> 0 3 111111 if •r/OCC»* ’"' ’ <^p- ^JywSaaE PROPERTY OF THE UNITED STATES GOVERNMENT % LIBSKrY & g \ s J'** v^* / JFtPRES'J/ ' XiKhjse \ oTMBRARY £ \ '*' s \ fiep^est- / '* L < LIBRARY V / UNITED STATES REPORTS VOLUME 403 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1970 June 7 Through June 30, 1971 End of Term HENRY PUTZEL, jr. REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1972 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price $7.50 (Buckram) JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. HUGO L. BLACK, Associate Justice. WILLIAM 0. 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. hi SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following 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 0. Douglas, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. It is further ordered that when the Circuit Justice is unavailable to act on an application in a case arising in his circuit, the Clerk shall present such application to the Acting Circuit Justice. The Acting Circuit Justice, for this purpose, is that Justice, then available, who is next junior to the Circuit Justice; except that the turn of the Chief Justice in this cycle shall follow that of the Justice most recently appointed. June 28, 1971. (For next previous allotment, see 398 U. S., p. v.) IV RETIREMENT OF CHIEF DEPUTY CLERK Supreme Court of the United States MONDAY, JUNE 14, 1971 Present: Mr. Chief Justice Burger, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Blackmun. The Chief Justice said: Today we wish to take note of the retirement of Edmund P. Cullinan, Chief Deputy Clerk of this Court, after 41 years of dedicated service to the Court. Mr. Cullinan entered the service of the Court in 1930, the same year that Charles Evans Hughes became Chief Justice. He has thus served with five of its 15 Chief Justices. Through those years his conscientious and able performance of duty has contributed immeasurably to the efficient operation of the Supreme Court. Thousands of litigants and countless members of the Bar of the Court are indebted to him for his skillful and expeditious attention to their problems, great and small. They are indebted to him, too, for his unfailing courtesy and his capacity for sensitive understanding of their individual needs and problems. These days we speak often of the importance of efficient court administration. Edmund Cullinan labored more than four decades in that cause, and he did it with unobtrusive loyalty and high professional skill. No detail was ever too small to escape his thoughtful attention, and no task ever too large to deter his conscientious ef VI RETIREMENT OF CHIEF DEPUTY CLERK forts, and few have ever equalled his grasp of procedure and practice before the Supreme Court. His 41 years of honorable service with the Court have been uniformly characterized by the qualities of integrity and unswerving devotion to duty that are indispensable to the efficient and fair administration of justice. His retirement is a loss to the Court and to all who come here. I know I speak for all the members of the Court, and for our predecessors with whom he served, when I express our heartfelt thanks to Edmund P. Cullinan as he leaves the institution he loved so well and served so loyally, and he leaves with our best wishes for the future. TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1964 edition. 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. Page Abate v. Mundt............................................ 182 Abell Co.; Barnes v....................................... 921 Adams v. Board of Regents of Florida...................... 915 Adams; Gunderson v........................................ 913 Adams v. Washington....................................... 947 Ad Hoc Committee on Consumer Protection v. United States. 901 Affiliated Ute Citizens of Utah v. United States.......... 928 Aiken v. Washington....................................... 946 Aikens v. California...................................... 952 Alabama; Mathis v......................................... 946 Alhambra School Dist. of Los Angeles County v. Mize...... 925 Alhambra School Dist. of Los Angeles County; Mize v...... 927 Ali v. United States...................................... 698 Amalgamated. For labor union, see name of trade. American Beef Packers v. Labor Board...................... 919 American Export Isbrandtsen Lines; Freedman v............. 933 Americans United v. Independent School Dist. No. 622...... 945 Anckaitis v. Miller....................................... 910 Anderson v. Louisiana..................................... 949 Apodaca v. Oregon......................................... 951 Arenado v. United States.................................. 908 Arizona; Holmes v......................................... 936 Arizona Dept, of Public Welfare v. Richardson............. 365 Arkansas; Davis v............;............................ 954 Arkansas; Mississippi v................................... 951 Armes v. United States.................................... 936 Armstrong v. Illinois..................................... 935 Arnold v. Pennsylvnaia.................................... 932 A. S. Abell Co.; Barnes v................................. 921 Askew; Beller v........................................... 925 Association. For labor union, see name of trade. VII VIII TABLE OF CASES REPORTED Page Atkinson v. North Carolina.................................. 948 Attorney General; Waterhouse v.............................. 918 Attorney General of Florida; Fuentes v...................... 917 Baines v. Birmingham........................................ 927 Baker v. United States...................................... 904 Bargas v. Hocker............................................ 935 Barger v. Washington........................................ 918 Barnes v. A. S. Abell Co.................................... 921 Bartlett; Boston & Providence Railroad Dev. Group v....... 940 Bela Seating Co.; Poloron Products, Inc. v.................. 922 Bell v. Patterson........................................... 955 Beller v. Askew............................................. 925 Bender v. United States..................................... 924 Benningfield v. Maryland.................................... 921 Benton v. Tennessee......................................... 955 Bemette v. Illinois......................................... 947 Beto; Crain v............................................... 947 Beverage Distributors v. Olympia Brewing Co................. 906 Beyer v. Mancusi............................................ 933 B & H Dist. Corp.; United States v.......................... 927 Biehunik v. Felicetta....................................... 932 Billingsley v. United States................................ 909 Birmingham; Baines v........................................ 927 Bishop v. United States..................................... 935 Bivens v. Six Unknown Agents, Federal Bur. Narcotics...... 388 Black v. Sheraton Corp, of America.......................... 912 Blackwell; Tate v........................................... 928 Board of Ed. of Kanawha County v. Hughes.................... 944 Board of Ed. of Kankakee School Dist.; Kankakee Teachers v. 904 Board of Ed. of Knoxville; Goss v........................... 956 Board of Regents of Florida; Adams v........................ 915 Bock v. New York............................................ 935 Bogert v. Kinzer.......................................... 914 Bostick; Byrnes v.......................................... 934 Boston & Providence Railroad Dev. Group v. Bartlett....... 940 Brady v. Ohio........................................... 923,925 Branch v. Texas............................................ 952 Brando v. Coffman........................................... 923 Branion v. Illinois......................................... 907 Breckenridge; Griffin v..................................... 88 Brennan; Ransom v........................................... 994 Brenner v. School District of Kansas City................... 913 Brewster v. Lake Superior District Power Co................. 914 TABLE OF CASES REPORTED ix Page Brierley; Ray v............................................ 941 Brooks v. Maryland........................................ 907 Brossard v. United States................................. 924 Brotherhood. For labor union, see name of trade. Brown v. Michigan...................................... 906 Bruce; Marathon Oil Co. v.............................. 918 Bryant v. United States................................ 936 Buchanan v. Michigan................................... 941 Buchkoe; Wolff v....................................... 909 Buckley v. Johnson..................................... 955 Buckley; Stevens v...................................... 905 Burkes v. Callion...................................... 908 Burrus, In re.......................................... 528 Burson; Chappell v..................................... 902 Byrnes v. Bostick...................................... 934 Cady; Odell v. 920 California; Aikens v. 952 California; Cohen v..................................... 15 California; Desert Outdoor Advertising v................... 926 California; Hardin v..................................... 908 California; Horton v...................................... 907 California v. King..................................... 931 California; McGautha v................................. 951 California; Milligan v................................. 931 California; Smith v.................................... 934 California Adult Authority; Carter v..................... 908 California Dept, of Alcoholic Bev. Control; Lipkin v.... 911 Callion; Burkes v...................................... 908 Campbell v. United States.............................. 910,941 Cardwell; White v...................................... 921 Carlson v. Tallahassee................................. 910 Carl Zeiss Stiftung; V. E. B. Carl Zeiss, Jena v....... 905 Carnes v. Craven....................................... 907 Carter v. California Adult Authority................... 908 Carter; Dies v........................................ 904,951 Carter v. United States................................ 920 Cassidy; Gaytan v...................................... 902 Castle v. Moseley...................................... 908 Castro v. United States................................ 903 Center Motors, Inc.; Hunter v............................ 940 Chabert v. Westwego.................................... 918 Chafee; Sarg v......................................... 903 Chambers v. United States.............................. 912 X TABLE OF CASES REPORTED Page Chaney v. Florida.......................................... 904 Chappell v. Burson......................................... 902 Charles River Civic Television v. Federal Com. Comm’n..... 923 Charlotte-Mecklenburg Board of Education v. Swann....... 912 Charlotte-Mecklenburg Board of Education; Swann v......... 912 Chavis; Ruckelshaus v...................................... 914 Chavis; Whitcomb v..................................... 124,914 Cherry; United States v.................................... 942 Chicago Civil Service Comm’n; Davern v..................... 918 Chicago & N. W. R. Co. v. Transportation Union............ 928 Chicago & N. W. R. Co.; Transportation Union v.......... 904 Chicago Ridge v. Gardner................................... 919 Chief Judge, U. S. District Court; Hite v.................. 909 Childs v. North Carolina................................... 948 Chrysler Corp.; Modla v.................................... 909 City. See name of city. City Clerk of Minneapolis; Dodds v........................ 914 City Clerk of Minneapolis; Rimarcik v..................... 915 Civil Service Comm’n; Northern Virginia Park Auth. v...... 936 Civil Service Comm’n of Chicago; Davern v.................. 918 Clark v. Smith............................................. 946 Clark; Tarlton v........................................... 934 Clay v. United States...................................... 698 Clayton; Kervick v......................................... 945 Clayton; Levine v.......................................... 945 Clerk of Pocatello; Bogert v............................... 914 Coffman; Brando v.......................................... 923 Cohen v. California......................................... 15 Cohen v. United States..................................... 908 Cole v. Richardson......................................... 917 Collins v. Nebraska........................................ 909 Collins; Pastorelle v...................................... 906 Colorado Dept, of Social Services Director; Digesualdo v... 929 Colorado Dept, of Social Services Director; Gonzales v.... 927 Colton v. United States.................................... 916 Commissioner v. Lincoln Savings & Loan Assn................ 345 Commissioner; Novelart Mfg. Co. v.......................... 918 Commissioner of Education of Minnesota; Stark v............ 945 Commissioner of Education of Rhode Island v. DiCenso...... 602 Commissioner of Internal Revenue. See Commissioner. Commissioner of Sanitation of N. Y.; Sanitation Men v.... 917 Commonwealth. See name of Commonwealth. Connecticut Board of Education v. Johnson.................. 955 TABLE OF CASES REPORTED XI Page Connell v. Higginbotham................................. 207 Connor v. Johnson.................................... 924,928 Continental Broadcasting, Inc. v. Federal Com. Comm’n.... 905 Continental Casualty Co.; Mather Construction Co. v...... 912 Cook; Summerville v. 908 Coolidge v. New Hampshire................................ 443 Corrado v. Providence Redevelopment Agency............... 941 Corrections Commissioner. See name of commissioner. County. See name of county. Cowling v. Craven........................................ 922 Crain v. Beto............................................ 947 Crampton v. Ohio......................................... 951 Craven; Carnes v......................................... 907 Craven; Cowling v. 922 Craven; Reliford v....................................... 907 Craven; Simmons v.. . 935 Craven; Valdez v......................................... 921 D. v. Onondaga County.................................... 926 Daisy Ave. Road Dist. of Jefferson County; Morris v....... 939 Dandridge v. United States............................... 934 Darnell v. Kentucky...................................... 920 Davem v. Civil Service Comm’n of Chicago................. 918 Davies; Krasna v......................................... 931 Davis v. Arkansas........................................ 954 Davis v. Royal-Globe Insurance Cos....................... 911 Dawson v. Wainwright..................................... 939 Deans v. United States................................... 911 DeBacker v. Sigler....................................... 926 Deegan; Trammell v....................................... 920 Delaware & Hudson R. Co. v. Transportation Union........ 911 Del Nobile v. New Jersey................................. 917 Deming v. United States.................................. 924 Dennis v. Illinois....................................... 907 Department of Alcoholic Bev. Control of Calif.; Lipkin v... 911 Department of Public Welfare of Ariz. v. Richardson..... 365 DeSapio v. United States................................. 941 Desert Outdoor Advertising v. California................. 926 DiCenso; Earley v........................................ 602 DiCenso; Robinson v...................................... 602 Dies v. Carter....................................... 904,951 Digesualdo v. Shea....................................... 929 Dillon v. United States.................................. 924 Director of Internal Revenue. See Commissioner. XII TABLE OF CASES REPORTED Page Director of penal or correctional institution. See name of director. District Court. See U. S. District Court. District Judge. See U. S. District Judge. Dixon v. Oregon.............................................. 928 Dodds v. Johansen............................................ 914 Donahey v. Protestants United................................ 955 Dubin v. United States....................................... 936 Dundee; Orleans Parish Bd. of Supervisors of Elections v.... 915 Duplessis v. Louisiana....................................... 946 Dutton; Willis v............................................. 932 Earley v. DiCenso............................................ 602 Eason v. United States....................................... 941 Edmondson v. United States................................... 924 Eilers v. Hercules, Inc...................................... 937 Eisenberg v. Wisconsin....................................... 940 Ellmyer; Gambocz v........................................... 919 Ely v. Klahr................................................. 108 Emerson Electric Co.; Reliance Electric Co. v................ 929 English v. Virginia.......................................... 907 Estate. See name of estate. Ethicon, Inc. v. Handgards, Inc............................. 912 Ethington v. United States................................... 908 Eubank v. Illinois........................................... 940 Evans v. United States....................................... 924 Fair v. Kirk................................................. 941 Federal Bureau of Narcotics Agents; Bivens v................. 388 Federal Com. Comm’n; Charles River Civic Television, Inc. v. 923 Federal Com. Comm’n; Continental Broadcasting, Inc. v.... 905 Federal Com. Comm’n; Greater Boston Television Corp. v... 923 Federal Com. Comm’n; Lamar Life Broadcasting Co. v.... 913,939 Federal Com. Comm’n; WHDH, Inc. v................... 923 Federal Power Comm’n; Florida Power Corp, v............ 910 Federal Power Comm’n v. Florida Power & Light Co........... 916 Felicetta; Biehunik v........................................ 932 Ferguson; Odom v............................................. 903 Fernandez v. New York........................................ 922 Fibreboard Corp. v. Labor Board.............................. 905 Fidelity & Cas. Co. of N. Y. v. National Bank of Commerce.. 906 Fields v. United States...................................... 907 Fisher; Scafati v......................................... 913 939 Flesch v. United States...................................... 924 Flint; Rucker v............................................ 941 TABLE OF CASES REPORTED xin Page Florida; Chaney v.......................................... 904 Florida; Schneble v........................................ 952 Florida; Setzler v......................................... 921 Florida; Simpson v......................................... 384 Florida; Smith v........................................... 917 Florida; Wilson v.......................................... 947 Florida Attorney General; Fuentes v........................ 917 Florida Board of Regents; Adams v.......................... 915 Florida Governor; Beller v................................. 925 Florida Governor; Fair v................................... 941 Florida Judicial Qualifications Comm’n; Kelly v............ 940 Florida Power Corp. v. Federal Power Comm’n................ 910 Florida Power Corp. v. Gainesville Utilities Dept.......... 910 Florida Power & Light Co.; Federal Power Comm’n v......... 916 Florida Real Estate Comm’n; Stephens v..................... 931 Florida Secretary of State; Gunderson v.................... 913 Flowers v. Haskins......................................... 908 Floyd v. Neil.............................................. 907 Ford Motor Co. v. United States............................ 903 Foreman v. New Jersey...................................... 909 Fort v. United States...................................... 932 Fortson; Jenness v......................................... 431 Fort Worth Independent School District; Passel v........... 941 Fox; Morrison Motor Freight v.......................... 931 Franklin v. Grossinger Motor Sales......................... 911 Freed; United States v.................................. 912 Freedman v. American Export Isbrandtsen Lines.............. 933 Fried v. United States..................................... 934 Friedland v. Justices of U. S. Court of Appeals............ 957 Fucini v. Illinois......................................... 925 Fuentes v. Shevin.......................................... 917 Fuhrman v. United States Steel Corp........................ 924 Funicelle v. New Jersey.................................... 948 Furman v. Georgia.......................................... 952 Gainesville Utilities Dept.; Florida Power Corp, v......... 910 Gambocz v. Ellmyer......................................... 919 Gardner; Chicago Ridge v................................... 919 Garr v. Kentucky........................................... 910 Gaytan v. Cassidy.......................................... 902 General Electric Co.; Strong v. 906 General Motors Corp.; Gottesman v...................... 911 General Motors Corp.; Washington v......................... 949 Georgia; Furman v.......................................... 952 XIV TABLE OF CASES REPORTED Page Georgia; Jackson v......................................... 952 Georgia; Spencer v......................................... 934 Georgia Dept, of Public Safety Director; Chappell v........ 902 Georgia Secretary of State; Jenness v...................... 431 Gerberding v. Swenson...................................... 906 Ginsburg v. Richardson..................................... 912 Ginzburg v. United States.................................. 931 Giordano v. Lee............................................ 931 Golembiewski v. United States.............................. 932 Gonzales v. Shea........................................... 927 Gonzales v. United States.................................. 934 Gooding v. Wilson.......................................... 930 Gordon v. Lance.............................................. 1 Goss v. Board of Education of Knoxville.................... 956 Gottesman v. General Motors Corp........................... 911 Governor. See name of State. Grabinski v. Kansas........................................ 918 Grabowski v. Kansas...................................... 918 Graham v. Richardson....................................... 365 Grasso v. United States.................................... 920 Greater Boston Television Corp. v. Federal Com. Comm’n... 923 Gregory v. Tarr............................................ 922 Griffin v. Breckenridge..................................... 88 Griffith; Ohio v........................................... 905 Groessel v. United States.................................. 933 Groppi v. Leslie........................................... 904 Gross Income Tax Div., Ind. Dept, of Rev.; Mueller Co. v.. 901 Grossinger Motor Sales; Franklin v. 911 Gubins v. Nelson........................................... 930 Gulf Finance Corp.; Streule v............................ 941 Gunderson v. Adams......................................... 913 Gunzburger v. Richardson................................... 934 Hall v. United States...................................... 906 Hallmark Industry v. Peckham............................... 932 Hallmark Industry v. Reynolds Metals Co.................... 932 Hamilton Estate; Natoli v............................... 920 Hammond v. Tennessee....................................... 910 Handgards, Inc.; Ethicon, Inc. v........................... 912 Hardin v. California....................................... 908 Harris v. Tennessee........................................ 711 Harris v. Texas............................................ 947 Harris; Theriault v...................................... 923 Harris v. United States.................................... 924 TABLE OF CASES REPORTED xv Page Harris; United States v...................................... 573 Harris v. Wingo.............................................. 930 Harvey v. United States...................................... 934 Haskins; Flowers v........................................... 908 Hayes v. United States....................................... 919 Hayse; Van Hoomissen v....................................... 927 Henry; McClean v............................................. 933 Hercules, Inc.; Eilers v..................................... 937 Hess Oil & Chemical Corp.; Nash v............................ 922 Higginbotham; Connell v.................................... 207 Hightower v. Smith........................................... 907 Hill v. North Carolina....................................... 948 Hill v. Rachal............................................... 904 Hillery v. Nelson............................................ 921 Hite v. Moynahan............................................. 909 Hite v. Washington.......................................... 933 Hocker; Bargas v............................................. 935 Hodges v. United States...................................... 908 Hodgson; Romero v............................................ 901 Hodgson v. Steelworkers...................................... 333 Hoene v. Jamieson............................................ 926 Holmes v. Arizona............................................ 936 Horton v. California......................................... 907 Houston v. Tennessee........................................ 711 Houston v. United States..................................... 910 Howard; Mastracchio v........................................ 909 Howe v. North Dakota......................................... 933 Hudson v. Louisiana.......................................... 949 Hughes; Board of Education of Kanawha County v............. 944 Hughes Tool Co. v. Ingersoll-Rand Co......................... 918 Hunt v. McNair............................................... 945 Hunter v. Center Motors, Inc................................. 940 Hunter v. Tennessee.......................................... 711 Hyler v. Reynolds Metals Co.................................. 912 Illinois; Armstrong v........................................ 935 Illinois; Bernette v......................................... 947 Illinois; Branion v.......................................... 907 Illinois; Dennis v........................................... 907 Illinois; Eubank v........................................... 940 Illinois; Fucini v........................................... 925 Illinois; Kelley v........................................... 906 Illinois; Martin v........................................... 921 Illinois; Moore v............................................ 953 XVI TABLE OF CASES REPORTED Page Illinois; Pardo v............................................. 941 Illinois; Rodriguez v......................................... 921 Illinois; Speck v............................................. 946 Illinois; Tajra v............................................. 947 Illinois; Van Riper v......................................... 918 Illinois Dept, of Public Aid v. Rodriguez..................... 901 Illinois Governor; Jackson v.................................. 925 Illinois Secretary of State; Pollion v........................ 902 Illinois Tool Works; Sweetheart Plastics v.................. 942 Immigration and Naturalization Service; Magafan v........ 931 Immigration and Naturalization Service; Marin v............ 923 Immigration and Naturalization Service; Shah v............. 924 Immigration and Naturalization Service; Shkukani v.......... 920 Independent School Dist. No. 622; Americans United v........ 945 Indiana Dept, of Revenue; Mueller Brass Co. v................. 901 Indiana Governor v. Chavis................................ 124,914 Ingersoll-Rand Co.; Hughes Tool Co. v......................... 918 In re. See name of party. Interim Operating Com.; School Dist. of Shaler Twnshp. v.. 913 Internal Revenue Service. See Commissioner, International. For labor union, see name of trade. Irving v. United States....................................... 918 Jack v. United States......................................... 920 Jackson v. Georgia............................................ 952 Jackson v. Ogilvie............................................ 925 Jackson v. United States...................................... 906 Jackson Mayor; Palmer v................................... 217 Jacksonville; Papachristou v.................................. 917 Jaggers v. Kentucky........................................... 946 James v. United States........................................ 906 Jamieson; Hoene v............................................. 926 Jenness v. Fortson............................................ 431 Jimmie’s Inc. v. West Haven................................... 931 Johansen; Dodds v............................................. 914 Johansen; Rimarcik v.......................................... 915 Johns v. United States........................................ 933 Johnson, In re................................................ 926 Johnson; Buckley v............................................ 955 Johnson; Connor v......................................... 924,928 Johnson v. Louisiana.......................................... 951 Johnson v. Mississippi........................................ 212 Johnson; Muncaster v.......................................... 930 Johnson; Sanders v............................................ 955 Johnson v. United States...................................... 922 TABLE OF CASES REPORTED XVII Page Johnson; United States v................................... 956 Justices of U. S. Court of Appeals; Friedland v............ 957 Kanawha County Board of Education v. Hughes................ 944 Kankakee Federation of Teachers v. Board of Education.... 904 Kansas; Grabinski v.......:................................ 918 Kansas; Grabowski v........................................ 918 Kansas City School District; Brenner v..................... 913 Kansas Public Employees Retirement System; Strader v.... 914 Karger v. United States.................................... 919 Keenan; McCubbins v........................................ 907 Kelley v. Illinois........................................ 906 Kelley v. United States.................................... 930 Kelly v. Florida Judicial Qualifications Comm’n............ 940 Kentucky; Darnell v........................................ 920 Kentucky; Garr v........................................... 910 Kentucky; Jaggers v............................. 946 Kentucky; Kiper v.......................................... 935 Kervick v. Clayton......................................... 945 King; California v......................................... 931 Kinloch v. News & Observer Publishing Co................... 905 Kinzer; Bogert v........................................... 914 Kiper v. Kentucky.......................................... 935 Kirk; Fair v............................................... 941 Klahr; Ely v............................................... 108 Knoxville Board of Education; Goss v....................... 956 Knuckles v. Prasse......................................... 936 Kotakes v. United States................................... 919 Krasna v. Davies........................................... 931 Kurtzman; Lemon v........................................ 602 Kyle v. United States...................................... 935 Labor Board; American Beef Packers v......... i.......... 919 Labor Board; Fibreboard Corp, v. 905 Labor Board; Marie Phillips, Inc. v....................... 905 Labor Board v. Plasterers & Cement Masons.............. 916,929 Labor Board Regional Director; Sears, Roebuck & Co. v.... 905 Labor Union. See name of trade. Lack v. United States...................................... 935 Ladetto v. Massachusetts................................... 947 Lake Superior District Power Co.; Brewster v............... 914 Lamar Life Broadcasting Co. v. Federal Com. Comm’n.... 913,939 Lamp v. United States Steel Corp........................... 940 Lance; Gordon v.............................................. 1 Lane v. Pate............................................... 921 Lane v. United States...................................... 934 XVIII TABLE OF CASES REPORTED Page Lane v. Wingo............................................. 921 Lanier v. United States................................... 920 LaRocca v. New York....................................... 935 La Vallee; LoCicero v..................................... 908 LaVallee; Tarallo v...................................... 919 LaVallee; Taro v.......................................... 919 Lee; Giordano v....................................*...... 931 Leeke; Thomas v........................................ 948 Leger; Sailer v........................................... 365 Lemon v. Kurtzman......................................... 602 Lennox; Swarb v........................................... 928 Leslie; Groppi v.......................................... 904 Levine v. Clayton......................................... 945 Lewis; Pollion v.......................................... 902 Lewis; Societe Industries Mechaniques Allies v............ 905 Lincoln Savings & Loan Assn.; Commissioner v............. 345 Lindsey v. Normet......................................... 929 Lipkin v. Dept, of Alcoholic Beverage Control of Calif.... 911 Lloyd v. United States.................................... 911 Lloyd; Van Hook v......................................... 920 Local. For labor union, see name of trade. LoCicero v. LaVallee........................................ 908 Lockridge; Street, Railway & Motor Coach Employees v.... 274 Louisiana ; Anderson v.................................... 949 Louisiana; Duplessis v.................................... 946 Louisiana; Hudson v....................................... 949 Louisiana; Johnson v...................................... 951 Louisiana; Matthews v..................................... 922 Louisiana; Mitchell v..................................... 903 Louisiana; United States v................................ 950 Louisiana Boundary Case................................... 950 Luna v. United States..................................... 918 Luros; United States v.................................... 924 Mac. See also Me. Macdonald v. Shawnee Country Club........................... 932 Magafan v. Immigration and Naturalization Service......... 931 Maine; United States v.................................... 949 Mancusi; Beyer v.......................................... 933 Mancusi; Weis v........................................... 921 Manley v. Virginia........................................ 935 Marathon Oil Co. v. Bruce................................. 918 Marie Phillips, Inc. v. Labor Board....................... 905 Marin v. Immigration and Naturalization Service........... 923 Martin v. Illinois........................................ 921 TABLE OF CASES REPORTED XIX Page Martin v. Maryland....................................... 955 Maryland; Benningfield v................................ 921 Maryland; Brooks v...................................... 907 Maryland; Martin v...................................... 955 Massachusetts; Ladetto v.................................. 947 Mastracchio v. Howard..................................... 909 Mather Construction Co. v. Continental Casualty Co...... 912 Mathis v. Alabama......................................... 946 Mathis v. New Jersey...................................... 946 Mattheis; Stark v......................................... 945 Matthews v. Louisiana..................................... 922 Mayor of Jackson; Palmer v................................ 217 Me. See also Mac. McBride v. United States................................ 920 McClean v. Henry........................................ 933 McCubbins v. Keenan..................................... 907 McGautha v. California.................................. 951 McKeiver v. Pennsylvania................................ 528 McKenzie v. Texas....................................... 952 McKinnon v. New York.................................... 936 McNair; Hunt v.......................................... 945 Metromedia, Inc.; Rosenbloom v.................. 29 Michigan; Brown v....................................... 906 Michigan; Buchanan v...................................... 941 Michigan; Winegar v..................................... 935 Mihaly v. Westbrook..................................... 915 Mihaly; Westbrook v....................................... 922 Miller; Anckaitis v....................................... 910 Milligan v. California.................................... 931 Milne v. Vermont.......................................... 919 Milton v. Wainwright.................................. 904,951 Minneapolis City Clerk; Dodds v......................... 914 Minneapolis City Clerk; Rimarcik v........................ 915 Minnesota Comm’r of Education; Stark v.................... 945 Minnesota Highway Comm’r; Hoene v.................... 926 Mississippi v. Arkansas................................... 951 Mississippi; Johnson v.................................... 212 Mitchell v. Louisiana..................................... 903 Mitchell v. United States................................. 924 Mitchell; United States v................................. 190 Mitchell; Waterhouse v.................................... 918 Mize v. Alhambra School Dist. of Los Angeles County..... 927 Mize; Alhambra School Dist. of Los Angeles County v..... 925 Modla v. Chrysler Corp.................................... 909 XX TABLE OF CASES REPORTED Page Moore v. Illinois......................................... 953 Moore; Redmond v.......................................... 935 Morris v. Daisy Ave. Road Dist. of Jefferson County...... 939 Morris v. Sparrow......................................... 939 Morrison Motor Freight v. Fox............................ 931 Moseley; Castle v......................................... 908 Moss v. New Jersey........................................ 921 Moynahan; Hite v.......................................... 909 Mueller Brass Co. v. Gross Income Tax Div., Dept, of Rev.. 901 Muncaster v. Johnson...................................... 930 Mundt; Abate v............................................ 182 Nash v. Hess Oil & Chemical Corp.......................... 922 National Bank of Commerce; Fidelity & Cas. Co. of N. Y. v.. 906 National Director, Selective Service System; Gregory v... 922 National Director, Selective Service System; Whitmore v.... 922 National Gypsum Co. v. United States Gypsum Co........ 923 National Labor Relations Board. See Labor Board. Natoli v. Hamilton Estate................................. 920 Nebraska; Collins v....................................... 909 Nebraska; Randolph v...................................... 909 Neil; Floyd v............................................. 907 Nelson; Gubins v.Ì.....................i................ 930 Nelson; Hillery v......................................... 921 Nelson v. Warden.......................................... 924 Nelson; Williams v........................................ 933 Nevada; Phillips v........................................ 940 New Hampshire; Coolidge v................................. 443 New Jersey; Del Nobile v................................ 917 New Jersey; Foreman v.................................. 909 New Jersey; Funicelle v................................. 948 New Jersey; Mathis v.................................... 946 New Jersey; Moss v...................................... 921 New Jersey State Treasurer v. Clayton..................... 945 New Mexico; Vaughn v...................................... 933 News & Observer Publishing Co.; Kinloch v................. 905 New York; Bock v....................................... 935 New York; Fernandez v.................................. 922 New York; LaRocca v.................................... 935 New York; McKinnon v................................. 936 New York; Widziewicz v................................. 908 New York Times Co. v. United States............... 713,942,944 Normet; Lindsey v......................................... 929 North Carolina; Atkinson v................................ 948 North Carolina; Childs v.................................. 948 TABLE OF CASES REPORTED XXI Page North Carolina; Hill v..................................... 948 North Carolina; Roseboro v................................ 948 North Carolina; Sanders v................................. 948 North Carolina; Smith v.................................... 934 North Carolina; Williams v................................ 948 North Dakota; Howe v........................................ 933 Northern Va. Regional Park Auth. v. Civil Serv. Comm’n.. 936 Northwest Airlines; Todd v.................................. 910 Novelart Mfg. Co. v. Commissioner........................... 918 Odell v. Cady............................................... 920 Odom v. Ferguson............................................ 903 Ogilvie; Jackson v.......................................... 925 Ohio; Brady v........................................... 923,925 Ohio; Crampton v............................................ 951 Ohio v. Griffith............................................ 905 Ohio; Pemberton v........................................... 947 Ohio; Pruett v.............................................. 946 Ohio; Wigglesworth v........................................ 947 Ohio Treasurer v. Protestants United........................ 955 Oliver v. United States..................................... 934 Olympia Brewing Co.; Beverage Distributors v................ 906 Onondaga County; D. v....................................... 926 Oregon; Apodaca v........................................... 951 Oregon; Dixon v............................................. 928 Oregon; Zomer v............................................. 936 Orito v. United States...................................... 940 Orleans Parish Bd. of Supervisors of Elections v. Dundee.... 915 Paladini; United States v................................... 930 Palmer v. Thompson.......................................... 217 Papachristou v. Jacksonville................................ 917 Pardo v. Illinois........................................... 941 Parker v. United States..................................... 934 Passel v. Fort Worth Independent School District............ 941 Pastorelle v. Collins....................................... 906 Pate; Lane v................................................ 921 Patlogan v. West Virginia................................... 903 Patterson; Bell v........................................... 955 Patterson; Segura v......................................... 946 Peckham; Hallmark Industry v................................ 932 Pemberton v. Ohio........................................ 947 Pennsylvania; Arnold v.................................... 932 Pennsylvania; McKeiver v................................. 528 Pennsylvania; Thomas v.................................... 906 Pennsylvania; Tyczkowski v................................ 924 XXII TABLE OF CASES REPORTED Page Pennsylvania Secretary of Transportation v. Miller........ 910 Pennsylvania Supt. of Public Instruction; Lemon v......... 602 Perry v. Sindermann........................................ 917 Peterson v. United States.................................. 907 Phillips v. Nevada......................................... 940 Phillips, Inc. v. Labor Board.............................. 905 Picard; Rogers v........................................... 909 Piercefield v. United States............................... 933 Pietsch v. President of the United States.................. 920 Plamondon; United States v................................. 930 Plasterers & Cement Masons; Labor Board v.............. 916,929 Plasterers & Cement Masons; Texas State Tile Co. v.... 916,929 Pocatello City Clerk; Bogert v............................ 914 Polack v. United States.................................... 931 Pollion v. Lewis........................................... 902 Poloron Products, Inc. v. Bela Seating Co.................. 922 Polsky v. Wetherill........................................ 916 Posner v. United States.................................... 924 Prasse; Knuckles v......................................... 936 President of the United States; Pietsch v.................. 920 Protestants United; Donahey v955 Protestants United v. Independent School Dist. No. 622.... 945 Providence Redevelopment Agency; Corrado v............... 941 Pruett v. Ohio............................................. 946 Pruett v. Texas............................................ 912 Quintana v. Texas.......................................... 947 Rachal; Hill v........................................... 904 Ragsdale v. United States.................................. 919 Railway Clerks v. Railway Express Agency................... 919 Railway Express Agency; Railway Clerks v................... 919 Randolph v. Nebraska....................................... 909 Ransom v. Brennan.......................................... 904 Ray v. Brierley............................................ 941 Redmond v. Moore........................................... 935 Regan; Ruderer v........................................... 924 Reidel; United States v................................i. 924 Reliance Electric Co. v. Emerson Electric Co............... 929 Reliford v. Craven........................................ 907 Reynolds Metals Co.; Hallmark Industry v................ 932 Reynolds Metals Co.; Hyler v............................... 912 Rhode Island Comm’r of Education v. DiCenso................ 602 Richardson; Cole v......................................... 917 Richardson; Ginsburg v..................................... 912 Richardson; Graham v....................................... 365 Richardson; Gunzburger v............................... 934 TABLE OF CASES REPORTED XXIII Page Richardson; Tilton v........................................ 672 Richardson Foundation v. United States...................... 912 Rimarcik v. Johansen........................................ 915 Roberts v. United States.................................... 936 Robinson v. DiCenso......................................... 602 Rodriguez v. Illinois....................................... 921 Rodriguez; Swank v.......................................... 901 Rogers v. Picard............................................ 909 Romero v. Hodgson........................................... 901 Roseboro v. North Carolina.................................. 948 Rosenbloom v. Metromedia, Inc................................ 29 Royal-Globe Insurance Cos.; Davis v......................... 911 Ruckelshaus v. Chavis....................................... 914 Rucker v. Flint............................................. 941 Ruderer v. Regan............................................ 924 Russell; Toth v............................................. 909 Sailer v. Leger............................................. 365 San Antonio Conservation Society; Texas Highway Dept. v.. 932 Sanders v. Johnson........................................ 955 Sanders v. North Carolina................................... 948 Sanitation Men v. Comm’r of Sanitation of N. Y.............. 917 Sarg v. Chafee............................................. 903 Saville v. United States.................................... 955 Scafati v. Fisher........................................913,939 Schneble v. Florida......................................... 952 School District of Kansas City; Brenner v................. 913 School District of Shaler Twnshp. v. Interim Operating Com. 913 Sears, Roebuck & Co. v. Solien.............................. 905 Secretary of Bd. of Ed. of Connecticut v. Johnson........... 955 Secretary of Health, Education, and Welfare; Ginsburg v.... 912 Secretary of Health, Education, and Welfare; Gunzburger v.. 934 Secretary of Health, Education, and Welfare; Tilton v..... 672 Secretary of Labor; Romero v. 901 Secretary of Labor v. Steelworkers.......................... 333 Secretary of Navy; Sarg v................................... 903 Secretary of State of Florida; Gunderson v................ 913 Secretary of State of Georgia; Jenness v.................. 431 Secretary of State of Illinois; Pollion v................... 902 Secretary of Transportation of Pennsylvania v. Miller..... 910 Seegers; Williams v......................................... 955 Segura v. Patterson......................................... 946 Selective Service System National Director; Gregory v..... 922 Selective Service System National Director; Whitmore v.... 922 Setzler v. Florida.......................................... 921 XXIV TABLE OF CASES REPORTED Page Shah v. Immigration and Naturalization Service............. 924 Shaler Township School Dist. v. Interim Operating Com.... 913 Shawnee Country Club; Macdonald v.................... 932 Shea; Digesualdo v........................................ 929 Shea; Gonzales v.......................................... 927 Sheraton Corp, of America; Black v......................... 912 Shevin; Fuentes v......................................... 917 Shkukani v. Immigration and Naturalization Service........ 920 Sid W. Richardson Foundation v. United States.............. 912 Sigler; DeBacker v........................................ 926 Silverman v. United States................................. 924 Simmons v. Craven......................................... 935 Simms v. Warden.......................................... 909 Simpson v. Florida........................................ 384 Sindermann; Perry v....................................... 917 Six Unknown Agents, Federal Bur. Narcotics; Bivens v...... 388 Smalls v. United States.................................... 933 Smith v. California........................................ 934 Smith; Clark v............................................. 945 Smith v. Florida.......................................... 917 Smith; Hightower v......................................... 907 Smith v. North Carolina................................... 934 Smothers v. United States.................................. 906 Snyder v. Tennessee........................................ 935 Societe Industries Mechaniques Allies v. Lewis............. 905 Solien; Sears, Roebuck & Co. v............................. 905 South Carolina Governor; Hunt v............................ 945 Sparrow; Morris v.......................................... 939 Speck v. Illinois.......................................... 946 Spencer v. Georgia......................................... 934 Spieler v. United States................................... 912 Stark v. Mattheis.......................................... 945 State. See name of State. State Comm’r of Highways of Minnesota; Hoene v............. 926 State Treasurer of New Jersey v. Clayton................... 945 Steelworkers; Hodgson v.................................... 333 Stein v. United States..................................... 905 Stephens v. Florida Real Estate Comm’n..................... 931 Stevens v. Buckley......................................... 905 Strader v. Kansas Public Employees Retirement System.... 914 Street, Railway & Motor Coach Employees v. Lockridge.... 274 Streule v. Gulf Finance Corp.............................. 941 Strong v. General Electric Co.............................. 906 Summers v. Texas........................................... 933 TABLE OF CASES REPORTED XXV Page Summerville v. Cook....................................... 908 Superintendent of penal or correctional institution. See name of superintendent. Superintendent of Public Instruction of Pa.; Lemon v...... 602 Swank v. Rodriguez........................................ 901 Swann v. Charlotte-Mecklenburg Board of Education...... 912 Swann; Charlotte-Mecklenburg Board of Education v....... 912 Swarb v. Lennox........................................... 928 Sweetheart Plastics v. Illinois Tool Works................ 942 Sweig v. United States.................................... 932 Swenson; Gerberding v..................................... 906 Swift v. United States.................................. 920 Tajra v. Illinois....................................... 947 Tallahassee; Carlson v.................................... 910 Tarallo v. LaVallee..................................... 919 Tarlton v. Clark........................................ 934 Taro v. LaVallee......................................... 919 Tarr; Gregory v......................................... 922 Tarr; Whitmore v. 922 Tate v. Blackwell....................................... 928 Tennessee; Benton v..................................... 955 Tennessee; Hammond v.................................... 910 Tennessee; Harris v....................................... 711 Tennessee; Houston v...................................... 711 Tennessee; Hunter v....................................... 711 Tennessee; Snyder v..................................... 935 Tennessee; Williams v955 Texas; Branch v........................................... 952 Texas; Harris v........................................... 947 Texas; McKenzie v......................................... 952 Texas; Pruett v........................................... 912 Texas; Quintana v..........................i. 947 Texas; Summers v.......................................... 933 Texas; Tucker v........................................... 919 Texas; Turner v........................................... 947 Texas; Whan v............................................. 946 Texas Highway Dept. v. San Antonio Conservation Soc..... 932 Texas State Tile & Terrazzo Co. v. Plasterers......... 916,929 Theriault v. Harris....................................... 923 Thirty-seven (37) Photographs; United States v............ 924 Thomas v. Leeke........................................... 948 Thomas v. Pennsylvania.................................... 906 Thompson; Palmer v........................... i.. 217 Tilton v. Richardson...................................... 672 XXVI TABLE OF CASES REPORTED Page Timmons v. United States...................................... 920 Todd v. Northwest Airlines.................................... 910 Toth v. Russell............................................... 909 Township. See name of township. Trammell v. Deegan............................................ 920 Transportation Union v. Chicago & N. W. R. Co................. 904 Transportation Union; Chicago & N. W. R. Co. v................ 928 Transportation Union; Delaware & Hudson R. Co. v............ 911 Treasurer of Ohio v. Protestants United....................... 955 Tucker v. Texas........................................... 919 Tucker; United States v.................................... 930 Turner v. Texas............................................. 947 Turner v. United States..................................... 935 12 200-Ft. Reels of Super 8 mm. Film; United States v....... 930 2,606.84 Acres of Land in Tarrant County v. United States.. 912 Tyczkowski v. Pennsylvania.................................... 924 Unicorn Enterprises, Inc.; United States v.................... 925 Uniformed Sanitation Men v. Comm’r of Sanitation of N. Y.. 917 Union. See name of trade. Union Pacific R. Co. v. United States......................... 931 United. For labor union, see name of trade. United States; Ad Hoc Com. on Consumer Protection v.... 901 United States; Affiliated Ute Citizens of Utah v.............. 928 United States; Ali v......................................... 698 United States; Arenado v...................................... 908 United States; Armes v........................................ 936 United States; Baker v........................................ 904 United States; Bender v....................................... 924 United States v. B & H Dist. Corp............................. 927 United States; Billingsley v.................................. 909 United States; Bishop v....................................... 935 United States; Brossard v..................................... 924 United States; Bryant v....................................... 936 United States; Campbell v..................................910,941 United States; Carter v....................................... 920 United States; Castro v....................................... 903 United States; Chambers v..................................... 912 United States v. Cherry....................................... 942 United States; Clay v......................................... 698 United States; Cohen v........................................ 908 United States; Colton v....................................... 916 United States; Dandridge v.................................... 934 United States; Deans v........................................ 911 United States; Deming v....................................... 924 TABLE OF CASES REPORTED XXVII Page United States; DeSapio v................................... 941 United States; Dillon v.................................... 924 United States; Dubin v..................................... 936 United States; Eason v..................................... 941 United States; Edmondson v................................. 924 United States; Ethington v.............................. 908 United States; Evans v.................................. 924 United States; Fields v.................................... 907 United States; Flesch v......... i............. . i......... 924 United States; Ford Motor Co. v............................ 903 United States; Fort v...................................... 932 United States v. Freed..................................... 912 United States; Fried v....................................... 934 United States; Ginzburg v................................... 931 United States; Golembiewski v............................... 932 United States; Gonzales v.................................... 934 United States; Grasso v. . 920 United States; Groessel v................................... 933 United States; Hall v......................................... 906 United States v. Harris....................................... 573 United States; Harris v....................................... 924 United States; Harvey v....................................... 934 United States; Hayes v........................................ 919 United States; Hodges v....................................... 908 United States; Houston v...................................... 910 United States; Irving v....................................... 918 United States; Jack v......................................... 920 United States; Jackson v...................................... 906 United States; James v906 United States; Johns v...j.i............................. 933 United States v. Johnson...................................... 