good moral character and must set forth in detail the facts upon which such knowledge is based. Such affidavits shall not be conclusive, and the court may make further examination and inquiry through its committee on character and fitness or otherwise. § 528.3 Certificate of Board of Law Examiners Every applicant who pursued the study of law pur-suant to these rules must file with such committee on character and fitness his certificate from the State Board of Law Examiners showing compliance with these rules. § 528.4 Discrétion of Appellate Division The justices of the Appellate Division in each depart-ment shall adopt for their respective departments such additional rules for ascertaining the moral and general fitness of applicants as to such justices may seem proper. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 171 154 Appendix to opinion of the Court AFFIDAVIT WITH RESPECT TO CHARACTER OF APPLICANT Suprême Court of the State of New York Appellate Division: First Judicial Department In the Matter of the Application of 1. * For Admission to the Bar State of 1 ? SS ’ COUNTY OF 2................................, being duly sworn, makes the following statement: 3. Résidence of affiant: 4. Nature of affiant’s business: 5. Business address of affiant: 6. Length and nature of affiant’s acquaintance with applicant: a. Résidence of applicant: b. Persons with whom applicant lives (if known to affiant) : 7. Affiant’s conclusions as to applicant’s moral character: 8. Facts upon which affiant’s knowledge or opinion as to applicant’s moral character is based: 9. IF THIS AFFIDAVIT IS MADE B Y THE SPONSORING ATTORNEY, his sponsors’ statement (see items 9 and 10 of instruction sheet) may be made here: (Signature) Sworn to before me this...... day of................, 19.... (DO NOT FORGET TO HAVE ALL AFFIDAVITS NOTARIZED) (Note: No back shall be put on Affidavits) *Give name of applicant as it appears on the certificate of the State Board of Law Examiners. 172 OCTOBER TERM, 1970 Appendix to opinion of the Court 401 U. S. NEW YORK SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT Form for Affidavit IN THE MATTER OF THE of Character APPLICATION and Residence of PLEASE NOTE The answers to ail questions are to be written, preferably in typewriting, by or under • the direction of the affiant. It is desired that both the ................................. subject matter and the lan- (Insert name of applicant) guagc of angwer shaU be for Admission to Practise as an At- suPPlied b? the and . „ . , T not by the applicant. torney and Counselor-at-Law x , Nothmg not personally known _________________________________ to affiant should be stated. STATE OF.....................1 l qq • COUNTY OF....................| ..............................., the affiant, being duly sworn, (Name of Affiant) déposés and says that the answers to the following questions hâve been written by or under the direction of affiant, and that both questions and answers hâve been carefully read by affiant and that the several answers are true of affiant’s own knowledge, except those stated to hâve been made on information and belief, and those stated to give the opinion or belief of affiant, and as to those answers, affiant believes them to be true. 1. (a) Home address of affiant (including County). (b) Business address. 2. Nature of business? (If a lawyer, state whether or not you are a practising attorney of the Suprême Court of the State of New York, and/or an attorney of any court or courts in any other state, country or jurisdiction, specifying each such state, country or jurisdiction, and give place of admission to the Bar, and approximate date of such admission.) LAW STUDENTS RESEARCH COUNCIL v. WADMOND 173 154 Appendix to opinion of the Court 3. How long hâve you known the applicant personally? 4. State whether you are related to applicant by blood or marriage, or if there is any business, professional or similar relationship between you and the applicant or his family? 5. Describe briefly your associations with the applicant, setting forth how such associations began, and indicate in what activi-ties (business, scholastic, cultural, recreational, athletic, social or otherwise) you hâve participated with applicant. It is not a sufficient answer merely to repeat the above words in paren-thesis, but the particular activities should be specified. 6. How often hâve you corne in contact with applicant during the entire period of acquaintance? (“Frequently” or “often” or other indefinite statement is not a satisfactory answer.) 7. What is your conclusion as to applicant’s moral character? (Reserve details for next question.) 8. State in detail the facts upon which your knowledge or opinion as to applicant’s character is based. 9. Hâve you visited applicant’s (a) parental home; (b) marital home, if any; (c) any other home or place of abode applicant may hâve had? 10. (a) How often hâve you visited the parental, marital or other home or place of abode of applicant? (“Frequently” or “often” or other indefinite statement is not a satisfactory answer. Note that in most cases visits will be less frequent than the contacts mentioned in Q. 6, above.) (b) During what years (stating approximate dates) ? (c) At what addresses (listing them specifically) ? O Sworn to before me this œ day of 19 (Affiant to sign here) (Attesting officer to sign here) (Official désignation) 415-649 0 - 72 - 17 174 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. Mr. Justice Black, with whom Mr. Justice Douglas joins, dissenting. Of course I agréé that a State may require that appli-cants and members of the Bar possess the good “character and general fitness requisite for an attorney.” But it must be remembered that the right of a lawyer or Bar applicant to practice his profession is often more valuable to him than his home, however expensive that home may be. Therefore I think that when a State seeks to deny an applicant admission or to disbar a lawyer, it must proceed according to the most exacting demands of due process of law. This must mean at least that the right of a lawyer or Bar applicant to practice cannot be left to the mercies of his prospective or présent competi-tors. When it seeks to deprive a person of the right to practice law, a State must accord him the same rights as when it seeks to deprive him of any other property. Perhaps almost anyone would be stunned if a State sought to take away a man’s house because he failed to prove his loyalty or refused to answer questions about his political beliefs. But it seems to me that New York is attempting to deprive people of the right to practice law for precisely these reasons, and the Court is approv-ing its actions. Here the Court upholds a New York law which re-quires that a Bar applicant not be admitted “unless he shall furnish satisfactory proof” that he “believes in the form of the government of the United States and is loyal to such government.” Rule 9406, New York Civil Practice Law and Rules. It also approves certain questions about political associations and beliefs which New York requires ail applicants to answer. From these holdings I dissent. In my view, the First Amendment absolutely prohibits a State from penalizing a man because of his beliefs. American Communications Assn. v. Douds, 339 U. S. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 175 154 Black, J., dissenting 382, 445 (1950) (Black, J., dissenting). Hence a State cannot require that an applicant’s belief in our form of government be established before he can become a lawyer. As Mr. Justice Roberts said in Cantwell v. Connecticut: “Thus the Amendment embraces two concepts,— freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” 310 U. S. 296, 303-304 (1940). Assuming that a New York statute could constitutionally delegate to a committee of lawyers the power to interrogate applicants for the Bar, the spécifie questions asked in this case are flatly inconsistent with the First Amendment. Questions 26 (a) and 26 (b) state: “(a) Hâve you ever organized or helped to orga-nize or become a member of any organization or group of persons which, during the period of your membership or association, you knew was advocating or teaching that the government of the United States or any state or any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means? ----------- If your an- swer is in the affirmative, state the facts below. “(b) [D]id you, during the period of such membership or association, hâve the spécifie intent to further the aims of such organization or group of persons to overthrow or overturn the government of the United States or any state or any political subdivision thereof by force, violence or any unlawful means?” I do not think that a State can, consistently with the First Amendment, exclude an applicant because he has belonged to organizations that advocate violent overthrow of the Government, even if his membership was “knowing” and he shared the organization’s aims. Y aies 176 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. v. United States, 354 U. S. 298, 339 (1957) (Black, J., concurring and dissenting). American Communications Assn. v. Douds, 339 U. S. 382, 445 (1950) (Black, J., dissenting). The First Amendment was intended to make speech free from government control, even speech which is dangerous and unpopular. And included within the protection of the First Amendment is the right of association; the right to join organizations which them-selves advocate ideas. NAACP v. Alabama, 357 U. S. 449 (1958); Bâtes v. Little Rock, 361 U. S. 516, 527 (1960) (Black, J., and Douglas, J., concurring); Schneider n. Smith, 390 U. S. 17 (1968). It therefore follows for me that governments should not be able to ask questions designed to identify persons who hâve belonged to certain political organizations and then exclude them from the practice of law. Question 27 (b) asks: “Can you conscientiously, and do you, affirm that you are, without any mental réservation, loyal to and ready to support the Constitution of the United States?” In my view, this question also in-vades areas of belief protected by the First Amendment. Here the State seeks to probe an applicant’s state of mind to ascertain whether he is “without any mental réservation, loyal to . . . the Constitution.” But asking about an applicant’s mental attitude toward the Constitution simply probes his beliefs, and these are not the business of the State. Cantwell v. Connecticut, supra; American Communications Assn. v. Douds, supra (Black, J., dissenting) ; cf. In re Summers, 325 U. S. 561, 573 (1945) (Black, J., dissenting). For these reasons, I would reverse the judgment of the court below. Wholly aside from my own views in dissent on what the First Amendment demands, I do not see how today’s decision can be reconciled with other decisions of this Court, to which I shall refer later. The majority seeks LAW STUDENTS RESEARCH COUNCIL v. WADMOND 177 154 Black, J., dissenting to avoid this conflict by a process of narrowing construction. It states: “First, the Rule places upon applicants no burden of proof. Second, ‘the form of the government of the United States’ and the ‘government’ refer solely to the Constitution, which is ail that the oath mentions. Third, ‘belief’ and ‘loyalty’ mean no more than willingness to take the constitutional oath and ability to do so in good faith.” Ante, at 163. Thus despite the New York law’s command that no applicant shall be admitted “unless he shall furnish satisfactory proof” of his belief and loyalty, the Court holds that this law places on him no burden of proof. The Court seems to assert that this “construction” avoids the problems posed by Speiser v. Randall, 357 U. S. 513 (1958), where we held that taxpayers in order to obtain tax exemptions could not be made to bear the burden of proving that they did not advocate violent overthrow of the Government. We there pointed out that such an allocation of the burden of proof “can only resuit in a deterrence of speech which the Constitution makes free” because the “man who knows that he must bring forth proof and persuade another of the lawful-ness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens.” Id., at 526. I do not believe the Court’s narrowing construction here avoids the force of Speiser for in this case the District Court determined, and the appellees do not contend otherwise, that the New York law places on the applicant a burden of “coming forward with some evidence” to satisfy the Committee. 299 F. Supp. 117, 147. In my view, even this shifting of the burden of coming forward is impermissible in light of Speiser n. Randall. The Court held in Speiser that 178 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. the defect in the California procedure was not only that the applicant bore the final burden of persuasion but that “when the constitutional right to speak is sought to be deterred by a State’s general taxing program due process demands that the speech be unencumbered until the State cornes forward with sufficient proof to justify its inhibition.” Id., at 528-529 (emphasis added). Although that case dealt with a tax exemption applicable to vétérans, I can see no reason why the First Amendment should ofïer any less protection to applicants for admission to the Bar. If there is to be any différence at ail, I should think a man’s right to practice a profession should be accorded greater protection than his right to a tax exemption. In Part III of its opinion the Court holds that New York may demand an answer to Question 27 (b) which asks whether the applicant is loyal to the Constitution “without any mental réservation.”* The majority rea-sons that an answer to this question may be required be-cause it assists the Committee in assessing “the good faith with which an applicant can take the constitutional oath.” This constitutional oath referred to is simply a pledge that the applicant will “support the Constitution of the United States” and that of New York. I hâve no doubt whatsoever about the validity of this oath. See Knight v. Board of Regents, 269 F. Supp. 339 (SDNY 1967), aff’d per curiam, 390 U. S. 36 (1968). But the issue here is whether New York can conduct an inquisition into an applicant’s beliefs hoping to discrédit the sincerity of his oath. The question requires an applicant to affirm that he holds a certain belief, namely that he is “loyal” “without any mental réservation . . . to . . . the Constitution.” This requirement is a quite different thing from New York’s constitutional oath, which is similar to that *The question is set out in full, ante, at 165. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 179 154 Black, J., dissenting required of the President and of applicants for admission to the Bar of this Court. The latter are promissory oaths in which the déclarant promises that he will per-form certain duties in the future. But Question 27 (b) does not require a promise of future action. It demands that an applicant swear that he holds a certain belief at that very moment, loyalty to the Constitution “without any mental réservation.” Aside from the serious vagueness problems which inhere in an oath that one is “loyal” “without any mental réservation,” cf. Baggett N. Bullitt, 377 U. S. 360 (1964), this is an attempt to deny admission to the Bar for failure to hold a certain belief. And we hâve consistently held that the First Amendment forbids a State to impose a sanction or withhold a benefit because of what a man believes. Baird v. State Bar of Arizona, ante, p. 1, at 6-7; id., at 9 (Stewart, J., concur-ring in judgment) ; West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943); Cantwell v. Connecticut, supra. The majority’s reasoning that Question 27 (b) may be employed to test an applicant’s sincerity also flatly ignores our unanimous holding in Bond v. Floyd, 385 U. S. 116 ( 1966). There the Georgia House of Représentatives excluded duly elected member Julian Bond on the grounds that his statements criticizing the Vietnam war gave “aid and comfort to the enemies of the United States” and showed he did not support the Constitution. Id., at 125. We held that exclusion on these grounds vio-lated Bond’s First Amendment rights. The appellees there argued strenuously that the First Amendment did not deprive them of power to test Bond’s “sincerity.” A three-judge Fédéral District Court, one judge dissenting, had accepted the appellees’ theory. 251 F. Supp. 333 (1966). But we reversed the court below on the ground that the existence of an oath of office: “does not authorize a majority of state legislators to test the sincerity with which another duly elected 180 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. legislator can swear to uphold the Constitution. Such a power could be utilized to restrict the right of legislators to dissent from national or state policy or that of a majority of their colleagues under the guise of judging their loyalty to the Constitution.” 385 U. S., at 132. The majority offers no reason why a “sincerity test” may be applied to New York Bar applicants when it may not be applied to Georgia legislators. Perhaps the majority considers it relevant that New York has not yet actually excluded a Bar applicant because of his lack of “sincerity” and perhaps would not permit such an exclusion. Certainly the unanimous holding in Bond seems to compel the conclusion that it would not approve déniai of admission to the New York Bar because of insincere oath taking. Yet the majority opinion seems to indicate that such exclusion is permissible. And if New York cannot constitutionally use the results of its “sincerity test” to exclude an applicant, what valid state interest can possibly be served by this inquiry into an applicant’s beliefs? Baird v. State Bar of Arizona, supra, at 6-7; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 (1963). The only other possible ground I can see for the majority’s failure to follow Bond v. Floyd is that it feels a state legislator’s First Amendment rights are more worthy of protection than those of an applicant to the Bar. If our form of représentative government is to function as the Framers of our Fédéral and State Constitutions intended, the right of legislators to dissent freely is essential. But the framers of the First Amendment intended also that its protection should extend not to some limited groups but to ail citizens. Just as a démocratie society needs legislators willing and able to criti-cize national and state policy, so it needs lawyers who will defend unpopular causes and champion unpopular LAW STUDENTS RESEARCH COUNCIL v. WADMOND 181 154 Black, J., dissenting clients. As I hâve pointed out in another case involv-ing requirements for admission to the Bar, society needs men in the legal profession “like Charles Evans Hughes, Sr., later Mr. Chief Justice Hughes, who stood up for the constitutional rights of socialists to be socialists and public officiais despite the threats and clamorous protests of self-proclaimed super patriots—men like Charles Evans Hughes, Jr., and John W. Davis, who, while against everything for which the Communists stood, strongly advised the Congress in 1948 that it would be unconstitutional to pass the law then proposed to outlaw the Communist Party—men like Lord Erskine, James Otis, Clarence Darrow, and the multitude of others who hâve dared to speak in defense of causes and clients without regard to Personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humili-ate and dégradé it.” In re Anastaplo, 366 U. S. 82, 115-116 (1961) (Black, J., dissenting). The Court also holds that New York may require applicants to answer Questions 26 (a) and 26 (b), which inquire about their associational activities and which hâve been set out in full, supra, at 175. I fail to see how the majority’s approval of these questions can be reconciled with Baird v. State Bar oj Arizona, supra, and In re Stolar, ante, p. 23. The majority’s conclusion that these questions do not violate the First Amendment seems to be based on the assumption that the State may punish a man for knowing membership in an organization which advocates violent overthrow of the Government if he specifically intends to bring about such overthrow. On this assumption, the majority ap- 182 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. pears to conclude that since such conduct is criminally punishable, the State may inquire about it in order to ex-clude an individual who has been a member of one of these organizations with the requisite intent. In Baird v. State Bar of Arizona and In re Stolar, we hold today that States may not require an applicant to the Bar to answer the question “hâve you been a member of any organization that advocates overthrow of the government by force?” Ohio recognized in Stolar that it could not exclude an applicant unless he had knowledge of the organization’s aims at the time of his membership. However, it argued that its question was appropriate because it was merely a préludé to determining whether petitioner was a “knowing” member. We rejected that argument, and held that the First Amendment barred Ohio from demanding an answer to that question which required an applicant to supply information about political activities protected by the First Amendment. In re Stolar, supra, at 30, and see id., at 31 (Stewart, J., concurring in judgment). Here the majority seems to concédé that New York could not possibly exclude an applicant unless he had been a member of an organization advocating forcible overthrow, he knew of these aims, and he had a spécifie intent to help bring them about. Ante, at 165-166. Since even on the majority’s theory New York cannot exclude an applicant unless ail these requirements are met, why is the State permitted to ask Question 26 (a) which makes no reference to “spécifie intent”? In Baird and Stolar five members of the Court agreed that questions asked by Bar admissions committees were invalid because they inquired about activities protected by the First Amendment. Why then is the same resuit not required here? It may be argued, of course, that Question 26 is suf-ficiently spécifie under the majority’s standard because parts (a) and (b) taken together do include a “spécifie LAW STUDENTS RESEARCH COUNCIL v. WADMOND 183 154 Black, J., dissenting intent” requirement. But the Court’s holding permits the knowledge and spécifie intent éléments of Question 26 to be split into two parts. This allows the State to force an applicant to supply information about his associations, which, even under the majority’s rationale, are protected by the First Amendment. But even if Questions 26 (a) and 26 (b) were combined into one question, this would not satisfy the standards set by the Court in United States v. Robel, 389 U. S. 258 (1967), and Brandenburg v. Ohio, 395 U. S. 444 (1969). Robel involved a section of the Subversive Activities Control Act barring members of “communist-action” organizations from defense employment. The section was struck down for overbreadth because it sought “to bar employment both for association which may be proscribed and for association which may not be proscribed consist-ently with First Amendment rights.” 389 U. S., at 266. Thus the statute was found defective because it pur-ported to bar persons on account of membership without regard to whether they had been knowing members and had an intent to overthrow the Government. In that case we held the Fédéral Government could not bar a man from private employment in defense facilities unless he had engaged in conduct which could be criminally proscribed. We recognized that banning a man from employment is a form of civil punishment which must meet the requirements of the First Amendment. Cf. Keyishian n. Board of Regents, 385 U. S. 589 (1967). And in Brandenburg n. Ohio, supra, a unanimous Court made clear that association with a group to advocate violence cannot be punished consistently with the First Amendment. In Brandenburg we struck down an Ohio statute which purported to make criminal the act of associating with an assembly to advocate violence to achieve political reform. The Court held that advocacy of violence or the joining with others to do so could not be proscribed “ex- 184 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. cept where such advocacy is directed to inciting or pro-ducing imminent lawless action and is likely to incite or produce such action.” Id., at 447. Clearly the New York questions are not nearly so narrowly drawn. New York seeks to inquire about membership in organizations advising or teaching violent overthrow, for the pur-pose of excluding persons who knowingly belong to such organizations with the requisite intent. See Brief for Appellees 14-15. However, it does not specify that the organization’s advocacy must hâve been “directed to inciting or producing imminent lawless action” and “likely to . . . produce such action.” Thus, for their failure to meet the Brandenburg requirements, the New York questions are overbroad. After our decision in Robel, it should make no différence that New York threatens to exclude people from their chosen livelihood rather than to put them in jail. Perhaps the majority fails to recognize the force of Robel and Brandenburg because Bar applicants seek to become members of a profession very important to the welfare of society; in the majority’s words, a profession “dedicated to the peaceful and reasoned settle-ment of disputes between men, and between a man and his government.” Ante, at 166. Unfortunately, there is some support in our past decisions for the proposition that lawyers are such a spécial group that they should not enjoy the full measure of constitutional rights ac-corded other citizens. See, e. g., Cohen v. Hurley, 366 U. S. 117 (1961), where this Court held that a New York lawyer could be disbarred solely for relying on his privilège against self-incrimination and refusing to answer certain questions in a state investigation of professional miscon-duct. But I had thought that any such theory was clearly repudiated by our decision in Spevack n. Klein, 385 U. S. 511 (1967), which expressly overruled Cohen. In Spevack we held that New York could not disbar an LAW STUDENTS RESEARCH COUNCIL v. WADMOND 185 154 Marshall, J., dissenting attorney for taking the Fifth Amendment in a disci-plinary proceeding, and we stated: “Like the school teacher in Slochower v. Board of Education, 350 U. S. 551, and the policemen in Garrity v. New Jersey [385 U. S. 493] lawyers also enjoy first-class citizenship.” 385 U. S., at 516. I add only a few words, speaking as a member of the Bar. Quite obviously, its members should be men of high character and ability so that the Bar can fulfill the enormous responsibilities that face it. At the same time, its members and those who aspire to membership should not be disciplined or denied admission without full and unquestioned due process of law and protection of ail their constitutional rights. Discipline or déniai of admission should only take place after notice and hearing before an unquestionably impartial tribunal. I must repeat once again that consistently with due process of law, applicants for a profession cannot be turned over to the whim of their prospective competitors to détermine their right to practice. I think the District Court did magnificent service in stripping the New York Bar of much of its unbridled power over the admission of new members. My only regret is that it did not strip it further. For the foregoing reasons I respectfully dissent from the judgment of the Court. Mr. Justice Marshall, whom Mr. Justice Brennan joins, dissenting. This litigation began with a comprehensive constitutional attack by appellants on longstanding state rules and practices for screening applicants for admission to the New York Bar.1 During the course of the litigation 1 The attack is upon rules of statewide application and practices administered by appellees in the First and Second Judicial Departments. 186 OCTOBER TERM, 1970 Marshall, J., dissenting 401 U. S. some of these practices were changed by appellees; others were found wanting by the three-judge court below, and changed as a resuit of that court’s opinion and its final order. Now we face the residuum of the appellants’ original challenge, and the Court today ratifies every-thing left standing by the court below. I dissent from that holding because I believe that appellants’ basic First Amendment complaint, transcending the particulars of the attack, retains its validity. The underlying complaint, strenuously and consistently urged, is that New York’s screening System focuses impermissibly on the political activities and viewpoints of Bar applicants, that the scheme thereby opérâtes to inhibit the exercise of protected expressive and associational freedoms by law students and others, and that this chilling effect is not justified as the necessary impact of a System designed to winnow out those applicants demonstrably unfit to practice law. As an abstract matter I do not take issue with the proposition that some inquiry into the qualifications of Bar applicants may be made, beyond such obvious threshold qualifications as résidence or success in a reg-ularly administered written examination. Accordingly, I would not upset the general rules which charter an inquiry as to the “fitness” of applicants, absent a showing not made here, that in practice the general rules work an impermissible resuit. But this is hardly the end of the case. For New York is not content with a politically neutral investigation into the fitness of Bar applicants to practice law. Screening officiais are specifically di-rected by state law to assess an applicant’s political beliefs and loyalties, and to scrutinize his associational and other political activities for signs that the applicant holds certain viewpoints. Such an inquiry, in my view, flatly offends the First Amendment, and state laws or adminis- LAW STUDENTS RESEARCH COUNCIL v. WADMOND 187 154 Marshall, J., dissenting trative rules that license such an inquiry must be struck down. Rule 9406 of the New York Civil Practice Law and Rules prescribes: “No person . . . shall be admitted to practice . . . unless he shall furnish satisfactory proof to the effect . . . that he believes in the form of the government of the United States and is loyal to such government . . . .” 2 The Court rightly notes that Rule 9406 is addressed to the appellees, that is, to the investigating committees which pass in the first instance on applications for admission, and also to the relevant judicial department of the Appellate Division of the New York Suprême Court. Appellees, pur suant to Rule 9406, require Bar applicants to answer a questionnaire now containing two questions designed to uncover information about an applicant’s political loyalties and associational affiliations. Question 27,3 set forth in the margin, is one natural conséquence of Rule 9406—part (b) of Question 27 commands an applicant to tell whether he is “without any mental réservation, loyal to and ready to support the Constitution.” Question 26 4 requires an 2 The full text of Rule 9406 is printed, ante, at 169. 3 “27. (a) Is there any reason why you cannot take and subscribe to an oath or affirmation that you will support the constitutions of the United States and of the State of New York? If there is, please explain. “(b) Can you conscientiously, and do you, affirm that you are, without any mental réservation, loyal to and ready to support the Constitution of the United States?” 4 “26. (a) Hâve you ever organized or helped to organize or become a member of any organization or group of persons which, during the period of your membership or association, you knew was advocating or teaching that the government of the United States or any state or any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means? -------------. If your answer is in the affirmative, state the facts below. “(b) If your answer to (a) is in the affirmative, did you, during the period of such membership or association, hâve the spécifie 188 OCTOBER TERM, 1970 Marshall, J., dissenting 401 U. S. applicant to “state the facts” concerning his affiliation with any organization which he knew to advocate political change “by force, violence or any unlawful means.” Under the scheme set in operation by Rule 9406, appellees’ job is to evaluate ail the information turned up by the questionnaire, by required affidavits, by a personal interview with the applicant, and by other means, and then to détermine whether an applicant has made “satisfactory proof” of the specified political beliefs and loyalties. I hâve no doubt whatever that Rule 9406, if read to mean what it says, must fall as violative of settled constitutional principles, or that any inquisition designed to implement a rule so written must equally be barred. Rule 9406 directs screening officiais to probe the contents of an individual’s political philosophy in order to ascer-tain whether he entertains certain beliefs as a matter of personal faith. The Rule, which charters an inquisition, fastens, not upon overt conduct, nor even on activi-ties that incidentally involve the public exposure or advocacy of ideas, but on personal belief itself. Yet it is a settled principle of our constitutional order that, whatever may be the limits of the freedom to act on one’s convictions, the freedom to believe what one will “is absolute.” Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). As we said not long ago in Stanley n. Georgia, 394 U. S. 557, 565 (1969), “Our whole constitutional héritage rebels at the thought of giving government the power to control men’s minds.” The premise that Personal beliefs are inviolate is fundamental to the constitutional scheme as a whole, see Olmstead n. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dis- intent to further the aims of such organization or group of persons to overthrow or overturn the government of the United States or any state or any political subdivision thereof by force, violence or any unlawful means?” LAW STUDENTS RESEARCH COUNCIL v. WADMOND 189 154 Marshall, J., dissenting senting), and the premise is not questioned even in cases where this Court has divided sharply over the extent of the First Amendment’s protections. See, e. g., American Communications Assn. n. Douds, 339 U. S. 382, 412 (1950) (Vinson, C. J., for the Court), and id., at 446-448 (Black, J., dissenting). In the présent case we hâve a rule of New York law which, as written, sanctions systematic inquiry into the beliefs of Bar ap-plicants, and excludes from the practice of law persons having beliefs that are not officially approved.5 This inquiry and this criterion for exclusion are impermissible. However wayward or unorthodox a man’s political beliefs may be, he may not be kept out or drummed out of the Bar or any other profession on that account. The Court purports not to uphold—not to pass upon—Rule 9406 unvarnished. While conceding that the Rule, as it has been written, is constitutionally problematical, the Court asserts that it should be judged in light of the “extremely narrow” interprétation proffered by appellees, who are charged with administer-ing the investigatory scheme contemplated by the Rule. According to the proposed administrative construction, Rule 9406 merely directs appellees to discover whether a Bar applicant is willing and able to promise that he will support the Constitutions of the United States and the State of New York. An oath promising support for the Fédéral and State Constitutions is required of persons 5 In addition to the defects mentioned at text, Rule 9406, as written, violâtes the principle of Speiser v. RandaLl, 357 U. S. 513 (1958). Rule 9406 provides that “no person shall be admitted” to the New York Bar “unless he shall furnish satisfactory proof” of required beliefs and loyalties. Speiser condemns placing eviden-tiary burdens on an applicant for a public benefit, when the benefit may be denied because of the nature of the applicant’s expressive and associational activities. Difficulties in proving the innocence of conduct may deter protected activity as much as a substantive standard that burdens privileged activity by its terms. 415-649 0 - 72 - 18 190 OCTOBER TERM, 1970 Marshall, J., dissenting 401 U. S. admitted to the practice of law in New York, as of state officers generally.6 The Court’s argument, then, is that since the “support” oath may validly be required, see Knight v. Board of Regents, 269 F. Supp. 339 (SD NY 1967), aff’d per curiam, 390 U. S. 36 (1968), it is permissible for appellees to inquire into the willingness and the ability of applicants to take the support oath in full honesty and good faith—further, that since Rule 9406 has been “construed” to sanction no more than such an inquiry into applicants’ sincerity, the Rule and the whole investigatory scheme of the Rule should be upheld. There are several flaws in the Court’s analysis. We are told that while the Rule may be too sweeping, the administrative construction is narrow enough, so the construction saves the Rule. But this argument cannot merit embrace unless, in the first instance, we are able to ascertain the meaning and the sweep of the administrative interprétation itself. The majority opinion points to no New York case law that shows what the proffered interprétation means. Nor, I think, can the Court comfortably point to appellees’ past practice as a guide to the proper interprétation of Rule 9406. For the opinions below and the papers in this case reveal that these appellees, prior to the launching of this litigation, thought it their duty to make virtually unlimited inquiry into an applicant’s associational, political, and journalistic activities.7 Thus past administrative practice, which may 6 See N. Y. Judiciary Law §466 and N. Y. Const., Art. 13, § 1, prescribing the following oath: “I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of -----------, according to the best of my ability.” 7 Judge Motley’s separate opinion below states portions of appellees’ original, unrevised questionnaires that give some idea of appellees’ original conception of their mission under Rule 9406. These questionnaires, utilized in the First or the Second Judicial LAW STUDENTS RESEARCH COUNCIL v. WADMOND 191 154 Marshall, J., dissenting sometimes be helpful in clarifying the sweep of a doubtful law, cf. Fox v. Standard OU Co., 294 U. S. 87, 96-97 (1935), in this case is no help at ail in settling constitutional doubts concerning the reach of Rule 9406. Appellees’ announcement that they will be more restrained, and will focus their inquiries on “sincerity,” is of course entitled to the full respect of a reviewing court. None-theless, I do not believe that Rule 9406 is saved by the announcement. At any rate, we certainly are not con-fronted by “long usage” giving “well-defined contours,” see ante, at 159, to appellees’ proposed construction of the challenged Rule. A second defect of the Court’s analysis is that any attempt to assimilate Rule 9406 to the “support” oath, for First Amendment purposes, must fail. The majority urges such an assimilation on the theory that “ ‘the form of the government of the United States’ and the ‘govern- Department, or both, asked inter alia for a list of ail “unfavorable incidents in your life,” a list containing “each and every club, association, society or organization of which you are or hâve been a member,” a list of “any articles for publication” written by an applicant. An applicant was asked whether he had ever “con-tributed in any way or signed a pétition for” any subversive organization, or had “participated in any way whatsoever” in such organization’s activities. Each applicant was required to “[s]tate ... in not less than 100 words” what he thought were the “principles underlying the form of government of the United States.” See 299 F. Supp., at 137-139. The revised questionnaires for the two departments, the ones passed upon by the court below, had eliminated the most obvious constitutional defects of the original questionnaires. Still, certain remaining questions were found wanting in the District Court’s opinion—for example, the precursor to présent Question 26. In fact, the only question in the présent questionnaire that appears to reflect an “extremely narrow” focus on insincerity of a prospective oath taker—Question 27 (a)—was drafted by the District Court as part of its final order. Appellees’ own proposed rewording was rejected. 192 OCTOBER TERM, 1970 Marshall, J., dissenting 401 U. S. ment’ [terms of Rule 9406] refer solely to the Constitution, which is ail that the oath mentions.” Yet as Mr. Justice Black’s dissent today makes clear, the oath of constitutional support is promissory and forward looking in nature, while the focus of the challenged Rule is quite different. The oath of constitutional support requires an individual assuming public responsibilities to affirm, in entirely familiar and traditional language,8 that he will endeavor to perform his public duties lawfully. This is a far cry from Rule 9406, or Question 27 (b) of appellees’ questionnaires, both of which are designed to probe the Personal political philosophy that an applicant entertains, his beliefs and loyalties and even his “mental réservations.” To require the traditional oath of constitutional support does not put government in the censorial business of investigating, scrutinizing, inter-preting, and then penalizing or approving the political viewpoints of individuals. For that reason the validity of the support oath is sui generis, and does not serve to justify the investigatory scheme set up by Rule 9406. Surely it is a mistake to conclude that because a State may administer a support oath, it may therefore conduct an investigation into the beliefs and affiliations of Bar applicants in order to gauge the depth of their “willing-ness to take the constitutional oath and ability to do so in good faith.” The seeming logic of this position was flatly repudiated in Bond v. Floyd, 385 U. S. 116 (1966). In that case the Court confronted the record of an actual inquiry into the “sincerity” of a prospective oath taker, and the inquiry was found to be an impermissible en-croachment on First Amendment freedoms. The Court noted that the power “to test the sincerity” of a person who must take an oath of constitutional support “could be utilized to restrict the right . . . to dissent from na- 8 See U. S. Const., Art. VI, cl. 3; U. S. Sup. Ct. Rule 5 (4). LAW STUDENTS RESEARCH COUNCIL v. WADMOND 193 154 Marshall, J., dissenting tional or state policy . . . under the guise of judg-ing . . . loyalty to the Constitution.” Id., at 132.9 This is the very power which appellees claim under what the Court calls an “extremely narrow” construction of Rule 9406. It is a power of uncertain and dangerous dimension, and patently susceptible of censorial abuses. For me the conclusion is inescapable that appellees’ construction, far from saving Rule 9406, actually com-pounds its constitutional defects. The original vice of the Rule remains. State screening officiais still are licensed to investigate an applicant’s political activities and affiliations, and to probe his beliefs and loyalties and “mental réservations”—ail this supposedly for the sake of protecting the integrity of the oath of constitutional support. The professed rationale of the enterprise may hâve been refurbished, but the search for true belief and unreserved loyalty remains. So construed, Rule 9406 is plainly overbroad. It sanctions overreaching 9 In the Motion to Affirm appellees rely on the following lan-guage in Bond: “Nor is this a case where a legislator swears to an oath pro forma while declaring or manifesting his disagreement with or indifférence to the oath.” 385 U. S., at 132. This négative characterization of the facts in Bond, barely a dictum, should not be read to approve systematic inquiry into beliefs and affiliations in order to test “sincerity.” Whatever a State may do when an oath taker himself contemporaneously “déclarés” or “manifests” contempt for the oath he is taking, it is quite a different matter to put the onus on a prospective oath taker to satisfy screening officiais that his political activities and beliefs comport with the officiais’ notions of “sincerity.” Indeed, Question 27 (a), which was written by the District Court, addresses the limited concerns of the Bond dictum and handles the remote risk that the oath-taking ceremony might be disrupted by an unwilling applicant. In pressing their search for sincerity beyond Question 27 (a), appellees cast serious doubt on their own assertion that Rule 9406 places no evidentiary burden on an applicant, and thereby reinforce the claim that Rule 9406 violâtes the principle of Speiser v. Randall, 357 U. S. 513 (1958). See n. 5 supra. 194 OCTOBER TERM, 1970 Marshall, J., dissenting 401 U. S. official inquiries. It is impermissibly sweeping as a cri-terion for exclusion from the Bar. The Rule as interprétée! suffers from the very defects that this Court has found fatal to other schemes that hâve sought to predi-cate the grant or déniai of public benefits on a person’s political affiliations and viewpoints. See, e. g., United States n. Robel, 389 U. S. 258 (1967) ; Keyishian v. Board of Regents, 385 U. S. 589 (1967) ; cf. Schneider v. Smith, 390 U. S. 17 (1968). Appellees’ gloss compounds the defects of the Rule, in my view, because the proffered interprétation is vague in the extreme. It is of course conceivable that an inquiry into a Bar applicant’s “sincerity” might be quite simple and definite in scope. Appellees suggest in the Motion to Affirm that some inquiry might be useful “to avoid the difficulty of having one individual demur to the taking of [the support] oath at the very moment prior to admission.” But this limited objective of avoid-ing an embarrassing disruption of the admission ceremony is adequately handled by Question 27 (a), as drafted by the District Court. Plainly, appellees hâve a good deal more in mind, as is shown by their insistence that Question 26 and Question 27 (b) aid in determining an applicant’s “sincerity.” These are the questions that focus on beliefs, loyalties, and affiliations. I cannot say that a Bar applicant, a law student, or anyone else is given fair warning as to the kind of political activities and affiliations that appellees mean to penalize as evi-dencing “insincerity.” Thus, in my view, Rule 9406, as construed, is fatally vague. Standards of definiteness must be strict as to legal rules which trench on First Amendment activities. NAACP v. Button, 371 U. S. 415, 432-433 (1963). See United States v. National Dairy Corp., 372 U. S. 29, 36 (1963). The irreducible vices of due process vagueness, arising when those who LAW STUDENTS RESEARCH COUNCIL v. WADMOND 195 154 Marshall, J., dissenting may be penalized by a legal rule cannot ascertain the rule’s scope and avoid its burdens, see Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939), are inevitably height-ened when the resuit is deterrence of protected activity. Cramp v. Board of Public Instruction, 368 U. S. 278, 287-288 (1961). Appellants’ fundamental complaint throughout this litigation has concerned the inhibitory impact of New York’s screening System on the exercise of First Amendment rights. I agréé that the chilling effect of Rule 9406, as construed, is exacerbated by the sort of vagueness that this Court has condemned on a number of hardly distinguishable occasions. See, e. g., Whitehill v. Elkins, 389 U. S. 54 (1967); Keyishian n. Board of Regents, supra; Dombrowski n. Pfister, 380 U. S. 479 (1965); Baggett v. Bullitt, 377 U. S. 360 (1964); Cramp v. Board of Public Instruction, supra. A further word is required concerning the validity of Question 26 of appellees’ questionnaire. The Court ex-pressly approves Question 26, but fails to consider the relationship of the question to Rule 9406 itself, beyond noting that Question 26 “reflects” the Rule’s command that an applicant’s beliefs and loyalties be investigated. I believe it is a mistake to consider the question entirely in isolation from the investigatory scheme set up by the Rule. See Whitehill v. Elkins, supra, at 56-57 (“we must consider the oath with reference to [related provisions concerning subversives], not in isolation”). Question 26 is undeniably a key part of that scheme. The District Court saw Rule 9406 as an instruction to screening officiais “to satisfy themselves through analysis of the factual data before them” that an applicant has requisite beliefs and loyalties. See 299 F. Supp., at 126. Question 26 is a potent device for uncover-ing “factual data” about an applicant’s associational affiliations. 196 OCTOBER TERM, 1970 Marshall, J., dissenting 401 U. S. Question 26 (a) asks whether the applicant has “ever organized or helped to organize or become a member of” any association that he knew was “advocating or teach-ing” that any local, state, or fédéral governmental institution “should be overthrown or overturned by force, violence or any unlawful means.” Plainly this language covers a wide range of associational activities fully protected by the First Amendment, along with some conduct that may not be privileged. The question is not aimed at concerted activity of whatever sort oriented to the doing of illégal acts, but at affiliations with political associations that “advocate” or “teach” certain political ideas. Ail kinds and degrees of affiliation are covered: indifferent and energetic members alike, in well-disciplined organizations or in any transitory “group of persons.” There is no specificity in the phrase, “overthrown or overturned by force, violence or any unlawful means.” The language covers ail advocacy of thorough-going political change to be brought about partly through unlawful acts—acts to be done now, or at some hypothetical future moment which may or may not occur—acts of bloody and atrocious terror, or conscien-tious action involving nonviolent disobedience to law. “Advocating or teaching” includes the most abstract sort of doctrinal discourse, and ideological utterances alto-gether ancillary to the political program of a given association. Even when viewed in isolation from Rule 9406, Question 26 (a) reveals itself as an indiscriminate and highly intrusive device designed to expose an applicant’s political affiliations to the scrutiny of screening authorities. As such, it cornes into conflict with principles that bar overreaching official inquiry undertaken with a view to predicating the déniai of a public benefit on activity pro- LAW STUDENTS RESEARCH COUNCIL v. WADMOND 197 154 Marshall, J., dissenting tected by the First Amendment.10 Three particular dif-ficulties may be mentioned. First, Question 26 (a) is undeniably overbroad in that it covers the affiliations of those who do not adhéré to teachings concerning unlaw-ful political change, or are simply indifferent to this aspect of an association’s activities. Elfbrandt v. Russell, 384 U. S. 11, 16-19 (1966); Aptheker v. Secretary of State, 378 U. S. 500, 510-512 (1964). Second, no attempt has been made to limit Question 26 (a) to associational advocacy of concrète, spécifie, and imminent illégal acts, or to associational activity that créâtes a serious likelihood of harm through imminent illégal con-duct. See Brandenburg v. Ohio, 395 U. S. 444, 447-449 ; 10 Part (a) of Question 26 is not rendered harmless by reason of the fact that part (b) limits somewhat the breadth of the question as a whole. In the first place, it must be remembered that neither part (a) nor part (b) States the operative criterion for excluding applicants on the basis of political affiliations—the criterion for exclusion, one of impermissible latitude, is given in Rule 9406 itself. Second, if ail applicants who answer part (b) in the affirmative were therefore excluded, while those falling within part (a) only were admitted, the resuit would still be constitutionally problematical. See n. 11 infra. Third, overreaching inquiries are not cured simply by adding narrower follow-up questions. Obviously a State cannot hope to justify the sort of informational demand condemned today in In re Stolar, ante, p. 23, on the theory that the overintrusive inquiry is part of a sériés that culminâtes in a sufficiently narrow question. When the questioning is directed at the political activities and affiliations of applicants for a public benefit, the scope of questioning must be carefully limited in light of the permissible criteria for denying the benefit. Schneider v. Smith, 390 U. S. 17, 24 (1968); Shelton n. Tucker, 364 U. S. 479, 488 (1960). There is no justification for a requirement of overbroad disclosure that chills the exercise of First Amendment freedoms and is not tailored to serve valid governmental interests. See Gibson v. Florida Legislative Investigation Committee, 312 U. S. 539, 546 (1963); Bâtes v. Little Rock, 361 U. S. 516, 524 (1960) ; NAACP v. Alabama, 357 U. S. 449, 462-463 (1958). 198 OCTOBER TERM, 1970 Marshall, J., dissenting 401 U. S. Keyishian v. Board of Regents, 385 U. S., at 599-601. Third, would-be Bar applicants are left to wonder whether particular political acts amount to “becomfing] a member” of a “group of persons”—law students and others, when embarking on associational activities, must guess whether the association’s teachings fall within the nebulous formula of Question 26 (a), or, more to the point, whether their own assessment of an association’s teachings would coincide with that of screening officiais. There are penalties for failing to “state the facts” required by Question 26 (a) when the time to make application cornes. The indefinite scope of Question 26 (a) expectedly opérâtes to induce prospective applicants to résolve doubts by failing to exercise their First Amendment rights. See Dombrowski v. Poster, 380 U. S., at 493-494; Baggett v. Bullitt, 377 U. S., at 367-370. But whatever may be thought of Question 26 or either of its two parts standing alone,11 it remains that the function of the question is to generate “factual data” about an applicant’s political affiliations and activities to be judged ultimately by the operative standards of Rule 11 Part (b) of Question 26 limits part (a) in one respect: applicants affiliated with an association of the kind characterized in part (a), but who do not endorse the association’s teachings con-cerning unlawful political change, need not answer part (b) in the affirmative. Naturally in other respects part (b) has the same sweep as part (a). “Spécifie intent” in this context means doctrinal agreement with the ideological tenets of part (a) associations—or, as appellees put it in their brief, “ 'spécifie intent’ to further the advocacy” of drastic change to be brought about in part by unlawful means. Again the “unlawful means” might be nonviolent or blood-thirsty. The association might be a discussion group lasting for a week. The advocacy might be oriented to a far and contingent future or to the here and now; it might be innocuous or likely to cause imminent and serious harm. A prospective applicant might well be in doubt whether particular associational activity évincés “spécifie intent” or not—or whether, years later perhaps, screening officiais would be willing to infer this state of mind. LAW STUDENTS RESEARCH COUNCIL v. WADMOND 199 154 Marshall, J., dissenting 9406. Doubts concerning the propriety of the question are intensified when the question is viewed realistically as part of the investigatory scheme set up by the Rule. Cf. Whitehill v. Elkins, 389 U. S. 54 (1967). In “stat[ing] the facts” as required by Question 26, an applicant exposes himself to the grave risk that screening officiais will find him wanting in respect of the requisite beliefs and loyalties. The impermissible latitude of Rule 9406 as a criterion for exclusion, in conjunction with overintru-sive probing for details about an applicant’s associational affiliations, créâtes an obvious in terrorem effect on the exercise of First Amendment freedoms by law students and others. The interwoven complexity and uncertain scope of the scheme heighten the danger that caution and conscientiousness will lead to the forfeiting of rights by prospective Bar applicants. See Keyishian v. Board of Regents, supra, at 604. Appellees’ attempt to save the whole scheme by restrictive construction of the Rule amounts, in my view, to little more than a déclaration of beneficent intent, and we hâve said that good intentions “do not neutralize the vice” of vagueness and over-breadth. Baggett n. Bullitt, supra, at 373. The valid aims of appellees’ screening efforts can be achieved without casting a pall on protected activity. But Question 26, viewed in light of Rule 9406, overreaches legitimate concerns and places an impermissible burden on the exercise of fundamental rights. For the reasons stated I would strike down the portions of Rule 9406 discussed herein, as written and construed, and also Questions 26 and 27 (b). To that extent I would reverse the District Court. 200 OCTOBER TERM, 1970 Syllabus 401 U. S. DYSON, CHIEF OF POLICE OF DALLAS, et al. v. STEIN APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS No. 41. Argued April 30, 1970—Reargued November 16, 1970— Decided February 23, 1971 Appellee newspaper publisher, who had been charged with violating a Texas law prohibiting the possession of obscene materials, brought this action in a fédéral district court for an injunction to prevent the Dallas police from arresting him and seizing his prop-erty on obscenity grounds without a prior judicial détermination of obscenity and for a déclaration of the rights of the parties with respect to the statute. A three-judge court was convened and issued declaratory and injunctive relief, holding two parts of the statute unconstitutional and ruling that another part would be constitutional only if the obscenity définition was changed. Held: There was no finding of irréparable injury to appellee and hence no proper basis for fédéral interférence with the pending state criminal prosecution. Younger n. Harris, ante, p. 37; Samuels v. Mackell, ante, p. 66. 300 F. Supp. 602, vacated and remanded. Lonny F. Zwiener, Assistant Attorney General of Texas, reargued the cause for appellants. With him on the brief were Crawjord C. Martin, Attorney General, N ola White, First Assistant Attorney General, Pat Bailey, Executive Assistant Attorney General, Robert C. Flowers, Assistant Attorney General, Henry Wade, pro se, Wilson Johnston, N. Alex Bickley, Thomas B. Thorpe, and Preston Dial. David R. Richards reargued the cause for appellee. With him on the briefs was Melvin L. Wulf. Stanley Fleishman filed a brief pro se et al. as amici curiae urging affirmance. DYSON v. STEIN 201 200 Per Curiam Per Curiam. The appellee, Stein, published a bi-weekly newspaper, the Dallas Notes. Stein was charged with two violations of Art. 527, § 1, of the Texas Penal Code, which then prohibited, among other things, the possession of obscene materials.* While these two cases were pending *Texas Penal Code, Art. 527, 1961 Tex. Gen. Laws, c. 461, § 1, provided : “Section 1. Whoever shall knowingly photograph, act in, pose for, model for, print, sell, offer for sale, give away, exhibit, télévisé, publish, or offer to publish, or hâve in his possession or under his control, or otherwise distribute, make, display, or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, pictures, photograph, motion picture film, image, cast, slide, figure, instrument, statue, drawing, phonograph record, me-chanical recording, or présentation, or other article which is obscene, shall be fined not more than One Thousand Dollars ($1,000) nor imprisoned more than one (1) year in the county jail or both. “Sec. 2. Whoever shall knowingly offer for sale, sell, give away, exhibit, télévisé, or otherwise distribute, make, display, or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, pictures, photograph, motion picture film, image, cast, slide, figure, instrument, statue, drawing, phonograph record, mechanical recording, or présentation, or other article which is obscene, to a minor shall be fined not more than Two Thousand, Five Hundred Dollars ($2,500) nor imprisoned in the county jail more than two (2) years or both. “Sec. 3. For purposes of this article the word 'obscene’ is defined as whether to the average person, applying contemporary com-munity standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided, further, for the purpose of this article, the term ‘contemporary community standards’ shall in no case involve a territory or géographie area less than the State of Texas. “Sec. 4. Whoever shall be convicted for the second time of a violation of this article shall be deemed guilty of a felony and shall be punished by confinement in the State penitentiary for not more than five (5) years or by a fine of not more than Ten Thousand Dollars ($10,000) or by both such fine and imprisonment. Sec. 5. It shall be a defense to any charges brought hereunder if such prohibited matter or act shall be regularly in use in any 202 OCTOBER TERM, 1970 Per Curiam 401 U. S. in state courts, Stein brought the présent action in a fédéral district court under 42 U. S. C. §§ 1983, 1985, representing himself and a class consisting of présent and future employées of and contributors to his news-paper. The défendants were the district attorney of Dallas County, and the Dallas chief of police. He sought: “[P]ermanent injunctive relief against the Dallas Police Department, requiring that . . . there be no arrest of plaintifï, nor seizure of his property on grounds of obscenity without a prior judicial détermination of the obscene character of the material in question; . . . . That the Court adjudge, decree and déclaré the rights of the parties with respect to the application of Article 527 of the Texas Penal Code ; . That the Court grant such other and further relief as is just and équitable.” A three-judge court was convened. 28 U. S. C. § 2284. That court refused to require a hearing on the bona fide, religions, educational or scientific institution or the subject of a bona fide scientific investigation. “The provisions of this Act shall not apply to any motion pictures produced or manufactured as commercial motion pictures which (1) hâve the seal under the Production Code of the Motion Picture Association of America, Inc.; or (2) legally move in interstate commerce under Fédéral Law; or (3) are legally imported from foreign countries into the United States and hâve been passed by a Customs Office of the United States Government at any port of entry. “The provisions of this Act shall not apply to any daily or weekly newspaper. “Sec. 6. The district courts of this State and the judges thereof shall hâve full power, authority, and jurisdiction, upon application by any district or county attorney within their respective jurisdic-tions, to issue any and ail proper restraining orders, temporary and permanent injunctions, and any other writs and processes appropriate to carry out and enforce the provisions of this Act.” DYSON v. STEIN 203 200 Per Curiam obscene character of the material before its seizure and the arrest of the plaintiff. It held that the request for such relief was “based on the alleged harassment and . . . not an attack upon the constitutionality of a statute.” The court went on to emphasize that its considération did “not in any way involve an appraisal of the constitutionality of the application of Article 527 to Plaintiff. Our sole concern is the détermination of whether the statute is constitutionally defective on its face.” The three-judge court then turned to the statute itself, and held that §§ 1 and 2 were unconstitutional, and that § 3 would be constitutional only if the définition of obscenity were changed somewhat. The court issued ap-propriate declaratory and injunctive relief efïectuating its conclusions. 300 F. Supp. 602 (1969). Texas officiais appealed, and we noted probable jurisdiction. 396 U. S. 954 (1969). Today we hâve again stressed the rule that fédéral intervention afïecting pending state criminal prosecutions, either by injunction or by declaratory judgment, is proper only where irréparable in jury is threatened. Douglas v. City of Jeannette, 319 U. S. 157 (1943). The existence of such injury is a matter to be determined carefully under the facts of each case. In this case the District Court made no findings of any irréparable in jury as defined by our decisions today; therefore, the judgment of the District Court is vacated and the case is remanded for re-consideration in light of Younger v. Harris, ante, p. 37, and Samuels v. Mackell, ante, p. 66. See also Boyle n. Landry, ante, p. 77. It is so ordered. Mr. Justice White concurs in the resuit. [For concurring opinion of Mr. Justice Stewart, see ante, p. 54.] 204 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, concurring in the resuit. My Brother Douglas’ dissenting opinion describes graphically the police conduct upon which appellee rested his allégations of bad faith and harassment. If proved, these allégations would justify fédéral intervention. The mass seizure of some two tons of the issues of the newspaper without a prior judicial détermination of the alleged obscenity of the issues was unconstitutional. Marcus v. Search Warrant, 367 U. S. 717 (1961); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); A Quantity of Books v. Kansas, 378 U. S. 205 (1964). Similarly, the mass seizure of the tools and equipment required to préparé the newspaper—insofar as it disabled appellee from publishing future issues—in-fringed the principle of Near n. Minnesota, 283 U. S. 697 (1931). But these questions are not before us. The three-judge court below remanded to a single judge for détermination ail questions advanced by appellee except the contention that the Texas statute was unconstitutional on its face, and the appellee does not challenge this order of remand here. I, therefore, would reverse the judgment of the District Court, except for paragraph 4, for the reasons stated in my separate opinion in Perez v. Ledesma, ante, p. 93. Mr. Justice Douglas, dissenting. I The two raids in this case were search-and-destroy missions in the Vietnamese sense of the phrase. In each case the police came at night. The first search warrant authorized a search and seizure of “obscene articles and materials, to-wit: pictures, photographs, drawings and obscene literature” concealed at a given DYSON v. STEIN 205 200 Douglas, J., dissenting address. The seizures included : two tons of a newspaper (Dallas Notes), one photograph enlarger, two portable typewriters, two electric typewriters, one caméra, “nu-merous obscene photographs,” and $5.43 in money.1 The second warrant was issued 16 days later, in re-sponse to a claim that marihuana was concealed on the premises. It authorized the officers “to search for and seize the said narcotic drug and dangerous drug in accordance with the law in such cases provided.” Not finding any marihuana on the premises, the sergeant asked instructions from his lieutenant. He was told to seize pornographie literature and any equipment used to make it. He “didn’t know what to seize and what not to seize so [he] just took everything.” “Everything” included a Polaroid caméra, a Kodak Brownie, a Flocon caméra, a Kodak lamp, a floating fixture lamp, a three-drawer desk containing printers’ supplies, a drafting square, a drafting table, two drawing boards, a mailing tube, two téléphonés, a stapler, five cardboard boxes containing documents, one electric typewriter, and one type-writer desk. A poster of Mao Tse-tung, crédit cards, costume jewelry, cans of spices, a brown sweater, and 1 This indiscriminate seizure is hardly surprising since none of the officers knew what to seize, as the questioning of the lieutenant in charge of the raid shows: “Q. What instructions did you give the officers in effecting this search and seizure as to what they were to do ? “A. They were to search for any obscene material they could find. Ail of our officers know what obscene material is. “Q. What is obscene material? “A. Well, I wish you hadn’t ask [sic] that. I take that back. They don’t know, neither do I. “Q. What instructions had you given them in terms of what they were to do ? “A. To search for obscene material and seize it. “Q. What définition, if any, did you give them as to obscene material? “A. I didn’t.” 415-649 0 - 72 - 19 206 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U.B. a statue of a man and woman in an embrace were also seized. Thus the newspaper Dallas Notes, a bi-monthly, was effectively put out of business.2 It would be difficult to find in our books a more law-less search-and-destroy raid, unless it be the one in Kremen n. United States, 353 U. S. 346. If this search-and-destroy technique can be employed against this Dallas newspaper, then it can be done to the New York Times, the Washington Post, the Seattle Post Intelli-gencer, the Yakima Herald-Republic, the Sacramento Bee, and ail the rest of our newspapers. For, as I shall point out, the Texas statute governing “obscenity” 3 is plainly unconstitutional. 2 Appellee Stein has since reached an agreement with the Dallas Police Department by which it returned most of the property to him in return for his execution of an Indemnity and Release Agreement. The binding effect of such an agreement, which required Stein to choose between the return of his property so that he could continue publishing, and assertion of his civil rights under such provisions as 42 U. S. C. § 1983, is not at issue here. The Dallas Police Department still holds “film négatives, eight or ten photographs, one movie advertisement poster, one litho copy of paper, and a représentative number of back issues of paper entitled ‘Dallas Notes’ or ‘Notes from the Underground.’ ” 3 Article 527 defined “obscene” as follows in § 3 : “[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided, further, for the pur-pose of this article, the term ‘contemporary community standards’ shall in no case involve a territory or géographie area less than the State of Texas.” After the three-judge court decision, Art. 527 was amended to define “obscene” as “material (a) the dominant theme of which, taken as a whole, appeals to a prurient interest; (b) which is pat-ently offensive because it affronts contemporary community standards relatmg to the description or représentation of sexual matters; and (c) which is utterly without redeeming social value.” And “prurient interest” was defined as “a shameful or morbid interest in nudity, sex, or excrétion, which goes substantially beyond DYSON v. STEIN 207 200 Douglas, J., dissenting Government certainly has no power to close down newspapers. Even censorship—whether for obscenity, for irresponsible reporting or éditorials, or otherwise— is taboo. As Chief Justice Hughes said in Near v. Minnesota, 283 U. S. 697, decided in 1931: “[T]he administration of government has become more complex, the opportunities for malfeasance and corruption hâve multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officiais and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandai does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subséquent pun-ishment for such abuses as may exist is the ap-propriate remedy, consistent with constitutional privilège.” Id., at 719-720. I agréé with that view. It is said, however, that these issues are not before us as the case has been remanded to a single judge to pass on them. But we deal with plain error, as the state statute is unconstitutional on its face and we should put an end to lawless raids under it.4 customary limits of candor in description or représentation of such matters. If it appears from the character of the material or the circumstances of its dissémination that the subject matter is de-signed for a specially susceptible audience, the appeal of the subject matter shall be judged with reference to such audience.” Tex. Penal Code, Art. 527, §1 (Supp. 1970-1971). 4 The appellee did not appeal from the decision of the District Court to remand the issue of harassment to a one-judge court, apparently since the ruling that the statute was unconstitutional 208 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. II The constitutional mandate that government5 “shall make no law . . . abridging the freedom of speech, or of the press” precludes in my view any form of censorship. Vicions, irresponsible, and depraved as the press often is, the constitutional remedy is not censorship.6 The antidote is éducation, pinning our faith to the Jeffersonian creed that by éducation we may in time become a mature people.7 made such further relief unnecessary, as ail the harassment resulted from the enforcement of the statute. In this Court appellee has argued that his “constitutional rights [are] threatened by the existence of the Texas obscenity statute and the overbearing means chosen to enforce it.” He has raised the issue of harassment here and the documentary evidence in support of his claim is overwhehning. 5 The First Amendment, originally applicable only to the Fédéral Government, was by virtue of the Fourteenth Amendment made applicable to the States in 1931 in Stromberg v. California, 283 U. S. 359. 6 Thomas Jefferson wrote, “I déploré . . . the putrid state into which our newspapers hâve passed, and the malignity, the vulgarity, and mendacious spirit of those who write them. ... It is however an evil for which there is no remedy, our liberty dépends on the freedom of the press, and that cannot be limited without being lost.” Jefferson, Democracy, selected and arranged by S. Padover 150-151 (1939). 7 Mr. Justice Brandeis, concurring in Whitney v. California, 274 U. S. 357,375-376, said: “Those who won our independence . . . believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adéquate protection against the dissémination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the Ameri-can government. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law— DYSON v. STEIN 209 200 Douglas, J., dissenting I hâve set forth my views over and over again as to why the First Amendment should be strictly construed; and they need not be repeated here. It is difficult— indeed impossible—to read the constitutional mandate that government “shall make no law” abridging freedom of the press to mean that government “may make some laws” abridging that freedom. Certainly a strict con-structionist cannot so read it. “The Court says it has been trying to balance the interests of society in protecting itself from the supposed evils of obscene material with the real interest in freedom of expression. There is ample evidence that the clear and definite language of the first amendment was intended to preclude the very problem of balancing assumed by the Court. The first amendment holds that the .interest of society in freedom of expression 8 is more important than the harm that might flow from obscene material. The very interest in protection from injury from obscene material would be better served by allowing each individual to make a free appraisal of pornographie material. A hallmark of an immature and insecure society is the censorship of ideas. Censorship, which insulates ail from what some suppose to be evil, merely magnifies that insecurity. If society does such a poor job of educating itself so that four letter words and explicit pictures are dangerous, the remedy is to improve the educational process, not the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” 8 We deal with a large and considérable problem. There are those who believe that an “ethic of sexuality joined with an ethic of the wholeness of life” (F. Darling, Wilderness and Plenty 75 (1970)) has a close relation not only to population control but to a reverence for both the land and animal life. 210 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. to outlaw certain publications. While the first amendment does not mandate better éducation it does prohibit the censorship of ideas. This use of a balancing test évidences a misconception of the constitutional nature of society. There is nothing to balance. Society’s security flows directly and solely from the freedom and security of each indi-vidual.” 31 Albany L. Rev. 143, 151 (1967). If I am correct in concluding that a State can make “no law” censoring the press because of obscenity, then a publisher threatened by such a law can go into a fédéral court to enjoin state officiais from enforcing the law, as I made clear in my dissent in Younger v. Harris, ante, at 59. The spécial circumstances where such fédéral intervention is permissible are not restricted to bad faith on the part of state officiais or the threat of multiple prosecutions. As Mr. Justice Butler, writing for the Court, said in Terrace v. Thompson, 263 U. S. 197, 214: “Equity jurisdiction will be exercised to enjoin the threatened enforcement of a state law which contra-venes the Fédéral Constitution wherever it is essen-tial in order effectually to protect property rights and the rights of persons against injuries otherwise irrémédiable; and in such a case a person, who as an officer of the State is clothed with the duty of enforcing its laws and who threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties affected, may be enjoined from such action by a fédéral court of equity.” And see Watson v. Buck, 313 U. S. 387, 402. No possible construction of this state law can save it. This is not a situation where mere overbreadth of a state statute may hâve chilling or crippling effects on First Amendment rights. This is a case where Texas has DYSON v. STEIN 211 200 Douglas, J., dissenting entered a field which the Constitution bars ail the States and the Fédéral Government from entering. The Texas obscenity statute, as I view it, meets pre-cisely the hypothetical statute we discussed in Watson v. Buck, 313 U. S. 387, 402: “It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” No clearer case justifying fédéral intervention to pre-vent a state criminal trial can be imagined. No pending prosecutions are sought to be enjoined, only future ones.9 Such an injunction is not impermissible under 28 U. S. C. § 2283. See Dombrowski v. Poster, 380 U. S. 479, 484 n. 2, and my dissent in Younger n. Harris, ante, at 65. Appellee also asked for declaratory relief. If Zwickler n. Koota, 389 U. S. 241, means any-thing, it means that such relief can also be granted. III If a publication deemed “obscene” is not under the umbrella of the First Amendment, then I do not see how it enjoys many constitutional safeguards. That which is out from under the First Amendment would normally be subject to the police power of the States. Yet the Constitution contains no standards or suggestions of standards respecting the vast array of subjects that various vocal groups would like to hâve suppressed— obscenity, sacrilege, un-Americanism, anti-clerical ideas, atheistic or anti-ecclesiastical ideas, Communism, racism, 9 The amended complaint asked for an injunction only against future arrests and prosecutions under the Texas statute, Art. 527, and a déclaration that the statute was unconstitutional. See n. 3, supra. 212 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. and so on. Under the Constitution as written there are no standards of “good” or “bad” for the press. Since there is no constitutional définition of obscenity, the définition must be largely, if not exclusively, for legislative détermination. Absent a controlling constitutional standard, I would think that a législature could treat literature as it treats sewage effluent or infectious disease. That is not a happy prospect, for some would put even the Song of Solomon under the ban. It is, I fear, where we end once we lose our First Amendment moorings. Administrative censorship, however, is one thing. Criminal punishment is quite another. Publishing “obscene” literature cannot, as I view it, be made a crime under our constitutional standards. “Whatever ‘obscenity’ is, it is immeasurable as a crime and delineable only as a sin. As a sin, it is présent only in the minds of some and not in the minds of others. It is entirely too subjective for legal sanction. There are as many different définitions of obscenity as there are men; and they are as unique to the individual as are his dreams.” Note, The Substantive Law of Obscenity: An Adventure in Quicksand, 13 N. Y. L. F. 81, 131 (1967). What appeals to “prurient interests” describes sin to some but not to others and seems to me to be far too vague to pass muster as a criminal, as distinguished from an administrative, statute.10 10 This business of leveling the power of the Fédéral or State Government against a person in a criminal prosecution is an “awesome” power as Mr. Justice Black has stated: “Expérience, and wisdom flowing out of that expérience, long ago led to the belief that agents of government should not be vested with power and discrétion to define and punish as criminal past conduct which had not been clearly defined as a crime in advance.” Ginzburg v. United States, 383 U. S. 463, 477 (dissenting opinion). DYSON v. STEIN 213 200 Douglas, J., dissenting I see no help on the vagueness problem even if the test “utterly without redeeming social importance” were added to the criminal standard, as it was in Jacobellis v. Ohio, 378 U. S. 184, 191.11 That is a measurement which again is wholly subjective. It cannot be related to any-thing but the judge’s or jurors’ sophistication or stage of cultural development. Nor do I think the problem is helped by introducing the concept of “contemporary community standards” whether that refers to the public at large or a local county or town standard. Id., at 193. The two tests—this Court’s and that of Texas—seem to me to be substantially identical. I do not see how either can be held to be constitutional. The standard of guilt is wholly subjective. The jurors can convict or acquit according to their own personal tastes, their cultural standard, their literacy, and their tolérance for opposed ideas. And the same would be true of judges. It means that a book that is hailed as wholesome in one county may be the cause of punishment in another county of the same State. The evidence in obscenity prosecutions is usually expert testimony. Analysts, English literature scholars, and others often hâve helpful and informed views, one way or the other. It seems impossible, if we continue to sanction the use of these vague standards in criminal prosecutions, that verdicts will be rendered which are based on the record and not on the emotional factors reflecting the préjudices of the judge or jurors. Uncertainty, rather than certainty, is the standard. The book, play, poem, or movie is approved or con-demned on the basis of the personal beliefs of the judge or jurors, not on the ban of a statute containing clear and objective standards. 11 See n. 3, supra. 214 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. The concept of “utterly without redeeming social importance” will divide even the experts. It is risky and perilous business to send men to prison on such provoca-tive issues, which confuse people and create irreconcilable différences even among the judges who sentence them or approve their convictions. In these criminal cases dealing with obscenity, we leave people confused and in the dark as to whether they are or are not criminals. Criminal laws must give fair warning; and a person receives no real warning when he crosses the line between the lawful and the unlawful, under the Texas statute 12 or under the standard approved by the Court. Where constitutional rights may be infringed, Winter s v. New York, 333 U. S. 507, should be our guide. There an “obscene” magazine was defined to include those which “massed” stories of bloodshed and lust to incite crimes. Id., at 513. We held that standard to be too vague to satisfy constitutional standards.13 “The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime ‘must be defined with appropriate definite-ness?. . . There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. 12 Even the police hâve no guidance as to the kind of books to be seized. See n. 1, supra. 13 Even where First Amendment or other constitutional rights are not involved, no one may be required “to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U. S. 451, 453. Chief Justice Marshall said in United States v. Wiltberger, 5 Wheat. 76, 105, that in determining the certainty needed in a penal law for its validity the “probability” that the législature may hâve desired to include a species of activity within an Act is not enough. And see United States v. Lâcher, 134 U. S. 624, 628; Pierce v. United States, 314 U. S. 306. DYSON v. STEIN 215 200 Douglas, J., dissenting The vagueness may be from uncertainty in regard to persons within the scope of the act, ... or in regard to the applicable tests to ascertain guilt.” Id„ at 515-516. And see Wright v. Georgia, 373 U. S. 284, 292; Smith n. California, 361 U. S. 147, 151; United States v. Harriss, 347 U. S. 612; Beauharnais n. Illinois, 343 U. S. 250, 264 ; Williams v. United States, 341 U. S. 97; Cantwell v. Connecticut, 310 U. S. 296. My view, however, is that any régime of censorship over literature whether expressed in a criminal statute 14 or an administrative 15 procedure is unconstitutional by reason of the command of the First Amendment. 14 See Mr. Justice Black’s opinion in Kingsley International Pictures Corp. v. Regents, 360 U. S. 684, 690 (concurring). See my opinions in Roth n. United States, 354 U. S. 476, 508 (dissenting) ; Smith v. California, 361 U. S. 147, 167 (concurring) ; Ginzburg v. United States, 383 U. S. 463, 482 (dissenting). 15 See Mr. Justice Black’s separate opinion in A Quantity of Books v. Kansas, 378 U. S. 205, 213. 216 OCTOBER TERM, 1970 Syllabus 401 U. S. BYRNE, DISTRICT ATTORNEY OF SUFFOLK COUNTY, et al. v. KARALEXIS et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS No. 83. Argued April 30, 1970—Reargued November 17, 1970— Decided February 23, 1971 Appellees, indicted for violating the Massachusetts obscenity law as a resuit of exhibiting the film, “I am Curious (Yellow),” brought this action in the fédéral district court for an injunction against the enforcement of the statute and for a déclaration of its un-constitutionality. A three-judge District Court, holding that appellees might be irreparably injured if unable to show the film, granted injunctive relief. Held: The District Court made no find-ing that the threat to appellees’ federally protected rights “[could] not be eliminated by [their] defense against a single criminal prosecution,” to meet the great and immédiate irréparable injury requirement of Younger v. Harris, ante, p. 37, at 46, before a fédéral injunction of state criminal proceedings can properly issue. The judgment is therefore vacated and the case remanded for reconsideration in the light of Younger, supra, and Samuels n. Mackell, ante, p. 66. 306 F. Supp. 1363, vacated and remanded. Robert H. Quinn, Attorney General of Massachusetts, pro se, reargued the cause for appellants. With him on the brief were Joseph J. Hurley, First Assistant Attorney General, John J. Irwin, Jr., Ruth I. Abrams, and Lawrence P. Cohen, Assistant Attorneys General, Garrett H. Byrne, pro se, and Théodore A. Glynn, Jr. Nathan Lewin and Alan M. Dershowitz argued the cause for appellees on the reargument. Edward de Grazia and Mr. Lewin argued the cause for appellees on the original argument. With them on the brief was Herbert S. Swartz. BYRNE v. KARALEXIS 217 216 Per Curiam Peter L. Strauss argued the cause for the United States on the reargument as amicus curiae urging reversai. Francis X. Beytagh, Jr., argued the cause for the United States on the original argument. With them on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Roger A. Pauley. Briefs of amici curiae urging affirmance were filed by Stanley Fleishman and Sam Rosenwein for National General Corp. et al., and by Thomas R. Asher, Michael Schneiderman, and Melvin L. Wulj for the American Civil Liberties Union et al. Per Curiam. This is an appeal from the order of a three-judge court granting a preliminary injunction against any civil or criminal proceedings in state courts against the appellees. Appellant Byrne is the district attorney of Suffolk County, Massachusetts. The appellees own and operate a motion picture theater in Boston. As a resuit of exhib-iting the film entitled am Curious (Yellow)” at their theater, appellees were charged by District Attorney Byrne with violating Massachusetts General Laws, Chapter 272, § 28A, which prohibits the possession of obscene films for the purpose of exhibition.1 After the filing of the original state indictments against them appellees brought the présent action in fédéral 1 Mass. Gen. Laws, c. 272, §28A, provides: “Importing, printing, distributing or possessing obscene things. “Whoever imports, prints, publishes, sells or distributes a pamphlet, ballad, printed paper, phonographic record, or other thing which is obscene, indécent or impure, or an obscene, indécent or impure print, picture, figure, image or description, or buys, procures, receives or has in his possession any such pamphlet, ballad, printed paper, phonographic record, obscene, indécent or impure print, picture, figure, image or other thing, for the purpose of sale, exhibition, loan or circulation, shall be punished . . . 218 OCTOBER TERM, 1970 Per Curiam 401 U. S. court.2 They sought an injunction against both pending and future prosecutions under the Massachusetts obscenity law, and a déclaration that the state obscenity law was unconstitutional on its face and as applied.3 The 2 While the fédéral action was pending those indictments were dismissed for defects under Massachusetts law and new state indictments were returned. Under these circumstances we treat the state prosecution as pending at the time the fédéral suit was initiated. 3 The appellees’ prayer for relief, as amended, read as follows: “Wherefore, plaintiffs pray: “(1) That a preliminary injunction and a permanent injunction be granted prohibiting the défendant, his agents or servants, from any further seizures of prints of the motion picture T Am Curious (Yellow)’ without a prior adversary proceeding in an appropriate court in Massachusetts as to the alleged obscenity of the motion picture. “(2) That the Court order the défendant to return to the plaintiffs herein the print of the motion picture 'I Am Curious (Yellow)’ seized by the défendant, his agents or servants, on Thursday, May 29, 1969; that the Court order the suppression of its evidence in the cases now pending against the plaintiffs herein in Suffolk Superior Court as aforesaid; both for the reason that there was no prior adversary proceeding before seizure of the print, which was then exhibited to the Grand Jury and the basis upon which indictments were returned. “(3) That this Court order a preliminary injunction, and that following appropriate hearing, a permanent injunction, against the défendant, his agents or servants, from any further continuation of the prosecution of the plaintiffs herein in the said six actions now pending in the Suffolk Superior Court (Docket numbers 42587, through 42592) until such time as the said Sections 32 and 28A of Massachusetts General Laws, Chapter 272, hâve been appropriately altered and amended. “(4) Your plaintiffs further pray that an injunction issue re-straining this prosecution of the motion picture T Am Curious (Yellow),’ or any further prosecution in this jurisdiction of the motion picture T Am Curious (Yellow)’ on the grounds that it is ‘allegedly obscene.’ Plaintiffs contend and pray herein on the basis that any such prosecution is ‘without hope of success.’ . . . “(5) That this Court déclaré and say that Section 28A of Chapter 272 of the Massachusetts General Laws is unconstitutional BYRNE v. KARALEXIS 219 216 Per Curiam three-judge District Court held that appellees had a probability of success in having the statute declared unconstitutional, that abstention would be improper, and that appellees might suffer irréparable in jury .if they were unable to show the film. The three-judge court, one judge dissenting, therefore granted a preliminary injunction, forbidding the initiation of any future prosecutions or the execution of the sentence imposed in the state proceedings then pending. 306 F. Supp. 1363 (1969). The district attorney appealed. We granted a stay of the district court order, 396 U. S. 976 (1969), and subsequently noted probable jurisdiction, 397 U. S. 985 (1970). of [sic] its face, and unconstitutional in its application to the plaintiffs herein, ail in accordance with Title 28 U. S. C., Section 2201. “(6) That this Court déclaré and say that the motion picture T Am Curious (Yellow)’ is not obscene within the constitutional définition of obscenity as set forth by the United States Suprême Court in Redrup v. New York, 386 U. S. 767 (1967). . . . “(7) That this Court restrain any future prosecutions of the motion picture T Am Curious (Yellow)’ on the grounds that it is ‘allegedly obscene’ within the terms of Section 28A of Chapter 272, for the reason that there is no way that any future défendant in such prosecution could ‘know the work to be obscene.’ “(8) That any further prosecutions of the motion picture T Am Curious (Yellow)’ on the grounds that it is ‘allegedly obscene’ and therefore violative of Section 28A of Chapter 272 of Massachusetts General Laws be restrained until such time as the Massachusetts courts afîirm that the standards for finding a work obscene within the constitutional définition of obscenity as set forth in Redrup v. New York, supra, are that—(1) That the work was being shown to those under the âge of 18; (2) Or that the work was an invasion of privacy; or (3) That the work was being advertised in a ‘pandering’ manner. “(9) That this Court issue an injunction restraining any further prosecutions of the plaintiffs herein for the showing of the motion picture ‘I Am Curious (Yellow)’ on the grounds that any prosecution is ‘without hope of success’ .... “(10) For such other and further relief as this Court shall deem essential or proper in accordance with Equity and Law.” 220 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. In discussing the subject of irréparable in jury, the court said: “We do not agréé with defendant’s contention that there is no indication of irréparable in jury. Even if money damages could be thought in some cases adéquate compensation for delay, this défendant will presumably be immune. We agréé with plaintiffs that the box office receipts, if there is a substantial delay, can be expected to be smaller. A moving picture may well be a diminishing asset. It has been said, also, that in assessing in jury the chilling effect upon the freedom of expression of others is to be considered. See Dombrowski v. Pfister, 1965, 380 U. S. 479, 486-489.” 306 F. Supp., at 1367. There was, however, no finding by the District Court that the threat to appellees’ federally protected rights is “one that cannot be eliminated by [their] defense against a single criminal prosecution.” Younger v. Harris, ante, p. 37, at 46. Because the District Court, in considering the propriety of injunctive and declaratory relief in this case, was without the guidance provided today by our decisions in Younger v. Harris, supra, and Samuels v. Mackell, ante, p. 66, we vacate the judgment below and remand for reconsideration in light of those decisions. T . 7 Itzs so ordered. Mr. Justice Douglas took no part in the considération or decision of this appeal. [For concurring opinion of Mr. Justice Stewart, see ante, p. 54.] Mr. Justice Brennan, with whom Mr. Justice White and Mr. Justice Marshall join, dissenting. The injunction appealed from issued December 6, 1969, after appellees’ convictions in state court on November 12, BYRNE v. KARALEXIS 221 216 Brennan, J., dissenting 1969, of exhibiting an obscene film in violation of state law. In the absence of any showing of bad faith or har-assment, appellees were therefore obliged to pursue their constitutional defenses on appeal from the convictions to the state appellate court, and the Fédéral District Court erred in enjoining appellants from interfering with future showings of the film. Freedman v. Maryland, 380 U. S. 51, 60 (1965), limited to préservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of prompt, final, judicial détermination of the question of the film’s alleged obscenity. See also Lee Art Theater v. Virginia, 392 U. S. 636 (1968). But there was no interférence from July through November; appellant Byrne honored a stipulation made July 15 in fédéral court not to seize the film or interfère with its exhibition pending the outcome of the trial. Byrne withdrew from the stipulation and threatened to move against further exhibition of the film only after the convictions were ob-tained. Clearly, he was not required to continue to stay his hand pending the outcome of appeals from the convictions; Freedman was satisfied by a “prompt judicial decision by the trial court,” Teitel Film Corp. v. Cusack, 390 U. S. 139, 142 (1968) (emphasis supplied) ; Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676, 690 n. 22 (1968). Rather than remand I would therefore reverse the judgment of the District Court for the reasons stated in my opinion in Perez v. Ledesma, ante, p. 93. 415-649 0 - 72 - 20 222 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. HARRIS v. NEW YORK CERTIORARI TO THE COURT OF APPEALS OF NEW YORK No. 206. Argued December 17, 1970—Decided February 24, 1971 Statement inadmissible against a défendant in the prosecution’s case in chief because of lack of the procédural safeguards required by Miranda N. Arizona, 384 U. S. 436, may, if its trustworthiness satisfies legal standards, be used for impeachment purposes to attack the credibility of défendant’s trial testimony. See W aider v. United States, 347 U. S. 62. Pp. 223-226. 25 N. Y. 2d 175,250 N. E. 2d 349, affirmed. 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. Joël Martin Aurnou argued the cause and filed a brief for petitioner. James J. Duggan argued the cause for respondent. With him on the brief was Cari A. Vergari. 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. Mr. Chief Justice Burger delivered the opinion of the Court. 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. The State of New York charged petitioner in a two-count indictment with twice selling heroin to an under- HARRIS v. NEW YORK 223 222 Opinion of the Court cover police officer. At a subséquent 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. Petitioner took the stand in his own defense. He ad-mitted 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. 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 prose-cutor. 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. The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be con-sidered 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). At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, 1 No agreement was reached as to the first count. That count was later dropped by the State. 224 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. 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. 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 ail 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 effec-tively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for ail purposes, pro-vided of course that the trustworthiness of the evidence satisfies legal standards. In W aider 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. “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 de-fendant can turn the illégal 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. “[T]here is hardly justification for letting the défendant affirmatively resort to perjurious testi-mony in reliance on the Government’s disability to challenge his credibility.” 347 U. S., at 65. HARRIS v. NEW YORK 225 222 Opinion of the Court It is true that Walder was impeached as to collateral matters included in his direct examination, whereas peti-tioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a différence in principle that warrants a resuit 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 spéculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufîicient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief. Every criminal défendant is privileged to testify in his own defense, or to refuse to do so. But that privilège cannot be construed to include the right to commit per-jury. See United States v. Knox, 396 U. S. 77 (1969); cf. Dennis v. United States, 384 U. S. 855 (1966). Hav-ing 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 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 hâve 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 voluntari-ness 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). 226 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. 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. The shield provided by Miranda cannot be perverted into a license to use per jury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credi-bility was appropriately impeached by use of his earlier conflicting statements. Affirmed. Mr. Justice Black dissents. Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting. 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. 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. HARRIS v. NEW YORK 227 222 Brennan, J., dissenting 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 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. 1 The trial transcript shows that petitioner testified that he re-membered 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.” 228 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. The Court held that on facts where “the défendant went beyond a mere déniai 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 “déniai 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: “Of course, the Constitution guarantees a défendant the fullest opportunity to meet the accusation against him. He must be free to deny ail the éléments 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 avail-able for its case in chief.” 347 U. S., at 65. From this récital 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 éléments 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 interfère with his freedom to deny ail éléments 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. HARRIS v. NEW YORK 229 222 Brennan, J., dissenting While Walder did not identify the constitutional spécifies that guarantee “a défendant the fullest oppor-tunity to meet the accusation against him . . . [and permit him to] be free to deny ail the éléments of the case against him,” in my view Miranda v. Arizona, 384 U. S. 436 (1966), identified the Fifth Amendment’s privilège against self-incrimination as one of those spécifies.2 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 rôle 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 agréé 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 hâve 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, hâve not even attempted to assume that démonstration (Chapman n. California, supra). Surely it cannot be said with any cer-tainty that the improper use of défendant’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 appar-ently 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 défendant could not hâve been damaged severely by use of the inconsistent statement in a case which, in the final analysis, pitted his word against the ofiicer’s. The judgment should be re-versed 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 im-peachment purposes, 18 N. Y. 2d, at 323, 221 N. E. 2d, at 542. 230 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. That privilège 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 privilège, 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 imper-missible because it “fetters” that choice—“[i]t cuts down on the privilège 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 privilège by making its assertion costly.” Ibid. Thus, the accused is denied an “unfettered” choice when the decision whether to take the stand is bur-dened by the risk that an illegally obtained prior statement may be introduced to impeach his direct testi-mony denying complicity in the crime charged against him.3 We settled this proposition in Miranda where we said: “The privilège against self-incrimination protects the individual from being compelled to incriminate himself in any manner .... [S]tatements merely intended to be exculpatory by the défendant are often used to impeach his testimony at trial . . . . These statements are incriminating in any meaning-ful sense of the word and may not be used without the full warnings and effective waiver required for 3 It is therefore unnecessary for me to consider petitioner’s argument that Miranda has overruled the narrow exception of W aider admitting impeaching evidence on collateral matters. HARRIS v. NEW YORK 231 222 Brennan, J., dissenting any other statement.” 384 U. S., at 476-477 (em-phasis added). This language completely disposes of any distinction between statements used on direct as opposed to cross-examination.4 “An incriminating statement is as in-criminating 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). The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary System. The “essential main-stay” of that System, Miranda v. Arizona, 384 U. S., at 460, is the privilège against self-incrimination, which for 4 Six fédéral courts of appeals and appellate courts of 14 States hâve reached the same resuit. 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 n. 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 (Fia. 1968) ; People v. Luna, 37 111. 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 (Texï Cr. App. 1969) ; Cardwell n. 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 hâve 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). 232 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. 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 privilège as one which groped for the proper scope of governmental power over the citizen. . . . Ail these policies point to one overriding thought: the constitutional foundation underlying the privilège 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 défendant 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. BOILERMAKERS v. HARDEMAN 233 Syllabus INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACK-SMITHS, FORGERS AND HELPERS, AFL-CIO v. HARDEMAN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 123. Argued December 16, 1970—Decided February 24, 1971 Respondent, who was a member of petitioner union, assaulted the business manager of his local for allegedly failing to refer him for a job, and was tried for this conduct by the union on charges of (1) creating dissension and working against the interest and har-mony of the local, which carried a penalty of expulsion, and (2) threatening and using force to restrain an officer from discharg-ing the duties of his union office, punishable “as warranted by the offense.” He was found “guilty as charged” and expelled for an indefinite period. He later brought suit for damages alleging that petitioner violated §101 (a)(5) of the Labor-Management Report -ing and Disclosure Act by denying him a full and fair hearing in the disciplinary proceedings. The District Judge found that there was no transcript evidence to support the charge of creating dissension, and since the union tribunal had returned only a general verdict, held that respondent was deprived of the statutory “full and fair hearing.” The Court of Appeals affirmed. Certiorari was granted to consider whether the subject matter was pre-empted because exclusively within the compétence of the National Labor Relations Board, or, if not, whether the courts below had applied the proper standard of review. Held: 1. This action was within the compétence of the District Court, as the issues here are whether respondent was denied rights guar-anteed him by § 101 (a) (5), and, if so, his conséquent entitlement, pursuant to the fédéral statute, to damages for that déniai, questions that are irrelevant to the legality of conduct under the National Labor Relations Act. Pp. 237-241. 2. Section 101 (a) (5) does not empower courts to détermine what conduct may warrant disciplinary action by a union against its members. Pp. 242-245. 3. The statutory “full and fair hearing” requires that the charg-ing party provide some evidence at the hearing to support the 234 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. charges, and here there was sufficient evidence to support the finding that respondent assaulted the business manager as charged. Pp. 245-247. 420 F. 2d 485, reversed. Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, Stewart, White, Marshall, and Blackmun, JJ., joined. White, J., filed a concurring opinion, post, p. 247. Douglas, J., filed a dissenting opinion, post, p. 247. Louis Sherman argued the cause for petitioner. With him on the brief were Elihu I. Leifer and Bernard Cushman. Robert E. McDonald, Jr., argued the cause and filed a brief for respondent. J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Fédération of Labor and Congress of Industrial Organizations, AFLr-CIO, as amicus curiae urging reversai. Mr. Justice Brennan delivered the opinion of the Court. Section 102 of the Labor-Management Reporting and Disclosure Act (hereafter LMRDA) provides that a union member who charges that his union violated his rights under Title I of the Act may bring a civil action against the union in a district court of the United States for appropriate relief.1 Respondent was expelled from 1 Section 102 of the Act, 73 Stat. 523, 29 U. S. C. § 412, provides: “Any person whose rights secured by the provisions of this title hâve been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.” BOILERMAKERS v. HARDEMAN 235 233 Opinion of the Court membership in petitioner union and brought this action under § 102 in the District Court for the Southern District of Alabama. He alleged that in expelling him the petitioner violated § 101 (a) (5) of the Act, 73 Stat. 523, 29 U. S. C. § 411 (a) (5) which provides: “No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written spécifie charges; (B) given a reasonable time to préparé his defense; (C) afforded a full and fair hearing.” A jury awarded respondent damages of $152,150. The Court of Appeals for the Fifth Circuit affirmed. 420 F. 2d 485 (1969).2 We granted certiorari limited to the questions whether the subject matter of the suit was pre-empted because exclusively within the compétence of the National Labor Relations Board and, if not pre-empted, whether the courts below had applied the proper standard of review to the union proceedings, 398 U. S. 926 (1970). We reverse. The case arises out of events in the early part of October 1960. Respondent, George Hardeman, is a boiler-maker. He was then a member of petitioner’s Local Lodge 112. On October 3, he went to the union hiring hall to see Herman Wise, business manager of the Local Lodge and the official responsible for referring workmen for jobs. Hardeman had talked to a friend of his, an employer who had promised to ask for him by name for a job in the vicinity. He sought assurance from Wise that he would be referred for the job. When Wise refused to make a definite commitment, Hardeman threatened violence if no work was fortheoming in the next few days. On October 4, Hardeman returned to the hiring hall 2 The affirmance was on the basis of Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968). 236 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. and waited for a referral. None was forthcoming. The next day, in his words, he “went to the hall . . . and waited from the time the hall opened until we had the trouble. I tried to make up my mind what to do, whether to sue the Local or Wise or beat hell out of Wise, and then I made up my mind.” When Wise came out of his office to go to a local jobsite, as required by his duties as business manager, Hardeman handed him a copy of a telegram asking for Hardeman by name. As Wise was reading the telegram, Hardeman began punching him in the face. Hardeman was tried for this conduct on charges of cre-ating dissension and working against the interest and harmony of the Local Lodge,3 and of threatening and using force to restrain an officer of the Local Lodge from properly discharging the duties of his office.4 The trial 3 Article XIII, § 1, of the Subordinate Lodge Constitution then in force provided: “Any member who endeavors to create dissension among the members; or who works against the interest and harmony of the International Brotherhood or of any District or Subordinate Lodge; who advocates or encourages a division of the funds, or the dissolution of any District or Subordinate Lodge, or the séparation of any District or Subordinate Lodge from the International Brotherhood; who supports or becomes a member of any dual or subversive organization which shall be hostile to the International Brotherhood or to any of its Subordinate Lodges, or which is antagonistic to the principles and purposes of the International Brotherhood, shall upon conviction thereof be punished by expulsion from the International Brotherhood.” 4 Article XII, § 1, of the Subordinate Lodge By-Laws then in force provided that: “It shall be a violation of these By-Laws for any member through the use of force or violence or the threat of the use of force or violence to restrain, coerce or intimidate, or attempt to restrain, coerce or intimidate any official of this International Brotherhood or Subordinate Lodge to prevent or attempt to prevent him from properly discharging the duties of his office.” Violators of Art. XII are to “be punished as warranted by the offense.” BOILERMAKERS v. HARDEMAN 237 233 Opinion of the Court committee found him “guilty as charged,” and the Local Lodge sustained the finding and voted his expulsion for an indefinite period. Internai union review of this action, instituted by Hardeman, modified neither the verdict nor the penalty. Five years later, Hardeman brought this suit alleging that petitioner violated § 101 (a) (5) by denying him a full and fair hearing in the union disci-plinary proceedings. I We consider first the union’s claim that the subject matter of this lawsuit is, in the first instance, within the exclusive compétence of the National Labor Relations Board. The union argues that the gravamen of Harde-man’s complaint—which did not seek reinstatement, but only damages for wrongful expulsion, consisting of loss of income, loss of pension and Insurance rights, mental anguish and punitive damages—is discrimination against him in job referrais; that any such conduct on the part of the union is at the very least arguably an unfair labor practice under §§ 8 (b)(l)(A) and 8 (b)(2) of the National Labor Relations Act, 61 Stat. 141, as amended, 29 U. S. C. §§ 158 (b)(1)(A), 158 (b)(2); and that in such circumstances, “the fédéral courts must defer to the exclusive compétence of the National Labor Relations Board if the danger of . . . interférence with national policy is to be averted.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959); see Local 100, Journeymen v. Borden, 373 U. S. 690 (1963). We think the union’s argument is misdirected. Harde-man’s complaint alleged that his expulsion was unlawful under §101 (a) (5), and sought compensation for the conséquences of the claimed wrongful expulsion. The critical issue presented by Hardeman’s complaint was whether the union disciplinary proceedings had denied him a full and fair hearing within the meaning of § 101 415-649 0 - 72 - 21 238 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. (a) (5) (C).5 Unless he could establish this claim, Harde-man would be out of court. We hold that this claim was not within the exclusive compétence of the National Labor Relations Board. “ ‘The doctrine of primary jurisdiction . . . ap-plies where a claim is originally cognizable in the courts, and cornes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, hâve been placed within the spécial compétence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.’ United States v. Western Pac. R. Co., 352 U. S. 59, 63-64. The doctrine is based on the principle ‘that in cases raising issues of fact not within the conventional expérience of judges or cases requiring the exercise of administrative discrétion, agencies created by Congress for regulating the subject matter should not be passed over,’ Far East Conférence v. United States, 342 U. S. 570, 574, and ‘requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictâtes preliminary resort to the agency which ad-ministers the scheme,’ United States v. Philadelphia Nat. Bank, 374 U. S. 321, 353.” Local 189, Amal-gamated Méat Cutters v. Jewel Tea Co., 381 U. S. 676, 684-685 (1965) (opinion of White, J., announc-ing judgment). Those factors suggesting that resort must be had to the administrative process are absent from the présent case. The fairness of an internai union disciplinary proceeding is hardly a question beyond “the conventional ex- 5 Hardeman’s complaint did not claim that the charges were insufficiently spécifie, or that he did not hâve adéquate time to préparé his defense in the union proceedings. BOILERMAKERS v. HARDEMAN 239 233 Opinion of the Court perience of judges,” nor can it be said to raise issues “within the spécial compétence” of the NLRB. See NLRB n. Allis-Chalmers Mjg. Co., 388 U. S. 175, 181, 193-194 (1967). As we noted in that case, the 86th Congress which enacted §101 (a) (5) was “plainly of the view” that the protections embodied therein were new material in the body of fédéral labor law. 388 U. S., at 194. And that same Congress explicitly referred daims under § 101 (a) (5), not to the NLRB, but to the fédéral district courts. This is made explicit in the opening sentence of § 102: “Any person whose rights secured by the provisions of this title hâve been in-fringed by any violation of this titlè may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.” Of course, “(t]he purpose of Congress is the ultimate touchstone.” Retail Clerks Local 1625 v. Schermerhorn, 375 U. S. 96, 103 (1963). And in § 102 Congress has clearly indicated a purpose to refer daims regarding violation of § 101 (a) (5) to the district courts. The union argues that Hardeman’s suit should never-theless hâve been dismissed because he did not seek an injunction restoring him to membership, and because he did seek damages for loss of employment said to be the conséquence of his expulsion from the union. Taken together, these factors are said to shift the primary focus of the action from a review of Hardeman’s expulsion to a review of alleged union discrimination against him in job referrals. Since this is a matter normally within the exclusive compétence of the NLRB, see Local 100, Jour-neymen v. Borden, 373 U. S., at 695-696, the union argues that Hardeman’s suit was beyond the compétence of the district court. The argument has no merit. To begin with, the language of § 102 does not appear to make the availability of damages turn upon whether an injunction is requested 240 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. as well. If anything, § 102 contemplâtes that damages will be the usual, and injunctions the extraordinary form of relief. Requiring that injunctive relief be sought as a precondition to damages would hâve little effect other than to force plaintiffs, as a matter of course, to add a few words to their complaints seeking an undesired injunction. We see no reason to import into § 102 so trivial a requirement. Nor are our prior cases authority for such a resuit. We hâve repeatedly held, of course, that state law may not regulate conduct either protected or prohibited by the National Labor Relations Act. Local 100, Journeymen v. Borden, supra; San Diego Building Trades Council n. Garmon, 359 U. S., at 244; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 480-481 (1955) ; Garner v. Teamsters Union, 346 U. S. 485, 490-491 (1953). Where it has not been clear whether particular conduct is protected, prohibited, or left to state régulation by that Act, we hâve likewise required courts to stay their hand, for “courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these déterminations be left in the first instance to the National Labor Relations Board.” Building Trades Council n. Garmon, supra, at 244-245. Nor may courts intervene in such matters even to apply the National Labor Relations Act, except by the normal mechanism of review of actions of the NLRB. For recognizing that “[a] multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or con-flicting adjudications as are different rules of substantive law,” Garner n. Teamsters Union, supra, at 490-491, Congress confided to the NLRB the primary power of interprétation and application of the Act. See Guss v. Utah Labor Relations Board, 353 U. S. 1 (1957). The présent case, however, implicates none of the principles discussed above. There is no attempt, in this BOILERMAKERS v. HARDEMAN 241 233 Opinion of the Court lawsuit, to apply state law to matters pre-empted by fédéral authority. Nor is there an attempt to apply fédéral law of general application, which is limited in the par-ticular circumstances by the National Labor Relations Act. Nor is there an attempt to hâve the District Court enforce the provisions of the National Labor Relations Act itself, without guidance from the NLRB. As we hâve said, the critical question in this action is whether Hardeman was afforded the rights guaranteed him by § 101 (a) (5) of the LMRDA. If he was denied them, Congress has said that he is entitled to damages for the conséquences of that déniai. Since these questions are irrelevant to the legality of conduct under the National Labor Relations Act, there is no danger of conflicting interprétation of its provisions. And since the law applied is fédéral law explicitly made applicable to such circumstances by Congress, there is no danger that state law may corne in through the back door to regulate conduct that has been removed by Congress from state control. Accordingly, this action was within the compétence of the District Court.6 II Two charges were brought against Hardeman in the union disciplinary proceedings. He was charged with violation of Art. XIII, § 1, of the Subordinate Lodge Constitution, which forbids attempting to create dissension or working against the interest and harmony of the union, and carries a penalty of expulsion.7 He was also charged with violation of Art. XII. § 1, of the Subordinate Lodge By-Laws, which forbids the threat 6 See Boilermakers v. Braswell, 388 F. 2d, at 195-197. Accord, Rekant v. Shochtay-Gasos Local ^6, 320 F. 2d 271, 273-275 (CA3 1963); Parks v. Electrical Workers, 314 F. 2d 886, 922-923 (CA4 1963) ; Addison v. Machinists, 300 F. 2d 863 (CA9 1962) ; Machinists v. King, 335 F. 2d 340, 346-347 (CA9 1964). 7 See n. 3, supra. 242 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. or use of force against any officer of the union in order to prevent him from properly discharging the duties of his office; violation may be punished “as warranted by the offense.” 8 Hardeman’s conviction on both charges was upheld in internai union procedures for review. The trial judge instructed the jury that “whether or not he [respondent] was rightfully or wrongfully dis-charged or expelled is a pure question of law for me to détermine.” He assumed, but did not décidé, that the transcript of the union disciplinary hearing contained evidence adéquate to support conviction of violating Art. XII. He held, however, that there was no evidence at ail in the transcript of the union disciplinary proceedings to support the charge of violating Art. XIII. This holding appears to hâve been based on the Fifth Circuit’s decision in Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968). There the Court of Appeals for the Fifth Circuit had reasoned that “penal provisions in union constitutions must be strictly construed,”9 and that as so construed Art. XIII was directed only to “threats to the union as an organization and to the effective carrying out of the union’s aims,” not to merely Personal altercations. 388 F. 2d, at 199. Since the union tribunal had returned only a general verdict, and since one of the charges was thought to be supported by no evidence whatsoever, the trial judge held that Hardeman had been deprived of the full and fair hearing guar-anteed by § 101 (a) (5).10 The Court of Appeals affirmed, simply citing Braswell. 420 F. 2d 485 (CA5 1969). We find nothing in either the language or the legislative history of § 101 (a) (5) that could justify such a sub- 8 See n. 4, supra. 9 388 F. 2d, at 198, quoting Allen v. Theatrical Employées, 338 F. 2d 309, 316 (CA5 1964). 10 This reasoning was noted but not specifically endorsed in Braswell, 388 F. 2d, at 198. BOILERMAKERS v. HARDEMAN 243 233 Opinion of the Court stitution of judicial for union authority to interpret the union’s régulations in order to détermine the scope of offenses warranting discipline of union members. Section 101 (a) (5) began life as a floor amendment to S. 1555, the Kennedy-Ervin Bill, in the 86th Congress. As proposed by Senator McClellan, and as adopted by the Senate on April 22, 1959, the amendment would hâve forbidden discipline of union members “except for breach of a published written rule of [the union].” 105 Cong. Rec. 6476, 6492-6493. But this language did not long survive. Two days later, a substitute amendment was offered by Senator Kuchel, who explained that further study of the McClellan amendment had raised “some rather vexing questions.” Id., at 6720. The Kuchel substitute, adopted the following day, deleted the requirement that charges be based upon a previously published, written union rule; it transformed Senator McClellan’s amendment, in relevant part, into the présent language of § 101 (a) (5). Id., at 6720, 6727. As so amended, S. 1555 passed the Senate on April 25. Id., at 6745. Identical language was adopted by the House, id., at 15884, 15891, and appears in the statute as finally enacted. The Congress understood that Senator Kuchel’s amendment was intended to make substantive changes in Senator McClellan’s proposai. Senator Kennedy had specif-ically objected to the McClellan amendment because “In the case of . . . the . . . official who bribed a judge, unless there were a spécifie prohibition against bribery of judicial officers written into the constitution of the union, then no union could take disciplinary action against [an] officer or member guilty of bribery. “It seems to me that we can trust union officers to run their affairs better than that.” Id., at 6491. 244 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Senator Kuchel described his substitute as merely pro-viding “the usual reasonable constitutional basis” for union disciplinary proceedings: union members were to hâve “constitutionally reasonable notice and a reasonable hearing.” Id., at 6720. After the Kuchel amendment passed the Senate, Senator Goldwater explained it to the House Committee on Labor and Education as follows: “[T]he bill of rights in the Senate bill requires that the union member be served with written spécifie charges prior to any disciplinary proceedings but it does not require that these charges, to be valid, must be based on activity that the union had proscribed prior to the union member having engaged in such activity.” Labor-Management Reform Législation, Hearings before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., Ist Sess., pt. 4, p. 1595 (1959). And Senator McClellan’s testimony was to the same effect. Id., pt. 5, pp. 2235-2236, 2251, 2285. We think that this is sufficient to indicate that § 101 (a) (5) was not intended to authorize courts to détermine the scope of offenses for which a union may discipline its members.11 And if a union may discipline its members for offenses not proscribed by written rules at ail, it is surely a futile exercise for a court to construe the written 11 State law, in many circumstances, may go further. See Sum-mers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L. J. 175 (1960). But Congress, which preserved state law remedies by § 103 of the LMRDA, 29 U. S. C. § 413, was well aware that even the broad language of Senator McClellan’s original proposai was more limited in scope than much state law. See 105 Cong. Rec. 6481-6489. BOILERMAKERS v. HARDEMAN 245 233 Opinion of the Court rules in order to détermine whether particular conduct falls within or without their scope. Of course, § 101 (a) (5) (A) requires that a member subject to discipline be “served with written spécifie charges.” These charges must be, in Senator McClellan’s words, “spécifie enough to inform the accused member of the offense that he has allegedly committed.” 12 Where, as here, the union’s charges make reference to spécifie written provisions, § 101 (a) (5) (A) obviously empowers the fédéral courts to examine those provisions and détermine whether the union member had been misled or otherwise prejudiced in the présentation of his defense. But it gives courts no warrant to scrutinize the union régulations in order to détermine whether particular conduct may be punished at ail. Respondent does not suggest, and we cannot discern, any possibility of préjudice in the présent case. Although the notice of charges with which he was served does not appear as such in the record, the transcript of the union hearing indicates that the notice did not confine itself to a mere statement or citation of the written régulations that Hardeman was said to hâve violated: the notice appears to hâve contained a detailed statement of the facts relating to the fight that formed the basis for the disciplinary action.13 Section 101 (a) (5) requires no more. III There remains only the question whether the evidence in the union disciplinary proceeding was sufficient to support the finding of guilt. Section 101 (a)(5)(C) of the 12 Labor-Management Reform Législation, Hearings before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., Ist Sess., pt. 5, p. 2285 (1959). 13 See tr. of union disciplinary hearing 26-28, 76. 246 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. LMRDA guarantees union members a “full and fair” disciplinary hearing, and the parties and the lower fédéral courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made.14 This is the proper standard of judicial review. We hâve re-peatedly held that conviction on charges unsupported by any evidence is a déniai of due process, Thompson n. Louisville, 362 U. S. 199, 206 (1960); Schware v. Board of Bar Examiners, 353 U. S. 232, 246-247 (1957); Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106 (1927); Tisi v. Tod, 264 U. S. 131, 133-134 (1924); and we feel that § 101 (a)(5)(C) may fairly be said to import a similar requirement into union disciplinary proceedings. Senator Kuchel, who first introduced the provision, characterized it on the Senate floor as requiring the “usual reasonable constitutional basis” for disciplinary action, 105 Cong. Rec. 6720, and any lesser standard would make useless § 101 (a)(5)(A)’s requirement of written, spécifie charges. A stricter standard, on the other hand, would be inconsistent with the apparent con-gressional intent to allow unions to govern their own affairs, and would require courts to judge the credibility of witnesses on the basis of what would be at best a cold record.15 14 Fars v. Boilermakers, 320 F. 2d 576 (CA2 1963); Rosen v. Pointers, 198 F. Supp. 46 (SDNY 1961), appeal dismissed, 326 F. 2d 400 (CA2 1964) ; Lewis v. American Fédération of State Employées, 407 F. 2d 1185 (CA3 1969) ; Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968) ; Burke v. Boilermakers, 417 F. 2d 1063 (CA9 1969), affirming 302 F. Supp. 1345 (ND Cal. 1967). 15 Although a transcript was made of the union proceedings in the présent case, we hâve no reason to believe that this is a universal practice. BOILERMAKERS v. HARDEMAN 247 233 Douglas, J., dissenting Applying this standard to the présent case, we think there is no question that the charges were adequately sup-ported. Respondent was charged with having attacked Wise without warning, and with continuing to beat him for some time. Wise so testified at the disciplinary hear-ing, and his testimony was fully corroborated by one other witness to the altercation. Even Hardeman, although he claimed he was thereafter held and beaten, admitted having struck the first blow. On such a record there is no question but that the charges were supported by “some evidence.” Reversed. Mr. Justice White, concurring. The Court accurately states the holdings in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), and like cases. But since the case before us “implicates none of the principles,” ante, at 240, announced in those cases, neither is their continuing validity in their full sweep reaffirmed by today’s opinion. On this basis, I join the Court’s opinion. I add an additional note. As the Court says, Harde-man’s conviction on both charges against him was up-held. Expulsion was warranted on either count. The principle of Stromberg v. California, 283 U. S. 359 (1931), has no application in this situation. Turner n. United States, 396 U. S. 398, 420 (1970); Barenblatt v. United States, 360 U. S. 109, 115 (1959); Claassen v. United States, 142 U. S. 140, 146-147 (1891); see also cases cited in Street v. New York, 394 U. S. 576, 613 n. 2 (1969) (White, J., dissenting). Mr. Justice Douglas, dissenting. Section 102 of the Landrum-Griffin Act, 73 Stat. 523, 29 U. S. C. § 412, gives a member of a union the right 248 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. of civil redress in a fédéral district court against his union for infringement of his rights secured by the Act1 at the same time § 103, 29 U. S. C. § 413, reserves to members any remedies they may hâve “under any State or Fédéral law or before any court or other tribunal, or under the constitution and bylaws” of their unions. Moreover, § 101 (a) (5), 29 U. S. C. §411 (a) (5),2 provides that, except for nonpayment of dues, no member of a labor organization may be expelled or disciplined until there has been notice and a fair hearing. The latter right is not exclusive, for as noted the Act gives members remedies for infringement of rights under the Act or under the constitution and bylaws of the union. In the présent case respondent went to one Wise, in charge of referral of men to jobs through the union hiring hall, and during the discussion which followed there was an altercation in which respondent hit Wise. For that as-sault respondent was fined in a criminal court. There-upon Wise filed charges against respondent for violations 1 Section 102 provides : “Any person whose rights secured by the provisions of this title hâve been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (includ-ing injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.” (Emphasis added.) 2 Section 101 (a) (5) provides: “No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written spécifie charges; (B) given a reasonable time to préparé his defense; (C) afforded a full and fair hearing.” BOILERMAKERS v. HARDEMAN 249 233 Douglas, J., dissenting of one provision of the union’s bylaws 3 and one provision of the union’s constitution.4 At a hearing before a committee of the local lodge which Hardeman attended it was determined that respondent was “guilty as charged.” That détermination was approved by the membership of the local which voted to suspend him from membership “indefinitely.” Respondent appealed to the International Union, petitioner here. Acting through its president and its international executive council it denied the appeal. Thereafter respondent sued International for conse-quential and punitive damages. The case was tried by 3 Article XII of the bylaws provides : “In addition to the offenses and penalties set out in the applicable provisions of the International and Subordinate Lodge Constitution, the following offenses and penalties shall be observed in this Subordinate Lodge, and any member who violâtes same shall, if found guilty after proper hearing as provided herein, be punished as war-ranted by the offense. “(1) It shall be a violation of these By-Laws for any member through the use of force or violence or the threat of the use of force or violence to restrain, coerce or intimidate, or attempt to restrain, coerce or intimidate any official of this International Brotherhood or Subordinate Lodge to prevent or attempt to pre-vent him from properly discharging the duties of his office.” 4 Article XIII, § 1, of the constitution provides: “Any member who endeavors to create dissension among the members; or who works against the interest and harmony of the International Brotherhood or of any District or Subordinate Lodge; who advocates or encourages a division of the funds, or the dissolution of any District or Subordinate Lodge, or the séparation of any District or Subordinate Lodge from the International Brotherhood; who supports or becomes a member of any dual or subversive organization which shall be hostile to the International Brotherhood or to any of its Subordinate Lodges, or which is antagonistic to the principles and purposes of the International Brotherhood, shall upon conviction thereof be punished by expulsion from the International Brotherhood.” 250 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. a jury which returned a verdict of $152,150 and the Court of Appeals affirmed. 420 F. 2d 485. There was evidence that there was a grudge between Wise and respondent, out of which the fist fight occurred. And there was evidence that the force or violence was an attempt to coerce Wise “to prevent him from properly discharging the duties of his office” within a rational meaning of the bylaws of the union.5 And the District Court so charged the jury. But, as the District Court ruled, there was no evidence that respondent en-deavored “to create dissension among the members” or to work against the “interest and harmony” of the union within the meaning of Art. XIII of the constitution.6 I agréé that a court does not sit in review of a union as it does of an administrative agency. But by reason of §101 (a) (5) judicial oversight is much more than procédural; it provides in subsection (C) for “a full and fair hearing.” Even if every conceivable procédural guarantee is provided, a hearing is not “fair” when ail substantive rights are stripped away to reach a pre-ordained resuit. If there is to be a “fair hearing” there must, I submit, be some evidence directed to the charges to support the conclusion. Membership in a union may be the key to livelihood itself.7 Without membership, the member may be cast into the outer darkness, so far as employment is con-cerned. Just as this Court concluded Congress did not authorize exclusive bargaining agents to make invidious discriminations, Steele v. Louisville & Nashville R. Co., 323 U. S. 192, it is unthinkable to me that Congress in designing § 101 (a) (5) gave unions the authority to expel 5 See n. 3, supra. 6 See n. 4, supra. 7 Hardeman testified at trial that following the loss of his union card he was unable to work in the boilermaker’s trade beyond one job lasting five days. BOILERMAKERS v. HARDEMAN 251 233 Douglas, J., dissenting members for such reasons as they chose. For courts to lend their hand to such oppressive practices is to put the judicial imprimatur on the union’s utter disregard of due process to reach its own ends. In Boüermakers v. Braswell, arising out of the same incident, the Court of Appeals followed that reasoning. 388 F. 2d 193, 199. It said: “[T]he act charged to Braswell was a blow struck in anger, and nothing more. However repre-hensible this act may be, it did not constitute a violation of the provisions in the charges. Article XIII, Section 1 of the constitution on its face is directed at threats to the union as an organization and to the effective carrying out of the union’s aims. Braswell’s fist was not such a threat.” As stated by a student in this area: “[H]ow can there be a ïull and fair hearing’ when it results in a verdict which mocks the evidence?” 8 Of course, the reviewing court does not give a hearing de novo; nor does it review the merits of the dispute. But it does sit to check in-temperate use of union power; and if it is to discharge its duties, it must conclude that there is some evidence to sustain the charge. This is the view of the Second, Third, and Fifth Circuits, Vars v. Boüermakers, 320 F. 2d 576; Kelsey v. Philadelphia Local No. 8, 419 F. 2d 491 ; Boiler-makers v. Braswell, 388 F. 2d 193, and I would adopt it as the controlling legal principle. Violation of Art. XIII of the constitution carries with it automatic expulsion. Violation of the bylaws would carry punishment “as warranted by the offense,” which, I assume, would justify expulsion. For respondent to use force against Wise who was in charge of referral of men to jobs through the union hiring hall 8 Christensen, Union Discipline Under Fédéral Law: Institutional Dilemmas in an Industrial Democracy, 43 N. Y. U. L. Rev. 227, 251. 252 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. may well hâve been an attempt “to prevent him from properly discharging the duties of his office” within the meaning of Art. XII. But how an isolated fist fight could “create dissension” among union members or work against the union’s interests in the other ways described in Art. XIII remains a mystery. The finding of the union was the general one “guilty as charged.” Under which provision—constitution or by-law—it suspended him indefinitely is not made clear. Perhaps it was under only one or perhaps under both provisions. In that posture the case is in the category of Strom-berg v. California, 283 U. S. 359, where a conviction might hâve been valid under one charge but would hâve been invalid under the other; but the verdict being a general one, it was impossible to tell under which he was convicted. It is as much a déniai of due process to sustain a conviction merely because a verdict of guilty might hâve been rendered on a valid ground as it is to send an accused to prison following conviction of a charge on which he was never tried. Cote v. Arkansas, 333 U. S. 196, 201. It was in that tradition that the District Court charged the jury: 9 “Now, that is ail they charged him with were those two sections and there is nothing in this record that would justify a finding of guilty under those sections. Ail of it is about the fight. 9 The Court of Appeals affirmed summarily on the basis of Boilermakers v. Braswell, 388 F. 2d 193, a case arising out of the same factual situation, as Braswell also assaulted Wise at the time respondent assaulted him. In Braswell, the Court of Appeals found that the blow was “struck in anger, and nothing more.” Hence it held that Braswell’s fist was not used as an effort to create dissension among members within the meaning of Art. XIII of the constitution. By its summary affirmance in the présent case it presumably reached the same conclusion in the présent case. BOILERMAKERS v. HARDEMAN 253 233 Douglas, J., dissenting “I am telling you, as a matter of law, that under the proof, the finding which resulted in his being expelled, cannot legally stand and therefore he was wrongfully expelled.” (Emphasis added.) Since the finding of “guilty as charged” had that in-firmity, it could not stand; and the jury was justified in assessing damages for an unlawful expulsion.10 10 It is urged that since respondent’s complaint arose out of his effort to obtain employment, his relief may be sought only from the National Labor Relations Board. See San Diego Building Trades Council v. Garmon, 359 U. S. 236; Local 100, Journeymen v. Borden, 373 U. S. 690; Local 207 v. Perko, 373 U. S. 701. The argument is that the expulsion of respondent was “arguably” an unfair labor practice and that exclusive jurisdiction therefore was with the Board. But Garmon prevents conflicts between fédéral and state policy. If there is a conflict in the présent case, it is between two fédéral agencies; and Congress has declared in § 102 of the Landrum-Grifïin Act that the fédéral courts, not the Board, are to hâve the primary rôle. 415-649 0 - 72 - 22 254 OCTOBER TERM, 1970 Syllabus 401 U. S. UNITED STATES v. WELLER APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. 77. Argued December 10, 1970—Decided February 24, 1971 Appellee, who claimed conscientious objector status, was refused représentation by his attorney at the time of his personal appearance before his draft board on the basis of a Sélective Service régulation prohibiting such représentation. Subsequently indicted for refusing to submit to induction, appellee filed a motion to dismiss, contending that the déniai of counsel had deprived him of due process. The District Court granted appellee’s motion on the ground that the régulation was not authorized by the Military Sélective Service Act of 1967. The United States filed a notice of appeal to this Court, but, after reconsidering and concluding that this Court lacked jurisdiction to entertain its direct appeal from the District Court’s order, the United States moved for a remand to the Court of Appeals. Appellee contends that the “construction of the statute” dismissal provision or the “motion in bar” provision of the Criminal Appeals Act gives this Court jurisdiction of the appeal. Held: 1. This Court has no jurisdiction of the appeal under the “construction of the statute” provision since the interrelation of the régulation and the statute fell short of that required for the dismissal to hâve been based upon the construction of the statute. United States v. Mersky, 361 U. S. 431, distinguished. Pp. 257-259. 2. The “motion in bar” provision applies only when a défendant, while not denying the commission of the offense, daims that an extraneous factor forecloses prosecution. That provision is inapplicable here since appellee contends that his refusai to submit to induction was not a crime because of the déniai of counsel by his draft board. Pp. 259-261. 309 F. Supp. 50, remanded. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, Brennan, White, Marshall, and Blackmun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 261, UNITED STATES v. WELLER 255 254 Opinion of the Court James van R. Springer argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Béatrice Rosenberg, Philip R. Monahan, and Roger A. Pauley. Marvin M. Karpatkin argued the cause for appellee. With him on the brief were Michael N. Pollet, Melvin L. Wulf, and Rhoda H. Karpatkin. Mr. Justice Stew’ART delivered the opinion of the Court. In this case we are called upon once again to construe the elusive provisions of the Criminal Appeals Act, 18 U. S. C. § 3731.1 Somewhat ironically, the argument that we hâve no jurisdiction over this appeal is made by the appellant, the United States. The appellee, on the other hand, insists the case is properly here. A grand jury in the United States District Court for the Northern District of California indicted the appellee for refusing to submit to induction into the Armed Forces, a violation of 50 U. S. C. App. § 462 (a) (1964 ed., 1 The end of our problems with this Act is finally in sight. The Omnibus Crime Control Act of 1970, § 14 (a), 84 Stat. 1890, amended the Criminal Appeals Act to read in pertinent part as follows: “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeop-ardy clause of the United States Constitution prohibits further prosecution.” This Court’s appellate jurisdiction of Government appeals in fédéral criminal cases has thus been eliminated. Pending cases, however, are not affected, since subsection (b) of the amending section provides : “The amendments made by this section shall not apply with respect to any criminal case begun in any district court before the effective date of this section.” The Omnibus Crime Control Act of 1970 took effect on January 2, 1971. The appellee in this case was indicted on January 15, 1969. 256 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Supp. V).2 In the Sélective Service proceedings leading up to his induction notice, the appellee sought conscien-tious objector status. He specifically requested that his lawyer be allowed to accompany him at the time of his Personal appearance before his local board, but the board, relying on 32 CFR § 1624.1 (b), denied the request and conducted the personal appearance without the appel-lee’s counsel présent.3 Subsequently, the board declined to reopen the appellee’s I-A classification, and the appellee unsuccessfully exhausted administrative review. His order to report for induction, his refusai to submit, and this prosecution followed. The appellee moved before trial to dismiss his indictment on the ground, among others, that the déniai of counsel at the time of his personal appearance before the board deprived him of due process of law under the Fifth Amendment. The District Court did not squarely décidé this constitutional claim, but granted the motion to dismiss on the ground that the régulation prohibiting représentation by counsel at a registrant’s personal appearance was not authorized by the Military Sélective Service Act. 309 F. Supp. 50. The court relied primarily upon Greene v. McElroy, 360 U. S. 474, in which our opinion underscored “the Court’s concern that tradi-tional forms of fair procedure not be restricted by 2 Military Sélective Service Act of 1967, § 12 (a), 50 U. S. C. App. §462 (a) (1964 ed., Supp. V), provides in pertinent part: “[A]ny person . . . who . . . refuses . . . service in the armed forces ... or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . . .” 3 32 CFR § 1624.1 (b) (1970) provides in pertinent part: “[N]o registrant may be represented before the local board by anyone acting as attorney or legal counsel,” UNITED STATES v. WELLER 257 254 Opinion of the Court implication or without the most explicit action by the Nation’s lawmakers, even in areas where it is possible that the Constitution présents no inhibition.” 360 U. S., at 508. Viewing the personal appearance as “a critical stage of an administrative process at which substantial rights are adjudicated,” 309 F. Supp., at 51, the District Court found the various provisions of the Sélective Service Act conferring rulemaking power on the Executive insufficient to authorize a régulation denying counsel at local board hearings.4 The United States filed a notice of appeal to this Court. Subsequently, the Government reconsidered its position and concluded that this Court lacked jurisdiction over the appeal. Accordingly, the Solicitor General filed a motion asking us to remand the case to the United States Court of Appeals for the Ninth Circuit. We post-poned further considération of the question of jurisdiction until the hearing of the case on the merits. 397 U. S. 985. We now conclude that this appeal is not properly here and, pursuant to the provisions of the Criminal Appeals Act, remand the case to the Court of Appeals.5 The appellee urges that we hâve jurisdiction under either of two sections of the Act, one relating to dis- 4 The District Court cited Military Sélective Service Act § 10 (b) (3), 50 U. S. C. App. §460 (b) (3) (1964 ed, Supp. V), and § 1 (c) of the Act, 50 U. S. C. App. §451 (c). See also Military Sélective Service Act §§ 5 (a)(l), 10 (b) (1), 50 U. S. C. App. §§455 (a) (1) (1964 ed., Supp. V), 460 (b) (1). 5 See 18 U. S. C. § 3731: “If an appeal shall be taken, pursuant to this section, to the Suprême Court of the United States which, in the opinion of that Court, should hâve been taken to a court of appeals, the Suprême Court shall remand the case to the court of appeals, which shall then hâve jurisdiction to hear and détermine the same as if the appeal had been taken to that court in the first instance.” 258 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. missal of an indictment based on the construction of the statute on which the indictment is founded and the other to motions in bar.6 Considering first the “construction of the statute” provision, the controlling precedent is this Court’s decision in United States v. Mersky, 361 U. S. 431. In that case, as in this one, there were in issue both a statute and a régulation promulgated pursuant to it. In finding jurisdiction in Mersky, however, the Court noted that “neither the statute nor the régulations are complété without the other, and only together do they hâve any force. In effect, therefore, the construction of one necessarily involves the construction of the other. . . . When the statute and régulations are so inextricably intertwined, the dismissal must be held to involve the construction of the statute.” 361 U. S., at 438.7 The relation between the Sélective Service Act and the régulation forbidding représentation by counsel before local boards is wholly different from the situation in Mersky. The régulation is not at ail “called for by the statute itself,” 361 U. S., at 438. Indeed, so inde-pendent are the statute and the régulation that it would be entirely possible for a régulation covering the same subject matter to provide exactly the reverse of what the présent régulation requires. It cannot be said here 6 Ibid. : “An appeal may be taken by and on behalf of the United States from the district courts direct to the Suprême Court of the United States in ail criminal cases in the following instances: “From a decision or judgment . . . dismissing any indictment . . . where such decision or judgment is based upon the . . . construction of the statute upon which the indictment . . . is founded. “From the decision or judgment sustaining a motion in bar, when the défendant has not been put in jeopardy.” 7 The dissenting opinions would hâve found jurisdiction wanting in Mersky. 361 U. S., at 444, 453, UNITED STATES v. WELLER 259 254 Opinion of the Court that “the construction of one necessarily involves the construction of the other.” Since this statute and this régulation fall so far short of being “inextricably inter-twined,” we conclude that the dismissal of the appellee’s indictment was not “based upon the . . . construction of the statute.” 8 We turn, accordingly, to the “motion in bar” provision of the Criminal Appeals Act. Two preliminary observations are necessary. First, a “motion in bar” must be taken to mean whatever was meant by a “spécial plea in bar” in the Act as originally passed in 1907.9 Second, this Court has never settled on a definitive interprétation of what constitutes a “motion in bar.” 10 During its debates on the Criminal Appeals Act in 1907, Congress paid relatively little attention to the “spécial plea in bar” section of the Act. The clearest statement of its meaning was given by one of the bill’s cosponsors, Senator Patterson: “A spécial plea in bar is that which is set up as a spécial defense notwithstanding the défendant may be guilty of the offenses with which he is charged; 8 It is suggested in dissent that we hâve jurisdiction because of the language in 50 U. S. C. App. §460 (b) (3) (1964 ed., Supp. V) conferring upon local boards the power “to hear and détermine” daims for exemption and deferment from military service. The record does not indicate that this statutory language was mentioned by the appellee in the District Court, and the court did not rely upon the “hear and détermine” clause in dismissing the indictment. The theory of the dissent was not urged before this Court, perhaps because the parties realized that it can hardly be said that a dismissal of an indictment was “based upon” a construction of a statutory provision that the District Court never even considered. 9 United States v. Sisson, 399 U. S. 267, 292-293, n. 22; Note 4 of Advisory Committee to Fed. Rule Crim. Proc. 54 (c), reprinted following Fed. Rule Crim. Proc. 54, 18 U. S. C. App. 10 United States v. Sisson, 399 U. S., at 300 and nn. 53-54. 260 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. it is for some outside matter; yet it may hâve been connected with the case.”11 The ténor of this définition accords with traditional usage, for at coinmon law the most usual spécial plea in bar took the form of confession and avoidance. 1 J. Chitty, Treatise on Pleading and Parties to Actions *551-552 (16th Am. ed. 1883). In criminal cases the most com-mon spécial pleas in bar presented daims of double jeopardy or pardon, 2 J. Bishop, New Criminal Procedure § 742 (2d ed. 1913), and sometimes the statute of limitations, id., at § 799 (5). A characteristic common to ail these définitions is that a spécial plea in bar did not deny that a défendant had committed the acts alleged and that the acts were a crime. Rather, it claimed that nevertheless he could not be prosecuted for his crime because of some extraneous factor. A situation in which the défendant daims that his act was simply not a crime would be beyond the scope of this test. Our decisions are consistent with this reading of the “motion in bar” provision. In early cases under the section, the most familiar plea in bar interposed the statute of limitations. E. g., United States v. Goldman, 277 U. S. 229, 236-237; United States v. Rabinowich, 238 U. S. 78, 83-84. In other cases défendants hâve claimed immunity because of prior self-incriminatory testimony or a statutory grant of immunity. United States v. Blue, 384 U. S. 251; United States v. Hoffman, 335 U. S. 77, 78; United States v. Monia, 317 U. S. 424. See also United States v. Ewell, 383 U. S. 116 (speedy trial); United States v. Hark, 320 U. S. 531 (governing régulation revoked after violation but before indictment) ; United States v. Thompson, 251 U. S. 407 (first grand jury refused to indict; charges submitted to second grand jury without 11 41 Cong. Rec. 2753. UNITED STATES v. WELLER 261 254 Douglas, J., dissenting court approval) ; United States v. Celestine, 215 U. S. 278 (challenge to fédéral jurisdiction).12 Testing the appellee’s motion to dismiss by this standard, we think it plain that it cannot qualify as a “motion in bar.” The appellee did not deny that he refused to submit to induction, but he claimed that his conduct was not a crime because of the prior déniai of counsel. He has not confessed to a crime and claimed immunity from prosecution; he argues that he has committed no crime. We conclude, therefore, that we hâve no jurisdiction over this appeal under either the “construction of the statute” or “motion in bar” provisions of the Criminal Appeals Act. Accordingly, this case is remanded to the United States Court of Appeals for the Ninth Circuit for further proceedings in that court. It is so ordered. Mr. Justice Douglas, dissenting. I believe that the appeal is properly here and I believe that United States v. Mersky, 361 U. S. 431, is a precedent that sustains my view and may not properly be distinguished as the Court undertakes to do. In Mersky a statute governing the labeling of imported articles was involved. The Act made it mandatory to label articles of foreign origin with “the English name of the country of origin.” It also said that the Secre-tary of the Treasury “may” détermine the “words and phrases or abbreviations” which were acceptable “as indicating the country of origin.” 19 U. S. C. § 1304 (a). 12 Only two cases appear difficult to reconcile with the test adopted in text, and these are of dubious parentage. In United States v. Covington, 395 U. S. 57, and United States n. Murdock, 284 U. S. 141, défendants were being prosecuted for refusais to answer which they justified on grounds of Fifth Amendment privilège. Murdock itself, however, said that the plea was not appro-priately presented as one in bar. 284 U. S., at 151. In Covington, we cited Murdock in assuming jurisdiction. 395 U. S., at 59 n. 2. 262 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. We held that the Act and the régulation were “so inextricably intertwined” that dismissal of the information “must be held to involve the construction of the statute.” 361 U. S., at 438. In the présent case the Court concludes that the provision of the Military Sélective Service Act of 1967 in issue and the régulations are “far short” of being “inextricably intertwined.” But, with ail respect, the only section of the Act quoted is the penal provision defining the crime of refusing to be inducted.1 The more relevant section is §10 (b) (3), 50 U. S. C. App. §460 (b) (3) (1964 ed., Supp. V), which reads in relevant part: “Such local boards, or separate panels thereof each consisting of three or more members, shall, under rules and régulations prescribed by the President [§ 10 (b)(l)], hâve the power within the respective jurisdictions of such local boards to hear and détermine, subject to the right of appeal . . . , ail questions or daims with respect to inclusion for, or exemption or deferment from, training and service under this title . . . .” (Emphasis added.) The question turns on the meaning of “to hear and détermine.” President Truman, pursuant to his rule-making power granted by § 10 (b)(l), promulgated on August 20, 1948, a régulation, now 32 CFR § 1624.1, which described the kind of “hearing” to which a regis-trant is entitled.2 More precisely does the power “to 1 As we noted only last Term in dealing with this same statute, “As a matter of sound construction, however, ‘statute upon which the indietment . . . is founded’ should be read to include the entire statute, and not simply the penalty provisions.” United States v. Sisson, 399 U. S. 267, 280 n. 9. 2 The predecessor of 32 CFR § 1624.1, as promulgated by President Truman, provided in relevant part: “(a) Every registrant, after his classification is determined by the local board (except a classification which is itself determined UNITED STATES v. WELLER 263 254 Douglas, J., dissenting hear and détermine” include the right of a registrant per-sonally to appear? Does it include the right of a registrant to appear through an attorney or with an attorney? Is the question to be resolved “under the rules and régulations prescribed by the President” or is the Act to be read as including constitutional requirements of counsel? In my view the power “to hear and détermine,” granted by the Act, may indeed be more intertwined with the régulations than was the Act in the Mersky case. For in the latter, the Act, as noted, made it mandatory to label articles of foreign origin with “the English name of the country of origin.” The power of the Secretary of the Treasury to promulgate régulations was therefore a power merely to fill in details. In contrast, the présent Act leaves to “rules and régulations prescribed by the President” the scope and nature of the power of a local board “to hear and détermine” the daims of a registrant. Is that constitutionally permissible? upon an appearance before the local board under the provisions of this part), shall hâve an opportunity to appear in person before the member or members of the local board designated for the purpose if he files a written request therefor within 10 days after the local board has mailed a Notice of Classification (SSS Form No. 110) to him. Such 10-day period may not be extended, except when the local board finds that the registrant was unable to file such request within such period because of circumstances over which he had no control. “(b) No person other than a registrant shall hâve the right to appear in person before the local board, but the local board may, in its discrétion, permit any person to appear before it with or on behalf of a registrant: Provided, That if the registrant does not speak English adequately he may appear with a person to act as interpréter for him: And provided jurther, That no registrant may be represented before the local board by anyone acting as attorney or legal counsel.” 13 Fed. Reg. 4858. Section 1624.1 (a) was amended by President Johnson by Executive Order No. 11350 on May 3, 1967, in respects not material here. 32 Fed. Reg. 6961. 264 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. This case, rather than Mersky, is more nearly the one where the Act and the régulations are “so inextricably intertwined” that dismissal of the présent indictment “must be held to involve the construction of the statute.” The District Court construed “hear and détermine” daims of registrants “under rules and régulations pre-scribed by the President,” as those words are used in § 10 (b) (3) of the Act, not to authorize “the constitutionally-suspect action of removing the right to be represented by counsel.” 309 F. Supp., at 52. The District Court in granting the motion to dismiss accordingly concluded that it was “loathe to hold that the administrative déniai of such a right is either authorized by Congress or is constitutional.” Id., at 56. I therefore cannot say that the dismissal of the indictment was not based on a construction of the statute that the District Court never considered. I would not remit the case to the Court of Appeals but would décidé here and now whether in the circumstances here presented the registrant was entitled to the aid of counsel at the hearing before the board. MONITOR PATRIOT CO. v. ROY 265 Syllabus MONITOR PATRIOT CO. et al. v. ROY, EXECUTRIX CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE No. 62. Argued December 17, 1970—Decided February 24, 1971 Just before the 1960 New Hampshire Démocratie primary élection, petitioner newspaper published a column characterizing sénatorial candidate Roy as a “former small-time bootlegger.” Roy, who was not elected, sued the newspaper and the distributor of the column for libel. The judge told the jury that Roy, as a candidate, was a “public official,” and that a rule requiring a showing that the article was false and had been published “with knowledge of its falsity or with reckless disregard of whether it was false or true,” applied as long as the libel concerned “official” as opposed to “private” conduct. The jury was instructed that if it found the libel to be in the “public sector,” it had to bring in a verdict for the distributor, as there was no evidence that it had engaged in knowing or reckless falsehood, but that it had to décidé on the “prépondérance of the evidence” whether the newspaper was liable. If the publication was in the “private sector,” there were two defenses: (1) “justification,” if the article was true and published on a “lawful occasion,” and (2) “conditional privilège,” if the article was false but if the publication was “on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published.” The jury returned a verdict against both the newspaper and the distributor of the column. The State Suprême Court affirmed, holding that the jury properly considered whether the alleged libel was “relevant” to Roy’s fitness for office. Held: 1. Publications concerning candidates for public office must be accorded at least as much protection under the First and Four-teenth Amendments as those concerning occupants of public office. Pp. 270-272. 2. As a matter of constitutional law, a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official’s or a candidate’s fitness for purposes of applying the “knowing falsehood or reckless disregard” rule of New York Times Co. v. Sullivan, 376 U. S. 254. Pp. 272-277. 266 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. 3. The jury here was erroneously permitted to détermine that the criminal charge was not “relevant” and that the New York Times standard was inapplicable. P. 277. 109 N. H. 441, 254 A. 2d 832, reversed and remanded. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Brennan, White, Marshall, and Blackmun, JJ., joined. White, J., filed a concurring opinion, post, p. 301. Black, J., filed an opinion concurring in the judgment and dissenting in part, in which Douglas, J., joined, post, p. 277. Edward Bennett Williams argued the cause for peti-tioners. With him on the briefs were Harold Ungar and Joseph A. Millimet. Stanley M. Brown argued the cause and filed a brief for respondent. Mr. Justice Stewart delivered the opinion of the Court. On September 10, 1960, three days before the New Hampshire Démocratie Party’s primary élection of candidates for the United States Senate, the Concord Monitor, a daily newspaper in Concord, New Hampshire, published a syndicated “D. C. Merry-Go-Round” column dis-cussing the fortheoming élection. The column spoke of political maneuvering in the primary campaign, re-ferred to the criminal records of several of the candidates, and characterized Alphonse Roy, one of the candidates, as a “former small-time bootlegger.”1 Roy was not 1 The text of the portion of the column concerning the New Hampshire primary was as follows : “Political Snafu “Rock-ribbed Republican New Hampshire, whose ex-Gov. Sherman Adams was top kick in the White House for years and whose Sen. Styles Bridges is still top kick on the GOP side of the Senate, MONITOR PATRIOT CO. v. ROY 267 265 Opinion of the Court elected in the primary, and he subsequently sued the Monitor Patriot Co. and the North American Newspaper Alliance (NANA), the distributor of the column, for libel. is so fouled up in a primary snafu that the state may go Démocratie this year. The primary verdict is due next Tuesday. “Even that able Senate stalwart, Styles Bridges, is restirring himself. He has nothing to worry about from his Republican opponent, but the Democrats hâve put up a dynamic Dartmouth professor, Herbert Hill, against him. The professor came within 11,000 votes of defeating Sherman Adams, lately of vicuna-coat famé, in the 1948 gubernatorial race. “Curiously, the Démocratie primary has been cluttered with a motley assortment of candidates who hâve challenged Hill for the privilège of running against Bridges. That sly, old Republican disclaims any connection with it, but he appears pleased over the muddying of Démocratie waters. “One of Hill’s primary opponents Frank L. Sullivan, was released from the Grasmere County Work Farm just in time to file for the Senate. With a police record of no fewer than 19 convictions for drunkenness since 1945, he was serving his latest 90-day sentence. “Curious Call “To make sure he would get out in time to run for the Senate, a former small-time bootlegger and later U. S. Marshal, Alphonse Roy, telephoned the Grasmere warden about Sullivan. “Ralph LaVallee in charge of Grasmere, admitted to this column that he had received a téléphoné inquiry from Roy as to whether Sullivan would be released in time to file. But the warden denied another report that Roy had announced he was calling 'on behalf of my friend Styles.’ “ ‘I don’t want to get implicated in anything like that,’ said LaVallee, ‘Roy didn’t mention Senator Bridges.’ “Sullivan happily got out of the workhouse in time to run for the most distinguished legislative body in the world. And who should turn up on the ballot but the same Alphonse Roy who was so eager to get him out of the clink. “Because of the peculiar population division of New Hampshire, the Irish Catholics may be inclined to vote for a Frank Sullivan while the French Canadians could be attracted by a name like 268 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. The newspaper and NANA offered “truth” as their primary defense at trial, and evidence was presented on the issue of whether or not Roy had in fact been a boot-legger during the prohibition era. The défendants also alleged that they had published in good faith, without malice, with a reasonable belief in the probable truth of the charge, and on a lawful occasion. At the close of the evidence, the trial judge instructed the jury at great length on the law to be applied to the case. Three possible defenses emerged from these jury instructions. First, the trial judge told the jury that Roy was a “public official” by virtue of his candidacy in the primary. As a conséquence, a spécial rule, requiring a showing that the article was false and had been published with “knowledge of its falsity or with a reckless disregard of whether it was false or true,” would apply so long as the libel concerned “official conduct” as opposed to “pri-vate conduct.” This private-public distinction was elab-orated as foliows: “Is it more probable than otherwise that the publication that the plaintiff was a former small-time bootlegger was a public affair on a par with Alphonse Roy. The effect would be to eut down Herb Hill’s chances. “Convicts For Senator “Two other curious candidates, who tried to run in the Démocratie primary against Hill, were Harold P. McCarthy who has a record of nine convictions for drunkenness, assault, and brawling, and Clement P. Robinson Jr., who has a record of six brushes with the law for drunkenness and trafîic violations. Robinson also re-ceived a 30-day suspended sentence for stealing two power lawn-mowers and a conviction for the nonsupport of his wife and three children. “But at least Professer Hill managed to persuade the New Hamp-shire Ballot Law Commission into knocking McCarthy and Robinson off the ballot.” MONITOR PATRIOT CO. v. ROY 269 265 Opinion of the Court official conduct of public officiais?” The trial judge went on: “As a candidate for the United States Senate, the plaintiff was within the public official concept, and a candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office. That is, anything which might touch on Alphonse Roy’s fitness for the office of United States Senator would corne within the concept of official conduct. If it would not touch upon or be relevant to his fitness for the office for which he was a candidate but was rather a bringing for-ward of the plaintiff’s long forgotten misconduct in which the public had no interest, then it would be a private matter in the private sector.” The judge then instructed the jury that if it found the libel to be in the “public sector” it must bring in a verdict for NANA, since there had been no evidence that NANA had engaged in knowing or reckless false-hood, but that it still had to décidé on the “prépondérance of the evidence” whether the newspaper was liable. Supposing the publication to be in the “private sector,” the trial judge instructed the jury that there were two possible defenses available to the newspaper and NANA. The first was “justification,” which would prevail if the jury found that the article was both true and published on a “lawful occasion.” 2 The second defense was “con- 2 The trial judge gave the jury the following définition of a “lawful occasion”: “If the end to be attained by the publication is justifiable, that is, to give useful information to those who hâve a right and ought to know in order that they may act upon such information, the occasion is lawful. Where, however, there is merely the color of a lawful occasion and the défendant, instead of acting in good faith, 415-649 0 - 72 - 23 270 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ditional privilège,” which could prevail even if the jury found the article to be false, but only if it also found that its publication was “on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published.” The jury returned a verdict of $20,000, of which $10,000 was against the newspaper and $10,000 against NANA. On appeal, the New Hampshire Suprême Court affirmed the judgment, holding that the trial judge prop-erly sent to the jury the question of whether or not the particular libel alleged was “relevant” to Roy’s fit-ness for office. 109 N. H. 441, 254 A. 2d 832. We granted certiorari in order to consider the constitutional issues presented by the case. 397 U. S. 904. I In New York Times Co. N. Sullivan, 376 U. S. 254, 279-280, we held that the First and Fourteenth Amendments require “a fédéral rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The rule of New York Times was based on a récognition that the First Amendment guarantee of a free press is inevitably in tension with state libel laws designed to secure society’s interest in the protection of individual réputation. The approach of New York Times was to identify a class of person— assumes to act for some justifiable end merely as a pretense to publish and circulate defamatory matter, or for other unlawful purpose, he is liable in the same manner as if such pretense had not been resorted to.” The trial judge placed the burden of showing a “lawful occasion” on the défendants.' MONITOR PATRIOT CO. v. ROY 271 265 Opinion of the Court there public officiais—and a type of activity—there official conduct—and to require as to defamations respecting them a particularly high standard of liability—knowing falsehood or reckless disregard of the truth. Later cases hâve made it clear that the applicability of this basic approach is not limited to those in public office or to the performance of official acts, or, for that matter, to conventional civil libel suits. Garrison v. Louisiana, 379 U. S. 64; Curtis Publishing Co. v. Butts, 388 U. S. 130; Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6. This case went to the jury in December 1966, after our decisions in New York Times and Garrison, but before Curtis and Greenbelt. The trial judge instructed the jury that Roy, as a candidate for elective public office, was a “public official,” and that characterization has not been challenged here. Given the later cases, it might be préférable to categorize a candidate as a “public figure,” if for no other reason than to avoid straining the common meaning of words. But the question is of no importance so far as the standard of liability in this case is concerned, for it is abundantly clear that, which-ever term is applied, publications concerning candidates must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office. That New York Times itself was intended to apply to candidates, in spite of the use of the more restricted “public official” terminology, is readily apparent from that opinion’s text and citations to case law.3 And if it be conceded that the First 3 One of the citations was to a Kansas decision which admirably stated the case for the inclusion of candidates within the rule: “[I]t is of the utmost conséquence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counter- 272 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Amendment was “fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth v. United States, 354 U. S. 476, 484, then it can hardly be doubted that the constitutional guarantee has its full-est and most urgent application precisely to the conduct of campaigns for political office. II The jury in this case returned verdicts against both the newspaper and NANA. It is clear, therefore, that it found the bootlegger charge to be in the “private sector,” since it had been instructed that unless it so found it could not impose liability on NANA. It is possible that having made this détermination, it then concluded that the charge was true but “unjustified”— that is, that it had been published without a “lawful occasion.” In any event, under the trial judge’s instructions it was also free to return a money verdict if it found that the publication was false and had not been made “in good faith,” for a “justifiable purpose,” and with a “belief founded on reasonable grounds of the truth of the matter published.” Since this standard is far less stringent than that of knowing falsehood or reckless disregard of the truth, the judgment must be reversed unless it can be shown that the New York Times rule is not applicable because of the nature of the libel in question. Cf. Ocala Star-Banner Co. v. Damron, post, p. 295. balance the inconvenience of private persons whose conduct may be involved, and occasional in jury to the réputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.” Coleman v. MacLennan, 78 Kan. 711, 724, 98 P. 281, 286 (1908). MONITOR PATRIOT CO. v. ROY 273 265 Opinion of the Court The respondent argues that under New York Times a plaintiff has a spécial burden of proof only as to libels “relating to official conduct,” that for a candidate “official conduct” means “conduct relevant to fitness for office,” and that the public-private issue is one of fact for the jury. In our view, however, the syllogistic manipulation of distinctions between “private sectors” and “public sectors,” or matters of fact and matters of law, is of little utility in resolving questions of First Amendment protection. In Garrison v. Louisiana, supra, we reversed a conviction for criminal libel of a man who had charged that a group of state court judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to “racketeer influences.” The Louisiana Suprême Court had held that these statements were not “criticisms . . . of the manner in which any one of the eight judges conducted his court when in session,” but rather were accusations of crime and “Personal attacks upon the integrity and honesty” of the judges. This Court rejected the proposed distinction: “Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, réputation. The New York Times rule is not rendered inapplicable merely because an official’s private réputation, as well as his public réputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officiais, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. Few personal attributes are more ger-mane to fitness for office than dishonesty, malfea-sance, or improper motivation, even though these 274 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. characteristics may also affect the official’s private character.” 379 U. S., at 76-77. Cf. Ocala Star-Banner Co. v. Damron, supra. The considérations that led us thus to reformulate the “official conduct” rule of New York Times in ternis of “anything which might touch on an official’s fitness for office” apply with spécial force to the case of the candidate. Indeed, whatever vitality the “official conduct” concept may retain with regard to occupants of public office, cf. Garrison, supra, at 72 n. 8, it is clearly of little applicability in the context of an élection cam-paign. The principal activity of a candidate in our political System, his “office,” so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualifies as a husband or father remain of “purely private” concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry “Foui!” when an opponent or an indus-trious reporter attempts to demonstrate the contrary.4 Any test adéquate to safeguard First Amendment guar-antees in this area must go far beyond the customary meaning of the phrase “official conduct.” 4 A commentator writing in 1949 described the ambience as follows : “Charges of gross incompétence, disregard of the public interest, communist sympathies, and the like hâve usually filled the air; and hints of bribery, embezzlement, and other criminal conduct are not infrequent. If actionable defamation is possible in this field, one might suppose that the chief energies of the courts, for some time after every political campaign, would be absorbed by libel and slander suits.” Noël, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875. MONITOR PATRIOT CO. v. ROY 275 265 Opinion of the Court Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of réputations is the staple of élection campaigns, and damage to réputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may hâve full recourse is a question we need not décidé in this case. The trial judge presented the issue to the jury in the form of the question: “Is it more probable than otherwise that the publication that the plain-tiff was a former small-time bootlegger was a public afïair on a par with official conduct of public officiais?” This instruction, and the others like it, left the jury far more leeway to act as censors than is consistent with the protection of the First and Fourteenth Amendments in the setting of a political campaign. The application of the traditional concepts of tort law to the conduct of a political campaign is bound to raise dangers for freedom of speech and of the press. The reasonable-man standard of liability, for example, serves admirably the essential function of imposing an objective and socially acceptable limit on the freedom of an in-dividual to act with relation to others. But under our System of government, we hâve chosen to afford protection even to “opinions that we loathe and believe to be fraught with death,” Abrams v. United States, 250 U. S. 616, 630 (Holmes, J., dissenting). A community that imposed legal liability on ail statements in a political campaign deemed “unreasonable” by a jury would hâve abandoned the First Amendment as we know it. Likewise, a “prépondérance of the evidence” burden of proof plays an indispensable rôle in the control of private négligence. But we hâve recognized that in the realm of political belief “the tenets of one man may seem the 276 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. rankest error to his neighbor,” and that the advocates whom we protect may resort to “exaggeration, to vilifica-tion of men who hâve been, or are, prominent in church or state, and even to false statement,” Cantwell v. Connecticut, 310 U. S. 296, 310. It is simply inconsistent with this commitment to permit the imposition of liability for political speech that “more probably than other-wise” in the opinion of the jury “would not touch upon or be relevant” to a candidate’s fitness for office. Cf. Speiser v. Randall, 357 U. S. 513, 525-526; Smith v. California, 361 U. S. 147. It is perhaps unavoidable that in the area of tension between the Constitution and the varions state laws of defamation there will be some uncertainty as to what publications are and what are not protected. The mental element of “knowing or reckless disregard” required under the New York Times test, for example, is not always easy of ascertainment. “Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrète cases, whether the standard is provided by the Constitution, statutes, or case law.” St. Amant v. Thompson, 390 U. S. 727, 730-731. But there is a major, and in this case décisive, différence between liability based on a standard of care, and liability based on a judgment of the “rele-vance” of a past incident of criminal conduct to an of-ficial’s or a candidate’s fitness for office. A standard of care “can be neutral with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood.” Curtis Publishing Co. v. Butts, supra, at 153 (opinion of Karlan, J.). A standard of “relevance,” on the other hand, especially such a standard applied by a jury under the preponderance-of-the- MONITOR PATRIOT CO. v. ROY 277 265 Opinion of Black, J. evidence test, is unlikely to be neutral with respect to the content of speech and holds a real danger of becom-ing an instrument for the suppression of those “vehement, caustic, and sometimes unpleasantly sharp attacks,” New York Times, supra, at 270, which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail. We therefore hold as a matter of constitutional law that a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official’s or a candidate’s fitness for office for purposes of application of the “knowing falsehood or reckless disregard” rule of New York Times Co. v. Sullivan. Since the jury in this case was permitted to make its own un-guided détermination that the charge of prior criminal activity was not “relevant,” and that the New York Times standard was thus inapplicable, the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. [For concurring opinion of Mr. Justice White, see post, p. 301.] Separate opinion of Mr. Justice Black, with whom Mr. Justice Douglas joins.* I concur in the judgments of the Court in this case and in No. 109 and No. 118, for the reasons set out in my concurring opinion in New York Times Co. n. Sullivan, 376 U. S. 254, 293 (1964), in my concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U. S. 130, 170 (1967), and in Mr. Justice Douglas’ concurring opinion in Garrison v. Louisiana, 379 U. S. 64, 80 (1964). *[This opinion applies also to No. 109, Time, Inc. v. Pape, post, p. 279, and No. 118, Ocala Star Banner Co. et al. v. Damron, post, p. 295.] 278 OCTOBER TERM, 1970 Opinion of Black, J. 401 U. S. However, I dissent from those portions of the opinions in this case and No. 118 which would permit these libel cases to be tried again under a different set of jury instructions. As I hâve stated before, “[I]t is time for this Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments.” Curtis Publishing Co. v. Butts, supra, at 172 (separate opinion of Black, J.). TIME, INC. v. PAPE 279 Syllabus TIME, INC. v. PAPE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 109. Argued December 16, 1970—Decided February 24, 1971 In a discussion of “police brutality and related private violence” in its 1961 Report, the Civil Rights Commission mentioned the case of Monroe v. Pape, 365 U. S. 167, and listed some of the allégations of Monroe’s civil rights complaint filed against certain Chicago policemen headed by Deputy Chief of Détectives Pape. In an article about the Report, Time magazine quoted from a summary of the complaint, without indicating that the charges were Monroe’s and not the independent findings of the Commission. Pape sued the petitioner publisher for libel. The Court of Appeals reversed the District Court’s grant of Time’s motion for summary judgment, holding that there had to be a trial on the question of whether Time’s failure to make clear that it was reporting no more than allégations showed “actual malice” (knowledge that the information was false or reckless disregard of whether it was false or not) under the rule of New York Times Co. v. Sullivan, 376 U. S. 254. At the trial the author of the article and the researcher admitted awareness that the wording of the Report had been significantly altered but insisted that its real meaning had not been changed. The District Court granted Time’s motion for a directed verdict at the close of the evidence, but the Court of Appeals reversed, holding that the jury should détermine whether the omission of the word “alleged” showed “actual malice.” Both courts agreed that Pape was a “public official” and that the article concerned his “official conduct.” Held: In the circumstances of this case the magazine did not engage in a “falsification” sufficient in itself to sustain a jury finding of “actual malice.” Pp. 284-292. (a) The magazine’s omission of the word “alleged” amounted to the adoption of one of several rational interprétations of a document bristling with ambiguities, and while that choice might reflect a misconception, it was not enough to create a jury issue of “malice” under the rule of New York Times, supra, as it would impose a stricter standard of liability on errors of interprétation or judgment than on errors of historié fact. P. 290. 280 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. (b) This holding is confined to the spécifie facts of this case, and nothing herein is to be understood as making the word “alleged” a superfluity in published reports of information dam-aging to réputation. P. 292. 419 F. 2d 980, reversed and remanded. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, and Blackmun, JJ., joined. Black, J., filed an opinion concurring in the judgment, in which Douglas, J., joined, ante, p. 277. Harlan, J., filed a dissenting opinion, post, p. 293. Don H. Reuben argued the cause for petitioner. With him on the briefs were Harold R. Médina, Jr., and Lawrence Gunnels. Patrick W. Dunne argued the cause for respondent. With him on the brief were Robert J. Nolan and Edward J. Hladis. Mr. Justice Stewart delivered the opinion of the Court. In November 1961, the United States Commission on Civil Rights issued the fifth volume of its Report for that year, a document entitled Justice. A part of Justice was devoted to a study of “police brutality and related private violence,” and contained the foliowing paragraph: “Search, seizure, and violence: Chicago, 1958.— The Suprême Court of the United States decided the case of Monroe v. Pape on February 20, 1961. Al-though this decision did not finally dispose of the case, it did permit the plaintiff to sue several Chicago police officers for violation of the Fédéral Civil Rights Acts on the basis of a complaint which alleged that: . [O]n October 29, 1958, at 5:45 a. m., thirteen Chicago police officers led by Deputy Chief of De- TIME, INC. v. PAPE 281 279 Opinion of the Court tectives Pape, broke through two doors of the Monroe apartment, woke the Monroe couple with flashlights, and forced them at gunpoint to leave their bed and stand naked in the center of the living room ; that the officers roused the six Monroe children and herded them into the living room; that Détective Pape struck Mr. Monroe several times with his flashlight, calling him ‘nigger’ and ‘black boy’ ; that another officer pushed Mrs. Monroe ; that other officers hit and kicked several of the children and pushed them to the floor; that the police ransacked every room, throwing clothing from closets to the floor, dumping drawers, ripping mattress covers; that Mr. Monroe was then taken to the police station and detained on ‘open’ charges for ten hours, during which time he was interrogated about a mur-der and exhibited in lineups ; that he was not brought before a magistrale, although numerous magistrate’s courts were accessible; that he was not advised of his procédural rights; that he was not permitted to call his family or an attorney; that he was subse-quently released without criminal charges having been filed against him.” Justice 20-21. A week later, Time, a weekly news magazine, carried a report of the Commission’s new publication. The Time article began: “The new paperback book has 307 pages and the simple title Justice. It is the last of five volumes in the second report of the U. S. Commission on Civil Rights, first created by Congress in 1957. Justice carries a chilling text about police brutality in both the South and the North—and it stands as a grave indictment, since its facts were carefully investigated 282 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. by field agents and it was signed by ail six of the noted educators who comprise the commission.” There followed a description, with mimerons direct quo-tations, of one of the incidents described in Justice, and then the foliowing account of the Monroe incident: “Shifting to the North, the report cites Chicago police treatment of Negro James Monroe and his family, who were awakened in their West Side apart-ment at 5:45 a. m. by 13 police officers, ostensibly investigating a murder. The police, says Justice, ‘broke through two doors, woke the Monroe couple with flashlights The Time article went on to quote at length from the summary of the Monroe complaint, without indicating in any way that the charges were those made by Monroe rather than independent findings of the Commission. Pape sued Time for libel in the United States District Court for the Northern District of Illinois, there being diversity of citizenship. Time moved to dismiss the suit on the ground that the article was fair comment on a government report and therefore privileged under Illinois law; the District Court granted the motion, but the Court of Appeals for the Seventh Circuit reversed. 318 F. 2d 652. After remand, this Court decided New York Times Co. v. Sullivan, 376 U. S. 254, and on the basis of that decision the District Court granted Time’s motion for summary judgment. On appeal, the Court of Appeals again reversed, holding that there must be a trial on the question of whether Time’s failure to make clear that it was reporting no more than allégations showed “actual malice.” 354 F. 2d 558. At the trial, Pape called the policemen who had par-ticipated in the Monroe raid. They ail testified that nothing resembling the events described in the Time TIME, INC. v. PAPE 283 279 Opinion of the Court article as findings of the Commission had occurred.* There was also extensive testimony from the Time staff member who had written the article and from the “re-searcher” who had been responsible for checking its fac-tual accuracy. The author testified that he had written the article on the basis of the Justice report itself, a Commission press release accompanying the report, and a New York Times news story describing Justice. He conceded that he knew the meanings of the words “alleged” and “complaint,” but denied that the Time article was false, given the full context of the Justice report. The researcher testified that she had consulted several newspaper articles describing Monroe’s daims about the raid, and several articles describing Pape’s previous ca-reer. She said that she had also read two dispatches from Time’s Chicago correspondent, one of them describing Monroe’s charges without comment as to their truth and the other asserting as fact that the events had actu-ally occurred. She conceded that she was aware of the omission of the word “alleged” in the Time article, but said that she believed the article to hâve been true as written. At the close of the evidence, the District Court granted Time’s motion for a directed verdict, 294 F. Supp. 1087, and Pape appealed for a third time. The Court of Appeals again reversed the District Court, holding that it was for the jury to détermine whether Time’s omission of the word “alleged” showed “actual malice.” 419 F. 2d 980. We granted certiorari in order to décidé the constitutional issue presented under the First and Four-teenth Amendments. 397 U. S. 1062. *On January 24, 1963, after a jury finding of liability, judgment was entered against Pape in the civil rights suit brought against him by Monroe. The jury awarded Monroe damages of $8,000. Pape did not appeal, and the judgment was satisfied. 284 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. The District Court and the Court of Appeals were in agreement that the plaintiff Pape was a “public official” by virtue of his position as Deputy Chief of Détectives of the Chicago Police Department, and that the charges contained in the Monroe complaint, the Justice report, and the Time story concerned his “official conduct.” The two courts difïered only in their application of the rule of New York Times Co. v. Sullivan, 376 U. S. 254, which “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. The only question before us, therefore, is whether the Court of Appeals correctly applied this constitutional rule to the facts of this case in reversing the directed verdict for the défendant. Inquiries of this kind are fa-miliar under the settled principle that “[i]n cases in which there is a claim of déniai of rights under the Fédéral Constitution, this Court is not bound by the conclusions of lower courts, but will re-examine the eviden-tiary basis on which those conclusions are founded.” Niemotko v. Maryland, 340 U. S. 268, 271. Cf. Napue v. Illinois, 360 U. S. 264, 271-272. And in cases involving the area of tension between the First and Fourteenth Amendments on the one hand and state defamation laws on the other, we hâve frequently had occasion to review “the evidence in the . . . record to détermine whether it could constitutionally support a judgment” for the plaintiff. New York Times, supra, at 284-285; Beckley Newspapers n. Hanks, 389 U. S. 81, 83; St. Amant v. Thompson, 390 U. S. 727; Greenbelt Cooperative Pub-lishing Assn. v. Bresler, 398 U. S. 6, 11. The Time news article reported as a charge by the Commission what was, in its literal terms, a description TIME, INC. v. PAPE 285 279 Opinion of the Court by the Commission of the allégations in a complaint filed by a plaintiff in a civil rights action. This situation differs in a number of respects from the conven-tional libel case. First, the publication sued on was not Time’s independent report of the Monroe épisode, but its report of what the Civil Rights Commission had said about that épisode. Second, the alleged damage to réputation was not that arising from mere publication, but rather that resulting from attribution of the Monroe accusations to an authoritative official source. Finally, Time made no claim of good-faith error or mere négligence. Both the author of the article and the re-searcher admitted an awareness at the time of publication that the wording of the Commission Report had been significantly altered, but insisted that its real meaning had not been changed. The Court of Appeals concluded that it was obvious that the omission of the word “allégation” or some équivalent was a “falsification” of the Report. Since the omission was admittedly conscious and deliberate, the only remaining question in the court’s view was whether there had been “malice” in the sense of an “intent to inflict harm through falsehood.” Such an intent, the court thought, might reasonably be inferred from the very act of deliberate omission, and the issue of malice was consequently one for the jury. Analysis of this kind may be adéquate when the alleged libel purports to be an eyewitness or other direct account of events that speak for themselves. For example, in St. Amant, supra, it made good sense to separate the question of the truth of St. Amant’s charges of corruption and official misbehavior from the question of whether he had an adéquate basis to believe them true. But a vast amount of what is published in the daily and periodical press purports to be descriptive of what some-body said rather than of what anybody did. Indeed, 415-649 0 - 72 - 24 286 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conférences, and the like. The question of the “truth” of such an indirect newspaper report présents rather complicated problems. A press report of what someone has said about an underlying event of news value can contain an almost infinité variety of shadings. Where the source of the news makes bald assertions of fact—such as that a police-man has arrested a certain man on a criminal charge— there may be no difficulty. But where the source itself has engaged in qualifying the information released, complexifies ramify. Any departure from full direct quota-tion of the words of the source, with ail its qualifying language, inevitably confronts the publisher with a set of choices. The Civil Rights Commission’s Justice report is a typical example of these problems. The underlying story that gave the report newsworthiness was the picture of police violence against citizens. Many of the incidents included were quite clearly designed to shock, anger, and alarm the reader, indeed to move him into a position of support for spécifie legislative recommendations of the Commission. Yet the attitude of the Commission toward the factual verity of the épisodes re-counted was anything but straightforward. First, the épisodes were presented in the context of a report which from the first page purported to be dealing with a problem of unquestionable reality and seriousness : “In 1931 President Hoover’s Wickersham Committee found extensive evidence of police lawlessness, in-cluding unjustified violence. Sixteen years later another Presidential Committee, this one appointed by President Truman, concluded that police bru-tality, especially against the unpopular, the weak, and the defenseless, was a distressing problem. And TIME, INC. v. PAPE 287 279 Opinion, of the Court now in 1961 this Commission must report that police brutality is still a serions problem throughout the United States.” Justice 1. Two pages later, the report said that “The Commission is particularly impressed by the fact that most police officers never resort to brutal practices. Because of this fact, instances of brutality or discrimination in law enforcement stand out in bold relief. It is hoped that by focusing the attention of the President, the Congress, and the public on these remaining incongruities, this Report may contribute to their correction.” This process of focusing attention began on the next page with the chapter heading, in large type: “UNLAW-FUL POLICE VIOLENCE.” There followed the crucial description of the foundations on which the ensuing reports were based: “In the text of this chapter the Commission briefly describes the alleged facts in 11 typical cases of police brutality. They are presented in the belief that they contribute to an understanding of the problem. The allégations of misconduct are sup-ported in several cases by criminal convictions or findings by impartial agencies; in others, by sworn testimony, affidavits from eye witnesses, or by staff field investigations. In no case has the Commission determined conclusively whether the complainants or the officers were correct in their statements. This is the function of a court. The Commission is of the opinion, however, that the allégations appeared substantial enough to justify discussion in this study.” This statement may fairly be characterized as ex-travagantly ambiguous. On the one hand, what was to foliow was “11 typical cases of police brutality,” each 288 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. of which “contribute[s] to an understanding of the prob-lem,” and was “substantial enough to justify discussion” in the study. A range of sources was described, each of a nature to inspire confidence in the reader. But, the reader was nonetheless told that these were “alleged facts,” “allégations of misconduct,” which had not been “determined conclusively” to be “correct.” The suggestion that such a conclusive détermination could be made only by a court capped the confusion: in context it was impossible to know whether the Commission was seeking to encourage belief or skepticism regarding the incidents about to be described. Turning the page, the reader was confronted with another heading in capitals, “PATTERNS OF POLICE BRUTALITY,” and then the descriptions of the various incidents began. Each had an italicized heading (e. g., “The killing of a Negro in Georgia: 1943”) followed by an account giving both sides of the story and carefully describing ail facts as “alleged” or using direct quota-tions. The tone of total neutrality as to the truth or falsity of the daims of brutality was frequently marred, however, by remarks that appeared to indicate the Com-mission’s unexpressed views. At the end of a description entitled “The killing of a Negro in Georgia: 1958,” for example, the report said, “[n]o local disciplinary or criminal action was taken against any of the officers involved. The attitude of local authorities toward police was protective in this and several other cases of alleged brutality that occurred within a brief period . . . .” Id., at 11. The description of the Monroe incident bore the italicized title: “Search, seizure, and violence: Chicago, 1958.” Unlike the reports of the other incidents, however, this report limited itself to the summary of a plaintiff’s complaint in a lawsuit, as indicated at the outset of this opinion. No attempt was made to give any other version TIME, INC. v. PAPE 289 279 Opinion of the Court of the story, and the next report {“The killing of a Negro in Cleveland: 1959”) foliowed immediately after the end of the quotation. In a chapter entitled “Conclusions,” the Commission set forth its findings and recommendations. These in-cluded a finding that “police brutality by some State and local officers présents a serions and continuing prob-lem in many parts of the United States. Both whites and Negroes are the victims, but Negroes are the vic-tims of such brutality far more, proportionately, than any other group in American society.” The recommendations included proposais for a grant-in-aid program to improve the quality of state and local police forces and for passage of a fédéral statute outlawing illégal police violence. Id., at 109-112. Since the sériés of incidents described earlier in the report was the only evidence the Commission presented in support of its findings and recommendations, there was a logically inévitable implication that the Commission must hâve believed that the incidents described had in truth occurred. In light of the totality of what was said in Justice, we cannot agréé that, when Time failed to state that the Commission in reporting the Monroe incident had tech-nically confined itself to the allégations of a complaint, Time engaged in a “falsification” sufficient in itself to sustain a jury finding of “actual malice.” The author of the Time article testified, in substance, that the context of the report of the Monroe incident indicated to him that the Commission believed that the incident had occurred as described. He therefore denied that he had falsified the report when he omitted the word “alleged.” The Time researcher, who had read newspaper stories about the incident and two reports from a Time reporter in Chicago, as well as the accounts of Pape’s earlier career, had even more reason to suppose that the Commission took the charges to be true. 290 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Time’s omission of the word “alleged” amounted to the adoption of one of a number of possible rational interprétations of a document that bristled with am-biguities. The deliberate choice of such an interprétation, though arguably reflecting a misconception, was not enough to create a jury issue of “malice” under New York Times. To permit the malice issue to go to the jury because of the omission of a word like “alleged,” despite the context of that word in the Commission Report and the external evidence of the Report’s overall meaning, would be to impose a much stricter standard of liability on errors of interprétation or judgment than on errors of historié fact. New York Times was premised on a récognition that, as Madison put it, “Some degree of abuse is inséparable from the proper use of every thing; and in no instance is this more true than in that of the press.” 4 J. Elliot’s Debates on the Fédéral Constitution 571 (1876). With respect to errors of fact in reporting events, we said in New York Times: “N rule compelling the critic of official conduct to guarantee the truth of ail his factual assertions— and to do so on pain of libel judgments virtually unlimited in amount—leads to . . . ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the défendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adéquate safeguard hâve recognized the difficulties of adducing legal proofs that the alleged libel was true in ail its factual par-ticulars. . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” 376 U. S., at 279. TIME, INC. v. PAPE 291 279 Opinion of the Court These considérations apply with even greater force to the situation where the alleged libel consists in the claimed misinterpretation of the gist of a lengthy government document. Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of “truth” that would not put the publisher virtually at the mercy of the unguided discrétion of a jury. In certain areas of the law of defamation, New York Times added to the tort law of the individual States a constitutional zone of protection for errors of fact caused by négligence. The publisher who maintains a standard of care such as to avoid knowing falsehood or reckless disregard of the truth is thereby given assurance that those errors that nonetheless occur will not lay him open to an indéterminable financial liability. This protection would not exist for errors of interprétation were the analysis of the Court of Appeals to be adopted, for once a jury was satisfied that the interprétation was “wrong,” the error itself would be sufficient to justify a verdict for the plaintiff. In St. Amant v. Thompson, supra, at 731, we said: “Our cases . . . hâve furnished meaningful guidance for the further définition of a reckless publication. In New York Times, supra, the plaintiff did not sat-isfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. Louisiana, 379 U. S. 64 (1964) . . . the opinion emphasized the necessity for a showing that a false publication was made with a ‘high degree of aware-ness of . . . probable falsity.’ 379 U. S., at 74. . . . These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would hâve published, or would hâve investigated before publishing. There must be sufficient evidence to permit the conclusion that the défendant in fact 292 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. entertained serions doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demon-strates actual malice.” Applying this standard to Time’s interprétation of the Commission Report, it can hardly be said that Time acted in reckless disregard of the truth. Given the ambiguities of the Commission Report as a whole, and the testimony of the Time author and researcher, Time’s conduct re-flected at most an error of judgment. We hâve held that if “the freedoms of expression are to hâve the ‘breathing space’ that they ‘need . . . to survive,’ ” misstatements of this kind must hâve the protection of the First and Fourteenth Amendments. New York Times, supra, at 271-272. We would add, however, a final cautionary note. Nothing in this opinion is to be understood as making the word “alleged” a superfluity in published reports of information damaging to réputation. Our decision to-day is based on the spécifie facts of this case, involving as they do a news report of a particular government publication that purported to describe the spécifie grounds for perceiving in 1961 “a serious problem throughout the United States.” “Neither lies nor false communications serve the ends of the First Amendment, and no one sug-gests their desirability or further prolifération. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.” St. Amant N. Thompson, supra, at 732. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [For separate opinion of Mr. Justice Black, see ante, p. 277.] TIME, INC. v. PAPE 293 279 Harlan, J., dissenting Mr. Justice Harlan, dissenting. I would affirm the judgment of the Court of Appeals, essentially for the reasons stated in Judge Duffy’s opinion for that court. The treatment of this case by our Court, however, prompts me to venture these additional com-ments. I fully agréé with the rule first enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), that restricts the liability of those who utter defamatory false-hoods regarding public officiais. We there recognized that because “erroneous statement is inévitable in free debate,” id., at 271, “neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct.” Id., at 273. But these considérations did not persuade us to rule that the Constitution grants absolute immunity to everyone, be it the news media or anyone else, who libels a public official, or to conclude that the usual processes of law are inadéquate for dealing with this kind of litigation. Rather, we decided that the substantial First Amendment interests implicated in any libel suit of this sort would be adequately served by a constitutional rule that subjects such a statement to the sanctions of the common law of libel only where it was uttered “with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280. The step taken today, whereby this Court undertakes to judge, “on the spécifie facts of this case,” ante, at 292, whether a jury could reasonably find that Time maga-zine’s characterization of the Commission’s report was sufficiently inaccurate to permit the concomitant finding that it was published with “malice,” is, in my judgment, not warranted. I can perceive no rational basis for distinguishing this case from one in which a newspaper or an individual seeks to hâve this Court review the record upon which a properly instructed jury found liability, where evidence 294 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. sufficient to support its verdict exists, and where these matters hâve been reviewed by a court of appeals apply-ing correct legal standards. As I see things, the Court identifies no such distinguishing feature about this case. While it is true, of course, that this Court is free to reexamine for itself the evidentiary bases upon which rest decisions that allegedly impair or punish the exercise of Fourteenth Amendment freedoms, this does not mean that we are of necessity always, or even usually, com-pelled to do so. Indeed, it is almost impossible to con-ceive how this Court might continue to function effec-tively were we to résolve afresh the underlying factual disputes in ail cases containing constitutional issues. Nor can I discern in those First Amendment considérations that led us to restrict the States’ powers to regu-late defamation of public officiais any additional interest that is not served by the actual-malice rule of New York Times, supra, but is substantially promoted by utilizing this Court as the ultimate arbiter of factual disputes in those libel cases where no unusual factors, such as allégations of harassment or the existence of a jury verdict resting on erroneous instructions, cf. New York Times, supra, are présent. While I am confident that the Court does not intend its decision to hâve any such broad reach, I fear that what is done today may open a door that will prove difficult to close. Having determined that the court below properly defined the quality of proof required of Pape by New York Times and that it applied the correct standard of review in passing upon the trial judge’s decision to grant a directed verdict—déterminations that I do not think my Brethren dispute—I would stop the inquiry at this point and affirm the judgment of the Court of Appeals. OCALA STAR-BANNER CO. v. DAMRON 295 Opinion of the Court OCALA STAR-BANNER CO. et al. v. DAMRON CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT No. 118. Argued December 17, 1970—Decided February 24, 1971 Petitioner newspaper published a false story that respondent, then a mayor and a candidate for county tax assessor, had been charged with perjury in fédéral court, and respondent sued for libel. The judge instructed the jury that the charge was libelous per se and that respondent could recover damages without showing malice. The jury awarded compensatory damages. The judge denied the newspaper’s motion for a new trial on the basis of the “actual malice” test of New York Times Co. v. Sullivan, 376 U. S. 254, on the ground that the article did not refer to respondent’s official conduct. The Florida District Court of Appeal affirmed, holding that the New York Times rule did not apply. Held: A charge of criminal conduct against a public official or a candidate for public office, no matter how remote in time or place, is always “relevant to his fitness for office” for purposes of applying the New York Times rule of knowing falsehood or reckless disregard of the truth. Monitor Patriot Co. v. Roy, ante, p. 265. Pp. 299-301. 221 So. 2d 459, reversed and remanded. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Brennan, White, Marshall, and Blackmun, JJ., joined. White, J., filed a concurring opinion, post, p. 301. Black, J., filed an opinion concurring in the judgment and dissenting in part, in which Douglas, J., joined, ante, p. 277. Harold B. Wahl argued the cause and filed briefs for petitioners. Wallace Dunn argued the cause and filed a brief for respondent. Mr. Justice Stewart delivered the opinion of the Court. The Ocala Star-Banner Co., a petitioner in this case, publishes a small daily newspaper serving four counties in rural Florida. On April 18, 1966, the Star-Banner 296 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. printed a story to the effect that the respondent, Leonard Damron, then the mayor of Crystal River in Citrus County and a candidate for the office of county tax assessor, had been charged in a fédéral court with per jury, and that his case had been held over until the following term of that court.1 This story was false. The respondent had not been charged with any crime in fédéral court, nor had any case involving him been held over, but the story was substantially accurate as to his brother, James Damron.2 Two weeks later the 1 The story appeared under a three-column head (“Damron Case Passed Over To Next U. S. Court Term”) and was as follows: “INGLIS—A case charging local garage owner Leonard Damron with perjury was passed over for the présent term of Fédéral Court after Damron entered a not guilty plea before Fédéral Judge Harrold Carswell in Gainesville. “Damron was indicted by a Fédéral grand jury in Tallahassee last January and charged with perjury in a 1964 civil case which resulted in damages of $65,000 being awarded to a Yankeetown couple. “Mrs. Gail Finley alleged that Levy County Deputy Sammy Cason slammed on brakes causing her to injure her neck in October of 1962. “Cason and Deputy Walter Beckham went to Yankeetown with a warrant for the arrest of Mrs. Jean Rich Sill, who was allegedly in the Izaac Walton Lodge. “According to officiais, the Finleys interfered with the officers, were arrested and charged with interfering with arrest. “A conviction obtained in County Court has been upheld through appeals by the Florida State Suprême Court. “The civil suit which followed was filed under an old, little-used fédéral statute in which the Finleys charged former sheriff J. W. Turner and Cason with a violation of their civil rights. “Damron testified that he had seen Mrs. Finley in a neck brace in late 1957 or early 1958 several years prior to the incident, but numerous other witnesses, summoned by the plaintiff, gave testi-mony, saying that Mrs. Finley had not previously worn a brace. “Damron was released on $2,000 bond, following his arrest by fédéral marshals Jan. 27.” 2 The Star-Banner printed two rétractions before the élection. OCALA STAR-BANNER CO. v. DAMRON 297 295 Opinion of the Court respondent was defeated in the élection for county tax assessor. He filed the présent suit against the Star-Banner in the Circuit Court of Marion County, Florida, alleging that the article was “libelous per se,” and that it had caused him “irréparable damages to his réputation, as an individual, public officer, candidate for public office and as a businessman.” He asked $50,000 as compen-satory damages and $500,000 as punitive damages. At the trial, the newspaper did not deny that the story was wholly false as to the respondent, and explained the error as the resuit of a “mental aberration” by one of the paper’s area editors. The area editor had been working for the paper for a little more than a month. He testified that he had run several stories about the political activities of the respondent, but had never heard of his brother James. When a local reporter telephoned in the story, correctly identifying the protagonist as James Damron, he inadvertently changed the name. The respondent presented evidence tending to east doubt on this explanation. At the close of the evidence, the respondent moved for a directed verdict on the issue of liability, and the trial judge granted the motion. The case then went to the jury on the issue of damages, with instructions which included the foliowing: “The Court instructs the Jury that you need not consider whether a libel has been committed and instructs you that there must be a finding in favor of the Plaintiff in accordance with the other instructions given you by the Court. ... You are instructed that in this case the charge made against the Plaintiff was libelous, per se, and that it created a presumption of damage to the Plaintiff but that 298 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. if this presumption of damage is overcome by evidence offered by the parties and there is no proof of general damage to the Plaintiff by a prépondérance of the evidence, then you cannot award any-thing more than nominal damages to the Plaintiff. The Court instructs the Jury that if you believe from the evidence and by the instructions of the Court that the Plaintiff is entitled to recover from the Défendants, then in addition to any compensa-tory damages, if any, that he may hâve—may recover, you may, as hereinafter stated, award the Plaintiff punitive damages when malice is shown or implied. . . . The Court instructs the Jury that malice may be implied or inferred where the charge of a felony is imputed to the Plaintiff. In other words, if you are reasonably satisfied from the evidence that the Défendants imputed the charge of per jury to the Plaintiff, of which he was not guilty, then you may infer that it was maliciously made and it is not necessary to prove any express malice or ill-will in order to warrant a verdict for punitive damages in favor of the Plaintiff.” The jury awarded Damron compensatory damages of $22,000 but failed to award any punitive damages. The Star-Banner moved for a new trial, arguing that the case should hâve been sent to the jury under the “actual malice” test laid down by this Court in New York Times Co. v. Sullivan, 376 U. S. 254. The trial judge denied the motion on the ground that New York Times and later cases “relating to public officiais or public figures in the official conduct of their office or position are not applicable to this cause of action which was founded upon a newspaper publication of the Défendants which was libelous per se and made no reference to the public offices held or sought by the Plaintiff.” The OCALA STAR-BANNER CO. v. DAMRON 299 295 Opinion of the Court Florida District Court of Appeal affirmed the judgment, holding that: “An examination of the defamatory publication which gave rise to this case reveals that the plain-tiff’s official conduct or the manner in which he performed his duties were not the basis for the inaccuracy here involved; and, hence, it does not corne within the protection afforded by the rule announced in the New York Times case. It foliows therefore that the trial judge correctly held that it was unnecessary for the plaintiff to show malice.” 221 So. 2d 459, 461. The Suprême Court of Florida refused to review the judgment, 231 So. 2d 822, and we granted certiorari to consider the fédéral constitutional issues presented.3 397 U. S. 1073. As the mayor of Crystal River, the respondent Leonard Damron was without question a “public official” within the meaning given the term in New York Times Co. v. Sullivan, supra. As such, he clearly fell within the rule that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. In his status as a candidate for the office of county tax assessor, he fell within the same rule. Monitor Patriot Co. v. Roy, ante, p. 265. 3 The respondent’s argument that the newspaper “admitted liabil-ity” at trial, and that the constitutional issue of the applicability of New York Times Co. v. Sullivan, 376 U. S. 254, is therefore not properly before us, must be rejected since both the trial court on motion for new trial and the state appellate court considered and passed upon the constitutional question as though properly raised. WHYY v. Glassboro, 393 U. S. 117, 119; Raley v. Ohio, 360 U. S. 423, 436; Manhattan Lije Ins. Co. v. Cohen, 234 U. S. 123, 134. 300 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Yet it is clear that the New York Times test was not applied in the trial of this case. The trial judge himself resolved the issues of publication and falsehood against the newspaper. He then instructed the jury that since the article was “libelous, per se,” its only task was to détermine damages. Since the respondent was permitted to recover without a finding that the newspaper either knew the article was false or published it in reckless disregard of its truth or falsity, the judgment must be reversed unless there is some basis for saying that the rule of New York Times does not apply to the particular libel in question. Henry v. Collins, 380 U. S. 356; Curtis Publishing Co. v. Butts, 388 U. S. 130, 142-143, 158 (opinion of Harlan, J.) ; Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6. The respondent urges upon us that a basis for dis-tinguishing New York Times does exist, because the rule of that case applies only to “official conduct,” 4 and a charge of indictment for perjury committed during testimony in a fédéral civil rights suit is a purely “pri-vate” libel. This contention is disposed of by our decision today in Monitor Patriot Co. v. Roy, supra. In that case we held that a charge of criminal conduct against an official or a candidate, no matter how remote in time or place, is always “relevant to his fitness for office” for purposes of applying the New York Times rule of know-ing falsehood or reckless disregard of the truth. Public discussion about the qualifications of a candidate for elective office présents what is probably the strongest possible case for application of the New York Times 4 New York Times Co. v. Sullivan, 376 U. S. 254, 283 n. 23. Both the trial judge on motion for new trial and the District Court of Appeal rested their conclusion that New York Times did not apply partly on the ground that the defamatory article nowhere mentioned the respondent’s status as mayor of Crystal River or as a candidate for county tax assessor. The respondent has not pur-sued that theory here. OCALA STAR-BANNER CO. v. DAMRON 301 295 White, J., concurring rule. And under any test we can conceive, the charge that a local mayor and candidate for a county elective post has been indicted for per jury in a civil rights suit is relevant to his fitness for office. Cf. Garrison N. Louisiana, 379 U. S. 64, 77. The First and Fourteenth Amendments require reversai of the judgment. The case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [For separate opinion of Mr. Justice Black, see ante, p. 277.] Mr. Justice White, concurring.* Inevitably, New York Times Co. v. Sullivan, 376 U. S. 254 (1964), by imposing on libel and slander plaintiffs the burden of showing knowing or reckless falsehood in speci-fied situations will resuit in extending constitutional protection to lies and falsehoods which, though neither knowing nor reckless, do severe damage to Personal réputation. The First Amendment is not so construed, however, to award merit badges for intrepid but mistaken or careless reporting. Misinformation has no merit in itself; standing alone it is as antithetical to the purposes of the First Amendment as the calculated lie. Garrison v. Louisiana, 379 U. S. 64, 75 (1964). Its substance contributes nothing to intelligent decisionmaking by citizens or officiais; it achieves nothing but gratuitous injury. The sole basis for protecting publishers who spread false information is that otherwise the truth would too often be suppressed. That innocent falsehoods are sometiines protected only to ensure access to the truth has been noted before, St. Amant v. Thompson, 390 U. S. 727, 732 (1968), and it is well that the thought is re-peated today in Time, Inc. v. Pape, ante, p. 279, at 292. *This opinion applies also to No. 62, Monitor Patriot Co. v. Roy, ante, p. 265. 415-649 0 - 72 - 25 302 OCTOBER TERM, 1970 Syllabus 401 U. S. RAMSEY ET AL., DBA LEON NUNLEY COAL CO., et al. v. UNITED MINE WORKERS OF AMERICA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 88. Argued December 7, 1970—Decided February 24, 1971 Petitioner coal mine operators brought this Sherman Act conspiracy action against respondent union alleging that respondent had expressly or impliedly agreed with the major producers to impose the provisions of the 1950 National Bituminous Coal Wage Agree-ment (NBCWA) on ail coal mine operators, knowing that the smaller ones would be unable to meet the NBCWA terms and would be driven out of business. Petitioners based their express-agreement claim on a later amendment, the Protective Wage Clause (PWC), whereby respondent undertook not to enter into any agreement with other operators on a basis other than the NBCWA, and their implied-agreement claim on the PWC and subséquent activities of respondent and the major operators. Following a trial, the trial judge dismissed the case for failure of proof, finding that the PWC did not constitute an express commitment by respondent not to bargain with other operators except on NBCWA terms but that, ail evidence considered, an implied commitment to do so would be inferred if the applicable standard of proof were the preponderance-of-the-evidence standard ordinarily applied in civil cases. He concluded, however, that where a labor union is involved, § 6 of the Norris-LaGuardia Act requires a standard of “clear proof,” both with respect to the authority of individuals alleged to hâve performed illégal acts on behalf of unions and with respect to whether the acts themselves occurred, amounted to a conspiracy, and had injured the plaintiff’s business. Section 6 provides that no organization participating in a labor dispute shall be liable for the unlawful acts of individual officers or members except upon “clear proof” of actual participation in or authorization of such acts. The District Court’s judgment was affirmed by an equally divided Court of Appeals. Petitioners additionally urge a construction of the PWC which would make it an illégal agreement for which respondent is not exempt under the antitrust laws, and they ask for reconsideration of the holding in Mine Workers v. RAMSEY v. MINE WORKERS 303 302 Syllabus Pennington, 381 U. S. 657, that a union is not liable under the antitrust laws when it concludes “a wage agreement with a multi-employer bargaining unit . . . and as a matter of its own policy, and not by agreement with ail or part of the employers of that unit, seek[s] the same wages from other employers.” Held: 1. The ordinary preponderance-of-the-evidence standard is applicable in civil antitrust actions against labor unions except with respect to proving the authority of individual members, officers, or agents of a union to perform on behalf of the union the acts complained of, where the “clear proof” standard applies. Pp. 307-311. 2. This Court cannot properly consider in the first instance petitioners’ additional argument about the construction of the PWC since it is not clear if the contention was made below and whether, in any event, the record supports it. Pp. 311-312. 3. The Court’s decision in Pennington is reaffirmed both with respect to the holding (1) that a union may make wage agree-ments with a multi-employer bargaining unit and in pursuit of its own self-interests seek to secure the same terms from other employers and (2) that the antitrust exemption is forfeited if the union agréés with an employer group to impose a certain wage scale on other bargaining units, thus joining a conspiracy to limit compétition. Pp. 312-314. 416 F. 2d 655, reversed and remanded. White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, and Blackmun, JJ., joined. Douglas, J., filed a dissenting opinion, in which Black, Harlan, and Marshall, JJ., joined, post, p. 314. John A. Rowntree argued the cause for petitioners. With him on the briefs were Clarence E. Walker, William M. Ables, Jr., Sizer Chambliss, and A. Allan Kelly. Edward Bennett Williams argued the cause for respondent. With him on the brief were Steven M. Umin, Edward L. Carey, Harrison Combs, Willard P. Owens, E. H. Ray son, and M. E. Boiarsky. Guy Farmer filed a brief for the Bituminous Coal Operators’ Association as amicus curiae urging affirmance. 304 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Mr. Justice White delivered the opinion of the Court. Petitioners, coal mine operators in southeastern Tennessee, were plaintiffs in the trial court, where their complaint accused respondent United Mine Workers of America of violating the Sherman Act by conspiring with various coal producers to drive petitioners out of business. The major thrust of the claim was that the Union had expressly or impliedly agreed with the major producers to impose the provisions of the National Bituminous Coal Wage Agreement (NBCWA), first executed by the Union and certain companies in 1950, on ail coal mine operators, knowing that small and nonmechanized operators would be unable to meet the contract’s terms. The purpose of this alleged conspiracy was to eliminate the marginal operators, control production, and reserve the market for larger concerns. The claim of express agreement rested on the so-called Protective Wage Clause (PWC) added to the NBCWA by amendment in 1958. The PWC, after reciting that the parties agreed that coal mines “shall be so operated as not to debase or lower the standards of wages, hours, safety requirements and other conditions of work, established by this contract,” provided as follows: “During the period of this Contract, the United Mine Workers of America will not enter into, be a party to, nor will it permit any agreement or under-standing covering any wages, hours or other conditions of work applicable to employées covered by this Contract on any basis other than those specified in this Contract or any applicable District Contract. The United Mine Workers of America will diligently perform and enforce without discrimination or favor the conditions of this paragraph and ail other terms and conditions of this Contract and will use and RAMSEY v. MINE WORKERS 305 302 Opinion of the Court exercise its continuing best efforts to obtain full compliance therewith by each and ail the parties signatory thereto.” 1 Petitioners in any event claimed that a conspiratorial arrangement between the Union and the major operators could be implied from the PWC, the course of negotia-tions between the Union and those operators from 1950 forward,2 and the ensuing organizational and strike activity against petitioners and other southeastern Tennessee operators aimed at securing agreement to and compliance with the National Agreement as amended from time to time, as well as from the Union’s purchase of a controlling interest in West Kentucky Coal Co. and the latter’s allegedly predatory pricing in the TVA coal market. 1 In return the operators agreed “that ail bituminous coal mined, produced, or prepared by them, or any of them, or procured or acquired by them or any of them under a subcontract arrangement” should be produced under terms and conditions which are as favorable to the employées as those provided for in this contract. In another case, Tennessee Consolidated Coal Co. v. UMW, 416 F. 2d 1192 (CA6 1969), the Court of Appeals stated that the Pro-tective Wage Clause was a “quid pro quo” for the foregoing under-taking of the operators which was described by the court as an agreement “to boycott coal not produced in conformity with the national agreement.” 416 F. 2d, at 1198. 2 The Bituminous Coal Operators Association (BCOA) was formed as a multi-employer collective-bargaining unit in 1950, just after signing of the 1950 NBCWA. Member employers ranged from the small to the large, though its members mined about 50% of U. S. bituminous coal. It formed a “negotiating committee” analogous to the UMW’s “policy committee,” to represent member employers at the bargaining table. Ramsey v. UMW, 265 F. Supp. 388, 407 (ED Tenn. 1967). Relations between union and management im-proved greatly during the 1950’s, leading petitioners to suggest that the absence of strife indicated the rise of the conspiracy. Id., at 407-408. 306 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Foliowing a trial to the court on a voluminous record, the trial judge wrote an extensive opinion containing his findings and conclusions leading to a dismissal of the case for failure of proof. Ramsey v. UMW, 265 F. Supp. 388 (ED Tenn. 1967). He interpreted the PWC as forbidding departure from the contract terms by the Union only where signatories were concerned; the court found nothing in the contract obligating the Union to insist on comparable terms when dealing with employers outside the bargaining unit. As for an implied con-spiracy to standardize employment terms throughout the industry aimed at destroying marginal producers, the trial court said that “[w]ere this case being tried upon the usual prépondérance of the evidence rule applicable to civil cases, the Court would conclude that the U. M. W. did so impliedly agréé,” but that “the standard of proof where a labor union is involved is ‘clear proof,’ as required by Section 6 of the Norris-LaGuardia Act, a standard different from the ordinary civil burden of persuasion.” 3 265 F. Supp., at 412. Judged by this stricter standard, proof of conspiracy was found wanting and the case against the Union failed. A panel of the Court of Appeals ruled the trial court had erred in applying the clear-evidence standard but rehearing en banc was granted. The Court of Appeals then agreed with the District Court’s construction of the PWC but with respect to the clear-evidence standard, four judges agreed with the trial judge and four disagreed. The latter insisted that the ordinary preponderance-of-evidence standard was applicable in civil antitrust actions against labor unions except with respect to proving the authority of individual members, ofîicers, and agents of 3 The court later said, “Did not the clear evidence rule apply, the Court might hâve reached a different conclusion upon certain issues.” 265 F. Supp., at 434. RAMSEY v. MINE WORKERS 307 302 Opinion of the Court the Union to perform the acts complained of on behalf of the Union. The District Court’s judgment was there-fore affirmed by an equally divided court. Ramsey N. UMW, 416 F. 2d 655 (CA6 1969). We granted certi-orari. 397 U. S. 1006 (1970). I In a section of his opinion entitled “Legal Guidelines,” the District Judge inquired as to “the standard of proof that must govern a proceeding involving a Sherman Act charge against a labor union.” His answer was: “The burden of proof borne by the plaintiff is not the usual prépondérance of the evidence rule applicable in civil cases generally. The requirement imposed by Section 6 of the Norris-LaGuardia Act is that of ‘clear proof’ where a labor organization is a party to an action such as this. . . . That the ‘clear proof’ standard applies to an action wherein a labor organization is sought to be charged with a Sherman Act violation appears settled.” 265 F. Supp., at 400. In this and other passages in the trial judge’s opinion,4 he apparently demanded clear proof rather than a prépondérance of the evidence not only with respect to the authority of the individuals who were alleged to hâve performed certain illégal acts on behalf of unions, but also as to whether the acts them-selves occurred, whether the acts proved amounted to a conspiracy and whether plaintiffs’ businesses had been injured. The eight judges of the Court of Appeals also seemed to read the trial court as having given un-limited application to the clear-proof standard in this action. Apparently they were also convinced that the standard applied by the trial court had made a critical différence in the case, for the issue that equally divided them was whether the clear-proof standard should be 4 See n. 3, supra, and accompanying text. 308 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. applied to any matters other than the Union’s authori-zation of the conduct alleged and proved.5 The reasoning of the lower courts in departing from the usual preponderance-of-evidence rule generally applicable to civil actions in fédéral courts6 was rooted in § 6 of the Norris-LaGuardia Act, 47 Stat. 71, 29 U. S. C. § 106. But the trial judge and four judges of the Court of Appeals read far too much into § 6, which provides as follows: “No officer or member of any association or organization, and no association or organization partici-pating or interested in a labor dispute, shall be 5 The Union urges not only that the trial court properly under-stood the limited scope of § 6 but also that on most if not ail sig-nificant issues the proof failed even under the preponderance-of-evi-dence rule. For the first proposition the Union relies on the trial judge’s instructions to the jury in a later case, which are reported in Tennessee Consolidated Coal Co. v. UMW, 416 F. 2d, at 1200-1203, and which are said to construe § 6 more narrowly. But we must décidé the case before us, not some other one in which the trial court may hâve evidenced different views. Here the Union’s claim is belied by the language of the trial court’s opinion and its interprétation by the eight judges of the Court of Appeals. The second proposition—that the trial court’s clear-evidence ruling was mere dictum—leaves unexplained the Court of Appeals’ affirm-ance by an equally divided court as well as the trial judge’s remarks that he would or might hâve reached different results on some issues, apparently including some aspects of the conspiracy issue, if prépondérance of the evidence was the governing standard. To what extent the proof would fail under the standard we here hold applicable and what legal différence it might make are matters open to be dealt with on remand. We do note from the trial court’s opinion that except for violence and some picketing, issues of union responsibility for acts alleged and proved were nonexistent or played little part in the thinking of the trial judge. 6 “In civil cases [the fact finder’s] duty is to weigh the evidence carefully, and to find for the party in whose favor it preponder-ates . . . .” LilienthaTs Tobacco v. United States, 97 U. S. 237, 266 (1878). RAMSEY v. MINE WORKERS 309 302 Opinion of the Court held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” Judge O’Sullivan cogently observed in the Court of Appeals that: “This is plain language which . . . clearly exposes the Section’s limitation.” 416 F. 2d, at 667. On its face § 6 is not addressed to the quantum of evidence required to prove the occurrence of the alleged “unlawful acts.” It is concerned only with requiring “clear proof” that the person or organization charged actually participated in, authorized, or ratified “such acts.” Nothing in the words of the section suggests that a new and different standard of proof was being prescribed for ail issues in actions against a union, its members or its officers involved in a labor dispute. The section neither expressly nor by implication requires satisfaction of the clear-proof standard in deciding factual issues concerning the commission vel non of acts by union officers or by members alleged to constitute a conspiracy, or the inferences to be drawn from such acts, or concerning overt acts in furtherance of the conspiracy, the impact on the relevant market or the injury to plaintiffs’ businesses. The legislative history of § 6 was reviewed at length in United Brotherhood of Carpenters v. United States, 330 U. S. 395 (1947). We hâve reviewed it again and we find nothing to suggest that the section means some-thing different from what its language seems to say.7 Without laboring the matter—since nothing to the con-trary in the legislative history has been presented to us— 7 As we noted in United Mine Workers v. Gibbs, 383 U. S. 715, 736 n. 26 (1966), the fullest statement concerning the basis and impact of § 6 is found in S. Rep. No. 163, 72d Cong., lst Sess., 19-21. 310 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. the simple concern of Congress was that unions had been found liable for violence and other illégal acts occurring in labor disputes which they had never author-ized or ratified and for which they should not be held responsible. Congress discerned a tendency in courts to blâme unions for everything occurring during a strike. Nor was the problem necessarily limited to labor unions.8 The straightforward answer was § 6, with its requirement that when illégal acts of any individual are charged against one of the major antagonists in a labor dispute— whether employer or union—the evidence must clearly prove that the individual’s acts were authorized or ratified. See id., at 403. We find no support in the legislative material for the notion that Congress intended broadly to modify the standard of proof where union and employer are sued separately or together in civil actions for damages incurred in the course of labor disputes. Prior cases in this Court relied on by the courts below are not to the contrary. Carpenters’ major concern was § 6. The Court there said that “[t]he limitations of that section are upon ail courts of the United States in ail matters growing out of labor disputes, covered by the Act, which may corne before them.” Id., at 401. The statement is unexceptionable—the fédéral courts, of course, must heed § 6 in ail cases arising out of labor disputes in which the section is applicable.9 However, the limitations the section imposes are those that the section describes. It is clear from the remainder of 8 “Moreover, it will be observed that this section . . . applies both to organizations of labor and organizations of capital.” Id., at 19. 9 The “more stringent standards” of § 6 were modified by Congress for purposes of the Labor Management Relations Act. United Mine Workers n. Gibbs, 383 U. S. 715, 736 (1966). See National Labor Relations Act, as amended, §2 (13), 61 Stat. 139, 29 U. S. C. §152(13); Labor Management Relations Act, 1947, §§301 (e), 303 (b), 61 Stat. 157, 159, 29 U. S. C. §§ 185 (e), 187 (b). RAMSEY v. MINE WORKERS 311 302 Opinion of the Court the Carpenters opinion that § 6 deals only with proving the authority of individuals or organizations who act for another. Indeed, the Court there reversed a judgment against a union because the trial court had failed to in-struct that illégal acts could not be proved against the union unless the evidence clearly showed the union had authorized, participated in, or ratified the commission of those acts. United Mine Workers v. Gibbs, 383 U. S. 715 (1966), insofar as it dealt with § 6, was concerned only with the failure of the evidence clearly to show union responsi-bility for illégal acts of violence. There was no suggestion in that case that § 6 had broader scope. And § 6 was not even involved in United Mine Workers v. Pen-nington, 381 U. S. 657 (1965), as it came to this Court. The section was neither cited nor discussed and there were no indications that our passing reference, 381 U. S., at 665, to forfeiture of union exemption from antitrust liability when union connivance with employers is clearly shown was intended to establish a stricter standard of proof in actions charging labor unions with violations of the Sherman Act. In our view, § 6 requires clear and convincing evidence only as to the Union’s authorization, participation in, or ratification of the acts allegedly performed on its behalf. Nor do we discern any basis for our fashion-ing a new standard of proof applicable in antitrust actions against labor unions. Accordingly, the District Court erred in requiring petitioners’ compliance with the standard of § 6 in proving other éléments of their treble-damage case against the Union. II Petitioners argue two other matters. We are urged to construe the PWC as itself being an illégal bargain for which the Union is not exempt under the antitrust 312 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. laws. The thrust of the argument in this Court is that by 1958, when the PWC was first agreed to by the Union and the BCOA, the Union had executed the national contract with hundreds of different bargaining units in addition to those represented by the BCOA. Even if the PWC bound the Union only to insist on identical contract terms as against “signatories,” the effect of the clause, it is urged, was to bind the Union to the same contract, ad infinitum, with many and different bargaining units; the Union was no longer free to agréé to different terms with any previous signatory to the NBCWA.10 We find no reference to this aspect of the case in the opinions in the District Court and the Court of Appeals. We are unsure whether it was pre-sented below and whether, in any event, there is record support for it. Accordingly, we deem it inappropriate to consider it in the first instance. Finally, petitioners in effect ask us to reconsider our holding in Pennington and other cases that under the Clayton and Norris-LaGuardia Acts the Union incurs no liability under the antitrust laws when it concludes “a 10 From the opinion of the District Court it appears that George Ramsey, one of the petitioners, “was a signatory to the National Bituminous Coal Wage Agreement from the time he began operations [in 1954] until 1960. In 1958 he was sued by the Welfare Fund for non-payment of royalties and the following two years his payments to the Welfare Fund exceeded his profits. In fact, he lost money in 1960. In that year his employées withdrew from the U. M. W. and joined the Southern Labor Union and he termi-nated his U. M. W. contract.” 265 F. Supp., at 428. Other com-panies refused to sign the National Contract and negotiated for modifications. “[O]n December 26, 1962, the miners in most of the Southeastern Tennessee coal field ceased working. . . . While it does not appear that the U. M. W. called the strike, it is clear that it sanctioned and approved the strike.” Ibid. RAMSEY v. MINE WORKERS 313 302 Opinion of the Court wage agreement with the multi-employer bargaining unit . . . and . . . as a matter of its own policy, and not by agreement with ail or part of the employers of that unit, seek[s] the same wages from other employers.” 381 U. S., at 664. This we décliné to do. The Court made it unmistakably clear in Allen Bradley Co. v. Union, 325 U. S. 797, 811 (1945), that unilatéral conduct by a union of the type protected by the Clayton and Norris-LaGuardia Acts does not violate the Sherman Act even though it may also restrain trade. “[T]hese congres-sionally permitted union activities may restrain trade in and of themselves. There is no denying the fact that many of them do so, both directly and indirectly.” But “the desirability of such an exemption of labor unions is a question for the détermination of Congress.” 325 U. S., at 810. We adhéré to this view. But neither do we retreat from the “one line which we can draw with assurance that we follow the congressional purpose. We know that Congress feared the concentrated power of business organizations to dominate markets and prices. ... A business monopoly is no less such because a union participâtes, and such participation is a violation of the Act.” Id., at 811. Hence we also adhéré to the decision in Pennington: “[T]he relevant labor and antitrust policies compel us to conclude that the alleged agreement between UMW and the large operators to secure uniform labor standards throughout the industry, if proved, was not exempt from the antitrust laws.” 381 U. S., at 669. Where a union, by agreement with one set of employers, insists on main-taining in other bargaining units specified wage standards ruinous to the business of those employers, it is liable under the antitrust laws for the damages caused by its agreed-upon conduct. 314 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. So ordered. Mr. Justice Douglas, with whom Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice Marshall con-cur, dissenting. This phase of this protracted litigation involves quite a different problem than the one presented in United Mine Workers v. Pennington, 381 U. S. 657. Pennington involved the question whether § 20 of the Clayton Act, 38 Stat. 738, and § 4 of the Norris-LaGuardia Act, 47 Stat. 70, under the complaint there made exempted the United Mine Workers from liability under the antitrust laws. That was recognized as the single issue. Id., at 661-666. The Court said, “[W]e think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units.” Id., at 665. The question in this case involves not the scope of the exemption but whether the Sherman Act has been vio-lated. As we said in Apex Hosiery Co. v. Leader, 310 U. S. 469, 512, “[A]ctivities of labor organizations not immunized by the Clayton Act are not necessarily violations of the Sherman Act.” A union-employer agreement to force other employers out of business causes the union to lose its exemption. But the fact that a union may be sued under the Sherman Act does not mean that it is necessarily liable. The question in the présent case is, indeed, only one phase of the alleged Sherman Act violation. It solely concerns the kind of proof needed. RAMSEY v. MINE WORKERS 315 302 Douglas, J., dissenting This phase of the litigation turns on the meaning of § 6 of the Norris-LaGuardia Act, 47 Stat. 71, 29 U. S. C. § 106, which provides: “No officer or member of any association or organization, and no association or organization par-ticipating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” The Court says that : “On its face § 6 is not addressed to the quantum of evidence required to prove the occurrence of the alleged ‘unlawful acts.’ ” I respectfully disagree. Unions usually act through officers, members, or agents, not as a body. Their liability is therefore vicarious; and Congress was anxious to safeguard, curtail, and limit it. The “clear proof” required was not restricted to “clear proof” of authority to act or “clear proof” of agency or “clear proof” of other “authorization.” The “clear proof” was “clear proof” of authority to commit “the unlawful acts.” The “clear proof” required was “clear proof” of “actual participation” in the “unlawful acts.” The “clear proof” required was “clear proof” of the “ratification” of the “unlawful acts.” Authorization to perform those “unlawful acts” like ratification of them or participation in them must, if § 6 is to ,be given full vitality, be based on “clear proof” that the union had full complicity in the scheme.1 It is in 1 That was our construction of § 6 in United Brotherhood of Car-penters v. United States, 330 U. S. 395, 410-411. That construction provoked Mr. Justice Frankfurter to say in dissent: “Practically 316 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. my view a drastic rewriting of § 6 to conclude as does the Court that: “The straightforward answer was § 6, with its requirement that when illégal acts of any individ-ual are charged against one of the major antagonists in a labor dispute—whether employer or union—the evidence must clearly prove that the individual’s acts were au-thorized or ratified.” United Mine Workers and BCOA (Bituminous Coal Operators Association) entered into an industry-wide wage agreement in 1958 which provided wage scales for employées of ail “signatory operators” of coal lands or leases. It is argued that this agreement constituted an agreement by United Mine Workers to impose the wage scale on ail nonsignatory coal operators in order to force some (including petitioners) out of business. If that was the agreement then, as I said in Pennington (381 U. S., at 674), the union would hâve lost its exemption. But there is not a word in the agreement, as I read it, that covers nonsignatory operators. speaking, the interprétation given by the Court to § 6 serves to immunize unions, especially the more alert and powerful, as well as corporations involved in labor disputes, from Sherman Law liability. To insist that such is not the resuit intended by the Court is to deny the practical conséquences of the Court’s ruling.” Id., at 422. Yet, as S. Rep. No. 163, 72d Cong., lst Sess., 19, said respect-ing § 6 : “Opposition to this section has been voiced on the ground that it seeks to establish a ‘new law of agency.’ In the first place, this section is concerned especially with establishing a rule of evidence. There is no provision made relieving an individual from responsibility for his acts, but provision is made that a person shall not be held responsible for an ‘unlawful act’ except upon ‘clear proof’ of participation or authorization or ratification.” And see H. R. Conf. Rep. No. 793, 72d Cong., lst Sess., 6; H. R. Conf. Rep. No. 821, 72d Cong., lst Sess., 6. RAMSEY v. MINE WORKERS 317 302 Douglas, J., dissenting It is, however, contended that even though there is no express commitment to drive marginal operators out of business, there was a conspiracy between BCOA and United Mine Workers to impose a wage scale upon the total industry which had the purpose and effect of driv-ing the small, marginal operators out of business. On this issue of the case, Judge Wilson of the District Court ruled: “Were this case being tried upon the usual prépondérance of the evidence rule applicable to civil cases, the Court would conclude that the U. M. W. did so impliedly agréé. However, the standard of proof where a labor union is involved is ‘clear proof,’ as required by Section 6 of the Norris-LaGuardia Act, a standard different from the ordinary civil burden of persuasion. United Brotherhood of Car-penters v. United States, 330 U. S. 395 ... ; United Mine Workers v. Gibbs, 383 U. S. 715 .... The Court is of the opinion that the evidence upon the record in this case does not establish such clear and unequivocal proof as to warrant the Court in finding that the U. M. W. pursued its policy of uni-formity of wage and labor standards by agreement with one or more employers, as distinguished from pursuing such policy upon its own. The only direct evidence in the record is to the effect that the Union pursued such policy upon its own, and not in agreement with any employer.” 265 F. Supp. 388, 412. The action of United Mine Workers officiais in agreeing to the wage clause was the action of fully authorized agents. If that is ail that the “clear proof” of § 6 re-quires, the case would be easy. For then it would be immaterial whether “clear proof” of an illégal purpose 415-649 0 - 72 - 26 318 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. or “prépondérance of the evidence” were the test, for whichever were required, there would be no différence. If therefore “clear proof” is to set labor-antitrust cases apart from the rest—as it clearly was designed to do—it must embrace a union program to impose a wage scale on the entire industry with the purpose and efïect of driving the small, marginal operators out of business. Judge Wilson of the District Court and eight members of the Court of Appeals hâve reviewed the evidence in detail. While they agréé that a case against the union has been made out if “prépondérance of the evidence” is the test, none has suggested that the “clear proof” test has been satisfied if it is to mean more than “clear proof” of an agency relation. In United Mine Workers v. Gibbs, 383 U. S. 715, 739, we spoke of the efïect of § 6 in a case where the union is charged with the damages flowing from violence: “What is required is proof, either that the union approved the violence which occurred, or that it participated actively or by knowing tolérance in further acts which were in themselves actionable under state law or intentionally drew upon the previ-ous violence for their force.” If in Gibbs union officiais were authorized to talk with employers and to protest certain issues that threatened the union’s interests, would the union be liable if the protest became so heated that it erupted into violence? Certainly not. Authorization to use dynamite in the protest would be “clear proof”; authorization to carry dynamite for a lawful purpose would certainly not be “clear proof” of the authorization to use the dynamite to destroy an employer’s business. In the présent case, authorization of union officiais to use their best efforts to get an industry-wide wage scale RAMSEY v. MINE WORKERS 319 302 Douglas, J., dissenting does not necessarily include authorization to drive some employers out of business. As Mr. Justice Goldberg pointed out in Méat Cutters v. Jewel Tea, 381 U. S. 676, 697 et seq., there is obviously nothing illégal per se about industry-wide collective bargaining.2 A particular agreement becomes vulnérable under the antitrust laws only if there is “clear proof” that the purpose of the union 3 2 Mr. Justice Goldberg said: “This history also shows that labor contracts establishing more or less standardized wages, hours, and other terms and conditions of employment in a given industry or market area are often secured either through bargaining with multi-employer associations or through bargaining with market leaders that sets a ‘pattern’ for agreements on labor standards with other employers. These are two similar Systems used to achieve the identical resuit of fostering labor peace through the negotiation of uniform labor standards in an industry.” 381 U. S., at 722. 3 In the prior Congress a measure like § 6 was introduced. It is described in S. Rep. No. 1060, pt. 2, 71st Cong., 2d Sess., 18-19: “[W]hy should an officer of a labor union, who has specifically advised members that violence must be avoided, become responsible for the hot-headed action of some member in perhaps assaulting a strike breaker? Again, the relationship between officers and members of labor unions and other members is not that of employer and employée. The officers chosen by a union are not employers of the membership. They hâve no control over their associâtes based upon the power of determining whether or not they will employ them. It may be accepted that if a group associated in common activities becomes controlled by a lawless majority, it may be necessary for law-abiding men to dissolve their association with lawbreakers; but the doctrine that a few lawless men can change the character of an organization whose members and officers are very largely law-abiding is one which has been developed peculiarly as judge-made law in labor disputes, and it is high time that, by legislative action, the courts should be required to uphold the long established law that guilt is personal and that men can only be held responsible for the unlawful acts of associâtes because of participation in, authorization or ratification of such acts. As a rule of evidence, clear proof should be required, so that criminal guilt and criminal responsibility should not be imputed but proven beyond reasonable doubt in order to impose liability.” 320 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. was not to advance the coal miners’ interests but to do in one or more operators. By the same reasoning we should ask here: Was there “clear proof” that the union approved a plan to drive small, marginal operators out of business? Since on this record no one has suggested that there is such “clear proof,” the judgment of the District Court should be affirmed. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 321 Syllabus ZENITH RADIO CORP. v. HAZELTINE RESEARCH, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 80. Argued November 10, 1970—Decided February 24, 1971 Respondent (HRI) brought a patent infringement suit against petitioner (Zenith) in 1959, and in 1963 Zenith counterclaimed for damages alleging violations of the Sherman and Clayton Acts by HRI’s participation in patent pools in Canada, Great Britain, and Australia, restricting Zenith’s operations in those countries. A year after evidence was closed, the trial judge entered preliminary findings of fact and conclusions of law favoring Zenith. HRI then moved to amend its reply to the counterclaim and to reopen the record for taking additional evidence. HRI sought to assert defenses of the statute of limitations, and release, claiming that part of the damages awarded Zenith for 1959-1963 were caused by pre-1959 conduct and thus barred by the statute of limitations, or were barred by a 1957 release given by Zenith to certain American companies in settlement of a civil treble-damage action. The trial judge permitted the defenses to be filed but refused to reopen the record or modify his findings and conclusions concerning the Canadian market. The Court of Appeals reversed on the ground that Zenith had failed to prove injury to its business. This Court reversed with respect to Canada, holding that there was ample evidence of damage in the Canadian market and noting that the trial judge had either rejected the limitations and release defenses on the merits or deemed them waived, 395 U. S. 100. On remand the Court of Appeals held that the trial judge erroneously rejected the defenses on their merits. That court, while doubting that Zenith’s claim that the statute of limitations was tolled (by reason of a Government antitrust suit pending from 1958 to 1963 against various companies participating along with HRI in the Canadian patent pool), was properly before it, since no formai plea had been entered, rejected the tolling argument, concluding that tolling takes place only with respect to parties to a Government suit and HRI was not such a party. The court further ordered evidence to détermine the extent of réduction of damages by virtue of the defenses it sustained. Held: 1. Under the circumstances of this case, the trial judge did not abuse his discrétion if his rejection of the limitations and release 322 OCTOBER TERM, 1970 Syllabus 401 U. S. defenses was based on HRI’s waiver due to untimeliness of their présentation. Pp. 328-333. 2. The Court of Appeals erroneously rejected Zenith’s claim that the statute of limitations was tolled during the pendency of the Government’s antitrust suit against the other participants in the patent pool. Pp. 333-338. (a) Where, as here, a plaintiff has no reason to anticipate that a claim of limitations will be raised against him, he need not set forth his claim of tolling until the limitations claim is raised. P. 334. (b) Under 28 U. S. C. § 16 (b) the statute of limitations is tolled against ail participants in a conspiracy that is the object of a Government suit, whether or not they are named as défendants or conspirators therein. Pp. 335-338. 3. A plaintiff in an antitrust action may recover damages occur-ring within the statutory limitation period that are the resuit of conduct occurring prior to that period if, at the time of the conduct, those damages were spéculative, uncertain, or otherwise incapable of proof. Pp. 338-342. 4. The effect of a release upon coconspirators is to be deter-mined in accordance with the intention of the parties, and here HRI, which was neither a party to the 1957 release nor a parent or subsidiary of a party, is not entitled to the benefit of the release, as the agreement to exchange releases provided expressly that they were “to bind or benefit” the party and “the parent and subsidiaries of the party giving or receiving such release.” Pp. 342-348. 418 F. 2d 21, reversed and remanded. White, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Douglas, Brennan, Marshall, and Blackmun, JJ., joined. Harlan, J., filed an opinion concurring in the resuit, in which Stewart, J., joined, post, p. 349. Thomas C. McConnell argued the cause for petitioner. With him on the briefs were Philip J. Curtis and Francis J. McConnell. Victor P. Kayser argued the cause for respondent. With him on the briefs were John T. Chadwell, C. Lee Cook, Jr., Joseph V. Giffin, Robert F. Ward, and Laurence B. Dodds. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 323 321 Opinion of the Court Mr. Justice White delivered the opinion of the Court. This is the second time this marathon litigation has been before us. It began in 1959 as a suit for patent infringement brought by Hazeltine Research, Inc. (here-after HRI), against Zenith. In 1963, Zenith filed a counterclaim against HRI alleging violations of the Sherman and Clayton Acts, as amended, 26 Stat. 209, 38 Stat. 731, 737, 15 U. S. C. §§ 1, 2, 15, 26, by reason of HRI’s participation in patent pools in Canada, Great Britain, and Australia. These pools, it was claimed, operated to exclude Zenith from those for-eign markets by refusing to grant patent licenses to American manufacturers seeking to export American-made radio and télévision sets. Trial was had without a jury. Zenith submitted telling evidence as to the existence and operation of the conspiracy and HRI’s participation in each of the markets. Zenith demon-strated the fact and extent of its business injury by estimating the percentage of the foreign market it would hâve enjoyed absent the conspiracy during the four years prior to 1963 and showing the portion it actually enjoyed during those years. The différence between the profits it actually made and the profits it would hâve made in a free market during the four years was the measure of the damages demanded. A year after evidence was closed, the trial judge entered preliminary findings of fact and conclusions of law favoring Zenith. He concluded that Zenith had been damaged $6,297,371 in the Canadian market, $9,248,926 in the English, and $692,555 in the Australian, a total of $16,238,872 before trebling. HRI then moved to amend its reply to Zenith’s counterclaim and to reopen the record for the taking of additional evidence. The motion sought leave to assert the defenses of limitations and release; the claim was that part or ail of the dam- 324 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. âges awarded to Zenith for the four years 1959-1963 were caused by pre-1959 conduct and to that extent were barred by the statute of limitations, 15 U. S. C. § 15b, or by a release given by Zenith to certain American companies in 1957. HRI also sought leave to prove that until specified dates Zenith’s exclusion from the English and Australian markets had been due, not to the operation of the alleged patent pools, but to such matters as official embargoes, tariffs, and technical factors. The trial judge agreed to take additional evidence with respect to England and Australia but refused to reopen the record for other purposes or to modify his findings and conclusions concerning the Canadian market. He did, however, permit the limitations and release defenses to be filed and, after hearing evidence with respect to the English and Australian markets, reduced his award of damages with respect to them. 239 F. Supp. 51 (1965). In the Court of Appeals, HRI asserted error on vari-ous grounds. Putting aside other issues, the Court of Appeals reversed on the ground that Zenith had failed to prove in jury to its business in any of the three markets. 388 F. 2d 25 (1967). We, in turn, affirmed the judgment denying recovery for the alleged in jury in the English and Australian markets, but reversed with respect to Canada, holding that Zenith’s evidence amply demon-strated the fact of damage in the Canadian market. 395 U. S. 100 (1969). We also noted that some portion of the damages proved and awarded resulted from conspira-torial conduct prior to 1959 and that the trial judge had either rejected on the merits the defenses of limitations and release or deemed them waived. Id., at 117 n. 13. We went no further, however, with respect to the issues surrounding either defense. The Court of Appeals on remand accepted as duly proved that absent the conspiracy Zenith would hâve ZENITH RADIO CORP. v. HAZELTINE RESEARCH 325 321 Opinion of the Court enjoyed a 16% share of the Canadian market and that the différence between 16% and the share it actually had was the measure of the total damages inflicted by the conspiracy during the four years 1959-1963. But recognizing that some portion of Zenith’s business in jury resulted from conspiratorial conduct prior to 1959, the court went on to hold that the trial judge had not rejected the defenses of limitations and release on waiver grounds but had erroneously rejected them on their merits, and further that Zenith’s claim that the statute had been tolled had been waived by Zenith and was in any event unsound. Finally, the court ordered further evidence to be taken in the trial court to détermine the extent to which, if any, the damages awarded by the trial court should be reduced by virtue of the defenses sustained in the Court of Appeals. 418 F. 2d 21 (1969). We granted certiorari. 397 U. S. 979 (1970). Zenith’s principal contentions here are that the trial judge properly deemed the limitations and release defenses to hâve been waived, that if not waived, the defenses were without merit, and that in any event the statute of limitations was tolled by the pendency of a Government suit against HRI’s coconspirators. We need not décidé whether the trial judge held the defenses waived or rejected them on the merits, since in our view, either course would hâve been legally sound. We therefore reverse the Court of Appeals. I We deal first with Zenith’s claim that the defenses of limitations and release were properly held by the trial court to hâve been waived. To do so it is essential briefly to outline the course of the trial and evidence. Zenith’s 1963 counterclaim alleged the existence of the conspiracy and the impact on its business and prayed for damages and injunctive relief, but made no allégations as to the time period as to which damages were sought. 326 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. These latter matters became clear during the pretrial proceedings and during the course of the trial itself. In its pretrial brief and opening statement Zenith asserted that the illégal pools had existed for many years; that Zenith had conspiratorially been refused a license to import into Canada; and that litigation had been threatened and potential distributors discouraged. The conspiracy was said to hâve been not only a longstanding but also a worldwide one, against certain members of which the United States Government had brought an antitrust action and Zenith itself had recovered $10,000,000 in 1957 in settlement of a civil treble-damage action. But Zenith disclosed that, although the conspiracy had been worldwide and long existing, it would seek to recover damages for restraint of its trade in the three foreign markets only during the “four-year statutory damage period.” At trial Zenith introduced voluminous evidence with respect to the operations of the conspiracy and its impact on its business. The testimony with respect to Canada was that in a free market Zenith would hâve had the same share of the Canadian market as it enjoyed in the United States and that the existence and operation of the conspiracy had restricted its Canadian business. Specifically, Zenith claimed that in the four years after June 1, 1959, it had lost profits aggregating some $6,300,000 as the resuit of conspiratorial conduct by the Canadian patent pool during and prior to that period. Counsel made Zenith’s position perfectly clear in his summation and post-trial brief : except for the Canadian pool, Zenith would hâve had a 16% share of the Canadian market, but as a resuit of the pool it had only a 3% share. Zenith thus argued that it was entitled to the full différence between 16% and 3% for the entire four-year period. It also made similar daims with respect to the English and Australian markets. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 327 321 Opinion of the Court Although Zenith’s counterclaim on its face sought to recover ail damages suffered in past years without restriction,1 HRI pleaded neither limitations nor release in its reply to the counterclaim. Zenith instead revealed its own awareness of the statutory limitation period during the trial and expressly restricted its proof to damages suffered during the statutory four-year damage period. However, Zenith sought to recover ail damages suffered during those years even though it was unmistakably clear that some of this damage had been caused by conspirato-rial action prior to 1959. Yet, at no time during the trial did HRI suggest that the statute barred Zenith’s recovery of any part of its total damage suffered during that period. HRI did challenge Zenith’s claim that it would hâve had a 16% share of the Canadian market on the ground that the evidence was spéculative—indeed, that it was so spéculative that Zenith had failed entirely to sustain its burden of proving damage, but it interposed no objection to Zenith’s demand for ail damages sustained during the four-year period, no matter when the operative acts had occurred. Not until one year after trial, when it learned that the judge’s findings and conclusions were unfavorable, did HRI assert that part of the post-1959 damage was the resuit of pre-1959 conduct and was barred either by the statute of limitations or by the 1 It is true that in its motion for leave to file its counterclaim, Zenith stated that the counterclaim arose out of conduct of HRI “occurring since the filing of the answer” in 1960. On the basis of this statement, HRI argues that Zenith precluded itself from recover-ing damages resulting from pre-answer conduct. This argument is not persuasive. The counterclaim itself was not so limited, and Zenith made its position on damages absolutely clear by the opening of trial. HRI was thereby given both ample notice of the substance of Zenith’s claim and ample opportunity to respond, but made no effort during trial to do so. 328 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. release given by Zenith in 1957 in settlement of its suit against other American companies.2 Other than a general attack on the sufficiency of Zenith’s proof of damages and a demand that the matter be relitigated, HRI’s post-trial motion had three principal branches. First, it sought leave to file the defense of limitations. The motion in effect asserted that the con-spiracy, even if it had continued during the damage period, had committed no damaging overt acts during that period, ail of Zenith’s damage being caused by pre-1959 operations of the pool. HRI asserted as a legal matter that the statute of limitations would therefore bar Zenith’s entire claim on the record then before the Court. Second, HRI sought to interpose the defense of release. The argument was that some or ail of Zenith’s post-1959 damages were the conséquence of pool activity occurring prior to the date of a 1957 release given to American companies which were coconspirators of HRI in the Canadian pool. That release, it was claimed, also released HRI. Third, HRI sought to reopen the record to show that until well into the four-year damage period Zenith’s inability to enter the English and Australian markets was due to official embargoes, other governmental policies and technical difficulties rather than to the operations of the patent pools. The motion was thoroughly and extensively argued. With respect to the defenses of limitations and release, 2 Zenith similarly limited its claim for damages in the English and Australian markets to the years 1959-1963 and similarly sought to recover ail damages suffered in those years without regard to the date of the conduct causing the damages. HRI again did not plead or argue that Zenith was not entitled to its full damages during those years in the two markets, until it moved after trial to set aside the judge’s findings and to reopen the proof so that it could show that Zenith’s exclusion from the markets prior to 1959 was a conséquence of governmental restrictions and technical difficulties rather than of pool conduct. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 329 321 Opinion of the Court the trial court’s ruling, after Zenith objected to them as being “too late,” was expressed as follows: “Well, the record will show that leave is given to file them at this time, after proofs are closed and after findings hâve been made.” 3 This ruling was immediately followed by the court’s refusai either to reopen the record for additional evidence with respect to Canada or to modify its judgment in any way as to that market. The record as to England and Australia, however, was reopened for further proof as to the operative forces other than the patent pools which in fact had prevented importation of Zenith’s Products into those markets. Arguably, since the trial judge permitted the limitations and release defenses to be filed but then rejected them by refusing to amend the judgment with respect to Canada, rejection was necessarily on the merits. But the record also yields to the construction that the two defenses were overruled because a just and sensible ruling on their merits would hâve required a reopening of the record for a virtual retrial of the issue of damages, an eventuality which the trial court deemed unwarranted in view of HRI’s delinquency in raising the defenses. If this was the course the trial judge took, we would not disturb his judgment. At the time of the trial Rule 8 (c) of the Fédéral Rules of Civil Procedure required that “[i] n pleading to a pre-ceding pleading, a party shall set forth affirmatively . . . release . . . statute of limitations . . . and any other matter constituting an avoidance or affirmative defense.” Rule 12 (h) at that time provided that “[a] party waives ail defenses and objections which he does not présent” 3 The District Court gave HRI five days to file its amendments to the pleadings “nunc pro tune as of” the date of the argument on HRI’s motion. As a resuit, the defenses were technically filed prior to the entry of judgment and the taking of appeal, while the District Court still retained jurisdiction over the suit. 330 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. either by motion or in answer or reply. Based on these rules, Zenith claims that the trial court was required to, and did, hold the two defenses waived. HRI contends that the District Court should hâve granted it leave to amend its answer under Rule 15 (a), which provides that such “leave shall be freely given when justice so requires.” HRI’s position is that the evidence in the record at the time it offered its defenses showed that ail of the acts causing damage during the 1959-1963 period had occurred prior to 1959; from this it follows that Zenith had failed, according to HRI, to offer any evidence upon which an award of damages could hâve been sustained. In the alternative, HRI argues that the record showed that it had been released from ail liability for damages flowing from pre-1957 acts.4 In either case, HRI urges that the damage award be set aside. It is settled that the grant of leave to amend the pleadings pursuant to Rule 15 (a) is within the discrétion of the trial court. Foman v. Davis, 371 U. S. 178, 182 (1962) (dictum). In a matter as substantial and com-plex as this one, where HRI claimed it had been misled or at the very least asked to be relieved of mistake or over-sight, it might hâve been within the discrétion of the trial judge to hâve permitted HRI to amend its pleadings to include therein the defenses of limitations and release. But, in deciding whether to permit such an amendment, 4 At the time HRI raised its defenses, the release on which it relied was not part of the record, although the record did contain a contract between the parties to the release in which they agreed to exchange releases, and frequent reference had been made during trial to the settlement of which the exchange of releases was a part. The record also belied HRI’s claim that the conspiracy had been dormant during 1959-1963, for it contained a letter written in 1962 from the pool to a distributor of Motorola products in Canada threatening infringement suits if he continued to distribute American-made products of Motorola. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 331 321 Opinion of the Court the trial court was required to take into account any préjudice that Zenith would hâve suffered as a resuit, see Kanelos v. Kettler, 132 U. S. App. D. C. 133, 136-137, n. 15, 406 F. 2d 951, 954-955, n. 15 (1968); United States v. 47 Bottles, More or Less, 320 F. 2d 564, 573-574 (CA3 1963) ; Caddy-lmler Créations v. Caddy, 299 F. 2d 79, 84 (CA9 1962); 3 J. Moore, Fédéral Practice If 15.08 [4] (2d ed. 1968), and here the préjudice to Zenith would hâve been substantial. Zenith’s theory that ail of its damages suffered during the four-year period were legally recoverable had been made quite clear during the trial, and Zenith had proved up its damages in accordance with that theory. Meanwhile HRI had neither pleaded its defenses, objected to Zenith’s evidence, nor otherwise hinted that post-1959 damages caused by pre-1959 conduct were for any reason barred until long after the record had been closed. To hâve then sustained HRI’s defenses would hâve been to deny Zenith the opportunity to prove its recoverable damages—a déniai that hardly comports with the letter or the spirit of Rule 15 (a). At the very minimum, if the defense of limitations or release was to be entertained and deemed to bar that part of Zenith’s damages resulting from the lingering conséquences of past acts, Zenith would hâve been entitled to perfect its proof as to damage resulting from pool operations during the four-year period, as well as to prove, if it could, what damages it might hâve suffered in the future from those acts. To hâve permitted Zenith to perfect its proof would, of course, hâve required reopening of the record and a virtual retrial of the issue of damages. The trial judge here might hâve permitted reopening. Like a motion under Rule 15 (a) to amend the plead-ings, a motion to reopen to submit additional proof is addressed to his sound discrétion. See, e. g., Swartz n. New York Central R. Co., 323 F. 2d 713, 714 (CA7 1963) ; 332 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Locklin v. Switzer Bros., 299 F. 2d 160, 169-170 (CA9 1961) ; Gas Ridge, Inc. v. Suburban Agricultural Proper-ties, Inc., 150 F. 2d 363, 366, rehearing denied, 150 F. 2d 1020 (CA5 1945) ; 6A J. Moore, Fédéral Practice fi 59.04 [13] (2d ed. 1966). But the record is clear that he re-fused to reopen with respect to damages in the Canadian market or otherwise to modify the Canadian judgment, and that he thereby rejected HRI’s proffered defenses. Although we are not privy to his unexpressed thinking and although his refusai can be read as a rejection of the defenses on the merits, it can also be read as a holding that the defenses were, in effect, waived by the untime-liness of their présentation and hence that the pleadings would not be amended, except as a matter of form, and that the trial would not be reopened. On the assumption that the trial court did hold the defenses of limitations and release to hâve been waived, we cannot say that the judge abused his discrétion or stressed too much the value of avoiding reopening a trial to litigate matters that HRI had had an oppor-tunity, but neglected, to litigate. Nor is it irrelevant in this connection that HRI’s central daims during trial were that there was no conspiracy and that Zenith had sufïered no damage at ail. The defenses that HRI set out in the post-trial motions were in a sense inconsistent with these trial daims, for the defenses conceded, albeit only arguendo, that a conspiracy did exist and that Zenith, absent the conspiracy, would hâve controlled a sizable share of the Canadian market. HRI’s post-trial argument, in effect, was one of confession and avoidance showing that the conspiracy had been so successful in the pre-1959 period that it could be relatively or entirely quiescent from 1959 to 1963 and nonetheless cause Zenith substantial damages in those years. It is quite possible that HRI knew exactly what it was doing in not pre-senting this argument during trial and that it realized a ZENITH RADIO CORP. v. HAZELTINE RESEARCH 333 321 Opinion of the Court need to présent it only after it learned that its original arguments had not induced the court to hold in its favor. Whatever HRI’s reasons for not offering its limitations and release defenses during trial, however, the trial court would not hâve erred in concluding that they were waived. Il Assuming, however, that the District Judge rejected the defenses of limitations and release on the merits, as the Court of Appeals held, we confront the issue of whether it is consistent with the controlling limitations statute, 15 U. S. C. § 15b, to permit Zenith to recover ail of the damages it suffered during the years 1959-1963 even though some undetermined portion of those damages was the proximate resuit of conduct occurring more than four years prior to the filing of the counterclaim. HRI con-tends, and the Court of Appeals held, that the statute permits the recovery only of those damages caused by overt acts committed during the four-year period. We do not agréé. A We turn first to Zenith’s argument that, even if the statute of limitations were to be held applicable in this case, the statute was nonetheless tolled from Novem-ber 24, 1958, to November 1, 1963,5 pursuant to 15 U. S. C. § 16 (b) by reason of a Government antitrust action brought against various American companies 5 On November 1, 1962, a consent decree was entered against the last défendant named in the Government action, which had been commenced on November 24, 1958, thereby terminating that action as to ail parties. See Barnett v. Warner Bros. Pictures Dist. Corp., 112 F. Supp. 5, 7 (ND 111. 1953). For purposes of the présent suit against HRI, which was not a party to the Government action, the running of the statute of limitations was thus tolled until November 1, 1963—one year after the entry of the consent decree. See 15 U. S. C. §16 (b). 415-649 0 - 72 - 27 334 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. participating along with HRI in the Canadian pool.6 If Zenith is correct in this respect and the running of the statute of limitations was suspended during the pend-ency of the Government suit, then it was entitled at the very least to sue in 1963 for any damage to its business occurring by reason of conspiratorial conduct at any time after November 24, 1954. The Court of Appeals rejected the tolling argument. It had some doubt whether tolling was properly before it since Zenith had never entered a formai plea of tolling, and HRI now contends that Zenith’s failure to so plead in its original complaint bars it forever from raising such a claim. This contention is without merit. The cases on which HRI relies themselves establish that where, as here, a plaintiff has no reason to anticipate that a claim of limitations will be raised against him, he need not set forth his claim of tolling until the limitations claim is raised. See National & Transcontinental Trading Corp. v. International General Elec. Co., 15 F. R. D. 379, 382 (SDNY 1954). Cf. Moviecolor Ltd. v. Eastman Kodak Co., 288 F. 2d 80, 88 (CA2 1961). Nor should Zenith be penalized for failing to enter a formai plea of tolling in response to HRI’s belated limitations plea, for Zenith can hardly be blamed for reading the remarks of the trial judge as a rejection of the limitations defense on the ground of waiver. Zenith was never unambiguously called upon to submit a formai plea; to hold under such circumstances that want of a submission amounts to a waiver would be to treat pleading as “a game of skill in 6 The Government suit was United States v. General Electric Co., Civil Action No. 140-157, which was brought in the Southern District of New York. The complaint and the final judgment were introduced in evidence in the présent proceedings as Plaintiff’s Exhibits Nos. 44-47. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 335 321 Opinion of the Court which one misstep by counsel may be décisive to the outcome”—an approach we hâve consistently rejected. See Foman v. Davis, supra, at 181-182; United States N. Hougham, 364 U. S. 310, 317 (1960); Conley v. Gibson, 355 U. S. 41, 48 (1957). The interests of justice thus clearly require that if HRI’s limitations defense is to be considered on its merits, Zenith’s claim of tolling must be dealt with as well. The Court of Appeals did, in fact, consider the tolling issue on the merits, but concluded that tolling takes place only with respect to parties to a Government suit and hence that tolling did not occur here because HRI was not such a party. This was error. The language of 15 U. S. C. § 16 (b) expressly provides for tolling of the statute of limitations “in respect of every private right of action . . . based in whole or in part on any matter complained of” in the proceeding instituted by the Government. (Emphasis added.) On the face of this section, a private party who brings suit for a conspiracy against which the Government has already brought suit is undeniably basing its claim in whole or in part upon the matter complained of in the Government suit, even if the défendant named in the private suit was named neither as a défendant nor as a coconspirator by the Government. If, that is, the Government sues only certain conspirators, but also allégés and proves during trial that others were conspirators, the fact of the tolling of the statute against those so proved but not sued can hardly be denied. Nor could tolling be denied if a de-fendant had never been shown to be a conspirator by the evidence offered in the earlier Government suit, but then had been proved to be such in the subséquent private suit. We find no indication in the legislative history of § 16 (b) that Congress intended it to toll the statute of limitations only against parties défendant in the Govern- 336 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ment action. Nor is anything cited to us in this respect.7 On the contrary, as we hâve said earlier, Congress, believing that “private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws,” enacted § 16 (b) in order to “assist private liti-gants in utilizing any benefits they might cull from government antitrust actions.” Minnesota Mining & Mjg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311, 317-318 (1965). We see nothing destructive of Congress’ purpose in holding that § 16 (b) tolls the statute of limitations against ail participants in a con-spiracy which is the object of a Government suit, whether or not they are named as défendants or conspirators therein; indeed, to so hold materially furthers congres-sional policy by permitting private litigants to await the outcome of Government suits and use the benefits accru-ing therefrom. It is true that the lower fédéral courts hâve until recently confined the operation of the section and held it applicable only to défendants named in the Government suit. See, e. g., Sun Theatre Corp. v. RKO Radio Pictures, Inc., 213 F. 2d 284, 290-292 (CA7 1954); Momand v. Universal Film Exchanges, Inc., 172 F. 2d 37, 7 HRI does suggest that the 1955 amendment of § 16, see 69 Stat. 283, must be understood as an indication of Congress’ approval of earlier cases in the lower fédéral courts confining the operation of § 16 (b) to parties défendant in Government suits. See text injra, this page and 337. We are unpersuaded. HRI can point to no direct evidence that Congress ever considered the issue now before us or voiced any views upon it; on the contrary, it appears that Congress left the matter for authoritative resolution in the courts. The true thrust of HRI’s argument is that we must find congressional approval of the earlier cases in Congress’ silence when it re-enacted the statute. We did not take such an approach, however, in Minnesota Mining & Mjg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311 (1965), and Leh v. General Petroleum Corp., 382 U. S. 54 (1965), and we do not do so here. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 337 321 Opinion of the Court 48 (CAI 1948). But these cases and others like them, as we hâve indicated, fly in the face of the language of the statute, are antithetical to its aims, and cannot be squared with our recent decisions in Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., supra, and Leh v. General Petroleum Corp., 382 U. S. 54 (1965). Minnesota Mining held that § 16 (b)’s toll-ing provision was not confined to those situations in which a Government decree, by virtue of § 16 (a), would be prima facie evidence against défendants in a private suit who had also been named as défendants in a Government suit. It rejected the view that §§16 (a) and 16 (b) are wholly interdependent and coextensive; on the contrary, § 16 (b) was given its full sweep. Leh, following Minnesota Mining, held that a private litigant was entitled to the benefit of tolling although the conspiracy he alleged covered a different time, named addi-tional parties, and excluded some parties named in the prior Government suit. While Leh did not explicitly décidé whether the statute would be tolled when the sole défendant in a private action covering the same ground as an earlier Government suit had been named neither as a conspirator nor as a party in the Government suit, we do not believe that such a case could be distin-guished from Leh. Cases in the lower fédéral courts since Leh hâve also corne to this conclusion. See New Jersey v. Morton Sait Co., 387 F. 2d 94 (CA3 1967) ; Vermont v. Cayuga Rock Sait Co., 276 F. Supp. 970 (Me. 1967); Michigan v. Morton Sait Co., 259 F. Supp. 35, 53-56 (Minn. 1966), aff’d sub nom. Hardy Sait Co. v. Illinois, 377 F. 2d 768 (CA8 1967). We therefore hold that Zenith, although suing HRI, which was named neither as a party nor as a coconspira-tor in the Government suit, is not barred from obtaining the benefits of the tolling statute, since it is undisputed that the conspiracy in which HRI participated was at 338 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. least in part the same conspiracy as was the object of the Government’s suit. From this it follows that the only issue still remaining upon HRI’s limitations claim is whether Zenith can recover in its 1963 suit for damages suffered after June 1, 1959, as the conséquence of pre-1954 conspiratorial conduct. B The basic rule is that damages are recoverable under the fédéral antitrust acts only if suit therefor is “com-menced within four years after the cause of action accrued,” 15 U. S. C. § 15b, plus any additional num-ber of years during which the statute of limitations was tolled. Generally, a cause of action accrues and the statute begins to run when a défendant commits an act that injures a plaintiff’s business. See, e. g., Suckow Borax Mines Consolidated, Inc. v. Borax Consolidated, Ltd., 185 F. 2d 196, 208 (CA9 1950) ; Blue-fields S. S. Co. v. United Fruit Co., 243 F. 1, 20 (CA3 1917), appeal dismissed, 248 U. S. 595 (1919); 2361 State Corp. n. Sealy, Inc., 263 F. Supp. 845, 850 (ND 111. 1967). This much is plain from the treble-damage statute itself. 15 U. S. C. § 15. In the context of a continuing conspiracy to violate the antitrust laws, such as the conspiracy in the instant case, this has usually been understood to mean that each time a plaintiff is injured by an act of the défendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. See, e. g., Crummer Co. v. Du Pont, 223 F. 2d 238, 247-248 (CA5 1955) ; Delta Theaters, Inc. v. Paramount Pictures, Inc., 158 F. Supp. 644, 648 (ED La. 1958) ; Momand v. Universal Film Exchange, Inc., 43 F. Supp. 996, 1006 (Mass. 1942), aff’d, 172 F. 2d, at 49. However, each separate cause of action that so accrues entitles a plaintiff to ZENITH RADIO CORP. v. HAZELTINE RESEARCH 339 321 Opinion of the Court recover not only those damages which he has suffered at the date of accrual, but also those which he will suffer in the future from the particular invasion, in-cluding what he has suffered during and will pre-dictably suffer after trial. See, e. g., Farbenjabriken Bayer, A. G. v. Sterling Drug, Inc., 153 F. Supp. 589, 593 (NJ 1957) ; Momand n. Universal Film Exchange, Inc., supra, at 1006. Cf. Lawlor v. Loewe, 235 U. S. 522, 536 (1915). Thus, if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover ail damages incurred by that date and ail provable damages that will flow in the future from the acts of the con-spirators on that date. To recover those damages, he must sue within the requisite number of years from the accrual of the action. On the other hand, it is hornbook law, in antitrust actions as in others, that even if injury and a cause of action hâve accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is spéculative or their amount and nature unprovable. Moe Light, Inc. v. Foreman, 238 F. 2d 817, 818 (CA6 1956) ; Chicago & N. W. R. Co. v. De Clow, 124 F. 142, 143 (CA8 1903) ; Culley n. Pennsylvania R. Co., 244 F. Supp. 710, 715 (Del. 1965). Cf. Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199, 206 (1891). In antitrust and treble-damage actions, refusai to award future profits as too spéculative is équivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. Cf. Schenley Industries v. N. J. Wine & Spirit Whole-salers Assn., 272 F. Supp. 872, 887-888 (NJ 1967); 340 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Delta Theaters, Inc. v. Paramount Pictures, Inc., supra, at 648-649. Otherwise future damages that could not be proved within four years of the conduct from which they flowed would be forever incapable of recovery, con-trary to the congressional purpose that private actions serve “as a bulwark of antitrust enforcement,” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 139 (1968), and that the antitrust laws fully “protect the victims of the forbidden practices as well as the public,” Radovich v. National Football League, 352 U. S. 445, 454 (1957). See also Lawlor v. National Screen Serv. Corp., 349 U. S. 322, 329 (1955). As we hâve already seen, acceptance of Zenith’s tolling argument requires further considération only of that portion of Zenith’s damages suffered during the 1959-1963 period as a resuit of pre-1954 conduct of the conspiracy. We must now détermine whether Zenith could hâve recovered those damages if it had brought suit for them in 1954, for if it could not, it would follow for the reasons stated above that it must be permitted to recover them now. We do not, of course, hâve the thinking of the district judge on this issue, and ordinarily the matter of future damages would very much dépend on his informed discrétion.8 But we are reluctant to return any issue in this litigation for another round of proceedings in the trial or appellate courts if we can fairly dispose of it 8 If the trial judge had passed upon the question, he well might hâve concluded that none of the damages sustained by Zenith in the Canadian market between 1959 and 1963 was a conséquence of pre-1954 conspiratorial conduct. The trial judge in effect found that, as to England and Australia, the effects of conspiratorial conduct were no longer felt by Zenith more than four years after the conduct had occurred, and there is no reason to infer that his findings would hâve been different in regard to Canada either in the présent suit or in a suit brought in 1954. But the trial judge made no such findings as to Canada, and we lack power to make them for him. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 341 321 Opinion of the Court at this juncture. After due considération, we hâve determined that in the circumstances of this case, § 15b was no bar to any part of the damages awarded Zenith by the District Court insofar as the Canadian market was concerned. Let us assume that Zenith in a treble-damage suit brought in 1954 had presented evidence similar to that which it presented in the instant suit, indicating that it would hâve had the same share of a free Canadian market as it did in the United States market. Assume also that it had presented evidence to the effect that, starting in 1954, when it had no sales in the Canadian market, it would hâve taken 10 years to reach that share in a free market. Given such evidence, the question would be whether a district court would hâve permitted Zenith to recover estimated profits upon 90% of its share of the hypothetical free Canadian market for its antici-pated losses in 1955, 80% for its losses in 1956, and 70% for its 1957 losses, and so on.9 We find it difficult to believe that Zenith could hâve convinced a District Court sitting in 1954 that, although it contemplated a free market from that time forward, it would still be suffering from provable in jury more than five years later. It is true that the damages awarded Zenith in this case were based on estimâtes of its volume of business in a free market. But those estimâtes were for a past period of time; the size and conditions in the market were known and the compétitive 9 Of course, these percentages are purely hypothetical. They rest upon an assumption that, if Zenith had sued in 1954 for future damages in the Canadian market and had claimed that it would take 10 years for it to attain its full share of that market under free compétitive conditions, then it would hâve proved that in 1955 it would hâve reached 10% of that share, in 1956, 20%, and so on. In each year it would hâve recovered damages for that percentage of the share which it had not yet attained. 342 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. forces were identifiable. Zenith’s performance during the same period and under comparable conditions was a matter of record. It is quite another matter to predict market conditions and the performance of one competitor in that market five to 10 years hence. The proceedings before us put in stark relief the difficulties of proving the fact and the amount of damage during a period in the immédiate past. Claims of future damage would hâve probably gotten short shrift in the lower courts if they had been pressed in this case. In our view, this is the very treatment such claims would hâve received had Zenith sued in 1954, and claimed damages for the decade of the sixties. The short of it is that Zenith asserted its cause of action for 1959-1963 damages well within the period during which § 15b entitled it to sue. III Entirely apart from its statute of limitations defense, HRI claims that whatever part of the 1959-1963 damages was caused by conspiratorial conduct prior to 1957 is unrecoverable because of a release executed in that year by Zenith in settlement of an antitrust action against other coconspirators in the Canadian patent pool.lfl The 10 The text of the release was as follows : “To Ail To Whom These Présents Shall Corne Or May Concern, Greeting: Know ye, That Zenith Radio Corporation and The Rau-land Corporation, each a corporation organized and existing under and by virtue of the laws of the State of Illinois, for and in considération of the sum of One Dollar ($1.00) lawful money of the United States of America and other good and valuable considération, to them in hand paid by *...................., the receipt whereof is hereby acknowledged, hâve each remised, released and forever discharged, and by these présents does each for itself and its respective sub-sidiaries, successors and assigns remise, release and forever discharge the said *...................and its subsidiaries and their respective successors and assigns of and from ail, and ail manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialities, covenants, contracts, ZENITH RADIO CORP. v. HAZELTINE RESEARCH 343 321 Opinion of the Court release extended not only to past but also to ail future damages arising out of pre-1957 conspiratorial acts. However, while it was a coconspirator in the Canadian pool, HRI was neither a party to the 1957 suit nor a party to the release, nor was it named in the release as one of the parties affected thereby. Nonetheless, the Court of Appeals held HRI entitled to the benefits of the release on the ground that Zenith had failed expressly to reserve any rights against HRI, and it therefore remanded the case to the District Court with directions to exclude from the judgment any damages caused by pre-1957 conduct. We again conclude that the Court of Appeals erred. Three rules hâve developed to deal with the question whether the release of one joint tortfeasor releases other tortfeasors who are not parties to or named in the release. The ancient common-law rule, which was grounded upon a formalistic doctrine that a release ex-tinguished the cause of action to which it related, was that a release of one joint tortfeasor released ail other parties jointly liable, regardless of the intent of the parties. See, e. g., Western Express Co. v. Smeltzer, 88 F. 2d 94, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, daims and demands whatsoever, in law, in admiralty, or in equity, which against said *..........., its subsidiaries and their respective successors and assigns, said Zenith Radio Corporation and The Rauland Corporation and each of them ever had, now has or which each of them and their respective subsidiaries, successors and assigns, hereafter can, shall or may hâve for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these présents, not including however, daims, if any, for unpaid balances on any goods sold and delivered. “*Insert “ ‘Radio Corporation of America,’ or “ ‘General Electric Company,’ or “ ‘Western Electric Company.’ “This release may not be changed orally.” 344 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. 95 (CA6 1937) ; American Ry. Express Co. v. Stone, 27 F. 2d 8, 10 (CAI 1928) ; Barrett v. Third Avenue R. Co., 45 N. Y. 628, 635 (1871) ; Ellù v. Esson, 50 Wis. 138, 146, 6 N. W. 518, 519 (1880). While this Court has referred to this rule in cases where the rights of the litigants were controlled by state or fédéral common law, see Chicago & Alton R. Co. v. Wagner, 239 U. S. 452, 456-457 (1915) ; United States v. Price, 9 How. 83, 92 (1850); Hunt N. Rhodes, 1 Pet. 1, 16 (1828) ; we are cited to no case where we hâve applied the rule to a statutory cause of action created under fédéral law. Indeed, we hâve expressly re-pudiated the rule. See Aro Mjg. Co. N. Convertible Top Co., 377 U. S. 476, 501 (1964). Cf. Birdsell v. Shaliol, 112 U. S. 485, 489 (1884). Moreover, in the lower fédéral courts, causes of action based upon fédéral statutes hâve generally been governed by one of the other two rules. The first of these rules provides that, although a release of one coconspirator normally releases ail others, it will not hâve such an effect if a plaintiff expressly reserves his rights against the others. This rule, which has been adopted with some variation by statute in 21 States,11 by judicial decision in others, see, e. g., Mc- 11 The Model Joint Obligations Act, 9B U. L. A. 355, which has been adopted in regard to tort daims by four States, is most similar to the rule stated in the text. It provides that a release of an obliger shall release co-obligors to the full extent of the obligor’s original liability, § 5 (a), unless the amount of that liability is not known to the obligée, § 5 (b), or the obligée expressly reserves his rights against the co-obligors. § 4. The four States adopting the act are Nevada, Nev. Rev. Stat., c. 101 (1967); New York, N. Y. General Obligations Law §§15-101 to 15-109 (1964); Utah, Utah Code Ann. §§ 15-4-1 to 15-4-7 (1953) ; Wisconsin, Wis. Stat. §§ 113.01 to 113.10 (1967). The Uniform Contribution among Tortfeasors Act, 9 U. L. A. 233, reverses the presumption arising from the absence of an express provision in the release. It enacts that “[a] release by the injured person of one joint tortfeasor . . . does not discharge the other tortfeasors unless the release so provides . . . .” § 4. The eight States that ZENITH RADIO CORP. v. HAZELTINE RESEARCH 345 321 Opinion of the Court Kenna v. Austin, 17 U. S. App. D. C. 228, 233-234, 134 F. 2d 659, 664-665 (1943) (announcing D. C. law) ; Riley v. Industrial Finance Service Co., 157 Tex. 306, 311, 302 S. W. 2d 652, 655 (1957); and by the First Restate-ment, see Restatement, Torts §885 (1) (1939); has been applied in a number of antitrust cases. See, e. g., Miami Parts Æ Spring, Inc. v. Champion Spark Plug Co., 402 F. 2d 83, 84 (CA5 1968) ; Twentieth Century-Fox Film Corp. v. Winchester Drive-In Theatre, Inc., 351 F. 2d 925, 931 (CA9 1965) ; Dura Electric Lamp Co. v. Westinghouse Electric Corp., 249 F. 2d 5, 6-7 (CA3 1957). It was this rule that the Court of Appeals followed in the opinion below. A final rule, which has gained support in several recent decisions and been adopted by the American Law Institute in a tentative draft of the Second Restatement of Torts, provides that the effect of a release upon coconspirators shall be determined in accordance with the intentions of the parties. See Winchester Drive-In Theatre, Inc. v. Twentieth Century-Fox Film Co., 232 F. Supp. 556, 561-563 (ND Cal. 1964), hâve adopted the Uniform Act are Arkansas, Ark. Stat. Ann. §§ 34-1001 to 34—1009 (1947) ; Delaware, Del. Code Ann., Tit. 10, §§ 6301-6308 (1953) ; Hawaii, Hawaii Rev. Laws §§ 246-10 to 246-16 (1955) ; Maryland, Md. Ann. Code, Art. 50, §§ 16 to 24 (1957) ; New Mexico, N. M. Stat. Ann. §§24-1-11 to 24-1-18 (1953); Pennsylvania, Pa. Stat. Ann., Tit. 12, §§2082-2089 (1967); Rhode Island, R. I. Gen. Laws Ann. §§ 10-6-1 to 10-6-11 (1956); South Dakota, S. D. Comp. Laws §§ 15-8-11 to 15-8-22 (1967). Two States—Massachusetts and North Dakota—hâve adopted a slightly different 1955 révision of the Act. See Mass. Gen. Laws Ann., c. 231B, §§ 1-4 (Supp. 1971) ; N. D. Cent. Code §§32-38-01 to 32-38-04 (1960). Other States adopting statutes affecting the common law of release are Alabama, Ala. Code, Tit. 7, §381 (1940); California, Cal. Code Civ. Proc. §§ 875-880 (Supp. 1970) ; Louisiana, La. Civ. Code Ann., Art. 2203 (1952); Michigan, Mich. Stat. Ann. § 27A.2925 (1962); Missouri, Mo. Rev. Stat. § 537.060 (1953); Montana, Mont. Rev. Codes Ann. § 93-8108 (1964) ; West Virginia, W. Va. Code Ann. § 55-7-12 (1966). The statutes last listed deal generally with the construction of instruments in suit and with the effect and form of releases in particular. 346 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. rev’d, Twentieth Century-Fox Film Corp. v. Winchester Drive-In Theatre, Inc., supra; Young v. State, 455 P. 2d 889 (Alaska, 1969) ; Breen v. Peck, 28 N. J. 351, 146 A. 2d 665 (1958) ; Restatement (Second), Torts § 885 (1) (Tent. Draft No. 16, 1970); 12 Vand. L. Rev. 1414, 1416-1417 (1959). We recently adopted the final rule giving effect to the intentions of the parties in Aro Mjg. Co. n. Convertible Top Co., supra, a patent infringement case. The agreement in that case expressly provided for the release of “Ford, its associated companies . . . [and] its and their dealers, customers and users of its and their products” from ail past and future infringement daims. 377 U. S., at 493. The document, however, did not expressly reserve the releasor’s rights against anyone. The issue in the case was whether Aro, a contributory infringer which did not fit within any of the spécial categories enumerated in the release, was nonetheless liable for its past contribution to infringements. The District Court had found that the parties had not intended to release contributory infringers such as Aro, and, despite the absence of an express réservation of rights against such infringers, we accordingly held that Aro was not entitled to benefit from the release. We concluded that a release, “which clearly intends to save the releasor’s rights against a past contributory infringer, does not automatically surrender those rights.” Id., at 501. We perceive no reason to follow a different rule in antitrust litigation. Indeed, of the three available rules, the rule adopted in Aro is most consistent with the aims and purposes of the treble-damage remedy under the antitrust laws. We must keep in mind the multistate and multiparty character of much private antitrust litigation; often, défendants who hâve conspired together must be sued in a number of different States if ail are to be reached, and, while défendants in some States may ZENITH RADIO CORP. v. HAZELTINE RESEARCH 347 321 Opinion of the Court be willing to enter into settlements, défendants in others may not. To adopt the ancient common-law rule would frustrate such partial settlements, and thereby promote litigation, while adoption of the First Restatement rule would create a trap for unwary plaintiffs’ attorneys. The straightforward rule is that a party releases only those other parties whom he intends to release. Our conclusion that this is the appropriate rule for giving effect to releases under the antitrust laws is further but-tressed by the Restatement’s abandonment in a tentative draft of the rule requiring express réservation of rights in order to save them, and its adoption of the rule to which we adhéré. See Restatement (Second), Torts § 885, Comments a-d (Tent. Draft No. 16, 1970). The intention of the parties to the 1957 release is absolutely clear from the contract made prior thereto in which they agreed to exchange releases.12 That contract expressly provided for releases “to bind or benefit” the party and “the parent and subsidiaries of the party giving or receiving such release (‘subsidiaries’ to include corporations in which the party has stock ownership of 50% or more).” 13 We accordingly hâve no hesitancy in 12 Resort may be had to the contract in construing the release since the parole evidence rule is usually understood to be operative only as to parties to a document, and HRI here was not a party to the release. See Stem v. Commissioner, 137 F. 2d 43, 46 (CA2 1943) ; O’Shea v. New York, C. & St. L. R. Co., 105 F. 559, 562-563 (CA7 1901) ; Restatement (Second), Torts § 885, Comment d (Tent. Draft No. 16, 1970). See generally 9 J. Wigmore, Evidence §2446 (3d ed. 1940). 13 The contract provided in relevant part : “1. . . . RCA, GE and Western Electric each to grant Zenith and Rauland, respectively, a general release and Zenith and Rauland each to grant RCA, GE and Western Electric, respectively, a general release, each such release, to the extent either party may request, to bind or benefit the parent and subsidiaries of the party giving or receiving such release ('subsidiaries’ to include corporations in which the party has stock ownership of 50% or more).” 348 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. holding that HRI, which was neither a party to the 1957 release nor a parent or subsidiary of a party, is not now entitled to the benefits of that release. Of course, to the extent that the $10,000,000 settlement which Zenith received in return for the 1957 release was understood by the parties to provide compensation for future damages that Zenith anticipated it would suffer during 1959-1963 as a resuit of the pre-1957 conduct of the Canadian pool, HRI would hâve available to it a defense of payment, for it is being ordered by the District Court to make full payment for ail the 1959-1963 damages inflicted by ail the members of the pool. It is set-tled that, entirely apart from any release, a plaintiff who has recovered any item of damage from one coconspirator may not again recover the same item from another con-spirator; the law, that is, does not permit a plaintiff to recover double payment. See Aro Mfg. Co. v. Convertible Top Co., supra, at 502-503 (plurality view) ; McKenna v. Austin, supra, at 234, 134 F. 2d, at 665; Restatement, Torts §885 (3) (1939); W. Prosser, Torts §46 (3d ed. 1964). However, the record below indicates that a defense of payment could not here be sustained for, while the 1957 release did extend to future damages, the undis-puted and unimpeached testimony of Zenith’s witnesses was that the $10,000,000 settlement was understood by the parties as compensation only for Zenith’s damages up to the date of the release. Thus, it is not surprising that, although HRI did advance a claim of payment upon its post-trial motion in the District Court, it has made no such argument in this Court. Since the claim was un-timely presented below, was not pressed here, and is not sustainable on the facts contained in the record, we see no basis for its further considération. The judgment of the Court of Appeals is reversed, and ZENITH RADIO CORP. v. HAZELTINE RESEARCH 349 321 Harlan, J., concurring in resuit the case is remanded, with instructions that the Court of Appeals reinstate the judgment of the District Court with respect to the Canadian market. Mr. Justice Harlan, with whom Mr. Justice Stewart joins, concurring in the resuit. My review of the record in this case has left me with the firm conviction that the trial judge rejected Hazeltine’s proffered defenses of release and the statute of limitations on the ground that they were too belatedly raised. I agréé with the Court that such a course was within the trial judge’s Sound discrétion. I therefore find it unnecessary to express any view on the remaining, difficult issues which the Court discusses. A considération of the posture of the case at the time of the trial judge’s ruling facilitâtes an understanding of the record. Two years after the filing of Zenith’s counterclaim, one year after the close of evidence, nine months after the filing of Hazeltine’s post-trial brief, and two months after the trial judge had made preliminary findings of fact and conclusions of law, Hazeltine, repre-sented by new counsel, raised for the first time its defenses of release and the statute of limitations. It also sought to dispute the quality and the sufficiency of the proof of damages with respect to the Canadian market, and it raised the issue of governmental embargoes in the English and Australian markets. The District Judge heard two days of argument, cover-ing nearly 200 pages of the Appendix, on both the merits of the contentions and the equity of allowing Hazeltine to raise them so belatedly. There were three main links in the chain of Hazeltine’s reasoning in support of its contention that it should be allowed the benefit of the release and the statute of limitations. First, the defenses were meritorious and would bar a large portion of the enormous potential recovery. Second, Hazeltine’s late- 415-649 0 - 72 - 28 350 OCTOBER TERM, 1970 Harlan, J., concurring in resuit 401 U. S. ness in raising the defenses should be excused because Zenith’s counterclaim and supporting affidavit gave no notice that Zenith intended to rely on any activities oc-curring before the filing of the answer in 1961, which was well within the limitation period under any theory. Third, Hazeltine should be excused for failing to spot the alleged shift in Zenith’s theory of recovery during the course of the trial because Hazeltine’s trial counsel was primarily a patent lawyer who was not completely at home in the antitrust field. App. 68-69, 72-74, 156-162. The District Judge on at least three occasions observed that Hazeltine had been put on notice of Zenith’s theory by the allégations of the counterclaim itself and by the pretrial briefs.1 He repeatedly commented on trial coun-sel’s failure to raise the defenses of release and the statute of limitations,2 and in the course of colloquy more 1 For example: “Mr. Kayser [Hazeltine’s counsel]: . . . it was not until during the trial, after we had the long Dodds affidavit and ail of this testimony that suddenly, gradually this new theory starts to creep in, this new theory where we go back and try to recover again based on these allegedly wrongful acts many, many years ago. “The Court: I must assume, to go along with that, that counsel at that time didn’t read the pretrial brief which clearly set out, prior to the trial, this theory that you were taken by surprise by during the course of the trial.” App. 158. See also App. 87, 144. 2For example: “The Court: . . . [Reads from Hazeltine’s posttrial brief.] “Do you differ with counsel’s statement, your prior counsel’s statement 90 days after proofs were closed ? “Mr. Kayser: As to what the issues were that were presented in this case, y es, your Honor, I do. I most definitely do. “The Court : Of course, you know by now that this is a new theory on your behalf. “Mr. Kayser: Your Honor, I don’t think it is a new theory. I think that---- “The Court : I mean, at least it wasn’t advanced in this brief filed June 8, 90 days after the proofs closed. “Mr. Kayser: Your Honor, we fully recognize the fact that the ZENITH RADIO CORP. v. HAZELTINE RESEARCH 351 321 Harlan, J., concurring in resuit directly addressed to Hazeltine’s other contentions he emphasized the necessity for trial counsel to préparé his case if the client was not to suffer.3 After counsel for trial counsel did not realize what was happening to him. We fully realize that fact. If we had realized it- “The Court: I mean, he didn’t even realize it 90 days after the proofs were over. “Mr. Kayser: Yes, your Honor. I quite agréé.” App. 72. Later the following colloquy occurred: “The Court: Do you agréé with the theory that sometime litiga-tion must end? “Mr. Kayser: Yes, your Honor. “The Court: And these offers of proof [with respect to embargoes by the English and Australian Governments] are now being made more than one year after the proof closed on this case? “Mr. Kayser: Your Honor, this I think is one of the most unusual cases that will corne into a Courtroom, in that we hâve here, as I think we can demonstrate—without basis we hâve here the danger of a judgment of almost forty-nine million dollars which will spell corporate death, which is subject to the affirmative defenses of limitations and of releases. . . . “The Court: I just got through instructing a jury that in deliber-ating on their verdict, they should not take into considération either sympathy or préjudice. “Mr. Kayser: I submit most respectfully to this court that this court should take into account equity. This is not a matter of sympathy. This is a matter of equity and a matter of justice; that this judgment, which will spell the death of this corporation, has had absolutely no basis whatsoever. It is subject to affirmative defenses. It was accomplished by a subtle switch in theory. Maybe it should hâve been caught; maybe it shouldn’t. But is your Honor going to penalize this corporation--- “The Court: I mean, it wasn’t even caught 90 days after the proofs closed. “Mr. Kayser: I agréé, that’s true. I agréé. This is a very unusual case; we recognize that. “The Court: You may proceed.” App. 108-109. See also App. 71-76 passim, 158-161. 3 For example: “The Court: . . . underlying what you are saying [with respect to the embargoes] is what is said so frequently in 352 OCTOBER TERM, 1970 Harlan, J., concurring in resuit 401 U. S. Zenith had presented his argument,4 the District Judge heard Hazeltine’s rebuttal, App. 223-250, with only one substantive question: “You do agréé that the statute of limitations can be waived. You agréé to that, don’t you?” App. 237. At the conclusion of his rebuttal argument, Hazeltine’s attorney moved for leave to file “our affirmative defenses as a formai pleading of release and statute of limitations,” and also moved to dismiss the counterclaim on the basis of those defenses. App. 250. The following colloquy then occurred: “The Court: Mr. McConnell [Zenith’s counsel], do you care to address yourself very briefly to those two motions he just made? You will be limited to that. “Mr. Kayser: Sir? appeals in criminal cases, that they are where they are by virtue of incompétence of counsel. “Now, there a person’s liberty is involved, and what do the courts say in regard to this plea of incompetency of counsel? “They say, first, was he counsel of your choice rather than appointed counsel? And if he was, the courts say, in regard to keeping men incarcerated and depriving them of their liberty, that unless the trial conducted by counsel of the prisoner’s choice was such a farce, such a fraud that justice would be horrified by the resuit, that since you are represented by counsel of your choice, why, agreed that he might not be the greatest in the world, but he was your lawyer and you picked him out. You are going to hâve to remain incarcerated for the balance of your term. “Now, how do we get around that analogy in this case?” App. 140-141. Hazeltine’s attorney responded in terms of his theory of surprise, whereupon the District Judge answered that fédéral procedure was based on notice pleading and in his opinion Hazeltine had been put on notice. App. 141-144. See also, e. g., App. 116, 121-123, 146, 155. 4 App. 169-223. The District Judge asked for Zenith’s views on the merits of the proposed defenses, but he did not press counsel on his reply. App. 186, 189, 193. ZENITH RADIO CORP. v. HAZELTINE RESEARCH 353 321 Harlan, J., concurring in resuit “The Court: Mr. McConnell—the ones that hâve to do with seeking to file these new pleadings on the statute of limitations. “Mr. McConnell: Well, the statute of limitations—this case is clearly distinguishable from the Emich case----- “The Court: Ail he is doing is asking leave to file, and that is the only thing I wish to hâve you address yourself to. “Mr. McConnell: I think it’s too late. He can make it for the record, but to actually file them in this case, the record is made. The case has been closed. “The Court: Well, the record will show that leave is given to file them at this time, after proofs are closed and after findings hâve been made.” [The District Judge then stated how much he had enjoyed the argument of the past two days and complimented counsel on their présentations.] “The Court at this time is prepared to enter the final judgment and decree offered with the exception of . . . [the damages allegedly suffered in England and Australia.]” App. 250-251. The judge then indicated that he would reopen the record to receive additional evidence with regard to the embargoes in England and Australia, but that the scope of the inquiry would be narrowly limited, and in particu-lar no relitigation of facts adduced at trial would be permitted. The judge explained, “I do feel that in order to satisfy myself, in order to do equity in this mat-ter, that I would like, to the limited extent expressed, a reopening in regard to the matters that I hâve indicated that do trouble me by virtue of the offers of proof that hâve been made and the statements that hâve been made in regard solely to Australia and England.” App. 252-253. Except for giving Hazeltine’s counsel five days 354 OCTOBER TERM, 1970 Harlan, J., concurring in resuit 401 U. S. in which to file his affirmative defenses, the judge made no other relevant comments in ruling on the motions. I find it impossible to believe that the judge ruled thus summarily on the merits of the complicated issues of antitrust law to which this Court devotes 15 printed pages. I also find it highly unlikely that, without a word of explanation for departing from the sentiments he ex-pressed during argument, the judge intended to forgive Hazeltine’s failure to raise the defenses earlier. To be sure, he must hâve considered the merits sufficiently to satisfy himself that refusai to allow Hazeltine to raise these defenses worked no gross inequity. See Fed. Rule Civ. Proc. 15 (a). I remain convinced, however, that he rejected the defenses only as untimely raised. Believing that the Court of Appeals clearly erred in reaching the opposite conclusion,5 I concur in the judgment of the Court on that ground. 5 The opinion of the Court of Appeals gives no indication that its attention was drawn to the remarks of the District Judge during Hazeltine’s argument in chief, which cast light on his ruling on the motion for leave to file. Its entire discussion of the basis for the District Court’s action reads as follows: “Zenith’s counsel objected to the filing of the defenses on the ground that they came too late and were waived. The district court, however, permitted the defenses to be filed and thereafter denied HRI’s motion for judgment based on the defenses. . . . [The Suprême Court left open the question whether this ruling was on the merits.] It is our view that the court’s ruling was not on the basis of waiver, but because the defenses on their merits did not bar Zenith’s recov-ery.” 418 F. 2d, at 23-24. RELFORD v. U. S. DISCIPLINARY COMMANDANT 355 Syllabus RELFORD v. COMMANDANT, U. S. DISCIPLINARY BARRACKS, FT. LEAVENWORTH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 98. Argued December 15-16, 1970—Decided February 24, 1971 Petitioner, then an Army corporal, was convicted in 1961 by a general court-martial for violating Articles 134 and 120 of the Uniform Code of Military Justice by kidnaping and raping, within the bounds of a military réservation, two women—one, who was wait-ing for her serviceman brother who was visiting the base hospital; the other, who was on her way from the home on the base where she lived with her serviceman husband to the post exchange where she worked. In this habeas corpus proceeding the Court granted certiorari on the issue of the retroactivity and scope of O’Callahan v. Parker, 395 U. S. 258 (1969), which held that a court-martial had no jurisdiction to try a member of the armed forces charged with attempted off-post râpe of a civilian and related offenses since such crimes were not “service connected.” Held: 1. Though some of the factors are présent here that the Court relied on for its resuit in O’Callahan (the offenses were committed in peacetime within this country’s territory, did not relate to the accused’s military duties, were traditionally cognizable in civilian courts (which were available to try them), and did not directly Août military authority or violate military property), this case significantly differs from O’Callahan in that the crimes there were committed by a serviceman away from his base against a victim who had no connection with the base, whereas here the crimes were committed on the base against women properly there, one of whom was returning to her work on the base when the attack occurred. Pp. 364-365. 2. An offense committed by a serviceman on a military post that violâtes the security of a person or of property there is service connected and may be tried by a court-martial. Pp. 367-369. 3. The question of O’Callahan’s retroactivity is not decided. Pp. 369-370. 409 F. 2d 824, affirmed. Blackmun, J., delivered the opinion for a unanimous Court. 356 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Judson W. Detrick, by appointment of the Court, 397 U. S. 1020, argued the cause and filed briefs for petitioner. Solicitor General Griswold argued the cause for respondent. With him on the brief were Assistant Attorney General Wilson, Deputy Solicitor General Springer, Béatrice Rosenberg, and Roger A. Pauley. Mr. Justice Blackmun delivered the opinion of the Court. In O’Callahan v. Parker, 395 U. S. 258, decided June 2, 1969, by a five-to-three vote, the Court held that a court-martial may not try a member of our armed forces charged with attempted râpe of a civilian, with housebreaking, and with assault with intent to râpe, when the alleged offenses were committed off-post on American territory, when the soldier was on leave, and when the charges could hâve been prosecuted in a civilian court. What is necessary for a court-martial, the Court said, is that the crime be “service connected.” 395 U. S., at 272. O’Callahan’s military trial, of course, was without those constitutional guarantees, including trial by jury, to which he would hâve been entitled had he been prosecuted in a fédéral civilian court in the then Territory of Hawaii where the alleged crimes were committed. O’Callahan already has occasioned a substantial amount of scholarly comment.1 Much of it character-izes the decision as a significant one because it is said to départ from long-established, or at least long-accepted, 1 Everett, O’Callahan v. Parker—Milestone or Millstone in Military Justice?, 1969 Duke L. J. 853; McCoy, Equal Justice for Serv-icemen: The Situation Before and Since O’Callahan v. Parker, 16 N. Y. L. F. 1 (1970); Nelson & Westbrook, Court-Martial Jurisdiction Over Servicemen for “Civilian” Offenses: An Analysis of O’Callahan v. Parker, 54 Minn. L. Rev. 1 (1969) ; Wilkinson, The Narrowing Scope of Court-Martial Jurisdiction: O’Callahan v. RELFORD v. U. S. DISCIPLINARY COMMANDANT 357 355 Opinion of the Court concepts. Some of the literature is generally approv-ing.2 Some of it is generally critical.3 Some of it, as did the O’Callahan dissent, 395 U. S., at 284, forecasts a period of confusion for both the civil and the military courts.4 Not surprisingly, much of the literature is con-cerned with the issue of O’Callahan’s retrospectivity. Some writers assert that the holding must be applied retroactively.5 Others predict that it will not be so applied.6 Naturally enough, O’Callahan has had its ref- Parker, 9 Washburn L. J. 193 (1970) ; Wurtzel, O’Callahan v. Parker: Where Are We Now?, 56 A. B. A. J. 686 (1970) ; The Suprême Court 1968 Term, 83 Harv. L. Rev. 7, 212-220 (1969); O’Callahan v. Parker, 395 U. S. 258 (1969): New Limitation on Court-Martial Jurisdiction, 61 J. Crim. L. C. & P. S. 195 (1970); Comment, 22 Baylor L. Rev. 64 (1970); Comment, 18 J. Pub. L. 471 (1969) ; Comment, 21 Mercer L. Rev. 311 (1969); Comment, 7 San Diego L. Rev. 55 (1970) ; Comment, 15 Vill. L. Rev. 712 (1970) ; Comment, 21 S. C. L. Rev. 781 (1969); Note, 70 Col. L. Rev. 1262 (1970); Note, 18 Kan. L. Rev. 335 (1970); Note, 3 Loyola U. L. Rev. 188 (1970); Note, 24 U. Miami L. Rev. 399 (1970); Note, 68 Mich. L. Rev. 1016 (1970); Note, 48 N. C. L. Rev. 380 (1970); Note, 64 Nw. U. L. Rev. 930 (1970); Recent Cases, 49 Ore. L. Rev. 237 (1970); Note, 23 Sw. L. J. 948 (1969); Note, 37 Tenn. L. Rev. 421 (1970); Note, 44 Tul. L. Rev. 417 (1970); 36 Brooklyn L. Rev. 259 (1970); 19 Buffalo L. Rev. 400 (1970); 38 Geo. Wash. L. Rev. 170 (1969) ; 31 Ohio St. L. J. 630 (1970) ; 22 Vand. L. Rev. 1377 (1969). 2 McCoy, supra; 61 J. Crim. L. C. & P. S. 195; Note, 18 Kan. L. Rev. 335; 19 Buffalo L. Rev. 400; Comment, 18 J. Pub. L. 471. 3 Everett, supra; Nelson & Westbrook, supra; Wilkinson, supra; Wurtzel, supra; Comment, 15 Vill. L. Rev. 712; Note, 24 U. Miami L. Rev. 399; 38 Geo. Wash. L. Rev. 170; 22 Vand. L. Rev. 1377. 4 Comment, 22 Baylor L. Rev. 64; Comment, 18 J. Pub. L. 471; Note, 18 Kan. L. Rev. 335; Note, 23 Sw. L. J. 948; Note, 24 U. Miami L. Rev. 399; 31 Ohio St. L. J. 630. 5 Wilkinson, supra; Comment, 22 Baylor L. Rev. 64; Note, 64 Nw. U. L. Rev. 930. 6 Nelson & Westbrook, supra; Comment, 21 S. C. L. Rev. 781; Note, 3 Loyola U. L. Rev. 188, 198 n. 67; 44 Tul. L. Rev. 417, 424. 358 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. erences in the fédéral courts of appeals7 and in a sig-nificant number of cases in the United States Court of Military Appeals.8 7 See, e. g., Latney v. Ignatius, 135 U. S. App. D. C. 65, 416 F. 2d 821 (1969); Harris N. Ciccone, 417 F. 2d 479, 488 (CA8 1969), cert. denied, 397 U. S. 1078; Gallagher v. United States, 191 Ct. Cl. 546, 423 F. 2d 1371 (1970), cert. denied, 400 U. S. 849; Silvero v. Chief of Naval Air Basic Training, 428 F. 2d 1009 (CA5 1970) ; King v. Moseley, 430 F. 2d 732 (CA10 1970) ; Zenor v. Vogt, 434 F. 2d 189 (CA5 1970). 8 United States v. Borys, 18 U. S. C. M. A. 547, 40 C. M. R. 259 (1969) ; United States v. Prather, 18 U. S. C. M. A. 560, 40 C. M. R. 272 (1969); United States v. Beeker, 18 U. S. C. M. A. 563, 40 C. M. R. 275 (1969); United States n. DeRonde, 18 U. S. C. M. A. 575, 40 C. M. R. 287 (1969) ; United States v. Boyd, 18 U. S. C. M. A. 581, 40 C. M. R. 293 (1969) ; United States v. Cochran, 18 U. S. C. M. A. 588, 40 C. M. R. 300 (1969); United States n. Chandler, 18 U. S. C. M. A. 593, 40 C. M. R. 305 (1969) ; United States v. Crapo, 18 U. S. C. M. A. 594, 40 C. M. R. 306 (1969); United States v. Harris, 18 U. S. C. M. A. 596, 40 C. M. R. 308 (1969); United States v. Castro, 18 U. S. C. M. A. 598, 40 C. M. R. 310 (1969) ; United States v. Henderson, 18 U. S. C. M. A. 601, 40 C. M. R. 313 (1969) ; United States n. Riehle, 18 U. S. C. M. A. 603, 40 C. M. R. 315 (1969); United States v. Williams, 18 U. S. C. M. A. 605, 40 C. M. R. 317 (1969) ; United States v. Paxiao, 18 U. S. C. M. A. 608, 40 C. M. R. 320 (1969); United States v. Smith, 18 U. S. C. M. A. 609, 40 C. M. R. 321 (1969); United States v. Shockley, 18 U. S. C. M. A. 610, 40 C. M. R. 322 (1969) ; United States v. Rose, 19 U. S. C. M. A. 3, 41 C. M. R. 3 (1969); United States v. Armstrong, 19 U. S. C. M. A. 5, 41 C. M. R. 5 (1969); United States v. Rego, 19 U. S. C. M. A. 9, 41 C. M. R. 9 (1969); United States v. Camacho, 19 U. S. C. M. A. 11, 41 C. M. R. 11 (1969); United States v. Cook, 19 U. S. C. M. A. 13, 41 C. M. R. 13 (1969) ; United States v. Armes, 19 U. S. C. M. A. 15, 41 C. M. R. 15 (1969) ; United States v. Moris- seau, 19 U. S. C. M. A. 17, 41 C. M. R. 17 (1969); United States v. Peak, 19 U. S. C. M. A. 19, 41 C. M. R. 19 (1969); United States v. Plamondon, 19 U. S. C. M. A. 22, 41 C. M. R. 22 (1969) ; United States v. Sharkey, 19 U. S. C. M. A. 26, 41 C. M. R. 26 (1969); United States v. Weinstein, 19 U. S. C. M. A. 29, 41 C. M. R. 29 (1969) ; United States v. Allen, 19 U. S. C. M. A. 31, 41 C. M. R. 31 RELFORD v. U. S. DISCIPLINARY COMMANDANT 359 355 Opinion of the Court In the présent fédéral habeas corpus case, instituted several years after the applicant’s conviction by court-martial, certiorari was granted “limited to retroactivity (196 9) ; United States v. Safiord, 19 U. S. C. M. A. 33, 41 C. M. R. 33 (1969); United States v. Frazier, 19 U. S. C. M. A. 40, 41 C. M. R. 40 (1969) ; United States v. Nichais, 19 U. S. C. M. A. 43, 41 C. M. R. 43 (1969) ; United States v. Hallahan, 19 U. S. C. M. A. 46, 41 C. M. R. 46 (1969) ; United States v. Huff, 19 U. S. C. M. A. 56, 41 C. M. R. 56 (1969); United States v. Keaton, 19 U. S. C. M. A. 64, 41 C. M. R. 64 (1969) ; United States v. Easter, 19 U. S. C. M. A. 68, 41 C. M. R. 68 (1969); United States v. Stevenson, 19 U. S. C. M. A. 69, 41 C. M. R. 69 (1969) ; United States v. Everson, 19 U. S. C. M. A. 70, 41 C. M. R. 70 (1969) ; United States v. Fry-man, 19 U. S. C. M. A. 71, 41 C. M. R. 71 (1969) ; United States n. Higginbotham, 19 U. S. C. M. A. 73, 41 C. M. R. 73 (1969) ; United States v. Adams, 19 U. S. C. M. A. 75, 41 C. M. R. 75 (1969) ; United States v. Wysingle, 19 U. S. C. M. A. 81, 41 C. M. R. 81 (1969); United States v. GUI, 19 U. S. C. M. A. 93, 41 C. M. R. 93 (1969); United States v. McGonigal, 19 U. S. C. M. A. 94, 41 C. M. R. 94 (1969) ; United States v. Fields, 19 U. S. C. M. A. 119, 41 C. M. R. 119 (1969); United States v. Bryan, 19 U. S. C. M. A. 184, 41 C. M. R. 184 (1970) ; United States v. Blackwell, 19 U. S. C. M. A. 196, 41 C. M. R. 196 (1970); Mercer v. Dillon, 19 U. S. C. M. A. 264, 41 C. M. R. 264 (1970) ; United States v. Peterson, 19 U. S. C. M. A. 319, 41 C. M. R. 319 (1970); Gosa v. United States, 19 U. S. C. M. A. 327, 41 C. M. R. 327 (1970) ; Wright v. United States, 19 U. S. C. M. A. 328, 41 C. M. R. 328 (1970); Hooper v. Laird, 19 U. S. C. M. A. 329, 41 C. M. R. 329 (1970); United States n. Haagenson, 19 U. S. C. M. A. 332, 41 C. M. R. 332 (1970); In re Watson, 19 U. S. C. M. A. 401, 42 C. M. R. 3 (1970); Brant n. United States, 19 U. S. C. M. A. 493, 42 C. M. R. 95 (1970) ; United States v. Daniels, 19 U. S. C. M. A. 529, 42 C. M. R. 131 (1970) ; United States v. Wills, 20 U. S. C. M. A. 8, 42 C. M. R. 200 (1970) ; United States v. Lovejoy, 20 U. S. C. M. A. 18, 42 C. M. R. 210 (1970); United States y. Ortiz, 20 U. S. C. M. A. 21, 42 C. M. R. 213 (1970); United States v. Hargrave, 20 U. S. C. M. A. 27, 42 C. M. R. 219 (1970); United States v. Davis, 20 U. S. C. M. A. 27, 42 C. M. R. 219 (1970) ; United States v. Snyder, 20 U. S. C. M. A. 102, 42 C. M. R. 294 (1970); United States v. Morley, 20 U. S. C. M. A. 179, 43 C. M. R. 19 (1970). 360 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. and scope of O’Callahan v. Parker ... P 397 U. S. 934 (1970). We thus do not reconsider O’Callahan. Our task here concerns only its application. I Isiah Relford, in 1961, was a corporal on active duty in the United States Army. He was stationed at Fort Dix, New Jersey. On September 4, 1961, the visiting 14-year-old sister of another serviceman, who was on leave from his Army station at Fort Campbell, Kentucky, and who came to Fort Dix when his wife delivered a child at the base hospital, was abducted at the point of a knife from an automobile in the hospital’s parking lot as she waited for her brother. The girl was raped by her abductor. A few weeks later, on October 21, the wife of an Air Force man stationed at McGuire Air Force Base, adjacent to Fort Dix, was driving from her home on the base to the post exchange concession, also on the base, where she worked as a waitress. As the woman slowed her automobile for a stop sign, a man gained entry to the car from the passenger side and, with a knife at her throat, commanded the woman to drive on some distance to a dirt road in the fort’s training area. She was raped there. The second victim, with her assailant still in the automobile, was able to make her predicament known to military police. The assailant was apprehended and turned out to be Relford. He immediately admitted consensual intercourse with the victim. The next morn-ing, after a brief interrogation, he confessed to kidnaping and raping both women. At the time of each incident Relford was in civilian clothes. It is undisputed that these events ail took place on the military réservation consisting of Fort Dix and the contiguous McGuire Air Force Base. RELFORD v. U. S. DISCIPLINARY COMMANDANT 361 355 Opinion of the Court Relford, in due course, was charged with raping and kidnaping each of the women, in violation of Arts. 120 and 134, respectively, of the Uniform Code of Military Justice, 10 U. S. C. §§ 920 and 934.9 He was tried by a general court-martial in December 1961 and was con-victed on the four charges. Relford’s sentence was the forfeiture of ail pay and allowances, réduction to the lowest enlisted grade, and death. The customary refer-ence to the staff judge advocate was made and the convening authority approved. U. C. M. J. Arts. 60-65, 10 U. S. C. §§ 860-865. Upon the review by the Army Board of Review,10 required under the Code’s Art. 66, 10 U. S. C. § 866, the conviction was sustained; the sentence, however, was reduced to hard labor for 30 years, total forfeitures, and a dishonorable discharge. The Court of Military Appeals denied a pétition for review on September 24, 1963. United States v. Relford, 14 U. S. C. M. A. 678. 9 Râpe is specified in Art. 120 (a) : “§ 920. Art. 120. Râpe and carnal knowledge. “(a) Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without her consent, is guilty of râpe and shall be punished by death or such other punishment as a court-martial may direct.” Kidnaping is not specifically mentioned in the Code. The charge for that offense, therefore, was laid under Art. 134, the General Article : “§ 934. Art. 134. General article. “Though not specifically mentioned in this chapter, ail disorders and neglects to the préjudice of good order and discipline in the armed forces, ail conduct of a nature to bring discrédit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, spécial, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discrétion of that court.” 10 Now the Court of Military Review. 82 Stat. 1341, 10 U. S. C. §866 (1964 ed., Supp. V). 362 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Relford’s case thus became final more than five and a half years prior to this Court’s decision in O’Callahan v. Parker. In 1967, Relford, being in custody in the United States Disciplinary Barracks at Leavenworth, Kansas, filed his application for a writ of habeas corpus with the United States District Court for the District of Kansas. He alleged inadéquate représentation by counsel in the military proceeding. Chief Judge Stanley found no merit in the claim and denied the application. On appeal, Relford repeated the inadequate-representation claim and, for the first time, raised questions as to the admis-sibility of his confession, as to a lineup procedure, and as to the fairness of his military trial. The Tenth Circuit reviewed ail these daims on the merits, but affirmed the District Court’s déniai of relief. Relford v. Commandant, 409 F. 2d 824 (1969).11 The Tenth Circuit’s opinion was filed on April 23, 1969, several weeks prior to this Court’s decision in O’Callahan v. Parker. The issue as to the propriety of trial by court-martial, perhaps understandably, was not raised before Judge Stanley or on the appeal to the Tenth Circuit ; the issue, however, had been presented in O’Cal-lahan’s chronologically earlier appeal in his habeas proceeding. See United States ex rel. O’Callahan v. Parker, 390 F. 2d 360, 363-364 (CA3 1968). II This case, as did O’Callahan, obviously falls within the area of stress between the constitutional guarantees con-tained in the Constitution’s Art. III, § 2, cl. 3, in the Sixth Amendment, and possibly in the Fifth Amendment, on the one hand, and, on the other, the power vested in 11 We are advised by the parties that Relford was released on parole on May 20, 1970. RELFORD v. U. S. DISCIPLINARY COMMANDANT 363 355 Opinion of the Court the Congress, by the Constitutions Art. I, § 8, cl. 14, “To make Rules for the Government and Régulation of the land and naval Forces,” with its supportive Necessary and Proper provision in cl. 18, and the Fifth Amend-ment’s corrélative exception for “cases arising in the land or naval forces.” Relford argues that O’Callaharis requirement that the crime be “service connected” before a court-martial may sit demands that the crime itself be military in nature, that is, one involving a level of conduct required only of servicemen and, because of the spécial needs of the military, one demanding military disciplinary action. He further states that the charges against him—like those against O’Callahan—do not involve a level of conduct required only of servicemen. He maintains that occurrence of the crimes on a military réservation and the military-dependent identity of one of his victims do not substantially support the military’s claim of a spécial need to try him. In further detail, it is stated that the Court in O’Callahan recognized that a court-martial “remains to a sig-nificant degree a specialized part of the overall mech-anism by which military discipline is preserved,” 395 U. S., at 265; that military courts, of necessity, are not impartial weighers of justice, but hâve as their primary considération the enforcement of the unique discipline required of a fighting force; and that, as a conséquence, the court-martial must be limited to the “least possible power adéquate to the end proposed.” United States ex rel. Toth v. Quarles, 350 U. S. 11, 23 (1955), citing Anderson v. Dunn, 6 Wheat. 204, 231 (1821). It is then said that the level of conduct Relford is alleged to hâve violated, that is, intercourse only with consent, is the very same level required in the civilian community and is not altered by considérations of military dependency; that his alleged crimes are no more 364 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. military than were O’Callahan’s; that the ability of the military to perform its mission remains the same whether the crimes with which he was charged were committed on base or off base ; that any interest in the maintenance of order on the base is adequately served by appréhension of the offender and trial in a civilian court; that the on-post/off-post distinction has little meaning; that it is the nature of the crime that is important; that the crimes charged to Relford stand in contrast to purely military crimes such as désertion, absence without leave, missing movement, assaulting a superior commissioned officer, and being drunk on duty, U. C. M. J. Arts. 85, 86, 87, 90, and 112, 10 U. S. C. §§ 885, 886, 887, 890, and 912; and that only crimes of the latter type hâve “an immédiate adverse impact upon the ability of the military to perform its mission,” and are “proper subjects for the exercise of military jurisdiction.” III In evaluating the force of this argument, the facts of O’Callahan and the précisé holding in that case possess particular significance. We repeat: O’Callahan was in military service at the time and was stationed at a base in American territory. His offenses, however, took place off base in a civilian hôtel while he was on leave and not in uniform. Mr. Justice Douglas, in speaking for the Court, said: “In the présent case petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection—not even the remotest one—between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked per-forming any duties relating to the military. More-over, Hawaii, the situs of the crime, is not an armed RELFORD v. U. S. DISCIPLINARY COMMANDANT 365 355 Opinion of the Court camp under military control, as are some of our far-flung outposts. “Finally, we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open. The offenses were committed within our territorial limits, not in the occupied zone of a foreign country. The offenses did not involve any question of the flouting of military authority, the security of a military post, or the integrity of military property.” 395 U. S., at 273-274. We stress seriatim what is thus emphasized in the holding : 1. The serviceman’s proper absence from the base. 2. The crime’s commission away from the base. 3. Its commission at a place not under military control. 4. Its commission within our territorial limits and not in an occupied zone of a foreign country. 5. Its commission in peacetime and its being unrelated to authority stemming from the war power. 6. The absence of any connection between the defend-ant’s military duties and the crime. 7. The victim’s not being engaged in the performance of any duty relating to the military. 8. The presence and availability of a civilian court in which the case can be prosecuted. 9. The absence of any flouting of military authority. 10. The absence of any threat to a military post. 11. The absence of any violation of military property. One might add still another factor implicit in the others : 12. The offense’s being among those traditionally prosecuted in civilian courts. IV This listing of factors upon which the Court relied for its resuit in O’Callahan reveals, of course, that it chose 415-649 0 - 72 - 29 366 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. to take an ad hoc approach to cases where trial by court-martial is challenged. We therefore turn to those factors in Relford’s case that, as spelled out in O’Callahan’s, bear upon the court-martial issue. It is at once apparent that éléments 4, 6, 8, 11, and 12, and perhaps 5 and 9, operate in Relford’s favor as they did in O’Callahan’s: The offenses were committed within the territorial limits of the United States; there was no connection between Relford’s military duties and the crimes with which he was charged; courts in New Jersey were open and available for the prosecution of Relford; despite the Vietnam conflict we may assume for présent purposes that the offenses were committed in peacetime and that they were unrelated to any problem of authority stemming from the war power; military authority, directly at least, was not flouted ; the integrity of military property was not violated; and the crimes of râpe and kidnaping are traditionally cognizable in the civilian courts. Just as clearly, however, the other éléments, présent and relied upon in O’Callahan’s case, are not at hand in Relford’s case. These are éléments 1, 2, 3, 7, and 10: Relford was not absent from the base; the crimes were committed on the military enclave; the second victim, because of her duties at the post exchange and because of the fact that her abduction and the attack upon her took place as she was returning to the PX at the end of a short and approved break in her work, was engaged in the performance of a duty relating to the military; and the security of two women properly on the post was threatened and, indeed, their persons were violated. There are still other significant aspects of the Relford offenses: The first victim was the sister of a serviceman who was then properly at the base. The second victim was the wife of a serviceman stationed at the base; she and her husband had quarters on the base and were living RELFORD v. U. S. DISCIPLINARY COMMANDANT 367 355 Opinion of the Court there. Tangible property properly on the base, that is, two automobiles, were forcefully and unlawfully entered. V With the foregoing contrasting comparison of the pertinent factual éléments of O’Callahan with those of Rel-ford’s case, we readily conclude that the crimes with which Relford was charged were triable by a military court. We do not agréé with petitioner when he daims that the “apparent distinctions” between this case and O’Callahan “evaporate when viewed within the context of the ‘service-connected’ test.” 12 We stress: (a) The essential and obvious interest of the military in the security of persons and of property on the military enclave. Relford concédés the existence of this vital interest.13 (b) The responsibility of the military commander for maintenance of order in his command and his authority to maintain that order. See Cafétéria & Restaurant Workers Union v. McElroy, 367 U. S. 886 (1961). Relford also concédés this. (c) The impact and adverse effect that a crime committed against a person or property on a military base, thus violating the base’s very security, has upon morale, discipline, réputation and integrity of the base itself, upon its personnel and upon the military operation and the military mission, (d) The conviction that Art. I, § 8, cl. 14, vesting in the Congress the power “To make Rules for the Government and Régulation of the land and naval Forces,” means, in appropriate areas beyond the purely military offense, more than the mere power to arrest a serviceman offender and turn him over to the civil authorities. The term “Régulation” itself implies, for those appropriate cases, the power to try and to punish. (e) The distinct possi- 12 Petitioner’s Brief 9. 13 Petitioner’s Reply Brief 2. 368 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. bility that civil courts, particularly nonfederal courts, will hâve less than complété interest, concern, and capacity for ail the cases that vindicate the military’s disciplinary authority within its own community. See W. Winthrop, Military Law and Precedents 725 (2d ed. 1896, 1920 Re-print) ; Wilkinson, The Narrowing Scope of Court-Martial Jurisdiction: O’Callahan v. Parker, 9 Washburn L. J. 193, 208 (1970). (f) The very positive implication in O’Callahan itself, arising from its emphasis on the absence of service-connected éléments there, that the presence of factors such as geographical and military relationships hâve important contrary significance. (g) The récognition in O’Callahan that, historically, a crime against the person of one associated with the post was subject even to the General Article. The comment from Winthrop, supra, at 724: “Thus such crimes as theft from or robbery of an officer, soldier, post trader, or camp-follower . . . inasmuch as they directly affect military relations and préjudice military discipline, may properly be— as they frequently hâve been—the subject of charges under the présent Article. On the other hand, where such crimes are committed upon or against civilians, and not at or near a military camp or post, or in breach or violation of a military duty or order, they are not in general to be regarded as within the description of the Article, but are to be treated as civil rather than military offenses.” (Footnotes omitted.) cited both by the Court in O’Callahan, 395 U. S., at 274 n. 19, and by the dissent at 278-279, certainly so indi-cates and even goes so far as to include an offense against a civilian committed “near” a military post. (h) The misreading and undue restriction of O’Callahan if it were interpreted as confining the court-martial to the purely military offenses that hâve no counterpart in nonmilitary RELFORD v. U. S. DISCIPLINARY COMMANDANT 369 355 Opinion of the Court criminal law. (i) Our inability appropriately and mean-ingfully to draw any line between a post’s strictly mili-tary areas and its nonmilitary areas, or between a service-man-defendant’s on-duty and off-duty activities and hours on the post. This leads us to hold, and we do so hold, that when a serviceman is charged with an offense committed within or at the geographical boundary of a military post and violative of the security of a person or of property there, that offense may be tried by a court-martial. Expressing it another way: a serviceman’s crime against the person of an individual upon the base or against property on the base is “service connected,” within the meaning of that requirement as specified in O’Callahan, 395 U. S., at 272. This délinéation, we feel, fully comports with the standard of “the least possible power adéquate to the end proposed” referred to in O’Callahan, 395 U. S., at 265. By this measure, Relford’s alleged offenses were obvi-ously service connected. There is, therefore, no constitutional or statutory barrier and Relford was properly tried by a court-martial. VI We recognize that any ad hoc approach leaves outer boundaries undetermined. O’Callahan marks an area, perhaps not the limit, for the concern of the civil courts and where the military may not enter. The case today marks an area, perhaps not the limit, where the court-martial is appropriate and permissible. What lies between is for decision at another time. VII Having reached this resuit on the court-martial issue, the additional issue that the parties hâve argued, of O’Callahan’s retrospectivity, need not be decided. See Alabama State Fédération of Labor v. McAdory, 325 370 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. U. S. 450, 461 (1945). We recognize that the retro-activity question has important dimensions, both direct and collateral, and that the Government strongly urges that the question be decided here and now. We hâve concluded, however, that the issue is better resolved in other litigation where, perhaps, it would be solely dispositive of the case. We take some comfort in the hope that the présent decision should eliminate at least some of the confusion that the parties and commentators say has emerged from O’Callahan.14 Affirmed. 14 The Soliciter General supplied the following data relative to selected types of offenses over which the Army assumed jurisdiction in 1967: Number Occurring Number Occurring on Military off Military Offense Réservations Réservations 1. Homicides 30 24 2. Sexual crimes (Râpe, indécent assaults, etc.) 214 105 3. Robbery 112 44 4. Assaults 451 160 5. Burglary and Housebreaking 165 28 6. Arson 24 3 7. Larceny 1029 74 8. Larceny of motor vehicle 221 56 9. Narcotics offenses (including marihuana and dangerous drugs) 833 106 10. Disorderly conduct 59 22 BODDIE v. CONNECTICUT 371 Syllabus BODDIE ET AL. v. CONNECTICUT et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT No. 27. Argued December 8, 1969—Reargued November 17, 1970— Decided March 2, 1971 In view of the basic position of the marriage relationship in our society and the state monopolization of the means for dissolving that relationship, due process of law prohibits a State from deny-ing, solely because of inability to pay court fees and costs, access to its courts to indigents who, in good faith, seek judicial dissolution of their marriage. Pp. 374—383. 286 F. Supp. 968, reversed. Harlan, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Marshall, and Blackmun, JJ., joined. Douglas, J., filed an opinion concurring in the resuit, post, p. 383. Brennan, J., filed an opinion concurring in part, post, p. 386. Black, J., filed a dissenting opinion, post, p. 389. Arthur B. LaFrance reargued the cause and filed briefs for appellants. Raymond J. Cannon, Assistant Attorney General of Connecticut, reargued the cause for appellees. With him on the brief were Robert K. Killian, Attorney General, and William S. Kaplan. Allan Ashman filed a brief for the National Legal Aid and Defender Association as amicus curiae urging reversai. Briefs of amici curiae urging affirmance were filed by Francis B. Burch, Attorney General of Maryland, and J. Michael McWilliams, Assistant Attorney General, joined by George F. Kugler, Jr., Attorney General of New Jersey, and Stephen Skillman, Assistant Attorney General, and by the following Attorneys General: David P. 372 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Buckson of Delaware, Jack P. F. Gremïllion of Louisiana, Clarence A. H. Meyer of Nebraska, Harvey Dickerson of Nevada, Helgi Johanneson of North Dakota, and Lee Johnson of Oregon. Mr. Justice Harlan delivered the opinion of the Court. Appellants, welfare récipients residing in the State of Connecticut, brought this action in the Fédéral District Court for the District of Connecticut on behalf of them-selves and others similarly situated, challenging, as applied to them, certain state procedures for the commencement of litigation, including requirements for payment of court fees and costs for service of process, that restrict their access to the courts in their effort to bring an action for divorce. It appears from the briefs and oral argument that the average cost to a litigant for bringing an action for divorce is $60. Section 52-259 of the Connecticut General Statutes provides: “There shall be paid to the clerks of the suprême court or the superior court, for entering each civil cause, forty-five dollars ... P An additional $15 is usually required for the service of process by the sheriff, although as much as $40 or $50 may be necessary where notice must be accomplished by publication.1 There is no dispute as to the inability of the named appellants in the présent case to pay either the court fees required by statute or the cost incurred for the service of process. The affidavits in the record establish that appellants’ welfare income in each instance barely suffices 1 App. 9. The dollar figures are averages taken from the undis-puted allégations of the complaint. The particular fee the sheriff receives from the plaintiff for service of process in any one case dépends on the distance he must travel to effectuate service of process. Conn. Gen. Stat. Rev. §52-261 (1968). BODDIE v. CONNECTICUT 373 371 Opinion of the Court to meet the costs of the daily essentials of life and in-cludes no allotment that could be budgeted for the ex-pense to gain access to the courts in order to obtain a divorce. Also undisputed is appellants’ “good faith” in seeking a divorce. Assuming, as we must on this motion to dismiss the complaint, the truth of the undisputed allégations made by the appellants, it appears that they were unsuccessful in their attempt to bring their divorce actions in the Connecticut courts, simply by reason of their indigency. The clerk of the Superior Court returned their papers “on the ground that he could not accept them until an entry fee had been paid.” App. 8-9. Subséquent efforts to obtain a judicial waiver of the fee requirement and to hâve the court effect service of process were to no avail. Id., at 9. Appellants thereafter commenced this action in the Fédéral District Court seeking a judgment declaring that Connecticut’s statute and service of process provisions, “requiring payment of court fees and expenses as a condition precedent to obtaining court relief [are] unconstitutional [as] applied to these indigent [appellants] and ail other members of the class which they represent.” As further relief, appellants requested the entry of an injunction ordering the appropriate officiais to permit them “to proceed with their divorce actions without payment of fees and costs.” A three-judge court was con-vened pursuant to 28 U. S. C. § 2281, and on July 16, 1968, that court concluded that “a state [may] limit access to its civil courts and particularly in this instance, to its divorce courts, by the requirement of a filing fee or other fees which effectively bar persons on relief from commencing actions therein.” 286 F. Supp. 968, 972. We noted probable jurisdiction, 395 U. S. 974 (1969). The case was heard at the 1969 Term and thereafter was 374 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. set for reargument at the présent Term. 399 U. S. 922 (1970). We now reverse.2 Our conclusion is that, given the basic position of the marriage relationship in this so-ciety’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages. I At its core, the right to due process reflects a funda-mental value in our American constitutional System. Our understanding of that value is the basis upon which we hâve resolved this case. Perhaps no characteristic of an organized and cohesive society is more fundamental than its érection and enforcement of a System of rules defining the various rights and duties of its members, enabling them to govern their af-fairs and definitively settle their différences in an orderly, predictable manner. Without such a “legal System,” social organization and cohésion are virtually impossible ; with the ability to seek regularized resolution of con-flicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society. Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the “state of nature.” 2 Following colloquy at the oral reargument as to the possible avail-ability of public or private funds to enable plaintiffs-appellants to defray the expense requirements at issue in this case, the parties submitted further papers on this score. Nothing in these materials would justify our declining to adjudicate the constitutional question squarely presented by this record. BODDIE v. CONNECTICUT 375 371 Opinion of the Court American society, of course, bottoms its systematic définition of individual rights and duties, as well as its machinery for dispute settlement, not on custom or the will of strategically placed individuals, but on the common-law model. It is to courts, or other quasi-judicial official bodies, that we ultimately look for the implémentation of a regularized, orderly process of dispute settlement. Within this framework, those who wrote our original Copstitution, in the Fifth Amendment, and later those who drafted the Fourteenth Amendment, recognized the centrality of the concept of due process in the operation of this System. Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State’s monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just. It is upon this premise that this Court has through years of adjudication put flesh upon the due process principle. Such litigation has, however, typically involved rights of défendants—not, as here, persons seeking access to the judicial process in the first instance. This is because our society has been so structured that resort to the courts is not usually the only available, legitimate means of resolving private disputes. Indeed, private structuring of individual relationships and repair of their breach is largely encouraged in American life, subject only to the caveat that the formai judicial process, if resorted to, is paramount. Thus, this Court has seldom been asked to view access to the courts as an element of due process. The legitimacy of the State’s monopoly over techniques of final dispute settlement, even where 376 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. some are denied access to its use, stands unimpaired where recognized, effective alternatives for the adjust-ment of différences remain. But the successful invocation of this governmental power by plaintiffs has often created serious problems for défendants’ rights. For at that point, the judicial proceeding becomes the only effective means of resolving the dispute at hand and déniai of a defendant’s full access to that process raises grave problems for its legitimacy. Récognition of this theoretical framework illuminâtes the précisé issue presented in this case. As this Court on more than one occasion has recognized, marriage involves interests of basic importance in our society. See, e. g., Loving n. Virginia, 388 U. S. 1 (1967); Skinner v. Oklahoma, 316 U. S. 535 (1942) ; Meyer v. Nebraska, 262 U. S. 390 (1923). It is not surprising, then, that the States hâve seen fit to oversee many aspects of that institution. Without a prior judicial imprimatur, in-dividuals may freely enter into and rescind commercial contracts, for example, but we are unaware of any jurisdiction where private citizens may covenant for or dissolve marriages without state approval. Even where ail substantive requirements are concededly met, we know of no instance where two consenting adults may divorce and mutually liberate themselves from the constraints of legal obligations that go with marriage, and more fundamentally the prohibition against remarriage, without invoking the State’s judicial machinery. Thus, although they assert here due process rights as would-be plaintiffs, we think appellants’ plight, because resort to the state courts is the only avenue to dissolution of their marriages, is akin to that of défendants faced with exclusion from the only forum effectively empow-ered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the défendant called upon to BODDIE v. CONNECTICUT 377 371 Opinion of the Court defend his interests in court. For both groups this process is not only the paramount dispute-settlement technique, but, in fact, the only available one. In this posture we think that this appeal is properly to be resolved in light of the principles enunciated in our due process decisions that delimit rights of défendants compelled to litigate their différences in the judicial forum. Il These due process decisions, representing over a hun-dred years of effort by this Court to give concrète embodi-ment to this concept, provide, we think, complété vindication for appellants’ contentions. In particular, precedent has firmly embedded in our due process jurisprudence two important principles upon whose application we rest our decision in the case before us. A Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doctrine that “[w]herever one is assailed in his person or his property, there he may defend,” Windsor v. McVeigh, 93 U. S. 274, 277 (1876). See Baldwin v. Haie, 1 Wall. 223 (1864); Hovey v. Elliott, 167 U. S. 409 (1897). The theme that “due process of law signifies a right to be heard in one’s defence,” Hovey v. Elliott, supra, at 417, has continually recurred in the years since Baldwin, Windsor, and Hovey.3 Although “[m]any controver- 3 See Goldberg v. Kelly, 397 U. S. 254 (1970); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Armstrong v. Manzo, 380 U. S. 545 (1965); Schroeder v. New York, 371 U. S. 208, 212 (1962) ; Best v. Humboldt Placer Mining Co., 371 U. S. 334, 338 378 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. sies hâve raged about the cryptic and abstract words of the Due Process Clause,” as Mr. Justice Jackson wrote for the Court in Mullane v. Central Hanover Tr. Co., 339 U. S, 306 (1950), “there can be no doubt that at a minimum they require that deprivation of life, lib-erty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Id., at 313. Due process does not, of course, require that the de-fendant in every civil case actually hâve a hearing on the merits. A State, can, for example, enter a default judgment against a défendant who, after adéquate notice, fails to make a timely appearance, see Windsor, supra, at 278, or who, without justifiable excuse, violâtes a procédural rule requiring the production of evidence necessary for orderly adjudication, Hammond Packing Co. v. Arkansas, 212 U. S. 322, 351 (1909). What the Constitution does require is “an opportunity . . . granted at a meaningful time and in a meaningful man-ner,"Armstrong n. Manzo, 380 U. S. 545, 552 (1965) (em-phasis added), “for [a] hearing appropriate to the nature of the case,” Mullane v. Central Hanover Tr. Co., supra, at 313. The formality and procédural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subséquent proceedings.4 That the hearing required by due process (1963) ; Covey v. Town of Somers, 351 U. S. 141 (1956) ; Mullane v. Central Hanover Tr. Co., 339 U. S. 306 (1950) ; Anderson Nat. Bank v. Luckett, 321 U. S. 233, 246 (1944) ; Opp Cotton Mills v. Adminis-trator, 312 U. S. 126, 152-153 (1941) ; Morgan v. United States, 304 U. S. 1 (1938) ; United States v. Illinois Central R. Co., 291 U. S. 457, 463 (1934) ; Brinkerhoff-Paris Trust & Savings Co. v. HUI, 281 U. S. 673 (1930); Coe v. Armour Fertilizer Works, 237 U. S. 413, 423 (1915); Londoner v. Denver, 210 U. S. 373, 385-386 (1908); Louisville & Nashville R. Co. n. Schmidt, 177 U. S. 230, 236 (1900). 