956 United States; Johnson v...................................... 922 United States; Karger v....................................... 919 United States; Kelley v....................................... 930 United States; Kotakes v...................................... 919 United States; Kyle v......................................... 935 United States; Lack v......................................... 935 United States; Lane v......................................... 934 United States; Lanier v....................................... 920 United States; Lloyd v........................................ 911 United States v. Louisiana.................................. 950 United States; Luna v......................................... 918 United States v. Luros...................................... 924 United States v. Maine....................................... 949 XXVIII TABLE OF CASES REPORTED Page United States; McBride v.................................. 920 United States v. Mitchell.................................. 190 United States; Mitchell v................................. 924 United States; New York Times Co. v............... 713,942,944 United States; Oliver v.................................. 934 United States; Orito v................................... 940 United States v. Paladini................................ 930 United States; Parker v.................................. 934 United States; Peterson v.................................. 907 United States; Piercefield v............................... 933 United States v. Plamondon................................. 930 United States; Polack v.................................... 931 United States; Posner v.................................... 924 United States; Ragsdale v.................................. 919 United States v. Reidel.................................... 924 United States; Roberts v................................... 936 United States; Saville v................................... 955 United States; Sid W. Richardson Foundation v............. 912 United States; Silverman v................................ 924 United States; Smalls v................................... 933 United States; Smothers v................................ 906 United States; Spieler v.................................. 912 United States; Stein v.................................... 905 United States; Sweig v.................................... 932 United States; Swift v.................................... 920 United States v. Thirty-seven (37) Photographs............. 924 United States; Timmons v................................... 920 United States v. Tucker.................................... 930 United States; Turner v.................................... 935 United States v. 12 200-Ft. Reels of Super 8 mm. Film.... 930 United States; 2,606.84 Acres of Land in Tarrant County v.. 912 United States v. Unicorn Enterprises, Inc.................. 925 United States; Union Pacific R. Co. v. . 931 United States v. U. S. District Court...................... 930 United States; Utah v.t................. 9 United States v. Various Articles of “Obscene” Merchandise. 942 United States ; Vollmer v. . 932 United States; Wallace v................................... 902 United States; Washington v................................ 940 United States v. Washington Post Co................. 713,943 944 United States; Webb v..........i........ 1..... i........ 919 United States; Webster v..................... j't'.......... 941 United States; Wells v................................... 935 United States; Wild v. 940 United States; Wilson v................................. 904 931 TABLE OF CASES REPORTED XXIX Page United States; Woodall v................................... 933 U. S. Civil Service Comm’n; Northern Va. Park Auth. v.... 936 U. S. District Court ; United States v..................... 930 U. S. District Court Chief Judge; Hite v................... 909 U. S. District Judge; Hallmark Industry v.................. 932 U. S. District Judge; Muncaster v........................ 930 U. S. District Judge; Odom v............................... 903 U. S. District Judge; Ruderer v^........................... 924 U. S. District Judge; Societe Industries Mechaniques Allies v. 905 U. S. ex rd. See name of real party in interest. United States Gypsum Co.; National Gypsum Co. v.......... 923 United States Steel Corp.; Fuhrman v....................... 924 United States Steel Corp.; Lamp v.......................... 940 Utah v. United States........................................ 9 Ute Citizens of Utah v. United States...................... 928 Valdez v. Craven........................................... 921 Van Hook v. Lloyd.......................................... 920 Van Hoomissen v. Hayse..................................... 927 Van Riper v. Illinois..................................... 918 Various Articles of “Obscene” Merchandise; United States v. 942 Varrella v. Varrella....................................... 909 Vaughn v. New Mexico....................................... 933 V. E. B. Carl Zeiss, Jena v. Carl Zeiss Stiftung.......... 905 Vermont; Milne v........................................... 919 Village. See name of village. Virginia; English v.................................... 907 Virginia; Manley v. 936 Vollmer v. United States............................... 932 Wainwright; Dawson v................................... 939 Wainwright; Milton v................................... 904,951 Wallace v. United States............................... 902 Warden. See also name of warden. Warden; Nelson v....................................... 924 Warden; Simms v........................................ 909 Washington; Adams v.................................... 947 Washington; Aiken v.................................... 946 Washington; Barger v................................... 918 Washington v. General Motors Corp...................... 949 Washington; Hite v..................................... 933 Washington v. United States............................ 940 Washington; Wheat v................................... 946 Washington Post Co.; United States v............... 713,943,944 Waterhouse v. Mitchell................................. 918 Webb v. United States.................................. 919 XXX TABLE OF CASES REPORTED Page Webster v. United States................................. 941 Weis v. Mancusi.......................................... 921 Wells v. United States................................... 935 Westbrook v. Mihaly...................................... 922 Westbrook; Mihaly v...................................... 915 West Haven; Jimmie’s Inc. v.............................. 931 West Virginia; Patlogan v................................ 903 Westwego; Chabert v...................................... 918 Wetherill; Polsky v...................................... 916 Whan v. Texas............................................ 946 WHDH, Inc. v. Federal Com. Comm’n........................ 923 Wheat v. Washington...................................... 946 Whichard, In re.......................................... 940 Whitcomb v. Chavis................................... 124,914 White v. Cardwell........................................ 921 Whitmore v. Tarr......................................... 922 Widziewicz v. New York................................... 908 Wigglesworth v. Ohio................................... 947 Wild v. United States.................................... 940 Williams v. Nelson....................................... 933 Wilhams v. North Carolina................................ 948 Williams v. Seegers...................................... 955 Williams v. Tennessee.................................... 955 Willis v. Dutton......................................... 932 Wilson; Gooding v........................................ 930 Wilson v. Florida........................................ 947 Wilson v. United States.............................. 904,931 Winegar v. Michigan...................................... 935 Wingo; Harris v.......................................... 930 Wingo; Lane v............................................ 921 Wisconsin; Eisenberg v................................... 940 Wolff v. Buchkoe......................................... 909 Woodall v. United States................................. 933 Zomer v. Oregon.......................................... 936 TABLE OF CASES CITED Page Aaron v. McKinley, 173 F. Supp. 944 632 Abate v. Mundt, 403 U. S. 182 165,166,169,179 Abington School Dist. v. Schempp, 374 U. S. 203 622, 643-651, 658, 659, 665, 680 Ackerman, In re, 424 F. 2d 1148 205 Adderley v. Florida, 385 U. S. 39 19 Adickes v. S. H. Kress & Co., 398 U. S. 144 241,242,268 Agier, In re, 19 Ohio St. 2d 70 549 Agnello v. United States, 269 U. S. 20 451,456,459 Aguilar v. Texas, 378 U. S. 108 449,499,576- 578, 581, 585-594, 601 Alexander v. Holmes County Bd. of Ed., 396 U. S. 19 956 Algoma Plywood v. Wisconsin Bd, 336 U. S. 301 317 Alleghany Corp. v. Commissioner, 28 T. C. 298 363 Allen v. State Bd. of Elections, 393 U. S. 544 149 Amos v. United States, 255 U. S. 313 392,394 Anderson v. Martin, 375 U. S. 399 234,266 Angello v. Metropolitan Life Ins, 430 F. 2d 7 193 Apache County v. United States, 256 F. Supp. 903 119 Ashe v. Swenson, 397 Ü. S. 436 385-387 Ashton v. Kentucky, 384 U. S. 195 23 Associated Press v. NLRB, 301 U. S. 103 67 Associated Press v. Walker, 388 U. S. 130 30,42,43,78 Page Association. For labor union, see name of trade. Atchison, T. & S. F. R. Co. v. Atchison, 47 Kan. 712 649 Auto Workers v. Russell, 356 U. S. 634 291,297,318 Auto Workers v. Wisconsin Bd, 336 U. S. 245 291 Avery v. Midland County, 390 U. S. 474 169,185,187,189 Ayers, In re, 123 U. S. 443 395,402 Azar v. Azar, 239 La. 941 202 Bailey v, Patterson, 199 F. Supp. 595 246 Baird v. State Bar of Arizona, 401 U. S. 1 210 Baker v. Carr, 369 U. S. 186 167, 169, 170, 174, 180 Baldwin v. Franks, 120 U. S. 678 104 Bantam Books v. Sullivan, 372 U. S. 58 714 Barr v. Matteo, 360 U. S. 564 411 Bates v. Little Rock, 361 U. S. 516 81 Baumgartner v. United States, 322 U. S. 665 26 Beauharnais v. Illinois, 343 U. S. 250 720 Beckley Newspapers v. Hanks, 389 U. S. 81 31,78 Bell v. Burson, 402 U. S. 535 330,374,902 Bell v. Hood, 71 F. Supp. 813 405 Bell v. Hood, 327 U. S. 678 389, 392, 396, 398-400, 403, 408, 427 Beller v. Askew, 403 U. S. 925 122 Bemis Bros. v. United States, 289 U. S. 28 392 Bender v. Pfaff, 282 U. S. 127 195 XXXI xxxn TABLE OF CASES CITED Page Page Bennett v. Laman, 277 N. Y. Brinegar v. United States, 368 744 338 U. S. 160 458, Benton v. Maryland, 395 462, 524, 582-584, 597 U. S. 784 385 Brotherhood. For labor Berger v. New York, 388 union, see name of trade. U. S. 41 394,499,593 Browder v. Gayle, 142 F. Bethea, In re, 215 Pa. Super. Supp. 707 245,248 75 542,560 Brown v. Bd. of Ed., 347 Bible v. State, 254 N. E. 2d U. S. 483 319 549 220, 221,243-248, 255, Birch v. Dodt, 2 Ariz. App. 262, 264-268, 272, 632 228 205 Brown v. Bd. of Ed., 349 Bivens v. Six Agents, 409 U. S. 294 256,272 F. 2d 718 398 Brown v. Louisiana, 383 Bivens v. Six Agents, 403 U. S. 131 245 U. S. 388 493 Brown v. South Carolina Blackburn v. Alabama, 361 Bd., 296 F. Supp. 199 633 U. S. 199 54 Bruton v. United States, Blair v. Commissioner, 300 391 U. S. 123 584,949,952 U. S. 5 197 Buchanan v. Warley, 245 Blonder-Tongue Labs. v. U. S. 60 226,231,256 U. of Ill. Found., 402 Buckley v. Hoff, 243 F. U. S. 313 53 Supp. 873 157 Bloom v. Illinois, 391 U. S. Burdeau v. McDowell, 256 194 216,532,540 U. S. 465 393,487 Blythe v. Hinckley, 180 Burnet v. Harmel, 287 U. S. U. S. 333 373 103 197 Board of Ed. v. Allen, 392 Burnett v. Commissioner, U. S. 236 264,612, 356 F. 2d 755 359 613, 616, 617, 621, 622, Burnette v. Davis, 382 U. S. 636, 643, 644, 654-657, 42 142,143 663, 679-681, 687, 689 Burns v. Richardson, 384 Boddie v. Connecticut, 401 U. S. 73 112,115,136,142- U. S. 371 330 144, 165, 177-179, 184 Boilermakers v. Hardeman, Burrus, In re, 4 N. C. App. 401 U. S. 233 395 523 538,556 Bolling v. Sharpe, 347 U. S. Burrus, In re, 275 N. C. 497 372 517 538,556 Bon Air Hotel v. Time, Inc., Burton v. Wilmington Park- 426 F. 2d 858 46 ing Auth., 365 U. S. 715 Boulden v. Holman, 394 232,244-246,252 U. S. 478 946-948 Bush v. Orleans Parish Boyd v. United States, 116 School Bd., 187 F. Supp. U. S. 616 412, 42 221,232,240,261-263 414, 453, 467, 497, 498 Bush v. Orleans Parish Boynton v. Virginia, 364 School Bd., 188 F. Supp. U. S. 454 245 916 221 Bradfield v. Roberts, 175 Bushman, In re, 1 Cal. 3d U. S. 291 633,643,663,679 767 17,27,28 Brandenburg v. Ohio, 395 Butler v. Michigan, 352 U. S. 444 68 U. S. 380 68 Breard v. Alexandria, 341 Byars v. United States, 273 U. S. 622 44 U. S. 28 393,395,487 TABLE OF CASES CITED XXXIII Page California v. Byers, 402 U. S. 424 . . 484 Camara v. Municipal Court, 387 U. S. 523 475 Cantwell v. Connecticut, 310 U. S. 296 20,210 Carey v. Westinghouse, 375 U.S. 261 310,311,313 Carrington v. Rash, 380 U. S. 89 5 Carroll v. United States, 267 U. S. 132 458-463, 475, 479, 504, 511, 524-527 Carter v. Jury Comm’n, 396 U. S. 320 248 Carter v. West Feliciana School Bd., 396 U. S. 290 247 Cavanagh v. Commissioner, 42 B. T. A. 1037 197 Chambers v. Maroney, 399 U. S. 42 457-460, 463, 464, 479, 482, 483, 504, 523-527 Champlin Rfg. Co. v. Com- mission, 286 U. S. 210 684 Chaplinsky v. New Hamp- shire, 315 U. S. 568 20,27 Chapman v. California, 386 U. S. 18 502 Chapman v. United States, 365 U. S. 610 468 Charles Dowd Box Co. v. Courtney, 368 U. S. 502 298,313,331 Chavis v. Whitcomb, 305 F. Supp. 1364 131 Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U. S. 103 727,741,758 Chimel v. California, 395 U. S. 752 456,457,461, 465-473, 476-483, 491, 492, 500, 503, 512-519 Chinese Exclusion Case, 130 U. S. 581 377 Chinn v. Canton (SD Miss. 1965) 252 Cinque v. Boyd, 99 Conn. 70 549 Cipriano v. Houma, 395 U. S. 701 4,5 City. See name of city. Page Civil Rights Cases, 109 U. S. 3 105 Clark v. Thompson, 206 F. Supp. 539 219,231,248- 251, 254, 255, 259, 270 Clark v. Thompson, 313 F. 2d 637 231,249 Clay v. Thornton, 253 S. C. 209 7 Clearfield Trust v. United States, 318 U. S. 363 403 Clyatt v. United States, 197 U. S. 207 105 Coffey v. State Ed. Finance Comm’n, 296 F. Supp. 1389 633 Cohen v. California, 403 U. S. 15 68,927 Cohen v. Laird, 315 F. Supp. 1265 703 Collins v. Hardyman, 341 U. S. 651 92-98 Commissioner v. Bosch Estate, 387 U. S. 456 197 Commissioner v. Harmon, 323 U. S. 44 197 Commissioner v. Heininger, 320 U. S. 467 352 Commissioner v. Hyman, 135 F. 2d 49 197 Commissioner v. Tellier, 383 U. S. 687 352,353,361 Commissioner of Internal Revenue. See Commissioner. Commonwealth v. Johnson, 211 Pa. Super. 62 545 Commonwealth v. Page, 339 Mass. 313 549 Communications Workers v. NLRB, 215 F. 2d 835 293 Connell v. Higginbotham, 403 U. S. 207 915 Construction Workers v. Laburnum Corp., 347 U. S. 656 318,319 Cook County v. Chicago Industrial School, 125 Ill. 540 654 Cooke v. United States, 267 U. S. 517 214 Coolidge v. New Hampshire, 403 U. S. 443 418,419 XXXIV TABLE OF CASES CITED Page Cooper v. Aaron, 358 U. S. 1 226,232,246, 256, 261, 265, 267, 632 Cooper v. California, 386 U. S. 58 457, 464, 465, 482.. 483, 505, 510, 513, 522, 524 Cox v. Louisiana, 379 U. S. 536 23,27 Cramp v. Bd. of Pub. In- struction, 137 So. 2d 828 211 Crandall v. Nevada, 6 Wall. 35 106,375 Crane v. New York, 239 U. S. 195 372 Curtis Pub. Co. v. Butts, 388 U. S. 130 30,42,57, 67, 69, 71, 72, 78, 81 D., In re, 27 N. Y. 2d 90 549 Daedler, In re, 194 Cal. 320 549 Dahnke-Walker Co. v. Bondurant, 257 U. S. 282 18 Dandridge v. Williams, 397 U. S. 471 366,371,376 Daniel Ball, The, 10 Wall. 557 10 Davis v. Mississippi, 394 U. S. 721 481 Davis v. United States, 328 U. S. 582 524 Dawson v. Mayor of Baltimore, 220 F. 2d 386 248,272 Day v. Northwest Div. 1055, 238 Ore. 624 280,305 DeBacker v. Brainard, 396 U. S. 28 532, 533,561 Debs, In re, 158 U. S. 564 741,754 De Jonge v. Oregon. 299 U. S. 353 720 Dept, of Conservation v. Tate, 231 F. 2d 615 245,272 Deputy v. Du Pont, 308 U. S. 488 352,353 DeStefano v. Woods, 392 U. S. 631 532, 543 DiCenso v. Robinson, 316 F. Supp. 112 667 Dillin v. Commissioner, 56 T. C. 228 197 District of Columbia v. Clawans, 300 U. S. 617 554 Page Dixon v. Dixon’s Executors, 4 La. 188 202 Dombrowski v. Pfister, 380 U. S. 479 270 Donnelly v. United States, 228 U. S. 243 584,594 Dorman v. United States, 140 U. S. App. D. C. 313 481 Douglas v. Alabama, 380 U. S. 415 541 Draper v. United States, 358 U. S. 307 586 Drueding v. Devlin, 234 F. Supp. 721 121,122 Dryden v. Commonwealth, 435 S. W. 2d 457 549 Duncan v. Cammell, Laird & Co., [1942] A. C. 624 757 Duncan v. Louisiana, 391 U. S. 145 532, 539, 540, 543, 547, 549, 554, 556, 557, 560, 561 Dusch v. Davis, 387 U. S. 112 179 Dyke v. Taylor Mfg. Co., 391 U. S. 216 457, 463, 464, 526, 527 Earley v. DiCenso, 403 U. S. 602 678, 685-688, 693, 694, 945 Edwards v. California, 314 U. S. 160 375 Edwards v. South Carolina, 372 U. S. 229 19,22,54 Ehlert v. United States, 402 U. S. 99 703 Electrical Workers v. NLRB, 113 U. S. App. D. C. 342 293 Electric Tachometer Corp. v. Commissioner, 37 T. C. 158 363 Elkins v. United States, 364 U. S. 206 455,488 Ellington v. Blumstein, 401 U. S. 934 122 Engel v. Vitale, 370 U. S. 421 634,693,694 Entick v. Carrington, 19 How. St. Tr. 1029 401,455 Epperson v. Arkansas, 393 U. S. 97 236,264 TABLE OF CASES CITED XXXV Page Erie R. Co. v. Tompkins, 304 U. S. 64 400 Estate. See name of estate. Estep v. United States, 327 U. S. 114 701 Estes v. Hopp, 73 Wash. 2d 263 549 Evans v. Abney, 396 U. S. 435 239,262 Evans v. Newton, 382 U. S. 296 262 Everson v. Bd. of Ed., 330 U. S. 1 611,616,621,633, 634, 640-644, 656, 663, 679, 680, 687, 693, 696 Ex parte. See name of party. Faubus v. Aaron, 361 U. S. 197 632 Fayson v. Beard, 134 F. Supp. 379 246 Feiner v. New York, 340 U. S. 315 20 Fernandez v. Mackell, 401 U. S. 66 927 Fernandez v. Wiener, 326 U. S. 340 202 First Fed. Sav. & Loan v. United States, 288 F. Supp. 477 346 Fitzpatrick v. Bd. of Election Comm’rs, 401 U. S. 905 121 Flast v. Cohen, 392 U. S. 83 611 Fletcher, In re, 251 Md. 520 549 Fletcher v. Peck, 6 Cranch 87 224,236 Florida ex rel. Hawkins v. Bd. of Control, 347 U. S. 971 272 Fong Yue Ting v. United States 149 U. S. 698 377 Fornaris v. Ridge Tool, 400 U. S. 41 211 Fortson v. Dorsey, 379 U. S. 433 142- 144, 160, 165, 176-179 Fortson v. Morris, 385 U. S. 231 . 6,439 Frazier v. Cupp, 394 U. S. 731 466,514, 515,520 Freedman v. Maryland, 380 U. S. 51 726 Page Frick v. Webb, 263 U. S. 326 373 Frozen Food Express v. United States, 351 U. S. 40 328 Fruit v. Metropolitan School Dist., 241 Ind. 621 174 Fucini, In re, 44 Ill. 2d 305 549 Gallegos v. Colorado, 370 U. S. 49 531,533 Gambino v. United States, 275 U. S. 310 392,487 Garner v. Teamsters, 346 U. S. 485 287,314 Garrison v. Louisiana, 379 U. S. 64 31,52,57,720 Gault, In re, 387 U. S. 1 531-534,538- 545, 549, 553, 557, 559 Gayle v. Browder, 352 U. S. 903 245 Gebbia v. New Orleans, 249 La. 409 202 General Bancshares v. Commissioner, 326 F. 2d 712 358 General Drivers v. NLRB, 179 F. 2d 492 304 Georgia Socialist Workers v. Fortson, 315 F. Supp. 1035 433 Ghioto v. Hampton, 371 U. S. 911 252 Giboney v. Empire Storage, 336 U. S. 490 27 Gillette v. United States, 401 U. S. 437 700,701,706,710 Gilligan v. Sweetenham, 401 U. S. 991 122 Gilmore v. United States, 154 Ct. Cl. 365 196 Giordano v. United States, 394 U. S. 310 699 Giordenello v. United States, 357 U. S. 480 449, 475, 588, 590, 594 Go-Bart Co. v. United States, 282 U. S. 344 454,465,470 Goldberg v. Kelly, 397 U. S. 254 366,374 XXXVI TABLE OF CASES CITED Page Gomillion v. Lightfoot, 364 U. S. 339 5, 149, 177, 225, 264, 265 Gonzalez v. National Surety. 266 F. 2d 667 197 Goodell v. Koch, 282 U. S. 118 195,196 Gordon v. Lance, 403 U. S. 1 165,166,913-915,927 Gorin v. United States, 312 U.S. 19 739,740 Gouled v. United States, 255 U. S. 298 454,481 Graham v. Richardson, 403 U. S. 365 927 Gray v. Sanders, 372 U. S. 368 4,141,165,166,177 Green v. County School Bd., 391 U. S. 430 246,265 Greenbelt Pub. Assn. v. Bresler, 398 U. S. 6 31,43,78 Griffin v. Breckenridge, 403 U. S. 88 242,268,928 Griffin v. County School Bd., 377 U. S. 218 221-225,231, 236, 246, 263-266, 632 Griffin v. State, 202 So. 2d 602 384 Griswold v. Connecticut, 381 U. S. 479 48,49, 79, 233, 235, 237, 500 Guaranty Trust v. York, 326 U. S. 99 400,404,405 Gunn v. University Committee, 399 U. S. 383 138,914 Guss v. Utah Labor Bd., 353 U. S. 1 315,316,331 Hadley v. Junior College Dist., 397 U. S. 50 165,166,186 Haley v. Ohio, 332 U. S. 596 531 533 Hall v. Beals, 396 U. S. 45 ’ 121 Hall v. St. Helena School Bd., 197 F. Supp. 649 262,632 Hampton v. Jacksonville, 304 F. 2d 320 252 Hanes v. Shuttlesworth, 310 F. 2d 303 246 Hanna Mining v. Marine Engineers, 382 U. S. 181 317 Page Harfst v. Hoegen, 349 Mo. 808 649 Harisiades v. Shaughnessy, 342 U. S. 580 377 Harper v. Virginia Bd. of Elections, 383 U. S. 663 5 Harrington v. California, 395 U. S. 250 502 Harris v. United States, 331 U. S. 145 476-478, 503, 514, 524 Harris v. United States, 382 U. S. 162 214 Harris v. United States, 390 U. S. 234 466 Harrison v. Schaefer, 383 U. S. 269 142,143 Hauenstein v. Lynham, 100 U. S. 483 .373 Hayes v. Lt. Gov. of Hawaii, 401 U. S. 968 121 Heim v. McCall, 239 U. S. 175 373 Helvering v. Stuart, 317 U. S. 154 197 Helvering v. Winmill, 305 U. S. 79 352,358 Henderson’s Estate v. Commissioner, 155 F. 2d 310 197 Hester v. United States, 265 U. S. 57 393, 465, 509, 513, 515, 521 Hill v. Commissioner, 32 T. C. 254 197 Hines v. Davidowitz, 312 U. S. 52 377,378 Hirabayashi v. United States, 320 U. S. 81 372,722,727,741 Hoeper v. Tax Comm’n, 284 U. S. 206 197 Holley v. Portsmouth, 150 F. Supp. 6 246 Holmberg v. Annbrecht, 327 U. S. 392 400,404 Holmes v. Atlanta, 223 F. 2d 93 248 Holmes v. Atlanta, 350 U. S. 879 244r-247,262 Hopkins v. Bacon, 282 U. S. 122 195,196 Hopkins v. Youth Court, 227 So. 2d 282 549 TABLE OF CASES CITED XXXVII Page Hosack v. Smiley, 276 F. Supp.876 208 Howard v. Lyons, 360 U..S. 593 409 Huckle v. Money, 2 Wils. 205 82 Humphrey v. Moore, 375 U. S. 335 298,299 Hunt v. Commissioner, 22 T. C. 228 197 Hunter v. Erickson, 393 U. S. 385 5, 178, 231, 232, 240, 266 Husty v. United States, 282 U. S. 694 458,524-526 Illinois v. Allen, 397 U. S. 337 214 In re. See name of party. Internal Revenue Service. See Commissioner. International. For labor union, see name of trade. Interstate Transit Lines v. Commissioner, 319 U. S. 590 352 Iowa Southern Utilities v. Commissioner, 333 F. 2d 382 358 Iron Workers v. Perko, 373 U. S. 701 295-297,308 Irvine v. California, 347 U. S. 128 413,418,491 Ivanhoe Irrig. Dist. v. Mc- Cracken, 357 U. S. 275 694 Jackson v. Ogilvie, 401 U. S. 904 122 Jacobellis v. Ohio, 378 U. S. 184 54 Jacobs v. United States, 290 U. S. 13 397 James v. Louisiana, 382 U. S. 36 456 James v. Valtierra, 402 U. S. 137 231 Jenkins v. Andover, 103 Mass. 94 649 Jenness v. Fortson, 403 U. S. 431 122 J. I. Case Co. v. Borak, 377 U. S. 426 397, 402, 403, 406, 407, 411 Johnson, In re, 254 Md. 517 549 Page Johnson v. United States, 228 U. S. 457 415 Johnson v. United States, 333 U. S. 10 449,450,468,512 Johnson v. Virginia, 373 U. S. 61 245 Jones v. Alfred H. Mayer Co., 392 U. S. 409 97, 105, 226, 227, 241, 268 Jones v. E. Hulton & Co., [1909] 2 K. B. 444 87 Jones v. United States, 357 U. S. 493 451, 455, 468, 480, 492, 512 Jones v. United States, 362 U. S. 257 578-581,597 J. W., In re, 106 N. J. Super. 129 549 Katz v. United States, 389 U. S. 347 394,450, 455, 467, 475, 481, 499 Katzenbach v. Morgan, 384 U. S. 641 107 Kelley v. Post Pub. Co., 327 Mass. 275 80 Kent v. Dulles, 357 U. S. 116 742 Kent v. United States, 383 U. S. 541 531-534,541 Ker v. California, 374 U. S. 23 451- 453, 466, 470, 472, 473, 476, 490, 491, 506, 507 Kilgarlin v. Hill, 386 U. S. 120 142-144 Killough v. United States, 114 U. S. App. D. C. 305 413 Kimes v. Commissioner, 55 T. C. 774 197 King v. Smith, 392 U. S. 309 366,371 Kirkpatrick v. Preisler, 394 U. S. 526 111,112, 141, 162, 165, 187, 188 Klahr v. Goddard, 250 F. Supp. 537 110 Klahr v. Williams, 289 F. Supp. 829 110 Klahr v. Wilhams, 313 F. Supp. 148 112 Knight v. Bd. of Regents, 269 F. Supp. 339 208 XXXVIII TABLE OF CASES CITED Page Korematsu v. United States, 323 U. S. 214 372 Kramer v. Union School Dist., 395 U. S. 621 5 Kretchet v. United States, 284 F. 2d 561 705 Labor Board. See NLRB. Labor union. See name of trade. Lammon v. Feusier, 111 U. S. 17 396 Lane v. Wilson, 307 U. S. 268 641,692 Laudati v. Stea, 44 R. I. 303 87 Law Students Council v. Wadmond, 401 U. S. 154 210 Leary v. United States, 395 U. S. 6 903,916 Lee v. Macon County Bd., 231 F. Supp. 743 633 Lee v. Macon County Bd., 267 F. Supp. 458 632 Leger v. Sailer, 321 F. Supp. 250 370 Lehman v. Laird, 430 F. 2d 96 703 Leland v. Oregon, 343 U. S. 790 548 Lemon v. Kurtzman, 403 U. S. 602 678, 685-688, 693, 694, 945 Lewis v. United States, 385 U. S. 206 466,509 Liberty Lobby v. Pearson, 129 U. S. App. D. C. 74 754 Lindsley v. Natural Car- bonic Gas, 220 U. S. 61 371 Linn v. Plant Guard Work- ers, 383 U. S. 53 31, 44, 297, 318, 319 Local. For labor union, see name of trade. Local 174 v. Lucas Flour, 369 U. S. 95 314,331 Lockridge v. Street Employ- ees, 84 Idaho 201 281 Lodico v. Bd. of Supervi- sors, 256 F. Supp. 440 183 Logan v. United States, 144 U. S. 263 104 Lombard v. Louisiana, 373 U. S. 267 241 Page Longshoremen v. Ariadne Shipping, 397 U. S. 195 326 Loving v. Virginia, 388 U. S. 1 233, 236, 241, 266, 271, 372 Lucas v. Colorado Gen. As- sembly, 377 U. S. 713 142,163,234 Machinists v. Gonzales, 356 U. S. 617 281, 282, 285, 293-297, 302, 308, 309, 319, 322-324 Mackey v. United States, 401 U. S. 667 491 Malloy v. Hogan, 378 U. S. 1 541 Mancusi v. DeForte, 392 U. S. 364 450 Mann v. Davis, 245 F. Supp. 241 143 Mapp v. Ohio, 367 U. S. 643 408, 412, 414, 417, 420, 453, 473, 490, 491, 498 Marbury v. Madison, 1 Cranch 137 397,401 Marron v. United States, 275 U. S. 192 394,467, 470, 475, 507, 514, 515 Martin v. Struthers, 319 U. S. 141 44 Martin v. Waddell, 16 Pet. 367 10 Maryland Committee v. Tawes, 377 U. S. 656 162 Matthews v. Handley, 179 F. Supp. 470 174 Mau v. Rio Grande Oil, 28 F. Supp. 845 80 Maxwell v. Bishop, 398 U. S. 262 946-948 Mayberry v. Pennsylvania, 400 U. S. 455 216 Mayor of Baltimore v. Dawson, 350 U. S. 877 244-248,262,272 McCloud, In re (Family Ct. of Prov., R. I., 1971) 562 McCollum v. Bd. of Ed., 333 U. S. 203 640 McCray v. Illinois, 386 U. S. 300 585 McCready v. Virginia, 94 U. S. 391 373 TABLE OF CASES CITED XXXIX Page McDonald v. United States, 335 U. S. 451 455,467,468 McGee v. United States, 402 U. S. 479 902 McGowan v. Maryland, 366 U. S. 420 371,640, 663 McGuire v. United States, 273 U. S. 95 393 McKeiver, In re, 215 Pa. Super. 760 535 McLaughlin v. Florida, 379 U. S. 184 236,241,270,372 McLaurin v. Oklahoma Regents, 339 U. S. 637 267 McLoughlin v. New York Edison Co., 252 N. Y. 202 393 McMullen v. Geiger, 184 Neb. 581 549 Melvin v. Reid, 112 Cal. App. 285 80 Messersmith v. Messersmith, 229 La. 495 202 Meyer v. Nebraska, 262 U. S. 390 631 Miller v. United States, 357 U. S. 301 418,422,512 Miranda v. Arizona, 384 U. S. 436 946 Missouri, K. & T. R. Co. v. May, 194 U. S. 267 407 Mitchell v. Commissioner, 51 T. C. 641; 430 F. 2d 1 192 Molinaro v. New Jersey, 396 U. S. 365 949 Monitor Patriot Co. v. Roy, 401 U. S. 265 31,48,51 Monroe v. Pape, 365 U. S. 167 102,409 Montgomery v. Dennison, 363 Pa. 255 83 Montgomery v. Philadelphia, 392 Pa. 178 37,49 Moorhead v. Ft. Lauderdale, 152 F. Supp. 131 246 Mora v. McNamara, 128 U. S. App. D. C. 297 727 Morey v. Doud, 354 U. S. 457 371 Morgan v. Commissioner, 309 U. S. 78 197 Muir v. Louisville Park Assn., 347 U. S. 971 244,272 Page Nathanson v. United States, 290 U. S. 41 578, 582-594, 597, 598, 601 NAACP v. Alabama, 357 U. S. 449 268 NAACP v. Button, 371 U. S. 415 64 NAACP v. Thompson, 357 F. 2d 831 246 NLRB v. Acme Industrial Co., 385 U. S. 432 310 NLRB v. Allied Union, 238 F. 2d 120 293 NLRB v. Gissel Packing Co., 395 U. S. 575 731 NLRB v. Holcombe, 325 F. 2d 508 327 NLRB v. Jones & Laughlin Steel, 301 U. S. 1 684 NLRB v. Leece-Neville Co., 330 F. 2d 242 293 NLRB v. Spector Freight System, 273 F. 2d 272 293 NLRB v. Strong, 393 U. S. 357 310 NLRB v. Tanner Motor Livery, 349 F. 2d 1 327 Neagle, In re, 135 U. S. 1 395 Near v. Minnesota, 283 U. S. 697 714,723- 726, 748, 749, 754, 761 Negre v. Larsen, 401 U. S. 437 706,710 Newman v. Piggie Park Enterprises, 390 U. S. 400 268 New Orleans Park Assn. v. Detiege, 252 F. 2d 122; 358 U. S. 54 245,248 New York Times v. Sullivan, 376 U. S. 254 30-32, 37, 40-47, 52, 55-57, 59-63, 65, 69-71, 78, 80-83, 720, 724 Nieves v. United States, 280 F. Supp. 994 549 Nixon v. Condon, 286 U. S. 73 395 Nixon v. Herndon, 273 U. S. 536 396 Northern Securities v. United States, 193 U. S. 197 752,759 XL TABLE OF CASES CITED Page Nostrand v. Little, 362 U. S. 474 209 Ocala Star-Banner v. Dam- ron, 401 U. S. 295 31 Ohio ex rel. Clarke v. Decke- bach, 274 U. S. 392 373 Ohlson v. Phillips, 304 F. Supp. 1152 208 Old Colony R. Co. v. Com- missioner, 284 U. S. 552 355,359 Oliver, In re, 333 U. S. 257 215 Olmstead v. United States, 277 U. S. 438 414 Opinion of the Justices, 214 Mass. 599 648,649 Oregon v. Mitchell, 400 U. S. 112 106,107,119,123, 165, 170, 234, 270, 375 Organization for Better Aus- tin v. Keefe, 402 U. S. 415 21, 22, 25, 714, 723, 748 Otken v. Lamkin, 56 Miss. 758 649 Oyama v. California, 332 U. S. 633 372,373 Palmer v. Thompson, 391 F. 2d 324 254 Palmer v. Thompson, 419 F. 2d 1222 253 Parker v. State ex rel. Pow- ell, 133 Ind. 178 174 Passenger Cases, 7 How. 283 106,375 Patsone v. Pennsylvania, 232 U. S. 138 373 Pennekamp v. Florida, 328 U. S. 331 53 Pennsylvania R. Co. v. United States, 363 U. S. 202 328 People v. Cohen, 1 Cal. App. 3d 94 17,28 People v. Crane, 214 N. Y. 154 373,374 People v. Defore, 242 N. Y. 13 413 People v. Tarantino, 45 Cal. 2d 590 487 Perham, In re, 104 N. H. 276 549 Peyton v. Nord, 78 N. M. 717 549 Page Phelps Dodge Corp. v. NLRB, 313 U. S. 177 307 Phillips v. Phillips, 160 La. 813 199 Pickering v. Bd. of Ed., 391 U. S. 563 31 Pierce v. Society of Sisters, 268 U. S. 510 629, 631, 654, 655, 663 Plessy v. Ferguson, 163 U. S. 537 226 Plumbers v. Borden, 373 U. S. 690 295-297,305,308 Poe v. Seaborn, 282 U. S. 101 195,196,203,204 Poindexter v. Louisiana Comm’n, 275 F. Supp. 833 633 Poindexter v. Louisiana Comm’n, 296 F. Supp. 686 632 Pointer v. Texas, 380 U. S. 400 541 Pollard’s Lessee v. Hagan, 3 How. 212 10 Pope v. United States, 392 U. S. 651 948 Porterfield v. Webb, 263 U. S. 225 373 Pratt v. Begley (No. 1044, O.T. 1970) 122 Preston v. United States, 376 U. S. 364 457,505,526 Purcell v. Westinghouse Broadcasting, 411 Pa. 167 38 Purdy & Fitzpatrick v. California, 71 Cal. 2d 566 376 Quarles, In re, 158 U. S. 532 104» Radio Officers v. NLRB, 347 U. S. 17 284,327 Railroad Comm’n v. Pull- man Co., 312 U. S. 496 211 Ramos v. Commissioner, 429 F. 2d 487 193 Ramsey v. NLRB, 327 F. 2d 784 310 Red Lion Broadcasting v. FCC, 395 U. S. 367 47,328 Reetz v. Bozanich, 397 U. S. 82 211 Reitman v. Mulkey, 387 U. S. 369 7,221,223, 224, 231, 232, 236, 240 Retail Clerks v. Schermer- horn, 373 U. S. 746 317 TABLE OF CASES CITED xli Page Page Reynolds v. Sims, 377 U. S. Schonek v. WJAC, Inc., 436 533 109,114,117, Pa. 78 37 123, 141, 142, 157, 162, Sciandra v. Lynett, 409 Pa. 163, 170, 174-176, 178, 595 38,49 180, 181, 185, 187, 188 Screws v. United States, 325 Richardson v. Graham, 313 U. S. 91 102 F. Supp. 34 368 See v. Seattle, 387 U. S. 541 475 Robinson v. DiCenso, 403 Shambaugh v. Scofield, 132 • U. S. 602 F. 2d 345 205 685-688, 693, 694, 945 Shapiro v. Thompson, 394 Rochester Tel. Corp. v. U. S. 618 105,270,366,368, United States, 307 U. S. 374-376, 379, 381, 382 125 328 Shelley v. Kraemer, 334 Rochin v. California, 342 U. S. 1 271 U. S. 165 491,498 Shelton, In re, 5 N. C. App. Rosado v. Wyman, 397 U. S. 487 538 397 366,694 Sherbert v. Verner, 374 U. S. Rosenblatt v. Baer, 383 U. S. 398 374,614,664 75 31,41,46,48,78 Shields v. Atlantic C. L. R. Roth v. United States, 354 Co., 350 U. S. 318 938 U. S. 476 20,720,726 Shipley v. California, 395 Rowan v. Post Office Dept., U. S. 818 456 397 U. S. 728 21 Shively v. Bowlby, 152 U. S. Sabbath v. United States, 1 10 391 U. S. 585 512 Shuttlesworth v. Gaylord, Saenger v. Commissioner, 69 202 F. Supp. 59 246 F. 2d 633 197 Sibron v. New York, 392 Sailer v. Leger, 403 U. S. U. S. 40 475 365 927 Sicurella v. United States, Sailors v. Bd. of Ed., 387 348 U. S. 385 704,705,710 U. S. 105 185 Sidis v. F-R Pub. Corp., 113 St. Amant v. Thompson, 390 F. 2d 806 80 U. S. 727 31,52,56 Silverman v. United States, St. Petersburg v. Alsup, 238 365 U. S. 505 394 F. 2d 830 245 Silverthorne Lumber v. Samuels v. Mackell, 401 United States, 251 U. S. U. S. 66 927 385 451 San Diego Council v. Gar- Simkins v. Moses H. Cone mon, 359 U. S. 236 276, Hosp., 323 F. 2d 959 694 277, 284-288, 291-310, Simmons v. Cullen, 197 F. 313-319, 325, 326, 330 Supp. 179 196 Savin, In re, 131 U. S. 267 215 Simpson v. State, 237 So. 2d Schaefer v; Thomson, 251 F. 341 386 Supp. 450 143 Sims v. Baggett, 247 F. Schenck v. United States, Supp. 96 149 249 U. S. 47 726,761 Singer v. United States, 380 Scher v. United States, 305 U. S. 24 554 U. S. 251 459,524 Singleton v. Jackson School Schmerber v. California, 384 Dist., 348 F. 2d 729; 355 U. S. 757 414,498 F. 2d 865; 419 F. 2d 1211; Schnabel v. Meredith, 378 426 F. 2d 1364; 430 F. 2d Pa. 609 37 368; 432 F. 2d 927 247 XLII TABLE OF CASES CITED Page Sirak v. Brown, 400 U. S. 809 121 Slaughter-House Cases, 16 Wall. 36 106,220 Slochower v. Bd. of Ed., 350 U. S. 551 208 Smith v. California, 361 U. S. 147 650 Smith v. Donnelly, 65 F. Supp. 415 197 Smith v. Evening News, 371 U. S. 195 297-301, 311, 313, 314, 324, 331 Smith v. Paris, 257 F. Supp. 901 149 Smith v. YMCA, 316 F. Supp. 899 252 Sniadach v. Family Finance Corp, 395 U. S. 337 331 Socialist Labor Party v. Gilligan, 401 U. S. 991 122 Speiser v. Randall, 357 U.S. 513 50,53,209,650 Spinelli v. United States, 382 F. 2d 871 585 Spinelli v. United States, 393 U. S. 410 499,576-598,601 Sprague v. Ticonic Nat. Bk, 307 U. S. 161 404,405 Stanford v. Texas, 379 U. S. , 476 467 Stanley v. Georgia, 394 U. S. 557 394,465,467,515 State. See also name of State. State v. Koonce, 89 N. J. Super. 169 395 State v. Turner, 253 Ore. 235 549 State ex rel. Nevada Orphan Asylum v. Hallock, 16 Nev. 373 649 State ex rel. Public School Dist. v. Taylor, 122 Neb. 454 649 Steele v. Louisville & N. R. Co, 323 U. S. 192 307 Steele v. United States, 267 U. S. 498 465,469,470,508 Steelworkers v. American Mfg. Co, 363 U. S. 564 312 Steelworkers v. Warrior & Gulf, 363 U. S. 574 312 Page Stewart v. Parish School Bd, 310 F. Supp. 1172 4 Stoner v. California, 376 U. S. 483 456 Stout v. Bottorff, 249 F. Supp. 488 162,163 Street v. New York, 394 U. S. 576 27 Stromberg v. California, 283 U. S. 359 18,704,705 Succession of Wiener, 203 La. 649 200,201 Summit Hotel Co. v. NBC, 336 Pa. 182 87 Swafford v. Templeton, 185 U. S. 487 396 Swann v. Adams, 385 U. S. 440 162,163,185 Swann v. Charlotte-Mecklenburg Bd. of Ed, 402 U. S. 1 404,956 Sweatt v. Painter, 339 U. S. 629 267 Sweetenham v. Gilligan (No. 790, O. T. 1970) 122 Synod of Dakota v. State, 2 S. D. 366 649 Taggart v. Weinacker’s, 397 U. S. 223 327 Takahashi v. Fish & Game Comm’n, 334 U. S. 410 368, 371, 372, 374, 377, 378, 382 Taylor v. Hearst, 107 Cal. 262 87 Taylor v. United States, 286 U. S. 1 468,469 Teamsters v. Morton, 377 U.S. 252 297,315,331 Teamsters v. NLRB, 365 U. S. 667 293 Terminiello v. Chicago, 337 U. S. 1 20 Terrace v. Thompson, 263 U. S. 197 373 Terrv, In re, 215 Pa. Super. 762 535 Terry, In re, 438 Pa. 339 536 Terry v. Ohio, 392 U. S. 1 414,475 Textile Workers v. Lincoln Mills, 353 U. S. 448 312,403,404 TABLE OF CASES CITED XLIII Page Thomas v. Mississippi, 380 U. S. 524 246 Thornhill v. Alabama, 310 U. S. 88 41 Tilton v. Richardson, 403 U. S. 672 634,642,659, 660, 664-668, 671, 945 Time, Inc. v. Hill, 385 U. S. 374 31,41,42, 45, 47, 50, 64, 65, 85 Time, Inc. v. McLaney, 406 F. 2d 565 46 Time, Inc. v. Pape, 401 U. S. 279 31,63,76,81 Tinker v. Des Moines School Dist., 393 U. S. 503 23,81 Tobias v. Laird, 413 F. 2d 936 703 Torcaso v. Watkins, 367 U. S. 488 640,693 Truax v. Raich, 239 U. S. 33 371,372,379 Trupiano v. United States, 334 U. S. 699 468, 469, 472, 476, 477, 482, 511, 512, 514, 519 Tunstall v. Locomotive Firemen, 323 U. S. 210 402 Tureaud v. Bd. of Supervisors, 347 U. S. 971 272 Turner v. Clay, 397 U. S. 39 8 Turner v. Memphis, 369 U. S. 350 245 Turner v. Williams, 194 U. S. 279 377 Twining v. New Jersey, 211 U. S. 78 104,106,375 Union. For labor union, see name of trade. United. For labor union, see name of trade. United Medical Labs. v. CBS, 404 F. 2d 706 46 United States v. Abbott, 425 F. 2d 910 703 United States v. Bess, 357 U. S. 51 205 United States v. Broyles, 423 F. 2d 1299 705 United States v. Cain, 149 F. 2d 338 705 United States v. Carolene Products, 304 U. S. 144 372 Page United States v. Classic, 313 U. S. 299 106,392 United States v. Curtiss-Wright Corp., 299 U. S. 304 727-729,741,756 United States v. Di Re, 332 U. S. 581 458 United States v. Englander, 271 F. Supp. 182 705 United States v. Erikson, 149 F. Supp. 576 705 United States v. Gilman, 347 U. S. 507 396 United States v. Goldberg, 330 F. 2d 30 487 United States v. Guest, 383 U. S. 745 105-107, 233, 239, 375 United States v. Harris, 106 U. S. 629 97,104 United States v. Haughton, 413 F. 2d 736 705 United States v. Heffron, 158 F. 2d 657 205 United States v. Hilton Hotels, 397 U. S. 580 353,358 United States v. Jackson, 206 F. Supp. 45 246 United States v. Jackson, 318 F. 2d 1 237,264 United States v. Jackson, 390U.S.570 236,270,684,948 United States v. Jakobson, 325 F. 2d 409 705 United States v. Jeffers, 342 U. S. 48 455 United States v. Lee, 106 U. S. 196 395 United States v. Lee, 274 U. S. 559 470, 508, 509, 513, 520, 524 United States v. Lefkowitz, 285 U. S. 452 449,465,470 United States v. Lemmens, 430 F. 2d 619 705 United States v. Malcolm, 282 U. S. 792 196 United States v. O’Brien, 391 U. S. 367 18,224 United States v, Oregon, 295 U. S, 1 10,11 United States v. Overman, 424 F. 2d 1142 205 XLIV TABLE OF CASES CITED Page United States v. Payne, 429 F. 2d 169 462 United States v. Price, 383 U.S. 787 97,268 United States v. Rabinowitz, 339 U. S. 56 456, 463, 469-471, 474- 478, 481,. 512, 514, 519 United States v. Raines, 362 U. S. 17 104 United States v. Reidel, 402 U. S. 351 927 United States v. Reynolds, 345 U. S. 1 757 United States v. Robbins, 269 U. S. 315 195,196,204 United States v. Seeger, 380 U. S. 163 700,702,703,705 United States v. Standard Oil, 332 U. S. 301 396, 403, 406, 407, 409 United States v. 37 Photographs, 402 U. S. 363 927 United States v. U. S. Coin & Currency, 401 U. S. 715 903,916 United States v. Utah, 283 U. S, 64 10 United States v. Ventresca, 380 U. S. 102 577,579,589 United States v. Vuitch, 402 U. S. 62 383 United States v. Waddell, 112 U. S. 76 104 United States v. Wade, 388 U. S. 218 414 United States v. Williams, 341 U. S. 70 98 U. S. ex rel. See name of real party in interest. U. S. Fidelity & Guaranty v. Green, 252 La. 227 201 Upton v. Times-Democrat Pub. Co., 104 La. 141 87 Utah v. United States, 394 U. S. 89 10 Vaca v. Sipes, 386 U. S. 171 298, 299, 301, 307, 314, 329, 330 Vale v. Louisiana, 399 U. S. 30 456 Valentine v. Chrestensen, 316 U. S. 52 44 Page Van Antwerp v. United States, 92 F. 2d 871 196 Wallace v. United States, 389 U. S. 215 632 Walls Mfg. Co. v. NLRB, 116 U. S. App. D. C. 140 327 Walz v. Tax Comm’n, 397 U. S. 664 612-615,620- 624, 627, 634, 643, 644, 649, 652, 663, 664, 677, 679, 684-686, 689, 696 Ward v. Miami, 151 F. Supp.593 246 Warden. See also name of warden. Warden v. Hayden, 387 U. S. 294 464-470,476, 480, 507, 508, 515, 519 Washington Sav. & Loan v. United States, 304 F. Supp. 1072 346 Watson v. Memphis, 373 U. S. 526 220, 226, 246, 256-260, 262 Webb v. O’Brien, 263 U. S. 313 373 Weber v. Anheuser-Busch, 348 U. S. 468 291 Weeks v. United States, 232 U. S. 383 394,395,408, 412, 420, 497, 512, 514 Weider v. Hoffman, 238 F. Supp. 437 75 Welch v. Helvering, 290 U.S. Ill 352,353 Wells v. Rockefeller, 394 U. S. 542 111, 112,141, 162, 176, 177, 187, 188 Welsh v. United States, 398 U. S. 333 665,700,703 Wesberry v. Sanders, 376 U. S. 1 165 West v. Cabell, 153 U. S. 78 396 Westermann Co. v. Dispatch Co., 249 U. S. 100 731 Western Maid, The, 257 U. S. 419 392 West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 210,234 Wheeldin v. Wheeler, 373 U. S. 647 397,409 TABLE OF CASES CITED XLV Page Whitcomb v. Chavis, 403 U. S. 124 8,123,187,243,914 Whiteley v. Warden, 401 U. S. 560 455,588,590,594 Whitney v. California, 274 U. S. 357 24,79 Wichita State Bk. & Tr. v. Commissioner, 69 F. 2d 595 359 Wickard v. Filburn, 317 U. S. Ill 694 Wiley v. Sinkler, 179 U. S. 58 396 Wilkes v. Wood, 19 How. St. Tr. 1153 455 Williams v. Bd. of Trustees, 173 Ky. 708 649 Williams v. Florida, 399 U. S. 78 491,543,557 Williams v. Rhodes, 393 U. S. 23 121,122,434-442 Williams v. United States, 216 F. 2d 350 700 Williams v. United States, 401 U. S. 646 456 Williamson v. Lee Optical, 348 U. S. 483 371 Willie v. Harris County, 202 F. Supp. 549 245 Willingham v. Morgan, 395 U. S. 402 391 Winship, In re, 397 U. S. 358 50,533,534,539, 541, 543, 545, 554, 560 Winterbottom v. Wright, 10 M. & W. 109 205 Winters v. New York, 333 U. S. 507 25 Wirtz v. Glass Blowers, 389 U. S. 463 338,342 Wirtz v. Laborers, 389 U. S. 477 338,342 Page Wisniewski v. United States, 47 F. 2d 825 459 Witherspoon v. Illinois, 391 U.S. 510 711,712,946-948 Witmer v. United States, 348 U. S. 375 700 Wolf v. Colorado, 338 U. S. 25 414,416,453,491 Wong Sun v. United States, 371 U. S. 471 449,476,481 Woodward v. Commissioner, 397 U. S. 572 353,358 Wright v. Georgia, 373 U. S. 284 256 Wright v. Rockefeller, 376 U. S. 52 156 Wright v. School Dist., 151 Kan. 485 649 Wyandotte Transportation v. United States, 389 U. S. 191 402 Wyman v. James, 400 U. S. 309 366 Yarbrough, Ex parte, 110 U. S. 651 104,106 Yates v. United States, 354 U. S. 298 18,720 Yick Wo v. Hopkins, 118 U. S. 356 371 Young, Ex parte, 209 U. S. 123 402 Younger v. Harris, 401 U. S. 37 243,927 Youngstown Sheet & Tube v. Sawyer, 343 U. S. 579 740,742,746,754 Ypparila v. United States, 219 F. 2d 465 705 Zap v. United States, 328 U. S. 624 515 Zorach v. Clauson, 343 U. S. 306 614,640,663-665 TABLE OF STATUTES CITED (A) Statutes of the United States Page Page 1792, May 8, e. 36, 1 Stat. 1933, June 10, c. 57, 48 Stat. 275, §2............. 388 122 ................. 713 1842, June 25, c. 47, 5 Stat. 1934, May 10, c. 277, 48 491, §2............. 124 Stat. 680, §§ 11, 12. 190 1871, Apr. 20, e. 22, 17 Stat. JUoo,6’8r Stat' 13 8 3 88 S3 I4, 27..... 388 1875, Mar’ 3, c. 137, 18 Stat. Ju c- 531> 49 Oct. 3, c. 63, 40 Stat. o°’ Str™«" 300, §§ 1, 201...... 190 fd. 7^’ 1919, Feb. 24, c. 18, 40 Stat. Iaai Vaak ' ’ Oet°% IT« ¿tat Oct ¿8, c. 85, 41 Stat. 1648, §§ n 12........ 190 1921, Nov. 23, c. 136, 42 Stat. 1938, ^t28^!!89^2 St&t' 190 227, §§210,211.... 190 1940 JuX§e U0 54 Stat !923, Mar^, c. 280, 42 Stat. °> 676, ’ aa amended', 1507 .............. 190 §9 712 1924, June 2, c. 234, 43 Stat. 1941, Nov. 15, c. 470, 55 253, §§ 210, 211.... 190 Stat. 761, § i... 124 1926, Feb. 26, c. 27, 44 Stat. 1949 Mar. 27, c. 199, 56 9, §§210,211........ 190 stat. 176, §301.... 713 1928, May 29, c. 852,45 Stat. june 25, c. 447, 56 791, §§11, 12....... 190 stat. 390, § 1........713 1929, June 18, c. 28, 46 Stat. 1946, Aug. 1, c. 724, 60 Stat. 21, §22.;........... 124 755, as amended, 1932, June 6, c. 209, 47 Stat. §§ 141-146, 224, 226, 169, §§ 11, 12... 190 227 ................. 713 July 22, c. 522,47 Stat. Aug. 2, c. 753, 60 Stat. 725, as amended... 345 812, Tit. IV.......388 XLVII xlviii TABLE OF STATUTES CITED Page Page 1947, June 23, c. 120, 61 1967, Dec. 14, Pub. L. 90- Stat. 136, §§101, 196, 81 Stat. 581... 124 203, 301, 303...... 274 1968, Sept. 21, Pub. L. 90- 1948, June 24, c. 625, 62 Stat. 505, 82 Stat. 856, 604, as amended. § 6 ...:...............345 §§ 6, 12............ 698 1969, Dec. 23, Pub. L. 91- 1950, June 27, c. 369, 64 151, 83 Stat. 371, Stat. 256, §§2, 7.. 345 §6 ................... 345 Aug. 28, c. 809, 64 Stat. Dec. 24, Pub. L. 91- 477, as amended, 152, 83 Stat. 379, §351 ............... 365 §416 ..................345 Sept. 23, c. 1024, 64 Dec. 30, Pub. L. 91- Stat. 987, §§ 1, 4, 172, 83 Stat. 487, 18 ............... 713 § 121 ................ 672 1951, Jan. 10, c. 1221, 64 1970, June 22, Pub. L. 91- Stat. 1239, § 1..... 443 285, 84 Stat. 314, 1952, June 27, c. 477,66 Stat. §201 ................. 108 163, as amended, 1971, Jan. 12, Pub. L. 91-§§ 212, 213, 241.... 365 679, 84 Stat. 2063.. 190 1954, Aug. 30, c. 1073, 68 Revised Statutes. Stat. 919, §1....... 713 §23 ..................... 124 1956, July 18, c. 629, 70 § 1977 ............. 217,365 Stat. 567, § 104.... 443 § 1978 ................ 217 1959, Sept. 14, Pub. L. 86- § 1979 .......... 88,217,388 257, 73 Stat. 519, § 1980 ........... 88,217 §§ 101, 103,201.... 274 §5519 ................. 88 §§401, 402......... 333 U. S. Code. §§ 603, 701, 704... 274 Title 2, § 2a..... 124 1961,Sept. 8, Pub. L. 87- Title 2 (Supp. V), § 2c. 124 210, 75 Stat. 482, Title 5 (1970 ed.), §§ 2, 3, 6.......... 345 §§554, 706............ 274 1963, Dec. 16, Pub. L. 88- Title 8 (1946 ed.), § 47. 88 204, 77 Stat. 363, Title 8, §§ 1182, 1183, §2 ................. 672 1251 ................. 365 § 101 ........ 602,672 Title 12, §§ 1421-1449, §§ 102-111, 401... 672 1725-1727, 1730....... 345 §404 ......... 602,672 Title 15, 1964, July 2, Pub. L. 88- §45 .................. 713 352, 78 Stat. 241, §§ 78n, 78aa.........388 § 301 .............. 217 Title 18, 1965, Aug. 6, Pub. L. 89- §§241, 242 ............ 88 110, 79 Stat. 437, §§792-799 ............ 713 §4 ................. 108 §§3052, 3053 ......... 443 Sept. 29, Pub. L. 89- Title 18 (Supp. V), 218, 79 Stat. 890... 443 §241 .................. 88 1966, June 3, Pub. L. 89-441, §§2510-2520 .......... 388 80 Stat. 192, §§ 1, 2, § 3056 ............... 443 3 .................... 9 Title 20, Aug. 23, Pub. L. 89- §701 ................. 672 542, 80 Stat. 349... 9 §§711-721 .... 602,672 1967, June 30, Pub. L. 90- §751 ................. 672 40, 81 Stat. 100, § 1. 698 § 754 .......... 602, 672 TABLE OF STATUTES CITED xlix Page Page U. S. Code—Continued. Civil Rights Act of 1964... 217 Title 20 (Supp. V), Espionage Act.............. 713 §§ 711-718 .... 602,672 Federal Home Loan Bank §751 ............. 672 Act ................... 345 Title 26, Federal Tort Claims Act... 388 §§ 1 3............. 190 Higher Education Facilities § 11 ............. 672 Act of 1963......... 602,672 §§ 162, 263........ 345 Immigration and Nationality §§511, 512........ 672 Act of 1952............. 365 § 5205 .......... 573 Internal Revenue Code of §§6013, 6321, 6331, 1939, §§11, 12.......,. 190 6334, 6651, 6653, Internal Revenue Code of 6654, 6901..... 190 1954, §7607 ............ 443 §§ 1, 3................ 190 Title 26 (Supp. V), §11 .................... 672 §512 ............. 672 §§ 162, 263............ 345 Title 28, §§511, 512.............. 672 § 1253 .......... 431 §5205 .................. 573 § 1257 ........... 15 §§6013,6321,6331,6334, § § 1331, 1343, 1442. 388 6651, 6653, 6654, §2281 ........ 431,602 6901 ................ 190 §2282 ............ 672 § 7607 ................. 443 § 2284 ... 431,602,672 Internal Security Act of Title 29, 1950 ................... 713 88 156-158 ........ 274 Labor Management Rela- §160 ......... 274,713 tions Act, 1947.... 274,713 §§ 164, 173, 185, 187, Labor-Management Report- 411, 413, 431.... 274 ing and Disclosure Act of §§481, 482......... 333 1959 ...............2.74’333 £ K9o 974 Military Selective Service Title 42 ............. Act of W67....................... 698 §§302, 1201-1206, National Defense Act of 1302, 1351-1355, ...... 1381-1385 365 National Housing Act 345 § 1981 217 365 National Labor Relations § 1982 .......... 217 Act 274,713 § 1983 .... 88,217,388 National Prohibition Act... 388 8 1985 . .. 88,217 Revenue Acts of 1917, 1918, 8 2000b ......... 217 1921, 1924, 1926, 1928, §§2161-2166, 2274, 1932, 1934, 1936, 1938... 190 2276, 2277...... 713 Safety Appliance Act......937 Title 45, § i et seq.. 937 Securities Exchange Act of Title 50, §783........ 713 1934.................... 388 Title 50 App., §§781, Social Security Act......... 365 1152 ............... 713 Subversive Activities Control Title 50 App. (Supp. Act of 1950............. 713 V),§§456, 462 ...... 698 Taft-Hartley Act........... 274 Administrative Procedure Tax Reform Act of 1969... 672 Act ....................... 274 Voting Rights Act Amend- Atomic Energy Act..........713 ments of 1970........... 108 Civil Rights Act of 1871... 88 Voting Rights Act of 1965.. 108 l TABLE OF STATUTES CITED (B) Constitutions and Statutes of the States and the District of Columbia Page Page Alabama. Georgia. Const., Art. XIV, § 263. 602 Const., Art. VIII, § 12. 602 Code, Tit. 13, §369... 528 Code Ann. §24-2420.. 528 Alaska. Code Ann. §§34- Const., Art. VII, § 1... 602 103,34-1001, 34-1002, Stat. §47.10.070....... 528 34-1004 to 34-1006, Arizona. 34—1008 to 34—1010, Const., Art. II, § 12; 34-1013 to 34—1015, Art. XI, §§ 7, 8 .... 602 34-1102, 34-1301 to Laws 1968, c. 1........ 108 34—1303, 34—1308, 34- Laws 1970, c. 223 ..... 528 1507, 34-1513 ........... 431 Laws 1970, 1st Spec. Hawaii. Sess., c. 1............ 108 Const., Art. IX, § 1... 602 Rev. Stat. Ann. §8-229. 528 Rev. Stat. § 12-32.5.... 124 Rev. Stat. Ann. §§16- Rev. Stat. §571-41.... 528 101, 16-702.......... 108 Idaho. Rev. Stat. Ann. §§ 46- Const,, Art. IX, § 5.... 602 233,46-252,46-272.. 365 Code §16-1813............ 528 Arkansas Illinois« Const., Art. XIV, §2.. 602 Const., Art. VIII, §3.. 602 Stat, Ann. § 45-206.... 528 Indiana. California. Const., Art. 4, §§4-6.. 124 Const., Art. IX, § 8.... 602 Const., Art. 8, § 3..... 602 Administrative Code, Const., Art. 10, §5.... 1 Tit. 10, c. 2..... 345 Const., Art. 16, § 1.... 124 Elections Code § 6830. 431 Acts 1965, c. 4, §§ 1, 3; Financial Code §5000 c. 5, §§ 1, 3............ 124 seq 345 Ann. Stat. § 9-3215.... 528 Penal Code § 415. *15 Ann. Stat. §§34-102, Colorado. 34-104 ............. 124 Const., Art. IX, §7... 602 Apportionment Act of Rev. Stat. Ann. §37- , 1965 .................... 124 IQ-94 WR Iowa- 19 24 .. .... ^ 02» Code §23227.............. 528 Rev Stat. Ann. §49- Kansas. 7-1 ................... 431 Const., Art. 6, §6.....602 Connecticut. Stat. Ann § 3^-808.... 528 Const., Art. VIII, §4.. 602 Kentucky. Delaware. Const. § 189............. 602 Const., Art. X, §3.... 602 Rev. Stat. §208.060... 528 Code Ann., Tit. 10, Louisiana. § 1175 ................ 528 Const., Art. XII, § 13.. 602 District of Columbia. Laws 1970, Act No. Code § 16-2316......... 528 232 ..................... 915 Florida. Civ. Code Ann., Arts. Const., Declaration of 2399, 2 4 0 2 - 2 4 0 6, Rights, Art. I, §3... 602 2409-2411 ............... 190 Stat. §39.09........... 528 Rev. Stat. Ann. §13:- Stat. §§ 876.05-876.10.. 207 1579 .................... 528 TABLE OF STATUTES CITED li Page Page Louisiana—Continued. North Dakota. Rev. Stat. Ann. §18:- Const., Art. VIII, § 152. 602 624 ................. 431 Cent. Code §27-16-18. 528 Rev. Stat. Ann. §47:- Ohio. 1909 , 47:1931, 47:- Const., Art. VI, § 2.... 602 1995 ................ 915 Const., Art. VIII, §3.. 1 Massachusetts. Rev. Code Ann. Const., Amend. Art. 8 215135 ............ 528 XLV1-§2.............. 602 Oklahoma. Michigan Const., Art. II, §5.... 602 Const, Art. I, §4..... 602 stat. Ann, Tit 10i Comp. Laws §712A.±7. 528 81110 S28 Minnesota. ~ $ Const., Art. VIII, §2.. 602 Oregon- + VTTT R9 Stat. §260.155 ........ 528 S qA siniA ' ™ Mississippi. Rev' Stat. § 419.498... 528 Const., Art. 8, § 208... 602 Pennsylvania. Code Ann. § 4065.3.... 217 Const., Art. 3, § 15.... 602 Code Ann. §7185-08... 528 Laws 1968, Act No. Missouri. 109 ................. 602 Const., Art. IX, §8... 602 Stat. Ann., Tit. 11, Rev. Stat. §211.171... 528 §§243, 245-247, 250, Montana. 269-402 ......... 528 Const., Art. XI, §8.... 602 gtat. Ann., Tit. 12, Rev. Codes Ann. §10- 88 1583, 1584a....... 29 604.1 ................. 528 s^t8 a^i, Tit. i8, Nebraska. gg ¿qno 4704 4708 Const, Art VII, § 11.. 602 4807, ¿i7 ’....’ 528 Rev. Stat. §43-206.03.. 528 Stat Ann, Tit 24, ^Const, Art. 11, § 10... 602 §§ 5601-5609 ..... 602 Rev. Stat. § 62.190.... 528 St?t’AnD-’ Tt 62’ New Hampshire. § 432 .............. ¿oo Const., Pt. II, Art. 83.. 602 Nonpubhc Elementary Rev.Stat. Ann. §595:1. 443 and Secondary Edu- New Jersey. cation Act........... 602 Const., Art. VIII, §4.. 602 Rhode Island. Stat. Ann. § 2A:4-35.. 528 Const., Art. XII, § 4... 602 New Mexico. Laws 1969, c. 246 ... 602 Const., Art. XII, § 3... 602 Gen. Laws Ann. § 12-7- New York. 10 ...................388 Const., Art. XI § 3... 602 Gen. £aws Ann. § 16- Civ. Prac. Law § 4101.. 528 t a 602 Code Crim. Proc. § 183. 388 ‘ ° ’ V¡7_ Election Law § 138.... 431 To_8 § 431 ^88 164 ?65Urt 528 Salary Supplement Act. 602 North Carolina. South Carolina. Const, Art. IX, §§ 4, Const Art. XI § 9 .. 602 12 602 Code Ann. § 15-1095.- Gen. Stat. §§ 7A-277, 19 .................. 528 7A-278, 7A-285, 14- South Dakota. 132 14-273, 20-174.1, Const, Art. VIII, § 16. 602 110^-24 ............. 528 Comp. Laws §26-8-31. 528 lii TABLE OF STATUTES CITED Page Page Tennessee. Washington. Const., Art. XI, § 12... 602 Const., Art. IX, § 4... 602 Code Ann. §27-111... 711 Rev. Code Ann. Texas. §13.04.030 ............. 528 Const., Art. Ill, §49.. 1 West Virginia. Const., Art. VII, § 5... 602 Const., Art. XII, § 4... 602 Rev. Civ. Stat. Ann., Const., Art. XIV, § 2.. 1 Art. 2338-1, § 13.... 528 Code Ann. § 49-5-6... 528 Utah. Wisconsin. Const., Art. X, § 13... 602 Const., Art. I, § 18.... 602 Code Ann. § 55-10-94.. 528 Const., Art. VIII, § 4.. 1 Vermont. Const., Art. X, §2.... 602 Stat. Ann., Tit. 33, Stat. Ann. §48.25....... 528 § 651 .............. 528 Wyoming. Virginia. Const., Art. 7, § 8..... 602 Const., Art. IX, §141. 602 Stat. Ann. § 14-115.24. 528 (C) Foreign Statute England. Magna Carta................................................ 528 CASES ADJUDGED IN THE SUPEEME COUET OF THE UNITED STATES AT OCTOBER TERM, 1970 GORDON et al. v. LANCE et al. CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 96. Argued January 18, 1971—Decided June 7, 1971 West Virginia’s constitutional and statutory requirement that political subdivisions may not incur bonded indebtedness or increase tax rates beyond those established by the State Constitution without the approval of 60% of the voters in a referendum election does not discriminate against or authorize discrimination against any identifiable class and does not violate the Equal Protection Clause or any other provision of the United States Constitution. Gray v. Sanders, 372 U. S. 368, and Cipriano v. City of Houma, 395 U. S. 701, distinguished. Pp. 4-8. 153 W. Va. 559, 170 S. E. 2d 783, reversed. Burger, C. J., delivered the opinion of the Court, in which Black, Douglas, Stewart, White, and Blackmun, JJ., joined. Harlan, J., filed a statement concurring in the result, post, p. 8. Brennan and Marshall, J J., filed a dissenting statement, post, p. 8. George M. Scott argued the cause and filed briefs for petitioners. Charles C. Wise, Jr., argued the cause for respondents. With him on the brief was J. Henry Francis, Jr. 1 2 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Briefs of amici curiae urging reversal were filed by Slade Gorton, Attorney General of Washington, and Philip H. Austin, Assistant Attorney General, for the State of Washington et al.; by Thomas M. O’ Connor for the City and County of San Francisco; by Francis R. Kirkham and Francis N. Marshall for the California Taxpayers’ Association; and by George E. Svoboda for Hayes Smith. Briefs of amici curiae urging affirmance were filed by James R. Ellis for Seattle School District No. 1; by Stephen J. Pollak, William H. Dempsey, Jr., Ralph J. Moore, Jr., and Robert H. Chanin for the National Education Association et al.; by August W. Steinhilber and Robert G. Dixon, Jr., for the National School Boards Association; by David R. Hardy and Robert E. Northrup for the Missouri State Teachers Association; by William B. Beebe, Hershel Shanks, and Allan I. Mendelsohn for the American Association of School Administrators et al.; by Melvin L. Wulf for the American Civil Liberties Union et al.; and by Paul W. Preisler for the Committee for the Equal Weighting of Votes. Briefs of amici curiae were filed by John W. Witt and Joseph Kase, Jr., for the City of San Diego et al., and by Chas. Claflin Allen, pro se. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to review a challenge to a 60% vote requirement to incur public debt as violative of the Fourteenth Amendment. The Constitution of West Virginia and certain West Virginia statutes provide that political subdivisions of the State may not incur bonded indebtedness or increase tax rates beyond those established by the Constitution without the approval of 60% of the voters in a referendum election. GORDON v. LANCE 3 1 Opinion of the Court On April 29, 1968, the Board of Education of Roane County, West Virginia, submitted to the voters of Roane County a proposal calling for the issuance of general obligation bonds in the amount of $1,830,000 for the purpose of constructing new school buildings and improving existing educational facilities. At the same election, by separate ballot, the voters were asked to authorize the Board of Education to levy additional taxes to support current expenditures and capital improvements. Of the total votes cast, 51.55% favored the bond issues and 51.51% favored the tax levy. Having failed to obtain the requisite 60% affirmative vote, the proposals were declared defeated. Following the election, respondents appeared before the Board of Education on behalf of themselves and other persons who had voted in favor of the proposals and demanded that the Board authorize the bonds and the additional taxes. The Board refused. Respondents then brought this action, seeking a declaratory judgment that the 60% requirements were unconstitutional as violative of the Fourteenth Amendment. In their complaint they alleged that the Roane County schools had been basically unimproved since 1946 and fell far below the state average, both in classroom size and facilities. They further alleged that four similar proposals had been previously defeated, although each had received majorities of affirmative votes ranging from 52.51% to 55.84%. The West Virginia trial court dismissed the complaint. On appeal, the West Virginia Supreme Court of Appeals reversed, holding that the state constitutional and statutory 60% requirements violated the Equal Protection Clause of the Fourteenth Amendment. 153 W. Va. 559, 170 S. E. 2d 783 (1969). We granted certiorari, 397 U. S. 1020 (1970), and for the reasons set forth below, we reverse. 