4 Compare Goldberg v. Kelly, supra, with In re Winship, 397 U. S. 358 (1970). See also Bowles n. Willingham, 321 U. S. 503, 520-521 (1944). BODDIE v. CONNECTICUT 379 371 Opinion of the Court is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest,5 except for extraor-dinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.6 In short, “within the limits of prac-ticability,” id., at 318, a State must afford to ail individ-ùals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause. B Our cases further establish that a statute or a rule may be held constitutionally invalid as applied when it opérâtes to deprive an individual of a protected right although its general validity as a measure enacted in the legiti-mate exercise of state power is beyond question. Thus, in cases involving religious freedom, free speech or assem-bly, this Court has often held that a valid statute was unconstitutionally applied in particular circumstances because it interfered with an individual’s exercise of those rights.7 No less than these rights, the right to a meaningful opportunity to be heard within the limits of practicality, must be protected against déniai by particular laws 5 Goldberg v. Kelly, supra; Sniadach v. Family Finance Corp., supra; Opp Cotton Mills v. Administrator, supra, at 152-153; United States v. Illinois Central R. Co., supra, at 463; Coe v. Armour Fertilizer Works, supra. 6 Cafétéria & Restaurant Workers Union v. McElroy, 367 U. S. 886 (1961); Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); Fahey n. Mallonee, 332 U. S. 245 (1947); Bowles v. Wil-lingham, supra; Yakus v. United States, 321 U. S. 414 (1944). 7 E. g., Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296 (1940); Bâtes v. Little Rock, 361 U. S. 516, 527 (1960); Sherbert n. Verner, 374 U. S. 398 (1963). 380 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. that operate to jeopardize it for particular individuals. See Mullane v. Central Hanover Tr. Co., supra; Covey v. Town oj Somers, 351 U. S. 141 (1956). In Mullane this Court held that the statutory provision for notice by publication in a local newspaper, although sufficient as to beneficiaries of a trust whose interests or addresses were unknown to the trustée, was not sufficient notice under the Due Process Clause for known beneficiaries. Similarly, Covey held that notice by publication in a foreclosure action, even though sufficient to provide a normal person with an oppor-tunity for a hearing, was not sufficient where the défendant was a known incompetent. The Court expressly rejected an argument that “the Fourteenth Amendment does not require the State to take measures in giving notice to an incompetent beyond those deemed sufficient in the case of the ordinary taxpayer.” Id., at 146. Just as a generally valid notice procedure may fail to satisfy due process because of the circumstances of the défendant, so too a cost requirement, valid on its face, may offend due process because it opérâtes to foreclose a particular party’s opportunity to be heard. The State’s obligations under the Fourteenth Amendment are not simply generalized ones; rather, the State owes to each individual that process which, in light of the values of a free society, can be characterized as due. III Drawing upon the principles established by the cases just canvassed, wTe conclude that the State’s refusai to admit these appellants to its courts, the sole means in Connecticut for obtaining a divorce, must be regarded as the équivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages, and, in the absence of a sufficient counter- BODDIE v. CONNECTICUT 381 371 Opinion of the Court vailing justification for the State’s action, a déniai of due process.8 The arguments for this kind of fee and cost require-ment are that the State’s interest in the prévention of frivolous litigation is substantial, its use of court fees and process costs to allocate scarce resources is rational, and its balance between the defendant’s right to notice and the plaintiff’s right to access is reasonable. In our opinion, none of these considérations is sufficient to override the interest of these plaintiff-appellants in having access to the only avenue open for dissolving their allegedly untenable marriages. Not only is there no necessary connection between a litigant’s assets and the seriousness of his motives in bringing suit,9 but it is here beyond présent dispute that appellants bring these actions in good faith. Moreover, other alternatives exist to fees and cost requirements as a means for conserving the time of courts and protecting parties from frivolous liti- 8 At least one court has already recognized the spécial nature of the divorce action. Justice Sobel in a case like that before us took note of the State’s involvement in the marital relationship: “Marriage is clearly marked with the public interest. In this State, a marriage cannot be dissolved except by 'due judicial pro-ceedings. . . .’ We hâve erected by statute a money hurdle to such dissolution by requiring in many circumstances the service of a summons by publication .... This hurdle is an effective barrier to [plaintiff’s] access to the courts. The loss of access to the courts in an action for divorce is a right of substantial magnitude when only through the courts may redress or relief be obtained.” Jeflreys v. Jefireys, 58 Mise. 2d 1045, 1056, 296 N. Y. S. 2d 74, 87 (1968). See also Brown v. Chastain, 416 F. 2d 1012, 1014 (CA5 1969) (Rives, J., dissenting). 9We think Cohen v. Bénéficiai Loan Corp., 337 U. S. 541 (1949), has no bearing on this case. Différences between divorce actions and dérivative actions aside, unlike Cohen, where we considered merely a statute on its face, the application of this statute here opérâtes to eut off entirely access to the courts. 415-649 0 - 72 - 30 382 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. gation, such as penalties for false pleadings or affidavits, and actions for malicious prosecution or abuse of process, to mention only a few. In the saine vein we think that reliable alternatives exist to service of process by a state-paid sheriff if the State is unwilling to assume the cost of official service. This is perforce true of service by publication which is the method of notice least calculated to bring to a potential defendant’s attention the pendency of judicial proceedings. See Mullane v. Central Hanover Tr. Co., supra. We think in this case service at defendant’s last known address by mail and posted notice is equally effective as publication in a newspaper. We are thus left to evaluate the State’s asserted interest in its fee and cost requirements as a mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U. S. 12 (1956). In Griffin it was the requirement of a transcript beyond the means of the indigent that blocked access to the judicial process. While in Griffin the transcript could be waived as a convenient but not necessary predicate to court access, here the State invariably imposes the costs as a measure of allocating its judicial resources. Surely, then, the rationale of Griffin covers this case. IV In concluding that the Due Process Clause of the Fourteenth Amendment requires that these appellants be afforded an opportunity to go into court to obtain a divorce, we wish to re-emphasize that we go no further than necessary to dispose of the case before us, a case where the bona fides of both appellants’ indigency and desire for divorce are here beyond dispute. We do not décidé that access for ail individuals to the courts is a right that is, in ail circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any in- BODDIE v. CONNECTICUT 383 371 Douglas, J., concurring in resuit dividual, for, as we hâve already noted, in the case before us this right is the exclusive precondition to the adjust-ment of a fundamental human relationship. The re-quirement that these appellants resort to the judicial process is entirely a state-created matter. Thus we hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording ail citizens access to the means it has prescribed for doing so. Reversed. Mr. Justice Douglas, concurring in the resuit. I believe this case should be decided upon the principles developed in the line of cases marked by Griffin v. Illinois, 351 U. S. 12. There we considered a state law which denied persons convicted of a crime full appellate review if they were unable to pay for a transcript of the trial. Mr. Justice Black’s opinion announcing the judgment of the Court stated: “Such a déniai is a misfit in a country dedicated to affording equal justice to ail and spécial privilèges to none in the administration of its criminal law. There can be no equal justice where the kind of a trial a man gets dépends on the amount of money he has. Destitute défendants must be afforded as adéquate appellate review as défendants who hâve money enough to buy transcripts.” Id., at 19. Griffin has had a sturdy growth. “Our decisions for more than a decade now hâve made clear that différences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the défendant, are répugnant to the Constitution.” Roberts v. LaVallee, 389 U. S. 40, 42. See also Williams v. Okla-homa City, 395 U. S. 458; Long n. District Court of lowa, 385 U. S. 192; Draper v. Washington, 372 U. S. 487. But 384 OCTOBER TERM, 1970 Douglas, J., concurring in resuit 401 U. S. Griffin has not been limited to securing a record for indigents who appeal their convictions. If the more affluent hâve counsel on appeal, then counsel for indigents must be provided on appeal of a criminal conviction. Douglas v. California, 372 U. S. 353. The tie to Griffin was ex-plicit. “In either case [Griffin or Douglas] the evil is the same: discrimination against the indigent.” Id., at 355. In Burns v. Ohio, 360 U. S. 252, we invalidated a procedure whereby cases within the jurisdiction of the state suprême court would not be considered if a person could not pay the filing fee. In Smith v. Bennett, 365 U. S. 708, we held that requiring indigents to pay filing fees before a writ of habeas corpus could be considered in state court was invalid under the Equal Protection Clause. Here Connecticut has provided requirements for mar-ried couples to obtain divorces and because of filing fees and service of process one of the requirements is having the necessary money. The more affluent can obtain a divorce; the indigent cannot. This situation is comparable to Burns N. Ohio, and Smith v. Bennett. The Due Process Clause on which the Court relies has proven very elastic in the hands of judges. “The doctrine that prevailed in Lochner [v. New York, 198 U. S. 45], Coppage [v. Kansas, 236 U. S. 1], Adkins [v. Chil-dren’s Hospital, 261 U. S. 525], [Jay] Burns [Baking Co. v. Bryan, 264 U. S. 504], and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the législature has acted unwisely— has long since been discarded.” Ferguson v. Skrupa, 372 U. S. 726, 730. I would not invite its revival. Whatever residual element of substantive law the Due Process Clause may still hâve [Thompson v. Louisville, 362 U. S. 199), it essentially régulâtes procedure. Snia-dach v. Family Finance Corp., 395 U. S. 337; Wisconsin v. C onstantineau, 400 U. S. 433. The Court today puts BODDIE v. CONNECTICUT 385 371 Douglas, J., concurring in resuit “flesh” upon the Due Process Clause by concluding that marriage and its dissolution are so important that an unhappy couple who are indigent should hâve access to the divorce courts free of charge. Fishing may be equally important to some communities. May an indigent be excused if he does not obtain a license which requires payment of money that he does not hâve? How about a requirement of an onerous bond to prevent summary éviction from rented property? The affluent can put up the bond, though the indigent may not be able to do so. See Williams n. Shaker, 385 U. S. 1037. Is housing less important to the mucilage holding society together than marriage? The examples could be multiplied. I do not see the length of the road we must follow if we accept my Brother Harlan’s invitation. The question historically has been whether the right claimed is “of the very essence of a scheme of ordered liberty.” Palko n. Connecticut, 302 U. S. 319, 325. That makes the test highly subjective and dépendent on the idiosyncrasies of individual judges as Lochner, Coppage, and Adkins illustrate. The reach of the Equal Protection Clause is not de-finable with mathematical précision. But in spite of doubts by some,* as it has been construed, rather definite guidelines hâve been developed: race is one (Strauder v. West Virginia, 100 U. S. 303; McLaughlin v. Florida, 379 U. S. 184); alienage is another (Takahashi v. Fish & Game Comm’n, 334 U. S. 410) ; religion is another (Sher-bert v. Verner, 374 U. S. 398) ; poverty is still another (Griffin v. Illinois, supra) ; and class or caste yet another (Skinner v. Oklahoma, 316 U. S. 535). The power of the States over marriage and divorce is, of course, complété except as limited by spécifie constitutional provisions. But could a State deny divorces to domiciliaries who were Negroes and grant them to whites? *See Karst, Invidious Discrimination, 16 U. C. L. A. L. Rev. 716 (1969). 386 OCTOBER TERM, 1970 Brennan, J., concurring in part 401 U. S. Deny them to résident aliens and grant them to citizens? Deny them to Catholics and grant them to Protestants? Deny them to those convicted of larceny and grant them to those convicted of embezzlement? Here the invidious discrimination is based on one of the guidelines: poverty. An invidious discrimination based on poverty is adéquate for this case. While Connecticut has provided a procedure for severing the bonds of marriage, a person can meet every requirement save court fees or the cost of service of process and be denied a divorce. Connecticut says in its brief that this is justified because “the State does not favor divorces; and only permits a divorce to be granted when those conditions are found to exist, in respect to one or the other of the named parties, which seem to the législature to make it probable that the interests of society will be better served and that parties will be happier, and so the better citizens, separate, than if compelled to remain together.” Thus, under Connecticut law divorces may be denied or granted solely on the basis of wealth. Just as denying further judicial review in Burns and Smith, appellate counsel in Douglas, and a transcript in Griffin created an invidious distinction based on wealth, so, too, does mak-ing the grant or déniai of a divorce to turn on the wealth of the parties. Affluence does not pass muster under the Equal Protection Clause for determining who must remain married and who shall be allowed to separate. Mr. Justice Brennan, concurring in part. I join the Court’s opinion to the extent that it holds that Connecticut déniés procédural due process in denying the indigent appellants access to its courts for the sole reason that they cannot pay a required fee. “ [C] on-sideration of what procedures due process may require under any given set of circumstances must begin with BODDIE v. CONNECTICUT 387 371 Brennan, J., concurring in part a détermination of the précisé nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafétéria & Restaurant Workers Union v. McElroy, 367 U. S. 886, 895 (1961); Goldberg v. Kelly, 397 U. S. 254, 263 (1970). When a State’s interest in imposing a fee re-quirement on an indigent is compared to the indigent’s interest in being heard, it is clear that the latter is the weightier. It is an un justifiable déniai of a hearing, and therefore a déniai of due process, to close the courts to an indigent on the ground of nonpayment of a fee. But I cannot join the Court’s opinion insofar as today’s holding is made to dépend upon the factor that only the State can grant a divorce and that an indigent would be locked into a marriage if unable to pay the fees required to obtain a divorce. A State has an ultimate monopoly of ail judicial process and attendant enforcement machin-ery. As a practical matter, if disputes cannot be success-fully settled between the parties, the court System is usually “the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the défendant called upon to defend his interests in court.” Ante, at 376-377. In this case, the Court holds that Connecticut’s unyielding fee requirement violâtes the Due Process Clause by denying appellants “an opportunity to be heard upon their claimed right to a dissolution of their marriages” without a sufficient coun-tervailing justification. Ante, at 380. I see no constitutional distinction between appellants’ attempt to enforce this state statutory right and an attempt to vindicate any other right arising under fédéral or state law. If fee requirements close the courts to an indigent he can no more invoke the aid of the courts for other forms of relief than he can escape the legal incidents of a marriage. The right to be heard in some way at some time extends 388 OCTOBER TERM, 1970 Brennan, J., concurring in part 401 U. S. to ail proceedings entertained by courts. The possible distinctions suggested by the Court today will not with-stand analysis. In addition, this case présents a classic problem of equal protection of the laws. The question that the Court treats exclusively as one of due process inevitably impli-cates considérations of both due process and equal protection. Certainly, there is at issue the déniai of a hearing, a matter for analysis under the Due Process Clause. But Connecticut does not deny a hearing to everyone in these circumstances; it déniés it only to people who fail to pay certain fees. The validity of this partial déniai, or différentiation in treatment, can be tested as well under the Equal Protection Clause. In Griffin v. Illinois, 351 U. S. 12 (1956), we held under the Equal Protection Clause as well as the Due Process Clause that a State may not deny a free transcript to an indigent, where the transcript is neces-sary for a direct appeal from his conviction. Subse-quently, we hâve applied and extended that principle in numerous criminal cases. See, e. g., Eskridge n. Washington State Board oj Prison Ternis & Paroles, 357 U. S. 214 (1958); Burns v. Ohio, 360 U. S., 252 (1959); Smith v. Bennett, 365 U. S. 708 (1961); Coppedge v. United States, 369 U. S. 438 (1962) ; Lane n. Brown, 372 U. S. 477 (1963); Draper v. Washington, 372 U. S. 487 (1963); Rinaldi v. Yeager, 384 U. S. 305 (1966); Long v. District Court oj lowa, 385 U. S. 192 (1966); Roberts v. LaVallee, 389 U. S. 40 (1967); Gardner v. Calijornia, 393 U. S. 367 (1969). The rationale of Grijfin covers the présent case. Courts are the central dispute-settling institutions in our society. They are bound to do equal justice under law, to rich and poor alike. They fail to perform their function in accordance with the Equal Protection Clause if they shut their doors to indigent BODDIE v. CONNECTICUT 389 371 Black, J., dissenting plaintiffs altogether. Where money détermines not merely “the kind of trial a man gets,” Griffin v. Illinois, supra, at 19, but whether he gets into court at ail, the great principle of equal protection becomes a mockery. A State may not make its judicial processes available to some but deny them to others simply because they cannot pay a fee. Cf. Harper n. Virginia Board of Elections, 383 U. S. 663 (1966). In my view, Connecticut’s fee requirement, as applied to an indigent, is a déniai of equal protection. Mr. Justice Black, dissenting. This is a strange case and a strange holding. Absent some spécifie fédéral constitutional or statutory provision, marriage in this country is completely under state control, and so is divorce. When the first settlers ar-rived here the power to grant divorces in Great Britain was not vested in that country’s courts but in its Par-liament. And as recently as 1888 this Court in May-nard v. Hill, 125 U. S. 190, upheld a divorce granted by the Législature of the Territory of Oregon. Since that time the power of state législatures to grant divorces or vest that power in their courts seems not to hâve been questioned. It is not by accident that marriage and divorce hâve always been considered to be under state control. The institution of marriage is of peculiar importance to the people of the States. It is within the States that they live and vote and rear their children under laws passed by their elected représentatives. The States provide for the stability of their social order, for the good morals of ail their citizens, and for the needs of children from broken homes. The States, therefore, hâve particular interests in the kinds of laws regulating their citizens when they enter into, maintain, and dissolve marriages. The power of the States over marriage and 390 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. divorce is complété except as limited by spécifie constitutional provisions. Loving n. Virginia, 388 U. S. 1, 7-12 (1967). The Court here holds, however, that the State of Connecticut has so little control over marriages and divorces of its own citizens that it is without power to charge them practically nominal initial court costs when they are without ready money to put up those costs. The Court holds that the state law requiring payment of costs is barred by the Due Process Clause of the Fourteenth Amendment of the Fédéral Constitution. Two members of the majority believe that the Equal Protection Clause also applies. I think the Connecticut court costs law is barred by neither of those clauses. It is true, as the majority points out, that the Court did hold in Griffin v. Illinois, 351 U. S. 12 (1956), that indigent défendants in criminal cases must be afforded the same right to appeal their convictions as is afforded to a défendant who has ample funds to pay his own costs. But in Griffin the Court studiously and carefully refrained from saying one word or one sentence suggest-ing that the rule there announced to control rights of criminal défendants would control in the quite different field of civil cases. And there are strong reasons for distinguishing between the two types of cases. Criminal défendants are brought into court by the State or Fédéral Government to defend themselves against charges of crime. They go into court knowing that they may be convicted, and condemned to lose their lives, their liberty, or their property, as a penalty for their crimes. Because of this great governmental power the United States Constitution has provided spécial protections for people charged with crime. They cannot be convicted under bills of attainder or ex post facto laws. And numerous provisions of the Bill of Rights— the right to counsel, the right to be free from coerced BODDIE v. CONNECTICUT 391 371 Black, J., dissenting confessions, and other rights—shield défendants in state courts as well as fédéral courts. See, e. g., Benton v. Maryland, 395 U. S. 784 (1969); Duncan v. Louisiana, 391 U. S. 145 (1968); Malloy v. Hogan, 378 U. S. 1 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963). With ail of these protections safeguarding défendants charged by government with crime, we quite naturally and quite properly held in Griffin that the Due Process and Equal Protection Clauses both barred any discrimination in criminal trials against poor défendants who are unable to defend themselves against the State. Had we not so held we would hâve been unfaithful to the explicit commands of the Bill of Rights, designed to wrap the protections of the Constitution around ail défendants upon whom the mighty powers of government are hurled to punish for crime. Civil lawsuits, however, are not like government prosecutions for crime. Civil courts are set up by government to give people who hâve quarrels with their neigh-bors the chance to use a neutral governmental agency to adjust their différences. In such cases the government is not usually involved as a party, and there is no deprivation of life, liberty, or property as punish-ment for crime. Our Fédéral Constitution, therefore, does not place such private disputes on the same high level as it places criminal trials and punishment. There is consequently no necessity, no reason, why government should in civil trials be hampered or handicapped by the strict and rigid due process rules the Constitution has provided to protect people charged with crime. This distinction between civil and criminal proceedings is implicit in Cohen v. Bénéficiai Loan Corp., 337 U. S. 541 (1949), where we held that a statute requiring some, but not ail, plaintiffs in stockholder dérivative actions to post a bond did not violate the Due Process or the Equal Protection Clause. The Cohen case is indistin- 392 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. guishable from the one before us. In Cohen, as here, the statute applied to plaintiffs. In both situations the legal relationships involved are creatur.es of the State, extensively governed by state law. The efïect of both statutes may be to deter frivolous or ill-considered suits, and in both instances the State has a considérable interest in the prévention of such suits, which might harm the very relationship the State created and fostered. Finally, the effect of both statutes may be to close the state courts entirely to certain plaintiffs, a resuit the Court explicitly accepted in Cohen. See id., at 552. I believe the présent case should be controlled by the Court’s thorough opinion in Cohen. The Court’s suggested distinction of Cohen on the ground that the Court there dealt only with the validity of the statute on its face ignores the following pertinent language : “It is urged that such a requirement will foreclose resort by most stockholders to the only available judicial remedy for the protection of their rights. Of course, to require security for the payment of any kind of costs, or the necessity for bearing any kind of expense of litigation, has a deterring effect. But we deal with power, not wisdom ; and we think, not-withstanding this tendency, it is within the power of a state to close its courts to this type of litigation if the condition of reasonable security is not met.” Id., at 552. (Emphasis added.) Rather, Cohen can only be distinguished on the ground that it involved a stockholders’ suit, while this case involves marriage, an interest “of basic importance in our society.” Thus the Court’s opinion appears to rest solely on a philosophy that any law violâtes due process if it is unreasonable, arbitrary, indécent, deviates from the fun-damental, is shocking to the conscience, or fails to meet BODDIE v. CONNECTICUT 393 371 Black, J., dissenting other tests composed of similar words or phrases equally lacking in any possible constitutional précision. These concepts, of course, mark no constitutional boundaries and cannot possibly dépend upon anything but the belief of particular judges, at particular times, concerning particular interests which those judges hâve divined to be of “basic importance.” I do not believe the wise men who sought to draw a written constitution to protect the people from gov-ernmental harassment and oppression, who feared alike the king and the king’s judges, would hâve used any such words or phrases. Such unbounded authority in any group of politically appointed or elected judges would unquestionably be sufficient to classify our Nation as a government of men, not the government of laws of which we boast. With a “shock the conscience” test of constitutionality, citizens must guess what is the law, guess what a majority of nine judges will believe fair and reasonable. Such a test wilfully throws away the cer-tainty and security that lies in a written constitution, one that does not alter with a judge’s health, belief, or his politics. I believe the only way to steer this country towards its great destiny is to follow what our Constitution says, not what judges think it should hâve said. For these reasons I am constrained to repeat what I said in dissent in Williams v. North Carolina, 325 U. S. 226, 271-274 (1945): “I cannot agréé to this latest expansion of fédéral power and the conséquent diminution of state power over marriage and marriage dissolution which the Court dérivés from adding a new content to the Due Process Clause. The elasticity of that clause necessary to justify this holding is found, I suppose, in the notion that it was intended to give this Court unlimited authority to supervise ail assertions of 394 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. state and fédéral power to see that they comport with our ideas of what are ‘civilized standards of law.’. . . . This perhaps is in keeping with the idea that the Due Process Clause is a blank sheet of paper provided for courts to make changes in the Constitution and the Bill of Rights in accordance with their ideas of civilization’s demands. I should leave the power over divorces in the States.” See also In re Winship, 397 U. S. 358, 377 (1970) (Black, J., dissenting). One more thought about the Due Process and Equal Protection Clauses: neither, in my judgment, justifies judges in trying to make our Constitution fit the times, or hold laws constitutional or not on the basis of a judge’s sense of fairness. The Equal Protection Clause is no more appropriate a vehicle for the “shock the conscience” test than is the Due Process Clause. See, e. g., my dissent in Harper n. Virginia Board of Elections, 383 U. S. 663, 675-680 (1966). The rules set out in the Constitution itself provide what is governmentally fair and what is not. Neither due process nor equal protection permits state laws to be invalidated on any such nonconstitu-tional standard as a judge’s personal view of fairness. The people and their elected représentatives, not judges, are constitutionally vested with the power to amend the Constitution. Judges should not usurp that power in order to put over their own views. Accordingly, I would affirm this case. TATE v. SHORT 395 Syllabus TATE v. SHORT CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS No. 324. Argued January 14, 1971—Decided March 2, 1971 Petitioner, an indigent, was convicted of traffic offenses and fined a total of $425. Though Texas law provides only for fines for such offenses, it requires that persons unable to pay must be incarcerated for sufficient time to satisfy their fines, at the rate of $5 per day, which in petitioner’s case meant an 85-day term. The state courts denied his pétition for habeas corpus. Held: It is a déniai of equal protection to limit punishment to payment of a fine for those who are able to pay it but to couvert the fine to imprisonment for those who are unable to pay it. Williams v. Illinois, 399 U. S. 235. Pp. 397-401. 445 S. W. 2d 210, reversed and remanded. Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Stewart, White, Marshall, and Blackmun, JJ., joined. Blackmun, J., filed a concurring statement, post, p. 401. Black, J., concurred in the resuit. Harlan, J., filed a statement concurring in the judgment, post, p. 401. Norman Dorsen argued the cause for petitioner. With him on the briefs were Peter Sanchez-Navarro, Jr., and Stanley A. Bass. Joseph G. Rollins argued the cause for respondent. With him on the brief were Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and Robert C. Flowers and Gilbert J. Pena, Assistant Attorneys General. Allan Ashman filed a brief for the National Legal Aid and Defender Association as amicus curiae urging reversai. 396 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Mr. Justice Brennan delivered the opinion of the Court. Petitioner accumulated fines of 8425 on nine convictions in the Corporation Court of Houston, Texas, for traffic offenses. He was unable to pay the fines because of indigency 1 and the Corporation Court, which other-wise has no jurisdiction to impose prison sentences,2 committed him to the municipal prison farm according to the provisions of a state statute and municipal ordinance 3 which required that he remain there a suffi- 1 At the habeas corpus hearing the assistant district attorney ap-pearing for the State stipulated: “We would stipulate he is poverty stricken, and that his whole family has been for ail periods of time therein, and probably always will be.” Petitioner’s uncontradicted testimony at the hearing was that, prior to his imprisonment, he earned between $25 and $60 a week in casual employment. He also received a monthly Vétérans Administration check of $104. He has a wife and two children dépendent on him for support. We were advised on oral argument that under Texas law his automobile was not subject to execution to collect the fines. 2 Tex. Code Crim. Proc., Art. 4.14 (1966) provides: “The corporation court in each incorporated city, town or village of this State shall hâve jurisdiction within the corporate limits in ail criminal cases arising under the ordinances of such city, town or village, and shall hâve concurrent jurisdiction with any justice of the peace in any precinct in which said city, town or village is situated in ail criminal cases arising under the criminal laws of this State, in which punishment is by fine only, and where the maximum of such fine may not exceed two hundred dollars, and arising within such corporate limits.” 3 Tex. Code Crim. Proc., Art. 45.53 (1966), provides in pertinent part: “A défendant placed in jail on account of failure to pay the fine and costs can be discharged on habeas corpus by showing: “1. That he is too poor to pay the fine and costs; and “2. That he has remained in jail a sufficient length of time to satisfy the fine and costs, at the rate of $5 for each day.” Houston Code § 35-8 provides : “Each person committed to the county jail or to the municipal TATE v. SHORT 397 395 Opinion of the Court cient time to satisfy the fines at the rate of five dollars for each day; this required that he serve 85 days at the prison farm. After 21 days in custody, petitioner was released on bond when he applied to the County Criminal Court of Harris County for a writ of habeas corpus. He alleged that: “Because I am too poor, I am, therefore, unable to pay the accumulated fine of $425.” The county court held that “legal cause has been shown for the imprisonment,” and denied the application. The Court of Criminal Appeals of Texas affirmed, stating: “We overrule appellant’s contention that because he is too poor to pay the fines his imprisonment is unconstitutional.” 445 S. W. 2d 210 (1969). We granted cer-tiorari, 399 U. S. 925 (1970). We reverse on the author-ity of our decision in Williams v. Illinois, 399 U. S. 235 (1970). The Illinois statute involved in Williams authorized both a fine and imprisonment. Williams was given the maximum sentence for petty theft of one year’s imprisonment and a $500 fine, plus $5 in court costs. The judgment, as permitted by the Illinois statute, provided that if, when the one-year sentence expired, Williams did not pay the fine and court costs, he wras to remain in jail a sufficient length of time to satisfy the total amount at the rate of $5 per day. We held that the Illinois statute as applied to Williams worked an invidi-ous discrimination solely because he was too poor to pay the fine, and therefore violated the Equal Protection Clause. Although the instant case involves offenses punishable by fines only, petitioner’s imprisonment for nonpay- prison farm for non-payment of their fine arising out of his conviction of a misdemeanor in the corporation court shall receive a crédit against such fine of five dollars ($5.00) for each day or fraction of a day that he has served.” 415-649 0 - 72 - 31 398 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ment constitutes precisely the same unconstitutional discrimination since, like Williams, petitioner was sub-jected to imprisonment solely because of his indigency.4 In Morris v. Schoonfield, 399 U. S. 508, 509 (1970), four members of the Court anticipated the problem of this case and stated the view, which we now adopt, that “the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immédiate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the défendant is indigent and cannot forthwith pay the fine in full.” Our opinion in Williams stated the premise of this conclusion in saying that “the Equal Protection Clause of the Fourteenth Amendment requires that the statu- 4 Houston Code § 35-9 provides : “ [ A] dditional crédit against the fine of each prisoner may be granted by the superintendent of the municipal prison farm for good conduct, industry and obedience; provided, however, that such additional crédit shall not exceed in time more than one-half (V2) day crédit on his fine for each day’s work.” An implementing régulation of the Fines Bureau Division of the Houston Corporation Court interprets this provision as follows: “If a person appears in court and is found guilty and does not hâve money to pay his fine, he is committed to jail to serve the amount of the fine at the rate of $5.00 per day. In certain cases a person may be allowed $7.50 crédit per day.” It does not appear that petitioner was granted the increased crédit for any of the 21 days he served before his release. TATE v. SHORT 399 395 Opinion of the Court tory ceiling placed on imprisonment for any substan-tive offense be the same for ail défendants irrespective of their économie status.” 399 U. S., at 244. 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 couvert the fine into a prison term for an indigent défendant without the means to pay his fine. Imprisonment in such a case is not imposed to further any penal objective of the State. It is imposed to augment the State’s revenues but obviously does not serve that purpose; the défendant cannot pay because he is indigent and his imprisonment, rather than aiding collection of the revenue, saddles the State with the cost of feeding and housing him for the period of his imprisonment. There are, however, other alternatives to which the State may constitutionally resort to serve its concededly valid interest in enforcing payment of fines. We repeat our observation in Williams in that regard, 399 U. S., at 244-245 (footnotes omitted): “The State is not powerless to enforce judgments against those financially unable to pay a fine; in-deed, a different resuit would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpay-ment whereas other défendants must always suffer one or the other conviction. “It is unnecessary for us to canvass the numerous alternatives to which the State by legislative enact-ment—or judges within the scope of their authority—may resort in order to avoid imprisoning an indigent beyond the statutory maximum for involun-tary nonpayment of a fine or court costs. Appellant has suggested several plans, some of which are 400 OCTOBER TERM, 1970 Opinion, of the Court 401 U. S. already utilized in some States, while others resemble those proposed by varions studies. The State is free to choose from among the variety of solutions already proposed and, of course, it may devise new ones.” 5 We emphasize that our holding today does not suggest any constitutional infirmity in imprisonment of a de-fendant with the means to pay a fine who refuses or neglects to do so. Nor is our decision to be understood 5 Several States hâve a procedure for paying fines in installments. E. g., Cal. Penal Code § 1205 (1970) (misdemeanors) ; Del. Code Ann., Tit. 11, §4332 (c) (Supp. 1968); Md. Ann. Code, Art. 38, § 4 (a) (2) (Supp. 1970) ; Mass. Gen. Laws Ann., c. 279, § IA (1959) ; N. Y. Code Crim. Proc. § 470-d (1) (b) (Supp. 1970) ; Pa. Stat. Ann., Tit. 19, §953 (1964); Wash. Rev. Code §9.92.070. This procedure has been widely endorsed as effective not only to collect the fine but also to save the expense of maintaining a prisoner and avoid the necessity of supporting his family under the state welfare program while he is confined. See, e. g., Final Report of the National Commission on Reform of Fédéral Criminal Laws, Proposed New Fédéral Criminal Code §3302 (2) (1971); American Bar Association, Project on Standards for Criminal Justice, Sentenc-ing Alternatives and Procedures §2.7 (b), pp. 119-122 (Approved Draft 1968) ; President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 18 (1967); ALI, Model Penal Code § 302.1 (1) (Proposed Official Draft 1962). See also Comment, Equal Protection and the Use of Fines as Penalties for Criminal Offenses, 1966 U. 111. L. F. 460; Note, The Equal Protection Clause and Imprisonment of the Indigent for Nonpayment of Fines, 64 Mich. L. Rev. 938 (1966); Note, Imprisonment for Nonpayment of Fines and Costs: A New Look at the Law and the Constitution, 22 Vand. L. Rev. 611 (1969) ; Note, Fines and Fining—An Evaluation, 101 U. Pa. L. Rev. 1013 (1953); J. Sellin, Recent Penal Législation in Sweden 14 (1947); Cordes, Fines and Their Enforcement, 2 J. Crim. Sci. 46 (1950) ; S. Rubin, H. Weihofen, G. Edwards, & S. Rosenzweig, The Law of Criminal Correction 253 and n. 154 (1963); E. Sutherland & D. Cressey, Principles of Criminology 276 (6th ed. 1960). See also Williams v. Illinois, 399 U. S., at 244-245, n. 21. TATE v. SHORT 401 395 Blackmun, J., concurring as precluding imprisonment as an enforcement method when alternative means are unsuccessful despite the défendantes reasonable efforts to satisfy the fines by those means ; the détermination of the constitutionality of imprisonment in that circumstance must await the présentation of a concrète case. The judgment of the Court of Criminal Appeals of Texas is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Black concurs in the resuit. Mr. Justice Harlan concurs in the judgment of the Court on the basis of the considérations set forth in his opinion concurring in the resuit in Williams v. Illinois, 399 U. S. 235, 259 (1970). Mr. Justice Blackmun, concurring. The Court’s opinion is couched in terms of being constitutionally protective of the indigent défendant. I merely add the observation that the reversai of this Texas judgment may well encourage state and municipal législatures to do away with the fine and to hâve the jail term as the only punishment for a broad range of traffic offenses. Eliminating the fine whenever it is prescribed as alternative punishment avoids the equal protection issue that indigency occasions and leaves only possible Eighth Amendment considérations. If, as a nation, we ever reach that happy point where we are willing to set our Personal convenience to one side and we are really serious about resolving the problems of traffic irresponsi-bility and the frightful carnage it spews upon our high-ways, a development of that kind may not be at ail undesirable. 402 OCTOBER TERM, 1970 Syllabus 401 U. S. CITIZENS TO PRESERVE OVERTON PARK, INC., et al. v. VOLPE, SECRETARY OF TRANSPORTATION, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 1066. Argued January 11, 1971—Decided March 2, 1971 Under § 4 (f) of the Department of Transportation Act of 1966 and § 138 of the Federal-Aid Highway Act of 1968, the Secretary of Transportation may not authorize use of fédéral funds to finance construction of highways through public parks if a “feasible and prudent” alternative route exists. If no such route is available, he may approve construction only if there has been “ail possible planning to minimize harm” to the park. Petitioners contend that the Secretary has violated these statutes by authorizing a six-lane Interstate highway through a Memphis public park. In April 1968 the Secretary announced that he agreed with the local officiais that the highway go through the park; in September 1969 the State acquired the right-of-way inside the park; and in November 1969 the Secretary announced final approval, including the design, of the road. Neither announcement of the Secretary was accom-panied by factual findings. Respondents introduced affidavits in the District Court, indicating that the Secretary had made the decision and that it was supportable. Petitioners filed counter affidavits and sought to take the déposition of a former fédéral highway administrator. The District Court and the Court of Appeals found that formai findings were not required and refused to order the déposition of the former administrator. Both courts held that the affidavits afforded no basis for determining that the Secretary exceeded his authority. Held: 1. The Secretary’s action is subject to judicial review pursuant to § 701 of the Administrative Procedure Act. Pp. 409-413. (a) There is no indication here that Congress sought to limit or prohibit judicial review. P. 410. (b) The exemption for action “committed to agency discrétion” does not apply as the Secretary does hâve “law to apply,” rather than wide-ranging discrétion. Pp. 410-413. 2. Although under § 706 of the Act de novo review is not required here and the Secretary’s approval of the route need not CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 403 402 Syllabus meet the substantial-evidence test, the reviewing court must conduct a substantial inquiry and détermine whether the Secretary acted within the scope of his authority, whether his decision was within the small range of available choices, and whether he could hâve reasonably believed that there were no feasible alternatives. The court must find that the actual choice was not “arbitrary, capricious, an abuse of discrétion, or otherwise not in accordance with law,” and that the Secretary followed the necessary procédural requirements. Pp. 413-416. 3. Formai findings by the Secretary are not required in this case. Pp. 417-419. (a) The relevant statutes do not require formai findings, and there is no ambiguity in the Secretary’s action. P. 417. (b) Although a régulation requiring formai findings was issued after the Secretary had approved the route, a remand to him is not necessary as there is an administrative record facilitating full and prompt review of the Secretary’s action. Pp. 417-419. 4. The case is remanded to the District Court for plenary review of the Secretary’s decision. Pp. 419-420. (a) The lower courts’ review was based on litigation affidavits, which are not the whole record and are an inadéquate basis for review. P. 419. (b) In view of the lack of formai findings, the court may require the administrative officiais who participated in the decision to give testimony explaining their action or require the Secretary to make formai findings. P. 420. 432 F. 2d 1307, reversed and remanded. Marshall, J., wrote the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, White, and Blackmun, JJ., joined. Black, J., filed a separate opinion, in which Brennan, J., joined, post, p. 421. Blackmun, J., filed a separate statement, post, p. 422. Douglas, J., took no part in the considération or decision of this case. John W. Vardaman, Jr., argued the cause for petitioners. With him on the briefs was Edward Bennett Williams. Soliciter General Griswold argued the cause for respondent Volpe. With him on the brief were Assistant 404 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Attorney General Gray, Alan S. Rosenthal, and Daniel Joseph. J. Alan Hanover argued the cause for respondent Speight. With him on the brief were David M. Pack, Attorney General of Tennessee, Lurton C. Good-pasture, Assistant Attorney General, and James B. Jalenak. Briefs of amici curiae were filed by James M. Manire and Jack Petree for the city of Memphis et ah, and by Roberts B. Owen and Gerald P. Norton for the Committee of 100 on the Fédéral City, Inc., et al. Opinion of the Court by Mr. Justice Marshall, announced by Mr. Justice Stewart. The growing public concern about the quality of our natural environment has prompted Congress in recent years to enact législation 1 designed to curb the accelerat-ing destruction of our country’s natural beauty. We are concerned in this case with § 4 (f) of the Department of Transportation Act of 1966, as amended,2 and § 18 (a) of 1 See, e. g., The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U. S. C. §4321 et seq. (1964 ed., Supp. V); Environ-mental Education Act, 84 Stat. 1312, 20 U. S. C. § 1531 et seq. (1970 ed.) ; Air Quality Act of 1967, 81 Stat. 485, 42 U. S. C. § 1857 et seq. (1964 ed., Supp. V); Environmental Quality Improvement Act of 1970, 84 Stat. 114, 42 U. S. C. §§ 4371-4374 (1970 ed.). 2 “It is hereby declared to be the national policy that spécial effort should be made to preserve the natural beauty of the countryside and public park and récréation lands, wildlife and waterfowl refuges, and historié sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After Au-gust 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, récréation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Fédéral, State, or CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 405 402 Opinion of the Court the Fédéral-Aid Highway Act of 1968, 82 Stat. 823, 23 U. S. C. § 138 (1964 ed., Supp. V) (hereafter § 138).3 These statutes prohibit the Secretary of Transportation from authorizing the use of fédéral funds to finance the construction of highways through public parks if a “feasi-ble and prudent”4 alternative route exists. If no such route is available, the statutes allow him to approve construction through parks only if there has been “ail possible planning to minimize harm” 5 to the park. local officiais having jurisdiction thereof, or any land from an historié site of national, State, or local significance as so determined by such officiais unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes ail possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historié site resulting from such use.” 82 Stat. 824, 49 U. S. C. § 1653 (f) (1964 ed., Supp. V). 3 “It is hereby declared to be the national policy that spécial effort should be made to preserve the natural beauty of the country-side and public park and récréation lands, wildlife and waterfowl refuges, and historié sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After the effective date of the Fédéral-Aid Highway Act of 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, récréation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Fédéral, State, or local officiais having jurisdiction thereof, or any land from an historié site of national, State, or local significance as so determined by such officiais unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes ail possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historié site resulting from such use.” 23 U. S. C. § 138 (1964 ed, Supp. V). 4 49 U. S. C. § 1653 (f) (1964 ed, Supp. V) ; 23 U. S. C. § 138 (1964 ed, Supp. V). 5 Ibid. 406 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Petitioners, private citizens as well as local and national conservation organizations, contend that the Sec-retary has violated these statutes by authorizing the expenditure of fédéral funds 6 for the construction of a six-lane Interstate highway through a public park in Memphis, Tennessee. Their claim was rejected by the District Court,7 which granted the Secretary’s motion for summary judgment, and the Court of Appeals for the Sixth Circuit affirmed.8 After oral argument, this Court granted a stay that halted construction and, treating the application for the stay as a pétition for certiorari, granted review.9 400 U. S. 939. We now reverse the judgment below and remand for further proceedings in the District Court. Overton Park is a 342-acre city park located near the center of Memphis. The park contains a zoo, a nine-hole municipal golf course, an outdoor theater, nature trails, a bridle path, an art academy, picnic areas, and 170 acres of forest. The proposed highway, which is to be a six-lane, high-speed, expressway,10 will sever the zoo from the rest of the park. Although the roadway will be depressed below ground level except where it crosses a small creek, 26 acres of the park will be destroyed. The highway is to be a segment of Interstate Highway 1-40, part of the National System of Interstate and 6 See 23 U. S. C. § 103. 7 The case originated in the United States District Court for the District of Columbia. On application of the Secretary of Transportation it was transferred to the United States District Court for the Western District of Tennessee, which entered the summary judgment. 8 432 F. 2d 1307 (CA6 1970). 9 This Court ordered the case to be heard on an expedited schedule. 10 The proposed right-of-way will be 250 to 450 feet wide and will follow the route of a presently existing, nonaccess bus route, which carries occasional bus traffic along a 40- to 50-foot right-of-way. CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 407 402 Opinion of the Court Defense Highways.11 1-40 will provide Memphis with a major east-west expressway which will allow easier access to downtown Memphis from the residential areas on the eastern edge of the city.12 Although the route through the park was approved by the Bureau of Public Roads in 1956 13 and by the Fédéral Highway Administrator in 1966, the enactment of § 4 (f) of the Department of Transportation Act prevented distribution of fédéral funds for the section of the highway designated to go through Overton Park until the Secretary of Transportation determined whether the requirements of § 4 (f) had been met. Fédéral funding for the rest of the project was, however, available; and the state acquired a right-of-way on both sides of the park.14 In April 1968, the Secretary announced that he concurred in the judgment of local officiais that 1^40 should be built through the park. And in September 1969 the State acquired the right-of-way inside Overton Park from the city.15 Final approval for the project—the route as well as the design— was not announced until November 1969, after Congress had reiterated in § 138 of the Fédéral-Aid Highway Act 11 See 23 U. S. C. § 103 (d) (1964 ed., Supp. V). 121-40 will also provide an express bypass for east-west traffic through Memphis. 13 At that time the Bureau of Public Roads was a part of the Department of Commerce. The Department of Transportation Act, 49 U. S. C. § 1651 et seq. (1964 ed., Supp. V), which became effective on April 1, 1967, transferred the Bureau to the new Department of Transportation. 14 The Secretary approved these acquisitions in 1967 shortly after the effective date of § 4 (f). 15 The State paid the City $2,000,000 for the 26-acre right-of-way and $206,000 to the Memphis Park Commission to replace park facilities that were to be destroyed by the highway. The city of Memphis has used $1,000,000 of these funds to pay for a new 160-acre park and it is anticipated that additional parkland will be acquired with the remaining money. 408 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. that highway construction through public parks was to be restricted. Neither announcement approving the route and design of 1-40 was accompanied by a statement of the Secretary’s factual findings. He did not indicate why he believed there were no feasible and prudent alternative routes or why design changes could not be made to reduce the harm to the park. Petitioners contend that the Secretary’s action is in-valid without such formai findings 16 and that the Secretary did not make an independent détermination but merely relied on the judgment of the Memphis City Council.17 They also contend that it would be “feasible and prudent” to route 140 around Overton Park either to the north or to the south. And they argue that if these alternative routes are not “feasible and prudent/’ the présent plan does not include “ail possible” methods for reducing harm to the park. Petitioners claim that 1-40 could be built under the park by using either of two possible tunneling methods,18 and they claim that, at a 16 Respondents argue that the only issue raised by petitioners’ pleadings is the failure of the Secretary to make formai findings. But when petitioners’ complaint is read in the revealing light of Conley v. Gïbson, 355 U. S. 41 (1957), it is clear that petitioners hâve also challenged the merits of the Secretary’s decision. 17 Petitioners contend that former Fédéral Highway Administrator Bridwell’s account of an April 3, 1968, meeting with the Memphis City Council given to the Senate Subcommittee on Roads of the Senate Committee on Public Works supports this charge. See Hear-ings on Urban Highway Planning, Location, and Design before the Subcommittee on Roads of the Senate Committee on Public Works, 90th Cong., lst and 2d Sess., pt. 2, pp. 478-480 (1968). 18 Petitioners argue that either a bored tunnel or a cut-and-cover tunnel, which is a fully depressed route covered after construction, could be built. Respondents contend that the construction of a tunnel by either method would greatly increase the cost of the project, would create safety hazards, and because of increases in air pollution would not reduce harm to the park. CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 409 402 Opinion of the Court minimum, by using advanced drainage techniques19 the expressway could be depressed below ground level along the entire route through the park including the section that crosses the small creek. Respondents argue that it was unnecessary for the Secretary to make formai findings, and that he did, in fact, exercise his own independent judgment which was sup-ported by the facts. In the District Court, respondents introduced affidavits, prepared specifically for this litigation, which indicated that the Secretary had made the decision and that the decision was supportable. These affidavits were contradicted by affidavits introduced by petitioners, who also sought to take the déposition of a former Fédéral Highway Administrator 20 who had partic-ipated in the decision to route 1-40 through Overton Park. The District Court and the Court of Appeals found that formai findings by the Secretary were not necessary and refused to order the déposition of the former Fédéral Highway Administrator because those courts believed that probing of the mental processes of an administrative decisionmaker was prohibited. And, believing that the Secretary’s authority was wide and reviewing courts’ authority narrow in the approval of highway routes, the lower courts held that the affidavits contained no basis for a détermination that the Secretary had exceeded his authority. We agréé that formai findings were not required. But we do not believe that in this case judicial review based solely on litigation affidavits was adéquate. 19 Petitioners contend that adéquate drainage could be provided by using mechanical pumps or some form of inverted siphon. They claim that such devices are often used in expressway construction. 20 Petitioners wanted to question former Highway Administrator Bridwell. See n. 17, supra. 410 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. A threshold question—whether petitioners are entitled to any judicial review—is easily answered. Section 701 of the Administrative Procedure Act, 5 U. S. C. § 701 (1964 ed., Supp. V), provides that the action of “each authority of the Government of the United States,” which includes the Department of Transportation,21 is subject to judicial review except where there is a statutory prohibition on review or where “agency action is committed to agency discrétion by law.” In this case, there is no indication that Congress sought to prohibit judicial review and there is most certainly no “showing of ‘clear and convincing evidence’ of a . . . legislative intent” to restrict access to judicial review. Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967). Brownell v. We Shung, 352 U. S. 180, 185 (1956).22 Similarly, the Secretary’s decision here does not fall within the exception for action “committed to agency discrétion.” This is a very narrow exception.23 Berger, Administrative Arbitrariness and Judicial Review, 65 Col. L. Rev. 55 (1965). The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where “statutes are drawn in such broad terms that in a given case there is no law to apply.” S. Rep. No. 752, 79th Cong., lst Sess., 26 (1945). 21 In addition, the Department of Transportation Act makes the Administrative Procedure Act applicable to proceedings of the Department of Transportation. 49 U. S. C. § 1655 (h) (1964 ed., Supp. V). 22 See also Rusk v. Cort, 369 U. S. 367, 379-380 (1962). 23 The scope of this exception has been the subject of extensive commentary. See, e. g., Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L. J. 965 (1969); Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discrétion,” 82 Harv. L. Rev. 367 (1968); Davis, Administrative Arbitrariness is Not Always Reviewable, 51 Minn. L. Rev. 643 (1967); Berger, Administrative Arbitrariness: A Sequel, 51 Minn. L. Rev. 601 (1967). CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 411 402 Opinion of the Court Section 4 (f) of the Department of Transportation Act and § 138 of the Federal-Aid Highway Act are clear and spécifie directives. Both the Department of Transportation Act and the Federal-Aid Highway Act provide that the Secretary “shall not approve any program or Project” that requires the use of any public parkland “unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes ail possible planning to minimize harm to such park ....” 23 U. S. C. § 138 (1964 ed., Supp. V) ; 49 U. S. C. § 1653 (f) (1964 ed., Supp. V). This language is a plain and explicit bar to the use of fédéral funds for construction of highways through parks—only the most unusual situations are exempted. Despite the clarity of the statutory language, respond-ents argue that the Secretary has wide discrétion. They recognize that the requirement that there be no “feasible” alternative route admits of little administrative discrétion. For this exemption to apply the Secretary must find that as a matter of Sound engineering it would not be feasible to build the highway along any other route.24 Respondents argue, however, that the requirement that there be no other “prudent” route requires the Secretary to engage in a wide-ranging balancing of competing interests. They contend that the Secretary should weigh the détriment resulting from the destruction of parkland against the cost of other routes, safety considérations, and other factors, and détermine on the basis of the importance that he attaches to these other factors whether, on balance, alternative feasible routes would be “prudent.” But no such wide-ranging endeavor was intended. It is obvious that in most cases considérations of cost, direct-ness of route, and community disruption will indicate that parkland should be used for highway construction 24 See 114 Cong. Rec. 19915 (statement by Rep. Holifield). 412 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. whenever possible. Although it may be necessary to transfer fonds from one jurisdiction to another,25 there will always be a smaller outlay required from the public purse 26 when parkland is used since the public already owns the land and there will be no need to pay for right-of-way. And since people do not live or work in parks, if a highway is built on parkland no one will hâve to leave his home or give up his business. Such factors are common to substantially ail highway construction. Thus, if Congress intended these factors to be on an equal footing with préservation of parkland there would hâve been no need for the statutes. Congress clearly did not intend that cost and dis-ruption of the community were to be ignored 27 by the Secretary.28 But the very existence of the statutes 29 indi-cates that protection of parkland was to be given para- 25 See n. 15, supra. 26 See 114 Cong. Rec. 24037 (statement by Sen. Yarborough). 27 See, e. g., S. Rep. No. 1340, 90th Cong., 2d Sess., 18-19; H. R. Rep. No. 1584, 90th Cong., 2d Sess., 12. 28 The legislative history indicates that the Secretary is not to limit his considération to information supplied by state and local officiais but is to go beyond this information and reach his own independent decision. 114 Cong. Rec. 24036-24037. 29 The legislative history of both § 4 (f) of the Department of Transportation Act, 49 U. S. C. § 1653 (f) (1964 ed., Supp. V), and § 138 of the Federal-Aid Highway Act, 23 U. S. C. § 138 (1964 ed., Supp. V), is ambiguous. The legislative committee reports tend to support respondents’ view that the statutes are merely general directives to the Secretary requiring him to consider the importance of parkland as well as cost, community disruption, and other factors. See, e. g., S. Rep. No. 1340, 90th Cong., 2d Sess., 19; H. R. Rep. No. 1584, 90th Cong., 2d Sess., 12. Statements by proponents of the statutes as well as the Senate committee report on § 4 (f) indicate, however, that the Secretary was to hâve limited authority. See, e. g., 114 Cong. Rec. 24033-24037; S. Rep. No. 1659, 89th Cong., 2d Sess., 22. See also H. R. Conf. Rep. No. 2236, 89th Cong., 2d Sess., 25. Because of this ambiguity it is clear that we must look primarily to the statutes themselves to find the legislative intent. CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 413 402 Opinion of the Court mount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors présent in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to hâve any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes présent unique problems. Plainly, there is “law to apply” and thus the exemption for action “committed to agency discrétion” is inapplicable. But the existence of judicial review is only the start: the standard for review must also be determined. For that we must look to § 706 of the Administrative Procedure Act, 5 U. S. C. § 706 (1964 ed., Supp. V), which provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found” not to meet six separate standards.30 In ail cases 30 “To the extent necessary to decision and when presented, the reviewing court shall décidé ail relevant questions of law, interpret constitutional and statutory provisions, and détermine the meaning or applicability of the terms of an agency action. The reviewing court shall— “(1) compel agency action unlawfully withheld or unreasonably delayed; and “(2) hold unlawful and set aside agency action, findings, and conclusions found to be— “(A) arbitrary, capricious, an abuse of discrétion, or otherwise not in accordance with law ; “(B) contrary to constitutional right, power, privilège, or immunity ; “(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right ; “(D) without observance of procedure required by law; “(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or “(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. “In making the foregoing déterminations, the court shall review the 415-649 0 - 72 - 32 414 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. agency action must be set aside if the action was “arbi-trary, capricious, an abuse of discrétion, or otherwise not in accordance with law” or if the action failed to meet statutory, procédural, or constitutional requirements. 5 U. S. C. §§ 706 (2) (A), (B), (C), (D) (1964 ed., Supp. V). In certain narrow, specifically limited situations, the agency action is to be set aside if the action was not sup-ported by “substantial evidence.” And in other equally narrow circumstances the reviewing court is to engage in a de novo review of the action and set it aside if it was “unwarranted by the facts.” 5 U. S. C. §§ 706 (2)(E), (F) (1964 ed., Supp. V). Petitioners argue that the Secretary’s approval of the construction of 1-40 through Overton Park is subject to one or the other of these latter two standards of limited applicability. First, they contend that the “substantial evidence” standard of § 706 (2) (E) must be applied. In the alternative, they claim that § 706 (2) (F) applies and that there must be a de novo review to détermine if the Secretary’s action was “unwarranted by the facts.” Neither of these standards is, however, applicable. Review under the substantial-evidence test is author-ized only when the agency action is taken pursuant to a rulemaking provision of the Administrative Procedure Act itself, 5 U. S. C. § 553 (1964 ed., Supp. V), or when the agency action is based on a public adjudicatory hear-ing. See 5 U. S. C. §§ 556, 557 (1964 ed., Supp. V). The Secretary’s decision to allow the expenditure of fédéral funds to build 1-40 through Overton Park was plainly not an exercise of a rulemaking function. See 1 K. Davis, Administrative Law Treatise § 5.01 (1958). And the only hearing that is required by either the Administrative Procedure Act or the statutes regulating the dis- whole record or those parts of it cited by a party, and due account shall be taken of the rule of préjudiciai error.” 5 U. S. C. § 706 (1964 ed., Supp. V). CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 415 402 Opinion of the Court tribution of fédéral funds for highway construction is a public hearing conducted by local officiais for the purpose of informing the community about the proposed project and eliciting community views on the design and route. 23 U. S. C. § 128 (1964 ed., Supp. V). The hearing is nonadjudicatory, quasi-legislative in nature. It is not designed to produce a record that is to be the basis of agency action—the basic requirement for substantial-evi-dence review. See H. R. Rep. No. 1980, 79th Cong., 2d Sess. Petitioners’ alternative argument also fails. De novo review of whether the Secretary’s decision was “unwar-ranted by the facts” is authorized by § 706 (2) (F) in only two circumstances. First, such de novo review is authorized when the action is adjudicatory in nature and the agency factfinding procedures are inadéquate. And, there may be independent judicial factfinding when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action. H. R. Rep. No. 1980, 79th Cong., 2d Sess. Neither situation exists here. Even though there is no de novo review in this case and the Secretary’s approval of the route of 1-40 does not hâve ultimately to meet the substantial-evidence test, the generally applicable standards of § 706 require the reviewing court to engage in a substantial inquiry. Cer-tainly, the Secretary’s decision is entitled to a presump-tion of regularity. See, e. g., Pacific States Box de Basket Co. v. White, 296 U. S. 176, 185 (1935) ; United States v. Chemical Foundation, 212 U. S. 1, 14—15 (1926). But that presumption is not to shield his action from a thorough, probing, in-depth review. The court is first required to décidé whether the Secretary acted within the scope of his authority. Schilling v. Rogers, 363 U. S. 666, 676-677 (1960). This détermination naturally begins with a délinéation of the scope of 416 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. the Secretary’s authority and discrétion. L. Jaffe, Judicial Control of Administrative Action 359 (1965). As has been shown, Congress has specified only a small range of choices that the Secretary can make. Also in-volved in this initial inquiry is a détermination of whether on the facts the Secretary’s decision can reason-ably be said to be within that range. The reviewing court must consider whether the Secretary properly con-strued his authority to approve the use of parkland as limited to situations where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems. And the reviewing court must be able to find that the Secretary could hâve reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems. Scrutiny of the facts does not end, however, with the détermination that the Secretary has acted within the scope of his statutory authority. Section 706 (2) (A) requires a finding that the actual choice made was not “arbitrary, capricious, an abuse of discrétion, or other-wise not in accordance with law.” 5 U. S. C. § 706 (2)(A) (1964 ed., Supp. V). To make this finding the court must consider whether the decision was based on a considération of the relevant factors and whether there has been a clear error of judgment. Jaffe, supra, at 182. See McBee v. B omar, 296 F. 2d 235, 237 (CA6 1961); In re Josephson, 218 F. 2d 174, 182 (CAI 1954) ; Western Addition Community Organization v. Weaver, 294 F. Supp. 433 (ND Cal. 1968). See also Wong Wing Hang v. Immigration and Naturalization Serv., 360 F. 2d 715, 719 (CA2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 417 402 Opinion of the Court The final inquiry is whether the Secretary’s action fol-lowed the necessary procédural requirements. Here the only procédural error alleged is the failure of the Secretary to make formai findings and state his reason for allowing the highway to be built through the park. Undoubtedly, review of the Secretary’s action is hampered by his failure to make such findings, but the absence of formai findings does not necessarily require that the case be remanded to the Secretary. Neither the Department of Transportation Act nor the Federal-Aid Highway Act requires such formai findings. Moreover, the Administrative Procedure Act requirements that there be formai findings in certain rulemaking and adjudica-tory proceedings do not apply to the Secretary’s action here. See 5 U. S. C. §§ 553 (a) (2), 554 (a) (1964 ed., Supp. V). And, although formai findings may be required in some cases in the absence of statutory directives when the nature of the agency action is ambiguous, those situations are rare. See City of Yonkers v. United States, 320 U. S. 685 (1944); American Trucking Assns. n. United States, 344 U. S. 298, 320 (1953). Plainly, there is no ambiguity here; the Secretary has approved the construction of 1^40 through Overton Park and has approved a spécifie design for the project. Petitioners contend that although there may not be a statutory requirement that the Secretary make formai findings and even though this may not be a case for the reviewing court to impose a requirement that findings be made, Department of Transportation régulations require them. This argument is based on DOT Order 5610.1,31 which requires the Secretary to make formai 31 The régulation was promulgated pursuant to Executive Order 11514, dated March 5, 1970, 35 Fed. Reg. 4247, which instructed ali fédéral agencies to initiate procedures needed to direct their policies and programs toward meeting national environmental goals. 418 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. findings when he approves the use of parkland for highway construction but which was issued after the route for 1-40 was approved.32 Petitioners argue that even though the order was not in effect at the time approval was given to the Overton Park project and even though the order was not intended to hâve rétrospective effect the order represents the law at the time of this Court’s decision and under Thorpe v. Housing Authority, 393 U. S. 268, 281-282 (1969), should be applied to this case. The Thorpe litigation resulted from an attempt to evict a tenant from a federally funded housing project under circumstances that suggested that the éviction was prompted by the tenant’s objections to the management of the project. Despite repeated requests, the Housing Authority would not give an explanation for its action. The tenant claimed that the éviction interfered with her exercise of First Amendment rights and that the failure to state the reasons for the éviction and to afford her a hearing denied her due process. After déniai of relief in the state courts, this Court granted certiorari “to consider whether [the tenant] was denied due process by the Housing Authority’s refusai to state the reasons for her éviction and to afford her a hearing at which she could contest the sufficiency of those reasons.” 393 U. S., at 272. While the case was pending in this Court, the Department of Housing and Urban Development issued régulations requiring Housing Authority officiais to inform tenants of the reasons for an éviction and to give a tenant the opportunity to reply. The case was then remanded to the state courts to détermine if the HUD régulations were applicable to that case. The state court held them not to be applicable and this Court reversed on the 32 DOT Order 5610.1 was issued on October 7, 1970. CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 419 402 Opinion of the Court ground that the general rule is “that an appellate court must apply the law in effect at the time it renders its decision.” 393 U. S., at 281. While we do not question that DOT Order 5610.1 constitutes the law in effect at the time of our decision, we do not believe that Thorpe compels us to remand for the Secretary to make formai findings.33 Here, unlike the situation in Thorpe, there has been a change in circumstances—additional right-of-way has been cleared and the 26-acre right-of-way inside Overton Park has been purchased by the State. Moreover, there is an administrative record that allows the full, prompt review of the Secretary’s action that is sought without additional delay which would resuit from having a remand to the Secretary. That administrative record is not, however, before us. The lower courts based their review on the litigation affidavits that were presented. These affidavits were merely “post hoc” rationalizations, Burlington Truck Lines v. United States, 371 U. S. 156, 168-169 (1962), which hâve traditionally been found to be an inadéquate basis for review. Burlington Truck Lines v. United States, supra; SEC n. Chenery Corp., 318 U. S. 80, 87 (1943). And they clearly do not constitute the “whole record” compiled by the agency : the basis for review required by § 706 of the Administrative Procedure Act. See n. 30, supra. 33 Even if formai findings by the Secretary were mandatory, the proper course would be to remand the case to the District Court directing that court to order the Secretary to make formai findings. See R. Robertson & F. Kirkham, Jurisdiction of the Suprême Court of the United States § 446, p. 929 (R. Wolfson & P. Kurland ed. 1951). Of course, the District Court is not prohibited from remand-ing the case to the Secretary. See infra, at 420. 420 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Thus it is necessary to remand this case to the District Court for plenary review of the Secretary’s decision. That review is to be based on the full administrative record that was before the Secretary at the time he made his decision.34 But since the bare record may not disclose the factors that were considered or the Secretary’s construction of the evidence it may be necessary for the District Court to require some explanation in order to détermine if the Secretary acted within the scope of his authority and if the Secretary’s action was justifiable under the applicable standard. The court may require the administrative officiais who participated in the decision to give testimony explain-ing their action. Of course, such inquiry into the mental processes of administrative decisionmakers is usually to be avoided. United States v. Morgan, 313 U. S. 409, 422 (1941). And where there are administrative findings that were made at the same time as the decision, as was the case in Morgan, there must be a strong showing of bad faith or improper behavior before such inquiry may be made. But here there are no such formai findings and it may be that the only way there can be effective judicial review is by exam-ining the decisionmakers themselves. See Shaughnessy n. Accardi, 349 U. S. 280 (1955). The District Court is not, however, required to make such an inquiry. It may be that the Secretary can préparé formai findings including the information required by DOT Order 5610.1 that will provide an adéquate explanation for his action. Such an explanation will, to some extent, be a “post hoc rationalization” and thus must be viewed critically. If the District Court décidés 34 The Soliciter General now urges that in order to avoid additional delay the proper course is to remand the case to the District Court for review of the full administrative record. CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 421 402 Opinion of Black, J. that additional explanation is necessary, that court should consider which method will prove the most expeditious so that full review may be had as soon as possible. Reversed and remanded. Mr. Justice Douglas took no part in the considération or decision of this case. Separate opinion of Mr. Justice Black, with whom Mr. Justice Brennan joins. I agréé with the Court that the judgment of the Court of Appeals is wrong and that its action should be reversed. I do not agréé that the whole matter should be remanded to the District Court. I think the case should be sent back to the Secretary of Transportation. It is apparent from the Court’s opinion today that the Secretary of Transportation completely failed to comply with the duty imposed upon him by Congress not to permit a federally financed public highway to run through a public park “unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes ail possible planning to minimize harm to such park . . . .” 23 U. S. C. § 138 (1964 ed., Supp. V) ; 49 U. S. C. § 1653 (f) (1964 ed., Supp. V). That con-gressional command should not be taken lightly by the Secretary or by this Court. It represents a solemn détermination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, factfindings, and policy déterminations under the supervision of a Cabinet officer—the Secretary of Transportation. The Act of Congress in connection with other fédéral highway aid législation,1 it seems to me, 1 See 23 U. S. C. § 128 (1964 ed., Supp. V) and régulations promul-gated thereunder, 34 Fed. Reg. 727-730 (1969). 422 OCTOBER TERM, 1970 Statement of Blackmun, J. 401 U. S. calls for hearings—hearings that a court can review, hearings that demonstrate more than mere arbitrary défiance by the Secretary. Whether the findings growing out of such hearings are labeled “formai” or “informai” appears to me to be no more than an exercise in semantics. Whatever the hearing requirements might be, the Department of Transportation failed to meet them in this case. I regret that I am compelled to conclude for my-self that, except for some too-late formulations, apparently coming from the Solicitor General’s office, this record contains not one word to indicate that the Secretary raised even a finger to comply with the command of Congress. It is our duty, I believe, to remand this whole matter back to the Secretary of Transportation for him to give this matter the hearing it deserves in full good-faith obedience to the Act of Congress. That Act was obviously passed to protect our public parks from forays by road builders except in the most extraordinary and impérative circumstances.2 This record does not demonstrate the existence of such circumstances. I dissent from the Court’s failure to send the case back to the Secretary, whose duty has not yet been performed. Mr. Justice Blackmun. I fully join the Court in its opinion and in its judgment. I merely wish to state the obvious: (1) The case cornes to this Court as the end product of more than a decade of endeavor to solve the Interstate highway problem at Memphis. (2) The administrative decisions under attack here are not those of a single Secretary ; some were made by the présent Secretary’s predecessor and, before him, by the Department of Commerce’s Bureau of Public 2 See also Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 400 U. S. 968, 972 (1970) (dissents from the déniai of certiorari). CITIZENS TO PRESERVE OVERTON PARK v. VOLPE 423 402 Statement of Blackmun, J. Roads. (3) The 1966 Act and the 1968 Act hâve eut across former methods and here hâve imposed new standards and conditions upon a situation that already was largely developed. This undoubtedly is why the record is sketchy and less than one would expect if the project were one which had been instituted after the passage of the 1966 Act. 424 OCTOBER TERM, 1970 Syllabus 401 U. S. GRIGGS ET AL. v. DUKE POWER CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 124. Argued December 14, 1970—Decided March 8, 1971 Negro employées at respondent’s generating plant brought this action, pursuant to Title VII of the Civil Rights Act of 1964, challenging respondent’s requirement of a high school diploma or passing of intelligence tests as a condition of employment in or transfer to jobs at the plant. These requirements were not directed at or intended to measure ability to learn to perform a particular job or category of jobs. While § 703 (a) of the Act makes it an unlawful employment practice for an employer to limit, segregate, or classify employées to deprive them of employment opportunities or adversely to affect their status because of race, color, religion, sex, or national origin, § 703 (h) authorizes the use of any pro-fessionally developed ability test, provided that it is not designed, intended, or used to discriminate. The District Court found that respondent’s former policy of racial discrimination had ended, and that Title VII, being prospective only, did not reach the prior inequities. The Court of Appeals reversed in part, rejecting the holding that residual discrimination arising from prior practices was insulated from remédiai action, but agreed with the lower court that there was no showing of discriminatory purpose in the adoption of the diploma and test requirements. It held that, absent such discriminatory purpose, use of the requirements was permit-ted, and rejected the claim that because a disproportionate number of Negroes was rendered inéligible for promotion, transfer, or employment, the requirements were unlawful unless shown to be job related. Held: 1. The Act requires the élimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that opérâtes to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer’s lack of discriminatory intent. Pp. 429-433. 2. The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force un- GRIGGS v. DUKE POWER CO. 425 424 Opinion of the Court less they are demonstrably a reasonable measure of job performance. Pp. 433-436. 420 F. 2d 1225, reversed in part. Burger, C. J., delivered the opinion of the Court, in which ail members joined except Brennan, J., who took no part in the considération or decision of the case. Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Norman C. Amaker, William L. Robinson, Conrad O. Pearson, Julius LeVonne Chambers, and Albert J. Rosenthal. George W. Ferguson, Jr., argued the cause for respondent. With him on the brief were William I. Ward, Jr., and George M. Thorpe. Lawrence M. Cohen argued the cause for the Chamber of Commerce of the United States as amicus curiae urging affirmance. With him on the brief were Francis V. Lowden, Jr., Gérard C. Smetana, and Milton A. Smith. Briefs of amici curiae urging reversai were filed by Solicitor General Griswold, Assistant Attorney General Leonard, Deputy Solicitor General Wallace, David L. Rose, Stanley Hebert, and Russell Specter for the United States; by Louis J. Lejkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and George D. Zuckerman and Dominick J. Tuminaro, Assistant Attorneys General, for the Attorney General of the State of New York; and by Bernard Kleiman, Elliot Bredhoff, Michael H. Gottesman, and George H. Cohen for the United Steelworkers of America, AFL-CIO. Mr. Chief Justice Burger delivered the opinion of the Court. We granted the writ in this case to résolve the question whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school edu- 426 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. cation or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employées as part of a longstanding practice of giving preference to whites.1 Congress provided, in Title VII of the Civil Rights Act of 1964, for class actions for enforcement of provisions of the Act and this proceeding was brought by a group of incumbent Negro employées against Duke Power Company. Ail the petitioners are employed at the Com-pany’s Dan River Steam Station, a power generating facility located at Draper, North Carolina. At the time this action was instituted, the Company had 95 employées at the Dan River Station, 14 of whom were Negroes; 13 of these are petitioners here. The District Court found that prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, the 1 The Act provides : “Sec. 703. (a) It shall be an unlawful employment practice for an employer— (2) to limit, segregate, or classify his employées in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employée, because of such individual’s race, color, religion, sex, or national origin. “(h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer . . . to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. . . .” 78 Stat. 255, 42 U. S. C. § 2000e-2. GRIGGS v. DUKE POWER CO. 427 424 Opinion of the Court Company openly discriminated on the basis of race in the hiring and assigning of employées at its Dan River plant. The plant was organized into five operating departments: (1) Labor, (2) Coal Handling, (3) Operations, (4) Maintenance, and (5) Laboratory and Test. Negroes were employed only in the Labor Department where the highest paying jobs paid less than the lowest paying jobs in the other four “operating” departments in which only whites were employed.2 Promotions were normally made within each department on the basis of job seniority. Transférées into a department usually began in the lowest position. In 1955 the Company instituted a policy of requiring a high school éducation for initial assignment to any department except Labor, and for transfer from the Coal Handling to any “inside” department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting Negroes to the Labor Department in 1965, completion of high school also was made a pre-requisite to transfer from Labor to any other department. From the time the high school requirement was instituted to the time of trial, however, white employées hired before the time of the high school éducation requirement continued to perform satisfactorily and achieve promotions in the “operating” departments. Findings on this score are not challenged. The Company added a further requirement for new employées on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department it became necessary to register satisfactory scores on two professionally prepared apti 2 A Negro was first assigned to a job in an operating department in August 1966, five months after charges had been filed with the Equal Employment Opportunity Commission. The employée, a high school graduate who had begun in the Labor Department in 1953, was promoted to a job in the Coal Handling Department. 428 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. tude tests, as well as to hâve a high school éducation. Completion of high school alone continued to render employées eligible for transfer to the four désirable de-partments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. In September 1965 the Company be-gan to permit incumbent employées who lacked a high school éducation to qualify for transfer from Labor or Coal Handling to an “inside” job by passing two tests— the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Compréhension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. The requisite scores used for both initial hiring and transfer approximated the national médian for high school graduâtes.3 The District Court had found that while the Company previously followed a policy of overt racial discrimination in a period prior to the Act, such conduct had ceased. The District Court also concluded that Title VII was intended to be prospective only and, consequently, the impact of prior inequities was beyond the reach of corrective action authorized by the Act. The Court of Appeals was confronted with a question of first impression, as are we, concerning the meaning of Title VII. After careful analysis a majority of that court concluded that a subjective test of the employer’s intent should govern, particularly in a close case, and that in this case there was no showing of a discriminatory purpose in the adoption of the diploma and test require-ments. On this basis, the Court of Appeals concluded there was no violation of the Act. 3 The test standards are thus more stringent than the high school requirement, since they would screen out approximately half of ail high school graduâtes. GRIGGS v. DUKE POWER CO. 429 424 Opinion of the Court The Court of Appeals reversed the District Court in part, rejecting the holding that residual discrimination arising from prior employment practices was insulated from remédiai action.4 The Court of Appeals noted, however, that the District Court was correct in its conclusion that there was no showing of a racial purpose or invidious intent in the adoption of the high school di-ploma requirement or general intelligence test and that these standards had been applied fairly to whites and Negroes alike. It held that, in the absence of a discrim-inatory purpose, use of such requirements was permitted by the Act. In so doing, the Court of Appeals rejected the claim that because these two requirements operated to render inéligible a markedly disproportionate number of Negroes, they were unlawful under Title VII unless shown to be job related.5 We granted the writ on these daims. 399 U. S. 926. The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and re- 4 The Court of Appeals ruled that Negroes employed in the Labor Department at a time when there was no high school or test requirement for entrance into the higher paying departments could not now be made subject to those requirements, since whites hired con-temporaneously into those departments were never subject to them. The Court of Appeals also required that the seniority rights of those Negroes be measured on a plantwide, rather than a departmental, basis. However, the Court of Appeals denied relief to the Negro employées without a high school éducation or its équivalent who were hired into the Labor Department after institution of the educational requirement. 5 One member of that court disagreed with this aspect of the decision, maintaining, as do the petitioners in this Court, that Title VII prohibits the use of employment criteria that operate in a racially exclusionary fashion and do not measure skills or abilities necessary to performance of the jobs for which those criteria are used. 415-649 0 - 72 - 33 430 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. move barriers that hâve operated in the past to favor an identifiable group of white employées over other employées. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices. The Court of Appeals’ opinion, and the partial dissent, agreed that, on the record in the présent case, “whites register far better on the Company’s alternative requirements” than Negroes.6 420 F. 2d 1225, 1239 n. 6. This conséquence would appear to be directly traceable to race. Basic intelligence must hâve the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners hâve long received inferior éducation in segregated schools and this Court expressly recognized these différences in Gaston County n. United States, 395 U. S. 285 (1969). There, because of the inferior éducation received by Negroes in North Carolina, this Court barred the institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any 6 In North Carolina, 1960 census statistics show that, while 34% of white males had completed high school, only 12% of Negro males had done so. U. S. Bureau of the Census, U. S. Census of Population: 1960, Vol. 1, Characteristics of the Population, pt. 35, Table 47. Similarly, with respect to standardized tests, the EEOC in one case found that use of a battery of tests, including the Wonderlic and Bennett tests used by the Company in the instant case, resulted in 58% of whites passing the tests, as compared with only 6% of the blacks. Decision of EEOC, CCH Empl. Prac. Guide, H 17,304.53 (Dec. 2, 1966). See also Decision of EEOC 70-552, CCH Empl. Prac. Guide, T 6139 (Feb. 19, 1970). GRIGGS v. DUKE POWER CO. 431 424 Opinion of the Court person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate in-vidiously to discriminate on the basis of racial or other impermissible classification. Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job-seeker be taken into account. It has—to resort again to the fable—provided that the vessel in which the milk is proffered be one ail seekers can use. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touch-stone is business necessity. If an employment practice which opérâtes to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. On the record before us, neither the high school com-pletion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company’s judgment that they generally would improve the over-all quality of the work force. The evidence, however, shows that employées who hâve not completed high school or taken the tests hâve continued to perform satisfactorily and make progress in departments for which the high school and test cri- 432 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. teria are now used.7 The promotion record of présent employées who would not be able to meet the new criteria thus suggests the possibility that the requirements may not be needed even for the limited purpose of preserving the avowed policy of advancement within the Company. In the context of this case, it is unnecessary to reach the question whether testing requirements that take into ac-count capability for the next succeeding position or related future promotion might be utilized upon a show-ing that such long-range requirements fulfill a genuine business need. In the présent case the Company has made no such showing. The Court of Appeals held that the Company had adopted the diploma and test requirements without any “intention to discriminate against Negro employées.” 420 F. 2d, at 1232. We do not suggest that either the District Court or the Court of Appeals erred in examining the employer’s intent; but good intent or absence of dis-criminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability. The Company’s lack of discriminatory intent is sug-gested by spécial efforts to help the undereducated employées through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the conséquences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must hâve a manifest relationship to the employment in question. 7 For example, between July 2, 1965, and November 14, 1966, the percentage of white employées who were promoted but who were not high school graduâtes was nearly identical to the percentage of nongraduates in the entire white work force. GRIGGS v. DUKE POWER CO. 433 424 Opinion of the Court The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capa-bility. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of cer-tificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the com-monsense proposition that they are not to become masters of reality. The Company contends that its general intelligence tests are specifically permitted by § 703 (h) of the Act.8 That section authorizes the use of “any professionally developed ability test” that is not “designed, intended or used to discriminate because of race . . . .” (Empha-sis added.) The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting § 703 (h) to permit only the use of job-related tests.9 The administrative interprétation of the 8 Section 703 (h) applies only to tests. It has no applicability to the high school diploma requirenient. 9 EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: “The Commission accordingly interprets 'professionally developed ability test’ to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant’s ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test préparation does not, without more, justify its use within the meaning of Title VII.” The EEOC position has been elaborated in the new Guidelines on Employée Sélection Procedures, 29 CFR § 1607, 35 Fed. Reg. 12333 (Aug. 1, 1970). These guidelines demand that employers using tests hâve available “data demonstrating that the test is prédictive of or significantly correlated with important éléments of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” Id., at § 1607.4 (c). 434 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Act by the enforcing agency is entitled to great deference. See, e. g., United States v. City oj Chicago, 400 U. S. 8 (1970); Udall v. Tallman, 380 U. S. 1 (1965); Power Reactor Co. v. Electricians, 367 U. S. 396 (1961). Since the Act and its legislative history support the Commis-sion’s construction, this affords good reason to treat the guidelines as expressing the will of Congress. Section 703 (h) was not contained in the House version of the Civil Rights Act but was added in the Senate during extended debate. For a period, debate revolved around daims that the bill as proposed would prohibit ail testing and force employers to hire unqualified persons simply because they were part of a group formerly subject to job discrimination.10 Proponents of Title VII sought throughout the debate to assure the critics that the Act would hâve no effect on job-related tests. Sen-ators Case of New Jersey and Clark of Pennsylvania, comanagers of the bill on the Senate floor, issued a mémorandum explaining that the proposed Title VII “expressly protects the employer’s right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications. Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” 110 Cong. Rec. 7247.11 (Emphasis added.) Despite 10 The congressional discussion was prompted by the decision of a hearing examiner for the Illinois Fair Employment Commission in Myart v. Motorola Co. (The decision is reprinted at 110 Cong. Rec. 5662.) That case suggested that standardized tests on which whites performed better than Negroes could never be used. The decision was taken to mean that such tests could never be justi-fied even if the needs of the business required them. A number of Senators feared that Title VII might produce a similar resuit. See remarks of Senators Ervin, 110 Cong. Rec. 5614—5616; Smathers, id., at 5999-6000; Holland, id., at 7012-7013; Hill, id., at 8447; Tower, id., at 9024; Tahnadge, id., at 9025-9026; Fulbright, id., at 9599-9600; and Ellender, id., at 9600. 11 The Court of Appeals majority, in finding no requirement in Title VII that employment tests be job related, relied in part on a GRIGGS v. DUKE POWER CO. 435 424 Opinion of the Court these assurances, Senator Tower of Texas introduced an amendment authorizing “professionally developed ability tests.” Proponents of Title VII opposed the amendment because, as written, it would permit an employer to give any test, “whether it was a good test or not, so long as it was professionally designed. Discrimination could actually exist under the guise of compliance with the statute.” 110 Cong. Rec. 13504 (remarks of Sen. Case). The amendment was defeated and two days later Senator Tower offered a substitute amendment which was adopted Verbatim and is now the testing provision of § 703 (h). Speaking for the supporters of Title VII, Senator Humphrey, who had vigorously opposed the first amendment, endorsed the substitute amendment, stating : “Senators on both sides of the aisle who were deeply interested in title VII hâve examined the text of this quotation from an earlier Clark-Case interprétative mémorandum addressed to the question of the constitutionality of Title VII. The Senators said in that mémorandum: “There is no requirement in title VII that employers abandon bona fide qualification tests where, because of différences in back-ground and éducation, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to détermine which applicants hâve these qualifications, and he may hire, assign, and promote on the basis of test performance.” 110 Cong. Rec. 7213. However, nothing there stated conflicts with the later mémorandum dealing specifically with the debate over employer testing, 110 Cong. Rec. 7247 (quoted from in the text above), in which Senators Clark and Case explained that tests which measure “applicable job qualifications” are permissible under Title VII. In the earlier mémorandum Clark and Case assured the Senate that employers were not to be prohibited from using tests that détermine qualifications. Certainly a reasonable interprétation of what the Senators meant, in light of the subséquent mémorandum directed specifically at employer testing, was that nothing in the Act prevents employers from requiring that applicants be fit for the job. 436 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. amendment and hâve found it to be in accord with the intent and purpose of that title.” 110 Cong. Rec. 13724. The amendment was then adopted.12 From the sum of the legislative history relevant in this case, the conclusion is inescapable that the EEOC’s construction of § 703 (h) to require that employment tests be job related comports with congressional intent. Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mech-anisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract. The judgment of the Court of Appeals is, as to that portion of the judgment appealed from, reversed. Mr. Justice Brennan took no part in the considération or decision of this case. 12 Senator Tower’s original amendment provided in part that a test would be permissible “if ... in the case of any individual who is seeking employment with such employer, such test is designed to détermine or predict whether such individual is suitable or trainable with respect to his employment in the particular business or enter-prise involved . . . 110 Cong. Rec. 13492. This language indicates that Senator Tower’s aim was simply to make certain that job-related tests would be permitted. The opposition to the amendment was based on its loose wording which the proponents of Title VII feared would be susceptible of misinterpretation. The final amendment, which was acceptable to ail sides, could hardly hâve required less of a job relation than the first. GILLETTE v. UNITED STATES 437 Syllabus GILLETTE v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 85. Argued December 9, 1970—Decided March 8, 1971* Petitioner in No. 85, who was convicted for failure to report for induction, and petitioner in No. 325, who sought discharge from the armed forces upon receipt of orders for Vietnam duty, claim exemption from military service because of their conscientious objection to participation in the Vietnam conflict, as an “unjust” war, pursuant to §6 (j) of the Military Sélective Service Act of 1967. That section provides that no person shall be subject to “service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” Petitioners also challenge the constitutionality of §6(j) as construed to cover only objectors to ail war, as violative of the Free Exercise and Establishment of Religion Clauses of the First Amendment. Held: 1. The exemption for those who oppose “participation in war in any form” applies to those who oppose participating in ail war and not to those who object to participation in a particular war only, even if the latter objection is religious in character. Pp. 441-448. 2. Section 6 (j) does not viola te the Establishment Clause of the First Amendment. Pp. 448-460. (a) The section on its face does not discriminate on the basis of religious affiliation or belief, and petitioners hâve not shown the absence of neutral, secular bases for the exemption. Pp. 450-453. (b) The exemption provision focuses on individual conscientious belief and not on sectarian affiliations. P. 454. (c) There are valid neutral reasons, with the central em-phasis on the maintenance of fairness in the administration of military conscription, for the congressional limitation of the exemption to “war in any form,” and therefore §6 (j) cannot be said to reflect a religious preference. Pp. 454-460. *Together with No. 325, Negre v. Larsen et al., on certiorari to the United States Court of Appeals for the Ninth Circuit. 438 OCTOBER TERM, 1970 Syllabus 401 U. S. 3. Section. 6 (j) does not violate the Free Exercise Clause. It is not designed to interfère with any religions practice and does not penalize any theological position. Any incidental burdens felt by petitioners are justified by the substantial governmental interests relating to military conscription. Pp. 461-462. No. 85, 420 F. 2d 298, and No. 325, 418 F. 2d 908, affirmed. Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Brennan, Stewart, White, and Blackmun, JJ., joined. Black, J., concurred in the judgment and in Part I of the Court’s opinion. Douglas, J., filed dissenting opinions, post, p. 463 and p. 470. Conrad J. Lynn argued the cause for petitioner in No. 85. With him on the brief were Leon Friedman, Marvin M. Karpatkin, and Melvin L. Wulf. Richard Harrington argued the cause for petitioner in No. 325. With him on the briefs were Leigh Athearn, Stuart J. Land, and John T. Noonan, Jr. Solicitor General Griswold argued the cause for the United States and for the other respondents in both cases. With him on the briefs were Assistant Attorney General Wilson and Béatrice Rosenberg. George T. Altman, pro se, filed a brief as amicus curiae in both cases. Léo Rosen filed a brief for the American Ethical Union as amicus curiae in No. 85. Briefs of amici curiae in No. 325 were filed by Charles H. Tuttle and Thomas A. Shaw, Jr., for the National Council of the Churches of Christ in the U. S. A. et al. ; by Peter J. Donnici for the Executive Board of the National Fédération of Priests’ Councils; by Joseph B. Robison, Ephraim Margolin, Stanley J. Friedman, Seymour Farber, and Edwin J. Lukas for the American Jewish Congress; by Michael N. Poïlet and Elsbeth Levy Bothe for Louis P. Font ; and by the American Friends Service Committee. GILLETTE v. UNITED STATES 439 437 Opinion of the Court Mr. Justice Marshall delivered the opinion of the Court. These cases présent the question whether conscientious objection to a particular war, rather than objection to war as such, relieves the objecter from responsibilities of military training and service. Specifically, we are called upon to décidé whether conscientious scruples relating to a particular conflict are within the purview of estab-lished provisions1 relieving conscientious objectors to war from military service. Both petitioners also invoke constitutional principles barring government interférence with the exercise of religion and requiring governmental neutrality in matters of religion. In No. 85, petitioner Gillette was convicted of wilful failure to report for induction into the armed forces. Gillette defended on the ground that he should hâve been ruled exempt from induction as a conscientious objecter to war. In support of his unsuccessful request for classification as a conscientious objector, this petitioner had stated his willingness to participate in a war of national defense or a war sponsored by the United Nations as a peace-keeping measure, but declared his opposition to American military operations in Vietnam, which he char-acterized as “unjust.” Petitioner concluded that he could not in conscience enter and serve in the armed forces during the period of the Vietnam conflict. Gillette’s view of his duty to abstain from any involvement in a war seen as unjust is, in his words, “based on a humanist approach to religion,” and his personal decision concern-ing military service was guided by fundamental principles of conscience and deeply held views about the purpose and obligation of human existence. 1 The relevant provisions are set down injra, at nn. 4, 5, and 6, and at accompanying text. 440 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. The District Court determined that there was a basis in fact to support administrative déniai of exemption in Gillette’s case. The déniai of exemption was upheld, and Gillette’s defense to the criminal charge rejected, not because of doubt about the sincerity or the religious character of petitioner’s objection to military service, but because his objection ran to a particular wTar. In affirm-ing the conviction, the Court of Appeals concluded that Gillette’s conscientious beliefs “were specifically directed against the war in Vietnam,” while the relevant exemption provision of the Military Sélective Service Act of 1967, 50 U. S. C. App. § 456 (j) (1964 ed., Supp. V), “requires opposition ‘to participation in war in any form.’ ” 420 F. 2d 298, 299-300 (CA2 1970). In No. 325, petitioner Negre, after induction into the Army, completion of basic training, and receipt of orders for Vietnam duty, commenced proceedings looking to his discharge as a conscientious objector to war. Application for discharge was denied, and Negre sought judicial relief by habeas corpus. The District Court found a basis in fact for the Army’s rejection of petitioner’s application for discharge. Habeas relief was denied, and the déniai was affirmed on appeal, because, in the language of the Court of Appeals, Negre “objects to the war in Vietnam, not to ail wars,” and therefore does “not qualify for séparation [from the Army], as a conscientious objector.” 2 418 F. 2d 908, 909-910 (CA9 1969). Again, no question is raised as to the sincerity or the religious quality of this petitioner’s views. In line with religious counseling and numerous religious texts, Negre, 2 Since petitioner Negre is no longer on active duty in the Army, the dispute in No. 325 lacks the same intensity that was présent at the time that Negre commenced his habeas action. However, some possibility of Vietnam duty apparently remains, and the Government seems to concédé that the case has not been mooted. We therefore pursue the matter no further. GILLETTE v. UNITED STATES 441 437 Opinion of the Court a devout Catholic, believes that it is his duty as a faith-ful Catholic to discriminate between “just” and “unjust” wars, and to forswear participation in the latter. His assessment of the Vietnam conflict as an unjust war became clear in his mind after completion of infantry training, and Negre is now firmly of the view that any Personal involvement in that war would contravene his conscience and “ail that I had been taught in my religions training.” We granted certiorari in these cases, 399 U. S. 925 (1970), in order to résolve vital issues concerning the exercise of congressional power to raise and support armies, as affected by the religious guarantees of the First Amendment. We affirm the judgments below in both cases. I Each petitioner daims a nonconstitutional right to be relieved of the duty of military service in virtue of his conscientious scruples.3 Both daims turn on the proper construction of § 6 (j) of the Military Sélective Service Act of 1967, 50 U. S. C. App. § 456 (j) (1964 ed., Supp. V), which provides: “Nothing contained in this title . . . shall be con-strued to require any person to be subject to com-batant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” 4 3 Both petitioners asked to be spared ail military responsibilities because of their objections to the Vietnam conflict—Gillette sought exemption from the draft; Negre sought discharge from the Army. 4 Section 6 (j ) provides further : “As used in this subsection, the term ‘religious training and belief’ does not include essentially political, sociological, or philosophical views, or a merely personal moral code. Any person claiming exemp- 442 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. This language Controls Gillette’s claim to exemption, which was asserted administratively prior to the point of induction. Department of Defense Directive No. 1300.6 (May 10, 1968), prescribes that post-induction daims to conscientious objector status shall be honored, if valid, by the various branches of the armed forces.5 Section 6 (j) of the Act, as construed by the courts, is incorporated by the various service régulations issued pursuant to the Directive,6 and thus the standards for measuring daims of in-service objectors, such as Negre, are the same as the statutory tests applicable in a pre-induction situation. tion from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces . . . , be assigned to noncom-batant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be ordered . . . to perform . . . civilian work contributing to the maintenance of the national health, safety, or interest . . . 5 The Directive States : “IV. A. National Policy. [T]he Congress . . . has deemed it more essential to respect a man’s religious beliefs than to force him to serve in the Armed Forces and accordingly has provided that a person having bona fide religious objection to participation in war in any form . . . shall not be inducted into the Armed Forces . . . . “IV. B. DoD Policy. Consistent with this national policy, bona fide conscientious objection . . . by persons who are members of the Armed Forces will be recognized to the extent practicable and équitable. Objection to a particular war will not be recognized.” 6 DOD Directive No. 1300.6 itself States: “Since it is in the national interest to judge ail daims of conscientious objection by the same standards, whether made before or after entering military service, Sélective Service System standards used in determining [conscientious objector status] of draft regis-trants prior to induction shall apply to servicemen who claim conscientious objection after entering military service.” See also, e. g., Army Régulations AR 635-20 (July 31, 1970), and AR 135-25 (Sept. 2, 1970). GILLETTE v. UNITED STATES 443 437 Opinion of the Court For purposes of determining the statutory status of conscientious objection to a particular war, the focal language of § 6 (j) is the phrase, “conscientiously op-posed to participation in war in any form.” This language, on a straightforward reading, can bear but one meaning ; that conscientious scruples relating to war and military service must amount to conscientious opposition to participating personally in any war and ail war. See Welsh v. United States, 398 U. S. 333, 340, 342 (1970); id., at 347, 357 (concurring in resuit). See also United States v. Kauten, 133 F. 2d 703, 707 (CA2 1943). It matters little for présent purposes whether the words, “in any form,” are read to modify “war” or “participation.” On the first reading, conscientious scruples must implicate “war in any form,” and an objection involving a particular war rather than ail war would plainly not be covered by § 6 (j). On the other reading, an objector must oppose “participation in war.” It would strain good sense to read this phrase otherwise than to mean “participation in ail war.” For the word “war” would still be used in an unqualified, generic sense, meaning war as such. Thus, however the statutory clause be parsed, it remains that conscientious objection must run to war in any form.7 A different resuit cannot be supported by reliance on the materials of legislative history.8 Petitioners and 7 Moreover, a reading that attaches the words “in any form” to “participation,” rather than to “war,” would render § 6 (j) some-what incohérent. For that section itself allows a person having the specified conscientious scruples to be assigned to noncombatant service in the armed forces, if he is not “found to be conscientiously opposed to participation in such noncombatant service.” See n. 4, supra. In short, Congress had in mind that conscientious scruples should be honored if they implicate opposition to “war in any form,” even though the objector may not be averse to a noncombatant form of “participation.” 8 The roots of § 6 (j) may be found in the earliest period of American history. See generally Sélective Service System Mono-graph No. 11, Conscientious Objection 29-38 (1950). In 1775 the 444 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. amici point to no épisode or pronouncement in the legislative history of § 6 (j), or of predecessor provisions, that tends to overthrow the obvions interprétation of the words themselves.9 Continental Congress announced its résolve to respect the beliefs of “people who from Religions Principles cannot bear Arms in any case . . . Id., at 33-34. Against a background of state constitutional and statutory law exempting conscientious objectors from militia service, see United States v. Seeger, 380 U. S. 163, 170-171 (1965), Congress in 1864 explicitly exempted from the fédéral draft persons who “are conscientiously opposed to the bearing of arms, and who are prohibited from doing so by the rules and articles of faith [of their] religious dénominations.” 13 Stat. 9. The Draft Act of 1917 relieved from military service any person who belonged to “any well-recognized religious sect or organization . . . whose exist-ing creed or principles forbid its members to participate in war in any form and whose religious convictions are against war or participation therein . . . 40 Stat. 78. The Senate rejected an amend- ment to the 1917 législation that would hâve granted exemptions “[o]n the ground of a conscientious objection to the undertak-ing of combatant service in the présent war.” 55 Cong. Rec. 1478. Subséquent exemption clauses hâve eliminated any restriction in terms of sectarian affiliation, and hâve made the exemption broadly available to any conscientious objecter whose scruples concerning participation in war are grounded in “religious training and belief.” Sélective Training and Service Act of 1940, § 5 (g), 54 Stat. 889. But the phrase “participation in war in any form,” used in the 1917 enaetment, has, of course, survived the various révisions of the exempting provision. 9 Petitioners’ sole argument having spécifie reference to the legislative materials is utterly flawed. It runs as follows: the 1948 révision of the exempting provision was inspired in part by the dissent of Chief Justice Hughes in United States v. Macintosh, 283 U. S. 605 (1931); Macintosh involved a claimant whose conscientious scruples implicated only “unjust” wars, and the dissent remarked that “emi-nent statesmen here and abroad” hâve held such views, id., at 635; thus Congress cannot fairly be deemed to hâve excluded objectors to particular wars from the 1948 exempting provision, predecessor to the présent §6 (j). However, the very most that can be said about congressional reliance on the Macintosh dissent is that Congress used it in fashioning a définition of the words “religious train- GILLETTE v. UNITED STATES 445 437 Opinion of the Court It is true that the legislative materials reveal a deep concern for the situation of conscientious objectors to war, who absent spécial status would be put to a hard choice between contravening impératives of religion and conscience or suffering penalties. Moreover, there are clear indications that congressional réluctance to impose such a choice stems from a récognition of the value of conscientious action to the démocratie community at large, and from respect for the general proposition that fundamental principles of conscience and religious duty may sometimes override the demands of the secular state. See United States v. Seeger, 380 U. S. 163, 170-172 (1965); United States-v. Macintosh, 283 U. S. 605, 631-634 (1931) (dissenting opinion). See generally Sélective Service System Monograph No. 11, Conscientious Objection (1950). But there are countervailing considérations, which are also the concern of Congress,10 and the legislative materials simply do not support the view that Congress intended to recognize any conscientious claim whatever as a basis for relieving the claimant from the general responsibility or the various incidents of military service. The claim that is recognized by § 6 (j) is a ing and belief.” See United States v. Seeger, 380 U. S., at 172-179. The language of the exempting provision that is relevant to the présent dispute—"participation in war in any form”—was not altered in 1948 or thereafter. Moreover, the Macintosh dissent does not itself suggest that conscientious objection to a particular war is or has ever been a basis for relief from military service. The claimant in Macintosh did not seek relief from military service— his contention, and that of the dissent, was that conscientious unwillingness to bear arms is not a disqualifying factor, under the language of the applicable loyalty oath, in a naturalization proceed-ing. (The argument of the dissent was later adopted by the Court in Girouard v. United States, 328 U. S. 61, 64 (1946).) 10 See injra, at 454-460. See generally Report of the National Ad-visory Commission on Sélective Service, In Pursuit of Equity: Who Serves When Not AH Serve? 50-51 (1967). 415-649 0 - 72 - 34 446 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. claim of conscience running against war as such. This claim, not one involving opposition to a particular war only, was plainly the focus of congressional concern. Finding little comfort in the wording or the legislative history of § 6 (j), petitioners rely heavily on dicta in the decisional law dealing with objectors whose conscientious scruples ran against war as such, but who indicated certain réservations of an abstract nature. It is instructive that none of the cases relied upon embraces an interprétation of § 6 (j) at variance with the construction we adopt today.11 Sicurella v. United States, 348 U. S. 385 (1955), pre-sented the only previous occasion for this Court to focus on the “participation in war in any form” language of § 6 (j ). In Sicurella a Jehovah’s Witness who opposed participation in secular wars was held to possess the req-uisite conscientious scruples concerning war, although he was not opposed to participation in a “théocratie war” commanded by Jéhovah. The Court noted that the “théocratie war” réservation was highly abstract—no such war had occurred since biblical times, and none was contemplated. Congress, on the other hand, had in mind “real shooting wars,” id., at 391, and Sicurella’s abstract réservations did not undercut his conscientious opposition to participating in such wars. Plainly, Sicurella cannot be read to support the claims of those, like petitioners, 11 Perhaps more significant is the fact that even lower courts that hâve granted relief to claimants who object to particular wars, hâve done so on constitutional, not statutory, grounds, and hâve found § 6 (j) defective because it does not admit of such relief. See, e. g., United States v. McFadden, 309 F. Supp. 502 (ND Cal. 1970), app. docketed, No. 422, O. T. 1970; United States v. Sisson, 297 F. Supp. 902 (Mass. 1969), appeal dismissed for want of jurisdiction, 399 U. S. 267 (1970). Since we conclude that § 6 (j), interpreted in the obvious way, suffers no constitutional infirmity, there is no temptation to expand its intended scope by constructional fiat in order to “save” it. GILLETTE v. UNITED STATES 447 437 Opinion of the Court who for a variety of reasons consider one particular “real shooting war” to be unjust, and therefore oppose participation in that war.12 It should be emphasized that our cases explicating the “religious training and belief” clause of § 6 (j), or cognate clauses of predecessor provisions, are not relevant to the présent issue. The question here is not whether these petitioners’ beliefs concerning war are “religious” in nature. Thus, petitioners’ reliance on United States v. Seeger, 380 U. S. 163, and Welsh v. United States, 398 U. S. 333, is misplaced. Nor do we décidé that conscientious objection to a particular war necessarily falls within § 6 (j)’s expressly excluded class13 of “essen-tially political, sociological, or philosophical views, or a merely personal moral code.” Rather, we hold that Congress intended to exempt persons who oppose partici-pating in ail war—“participation in war in any form”— and that persons who object solely to participation in a particular war are not within the purview of the exempt-ing section, even though the latter objection may hâve such roots in a claimant’s conscience and personality that it is “religious” in character. A further word may be said to clarify our statutory holding. Apart from abstract theological réservations, two other sorts of réservations concerning use of force hâve been thought by lower courts not to defeat a con- 12 After noting that Sicurella’s faith involved willingness to engage in théocratie conflict, though “without carnal weapons,” the Court stated: “The test is not whether the registrant is opposed to ail war, but whether he is opposed . . . to participation in war.” 348 U. S., at 390. The plain purport of this statement is that opposition to théocratie war is not exacted, since Congress quite reasonably considered participation in “real shooting wars” to be the only sort of participation at stake. See also Taffs n. United States, 208 F. 2d 329, 331 (CA8 1953), cert. denied, 347 U. S. 928 (1954). 13 See n. 4, supra. 448 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. scientious objector claim. Willingness to use force in self-defense, in defense of home and family, or in defense against immédiate acts of aggressive violence toward other persons in the community, has not been regarded as inconsistent with a claim of conscientious objection to war as such. See, e. g., United States v. Haughton, 413 F. 2d 736, 740-742 (CA9 1969); United States v. Car-roll, 398 F. 2d 651, 655 (CA3 1968). But surely willingness to use force defensively in the personal situations mentioned is quite different from willingness to fight in some wars but not in others. Cf. Sicurella v. United States, 348 U. S., at 389. Somewhat more appo-site to the instant situation are cases dealing with persons who oppose participating in ail wars, but cannot say with complété certainty that their présent convictions and existing state of mind are unalterable. See, e. g., United States v. Owen, 415 F. 2d 383, 390 (CA8 1969). Un-willingness to deny the possibility of a change of mind, in some hypothetical future circumstances, may be no more than humble good sense, casting no doubt on the claimant’s présent sincerity of belief. At any rate there is an obvious différence between présent sincere objection to ail war, and présent opposition to participation in a particular conflict only. II Both petitioners argue that § 6 (j ), construed to cover only objectors to ail war, violâtes the religious clauses of the First Amendment. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there-of . . . Petitioners contend that Congress interfères with free exercise of religion by failing to relieve objectors to a particular war from military service, when the objection is religious or conscientious in nature. While the two religious clauses—pertaining to “free exercise” and GILLETTE v. UNITED STATES 449 437 Opinion of the Court “establishment” of religion—overlap and interact in many ways, see Abington School District v. Schempp, 374 U. S. 203, 222-223 (1963); Freund, Public Aid To Parochial Schools, 82 Harv. L. Rev. 1680, 1684 (1969), it is best to focus first on petitioners’ other contention, that § 6 (j) is a law respecting the establishment of religion. For despite free exercise overtones, the gist of the constitutional complaint is that § 6 (j) impermissibly discriminâtes among types of religious belief and affiliation.14 On the assumption that these petitioners’ beliefs concerning war hâve roots that are “religious” in nature, within the meaning of the Amendment as well as this Court’s decisions construing § 6 (j), petitioners ask how their claims to relief from military service can be per-mitted to fail, while other “religious” claims are upheld by the Act. It is a fact that § 6 (j), properly construed, has this effect. Yet we cannot conclude in mechanical fashion, or at ail, that the section works an establishment of religion. An attack founded on disparate treatment of “religious” claims invokes what is perhaps the central purpose of the Establishment Clause—the purpose of ensuring govern-mental neutrality in matters of religion. See Epperson N. Arkansas, 393 U. S. 97, 103-104 (1968); Everson v. Board of Education, 330 U. S. 1, 15-16 (1947). Here 14 Petitioners also assert that the Fifth Amendment’s Due Process Clause is violated, because the distinction embodied in § 6 (j)—be-tween objectors to ail war and objectors to particular wars—is arbitrary and capricious and works an invidious discrimination in contravention of the '‘equal protection” principles encompassed by the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U. S. 497, 499 (1954). This is not an independent argument in the context of these cases. Cf. Walz v. Tax Commission, 397 U. S. 664, 696 (1970) (opinion of Harlan, J.). We hold that the section survives the Establishment Clause because there are neutral, secular reasons to justify the line that Congress has drawn, and it follows as a more general matter that the line is neither arbitrary nor invidious. 450 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. there is no claim that exempting conscientious objectors to war amounts to an overreaching of secular purposes and an undue involvement of government in affairs of religion. Cf. Walz v. Tax Commission, 397 U. S. 664, 675 (1970); id., at 695 (opinion of Harlan, J.). To the contrary, petitioners ask for greater “entangle-ment” by judicial expansion of the exemption to cover objectors to particular wars. Necessarily the constitutional value at issue is “neutrality.” And as a general matter it is surely true that the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adhérents of any sect or religions organization. See Engel v. Vitale, 370 U. S. 421, 430-431 (1962); Torcaso v. Watkins, 367 U. S. 488, 495 (1961). The metaphor of a “wall” or impassable barrier between Church and State, taken too literally, may mis-lead constitutional analysis, see Walz v. Tax Commission, supra, at 668-669; Zorach n. Clauson, 343 U. S. 306, 312-313 (1952), but the Establishment Clause stands at least for the proposition that when government activi-ties touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact. Abington School District v. Schempp, 374 U. S., at 222; id., at 231 (Brennan, J., concurring) ; id., at 305 (Goldberg, J., concurring). A The critical weakness of petitioners’ establishment claim arises from the fact that § 6 (j), on its face, simply does not discriminate on the basis of religious affiliation or religious belief, apart of course from beliefs con-cerning war. The section says that anyone who is conscientiously opposed to ail war shall be relieved of military service. The specified objection must hâve a grounding in “religious training and belief,” but no par- GILLETTE v. UNITED STATES 451 437 Opinion of the Court ticular sectarian affiliation or theological position is required. The Draft Act of 1917, § 4, 40 Stat. 78, extended relief only to those conscientious objectors affiliated with some “well-recognized religious sect or organization” whose principles forbade members’ participation in war, but the attempt to focus on particular sects apparently broke down in administrative practice, Welsh v. United States, 398 U. S., at 367 n. 19 (concurring in resuit), and the 1940 Sélective Training and Service Act, § 5 (g), 54 Stat. 889, discarded ail sectarian restriction.15 Thereafter Congress has framed the conscientious objector exemption in broad terms compatible with “its long-established policy of not picking and choosing among religious beliefs.” United States v. Seeger, 380 U. S., at 175. Thus, there is no occasion to consider the claim that when Congress grants a benefit expressly to adhérents of one religion, courts must either nullify the grant or somehow extend the benefit to cover ail religions. For § 6 (j) does not single out any religious organization or religious creed for spécial treatment. Rather petitioners’ contention is that since Congress has recognized one sort of conscientious objection concerning war, whatever its religious basis, the Establishment Clause commands that another, different objection be carved out and protected by the courts.16 Properly phrased, petitioners’ contention is that the spécial statutory status accorded conscientious objection to ail war, but not objection to a particular war, works 15 See n. 8, supra. 16 Since we hold that the “participation in war in any form” clause of § 6 (j) does not violate the First Amendment, there is little point in dealing with the problems that would be involved in deciding whether invalidity of the restrictive clause should lead to judicial nullification of the exemption in toto or judicial expansion to cure “underinclusiveness.” 452 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. a de facto discrimination among religions. This happens, say petitioners, because some religions faiths themselves distinguish between Personal participation in “just” and in “unjust” wars, commending the former and forbidding the latter, and therefore adhérents of some religions faiths—and individuals whose personal beliefs of a religions nature include the distinction—cannot object to ail wars consistently with what is regarded as the true impérative of conscience. Of course, this contention of de facto religious discrimination, rendering § 6 (j ) fatally underinclusive, cannot simply be brushed aside. The question of governmental neutrality is not concluded by the observation that § 6 (j) on its face makes no discrimination between religions, for the Establishment Clause forbids subtle departures from neutrality, “religions gerrymanders,” as well as obvions abuses. Wdlz v. Tax Commission, 397 U. S., at 696 (opinion of Harlan, J.). See also Braunfeld v. Brown, 366 U. S. 599, 607 (1961) (opinion of Warren, C. J.); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 213, 232 (1948) (opinion of Frankfurter, J.). Still a claimant alleging “gerrymander” must be able to show the absence of a neutral, secular basis for the lines government has drawn. See Epperson v. Arkansas, 393 U. S., at 107-109; Board of Education v. Allen, 392 U. S. 236, 248 (1968); McGowan v. Maryland, 366 U. S. 420, 442-444 (1961); id., at 468 (separate opinion of Frankfurter, J.). For the reasons that follow, we believe that petitioners hâve failed to make the requisite showing with respect to § 6 (j). Section 6 (j) serves a number of valid purposes having nothing to do with a design to foster or favor any sect, religion, or cluster of religions.17 There are considera- 17 The exemption provision of the Draft Act of 1917, § 4, 40 Stat. 78, was upheld in the Sélective Draft Law Cases, 245 U. S. 366, 389-390 (1918), at an early stage in the development of First Amend- GILLETTE v. UNITED STATES 453 437 Opinion of the Court tions of a pragmatic nature, such as the hopelessness of converting a sincere conscientious objector into an effective fighting man, Welsh v. United States, 398 U. S., at 369 (White, J., dissenting), but no doubt the section reflects as well the view that “in the forum of conscience, duty to a moral power higher than the State has always been maintained.” United States v. Macintosh, 283 U. S. 605, 633 (1931) (Hughes, C. J., dissenting). See United States v. Seeger, 380 U. S., at 170-172. We hâve noted that the legislative materials show congressional concern for the hard choice that conscription would impose on conscientious objectors to war, as well as respect for the value of conscientious action and for the principle of supremacy of conscience.18 Naturally the considérations just mentioned are affirmative in character, going to support the existence of an exemption rather than its restriction specifically to persons who object to ail war. The point is that these affirmative purposes are neutral in the sense of the Establishment Clause. Quite apart from the question whether the Free Exercise Clause might require some sort of exemption,19 it is hardly impermissible for Congress to attempt to accommodate free exercise values, in line with “our happy tradition” of “avoiding unnecessary clashes with the dictâtes of conscience.” United States v. Macintosh, supra, at 634 (Hughes, C. J., dissenting). See Abington School District v. Schempp, 374 U. S., at 294-299 (Brennan, J., concurring); id., at 306 (Gold-berg, J., concurring) ; id., at 309 (Stewart, J., dissent- ment doctrine, against a constitutional attack apparently founded on both the Establishment and Free Exercise Clauses. A single sentence was devoted to the complainants’ First Amendment argument, “because we think its unsoundness is too apparent to require us to do more.” Id., at 390. 18 See supra, at 445-446. 19 See n. 23, infra. 454 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ing). See also Welsh v. United States, 398 U. S., at 370-373 (White, J., dissenting). “Neutrality” in mat-ters of religion is not inconsistent with “benevolence” by way of exemptions from onerous duties, Walz v. Tax Commission, 397 U. S., at 669, so long as an exemption is tailored broadly enough that it reflects valid secular purposes. In the draft area for 30 years the exempting provision has focused on individual conscientious belief, not on sectarian affiliation. The relevant individual belief is simply objection to ail war, not adhérence to any extraneous theological viewpoint. And while the objection must hâve roots in conscience and personality that are “religious” in nature, this requirement has never been construed to elevate con-ventional piety or religiosity of any kind above the impératives of a personal faith. In this state of afïairs it is impossible to say that § 6 (j) intrudes upon “voluntarism” in religious life, see id., at 694-696 (opinion of Harlan, J.), or that the congres-sional purpose in enacting § 6 (j) is to promote or foster those religious organizations that traditionally hâve taught the duty to abst'ain from participation in any war. A claimant, seeking judicial protection for his own conscientious beliefs, would be hard put to argue that § 6 (j) encourages membership in putatively “favored” religious organizations, for the painful dilemma of the sincere conscientious objecter arises precisely because he feels himself bound in conscience not to compromise his beliefs or affiliations. B We conclude not only that the affirmative purposes underlying § 6 (j) are neutral and secular, but also that valid neutral reasons exist for limiting the exemption to objectors to ail war, and that the section therefore cannot be said to reflect a religious preference. GILLETTE v. UNITED STATES 455 437 Opinion of the Court Apart from the Government’s need for manpower, per-haps the central interest involved in the administration of conscription laws is the interest in maintaining a fair System for determining “who serves when not ail serve.” 20 When the Government exacts so much, the importance of fair, evenhanded, and uniform decisionmaking is obvi-ously intensified. The Government argues that the interest in fairness would be jeopardized by expansion of § 6 (j) to include conscientious objection to a particular war. The contention is that the claim to relief on account of such objection is intrinsically a claim of un-certain dimensions, and that granting the claim in theory would involve a real danger of erratic or even discrimina-tory decisionmaking in administrative practice. A virtually limitless variety of beliefs are subsumable under the rubric, “objection to a particular war.” 21 Ail the factors that might go into nonconscientious dissent from policy, also might appear as the concrète basis of an objection that has roots as well in conscience and religion. Indeed, over the realm of possible situations, opposition to a particular war may more likely be political and nonconscientious, than otherwise. See United States v. Kauten, 133 F. 2d, at 708. The difficultés of sort- 20 The Report of the National Advisory Commission on Sélective Service (1967) is aptly entitled In Pursuit of Equity: Who Serves When Not AU Serve? 21 Matters relevant to such an objection, as the papers in these cases show, are whether the purposes of the war are thought ulti-mately défensive and pacifie, or otherwise; whether the conflict is legal, or its prosecution decided upon by legal means; whether the implements of war are used humanely, or whether certain weapons should be used at ail. A war may be thought “just” or not depend-ing on one’s assessment of these factors and many more: the character of the foe, or of allies; the place the war is fought; the likelihood that a military clash will issue in benefits, of various kinds, enough to override the inévitable costs of the conflict. And so on. 456 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ing the two, with a sure hand, are considérable. More-over, the belief that a particular war at a particular time is unjust is by its nature changeable and subject to nullification by changing events. Since objection may fasten on any of an enormous number of variables, the claim is ultimately subjective, depending on the claim-ant’s view of the facts in relation to his judgment that a given factor or congeries of factors colors the character of the war as a whole. In short, it is not at ail obvious in theory what sorts of objections should be deemed sufficient to excuse an objector, and there is considérable force in the Government’s contention that a program of excusing objectors to particular wars may be “impossible to conduct with any hope of reaching fair and consistent results Brief 28. For their part, petitioners make no attempt to provide a careful définition of the claim to exemption that they ask the courts to carve out and protect. They do not explain why objection to a particular conflict—much less an objection that focuses on a particular facet of a conflict—should excuse the objector from ail military service whatever, even from military operations that are connected with the conflict at hand in remote or tenuous ways.22 They suggest no solution to the problems arising from the fact that altered circumstances may quickly render the objection to military service moot. To view the problem of fairness and evenhanded de-cisionmaking, in the présent context, as merely a com-monplace chore of weeding out “spurious claims,” is to minimize substantial difficulties of real concern to a re-sponsible legislative body. For example, under the petitioners’ unarticulated scheme for exemption, an objector’s claim to exemption might be based on some feature of a current conflict that most would regard as incidental, 22 See n. 3, supra. GILLETTE v. UNITED STATES 457 437 Opinion of the Court or might be predicated on a view of the facts that most would regard as mistaken. The particular complaint about the war may itself be “sincere,” but it is difficult to know how to judge the “sincerity” of the objector’s conclusion that the war in toto is unjust and that any Personal involvement would contravene conscience and religion. To be sure we hâve ruled, in connection with § 6 (j), that “the ‘truth’ of a belief is not open to question”; rather, the question is whether the objector’s beliefs are “truly held.” United States v. Seeger, 380 U. S., at 185. See also United States v. Ballard, 322 U. S. 78 (1944). But we must also recognize that “sincerity” is a concept that can bear only so much adjudica-tive weight. Ours is a Nation of enormous heterogeneity in respect of political views, moral codes, and religious persuasions. It does not bespeak an establishing of religion for Congress to forgo the enterprise of distinguishing those whose dissent has some conscientious basis from those who simply dissent. There is a danger that as between two would-be objectors, both having the same complaint against a war, that objector would succeed who is more articulate, better educated, or better counseled. There is even a danger of unintended religious discrimination— a danger that a claim’s chances of success would be greater the more familiar or salient the claim’s connection with conventional religiosity could be made to ap-pear. At any rate, it is true that “the more discrimi-nating and complicated the basis of classification for an exemption—even a neutral one—the greatef the potential for state involvement” in determining the character of persons’ beliefs and affiliations, thus “entanglfing] government in difficult classifications of what is or is not religious,” or what is or is not conscientious. Walz v. Tax Commission, 397 U. S., at 698-699 (opinion of 458 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Harlan, J.). Cf. Presbyterian Church v. Mary Elizabeth Blue Hull Church, 393 U. S. 440 (1969). While the danger of erratic decisionmaking unfortunately exists in any System of conscription that takes individual différences into account, no doubt the dangers would be enhanced if a conscientious objection of indeterminate scope were honored in theory. In addition to the interest in fairness, the Government contends that neutral, secular reasons for the line drawn by § 6 (j)—between objection to ail war and objection to a particular war—may be found in the nature of the conscientious claim that these petitioners assert. Opposition to a particular war, states the Government’s brief, necessarily involves a judgment “that is political and particular,” one “based on the same political, socio-logical and économie factors that the government necessarily considered” in deciding to engage in a particular conflict. Brief 24-26. Taken in a narrow sense, these considérations do not justify the distinction at issue, for however “political and particular” the judgment underlying objection to a particular war, the objection still might be rooted in religion and conscience, and although the factors underlying that objection were considered and rejected in the process of démocratie decisionmaking, likewise the viewpoint of an objector to ail war was no doubt considered and “necessarily” rejected as well. Nonetheless, it can be seen on a doser view that this line of analysis, conjoined with concern for fairness, does support the statutory distinction. Tacit at least in the Government’s view of the instant cases is the contention that the limits of § 6 (j) serve an overriding interest in protecting the integrity of démocratie decisionmaking against daims to individual non-compliance. Despite emphasis on daims that hâve a “political and particular” component, the logic of the GILLETTE v. UNITED STATES 459 437 Opinion of the Court contention is sweeping. Thus the “interest” invoked is highly problematical, for it would seem to justify gov-ernmental refusai to accord any breathing space whatever to noncompliant conduct inspired by impératives of religion and conscience. On the other hand, some hâve perceived a danger that exempting persons who dissent from a particular war, albeit on grounds of conscience and religion in part, would “open the doors to a general theory of sélective disobedience to law” and jeopardize the binding quality of démocratie decisions. Report of the National Ad-visory Commission on Sélective Service, In Pursuit of Equity: Who Serves When Not Ail Serve? 50 (1967). See also Hamilton v. Regents, 293 U. S. 245, 268 (1934) (Cardozo, J., concurring). Other fields of legal obligation aside, it is undoubted that the nature of conscription, much less war itself, requires the personal desires and perhaps the dissenting views of those who must serve to be subordinated in some degree to the pursuit of public purposes. It is also true that opposition to a particular war does dépend inter alia upon particularistic factual beliefs and policy assessments, beliefs and assess-ments that presumably were overridden by the government that décidés to commit lives and resources to a trial of arms. Further, it is not unreasonable to suppose that some persons who are not prepared to assert a conscientious objection, and instead accept the hardships and risks of military service, may well agréé at ail points with the objector, yet conclude, as a matter of conscience, that they are personally bound by the decision of the démocratie process. The fear of the National Advisory Commission on Sélective Service, apparently, is that exemption of objectors to particular wars would weaken the résolve of those who otherwise would feel themselves bound to serve despite personal cost, uneasiness at the 460 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. prospect of violence, or even serions moral réservations or policy objections concerning the particular conflict. We need not and do not adopt the view that a cate-gorical, global “interest” in stifling individualistic claims to noncompliance, in respect of duties generally exacted, is the neutral and secular basis of § 6 (j). As is shown by the long history of the very provision under discussion, it is not inconsistent with orderly démocratie government for individuals to be exempted by law, on account of spécial characteristics, from general duties of a burdensome nature. But real dangers—dangers of the kind feared by the Commission—might arise if an exemption were made available that in its nature could not be administered fairly and uniformly over the run of relevant fact situations. Should it be thought that those who go to war are chosen unfairly or capriciously, then a mood of bitterness and cynicism might corrode the spirit of public service and the values of willing performance of a citizen’s duties that are the very heart of free government. In short, the considérations men-tioned in the previous paragraph, when seen in conjunc-tion with the central problem of fairness, are without question properly cognizable by Congress. In light of these valid concerns, we conclude that it is supportable for Congress to hâve decided that the objector to ail war—to ail killing in war—has a claim that is distinct enough and intense enough to justify spécial status, while the objector to a particular war does not. Of course, we do not suggest that Congress would hâve acted irrationally or unreasonably had it decided to exempt those who object to particular wars. Our analysis of the policies of § 6 (j ) is undertaken in order to détermine the existence vel non of a neutral, secular justification for the lines Congress has drawn. We find that justifying reasons exist and therefore hold that the Establishment Clause is not violated. GILLETTE v. UNITED STATES 461 437 Opinion of the Court III Petitioners’ remaining contention is that Congress interfères with the free exercise of religion by conscripting persons who oppose a particular war on grounds of conscience and religion. Strictly viewed, this complaint does not implicate problems of comparative treatment of different sorts of objectors, but rather may be examined in some isolation from the circumstance that Congress has chosen to exempt those who conscientiously object to ail war.23 And our holding that § 6 (j ) comports with the Establishment Clause does not automatically settle the présent issue. For despite a general harmony of purpose between the two religious clauses of the First Amendment, the Free Exercise Clause no doubt has a reach of its own. Abington School District v. Schempp, 374 U. S., at 222-223. Nonetheless, our analysis of § 6 ( j ) for Establishment Clause purposes has revealed governmental interests of a kind and weight sufficient to justify under the Free Exercise Clause the impact of the conscription laws on those who object to particular wars. Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition re-lieves an objector from any colliding duty fixed by a démocratie government. See Cantwell v. Connecticut, 23 We are not faced with the question whether the Free Exercise Clause itself would require exemption of any class other than objectors to particular wars. A free exercise claim on behalf of such objectors collides with the distinct governmental interests already discussed, and, at any rate, no other claim is presented. We note that the Court has previously suggested that relief for conscientious objectors is not mandated by the Constitution. See Hamilton v. Regents, 293 U. S. 245, 264 (1934); United States v. Macintosh, 283 U. S., at 623-624; cf. In re Summers, 325 U. S. 561, 572-573 (1945). 415-649 0 - 72 - 35 462 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. 310 U. S. 296, 303-304 (1940) ; Jacobson n. Massachusetts, 197 U. S. 11, 29 (1905); cf. Cleveland v. United States, 329 U. S. 14, 20 (1946). To be sure, the Free Exercise Clause bars “governmental régulation of religious beliefs as such,” Sherbert n. Verner, 374 U. S. 398, 402 (1963), or interférence with the dissémination of religious ideas. See Fowler v. Rhode Island, 345 U. S. 67 (1953) ; Follett v. McCormick, 321 U. S. 573 (1944); Murdock v. Pennsylvania, 319 U. S. 105 (1943). It prohibits misuse of secular governmental programs “to impede the observance of one or ail religions or . . . to discriminate invidiously between religions, . . . even though the burden may be characterized as being only indirect.” Braun-feld v. Brown, 366 U. S., at 607 (opinion of Warren, C. J.). And even as to neutral prohibitory or regula-tory laws having secular aims, the Free Exercise Clause may condemn certain applications clashing with impératives of religion and conscience, when the burden on First Amendment values is not justifiable in terms of the Government’s valid aims. See id.; Sherbert v. Verner, supra. See generally Clark, Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327 (1969). However, the impact of conscription on objectors to particular wars is far from unjustified. The conscription laws, applied to such persons as to others, are not de-signed to interfère with any religious ritual or practice, and do not work a penalty against any theological position. The incidental burdens felt by persons in petitioners’ position are strictly justified by substantial governmental interests that relate directly to the very impacts questioned. And more broadly, of course, there is the Government’s interest in procuring the manpower necessary for military purposes, pursuant to the constitutional grant of power to Congress to raise and support armies. Art. I, § 8. GILLETTE v. UNITED STATES 463 437 Douglas, J., dissenting IV Since petitioners’ statutory and constitutional claims to relief from military service are without merit, it follows that in Gillette’s case (No. 85) there was a basis in fact to support administrative déniai of exemption, and that in Negre’s case (No. 325) there was a basis in fact to support the Army’s déniai of a discharge. Accordingly, the judgments below are Affirmed Mr. Justice Black concurs in the Court’s judgment and in Part I of the opinion of the Court. Mr. Justice Douglas, dissenting in No. 85.* Gillette’s objection is to combat service in the Vietnam war, not to wars in general, and the basis of his objection is his conscience. His objection does not put him into the statutory exemption which extends to one “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” 1 He stated his views as follows: “I object to any assignment in the United States Armed Forces while this unnecessary and unjust war is being waged, on the grounds of religious belief specifically ‘Humanism.’ This essentially means respect and love for man, faith in his inhérent good-ness and perfectability, and confidence in his capa-bility to improve some of the pains of the human condition.” This position is substantially the same as that of Sisson in United States v. Sisson, 297 F. Supp. 902, ap- *[For dissenting opinion of Mr. Justice Douglas in No. 325, Negre v. Larsen, see post, p. 470.] 1 Section 6 (j), Military Sélective Service Act of 1967, 50 U. S. C. App. §456 (j) (1964 ed., Supp. V). 464 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. peal dismissed, 399 U. S. 267, where the District Court summarized the draftee’s position as follows: “Sisson’s table of ultimate values is moral and ethical. It reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formai religion. It is just as much a residue of culture, early training, and beliefs shared by com-panions and family. What another dérivés from the discipline of a church, Sisson dérivés from the discipline of conscience.” 297 F. Supp., at 905. There is no doubt that the views of Gillette are sincère, genuine, and profound. The District Court in the présent case faced squarely the issue presented in Sisson and being unable to distinguish the case on the facts, refused to follow Sisson. The question, Can a conscientious objector, whether his objection be rooted in “religion” or in moral values, be required to kill? has never been answered by the Court.2 Hamilton v. Regents, 293 U. S. 245, did no more than hold that the Fourteenth Amendment did not require a State to make its university available to one who would not take military training. United States v. Macintosh, 283 U. S. 605, denied naturalization to a person who “would not promise in advance to bear arms in defense of the United States unless he believed the war to be morally justified.” Id., at 613. The question of compelling a man to kill against his conscience was not squarely involved. Most of the talk in the majority opinion concerned “serving in the armed forces of the 2 See T. Powell, Conscience and the Constitution, in Democracy and National Unity (W. Hutchison ed. 1941). It is probably a universal truth that “the one thing which authority, whether political, social, religious or économie, tends in-stinctively to fear is the insistence of conscience.” Mehta, The Conscience of a Nation or Studies in Gandhism p. ii (Calcutta, 1933). GILLETTE v. UNITED STATES 465 437 Douglas, J., dissenting Nation in time of war.” Id., at 623. Such service can, of course, take place in noncombatant rôles. The ruling was that such service is “dépendent upon the will of Congress and not upon the scruples of the individual, except as Congress provides.” Ibid. The dicta of the Court in the Macintosh case squint towards the déniai of Gillette’s claim, though as I hâve said, the issue was not squarely presented. Yet if dicta are to be our guide, my choice is the dicta of Chief Justice Hughes who, dissenting in Macintosh, spoke as well for Justices Holmes, Brandeis, and Stone: “Nor is there ground, in my opinion, for the exclusion of Professor Macintosh because his conscientious scruples hâve particular reference to wars believed to be unjust. There is nothing new in such an attitude. Among the most eminent states-men here and abroad hâve been those who con-demned the action of their country in entering into wars they thought to be unjustified. Agreements for the renunciation of war présupposé a prépondérant public sentiment against wars of aggression. If, while recognizing the power of Congress, the mere holding of religious or conscientious scruples against ail wars should not disqualify a citizen from holding office in this country, or an applicant otherwise qualified from being admitted to citizenship, there would seem to be no reason why a réservation of religious or conscientious objection to participation in wars believed to be unjust should constitute such a disqualification.” Id., at 635. I think the Hughes view is the constitutional view. It is true that the First Amendment speaks of the free exercise of religion, not of the free exercise of conscience or belief. Yet conscience and belief are the main ingrédients of First Amendment rights. They are the 466 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. bedrock of free speech as well as religion. The implied First Amendment right of “conscience” is certainly as high as the “right of association” which we recognized in Shelton v. Tucker, 364 U. S. 479, and NAACP v. Alabama, 357 U. S. 449. Some indeed hâve thought it higher.3 Conscience is often the écho of religions faith. But, as this case illustrâtes, it may also be the product of travail, méditation, or sudden révélation related to a moral compréhension of the dimensions of a problem, not to a religion in the ordinary sense. Tolstoy4 wrote of a man, one Van der Veer, “who, as he himself says, is not a Christian, and who refuses military service, not from religious motives, but from motives of the simplest kind, motives intelligible and common to ail men, of whatever religion or nation, whether Catholic, Mohammedan, Buddhist, Confucian, whether Spaniards or Japanese. “Van der Veer refuses military service, not because he follows the commandment. ‘Thon shalt do no murder,’ not because he is a Christian, but because he holds murder to be opposed to human nature.” 3 See M. Konvitz, Religious Liberty and Conscience 106 (1968); Redlich & Feinberg, Individual Conscience and the Sélective Service Objector: The Right Not to Kill, 44 N. Y. U. L. Rev. 875, 891 (1969) : “Free expression and the right of personal conscientious belief are closely intertwined. At the core of the first amendment’s protection of individual expression, is the récognition that such expression represents the oral or written manifestation of conscience. The performance of certain acts, under certain circumstances, involves such a crisis of conscience as to invoke the protection which the first amendment provides for similar manifestations of conscience when expressed in verbal or written expressions of thought. The most awesome act which any society can demand of a citizen’s conscience is the taking of a human life.” 4 L. Tolstoy, Writings On Civil Disobedience and Non-Violence 12 (1967). GILLETTE v. UNITED STATES 467 437 Douglas, J., dissenting Tolstoy5 goes on to say : “Van der Veer says he is not a Christian. But the motives of his refusai and action are Christian. He refuses because he does not wish to kill a brother man ; he does not obey, because the commands of his conscience are more binding upon him than the commands of men. . . . Thereby he shows that Chris-tianity is not a sect or creed which some may profess and others reject; but that it is naught else than a life’s following of that light of reason which illumines ail men. . . . “Those men who now behave rightly and reasonably do so, not because they follow prescriptions of Christ, but because that line of action which was pointed out eighteen hundred years ago has now become identified with human conscience.” The “sphere of intellect and spirit,” as we described the domain of the First Amendment in West Virginia Board of Education v. Barnette, 319 U. S. 624, 642, was recognized in United States v. Seeger, 380 U. S. 163, where we gave a broad construction to the statutory exemption of those who by their religious training or belief are con-scientiously opposed to participation in war in any form. We said: “A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by 5 Id., at 15-16. And see Clark, Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327, 337 (1969) : "The argument is not merely that avoiding compulsion of a man’s conscience produces the greatest good for the greatest number, but that such compulsion is itself unfair to the individual concerned. The moral condemnation implicit in the threat of criminal sanctions is likely to be very painful to one motivated by belief. Furthermore, the cost to a principled individual of failing to do his moral duty is generally severe, in terms of supernatural sanction or the loss of moral self-respect.” 468 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. the God of those admittedly qualifying for the exemption cornes within the statutory définition.” Id., at 176.6 Seeger does not answer the présent question as Gillette is not “opposed to participation in war in any form.” But the constitutional infirmity in the présent Act seems obvious once “conscience” is the guide. As Chief Justice Hughes said in the Macintosh case: “But, in the forum of conscience, duty to a moral power higher than the State has always been main-tained. The réservation of that suprême obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.” 283 U. S., at 633-634. The law as written is a species of those which show an invidious discrimination in favor of religious persons and against others with like scruples. Mr. Justice Black once said: “The First Amendment has lost much if the religious follower and the atheist7 are no longer to be 6 In Welsh v. United States, 398 U. S. 333, four Justices elaborated on Seeger, stating: "The Court [in Seeger] made it clear that these sincere and mean-ingful beliefs that prompt the registrant’s objection to ail wars need not be confined in either source or content to traditional or parochial concepts of religion. . . . What is necessary under Seeger for a registrant’s conscientious objection to ail war to be ‘religious’ within the meaning of §6 (j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions.” Id., at 339-340. 7 Article VI of the Constitution provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Torcaso v. Watkins, 367 U. S. 488, upheld the right of a nonbeliever to hold public office. GILLETTE v. UNITED STATES 469 437 Douglas, J., dissenting judicially regarded as entitled to equal justice under law.” Zorach v. Clauson, 343 U. S. 306, 320 (dissenting). We said as much in our recent decision in Epperson n. Arkansas, 393 U. S. 97, where we struck down as unconstitutional a state law prohibiting the teaching of the doctrine of évolution in the public schools: “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Id., at 103-104. While there is no Equal Protection Clause in the Fifth Amendment, our decisions are clear that invidious classifications violate due process. Bolling v. Sharpe, 347 U. S. 497, 500, held that ségrégation by race in the public schools was an invidious discrimination, and Schneider v. Rusk, 377 U. S. 163, 168-169, reached the same resuit based on penalties imposed on naturalized, not native-born, citizens. A classification of “conscience” based on a “religion” and a “conscience” based on more gen-eralized, philosophical grounds is equally invidious by reason of our First Amendment standards. I had assumed that the welfare of the single human soûl was the ultimate test of the vitality of the First Amendment. This is an appropriate occasion to give content to our dictum in Board of Education v. Barnette, supra, at 642: “[F]reedom to differ is not limited to things that do not matter much. . . . The test of its sub 470 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. stance is the right to differ as to things that touch the heart of the existing order.” I would reverse this judgment. Mr. Justice Douglas, dissenting in No. 325, Negre v. Larsen. I approach the facts of this case with some diffidence, as they in volve doctrines of the Catholic Church in which I was not raised. But we hâve on one of petitioner’s briefs an authoritative lay Catholic scholar, Dr. John T. Noonan, Jr., and from that brief I deduce the following: Under the doctrines of the Catholic Church a person has a moral duty to take part in wars declared by his government so long as they comply with the tests of his church for just wars.1 Conversely, a Catholic has a moral duty not to participate in unjust wars.2 1 The theological basis for this was explained by Pope John XXIII in Part II of Pacem in Terris ^46 (Paulist Press 1963): “Human society can be neither well-ordered nor prospérons unless it has some people invested with legitimate authority to preserve its institutions .... These however dérivé their authority from God, as St. Paul teaches in the words, There exists no authority except jrom God. These words of St. Paul are explained thus by St. John Chrysos-tom: . . . What I say is, that it is the divine wisdom and not mere chance, that has ordained that there should be government, that some should command and others obey.” T 50 adds: “When, in fact, men obey their rulers, it is not at ail as men that they obey them, but through their obedience it is God . . . since He has decreed that men’s dealings with one another should be regulated by an order which He Himself has established.” 2 “Since the right to command is required by the moral order and has its source in God, it follows that, if civil authorities legislate for or allow anything that is contrary to that order and therefore con-trary to the will of God, neither the laws made nor the authorizations granted can be binding on the consciences of the citizens, since we must obey God rather than men.” Id., at 51. GILLETTE v. UNITED STATES 471 437 Douglas, J., dissenting The Fifth Commandment, “Thou shall not kill,” provides a basis for the distinction between just and unjust wars. In the 16th century Francisco Victoria, Domin-ican master of the University of Salamanca and pio-neer in international law, elaborated on the distinction. “If a subject is convinced of the injustice of a war, he ought not to serve in it, even on the command of his prince. This is clear, for no one can authorize the kill-ing of an innocent person.” He realized not ail men had the information of the prince and his counsellors on the causes of a war, but where “the proofs and tokens of the injustice of the war may be such that ignorance would be no excuse even to the subjects” who are not normally informed, that ignorance will not be an excuse if they participate.3 Well over 400 years later, today, the Baltimore Catechism makes an exception to the Fifth Commandment for a “soldier fighting a just war.” 4 No one can tell a Catholic that this or that war is either just or unjust. This is a personal decision that an in-dividual must make on the basis of his own conscience after studying the facts.5 3 De Indis Relectio Posterior, sive De lure Belli Hispanorum in Barbares, translated in Classics of International Law 173-174 (E. Nys ed. 1917). 4 P. 205 (official rev. ed. 1949). 5 Pope Paul VI in § 16 of the Pastoral Constitution on the Church in the Modem World States: “Deep within his conscience man discovers a law which he has not laid upon himself but which he must obey. Its voice, ever calling him to love and to do what is good and avoid evil, tells him inwardly at the right moment to do this or to shun that. For man has in his heart a law inscribed by God. His dignity lies in observing this law, and by it he will be judged.” A. Fagothey, Right and Reason: Ethics in Theory and Practice 38 (4th ed. 1967) States: “Hence a certain conscience must be obeyed, not only when it is correct, but even when it is invincibly erroneous 472 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. Like the distinction between just and unjust wars, the duty to obey conscience is not a new doctrine in the Catholic Church. When told to stop preaching by the Sanhédrin, to which they were subordinate by law, “Peter and the apostles answered and said, ‘We must obey God rather than men.’ ” 6 That duty has not changed. Pope Paul VI has expressed it as follows: “On his part, man perceives and acknowledges the impératives of the divine law through the médiation of conscience. In ail his activity a man is bound to follow his conscience, in order that he may corne to God, the end and purpose of life.” 7 While the fact that the ultimate détermination of whether a war is unjust rests on individual conscience, the Church has provided guides. Francisco Victoria re-ferred to “killing of an innocent person.” World War II had its impact on the doctrine. Writing shortly after the war Cardinal Ottaviani stated: “[M]odern wars can [unrealized error]. Conscience is the only guide a man has for the performance of concrète actions here and now. But an invincibly erroneous conscience cannot be distinguished from a correct conscience. Therefore if one were not obliged to follow a certain but invincibly erroneous conscience, we should be forced to the absurd conclusions that one would not be obliged to follow a certain and correct conscience.” On this matter § 16 of the Pastoral Constitution adds: “Yet it often happens that conscience goes astray through ignorance which it is unable to avoid, but under such cir-cumstances it does not lose its dignity. This cannot be said of the man who takes little trouble to find out what is true and good.” e Acts 5:29 (Standard ed. 1900). 7 Déclaration on Religious Freedom 1:3 in Documents of Vatican Council II, p. 369 (Newman Press 1966). See also “Human Life in Our Day” issued by the National Conférence of Catholic Bishops (Nov. 15, 1968) : “Whether or not such modifications in our laws are in fact made, we continue to hope that, in the all-important issue of war and peace, ail men will follow their consciences. We can do no better than to recall, as did the Vatican Council, ‘the permanent binding force of universal natural law and its ail embracing principles,’ to which ‘man’s conscience itself gives ever more emphatic voice.’ ” GILLETTE v. UNITED STATES 473 437 Douglas, J., dissenting ne ver fulfil those conditions which (as we stated earlier on in this essay) govern—theoretically—a just and lawful war. Moreover, no conceivable cause could ever be sufficient justification for the evils, the slaughter, the destruction, the moral and religious upheavals which war today entails. In practice, then, a déclaration of war will never be justifiable.” 8 The full impact of the hor-rors of modern war were emphasized in the Pastoral Constitution announced by Vatican II: “The development of armaments by modern science has immeasurably magnified the horrors and wickedness of war. Warfare conducted with these weapons can inflict immense and indiscriminate havoc which goes far beyond the bounds of legitimate defense. Indeed, if the kind of weapons now stocked in the arsenals of the great powers were to be em-ployed to the fullest, the resuit would be the almost complété reciprocal slaughter of one side by the other, not to speak of the widespread dévastation that would follow in the world and the deadly after-effects resulting from the use of such arms. “Ail these factors force us to undertake a com-pletely fresh reappraisal of war. . . “[I]t is one thing to wage a war of self-defense ; it is quite another to seek to impose domination on another nation. . . The Pastoral Constitution announced that “[e]very act of war directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants is a crime against God and man which merits firm and unequivocal condemnation.” 9 Louis Negre is a devout Catholic. In 1951 when he was four, his family immigrated to this country from 8 The Future of Offensive War, 30 Blackfriars 415, 419 (1949). 9 Pastoral Constitution VT 79, 80. 474 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. France.10 He attended Catholic schools in Bakersfield, California, until graduation from high school. Then he attended Bakersfield Junior College for two years. Following that, he was inducted into the Army. At the time of his induction he had his own convictions about the Vietnam war and the Army’s goals in the war. He wanted, however, to be sure of his convictions. “I agreed to myself that before making any decision or taking any type of stand on the issue, I would permit myself to see and understand the Army’s expla-nation of its reasons for violence in Vietnam. For, without getting an insight on the subject, it would be unfair for me to say anything, without really knowing the answer.”11 On completion of his advanced infantry training, “I knew that if I would permit myself to go to Vietnam I would be violating my own concepts of natural law and would be going against ail that I had been taught in my religious training.” Negre applied for a discharge as a conscientious objector. His application was denied. He then refused to comply with an order to proceed for shipment to Vietnam. A general court-martial followed, but he was acquitted. After that he filed this application for discharge as a conscientious objector. 10 Petitioner suggests that one of the reasons his parents left France was their opposition to France’s participation in the Indo-China war. 11 See n. 5, supra. Fagothey, supra, n. 5, at 37 states: “What degree of certitude is required? It is sufficient that the conscience be prudentially certain. Prudential certitude is not absolute but relative. It excludes ail prudent fear that the opposite may be true, but it does not rule out imprudent fears based on bare possibilities. The reasons are strong enough to satisfy a normally prudent man in an important matter, so that he feels safe in practice though there is a theoretical chance of his being wrong. He has taken every reasonable précaution, but cannot guarantee against rare contingen-cies and freaks of nature.” GILLETTE v. UNITED STATES 475 437 Douglas, J., dissenting Negre is opposed under his religious training and beliefs to participation in any form in the war in Vietnam. His sincerity is not questioned. His application for a discharge, however, was denied because his religious training and beliefs led him to oppose only a particular war 12 which according to his conscience was unjust. For the reasons I hâve stated in my dissent in the Gillette case decided this day, I would reverse the judgment. 12 “For those middle-aged people who find themselves baffled by the current widespread résistance to the draft, a Stanford University student has provided a useful parallel. “Addressing a hearing of the Senate Armed Service Commit-tee . . . , Peter Knutson said that Tf, during the course of the Second World War, America had entered on the side of Hitler’s Germany, would you hâve allowed yourself to be drafted? Would you hâve blindly said my country right or wrong?’ “That is about as well as the anti-draft cause has ever been stated. . . . “It may seem far-fetched to suppose that America ever would hâve fought on the side of Hitler, but that too is beside the point. If today’s World War II vétéran will try to imagine what he might hâve done had he been drafted under those circumstances, he will be able to understand some part of the dilemma that the Vietnam war has imposed on this génération of draftees. It has been a real dilemma breeding powerful frustrations, and its residues will long outlast the war.”—L. H.—Lewiston (Ida.) Tribune. 476 OCTOBER TERM, 1970 Syllabus 401 U. S. ASKEW, GOVERNOR OF FLORIDA, et al. v. HARGRAVE et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA No. 573. Argued February 23-24, 1971—Decided March 8, 1971 Appellees brought this suit in fédéral court challenging Florida’s Millage Rollback Law as violative of the Equal Protection Clause of the Fourteenth Amendment on the ground that it had an in-vidiously discriminatory effect in its distribution of taxing authority for educational purposes by a standard related solely to a county’s wealth. Appellants contended that the statute was only part of a total plan more nearly to equalize schoolchildren’s educational opportunities on a statewide basis. A three-judge District Court granted appellees’ motion for summary judgment on the basis of the pleadings and appellees’ affidavit, having rejected appellants’ argument that the District Court should abstain from considering the case because of an intervening state court proceeding attacking the law on state constitutional grounds. Held: 1. The District Court mistakenly relied upon Monroe v. Pape, 365 U. S. 167, and McNeese v. Board oj Education, 373 U. S. 668, in refusing to abstain from deciding the case on the merits pending résolution by the state courts of state constitutional claims, the sustainment of which would obviate the need for determining the Fourteenth Amendment issue. Reetz v. Bozanich, 397 U. S. 82, is an example of the line of decisions that should inform the discrétion of the District Court in determining whether to abstain. 2. Since the manner in which Florida’s overall program opérâtes may be critical in resolving the equal protection claim, that claim should be decided not by summary judgment but after a full hearing. 313 F. Supp. 944, vacated and remanded. Charles E. Miner, Jr., argued the cause for appellants. With him on the briefs were Rivers Bujord, Jr., and Stephen Marc Slepin. Hershel Shanks argued the cause for appellees. With him on the brief were Allan I. Mendelsohn, Robert M. Perce, Jr., Richard H. Frank, and David Rubin. ASKEW v. HARGRAVE 477 476 Per Curiam William H. Adams III filed a brief for the Florida Education Research Foundation as amicus curiae urging reversai. Per Curiam. In 1968, Florida enacted a new law for the financing of public éducation through state appropriations and local ad valorem taxes assessed by each school district. A section of the new law, Fia. Stat. Ann. § 236.251 (Supp. 1970), known as the “Millage Rollback Law,” pro-vided that, to be eligible to receive state moneys, a local school district must limit ad valorem taxes for school purposes to not more than 10 mills of assessed valuation, with certain exceptions. Appellees filed this class action in the District Court for the Middle District of Florida alleging that the Millage Rollback Law efïected an invidious discrimination, in violation of the Equal Protection Clause, against school children of property-poor counties in that 10 mills of ad valorem tax in school districts in such counties would produce less dollars per child for educational purposes than would 10 mills of ad valorem tax in other counties. A three-judge District Court entered a summary judgment in appellees’ favor upon a déclaration that the Millage Rollback Law was unconstitutional, and enjoined the appellants from with-holding state funds from any school district by virtue of the provisions of that Act. Hargrave v. Kirk, 313 F. Supp. 944 (1970). We noted probable jurisdiction. 400 U. S. 900 (1970). We vacate and remand. I Subséquent to the filing of this suit, School Board of Broward County v. Christian, No. 69-932, was filed in the Circuit Court of the Second Judicial Circuit of Leon County, Florida. That action attacks the Millage Rollback Law primarily on state law grounds, as violative of 415-649 0 - 72 - 36 478 OCTOBER TERM, 1970 Per Curiam 401 U. S. provisions of the Florida Constitution. The District Court, however, rejected appellants’ argument that the court “should abstain from considering the case in defer-ence to [the] state court proceeding,” 313 F. Supp., at 946-947, holding that under Monroe v. Pape, 365 U. S. 167 (1961), and McNeese v. Board oj Education, 373 U. S. 668 (1963), “[t]he fact that a state remedy is available is not a valid basis for fédéral court abstention.” 313 F. Supp., at 947. The reliance upon Monroe n. Pape and McNeese was misplaced. Monroe v. Pape is not in point, for there “the state remedy, though adéquate in theory, was not available in practice.” 365 U. S., at 174. McNeese held that “assertion of a fédéral claim in a fédéral court [need not] await an attempt to vindicate the same claim in a state court.” 373 U. S., at 672 (emphasis added). See also Wisconsin v. Cons tan tineau, 400 U. S. 433 (1971). Our understanding from the colloquy on oral argument with counsel for the parties is that the Christian case asserts, not the “same claim,” that is, the fédéral claim of alleged déniai of the fédéral right of equal protection, but primarily state law daims under the Florida Constitution, which daims, if sustained, will obvi-ate the necessity of determining the Fourteenth Amendment question. In such case, the line of decisions of which Reetz v. Bozanich, 397 U. S. 82 (1970), is a recent example, states the principles that should inform the exercise of the District Court’s discrétion as to whether to abstain. II Since the case must be remanded, we add another comment. The appellees’ motion for summary judgment was considered on the pleadings and an affidavit which essentially merely verified the allégations of the amended complaint. Our examination of the pleadings and the affidavit persuades us that they are inadéquate as a basis for deciding the equal protection claim. They do ASKEW v. HARGRAVE 479 476 Per Curiam not sufficiently présent the facts related to appellants’ argument that the Millage Rollback Law was only one aspect of a comprehensive legislative program for re-organizing educational financing throughout the State to more nearly equalize educational opportunities for ail the school children of the State. Appellants contend that this program enacted a formula calling for “a massive infusion of state money into the several school districts,” which more than made up the loss suffered by a school district under the limitation of 10 mills in the assessment of ad valorem taxes: “The net effect of the 1968 educational financing enactments was not only to make up for the loss of funds suffered by the counties required to reduce local millage but to greatly increase the moneys available to the counties on a per pupil basis.” Appellants’ Reply Brief 4. Since the manner in which the program opérâtes may be critical in the decision of the equal protection claim, that claim should not be decided without fully developing the factual record at a hearing. The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Black concurs in the judgment and Part II of the opinion. 480 OCTOBER TERM, 1970 Per Curiam 401 U. S. GROVE PRESS, INC., et al. v. MARYLAND STATE BOARD OF CENSORS APPEAL FROM THE COURT OF APPEALS OF MARYLAND No. 63. Argued November 10, 1970—Decided March 8, 1971 255 Md. 297, 258 A. 2d 240, affirmed by an equally divided Court. Edward de Grazia argued the cause for appellants. With him on the brief were Nathan Lewin, Arnold M. Weiner, and Alan M. Dershowitz. Francis B. Burch, Attorney General of Maryland, argued the cause for appellee. With him on the brief was Thomas N. Biddison, Jr., Assistant Attorney General. Briefs of amici curiae urging reversai were filed by Félix J. Bilgrey for the International Film Importers & Distributors of America, Inc.; by Louis Nizer for the Motion Picture Association of America, Inc.; by Leon Friedman and Lester Pollack for the National Association of Theater Owners, Inc., and by Stanley Fleishman and Sam Rosenwein for the Adult Film Association of America, Inc. Francis J. Rudolph filed a brief for Morality in Media, Inc., as amicus curiae, urging affirmance. Per Curiam. The judgment is affirmed by an equally divided Court. Mr. Justice Douglas took no part in the considération or decision of this case. DURHAM v. UNITED STATES 481 Per Curiam DURHAM v. UNITED STATES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 5928; Decided March 8, 1971 Not until several months after petitioner had seasonably filed a pétition for rehearing from the Court of Appeals’ afiirmance of his conviction and he had been advised that he would be notified as soon as there was a ruling on that pétition, was he informed (on further inquiry) of the court’s déniai thereof. Within three weeks of receiving that advice, he filed a pétition for certiorari, but thereafter he died. Held: 1. On the facts of this case, waiver of Rule 22 (2)’s time requirement for filing a pétition for certiorari is proper. 2. Death pending direct review, whether by certiorari (as in this case) or appeal, of a fédéral criminal conviction abates ail previous prosecutive proceedings. Certiorari granted, 419 F. 2d 392; vacated and remanded to the District Court with directions to dismiss the indictment. Per Curiam. Petitioner was convicted of having knowingly possessed a counterfeit $20 bill. After the Court of Appeals for the Ninth Circuit affirmed his conviction he filed this pétition for a writ of certiorari. We are now advised that petitioner has died. It is true that the pétition for certiorari is out of time under our Rule 22 (2), though timeliness under our rules, of course, présents no jurisdictional question. Subséquent to the afiirmance of his conviction below, petitioner filed a timely pétition for rehearing. Upon his inquiry to the Court of Appeals he was informed that he would be notified as to the disposition of his pétition as soon as the court acted. When several months passed without any word, petitioner again wrote to that court. In reply, on September 8, 1970, he received a copy of the 482 OCTOBER TERM, 1970 Per Curiam 401 U. S. order dated March 5, 1970, denying his pétition for re-hearing. Within three weeks from receipt of the déniai from the Court of Appeals his pétition for a writ of certiorari was docketed in this Court. On these facts waiver of our Rule 22 is proper. Our cases where a petitioner dies while a review is pending are not free of ambiguity. In a recent manda-mus action the petitioner died and we granted certiorari, vacated the judgment below, and ordered the complaint dismissed. Fletcher v. Bryan, 361 U. S. 126. In a state habeas corpus case we granted certiorari and vacated the judgment so that the state court could takè whatever action it deemed proper. Garvin v. Cochran, 371 U. S. 27. Our practice in cases on direct review from state convictions has been to dismiss the proceedings. See Gersewitz v. New York, 326 U. S. 687. In an earlier case the Court announced the appeal had abated, Johnson v. Tennessee, 214 U. S. 485, while in another the Court stated the cause had abated. List v. Pennsylvania, 131 U. S. 396. In fédéral criminal cases we developed the practice of dismissing the writ of certiorari and remanding the cause to the court below. Singer n. United States, 323 U. S. 338, 346; American Tobacco Co. v. United States, 328 U. S. 781, 815 n. 11; United States v. Johnson, 319 U. S. 503, 520 n. 1. We hâve cited United States v. Pomeroy, 152 F. 279, rev’d sub nom. United States v. New York Central & H. R. R. Co., 164 F. 324, and United States v. Dunne, 173 F. 254, in suggesting such disposition on re-mand “as law and justice require,” but beyond this we hâve basically allowed the scope of the abatement to be determined by the lower fédéral courts. The status of abatement caused by death on direct review has recently been discussed by the Court of Appeals for the Eighth Circuit in Crooker v. United States, 325 F. 2d 318. In reviewing the cases that court concluded DURHAM v. UNITED STATES 483 481 Blackmun, J., dissenting that the lower fédéral courts were unanimous on the rule to be applied: death pending direct review of a criminal conviction abates not only the appeal but also ail pro-ceedings had in the prosecution from its inception.* Id., at 320. As stated in List v. Pennsylvania, supra, on death of the convicted petitioner the “cause has abated.” The unanimity of the lower fédéral courts which hâve worked with this problem over the years from Pomeroy to Crooker is impressive. We believe they hâve adopted the correct rule. Accordingly, the motion for leave to proceed in forma pauperis and the pétition for a writ of certiorari are granted. The judgment below is vacated and the case is remanded to the District Court with directions to dismiss the indictment. It is so ordered. Mr. Justice Marshall, whom The Chief Justice and Mr. Justice Stewart join, believes that the case should be disposed of as follows: The petitioner having died while his pétition for certiorari was pending before this Court, we dismiss the pétition as moot and direct the Court of Appeals to note this action on its records. Mr. Justice Blackmun, dissenting. This case is here on Durham’s pétition for certiorari after his appeal to the United States Court of Appeals *It is suggested that Crooker is different because it involved a right of appeal, while here we deal with a pétition for a writ of certiorari. It is, of course, true that appeals are a matter of right while decisions on certiorari pétitions are wholly discretionary. Congress, however, has given a right to pétition for certiorari and petitioner exercised that right. No decision had been made on that pétition prior to his death. Since death will prevent any review on the merits, whether the situation is an appeal or certiorari, the distinction between the two would not seem to be important for présent purposes. 484 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U.S. for the Ninth Circuit resulted in the affirmance of his conviction for a violation of 18 U. S. C. § 474. The Soliciter General now has suggested that the petitioner died on November 20, 1970, while his pétition was pending but prior to this Court’s taking any action upon it by way of grant or déniai. The pétition is untimely. The Ninth Circuit’s opinion was filed on November 12, 1969, and rehearing was de-nied by that court on March 5, 1970. A pétition for certiorari to review the judgment of the court of appeals in a criminal case is timely, under our Rule 22(2), only when it is filed here within 30 days after the entry of the judgment or within such additional time, not exceeding 30 days, as is allowed by a Justice of this Court for good cause shown. The pétition was filed only on Septem-ber 26, 1970, and thus is out of time by more than five months. Further, the situation is not one where the decedent possessed, and had exercised, a right of appeal to this Court, and then died while his appeal was pending. That contrasting and very different situation is the typical one that confronts the fédéral courts of appeals and with which the Eighth Circuit was concerned in Crooker v. United States, 325 F. 2d 318 (1963), cited in the Court’s per curiam opinion. I would merely dismiss the decedent’s pétition for certiorari, rather than direct the dismissal of the indictment. This disposition seems to me appropriately to reflect the rulings of American Tobacco Co. v. United States, 328 U. S. 781, 815 n. 11 (1946) ; Singer v. United States, 323 U. S. 338, 346 (1945); and United States v. Johnson, 319 U. S. 503, 520 n. 1 (1943). In contrast, the dismissal of the indictment wipes the slate entirely clean of a fédéral conviction which was unsuccessfully DURHAM v. UNITED STATES 485 481 Blackmun, J., dissenting appealed throughout the entire appeal process to which the petitioner was entitled as of right. If, by chance, the suggestion of death has some conséquence upon the survivor rights of a third party (a fact not apparent to this Court), the third party so affected is free to make his own timely suggestion of death to the court of appeals. 486 OCTOBER TERM, 1970 Per Curiam 401 U. S. UNITED MINE WORKERS OF AMERICA v. RAILING ET AL, DBA C & P COAL CO. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 1059. Decided March 22, 1971 Case remanded for further considération, in light of Zenith Radio Corp. v. Hazeltine Research, ante, p. 321, of questions involving accrual of causes of action under § 303 of the Labor Management Relations Act and § 4 of the Clayton Act. Certiorari granted; 429 F. 2d 780, vacated and remanded. Per Curiam. The pétition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the Court of Appeals for further considération in light of Zenith Radio Corp. n. Hazeltine Research, Inc., ante, p. 321. Both § 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, as amended, 29 U. S. C. § 187, and § 4 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 15, give a cause of action for injury to business or property. Whether suits under the two statutes are distinguishable for purposes of determining the time at which a cause of action accrues warrants further exploration by the Court of Appeals. Further attention should also be given to the question of why a § 303 cause of action has sufficiently accrued to bring suit as soon as the plaintiff suffers damage but has not sufficiently accrued to start the running of the statute of limitations on the damages already suffered and for which suit may be but is not brought. The Chief Justice and Mr. Justice Harlan would grant the pétition for a writ of certiorari and set the case for argument on the merits. SCHLANGER v. SEAMANS 487 Opinion of the Court SCHLANGER v. SEAMANS, SECRETARY OF THE AIR FORCE, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 5481. Argued February 22, 1971—Decided March 23, 1971 The District Court for the District of Arizona did not hâve jurisdiction to entertain a habeas corpus application by an Air Force enlisted man in Arizona on temporary duty orders, as no custodian, neither the commanding officer at Moody Air Force Base in Georgia nor anyone in the chain of command, was a résident of Arizona. Pp. 488-492. Affirmed. Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Brennan, White, Marshall, and Blackmun, JJ., joined. Harlan, J., concurred in the resuit. Stewart, J., dissented. Herbert P. Schlanger, petitioner, argued the cause and filed a brief pro se. Soliciter General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Gray, Morton Hollander, and Robert E. Kopp. Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversai. Mr. Justice Douglas delivered the opinion of the Court. The sole question in this case is whether the District Court for the District of Arizona had jurisdiction to entertain on the merits petitioner’s application for a writ of habeas corpus. He is an enlisted man who was ac-cepted in the Airman’s Education and Commissioning Program, an officer training project, and was assigned to 488 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Wright-Patterson Air Force Base (AFB), Ohio, “with duty at Arizona State University” for training. While studying in Arizona and before completion of the course, he was removed from the program, allegedly for engaging in civil rights activities on the campus. While he was seeking administrative relief through command channels, he was reassigned to Moody AFB, Georgia, to complété the remainder of his six-year re-enlistment in a noncommissioned status. After exhaust-ing those remedies he was given permissive temporary duty to attend Arizona State for study, this time by his superiors at Moody AFB under a different program called Operation Bootstrap, and at his own expense.1 Thereafter 2 he filed his application for habeas corpus in Arizona alleging that his enlistment contract had been breached and that he was being detained unlawfully. The District Court denied the application. The Court of Appeals affirmed on the basis of Jarrett v. Resor, 426 F. 2d 213. The case is here on a pétition for certiorari which we granted. 400 U. S. 865. The respondents to this suit are the Secretary of the Air Force, the Commander of Moody AFB, and the Commander of the AF ROTC program on the Arizona State campus. The last respondent was the only one of the 1 Headquarters at Moody AFB assigned petitioner to temporary duty at Arizona State University. By its terms, the order “per-mitted [petitioner] to proceed from Moody AFB, GA. to Arizona State University, Tempe, AZ, effective on or about 4 June 1969 for approximately 70 days for the purpose of attending the University under Operation Bootstrap and then return to Moody AFB, GA.” The travel authorized was to be “at no expense to the Government.” Petitioner attended Arizona State in the summer of 1969 and obtained his degree. 2 This action was started shortly after petitioner had obtained his degree at Arizona State and while he was still in Arizona. SCHLANGER v. SEAMANS 489 487 Opinion of the Court three présent in Arizona and he had no control over petitioner who concededly was not in his chain of command, since petitioner was not in the AF ROTC program, but in Operation Bootstrap. The commanding officer at Moody AFB in Georgia did hâve custody and control over petitioner; but he was neither a résident of the Arizona judicial district nor amenable to its process. It is true, of course, that the commanding officer at Moody AFB exerted control over petitioner in the sense that his arm was long and petitioner was effectively sub-ject to his orders and directions. There are cases which suggest that such control to establish custody may be adéquate for habeas corpus jurisdiction even though the control is exercised from a point located outside the State, as long as the petitioner is in the district or the State. Donigian v. Laird, 308 F. Supp. 449. For reasons to be stated, we do not reach that question. The procedure governing issuance of the writ is provided by statute. The fédéral courts may grant the writ “within their respective jurisdictions.” 28 U. S. C. § 2241 (a). While the Act speaks of “a prisoner” (28 U. S. C. § 2241 (c)), the term has been liberally construed to in-clude members of the armed services who hâve been unlawfully detained, restrained, or confined. Eagles v. Samuels, 329 U. S. 304, 312. The Act extends to those “in custody under or by color of the authority of the United States.” 28 U. S. C. § 2241 (c)(l). The question in the instant case is whether any custodian, or one in the chain of command, as well as the person detained, must be in the territorial jurisdiction of the District Court. In Ahrens v. Clark, 335 U. S. 188, we held that it was not sufficient if the custodian alone be found in the jurisdiction where the persons detained were outside the juris- 490 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. diction 3 and that jurisdiction over the respondent was territorial.4 The dissent in that case thought that the critical element was not where the applicant was confined but where the custodian was located; that if the custo-dian were in the territorial jurisdiction of the District Court, then appropriate relief could be effected. Whichever view is taken of the problem in Ahrens n. Clark, the case is of little help here. For while petitioner is within the territorial jurisdiction of the District Court, the custodian—the Commander of Moody AFB— 3 Shortly thereafter Congress provided that a prisoner, no matter where held, could by motion invoke the jurisdiction of the sentencing court and be released on a showing that the sentence was unlawful. 28 U. S. C. § 2255. See United States v. Hayman, 342 U. S. 205, 220; Kaufman n. United States, 394 U. S. 217. Later Congress made an exception to the jurisdictional require-ment noted in Ahrens by allowing a state prisoner to seek habeas corpus in the district where he was sentenced, as well as in the district where he is confined, provided both are within the same State. 28 U. S. C. § 2241 (d) (1964 ed., Supp. V). As respects that amendment the Court said in Nelson v. George, 399 U. S. 224, 228 n. 5: “The legislative history of the 1966 amendments to 28 U. S. C. §2241 (d) (1964 ed., Supp. V) suggests that Congress may hâve 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).” 4 Although by 28 U. S. C. § 1391 (e) (1964 ed., Supp. V), Congress has provided for nationwide service of process in a “civil action in which each défendant is an officer or employée of the United States,” the legislative history of that section is barren of any indication that Congress extended habeas corpus jurisdiction. That section was enacted to broaden the venue of civil actions which could previously hâve been brought only in the District of Columbia. See H. R. Rep. No. 536, 87th Cong., lst Sess., 1 ; S. Rep. No. 1992, 87th Cong., 2d Sess., 2. Though habeas corpus is technically “civil,” it is not auto-matically subject to ail the rules governing ordinary civil actions. See Harris v. Nelson, 394 U. S. 286. SCHLANGER v. SEAMANS 491 487 Opinion of the Court is not. In other words, even under the minority view in Ahrens v. Clark, the District Court in Arizona has no custodian within its reach against whom its writ can run. Hence, even if we assume that petitioner is “in custody” 5 in Arizona in the sense that he is subject to military orders and control which act as a restraint on his freedom of movement {Jones v. Cunningham, 371 U. S. 236, 240), the absence of his custodian is fatal to the jurisdiction of the Arizona District Court. Cf. Rudick v. Laird, 412 F. 2d 16, 21. Had petitioner, at the time of the filing of the pétition, been under the command of the Air Force officer assigned 5 The concept of “custody” has been an evolving one as Judge Northrop shows in Donigian v. Laird, 308 F. Supp. 449, 451. And see Peyton v. Rowe, 391 U. S. 54, 64-66. In Jones n. Cunningham, 371 U. S. 236, 238, 240, 243, we said: “While limiting its availability to those 'in custody,’ the statute does not attempt to mark the boundaries of ‘custody’ nor in any way other than by use of that word attempt to limit the situations in which the writ can be used. . . . “History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally, which hâve been thought sufficient in the English-speaking world to support the issuance of habeas corpus. . . . “It [the Great Writ] is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose—the protection of individuals against érosion of their right to be free from wrongful restraints upon their liberty. While petitioner’s parole releases him from immédiate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute; if he can prove his allégations this custody is in violation of the Constitution, and it was therefore error for the Court of Appeals to dismiss his case as moot instead of per-mitting him to add the Parole Board members as respondents.” 492 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. as liaison officer at Arizona State to supervise the Education and Commissioning Program, we would hâve a different question. We do not reach it nor do we reach any aspects of the merits, viz., whether, if petitioner be right in contending that his contract of enlistment was breached, habeas corpus is the appropriate remedy. Affirmed. Mr. Justice Harlan concurs in the resuit. Mr. Justice Stewart dissents. OHIO v. WYANDOTTE CHEMICALS CORP. 493 Syllabus OHIO v. WYANDOTTE CHEMICALS CORP. et al. MOTION FOR LEAVE TO FILE BILL OF COMPLAINT No. 41, Orig. Argued January 18, 1971—Decided March 23, 1971 The State of Ohio filed a motion for leave to file a bill of complaint invoking the Court’s original jurisdiction against défendant com-panies, incorporated in Michigan, Delaware, and Canada, to abate an alleged nuisance resulting in the contamination and pollution of Lake Erie from the dumping of mercury into its tributaries. The Court déclinés to exercise its jurisdiction in this case since the issues are bottomed on local law that the Ohio courts are competent to consider; several national and international bodies are actively concerned with the pollution problems involved here; and the nature of the case requires the resolution of complex, novel, and technical factual questions that do not implicate important problems of fédéral law, which are the primary respon-sibility of the Court. Pp. 495-505. Denied. Harlan, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Brennan, Stewart, White, Marshall, and Blackmun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 505. Paul W. Brown, Attorney General of Ohio, argued the cause and filed a brief for plaintiff. John M. Moelmann argued the cause for défendant Wyandotte Chemicals Corp. With him on the briefs were Thomas J. Weithers and Milton F. Mallender. lan W. Outerbridge, by spécial leave of Court, argued the cause for défendant Dow Chemical Co. of Canada, Ltd. With him on the briefs was Richard W. Galiher. Harley J. McNeal argued the cause and filed briefs for défendant Dow Chemical Co. Peter L. Strauss argued the cause for the United States as amicus curiae. With him on the brief were Solicitor 415-649 0 - 72 - 37 494 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. General Griswold, Assistant Attorney General Kashiwa, and James R. Moore. Frank J. Kelley, Attorney General, Robert E. Deren-goski, Solicitor General, and M. Robert Carr, Assistant Attorney General, filed a brief for the State of Michigan as amicus curiae. Mr. Justice Harlan delivered the opinion of the Court. By motion for leave to file a bill of complaint, Ohio seeks to invoke this Court’s original jurisdiction. Because of the importance and unusual character of the issues tendered we set the matter for oral argument, in-viting the Solicitor General to participate and to file a brief on behalf of the United States, as amicus curiae. For reasons that follow we deny the motion for leave to file. The action, for abatement of a nuisance, is brought on behalf of the State and its citizens, and names as de-fendants Wyandotte Chemicals Corp. (Wyandotte), Dow Chemical Co. (Dow America), and Dow Chemical Company of Canada, Ltd. (Dow Canada). Wyandotte is incorporated in Michigan and maintains its principal office and place of business there. Dow America is incorporated in Delaware, has its principal office and place of business in Michigan, and owns ail the stock of Dow Canada. Dow Canada is incorporated, and does business, in Ontario. A majority of Dow Canada’s directors are residents of the United States. The complaint allégés that Dow Canada and Wyandotte hâve each dumped mercury into streams whose courses ultimately reach Lake Erie, thus contaminating and polluting that lake’s waters, végétation, fish, and wildlife, and that Dow America is jointly responsible for the acts of its foreign subsidiary. Assuming the State’s OHIO v. WYANDOTTE CHEMICALS CORP. 495 493 Opinion of the Court ability to prove these assertions, Ohio seeks a decree: (1) declaring the introduction of mercury into Lake Erie’s tributaries a public nuisance; (2) perpetually enjoining these défendants from introducing mercury into Lake Erie or its tributaries; (3) requiring défendants either to remove the mercury from Lake Erie or to pay the costs of its removal into a fund to be administered by Ohio and used only for that purpose; (4) directing défendants to pay Ohio monetary damages for the harm done to Lake Erie, its fish, wildlife, and végétation, and the citi-zens and inhabitants of Ohio. Original jurisdiction is said to be conferred on this Court by Art. III of the Fédéral Constitution. Section 2, cl. 1, of that Article, provides: “The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State . . . and between a State . . . and foreign . . . Citizens or Subjects.” Section 2, cl. 2, provides: “In ail Cases ... in which a State shall be Party, the suprême Court shall hâve original Jurisdiction.” Finally, 28 U. S. C. § 1251 (b) provides: “The Suprême Court shall hâve original but not exclusive jurisdiction of . . . (3) Ail actions or proceedings by a State against the citizens of another State or against aliens.” While we consider that Ohio’s complaint does state a cause of action that falls within the compass of our original jurisdiction, we hâve concluded that this Court should nevertheless décliné to exercise that jurisdiction. I That we hâve jurisdiction seems clear enough.1 Beyond doubt, the complaint on its face reveals the existence of a 1 The matter is well treated in the Soliciter General’s amicus brief, which satisfactorily deals with a number of considérations which we find it unnecessary to discuss in this opinion. 496 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. genuine “case or controversy” between one State and citizens of another, as well as a foreign subject. Diversity of citizenship is absolute. Nor is the nature of the cause of action asserted a bar to the exercise of our jurisdiction. While we hâve refused to entertain, for example, original actions designed to exact compliance with a State’s penal laws, Wisconsin v. Pélican Ins. Co., 127 U. S. 265 (1888), or that seek to embroil this tribunal in “political questions,” Mississippi v. Johnson, 4 Wall. 475 (1867) ; Georgia v. Stanton, 6 Wall. 50 (1868), this Court has often adjudicated controversies between States and between a State and citizens of another State seeking to abate a nuisance that exists in one State yet produces noxious conséquences in another. See Missouri n. Illinois, 180 U. S. 208 (1901) (complaint filed), 200 U. S. 496 (1906) (final judgment) ; Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907); New York v. New Jersey, 256 U. S. 296 (1921); New Jersey v. New York City, 283 U. S. 473 (1931). In short, precedent leads almost ineluctably to the conclusion that we are empowered to résolve this dispute in the first instance.2 Ordinarily, the foregoing would suffice to settle the issue presently under considération : whether Ohio should be granted leave to file its complaint. For it is a time- 2 While we possess jurisdiction over Dow America and Wyandotte simply on the basis of their citizenship, the problem with respect to Dow Canada is quite different with regard to two major issues: whether that foreign corporation has “contacts” of the proper sort sufficient to bring it personally before us, and whether service of process can lawfully be made upon Dow Canada. Were we to décidé to entertain this complaint, however, it seems reasonably clear that the better course would be to reserve this aspect of the jurisdictional issue pending ascertainment of additional facts, rather than to résolve it now. Thus, for purposes of ruling on Ohio’s motion for leave to file its complaint, we treat the question of jurisdiction over ail three défendants as a unitary one. OHIO v. WYANDOTTE CHEMICALS CORP. 497 493 Opinion of the Court honored maxim of the Anglo-American common-law tradition that a court possessed of jurisdiction generally must exercise it. Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Nevertheless, although it may initially hâve been contemplated that this Court would always exercise its original jurisdiction when properly called upon to do so, it seems évident to us that changes in the American legal System and the development of American society hâve rendered untenable, as a practical matter, the view that this Court must stand willing to adjudicate ail or most legal disputes that may arise between one State and a citizen or citizens of another, even though the dispute may be one over which this Court does hâve original jurisdiction. As our social System has grown more complex, the States hâve increasingly become enmeshed in a multitude of disputes with persons living outside their borders. Consider, for example, the frequency with which States and nonresidents clash over the application of state laws concerning taxes, motor vehicles, decedents’ estâtes, business torts, government contracts, and so forth. It would, indeed, be anomalous were this Court to be held out as a potential principal forum for settling such con-troversies. The simultaneous development of “long-arm jurisdiction” means, in most instances, that no necessity impels us to perform such a rôle. And the évolution of this Court’s responsibilities in the American legal System has brought matters to a point where much would be sacrificed, and little gained, by our exercising original jurisdiction over issues bottomed on local law. This Court’s paramount responsibilities to the national System lie almost without exception in the domain of fédéral law. As the impact on the social structure of fédéral common, statutory, and constitutional law has expanded, our attention has necessarily been drawn more and more to such matters. We hâve no claim 498 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. to spécial compétence in dealing with the numerous conflicts between States and nonresident individuals that raise no serions issues of fédéral law. This Court is, moreover, structured to perform as an appellate tribunal, ill-equipped for the task of factfinding and so forced, in original cases, awkwardly to play the rôle of factfinder without actually presiding over the introduction of evidence. Nor is the problem merely our lack of qualifications for many of these tasks potentially within the purview of our original jurisdiction; it is com-pounded by the fact that for every case in which we might be called upon to détermine the facts and apply unfamiliar legal norms we would unavoidably be reducing the attention we could give to those matters of fédéral law and national import as to which we are the primary overseers. Thus, we think it apparent that we must recognize “the need [for] the exercise of a Sound discrétion in order to protect this Court from an abuse of the opportunity to resort to its original jurisdiction in the enforcement by States of claims against citizens of other States.” Massachusetts v. Missouri, 308 U. S. 1, 19 (1939), opinion of Chief Justice Hughes. See also Georgia n. Pennsylvania R. Co., 324 U. S. 439, 464-465 (1945), and id., at 469-471 (dissenting opinion).3 We believe, however, that 3 In our view the fédéral statute, 28 U. S. C. § 1251 (b) (3), provid-ing that our original jurisdiction in cases such as these is merely concurrent with that of the fédéral district courts, reflects this same judgment. However, this particular case cannot be disposed of by transferring it to an appropriate fédéral district court since this statute by itself does not actually confer jurisdiction on those courts, see C. Wright, Fédéral Courts 502 (2d ed. 1970), and no other statutory jurisdictional basis exists. The fact that there is diversity of citizenship among the parties would not support district court jurisdiction under 28 U. S. C. § 1332 because that statute does not deal with cases in which a State is a party. Nor would fédéral question jurisdiction exist under 28 U. S. C. § 1331. So far as it OHIO v. WYANDOTTE CHEMICALS CORP. 499 493 Opinion of the Court the focus of concern embodied in the above-quoted statement of Chief Justice Hughes should be somewhat re-fined. In our opinion, we may properly exercise such discrétion, not simply to shield this Court from noisome, vexatious, or unfamiliar tasks, but also, and we believe principally, as a technique for promoting and furthering the assumptions and value choices that underlie the cur-rent rôle of this Court in the fédéral System. Protecting this Court per se is at best a secondary considération. What gives rise to the necessity for recognizing such discrétion is pre-eminently the diminished sociétal concern in our function as a court of original jurisdiction and the enhanced importance of our rôle as the final fédéral ap-pellate court. A broader view of the scope and purposes of our discrétion would inadequately take account of the general duty of courts to exercise that jurisdiction they possess. Thus, at this stage we go no further than to hold that, as a general matter, we may décliné to entertain a complaint brought by a State against the citizens of another State or country only where we can say with assurance that (1) déclination of jurisdiction would not disserve any of the principal policies underlying the Article III jurisdictional grant and (2) the reasons of practical wisdom that persuade us that this Court is an inappropriate forum are consistent with the proposition that our discrétion is legitimated by its use to keep this aspect of the Court’s functions attuned to its other responsibilities. II In applying this analysis to the facts here presented, we believe that the wiser course is to deny Ohio’s motion for leave to file its complaint. appears from the présent record, an action such as this, if otherwise cognizable in fédéral district court, would hâve to be adjudicated under state law. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). 500 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. A Two principles seem primarily to hâve underlain con-ferring upon this Court original jurisdiction over cases and controversies between a State and citizens of another State or country. The first was the belief that no State should be compelled to resort to the tribunals of other States for redress, since parochial factors might often lead to the appearance, if not the reality, of partiality to one’s own. Chisholm v. Georgia, 2 Dali. 419, 475-476 (1793) ; Wisconsin v. Pélican Ins. Co., 127 U. S., at 289. The second was that a State, needing an alternative forum, of necessity had to resort to this Court in order to obtain a tribunal competent to exercise jurisdiction over the acts of nonresidents of the aggrieved State. Neither of these policies is, we think, implicated in this lawsuit. The courts of Ohio, under modern principles of the scope of subject matter and in personam jurisdiction, hâve a claim as compelling as any that can be made out for this Court to exercise jurisdiction to adjudicate the instant controversy, and they would décidé it under the same common law of nuisance upon which our détermination would hâve to rest. In essence, the State has charged Dow Canada and Wyandotte with the commission of acts, albeit beyond Ohio’s territorial bound-aries, that hâve produced and, it is said, continue to produce disastrous effects within Ohio’s own domain. While this Court, and doubtless Canadian courts, if called upon to assess the validity of any decree rendered against either Dow Canada or Wyandotte, would be alert to ascertain whether the judgment rested upon an even-handed application of justice, it is unlikely that we would totally deny Ohio’s compétence to act if the allégations made here are proved true. See, e. g., International Shoe Co. v. Washington, 326 U. S. 310 (1945); OHIO v. WYANDOTTE CHEMICALS CORP. 501 493 Opinion of the Court United States v. Aluminum Co. of America, 148 F. 2d 416 (CA2 1945); ALI, Restatement of the Foreign Relations Law of the United States 2d, § 18. And while we cannot speak for Canadian courts, we hâve been given no reason to believe they would be less réceptive to en-forcing a decree rendered by Ohio courts than one issued by this Court. Thus, we do not believe exercising our discrétion to refuse to entertain this complaint would under-mine any of the purposes for which Ohio was given the authority to bring it here. B Our reasons for thinking that, as a practical matter, it would be inappropriate for this Court to attempt to adjudicate the issues Ohio seeks to présent are several. History reveals that the course of this Court’s prior efforts to settle disputes regarding Interstate air and water pollution has been anything but smooth. In Missouri v. Illinois, 200 U. S. 496, 520-522 (1906), Justice Holmes was at pains to underscore the great difficulty that the Court faced in attempting to pronounce a suit-able general rule of law to govern such controversies. The solution finally grasped was to saddle the party seek-ing relief with an unusually high standard of proof and the Court with the duty of applying only legal principles “which [it] is prepared deliberately to maintain against ail considérations on the other side,” id., at 521, an accommodation which, in cases of this kind, the Court has found necessary to maintain ever since.4 See, e. g., New 4 Justice Holmes’ analysis appears to rest, in part, on the fact that in the case before him the conduct complained of was the act of a sovereign State. However, we see no reason why the détermination to impose a high standard of proof would not be equally compelling in a case such as the one before us. Arguably, the necessity for applying virtually unexceptionable legal principles does not obtain where conduct never previously subjected to state law scrutiny is involved, but this is not the case here. See text, infra. 502 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. York n. New Jersey, 256 U. S., at 309. Justice Clarke’s closing plea in New York v. New Jersey, id., at 313, strikingly illustrâtes the sense of futility that has accom-panied this Court s attempts to treat with the complex technical and political matters that inhere in ail disputes of the kind at hand : “We cannot withhold the suggestion, inspired by the considération of this case, that the grave problem of sewage disposai presented by the large and grow-ing populations living on the shores of New York Bay is one more likely to be wisely solved by cooperative study and by conférence and mutual concession on the part of représentatives of the States so vitally interested in it than by proceedings in any court however constituted.” The difficulties that ordinarily beset such cases are severely compounded by the particular setting in which this controversy has reached us. For example, the parties hâve informed us, without contradiction, that a number of official bodies are already actively involved in regulating the conduct complained of here. A Michigan circuit court has enjoined Wyandotte from oper-ating its mercury cell process without judicial author-ization. The company is, moreover, currently utilizing a recycling process specifically approved by the Michigan Water Resources Commission and remains subject to the continued scrutiny of that agency. Dow Canada reports monthly to the Ontario Water Resources Commission on its compliance with the commission’s order prohibiting the company from passing any mercury into the environment. Additionally, Ohio and Michigan are both participants in the Lake Erie Enforcement Conférence, convened a year ago by the Secretary of the Interior pursuant to the Fédéral Water Pollution Control Act, 62 Stat. 1155, OHIO v. WYANDOTTE CHEMICALS CORP. 503 493 Opinion of the Court as amended. The Conférence is studying ail forms and sources of pollution, including mercury, infecting Lake Erie. The purpose of this Conférence is to provide a basis for concerted remédiai action by the States or, if progress in that regard is not rapidly made, for corrective proceedings initiated by the Fédéral Government. 33 U. S. C. § 466g (1964 ed. and Supp. V). And the International Joint Commission, established by the Boundary Waters Treaty of 1909 between the United States and Canada, 36 Stat. 2448, issued on January 14, 1971, a comprehensive report, the culmination of a six-year study carried out at the request of the contracting parties, concerning the contamination of Lake Erie. That document makes spécifie recommendations for joint programs to abate these environmental hazards and rec-ommends that the UC be given authority to supervise and coordinate this effort. In view of ail this, granting Ohio’s motion for leave to file would, in effect, commit this Court’s resources to the task of trying to settle a small piece of a much larger problem that many competent adjudicatory and conciliatory bodies are actively grappling with on a more practical basis. The nature of the case Ohio brings here is equally disconcerting. It can fairly be said that what is in dispute is not so much the law as the facts. And the factfinding process we are asked to undertake is, to say the least, formidable. We already know, just from what has been placed before us on this motion, that Lake Erie suffers from several sources of pollution other than mercury; that the scientific conclusion that mercury is a serious water pollutant is a novel one; that whether and to what extent the existence of mercury in natural waters can safely or reasonably be tolerated is a question for which there is presently no firm answer; and that virtually no published research is available describing 504 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. how one might extract mercury that is in fact con-taminating water. Indeed, Ohio is raising factual questions that are essentially ones of first impression to the scientists. The notion that appellate judges, even with the assistance of a most competent Spécial Master, might appropriately undertake at this time to unravel these complexifies is, to say the least, unrealistic. Nor would it suffice to impose on Ohio an unusually high standard of proof. That might serve to mitigate our Personal difficulties in seeking a just resuit that comports with sound judicial administration, but would not lessen the complexity of the task of preparing responsibly to exercise our judgment, or the serious drain on the resources of this Court it would entail. Other factual complexities abound. For example, the Department of the Interior has stated that eight American companies are discharging, or hâve discharged, mercury into Lake Erie or its tributaries. We would, then, need to assess the business practices and relative culpability of each to frame appropriate relief as to the one now before us. Finally, in what has been said it is vitally important to stress that we are not called upon by this lawsuit to résolve difficult or important problems of fédéral law and that nothing in Ohio’s complaint distinguishes it from any one of a host of such actions that might, with equal justification, be commenced in this Court. Thus, enter-taining this complaint not only would fail to serve those responsibilities we are principally charged with, but could well pave the way for putting this Court into a quandary whereby we must opt either to pick and choose arbitrarily among similarly situated litigants or to devote truly enormous portions of our energies to such matters. To sum up, this Court has found even the simplest sort of Interstate pollution case an extremely awkward ve-hicle to manage. And this case is an extraordinarily complex one both because of the novel scientific issues of OHIO v. WYANDOTTE CHEMICALS CORP. 505 493 Douglas, J., dissenting fact inhérent in it and the multiplicity of governmental agencies already involved. Its successful resolution would require primarily skills of factfinding, conciliation, detailed coordination with—and perhaps not infrequent deference to—other adjudicatory bodies, and close supervision of the technical performance of local industries. We hâve no claim to such expertise or reason to believe that, were we to adjudicate this case, and others like it, we would not hâve to reduce drastically our attention to those controversies for which this Court is a proper and necessary forum. Such a serious intrusion on society’s interest in our most deliberate and considerate performance of our paramount rôle as the suprême fédéral ap-pellate court could, in our view, be justified only by the strictest necessity, an element which is evidently totally lacking in this instance. III What has been said here cannot, of course, be taken as denigrating in the slightest the public importance of the underlying problem Ohio would hâve us tackle. Revers-ing the increasing contamination of our environment is manifestly a matter of fundamental import and utmost urgency. What is dealt with above are only considérations respecting the appropriate rôle this Court can assume in efforts to eradicate such environmental blights. We mean only to suggest that our compétence is neces-sarily limited, not that our concern should be kept within narrow bounds. Ohio’s motion for leave to file its complaint is denied without préjudice to its right to commence other appropriate judicial proceedings. It is so ordered. Mr. Justice Douglas, dissenting. The complaint in this case présents basically a classic type of case congenial to our original jurisdiction. It is 506 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. to abate a public nuisance. Such was the claim of Georgia against a Tennessee company which was discharging noxious gas across the border into Georgia. Georgia n. Tennessee Copper Co., 206 U. S. 230. The Court said: “It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they hâve suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source.” Id., at 238. Dumping of sewage in an Interstate stream, Missouri v. Illinois, 200 U. S. 496, or towing garbage to sea only to hâve the tides carry it to a State’s beaches, New Jersey n. New York City, 283 U. S. 473, hâve presented analo-gous situations which the Court has entertained in suits invoking our original jurisdiction. The pollution of Lake Erie or its tributaries by the discharge of mercury or compounds thereof, if proved, certainly créâtes a public nuisance of a seriousness and magnitude which a State by our historié standards may prosecute or pursue as parens patriae. The suit is not precluded by the Boundary Waters Treaty of 1909, 36 Stat. 2448. Article IV provides that the “boundary waters . . . shall not be polluted on either side to the in jury of health or property on the other.” But there is no machinery for direct enforcement of Art. IV. Article VIII empowers the International Joint Commission to “pass upon ail cases involving the use or obstruction or diversion of the waters with respect to which under Articles III and IV . . . the approval of this Commission is required.” Those Articles specifically describe the type of projects for which approval is required. For OHIO v. WYANDOTTE CHEMICALS CORP. 507 493 Douglas, J., dissenting example, Art. IV States that the “[p]arties . . . will not permit the construction or maintenance . . . of any remédiai or protective works or any dams or other obstructions . . . the effect of which is to raise the natural level of waters on the other side of the boundary unless . . . approved by the . . . Commission.” Significantly, the proscription of pollution, which immediately follows this provision in Art. IV, does not mention approval or action by the International Joint Commission. Article X does vest the Commission with power to render binding decisions on matters referred by consent of both parties. But Art. X states that any joint refer-ence “on the part of the United States . . . will be by and with the advice and consent of the Senate, and on the part of His Majesty’s Government with the consent of the Governor General in Council.” In other words, so far as pollution is concerned, the Treaty contains no provision for binding arbitration. Thus, it does not évincé a purpose on the part of the national governments of the United States and Canada to exclude their States and Provinces from seeking other remedies for water pollution. Indeed, Congress in later addressing itself to water pollution in the Fédéral Water Pollution Control Act, 33 U. S. C. § 1151 (1970 ed.), said in § 1 (c) : “Nothing in this chapter shall be construed as im-pairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (in-cluding boundary waters) of such States.” (Em-phasis added.) This litigation, as it unfolds, will, of course, implicate much fédéral law. The case will deal with an important portion of the fédéral domain—the navigable streams and the navigable inland waters which are under the sover-eignty of the Fédéral Government. It has been clear 508 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. since Pollard’s Lessee v. Hagan, 3 How. 212, decided in 1845, that navigable waters were subject to fédéral con-trol. That paramount fédéral dominion extends into the océans beyond low tide. United States n. California, 332 U. S. 19. Congress has enacted numerous laws reaching that domain. One of the most pervasive is the Rivers and Harbors Act of 1899, 30 Stat. 1121, as amended, 33 U. S. C. § 403, which was before us in United States v. Republic Steel Corp., 362 U. S. 482. In that case we read § 13 of the 1899 Act, 33 U. S. C. § 407, which forbids discharge of “any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state” as includ-ing particles in suspension. Id., at 490. In the 1930’s fish and wildlife législation was enacted granting the Secretary of the Interior various heads of jurisdiction over the effects on fish and wildlife of “do-mestic sewage, mine, petroleum, and industrial wastes, érosion silt, and other polluting substances.” See, e. g., 16 U. S. C. § 665. Among other things, the Secretary of the Interior through the Fish and Wildlife Service gave advice to the Corps of Engineers as respects the effects which proposed dredging or filling of estuaries would hâve on fish or wildlife.1 Since that time other changes hâve been made in the design of the fédéral System of water control. The Fédéral Water Pollution Control Act, as amended, 33 U. S. C. § 1151 (1970 ed.), gives broad powers to the Secretary to take action respecting water pollution on complaints of States, and other procedures to secure fédéral abatement of the pollution. Ibid. The National 1 See Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, Serial No. 90-3, p. 32 et seq. OHIO v. WYANDOTTE CHEMICALS CORP. 509 493 Douglas, J., dissenting Environmental Policy Act of 1969, 83 Stat. 852, 42 U. S. C. § 4331 (1964 ed., Supp. V), gives elaborate ecological directions to fédéral agencies and supplies procedures for their enforcement. On December 23, 1970, the President issued an Executive Order 2 which correlates the duties of the Corps of Engineers and the Administrator of the new Environ-mental Protection Agency under the foregoing statutes. Under that Executive Order the Corps in order “to regulate the discharge of pollutants and other refuse matter into the navigable waters of the United States or their tributaries” is directed after consultation with the Administrator to amend its régulations concerning issu-ance of permits. While the Corps is responsible for granting or denying permits, §2 (a) (2), it must accept the findings of the Administrator respecting “water quality standards,” §2(a)(2)(A). On December 31, 1970, the Corps gave notice of its new proposed rules to govern discharges or deposits into navigable waters.3 Yet the fédéral scheme is not pre-emptive of state action. Section 1 (b) of the Water Pollution Control Act déclarés that the policy of Congress is “to recognize, préserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution.” 33 U. S. C. § 1151 (b) (1970 ed.). Section 10 provides that except where the Attorney General has actually obtained a court order of pollution abatement on behalf of the United States, “State and Interstate action to abate pollution of . . . navigable waters . shall not . . . be displaced by Fédéral enforcement action.” § 10 (b), 33 U. S. C. § 1160 (b) (1970 ed.). The new Environmental Quality Improvement Act of 1970, 84 Stat. 114, 42 U. S. C. §4371 (1970 ed.), 2 Exec. Order No. 11574, 35 Fed. Reg. 19627. 3 35 Fed. Reg. 20005. And see 36 Fed. Reg. 983 concerning its proposed policy, practice, and procedure in that regard. 415-649 0 - 72 - 38 510 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. while stating the general policy of Congress in protecting the environment, also states: ‘‘The primary responsibility for implementing this policy rests with State and local governments.” 42 U. S. C. § 4371 (b)(2) (1970 ed.). There is much complaint that in spite of the arsenal of fédéral power little is being done.4 That, of course, is not our problem. But it is our concern that state action is not pre-empted by fédéral law. Under existing fédéral law, the States do indeed hâve primary responsibility for setting water quality standards; the fédéral agency only sets water quality standards for a State if the State de-faults. 33 U. S. C. § 1160 (c) (1970 ed.). There is not a word in fédéral law that bars state action. If, however, défendants had a permit from the Corps to discharge mercury into fédéral waters, the question would be vastly different. But they do not, and so far as ap-pears they are not under any fédéral process and are not parties to any fédéral proceedings. In light of the his-tory of water pollution control efforts in this country it cannot be denied that a vast residual authority rests in the States. And there is no better established remedy in state law than authority to abate a nuisance.5 Much is made of the burdens and perplexities of these original actions. Some are complex, notably those involving water rights. 4 See Polikoff, The Interlake Affair, Wash. Monthly, Vol. 3, No. 1, p. 7 (Mar. 1971). 5 2 W. Blackstone, Commentaries *218 (Cooley 4th ed. 1899) : “[I]t is a nuisance to stop or divert water that used to run to another’s meadow or mill; to corrupt or poison a water-course, by erecting a dyehouse or a lime-pit for the use of trade, in the upper part of the stream; or in short to do any act therein that in its conséquences must necessarily tend to the préjudice of one’s neigh-bour. So closely does the law of England enforce that excellent rule of gospel morality, of ‘doing to others as we would they should do unto ourselves.’ ” OHIO v. WYANDOTTE CHEMICALS CORP. 511 493 Douglas, J., dissenting The drainage of Lake Michigan with the attendant lowering of water levels, afïecting Canadian as well as United States interests, came to us in an original suit in which the Hon. Charles E. Hughes was Spécial Master. This Court entered a decree, Wisconsin v. Illinois, 278 U. S. 367, and has since that time entered supplementary decrees.6 The apportionment of the waters of the Colorado between Arizona and California was a massive undertaking entailing a searching analysis by the Spécial Master, the Hon. Simon H. Rifkind. Our decision was based on the record made by him and on exceptions to his Report. Arizona v. California, 373 U. S. 546. The apportionment of the waters of the North Flatte River among Colorado, Wyoming, and Nebraska came to us in an original action in which we named as Spécial Master, Hon. Michael J. Doherty. We entered a compli-cated decree, which dissenters viewed with alarm, Nebraska v. Wyoming, 325 U. S. 589, but which has not demanded even an hour of the Court’s time during the 26 years since it was entered. If in these original actions we sat with a jury, as the Court once did,7 there would be powerful arguments for abstention in many cases. But the practice has been to appoint a Spécial Master which we certainly would do in this case. We could also appoint—or authorize the Spécial Master to retain—a panel of scientific advisers. The problems in this case are simple compared with those in the water cases discussed above. It is now known that metallic mercury deposited in water is often transformed into a dangerous Chemical. This lawsuit would détermine primarily the extent, if any, to which the défendants are contributing to that contamination at the présent 6 281 U. S. 179, 696; 289 U. S. 395; 309 U. S. 569; 311 U. S. 107; 313 U. S. 547; 388 U. S. 426. 7 Georgia v. Brailsford, 3 Dali. 1. 512 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. time. It would détermine, secondarily, the remedies within reach—the importance of mercury in the particular manufacturing processes, the alternative processes available, the need for a remedy against a specified pol-luter as contrasted to a basin-wide régulation, and the like. The problem, though clothed in Chemical secrecies, can be exposed by the experts. It would indeed be one of the simplest problems yet posed in the category of cases under the head of our original jurisdiction. The Department of Justice in a detailed brief tells us there are no barriers in fédéral law to our assumption of jurisdiction.8 I can think of no case of more transcend-ing public importance than this one. 8 The case is therefore not an appropriate one for application of the teaching of Massachusetts v. Mellon, 262 U. S. 447, 485-486, that “[w]hile the State, under some circumstances, may sue (as parens patriae) for the protection of its citizens (Missouri v. Illinois, 180 U. S. 208, 241), it is no part of its duty or power to enforce their rights in respect of their relations with the Fédéral Government. In that field it is the United States, and not the State, which represents them as parens patriae, when such représentation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.” UNITED STATES v. RANDALL 513 Syllabus UNITED STATES v. RANDALL, TRUSTEE IN BANKRUPTCY CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 125. Argued February 22, 1971— Decided March 24, 1971 The debtor corporation, kept in possession of its business by court order under Chapter XI of the Bankruptcy Act, did not comply with requirements that it deposit withheld taxes in a spécial tax account. It was later adjudicated a bankrupt, and the United States asked the bankruptcy court to pay the amount of withheld taxes prior to payment of costs and expenses of the bankruptcy proceedings, pursuant to 26 U. S. C. § 7501 (a), which provides that the amount of withheld taxes “shall be held to be a spécial fund in trust for the United States.” The referee denied the request, and the District Court and the Court of Appeals agreed. Held: Section 64 (a)(l) of the Bankruptcy Act, which is an over-riding statement of fédéral policy on the question of priorities, clearly provides that the first priority in payments from bankrupt estâtes belongs to the costs and expenses of administration incurred in the bankruptcy proceedings. Pp. 515-517. 419 F. 2d 1068, affirmed. Douglas, J., delivered the opinion of the Court, in which Harlan, Brennan, White, and Marshall, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Black and Stewart, JJ., joined, post, p. 518. Richard B. Stone argued the cause for the United States. With him on the brief were Soliciter General Griswold, Assistant Attorney General Walters, and Crombie J. D. Garrett. Kevin J. Gillogly argued the cause for respondent. With him on the brief was Daniel C. Ahern. 514 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Mr. Justice Douglas delivered the opinion of the Court. Halo Métal Products, Inc. (the debtor) was kept in possession of its business by court order under Chapter XI of the Bankruptcy Act, 11 U. S. C. § 701 et seq. The order required it to open three separate bank accounts for its general, payroll, and tax indebtedness and to make appropriate disbursements from those accounts. Salaries and wages paid were to be credited against the payroll account and checks for wages and for withheld income and social security taxes were to be paid after approval by the referee. Checks for the withheld taxes were to be paid into the tax account. Withdrawals from this account were to be allowed only for payment of withheld taxes and welfare obligations. The debtor did not comply with those requirements. Although it withheld income and social security taxes from the wages of its employées, it did not deposit them in the spécial tax account and did not pay them, as required, to the United States. Later the debtor was adjudicated a bankrupt. The United States, which had previously filed a proof of claim in the Chapter XI proceedings for payment of the taxes, now asked the bankruptcy court to pay the amount of withheld taxes prior to the payment of the costs and expenses of administration of the bankruptcy proceedings. The referee denied the request. The District Court agreed with the referee. The Court of Appeals affirmed the order denying payment, 419 F. 2d 1068. The case is here on pétition for a writ of certiorari which we granted (400 U. S. 817) because of a conflict among the circuits, cf. City of New York v. Rassner, 127 F. 2d 703; United States v. Sampsell, 193 F. 2d 154; Hercules Service Parts Corp. v. United States, 202 F. 2d 938. UNITED STATES v. RANDALL 515 513 Opinion of the Court The United States relies for its priority on 26 U. S. C. § 7501 (a), which provides: “Whenever any person is required to collect or withhold any internai revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a spécial fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penal-ties) as are applicable with respect to the taxes from which such fund arose.” The argument is that withheld taxes are a trust in favor of the United States. It is answered that the debtor-in-possession failed to segregate the taxes so withheld; hence there was no trust. To that the United States replies that since the debtor-in-possession was a court-appointed officer, the misconduct of the officer should not defeat the trust.1 And, the argument continues, creditors are not unfairly harmed since the trust funds were never an asset of the estate. We deal, however, with a Bankruptcy Act which we conclude is an overriding statement of fédéral policy on this question of priorities. Section 64 (a) (1) of the Act, 11 U. S. C. § 104 (a)(l) (1964 ed., Supp. V), provides: “The debts to hâve priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estâtes, and the order of payment, shall be (1) the costs and expenses of administration .... Where an order is entered in a pro- 1 “Where the funds are reoeived by a public officer, such as a receiver or trustée in bankruptcy, the owner of the funds is entitled to priority with respect to the funds so received without further tracing.” 5 A. Scott on Trusts § 521, p. 3652 (3d ed. 1967). 516 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ceeding under any chapter of this title directing that bankruptcy be proceeded with, the costs and expenses of administration incurred in the ensuing bankruptcy proceeding . . . shall hâve priority in ad-vance of payment of the unpaid costs and expenses of administration . . . incurred in the superseded proceeding . . . .” Until 1926 daims for administrative expenses were subordinate to tax daims.2 In that year they were placed ahead of taxes.3 The costs and administrative expenses of a trustée were, however, still subordinate to daims of the referee or creditors for preserving or recov-ering assets.4 In 1952 the Act was amended to give priority to administrative expenses of an ensuing bankruptcy proceeding over unpaid administrative expenses of a superseded proceeding.5 We hâve then a progressive legislative development that (1) marks a décliné in the grant of a tax preference to the United States and (2) marks an ascending priority for costs and expenses of administration. 2 3A Collier on Bankruptcy 2046-2048, 2155-2156 (14th ed. 1969). 3 44 Stat. 662. 4 Collier, supra, n. 2, at 2049, 2050 n. 15. 5 66 Stat. 426. “Unless provision is made for payment of the costs and expenses necessary to liquidate, administer and close the estate in the ensuing bankruptcy proceeding, ahead of ail prior incurred and unpaid administration costs and expenses, there is always danger of a breakdown of administration. There should be assurance to the trustée in the ensuing proceeding that the costs and expenses incurred by him, such as bond and Insurance pre-miums, costs of conducting a public sale and compensation for his services and for the services of his attorney, will be paid out of the assets liquidated and administered by him ahead of the prior unpaid costs and expenses.” S. Rep. No. 1395, 82d Cong., 2d Sess., 5. In 1966 Congress amended § 17 of the Act so as to make dis-chargeable ail taxes due and owing more than three years prior to bankruptcy except, inter alia, those withheld or collected from others but not paid over. Act of July 5, 1966, 80 Stat. 270. UNITED STATES v. RANDALL 517 513 Opinion of the Court We think the statutory policy of subordinating taxes to costs and expenses of administration would not be served by creating or enforcing trusts which eat up an estate, leaving little or nothing for creditors and court officers whose goods and services created the assets. In Nicholas n. United States, 384 U. S. 678, 690-692, we rejected the claim of the United States that under § 7501 (a) of the Internai Revenue Code it was entitled to interest accruing after the arrangement under Chapter XI and during the bankruptcy. We so held because to allow interest would run counter to the “strong policy of § 64 (a) (1) of the Bankruptcy Act.” Id., at 691. To allow the présent claimed priority for the principal would by the same token run counter to the grain of the Bankruptcy Act. This construction conforms with a literal reading of the second sentence of § 7501 (a) which makes the amount of such fund payable “in the same manner and subject to the same provisions and limitations ... as are applicable with respect to the taxes from which such fund arose.” In conformity with Nicholas we read those words against the history of the Bankruptcy Act. So read, the fund is as subordinate as the taxes. See In re Green, 264 F. Supp. 849, 851. What we décidé today is also in accord with those decisions which hold that the spécifie priorities granted by Congress in the Bankruptcy Act govern general-ized statutes giving the United States priority in a wide range of situations.6 Guarantee Co. v. Title Guar-anty Co., 224 U. S. 152; Davis n. Pringle, 268 U. S. 315. Affirmed. 6 The competing Act in those cases was Rev. Stat. § 3466, which read: “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay ail 518 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. Mr. Justice Blackmun, whom The Chief Justice, Mr. Justice Black, and Mr. Justice Stewart join, dissenting. I cannot escape the conviction that the Court’s ruling on this very narrow issue dishonors property of the United States and effects a windfall for those who benefit from the ruling. The amount in issue consists of income and FICA taxes actually withheld from wages of employées. These are not taxes of the debtor. Were it not for the with-holding scheme, the amounts would hâve been paid out to the employées as gross wages and it would hâve been their obligation, as it was prior to the adoption of with-holding, to pay those taxes. Instead, the employer now withholds, and § 7501 (a) of the Internai Revenue Code of 1954, 26 U. S. C. § 7501 (a), appropriately impresses a trust upon the amounts withheld. The Court today defeats the trust only because the arrangement debtor in possession, a corporation which the Court has char-acterized as “an officer of the bankruptcy court,” Nicholas n. United States, 384 U. S. 678, 690 (1966), flagrantly disobeyed the arrangement court’s spécifie order to pay the withholding amounts into a separate bank account. The respondent trustée concédés that if the order had been obeyed, the trustée would hâve no case. Tr. of Oral Arg. 34. The decision in Nicholas does not demand the resuit reached by the Court. That case concerned interest ac-cruing during bankruptcy, not the tax on which the in- the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay ail his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.” UNITED STATES v. RANDALL 519 513 Blackmun, J., dissenting terest was asserted. The présent decision is a long step down the road beyond Nicholas. Neither am I persuaded by the suggestion made by the trustée, and seemingly reflected in the Court’s opinion, that a contrary decision would leave little or nothing for administrative costs of the bankruptcy proceeding and therefore would deter orderly administration of bank-rupt estâtes. I suspect that the fact of bankruptcy administration of a vast number of small- or no-asset cases is a sufficient réfutation of that suggestion. I find myself in accord with the views expressed by the Second, Sixth, and Ninth Circuits. City of New York v. Rassner, 127 F. 2d 703 (CA2 1942); In re Air-line-Arista Printing Corp., 267 F. 2d 333 (CA2 1959), aff’g 156 F. Supp. 403 (SDNY 1957) ; Hercules Service Parts Corp. v. United States, 202 F. 2d 938 (CA6 1953) ; United States n. Sampseïl, 193 F. 2d 154 (CA9 1951). I would reverse. 520 OCTOBER TERM, 1970 Syllabus 401 U. S. UNITED STATES v. DISTRICT COURT IN AND FOR THE COUNTY OF EAGLE et al. CERTIORARI TO THE SUPREME COURT OF COLORADO No. 87. Argued Mar ch 2, 1971—Decided March 24, 1971 This case arises from the attempted joinder pursuant to 43 U. S. C. § 666 of the United States as a défendant in a proceeding in state court for the adjudication of water rights covering the Eagle River System in Colorado. Under § 666 (a) “[c]onsent is given to juin the United States as a défendant in any suit (1) for the adjudication of rights to the use of water of a river System or other source, or (2) for the administration of such rights, where it appears that the United States [owns] or is in the process of acquiring water rights by appropriation under State law, by pur-chase, by exchange, or otherwise . . . The United States con-tended that § 666 applies only to water rights that it had acquired under state law and does not constitute consent to hâve adjudi-cated in a state court the Government’s reserved water rights arising from withdrawals of land from the public domain. Its objection was overruled by the trial court and the Colorado Suprême Court denied the Government’s motion for a writ of prohibition. Held: Section 666 (a) is an all-inclusive statutory provision that subjects to general adjudication in state proceedings ail rights of the United States to water within a particular State’s jurisdiction regardless of how they were acquired. Any conflict between adjudicated rights and reserved rights of the United States, if preserved in the state proceeding, can ultimately be reviewed in this Court. Pp. 522-526. 169 Colo. 555, 458 P. 2d 760, affirmed. Mr. Justice Douglas delivered the opinion for a unanimous Court. Mr. Justice Harlan, though joining in the opinion, filed a concurring statement, post, p. 530. Deputy Assistant Attorney General Kiechel argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Kashiwa, Francis X. Beytagh, Jr., Edmund B. Clark, and Charles N. Woodruff. U. S. v. DISTRICT COURT FOR EAGLE COUNTY 521 520 Opinion of the Court Kenneth Balcomb argued the cause for respondents. With him on the brief were Robert L. McCarty, George L. Zoellner, Don H. Sherwood, and Raphaël J. Moses. Briefs of amici curiae were filed by Gary K. Nelson, Attorney General, and Irving A. Jennings for the State of Arizona et al. ; by Thomas C. Lynch, Attorney General, Walter S. Rountree, Assistant Attorney General, and David B. Stanton, Deputy Attorney General, for the State of California; by Duke W. Dunbar, Attorney General of Colorado, Lee Johnson, Attorney General of Oregon, Harvey Dickerson, Attorney General of Nevada, Robert M. Robson, Attorney General of Idaho, Robert L. Woodahl, Attorney General of Montana, and G. Kent Edwards, Attorney General of Alaska, for the States of Colorado et al. ; by G. T. Blankenship, Attorney General, and W. Howard O’Bryan, Jr., Assistant Attorney General, for the State of Oklahoma; by Vernon B. Romney, Attorney General, Robert B. Hansen, Deputy Attorney General, and Dallin W. Jensen, Assistant Attorney General, for the State of Utah ; by Slade Gorton, Attorney General, and Charles B. Roe, Jr., and Henry W. Ipsen, Assistant Attorneys General, for the State of Washington; and by James E. Barrett, Attorney General, Sterling A. Case, Deputy Attorney General, and Jack R. Gage, Spécial Assistant Attorney General, for the State of Wyoming. Mr. Justice Douglas delivered the opinion of the Court. Eagle River is a tributary of the Colorado River; and Water District 37 is a Colorado entity encompassing ail Colorado lands irrigated by water of the Eagle and its tributaries. The présent case started in the Colorado courts and is called a supplémentai water adjudication under Colo. Rev. Stat. Ann. § 148-9-7 (1963). The Colorado court issued a notice which, inter alia, asked ail 522 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. owners and claimants of water rights in those streams “to file a statement of claim and to appear ... in regard to ail water rights owned or claimed by them.” The United States was served with this notice pursuant to 43 U. S. C. § 666.1 The United States moved to be dismissed as a party, asserting that 43 U. S. C. § 666 does not constitute consent to hâve adjudicated in a state court the reserved water rights of the United States. The objections of the United States were overruled by the state District Court and on a motion for a writ of prohibition the Colorado Suprême Court took the same view. 169 Colo. 555, 458 P. 2d 760. The case is here on a pétition for certiorari, which we granted. 397 U. S. 1005. We affirm the Colorado decree. It is clear from our cases that the United States often has reserved water rights based on withdrawals from the public domain. As we said in Arizona v. California, 373 U. S. 546, the Fédéral Government had the authority both before and after a State is admitted into the Union “to reserve waters for the use and benefit of 1 66 Stat. 560, 43 U. S. C. § 666 (a), provides: “Consent is given to join the United States as a défendant in any suit (1) for the adjudication of rights to the use of water of a river System or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to hâve waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.” U. S. v. DISTRICT COURT FOR EAGLE COUNTY 523 520 Opinion of the Court federally reserved lands.” Id., at 597. The federally reserved lands include any fédéral enclave. In Arizona v. California we were primarily concerned with Indian réservations. Id., at 598-601. The réservation of waters may be only implied and the amount will reflect the nature of the fédéral enclave. Id., at 600-601. Here the United States is primarily concerned with reserved waters for the White River National Forest, withdrawn in 1905, Colorado having been admitted into the Union in 1876. The United States points out that Colorado water rights are based on the appropriation System which re-quires the permanent fixing of rights to the use of water at the time of the adjudication, with no provision for the future needs, as is often required in case of reserved water rights.2 Ibid. Since those rights may potentially be at war with appropriative rights, it is earnestly urged that 43 U. S. C. § 666 gave consent to join the United States only for the adjudication of water rights which the United States acquired pursuant to state law. The consent to join the United States “in any suit (1) for the adjudication of rights to the use of water of a river System or other source” would seem to be ail-inclusive. We deem almost frivolous the suggestion that the Eagle and its tributaries are not a “river System” within the meaning of the Act. No suit by any State could possibly encompass ail of the water rights in the entire Colorado River which runs through or touches many States. The “river System” must be read as em-bracing one within the particular State’s jurisdiction. With that to one side, the first clause of § 666 (a)(l), read literally, would seem to cover this case for “rights to the use of water of a river System” is broad enough to embrace “reserved” waters. 2 See Coflin v. Left Hand Ditch Co., 6 Colo. 443, 446; Mas on v. Hills Land & Cattle Co., 119 Colo. 404, 204 P. 2d 153. 524 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. The main reliance of the United States appears to be on Clause 2 of § 666 (a) which reads: “. . . for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” This provision does not qualify § 666 (a)(l), for (1) and (2) are separated by an “or.” Yet even if “or” be read as “and,” we see no difficulty with Colorado’s position. Section 666 (a) (2) obviously includes water rights previously acquired by the United States through appropriation or presently in the process of being so acquired. But we do not read § 666 (a) (2) as being restricted to appropriative rights acquired under state law. In the first place “the administration of such rights” in § 666 (a) (2) must refer to the rights described in (1) for they are the only ones which in this context “such” could mean; and as we hâve seen they are all-inclusive, in terms at least. Moreover, (2) covers rights acquired by appropriation under state law and rights acquired “by purchase” or “by exchange,” which we assume would normally be appropriative rights. But it also includes water rights which the United States has “otherwise” acquired. The doctrine of ejusdem generis is invoked to maintain that “or otherwise” does not encompass the adjudication of reserved water rights, which are in no way dépendent for their création or existence on state law.3 We reject that conclusion for we deal with an all-inclusive statute concerning “the adjudication of rights to the use of water of a river System” which in § 666 (a)(l) has no exceptions and which, as we read it, includes appropriative rights, riparian rights, and reserved rights. 3 See Comment, 48 Calif. L. Rev. 94, 111 (1960). U. S. v. DISTRICT COURT FOR EAGLE COUNTY 525 520 Opinion of the Court It is said that this adjudication is not a “general” one as required by Dugan v. Rank, 372 U. S. 609, 618. This proceeding, unlike the one in Dugan, is not a private one to détermine whether named claimants hâve priority over the United States. The whole community of daims is involved and as Senator McCarran, Chairman of the Committee reporting on the bill, said in reply to Senator Magnuson: 4 “S. 18 is not intended . . . to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate ail of the rights of various owners on a given stream. This is so because unless ail of the parties owning or in the process of acquiring water rights on a particular stream can be joined as parties défendant, any subséquent decree would be of little value.” It is said, however, that since this is a supplémentai adjudication only those who claim water rights acquired since the last adjudication of that water district are before the court.5 It is also said that the earliest priority date decreed in such an adjudication must be later than the last priority date decreed in the preceding adjudication.6 The last water adjudication in this water district was entered on February 21, 1966, and the United States was not a party to that or to any prior proceeding in this water district. The United States accordingly says that since the United States cannot be barred by the previous decrees and since the owners of previously decreed rights are not before the court, the consent envisaged by 43 U. S. C. § 666 is not présent. We think that argument is extremely technical; and we décliné to confine 43 U. S. C. § 666 so narrowly. The absence of owners of previously decreed rights may pre- 4 S. Rep. No. 755, 82d Cong., lst Sess., 9. And see Pacific Live Stock Co. v. Oregon Water Bd., 241 U. S. 440, 448. 5 Colo. Rev. Stat. Ann. § 148-9-7. 6 Id., § 148-9-13. 415-649 0 - 72 - 39 526 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. sent problems going to the merits, in case there develops a collision between them and any reserved rights of the United States.7 Ail such questions, including the volume and scope of particular reserved rights, are fédéral questions which, if preserved, can be reviewed here after final judgment by the Colorado court. Affirmed [For concurring statement of Mr. Justice Karlan, see post, p. 530.] 7 The Colorado court stated : “We are not determining whether the United States has reserved water rights in connection with lands withdrawn subséquent to August 1, 1876, the date of Colorado’s admission to the Union; nor, if so, whether these rights hâve priority over previously adjudicated rights. These questions properly should be decided after the United States présents its spécifie daims for adjudication and the issues of fact and law are clearly drawn.” 169 Colo., at 577, 458 P. 2d, at 770. U. S. v. DISTRICT COURT FOR WATER DIV. NO. 5 527 Syllabus UNITED STATES v. DISTRICT COURT IN AND FOR WATER DIVISION NO. 5 et al. CERTIORARI TO THE SUPREME COURT OF COLORADO No. 812. Argued March 2, 1971— Decided March 24, 1971 In this companion case to U. S. v. District Court for Eagle County, ante, p. 520, the United States had been served with notice pur-suant to 43 U. S. C. § 666 of a proceeding in state court for the adjudication of water rights affecting areas of the State in the drainage basins of the Colorado River system. In addition to its claim that § 666 does not apply to state court suits against the Government for adjudication of its reserved water rights, the Government contended that the state statutory proceedings involved in this case, which contemplated monthly proceedings before a water referee on water rights applications filed within a particular month, do not constitute general adjudications of water rights under § 666 because ail the water users and ail water rights on a stream System are not implicated in the referee’s déterminations. The Government’s contentions were rejected by the state courts. Held: 1. The state court has jurisdiction to adjudicate the reserved water rights of the United States. Eagle County, supra. P. 529. 2. The state statutory proceedings are within the scope of § 666 and reach ail daims in their totality, although the adjudication is made on a monthly basis. Pp. 529-530. Affirmed. Mr. Justice Douglas delivered the opinion for a unanimous Court. Mr. Justice Harlan, though joining in the opinion, filed a concurring statement, post, p. 530. Deputy Assistant Attorney General Kiechel argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, Samuel Huntington, and Edmund B. Clark. 528 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Kenneth Balcomb argued the cause for respondents. With him on the brief was Robert L. McCarty. Mr. Justice Douglas delivered the opinion of the Court. This is a companion case to the Eagle County case, ante, p. 520, and involves an action brought under a different state statute 1 in the District Court of Colorado for Water Division No. 5.2 That court was given respon-sibility for water rights déterminations affecting “ail lands in the state of Colorado in the drainage basins of the Colorado river and ail of its tributaries arising within Colorado, with the exception of the Gunnison river,” 3 which includes the area of the Eagle River System. Notice was served on the United States pursuant to 43 U. S. C. § 666 (b) and it moved to quash the service. That motion was denied. A writ of prohibition was sought in the Suprême Court and it was also denied. The case is here on a pétition for a writ of certiorari which we granted. 400 U. S. 940. The area covered by this suit includes vastly more extensive water rights than those involved in the Eagle County case. The Forest Service administers four separate national forests in the area: the White River, Arapaho, Routt, and Grand Mesa-Uncompahgre. The Department of the Interior, through the Bureau of Réclamation, the National Park Service, the Bureau of Land Management, the Bureau of Mines, and the Bureau of 1 The Colorado Water Rights Détermination and Administration Act of 1969, Colo. Rev. Stat. Ann. § 148-21-1 et seq., Colo. Rev. Stat. Ann. §148-21-18(3) (Supp. 1969). 2 The 1969 Act here in question abolished the 70 water districts previously existing and replaced them with seven water divisions. 3 Colo. Rev. Stat. Ann. § 148-21-8 (6). U. S. v. DISTRICT COURT FOR WATER DIV. NO. 5 529 527 Opinion of the Court Sport Fisheries and Wildlife, makes use of water in Water Division No. 5 for national recreational and other pur-poses. The Department of the Navy administers certain naval petroleum and oil shale reserves which, if ever developed, would require water to accomplish the fédéral purpose for which the réservations were made. The major issue—the scope of the consent-to-be-sued provision in 43 U. S. C. § 666—has been covered in the Eagle County opinion and need not be repeated here. It is emphasized, however, that the procedures under the new Act are much more burdensome on the Government than they were under the older Act. It is pointed out that the new statute contemplâtes monthly proceedings before a water referee on water rights applications. These proceedings, it is argued, do not constitute general adjudications of water rights because ail the water users and ail water rights on a stream System are not involved in the referee’s déterminations. The only water rights considered in the proceeding are those for which an application has been filed within a particular month. It is also said that the Act makes ail water rights confirmed under the new procedure junior to those previously awarded. It is argued from those premises that the proceeding does not constitute a general adjudication which 43 U. S. C. § 666 contemplated. As we said in the Eagle County case, the words “general adjudication” were used in Dugan v. Rank, 372 U. S. 609, 618, to indicate that 43 U. S. C. § 666 does not cover consent by the United States to be sued in a private suit to détermine its rights against a few claimants. The présent suit, like the one in the Eagle County case, reaches ail daims, perhaps month by month but inclusively in the totality; and, as we said in the other case, if there is a collision between prior adju- 530 OCTOBER TERM, 1970 Harlan, J., concurring 401 U. S. dicated rights and reserved rights of the United States, the fédéral question can be preserved in the state decision and brought here for review. Affirmed. Mr. Justice Harlan, concurring.* I join in the opinions of the Court in these cases, explicitly disclaiming, however, the intimation of any view as to the existence and scope of the so-called “reserved water rights” of the United States, either in general or in the particular situations here involved. *This statement applies also to No. 87, United States v. District Court in and for the County of Eagle et al., ante, p. 520. RADICH v. NEW YORK 531 Per Curiam RADICH v. NEW YORK APPEAL FROM THE COURT OF APPEALS OF NEW YORK No. 169. Argued February 22, 1971—Decided March 24, 1971 26 N. Y. 2d 114, 257 N. E. 2d 30, affirmed by an equally divided Court. Richard G. Green argued the cause for appellant. With him on the briefs were Shirley Fingerhood and Melvin L. Wulf. Michael R. Juviler argued the cause for appellee. With him on the brief were Frank S. Hogan and William C. Donnino. John B. Hightower et al. filed a brief as amicus curiae urging reversai. Louis J. Lejkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging afiirmance. Per Curiam. The judgment is affirmed by an equally divided Court. Mr. Justice Douglas took no part in the considération or decision of this case. 532 OCTOBER TERM, 1970 Syllabus 401 U. S. LABINE, TUTRIX v. VINCENT, ADMINISTRATOR APPEAL FROM THE SUPREME COURT OF LOUISIANA No. 5257. Argued January 19, 1971—Decided March 29, 1971 Ezra Vincent died intestate, survived by only collateral relations and an illegitimate daughter, whose guardian (appellant) sued to hâve her declared Vincent’s sole heir. The trial court ruled that under Louisiana law the collateral relations took the decedent’s property to the exclusion of the daughter, who had been acknowledged by her father but not légitimâted. The Louisiana Court of Appeal affirmed. The State Suprême Court denied certiorari. Appellant, relying on Levy v. Louisiana, 391 U. S. 68, contends that Louisiana’s intestate succession laws that bar an illegitimate child from shar-ing equally with legitimate children in the father’s estate constitute an invidious discrimination violative of the Due Process and Equal Protection Clauses of the Constitution. Held: The Louisiana statutory intestate succession scheme is within the State’s power to establish rules for the protection and strengthening of family life and for the disposition of property, and in view of various statutory alternatives, none of which was chosen by Vincent, did not (unlike the situation in Levy) constitute an insur-mountable barrier to illegitimate children. Pp. 535-540. 255 La. 480, 231 So. 2d 395, affirmed. See: 229 So. 2d 449. Black, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Harlan, J., filed a concurring opinion, post, p. 540. Brennan, J., filed a dissenting opinion, in which Douglas, White, and Marshall, JJ., joined, post, p. 541. James J. Cox argued the cause and filed a brief for appellant. James A. Leithead argued the cause for appellee. With him on the brief was Norman F. Anderson. Briefs of amici curiae urging reversai were filed by Harry D. Krause, Norman Dorsen, and Melvin L. Wulf for the American Civil Liberties Union, and by Jonathan Weiss and David Gilman for the Center on Social Wel-fare Policy and Law. LABINE v. VINCENT 533 532 Opinion of the Court Briefs of amici curiae urging affirmance were filed by Jack P. F. Gremillion, Attorney General, for the State of Louisiana, and by A. Leon Hebert and E. Drew McKinnis for the Buras Heirs et al. Mr. Justice Black delivered the opinion of the Court. In this appeal the guardian (tutrix) of an illegitimate minor child attacks the constitutionality of Louisiana’s laws that bar an illegitimate child from sharing equally with légitimâtes in the estate of their father who had publicly acknowledged the child, but who died without a will. To understand appellant’s constitutional arguments and our decision, it is necessary briefly to review the facts giving rise to this dispute. On March 15, 1962, a baby girl, Rita Vincent, was born to Lou Bertha Patterson (now Lou Bertha Labine) in Calcasieu Parish, Louisiana. On May 10, 1962, Lou Bertha Patterson and Ezra Vincent, as authorized by Louisiana law, jointly executed before a notary a Louisiana State Board of Health form acknowledging that Ezra Vincent was the ‘‘natural father” of Rita Vincent.1 This public ac-knowledgment of parentage did not, under Louisiana law, give the child a legal right to share equally with legitimate children in the parent’s estate but it did give her a right to claim support from her parents or their heirs. The acknowledgment also gave the child the ca-pacity under Louisiana law to be a limited beneficiary under her father’s will in the event he left a will naming her, which he did not do here. Ezra Vincent died intestate, that is, without a will, on September 16, 1968, in Rapides Parish, Louisiana, leaving substantial property within the State, but no will to direct its distribution. Appellant, as the guardian of Rita Vincent, petitioned in state court for the appoint-ment of an administrator for the father’s estate; for 1 See App. 8. 534 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. a déclaration that Rita Vincent is the sole heir of Ezra Vincent; and for an order directing the administrator to pay support and maintenance for the child. In the alternative, appellant sought a déclaration that the child was entitled to support and maintenance of $150 per month under a Louisiana child support law.2 The administrator of the succession of Ezra Vincent answered the pétition claiming that Vincent’s relatives were entitled to the whole estate. He relied for the claim upon two articles of the Louisiana Civil Code of 1870: Art. 206, which provides: “Illegitimate children, though duly acknowledged, can not claim the rights of legitimate children. . . .” and Art. 919, which provides: “Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the State.” The court ruled that the relatives of the father were his collateral relations and that under Louisiana’s laws of intestate succession took his property to the exclusion of acknowledged, but not legitimated, illegitimate children. The court, therefore, dismissed with costs the guardian mother’s pétition to recognize the child as an heir. The court also ruled that in view of Social Security payments of $60 per month and Vétérans Administration payments of $40 per month available for the support of the child, the guardian for the child was not entitled to support or maintenance from the succession of Ezra Vin 2 La. Civ. Code Ann., Art. 240, provides: “Fathers and mothers owe alimony to their illegitimate children, when they are in need . . . .” Art. 241 provides: “Illegitimate children hâve a right to claim this alimony, not only from their father and mother, but even from their heirs after their death.” LABINE v. VINCENT 535 532 Opinion of the Court cent.3 The Louisiana Court of Appeal, Third Circuit, affirmed and the Suprême Court of Louisiana denied a pétition for writ of certiorari. The child’s guardian ap-pealed and we noted probable jurisdiction. 400 U. S. 817 (1970). In this Court appellant argues that Louisiana’s statutory scheme for intestate succession that bars this ille-gitimate child from sharing in her father’s estate consti-tutes an invidious discrimination against illegitimate children that cannot stand under the Due Process and Equal Protection Clauses of the Constitution. Much reliance is placed upon the Court’s decisions in Levy n. Louisiana, 391 U. S. 68 (1968), and Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73 (1968). For the reasons set out below, we find appellant’s reliance on those cases misplaced, and we décliné to extend the rationale of those cases where it does not apply. Accordingly, we affirm the decision below. In Levy the Court held that Louisiana could not con-sistently with the Equal Protection Clause bar an illegitimate child from recovering for the wrongful death of its mother when such recoveries by legitimate children were authorized. The cause of action alleged in Levy was in tort. It was undisputed that Louisiana had created a statutory tort4 and had provided for the survival of the deceased’s cause of action,5 so that a large class of persons injured by the tort could recover damages in compensation for their injury. Under those circumstances the Court held that the State could not totally exclude from 3 Rita Vincent qualifies as Ezra Vincent’s child for fédéral social security and veteran’s benefits by virtue of his acknowledgment of paternity, 42 U. S. C. § 416 (h) (3) (A) (i) (I) (1964 ed, Supp. V) and 38 U. S. C. § 101 (4) (1964 ed, Supp. V). No question has been raised concerning the legality under fédéral law of reliance upon such benefits to relieve parents or their estâtes from the state-imposed obligations of child support. 4 La. Civ. Code Ann, Art. 2315 (1952). 5 Ibid. 536 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. the class of potential plaintiffs illegitimate children who were unquestionably injured by the tort that took their mother’s life. Levy did not say and cannot fairly be read to say that a State can never treat an illegitimate child differently from legitimate offspring.6 The people of Louisiana, through their législature hâve carefully regulated many of the property rights incident to family life. Louisiana law prescribes certain formali-ties requisite to the contracting of marriage.7 Once marriage is contracted there, husbands hâve obligations to their wives.8 Fathers hâve obligations to their children.9 Should the children prosper while the parents fall upon hard times, children hâve a statutory obligation to support their parents.10 To further strengthen and preserve family ties, Louisiana régulâtes the disposition of property upon the death of a family man. The surviving spouse is entitled to an interest in the deceased spouse’s estate.11 Legitimate children hâve a right of forced heir-ship in their father’s estate and can even retrieve property transferred by their father during his lifetime in réduction of their rightful interests.12 6 Nor is Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73 (1968), analogous to this case. In Glona the majority relied on Louisiana’s “curions course” of sanctions against illegitimacy to demonstrate that there was no “rational basis” for prohibiting a mother from recovering for the wrongful death of her son. Id., at 74-75. Even if we were to apply the “rational basis” test to the Louisiana intestate succession statute, that statute clearly has a rational basis in view of Louisiana’s interest in promoting family life and of directing the disposition of property left within the State. 7 La. Civ. Code Ann., Arts. 90-98 (1952). 8 La. Civ. Code Ann., Arts. 119, 120 (1952). 9 “Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.” La. Civ. Code Ann., Art. 227 (1952). See n. 2, supra. 10 La. Civ. Code Ann., Art. 229 (1952). 11 La. Civ. Code Ann., Art. 915 (1952). 12 La. Civ. Code Ann., Arts. 1493-1495 (1952). LABINE v. VINCENT 537 532 Opinion of the Court Louisiana also has a complex set of rules regarding the rights of illegitimate children. Children born out of wedlock and who are never acknowledged by their parents apparently hâve no right to take property by intestate succession from their father’s estate. In some instances, their father may not even bequeath property to them by will.13 Illegitimate children acknowledged by their fathers are “natural children.” Natural children can take from their father by intestate succession “to the exclusion only of the State.” They may be be-queathed property by their father only to the extent of either one-third or one-fourth of his estate and then only if their father is not survived by legitimate children or their heirs.14 Finally, children born out of wedlock can be legitimated or adopted, in which case they may take by intestate succession or by will as any other child. These rules for intestate succession may or may not reflect the intent of particular parents. Many will think that it is unfortunate that the rules are so rigid. Others will think differently. But the choices reflected by the intestate succession statute are choices which it is within the power of the State to make. The Fédéral Constitution does not give this Court the power to overturn the State’s choice under the guise of constitutional interprétation because the Justices of this Court believe that they can provide better rules. Of course, it may be said that the rules adopted by the Louisiana Législature “dis-criminate” against illegitimates. But the rules also dis-criminate against collateral relations, as opposed to ascendants, and against ascendants, as opposed to descendants. Other rules determining property rights 13 “Natural fathers and mothers can, in no case, dispose of property in favor of their adultérine or incestuous children, unless to the mere amount of what is necessary to their sustenance, or to procure them an occupation or profession by which to support them-selves.” La. Civ. Code Ann., Art. 1488 (1952). 14 La. Civ. Code Ann., Art. 1486 (1952). 538 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. based on family status also “discriminate” in favor of wives and against “concubines.” 15 The dissent attempts to distinguish these other “discriminations” on the ground that they hâve a biological or social basis. There is no biological différence between a wife and a concubine, nor does the Constitution require that there be such a différence before the State may assert its power to pro-tect the wife and her children against the daims of a concubine and her children. The social différence between a wife and a concubine is analogous to the différence between a legitimate and an illegitimate child. One set of relationships is socially sanctioned, legally recog-nized, and gives rise to various rights and duties. The other set of relationships is illicit and beyond the récognition of the law. Similarly, the State does not need biological or social reasons for distinguishing between ascendants and descendants. Some of these discriminatory choices are perhaps more closely connected to our conceptions of social justice or the ways in which most dying men wish to dispose of their property than the Louisiana rules governing illegitimate children. It may be possible that some of these choices are more “rational” than the choices inhérent in Louisiana’s categories of illegitimates. But the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the législature of that State. Absent a spécifie constitutional guarantee, it is for that législature, 15 “Those who hâve lived together in open concubinage are re-spectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables, it can not exceed one-tenth part of the whole value of their estate. “Those who afterwards marry are excepted from this rule.” La. Civ. Code Ann., Art. 1481 (1952). LABINE v. VINCENT 539 532 Opinion of the Court not the life-tenured judges of this Court, to select from among possible laws.16 We cannot say that Louisiana’s policy provides a perfect or even a désirable solution or the one we would hâve provided for the problem of the property rights of illegitimate children.17 Neither can we say that Louisiana does not hâve the power to make laws for distribution of property left within the State. We emphasize that this is not a case, like Levy, where the State has created an insurmountable barrier to this illegitimate child. There is not the slightest suggestion in this case that Louisiana has barred this illegitimate from inheriting from her father. Ezra Vincent could hâve left one-third of his property to his illegitimate daughter had he bothered to follow the simple formali-ties of executing a will. He could, of course, hâve legiti-mated the child by marrying her mother in which case the child could hâve inherited his property either by intestate succession or by will as any other legitimate child. Finally, he could hâve awarded his child the benefit of Louisiana’s intestate succession statute on the same terms as legitimate children simply by stating in his acknowl-edgment of paternity his desire to legitimate the little girl. See Bergeron n. Miller, 230 So. 2d 417 (La. App. 1970). In short, we conclude that in the circumstances presented in this case, there is nothing in the vague general-ities of the Equal Protection and Due Process Clauses 16 “Now the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and term upon which property real or personal within its dominion may be transmitted by last will and testament, or by inheritance ; and of prescribing who shall and who shall not be capable of taking it.” Mager v. Grima, 8 How. 490, 493 (1850). See Lyeth v. Hoey, 305 U. S. 188, 193 (1938). 17 See Krause, Bringing the Bastard into the Great Society—A Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev. 829 (1966). 540 OCTOBER TERM, 1970 Harlan, J., concurring 401 U. S. which empowers this Court to nullify the deliberate choices of the elected représentatives of the people of Louisiana. Affirmed. Mr. Justice Harlan, concurring. In joining the opinion of the Court, I wish to add a few words, prompted, I may say, by the dissenting opinion, which in my view évincés extravagant notions of what constitutes a déniai of “equal protection” in the constitutional sense. It is surely entirely reasonable for Louisiana to provide that a man who has entered into a marital relationship thereby undertakes obligations to any resulting offspring beyond those which he owes to the products of a casual liaison, and this whether or not he admits the fact of fatherhood in the latter case.* With respect to a sub-stantial portion of a man’s estate, these greater obligations stemming from marriage are imposed by the provision of Louisiana law making a man’s legitimate children his forced heirs. For the remainder of his estate, these obligations are not absolute, but are conditional upon his not disposing of his property in other ways. With ail respect to my dissenting Brethren, I deem little short of frivolous the contention that the Equal Protection Clause prohibits enforcement of marital obligations, in either the mandatory or the supplétive form. See H. M. Hart & A. Sacks, The Legal Process: Basic Prob- *Louisiana law authorizes illegitimate children to claim support not only from both parents but also from the parents’ heirs. See ante, at 534 n. 2. It thus goes considerably beyond the common law and statutes generally in force at the time the Fourteenth Amendment was adopted. These rarely did more than authorize public officiais to bring an action directing the putative father to support a child who threatened to become a public charge. See 2 Kent’s Commen-taries *215 and nn. (b) and (c) (12th ed. O. W. Holmes 1873). LABINE v. VINCENT 541 532 Brennan, J., dissenting lems in the Making and Application of Law 35-36, 251-256 (tent. ed. 1958). In addition to imposing these obligations, Louisiana law prohibits testamentary dispositions to one’s illegitimate children. Even were my dissenting Brethren pre-pared to hold this rule of law unconstitutional, to do so would not affect the outcome of this case. First, appellant’s child is “natural” rather than “illegitimate”; and second, if the father desired her to hâve his property after his death, he did not manifest that desire in the appropriate way. Mr. Justice Brennan, with whom Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join, dissenting. In my view, Louisiana’s intestate succession laws, inso-far as they treat illegitimate children whose fathers hâve publicly acknowledged them difïerently from legitimate children, plainly violate the Equal Protection Clause of the Fourteenth Amendment. The Court today effectively concédés this, and, to reach its resuit, resorts to the startling measure of simply excluding such illegitimate children from the protection of the Clause, in order to uphold the untenable and discredited moral préjudice of bygone centuries which vindictively pun-ished not only the illegitimates’ parents, but also the hapless, and innocent, children. Based upon such a premise, today’s decision cannot even prétend to be a principled decision. This is surprising from Justices who hâve heretofore so vigorously decried decisionmaking rested upon personal prédilections, to borrow the Court’s words, of “life-tenured judges of this Court.” Ante, at 539. I respectfully dissent. 415-649 0 - 72 - 40 542 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. I In 1961, Ezra Vincent was 69 years old and Lou Bertha Patterson (now Lou Bertha Labine) was 41. They were unmarried adults living in rural, Southwest Louisiana, outside the town of Lake Charles. Soon after meeting each other in 1961, Mrs. Patterson moved in with Mr. Vincent. Although they did not marry, Mrs. Patterson had a daughter by Mr. Vincent on March 15, 1962. The child’s birth certificate identified the father and mother by name. Within two months, Mr. Vincent and Mrs. Patterson appeared before a notary public and executed a form, in accordance with Louisiana law, acknowledging that Mr. Vincent was the father of the child. A month later, the child’s birth certificate was changed to give the child Mr. Vincent’s name,1 and she has always been known since as Rita Nell Vincent. By acknowledging the child, Mr. Vincent became legally obligated under state law to support her.2 Mr. Vincent and Mrs. Patterson con-tinued to live together and raise Rita Nell until Mr. Vincent died in 1968. He left no will. As natural tutrix of Mr. Vincent’s only child, Rita Nell’s mother brought this suit on the child’s behalf seeking to hâve Rita Nell declared Mr. Vincent’s sole heir. Applying Louisiana law,3 the trial court dismissed the action and declared Mr. Vincent’s collateral relations—his brothers and sisters—to be his heirs.4 The 1 Louisiana law appears to direct that the birth certificate be changed only when the child has been legitimated. La. Rev. Stat. §40:308 (1950). 2 La. Civ. Code Ann., Art. 242 (1952). 3 See Part II, infra. 4 In addition, the trial court, despite uncontradicted testimony that the child required $192 per month for support, rejected the claim for alimony from her father’s estate, as provided in Louisiana LABINE v. VINCENT 543 532 Brennan, J., dissenting child’s tutrix appealed, arguing that to treat a publicly acknowledged illegitimate child differently from a legiti-mate child was a déniai of equal protection and due process. The Louisiana intermediate appellate court affirmed in ail respects, upholding the state statutory provisions against constitutional attack, “[h]owever unfair it may be to punish innocent children for the fault of their parents.” 229 So. 2d 449, 452 (1969). The Louisiana Suprême Court declined review, and we noted probable jurisdiction. 400 U. S. 817 (1970). II The rationality and constitutionality of Louisiana’s treatment of the illegitimate child can only be analyzed against the background of a proper understanding of that State’s law. Under Louisiana law, legitimate children hâve an automatic right to inherit from their parents.5 Legitimate children generally cannot be disinherited.6 law, La. Civ. Code Ann., Arts. 240-242, 243, 919 (1952), on the ground that the child was receiving $100 per month in Social Security and Vétérans Administration benefits. 5La. Civ. Code Ann., Art. 1495 (1952), provides: “In the cases prescribed by the two last preceding articles [legitimate children and parents], the heirs are called jorced heirs, because the donor can not deprive them of the portion of his estate reserved for them by law, except in cases where he has a just cause to disin-herit them.” (Emphasis in original.) & Ibid. A parent can only disinherit a legitimate child if the parent allégés a certain statutorily defined “just cause” in his will and in terms expresses his desire to disinherit the child. La. Civ. Code Ann., Arts. 1617-1620 (1952). Article 1621 of the Louisiana Civil Code spécifiés the “just causes” for which disinherison is permitted: “The just causes for which parents may disinherit their children are ten in number, to wit: “1. If the child has raised his or her hand to strike the parent, or 544 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. Property cannot even be given away without taking account of the rights of a legitimate child, since the portion of the decedent’s estate that can be given away or disposed of through donations inter vivos or mortis causa is sharply limited by law for the benefit of a per-son’s legitimate children.7 Actually the Louisiana Constitution protects this scheme of forced heirship which benefits the decedent’s parents as well as his legitimate children.8 if he or she has actually struck the parent ; but a mere threat is not sufficient. “2. If the child has been guilty, towards a parent, of cruelty, of a crime or grievous injury. “3. If the child has attempted to take the life of either parent. “4. If the child has accused a parent of any capital crime, except, however, that of high treason. “5. If the child has refused sustenance to a parent, having means to afford it. “6. If the child has neglected to take care of a parent become insane. “7. If the child refused to ransom them, when detained in captivity. “8. If the child used any act of violence or coercion to hinder a parent from making a will. “9. If the child has refused to become security for a parent, having the means, in order to take him out of prison. “10. If the son or daughter, being a minor, marries without the consent of his or her parents.” The persons seeking to take against the disinherited forced heir must prove the truth of the “just cause” alleged in the parent’s will. Pennywell v. George, 164 La. 630, 114 So. 493 (1927). Disinherison is not favored. Succession oj Reems, 134 La. 1033, 64 So. 898 (1914). 7 La. Civ. Code Ann., Art. 1493 (1952), provides, in pertinent part: “Donations inter vivos or mortis causa can not exceed two-thirds of the property of the disposer, if he leaves, at his decease, a legitimate child; one-half, if he leaves two children; and one-third, if he leaves three or a greater number.” See generally La. Civ. Code Ann., Arts. 1493-1518 (1952). 8 La. Const., Art. 4, § 16 (1921). LABINE v. VINCENT 545 532 Brennan, J., dissenting This enshrinement of forced heirship in the state constitution symbolizes Louisiana’s extensive legal ordering of familial affairs. Louisiana’s régulation of the family covers not merely the dévolution of property upon the death of any member, but virtually every aspect of the duties owed by one family member to another, and the authority, particularly of the father, over the other mem-bers.9 This reflects the dérivation of Louisiana’s legal traditions from the French, Spanish, and Roman civil law; they do not hâve their roots in English common law: “Countries which received the Roman law in one form or another hâve traditionally ordered relation-ships between citizens in terms of two institutions, family and obligation. . . . [T]he relationships formed by Romanist man were ail grounded in one or both of these institutions. His relationship with his family was determined by law, it established his status, and this, in turn, qualified the relationships which he could make with those who were not his family. . . . [A] man’s position within his family passed into the modem Roman law as the significant qualification to forming private legal relationships.” Tucker, Sources of Louisiana’s Law of Persons: Blackstone, Domat, and the French Codes, 44 Tul. L. Rev. 264, 275-276 (1970) (emphasis added).10 Thus it is that Louisiana law distinguishes between legitimate children and illegitimate children throughout that law’s extensive régulation of family affairs.11 But, for purposes of this case, I need only discuss those portions of Louisiana law that bear upon inheritance rights. 9 See, e. g., La. Civ. Code Ann., Arts. 215-237 (1952). 10 See generally Pelletier & Sonnenreich, A Comparative Analysis of Civil Law Succession, 11 Vill. L. Rev. 323 (1966). 11 See, e. g., La. Civ. Code Ann., Arts. 215-245 (1952). 546 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. Article 178 of the Louisiana Civil Code provides in full: “Children are either legitimate, illegitimate, or legiti-mated.” Not ail illegitimate children can be legitimated, however—only those whose parents do not hâve legitimate descendants or ascendants and could lawfully hâve married each other at the time of the child’s conception, or those whose parents later marry can be legitimated.12 An illegitimate child who can be legitimated becomes a “natural” child when his father formally acknowledges him. However, Article 206 of the Louisiana Civil Code provides that, “[iIllegitimate children, though duly ac-knowledged, can not claim the rights of legitimate children.” Thus, the primary conséquence under Louisiana succession law that flows from acknowledgment is that the natural child may inherit under a will, and inherits if there is no will, only after the father’s other descendants, ascendants, collateral relations, and surviving spouse, but before the estate escheats to the State.13 An illegitimate child whose parents could lawfully hâve married each other at the time of the child’s conception, but who has 12 La. Civ. Code Ann., Art. 200 (1952), provides: “A natural father or mother shall hâve the power to legitimate his or her natural children by an act passed before a notary and two witnesses, declaring that it is the intention of the parent making the déclaration to legitimate such child or children. But only those natural children can be legitimated who are the offspring of parents who, at the time of conception, could hâve contracted marriage. Nor can a parent legitimate his or her natural offspring in the manner prescribed in this article, when there exists on the part of such parent legitimate ascendants or descendants.” (Emphasis added.) La. Civ. Code Ann., Art. 198 (1952), provides: “Children born out of marriage, except those who are bom from an incestuous connection, are legitimated by the subséquent marriage of their father and mother, whenever the latter hâve formally or informally acknowledged them for their children, either before or after the marriage.” 13 See Oppenheim, Acknowledgment and Légitimation in Louisiana—Louisiana Act 50 of 1944, 19 Tul. L. Rev. 325, 327 (1945). LABINE v. VINCENT 547 532 Brennan, J., dissenting not been publicly acknowledged, or an illegitimate child whose parents were not capable of marriage at the time of conception, may not inherit at ail, either by will or intestate succession, “the law allowing them nothing more than a mere alimony.” La. Civ. Code Ann., Art. 920 (1952).14 III Under Louisiana law a legitimate child would hâve had an absolute right to inherit Mr. Vincent’s estate; Mr. Vincent could not hâve totally disinherited such a child. This is a conséquence of Louisiana’s “forced heir-ship” law, in other words a conséquence of a state decision, however contrary that might be to Mr. Vincent’s own desires. Similarly in the présent case, Mr. Vincent’s illegitimate daughter, though duly acknowledged, is de-nied his intestate estate, not because he wished that resuit but because the State places her behind Mr. Vincent’s collateral relations—indeed behind ail his relations—in the line of succession. The State’s discrimination is clear and obvions.15 Ordinarily, even in cases of économie régulation, this 14 See Succession of Elmore, 124 La. 91, 49 So. 989 (1909). 15 As Part II of this opinion makes clear, only parents of illegitimate children who could hâve married at the time of conception and who hâve no legitimate ascendants or descendants may legitimate those children by notarial act. See n. 12, supra. The Court relies on the fact that Mr. Vincent was within this narrow class of fathers of illegitimate children to suggest that Louisiana law allows fathers to décidé whether or not their illegitimate children will inherit the father’s estate. Ante, at 539. Even as to this class, however, Louisiana law places the burden on the father of a publicly acknowledged illegitimate child to take affirmative action to inherit that child, while virtually disabling the same father from disinheriting a legitimate child, or, at least, placing a burden of affirmative action on the father in order to disinherit the legitimate child. Thus, even as to this small group, the discrimination imposed by the State is clear. 548 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. Court will inquire, under the Equal Protection Clause of the Fourteenth Amendment, whether there is some “reasonable basis” for a discrimination in a state statute, or whether the discrimination is invidious. E. g., Morey n. Doud, 354 U. S. 457 (1957) ; Williamson n. Lee Optical Co., 348 U. S. 483 (1955); Yick Wo v. Hopkins, 118 U. S. 356 (1886). Such an inquiry does not question the State’s power to regulate; rather, it focuses exclusively on whether the State has legislated without the invidious discrimination that is forbidden by the Fourteenth Amendment. For reasons not articulated, the Court refuses to con-sider in this case whether there is any reason at ail, or any basis whatever, for the différence in treatment that Louisiana accords to publicly acknowledged illegitimates and to legitimate children. Rather, the Court simply asserts that “the power to make rules to establish, pro-tect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the législature of that State.” Ante, at 538. But no one questions Louisiana’s power to pass inheritance laws.16 Surely the Court 16 The only context in which this statement might hâve relevance would be in the context of the question, not presented in this case, of the power of Congress to regulate the dévolution of property upon the death of citizens of the various States. In such a case, the question would indeed be whether the Constitution commits such power exclusively to the States. It so happens that this Court, in an opinion written by my Brother Black, has held that the Constitution does not commit the power to regulate intestate succession exclusively to the States. United States v. Oregon, 366 U. S. 643, 649 (1961) (“The fact that this [fédéral] law pertains to the dévolution of property does not render it invalid. Although it is true that this is an area normally left to the States, it is not immune under the Tenth Amendment from laws passed by the Fédéral Government which are, as is the law here, necessary and proper to the exercise of a delegated power.”). LABINE v. VINCENT 549 532 Brennan, J., dissenting cannot be saying that the Fourteenth Amendment’s Equal Protection Clause is inapplicable to subjects regu-lable by the States—that extraordinary proposition would reverse a century of constitutional adjudication under the Equal Protection and Due Process Clauses. It is precisely state action which is subjected by the Fourteenth Amendment to its restraints. It is, to say the least, bewildering that a Court that for décades has wrestled with the nuances of the concept of “state action” in order to ascertain the reach of the Fourteenth Amendment, in this case holds that the state action here, because it is state action, is insulated from these restraints. Putting aside the Court’s repeated emphasis on Louisi-ana’s power to regulate intestate succession—something not questioned and wholly irrelevant to the présent constitutional issue—only two passages in the Court’s opinion even attempt an argument in support of today’s resuit. First, the Court tells us that Louisiana intestate succession law favors some classes of a deceased’s relatives over other classes. That is certainly true, but the Court nowhere suggests what bearing these other discriminations hâve on the rationality of Louisiana’s discrimination against the acknowledged illegitimate. It is a little like answering a complaint of Negro school children against separate lavatories for Negro and white students by arguing that the situation is no different from separate lavatories for boys and girls, or for ele-mentary school children and high school students. These other discriminations may be rational or irrational. But their only relevance to the rationality and constitu-tionality of the spécifie challenged discrimination is the light they throw, if any, on the basis for that discrimination. The conclusion the Court appears to draw from its itemization of other discriminations among a de- 550 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. ceased’s relatives is that Louisiana needs no justification at ail for any of the distinctions it draws. That reason-ing Aies in the face not only of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, but also of the very notion of a rule of law. The only other hint at an attempt to support today’s resuit may appear in the purported distinction of Levy n. Louisiana, 391 U. S. 68 (1968): “We emphasize that this is not a case, like Levy, where the State has created an insurmountable barrier to this illegitimate child.” Ante, at 539. There may be two implications in this statement: (1) that in Levy, there was an insurmountable barrier to recovery; and (2) that any discrimination that falls short of an “insurmountable barrier” is, without need for further analysis, permissible. As to the first, Levy in-volved an unacknowledged illegitimate child. Louisiana permitted an illegitimate child to recover in tort for the death of the child’s mother, under the State’s wrongful death act, only if the illegitimate child had been acknowledged. There was no insurmountable barrier to the child’s recovery; if the mother had formally acknowledged the child, recovery would hâve been permitted. My Brother Harlan’s dissent emphasized this fact and argued that the State was entitled to rely on specified formalities. Plainly then Levy did not involve any “insurmountable barrier.” The Court’s second implication—that any discrimination short of an “insurmountable barrier” is permissible—is one of those propositions the mere statement of which is its own réfutation. Levy, as I hâve pointed out, holds squarely to the contrary specifically in the context of discrimination against illegitimate children. And numerous other cases in this Court establish the general proposition that discriminations that “merely” disad-vantage a class of persons or businesses are as subject to LABINE v. VINCENT 551 532 Brennan, J., dissenting the command of the Fourteenth Amendment as discriminations that are in some sense more absolute.17 In short, the Court has not analyzed, or perhaps sim-ply refuses to analyze, Louisiana’s discrimination against acknowledged illegitimates in terms of the requirements of the Fourteenth Amendment.18 Since I still believe that the Constitution does prohibit a State from denying any person the “equal protection of the laws,” I must therefore undertake my own analysis to détermine, at a minimum, whether there is any rational basis for the discrimination, or whether the classification bears any intelligible proper relationship to the conséquences that flow from it.19 See, e. g., Dandridge v. Williams, 397 U. S. 471 (1970); McLaughlin v. Florida, 379 U. S. 184, 17 E. g., Dandridge v. Williams, 397 U. S. 471 (1970); Morey v. Doud, supra; Hunter v. Erickson, 393 U. S. 385 (1969); Douglas v. California, 372 U. S. 353 (1963); Smith v. Cahoon, 283 U. S. 553 (1931). Cf. Plessy v. Ferguson, 163 U. S. 537 (1896); Brown v. Board of Education, 347 U. S. 483 (1954). 18 In one sentence in a footnote, the Court says, “Even if we were to apply the 'rational basis’ test to the Louisiana intestate succession statute, that statute clearly has a rational basis in view of Louisiana’s interest in promoting family life and of directing the disposition of property left within the State.” Ante, at 536 n. 6. I agréé that Louisiana has an interest in promoting family life and in directing the disposition of property left within the State. I do not under-stand how either of these interests provides any basis for Louisiana’s discrimination against the acknowledged illegitimate, and the Court does not explain the relevance of these state interests. 19 In view of my conclusion that the présent discrimination cannot stand even under the “some rational basis” standard, I need not reach the questions whether illegitimacy is a “suspect” classification that the State could not adopt in any circumstances without showing a compelling state interest, or whether fundamental rights are involved, which also would require a showing of a compelling state interest. See Levy v. Louisiana, 391 U. S. 68, 71 (1968); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); Skinner n. Oklahoma, 316 U. S. 535 (1942). This Court has generally treated as suspect a classification that discriminâtes against an individual on the basis of factors over which he has no control. 552 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. 190-191 (1964); Morey v. Doud, supra; Gulj, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 155 (1897). Certainly, there is no biological basis for the State’s distinction. Mr. Vincent’s illegitimate daughter is related to him biologically in exactly the same way as a legitimate child would hâve been. Indeed, it is the identity of interest “in the biological and in the spiritual sense,” Levy n. Louisiana, 391 U. S., at 72, and the identical “intimate, familial relationship,” id., at 71, between both the legitimate and illegitimate child, and their father, which is the very basis for appellant’s contention that the two must be treated alike. Louisiana might be thought to hâve an interest in re-quiring people to go through certain formalities in order to eliminate complicated questions of proof and the opportunity for both error and fraud in determining paternity after the death of the father. This argument, of course, was the focal point of the dissent in Levy and Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73 (1968). I leave aside, for the moment, the fact that the holdings of those two cases indicate that this considération is insufficient to justify a différence in treatment when there is no dispute over the fact of parentage. For my Brother Harlan’s dissenting opinion in those cases explicitly recognized that the State’s interest in this regard is fully satisfied by a formai public acknowl-edgment. 391 U. S., at 80. When a father has formally acknowledged his child or gone through any state author-ized formality for declaring paternity, or when there has been a court judgment of paternity, there is no possible difîiculty of proof, and no opportunity for fraud or error. This purported interest certainly can offer no justification for distinguishing between a formally acknowledged illegitimate child and a legitimate one. It is also important not to obscure the fact that the formality of marriage primarily signifies a relationship LABINE v. VINCENT 553 532 Brennan, J., dissenting between husband and wife, not between parent and child. Analysis of the rationality of any state effort to impose obligations based upon the fact of marriage must, therefore, distinguish between those obligations that run between parties to the marriage and those that run to others. My Brother Harlan, unlike his colleagues in the majority, concédés that the Equal Protection Clause requires a justification for Louisiana’s discrimination against illegitimates, and he attempts one ; he argues that it is reasonable for a State to impose greater obligations on a man in respect to his wife and their children than in respect to other women and any other children of whom he may be the father. In other words, contrary to the Louisiana court below, he apparently believes that Louisiana’s discrimination against illegitimates reflects a state policy that would discourage marriage by imposing spécial burdens, such as those of forced heirship, upon those who enter into it. However that may be, such force as his argument may hâve stems directly from its lack of specificity. Imposition by a State of reciprocal obligations upon husband and wife that are not imposed upon those who do not enter into a formalized marriage relationship is based upon the assumptions (1) that marriage may be pro-moted through pressure applied on or by the party seek-ing the benefit of obligations imposed by the married status, and (2) that in any event the choice is entirely within the control of the two individuals concerned. These éléments are entirely lacking when we consider the relationship of a child vis-à-vis its parents. Pre-cisely this point was made approvingly by Chancelier Kent, relied upon by my Brother Harlan, early in the 19th century: “This relaxation in the laws of so many of the States, of the severity of the common law [discrimina 554 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. tion against illegitimates], rests upon the principle that the relation of parent and child, which exists in this unhappy case, in ail its native and binding force, ought to produce the ordinary legal conséquences of that consanguinity.” 2 J. Kent, Com-mentaries *213 (12th ed. O. Holmes 1873).20 Intestate succession laws might seek to carry out a general intent of parents not to provide for publicly acknowledged illegitimate children. However, as the summary of Louisiana law I hâve made shows, one of the primary hallmarks of Louisiana’s civil code is its detailed, extensive régulation of the family relationship. Its discrimination against the illegitimate in matters of in-heritance and succession is official state policy, completely negating any argument that such discrimination merely represents a legislative judgment about the probable wishes of a deceased or the desires of most persons in similar situations. The opinion of the state court below itself éliminâtes that possibility. The Louisiana court 20 The concurring opinion suggests that the legal obligation to support the illegitimate child imposed by Louisiana law goes “con-siderably beyond the common law and statutes generally in force at the time the Fourteenth Amendment was adopted.” Ante, at 540 n. The authority cited by the concurrence for this proposition describes early 19th century American law on the subject as follows: “The mother, or reputed father, is generally in this country chargeable by law with the maintenance of the bastard child; and in New York it is in such way as any two justices of the peace of the county shall think meet; and the goods, chattels, and real estate of the parents are seizable for the support of such children, if the parents hâve ab-sconded. The reputed father is liable to arrest and imprisonment until he gives security to indemnify the town chargeable with the maintenance of the child. These provisions are intended for the public indemnity, and were borrowed from the several English statutes on the subject; and similar régulations to coerce the putative father to maintain the child, and indemnify the town or parish, hâve been adopted in the several States.” 2 J. Kent, Commentaries *215 (12th ed. O. Holmes 1873). LABINE v. VINCENT 555 532 Brennan, J., dissenting affirmatively States that the disinheritance of acknowledged illegitimates is in furtherance of spécifie state policy goals—goals that are unrelated to parents’ intentions. 229 So. 2d, at 452. Finally, viewing the general statutory treatment of illegitimates as a whole, particu-larly the facts that only a narrow class of fathers can legitimate their children by déclaration, and that un-acknowledged and “adultérons” illegitimates are pro-hibited from inheriting even by will, I think the conclusion is compelled that Louisiana’s discrimination represents state policy, not an attempt to aid in the effectuation of private desires. Even if Louisiana law could be read as being based on a legislative judgment about parents’ intent, the présent discrimination against illegitimates could not stand. In order to justify a discrimination on the ground that it reflects a legislative judgment about the desires of most persons in similar situations, there must be some rational basis21 for finding that the legislative classification does reflect those persons’ desires or intentions as a general matter. The Court makes no argument that fathers who hâve publicly acknowledged their illegitimate children generally intend to disinherit them. No Louisiana court opinion or Louisiana legislative pronouncement that I can discover, or the Attorney General of Louisiana in this case, has ever argued that the Louisiana scheme reflects the general intentions of fathers of illegitimate children in that State. Indeed, the state court below justi-fied the discrimination on the ground that “the déniai of inheritance rights to illegitimates might reasonably be viewed as encouraging marriage and légitimation of children.” 229 So. 2d, at 452. Such déniai could encourage marriage only if fathers generally desire to leave their property to their illegitimate children; otherwise, disin- 21 But see n. 19, supra. 556 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. heritance would not operate as a sanction to encourage marriage. Moreover, logic and common expérience also suggest that a father who has publicly acknowledged his illegiti-mate child will not generally intend to disinherit his child. A man who publicly announces that he has fathered a child out of wedlock has publicly claimed that child for his own. He has risked public opprobrium, or other sanctions, to make the public announcement. Surely, it does not follow that he will generally desire to disinherit that child and further discrédit his réputation by refusing to contribute to his own child at death. Ail the writings cited to us, including a United Nations study report,22 an English study commission,23 the pro-posed Uniform Probate Code,24 and a variety of law review commentary in this country,25 suggest precisely the opposite conclusion. Moreover, Louisiana is the only State in the country that déniés illegitimate children rights of inheritance from the mother equal to those of 22 Subcommission on Prévention of Discrimination and Protection of Minorities of the Commission on Human Rights, United Nations Economie and Social Council, Study of Discrimination against Persons Born Out of Wedlock: General Principles on Equality and Non-Discrimination in Respect of Persons Born out of Wedlock, U. N. Doc. E/CN. 4 Sub. 2/L 453 (Jan. 13, 1967). 23 Stone, Report of the Committee on the Law of Succession in Relation to Illegitimate Persons, 30 Mod. L. Rev. 552 (1967). 24 National Conférence of Commissioners on Uniform State Laws, Uniform Probate Code §2-109 (official text 1969). 25 Note, Ulegitimacy, 26 Brooklyn L. Rev. 45 (1959); Krause, Equal Protection for the Illegitimate, 65 Mich. L. Rev. 477 (1967); Krause, Bringing the Bastard into the Great Society—A Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev. 829 (1966); Gray & Rudovsky, The Court Acknowledges the Illegitimate: Levy v. Louisiana and Glona n. American Guarantee & Liability Insurance Co., 118 U. Pa. L. Rev. 1 (1969); Note, The Rights of Illegitimates Under Fédéral Statutes, 76 Harv. L. Rev. 337 (1962). LABINE v. VINCENT 557 532 Brennan, J., dissenting legitimate children,26 and one of only four States that hâve expressly provided by statute that the illegitimate child may not inherit from his father.27 The législatures of 20 States by statute allow acknowledged illegitimate children to inherit equally from their fathers.28 Three States grant equal rights of inheritance from the father regardless of acknowledgment.29 The législatures of the other 23 States hâve not passed upon the question. The Court nowhere mentions the central reality of this case: Louisiana punishes illegitimate children for the misdeeds of their parents. The judges of the Third Circuit Court of Appeal of Louisiana, whose judgment the Court here reviews, upheld the présent discrimination “[h]owever unfair it may be to punish innocent children for the fault of their parents . . . .” 229 So. 2d, at 452. It is certainly unusual in this country for a person to be legally disadvantaged on the basis of factors over which 26 See the table summarizing state statutes in Note, Illegitimacy, 26 Brooklyn L. Rev. 45, 76-79 (1959). In 1959, New York as well as Louisiana did not allow illegitimate children to inherit equally from their mothers. New York has since changed its law. N. Y. Est., Powers & Trusts Law §4-1.2 (a) (1) (1967). 27 Hawaii Rev. Laws §577-14 (1968); Ky. Rev. Stat. §391.090 (1962); Pa. Stat. Ann., Tit. 20, § 1.7 (1950). 28 Cal. Prob. Code §255 (Supp. 1971); Colo. Rev. Stat. Ann. § 153-2-8 (1963) ; Fia. Stat. § 731.29 (1965) ; Ga. Code Ann. § 74-103 (1964) ; Idaho Code § 14-104 (1947) ; Ind. Ann. Stat. § 6-207 (1953) [adjudication of paternity required]; lowa Code §633.222 (1971); Kan. Stat. Ann. § 59-501 (1964); Mich. Stat. Ann. §27.3178 (153) (Supp. 1970) ; Minn. Stat. § 525.172 (1967) ; Mont. Rev. Codes Ann. §91-404 (1964); Neb. Rev. Stat. §30-109 (1964); Nev. Rev. Stat. § 134.170 (1967); N. M. Stat. Ann. §29-1-18 (1953); N. Y. Est., Powers & Trusts Law §4-1.2 (1967) [order of filiation required]; Okla. Stat. Ann., Tit. 84, §215 (1970); S. D. Compiled Laws Ann. §29-1-15 (1967); Utah Code Ann. § 74-4-10 (1953); Wash. Rev. Code § 11.04.081 (1967); Wis. Stat. Ann. §237.06 (Supp. 1970). 29 Ariz. Rev. Stat. Ann. § 14-206 (1956) ; N. D. Cent. Code § 56-01-05 (Supp. 1969); Ore. Rev. Stat. §§ 111.231, 109.060 (1957). 415-649 0 - 72 - 41 558 OCTOBER TERM, 1970 Brennan, J., dissenting 401 U. S. he never had any control. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U. S. 81, 100 (1943). The state court below explicitly upheld the statute on the ground that the punishment of the child might encourage the parents to marry.30 If that is the State’s objective, it can obviously be attained far more directly by focusing on the parents whose actions the State seeks to influence. Given the importance and nature of the decision to marry, cf. Boddie v. Connecticut, ante, p. 371, I think that disinheriting the illegitimate child must be held to “bear no intelligible proper relation to the conséquences that are made to flow” from the State’s classification. Glona v. American Guarantee & Liability Insurance Co., 391 U. S., at 81 (Harlan, J., dissenting). In my judgment, only a moral préjudice, prévalent in 1825 when the Louisiana statutes under considération were adopted, can support Louisiana’s discrimination against illegitimate children. Since I can find no rational basis to justify the distinction Louisiana créâtes between an acknowledged illegitimate child and a legitimate one, that discrimination is clearly invidious.31 Morey v. Doud, 354 U. S. 457 (1957). I think the Suprême Court of North Dakota stated the correct principle in invalidat- 30 The state court also argued that Louisiana’s disinheritance of the illegitimate would serve the State’s interest in the stability of land titles, by avoiding “the disruptions and uncertainties to resuit from unknown and not easily ascertained claims through averments of parentage . . . .” 229 So. 2d, at 452. This is simply a variation on the State’s interest in relying on formalities, see supra, at 552, which is completely served by public acknowledgment of parentage and simply does not apply to the case of acknowledged illegitimate children. 31 See n. 19, supra. 532 LABINE v. VINCENT Brennan, J., dissenting 559 ing an analogous discrimination in that State’s inherit-ance laws: “This statute, which punishes innocent children for their parents’ transgressions, has no place in our System of government, which has as one of its basic tenets equal protection for ail.” In re Estate of Jensen, 162 N. W. 2d 861, 878 (1968). 560 OCTOBER TERM, 1970 Syllabus 401 U. S. WHITELEY v. WARDEN, WYOMING STATE PENITENTIARY CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 136. Argued January 13, 1971—Decided March 29, 1971 A sheriff, acting on a tip, made a complaint before a magistrale charg-ing that petitioner and another individual on the date and at the place named “did then and there unlawfully break and enter into [the described] locked . . . building,” and a warrant was issued. A police radio bulletin named and described the two persons, the type of car they were probably driving, and the amount and type of money taken. Relying on the bulletin, an officer in another county made a warrantless arrest of the suspects. The car was then searched and various incriminating items removed, which were later used at petitioner’s trial, which resulted in his conviction. Petitioner filed a habeas corpus pétition reiterating the challenge he had made at his arraignment and trial to the constitutionality of the use of evidence seized during a search incident to the as-sertedly illégal arrest. The District Court denied the pétition, and the Court of Appeals affirmed. Held: 1. Petitioner’s arrest violated his rights under the Fourth and Fourteenth Amendments and the evidence secured incident thereto should hâve been excluded from his trial. Pp. 564-569. (a) The complaint, which did not mention that the sheriff acted on an informer’s tip, and which consisted of no more than the sheriff’s conclusion that the individuals named committed the offense, could not support the independent judgment of a dis-interested magistrate. P. 565. (b) The standards applicable to the factual basis for an ar-resting officer’s probable-cause assessment are no less strict than those applicable to the magistrate’s assessment. Here the arrest-ing officer had no information to corroborate the report that the suspects had committed the crime and the fact that the warrantless arrest was based on a police radio bulletin cannot sup-ply the element of probable cause that the officer who issued the bulletin lacked. Pp. 565-567. 2. Since, notwithstanding petitioner’s constitutional challenge at each stage, respondent made no attempt to show that the magistrate had more information than was presented in the com- WHITELEY v. WARDEN 561 560 Opinion of the Court plaint, he may not attempt to do so now on remand; and the writ must issue unless the State appropriately arranges to retry the petitioner. P. 569. 416 F. 2d 36, reversed and remanded. Harlan, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, White, and Marshall, JJ., joined. Black, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 570. Blackmun, J., filed a dissenting statement, post, p. 575. William J. Knudsen, Jr., argued the cause for petitioner. With him on the briefs was Richard A. Mullens. Jack Speight, Assistant Attorney General of Wyoming, argued the cause for respondent. With him on the brief was James E. Barrett, Attorney General. Mr. Justice Harlan delivered the opinion of the Court. Petitioner Whiteley, in 1965, was convicted in the District Court for the Second Judicial District of the State of Wyoming on charges of breaking and entering and being an habituai criminal.1 Both at his arraignment and at trial Whiteley challenged the constitutionality of the use of evidence seized during a search incident to an ar-rest which he claimed was illégal. The trial court over-ruled petitioner’s motion to suppress, and on appeal the Suprême Court of Wyoming affirmed. Whiteley n. State, 418 P. 2d 164 (1966). This proceeding commenced with a pétition for habeas corpus in the United States District Court for the District of Wyoming, which was denied on November 25, 1968.2 Whiteley v. Wyoming, 293 F. Supp. 381. On appeal, the United States Court of Appeals for 1 He was given concurrent sentences on the breaking and entering charges of one to 10 years and, in conséquence of the recidivist charge, imprisonment for life. 2 Prior to commencing fédéral habeas corpus proceedings, Whiteley had filed a pétition for post-conviction relief pursuant to the Wyoming statutes. No appeal was taken from the déniai of that pétition. 562 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. the Tenth Circuit affirmed. Whiteley v. Meacham, 416 F. 2d 36 (1969). We granted certiorari, limiting the writ to the issue of the constitutionality of the arrest and ensuing search and seizure. 397 U. S. 1062 (1970).3 We reverse the judgment of the Tenth Circuit for the reasons stated herein. I The circumstances surrounding petitioner’s arrest and the incidental search and seizure, as stated by the Wyoming Suprême Court, 418 P. 2d 164, 165-166, are as follows:4 “On November 23, 1964, certain business establishments in Saratoga were broken into, including the Rustic Bar and Shively’s Hardware, the offenses being investigated by the Carbon County Sheriff [Sheriff Ogburn] who, acting on a tip, the next day signed a complaint charging défendant and another with breaking and entering the building identified 3 In his pétition for habeas corpus, Whiteley raised several other issues which had previously been advanced in his state pétition for post-conviction relief, but not in his direct appeal to the Suprême Court of Wyoming. On these other issues, both lower fédéral courts held that failure to appeal the déniai of his state post-conviction pétition constituted nonexhaustion of state remedies. Petitioner sought to raise the exhaustion issue in his présent pétition for certiorari, but, as noted in text, we granted the writ limited to the search and seizure issue decided by the lower fédéral courts. 4 At the outset of the fédéral habeas corpus proceeding now before us, both parties entered into the following stipulation, App. 10: “IT IS HEREBY STIPULATED by and between the parties through their respective counsel that, pursuant to the agreement of the parties in open court on February 16, 1968, both sides will rely exclusively on the record before the trial court in the original case of the State of Wyoming v. Harold Whiteley . . . and any and ail parts of the record on appeal to the State of Wyoming ... in the hearing on the merits of this case before the [U. S. District Court] WHITELEY v. WARDEN 563 560 Opinion of the Court as the Rustic Bar. This complaint was made before a justice of the peace at approximately 11:30 a. m. on the 24th, and a warrant issued. After the investigation, the sheriff put out a state item on the radio to pick up two suspects of the breaking and entering, défendant and another. The message went to the network at Casper and was transmitted over the State, received by the Albany County Sheriffs Office and communicated to the Laramie Police Department, the message giving names and descriptions of the two persons and advising the type of car probably being driven and the amount of money taken, including certain old coins with the dates. Late at night on November 24, a Laramie patrolman, in reliance on the information in the radio item, ar-rested the défendant and his companion. At the time, the patrolman had no warrant for defendant’s arrest nor search warrant. The officer together with a deputy sheriff, who had corne up in the meantime, searched the car and removed a number of items introduced in evidence, including tools and old coins, identified at the trial as taken from Shively’s Hardware. . . Sheriff Ogburn’s complaint, which provided the basis for the arrest warrant issued by the justice of the peace, is as follows: ‘T, C. W. Ogburn, do solemnly swear that on or about the 23 day of November, A. D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, défendants did then and there unlawfully break and enter a locked and sealed building [describing the location and ownership of the building].” App. 28. A state item 881, the bulletin which Sheriff Ogburn 564 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. put out on the radio and which led to petitioner’s arrest and search by the Laramie patrolman, is as foliows: “P & H for B & E Saratoga, early A. M. 11-24-64. Subj. #1. Jack Daley, WMA, 38, D. O. B. 2-29-[26], 5'10", 175, med. build, med. comp., blonde and blue. Tat. left shoulder: ‘Love Me or Leave Me.’ #2. Harold Whitley, WMA, 43, D. O. B. 6-22-21, 5' 11", 180, med. build, fair comp. brown eyes. Tat. on right arm ‘Bird.’ Poss. driving 1953 or 1954 Buick, light green bottom, dark top. Wyo. lie. 2-bal. unknown. Taken: $281.71 in small change, numer-ous old coins ranging from .50 pièces to silver dollars, dated from 1853 to 1908. Warrant issues, will extradite. Spécial attention Denver. . . .” App. 31.5 II The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.6 Spinelli v. United States, 393 U. S. 410 (1969) ; United States v. Ventresca, 380 U. S. 102 (1965); Aguilar v. Texas, 378 U. S. 108 (1964) ; Rugendorf v. United States, 376 U. S. 528 (1964) ; Jones v. United States, 362 U. S. 257 (1960) ; Giordenello v. United States, 357 U. S. 480 (1958). In the instant case—so far as the record stipulated to by the parties 5 A second version of state item 881 is identical in ail relevant respects except that it omits reference to the arrest warrant. See App. 37. 6 In Ker n. Calijornia, 374 U. S. 23 (1963), the Court held that the same probable-cause standards were applicable to fédéral and state warrants under the Fourth and Fourteenth Amendments. In Mapp v. Ohio, 367 U. S. 643 (1961), the Court held the exclusionary rule was applicable to state prosecutions. WHITELEY v. WARDEN 565 560 Opinion of the Court reveals 7—the sole support for the arrest warrant issued at Sheriff Ogburn’s request was the complaint reproduced above.8 That complaint consists of nothing more than the complainant’s conclusion that the individuals named therein perpetrated the offense described in the complaint. The actual basis for Sheriff Ogburn’s conclusion was an informer’s tip, but that fact, as well as every other opérative fact, is omitted from the complaint. Under the cases just cited, that document alone could not support the independent judgment of a disinterested magistrate. The State,9 however, contends that regardless of the sufficiency of the complaint to support the arrest warrant, the Laramie police officer who actually made the 7 See n. 4, supra. 8 The dissent seems to imply that “this record shows” that Sheriff Ogburn received the description of the car contained in the radio bulletin from someone who also informed him that he also saw the car at the scene of the crime. Post, at 570. The record wholly fails to support any such implication. Sheriff Ogburn, who testified on four separate occasions at the trial, see R. 105-112, 187-191, 310-314, 335-337, said nothing of the sort. Only one other witness, Leonard Russell Marion, testified to having given Ogburn any information about the car prior to Whiteley’s arrest; Marion never testified to seeing the car near the scene of the crime. R. 317-322, 329-330. Indeed, it is quite apparent from reading Marion’s testimony that his observations of Whiteley on the day of the robbery took place at his own house. R. 320-321. More importantly, even the dissent apparently concédés that as far as the record in this case reveals, the only information Sheriff Ogburn communicated to the magistrate issuing the warrant was contained in his written complaint reproduced above. Under the cases of this Court, an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas, 378 U. S. 108, 109 n. 1. A con-trary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless. 9 Since this is a fédéral habeas corpus proceeding, the State is technically not a party. 566 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. arrest possessed sufficient factual information to support a finding of probable cause for arrest without a warrant. In support of this proposition, the State argues that a reviewing court should employ less stringent standards for reviewing a police officer’s assessment of probable cause as a préludé to a warrantless arrest than the court would employ in reviewing a magistrate’s assessment as a préludé to issuing an arrest or search warrant.10 That proposition has been consistently rejected by this Court. United States v. Ventresca, 380 U. S., at 105-109; Aguilar v. Texas, 378 U. S., at 11Q-111; Jones v. United States, 362 U. S., at 270-271. And the reason for its rejection is both fundamental and obvious: less stringent standards for reviewing the officer’s discrétion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus the standards applicable to the factual basis supporting the officer’s probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate’s assessment. See McCray v. Illinois, 386 U. S. 300, 304-305 (1967). Applying those standards to the instant case, the information possessed by the Laramie police officer at the time of arrest and search consisted of: (1) the data contained in state bulletin 881, reproduced supra; (2) the knowledge, obtained by personal observation, that two men were driving a car matching the car described in the radio bulletin; (3) the knowledge, possessed by one of the arresting officers, that one of the people in the car was Jack Daley, App. 71 ; (4) the knowledge, acquired 10 “The legal principles relied upon by the state throughout this entire litigated process hâve been based on the premise that a law enforcement officer may make a warrantless arrest if he has requisite probable cause, which can be something less than the requisite probable cause that must be presented to a judicial officer prior to the issuance of an arrest or search warrant.” Brief for Respondent 6. WHITELEY v. WARDEN 567 560 Opinion of the Court by personal observation, that the other individual in the car fitted the description of Whiteley contained in state bulletin 881; and (5) the knowledge, acquired by the officer after stopping Whiteley, that he had given a false name.11 This Court has held that where the initial impetus for an arrest is an informer’s tip, information gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not adequately be supported by the tip alone. Draper n. United States, 358 U. S. 307 (1959). See Spinelli v. United States, 393 U. S. 410 (1969). But the additional information acquired by the arresting officers must in some sense be corroborative of the informer’s tip that the arrestees committed the felony or, as in Draper itself, were in the process of committing the felony. See the opinions of the Court and that of Mr. Justice White concurring in Spinelli v. United States, supra, and p. 423. In the présent case, the very most the additional information tended to establish is that either Sheriff Ogburn, or his informant, or both of them, knew Daley and Whiteley and the kind of car they drove; the record is devoid of any information at any stage of the proceeding from the time of the burglary to the event of the arrest and search that would support either the reliability of the informant or the informant’s conclusion that these men were connected with the crime. Spinelli v. United States, supra; McCray n. Illinois, supra; Aguilar v. Texas, supra. 11 After arresting Whiteley and Daley, the officers searched the car and discovered in the car’s interior the old coins taken in one of the burglaries and described in the radio bulletin. In addition, they found burglar’s tools in the trunk of the car. Of course, the dis-coveries of an illégal search cannot be used to validate the probable-cause judgment upon which the legality of the search dépends. 568 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. The State, however, offers one further argument in support of the legality of the arrest and search: the Laramie police relied on the radio bulletin in making the arrest, and not on Sheriff Ogburn’s unnamed informant. Clearly, it is said, they had probable cause for believing that the passengers in the car were the men described in the bulletin, and, in acting on the bulletin, they reason-ably assumed that whoever authorized the bulletin had probable cause to direct Whiteley’s and Daley’s arrest. To prevent arresting officers from acting on the assumption that fellow officers who call upon them to make an arrest hâve probable cause for believing the arrestees are perpetrators of a crime would, it is argued, unduly hamper law enforcement. We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the con-trary turns out to be true, an otherwise illégal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest. In sum, the complaint on which the warrant issued here clearly could not support a finding of probable cause by the issuing magistrate. The arresting officer was not himself possessed of any factual data tending to cor-roborate the informer’s tip that Daley and Whiteley committed the crime.12 Therefore, petitioner’s arrest vio- 12 The arrest warrant issued at about noon on November 24, 1964. See App. 53. State bulletin 881 was broadcast at 3:03 p. m. that same day. App. 31. It is apparent that Sheriff Ogburn did not himself acquire additional corroborative data possibly supporting a probable-cause arrest after securing the warrant. WHITELEY v. WARDEN 569 560 Opinion of the Court lated his constitutional rights under the Fourth and Fourteenth Amendments; the evidence secured as an incident thereto should hâve been excluded from his trial. Mapp v. Ohio, 367 U. S. 643 (1961). III There remains the question as to the proper disposition of this case. The State urges us to remand so that it will hâve an opportunity to develop a record which might show that the issuing magistrate had factual information additional to that presented in Sheriff Ogburn’s complaint. Brief for Respondent 8-9. Yet the State concédés, as on the record it must, that at every stage in the proceedings below petitioner argued the insuffi-ciency of the warrant as well as the lack of probable cause at the time of the arrest. Brief for Respondent 4. Knowing the basis for petitioner’s constitutional claim, the State chose to try those proceedings on the record it had developed in the state courts. See n. 4, supra. Its sole explanation for this state of affairs is that “the state has felt, based on precedent and logic, that no court would accept the legal reasoning of petitioner.” Brief for Respondent 9. In the circumstances of this case, that justification, as we hâve shown, is untenable. Pursuant to our authority under 28 U. S. C. § 2106 to make such disposition of the case “as may be just under the circumstances,” we reverse the judgment of the Tenth Circuit and remand with directions that the writ is to issue unless the State makes appropriate arrangements to retry petitioner.13 Cf. Giordenello v. United States, 357 U. S., at 487-488. It is so ordered. 13 The State makes a halfhearted attempt to argue that the introduction of the illegally seized evidence was harmless error. The 570 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. Mr. Justice Black, with whom The Chief Justice joins, dissenting. With ail respect to my Brethren who agréé to the judgment and opinion of the Court, I am constrained to say that I believe the decision here is a gross and wholly indefensible miscarriage of justice. For this rea-son it may well be classified as one of those calculated to make many good people believe our Court actually enjoys frustrating justice by unnecessarily turning pro-fessional criminals loose to prey upon society with im-punity. Here is what this record shows: On the night of November 23, 1964, several establishments, including a bar and hardware store were broken into at the village of Saratoga, Wyoming. Some old coins and other items were taken from the hardware store. Some people saw petitioner and his companion that night in or near Saratoga. The next morning the sheriff, who lived at Rawlins, the county seat, another village in sparsely settled Carbon County,1 investigated the burglaries. In addition to viewing the scene of the crimes, the sheriff received a rather detailed description of the car, including a portion of the license plate number, said to hâve been used by the burglars. The sheriff also received a tip that persuaded him that petitioner and his companion, Jack Daley, were probably guilty of one of the burglaries. Upon the strength of this tip, coupled evidence, of course, was damning, to say the least. See n. 10, supra. The only other evidence implicating Whiteley was his accomplice’s testimony. It is clear that the error cannot be said to be harmless under applicable standards. Chapman v. Calijornia, 386 U. S. 18 (1967); Harrington v. Calijornia, 395 U. S. 250 (1969). Contrary to the implications in the dissenting opinion, see post, at 571, no witness at trial other than the accomplice placed Whiteley “near the scene of the crime” on the night of the robbery. 1 The population of Carbon County according to the 1970 census is about 13,000 persons. WHITELEY v. WARDEN 571 560 Black, J., dissenting with his observation of the scene of the crimes and the description of the vehicle, the sheriff personally appeared before the justice of the peace in Rawlins to secure a warrant for the arrest of petitioner and his companion. After securing the warrant he authorized and sent a statewide radio police alert describing the men and their car and calling upon officers to arrest them. The night of No-vember 24, policemen at Laramie, Wyoming, learned that petitioner’s companion, Daley, was in the city. They lo-cated and stopped the car described in the alert, finding it occupied by two men matching the descriptions contained in the message. One of the officers personally recognized Jack Daley. In response to a request for identification, Harold Whiteley gave police a false name. At that point the two men were arrested and the car was searched. Old coins, tools, and other items later identified at trial as having been taken from the burglarized hardware store were found in the trunk and interior of the car. At the trial the seized items were introduced into evidence over petitioner’s objection. In addition, petitioner was identified as having been near the scene of the crime on the night of November 23.2 Jack Daley, petitioner’s companion, told the jury in vivid detail how he and Whiteley jimmied open the back door and burglarized the hardware store.3 Petitioner took the stand 2 Leonard Russell Marion testified at trial that he had seen Whiteley at his home in Saratoga, a town of about 1,000 population, on the day of the robbery. Mr. Marion further testified that he ob-served Whiteley’s car and a portion of the license plate number and gave that information to the sheriff. See R. 317-321, 329-330. The majority fails to recognize that Saratoga is a very small country town and that strangers are most unlikely to move about unnoticed. Something obviously aroused Mr. Marion’s suspicion or else he would not hâve reported the observation of petitioner and his car to the sheriff. 3 Daley’s testimony was not uncorroborated. He testified in detail about the trip from Laramie to Saratoga where the crime was com- 572 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. and presented an alibi defense which was discredited by several witnesses including Jack Daley. Petitioner was convicted and sentenced to 10 years for bur-glary and concurrently to life imprisonment under Wyoming law because of his several prior convictions. It was charged and proved that he had been convicted of three félonies and the record shows that he was 43 year of âge and had already served six times in the penitentiary. The Suprême Court of Wyoming affirmed the conviction September 15, 1966, Whiteley v. State, 418 P. 2d 164, holding that the Laramie officers had a right and duty to arrest the men in their vehicle because they had reasonable ground to believe the men had committed a burglary and that they had the fruits of their crime in the car, citing among other cases Carroll v. United States, 267 U. S. 132 (1925). See also Cham-bers v. Maroney, 399 U. S. 42 (1970). I think it is a distortion of the Fourth Amendment’s meaning to hold that this petitioner’s arrest and the seizure of the goods he had stolen were an “unreasonable arrest” and an “unreasonable seizure.” In deciding this question it should always be remembered that the Fourth Amendment itself does not expressly command that evidence obtained by its infraction should always be ex-cluded from proof. There was certainly probable cause to arrest this man. The store was burglarized. The county was a sparsely settled one in which people knew one another. Petitioner, whose previous life would appear to hâve earned for him the title of professional in the stealing vocation, mitted with stops in Medicine Bow and Elk Mountain. Ernest Hornden testified at trial that Daley and Whiteley were in the Dip Bar in Medicine Bow on the night of November 23, 1964, shortly before the burglary. Another witness, LeRoy Hansen, testified that Whiteley was in Elk Mountain on the day of the burglary, see R. 315-316. WHITELEY v. WARDEN 573 560 Black, J., dissenting was seen around the store with his car the very night of the burglary. Undoubtedly this longtime county sheriff (who appears still to be sheriff) was bound to know petitioner. The tip he received was so persuasive to him that in the performance of his official duty he was willing to assume ail the risk incident to having petitioner ar-rested. It surely cannot be said that when a sheriff, with his prestige and standing, and bond against civil suit, communicates an emergency message to arrest men in cars as burglars, a policeman must stand supinely by while two people denounced as burglars go along their way. Of course these policemen had enough information from the sheriff to hâve probable cause to arrest petitioner. My disagreement with the majority concerning the wisdom and constitutional necessity of a “little trial” before a magistrate or justice of the peace prior to the issuance of a search or arrest warrant is a matter of record. See Aguilar v. Texas, 378 U. S. 108, 116 (1964) (Clark, J., dissenting) ; Spinelli v. United States, 393 U. S. 410, 429 (1969) (Black, J., dissenting). But even ac-cepting those decisions, arguendo, they do not control the disposition of this case which involves the appréhension of criminals in an automobile moving away from the scene of the crime less than 24 hours after its commission. The sheriff’s belief that Whiteley and Daley were guilty, even if it was only a “suspicion” as the majority seems to label it, gave police officers proper grounds to stop petitioner’s car and inquire about its passengers. Terry n. Ohio, 392 U. S. 1 (1968). And once the officers stopped the car and positively identified Jack Daley, they had every reason to believe that Whiteley was lying and at-tempting to escape détection when he reported a false name. At least at that point, if not before, the Laramie police had probable cause to arrest petitioner and Daley. With probable cause to arrest the men, they also had 415-649 0 - 72 - 42 574 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. authority to search the car. Such a search could be justified under either of two théories. Even under Chimel v. California, 395 U. S. 752 (1969), the search of an automobile incident to the arrest of the occupants is permissible. And in this very case, the officers found a fully loaded handgun in the glove compartment. The search was also permissible under the “movable vehicle” exception to the usual requirement for a search warrant. Chambers v. Maroney, 399 U. S. 42 (1970); Carroll v. United States, 267 U. S. 132 (1925). I consider it a trav-esty of justice to turn this man out of jail or give him a new trial six years after he was convicted.4 Fay v. Noia, 372 U. S. 391 (1963), does not, in my judgment, justify what the Court is doing. The trial court passed on this issue of validity of petitioner’s arrest some years ago. Later he asked for relief through state post-conviction procedures on the same ground and his claim was rejected. He has now sought relief through fédéral habeas corpus. After the United States District Court and the Court of Appeals rejected his unlawful-search claim, bringing to 10 the number of state and fédéral judges who hâve consistently and unanimously rejected petitioner’s claim, this Court reverses his judgment of conviction, although petitioner does not, of course, now allégé his innocence. As I said in Kaufman v. United States, 394 U. S. 217, 231 (Black, J., dissenting), the Fay n. Noia remedy should be limited as it 4 The search in this case took place on November 24, 1964. Although I disagreed with Spinelli v. United States, 393 U. S. 410 (1969), I hâve always believed that constitutional decisions should be fully rétroactive in their application. See Linkletter v. Walker, 381 U. S. 618, 640 (1965) (Black, J., dissenting). I am thus glad to see that the majority has apparently decided to apply constitutional decisions retroactively even when they do not affect the “integrity of the fact-finding process,” see id., at 639, and will greatly burden the administration of justice, see Desist v. United States, 394 U. S. 244, 250 (1969). 560 WHITELEY v. WARDEN Blackmun, J., dissenting 575 was by its own facts, and convictions should remain final unless a petitioner seeking habeas corpus allégés that he can currently show he was innocent. There is not even a suspicion here that this hardened criminal is innocent and I would let him stay in confinement to serve his sentence. Mr. Justice Blackmun agréés with much that is said by Mr. Justice Black and also dissents from the opinion and judgment of the Court. 576 OCTOBER TERM, 1970 Syllabus 401 U. S. UNITED TRANSPORTATION UNION v. STATE BAR OF MICHIGAN CERTIORARI TO THE SUPREME COURT OF MICHIGAN No. 434. Argued January 20, 1971—Decided April 5, 1971 Respondent brought this action to enjoin the Brotherhood of Rail-road Trainmen (later merged into petitioner) from engaging in group legal activity for the stated purpose of assisting workers in filing damage suits under the Fédéral Employers’ Liability Act (FELA). Respondent charged that the Union had recommended to its Michigan members selected Chicago attorneys whose fees would not exceed 25% of the amount recovered. The Union’s answer admitted, inter alia, that it had engaged in the practice of protecting its members against large fees and incompetent counsel and that Union members were reimbursed for transporting injured members to the legal counsel’s offices. On the basis of the plead-ings and one witness’ testimony that a large number of Michigan FELA claimants were represented by the Union’s Chicago counsel, the trial court issued an injunction. While that decision was on appeal, this Court decided Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U. S. 1, and the Michigan Suprême Court thereafter remanded the case to the trial court for further considération. Following respondent’s motion for judgment, that court, adopting the decree entered against the Union in Trainmen after this Court’s remand, enjoined the Union from “giving or furnishing legal advice to its members or their families”: furnish-ing attorneys the names of injured members or information relat-ing to their injuries; accepting compensation for the solicitation of legal employment for any lawyer; and from controlling the lawyer’s fees. The Michigan Suprême Court affirmed. Held: The injunction issued against the Union in this case violated its right under the First and Fourteenth Amendments to engage in group activity to enable its members to meet the costs of legal représentation and otherwise to secure meaningful access to the courts, Trainmen, supra; United Mine Workers n. Illinois State Bar Assn., 389 U. S. 217; NAACP v. Button, 371 U. S. 415. Pp. 579-586. 383 Mich. 201, 174 N. W. 2d 811, reversed. Black, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Brennan, and Marshall, JJ., joined. Harlan, UNITED TRANSPORTATION UNION v. MICHIGAN BAR 577 576 Opinion of the Court J., filed an opinion concurring in part and dissenting in part, post, p. 586. White, J., filed an opinion concurring in part and dissenting in part, in which Blackmun, J., joined, post, p. 600. Stewart, J., took no part in the decision of the case. John J. Naughton argued the cause and filed a brief for petitioner. A. D. Ruegsegger argued the cause for respondent. With him on the brief were Phillip C. Kelly and Louis Rosenzweig. J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Fédération of Labor and Congress of Industrial Organizations as amicus curiae urging reversai. Mr. Justice Black delivered the opinion of the Court. The Michigan State Bar brought this action in January 1959 to enjoin the members of the Brotherhood of Railroad Trainmen 1 from engaging in activities under-taken for the stated purpose of assisting their fellow workers, their widows and families, to protect themselves from excessive fees at the hands of incompetent attorneys in suits for damages under the Fédéral Employers’ Lia-bility Act.2 The complaint charged, as factors relevant to the cause of action, that the Union recommended selected attorneys to its members and their families, that it secured a commitment from those attorneys that the maximum fee charged would not exceed 25% of the recovery, and that it recommended Chicago lawyers to represent Michigan claimants. The State Bar’s complaint appears to be a plea for court protection of un- 1 On January 1, 1969, after the decree was entered in the court below, the Brotherhood of Railroad Trainmen merged into a newly created union, the United Transportation Union. The successor union is the petitioner in this case. 2 35 Stat. 65, as amended, 45 U. S. C. §§ 51-60. 578 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. limited legal fees. The Union’s answers admitted that it had engaged in the practice of protecting members against large fees and incompetent counsel; that since 1930 it had recommended, with respect to FELA daims, that injured member employées, and their families, con-sult attorneys designated by the Union as “Legal Coun-sel”; that prior to March 1959, it had informed the injured members and their families that the legal counsel would not charge in excess of 25% of any recovery; and that Union représentatives were reimbursed for transporting injured employées, or their families, to the legal counsel offices. The only evidence introduced in this case was the testimony of one employée of the Association of American Railroads in 1961 that from 1953 through 1960 a large number of Michigan FELA claimants were represented by the Union’s designated Chicago legal counsel. Based on this evidence and the Union’s admissions set out above, the state trial court in 1962 issued an order enjoining the Union’s activities on the ground that they violated the state statute making it a misdemeanor to “solicit” damage suits against railroads.3 The Union appealed to the Michigan Suprême Court, but before the case was argued on appeal, this Court handed down its decision in Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U. S. 1 (1964), involving a similar injunction secured by the Virginia State Bar against the Union. We held in that case that the First Amendment guarantees of free speech, pétition, and assembly give 3 Section 750.410, Mich. Comp. Laws (1948), in relevant part provides : “Any person ... or organization of any kind, either incorporated or unincorporated . . . who shall directly or indirectly . . . solicit any person injured as the resuit of an accident ... for the purpose of representing such person in making claim for damages . . . shall be guilty of a misdemeanor . . . .” UNITED TRANSPORTATION UNION v. MICHIGAN BAR 579 576 Opinion of the Court railroad workers the right to cooperate in helping and advising one another in asserting their rights under the FELA. While not deciding every question that possibly could be raised, our opinion left no doubt that workers hâve a right under the First Amendment to act collec-tively to secure good, honest lawyers to assert their daims against railroads. Acknowledging our decision in Trainmen, the Michigan Suprême Court remanded the instant case to the state trial court with permission for amendment of the complaint “to seek, if it be so advised, relief not inconsistent with the Suprême Court’s said opinion.” 374 Mich. 152, 155, 132 N. W. 2d 78, 79. After remand, the State Bar made a motion for further proceedings. That motion was heard on February 5, 1965, at which time the Bar declined to amend its complaint. For reasons not explained in the record, the case lingered in the trial court until May 24, 1968. On that date, after a motion for judgment by the State Bar and arguments on the motion, the trial court adopted Verbatim the injunction entered in the Virginia state courts after our remand in Trainmen. In affirming the trial court decree, the material part of which is set out below,4 the Michigan Suprême Court gave our holding in Trainmen the narrowest possible 4 The decree entered by the Michigan trial court permanently restrained and enjoined the Union: “from giving or furnishing legal advice to its members or their families; from informing any lawyer or lawyers that an accident has been suffered by a member or non-member of the said Brotherhood and furnishing the name and address of such injured or deceased person for the purpose of obtaining legal employment for any lawyer; from stating or suggesting that a recommended lawyer will defray expenses of any kind or make advances for any purpose to such injured persons or their families pending settlement of their claim; from controlling, directly or indirectly, the fees charged or 580 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. reading,5 focusing only on the spécifie literal language of the injunctive provisions challenged in that case rather than the broad range of union activities held to be protected by the First Amendment. Similarly, the Michigan court erroneously restricted our holding in United Mine Workers n. Illinois State Bar Assn., 389 U. S. 217 (1967), to “the operative portion” of the Illinois decree prohibiting any financial connection between the attorney and the Union. The Michigan Suprême Court failed to follow our decisions in Trainmen, United Mine Workers, and NAACP v. Button, 371 U. S. 415 (1963), upholding the First Amendment principle that groups can unité to assert their legal rights as effec-tively and economically as practicable. When applied, as it must be, to the Union’s activities reflected in the record of this case, the First Amendment forbids the restraints imposed by the injunction here under review for the following among other reasons. First. The decree approved by the Michigan Suprême Court enjoins the Union from “giving or furnishing legal advice to its members or their families.” Given its broadest meaning, this provision would bar the Union’s members, officers, agents, or attorneys from giving any kind of advice or counsel to an injured worker or his family concerning his FELA claim. In Trainmen we upheld the commonsense proposition that such activity is protected by the First Amendment. Moreover, the to be charged by any lawyer; from accepting or receiving compensation of any kind, directly or indirectly, for the solicitation of legal employment for any lawyer, whether by way of salary, commission or otherwise; from sharing in any manner in the legal fees of any lawyer or countenancing the splitting of or sharing in such fees with any layman or lay agency; and from sharing in any recovery for personal injury or death by gift, assignment or otherwise.” 5 383 Mich. 201,174 N. W. 2d 811. UNITED TRANSPORTATION UNION v. MICHIGAN BAR 581 576 Opinion of the Court plain meaning of this particular injunctive provision would emphatically deny the right of the Union to employ counsel to represent its members, a right ex-plicitly upheld in United Mine Workers 6 and NAACP N. Button. We cannot accept the restricted interprétation of this provision urged by the State Bar, and accepted by our Brother Harlan, that it only prohibits the Union or its members themselves from “practicing law.” The record is devoid of any evidence or allégation of such conduct on the part of the Union or its members. A decree must relate specifically and exclusively to the pleadings and proof. If not so related, the provision, because of its vagueness, will jeopardize the exercise of protected free-doms. This injunction, like a criminal statute, prohibits conduct under fear of punishment. Therefore, we look at the injunction as we look at a statute, and if upon its face it abridges rights guaranteed by the First Amendment, it should be struck down. Our statement in NAACP v. Button concerning the statute there in question is equally applicable to the injunction now before us: “[W]e cannot assume that, in its subséquent enforcement, ambiguities will be resolved in favor of adéquate protection of First Amendment rights.” 371 U. S., at 438. Second. The decree also enjoins the Union from fur-nishing to any attorney the names of injured members or information relating to their injuries. The investigation of accidents by Union staff for purposes of gathering evidence to assist the injured worker or his family in asserting FELA daims was part of the Union practice 6 The decree overturned in United Mine Workers also enjoined the union from: “Giving legal counsel and advice.” 389 U. S., at 218 n. 1. It was conceded in that case that the provision was directed at the Union’s employment of an attorney. 582 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. upheld in Trainmen. 377 U. S., at 4 n. 8. It would seem at least a little strange now to hold that the Union cannot communicate that information to the injured member’s attorney.7 Third. A provision of the decree enjoins the members of the Union from “accepting or receiving compensation of any kind, directly or indirectly, for the solicitation of legal employment for any lawyer, whether by way of salary, commission or otherwise.” The Union conceded that prior to 1959, Union représentatives were reim-bursed for their actual time spent and out-of-pocket expenses incurred in bringing injured members or their families to the offices of the legal counsel. Since the members of a union hâve a First Amendment right to help and advise each other in securing effective legal représentation, there can be no doubt that transportation of injured members to an attorney’s office is within the scope of that protected activity. To the extent that 7 Our Brother Harlan suggests that the injured member should be free to direct the collected information to whatever lawyer he chooses, rather than for the Union to give it to the Union’s recommended legal counsel. However, the injunction prohibits the Union from furnishing the information to “any lawyer,” apparently including both recommended and nonrecommended counsel alike. The injunction would prohibit the injured member’s attorney, regard-less of whether or not he was recommended by the Union, from communicating with the Union’s représentative who investigated the accident, is familiar with the facts, and, other than the injured member himself, is probably the person most qualified to answer the attorney’s questions and assist in préparation of the claim. To satisfy the Michigan court’s notion that direct communication between the Union and the member’s attorney is somehow unlawful, it seems our Brother Harlan would restrict the Union’s efforts, which we expressly approved in Trainmen, of assisting the injured member in preparing his case for trial, to a written accident report filed with the injured member. UNITED TRANSPORTATION UNION v. MICHIGAN BAR 583 576 Opinion of the Court the injunction prohibits this practice, it is invalid under Trainmen, United Mine Workers, and NAACP v. Button. Fowrth. Our Brothers Harlan and White apparently accept the State Bar contention that the provision pro-hibiting compensation to Union représentatives for solici-tation refers to compensation paid by the attorney rather than the Union. And so interpreted, it suppléments the two provisions which prohibit the Union from sharing in legal fees received by the recommended counsel. There is no basis for this restraint. Such activity is not even suggested in the complaint. There is not a line of evidence concerning such practice in the record in this case. If there is any such suggestion, it is in records in other cases involving other parties in other courts, records upon which we believe our Brother Harlan erroneously seeks to rely. In fact, the explanation for the appearance of the provisions in this decree appears to be the Michigan court’s Verbatim adoption of a Virginia injunction issued in a different case on different pleadings relating to different facts. Decrees between litigants should not rest on any such unsupportable basis as this. Our Brother Harlan appears to concédé that the State Bar has neither alleged nor proved that the Union has engaged in the past, is presently engaging, or plans to engage, in the sharing of legal fees. Nonetheless, he suggests that the injunction against such conduct is justified in order to remove any “temptation” for the Union to participate in such activities. We cannot accept this novel concept of equity jurisdiction that would open the courts to claims for injunctions against “temptation,” and would deem potential “temptation” to be a sufficient basis for the issuance of an injunction. In-deed, it would appear that jurisdiction over “temptation” has heretofore been reserved to the churches. 