4 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. The court below relied heavily on two of our holdings dealing with limitations on the right to vote and dilution of voting power. The first was Gray v. Sanders, 372 U. S. 368 (1963), which held that Georgia’s county-unit system violated the Equal Protection Clause, because the votes of primary electors in one county were accorded less weight than the votes of electors in other counties. The second was Cipriano v. City of Houma, 395 U. S. 701 (1969), in which we held impermissible the limitation to “property taxpayers” of the right to vote in a revenue bond referendum. From these cases the state court concluded that West Virginia’s requirement was constitutionally defective, because the votes of those who favored the issuance of the bonds had a proportionately smaller impact on the outcome of the election than the votes of those who opposed issuance of the bonds. We conclude that the West Virginia court’s reliance on the Gray and Cipriano cases was misplaced. The defect this Court found in those cases lay in the denial or dilution of voting power because of group characteristics—geographic location and property ownership—that bore no valid relation to the interest of those groups in the subject matter of the election; moreover, the dilution or denial was imposed irrespective of how members of those groups actually voted.1 Thus in Gray, supra, at 381 n. 12, we held that the county-unit system would have been defective even if unit votes were allocated strictly in proportion to population. We noted that if a candidate received 60% of the votes cast in a particular county he would receive that county’s entire unit vote, the 40% cast for the other 1 While Cipriano involved a denial of the vote, a percentage reduction of an individual’s voting power in proportion to the amount of property he owned would be similarly defective. See Stewart v. Parish School Board, 310 F. Supp. 1172 (ED La.), aff’d, 400 U. S. 884 (1970). GORDON v. LANCE 5 1 Opinion of the Court candidates being discarded. The defect, however, continued to be geographic discrimination. Votes for the losing candidates were discarded solely because of the county where the votes were cast. Indeed, votes for the winning candidate in a county were likewise devalued, because all marginal votes for him would be discarded and would have no impact on the statewide total. Cipriano was no more than a reassertion of the principle, consistently recognized, that an individual may not be denied access to the ballot because of some extraneous condition, such as race, e. g., Gomillion v. Lightfoot, 364 U. S. 339 (1960) ; wealth, e. g., Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); tax status, e. g., Kramer v. Union Free School Dist., 395 U. S. 621 (1969) ; or military status, e. g., Carrington v. Rash, 380 U. S. 89 (1965). Unlike the restrictions in our previous cases, the West Virginia Constitution singles out no “discrete and insular minority” for special treatment. The three-fifths requirement applies equally to all bond issues for any purpose, whether for schools, sewers, or highways. We are not, therefore, presented with a case like Hunter v. Erickson, 393 U. S. 385 (1969), in which fair housing legislation alone was subject to an automatic referendum requirement. The class singled out in Hunter was clear—“those who would benefit from laws barring racial, religious, or ancestral discriminations,” supra, at 391. In contrast we can discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing. Consequently no sector of the population may be said to be “fenced out” from the franchise because of the way they will vote. Cf. Carrington v. Rash, supra, at 94. Although West Virginia has not denied any group access to the ballot, it has indeed made it more difficult 6 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. for some kinds of governmental actions to be taken. Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue. On the contrary, while we have recognized that state officials are normally chosen by a vote of the majority of the electorate, we have found no constitutional barrier to the selection of a Governor by a state legislature, after no candidate received a majority of the popular vote. Fortson v. Morris, 385 U. S. 231 (1966). The Federal Constitution itself provides that a simple majority vote is insufficient on some issues; the provisions on impeachment and ratification of treaties are but two examples. Moreover, the Bill of Rights removes entire areas of legislation from the concept of majoritarian supremacy. The constitutions of many States prohibit or severely limit the power of the legislature to levy new taxes or to create or increase bonded indebtedness,2 thereby insulating entire areas from majority control. Whether these matters of finance and taxation are to be considered as less “important” than matters of treaties, foreign policy, or impeachment of public officers is more properly left to the determination by the States and the people than to the courts operating under the broad mandate of the Fourteenth Amendment. It must be remembered that in voting to issue bonds voters are committing, in part, the credit of infants and of generations yet unborn, and some restriction on such commitment is not an unreasonable demand. That the bond issue may have the desirable objective of providing better education for future generations goes to the wisdom of 2E. g., Indiana Constitution, Art. 10, §5; Ohio Constitution, Art. 8, § 3; Texas Constitution, Art. 3, § 49; Wisconsin Constitution, Art. 8, § 4. GORDON v. LANCE 7 1 Opinion of the Court an indebtedness limitation: it does not alter the basic fact that the balancing of interests is one for the State to resolve. Wisely or not, the people of the State of West Virginia have long since resolved to remove from a simple majority vote the choice on certain decisions as to what indebtedness may be incurred and what taxes their children will bear. We conclude that so long as such provisions do not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause.3 We see no meaningful distinction between such absolute provisions on debt, changeable only by constitutional amendment, and provisions that legislative decisions on the same issues require more than a majority vote in the legislature. On the contrary, these latter provisions may, in practice, be less burdensome than the amendment process.4 Moreover, the same considerations apply when the ultimate power, rather than being delegated to the legislature, remains with the people, by way of a referendum. Indeed, we see no constitutional distinction between the 60% requirement in the present case and a state requirement that a given issue be approved by a majority of all registered voters.5 Cf. Clay v. Thornton, 253 S. C. 209, 169 S. E. 3 Compare Reitman v. Mulkey, 387 U. S. 369 (1967). 4 Some 14 States require an amendment to be approved by two sessions of the legislature, before submission to the people. West Virginia’s Constitution, Art. 14, § 2, provides for approval by two-thirds of a single legislature and a majority of the voters. 5 In practice, the latter requirement would be far more burdensome than a 60% requirement. There were 8,913 registered voters in Roane County in 1968, of whom 5,600 voted in the referendum at issue. If a majority of all eligible voters had been required, approval would have required the affirmative votes of over 79% of those voting. See State of West Virginia, Official Returns of 1970 Primary Election (including the 1968 registration figures). 8 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. 2d 617 (1969), appeal dismissed sub nom. Turner v. Clay, 397 U. S. 39 (1970). That West Virginia has adopted a rule of decision, applicable to all bond referenda, by which the strong consensus of three-fifths is required before indebtedness is authorized, does not violate the Equal Protection Clause or any other provision of the Constitution.6 Reversed. Mr. Justice Harlan concurs in the result for the reasons stated in his separate opinion in Whitcomb v. Chavis, post, p. 165. Mr. Justice Brennan and Mr. Justice Marshall would affirm for the reasons expressed in the opinion of the West Virginia Supreme Court of Appeals, 153 W. Va. 559, 170 S. E. 2d 783 (1969). 6 We intimate no view on the constitutionality of a provision requiring unanimity or giving a veto power to a very small group. Nor do we decide whether a State may, consistently with the Constitution, require extraordinary majorities for the election of public officers. UTAH v. UNITED STATES 9 Opinion of the Court UTAH v. UNITED STATES ON BILL OF COMPLAINT No. 31, Orig. Argued April 26, 1971—Decided June 7, 1971 In this suit involving conflicting claims between Utah and the United States to the shorelands around the Great Salt Lake the Special Master’s report, finding that at the date of Utah’s admission to the Union the Lake was navigable and that the lake bed passed to Utah at that time, is supported by adequate evidence and is approved by the Court. The parties are invited to address themselves to the decree submitted with the report with a view to agreeing, if possible, upon the issues that have now been settled. Pp. 9-13. Douglas, J., delivered the opinion of the Court, in which all members joined except Marshall, J., who took no part in the consideration or decision of the case. D allin W. Jensen, Assistant Attorney General of Utah, argued for plaintiff in support of the Report of the Special Master. With him on the briefs were Vernon B. Romney, Attorney General, Robert B. Hansen, Deputy Attorney General, Paul E. Reimann, Assistant Attorney General, and Clifford L. Ashton and Edward W. Clyde, Special Assistant Attorneys General. Peter L. Strauss argued for the United States on exceptions to the Report of the Special Master. On the brief were Solicitor General Griswold, Assistant Attorney General Kashiwa, Louis F. Claiborne, and Martin Green. Mr. Justice Douglas delivered the opinion of the Court. This suit was initiated by Utah to resolve a dispute between it and the United States as to shorelands around the Great Salt Lake. Utah’s claim to the lands is premised on the navigability of the lake at the date of 10 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. statehood, viz., January 4, 1896. If indeed the lake were navigable at that time, the claim of Utah would override any claim of the United States, with the possible exception of a claim based on the doctrine of reliction, not now before us. The operation of the “equal footing” principle has accorded newly admitted States the same property interests in submerged lands as was enjoyed by the Thirteen Original States as successors to the British Crown. Pollard’s Lessee v. Hagan, 3 How. 212, 222-223, 228-230. That means that Utah’s claim to the original bed of the Great Salt Lake—whether now submerged or exposed—ultimately rests on whether the lake was navigable (Martin v. Waddell, 16 Pet. 367, 410, 416—417) at the time of Utah’s admission. Shively v. Bowlby, 152 U. S. 1, 26-28. It was to that issue that we directed the Special Master, Hon. J. Cullen Ganey, to address himself. See Utah v. United States, 394 U. S. 89. In the present report the Special Master found that at the time in question the Great Salt Lake was navigable. We approve that finding. The question of navigability is a federal question. The Daniel Ball, 10 Wall. 557, 563. Moreover, the fact that the Great Salt Lake is not part of a navigable interstate or international commercial highway in no way interferes with the principle of public ownership of its bed. United States v. Utah, 283 U. S. 64, 75; United States v. Oregon, 295 U. S. 1,14. The test of navigability of waters was stated in The Daniel Ball, supra, at 563: “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. . . .” UTAH v. UNITED STATES 11 Opinion of the Court While that statement was addressed to the navigability of “rivers” it applies to all water courses. United States v. Oregon, supra, at 14. The United States strongly contests the finding of the Special Master that the Great Salt Lake was navigable. Although the evidence is not extensive, we think it is sufficient to sustain the findings. There were, for example, nine boats used from time to time to haul cattle and sheep from the mainland to one of the islands or from one of the islands to the mainland. The hauling apparently was done by the owners of the livestock, not by a carrier for the purpose of making money. Hence it is suggested that this was not the use of the lake as a navigable highway in the customary sense of the word. That is to say, the business of the boats was ranching and not carrying water-borne freight. We think that is an irrelevant detail. The lake was used as a highway and that is the gist of the federal test. It is suggested that the carriage was also limited in the sense of serving only the few people who performed ranching operations along the shores of the lake. But that again does not detract from the basic finding that the lake served as a highway and it is that feature that distinguishes between navigability and non-navigability. There was, in addition to the boats used by ranchers, one boat used by an outsider who carried sheep to an island for the owners of the sheep. It is said that one sheep boat for hire does not make an artery for commerce; but one sheep boat for hire is in keeping with the theme of actual navigability of the waters of the lake in earlier years. There was, in addition, a boat known as the City of Corinne which was launched in May 1871 for the purpose of carrying passengers and freight; but its life in that capacity apparently lasted less than a year. In 1872 it 12 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. was converted into an excursion boat which apparently plied the waters of the lake until 1881. There are other boats that hauled sheep to and from an island in the lake and also hauled ore, and salt, and cedar posts. Still another boat was used to carry salt from various salt works around the lake to a railroad connection. The United States says the trade conducted by these various vessels was sporadic and their careers were short. It is true that most of the traffic which we have mentioned took place in the 1880’s, while Utah became a State in 1896. Moreover, it is said that the level of the lake had so changed by 1896 that navigation was not practical. The Master’s Report effectively refutes that contention. It says that on January 4, 1896, the lake was 30.2 feet deep. He finds that on that date “the Lake was physically capable of being used in its ordinary condition as a highway for floating and affording passage to water craft in the manner over which trade and travel was or might be conducted in the customary modes of travel on water at that time.” He found that the lake on January 4, 1896, “could have floated and afforded passage to large boats, barges and similar craft currently in general use on inland navigable bodies of water in the United States.” He found that the areas of the lake that had a depth sufficient for navigation “were several miles wide, extending substantially through the length and width of the Lake.” Most of the history of actual water transportation, to be sure, took place on the lake in the 1880’s, yet the findings of the Master are that the water conditions which obtained on January 4, 1896, still permitted navigation at that time. In sum, it is clear that Utah is entitled to the decree for which it asks. The Special Master has submitted with his report a proposed decree which we attach as an Appendix to this opinion. We invite the parties to UTAH v. UNITED STATES 13 9 Appendix to opinion of the Court address themselves to that decree with the view of agreeing, if possible, upon the issues which have now been settled by this litigation. So ordered. Mr. Justice Marshall took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT IT IS ORDERED, ADJUDGED AND DECREED THAT: 1. The United States of America, its departments and agencies, are enjoined, subject to any regulations which the Congress may impose in the interest of navigation or pollution control, from asserting against the State of Utah any claim of right, title and interest: (a) to the bed of the Great Salt Lake lying below the meander line of Great Salt Lake as duly surveyed heretofore or in accordance with Section 1 of the Act of June 3, 1966, 80 Stat. 192, with the exception of any lands within the Bear River Migratory Bird Refuge and the Weber Basin federal reclamation project, (b) to the natural resources and living organisms in or beneath the bed of the Great Salt Lake as delineated in (a) above, and (c) to the natural resources and living organisms either within the waters of the Great Salt Lake, or extracted therefrom, lying below the meander line of the Great Salt Lake, as delineated in (a) above, except brine and minerals in solution in the brine or precipitated or extracted therefrom in whatever federal lands there may be below said meander line, together with the right to prospect for, mine, and remove the same, as set forth in Section 3 of the Act of June 3, 1966, 80 Stat. 192. 427-293 0 - 72 -5 14 OCTOBER TERM, 1970 Appendix to opinion of the Court 403U.S. 2. The State of Utah is not required to pay the United States, through the Secretary of the Interior, for the lands, including any minerals, lying below the meander line of the Great Salt Lake, as delineated in 1 (a), above, of this decree. 3. The prayer of the United States of America in its Answer to the State of Utah’s Complaint that this Court “confirm, declare and establish that the United States is the owner of all right, title and interest in all the lands described in Section 2 of the Act of June 3, 1966, 80 Stat. 192, as amended by the Act of August 23, 1966, 80 Stat. 349, and that the State of Utah is without any right, title or interest in such lands, save for the right to have these lands conveyed to it by the United States, and to pay for them, in accordance with the provisions of the Act of June 3, 1966, as amended,” is denied. Respectfully submitted, J. Cullen Ganey, Senior Circuit Judge, Special Master. COHEN v. CALIFORNIA 15 Opinion of the Court COHEN v. CALIFORNIA APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT No. 299. Argued February 22, 1971—Decided June 7, 1971 Appellant was convicted of violating that part of Cal. Penal Code §415 which prohibits “maliciously and willfully disturb [ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct,” for wearing a jacket bearing the words “Fuck the Draft” in a corridor of the Los Angeles Courthouse. The Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and affirmed the conviction. Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 22-26. 1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed. Harlan, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, and Marshall, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Black, J., joined, and in which White, J., joined in part, post, p. 27. Melville B. Nimmer argued the cause for appellant. With him on the brief was Laurence R. Sperber. Michael T. Sauer argued the cause for appellee. With him on the brief was Roger Arnebergh. Anthony G. Amsterdam filed a brief for the American Civil Liberties Union of Northern California as amicus curiae urging reversal. Mr. Justice Harlan delivered the opinion of the Court. This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance. 16 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits “maliciously and willfully disturb [ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . 1 He was given 30 days’ imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows: “On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words Tuck the Draft’ which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft. “The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct 1 The statute provides in full: “Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court.” COHEN v. CALIFORNIA 17 15 Opinion of the Court in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.” 1 Cal. App. 3d 94, 97-98, 81 Cal. Rptr. 503, 505 (1969). In affirming the conviction the Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and that the State had proved this element because, on the facts of this case, “ [i] t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket.” 1 Cal. App. 3d, at 99-100, 81 Cal. Rptr., at 506. The California Supreme Court declined review by a divided vote.2 We brought the case here, postponing the consideration of the question of our jurisr-diction over this appeal to a hearing of the case on the merits. 399 U. S. 904. We now reverse. The question of our jurisdiction need not detain us long. Throughout the proceedings below, Cohen con 2 The suggestion has been made that, in light of the supervening opinion of the California Supreme Court in In re Bushman, 1 Cal. 3d 767, 463 P. 2d 727 (1970), it is “not at all certain that the California Court of Appeal’s construction of § 415 is now the authoritative California construction.” Post, at 27 (Blackmun, J., dissenting). In the course of the Bushman opinion, Chief Justice Traynor stated: “[One] may ... be guilty of disturbing the peace through 'offensive’ conduct [within the meaning of § 415] if by his actions he wilfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal. App. 3d 94, 101, [81 Cal. Rptr. 503].)” 1 Cal. 3d, at 773, 463 P. 2d, at 730. We perceive no difference of substance between the Bushman construction and that of the Court of Appeal, particularly in light of the Bushman court’s approving citation of Cohen. 18 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. sistently claimed that, as construed to apply to the facts of this case, the statute infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution. That contention has been rejected by the highest California state court in which review could be had. Accordingly, we are fully satisfied that Cohen has properly invoked our jurisdiction by this appeal. 28 U. S. C. § 1257 (2); Dahnke-Wdlker Milling Co. v. Bondurant, 257 U. S. 282 (1921). I In order to lay hands on the precise issue which this case involves, it is useful first to canvass various matters which this record does not present. The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only “conduct” which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon “speech,” cf. Stromberg v. California, 283 U. S. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message and hence arguably could be regulated without effectively repressing Cohen’s ability to express himself. Cf. United States v. O'Brien, 391 U. S. 367 (1968). Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Yates v. United States, 354 U. S. 298 (1957). COHEN v. CALIFORNIA 19 15 Opinion of the Court Appellant’s conviction, then, rests squarely upon his exercise of the “freedom of speech” protected from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here. In the first place, Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. See Edwards v. South Carolina, 372 U. S. 229, 236-237, and n. 11 (1963). Cf. Adderley v. Florida, 385 U. S. 39 (1966). No fair reading of the phrase “offensive conduct” can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.3 In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of 3 It is illuminating to note what transpired when Cohen entered a courtroom in the building. He removed his jacket and stood with it folded over his arm. Meanwhile, a policeman sent the presiding judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so and Cohen was arrested by the officer only after he emerged from the courtroom. App. 18-19. 20 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States, 354 U. S. 476 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket. This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called “fighting words,” those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not “directed to the person of the hearer.” Cantwell v. Connecticut, 310 U. S. 296, 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U. S. 315 (1951); Terminiello v. Chicago, 337 U. S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was in fact violently aroused or that appellant intended such a result. COHEN v. CALIFORNIA 21 15 Opinion of the Court Finally, in arguments before this Court much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e. g., Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e. g., Rowan v. Post Office Dept., 397 U. S. 728 (1970), we have at the same time consistently stressed that “we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech.” Id., at 738. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections. In this regard, persons confronted with Cohen’s jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in 22 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. being free from unwanted expression in the confines of one’s own home. Cf. Keefe, supra. Given the subtlety and complexity of the factors involved, if Cohen’s “speech” was otherwise entitled to constitutional protection, we do not think the fact that some unwilling “listeners” in a public building may have been briefly exposed to it can serve to justify this breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid appellant’s conduct did in fact object to it, and where that portion of the statute upon which Cohen’s conviction rests evinces no concern, either on its face or as construed by the California courts, with the special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions all “offensive conduct” that disturbs “any neighborhood or person.” Cf. Edwards v. South Carolina, supra.4 II Against this background, the issue flushed by this case stands out in bold relief. It is whether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, 4 In fact, other portions of the same statute do make some such distinctions. For example, the statute also prohibits disturbing “the peace or quiet ... by loud or unusual noise” and using “vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner.” See n. 1, supra. This second-quoted provision in particular serves to put the actor on much fairer notice as to what is prohibited. It also buttresses our view that the “offensive conduct” portion, as construed and applied in this case, cannot legitimately be justified in this Court as designed or intended to make fine distinctions between differently situated recipients. COHEN v. CALIFORNIA 23 15 Opinion of the Court may properly remove this offensive word from the public vocabulary. The rationale of the California court is plainly untenable. At most it reflects an “undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines Indep. Community School Dist., 393 U. S. 503, 508 (1969). We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. The argument amounts to little more than the self-defeating proposition that to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves. Cf. Ashton v. Kentucky, 384 U. S. 195, 200 (1966); Cox v. Louisiana, 379 U. S. 536, 550-551 (1965). Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic.5 We 5 The amicus urges, with some force, that this issue is not properly before us since the statute, as construed, punishes only conduct that might cause others to react violently. However, because the opinion below appears to erect a virtually irrebuttable presumption that use of this word will produce such results, the statute as thus construed appears to impose, in effect, a flat ban on the public utterance of this word. With the case in this posture, it does not seem inappro 24 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint. At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions, discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe the form or content of individual expression. Equally important to our conclusion is the constitutional backdrop against which our decision must be made. The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U. S. 357, 375-377 (1927) (Brandeis, J., concurring). To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and priate to inquire whether any other rationale might properly support this result. While we think it clear, for the reasons expressed above, that no statute which merely proscribes “offensive conduct” and has been construed as broadly as this one was below can subsequently be justified in this Court as discriminating between conduct that occurs in different places or that offends only certain persons, it is not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Because it is not so patently clear that acceptance of the justification presently under consideration would render the statute overbroad or unconstitutionally vague, and because the answer to appellee’s argument seems quite clear, we do not pass on the contention that this claim is not presented on this record. COHEN v. CALIFORNIA 25 15 Opinion of the Court even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why “[w] holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,” Winters v. New York, 333 U. S. 507, 528 (1948) (Frankfurter, J., dissenting), and why “so long as the means are peaceful, the communication need not meet standards of acceptability,” Organization for a Better Austin n. Keefe, 402 U. S. 415, 419 (1971). Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Additionally, we cannot overlook the fact, because it 26 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U. S. 665, 673-674 (1944). Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results. It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed. COHEN v. CALIFORNIA 27 15 Blackmun, J., dissenting Mr. Justice Blackmun, with whom The Chief Justice and Mr. Justice Black join. I dissent, and I do so for two reasons: 1. Cohen’s absurd and immature antic, in my view, wras mainly conduct and little speech. See Street v. New York, 394 U. S. 576 (1969); Cox v. Louisiana, 379 U. S. 536, 555 (1965); Giboney v. Empire Storage Co., 336 U. S. 490, 502 (1949). The California Court of Appeal appears so to have described it, 1 Cal. App. 3d 94, 100, 81 Cal. Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court’s agonizing over First Amendment values seems misplaced and unnecessary. 2. I am not at all certain that the California Court of Appeal’s construction of § 415 is now the authoritative California construction. The Court of Appeal filed its opinion on October 22, 1969. The Supreme Court of California declined review by a four-to-three vote on December 17. See 1 Cal. App. 3d, at 104. A month later, on January 27, 1970, the State Supreme Court in another case construed § 415, evidently for the first time. In re Bushman, 1 Cal. 3d 767, 463 P. 2d 727. Chief Justice Traynor, who was among the dissenters to his court’s refusal to take Cohen’s case, wrote the majority opinion. He held that § 415 “is not unconstitutionally vague and overbroad” and further said: “[T]hat part of Penal Code section 415 in question here makes punishable only wilful and malicious conduct that is violent and endangers public safety and order or that creates a clear and present danger that others will engage in violence of that nature. 28 OCTOBER TERM, 1970 Blackmun, J., dissenting 403U.S. . [It] does not make criminal any nonviolent act unless the act incites or threatens to incite others to violence . . . .” 1 Cal. 3d, at 773-774, 463 P. 2d, at 731. Cohen was cited in Bushman, 1 Cal. 3d, at 773, 463 P. 2d, at 730, but I am not convinced that its description there and Cohen itself are completely consistent with the “clear and present danger” standard enunciated in Bushman. Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered decision by the State’s highest tribunal in Bushman. Mr. Justice White concurs in Paragraph 2 of Mr. Justice Blackmun’s dissenting opinion. ROSENBLOOM v. METROMEDIA 29 Syllabus ROSENBLOOM v. METROMEDIA, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 66. Argued December 7-8, 1970—Decided June 7, 1971 Respondent’s radio station, which broadcast news reports every half hour, broadcast news stories of petitioner’s arrest for possession of obscene literature and the police seizure of “obscene books,” and stories concerning petitioner’s lawsuit against certain officials alleging that the magazines he distributed were not obscene and seeking injunctive relief from police interference with his business. These latter stories did not mention petitioner’s name, but used the terms “smut literature racket” and “girlie-book peddlers.” Following petitioner’s acquittal of criminal obscenity charges, he filed this diversity action in District Court seeking damages under Pennsylvania’s libel law. The jury found for petitioner and awarded $25,000 in general damages; and $725,000 in punitive damages, which was reduced by the court on remittitur to $250,000. The Court of Appeals reversed, holding that the New York Times Co. v. Sullivan, 376 IT. S. 254, standard applied, and “the fact that plaintiff was not a public figure cannot be accorded decisive significance.” Held: The judgment is affirmed. Pp. 40-62. 415 F. 2d 892, affirmed. Mr. Justice Brennan, joined by The Chief Justice and Mr. Justice Blackmun, concluded that the New York Times standard of knowing or reckless falsity applies in a state civil libel action brought by a private individual for a defamatory falsehood uttered in a radio news broadcast about the individual’s involvement in an event of public or general interest. Pp. 40-57. Mr. Justice Black concluded that the First Amendment protects the news media from libel judgments even when statements are made with knowledge that they are false. P. 57. Mr. Justice White concluded that, in the absence of actual malice as defined in New York Times, supra, the First Amendment gives the news media a privilege to report and comment upon the official actions of public servants in full detail, without sparing from public view the reputation or privacy of an individual involved in or affected by any official action. Pp. 59-62. 427-293 0 - 72 -6 30 OCTOBER TERM, 1970 Opinion of Brennan, J. 403U.S. Brennan, J., announced the Court’s judgment and delivered an opinion in which Burger, C. J., and Blackmun, J., joined. Black, J., post, p. 57, and White, J., post, p. 57, filed opinions concurring in the judgment. Harlan, J., filed a dissenting opinion, post, p. 62. Marshall, J., filed a dissenting opinion in which Stewart, J., joined, post, p. 78. Douglas, J., took no part in the consideration or decision of this case. Ramsey Clark argued the cause for petitioner. With him on the brief was Benjamin Paul. Bernard G. Segal argued the cause for respondent. With him on the brief were Irving R. Segal, Samuel D. Slade, and Carleton G. Eldridge, Jr. Mr. Justice Brennan announced the judgment of the Court and an opinion in which The Chief Justice and Mr. Justice Blackmun join. In a series of cases beginning with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court has considered the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press. New York Times held that in a civil libel action by a public official against a newspaper those guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with “knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280. The same requirement was later held to apply to “public figures” who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of “public officials” or “public figures,” usually, but not always, against newspapers or magazines.1 Common to all the cases was a 1See, e. g., Associated Press v. Walker, 388 U. S. 130 (1967) (retired Army general against a wire service); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967) (former football coach against pub- ROSENBLOOM v. METROMEDIA 31 29 Opinion of Brennan, J. defamatory falsehood in the report of an event of “public or general interest.”2 The instant case presents the question whether the New York Times’ knowing-or-reck-less-falsity standard applies in a state civil libel action brought not by a “public official” or a “public figure” but by a private individual for a defamatory falsehood uttered in a news broadcast by a radio station about the individual’s involvement in an event of public or general lisher of magazine); Beckley Newspapers Corp. v. Hanks, 389 U. S. 81 (1967) (court clerk against newspaper); Greenbelt Publishing Assn. v. Bresler, 398 U. S. 6 (1970) (state representative and real estate developer against publisher of newspaper); Ocala Star-Banner Co. v. Damron, 401 U. S. 295 (1971) (defeated candidate for tax assessor against publisher of newspaper); Monitor Patriot Co. v. Roy, 401 U. S. 265 (1971) (candidate for United States Senate against publisher of newspaper); Time, Inc. v. Pape, 401 U. S. 279 (1971) (police official against publisher of magazine). However, Rosenblatt n. Baer, 383 U. S. 75 (1966), involved an action against a newspaper columnist by a former county recreation area supervisor; St. Amant v. Thompson, 390 U. S. 727 (1968), involved an action of a deputy sheriff against a defeated candidate for the United States Senate; and Linn v. Plant Guard Workers, 383 U. S. 53 (1966), involved an action by an official of an employer against a labor union. Garrison v. Louisiana, 379 U. S. 64 (1964), held that the New York Times standard measured also the constitutional restriction upon state power to impose criminal sanctions for criticism of the-official conduct of public officials. The Times standard of proof has also been required to support the dismissal of a public school teacher based on false statements made by the teacher in discussing issues of public importance. Pickering v. Board of Education, 391 U. S. 563 (1968). The same test was applied to suits for invasion of privacy based on false statements where, again, a matter of public interest was involved. Time, Inc. v. Hill, 385 U. S. 374 (1967). The opinion in that case expressly reserved the question presented here whether the test applied in a libel action brought by a private individual. Id., at 391. 2 This term is from Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890). Our discussion of matters of “public or general interest” appears in Part IV, infra, of this opinion. 32 OCTOBER TERM, 1970 Opinion of Brennan, J. 403U.S. interest.3 The District Court for the Eastern District of Pennsylvania held that the New York Times standard did not apply and that Pennsylvania law determined respondent’s liability in this diversity case, 289 F. Supp. 737 (1968). The Court of Appeals for the Third Circuit held that the New York Times standard did apply and reversed the judgment for damages awarded to petitioner by the jury. 415 F. 2d 892 (1969). We granted certiorari, 397 U. S. 904 (1970). We agree with the Court of Appeals and affirm that court’s judgment. I In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. During the fall of that year, in response to citizen complaints, the Special Investigations Squad of the Philadelphia Police Department initiated a series of enforcement actions under the city’s obscenity laws. The police, under the command of Captain Ferguson, purchased various magazines from more than 20 newsstands throughout the city. Based upon Captain Ferguson’s determination that the magazines were obscene,4 police on October 1, 1963, arrested most of the newsstand operators5 on charges of selling obscene material. While the police were making an arrest at one newsstand, petitioner arrived to deliver some of his nudist magazines and was immediately ar- 3 Petitioner does not question that the First Amendment guarantees of freedom of speech and freedom of the press apply to respondent’s newscasts. 4 At trial, Captain Ferguson testified that his definition of obscenity was “anytime the private parts is showing of the female or the private parts is shown of males.” 8 Several more newsstand operators were arrested between October 1 and October 4. ROSENBLOOM v. METROMEDIA 33 29 Opinion of Brennan, J. rested along with the newsboy.6 Three days later, on October 4, the police obtained a warrant to search petitioner’s home and the rented barn he used as a warehouse, and seized the inventory of magazines and books found at these locations. Upon learning of the seizures, petitioner, who had been released on bail after his first arrest, surrendered to the police and was arrested for a second time. Following the second arrest, Captain Ferguson telephoned respondent’s radio station WIP and another local radio station, a wire service, and a local newspaper to inform them of the raid on petitioner’s home and of his arrest. WIP broadcast news reports every half hour to the Philadelphia metropolitan area. These news programs ran either five or ten minutes and generally contained from six to twenty different items that averaged about thirty seconds each. WIP’s 6 p. m. broadcast on October 4, 1963, included the following item: “City Cracks Down on Smut Merchants “The Special Investigations Squad raided the home of George Rosenbloom in the 1800 block of Vesta Street this afternoon. Police confiscated 1,000 allegedly obscene books at Rosenbloom’s home and arrested him on charges of possession of obscene literature. The Special Investigations Squad also raided a barn in the 20 Hundred block of Welsh Road near Bustleton Avenue and confiscated 3,000 obscene books. Capt. Ferguson says he believes they have hit the supply of a main distributor of obscene material in Philadelphia.” 6 The record neither confirms nor refutes petitioner’s contention that his arrest was fortuitous. Nor does the record reflect whether or not petitioner’s magazines were the subject either of the original citizens’ complaints or of the initial police purchases. 34 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. This report was rebroadcast in substantially the same form at 6:30 p. m., but at 8 p. m. when the item was broadcast for the third time, WIP corrected the third sentence to read “reportedly obscene.” News of petitioner’s arrest was broadcast five more times in the following twelve hours, but each report described the seized books as “allegedly” or “reportedly” obscene. From October 5 to October 21, WIP broadcast no further reports relating to petitioner. On October 16 petitioner brought an action in Federal District Court against various city and police officials and against several local news media.7 The suit alleged that the magazines petitioner distributed were not obscene and sought injunctive relief prohibiting further police interference with his business as well as further publicity of the earlier arrests. The second series of allegedly defamatory broadcasts related to WIP’s news reports of the lawsuit. There were ten broadcasts on October 21, two on October 25, and one on November 1. None mentioned petitioner by name. The first at 6:30 a. m. on October 21 was pretty much like those that followed: “Federal District Judge Lord, will hear arguments today from two publishers and a distributor all seeking an injunction against Philadelphia Police Commissioner Howard Leary . . . District Attorney James C. Crumlish ... a local television station and a newspaper . . . ordering them to lay off the smut literature racket. “The girlie-book peddlers say the police crack- 7 The complaint named as defendants the publishers of two newspapers, a television station, the city of Philadelphia, and the district attorney, but not respondent WIP. The plaintiffs were petitioner, the partnership pf himself and his wife which carried on the business, and the publisher of the nudist magazines that he distributed. ROSENBLOOM v. METROMEDIA 35 29 Opinion of Brennan, J. down and continued reference to their borderline literature as smut or filth is hurting their business. Judge Lord refused to issue a temporary injunction when he was first approached. Today he’ll decide the issue. It will set a precedent . . . and if the injunction is not granted ... it could signal an even more intense effort to rid the city of pornography.” On October 27, petitioner went to WIP’s studios after hearing from a friend that the station had broadcast news about his lawsuit. Using a lobby telephone to talk with a part-time newscaster, petitioner inquired what stories WTP had broadcast about him. The newscaster asked him to be more specific about dates and times. Petitioner then asked for the noon news broadcast on October 21, 1963, which the newscaster read to him over the phone; it was similar to the above 6:30 a. m. broadcast. According to petitioner, the ensuing interchange was brief. Petitioner told the newscaster that his magazines were “found to be completely legal and legitimate by the United States Supreme Court.” When the newscaster replied the district attorney had said the magazines were obscene, petitioner countered that he had a public statement of the district attorney declaring the magazines legal. At that point, petitioner testified, “the telephone conversation was terminated . . . He just hung up.” Petitioner apparently made no request for a retraction or correction, and none was forthcoming. WIP’s final report on petitioner’s lawsuit—the only one after petitioner’s unsatisfactory conversation at the station—occurred on November 1 after the station had checked the story with the judge involved.8 8 The text of the final broadcast read as follows: “U, S. District Judge John Lord told WIP News just before airtime that it may be another week before he will be able to render a 36 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. II In May 1964 a jury acquitted petitioner in state court of the criminal obscenity charges under instructions of the trial judge that, as a matter of law, the nudist magazines distributed by petitioner were not obscene. Following his acquittal, petitioner filed this diversity action in District Court seeking damages under Pennsylvania’s libel law. Petitioner alleged that WIP’s unqualified characterization of the books seized as “obscene” in the 6 and 6:30 p. m. broadcasts of October 4, describing his arrest, constituted libel per se and was proved false by petitioner’s subsequent acquittal. In addition, he alleged that the broadcasts in the second series describing his court suit for injunctive relief were also false and defamatory in that WIP characterized petitioner and his business associates as “smut distributors” and “girlie-book peddlers” and, further, falsely characterized the suit as an attempt to force the defendants “to lay off the smut literature racket.” At the trial WIP’s defenses were truth and privilege. WIP’s news director testified that his eight-man staff of reporters prepared their own newscasts and broadcast their material themselves, and that material for the news programs usually came either from the wire services or from telephone tips. None of the writers or broadcasters involved in preparing the broadcasts in this case testified. The news director’s recollection was that the primary source of information for the first series of broadcasts decision as to whether he has jurisdiction in the case of two publishers and a distributor who wish to restrain the D. A.’s office, the police chief, a TV station and the Bulletin for either making alleged raids of their publications, considered smut and immoral literature by the defendants named, or publicizing that they are in that category. Judge Lord then will be in a position to rule on injunction proceedings asked by the publishers and distributor claiming the loss of business in their operations.” ROSENBLOOM v. METROMEDIA 37 29 Opinion of Brennan, J. about petitioner’s arrest was Captain Ferguson, but that, to the director’s knowledge, the station did not have any further verification. Captain Ferguson testified that he had informed WIP and other media of the police action and that WIP had accurately broadcast what he told the station. The evidence regarding WIP’s investigation of petitioner’s lawsuit in the second series of broadcasts was even more sparse. The news director testified that he was “sure we would check with the District Attorney’s office also and with the Police Department,” but “it would be difficult for me to specifically state what additional corroboration we had.” In general, he testified that WIP’s half-hour deadlines required it to rely on wire-service copy and oral reports from previously reliable sources subject to the general policy that “we will contact as many sources as we possibly can on any kind of a story.” Ill Pennsylvania’s libel law tracks almost precisely the Restatement (First) of Torts provisions on the subject. Pennsylvania holds actionable any unprivileged “malicious” 9 publication of matter which tends to harm a person’s reputation and expose him to public hatred, contempt, or ridicule. Schnabel v. Meredith, 378 Pa. 609, 107 A. 2d 860 (1954); Restatement of Torts §§ 558, 559 (1938). Pennsylvania law recognizes truth as a complete defense to a libel action. Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A. 2d 504, 507 (1969); Restatement of Torts § 582. It recognizes an absolute immunity for defamatory statements made by high state officials, even if published with an improper motive, actual malice, or knowing falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A. 2d 100 (1958); Restatement of Torts § 591, 9 The reference here, of course, is to common-law “malice,” not to the constitutional standard of New York Times Co. n. Sullivan, supra. See n. 18, infra. 38 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. and it recognizes a conditional privilege for news media to report judicial, administrative, or legislative proceedings if the account is fair and accurate, and not published solely for the purpose of causing harm to the person defamed, even though the official information is false or inaccurate. Sciandra n. Lynett, 409 Pa. 595, 600-601, 187 A. 2d 586, 588-589 (1963); Restatement of Torts § 611. The conditional privilege of the news media may be defeated, however, by “ ‘want of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication.’ The failure to employ such ‘reasonable care and diligence’ can destroy a privilege which otherwise would protect the utterer of the communication.” Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A. 2d 662, 668 (1963). Pennsylvania has also enacted verbatim the Restatement’s provisions on burden of proof, which place the burden of proof for the affirmative defenses of truth and privilege upon the defendant.10 10 Pa. Stat. Ann., Tit. 12, § 1584a (Supp. 1971) provides: “(1) In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised: “(a) The defamatory character of the communication; “(b) Its publication by the defendant; “(c) Its application to the plaintiff; “(d) The recipient’s understanding of its defamatory meaning; “(e) The recipient’s understanding of it as intended to be applied to the plaintiff; “(f) Special harm resulting to the plaintiff from its publication; “(g) Abuse of a conditionally privileged occasion. “(2) In an action for defamation, the defendant has the burden of proving, when the issue is properly raised: “(a) The truth of the defamatory communication; “(b) The privileged character of the occasion on which it was published; “(c) The character of the subject matter of defamatory comment as of public concern.” See Restatement of Torts § 613. ROSENBLOOM v. METROMEDIA 39 29 Opinion of Brennan, J. At the close of the evidence, the District Court denied respondent’s motion for a directed verdict and charged the jury, in conformity with Pennsylvania law, that four findings were necessary to return a verdict for petitioner: (1) that one or more of the broadcasts were defamatory; (2) that a reasonable listener would conclude that the defamatory statement referred to petitioner; (3) that WIP had forfeited its privilege to report official proceedings fairly and accurately, either because it intended to injure the plaintiff personally or because it exercised the privilege unreasonably and without reasonable care; and (4) that the reporting was false. The jury was instructed that petitioner had the burden of proof on the first three issues, but that respondent had the burden of proving that the reporting was true. The jury was further instructed that “as a matter of law” petitioner was not entitled to actual damages claimed for loss of business “not because it wouldn’t ordinarily be but because there has been evidence that this same subject matter was the subject” of broadcasts over other television and radio stations and of newspaper reports, “so if there was any business lost ... we have no proof . . . that [it] resulted directly from the broadcasts by WIP . . . .” App. 331a. On the question of punitive damages, the judge gave the following instruction: “[I]f you find that this publication arose from a bad motive or malice toward the plaintiff, or if you find that it was published with reckless indifference to the truth, if you find that it was not true, you would be entitled to award punitive damages, and punitive damages are awarded as a deterrent from future conduct of the same sort. “They really are awarded only for outrageous conduct, as I have said, with a bad motive or with reckless disregard of the interests of others, and before 40 OCTOBER TERM, 1970 Opinion of Brennan, J. 403U.S. you would award punitive damages you must find that these broadcasts were published with a bad motive or with reckless disregard of the rights of others, or reckless indifference to the rights of others . . . .” The jury returned a verdict for petitioner and awarded $25,000 in general damages, and $725,000 in punitive damages. The District Court reduced the punitive damages award to $250,000 on remittitur, but denied respondent’s motion for judgment n. o. v. In reversing, the Court of Appeals emphasized that the broadcasts concerned matters of public interest and that they involved “hot news” prepared under deadline pressure. The Court of Appeals concluded that “the fact that plaintiff was not a public figure cannot be accorded decisive importance if the recognized important guarantees of the First Amendment are to be adequately implemented.” 415 F. 2d, at 896. For that reason, the court held that the New York Times standard applied and, further, directed that judgment be entered for respondent, holding that, as a matter of law, petitioner’s evidence did not meet that standard. IV Petitioner concedes that the police campaign to enforce the obscenity laws was an issue of public interest, and, therefore, that the constitutional guarantees for freedom of speech and press imposed limits upon Pennsylvania’s power to apply its libel laws to compel respondent to compensate him in damages for the alleged defamatory falsehoods broadcast about his involvement. As noted, the narrow question he raises is whether, because he is not a “public official” or a “public figure” but a private individual, those limits required that he prove that the falsehoods resulted from a failure of respondent to exercise reasonable care, or required that he prove that ROSENBLOOM v. METROMEDIA 41 29 Opinion of Brennan, J. the falsehoods were broadcast with knowledge of their falsity or with reckless disregard of whether they were false or not. That question must be answered against the background of the functions of the constitutional guarantees for freedom of expression. Rosenblatt v. Baer, 383 U. S. 75, at 84k85, n. 10 (1966). Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to live and work together in a free society not completely dominated by governmental regulation necessarily encompass far more than politics in a narrow sense. “The guarantees for speech and press are not the preserve of political expression or comment upon public affairs.” Time, Inc. v. Hill, 385 U. S. 374, 388 (1967). “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 102 (1940). Although the limitations upon civil libel actions, first held in New York Times to be required by the First Amendment, were applied in that case in the context of defamatory falsehoods about the official conduct of a public official, later decisions have disclosed the artificiality, in terms of the public’s interest, of a simple distinction between “public” and “private” individuals or institutions: “Increasingly in this country, the distinctions between governmental and private sectors are blurred. ... In many situations, policy determina 42 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. tions which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions .... “. . . Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of ‘public officials.’ ” Curtis Publishing Co. v. Butts, 388 U. S. 130, 163-164 (1967) (Warren, C. J., concurring in result). Moreover, the constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government. “[T]he Founders . . . felt that a free press would advance ‘truth, science, morality, and arts in general’ as well as responsible government.” Id., at 147 (opinion of Harlan, J.). Comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of public interest. In Time, Inc. v. Hill, supra, we had “no doubt that the ... opening of a new play linked to an actual incident, is a matter of public interest,” 385 U. S., at 388, which was entitled to constitutional protection. Butts held that an alleged “fix” of a college football game was a public issue. Associated Press v. Walker, 388 U. S. 130 (1967), a companion case to Butts, established that the public had a similar interest in the events and personalities involved in federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University of Mississippi. Thus, these cases underscore the vitality, as ROSENBLOOM v. METROMEDIA 43 29 Opinion of Brennan, J. well as the scope, of the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S., at 270-271 (emphasis added). If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not “voluntarily” choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety.11 The present case illustrates the point. The community has a vital interest in the proper enforcement of its criminal laws, particularly in an area such as obscenity where a number of highly important values are potentially in conflict: the public has an interest both in seeing that the criminal law is adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. Whether the person involved is a famous large-scale magazine distributor or a “private” businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amend 11 For example, the public’s interest in the provocative speech that was made during the tense episode on the campus of the University of Mississippi would certainly have been the same in Associated Press v. Walker, n. 1, supra, if the speaker had been an anonymous student and not a well-known retired Army general. Walker also illustrates another anomaly of focusing analysis on the public “figure” or public “official” status of the individual involved. General Walker’s fame stemmed from events completely unconnected with the episode in Mississippi. It seems particularly unsatisfactory to determine the extent of First Amendment protection on the basis of factors completely unrelated to the newsworthy events being reported. See also Greenbelt Publishing Assn. n. Bresler, 398 U. S. 6 (1970). 