584 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. An injunction can issue only after the plaintiff has established that the conduct sought to be enjoined is illégal and that the défendant, if not enjoined, will engage in such conduct. In Hitchman Coal & Coke Co. n. Mitchell, 245 U. S. 229, 262 (1917), this Court struck the portions of a decree enjoining a union from picketing and physical violence because there was no evidence that either of these forms of interférence was threatened.8 Likewise in the présent case, with respect to the prohibition against sharing legal fees, the State Bar simply has made no showing that such conduct was threatened. Indeed, it has made no showing at ail. Therefore, that provision of the decree, to use an often quoted slogan, would appear to be not only unjustified, but also “arbi-trary and capricious.” Fifth. Finally, the challenged decree bars the Union from controlling, directly or indirectly, the fees charged by any lawyer. The complaint alleged that the Union sought to protect its members from excessive legal fees by securing an agreement from the counsel it recom-mends that the fee will not exceed 25% of the recovery, and that the percentage will include ail expenses inci-dental to investigation and litigation. The Union in its answer admitted that prior to 1959 it secured such agree-ments for the protection of its members. United Mine Workers upheld the right of workers to act collectively to obtain affordable and effective legal représentation. One of the abuses sought to be reme-died by the Mine Workers’ plan was the situation pursuant to which members “were required to pay forty or fifty per cent of the amounts recovered in damage suits, for attorney fees.” 389 U. S., at 219. The Mine 8 Mr. Justice Brandeis dissented on the ground that this principle should hâve been applied to strike the other provisions of the injunction as well. 245 U. S., at 263 (Brandeis, J., dissenting). UNITED TRANSPORTATION UNION v. MICHIGAN BAR 585 576 Opinion of the Court Workers dealt with the problem by employing an attorney on a salary basis, thereby providing free legal représentation for its members in asserting their daims before the state workmen’s compensation board. The Union in the instant case sought to protect its members against the same abuse by limiting the fee charged by recom-mended attorneys. It is hard to believe that a court of justice would deny a cooperative union of workers the right to protect its injured members, and their widows and children, from the injustice of excessive fees at the hands of inadéquate counsel. Indeed, the Michigan court was foreclosed from so doing by our decision in United Mine Workers.9 In the context of this case we deal with a cooperative union of workers seeking to assist its members in efïec-tively asserting daims under the FELA. But the prin-ciple here involved cannot be limited to the facts of this case. At issue is the basic right to group legal action, a right first asserted in this Court by an association of Negroes seeking the protection of freedoms guaranteed by the Constitution. The common thread running through our decisions in N A AC P v. Button, Trainmen, and United Mine Workers is that collective activity un-dertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment. However, that right would be a hollow promise if courts could deny associations of workers or 9 The injunction also bars the Union “from stating or suggesting that a recommended lawyer will defray expenses of any kind or make advances for any purpose to such injured persons or their families pending settlement of their claim.” The only allégation in the complaint possibly relating to this injunctive provision is that the Union représentatives informed the injured members that the 25% fee included ail expenses. This provision of the injunction, therefore, is invalid for the same reasons that the provision limiting fees is invalid. 586 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. others the means of enabling their members to meet the costs of legal représentation. That was the holding in United Mine Workers, Trainmen, and N A AC P v. Button. The injunction in the présent case cannot stand in the face of these prior decisions. Reversed. Mr. Justice Stewart took no part in the decision of this case. Mr. Justice Harlan, concurring in part and dissenting in part. The Court’s conclusions with respect to the issues presented by the case at bar are, in my view, flawed by the absence of any examination of the relationship between this case and the substantially contemporaneous proceedings in Illinois and Virginia against the same union with respect to the same charges of unprofessional conduct in the Brotherhood’s “Legal Aid Department.” I The history of the establishment of the Legal Aid Department and the early attacks upon it by state and local bar associations, with the assistance and encouragement of the Association of American Railroads, has been fully recounted elsewhere. See Bodle, Group Legal Services: The Case for BRT, 12 U. C. L. A. L. Rev. 306, 307-317 (1965) ; Note, 50 Cornell L. Q. 344 (1965). The most significant point in this history, for présent purposes, came in the late 1950’s. With disciplinary proceedings pending against its Régional Counsel in Chicago,1 the Brotherhood counterattacked by moving in the Suprême Court of Illinois for a déclaration that the Brotherhood’s plan was both legal and compatible with the minimum 1 The Chicago Régional Counsel had jurisdiction over the lower peninsula of Michigan, where this lawsuit was brought. App. 14. UNITED TRANSPORTATION UNION v. MICHIGAN BAR 587 576 Opinion of Harlan, J. standards of professional conduct. After hearings before a spécial commissioner, the Illinois court found that the basic facts with respect to the operation of the Legal Aid Department were not seriously disputed: “As it presently opérâtes, the legal aid department of the Brotherhood maintains a central office in Cleveland, Ohio, at the national headquarters of the Brotherhood. In that office it has a staff consisting of a chief clerk, a research analyst, three stenogra-phers and a file clerk. It also has a number of régional investigators. The Cleveland office serves as a clearing house which receives reports from ail Brotherhood Lodges of instances in which members hâve been injured or killed in railroad accidents. It notifies the appropriate régional investigator and régional counsel of ail accidents. “By agreement with the Brotherhood the attorneys who are designated as régional counsel charge a fee of twenty-five per cent of the amount re-covered in each case, whether recovery is by settlement or by judgment. Régional counsel hâve also agreed to and do pay ail court costs, investigation costs, costs of doctors’ examinations, expert witness fees, transcript costs and the cost of printing briefs on appeal. They also pay the total cost of operat-ing the legal aid department of the union [including the department’s ratable share of the expenses of the Brotherhood’s conventions]. Ail expenses of the legal aid department are apportioned among the sixteen régional counsel in the ratio that their respective gross fees bear to the total gross recoveries throughout the country. . . . “The Brotherhood constitution requires that each local lodge appoint someone whose duty it is to fill out an accident report whenever a member is in- 588 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. jured, and also to make contact with the injured man, or the relatives of a man who is killed, and make it known that legal advice will be given free of charge by the régional counsel. He also makes known the availability of régional counsel to handle the claim and any ensuing litigation for a total charge of twenty-five per cent of the amount re-covered by settlement or by litigation. The twenty-five per cent includes ail expenses of investigation and litigation. “The lodge member who investigates the occurrence and makes contact with the injured man rec-ommends and urges that régional counsel be con-sulted and employed. These men carry blank copies of contracts employing the régional counsel’s firm as attorneys. The régional investigators employed by the legal aid department also carry these contracts. If a signed contract is not obtained by an investigator in the field, an investigator often brings the interested parties to the office of the régional counsel in Chicago. The injured man may be ac-companied by his wife, and if the interested party is a widow, the wife of the investigator also makes the trip. The expenses of these trips are paid im-mediately by régional counsel. The lodge member who investigates and urges the employment of régional counsel is also compensated by régional counsel at his regular hourly wage rate for time spent in investigating the case and in making the trip to Chicago. These amounts are paid whether or not the régional counsel is retained, and regard-less of the ultimate outcome. In addition [the régional counsel in Chicago] testified, ‘There are many times when one of the boys will bring in a case, and taking care of the investigation, etc., they are UNITED TRANSPORTATION UNION v. MICHIGAN BAR 589 576 Opinion of Harlan, J. given a gratuity of $100 or $150.’ ” In re Brotherhood oj Railroad Trainmen, 13 111. 2d 391, 392-395, 150 N. E. 2d 163, 165-166 (1958). On the basis of the facts thus found, the court laid down the following guidelines to indicate to the Brotherhood what it could and could not do in connection with Personal injury and wrongful death daims with respect to its members: “We are of the opinion that the Brotherhood may properly maintain a staff to investigate injuries to its members. It may so conduct those investigations that their results are of maximum value to its members in prosecuting their individual daims, and it may make the reports of those investigations available to the injured man or his survivors. Such investigations can be financed directly and without undue burden by the 218,000 members of the Brotherhood. “The Brotherhood may also make known to its members generally, and to injured members and their survivors in particular, first, the advisability of obtaining legal ad vice before making a settlement and second, the names of attorneys who, in its opinion, hâve the capacity to handle such daims suc-cessfully. Its employées, however, may not carry contracts for the employment of any lawyer, or photostats of settlement checks. No financial connection of any kind between the Brotherhood and any lawyer is permissible. No lawyer can properly pay any amount whatsoever to the Brotherhood or any of its departments, officers or members as compensation, reimbursement of expenses or gratuity in connection with the procurement of a case. Nor can the Brotherhood fix the fees to be charged for services to its members. The relationship of the 415-649 0 - 72 - 43 590 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. attorney to his client must remain an individual and a personal one. “The course thus outlined, if adopted, will make it possible for the Brotherhood to achieve its legitimate objectives without tearing down the standards of the legal profession.” Id., at 397-398, 150 N. E. 2d, at 167-168. The court gave the Brotherhood over a year, until July 1, 1959, to bring itself into compliance with these standards. Id., at 399, 150 N. E. 2d, at 168. The decree thus rendered appeared to satisfy both the Brotherhood and the Bar. See Note, 50 Cornell L. Q. 344, 348 and n. 32 (1965) ; Bodle, Group Legal Services: The Case for BRT, 12 U. C. L. A. L. Rev. 306, 317 (1965). By letter dated March 16, 1959, the president of the Brotherhood directed ail legal counsel “to live up to said opinion in its entirety” on pain of being removed from office and reported to the local bar association. The letter also announced that “[t]he Brotherhood will finance its Legal Aid Department, and will investigate accidents so that it will be acquainted with the cause of said accidents, and by so doing will be able to remedy any violation of the Fédéral Employers’ Liability Act and the Safety Appliance Act. The resuit of such investigation shall be made available only to the injured person.” App. 16-17. The opinion of the Illinois court and the letter of the BRT president directing compliance there-with became the basis for consent judgments in Nebraska,2 Missouri,3 and several other States.4 2 State ex rel. Beck v. Lush, 170 Neb. 376, 103 N. W. 2d 136 (1960). 3 Hulse v. Brotherhood oj Railroad Trainmen, 340 S. W. 2d 404 (Mo. 1960). 4 Initially it appeared that a consent decree might be entered in the Michigan proceedings, but this possibility never eventuated. App. 30-31. UNITED TRANSPORTATION UNION v. MICHIGAN BAR 591 576 Opinion of Harlan, J. The Virginia Bar, however, was not content with the anti-solicitation measures ordered by the Illinois court,5 and it pressed for and obtained a more sweeping decree. That decree, as originally entered, restrained the Brotherhood “[1] from giving or furnishing legal advice to its members or their families; [2] from holding out lawyers selected by it as the only approved lawyers to aid the members or their families; [3] from in-forming any lawyer that an accident has occurred and furnishing the name and address of an injured or deceased member for the purpose of obtaining legal employment for such lawyer ; [4] or in any other manner soliciting or encouraging such legal employment of the selected lawyers; [5] from stating or suggesting that such selected lawyers will defray ex-penses and make advances to clients pending seulement of daims; [6] from controlling, directly or indirectly, fees charged or to be charged by any lawyer; [7] from making compensation for the solicita-tion of legal employment for any lawyer, whether by way of salary, commission or otherwise; [8] from in any manner sharing in the legal fees of any lawyer, or countenancing the splitting of such fees with any layman or lay agency; [9] and from doing any act or combination of acts, and from formulating and putting into practice any plan, pattern or design, the resuit of which is to channel legal employment to any particular lawyer or group of lawyers; [10] and, in general, from violating the laws govern- 5 See the testimony of petitioner’s president during pretrial proceedings in the Virginia case that “[i]f thought for a moment” that a consent decree along the lines of the Illinois opinion would be acceptable “we would make it effective tomorrow.” App. 91, Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1 (1964). 592 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. ing the practice of law in the Commonwealth of Virginia.” Brotherhood of Railroad Trainmen v. Commonwealth ex rel. Virginia State Bar, 207 Va. 182, 184 n. 1, 149 S. E. 2d 265, 266-267, n. 1 (1966) (numbers hâve been inserted for convenient reference). The Brotherhood sought and obtained review by this Court, limiting its attack to the provisions numbered (2), (4), and (9) above. See Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, SU U. S. 1, 4-5 (1964). This was apparently the resuit of a tacti-cal decision, for it enabled the Brotherhood to argue that it had acquiesced in the restraints imposed on its activities by the Illinois Suprême Court, which that court had held were adéquate to protect the ethics of the legal profession and the public interest.6 The Brotherhood therefore could take the position that it contested the Virginia decree only because “the [Virginia] Bar sought a more restrictive injunction than the Illinois opinion suggested.” Reply Brief 29, Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, No. 34, O. T. 1963. This Court accepted the Brotherhood’s contentions and reversed. On remand, the Virginia courts deleted the 6 The Court acknowledged this limitation on the Brotherhood’s contentions : “Certain other provisions of the decree enjoin the Brotherhood from sharing counsel fees with lawyers whom it recommended and from countenancing the sharing of fees by its régional investigators. The Brotherhood déniés that it has engaged in such practices since 1959, in compliance with a decree of the Suprême Court of Illinois. See In re Brotherhood of Railroad Trainmen, 13 111. 2d 391, 150 N. E. 2d 163. Since the Brotherhood is not objecting to the other provisions of the decree except insofar as they might later be construed as barring the Brotherhood from helping injured workers or their families by recommending that they not settle without a lawyer and by recommending certain lawyers selected by the Brotherhood, it is only to that extent that we pass upon the validity of the other provisions.” 377 U. S., at 5 n. 9. UNITED TRANSPORTATION UNION v. MICHIGAN BAR 593 576 Opinion of Harlan, J. provisions struck down by this Court, replaced provision (10) with a prohibition on “sharing in any recovery for Personal in jury or death by gift, assignment or otherwise,” altered the wording of the remaining provisions in minor respects, and upheld the modified decree as consistent with this Court’s mandate. 207 Va. 182, 149 S. E. 2d 265 (1966). The Brotherhood did not seek review of this decision, and it became final in due course. II Given this background, with which counsel below and the trial judge were generally familiar, the proceedings now under review appear in a substantially different posture. The State Bar’s complaint charged unlawful solicitation of business. The Brotherhood’s answer, after admitting the charges in some respects and denying them in others, set up the Illinois Suprême Court opinion as an affirmative defense, noting that the Michigan State Bar had been aware of that proceeding and had assisted in it, although it was not formally a party. The answer observed that the Illinois court had declared certain features of the Brotherhood’s activities lawful and other features unlawful and directed the discontinuance of the latter. The answer then averred that after the filing of the Michigan complaint the Brotherhood had brought itself into compliance with the Illinois opinion. The answer quoted the above-mentioned letter from the Brotherhood’s president as proof. On this basis, the Brotherhood contended that the conduct complained of either was permissible or had terminated, so that the bill should be dismissed for want of equity and for moot-ness. App. 15-17. In its reply the State Bar specifically relied on the Brotherhood’s admissions in the Illinois proceedings and the findings of the Illinois court as working an estoppel of the défendants with respect to at least some of the matters 594 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. there in issue. App. 20-24.7 However, the reply leaves unclear just what the Bar considered to be involved in the Michigan lawsuit. It described the Michigan Bar’s cause of action as both broader and narrower than the Illinois lawsuit. App. 23-24. The next pleading filed, a “Statement of Claim,” did little to clarify matters. It referred only to the Brotherhood’s scheme of solicita-tion of legal business, but included allégations that as part of the scheme régional counsel made payments to the Brotherhood and to régional investigators and also contributed to the financial support of clients during the pendency of litigation. App. 29. The trial judge apparently sought to clear up the confusion as to just what was in issue by including in the pretrial summary a provision that “ [i] n the event there is not a consent decree, défendants hâve been requested to advise what issue in Michigan is different than in the other states where consent decrees hâve entered.” App. 30. There is nothing in the record to indicate that the défendants responded to this request in a way designed to limit the issues to solicitation. After the initial hearing in this case the trial judge entered a decree that inter alia prohibited the Brotherhood from “[e]ngaging in any activity, conduct or en-deavor condemned by the Suprême Court of Illinois in In re Brotherhood of Railroad Trainmen.” App. 117. In this connection he observed that “although certain spécifie activities and conduct as contained in the Illinois decision were not specifically pleaded in the instant suit, neverthe-less, by the défendants’ answer, they hâve been indirectly injected into this litigation and should be covered by the Court’s order.” App. 112. Inasmuch as the activi- 7 The reply also referred in passing to actions in courts of other States where the Brotherhood has been condemned for engaging in “the same or similar practices as those at issue in this cause.” App. 24. UNITED TRANSPORTATION UNION v. MICHIGAN BAR 595 576 Opinion of Harlan, J. ties referred to, see supra, at 587-589, were directly related to the solicitation charged in the State Bar’s complaint, I consider this decision by the judge to be entirely justifiable. While it is unfortunate that the record is as stale as it is, there is ample evidence to indicate that the Brotherhood’s conduct, at least as of the time the bill of complaint was filed, was of such a character as to call for the decree before us. The Brotherhood, despite its repeated allégations that the objectionable features of this conduct ceased in April 1959, failed to introduce any proof to that effect during the evidentiary hearing in 1961. In the 1965 and 1968 proceedings on remand from the Michigan Suprême Court, the Brotherhood did not request a reopening of the record, or even assert that there had been any significant change in factual circum-stances since the original proceedings. Moreover, Michigan law provides for modification of a continuing injunction upon a proper showing of changed circum-stances. See First Protestant Rejormed Church v. De-Wolf, 358 Mich. 489, 495, 100 N. W. 2d 254, 257 (1960) (dictum), citing United States v. Swift de Co., 286 U. S. 106, 114 (1932). With matters in this posture, I am content to pass on the validity of the decree despite the state of the record. III I agréé that, in light of this Court’s recent decisions, one portion of the Michigan decree—that prohibiting the union from controlling the fees charged by attorneys— cannot stand. In United Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967), the Court held that as a matter of fédéral constitutional law a labor union is entitled to engage an attorney to represent its members in matters of collective interest, free of direct financial charge to them. While I believed then and still believe that this was an unsound piece of constitutional adjudi 596 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. cation, I am unable to distinguish the facts of Mine Workers from those in the case at bar, where a union agreed with attorneys as to the maximum fee to be charged its members in matters of collective interest. Despite the Brotherhood’s prior acquiescence in the de-crees in Virginia and other States, I find the unforesee-able change in the law wrought by the Mine Workers decision sufficient to justify relieving it from the conséquences of taking that position. See Restatement of Judgments § 70 (1942); IB J. Moore, Fédéral Practice 0.448 (1965). I therefore concur in the Court’s vacat-ing this portion of the Michigan decree. In ail other respects I think the decree is consistent with our past decisions and otherwise valid. The first portion of that decree prohibits the Brotherhood from “giving or furnishing legal ad vice to its members or their families.” I do not understand that the Court’s “commonsense” approach to the First Amendment extends to the point that laymen are constitution-ally entitled to give legal advice to other laymen. I think it plain that the provision was intended to prohibit only such conduct. It is manifestly based on the Virginia decree, where the corresponding provision was supported by the chancellor’s finding that “[i]n furtherance of the plan the défendant Brotherhood has advised, and continues to advise, its members and the families of de-ceased members with respect to the legal aspects of their daims.” 207 Va., at 183 n. 1, 149 S. E. 2d, at 266 n. 1. The provision is also related to the prohibition in the 1962 Michigan decree against “[t]elling any person or his représentatives that said person has a cause of action, the amount he is entitled to recover, where suit should be filed, or doing any other act or thing which constitutes the practice of law within the State of Michigan.” App. 117. I therefore can only consider fanciful the Court’s suggestion that the “plain meaning” of this prohibition “would UNITED TRANSPORTATION UNION v. MICHIGAN BAR 597 576 Opinion of Harlan, J. emphatically deny the right of the Union to employ counsel to represent its members.” Ante, at 581. In any event, if there is any ambiguity in the decree the appropriate course is to clarify it, not to strike it down. The second provision of the decree, prohibiting the Brotherhood from furnishing attorneys with information about accidents and the names and addresses of in-jured workers, orders it to refrain from conduct that it averred but did not prove had been terminated. Nothing in our prior decisions approves the solicitation of business by lawyers except insofar as the solicitation may be corrélative to the rights of the clients. See Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S., at 8. There is no reason in terms of First Amendment interests why the Brotherhood should not be obliged to give the results of its investigations to the injured person to take to whatever lawyer he chooses rather than for the Brotherhood to give it to the lawyer it prefers. The provision is plainly appropriate as a means of ensuring that the injured work-man has a truly free choice. In effect this provision of the decree is designed to fend against “ambulance chas-ing,” an activity that I can hardly suppose the Court thinks is protected by the First Amendment. Another provision of the decree prohibits the Brotherhood and its members from “stating or suggesting that a recommended lawyer will defray expenses of any kind or make advances for any purpose to such injured persons or their families pending settlement of their claim.” I think it a close question whether the conduct thus proscribed is protected under this Court’s opinion in Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, supra. As petitioner admits, while it is not generally improper for an attorney to make advances to clients, it is considered improper for him to use the fact that he makes them as a drawing card 598 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. in an effort to secure professional employment. At the same time, there is no contention made that the représentation thus proscribed is inaccurate, and misap-prehension on this score may well be the determinative factor in an injured man’s decision not to seek legal advice in connection with his claim. On balance, I con-clude that the equities do not call for relieving petitioner of its considered decision to acquiesce in this portion of the Virginia decree and the corresponding portions of consent decrees entered in other States. The remaining provisions of the decree prohibit the Brotherhood from sharing in legal fees or recoveries, and prohibit the members from accepting compensation for solicitation of business for a lawyer. These provisions are entirely appropriate to remove any temptation for the représentatives of the Brotherhood to overbear the injured man’s choice of legal représentation. They prohibit conduct which has long been considered unethical, and which in no significant way advances the interests that the Court’s prior decisions in this field sought to protect. I see no basis whatever for striking down these provisions of the decree.8 8 The Brotherhood explicitly admitted in its answer that its members had in the past received compensation from régional counsel for services in furnishing clients, App. 17, and the opinion of the Illinois Suprême Court, on which the Brotherhood relied, detailed the manner in which régional counsel were required to support the Brotherhood’s Legal Aid Department. See supra, at 587. This scheme was the end product of an évolution from more direct forms of fee splitting, a process described in Hulse v. Brotherhood of Railroad Trainmen, 340 S. W. 2d 404, 408-409 (Mo. 1960). The court below, having found the evil in a matured form, was entitled to proscribe as well the straightforward manifestation in which it had begun. Moreover, it is well settled that a court of equity, like an administrative agency, “cannot be required to confine its road block to the narrow lane the transgresser has traveled; it must be allowed effectively to close ail roads to the prohibited goal, so that its order may not be by-passed with impunity.” FTC v. Ruberoid UNITED TRANSPORTATION UNION v. MICHIGAN BAR 599 576 Opinion of Harlan, J. For these reasons I would sustain the judgment of the Michigan Suprême Court, with the exception already noted for the prohibition on controlling the fees charged by any lawyer. However, it is appropriate for me to make a few general remarks in closing. I share my Brothers’ concern with the problems of providing mean-ingful access to competent legal advice for persons in the middle and lower économie strata of our society. This is a matter of public concern deserving our best efforts at resolution, a task that the organized bar may be thought to hâve been too slow in recognizing. Nor do I condone, any more than my Brethren, the nefarious practices that called forth the Brotherhood’s plan before us today. But the issue presented for decision is not the de-sirability of group legal services, or the ways in which the traditional concepts of professional ethics should be modified to take account of the changes in social structure and social needs since the 19th century. The issue, rather, is the scope left by the Fédéral Constitution for state action in the régulation of the practice of law. De-spite the First Amendment implications of déniai of access to the courts in other situations, see N A AC P v. Button, 371 U. S. 415, 452-455 (1963) (dissenting opinion), ail that is involved here is a combination of purchasers of services seeking to increase their market power. The relationship to First Amendment interests seems to me remote at best. Cf. Associated Press v. United States, 326 U. S. 1, 19-20 (1945). Recognizing that a majority of my Brethren felt otherwise in Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1 (1964), and United Mine Workers v. Illinois Bar Co., 343 U. S. 470, 473 (1952) (footnote omitted). See, e. g., Local 167 v. United States, 291 U. S. 293 (1934); Ethyl Gasoline Corp. v. United States, 309 U. S. 436 (1940); United States v. National Lead Co., 332 U. S. 319 (1947). 600 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. Assn., 389 U. S. 217 (1967), I accept their conclusion. I would not, however, extend those cases further than is required by their logic. Accordingly, with the one exception noted, I would affirm the judgment below. Mr. Justice White, with whom Mr. Justice Blackmun joins, concurring in part and dissenting in part. The first provision in the decree prohibiting the union from giving or furnishing legal advice to its members or their families is overbroad in light of United Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967), and should be narrowed to prohibit only legal advice by nonlawyers. Also, I agréé with the Court that the portion of the decree forbidding the setting of fees by union-lawyer agreement cannot stand. Otherwise, however, I do not read the decree as being inconsistent with our prior cases and I would not now extend them to set aside this decree in its entirety. UNITED STATES v. FREED 601 Syllabus UNITED STATES v. FREED et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA . No. 345. Argued January 11, 1971—Decided April 5, 1971 In Haynes v. United States, 390 U. S. 85, the Court held invalid under the Self-Incrimination Clause of the Fifth Amendment provisions of the National Firearms Act, which constituted parts of an interrelated statutory scheme for taxing certain classes of firearms primarily used for unlawful purposes, and made the potentially incriminât ing information available to state and other officiais. To eliminate the defects revealed by Haynes, Congress amended the Act so that only a possessor who lawfully makes, manufactures, or imports firearms can and must register them. The transférer must identify himself, describe the firearm, and give the name and address of the transférée, whose application must be supported by fingerprints and a photograph and a law enforcement official’s cer-tificate identifying them as those of the transférée and stating that the weapon is intended for lawful uses. Only after the transferor’s receipt of the approved application form may the firearm transfer be legally made. A transférée does not and cannot register, though possession of an unregistered firearm is illégal. No information or evidence furnished under the Act can be used as evidence against a registrant or applicant “in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence,” and no informa-tion filed is, as a matter of administration, disclosed to other fédéral, local, or state agencies. Appellees, who had been indicted under the amended Act for possessing and conspiring to possess unregistered hand grenades, filed motions to dismiss, which the District Court granted on the ground that the amended Act, like its predecessor, compels self-incrimination and that the indietment contravenes due process requirements by failing to allégé scienter. Appellees also contend that the provisions relating to fingerprints and photographs will cause future incrimination. Held: 1. The revised statutory scheme of the amended Act, which significantly alters the scheme presented in Haynes, does not involve any violation of the Self-Incrimination Clause of the Fifth Amendment. Pp. 605-607. 602 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. 2. The amended Act fully protects a person against incrimination for past or présent violations, and créâtes no substantial haz-ards of future incrimination. P. 606. 3. The amended Act’s prohibition against a person’s “receiv[ing] or possess[ing] a firearm which is not registered to him,” requires no spécifie intent and the absence of such a requirement in this essentially regulatory statute in the area of public safety does not violate due process requirements either as respects the substantive count or the conspiracy count. Pp. 607-610. Reversed. Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, Brennan (as to Part I), Stewart, White, Marshall, and Blackmun, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, post, p. 610. Matthew J. Zinn argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Peter L. Strauss, Béatrice Rosenberg, and Mervyn Hamburg. Luke McKissack argued the cause and filed a brief for appellees. Mr. Justice Douglas delivered the opinion of the Court. Following our decision in Haynes v. United States, 390 U. S. 85, Congress revised the National Firearms Act with the view of eliminating the defects in it which were revealed in Haynes.1 At the time of Haynes “only weapons used principally by persons engaged in unlawful activities would be sub-jected to taxation.” Id., at 87. Under the Act, as amended, ail possessors of firearms as defined in the Act2 1See S. Rep. No. 1501, 90th Cong., 2d Sess., 26, 42, 48, 52; H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 35. 2 26 U. S. C. §5845 (f) (1964 ed., Supp. V) defines “destructive device” to include “grenades” which are involved in the présent case. UNITED STATES v. FREED 603 601 Opinion of the Court are covered, except the Fédéral Government. 26 U. S. C. §5841 (1964 ed., Supp. V). At the time of Haynes any possessor of a weapon in-cluded in the Act was compelled to disclose the fact of his possession by registration at any time he had acquired possession, a provision which we held meant that a possessor must furnish potentially incriminating information which the Fédéral Government made available to state, local, and other fédéral officiais. Id., at 95-100. Under the présent Act3 only possessors who lawfully 3 Title 26 U. S. C. § 5812 (a) (1964 ed., Supp. V) provides: “A firearm shall not be transferred unless (1) the transférer of the firearm has filed with the Secretary or his delegate a written application, in duplicate, for the transfer and registration of the firearm to the transférée on the application form prescribed by the Secretary or his delegate; (2) any tax payable on the transfer is paid as evidenced by the proper stamp affixed to the original application form; (3) the transférée is identified in the application form in such manner as the Secretary or his delegate may by régulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transférer of the firearm is identified in the application form in such manner as the Secretary or his delegate may by régulations prescribe ; (5) the firearm is identified in the application form in such manner as the Secretary or his delegate may by régulations prescribe; and (6) the application form shows that the Secretary or his delegate has approved the transfer and the registration of the firearm to the transférée. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transférée in violation of law.” Title 26 U. S. C. §5812 (b) (1964 ed., Supp. V) provides: “The transférée of a firearm shall not take possession of the firearm unless the Secretary or his delegate has approved the transfer and registration of the firearm to the transférée as required by subsection (a) of this section.” Title 26 U. S. C. §5841 (b) (1964 ed., Supp. V) provides: “Each manufacturer, importer, and maker shall register each firearm he manufactures, imports, or makes. Each firearm transferred shall be registered to the transférée by the transferor.” 604 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. make, manufacture, or import firerams can and must register them; the transférée does not and cannot register. It is, however, unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 4 At the time of Haynes, as already noted, there was a provision for sharing the registration and transfer information with other law enforcement officiais. Id., at 97-100. The revised statute explicitly States that no information or evidence provided in compliance with the registration or transfer provisions of the Act can be used, directly or indirectly, as evidence against the registrant or applicant “in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the com-piling of the records containing the information or evidence.” 5 The scope of the privilège extends, of course, to the hazards of prosecution under state law for the same or similar offenses. See Malloy v. Hogan, 378 U. S. 1; Marchetti n. United States, 390 U. S. 39, 54. And the appellees, apparently fearful that the Act as written does not undertake to bar the use of fédéral filings in state prosecutions, urge that those risks are real in this case. It is said that California statutes6 punish the possession of grenades and that fédéral registration will incriminate appellees under that law. The Solicitor General, however, represents to us that no information filed is as a matter of practice disclosed to any law enforcement authority, except as the fact of nonregistration may be necessary to an investigation or prosecution under the présent Act. The District Court nonetheless granted the motion to dismiss on two grounds: (1) the amended Act, like the 4 26 U. S. C. §5861 (d) (1964 ed., Supp. V). 5 26 U. S. C. § 5848 (1964 ed., Supp. V) ; and see 26 CFR § 179.202. 6 Penal Code § 12303 (1970). UNITED STATES v. FREED 605 601 Opinion of the Court version in Haynes, violâtes the Self-Incrimination Clause of the Fifth Amendment; and (2) the conspiracy “to possess destructive devices” and the possession charged do not allégé the element of scienter. The case is here on direct appeal. 18 U. S. C. § 3731. And see United States v. Spector, 343 U. S. 169; United States v. Nardello, 393 U. S. 286. I We conclude that the amended Act does not violate the Self-Incrimination Clause of the Fifth Amendment which provides that no person “shall be compelled in any criminal case to be a witness against himself.” As noted, a lawful transfer of a firearm may be accomplished only if it is already registered. The transferor—not the transférée—does the registering. The transferor pays the transfer tax and receives a stamp 7 denoting payment which he affixes to the application submitted to the Internai Revenue Service. The transferor must identify himself, describe the firearm to be transferred, and the name and address of the transférée. In addition, the application must be supported by the photograph and fingerprints of the transférée and by a certificate of a local or fédéral law enforcement official that he is satis-fied that the photograph and fingerprints are those of the transférée and that the weapon is intended for lawful uses.8 Only after receipt of the approved application form is it lawful for the transferor to hand the firearm over to the transférée. At that time he is to give the approved application to the transférée.9 As noted, the Solicitor General advises us that the information in the hands of Internai Revenue Service, as a matter of practice, is not available to state or other fédéral authorities 7 26 U. S. C. § 5811 (1964 ed., Supp. V). 8 26 U. S. C. § 5812 (a) (1964 ed, Supp. V); 26 CFR §§ 179.98-179.99. 9 26 CFR § 179.100. 415-649 0 - 72 - 44 606 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. and, as a matter of law, cannot be used as evidence in a criminal proceeding with respect to a prior or concurrent violation of law.10 The transferor—not the transférée—makes any in-criminating statements. True, the transférée, if he wants the firearm, must cooperate to the extent of sup-plying fingerprints and photograph. But the information he supplies makes him the lawful, not the unlawful, pos-sessor of the firearm. Indeed, the only transférées who may lawfully receive a firearm are those who hâve not committed crimes in the past. The argument, however, is that furnishing the photograph and fingerprints will incriminate the transférée in the future. But the claim-ant is not confronted by “substantial and ‘real’ ” but merely “trifling or imaginary hazards of incrimination”— first by reason of the statutory barrier against use in a prosecution for prior or concurrent offenses, and second by reason of the unavailability of the registration data, as a matter of administration, to local, state, and other fédéral agencies. Marchetti n. United States, supra, at 53-54. Cf. Minor n. United States, 396 U. S. 87, 94. Since the state and other fédéral agencies never see the information, he is left in the same position as if he had not given it, but “had claimed his privilège in the absence of a . . . grant of immunity.” Murphy v. Waterfront Comm’n, 378 U. S. 52, 79. This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements re-specting self-incrimination.11 Appellees’ argument assumes the existence of a periphery of the Self-Incrimination Clause which pro- 10 26 U. S. C. § 5848 (1964 ed., Supp. V) ; 26 CFR § 179.202. 11 We do not reach the question of “use immunity” as opposed to “transactional immunity,” cf. Piccirillo v. New York, 400 U. S. 548, but only hold that, under this statutory scheme, the hazards of self-incrimination are not real. UNITED STATES v. FREED 607 601 Opinion of the Court tects a person against incrimination not only against past or présent transgressions but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interprétation. Another argument goes to the question of entrapment. But that is an issue for the trial, not for a motion to dismiss. Il We also conclude that the District Court erred in dis-missing the indictment for absence of an allégation of scienter. The Act requires no spécifie intent or knowledge that the hand grenades were unregistered. It makes it un-lawful for any person “to receive or possess a firearm which is not registered to him.” 12 By the lower court decisions at the time that requirement was written into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, 321 F. 2d 174, 179, and cases cited. The presence of a “vicions will” or mens rea (Moris-sette n. United States, 342 U. S. 246, 251) was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare. Id., at 254. The statutory offense of em-bezzlement, borrowed from the common law where scienter was historically required, was in a different cate-gory.13 Id., at 260-261. “[W]here Congress borrows terms of art in which are accumulated the legal tradition and mean- 12 26 U. S. C. § 5861 (d) (1964 ed., Supp. V). 13 As respects the Morissette case, J. Marshall, Intention—In Law and Society 138 (1968), says: “The défendant wished to take government property from a 608 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ing of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise in-structed.” Id., at 263. At the other extreme is Lambert n. California, 355 U. S. 225, in which a municipal code made it a crime to remain in Los Angeles for more than five days without register-ing if a person had been convicted of a felony. Being in Los Angeles is not per se blameworthy. The mere failure to register, we held, was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the conséquences of his deed.” Id., at 228. The fact that the ordinance was a convenient law enforcement technique did not save it. “Where a person did not know of the duty to register and where there was no proof of the prob-ability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Id., at 229-230. government bombing range, he had the capacity to take it, he had the opportunity, he tried and succeeded in taking it (his wish was fulfilled, his act accomplished). For recovery in a tort action no more would hâve to be shown to establish liability, but the court held that to make his action criminal ‘a felonious intent,’ mens rea, had to be established. This could not be presumed from his actions, which were open, without concealment, and in the belief—according to his statement—that the property had been abandoned. In other words, for the happening to be criminal, the wish had to be to ac-complish something criminal. So in discussing intent we may hâve wishes of two different characters: one giving a basis for civil liability (the wish to take property not one’s own), and another which would support criminal liability as well as civil (taking property with criminal intent).” UNITED STATES v. FREED 609 601 Opinion of the Court In United States n. Dotterweich, 320 U. S. 277, 284, a case dealing with the imposition of a penalty on a cor-porate officer whose firm shipped adulterated and mis-branded drugs in violation of the Food and Drug Act, we approved the penalty “though consciousness of wrong-doing be totally wanting.” The présent case is in the category neither of Lambert nor Morissette, but is doser to Dotterweich. This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act.14 They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U. S. 250, 254, where a défendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a fédéral act. We say with Chief Justice Taft in that case: “It is very évident from a reading of it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure re-corded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his péril whether that which he sells cornes within the inhibition of the statute, 14 We need not décidé whether a criminal conspiracy to do an act “innocent in itself” and not known by the alleged conspirators to be prohibited must be actuated by some corrupt motive other than the intention to do the act which is prohibited and which is the object of the conspiracy. An agreement to acquire hand grenades is hardly an agreement innocent in itself. Therefore what we hâve said of the substantive offense satisfies on these spécial facts the require-ments for a conspiracy. Cf. United States v. Mack, 112 F. 2d 290. 610 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent pur-chasers to danger from the drug, and concluded that the latter was the resuit preferably to be avoided.” Id., at 253-254. Reversed. Mr. Justice Brennan, concurring in the judgment of reversai. I agréé that the amendments to the National Firearms Act, 26 U. S. C. §§ 5841-5872 (1964 ed., Supp. V), do not violate the Fifth Amendment’s privilège against self-incrimination, and join Part I of the opinion of the Court. However, I do not join Part II of the opinion; although I reach the same resuit as the Court on the intent the Government must prove to convict, I do so by another route. I join Part I on my understanding of the Act’s new im-munity provision. 26 U. S. C. § 5848 (1964 ed., Supp. V). The amended registration provisions of the National Firearms Act do not pose any realistic possibility of self-incrimination of the transférée under fédéral law. An effective registration of a covered firearm will render the transferee’s possession of that firearm legal under fédéral law. It is only appellees’ contention that registration or application for registration will incrimi-nate them under California law that raises the Fifth Amendment issue in this case. Specifically, appellees assert that California law outlaws possession of hand grenades and that registration under fédéral law would, therefore, incriminate them under state law. Assuming that appellees correctly interpret California law, I think that the Act’s immunity provision suffices to supplant the UNITED STATES v. FREED 611 601 Brennan, J., concurring in judgment constitutional protection. Section 5848 provides in pertinent part: “No information or evidence obtained from an application . . . shall . . . be used, directly or in-directly, as evidence against that person in a criminal proceeding with respect to a violation of law oc-curring prior to or concurrently with the filing of the application . . . .” In my judgment, this provision would prevent a State from making any use of a fédéral registration or application, or any fruits thereof, in connection with a prosecution under the State’s possession law.1 This would be true even if the State charged a transférée with possession of the firearm on a date after the date the application was filed, because possession is a continuing violation.2 Therefore, for purposes of the State’s possession law, a transferee’s continued possession of a registered firearm would constitute “a violation of law occurring . . . concurrently with the filing of the application.” I agréé with the Court that the Self-Incrimination Clause of the Fifth Amendment does not require that immunity be given as to the use of such information in connection with crimes that the transférée might possi-bly commit in the future with the registered firearm. The only disclosure required under the amended Act is that the transférée has received a firearm and is in possession of it. Thus, in connection with the présent general registration scheme, “[t]he relevant class of activities ‘perme- 1 No question of transactional immunity is raised here since the case involves incrimination under the laws of a jurisdiction different from the one compelling the incriminating information. Piccirillo v. New York, 400 U. S. 548, 552 (Brennan, J., dissenting). 2 The resuit would be the same if a transférée moved from a State where possession was legal to a State where possession was illégal. The time when the possession became illégal cannot affect the continuing nature of the act of possession. 612 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. ated with criminal statutes,’ ” Mackey v. United States, post, at 710 (Brennan, J., concurring in judgment), is limited to the class of activities relating to possession of firearms. Id., at 707—711. Since I read the statute’s immunity provision to provide immunity co-extensive with the privilège in that regard, I find no Fifth Amendment bar to the enforcement of the fédéral statute. The Court’s discussion of the intent the Government must prove to convict appellees of violation of 26 U. S. C. § 5861 (d) (1964 ed., Supp. V) does not dispel the confusion surrounding a difficult, but vitally important, area of the law. This case does not raise questions of “con-sciousness of wrongdoing” or “blâme worthiness.” If the ancient maxim that “ignorance of the law is no excuse” has any residual validity, it indicates that the ordinary intent requirement—mens rea—of the criminal law does not require knowledge that an act is illégal, wrong, or blameworthy. Nor is it possible to décidé this case by a simple process of classifying the statute involved as a “regulatory” or a “public welfare” measure. To convict appellees of possession of unregistered hand grenades, the Government must prove three material éléments: (1) that appellees possessed certain items; (2) that the items possessed were hand grenades; and (3) that the hand grenades were not registered. The Government and the Court agréé that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades. Thus, while the Court does hold that no intent at ail need be proved in regard to one element of the offense—the unregistered status of the grenades—knowledge must still be proved as to the other two éléments. Consequently, the National Firearms Act does not create a crime of strict liability as to ail its éléments. It is no help in deciding what level of intent must be proved as UNITED STATES v. FREED 613 601 Brennan, J., concurring in judgment to the third element to déclaré that the offense falls within the “regulatory” category. Following the analysis of the Model Penal Code,3 I think we must recognize, first, that “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Dennis v. United States, 341 U. S. 494, 500 (1951) (Vinson, C. J., announcing judgment); Smith n. California, 361 U. S. 147, 150 (1959) ; 4 second, that mens rea is not a unitary concept, but may vary as to each element of a crime; and third, that Anglo-American law has de-veloped several identifiable and analytically distinct levels of intent, e. g., négligence, recklessness, knowledge, and purpose.5 To détermine the mental element required for conviction, each material element of the offense must be examined and the détermination made what 3 ALI Model Penal Code § 2.02, Comment 123-132 (Tent. Draft No. 4, 1955). 4 “Still, it is doubtless competent for the [government] to create strict criminal liabilities by defining criminal offenses without any element of scienter—though . . . there is precedent in this Court that this power is not without limitations. See Lambert v. California, 355 U. S. 225.” Smith v. California, 361 U. S. 147, 150 (1959). The situations in which strict liability may be imposed were stated by Judge, now Mr. Justice, Blackmun: “[W]here a fédéral criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adhérence thereto properly ex-pected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent.” Holdridge v. United States, 282 F. 2d 302, 310 (CA8 1960). 5 These different levels of intent are defined in the code. ALI Model Penal Code § 2.02 (Prop. Official Draft 1962). This Court has relied on the code’s définitions. Leary v. United States, 395 U. S. 6, 46 n. 93 (1969); Turner v. United States, 396 U. S. 398, 416 n. 29 (1970). 614 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. level of intent Congress intended the Government to prove, taking into account constitutional considérations, see Screws v. United States, 325 U. S. 91 (1945), as well as the common-law background, if any, of the crime involved. See Morissette v. United States, 342 U. S. 246 (1952). Although the legislative history of the amendments to the National Firearms Act is silent on the level of intent to be proved in connection with each element of the offense, we are not without some guideposts. I begin with the proposition stated in Morissette v. United States, 342 U. S., at 250, that the requirement of mens rea “is no provincial or transient notion. It is as universal and persistent in mature Systems of law as belief in freedom of the human will and a conséquent ability and duty of the normal individual to choose between good and evil.” In regard to the first two éléments of the offense, (1) possession of items that (2) are hand grenades, the general rule in favor of some intent requirement finds confirmation in the case law under the provisions replaced by the présent amendments. The cases held that a conviction of an individual of illégal possession of unregistered firearms had to be supported by proof that his possession was “willing and conscious” and that he knew the items possessed were firearms. E. g., Sipes v. United States, 321 F. 2d 174, 179 (CAS 1963) ; United States v. Decker, 292 F. 2d 89 (CA6 1961). Congress did not disapprove these cases, and we may therefore properly infer that Congress meant that the Government must prove knowledge with regard to the first two éléments of the offense under the amended statute. The third element—the unregistered status of the grenades—présents more difficulty. Proof of intent with regard to this element would require the Government to show that the appellees knew that the grenades were UNITED STATES v. FREED 615 601 Brennan, J., concurring in judgment unregistered or negligently or recklessly failed to ascer-tain whether the weapons were registered. It is true that such a requirement would involve knowledge of law, but it does not involve “consciousness of wrongdoing” in the sense of knowledge that one’s actions were pro-hibited or illégal.6 Rather, the définition of the crime, as written by Congress, requires proof of circumstances that involve a legal element, namely whether the grenades were registered in accordance with fédéral law. The knowledge involved is solely knowledge of the circumstances that the law has defined as material to the offense. The Model Penal Code illustrâtes the distinction : “It should be noted that the general principle that ignorance or mistake of law is no excuse is usually greatly overstated; it has no application when the circumstances made material by the définition of the offense include a legal element. So, for example, it is immaterial in theft, when claim of right is adduced in defense, that the claim involves a legal judgment as to the right of property. It is a defense because knowledge that the property belongs to someone else is a material element of the crime and such knowledge may involve matter of law as well as fact. . . . The law involved is not the law defining the offense; it is some other legal rule that characterizes the attendant circumstances that 6 Proof of some crimes may include a requirement of proof of actual knowledge that the act was prohibited by law, or proof of a purpose to bring about the forbidden resuit. See James v. United States, 366 U. S. 213 (1961); Boyce Motor Lines v. United States, 342 U. S. 337 (1952). United States v. Murdock, 290 U. S. 389 (1933). See generally Note, Counseling Draft Résistance: The Case for a Good Faith Belief Defense, 78 Yale L. J. 1008, 1022-1037 (1969). Cf. Model Penal Code §2.02 (2)(a) (Prop. Official Draft 1962) (définition of “purposely”). 616 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. are material to the offense.” Model Penal Code §2.02, Comment 131 (Tent. Draft No. 4, 1955). Therefore, as with the first two éléments, the question is solely one of congressional intent. And while the question is not an easy one, two factors persuade me that proof of mens rea as to the unregistered status of the grenades is not required. First, as the Court notes, the case law under the provisions replaced by the current law dispensed with proof of intent in connection with this element. Sipes v. United States, supra. Second, the firearms covered by the Act are major weapons such as machineguns and sawed-off shotguns; deceptive weapons such as flashlight guns and fountain pen guns; and major destructive devices such as bombs, grenades, mines, rockets, and large caliber weapons including mortars, antitank guns, and bazookas. Without exception, the likeli-hood of governmental régulation of the distribution of such weapons is so great that anyone must be presumed to be aware of it. In the context of a taxing and registration scheme, I therefore think it reasonable to conclude that Congress dispensed with the requirement of intent in regard to the unregistered status of the weapon, as necessary to effective administration of the statute. INVESTMENT CO. INSTITUEE v. CAMP 617 Syllabus INVESTMENT COMPANY INSTITUEE et al. v. CAMP, COMPTROLLER OF THE CURRENCY, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 61. Argued December 15, 1970—Decided April 5, 1971* Petitioners in No. 61, an association of open-end investment com-panies and several individual such companies, attack (1) portions of the Comptroller of the Currency’s Régulation 9, purporting to authorize banks to operate collective investment funds, as violative of the Glass-Steagall Banking Act of 1933 and (2) the Comp-troller’s approval given First National City Bank to operate a collective investment fund. Petitioner in No. 59 seeks review of a Securities and Exchange Commission (SEC) order exempting that fund from certain provisions of the Investment Company Act of 1940. The District Court concluded in No. 61 that the chal-lenged provisions of Régulation 9 were invalid. The Court of Appeals, after consolidating the cases, held that the Comptroller’s and the SEC’s actions were consonant with the relevant statutes, and affirmed the SEC’s order and reversed the District Court. Held: 1. Petitioners in No. 61 do not lack standing to challenge whether national banks may legally enter a field in compétition with them. Data Processing Service v. Camp, 397 U. S. 150. Pp. 620-621. 2. The operation of a collective investment fund of the kind approved by the Comptroller, that is in direct compétition with the mutual fund industry, involves a bank in the underwriting, issuing, selling, and distributing of securities in violation of §§ 16 and 21 of the Glass-Steagall Act. Pp. 621-639. 136 U. S. App. D. C. 241, 420 F. 2d 83, reversed in No. 61, and vacated in No. 59. Stewart, J., delivered the opinion of the Court, in which Black, Douglas, Brennan, White, and Marshall, JJ., joined. Harlan, *Together with No. 59, National Association of Securities Dealers, Inc. v. Securities and Exchange Commission et al., argued December 14-15, 1970, also on certiorari to the same court. 618 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. J., post, p. 639, and Blackmun, J., post, p. 642, filed dissenting opinions. Burger, C. J., took no part in the considération or decision of these cases. G. Duane Vieth argued the cause for petitioners in No. 61. With him on the briefs were James F. Fitzpatrick, Melvin Spaeth, and Robert Augenblick. Joseph B. Levin argued the cause for petitioner in No. 59. With him on the briefs was Lloyd J. Derrickson. Deputy Solicitor General Friedman argued the cause for respondent Camp, Comptroller of the Currency, in No. 61. With him on the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Richard B. Stone, Alan S. Rosenthal, Leonard Schaitman, and C. Westbrook Murphy. Mr. Friedman, by spécial leave of Court, argued the cause for the United States as amicus curiae urging affirmance in No. 59. With him on the brief were Solicitor General Griswold and Mr. Stone. Archibald. Cox argued the cause for respondent First National City Bank in both cases. With him on the brief was Stephen Ailes. Robert L. Stem filed a brief for Corporate Fiduciaries Association of Chicago as amicus curiae urging affirmance in both cases. Mr. Justice Stewart delivered the opinion of the Court. These companion cases involve a double-barreled as-sault upon the efforts of a national bank to go into the business of operating a mutual investment fund. The petitioners in No. 61 are an association of open-end investment companies and several individual such com-panies. They brought an action in the United States District Court for the District of Columbia, attacking portions of Régulation 9 issued by the Comptroller of the INVESTMENT CO. INSTITUTE v. CAMP 619 617 Opinion of the Court Currency,1 on the ground that this Régulation, in purport-ing to authorize banks to establish and operate collective investment funds, sought to permit activities prohibited to national banks or their affiliâtes by various provisions of the Glass-Steagall Banking Act of 1933, 48 Stat. 162.2 The petitioners also specifically attacked the Comp-troller’s approval of the application of First National City Bank of New York for permission to establish and operate a collective investment fund. In No. 59 the National Association of Securities Dealers filed a pétition in the United States Court of Appeals for the District of Columbia Circuit seeking review of an order of the Securities and Exchange Commission that partially exempted the collective investment fund of First National City Bank of New York from various provisions of the Investment Company Act of 1940.3 In No. 61 the District Court concluded that the challenged provisions of Régulation 9 were invalid under the Glass-Steagall Act.4 The Comptroller and First National City Bank appealed from this decision, and the appeal was Consolidated with the pétition for review in No. 59. The Court of Appeals held that the actions taken by the Securities and Exchange Commission and the Comptroller were fully consonant with the statutes committed to their regulatory supervision. Accordingly, it affirmed the order of the Commission and reversed the judgment of the District Court.5 We granted certiorari to con-sider important questions presented under fédéral regu- *12 CFR Pt. 9 (1970). 2 The provisions of the Glass-Steagall Act are codified in various sections scattered through Title 12 of the United States Code. 3 The exemption was granted in response to an application filed pursuant to § 6 (c) of the Act, 54 Stat. 802, 15 U. S. C. § 80a-6 (c). 4 274 F. Supp. 624. 5136 U. S. App. D. C. 241, 420 F. 2d 83. 620 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. latory statutes.6 For the reasons that follow, we hold Régulation 9 invalid insofar as it authorizes the sale of interests in an investment fund of the type established by First National City Bank pursuant to the Comptroller’s approval. This disposition makes it unnecessary to con-sider the propriety of the action of the Securities and Exchange Commission in affording this fund exemption from certain of the provisions of the Investment Company Act of 1940. I In No. 61 it is urged at the outset that petitioners lack standing to question whether national banks may legally enter a field in compétition with them. This contention is foreclosed by Data Processing Service v. Camp, 397 U. S. 150. There we held that companies that offered data processing services to the general business com-munity had standing to seek judicial review of a ruling by the Comptroller that national banks could make data Processing services available to other banks and to bank customers. We held that data processing companies were sufficiently injured by the compétition that the Comptroller had authorized to create a case or contro-versy. The injury to the petitioners in the instant case is indistinguishable. We also concluded that Congress did not intend “to preclude judicial review of administrative rulings by the Comptroller as to the legitimate scope of activities available to national banks under [the National Bank Act].” 397 U. S., at 157. This is pre-cisely the review that the petitioners hâve sought in this case. Finally, we concluded that Congress had arguably legislated against the compétition that the petitioners sought to challenge, and from which flowed their injury. We noted that whether Congress had indeed prohibited such compétition was a question for the merits. In the 6 397 U. S. 986. INVESTMENT CO. INSTITUTE v. CAMP 621 617 Opinion of the Court discussion that follows in the balance of this opinion we deal with the merits of the petitioners’ contentions and conclude that Congress did legislate against the compétition that the petitioners challenge. There can be no real question, therefore, of the petitioners’ standing in the light of the Data Processing case. See also Arnold Tours v. Camp, 400 U. S. 45. II The issue before us is whether the Comptroller of the Currency may, consistently with the banking laws, au-thorize a national bank to offer its customers the oppor-tunity to invest in a stock fund created and maintained by the bank. Before 1963 national banks were prohibited by administrative régulation from offering this service. The Board of Governors of the Fédéral Reserve System, which until 1962 had regulatory jurisdiction over ail the trust activities of national banks, allowed the collective investment of trust assets only for “the investment of funds held for true fiduciary purposes.” The applicable régulation, Régulation F, specified that “the operation of such Common Trust Funds as investment trusts for other than strictly fiduciary purposes is hereby prohibited.” The Board consistently ruled that it was improper for a bank to use “a Common Trust Fund as an investment trust attracting money seeking investment alone and to embark upon what would be in effect the sale of participations in a Common Trust Fund to the public as invest-ments.” 26 Fed. Reserve Bull. 393 (1940); see also 42 Fed. Reserve Bull. 228 (1956) ; 41 Fed. Reserve Bull. 142 (1955). In 1962 Congress transferred jurisdiction over most of the trust activities of national banks from the Board of Governors of the Fédéral Reserve System to the Comptroller of the Currency, without modifying any provision 415-649 0 - 72 - 45 622 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. of substantive law. Pub. L. 87-722, 76 Stat. 668, 12 U. S. C. § 92a. The Comptroller thereupon solicitée! suggestions for improving the régulations applicable to trust activities. Subsequently, new régulations were proposed which expressly authorized the collective investment of monies delivered to the bank for investment management, so-called managing agency accounts. These proposed régulations were officially promulgated in 1963 with changes not material here.7 In 1965 the First National City Bank of New York submitted for the Comptroller’s approval a plan for the collective investment of managing agency accounts. The Comptroller promptly approved the plan, and it is now in operation. This plan, which départs in some respects from the plan envisaged by the Comptroller’s Régulation, is expected, the briefs tell us, to be a model for other banks which décidé to offer their customers a collective investment service.8 Under the plan the bank customer tenders between $10,000 and $500,000 to the bank, together with an authorization making the bank the customer’s managing agent. The customer’s investment is added to the fund, and a written evidence of participation is issued which expresses in “units of participation” the customer’s pro-portionate interest in fund assets. Units of participation are freely redeemable, and transférable to anyone who has executed a managing agency agreement with the bank. The fund is registered as an investment company under the Investment Company Act of 1940. The bank is 712 CFR §9.18 (a) provides that: “Where not in contravention of local law, funds held by a national bank as fiduciary may be invested collectively : ... (3) In a common trust fund, maintained by the bank exclusively for the collective investment and reinvest-ment of monies contributed thereto by the bank in its capacity as managing agent under a managing agency agreement expressly pro-viding that such monies are received by the bank in trust . . . 8 For example, the investment fund plan as established does not provide that the bank receives the investor’s money in trust. INVESTMENT CO. INSTITUTE v. CAMP 623 617 Opinion of the Court the underwriter of the fund’s units of participation within the meaning of that Act. The fund has filed a registration statement pursuant to the Securities Act of 1933. The fund is supervised by a five-member committee elected annually by the participants pursuant to the Investment Company Act of 1940. The Securities and Exchange Commission has exempted the fund from the Investment Company Act to the extent that a majority of this committee may be affiliated with the bank, and it is expected that a majority always will be officers in the bank’s trust and investment division.9 The actual custody and investment of fund assets is carried out by the bank as investment advisor pursuant to a management agreement. Although the Investment Company Act requires that this management agreement be ap-proved annually by the committee, including a majority of the unaffiliated members, or by the participants, it is expected that the bank will continue to be investment advisor. III Section 16 of the Glass-Steagall Act as amended, 12 U. S. C. § 24, Seventh, provides that the “business of deal-ing in securities and stock [by a national bank] shall be limited to purchasing and selling such securities and stock without recourse, solely upon the order, and for the ac-count of, customers, and in no case for its own ac-count .... Except as hereinafter provided or otherwise permitted by law, nothing herein contained shall authorize the purchase by [a national bank] for its own account of any shares of stock of any corporation.” 10 The peti- 9 The opinion of the Commission and the dissent of Commissioner Budge are unofficially reported at CCH Fed. Sec. L. Rep., 1964-1966 Decisions, 177,332. 10 Section 16, as enacted in 1933, granted no authority to purchase stock for the account of customers and prohibited any purchase of stock by a national bank. The 1935 Amendments to the 624 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. tioners contend that a purchase of stock by a bank’s investment fund is a purchase of stock by a bank for its own account in violation of this section. Section 16 also provides that a national bank “shall not underwrite any issue of securities or stock.” And § 21 of the same Act, 12 U. S. C. § 378 (a), provides that “it shall be unlawful—(1) For any person, firm, corporation, association, business trust, or other similar organization, engaged in the business of issuing, underwriting, sell-ing, or distributing, at Wholesale or retail, or through syndicate participation, stocks, bonds, debentures, notes, or other securities, to engage at the same time to any extent whatever in the business of [deposit banking].” The petitioners contend that the création and operation of an investment fund by a bank which offers to its cus-tomers the opportunity to purchase an interest in the fund’s assets constitutes the issuing, underwriting, selling, or distributing of securities or stocks in violation of these sections. The questions raised by the petitioners are novel and substantial. National banks were granted trust powers in 1913. Fédéral Reserve Act, § 11, 38 Stat. 261. The first common trust fund was organized in 1927, and such funds were expressly authorized by the Fédéral Reserve Board by Régulation F promulgated in 1937. Report on Commingled or Common Trust Funds Admin-istered by Banks and Trust Companies, H. R. Doc. No. 476, 76th Cong., 2d Sess., 4-5 (1939). For at least a génération, therefore, there has been no reason to doubt that a national bank can, consistently with the banking laws, commingle trust funds on the one hand, and act as a managing agent on the other. No provision of the bank- National Bank Act included a provision intended to make it clear that a national bank may buy stock for the account of customers but not for its own account. S. Rep. No. 1007, 74th Cong., Ist Sess., 17; H. R. Rep. No. 742, 74th Cong., Ist Sess., 18. INVESTMENT CO. INSTITUTE v. CAMP 625 617 Opinion of the Court ing law suggests that it is improper for a national bank to pool trust assets, or to act as a managing agent for individual customers, or to purchase stock for the account of its customers. But the union of these powers gives birth to an investment fund whose activities are of a different character. The différences between the investment fund that the Comptroller has authorized and a conventional open-end mutual fund are subtle at best, and it is undisputed that this bank investment fund finds itself in direct compétition with the mutual fund industry. One would suppose that the business of a mutual fund consists of buying stock “for its own account” and of “issuing” and “selling” “stock” or “other securities” evidencing an undivided and redeemable interest in the assets of the fund.11 On their face, §§16 and 21 of the Glass-Steagall Act appear clearly to prohibit this activity by national banks.12 11A mutual fund is an open-end investment company. The Investment Company Act of 1940 defines an investment company as an “issuer” of “any security” which “is or holds itself out as being engaged primarily ... in the business of investing ... in securities . . . .” 15 U. S. C. §§80a-2 (a)(21), 80a-3 (a)(l). An open-end company is one “which is offering for sale or has outstand-ing any redeemable security of which it is the issuer.” 15 U. S. C. § 80a-5 (a) (1). An investment company also includes a “unit investment trust”: an investment company which, among other things, “is organized under a . . . contract of . . . agency . . . and . . . issues only redeemable securities, each of which represents an undivided interest in a unit of specified securities . . . .” 15 U. S. C. § 80a-4 (2). 12 Section 20 of the Act, 12 U. S. C. § 377, prohibits affiliations between banks that are members of the Fédéral Reserve System and organizations “engaged principally in the issue, dotation, underwriting, public sale, or distribution at Wholesale or retail or through syndicate participation of stocks, bonds, debentures, notes, or other securities . . . .” And § 32, 12 U. S. C. § 78, provides that no officer, director, or employée of a bank in the Fédéral Reserve System may serve at the same time as officer, director, or employée of an association primarily engaged in the activity de- 626 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. But we cannot corne lightly to the conclusion that the Comptroller has authorized activity that violâtes the banking laws. It is settled that courts should give great weight to any reasonable construction of a regulatory scribed in § 20. The petitioners contend that if a bank’s invest-ment fund be conceived as an entity distinct from the bank, then its affiliation with the investment fund is in violation of these sections. The Board of Governors has had occasion to consider whether an investment fund of the type operated by First National City Bank involves a violation of § 32 of the Glass-Steagall Act. 12 CFR §218.111 (1970). The Board concluded, based on “general principles that hâve been developed in respect to the application of section 32,” that it would not violate that section for officers of the bank’s trust department to serve at the same time as officers of the investment fund because the fund and the bank “constitute a single entity,” and the fund “would be regarded as nothing more than an arm or department of the bank.” The Board called attention to §21 whose provisions it summarized as forbidding “a securities firm or organization to engage in the business of receiving deposits, subject to certain exceptions.” The Board, however, declined to express a position concerning the applicability of this section because of its policy not to express views as to the meaning of statutes that carry criminal penalties. Nor has the Board expressed its views on the application of any other provision of the banking law to the création and operation of a bank investment fund. We hâve no doubt but that the Board’s construction and application of § 32 is both reasonable and rational. The investment fund service authorized by the Comptroller’s régulation and as provided by the First National City Bank is a service available only to customers of the bank. It is held out as a service provided by the bank, and the investment fund bears the bank’s name. The bank has effective control over the activities of the investment fund. Moreover, there is no danger that to characterize the bank and its fund as a single entity will disserve the purpose of Congress. The limitations that the banking laws place on the activities of national banks are at least as great as the limitations placed on the activities of their affiliâtes. For example, § 32 refers to the “public sale” of stocks or securities while § 21 proscribes the “selling” of stocks or securities. INVESTMENT CO. INSTITUTE v. CAMP 627 617 Opinion of the Court statute adopted by the agency charged with the enforcement of that statute. The Comptroller of the Currency is charged with the enforcement of the banking laws to an extent that warrants the invocation of this principle with respect to his deliberative conclusions as to the meaning of these laws. See First National Bank v. Missouri, 263 U. S. 640, 658. The difficulty here is that the Comptroller adopted no expressly articulated position at the administrative level as to the meaning and impact of the provisions of §§16 and 21 as they affect bank investment funds. The Comptroller promulgated Régulation 9 without opinion or accompanying statement. His subséquent report to Congress did not advert to the prohibitions of the Glass-Steagall Act. Comptroller of the Currency, lOlst Annual Report 14-15 (1963).13 To be sure, counsel for the 13 A law review article written by Comptroller Saxon and Deputy Comptroller Miller in 1965 did take the position that the Glass-Steagall Act is inapplicable to bank common trust funds. Saxon & Miller, Common Trust Funds, 53 Geo. L. J. 994 (1965). But this view was predicated on the argument that when Congress in 1936 provided a tax exemption for common trust funds main-tained by a bank, now 26 U. S. C. § 584, it contemplated the exemption of common trust funds created for strictly investment purposes, and that consequently Congress must hâve assumed that the banking laws, which otherwise appear to proscribe such funds, were not applicable. Id., at 1008-1010. Whatever the merits of this argument, it has no bearing on the instant litigation. It is clear that the collective investment funds authorized by Régulation 9 need not qual-ify for tax exemption under § 584; the First National City Bank Fund does not so qualify. Moreover, the position advanced in the brief filed on behalf of the Comptroller in this litigation is not that the banking laws are inapplicable to bank investment funds, but rather that the création and operation of such funds are consistent with the banking laws. It is noteworthy that the § 584 exemption is available to common trust funds “maintained by a bank . . . exclusively for the collective 628 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Comptroller in the course of this litigation, and specifically in his briefs and oral argument in this Court, has rational-ized the basis of Régulation 9 with great professional compétence. But this is hardly tantamount to an administrative interprétation of §§16 and 21. In Burlington Truck Lines v. United States, 371 U. S. 156, we said, “The courts may not accept appellate counsel’s post hoc rationalizations for agency action .... For the courts to substitute their or counsel’s discrétion for that of the [agency] is incompatible with the orderly functioning of the process of judicial review.” Id., at 168-169. Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands. It is the administrative official and not appellate counsel who possesses the expertise that can enlighten and rationalize the search for the meaning and intent of Congress. Quite obviously the Comptroller should not grant new authority to national banks until he is satisfied that the exercise of this authority will not violate the intent of the bank-ing laws. If he faces such questions only after he has acted, there is substantial danger that the momentum generated by initial approval may seriously impair the enforcement of the banking laws that Congress enacted. investment and reinvestment of moneys contributed thereto by the bank in its capacity as a trustée, executor, administrator, or guard-ian (Emphasis added.) This language, which makes no reference to contributions by the bank in its capacity as managing agent, is identical to that exempting such common trust funds from the Investment Company Act of 1940, 15 U. S. C. § 80a-3 (c)(3). The Securities and Exchange Commission has taken the position that commingled managing agency accounts do not corne within § 80a-3 (c)(3). See Statement of Commissioner Cary, Hearings on Common Trust Funds—Overlapping Responsibility and Conflict in Régulation, before a Subcommittee of the House Committee on Government Operations, 88th Cong., lst Sess., 3 (1963). INVESTMENT CO. INSTITUTE v. CAMP 629 617 Opinion of the Court IV There is no dispute that one of the objectives of the Glass-Steagall Act was to prohibit commercial banks, banks that receive deposits subject to repayment, lend money, discount and negotiate promissory notes and the like, from going into the investment banking business. Many commercial banks were indirectly engaged in the investment banking business when the Act was passed in 1933. Even before the passage of the Act it was generally believed that it was improper for a commercial bank to engage in investment banking directly.14 But in 1908 banks began the practice of establishing security affiliâtes that engaged in, inter alia, the business of floating bond issues and, less frequently, underwriting stock issues.15 The Glass-Steagall Act confirmed that national banks could not engage in investment banking directly, and in addition made affiliation with an organization so engaged illégal. One effect of the Act was to abolish the security affiliâtes of commercial banks.15 It is apparent from the legislative history of the Act why Congress felt that this drastic step was necessary. The failure of the Bank of United States in 1930 was widely attributed to that bank’s activities with respect to its numerous securities affiliâtes.17 Moreover, Con- 14 Hearings Pursuant to S. Res. 71 before a Subcommittee of the Senate Committee on Banking and Currency (hereafter 1931 Hearings), 71st Cong., 3d Sess., 40 (1931); 1920 Report of the Comptroller of the Currency, quoted id., at 1067, 1068. Senator Glass, commenting on earlier banking législation, said, “We tried to, and thought at the time we had, removed the System as far as possible from the influence of the stock market.” Id., at 262. 15 Id., at 1052. 16 Report on Investment Trusts and Investment Companies, pt. 2, H. R. Doc. No. 70, 76th Cong, lst Sess, 59 (1939). 171931 Hearings 116-117, 1017, 1068. 630 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. gress was concerned that commercial banks in general and member banks of the Fédéral Reserve System in particular had both aggravated and been damaged by stock market décliné partly because of their direct and indirect involvement in the trading and ownership of spéculative securities.18 The Glass-Steagall Act re-flected a détermination that policies of compétition, con-venience, or expertise which might otherwise support the entry of commercial banks into the investment banking business were outweighed by the “hazards” and “financial dangers” that arise when commercial banks engage in the activities proscribed by the Act.19 The hazards that Congress had in mind were not limited to the obvious danger that a bank might invest its own assets in frozen or otherwise imprudent stock or security investments. For often securities affiliâtes had operated without direct access to the assets of the bank. This was because securities affiliâtes had frequently been estab-lished with capital paid in by the bank’s stockholders, or by the public, or through the allocation of a legal dividend on bank stock for this purpose.20 The legislative history of the Glass-Steagall Act shows that Congress also had in mind and repeatedly focused on the more subtle hazards that arise when a commercial bank goes beyond the business of acting as fiduciary or managing agent and enters the investment banking business either directly or by establishing an affiliate to hold and sell particular investments. This course places new promotional and other pressures on the bank which in turn create new 18 See S. Rep. No. 77, 73d Cong., lst Sess., 6, 8, 10. 19Id., at 18; see 1931 Hearings 365; 75 Cong. Rec. 9911 (remarks of Sen. Bulkley). 20 1931 Hearings 41, 192, 1056; 1920 Report of the Comptroller of the Currency, quoted id., at 1067. INVESTMENT CO. INSTITUTE v. CAMP 631 617 Opinion of the Court temptations. For example, pressures are created because the bank and the affiliate are closely associated in the public mind, and should the affiliate fare badly, public confidence in the bank might be impaired. And since public confidence is essential to the solvency of a bank, there might exist a natural temptation to shore up the affiliate through unsound loans or other aid.21 Moreover, the pressure to sell a particular investment and to make the affiliate successful might create a risk that the bank would make its crédit facilities more freely available to those companies in whose stock or securities the affiliate has invested or become otherwise involved. Congress feared that banks might even go so far as to make unsound loans to such companies.22 In any event, it was thought that the bank’s salesman’s interest might impair its ability to function as an impartial source of crédit.23 Congress was also concerned that bank depositors might suffer losses on investments that they purchased in re-liance on the relationship between the bank and its affiliate.24 This loss of customer good will might “become an important handicap to a bank during a major period of security market déflation.” 25 More broadly, 211931 Hearings 20, 237, 1063. See also id., at 1058, where it is said : “Activities of a bank’s security affiliate as a holding or finance company or an investment trust are also fraught with the danger of large losses during a déflation period. Bank affiliâtes of this kind show a much greater tendency to operate with borrowed funds than do organizations of this type which are independent of banks, the reason being that the identity of control and management which prevails between the bank and its affiliate tends to encourage reliance upon the lending facilities of the former.” 22 See id., at 1064; 75 Cong. Rec. 9912 (remarks of Sen. Bulkley). 23 See 1931 Hearings 87 (remarks of Chairman Glass). 24 See 77 Cong. Rec. 4028 (remarks of Rep. Fish). 25 1931 Hearings 1064. 632 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Congress feared that the promotional needs of investment banking might lead commercial banks to lend their réputation for prudence and restraint to the enterprise of selling particular stocks and securities, and that this could not be done without that réputation being undercut by the risks necessarily incident to the investment banking business.26 There was also perceived the danger that when commercial banks were subject to the promotional demands of investment banking, they might be tempted to make loans to customers with the expectation that the loan would facilitate the purchase of stocks and securities.27 There was evidence before Congress that loans for investment written by commercial banks had done much to feed the spéculative fever of the late 1920’s.28 Senator Glass made it plain that it was “the fixed purpose of Congress” not to see the facilities of commercial banking diverted into spéculative operations by the ag-gressive and promotional character of the investment banking business.29 26 See 75 Cong. Rec. 9912: “And although such a loss would possibly not resuit in any sub-stantial impairment of the resources of the banking institution owning that affiliate . . . there can be no doubt that the whole transaction tends to discrédit the bank and impair the confidence of its depositors.” (Remarks of Sen. Bulkley.) 27 S. Rep. No. 77, 73d Cong., lst Sess., 9-10. 28 1931 Hearings 1006-1029; S. Rep. No. 77, 73d Cong., lst Sess., 8-9. 29 75 Cong. Rec. 9884. See also S. Rep. No. 77, 73d Cong., lst Sess,., 8: “The outstanding development in the commercial banking System during the prepanic period was the appearance of excessive security loans, and of overinvestment in securities of ail kinds. The effects of this situation in changing the whole character of the banking problem can hardly be overemphasized. National banks were never intended to undertake investment banking business on a large scale, and the whole ténor of législation and administrative rulings concern- INVESTMENT CO. INSTITUTE v. CAMP 633 617 Opinion of the Court Another potential hazard that very much concerned Congress arose from the plain conflict between the pro-motional interest of the investment banker and the obligation of the commercial banker to render disinterested investment advice. Senator Bulkley stated: “Obviously, the banker who has nothing to sell to his depositors is much better qualified to advise dis-interestedly and to regard diligently the safety of depositors than the banker who uses the list of depositors in his savings department to distribute circulars concerning the advantages of this, that, or the other investment on which the bank is to re-ceive an originating profit or an underwriting profit or a distribution profit or a trading profit or any combination of such profits.” 30 Congress had before it evidence that security affiliâtes might be driven to unload excessive holdings through the trust department of the sponsor bank.31 Some witnesses at the hearings expressed the view that this practice con-stituted self-dealing in violation of the trustee’s obligation of loyalty, and indeed that it would be improper for a bank’s trust department to purchase anything from the bank’s securities affiliate.32 ing them has been away from récognition of such a growth in the direction of investment banking as legitimate.” In the same vein Représentative Steagall said: “Our great banking System was diverted from its original purposes into investment activities .... “The purpose of the regulatory provisions of this bill is to call back to the service of agriculture and commerce and industry the bank crédit and the bank service designed by the framers of the Fédéral Reserve Act.” 77 Cong. Rec. 3835. 30 75 Cong. Rec. 9912. 311931 Hearings 237 ; cf. id., at 1064. 32 Id., at 266, 300,311. 634 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. In sum, Congress acted to keep commercial banks out of the investment banking business largely because it believed that the promotional incentives of investment banking and the investment banker’s pecuniary stake in the success of particular investment opportunities was destructive of prudent and disinterested commercial banking and of public confidence in the commercial banking System. As Senator Bulkley put it: “If we want banking service to be strictly banking service, without the expectation of additional profits in selling something to customers, we must keep the banks out of the investment security business.” 33 V The language that Congress chose to achieve this purpose includes the prohibitions of § 16 that a national bank “shall not underwrite any issue of securities or stock” and shall not purchase “for its own account . . . any shares of stock of any corporation,” and the prohibition of § 21 against engaging in “the business of issuing, un-derwriting, selling, or distributing . . . stocks, bonds, debentures, notes, or other securities.” In this litigation the Comptroller takes the position that the operation of a bank investment fund is consistent with these provisions, because participating interests in such a fund are not “securities” within the meaning of the Act. It is argued that a bank investment fund simply makes avail-able to the small investor the benefit of investment management by a bank trust department which would otherwise be available only to large investors, and that the operation of an investment fund créâtes no problems that are not présent whenever a bank invests in securities for the account of customers. 33 75 Cong. Rec. 9912. INVESTMENT CO. INSTITUTE v. CAMP 635 617 Opinion of the Court But there is nothing in the phrasing of either § 16 or § 21 that suggests a narrow reading of the word “securities.” To the contrary, the breadth of the term is implicit in the fact that the antécédent statutory language encompasses not only equity securities but also securities representing debt. And certainly there is nothing in the language of these provisions to suggest that the sale of an interest in the business of buying, holding, and selling stocks for investment is to be dis-tinguished from the sale of an interest in a commercial or industrial enterprise. Indeed, there is direct evidence that Congress specif-ically contemplated that the word “security” includes an interest in an investment fund. The Glass-Steagall Act was the product of hearings conducted pursuant to Senate Resolution 71 which included among the topics to be in-vestigated the impact on the banking System of the formation of investment and security trusts.34 The sub-committee found that one of the activities in which bank security affiliâtes engaged was that of an investment trust: “buying and selling securities acquired purely for investment or spéculative purposes.” 35 Since Congress generally intended to divorce commercial banking from the kinds of activities in which bank security affiliâtes engaged, there is reason to believe that Congress ex-plicitly intended to prohibit a national bank from oper-ating an investment trust.36 But, in any event, we are persuaded that the purposes for which Congress enacted the Glass-Steagall Act leave no room for the conclusion that a participation in a bank investment fund is not a “security” within the 34 S. Res. 71, 71st Cong., 2d Sess., is reprinted in S. Rep. No. 77, 73d Cong., lst Sess., 1. 35 1931 Hearings 1057. See also id., at 307. 36 See also supra, n. 21. 636 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. meaning of the Act. From the perspective of compétition, convenience, and expertise, there are arguments to be made in support of allowing commercial banks to enter the investment banking business. But Congress determined that the hazards outlined above made it necessary to prohibit this activity to commercial banks. Those same hazards are clearly présent when a bank undertakes to operate an investment fund. A bank that opérâtes an investment fund has a particular investment to sell. It is not a matter of indifférence to the bank whether the customer buys an interest in the fund or makes some other investment. If its cus-tomers cannot be persuaded to invest in the bank’s investment fund, the bank will lose their investment business and the fee which that business would hâve brought in. Even as to accounts large enough to qualify for individual investment management, there might be a potential for a greater profit if the investment were placed in the fund rather than in individually selected securities, because of fixed costs and économies of scale. The mechanics of operating an investment fund might also create promotional pressure. When interests in the fund were redeemed, the bank would be effectively faced with the choice of selling stocks from the fund’s portfolio or of selling new participations to cover rédemptions. The bank might hâve a pecuniary incentive to choose the latter course in order to avoid the cost of stock transactions undertaken solely for rédemption purposes. Promotional incentives might also be created by the circumstance that the bank’s fund would be in direct compétition with mutual funds that, from the point of view of the investor, offered an investment opportunity comparable to that offered by the bank. The bank would want to be in a position to show to the prospective customer that its fund was more attractive than the mutual funds offered by others. The bank would hâve INVESTMENT CO. INSTITUTE v. CAMP 637 617 Opinion of the Court a salesman’s stake in the performance of the fund, for if the fund were less successful than the compétition the bank would lose business and the resulting fees. A bank that operated an investment fund would neces-sarily put its réputation and facilities squarely behind that fund and the investment opportunity that the fund offered. The investments of the fund might be conservative or spéculative, but in any event the success or failure of the fund would be a matter of public record. Imprudent or unsuccessful management of the bank’s investment fund could bring about a perhaps unjustified loss of public confidence in the bank itself. If imprudent management should place the fund in distress, a bank might find itself under pressure to rescue the fund through measures inconsistent with sound banking. The promotional and other pressures incidental to the operation of an investment fund, in other words, involve the same kinds of potential abuses that Congress intended to guard against when it legislated against bank security affiliâtes. It is not the slightest reflection on the integrity of the mutual fund industry to say that the traditions of that industry are not necessarily the conservative traditions of commercial banking. The needs and interests of a mutual fund enterprise more nearly approximate those of securities underwriting, the activity in which bank security affiliâtes were primarily engaged. When a bank puts itself in compétition with mutual funds, the bank must make an accommodation to the kind of ground rules that Congress firmly concluded could not be pru-dently mixed with the business of commercial banking. And there are other potential hazards of the kind Congress sought to eliminate with the passage of the Glass-Steagall Act. The bank’s stake in the investment fund might distort its crédit decisions or lead to unsound loans to the companies in which the fund had invested. The bank might exploit its confidential 415-649 0 - 72 - 46 638 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. relationship with its commercial and industrial creditors for the benefit of the fund. The bank might under-take, directly or indirectly, to make its crédit facilities available to the fund or to render other aid to the fund inconsistent with the best interests of the bank’s depositors. The bank might make loans to facilitate the purchase of interests in the fund. The bank might divert talent and resources from its commercial banking operation to the promotion of the fund. Moreover, because the bank would hâve a stake in a customer’s making a particular investment decision—the decision to invest in the bank’s investment fund—the customer might doubt the motivation behind the bank’s recommendation that he make such an investment. If the fund investment should turn out badly there would be a danger that the bank would lose the good will of those customers who had in-vested in the fund. It might be unlikely that disenchant-ment would go so far as to threaten the solvency of the bank. But because banks are dépendent on the confidence of their customers, the risk would not be unreal. These are ail hazards that are not présent when a bank undertakes to purchase stock for the account of its individual customers or to commingle assets which it has received for a true fiduciary purpose rather than for investment. These activities, unlike the operation of an investment fund, do not give rise to a promotional or salesman’s stake in a particular investment; they do not involve an enterprise in direct compétition with aggressively promoted funds ofïered by other investment companies; they do not entail a threat to public confidence in the bank itself ; and they do not impair the bank’s ability to give disinterested service as a fiduciary or managing agent. In short, there is a plain différence between the sale of fiduciary services and the sale of investments.37 37 See 26 Fed. Reserve Bull. 393 (1940), quoted supra, at 621. INVESTMENT CO. INSTITUTE v. CAMP 639 617 Harlan, J., dissenting VI The Glass-Steagall Act was a prophylactic measure directed against conditions that the expérience of the 1920’s showed to be great potentials for abuse. The literal ternis of that Act clearly prevent what the Comp-troller has sought to authorize here. Because the poten-tial hazards and abuses that flow from a bank’s entry into the mutual investment business are the same basic hazards and abuses that Congress intended to eliminate almost 40 years ago, we cannot but apply the terms of the fédéral statute as they were written. We conclude that the operation of an investment fund of the kind approved by the Comptroller involves a bank in the underwriting, issuing, selling, and distributing of securities in violation of § § 16 and 21 of the Glass-Steagall Act. Accordingly, we reverse the judgment in No. 61 and vacate the judgment in No. 59. It is so ordered. The Chief Justice took no part in the considération or decision of these cases. Mr. Justice Harlan, dissenting. The Court holds that the Investment Company Insti-tute has standing as a competitor to challenge the action of the Comptroller of the Currency because Congress “arguably legislated against the compétition that the petitioners sought to challenge, and from which flowed their injury.” The ICI, says the Court, is entitled to prevail because “Congress did legislate against the compétition that the petitioners challenge.” Ante, at 620, 621 (em-phasis added.) I understand the Court to mean by “legislated against the compétition” not only that Congress prohibited banks from entering this held of endeavor, but that it did so in part for reasons stemming from the fact 640 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. of the resulting compétition. See ante, at 631-634, 636-638. However, the Court cannot mean by this phrase that it was Congress’ purpose to protect petitioners’ class against compétitive in jury for, as ail three judges on the court below agreed, neither the language of the pertinent provisions of the Glass-Steagall Act nor the legislative history évincés any congressional concern for the interests of petitioners and others like them in freedom from compétition.1 Indeed, it appears reasonably plain that, if anything, the Act was adopted despite its anticom-petitive effects rather than because of them. Cf. ante, at 630, 636. This being the case, the discussion of standing in Hardin n. Kentucky Utilities Co., 390 U. S. 1, 5-6 (1968), is directly in point: “This Court has, it is true, repeatedly held that the économie in jury which results from lawful compétition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of its competitor’s operations. Railroad Co. v. Ellerman, 105 U. S. 166 (1882); Alabama Power Co. v. Ickes, 302 U. S. 464 (1938) ; Tennessee Power Co. v. TVA, 306 U. S. 118 (1939) ; Perkins v. Lukens Steel Co., 310 U. S. 113 (1940). But compétitive injury provided no basis for standing in the above cases simply because the statutory and constitutional requirements that the plaintiff sought to en-force were in no way concerned with protecting against compétitive in jury. In contrast, it has been the rule, at least since the Chicago Junction Case, 1 “It is equally clear that giving even the broadest reading of the legislative history embellishing the Act will not support the conclusion that Congress meant to bestow upon Appellees any protection from compétitive injury.” 136 U. S. App. D. C. 241, 263, 420 F. 2d 83, 105 (Burger, J., joined by Miller, J.) (footnote omitted) ; see also id., at 254, 256-258, 420 F. 2d, at 96, 98-100 (Bazelon, C. J.). INVESTMENT CO. INSTITUEE v. CAMP 641 617 Harlan, J., dissenting 264 U. S. 258 (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a compétitive interest, the injured competitor has standing to require compliance with that provision.” I do not believe that Data Processing Service n. Camp, 397 U. S. 150 (1970), and Arnold Tours v. Camp, 400 U. S. 45 (1970), require the opposite resuit from the one suggested by this passage from Hardin. Data Processing held that, aside from “case-or-controversy” problems not présent here, the crucial question in ruling on a challenge to standing is “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” 397 U. S., at 153. That question was resolved in favor of the data processors because “§ 4 [of the Bank Service Corporation Act] arguably brings a competitor within the zone of interests protected by it.” Id., at 156.2 In Arnold Tours the Court observed that it was again dealing with § 4 of the Bank Service Corporation Act, and that “[n]othing in the [Data Processing] opinion limited § 4 to pro-tecting only competitors in the data-processing field.” 400 U. S., at 46. Plainly these cases provide little support for the Court’s conclusion here that competitors, as such, hâve standing under the Glass-Steagall Act as well. The Court’s holding—that if Congress prohibited entry into a field of business for reasons relating to compétition, then a competitor has standing to seek observance of the prohibition—has a surface appeal, but, so far as I can see, no sound analytical basis. Certainly none is offered. In any event, it appears to me that our prior decisions, particularly Hardin, require the conclusion that 2 See also Barlow v. Collins, 397 U. S. 159, 164 (1970). 642 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. the petitioners in No. 61 lack standing to challenge the Comptroller’s action. While I would not foreclose the possibility that those cases should be further modified in some respect,3 the Court has not undertaken to reexamine them, and I deem it inappropriate for me to do so as a single Justice. The view that I take with regard to petitioners’ standing in No. 61 makes it unnecessary for me to reach the merits in that case, but it does require me to rule on the contentions made in No. 59. Like Mr. Justice Blackmun, see post, at 645, I find lengthy discussion of this topic superfluous. At issue is the propriety of the action of the Securities and Exchange Commission in increasing from two to three the number of seats open to bank officers on the five-man committee which serves as a board of directors of the account.4 Substantially for the reasons given by the judges of the court below, 136 U. S. App. D. C. 241, 249-253, 266, 420 F. 2d 83, 91-95, 108, I am of the opinion that the Commission did not abuse its discrétion in determining that the facts of this case made appropriate an exercise of the dis-pensing power explicitly vested in the Commission by 15 U. S. C. §80a-6 (c). For the reasons given herein, I would affirm the two judgments under review. Mr. Justice Blackmun, dissenting. The Court’s opinion and judgments here, it seems to me, are based more on what is deemed to be appropriate and désirable national banking policy than on what is a necessary judicial construction of the Glass-Steagall Act 3 For one suggestion to this effect, see Jaffe, Standing Again, 84 Harv. L. Rev. 633 (1971). 4 By virtue of the “person or party aggrieved” provision of the Investment Company Act, 15 U. S. C. § 80a-42 (a), there is no difficulty supporting petitioner’s standing in No. 59. INVESTMENT CO. INSTITUTE v. CAMP 643 617 Blackmun, J., dissenting of almost four décades ago. It is a far different thing to be persuaded that it is wise policy to keep national banks out of the business of operating mutual investment funds, despite the safeguards that the Comptroller of the Currency and the Securities and Exchange Commission hâve provided, than it is to be persuaded that existing and somewhat ancient législation requires that resuit. Policy considérations are for the Congress and not for this Court. I recognize and am fully aware of the factors and of the économie considérations that led to the enaetment of the Glass-Steagall Act. The second and third décades of this century are not the happiest chapter in the history of American banking. Deep national concerns emerged from the distressful expériences of those years and from the sad ends to which certain banking practices of that time had led the industry. But those then-prevailing conditions, the legislative history, and the remedy Congress provided, prompt me to conclude that what was proscribed was the involvement and activity of a national bank in investment, as contrasted with commercial, banking, in underwriting and issuing, and in acquiring spéculative securities for its own account. These were the banking sins of that time. The propriety, however, of a national bank’s acting, when not in contravention of state or local law, as an inter vives or testamentary trustée, as an executor or ad-ministrator, as a guardian or committee, as a custodian, and, indeed, as an agent for the individual customer’s securities and funds, see Carcaba v. McNair, 68 F. 2d 795, 797 (CA5 1934), cert. denied, 292 U. S. 646, is not, and could not be, questioned by the petitioners here or by the Court. This being so, there is, for me, an element of illogic in the ready admission by ail concerned, on the one hand, that a national bank has the power to manage, by way of a common trust arrangement, those funds that it holds as fiduciary in the technical sense, and to admin- 644 OCTOBER TERM, 1970 Blackmun, J., dissenting 401 U. S. ister separate agency accounts, and in the rejection, on the other hand, of the propriety of the bank’s placing agency assets into a mutual investment fund. The Court draws its decisional line between the two. I find it impossible to locate any statutory root for that line drawing. To use the Glass-Steagall Act as a tool for that distinction is, I think, a fundamental misconception of the statute. Accordingly, I am not convinced that the Congress, by that Act or otherwise, as yet has proscribed the banking endeavors under challenge here by competitors in a highly compétitive field. None of the judges of the Court of Appeals was so convinced, and neither was the Comptroller of the Currency whose expertise the Court concédés. I would leave to Congress the privilège of now prohibiting such national bank activity if that is its intent and desire. In Parts IV and V of its opinion the Court outlines hazards that are présent when a bank indulges in specified activities. The Court then states, in the last paragraph of Part V, that those hazards are not présent when a bank undertakes to purchase stock for individual customers, or to commingle assets held in its several fiduciary capaci-ties, and the like. I must disagree. It seems to me that exactly the same hazards are indeed présent. A bank offers its fiduciary services in an atmosphère of vigorous compétition. One need only observe the current and con-tinuous advertising of claimed fiduciary skills to know that this is so and that the business is one for profit. In the fiduciary area a bank is engaged in direct compétition with other investment concepts and with nonbanking fiduciaries. Failure or misadventure of a single trust may constitute a threat to public confidence among the bank’s other trust beneficiaries, prospective trustors, and even the commercial activities of the bank itself. It has an inévitable adverse effect upon the bank’s fulfillment of what is fashionably described today as its “full service.” INVESTMENT CO. INSTITUTE v. CAMP 645 617 Blackmun, J., dissenting Thus I feel that the Court overstates its case when it seeks to diminish the significance of these hazards in the fiduciary area as contrasted with mutual fund operation. After ail, we deal here with something akin to the traditional banking function and with a device that makes available for the small investor what is already available for the large investor by way of the individual agency account. What the Court décriés in the investment fund is the combination of three banking operations, each concededly permissible: acting as agent for the customer, purchasing for that customer, and pooling assets. It is said that “the union of these powers” gives birth to something “of a different character” and is statutorily prohibited. I doubt that those three powers, each allowed by the controlling statutes, somehow operate in combination to produce something forbidden by those same controlling statutes, and I doubt that the unitization is something more than or something different from the mere sum of its parts and that it thereby expands to achieve offensive-ness under the Glass-Steagall Act. With my position as to the Act only a minority one, detailed discussion of the additional issue, raised in No. 59, as to the propriety of the exemption granted by the Securities and Exchange Commission, would be super-fluous. Suffice it to say that I am in accord with the views expressed in the respective opinions on this issue in the Court of Appeals, 136 U. S. App. D. C. 241, 249-253, 266, 420 F. 2d 83, 91-95, and 108, and, in particular, by Chief Judge Bazelon when he carefully ex-amined the four “danger zones” considered by the SEC and the protections erected against them, and then con-curred in the Commission’s exercise of judgment. I, too, feel that the Commission did not act arbitrarily or exceed its statutory authority and that its détermination deserves support here. I would affirm the judgments of the Court of Appeals. 646 OCTOBER TERM, 1970 Syllabus 401 U. S. WILLIAMS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 81. Argued October 21, 1970—Decided April 5, 1971* In No. 81, here on direct review, petitioner was convicted of selling narcotics after a trial in which heroin seized in a search incident to his arrest was introduced into evidence. The Court of Appeals affirmed, holding that the intervening decision in Chimel v. California, 395 U. S. 752, narrowing the scope of permissible searches incident to arrest, was not to be retroactively applied to searches antedating the date it was decided, and that the search was valid under pre-Chimel law. Evidence at the trial of petitioner in No. 82 included marked bills seized during a pre-Chimel search of his apartment following his arrest on narcotics charges. The arrest and search were upheld at trial, on direct appeal, and in the District Court and Court of Appeals in proceedings under 28 U. S. C. § 2255. Held: The judgments are affirmed. Pp. 649-666, 699-700. No. 81, 418 F. 2d 159, and No. 82, affirmed. Mr. Justice White, joined by The Chief Justice, Mr. Justice Stewart, and Mr. Justice Blackmun, concluded that Chimel, supra, is not rétroactive and should not be applied to searches con-ducted prior to the date of that decision. Pp. 649-659. (a) Where the major purpose of a new constitutional standard is not to overcome an aspect of a criminal trial that substantially impairs the truth-finding fonction and thus raises serious questions about the accuracy of guilty verdicts in past trials, the new rule does not require rétrospective application. P. 653. (b) The Constitution does not require that pre-Chimel searches be measured by the new Chimel standards, Desist v. United States, 394 U. S. 244. Petitioners’ rights under then-existing law were not violated either before or during trial, it is not claimed that the evidence was constitutionally insufficient to prove guilt, and the purpose of the exclusionary rule will be sufficiently implemented by applying Chimel to searches occurring after the date of decision in that case. P. 656. *Together with No. 82, Elkanich v. United States, also on certiorari to the same court. WILLIAMS v. UNITED STATES 647 646 Syllabus (c) There is no constitutional différence between the applica-bility of Chimel to convictions here on direct appeal and those involving collateral proceedings, or between fédéral and state prisoners. Pp. 656-659. Mr. Justice Brennan concluded that the question is not whether every person convicted through evidence obtained contrary to Chimel, supra, is guilty, but rather whether Chimel com-pels the conclusion that the invasion of petitioners’ privacy, con-ducted in justifiable but mistaken reliance upon the continuing validity of pre-Chimel standards, requires the exclusion of the fruits of that invasion from the factfinding process. He agreed with the plurality opinion that it does not, and that the Chimel rule should not be applied retroactively. Pp. 660-665. Mr. Justice Black concurred in the resuit on the ground that Chimel, supra, was wrongly decided. P. 660. Mr. Justice Harlan concluded that the judgment should be affirmed in No. 82, here on collateral review, as the search in that case should not be subjected to the requirements of Chimel, supra, since petitioner’s conviction became final prior to Chimel, then-prevailing law validated the search, and the conviction was obtained by methods not fundamentally unfair. Pp. 699-700. Mr. Justice Marshall concluded that the judgment in No. 82 should be affirmed, as the mode of analysis in the plurality opinion is appropriate in cases here on collateral review, and the Chimel rule should not be applied retroactively in such cases. Pp. 665-666. White, J., announced the Court’s judgment and delivered an opinion, in which Burger, C. J., and Stewart and Blackmun, JJ., joined. Stewart, J., filed a separate statement, post, p. 660. Brennan, J., filed an opinion concurring in the resuit, post, p. 660. Harlan, J., filed an opinion concurring in the judgment in No. 82 and dissenting in No. 81, post, p. 675. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 665. Black, J., filed a statement concurring in the resuit, post, p. 660. Douglas, J., took no part in the considération or decision of these cases. Henry J. Florence argued the cause for petitioner in No. 81. With him on the brief was Philip M. Haggerty. Charles A. Miller, by appointaient of the Court, 396 U. S. 1065, argued the cause and filed briefs for petitioner in No. 82. 648 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. James van R. Springer argued the cause for the United States in both cases. On the brief in No. 81 were Solicitor General Griswold, Assistant Attorney General Wilson, Francis X. Beytagh, Jr., Richard B. Stone, and Béatrice Rosenberg. On the brief in No. 82 were Solicitor General Griswold, Assistant Attorney General Wilson, Mr. Beytagh, and Miss Rosenberg. Mr. Justice White announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice Blackmun join. The principal question in these cases is whether Chimel v. California, 395 U. S. 752 (1969), should be applied retroactively either to the direct review of petitioner Williams’ conviction or in the collateral proceeding ini-tiated by petitioner Elkanich. I In No. 81, fédéral agents on March 31, 1967, secured a warrant to arrest petitioner Williams on charges of selling narcotics in violation of 21 U. S. C. § 174. Williams was arrested at his home that night. A quantity of heroin was discovered and seized in the course of a search incident to the arrest. The trial court sustained the search and the heroin was introduced in evidence. Williams was convicted and sentenced to a 10-year prison term. The judgment of conviction was affirmed by the Court of Appeals for the Ninth Circuit. Williams v. United States, 418 F. 2d 159 (CA9 1969). That court held: (1) that our intervening decision in Chimel v. California, supra, was not rétroactive and did not govern searches carried out prior to June 23, 1969, the date of that decision; and (2) that the search was valid under pre-Chimel law evidenced by United States v. Rabino-witz, 339 U. S. 56 (1950), and Harris v. United States, 331 U. S. 145 (1947). The Court of Appeals also WILLIAMS v. UNITED STATES 649 646 Opinion of White, J. rejected a claim that the search was invalid because the arrest was a mere pretext for an unwarranted search. We granted certiorari. 397 U. S. 986 (1970). In No. 82, petitioner Elkanich was convicted on three counts of selling narcotics in violation of 21 U. S. C. § 174. He was sentenced to three concurrent 10-year sentences. The evidence introduced included marked bills given by fédéral agents to an intermediary to use in purchasing narcotics. The bills were seized during a search of petitioner’s apartment following his arrest there. The search was challenged at trial on the ground that the arrest was invalid. Both the arrest and the incident search were upheld at trial and on direct appeal, Elkanich n. United States, 327 F. 2d 417 (CA9 1964), as well as by the District Court and the Court of Appeals in subséquent proceedings brought by petitioner under 28 U. S. C. § 2255. We granted the pétition for certiorari to consider the effect, if any, of our Chimel decision, which intervened when the appeal from déniai of petitioner’s § 2255 application was pending in the Court of Appeals. 396 U. S. 1057 (1970). We affirm the judgments in both cases. II Aside from an insubstantial claim by Williams that his arrest wras invalid,1 neither petitioner in this Court suggests that his conviction was unconstitutionally ob- 1 The Court of Appeals correctly rejected Williams’ claim that his arrest was a pretext to make an otherwise invalid search. Williams v. United States, 418 F. 2d 159, 160-161 (CA9 1969). In his pétition for certiorari, Williams also argued that there was insuffi-cient proof of his knowledge of and control over the heroin found in the incidental search of his home, and thus that the Government had failed to prove constructive possession. This claim was neither briefed nor argued by the parties, and we décliné to disturb the judgment of the Court of Appeals rejecting it. See 418 F. 2d, at 162-163. 650 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. tained; no evidence and no procedures were employed at or before trial that violated any then-governing constitutional norms. Concededly, the evidence seized incident to the arrest of both petitioners was both properly seized and admitted under the Fourth Amendment as construed and applied in Harris in 1947 and Rabino-witz in 1950. Both Harris and Rabinowitz, however, were disapproved by Chimel. That case considerably narrowed the permissible scope of searches incident to arrest, and petitioners argue that the searches carried out in these cases, if judged by Chimel standards, were unrea-sonable under the Fourth Amendment and the evidence seized inadmissible at trial.2 However, we reaffirm our 2 Petitioner Williams was arrested pursuant to a warrant in the living room of his résidence shortly after midnight. Eight officers were involved, and the entire house was searched for a period of about one hour and 45 minutes. The heroin introduced at trial was found in a container on a closet shelf in one of the bedrooms. Williams, supra, n. 1, at 161. The Government does not argue that this search incident to arrest compiles with Chimel. Elkanich was arrested without a warrant in his apartment. He does not argue that the arresting agents did not hâve probable cause to arrest but asserts that the search violated the Fourth Amendment. Three agents came to petitioner’s apartment, and, after the door was opened by his wife in response to a knock, entered and immediately arrested petitioner. After handcuffing Elkanich, the agent in charge called for assistance. Three more agents arrived within 15 minutes, and they searched the four-room apartment for over an hour. The supervising agent asked petitioner if he had any large sums of cash, guns, “or anything of that kind” in the apartment. Petitioner at first said no, but later indicated there was some money in a broom closet. The agent found $500 above the molding at the top of the closet, returned to the living room, and searched petitioner and his wife, finding $200 on each of them. Another agent then found a second roll of bills above the molding in the broom closet, this one totaling about $1,000. Two other items later introduced in evidence were seized from a closet in the living room. Of the total of nearly $2,000 seized, $1,550 consisted of marked bills used by an undercover agent to WILLIAMS v. UNITED STATES 651 646 Opinion of White, J. recent decisions in like situations: Chimel is not rétroactive and is not applicable to searches conducted prior to the decision in that case. Desist v. United States, 394 U. S. 244 (1969). In Linkletter v. Walker, 381 U. S. 618 (1965), we declined to give complété rétroactive effect to the exclu-sionary rule of Mapp v. Ohio, 367 U. S. 643 (1961). Relying on prior cases, we firmly rejected the idea that ail new interprétations of the Constitution must be considered always to hâve been the law and that prior constructions to the contrary must always be ignored. Since that time, we hâve held to the course that there is no inflexible constitutional rule requiring in ail circumstances either absolute retroactivity or complété prospec-tivity for decisions construing the broad language of the Bill of Rights.3 Nor hâve we accepted as a dividing line purchase narcotics from one Rios, whom petitioner was alleged to be supplying. The Government here argues that exigent circumstances justify the search without a warrant. The argument is that the presence of petitioner’s wife in the apartment left the agents only two choices: (1) to postpone searching until a warrant could be secured, a course which would entail either some sort of control over the wife’s activity or a risk that evidence would disappear; or (2) to search the apartment immediately, as they did. Because of our resolution of the retroactivity question, we find it unnecessary to pass on this contention. 3 Many of the cases are discussed in the majority and dissenting opinions in Desist v. United States, 394 U. S. 244 (1969). These cases, and the general question of prospective effect for judicial decisions, hâve generated a substantial amount of commenta,ry See generally Bender, The Rétroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U. Pa. L. Rev. 650 (1962) ; Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201 (1965) ; Levy, Realist Jurisprudence and Prospective Overruling, 109 U. Pa. L. Rev. 1 (I960); Meador, Habeas Corpus and the “Retroactivity” Illusion, 50 Va. L. Rev. 1115 (1964); Mishkin, The Suprême Court 1964 Term—Foreword: The High Court, the Great Writ, and the Due Process of Time 652 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. the suggested distinction between cases on direct review and those arising on collateral attack.4 Rather we hâve proceeded to “weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether rétrospective operation will further or retard its operation.” Linkletter, supra, at 629.5 and Law, 79 Harv. L. Rev. 56 (1965); Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 N. Y. Ü. L. Rev. 631 (1967); Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. Chi. L. Rev. 719 (1966); Spruill, The Effect of an Overruling Decision, 18 N. C. L. Rev. 199 (1940); Note, Retroactivity of Criminal Procedure Decisions, 55 lowa L. Rev. 1309 (1970); Comment, Linkletter, Shott, and the Retroactivity Problem in Escobedo, 64 Mich. L. Rev. 832 (1966); Comment, Prospective Overruling and Rétroactive Application in the Fédéral Courts, 71 Yale L. J. 907 (1962). Cf. Kitch, The Suprême Court’s Code of Criminal Procedure: 1968-1969 Edition, 1969 Sup. Ct. Rev. 155, 183-200. 4 See post, p. 675 (Harlan, J., concurring in judgments and dissenting). Compare Mishkin, The Suprême Court 1964 Term—Fore-word: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56 (1965), with Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. Chi. L. Rev. 719 (1966). In rejecting the distinction between cases pending on direct review and those on collateral attack, the Court in Johnson v. New Jersey, 384 U. S. 719, 732 (1966), stated: “Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced.” 5 In our more recent opinions dealing with the rétroactive sweep of our decisions in the field of criminal procedure, the approach mandated by Linkletter has corne to be summarized in terms of a threefold analysis directed at discovering: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, WILLIAMS v. UNITED STATES 653 646 Opinion of White, J. Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complété rétroactive effect.0 Neither good-faith reliance by state or fédéral authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances. It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of défendants convicted in prior trials. Mapp v. Ohio cast no doubt on the relevance or probity of illegally seized evidence but excluded it from criminal trials to deter official invasions of individual privacy protected by the Fourth Amendment. Katz v. United States, 389 U. S. 347 (1967), overruled Olm-stead v. United States, 211 U. S. 438 (1928), and Gold-and (c) the effect on the administration of justice of a rétroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967); see also Desist v. United States, 394 U. S. 244, 249 (1969). 6 See, e. g., Arsenault v. Massachusetts, 393 U. S. 5 (1968) (giving rétroactive effect to the right to counsel provided in White v. Maryland, 373 U. S. 59 (1963)); McConnell v. Rhay, 393 U. S. 2 (1968) (giving rétroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U. S. 128 (1967)); Berger v. California, 393 U. S. 314 (1969) (giving rétroactive effect to Barber v. Page, 390 U. S. 719 (1968)); Roberts v. Russell, 392 U. S. 293 (1968) (giving rétroactive effect to B rut on v. United States, 391 U. S. 123 (1968)); Jackson v. Denno, 378 U. S. 368 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). 415-649 0 - 72 - 47 654 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. man v. United States, 316 U. S. 129 (1942), and gave expanded Fourth Amendment protection against non-consensual eavesdropping. It followed that evidence obtained by nontrespassory electronic surveillance of a public téléphoné booth became subject to the exclusion-ary rule, which had been fashioned by the Court to exact compliance with the Amendment rather than to protect défendants from conviction on untrustworthy evidence. Thus the Court, when it came to consider the retroactivity of Mapp and Katz, was dealing with cases quite different from those situations where emerg-ing constitutional doctrine casts such doubt upon the soundness of some aspect of prior trials that State and Fédéral Governments were disentitled from further pur-suing the goals of their criminal law against défendants convicted in such prior trials. The petitioners in both Linkletter and Desist were convicted in proceedings that conformed to ail then-applicable constitutional norms. In both cases the government involved had a concededly guilty défendant in custody and substantial unsatisfied interests in achieving with respect to such défendant whatever deterrent and rehabilitative goals underlay its criminal justice System. Each défendant, Linkletter by the habeas corpus route, and Desist on direct appeal, claimed the benefit of a later decided case and demanded a new trial. But ordering new trials would hâve involved not only expense and effort but the inévitable risk of unavailable witnesses and faulty memories; the authorities might not hâve had the evidence they once had and might hâve been foreclosed from obtaining other evidence they might hâve secured had they known the evidence they were using was constitutionally suspect. Moreover, it was not essential to the deterrent purpose of the exclu-sionary rule that Mapp and Katz be given rétroactive effect; indeed that purpose would hâve been only mar- WILLIAMS v. UNITED STATES 655 646 Opinion of White, J. ginally furthered by extending relief to Linkletter, De-sist, and ail others in comparable situations. In these circumstances, we found no constitutional warrant for setting aside either conviction.7 7 The Fourth Amendment cases do not stand alone. We hâve reached similar results in holding nonretroactive new interprétations of the Fifth Amendment’s privilège against compelled self-incrimination, although some ramifications of the privilège hâve more connection with trustworthy results than does the exclusionary rule designed to enforce the Fourth Amendment. See Tehan v. Shott, 382 U. S. 406, 414—415, n. 12 (1966) ; Johnson v. New Jersey, 384 U. S. 719, 730 (1966)’; Desist v. United States, 394 U. S., at 249-250, n. 14; cf. Mackey n. United States, post, at 674—675. So, too, the right to jury trial secured by the Sixth Amendment “generally tends to prevent arbitrariness and repression,” DeStefano v. Woods, 392 U. S. 631, 633 (1968), and the holdings in United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), carry implications for the reliability of identification testimony. But both Duncan v. Louisiana, 391 U. S. 145 (1968), obligating the States to recognize the right to jury trial by virtue of the Fourteenth and Sixth Amendments, and Wade and Gilbert were applied only prospectively in view of the countervailing considérations that retroactivity would entail. DeStefano v. Woods, supra; Stovall v. Denno, 388 U. S. 293 (1967). In both Johnson and Stovall, we frankly acknowledged that “[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a 'question of probabilities.’ ” 388 U. S., at 298. Where we hâve been unable to conclude that the use of such a “condemned practice” in past criminal trials présents substantial likelihood that the results of a number of those trials were factually incorrect, we hâve not accorded rétroactive effect to the decision condemning that practice. See e. g., DeStefano, 392 U. S., at 633-634 (quoting Duncan) : “ 'We would not assert, however, that every criminal trial—or any particular trial—held before a judge alone is unfair or that a défendant may never be as fairly treated by a judge as he would be by a jury.’ ” Our Brother Harlan criticizes these decisions, stating that he finds “inherently intractable the purported distinction between those new rules that are designed to improve the factfinding process and those designed principally to further other values.” Post, at 695. Earlier, he suggests that “those new rules cognizable on habeas ought to be 656 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. III Considering that Desist represents the sound approach to retroactivity daims in Fourth Amendment cases, we are confident that we are not constitutionally bound to apply the standards of Chimel to the cases brought here by Elkanich and Williams. Both petitioners were duly convicted when judged by the then-existing law; the authorities violated neither petitioner’s rights either before or at trial. No claim is made that the evidence against them was constitutionally insufficient to prove their guilt. And the Chimel rule will receive sufficient implémentation by applying it to those cases involving the admissibility of evidence seized in searches occurring after Chimel was announced on June 23, 1969, and carried out by authorities who through mistake or ignorance hâve violated the precepts of that decision. IV Both from the course of decision since Linkletter and from what has been said in this opinion, it should be clear that we find no constitutional différence between the applicability of Chimel to those prior convictions that are here on direct appeal and those involving collateral proceedings. Nor in constitutional terms is there any différence between state and fédéral pris-oners insofar as rétroactive application to their cases is concerned. defined, not by the ‘truth-determining’ test, but by the Palko [v. Connecticut, 302 U. S. 319, 325 (1937)] test.” Post, at 694. But operating within the confines of a rule that seeks to détermine, inter alia, whether a newly proscribed practice has probably produced factually improper results in cases where it was employed is surely to proceed with more definite hearings than are provided by a “test” that seeks to define those procedures which are “implicit in the concept of ordered liberty.” See n. 8, infra. WILLIAMS v. UNITED STATES 657 646 Opinion of White, J. We accept Mr. Justice Harlan’s truism, stated in dissent, that our task is to adjudicate cases and the issues they présent, including constitutional questions where necessary to dispose of the controversy. Hence, we must résolve the Fourth Amendment issues raised by Elkanich and Williams. But this leaves the question of how those issues should be resolved. Assuming that neither has a colorable claim under the pre-Chimel law but both would be entitled to relief if Chimel is the governing standard, which constitutional standard is to rule these cases? This is the unavoidable threshold issue—as Mr. Justice Harlan describes it in discussing cases before us on collateral review, a “choice of law problem.” Post, at 682. The opinions filed in these cases offer various answers to the question. We would judge the claims in both Williams and Elkanich by the law prevailing when petitioners were searched. Surely this resolution is no more legislative, and no less judicial, than that of Mr. Justice Harlan. He feels compelled to apply new overruling decisions to cases here on direct review but deems him-self free, with some vague and inscrutable exceptions,8 to refuse the benefits of new decisions to those défendants who collaterally attack their convictions. The latter judgment seems to rest chiefly on his own assessment of the public interest in achieving finality in criminal litigation. The former is not explained at ail except by repeated assertions that cases here on direct review are different.9 But we hâve no authority to upset 8 Compare Mr. Justice Harlan’s treatment of petitioner Elka-nich’s case, post, at 699-700, with his resolution of Mackey, post, at 700-701. Cf. his discussion of Gideon and its application to cases on collateral review. Post, at 693-694. 9 Let us assume that X and Y are accomplices in a murder and that they are tried separately in the state courts. For any one of several reasons, including reversai and retrial or consensual delay, X’s case proceeds slowly through direct review while Y’s conviction 658 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. criminal convictions at will. Does the Constitution compel us to apply Chimel retroactively and set aside Williams’ conviction when he was convicted on sound evidence secured in conformity with the then-applicable constitutional law as announced by this Court? As we hâve said, we think not—no more so than it com-pels applying the teachings of Chimel in reviewing the déniai of Elkanich’s pétition for collateral relief. Other than considering it inhérent in the process of judicial review, Mr. Justice Harlan does not directly address the question. Nor does he purport to explain how the purpose of the exclusionary rule fashioned by this Court as is quickly affirmed. Assume further that after X’s conviction is affirmed by the State’s highest court, this Court holds that a practice employed in both the X and Y trials violâtes the Constitution. Both X and Y corne before this Court at the same time seeking to hâve the new rule applied to their cases—X on direct review and Y by way of collateral attack. (Or, X and Y could be petitioners tried for wholly different offenses in different States or in different districts in the fédéral System. X, tried in a crowded jurisdiction and having appellate review in a busy judicial System, would be before this Court on direct review, while Y, whose case arose before less con-gested courts, would most likely be here on collateral attack.) Under Mr. Justice Harlan’s approach, X automatically receives the benefit of the new rule—because we are a court of law somehow bound to décidé ail cases here on direct review in accordance with the law as it exists when the case arrives for considération. Although we remain a court of law, Y may or may not receive the benefit of the new rule, the resuit depending on whether the new rule is designed to correct a practice that has corne, over time, to shock our Brother’s conscience. Under our approach today, the results as to X and Y would be consistent, as they should be. As a perceptive jurist has remarked: “[W]hen a court is itself changing the law by an overruling decision, its détermination of prospectivity or retroactivity should not dépend upon the stage in the judicial process that a particular case has reached when the change is made. Too many irrelevant considérations, including the common cold, bear upon the rate of progress of a case through the judicial System.” Schaefer, supra, n. 3, at 645. WILLIAMS v. UNITED STATES 659 646 Opinion of White, J. a Fourth Amendment mechanism will be at ail furthered by mechanically affording Williams the benefit of Chimel. We are also unmoved by the argument that since the petitioners in cases like Mapp, Duncan v. Louisiana, 391 U. S. 145 (1968), and Katz hâve been given relief, when it was only by chance that their cases first brought those issues here for decision, it is unfair to deny relief to others whose cases are as thoroughly deserving. It would follow from this argument that ail previous convictions that would be vulnérable if they occurred today would be set aside. Surely this is the tail wagging the dog. The argument was fairly met and adequately disposed of in Stovall v. Denno, 388 U. S. 293, 301 (1967). We see no reason to repeat or reconsider what we said in that case. It is urged that the prevailing approach to retroactivity involves confusing problems of identifying those “new” constitutional interprétations that so change the law that prospectivity is arguably the proper course. But we hâve no such problems in these cases since to reach the resuit it did the Court in Chimel found it necessary to disapprove Harris and Rabinowitz and under those cases the search in Chimel and the searches now before us would hâve been deemed reasonable for Fourth Amendment purposes. Moreover, the idea that circumstances may require prospectivity for judicial decisions construing the Constitution is an old one; it is not a new problem for the courts. It has not proved unman-ageable and we doubt that courts and judges hâve sud-denly lost the compétence to deal with the problems that it may présent.10 The judgments are Affirmed. 10 Nor is the problem “greatly ameliorated,” post, at 695, by the approach suggested by Mr. Justice Harlan. For whenever our Brother Harlan considers a case on collateral review, he must of 660 OCTOBER TERM, 1970 Brennan, J., concurring in resuit 401 U. S. While joining the plurality opinion, Mr. Justice Stewart would also affirm the judgment in No. 82, Elkanich v. United States, on the alternative ground that the issue presented is not one cognizable in a proceeding brought under 28 U. S. C. § 2255. See Harris n. Nelson, 394 U. S. 286, 307 (dissenting opinion) ; Kaufman n. United States, 394 U. S. 217, 242 (dissenting opinion); Chambers n. Maroney, 399 U. S. 42, 54 (concurring opinion). Mr. Justice Black, while adhering to his opinion in Linkletter v. Walker, 381 U. S. 618, 640 (1965), concurs in the resuit on the ground that he believes that Chimel v. California, 395 U. S. 752 (1969), was wrongly decided. Mr. Justice Douglas took no part in the considération or decision of these cases. [For opinion of Mr. Justice Harlan, concurring in the judgment in No. 82 and dissenting in No. 81, see post, p. 675.] Mr. Justice Brennan, concurring in the resuit. Chimel v. California, 395 U. S. 752 (1969), applied principles established by a long line of cases1 to détermine the permissible scope of a warrantless search sought necessity détermine which of the prisoner’s daims are grounded on “new” rules in deciding what “the law in effect [was] when a conviction became final,” post, at 692. 1 Our cases hâve settled the proposition that the Fourth Amendment requires agents of the Government to obtain prior judicial approval of ail searches and seizures, see, e. g., Davis v. Mississippi, 394 U. S. 721, 728 (1969); Katz v. United States, 389 U. S. 347, 356-357 (1967) ; James v. Louisiana, 382 U. S. 36 (1965) ; Preston v. United States, 376 U. S. 364, 368 (1964); McDonald v. United States, 335 U. S. 451, 455-456 (1948) ; Agnello v. United States, 269 U. S. 20, 33 (1925), subject only to a few narrow and well-delineated exceptions grounded upon urgent necessity. Terry v. Ohio, 392 U. S. 1, 16-27 (1968); see Katz v. United States, supra, WILLIAMS v. UNITED STATES 661 646 Brennan, J., concurring in resuit to be justified as the necessary incident of a lawful arrest. But in applying these principles to the circumstances involved in Chimel, we were compelled to overrule Harris N. United States, 331 U. S. 145 (1947), and United States v. Rabinowitz, 339 U. S. 56 (1950). Harris and Rabino-witz were founded on “little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considérations relevant to Fourth Amendment interests.” Chimel, supra, at 764-765; see United States v. Rabinowitz, supra, at 83 (Frankfurter, J., dissenting). By the time of Chimel, this view had long since been rejected; but until that day, Harris and Rabinowitz survived as direct authority for the proposition that a lawful arrest would somehow justify a war-rantless search of the premises on which the arrest was made, beyond the immédiate reach of the person arrested.2 Accordingly, we are presented in these cases with the question whether Chimel should be applied to require the exclusion at trial of evidence which is the fruit of a search, carried out before our decision in Chimel, and which would be lawful if measured by the standards of Harris and Rabinowitz, but unlawful under the rule of Chimel. The Court today holds that the fruits of searches made prior to our decision in Chimel may be used in criminal trials if the searches may be justified at 357 n. 19 and cases cited; cf. Chambers v. Maroney, 399 U. S. 42 (1970). And, in ail events, “[t]he scope of [a] search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry n. Ohio, supra, at 19, quoting Warden v. Hayden, 387 U. S. 294, 310 (1967) (concurring opinion). 2 Long before Chimel, of course, we had made clear that Harris and Rabinowitz were not themselves without limit. James v. Louisiana, 382 U. S. 36 (1965); Kremen v. United States, 353 U. S. 346 (1957); see Von Cleef v. New Jersey, 395 U. S. 814 (1969); Stanley v. Georgia, 394 U. S. 557, 569-572 (1969) (Stewart, J., concurring in resuit). 662 OCTOBER TERM, 1970 Brennan, J., concurring in resuit 401 U. S. under the standards of Harris and Rabinowitz as those standards had previously been applied. See, e. g., Von Cleef v. New Jersey, 395 U. S. 814 (1969). I agréé. In Stovall v. Denno, 388 U. S. 293, 297 (1967), we said that “[t]he criteria guiding resolution of [this] question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a rétroactive application of the new standards.” Ail three factors imply that the rule of Chimel should be applied only to searches carried out after Chimel was decided. I Like the Fifth Amendment’s protection against com-pulsory self-incrimination, the warrant requirement of the Fourth Amendment stakes out boundaries beyond which the government may not tread in forcing evidence or information from its citizens. When coercion, im-permissible under the Fifth Amendment, has actually produced an involuntary statement, we hâve invariably held that the fruits of that unconstitutional coercion may not be used to prosecute the individual involved for crime. E. g., Rochin v. California, 342 U. S. 165, 173 (1952) (Frankfurter, J.) ; Ashcraft v. Tennessee, 322 U. S. 143 (1944); Boyd v. United States, 116 U. S. 616, 630-635, 638 (1886).3 Exclusion of statements impermissibly coerced is not merely a device to deter government agents from improper conduct in the future. Exclusion of coerced testimony is part and parcel of the privilège 3 Under what circumstances the Fifth Amendment requires that the individual concerned be granted immunity from prosecution for the matters revealed in his statements is a question not pertinent here. See Piccirillo v. New York, 400 U. S. 548, 561-573 (1971) (Brennan, J., dissenting). WILLIAMS v. UNITED STATES 663 Brennan, J., concurring in resuit 401 U. S. against self-incrimination. Likewise, when a search impermissible under the Fourth Amendment results in the seizure of evidence, exclusion of the fruits of that unconstitutional invasion is required not merely in hope of deterring unconstitutional searches in the future, but in order to vindicate the right of privacy guaranteed by the Fourth Amendment. See Boyd v. United States, supra; Weeks v. United States, 232 U. S. 383, 390-394, 398 (1914) ; Mapp v. Ohio, 367 U. S. 643, 656, 660 (1961). Exclusion of evidence in order to vindicate the right of privacy, however, does not improve the reliability of the factfinding process at trial. See Desist v. United States, 394 U. S. 244, 249-250 (1969), and cases cited. Accordingly, this factor does not require that the standards of Chimel be retroactively applied. Desist v. United States, supra; Stovall v. Denno, 388 U. S., at 297-299. II The factor of reliance by law-enforcement officiais on Harris and Rabinowitz points in the same direction. As we recognized in Chimel itself, Fourth Amendment jurisprudence has often followed a tortuous path. 395 U. S., at 755-762. So long as Harris and Rabinowitz were not visibly overruled, we cannot be surprised that policemen and those who ofïer them guidance may not hâve scru-tinized their doctrinal underpinnings for signs of érosion. And the extent of reliance, it appears, has been considérable. The Government represents, and petitioners do not seriously dispute, that a very substantial number of searches hâve been carried out in relialice upon these cases. In many of these, there is no reason to doubt that a warrant could and would hâve been obtained if the officiais involved had been aware that a warrant would be required. This factor as well, therefore, implies that Chimel should hâve only prospective application. 664 OCTOBER TERM, 1970 Brennan, J., concurring in resuit 401 U. S. III Finally, we must evaluate the probable impact of rétroactive application on the administration of justice. Persons convicted through the use of evidence inadmissible under Chimel hâve been found to hâve engaged in conduct that the government involved may legitimately punish. Chimel casts no doubt upon the propriety of the government’s interest in punishing those who hâve engaged in such conduct. Accordingly, it may fairly be assumed that rétroactive application of its standards would resuit in a substantial number of retrials. Yet Chimel likewise casts no doubt upon the reliability of the initial détermination of guilt at the previous trial. Moreover, the legitimate reliance of law-enforcement officiais on Harris and Rabinowitz, as already noted, may well hâve led them to conduct a warrantless search merely because the warrant requirement, although easily satisfied, was understandably not understood. The conséquence of this is that rétroactive application of the standards applied in Chimel would impose a substantial burden upon the fédéral and state judicial Systems, while serving neither to redress knowing violations of individual privacy nor to protect a class of persons the government has no legitimate interest in punishing. IV This is not to say, however, that petitioners are to be denied relief because they are probably guilty. “ [T]here is always in litigation a margin of error, representing error in factfinding.” Speiser v. Randall, 357 U. S. 513, 525 (1958). The constitutional requirement that guilt in criminal cases be proved beyond a reasonable doubt serves to limit, but cannot eliminate, the number of criminal défendants found guilty who are in fact innocent. See In re Winship, 397 U. S. 358, 370-372 (1970) (con- WILLIAMS v. UNITED STATES 665 646 Opinion of Marshall, J. curring opinion). In the présent cases, both petitioners asserted their innocence by pleading not guilty and going to trial; and petitioner in No. 81, whose case is here on direct review, raised in his pétition for certiorari the question whether the evidence presented at trial was suffi-cient to support a finding of guilt. But this Court does not sit to review such questions. In denying rétroactive application to the rule of Chimel, we neither do nor could détermine that every person convicted by the use of evidence obtained contrary to that rule is in fact guilty of the crime of which he was convicted. The question we face is not the legitimacy or sincerity of petitioners’ claims of innocence, or indeed whether any such claims are expressly made at ail. It is, instead, whether Chimel v. California compels us to conclude that the invasion of petitioners’ privacy, conducted in justifiable but mis-taken reliance upon the continuing validity of Harris and Rabinowitz, requires the exclusion of the fruits of that invasion from the factfinding process at trial. I agréé with the Court that it does not, and that the standards of Chimel should apply only to searches carried out after June 23, 1969. Mr. Justice Marshall, concurring in part and dissenting in part. After studying afresh the pattern of the Court’s retroactivity decisions since Linkletter v. Walker, 381 U. S. 618 (1965), I conclude that a decision of this Court con-struing the Constitution should be applied retroactively to ail cases involving criminal convictions not yet final at the time our decision is rendered. Sound jurispru-dential reasoning, so well articulated by Mr. Justice Harlan in his separate opinion covering the présent cases, post, p. 675, in my view requires that cases still on direct review should receive full benefit of our super-vening constitutional decisions. I am persuaded that 666 OCTOBER TERM, 1970 Opinion of Marshall, J. 401 U. S. willingness to tolerate the inévitable costs and anomalies of the Court’s current approach to retroactivity is incompatible with the judicial duty of principled review of convictions not yet final. I disagree somewhat with Mr. Justice Harlan as to the proper approach to retroactivity for cases arising on habeas corpus or other modes of collateral attack. In such cases I believe it is best to employ the three-part analysis that the plurality undertakes today in deciding the retroactivity of the rule in Chimel v. California, 395 U. S. 752 (1969). This mode of analysis was fore-shadowed in Linkletter, where the question was whether the rule of Mapp v. Ohio, 367 U. S. 643 (1961), should be applied on collateral review. The method commends itself, once the point of finality after direct review is passed, as a careful and appropriate way of adjudicating the “procédural” rights of litigants in view of the purposes of a new decisional rule and the concerns of effective law enforcement. In particular, if the purposes of a new rule implicate decisively the basic truth-deter-mining function of the criminal trial, then I believe the rule should be given full rétroactive application, for the required constitutional procedure itself would then stand as a concrète embodiment of “the concept of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325 (1937). In light of the above, I concur in the Court’s disposition of No. 82. That case is before us on collateral review. For cases in such a posture the mode of analysis used by the plurality is appropriate, and I agréé that the Chimel rule should not be applied retroactively to such cases. No. 81 is before us on direct review. Since there is a clear violation of Chimel on the facts, I would reverse the judgment below, for I believe that the same constitutional rule should be applied to adjudicate the rights of the petitioner in No. 81 as was applied in Chimel’s case. MACKEY v. UNITED STATES 667 Syllabus MACKEY v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 36. Argued October 21, 1970—Decided April 5, 1971 At petitioner’s trial for income tax évasion, the Government used monthly wagering tax forms petitioner had filed, as required by statute, to show that the gross amount of wagers he reported, less business expenses, exceeded the gambling profits reported on his income tax returns. Petitioner objected on the ground that the forms were préjudiciai and irrelevant, but he was convicted in 1964 and the Court of Appeals affirmed. After this Court’s 1968 decisions in Marchetti n. United States, 390 U. S. 39, and Grosso v. United States, 390 U. S. 62, petitioner applied for postconviction relief on the ground that the Fifth Amendment barred the prose-cution’s use of the wagering tax forms. The District Court denied the application. The Court of Appeals affirmed, holding that Marchetti and Grosso would not be applied retroactively to over-turn the earlier income tax évasion conviction based on the then-applicable constitutional principles. Held: The judgment is affirmed. Pp. 671-675, 700-701, 703-713. 411 F. 2d 504, affirmed. Mr. Justice White, joined by The Chief Justice, Mr. Justice Stewart, and Mr. Justice Blackmun, concluded that Marchetti and Grosso are not to be applied retroactively, since no threat to the reliability of the factfinding process was involved in the use of the wagering tax forms at petitioner’s trial. Tehan n. Shott, 382 U. S. 406; Johnson n. Neiv Jersey, 384 U. S. 719; Williams v. United States, ante, p. 646. Pp. 671-675. Mr. Justice Harlan concluded that in this case, here on collateral review, the judgment should be affirmed, since he cannot say that the pre-Marchetti rule that prevailed at the time of petitioner’s conviction, viz., that the registration requirement and obligation to pay the gambling tax did not violate the Fifth Amendment, was so grossly erroneous as to work an inexcusable inequity against petitioner and that the then-existing justification for that resuit (that persons could avoid self-incrimination by ceasing to engage in illégal activities) is not without some force. Pp. 700-701. Mr. Justice Brennan, joined by Mr. Justice Marshall, concluded that the Fifth Amendment does not bar the use of infor 668 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. mation that, in furtherance of the general scheme of collecting taxes and enforcing the tax laws, required those in the business of accept-ing wagers to report their income, a situation readily distinguishable from that in Marchetti and Grosso, where the Amendment was held to bar forced disclosure of information that would hâve sub-jected the individual concerned to the “real and appréciable” haz-ard of self-incrimination for violating pervasive state or fédéral laws proscribing gambling. Pp. 703-713. White, J., announced the Court’s judgment and delivered an opinion in which Burger, C. J., and Stewart and Blackmun, JJ., joined. Harlan, J., filed an opinion concurring in the judgment, post, p. 675. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 702. Douglas, J., filed a dissenting opinion, in which Black, J., joined, post, p. 713. William M. Ward argued the cause and filed briefs for petitioner. Matthew J. Zinn argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Francis X. Beytagh, Jr., Béatrice Rosenberg, and Mervyn Hamburg. Mr. Justice White announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice Blackmun join. An indictment was returned in March 1963 charging petitioner Fred T. Mackey in five counts of evading payment of income taxes by willfully preparing and causing to be prepared false and fraudulent tax returns for the years 1956 through 1960, in violation of 26 U. S. C. § 7201. On January 21, 1964, a jury in the District Court for the Northern District of Indiana found Mackey guilty on ail five counts.1 The conviction was affirmed on appeal by the Court of Appeals for the 1 Petitioner received a sentence of five years’ imprisonment and a fine of $10,000 on each count, the prison terms to be served con-currently. MACKEY v. UNITED STATES 669 667 Opinion of White, J. Seventh Circuit in the spring of 1965. 345 F. 2d 499 (CA7), cert. denied, 382 U. S. 824 (1965). At petitioner’s trial, the Government used the net-worth method to prove évasion of income taxes.2 As part of its case, it introduced 60 wagering excise tax returns—one for every month of each of the five years covered by the indictment—filed by petitioner pursuant to 26 U. S. C. § 4401. A summary exhibit prepared from these returns and petitioner’s income tax returns were also introduced, and an Internai Revenue Service technical advisor testified that for the years in question the totals of the gross amount of wagers reported on the wagering tax returns, less the expenses of running petitioner’s “policy wheel” operation as reported on his annual income tax returns, exceeded the net profits from gambling reported on the petitioner’s income tax returns. Defense counsel objected to the introduction of these exhibits, arguing that they were préjudiciai, inflam-matory, and irrelevant; the Government responded that the wagering tax returns and the summary exhibit were relevant because they showed a likely source of unre-ported income. The exhibits were admitted, and the Court of Appeals found, without spécifie discussion, no error in the ruling.3 On January 29, 1968, this Court held that the Fifth Amendment privilège against compulsory self-incrimination was a valid defense to a prosecution for failure to register as a gambler and to pay the related occupa-tional and gambling excise taxes under 26 U. S. C. 2 This method of prosecution is discussed and approved in Holland v. United States, 348 U. S. 121 (1954); Friedberg v. United States, 348 U. S. 142 (1954) ; Smith v. United States, 348 U. S. 147 (1954) ; United States v. Calderon, 348 U. S. 160 (1954). 3 In rejecting petitioner’s application for relief under 28 U. S. C. § 2255, the District Judge so read the Court of Appeals’ earlier opinion. See App. 28. 415-649 0 - 72 - 48 670 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. §§ 4401, 4411, 4412. Marchetti v. United States, 390 U. S. 39 (1968); Grosso v. United States, 390 U. S. 62 (1968). Petitioner, who had begun serving his sentence in December 1965, filed on February 12, 1968, a motion pursuant to 28 U. S. C. § 2255 to vacate his sentence and set aside the judgment of conviction on authority of Marchetti and Grosso. The motion was denied by the District Court for the Northern District of Indiana,4 and the Court of Appeals affirmed. 411 F. 2d 504 (CA7 1969). Although the Court of Appeals suggested that petitioner’s argument that he had not waived the Fifth Amendment claim by his failure to raise it at trial was open to question, 411 F. 2d, at 506-507, it specifically held that Marchetti and Grosso would not be applied retroactively to upset a pre-Marchetti conviction for 4 The District Court advanced several reasons for denying petitioner’s application. See App. 27-38. Noting that with gambling excise tax returns “there is little danger of their unreliability other than their possible understatement of liability,” id., at 32, the District Judge held that Marchetti and Grosso should not be applied to petitioner’s case: “An examination of these and other cases reveals no instance where the [Suprême] Court has given rétroactive application to an ex-clusionary rule or other Constitutional guarantee where the reliability of the fact finding process had not been jeopardized. The briefs for [Mackey] hâve suggested none. In [petitioner] Mackey’s trial, the introduction of the wagering tax forms did not jeopardize the integrity of the trial except to the extent that they showed that he was engaged in illégal activities other than that charged. This possibility was raised by Mackey’s attorneys at the trial, and apparently on appeal, and both times the Courts held that there was no error.” Id., at 36. We note in reference to the last point mentioned by the District Judge that at trial the court’s charge to the jury included several strong admonitions to the effect that the question of whether any business run by petitioner was legal or illégal was irrelevant to the offense charged in the indictment—failure to report income for five years. See Brief for the United States 11. MACKEY v. UNITED STATES 671 667 Opinion of White, J. evading payment of income tax simply because the wagering excise tax returns filed pursuant to 26 U. S. C. § 4401 were introduced in evidence at trial. Employing the threefold analysis set forth in our retroactivity decisions, see, e. g., Stovall v. Denno, 388 U. S. 293, 297 (1967), the Court of Appeals found that law enforcement officiais had relied on the old rule, that rétroactive application of Marchetti and Grosso in cases such as peti-tioner’s would hâve a substantial impact on the administration of justice, and that “[t]he unreliability of the fact-finding process which is the touchstone of retroactivity is simply not threatened by the impersonal com-mand of the wagering tax laws.” 411 F. 2d, at 509. We granted certiorari. 396 U. S. 954. I In United States v. Kahriger, 345 U. S. 22 (1953), a prosecution for failure to register and pay the gambling tax, this Court held that the registration requirement and the obligation to pay the gambling tax did not violate the Fifth Amendment. The Court construed the privilège as relating “only to past acts, not to future acts that may or may not be committed. . . . Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely informed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions.” 345 U. S., at 32-33. Lewis v. United States, 348 U. S. 419 (1955), reaffirmed this construction of the Fifth Amendment. Thirteen years later we could not agréé with what was deemed an “excessively narrow” view of the scope of the privilège. 390 U. S., at 52. The “force of the constitutional prohibition is [not] diminished merely because confession of a guilty purpose précédés the act which it is subsequently employed to 672 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. evidence.” 390 U. S., at 54. The gambling registration and tax requirements were held to présent substantial risks of self-incrimination and therefore to be unenforce-able; imposition of criminal penalties for noncompliance was an impermissible burden on the exercise of the privilège. Until Marchetti and Grosso, then, the registration and gambling tax provisions had the express approval of this Court; the Fifth Amendment provided no defense to a criminal prosecution for failure to comply. But as of January 29, 1968, the privilège was expanded to excuse noncompliance. The statutory requirement to register and file gambling tax returns was held to compel self-incrimination and the privilège became a complété defense to a criminal prosecution for failure to register and pay the related taxes. It followed that the registration and excise tax returns filed in response to the statutory command were compelled statements within the meaning of the Fifth Amendment and accordingly were inadmissible in evidence as part of the prosecution’s case in chief. The question before us is whether the Marchetti-Grosso rule applies retroactively and invalidâtes Mackey’s conviction because his gambling excise tax returns were introduced against him at his trial for income tax évasion. We hâve today reaffirmed the nonretroactivity of decisions overruling prior constructions of the Fourth Amendment. Williams n. United States and Elkanich v. United States, ante, p. 646. The decision in those cases represents the approach to the question of when to accord rétroactive sweep to a new constitutional rule taken by this Court in the line of cases from Linkletter 5 in 1965 to Desist6 in 1969. Among those cases were two which determined that earlier decisions extending the 5 Linkletter v. Walker, 381 U. S. 618 (1965). 6 Desist n. United States, 394 U. S. 244 (1969). MACKEY v. UNITED STATES 673 667 Opinion of White, J. reach of the Fifth Amendment privilège against com-pelled self-incrimination would not be retroactively applied to invalidate prior convictions that in ail respects conformed to the then-controlling law. In Tehan v. Shott, 382 U. S. 406 (1966), the Court de-clined to apply the rule of Griffin v. California, 380 U. S. 609 (1965), to prisoners seeking collateral relief. Griffin had construed the Fifth Amendment to forbid comment on défendants’ failure to testify, thereby removing a bur-den from the exercise of the privilège against compulsory self-incrimination and further implementing its purpose. The basic purpose of the privilège, we said, was not re-lated to “protecting the innocent from conviction,” 382 U. S., at 415; the privilège “is not an adjunct to the ascer-tainment of truth,” but is aimed at serving the complex of values on which it has historically rested. 382 U. S., at 416. Given this purpose, clear reliance on the pre-Griffin rules, and the frustration of state interests which retroactivity would hâve entailed, we refused relief to a state prisoner seeking collateral relief although the prose-cutor’s comment on his failure to take the stand at his trial would hâve infringed the new’ rule that was an-nounced in Griffin and was being applied in contemporary trials. Johnson v. New Jersey, 384 U. S. 719 (1966), reaffirmed this view of the Fifth Amendment by declining to apply the Miranda 7 rules to cases pending on direct review as well as to those involving applications for collateral relief. Stating that the “prime purpose of these rulings is to guarantee full effectuation of the privilège against self-incrimination, the mainstay of our adversary System of criminal justice,” 384 U. S., at 729, the Court also recognized that the new rules to some extent did guard against the possibility of unreliable admissions given 7 Miranda v. Arizona, 384 U. S. 436 (1966). 674 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. during custodial interrogation. Id., at 730. The question, however, was one of “probabilities.” The hazard of untrustworthy results in past trials was not sufficiently apparent to require rétroactive application in view of the existing, well-defined remedies against the use of many involuntary confessions, the obvious fact that the new warnings had not been standard practice prior to Miranda, and the conséquent disruption to the administration of the criminal law. II Guided by our decisions dealing with the retroactivity of new constitutional interprétations of the broad language of the Bill of Rights, we agréé with the Court of Appeals that Marchetti and Grosso should not hâve any rétroactive effect on Mackey’s conviction. Petitioner was convicted in strict accordance with then-applicable constitutional norms. Mackey would hâve a significant claim only if Marchetti and Grosso must be given full rétroactive sweep. But in overruling Kahriger and Lewis, the Court’s purpose was to provide for a broader implémentation of the Fifth Amendment privilège—a privilège that does not include at its core a concern for improving the reliability of the results reached at criminal trials. There is no indication in Marchetti or Grosso that one of the considérations which moved the Court to hold that the Congress could not constitutionally compel citi-zens to register as gamblers and file related tax returns was the probable unreliability of such statements once given. Petitioner has not advanced any objective considérations suggesting such unreliability. The wagering tax returns introduced in evidence at his trial hâve none of the characteristics, and hence none of the potential unreliability, of coerced confessions produced by “overt and obvious coercion.” Johnson, 384 U. S., at 730. Nor does Mackey suggest that his returns—made under MACKEY v. UNITED STATES 675 667 Opinion of Harlan, J. oath—were inaccurate in any respect.8 Thus, a gambling excise tax return, like physical evidence seized in violation of a new interprétation of the Fourth Amendment, is concededly relevant and probative even though obtained by the Government through means since defined by this Court as constitutionally objectionable. As in Desist, Elkanich, and Williams, the resuit here should be that a pre-Marc/ieüz trial in which the Government employed such evidence is not set aside through rétroactive application of the new constitutional principle. The short of the matter is that Marchetti and Grosso raise not the slightest doubt about the accuracy of the verdict of guilt returned here. Under these circumstances, the principles represented by Elkanich and Williams, as well as by Tehan and Johnson, must control. For Tehan and Johnson indicate that even though decisions reinterpreting the Fifth Amendment may create marginal doubts as to the accuracy of the results of past trials, the purposes of those decisions are adequately served by prospective application. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Mr. Justice Harlan, concurring in the judgments in Nos. 36 and 82 and dissenting in No. 81. These three cases hâve one question in common: the extent to which new constitutional rules prescribed by this Court for the conduct of criminal cases are applicable to other such cases which were litigated under different but then-prevailing constitutional rules. One of these cases is before us on direct review, No. 81, Williams, the other two being here on collateral review, No. 82, Elkanich, and No. 36, Mackey. In each instance the new rule is held not applicable, and, in 8 See n. 4, supra. 676 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. conséquence, the judgments below are affirmed, without reaching the merits of the underlying questions presented. Two of the cases, Williams and Elkanich, involve the Court’s decision in Chimel v. California, 395 U. S. 752 (1969), changing the rule as to the scope of permissible searches and seizures incident to a lawful arrest. The other case, Mackey, involves the Court’s decisions in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968), changing the rule as to the application of the privilège against self-incrimination with respect to criminal prosecutions arising under the fédéral gambling tax statutes. Today’s decisions mark another milestone in the development of the Court’s “retroactivity” doctrine, which came into being somewhat less than six years ago in Linkletter v. Walker, 381 U. S. 618 (1965). That doctrine was the product of the Court’s disquietude with the impacts of its fast-moving pace of constitutional innovation in the criminal field. Some members of the Court, and I hâve corne to regret that I was among them, ini-tially grasped this doctrine as a way of limiting the reach of decisions that seemed to them fundamentally un-sound. Others rationalized this resort to prospectivity as a “technique” that provided an “impetus ... for the implémentation of long overdue reforms, which otherwise could not be practicably effected.” Jenkins v. Dela-ware, 395 U. S. 213, 218 (1969). The upshot of this confluence of viewpoints was that the subséquent course of Linkletter became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim. See my dissenting opinion in Desist n. United States, 394 U. S. 244, 256-257 (1969). See also United States v. United States Coin Æ Currency, post, p. 728 (appendix to concurring opinion of Brennan, J.). It was this train of events that impelled me to suggest two Terms ago in Desist that the time had corne for us MACKEY v. UNITED STATES 677 667 Opinion of Harlan, J. to pause to consider just where these haphazard develop-ments might be leading us. That is what I had thought underlay the taking of these cases, and their companions, United States v. United States Coin & Currency, post, p. 715, and Hill v. California, post, p. 797. Regrettably, however, this opportunity has largely eventuated in little more than a reaffirmation of the posULinkletter developments. What emerges from today’s decisions is that in the realm of constitutional adjudication in the criminal field the Court is free to act, in effect, like a législature, mak-ing its new constitutional rules wholly or partially rétroactive or only prospective as it deems wise. I completely disagree with this point of view. While I do not subscribe to the Blackstonian theory that the law should be taken to hâve always been what it is said to mean at a later time, I do believe that whether a new constitutional rule is to be given rétroactive or simply prospective effect must be determined upon principles that comport with the judicial function, and not upon considérations that are appropriate enough for a legislative body. I At the outset, I think it is clear that choosing a bind-ing, generally applicable interprétation of the Constitution présents a problem wholly different from that of choosing whether to apply the rule so evolved “retro-actively” to other cases arising on direct review. In adopting a particular constitutional principle, this Court very properly weighs the nature and purposes of various competing alternatives, including the extent to which a proposed rule will enhance the integrity of the criminal process and promote the efficient administration of justice, as well as the extent to which justifiable expectations hâve grown up surrounding one rule or another. Indeed, it is this very process of weighing such 678 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. factors that should constitute the core of our task in giving concrète embodiment to those constitutional com-mands that govern the procedures by which the State and Fédéral Governments enforce their criminal laws. But we possess this awesome power of judicial review, this duty to bind coordinate branches of the fédéral System with our view of what the Constitution dictâtes, only because we are a court of law, an appellate court charged with the responsibility of adjudicating cases or controversies according to the law of the land and because the law applicable to any such dispute necessarily includes the Fédéral Constitution. That is the classic explana-tion for the basis of judicial review, an explanation first put forth by Chief Justice Marshall in Marbury v. Madi-son, 1 Cranch 137, 177—178 (1803), and from that day to this the sole continuing rationale for the exercise of this judicial power: “Certainly ail those who hâve framed written constitutions contemplate them as forming the funda-mental and paramount law of the nation .... “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of neces-sity expound and interpret that rule. If two laws conflict with each other, the courts must décidé on the operation of each. “If then the courts are to regard the constitution ; and the constitution is superior to any ordinary act of the législature; the constitution, and not such ordinary act, must govern the case to which they both apply.” We announce new constitutional rules, then, only as a corrélative of our dual duty to décidé those cases over MACKEY v. UNITED STATES 679 667 Opinion of Harlan, J. which we hâve jurisdiction and to apply the Fédéral Constitution as one source of the matrix of governing legal rules. We cannot release criminals from jail merely because we think one case is a particularly appropriate one in which to apply what reads like a general rule of law or in order to avoid making new legal norms through promulgation of dicta. This serious interférence with the corrective process is justified only by necessity, as part of our task of applying the Constitution to cases before us. Simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from this model of judicial review. If we do not résolve ail cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at ail. If there is no need for an anti-majoritarian judicial control over the content of our legal System in nine cases precisely like that presented by Mr. Chimel’s dispute with the State of California, it is hard to see the necessity, wisdom, or justification for imposing that control in the Chimel case itself. In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that hâve not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of législation. We apply and definitively interpret the Constitution, under this view of our rôle, not because we are bound to, but only because we occasionally deem it appropriate, useful, or wise. That sort of choice may permissibly be made by a législature or a council of révision, but not by a court of law. The notion that cases before us on direct review need not be adjudicated in accordance with those legal princi- 680 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. pies governing at the time we are possessed of jurisdiction in the case entails additional significant untoward conséquences. By this doctrine ail other courts in this country are, in effect, reduced largely to the rôle of automatons, directed by us to apply mechanistically ail then-set-tled fédéral constitutional concepts to every case before them. No longer do the inferior courts—and, in the constitutional realm, ail courts are inferior to us—bear responsibility for developing or interpreting the Constitution. For it is a necessary corollary of this current retroactivity doctrine that an inferior court errs when it arrives at a resuit which this Court subsequently adopts but later décidés must operate prospectively only. See my dissent in Desist, 394 U. S., at 259. Cf. United States N. White, post, p. 754 (Part II), and my dissenting opinion in that case, post, p. 768. See also United States v. United States Coin & Currency, post, p. 730 (White, J., dissenting). Although it is necessary for the proper functioning of the fédéral System that this Court possess the last word on issues of fédéral constitutional law, it is intolérable that we take to ourselves the sole ability to speak to such problems. Refusai to apply new constitutional rules to ail cases arising on direct review may well substantially deter those whose financial resources are barely sufficient to withstand the costs of litigating to this Court, or attorneys who are willing to make sacrifices to perform their pro-fessional obligation in its broadest sense, from asserting rights bottomed on constitutional interprétations different from those currently prevailing in this Court. More importantly, it tends to eut this Court loose from the force of precedent, allowing us to restructure artificially those expectations legitimately created by extant law and thereby mitigate the practical force of stare decisis, Link-letter v. Walker, 381 U. S., at 644 (Black, J., dissenting), a force which ought properly to bear on the MACKEY v. UNITED STATES 681 667 Opinion of Harlan, J. judicial resolution of any legal problem. Cf. Moragne n. States Marine Lines, 398 U. S. 375, 403 (1970). One could catalogue virtually ad infinitum what I view as unacceptable ancillary conséquences of this aspect of the Court’s ambulatory retroactivity doctrine. For me, the fact that this doctrine entails an inexplicable and unjustifiable departure from the basic principle upon which rests the institution of judicial review is sufficient to render it untenable. I continue to believe that a proper perception of our duties as a court of law, charged with applying the Constitution to résolve every legal dispute within our jurisdiction on direct review, mandates that we apply the law as it is at the time, not as it once was. Inquiry into the nature, purposes, and scope of a particular constitutional rule is essential to the task of deciding whether that rule should be made the law of the land. That inquiry is, however, quite simply irrelevant in deciding, once a rule has been adopted as part of our legal fabric, which cases then pending in this Court should be governed by it. II Of the cases presently under discussion, only Williams involves direct review of a nonfinal criminal judgment. The other two, Elkanich and Mackey, were brought here by persons in fédéral custody, seeking release through issuance of a writ of habeas corpus.1 At the time their 11 realize, of course, that state prisoners are entitled to seek release via habeas corpus under 28 U. S. C. § 2241, while fédéral prisoners technically utilize what is denominated a motion to vacate judgment under 28 U. S. C. § 2255. However, our cases make these remedies virtually congruent and the purpose of substituting a motion to vacate for the traditional habeas action in the fédéral System was simply to alter one minor jurisdictional basis for the writ. See United States v. Hayman, 342 U. S. 205 (1952). As I do not propose to make any distinction, for retroactivity purposes, 682 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. convictions became final, there was no constitutional error in the conviction of either. Since that time subséquent decisions of this Court hâve formulated new constitutional rules that invalidate the procedures like those involved in their trials. While, as I hâve just stated, I think it clear what law should be applied to nonfinal convictions here on direct review, the choice of law problem as it applies to cases here on habeas seems to me a much more difficult one. However, that choice, in my view, is also one that can be responsibly made only by focusing, in the first instance, on the nature, function, and scope of the adju-dicatory process in which such cases arise. The relevant frame of reference, in other words, is not the purpose of the new rule whose benefit the petitioner seeks, but instead the purposes for which the writ of habeas corpus is made available. As I first pointed out in my dissent in Desist, 394 U. S., at 260-261, this Court’s function in reviewing a decision allowing or disallowing a writ of habeas corpus is, and always has been, significantly different from our rôle in reviewing on direct appeal the validity of non-final criminal convictions. While the entire theoretical underpinnings of judicial review and constitutional supremacy dictate that fédéral courts having jurisdiction on direct review adjudicate every issue of law, including fédéral constitutional issues, fairly implicated by the trial process below and properly presented on appeal, fédéral courts hâve never had a similar obligation on habeas corpus. Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that between state and fédéral prisoners seeking collateral relief, I shall refer throughout this opinion to both procedures as the writ of habeas corpus, and cases before us involving such judgments as cases here on collateral review. MACKEY v. UNITED STATES 683 667 Opinion of Harlan, J. hâve become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial révision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the com-peting interest in readjudicating convictions according to ail legal standards in effect when a habeas pétition is filed. Indeed, this interest in finality might well lead to a decision to exclude completely certain legal issues, whether or not properly determined under the law pre-vailing at the time of trial, from the cognizance of courts administering this collateral remedy. This has always been the case with collateral attacks on final civil judgments.2 More immediately relevant here is the fact that 2 For example, we hâve more than once in recent years had before us a libel case in which a party was allegedly libeled and brought suit for redress prior to this Court’s decision in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), where we announced a new constitutional rule governing liability in libel suits brought by public officiais. Yet no one connected with such cases has ever been heard to do so much as hint that the New York Times rule is not applicable because the conduct complained of occurred or the suit was brought before this new rule was promulgated. See, e. g., Rosenblatt v. Baer, 383 U. S. 75 (1966). Cf. Thorpe v. Housing Authority, 393 U. S. 268, 281-283 (1969). Conversely, is it not perfectly clear that, had such a party pro-cured and collected a final damage award prior to New York Times, the défendant could not hâve urged that the case be reopened solely because of our subséquent decision in that case? Absent proof of fraud or want of jurisdiction in the trial court that judgment would be res judicata and entitled to full faith and crédit throughout the land. This is not to suggest that civil and criminal collateral attack ought necessarily to be precisely congruent in the fédéral System. But certainly it illustrâtes that the law has always perceived collateral attack as a problem quite different from direct appeal. 684 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. prior to Brown v. Allen, 344 U. S. 443 (1953), fédéral courts would never consider the merits of a constitutional claim raised on habeas if the petitioner had a fair opportunity to raise his arguments in the original criminal proceeding, see my dissent in Fay v. Noia, 372 U. S. 391, 449-463 (1963), unless the petitioner attacked the constitutionality of the fédéral, Ex parte Siebold, 100 U. S. 371 (1880), or state, Crowley v. Christensen, 137 U. S. 86 (1890), statute under which he had been con-victed. See generally Bator, Finality in Criminal Law and Fédéral Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 463 (1963); Note, Developments in the Law—Fédéral Habeas Corpus, 83 Harv. L. Rev. 1040, 1042-1062 (1970). Thus, prior to Brown v. Allen, it must hâve been crystal clear that the “retroactivity” of a new constitutional rule was a function of the scope and purposes of the habeas corpus writ. Absent unusual circumstances, a new rule was not cognizable on habeas simply because of the limited scope of the writ. While the extent of inquiry into alleged constitutional error on habeas has been dras-tically expanded in the past 20 years, the retroactivity problem remains analytically constant. In my view, the issues respectively presented by the two cases I treat here that arise on collateral review (Elkanich and Mackey)— whether the new rules of the Chimel case and the Marchetti and Grosso cases should be applied “retroac-tively”—must be considered as none other than a problem as to the scope of the habeas writ. We can properly décliné to apply the Chimel rule, or the principles of Marchetti and Grosso, to the présent cases only if that is consistent with the reasons for the provision, in our fédéral legal System, of a habeas corpus proceeding to test the validity of an individual’s official confinement. Thus I am led to make some inquiry into the purposes of habeas. At the outset I must note that this faces MACKEY v. UNITED STATES 685 667 Opinion of Harlan, J. me with difficult problems. I hâve consistently pro-tested a long course of habeas decisions in this Court which, I still believe, constitute an unsound extension of the historié scope of the writ and an unfortunate display of insensitivity to the principles of federalism which underlie the American legal System. See, e. g., Fay v. Noia, 372 U. S. 391, 448 (1963) ; Sanders v. United States, 373 U. S. 1, 23 (1963); Kaufman v. United States, 394 U. S. 217, 242 (1969); Townsend v. Sain, 372 U. S. 293, 325 (1963) (Stewart, J., dissenting). If I felt free to décidé the présent cases consistently with my own views of the legitimate rôle of the Great Writ, I should hâve little difficulty. But as my views on this score hâve not commended themselves to most of my Brethren, I feel obliged to approach these two collateral cases within the framework of current habeas corpus doctrine. This is not an easy exercise, for présent habeas corpus decisions provide little assistance in fathoming the underlying under-standing of habeas corpus upon which these decisions hâve been premised. The short of the matter is that this Court has in recent times yet to produce any considered, cohérent statement of the general purposes of habeas. In considering the problem of “retroactivity” on direct review, it is possible to work from a general classic theory of judicial review, but while the spécifie uses of the habeas writ hâve greatly multiplied, the earlier perception of its general metes and bounds has been swallowed up and gone unreplaced. About the only way to proceed is to work from the bottom up, ascertaining first which issues are cognizable on habeas, and which are not, and there-after inferring what must be thought to be the nature of the writ. I start with the proposition that habeas lies to inquire into every constitutional defect in any criminal trial, where the petitioner remains “in custody” because of the judgment in that trial, unless the error committed was 415-649 0 - 72 - 49 686 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. knowingly and deliberately waived or constitutes mere harmless error. That seems to be the implicit premise of Brown v. Allen, supra, and the clear purport of Kaufman v. United States, supra. This is not to say, however, that the function of habeas corpus is to provide a fédéral forum for determining whether any individual is pres-ently “in custody in violation of the constitution . . . of the United States,” 28 U. S. C. § 2254 (1964 ed, Supp. V), in the sense that the basis for his incarcération would, under the law existing at the time a pétition is filed or adjudicated, as distinguished from the law that was applicable at the time his conviction became final, be held free of constitutional error. Cf. Meador, Habeas Corpus and the “Retroactivity” Illusion, 50 Va. L. Rev. 1115 (1964). While it has been generally, although not universally, assumed that habeas courts should apply current constitutional law to habeas petitioners before them,3 I do not believe this is or should be the correct view. First, no such proposition has ever been squarely considered and embraced by this Court, at least since the recent prolifération of criminal défendants’ protected constitutional 3 Professor Mishkin has pointed out that “pri°r to Linkletter, the criteria applied in fédéral habeas corpus proceedings were uniformly the constitutional standards in effect at the time of those proceedings, regardless of when the conviction was actually entered.” Mishkin, The Suprême Court 1964 Term—Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 78 (1965). See also, e. g., Note, Developments in the Law—Fédéral Habeas Corpus, 83 Harv. L. Rev. 1040, 1151, 1153 (1970); Sanders n. United States, 373 U. S. 1, 17 (1963); Miller v. Gladden, 341 F. 2d 972, 975 (CA9 1965). For a counter-example, see Milton v. Wainwright, 306 F. Supp. 929 (SD Fia. 1969), where a district judge adjudicating a habeas pétition declined to consider any of this Court’s decisions relating to involuntary confessions that postdated 1958, the time at which the petitioner’s murder conviction became final. See also n. 4, infra. MACKEY v. UNITED STATES 687 667 Opinion of Harlan, J. rights and the concomitant expansion of the writ.4 Moreover, applying current constitutional standards to convictions finalized while different views were ascendant appears unnecessary to achieve the ends sought by Brown and Kaufman. The primary justification given by the Court for extending the scope of habeas to ail alleged constitutional errors is that it provides a quasi-appellate review function, forcing trial and appellate courts in both the fédéral and state System to toe the constitutional mark. See Kaufman n. United States, 394 U. S., at 226. However, the opinion in Kaufman itself concédés that there is no need to apply new constitutional rules on habeas to serve the interests promoted by that decision. 394 U. S., at 229. Further, as I explain in the margin below,5 Congress, in at least one significant 4 Arguably, Reck n. Pâte, 367 U. S. 433 (1961), tacitly holds that habeas pétitions must be judged in accordance with current law. The Court there directed the issuance of the writ on the ground that petitioner’s conviction, which became final in 1936, had been pro-cured by the introduction into evidence of an illegally obtained confession, relying heavily on cases decided by this Court subséquent to 1936. The District Court, in denying relief, had clearly held that the admissibility of his confession was to be judged by standards prevail-ing in 1936. United States ex rel. Reck v. Ragen, 172 F. Supp. 734, 745-746 (ND 111. 1959). However, this choice of law problem was not expressly adverted to and the case arose before this Court produced the recent enlargement of new constitutional rules of criminal procedure. 5 In 1966, Congress amended the habeas statutes to deal with this Court’s discussion in Sanders v. United States, 373 U. S. 1 (1963), of res judicata principles as they apply to habeas corpus. One subsection of that new statute provides: “In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Suprême Court of the United States on an appeal or review . . . of the decision of such State court, shall be conclusive as to ail issues of fact or law . . . actually adjudicated by the Suprême Court therein, unless the applicant . . . shall plead and the court shall find the existence of a material and controlling 688 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. regard, seems plainly to hâve disapproved the notion that supervening constitutional interprétation ought to apply on habeas involving state convictions. Clearly, it is at least fair to regard this issue as not yet settled by this Court. Consequently, I go on to inquire how it ought to be resolved. For me, with a few exceptions, the relevant competing policies properly balance out to the conclusion that, given the current broad scope of constitutional issues cognizable on habeas, fact which did not appear in the record of the proceeding in the Suprême Court [and could not hâve been put in by exercising due diligence].” 28 U. S. C. §2244 (c) (1964 ed., Supp. V) (emphasis added). Unless one is to read ‘Tact” as including a change in the law, it would seem that Congress has provided in these circumstances for finality as to legal déterminations. That “fact” is properly read nar-rowly seems the better view in light of subsections (a) and (b) which permit a subséquent habeas pétition (where there was no Suprême Court review) if it présents a “new ground” or “a factual or other ground not adjudicated on the [prior] hearing.” Although the legislative history is extremely sparse, it fully supports this read-ing. Both the House and Senate committee reports accompanying these amendments stated that the purpose of the reformulation of § 2244 was to introduce a greater measure of finality into the law by providing for a qualified application of the res judicata concept. See H. R. Rep. No. 1892, 89th Cong, 2d Sess, 3, 8 (1966) ; S. Rep. No. 1797, 89th Cong, 2d Sess, 2 (1966). There was no relevant floor debate on these amendments. Nor do I think the converse inference can properly be drawn that, if Congress provided legal finality for those prisoners whose convictions had been affirmed by us, it intentionally determined that other convicts should be able to avail themselves of ail new constitutional rules on habeas. The language of subsections (a) and (b) certainly does not compel such a conclusion. The congressional committee reports neither state nor fairly imply that these amendments were designed to achieve the maximum feasible or désirable finality in habeas proceedings. Most important, it is difficult to imagine what would be the rationale for such a distinction merely between those who hâve and hâve not, at some time in the remote past, had full review of their cases in this Court. MACKEY v. UNITED STATES 689 667 Opinion of Harlan, J. it is sounder, in adjudicating habeas pétitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of ail these cases on the basis of intervening changes in constitutional interprétation. I do not mean to neglect the force of countervailing contentions. Assuring every state and fédéral prisoner a forum in which he can continually litigate the cur-rent constitutional validity of the basis for his conviction tends to assure a uniformity of ultimate treat-ment among prisoners; provides a method of correcting abuses now, but not formerly, perceived as severely detri-mental to sociétal interests; and tends to promote a rough form of justice, albeit belated, in the sense that current constitutional notions, it may be hoped, ring more “correct” or “just” than those they discarded. In my view, however, these interests are too easily overstated. Some discrimination must always exist in the legal treatment of criminal convicts within a System where the governing law is continuously subject to change. And it has been the law, presumably for at least as long as anyone currently in jail has been incarcerated, that procedures utilized to convict them must hâve been fundamentally fair, that is, in accordance with the command of the Fourteenth Amendment that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” Twining v. New Jersey, 211 U. S. 78 (1908). Moreover, it is too easy to suggest that constitutional updating is necessary in order to assure that the System arrives only at “correct” results. By hypothesis, a final conviction, state or fédéral, has been adjudicated by a court cognizant of the Fédéral Constitution and duty bound to apply it. To argue that a conclusion reached by one of these “inferior” courts is somehow forever erroneous because years later this Court took a different view of the relevant constitutional com- 690 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. mand carries more emotional than analytic force. No one has put this point better than Mr. Justice Jackson, in his concurring opinion in Brown v. Allen, 344 U. S., at 540: “[R]eversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a sub-stantial proportion of our reversais of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.” More importantly, there are operative competing poli-cies in this area which I regard as substantial. It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view. See, e. g., Fay v. Noia, 372 U. S., at 445 (Clark, J., dissenting) ; Spencer v. Texas, 385 U. S. 554, 583 (1967) (Warren, C. J., concurring and dissenting). See also Bator, Finality in Criminal Law and Fédéral Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146-151 (1970). As I hâve stated before, “Both the individual criminal défendant and society hâve an interest in insuring that there will at some point be the certainty that cornes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community.” Sanders v. United States, 373 U. S., at 24-25 (Harlan, J., dissenting). At some point, the criminal process, if it is to func-tion at ail, must turn its attention from whether a man ought properly to be incarcerated to how he is to MACKEY v. UNITED STATES 691 667 Opinion of Harlan, J. be treated once convicted. If law, criminal or otherwise, is worth having and enforcing, it must at some time provide a definitive answer to the questions litigants présent or else it never provides an answer at ail. Surely it is an unpleasant task to strip a man of his freedom and subject him to institutional restraints. But this does not mean that in so doing, we should always be halting or tentative. No one, not criminal défendants, not the judicial System, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his con-tinued incarcération shall be subject to fresh litigation on issues already resolved. A rule of law that fails to take account of these finality interests would do more than subvert the criminal process itself. It would also seriously distort the very limited resources society has allocated to the criminal process. While men languish in jail, not uncommonly for over a year, awaiting a first trial on their guilt or innocence, it is not easy to justify expending substantial quantities of the time and energies of judges, prosecutors, and defense lawyers litigating the validity under présent law of criminal convictions that were perfectly free from error when made final. See Friendly, supra, at 148-149. This drain on society’s resources is compounded by the fact that issuance of the habeas writ compels a State that wishes to continue enforcing its laws against the successful petitioner to relitigate facts buried in the remote past through présentation of witnesses whose memories of the relevant events often hâve dimmed. This very act of trying stale facts may well, ironically, produce a second trial no more reliable as a matter of getting at the truth than the first. See Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 384 (1964). In sum, while the case for continually inquiring into the current constitutional validity of criminal convictions 692 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. on collateral attack is not an insubstantial one, it is by no means overwhelming. Most interests such a doctrine would serve will be adequately protected by the current rule that ail constitutional errors not waived or harmless are correctible on habeas and by defining such errors according to the law in effect when a conviction became final. Those interests not served by this intermediate position are, in my view, largely overridden by the interests in finality. Although not necessary to the resolution of either of the two collateral cases now here, for sake of complete-ness I venture to add that I would make two exceptions to this general principle. First, the above discussion is written only with new “procédural due process” rules in mind, that is, those applications of the Constitution that forbid the Government to utilize certain techniques or processes in enforcing concededly valid sociétal proscriptions on individual behavior.6 New “substan-tive due process” rules, that is, those that place, as a matter of constitutional interprétation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,7 must, in my view, be placed on a different footing. As I noted above, the writ has historically 61 hâve in mind, of course, decisions such as Gideon n. Wain-wright, 372 U. S. 335 (1963); Mapp v. Ohio, 367 U. S. 643 (1961); Miranda v. Arizona, 384 U. S. 436 (1966); Chimel v. California, 395 U. S. 752 (1969). 7 For example, Street n. New York, 394 U. S. 576 (1969) ; Stanley v. Georgia, 394 U. S. 557 (1969) ; Griswold v. Connecticut, 381 U. S. 479 (1965); Loving n. Virginia, 388 U. S. 1 (1967). Some rules may hâve both procédural and substantive ramifications, as I hâve used those terms here. See, e. g., my discussion, in Part IV-C of this opinion of the divergent ways Marchetti n. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968), bear on the problems raised by today’s Fifth Amendment cases. MACKEY v. UNITED STATES 693 667 Opinion of Harlan, J. been available for attacking convictions on such grounds.8 This, I believe, is because it represents the clearest instance where finality interests should yield. There is little sociétal interest in permitting the criminal process to rest at a point where it ought properly never to repose. Moreover, issuance of the writ on substantive due process grounds entails none of the adverse collateral conséquences of retrial I hâve described above. Thus, the obvious interest in freeing individuals from punishment for conduct that is constitutionally protected seems to me sufficiently substantial to justify applying current notions of substantive due process to pétitions for habeas corpus. See generally Part II of my opinion for the Court in United States v. United States Coin & Currency, post, p. 722. Secondly, I think the writ ought always to lie for claims of nonobservance of those procedures that, as so aptly described by Mr. Justice Cardozo in Palko v. Connecticut, 302 U. S. 319, 325 (1937), are “implicit in the concept of ordered liberty.” Typically, it should be the case that any conviction free from fédéral constitutional error at the time it became final, will be found, upon re-flection, to hâve been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understand-ing of the bedrock procédural éléments that must be found to vitiate the fairness of a particular conviction. 8 See, e. g., Ex parte Siebold, 100 U. S. 371 (1880); Crowley v. Christensen, 137 U. S. 86 (1890); Yick Wo v. Hopkins, 118 U. S. 356 (1886). And see cases collected in Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 384 n. 30 (1964), and the discussion therein of the finality implications such instances présent. 694 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. For example, such, in my view, is the case with the right to counsel at trial now held a necessary condition precedent to any conviction for a serious crime. See my sepa-rate opinion in Gideon v. Wainwright, 372 U. S. 335, 349 (1963), where I concurred in conferring this right on a state prisoner, seeking state habeas corpus, on the grounds that this “new” rule was mandated by Palko. Hence, I would continue to apply Gideon itself on habeas, even to convictions made final before that decision was rendered. Other possible exceptions to the finality rule I would leave to be worked out in the context of actual cases brought before us that raise the issue. Subséquent reflection upon what I wrote in Desist, where I undertook to expose in a preliminary way some of the considérations I thought ought to govern the problem of deciding which, if any, new constitutional rules should be held cognizable in habeas proceedings, leads me to these additional observations. There I ten-tatively suggested we might apply those new rules that “significantly improve the pre-existing fact-finding procedures” mandated by the Fédéral Constitution. 394 U. S., at 262. Cf. Mishkin, The Suprême Court 1964 Term—Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 77-101 (1965). As indicated above, I am now persuaded that those new rules cognizable on habeas ought to be defined, not by the “truth-determining” test, but by the Palko test. My reasons are several. First, adhérence to precedent, particularly Kaufman v. United States, must ineluctably lead one to the conclusion that it is not a principal purpose of the writ to inquire whether a criminal convict did in fact commit the deed alleged. Additionally, recent decisions of this Court, e. g., Coleman v. Alabama, 399 U. S. 1 (1970), hâve revealed just how marginally effective are some new rules purportedly aimed at improving the fact- MACKEY v. UNITED STATES 695 667 Opinion of Harlan, J. finding process. I cannot believe that the interest in finality is always outweighed by the interests protected in cases like Coleman. Cf. Spencer v. Texas, 385 U. S., at 583 (Warren, C. J., concurring and dissenting). I believe Palko more correctly marks the tipping point of finality interests, not only in terms of divining which new rules should apply on habeas, but also in its reminder that a particular rule may be more or less crucial to the fairness of a case depending on its own factual setting. Finally, I find inherently intractable the purported distinction between those new rules that are designed to improve the factfinding process and those designed principally to further other values. For a perfect example, note the plurality’s dif-ficulty today in explaining, on that basis, retroactivity decisions such as Johnson n. New Jersey, 384 U. S. 719 (1966); Stovall v. Denno, 388 U. S. 293 (1967); and DeStefano v. Woods, 392 U. S. 631 (1968). Williams v. United States, ante, at 655-656, n. 7. Secondly, in Desist I went to some lengths to point out the inévitable difficulties that will arise in attempting “to détermine whether a particular decision has really announced a ‘new’ rule at ail or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which hâve been previously considered in the prior case law.” 394 U. S., at 263. See generally id., at 263-269. I remain fully cognizant of these problems and realize they will produce some difficulties in administering the writ, but believe they would be greatly ameliorated by adéquate récognition of the principle of finality in the operation of the criminal process. III I realize, of course, that this opinion, which is already unfortunately lengthy, has thus far not been directly responsive to the plurality opinions announced in these 696 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. cases. Essentially this is because I do not perceive the issues raised by these cases from the same perspective as my Brethren. Certain aspects of the other opinions announced today do, however, fairly call for a response both because they contain some small seeds of a challenge to what I hâve said above and because I think, with respect, that what is written today by some of those who would give virtually unlimited sweep to this “retroactivity” doctrine strikingly illuminâtes the faulty premises of the thinking in this entire field. In the plurality opinions in Williams and Elkanich, and Mackey the only challenge I perceive to my views is the single assertion that my analysis is untenable because unsupported by precedent. Williams n. United States, ante, at 651-652. Truly, this is a remarkable claim. For Linkletter v. Walker, supra, the wellspring of the cur-rent retroactivity doctrine, took as its point of de-parture the very distinction between direct review and collateral attack which I hâve argued is crucial to any analysis in this field, a distinction which the Court now firmly discards. Further, as the dissenting opinion in United States v. United States Coin & Currency, post, at 735, points out, in an analogous situation, the legislative repeal of a criminal statute, “the judge-made rule was that those whose convictions had been finally affirmed when repeal took place received no benefit from the new rule ; but repeal of a statute abated pending prosecutions and required reversai of convictions still on appeal when the law was changed.” In other words, the précisé distinction I hâve urged between direct review and collateral attack, based not on the nature of the act of chang-ing the law or of the new law thus pronounced but, instead, on the nature of the adjudicatory context in which the claim of legal error was presented has consistently MACKEY v. UNITED STATES 697 667 Opinion of Harlan, J. been the model for the judicial process. Indeed, it would seem that the only precedential support for the position that prevails today is that conflicting and confusing flurry of “retroactivity” opinions that commenced less than five years ago with Johnson v. New Jersey, 384 U. S. 719 (1966). Other aspects of the dissent in Coin & Currency, supra, might, it seems to me, be construed as a further challenge to the views I hâve expressed here since that opinion is subscribed to by a majority of those members of the Court who hâve determined that, for purposes of deciding whether new search and seizure rules apply to subséquent cases arising in fédéral courts, the process invoked by the litigants is irrelevant. In any event, I find the implications of the analysis underlying that dissent startling. For example, that Congress currently provides that statutory repeal shall not abate pending prosecutions or require reversai of nonfinal convictions seems to me a singularly unhelpful bit of information. We sit as a court of law, not a council of révision. Our powers of judicial review are judicial, not legislative, in nature. The assertion that this evidence is relevant data for resolving the problems at hand serves at best only to make explicit that which I hâve attempted to demon-strate in Part I of this opinion—that the retroactivity analysis currently ascendant in this Court proceeds on the false and unacceptable premise that constitutional interprétation is not purely a judicial, but, rather, some-thing akin to a legislative, process. If, in fact, that premise is true we ought not to be writing retroactivity opinions but instead relinquishing some of our powers of judicial review. The dissenting opinion attempts to palliate its invocation of the legislative process by alternately suggesting that the typical statutory rule is, because widespread, part 698 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. of our fabric of “positive law” and the issue, therefore, is whether this Court should carry this policy over to the realm of constitutional interprétation. Three cases are cited that allegedly reveal we are not foreclosed from taking this course. The short answer to ail this remains the same: the distinction between judicial and legislative power is equally woven deeply into the fabric of our positive law. So, too, is the notion that this Court de-finitively interprets the Constitution only because its rôle as a court of law requires it to do so. It is not surpris-ing, then, to discover upon doser analysis that the cited cases do not bear the heavy weight placed on them. Gelpcke n. City of Dubuque, 1 Wall. 175 (1864), holds only that state courts may be compelled in some situations by particular provisions of the Fédéral Constitution to apply certain new rules prospectively only. No such claim has ever been made about these new constitutional rules of criminal procedure. Great Northern R. Co. v. Sunburst OU & Refining Co., 287 U. S. 358 (1932), merely holds that the Fédéral Constitution imposes no barrier to a state court’s decision to apply a new state common-law rule prospectively only. Is it not sufficient answer to the dissenters’ final assertion of precedential support to point out that Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371 (1940), was a collateral attack on a civil judgment already otherwise final and entitled to res judicata effect? And, further, that it was written by the same Chief Justice, Hughes, who had held six years earlier in United States n. Chambers, 291 U. S. 217 (1934), that repeal of the Eighteenth Amendment abated ail prosecutions begun, and required reversai on direct review of ail convictions obtained, under statutes dépendent for their constitutionality on the repealed amendment, yet did not affect final convictions so obtained? MACKEY v. UNITED STATES 699 667 Opinion of Harlan, J. IV Because my compréhension of the relevant issues diverges so substantially from that of the Court it is necessary for me to discuss separately my view as to the proper disposition of each of these three cases. A Williams v. United States (direct review). As this case is here on direct review, I would apply to its resolution the rule enunciated in Chimel v. California, 395 U. S. 752. The plurality correctly describes the salient facts in this case at n. 2 of its opinion, ante, at 650-651, and I agréé they plainly reveal a violation of Chimel. Indeed, the Ninth Circuit panel below, although it held Chimel nonretroactive, explicitly found the search here involved inconsistent with the dictâtes of Chimel. 418 F. 2d 159, 161 (CA9 1969). Consequently, I would reverse the judgment below and remand with instructions to vacate the judgment of conviction. B Elkanich v. United States (collateral review). I agréé, but for wholly different reasons, with the Court’s view, expressed in n. 2 of its opinion, ante, at 651, that we need not evaluate the search of Elkanich’s apartment in light of the precepts of Chimel. His conviction be-came final five years prior to ChimeVs promulgation, and prevailing law at that time certainly validated the search here involved. See United States v. Rabinowitz, 339 U. S. 56 (1950), and Harris v. United States, 331 U. S. 145 (1947). An appraisal of the facts surrounding this search leads me quite easily to conclude that the procedures used in obtaining this conviction were not so fundamentally devoid of the necessary éléments of pro- 700 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. cedural due process as to require upsetting this conviction in spite of the fact that it was perfectly lawful when made final. The agents here clearly had probable cause to arrest petitioner, were not undertaking a fishing expédition for any evidence they might find but, rather, were looking for spécifie items that they had reason to believe might be concealed in various places around the premises and, indeed, generally limited their search to areas indi-cated by petitioner. I would affirm the judgment below. C Mackey v. United States (collateral review). Petitioner in this case seeks relief from confinement by way of habeas. At his trial for evading payment of income taxes, part of the Government’s case in chief consisted of the introduction of 60 wagering excise tax returns. At the time his conviction became final in 1965, the introduction of these statements would hâve been permissible under the authority of United States n. Kahriger, 345 U. S. 22 (1953). I find it unnecessary to inquire whether it inevitably follows from the new rule enun-ciated in Marchetti and Grosso that such a procedure would today be held an unacceptable abridgment of petitioner’s Fifth Amendment right to be free of com-pulsory self-incrimination. For, even assuming the latter cases, if applicable, would produce a different resuit, I cannot conclude that this change in the law would be sufficient to entitle petitioner to the issuance of a writ of habeas corpus. Mackey is not asserting that the conduct for which he is being punished, evading payment of his fédéral income taxes, has been held to be constitutionally immune from punishment. In this regard, Mackey’s claim differs from that raised by the respondent in Coin & Currency, also decided today, where Marchetti and Grosso do operate to render Congress powerless to punish MACKEY v. UNITED STATES 701 667 Opinion of Harlan, J. the conduct there at issue. Instead, Mackey’s claim is that the procedures utilized in procuring his conviction were vitiated by the Marchetti and Grosso decisions. Since matters of procedure rather than substance are involved, see Part II of this opinion, I would apply to the resolution of this habeas pétition the law in effect at the time Mackey’s conviction became final, absent a showing that the procedures employed were fundamen-tally unfair. While Kahriger did indeed, in my judgment, rest upon an “excessively narrow” view of the scope of the privilège against self-incrimination, I cannot say that hindsight reveals that judgment to hâve been so grossly erroneous as to amount to the perpétration of an inexcusable inequity against Mackey in these circumstances. Despite our rejection of it as a matter of Fifth Amendment policy, the prior justification of the Government’s activity in this area—that persons affected could avoid incrimination by ceasing to engage in illégal activities—is not without some force. Although the question is, for me, not free of difficulty, I would affirm the judgment below for the reasons stated above. V In conclusion, the Court in deciding these cases seems largely to hâve forgotten the limitations that accompany its functions as a court of law. For the retroactivity doctrine announced today bespeaks more considérations of policy than of legal principle. Treating direct and collateral review as if they were of one piece seems to me faulty analysis, ignoring, as it does, the jurispru-dential considérations that differentiate the two kinds of adjudicatory functions. As a court of law we hâve no right on direct review to treat one case difïerently from another with respect to constitutional provisions applicable to both. As regards cases coming here on collateral review, the problem of retroactivity is in truth 415-649 0 - 72 - 50 702 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. none other than one of resettling the limits of the reach of the Great Writ, which under the recent decisions of this Court has been given almost boundless sweep.9 Until the Court is prepared to do this I can see no really satisfactory solution to the retroactivity problem. Meanwhile, I very much regret to see the existing free-wheeling approach to that problem now rewritten into the jurisprudence of this Court. I would affirm the judgments in Nos. 36 and 82 and reverse the judgment in No. 81 upon the premises dis-cussed in this opinion. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, concurring in the judgment. Three years ago we held that the fédéral wagering tax statutes, 26 U. S. C. § 4401 et seq., subjected those to whom they applied to such a real and substantial danger of self-incrimination that those statutes could “not be employed to punish criminally those persons who hâve defended a failure to comply with their requirements with a proper assertion of the privilège against self-incrimination.” Marchetti v. United States, 390 U. S. 39, 42 (1968); Grosso v. United States, 390 U. S. 62 (1968). This case présents the question what, if any, use the Government is entitled to make of wagering excise tax returns, filed pursuant to the statutory scheme, in a prosecution for income tax évasion. Since I believe the Fifth Amendment does not prevent the use of such returns to show a likely source of unreported income in a criminal prosecution for income tax évasion, I concur in the judgment of the Court.1 9 For example, though correct in its resuit, I am now of the view that Linkletter would hâve been better decided had it simply held that fédéral habeas corpus does not lie for claimed errors in the introduction of illegally seized evidence. 1 This view of the case makes it unnecessary for me to décidé whether petitioner’s conviction should be examined without regard MACKEY v. UNITED STATES 703 667 Brennan, J., concurring in judgment I The relevant facts may be briefly stated. As required by statute, petitioner from 1956 through 1960 filed monthly wagering excise tax returns showing his name, address, and the gross amount of wagers accepted by him during the month in question.2 He was subsequently indicted for willfully attempting to évadé payment of his income taxes for those years. 26 U. S. C. § 7201. At trial, the Government used the wagering tax returns to show that the gross amount of wagers reported, less the expenses of petitioner’s business as reported on his annual income tax returns, was greater than the profits from gambling reported on those same annual returns. The Court of Appeals affirmed over petitioner’s claim that the returns were inflammatory, préjudiciai, and irrelevant. 345 F. 2d 499 (CA7 1965). After our decisions in Marchetti v. United States, supra, and Grosso v. United States, supra, petitioner filed an application for postconviction relief on the ground that use of the wagering tax returns was barred by the Fifth Amendment. The application was denied by the District Court in an unreported opinion, and the déniai was affirmed by the Court of Appeals. 411 F. 2d 504 (CA7 1969). II At first glance, petitioner’s argument appears com-pellingly simple. Since the information required of him under the fédéral wagering tax statutes presented a real and substantial danger of subjecting him to criminal prosecution for his gambling activities, the Government to the standards embodied in Marchetti and Grosso. The balance of this opinion is written on the assumption that Marchetti and Grosso are applicable. 2 See 26 U. S. C. §6011 (a); Treas. Reg. §44.6011 (a)-l (a), 26 CFR §44.6011 (a)-l (a). 704 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. lacked the power to compel the information absent a waiver of his Fifth Amendment privilège unless it provided the necessary immunity from prosecution. Marchetti v. United States, 390 U. S. 39 (1968); Grosso n. United States, 390 U. S. 62 (1968); Heike v. United States, 227 U. S. 131, 143-144 (1913); Counselman v. Hitchcock, 142 U. S. 547, 584-586 (1892). Since petitioner filed the wagering tax returns under threat of criminal prosecution for failure to do so, 26 U. S. C. § 7203, and since he never knowingly waived his Fifth Amendment privilège, see Grosso v. United States, supra, at 70-71, he is entitled to the immunity required by the Fifth Amendment. Adams v. Maryland, 347 U. S. 179, 181 (1954). Therefore, petitioner argues, the Government was foreclosed from using the information provided by him on the wagering tax returns against him in a criminal prosecution for évasion of the income tax. But in Marchetti and Grosso, we dealt with the question whether, in light of possible uses of testimonial evidence sought to be compelled over a claim of privilège, the Fifth Amendment allows the individual concerned to withhold the evidence without penalty. In the présent case, however, we deal with the scope of immunity required when the privilège is claimed and the evidence is nevertheless compelled. This distinction, in my view critical, is overlooked by petitioner. Where testimony has been refused, adjudication of necessity must take place in something of a vacuum. Although an individual may not “draw a conjurer’s circle around the whole matter” by refusing to provide any explanation why the information sought might be incriminating, United States v. Sullivan, 274 U. S. 259, 264 (1927), he need not provide the incriminating evidence in order to demonstrate that the privilège was validly invoked, Hoffman v. United States, 341 U. S. 479, 486 (1951). In such circumstance, sanctions may be applied for re- MACKEY v. UNITED STATES 705 667 Brennan, J., concurring in judgment fusai to testify only if it is “ ‘perfectly clear, from a care-ful considération of ail the circumstances in the case . . . that the answer[s] cannot possibly hâve [a] tendency’ to incriminate.” Id., at 488, quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881) (emphasis in original). But where the individual has succumbed to compulsion and provided the information sought, finer analytical tools may be employed. “A factual record showing, for example, the substance of the individuaTs compelled testimony, the way that testimony was subsequently used by the prosecutor, and the crime for which the individual was ultimately prosecuted, provides important considérations to anchor and inform the constitutional judgment.” Piccirillo v. New York, 400 U. S. 548, 558 (1971) (Brennan, J., dissenting). Thus, even when the privilège against self-incrimination permits an individual to refuse to answer questions asked by the Government, if false answers are given the individual may be prosecuted for making false statements. United States v. Knox, 396 U. S. 77, 80-83 (1969). The flaw in petitioner’s argument lies in its misunder-standing of Marchetti and Grosso as applied to a situation where testimonial evidence has been compelled over a claim of privilège. For we did not, in those cases, cast any doubt upon the power of the United States to impose taxes on unlawful, as well as on lawful activities. 390 U. S., at 44; see United States v. Sullivan, 274 U. S., at 263. Nor did we suggest that the Fifth Amendment would make it impossible for Congress to construct an enforceable statutory scheme for reporting by individuals of their illicit gains. See 390 U. S., at 72 (Brennan, J., concurring). Rather, we noted that “[t]he laws of every State, except Nevada, in-clude broad prohibitions against gambling, wagering, and associated activities,” and that even Nevada imposed 706 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. “criminal penalties upon lotteries and certain other wagering activities taxable under [the fédéral] statutes.” Id., at 44-46. We noted that fédéral statutes prohibit the use of the mails and of Interstate commerce for many activities ancillary to wagering.3 Id., at 44. On that basis we concluded that “throughout the United States, wagering is ‘an area permeated with criminal statutes,’ and those engaged in wagering are a group ‘in-herently suspect of criminal activities.’ Albertson v. SACB, 382 U. S. 70, 79.” Marchetti, 390 U. S., at 47. Accordingly, registration and payment of the occupa-tional tax, or the filing of a wagering excise tax return that the Government required as a prerequisite to payment of the excise tax,4 would subject the individual concerned to “ ‘real and appréciable,’ and not merely ‘imaginary and unsubstantial,’ hazards of self-incrimination.” Id., at 48 ; Grosso, 390 U. S., at 64-67. Since we found the “required records” doctrine of Shapiro v. United States, 335 U. S. 1 (1948), inapplicable to the statutory requirement that a gambler admit his présent or future involvement in gambling activity, Marchetti, 390 U. S., at 55-57; Grosso, 390 U. S., at 67-69 we held that the privilège against self-incrimination was available to the petitioners as a defense to prosecution for failure to register for, report, or pay the fédéral wagering taxes.5 3 See 18 U. S. C. § 1084 (interstate transmission of wagering information), §§ 1301-1304 (conduct of lotteries by mails or broadcast-ing), § 1952 (interstate travel in aid of, inter alia, gambling), § 1953 (interstate transportation of wagering paraphernalia). 4 We were informed by the United States in Grosso that the wagering excise tax would not be accepted unless accompanied by the required return. 390 U. S., at 65. 5 In addition, we declined in both Marchetti and Grosso the Gov-ernment’s invitation to salvage the statutory scheme by imposing use restrictions on the information required. Marchetti, 390 U. S., at 58-60; Grosso, 390 U. S., at 69. The relevance of this to the issue before us is discussed infra, at 711-713. For the moment MACKEY v. UNITED STATES 707 667 Brennan, J., concurring in judgment Had the présent case arisen in the context of a fédéral investigation designed simply to uncover evidence of criminal activity, we would need to go no further.0 In such a situation, petitioner would be entitled to “absolute immunity . . . from prosecution [under fédéral lawrs] for any transaction revealed in that testi-mony.” Piccirillo v. New York, 400 U. S., at 562 (Brennan, J., dissenting) ; Counselman v. Hitchcock, 142 U. S., at 584-586. But although we recognized in Marchetti that “Congress intended information obtained as a conséquence of registration and payment of the [gambling] occupational tax to be provided to interested prosecuting authorities,” Marchetti, 390 U. S., at 58-59/ we neverthe-less concluded that the “United States’ principal interest is evidently the collection of revenue, and not the punish-ment of gamblers.” Id., at 57; see United States v. Calamaro, 354 U. S. 351, 358 (1957). This dual purpose is significant here. For while the Government may not undertake the prosecution of crime by inquiring of individuals what criminal acts they hâve lately planned or committed, it may surround a taxing or regulatory scheme with reporting requirements de-it is sufficient to note that even the imposition of use restrictions could not hâve saved the convictions at issue in those cases, for the petitioners obviously had no way of knowing, when they failed to register and file the required forms, that use restrictions might be imposed. See Murphy n. Waterfront Comm’n, 378 U. S. 52, 79-80 (1964) ; Reina n. United States, 364 U. S. 507, 514-515 (1960). 6 See n. 1, supra. 7 In Grosso, we remarked that “although there is no statutory instruction, as there is for the occupational tax, that state and local prosecuting officers be provided listings of those who hâve paid the excise tax, neither has Congress imposed explicit restrictions upon the use of information obtained as a conséquence of payment of the tax,” and that the Revenue Service in fact disseminated such information to “interested prosecuting authorities.” Grosso, 390 U. S., at 66. 708 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. signed to insure compliance with the scheme. See Marchetti, 390 U. S., at 44, 60; Grosso, 390 U. S., at 72-74 (concurring opinion). In the latter situation, the privilège may not be claimed if the danger of incrimination is only that the information required may show a violation of the taxing or regulatory scheme. Thus in Shapiro v. United States, 335 U. S. 1 (1948), we upheld a conviction based upon records of sales provided under compulsion of a régulation under the Emergency Price Control Act, 56 Stat. 23. The privilège had been claimed on the basis that the records would (as they did) provide evidence of a violation of the Act. We rejected the claim, reasoning that the Government has power to compel “ ‘suitable information of transactions which are the appropriate subjects of governmental régulation and the enforcement of restrictions validly established.’ ” Id., at 33.8 And in United States v. Sullivan, 274 U. S. 259 (1927), we rejected a claim that the privilège against self-incrimination allowed an individual whose income was earned in crime to file no form of income tax return whatsoever. Although dubious, we noted the possibility that the privilège could be claimed to excuse reporting the amount of income earned because that alone would disclose the criminal activities that had produced the income. Id., at 263-264. But neither in Sullivan nor in any other of our cases is there the slightest suggestion that an individual may refuse to disclose the income he has earned solely because such disclosure will indicate a failure to pay the taxes imposed on that income. Of course, the Government may not insulate inquiries designed to produce incriminating information merely by 8 The régulation upheld in Shapiro required only the keeping of records, and not their reporting; the information there was compelled pursuant to an administrative subpoena. But as we noted in Marchetti, this situation is constitutionally indistinguishable from a simple reporting requirement. 390 U. S., at 56 n. 14. MACKEY v. UNITED STATES 709 667 Brennan, J., concurring in judgment labeling the inquiry a necessary incident of a regulatory scheme. Where the essence of a statutory scheme is to forbid a given class of activities, it may not be enforced by requiring individuals to report their violations. See Marchetti, supra; Haynes v. United States, 390 U. S. 85 (1968); Albertson v. SACB, 382 U. S. 70 (1965). But where the statutory scheme is not designed to forbid certain acts, but only to require that they be done in a certain way, the Government may enforce its require-ments by a compulsory scheme of reporting, directed at ail who engage in those activities, and not on its face designed simply to elicit incriminating information. Shapiro v. United States, supra; see Albertson v. SACB, supra, at 77-80. Viewed in this light, then, Marchetti and Grosso are the outgrowth of two principles inapplicable to the problem at hand. The first is that when a given class of activities is, in the main, made criminal by either state or fédéral law, an individual may not be compelled to disclose whether he engages in activities within the class unless his disclosure is compensated by the requisite grant of immunity.9 Marchetti, supra; Haynes v. United States, supra; Albertson v. SACB, supra. The second is that such individuals may likewise not be compelled, absent sufficient immunity, to disclose the details of their activities within such a suspect class: for if the mere admission of engaging in any of a class of activities is sufficiently likely to lead to criminal prosecution that the privilège against self-incrimination may be invoked, 9 Since the statutory scheme in Marchetti and Grosso provided no immunity whatsoever, and since those cases arose in the context of an attempt by the Government to punish individuals for failure to disclose the information requested, we had no occasion there to détermine the précisé scope of the immunity that would be required to displace the privilège. 710 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. admission of the details of these activities is a fortiori likely to lead to incrimination. Grosso, supra. Neither of these principles, however, Controls the case at hand. The relevant class of activities “permeated with criminal statutes,” Albertson v. SACB, 382 U. S., at 79, is the class of activities related to gambling. But this case does not involve a prosecution for gambling or related activities. It involves a prosecution for income tax évasion, by use of information compelled pursuant to a scheme requiring ail those who engage in the business of accepting wagers10 to report their income twice. For the reasons discussed above, the Government may validly enforce the tax laws by a scheme of required reports, directed at ail persons engaging in certain types of activity, and requiring them to report the amount of their income so that the Government may insure that the requisite taxes hâve been paid. If such a reporting requirement raises a substantial danger of incrimination under state or fédéral statutes making criminal the activity that is being taxed, an individual may, of course, assert the privilège against self-incrimination and refuse to disclose the information sought. We so held in Marchetti and Grosso. And if the information has been compelled over a claim of privilège, application of those cases requires that the individual be protected against the use of that information in state prosecutions under the statutes making criminal the taxed activity, and to complété immunity from prosecution under fédéral statutes of like kind. Piccirillo v. New York, 400 U. S., at 561-574 (Brennan, J., dissenting) ; Adams v. Maryland, 347 U. S., at 181; Counselman v. Hitchcock, 142 U. S., at 584-586; cf. Murphy v. Waterfront Comm’n, 378 U. S. 52, 79, and n. 18 (1964). He is, in short, entitled to the protection 10 The few exceptions to this requirement are noted in Marchetti, 390 U. S., at 42. MACKEY v. UNITED STATES 711 667 Brennan, J., concurring in judgment required by the Fifth Amendment. But here the Government was entitled to demand the information that petitioner supplied—his gross income from wagering—in order to enforce the tax laws. Petitioner was entitled to claim the privilège only because of the possibility of prosecution under state or fédéral gambling laws. No such prosecution is involved here. “Once the reason for the privilège ceases, the privilège ceases.” Ullmann v. United States, 350 U. S. 422, 439 (1956). Since the United States was entitled to demand the information at issue here for the purpose to which it was eventually put, the danger that petitioner’s disclosures might also hâve been impermissibly used does not prevent their présent, legitimate use even though the danger of impermissible use would justify refusai to provide the information at ail.11 III Finally, our decisions in both Marchetti and Grosso not to attempt to salvage the statutory scheme by imposing 11 The filing of a wagering tax return (or registration as a prospective gambler) necessarily involves an admission that one has engaged in, or intends to engage in gambling. Since gambling and related activities are very likely to be criminal under state or fédéral law, the Government lacks power to compel such an admission absent the requisite grant of immunity. This was the question involved in Marchetti and Grosso. But what is relevant to the présent case is not whether petitioner was involved in criminal activity, but whether he paid the taxes imposed on his income. I hâve indicated above why I believe that the Government may enforce an otherwise unob-jectionable scheme designed to insure that individuals report the amount of their income in order to enforce the tax laws. It therefore follows that the registration and reporting requirements of the fédéral wagering tax statutes could properly be enforced under a statute granting those who complied with the requirements immunity from prosecution under fédéral statutes that outlaw gambling and related activities, and protection against the use of information con-tained in the returns in aid of prosecution under state or fédéral laws making such activities criminal. 712 OCTOBER TERM, 1970 Brennan, J., concurring in judgment 401 U. S. use restrictions do not require that, once evidence has actually been compelled, we refuse to protect a valid governmental interest by restricting use of that evidence any more than is required by the Fifth Amendment. For although we recognized in Marchetti that “the imposition of use-restrictions would directly preclude effectua-tion of a significant element of Congress’ purposes in adopting the wagering taxes,” 390 U. S., at 59, the primary basis for our refusai to impose such restrictions was that “the imposition of such restrictions would neces-sarily oblige state prosecuting authorities to establish in each case that their evidence was untainted by any connection with information obtained as a conséquence of the wagering taxes; the fédéral requirements would thus be protected only at the cost of hampering, perhaps seriously, enforcement of state prohibitions against gambling.” Ibid.12 Since a balance between effective state enforcement of gambling laws and the interests of the fédéral treasury was one to be struck by Congress, and not this Court, we declined to impose the proposed restrictions. Id., at 59-60. And in Grosso, we merely noted that it would be “inappropriate to impose such restrictions upon one portion of a statutory System, when we hâve concluded that it would be improper, for reasons discussed in Marchetti, to do so upon ‘an intégral part’ of the same System.” 390 U. S., at 69. Once again, however, different considérations apply when the question is not whether information may be compelled but rather to what uses compelled information may be put. Once the return has 12 That this was the primary basis for our refusai is evidenced by our récognition that the “United States’ principal interest is evi-dently the collection of revenue, and not the punishment of gam-blers.” 390 U. S., at 57. Absent the necessity for balancing state and fédéral interests, we would surely not hâve crippled the primary purpose of the statutes because a secondary purpose was necessarily disabled. MACKEY v. UNITED STATES 713 667 Douglas, J., dissenting been filed, prosecution under state gambling laws can take place only if the State can demonstrate that its evidence is not tainted by information derived from the incrim-inatory aspects of the return. Since disclosure once made may never be completely undone, this burden must be borne by the State regardless of what additional restrictions are imposed upon use of the return. Accord-ingly, the considérations that led us to décliné the imposition of use restrictions for the future in Marchetti and Grosso are not compelling in situations where the incriminating information has already been disclosed. Petitioner is therefore entitled to the immunity required by the Fifth Amendment, and to no more. Since I believe the Amendment is no bar to the use to which his wagering tax returns were put, I concur in the judgment of the Court. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. I had assumed that ail criminal and civil decisions involving constitutional defenses which go in favor of the défendant were necessarily rétroactive. That is to say, the Constitution has from Chief Justice Jay’s time been rétroactive,* for there were no decisions on the points prior thereto. Marchetti v. United States, 390 U. S. 39, and Grosso v. United States, 390 U. S. 62, exonerated défendants who, when they failed to file returns, were not by reason of United States v. Kahriger, 345 U. S. 22, entitled to a constitutional immunity. Why Marchetti and Grosso are entitled to relief and Mackey is not, is a mystery. It is said that Mackey’s gambling return, “like physical evidence seized in violation of a new interprétation of the Fourth Amendment, is con-cededly relevant and probative even though obtained by *See Chisholm v. Georgia, 2 Dali. 419. 714 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. the Government through means since defined by this Court as constitutionally objectionable.” The same could be said of Marchetti and Grosso. Yet their convictions were reversed. I could understand today’s decision if Marchetti and Grosso had announced only a prospective rule applicable to ail like défendants. But when the défendants in those cases are given the benefit of a new constitutional rule forged by the Court, it is not compréhensible, if justice rather than the fortuitous circumstances of the time of the trial is the standard, why ail victims of the old unconstitutional rule should not be treated equally. I can find nothing in the Constitution that authorizes some constitutional rules to be prospective and others to be rétroactive. The majority often says the test is whether a new rule affects the integrity of the factfinding process, Desist v. United States, 394 U. S. 244. Yet even that test is not applied when the majority thinks that the impact of the new rule, if applied with due regard to the Equal Protection Clause, would be “devastating.” Tehan v. Shott, 382 U. S. 406, 419. The Constitution grants this Court no such legislative powers. My views hâve been expressed in Linkletter v. Walker, 381 U. S. 618, 640, and Johnson v. New Jersey, 384 U. S. 719, 736, and I adhéré to them. I would continue to construe ail constitutional safeguards “strictly.” UNITED STATES v. U. S. COIN & CURRENCY 715 Syllabus UNITED STATES v. UNITED STATES COIN & CURRENCY CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 5. Argued February 25-26, 1969—Reargued October 20, 1970— Decided April 5, 1971 The United States brought this action for the forfeiture of money in the possession of one Angelini when he was arrested for failing to register as a gambler and to pay the gambling tax required by 26 U. S. C. §§4411, 4412, and 4901. Having found that the money had been used in violation of those laws, the District Court ordered forfeiture under 26 U. S. C. § 7302. After the Court of Appeals affirmed, the case was remanded for further considération in the light of this Court’s subséquent decisions in Marchetti v. United States, 390 U. S. 39, and Grosso v. United States, 390 U. S. 62, which held that gamblers had the Fifth Amendment right to remain silent despite the statutory requirement that they submit reports that could incriminate them. The Court of Appeals thereafter ordered the money’s return, having concluded that Angelini could assert his Fifth Amendment privilège. The Government contends that (1) the Marchetti-Grosso rationale is inapplicable to § 7302 forfeiture proceedings because under that provision any property intended for use in violating the . . . internai revenue laws is subject to forfeiture regardless of the property owner’s guilt, and (2) Marchetti and Grosso should not be given rétroactive effect. Held: 1. The Fifth Amendment privilège may properly be invoked in this case since the forfeiture statutes, when viewed in their entirety, are intended to penalize only persons significantly in-volved in a criminal enterprise. Pp. 717-722. 2. The Marchetti-Grosso rule has rétroactive effect in a forfeiture proceeding under § 7302. Pp. 722-724. 393 F. 2d 499, affirmed. Harlan, J., delivered the opinion of the Court, in which Black, Douglas, Brennan, and Marshall, JJ., joined. Black, J., filed a concurring statement, post, p. 724. Brennan, J., filed a concurring opinion, post, p. 724. White, J., filed a dissenting opinion, in which Burger, C. J., and Stewart and Blackmun, JJ., joined, post, p. 730. 716 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Jerome M. Feit argued the cause for the United States on the reargument. Philip A. Lacovara argued the cause for the United States, pro hac vice, on the original argument. On the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Francis X. Beytagh, Jr., Béatrice Rosenberg, and Lawrence P. Cohen. Anna R. Lavin reargued the cause for respondent. With her on the briefs was Edward J. Calihan, Jr. Charles Alan Wright, Marvin K. Collie, and Harry M. Reasoner filed a brief for Joseph P. Lucia as amicus curiae on the reargument. Mr. Justice Harlan delivered the opinion of the Court. After Donald J. Angelini had been convicted of failing to register as a gambler and to pay the related gambling tax required by fédéral law, 26 U. S. C. §§4411, 4412, 4901, the United States instituted the forfeiture proceeding to obtain $8,674 which Angelini had in his possession at the time of his arrest. The District Court for the Northern District of Illinois found that the money was being used in a bookmaking operation in violation of these internai revenue laws and ordered forfeiture under 26 U. S. C. § 7302 which provides: “It shall be unlawful to hâve or possess any property intended for use in violating the provisions of the internai revenue laws . . . and no property rights shall exist in any such property. . . .” When the Court of Appeals affirmed, we granted certiorari, sub nom. Angelini v. United States, 390 U. S. 204, and remanded the case for further considération in the light of our decisions in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968), which precluded the criminal conviction of gamblers who properly assert UNITED STATES v. U. S. COIN & CURRENCY 717 715 Opinion of the Court their privilège against self-incrimination as a ground for their failure to comply with these aspects of the gambling tax law. A unanimous panel of the Court of Appeals concluded that Angelini might properly assert his Fifth Amendment privilège in this forfeiture proceeding and ordered the return of the seized money. 393 F. 2d 499 (1968). Since the Court of Appeals for the Sixth Circuit subsequently came to the opposite conclusion,1 we granted the Government’s pétition for certiorari in the présent case, 393 U. S. 949 (1968), in order to résolve the conflict. The case was first argued at the 1968 Term and reargued at the current Term. We now affirm the decision below. I The Government’s principal argument turns upon an exceedingly narrow construction of our decisions in Marchetti and Grosso. In those cases, we took pains to make it clear that the Court in no way doubted the Government’s power to assess and collect taxes on unlawful gambling activities. It was only the method Congress had adopted in collecting the tax that raised the Fifth Amendment question. The statute com-manded that gamblers submit spécial registration statements and tax returns that contained information which could well incriminate them in many circumstances. Because the risk of self-incrimination was substantial, we held that a Fifth Amendment privilège could be raised as a defense to a criminal prosecution charging failure to file the required forms. Since it was only this method of tax collection which was subject to constitutional objection, we indicated that the Government remained free to collect taxes due under the statute so long as it 1 United States v. One 1965 Buick, 392 F. 2d 672, rehearing denied, 397 F. 2d 782. 415-649 0 - 72 - 51 718 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. did not attempt to punish the taxpayer for his failure to file the required documents. The Government now relies heavily on the fact that Marchetti and Grosso only held that “a claim of privilège precludes a criminal conviction premised on failure to pay the tax.” 2 (Emphasis supplied.) It argues that just as it may collect taxes in a civil action, the Government may also initiate forfeiture proceedings—which are also formally civil in nature—without offending Marchetti and Grosso. But as Boyd n. United States, 116 U. S. 616, 634 (1886), makes clear, “proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal” for Fifth Amendment purposes. (Emphasis supplied.) From the relevant constitutional standpoint there is no différence between a man who “forfeits” $8,674 because he has used the money in illégal gambling activities and a man who pays a “criminal fine” of $8,674 as a resuit of the same course of conduct. In both instances, money liability is predicated upon a finding of the owner’s wrongful conduct; in both cases, the Fifth Amendment applies with equal force. See also One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 700 (1965). The Government does not seriously contend otherwise. Instead it places great emphasis on the peculiar nature of the proceedings authorized under § 7302. Boyd, we are told, was only concerned with forfeitures which are imposed “by reason of offences committed by” the owner. 116 U. S., at 634. In the présent action, however, the Government contends that the guilt of the owner of the money is irrelevant. The forfeiture statute, it is noted, simply authorizes confiscation of “any property 2 Grosso v. United States, 390 U. S., at 70 n. 7; see also Marchetti v. United States, 390 U. S., at 41-42, 61. UNITED STATES v. U. S. COIN & CURRENCY 719 715 Opinion of the Court intended for use in violating the provisions of the internai revenue laws”; it does not require that Angelini be the one who possessed the requisite intention. If, for example, Angelini had left the money in a bookmaker’s office without having any reason to know that illégal activities would take place there, the Government reads the statute as permitting confiscation if it can be shown that the bookmaker used Angelini’s money in illégal wagering activities. Since, under the Government’s view, the guilt or innocence of the actual owner of the money is irrelevant in an action under § 7302, the Government urges that the présent forfeiture should not be considered the resuit of a “criminal” proceeding for Fifth Amendment purposes. If we were writing on a clean slate, this claim that § 7302 opérâtes to deprive totally innocent people of their property would hardly be compelling. Although it is true that the statute does not specifically state that the property shall be seized only if its owner significantly participated in the criminal enterprise, we would not readily infer that Congress intended a different meaning. Cf. Morissette v. United States, 342 U. S. 246 (1952). However, as our past decisions hâve recognized, centuries of history support the Government’s claim that forfeiture statutes similar to this one hâve an extraordinarily broad scope. See Goldsmith-Grant Co. n. United States, 254 U. S. 505 (1921) ; United States v. One Ford Coupe, 272 U. S. 321 (1926). Traditionally, forfeiture actions hâve proceeded upon the fiction that inanimate objects them-selves can be guilty of wrongdoing. See Dobbins’s Dis-tillery v. United States, 96 U. S. 395, 399-401 (1878); The Palmyra, 12 Wheat. 1, 14 (1827). Simply put, the theory has been that if the object is “guilty,” it should be held forfeit. In the words of a médiéval English writer, “Where a man killeth another with the sword of John at Stile, the sword shall be forfeit as deodand, and 720 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. yet no default is in the owner.” 3 The modem forfeiture statutes are the direct descendants of this héritage, which is searchingly considered by Mr. Justice Holmes in a brilliant chapter in his book, The Common Law.4 The forfeiture action in the présent case was instituted as an in rem proceeding in which the money itself is the formai respondent. More remarkable, the Government’s complaint charges the money with the commission of an actionable wrong.5 It would appear then that history does support the Government’s contention regarding the operation of this forfeiture statute, as do several decisions rendered by the courts of appeals.6 But before the Government’s attempt to distinguish the Boyd case could even begin to convince, we would first hâve to be satisfied that a forfeiture statute, with such a broad sweep, did not raise serious constitutional questions under that portion of the Fifth Amendment which commands that no person shall be “deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.” Even Blackstone, who is not known as a biting critic of the English legal tradition, condemned the seizure 3 Quoted from O. Holmes, The Common Law 23 (M. Howe ed. 1963). 4 Holmes, supra, n. 3, Lecture 1. 5 The libel charged that : “On one or more of the aforementioned dates . . . aforesaid respondents [L e., the money] had been used and were intended to be used in violation of the Internai Revenue Laws of the United States of America. . . . WHEREFORE, FRANK E. McDONALD, United States Attorney for the Northern District of Illinois . . . prays . . . That aforesaid respondents be adjudged and decreed forfeited to the UNITED STATES OF AMERICA.” App. 5-6. 6 United States v. Bride, 308 F. 2d 470 (CA9 1962) ; United States v. One 1958 Pontiac Coupe, 298 F. 2d 421 (CA7 1962) ; cf. United States v. One 1957 Oldsmobile Automobile, 256 F. 2d 931 (CA5 1958). UNITED STATES v. U. S. COIN & CURRENCY 721 715 Opinion of the Court of the property of the innocent as based upon a “superstition” inherited from the “blind days” of feudalism.7 And this Court in the past has recognized the difficulty of reconciling the broad scope of traditional forfeiture doctrine with the requirements of the Fifth Amendment. See, e. g., Goldsmith-Grant Co. v. United States, supra. Cf. United States v. One Ford Coach, 307 U. S. 219, 236-237 (1939). We need not pursue that inquiry once again, however, because we think that the Government’s argument fails on another score. For the broad language of § 7302 cannot be understood without considering the terms of the other statutes which regulate forfeiture proceedings. An express statutory provision permits the innocent owner to prove to the Secretary of the Treasury that the “forfeiture was incurred without willful négligence or without any intention on the part of the petitioner . . . to violate the law ... U 19 U. S. C. § 1618.8 Upon this showing, the Secretary is authorized to return the seized property “upon such terms and conditions as he deems reasonable and just.” It is not to be presumed that the Secretary will not conscientiously fulfill this trust, and the courts hâve intervened when the innocent petitioner’s protests hâve gone unheeded. United States v. Edwards, 368 F. 2d 722 (CA4 1966) ; Cotonificio Bustese, S. A. v. Morgenthau, 74 App. D. C. 13, 121 F. 2d 884 (1941) (Rutledge, J.). When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those 71 W. Blackstone, Commentaries, c. 8, *300. 8 Although this statute appears in Title 19, regulating forfeitures under the customs laws, 26 U. S. C. § 7327 provides that: “The provisions of law applicable to the remission or mitigation by the Secretary or his delegate of forfeitures under the customs laws shall apply to forfeitures incurred or alleged to hâve been incurred under the internai revenue laws.” 722 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. who are significantly involved in a criminal enterprise.9 It follows from Boyd, Marchetti, and Grosso that the Fifth Amendment’s privilège may properly be invoked in these proceedings.10 II The Government next contends that in any event our decisions in Marchetti and Grosso should not be retroactively applied to govern seizures of property taking place before these decisions were handed down on January 29, 1968. It is said that in reliance on the Court’s earlier decisions in Kahriger and Lewis,11 which upheld the validity of the gambling tax and registration require- 9 It is noteworthy that the libel instituted by the United States made claim to the $8,674 because “a business was being operated by Donald Angelini, in violation of [the gambling tax provisions],” App. 5 (emphasis supplied), and that the evidence introduced at trial was consistent only with this theory of liability. 10 In the présent case, the Government has not suggested that the Fifth Amendment provides Angelini with a defense only with respect to his failure to file the required registration and tax forms, and that the gambler’s failure to pay the required tax may still be punished consistently with Marchetti and Grosso. This argument was properly abandoned by the Solicitor General on reargument in Marchetti and Grosso, see Brief for the United States on Reargument 37-41, Marchetti v. United States and Grosso v. United States, supra, and we held in Grosso that, “[a]lthough failures to pay the excise tax and to file a return are separately punishable under 26 U. S. C. § 7203, the two obligations must be considered inséparable for purposes of measuring the hazards of self-incrimination which might stem from payment of the excise tax.” 390 U. S., at 65. Similarly, Marchetti ruled that: “The statutory obligations to register and to pay the occupational tax are essentially inséparable éléments of a single registration procedure.” 390 U. S., at 42-43, and see n. 3. Consequently, it appears clear that the Fifth Amendment provides gamblers in Angelini’s position with a complété defense. 11 United States v. Kahriger, 345 U. S. 22 (1953) ; Lewis v. United States, 348 U. S. 419 (1955). UNITED STATES v. U. S. COIN & CURRENCY 723 715 Opinion of the Court ments, “$6,686,098.22 worth of money and property has been seized under 26 U. S. C. 7302.” Brief for the United States 32-33. The Solicitor General concédés, however, that this figure overestimates the Government’s stake in the retroactivity question since “there are no reliable statistics indicating what percentage [of the property seized] was eventually returned to claimants” who proved to the Secretary of the Treasury that they were not significantly involved in criminal gambling activities. Id., at 33. Nevertheless, the Government contends that simply because some litigation may be anticipated as gamblers attempt to reclaim their property, the rétroactive effect of the new rule should be limited. We cannot agréé. Unlike some of our earlier retroactivity decisions, we are not here concerned with the implémentation of a procédural rule which does not un-dermine the basic accuracy of the factfinding process at trial. Linkletter v. Walker, 381 U. S. 618 (1965) ; Tehan v. Shott, 382 U. S. 406 (1966); Johnson v. New Jersey, 384 U. S. 719 (1966); Stovall v. Denno, 388 U. S. 293 (1967). Rather, Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance. These cases held that gamblers in Angelini’s position had the Fifth Amendment right to remain silent in the face of the statute’s command that they submit reports which could incriminate them. In the absence of a waiver of that right, such persons could not properly be prosecuted at ail. Given the aim of the Marchetti-Grosso rule, it seems clear that the Government must be required to undergo the relatively insignificant inconvenience involved in defending any lawsuits that may be anticipated. Indeed, this conclusion follows a fortiori from those decisions mandating the rétroactive application of those new rules which substantially improve the accuracy of the 724 OCTOBER TERM, 1970 Brennan, J., concurring 401 U. S. factfinding process at trial.12 In those cases, retroactivity was held required because the failure to employ such rules at trial meant there was a significant chance that innocent men had been wrongfully punished in the past. In the case before us, however, even the use of impeccable factfinding procedures could not legitimate a verdict decree-ing forfeiture, for we hâve held that the conduct being penalized is constitutionally immune from punishment. No circumstances call more for the invocation of a rule of complété retroactivity.13 Affirmed. Mr. Justice Black concurs in the Court’s judgment and the opinion so far as it goes. He would go further and now overrule Linkletter v. Walker, 381 U. S. 618 (1965), and its progeny. Mr. Justice Brennan, concurring. I join the opinion of the Court. The dissent would hâve us hold that the Government may continue in-definitely to enforce criminal penalties against individuals who had the temerity to engage in conduct protected by the Bill of Rights before the day that this Court held the conduct protected. Any such holding would hâve no more support in reason than it does in our cases. 12 See, e. g., Roberts v. Russell, 392 U. S. 293 (1968); McConnell v. Rhay, 393 U. S. 2 (1968) ; Arsenault v. Massachusetts, 393 U. S. 5 (1968); Berger n. California, 393 U. S. 314 (1969). 13 In the view of the writer of this opinion, the fact that this case had not become final by the time of this Court’s decisions in Marchetti and Grosso sufîices, without more, to require rejection of the Government’s contention respecting nonretroactivity. See, e. g., Desist v. United States, 394 U. S. 244, 256 (Harlan, J., dissenting), and Mackey n. United States, ante, p. 675 (Harlan, J., concurring in judgments and dissenting). UNITED STATES v. U. S. COIN & CURRENCY 725 715 Brennan, J., concurring I Frank récognition of the possible impact of rétroactive application of constitutional decisions on the administration of criminal justice has led this Court to establish guidelines to détermine the retroactivity of “constitutional rules of criminal procedure.” Stovall v. Denno, 388 U. S. 293, 296 (1967). Since “[e]ach constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice,” the “retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based.” Johnson n. New Jersey, 384 U. S. 719, 728 (1966). But although “[t]he extent to which a condemned practice infects the integrity of the truth-de-termining process at trial is a 'question of probabilities,’ ” Stovall v. Denno, 388 U. S., at 298, quoting Johnson v. New Jersey, 384 U. S., at 729, as a general matter “[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial which substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complété rétroactive effect.” Williams v. United States, ante, at 653. “Neither good-faith reliance by state or fédéral authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.” Ibid* *The few cases in which we hâve recognized that a new constitutional rule may in some circumstances improve the accuracy of the factfinding process, while at the same time denying rétroactive application to that rule, do not in my view undercut the force of these statements. The relevant cases are collected and discussed in an Appendix to this opinion, infra, p. 728. 726 OCTOBER TERM, 1970 Brennan, J., concurring 401 U. S. The reasoning that underlies these guidelines is clear. The States and the Fédéral Government hâve, of course, a legitimate interest in the evenhanded enforcement of such sanctions as they desire to impose upon any conduct that they may constitutionally prohibit. By définition a “new rule of criminal procedure” casts no doubt upon the power of government to punish certain conduct, but only upon the legitimacy of the process by which persons were found to hâve engaged in that conduct. Of course a government has no legitimate interest in upholding an unconstitutional System of criminal procedure. But accepting the results that an unconstitutional procedure has reached in the past does not uphold such a System for the future. Notwithstanding the new procédural rule the government retains a legitimate interest in sanctioning conduct that it may constitutionally prohibit. Accordingly, when a new procédural rule has cast no substantial doubt upon the reliability of déterminations of guilt in criminal cases, we hâve denied the rule rétroactive effect where a contrary decision would “impose a substantial burden [of retrials] upon the . . . judicial System . . . while serving neither to redress knowing violations of [constitutional rights] nor to protect a class of persons the government has no legitimate interest in punishing.” Williams v. United States, ante, at 664 (Brennan, J., concurring in resuit) ; see Desist n. United States, 394 U. S. 244 (1969). But since the government has no legitimate interest in punishing those innocent of wrongdoing, cf. Thompson n. Louisville, 362 U. S. 199 (1960), when a new procédural rule casts doubt upon the reliability of a substantial proportion of past convictions obtained without its protections, we hâve required the new rule be given full rétroactive effect. Williams v. United States, ante, at 653. From this it follows a fortiori that a decision holding certain conduct beyond the power of government UNITED STATES v. U. S. COIN & CURRENCY 727 715 Brennan, J., concurring to sanction or prohibit must be applied to prevent the continuing imposition of sanctions for conduct engaged in before the date of that decision. For the decision does far more than cast doubt upon the reliability of the guilt-determining process. It makes the question of reliability irrelevant, for it establishes beyond peradventure that the government has no legitimate interest in pun-ishing such conduct at ail. See Ex parte Siebold, 100 U. S. 371, 376-377 (1880). Accordingly, it may no longer continue to punish it. II The dissent seeks to explain its view of this case on the ground that even after this Court has declared certain individual conduct beyond the power of government to prohibit, the government retains an “interest in main-taining the rule of law and in demonstrating that those who defy the law do not do so with impunity” by punish-ing those persons who engaged in constitutionally protected conduct before it was so declared by this Court. Post, at 735. This argument, of course, has nothing whatever to do with the rule of law. It exalts merely the rule of judges by approving punishment of an individual for the lèse-majesté of asserting a constitutional right before we said he had it. In light of our frequent réitération that the usual mode of challenging an unconstitutional statute is expected to be violation oj the statute and adjudication of the constitutional challenge in a criminal proceeding, see, e. g., Douglas v. City oj Jeannette, 319 U. S. 157, 163 (1943); Dombrowski v. Poster, 380 U. S. 479, 484-485 (1965), it is difficult to see how this argument amounts to more than a fiat statement that those who assert their constitutional rights before we hâve declared them may not do so with impunity. 728 OCTOBER TERM, 1970 Appendix to opinion of Brennan, J., concurring 401 U. S. If the dissent today means what it says, it would appear to follow that Virginia might keep in jail interracial married couples whose only offense was cohabitation within the State, so long as the cohabitation was prior to Loving v. Virginia, 388 U. S. 1 (1967); or that Arkansas could still discharge school teachers who taught évolution before we struck down the relevant statute in Epperson v. Arkansas, 393 U. S. 97 (1968). Of course the dissenters would never uphold such action. But if there is any distinction between these cases and the case at bar, it can only be that Angelini is asserting his privilège against self-incrimination, rather than a right under the First or Fourteenth Amendment. Whatever may be the relevance of the source of a new constitutional rule in determining the extent to which it affects the reliability of the factfinding process at trial, however, there is no justification for allowing the government greater power to vindicate its nonexistent interest in enforcing an unconstitutional statute that punishes assertion of the privilège against self-incrimination than to vindicate its interest in enforcing a statute that punishes the assertion of any other constitutional right. APPENDIX TO OPINION OF BRENNAN, J., CONCURRING Our cases show little déviation from the principle that new constitutional rules of criminal procedure that affect the integrity of the factfinding process will, in general, be retroactively applied. In Tehan v. Shott, 382 U. S. 406 (1966), we denied rétroactive effect to Griffin v. California, 380 U. S. 609 (1965), despite our récognition that the privilège against self-incrimination which Griffin protected did in some circumstances serve as an adjunct to truth. 382 U. S., at 414-415, n. 12, quoting Murphy v. Waterfront Comm’n, 378 U. S. 52, 55 (1964). But in Tehan we noted specifically that the privilège UNITED STATES v. U. S. COIN & CURRENCY 729 715 Appendix to opinion of Brennan, J., concurring against self-incrimination is not primarily “an adjunct to the ascertainment of truth,” 382 U. S., at 416, and emphasized as well that rétroactive application of Griffin would, in the States concerned, “hâve an impact upon the administration of their criminal law so devastating as to need no élaboration.” Id., at 419. Similarly, in Johnson v. New Jersey, 384 U. S. 719 (1966), we denied rétroactive effect to Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, 384 U. S. 436 (1966), notwithstanding our récognition that the principles announced in those cases would in some circumstances guard against the possibility of unreliable confessions. 384 U. S., at 730. But we emphasized in Johnson that strict pre-Miranda standards were available to those de-siring to test the admissibility of confessions, ibid., as well as pointing out the severe impact that retroactivity would hâve on state criminal processes. Id., at 731-732. In Stovall v. Denno, 388 U. S. 293 (1967), we denied rétroactive effect to United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), because of uncertainty about the frequency with which violation of the rule there announced would actually resuit in injustice, the availability of a due process standard to remedy at least the more serious injustices, and the “unusual force of the countervailing considérations.” Stovall v. Denno, 388 U. S., at 299. Finally, in DeStefano v. Woods, 392 U. S. 631 (1968), we denied rétroactive effect to Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), holding respec-tively that the States must afford criminal défendants a jury trial on demand in serious criminal cases, and that the right to jury trial extends to trials for serious criminal contempts. As to Duncan, retroactivity was denied because we considered that there was little likelihood that bench trials, as a whole, would be unfair, and because rétroactive application could in some States 730 OCTOBER TERM, 1970 White, J., dissenting 401 U. S. reopen every conviction for serions crime. 392 U. S., at 633-634. As to Bloom, we recognized that one ground for the resuit was ‘The belief that contempt trials, which often occur before the very judge who was the object of the allegedly contemptuous behavior, would be more fairly tried if a jury determined guilt.” Id., at 634. But the firm tradition of nonjury trials in contempt cases, combined with the adverse impact of retroactivity on the administration of justice, combined to persuade us that Bloom should be applied prospectively only. Id., at 634-635. In addition, it should be noted that this Court has not been hésitant to reverse contempt convictions because of the possibility of involve-ment on the part of the judge. See Mayberry v. Pennsylvania, 400 U. S. 455 (1971), and cases cited. Examination of these cases, therefore, indicates that in ail cases save DeStefano/Bloom, we regarded as rela-tively small the likelihood that noncompliance with the new rule would hâve resulted in serious injustice in any past cases. Moreover, in ail cases save Tehan and DeStefano/Duncan, alternative methods were still avail-able to those who could demonstrate that the feared injustice had in fact resulted. Taken in combination, these factors lead me to conclude that the cases discussed in this Appendix do not undercut the force of the proposition at issue. Mr. Justice White, with whom The Chief Justice, Mr. Justice Stewart, and Mr. Justice Blackmun join, dissenting. I None of Angelini’s rights under the Fifth Amendment were violated when this forfeiture proceeding was begun and concluded in the District Court. In violation of the Internai Revenue Code, Angelini had failed to register as a gambler and to pay the related gambling tax; he UNITED STATES v. U. S. COIN & CURRENCY 731 715 White, J., dissenting was subject to criminal penalties for the default; and United States v. Kahriger, 345 U. S. 22 (1953), and Lewis v. United States, 348 U. S. 419 (1955), had specifically held that the statutory obligation to file and pay was not compulsory self-incrimination proscribed by the Fifth Amendment. The Amendment at that time afforded Angelini no defense either to a criminal charge for refusai to register and pay or to a forfeiture proceeding based on the same offenses. After affirmance of the forfeiture judgment in the Court of Appeals, however, our decisions in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968), intervened. Kahriger and Lewis were overruled. Obligatory filing and payment were held violative of the Fifth Amendment. It fol-lowed that failure to comply with the statute thereafter could not be punished by law. Angelini now daims the benefit of the new constitutional doctrine announced by Marchetti-Grosso. Of course, we are not free to set aside convictions or forfeitures at will. The forfeiture judgment imposed here must stand unless the Constitution otherwise com-mands. More specifically, we are empowered to set aside the judgment only if we are constitutionally compelled to give Marchetti and Grosso rétroactive application. It is now firmly settled that the Constitution does not require every new interprétation of the Bill of Rights to be retrospectively applied. The cases from Linkletter v. Walker, 381 U. S. 618 (1965), to Williams v. United States, ante, p. 646, prove at least this much. They also squarely hold that rétroactive sweep of newly announced constitutional doctrine is not required where violation of that doctrine raises no substantial doubts about the factual accuracy of guilty verdicts rendered under previous law. But if the new rule is such that 732 OCTOBER TERM, 1970 White, J., dissenting 401 U. S. its nonobservance in the past casts substantial doubt on the reliability of prior convictions, ail prior verdicts involving such a violation must be set aside regardless of countervailing arguments about the impact on state and fédéral interests in maintaining criminal judgments. So far, the Court and I are apparently in complété agreement. But I cannot join the Court in its disposition of this case. The majority’s reasoning is simple: If we are required to apply retroactively any new constitutional interprétation casting serious doubt on the accuracy of prior verdicts, we are also compelled to set aside convictions or penalties based on conduct that subséquent decisions—expressly contrary to prior decisions of this Court—hold to be constitutionally protected. If verdicts may not stand where the new rule casts doubt on the integrity of prior trials, surely, it is argued, a judgment such as the one against Angelini must be set aside because there should never hâve been a trial at ail. But this approach is no more than a beguiling ver-balism. There is no doubt in this case that Angelini failed to register, file his returns, and pay his tax; nor is there any suggestion that either Angelini’s conviction or the instant forfeiture proceedings were in any way unfair or departed from controlling norms. The argument here is not that new constitutional insight raises doubts whether Angelini committed the acts giving rise to the forfeiture or the accuracy of the procedures em-ployed in determining whether he acted as charged; rather, it is that the forfeiture judgment must be set aside because based on conduct which Marchetti-Grosso hâve declared to be constitutionally immune. As Angelini would hâve it, complété retroactivity must always be given to decisions invalidating on constitutional grounds any substantive criminal statute. Any statute UNITED STATES v. U. S. COIN & CURRENCY 733 715 White, J., dissenting defining criminal conduct, if declared unconstitutional, is void ab initia. I fail to find any such command, express or implied, in the Fifth Amendment or in any other provision of the Constitution. Nor does the Court care to explain the resuit it reaches. It does not embrace the theory that the Constitution must be understood always to hâve meant what the Court now says it means. It does not deny that this Court makes constitutional law. Nor does it assert that prior interprétations of the Constitution were never valid law and must always be disre-garded. But apparently a statute making certain conduct criminal, once invalidated here, was never the law although this Court formerly held that it was and had regularly affirmed convictions under it over explicit constitutional challenge. I am not prepared to agréé with this proposition. II Had Angelini registered and paid the fédéral tax and then been tried prior to Marchetti-Grosso for violating fédéral Interstate gambling laws or state laws making gambling a crime, the admissions contained in his registration and gambling tax returns would hâve been relevant and presumptively reliable evidence of guilt, properly admissible under Kahriger and Lewis. And if after Marchetti-Grosso, Angelini had complained about the use of this evidence, Tehan n. Shott, 382 U. S. 406 (1966), and Johnson v. New Jersey, 384 U. S. 719, 732 (1966), would surely dictate déniai of relief whether Angelini came here on direct review of his conviction or from déniai of collateral relief. If we would not upset a conviction where Angelini registered and filed tax returns and these filed statements were used against him in a criminal prosecution, 415-649 0 - 72 - 52 734 OCTOBER TERM, 1970 White, J., dissenting 401 U. S. neither should we implement the Marchetti-Grosso reading of the Fifth Amendment by applying it where there has been no self-incrimination but a conviction or forfeiture for failure to register or pay the tax. In Mackey v. United States, ante, p. 667, it seems to me that a major predicate for permitting Mackey’s gambling tax returns to be used against him in a criminal prosecution was that those returns were not compelled admissions— that Mackey’s Fifth Amendment rights were not violated by the statutory requirement to register, file returns, and pay the gambling tax, for that issue was controlled by Kahriger and Lewis, not by Marchetti and Grosso. Angelini is in no better position than was Mackey to argue successfully that the registration statute was invalid when he decided to ignore it or that the statute called for “compelled” incriminating admissions. To urge that the integrity of the forfeiture proceeding against Angelini is destroyed because Marchetti-Grosso forbade any forfeitures at ail is merely to reassert or assume that those decisions must be given rétroactive effect. In terms of implementing the purpose of Marchetti and Grosso and the Fifth Amendment, I see no différence between convictions or forfeitures for noncompliance with the statute and those obtained by using the fruits of compliance with that same statute. Angelini’s funds were validly and accurately forfeited for failing to file his returns contrary to a statute that this Court had upheld as consistent with the Fifth Amendment. Relief to Angelini would merely remove retroactively a burden on conduct, which when judged by current cases, was an exercise of his self-incrimination privilège, but which when it occurred and under the then-controlling law was a breach of duty he was legally bound to perform. UNITED STATES v. U. S. COIN & CURRENCY 735 715 White, J., dissenting III It is true that if this judgment of forfeiture were affirmed the law would countenance a penalty for past criminal acts that are wholly innocent under the current law. It is also true that when the law no longer censures certain acts, the Government surrenders its interest in deterring prior delinquents or the public generally from engaging in a particular form of conduct that once was criminal but is now unobjectionable behavior. But there remains the interest in maintaining the rule of law and in demonstrating that those who defy the law do not do so with impunity. Clearly, the Constitution does not re-quire the authorities to vindicate this interest upon the demise of a criminal law and some of us may think it unwise to do so. But is the interest so insubstantial that the Constitution forbids a State or the Fédéral Government from continuing to punish behavior which was once but is not now criminal conduct? I think not. The question is an old one for both courts and législatures and my answer is not novel, either in the context of the repeal of a criminal statute or in the context of a court decision overruling a prior case with respect to the constitutionality of a statute. The common law never attached complété retrospec-tivity to the repeal of a criminal statute. Absent statutory guidance, the judge-made rule was that those whose convictions had been finally affirmed when repeal took place received no benefit from the new rule; but repeal of a statute abated pending prosecutions and required reversai of convictions still on appeal when the law was changed. United States v. Chambers, 291 U. S. 217 (1934); Massey v. United States, 291 U. S. 608 (1934); United States v. Tynen, 11 Wall. 88 (1871); Yeaton v. United States, 5 Cranch 281 (1809); In re Kline, 70 736 OCTOBER TERM, 1970 White, J., dissenting 401 U. S. Ohio St. 25, 70 N. E. 511 (1904); State v. Addington, 2 Bailey (S. C.) 516 (1831); Ex parte Andres, 91 Tex. Cr. R. 93, 237 S. W. 283 (1922); see also 1 Sutherland, Statutory Construction § 2046 (1943 ed.). The courts nevertheless honored provisions in repealing statutes saving prosecutions and forfeitures for conduct committed while the former statute was in effect. The Irrésistible, 7 Wheat. 551 (1822); 1 Sutherland, supra, § 2050. Moreover, in 1871, Congress enacted the fol-lowing general statute which, among other things, saved ongoing criminal prosecutions from abatement following repeal of a penal statute: “[T]he repeal of any statute shall not hâve the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” 16 Stat. 432. This section was carried forward and eventually broad-ened by amendment “to provide that the expiration of a temporary statute shall not hâve the effect of prevent-ing prosecution of an offense committed under the temporary statute” by making “applicable to violations of temporary statutes the same rule that is now in effect in respect to offenses against statutes that hâve been repealed.” H. R. Rep. No. 261, 78th Cong., Ist Sess., 1 (1943).1 Today, 46 States, as well as the Fédéral Gov- 1 In a letter to the Speaker of the House of Représentatives in support of this broadening amendment, Attorney General Biddle referred to the common-law rule as a “deficiency [which] has been cured as concerns offenses cognizable under a statute that has been expressly repealed, as distinguished from one that expires by its own terms.” See H. R. Rep. No. 261, 78th Cong., Ist Sess., 1 (1943). He then indicated that there was doubt about whether UNITED STATES v. U. S. COIN & CURRENCY 737 715 White, J., dissenting ernment, make provision for saving pending criminal prosecutions from the repeal of the underlying statute.2 The prevailing legislative policy and positive law thus the general saving provision identical to that enacted in 1871 (by then 1 U. S. C. §29 (1940 ed.)) applied to violations of temporary statutes that expired before prosecutions could be concluded. The Attorney General next stated that a number of wartime statutes of a temporary nature had been enacted, and that to forestall questions about their enforceability after expiration “it appears désirable to enact législation which would expressly permit prosecutions after the lapse of such temporary statutes for violations committed while the act is in force.” H. R. Rep. No. 261, supra, at 2. 2 The 46 States are: Alabama: Ala. Code, Tit. 1, § 11 (1958); Alaska: Alaska Stat. §01.05.021 (1962); Arizona: Ariz. Rev. Stat. Ann. §§ 1-246, 1-247 (1956) ; see also id., §§ 1-244, 1-249; Arkansas: Ark. Stat. Ann. § 1-103 (1947); California: Cal. Govt. Code §9608 (1966) ; Colorado: Colo. Rev. Stat. Ann. §§ 135-1-7, 135-4—7 (1963) ; Connecticut: Conn. Gen. Stat. Rev. §54-194 (1968); Florida: Fia. Const., Art. 10, §9; Georgia: Ga. Code Ann. §26-103 (1953); Hawaii: Hawaii Rev. Laws § 1-11 (1968); Idaho: Idaho Code § 67-513 (1947) ; Illinois: 111. Rev. Stat., c. 131, § 4 (1969) ; Indiana: Ind. Ann. Stat. §§ 1-303, 1-307 (1967); lowa: lowa Code §4.1 (1) (1971); Kansas: Kan. Stat. Ann. § 77-201 (1969); Kentucky: Ky. Rev. Stat. §446.110 (1962); Louisiana: La. Rev. Stat. §24:171 (1950) ; Maine: Me. Rev. Stat. Ann., Tit. 1, § 302 (Supp. 1970-1971) ; Maryland: Md. Ann. Code, Art. 1, § 3 (1957); Massachusetts: Mass. Gen. Laws Ann., c. 4, § 6 (1966); Michigan: Mich. Comp. Laws § 8.4a (1948); Minnesota: Minn. Stat. §645.35 (1967); Mississippi: Miss. Code Ann. §2608 (1957); Missouri: Mo. Rev. Stat. §1.160 (1969); Montana: Mont. Rev. Codes Ann. §43-514 (1961); Nebraska: Neb. Rev. Stat. §49-301 (1968); Nevada: Nev. Rev. Stat. § 169.235 (1968); New Hampshire: N. H. Rev. Stat. Ann. §21:38 (1955) ; New Jersey: N. J. Rev. Stat. § 1:1-15 (1937) ; New Mexico: N. M. Const., Art. 4, § 33; New York: N. Y. Gen. Constr. Law § 94 (1951); North Carolina: N. C. Gen. Stat. §§ 164-4, 164-5 (1964); North Dakota: N. D. Cent. Code § 1-02-17 (1959) (saves penalties, fines, liabilities, or forfeitures incurred under a repealed statute and provides that the repealed act remains in force for the purpose of enforcing such fines, penalties, or forfeitures; however, unless the repealing statute expressly provides otherwise, in cases tried both before and after the repeal, the repealing statute has the effect 738 OCTOBER TERM, 1970 White, J., dissenting 401 U. S. is that neither the repeal of a statute nor the expiration of a temporary act shall release or extinguish penalties, forfeitures, or liabilities incurred under statutes no longer in force. Conduct perfectly innocent under cur-rent law is nevertheless punishable if it occurred while a valid criminal statute proscribed it. The courts hâve of “extinguishing any jail or prison sentence that may be, or that has been, imposed by reason of said law . . . Ibid.; but see In re Chambers, 69 N. D. 309, 285 N. W. 862 (1939), where the court held that insofar as § 1-02-17 purported to extinguish prison sentences imposed after trial which preceded the effective date of the repealing statute, the section was unconstitutional under N. D. Const. § 76, which vests power to pardon in the Governor and the board of pardons); Ohio: Ohio Rev. Code Ann. §1.20 (1969); Oklahoma: Okla. Const., Art. 5, §54; Oregon: Ore. Rev. Stat. § 161.040 (1967); Rhode Island: R. L Gen. Laws Ann. §43-3-23 (1956); South Dakota: S. D. Compiled Laws Ann. §2-14-18 (1967); Tennessee: Tenn. Code Ann. § 1-301 (1955); Utah: Utah Code Ann. §68-3-5 (1968); Vermont: Vt. Stat. Ann., Tit. 1, §214 (Supp. 1970); Virginia: Va. Code Ann. § 1-16 (1950); Washington: Wash. Rev. Code § 10.01.040 (1956); West Virginia: W. Va. Code Ann. §2-2-8 (1966); Wisconsin: Wisc. Stat. §990.04 (1967); Wyoming: Wyo. Stat. Ann. §8-21 (1957). Of the four other States, Delaware has a provision but it applies only to save prosecutions for any offenses committed under laws repealed when the State’s comprehensive Code of 1953 was adopted. Del. Code Ann., Tit. 1, § 104 (1953). See also Pa. Stat. Ann., Tit. 46, § 596 (1969), a general saving provision applicable only to repeal of “civil provisions.” However, under Pa. Stat. Ann., Tit. 46, § 582, if the repeal of a penal statute is accompanied by a re-enactment at the same time of the repealed law s provisions in “substantially the same terms,” a prosecution will be saved. See Commonwealth v. Davis, 4 Pa. D. & C. 2d 182 (1954). Tex. Pen. Code, Art. 14.16 (1952), provides: “The repeal of a law where the repealing statute substitutes no other penalty will exempt from punishment ail persons who may hâve violât ed such repealed law, unless it be otherwise declared in the repealing statute.” But Tex. Pen. Code, Art. 17.19 saves prosecutions for offenses committed under statutes repealed when the new Penal Code took effect. South Carolina apparently has no general saving provision applicable to criminal prosecutions. UNITED STATES v. U. S. COIN & CURRENCY 739 715 White, J., dissenting regularly enforced 1 U. S. C. § 109, the fédéral saving statute, never suggesting that it was constitutionally infirm or even fundamentally unfair and frankly recognizing that the Government is free to maintain the integrity of the law by insisting that those who violate it suffer the conséquences.3 3 United States v. Reisinger, 128 U. S. 398 (1888) (enforcing one of the predecessors of 1 U. S. C. § 109) ; Allen n. Grand Central Aircraft Co., 347 U. S. 535, 553-555 (1954); Moorehead v. Hunter, 198 F. 2d 52 (CA10 1952) ; Lovely v. United States, 175 F. 2d 312, 316-318 (CA4 1949); Rehberg v. United States, 174 F. 2d 121 (CA5 1949); Ladner v. United States, 168 F. 2d 771 (CA5 1948). 1 Sutherland, Statutory Construction §2048 (1943 ed.). See also Fleming v. Mohawk Wrecking Æ Lumber Co., 331 U. S. 111, 119 (1947) ; Duffel v. United States, 95 U. S. App. D. C. 242, 221 F. 2d 523 (1954); cf. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 331-333 (1936); United States v. Hark, 320 U. S. 531 (1944) (reversing an order quashing an indictment charging violation of maximum price régulation that had been revoked prior to the date the indictment was returned on the ground that the statute under which the régulation was issued remained in effect after révocation). In United States n. Chambers, 291 U. S. 217 (1934), this Court was faced with the question of what effect repeal of the Eighteenth Amendment by the Twenty-first Amendment on December 5, 1933, would hâve on criminal prosecutions continued or begun under the National Prohibition Act after the repealing amendment had been ratified. In an opinion by Chief Justice Hughes, the Court applied the common-law rule of Tynen and Yeaton and held that pending prosecutions, including those still on direct review, would be abated. The question of whether the Twenty-first Amendment had any effect on convictions which had become final before the date of ratification was specifically reserved. 291 U. S., at 226. Thereafter, the courts of appeals held that défendants whose convictions had become final before the Twenty-first Amendment was ratified had to serve their sentences. United States ex rel. Randall v. United States Marshal, 143 F. 2d 830 (CA2 1944) ; Odekirk v. Ryan, 85 F. 2d 313 (CA6 1936) ; United States ex rel. Cheramie v. Dutton, 74 F. 2d 740 (CA5 1935), cert. denied sub nom. United States ex rel. Cheramie n. Freudenstein, 295 U. S. 733 (1935); Rives v. O’Hearne, 64 App. D. C. 48, 73 F. 2d 984 (1934) ; Moss v. United States, 72 F. 2d 30 (CA4 1934) ; The Helen, 72 F. 2d 772 740 OCTOBER TERM, 1970 White, J., dissenting 401 U. S. Of course, the case before us does not involve the legislative repeal of an existing criminal statute but a construction of the Fifth Amendment by this Court contrary to past interprétations of that amendment and having the effect of barring enforcement of 26 U. S. C. § 7203 against those refusing to register as gamblers and pay the gambling tax. As to those persons, at least those failing to file and pay after January 29, 1968, 26 U. S. C. § 7203 may not constitutionally be enforced. Does such a déclaration concerning a law which this Court had pre-viously validated mean that the law was to this extent void from the moment it was enacted? If so, it would appear that not only should pending prosecutions abate, but also ail previous convictions should be vulnérable to (CA3 1934) (common-law rule of Chambers applied to a forfeiture); United States ex rel. Benton v. Hill, 72 F. 2d 826 (CA3 1934) ; United States ex rel. Voorhees n. Hill, 72 F. 2d 826 (CA3 1934) ; United States ex rel. Nerbonne v. Hill, 70 F. 2d 1006 (CA3 1934). In Chambers, the Court rejected the Government’s suggestion that the general saving provision—the predecessor of § 109—sup-ported the continuation of prosecutions pending when the repealing amendment was ratified. The saving statute was discussed as passed in récognition of the principle that unless a repealed law is “continued in force by competent authority,” 291 U. S., at 224, repeal halts enforcement. Congress had the power to propose the Twenty-first Amendment so as to include a saving provision, but not to vary the amendment’s terms once it was adopted. Since as adopted the amendment gave Congress no power to extend the operation of the National Prohibition Act, which was deprived of its force by the action of the people in repealing the Eighteenth Amendment, the Court concluded that the general saving provision had no application. Ibid. There can be no doubt that a Court which had just decided Great Northern R. Co. n. Sunburst Oil & Refining Co., 287 U. S. 358 (1932), would consider the judiciary as “competent authority” to fashion a rule that a statute, though changed by interprétation, nevertheless remained in force and applicable to events that transpired before the change occurred. See nn. 6-7, infra, and accompanying text. UNITED STATES v. U. S. COIN & CURRENCY 741 715 White, J., dissenting habeas corpus pétitions alleging that petitioners are in custody pursuant to an unconstitutional law. Or should the statute validated by prior Court decisions be consid-ered a valid law until the date of its invalidation and its demise treated as Congress treats the repeal of a statute? Neither of these alternatives has found unqualified support in this Court. There are statements in the cases indicating that an unconstitutional law must be treated as having no effect whatsoever from the very date of its enactment. Chicago, I. & L. R. Co. v. Hackett, 228 U. S. 559 (1913) ; Norton v. Shelby County, 118 U. S. 425 (1886); Ex parte Siebold, 100 U. S. 371, 376 (1880).4 But this view has not prevailed. In Gelpcke n. City of Dubuque, 1 Wall. 175, 206 (1864), the city issued bonds pursuant to legislative authoriza-tion that the lowa Suprême Court had upheld as constitutional. The same court then overruled itself and held the statutory authorization to be void. This Court refused to allow the state court to give rétroactive effect to the overruling decision by invalidating the bonds, saying that the législature could not impair the obligation of an existing contract and that the same principle applies “where there is a change of judicial decision as to the constitutional power of the législature to enact the law. To this rule, thus enlarged, we adhéré. It is the law of this court.” 5 4 In Norton, Mr. Justice Field declared: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it créâtes no office; it is, in legal contemplation, as inoperative as though it had never been passed.” 118 U. S., at 442. 5 The Court so held over the dissent of Mr. Justice Miller who said: “The Suprême Court of lowa is not the first or the only court which has changed its rulings on questions as important as the one now presented. I understand the doctrine to be in such 742 OCTOBER TERM, 1970 White, J., dissenting 401 U. S. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358 (1932),6 was another indication that the Court clearly rejected any all-inclusive principle of retroactivity for court decisions déclarative of a change in the law. In Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371 (1940), this Court was faced with the question whether rétroactive effect should be accorded an earlier decision declaring a fédéral statute unconstitutional, Ashton v. C amer on County District, cases, not that the law is changed, but that it was always the same as expounded by the later decision, and that the former decision was not, and never had been, the law, and is overruled for that very reason. The decision of this court contravenes this principle, and holds that the decision of the court makes the law, and in fact, that the same statute or constitution means one thing in 1853, and another thing in 1859.” 1 Wall., at 211. See also Loeb v. Columbia Township Trustées, 179 U. S. 472, 492 (1900); Douglass v. County of Pike, 101 U. S. 677, 687 (1880). 6 Sunburst rejected the claim that a state court could not constitutionally refuse to make its ruling rétroactive. Mr. Justice Cardozo held: “A state in defining the limits of adhérence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly, that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hard-ship will thereby be averted. On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or idéal existence before the act of déclaration, in which event the discredited déclaration will be viewed as if it had never been, and the reconsidered déclaration as law from the beginning. The alternative is the same whether the subject of the new decision is common law or statute. The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature.” 287 U. S. 358, at 364-365 (citations omitted, footnotes omitted, emphasis in original). UNITED STATES v. U. S. COIN & CURRENCY 743 715 White, J., dissenting 298 U. S. 513 (1936). Referring expressly to Norton, Chief Justice Hughes stated that the broad language in that opinion “must be taken with qualifications.” 308 U. S., at 374. As he asserted: “The actual existence of a statute, prior to [a détermination of unconstitutionality], is an operative fact and may hâve conséquences which cannot justly be ignored. The past cannot always be erased by a new judicial déclaration. The effect of the subséquent ruling as to invalidity may hâve to be considered in various aspects,—with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to hâve become vested, of status, of prior déterminations deemed to hâve finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which hâve engaged the attention of courts, state and fédéral, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute rétroactive invalidity cannot be justified.” Ibid. This clear rejection of the idea that every decision declaring a statute unconstitutional had rétroactive sweep was one of the underpinnings of Linkletter v. Walker, 381 U. S. 618, 622-629 (1965), and has been invoked since Linkletter.1 It was against this background that 7 See City of Phoenix v. Kolodziejski, 399 U. S. 204, 213-215 (1970); Cipriano v. City of Houma, 395 U. S. 701, 706 (1969); cf. Tehan v. Shott, 382 U. S. 406 (1966), where the prosecutor’s comment about the defendant’s failure to take the stand was authorized, when made, by Art. I, § 10, of the Constitution of Ohio and Ohio Rev. Code § 2945.43. 744 OCTOBER TERM, 1970 White, J., dissenting 401 U.S. this Court has fashioned rules to deal with the impact on pending and closed criminal cases of decisions that overruled prior decisions construing the various provisions of the Bill of Rights. And it is against this back-ground that I would reverse the judgment of the Court of Appeals. UNITED STATES v. WHITE 745 Syllabus UNITED STATES v. WHITE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 13. Argued November 10, 1969—Reargued October 20, 1970— Decided April 5, 1971 Respondent was convicted in 1966 of narcotics violations following a trial where evidence was admitted of certain incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of a transmitter which an informer consented to wear during his meetings with respondent. The informer could not be located at trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. Reading Katz v. United States, 389 U. S. 347 (1967), as overruling On Lee v. United States, 343 U. S. 747 (1952), the Court of Appeals held that the agents’ testimony was impermissible under the Fourth Amendment, and reversed respondent’s conviction. Held: The judgment is reversed. Pp. 748-756. 405 F. 2d 838, reversed. Mr. Justice White, joined by The Chief Justice, Mr. Justice Stewart, and Mr. Justice Blackmun, concluded that: 1. The Government’s use of agents who themselves may reveal the contents of conversations with an accused does not violâte the Fourth Amendment, and this Court’s decision in Katz v. United States, supra, does not disturb the rationale of On Lee, supra, in this respect and require a different resuit because the agent uses electronic equipment to transmit the conversations to other agents. Pp. 748-754. 2. The unavailability of the informant as a witness does not create any Fourth Amendment issue. Pp. 753-754. 3. Since the decision in Katz v. United States, supra, was not rétroactive, Desist v. United States, 394 U. S. 244, the Court of Appeals erred in not adjudicating this case by the pre-Katz law established by On Lee to the effect that the electronic surveillance did not in volve a Fourth Amendment violation. P. 754. Mr. Justice Black concurred in the judgment for the reasons set forth in his dissent in Katz v. United States, 389 U. S. 347, 364. P. 754. 746 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. Mr. Justice Brennan, to the extent that he joined in the Court’s judgment, concluded that Desist v. United States, supra, requires reversai of the Court of Appeals’ judgment. P. 755. White, J., announced the Court’s judgment, and delivered an opinion in which Burger, C. J., and Stewart and Blackmun, JJ., joined. Black, J., filed a statement concurring in the judgment, post, p. 754. Brennan, J., filed an opinion concurring in the resuit, post, p. 755. Douglas, J., post, p. 756, Harlan, J., post, p. 768, and Marshall, J., post, p. 795, filed dissenting opinions. Assistant Attorney General Wilson reargued the cause for the United States. With him on the briefs were Solicitor General Griswold, Joseph J. Connolly, John S. Martin, Jr., Jerome M. Feit, Béatrice Rosenberg, and Sidney M. Glazer. John L. Boeger reargued the cause for respondent. With him on the brief were Morris A. Shenker and Chauncey Eskridge. Abraham Glasser and Maurice Edelbaum filed a brief for John G. Broady et al. as amici curiae urging affirmance. Mr. Justice White announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice Blackmun join. In 1966, respondent James A. White was tried and convicted under two Consolidated indictments charging various illégal transactions in narcotics violative of 26 U. S. C. § 4705 (a) and 21 U. S. C. § 174. He was fined and sentenced as a second offender to 25-year concurrent sentences. The issue before us is whether the Fourth Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between défendant White and a government informant, Harvey Jackson, and which the agents UNITED STATES v. WHITE 747 745 Opinion of White, J. overheard by monitoring the frequency of a radio trans-mitter carried by Jackson and concealed on his person.1 On four occasions the conversations took place in Jackson’s home; each of these conversations was overheard by an agent concealed in a kitchen closet with Jackson’s consent and by a second agent outside the house using a radio receiver. Four other conversations—one in respondent’s home, one in a restaurant, and two in Jackson’s car—were overheard by the use of radio equipment. The prosecution was unable to locate and produce Jackson at the trial and the trial court over-ruled objections to the testimony of the agents who conducted the electronic surveillance. The jury re-turned a guilty verdict and défendant appealed. The Court of Appeals read Katz v. United States, 389 U. S. 347 (1967), as overruling On Lee v. United States, 343 U. S. 747 (1952), and interpreting the Fourth Amendment to forbid the introduction of the agents’ testimony in the circumstances of this case. Accord-ingly, the court reversed but without adverting to the fact that the transactions at issue here had occurred before Katz was decided in this Court. In our view, the Court of Appeals misinterpreted both the Katz case and the Fourth Amendment and in any event erred in applying the Katz case to events that occurred before that decision was rendered by this Court.2 1 White argues that Jackson, though admittedly “cognizant” of the presence of transmitting devices on his person, did not volun-tarily consent thereto. Because the court below did not reach the issue of Jackson’s consent, we décliné to do so. Similarly, we do not consider White’s claim that the Government’s actions violated state law. 2 A panel of three judges on March 18, 1968, reversed the conviction, one judge dissenting. A rehearing en banc was granted, and on January 7, 1969, the full court followed the panel’s decision, three judges dissenting. 405 F. 2d 838. 748 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. I Until Katz v. United States, neither wiretapping nor electronic eavesdropping violated a defendant’s Fourth Amendment rights “unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house ‘or curtilage’ for the purpose of making a seizure.” Olmstead v. United States, 211 U. S. 438, 466 (1928); Goldman v. United States, 316 U. S. 129, 135-136 (1942). But where “eavesdropping was accomplished by means of an unauthorized physical pénétration into the premises occupied” by the défendant, although falling short of a “technical trespass under the local property law,” the Fourth Amendment was violated and any evidence of what was seen and heard, as well as tangible objects seized, was considered the inadmissible fruit of an unlawful invasion. Silverman n. United States, 365 U. S. 505, 509, 511 (1961) ; see also Wong Sun v. United States, 371 U. S. 471 (1963); Berger v. New York, 388 U. S. 41, 52 (1967); Alderman v. United States, 394 U. S. 165, 177-178 (1969). Katz n. United States, however, finally swept away doctrines that electronic eavesdropping is permissible under the Fourth Amendment unless physical invasion of a constitutionally protected area produced the chal-lenged evidence. In that case government agents, without petitioner’s consent or knowledge, attached a listen-ing device to the outside of a public téléphoné booth and recorded the defendant’s end of his téléphoné conversations. In declaring the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance, the Court overruled Olmstead and Goldman and held that the absence of physical intrusion into the téléphoné booth did not justify using electronic devices in listening to and recording Katz’ words, thereby vio- UNITED STATES v. WHITE 749 745 Opinion of White, J. lating the privacy on which he justifiably relied while using the téléphoné in those circumstances. The Court of Appeals understood Katz to render inadmissible against White the agents’ testimony concerning conversations that Jackson broadcast to them. We cannot agréé. Katz involved no révélation to the Government by a party to conversations with the défendant nor did the Court indicate in any way that a défendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police. Hoffa v. United States, 385 U. S. 293 (1966), which was left undisturbed by Katz, held that however strongly a défendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, “no interest legiti-mately protected by the Fourth Amendment is involved,” for that amendment affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, at 302. No warrant to “search and seize” is required in such circumstances, nor is it when the Government sends to defendant’s home a secret agent who conceals his identity and makes a pur-chase of narcotics from the accused, Lewis v. United States, 385 U. S. 206 (1966), or when the same agent, unbeknown to the défendant, carries electronic equip-ment to record the defendant’s words and the evidence so gathered is later offered in evidence. Lapez v. United States, 373 U. S. 427 (1963). Conceding that Hofîa, Lewis, and Lapez remained unaffected by Katz? the Court of Appeals nevertheless 3 It follows from our opinion that we reject respondent’s contentions that Lopez should be overruled. 415-649 0 - 72 - 53 750 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. read both Katz and the Fourth Amendment to require a different resuit if the agent not only records his conversations with the défendant but instantaneously trans-mits them electronically to other agents equipped with radio receivers. Where this occurs, the Court of Appeals held, the Fourth Amendment is violated and the testimony of the listening agents must be excluded from evidence. To reach this resuit it was necessary for the Court of Appeals to hold that On Lee v. United States was no longer good law. In that case, which involved facts very similar to the case before us, the Court first rejected daims of a Fourth Amendment violation because the informer had not trespassed when he entered the de-fendant’s premises and conversed with him. To this extent the Court’s rationale cannot survive Katz. See 389 U. S., at 352-353. But the Court announced a second and independent ground for its decision; for it went on to say that overruling Olmstead and Goldman would be of no aid to On Lee since he “was talking confidentially and indiscreetly with one he trusted, and he was overheard. ... It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment here.” 343 U. S., at 753-754. We see no indication in Katz that the Court meant to disturb that understanding of the Fourth Amendment or to disturb the resuit reached in the On Lee case,4 nor are we now inclined to overturn this view of the Fourth Amendment. 4 Other courts of appeals hâve considered On Lee viable despite Katz. Dancy n. United States, 390 F. 2d 370 (CA5 1968) ; Long v. United States, 387 F. 2d 377 (CA5 1967) ; Koran v. United States, UNITED STATES v. WHITE 751 745 Opinion of White, J. Concededly a police agent who conceals his police connections may write down for official use his conversations with a défendant and testify concerning them, without a warrant authorizing his encounters with the défendant and without otherwise violating the latter’s Fourth Amendment rights. Hofja v. United States, 385 U. S., at 300-303. For constitutional purposes, no different resuit is required if the agent instead of imme-diately reporting and transcribing his conversations with défendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lapez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and révélations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simul-taneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the défendant is talking and whose trust-worthiness the défendant necessarily risks. Our problem is not what the privacy expectations of particular défendants in particular situations may be or the extent to which they may in fact hâve relied on the discrétion of their companions. Very probably, individual défendants neither know nor suspect that their colleagues hâve gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now 408 F. 2d 1321 (CA5 1969). See also United States v. Kaujer, 406 F. 2d 550 (CA2), aff’d per curiam, 394 U. S. 458 (1969); United States v. Jackson, 390 F. 2d 317 (CA2 1968) ; Doty v. United States, 416 F. 2d 887 (CA10 1968), id., at 893 (rehearing 1969). 752 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. before us. Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally “justifiable”—what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associâtes who for one reason or another hâve determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis. If the law gives no protection to the wrongdoer whose trusted ac-complice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case. See Lopez v. United States, 373 U. S. 427 (1963). Inescapably, one contemplating illégal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trust-worthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would dis-tinguish between probable informers on the one hand and probable informers with transmitters on the other. Given the possibility or probability that one of his col-leagues is cooperating with the police, it is only spéculation to assert that the defendant’s utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the différence in this respect between the electronically equipped and the unequipped agent is sub-stantial enough to require discrète constitutional recog- UNITED STATES v. WHITE 753 745 Opinion of White, J. nition, particularly under the Fourth Amendment which is ruled by fluid concepts of “reasonableness.” Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a de-fendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considérations like these obviously do not favor the défendant, but we are not prepared to hold that a défendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilège against a more accurate version of the events in question. It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a “reasonable” investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an “unreasonable” and unconstitutional search and seizure. Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U. S. C. § 2510 et seq. (1964 ed., Supp. V), and the American Bar Association. Project on Standards for Criminal Justice, Electronic Surveillance § 4.1 (Approved Draft 1971). It is also the resuit reached by prior cases in this Court. On Lee, supra; Lapez v. United States, supra. No different resuit should obtain where, as in On Lee and the instant case, the informer disappears and is un- 754 OCTOBER TERM, 1970 Opinion of White, J. 401 U. S. available at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer. His unavailability at trial and proffering the testimony of other agents may raise evidentiary problems or pose issues of prosecutorial misconduct with respect to the informer’s disappearance, but they do not appear critical to deciding whether prior events invaded the defendant’s Fourth Amendment rights. II The Court of Appeals was in error for another reason. In Desist n. United States, 394 U. S. 244 (1969), we held that our decision in Katz v. United States applied only to those electronic surveillances that occurred subséquent to the date of that decision. Here the events in question took place in late 1965 and early 1966, long prior to Katz. We adhéré to the rationale of Desist, see Williams v. United States, ante, p. 646. It was error for the Court of Appeals to dispose of this case based on its understanding of the principles announced in the Katz case. The court should hâve judged this case by the pre-Katz law and under that law, as On Lee clearly holds, the electronic surveillance here involved did not violate White’s rights to be free from unreasonable searches and seizures. The judgment of the Court of Appeals is reversed. It is so ordered. Mr. Justice Black, while adhering to his views ex-pressed in LinkletterN. Walker, 381 U. S. 618, 640 (1965), concurs in the judgment of the Court for the reasons set forth in his dissent in Katz v. United States, 389 U. S. 347, 364 (1967). UNITED STATES v. WHITE 755 745 Brennan, J., concurring in resuit Mr. Justice Brennan, concurring in the resuit. I agréé that Desist v. United States, 394 U. S. 244 (1969), requires reversai of the judgment of the Court of Appeals. Therefore, a majority of the Court supports disposition of this case on that ground. However, my Brothers Douglas, Harlan, and White also debate the question whether On Lee v. United States, 343 U. S. 747 (1952), may any longer be regarded as sound law. My Brother White argues that On Lee is still sound law. My Brothers Douglas and Harlan argue that it is not. Neither position commands the support of a majority of the Court. For myself, I agréé with my Brothers Douglas and Harlan. But I go further. It is my view that the reasoning of both my Brothers Douglas and Harlan compels the conclusion that Lopez n. United States, 373 U. S. 427 (1963), is also no longer sound law. In other words, it is my view that current Fourth Amendment jurisprudence interposes a warrant requirement not only in cases of third-party electronic monitoring (the situation in On Lee and in this case) but also in cases of electronic recording by a government agent of a face-to-face conversation with a criminal suspect, which was the situation in Lopez. For I adhéré to the dissent in Lopez, 373 U. S., at 446-471, in which, to quote my Brother Harlan, post, at 778 n. 12, “the doctrinal basis of our subséquent Fourteenth Amendment decisions may be said to hâve had its genesis.” Katz n. United States, 389 U. S. 347 (1967), adopted that “doctrinal basis” and thus, it seems to me, agreed with the argument in the Lopez dissent that “subséquent decisions and subséquent expérience hâve sapped whatever vitality [On Lee] may once hâve had; that it should now be regarded as over-ruled” and that the situation in Lopez “is rationally indis-tinguishable.” 373 U. S., at 447. The reasons in support of those conclusions are set forth fully in the Lopez 756 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. dissent and need not be repeated here. It suffices to say that for those reasons I remain of the view that the Fourth Amendment imposes the warrant requirement in both the On Lee and Lopez situations. Mr. Justice Douglas, dissenting. I The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as “eavesdropping,” we now call “elec-tronic surveillance”; but to equate the two is to treat man’s first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held “reasonable” within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of “commerce” would be hopeless when it cornes to the management of modem affairs. At the same time the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate ail the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on. That is why a “strict construction” of the Fourth Amendment is necessary if every man’s liberty and privacy are to be constitutionally honored. When Franklin D. Roosevelt on May 21, 1940, authorized wiretapping in cases of “fifth column” activities and sabotage and limited it “insofar as possible to aliens,” he said that “under ordinary and normal circumstances UNITED STATES v. WHITE 757 745 Douglas, J., dissenting wire-tapping by Government agents should not be car-ried on for the excellent reason that it is almost bound to lead to abuse of civil rights.” See Appendix I to this dissent. Yet as Judge Ferguson said in United States v. Smith, 321 F. Supp. 424, 429: “[T]he government seems to approach these dissident domestic organizations in the same fashion as it deals with unfriendly foreign powers. The government cannot act in this manner when only domestic political organizations are involved, even if those organizations espouse views which are in-consistent with our présent form of government. To do so is to ride roughshod over numerous political freedoms which hâve long received constitutional protection. The government can, of course, investi-gate and prosecute criminal violations whenever these organizations, or rather their individual members, step over the line of political theory and general advocacy and commit illégal acts.” Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman’s master. Any doubters should read Arthur R. Miller’s The Assault On Privacy (1971). After describing the monitoring of conversations and their storage in data banks, Professer Miller goes on to describe “human monitoring” which he calls the “ultimate step in mechanical snooping”—a device for spotting unorthodox or aberra-tional behavior across a wide spectrum. “Given the ad-vancing state of both the remote sensing art and the capacity of computers to handle an uninterrupted and synoptic data flow, there seem to be no physical barriers left to shield us from intrusion.” Id., at 46. When one reads what is going on in this area today, our judicial treatment of the subject seems as remote from 758 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. reality as the well-known Baron Parke was remote from the social problems of his day. See Chapman, “Big Brother” in the Justice Department, The Progressive, April 1971, p. 27. II We held in Berger v. New York, 388 U. S. 41, that wiretapping is a search and seizure within the meaning of the Fourth Amendment and therefore must meet its requirements, viz., there must be a prior showing of probable cause, the warrant authorizing the wiretap must particularly describe “the place to be searched, and the persons or things to be seized,” and that it may not hâve the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed. In Katz n. United States, 389 U. S. 347, we held that an electronic device, used without trespass onto any given enclosure (there a téléphoné booth), was a search for which a Fourth Amendment warrant was needed.1 Mr. Justice Stewart, speaking for the Court, said: “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” Id., at 359. As a resuit of Berger and of Katz, both wiretapping and electronic surveillance through a “bug” or other device are now covered by the Fourth Amendment. There were prior decisions representing an opposed view. In On Lee v. United States, 343 U. S. 747, an 1 See Greenawalt, The Consent Problem in Wiretapping & Eaves-dropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col. L. Rev. 189; Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup. Ct. Rev. 133; Note, Police Undercover Agents: New Threat to First Amend-ment Freedoms, 37 Geo. Wash. L. Rev. 634; Comment, Electronic Surveillance: The New Standards, 35 Brooklyn L. Rev. 49. The relaxing of constitutional requirements by the Executive Branch is apparent from the Appendices to this dissent. UNITED STATES v. WHITE 759 745 Douglas, J., dissenting undercover agent with a radio transmitter concealed on his person interviewed the défendant whose words were heard over a radio receiver by another agent down the Street. The idea, discredited by Katz, that there was no violation of the Fourth Amendment because there was no trespass, was the core of the On Lee decision. Id., at 751-754. Lopez v. United States, 373 U. S. 427, was also pre-Berger and pre-Katz. The government agent there in-volved carried a pocket wire recorder which the Court said “was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment.” Id., at 439. Mr. Justice Brennan, dissenting, stated the philos-ophy of Katz soon to be adopted: “[T]here is a qualitative différence between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eaves-dropping and disguise. The latter do not so seri-ously intrude upon the right of privacy. The risk of being overheard by an eavesdropper or be-trayed by an informer or deceived as to the identity of one with whom one deals is probably inhérent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance cornes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy. . . . . . Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating, more indiscriminate, more truly obnoxious to a free 760 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny.” 373 U. S., at 465-466. It is urged by the Department of Justice that On Lee be established as the controlling decision in this field. I would stand by Berger and Katz and reaffirm the need for judicial supervision 2 under the Fourth Amendment of the use of electronic surveillance which, uncontrolled, promises to lead us into a police state. These were wholly pre-arranged épisodes of surveillance. The first was in the informant’s home to which respondent had been invited. The second was also in the informer’s home, the next day. The third was four days later at the home of the respondent. The fourth was in the informer’s car two days later. Twelve days after that a meeting in the informer’s home was intruded upon. The sixth occurred at a Street rendezvous. The seventh wras in the informer’s home and the eighth in a restaurant owned by respondent’s mother-in-law. So far as time is concerned there is no excuse for not seeking a warrant. And while there is always an effort involved in preparing affidavits or other evidence in support of a showing of probable cause, that burden was given constitutional sanction in the Fourth Amendment against the activities of the agents of George III. It was designed not to protect criminals but to protect everyone’s privacy. On Lee and Lapez are of a vintage opposed to Berger and Katz. However they may be explained, they are 2 Osborn v. United States, 385 U. S. 323, was held to be in that tradition, as the fédéral district judges, prior to the use of the recording device by the agent and with full knowledge of the alleged law violation involved, “authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth” of the charge. Id., at 330. UNITED STATES v. WHITE 761 745 Douglas, J., dissenting Products of the old common-law notions of trespass. Katz, on the other hand, emphasized that with few exceptions “searches conducted outside the judicial process, without prior approval by judge or magistrale, are per se unreasonable under the Fourth Amendment . . . .” 389 U. S., at 357. Camara n. Municipal Court, 387 U. S. 523, put administrative searches under the Fourth Amendment. We held that administrative actions, like other searches, implicated officiais in an invasion of privacy and that the Fourth Amendment was meant to guard against the arbitrariness of any such invasion. We said: “We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty.” Id., at 533. In Chimel v. California, 395 U. S. 752, in considering the constitutionality of a search incident to an arrest we held that, while the area in the immédiate reach of an arrestee is “reasonable” though made without a warrant, a search beyond that zone may generally be made “only under the authority of a search warrant.” Id., at 763. And in two “stop and frisk” cases, Terry v. Ohio, 392 U. S. 1, and Davis v. Mississippi, 394 U. S. 721, we held that any restraint of the person, however brief, was subject to judicial inquiry on “reasonableness” (392 U. S., at 19) and that “the Fourth Amendment governs ail intrusions by agents of the public upon personal security . . . Id., at 18 n. 15. We hâve moved far away from the rationale of On Lee and Lopez and only a retrogressive step of large dimensions would bring us back to it. The threads of thought running through our recent decisions are that these extensive intrusions into privacy 762 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. made by electronic surveillance make self-restraint by law enforcement officiais an inadéquate protection, that the requirement of warrants under the Fourth Amendment is essential to a free society.3 Monitoring, if prévalent, certainly kills free discourse and spontaneous utterances. Free discourse—a First Amendment value—may be frivolous or serious, humble or défiant, reactionary or revolutionary, profane or in good taste; but it is not free if there is surveillance.4 3 The tyranny of surveillance that is not supervised in the Fourth Amendment manner is told by Judge Gesell in United States v. Jones, 292 F. Supp. 1001, 1008-1009, where the compétition between agencies and the uncontrolled activities of subordinates ended up with Government itself playing an ignoble rôle. Cf. American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance §§4.1, 5.2 (Approved Draft 1971). 4 Congressman Mikva of Illinois, in speaking of the spread of military surveillance of civilians—another facet of the problem in the instant case—recently said: “At one pont they referred to ‘infiltrating public meetings’ at which Senator Stevenson and I spoke, and I wondered how you ‘infiltrate’ a public meeting. Perhaps they wanted to compile evidence to be used in some future military court—evidence that I was disloyal to the military establishment because I suggested that we eut manpower by ten per cent last year, or because I voted against their appropriations in the two years l’ve been here. “When they start investigating political figures, there is no place you can draw the line and maintain any kind of civilian control. . . . “We hâve become a fearful people. There was a time when we feared only our enemies abroad. Now we seem to be as fearful of our enemies at home, and depending on whom you talk to, those enemies can include people under thirty, people with foreign names, people of different races, people in the big cities. We hâve become a suspicious nation, as afraid of being destroyed from within as from without. “Unfortunately, the manifestations of that kind of fear and suspicion are police-state measures.” A Nation in Fear, The Progressive, Feb. 1971, pp. 18, 19-20. UNITED STATES v. WHITE 763 745 Douglas, J., dissenting Free discourse libérâtes the spirit, though it may produce only froth. The individual must keep some facts concerning his thoughts within a small zone of people. At the same time he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy implicit in the First and Fifth Amendments as well as in the Fourth. The philosophy of the value of privacy reflected in the Fourth Amendment’s ban on “unreasonable searches and seizures” has been forcefully stated by a former Attorney General of the United States: “Privacy is the basis of individuality. To be alone and be let alone, to be with chosen company, to say what you think, or don’t think, but to say what you will, is to be yourself. Solitude is impérative, even in a high rise apartment. Personality develops from within. To reflect is to know yourself. Character is formed through years of self-examination. Without this opportunity, character will be formed largely by uncontrolled external social stimulations. Americans are excessively homoge-nized already. “Few conversations would be what they are if the speakers thought others were listening. Silly, secret, thoughtless and thoughtful statements would ail be affected. The sheer numbers in our lives, the anonymity of urban living and the inability to influence things that are important are depersonal-izing and dehumanizing factors of modem life. To penetrate the last refuge of the individual, the pre-cious little privacy that remains, the basis of individual dignity, can hâve meaning to the quality of our lives that we cannot foresee. In terms of présent values, that meaning cannot be good. 764 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. “Invasions of privacy demean the individual. Can a society be better than the peuple composing it? When a government dégradés its citizens, or permits them to dégradé each other, however benefi-cent the spécifie purpose, it limits opportunities for individual fulfillment and national accomplish-ment. If America permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance, the price will be dear indeed. The practice is incompatible with a free society.” R. Clark, Crime in America 287 (1970). Now that the discredited decisions in On Lee and Lopez are resuscitated and revived, must everyone live in fear that every word he speaks may be transmitted or re-corded 5 and later repeated to the entire world? I can 5 Senator Edward Long, who intensively investigated wiretapping and “bugging” said: “You would be amazed at the different ways you can now be ‘bugged.’ There is today a transmitter the size of an aspirin tablet which can help transmit conversations in your room to a listening post up to 10 miles away. “An expert can devise a bug to fit into almost any piece of furniture in your room. And even if you find the bug, you will hâve no evidence of who put it there. A United States Senator was bugged by a transmitter secretly placed into a lamp which his wife was having fixed at the shop. When experts searched for the transmitter, it was gone. “A leading electronics expert told my Subcommittee last year that wiretapping and bugging in industrial espionage triples every year. He said that new bugging devices are so small and cleverly concealed that it takes search equipment costing over one hundred thousand dollars and an expert with 10 years of field expérience to discover them. Ten years ago, the same search for bugs could hâve been done with equipment costing only one-fourth as much. “In California we found a businessman who had been so frightened by electronic eavesdropping devices which had been concealed in his UNITED STATES v. WHITE 765 745 Douglas, J., dissenting imagine nothing that has a more chilling effect on people speaking their minds and expressing their views on important matters. The advocates of that régime should spend some time in totalitarian countries and learn first-hand the kind of régime they are creating here.6 office, that he is now spending thousands of dollars having his office searched each day, taking his phone apart every morning, and stationing a spécial gnard outside his office 24 hours a day. “He is one of a growing number of men in industry who live in constant fear that what they say is being listened to by their competitor.” 19 Adm. L. Rev. 442, 444. And see E. Long, The Intruders (1966). 6 “A technological breakthrough in techniques of physical surveillance now makes it possible for government agents and private persons to penetrate the privacy of homes, offices, and vehicles; to survey individuals moving about in public places; and to monitor the basic channels of communication by téléphoné, telegraph, radio, télévision, and data line. Most of the 'hardware’ for this physical surveillance is cheap, readily available to the general public, rel-atively easy to install, and not presently illégal to own. As of the 1960’s, the new surveillance technology is being used widely by government agencies of ail types and at every level of government, as well as by private agents for a rapidly growing number of busi-nesses, unions, private organizations, and individuals in every section of the United States. Increasingly, permanent surveillance devices hâve been installed in facilities used by employées or the public. While there are defenses against ‘outside’ surveillance, these are so costly and complex and demand such constant vigilance that their use is feasible only where official or private matters of the highest security are to be protected. Finally, the scientific prospects for the next decade indicate a continuing increase in the range and versatility of the listening and watching devices, as well as the possibility of computer processing of recordings to identify auto-matically the speakers or topics under surveillance. These advances will corne just at the time when personal contacts, business affairs, and government operations are being channeled more and more into electronic Systems such as data-phone lines and computer communications.” A. Westin, Privacy and Freedom 365-366 (1967). 415-649 0 - 72 - 54 766 OCTOBER TERM, 1970 Appendix I to opinion of Douglas, J., dissenting 401 U. S. III The decision not to make Katz rétroactive to any elec-tronic surveillance which occurred prior to December 18, 1967 (the day we decided Katz), is not, in my view, a tenable one for the reasons stated by Mr. Justice Harlan and me in our dissents in Desist n. United States, 394 U. S. 244, 255, 256. APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING THE WHITE HOUSE WASHINGTON May 21, 1940 CONFIDENTIAL MEMORANDUM FOR THE ATTORNEY GENERAL I hâve agreed with the broad purpose of the Suprême Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary and normal circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights. However, I am convinced that the Suprême Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation. It is, of course, well known that certain other nations hâve been engaged in the organization of propaganda of so-called “fifth columns” in other countries and in préparation for sabotage, as well as in actual sabotage. UNITED STATES v. WHITE 767 745 Appendix II to opinion of Douglas, J., dissenting It is too late to do anything about it after sabotage, assassinations and “fifth column” activities are completed. You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, in-cluding suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens. [seal] /s/ F. D. R. APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING ADMINISTRATIVELY CONFIDENTIAL THE WHITE HOUSE WASHINGTON June 30, 1965 MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES I am strongly opposed to the interception of téléphoné conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of those investigative devices to overhear téléphoné conversations, without the knowledge or consent of any of the persons involved, could resuit in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at 768 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. stake. To avoid any misunderstanding on this subject in the Fédéral Government, I am establishing the following basic guidelines to be followed by ail government agencies: (1) No fédéral personnel is to intercept téléphoné conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved, (except in connection with investigations related to the national security). (2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General. (3) Ail fédéral agencies shall immediately conform their practices and procedures to the provisions of this order. Utilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interprétation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency’s practices are fully in accord with the law and with a de-cent regard for the rights of others. Every agency head shall submit to the Attorney General within 30 days a complété inventory of ail mechanical and electronic equipment and devices used for or capable of intercepting téléphoné conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them. /s/ Lyndon B. Johnson Mr. Justice Harlan, dissenting. The uncontested facts of this case squarely challenge the continuing viability of On Lee v. United States, 343 U. S. 747 (1952). As the plurality opinion of Mr. Jus UNITED STATES v. WHITE 769 745 Harlan, J., dissenting tice White itself makes clear, important constitutional developments since On Lee mandate that we reassess that case, which has continued to govern official be-havior of this sort in spite of the subséquent érosion of its doctrinal foundations. With ail respect, my agreement with the plurality opinion ends at that point. I think that a perception of the scope and rôle of the Fourth Amendment, as elucidated by this Court since On Lee was decided, and full compréhension of the précisé issue at stake lead to the conclusion that On Lee can no longer be regarded as sound law. Nor do I think the date we decided Katz v. United States, 389 U. S. 347 (1967), can be deemed controlling both for the reasons discussed in my dissent in Desist v. United States, 394 U. S. 244, 256 (1969), and my separate opinion in Mackey v. United States (and companion cases), ante, p. 675 (the case before us being here on direct review), and because, in my view, it requires no discussion of the holding in Katz, as distinguished from its underlying rationale as to the reach of the Fourth Amendment, to comprehend the constitutional infirmity of On Lee. I Before turning to matters of precedent and policy, several preliminary observations should be made. We deal here with the constitutional validity of instantaneous third-party electronic eavesdropping, conducted by fédéral law enforcement officers, without any prior judicial approval of the technique utilized, but with the consent and coopération of a participant in the conversation,1 11 agréé with the plurality opinion, ante, at 747 n. 1, that the issue of the informer’s consent to utilization of this technique is not properly before us. Whether persons can, consistent with constitutional prohibitions, be tricked or coerced into transmitting their conversations, with or without prior judicial approval, and, if not, whether 770 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. and where the substance of the matter electronically overheard 2 is related in a fédéral criminal trial by those who eavesdropped as direct, not merely corroborative, evidence of the guilt of the nonconsenting party. The magnitude of the issue at hand is evidenced not simply by the obvious doctrinal difficulty of weighing such activity in the Fourth Amendment balance, but also, and more importantly, by the prevalence of police utili-zation of this technique. Professor Westin has docu-mented in careful detail the numerous devices that make technologically feasible the Orwellian Big Brother. Of immédiate relevance is his observation that 11 ‘participant recording,’ in which one participant in a conversation or meeting, either a police officer or a co-operating party, wears a concealed device that records the conversation or broadcasts it to others nearby . . . is used tens of thou-sands of times each year throughout the country, par-ticularly in cases involving extortion, conspiracy, nar-cotics, gambling, prostitution, corruption by police officiais . . . and similar crimes.” 3 other parties to the conversation would hâve standing to object to the admission against them of evidence so obtained, cf. Alderman v. United States, 394 U. S. 165 (1969), are questions upon which I express no opinion. 2 In the case at hand agents were also surreptitiously placed in respondent’s home at various times. No testimony by these agents was offered at trial. 3 A. Westin, Privacy and Freedom 131 (1967). This investigative technique is also used to unearth “political” crimes. “Record-ings of the private and public meetings of suspect groups [hâve] been growing. Police in Miami, Florida, used a hidden trans-mitter on a police agent to record statements made at meetings of a right-wing extremist group suspected of planning acts of terror-ism. In 1964 a police undercover agent obtained recordings of incendiary statements by the leader of a Communist splinter move-ment in Harlem, at private meetings and at a public rally, which served as the basis for his conviction for attempting to overthrow the state government.” Ibid. UNITED STATES v. WHITE 771 745 Harlan, J., dissenting Moreover, as I shall undertake to show later in this opinion, the factors that must be reckoned with in reaching constitutional conclusions respecting the use of electronic eavesdropping as a tool of law enforcement are exceedingly subtle and complex. They hâve pro-voked sharp différences of opinion both within and without the judiciary, and the entire problem has been the subject of continuing study by various governmental and nongovernmental bodies.4 4 Prior to Osborn n. United States, 385 U. S. 323 (1966), and Katz the issue before us, if raised, was usually dismissed in a routine fashion with a citation to On Lee, buttressed by a citation to Lopez v. United States, 373 U. S. 427 (1963), with no attempt to distinguish the two cases despite the narrow rationale of the latter. See, e. g., United States v. Pasquinzo, 334 F. 2d 74, 75 (CA6 1964) ; Maddox v. United States, 337 F. 2d 234 (CA5 1964); but cf. United States v. Stone, 232 F. Supp. 396 (ND Tex. 1964). The few authorities post-dating Katz hâve divided on the continued viability of the On Lee resuit, compare, e. g., United States n. Jones, 292 F. Supp. 1001 (DC 1968), and cases cited therein, 292 F. Supp., at 1008, with Dancy n. United States, 390 F. 2d 370 (CA5 1968) (Judge Fahy dissenting) ; United States v. Kaujer, 406 F. 2d 550 (CA2 1969) ; People v. Fiedler, 30 App. Div. 2d 476, 294 N. Y. S. 2d 368 (1968) (Justices Goldman and Bastow dissenting), aff’d without opinion, 24 N. Y. 2d 960, 250 N. E. 2d 75 (1969). Perhaps the most comprehensive treatments, examining both the case law and policy considérations underlying the précisé issue—electronic surveillance with the consent of one of the parties—are by Professor Green-awalt, The Consent Problem in Wiretapping & Eavesdropping: Sur-reptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col. L. Rev. 189 (1968), and Professor Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup. Ct. Rev. 133. For an interesting analysis of the impact of nonconsensual bugging on privacy and the rôle of prior judicial authorization see Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U. Pa. L. Rev. 169 (1969). In addition, see American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance § 4.1 (Approved Draft 1971); J. Landynski, Search and Seizure and the Suprême Court m OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. Finally, given the importance of electronic eavesdrop-ping as a technique for coping with the more deep-seated kinds of criminal activity, and the complexifies that are encountered in striking a workable constitutional balance between the public and private interests at stake, I believe that the courts should proceed with specially meas-ured steps in this field. More particularly, I think this Court should not foreclose itself from reconsidering doctrines that would prevent the States from seeking, inde-pendently of the niceties of fédéral restrictions as they may develop, solutions to such vexing problems, see Mapp n. Ohio, 367 U. S. 643 (1961), and Ker v. California, 374 U. S. 23 (1963), and see also Berger v. New York, 388 U. S. 41 (1967) ; Baldwin v. New York, 399 U. S. 66, 117 (1970) (dissenting opinion) ; California v. Green, 399 U. S. 149, 172 (1970) (concurring opinion). I also think that in the adjudication of fédéral cases, the Court should leave ample room for congressional developments. 198-244 (1966); Schwartz, The Légitimation of Electronic Eaves-dropping: The Politics of “Law and Order,” 67 Mich. L. Rev. 455, 495-496 (1969); S. Dash, R. Schwartz, & R. Knowlton, The Eaves-droppers 421-441 (1959); Comment, Eavesdropping, Informers, and the Right of Privacy: A Judicial Tightrope, 52 Cornell L. Q. 975 (1967); King, Electronic Surveillance and Constitutional Rights: Some Recent Developments and Observations, 33 Geo. Wash. L. Rev. 240 (1964); Note, Wiretapping and Electronic Surveillance— Title III of the Crime Control Act of 1968, 23 Rutgers L. Rev. 319 (1969); Blakey & Hancock, A Proposed Electronic Surveillance Control Act, 43 Notre Dame Law. 657 (1968); Kamisar, The Wiretapping-Eavesdropping Problem: A Professor’s View, 44 Minn. L. Rev. 891 (1960); Note, From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection, 43 N. Y. U. L. Rev. 968, 973-974 (1968); Scoular, Wiretapping and Eavesdropping Constitutional Development from Olmstead to Katz, 12 St. Louis L. J. 513 (1968) ; 20 Syracuse L. Rev. 791 (1969) ; 14 Vill. L. Rev. 758 (1969). UNITED STATES v. WHITE 773 745 Harlan, J., dissenting II On these premises I move to the problem of third-party “bugging.” To begin by tracing carefully the évolution of Fourth Amendment doctrine in post-On Lee decisions has proved useful in several respects. It serves to cast in perspective both the issue involved here and the impérative necessity for reconsidering On Lee afresh. Additionally, a full exposition of the dynamics of the décliné of the trespass rationale underlying On Lee strikingly illuminâtes the deficiencies of the plurality opinion’s retroactivity analysis. A On Lee involved circumstances virtually identical to those now before us. There, Government agents enlisted the services of Chin Poy, a former friend of Lee, who was suspected of engaging in illégal narcotics traffic. Poy was equipped with a “minifon” transmitting device which enabled outside Government agents to monitor Poy’s conversations with Lee. In the privacy of his laundry, Lee made damaging admissions to Poy which were over-heard by the agents and later related at trial. Poy did not testify. Mr. Justice Jackson, writing for five Justices, held the testimony admissible. Without reaching the question of whether a conversation could be the subject of a “seizure” for Fourth Amendment purposes, as yet an unanswered if not completely open question,5 the 5 See Goldman v. United States, 316 U. S. 129 (1942). Silverman v. United States, 365 U. S. 505 (1961), made explicit that which was still unclear after Goldman: words overheard by trespass are subject to Fourth Amendment protection. See also Wong Sun v. United States, 371 U. S. 471 (1963). 774 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. Court concluded that in the absence of a trespass,6 no constitutional violation had occurred.7 The validity of the trespass rationale was questionable even at the time the decision was rendered. In this respect On Lee rested on common-law notions and looked to a waning era of Fourth Amendment jurisprudence. Three members of the Court refused to join with Justice Jackson, and within 10 years the Court expressly dis-avowed an approach to Fourth Amendment questions that looked to common-law distinctions. See, e. g., Jones n. United States, 362 U. S. 257 (1960); Silverman v. United States, 365 U. S. 505 (1961); Lanza n. New York, 370 U. S. 139 (1962). It is, of course, true that the opinion in On Lee drew some support from a brief additional assertion that “eavesdropping on a conversation, with the connivance of one of the parties” raises no Fourth Amendment problem. 343 U. S., at 754. But surely it is a misreading of that opinion to view this unelaborated assertion as a wholly independent ground for decision. At the very least, this 6 Mr. Justice Jackson rejected petitioner’s contention that Poy’s déception vitiated Lee’s consent to his entry on the premises. 343 U. S., at 752. 7 343 U. S., at 751-752: “The conduct of Chin Poy and agent Lee did not amount to an unlawful search and seizure such as is proscribed by the Fourth Amendment. In Goldman v. United States, 316 U. S. 129 . . . , the agents had earlier committed a trespass in order to install a listening device within the room itself. Since the device failed to work, the Court expressly reserved decision as to the effect on the search-and-seizure question of a trespass in that situation. Petitioner in the instant case has seized upon that dictum, apparently on the assumption that the presence of a radio set would automati-cally bring him within the réservation if he can show a trespass. “But petitioner cannot raise the undecided question, for here no trespass was committed. Chin Poy entered a place of business with the consent, if not by the implied invitation, of the petitioner.” UNITED STATES v. WHITE 775 745 Harlan, J., dissenting rationale needs substantial buttressing if it is to persist in our constitutional jurisprudence after the decisions I dis-cuss below. Indeed, the plurality opinion in the présent case, in greatly elaborating the point, tacitly recognizes the analytic inability of this bare hypothesis to support a rule of law so profoundly important to the proper administration of justice. Moreover, if this was the true rationale of On Lee from the outset, it is difficult to see the relevance of Desist to the resolution of the instant case, for Katz surely does not speak directly to the continued viability of that ground for decision. See Katz v. United States, 389 U. S., at 363 n. (White, J., concurring). By 1963, when we decided Lopez v. United States, 373 U. S. 427, four members of the Court were prepared to pronounce On Lee and Olmstead v. United States, 277 U. S. 438 (1928), dead.8 The pyre, they rea-soned, had been stoked by decisions like Wang Sun v. United States, 371 U. S. 471 (1963), which, on the one hand, expressly brought verbal communication within the sweep of the Fourth Amendment,9 and, on the other, re- 8 Both Chief Justice Warren, in concurrence, 373 U. S., at 441, and Mr. Justice Brennan, who wrote a dissenting opinion in which he was joined by Justices Douglas and Goldberg, 373 U. S., at 446, were of the view that Olmstead and On Lee should be over-ruled. Cf. United States v. Stone, 232 F. Supp. 396 (ND Tex. 1964). 9 While Silverman v. United States, 365 U. S. 505, would seem to hâve eliminated any lingering uncertainty on this score, cf. Goldman v. United States, 316 U. S. 129, Wong Sun articulated the unspoken premise of Silverman. “The exclusionary rule has tradi-tionally barred from trial physical, tangible materials obtained either during or as a direct resuit of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U. S. 505, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of ‘papers and effects.’ Similarly, testimony as to matters observed during 776 OCTOBER TERM,. 1970 Harlan, J., dissenting 401 U. S. inforced our Silverman and Jones decisions which “re-fused to crowd the Fourth Amendment into the mold of local property law,” 373 U. S., at 460 (Brennan, J., dissenting). Although the Court’s decision in Lopez is cited by the Government as a reaffirmation of On Lee, it can hardly be thought to hâve nurtured the questionable rationale of that decision or its much-criticized ancestor, Olmstead. To the discerning lawyer Lopez could only give pause, not comfort. While the majority opinion, of which I was the author, declined to follow the course favored by the dissenting and concurring Justices by sounding the death knell for Olmstead and On Lee, our holding, de-spite an allusion to the absence of “an unlawful ... invasion of a constitutionally protected area,” 373 U. S., at 438-439, was bottomed on two premises: the corroborative use that was made of the tape recordings, which increased reliability in the factfinding process, and the absence of a “risk” not fairly assumed by petitioner. The tape recording was made by a participant in the conversation and the opinion emphasized this absence of a third-party intrusion, expressly noting that there was no “electronic eavesdropping on a private conversation which government agents could not otherwise hâve over-heard.” 373 U. S., at 440.10 As I point out in Part III an unlawful invasion has been excluded in order to enforce the basic constitutional policies. [Citation omitted.] Thus, verbal evidence which dérivés so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the présent case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” 371 U. S., at 485. While I joined Mr. Justice Clark’s dissenting opinion, 371 U. S., at 498, our différences with the majority involved only their analysis of probable cause. 10 “Stripped to its essentials, petitioner’s argument amounts to say-ing that he has a constitutional right to rely on possible flaws in the UNITED STATES v. WHITE 777 745 Harlan, J., dissenting of this opinion, it is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listen-ing in. While Lopez cited On Lee without disavowal of its holding, 373 U. S., at 438, it is entirely accurate to say that we did not there reaffirm it.11 No decision since Lopez gives a breath of life to the reasoning that led to the On Lee and Olmstead results, and it required little clairvoyance to predict the demise of the basic rationale of On Lee and Olmstead foreshadowed by our subséquent opinions in Osborn n. United States, 385 U. S. 323 (1966), and Berger v. New York, 388 U. S. 41 (1967). Only three years after Lopez, Mr. Justice Stewart writing for the Court in Osborn v. United States, supra, expressly abjured reliance on Lopez and, instead, approved identical conduct based on the “circumstances under which the tape recording was obtained in [that] case,” facts that involved “using [a recorder] under the most précisé and discriminate circumstances, circumstances which fully met the ‘requirement of particularity’ agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeach-ment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.” 373 U. S., at 439. 11 The Chief Justice and dissenters, concerned with the possibility that “the majority opinion may be interpreted as reaffirming sub silentio the resuit in On Lee v. United States,” expressly repudiated it. 373 U. S., at 441 (first emphasis added). 778 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. which the dissenting opinion in Lopez found necessary.” Osborn v. United States, 385 U. S., at 327, 329.12 Since Osborn our decisions hâve shown no tolérance for the old dividing Unes resting, as they did, on fiction and common-law distinctions without sound policy justification in the realm of values protected by the Fourth Amendment. Thus, in abolishing the “mere evidence rule” we announced that “the principal object of the Fourth Amendment is the protection of privacy rather than property,” and once again noted the trend to dis-card “fictional and procédural barriers rested on property concepts.” Warden v. Hayden, 387 U. S. 294, 304 (1967). That same Term the Court demonstrated the new flexibility in Fourth Amendment doctrine when it held that the warrant protections would be applied to administrative searches. Camara v. Municipal Court, 387 U. S. 523 (1967). Certainly if Osborn, Warden, and Camara did not plainly draw into question the vigor of earlier precedents, Berger n. New York, 388 U. S. 41, did, and expunged any remuants of former doctrine which might hâve been 12 In a footnote the Court in Osborn outlined a new approach, foreshadowed by Mr. Justice Brennan’s Lopez dissent, in which the doctrinal basis of our subséquent Fourth Amendment decisions may be said to hâve had its genesis: “The requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement. It is at least clear that ‘the procedure of antécédent justification before a magistrate that is central to the Fourth Amendment,’ [citations omitted] could be made a precondition of lawful electronic surveillance . . . .” Osborn v. United States, 385 U. S. 323, 330 n. 9, quoting Mr. Justice Brennan’s dissenting opinion in Lopez v. United States, 373 U. S., at 464. Judge Gesell in reviewing the precedents has recently concluded that it was Katz, read in conjunction with Osborn, that buried On Lee. United States v. Jones, 292 F. Supp. 1001, 1008 (DC 1968). UNITED STATES v. WHITE 779 745 Harlan, J., dissenting thought to hâve survived Osborn and Warden.13 There, the Court, following a path opened by Mr. Justice Bran-deis’ dissent in Olmstead, and smoothed in Osborn and Camara, expressed concern about scientific developments that hâve put within the reach of the Government the private communications of “anyone in almost any given situation,” 388 U. S., at 47; it left no doubt that, as a general principle, electronic eavesdropping was an invasion of privacy and that the Fourth Amendment prohibited unsupervised “bugging.” Disturbed by the extent of intrusion which “[b]y its very nature . . . is broad in scope,” and noting that “[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices,” id., at 63, the Court brought to life the principle of reasonableness adumbrated in Osborn. Mr. Justice Clark, writing for the majority, reiterated the new approach: “[T]he ‘indiscriminate use of such [bugging] devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments,’ and imposes 'a heavier responsibility on this Court in its supervision of the fairness of procedures 388 U. S., at 56, quoting from Osborn v. United States, 385 U. S. 323, 329 n. 7. Nor did the Court waver in résolve in the face of respondent’s dire prédiction that “neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment’s requirements.” 14 It 13 See Schwartz, The Légitimation of Electronic Eavesdropping: The Politics of “Law and Order,” 67 Mich. L. Rev. 455, 458-459 (1969). 14 My principal disagreement with the Court in Berger involved the wisdom of reviewing the New York statute on its face rather than focusing on the facts and circumstances of the particular case, and the exposition of the appropriate application of warrant principles to eavesdropping situations. 388 U. S., at 96-106. 780 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. was said that “[i]f that be true then the ‘fruits’ of eavesdropping devices are barred under the Amendment.” 388 U. S., at 63.15 If Berger did not flatly sound a dirge for Olmstead, it articulated principles that led Mr. Justice Douglas, by way of concurrence, to comment on its quiet burial. 388 U. S., at 64. While it was left to Katz to perform the last rites, that decision inevitably followed from Osborn and Berger. The Berger majority’s affirmative citation of On Lee for the principle that “under spécifie conditions and circumstances” eavesdropping may be law-ful, 388 U. S., at 63, serves only to underscore the emerg-ing operative assumptions: that the particular circumstances of each case will be scrutinized to the end of ascertaining the reasonableness of the search, and that will dépend in large measure on whether prior judicial authorization, based on a particularized showing, has been obtained. Katz v. United States, supra. Viewed in perspective, then, Katz added no new dimension to the law. At most it was a formai dispatch of Olmstead and the notion that such problems may usefully be resolved in the light of trespass doctrine, and, of course, it freed from spéculation what was already évident, that On Lee was completely open to question. B But the decisions of this Court since On Lee do more than demonstrate that the doctrine of that case is wholly open for reconsideration, and has been since well before Katz was decided. They also establish sound general principles for application of the Fourth Amendment that were either dimly perceived or not fully worked out 15 Cf. Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U. Pa. L. Rev. 169 (1969). UNITED STATES v. WHITE 781 745 Harlan, J., dissenting at the time of On Lee. I hâve already traced some of these principles in Part II-A, supra: that verbal communication is protected by the Fourth Amendment, that the reasonableness of a search does not dépend on the presence or absence of a trespass, and that the Fourth Amendment is principally concerned with protecting interests of privacy, rather than property rights. Especially when other recent Fourth Amendment decisions, not otherwise so immediately relevant, are read with those already discussed, the primacy of an additional general principle becomes equally évident : official investi-gatory action that impinges on privacy must typically, in order to be constitutionally permissible, be subjected to the warrant requirement. Particularly significant in this regard are Camara v. Municipal Court, 387 U. S. 523 (1967) ; Terry v. Ohio, 392 U. S. 1 (1968), and Chimel v. California, 395 U. S. 752 (1969). In Camara the Court brought under the Fourth Amendment administrative searches that had once been thought to be without its sweep. In doing so the opinion em-phasized the desirability of establishing in advance those circumstances that justified the intrusion into a home and submitting them for review to an independent as-sessor,16 principles that this Court has always deemed to be at the core of Fourth Amendment protections.17 16 See Beck v. Ohio, 379 U. S. 89, 96 (1964), where the Court emphasized the importance of “an objective predetermination” un-complicated by a présentation not “subtly influenced by the familiar shortcomings of hindsight judgment.” 17 The classic exposition of the purposes and importance of the warrant requirement is to be found in the opinion of Mr. Justice Jackson in his opinion for the Court in Johnson n. United States, 333 U. S. 10, 13-14 (1948): “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it déniés law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn 415-649 0 - 72 - 55 782 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. In bringing such searches within the ambit of the warrant requirement, Camara rejected the notion that the “less hostile” nature of the search relegated this invasion of privacy to the “periphery” of Fourth Amendment con-cerns. 387 U. S., at 530. The central considération was, the Court concluded, that these administrative actions, no less than the typical search, involved government officiais in an invasion of privacy, and that it was against the possible arbitrariness of invasion that the Fourth Amendment with its warrant machinery was meant to guard. Berger and Katz built, as noted earlier, on Osborn v. United States, supra, and Camara, and gave further expression to the principle.18 It was not enough that government agents acted with restraint, for reason-ableness must in the first instance be judged in a de-tached realm.19 by a neutral and detached magistrale instead of being judged by the officer engaged in the often compétitive enterprise of ferreting out crime. . . . The right of officers to thrust themselves into a home is . . . 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.” See also Terry v. Ohio, 392 U. S. 1 (1968); United States v. Ven-tresca, 380 U. S. 102 (1965) ; Aguilar n. Texas, 378 U. S. 108 (1964) ; Wang Sun v. United States, 371 U. S. 471 (1963); Chapman v. United States, 365 U. S. 610 (1961); Jones n. United States, 362 U. S. 257 (1960); Jones v. United States, 357 U. S. 493 (1958); Giordenello v. United States, 357 U. S. 480 (1958); United States v. Jefiers, 342 U. S. 48 (1951); McDonald n. United States, 335 U. S. 451 (1948); Trupiano n. United States 334 U. S. 699 (1948); United States v. Lejkowitz, 285 U. S. 452 (1932); Agnello n. United States, 269 U. S. 20 (1925). 