44 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. ment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.12 Our Brother White agrees that the protection afforded by the First Amendment depends upon whether the issue involved in the publication is an issue of public or general concern. He would, however, confine our holding to the situation raised by the facts in this case, that is, limit it to issues involving “official actions of public servants.” In our view that might be misleading. It is clear that there has emerged from our cases decided since New York Times the concept that the First Amendment’s impact upon state libel laws derives not so much from whether the plaintiff is a “public official,” “public figure,” or “private individual,” as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest. See T. Emerson, The System of Freedom of Expression 531-532, 540 ( 1970). In that circumstance we think the time has come forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern, albeit leaving the 12 We are not to be understood as implying that no area of a person’s activities falls outside the area of public or general interest. We expressly leave open the question of what constitutional standard of proof, if any, controls the enforcement of state libel laws for defamatory falsehoods published or broadcast by news media about a person’s activities not within the area of public or general interest. We also intimate no view on the extent of constitutional protection, if any, for purely commercial communications made in the course of business. See Valentine v. Chrestensen, 316 U. S. 52 (1942). Compare Breard n. Alexandria, 341 U. S. 622 (1951), with Martin v. Struthers, 319 U. S. 141 (1943). But see New York Times Co. v. Sullivan, 376 U. S., at 265-266; Linn v. Plant Guard Workers, 383 U. S. 53 (1966). ROSENBLOOM v. METROMEDIA 45 29 Opinion of Brennan, J. delineation of the reach of that term to future cases. As our Brother White observes, that is not a problem in this case, since police arrest of a person for distributing allegedly obscene magazines clearly constitutes an issue of public or general interest.13 V We turn then to the question to be decided. Petitioner’s argument that the Constitution should be held to require that the private individual prove only that the publisher failed to exercise “reasonable care” in publishing defamatory falsehoods proceeds along two lines. First, he argues that the private individual, unlike the public figure, does not have access to the media to counter the defamatory material and that the private individual, unlike the public figure, has not assumed the risk of defamation by thrusting himself into the public arena. Second, petitioner focuses on the important values served by the law of defamation in preventing and redressing attacks upon reputation. We have recognized the force of petitioner’s arguments, Time, Inc. v. Hill, supra, at 391, and we adhere to the caution expressed in that case against “blind application” of the New York Times standard. Id., at 390. Analysis of the particular factors involved, however, convinces us that petitioner’s arguments cannot be reconciled with the purposes of the First Amendment, with our cases, and with the traditional doctrines of libel law itself. Drawing a distinction between “public” 13 Our Brother White states in his opinion: “[T]he First Amendment gives ... a privilege to report . . . the official actions of public servants in full detail, with no requirement that . . . the privacy of an individual involved in . . . the official action be spared from public view.” Post, at 62. This seems very broad. It implies a privilege to report, for example, such confidential records as those of juvenile court proceedings. 427-293 0 - 72 -7 46 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. and “private” figures makes no sense in terms of the First Amendment guarantees.14 The New York Times standard was applied to libel of a public official or public figure to give effect to the Amendment’s function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not “hot” news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye, see Rosenblatt v. Baer, supra, the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media’s continuing interest in the story. Thus the unproved, and highly improbable, generalization that an as yet undefined class of “public figures” involved in matters of public concern will be better able to respond 14 See United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 404 F. 2d 706 (CA9 1968), cert, denied, 394 U. S. 921 (1969); Time, Inc. v. McLaney, 406 F. 2d 565 (CA5), cert, denied, 395 U. S. 922 (1969); Bon Air Hotel, Inc. v. Time, Inc., 426 F. 2d 858, 861 n. 4, and cases cited therein (CA5 1970). See generally Cohen, A New Niche for the Fault Principle: A Forthcoming Newsworthiness Privilege in Libel Cases?, 18 U. C. L. A. L. Rev. 371 (1970); Kalven, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup. Ct. Rev. 267; Note, Public Official and Actual Malice Standards: The Evolution of New York Times Co. n. Sullivan, 56 Iowa L. Rev. 393, 398-400 (1970); Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L. J. 642 (1966). ROSENBLOOM v. METROMEDIA 47 29 Opinion of Brennan, J. through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction. Furthermore, in First Amendment terms, the cure seems far worse than the disease. If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the direction of ensuring their ability to respond, rather than in stifling public discussion of matters of public concern.15 Further reflection over the years since New York Tinies was decided persuades us that the view of the “public official” or “public figure” as assuming the risk of defamation by voluntarily thrusting himself into the public eye bears little relationship either to the values protected by the First Amendment or to the nature of our society. We have recognized that “[e]xposure of the self to others in varying degrees is a concomitant of life in a civilized community.” Time, Inc. v. Hill, 15 Some States have adopted retraction statutes or right-of-reply statutes. See Donnelly, The Right of Reply: An Alternative to an Action for Libel, 34 Ya. L. Rev. 867 (1948); Note, Vindication of the Reputation of a Public Official, 80 Harv. L. Rev. 1730 (1967). Cf. Red Lion Broadcasting Co. n. FCC, 395 U. S. 367 (1969). One writer, in arguing that the First Amendment itself should be read to guarantee a right of access to the media not limited to a right to respond to defamatory falsehoods, has suggested several ways the law might encourage public discussion. Barron, Access to the Press—A New First Amendment Right, 80 Harv. L. Rev. 1641, 1666-1678 (1967). It is important to recognize that the private individual often desires press exposure either for himself, his ideas, or his causes. Constitutional adjudication must take into account the individual’s interest in access to the press as well as the individual’s interest in preserving his reputation, even though libel actions by their nature encourage a narrow view of the individual’s interest since they focus only on situations where the individual has been harmed by undesired press attention. A constitutional rule that deters the press from covering the ideas or activities of the private individual thus conceives the individual’s interest too narrowly. 48 OCTOBER TERM, 1970 Opinion of Brennan, J. 403U.S. supra, at 388. Voluntarily or not, we are all “public” men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See n. 12, supra; Griswold v. Connecticut, 381 U. S. 479 (1965).16 Thus, the idea that certain “public” figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of “public figures” that are not in the area of public or general concern. General references to the values protected by the law of libel conceal important distinctions. Traditional arguments suggest that libel law protects two separate interests of the individual: first, his desire to preserve a certain privacy around his personality from unwarranted intrusion, and, second, a desire to preserve his public good name and reputation. See Rosenblatt n. Baer, 383 U. S., at 92 (Stewart, J., concurring). The individual’s interest in privacy—in preventing unwarranted intrusion upon the private aspects of his life— is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern.17 In 16 This is not the less true because the area of public concern in the cases of candidates for public office and of elected public officials is broad. See Monitor Patriot Co. v. Roy, 401 U. S. 265 (1971). 17 Our Brothers Harlan and Marshall would not limit the application of the First Amendment to private libels involving issues of general or public interest. They would hold that the Amendment covers all private libels at least where state law permits the defense ROSENBLOOM v. METROMEDIA 49 29 Opinion of Brennan, J. the present case, however, petitioner’s business reputation is involved, and thus the relevant interests protected by state libel law are petitioner’s public reputation and good name. These are important interests. Consonant with the libel laws of most of the States, however, Pennsylvania’s libel law subordinates these interests of the individual in a number of circumstances. Thus, high government officials are immune from liability—absolutely privileged—even if they publish defamatory material from an improper motive, with actual malice, and with knowledge of its falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A. 2d 100 (1958). This absolute privilege attaches to judges, attorneys at law in connection with a judicial proceeding, parties and witnesses to judicial proceedings, Congressmen and state legislators, and high national and state executive officials. Restatement of Torts §§ 585-592. Moreover, a conditional privilege allows newspapers to report the false defamatory material originally published under the absolute privileges listed above, if done accurately. Sciandra v. Lynett, 409 Pa. 595,187 A. 2d 586 (1963). Even without the presence of a specific constitutional command, therefore, Pennsylvania libel law recognizes that society’s interest in protecting individual reputation of truth. The Court has not yet had occasion to consider the impact of the First Amendment on the application of state libel laws to libels where no issue of general or public interest is involved. See n. 1, supra. However, Griswold v. Connecticut, 381 U. S. 479 (1965), recognized a constitutional right to privacy and at least one commentator has discussed the relation of that right to the First Amendment. Emerson, supra, at 544r-562. Since all agree that this case involves an issue of public or general interest, we have no occasion to discuss that relationship. See n. 12, supra. We do not, however, share the doubts of our Brothers Harlan and Marshall that courts would be unable to identify interests in privacy and dignity. The task may be difficult but not more so than other tasks in this field. 50 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. often yields to other important social goals. In this case, the vital needs of freedom of the press and freedom of speech persuade us that allowing private citizens to obtain damage judgments on the basis of a jury determination that a publisher probably failed to use reasonable care would not provide adequate “breathing space” for these great freedoms. Reasonable care is an “elusive standard” that “would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.” Time, Inc. v. Hill, 385 U. S., at 389. Fear of guessing wrong must inevitably cause self-censorship and thus create the danger that the legitimate utterance will be deterred. Cf. Speiser v. Randall, 357 U. S. 513, 526 (1958). Moreover, we ordinarily decide civil litigation by the preponderance of the evidence. Indeed, the judge instructed the jury to decide the present case by that standard. In the normal civil suit where this standard is employed, “we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor.” In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement—the three-quarter-million-dollar jury verdict in this case could rest on such an error—but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate. These dangers for freedom of speech and press led us to reject the reasonable-man standard of liability as “simply inconsistent” with our national commitment under the First Amendment when sought to be applied to the ROSENBLOOM v. METROMEDIA 51 29 Opinion of Brennan, J. conduct of a political campaign. Monitor Patriot Co. v. Roy, 401 U. S. 265, 276 (1971). The same considerations lead us to reject that standard here. We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799, James Madison made the point in quoting (and adopting) John Marshall’s answer to Talleyrand’s complaints about American newspapers, American State Papers, 2 Foreign Relations 196 (U. S. Cong. 1832): “ ‘Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct zvithout enslaving the press, they have never yet been devised in America.’ ” 6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed. 1906) (emphasis in original). This Court has recognized this imperative: “ [T] o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment 52 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. protect some erroneous publications as well as true ones.” St. Amant v. Thompson, 390 U. S. 727, 732 (1968). We thus hold that a libel action, as here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.18 Calculated falsehood, of course, falls outside “the fruitful exercise of the right of free speech.” Garrison n. Louisiana, 379 U. S. 64, 75 (1964). Our Brothers Harlan and Marshall reject the know-ing-or-reckless-falsehood standard in favor of a test that would require, at least, that the person defamed establish that the publisher negligently failed to ascertain the truth of his story; they would also limit any recovery to “actual” damages. For the reasons we have stated, the negligence standard gives insufficient breathing space to First Amendment values. Limiting recovery to actual damages has the same defects. In the first instance, that standard, too, leaves the First Amendment insufficient elbow room within which to function. It is not simply the possibility of a judgment for damages that results in self-censorship. The very possibility of having to engage in litigation, an expensive and protracted process, 18 At oral argument petitioner argued that “the little man can’t show actual malice. How can George Rosenbloom show that there was actual malice in Metromedia? They never heard of him before.” Tr. of Oral Arg., Dec. 8, 1970, p. 39. But ill will toward the plaintiff, or bad motives, are not elements of the New York Times standard. That standard requires only that the plaintiff prove knowing or reckless falsity. That burden, and no more, is the plaintiff’s whether “public official,” “public figure,” or “little man.” It may be that jury instructions that are couched only in terms of knowing or reckless falsity, and omit reference to “actual malice,” would further a proper application of the New York Times standard to the evidence. ROSENBLOOM v. METROMEDIA 53 29 Opinion of Brennan, J. is threat enough to cause discussion and debate to “steer far wider of the unlawful zone” thereby keeping protected discussion from public cognizance. Speiser v. Randall, 357 U. S., at 526. Cf. Blonder-Tongue Laboratories, Inc. v. University oj Illinois Foundation, 402 U. S. 313, 334r-339 (1971). Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be “actual” or “punitive.” The real thrust of Brothers Harlan’s and Marshall’s position, however, is their assertion that their proposal will not “constitutionalize” the factfinding process. But this clearly is not the way their test would work in practice. Their approach means only that factfinding will shift from an inquiry into whether the defamatory statements were knowingly or recklessly uttered to the inquiry whether they were negligently uttered, and if so, to an inquiry whether plaintiff suffered “actual” damages. This latter inquiry will involve judges even more deeply in factfinding. Would the mere announcement by a state legislature that embarrassment and pain and suffering are measurable actual losses mean that such damages may be awarded in libel actions? No matter how the problem is approached, this Court would ultimately have to fashion constitutional definitions of “negligence” and of “actual damages.” Aside from these particularized considerations, we have repeatedly recognized that courts may not avoid an excursion into factfinding in this area simply because it is time consuming or difficult. We stated in Pennekamp v. Florida, 328 U. S. 331, 335 (1946), that: “The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circum 54 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. stances under which they were made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.” (Footnote omitted.) Clearly, then, this Court has an “obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments,” and in doing so “this Court cannot avoid making an independent constitutional judgment on the facts of the case.” Jacobellis v. Ohio, 378 U. S. 184, 190 (1964). The simple fact is that First Amendment questions of “constitutional fact” compel this Court’s de novo review. See Edwards v. South Carolina, 372 U. S. 229, 235 (1963); Blackburn v. Alabama, 361 U. S. 199, 205 n. 5 (1960). VI Petitioner argues that the instructions on punitive damages either cured or rendered harmless the instructions permitting an award of general damages based on a finding of failure of WIP to exercise reasonable care. We have doubts of the merits of the premise,19 but even 19 The instructions authorized an award of punitive damages upon a finding that a falsehood “arose from a bad motive or . . . that it was published with reckless indifference to the truth . . . punitive damages are awarded as a deterrent from future conduct of the same sort.” App. 333a. The summation of petitioner’s counsel conceded that respondent harbored no ill-will toward petitioner, but, following the suggestion of the instructions that punitive damages are “ ‘smart’ money,” App. 313a, argued that they should be assessed because “[respondent] must be careful the way they impart news information and you can punish them if they weren’t because you could say that was malicious.” Ibid. This was an obvious invitation based on the instructions to award punitive damages for carelessness. Thus the jury was allowed, and even encouraged, to find malice and award punitive damages merely on the basis of negligence and bad motive. ROSENBLOOM v. METROMEDIA 55 29 Opinion of Brennan, J. assuming that instructions were given satisfying the standard of knowing or reckless falsity, the evidence was insufficient to sustain an award for the petitioner under that standard. In these cases our “duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied.” New York Times Co. v. Sullivan, 376 U. S., at 285. Our independent analysis of the record leads us to agree with the Court of Appeals that none of the proofs, considered either singly or cumulatively, satisfies the constitutional standard with the convincing clarity necessary to raise a jury question whether the defamatory falsehoods were broadcast with knowledge that they were false or with reckless disregard of whether they were false or not. The evidence most strongly supporting petitioner is that concerning his visit to WIP’s studio where a part-time newscaster hung up the telephone when petitioner disputed the newscaster’s statement that the District Attorney had characterized petitioner’s magazines as obscene. This contact occurred, however, after all but one of the second series of broadcasts had been aired. The incident has no probative value insofar as it bears on petitioner’s case as to the first series of broadcasts. That portion of petitioner’s case was based upon the omission from the first two broadcasts at 6 and 6:30 p. m. on October 4 of the word “alleged” preceding a characterization of the magazines distributed by petitioner. But that omission was corrected with the 8 p. m. broadcast and was not repeated in the five broadcasts that followed. And we agree with the analysis of the Court of Appeals that led that court, and leads us, to conclude that the episode failed to provide evidence satisfying the New York Times standard insofar as it bore on peti 56 OCTOBER TERM, 1970 Opinion of Brennan, J. 403 U. S. tioner’s case based upon the broadcasts on and after October 21 concerning petitioner’s lawsuit: “Only one broadcast took place after this conversation. It is attacked on the ground that it contains an inaccurate statement concerning plaintiff’s injunction action in that it stated that the district attorney considered plaintiff’s publications to be smut and immoral literature. The transcript of the testimony shows that plaintiff’s own attorney, when questioning defendant’s representative concerning the allegedly defamatory portion of the last broadcast, said that he was not questioning its ‘accuracy’. Furthermore, his examination of the same witness brought out that defendant’s representative confirmed the story with the judge involved before the broadcast was made. We think that the episode described failed to provide evidence of actual malice with the requisite convincing clarity to create a jury issue under federal standards.” 415 F. 2d, at 897. Petitioner argues finally that WIP’s failure to communicate with him to learn his side of the case and to obtain a copy of the magazine for examination, sufficed to support a verdict under the New York Times standard. But our “cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U. S., at 731. Respondent here relied on information supplied by police officials. Following petitioner’s complaint about the accuracy of the broadcasts, WIP checked its last report with the judge who presided in the case. While we may assume that the District Court correctly held to be defamatory ROSENBLOOM v. METROMEDIA 57 29 White, J., concurring in judgment respondent’s characterizations of petitioner’s business as “the smut literature racket,” and of those engaged in it as “girlie-book peddlers,” there is no evidence in the record to support a conclusion that respondent “in fact entertained serious doubts as to the truth” of its reports. Affirmed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Black, concurring in the judgment. I concur in the judgment of the Court for the reasons stated in my concurring opinion in New York Times Co. v. 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). I agree of course that First Amendment protection extends to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” Ante, at 44. However, in my view, the First Amendment does not permit the recovery of libel judgments against the news media even when statements are broadcast with knowledge they are false. As I stated in Curtis Publishing Co. v. Butts, supra, “[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.” Id., at 172. Mr. Justice White, concurring in the judgment. I Under existing law the First Amendment is deemed to permit recoveries for damaging falsehoods published 58 OCTOBER TERM, 1970 White, J., concurring in judgment 403 U.S. about public officials or public figures only if the defamation is knowingly or recklessly false. But until today the First Amendment has not been thought to prevent citizens who are neither public officials nor public figures from recovering damages for defamation upon proving publication of a false statement injurious to their reputation. There has been no necessity to show deliberate falsehood, recklessness, or even negligence. The Court has now decided that the First Amendment requires further restrictions on state defamation laws. Mr. Justice Brennan and two other members of the Court would require proof of knowing or reckless misrepresentation of the facts whenever the publication concerns a subject of legitimate public interest, even though the target is a “private” citizen. Only residual areas would remain in which a lower degree of proof would obtain. Three other members of the Court also agree that private reputation has enjoyed too much protection and the media too little. But in the interest of protecting reputation, they would not roll back state laws so far. They would interpret the First Amendment as proscribing liability without fault and would equate non-negli-gent falsehood with faultless conduct. The burden of the damaging lie would be shifted from the media to the private citizen unless the latter could prove negligence or some higher degree of fault. They would also drastically limit the authority of the States to award compensatory and punitive damages for injury to reputation. Mr. Justice Black, consistently with the views that he and Mr. Justice Douglas have long held, finds no room in the First Amendment for any defamation recovery whatsoever. Given this spectrum of proposed restrictions on state defamation laws and assuming that Mr. Justice Black and Mr. Justice Douglas will continue in future cases ROSENBLOOM v. METROMEDIA 59 29 White, J., concurring in judgment to support the severest of the restrictions, it would seem that at least five members of the Court would support each of the following rules: For public officers and public figures to recover for damage to their reputations for libelous falsehoods, they must prove either knowing or reckless disregard of the truth. All other plaintiffs must prove at least negligent falsehood, but if the publication about them was in an area of legitimate public interest, then they too must prove deliberate or reckless error. In all actions for libel or slander, actual damages must be proved, and awards of punitive damages will be strictly limited. II For myself, I cannot join any of the opinions filed in this case. Each of them decides broader constitutional issues and displaces more state libel law than is necessary for the decision in this case. As I have said, Mr. Justice Brennan would extend the privilege enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), to publications upon any “subject of public or general interest.” See ante, at 43. He would thereby extend the constitutional protection to false and damaging, but non-malicious, publications about such matters as the health and environmental hazards of widely used manufactured products, the mental and emotional stability of executives of business establishments, and the racial and religious prejudices of many groups and individuals. All of these are, of course, subjects of real concern, and arguments for placing them within the scope of New York Times are by no means frivolous. For Mr. Justice Marshall and Mr. Justice Harlan, Mr. Justice Brennan’s opinion is both too severe and too limited. They would make more sweeping incursions into state tort law but purportedly with less destructive weapons. They would permit suit by some plaintiffs 60 OCTOBER TERM, 1970 White, J., concurring in judgment 403 U. S. barred under Mr. Justice Brennan’s opinion, but would require all plaintiffs to prove at least negligence before any recovery would be allowed. I prefer at this juncture not to proceed on such a broad front. I am quite sure that New York Times Co. n. Sullivan was the wiser course, but I am unaware that state libel laws with respect to private citizens have proved a hazard to the existence or operations of the communications industry in this country. Some members of the Court seem haunted by fears of self-censorship by the press and of damage judgments that will threaten its financial health. But technology has immeasurably increased the power of the press to do both good and evil. Vast communication combines have been built into profitable ventures. My interest is not in protecting the treasuries of communicators but in implementing the First Amendment by insuring that effective communication which is essential to the continued functioning of our free society. I am not aware that self-censorship has caused the press to tread too gingerly in reporting “news” concerning private citizens and private affairs or that the reputation of private citizens has received inordinate protection from falsehood. I am not convinced that we must fashion a constitutional rule protecting a whole range of damaging falsehoods and so shift the burden from those who publish to those who are injured. I say this with considerable deference since all my Brethren have contrary views. But I would not nullify a major part of state libel law until we have given the matter the most thorough consideration and can articulate some solid First Amendment grounds based on experience and our present condition. As it is, today’s experiment rests almost entirely on theoretical grounds and represents a purely intellectual derivation from what are thought to be important principles of tort ROSENBLOOM v. METROMEDIA 61 29 White, J., concurring in judgment law as viewed in the light of the primacy of the written and spoken word. This case lends itself to more limited adjudication. New York Times Co. v. Sullivan itself made clear that discussion of the official actions of public servants such as the police is constitutionally privileged. “The right of free public discussion of the stewardship of public officials” is, in the language of that case, “a fundamental principle of the American form of government.” 376 U. S., at 275. Discussion of the conduct of public officials cannot, however, be subjected to artificial limitations designed to protect others involved in an episode with officials from unfavorable publicity. Such limitations would deprive the public of full information about the official action that took place. In the present case, for example, the public would learn nothing if publication only of the fact that the police made an arrest were permitted ; it is also necessary that the grounds for the arrest and, in many circumstances, the identity of the person arrested be stated. In short, it is rarely informative for a newspaper or broadcaster to state merely that officials acted unless he also states the reasons for their action and the persons whom their action affected. Nor can New York Times be read as permitting publications that invade the privacy or injure the reputations of officials, but forbidding those that invade the privacy or injure the reputations of private citizens against whom official action is directed. New York Times gives the broadcasting media and the press the right not only to censure and criticize officials but also to praise them and the concomitant right to censure and criticize their adversaries. To extend constitutional protection to criticism only of officials would be to authorize precisely that sort of thought control that the First Amendment forbids government to exercise. 427-293 0 - 72 -8 62 OCTOBER TERM, 1970 Harlan, J., dissenting 403 U. S. I would accordingly hold that in defamation actions, absent actual malice as defined in New York Times Co. n. Sullivan, the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view. Since respondent Metromedia did nothing more in the instant case, I join in holding its broadcasts privileged. I would not, however, adjudicate cases not now before the Court. Mr. Justice Harlan, dissenting. The very facts of this case demonstrate that uncritical acceptance of the Pennsylvania libel law here involved would be inconsistent with those important First and Fourteenth Amendment values we first treated with in an analogous context in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). However, as the plurality opinion implicitly recognizes, only an undiscriminating assessment of those values would lead us to extend the New York Times rule in full force to all purely private libels. My Brother Brennan’s opinion would resolve the dilemma by distinguishing those private libels that arise out of events found to be of “public or general concern” from those that do not, and subjecting the former to full-scale application of the New York Times rule. For the reasons set forth in Part I of my Brother Marshall’s dissent, I cannot agree to such a solution. As he so well demonstrates, the principal failing of the plurality opinion is its inadequate appreciation of the limitations imposed by the legal process in accommodating the tension between state libel laws and the federal constitutional protection given to freedom of speech and press. ROSENBLOOM v. METROMEDIA 63 29 Harlan, J., dissenting Once the evident need to balance the values underlying each is perceived, it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values1 transcend the legitimate state interest in protecting the particular plaintiff who prevailed. This seems to be what is done in the plurality opinion. But we did not embrace this technique in New York Times, supra. Instead, as my Brother Marshall observes, we there announced a rule of general application, not ordinarily dependent for its implementation upon a case-by-case examination of trial court verdicts. See also my dissent in Time, Inc. v. Pape, 401 U. S. 279, 293 (1971). Nor do I perceive any developments in the seven years since we decided New York Times, supra, that suggest our original method should now be abandoned. At least where we can discern generally applicable rules that should balance with fair precision the competing interests at stake, such rules should be preferred to the plurality’s approach both in order to preserve a measure of order and predictability in the law that must govern the daily conduct of affairs and to avoid subjecting the press to judicial second-guessing of the newsworthiness of each item they print. Consequently, I fully concur in Part I of Mr. Justice Marshall’s dissent. 1 Of course, for me, this case presents a Fourteenth, not a purely First, Amendment issue, for the question is one of the constitutionality of the applicable Pennsylvania libel laws. However, I have found it convenient, in the course of this opinion, occasionally to speak directly of the First Amendment as a shorthand phrase for identifying those constitutional values of freedom of expression guaranteed to individuals by the Due Process Clause of the Fourteenth Amendment. 64 OCTOBER TERM, 1970 Harlan, J., dissenting 403 U. S. Further, I largely agree with the alternative proposals of that dissent. I, too, think that, when dealing with private libel, the States should be free to define for themselves the applicable standard of care so long as they do not impose liability without fault; that a showing of actual damage should be a requisite to recovery for libel; and that it is impermissible, given the substantial constitutional values involved, to fail to confine the amount of jury verdicts in such cases within any ascertainable limits. However, my reasons for so concluding are somewhat different than his, and I therefore reach a different result than he does with respect to the tolerable limits of punitive damages. I I think we all agree on certain core propositions. First, as a general matter, the States have a perfectly legitimate interest, exercised in a variety of ways, in redressing and preventing careless conduct, no matter who is responsible for it, that inflicts actual, measurable injury upon individual citizens. Secondly, there is no identifiable value worthy of constitutional protection in the publication of falsehoods. Third, although libel law provides that truth is a complete defense, that principle, standing alone, is insufficient to satisfy the constitutional interest in freedom of speech and press. For we have recognized that it is inevitable that there will be “some error in the situation presented in free debate,” Time, Inc. v. Hill, 385 U. S. 374, 406 (1967) (opinion of this writer), a process that needs “breathing space,” NAACP v. Button, 371 U. S. 415, 433 (1963), to flourish, and that “putting to the pre-existing prejudices of a jury the determination of what is ‘true’ may effectively institute a system of censorship.” Time, Inc. v. Hill, supra, at 406. Moreover, any system that punishes certain speech is likely to induce self-censorship by those who would other- ROSENBLOOM v. METROMEDIA 65 29 Harlan, J., dissenting wise exercise their constitutional freedom. Given the constitutionally protected interest in unfettered speech, it requires an identifiable, countervailing state interest, consistent with First Amendment values, to justify a regulatory scheme that produces such results. And, because the presence of such values dictates closer scrutiny of this aspect of state tort law than the Fourteenth Amendment would otherwise command, it may well be that certain rules, impervious to constitutional attack when applied to ordinary human conduct, may have to be altered or abandoned where used to regulate speech. Finally, as determined in New York Times, the constitutional interest in tolerance of falsehood as well as the need to adjust competing societal interests, prohibits, at a minimum, the imposition of liability without fault. The precise standard of care necessary to achieve these goals is, however, a matter of dispute as is the range of penalties a State may prescribe for a breach of that standard. In analyzing these problems it is necessary to begin with a general analytical framework that defines those competing interests that must be reconciled. My Brother Marshall’s opinion, I think, dwells too lightly upon the nature of the legitimate countervailing interests promoted by the State’s libel law and, as a result, overstates the case against punitive damages. Because we deal with a set of legal rules that treat truth as a complete defense it strikes, I think, somewhat wide of the mark to treat the State’s interest as one of protecting reputations from “unjustified invasion.” Post, at 78. By hypothesis, the respondent here was free to reveal any true facts about petitioner’s “obscure private life.” 2 21 would expressly reserve, for a case properly presenting it, the issue whether the New York Times rule should have any effect on “privacy” litigation. The problem is briefly touched upon in Time, Inc. n. HUI, 385 U. S. 374, 404—405 (1967) (Harlan, J., concurring and dissenting). 66 OCTOBER TERM, 1970 Harlan, J., dissenting 403 U. S. Given the defense of truth, it is my judgment that, in order to assure that it promotes purposes consistent with First Amendment values, the legitimate function of libel law must be understood as that of compensating individuals for actual, measurable harm caused by the conduct of others. This can best be demonstrated by postulating a law that subjects publishers to jury verdicts for falsehoods that have done the plaintiff no harm. In my view, such a rule can only serve a purpose antithetical to those of the First Amendment. It penalizes speech, not to redress or avoid the infliction of harm, but only to deter the press from publishing material regarding private behavior that turns out to be false simply because of its falsity. This the First Amendment will not tolerate. Where the State cannot point to any tangible danger, even knowingly erroneous publication is entitled to constitutional protection because of the interest in avoiding an inquiry into the mere truth or falsity of speech. Moreover, such a scheme would impose a burden on speaking not generally placed upon constitutionally unprotected conduct—the payment of private fines for conduct which, although not conformed to established limits of care, causes no harm in fact. Conversely, I think that where the purpose and effect of the law are to redress actual and measurable injury to private individuals that was reasonably foreseeable as a result of the publication, there is no necessary conflict with the values of freedom of speech. Just as an automobile negligently driven can cost a person his physical and mental well-being and the fruits of his labor, so can a printing press negligently set. While the First Amendment protects the press from the imposition of special liabilities upon it, “[t]o exempt a publisher, because of the nature of his calling, from an imposition generally exacted from other members of the community, would be to extend a protection not required by the constitutional ROSENBLOOM v. METROMEDIA 67 29 Harlan, J., dissenting guarantee.” Curtis Publishing Co. v. Butts, 388 U. S. 130, 160 (1967) (opinion of this writer). A business “is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.” Associated Press v. NLRB, 301 U. S. 103, 132-133 (1937). That the damage has been inflicted by words rather than other instrumentalities cannot insulate it from liability. States may legitimately be required to use finer regulatory tools where dealing with “speech,” but they are not wholly disabled from exacting compensation for its measurable adverse consequences. If this is not so, it is difficult to understand why governments may, for example, proscribe “misleading” advertising practices or specify what is “true” in the dissemination of consumer credit advertisements. Nor does this interest in compensating victims of harmful conduct somehow disappear when the damages inflicted are great. So long as the effect of the law of libel is simply to make publishers pay for the harm they cause, and the standard of care required is appropriately adjusted to take account of the special countervailing interests in an open exchange of ideas, the fact that this may involve the payment of substantial sums cannot plausibly be said to raise serious First Amendment problems. If a newspaper refused to pay its bills because to do so would put it out of business, would the First Amendment dictate that this be treated as a partial or complete defense? If an automobile carrying a newsman to the scene of a history-making event ran over a pedestrian, would the size of the verdict, if based upon generally applicable tort law principles, have to be assessed against the probability that it would deter broadcasters from news gathering before it could pass muster under the First Amendment? 68 OCTOBER TERM, 1970 Harlan, J., dissenting 403 U. S. However, without foreclosing the possibility that other limiting principles may be surfaced by subsequent experience, I do think that since we are dealing, by hypothesis, with infliction of harm through the exercise of freedom of speech and the press to which the Constitution gives explicit protection, recoverable damages must be limited to those consequences of the publication which are reasonably foreseeable. The usual tort rule seems to be that once some foreseeable injury has been inflicted, the negligent defendant must compensate for all damages he proximately caused in fact, no matter how peculiar were the circumstances of the particular plaintiff involved. W, Prosser, The Law of Torts § 50 (3d ed. 1964). However, our cases establish, I think, that, unless he has knowledge to the contrary, a speaker is entitled to presume that he is addressing an audience that is not especially susceptible to distress at the specter of open, uninhibited, robust speech. Cohen v. California, ante, p. 15. See also Brandenburg v. Ohio, 395 U. S. 444 (1969); Butler v. Michigan, 352 U. S. 380 (1957). Thus, I think the speaker should be free from a duty to compensate for actual harm inflicted by his falsehoods where the defamation would not have caused such harm to a person of average sensibilities unless, of course, the speaker knew that his statements were made concerning an unusually sensitive person. In short, I think the First Amendment does protect generally against the possibility of self-censorship in order to avoid unwitting affronts to the frail and the queasy. II Of course, it does not follow that so long as libel law performs the same compensatory function as civil law generally it is necessarily legitimate in all its various applications. The presence of First Amendment values means that the State can be compelled to utilize finer, ROSENBLOOM v. METROMEDIA 69 29 Harlan, J., dissenting more discriminating instruments of regulation where necessary to give more careful protection to these countervailing interests. New York Times, supra, and Curtis Publishing Co., supra, established that where the injured party is a “public figure” or a “public official,” the interest in freedom of speech dictates that the States forgo their interest in compensating for actual harm, even upon a basis generally applicable to all members of society, unless the plaintiff can show that the injurious publication was false and was made “with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times, supra, at 280. Tacitly recognizing that it would unduly sacrifice the operative legitimate state interests to extend this rule to all cases where the injured party is simply a private individual, the plurality opinion would nevertheless apply it where the publication concerned such a person’s “involvement in an event of public or general concern.” Ante, at 52. I would not overrule New York Times or Curtis Publishing Co. and I do agree, as indicated above, that making liability turn on simple falsity in the purely private libel area is not constitutionally permissible. But I would not construe the Federal Constitution to require that the States adhere to a standard other than that of reasonable care where the plaintiff is an ordinary citizen. My principal concern with the plurality’s view, of course, is that voiced by my Brother Marshall. However, even if this objection were not tenable, unlike the plurality, I do think there is a difference, relevant to the interests here involved, between the public and the private plaintiff, as our cases have defined these categories, and that maintaining a constitutional distinction between them is at least as likely to protect true First Amendment concerns as one that eradicates such a line and substitutes for it a distinction between matters we think are of true social significance and those we think are not. 70 OCTOBER TERM, 1970 Harlan, J., dissenting 403 U. S. To begin, it does no violence, in my judgment, to the value of freedom of speech and press to impose a duty of reasonable care upon those who would exercise these freedoms. I do not think it can be gainsaid that the States have a substantial interest in encouraging speakers to carefully seek the truth before they communicate, as well as in compensating persons actually harmed by false descriptions of their personal behavior. Additionally, the burden of acting reasonably in taking action that may produce adverse consequences for others is one generally placed upon all in our society. Thus, history itself belies the argument that a speaker must somehow be freed of the ordinary constraints of acting with reasonable care in order to contribute to the public good while, for example, doctors, accountants, and architects have constantly performed within such bounds. This does not mean that I do not agree with the rule of New York Times, supra, but only that I deem it inapplicable here. That rule was not, I think, born solely of a desire to free speech that would otherwise have been stifled by overly restrictive rules, but also rested upon a determination that the countervailing state interests, described above, were not fully applicable where the subject of the falsehood was a public official or a public figure. For me, it does seem quite clear that the public person has a greater likelihood of securing access to channels of communication sufficient to rebut falsehoods concerning him than do private individuals in this country who do not toil in the public spotlight. Similarly, our willingness to assume that public personalities are more impervious to criticism, and may be held to have run the risk of publicly circulated falsehoods concerning them, does not rest solely upon an empirical assertion of fact, but also upon a belief that, in our political system, the individual speaker is entitled to act upon such an assumption if our institutions are to be held ROSENBLOOM v. METROMEDIA 71 29 Harlan, J., dissenting up, as they should be, to constant scrutiny. And, at least as to the “public official,” it seems to be universally the case that he is entitled to an absolute immunity for what he may utter in response to the charges of others. Where such factors are present the need to provide monetary compensation for defamation appears a good deal more attenuated. Finally, in light of the plurality opinion’s somewhat extravagant delineation of the public interest involved in the dissemination of information about nonpublic persons, it bears emphasizing that a primary rationale for extending the New York Times rule to public figures was the desire to reflect, in the constitutional balance, the fact that “in this country, the distinctions between governmental and private sectors are blurred,” Curtis Publishing Co., supra, at 163 (opinion of Warren, C. J.), and to treat constitutional values as specially implicated where important, albeit nonofficial, policy and behavior were the subjects of discussion. At the very least, this tends to diminish the force of any contention that libelous depictions of nonpublic persons are often likely to involve matters of abiding public significance. I cannot agree that the First Amendment gives special protection to the press from “[tjhe very possibility of having to engage in litigation,” ante, at 52 (opinion of Brennan, J.). Were this assertion tenable, I do not see why the States could ever enforce their libel laws. Cf. my Brother Black’s opinion, ante, at 57. Further, it would certainly cast very grave doubts upon the constitutionality of so-called “right-of-reply statutes” advocated by the plurality, ante, at 47 n. 15, and ultimately treat the application of any general law to a publisher or broadcaster as an important First Amendment issue. The notion that such an interest, in the context of a purely private libel, is a significant independent constitutional value is an unfortunate consequence of the plurality’s 72 OCTOBER TERM, 1970 Harlan, J., dissenting 403 U. S. single-minded devotion to the task of preventing selfcensorship, regardless of the purposes for which such restraint is induced or the evils its exercise tends to avoid. It is, then, my judgment that the reasonable care standard adequately serves those First Amendment values that must inform the definition of actionable libel and that those special considerations that made even this standard an insufficiently precise technique when applied to plaintiffs who are “public officials” or “public figures” do not obtain where the litigant is a purely private individual. Ill There remains the problem of punitive damages.3 No doubt my Brother Marshall is correct in asserting that the specter of being forced to pay out substantial punitive damage awards is likely to induce self-censorship. This would probably also be the case where the harm actually caused is likely to be great. But, as I indicated above, this fact in itself would not justify construing the First Amendment to impose an arbitrary limitation on the amount of actual damages recoverable. Thus, as my Brother Marshall would apparently agree—since he, too, proposes no limitation on actual damages—one cannot jump from the proposition that fear of substantial punitive damage awards may be an important factor in 3 The conclusions I reach in Part III of this opinion are somewhat different from those I embraced four Terms ago in Curtis Publishing Co., supra, at 159-161. Where matters are in flux, however, it is more important to re-think past conclusions than to adhere to them without question and the problem under consideration remains in a state of evolution, as is attested to by all the opinions filed today. Reflection has convinced me that my earlier opinion painted with somewhat too broad a brush and that a more precise balancing of the conflicting interests involved is called for in this delicate area. ROSENBLOOM v. METROMEDIA 73 29 Harlan, J., dissenting inducing self-censorship directly to the result that punitive damages cannot be assessed in all private libel cases. A more particularized inquiry into the nature of the competing interests involved is necessary in order to ascertain whether awarding punitive damages must inevitably, in private libel cases, serve only interests that are incompatible with the First Amendment. At a minimum, even in the purely private libel area, I think the First Amendment should be construed to limit the imposition of punitive damages to those situations where actual malice is proved. This is the typical standard employed in assessing anyone’s liability for punitive damages where the underlying aim of the law is to compensate for harm actually caused, see, e. g., 3 L. Frumer et al., Personal Injury §2.02 (1965); H. Oleck, Damages to Persons and Property § 30 (1955), and no conceivable state interest could justify imposing a harsher standard on the exercise of those freedoms that are given explicit protection by the First Amendment. The question then arises whether further limitations on this general state power must be imposed in order to serve the particularized goals of the First Amendment. The most compelling rationale for providing punitive damages where actual malice is shown is that such damages assure that deterrent force is added to the jury’s verdict. If the speaker’s conduct was quite likely to produce substantial harm, but fortuitously did not, simple assessment of actual damages will not fully reflect the social interest in deterring that conduct generally. Further, even if the harm done was great the defendant may have unusually substantial resources that make the award of actual damages a trivial inconvenience of no actual deterrent value. And even where neither of these factors obtains, the State always retains an interest in punishing more severely conduct that, although it causes the same effect, is more morally blameworthy. For example, con 74 OCTOBER TERM, 1970 Harlan, J., dissenting 403 U. S. sider the distinction between manslaughter and first-degree murder. I find it impossible to say, at least without further judicial experience in this area, that the First Amendment interest in avoiding self-censorship will always outweigh the state interest in vindicating these policies. It seems that a legislative choice is permissible which, for example, seeks to induce, through a reasonable monetary assessment, repression of false material, published with actual malice, that was demonstrably harmful and reasonably thought capable of causing substantial harm, but, in fact, was not so fully injurious to the individual attacked. Similarly, the State surely has a legitimate interest in seeking to assure that its system of compensating victims of negligent behavior also operates upon all as an inducement to avoidance of such conduct. And, these are burdens that are placed on all members of society, thus permitting the press to escape them only if its interest is somehow different in this regard. However, from the standpoint of the individual plaintiff such damage awards are windfalls. They are, in essence, private fines levied for purposes that may be wholly unrelated to the circumstances of the actual litigant. That fact alone is not, I think, enough to condemn them. The State may, as it often does, use the vehicle of a private lawsuit to serve broader public purposes. It is noteworthy that my Brother Marshall does not rest his objection to punitive damages upon these grounds. He fears, instead, the self-censorship that may flow from the unbridled discretion of juries to set the amount of such damages. I agree that where these amounts bear no relationship to the actual harm caused, they then serve essentially as springboards to jury assessment, without reference to the primary legitimating compensatory function of the system, of an infinitely wide range of penalties wholly unpredictable in amount at the time of the pub- ROSENBLOOM v. METROMEDIA 75 29 Harlan, J., dissenting lication and that this must be a substantial factor in inducing self-censorship. Further, I find it difficult to fathom why it may be necessary, in order to achieve its justifiable deterrence goals, for the States to permit punitive damages that bear no discernible relationship to the actual harm caused by the publication at issue. A rational determination of the injury a publication might potentially have inflicted should typically proceed from the harm done in fact. And where the compensatory scheme seeks to achieve deterrence as a subsidiary byproduct, the desired deterrence, if not precisely measured by actual damages, should be informed by that touchstone if deterrence of falsehood is not to replace compensation for harm as the paramount goal. Finally, while our legal system does often mete out harsher punishment for more culpable acts, it typically begins with a gradation of offenses defined in terms of effects. Compare, for example, larceny with murder. It is not surprising, then, that most States apparently require that punitive damages in most private civil actions bear some reasonable relation to the actual damages awarded, Oleck, at § 275, Pennsylvania included, Weider v. Hofjman, 238 F. Supp. 437, 444-447 (MD Pa. 1965). However, where the amount of punitive damages awarded bears a reasonable and purposeful relationship to the actual harm done, I cannot agree that the Constitution must be read to prohibit such an award. Indeed, as I understand it, my Brother Marshall’s objection to my position4 is not that the interest in freedom of speech dictates eliminating such judgments, but that this result 4 Of course, I do not envision that, consistently with my views, the States could only exact some predetermined multiple of the actual damages found. I should think a jury could simply be instructed, along the lines set out in my opinion, on the legitimate uses of the punitive damage award and the necessity for relating any such judgment to the harm actually done. 76 OCTOBER TERM, 1970 Harlan, J., dissenting 403 U. S. is compelled by the need to avoid involving courts in an “ad hoc balancing” of “the content of the speech and the surrounding circumstances,” post, at 86, 85, much like that undertaken today in Part VI of the plurality opinion, the same technique criticized in my dissent in Time, Inc. n. Pape, supra. I find this argument unpersuasive. First, I do not see why my proposed rule would necessarily require frequent judicial re weighing of the facts underlying each jury verdict. A carefully and properly instructed jury should ordinarily be able to arrive at damage awards that are self-validating. It is others, not I, who have placed upon the federal courts the general duty of re weighing jury verdicts regarding the degree of fault demonstrated in libel actions. Further, to the extent that supervision of jury verdicts would be required it would entail a different process from that undertaken where judges redetermine the degree of fault. The defendant’s resources, the actual harm suffered by the plaintiff, and the publication’s potential for actual harm are all susceptible of more or less objective measurement. And the overriding principle that deterrence is not to be made a substitute for compensation should serve as a useful mechanism for adjusting the equation. Finally, even if some marginal “ad hoc balancing” becomes necessary, I should think it the duty of this Court at least to attempt to implement such a process before pre-empting, for itself, all state power in this regard.6 5 The plurality opinion states that the “real thrust” of nay position is that it “will not ‘constitutionalize’ the factfinding process.” Ante, at 53. In fact, I have attempted to demonstrate throughout this opinion that I believe the positions of my Brothers Brennan, Black, and Marshall all, in varying degrees, overstate the extent to which libel law is incompatible with the constitutional guarantee of freedom of expression, and have pointed out that I think my views ROSENBLOOM v. METROMEDIA 77 29 Harlan, J., dissenting In sum, given the fact that it seems to reflect the majority rule, that most of our jurisprudence proceeds upon the premise that legislative purposes can be achieved by fitting the punishment to the crime, and since we deal here with a precise constitutional interest that may legitimately require the States to resort to more discriminating regulation within a more circumscribed area of permissible concern, I would hold unconstitutional, in a private libel case, jury authority to award punitive damages which is unconfined by the requirement that these awards bear a reasonable and purposeful relationship to the actual harm done. Conversely, where the jury authority has been exercised within such constraints, and the plaintiff has proved that the speaker acted out of express malice, given the present state of judicial experience, I think it would be an unwarranted intrusion into the legitimate legislative processes of the States and an impermissibly broad construction of the First Amendment to nullify that state action. Because the Court of Appeals adjudicated this case upon principles wholly unlike those suggested here, I have merit “even if [the objection noted in my Brother Marshall’s opinion] were not tenable.” Supra, at 69. Moreover, the assertion that an inquiry into whether actual damages were suffered “will involve judges even more deeply in factfinding,” ante, at 53, than ascertaining whether “the defendant in fact entertained serious doubts as to the truth of his publication,” ante, at 56, or whether the publication involved “an event of public or general concern,” ante, at 52, seems to me to carry its own refutation. The former focuses on measurable, objective fact; the latter upon subjective, personal belief. Finally, I cannot see why juries may not typically be entrusted responsibly to determine whether a publisher was negligent, a function they perform in judging the harmful conduct of most other members of society; or why it should be materially more difficult for judges to oversee such decisions where a speaker, rather than any other actor, is a defendant. 