18 See Part II-A, supra. See United States v. Jones, 292 F. Supp. 1001 (DC 1968). 19 “ ‘Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adhérence to judicial processes,’ United States v. Jeffers, 342 U. S. 48, 51, and that UNITED STATES v. WHITE 783 745 Harlan, J., dissenting The scope and meaning of the rule hâve emerged with even greater clarity by virtue of our holdings setting the boundaries for the exceptions. Recently, in Chimel v. California, 395 U. S. 752 (1969), we reit-erated the importance of the prior independent détermination of a neutral magistrate and underscored its centrality to the reasonableness requirement of the Fourth Amendment, and abandoned the holdings of Harris v. United States, 331 U. S. 145 (1947), and United States v. Rabinowitz, 339 U. S. 56 (1950). We were concerned by the breadth of searches occasioned by the Rabinowitz rule which frequently proved to be an invitation to a hunting expédition. Searches incident to arrest, we held, must be confined to a locus no greater than necessary to prevent injury to the arresting officer or destruction of evidence. 395 U. S., at 763, 767; cf. Terry v. Ohio, 392 U. S. 1 (1968). To complété the tapestry, the strands of doctrine re-flected in the search cases must be interwoven with the Court’s other contemporary holdings. Most signifi-searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S., at 356-357. The warrant procedure need not always entail an inquiry into the existence of probable cause in the usual sense. Cf. Camara v. Municipal Court. For example, where an informer is being sent in to investigate a dangerous crime, and there is reason to believe his person would be in danger, monitoring might be justified and a warrant issued even though no probable cause existed to believe the particular meeting would provide evidence of particular criminal activity. Cf. Warden v. Hayden, 387 U. S. 294, 298 (1967) ; McDonald v. United States, 335 U. S., at 455-456; Johnson v. United States, 333 U. S., at 14-15; Ker v. California, 374 U. S. 23 (1963); Trupi-ano v. United States, 334 U. S. 699 (1948), ail taking the view that exceptions to the warrant requirement may be made in narrowly defined spécial circumstances. 784 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. cant are Terry v. Ohio, supra, and Davis v. Mississippi, 394 U. S. 721 (1969), which were also harbingers of the new thrust in Fourth Amendment doctrine. There the Court rejected the contention that only an arrest trig-gered the “incident-to-arrest” exception to the warrant requirement of the Fourth Amendment, and held that any restraint of the person, however brief and however labeled, was subject to a reasonableness examination. 392 U. S., at 19. The controlling principle is “to recog-nize that the Fourth Amendment governs ail intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of ail the exigencies of the case, a central element in the analysis of reasonableness.” 392 U. S., at 18 n. 15. See also Davis v. Mississippi, 394 U. S., at 727.20 III A That the foundations of On Lee hâve been destroyed does not, of course, mean that its resuit can no longer stand. Indeed, the plurality opinion today fastens upon our decisions in Lopez, Lewis v. United States, 385 U. S. 206 (1966), and Hoffa v. United States, 385 U. S. 293 (1966), to resist the undercurrents of more recent cases emphasizing the warrant procedure as a safeguard to privacy. But this category provides insufficient support. In each of these cases the risk the general populace faced was different from that surfaced by the instant case. No surreptitious third ear was présent, and in each opinion that fact was carefully noted. 201 do not consider Chambers v. Maroney, 399 U. S. 42 (1970), a retreat from the general proposition established by Katz and Chimel. While I disagreed with the Court, see my separate opinion, 399 U. S., at 55, moving vehicles hâve always presented a spécial Fourth Amendment problem. Compare Carroll n. United States, 267 U. S. 132 (1925), with Agnello v. United States, 269 U. S. 20 (1925). UNITED STATES v. WHITE 785 745 Harlan, J., dissenting In Lewis, a fédéral agent posing as a potential pur-chaser of narcotics gained access to petitioner’s home and there consummated an illégal sale, the fruits of which were admitted at trial along with the testimony of the agent. Chief Justice Warren, writing for the majority, expressly distinguished the third-party overhearing involved, by way of example, in a case like Silverman v. United States, supra, noting that “there, the conduct pro-scribed was that of eavesdroppers, unknown and un-wanted intruders who furtively listened to conversations occurring in the privacy of a house.” 385 U. S., at 212. Similarly in Hofia, Mr. Justice Stewart took care to mention that “surreptitious” monitoring was not there before the Court, and so too in Lopez, supra. The plurality opinion seeks to erase the crucial distinction between the facts before us and these holdings by the following reasoning: if A can relay verbally what is re-vealed to him by B (as in Lewis and Hofta), or record and later divulge it (as in Lopez), what différence does it make if A conspires with another to betray B by con-temporaneously transmitting to the other ail that is said? The contention is, in essence, an argument that the distinction between third-party monitoring and other undercover techniques is one of form and not substance. The force of the contention dépends on the évaluation of two separable but intertwined assumptions: first, that there is no greater invasion of privacy in the third-party situation, and, second, that uncontrolled consensual surveillance in an electronic âge is a tolerable technique of law enforcement, given the values and goals of our political System.21 21 Professer Westin has observed: “It is obvions that the political System in each society will be a fondamental force in shaping its balance of privacy, since certain patterns of privacy, disclosure, and surveillance are functional neces- 786 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. The first of these assumptions takes as a point of de-parture the so-called “risk analysis” approach of Lewis, and Lopez, and to a lesser extent On Lee, or the expectations approach of Katz. See discussion in Part II, supra. While these formulations represent an advance over the unsophisticated trespass analysis of the common law, they too hâve their limitations and can, ultimately, lead to the substitution of words for analysis.22 The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and présent. Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our System of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement. This question must, in my view, be answered by assess-ing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement. For those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties, I am of the view that more than self-restraint by law enforcement officiais is required and at the least warrants sities for particular kinds of political régime. This is shown most vividly by contrasting privacy in the démocratie and the totalitarian state.” Westin, supra, n. 3, at 23. 22 See Kitch, supra, n. 4, at 141-142, 150-152. UNITED STATES v. WHITE 787 745 Harlan, J., dissenting should be necessary. Cf. Terry v. Ohio, supra; Davis v. Mississippi, supra. B The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of “informer” investigation upheld in Lewis and Hoffa. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattle-tale or the transistor, ignores the différences occasioned by third-party monitoring and recording which insures full and accurate disclosure of ail that is said, free of the possibility of error and oversight that inheres in human reporting. Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prévalent practice, it might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious, and défiant discourse—that libérâtes daily life.23 Much off-hand exchange is easily for- 23 Greenawalt, supra, n. 4; Comment, Eavesdropping, Informers, and the Right of Privacy: A Judicial Tightrope, 52 Cornell L. Q. 975, 983 (1967); Westin, supra, n. 3, at 390. Prof essor Westin, in projecting the conséquences of unsupervised participant monitoring, has observed: “[E]avesdropping with the consent of one party . . . has been the basic charter for private-detective taps and bugs, for ‘owner’ eavesdropping on facilities that are used by members of the public, and for much free-lance police eavesdropping. Allowing eavesdropping with the consent of one party would destroy the statutory 788 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. gotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformu-late a conversation without having to contend with a documented record.24 Ail these values are sacrificed by plan of limiting the offenses for which eavesdropping by device can be used and insisting on a court-order process. And as technology enables every man to carry his micro-miniaturized recorder every-where he goes and allows every room to be monitored surreptitiously by built-in equipment, permitting eavesdropping with the consent of one party would be to sanction a means of reproducing conversation that could choke off much vital social exchange.” See also separate views of Senator Hart set forth in S. Rep. No. 1097, 90th Cong., 2d Sess., 175 (1968); Proposed Législation on Wiretapping and Eavesdropping after Berger v. New York and Katz v. United States, 7 Bull. No. 2 of the Association of the Bar of the City of New York 1, 3, 22-26 (Aug. 1968). 24 From the same standpoint it may also be thought that electronic recording by an informer of a face-to-face conversation with a criminal suspect, as in Lopez, should be differentiated from third-party monitoring, as in On Lee and the case before us, in that the latter assures révélation to the Government by obviating the possi-bility that the informer may be tempted to renege in his undertaking to pass on to the Government ail that he has learned. While the continuing vitality of Lopez is not drawn directly into question by this case, candor compels me to acknowledge that the views expressed in this opinion may impinge upon that part of the reasoning in Lopez which suggested that a suspect has no right to anticipate unreliable testimony. I am now persuaded that such an approach misconceives the basic issue, focusing, as it does, on the interests of a particular individual rather than evaluating the impact of a practice on the sense of security that is the true concern of the Fourth Amendment’s protection of privacy. Distinctions do, however, exist between Lopez, where a known Government agent uses a recording device, and this case which involves third-party overhearing. However unlikely that the participant recorder will not play his tapes, the fact of the matter is that in a third-party situation the intrusion is instantaneous. Moreover, différences in the prior relationship between the investigator and the suspect may provide a focus for future distinctions. See Greenawalt, supra, n. 4. UNITED STATES v. WHITE 789 745 Harlan, J., dissenting a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant. It matters little that consensual transmittals are less obnoxious than wholly clandestine eavesdrops. This was put forward as justification for the conduct in Boyd v. United States, 116 U. S. 616 (1886), where the Government relied on mitigating aspects of the conduct in question. The Court, speaking through Mr. Justice Bradley, declined to countenance literalism: “Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and efïects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least répulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight déviations from legal modes of procedure.” 116 U. S., at 635. Finally, it is too easy to forget—and, hence, too often forgotten—that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its “risk analysis” solely in terms of the expectations and risks that “wrongdoers” or “one contemplating illégal activities” ought to bear, the plurality opinion, I think, misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk. The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society in a way that produces the results the plurality opinion ascribes to the On Lee rule. Abolition of On Lee would 790 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. not end electronic eavesdropping. It would prevent public officiais from engaging in that practice unless they first had probable cause to suspect an individual of involvement in illégal activities and had tested their version of the facts before a detached judicial officer. The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illégal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when in-stantaneously heard by others unknown to him and unfa-miliar with his situation or analyzed in a cold, formai record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield “wrongdoers,” but to secure a measure of privacy and a sense of personal security throughout our society. The Fourth Amendment does, of course, leave room for the employment of modem technology in criminal law enforcement, but in the stream of current develop-ments in Fourth Amendment law I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officiais, has no place in our society. IV I reach these conclusions notwithstanding seemingly contrary views espoused by both Congress and an American Bar Association study group.25 Both the ABA 25 See ABA Project, supra, n. 4. The commentary states at the outset: “This standard reflects the prevailing law.” The drafters apparently take as their starting point the risk analysis ap-proach, relying on cases holding that contents of letters may be revealed where otherwise lawfully obtained. Stroud v. United States, 251 U. S. 15 (1919); Ex parte Jackson, 96 U. S. 727, 737 (1878); see also Blakey & Hancock, A Proposed Electronic Surveillance Control Act, supra, n. 4, at 663, n. 11. The varions state provisions are set forth in Greenawalt, supra, n. 4, at 207-211. UNITED STATES v. WHITE 791 745 Harlan, J., dissenting study and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U. S. C. § 2510 et seq. (1964 ed., Supp. V), appear to reflect little more than this Court’s prior decisions. Indeed, the compréhensive provisions of Title III are evidence of the extent of congressional concern with the impact of electronic surveillance on the right to privacy. This concern is further manifested in the introductory section of the Senate Committee Report.26 Although §2511 (2) (c) exempts consensual and participant monitoring by law enforcement agents from the general prohibitions against surveillance without prior judicial authorization and makes the fruits admissible in court, see § 2515, congressional malaise with such conduct is evidenced by the contrastingly limited endorsement of consensual surveillance carried out by private individuals.27 While individual Congressmen expressed concern about and criticized the provisions for unsupervised consensual electronic surveillance contained in § 2511,28 the Senate Committee Report comment, to the effect that “[i]t [§ 2511 (2)(c)] largely reflects existing law,” S. Rep. No. 1097, 90th Cong., 2d Sess., 93-94 (1968), followed by citations to On Lee and Lopez,29 strongly suggests that the provisions represent not intractable approval of these practices, but rather an intention to adopt these holdings and to leave to the courts the task of determining their viability in 26 See S. Rep. No. 1097, 90th Cong., 2d Sess., 69 (1968). 27 See §2511 (2)(d), which prohibits nongovernmental recording and listening when the “communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurions act.” 28 See S. Rep. No. 1097, supra, n. 26, at 175 (remarks of Sen. Hart); 114 Cong. Rec. 11598-11599, 14470-14472. 29 S. Rep. No. 1097, supra, n. 26, at 93-94. 792 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. light of later holdings such as Berger, Osborn, and Katz.30 I find in neither the ABA study nor Title III any justification for ignoring the identifiable différence— albeit an elusive one in the présent state of knowledge— between the impact on privacy of single-party informer bugging and third-party bugging, which in my opinion justifies drawing the constitutional line at this juncture between the two as regards the necessity for obtaining a warrant. Récognition of this différence is, at the very least, necessary to preserve the openness which is at the core of our traditions and is secure only in a society that tolérâtes official invasion of privacy simply in circum-scribed situations. The Fourth Amendment protects these traditions, and places limitations on the means and circumstances by which the Government may collect information about its citizens by intruding into their personal lives. The 30 Indeed, the plain thrust of Title III appears to be to accom-modate the holdings of Berger and Katz, and provides considérable reassurance to me in adopting the views expressed herein which would doubtless, without more, cast a cloud upon the constitution-ality of § 2511. Since the Title III question has been neither briefed nor argued, as this case arose prior to its enactment, I would expressly reserve judgment should it prove upon further study that Congress had an affirmative intention to restrict warrant requirements to nonconsensual surveillance. We would then hâve to face the question, summarily dealt with in another context in Katzenbach v. Morgan, 384 U. S. 641, 651 n. 10 (1966), what deference should be given a congressional détermination that certain procedures not plainly violations of due process, should be permitted. See Green-awalt, supra, n. 4, at 232 n. 207. Whether Congress may place restrictions on bugging by local law enforcement not mandated by the Fourteenth Amendment is also an unanswered question. See Spritzer, supra, n. 15, at 177 n. 46. UNITED STATES v. WHITE 793 745 Harlan, J., dissenting spirit of the principle is captured by the oft-quoted lan-guage of Boyd v. United States, 116 U. S., at 630: “The principles laid down in this opinion [speaking of Entick v. Carrington, 19 How. St. Tr. 1029 (1765)] affect the very essence of constitutional liberty and security. They reach farther than the concrète form of the case then before the court, with its ad-ventitious circumstances; they apply to ail invasions on the part of the government and its employés of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security . . . What this means is that the burden of guarding privacy in a free society should not be on its citizens; it is the Government that must justify its need to electronically eavesdrop. V Not content to rest upon the proposition that On Lee remains sound law, the plurality opinion would also hold that the Court of Appeals erred further in disposing “of this case based on its understanding of the principles announced in the Katz case,” ante, at 754, because Desist v. United States, 394 U. S. 244 (1969), held that Katz governed only governmental conduct occurring after the decision in Katz. It is difficult to know where to begin to analyze such a truly extraordinary assertion respecting the operation of the judicial process. Because this case is here on direct review, even were the issues squarely controlled by Katz, I would unhesi-tatingly apply here the rule there adopted, for the reasons first expressed in my dissent in Desist, 394 U. S., at 256, and elaborated in my separate opinion in Mackey 794 OCTOBER TERM, 1970 Harlan, J., dissenting 401 U. S. v. United States (and companion cases), ante, p. 675. I see no purpose in repeating at this point the analysis I set forth in those opinions. Suffice it to say that, in Desist, I went to some length to point out, by discussing a hypothetical proposition, that the failure to apply any new decision by this Court to cases which had not yet run their course on direct review was inconsistent with the case-by-case approach to constitutional decision and with the proper relationship of this Court to the lower fédéral courts. In particular, I noted that the logic of Desist suggested that it would constitute error for a lower fédéral court to adopt a new constitutional rule which this Court subsequently approved. 394 U. S., at 259. Today’s opinion stands as éloquent evidence of that defect. Indeed, I find this decision even more troubling than Desist. For the errors of Desist are not merely repeated here; they are plainly compounded. Upon the plurality opinion’s own analysis of the instant case, it is clear that Katz has no direct relevance to the présent viability of On Lee. “Katz involved no révélation to the Government by a party to conversations with the défendant nor did the Court indicate in any way that a défendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.” Ante, at 749. As I hâve already shown, one need not cite Katz to demonstrate the inability of On Lee to survive recent developments without at least substantial reformulation. To hold, then, that a mere citation of Katz, or drawing upon the philosophical underpinnings of that case in order to employ a general constitutional approach in tune with that of the decisions of this Court, conflicts with the holding of Desist is to let this obsession with prospectivity run riot. UNITED STATES v. WHITE 795 745 Marshall, J., dissenting Apparently Desist is now to be understood as holding that ail lower fédéral courts are disabled from adjudi-cating on their merits ail allégations of Fourth Amendment error not squarely supported by a prior decision of this Court. If so, one wonders what purpose is served by providing intermediate appellate review of constitutional issues in the fédéral criminal process. We must not forget that this Court is not the only tribunal in the entire fédéral System charged with a responsibility for the nurture and development of the Fourth Amendment. It is one thing to disable ail fédéral courts, including this Court, from applying the settled law of the land to cases and controversies before them—as Desist does with Katz—and at least another giant step backward to pre-clude lower courts from resolving wholly disparate controversies in the light of constitutional principles. Can it be seriously contended, as the plurality opinion neces-sarily implies, that the Court of Appeals should not be reversed today on these alternative grounds had it simply omitted to discuss Katz? To force lower fédéral courts to adjudicate controversies either mechanistically or dis-ingenuously is for me indefensible. Yet this is precisely what the plurality opinion does with its assertion that it is error for lower courts to “dispose” of a case based on their “understanding of the principles announced” in Katz for the next year or so. I would hold that On Lee is no longer good law and affirm the judgment below. Mr. Justice Marshall, dissenting. I am convinced that the correct view of the Fourth Amendment in the area of electronic surveillance is one that brings the safeguards of the warrant requirement to bear on the investigatory activity involved in this case. In this regard I agréé with the dissents of Mr. Justice 796 OCTOBER TERM, 1970 Marshall, J., dissenting 401 U. S. Douglas and Mr. Justice Harlan. In short, I believe that On Lee v. United States, 343 U. S. 747 (1952), cannot be considered viable in light of the constitutional principles articulated in Katz v. United States, 389 U. S. 347 (1967), and other cases. And for reasons expressed by Mr. Justice Portas in dissent in Desist v. United States, 394 U. S. 244, 269 (1969), I do not think we should feel constrained to employ a discarded theory of the Fourth Amendment in evaluating the governmental intrusions challenged here. HILL v. CALIFORNIA 797 Syllabus HILL v. CALIFORNIA CERTIORARI TO THE SUPREME COURT OF CALIFORNIA No. 51. Argued January 19, 1970—Reargued October 21, 1970— Decided April 5, 1971 Two men, who were driving petitioner Hill’s car, were arrested for narcotics possession. A search of the car disclosed property stolen in a robbery the previous day. Both men admitted taking part in the robbery and implicated Hill, who shared an apartment with one of them. The guns used in the robbery and other stolen property were reported to be in the apartment. An investigating officer checked official records on Hill, verifying his association with one of the informants, his description, address, and make of car. The police, with probable cause to arrest Hill, but without a search or arrest warrant, went to his apartment, and there found a man matching Hill’s description. The arrestee denied that he was Hill (and, in fact, he was not), and denied knowledge of any guns in the apartment, but the police, who spotted a gun and ammunition in plain view, arrested the man, searched the apartment, and seized guns, stolen property, other evidentiary items, and two pages of Hill’s diary. Hill was convicted of robbery, sub-stantially on the basis of items seized in the search. The trial judge ruled that the police acted in good faith in believing the arrestee was Hill. The District Court of Appeal agreed that the officers acted in good faith and that the arrest was valid, but thought the search unreasonable. The California Suprême Court reversed, sustaining both the arrest and the search. Hill argues that Chimel v. California, 395 U. S. 752, narrowing the permissible scope of searches incident to arrest, decided after the affirmance of his conviction by the state courts, should be applied to his case in this Court on direct review. Held: 1. Chimel, supra, is inapplicable to searches antedating that decision, regardless of whether the case is on direct or collateral review or involves state or fédéral prisoners. Williams v. United States, ante, p. 646. P. 802. 2. The arrest and search were valid under the Fourth Amend-ment, since the police had probable cause to arrest Hill and rea-sonably believed the arrestee was Hill. Accordingly, they were entitled to do what the law allowed them to do had the arrestee in fact been Hill, that is, to search incident to arrest and to seize evi- 415-649 0 - 72 - 56 798 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. dence of the crime they had probable cause to believe Hill committed. Pp. 802-805. 3. Since Hill’s argument that the admission into evidence of pages of his diary violated his Fifth Amendment rights was not raised below, it is not properly before this Court. Pp. 805-806. 69 Cal. 2d 550, 446 P. 2d 521, affirmed. White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, and Blackmun, JJ., joined. Black, J., concurred in the resuit. Harlan, J., filed a concurring and dissenting opinion, in which Marshall, J., joined, post, p. 806. Douglas, J., took no part in the considération or decision of this case. Joseph Amato, appointée! by the Court, 396 U. S. 999, reargued the cause for petitioner. Ronald M. George, Deputy Attorney General of California, reargued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General. Keith C. Monroe filed a brief for the Orange County Criminal Courts Bar Association et al. as amici curiae urging reversai. Duke W. Dunbar, Attorney General, pro se, and John P. Moore, Deputy Attorney General, filed a brief for the Attorney General of Colorado et al. as amici curiae. Mr. Justice White delivered the opinion of the Court. On June 4, 1966, four armed men robbed a résidence in Studio City, California. On June 5, Alfred Baum and Richard Bader were arrested for possession of nar-cotics; at the time of their arrest, they were driving petitioner Hill’s car, and a search of the car produced property stolen in the Studio City robbery the day before. Bader and Baum both admitted taking part in the June 4 robbery, and both implicated Hill. Bader told the police that he was sharing an apartment with Hill at 9311 HILL v. CALIFORNIA 799 797 Opinion of the Court Sepulveda Boulevard. He also stated that the guns used in the robbery and other stolen property were in the apartment. On June 6, Baum and Bader again told the police that Hill had been involved in the June 4 robbery. One of the investigating officers then checked official records on Hill, verifying his prior association with Bader, his âge and physical description, his address, and the make of his car. The information the officer uncovered corresponded with the general descriptions by the robbery victims and the statements made by Baum and Bader. Hill concédés that this information gave the police probable cause to arrest him, and the police undertook to do so on June 6. Four officers went to the Sepulveda Boulevard apartment, verified the address, and knocked. One of the officers testified: “The door was opened and a person who fit the description exactly of Archie Hill, as I had received it from both the cards and from Baum and Bader, answered the door. ... We placed him under arrest for robbery.” The police had neither an arrest nor a search warrant. After arresting the man who answered the door, they asked him whether he was Hill and where the guns and stolen goods were. The arrestee replied that he was not Hill, that his name was Miller, that it was Hill’s apartment and that he was waiting for Hill. He also claimed that he knew nothing about any stolen property or guns, although the police testified that an automatic pistol and a clip of ammunition were lying in plain view on a coffee table in the living room where the arrest took place. The arrestee then produced identification indi-cating that he was in fact Miller, but the police were unimpressed and proceeded to search the apartment— living room, bedroom, kitchen area, and bath—for a period which one officer described as “a couple of hours.” During the course of the search, the police seized sev- 800 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. eral items: rent receipts and personal correspondence bearing Hill’s name from a dresser drawer in the bed-room; a starter pistol, two switchblade knives, a caméra and case stolen in the Studio City robbery, and two hood-masks made from white T-shirts, ail from the bedroom; a .22-caliber revolver from under the living room sofa; and two pages of petitioner Hill’s diary from a bedroom dresser drawer.1 1 Ail of these items, except the rent receipts and correspondence, were later introduced in evidence at the preliminary examination involving Baum, Bader, and Hill. A radio stolen in the Studio City robbery was also introduced, since it was found in Hill’s car when Baum and Bader were arrested. Finally, the State introduced two handwriting exemplars executed by petitioner Hill after his arrest. Although the rent receipts and personal correspondence were not introduced in evidence, one of the officers who participated in the arrest and search at the Hill apartment testified that in the same drawer where he found the diary pages “there were rent receipts, numerous stack of rent receipts at this particular apartment, made out to Archie Hill, and there were several other pièces of paper, correspondence, notes from girls, and so forth, ail to an Archie or an Archie Hill.” No objection was ofïered to this testimony. Thereafter, petitioner’s case was severed from that of Baum and Bader. Hill waived a jury and submitted the case for trial on the transcript of the preliminary hearing and the exhibits there introduced. The State called one additional witness at trial—Officer Gastaldo—who gave a more complété version of the investigation of the robbery and of the arrest of the man who turned out to be Miller. The two diary pages seized in Hill’s apartment contained what was in effect a full confession of his participation in the Studio City robbery. The additional testimony of Officer Gastaldo was critical in establishing the legality of the arrest and subséquent search. After hearing this testimony, the trial judge denied petitioner’s motion to suppress the items seized, including, of course, the diary pages. Hill presented no further evidence at trial, and was found guilty as charged. A motion for a new trial was subsequently denied, and petitioner’s appeals in the California courts followed. In his brief in this Court, petitioner attacks the admission of the diary pages on a ground never advanced below. For the reasons expressed in Part III of this opinion, we do not rule upon these contentions. HILL v. CALIFORNIA 801 797 Opinion of the Court On October 20, 1966, Hill was found guilty of robbery on the basis of evidence produced at the preliminary hearing and the trial.2 Eyewitnesses to the robbery were unable to identify Hill; the only substantial evidence of his guilt consisted of the items seized in the search of his apartment. In sustaining the admissibility of the evidence, the trial judge ruled that the arresting officers had acted in the good-faith belief that Miller was in fact Hill.3 The District Court of Appeal agreed that the officers acted in good faith and that the arrest of Miller was valid but nonetheless thought the incident search of Hill’s apartment unreasonable under the Fourth Amendment. 67 Cal. Rptr. 389 (1968).4 The California Suprême Court in turn reversed, sustaining both the arrest and the search. 69 Cal. 2d 550, 446 P. 2d 521 (1968). We granted certiorari, 396 U. S. 818 (1969), and now afïirm the judgment of the California Suprême Court. 2 See n. 1, supra. 3 The trial judge stated: “I hâve fully reviewed the evidence. I hâve determined that the officer in good faith believed that the défendant, or that the person who was arrested—not the défendant in this case—was believed by the officer in good faith to be Mr. Hill, and that whether or not this document consisting of two pages of the private diary of Mr. Hill should be admitted dépends on whether or not at the time of the arrest and the search of the premises, the officer acted in good faith.” 4 Justice Ford stated: “While the doctrine of probable cause assures a balance between the rights of the individual and those of the government with respect to the matter of arrest, the constitutional protection against unreasonable searches, particularly of a person’s home, would be less than complété if a plenary search could be justified as incident to an arrest of a person mistakenly believed by an officer to be in immédiate charge of the premises. Such a case is not one where the right of privacy must reasonably yield to the right of search.” 67 Cal. Rptr., at 391. 802 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. I Petitioner argues that Chimel v. California, 395 U. S. 752 (1969), decided after his conviction was affirmed by the California Suprême Court, should be applied to his case, which is before us on direct review. Chimel nar-rowed the permissible scope of searches incident to arrest, but in Williams v. United States and Elkanich v. United States, ante, p. 646, we held Chimel inapplicable to searches occurring before the date of decision in that case—regardless of whether a case was still on direct review when Chimel was decided, see Williams, supra, or whether a Chimel challenge was asserted in a subséquent collateral attack on a conviction. See Elkanich, supra. We also stated that in light of past decisions there was no différence in constitutional terms between state and fédéral prisoners insofar as rétroactive application to their cases of a new interprétation of the Bill of Rights is concerned. Ante, at 656. The search of Hill’s apart-ment, permissible in scope under pre-Chimel standards, will not be retrospectively invalidated because of that decision. II Based on our own examination of the record, we find no reason to disturb either the findings of the California courts that the police had probable cause to arrest Hill and that the arresting officers had a reasonable, good-faith belief that the arrestee Miller was in fact Hill, or the conclusion that “[w]hen the police hâve probable cause to arrest one party, and when they reasonably mis-take a second party for the first party, then the arrest of the second party is a valid arrest.” 69 Cal. 2d, at 553,446 P. 2d, at 523.5 The police unquestionably had probable 5 The California Suprême Court relied on People v. Kitchens, 46 Cal. 2d 260, 263-264, 294 P. 2d 17, 19-20 (1956); People v. Miller, 193 Cal. App. 2d 838, 14 Cal. Rptr. 704 (1961), and People v. HILL v. CALIFORNIA 803 797 Opinion of the Court cause to arrest Hill ; they also had his address and a veri-fied description. The mailbox at the indicated address listed Hill as the occupant of the apartment. Upon gain-ing entry to the apartment, they were confronted with one who fit the description of Hill received from various sources.6 That person claimed he was Miller, not Hill. But aliases and false identifications are not uncommon.7 Moreover, there was a lock on the door and Miller’s explanation for his mode of entry was not convincing.8 He also denied knowledge of firearms in the apartment although a pistol and loaded ammunition clip were in plain view in the room.9 The upshot was that the offi- Campos, 184 Cal. App. 2d 489, 7 Cal. Rptr. 513 (1960). See also People v. Lopez, 269 Cal. App. 2d 461, 468 n. 2, 74 Cal. Rptr. 740, 744 n. 2 (1969) (dictum). 6 At the preliminary hearing and trial, the only disparities in description established were that Miller was two inches taller and 10 pounds heavier than Hill. 7 In denying the motion to suppress, the trial judge took judicial notice of the fact “that those who are apprehended and are arrested many times attempt to avoid arrest by giving false identification.” 8 Petitioner points out that the officers had no idea how Miller gained access to the Hill apartment, and asserts that it was improper for them to assume that he was lawfully there. It is undisputed that Miller was the only occupant of the apartment. One of the officers testified that there was a lock on the door and that he had asked Miller how he had gotten into the apartment; Miller made no spécifie reply, except to reiterate that he had corne in and was waiting for Hill, the tenant. 9 Petitioner also daims that it was unreasonable for the officers to disregard Miller’s proffered identification. However, Miller’s answer to the question about firearms could reasonably be regarded as evasive, and his subséquent production of identification as therefore entitled to little weight. Petitioner stresses that Miller was subsequently booked in his own name when taken to the station house, arguing that this demonstrates that the officers’ belief that Miller was Hill was unreasonable. However, the trial judge found that the arresting officer was not responsible for the booking pro- 804 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. cers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subséquent search. But sufficient prob-ability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time. Nor can we agréé with petitioner that however valid the arrest of Miller, the subséquent search violated the Fourth Amendment. It is true that Miller was not Hill; nor did Miller hâve authority or control over the prem-ises, although at the very least he was Hill’s guest. But the question is not what evidence would hâve been admissible against Hill (or against Miller for that matter) if the police, with probable cause to arrest Miller, had arrested him in Hill’s apartment and then carried out the search at issue. Here there was probable cause to arrest Hill and the police arrested Miller in Hill’s apartment, reasonably believing him to be Hill. In these circumstances the police were entitled to do what the law would hâve allowed them to do if Miller had in fact been Hill, that is, to search incident to arrest and to seize evidence of the crime the police had probable cause to believe Hill had committed. When judged in accordance with “the factual and practical considérations of everyday life on which reasonable and prudent men, not cedures under which Miller would be booked under whatever name he gave at the station house. This conclusion is buttressed by the fact that Miller was not released from custody for a day and a half, after a thorough check of his identification revealed that he had in fact told the truth about his identity, despite his evasiveness in dealing with the officers at the apartment. HILL v. CALIFORNIA 805 797 Opinion of the Court legal technicians, act,” Brinegar v. United States, 338 U. S. 160, 175 (1949), the arrest and subséquent search were reasonable and valid under the Fourth Amendment. III Finally, in his brief in this Court, petitioner argues that the admission in evidence of the two pages of his diary— pages which contained what amounted to a confession of the robbery—violated the Fifth Amendment under Boyd v. United States, 116 U. S. 616 (1886). Counsel for Hill conceded at oral argument that the Fifth Amendment issue was not raised at trial. Nor was the issue raised, briefed, or argued in the California appellate courts.10 The pétition for certiorari likewise ignored it. In this posture of the case, the question, although briefed and argued here, is not properly before us. In Cardinale v. Louisiana, 394 U. S. 437 (1969), certiorari was granted to consider the constitutionality of a Louisiana statute, but at oral argument it developed that the fédéral question had never been raised, preserved, or passed upon in the state courts. Relying on a long line of cases, we dismissed the writ for want of jurisdiction. 394 U. S,, at 439. In addition, we stated that there were sound policy reasons for adhering to such a rule. In the context of that case, we indicated the desirability of allowing state courts to pass first on the constitutionality of state statutes in light of a fédéral constitutional challenge ; this assures both an adéquate record and that the States hâve first opportunity to provide a definitive interprétation of their statutes. We also indicated that a fédéral habeas corpus remedy might remain if no state procedure for raising the issue was available following dismissal of the writ. These considérations are no less applicable in this 10 Tr. of Oral Rearg. 34-35. 806 OCTOBER TERM, 1970 Opinion of Harlan, J. 401 U. S. case. We therefore do not reach the Fifth Amendment question and affirm the judgment of the Suprême Court of California. It is so ordered. Mr. Justice Black concurs in the resuit. Mr. Justice Douglas took no part in the considération or the decision of this case. Mr. Justice Harlan, whom Mr. Justice Marshall joins, concurring in part and dissenting in part. I agréé with the Court’s opinion except for its conclusion that the Chimel case is not to be applied to this one. Two Terms ago, in Chimel v. California, 395 U. S. 752 (1969), we held that a search without a warrant, but incident to a lawful arrest, must be narrowly confined in scope if it is to pass constitutional muster. In such circumstances, we said: “There is ample justification ... for a search of the arrestee’s person and the area ‘within his immédiate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. “There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through ail the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adhérence to judicial processes’ mandated by the Fourth Amendment requires no less.” 395 U. S., at 763 (footnote omitted). HILL v. CALIFORNIA 807 797 Opinion of Harlan, J. The search here involved, fully described in the Court’s opinion, plainly exceeded the bounds set forth in Chimel. The State contends that the search here was consistent with Chimel because conducted in the evening when it was not possible to obtain a search warrant. Whatever validity such a limiting principle might hâve in other contexts, it certainly cannot properly be invoked here. Baum and Bader had implicated Hill at least 24 hours prior to the search of Hill’s apartment. Moreover, the State does not explain why it would not hâve been possible to observe the apartment after the mistaken arrest of Miller as Hill and then test before a magistrate the validity of their belief that they had probable cause for the issuance of a warrant authorizing a complété search of the apartment. Because I believe this case reveals an obvious violation of Chimel and because I consider we are duty bound to apply the principles there enunciated to cases, like this one, before us on direct review, see my separate opinion in Mackey v. United States (and companion cases), ante, p. 675, decided today, I am compelled to cast my vote for reversai of the judgment of the Suprême Court of California. 808 OCTOBER TERM, 1970 Syllabus 401 U. S. REWIS et al. v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 5342. Argued January 19, 1971— Decided April 5, 1971 Petitioners conducted a lottery operation in Florida, near the Georgia border. They were convicted along with two Georgia residents who placed bets at petitioners’ establishment, of violating 18 U. S. C. § 1952, the Travel Act, which prohibits Interstate travel with the intent to “promote, manage, establish, carry on, or facili-tate” certain illégal activity. The District Court instructed the jury that if the Georgia bettors traveled to Florida for the purpose of gambling, they violated the Act, and that a défendant could be found guilty under the aiding and abetting statute, 18 U. S. C. § 2, without proof that he had personally performed every act constituting the charged offense. The Court of Appeals reversed the convictions of the Georgia bettors, holding that § 1952 did not make it a fédéral crime merely to cross a state line to place a bet, but upheld petitioners’ convictions on the ground that gambling establishment operators are responsible for the Interstate travel of their customers. Held: Conducting a gambling operation fre-quented by out-of-state bettors does not, without more, constitute a violation of the Travel Act. Pp. 811-814. 418 F. 2d 1218, reversed. Marshall, J., delivered the opinion of the Court, in which ail members joined except White, J., who took no part in the decision of the case. Albert J. Datz argued the cause and filed briefs for petitioners. Sidney M. Glazer argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Béatrice Rosenberg, and Michael G. Kelly. REWIS v. UNITED STATES 809 808 Opinion of the Court Mr. Justice Marshall delivered the opinion of the Court. In this case, petitioners challenge their convictions under the Travel Act, 18 U. S. C. § 1952, which prohibas Interstate travel in furtherance of certain criminal activity.1 Although the United States Court of Appeals for the Fifth Circuit narrowed an expansive interprétation of the Act, the Court of Appeals affirmed petitioners’ convictions. For the reasons stated below, we reverse. Petitioners, James Rewis and Mary Lee Williams, were convicted along with two other défendants in the United States District Court for the Middle District of Florida.2 1 Title 18 U. S. C. § 1952 (1964 ed. and Supp. V) provides: “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— “(1) distribute the proceeds of any unlawful activity; or “(2) commit any crime of violence to further any unlawful activity; or “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, “and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. “(b) As used in this section 'unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Fédéral excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.” 2 Petitioners were convicted of eight substantive violations under § 1952 and of conspiracy to violate the section. Petitioner Rewis was sentenced to five years’ imprisonment on each count, to run concurrently. Petitioner Williams was sentenced to three years’ imprisonment on each count, to run concurrently, subject to parole under 18 U. S. C. §4208 (a) (2). Petitioner Rewis was also convicted of two counts of having failed to purchase a wagering tax 810 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Their convictions arose from a lottery, or numbers operation, which petitioners admittedly ran in Yulee, Florida, a small community located a few miles south of the Georgia-Florida state line. Petitioners are Florida résidents, and there is no evidence that they at any time crossed state lines in connection with the operation of their lottery. The other two convicted défendants are Georgia residents who traveled from their Georgia homes to place bets at petitioners’ establishment in Yulee. The District Court instructed the jury that mere bettors in a lottery violated Florida law, and that if the bettors traveled Interstate for the purpose of gambling, they also violated the Travel Act. Presumably referring to petitioners, the District Court further charged that a de-fendant could be found guilty under the aiding and abetting statute, 18 U. S. C. § 2,3 without proof that he personally performed every act constituting the charged offense. On appeal, the Fifth Circuit held that § 1952 did not make it a fédéral crime merely to cross a state line for the purpose of placing a bet and reversed the convictions of the two Georgia residents because the evidence presented at trial was insufficient to show that they were anything other than customers of the gambling operation.4 However, the Court of Appeals upheld peti- stamp. These latter two convictions were reversed by the Court of Appeals under the intervening decisions of this Court in Marchetti n. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968). 318 U. S. C. § 2 provides: “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. “(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” 4 418 F. 2d 1218. The Government has not sought review of that part of the Court of Appeals decision reversing the conviction of the two Georgia residents. REWIS v. UNITED STATES 811 808 Opinion of the Court tioners’ convictions on the ground that operators of gambling establishments are responsible for the Interstate travel of their customers. 418 F. 2d 1218, 1222. We agréé with the Court of Appeals that it cannot be said, with certainty sufficient to justify a criminal conviction, that Congress intended that interstate travel by mere customers of a gambling establishment should violate the Travel Act.5 But we are unable to conclude that conducting a gambling operation frequented by out-of-state bettors, by itself, violâtes the Act. Section 1952 prohibits interstate travel with the intent to “promote, manage, establish, carry on, or facilitate” certain kinds of illégal activity ; and the ordinary meaning of this language suggests that the traveler’s purpose must involve more than the desire to patronize the illégal activity. Legislative history of the Act is limited, but does reveal that § 1952 was aimed primarily at organized crime and, more specifically, at persons who résidé in one State while operating or managing illégal activities located in another.6 In addition, we are struck by what Congress 5 Both parties correctly concédé that the questions in this case are solely statutory. No issue of constitutional dimension is presented. 6 Incorporated in the Senate report (S. Rep. No. 644, 87th Cong., lst Sess., 2-3, dated July 27, 1961) the following appears: “The bill, S. 1653, was introduced by the chairman of the committee, Senator James O. Eastland, on April 18, 1961, on the recommendation of the Attorney General, Robert F. Kennedy, as a part of the Attorney General’s legislative program to combat organized crime and racketeering. “The Attorney General testified before the committee in support of the bill, S. 1653, on June 6, 1961, and commented: “ ‘We are seeking to take effective action against the racketeer who conducts an unlawful business but lives far from the scene in comfort and safety, as well as against other hoodlums. “ ‘Let me say from the outset that we do not seek or intend to impede the travel of anyone except persons engaged in illégal busi-nesses as spelled out in the bill. . . . “ ‘The target clearly is organized crime. The travel that would 812 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. did not say. Given the ease with which citizens of our Nation are able to travel and the existence of many multi-state metropolitan areas, substantial amounts of criminal activity, traditionally subject to state régulation, are pa-tronized by out-of-state customers. In such a context, Congress would certainly recognize that an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited fédéral police resources, and might well produce situations in which the géographie origin of customers, a matter of happenstance, would transform relatively minor state offenses into fédéral félonies. It is not for us to weigh the merits of these factors, but the fact that they are not even discussed in the legislative history of § 1952 strongly suggests that Congress did not intend that the Travel Act should apply to criminal activity solely because that activity is at times patronized by persons from another State. In short, neither statutory language nor legislative history supports such a broad-ranging interprétation of § 1952. And even if this lack of support were less apparent, ambiguity con-cerning the ambit of criminal statutes should be resolved in favor of lenity, Bell v. United States, 349 U. S. 81, 83 (1955). The Government concédés as much, but offers an alternative construction of the Travel Act—that the Act is violated whenever the operator of an illégal establish-be banned is travel “in furtherance of a business enterprise” which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuons course of conduct sufficient for it to be termed a business enterprise.’ “ 'Our investigations also hâve made it quite clear that only the Fédéral Government can shut off the funds which permit the top men of organized crime to live far from the scene and, therefore, remain immune from the local officiais.’ ” REWIS v. UNITED STATES 813 808 Opinion of the Court ment can reasonably foresee that customers will cross state lines for the purpose of patronizing the illégal operation or whenever the operator actively seeks to attract business from another State. The first half of this proposed interprétation—reasonable foreseeability of Interstate patronage—does not merit acceptance. Whenever individuals actually cross state lines for the purpose of patronizing a criminal establishment, it will almost al-ways be reasonable to say that the operators of the establishment could hâve foreseen that some of their customers would corne from out of State. So, for prac-tical purposes, this alternative construction is almost as expansive as interprétations that we hâve already rejected. In addition, there is little, if any, evidence that Congress intended that foreseeability should govern criminal liability under § 1952. There may, however, be greatei support for the second half of the Government’s proposed interprétation—that active encouragement of Interstate patronage violâtes the Act. Of course, the conduct deemed to constitute active encouragement must be more than merely conducting the illégal operation; otherwise, this interprétation would only restate other constructions which we hâve rejected. Still, there are cases in which fédéral courts hâve cor-rectly applied § 1952 to those individuals whose agents or employées cross state lines in furtherance of illégal activity, see, e. g., United States v. Chambers, 382 F. 2d 910, 913-914 (CA6 1967) ; United States v. Barrow, 363 F. 2d 62, 64-65 (CA3 1966), cert. denied, 385 U. S. 1001 (1967); United States v. Zizzo, 338 F. 2d 577, 580 (CA7 1964), cert. denied, 381 U. S. 915 (1965), and the Government argues that the principles of those decisions should be extended to cover persons who actively seek interstate patronage. Although we are cited to no cases that hâve gone so far and although much of what we hâve said casts substantial doubt on the Government’s 415-649 0 - 72 - 57 814 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. broad argument, there may be occasional situations in which the conduct encouraging interstate patronage so closely approximates the conduct of a principal in a criminal agency relationship that the Travel Act is violated. But we need not rule on this part of the Government’s theory because it is not the interprétation of § 1952 under which petitioners were convicted. The jury was not charged that it must find that petitioners actively sought interstate patronage. And we are not informed of any action by petitioners, other than actually conduct-ing their lottery, that was designed to attract out-of-state customers. As a resuit, the Government’s proposed interprétation of the Travel Act cannot be employed to uphold these convictions. Reversed. Mr. Justice White took no part in the decision of this case. ROGERS v. BELLEI 815 Syllabus ROGERS, SECRETARY OF STATE v. BELLEI APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 24. Argued January 15, 1970—Reargued November 12, 1970— Decided April 5, 1971 Appellee challenges the constitutionality of § 301 (b) of the Immigration and Nationality Act of 1952, which provides that one who acquires United States citizenship by virtue of having been born abroad to parents, one of whom is an American citizen, who has met certain résidence requirements, shall lose his citizenship unless he résides in this country continuously for five years between the âges of 14 and 28. The three-judge District Court held the section unconstitutional, citing Afroyim v. Rusk, 387 U. S. 253, and Schneider n. Rush, 377 U. S. 163. Held: Congress has the power to impose the condition subséquent of résidence in this country on appellee, who does not corne within the Fourteenth Amend-ment’s définition of citizens as those “born or naturalized in the United States,” and its imposition is not unreasonable, arbitrary, or unlawful. Afroyim v. Rusk, supra, and Schneider n. Rusk, supra, distinguished. Pp. 820-836. 296 F. Supp. 1247, reversed. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and White, JJ., joined. Black, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 836. Brennan, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 845. Solicitor General Griswold argued the cause for ap-pellant on the reargument. With him on the brief were Assistant Attorney General Wilson and Charles Gordon. Joseph J. Connolly argued the cause for appellant on the original argument. O. John Rogge reargued the cause and filed a brief for appellee. Richard N. Gardner argued the cause on the reargument for the Association of American Wives of Europeans 816 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. et al. as amici curiae urging affirmance. With him on the brief were Alexis C. Coudert, Eugene L. Girden, Joseph H. Gordon, David M. Gooder, and Arlene Tuck Ulman. James Sinclair, pro se, filed a brief as amicus curiae urging reversai. Donald L. Ungar filed a brief for Vicente Gonzalez-Gomez as amicus curiae urging affirmance. Mr. Justice Blackmun delivered the opinion of the Court. Under constitutional challenge here, primarily on Fifth Amendment due process grounds, but also on Fourteenth Amendment grounds, is § 301 (b) of the Immigration and Nationality Act of June 27, 1952, 66 Stat. 236, 8 U. S. C. §1401 (b). Section 301 (a) of the Act, 8 U. S. C. § 1401 (a), defines those persons who “shall be nationals and citizens of the United States at birth.” Paragraph (7) of § 301 (a) includes in that définition a person born abroad “of parents one of whom is an alien, and the other a citizen of the United States” who has met specified conditions of résidence in this country. Section 301 (b), however, provides that one who is a citizen at birth under § 301 (a) (7) shall lose his citizenship unless, after âge 14 and before âge 28, he shall corne to the United States and be physi-cally présent here continuously for at least five years. We quote the statute in the margin.1 1 “Sec. 301. (a) The following shall be nationals and citizens of the United States at birth : “(1) a person born in the United States, and subject to the jurisdiction thereof; “(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to ROGERS v. BELLEI 817 815 Opinion of the Court The plan thus adopted by Congress with respect to a person of this classification was to bestow citizenship at birth but to take it away upon the person’s failure to comply with a post-age-14 and pre-age-28 residential requirement. It is this deprival of citizenship, once bestowed, that is under attack here. I The facts are stipulated: 1. The appellee, Aldo Mario Bellei (hereinafter the plaintiff), was boni in Italy on December 22, 1939. He is now 31 years of âge. 2. The plaintiff’s father has always been a citizen of Italy and never has acquired United States citizenship. The plaintiff’s mother, however, was born in Philadelphia in 1915 and thus was a native-born United States citizen. She has retained that citizenship. Moreover, she has ful-filled the requirement of § 301 (a) (7) for physical pres- the birth of such person, was physically présent in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the âge of fourteen years: Provided .... “(b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall corne to the United States prior to attaining the âge of twenty-three years and shall immédiat ely following any such coming be continuously physically présent in the United State[s] for at least five years: Provided, That such physical presence follows the attainment of the âge of fourteen years and précédés the âge of twenty-eight years. “(c) Subsection (b) shall apply to a person born abroad subséquent to May 24, 1934 . . . Section 301 (a) (7) was amended November 6, 1966, by Pub. L. 89-770, 80 Stat. 1322, by way of additions to the proviso, omitted above; these hâve no relevancy here. Pub. L. 85-316, § 16, 71 Stat. 644, 8 U. S. C. § 1401b, enacted in September 1957, provides that absences of less than 12 months in the aggregate “shall not be considered to break the continuity of [the] physical presence” required by §301 (b). 818 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ence in the United States for 10 years, more than five of which were after she attained the âge of 14 years. The mother and father were married in Philadelphia on the mother’s 24th birthday, March 14, 1939. Nine days later, on March 23, the newlyweds departed for Italy. They hâve resided there ever since. 3. By Italian law the plaintiff acquired Italian citizenship upon his birth in Italy. He retains that citizenship. He also acquired United States citizenship at his birth under Rev. Stat. § 1993, as amended by the Act of May 24, 1934, § 1, 48 Stat. 797, then in effect.2 That version of the statute, as does the présent one, contained a résidence condition applicable to a child born abroad with one alien parent. 4. The plaintiff resided in Italy from the time of his birth until recently. He currently résides in England, where he has employment as an electronics engineer with an organization engaged in the NATO defense program. 5. The plaintiff has corne to the United States five different times. He was physically présent here during the following periods: April 27 to July 31, 1948 July 10 to October 5, 1951 June to October 1955 2 “Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States pre-vious to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child cornes to the United States and résides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.” ROGERS v. BELLEI 819 815 Opinion of the Court December 18, 1962 to February 13, 1963 May 26 to June 13, 1965. On the first two occasions, when the plaintif! was a boy of eight and 11, he entered the country with his mother on her United States passport. On the next two occasions, when he was 15 and just under 23, he entered on his own United States passport and was admitted as a citizen of this country. His passport was first issued on June 27, 1952. His last application approval, in August 1961, contains the notation “Warned abt. 301 (b).” The plaintiff’s United States passport was periodically approved to and including December 22, 1962, his 23d birthday. 6. On his fifth visit to the United States, in 1965, the plaintiff entered with an Italian passport and as an alien visitor. He had just been married and he came with his bride to visit his maternai grandparents. 7. The plaintiff was warned in writing by United States authorities of the impact of § 301 (b) when he was in this country in January 1963 and again in November of that year when he was in Italy. Sometime after February 11, 1964, he was orally advised by the American Embassy at Rome that he had lost his United States citizenship pursuant to §301 (b). In November 1966 he was so notified in writing by the American Consul in Rome when the plaintiff requested another American passport. 8. On March 28, 1960, plaintiff registered under the United States Sélective Service laws with the American Consul in Rome. At that time he already was 20 years of âge. He took in Italy, and passed, a United States Army physical examination. On December 11, 1963, he was asked to report for induction in the District of Columbia. This induction, however, was then deferred because of his NATO defense program employment. At the time of deferment he was warned of the danger of losing his United States citizenship if he did not comply 820 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. with the résidence requirement. After February 14,1964, Sélective Service advised him by letter that, due to the loss of his citizenship, he had no further obligation for United States military service. Plaintiff thus concededly failed to comply with the conditions imposed by § 301 (b) of the Act. II The plaintiff instituted the présent action against the Secretary of State in the Southern District of New York. He asked that the Secretary be enjoined from carrying out and enforcing § 301 (b), and also requested a declaratory judgment that § 301 (b) is unconstitutional as vio-lative of the Fifth Amendment’s Due Process Clause, the Eighth Amendment’s Punishment Clause, and the Ninth Amendment, and that he is and always has been a native-born United States citizen. Because, under 28 U. S. C. § 1391 (e), the New York venue was improper, the case was transferred to the District of Columbia. 28 U. S. C. § 1406 (a). A three-judge District Court was convened. With the facts stipulated, cross motions for summary judgment were filed. The District Court ruled that § 301 (b) was unconstitutional, citing Ajroyim n. Rusk, 387 U. S. 253 (1967), and Schneider v. Rusk, 3T7 U. S. 163 (1964), and sustained the plaintiff’s summary judgment motion. Bellei v. Rusk, 296 F. Supp. 1247 (DC 1969). This Court noted probable jurisdiction, 396 U. S. 811 (1969), and, after argument at the 1969 Term, restored the case to the calendar for reargument. 397 U. S. 1060 (1970). III The two cases primarily relied upon by the three-judge District Court are, of course, of particular significance here. ROGERS v. BELLEI 821 815 Opinion of the Court Schneider v. Rusk, 377 U. S. 163 (1964). Mrs. Schneider, a German national by birth, acquired United States citizenship derivatively through her mother’s naturalization in the United States. She came to this country as a small child with her parents and remained here until she finished college. She then went abroad for graduate work, was engaged to a German national, married in Germany, and stayed in résidence there. She declared that she had no intention of returning to the United States. In 1959, a passport was denied by the State Department on the ground that she had lost her United States citizenship under the spécifie provisions of § 352 (a)(l) of the Immigration and Nationality Act, 8 U. S. C. § 1484 (a)(l), by continuous résidence for three years in a foreign state of which she was formerly a national. The Court, by a five-to-three vote, held the statute violative of Fifth Amendment due process because there was no like restriction against foreign résidence by native-born citizens. The dissent (Mr. Justice Clark, joined by Justices Harlan and White) based its position on what it re-garded as the long acceptance of expatriating naturalized citizens who voluntarily return to résidence in their native lands; possible international complications; past decisions approving the power of Congress to enact statutes of that type; and the Constitution’s distinctions between native-born and naturalized citizens. Afroyim v. Rusk, 387 U. S. 253 (1967). Mr. Afroyim, a Polish national by birth, immigrated to the United States at âge 19 and after 14 years here acquired United States citizenship by naturalization. Twenty-four years later he went to Israël and voted in a political élection there. In 1960 a passport was denied him by the State Department on the ground that he had lost his United States citizenship under the spécifie provisions of § 349 (a)(5) of the Act, 8 U. S. C. § 1481 (a)(5), by 822 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. his foreign voting. The Court, by a five-to-four vote, held that the Fourteenth Amendment’s définition of citizenship was significant ; that Congress has no “general power, express or implied, to take away an American citizen’s citizenship without his assent,” 387 U. S., at 257; that Congress’ power is to provide a uniform rule of naturalization and, when once exercised with respect to the individual, is exhausted, citing Mr. Chief Justice Marshall’s well-known but not uncontroversial dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827 (1824); and that the “undeniable purpose” of the Fourteenth Amendment was to make the recently con-ferred “citizenship of Negroes permanent and secure” and “to put citizenship beyond the power of any governmental unit to destroy,” 387 U. S., at 263. Perez v. Brownell, 356 U. S. 44 (1958), a five-to-four holding within the decade and precisely to the opposite effect, was overruled. The dissent (Mr. Justice Harlan, joined by Justices Clark, Stewart, and White) took issue with the Court’s claim of support in the legislative history, would eluci-date the Marshall dictum, and observed that the adoption of the Fourteenth Amendment did not deprive Congress of the power to expatriate on permissible grounds consistent with “other relevant commands” of the Constitution. 387 U. S., at 292. It is to be observed that both Mrs. Schneider and Mr. Afroyim had resided in this country for years. Each had acquired United States citizenship here by the naturalization process (in one case dérivative and in the other direct) prescribed by the National Législature. Each, in short, was covered explicitly by the Fourteenth Amendment’s very first sentence: “Ail persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they résidé.” This, of course, ac- ROGERS v. BELLEI 823 815 Opinion of the Court counts for the Court’s emphasis in Ajroyim upon “Fourteenth Amendment citizenship.” 387 U. S., at 262. IV The statutes culminating in § 301 merit review: 1. The very first Congress, at its Second Session, pro-ceeded to implement its power, under the Constitution’s Art. I, § 8, cl. 4, to “establish an uniform Rule of Naturalization” by producing the Act of March 26, 1790, 1 Stat. 103. That statute, among other things, stated, “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided. That the right of citizenship shall not descend to persons whose fathers hâve never been résident in the United States ... P 2. A like provision, with only minor changes in phrasing and with the same emphasis on paternal résidence, was continuously in effect through three succeeding naturalization Acts. Act of January 29, 1795, § 3, 1 Stat. 415; Act of April 14, 1802, § 4, 2 Stat. 155; Act of Febru-ary 10, 1855, c. 71, § 1, 10 Stat. 604. The only signifi-cant différence is that the 1790, 1795, and 1802 Acts read retrospectively, while the 1855 Act reads prospec-tively as well. See Weedin v. Chin Bow, 274 U. S. 657, 664 (1927), and Montana v. Kennedy, 366 U. S. 308, 311 (1961). 3. Section 1 of the 1855 Act, with changes unim-portant here, was embodied as § 1993 of the Revised Statutes of 1874.3 3 “Ail children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.” 824 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. 4. The Act of March 2, 1907, § 6, 34 Stat. 1229, provided that ail children born abroad who were citizens under Rev. Stat. § 1993 and who continued to résidé elsewhere, in order to receive governmental protection, were to record at âge 18 their intention to become residents and remain citizens of the United States and were to take the oath of allegiance upon attaining their majority.4 5. The change in § 1993 effected by the Act of May 24, 1934, is reflected in n. 2, supra. This eliminated the theretofore imposed restriction to the paternal parent and prospectively granted citizenship, subject to a five-year continuous résidence requirement and an oath, to the foreign-born child of either a citizen father or a citizen mother. This was the form of the statute at the time of plaintiff’s birth on December 22, 1939. 6. The Nationality Act of 1940, § 201, 54 Stat. 1138, contained a similar condition directed to a total of five years’ résidence in the United States between the âges of 13 and 21.5 4 “That ail children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to résidé outside the United States shall, in order to receive the protection of this Government, be required upon reaching the âge of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority.” 5 Sec. 201. The following shall be nationals and citizens of the United States at birth: “(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years’ résidence in the United States or one of its outlying possessions, at least five of which were after attaining the âge of sixteen years, ROGERS v. BELLEI 825 815 Opinion of the Court 7. The Immigration and Nationality Act, by its § 407, 66 Stat. 281, became law in December 1952. Its § 301 (b) contains a five years’ continuons résidence condition (alleviated, with the 1957 amendment, see n. 1, by an allowance for absences less than 12 months in the aggregate) directed to the period between 14 and 28 years of âge. The statutory pattern, therefore, developed and ex-panded from (a) one, established in 1790 and enduring through the Revised Statutes and until 1934, where citizenship was specifically denied to the child born abroad of a father who never resided in the United States; to (b), in 1907, a governmental protection condition for the child born of an American citizen father and residing abroad, dépendent upon a déclaration of intent and the oath of allegiance at majority; to (c), in 1934, a condition, for the child born abroad of one United States citizen parent and one alien parent, of five years’ con-tinuous résidence in the United States before âge 18 and the oath of allegiance within six months after majority; to (d), in 1940, a condition, for that child, of five years’ résidence here, not necessarily continuons, between âges 13 and 21; to (e), in 1952, a condition, the other being an alien: Provided, That in order to retain such citizenship, the child must résidé in the United States or its out-lying possessions for a period or periods totaling five years between the âges of thirteen and twenty-one years: Provided jurther, That, if the child has not taken up a résidence in the United States or its outlying possessions by the time he reaches the âge of sixteen years, or if he résides abroad for such a time that it becomes impossible for him to complété the five years’ résidence in the United States or its outlying possessions before reaching the âge of twenty-one years, his American citizenship shall thereupon cease. “(h) The foregoing provisions of subsection (g) concerning rétention of citizenship shall apply to a child born abroad subséquent to May 24, 1934.” 826 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. for that child, of five years’ continuous résidence here, with allowance, between âges 14 and 28. The application of these respective statutes to a person in plaintiff Bellei’s position produces the following results: 1. Not until 1934 would that person hâve had any conceivable claim to United States citizenship. For more than a century and a half no statute was of assistance. Maternai citizenship afforded no benefit. One may observe, too, that if Mr. Bellei had been born in 1933, instead of in 1939, he would hâve no claim even today. Montana v. Kennedy, supra. 2. Despite the récognition of the maternai root by the 1934 amendment, in effect at the time of plaintiff’s birth, and despite the continuing liberalization of the succeed-ing statutes, the plaintiff still would not be entitled to full citizenship because, although his mother met the condition for her résidence in the United States, the plaintiff never did fulfill the residential condition imposed for him by any of the statutes. 3. This is so even though the liberalizing 1940 and 1952 statutes, enacted after the plaintiff’s birth, were applicable by their terms to one born abroad subséquent to May 24, 1934, the date of the 1934 Act, and were available to the plaintiff. See nn. 5 and 1, supra. Thus, in summary, it may be said fairly that, for the most part, each successive statute, as applied to a for-eign-born child of one United States citizen parent, moved in a direction of leniency for the child. For plaintiff Bellei the statute changed from complété disqualification to citizenship upon a condition subséquent, with that condition being expanded and made less oner-ous, and, after his birth, with the succeeding liberalizing provisions made applicable to him in replacement of the stricter statute in effect when he was born. The plain- ROGERS v. BELLEI 827 815 Opinion of the Court tiff nevertheless failed to satisfy any form of the condition. V It is évident that Congress felt itself possessed of the power to grant citizenship to the foreign born and at the same time to impose qualifications and conditions for that citizenship. Of course, Congress obviously felt that way, too, about the two expatriation provisions invali-dated by the decisions in Schneider and Afroyim. We look again, then, at the Constitution and further indulge in history’s assistance: Of initial significance, because of its being the founda-tion stone of the Court’s decisional structure in Afroyim, and, perhaps by a process of after-the-fact osmosis, of the earlier Schneider as well, is the Fourteenth Amend-ment’s opening sentence: “Ail persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they résidé.” The central fact, in our weighing of the plaintiff’s claim to continuing and therefore current United States citizenship, is that he was born abroad. He was not born in the United States. He was not naturalized in the United States. And he has not been subject to the jurisdiction of the United States. Ail this being so, it seems indis-putable that the first sentence of the Fourteenth Amendment has no application to plaintiff Bellei. He simply is not a Fourteenth-Amendment-first-sentence citizen. His posture contrasts with that of Mr. Afroyim, who was naturalized in the United States, and with that of Mrs. Schneider, whose citizenship was dérivative by her présence here and by her mother’s naturalization here. 828 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. The plaintiffs claim thus must center in the statutory power of Congress and in the appropriate exercise of that power within the restrictions of any pertinent constitutional provisions other than the Fourteenth Amendment’s first sentence. The reach of congressional power in this area is readily apparent : 1. Over 70 years ago the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects. United States v. Wang Kim Ark, 169 U. S. 649, 668-671 (1898). The Court concluded that “naturalization by descent” was not a common-law concept but was dépendent, instead, upon statutory enactment. The statutes examined were 25 Edw. 3, Stat. 2 ( 1350) ; 29 Car. 2, c. 6 (1677); 7 Anne, c. 5, § 3 (1708); 4 Geo. 2, c. 21 (1731); and 13 Geo. 3, c. 21 (1773). Later Mr. Chief Justice Taft, speaking for a unanimous Court, referred to this “very learned and useful opinion of Mr. Justice Gray” and observed “that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute . . . .” Weedin n. Chin Bow, 274 U. S., at 660. He referred to the cited English statutes and stated, “These statutes applied to the colonies before the War of Independence.” We thus hâve an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute. 2. The Constitution as originally adopted contained no définition of United States citizenship. However, it referred to citizenship in general terms and in varying con-texts: Art. I, § 2, cl. 2, qualifications for members of the House; Art. I, §3, cl. 3, qualifications for Senators; ROGERS v. BELLEI 829 815 Opinion of the Court Art. II, § 1, cl. 5, eligibility for the office of President; Art. III, § 2, cl. 1, citizenship as affecting judicial power of the United States. And, as has been noted, Art. I, § 8, cl. 4, vested Congress with the power to “establish an uniform Rule of Naturalization.” The his-torical reviews in the Afroyim opinions provide an intimation that the Constitution’s lack of definitional speci-ficity may well hâve been attributable in part to the desire to avoid entanglement in the then-existing contro-versy between concepts of state and national citizenship and with the difficult question of the status of Negro slaves. In any event, although one might hâve expected a définition of citizenship in constitutional terms, none was embraced in the original document or, indeed, in any of the amendments adopted prior to the War Between the States. 3. Apart from the passing reference to the “natural born Citizen” in the Constitution’s Art. II, § 1, cl. 5, we hâve, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory récognition and concomitant formai définition of the citizenship status of the native born: “[A] 11 persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . . .” This, of course, found immédiate expression in the Fourteenth Amendment, adopted in 1868, with expansion to “[a] 11 persons born or naturalized in the United States . . . .” As has been noted above, the amendment’s “undeniable purpose” was “to make citizenship of Negroes permanent and secure” and not subject to change by mere statute. Afroyim v. Rusk, 387 U. S., at 263. See H. Flack, Adoption of the Fourteenth Amendment 88-94 (1908). Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of exist- 415-649 0 - 72 - 58 830 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. ing rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wang Kim Ark, 169 U. S., at 688. Then follows a most significant sentence : “But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power con-ferred by the Constitution to establish an uniform rule of naturalization.” Thus, at long last, there emerged an express constitutional définition of citizenship. But it was one restricted to the combination of three factors, each and ail significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The définition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action. 4. The Court has recognized the existence of this power. It has observed, “No alien has the slightest right to naturalization unless ail statutory requirements are com-plied with . . . .” United States v. Ginsberg, 243 U. S. 472, 475 (1917). See United States v. Ness, 245 U. S. 319 (1917) ; Maney v. United States, 278 U. S. 17 (1928). And the Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent. As hereinabove noted, persons born abroad, even of United States citizen fathers who, however, acquired American citizenship after the effective date of the 1802 Act, were aliens. Congress ROGERS v. BELLEI 831 815 Opinion of the Court responded to that situation only by enacting the 1855 statute. Montana v. Kennedy, 366 U. S., at 311. But more than 50 years had expired during which, because of the withholding of that benefit by Congress, citizenship by such descent was not bestowed. United States n. Wong Kim Ark, 169 U. S., at 673-674. Then, too, the Court has recognized that until the 1934 Act the transmission of citizenship to one born abroad was restricted to the child of a qualifying American father, and withheld completely from the child of a United States citizen mother and an alien father. Montana v. Kennedy, supra. Further, it is conceded here both that Congress may withhold citizenship from persons like plaintiff Bellei6 and may prescribe a period of résidence in the United States as a condition precedent without constitutional question.7 Thus we hâve the presence of congressional power in this area, its exercise, and the Court’s spécifie récognition of that power and of its having been properly withheld or properly used in particular situations. VI This takes us, then, to the issue of the constitutionality of the exercise of that congressional power when it is used to impose the condition subséquent that confronted plaintiff Bellei. We conclude that its imposition is not unreasonable, arbitrary, or unlawful, and that it with-stands the présent constitutional challenge. 1. The Congress has an appropriate concern with prob-lems attendant on dual nationality. Savorgnan n. 6 At oral argument plaintiff’s counsel conceded that “Congress need not vest a person in his position with citizenship if it chooses not to do so.” Tr. of Oral Rearg. 27. Counsel for the amici sympa-thetic with the plaintiff’s cause made a like concession. Id., at 36. 7 Id., at 26. 832 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. United States, 338 U. S. 491, 500 (1950) ; N. Bar-Yaacov, Dual Nationality xi and 4 (1961). These problems are particularly acute when it is the father who is the child’s alien parent and the father chooses to hâve his family résidé in the country of his own nationality. The child is reared, at best, in an atmosphère of divided loyalty. We cannot say that a concern that the child’s own pri-mary allegiance is to the country of his birth and of his father’s allegiance is either misplaced or arbitrary. The duality also créâtes problems for the governments involved. Mr. Justice Brennan recognized this when, concurring in Kennedy n. Mendoza-Martinez, 372 U. S. 144, 187 (1963), a case concerning native-born citizens, he observed: “We hâve recognized the entanglements which may stem from dual allegiance . . . .” In a fa-mous case Mr. Justice Douglas wrote of the problem of dual citizenship. Kawakita v. United States, 343 U. S. 717, 723-736 (1952). He noted that “[o]ne who has a dual nationality will be subject to daims from both nations, daims which at times may be competing or conflicting,” id., at 733; that one with dual nationality cannot turn that status “into a fair-weather citizenship,” id., at 736; and that “[c]ircumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship,” ibid. The District Court in this very case conceded: “It is a legitimate concern of Congress that those who bear American citizenship and receive its benefits hâve some nexus to the United States.” 296 F. Supp., at 1252. 2. There are at least intimations in the decided cases that a dual national constitutionally may be required to make an élection. In Perkins v. Elg, 307 U. S. 325, 329 (1939), the Court observed that a native-born citizen ROGERS v. BELLEI 833 815 Opinion of the Court who had acquired dual nationality during minority through his parents’ foreign naturalization abroad did not lose his United States citizenship “provided that on at-taining majority he elects to retain that citizenship and to return to the United States to assume its duties.” In Kawakita n. United States, 343 U. S., at 734, the Court noted that a dual national “under certain circumstances” can be deprived of his American citizenship through an Act of Congress. In Mandoli v. Acheson, 344 U. S. 133, 138 (1952), the Court took pains to observe that there was no statute in existence imposing an élection upon that dual nationality litigant. These cases do not flatly say that a duty to elect may be constitutionally imposed. They surely indicate, however, that this is possible, and in Mandoli the holding was based on the very absence of a statute and not on any theory of unconstitutionality. And ail three of these cases concerned persons who wrere born here, that is, persons who possessed Fourteenth Amendment citizenship; they did not concern a person, such as plaintiff Bellei, whose claim to citizenship is wholly, and only, statutory. 3. The statutory development outlined in Part IV above, by itself and without reference to the underlying legislative history, committee reports, and other studies, reveals a careful considération by the Congress of the problems attendant upon dual nationality of a person born abroad. This was purposeful and not accidentai. It was législation structured with care and in the light of then apparent problems. 4. The solution to the dual nationality dilemma provided by the Congress by way of required résidence surely is not unreasonable. It may not be the best that could be devised, but here, too, we cannot say that it is irra-tional or arbitrary or unfair. Congress first has imposed 834 OCTOBER TERM, 1970 Opinion of the Court 401 U. S. a condition precedent in that the citizen parent must hâve been in the United States or its possessions not less than 10 years, at least five of which are after attain-ing âge 14. It then has imposed, as to the foreign-born child himself, the condition subséquent as to résidence here. The Court already had emphasized the importance of résidence in this country as the talisman of dedicated attachment, Weedin v. Chin Bow, 274 U. S., at 666-667, and said: “It is not too much to say, therefore, that Congress at that time [when Rev. Stat. § 1993 was under considération] attached more importance to actual résidence in the United States as indicating a basis for citizenship than it did to descent from those who had been born citizens of the colonies or of the States before the Constitution. As said by Mr. Fish, when Secretary of State, to Minister Wash-burn, June 28, 1873, in speaking of this very proviso, The heritable blood of citizenship was thus asso-ciated unmistakeably with résidence within the country which was thus recognized as essential to full citizenship.’ Foreign Relations of the United States, Pt. 1, 1873, p. 259.” 274 U. S., at 665-666. The same policy is reflected in the required period of résidence here for aliens seeking naturalization. 8 U. S. C. § 1427 (a). 5. We feel that it does not make good constitutional sense, or comport with logic, to say, on the one hand, that Congress may impose a condition precedent, with no constitutional complication, and yet be powerless to impose precisely the same condition subséquent. Any such distinction, of course, must rest, if it has any basis at ail, on the asserted “premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive,” Schneider ROGERS v. BELLEI 835 815 Opinion of the Court v. Rusk, 377 U. S., at 165, and on the announcement that Congress has no “power, express or implied, to take away an American citizen’s citizenship without his assent,” Afroyim n. Rusk, 387 U. S., at 257. But, as pointed out above, these were utterances bottomed upon Fourteenth Amendment citizenship and that Amendment’s direct reference to “persons born or naturalized in the United States.” We do not accept the notion that those utterances are now to be judicially extended to citizenship not based upon the Fourteenth Amendment and to make citizenship an absolute. That it is not an absolute is demonstrated by the fact that even Fourteenth Amendment citizenship by naturalization, when unlawfully procured, may be set aside. Afroyim n. Rusk, 387 U. S., at 267 n. 23. 6. A contrary holding would couvert what is congres-sional generosity into something unanticipated and ob-viously undesired by the Congress. Our National Législature indulged the foreign-born child with presumptive citizenship, subject to subséquent satisfaction of a reasonable résidence requirement, rather than to deny him citizenship outright, as concededly it had the power to do, and relegate the child, if he desired American citizenship, to the more arduous requirements of the usual naturalization process. The plaintiff here would force the Congress to choose between unconditional conforment of United States citizenship at birth and deferment of citizenship until a condition precedent is fulfilled. We are not convinced that the Constitution requires so rigid a choice. If it does, the congressional response seems obvious. 7. Neither are we persuaded that a condition subséquent in this area impresses one with “second-class citizenship.” That cliché is too handy and too easy, and, like most clichés, can be misleading. That the condition subséquent may be bénéficiai is apparent in the light 836 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. of the conceded fact that citizenship to this plaintiff was fully deniable. The proper emphasis is on what the statute permits him to gain from the possible starting point of noncitizenship, not on what he daims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place. His citizenship, while it lasts, although conditional, is not “second-class.” 8. The plaintiff is not stateless. His Italian citizenship remains. He has lived practically ail his life in Italy. He has never lived in this country; although he has visited here five times, the stipulated facts con-tain no indication that he ever will live here. He asserts no claim of ignorance or of mistake or even of hardship. He was warned several times of the provision of the statute and of his need to take up résidence in the United States prior to his 23d birthday. We hold that § 301 (b) has no constitutional infirmity in its application to plaintiff Bellei. The judgment of the District Court is reversed. Mr. Justice Black, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting. Less than four years ago this Court held that “the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.” Afroyim v. Rusk, 387 U. S. 253, 268 (1967). The holding was clear. Congress could not, until today, consistently with the Fourteenth Amendment enact a ROGERS v. BELLEI 837 815 Black, J., dissenting law stripping an American of his citizenship which he has never voluntarily renounced or given up. Now this Court, by a vote of five to four through a simple change in its composition, overrules that decision. The Court today holds that Congress can indeed rob a citizen of his citizenship just so long as five members of this Court can satisfy themselves that the congres-sional action was not “unreasonable, arbitrary,” ante, at 831; “misplaced or arbitrary,” ante, at 832; or “irrational or arbitrary or unfair,” ante, at 833. My first comment is that not one of these “tests” appears in the Constitution. Moreover, it seems a little strange to find such “tests” as these announced in an opinion which condemns the earlier decisions it overrules for their resort to clichés, which it describes as “too handy and too easy, and, like most clichés, can be misleading.” Ante, at 835. That description precisely fits those words and clauses which the majority uses, but which the Constitution does not. The Constitution, written for the âges, cannot rise and fail with this Court’s passing notions of what is “fair,” or “reasonable,” or “arbitrary.” The Fourteenth Amendment commands: “Ail persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they résidé.” Speaking of this very language, the Court held in Ajroyim that no American can be deprived of his citizenship without his assent. Today, the Court overrules that holding. This precious Fourteenth Amendment American citizenship should not be blown around by every passing political wind that changes the composition of this Court. I dissent. Bellei became an American citizen under the terms of 838 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. § 1993 of the Revised Statutes, as amended,1 and he has neither renounced his American citizenship nor volun-tarily assented to any governmental act terminating it. He has never given any indication of wanting to ex-patriate himself but, rather, has consistently maintained that he wants to keep his American citizenship. In my view, the decision in Ajroyim, therefore, requires the Court to hold here that Bellei has been unconstitutionally deprived by § 301 (b) of the Immigration and Nationality Act of 1952 2 of his right to be an American citizen. Since § 301 (b) does not take into account in any way whether the citizen intends or desires to relinquish his citizenship, that section is inevitably inconsistent with the constitutional principles declared in Ajroyim. The Court today holds that the Citizenship Clause of the Fourteenth Amendment has no application to Bellei. The Court first notes that Ajroyim was essentially a case construing the Citizenship Clause of the Fourteenth Amendment. Since the Citizenship Clause déclarés that : “Ail persons born or naturalized in the United States . . . are citizens of the United States . . . the Court reasons that the protections against involuntary expatriation declared in Ajroyim do not protect ail American citizens, but only those “born or naturalized in the United States.” Afroyim, the argument runs, was naturalized in this country so he was protected by the Citizenship Clause, but Bellei, since he acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, was neither born nor naturalized in the United States and, hence, falls outside the scope of the Fourteenth Amendment guarantees declared in Ajroyim. One could hardly call this a generous reading of the 1 Section 1993 of the Revised Statutes, as amended by the Act of May 24, 1934, 48 Stat. 797. 28 U. S. C. § 1401 (b). ROGERS v. BELLEI 839 815 Black, J., dissenting great purposes the Fourteenth Amendment was adopted to bring about. While conceding that Bellei is an American citizen, the majority States: “He simply is not a Fourteenth -Amendment-first-sentence citizen.” Therefore, the majority reasons, the congressional révocation of his citizenship is not barred by the Constitution. I cannot accept the Court’s conclusion that the Fourteenth Amendment protects the citizenship of some Americans and not others. Indeed, the concept of a hierarchy of citizenship, sug-gested by the majority opinion, was flatly rejected in Schneider v. Rusk, 377 U. S. 163 (1964) : “We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dig-nity and are coextensive.” Id., at 165. The Court there held that Congress could not deprive Mrs. Schneider of her citizenship, which she, like Mr. Bellei in the présent case, acquired derivatively through her citizen mother. Consequently, the majority in its rush to overrule Afroyim must also, in effect, overrule Schneider as well. Under the view adopted by the majority today, ail children born to Americans while abroad would be ex-cluded from the protections of the Citizenship Clause and would instead be relegated to the permanent status of second-class citizenship, subject to révocation at the will of Congress. The Court rejected such narrow, restrictive, and super-technical interprétations of the Citizenship Clause when it held in Afroyim that that Clause “was designed to, and does, protect every citizen of this Nation . . . .” 387 U. S., at 268. Afroyim's broad interprétation of the scope of the Citizenship Clause finds ample support in the language and history of the Fourteenth Amendment. Bellei was not “born ... in the United States,” but he was, constitu-tionally speaking, “naturalized in the United States.” Although those Americans who acquire their citizenship 840 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as natu-ralized citizens, the use of the word “naturalize” in this way has a considérable constitutional history. Congress is empowered by the Constitution to “establish an uni-form Rule of Naturalization,” Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. The first congressional exercise of this power, entitled “An Act to establish an uniform Rule of Naturalization,” was passed in 1790 at the Second Session of the First Congress. It provided in part: “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers hâve never been résident in the United States.” 1 Stat. 103, 104. This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a “Rule of Naturalization” shows, I think, that the First Congress conceived of this and most likely ail other purely statutory grants of citizenship as forms or varieties of naturalization. However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U. S. 649 (1898): “The Fourteenth Amendment of the Constitution . . . contemplâtes two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere ROGERS v. BELLEI 841 815 Black, J., dissenting fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, be-comes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declar-ing certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.” 169 U. S., at 702-703. The Court in Wong Kim Ark thus stated a broad and comprehensive définition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning ail those modes of acquiring American citizenship other than birth in this country. Ail means of obtaining American citizenship which are dépendent upon a congressional enactment are forms of naturalization. This inclusive définition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus in Minor v. Happersett, 21 Wall. 162, 167 (1875), the Court said: “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born or they may be created by naturalization.” And in Elk v. Wilkins, 112 U. S. 94 (1884), the Court took the position that the Fourteenth Amendment “contemplâtes two sources of citizenship, and two sources only: birth and naturalization. . . . Per 842 OCTOBER TERM, 1970 Black, J., dissenting 401 U. S. sons not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either in-dividually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.” 112 U. S., at 101-102. Moreover, this concept of naturalization is the only one permitted by this Court’s consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive définition of American citizenship. In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was “to establish a clear and comprehensive définition of citizenship which should déclaré what should constitute citizenship of the United States, and also citizenship of a State.” Slaughter-House Cases, 16 Wall. 36, 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause “put beyond doubt and cavil in the original law, who were citizens of the United States.” H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim both majority and dissenting Justices appear to hâve agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach ail citizens. The opinion of the Court in Afroyim described the Citizenship Clause as “calculated completely to control the status of citizenship.” 387 U. S., at 262. And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a “déclaration of the classes of individuals to whom citizenship initially attaches.” Id., at 292. The majority opinion appears at times to rely on the argument that Bellei, while he concededly might ROGERS v. BELLEI 843 815 Black, J., dissenting hâve been a naturalized citizen, was not naturalized “in the United States.” This interprétation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a compréhensive définition of American citizenship, for the ma-jority’s view would exclude from the protection of that Clause ail those who acquired American citizenship while abroad. I cannot accept the narrow and extraordinarily technical reading of the Fourteenth Amendment employed by the Court today. If, for example, Congress should décidé to vest the authority to naturalize aliens in American embassy officiais abroad rather than having the ceremony performed in this country, I hâve no doubt that those so naturalized would be just as fully protected by the Fourteenth Amendment as are those who go through our présent naturalization procedures. Rather than the technical reading adopted by the ma-jority, it is my view that the word “in” as it appears in the phrase “in the United States” was surely meant to be understood in two somewhat different senses : one can be-come a citizen of this country by being born within it or by being naturalized into it. This interprétation is sup-ported by the legislative history of the Citizenship Clause. That clause was added in the Senate rather late in the debates on the Fourteenth Amendment, and as originally introduced its reference was to ail those “born in the United States or naturalized by the laws thereof.” Cong. Globe, 39th Cong., Ist Sess., 2768. (Emphasis added.) The final version of the Citizenship Clause was undoubtedly intended to hâve this same scope. See Flack, supra, at 88-89. The majority takes the position that Bellei, although admittedly a citizen of this country, was not entitled to the protections of the Citizenship Clause. I would not départ from the holding in Afroyim that every American 844 OCTOBER TERM, 1970 Black, J,, dissenting 401 U. S. citizen has Fourteenth Amendment citizenship. Bellei, as a naturalized American, is entitled to ail the rights and privilèges of American citizenship, including the right to keep his citizenship until he voluntarily re-nounces or relinquishes it. The Court today puts aside the Fourteenth Amendment as a standard by which to measure congressional action with respect to citizenship, and substitutes in its place the majority’s own vague notions of “fairness.” The majority takes a new step with the recurring theme that the test of constitutionality is the Court’s own view of what is “fair, reasonable, and right.” Despite the concession that Bellei was admittedly an American citizen, and despite the holding in Ajroyim that the Fourteenth Amendment has put citizenship, once conferred, beyond the power of Congress to revoke, the majority today upholds the révocation of Bellei’s citizenship on the ground that the congressional action was not “irra-tional or arbitrary or unfair.” The majority applies the “shock-the-conscience” test to uphold, rather than strike, a fédéral statute. It is a dangerous concept of constitutional law that allows the majority to conclude that, because it cannot say the statute is “irrational or arbitrary or unfair,” the statute must be constitutional. Of course the Court’s construction of the Constitution is not a “strict” one. On the contrary, it proceeds on the premise that a majority of this Court can change the Constitution day by day, month by month, and year by year, according to its shifting notions of what is fair, reasonable, and right. There was little need for the founders to draft a written constitution if this Court can say it is only binding when a majority finds it fair, reasonable, and right to make it so. That is the loosest construction that could be employed. It is true that England has moved along very well in the world without a written constitution. But with complété familiarity ROGERS v. BELLEI 845 815 Brennan, J., dissenting with the English expérience, our ancestors determined to draft a written constitution which the members of this Court are sworn to obey. While I remain on the Court I shall continue to oppose the power of judges, appointed by changing administrations, to change the Constitution from time to time according to their notions of what is “fair” and “reasonable.” I would décidé this case not by my views of what is “arbitrary,” or what is “fair,” but rather by what the Constitution commands. I dissent. Mr. Justice Brennan, with whom Mr. Justice Douglas joins, dissenting. Since the Court this Term has already downgraded citizens receiving public welfare, Wyman v. James, 400 U. S. 309 (1971), and citizens having the misfortune to be illegitimate, Labine n. Vincent, ante, p. 532, I suppose today’s decision downgrading citizens born outside the United States should hâve been expected. Once again, as in James and Labine, the Court’s opinion makes évident that its holding is contrary to earlier decisions. Concededly, petitioner was a citizen at birth, not by constitutional right, but only through operation of a fédéral statute. In the light of the complété lack of rational basis for distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas, the conclusion is compelled that the reference in the Fourteenth Amendment to persons “born or naturalized in the United States” includes those naturalized through operation of an Act of Congress, wherever they may be at the time. Congress was therefore powerless to strip Bellei of his citizenship; he could lose it only if he voluntarily renounced or relin-quished it. Ajroyim n. Rusk, 387 U. S. 253 (1967). I dissent. 415-649 0 - 72 - 59 846 OCTOBER TERM, 1970 Per Curiam 401 U. S. JOHNSON v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 5247. Argued March 24, 1971—Decided April 5, 1971 138 U. S. App. D. C. 174, 426 F. 2d 651, certiorari dismissed as improvidently granted. William J. Lippman, by appointment of the Court, 400 U. S. 940, argued the cause and filed briefs for petitioner. Samuel Huntington argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Roger A. Pauley. Per Curiam. The writ of certiorari is dismissed as improvidently granted. The Chief Justice took no part in the considération or decision of this case. Mr. Justice Stewart, with whom Mr. Justice Douglas joins, dissenting. In the petitioner’s trial on a charge of râpe, the District Judge instructed the jury that it could return a verdict of guilty with the death penalty. Yet that verdict was constitutionally impermissible in light of this Court’s decision in United States n. Jackson, 390 U. S. 570. See Bailey v. United States, 132 U. S. App. D. C. 82, 86 and n. 3, 405 F. 2d 1352, 1356 and n. 3. I think the extreme préjudice arising from this erroneous instruction requires reversai of the judgment of conviction and a remand of this case for a new trial. Cf. Price v. Georgia, 398 U. S. 323, 331-332. KITCHENS v. SMITH 847 Per Curiam KITCHENS v. SMITH, WARDEN ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 6131. Decided April 5, 1971 Petitioner challenges his 1944 robbery conviction, when he was not represented by counsel, on the basis of Gideon v. Wainwright, 372 U. S. 335 (1963). In his habeas corpus pétition he stated that he was unable to obtain counsel “because of his impoverished condition,” and at the hearing he said, “I didn’t hâve any money and I didn’t hâve a lawyer.” Respondent made no effort to show that petitioner was not indigent at the time of his conviction. The Georgia courts denied his pétition. Held: On this record petitioner proved he was without counsel due to indigency at the time of his conviction, and accordingly he is entitled to relief as Gideon is fully rétroactive. Certiorari granted; 226 Ga. 667, 177 S. E. 2d 87, reversed and remanded. Per Curiam. Petitioner pleaded guilty to robbery in a Georgia state court in 1944. He was not represented by counsel at any time. While serving his sentence, petitioner escaped and did not return to Georgia until 1969, when he was returned to finish the remainder of his sentence. He then brought this habeas corpus action in county court, alleging that his conviction was void under Gideon n. Wainwright, 372 U. S. 335 (1963). The county court denied relief because Gideon was “recent law and under the law at the time of his sentence, the sentence met the requirements of the law at that time.” This was error since as we hâve often noted, Gideon is fully rétroactive. See, e. g., Linkletter v. Walker, 381 U. S. 618, 639 (1965) ; Desist n. United States, 394 U. S. 244, 250 n. 15 (1969) ; McConnell v. Rhay, 393 U. S. 2, 3 (1968); Stovall v. Denno, 388 U. S. 293, 297-298 (1967). 848 OCTOBER TERM, 1970 Per Curiam 401 U. S. On appeal, the Georgia Suprême Court affirmed the déniai of habeas corpus on different grounds, saying that petitioner did not testify at the habeas corpus hearing that he “wanted a lawyer, asked for one, or made any effort to get one” or that “because of his poverty, or for any other reason, he was unable to hire a lawyer.” 226 Ga. 667, 177 S. E. 2d 87-88 (1970). As this Court has said, however, “[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not dépend on a request.” Carnley v. Cochran, 369 U. S. 506, 513 (1962). This applies to guilty pleas as well as to trials. Uveges v. Pennsylvania, 335 U. S. 437, 441 (1948). Of course, to establish his right to appointed counsel in 1944, petitioner had the burden of proving his inability at that time to hire an attorney. His pétition for habeas corpus specifically averred that he was unable to obtain counsel “because of his impoverished condition” at that time. The respondent denied this allégation and thus put the matter in issue. At the hearing, petitioner testified, “I was a lot younger and I didn’t hâve any money and I didn’t hâve a lawyer . . . .” (Emphasis added.) The State made no effort whatever to contradict peti-tioner’s testimony that he was indigent; no part of its case went to the issue of indigency. In this light, the Georgia Suprême Court’s finding that petitioner “did not testify . . . that because of his poverty, or for any other reason, he was unable to hire a lawyer” is explicable only under the most rigid rules of testimonial construction. Though petitioner did not precisely testify that his failure to obtain a lawyer was a resuit of his indigency, this was the undeniable implication of his testimony, especially in view of the habeas corpus pétition’s allégation that petitioner was unable to hire an attorney “because of” his indigency. The hearing below, as the transcript shows, was conducted informally. Petitioner had KITCHENS v. SMITH 849 847 Per Curiam no lawyer, and introduced no evidence other than his own testimony. He testified discursively ; no objections were made by the State, nor did it cross-examine petitioner on the issue of indigency. It is our view that on this record petitioner proved he was without counsel due to indigency at the time of his conviction. The pétition for certiorari is granted, the judgment of the Georgia Suprême Court is reversed and the case remanded for further proceedings not inconsist-ent with this opinion. Reporter’s Note The next page is purposely numbered 901. The numbers between 849 and 901 were intentionally omitted, in order to make it possible to, publish the orders in the current preliminary prints of the United States Reports with permanent page numbers, thus making the official citations immediately available. ORDERS FROM FEBRUARY 19 THROUGH APRIL 5, 1971 February 19, 1971 Miscellaneous Order No.-------. Fairchild v. United States. C. A. lOth Cir. Renewed application for stay presented to Mr. Justice White, and by him referred to the Court, denied. Reported below: 435 F. 2d 972. February 22, 1971 Affirmed on Appeal No. 921. Richardson v. Kennedy, Secretary of the Treasury. Affirmed on appeal from D. C. W. D. Pa. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and the case set for oral argument. Reported below: 313 F. Supp. 1282. Appeals Dismissed No. 734. Hegarty v. California. Appeal from Ct. App. Cal., lst App. Dist., dismissed for want of substantial fédéral question. No. 915. Carter, Administratrix v. Hartenstein, dba Hartenstein Elevator Co., et al. Appeal from Sup. Ct. Ark. dismissed for want of substantial fédéral question. Reported below: 248 Ark. 1172, 455 S. W. 2d 918. No. 1002. Barnard et al. v. California. Appeal from App. Dept., Super. Ct. Cal., County of Los Angeles, dismissed for want of substantial fédéral question. 901 902 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 1003. Tape Industries Association of America et al. v. Younger, District Attorney of Los Angeles County, et al. Appeal from D. C. C. D. Cal. dismissed for want of jurisdiction. Reported below: 316 F. Supp. 340. No. 6229. Anderson v. New York et al. Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Vacated and Remanded on Appeal No. 986. Baker et al., Trustées of Property of Penn Central Transportation Co. v. Pennsylvania et al. Appeal from D. C. W. D. Pa. Judgment vacated and case remanded with instructions to vacate the inter-locutory injunction appealed from because the injunction, together with the underlying cause, has become moot. No. 6047. Christopher et al. v. Mitchell, Attorney General, et al. Appeal from D. C. D. C. Judgment vacated and case remanded for further considération in light of the judgment of this Court in No. 43, Orig., Oregon v. Mitchell, No. 44, Orig., Texas v. Mitchell, No. 46, Orig., United States v. Arizona, and No. 47, Orig., United States v. Idaho [400 U. S. 112]. Reported below: 318 F. Supp. 994. Certiorari Granted—Vacated and Remanded No. 6080. Ray v. Attorney General of the United States et al. C. A. 9th Cir. Motion for leave to pro-ceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the United States District Court for the Central District of California with directions to dismiss the application for habeas corpus as moot. ORDERS 903 401 U. S. February 22, 1971 Miscellaneous Orders No.-------. Stanley v. Ohio. Sup. Ct. Ohio. Application for bail denied. No. -------. Cummings v. City of Toledo. Sup. Ct. Ohio. Application for stay denied. No.-------. McKenzie v. Texas. Ct. Crim. App. Tex. Motion of State of Texas to terminate petitioner’s stay of execution denied. The papers filed on behalf of petitioner will be treated as a pétition for writ of certiorari and placed on docket of this Court as No. 6623. Reported below: 450 S. W. 2d 341. No. 31, Orig. Utah v. United States. Motion of the State of Utah for additional time to respond to exceptions of the United States to Report of Spécial Master granted. Mr. Justice Marshall took no part in the considération or decision of this motion. [For previous actions herein, see, e. g., 400 U. S. 962.] No. 44, Orig. Texas v. Mitchell, Attorney General, 400 U. S. 112. Motion of Dawn P. German for leave to intervene and to file pétition for rehearing denied. No. 507. California Department of Human Resources Development et al. v. Java et al. Appeal from D. C. N. D. Cal. [Probable jurisdiction noted, 400 U. S. 877.] Motion of Stephen P. Berzon for leave to participate in oral argument pro hac vice granted. No. 931. Engelman, Director, Division of Public Welfare, Department of Institutions and Agencies, et al. v. Amos et al. Appeal from D. C. N. J. The Solicitor General is invited to file a brief expressing the views of the United States. Mr. Justice Douglas took no part in the considération or decision of this matter. 904 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 1341. Jackson et al. v. Ogilvie, Governor of Illinois, et al. Appeal from D. C. N. D. 111. Application for emergency relief presented to Mr. Justice Marshall, and by him referred to the Court, denied. Reported below: 325 F. Supp. 864. Mr. Justice Douglas, concurring. The Court properly stays its hand in this élection case that cornes to us with the customary plea for emergency action. It is not entirely clear that the three-judge court was properly convened. But assuming it was, the case is peculiarly appropriate for application of the abstention doctrine which we recently applied in Reetz v. Bozanich, 397 U. S. 82. The Illinois statutes involved here hâve not been con-strued as respects the issues now tendered. Whether the fédéral question would be avoided by a state construction of the Illinois statutes is not known. There is, however, a built-in provision for judicial review in the Illinois Circuit Court of a decision of the Election Board. 111. Rev. Stat., c. 46, § 10-10.1 (1967). While these issues are by our fédéral standard “justiciable,” fédéral courts are usually less able than state courts to work their way through a maze of state électoral laws. If fédéral courts take the laboring oar in these so-called “emergency” cases involving local électoral laws, they must make quick decisions on local-law issues that are often tangled with matters of local construction and administration.* *One of the underlying local-law issues involves the question as to what people are qualified to sign nominating pétitions for independent candidates such as appellants. There is one view that the signatures must be of persons who did not vote in the preceding primary élection for nominees of candidates for that office, and there is the op-posing view that any registered voter may sign nominating pétitions for independent candidates. ORDERS 905 401 U. S. February 22, 1971 The suit in the fédéral court was filed December 1970, the three-judge court rendering its decision on January 28, 1971. 325 F. Supp. 864. It was not until February 1, 1971, that appellant Jackson filed his nomination papers with the Board. On February 8, 1971, two registered voters filed written objections to those nomination papers. The Board gave notice of a hearing to be held February 11, 1971, on these objections. The Board on February 18, 1971, held that the nomination papers of appellant Jackson did not satisfy requirements of the Illinois élection code. Hence it was apparent that the administrative decision of the Board came after the decision of the fédéral three-judge court. What appellants ask us in substance to do is to sit in direct review of the Election Board. The reason, of course, is that the primary will be held February 23, 1971, and the State will begin distributing the ballots which contain the names of the winners of the primary and the names of the independent candidates on March 8, 1971. Fédéral courts cannot act responsibly in those situations. No. 880. Kelley v. United States. C. A. 9th Cir. Application for stay denied. Reported below: 426 F. 2d 296. No. 1344. Fitzpatrick et al. v. Board of Election COMMISSIONERS OF THE ClTY OF CHICAGO ET AL. Appeal from D. C. N. D. 111. Motion to expedite denied. No. 6007. Halley v. United States et al.; No. 6134. Hunt v. Eyman, Warden, et al.; No. 6165. Forbes v. Wainwright, Corrections Director ; No. 6176. Gardner v. California; No. 6186. Pernell v. Neil, Warden, et al.; and No. 6196. Szijarto v. California. Motions for leave to file pétitions for writs of habeas corpus denied. 906 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 6106. Tarver v. Smith, Secretary of Department of Social and Health Services of Washington. Sup. Ct. Wash. The Solicitor General is invited to file a brief expressing the views of the United States. Reported below: 78 Wash. 2d 152, 470 P. 2d 172. No. 6152. Williams v. Gray, U. S. District Judge; No. 6277. Carroll v. Fa y, Warden; and No. 6300. Fennell et al. v. Mathes, Chief Judge, U. S. Court of Appeals, et al. Motions for leave to file pétitions for writs of mandamus denied. Probable Jurisdiction Noted or Postponed No. 582. Lynch, Attorney General of California, et al. v. Gilmore et al. Appeal from D. C. N. D. Cal. Motion of appellees for leave to proceed in forma pauperis granted. Further considération of question of jurisdiction in this case postponed to hearing of case on the merits. Reported below: 319 F. Supp. 105. No. 903. Port of Portland et al. v. United States et al. Appeal from D. C. Ore. Probable jurisdiction noted. No. 6060. Fuentes et al. v. Faircloth, Attorney General of Florida, et al. Appeal from D. C. S. D. Fia. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted. Reported below: 317 F. Supp. 954. No. 6061. Mayer v. City of Chicago. Appeal from Sup. Ct. 111. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted. No. 5850. Townsend et al. v. Swank, Director, Department of Public Aid of Illinois, et al. ; and No. 6000. Alexander et al. v. Swank, Director, Department of Public Aid of Illinois, et al. Appeals from D. C. N. D. 111. Motions for leave to proceed in forma pauperis granted. Probable jurisdiction noted. ORDERS 907 401 U. S. February 22, 1971 Cases Consolidated and a total of one hour allotted for oral argument. Reported below: 314 F. Supp. 1082. Certiorari Granted No. 1009. United States v. Unicorn Enterprises, Inc., et al. C. A. 2d Cir. Certiorari granted. No. 910. Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, et al.; and No. 961. National Labor Relations Board v. Pittsburgh Plate Glass Co., Chemical Division, et al. C. A. 6th Cir. Motion of American Fédération of Labor & Congress of Industrial Organizations et al. for leave to file a brief as amici curiae in No. 961 granted. Certiorari granted. Cases Consolidated and a total of one hour allotted for oral argument. Reported below: 427 F. 2d 936. No. 939. Sierra Club v. Morton, Secretary of the Interior, et al. C. A. 9th Cir. Motion of United States Ski Assn. et al. for leave to file a brief as amici curiae granted. Certiorari granted. Reported below: 433 F. 2d 24. No. 957. United States et al. v. Pullman Co. ; and No. 6018. Love v. Pullman Co. C. A. lOth Cir. Motion of petitioner in No. 6018 for leave to proceed in forma pauperis granted. Certiorari granted. Cases Consolidated and a total of one hour allotted for oral argument. Reported below: 430 F. 2d 49. No. 958. Fédéral Power Commission v. Florida Power & Light Co. C. A. 5th Cir. Motions of Gaines-ville Utilities Department et al. and American Public Power Assn. for leave to file briefs as amici curiae granted. Certiorari granted. Mr. Justice Blackmun took no part in the considération or decision of these motions and pétition. Reported below: 430 F. 2d 1377. 908 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 1082. United States v. Mississippi Chemical Corp. et al. C. A. 5th Cir. Certiorari granted. Mr. Justice Blackmun took no part in the considération or decision of this pétition. Reported below: 431 F. 2d 1320. No. 5798. Argersinger v. Hamlin, Sheriff. Sup. Ct. Fia. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Reported below: 236 So. 2d 442. Certiorari Denied. (See also No. 6229, supra.) No. 901. Sherman et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 430 F. 2d 1402. No. 904. McPherson v. Walker et al. C. A. 8th Cir. Certiorari denied. No. 905. Anchor Coupling Co., Inc. v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 427 F. 2d 429. No. 907. Conolon Corp. v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 324. No. 908. Stelly v. Bauer Dredging Co., Inc. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 1251. No. 909. Serman v. United States. C. A. 6th Cir. Certiorari denied. No. 911. Salanitro v. United States. C. A. lOth Cir. Certiorari denied. Reported below: 432 F. 2d 59. No. 914. Tollefsen et ux. v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Reported below: 431 F. 2d 511. ORDERS 909 401 U. S. February 22, 1971 No. 912. Port of New York Authority et al. v. Fédéral Maritime Commission et al. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 663 and 670. No. 916. Kapatos v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 432 F. 2d 110. No. 919. Beaudry v. Vargo. Sup. Ct. Wis. Certiorari denied. Reported below: 46 Wis. 2d 230, 175 N. W. 2d 473. No. 924. Mitchell et ux. v. Commissioner of In-ternal Revenue. C. A. 6th Cir. Certiorari denied. Reported below: 428 F. 2d 259. No. 926. Sterner Lighting, Inc., et al. v. Allied Electrical Supply, Inc., et al. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 539. No. 927. Pyramid Lake Paiute Tribe v. United States et al. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 763. No. 933. El-Ge Potato Chip Co., Inc. v. National Labor Relations Board. C. A. 3d Cir. Certiorari denied. Reported below: 427 F. 2d 903. No. 937. Charles v. Blount, Postmaster General. C. A. 7th Cir. Certiorari denied. Reported below: 430 F. 2d 665. No. 938. Central Machine & Tool Co., Inc. v. National Labor Relations Board. C. A. lOth Cir. Certiorari denied. Reported below: 429 F. 2d 1127. No. 940. Breakefield v. District of Columbia. C. A. D. C. Cir. Certiorari denied. Reported below: --- U. S. App. D. C.----, 442 F. 2d 1227. No. 941. Rivezzo v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 431 F. 2d 319. 415-649 0 - 72 - 60 910 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 944. Armco Steel Corp. v. Schutte, Adminis-tratrix, et al. C. A. 3d Cir. Certiorari denied. Reported below: 431 F. 2d 22. No. 946. Hogg v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 428 F. 2d 274. No. 948. Citizens Casualty Company of New York v. Stewart, Superintendent of Insurance of New York. Ct. App. N. Y. Certiorari denied. Reported below: 27 N. Y. 2d 685, 262 N. E. 2d 215. No. 949. Rubino v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 431 F. 2d 284. No. 951. Texas & Pacific Railway Co. v. Allen et al. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 982. No. 954. Mitchell v. United States. C. A. lst Cir. Certiorari denied. Reported below: 432 F. 2d 354. No. 955. Zabel, Executrix, et al. v. Tabb et al. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 199. No. 956. Bukacek v. Pell City Farms, Inc., et al. Sup. Ct. Ala. Certiorari denied. Reported below: 286 Ala. 141, 237 So. 2d 851. No. 959. Wheatley, Commissioner of Finance of the Virgin Islands v. Chicago Bridge & Iron Co., Ltd. C. A. 3d Cir. Certiorari denied. Reported below: 430 F. 2d 973. No. 960. Hackin et ux., dba H. S. Hackin Plumb-ing & Heating Co., et al. v. Pioneer Plumbing Sup-ply Co. C. A. 9th Cir. Certiorari denied. No. 964. Van Sickle v. Nevada. Sup. Ct. Nev. Certiorari denied. Reported below: 86 Nev. 531, 471 P. 2d 224. ORDERS 911 401 U. S. February 22, 1971 No. 965. Cardwell, Warden v. Woodards. C. A. 6th Cir. Certiorari denied. Reported below: 430 F. 2d 978. No. 967. Thomas et al. v. Honeybrook Mines, Inc. C. A. 3d Cir. Certiorari denied. Reported below: 428 F. 2d 981. No. 968. Bukowski v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 1094. No. 969. O’Connor v. United States. C. A. Ist Cir. Certiorari denied. Reported below: 433 F. 2d 752. No. 970. Frey v. United States; and No. 974. McKuin v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 434 F. 2d 391. No. 972. Smith v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1109. No. 975. COLSON ET AL. V. MORTON, SECRETARY OF the Interior. C. A. 5th Cir. Certiorari denied. Reported below: 428 F. 2d 1046. No. 978. Ring v. Mayor of Rutherford et al. Super. Ct. N. J. Certiorari denied. Reported below: 110 N. J. Super. 441, 266 A. 2d 129. No. 980. Pier 67, Inc., aka Edgewater Inn v. King County et al. Sup. Ct. Wash. Certiorari denied. Reported below: 78 Wash. 2d 48, 469 P. 2d 902. No. 981. Industrial Union Department, AFL-CIO, et al. v. Black Hawk Corp. et al. C. A. 4th Cir. Certiorari denied. Reported below: 431 F. 2d 900. No. 983. Hudson Transit Lines, Inc. v. National Labor Relations Board. C. A. 3d Cir. Certiorari denied. Reported below: 429 F. 2d 1223. 912 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 985. Bland v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 96. No. 987. Nellis v. Central Distributors, Inc. C. A. 5th Cir. Certiorari denied. Reported below: 428 F. 2d 369. No. 990. First National Bank of Chicago, Guardian, ET AL. V. FlDELITY & CASUALTY COMPANY OF NEW York. C. A. 7th Cir. Certiorari denied. Reported below: 428 F. 2d 499. No. 992. ISI Corp. et al. v. Myers, Executrix, et al.; and No. 998. Security Pacific National Bank, for-merly Pacific National Bank of San Francisco v. Myers, Executrix, et al. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 769. No. 995. American Art Industries, Inc. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. Reported below: See 415 F. 2d 1223. No. 997. Stone v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 1286. No. 999. Brookins v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 423 F. 2d 463 and 434 F. 2d 41. No. 1001. National Screen Service Corp. v. Poster Exchange, Inc. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 334. No. 1004. Hansen v. Haagensen. Sup. Ct. lowa. Certiorari denied. Reported below: 178 N. W. 2d 325. No. 1005. Blalock et al. v. North Carolina. Ct. App. N. C. Certiorari denied. Reported below: 9 N. C. App. 94, 175 S. E. 2d 716. ORDERS 913 401 U. S. February 22, 1971 No. 1006. Wilson et al. v. Commercial Securities Co., Inc., et al. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 1305. No. 1007. Cohen v. Central National Bank of Jacksonville. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 1232. No. 1008. Hamilton v. United States et al. C. A. 2d Cir. Certiorari denied. Reported below: 429 F. 2d 427. No. 1011. Alvarez et ux. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 1261. No. 1012. Fort Howard Paper Co. v. Scott Paper Co. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1198. No. 1017. Petuskey et al. v. Rampton, Governor of Utah, et al. C. A. lOth Cir. Certiorari denied. Reported below: 431 F. 2d 378. No. 1021. Toliver v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 433 F. 2d 867. No. 5167. Lewis v. Licavoli. App. Dept., Super Ct. Cal., County of San Francisco. Certiorari denied. Reported below: See 3 Cal. App. 3d 100 and 707, 83 Cal. Rptr. 81. No. 5600. Lindsey v. Craven, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 427 F. 2d 153. No. 5665. Mance v. Nelson, Warden. C. A. 9th Cir. Certiorari denied. No. 5716. Romano v. New York. Ct. App. N. Y. Certiorari denied. Reported below: 26 N. Y. 2d 894 and 27 N. Y. 2d 734; 258 N. E. 2d 218 and 262 N. E. 2d 680. 914 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 5707. Spigner v. California. Sup. Ct. Cal. Certiorari denied. No. 5742. Hernley et al. v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: See 216 Pa. Super. 177, 263 A. 2d 904. No. 5794. Megliorino v. Nelson, Warden. C. A. 9th Cir. Certiorari denied. No. 5808. Cadogan v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 428 F. 2d 165. No. 5817. Huff v. Illinois. Sup. Ct. 111. Certiorari denied. Reported below: 45 111. 2d 186, 258 N. E. 2d 356. No. 5823. Douglas v. Louisiana et al. Sup. Ct. La. Certiorari denied. Reported below: 256 La. 186, 235 So. 2d 563. No. 5838. Garcia v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 7 Cal. App. 3d 314, 86 Cal. Rptr. 628. No. 5844. Musil v. Pâte, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 427 F. 2d 930. No. 5866. Carter et al. v. California et al. Sup. Ct. Cal. Certiorari denied. No. 5868. Joseph v. Louisiana. Sup. Ct. La. Certiorari denied. Reported below: 256 La. 627, 237 So. 2d 663. No. 5872. Harrell v. California. Sup. Ct. Cal. Certiorari denied. Reported below: 2 Cal. 3d 675, 470 P. 2d 640. No. 5873. Vaughn et al. v. North Carolina. C. A. 4th Cir. Certiorari denied. ORDERS 915 401 U. S. February 22, 1971 No. 5877. Bonner v. Pâte, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 430 F. 2d 639. No. 5881. French v. Corrigan et al. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1211. No. 5888. Rutledge v. Sheriff of Ingham County. Ct. App. Mich. Certiorari denied. Reported below: 21 Mich. App. 726, 176 N. W. 2d 417. No. 6021. Brown v. Smith, Warden. C. A. 5th Cir. Certiorari denied. No. 6045. Masterson v. Illinois. Sup. Ct. 111. Certiorari denied. Reported below: 45 111. 2d 499, 259 N. E. 2d 794. No. 6050. Young v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 430 F. 2d 1176. No. 6052. Fanale v. Anderson et al. C. A. 2d Cir. Certiorari denied. Reported below: 427 F. 2d 172. No. 6058. O’Shaughnessy v. Bissell. C. A. 9th Cir. Certiorari denied. Reported below: 430 F. 2d 1015. No. 6062. Hadley v. Smith, Warden. C. A. 5th Cir. Certiorari denied. No. 6068. Wimberley v. Craven, Warden, et al. C. A. 9th Cir. Certiorari denied. No. 6074. Curtis v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 430 F. 2d 1159. No. 6076. Rojas v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 429 F. 2d 971. No. 6081. Washington et al. v. Coiner, Warden. C. A. 4th Cir. Certiorari denied. No. 6084. Ginter v. Wilson, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 416 F. 2d 1248. 916 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 6085. Johnson v. Twomey, Warden. C. A. 7th Cir. Certiorari denied. No. 6088. Wilson v. United States. C. A. lOth Cir. Certiorari denied. Reported below: 430 F. 2d 1309. No. 6091. Fraser v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 876. No. 6096. Maranze v. Dayton School Board et al. Sup. Ct. Ohio. Certiorari denied. No. 6109. In re Spigner. Sup. Ct. Cal. Certiorari denied. No. 6115. Jenkins v. New Jersey. Super. Ct. N. J. Certiorari denied. No. 6118. Halley v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 1180. No. 6119. Gilhousen v. Nelson, Warden. Sup. Ct. Cal. Certiorari denied. No. 6120. Pulley v. Norvell, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 431 F. 2d 258. No. 6122. Caldrone v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 205 Kan. 828, 473 P. 2d 66. No. 6123. Frost v. United States. C. A. lst Cir. Certiorari denied. Reported below: 431 F. 2d 1249. No. 6125. Riddick v. Cox, Penitentiary Superin-tendent. C. A. 4th Cir. Certiorari denied. No. 6129. Gray v. United States Lines. C. A. 2d Cir. Certiorari denied. No. 6130. Inman v. United States District Court for the Northern District of California. C. A. 9th Cir. Certiorari denied. ORDERS 917 401 U. S. February 22, 1971 No. 6141. Ward v. California. Sup. Ct. Cal. Certiorari denied. No. 6142. Vaughn v. Mancusi, Warden. C. A. 2d Cir. Certiorari denied. No. 6143. Sailer v. Reichmann et al. C. A. 9th Cir. Certiorari denied. No. 6145. Braxton v. Maryland. Ct. Sp. App. Md. Certiorari denied. No. 6146. O’Neal v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 695. No. 6147. Arnold v. Coakley, District Attorney of Alameda County, et al. Ct. App. Cal., 3d App. Dist. Certiorari denied. No. 6148. Mahoney v. Arizona et al. Sup. Ct. Ariz. Certiorari denied. Reported below: 106 Ariz. 297, 475 P. 2d 479. No. 6149. Anderson v. Singletary, Judge. C. A. 4th Cir. Certiorari denied. No. 6150. Nelson v. Zelker, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 430 F. 2d 1055. No. 6151. Cordle lCUnited States. C. A. 6th Cir. Certiorari denied. No. 6153. Reda v. United States et al. C. A. 2d Cir. Certiorari denied. No. 6154. Lewis v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 417 F. 2d 644. No. 6155. Bryant v. Maryland. Ct. Sp. App. Md. Certiorari denied. No. 6156. Phillips v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 433 F. 2d 1364. 918 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 6157. Kimbro v. Russell, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 429 F. 2d 1319. No. 6159. Howard v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 1. No. 6160. Angle v. Laird, Secretary of Defense. C. A. lOth Cir. Certiorari denied. Reported below: 429 F. 2d 892. No. 6161. Fristoe v. United States. C. A. 8th Cir. Certiorari denied. No. 6162. Williams v. Craven, Warden. C. A. 9th Cir. Certiorari denied. No. 6167. Manning v. California. Sup. Ct. Cal. Certiorari denied. No. 6168. Vigil v. United States. C. A. lOth Cir. Certiorari denied. Reported below: 431 F. 2d 1037. No. 6169. Crespo v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied. No. 6170. Pacheco v. Casscles, Warden. C. A. 2d Cir. Certiorari denied. No. 6173. Joseph v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 428 F. 2d 1206. No. 6175. Spigner v. United States. C. A. 9th Cir. Certiorari denied. No. 6177. Curtis v. New York. App. Div., Sup. Ct. N. Y., lst Jud. Dept. Certiorari denied. No. 6178. Cantrell v. United States District Court for the Central District of California. C. A. 9th Cir. Certiorari denied. No. 6179. Se well v. An^ry, Correction al Super-intendent, et al. C. A. D. C. Cir. Certiorari denied. ORDERS 919 401 U. S. February 22, 1971 No. 6180. Machin v. Pinto et al. C. A. 2d Cir. Certiorari denied. No. 6181. Jones v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 6183. Williams v. California. Sup. Ct. Cal. Certiorari denied. Reported below: 2 Cal. 3d 894, 471 P. 2d 1008. No. 6187. Beasley v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 205 Kan. 253, 469 P. 2d 453. No. 6188. Casson v. United States. C. A. D. C. Cir. Certiorari denied. No. 6189. McPeak et al. v. Adjustment Corp. App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied. No. 6191. Bongiorno v. Moseley, Warden. C. A. lOth Cir. Certiorari denied. Reported below: 431 F. 2d 1175. No. 6193. Shipp v. Craven, Warden. C. A. 9th Cir. Certiorari denied. No. 6194. Pruitt v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 1104. No. 6198. Wallace v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 6201. Fuentes et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 405. No. 6203. Baldwin v. Yeager, Principal Keeper. C. A. 3d Cir. Certiorari denied. Reported below: 428 F. 2d 182. 920 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 6204. Ridgill v. Follette, Warden. C. A. 2d Cir. Certiorari denied. No. 6206. Postell v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 429 F. 2d 528. No. 6207. Auer v. Wayne State University. Sup. Ct. Mich. Certiorari denied. No. 6208. Sabella v. Follette, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 432 F. 2d 572. No. 6209. Edlin v. Richardson, Judge. Ct. App. Ky. Certiorari denied. No. 6211. Lassere v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 458 S. W. 2d 81. No. 6216. Ferree v. Brantley, Warden. Sup. Ct. 111. Certiorari denied. No. 6221. Arquilla v. United States. C. A. 4th Cir. Certiorari denied. No. 6226. DeBose v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 433 F. 2d 916. No. 6232. Tarrants v. Mississippi. Sup. Ct. Miss. Certiorari denied. Reported below: 236 So. 2d 360. No. 6233. Harris v. City of Houston. C. A. 5th Cir. Certiorari denied. No. 6235. Lawrence v. Russell, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 430 F. 2d 718. No. 6236. Bentley v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 431 F. 2d 250. No. 6237. Carr v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 141 U. S. App. D. C. 229, 437 F. 2d 662. ORDERS 921 401 U. S. February 22, 1971 No. 6250. Carrillo v. Wyoming. Sup. Ct. Wyo. Certiorari denied. Reported below: 474 P. 2d 123. No. 6251. Saunders v. Rundle, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 6253. Crawford v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. No. 6255. Arnold v. Smithwick. C. A. 5th Cir. Certiorari denied. No. 6256. Burris v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 430 F. 2d 399. No. 6257. Rembert v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 6258. Kelly v. United States. C. A. 9th Cir. Certiorari denied. No. 6262. Faustino v. Immigration and Naturalization Service. C. A. 2d Cir. Certiorari denied. Reported below: 432 F. 2d 429. No. 6265. Blue v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1191. No. 6266. Briddle v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 436 F. 2d 4. No. 6267. Radil v. Minnesota. Sup. Ct. Minn. Certiorari denied. Reported below: 288 Minn. 279, 179 N. W. 2d 602. No. 6268. Rosenstein v. United States. C. A. 2d Cir. Certiorari denied. Reported below : 434 F. 2d 640. No. 6269. De la Motte v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 289. 922 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 6274. Pepitone v. Prelsnik, Sheriff, et al. C. A. 9th Cir. Certiorari denied. No. 6275. McKinney v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 1019 and 434 F. 2d 831. No. 6276. Singal v. Blackwell, Warden, et al. C. A. 5th Cir. Certiorari denied. No. 6278. Riley v. Field, Men’s Colony Super-intendent. C. A. 9th Cir. Certiorari denied. Reported below: 430 F. 2d 1134. No. 6281. King v. United States. C. A. 6th Cir. Certiorari denied. No. 6288. Haywood v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1112. No. 6302. Montero et al. v. United States. C. A. 6th Cir. Certiorari denied. No. 6304. White v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied. No. 152. Patterson v. Humble Oïl & Refining Co. et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice Brennan are of the opinion that certiorari should be granted. Mr. Justice Harlan took no part in the considération or decision of this pétition. Reported below: 423 F. 2d 883. No. 448. Kyriaco et al. v. United States et al. C. A. 9th Cir. Certiorari denied without préjudice, however, to petitioners’ making their respective applications, if they so choose, to the District Court for such relief, if any, as may be appropriate in light of developments occurring since pétition for writ of certiorari was filed in this Court. Reported below: 425 F. 2d 1069. ORDERS 923 401 U. S. February 22, 1971 No. 722. Nelson et al. v. Iowa. Sup. Ct. lowa. Certiorari denied. Mr. Justice Douglas took no part in the considération or decision of this pétition. Reported below: 178 N. W. 2d 434. No. 947. Fontana Aviation, Inc. v. Beech Air-craft Corp. et al. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas took no part in the considération or decision of this pétition. Reported below: 432 F. 2d 1080. No. 989. Billy Baxter, Inc. v. Coca-Cola Co. et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas took no part in the considération or decision of this pétition. Reported below: 431 F. 2d 183. No. 906. Lang v. Tennessee. Ct. Crim. App. Tenn. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: ---Tenn. App. -----, 457 S. W. 2d 882. No. 913. Koen et al. v. Long et al. C. A. 8th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 428 F. 2d 876. No. 918. Russell v. Greenville Shipbuilding Corp. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 428 F. 2d 1168. No. 932. Baines v. City of Birmingham. Ct. Crim. App. Ala. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 46 Ala. App. 72, 238 So. 2d 352. No. 5611. Jackson v. Patterson. Sup. Ct. App. Va. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. 924 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 5800. Gilkey v. California. Ct. App. Cal., lst App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 6 Cal. App. 3d 183 and 7 Cal. App. 3d 557a; 85 Cal. Rptr. 642. No. 5805. Houp v. Nebraska et al. C. A. 8th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 427 F. 2d 254. No. 5831. Rucker v. California. Ct. App. Cal., lst App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 5835. Miller v. Pâte, Warden. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 429 F. 2d 1001. No. 6055. Jones v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 433 F. 2d 1292. No. 925. Evans v. United States; No. 930. Amabile v. United States; and No. 1032. Battaglia v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of these pétitions. Reported below: 432 F. 2d 1115. No. 1020. Teitelbaum v. United States; No. 1029. Roselli v. United States; and No. 1034. Jacobs v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of these pétitions. Reported below: 432 F. 2d 879. ORDERS 925 401 U. S. February 22, 1971 No. 1110. Roberts v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of this pétition. Reported below: 434 F. 2d 880. No. 6252. Parker v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of this pétition. Reported below: 433 F. 2d 15. No. 6254. Mills v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of this pétition. Reported below: 434 F. 2d 266. No. 988. Minnesota Mining & Manufacturing Co. v. Norton Co. et al. C. A. 6th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. Reported below: 426 F. 2d 1117. No. 1019. Ralph Printing & Lithographing Co. v. National Labor Relations Board. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. Reported below: 433 F. 2d 1058. No. 996. Sterling National Bank of Davie v. Camp, Comptroller of the Currency, et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Black took no part in the considération or decision of this pétition. Reported below: 431 F. 2d 514. No. 5856. Whitehead v. Virginia. Sup. Ct. App. Va. Certiorari denied. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Blackmun are of the opinion that certiorari should be granted. 415-649 0 - 72 - 61 926 OCTOBER TERM, 1970 February 22, 1971 401 U. S. No. 1016. Jones v. United States. C. A. 9th Cir. Motion to dispense with printing pétition granted. Certiorari denied. Reported below: 431 F. 2d 619. No. 5942. Shirley v. Louisiana. Sup. Ct. La. Certiorari denied. Mr. Justice Douglas and Mr. Justice Brennan are of the opinion that certiorari should be granted. Reported below: 256 La. 665, 237 So. 2d 676. Rehearing Denied No. 1101. Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department et al., 400 U. S. 968; No. 5418. Ethridge v. United States, 400 U. S. 993; No. 5437. Ethridge v. United States, 400 U. S. 1000; No. 5846. Lewis v. Robinson, U. S. District Judge, et al., 400 U. S. 959 ; No. 5885. Briscoe v. United States, 400 U. S. 966; No. 5947. Fletcher v. Brierley, Correctional Superintendent, 400 U. S. 997; No. 5972. Hahn v. Smith, Warden, 400 U. S. 1010; and No. 6043. Rogers v. California, 400 U. S. 1018. Pétitions for rehearing denied. No. 385. Puerto Rico Téléphoné Co. v. Figueroa de Arroyo et al., 400 U. S. 877, 953. Motion for leave to file second pétition for rehearing denied. No. 556. Sacco, aka Rosselli v. United States, 400 U. S. 903. Motion for leave to file pétition for rehearing denied. No. 762. Johnson v. Goodyear Tire & Rubber Co. et al., 400 U. S. 962. Pétition for rehearing denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. ORDERS 927 401 U. S. February 22, 24, 1971 No. 633. Ray, Trading as Candis O. Ray Agency v. Kansas City Stockyards Company of Maine, Trading as Golden Ox Restaurant, et al., 400 U. S. 999. Pétition for rehearing denied. The Chief Justice took no part in the considération or decision of this pétition. No. 5882. Williams v. Neil, Warden, 400 U. S. 966. Motion for leave to file pétition for rehearing and other relief denied. Assignment Orders An order of The Chief Justice designating and assign-ing Mr. Justice Clark (retired) to perform judicial duties in the United States Court of Appeals for the Fifth Circuit beginning February 1, 1971, and ending February 4, 1971, and for such further time as may be required to complété unfinished business, pursuant to 28 U. S. C. § 294 (a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295. An order of The Chief Justice designating and assign-ing Mr. Justice Clark (retired) to perform judicial duties in the United States Court of Appeals for the Tenth Circuit during the week of March 22, 1971, and for such further time as may be required to complété unfinished business, pursuant to 28 U. S. C. § 294 (a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295. February 24, 1971 Miscellaneous Order No. 5481. SCHLANGER V. SeAMANS, SECRETARY OF THE Air Force, et al. C. A. 9th Cir. [Certiorari granted, 400 U. S. 865.] Application for injunctive relief presented to Mr. Justice Douglas, and by him referred to the Court, denied. Mr. Justice Brennan and Mr. Justice Marshall are of the opinion that the application should be granted. 928 OCTOBER TERM, 1970 401 U. S. March 1, 1971 Affirmed on Appeal No. 1038. Lisker v. Kelley, Secretary of the Commonwealth, et al. Affirmed on appeal from D. C. M. D. Pa. Mr. Justice Douglas and Mr. Justice Brennan dissent. Mr. Justice Black is of the opinion that the case should be dismissed as moot. Reported below: 315 F. Supp. 777. No. 1071. Boat Transit, Inc., et al. v. United States et al. Affirmed on appeal from D. C. E. D. Mich. Mr. Justice Harlan and Mr. Justice White are of the opinion that probable jurisdiction should be noted and case set for oral argument. No. 1080. Fair et al. v. Kirk, Governor of Florida, et al. Affirmed on appeal from D. C. N. D. Fia. Reported below: 317 F. Supp. 12. Appeals Dismissed No. 929. Morse v. Hindman et al. Appeal from Sup. Ct. Kan. dismissed for want of jurisdiction. Treat-ing the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Reported below: 205 Kan. 207, 468 P. 2d 103. No. 994. Burton et al. v. American National Bank & Trust Co., Trustée, et al. Appeal from Sup. Ct. 111. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 46 111. 2d 249, 263 N. E. 2d 833. ORDERS 929 401 U. S. March 1, 1971 No. 787. Ohlendorf et ux. v. Gayles et al. Appeal from Ct. App. Md. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. No. 1026. Fenton et al. v. School Committee of Boston. Appeal from Sup. Jud. Ct. Mass. Motion of National Education Assn. for leave to file a brief as amicus curiae granted. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Reported below: ----------- Mass. ------, 260 N. E. 2d 676. No. 1031. Schneider v. California. Appeal from C. A. 9th Cir. Motion for leave to dispense with print-ing jurisdictional statement granted. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Reported below: 427 F. 2d 1178. No. 1096. Smith v. Eastern Orthodox Churches of Greater Detroit et al. Appeal from Sup. Ct. Mich. dismissed for want of jurisdiction. Reported below: 384 Mich. 82, 180 N. W. 2d 265. No. 5946. Wright v. Mississippi. Appeal from Sup. Ct. Miss. Motion for leave to proceed in forma pauperis granted. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 236 So. 2d 408. 930 OCTOBER TERM, 1970 March 1, 1971 401 U. S. Vacated and Remanded on Appeal No. 1068. Kugler, Attorney General of New Jersey, et al. v. Karp et al. Appeal from D. C. N. J. Judgment vacated and case remanded for further considération in light of judgment of this Court in No. 2, Younger v. Harris [ante, p. 37], No. 7, Samuels v. Mack-ell, and No. 9, Fernandez v. Mackell [ante, p. 66]. Mr. Justice Douglas is of the opinion that the judgment should be affirmed for reasons set forth in his dissenting opinion in Younger v. Harris, ante, p. 58. Reported below: 310 F. Supp. 627. Certiorari Granted—Vacated and Remanded No. 74. Zim Israël Navigation Co., Ltd. v. Tara-bocchia. C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further considération in light of Usner n. Luckenbach Overseas Corp., 400 U. S. 494, decided January 25, 1971. Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Harlan, and Mr. Justice Brennan dissent. Reported below: 417 F. 2d 476. Miscellaneous Orders* No.--------. Karr et al. v. Schmidt et al. C. A. 5th Cir. Motion to vacate stay of injunction denied. No.--------. Spillers v. Slaughter et al. ; and No. . Pope et al. v. Haimowitz et al. D. C. M. D. Fia. Applications for stay and/or injunctive relief presented to Mr. Justice Black, and by him referred to the Court, denied. *For Court’s order prescribing amendments to the Fédéral Rules of Civil Procedure, the Fédéral Rules of Criminal Procedure, and the Fédéral Rules of Appellate Procedure, see post, p. 1019. ORDERS 931 401 U. S. March 1, 1971 No. 40, Orig. Pennsylvania v. New York et al. Report of Spécial Master on application of States of California, Arizona, and Indiana for leave to intervene is adopted. [For earlier orders herein, see, e. g., 400 U. S. 1019.] No. 89. Lemon et al. v. Kurtzman, Superintend-ent of Public Instruction of Pennsylvania, et al. Appeal from D. C. E. D. Pa. [Probable jurisdiction noted, 397 U. S. 1034] ; No. 153. Tilton et al. v. Richardson, Secretary of Health, Education, and Welfare, et al. Appeal from D. C. Conn. [Probable jurisdiction noted, sub nom. Tilton v. Finch, 399 U. S. 904] ; No. 569. Earley et al. v. DiCenso et al.; and No. 570. Robinson, Commissioner of Education of Rhode Island, et al. v. DiCenso et al. Appeals from D. C. R. I. [Probable jurisdiction noted, 400 U. S. 901.] Motion of National Association of Laymen to file a brief as amicus curiae in No. 89 granted. Motion of Connecticut State Conférence on Branches of NAACP et al. for leave to file a brief as amici curiae in Nos. 89 and 153 granted. Motion of Center for Law and Education et al. for leave to file a brief as amici curiae in No. 89 out of time granted. Motion of National Catholic Educational Assn. et al. for leave to file a brief as amici curiae in Nos. 569 and 570 granted. The Chief Justice, Mr. Justice Marshall, and Mr. Justice Blackmun are of the opinion that these motions should be denied because they were untimely filed. Motions to file briefs as amici curiae, in Nos. 569 and 570, by Connecticut State Conférence on Branches of NAACP et al., Center for Law & Education et al., and American Jewish Committee et al., granted. Motion of Peter L. Costas, Es-quire, for leave to participate in oral argument on behalf of Connecticut State Conférence on Branches of NAACP et al. as amici curiae denied. 932 OCTOBER TERM, 1970 March 1, 1971 401 U. S. No. 338. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation et al. C. A. 7th Cir. [Certiorari granted, 400 U. S. 864.] Motion of Blumcraft of Pittsburgh opposing motion of Kawneer Co., Inc., for leave to file a brief as amicus curiae, after argument, denied. No. 360. Grove Press, Inc., et al. v. Flask et al. Appeal from D. C. N. D. Ohio. Motion of appellee Gilmartin to amend his original motion to dismiss or affirm granted. Mr. Justice Douglas took no part in the considération or decision of this motion. No. 507. California Department of Hum an Resources Development et al. v. Java et al. Appeal from D. C. N. D. Cal. [Probable jurisdiction noted, 400 U. S. 877.] Motion of appellees to strike brief for the United States as amicus curiae denied. No. 712. Triangle Improvement Council et al. v. Ritchie, Commissioner, State Road Commission of West Virginia, et al. C. A. 4th Cir. [Certiorari granted, 400 U. S. 963.] Motion for injunction presented to The Chief Justice, and by him referred to the Court, denied. Mr. Justice Douglas and Mr. Justice Brennan are of the opinion that the motion should be granted. No. 835. Dewey v. Reynolds Metals Co. C. A. 6th Cir. [Certiorari granted, 400 U. S. 1008.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted and 30 minutes allotted for that purpose. Respondent allotted 30 additional minutes for oral argument. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice White are of the opinion that the motion should be denied. Mr. Justice Harlan took no part in the considération or decision of this motion. ORDERS 933 401 U. S. March 1, 1971 No. 982. Eckels et al. v. Ross et al. C. A. 5th Cir. Application for stay of modification as required by the Court of Appeals presented to Mr. Justice Black, and by him referred to the Court, denied. Reported below: 434 F. 2d 1140. No. 1258. United Aircraft Corp. v. National Labor Relations Board et al. C. A. 2d Cir. Motion of respondent District 91, International Association of Ma-chinists & Aerospace Workers, AFL-CIO, to advance disposition of pétition denied. Reported below: 434 F. 2d 1198. No. 6259. Pope v. Rundle, Correctional Super-INTENDENT, ET AL.,’ and No. 6264. Thomas v. Wingo, Warden. Motions for leave to file pétitions for writs of habeas corpus denied. No. 6351. Ericksen v. United States. Motion for leave to file pétition for writ of mandamus denied. Probable Jurisdiction Noted or Postponed No. 91. Zicarelli v. New Jersey State Commission of Investigation. Appeal from Sup. Ct. N. J. Probable jurisdiction noted limited to Questions 1, 2, 3, and 4 as set forth in the jurisdictional statement which read as follows: “1. Whether a state immunity statute, and in particular N. J. S. A. 52:9M-17, which merely prevents the subséquent use of a witness’s testimony and evidence derived therefrom is sufficient to supplant the Fifth Amendment’s privilège against self-incrimination? “2. Whether Counselman v. Hitchcock, 142 U. S. 547 (1892), which stated that ‘absolute immunity against further prosecution’ is required before the Fifth Amendment privilège may be supplanted, is still the law of the land? 934 OCTOBER TERM, 1970 March 1, 1971 401 U. S. “3. Whether the immunity statute in question, N. J. S. A. 52:9M-17 is constitutionally defective due to its provision that only a ‘responsive’ answer, or evidence derived therefrom will not be used against the witness, where the statute provides no guidelines for determining what is a ‘responsive’ answer? “4. Whether the immunity statute, N. J. S. A. 52:9M-17, can supplant the Fifth Amendment privilège when it fails to provide immunity against foreign prosecution, with respect to an individual who has a real fear of such foreign prosecution?” As to ail other questions set forth in the jurisdictional statement, the appeal is dismissed for want of a substantial fédéral question. Mr. Justice Brennan took no part in the considération or decision of this matter. Reported below: 55 N. J. 249, 261 A. 2d 129. [For earlier orders herein, see, e. g., 398 U. S. 948.] No. 430. Reed v. Reed, Administrator. Appeal from Sup. Ct. Idaho. Probable jurisdiction noted. [For earlier order herein, see 400 U. S. 816.] No. 769. Ellington, Governor of Tennessee, et al. v. Blumstein. Appeal from D. C. M. D. Tenn. Probable jurisdiction noted. No. 804. Eisenstadt, Sheriff v. Baird. Appeal from C. A. lst Cir. Probable jurisdiction noted. Reported below: 429 F. 2d 1398. No. 1042. Diffenderfer et al. v. Central Baptist Church of Miami, Florida, Inc., et al. Appeal from D. C. S. D. Fia. Probable jurisdiction noted. Reported below: 316 F. Supp. 1116. No. 810. United States v. Marion et al. Appeal from D. C. D. C. Further considération of question of jurisdiction postponed to hearing of case on the merits. ORDERS 935 401 U. S. March 1, 1971 No. 1091. Richardson, Secretary of Health, Education, and Welfare v. Belcher. Appeal from D. C. S. D. W. Va. Probable jurisdiction noted. Reported below: 317 F. Supp. 1294. No. 1025. United States v. Brewster. Appeal from D. C. D. C. Further considération of question of jurisdiction postponed to hearing of case on the merits. No. 1100. Board of Regents of the University of Texas System v. New Left Education Project et al. Appeal from D. C. W. D. Tex. Further considération of question of jurisdiction postponed to hearing of case on the merits. Reported below: 326 F. Supp. 158. No. 6356. Lynch et al. v. Household Finance Corp. et al. Appeal from D. C. Conn. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted. Reported below: 318 F. Supp. 1111. Certiorari Granted No. 565. Sarno et al. v. Illinois Crime Investigat-ing Commission. Sup. Ct. 111. Pétition for writ of certiorari granted limited to Questions 1 and 3 as set forth in the pétition which read as follows: “1. Must the State affirmatively demonstrate to re-spondents, when testifying pursuant to the Illinois Immunity Statute, that an immunity, as broad in scope as the Fifth Amendment, is available and applicable to them? “3. Assuming the immunity statute was not as broad as the Fifth Amendment, as far as future state prosecutions are concerned, may a person plead the Fifth Amendment when it is évident, from the implication of the questions in the setting in which they are asked, that responsive answers to the questions might be dan-gerous because injurious disclosure could resuit in future state prosecutions?” Reported below: 45 111. 2d 473, 259 N. E. 2d 267. 936 OCTOBER TERM, 1970 March 1, 1971 401 U. S. No. 892. Giglio v. United States. C. A. 2d Cir. Certiorari granted. No. 1028. United States v. Campos-Serrano. C. A. 7th Cir. Certiorari granted. Reported below: 430 F. 2d 173. No. 1092. Victory Carriers, Inc., et al. v. Law. C. A. 5th Cir. Certiorari granted. Reported below: 432 F. 2d 376. No. 1060. Hawaii v. Standard Oil Co. of California et al. C. A. 9th Cir. Certiorari granted. Mr. Justice Harlan took no part in the considération or decision of this pétition. Reported below: 431 F. 2d 1282. No. 5944. Alexander v. Louisiana. Sup. Ct. La. Motion to proceed in forma pauperis granted. Certiorari granted. Reported below: 255 La. 941, 233 So. 2d 891. Certiorari Denied. (See also Nos. 787, 929, 994, 1026, 1031, and 5946, supra.) No. 720. Norton v. Idaho. Sup. Ct. Idaho. Certiorari denied. Reported below: 93 Idaho 648, 470 P. 2d 413. No. 767. Costello v. New Jersey. Super Ct. N. J. Certiorari denied. No. 795. Nicklos Drilling Co. v. Unit Crâne & Shovel Corp. ; and No. 796. Fontenot v. Unit Crâne & Shovel Corp. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 569. No. 805. Beto, Corrections Director v. King. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 221. ORDERS 937 401 U. S. March 1, 1971 No. 819. Owings v. Maryland. Ct. Sp. App. Md. Certiorari denied. Reported below: 8 Md. App. 572, 261 A. 2d 223. No. 822. Rod Ric Corp. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. Reported below: 428 F. 2d 948. No. 862. Lagerquist et al. v. South Carolina. Sup. Ct. S. C. Certiorari denied. Reported below: 254 S. C. 501, 176 S. E. 2d 141. No. 922. Hankins v. Tennessee. Sup. Ct. Tenn. Certiorari denied. No. 977. Martin-Marietta Corp. et al. v. Maricopa County ; No. 984. United Concrète Pipe Corp. et al. v. Maricopa County et al. ; and No. 1013. American Pipe & Construction Co. et al. v. Maricopa County. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 1145. No. 1024. Geyer Broadcasting Co., Inc. v. Hôlder, U. S. District Judge. C. A. 7th Cir. Certiorari denied. No. 1027. The Electra et al. v. Continental Oïl Co. et al. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 391. No. 1033. Braswell Motor Freight Lines, Inc. v. Teamsters Local Unions 745 et al. C. A. 5th Cir. Certiorari denied. Reported below: 428 F. 2d 1371. No. 1035. Horvath v. United States. C. A. 6th Cir. Certiorari denied. No. 1043. E. V. Williams Co. v. National Labor Relations Board. C. A. 4th Cir. Certiorari denied. Reported below: 432 F. 2d 557. 938 OCTOBER TERM, 1970 March 1, 1971 401 U. S. No. 1037. Peacock v. Retail Crédit Co. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 31. No. 1039. Tocco v. United States; and No. 1040. Nasse et al. v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1293. No. 1046. Barash v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 358. No. 1051. Reiff v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 257. No. 1052. Sidney et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 60. No. 1053. Foster Wheeler Corp. v. Babcock & Wilcox Co. C. A. 3d Cir. Certiorari denied. Reported below: 432 F. 2d 385. No. 1054. Thurman v. Tennessee. Ct. Crim. App. Tenn. Certiorari denied. Reported below: ------- Tenn. App.-----, 455 S. W. 2d 177. No. 1055. Ashbrook v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 433 F. 2d 988. No. 1056. Hing Wan Wong v. Liquor Control Commission. Sup. Ct. Conn. Certiorari denied. Reported below: 160 Conn. 1, 273 A. 2d 709. No. 1057. Bondholders Protective Committee (of the 314% General Mortgage Bonds of the Central Railroad Co.) v. 3^% Mortgage Bondholders Protective Committee et al. C. A. 3d Cir. Certiorari denied. Reported below: 429 F. 2d 507. No. 1075. Viggiano v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 433 F. 2d 716. ORDERS 939 401 U. S. March 1, 1971 No. 1063. SOUTHWIRE Co. ET AL. V. NATIONAL LABOR Relations Board. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 1050. No. 1064. Stahlin Bros. Fibre Works, Inc. v. Panduit Corp. C. A. 6th Cir. Certiorari denied. Reported below: 430 F. 2d 221. No. 1065. Kennedy v. Wyoming. Sup. Ct. Wyo. Certiorari denied. Reported below: 470 P. 2d 372 and 474 P. 2d 127. No. 1072. Ricchetti, dba Kings County Distributing Co., et al. v. Meister Brau, Inc. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 1211. No. 1077. Nagelberg et ux. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 585. No. 1083. Appalachian Volunteers, Inc., et al. v. Clark, Superintendent of Schools of Floyd County, Kentucky, et al. C. A. 6th Cir. Certiorari denied. Reported below: 432 F. 2d 530. No. 1084. S. Felicione & Sons Fish Co., Inc. v. Citizens Casualty Co. of New York. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 136. No. 1085. Waterman Steamship Corp. v. Commis-sioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 1185. No. 1086. MacFarlane v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 703. No. 1088. Vandygrift v. Florida et al. Sup. Ct. Fia. Certiorari denied. 940 OCTOBER TERM, 1970 March 1, 1971 401 U. S. No. 1093. Auld, Administratrix v. Terminal Rail-road Association of St. Louis. Sup. Ct. Mo. Certiorari denied. Reported below: 263 S. W. 2d 297. No. 1094. Sanfira v. Moga. Sup. Ct. Ohio. Certiorari denied. No. 1095. Borden, Inc. v. Ice Cream Drivers & Employées Union Local 757. C. A. 2d Cir. Certiorari denied. Reported below: 433 F. 2d 41. No. 1097. Wolfish v. Klein. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported below: 33 App. Div. 2d 113, 305 N. Y. S. 2d 879. No. 1098. Garfield & Co. v. Wiest. C. A. 2d Cir. Certiorari denied. Reported below: 432 F. 2d 849. No. 1099. Dippolito v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 433 F. 2d 1049. No. 1105. Malinsky v. United States. C. A. 2d Cir. Certiorari denied. No. 1106. Bridge Corporation of America v. American Contract Bridge League, Inc., et al. C. A. 9th Cir. Certiorari denied. Reported below: 428 F. 2d 1365. No. 1107. Select Minority Trust v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 388. No. 1108. Ray, trading as Candis O. Ray Agency v. Fédéral Communications Commission et al. C. A. D. C. Cir. Certiorari denied. No. 1155. Tri-Service Drilling Co. et al. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 1271. ORDERS 941 401 U. S. March 1, 1971 No. 1194. Moran Oil Producing & Drilling Corp. v. National Labor Relations Board. C. A. lOth Cir. Certiorari denied. Reported below: 432 F. 2d 746. No. 5516. McDaniel v. Sheriff of Dallas County. C. A. 5th Cir. Certiorari denied. No. 5570. Garfias et ux. v. Collections Unlimited. App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied. No. 5769. Cinnamon v. Kentucky. Ct. App. Ky. Certiorari denied. Reported below: 455 S. W. 2d 583. No. 5834. Clarke v. Neil, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 427 F. 2d 1322. No. 5855. Gunthorpe v. New Mexico. Ct. App. N. M. Certiorari denied. Reported below: 81 N. M. 515, 469 P. 2d 160. No. 5884. LaPlaca v. New York. C. A. 2d Cir. Certiorari denied. No. 5900. Meadows v. New York et al. C. A. 2d Cir. Certiorari denied. Reported below: 426 F. 2d 1176. No. 5905. Frink v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Reported below: 34 App. Div. 2d 896, 311 N. Y. S. 2d 1016. No. 5908. Tate, aka Butler v. Illinois. Sup. Ct. 111. Certiorari denied. Reported below: 45 111. 2d 540, 259 N. E. 2d 791. No. 5910. Brown v. Florida. Sup. Ct. Fia. Certiorari denied. No. 5936. Martinez v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Reported below: 34 App. Div. 2d 174, 311 N. Y. S. 2d 117. 415-649 0 - 72 - 62 942 OCTOBER TERM, 1970 March 1, 1971 401 U. S. No. 5913. Ricehill v. Iowa. Sup. Ct. lowa. Certiorari denied. Reported below: 178 N. W. 2d 288. No. 5943. Amos v. Mississippi. Sup. Ct. Miss. Certiorari denied. Reported below: 234 So. 2d 630. No. 5964. Walker v. Brantley, Warden. C. A. 7th Cir. Certiorari denied. No. 5969. In re Brown. C. A. 3d Cir. Certiorari denied. No. 5980. Brown v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 424 F. 2d 457. No. 6001. Tasse v. California. C. A. 9th Cir. Certiorari denied. No. 6002. Soto v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 456 S. W. 2d 389. No. 6004. Henderson v. Michigan. Sup. Ct. Mich. Certiorari denied. Reported below: See 6 Mich. App. 379, 149 N. W. 2d 258. No. 6015. Dillon v. Idaho. Sup. Ct. Idaho. Certiorari denied. Reported below: 93 Idaho 698, 471 P. 2d 553. No. 6031. Cooper v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 1325. No. 6135. McGee v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 395. No. 6192. Smith v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 433 F. 2d 341. No. 6205. Brandom v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 431 F. 2d 1391. No. 6213. Trotter v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 433 F. 2d 113. ORDERS 943 401 U. S. March 1, 1971 No. 6215. Earley v. California et al. Ct. App. Cal., lst App. Dist. Certiorari denied. No. 6218. Rodriguez v. United States. C. A. lst Cir. Certiorari denied. Reported below: 433 F. 2d 760. No. 6220. Miller v. Maryland. Ct. Sp. App. Md. Certiorari denied. No. 6222. Wilkens v. Maryland. Ct. Sp. App. Md. Certiorari denied. No. 6238. Thompson v. Nelson, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 429 F. 2d 1393. No. 6240. Schroeder v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 433 F. 2d 846. No. 6241. Conklin v. Wainwright, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 542. No. 6242. Davis v. Washington. Ct. App. Wash. Certiorari denied. Reported below: 2 Wash. App. 380, 467 P. 2d 875. No. 6245. Walker v. Cardwell, Warden. C. A. 6th Cir. Certiorari denied. No. 6246. Padilla v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 433 F. 2d 962. No. 6248. McDowell v. United States. C. A. 6th Cir. Certiorari denied. No. 6260. Mendoza v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 891. No. 6271. Moody v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 74. 944 OCTOBER TERM, 1970 March 1, 1971 401 U. S. No. 6270. Sanders v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 165. No. 6283. Glasshofer v. Rundle, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 6284. Donovan v. United States et al. C. A. D. C. Cir. Certiorari denied. Reported below: 139 U. S. App. D. C. 364, 433 F. 2d 522. No. 6285. Foggy v. Arizona et al. C. A. 9th Cir. Certiorari denied. No. 6286. Thompson v. United States; and No. 6287. Richardson v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 432 F. 2d 997. No. 6292. Perkins v. Brown et al. Sup. Ct. La. Certiorari denied. Reported below: 256 La. 859, 239 So. 2d 360. No. 6296. Newton v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 163. No. 6298. Bivens v. United States. C. A. 2d Cir. Certiorari denied. No. 6301. Oliver v. Ellenbogen, Judge, et al. C. A. 3d Cir. Certiorari denied. No. 6309. Sailer v. Craven, Warden. C. A. 9th Cir. Certiorari denied. No. 6312. Buchanan v. Michigan. C. A. 6th Cir. Certiorari denied. No. 6313. Taddeo v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 228. No. 6315. Meeks v. California. Ct. App. Cal., lst App. Dist. Certiorari denied. ORDERS 945 401 U. S. March 1, 1971 No. 6320. Fletcher v. Brierley, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 6321. Gomori v. Perini, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. No. 6323. Williams v. Brierley, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 6324. Delph v. Ohio. Ct. App. Ohio, Hamilton County. Certiorari denied. No. 6327. Robles v. New York. Ct. App. N. Y. Certiorari denied. Reported below: 27 N. Y. 2d 155, 263 N. E. 2d 304. No. 6328. Cordle v. United States. C. A. 6th Cir. Certiorari denied. No. 6330. Clemons v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 142 U. S. App. D. C. 177, 440 F. 2d 205. No. 6333. Morrison v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 1227. No. 6334. Byrd v. Fitzharris, Warden. C. A. 9th Cir. Certiorari denied. Reported below : 430 F. 2d 937. No. 6336. McCarty v. Gaffney, Warden. Sup. Ct. Kan. Certiorari denied. No. 6340. Howell v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 6341. Campbell v. Michigan. Ct. App. Mich. Certiorari denied. Reported below: 26 Mich. App. 196, 182 N. W. 2d 4. No. 6344. Rubin v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 442. 946 OCTOBER TERM, 1970 March 1, 1971 401 U. S. No. 6345. Diggs v. Mooney et al. Sup. Ct. 111. Certiorari denied. No. 6349. Escobar v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 6352. Phillips v. Wade et al. Ct. App. Ky. Certiorari denied. No. 6354. Vincent v. United States. C. A. 8th Cir. Certiorari denied. No. 6355. Maras v. Gehring. C. A. D. C. Cir. Certiorari denied. No. 6360. Seymour v. O’Shea et al. C. A. 7th Cir. Certiorari denied. No. 6361. Cobb v. Railroad Retirement Board. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 406. No. 6371. Borelli v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 435 F. 2d 500. No. 6372. Samuel v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 433 F. 2d 663. No. 6374. Huffman v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 819. No. 6376. Standley v. Rhay, Penitentiary Superintendent. C. A. 9th Cir. Certiorari denied. No. 6378. Jones et al. v. Kentucky. Ct. App. Ky. Certiorari denied. Reported below: 457 S. W. 2d 627. No. 6383. Stokes et al. v. Illinois. Sup. Ct. 111. Certiorari denied. Reported below: 46 111. 2d 325, 263 N. E. 2d 21. ORDERS 947 401 U. S. March 1, 1971 No. 6384. Morgan v. Null et al. C. A. 2d Cir. Certiorari denied. No. 6388. Harkey v. Illinois. App. Ct. 111., Ist Dist. Certiorari denied. Reported below: 123 111. App. 2d 256, 260 N. E. 2d 55. No. 766. Turner, Attorney General of Iowa, et al. v. Wilhelm et al. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. Reported below: 431 F. 2d 177. No. 950. Otter Tail Power Co. v. Fédéral Power Commission et al. C. A. 8th Cir. Certiorari denied. The Chief Justice and Mr. Justice Blackmun took no part in the considération or decision of this pétition. Reported below: 429 F. 2d 232. No. 991. Koserkoff v. Chesapeake & Ohio Rail-way Co. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 427 F. 2d 1049. No. 1067. First National Bank of Cornelia v. Jackson, Superintendent of Banks of Georgia, et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 430 F. 2d 1200. No. 1069. Weil, aka Gideon, et al. v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 1320. No. 1078. Herpich et al. v. Wilder et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 430 F. 2d 818. 948 OCTOBER TERM, 1970 March 1, 1971 401 U. S. No. 1109. Guzick v. Drebus et al. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 431 F. 2d 594. No. 6243. Locke, aka Johnson v. Erickson, Warden. Sup. Ct. S. D. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 85 S. D. 262, 181 N. W. 2d 100. No. 1036. Lash, Warden v. Brown. C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 432 F. 2d 1129. No. 1079. Dobbs Houses, Inc. v. Sanders. C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 431 F. 2d 1097. No. 1047. American Radiator & Standard Sanitary Corp. et al. v. United States et al.; No. 1048. Borg-Warner Corp. v. United States; No. 1049. Held v. United States; and No. 1050. Kohler Co. v. United States. C. A. 3d Cir. Certiorari denied. Mr. Justice White and Mr. Justice Marshall took no part in the considération or decision of these pétitions. Reported below: 433 F. 2d 174. No. 1058. Boiardo v. New Jersey. Super. Ct. N. J. Certiorari denied. Mr. Justice Brennan took no part in the considération or decision of this pétition. Reported below: 111 N. J. Super. 219, 268 A. 2d 55. No. 1061. Curry v. Sher et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. ORDERS 949 401 U. S. March 1, 1971 No. 1062. Fields Productions, Inc. v. United Art-ists Corp. C. A. 2d Cir. Certiorari denied. Mr. Justice Brennan and Mr. Justice White are of the opinion that certiorari should be granted. Mr. Justice Douglas took no part in the considération or decision of this pétition. Reported below: 432 F. 2d 1010. No. 1070. Roy v. Illinois. App. Ct. 111., lst Dist. Motion to dispense with printing pétition granted. Certiorari denied. Reported below: 124 111. App. 2d 52, 260 N. E. 2d 5. No. 1089. Duncan et al. v. Cranston et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of this pétition. Reported below: 428 F. 2d 822. No. 6359. Levine v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of this pétition. Reported below: 430 F. 2d 641. No. 6249. Pope v. United States. C. A. 8th Cir. Motion to defer considération of pétition denied. Certiorari denied. Mr. Justice Douglas is of the opinion that the motion should be granted. Mr. Justice Marshall and Mr. Justice Blackmun took no part in the considération or decision of this motion and pétition. Reported below: 434 F. 2d 325. Rehearing Denied No. 776. Rodicker v. Illinois Central Railroad Co.,400 U. S. 1012; No. 813. Timmons v. South Carolina Tricenten-nial Commission et al., 400 U. S. 986; and No. 829. Adler Construction Co. v. United States, 400 U. S. 993. Pétitions for rehearing denied. 950 OCTOBER TERM, 1970 March 1, 5, 8, 1971 401 U. S. No. 868. Harper v. United States, 400 U. S. 1024; No. 5678. Daegele v. Crouse, Warden, 400 U. S. 1010; No. 5843. Chapman v. United States, 400 U. S. 995; No. 6020. Hawkins et al. v. Smith et al., 400 U. S. 999; No. 6053. Harrison v. Clark County School District et al., 400 U. S. 1021; No. 6072. Logan v. Casscles, Warden, 400 U. S. 1022; No. 6078. Gilboy v. United States, 400 U. S. 1022; and No. 6095. Akers v. United States, 400 U. S. 1023. Pétitions for rehearing denied. No. 113. Decker, U. S. District Judge, et al. v. Harper & Row Publishers, Inc., et al., 400 U. S. 348. Pétition for rehearing denied. Mr. Justice Douglas took no part in the considération or decision of this pétition. March 5, 1971 Dismissed Under Rule 60 No. 545. National Industries for the Blind v. Ballerina Pen Co., Inc., et al. C. A. D. C. Cir. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Reported below: 140 U. S. App. D. C. 98, 433 F. 2d 1204. March 8, 1971 Dismissals Under Rule 60 No. 740. Green v. Kentucky. Ct. App. Ky. [Certiorari granted, 400 U. S. 990.] Writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Reported below: 454 S. W. 2d 336. ORDERS 951 401 U. S. March 8, 1971 No. 1142. Pratz et al. v. Louisiana Polytechnic Institute et al. Appeal from D. C. W. D. La. dismissed pursuant to Rule 60 of the Rules of this Court. Reported below: 316 F. Supp. 872. Affirmed on Appeal No. 1133. Williams, Guardian, et al. v. McNair, Governor of South Carolina, et al. Affirmed on appeal from D. C. S. C. Mr. Justice Harlan is of the view that the Court lacks jurisdiction over this direct appeal from decision of three-judge court denying in-junctive relief because state statute attacked was not one of “general and statewide application/’ Moody v. Flowers, 387 U. S. 97, 101 (1967). Therefore, he would vacate judgment of District Court and remand case to that court so that it might enter a fresh decree from which timely appeal could be taken to the Court of Appeals. See Rockefeller v. Catholic Medical Center, 397 U. S. 820 (1970). Reported below: 316 F. Supp. 134. Appeals Dismissed No. 1115. Magar v. Maryland. Appeal from Ct. Sp. App. Md. dismissed for want of jurisdiction. Treat-ing the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. No. 1132. City of Millard et al. v. City of Omaha et al. Appeal from Sup. Ct. Neb. dismissed for .want of substantial fédéral question. Mr. Justice Blackmun is of the opinion that probable jurisdiction should be noted and the case set for oral argument. Reported below: 185 Neb. 617, 177 N. W. 2d 576. No. 1151. In re Napolitano. Appeal from 111. Cts. Comm’n dismissed for want of substantial fédéral question. Mr. Justice Brennan would dismiss the appeal for want of jurisdiction. 952 OCTOBER TERM, 1970 March 8, 1971 401 U. S. Certiorari Granted—Vacated and Remanded. (See also No. 5928, ante, p. 481.) No. 6394. Yeto v. United States. C. A. 9th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further proceedings in light of Johnson v. United States, 352 U. S. 565. Miscellaneous Orders No.-------. Haywood v. Merrill, U. S. Circuit Judge, et al. C. A. 9th Cir. Motion of National Basketball Assn. to vacate stay heretofore granted by Mr. Justice Douglas [sub nom. Haywood v. National Basketball Assn., post, p. 1204] denied. Mr. Justice Stewart and Mr. Justice Blackmun are of the opinion that the motion to vacate should be granted. No. ------. Galasso v. Commanding Officer, U. S. Arm y, Ft. Hamilton, New York, et al. C. A. 2d Cir. Application for stay of mandate of United States Court of Appeals for the Second Circuit and for release on bail denied. Reported below: 438 F. 2d 339. No. 91. Zicarelli v. New Jersey State Commission of Investigation. Appeal from Sup. Ct. N. J. [Probable jurisdiction noted, ante, p. 933.] Application for release on bail denied. Mr. Justice Douglas is of the opinion that the application should be granted. Mr. Justice Brennan took no part in the considération or decision of this application. No. 1341. Jackson et al. v. Ogilvie, Governor of Illinois, et al. Appeal from D. C. N. D. 111. Motion to expedite considération of appeal denied. [For pre-vious order herein, see ante, p. 904.] No. 1363. Catena v. New Jersey State Commission of Investigation. Appeal from Super. Ct. N. J. Motion to expedite considération of appeal denied. Mr. ORDERS 953 401 U. S. March 8, 1971 Justice Brennan took no part in the considération or decision of this motion. No. 712. Triangle Improvement Council et al. v. Ritchie, Commissioner, State Road Commission of West Virginia, et al. C. A. 4th Cir. [Certiorari granted, 400 U. S. 963.] Motion of the Solicitor General for leave to permit Wm. Bradford Reynolds to présent oral argument pro hac vice granted. No. 1386. Chicago Housing Authority et al. v. Gautreaux et al. C. A. 7th Cir. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied. Reported below: 436 F. 2d 306. No. 1390. Pruett v. Texas. Appeal from Ct. Crim. App. Tex. Application for stay of mandate presented to Mr. Justice Brennan, and by him referred to the Court, denied. Reported below: 463 S. W. 2d 191. No. 5105. Zenith Radio Corp. v. Castle, Chief Judge, U. S. District Court, et al. Motion for leave to file pétition for writ of mandamus denied. Certiorari Granted No. 1129. Fein v. Sélective Service System Local Board No. 7 of Yonkers, New York, et al. C. A. 2d Cir. Certiorari granted. Reported below: 430 F. 2d 376. No. 6048. Adams v. Illinois. Sup. Ct. 111. Motion for leave to proceed in forma pauperis granted. Certiorari granted limited to Question 2 as set forth in pétition which reads as follows: “2. Whether Coleman v. Alabama, 399 U. S. 1 (1970) is rétroactive and/or applicable to a cause where, prior to trial, the défendant objected to the failure to provide counsel at the preliminary hearing?” Reported below: 46 111. 2d 200, 263 N. E. 2d 490. 954 OCTOBER TERM, 1970 March 8, 1971 401 U. S. No. 5940. Haines v. Kerner et al. C. A. 7th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Reported below: 427 F. 2d 71. Certiorari Denied. (See also No. 1115, supra.) No. 238. Olson Bodies, Inc., formerly Grumman Allied Industries, Inc. v. National Labor Relations Board et al. C. A. 2d Cir. Certiorari denied. Reported below: 420 F. 2d 1187. No. 900. York et ux. v. Board of Education of Independent School District 89, Oklahoma County. C. A. lOth Cir. Certiorari denied. Reported below: 429 F. 2d 66. No. 963. Mack v. Florida State Board of Dentis-try. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 862. No. 1113. Lee Way Motor Freight, Inc. v. Jones et al. C. A. lOth Cir. Certiorari denied. Reported below: 431 F. 2d 245. No. 1116. Galtieri v. Florida. Dist. Ct. App. Fia., 3d Dist. Certiorari denied. Reported below: 234 So. 2d 172. No. 1117. Fein v. Follette, Warden. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported below: 34 App. Div. 2d 835, 312 N. Y. S. 2d 531. No. 1118. Thomaidis et ux. v. Immigration and Naturalization Service. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 711. No. 1122. Metropolitan Fédéral Savings & Loan Association of New York v. East Brooklyn Savings Bank, aka Metropolitan Savings Bank, et al. C. A. 2d Cir. Certiorari denied. ORDERS 955 401 U. S. March 8, 1971 No. 1119. Pacific Indemnity Co. v. Acel Delivery Service, Inc., et al. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 952. No. 1120. O’Hair et al. v. Paine et al. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 66. No. 1123. Jackson Farmers, Inc., formerly Farm-ers Union Co-Operative Business Assn. v. National Labor Relations Board. C. A. lOth Cir. Certiorari denied. Reported below: 432 F. 2d 1042. No. 1124. Jack Neilson, Inc. v. The Tug Peggy et al. C. A. 5th Cir. Certiorari denied. Reported below: 428 F. 2d 54. No. 1125. Ferguson v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 1128. Peltz v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 433 F. 2d 48. No. 1130. Nolynn Association of Separate Baptist in Christ of Kentucky et al. v. Oak Grove Separate Baptist Church et al. Ct. App. Ky. Certiorari denied. Reported below: 457 S. W. 2d 633. No. 1131. 21 Turtle Creek Square, Ltd. v. New York State Teachers’ Retirement System. C. A. 5th Cir. Certiorari denied. Reported below: 425 F. 2d 1366 and 432 F. 2d 64. No. 1135. ScORATOW, AKA SIMON ET AL. V. UNITED States. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 1288. No. 1137. Triplett v. Illinois. Sup. Ct. 111. Certiorari denied. Reported below: 46 111. 2d 109, 263 N. E. 2d 24. 