427-293 0- 72 -9 78 OCTOBER TERM, 1970 Marshall, J., dissenting 403 U. S. would vacate the judgment below and remand the case for further proceedings consistent with the views expressed herein. Mr. Justice Marshall, with whom Mr. Justice Stewart joins, dissenting. Here, unlike the other cases involving the New York Times1 doctrine, we are dealing with an individual who held no public office, who had not taken part in any public controversy, and who lived an obscure private life.* 2 George Rosenbloom, before the events and reports of the events involved here, was just one of the millions of Americans who live their lives in obscurity. The protection of the reputation of such anonymous persons “from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.” Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring). But the concept of a citizenry informed by a free and unfettered press is also basic to our system of ordered liberty. Here these two essential and fundamental values conflict. I The plurality has attempted to resolve the conflict by creating a conditional constitutional privilege for defamation published in connection with an event that is found to be of “public or general concern.” The condition for the privilege is that the defamation must not be published “with knowledge that it was false or with reckless 'New York Times Co. v. Sullivan, 376 U. S. 254 (1964). 2 See, e. g., Associated Press n. Walker, 388 U. S. 130 (1967); Curtis Publishing Co. n. Butts, 388 U. S. 130 (1967); Beckley Newspapers Corp. v. Hanks, 389 U. S. 81 (1967); Greenbelt Publishing Assn. v. Bresler, 398 U. S. 6 (1970); Rosenblatt n. Baer, 383 U S 75 (1966). ROSENBLOOM v. METROMEDIA 79 29 Marshall, J., dissenting disregard of whether it was false or not.” I believe that this approach offers inadequate protection for both of the basic values that are at stake. In order for particular defamation to come within the privilege there must be a determination that the event was of legitimate public interest. That determination will have to be made by courts generally and, in the last analysis, by this Court in particular. Courts, including this one, are not anointed with any extraordinary prescience. But, assuming that under the rule announced by Mr. Justice Brennan for the plurality, courts are not simply to take a poll to determine whether a substantial portion of the population is interested or concerned in a subject, courts will be required to somehow pass on the legitimacy of interest in a particular event or subject; what information is relevant to self-government. See Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring). The danger such a doctrine portends for freedom of the press seems apparent. The plurality’s doctrine also threatens society’s interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation. This danger exists since all human events are arguably within the area of “public or general concern.” My Brother Brennan does not try to provide guidelines or standards by which courts are to decide the scope of public concern. He does, however, indicate that areas exist that are not the proper focus of public concern, and cites Griswold v. Connecticut, 381 U. S. 479 (1965). But it is apparent that in an era of a dramatic threat of overpopulation and one in which previously accepted standards of conduct are widely heralded as outdated, even the intimate and personal concerns with which the Court dealt in that case cannot be said to be outside the area of “public or general concern.” 80 OCTOBER TERM, 1970 Marshall, J., dissenting 403 U. S. The threats and inadequacies of using the plurality’s conditional privilege to resolve the conflict between the two basic values involved here have been illustrated by the experience courts have had in trying to deal with the right of privacy. See Cohen, A New Niche for the Fault Principle: A Forthcoming News worthiness Privilege in Libel Cases?, 18 U. C. L. A. L. Rev. 371, 379-381 (1970); Kalven, Privacy in Tort Law— Were Warren and Brandeis Wrong?, 31 Law & Con-temp. Prob. 326, 336 (1966). The authors of the most famous of all law review articles recommended that no protection be given to privacy interests when the publication dealt with a “matter which is of public or general interest.” Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890). Yet cases dealing with this caveat raise serious questions whether it has substantially destroyed the right of privacy as Warren and Brandeis envisioned it.3 For example, the publication of a picture of the body of plaintiff’s daughter immediately after her death in an automobile accident was held to be protected. Kelley v. Post Publishing Co., 327 Mass. 275, 98 N. E. 2d 286 (1951). And the publication of the details of the somewhat peculiar behavior of a former child prodigy, who had a passion for obscurity, was found to involve a matter of public concern. Sidis v. F-R Pub. Corp., 113 F. 2d 806 (CA2 1940). In New York Times the Court chose to balance the competing interests by seeming to announce a generally applicable rule. Here it is apparent that the general rule announced cannot have general applicability. The plurality’s conditional privilege approach, when coupled 3 For cases in which the courts have protected the privacy of persons involved in dramatic public events see Mau v. Rio Grande OU, Inc., 28 F. Supp. 845 (ND Cal. 1939), and Melvin v. Reid, 112 Cal. App. 285, 297 P. 91 (1931). ROSENBLOOM v. METROMEDIA 81 29 Marshall, J., dissenting with constitutionalizing of the factfinding process,4 see Part VI of Mr. Justice Brennan’s opinion, results in the adoption of an ad hoc balancing of the two interests involved. The Court is required to weigh the nuances of each particular circumstance on its scale of values regarding the relative importance of society’s interest in protecting individuals from defamation against the importance of a free press. This scale may arguably be a more finely tuned instrument in a particular case. But whatever precision the ad hoc method supplies is achieved at a substantial cost in predictability and certainty. Moreover, such an approach will require this Court to engage in a constant and continuing supervision of defamation litigation throughout the country. See Time, Inc. v. Pape, 401 U. S. 279, 293 (1971) (Harlan, J., dissenting); Curtis Publishing Co. v. Butts, 388 U. S. 130, 171 (1967) (opinion of Black, J.). Undoubtedly, ad hoc balancing may be appropriate in some circumstances that involve First Amendment problems. See, e. g., Bates v. Little Rock, 361 U. S. 516 (1960); Tinker n. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). But in view of the shortcomings of my Brother Brennan’s test, defamation of a private individual by the mass media is not one of the occasions for unfettered ad hoc balancing. A generally applicable resolution is available that promises to provide an adequate balance between the interest in protecting individuals from defamation and the equally basic interest in protecting freedom of the press. II As the plurality recognizes here and as was recognized as the basic premise of the New York Times principle, the threat that defamation law presents for the values See Time, Inc. v. Pape, 401 U. S. 279 (1971). 82 OCTOBER TERM, 1970 Marshall, J., dissenting 403 U. S. encompassed in the concept of freedom of the press is that of self-censorship.5 Our notions of liberty require a free and vigorous press that presents what it believes to be information of interest or importance; not timorous, afraid of an error that leaves it open to liability for hundreds of thousands of dollars. The size of the potential judgment that may be rendered against the press must be the most significant factor in producing self-censorship—a judgment like the one rendered against Metromedia would be fatal to many smaller publishers.6 The judgments that may be entered in defamation cases are unlike those that may be entered in most litigation since the bulk of the award is given to punish the defendant or to compensate for presumed damages. Here the jury awarded Mr. Rosenbloom $725,000 in punitive damages.7 This huge sum was given not to compensate him for any injury but to punish Metromedia. The concept of punitive or exemplary damages was first articulated in Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K. B. 1763)—one of the general warrant cases. There Lord Camden found that the power to award such damages was inherent in the jury’s exercise of uncontrolled discretion in the awarding of damages. See 1 T. Sedgwick, Damages §§347-350 (9th ed. 1912). Today these damages are rationalized as a way to punish the wrongdoer and to admonish others not to err. See Morris, Punitive Damages in Tort Cases, 44 Harv. L. Rev. 1172 (1931). Thus they serve the same function as criminal penalties and are in effect private fines. Unlike criminal penalties, however, punitive damages are not awarded within discernible limits but can be awarded 5 New York Times Co. v. Sullivan, 376 U. S., at 279. 6 The jury awarded Mr. Rosenbloom $25,000 in general damages and $725,000 in punitive damages. The District Court reduced the punitive damages to $250,000 on remittitur. 7 See n. 6, supra. ROSENBLOOM v. METROMEDIA 83 29 Marshall, J., dissenting in almost any amount. Since there is not even an attempt to offset any palpable loss and since these damages are the direct product of the ancient theory of unlimited jury discretion, the only limit placed on the jury in awarding punitive damages is that the damages not be “excessive,” and in some jurisdictions, that they bear some relationship to the amount of compensatory damages awarded.8 See H. Oleck, Damages to Persons and Property § 275, pp. 557-560 (1955). The manner in which unlimited discretion may be exercised is plainly unpredictable. And fear of the extensive awards that may be given under the doctrine must necessarily produce the impingement on freedom of the press recognized in New York Times. In addition to the huge awards that may be given under the label of punitive or exemplary damages, other doctrines in the law of defamation allow substantial damages without even an offer of evidence that there was actually injury. See Montgomery v. Dennison, 363 Pa. 255, 69 A. 2d 520 (1949); Restatement of Torts §621 (1938). These doctrines create a legal presumption that substantial injuries “normally flow” from defamation. There is no requirement that there be even an offer of proof that there was in fact financial loss, physical or emotional suffering, or that the plaintiff’s standing in the community was diminished. The effect is to give the jury essentially unlimited discretion and thus to give it much the same power it exercises under the labels of punitive or exemplary damages. The impingement upon free speech is the same no matter what label is attached. 8 Most jurisdictions in this country recognize the concept of punitive or exemplary damages. Four States—Illinois, Massachusetts, Nebraska, and Washington—apparently do not recognize the doctrine. In Louisiana and Indiana the doctrine has limited applicability. See H. Oleck, Damages to Persons and Property § 269, p. 541 (1955). 84 OCTOBER TERM, 1970 Marshall, J., dissenting 403 U. S. The unlimited discretion exercised by juries in awarding punitive and presumed damages compounds the problem of self-censorship that necessarily results from the awarding of huge judgments. This discretion allows juries to penalize heavily the unorthodox and the unpopular and exact little from others. Such free wheeling discretion presents obvious and basic threats to society’s interest in freedom of the press. And the utility of the discretion in fostering society’s interest in protecting individuals from defamation is at best vague and uncertain. These awards are not to compensate victims; they are only windfalls. Certainly, the large judgments that can be awarded admonish the particular defendant affected as well as other potential transgressors not to publish defamation. The degree of admonition—the amount of the judgment in relation to the defamer’s means—is not, however, tied to any concept of what is necessary to deter future conduct nor is there even any way to determine that the jury has considered the culpability of the conduct involved in the particular case. Thus the essence of the discretion is unpredictability and uncertainty. The threats to society’s interest in freedom of the press that are involved in punitive and presumed damages can largely be eliminated by restricting the award of damages to proved, actual injuries. The jury’s wide-ranging discretion will largely be eliminated since the award will be based on essentially objective, discernible factors. And the self-censorship that results from the uncertainty created by the discretion as well as the selfcensorship resulting from the fear of large judgments themselves would be reduced. At the same time, society’s interest in protecting individuals from defamation will still be fostered. The victims of the defamation will be compensated for their real injuries. They will not be, however, assuaged far beyond their wounds. And, there ROSENBLOOM v. METROMEDIA 85 29 Marshall, J., dissenting will be a substantial although imprecise and imperfect admonition to avoid future defamation by imposing the requirement that there be compensation for actual damages. My Brother Harlan argues that it is unnecessary to go so far. Although he recognizes the dangers involved in failing “to confine the amount of jury verdicts . . . within any ascertainable limits,” Mr. Justice Harlan suggests that on a finding of actual malice punitive damages may be awarded if they “bear a reasonable and purposeful relationship to the actual harm done.” My Brother Harlan envisions jurors being instructed9 to consider the deterrent function of punitive damages and to try to gear the punitive damages awarded in some undetermined way to actual injury. Apparently, the jury under the supervision of the court would weigh the content of the speech and the surrounding circumstances—inter alia, the position of the plaintiff, the wealth of the defendant, and the nature of the instrument of publication—on the scale of their values and determine what amount is necessary in light of the various interests involved. Since there would be no objective standard by which to measure the jury’s decision there would be no predetermined limit of jury discretion and all of the threats to freedom of the press involved in such discretion would remain. The chant of some new incantation will, of course, provide clear authority for a court to substitute its values for the jury’s and remake the decision. If this is what my Brother 9 “[A] jury instruction is not abracadabra. It is not a magical incantation, the slightest deviation from which will break the spell. Only its poorer examples are formalistic codes recited by a trial judge to please appellate masters. At its best, it is simple, rugged communication from a trial judge to a jury of ordinary people, entitled to be appraised in terms of its net effect.” Time, Inc. v. Hill, 385 U. S. 374, 418 (1967) (Fortas, J., dissenting). 86 OCTOBER TERM, 1970 Marshall, J., dissenting 403 U. S. Harlan envisions, he is merely moving the ad hoc balancing from the question of fault to the question of damages. I believe that the appropriate resolution of the clash of societal values here is to restrict damages to actual losses. See Hill, The Bill of Rights and the Supervisory Power, 69 Col. L. Rev. 181, 191 n. 62 (1969). Of course, damages can be awarded for more than direct pecuniary loss but they must be related to some proved harm. See Wright, Defamation, Privacy, and the Public’s Right to Know: A National Problem and a New Approach, 46 Tex. L. Rev. 630, 648 (1968). If awards are so limited in cases involving private individuals— persons first brought to public attention by the defamation that is the subject of the lawsuit—it will be unnecessary to rely, as both the plurality and to some extent Mr. Justice Harlan do, on somewhat elusive concepts10 11 of the degree of fault, and unnecessary, for constitutional purposes, to engage in ad hoc balancing of the competing interests involved.11 States would be essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State’s need.12 The only constitutional caveat should be that absolute or strict liability, like uncontrolled damages and private 10 See n. 9, supra. 11 Of course, reliance on limiting awards to compensation for actual loss will require some review of the facts of particular cases. But that review will be limited to essentially objectively determinable issues; the contents of the publication will not have to be considered. 12 Leaving States free to impose liability when defamation is found to be the result of negligent conduct, should make it somewhat more likely that a private person will have a meaningful forum in which to vindicate his reputation. If the standard of care is higher, it would seem that publishers will be more likely to assert the defense of truth than simply contend that they did not breach the standard. ROSENBLOOM v. METROMEDIA 87 29 Marshall, J., dissenting fines, cannot be used.13 The effect of imposing liability without fault is to place “the printed, written or spoken word in the same class with the use of explosives or the keeping of dangerous animals.” W. Prosser, The Law of Torts § 108, p. 792 (3d ed. 1964). Clearly, this is inconsistent with the concepts of freedom of the press. Thus in this case I would reverse the judgment of the Court of Appeals for the Third Circuit and remand the case for a determination of whether Mr. Rosenbloom can show any actual loss. 13 Strict liability for defamation was first clearly established in Jones v. E. Hulton & Co., [1909] 2 K. B. 444, aff’d, [1910] A. C. 20. See Smith, Jones v. Hulton: Three Conflicting Judicial Views As to a Question of Defamation, 60 U. Pa. L. Rev. 365 and 461 (1912). The standard has been applied in many jurisdictions in this country. See, e. g., Upton n. Times-Democrat Publishing Co., 104 La. 141, 28 So. 970 (1900); Laudati v. Stea, 44 R. I. 303, 117 A. 422 (1922); Taylor v. Hearst, 107 Cal. 262, 40 P. 392 (1895). See also Restatement of Torts § 582, comment g (1938). Liability without fault has not been applied, however, in Pennsylvania. See Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 8 A. 2d 302 (1939), Pa. Stat. Ann., Tit. 12, § 1583 (1953). 88 OCTOBER TERM, 1970 Syllabus 403 U. S. GRIFFIN et al. v. BRECKENRIDGE et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 144. Argued January 13-14, 1971—Decided June 7, 1971 Petitioners, Negro citizens of Mississippi, filed a damages action under 42 U. S. C. § 1985 (3), charging that respondents, white citizens of Mississippi, conspired to assault petitioners, who were passengers “travelling upon the federal, state, and local highways” in an automobile driven by one Grady, a citizen of Tennessee, for the purpose of preventing them “and other Negro-Americans, through . . . force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi,” including rights to free speech, assembly, association, and movement, and the right not to be enslaved. The complaint alleged that pursuant to the conspiracy respondents, mistakenly believing Grady to be a civil rights worker, blocked the travellers’ passage on the public highways, forced them from the car, held them at bay with firearms, and amidst threats of murder clubbed them, inflicting serious physical injury. Section 1985 (3) provides: “If two or more persons . . . conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do . . . any act in furtherance of the object of such conspiracy, whereby another is injured ... or deprived of . . . any right or privilege of a citizen of the United States, the party so injured or deprived” may have a cause of action for damages against the conspirators. The District Court dismissed the complaint for failure to state a cause of action, relying on Collins v. Hardyman, 341 U. S. 651, where the Court in order to avoid difficult constitutional questions, in effect construed § 1985 (3) to reach only conspiracies under color of state law. The Court of Appeals affirmed. Held: 1. Section 1985 (3) does not require state action but reaches private conspiracies, such as the one alleged in the complaint here, that are aimed at invidiously discriminatory deprivation of the GRIFFIN v. BRECKENRIDGE 89 88 Opinion of the Court equal enjoyment of rights secured to all by law, as is clearly manifested by the wording and legislative history of the statute and companion statutory provisions, and the constitutional impediments that influenced the Court’s construction of the statute in Collins, supra, as is clear from more recent decisions, simply do not exist. Pp. 95-103. 2. Congress had the constitutional authority to reach a private conspiracy of the sort alleged in the complaint in this case both under § 2 of the Thirteenth Amendment and under its power to protect the right of interstate travel. Pp. 104-106. 410 F. 2d 817, reversed and remanded. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Douglas, Harlan (except for Part V-B), Brennan, White, Marshall, and Blackmun, JJ., joined. Harlan, J., filed a concurring statement, post, p. 107. Stephen J. Pollak argued the cause for petitioners. With him on the brief were Gary J. Greenberg and John A. Bleveans. W. D. Moore, by appointment of the Court, 400 U. S. 1006, argued the cause for respondents. With him on the brief was Helen J. McDade. Lawrence G. Wallace argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Griswold and Louis F. Claiborne. Mr. Justice Stewart delivered the opinion of the Court. This litigation began when the petitioners filed a complaint in the United States District Court for the Southern District of Mississippi, seeking compensatory and punitive damages and alleging, in substantial part, as follows: “2. The plaintiffs are Negro citizens of the United States and residents of Kemper County, Mississippi. . . . 90 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. “3. The defendants, Lavon Breckenridge and James Calvin Breckenridge, are white adult citizens of the United States residing in DeKalb, Kemper County, Mississippi. “4. On July 2, 1966, the . . . plaintiffs . . . were passengers in an automobile belonging to and operated by R. G. Grady of Memphis, Tennessee. They were travelling upon the federal, state and local highways in and about DeKalb, Mississippi, performing various errands and visiting friends. “5. On July 2, 1966 defendants, acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes, wilfully and maliciously conspired, planned, and agreed to block the passage of said plaintiffs in said automobile upon the public highways, to stop and detain them and to assault, beat and injure them with deadly weapons. Their purpose was to prevent said plaintiffs and other Negro-Americans, through such force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi, including but not limited to their rights to freedom of speech, movement, association and assembly; their right to petition their government for redress of their grievances; their rights to be secure in their persons and their homes; and their rights not to be enslaved nor deprived of life and liberty other than by due process of law. “6. Pursuant to their conspiracy, defendants drove their truck into the path of Grady’s automobile and blocked its passage over the public road. Both defendants then forced Grady and said plaintiffs to get out of Grady’s automobile and prevented said plaintiffs from escaping while defendant James GRIFFIN v. BRECKENRIDGE 91 88 Opinion of the Court Calvin Breckenridge clubbed Grady with a blackjack, pipe or other kind of club by pointing firearms at said plaintiffs and uttering threats to kill and injure them if defendants’ orders were not obeyed, thereby terrorizing them to the utmost degree and depriving them of their liberty. “7. Pursuant to their conspiracy, defendants wilfully, intentionally, and maliciously menaced and assaulted each of the said plaintiffs by pointing firearms and wielding deadly blackjacks, pipes or other kind of clubs, while uttering threats to kill and injure said plaintiffs, causing them to become stricken with fear of immediate injury and death and to suffer extreme terror, mental anguish and emotional and physical distress. “8. Pursuant to defendants’ conspiracy, defendant James Calvin Breckenridge then wilfully, intentionally and maliciously clubbed each of said plaintiffs on and about the head, severely injuring all of them, while both defendants continued to assault said plaintiffs and prevent their escape by pointing their firearms at them. “12. By their conspiracy and acts pursuant thereto, the defendants have wilfully and maliciously, directly and indirectly, intimidated and prevented the . . . plaintiffs . . . and other Negro-Americans from enjoying and exercising their rights, privileges and immunities as citizens of the United States and the State of Mississippi, including but not limited to, their rights to freedom of speech, movement, association and assembly; the right to petition their government for redress of grievances; their right to be secure in their person; their right not to be enslaved nor deprived of fife, liberty or property other than by due process of law, and their 92 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. rights to travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi . . . .” The jurisdiction of the federal court was invoked under the language of Rev. Stat. § 1980, 42 U. S. C. § 1985 (3), which provides: “If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.” The District Court dismissed the complaint for failure to state a cause of action, relying on the authority of this Court’s opinion in Collins v. Hardyman, 341 U. S. 651, which in effect construed the above language of § 1985 (3) as reaching only conspiracies under color of state law. The Court of Appeals for the Fifth Circuit affirmed the judgment of dismissal. 410 F. 2d 817. Judge Goldberg’s thorough opinion for that court expressed “serious doubts” as to the “continued vitality” of Collins v. Hardyman, id., at 823, and stated that “it would not surprise us if Collins v. Hardyman were disapproved and if § 1985 (3) were held to embrace private conspiracies to interfere with rights of national citizenship,” id., at 825-826 (footnote omitted), but concluded that “[s]ince we GRIFFIN v. BRECKENRIDGE 93 88 Opinion of the Court may not adopt what the Supreme Court has expressly rejected, we obediently abide the mandate in Collins,” id., at 826-827. We granted certiorari, 397 U. S. 1074, to consider questions going to the scope and constitutionality of 42 U. S. C. § 1985 (3). I Collins v. Hardy man was decided 20 years ago. The complaint in that case alleged that the plaintiffs were members of a political club that had scheduled a meeting to adopt a resolution opposing the Marshall Plan, and to send copies of the resolution to appropriate federal officials; that the defendants conspired to deprive the plaintiffs of their rights as citizens of the United States peaceably to assemble and to equal privileges and immunities under the laws of the United States; that, in furtherance of the conspiracy, the defendants proceeded to the meeting site and, by threats and violence, broke up the meeting, thus interfering with the right of the plaintiffs to petition the Government for the redress of grievances; and that the defendants did not interfere or conspire to interfere with the meetings of other political groups with whose opinions the defendants agreed. The Court held that this complaint did not state a cause of action under § 1985 (3):1 “The complaint makes no claim that the conspiracy or the overt acts involved any action by state officials, or that defendants even pretended to act under color of state law. It is not shown that defendants had or claimed any protection or immunity from the law of the State, or that they in fact enjoyed such because of any act or omission by state authorities.” 341 U. S., at 655. “What we have here is not a conspiracy to affect in any way these plaintiffs’ equality of protection by 1The statute was then 8 U. S. C. §47 (3) (1946 ed.). 427-293 0 - 72 - 10 94 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. the law, or their equality of privileges and immunities under the law. There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to obstruct or interfere with it. . . . Such private discrimination is not inequality before the law unless there is some manipulation of the law or its agencies to give sanction or sanctuary for doing so.” Id., at 661. The Court was careful to make clear that it was deciding no constitutional question, but simply construing the language of the statute, or more precisely, determining the applicability of the statute to the facts alleged in the complaint:2 “We say nothing of the power of Congress to authorize such civil actions as respondents have commenced or otherwise to redress such grievances as they assert. We think that Congress has not, in the narrow class of conspiracies defined by this statute, included the conspiracy charged here. We therefore reach no constitutional questions.” Id., at 662. Nonetheless, the Court made equally clear that the construction it gave to the statute was influenced by the constitutional problems that it thought would have otherwise been engendered: “It is apparent that, if this complaint meets the requirements of this Act, it raises constitutional problems of the first magnitude that, in the light of history, are not without difficulty. These would 2 “We do not say that no conspiracy by private individuals could be of such magnitude and effect as to work a deprivation of equal protection of the laws, or of equal privileges and immunities under laws. . . . But here nothing of that sort appears. We have a case of a lawless political brawl, precipitated by a handful of white citizens against other white citizens.” 341 U. S., at 662. GRIFFIN v. BRECKENRIDGE 95 88 Opinion of the Court include issues as to congressional power under and apart from the Fourteenth Amendment, the reserved power of the States, the content of rights derived from national as distinguished from state citizenship, and the question of separability of the Act in its application to those two classes of rights.” Id., at 659. Mr. Justice Burton filed a dissenting opinion, joined by Mr. Justice Black and Mr. Justice Douglas. The dissenters thought that “[t]he language of the statute refutes the suggestion that action under color of state law is a necessary ingredient of the cause of action which it recognizes.” Id., at 663. Further, the dissenters found no constitutional difficulty in according to the statutory words their apparent meaning: “Congress certainly has the power to create a federal cause of action in favor of persons injured by private individuals through the abridgment of federally created constitutional rights. It seems to me that Congress has done just this in [§ 1985 (3)]. This is not inconsistent with the principle underlying the Fourteenth Amendment. That amendment prohibits the respective states from making laws abridging the privileges or immunities of citizens of the United States or denying to any person within the jurisdiction of a state the equal protection of the laws. Cases holding that those clauses are directed only at state action are not authority for the contention that Congress may not pass laws supporting rights which exist apart from the Fourteenth Amendment.” Id., at 664. II Whether or not Collins v. Hardy man was correctly decided on its own facts is a question with which we need not here be concerned. But it is clear, in the light of 96 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. the evolution of decisional law in the years that have passed since that case was decided, that many of the constitutional problems there perceived simply do not exist. Little reason remains, therefore, not to accord to the words of the statute their apparent meaning. That meaning is confirmed by judicial construction of related laws, by the structural setting of § 1985 (3) itself, and by its legislative history. And a fair reading of the allegations of the complaint in this case clearly brings them within this meaning of the statutory language. As so construed, and as applied to this complaint, we have no doubt that the statute was within the constitutional power of Congress to enact. Ill We turn, then, to an examination of the meaning of § 1985 (3). On their face, the words of the statute fully encompass the conduct of private persons. The provision speaks simply of “two or more persons in any State or Territory” who “conspire or go in disguise on the highway or on the premises of another.” Going in disguise, in particular, is in this context an activity so little associated with official action and so commonly connected with private marauders that this clause could almost never be applicable under the artificially restrictive construction of Collins. And since the “going in disguise” aspect must include private action, it is hard to see how the conspiracy aspect, joined by a disjunctive, could be read to require the involvement of state officers. The provision continues, specifying the motivation required “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” This language is, of course, similar to that of § 1 of the Fourteenth Amend- GRIFFIN v. BRECKENRIDGE 97 88 Opinion of the Court ment, which in terms speaks only to the States,3 and judicial thinking about what can constitute an equal protection deprivation has, because of the Amendment’s wording, focused almost entirely upon identifying the requisite “state action” and defining the offending forms of state law and official conduct. A century of Fourteenth Amendment adjudication has, in other words, made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires the action working the deprivation to come from the State. See, e. g., United States v. Harris, 106 U. S. 629, 643. Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1985 (3) of all deprivations of “equal protection of the laws” and “equal privileges and immunities under the laws,” whatever their source. The approach of this Court to other Reconstruction civil rights statutes in the years since Collins has been to “accord [them] a sweep as broad as [their] language.” United States v. Price, 383 U. S. 787, 801; Jones n. Alfred H. Mayer Co., 392 U. S. 409, 437. Moreover, very similar language in closely related statutes has early and late received an interpretation quite inconsistent with that given to § 1985 (3) in Collins. In construing the exact criminal counterpart of § 1985 (3), the Court in United States v. Harris, supra, observed that the statute was “not limited to take effect only in case [of state action],” id., at 639, but “was framed to protect from invasion by private persons, the equal privileges 3 “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 98 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. and immunities under the laws, of all persons and classes of persons,” id., at 637. In United States v. Williams, 341 U. S. 70, the Court considered the closest remaining criminal analogue to § 1985 (3), 18 U. S. C. § 241.4 Mr. Justice Frankfurter’s plurality opinion, without contravention from the concurrence or dissent, concluded that “if language is to carry any meaning at all it must be clear that the principal purpose of [§241], unlike [ 18 U. S. C. § 242], was to reach private action rather than officers of a State acting under its authority. Men who ‘go in disguise upon the public highway, or upon the premises of another’ are not likely to be acting in official capacities.” 341 U. S., at 76. “Nothing in [the] terms [of § 241] indicates that color of State law w’as to be relevant to prosecution under it.” Id., at 78 (footnote omitted). A like construction of § 1985 (3) is reinforced when examination is broadened to take in its companion statutory provisions. There appear to be three possible forms for a state action limitation on § 1985 (3)—that there must be action under color of state law, that there must be interference with or influence upon state authorities, or that there must be a private conspiracy so massive and effective that it supplants those authorities and thus satisfies the state action requirement.5 The Congress 4 “If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or “If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured— “They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.” The penalty section was amended in 1968. See 18 U. S. C. § 241 (1964 ed., Supp. V). 5 This last was suggested in Collins v. Hardyman. See n. 2, supra. GRIFFIN v. BRECKENRIDGE 99 88 Opinion of the Court that passed the Civil Rights Act of 1871, 17 Stat. 13, § 2 of which is the parent of § 1985 (3), dealt with each of these three situations in explicit terms in other parts of the same Act. An element of the cause of action established by the first section, now 42 U. S. C. § 1983, is that the deprivation complained of must have been inflicted under color of state law.6 To read any such requirement into § 1985 (3) would thus deprive that section of all independent effect. As for interference with state officials, § 1985 (3) itself contains another clause dealing explicitly with that situation.7 And § 3 of the 1871 Act provided for military action at the command of the President should massive private lawlessness render state authorities powerless to protect the federal rights of classes of citizens, such a situation being defined by the Act as constituting a state denial of equal protection. 17 Stat. 14. Given the existence of these three provisions, it is almost impossible to believe that Congress intended, in the dissimilar language of the portion of § 1985 (3) now before us, simply to duplicate the coverage of one or more of them. The final area of inquiry into the meaning of § 1985 (3) lies in its legislative history. As originally introduced in the 42d Congress, the section was solely a criminal provision outlawing certain conspiratorial acts done with 6 “Every person who, under color of any statute, ordinance, regulation, 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, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 7 "If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another ... for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws . . . .” 100 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. intent “to do any act in violation of the rights, privileges, or immunities of another person . . . .” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871). Introducing the bill, the House sponsor, Representative Shellabarger, stressed that “the United States always has assumed to enforce, as against the States, and also persons, every one of the provisions of the Constitution.” Id., at App. 69 (emphasis supplied). The enormous sweep of the original language led to pressures for amendment, in the course of which the present civil remedy was added. The explanations of the added language centered entirely on the animus or motivation that would be required, and there was no suggestion whatever that liability would not be imposed for purely private conspiracies. Representative Willard, draftsman of the limiting amendment, said that his version “provid[ed] that the essence of the crime should consist in the intent to deprive a person of the equal protection of the laws and of equal privileges and immunities under the laws; in other words, that the Constitution secured, and was only intended to secure, equality of rights and immunities, and that we could only punish by United States laws a denial of that equality.” Id., at App. 188. Representative Shella-barger’s explanation of the amendment was very similar : “The object of the amendment is ... to confine the authority of this law to the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens’ rights, shall be within the scope of the remedies of this section.” Id., at 478.8 8 The conspiracy and disguise language of what finally became § 1985 (3) appears to have been borrowed from the parent of 18 U. S. C. §241. See Cong. Globe, 41st Cong., 2d Sess., 3611-3613 (1870). GRIFFIN v. BRECKENRIDGE 101 88 Opinion of the Court Other supporters of the bill were even more explicit in their insistence upon coverage of private action. Shortly before the amendment was introduced, Representative Shanks urged, “I do not want to see [this measure] so amended that there shall be taken out of it the frank assertion of the power of the national Government to protect life, liberty, and property, irrespective of the act of the State.” Id., at App. 141. At about the same time, Representative Coburn asked: “Shall we deal with individuals, or with the State as a State? If we can deal with individuals, that is a less radical course, and works less interference with local governments. . . . It would seem more accordant with reason that the easier, more direct, and more certain method of dealing with individual criminals was preferable, and that the more thorough method of superseding State authority should only be resorted to when the deprivation of rights and the condition of outlawry was so general as to prevail in all quarters in defiance of or by permission of the local government.” Id., at 459. After the amendment had been proposed in the House, Senator Pool insisted in support of the bill during Senate debate that “Congress must deal with individuals, not States. It must punish the offender against the rights of the citizen . . . .” Id., at 608. It is thus evident that all indicators—text, companion provisions, and legislative history—point unwaveringly to § 1985 (3)’s coverage of private conspiracies. That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, “that Congress has a right to punish an assault and battery when committed by two or more per 102 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. sons within a State.” Id., at 485. The constitutional shoals that would lie in the path of interpreting § 1985 (3) as a general federal tort law can be avoided by giving full effect to the congressional purpose—by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100. The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.9 The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.10 IV We return to the petitioners’ complaint to determine whether it states a cause of action under § 1985 (3) as so construed. To come within the legislation a complaint must allege that the defendants did (1) “conspire or go in disguise on the highway or on the premises of another” (2) “for the purpose of depriving, either directly 9 We need not decide, given the facts of this case, whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under the portion of § 1985 (3) before us. Cf. Cong. Globe, 42d Cong., 1st Sess., 567 (1871) (remarks of Sen. Edmunds). 10 The motivation requirement introduced by the word “equal” into the portion of § 1985 (3) before us must not be confused with the test of “specific intent to deprive a person of a federal right made definite by decision or other rule of law” articulated by the plurality opinion in Screws v. United States, 325 U. S. 91, 103, for prosecutions under 18 U. S. C. §242. Section 1985 (3), unlike § 242, contains no specific requirement of “wilfulness.” Cf. Monroe v. Pape, 365 U. S. 167, 187. The motivation aspect of § 1985 (3) focuses not on scienter in relation to deprivation of rights but on invidiously discriminatory animus. GRIFFIN v. BRECKENRIDGE 103 88 Opinion of the Court or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” It must then assert that one or more of the conspirators (3) did, or caused to be done, “any act in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.” The complaint fully alleges, with particulars, that the respondents conspired to carry out the assault. It further asserts that “[t]heir purpose was to prevent [the] plaintiffs and other Negro-Americans, through . . . force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi,” including a long list of enumerated rights such as free speech, assembly, association, and movement. The complaint further alleges that the respondents were “acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes.” These allegations clearly support the requisite animus to deprive the petitioners of the equal enjoyment of legal rights because of their race. The claims of detention, threats, and battery amply satisfy the requirement of acts done in furtherance of the conspiracy. Finally, the petitioners—whether or not the nonparty Grady was the main or only target of the conspiracy—allege personal injury resulting from those acts. The complaint, then, states a cause of action under § 1985 (3). Indeed, the conduct here alleged lies so close to the core of the coverage intended by Congress that it is hard to conceive of wholly private conduct that would come within the statute if this does not. We must, accordingly, consider whether Congress had constitutional power to enact a statute that imposes liability under federal law for the conduct alleged in this complaint. 104 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. V The constitutionality of § 1985 (3) might once have appeared to have been settled adversely by United States v. Harris, 106 U. S. 629, and Baldwin v. Franks, 120 U. S. 678, which held unconstitutional its criminal counterpart, then § 5519 of the Revised Statutes.11 The Court in those cases, however, followed a severability rule that required invalidation of an entire statute if any part of it was unconstitutionally overbroad, unless its different parts could be read as wholly independent provisions. E. g., Baldwin v. Franks, supra, at 685. This Court has long since firmly rejected that rule in such cases as United States v. Raines, 362 U. S. 17, 20-24. Consequently, we need not find the language of § 1985 (3) now before us constitutional in all its possible applications in order to uphold its facial constitutionality and its application to the complaint in this case. That § 1985 (3) reaches private conspiracies to deprive others of legal rights can, of itself, cause no doubts of its constitutionality. It has long been settled that 18 U. S. C. § 241, a criminal statute of far broader phrasing (see n. 4, supra), reaches wholly private conspiracies and is constitutional. E. g., In re Quarles, 158 U. S. 532; Logan v. United States, 144 U. S. 263, 293-295; United States v. Waddell, 112 U. S. 76, 77-81; Ex parte Yarbrough, 110 U. S. 651. See generally Twining v. New Jersey, 211 U. S. 78, 97-98. Our inquiry, therefore, need go only to identifying a source of congressional power to reach the private conspiracy alleged by the complaint in this case. A Even as it struck down Rev. Stat. § 5519 in United States v. Harris, the Court indicated that parts of its coverage would, if severable, be constitutional under the 11 Rev. Stat. § 5519 was repealed in 1909. 35 Stat. 1154. GRIFFIN v. BRECKENRIDGE 105 88 Opinion of the Court Thirteenth Amendment. 106 U. S., at 640-641. And surely there has never been any doubt of the power of Congress to impose liability on private persons under § 2 of that amendment, “for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Civil Rights Cases, 109 U. S. 3, 20. See also id., at 23; Clyatt v. United States, 197 U. S. 207, 216, 218; Jones v. Alfred H. Mayer Co., 392 U. S., at 437-440. Not only may Congress impose such liability, but the varieties of private conduct that it may make criminally punishable or civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude. By the Thirteenth Amendment, we committed ourselves as a Nation to the proposition that the former slaves and their descendants should be forever free. To keep that promise, “Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.” Jones v. Alfred H. Mayer Co., supra, at 440. We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men. B Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Shapiro v. Thompson, 394 U. S. 618, 629-631; id., at 642-644 (concurring opinion); United States 106 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. v. Guest, 383 U. S. 745, 757-760 and n. 17; Twining v. New Jersey, 211 U. S. 78, 97; Slaughter-House Cases, 16 Wall. 36, 79-80; Crandall v. Nevada, 6 Wall. 35, 44, 48-49; Passenger Cases, 7 How. 283, 492 (Taney, C. J., dissenting). The “right to pass freely from State to State” has been explicitly recognized as “among the rights and privileges of National citizenship.” Twining v. New Jersey, supra, at 97. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation. E. g., United States v. Guest, supra, at 759; United States v. Classic, 313 U. S. 299, 314^315; Ex parte Yarbrough, 110 U. S. 651; Oregon v. Mitchell, 400 U. S. 112, 285-287 (concurring and dissenting opinion). The complaint in this case alleged that the petitioners “were travelling upon the federal, state and local highways in and about” DeKalb, Kemper County, Mississippi. Kemper County is on the Mississippi-Alabama border. One of the results of the conspiracy, according to the complaint, was to prevent the petitioners and other Negroes from exercising their “rights to travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi.” Finally, the conspiracy was alleged to have been inspired by the respondents’ erroneous belief that Grady, a Tennessean, was a worker for Negro civil rights. Under these allegations it is open to the petitioners to prove at trial that they had been engaging in interstate travel or intended to do so, that their federal right to travel interstate was one of the rights meant to be discriminatorily impaired by the conspiracy, that the conspirators intended to drive out-of-state civil rights workers from the State, or that they meant to deter the petitioners from associating with such persons. This and other evidence could make it clear that the petitioners had suffered from conduct that Congress may reach under its power to protect the right of interstate travel. GRIFFIN v. BRECKENRIDGE 107 88 Harlan, J., concurring c In identifying these two constitutional sources of congressional power, we do not imply the absence of any other. More specifically, the allegations of the complaint in this case have not required consideration of the scope of the power of Congress under § 5 of the Fourteenth Amendment.12 By the same token, since the allegations of the complaint bring this cause of action so close to the constitutionally authorized core of the statute, there has been no occasion here to trace out its constitutionally permissible periphery. The judgment is reversed, and the case is remanded to the United States District Court for the Southern District of Mississippi for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Harlan, concurring. I agree with the Court’s opinion, except that I find it unnecessary to rely on the “right of interstate travel” as a premise for justifying federal jurisdiction under § 1985 (3). With that reservation, I join the opinion and judgment of the Court. 12 See Katzenbach n. Morgan, 384 U. S. 641 ; Oregon v. Mitchell, 400 U. S. 112, 135 (opinion of Douglas, J.), 229 (opinion of Brennan, White, and Marshall, JJ.) ; United States v. Guest, 383 U. S. 745, 761 (Clark, J., concurring), 774 (Brennan, J., concurring and dissenting). 108 OCTOBER TERM, 1970 Syllabus 403 U. S. ELY v. KLAHR et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. 548. Argued March 23, 1971—Decided June 7, 1971 Appellant, in this suit filed in 1964 challenging the constitutionality of Arizona’s state legislative districting laws, attacked the State’s third attempt to enact a valid apportionment plan. The District Court found the plan constitutionally deficient in several respects but because of the proximity of the 1970 elections (which would be the last held before the 1970 census data became available for new plans) and because the court concluded that the main difficulty was the State’s large population increase since the last census, upheld the legislature’s plan as the least unsatisfactory alternative (including appellant’s plan). In its order the court “assume [d] that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment,” but that “[u]pon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief.” Though the 1970 general election was held on the basis of the state law as thus upheld, appellant contends that the District Court should now adopt an apportionment plan which would be displaced only if the legislature adopts a valid plan. Held: The District Court did not err in affording the legislature a reasonable time to enact a constitutionally adequate apportionment plan for the 1972 elections, on the basis of the 1970 census figures which will presumably be available, that court being in the best position to know if the November 1 deadline will be adequate to facilitate its consideration of the legislative plan and to enable it to prepare its own plan if the official version is not constitutional. Pp. 114-115. 313 F. Supp. 148, affirmed. White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Marshall, and Blackmun, JJ., joined. Douglas, J., filed a concurring opinion, in which Black, J., joined, post, p. 116. Harlan, J., filed a statement concurring in the result, post, p. 123. Philip J. Shea argued the cause and filed a brief for appellant. ELY v. KLAHR 109 108 Opinion of the Court John M. McGowan II, Special Assistant Attorney General of Arizona, argued the cause for appellees. With him on the brief was Gary K. Nelson, Attorney General. Mr. Justice White delivered the opinion of the Court. This appeal is the latest step in the long and fitful attempt to devise a constitutionally valid reapportionment scheme for the State of Arizona. For the reasons given, we affirm the judgment of the District Court. In April 1964, shortly before this Court’s decision in Reynolds v. Sims, 377 U. S. 533 (1964), and in its companion cases, suit was filed in the District Court for the District of Arizona attacking the then-existing state districting laws as unconstitutional.1 Following those decisions, the three-judge District Court ordered all proceedings stayed “until the expiration of a period of 30 days next following adjournment of the next session” of the Arizona Legislature. (App. 2-3, unreported.) Nearly a year later, on May 18, 1965, after the legislature had failed to act, the court again deferred trial pending a special legislative session called by the Governor to deal with the necessity of reapportionment. The special session enacted Senate Bill 11, which among other things provided one senator for a county of 7,700 and another for a county of 55,000. The session did not undertake to reapportion the House. Trial was had in November 1965 and on February 2, 1966, the court enjoined enforcement of Senate Bill 11, which, it held, “bears evidence of having been thrown together as a result of considerations wholly apart from those laid down as compulsory by the 1 Throughout this litigation, congressional districting has been at issue as well and has suffered the same fate as reapportionment of the legislature. However, appeal has been taken here only with respect to the lower court’s decree concerning legislative reapportionment. 427-293 0 - 72 - 11 110 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. decisions of the Supreme Court.” Klahr v. Goddard, 250 F. Supp. 537, 541 (Ariz. 1966). The plan, said the court, was “shot through with invidious discrimination.” Id., at 546. The court also held that the existing House plan produced disparities of nearly four to one, which was clearly impermissible under our decisions. Noting that the legislature “has had ample opportunity” to produce a valid reapportionment plan, the court formulated its own plan as a “temporary and provisional reapportionment,” designed to govern the impending preparation for the 1966 elections. The plan was to be in effect “for the 1966 primary and general elections and for such further elections as may follow until such time as the Legislature itself may adopt different and valid plans for districting and reapportionment.” 2 Id., at 543. It retained jurisdiction, as it has done since. Some 16 months later, in June 1967, the Arizona Legislature enacted “Chapter 1, 28th Legislature,” which again attempted reapportionment of the State. Within the month, suit was filed charging that this Act also was unconstitutional, but the court deferred action pending the outcome of a referendum3 scheduled with the November 1968 election for the legislature and Congress. It ordered those elections to be held in accordance with its own 1966 plan, as supplemented. Klahr v. Williams, 289 F. Supp. 829 (Ariz. 1967). The legislative plan was approved by the voters in the referendum and signed into law by the Governor on January 17, 1969. A hearing on the plan was commenced the same day. The court concluded on July 22, 1969, that the plan, which 2 The court issued two supplemental decrees in 1966 which modified and clarified the original order. 254 F. Supp. 997, 289 F. Supp. 827. 3 Apparently under Arizona law, a referendum is required before a bill can become law where, as here, sufficient signatures against the bill are filed with the Secretary of State. See Klahr v. Williams, 289 F. Supp. 829 (Ariz. 1967). ELY v. KLAHR 111 108 Opinion of the Court set up “election districts” based on population and “legislative” subdistricts based on voter registration, would allow deviations among the legislative subdistricts of up to 40% from ideal until 1971, and up to 16% thereafter. The court properly concluded that this plan was invalid under Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969), since the legislature had operated on the notion that a 16% deviation was de minimis and consequently made no effort to achieve greater equality. The court ordered its 1966 plan continued once again “until the Legislature shall have adopted different, valid, and effective plans for redistricting and reapportionment . . . .” (App. 85, unreported.) It refused to order the 1970 elections to be held at large, since there was “ample time” for the legislature “to meet its obligation” before the machinery for conducting the 1970 elections would be engaged. The legislature attempted a third time to enact a valid plan. It passed “Chapter 1, House Bill No. 1, 29th Legislature,” which was signed into law by the Governor on January 22, 1970, and which is the plan involved in the decision from which this appeal is taken. Appellant challenged the bill, alleging that it “substantially disenfranchises, unreasonably and unnecessarily, a large number of the citizens of the state,” App. 106, and “creates legislative districts that are grossly unequal.” App. 108. Appellant at that time submitted his own plan for the court’s consideration. Appellant’s primary dispute with the new plan was that it substantially misconceived the current population distribution in Arizona. The court agreed that appellant’s plan, which utilized 1968 projections of 1960 and 1965 Arizona censuses, could “very likely [result in] a valid reapportionment plan” but it declined to implement the plan, since it was based on census tracts, rather than the existing precinct boundaries, and “the necessary reconstruction of the election 112 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. precincts could not be accomplished in time” to serve the 1970 election, whose preliminary preparations were to begin in a few weeks. Klahr v. Williams, 313 F. Supp. 148, 150 (Ariz. 1970). At the same time, the court observed that its 1966 plan had fallen behind contemporary constitutional requirements, due to more recent voter registration data (which increased the deviation between high and low districts to 47.09%) and the intervening decisions of this Court in Kirkpatrick and Wells, supra, and Burns v. Richardson, 384 U. S. 73 (1966). Turning to the legislature’s plan, the court found it wanting in several respects. First, though the result indicated population deviation between high and low districts of only 1.8%, the population formula used4 did not “truly represent the population within [the] precincts in either 1960 or 1968,” and thus “the figures produced . . . are not truly population figures.” 313 F. Supp., at 152. Second, the computer that devised the plan had been programmed to assure that the plan would not require any incumbent legislator to face any other incumbent for re-election. Third, the programming gave priority to one-party districts over districts drawn without regard to party strength. The court held that “the incumbency factor has no place in any reapportionment or redistricting” 5 and found “inapposite” the 4 “The population factor in each of the election precincts comprising part of a legislative district was obtained by instructing the computer to take the 1968 voter registration for the precinct and divide it by the 1968 voter registration for the county in which the precinct was located, thereby obtaining the percentage of registered voters of the county residing within the precinct. The computer was then directed to multiply that percentage figure by the 1960 census for the county in which the precinct was located, thereby obtaining the population factor for the precinct.” 313 F. Supp., at 151-152. 5 Though we noted in Burns v. Richardson, 384 U. S. 73, 89 n. 16, that “[t]he fact that district boundaries may have been ELY v. KLAHR 113 108 Opinion of the Court “consideration of party strength as a factor . . . .” Ibid. The court was thus faced with a situation where both its 1966 plan and the legislature’s latest attempt fell short of the constitutional standard. At that time, however, the 1970 elections were “close at hand.” The court concluded that another legislative effort was “out of the question” due to the time and felt that it could not itself devise a new plan without delaying primary elections, “a course which would involve serious risk of confusion and chaos.” Ibid. It considered at-large elections, but the prospect of electing 90 legislators at large was deemed so repugnant as to be justified only if the legislature’s actions had been “deliberate and inexcusable”; the court instead believed that the large population increase in Arizona since the last reliable census in 1960 was more to blame. Concluding that the 1970 elections would be the last to be held before the 1970 census data became available for new plans, the court chose what it considered the lesser of two evils and ordered the elections to be conducted under the legislature’s plan. In its order to this effect, the court noted that it “assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment,” but that “[u]pon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief.” Id., at 154. The state officials did not seek review of the District Court’s judgment declaring Chapter 1 unconstitutional. Appellant, however, appealed to this Court. His notice of appeal was filed on June 18, 1970, his jurisdictional statement on August 17, 1970. The latter presented the single question whether it was error for the United States drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness,” it is sufficient to note here that the District Court did not base its decision solely on this factor. 114 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. District Court to refuse to enjoin the enforcement of the Arizona Legislature’s most recent effort to reapportion the State. Appellees’ motion to dismiss or affirm was filed on November 24. We noted probable jurisdiction on December 21, 400 U. S. 963. Meanwhile, the 1970 elections were held in accordance with the District Court’s decree. Appellees suggest that the issue presented is moot and appellant concedes “the 1970 general election has already been held so that that aspect of the wrong cannot be remedied.” Brief 8. But appellant now argues that however that may be, the District Court should now proceed to adopt a plan of reapportionment which would be displaced only upon the adoption of a valid plan by the legislature. Appellant doubts that postponing judicial action until after November 1 will give the District Court sufficient time, prior to June 1972, when the election process must begin in Arizona, to consider the legislative plan and to prepare its own plan if the legislative effort does not comply with the Constitution. The feared result is that another election under an unconstitutional plan would be held in Arizona. Reapportionment history in the State lends some substance to these fears, but as we have often noted, districting and apportionment are legislative tasks in the first instance,6 and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 1971. We agree with appellant that the District Court should make very sure that the 1972 elec- 6E. g., Reynolds n. Sims, 377 U. S. 533, 586 (1964): “[L]egislative reapportionment is primarily a matter for legislative consideration and determination, and . . . judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.” ELY v. KLAHR 115 108 Opinion of the Court tions are held under a constitutionally adequate apportionment plan. But the District Court knows better than we whether the November 1 deadline will afford it ample opportunity to assess the legality of a new apportionment statute if one is forthcoming and to prepare its own plan by June 1, 1972, if the official version proves insufficient. The 1970 census figures, if not now available, will be forthcoming soon; and appellant, if he is so inclined, can begin to assemble the necessary information and witnesses and himself prepare and have ready for submission what he deems to be an adequate apportionment plan. Surely, had a satisfactory substitute for Chapter 1, held unconstitutional by the District Court, been prepared and ready the court would have ordered the 1970 elections held under that plan rather than the invalid legislative scheme. And surely if appellant has ready for court use on November 1, 1971, a suitable alternative for an unacceptable legislative effort, or at least makes sure that the essential information is on hand, there is no justifiable ground for thinking the District Court could not, prior to June 1, 1972, complete its hearings and consideration of a new apportionment statute and, if that is rejected, adopt a plan of its own for use in the 1972 elections. Nor do we read the District Court decree as forbidding appellant from petitioning for reopening of the case prior to November 1, 1971, and presenting to the District Court the problem which it has now raised here but which we prefer at this juncture to leave in the hands of the District Court.7 The judgment is affirmed. It is so ordered. 7 Appellant has contended here that the use of voter registration figures, rather than actual population, to determine district size operates to the detriment of the poor, blacks, Mexican-Americans, and American Indians. In light of our disposition of this case, we need only advert to our admonition in Burns n. Richardson, supra, 116 OCTOBER TERM, 1970 Douglas, J., concurring 403 U. S. Mr. Justice Douglas, with whom Mr. Justice Black joins, concurring. The complaint in this case was filed on April 27, 1964. The District Court stayed all proceedings on June 25, 1964, until after the next regular session of the legislature and, when nothing was achieved, stayed them again until after a special session. A reapportionment plan produced by that legislature was held unconstitutional. 250 F. Supp. 537. Thereupon the District Court drew a “temporary and provisional” plan for the general elections of 1966 and 1968. See 254 F. Supp. 997; 289 F. Supp. 827; 303 F. Supp. 224. In 1967 the legislature produced another plan which was approved by the voters and became effective January 17, 1969. This plan was also declared unconstitutional by the District Court on July 22, 1969. The legislature then adopted a new plan effective January 22, 1970. The District Court allowed this plan to be used for the 1970 general election, although it considered the plan to be unconstitutional. The District Court in its decree provided: “The court, having been advised that detailed population figures for the State of Arizona will be available from the official 1970 census by the summer of 1971, assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment for both houses of the Arizona Legislature and a valid plan of redistricting the con that use of voter registration as a basis may “perpetuate underrepresentation of groups constitutionally entitled to participate in the electoral process,” 384 U. S., at 92, and is allowable only if it produces “a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.” Id., at 93. We presume, of course, that any plan submitted, and certainly any plan approved by the District Court, will be faithful to this requirement. ELY v. KLAHR 117 108 Douglas, J., concurring gressional districts of Arizona. Upon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief.” The District Court also retained jurisdiction of the cause. 313 F. Supp. 148. Since Reynolds v. Sims, 377 U. S. 533, Arizona has not had a constitutionally valid apportionment plan. Members of the Arizona Legislature who were elected in the 1970 election were elected under a plan the District Court held unconstitutional. Under that plan a computer was instructed to redistrict the State and to accomplish, in order, the following objectives: (1) to make the districts as equal in population as possible; (2) to circumscribe the districts in such a way that each included one incumbent senator and two incumbent representatives; (3) to make the districts compact; and (4) to make districts politically homogeneous. Even assuming the legislative districts were of equal population the plan would have several practical deficiencies as far as minority representation goes. The 1970 plan insured that no incumbent would be running against another incumbent, as often may happen under a reapportionment plan. Thus the opportunity for preserving the status quo was assisted. An effort to make each district politically homogeneous compounded this problem. The record provides a new definition of gerrymandering. A gerrymandered district in Arizona is not one where a “natural” majority finds its power erased by either moving lines to increase the numbers of the opposition in the district or by moving the lines so that a majority is dispersed. In Arizona a gerrymandered district came to be one that is overwhelmingly either Republican or Democratic. Thus when the second and fourth factors are combined an incumbent had not only the natural benefits of incum- 118 OCTOBER TERM, 1970 Douglas, J., concurring 403 U. S. bency, but also the benefits (where possible) of a one-party district, his own fiefdom. The record reveals that the 1970 plan heavily favored incumbents even if we assumed equal population districts. Such an assumption, of course, is contrary to the facts; deviations in Arizona ranged from about 24% above the median to about 52% below the median. The basic unit for a district was the local political precinct. Unfortunately, there were no population figures for the basic unit, thus making it difficult to build the districts. Such figures were created by programming the computer to assume that a precinct population was that part of the 1960 county population which the number of registered voters in the precinct in 1968 bore to the number of registered voters in the county in 1968. If all segments of society were equally likely to register to vote, then the Arizona method of computing population would be unobjectionable. But all members of a community are not equally likely to register. For example, only two counties out of eight with Spanish surname populations in excess of 15% showed a voter registration equal to the statewide average.1 Not only are the poor, the blacks, the Chicanos, and the Indians less likely to register in the first place, they are also likely to have a higher rate of illiteracy among their members. Arizona law at the time of the decision below required a literacy test for voter registration. Ariz. Rev. Stat. Ann. §§ 16-101 (A)(4), 16-101 (A)(5). Naturally this compounded the problem of underregistration of minority groups.1 2 1 Hearings on S. 818, S. 2456, S. 2507, and Title IV of S. 2029 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 406 (1969-1970). 2 Because of the Voting Rights Act Amendments of 1970, literacy tests will not be a factor in future elections. Section 201, 84 Stat. 315, bars a State from denying the right to vote in any federal, ELY v. KLAHR 119 108 Douglas, J., concurring While the present record lacks some basic statistics, we do know that in 1965 the Bureau of the Census determined that less than 50% of the residents of voting age were registered or voted in the 1964 presidential election in Apache County, Navajo County, and Coconino County. ' 30 Fed. Reg. 9897, 14505. Under § 4 (a) of the Voting Rights Act of 1965, 79 Stat. 438, the application of the literacy tests was suspended by the publication of the statistics in the Federal Register, but the suspension was lifted a year later on the showing that the literacy tests had not been used in a discriminatory manner. Apache County v. United States, 256 F. Supp. 903. As of last fall Yuma County was subject to the literacy test ban of the Voting Rights Act of 1965. See Oregon v. Mitchell, 400 U. S. 112, 131 n. 12. The 1970 plan adversely affected minorities. Because of the registration statistics used, one district in the Phoenix ghetto had approximately 70,000 residents while an affluent all-white district in another area of Phoenix had only 27,000 residents. The Indian reservation area in northeastern Arizona fared little better. While it had sufficient numbers of Indians to justify a separate district which could undoubtedly elect Indian representatives in the state legislature, the Indians were done in. At the time of this suit there were no Indians elected to either the State House or Senate. But just to the south of the area two state senators lived 10 miles apart. Hence, the incumbency rule was invoked to split the Indian area so as to accommodate the two white senators. The Arizona Legislature has yet to develop a reapportionment plan which can pass constitutional muster. The incumbents who now have the opportunity to draft state, or local election because of “any test or device” which is defined, inter alia, to include literacy. This part of the Act was upheld in Oregon v. Mitchell, 400 U. S. 112. 120 OCTOBER TERM, 1970 Douglas, J., concurring 403U.S. the plan come from districts which are malapportioned and overrepresent the white vote. A valid apportionment plan will seemingly mean the defeat of several incumbents. The new efforts to gerrymander the State for the members of the current legislature will doubtless be prodigious. Members of the 1970 legislature had the twin advantages of running as single incumbents and in politically homogeneous districts. Members of minority groups had the disadvantage of underrepresentation. That invidious discrimination still exists. On oral argument it was said that there is no point in initiating the design of a reapportionment plan now because the 1970 census figures are not available. That argument is difficult to comprehend, for it appears3 that in March 1971 New Jersey completed a comprehensive reapportionment plan based on the 1970 census. The District Court has shown great patience and has been persevering. It probably is the first to realize that the Gordian knot must be cut if there is to be a plan that satisfies constitutional requirements. It has indicated it will wait until November 1, 1971, before it initiates a constitutional plan. The hearings on such a plan will doubtless be long drawn out and extensive. The prize is great, for if the present incumbents can prolong matters, the 1972 election may come and go with the existing invalid 1970 plan in effect. It is not difficult to imagine how easy that strategy might be. The 1972 primaries in Arizona are in September.4 Primaries apart, there is always the problem of review by this Court. We are plagued with election cases coming here on the eve of elections, with the remaining 3 N. Y. Times, March. 24, 1971, p. 47. 4 The primary election in Arizona in 1972 will be held on Sept. 13. See Ariz. Rev. Stat. Ann. § 16-702. ELY v. KLAHR 121 108 Douglas, J., concurring time so short we do not have the days needed for oral argument and for reflection on the serious problems that are usually presented. If an election case is filed in our summer recess, we will not consider it until the first week in October; and our effort to note the appeal, hear the case, and decide it before November without disrupting the state election machinery is virtually impossible. The time needed is lacking.5 5 Williams v. Rhodes, 393 U. S. 23, was an exceptional case. There Mr. Justice Stewart acting as Circuit Justice and in consultation with available members of this Court granted injunctive relief ordering the election ballots printed in such a way as to include the American Independent Party, the losing party in the District Court. This was to insure that, if it prevailed here, relief would be available. 21 L. Ed. 2d 69, 89 S. Ct. 1. An expedited briefing schedule was authorized and we heard oral argument as soon as the Term commenced. Eight days later our opinion was handed down modifying the judgment of the District Court. Had not Mr. Justice Stewart granted the injunction in September the appellants’ victory would have been a hollow one. A challenge to Colorado’s durational residency requirement prior to the 1968 election did not fare as well. The District Court upheld the requirement and we heard oral argument after the election was over. The case was dismissed as moot. Hall n. Beals, 396 U. S. 45. Durational residency requirements have come before the Court several times this Term. In Hayes v. Lieutenant Governor of Hawaii, there was a challenge to the Hawaii durational residency requirement for candidates. The Hawaii Supreme Court upheld the law in late August. An application for an injunction was denied. When the appeal finally came up for consideration on the merits, again after the election, it was dismissed as moot, 401 U. S. 968. In Sirak v. Brown a state durational residency requirement for voters was upheld and, when this Court denied an injunction, 400 U. S. 809, the plaintiff chose not to docket his appeal, probably on the basis of Hall v. Beals, supra. A similar issue was present in Fitzpatrick v. Board of Election Comm’rs of Chicago, where we denied a motion to expedite the appeal, 401 U. S. 905. Had all the lower courts followed Drueding v. Devlin, 234 F. Supp. 721 (Md. 1964), aff’d, 380 U. S. 125, then mootness might have prevented any plenary review of the issue. But several district courts have con- 122 OCTOBER TERM, 1970 Douglas, J., concurring 403 U. S. If a case is to be heard and decided on these important issues it must be here by February so that we can work it into our spring calendar of argued cases and decide it before July. If the District Court waits until November to hold hearings and put a reapportionment plan in operation, it is unlikely that any such schedule can be met. It is, therefore, essential that the judicial machinery be put into motion soon, so that a resolution of a matter eluded that subsequent decisions have undermined Drueding and thus have invalidated durational residency requirements. This avoids the mootness issue and we have noted probable jurisdiction in one such case, Ellington v. Blumstein, 401 U. S. 934. In Beller n. Kirk there was a challenge to the Florida requirement demanding an independent candidate obtain 5% of the registered voters to sign a petition so that he could get on the ballot. Injunctive relief was denied by individual Justices early in October, but the case has subsequently been docketed sub nom. Beller v. Askew, No. 1360. We have heard oral argument on the same issue in Jenness v. Fortson, No. 5714. The Ohio laws are involved in several cases pending this Term. In one, the District Court handed down its decision late in July 1970. By that decision several sections of the Ohio laws were invalidated and we noted probable jurisdiction. Gilligan v. Sweeten-ham, 401 U. S. 991. A loyalty oath was upheld and we noted probable jurisdiction in that case. Socialist Labor Party v. Gilligan, 401 U. S. 991. The court also upheld a provision requiring independent candidates to file at the same time as major party candidates. Sweetenham v. Gilligan, No. 790. A similar issue is also presented in Pratt v. Begley, No. 1044, where the District Court for the Eastern District of Kentucky made its ruling in early October. The then-forthcoming Chicago election in April 1971 also presented cases where one of the parties needed immediate action. In Jack-son v. Ogilvie, the issue was the requirement that an independent obtain 5% of the registered voters on a nominating petition. We denied a stay on February 22, 1971, 401 U. S. 904, and there was no way the case could be heard prior to the election. Through all these cases Williams v. Rhodes stands out as exceptional, because both the necessary preargument injunctive relief and expedited oral argument were obtained. ELY v. KLAHR 123 108 Harlan, J., concurring in result that has defied solution for seven years be no longer delayed. I write these words not in criticism of the District Court but in support of its steadfast efforts to bring this stubborn litigation to an early end. Mr. Justice Harlan concurs in the result upon the premises set forth in his separate opinions in Whitcomb v. Chavis, post, p. 165; Oregon v. Mitchell, 400 U. S. 112, 152 (1970); and Reynolds v. Sims, 377 U. S. 533, 589 (1964). 124 OCTOBER TERM, 1970 Syllabus 403 U. S. WHITCOMB, GOVERNOR OF INDIANA v. CHAVIS ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA No. 92. Argued December 8, 1970—Decided June 7, 1971 This suit was brought by residents of Marion and Lake Counties, Indiana, challenging state statutes establishing Marion County as a multi-member district for the election of state senators and representatives. It was alleged, first, that the laws invidiously diluted the votes of Negroes and poor persons living in the “ghetto area” of Marion County, and, second, that voters in multi-member districts were overrepresented since the true test of voting power is the ability to cast a tie-breaking vote, and the voters in multimember districts had a greater theoretical opportunity to cast such votes than voters in single-member districts. The tendency of multi-member district legislators to vote as a bloc was alleged to compound this discrimination. The three-judge court, though not ruling squarely on the second claim, determined that a racial minority group with specific legislative interests inhabited a ghetto area in Indianapolis, in Marion County; that the statutes operated to minimize and cancel out the voting strength of this minority group; and that redistricting Marion County alone would leave impermissible variations between Marion districts and others in the State, thus requiring statewide redistricting, which could not await 1970 census figures. The court held the statutes unconstitutional, and gave the State until October 1, 1969, to enact reapportionment legislation. No such legislation ensued, and the court drafted a plan using single-member districts throughout the State. The 1970 elections were ordered to be held in accordance with the new plan. This Court granted a stay of judgment pending final action on the appeal, thus permitting the 1970 elections to be held under the condemned statutes. Under those statutes, based on the 1960 census, there was a maximum variance in population of senate districts of 28.20%, with a ratio between the largest and smallest districts of 1.327 to 1, and a maximum variance in house districts of 24.78%, with a ratio of 1.279 to 1. Held: The judgment is reversed and the case remanded. Pp. 140-170; 179-180. 305 F. Supp. 1364, reversed and remanded. WHITCOMB v. CHAVIS 125 124 Syllabus Mr. Justice White delivered the opinion of the Court with respect to Parts I-VI, finding that: 1. Although, as the Court was advised on June 1, 1971, the Indiana legislature enacted new apportionment legislation providing for statewide single-member house and senate districts, the case is not moot. Pp. 140-141. 2. The validity of multi-member districts is justiciable, but a challenger has the burden of proving that such districts unconstitutionally operate to dilute or cancel the voting strength of racial or political groups. Pp. 141-144. 3. The actual, as distinguished from theoretical, impact of multimember districts on individual voting power has not been sufficiently demonstrated on this record to warrant departure from prior cases involving multi-member districts, and neither the findings below nor the record sustains the view that multi-member districts overrepresent their voters as compared with voters in singlemember districts, even if the multi-member legislative delegation tends to bloc voting. Pp. 144—148. 4. Appellees’ claim that the fact that the number of ghetto residents who were legislators was not proportionate to ghetto population proves invidious discrimination, notwithstanding the absence of evidence that ghetto residents had less opportunity to participate in the political process, is not valid, and on this record the malproportion was due to the ghetto voters’ choices losing the election contests. Pp. 148-155. 5. The trial court’s conclusion that, with respect to their unique interests, ghetto residents were invidiously underrepresented due to lack of their own legislative voice, was not supported by the findings. Moreover, even assuming bloc voting by the county delegation contrary to the ghetto majority’s wishes, there is no constitutional violation, since that situation inheres in the political process, whether the district be single- or multi-member. P. 155. 6. Multi-member districts have not been proved inherently invidious or violative of equal protection, but, even assuming their unconstitutionality, it is not clear that the remedy is a singlemember system with lines drawn to ensure representation to all sizable racial, ethnic, economic, or religious groups. Pp. 156-160. 7. The District Court erred in brushing aside the entire state apportionment policy without solid constitutional and equitable 427-293 0 - 72 - 12 126 OCTOBER TERM, 1970 Syllabus 403 U. S. grounds for doing so, and without considering more limited alternatives. Pp. 160-161. Mr. Justice White, joined by The Chief Justice, Mr. Justice Black, and Mr. Justice Blackmun, concluded, in Part VII, that it was not improper for the District Court to order statewide redistricting on the basis of the excessive population variances between the legislative districts shown by this record. That court ordered reapportionment not because of population shifts since its 1965 decision upholding the statutory plan but because the disparities had been shown to be excessive by intervening decisions of this Court. Pp. 161-163. Mr. Justice Douglas, joined by Mr. Justice Brennan and Mr. Justice Marshall, concluded, with respect to redistricting the entire State, that there were impermissible population variances between districts under the current apportionment plan, and that the new Marion County districts would also have impermissible variances, thus requiring statewide redistricting. Pp. 179-180. White, J., announced the Court’s judgment and delivered an opinion, of the Court with respect to Parts I-VI, in which Burger, C. J., and Black, Stewart, and Blackmun, JJ., joined, and in which, as to Part VII, Burger, C. J., and Black and Blackmun, JJ., joined. Stewart, J., filed a statement joining in Parts I-VI and dissenting from Part VII, post, p. 163. Harlan, J., filed a separate opinion, post, p. 165. Douglas, J., filed an opinion dissenting in part and concurring in the result in part, in which Brennan and Marshall, JJ., joined, post, p. 171. William F. Thompson, Assistant Attorney General of Indiana, argued the cause for appellant. With him on the briefs were Theodore L. Sendak, Attorney General, and Richard C. Johnson, Chief Deputy Attorney General. James Manahan argued the cause for appellees. With him on the brief were James Beatty and John Banzhaj III. William J. Scott, Attorney General, and Francis C. Crowe and Herman Tavins, Assistant Attorneys General, filed a brief for the State of Illinois as amicus curiae WHITCOMB v. CHAVIS 127 124 Opinion of the Court urging reversal, joined by the following Attorneys General: MacDonald Gallion of Alabama, G. Kent Edwards of Alaska, Gary K. Nelson of Arizona, Duke W. Dunbar of Colorado, Richard C. Turner of Iowa, A. F. Summer of Mississippi, Robert L. Woodahi of Montana, Gordon Mydland of South Dakota, Crawford C. Martin of Texas, Vernon B. Romney of Utah, and Chauncey H. Browning of West Virginia. Charles Morgan, Jr., Reber F. Boult, Jr., David J. Vann, and Melvin L. Wulf filed a brief for the ACLU Foundation, Inc., et al. as amici curiae urging affirmance. Mr. Justice White delivered the opinion of the Court with respect to the validity of the multi-member election district in Marion County, Indiana (Parts I-VI), together with an opinion (Part VII), in which The Chief Justice, Mr. Justice Black, and Mr. Justice Black-mun joined, on the propriety of ordering redistricting of the entire State of Indiana, and announced the judgment of the Court. We have before us in this case the validity under the Equal Protection Clause of the statutes districting and apportioning the State of Indiana for its general assembly elections. The principal issue centers on those provisions constituting Marion County, which includes the city of Indianapolis, a multi-member district for electing state senators and representatives. I Indiana has a bicameral general assembly consisting of a house of representatives of 100 members and a senate of 50 members. Eight of the 31 senatorial districts and 25 of the 39 house districts are multi-member districts, that is, districts that are represented by two or more 128 OCTOBER TERM, 1970 Opinion of the Court 403U.S. legislators elected at large by the voters of the district.1 Under the statutes here challenged, Marion County is a multi-member district electing eight senators and 15 members of the house. On January 9, 1969, six residents of Indiana, five of whom were residents of Marion County, filed a suit described by them as “attacking the constitutionality of two statutes of the State of Indiana which provide for multi-member districting at large of General Assembly seats in Marion County, Indiana . ...” 1 2 Plaintiffs3 Chavis, Ramsey, and Bryant alleged that the two statutes invidiously diluted the force and effect of the vote of 1 As later indicated, shortly before announcement of this opinion, the Court was informed that the statutes at issue here will soon be superseded by new apportionment legislation recently adopted by the Indiana Legislature and signed by the Governor. That legislation provides for single-member districts throughout the State including Marion County. For the reasons stated below the controversy is not moot, and, as will be evident, this opinion proceeds as though the state statutes before us remain undisturbed by new legislation. 2 The provisions attacked, contained in Acts 1965 (2d Spec. Sess.), c. 5, § 3, and c. 4, § 3, and appearing in Ind. Ann. Stat. §§ 34-102 and 34-104 (1969) were as follows: “34-102. Apportionment of representatives.—Representatives shall be elected from districts comprised of one [1] or more counties and having one [1] or more representatives, as follows: . . . Twenty-sixth District Marion County: fifteen [15] representatives . . . .” “34-104. Apportionment of senators.—Senators shall be elected from districts, comprised of one or more counties and having one or more senators, as follows: . . . Nineteenth District—Marion County: eight [8] senators, two [2] to be elected in 1966.” The District Court denied plaintiffs’ motion to have the suit declared a class action under Fed. Rule Civ. Proc. 23 (b). 305 F. Supp. 1359, 1363 (SD Ind. 1969). See n. 17, infra. 3 Plaintiffs in the trial court are appellees here and defendant Whitcomb is the appellant. We shall refer to the parties in this opinion as they stood in the trial court. WHITCOMB v. CHAVIS 129 124 Opinion of the Court Negroes and poor persons living within certain Marion County census tracts constituting what was termed “the ghetto area.” Residents of the area were alleged to have particular demographic characteristics rendering them cognizable as a minority interest group with distinctive interests in specific areas of the substantive law. With single-member districting, it was said, the ghetto area would elect three members of the house and one senator, whereas under the present districting voters in the area “have almost no political force or control over legislators because the effect of their vote is cancelled out by other contrary interest groups” in Marion County. The mechanism of political party organization and the influence of party chairmen in nominating candidates were additional factors alleged to frustrate the exercise of power by residents of the ghetto area. Plaintiff Walker, a Negro resident of Lake County, also a multi-member district but a smaller one, alleged an invidious discrimination against Lake County Negroes because Marion County Negroes, although no greater in number than Lake County Negroes, had the opportunity to influence the election of more legislators than Lake County Negroes.4 The claim was that Marion County was one-third larger in population and thus had approximately one-third more assembly seats than Lake County, but that voter influence does not vary inversely with population and that permitting Marion County voters to elect 23 assemblymen at large gave them a disproportionate advantage over voters in Lake County.5 The 4 Walker also alleged that “in both Lake and Marion County, Indiana there are a sufficient number of negro [sic] voters and inhabitants for a bloc vote by the said inhabitants to change the result of any election recently held.” 5 The mathematical basis for the assertion was set out in detail in the complaint. See also n. 23, infra. It was also alleged that “[b]oth Marion County . . . and Lake County . . . are the sole matter 130 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. two remaining plaintiffs presented claims not at issue here.* 6 A three-judge court convened and tried the case on June 17 and 18, 1969. Both documentary evidence and oral testimony were taken concerning the composition and characteristics of the alleged ghetto area, the manner in which legislative candidates were chosen and their residence and tenure, and the performance of Marion County’s delegation in the Indiana general assembly.7 for consideration before two separate state legislative committees, one directed to the affairs of each county. The laws enacted . . . which directly effect [sic] Marion or Lake County typically apply to only one county or the other.” App. 15. 6 Plaintiff Marilyn Hotz, a Republican and a resident of what she described as the white suburban belt of Marion County lying outside the city of Indianapolis, alleged that malapportionment of precincts in party organization together with multi-member districting invidiously diluted her vote. Plaintiff Rowland Allan (spelled “Allen” in the District Court’s opinion), an independent voter, alleged that multi-member districting deprived him of any chance to make meaningful judgments on the merits of individual candidates because he was confronted with a list of 23 candidates of each party. 7 In their final arguments and proposed findings of fact and conclusions of law plaintiffs urged that the Center Township ghetto was largely inhabited by Negroes who had distinctive interests and whose bloc voting potential was canceled out by opposing interest groups in the at-large elections held in Marion County’s multi-member district, that the few Negro legislators, including the three then serving the general assembly from Marion County, were chosen by white voters and were unrepresentative of ghetto Negroes, and that Negroes should be given the power and opportunity to choose their own assemblymen. It was also urged that the power of political as well as racial elements was canceled out in that in every assembly election since 1922, one party or the other had won all the seats with two minor exceptions; hence many voters, in numbers large enough and geographically so located as to command control over one or more general assembly seats if Marion County were WHITCOMB v. CHAVIS 131 124 Opinion of the Court The three-judge court filed its opinion containing its findings and conclusions on July 28, 1969, holding for plaintiffs. Chavis v. Whitcomb, 305 F. Supp. 1364 (SD Ind. 1969). See also 305 F. Supp. 1359 (1969) (pre-trial orders) and 307 F. Supp. 1362 (1969) (statewide reapportionment plan and implementing order). In sum, it concluded that Marion County’s multi-member district must be disestablished and, because of population disparities not directly related to the phenomena alleged in the complaint, the entire State must be redistricted. More particularly, it first determined that a racial minority group inhabited an identifiable ghetto area in Indianapolis.* 8 That area, located in the northern half of Center Township and termed the “Center Township ghetto,” comprised 28 contiguous census tracts and parts of four others.9 The area contained a 1967 population subdistricted, were wholly without representation whichever way an assembly election turned out. The defendants argued that Marion County’s problems were countywide and that its delegation could better represent the various interests in the county if elected at large and responsible to the county as a whole rather than being elected in single-member districts and thus fragmented by parochial interests and jealousies. They also urged that the 1960 census figures were an unreliable basis for redistricting Marion County and opposed the court’s suggestion that the apportionment of the whole State was an issue properly before the court on the pleadings and the evidence. 8 A ghetto was defined as a residential area with a higher density of population and greater proportion of substandard housing than in the overall metropolitan area and inhabited primarily by racial or other minority groups with lower than average socioeconomic status and whose residence in the area is often the result of a social, legal, or economic restriction or custom. 305 F. Supp., at 1373. 9 The court’s ghetto area was not congruent with that alleged in the complaint. It included five census tracts and parts of four others not within the ghetto area alleged in the complaint, but it omitted census tract 220 which the complaint had included. 305 F. Supp., at 1379-1381. That district, which was contiguous to both 132 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. of 97,000 nonwhites, over 99% of whom were Negro, and 35,000 whites. The court proceeded to compare six of these tracts, representative of the area, with tract 211, a predominantly white, relatively wealthy suburban census tract in Washington Township contiguous to the northwest corner of the court’s ghetto area and with tract 220, also in Washington Township, a contiguous tract inhabited by middle class Negroes. Strong differences were found in terms of housing conditions, income and educational levels, rates of unemployment, juvenile crime, and welfare assistance. The contrasting characteristics between the court’s ghetto area and its inhabitants on the one hand and tracts 211 and 220 on the other indicated the ghetto’s “compelling interests in such legislative areas as urban renewal and rehabilitation, health care, employment training and opportunities, welfare, and relief of the poor, law enforcement, quality of education, and anti-discrimination measures.” 305 F. Supp., at 1380. These interests were in addition to those the ghetto shared with the rest of the county, such as metropolitan transportation, flood control, sewage disposal, and education. The court then turned to evidence showing the residences of Marion County’s representatives and senators tract 211 and the ghetto area, was inhabited primarily by Negroes but was found to be a middle class district differing substantially in critical elements from the remainder of the ghetto. The court also made it unmistakably clear that its ghetto area “does not represent the entire ghettoized portion of Center Township but only the portion which is predominantly inhabited by Negroes and which was alleged in the complaint.” 305 F. Supp., at 1380-1381. Although census tract 563, a tract “randomly selected to typify tracts . . . within the predominantly white ghetto portion of Center Township,” id., at 1374, was shown to have characteristics very similar to the tracts in the court’s ghetto area except for the race of its inhabitants, the size and configuration of the white ghetto area were not revealed by the findings. WHITCOMB v. CHAVIS 133 124 Opinion of the Court in each of the five general assemblies elected during the period 1960 through 1968.10 Excluding tract 220, the middle class Negro district, Washington Township, the relatively wealthy suburban area in which tract 211 was located, with an average of 13.98% of Marion County’s population, was the residence of 47.52% of its senators and 34.33% of its representatives. The court’s Center Township ghetto area, with 17.8% of the population, had 4.75% of the senators and 5.97% of the representatives. The nonghetto area of Center Township, with 23.32% of the population, had done little better. Also, tract 220 alone, the middle class Negro district, had only 0.66% of the county’s population but had been the residence of more representatives than had the ghetto area. The ghetto area had been represented in the senate only once—in 1964 by one senator—and the house three times—with one representative in 1962 and 1964 and by two representatives in the 1968 general assembly. The court found the ‘‘Negro Center Township Ghetto population” to be sufficiently large to elect two representatives and one senator if the ghetto tracts “were specific singlemember legislative districts” in Marion County. 305 F. Supp., at 1385. From these data the court found gross inequity of representation, as determined by residence of legislators, between Washington Township and tract 220 on the one hand and Center Township and the Center Township ghetto area on the other. The court also characterized Marion County’s general assembly delegation as tending to coalesce and take common positions on proposed legislation. This was “largely the result of election at large from a common constituency, and obviates representation of a substantial, though minority, interest group within that common 10 See Appendix to opinion, post, p. 164. 134 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. constituency.” Ibid. Related findings were that, as a rule, a candidate could not be elected in Marion County unless his party carried the election;11 county political organizations had substantial influence on the selection and election of assembly candidates (an influence that would be diminished by single-member districting), as well as upon the actions of the county’s delegation in the assembly; and that at-large elections made it difficult for the conscientious voter to make a rational selection. The court’s conclusions of law on the merits may be summarized as follows: 1. There exists within Marion County an identifiable racial element, “the Negro residents of the Center Township Ghetto,” with special interests in various areas of 11A striking but typical example of the importance of party affiliation and the “winner take all” effect is shown by the 1964 House of Representatives election. Democrats Votes Republicans Votes Neff .................... 151,822 Cox..................... 144,336 Bridwell................. 151,756 Hadley.................. 144,235 Murphy................... 151,746 Baker................... 144,032 Dean .................... 151,702 Burke................... 143,989 Creedon ................. 151,573 Borst .................. 143,972 Jones ................... 151,481 Madinger................ 143,918 DeWitt................... 151,449 Clark .................. 143,853 Logan.................... 151,360 Bosma .................. 143,810 Roland................... 151,343 Brown .................. 143,744 Walton................... 151,282 Durnil ................. 143,588 Huber.................... 151,268 Gallagher............... 143,553 Costello ................ 151,153 Cope.................... 143,475 Fruits................... 151,079 Elder .................. 143,436 Lloyd ................... 150,862 Zerfas.................. 143,413 Ricketts ................ 150,797 Allen .................. 143,369 Though nearly 300,000 Marion County voters cast nearly 4% million votes for the House, the high and low candidates within each party varied by only about a thousand votes. And, as these figures show, the Republicans lost every seat though they received 48.69% of the vote. Plaintiffs’ Exhibit 10. WHITCOMB v. CHAVIS 135 124 Opinion of the Court substantive law, diverging significantly from interests of nonresidents of the ghetto.12 2. The voting strength of this racial group has been minimized by Marion County’s multi-member senate and house district because of the strong control exercised by political parties over the selection of candidates, the inability of the Negro voters to assure themselves the opportunity to vote for prospective legislators of their choice and the absence of any particular legislators who were accountable for their legislative record to Negro voters. 3. Party control of nominations, the inability of voters to know the candidate and the responsibility of legislators to their party and the county at large make it difficult for any legislator to diverge from the majority of his delegation and to be an effective representative of minority ghetto interests. 4. Although each legislator in Marion County is arguably responsible to all the voters, including those in the ghetto, “[p]artial responsiveness of all legislators is [not] . . . equal [to] total responsiveness and the informed concern of a few specific legislators.” 13 12 “The first requirement implicit in Fortson v. Dorsey and Burns v. Richardson, that of an identifiable racial or political element within the multi-member district, is met by the Negro residents of the Center Township Ghetto. These Negro residents have interests in areas of substantive law such as housing regulations, sanitation, welfare programs (aid to families with dependent children, medical care, etc.), garnishment statutes, and unemployment compensation, among others, which diverge significantly from the interests of nonresidents of the Ghetto.” 305 F. Supp., at 1386. 13 Ibid. The District Court implicitly, if not expressly, rejected the testimony of defendants’ witnesses, including a professor of political science, to the effect that Marion County’s problems and all its voters would be better served by a delegation sitting and voting as a team and responsible to the district at large, than by a delegation elected from single-member districts and split into groups representing special interests. 136 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. 5. The apportionment statutes of Indiana as they relate to Marion County operate to minimize and cancel out the voting strength of a minority racial group, namely Negroes residing in the Center Township ghetto, and to deprive them of the equal protection of the laws. 6. As a legislative district, Marion County is large as compared with the total number of legislators, it is not subdistricted to insure distribution of the legislators over the county and comprises a multi-member district for both the house and the senate. (See Burns v. Richardson, 384 U. S. 73, 88 (1966).) 7. To redistrict Marion County alone would leave impermissible variations between Marion County districts and other districts in the State. Statewide redistricting was required, and it could not await the 1970 census figures estimated to be available within a year. 8. It may not be possible for the Indiana general assembly to comply with the state constitutional requirement prohibiting crossing or dividing counties for senatorial apportionment14 and still meet the requirements of the Equal Protection Clause adumbrated in recent cases.15 9. Plaintiff Walker’s claim as a Negro voter resident of Lake County that he was discriminated against because Lake County Negroes could vote for only 16 assemblymen while Marion County Negroes could vote for 23 was deemed untenable. In his second capacity, as a general voter in Lake County, Walker “probably has received less effective representation” than Marion County voters because “he votes for fewer legislators and, therefore, has fewer legislators to speak for him,” and, since 14 Article 4, § 6, of the Indiana Constitution provides: “A Senatorial or Representative district, where more than one county shall constitute a district, shall be composed of contiguous counties; and no county, for Senatorial apportionment, shall ever be divided.” (Emphasis added.) 15 See part VII, infra. WHITCOMB v. CHAVIS 137 124 Opinion of the Court in theory voting power in multi-member districts does not vary inversely to the number of voters, Marion County voters had greater opportunity to cast tie-breaking or “critical” votes. But the court declined to hold that the latter ground had been proved, absent more evidence concerning Lake County.16 In this respect consideration of Walker’s claim was limited to that to be given the uniform districting principle in reapportioning the Indiana general assembly.17 Turning to the proper remedy, the court found redistricting of Marion County essential. Also, although recognizing the complaint was directed only to Marion County, the court thought it must act on the evidence indicating that the entire State required reapportionment.18 Judgment was withheld in all respects, however, to give the State until October 1, 1969, to enact legisla 16 “In his second status, we find that plaintiff Walker is a voter of Indiana who resides outside Marion County. Applying the uniform district principle, discussed infra in the remedy section, we find that he probably has received less effective representation than Marion County voters. It has been shown that he votes for fewer legislators and, therefore, has fewer legislators to speak for him. He also, theoretically, casts fewer critical votes than Marion County voters, but we decline to so hold in the absence of sufficient evidence as to other factors such as bloc and party, voting in Lake County. We hold that, in the absence of stronger evidence of dilution, his remedy is limited to the consideration which should be given to the uniform district principle in any subsequent reapportionment of the Indiana General Assembly.” 305 F. Supp., at 1390. 17 The court found a failure of proof on behalf of plaintiff Hotz, a resident of the white suburban belt, and on behalf of plaintiff Allan, an independent voter. Two other plaintiffs were entitled to no relief, plaintiff Chavis because he resided outside the Center Township ghetto and plaintiff Ramsey because he failed to show that he was a resident of that area. Only plaintiff Bryant, in addition to the qualified recognition given Walker, was found to have standing to sue and to be entitled to the relief prayed for. 18 See part VII, infra. 138 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. tion remedying the improper districting and malapportionment found to exist by the court.19 In so doing the court thought the State “might wish to give consideration to certain principles of legislative apportionment brought out at the trial in these proceedings.” Id., at 1391. First, the court eschewed any indication that Negroes living in the ghetto were entitled to any certain number of legislators—districts should be drawn with an eye that is color blind, and sophisticated gerrymandering would not be countenanced. Second, the legislature was advised to keep in mind the theoretical advantage inhering in voters in multi-member districts, that is, their theoretical opportunity to cast more deciding votes in any legislative election. Referring to the testimony that bloc-voting, multi-member delegations have disproportionately more power than single-member districts, the court thought that “the testimony has application here.” Also, “as each member of the bloc delegation is responsible to the voter majority who elected the whole, each Marion County voter has a greater voice in the legislature, having more legislators to speak for him than does a comparable voter” in a single-member district. Single-member districts, the court thought, would equalize voting power among the districts as well as avoiding diluting political or racial groups located in multi-member districts. The court therefore recommended that the general assembly give consideration to the uniform district principle in making its apportionment.20 19 The Governor appealed here following this opinion. Since at that time no judgment had been entered and no injunction had been granted or denied, we do not have jurisdiction of that appeal and it is therefore dismissed. Gunn v. University Committee, 399 U. S. 383 (1970). 20 The trial court’s discussion of this subject may be found in 305 F. Supp., at 1391-1392. WHITCOMB v. CHAVIS 139 124 Opinion of the Court On October 15, the court judicially noticed that the Indiana general assembly had not been called to redistrict and reapportion the State. Following further hearings and examination of various plans submitted by the parties, the court drafted and adopted a plan based on the 1960 census figures. With respect to Marion County, the court followed plaintiffs’ suggested scheme, which was said to protect “the legally cognizable racial minority group against dilution of its voting strength.” 