956 OCTOBER TERM, 1970 March 8, 1971 401 U. S. No. 1140. D. S. Brown Co. et al. v. Acme Highway Products Corp. C. A. 6th Cir. Certiorari denied. Reported below: 431 F. 2d 1074. No. 1141. Package Devices, Inc. v. Sun Ray Drug Co. et al. C. A. 3d Cir. Certiorari denied. Reported below: 432 F. 2d 272. No. 1143. McMahan v. States Steamship Co. Sup. Ct. Ore. Certiorari denied. Reported below: 256 Ore. 554, 474 P. 2d 515. No. 1144. Melzer v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 1145. Quest, Inc., et al. v. Mercantile National Bank of Chicago et al. C. A. 7th Cir. Certiorari denied. Reported below: 431 F. 2d 261. No. 1149. Davenport v. City Rent and Réhabilitation Administration of the City of New York et al. C. A. 2d Cir. Certiorari denied. No. 1152. Baker Mfg. Co. v. Whitewater Mfg. Co. C. A. 7th Cir. Certiorari denied. Reported below: 430 F. 2d 1008. No. 1153. Charles Sales Corp. et al. v. Hodgskin et al. Dist. Ct. App. Fia., 4th Dist. Certiorari denied. Reported below: 239 So. 2d 106. No. 5704. Leeper v. Michigan. Sup. Ct. Mich. Certiorari denied. No. 5960. Norman v. Georgia. Ct. App. Ga. Certiorari denied. Reported below: 121 Ga. App. 753, 175 S. E. 2d 119. No. 6024. Washington v. Superior Court for Los Angeles County. Ct. App. Cal., 2d App. Dist. Certiorari denied. ORDERS 957 401 U. S. March 8, 1971 No. 6025. Cole v. Mancusi, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 429 F. 2d 61. No. 6039. Eddins v. Alabama. Ct. Crim. App. Ala. Certiorari denied. No. 6056. Wardrop v. Brierley, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 6064. Claunch v. Page, Warden. C. A. lOth Cir. Certiorari denied. Reported below: 427 F. 2d 841. No. 6214. Smith v. California. Super. Ct. Cal., County of Los Angeles. Certiorari denied. No. 6293. Childress v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 484. No. 6308. Collins v. United States. C. A. 7th Cir. Certiorari denied Reported below: 435 F. 2d 698. No. 6314. Craft v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 981. No. 6322. Bennett v. Virgin Islands. C. A. 3d Cir. Certiorari denied. Reported below: 427 F. 2d 535. No. 6348. Sadowy v. Mancusi, Warden. C. A. 2d Cir. Certiorari denied. No. 6357. Neal v. United States. C. A. D. C. Cir. Certiorari denied. No. 6363. Meyers v. Commissioner of Internal Revenue. C. A. 3d Cir. Certiorari denied. Reported below: 435 F. 2d 171. No. 6365. Reed v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 432 F. 2d 205. No. 6379. Coronado v. United States. C. A. 5th Cir. Certiorari denied. Reported below : 426 F. 2d 927. 415-649 0 - 72 - 63 958 OCTOBER TERM, 1970 March 8, 1971 401 U. S. No. 6368. Tate v. Daggett, Acting Warden. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 823. No. 6380. Elman v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 332. No. 6391. Tull v. Maryland. C. A. 4th Cir. Certiorari denied. No. 6392. Webb v. United States. C. A. lst Cir. Certiorari denied. Reported below: 433 F. 2d 400. No. 6393. Hilliker v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 436 F. 2d 101. No. 6395. Lacey v. Florida. Dist. Ct. App. Fia., 2d Dist. Certiorari denied. Reported below: 239 So. 2d 628. No. 6396. Quinley v. Illinois. App. Ct. 111., lst Dist. Certiorari denied. Reported below: 127 111. App. 2d 237, 262 N. E. 2d 22. No. 6397. Scott v. Illinois. Sup. Ct. 111. Certiorari denied. Reported below: See 122 111. App. 2d 430, 259 N. E. 2d 338. No. 6399. Kopec v. New Jersey. Sup. Ct. N. J. Certiorari denied. Reported below: 57 N. J. 38, 269 A. 2d 73. No. 6402. Rodriquez-Gastelum v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 429 F. 2d 536. No. 6403. Clark v. New Jersey. Super. Ct. N. J. Certiorari denied. Reported below: 110 N. J. Super. 562, 266 A. 2d 315. No. 6404. McKinney v. Director, Patuxent Institution. Ct. Sp. App. Md. Certiorari denied. ORDERS 959 401 U. S. March 8, 1971 No. 6405. Stokes v. Howard, Reformatory Super-intendent. C. A. 6th Cir. Certiorari denied. No. 6406. Delgado v. Zelkes, Warden. C. A. 2d Cir. Certiorari denied. No. 6407. Dowell v. Salisbury, Correctional Su-perintendent. C. A. 6th Cir. Certiorari denied. No. 6409. Petway v. North Carolina. Sup. Ct. N. C. Certiorari denied. No. 6410. Glass v. United States. C. A. 7th Cir. Certiorari denied. No. 6412. Mulligan v. Johnson, Warden, et al. C. A. 6th Cir. Certiorari denied. No. 6413. Blanchard v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 13. No. 6415. Berry v. Illinois. Sup. Ct. 111. Certiorari denied. Reported below: 46 111. 2d 175, 263 N. E. 2d 487. No. 6416. Martinez v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 436 F. 2d 12. No. 6417. Barefield v. New Mexico. C. A. lOth Cir. Certiorari denied. Reported below: 434 F. 2d 307. No. 6418. Bâtes v. Maryland. Ct. Sp. App. Md. Certiorari denied. No. 6422. Woodson v. Virginia. Sup. Ct. App. Va. Certiorari denied. Reported below: 211 Va. 285, 176 S. E. 2d 818. No. 6424. Hohensee v. Scientific Living, Inc. C. A. 4th Cir. Certiorari denied. No. 6425. Boehme v. Harrison, Warden. C. A. 2d Cir. Certiorari denied. 960 OCTOBER TERM, 1970 March 8, 1971 401 U. S. No. 966. Florida State Board of Dentistry v. Mack. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 862. Mr. Justice White, with whom The Chief Justice joins, dissenting. Respondent, Dr. Roy F. Mack, was a dentist whose license to practice was revoked by the Florida State Board of Dentistry, the petitioner herein. Dr. Mack sought judicial review of the révocation proceedings in the state courts where he urged, without success, “that the procedure before the Dental Board was such that he was de-prived of a fair and impartial trial.” Mack v. Pepper, 192 So. 2d 66, 67 (Fia. Dist. Ct. App. 1966), cert. denied, 201 So. 2d 551 (Fia. 1967). Mack did not seek certiorari in this Court, but instead commenced an action in fédéral district court seeking relief under 42 U. S. C. § 1983. He argued in the District Court that the proceedings before the State Board were unconstitutional, in that the board acted as both prosecutor and judge in his case and further in that the charges against him were not proved beyond a reasonable doubt. The District Court held for Mack on the former, although not the latter, ground. Mack n. Florida State Board of Dentistry, 296 F. Supp. 1259 (SD Fia. 1969). On appeal, the Court of Appeals rejected both grounds advanced by Mack, but nonetheless held in his favor, concluding that the procedure before the board amounted, not to a fair and impartial hearing, but to “an ungoverned confrontation” totally unlike “anything which daims to be an administrative hearing as known to the jurisprudence of this Country.” Mack n. Florida State Board of Dentistry, 430 F. 2d 862, 864 (CA5 1970). The Board of Dentistry seeks certiorari,* contending that the Court of Appeals assumed appellate jurisdiction *Mack has also petitioned for certiorari, which we today deny, No. 963, supra. ORDERS 961 960 White, J., dissenting over the courts of the State of Florida and violated doctrines of res judicata in deciding an issue—the funda-mental fairness of the hearing held by the Board—which had already been decided adversely to Mack in the state courts. The Board cites Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923), and numerous lower court decisions, see, e. g., Paul v. Dade County, 419 F. 2d 10 (CA5 1969), holding that a fédéral court may not détermine constitutional issues already submitted to and determined by a state court. Indeed, Angel v. Bullington, 330 U. S. 183 (1947), which the Board does not cite, indicates that a fédéral court may not even décidé issues which could hâve been but were not submitted to a state court in prior litigation. The issue raised by petitioner is not, however, without difficulty and confusion. In Brown v. Chastain, 416 F. 2d 1012, 1014 (CA5 1969), Judge Rives argued forcefully in dissent that normal rules concerning finality of state court judgments are not always applicable in actions under § 1983, pointing out that three circuits had already opaquely suggested that position. See Jenson v. Oison, 353 F. 2d 825 (CA8 1965) ; O’Connor v. O’Connor, 315 F. 2d 420 (CA5 1963); Hardy v. Northwestern Fédéral Savings & Loan Assn., 102 U. S. App. D. C. 371, 254 F. 2d 70 (1957). It has also been urged that a fédéral court should ignore the usual rules of res judicata when a plaintiff, who was a défendant in state court proceedings and who was thus compelled initially to présent his fédéral claims in a state court, seeks in a fédéral suit to vindicate a specially protected fédéral interest. See Note, Res Judicata: Exclusive Fédéral Jurisdiction and the Effect of Prior State-Court Déterminations, 53 Va. L. Rev 1360 (1967). Whether § 1983 is to serve as the analogue to habeas corpus in civil cases displacing the usual rules of finality seems an important and timely issue having serious state- 962 OCTOBER TERM, 1970 March 8, 1971 401 U. S. fédéral implications. Cf. Younger v. Harris, ante, p. 37; Boyle v. Landry, ante, p. 77; Samuels v. Mackell, ante, p. 66; Dyson v. Stein, ante, p. 200; and Ferez v. Ledesma, ante, p. 82. Accordingly, I dissent from the déniai of certiorari in this case. No. 6430. McNeil v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 277 N. C. 162, 176 S. E. 2d 732. No. 6435. Finney v. Wainwright, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 1001. No. 6436. Mensik v. United States. C. A. 4th Cir. Certiorari denied. No. 945. Militana v. University of Miami. Dist. Ct. App. Fia., 3d Dist. Motions to dispense with printing pétition and supplémentai pétition granted. Motion for leave to file supplémentai pétition granted. Certiorari denied. Reported below: 236 So. 2d 162. No. 1087. Kelly, Judge v. Florida Judicial Qualifications Commission. Sup. Ct. Fia. Certiorari denied. Mr. Justice Douglas and Mr. Justice Marshall are of the opinion that certiorari should be granted. Reported below: 238 So. 2d 565. No. 1090. Berger v. United States; and No. 1211. Levy v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice White took no part in the considération or decision of these pétitions. Reported below : 433 F. 2d 680. No. 1112. King v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Reported below: 430 F. 2d 1177. ORDERS 963 401 U. S. March 8, 1971 No. 6429. Epling, Administratrix v. M. T. Epling Co. C. A. 6th Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Reported below: 435 F. 2d 732. No. 1121. United Steelworkers of America, AFL-CIO, et al. v. Vulcan Materials Co. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice Brennan are of the opinion that certiorari should be granted. Reported below: 430 F. 2d 446. No. 1126. Sarelas v. Board of Managers of the Chicago Bar Assn. Sup. Ct. 111. Motion to dispense with printing pétition granted. Certiorari denied. No. 1146. Stambler et al. v. Dillon et al. C. A. 2d Cir. Motion to dispense with printing pétition granted. Certiorari denied. No. 1138. Mickey et al. v. California. App. Dept., Super. Ct. Cal., County of Los Angeles. Motion to dispense with printing pétition granted. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 1148. Howard v. American Mail Line, Ltd. Sup. Ct. Ore. Certiorari denied. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan are of the opinion that the judgment should be reversed. Rogers v. Missouri Pacific R. Co., 352 U. S. 500. Reported below: 256 Ore. 568, 475 P. 2d 65. No. 5115. LaBatt v. Illinois. App. Ct. 111., lst Dist. Certiorari denied. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the opinion that certiorari should be granted. Reported below: 108 111. App. 2d 18, 246 N. E. 2d 845. 964 OCTOBER TERM, 1970 March 8, 1971 401 U. S. No. 6346. Massey v. Georgia. Sup. Ct. Ga. Certiorari denied. Reported below: 226 Ga. 703, 177 S. E. 2d 79. Mr. Justice Douglas, with whom Mr. Justice Brennan concurs, dissenting. Prior to petitioner’s trial for armed robbery, the trial judge appointed a psychiatrist at petitioner’s request to conduct an examination into petitioner’s competency to stand trial. He apparently was found competent. At trial the State produced evidence of the robbery and an exchange of gunfire. A number of witnesses identified petitioner as the gunman. Petitioner’s defense was that he had taken some pills and had drunk some alcohol prior to the robbery and remembered nothing from the time he took the pills until the time he awoke in the station house. In rebuttal the State called the examining psychiatrist who testified that petitioner had told him a very logical and complété story of what had happened during the afternoon of the robbery. The defense moved to strike the testimony on the ground that the psychia-trist-patient privilège accorded by Georgia law* barred the testimony. The trial judge denied the motion and the Suprême Court of Georgia affirmed, stating: “The psychiatrist appointed by the court for a sanity examination of the défendant may not be regarded as a prosecution witness, but is instead a witness for the court. . . . Hence, the requisite relationship did not exist and it was not error to admit in evidence the psychiatrist’s testimony as to statements made to him by the défendant during the course of *Ga. Code Ann. § 38-418 (Supp. 1970) : “There are certain admissions and communications excluded from considération of public policy. “Among these are: ... 5. Psychiatrist and patient.” ORDERS 965 964 Douglas, J., dissenting his examination of the défendant.” 226 Ga. 703, 704-705, 177 S. E. 2d 79, 81. This case does not présent any issues relating to the question of the quantum of psychiatrie aid necessary to détermine competency to stand trial. Cf. Pâte v. Robinson, 383 U. S. 375; Bishop v. United States, 350 U. S. 961. The issue presented is whether in keeping with the Equal Protection Clause a State can limit the psychiatrist-pa-tient privilège to situations where the psychiatrist is not court appointed. If every court-appointed psychiatrist is only an agent of the State, not a confidant and adviser of the accused, then the potential of using him to deprive the accused of his constitutional rights is great, as évident from Leyra v. Denno, 347 U. S. 556. In that case a state psychiatrist did what police could not do—“[A]n already physically and emotionally exhausted suspect’s ability to resist interrogation was broken to almost trance-like submission by use of the arts of a highly skilled psychiatrist.” Id., at 561. Would not abolishing the attorney-client privilège for indigents who had court-appointed counsel violate both the Sixth and Fourteenth Amendments? Compare Gideon v. Wainwright, 372 U. S. 335, with Douglas v. California, 372 U. S. 353. If so, why is the psychiatrist-patient privilège different? Can the psychiatrist-patient privilège be constitutionally limited to those with a money relationship? Does “the kind of trial a man gets dépend on the amount of money he has”? Griffin v. Illinois, 351 U. S. 12, 19. Had petitioner been able to hire his own psychiatrist, his trial chances would not hâve been as abruptly crushed on rebuttal as they were here. In this posture this case is much stronger than the transcript cases (Griffin, supra; Williams n. Oklahoma City, 395 U. S. 458; Roberts v. 966 OCTOBER TERM, 1970 March 8, 1971 401 U. S. LaVallee, 389 U. S. 40; Long v. District Court of lowa, 385 U. S. 192; Draper v. Washington, 372 U. S. 487); counsel on appeal {Douglas v. California, supra) ; or the fee cases (Burns v. Ohio, 360 U. S. 252; Smith v. Bennett, 365 U. S. 708). Ail of those dealt with post-trial review. Here the alleged déniai of equal protection destroyed whatever chance petitioner had at trial. This is a question which ought to be decided and I would set the case for oral argument. No. 5693. Johnson v. New York. Ct. App. N. Y. Certiorari denied. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the opinion that certiorari should be granted. Reported below: 27 N. Y. 2d 119, 261 N. E. 2d 644. No. 5497. Brown v. United States. C. A. 3d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 423 F. 2d 751. [For earlier order herein, see 400 U. S. 863.] No. 6128. Wright v. Woods. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 1143. No. 6331. Berrier v. United States. C. A. 4th Cir. Motion of Christian Anti-Defamation League for leave to file a brief as amicus curiae denied. Certiorari denied. Reported below: 434 F. 2d 572. Rehearing Denied No. 44. Procunier, Director, California Department of Corrections v. Atchley, 400 U. S. 446; and No. 861. Burtman et al. v. United States, 400 U. S. 1020. Pétitions for rehearing denied. ORDERS 967 401 U. S. March 8, 11, 17, 19, 22, 1971 No. 869. Christopher et al. v. E. I. du Pont de Nemours & Co., Inc., 400 U. S. 1024. Pétition for rehearing denied. Mr. Justice Harlan and Mr. Justice White took no part in the considération or decision of this pétition. March 11, 1971 Dismissal Under Rule 60 No. 1280. Montagna v. United States. C. A. 7th Cir. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Reported below: 432 F. 2d 1119. March 17, 1971 Dismissal Under Rule 60 No. 1233. States Marine Lines, Inc., et al. v. Fédéral Maritime Commission et al. C. A. D. C. Cir. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Reported below: 142 U. S. App. D. C. 4, 439 F. 2d 514. March 19, 1971 Dismissal Under Rule 60 No. 6540. Garelle v. United States. C. A. 2d Cir. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Reported below: 438 F. 2d 366. March 22, 1971 Affirmed on Appeal No. 423. Electronic Industries Assn. v. United States et al. Affirmed on appeal from D. C. D. C. Mr. Justice Douglas took no part in the considération or decision of this case. Reported below: 310F. Supp. 1286. 968 OCTOBER TERM, 1970 March 22, 1971 401 U. S. No. 882. Hadnott et al. v. Amos, Secretary of State of Alabama, et al. Appeal from D. C. M. D. Ala. Motion to dispense with printing jurisdictional statement and other relief granted. Motion of appellee Hildreth to dispense with printing motion to affirm granted. Judgment affirmed. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 320 F. Supp. 107. [For earlier order herein, see 400 U. S. 876.] No. 1215. New Orléans Book Mart, Inc., et al. v. Mitchell, Attorney General, et al. Affirmed on appeal from D. C. M. D. Fia. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 318 F. Supp. 352. No. 6559. Johnson et al. v. Marston et al. Affirmed on appeal from D. C. Ariz. Appeals Dismissed No. 877. Bernier v. Maine et al. Appeal from Sup. Jud. Ct. Me. Motion to dispense with printing jurisdictional statement granted. Appeal dismissed as moot. Reported below: 265 A. 2d 604. No. 1168. Klatex, Inc. v. Mouton, Collector of Revenue. Appeal from Sup. Ct. La. dismissed for want of substantial fédéral question. Mr. Justice Harlan and Mr. Justice Stewart are of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 256 La. 873, 239 So. 2d 365. No. 1218. Hayes v. Lieutenant Governor of Hawaii. Appeal from Sup. Ct. Hawaii dismissed as moot. Reported below: ----Haw.------, 473 P. 2d 872. ORDERS 969 401 U. S. March 22, 1971 No. 1187. Masters v. Executor of Estate of Smythe et al. Appeal from App. Ct. 111., 2d Dist., dis-missed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. No. 1190. National Life & Accident Insurance Co. v. Notter. Appeal from Ct. Civ. App. Tex., lOth Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Reported below: 455 S. W. 2d 322. No. 6144. Quinn v. California. Appeal from Ct. App. Cal., 3d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. No. 6457. Anderson et ux. v. Secretary of the Treasury et al. Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. No. 6476. Ford et al. v. California. Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. No. 1225. Reptile Products Assn., Inc. v. Diamond, COMMISSIONER OF DEPARTMENT OF ENVIRONMENTAL Conservation of New York, et al. Appeal from Ct. App. N. Y. dismissed for want of substantial fédéral question. Reported below: 27 N. Y. 2d 182, 264 N. E. 2d 118. Miscellaneous Orders No.------. Doe et al. v. Scott, Attorney General of Illinois, et al. Motion to shorten time to docket appeal denied. 970 OCTOBER TERM, 1970 March 22, 1971 401 U. S. No.-------. Buckley et al. v. Johnson et al. Application for stay of order of United States District Court for the District of Connecticut entered in Civil Action No. 13432 on November 20, 1970, which application was presented to Mr. Justice Harlan, and by him referred to the Court, granted, and said order hereby stayed pending timely filing of appeal in this Court. Should appeal be so timely filed, stay will remain in effect pending its disposition. In event appeal is dismissed, stay to terminale automatically. Should jurisdiction be noted or postponed, stay to remain in effect pending issuance of judgment of this Court. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Harlan are of the opinion that stay should be denied. Motion of Rita Johnson et al. to expedite appeal denied. No. ------. Donofrio v. United States. C. A. 5th Cir. Application for bail presented to Mr. Justice Black, and by him referred to the Court, denied. No. ------. Thompson v. Sélective Service System Local Board No. 28 et al. C. A. 5th Cir. Application for stay of induction presented to Mr. Justice Black, and by him referred to the Court, denied. Mr. Justice Douglas and Mr. Justice Stewart are of the opinion that the stay should be granted. No. 31, Orig. Utah v. United States. Exceptions to Report of Spécial Master set for oral argument in due course. Mr. Justice Marshall took no part in the considération or decision of this matter. [For earlier actions herein, see, e. g., ante, p. 903.] No. 362. McGee v. United States. C. A. 2d Cir. [Certiorari granted, 400 U. S. 864.] Motion of Richard K. LeGrande for leave to proceed in forma pauperis granted. Motion for authorization for payment of counsel for préparation of brief as amicus curiae denied. ORDERS 971 401 U. S. March 22, 1971 No. 409. Board of Education of Little Rock School District et al. v. Clark et al. C. A. 8th Cir. Application for stay restraining petitioners from con-tinuing any construction at Henderson Junior High School in Little Rock, Arkansas, pending final disposition of ail issues presented in case No. 20485 now pending before the United States Court of Appeals for the Eighth Circuit, which application was presented to Mr. Justice Black, and by him referred to the Court, granted. Mr. Justice Blackmun took no part in the considération or decision of this application. Reported below: 426 F. 2d 1035. No. 557. United States v. International Miner-als & Chemical Corp. Certified appeal from S. D. Ohio. [Probable jurisdiction noted, 400 U. S. 990.] Motion of the Solicitor General for leave for John F. Dienelt to présent oral argument pro hac vice granted. No. 1081. Whitcomb, Governor of Indiana, et al. v. Affeldt et ux. Appeal from D. C. N. D. Ind. Application for stay of judgment of District Court presented to Mr. Justice Marshall, and by him referred to the Court, denied. Reported below: 319 F. Supp. 69. No. 5586. Bell v. Burson, Director, Department of Public Safety of Georgia. Ct. App. Ga. [Certiorari granted, 400 U. S. 963.] Motion of Elizabeth Roediger Rindskopf for leave to argue pro hac vice on behalf of petitioner granted. No. 1178. Piper v. United States District Court FOR THE EaSTERN DISTRICT OF TENNESSEE ET AL.; No. 6329. Rabb v. United States; No. 6477. Sorrells v. United States; and No. 6539. McCray v. Maryland. Motions for leave to file pétitions for writs of mandamus denied. 972 OCTOBER TERM, 1970 March 22, 1971 401 U. S. No. 6263. Norman v. Carlson, Director of Bureau of Prisons, et al.; No. 6450. Coakley v. Perini, Correctional Super-INTENDENT, ET AL.; No. 6462. McClindon v. Field, Men’s Colony SUPERINTENDENT, ET AL.; No. 6509. In re Ortega; No. 6513. Taylor v. California et al.; No. 6580. Hood v. Tennessee et al.; and No. 6639. James v. Wainwright, Corrections Director. Motions for leave to file pétitions for writs of habeas corpus denied. No. 6448. Kazubowski v. Johnson, Sheriff. Motion for leave to file pétition for writ of habeas corpus and other relief denied. No. 6377. Guy v. United States. Motion for leave to file pétition for writ of mandamus and/or prohibition denied. No. 1220. Dowdy v. Thomsen, U. S. District Judge. Motion for leave to file pétition for writ of prohibition and/or mandamus denied. Probable Jurisdiction Postponed No. 1232. Roudebush v. Hartke et al. ; and No. 1236. Sendak, Attorney General of Indiana v. Hartke et al. Appeals from D. C. S. D. Ind. Further considération of question of jurisdiction postponed to hearing of cases on the merits. Cases Consolidated and a total of one hour allotted for oral argument. Reported below: 321 F. Supp. 1370. Certiorari Granted—Vacated and Remanded. (See No. 1059, ante, p. 486.) Certiorari Granted No. 883. United States v. Générés et vir. C. A. 5th Cir. Certiorari granted. Reported below: 427 F. 2d 279. ORDERS 973 401 U. S. March 22, 1971 No. 1159. SuPERINTENDENT OF INSURANCE OF New York v. Bankers Life & Casualty Co. et al. C. A. 2d Cir. Certiorari granted. Reported below: 430 F. 2d 355. No. 1162. Securities and Exchange Commission v. Medical Committee for Human Rights. C. A. D. C. Cir. Certiorari granted. Mr. Justice Douglas took no part in the considération or decision of this pétition. Reported below: 139 U. S. App. D. C. 226, 432 F. 2d 659. No. 1184. National Labor Relations Board v. Plasterers’ Local Union No. 79, Operative Plasterers’ & Cement Masons’ International Assn., AFD-CIO, et al.; and No. 1231. Texas State Tile & Terrazzo Co., Inc., et al. v. Plasterers’ Local Union No. 79, Operative Plasterers’ & Cement Masons’ International Assn., AFI^CIO, et al. C. A. D. C. Cir. Motion of Building & Construction Trades Department, AFL^CIO, for leave to file a brief as amicus curiae granted. Certiorari granted. Cases Consolidated and a total of one hour al-lotted for oral argument. Reported below: 142 U. S. App. D. C. 146, 440 F. 2d 174. No. 5515. Humphrey v. Cad y, Warden. C. A. 7th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. No. 5703. Jackson v. Indiana. Sup. Ct. Ind. Motion for leave to proceed in forma pauperis and certiorari granted. Reported below:-----Ind.----, 255 N. E. 2d 515. No. 6073. Britt v. North Carolina. Ct. App. N. C. Motion for leave to proceed in forma pauperis and certiorari granted. Reported below: 8 N. C. App. 262, 174 S. E. 2d 69. 415-649 0 - 72 - 64 974 OCTOBER TERM, 1970 March 22, 1971 401 U. S. Certiorari Denied. (See also Nos. 1187, 1190, 6144, 6457, and 6476, supra.) No. 878. Parkin v. Florida. Sup. Ct. Fia. Certiorari denied. Reported below: 238 So. 2d 817. No. 1154. Halde v. Superior Court of California, County of Santa Barbara. Sup. Ct. Cal. Certiorari denied. No. 1156. Neuman et al. v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 141 U. S. App. D. C. 131, 436 F. 2d 285. No. 1157. Kauffman et al. v. Dreyfus Fund, Inc., et al. C. A. 3d Cir. Certiorari denied. Reported below: 434 F. 2d 727. No. 1158. Abbett, Sommer & Co., Inc., et al. v. Securities and Exchange Commission. C. A. D. C. Cir. Certiorari denied. No. 1160. DeVal Aerodynamics, Inc., et al. v. Eulo. C. A. 3d Cir. Certiorari denied. Reported below: 430 F. 2d 325. No. 1161. Garner et al. v. First American Life Insurance Co. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 1093. No. 1167. Hester et al. v. Wyche. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 791. No. 1169. G. P. D., Inc. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Reported below: 430 F. 2d 963. No. 1170. Farkas v. Texas Instruments, Inc. C. A. Ist Cir. Certiorari denied. Reported below: 429 F. 2d 849. ORDERS 975 401 U. S. March 22, 1971 No. 1172. Security Mutual Casualty Co. v. First National Bank of Cushing et al. C. A. lOth Cir. Certiorari denied. Reported below: 431 F. 2d 1025. No. 1173. Peacock Records, Inc., et al. v. Checker Records, Inc., et al. C. A. 7th Cir. Certiorari denied. Reported below: 430 F. 2d 85. No. 1174. United Transportation Union, Local Lodge No. 31 v. St. Paul Union Depot Co. C. A. 8th Cir. Certiorari denied. Reported below: 434 F. 2d 220. No. 1176. Barzie v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 433 F. 2d 984. No. 1177. Bass, Administrator v. Texas Power & Light Co. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 763. No. 1180. Adams Potato Chips, Inc. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Reported below: 430 F. 2d 90. No. 1181. Turzynski v. Libert. App. Ct. 111., lst Dist. Certiorari denied. Reported below: 122 111. App. 2d 352, 259 N. E. 2d 295. No. 1185. Firestone Tire & Rubber Co. v. General Tire & Rubber Co. C. A. 6th Cir. Certiorari denied. Reported below: 431 F. 2d 1199. No. 1188. Southern Pacific Transportation Co. v. Butler. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 77. No. 1192. New York Central Railroad Co., now Penn Central Transportation Co. v. Fisher, Admin-istratrix. C. A. 2d Cir. Certiorari denied. No. 1198. Lenit et al. v. Powers et al. Sup. Ct. 111. Certiorari denied. 976 OCTOBER TERM, 1970 March 22, 1971 401 U. S. No. 1196. Levering v. Levering. Sup. Ct. Del. Certiorari denied. Reported below: ---- Del. ----, 271 A. 2d 42. No. 1200. Irvin Industries, Inc. v. American Harley Corp. Ct. App. N. Y. Certiorari denied. Reported below: 27 N. Y. 2d 168, 263 N. E. 2d 552. No. 1201. Tucker v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 1017. No. 1202. Board of Trustées of the Social Secu-rity Fund of the Distillery, Rectifying, Wine & Allied Workers International Union of America, AFL-CIO v. Farrell. Sup. Ct. Pa. Certiorari denied. Reported below: 440 Pa. 255, 269 A. 2d 890. No. 1203. McGee et al. v. Horn. C. A. 9th Cir. Certiorari denied. Reported below: 436 F. 2d 1375. No. 1206. Vaught v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 124. No. 1208. Rodriguez-Romero v. Immigration and Naturalization Service. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 1022. No. 1210. Technical Development Corp. et al. v. Beckman Instruments, Inc. C. A. 7th Cir. Certiorari denied. Reported below: 433 F. 2d 55. No. 1214. Wood v. Johnston Bronze Co. Sup. Ct. Ohio. Certiorari denied. No. 1217. Local 825, International Union of Op-ERATING EnGINEERS, AFL-CIO, ET AL. V. NATIONAL LABOR Relations Board. C. A. 3d Cir. Certiorari denied. Reported below: 430 F. 2d 1225. No. 1235. DeAngelis et al. v. United States. C. A. 2d Cir. Certiorari denied. ORDERS 977 401 U. S. March 22, 1971 No. 1221. Cataldo v. United States; and No. 6212. Lucas, aka Lucakos et al. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 433 F. 2d 38. No. 1222. Irving J. Dorfman Co., Inc. v. Thomas Wilson & Co., Inc. C. A. 2d Cir. Certiorari denied. Reported below: 433 F. 2d 409. No. 1223. Cooper v. United States. C. A. 6th Cir. Certiorari denied. No. 1244. Foley et ux. v. Comptroller of the Treasury of Maryland. Ct. App. Md. Certiorari denied. Reported below: 259 Md. 330, 269 A. 2d 807. No. 5924. Shorter v. Florida. Sup. Ct. Fia. Certiorari denied. No. 5954. Nelson v. West Virginia. Intermediate Ct. W. Va., Kanawha County. Certiorari denied. No. 6099. Hogan v. Mississippi. Sup. Ct. Miss. Certiorari denied. Reported below: 235 So. 2d 704. No. 6111. Appling v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 6113. Jones et al. v. Sullivan et al. C. A. 6th Cir. Certiorari denied. Reported below: 433 F. 2d 576. No. 6174. Lowther v. Salisbury, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. No. 6197. Stuller v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. Reported below: 10 Cal. App. 3d 582, 89 Cal. Rptr. 158. No. 6335. Leano v. United States. C. A. 9th Cir. Certiorari denied. No. 6338. Smith v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 1266. 978 OCTOBER TERM, 1970 March 22, 1971 401 U. S. No. 6343. Harris v. Tennessee. Ct. Crim. App. Tenn. Certiorari denied. Reported below: ------- Tenn. App. ----, 457 S. W. 2d 370. No. 6353. Bujese v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 46. No. 6366. Butler v. United States. C. A. lst Cir. Certiorari denied. Reported below: 434 F. 2d 243. No. 6373. Gruca v. Secretary of the Army. C. A. D. C. Cir. Certiorari denied. Reported below: 141 U. S. App. D. C. 85, 436 F. 2d 239. No. 6411. Hosmer v. United States. C. A. lst Cir. Certiorari denied. Reported below: 434 F. 2d 209. No. 6419. Stead v. United States. C. A. 8th Cir. Certiorari denied. No. 6423. Monteiro v. United States. C. A. lst Cir. Certiorari denied. No. 6432. DePugh v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 434 F. 2d 548. No. 6434. Lowery v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 436 F. 2d 1171. No. 6439. Battaglia v. Civil Service Commission. Sup. Ct. App. Va. Certiorari denied. No. 6441. Tilli v. County of Northampton et al. C. A. 3d Cir. Certiorari denied. No. 6443. Gardner v. Shearson, Hammill & Co. C. A. 5th Cir. Certiorari denied. No. 6444. Koshiol v. Illinois. Sup. Ct. 111. Certiorari denied. Reported below: 45 111. 2d 573, 262 N. E. 2d 446. No. 6449. Ericksen v. United States. C. A. 9th Cir. Certiorari denied. ORDERS 979 401 U. S. March 22, 1971 No. 6446. James v. Zelker, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. Reported below: 431 F. 2d 708. No. 6454. Grady v. Field, Men’s Colony Superintendent. C. A. 9th Cir. Certiorari denied. No. 6455. Minkel v. Minnesota. Sup. Ct. Minn. Certiorari denied. No. 6460. Price v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 6461. Parrott v. United States. C. A. lOth Cir. Certiorari denied. Reported below: 434 F. 2d 294. No. 6463. Cunningham v. Mancusi, Warden. C. A. 2d Cir. Certiorari denied. No. 6465. Dalto v. Richardson, Secretary of Health, Education, and Welfare. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 1018. No. 6466. Standley v. Conte. Sup. Ct. Wash. Certiorari denied. No. 6468. Fahrig v. Young et al. C. A. 6th Cir. Certiorari denied. No. 6473. Wright v. United States. C. A. 7th Cir. Certiorari denied. No. 6478. Jones v. Director, Patuxent Institution. Ct. Sp. App. Md. Certiorari denied. No. 6480. Mueller v. Craven, Warden. Sup. Ct. Cal. Certiorari denied. No. 6487. Neal v. United States. C. A. lOth Cir. Certiorari denied. Reported below: 438 F. 2d 301. No. 6488. Botica v. Brantley, Warden. Sup. Ct. 111. Certiorari denied. 980 OCTOBER TERM, 1970 March 22, 1971 401 U. S. No. 6489. Lipscomb v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 795. No. 6490. Hunter v. Locher et al. C. A. 6th Cir. Certiorari denied. No. 6492. McClary v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 6493. Ward v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 6494. Gearing v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 1038. No. 6498. Vital v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 6501. Springle v. Zelker, Correctional Super-intendent. C. A. 2d Cir. Certiorari denied. Reported below: 435 F. 2d 1380. No. 6503. Sellers v. Dixilyn Corp. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 446. No. 6504. Salvi v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 6507. Darby v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 6510. COOKMEYER V. LOUISIANA DEPARTMENT OF Highways. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 386. No. 6522. Tracy et ux. v. United States et al. C. A. lOth Cir. Certiorari denied. No. 6524. Strong v. California. C. A. 9th Cir. Certiorari denied. No. 6537. Stevenson v. Mancusi, Warden. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. ORDERS 981 401 U. S. March 22, 1971 No. 6551. Desonia v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 1290. No. 6587. Victor v. New Jersey. Super. Ct. N. J. Certiorari denied. Reported below: See 57 N. J. 210, 271 A. 2d 5. No. 6626. Di Giangiemo v. New York. Ct. App. N. Y. Certiorari denied. No. 1102. Di Giamberardino v. New Jersey. Super. Ct. N. J. Motion to dispense with printing pétition granted. Certiorari denied. No. 1204. Haifley v. United States. C. A. lOth Cir. Motion to dispense with printing pétition granted. Certiorari denied. Reported below: 432 F. 2d 1064. No. 1134. Noonan v. United States. C. A. 3d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 434 F. 2d 582. No. 1163. Dash et al. v. Commanding General, Fort Jackson, South Carolina, et al. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 429 F. 2d 427. No. 1179. Sellers et al. v. Regents of the Univer-sity of California. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 493. No. 1186. Mescalero Apache Tribe et al. v. Russell, Acting Secretary of the Interior. C. A. lOth Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 956. 982 OCTOBER TERM, 1970 March 22, 1971 401 U. S. No. 1212. Chahoc et al. v. Hunt Shipyard, a Division of Hunt Tool Co., et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 431 F. 2d 576. No. 1224. Daniell v. United States. C. A. lst Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 435 F. 2d 834. No. 6089. Grohman v. Maryland. Ct. App. Md. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 258 Md. 552, 267 A. 2d 193. No. 6538. Aiken v. Georgia. Sup. Ct. Ga. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 226 Ga. 840, 178 S. E. 2d 202. No. 1147. Weissman v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the opinion that certiorari should be granted. Reported below: 434 F. 2d 175. No. 1164. Yahr et al. v. Resor, Secretary of the Army, et al. C. A. 4th Cir. Certiorari denied. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan are of the opinion that certiorari should be granted. Reported below: 431 F. 2d 690. No. 1171. Los Angeles Free Press, Inc. v. City of Los Angeles et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan are of the opinion that certiorari should be granted. Reported below: 9 Cal. App. 3d 448, 88 Cal. Rptr. 605. ORDERS 983 401 U. S. March 22, 1971 No. 1213. Schipani v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice Brennan are of the opinion that certiorari should be granted. Mr. Justice Marshall took no part in the considération or decision of this pétition. Reported below: 435 F. 2d 26. No. 1238. Mancusi, Warden, et al. v. Martinez. C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 443 F. 2d 921. No. 5999. Howard v. Craven, Warden, et al. Super. Ct. Cal., County of Sacramento. Certiorari and/ or habeas corpus denied. No. 6110. Magezis et al. v. California. Sup. Ct. Cal. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas would deny pétition on ground that state remedies hâve not been exhausted. Reported below: 3 Cal. 3d 54, 473 P. 2d 353. No. 6239. Theriault v. Daggett, Acting Warden, et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. No. 6247. Theriault v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. No. 6426. Taylor v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. Reported below: 428 F. 2d 515. No. 6279. Falgout v. Patterson, Warden. C. A. lOth Cir. Application for bail presented to Mr. Justice White, and by him referred to the Court, denied. Certiorari denied. 984 OCTOBER TERM, 1970 March 22, 29, 1971 401 U. S. No. 6433. Moore v. Indiana et al. C. A. 7th Cir. Motion for leave to amend pétition for certiorari granted. Certiorari denied. No. 6525. Dexter v. Indiana. C. A. 7th Cir. Motion for leave to amend pétition for certiorari granted. Certiorari denied. No. 6452. Lucas v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of this pétition. Rehearing Denied No. 5796. Greene v. United States, 400 U. S. 965. Pétition for rehearing denied. No. 806. United Services Automobile Assn. v. United States et al., 400 U. S. 992; and No. 6032. Williams v. Neil, Warden, 400 U. S. 1011. Motions for leave to file pétitions for rehearing denied. March 29, 1971 Affirmed on Appeal No. 31. Cato et al. v. Georgia et al. Affirmed on appeal from D. C. N. D. Ga. Stejanelli v. Minard, 342 U. S. 117, and Perez v. Ledesma, ante, p. 82. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. Reported below: 302 F. Supp. 1143. No. 112. LeClair et al. v. O’Neil et al. Affirmed on appeal from D. C. Mass. Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Mr. Justice Douglas would note probable jurisdiction and set case for oral argument. Reported below: 307 F. Supp. 621. ORDERS 985 401 U. S. March 29, 1971 No. 217. Johnnie Reb’s Book & Gard Shop et al. v. Slaton et al. Affirmed on appeal from D. C. N. D. Ga. Younger v. Harris, ante, p. 37; and Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Mr. Justice Douglas dissents from affirmance. Reported below: See 226 Ga. 171, 175 S. E. 2d 539. No. 5462. Porter v. Kimzey et al. Affirmed on appeal from D. C. N. D. Ga. Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Mr. Justice Douglas dissents from affirmance. Reported below: 309 F. Supp. 993. No. 5952. Geiger v. Jenkins et al. Affirmed on appeal from D. C. N. D. Ga. Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Reported below: 316 F. Supp. 370. No. 236. Campbell, Commissioner of Agriculture of Georgia, et al. v. Lewis. Affirmed on appeal from C. A. 5th Cir. Campbell v. Hussey, 368 U. S. 297. Mr. Justice Black and Mr. Justice Harlan are of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below : 425 F. 2d 77. No. 1250. Starns et al. v. Malkerson et al. Affirmed on appeal from D. C. Minn. Mr. Justice White is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 326 F. Supp. 234. No. 5412. Brown v. Fallis, District Attorney of Tulsa County, et al. Appeal from D. C. N. D. Okla. Motion of appellant for leave to proceed in forma pau-peris granted. Judgment affirmed, Younger v. Harris, ante, p. 37. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 311 F. Supp. 548. 986 OCTOBER TERM, 1970 March 29, 1971 401 U. S. No. 1266. Bartlett et al. v. United States et al. Affirmed on appeal from D. C. S. D. N. Y. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: See 297 F. Supp. 1061. Appeals Dismissed No. 1275. Oriental Boulevard Co. et al. v. Heller, COMMISSIONER OF DEPARTMENT OF AlR POLLUTION CON-trol, et al. Appeal from Ct. App. N. Y. dismissed for want of substantial fédéral question. Reported below: 27 N. Y. 2d 212, 265 N. E. 2d 72. No. 1282. Malinou v. Board of Elections of Rhode Island et al. Appeal from Sup. Ct. R. I. dismissed for want of substantial fédéral question. Reported below: ---R. I.-----, 271 A. 2d 798. No. 1284. Balc v. Parsons et al. Appeal from Sup. Ct. Ohio. Motion to dispense with printing jurisdictional statement granted. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. No. 6442. Hernandez v. Catherwood, Industrial Commissioner of New York. Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Reported below: 27 N. Y. 2d 811, 264 N. E. 2d 357. Vacated and Remanded on Appeal No. 90. Barlow et al. v. Gallant et al. Appeal from D. C. W. D. Tex. Motion of appellees Morris and Walters for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration in light of Younger v. Harris, ante, p. 37. Mr. Justice Douglas would note probable jurisdiction and affirm the judgment. ORDERS 987 401 U. S. March 29, 1971 No. 43. Shevin et al. v. Lazarus. Appeal from D. C. S. D. Fia. Motion of appellee for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration in light of Younger v. Harris, ante, p. 37. Mr. Justice Douglas would note probable jurisdiction and affirm the judgment. Reported below: 301 F. Supp. 266. [For earlier order herein, see 400 U. S. 924, sub nom. Faircloth v. Lazarus.] No. 102. Goodman et al. v. Wheeler et al. Appeal from D. C. W. D. N. C. Judgment vacated and case remanded for reconsideration in light of Younger v. Harris, ante, p. 37. Mr. Justice Douglas would note probable jurisdiction and affirm the judgment. Reported below: 306 F. Supp. 58. No. 116. McGrew et al. v. City of Jackson et al. Appeal from D. C. S. D. Miss. Judgment vacated and case remanded for reconsideration in light of Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 307 F. Supp. 754. No. 134. Hosey et al. v. City of Jackson et al. Appeal from D. C. S. D. Miss. Judgment vacated and case remanded for reconsideration in light of Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 309 F. Supp. 527. No. 484. Byrne, District Attorney of Suffolk County v. P. B. I. C., Inc., et al. Appeal from D. C. Mass. Judgment vacated and case remanded to consider question of mootness. Reported below: 313 F. Supp. 757. 988 OCTOBER TERM, 1970 March 29, 1971 401 U. S. No. 844. ABC Books, Inc., et al. v. Benson, Commissioner of Revenue of Tennessee, et al. Appeal from D. C. M. D. Tenn. Judgment vacated and case remanded for reconsideration in light of Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 315 F. Supp. 695. No. 5164. Dyches v. Ryan et al. Appeal from D. C. S. D. Ga. Motion of appellant for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration in light of Younger n. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez n. Mackell, ante, p. 66. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. No. 888. Board of Public Instruction of Dade County v. Banks. Appeal from D. C. S. D. Fia. Judgment vacated and case remanded so that a fresh decree may be entered from which a timely appeal may be taken to the United States Court of Appeals for the Fifth Circuit if appellant so chooses. Reported below: 314 F. Supp. 285. No. 5013. Rollins et al. v. Shannon. Appeal from D. C. E. D. Mo. Motion of appellants for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration in light of Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66; and Boyle v. Landry, ante, p. 77. Mr. Justice Douglas concurs on basis of his separate opinion in Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 74. Reported below: 292 F. Supp. 580. ORDERS 989 401 U. S. March 29, 1971 No. 289. Wade, District Attorney of Dallas County v. Buchanan et al. ; and No. 290. Buchanan et al. v. Wade, District Attorney of Dallas County. Appeals from D. C. N. D. Tex. Motion of North American Conférence of Hémophile Organizations for leave to file a brief as amicus curiae in No. 290 granted. Judgment vacated and cases remanded for reconsideration in light of Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez n. Mackell, ante, p. 66. Mr. Justice Douglas is of the opinion that No. 289 should be dismissed as untimely filed and that probable jurisdiction should be noted in No. 290. Reported below: 308 F. Supp. 729. Certiorari Granted—Reversed or Vacated, and Remanded No. 20. Wright et al. v. City of Montgomery, Ala-bama, et al. C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Mr. Justice Douglas is of the opinion that certiorari should be granted and judgment reversed. Reported below: 406 F. 2d 867. No. 5539. Embry et al. v. Allen et al. C. A. 5th Cir. Motion of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, and judgment reversed and remanded. Younger v. Harris, ante, p. 37; Samuels v. Mackell, and Fernandez v. Mackell, ante, p. 66. Mr. Justice Stewart and Mr. Justice Blackmun are of the opinion that certiorari should be granted, judgment vacated, and case remanded for reconsideration in light of above-cited cases. Mr. Justice Douglas dis-sents from reversai. Reported below: 422 F. 2d 1158. 415-649 0 - 72 - 65 990 OCTOBER TERM, 1970 March 29, 1971 401 U. S. No. 500. Ferdon et al. v. Demich, Inc., et al. C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of Perez v. Ledesma, ante, p. 82. Mr. Justice Douglas is of the opinion that the judgment should be affirmed. Reported below: 426 F. 2d 643. Miscellaneous Orders No. ------. Gregory et al. v. Tarr, National Di- rector OF SELECTIVE SERVICE SYSTEM, ET AL. C. A. 6th Cir. Application for recall of mandate and stay of mandate of United States Court of Appeals for the Sixth Circuit heretofore granted by Mr. Justice Stewart pending further order of Court, and by him referred to the Court, denied. Mr. Justice Douglas would extend stay granted by Mr. Justice Stewart. Reported below: 436 F. 2d 513. No. 1028. United States v. Campos-Serrano. C. A. 7th Cir. [Certiorari granted, ante, p. 936.] Motions of respondent for leave to proceed in forma pauperis and for appointment of counsel granted. It is ordered that John J. Cleary, Esquire, of Chicago, Illinois, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case. No. 1262. Wyman, Commissioner of Social Services of New York, et al. v. Boddie et al. Appeal from C. A. 2d Cir. The Solicitor General is invited to file a brief expressing the views of the United States. Reported below: 434 F. 2d 1207. No. 1269. Swank, Director, Illinois Department of Public Aid v. Rodriguez et al. Appeal from D. C. N. D. 111. The Solicitor General is invited to file a brief expressing the views of the United States. Reported below: 318 F. Supp. 289. ORDERS 991 401 U. S. March 29, 1971 No. 1184. National Labor Relations Board v. Plasterers’ Local Union No. 79, Operative Plasterers’ & Cement Masons’ International Assn., AFL-CIO, et al.; and No. 1231. Texas State Tile & Terrazzo Co., Inc., et al. v. Plasterers’ Local Union No. 79, Operative Plasterers’ & Cement Masons’ International Assn., AFL-CIO, et al. C. A. D. C. Cir. [Certiorari granted, ante, p. 973.] Motion of Laborers’ International Union of North America, AFL-CIO, for leave to file a brief as amicus curiae in No. 1184 granted. Motion of Associated General Contractors of America et al. for leave to file a brief as amici curiae granted. No. 6553. Jefferson et al. v. Hackney, Commis-sioner of Public Welfare, et al. Appeal from D. C. N. D. Tex. The Solicitor General is invited to file a brief expressing the views of the United States. No. 5275. Austin v. United States District Court for the Middle District of Florida et al. Motion for leave to file pétition for writ of prohibition and/or man-damus denied. Mr. Justice Douglas took no part in the considération or decision of this motion. Probable Jurisdiction Noted or Postponed No. 538. Swarb et al. v. Lennox et al. Appeal from D. C. E. D. Pa. Motion to dispense with printing jurisdictional statement granted. Probable jurisdiction noted. Reported below: 314 F. Supp. 1091. No. 814. Socialist Labor Party et al. v. Gilligan, Governor of Ohio, et al.; and No. 1104. Gilligan, Governor of Ohio, et al. v. Sweetenham et al. Appeals from D. C. S. D. Ohio. Probable jurisdiction noted. Cases Consolidated and a total of one hour allotted for oral argument. Reported below: 318 F. Supp. 1262. 992 OCTOBER TERM, 1970 March 29, 1971 401 U. S. No. 1288. Miller v. California. Appeal from App. Dept., Super. Ct. Cal., County of Orange. Probable jurisdiction noted. No. 1292. Moose Lodge No. 107 v. Irvis et al. Appeal from D. C. M. D. Pa. Probable jurisdiction postponed to hearing of case on the merits. Reported below: 318 F. Supp. 1246. Certiorari Granted No. 127. D. H. Overmyer Co., Inc., of Ohio et al. v. Frick Co. Ct. App. Ohio, Lucas County. Certiorari granted. No. 1278. Fédéral Trade Commission v. Sperry & Hutchinson Co. C. A. 5th Cir. Certiorari granted. Reported below: 432 F. 2d 146. No. 6046. Lego v. Twomey, Warden. C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to Question 1 as set forth in the pétition, which reads as follows: “1. Was the Illinois evidentiary rule for determining the voluntariness of extra-judicial confessions so highly unreliable as to contravene the Appellant’s Fourteenth Amendment Due Process rights and, necessarily, deprive the Appellant of the Fifth Amendment right against self-incrimination because: “(a) The trial judge in his preliminary détermination, removed from the jury, need not find the confession voluntary beyond reasonable doubt when judging its admissibility as evidence for the jury; and, “(b) The défendant, as a matter of Illinois law, was precluded from having the jury instructed upon, and to détermine the voluntariness of the confession along with the other factual issues upon which the jury verdict must rest?” ORDERS 993 401 U. S. March 29, 1971 No. 1183. Amalgamated Clothing Workers of America, AFL^CIO v. Prepmore Apparel, Inc., et al. C. A. 5th Cir. Certiorari granted. Reported below: 431 F. 2d 1004. No. 1285. United States v. Bass. C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Reported below: 434 F. 2d 1296. Certiorari Denied. (See also Nos. 1284 and 6442, supra.) No. 1205. Ford v. Wisconsin Real Estate Exam-ining Board. Sup. Ct. Wis. Certiorari denied. Reported below: 48 Wis. 2d 91, 179 N. W. 2d 786. No. 1237. Wolfe v. United States; and No. 6431. Holstein v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 144. No. 1240. DiBartolo v. United States; No. 6485. Paniccioli v. United States; and No. 6486. Fiadini v. United States. C. A. 2d Cir. Certiorari denied. No. 1241. Kramer v. Better Business Bureau of Los Angeles, Ltd., et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 1247. Meagher v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: 439 Pa. 532, 266 A. 2d 684. No. 1251. Southland Inc. v. Cox Enterprises, Inc., et al. Sup. Ct. Ga. Certiorari denied. Reported below: 226 Ga. 794 and 798, 177 S. E. 2d 653 and 655. No. 1258. United Aircraft Corp. v. National Labor Relations Board et al. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 1198. 994 OCTOBER TERM, 1970 March 29, 1971 401 U. S. No. 1256. Stifel v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 433 F. 2d 431. No. 1260. State of Israël v. The Nili et al. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 242. No. 1261. Altman v. Stockton et al. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 946. No. 1263. New York Stock Exchange v. Thill Securities Corp. et al. C. A. 7th Cir. Certiorari denied. Reported below: 433 F. 2d 264. No. 1264. Gibbs v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 621. No. 1268. Delano, Inc. v. Arnold. Sup. Ct. 111. Certiorari denied. Reported below: 46 111. 2d 492, 263 N. E. 2d 830. No. 1271. Davis et al. v. News et al. C. A. 2d Cir. Certiorari denied. No. 1283. Virden v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 1205. No. 6184. McGuane v. Chenango Court, Inc. C. A. 2d Cir. Certiorari denied. Reported below: 431 F. 2d 1189. No. 6225. Richeson v. Hornstein, dba Rogers Dis-countland, et al. Cir. Ct. Maçon County, 111. Certiorari denied. No. 6305. Brewer v. Cox, Penitentiary Superin-tendent. C. A. 4th Cir. Certiorari denied. Reported below: 431 F. 2d 1371. No. 6311. Mitchell v. Cardwell, Warden. Sup. Ct. Ohio. Certiorari denied. Reported below: 24 Ohio St. 2d 30, 262 N. E. 2d 862. ORDERS 995 401 U. S. March 29, 1971 No. 6471. Bowles v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 142 U. S. App. D. C. 26, 439 F. 2d 536. No. 6475. Gômez v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 434 F. 2d 653. No. 6479. Williams v. United States. C. A. 2d Cir. Certiorari denied. No. 6481. Williams v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 642. No. 6483. Jones v. United States. C. A. 4th Cir. Certiorari denied. No. 6496. Harrington v. United States. C. A. D. C. Cir. Certiorari denied. No. 6516. Young v. United States. C. A. lOth Cir. Certiorari denied. Reported below: 433 F. 2d 626. No. 6528. Taylor v. Johnson, Sheriff. Sup. Ct. 111. Certiorari denied. Reported below: 47 111. 2d 103, 264 N. E. 2d 198. No. 6541. Hickman v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 6544. Antonson v. Virginia A. B. C. Board et al. Sup. Ct. App. Va. Certiorari denied. No. 6545. Lomax v. United States. C. A. 4th Cir. Certiorari denied. No. 6547. Zenor v. Vogt et al. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 189. No. 6548. Eaton v. United States. C. A. 8th Cir. Certiorari denied. No. 6552. Cordle v. Moynahan, Judge. C. A. 6th Cir. Certiorari denied. 996 OCTOBER TERM, 1970 March 29, 1971 401 U. S. No. 1166. Cook v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1093. Mr. Justice Douglas, with whom Mr. Justice Brennan concurs, dissenting. I would grant the pétition on the issue of electronic surveillance. In this criminal prosecution counsel for the defense asked if the Government had obtained any evidence by means of listening devices or electronic eavesdropping.1 The prosecutor would say only that “no illégal eavesdropping devices were used.”2 He would not state whether any eavesdropping equipment had been used.3 The trial judge refused to order the disclosure.4 On appeal, petitioner contended that the Government must disclose whether there had been electronic surveillance, regardless of its views on the legality. The legality 1 Defense counsel gave as his reason: “For example, on cross examination there was some question about a conversation, a phone conversation that the défendant had.” 2“[W]e are not going to make it a practice in our office to show the Court during each trial what eavesdropping devices we used, because on its face it might be illégal.” “I don’t think that we hâve to commit ourselves in any case and say, 'Judge, since it might be illégal, we did not use it,’ so that we can make a record.” 3 “I represent only to your Honor in this case, and we will in other cases, that there was nothing illégal about any of the evidence we presented, no illégal eavesdropping devices were used, and I don’t think that I hâve to tell defense counsel whether or not we used eavesdropping equipment.” 4“[T]hey hâve sort of a practice that the one who is honored to reveal these things has been left to the Soliciter General of the United States. I know of no district attorney that has made a disclosure yet. They either make it in the Suprême Court or they make it in the Seventh Circuit, but we haven’t got down to the lower échelon yet where that has been disclosed even by the Solicitor General.” ORDERS 997 996 Douglas, J., dissenting of such surveillance was for the court to détermine, he argued, and he asked for a hearing to détermine if such devices were used.5 The Government asserted on appeal that “there was no electronic surveillance involved in this case.” This statement was supported by a letter from the Department of Justice: “Please be informed we hâve contacted the appropriate investigative agencies and hâve been informed Cook was not the subject of a direct microphone surveillance nor were any of his conversations moni-tored. Further, we are informed, no electronic surveillance was maintained on premises which were known to hâve been owned, leased, or licensed by the above individual.” Petitioner contended that this letter was far from clear as it did not state which agencies were contacted and only stated that he was not the subject of “direct” microphone surveillance, suggesting “indirect” surveillance. The Court of Appeals agreed that the statement of the prosecutor was “not unequivocal,” 432 F. 2d 1093, 1109, and that the disclosure should hâve been made to the trial judge. Yet it affirmed the conviction without further inquiry. Petitioner contends that he is entitled to a judicial détermination of the existence and legality of electronic eavesdropping. He argues that the United States has never stated unequivocally that no electronic eavesdropping occurred. The Solicitor General relies on the letter which I hâve quoted. Moreover, he indicates that the 5 “While défendant takes the position that disclosure in open court is the constitutionally preferred procedure, he submits at the same time that an in caméra détermination of legality or illegality was required as an absolute constitutional minimum under the Fourth Amendment.” (Brief for Defendant-Appellant in CA7, pp. 62-63.) 998 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. procedure followed below is in accordance with “statutory procedures now provided with respect to daims of illégal electronic surveillance in proceedings occurring after October 15, 1970 . . . .” From now on, the United States will not even review its files to détermine the existence of evidence stemming from electronic surveillance unless the défendant meets the “burden of raising any issue of illégal electronic surveillance . . . .” The Omnibus Crime Control and Safe Streets Act of 1968, § 802, 82 Stat. 212, 18 U. S. C. §§ 2510-2520 (1964 ed., Supp. V), provides for electronic surveillance either on warrants issued by a magistrate, § 2516, or on the sole initiative of the désignée of the Attorney General who “reasonably détermines” that there is “an emergency situation” respecting “conspiratorial activities” which threaten the national security or which involve “organized crime.” §2518(7). The officer must apply for an order approving the interception within 48 hours, complying with procedures for obtaining an order of authorization. If the application is denied, or approval is not issued before the interception is terminated, the contents of any intercepted communication are to be treated as illegally obtained. §2518(7). The Act sanctions free use of intercepted information among investigative personnel, § 2517 (1). It also widely protects “evidence derived therefrom,” §§2517 (1), (2), and (3), including the giving of testimonial evidence.6 But any person whose “wire or oral communication is intercepted, disclosed, or used” in violation of the ways I hâve enumerated has suit for actual and punitive damages and reasonable attorneys’ fees and costs. § 2520. 6 There is the initial question whether any intercepted communications relating to the offense of which petitioner was convicted are evidence of “offenses other than those specified in the order of authorization or approval,” §2517 (5). If so, “[s]uch contents and any evidence derived therefrom may be used [as testimony at trial] ORDERS 999 996 Douglas, J., dissenting The issue of “illegality” raised by the Government’s defense would raise a myriad of questions depending on the facts. They would pertain to the question of whether the showing required by § 2518 (1) of the Act had been made to the magistrate and raise the basic question whether, if a magistrate issued a warrant, there was “probable cause,” § 2518 (3). If there were a warrant, the question would also be whether the “search” was con-fined to the person, place, and time which were authorized. §§ 2518 (4), (5). If there were no warrant but only the action of the Attorney General under § 2518 (7), a host of different questions would be raised on the issue of “illegality.” These are new questions not yet decided under the new Act. They are important questions involving high mat-ters of policy. They will affect many cases. It is ap-propriate that we reach the questions here and now, so that the procedures to be used in protecting the rights of the citizen and confining the prosecution within constitutional bounds be resolved. While Alderman v. United States, 394 U. S. 165, was pending here, it was revealed that the United States had engaged in wiretapping which may hâve violated the Fourth Amendment and tainted the convictions of petitioner. We had earlier refused to accept “the ex parte détermination” of the issues by the Department of Justice, Kolod v. United States, 390 U. S. 136, 137, and in Alderman worked out the procedures whereby the District Court would détermine whether the evidence obtained was “the product of illégal surveillance.” 394 U. S., at 168. The questions in that case concerned the when authorized or approved by a judge of competent jurisdiction where such judge finds on subséquent application that the contents were otherwise intercepted in accordance with the provisions of this chapter.” This would seem to place upon the Government the burden of knowing the source of its evidence, even without challenge from a défendant. 1000 OCTOBER TERM, 1970 Douglas, J., dissenting 401 U. S. use of “evidence originating in electronic surveillance violative of his own Fourth Amendment right to be free of unreasonable searches and seizures.” Id., at 176. That is the question here and it is obviously not controlled by administrative practice or the Omnibus Crime Control and Safe Streets Act, both of which are subordinate to the Constitution. The procedure to be designed here is not relevant only to criminals. Electronic surveillance is today common and pervasive, as we know from reports filed pursuant to § 2519 (3) of the Act7 and from various Senate and House investiga- 7 The number of reported interceptions of communications made pursuant to the Act indicates the problem is not small. In the last six months of 1968 there were 174 authorizations issued, ail to state officers. One hundred forty-seven devices were installed. The average period of time authorized was 20 days. There were 128 extensions, averaging 20 days. Approximately 4,312 persons were involved in 66,716 intercepted communications. One hundred twenty-six intercepts were in dwellings and 45 were in business establishments. Based on Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications for the Period June 20, 1968, to December 31, 1968, Administrative Office of the United States Courts. In 1969, the pace did not perceptibly diminish. Total Fédéral State Number of applications...... 304 34 270 Authorizations issued........ 302 33 269 Average length of Authorization...................... 26 days 16 days — Extensions granted............... 194 11 183 Average length of extension.. 22 days 14 days — Total period authorized..... 9,019 days 462 days 8,557 days Number of devices installed.. 271 30 241 Téléphoné wiretap............. 250 27 223 Listening device................... 15 1 14 Both ............................... 6 2 4 [Footnote 7 continued on p. 1001] ORDERS 1001 996 Douglas, J,, dissenting tions, including the one being conducted by Senator Ervin.8 These invasions of privacy apparently touch not only criminals but also reputable people whose only offense is political, social, or ideological nonconform- Total F ederal State Facility or place authorized in application Résidence ......................... 135 10 125 Apartment .................... 68 7 61 Multiple dwelling................... 14 3 11 Business establishment........ 71 10 61 Business & living quarters............................. 5 2 3 Other ............................... 9 1 8 Average number of intercepts per authorized device.......... 641 1,498 — Average number of persons involved per wiretap........... 116 152 — Total number of intercepts (approx.) ..................... 178,300 44,900 133,300 Total number of persons involved (approx.)............. 13,400 4,560 8,880 Based on Report on Applications for Orders Authorizing or Approv-ing the Interception of Wire or Oral Comunications for the Period January 1, 1969, to December 31, 1969, Administrative Office of the United States Courts. What number of interceptions are made in cases which involve the so-called “national security” is not known. 8 See Hearings on the Computer and Invasion of Privacy before a Subcommittee of the House Committee on Government Operations, 89th Cong., 2d Sess. (1966) ; Address of Cong. Gallagher, Technology and Society: A Conffict of Interest?, 115 Cong. Rec. 8239; Privacy and the National Data Bank Concept, H. R. Rep. No. 1842, 90th Cong., 2d Sess. (1968); Hearings, pursuant to S. Res. 39, on Invasions of Privacy (Government Agencies) before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., Ist Sess., pt. 2 (1965). The hearings being conducted by Senator Ervin before the Subcommittee on Con-stitutional Rights of the Senate Committee on the Judiciary hâve not as yet been concluded. 1002 OCTOBER TERM, 1970 March 29, 1971 401 U. S. ity. As stated in A. Westin, Privacy and Freedom 365-366 (1967): “As of the 1960’s, the new surveillance technology is being used widely by government agencies of ail types and at every level of government, as well as by private agents for a rapidly growing number of businesses, unions, private organizations, and individuals in every section of the United States.” No. 6560. Osborn v. Rundle, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 6564. Bellew v. Swenson, Warden. Sup. Ct. Mo. Certiorari denied. Reported below: 459 S. W. 2d 351. No. 6572. Schutz v. United States. C. A. lOth Cir. Certiorari denied. Reported below: 432 F. 2d 25. No. 6575. Campbell v. Georgia. Sup. Ct. Ga. Certiorari denied. Reported below: 226 Ga. 883, 178 S. E. 2d 257. No. 6598. Yoder v. United States. C. A. 6th Cir. Certiorari denied. No. 6619. Buckley v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Reported below: 432 F. 2d 409. No. 834. Mayfield v. Virginia. Sup. Ct. App. Va. Motions to dispense with printing pétition and reply brief granted. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 874. Brewer, Warden v. Blanchard. C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 429 F. 2d 89. ORDERS 1003 401 U. S. March 29, 1971 No. 1197. Passai c County Bar Assn. et al. v. Hughes, Governor of New Jersey, et al. Sup. Ct. N. J. Certiorari denied. Mr. Justice Blackmun is of the opinion that certiorari should be granted. No. 1226. Mercado v. Superior Court of Puerto Rico et al. Sup. Ct. P. R. Certiorari denied. Mr. Justice Black is of the opinion that certiorari should be granted. Reported below: -------- P. R. R.-----. No. 1227. Housing Authority of the City of Durham, North Carolina, et al. v. Caulder. C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. The Chief Justice, Mr. Justice Black, and Mr. Justice White are of the opinion that certiorari should be granted. Reported below: 433 F. 2d 998. No. 1249. Overton v. Rieger. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 1253. Humble Oïl & Refining Co. v. Sun Oïl Co. C. A. 3d Cir. Certiorari denied. Mr. Justice Harlan took no part in the considération or decision of this pétition. Reported below: 431 F. 2d 1119. No. 1255. Marcello v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Reported below: 436 F. 2d 1221. No. 6370. Blanton v. Arkansas. Sup. Ct. Ark. Certiorari denied. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the opinion that certiorari should be granted. Reported below: ------- Ark.------------------------------------------------------, 458 S. W. 2d 373. 1004 OCTOBER TERM, 1970 March 29, April 5, 1971 401 U. S. No. 6543. Darden v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the opinion that certiorari should be granted. Reported below: 441 Pa. 41, 271 A. 2d 257. Rehearing Denied No. 1686, Mise., October Term, 1969. Delespine v. Beto, Corrections Director, 397 U. S. 1030. Motion for leave to file pétition for rehearing denied. Mr. Justice Blackmun took no part in the considération or decision of this motion. No. 949. Rubino v. United States, ante, p. 910; No. 5537. Furgison v. Iowa, 400 U. S. 994; No. 6007. Halley v. United States et al., ante, p. 905; No. 6118. Halley v. United States, ante, p. 916; and No. 6074. Curtis v. United States, ante, p. 915. Pétitions for rehearing denied. No. 714. Zezoff v. United States, 400 U. S. 957. Motion to dispense with printing motion for leave to file pétition for rehearing granted. Motion for leave to file pétition for rehearing denied. April 5, 1971 Afiirmed on Appeal No. 1252. Pratz et al. v. Louisiana Polytechnic Institute et al. Affirmed on appeal from D. C. W. D. La. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the opinion that the question of jurisdiction should be postponed to hearing on the merits and case set for oral argument. Reported below: 316 F. Supp. 872. ORDERS 1005 401 U. S. April 5, 1971 Appeals Dismissed No. 1229. Shipyard Drive-In Theatre, Inc., et al. v. Scuncio et al. Appeal from Sup. Ct. R. I. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that the judgment should be reversed. Reported below:---------R. I.------, 268 A. 2d 820. No. 1313. Berry v. Aetna Casualty & Surety Co. et al. Appeal from Ct. App. La., 2d Cir. Motion of Arthur Cobb and Louisiana Trial Lawyers Assn. for leave to file a brief as amici curiae granted. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 240 So. 2d 243. No. 1330. Huntington National Bank of Colum-bus v. Kosydar, Tax Commissioner of Ohio. Appeal from Sup. Ct. Ohio dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari denied. Reported below: 23 Ohio St. 2d 131, 263 N. E. 2d 227. No. 1323. Atchison, Topeka & Santa Fe Railway Co. et al. v. Apache County et al. Appeal from Sup. Ct. Ariz. dismissed for want of substantial fédéral question. Mr. Justice Black is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 106 Ariz. 356, 476 P. 2d 657. 415-649 0 - 72 - 66 1006 OCTOBER TERM, 1970 April 5, 1971 401 U. S. Vacated and Remanded on Appeal No. 422. United States v. McFadden. Appeal from D. C. N. D. Cal. Judgment vacated and case remanded for reconsideration in light of Gillette v. United States, and Negre v. Larsen, ante, p. 437. Mr. Justice Douglas dissents. Reported below: 309 F. Supp. 502. No. 1326. Smith, Governor of Texas, et al. v. Garza et al. Appeal from D. C. W. D. Tex. Judgment vacated and case remanded so that the District Court may enter a fresh judgment from which a timely appeal may be taken to United States Court of Appeals for the Fifth Circuit if appellants so choose. Gunn v. University Committee to End the War in Vietnam, 399 U. S. 383 (1970). Mr. Justice Douglas is of the opinion that judgment should be affirmed, being of the view that appeal is properly before this Court. Reported below: 320 F. Supp. 131. Certiorari Granted—Reversed and Remanded. (See No. 6131, ante, p. 847.) Certiorari Granted—Vacated and Remanded, or Reversed No. 786. Childs v. Oregon et al. C. A. 9th Cir. Certiorari granted and judgment reversed. Redrup v. New York, 386 U. S. 767 (1967). The Chief Justice, Mr. Justice Harlan, and Mr. Justice Blackmun are of the opinion that certiorari should be denied. Reported below: 431 F. 2d 272. No. 56. Epps v. United States. C. A. lOth Cir. Certiorari granted, judgment vacated, and case remanded to the District Court for the Northern District of Okla-homa with directions to dismiss indictment. Durham v. United States, ante, p. 481. The Chief Justice, Mr. Justice Stewart, Mr. Justice Marshall, and Mr. Justice Blackmun are of the opinion that motion of counsel for respondent to dismiss pétition as moot should be ORDERS 1007 401 U. S. April 5, 1971 granted. See dissenting opinions in Durham v. United States, supra, p. 483. Reported below: 416 F. 2d 887. No. 72. United States v. Shields. C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of Gillette v. United States, and Negre v. Larsen, ante, p. 437. Mr. Justice Douglas dissents. Reported below: 416 F. 2d 935. No. 976. Somerville v. Illinois. C. A. 7th Cir. Certiorari granted. Judgment vacated and case remanded for reconsideration in light of United States v. Jorn, 400 U. S. 470, and Downum v. United States, 372 U. S. 734 (1963). Mr. Justice Douglas is of the opinion that the pétition should be granted and judgment reversed. United States v. Jorn, supra. Reported below: 429 F. 2d 1335. Miscellaneous Orders No. 712. Triangle Improvement Council et al. v. Ritchie, Commissioner, State Road Commission of West Virginia, et al. C. A. 4th Cir. [Certiorari granted, 400 U. S. 963.] Motion for leave to file petitioners’ reply brief out of time granted. No. 824. M. F. A. Central Cooperative et al. v. Bookwalter, District Director of Internal Revenue, et al. C. A. 8th Cir. Motion to expedite considération of pétition for writ of certiorari denied. Motion of petitioners to argue orally as amicus curiae in No. 1082 denied. Mr. Justice Blackmun took no part in the considération or decision of these motions. Reported below : 427 F. 2d 1341. No. 6400. Webster et al. v. United States. C. A. 4th Cir. Application for bail presented to Mr. Justice Black, and by him referred to the Court, denied. Reported below: 426 F. 2d 289. 1008 OCTOBER TERM, 1970 April 5, 1971 401 U. S. No. 1395. DeSapio v. United States. C. A. 2d Cir. Motion of petitioner for leave to examine sealed briefs filed on behalf of respondent in No. 825, October Term, 1970, granted. Mr. Justice White took no part in the considération or decision of this motion. Reported below: 435 F. 2d 272. No. 5940. Haines v. Kerner et al. C. A. 7th Cir. [Certiorari granted, ante, p. 954.] Motion of petitioner for appointment of counsel granted. It is ordered that Stanley A. Bass, of New York, New York, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case. No. 6307. Frias v. Nelson, Warden. Motion for leave to file pétition for writ of habeas corpus denied. No. 1274. Rafter v. Hoyt, Judge. Motion for leave to file pétition for writ of mandamus denied. Certiorari Granted No. 1325. North Carolina v. Rice. C. A. 4th Cir. Certiorari granted. Reported below: 434 F. 2d 297. No. 1332. Reliance Electric Co. v. Emerson Electric Co. C. A. 8th Cir. Certiorari granted. Reported below: 434 F. 2d 918. Certiorari Denied. (See also Nos. 1229, 1313, and 1330, supra.) No. 1103. In re Metropolitan Realty Corp. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 676. No. 1254. District Council 51, American Fédération of State, County and Municipal Employées, et al. v. Goldberg et al. Sup. Ct. Ohio. Certiorari denied. ORDERS 1009 401 U. S. April 5, 1971 No. 1216. Sid W. Richardson Foundation v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 710. No. 1287. Grieco v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 677. No. 1290. Atwell v. Retail Crédit Co. C. A. 4th Cir. Certiorari denied. Reported below: 431 F. 2d 1008. No. 1291. Kellwood Co., Ottenheimer Division v. National Labor Relations Board et al. C. A. 8th Cir. Certiorari denied. Reported below: 434 F. 2d 1069. No. 1293. United Steelworkers of America, AFL-CIO v. Abrams et al. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 1234. No. 1295. Ballou et al. v. General Electric Co. C. A. Ist Cir. Certiorari denied. Reported below: 433 F. 2d 109. No. 1298. Preiser Scientific, Inc., of Ohio, et al. v. Piedmont Aviation, Inc. C. A. 4th Cir. Certiorari denied. Reported below: 432 F. 2d 1002. No. 1299. Szot v. Florida Industrial Commission et al. Dist. Ct. App. Fia., 3d Dist. Certiorari denied. No. 1301. Ruscito et al. v. Schaffer, Secretary of State of Connecticut. C. A. 2d Cir. Certiorari denied. Reported below : 436 F. 2d 584. No. 1302. Bessesen v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 433 F. 2d 861. No. 1304. Alexander et al. v. Pacific Maritime Assn. et al. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 281. 1010 OCTOBER TERM, 1970 April 5, 1971 401 U. S. No. 1306. Held v. United States et al. C. A. 6th Cir. Certiorari denied. Reported below: 435 F. 2d 1361. No. 1311. Burnett v. United States et al. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 1356. No. 1312. Hubbard v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 434 F. 2d 62. No. 1318. Rogers, Guardian, et al. v. Ray Gardner Flying Service, Inc., et al. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 1389. No. 1319. City of Lackawanna, New York, et al. v. Kennedy Park Homes Assn., Inc., et al. C. A. 2d Cir. Certiorari denied. Reported below: 436 F. 2d 108. No. 1320. Shapiro v. East Windsor Municipal Utilities Authority. Sup. Ct. N. J. Certiorari denied. Reported below: 57 N. J. 168, 270 A. 2d 410. No. 1327. Olds v. Pennsalt Chemicals Corp. C. A. 6th Cir. Certiorari denied. Reported below: 432 F. 2d 1033. No. 1335. Butts et al. v. United States. C. A. 2d Cir. Certiorari denied. No. 6077. Ellis v. Oklahoma et al. C. A. lOth Cir. Certiorari denied. Reported below: 430 F. 2d 1352. No. 6117. Sabow v. Michigan. Sup. Ct. Mich. Certiorari denied. No. 6200. Emmons v. Taylor et al. C. A. D. C. Cir. Certiorari denied. No. 6223. In re Disbarment of Chipley. Sup. Ct. S. C. Certiorari denied. Reported below: 254 S. C. 588, 176 S. E. 2d 412. ORDERS 1011 401 U. S. April 5, 1971 No. 6210. Braden v. Hocklander, Judge. Sup. Ct. Ala. Certiorari denied. No. 6282. Dooner v. Director, Kings Park State Hospital. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 6297. Wright v. District Court of Montgomery County. Sup. Ct. Kan. Certiorari denied. No. 6350. Carr v. United States. C. A. 9th Cir. Certiorari denied. No. 6456. Williams v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 681. No. 6472. Akin v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 1011. No. 6482. Higdon v. United States; and No. 1303. Higdon v. United States. C. A. lOth Cir. Certiorari denied. Reported below: 434 F. 2d 622. No. 6499. Fassler v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 161. No. 6500. Geiger v. McBee. C. A. 7th Cir. Certiorari denied. Reported below: 430 F. 2d 344. No. 6505. Niemeyer v. Ciccone, Medical Center Director, et al. C. A. 8th Cir. Certiorari denied. No. 6508. Goetluck v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 433 F. 2d 971. No. 6511. Smith v. Rodgers, Jail Superintendent. C. A. D. C. Cir. Certiorari denied. No. 6517. Benoit v. United States. C. A. lst Cir. Certiorari denied. No. 6534. Mines v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 427 F. 2d 1365. 1012 OCTOBER TERM, 1970 April 5, 1971 401 U. S. No. 6557. Sealey v. North Carolina. C. A. 4th Cir. Certiorari denied. No. 6558. Koresko v. United States. Ct. Cl. Certiorari denied. No. 6571. Knight v. Gaffney, Warden. C. A. lOth Cir. Certiorari denied. No. 6574. Hoag v. California. Ct. App. Cal., 3d App. Dist. Certiorari denied. No. 6576. Fannon v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 364. No. 6589. Schlette v. California Adult Authority et al. C. A. 9th Cir. Certiorari denied. No. 6602. Baker v. Georgia. Ct. App. Ga. Certiorari denied. Reported below: 122 Ga. App. 587, 178 S. E. 2d 278. No. 6614. Vasquez v. Indiana. Sup. Ct. Ind. Certiorari denied. Reported below: ---Ind.-----, 260 N. E. 2d 779. No. 6617. Fehlhaber et al. v. San Francisco Uni-fied School District et al. Sup. Ct. Cal. Certiorari denied. Reported below: 3 Cal. 3d 937, 479 P. 2d 669. No. 6649. Malone v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 12. Cox, Penitentiary Superintendent v. McLaren. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas would dismiss pétition as moot. No. 45. Pratt v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 412 F. 2d 426. ORDERS 1013 401 U. S. April 5, 1971 No. 1000. Scudder & German v. Pearlstein. C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Blackmun are of the opinion that certiorari should be granted. Reported below: 429 F. 2d 1136. No. 1243. Hopkins v. United States. C. A. 5th Cir. Motion to dispense with printing pétition granted. Certiorari denied. Reported below: 433 F. 2d 1041. No. 1297. Board of Education of Netcong et al. v. State Board of Education et al. Sup. Ct. N. J. Certiorari denied. Mr. Justice Stewart and Mr. Justice White are of the opinion that certiorari should be granted. Reported below: 57 N. J. 172, 270 A. 2d 412. No. 1300. Curtin, Administratrix v. Superior Court of California, County of Alameda. Ct. App. Cal., lst App. Dist. Certiorari denied. Mr. Justice Black is of the opinion that certiorari should be granted. Reported below: 12 Cal. App. 3d 105, 90 Cal. Rptr. 461. No. 1321. Maker v. Wisconsin. Sup. Ct. Wis. Certiorari denied. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the opinion that certiorari should be granted and judgment reversed. Thompson v. Louisville, 362 U. S. 199 (1960). Reported below: 48 Wis. 2d 612, 180 N. W. 2d 707. No. 5311. Moore v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Harlan is of the opinion that certiorari should be granted, judgment vacated, and case remanded for reconsideration in light of his opinion in Welsh v. United States, 398 U. S. 333, 344 (1970), and Gillette v. United States, ante, p. 437. Reported below: 423 F. 2d 556. 1014 OCTOBER TERM, 1970 April 5, 1971 401 U. S. No. 5722. Compton v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Marshall are of the opinion that certiorari should be granted. Reported below: 428 F. 2d 18. No. 6224. Haffke v. California. Ct. App. Cal., 2d App. Dist. Motion to strike exhibits submitted by respondent and certiorari denied. No. 6272. Smith v. Bloom, Judge. Sup. Ct. Mo. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. No. 6491. Evans v. United States. C. A. 3d Cir. Certiorari denied. Mr. Justice Marshall took no part in the considération or decision of this pétition. Reported below: 435 F. 2d 708. No. 6515. Meadows et al. v. United States Mar-shal, Northern District of Georgia. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice Stewart are of the opinion that certiorari should be granted. Reported below: 434 F. 2d 1007. Rehearing Denied No. 988. Minnesota Mining & Manufacturing Co. v. Norton Co. et al., ante, p. 925. Pétition for rehearing denied. Mr. Justice Blackmun took no part in the considération or decision of this pétition. No. 989. Billy Baxter, Inc. v. Coca-Cola Co. et al., ante, p. 923. Pétition for rehearing denied. Mr. Justice Douglas took no part in the considération or decision of this pétition. No. 1016. Jones v. United States, ante, p. 926. Motion for leave to dispense with printing pétition for rehearing granted. Pétition for rehearing denied. ORDERS 1015 401 U. S. April 5, 1971 No. 47. Usner v. Luckenbach Overseas Corp. et al., 400 U. S. 494; No. 80. Zenith Radio Corp. v. Hazeltine Research, Inc., ante, p. 321; No. 109. Time, Inc. v. Pape, ante, p. 279; No. 787. Ohlendorf et ux. v. Gayles et al., ante, p. 929; No. 901. Sherman et al. v. United States, ante, p. 908; No. 1001. National Screen Service Corp. v. Poster Exchange, Inc., ante, p. 912; No. 1004. Hansen v. Haagensen, ante, p. 912; No. 5964. Walker v. Brantley, Warden, ante, p. 942; No. 6068. Wimberley v. Craven, Warden, et al., ante, p. 915; No. 6096. Maranze v. Dayton School Board et al., ante, p. 916; No. 6155. Bryant v. Maryland, ante, p. 917; and No. 6189. McPeak et al. v. Adjustment Corp., ante, p. 919. Pétitions for rehearing denied. AMENDMENTS TO RULES OF CIVIL PROCEDURE Effective July 1, 1971 The following amendments to the Rules of Civil Procedure were prescribed by the Suprême Court of the United States on March 1, 1971, pursuant to 28 U. S. C. §§ 2072 and 2075, and were reported to Congress by The Chief Justice on the same date. For the letter of transmittal, see post, p. 1018. The Judicial Conférence report referred to in that letter is not reproduced herein. (Where used with respect to the following amendments of the Rules of Civil, Criminal, and Appellate Procedure, 28 U. S. C. § 2072 and 18 U. S. C. § 3771 refer to Supplément V of the 1964 édition of the United States Code.) These amendments became effective July 1, 1971, as provided in paragraph 1 of the Court’s order, post, p. 1019. For earlier publications of the Rules of Civil Procedure and the amendments thereto, see 308 U. S. 645, 308 U. S. 642, 329 U. S. 839, 335 U. S. 919, 341 U. S. 959, 368 U. S. 1009, 374 U. S. 861, 383 U. S. 1029, 389 U. S. 1121, and 398 U. S. 977. 1017 LETTER OF TRANSMITTAL Suprême Court of the United States WASHINGTON, D. C. March 1, 1971 To the Senate and House of Représentatives of the United States of America in Congress Assembled: By direction of the Suprême Court, I hâve the honor to submit to the Congress the attached amendments to the Rules of Civil Procedure for the United States District Courts, to the Rules of Criminal Procedure for the United States District Courts, and to the Fédéral Rules of Appellate Procedure which hâve been adopted by the Suprême Court, pursuant to Title 28, United States Code, Sections 2072 and 2075 and Title 18, United States Code, Sections 3771 and 3772. Mr. Justice Black and Mr. Justice Douglas dissent from the action of the Court. Accompanying these amendments is the Report of the Judicial Conférence of the United States, submitted to the Court for its considération pursuant to Title 28, United States Code, Section 331. Respectfully, (Signed) Warren E. Burger Chief Justice of the United States 1018 SUPREME COURT OF THE UNITED STATES MONDA Y, MARCH 1, 1971 Ordered: 1. That subdivision (a) of Rule 6, paragraph (4) of subdivision (a) of Rule 27, paragraph (6) of subdivision (b) of Rule 30, subdivision (c) of Rule 77, and paragraph (2) of subdivision (a) of Rule 81 of the Fédéral Rules of Civil Procedure be, and they hereby are, amended, effective July 1, 1971, to read as follows: [See infra, pp. 1021-1023.] 2. That subdivision (a) of Rule 45 and ail of Rule 56 of the Fédéral Rules of Criminal Procedure be, and they hereby are, amended, effective July 1, 1971, to read as follows: [See infra, p. 1027.] 3. That subdivision (a) of Rule 26 and subdivision (a) of Rule 45 of the Fédéral Rules of Appellate Procedure be, and they hereby are, amended, effective July 1, 1971, to read as follows: [See infra, pp. 1031-1032.] 4. That The Chief Justice be, and he hereby is, authorized to transmit to the Congress the foregoing amendments to the Rules of Civil, Criminal and Appellate Procedure, in accordance with the provisions of Title 18, U. S. C. § 3771, and Title 28, U. S. C., §§ 2072 and 2075. Mr. Justice Black and Mr. Justice Douglas dissent from the order entered by the Court today amending the Fédéral Rules of Civil Procedure, the Fédéral Rules of Criminal Procedure, and the Fédéral Rules of Appellate Procedure. 1019 AMENDMENTS TO RULES OF CIVIL PROCEDURE Rule 6. Time (a) Camputation.—In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77 (c), “legal holiday” includes New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Vétérans Day, Thanksgiving Day, Christ-mas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held. Rule 27. Dépositions before action or pending appeal (a) Before action (4) Use of déposition.—If a déposition to perpetu-ate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subse-quently brought in a United States district court, in accordance with the provisions of Rule 32 (a). 1021 415-649 0 - 72 - 67 1022 RULES OF CIVIL PROCEDURE Rule 30. Dépositions upon oral examination (b) Notice oj examination: General requirements; spécial notice; non-stenographic recording; production oj documents and things; déposition oj organization (6) A party may in his notice and in a subpoena name as the déponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a non-party organization of its duty to make such a désignation. The persons so designated shall testify as to matters known or rea-sonably available to the organization. This subdivision (b) (6) does not preclude taking a déposition by any other procedure authorized in these rules. Rule 77. District courts and clerks (c) Clerk’s office and orders by clerk.—The clerk’s office with the clerk or a deputy in attendance shall be open during business hours on ail days except Saturdays, Sundays, and legal holidays, but a district court may provide by local rule or order that its clerk’s office shall be open for specified hours on Saturdays or particular legal holidays other than New Year’s Day, Washing-ton’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Vétérans Day, Thanksgiving Day, and Christmas Day. Ail motions and applications in the clerk’s office for issuing mesne process, for issuing final process to enforce and execute judgments, for entering defaults or judgments by default, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk ; but his action RULES OF CIVIL PROCEDURE 1023 may be suspended or altered or rescinded by the court upon cause shown. Rule 81. Applicability in general (a) To what proceedings applicable (2) These rules are applicable to proceedings for admission to citizenship, habeas corpus, and quo warrante, to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions. The writ of habeas corpus, or order to show cause, shall be directed to the person having custody of the person detained. It shall be returned within 3 days unless for good cause shown additional time is allowed which in cases brought under 28 U. S. C. § 2254 shall not exceed 40 days, and in ail other cases shall not exceed 20 days. 415-649 0 - 72 - 68 AMENDMENTS TO RULES OF CRIMINAL PROCEDURE Effective July 1, 1971 The following amendments to the Rules of Criminal Procedure were prescribed by the Suprême Court of the United States on March 1, 1971, pursuant to 18 U. S. C. §§ 3771 and 3772, and were reported to Congress by The Chief Justice on the same date. For the letter of transmittal, see ante, p. 1018. The Judicial Conférence report referred to in that letter is not reproduced herein. These amendments became effective July 1, 1971, as provided in paragraph 2 of the Court’s order, ante, p. 1019. For earlier publications of the Rules of Criminal Procedure and the amendments thereto, see 327 U. S. 821, 335 U. S. 917, 949, 346 U. S. 941, 350 U. S. 1017, 383 U. S. 1087, and 389 U. S. 1125. 1025 AMENDMENTS TO RULES OF CRIMINAL PROCEDURE Rule 45. Time (a) Computation.—In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holi-days shall be excluded in the computation. As used in these rules, “legal holiday” includes New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Vétérans Day, Thanks-giving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held. Rule 56. Courts and clerks The district court shall be deemed always open for the purpose of filing any proper paper, of issuing and return-ing process and of making motions and orders. The clerk’s office with the clerk or a deputy in attendance shall be open during business hours on ail days except Saturdays, Sundays, and legal holidays, but a court may provide by local rule or order that its clerk’s office shall be open for specified hours on Saturdays or particular legal holidays other than New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Vétérans Day, Thanksgiving Day, and Christmas Day. 1027 AMENDMENTS TO FEDERAL RULES OF APPELLATE PROCEDURE Effective July 1, 1971 The following amendments to the Fédéral Rules of Appellate Procedure were prescribed by the Suprême Court of the United States on March 1, 1971, pursuant to 18 U. S. C. §§ 3771 and 3772 and 28 U. S. C. §§ 2072 and 2075, and were reported by The Chief Justice on the same date. For the letter of transmittal, see ante, p. 1018. The Judicial Conférence report referred to in that letter is not reproduced herein. These amendments became effective July 1, 1971, as provided by paragraph 3 of the Court’s order, ante, p. 1019. For earlier publication of the Rules of Appellate Procedure and the amendments thereto, see 389 U. S. 1063 and 398 U. S. 971. 1029 AMENDMENTS TO FEDERAL RULES OF APPELLATE PROCEDURE Rule 26. Computation and extension of time (a) Computation of time.—In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period extends until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, inter-mediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule “legal holiday” includes New Year’s Day, Washington’s Birth -day, Memorial Day, Independence Day, Labor Day, Columbus Day, Vétérans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States. It shall also include a day appointed as a holiday by the state wherein the district court which rendered the judgment or order which is or may be appealed from is situated, or by the state wherein the principal office of the clerk of the court of appeals in which the appeal is pending is located. Rule 4-5. Duties of clerks (a) General provisions.—The clerk of a court of appeals shall take the oath and give the bond required by law. Neither the clerk nor any deputy clerk shall practice as an attorney or counselor in any court while he continues in office. The court of appeals shall be deemed always open for the purpose of filing any proper 1031 1032 FEDERAL RULES OF APPELLATE PROCEDURE paper, of issuing and returning process and of making motions and orders. The office of the clerk with the clerk or a deputy in attendance shall be open during business hours on ail days except Saturdays, Sundays, and legal holidays, but a court may provide by local rule or order that the office of its clerk shall be open for specified hours on Saturdays or on particular legal holidays other than New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Vétérans Day, Thanksgiving Day, and Christmas Day. Reporter’s Note The next page is purposely numbered 1201. The numbers between 1032 and 1201 were intentionally omitted, in order to make it possible to publish in-chambers opinions in the current preliminary prints of the United States Reports with permanent page numbers, thus making the official citations immediately available. OPINIONS OF INDIVIDUAL JUSTICES IN CHAMBERS FROM FEBRUARY 11 THROUGH MARCH 1, 1971 KARR v. SCHMIDT, PRINCIPAL OF CORONADO HIGH SCHOOL, et al. ON MOTION TO VACATE A STAY OF INJUNCTION PENDING APPEAL Decided February 11, 1971 Motion to vacate Court of Appeals’ stay of District Court’s order enjoining El Paso, Texas, public school authorities from enforcing rules regarding the length of schoolboys’ hair is denied, as Justice Black refuses to hold, or predict that this Court will hold, that fédéral courts hâve the constitutional power to interfère in this way with the public school System operated by the States. See: 320 F. Supp. 728. Mr. Justice Black, Circuit Justice. This “Emergency Motion to Vacate Stay of Injunction Pending Appeal” has been presented to me as the Suprême Court Justice assigned to the Court of Appeals for the Fifth Circuit. The motion concerns rules adopted by the school authorities of El Paso, Texas, providing that schoolboys’ hair must not “hang over the ears or the top of the collar of a standard dress shirt and must not obstruct vision.” The rules also provide that boys will not be admitted to or allowed to remain in school unless their hair meets this standard. The United States District Court for the Western District of Texas, El Paso Division, held after hearings that this local student hair length rule violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and enjoined its enforcement, declin-ing to suspend its injunction pending appeal. On motion of the school authorities, the Court of Appeals for the Fifth Circuit stayed and suspended the District Court’s 1201 1202 OCTOBER TERM, 1970 Opinion in Chambers 401 U. S. injunction and the student appellees hâve asked me to vacate the Court of Appeals’ stay of the injunction. Should I vacate the stay the El Paso school authorities would remain subject to the District Court’s injunction and would thereby be forbidden to enforce their local rule requiring public school students not to wear hair hanging over their collars or obstructing their vision. I refuse to hold for myself that the fédéral courts hâve constitutional power to interfère in this way with the public school System operated by the States. And I furthermore refuse to predict that our Court will hold they hâve such power. It is true that we hâve held that this Court does hâve power under the Fourteenth Amendment to bar state public schools from discriminating against Negro students on account of their race but we did so by virtue of a direct, positive command in the Fourteenth Amendment, which, like the other Civil War Amendments, was primarily designed to outlaw racial discrimination by the States. There is no such direct, positive command about local school rules with refer-ence to the length of hair state school students must hâve. And I cannot now predict this Court will hold that the more or less vague terms of either the Due Process or Equal Protection Clause hâve robbed the States of their traditionally recognized power to run their school Systems in accordance with their own best judgment as to the appropriate length of hair for students. The motion in this case is presented to me in a record of more than 50 pages, not counting a number of exhibits. The words used throughout the record such as “Emer-gency Motion” and “harassment” and “irréparable damages” are calculated to leave the impression that this case over the length of hair has created or is about to create a great national “crisis.” I confess my inability to understand how anyone would thus classify this hair length case. The only thing about it that borders on KARR v. SCHMIDT 1203 1201 Opinion in Chambers the serions to me is the idea that anyone should think the Fédéral Constitution imposes on the United States courts the burden of supervising the length of hair that public school students should wear. The records of the fédéral courts, including ours, show a heavy burden of litigation in connection with cases of great importance—the kind of litigation our courts must be able to handle if they are to perform their responsibility to our society. Moreover, our Constitution has sought to distribute the powers of government in this Nation between the United States and the States. Surely the fédéral judiciary can perform no greater service to the Nation than to leave the States unhampered in the performance of their purely local affairs. Surely few policies can be thought of that States are more capable of deciding than the length of the hair of schoolboys. There can, of course, be honest différences of opinion as to whether any government, state or fédéral, should as a matter of public policy regulate the length of haircuts, but it would be difficult to prove by reason, logic, or common sense that the fédéral judiciary is more competent to deal with hair length than are the local school authorities and state législatures of ail our 50 States. Perhaps if the courts will leave the States free to perform their own constitutional duties they will at least be able successfully to regulate the length of hair their public school students can wear. Motion denied. 1204 OCTOBER TERM, 1970 Opinion in Chambers 401 U. S. HAYWOOD v. NATIONAL BASKETBALL ASSN. ON APPLICATION FOR STAY Decided March 1, 1971 Applicant, a former Olympic star who had signed with the Seattle team of the National Basketball Association (NBA), brought an action against the NBA, claiming that its threatened sanctions against him and the Seattle team for alleged noncompliance with the NBA’s player draft rules violated the antitrust laws. The District Court’s grant of an injunction pendente lite permitting applicant to play for the Seattle team was stayed by the Court of Appeals. Applicant seeks a stay of the Court of Appeals’ action. Held: The equities as between the parties favor reinstate-ment of the District Court’s preliminary injunction, 28 U. S. C. § 1651 (a), which will enable applicant to play and thus further Seattle’s efforts to qualify for the imminent playoffs, and should it be necessary that court can fashion appropriate relief in light of the outcome of the litigation and the athletic compétition. Mr. Justice Douglas, Circuit Justice. This is an application for a stay of an order issued by the Court of Appeals for the Ninth Circuit. It raises questions under the Sherman Act concerning the legality of the professional basketball college player draft. The hearing on the merits will be heard by the District Court for the Central District of California. The Seattle club for which the applicant now plays basketball has joined in the request for the stay, while the NBA opposes. Under the rules of the NBA a college player cannot be drafted until four years after he has graduated from high school. Players are drafted by teams in the inverse order of their finish during the previous season. No team may negotiate with a player drafted by another team. Applicant played with the 1968 Olympic team and then went to college. Prior to graduation he signed with HAYWOOD v. NATIONAL BASKETBALL ASSN. 1205 1204 Opinion in Chambers the rival American Basketball Association, but upon turn-ing 21 he repudiated the contract, charging fraud. He then signed with Seattle of the NBA. This signing was less than four years after his high school class had graduated (thus leaving him inéligible to be drafted under the NBA rules). The NBA threatened to disallow the contract and also threatened Seattle’s team with various sanctions. Applicant then commenced an antitrust action against the NBA. He allégés the conduct of the NBA is a group boycott of himself and that under Fashion Originators’ Guild v. FTC, 312 U. S. 457, and Klor’s v. Broadway-Hale Stores, 359 U. S. 207, it is a per se violation of the Sherman Act. He was granted an injunction pendente lite which allowed him to play for Seattle and forbade NBA to take sanctions against the Seattle team. The District Court ruled: “If Haywood is unable to continue to play profes-sional basketball for Seattle, he will suffer irréparable in jury in that a substantial part of his playing career will hâve been dissipated, his physical condition, skills and coordination will deteriorate from lack of high-level compétition, his public acceptance as a super star will diminish to the détriment of his career, his self-esteem and his pride will hâve been injured and a great injustice will be perpetrated on him.” The college player draft binds the player to the team selected. Basketball, however, does not enjoy exemption from the antitrust laws. Thus the decision in this suit would be similar to the one on basebaH’s reserve clause which our decisions exempting baseball from the antitrust laws hâve foreclosed. See Fédéral Baseball Club v. National League, 259 U. S. 200; Toolson v. New York 415-649 0 - 72 - 69 1206 OCTOBER TERM, 1970 Opinion in Chambers 401 U. S. Yankees, 346 U. S. 356. This group boycott issue in professional sports is a significant one. The NBA appealed the granting of the preliminary injunction to the Court of Appeals for the Ninth Circuit. That court stayed the injunction, stating: “We hâve considered the status quo existing prior to the District Court’s action and the disturbance of that status resulting from the injunction; the nature and extent of injury which continuation of the injunction or its stay would cause to the respective parties; and the public interest in the institution of professional basketball and the orderly régulation of its affairs.” The matter is of some urgency because the athletic contests are under way and the playoffs between the various clubs will begin on March 23. Should applicant prevail at the trial his team will probably not be in the playoffs, because under the stay order issued by the Court of Appeals he is unable to play. Should he be allowed to play and his team not make the playoffs then no one, of course, will hâve been injured. Should he be allowed to play and his team does make the playoffs but the District Court decision goes in favor of the NBA, then it would be for the District Court to détermine whether the NBA could disregard the Seattle victories in ail games in which he participated and recompute who should be in the playoffs. To dissolve the stay would preserve the interest and integrity of the playoff System, as I hâve indicated. Should there not be a decision prior to beginning of the playoffs and should Seattle make the playoffs then the District Court could fashion whatever relief it deems équitable. In view of the equities between the parties, 28 U. S. C. § 1651 (a), I hâve decided to allow the preliminary in- HAYWOOD v. NATIONAL BASKETBALL ASSN. 1207 1204 Opinion in Chambers junction of the District Court to be reinstated. The status quo provided by the Court of Appeals is the status quo before applicant signed with Seattle. The District Court preserved the status quo prior to the NBA’s action against Seattle and Haywood. That is the course I deem most worthy of this intérim protection. The stay will issue. INDEX ABATEMENT. See Procedure, 5. ABATEMENT OF NUISANCES. See Jurisdiction, 7. ABILITY TESTS. See Civil Rights Act of 1964, 1-2. ABSTENTION. See also Procedure, 1, 19. Equal protection claim—State constitutional issue.—District Court mistakenly relied on Monroe v. Pape, 365 U. S. 167, and McNeese v. Board of Education, 373 U. S. 668, in refusing to abstain from deciding case on merits pending resolution by state courts of state constitutional claims that might obviate need for determining Fourteenth Amendment issue. Askew v. Hargrave, p. 476. ACCESS TO COURTS. See Constitutional Law, I, 2; V; Divorce; Indigents, 1. ACCRUAL OF ACTIONS. See Procedure, 2. ACKNOWLEDGMENT OF PARENTAGE. See Constitutional Law, II, 1; Decedents’ Estâtes. ACTIONS. See Procedure, 2. ACTUAL MALICE. See Constitutional Law, VI, 1-3; Libel, 1-2. ADJUDICATION OF WATER RIGHTS. See Jurisdiction, 8-9; Water Rights, 1-2. ADMINISTRATION OF BANKRUPT ESTATE. See Bankruptcy Act. ADMINISTRATIVE PROCEDURE. See also National Labor Relations Act. 1. Secretary of Transportation—Construction of highways through public parks—Judicial review.—Secretary’s authorization of fédéral funds for construction of highway through Memphis park is subject to judicial review pursuant to § 701 of the Administrative Procedure Act, as the exemption for action “committed to agency discrétion” does not apply as the Secretary does hâve “law to apply” rather than wide-ranging discrétion. Citizens to Preserve Overton Park v. Volpe, p. 402. 2. Secretary of Transportation—Formai findings—Remand.—Formai findings by the Secretary with respect to his approval of highway through Memphis park were not required in this case, and in 1209 1210 INDEX ADMINISTRATIVE PROCEDURE—Continued. light thereof, the court on remand may require the administrative officiais who participated in the decision to explain their action or require the Secretary to make formai findings. Citizens to Preserve Overton Park v. Volpe, p. 402. 3. Secretary of Transportation—Judicial review.—Although under § 706 of the Administrative Procedure Act de novo review is not required here and the Secretary’s approval of the route of the highway through Memphis park need not meet the substantial-evidence test, reviewing court must conduct substantial inquiry and détermine whether the Secretary acted within the scope of his author-ity, whether his decision was within the small range of available choices, and whether he could hâve reasonably believed that there were no feasible alternatives. Citizens to Preserve Overton Park v. Volpe, p. 402. ADMINISTRATIVE PROCEDURE ACT. See Administrative Procedure, 1-3. ADMISSIBILITY. See Constitutional Law, VII, 2, 4-5; Evidence, 1; Jurisdiction, 5; Procedure, 7, 13-14. ADMISSION TO BAR. See Attorneys, 1-4; Constitutional Law, III, 1. AD VALOREM TAXES. See Abstention; Procedure, 1. AFFIDAVITS. See Administrative Procedure, 1-3 ; Arrests ; Constitutional Law, VII, 1; Procedure, 4. AGENTS. See Antitrust Acts; Constitutional Law, VII, 2; Evidence, 2; Jurisdiction, 6; Labor Unions; Procedure, 7. AGGRAVATED ASSAULT AND BATTERY. See Injunctions, 4; Procedure, 10. AGREEMENTS. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. AIDING AND ABETTING. See Gambling; Travel Act. AIR FORCE. See Habeas Corpus; Jurisdiction, 4. ALIEN PARENT. See Citizenship; Constitutional Law, IV. ALLEGATIONS. See Constitutional Law, VI, 3; Libel, 2. AMBIGUOUS DOCUMENT. See Constitutional Law, VI, 3; Libel, 2. AMERICAN CITIZENSHIP. See Citizenship; Constitutional Law, IV. INDEX 1211 ANTITRUST ACTS. See also Damages; Evidence, 2; Jurisdiction, 6; Labor Unions; Procedure, 12; Releases; Statute of Limitations; Stay. Norris-LaGuardia Act—Labor unions—Standard oj prooj.—Ordi-nary preponderance-of-evidence standard is applicable in civil antitrust actions against labor unions except with respect to proving authority of individual members, officers, or agents of union to perform on behalf of union the acts complained of, where the “clear proof” standard applies. Ramsey v. Mine Workers, p. 302. APARTMENT SEARCHES. See Constitutional Law, VII, 4-5; Jurisdiction, 5; Procedure, 14. APPEALS. See Constitutional Law, VII, 3; Criminal Appeals Act, 1-2; Jurisdiction, 1; Procedure, 5, 11, 15, 20. APPELLATE RE VIEW. See Procedure, 3. APPLICANTS FOR BAR. See Attorneys, 1-4; Constitutional Law, III, 1. APPLICATION FOR STAY. See Stay. APPLICATIONS FOR WATER RIGHTS. See Jurisdiction, 9; Water Rights, 2. APPROPRIATED WATER RIGHTS. See Jurisdiction, 8-9; Water Rights, 1-2. APTITUDE TESTS. See Civil Rights Act of 1964, 1-2. ARIZONA. See Attorneys, 1; Habeas Corpus; Jurisdiction, 4. ARMED FORCES. See Constitutional Law, III, 2-3; Courts- Martial; Habeas Corpus; Jurisdiction, 2, 4; Sélective Service Act. ARRESTS. See also Constitutional Law, VII, 1, 3-5; Forfeitures, 1-2; Injunctions, 4; Jurisdiction, 5; Procedure, 4, 10, 14-15. Probable cause—Police radio bulletin.—Standards applicable to factual basis for arresting officer’s probable-cause assessment are no less strict than those applicable to magistrate’s assessment. Here the arresting officer had no information to corroborate the report that suspects had committed the crime and fact that warrantless arrest was based on police radio bulletin cannot supply element of probable cause that officer who issued bulletin lacked. Whiteley v. Warden, p. 560. ARREST WARRANTS. See Arrests; Constitutional Law, VII, 1; Procedure, 4. ASSAULT. See Labor-Management Reporting and Disclosure Act, 1-2. 1212 INDEX ASSESSED VALUATION. See Abstention; Procedure, 1. ASSIGNMENT OF EMPLOYEES. See Civil Rights Act of 1964, 1-2. ATHLETIC COMPETITION. See Stay. ATTORNEYS. See also Constitutional Law, III, 1; V; Criminal Appeals Act, 1-2; Indigents, 3; Procedure, 18. 1. Admission to Arizona Bar—Completion of questionnaire— Organizational memberships.—Judgment of Arizona Suprême Court denying applicant’s pétition for an order to Bar Committee to show cause why she should not be admitted, after Committee refused to process her application for failure to answer questionnaire fully, is reversed and remanded. Baird v. State Bar of Arizona, p. 1. 2. Admission to New York Bar—Loyalty—Burden of proof.—New York’s Rule that applicant furnish proof that he “believes in the form of government of the United States and is loyal to such government,” is not constitutiônally invalid in light of appellees’ construction that Rule places no burden of proof on applicant, that “form of government” and “government” refer solely to the Constitution, and that “belief” and “loyalty” mean no more than willing-ness to take constitutional oath and ability to do so in good faith. Law Students Research Council v. Wadmond, p. 154. 3. Admission to New York Bar—Questionnaires—Character and general fitness.—The “character and general fitness” requirement for admission to the New York Bar is not violative of the Constitution. Law Students Research Council v. Wadmond, p. 154. 4. Admission to Ohio Bar—Completion of questionnaire—Organizational memberships.—Judgment of Suprême Court of Ohio approv-ing Bar Committee’s recommendation that applicant not be permit-ted to take the Ohio Bar examination because of failure to answer questions concerning organizational membership, is reversed and remanded. In re Stolar, p. 23. AUTHORITY OF REGIONAL DIRECTORS. See National Labor Relations Act. AUTHORITY OF UNION AGENTS. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. BAIL. See Injunctions, 4; Procedure, 10. BANKRUPTCY ACT. Costs and expenses of administration—Priorities—Withheld fédéral taxes.—Section 64 (a) (1) of the Act, which is an overriding statement of fédéral policy on question of priorities, clearly provides that the first priority in payments from bankrupt estâtes belongs to the costs and expenses of administration incurred in the bankruptcy proceedings. United States v. Randall, p. 513. INDEX 1213 BANKS. See also Standing to Sue. Glass-Steagall Banking Act of 1933—Collective investment funds— Compétition with mutual funds.—Operation of collective investment fund of the kind approved by the Comptroller of the Currency, that is in direct compétition with the mutual fund industry, involves a bank in the underwriting, issuing, selling, and distributing of securities in violation of the Glass-Steagall Act. Investment Co. Institute v. Camp, p. 617. BAR EXAMINEES. See Attorneys, 1-4; Constitutional Law, III, 1. BARGAINING UNITS. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions; National Labor Relations Act. BASKETBALL. See Stay. BELIEFS. See Attorneys, 1-4; Constitutional Law, III, 1-3; Sélective Service Act. BENEFICIARIES. See Constitutional Law, II, 1; Decedents’ Estâtes. BETTORS. See Gambling; Travel Act. BILLS OF COMPLAINT. See Jurisdiction, 7. BIRTH ABROAD. See Citizenship; Constitutional Law, IV. BOILERMAKERS. See Labor-Management Reporting and Dis-closure Act, 1-2. BONDS. See Procedure, 3. BOOKS. See Jurisdiction, 1; Procedure, 11. BOOTLEGGERS. See Constitutional Law, VI, 1; Libel, 1. BREAKING AND ENTERING. See Arrests; Constitutional Law, VII, 1; Procedure, 4. BURDEN OF PROOF. See Attorneys, 2-3; Constitutional Law, III, 1. BURGLARY. See Arrests; Constitutional Law, VII, 1; Procedure, 4. BUSINESS MANAGERS OF UNIONS. See Labor-Management Reporting and Disclosure Act, 1-2. CALIFORNIA. See Constitutional Law, VII, 4-5; Federal-State Relations; Injunctions, 1; Jurisdiction, 3, 5; Procedure, 9, 14. CANADA. See Damages; Jurisdiction, 7; Procedure, 12; Releases; Statute of Limitations. CANDIDATES FOR PUBLIC OFFICE. See Constitutional Law, VI, 1-2; Libel, 1; Public Officiais. 1214 INDEX CASE IN CHIEF. See Evidence, 1; Procedure, 13. CERTIORARI. See Procedure, 5, 20. CHAIN OF COMMAND. See Habeas Corpus; Jurisdiction, 4. CHANGEE CIRCUMSTANCES. See Procedure, 3. “CHARACTER AND GENERAL FITNESS.’’ See Attorneys, 2-3; Constitutional Law, III, 1. CHEMICAL COMPANIES. See Jurisdiction, 7. CHICAGO. See Injunctions, 4; Procedure, 10. CHICAGO POLICEMEN. See Constitutional Law, VI, 3; Libel, 2. CHILDREN. See Constitutional Law, II, 1; Decedents’ Estâtes. CHILLING EFFECT. See Attorneys, 2-3; Constitutional Law, III, 1. CITIZENSHIP. See also Constitutional Law, IV. Immigration and Nationality Act of 1952—Loss of citizenship— Birth abroad.—Congress has power to impose condition subséquent of résidence in this country on appellee, who does not corne within Fourteenth Amendment’s définition of citizens as those “boni or naturalized in the United States,” and its imposition is not unreason-able, arbitrary, or unlawful. Rogers v. Bellei, p. 815. CIVIL RIGHTS. See Attorneys, 2-3; Constitutional Law, III, 1; Public Schools. CIVIL RIGHTS ACTIVITIES. See Habeas Corpus; Jurisdiction, 4. CIVIL RIGHTS ACT OF 1964. 1. Employment practices—Discrimination—Job performance.—Act requires élimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on basis of race, and if, as here, an employment practice that opérâtes to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding employer’s lack of discriminatory intent. Griggs v. Duke Power Co., p. 424. 2. Personnel testing—Discrimination—Job performance.—Act does not preclude use of testing or measuring procedures, but it does proscribe giving them controlling force unless they are demonstrably a reasonable measure of job performance. Griggs v. Duke Power Co., p. 424. CIVIL RIGHTS COMMISSION REPORTS. See Constitutional Law, VI, 3; Libel, 2. INDEX 1215 CLAYTON ACT. See Damages; Procedure, 12; Releases; Statute of Limitations. CLEAR PROOF. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. COAL MINE OPERATORS. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. COLLATERAL PROCEEDINGS. See Constitutional Law, VII, 3; Procedure, 15. COLLECTIVE INVESTMENT FUNDS. See Banks; Standing to Sue. COLORADO. See Jurisdiction, 8-9; Water Rights, 1-2. COLORADO RIVER. See Jurisdiction, 8; Water Rights, 1. COMMANDING OFFICERS. See Habeas Corpus; Jurisdiction, 4. COMMUNIST PARTY. See Attorneys, 1, 4. COMPENSATION TO LAWYERS. See Constitutional Law, V. COMPETITION. See Antitrust Acts; Banks; Evidence, 2; Jurisdiction, 6; Labor Unions; Standing to Sue. COMPLAINTS. See Arrests; Constitutional Law, VII, 1; Procedure, 4. COMPTROLLER OF THE CURRENCY. See Banks; Standing to Sue. CONCLUSORY COMPLAINTS. See Arrests; Constitutional Law, VII, 1; Procedure, 4. CONDITIONAL PRIVILEGE. See Constitutional Law, VI, 1; Libel, 1. CONDITIONS OF EMPLOYMENT. See Civil Rights Act of 1964, 1-2. CONDITION SUBSEQUENT. See Citizenship; Constitutional Law, IV. CONNECTICUT. See Constitutional Law, I, 2; Divorce; Indigents, 1. CONSCIENTIOUS OBJECTORS. See Constitutional Law, III, 2-3; Criminal Appeals Act, 1-2; Sélective Service Act. CONSCRIPTION. See Constitutional Law, III, 2-3; Sélective Service Act. CONSENT TO BE JOINED. See Jurisdiction, 8-9; Water Rights, 1-2. 1216 INDEX CONSPIRACIES. See Antitrust Acts; Constitutional Law, I, 1; VIII, 3; Evidence, 2; Jurisdiction, 6; Labor Unions; National Eirearms Act, 1-2. CONSTITUTIONAL LAW. See also Abstention; Arrests; Attorneys, 2-3; Citizenship; Decedents’ Estâtes; Declaratory Judg-ments; Divorce; Evidence, 1; Federal-State Relations; For-feitures, 1-2; Indigents, 1-3; Injunctions, 1-4; Jurisdiction, 3, 5; Libel, 1-2; National Firearms Act, 1-2; Procedure, 1, 4, 6-10, 13-15, 18-19; Public Officiais; Punishment; Sélective Service Act. I. Due Process. 1. Amended National Firearms Act—Intent.—The amended Act’s prohibition against a person’s “receiv[ing] or posssess[ing] a firearm which is not registered to him,” requires no spécifie intent and the absence of such a requirement in this essentially regulatory statute in the area of public safety does not violate due process requirements either as respects the substantive count or the conspiracy count. United States v. Freed, p. 601. 2. Inability to pay court fees and costs—Divorce proceedings.— In view of basic position of marriage in our society and state monop-olization of means for dissolving that relationship, due process pro-hibits Connecticut from denying, solely because of inability to pay court fees and costs, access to its courts to indigents who, in good faith, seek judicial dissolution of their marriage. Boddie v. Connecticut, p. 371. II. Equal Protection of the Laws. 1. Descent and distribution—Illegitimate children.—Louisiana statutory intestate succession scheme is within the State’s power to establish rules for the protection and strengthening of family life and for disposition of property, and in view of various statutory alternatives did not constitute an insurmountable barrier to illegitimate children. Labine v. Vincent, p. 532. 2. N onpayment of traffic fines—Imprisonment.—It is a déniai of equal protection to limit punishment to payment of a fine for those who are able to pay it but to couvert the fine to imprisonment for those who are unable to pay it. Tate v. Short, p. 395. III. First Amendment. 1. Admission to New York Bar.—The “character and general fitness” requirement for admission to New York Bar is not violative of the Constitution. New York’s carefully administered screening System does not necessarily resuit in chilling the exercise of con- INDEX 1217 CONSTITUTIONAL LAW—Continued. stitutional freedoms, and whether different policy might be wiser rests with State’s policymaking bodies. Law Students Research Council v. Wadmond, p. 154. 2. Establishment of Religion Clause—Conscientious objectors.— Section 6 (j) of the Military Sélective Service Act of 1967 does not violate the Establishment Clause as the section on its face does not discriminate on basis of religious affiliation or belief, and there are valid neutral reasons, with emphasis on the maintenance of fairness in the administration of military conscription, for the congressional limitation of the exemption to “war in any form.” Gillette v. United States, p. 437. 3. Free Exercise Clause—Conscientious objectors.—Section 6 (j) of the Military Sélective Service Act of 1967 does not violate the Free Exercise Clause, as it is not designed to interfère with any religious practice and does not penalize any theological position; and any incidental burdens felt by petitioners are justified by substantial governmental interests relating to military conscription. Gillette v. United States, p. 437. IV. Fourteenth Amendment. Loss of citizenship—Birth abroad.—Congress has power to impose condition subséquent of résidence in this country on appellee, who does not corne within Fourteenth Amendment’s définition of citizens as those “born or naturalized in the United States,” and its imposition is not unreasonable, arbitrary, or unlawful. Rogers v. Bellei, p. 815. V. Freedom of Association. Injured railroad workers—Legal services.—Injunction issued against union in this case violated its right under First and Fourteenth Amendments to engage in group activity to enable its members to meet costs of legal représentation and otherwise to secure meaningful access to the courts. United Transportation Union v. Michigan Bar, p. 576. VI. Freedom of the Press. 1. Candidates for public office—Libel.—Publications concerning candidates for public office must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office. Monitor Patriot Co. v. Roy, p. 265. 2. Charge of criminal conduct—Political candidates.—Charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official’s or a candidate’s fitness for purpose of 1218 INDEX CONSTITUTIONAL LAW—Continuée!. applying the “knowing falsehood or reckless disregard” rule of New York Times Co. v. Sullivan, 376 U. S. 254. Monitor Patriot Co. v. Roy, p. 265; Ocala Star-Banner Co. v. Damron, p. 295. 3. Magazine article—Interprétation of Civil Rights Commission report.—Magazine’s omission of word “alleged” amounted to adoption of one of several rational interprétations of Civil Rights Commission report bristling with ambiguities, and while the choice might reflect misconception, it was not enough to create jury issue of “malice” under rule of New York Times Co. v. Sullivan, 376 U. S. 254, as it would impose stricter standard of liability on errors of interprétation than on errors of historié fact. Time, Inc. v. Pape, p. 279. VII. Search and Seizure. 1. Arrest warrant—Sheriff’s complaint.—Petitioner’s arrest violated his rights and the evidence seized incident thereto should hâve been excluded from his trial, as the complaint, which did not mention that the sheriff acted on an informer’s tip, was merely conclusory and could not support the independent judgment of a disinterested magistrate. Whiteley v. Warden, p. 560. 2. Electronic eavesdropping—Informer.—Court of Appeals’ holding that evidence of incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of transmitter which informer consented to wear during meetings with respondent was inadmissible under Fourth Amendment, is reversed. United States v. White, p. 745. 3. Incident to arrest—Retroactivity.—Court of Appeals’ holding that intervening decision in Chimel v. California, 395 U. S. 752, narrowing scope of permissible searches incident to arrest, was not to be retroactively applied to searches antedating the date it was decided, is affirmed. Williams v. United States, p. 646. 4. Probable cause—Incident to arrest.—Arrest and search were valid under Fourth Amendment, since police had probable cause to arrest Hill and reasonably believed arrestee was Hill. Accordingly, they were entitled to do what law allowed them to do if arrestee was in fact Hill, that is, to search incident to arrest and to seize evidence of crime they had probable cause to believe Hill committed. Hill v. California, p. 797. 5. Retroactivity.—Chimel v. California, 395 U. S. 752, is inapplicable to searches antedating that decision, regardless of whether case is on direct or collateral review or involves state or fédéral prisoners. Hill v. California, p. 797. INDEX 1219 CONSTITUTIONAL LAW—Continued. VIII. Self-Incrimination. 1. Forfeiture proceeding—Gambling tax.—The Fifth Amendment privilège may properly be invoked here since the forfeiture statutes, when viewed in their entirety, are intended to penalize only persons significantly involved in a criminal enterprise. United States v. U. S. Coin & Currency, p. 715. 2. Gambling income—Wagering tax forma—Retroactivity.—Court of Appeals’ holding that Marchetti v. United States, 390 U. S. 39, and Grosso v. United States, 390 U. S. 62, would not be applied retroactively to overturn earlier income tax évasion conviction based on then-constitutional principles permitting introduction in evidence of wagering tax forms, is affirmed. Mackey v. United States, p. 667. 3. National Firearms Act—Amended statute.—The scheme of the amended Act, which significantly alters the scheme presented in Haynes v. United States, 390 U. S. 85, does not involve any violation of the Self-Incrimination Clause of the Fifth Amendment. The amended Act fully protects a person against incrimination for past or présent violations and créâtes no substantial hazards of future incrimination. United States v. Freed, p. 601. CONSTITUTIONAL OATHS. See Attorneys, 2-3 ; Constitutional Law, III, 1. CONSTRUCTION OF THE STATUTE. See Criminal Appeals Act, 1-2. CONTAMINATION. See Jurisdiction, 7. CONVERSATIONS. See Constitutional Law, VII, 2; Procedure, 7. CORROBORATION. See Arrests; Constitutional Law, VII, 1; Procedure, 4. COSTS. See Constitutional Law, I, 2; Divorce; Indigents, 1. COSTS AND EXPENSES OF BANKRUPTCY. See Bankruptcy Act. COUNSEL. See Constitutional Law, V; Criminal Appeals Act, 1-2; Evidence, 1; Indigents, 3; Procedure, 18. COUNTERCLAIMS. See Damages; Procedure, 12; Releases; Statute of Limitations. COUNTY TAX ASSESSORS. See Constitutional Law, VI, 2; Libel, 1; Public Officiais. COURT FEES AND COSTS. See Constitutional Law, I, 2; Divorce; Indigents, 1. 1220 INDEX COURT OF APPEALS. See Procedure, 20. COURTS. See Constitutional Law, I, 2; Declaratory Judgments; Divorce; Federal-State Relations; Indigents, 1; Injunctions, 1-2; Jurisdiction, 3; Procedure, 6, 9. COURTS-MARTIAL. See also Jurisdiction, 2. Crime on military base—Service connected.—An offense committed by a serviceman on a military post that violâtes the security of a person or of property there is service connected and may be tried by a court-martial. Relford v. U. S. Disciplinary Commandant, p. 355. CREATING DISSENSION. See Labor-Management Reporting and Disclosure Act, 1-2. CREDIBILITY. See Evidence, 1; Procedure, 13. CREDITORS. See Bankruptcy Act. CRIMINAL ANARCHY. See Declaratory Judgments; Injunctions, 2; Procedure, 6. CRIMINAL APPEALS ACT. 1. Jurisdiction—“Construction oj the statute” provision—Sélective Service régulation.—This Court has no jurisdiction of the appeal under the “construction of the statute” provision since the interrelation of the régulation and the Military Sélective Service Act of 1967 fell short of that required for the dismissal to hâve been based on the construction of the statute. United States v. Weller, p. 254. 2. Jurisdiction—“Motion in bar” provision—Sélective Service régulation.—“Motion in bar” provision applies only when défendant, while not denying commission of the offense, daims that an ex-traneous factor forecloses prosecution. That provision is inapplicable here since appellee contends that his refusai to submit to induction was not a crime because of the déniai of counsel by his draft board. United States v. Weller, p. 254. CRIMINAL CONDUCT. See Constitutional Law, VI, 1-2; Libel, 1; Public Officiais. CRIMINAL ENTERPRISES. See Constitutional Law, VIII, 1; Forfeitures, 1-2; Procedure, 16. CRIMINAL LAW. See Arrests; Constitutional Law, I, 1; II, 2; III, 2-3; VII, 1-5; VIII, 2-3; Courts-Martial; Criminal Appeals Act, 1-2; Declaratory Judgments; Evidence, 1; Federal-State Relations; Gambling; Indigents, 2-3; Injunctions, 1-4; Jurisdiction, 1-2, 5; National Firearms Act, 1-2; Procedure, 4-7, 9-11, 13-15, 17-18, 20; Punishment; Sélective Service Act; Travel Act. INDEX 1221 CRIMINAL PROSECUTION. See Declaratory Judgments; Fed-eral-State Relations; Injunctions, 1-4; Jurisdiction, 3; Procedure, 6, 8-10. CRIMINAL SYNDICALISM ACT. See Federal-State Relations; Injunctions, 1; Jurisdiction, 3; Procedure, 9. CRYSTAL CITY, FLORIDA. See Constitutional Law, VI, 2; Libel, 1; Public Officiais. CURRENCY. See Constitutional Law, VIII, 1; Forfeitures, 1-2; Procedure, 16. CUSTODIANS. See Habeas Corpus; Jurisdiction, 4. DAMAGES. See also Constitutional Law, VI, 1-3; Labor-Man-agement Reporting and Disclosure Act, 1-2; Libel, 1-2; Procedure, 12; Public Officiais; Releases; Statute of Limitations. Antitrust suit—Statute of limitations.—Plaintiff in antitrust suit may recover damages occurring within the statutory limitation period that are the resuit of conduct occurring prior thereto if, at the time of the conduct, those damages were spéculative, uncertain, or otherwise incapable of proof. Zenith Radio Corp. v. Hazeltine Research, p. 321. DAMAGE SUITS. See Constitutional Law, V. DEATH. See Procedure, 5. DEBTOR AND CREDITORS. See Bankruptcy Act. DEBTOR IN POSSESSION. See Bankruptcy Act. DECEDENTS’ ESTATES. See also Constitutional Law, II, 1. Intestate succession in Louisiana—Illegitimate children—Equal protection of the laws.—Louisiana statutory intestate succession scheme is within the State’s power to establish rules for the protection and strengthening of family life and for disposition of property, and in view of various statutory alternatives did not constitute an insurmountable barrier to illegitimate children. Labine v. Vincent, p. 532. DECLARATORY JUDGMENTS. See also Injunctions, 2, 4; Procedure, 6, 10. Federal-state relations—State criminal prosecution.—Same principles that govern propriety of fédéral injunctions of state criminal proceedings govern issuance of fédéral declaratory judgments in connection with such proceedings, and appellants here should hâve been denied declaratory relief without considération of the merits of their constitutional daims. Samuels v. Mackell, p. 66. DECLINATION OF JURISDICTION. See Jurisdiction, 7. 1222 INDEX DEFAMATORY PUBLICATIONS. See Constitutional Law, VI, 1-3; Libel, 1-2; Public Officiais. DEFENSES. See Damages; Procedure, 12; Releases; Statute of Limitations. DELEGATION OF AUTHORITY. See National Labor Relations Act. DENIAL OF COUNSEL. See Criminal Appeals Act, 1-2. DEPARTMENT OF TRANSPORTATION ACT. See Administrative Procedure, 1-3. DESCENT AND DISTRIBUTION. See Constitutional Law, II, 1; Decedents’ Estâtes. DESTRUCTION OF BUSINESS. See Procedure, 2. DIRECT APPEALS. See Constitutional Law, VII, 3; Procedure, 15. DIRECT REVIEW. See Procedure, 5. DISCIPLINARY PROCEEDINGS. See Labor-Management Re-porting and Disclosure Act, 1-2. DISCRETION. See Administrative Procedure, 1-3; Damages; Jurisdiction, 7; Procedure, 12; Releases; Statute of Limitations. DISCRIMINATION. See Civil Rights Act of 1964, 1-2; Constitutional Law, II, 1; Decedents’ Estâtes. DISSENSION IN UNION. See Labor-Management Reporting and Disclosure Act, 1-2. DISTRIBUTORS. See Constitutional Law, VI, 1; Libel, 1. DISTRICT COURTS. See Habeas Corpus; Jurisdiction, 1, 4; Labor-Management Reporting and Disclosure Act, 1-2; Procedure, 11. DIVORCE. See also Constitutional Law, I, 2; Indigents, 1. Inability to pay court fees and costs—Due process.—In view of basic position of marriage in our society and state monopolization of means for dissolving that relationship, due process prohibits Connecticut from denying, solely because of inability to pay court fees and costs, access to its courts to indigents who, in good faith, seek judicial dissolution of their marriage. Boddie v. Connecticut, p. 371. DOUBLE-RENT BONDS. See Procedure, 3. DRAFT BOARDS. See Criminal Appeals Act, 1-2. INDEX 1223 DRUGS. See Constitutional Law, VII, 2-5; Evidence, 1; Jurisdiction, 5; Procedure, 7, 13-15. DUAL CITIZENSHIP. See Citizenship; Constitutional Law, IV. DUE PROCESS. See Constitutional Law, I; VIII, 3; Decedents’ Estâtes; Declaratory Judgments; Divorce; Indigents, 1; In-junctions, 2; National Firearms Act, 1-2; Procedure, 6. EAGLE RIVER. See Jurisdiction, 9; Water Rights, 2. EAVESDROPPING. See Constitutional Law, VII, 2; Procedure, 7. EDUCATIONAL TAXES. See Abstention; Procedure, 1, 19. ELECTRONIC EAVESDROPPING. See Constitutional Law, VII, 2; Procedure, 7. EL PASO. See Public Schools. EMPLOYER AND EMPLOYEES. See Civil Rights Act of 1964, 1-2; National Labor Relations Act. EMPLOYERS. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. EMPLOYMENT QUALIFICATIONS. See Civil Rights Act of 1964, 1-2. ENJOINING STATE PROSECUTIONS. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-4; Jurisdiction, 3; Procedure, 6, 8-10. ENLISTMENT CONTRACTS. See Habeas Corpus; Jurisdiction, 4. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. See Civil Rights Act of 1964, 1-2. EQUAL PROTECTION OF THE LAWS. See Abstention; Constitutional Law, II; Decedents’ Estâtes; Declaratory Judgments; Indigents, 1-2; Injunctions, 2; Procedure, 6; Punishment. EQUITABLE RELIEF. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-4; Jurisdiction, 3; Procedure, 6, 8-10. ESTABLISHMENT OF RELIGION CLAUSE. See Constitutional Law, III, 2-3; Sélective Service Act. EVASION OF TAXES. See Constitutional Law, VIII, 2; Procedure, 17. EVICTIONS. See Procedure, 3. 415-649 0 - 72 - 70 1224 INDEX EVIDENCE. See also Administrative Procedure, 1-3; Antitrust Acts; Arrests; Constitutional Law, VII, 1; Damages; Jurisdiction, 6; Labor Unions; Procedure, 4, 12-13; Releases; Statute of Limitations. 1. No Miranda warnings—Impeachment—Admissibility of statement.—Statement inadmissible against défendant in prosecution’s case in chief because of lack of procédural safeguards required by Miranda v. Arizona, 384 U. S. 436, may, if its trustworthiness satisfies legal standards, be used for impeachment purposes to attack credibility of defendant’s trial testimony. Harris v. New York, p. 222. 2. Preponderance-of-evidence standard—Antitrust action against labor union—Clear proof.—Ordinary preponderance-of-evidence standard is applicable in civil antitrust actions against labor unions except with respect to proving authority of individual members, officers, or agents of union to perform on behalf of union the acts complained of, where the “clear proof” standard applies. Ramsey v. Mine Workers, p. 302. EXAMINATIONS. See Attorneys, 2-3; Constitutional Law, III, 1. EXEMPTIONS. See Administrative Procedure, 1-3; Antitrust Acts; Banks; Constitutional Law, III, 2-3; Evidence, 2; Jurisdiction, 6; Labor Unions; Sélective Service Act; Standing to Sue. EXERCISE OF JURISDICTION. See Jurisdiction, 7. EXORBITANT BAIL. See Injunctions, 4; Procedure, 10. EXPRESS AGREEMENTS. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. EXPULSION FROM UNION. See Labor-Management Reporting and Disclosure Act, 1-2. FAIRNESS. See Constitutional Law, III, 2-3; Sélective Service Act. FALSE STORIES. See Constitutional Law, VI, 2; Libel, 1; Public Officiais. FALSIFICATION. See Constitutional Law, VI, 3; Libel, 2. FATHERS. See Constitutional Law, II, 1; Decedents’ Estâtes. “FEASIBLE AND PRUDENT” ALTERNATIVE. See Admin-istrative Procedure, 1-3. FEDERAL-AID HIGHWAY ACT OF 1968. See Administrative Procedure, 1-3. INDEX 1225 FEDERAL CRIMES. See Gambling; Travel Act. FEDERAL EMPLOYERS’ LIABILITY ACT. See Constitutional Law, V. FEDERAL HIGHWAY ADMINISTRATOR. See Administrative Procedure, 1-3. FEDERAL PRISONERS. See Constitutional Law, VII, 3; Procedure, 15. FEDERAL-STATE RELATIONS. See also Abstention; Declaratory Judgments; Gambling; Injunctions, 1-4; Jurisdiction, 3, 7-9; Procedure, 1, 6, 8-10, 19; Public Schools; Travel Act; Water Rights, 1-2. Enjoining state criminal prosecution—Irréparable injury.—Fédéral courts will not enjoin pending state criminal prosecutions except under extraordinary circumstances where danger of irréparable loss is both great and immédiate in that there is a threat to plaintiff’s federally protected rights that cannot be eliminated by his defense against a single prosecution. Younger v. Harris, p. 37; Samuels v. Mackell, p. 66; Dyson v. Stein, p. 200. FEES. See Constitutional Law, V. FEES AND COSTS. See Constitutional Law, I, 2; Divorce; Indigents, 1. FIFTH AMENDMENT. See Attorneys, 1-4; Constitutional Law, I, 1; III, 1; VII, 4—5; VIII, 3; Forfeitures, 1-2; Jurisdiction, 5; National Firearms Act, 1-2; Procedure, 14. FILMS. See Injunctions, 3; Procedure, 8. FINANCING EDUCATION. See Abstention; Procedure, 1, 19. FINDINGS. See Administrative Procedure, 1-3. FINDINGS AND CONCLUSIONS. See Damages; Procedure, 12; Releases; Statute of Limitations. FINES. See Constitutional Law, II, 2; Indigents, 2; Punishment. FINGERPRINTS. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. FIREARMS. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. FIRST AMENDMENT. See Attorneys, 1-4; Constitutional Law, III; V-VI; Declaratory Judgments; Federal-State Relations; Injunctions, 1-4; Jurisdiction, 3; Libel, 1-2; Procedure, 6, 8-10; Public Officiais; Sélective Service Act. 1226 INDEX FITNESS FOR OFFICE. See Constitutional Law, VI, 1-2; Libel, 1; Public Officiais. FLORIDA. See Abstention; Constitutional Law, VI, 2; Gambling; Libel, 1; Procedure, 1, 19; Public Officiais; Travel Act. FOREIGN-BORN CITIZENS. See Citizenship; Constitutional Law, IV. FORFEITURES. See also Constitutional Law, VIII, 1; Procedure, 16. 1. Retroactivity—Gambling tax—Self-incrimination.—Decisions in Marchetti v. United States, 390 U. S. 39, and Grosso v. United States, 390 U. S. 62, which held that gamblers had the Fifth Amendment right to remain silent despite the statutory requirement that they submit reports which could incriminate them, hâve rétroactive effect in a forfeiture proceeding under 26 U. S. C. § 7302. United States v. U. S. Coin and Currency, p. 715. 2. Self-incrimination—Gambling taxes.—The Fifth Amendment privilège may properly be invoked here since the forfeiture statutes, when viewed in their entirety, are intended to penalize only persons significantly involved in a criminal enterprise. United States v. U. S. Coin & Currency, p. 715. FORMAL FINDINGS. See Administrative Procedure, 1-3. FOURTEENTH AMENDMENT. See Abstention; Arrests; Attorneys, 1-4; Citizenship; Constitutional Law, I-II; III, 1; IV-V; VI, 1-2; VII, 1, 4-5; Decedents’ Estâtes; Declaratory Judgments; Divorce; Evidence, 1; Federal-State Relations; Indigents, 1-3; Injunctions, 1-4; Jurisdiction, 1, 3, 5; Libel, 1; Procedure, 1, 4, 6, 8-11, 13-14, 18-19; Punishment. FOURTH AMENDMENT. See Arrests; Constitutional Law, VII; Jurisdiction, 5; Procedure, 4, 7, 14-15. FREEDOM OF ASSEMBLY. See Declaratory Judgments; Injunctions, 2; Procedure, 6. FREEDOM OF ASSOCIATION. See Attorneys, 1-4; Constitutional Law, III, 1; V. FREEDOM OF EXPRESSION. See Declaratory Judgments ; Federal-State Relations; Injunctions, 1-3; Jurisdiction, 3; Procedure, 6, 8-9. FREEDOM OF SPEECH. See Attorneys, 1-4; Constitutional Law, III, 1. FREEDOM OF THE PRESS. See Constitutional Law, VI; Jurisdiction, 1; Libel, 1-2; Procedure, 11; Public Officiais. INDEX 1227 FREE EXERCISE CLAUSE. See Constitutional Law, III, 2-3; Sélective Service Act. FULL AND FAIR HEARINGS. See Labor-Management Reporting and Disclosure Act, 1-2. FUNDS. See Banks; Standing to Sue. FUTURE INCRIMINATION. See Constitutional Law, I, 1 ; VIII, 3; National Firearms Act, 1-2. GAMBLING. See also Travel Act. Travel Act—Out-of-state bettors.—Conducting a gambling operation frequented by out-of-state bettors does not, without more, con-stitute a violation of 18 U. S. C. § 1952, the Travel Act. Rewis v. United States, p. 808. GAMBLING INCOME. See Constitutional Law, VIII, 2; Procedure, 17. GAMBLING TAXES. See Constitutional Law, VIII, 1; Forfeit-ures, 1-2; Procedure, 16. GENERAL VERDICTS. See Labor-Management Reporting and Disclosure Act, 1-2. GEORGIA. See Gambling; Habeas Corpus; Indigents, 3; Jurisdiction, 4; Procedure, 18; Travel Act. GLASS-STEAGALL BANKING ACT OF 1933. See Banks; Standing to Sue. GOOD FAITH. See Attorneys, 1-4; Constitutional Law, I, 2; III, 1; VII, 4-5; Divorce; Indigents, 1; Jurisdiction, 5; Procedure, 14. GOOD-FAITH PROSECUTIONS. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-2; Jurisdiction, 3; Procedure, 9. GOVERNMENT AGENTS. See Constitutional Law, VII, 2; Procedure, 7. GOVERNMENT’S WATER RIGHTS. See Jurisdiction, 8-9; Water Rights, 1-2. GRENADES. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. GROUP ACTIVITIES. See Constitutional Law, V. GUIDELINES. See Civil Rights Act of 1964, 1-2. GUNS. See Constitutional Law, VII, 4-5; Jurisdiction, 5; Procedure, 14. 1228 INDEX HABEAS CORPUS. See also Arrests; Constitutional Law, VII, 1; Indigents, 3; Jurisdiction, 4; Procedure, 4, 18. Jurisdiction—Custodian of serviceman—Résidence.—District Court did not hâve jurisdiction to entertain habeas corpus application by Air Force enlisted man in Arizona on temporary duty orders, as no custodian, neither the commanding officer at Moody Air Force Base in Georgia nor anyone in chain of command, was a résident of Arizona. Schlanger v. Seamans, p. 487. HABITUAL CRIMINALS. See Arrests; Constitutional Law, VII, 1; Procedure, 4. HAÏR LENGTH. See Public Schools. HAND GRENADES. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. HARASSMENT. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-2, 4; Jurisdiction, 3; Procedure, 6, 9-10. HEARINGS. See Abstention; Labor-Management Reporting and Disclosure Act, 1-2; Procedure, 19. HEROIN. See Constitutional Law, VII, 3; Evidence, 1; Procedure, 13, 15. HIGH SCHOOL DIPLOMAS. See Civil Rights Act of 1964, 1-2. HIGHWAYS. See Administrative Procedure, 1-3. IDENTITY. See Constitutional Law, VII, 4-5; Jurisdiction, 5; Procedure, 14. ILLEGITIMATE CHILDREN. See Constitutional Law, II, 1 ; De-cedents’ Estâtes. ILLINOIS. See Injunctions, 4; Procedure, 10. IMMIGRATION AND NATIONALITY ACT OF 1952. See Citizenship; Constitutional Law, IV. IMPEACHMENT. See Evidence, 1; Procedure, 13. IMPLIED AGREEMENTS. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. IMPRISONMENT. See Constitutional Law, II, 2; Indigents, 2; Punishment. INADMISSIBLE EVIDENCE. See Evidence, 1; Procedure, 13. INCIDENT TO ARREST. See Arrests; Constitutional Law, VII, 1, 3-5; Jurisdiction, 5; Procedure, 4, 14-15. INDEX 1229 INCOME TAXES. See Bankruptcy Act; Constitutional Law, VIII, 2; Procedure, 17. INCRIMINATION. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. INDIGENTS. See also Constitutional Law, I, 2; Divorce; Procedure, 18; Punishment. 1. Divorce proceedings—Inability to pay court fees and costs— Due process.—In view of basic position of marriage in our society and state monopolization of means for dissolving that relationship, due process prohibits Connecticut from denying, solely because of inability to pay court fees and costs, access to its courts to indigents who, in good faith, seek judicial dissolution of their marriage. Bod-die v. Connecticut, p. 371. 2. Nonpayment of traffic fines—Imprisonment—Equal protection of the laws.—It is a déniai of equal protection to limit punishment to payment of a fine for those who are able to pay it but to convert the fine to imprisonment for those who are unable to pay it. Tate v. Short, p. 395. 3. Right to counsel—Retroactivity.—On this record petitioner proved he was without counsel due to indigency at time of his conviction, and accordingly he is entitled to relief as Gideon v. Wainwright, 372 U. S. 335, is fully rétroactive. Kitchens v. Smith, p. 847. INDUCTION. See Constitutional Law, III, 2-3; Criminal Appeals Act, 1-2; Sélective Service Act. INDUSTRIAL WASTE. See Jurisdiction, 7. INFORMEES. See Constitutional Law, VII, 2; Procedure, 7. INFORMER’S TIP. See Arrests; Constitutional Law, VII, 1; Procedure, 4. INFRINGEMENT SUITS. See Damages; Procedure, 12; Re-leases; Statute of Limitations. INHERITANCE. See Constitutional Law, II, 1; Decedents’ Estâtes. INJUNCTIONS. See also Constitutional Law, V; Declaratory Judgments; Federal-State Relations; Jurisdiction, 3; Procedure, 6, 8-10; Public Schools; Stay. 1. Enjoining state criminal prosecutions—Federal-state relations— Irréparable injury.—Fédéral courts will not enjoin pending state criminal prosecutions except under extraordinary circumstances where danger of irréparable loss is both great and immédiate in that there is a threat to plaintiff’s federally protected rights that 1230 INDEX INJUNCTIONS—Continued. cannot be eliminated by his defense against a single prosecution. Younger v. Harris, p. 37; Samuels v. Mackell, p. 66; Dyson v. Stein, p. 200. 2. Enjoining state criminal prosecutions—Irréparable injury.— Since there was no showing that appellants hâve suffered or will suffer great and immédiate irréparable injury by virtue of their being prosecuted in state courts, where they can make their constitutional contentions, there is no basis for fédéral injunctive relief. Samuels v. Mackell, p. 66; Dyson v. Stein, p. 200. 3. Federal-state relations—Enjoining state criminal prosecution— Obscene film.—District Court made no finding that threat to appellees’ federally protected rights “[could] not be eliminated by [their] defense against a single criminal prosecution,” to meet the great and immédiate irréparable injury requirement before a fédéral injunction of state criminal proceedings can properly issue. Judgment therefore vacated and case remanded. Byrne v. Karalexis, p. 216. 4. Irréparable injury—Federal-state relations—Declaratory judgments.—Since no appellee suffered, or was threatened with great and immédiate irréparable injury and the future application of the statute was merely spéculative, the District Court was not warranted in interfering with state law enforcement by issuance of an injunction or declaratory judgment. Boyle v. Landry, p. 77. INJURED WORKERS. See Constitutional Law, V. IN JURY. See Damages; Procedure, 12; Releases; Statute of Limitations. INSTRUCTIONS TO JURY. See Constitutional Law, VI, 1-2; Libel, 1; Public Officiais. INSTRUCTORS. See Federal-State Relations; Injunctions, 1; Jurisdiction, 3; Procedure, 9. INTELLIGENCE TESTS. See Civil Rights Act of 1964, 1-2. INTENT. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. INTERNAL REVENUE LAWS. See Constitutional Law, VIII, 1; Forfeitures, 1-2; Procedure, 16. INTERNAL REVENUE SERVICE. See Constitutional Law, VIII, 2; Procedure, 17. INTERPRETIVE ARTICLE. See Constitutional Law, VI, 3; Libel, 2. INTERSTATE HIGHWAYS. See Administrative Procedure, 1-3. INDEX 1231 INTERSTATE TRAVEL. See Gambling; Travel Act. INTERVENING LEGISLATION. See Procedure, 3. INTESTATE SUCCESSION. See Constitutional Law, II, 1; De-cedents’ Estâtes. INTIMIDATION. See Injunctions, 4; Procedure, 10. INVESTMENT COMPANIES. See Banks; Standing to Sue. INVESTMENT COMPANY ACT OF 1940. See Banks; Standing to Sue. IRREPARABLE IN JURY. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-4; Jurisdiction, 3; Procedure, 6, 8-10. ISSUING MAGISTRATES. See Arrests; Constitutional Law, VII, 1; Procedure, 4. ITALY. See Citizenship; Constitutional Law, IV. JAIL SENTENCES. See Constitutional Law, II, 2; Indigents, 2; Punishment. JOB PERFORMANCE. See Civil Rights Act of 1964, 1-2. JOB REFERRALS. See Labor-Management Reporting and Dis-closure Act, 1-2. JOINDER OF UNITED STATES. See Jurisdiction, 8-9; Water Rights, 1-2. JUDGES. See Damages; Procedure, 12; Releases; Statute of Limitations. JUDGMENTS. See Jurisdiction, 1; Procedure, 11. JUDICIAL RE VIE W. See Administrative Procedure, 1-3 ; Labor-Management Reporting and Disclosure Act, 1-2. JURIES. See Constitutional Law, VI, 1-3; Libel, 1-2; Public Officiais. JURISDICTION. See also Antitrust Acts; Constitutional Law, VII, 4—5; Courts-Martial; Criminal Appeals Act, 1-2; Evidence, 2; Federal-State Relations; Habeas Corpus; Injunctions, 1; Labor-Management Reporting and Disclosure Act, 1-2; Labor Unions; Procedure, 9, 11, 14; Water Rights, 1-2. 1. Appeals—Ordinances—Procedure.—This Court has no jurisdiction to review on direct appeal the validity of the order declaring local ordinance invalid, since it was a decision of a single fédéral judge and as such was appealable only to the Court of Appeals. Ferez v. Ledesma, p. 82. 2. Crime on military base—Service connected—Court-martial.— An offense committed by a serviceman on a military post that vio- 1232 INDEX JURISDICTION—Continued. lates the security of a person or of property there is service connected and may be tried by a court-martial. Relford v. U. S. Disciplinary Commandant, p. 355. 3. Criminal prosecution — Injunctions-—Spéculative fears.— No basis for équitable jurisdiction on allégations of appellees who hâve not been indicted, arrested, or threatened with prosecution, and the normal course of a state criminal prosecution cannot be blocked on basis of fears of prosecution that are merely spéculative. Younger v. Harris, p. 37. 4. Habeas corpus—Résidence—Custodian of serviceman.—District Court did not hâve jurisdiction to entertain habeas corpus application by Air Force enlisted man in Arizona on temporary duty orders, as no custodian, neither the commanding officer at Moody Air Force Base in Georgia nor anyone in chain of command, was a résident of Arizona. Schlanger v. Seamans, p. 487. 5. Suprême Court—Admissibility of evidence—Not raised below.— Since Hill’s argument that admission into evidence of pages of his diary violated his Fifth Amendment rights was not raised below, it is not properly before this Court. Hill v. California, p. 797. 6. Suprême Court—Argument not made below.—This Court cannot properly consider petitioners’ argument about the construction of the Protective Wage Clause since it is not clear if the contention was made below, and whether, in any event, the record supports it. Ramsey v. Mine Workers, p. 302. 7. Suprême Court—Déclination of original jurisdiction—Water pollution.—Suprême Court déclinés to exercise its original jurisdiction in suit by Ohio against Chemical companies for polluting Lake Erie since issues are bottomed on local law that Ohio courts are competent to consider; several national and international bodies are actively concerned with problems involved here; and nature of case requires resolution of complex, novel and technical factual questions that do not implicate important problems of fédéral law, which are the primary responsibility of the Court. Ohio v. Wyandotte Chemicals Corp., p. 493. 8. Water rights—Colorado courts—Reserved rights of United States.—State court has jurisdiction to adjudicate the reserved water rights of the United States. U. S. v. District Court for Water Div. No. 5, p. 527. 9. Water rights—Government’s reserved rights—Joinder of United States.—Section 666 (a) of Title 43 U. S. C. is an all-inclusive provision subjecting to general adjudication in state proceedings ail rights of the United States to water within a State’s jurisdiction INDEX 1233 JURISDICTION—Continued. regardless of how they were acquired. Any conflict between adjudi-cated rights and reserved rights of the United States, if preserved in the state proceeding, can ultimately be reviewed in this Court. U. S. v. District Court for Eagle County, p. 520. JURY SELECTION. See Declaratory Judgments; Injunctions, 2; Procedure, 6. JUSTIFICATION. See Constitutional Law, VI, 1; Libel, 1. KIDNAPING. See Courts-Martial; Jurisdiction, 2. KNOWING FALSEHOOD. See Constitutional Law, VI, 1-3; Libel, 1-2; Public Officiais. LABOR. See Labor-Management Reporting and Disclosure Act, 1-2; National Labor Relations Act. LABOR MANAGEMENT RELATIONS ACT. See Procedure, 2. LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT. 1. Jurisdiction of District Court—Pre-emption by National Labor Relations Board—Damages for expulsion of union member.—This action was within compétence of District Court, as issues here are whether respondent was denied rights guaranteed him by § 101 (a) (5), and, if so, his conséquent entitlement to damages for that déniai, questions that are irrelevant to the legality of conduct under the National Labor Relations Act. Boilermakers v. Hardeman, p. 233. 2. Union disciplinary action—Expulsion of member—“Full and fair hearing.”—Section 101 (a) (5) does not empower the courts to détermine what conduct may warrant disciplinary action by a union against its members. Statutory “full and fair hearing” requires that charging party provide some evidence at the hearing to support the charges, and here there was sufîicient evidence to support finding that respondent assaulted the union’s business manager as charged. Boilermakers v. Hardeman, p. 233. LABOR UNIONS. See also Antitrust Acts; Evidence, 2; Jurisdiction, 6; Procedure, 2. Wage agreements—Mvlti-employer bargaining units—Antitrust exemption.—'Mine Workers n. Pennington, 381 U. S. 657, is re-affirmed both with respect to holding (1) that union may make wage agreements with multi-employer bargaining unit and in pursuit of own self-interests seek to secure same terms from other employers, and (2) that antitrust exemption is forfeited if union agréés with employer group to impose certain wage scale on other bargaining units, thus joining conspiracy to limit compétition. Ramsey v. Mine Workers, p. 302. 1234 INDEX LAKE ERIE. See Jurisdiction, 7. LANDLORD AND TENANTS. See Procedure, 3. LAW STUDENTS. See Attorneys, 1-4; Constitutional Law, III, 1. LAWYERS. See Attorneys, 1-4; Constitutional Law, III, 1. LEGAL SERVICES. See Constitutional Law, V. LEGISLATIVE PROGRAM. See Abstention; Procedure, 1, 19. LEGITIMATION. See Constitutional Law, II, 1; Decedents’ Estâtes. LENGTH OF HAÏR. See Public Schools. LIBEL. See also Constitutional Law, VI, 1-3; Public Officiais. 1. Charge of criminal conduct—Political candidate—Freedom of the press.—Charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official’s or a candi-date’s fitness for purpose of applying the “knowing falsehood or reckless disregard” rule of New York Times Co. v. Sullivan, 376 U. S. 254. Monitor Patriot Co. v. Roy, p. 265; Ocala Star-Banner Co. v. Damron, p. 295. 2. Magazine article—Interprétation of Civil Rights Commission report—Chicago policeman.—Magazine’s omission of word “alleged” amounted to adoption of one of several rational interprétations of Civil Rights Commission report bristling with ambiguities, and while the choice might reflect misconception, it was not enough to create jury issue of “malice” under rule of New York Times Co. v. Sullivan, 376 U. S. 254, as it would impose stricter standard of liability on errors of interprétation than on errors of historié fact. Time, Inc. v. Pape, p. 279. LIBELOUS PER SE. See Constitutional Law, VI, 2; Libel, 1; Public Officiais. LIMITATION OF ACTIONS. See Procedure, 2. LOCAL TAXES. See Abstention; Procedure, 1, 19. LOSS OF CITIZENSHIP. See Citizenship; Constitutional Law, IV. LOTTERIES. See Gambling; Travel Act. LOUISIANA. See Constitutional Law, II, 1; Decedents’ Estâtes; Jurisdiction, 1; Procedure, 11. LOYALTY. See Attorneys, 1-4; Constitutional Law, III, 1. MAGAZINES. See Constitutional Law, VI, 3; Jurisdiction, 1; Libel, 2; Procedure, 11. INDEX 1235 MAGISTRATES. See Arrests; Constitutional Law, VII, 1; Procedure, 4. MALICE. See Constitutional Law, VI, 1-3; Libel, 1-2; Public Officiais. MARKED BILLS. See Constitutional Law, VII, 3; Procedure, 15. MARRIAGE. See Constitutional Law, I, 2; Divorce; Indigents, 1. MASSACHUSETTS. See Injunctions, 3; Procedure, 8. MAYORS. See Constitutional Law, VI, 2; Libel, 1; Public Officiais. MEMPHIS. See Administrative Procedure, 1-3. MERCURY POLLUTION. See Jurisdiction, 7. MICHIGAN. See Jurisdiction, 7. MICHIGAN BAR. See Constitutional Law, V. MILITARY CONSCRIPTION. See Constitutional Law, III, 2-3; Sélective Service Act. MILITARY PERSONNEL. See Courts-Martial; Jurisdiction, 2. MILITARY RESERVATION. See Courts-Martial; Jurisdiction, 2. MILITARY SELECTIVE SERVICE ACT OF 1967. See Constitutional Law, III, 2-3; Criminal Appeals Act, 1-2; Sélective Service Act. MILITARY SERVICE. See Constitutional Law, III, 2-3; Sélective Service Act. MILLAGE ROLLBACK LAW. See Abstention; Procedure, 1, 19. MINES. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. MINE WORKERS. See Procedure, 2. MIRANDA WARNINGS. See Evidence, 1; Procedure, 13. MISTAKEN IDENTITY. See Constitutional Law, VI, 2; VII, 4-5; Jurisdiction, 5; Libel, 1; Procedure, 14; Public Officiais. MOB-ACTION STATUTE. See Injunctions, 4; Procedure, 10. MONETARY OBLIGATIONS. See Constitutional Law, II, 2; Indigents, 2; Punishment. MONEY. See Constitutional Law, VIII, 1; Forfeitures, 1-2; Procedure, 16. 1236 INDEX MONTHLY ADJUDICATIONS. See Jurisdiction, 8; Water Rights, 1. MOODY AIR FORCE BASE. See Habeas Corpus; Jurisdiction, 4. MOOTNESS. See Procedure, 5, 20. MOTION PICTURES. See Injunctions, 3; Procedure, 8. MOTIONS IN BAR. See Criminal Appeals Act, 1-2. MOTION TO VACATE STAY. See Public Schools. MULTI-EMPLOYER BARGAINING UNITS. See Antitrust Acts ; Evidence, 2; Jurisdiction, 6; Labor Unions. MUNICIPAL ORDINANGES. See Injunctions, 4; Jurisdiction, 1; Procedure, 10-11. MUTUAL FUNDS. See Banks; Standing to Sue. NARCOTICS. See Constitutional Law, VII, 2-5; Procedure, 7, 14-15. NATIONAL BANKS. See Banks; Standing to Sue. NATIONAL BASKETBALL ASSOCIATION. See Stay. NATIONAL BITUMINOUS COAL WAGE AGREEMENT. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. NATIONAL FIREARMS ACT. See also Constitutional Law, I, 1 ; VIII, 3. 1. Amended statute—Intent—Due process.—The amended Act’s prohibition against a person’s “receiv[ing] or possess[ing] a firearm which is not registered to him,” requires no spécifie intent and the absence of such a requirement in this essentially regulatory statute in the area of public safety does not violate due process requirements either as respects the substantive count or the conspiracy count. United States v. Freed, p. 601. 2. Amended statute—Self-incrimination.—The scheme of the amended Act, which significantly alters the scheme presented in Haynes v. United States, 390 U. S. 85, does not in volve any violation of the Self-Incrimination Clause of the Fifth Amendment. The amended Act fully protects a person against incrimination for past or présent violations and créâtes no substantial hazards of future incrimination. United States v. Freed, p. 601. NATIONALITY. See Citizenship; Constitutional Law, IV. INDEX 1237 NATIONAL LABOR RELATIONS ACT. Délégation of authority—Régional directors—Représentation proceedings.—Under § 3 (b) of the Act the NLRB is permitted to dele-gate to the régional director its authority to détermine the appropriate bargaining unit, and plenary review by the NLRB of such détermination is not mandatory. Magnésium Casting Co. v. NLRB, p. 137. NATIONAL LABOR RELATIONS BOARD. See Labor-Management Reporting and Disclosure Act, 1-2. NATURAL CHILDREN. See Constitutional Law, II, 1; Dece-dents’ Estâtes. NEGROES. See Civil Rights Act of 1964, 1-2; Injunctions, 4; Procedure, 10. NET-WORTH METHOD. See Constitutional Law, VIII, 2; Procedure, 17. NEW HAMPSHIRE. See Constitutional Law, VI, 1-2; Libel, 1. NEWSPAPERS. See Constitutional Law, VI, 1-2; Injunctions, 1-2; Libel, 1; Procedure, 9; Public Officiais. NEW YORK. See Attorneys, 2-4; Constitutional Law, III, 1; Declaratory Judgments; Evidence, 1; Injunctions, 2; Procedure, 6, 13. NON-MILITARY OFFENSES. See Courts-Martial; Jurisdiction, 2. NONPAYMENT OF FINES. See Constitutional Law, II, 2; Indigents, 2; Punishment. NORRIS-LaGUARDIA ACT. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. NUISANCES. See Jurisdiction, 7. OATHS. See Attorneys, 1-4; Constitutional Law, III, 1. OBSCENITY. See Injunctions, 3; Jurisdiction, 1; Procedure, 8, 11. OCALA, FLORIDA. See Constitutional Law, VI, 2; Libel, 1; Public Officiais. OFFENSES. See Courts-Martial; Jurisdiction, 2. OFFICIAL CONDUCT. See Constitutional Law, VI, 1-3; Libel, 1-2; Public Officiais. OHIO. See Attorneys, 4; Jurisdiction, 7. 1238 INDEX OPEN-END INVESTMENT COMPANIES. See Banks; Standing to Sue. ORDERS. See Jurisdiction, 1; Procedure, 11. ORDINANCES. See Injunctions, 4; Jurisdiction, 1; Procedure, 10-11. ORGANIZATIONAL MEMBERSHIPS. See Attorneys, 1-4; Constitutional Law, III, 1. ORIGINAL JURISDICTION. See Jurisdiction, 7. OUT-OF-STATE BETTORS. See Gambling; Travel Act. OVERBREADTH. See Attorneys, 1-4; Constitutional Law, III, 1 ; Federal-State Relations; Injunctions, 1, 4; Jurisdiction, 3; Procedure, 9-10. OVERTON PARK. See Administrative Procedure, 1-3. PARENTAGE. See Citizenship; Constitutional Law, IV. PARENTS. See Constitutional Law, II, 1; Decedents’ Estâtes. PARISH ORDINANCES. See Jurisdiction, 1; Procedure, 11. PARKS. See Administrative Procedure, 1-3. PARTICIPATION IN WAR. See Constitutional Law, III, 2-3; Sélective Service Act. PARTICULAR WARS. See Constitutional Law, III, 2-3; Sélective Service Act. PARTIES. See Damages; Procedure, 12; Releases; Statute of Limitations. PASSPORTS. See Citizenship; Constitutional Law, IV. PATENT INFRINGEMENT. See Damages; Procedure, 12; Releases; Statute of Limitations. PATENT POOLS. See Damages; Procedure, 12; Releases; Statute of Limitations. PAUPERS. See Constitutional Law, I, 2; II, 2; Divorce; Indigents, 1-3; Procedure, 18; Punishment. PERJURY. See Attorneys, 1, 4; Constitutional Law, VI, 2; Libel, 1; Public Officiais. PERSONAL APPEARANCES. See Criminal Appeals Act, 1-2. PERSONNEL TESTING. See Civil Rights Act of 1964, 1-2. PETITIONS FOR CERTIORARI. See Procedure, 5, 20. PETITIONS FOR REHEARING. See Procedure, 5, 20. INDEX 1239 PHOTOGRAPHS. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. PLAYER DRAFT RULES. See Stay. PLAYOFF GAMES. See Stay. PLENARY RE VIEW. See National Labor Relations Act. POLICE. See Constitutional Law, VII, 4-5; Jurisdiction, 5; Procedure, 14. POLICE OFFICERS. See Constitutional Law, VI, 3; Libel, 2. POLICE RADIO BULLETINS. See Arrests; Constitutional Law, VII, 1; Procedure, 4. POLITICAL BELIEFS. See Attorneys, 1, 4; Federal-State Relations; Injunctions, 1; Jurisdiction, 3; Procedure, 9. POLITICAL CANDIDATES. See Constitutional Law, VI, 1-2; Libel, 1. POLLUTION. See Jurisdiction, 7. POOR PERSONS. See Constitutional Law, I, 2; II, 2; Divorce; Indigents, 1-3; Procedure, 3, 18; Punishment. PORNOGRAPHY. See Injunctions, 3; Jurisdiction, 1; Procedure, 9, 11. POSSESSION OF FIREARMS. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. POSTING OF BONDS. See Procedure, 3. POVERTY. See Constitutional Law, I, 2; II, 2; Divorce; Indigents, 1-3; Procedure, 3, 18; Punishment. POWER GENERATING STATION. See Civil Rights Act of 1964, 1-2. PRACTICE OF LAW. See Attorneys, 1-4; Constitutional Law, III, 1. PRE-EMPTION. See Declaratory Judgments; Injunctions, 2, 4; Labor-Management Reporting and Disclosure Act, 1-2; Procedure, 6, 10. PREPONDERANCE OF EVIDENCE. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. PRIMARY ELECTIONS. See Constitutional Law, VI, 1-2; Libel, 1. PRIORITIES. See Bankruptcy Act. PRISONERS. See Constitutional Law, VII, 3; Procedure, 15. 415-649 0 - 72 - 71 1240 INDEX PRIVACY OF APPLICANTS. See Attorneys, 1-4; Constitutional Law, III, 1. PRIVATE CONDUCT. See Constitutional Law, VI, 1; Libel, 1. PROBABLE CAUSE. See Arrests; Constitutional Law, VII, 1, 4-5; Injunctions, 4; Jurisdiction, 5; Procedure, 10, 14. PROCEDURE. See also Abstention; Administrative Procedure, 1-3; Antitrust Acts; Constitutional Law, I, 2; II, 2; VII, 1-5; VIII, 1-2; Criminal Appeals Act, 1-2; Damages; Declaratory Judgments; Divorce; Evidence, 1-2; Federal-State Relations; Forfeitures, 1-2; Habeas Corpus; Indigents, 1-3; Injunctions, 1-4; Jurisdiction, 1, 3-6, 8-9; Labor-Management Reporting and Disclosure Act, 1-2; Labor Unions; National Labor Relations Act; Public Schools; Punishment; Releases; Statute of Limitations; Stay; Water Rights, 1-2. 1. Abstention Equal protection claim—State constitutional issue.—District Court mistakenly relied on Monroe v. Pape, 365 U. S. 167, and McNeese v. Board of Education, 373 U. S. 668, in refusing to abstain from deciding case on merits pending resolution by state courts of state constitutional daims that might obviate need for determining Fourteenth Amendment issue. Askew v. Hargrave p. 476. 2. Accrual of causes of action—Unfair labor practices—Remand.— Case remanded for further considération, in light of Zenith Radio Corp. v. Hazeltine Research, ante, p. 321, of questions involving accrual of causes of action under § 303 of the Labor Management Relations Act and § 4 of the Clayton Act. Mine Workers v Railing p. 486. 3. Changed circumstances—Summary éviction procedure—New législation and removal from premises.—Intervening législation and removal of appellants from premises make it inappropriate to résolve challenge by indigent appellants to summary éviction procedure, since it cannot be determined to what extent adjudication of these issues would be material to any further litigation ensuing on remand. Sanks v. Georgia, p. 144. 4. Constitutional challenge—Remand—Retrial— Since, notwith-standing petitioner s constitutional challenge to legality of arrest and search incident thereto at each stage, respondent made no attempt to show that magistrate had more information than was presented in complaint, he may not attempt to do so now on remand; and writ must issue unless State appropriately arranges to retry petitioner. Whiteley v. Warden, p. 560. 5. Death of petitioner Direct review—Fédéral criminal convie- INDEX 1241 PROCEDURE—Continued. tion.—Death pending direct review, whether by certiorari (as here) or appeal, of a fédéral criminal conviction, abates ail previous pros-ecutive proceedings. Durham v. United States, p. 481. 6. Declaratory judgments—F ederal-state relations—State criminal prosecution.—Same principles that govern propriety of fédéral injunctions of state criminal proceedings govern issuance of fédéral declaratory judgments in connection with such proceedings, and appellants here should hâve been denied declaratory relief without considération of the merits of their constitutional claims. Samuels v. Mackell, p. 66. 7. Electronic eavesdropping—Informer—Admissibility of evidence.—Court of Appeals’ holding that evidence of incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of transmitter which informer consented to wear during meetings with respondent was inadmissible under Fourth Amendment, is reversed. United States v. White, p. 745. 8. Enjoining state criminal prosecution—Federal-state relations— Irréparable injury.—District Court made no finding that threat to appellees’ federally protected rights “[could] not be eliminated by [their] defense against a single criminal prosecution,” to meet the great and immédiate irréparable injury requirement before a fédéral injunction of state criminal proceedings can properly issue. Judgment therefore vacated and case remanded. Byrne v. Karalexis, p. 216. 9. Fédéral and state courts—Injunctions—Criminal prosecutions.— Fédéral courts will not enjoin pending state criminal prosecutions except under extraordinary circumstances where danger of irréparable loss is both great and immédiate in that there is a threat to plaintiff’s federally protected rights that cannot be eliminated by his defense against a single prosecution. Younger v. Harris, p. 37; Samuels v. Mackell, p. 66; Dyson v. Stein, p. 200. 10. Federal-state relations—Injunctions—Declaratory judgments.— Since no appellee suffered, or was threatened with great and immédiate irréparable injury and the future application of the statute was merely spéculative, the District Court was not warranted in interfering with state law enforcement by issuance of an injunction or declaratory judgment. Boyle v. Landry, p. 77. 11. Federal-state relations—State criminal prosecution—Suppression order.—Three-judge court erred in issuing suppression order and thereby stifling then-pending good-faith state criminal proceed- 1242 INDEX PROCEDURE—Continued. ing during which the defense should first raise its constitutional daims. Perez v. Ledesma, p. 82. 12. Limitations and release defenses—Waiver—Discrétion oj judge.—Trial judge did not abuse his discrétion here if his rejection of the limitations and release defenses was based on respondent’s waiver due to untimeliness of their présentation. Zenith Radio Corp. v. Hazeltine Research, p. 321. 13. No Miranda warnings—Evidence—Impeachment.—Statement inadmissible against défendant in prosecution’s case in chief because of lack of procédural safeguards required by Miranda v. Arizona, 384 U. S. 436, may, if its trustworthiness satisfies legal standards, be used for impeachment purposes to attack credibility of defendant’s trial testimony. Harris v. New York, p. 222. 14. Retroactivity—Search and seizure.—Chimel v. California, 395 U. S. 752, is inapplicable to searches antedating that decision, regard-less of whether case is on direct or collateral review or involves state or fédéral prisoners. Hill v. California, p. 797. 15. Retroactivity—Search and seizure—Incident to arrest.—Court of Appeals’ holding that intervening decision in Chimel v. California, 395 U. S. 752, narrowing scope of permissible searches incident to arrest, was not to be retroactively applied to searches antedating the date it was decided, is affirmed. Williams v. United States, p. 646. 16. Retroactivity—Self-incrimination—Gambling tax.—Decisions in Marchetti n. United States, 390 U. S. 39, and Grosso v. United States, 390 U. S. 62, which held that gamblers had the Fifth Amendment right to remain silent despite the statutory requirement that they submit reports which could incriminate them, hâve rétroactive effect in a forfeiture proceeding under 26 U. S. C. § 7302. United States v. U. S. Coin & Currency, p. 715. 17. Retroactivity— Self-incrimination—Use of wagering tax forms.—Court of Appeals’ holding that Marchetti v. United States, 390 U. S. 39, and Grosso v. United States, 390 U. S. 62, would not be applied retroactively to overturn earlier income tax évasion conviction based on then-constitutional principles permitting introduction in evidence of wagering tax forms, is affirmed. Mackey v. United States, p. 667. 18. Right to counsel—Indigents—Retroactivity.—On this record petitioner proved he was without counsel due to indigency at time of his conviction, and accordingly he is entitled to relief as Gideon v. Wainwright, 372 U. S. 335, is fully rétroactive. Kitchens v. Smith, p. 847. 19. Summary judgment—Full hearing—Florida’s overail educa- INDEX 1243 PROCEDURE—Continuée!. tional program.—Since manner in which Florida’s overall educational program opérâtes may be critical in resolving the equal protection claim, that claim should be decided not by summary judgment but after a full hearing. Askew v. Hargrave, p. 476. 20. Suprême Court rules—Timeliness of pétition.—On facts here, where petitioner filed for certiorari within three weeks of notification of Court of Appeals’ déniai of pétition for rehearing several months before, waiver of Rule 22 (2)’s time requirement for filing pétition for certiorari is proper. Durham v. United States, p. 481. PROFESSIONAL COMPETENCE. See Attorneys, 1, 4. PROFESSORS. See Federal-State Relations; Injunctions, 1; Jurisdiction, 3; Procedure, 9. PROGRESSIVE LABOR PARTY. See Federal-State Relations; Injunctions, 1; Jurisdiction, 3; Procedure, 9. PROMOTIONS. See Civil Rights Act of 1964, 1-2. PROOF. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. PROPERTY TAXES. See Abstention; Procedure, 1, 19. PROSECUTIONS. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-2, 4; Jurisdiction, 3; Procedure, 6, 9-10. PROSPECTIVITY. See Constitutional Law, VII, 3-5; VIII, 1-2; Forfeitures, 1-2; Indigents, 3; Jurisdiction, 5; Procedure, 14-18. PROTECTIVE WAGE CLAUSE. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. PUBLIC LANDS. See Jurisdiction, 8-9; Water Rights, 1-2. PUBLIC OFFICIALS. See also Constitutional Law, VI, 1-3; Libel, 1-2. F aise newspaper story—Libel suit—Fitness for office.—Charge of criminal conduct against public official or candidate for public office, no matter how remote in time or place, is always “relevant to his fitness for office” for purpose of applying rule of New York Times Co. v. Sullivan, 376 U. S. 254, of knowing falsehood or reckless disregard of truth. Ocala Star-Banner Co. v. Damron, p. 295. PUBLIC PARKS. See Administrative Procedure, 1-3. PUBLIC SAFETY. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. 1244 INDEX PUBLIC SCHOOLS. Rules and régulations—Length of schoolboys’ hair.—Motion to vacate Court of Appeals’ stay of District Court’s order enjoining El Paso public school authorities from enforcing rules regarding length of hair is denied, as Justice Black refuses to hold, or predict that this Court will hold, that fédéral courts hâve the constitutional power to interfère in this way with the public school System operated by the States. Karr v. Schmidt (Black, J., in chambers), p. 1201. PUNISHMENT. See also Constitutional Law, II, 2; Indigents, 2. Nonpayment of traffic fines—Imprisonment.—It is a déniai of equal protection to limit punishment to payment of a fine for those who are able to pay it but to convert the fine to imprisonment for those who are unable to pay it. Tate v. Short, p. 395. QUALIFICATIONS FOR EMPLOYMENT. See Civil Rights Act of 1964, 1-2. QUESTIONNAIRES. See Attorneys, 1-4; Constitutional Law, III, 1. RACIAL DISCRIMINATION. See Civil Rights Act of 1964, 1-2. RADIO BULLETINS. See Arrests; Constitutional Law, VII, 1; Procedure, 4. RADIO TRANSMITTERS. See Constitutional Law, VII, 2; Procedure, 7. RAILROAD TRAINMEN. See Constitutional Law, V. RAPE. See Courts-Martial; Jurisdiction, 2. REAL PROPERTY. See Procedure, 3. RECKLESS DISREGARD OF TRUTH. See Constitutional Law, VI, 1-3; Libel, 1-2; Public Officiais. RECORD. See Damages; Procedure, 12; Releases; Statute of Limitations. REDUCTION OF DAMAGES. See Damages; Procedure, 12; Releases; Statute of Limitations. REFEREES IN BANKRUPTCY. See Bankruptcy Act. REFUS AL TO ANSWER QUESTIONS. See Attorneys, 1-4; Constitutional Law, III, 1. REFUSAL TO BARGAIN. See National Labor Relations Act. REGIONAL DIRECTORS. See National Labor Relations Act. REGISTRATION AS GAMBLER. See Constitutional Law, VIII, 1-2; Forfeitures, 1-2; Procedure, 16-17. INDEX 1245 REGISTRATION OF FIREARMS. See Constitutional Law, I, 1 ; VIII, 3; National Firearms Act, 1-2. REGULATIONS. See Banks; Criminal Appeals Act, 1-2; Standing to Sue. REGULATORY STATUTE. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. REHEARINGS. See Procedure, 5, 20. RELEASES. See also Damages; Procedure, 12; Statute of Limitations. Coconspirators—Intention of parties.—Effect of release upon co-conspirators is to be determined in accordance with intention of the parties, and here respondent, which was neither a party to the release nor a parent or subsidiary of a party, is not entitled to the benefit of the release, as the agreement to exchange releases provided that they were “to bind or benefit” the party and “the parent or subsidiaries of the party giving or receiving such release.” Zenith Radio Corp. v. Hazeltine Research, p. 321. RELEVANCY. See Constitutional Law, VI, 1-2; Libel, 1. RELIEF. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-2, 4; Jurisdiction, 3; Procedure, 6, 9-10; Stay. RELIGIOUS BELIEFS. See Constitutional Law, III, 2-3; Sélective Service Act. REMAND. See Arrests; Constitutional Law, VII, 1; Procedure, 2, 4. RENT. See Procedure, 3. REOPENING OF RECORD. See Damages; Procedure, 12; Releases; Statute of Limitations. REPORT OF CIVIL RIGHTS COMMISSION. See Constitutional Law, VI, 3; Libel, 2. REPRESENTATION PROCEEDINGS. See National Labor Relations Act. REQUIREMENTS FOR BAR ADMISSION. See Attorneys, 1-4; Constitutional Law, III, 1. RESERVED WATER RIGHTS. See Jurisdiction, 8-9; Water Rights, 1-2. RESIDENCE. See Citizenship; Constitutional Law, IV; Habeas Corpus; Jurisdiction, 4. 1246 INDEX RETROACTIVITY. See Constitutional Law, VII, 3-5; VIII, 1-2; Courts-Martial; Forfeitures, 1-2; Indigents, 3; Jurisdiction, 2, 5; Procedure, 14-18. REVIEW. See National Labor Relations Act; Procedure, 5. RIGHT TO COUNSEL. See Criminal Appeals Act, 1-2 ; Evidence, 1; Indigents, 3; Procedure, 13, 18. RIGHT TO PRIVACY. See Attorneys, 1-4; Constitutional Law, III, 1. RIVER SYSTEMS. See Jurisdiction, 8-9; Water Rights, 1-2. ROBBERY. See Constitutional Law, VII, 4-5; Indigents, 3; Jurisdiction, 5; Procedure, 14, 18. RULES. ' See Procedure, 20; Suprême Court. RULES AND REGULATIONS. See Public Schools. ST. BERNARD PARISH. See Jurisdiction, 1; Procedure, 11. SANCTIONS. See Stay. SCHOOL DISTRICTS. See Abstention; Procedure, 1, 19. SCHOOLS. See Public Schools. SCIENTER. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. SCOPE OF SEARCHES. See Constitutional Law, VII, 3; Procedure, 15. SCREENING SYSTEM. See Attorneys, 1-4; Constitutional Law, III, 1. SEARCH AND SEIZURE. See Arrests ; Constitutional Law, VII ; Jurisdiction, 5; Procedure, 4, 7, 14-15. SEATTLE. See Stay. SECRETARY OF TRANSPORTATION. See Administrative Procedure, 1-3. SECTARIAN AFFILIATIONS. See Constitutional Law, III, 2-3; Sélective Service Act. SECURITIES. See Banks; Standing to Sue. SECURITIES AND EXCHANGE COMMISSION. See Banks; Standing to Sue. SECURITY. See Courts-Martial; Jurisdiction, 2. SELECTIVE CONSCIENTIOUS OBJECTORS. See Constitutional Law, III, 2-3; Sélective Service Act. INDEX 1247 SELECTIVE SERVICE ACT. See also Constitutional Law, III, 2-3; Criminal Appeals Act, 1-2. Conscientious objectors—Exemptions—Participation in war in any form.—Exemption for those who oppose “participation in war in any form” applies to those who oppose participating in ail war and not to those who object to participation in a particular war only, even if the latter objection is religious in character. Gillette v. United States, p. 437. SELECTIVE SERVICE REGULATIONS. See Criminal Appeals Act, 1-2. SELF-INCRIMINATION. See Constitutional Law, I, 1; VIII; Evidence, 1; Forfeitures, 1-2; National Firearms Act, 1-2; Procedure, 13, 16-17. SELLING SECURITIES. See Banks; Standing to Sue. SENATORIAL CANDIDATES. See Constitutional Law, VI, 1-2; Libel, 1. SENTENCES. See Constitutional Law, II, 2; Indigents, 2; Pun-ishment. SERVICE CONNECTED. See Courts-Martial; Jurisdiction, 2. SERVICEMEN. See Courts-Martial; Habeas Corpus; Jurisdiction, 2, 4. SHERIFFS. See Arrests; Constitutional Law, VII, 1; Procedure, 4. SHERMAN ACT. See Antitrust Acts; Damages; Evidence, 2; Jurisdiction, 6; Labor Unions; Procedure, 12; Releases; Statute of Limitations. SOCIAL SECURITY TAXES. See Bankruptcy Act. SOLICITATION OF LEGAL BUSINESS. See Constitutional Law, V. SPECULATIVE DAMAGES. See Damages; Procedure, 12; Releases; Statute of Limitations. SPORTS. See Stay. STANDARD OF PROOF. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. STANDARDS FOR JOBS. See Civil Rights Act of 1964, 1-2. STANDARDS OF REVIEW. See Labor-Management Reporting and Disclosure Act, 1-2. STANDING. See Federal-State Relations; Injunctions, 1; Jurisdiction, 3; Procedure, 9. 1248 INDEX STANDING TO SUE. See also Banks. Investment companies—National banks—Compétition.—Association of open-end investment companies and several individual such companies do not lack standing to challenge whether national banks may legally enter a field in compétition with them. Investment Co. Institute v. Camp, p. 617. STATEMENTS. See Evidence, 1; Procedure, 13. STATE PRISONERS. See Constitutional Law, VII, 3; Procedure, 15. STATE PROSECUTIONS. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-4; Jurisdiction, 3; Procedure, 6, 8-10. STATUTE OF LIMITATIONS. See also Damages; Procedure, 12; Releases. Tolling—Government antitrust suit—Conspirators.—Court of Appeals erroneously rejected petitioner’s claim that statute of limitations was tolled during pendency of Government’s antitrust suit against other participants in patent pool, since claim of tolling need not be set forth until limitations claim is raised, where, as here, petitioner has no reason to anticipate raising of limitations claim, and under 28 U. S. C. § 16 (b) the statute is tolled against ail participants in conspiracy that is the object of Government suit, whether or not they are named as défendants or conspirators therein. Zenith Radio Corp. v. Hazeltine Research, p. 321. STAY. See also Public Schools. Antitrust laws—Basketball player drajt rules—Playoff games.— Equities between parties favor reinstatement of District Court’s preliminary injunction, which will enable applicant basketball player to play and thus further Seattle’s efforts to qualify for the imminent playoffs, and should it be necessary that court can fashion appro-priate relief in light of outcome of litigation and athletic compétition. Haywood v. National Basketball Assn. (Douglas, J., in cham-bers), p. 1204. STOCK FUNDS. See Banks; Standing to Sue. STOLEN PROPERTY. See Constitutional Law, VII, 4-5; Jurisdiction, 5; Procedure, 14. STUDENTS. See Public Schools. SUBSTANTIAL-EVIDENCE TEST. See Administrative Procedure, 1-3. SUMMARY EVICTIONS. See Procedure, 3. INDEX 1249 SUMMARY JUDGMENT. See Abstention; Procedure, 1, 19. SUPERVISORS. See National Labor Relations Act. SUPPLEMENTAL WATER ADJUDICATIONS. See Jurisdiction, 8-9; Water Rights, 1-2. SUPPORT AND MAINTENANCE. See Constitutional Law, II, 1; Decedents’ Estâtes. SUPPRESSION ORDERS. See Jurisdiction, 1; Procedure, 11. SUPREME COURT. See Jurisdiction, 7; Procedure, 5, 20. 1. Amendments to Rules of Civil Procedure, p. 1017. 2. Amendments to Rules of Criminal Procedure, p. 1025. 3. Amendments to Fédéral Rules of Appellate Procedure, p. 1029. 4. Assignment of Mr. Justice Clark (retired) to the United States Court of Appeals for the Fifth Circuit, p. 927. 5. Assignment of Mr. Justice Clark (retired) to the United States Court of Appeals for the Tenth Circuit, p. 927. SURETY BONDS. See Procedure, 3, SURVEILLANCE. See Constitutional Law, VII, 2; Procedure, 7. SYNDICATED COLUMNS. See Constitutional Law, VI, 1; Libel, 1. TAX ASSESSORS. See Constitutional Law, VI, 2; Libel, 1; Public Officiais. TAXES. See Abstention; Bankruptcy Act; Constitutional Law, VIII, 1-2; Forfeitures, 1-2; Procedure, 1, 16-17, 19. TEACHERS. See Federal-State Relations; Injunctions, 1; Jurisdiction, 3; Procedure, 9. TEMPORARY DUTY ORDERS. See Habeas Corpus; Jurisdiction, 4. TENANTS. See Procedure, 3. TESTIMONY. See Constitutional Law, VII, 2; Evidence, 1; Procedure, 7, 13. TESTS. See Civil Rights Act of 1964, 1-2. TEXAS. See Constitutional Law, II, 2; Indigents, 2; Injunctions, 1-2; Procedure, 9; Punishment. THREE-JUDGE COURTS. See Declaratory Judgments; Federal-State Relations; Injunctions, 1-4; Jurisdiction, 3; Procedure, 6, 8-10. TIMELINESS. See Procedure, 20. 1250 INDEX TIME MAGAZINE. See Constitutional Law, VI, 3; Libel, 2. TOLLING OF STATUTE. See Damages; Procedure, 12; Releases; Statute of Limitations. TRAFFIC OFFENSES. See Constitutional Law, II, 2; Indigents, 2; Punishment. TRANSFER OF FIREARMS. See Constitutional Law, I, 1; VIII, 3; National Firearms Act, 1-2. TRANSPORTATION UNION. See Constitutional Law, V. TRAVEL ACT. See also Gambling. Gambling operation—Out-of-state bettors.—Conducting a gambling operation frequented by out-of-state bettors does not, without more, constitute a violation of 18 U. S. C. § 1952, the Travel Act. Rewis v. United States, p. 808. TREBLE-DAMAGE CLAIMS. See Damages; Procedure, 12; Releases; Statute of Limitations. TRIALS. See Courts-Martial; Damages; Jurisdiction, 2; Procedure, 12; Releases; Statute of Limitations. TRUSTEES IN BANKRUPTCY. See Bankruptcy Act. TRUST FUNDS. See Bankruptcy Act. TRUSTWORTHINESS. See Evidence, 1; Procedure, 13. UNDERCOVER AGENTS. See Evidence, 1; Procedure, 13. UNFAIR LABOR PRACTICE. See National Labor Relations Act; Procedure, 2. UNIFORM CODE OF MILITARY JUSTICE. See Courts-Martial; Jurisdiction, 2. UNIONS. See Antitrust Acts; Constitutional Law, V; Evidence, 2; Jurisdiction, 6; Labor-Management Reporting and Dis-closure Act, 1-2; Labor Unions; National Labor Relations Act; Procedure, 2. UNION TRIBUNALS. See Labor-Management Reporting and Disclosure Act, 1-2. UNIT DETERMINATIONS. See National Labor Relations Act. UNITED STATES CITIZENSHIP. See Citizenship; Constitutional Law, IV. UNJUST WARS. See Constitutional Law, III, 2-3; Sélective Service Act. UNREGISTERED FIREARMS. See Constitutional Law, I, 1 ; VIII, 3; National Firearms Act, 1-2. INDEX 1251 UNREPORTED INCOME. See Constitutional Law, VIII, 2; Procedure, 17. UNTIMELINESS. See Damages; Procedure, 12, 20; Releases; Statute of Limitations. VAGUENESS. See Attorneys, 1-4; Constitutional Law, III, 1; Federal-State Relations; Injunctions, 1; Jurisdiction, 3; Procedure, 9. VIETNAM. See Constitutional Law, III, 2-3; Sélective Service Act. WAGE AGREEMENTS. See Antitrust Acts; Evidence, 2; Jurisdiction, 6; Labor Unions. WAGERING TAX FORMS. See Constitutional Law, VIII, 2; Procedure, 17. WAIVER. See Damages; Procedure, 12; Releases; Statute of Limitations. WAR. See Constitutional Law, III, 2-3; Sélective Service Act. WARRANTLESS ARRESTS. See Constitutional Law, VII, 4-5; Jurisdiction, 5; Procedure, 14. WARRANTLESS EAVESDROPPING. See Constitutional Law, VII, 2; Procedure, 7. WARRANTLESS SEARCHES. See Constitutional Law, VII, 3; Procedure, 15. WARRANTS. See Arrests; Constitutional Law, VII, 1; Procedure, 4. WATER POLLUTION. See Jurisdiction, 7. WATER REFEREES. See Jurisdiction, 8; Water Rights, 1. WATER RIGHTS. See also Jurisdiction, 8-9. 1. Joinder of United States—Jurisdiction—Monthly adjudications.—State statutory proceedings are within scope of 43 U. S. C. § 666 and reach ail claims in their totality, although the adjudication is made on a monthly basis. U. S. v. District Court for Water Div. No. 5, p. 527. 2. Joinder of United States—Jurisdiction—Reserved rights.—Section 666 (a) of Title 43 U. S. C. is an all-inclusive provision subject-ing to general adjudication in state proceedings ail rights of the United States to water within a State’s jurisdiction regardless of how they were acquired. Any conflict between adjudicated rights and reserved rights of the United States, if preserved in the state proceeding, can ultimately be reviewed in this Court. U. S. v. District Court for Eagle County, p. 520. 1252 INDEX WITHDRAWALS FROM PUBLIC DOMAIN. See Jurisdiction, 8-9; Water Rights, 1-2. WITHHELD TAXES. See Bankruptcy Act. WITNESSES. See Constitutional Law, VII, 2; Procedure, 7. WORDS. “Participation in war in any jorm.” § 6 (j ) Military Sélective Service Act of 1967, 50 U. S. C. § 456 (j) (1964 ed., Supp. V). Gillette v. United States, p. 437. WORKING OFF FINES. See Constitutional Law, II, 2; Indigents, 2; Punishment. WYOMING. See Arrests; Constitutional Law, VII, 1; Procedure, 4. U. S. GOVERNMENT PRINTING OFFICE : 1972 O - 415-649 Un3 c v.401 U. S. Suprême ^ourt United States reports MAHONEY LIBRAKY COLIÆOS OF SAINT ELIZABETH CONVENT STATION, N. J. \ \\\1\11\111\ \\111111 \\\I\ \\11\1 \1\\11\ 111\1\11\1\ \\\\\ II\\\ 111111\\\ . OAMGENPUB9237