307 F. Supp. 1362, 1365 (SD Ind. 1969). Singlemember districts were employed throughout the State, county lines were crossed where necessary, judicial notice was taken of the location of the nonwhite population in establishing district lines in metropolitan areas of the State and the court’s plan expressly aimed at giving “recognition to the cognizable racial minority group whose grievance lead [sic] to this litigation.” Id., at 1366. The court enjoined state officials from conducting any elections under the existing apportionment statutes and ordered that the 1970 elections be held in accordance with the plan prepared by the court. Jurisdiction was retained to pass upon any future claims of unconstitutionality with respect to any future legislative apportionments adopted by the State.21 21 The court also provided for the possibility that the legislature would fail to redistrict in time for the 1972 elections: “The Indiana constitutional provision for staggering the terms of senators, so that one-half of the Senate terms expire every two years, is entirely proper and valid and would be mandatory in a legislatively devised redistricting plan. “However, the plan adopted herein is provisional in nature and probably will be applicable for only the 1970 election and the subsequent 2-year period. This is true since the 1970 census will have been completed in the interim, and the legislature can very well redistrict itself prior to the 1972 election. On the other hand, it is conceivable that the legislature may fail to redistrict before 140 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Appeal was taken following the final judgment by the three-judge court, we noted probable jurisdiction, 397 U. S. 984 (1970), and the State’s motion for stay of judgment was granted pending our final action on this case, 396 U. S. 1055 (1970), thus permitting the 1970 elections to be held under the existing apportionment statutes declared unconstitutional by the District Court. On June 1, 1971, we were advised by the parties that the Indiana Legislature had passed, and the Governor had signed, new apportionment legislation soon to become effective for the 1972 elections and that the new legislation provides for single-member house and senate districts throughout the State, including Marion County. II With the 1970 elections long past and the appearance of new legislation abolishing multi-member districts in Indiana, the issue of mootness emerges. Neither party deems the case mooted by recent events. Appellees, plaintiffs below, urge that if the appeal is dismissed as moot and the judgment of the District Court is vacated, as is our practice in such cases, there would be no outstanding judgment invalidating the Marion County multi-member district and that the new apportionment legislation would be in conflict with the state constitutional provision forbidding the division of Marion County for the purpose of electing senators. If the new senatorial districts were invalidated in the state courts in this respect, it is argued that the issue involved in the present litigation would simply reappear for decision. the 1972 elections. In such event, all fifty senatorial seats shall be up for election every two years until such time as the legislature properly redistricts itself. It will then properly be the province of the legislature in redistricting to determine which senatorial districts shall elect senators to 4-year terms and which shall elect senators to 2-year terms to reinstate the staggering of terms.” 307 F. Supp., at 1367. WHITCOMB v. CHAVIS 141 124 Opinion of the Court The attorney general for the State of Indiana, for the appellant, taking a somewhat different tack, urges that the issue of the Marion County multi-member district is not moot since the District Court has retained jurisdiction to pass on the legality of subsequent apportionment statutes for the purpose, among others, of determining whether the alleged discrimination against a cognizable minority group has been remedied, an issue that would not arise if the District Court erred in invalidating multi-member districts in Indiana. We agree that the case is not moot and that the central issues before us must be decided. We do not, however, pass upon the details of the plan adopted by the District Court, since that plan in any event would have required revision in light of the 1970 census figures. Ill The line of cases from Gray v. Sanders, 372 U. S. 368 (1963), and Reynolds v. Sims, 377 U. S. 533 (1964), to Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969), recognizes that “representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies.” Reynolds v. Sims, 377 U. S., at 565. Since most citizens find it possible to participate only as qualified voters in electing their representatives, “[f]ull and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.” Ibid. Hence, apportionment schemes “which give the same number of representatives to unequal numbers of constituents,” 377 U. S., at 563, unconstitutionally dilute the value of the votes in the larger districts. And hence the requirement that “the seats in both houses of a bicameral state legis- 427-293 0 - 72 -13 142 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. lature must be apportioned on a population basis.” 377 U. S., at 568. The question of the constitutional validity of multimember districts has been pressed in this Court since the first of the modern reapportionment cases. These questions have focused not on population-based apportionment but on the quality of representation afforded by the multi-member district as compared with single-member districts. In Lucas v. Colorado General Assembly, 377 U. S. 713 (1964), decided with Reynolds v. Sims, we noted certain undesirable features of the multi-member district but expressly withheld any intimation “that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political subdivision, are constitutionally defective.” 377 U. S., at 731 n. 21. Subsequently, when the validity of the multimember district, as such, was squarely presented, we held that such a district is not per se illegal under the Equal Protection Clause. Fortson v. Dorsey, 379 U. S. 433 (1965); Burns v. Richardson, 384 U. S. 73 (1966); Kilgarlin N. Hill, 386 U. S. 120 (1967). See also Burnette v. Davis, 382 U. S. 42 (1965); Harrison n. Schaefer, 383 U. S. 269 (1966).22 That voters in multi-member 22 In Fortson, the Court reversed a three-judge District Court which found a violation of the Equal Protection Clause in that voters in single-member districts were allowed to “select their own senator” but that voters in multi-member districts were not. The statutory scheme in Fortson provided for subdistricting within the county, so that each subdistrict was the residence of exactly one senator. However, each senator was elected by the county at large. The Court said, “Each [sub] district’s senator must be a resident of that [sub] district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home [sub]district; thus in fact he is the county’s and not merely the [sub] district’s senator.” 379 U. S., at 438. The question of whether the scheme “operate [d] to minimize or cancel out the voting WHITCOMB v. CHAVIS 143 124 Opinion of the Court districts vote for and are represented by more legislators than voters in single-member districts has so far not demonstrated an invidious discrimination against the latter. But we have deemed the validity of multi-member district systems justiciable, recognizing also that they may be subject to challenge where the circumstances of a particular case may “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson, 379 U. S., at 439, and Burns, 384 U. S., at 88. Such a tendency, we have said, is enhanced when the district is large and elects a substantial proportion of the seats in either house of a bicameral legislature, if it is multi-member for both strength of racial or political elements of the voting population” was not presented. In Burnette, we summarily affirmed a three-judge District Court ruling, Mann n. Davis, 245 F. Supp. 241 (ED Va. 1965), which upheld a multi-member district consisting of the city of Richmond, Va., and suburban Henrico County over the objections of both urban Negroes and suburban whites. Since the urban Negroes did not appeal here, the affirmance is of no weight as to them, but as to the suburbanites it represents an adherence to Fortson. Similarly, Harrison summarily affirmed a District Court reapportionment plan, Schaefer N. Thomson, 251 F. Supp. 450 (Wyo. 1965), where multi-member districts in Wyoming were held necessary to keep county splitting at a minimum. Burns vacated a three-judge court decree which required singlemember districts except in extraordinary circumstances. The Court in Burns noted that “the demonstration that a particular multimember scheme effects an invidious result must appear from evidence in the record.” 384 U. S., at 88. In Kilgarlin, the Court affirmed, per curiam, a district court ruling “insofar as it held that appellants had not proved their allegations that [the Texas House of Representatives reapportionment plan] was a racial or political gerrymander violating the Fourteenth Amendment, that it unconstitutionally deprived Negroes of their franchise and that because of its utilization of single-member, multimember and floterial districts it was an unconstitutional ‘crazy quilt.’ ” 386 U. S., at 121. 144 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. houses of the legislature or if it lacks provision for at-large candidates running from particular geographical subdistricts, as in Fortson. Burns, 384 U. S., at 88. But we have insisted that the challenger carry the burden of proving that multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements. We have not yet sustained such an attack. IV Plaintiffs level two quite distinct challenges to the Marion County district. The first charge is that any multi-member district bestows on its voters several unconstitutional advantages over voters in single-member districts or smaller multi-member districts. The other allegation is that the Marion County district, on the record of this case, illegally minimizes and cancels out the voting power of a cognizable racial minority in Marion County. The District Court sustained the latter claim and considered the former sufficiently persuasive to be a substantial factor in prescribing uniform, single-member districts as the basic scheme of the court’s own plan. See 307 F. Supp., at 1366. In asserting discrimination against voters outside Marion County, plaintiffs recognize that Fortson, Burns, and Kilgarlin proceeded on the assumption that the dilution of voting power suffered by a voter who is placed in a district 10 times the population of another is cured by allocating 10 legislators to the larger district instead of the one assigned to the smaller district. Plaintiffs challenge this assumption at both the voter and legislator level. They demonstrate mathematically that in theory voting power does not vary inversely with the size of the district and that to increase legislative seats in proportion to increased population gives undue voting power to the voter in the multi-member district since he has more chances to determine election outcomes than WHITCOMB v. CHAVIS 145 124 Opinion of the Court does the voter in the single-member district. This consequence obtains wholly aside from the quality or effectiveness of representation later furnished by the successful candidates. The District Court did not quarrel with plaintiffs’ mathematics, nor do we. But like the District Court we note that the position remains a theoretical one23 and, as plaintiffs’ witness conceded, knowingly 23 The mathematical backbone of this theory is as follows: In a population of n voters, where each voter has a choice between two alternatives (candidates), there are 2n possible voting combinations. For example, with a population of three voters, A, B, and C, and two candidates, X and Y, there are eight combinations: ABC #1. X X X #2. X X Y #3. X Y X #4. X Y Y #5. Y X X #6. Y X Y #7. Y Y X #8. Y Y Y The theory hypothesizes that the true test of voting power is the ability to cast a tie-breaking, or “critical” vote.. In the population of three voters as shown above, any voter can cast a critical vote in four situations; in the other four situations, the vote is not critical since it cannot change the outcome of the election: For example, C can cast a tie-breaking vote only in situations 3, 4, 5, and 6. The number of combinations in which a voter can (n—1)! cast a tie-breaking vote is 2 • ---------------, where n is n—1 n—1 -----!-------I 2 2 the number of voters. Dividing this result (critical votes) by 2n (possible combinations), one arrives at that fraction of possible combinations in which a voter can cast a critical vote. This is the theory’s measure of voting power. In District K with three voters, the fraction is or 50%. In District L with nine voters, the fraction is 14%i2, or 28%. Conventional wisdom would give District K one representative and District L three. But under the 146 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. avoids and does “not take into account any political or other factors which might affect the actual voting power of the residents, which might include party affiliation, race, previous voting characteristics or any other factors which go into the entire political voting situation.” * 24 The real-life impact of multi-member districts on individual voting power has not been sufficiently demonstrated, at least on this record, to warrant departure from prior cases. The District Court was more impressed with the other branch of the claim that multi-member districts inherently discriminate against other districts. This was the assertion that whatever the individual voting power of Marion County voters in choosing legislators may be, they nevertheless have more effective representation in the Indiana general assembly for two reasons. First, each voter is represented by more legislators and therefore, in theory at least, has more chances to influence critical legislative votes. Second, since multi-member delegations are elected at large and represent the voters of the entire district, they tend to vote as a bloc, which is tantamount to the district having one representative with several votes.25 The District Court did not squarely theory, a voter in District L is not % as powerful as the voter in District K, but more than half as powerful. District L deserves only two representatives, and by giving it three the State causes voters therein to be overrepresented. For a fuller explanation of this theory, see Banzhaf, Multi-Member Electoral Districts—Do They Violate the “One Man, One Vote” Principle, 75 Yale L. J. 1309 (1966). 24 Tr. 39. Plaintiffs’ brief in this Court recognizes the issue: “The obvious question which the foregoing presentation gives rise to is that of whether the fact that a voter in a large multi-member district has a greater mathematical chance to cast a crucial vote has any practical significance.” Brief of Appellees (Plaintiffs) 14. 25 Cf. Banzhaf, Weighted Voting Doesn’t Work: A Mathematical Analysis, 19 Rutgers L. Rev. 317 (1965). WHITCOMB v. CHAVIS 147 124 Opinion of the Court sustain this position,but it appears to have found it sufficiently persuasive to have suggested uniform districting to the Indiana Legislature and to have eliminated multi-member districts in the court’s own plan redistricting the State. See 307 F. Supp., at 1368-1383. We are not ready, however, to agree that multi-member districts, wherever they exist, overrepresent their voters as compared with voters in single-member districts, even if the multi-member delegation tends to bloc voting. The theory that plural representation itself unduly enhances a district’s power and the influence of its voters remains to be demonstrated in practice and in the day-to-day operation of the legislature. Neither the findings of the trial court nor the record before us sustains it, even where bloc voting is posited. In fashioning relief, the three-judge court appeared to embrace the idea that each member of a bloc-voting delegation has more influence than legislators from a singlemember district. But its findings of fact fail to deal with the actual influence of Marion County’s delegation in the Indiana Legislature. Nor did plaintiffs’ evidence make such a showing. That bloc voting tended to occur is sustained by the record, and defendants’ own witness thought it was advantageous for Marion County’s delegation to stick together. But nothing demonstrates that senators and representatives from Marion County counted for more in the legislature than members from singlemember districts or from smaller multi-member districts. Nor is there anything in the court’s findings indicating that what might be true of Marion County is also true of other multi-member districts in Indiana or is true of * 26 It is apparent that the District Court declined to rule as a matter of law that a multi-member district was per se illegal as giving an invidious advantage to multi-member district voters over voters in single-member districts or smaller multi-member districts. See 305 F. Supp., at 1391-1392. 148 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. multi-member districts generally. Moreover, Marion County would have no less advantage, if advantage there is, if it elected from individual districts and the elected representatives demonstrated the same bloc-voting tendency, which may also develop among legislators representing single-member districts widely scattered throughout the State.27 Of course it is advantageous to start with more than one vote for a bill. But nothing before us shows or suggests that any legislative skirmish affecting the State of Indiana or Marion County in particular would have come out differently had Marion County been subdistricted and its delegation elected from singlemember districts. Rather than squarely finding unacceptable discrimination against out-state voters in favor of Marion County voters, the trial court struck down Marion County’s multi-member district because it found the scheme worked invidiously against a specific segment of the county’s voters as compared with others. The court identified an area of the city as a ghetto, found it predominantly inhabited by poor Negroes with distinctive substantive-law interests and thought this group unconstitutionally underrepresented because the proportion of legislators with residences in the ghetto elected from 1960 to 1968 was less than the ghetto’s proportion of the population, less than the proportion of legislators elected from Washington Township, a less populous district, and less than the ghetto would likely have elected had the 27 The so-called urban-rural division has been much talked about. Antagonistic bloc voting by the two camps may occur but it has perhaps been overemphasized. See White & Thomas, Urban and Rural Representation and State Legislative Apportionment, 17 W. Pol. Q. 724 (1964). Legislation dealing with uniquely urban problems may be routinely approved when urban delegations are in agreement but encounter insuperable difficulties when the delegations are split internally. , See Kovach, Some Lessons of Reapportionment, 37 Reporter 26, 31 (Sept. 21, 1967). WHITCOMB v. CHAVIS 149 124 Opinion of the Court county consisted of single-member districts.28 We find major deficiencies in this approach. First, it needs no emphasis here that the Civil War Amendments were designed to protect the civil rights of Negroes and that the courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination. There has been no hesitation in striking down those contrivances that can fairly be said to infringe on Fourteenth Amendment rights. Sims v. Baggett, 247 F. Supp. 96 (MD Ala. 1965); Smith v. Paris, 257 F. Supp. 901 (MD Ala. 1966), aff’d, 386 F. 2d 979 (CA5 1967); and see Gomillion v. Lightfoot, 364 U. S. 339 (1960). See also Allen v. State Board of Elections, 393 U. S. 544 (1969). But there is no suggestion here that Marion County’s multi-member district, or similar districts throughout the State, were conceived or operated as purposeful devices to further racial or economic discrimination. As plaintiffs concede, “there was no basis for asserting that the legislative districts in Indiana were designed to dilute the vote of minorities.” Brief of Appellees (Plaintiffs) 28-29. Accordingly, the circumstances here lie outside the reach of decisions such as Sims v. Baggett, supra. Nor does the fact that the number of ghetto residents who were legislators was not in proportion to ghetto population satisfactorily prove invidious discrimination absent evidence and findings that ghetto residents had less opportunity than did other Marion County residents to participate in the political processes and to elect legislators of their choice. We have discovered nothing in the record or in the court’s findings indicating that poor Negroes were not allowed to register or vote, to choose the political party they desired to support, to participate in its affairs or to be equally represented on those occasions when legislative candidates were chosen. Nor did 28 See Appendix to opinion, post, p. 164. 150 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. the evidence purport to show or the court find that inhabitants of the ghetto were regularly excluded from the slates of both major parties, thus denying them the chance of occupying legislative seats.29 It appears reasonably clear that the Republican Party won four of the five elections from 1960 to 1968, that Center Township ghetto voted heavily Democratic and that ghetto votes were critical to Democratic Party success. Although we cannot be sure of the facts since the court ignored the question, it seems unlikely that the Democratic Party could afford to overlook the ghetto in slating its candidates.30 Clearly, in 1964—the one election that the 29 It does not appear that the Marion County multi-member district always operated to exclude Negroes or the poor from the legislature. In the five general assemblies from 1960-1968, the county’s Center Township ghetto had one senator and four representatives. The remainder of the township, which includes a white ghetto, elected one senator and eight representatives. Census tract 220, inhabited predominantly by Negroes but having different economic and social characteristics according to the trial court, elected one senator and five representatives. Ibid. Plaintiffs’ evidence indicated that Marion County as a whole elected two Negro senators and seven representatives in those years. Plantiffs’ Exhibit 10. 30 Plaintiffs’ Exhibit 10 purported to list the names and race of both parties’ general assembly candidates from 1920 through 1968. For the 1960-1968 period which concerned the District Court, the exhibit purported to show that the Democratic Party slated one Negro representative in 1960; one in 1962; one senator and two representatives in 1964; three representatives in 1966; and one senator and two representatives in 1968. The Republican Party slated one Negro senator in 1960; two representatives in 1966; and three representatives in 1968. The racial designations on the exhibit, however, were excluded as hearsay. The Brief of Appellees (Plaintiffs), at 23 n. 7, indicates that in the 1970 elections: “[O]ne of the major political parties in Marion County held district ‘mini-slating conventions’ for purposes of determining its legislative candidates. All of the slated candidates were subsequently nominated in the primary. Black candidates filed in the slating WHITCOMB v. CHAVIS 151 124 Opinion of the Court Democrats won— the party slated and elected one senator and one representative from Center Township ghetto as well as one senator and four representatives from other conventions in six of the fifteen Marion County ‘districts’ including the five that contain parts of the ghetto area. Only two black candidates were slated and nominated including one in the district that contains only a very small part of the ghetto area where the black candidate overwhelmingly defeated the white candidate in a head-on race notwithstanding a very substantial white voting majority. In a district that was almost entirely ghetto a white candidate won almost all of the vote in a head-on race against a black candidate who campaigned primarily on the basis of skincolor. All five of the candidates in the ‘ghetto districts,’ however, avowed a substantial commitment to the substantive interests of black people and the poor.” The record shows that plaintiff Chavis was slated by the Democratic Party and elected to the state senate in 1964. Exhibit 10. Also, plaintiffs Ramsey and Bryant were both slated by the same party as candidates for the House of Representatives in 1968 but were defeated in the general election. Ibid.; see also Tr. 131 (Ramsey), Tr. 133 (Bryant). One of plaintiffs’ witnesses, an attorney and political figure in the Republican Party, testified as follows: “Q. In your experience, Mrs. Allen, aren’t tickets put together by party organization to appeal [to] the various interest groups throughout Marion County? “A. Yes. “Q. Among these interest groups are economic groups, racial groups and others? “A. Yes. “Q. I show you exhibit 5B that is in evidence, showing the location of the elected Republican representatives’ homes at the time they filed in the party primary, does it to you somehow reflect an interest in making an appeal to each conceivable faction in the family, in the county area, each geographical interest? “A. Yes, it does, if I can explain. “Q. Yes, you may. “A. Back in 1966, as I stated, we had a real primary fight and at the time we selected our candidates in the primary Republican Action Committee was not real, real strong in some geographical areas, and we felt that necessary to come up with a 15 man slate, 152 OCTOBER TERM, 1970 Opinion of the Court 403U.S. parts of Center Township and two representatives from census tract 220, which was within the ghetto area described by plaintiff.* 31 Nor is there any indication that the party failed to slate candidates satisfactory to the ghetto in other years. Absent evidence or findings we are not sure, but it seems reasonable to infer that had the Democrats won all of the elections or even most of them, the ghetto would have had no justifiable complaints about representation. The fact is, however, that four of the five elections were won by Republicans, which was not the party of the ghetto and which would not always slate ghetto candidates—although in 1962 it nominated and elected one representative and in 1968 two representatives from that area.32 many of the people who lived in Center Township including myself did not feel ready to run for public office and therefore there was a hiatus in Center Township residents. However, many of the Washington Township residents, I believe at least two Washington Township residents had a number of family and historical ties in this Center Township Area, even though they did not live there and to the best of the Committee’s ability they tried to achieve racial, geographical, economical and social diversity on the ticket. I can’t say they were entirely successful, but they made a real good attempt and this is a result of their attempts. “Q. And the real hard driving effort to put the Action Committees through did take place by the residents of Center Township; did it not? “A. It was an over-all drive. Center Township, having the population it has, could not be ignored.” Tr. 145-148. Plaintiffs’ lawyer was at the time of the trial the Marion County Democratic chairman, Tr. 256; plaintiff Chavis was a ward chairman and a longtime precinct committeeman, Tr. 77. 31 See Appendix to opinion, p. 164. 32 See ibid. In addition, the Republicans nominated and elected one senator (1960), and three representatives (1960, 1966, 1968) from census tract 220, and four representatives (three in 1962, one in 1966) from the nonghetto area of Center Township. Ibid. Although plaintiffs asserted it, there was no finding by the District Court that Republican legislators residing in the ghetto were not representative of the area or had failed properly to represent ghetto interests in the general assembly. WHITCOMB v. CHAVIS 153 124 Opinion of the Court If this is the proper view of this case, the failure of the ghetto to have legislative seats in proportion to its population emerges more as a function of losing elections than of built-in bias against poor Negroes. The voting power of ghetto residents may have been “cancelled out” as the District Court held, but this seems a mere euphemism for political defeat at the polls. On the record before us plaintiffs’ position comes to this: that although they have equal opportunity to participate in and influence the selection of candidates and legislators, and although the ghetto votes predominantly Democratic and that party slates candidates satisfactory to the ghetto, invidious discrimination nevertheless results when the ghetto, along with all other Democrats, suffers the disaster of losing too many elections. But typical American legislative elections are district-oriented, head-on races between candidates of two or more parties. As our system has it, one candidate wins, the others lose. Arguably the losing candidates’ supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. This is true of both single-member and multi-member districts. But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those so-called “safe” districts where the same party wins year after year. Plainly, the District Court saw nothing unlawful about the impact of typical single-member district elections. The court’s own plan created districts giving both Republicans and Democrats several predictably safe general assembly seats, with political, racial or economic minorities in those districts being “unrepresented” year after year. But similar consequences flowing from Marion County multi-member district elections were viewed differently. Conceding that all Marion County voters could fairly be said to be represented by the entire dele 154 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. gation, just as is each voter in a single-member district by the winning candidate, the District Court thought the ghetto voters’ claim to the partial allegiance of eight senators and 15 representatives was not equivalent to the undivided allegiance of one senator and two representatives ; nor was the ghetto voters’ chance of influencing the election of an entire slate as significant as the guarantee of one ghetto senator and two ghetto representatives.33 As the trial court saw it, ghetto voters could not be adequately and equally represented unless some of Marion County’s general assembly seats were reserved for ghetto residents serving the interests of the ghetto majority. But are poor Negroes of the ghetto any more underrepresented than poor ghetto whites who also voted Democratic and lost, or any more discriminated against than other interest groups or voters in Marion County with allegiance to the Democratic Party, or, conversely, any less represented than Republican areas or voters in years of Republican defeat? We think not. The mere fact that one interest group or another concerned with the outcome of Marion County elections has found itself 33 The comparative merits of the two approaches to metropolitan representation has been much mooted and is still in contention. See the authorities cited in n. 38, infra, particularly the piece by Kovach and the series of studies by Collins, Dauer, David, Lacy, & Mauer. And, of course, witnesses in the trial court differed on this very issue. E. g., Tr. 209-214, 223-229, 235-238, 256-258. David & Eisenberg in their study, infra, n. 38, concluded that the case for rigid insistence on single-member districting has not been proved. They would prefer a system of small multi-member districts in metropolitan areas to either the larger multi-member district or the single-member district, thereby minimizing the acknowledged shortcomings of each. More generally, still in suspense is definitive judgment about the long-range impact of voting systems and malapportionment on legislative output. Sokolow, After Reapportionment: Numbers or Policies?, 19 W. Pol. Q. Supp. 21 (1966); T. Dye, Politics, Economics, and the Public 260-277 (1966); D. Lockard, The Politics of State and Local Government 290-293 (2d ed. 1969). WHITCOMB v. CHAVIS 155 124 Opinion of the Court outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system. There is another gap in the trial court’s reasoning. As noted by the court, the interest of ghetto residents in certain issues did not measurably differ from that of other voters. Presumably in these respects Marion County’s assemblymen were satisfactorily representative of the ghetto. As to other matters, ghetto residents had unique interests not necessarily shared by others in the community and on these issues the ghetto residents were invidiously underrepresented absent their own legislative voice to further their own policy views. Part of the difficulty with this conclusion is that the findings failed to support it. Plaintiffs’ evidence purported to show disregard for the ghetto’s distinctive interests; defendants claimed quite the contrary. We see nothing in the findings of the District Court indicating recurring poor performance by Marion County’s delegation with respect to Center Township ghetto, nothing to show what the ghetto’s interests were in particular legislative situations and nothing to indicate that the outcome would have been any different if the 23 assemblymen had been chosen from single-member districts. Moreover, even assuming bloc voting by the delegation contrary to the wishes of the ghetto majority, it would not follow that the Fourteenth Amendment had been violated unless it is invidiously discriminatory for a county to elect its delegation by majority vote based on party or candidate platforms and so to some extent predetermine legislative votes on particular issues. Such tendencies are inherent in government by elected representatives; and surely elections in single-member districts visit precisely the same consequences on the supporters of losing candidates whose views are rejected at the polls. 156 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. V The District Court’s holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district.34 This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote.35 There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most, multi-member districts to survive analysis under the District Court’s view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed 34 Interestingly enough, in Wright v. Rockefeller, 376 U. S. 52 (1964), challenge was to a single-member district plan with districts allegedly drawn on racial lines and designed to limit Negroes to voting for their own candidates in safe Negro districts. We rejected the challenge for failure of proof, but noted in passing that “some of these voters . . . would prefer a more even distribution of minority groups among the four congressional districts, but others, like the intervenors in this case, would argue strenuously that the kind of districts for which appellants contended would be undesirable and, because based on race or place of origin, would themselves be unconstitutional.” 376 U. S., at 57-58. 35 Plaintiffs’ final arguments in the District Court asserted political as well as racial and economic discrimination in the workings of the Marion County district, in that the “political minority,” whether Republicans or Democrats, is “always shut out” when the opposing party wins. Tr. 254. See n. 11, supra. WHITCOMB v. CHAVIS 157 124 Opinion of the Court at providing representation for minority parties or interests.36 37 At the very least, affirmance of the District Court would spawn endless litigation concerning the multimember district systems now widely employed in this country.87 We are not insensitive to the objections long voiced to multi-member district plans.38 Although not as prevalent as they were in our early history, they have been 36 For discussions of voting systems designed to achieve minority representation, see Dixon, infra, n. 38, at 516-527; Black, The Theory of Elections in Single-member Constituencies, 15 Can. J. of Economics and Pol. Sci. 158 (1949); Silva, Relation of Representation and the Party System to the Number of Seats Apportioned to a Legislative District, 17 W. Pol. Q. 742, 744 et seq. (1964); S. Bedford, The Faces of Justice (1961); E. Lakeman & J. Lambert, Voting in Democracies (1959); Blair, Cumulative Voting: An Effective Electoral Device in Illinois Politics, 45 Ill. Studies in the Social Sciences (1960). 37 As of November 1970, 46% of the upper houses and 62% of the lower houses in the States contained some multi-member districts. National Municipal League, Apportionment in the Nineteen Sixties (Rev. Nov. 1970). In 1955, it was reported that the figures were 33% and 75%, respectively. Klain, A New Look at the Constituencies: The Need for a Recount and a Reappraisal, 49 Am. Pol. Sci. Rev. 1105 (1955). Though the overall effect of the reapportionment cases on this phenomenon is necessarily somewhat speculative, there is no doubt that some States switched to multimember districts as a result of those decisions. Prior to the decisions, for example, Vermont’s lower house was composed entirely of single-member districts. Id., at 1109. This resulted in the colorful situation of one representative for a town of 33,155 and another for a town of 38 in 1962. National Municipal League, Apportionment in the Nineteen Sixties, pt. I (b). Reapportioned and redistricted in light of Reynolds, Vermont’s lower house now has 36 multi-member and 36 single-member districts. Buckley n. Hoff, 243 F. Supp. 873 (Vt. 1965). Reapportionment has also been credited with abolishing Maryland’s tradition of single-member districts in its senate. Burdette, Maryland Reapportionment, in Apportionment in the Nineteen Sixties, supra. 38 The relative merits of multi-member and single-member plans have been much debated and the general preference for single- 427-293 0-72-14 158 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. with us since colonial times and were much in evidence both before and after the adoption of the Fourteenth Amendment.39 Criticism is rooted in their winner-take- member districts has not gone unchallenged. For representative treatment of the subject see: R. Dixon, Democratic Representation: Reapportionment in Law and Politics 461-463, 470-472, 476-490, 503-507 (1968); P. David & R. Eisenberg, State Legislative Redistricting: Major Issues in the Wake of Judicial Decision (1962); Barnett, Unitary-Multiple Election Districts, 39 Am. Pol. Sci. Rev. 65 (1945); Silva, Compared Values of the Single- and the Multi-member Legislative District, 17 W. Pol. Q. 504 (1964); Hamilton, Legislative Constituencies: Singlemember Districts, Multi-member Districts, and Floterial Districts, 20 W. Pol. Q. 321 (1967) (includes a discussion of districting in Indiana); Silva, Relation of Representation and the Party System to the Number of Seats Apportioned to a Legislative District, 17 W. Pol. Q. 742 (1964); Lindquist, Socioeconomic Status and Political Participation, 17 W. Pol. Q. 608 (1964); Klain, A New Look at the Constituencies: The Need for a Recount and a Reappraisal, 49 Am. Pol. Sci. Rev. 1105 (1955); Kovach, Some Lessons of Reapportionment, 37 Reporter 26 (Sept. 21, 1967); and M. Collins, M. Dauer, P. David, A. Lacy, & G. Mauer, Evolving Issues and Patterns of State Legislative Redistricting in Large Metropolitan Areas (1966). Interesting material with respect to the relative merits of single-and multi-member districts may be found in the congressional debates surrounding the passage in 1842 of the statute requiring representatives to be elected in single-member districts. See n. 39, infra. Though the racial considerations present here were, not surprisingly, absent in these pre-Civil War Amendments debates, the concern voiced by congressmen over the submergence of minorities, bloc voting, and party control shows, at least, that the plaintiffs’ apprehensions are not entirely new ones. See, e. g., Cong. Globe, 27th Cong., 2d Sess., 445-448, 452-453, 463-464. 39 In colonial days, “[m]ultiple districts were the rule, single ones the exception,” and “[f]or nearly a century and a half after the Declaration of Independence the American states elected by far the greater part of their lawmakers in multiple constituencies.” Klain, supra, n. 38, at 1112, 1113. Although a trend toward single-member districts began long ago, multiple districts are still much in evidence. See n. 37, supra. See also David & Eisenberg, supra, n. 38, at 20; Dixon, supra, n. 38, at 504. In 1842, Congress by statute required single-member districts for WHITCOMB v. CHAVIS 159 124 Opinion of the Court all aspects, their tendency to submerge minorities and to overrepresent the winning party as compared with the party’s statewide electoral position, a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests. The chance of winning or significantly influencing intraparty fights and issue-oriented elections has seemed to some inadequate protection to minorities, political, racial, or economic; rather, their voice, it is said, should also be heard in the legislative forum where public policy is finally fashioned. In our view, however, experience and insight have not yet dem- congressional elections. Act of June 25, 1842, §2, 5 Stat. 491. The substance of the restriction was continued in Rev. Stat. § 23 and in apportionment legislation in this century until 1929. In 1941, Congress enacted a law that required that until a State is redistricted in a manner provided by law after decennial reapportionment of the House, representatives were to be elected from the districts prescribed by the law of the State, and that “if any of them are elected from the State at large they shall continue to be so elected,” provided that if reapportionment of the House following a census shows that a State is entitled to an increase in the number of representatives, the additional representatives shall be elected at large until the State is redistricted, and if there is a decrease in the number of representatives and the number of districts in the State exceeds the number of representatives newly apportioned, all representatives shall be elected at large. Act of Nov. 15, 1941, 55 Stat. 762, amending § 22 (c) of the Act of June 18, 1929, 46 Stat. 27, 2 U. S. C. §2a(c). In 1967, Congress reinstated the single-member district requirement, “except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress.” 81 Stat. 581, 2 U. S. C. § 2c (1964 ed., Supp. V). Hawaii was the only State to take advantage of this exception. It has districted for the 92d Congress. Hawaii Rev. Stat. §12-32.5 (Supp. 1969). Congress has not purported to exercise Fourteenth Amendment powers to regulate or prohibit multi-member districts in state elections. 160 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. onstrated that multi-member districts are inherently invidious and violative of the Fourteenth Amendment. Surely the findings of the District Court do not demonstrate it. Moreover, if the problems of multi-member districts are unbearable or even unconstitutional it is not at all clear that the remedy is a single-member district system with its lines carefully drawn to ensure representation to sizable racial, ethnic, economic, or religious groups and with its own capacity for overrepresenting and underrepresenting parties and interests and even for permitting a minority of the voters to control the legislature and government of a State. The short of it is that we are unprepared to hold that district-based elections decided by plurality vote are unconstitutional in either single- or multi-member districts simply because the supporters of losing candidates have no legislative seats assigned to them. As presently advised we hold that the District Court misconceived the Equal Protection Clause in applying it to invalidate the Marion County multi-member district. VI Even if the District Court was correct in finding unconstitutional discrimination against poor inhabitants of the ghetto, it did not explain why it was constitutionally compelled to disestablish the entire county district and to intrude upon state policy any more than necessary to ensure representation of ghetto interests. The court entered judgment without expressly putting aside on supportable grounds the alternative of creating singlemember districts in the ghetto and leaving the district otherwise intact, as well as the possibility that the Fourteenth Amendment could be satisfied by a simple requirement that some of the at-large candidates each year must reside in the ghetto. Cf. Fortson v. Dorsey, supra. We are likewise at a loss to understand how on the court’s own findings of fact and conclusions of law it WHITCOMB v. CHAVIS 161 124 Opinion of White, J. was justified in eliminating every multi-member district in the State of Indiana. It did not forthrightly sustain the theory that multi-member districts always overrepresent their voters to the invidious detriment of singlemember residents. Nor did it examine any multi-member district aside from Marion County for possible intradistrict discrimination. The remedial powers of an equity court must be adequate to the task, but they are not unlimited. Here the District Court erred in so broadly brushing aside state apportionment policy without solid constitutional or equitable grounds for doing so. VII At the same time, however, we reject defendant’s suggestion that the court was wrong in ordering statewide reapportionment. After determining that Marion County required reapportionment, the court concluded that “it becomes clear beyond question that the evidence adduced in this case and the additional apportionment requirements set forth by the Supreme Court call for a redistricting of the entire state as to both houses of the General Assembly.” 305 F. Supp., at 1391. This evidence, based on 1960 census figures, showed that Senate district 20, with one senator for 80,496, was overrepresented by 13.68% while district 5, with one senator for 106,790, was underrepresented by 14.52%, for a total variance of 28.20% and a ratio between the largest and smallest districts of 1.327 to 1. The house figures were similar. The variation ranged from one representative for 41,449 in district 39 to one for 53,003 in district 35, for a variance of 24.78% and a ratio of 1.279 to l.40 These 40 The court was also impressed by the 1967 Indiana Board of Health Vital Statistics population estimates which showed a senate variance of 36.83% and a house variance of 37.30%. It did not base its order on these interim figures, however. See 307 F. Supp. 1362, 1366. 162 OCTOBER TERM, 1970 Opinion of White, J. 403 U. S. variations were in excess of, or very nearly equal to, the variation of 25.65% and the ratio of 1.30 to 1 which we held excessive for state legislatures 41 in Swann v. Adams, 385 U. S. 440 (1967). Even with this convincing showing of malapportionment, the court refrained from action in order to allow the Indiana Legislature to call a special session for the purpose of redistricting. When the legislature ignored the court’s findings and suggestion, it was not improper for the court to order statewide redistricting, as district courts have done from the time Reynolds v. Sims, 377 U. S. 533 (1964), and its companion cases were decided.42 And see Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656, 673 (1964). Nor can we accept defendant’s argument that the statutory plan was beyond attack because the District Court had held in 1965 that at that time the plan met the “substantial equality” test of Reynolds. Stout v. Bot- 41 See also Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 IT. S. 542 (1969), in which the Court held that variances of 5.97% and 13.096%, respectively, were impermissible for congressional redistricting. 42 In redistricting the State, the District Court divided some counties into several districts, and defendant attacks this as an unwarranted violation of Indiana Const., Art. 4, § 6, which says “no county, for Senatorial apportionment, shall ever be divided.” Defendant concedes that “[t]he error ... is not the per se violation” of the constitution, but rather that the court drew its plan “without having meaningfully considered” the dictates of the constitution. Brief for Appellant (Defendant) 49. But the contrary appears to us to be true. The court announced that it “would strive to preserve the integrity of county and township lines” wherever possible, 307 F. Supp., at 1364, though it ultimately concluded that the “difficulty of devising . . . compact and contiguous . . . districts within that framework [of mathematical equality] has in large part precluded preservation of county lines.” Id., at 1366. We note that none of the statewide redistricting plans that were submitted for the court’s consideration, including those of the house and senate minority leaders and the chairman of the senate majority caucus committee, followed the state constitution in this respect. R. 57-137, 198-228. WHITCOMB v. CHAVIS 163 124 Statement of Stewart, J. torff, 249 F. Supp. 488 (SD Ind. 1965). Defendant does not argue that the 1969 variances were acceptable under the Reynolds test, which has been considerably refined since that decision, see Swann v. Adams, supra. Rather, he contends that because Reynolds indicated that decennial reapportionment would be a “rational approach” to the problem, a State cannot be compelled to reapportion itself more than once in a 10-year period. Such a reading misconstrues the thrust of Reynolds in this respect. Decennial reapportionment was suggested as a presumptively rational method to avoid “daily, monthly, annual or biennial reapportionment” as population shifted throughout the State.43 Here, the District Court did not order reapportionment as a result of population shifts since the 1965 Stout decision, but only because the disparities among districts which were thought to be permissible at the time of that decision had been shown by intervening decisions of this Court to be excessive. We therefore reverse the judgment of the District Court and remand the case to that court for further proceedings consistent with this opinion. It is so ordered. [For Appendix to opinion of the Court, see post, p. 164.] Mr. Justice Stewart joins in Part I through VI of the Court’s opinion, holding that the multi-member districting scheme here in issue did not violate the Equal Protection Clause of the Fourteenth Amendment. He dissents from Part VII of the opinion for the reasons expressed in his dissenting opinion in Lucas v. Colorado General Assembly, 377 U. S. 713, 744. 43 In any event, the Court was careful to note that “we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable.” 377 U. S., at 584. The following table was included in the trial court’s findings: £» APPENDIX TO OPINION OF THE COURT TABLE NO. 7 Residence of Legislators Elected {By Marion County Area) 1 1960-69 Average Population 2 1960-69 Avg. Pop. as Percentage of Marion County Aver- ■ age Pop. 1960 3 4 5 6 7 8 9 Senators Elected as Percent of 1960-68 Total 10 11 12 13 14 15 Representatives Elected 16 Representatives Elected as -Percent of 1960-68 Total Senators 60 62 64 Elected 60- 66 68 68 60 62 60- 64 66 68 68 Washington Twp. excluding Tract 220.... .. 103,615 13.98 3 1 2 1 3 10 47.52 6 2 5 5 5 23 34.33 Census Tract 220 .. 4,866 0.66 1 0 0 0 0 1 4.75 1 0 2 115 7.46 Center Twp. excluding Ghetto .. 172,876 23.32 0 0 1 0 0 1 4.75 0 3 4 10 8 11.94 Center Twp. Ghetto.... .. 132,000 17.81 0 0 1 0 0 1 4.75 0 1 10 2 4 5.97 Pike Twp .. 11,031 1.49 0 0 0 0 0 0 0 0 0 0 0 11 1.49 Wayne Twp .. 105,961 14.30 0 0 0 0 0 0 0 1 2 0 2 2 7 10.45 Decatur Twp .. 13,755 1.86 0 0 0 0 0 0 0 0 0 0 112 2.99 Perry Twp .. 59,778 8.07 10 1 0 2 4 19.01 0 0 1113 4.48 Franklin Twp .. 8,929 1.21 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Lawrence Twp .. 49,553 6.69 0 0 1 0 1 2 9.51 2 2 0 3 2 9 13.44 Warren Twp .. 78,872 10.64 0 0 0 112 9.51 1 1 2 10 5 7.46 Marion County ... 741,234 [100%] 5 16 2 7 21 [100%] 11 11 15 15 15 67 [100%] 305 F. Supp., at 1383. o g O £ 9 o g o W C3 W O J £ ® CO 2 3 & o w a QQ WHITCOMB v. CHAVIS 165 124 Opinion of Harlan, J. Separate opinion of Mr. Justice Harlan. Earlier this Term I remarked on “the evident malaise among the members of the Court” with prior decisions in the field of voter qualifications and reapportionment. Oregon v. Mitchell, 400 U. S. 112, 218 (1970) (separate opinion of this writer). Today’s opinions in this and two other voting cases now decided1 confirm that diagnosis. I Past decisions have held that districting in local governmental units must approach equality of voter population “as far as is practicable,” Hadley v. Junior College District, 397 U. S. 50, 56 (1970), and that the “as nearly as is practicable” standard of Wesberry v. Sanders, 376 U. S. 1, 7-8 (1964), for congressional districting forbade a maximum variation of 6%. Kirkpatrick v. Preisler, 394 U. S. 526 (1969). Today the Court sustains a local governmental apportionment scheme with a 12% variation. Abate v. Mundt, post, p. 182. Other past decisions have suggested that multi-member constituencies would be unconstitutional if they could be shown “under the circumstances of a particular case . . . to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson v. Dorsey, 379 U. S. 433, 439 (1965); Burns v. Richardson, 384 U. S. 73, 88 (1966). Today the Court holds that a three-judge District Court, which struck down an apportionment scheme for just this reason, “misconceived the Equal Protection Clause.” Ante, at 160. Prior opinions stated that “once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.” Gray v. Sanders, 372 U. S. 368, 381 (1963); Hadley v. Junior College District, 397 U. S. 50, 1 Abate v. Mundt, post, p. 182; Gordon v. Lance, ante, p. 1. 166 OCTOBER TERM, 1970 Opinion of Harlan, J. 403 U. S. 59 (1970). Today the Court sustains a provision that gives opponents of school bond issues half again the voting power of proponents. Gordon v. Lance, ante, p. 1. II The Court justifies the wondrous results in these cases by relying on different combinations of factors. Abate v. Mundt relies on the need for flexibility in local governmental arrangements, the interest in preserving the integrity of political subdivisions, and the longstanding tradition behind New York’s practice in the latter respect. This case finds elementary probability theory too simplistic as a guide to resolution of what is essentially a practical question of political power ; the opinion relies on the long history of multi-member districts in this country and the fear that “affirmance of the District Court would spawn endless litigation.” Ante, at 157. Gordon v. Lance relies heavily on the “federal analogy” and the prevalence of similar anti-majoritarian elements in the constitutions of the several States. To my mind the relevance of such considerations as the foregoing is undeniable and their cumulative effect is unanswerable. I can only marvel, therefore, that they were dismissed, singly and in combination, in a line of cases which began with Gray v. Sanders, 372 U. S. 368 (1963), and ended with Hadley v. Junior College District, 397 U. S. 50 (1970). That line of cases can best be understood, I think, as reflections of deep personal commitments by some members of the Court to the principles of pure majoritarian democracy. This majoritarian strain and its nonconstitutional sources are most clearly revealed in Gray v. Sanders, supra, at 381, where my Brother Douglas, speaking for the Court, said: “The conception of political equality from the Declaration of Independence, WHITCOMB v. CHAVIS 167 124 Opinion of Harlan, J. to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” If this philosophy of majoritarianism had been given its head, it would have led to different results in each of the cases decided today, for it is in the very nature of the principle that it regards majority rule as an imperative of social organization, not subject to compromise in furtherance of merely political ends. It is a philosophy which ignores or overcomes the fact that the scheme of the Constitution is one not of majoritarian democracy, but of federal republics, with equality of representation a value subordinate to many others, as both the body of the Constitution and the Fourteenth Amendment itself show on their face. See generally Baker v. Carr, 369 U. S. 186, 297-324 (1962) (Frankfurter, J., dissenting). Ill If majoritarianism is to be rejected as a rule of decision, as the Court implicitly rejects it today, then an alternative principle must be supplied if this earlier line of cases just referred to is still to be regarded as good law. The reapportionment opinions of this Court provide little help. They speak in conclusory terms of “debasement” or “dilution” of the “voting power” or “representation” of citizens without explanation of what these concepts are. The answers are hardly apparent, for as the Court observes today: “As our system has it, one candidate wins, the others lose. Arguably the losing candidates’ supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. . . . But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, 168 OCTOBER TERM, 1970 Opinion of Harlan, J. 403 U. 8. even in those so-called ‘safe’ districts where the same party wins year after year.” Ante, at 153. A coherent and realistic notion of what is meant by “voting power” might have restrained some of the extreme lengths to which this Court has gone in pursuit of the will-o’-the-wisp of “one man, one vote.” An interesting illustration of the light which a not implausible definition of “voting power” can shed on reapportionment doctrine is provided by the theoretical model created by Professor Banzhaf, to which the Court refers, ante, at 144-146.2 This model uses as a measure of voting power the probability that a given voter will cast a tie-breaking ballot in an election. Two further assumptions are made: first, that the voting habits of all members of the electorate are alike; and second, that each voter is equally likely to vote for either candidate before him. On these assumptions, and taking the voting population in Marion County as roughly 300,000, it can be shown that the probability of an individual voter’s casting a decisive vote in a given election is approximately .00146. This provides a standard to which “voting power” of residents in other districts may be compared. See generally Banzhaf, Multi-Member Electoral Districts—Do They Violate the “One Man, One Vote” Principle, 75 Yale L. J. 1309 (1966). 2 The Court, though stating that it does “not quarrel with plaintiffs’ mathematics,” nevertheless implies that it may be ignored because “the position remains a theoretical one . . . and does ‘not take into account any political or other factors which might affect the actual voting power of the residents, which might include party affiliation, race, previous voting characteristics or any other factors which go into the entire political voting situation.’ ” Ante, at 145, 146. Precisely the same criticism applies, with even greater force, to the “one man, one vote” opinions of this Court. The only relevant difference between the elementary arithmetic on which the Court relies and the elementary probability theory on which Professor Banzhaf relies is that calculations in the latter field cannot be done on one’s fingers. WHITCOMB v. CHAVIS 169 124 Opinion of Harlan, J. However, Professor Banzhaf’s model also reveals that minor variations in assumptions can lead to major variations in results. For instance, if the temper of the electorate changes by one-half of one percent,3 each individual’s voting power is reduced by a factor of approximately 1,000,000. Or if a few of the 300,000 voters are committed—say 15,000 to candidate A and 10,000 to candidate B4—the probability of any individual’s casting a tie-breaking vote is reduced by a factor on the rough order of 120,000,000,000,000,000,000. Obviously in comparison with the astronomical differences in voting power which can result from such minor variations in political characteristics, the effects of the 12% and 28% population variations considered in Abate v. Mundt and in this case are de minimis, and even the extreme deviations from the norm presented in Baker v. Carr, 369 U. S. 186 (1962), and Avery v. Midland County, 390 U. S. 474 (1968), pale into insignificance.5 It is not surprising therefore that the Court in this case declines to embrace the measure of voting power suggested by Professor Banzhaf. But it neither suggests an alternative nor considers the consequences of its inability to measure what it purports to be equalizing. See n. 2, supra. Instead it becomes enmeshed in the haze of slogans and numerology which for 10 years has obscured its vision in this field, and finally remands the case “for further proceedings consistent with [its] opinion.” Ante, at 163. This inexplicit mandate is at 3 More precisely, the result follows if the second of Professor Banzhaf’s assumptions is altered so that the probability of each voter’s selecting candidate A over candidate B is 50.5% rather than 50%. 4 The text assumes that each of the remaining 275,000 voters is equally likely to vote for A or for B. 5 “There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.” Mark Twain, Life on the Mississippi 109 (Harper & Row, 1965). 170 OCTOBER TERM, 1970 Opinion of Harlan, J. 403 U. S. least subject to the interpretation that the court below is to inquire into such matters as “the actual influence of Marion County’s delegation in the Indiana Legislature,” ante, at 147, and the possibility of “recurring poor performance by Marion County’s delegation with respect to Center Township ghetto,” ante, at 155, with a view to determining whether “any legislative skirmish affecting the State of Indiana or Marion County in particular would have come out differently had Marion County been subdistricted and its delegation elected from singlemember districts.” Ante, at 148. If there are less appropriate subjects for federal judicial inquiry, they do not come readily to mind. The suggestion implicit in the Court’s opinion that appellees may ultimately prevail if they can make their record in these and other like respects should be recognized for what it is: a manifestation of frustration by a Court that has become trapped in the “political thicket” and is looking for the way out. This case is nothing short of a complete vindication of Mr. Justice Frankfurter’s warning nine years ago “of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country.” Baker v. Carr, 369 U. S. 186, 268 (1962) (dissenting opinion). With all respect, it also bears witness to the morass into which the Court has gotten itself by departing from sound constitutional principle in the electoral field. See the dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr, supra, and my separate opinions in Reynolds v. Sims, 377 U. S. 533, 589 (1964), and in Oregon v. Mitchell, 400 U. S. 112, 152 (1970). I hope the day will come when the Court will frankly recognize the error of its ways in ever having undertaken to restructure state electoral processes. I would reverse the judgment below and remand the case to the District Court with directions to dismiss the complaint. WHITCOMB v. CHAVIS 171 124 Opinion of Douglas, J. Mr. Justice Douglas, with whom Mr. Justice Brennan and Mr. Justice Marshall concur, dissenting in part and concurring in the result in part. The Indiana Constitution provides that “no county, for Senatorial apportionment, shall ever be divided.” Art. 4, § 6. The legislative apportionment statutes in Indiana which implemented that provision gave Marion County eight senators, all elected at large. The statutes also gave the county 15 at-large representatives. Marion County is the most populous in the State. It contains nine townships and includes the city of Indianapolis. On January 9, 1969, this lawsuit was commenced to require a subdivision of the multi-member districting practiced in Marion County. Certain voters contended that the multi-member district deprived them of equal protection of the laws because it diluted the voting rights of an identifiable racial minority within the county. To determine if there was an identifiable minority within the county the District Court adopted the following definition of “ghetto”: “A primarily residential section of an urban area characterized by a higher relative density of population and a higher relative proportion of substandard housing than in the overall metropolitan area which is inhabited predominantly by members of a racial, ethnic, or other minority group, most of whom are of lower socioeconomic status than the prevailing status in the metropolitan area and whose residence in the section is often the result of social, legal, or economic restrictions or custom.” 305 F. Supp. 1364, 1373. Applying the definition to the extensive evidence in the case, the District Court found there was an identifiable ghetto area within Center Township. The court then contrasted the residence of those elected to the state 172 OCTOBER TERM, 1970 Opinion of Douglas, J. 403 U. S. House and Senate from Marion County since 1960. There had been 21 elected senators; two came from Center Township, 11 from Washington Township. Of the 67 representatives, 12 came from Center Township and 28 from Washington Township. The District Court concluded: “The inequity of representation by residence of legislators between Washington and Center Townships is apparent .... Washington Township, the upper middle-class and wealthy suburban area having 14.64% of the population of Marion County, was the residence of 52.27% of the senators and 41.79% of the representatives. Center Township, having 41.14% of the population (approximately three times as large), was the residence of 9.51% of the senators (less than one-fifth of Washington Township) and 17.91% of the representatives (approximately three-sevenths of Washington Township).” 305 F. Supp., at 1385. The court found that the voting strength of the cognizable element within Center Township was severely minimized, that minimization occurred by virtue of the strong control which the political parties exert over the nomination process in Marion County, and that black voters within Center Township are unable to be assured of the opportunity of voting for prospective legislators of their choice. The court further found that “[u]nder the evidence before the Court such invidious effects will continue so long as Marion County is apportioned into large senate and house multi-member districts.” 305 F. Supp., at 1399. I Based on its findings the District Court held the then Indiana apportionment acts unconstitutional and enjoined their enforcement. The court then determined WHITCOMB v. CHAVIS 173 124 Opinion of Douglas, J. that to redistrict Marion County alone would leave constitutionally impermissible population variances between the newly created districts and the other districts in the State and therefore redistricting the entire State was necessary. In its redistricting plan the District Court divided well over half of the counties in the State despite Art. 4, § 6, of the Indiana Constitution. Marion County itself was divided into seven separate senatorial districts and an eighth was created by taking part of Marion and parts of Johnson and Morgan Counties. The court mandated that the 1970 election be conducted in accordance with the plan it approved and the court retained jurisdiction for the purpose of passing on any future claims of unconstitutionality made by the plaintiffs against any future legislative apportionment plan promulgated. This Court stayed the District Court’s order. 396 U. S. 1055. This suit was commenced some 22 months before the 1970 election in ample time for a decision on the merits. The plaintiffs in fact won below but this Court stayed the order. Now the election has been held and a federal decennial census has been taken. Under the compulsion of the decree of the District Court the legislature has adopted single-member districts for the entire State. But absent a federal decree they would certainly follow the mandate of the Indiana Constitution. As the Court says, the fact that the 1970 election is history does not affect the underlying claim in this case. We have a finding of fact that an identifiable racial minority has its voting strength severely minimized by the operation of multi-member districts. We also have a finding that the invidious effects will continue so long as Marion County has multi-member districts. Under the order of the District Court (absent our stay) the 1965 apportionment statutes could not be used. The District Court would retain jurisdiction and no attempt by the state 427-293 0 - 72 - 15 174 OCTOBER TERM, 1970 Opinion of Douglas, J. 403 U. S. legislature to apply Art. 4, § 6, of the Constitution would be successful because under the conclusions of the District Court it is unconstitutional as applied to Marion County. See Reynolds v. Sims, 377 U. S. 533, 584. There is no chance that the Indiana Constitution can be amended in time to undo the harm. By its own provisions any amendment requires a majority vote in each house of two consecutive general assemblies; it is then referred to the voters and ratified by majority vote. Art. 16, § 1. The Indiana Constitution requires “an enumeration ... of all male inhabitants over the age of twenty-one years” to be made every six years. Art. 4, § 4. Then at the next legislative session, the general assembly is directed to reapportion the State according to the number of male inhabitants above the age of 21. Art. 4, § 5. These provisions fell into disuse and the last enumeration provided for was in 1921 and, prior to Baker v. Carr, 369 U. S. 186, the legislature had not been apportioned since that time. See Matthews v. Handley, 179 F. Supp. 470 (ND Ind. 1959) ; Fruit v. Metropolitan School District, 241 Ind. 621, 172 N. E. 2d 864. Indiana courts had no power to require reapportioning under the state constitution. Parker v. State ex rel. Powell, 133 Ind. 178, 32 N. E. 836. In 1969 the legislature initially approved proposed constitutional changes to those two sections which will provide for using the federal decennial census for Indiana and apportioning the State immediately thereafter, such apportionment to remain unaltered until the next decennial census. S. J. Res. No. 26, Acts I960, c. 464. The provision must still be approved by the 1971 general assembly and a majority of the voters. See Art. 16, § 1, of the Indiana Constitution. At the time this case was argued under the Indiana Apportionment Act of 1965 (2d Spec. Sess.), c. 4, § 1, and c. 5, § 1, the 1960 Decennial Census was accepted as correct. WHITCOMB v. CHAVIS 175 124 Opinion of Douglas, J. Nor does the fact that the state legislature has passed a reapportionment plan abolishing multi-member districts throughout the entire State moot this case. But for the decision below no such plan would have been forthcoming. The plan is in plain violation of the state constitution and in view of the fact that no Indiana Legislature has ever violated that provision of the state constitution before it is obvious that the impetus came from the outside.1 The provision of the state constitution forbidding dividing a county for senatorial apportionment is unconstitutional under the Federal Constitution as applied to Marion County. See Reynolds n. Sims, 377 U. S., at 584. Mooting the case would accomplish nothing. If we were to moot it, the state courts would likely void the 1971 apportionment plan as violative of the state constitution and then the parties would be right back where they were at the beginning of this lawsuit. It is apparent this controversy remains alive and that there is no reason to wait two or more years in order to decide it in a case growing out of a state court determination on the constitutionality of single-member districts in Marion County, as would happen should we vacate the decree below and force the parties to another forum for another round of litigation on the same issue. The constitutional provision which now requires multimember senatorial districts has been in Indiana’s constitution from the date of enactment—1851. And the ghetto voters’ position as a class will not change. The findings of the District Court clearly state the invidious effects will last so long as multi-member districting lasts. The District Court found that “to redistrict Marion County alone, to provide single-member districts or any other type of districts meeting constitutional standards, would 1 Wallace, Legislative Apportionment In Indiana : A Case History, 42 Ind. L. J.6, 30 (1966). 176 OCTOBER TERM, 1970 Opinion of Douglas, J. 403 U. S. leave impermissible population variations between the new Marion County districts and other districts in the State.” 305 F. Supp., at 1399. Accordingly the court redistricted the entire State.2 The decision to redistrict the State and the finding of minimization of the ghetto voters’ strength are intertwined. As the District Court stated, the “portions of the . . . statutes relating to Marion County” were found to be not severable from the full body of the statutes. 305 F. Supp., at 1399. There is no showing here that that finding is even partially erroneous let alone clearly erroneous. A decision to redistrict Marion County involves the entire State; each properly must be considered with the other. II The merits of the case go to the question reserved in Fortson v. Dorsey, 379 U. S. 433, 439, and in Wells v. Rockefeller, 394 U. S. 542, 544, whether a gerrymander can be “constitutionally impermissible.” The question of the gerrymander3 is the other half of Reynolds v. Sims, 377 U. S. 533. Fair representation of voters in a legislative assembly—one man, one vote—would seem to require (1) substantial equality of population within each district and (2) the avoidance of district lines that weigh the power of one race more heavily than another. The latter can be done—and is done—by astute drawing of district lines that makes the district either heavily Democratic or heavily Republican as the case may be. Lines may be drawn so as to make the voice 2 The District Court also found independent of the new districts that there were impermissible population variances in the Indiana, apportionment. The ratio between the largest and smallest Senate district was 1.327 to 1. For the House it was 1279 to 1. Under the plan promulgated by the District Court these were reduced to 1.017 to 1 and 1.020 to 1 respectively. 3 See Tyler & Wells, The New Gerrymander Threat, AFL-CIO American Federationist 1 (Feb. 1971). WHITCOMB v. CHAVIS 177 124 Opinion of Douglas, J. of one racial group weak or strong, as the case may be. The problem of the gerrymander is how to defeat or circumvent the sentiments of the community. The problem of the law is how to prevent it. As Mr. Justice Harlan once said “A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues.” Wells v. Rockefeller, 394 U. S., at 551 (dissenting). The easy device is the gerrymander. The District Court found that it operated in this case to dilute the vote of the blacks. Ill In Gomillion v. Lightfoot, 364 U. S. 339, we dealt with the problem of a State intentionally making a district smaller to exclude black voters. Here we have almost the converse problem. The State’s districts surround the black voting area with white voters. Gomillion, involving the turning of the city of Tuskegee from a geographical square “to an uncouth twentyeight-sided figure,” 364 U. S., at 340, was only one of our cases which dealt with elevating the political interests of one identifiable group over those of another. Georgia’s county unit system was similar, although race was not a factor. Under the Georgia system a farmer in a rural county could have up to 99 times the voting power of his urban-dwelling brother. See Gray v. Sanders, 372 U. S. 368. Here the districting plan operates to favor “upper-middle class and wealthy” suburbanites. 305 F. Supp., at 1385. A showing of racial motivation is not necessary when dealing with multi-member districts. Burns v. Richardson, 384 U. S. 73, 88; Fortson v. Dorsey, 379 U. S., at 439. Although the old apportionment plan which is in full harmony with the State’s 1851 constitution, may not be racially motivated, the test for multi-member districts is whether there are invidious effects. 178 OCTOBER TERM, 1970 Opinion of Douglas, J. 403 U. S. That rule is but an application of a basic principle applied in Hunter v. Erickson, 393 U. S. 385. There a city passed a housing law which provided that before an ordinance regulating the sale or lease of realty on the basis of race could become effective it must be approved by a majority vote. Thus, the protection of minority interests became much more difficult. We held that a State or a state agency could not in its voting scheme so disadvantage black interests. Multi-member districts are not per se unconstitutional. Fortson v. Dorsey, 379 U. S., at 439. In that case we expressly reserved judgment on the question of whether a multi-member districting plan which operated “to minimize or cancel out the voting strength of racial or political elements of the voting population” could pass constitutional muster. Ibid. In Burns v. Richardson, supra, we again considered the problems of multi-member districts. The doubts noted in Fortson v. Dorsey were resolved and we stated that assuming the requirements of Reynolds v. Sims, 377 U. S. 533, were satisfied, multi-member districts are unconstitutional “only if it can be shown that ‘designedly or otherwise’. . . [such a district would operate] to minimize or cancel out the voting strength of racial or political elements of the voting population.” 384 U. S., at 88. We went on to suggest how the burden of proof could be met. “It may be that this invidious effect can more easily be shown if, in contrast to the facts in Fortson, districts are large in relation to the total number of legislators, if districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district, or if such districts characterize both houses of a bicameral legislature rather than one.” Ibid. These factors are all present in this case. Between the WHITCOMB v. CHAVIS 179 124 Opinion of Douglas, J. largest (Marion) and second largest (Lake) counties in the State, 26% of each house of the legislature is controlled. There is no subdistricting under the Indiana plan. Cf. Dusch v. Davis, 387 U. S. 112. And multi-member districts are used in both houses of the legislature. In both Fortson and Burns we demanded that the invidious effects of multi-member districts appear from evidence in the record. Here that demand is satisfied by (1) the showing of an identifiable voting group living in Center Township, (2) the severe discrepancies of residency of elected members of the general assembly between Center and Washington Townships, cf. Brennan, J., dissenting in Abate v. Mundt, post, p. 187, (3) the finding of pervasive influence of the county organizations of the political parties, and (4) the finding that legislators from the county maintain “common, undifferentiated” positions on political issues.4 305 F. Supp., at 1385. IV Little time need be spent on the District Court’s decision to redistrict the entire State. The court found that there were already impermissible population variances between districts under the current apportionment plan. The ratio between the largest and smallest Senate district was 1.327 to 1. For the House it was 1.279 to 1. The court also found that the new Marion County districts would also have impermissible population variances when compared to existing districts. 4 The three-judge court “emphasized that the black plaintiffs were members of an identifiable interest group whose voting strength had been minimized by the multi-member districting scheme. They were not only unable to elect a legislator who was attuned to their interests, but were also saddled with lawmakers who reflected white suburban ideology and were controlled by political leaders.” Note, Chavis v. Whitcomb: Apportionment, Gerrymandering, and Black Voting Rights, 24 Rutgers L. Rev. 521, 533 (1970). 180 OCTOBER TERM, 1970 Opinion of Douglas, J. 403 U. S. On these facts the demands of our decisions required redistricting. As Reynolds v. Sims showed, the state constitution must give way to requirements of the Supremacy Clause when there is a conflict with the Federal Constitution. And, finally, the District Court’s own plan was exemplary. The population ratio for the largest and smallest Senate districts was 1.017 to 1 and for the House it was 1.020 to 1. V It is said that if we prevent racial gerrymandering today, we must prevent gerrymandering of any special interest group tomorrow, whether it be social, economic, or ideological. I do not agree. Our Constitution has a special thrust when it comes to voting; the Fifteenth Amendment says the right of citizens to vote shall not be “abridged” on account of “race, color, or previous condition of servitude.” Our cases since Baker v. Carr have never intimated that “one man, one vote” meant “one white man, one vote.” Since “race” may not be gerrymandered, I think the Court emphasizes the irrelevant when it says that the effect on “the actual voting power” of the blacks should first be known. They may be all Democratic or all Republican; but once their identity is purposely washed out of the system, the system, as I see it, has a constitutional defect. It is asking the impossible for us to demand that the blacks first show that the effect of the scheme was to discourage or prevent poor blacks from voting or joining such party as they chose. On this record, the voting rights of the blacks have been “abridged,” as I read the Constitution. The District Court has done an outstanding job, bringing insight to the problems. One can always fault a lower court by stating theoretical aspects of apportionment plans that may not have been considered. This WHITCOMB v. CHAVIS 181 124 Opinion of Douglas, J. District Court acted earnestly and boldly to correct a festering electoral system. I would not even vacate and remand so that it could revise its plan in accordance with the 1970 census figures. That court has retained jurisdiction of the cause and has sense enough to update its own plan. We can make the contribution of the District Court enormous and abiding by leaving it the initiative to carry out the mandate of Reynolds v. Sims. I would affirm the judgment. 182 OCTOBER TERM, 1970 Syllabus 403 U. S. ABATE et al. v. MUNDT et al. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK No. 71. Argued November 19, 1970—Decided June 7, 1971 For more than a century the Rockland County board of supervisors consisted of the supervisors of the county’s five towns, resulting in extensive functional interrelationships and intergovernmental coordination between county and towns. Severe malapportionment due to population growth led to court-ordered reapportionment. The proposed plan, challenged by petitioners, provides for a county legislature of 18 members chosen from five districts, corresponding with the towns, each district being assigned legislators in the proportion of its population to that of the smallest town. The plan produces a total deviation from equality of 11.9%. The Court of Appeals of New York upheld the plan. Held: In light of the long tradition of overlapping functions and dual personnel in the Rockland County government and the fact that the plan does not contain any built-in bias favoring particular political interests or geographic areas, the plan is not violative of the Equal Protection Clause. Pp. 185-187. 25 N. Y. 2d 309, 253 N. E. 2d 189, affirmed. Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Black, White, and Blackmun, JJ., joined. Harlan, J., filed a statement concurring in the result. Stewart, J., concurred in the judgment. Brennan, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 187. Frank P. Barone argued the cause and filed a brief for petitioner Abate. Doris Friedman Ulman argued the cause and filed a brief for petitioners Molof et al. Paul H. Rivet argued the cause and filed a brief for petitioners O’Sullivan et al. J. Martin Cornell argued the cause for respondents. With him on the brief was Arthur J. Prindle. Louis J. Lefkowitz, Attorney General, Ruth Kessler Toch, Solicitor General, and Robert W. Imrie, Assistant Attorney General, filed a brief for the State of New York as amicus curiae. ABATE v. MUNDT 183 182 Opinion of the Court Mr. Justice Marshall delivered the opinion of the Court. In this case, petitioners challenge the constitutionality of a reapportionment plan proposed in response to both federal and state court findings of malapportionment in Rockland County, New York. The Court of Appeals of the State of New York upheld the plan. We affirm. For more than 100 years, Rockland County was governed by a board of supervisors consisting of the supervisors of each of the county’s five constituent towns. This county legislature was not separately elected; rather, its members held their county offices by virtue of their election as town supervisors—a pattern that typified New York county government. The result has been a local structure in which overlapping public services are provided by the towns and their county working in close cooperation. For example, in Rockland County the towns adopt their own budgets and submit them to the county which levies taxes. These taxes are based on real property assessments established by the towns but equalized by the county board. Similarly, public services such as waste disposal and snow removal are provided through cooperative efforts among the municipalities. There is no indication that these joint efforts have declined in importance; in fact, respondents strenuously urge that the county’s rapidly expanding population has amplified the need for town and county coordination in the future. The county’s increased population also produced severe malapportionment—so severe that, in 1966, a federal district court required that the county board submit a reapportionment plan to the Rockland County voters, Lodico v. Board of Supervisors, 256 F. Supp. 440 (SDNY). Pursuant to that order, three different plans were devised and submitted to the electorate; but each was rejected at the polls. The present action was brought in 1968 to compel the board to reapportion. After its 184 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. initial proposal was rejected by the New York courts, the board submitted the plan that is the subject of this decision. The challenged plan, based on 1969 population figures, provides for a county legislature composed of 18 members chosen from five legislative districts. These districts exactly correspond to the county’s five constituent towns. Each district is assigned its legislators according to the district’s population in relation to the population of the smallest town, Stony Point. Stony Point has a population of 12,114 and is assigned one representative in the county legislature. The number of representatives granted the other districts is determined by dividing the population of each by the population of the smallest town. Fractional results of the computation are rounded to the nearest integer, and this need to round off “fractional representatives” produces some variations among districts in terms of population per legislator. Under 1969 population figures, the Orangetown district is the most “underrepresented” (7.1%); while Clarkstown is the most “overrepresented” (4.8%). Thus, the plan presently produces a total deviation from population equality of I1.9%? Petitioners attack these deviations as unconstitutional.2 1 All of the population figures and percentage deviations are: Number of Percentage** District Population* Representatives Deviations Stony Point 12,114 1 0.3 Haverstraw 23,676 2 2.5 Orangetown 52,080 4 —7.1 Clarkstown 57,883 5 4.8 Ramapo 73,051 6 —0.2 *1969 Population data. **(—) refers to “underrepresented.” 2 Petitioners also attack the plan’s use of multi-member districts. However, they have not shown that these multi-member districts, by themselves, operate to impair the voting strength of particular racial or political elements of the Rockland County voting population, see Bums v. Richardson, 384 U. S. 73, 88 (1966). ABATE v. MUNDT 185 182 Opinion of the Court It is well established that electoral apportionment must be based on the general principle of population equality and that this principle applies to state and local elections, Avery v. Midland County, 390 U. S. 474, 481 (1968). “Mathematical exactness or precision is hardly a workable constitutional requirement,” Reynolds v. Sims, 377 U. S. 533, 577 (1964), but deviations from population equality must be justified by legitimate state considerations, Swann v. Adams, 385 U. S. 440, 444 (1967). Because voting rights require highly sensitive safeguards, this Court has carefully scrutinized state interests offered to justify deviations from population equality. In assessing the constitutionality of various apportionment plans, we have observed that viable local governments may need considerable flexibility in municipal arrangements if they are to meet changing societal needs, Sailors v. Board of Education, 387 U. S. 105, 110-111 (1967), and that a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality. Reynolds v. Sims, supra, at 578. These observations, along with the facts that local legislative bodies frequently have fewer representatives than do their state and national counterparts and that some local legislative districts may have a much smaller population than do congressional and state legislative districts, lend support to the argument that slightly greater percentage deviations may be tolerable for local government apportionment schemes, cf. ibid. Of course, this Court has never suggested that certain geographic areas or political interests are entitled to disproportionate representation. Rather, our statements have reflected the view that the particular circumstances and needs of a local community as a whole may sometimes justify departures from strict equality. Accordingly, we have underscored the danger of apportionment structures that contain a built-in bias tending 186 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more highly populated neighbors, see Hadley v. Junior College District, 397 U. S. 50, 57-58 (1970). In this case, we have no such indigenous bias; there is no suggestion that the Rockland County plan was designed to favor particular groups. It is true that the existence of any deviations from strict equality means that certain districts are advantaged at that point in time; but, under this plan, changing demographic patterns may shift electoral advantages from one town to another.3 The mere absence of a built-in bias is not, of course, justification for a departure from population equality. In this case, however, Rockland County defends its plan by asserting the long history of, and perceived need for, close cooperation between the county and its constituent towns. The need for intergovernmental coordination is often greatest at the local level, and we have already commented on the extensive functional interrelationships between Rockland County and its towns. But because almost all governmental entities are interrelated in numerous ways, we would be hesitant to accept this justification by itself. To us, therefore, it is significant that Rockland County has long recognized the advantages of having the same individuals occupy the governing positions of both the county and its towns. For over 100 years, the five town supervisors were the only members of the county board, a system that necessarily fostered extensive interdependence between the towns and their county government. When population shifts required that some towns receive a greater portion of seats on the 3 Naturally, we express no opinion on the contention that, in future years, the Rockland County plan may produce substantially greater deviations than presently exist. Such questions can be answered if and when they arise. ABATE v. MUNDT 187 182 Brennan, J., dissenting county legislature, Rockland County responded with a plan that substantially remedies the malapportionment and that, by preserving an exact correspondence between each town and one of the county legislative districts, continues to encourage town supervisors to serve on the county board. We emphasize that our decision is based on the long tradition of overlapping functions and dual personnel in Rockland County government and on the fact that the plan before us does not contain a built-in bias tending to favor particular political interests or geographic areas. And nothing we say today should be taken to imply that even these factors could justify substantially greater deviations from population equality. But we are not prepared to hold that the Rockland County reapportionment plan violates the Constitution, and, therefore, we affirm. Mr. Justice Harlan concurs in the result for the reasons stated in his separate opinion in Whitcomb v. Chavis, ante, p. 165. Mr. Justice Stewart concurs in the judgment. Mr. Justice Brennan, with whom Mr. Justice Douglas joins, dissenting. The Court today reaffirms all of the principles of Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny but refuses, for a combination of reasons unpersuasive to me, to apply those principles to this apportionment scheme. I believe that our recent decisions in Avery v. Midland County, 390 U. S. 474 (1968); Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969), require reversal and I therefore dissent. The Court holds that “a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality. Reynolds 188 OCTOBER TERM, 1970 Brennan, J., dissenting 403 U. S. v. Sims, supra, at 578.” Ante, at 185. The Court’s reliance on Reynolds is misplaced. We said there that “it may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting.” 377 U. S., at 578. But we warned that “[t]o do so would be constitutionally valid, so long as the resulting apportionment was one based substantially on population and the equalpopulation principle was not diluted in any significant way.” Ibid, (emphasis added). Moreover, the Court did not at that point in time “deem it expedient ... to attempt to spell out any precise constitutional tests.” We have done so since. In Kirkpatrick v. Preisler, supra, we explained that because “[t]oleration of even small deviations detracts from” the constitutional command of “equal representation for equal numbers of people,” only those “limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown” are permissible. 394 U. S., at 531. “[T]he State must justify each variance, no matter how small.” Ibid. On the record presented here it is clear that such a good-faith effort has not been made. Nor can it be said that sufficient justification has been demonstrated for an 11.9% deviation from voting equality. The plan approved here allegedly represents as close to mathematical exactness as is possible without changing existing political boundaries or using weighted or fractional votes. But a plan devised under these constraints is not devised in the good-faith effort that the Constitution requires. In Wells v. Rockefeller, supra, we struck down a similar plan. We held that an attempt to maintain existing county lines was insufficient justification for a 12.1% variance. In explanation we stated that an attempt “to keep regions with distinct interests intact” ABATE v. MUNDT 189 182 Brennan, J., dissenting was insufficient because to accept such a justification “would permit groups of districts with defined interest orientations to be overrepresented at the expense of districts with different interest orientations.” 394 U. S., at 546. That is precisely what we are dealing with here. The attempt to maintain existing town lines has resulted in a variance from equality of 11.9%. I cannot believe that a 0.2% differential is the determining factor in approving this apportionment scheme. The Court explains that it is, rather, a combination of factors that dictates this result, and that among them is the fact that New York has a long history of maintaining the integrity of existing counties. It is not clear to me why such a history, no matter how protracted, should alter the constitutional command to make a good-faith effort to achieve equality of voting power as near to mathematical exactness as is possible.' Today’s result cannot be excused by asserting that local governments are somehow less important than national and state governments. We have already fully applied the principle of one man, one vote to local polities because “the States universally leave much policy and decisionmaking to their governmental subdivisions. . . . In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens.” Avery n. Midland County, 390 U. S., at 481. It is clear to me that none of the factors relied upon by the Court today can, singly or in combination, justify this variation. Obviously no other local apportionment scheme can possibly present the same combination of factors relied on by the Court today. In that sense this decision can have little or no precedential value. Nevertheless, I cannot help but regret even this small departure from the basic constitutional concept of one man, one vote. 427-293 0 - 72 -16 190 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. UNITED STATES et al. v. MITCHELL et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 798. Argued April 20, 1971—Decided June 7, 1971 A married woman domiciled in Louisiana, where under state law the wife has a present vested interest in community property equal to that of her husband, is personally liable for federal income taxes on her one-half interest in community income realized during the existence of the community, notwithstanding her subsequent renunciation under state law of her community rights, since federal, not state, law governs what is exempt from federal taxation. Pp. 194-206. 430 F. 2d 1 and 7, reversed. Blackmun, J., delivered the opinion for a unanimous Court. William Terry Bray argued the cause for the United States et al. With him on the brief were Solicitor General Griswold, Assistant Attorney General Walters, Matthew J. Zinn, and Crombie J. D. Garrett. Paul K. Kirkpatrick, Jr., argued the cause and filed a brief for respondent Mitchell. Patrick M. Schott argued the cause and filed a brief for respondent Angello. Mr. Justice Blackmun delivered the opinion of the Court. The petition here, arising from two cases below, presents the issue whether a married woman domiciled in the community property State of Louisiana is personally liable for federal income tax on half the community income realized during the existence of the community despite the exercise of her statutory right of exoneration. The issue arises in the context, in one case, of a divorce, and, in the other, of the husband’s death. UNITED STATES v. MITCHELL 191 190 Opinion of the Court I Mrs. Mitchell and Mrs. Sims. The Commissioner of Internal Revenue determined deficiencies against Anne Goyne Mitchell and Jane Isabell Goyne Sims for the tax years 1955-1959, inclusive. These were for federal income tax and for additions to tax under § 6651 (a) (failure to file return), § 6653 (a) (underpayment due to negligence or intentional disregard of rules and regulations), and § 6654 (underpayment of estimated tax) of the Internal Revenue Code of 1954, 26 U. S. C. §§ 6651 (a), 6653 (a), and 6654. Mrs. Sims is the sister of Mrs. Mitchell. The determinations as to her were made under § 6901 as Mrs. Mitchell’s transferee without consideration. Anne Goyne and Emmett Bell Mitchell, Jr., were married in 1946. They lived in Louisiana. In July 1960, however, they began to live separately and apart. In August 1961 Mrs. Mitchell sued her husband in state court for separation. Upon his default, she was granted this relief. A final decree of divorce was entered in October 1962. In her separation suit Mrs. Mitchell prayed that she be allowed to accept the community of acquets and gains with benefit of inventory. However, taking advantage of the privilege granted her by Art. 2410 of the Louisiana Civil Code,1 she formally renounced the community on September 18, 1961. As a consequence, she received neither a distribution of community property nor a property settlement upon dissolution of her marriage. This renunciation served to exonerate her of “debts contracted during the marriage.” 1 Art. 2410. “Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.” 192 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Mrs. Mitchell earned $4,200 as a teacher during 1955 and 1956. From these earnings tax was withheld. Mr. Mitchell enjoyed taxable income during the five years in question. All income realized by both spouses during this period was community income. Mrs. Mitchell had little knowledge of her husband’s finances. She rarely knew the balance in the family bank account. She possessed a withdrawal privilege on that account, and occasionally exercised it. Her husband was in charge of the couple’s financial affairs and did not usually consult his wife about them. She was aware of fiscal irresponsibility on his part. She questioned him each year about tax returns. She knew returns were required, but relied on his assurances that he was filing timely returns and paying the taxes due. She signed no return herself and assumed that he had signed her name for her. In July 1960 she learned that, in fact, no returns had ever been filed for 1955-1959. The deficiencies determined against Mrs. Mitchell were based upon half the community income. The Commissioner sought to collect the deficiencies from property Mrs. Mitchell inherited from her mother in 1964 and immediately transferred, without consideration, to Mrs. Sims. Mrs. Mitchell sought redetermination in the Tax Court. Judge Forrester held that under Louisiana community property law Mrs. Mitchell possessed an immediate vested ownership interest in half the community property income and was personally responsible for the tax on her share. He also ruled that this tax liability was not affected by her Art. 2410 renunciation. Mitchell v. Commissioner, 51 T. C. 641 (1969). On appeal, the Fifth Circuit reversed, holding that by the renunciation Mrs. Mitchell avoided any federal income tax liability on the community income. Mitchell UNITED STATES v. MITCHELL 193 190 Opinion of the Court v. Commissioner, 430 F. 2d 1 (CA5 1970).2 Judge Simpson dissented on the basis of Judge Forrester’s opinion in the Tax Court. 430 F. 2d, at 7. Mrs. Angello. Throughout the calendar years 1959-1961 Mrs. Angello, who was then Frances Sparacio, lived with her husband, Jack Sparacio, in Louisiana. Community income was realized by the Sparacios during those years, but neither the husband nor the wife filed any returns. In 1965 the District Director made assessments against them for taxes, penalties, and interest, filed a notice of lien, and addressed a notice of levy to the Metropolitan Life Insurance Company, which had a policy outstanding on Mr. Sparacio’s life. The insured died in March 1966 and the notice of levy (for that amount of tax and interest resulting from imputing to Mrs. Sparacio half the community’s income for the tax years in question) attached to the proceeds of the policy. The widow, who was the named beneficiary, sued the Metropolitan in state court to recover the policy proceeds. The United States intervened to assert and protect its lien. The case was then removed to federal court. The Metropolitan paid the proceeds into the court registry and was dismissed from the case. Each side then moved for summary judgment. Judge Christenberry granted the Government’s motion and denied Mrs. Angello’s. Despite the absence of any formal renunciation by Mrs. Angello under Art. 2410, the Government did not contend that she had accepted any benefits of the community. On appeal, the Court of Appeals reversed, relying on the same panel’s decision in the Mitchell case. Angello v. Metropolitan Life Ins. Co., 430 F. 2d 7 (CA5 1970). Judge Simpson again dissented. 2 Accord, with respect to Texas law, Ramos v. Commissioner, 429 F. 2d 487 (CA5 1970). 194 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. We granted certiorari in both cases, 400 U. S. 1008 (1971), on a single petition filed under our Rule 23 (5). II Sections 1 and 3 of the 1954 Code, 26 U. S. C. §§ 1 and 3, as have all of their predecessors since the Revenue Act of 1917,3 impose a tax on the taxable income “of every individual.” The statutes, however, have not specified what that phrase includes. Forty years ago this Court had occasion to consider the phrase in the face of various state community property laws and of §§ 210 and 211 of the Revenue Act of 1926. A husband and wife, residents of the State of Washington, had income in 1927 consisting of the husband’s salary and of amounts realized from real and personal property of the community. The spouses filed separate returns for 1927 and each reported half the community income. Mr. Justice Roberts, in speaking for a unanimous Court (two Justices not participating) upholding this tax treatment, said: “These sections lay a tax upon the net income of every individual. The Act goes no farther, and furnishes no other standard or definition of what constitutes an individual’s income. The use of the word ‘of’ denotes ownership. It would be a strained construction, which, in the absence of further defini- 3 Internal Revenue Code of 1939, §§11 and 12; Revenue Act of 1938, §§ 11 and 12, 52 Stat. 452, 453; Revenue Act of 1936, §§ 11 and 12, 49 Stat. 1653; Revenue Act of 1934, §§11 and 12, 48 Stat. 684; Revenue Act of 1932, §§ 11 and 12, 47 Stat. 174; Revenue Act of 1928, §§ 11 and 12, 45 Stat. 795, 796; Revenue Act of 1926, §§ 210 and 211, 44 Stat. 21; Revenue Act of 1924, §§210 and 211, 43 Stat. 264, 265; Act of March 4, 1923, 42 Stat. 1507; Revenue Act of 1921, §§210 and 211, 42 Stat. 233; Revenue Act of 1918, §§210 and 211, 40 Stat. 1062; Revenue Act of 1917, §§ 1 and 201, 40 Stat. 300, 303. UNITED STATES v. MITCHELL 195 190 Opinion of the Court tion by Congress, should impute a broader significance to the phrase.” Poe v. Seaborn, 282 U. S. 101, 109 (1930). The Court thus emphasized ownership. It looked to the law of the State as to the ownership of community property and of community income. It concluded that in Washington the wife has “a vested property right in the community property, equal with that of her husband; and in the income of the community, including salaries or wages of either husband or wife, or both.” Id., at 111. It noted that, in contrast, in an earlier case, United States v. Robbins, 269 U. S. 315 (1926), the opposite result had been reached under the then California law. But: “In the Robbins case, we found that the law of California, as construed by her own courts, gave the wife a mere expectancy and that the property rights of the husband during the life of the community were so complete that he was in fact the owner.” 282 U. S., at 116. In companion cases the Court came to the same conclusion, as it had reached in Seaborn, with respect to the community property laws of Arizona, Texas, and Louisiana. Goodell v. Koch, 282 U. S. 118 (1930); Hopkins v. Bacon, 282 U. S. 122 (1930); Bender v. Pjafi, 282 U. S. 127 (1930). In the Louisiana case it was said: “If the test be, as we have held it is, ownership of the community income, this case is probably the strongest of those presented to us, in favor of the wife’s ownership of one-half of that income.” 282 U. S., at 131. The Court then reviewed the relevant Louisiana statutes and the power of disposition possessed by each spouse. It noted that, while the husband is the manager of the affairs of the marital partnership, the limitations upon 196 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. the wrongful exercise of his power over community property are more stringent than in many other States. It concluded: “Inasmuch, therefore, as, in Louisiana, the wife has a present vested interest in community property equal to that of her husband, we hold that the spouses are entitled to file separate returns, each treating one-half of the community income as income of each ‘of’ them as an ‘individual’ as those words are used in §§ 210 (a) and 211 (a) of the Revenue Act of 1926.” 282 U. S., at 132. Two months later the Court arrived at the same conclusion with respect to California community property law and federal income tax under the 1928 Act, with the Government conceding the effectiveness, in this respect, of amendments made to the California statutes since the Robbins decision. United States v. Malcolm, 282 U. S. 792 (1931). Significantly, the Court there answered in the affirmative, citing Seaborn, Koch, and Bacon, the following certified question: “Has the wife under § 161 (a) of the Civil Code of California such an interest in the community income that she should separately report and pay tax on one-half of such income?” 282 U. S., at 794. This affirmative answer to a question phrased in terms of “should,” not “may,” clearly indicates that the wife had the obligation, not merely the right, to report half the community income. The federal courts since Malcolm consistently have held that the wife is required to report half the community income and that the husband is taxable only on the other half. Gilmore v. United States, 154 Ct. Cl. 365, 290 F. 2d 942 (1961), rev’d on other grounds, 372 U. S. 39 (1963); Van Antwerp v. United States, 92 F. 2d 871 (CA9 1937); Simmons v. Cullen, 197 F. Supp. 179 UNITED STATES v. MITCHELL 197 190 Opinion of the Court (ND Cal. 1961); Dillin v. Commissioner, 56 T. C. 228 (1971); Kimes v. Commissioner, 55 T. C. 774 (1971); Hill v. Commissioner, 32 T. C. 254 (1959); Hunt v. Commissioner, 22 T. C. 228 (1954); Freundlich v. Commissioner, T. C. Memo. 1955-177; Cavanagh v. Commissioner, 42 B. T. A. 1037, 1044 (1940), aff’d, 125 F. 2d 366 (CA9 1942). There were holdings from the Fifth Circuit to this apparent effect with respect to Louisiana taxpayers. Commissioner v. Hyman, 135 F. 2d 49, 50 (1943); Saenger v. Commissioner, 69 F. 2d 633 (1934); Smith v. Donnelly, 65 F. Supp. 415 (ED La. 1946). See Henderson’s Estate v. Commissioner, 155 F. 2d 310 (CA5 1946), and Gonzalez v. National Surety Corp., 266 F. 2d 667, 669 (CA5 1959). Thus, with respect to community income, as with respect to other income, federal income tax liability follows ownership. Blair v. Commissioner, 300 U. S. 5, 11-14 (1937). See Hoeper v. Tax Comm’n, 284 U. S. 206 (1931). In the determination of ownership, state law controls. “The state law creates legal interests but the federal statute determines when and how they shall be taxed.” Burnet v. Harmel, 287 U. S. 103, 110 (1932); Morgan v. Commissioner, 309 U. S. 78, 80-81 (1940); Helvering v. Stuart, 317 U. S. 154, 162 (1942); Commissioner v. Harmon, 323 U. S. 44, 50-51 (1944) (Douglas, J., dissenting); see Commissioner v. Estate of Bosch, 387 U. S. 456 (1967). The dates of the cited cases indicate that these principles are long established in the law of taxation. Ill This would appear to foreclose the issue for the present cases. Nevertheless, because respondents and the Court of Appeals stress the evanescent nature of the wife’s interest in community property in Louisiana, a review of the pertinent Louisiana statutes and decisions is perhaps in order. 198 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Every marriage contracted in Louisiana “superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary.” La. Civ. Code Ann., Art. 2399 (1971). “This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. . . .” Art. 2402. The debts contracted during the marriage “enter into the partnership or community of gains, and must be acquitted out of the common fund . . . .” Art. 2403. “The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.” Also “he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons.” Art. 2404. The same article, however, denies him the power of conveyance, “by a gratuitous title,” of community immovables, or of the whole or a quota of the movables, unless for the children; and if the husband has sold or disposed of the common property in fraud of the wife, she has an action against her husband’s heirs. At the dissolution of a marriage “all effects which both husband and wife reciprocally possess, are presumed common effects or gains . . . .” Art. 2405. At dissolution, “The effects which compose the partnership or community of gains, are divided into two equal portions UNITED STATES v. MITCHELL 199 190 Opinion of the Court between the husband and the wife, or between their heirs . . . .” Art. 2406. “It is understood that, in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution.” Art. 2409. Then the wife and her heirs or assigns may “exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.” Art. 2410. And the wife “who renounces, loses every sort of right to the effects of the partnership or community of gains” except that “she takes back all her effects, whether dotal or extradotal.” Art. 2411. The Louisiana court has described and forcefully stated the nature of the community interest. In Phillips v. Phillips, 160 La. 813, 825-826, 107 So. 584, 588 (1926), it was said: “The wife’s half interest in the community property is not a mere expectancy during the marriage; it is not transmitted to her by or in consequence of a dissolution of the community. The title for half of the community property is vested in the wife the moment it is acquired by the community or by the spouses jointly, even though it be acquired in the name of only one of them. . . . There are loose expressions, appearing in some of the opinions rendered by this court, to the effect that the wife’s half interest in the community property is only an expectancy, or a residuary interest, until the community is dissolved and liquidated. But that is contrary to the provisions of the Civil Code . . . and is contrary to the rule announced in every decision of this court since the error was first committed . . . .” 200 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Later, in Succession of Wiener, 203 La. 649, 14 So. 2d 475 (1943), a state inheritance tax case, the court, after referring to Arts. 2399 and 2402 of the Civil Code, said: “That this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired, is well settled in this state . . . .” “The conclusion we have reached in this case is in keeping with the decision of the United States Supreme Court in the case of Bender v. Pfaff, supra, where that court recognized that under the law of Louisiana the wife is not only vested with the ownership of half of the community property from the moment it is acquired, but is likewise the owner of half of the community income. . . 203 La., at 657 and 662, 14 So. 2d, at 477 and 479. After reviewing joint tenancy and tenancy by the entirety known to the common law, the court observed: “In Louisiana, the situation is entirely different, for here the civil law prevails, and the theory of the civil law is that the acquisition of all property during the marriage is due to the joint or common efforts, labor, industry, economy, and sacrifices of the husband and wife; in her station the wife is just as much an agency in acquiring this property as is her husband. In Louisiana, therefore, the wife’s rights in and to the community property do not rest upon the mere gratuity of her husband; they are just as great as his and are entitled to equal dignity. . . . She is the half-partner and owner of all acquisitions made during the existence of the community, whether they be property or income. . . . “It is true that in weaving this harmonious commercial partnership around the intimate and sacred marital relationship, the framers of our law and its UNITED STATES v. MITCHELL 201 190 Opinion of the Court codifiers saw fit, in their wisdom, to place the husband at the head of the partnership, but this did not in any way affect the status of the property or the wife’s ownership of her half thereof. . . . And the husband was made the managing partner of the community and charged with the administration of its effects, as well as with the alienation of its effects and revenues by onerous title, because he was deemed the best qualified to act.” 203 La., at 665-667, 14 So. 2d, at 480-481. The court then outlined in detail the various protections afforded by Louisiana law to the wife and concluded: “It is obvious, therefore, that the wife’s interest in the community property in Louisiana does not spring from any fiction of the law or from any gift or act of generosity on the part of her husband but, instead, from an express legal contract of partnership entered into at the time of the marriage. There is no substantial difference between her interest therein and the interest of an ordinary member of a limited or ordinary partnership, the control and management of whose affairs has, by agreement, been entrusted to a managing partner. The only real difference is that the limitations placed on the managing partner in the community partnership are fixed by law, while those placed on the managing partner in an ordinary or limited partnership are fixed by convention or contract.” 203 La., at 669, 14 So. 2d, at 481-482. The husband thus is the manager and agent of the Louisiana community, but his powers as manager do not serve to defeat the ownership rights of the wife. These principles repeatedly have found expression in Louisiana cases. United States Fidelity & Guaranty Co. v. Green, 252 La. 227, 232-233, 210 So. 2d 328, 330 202 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. (1968); Gebbia v. City of New Orleans, 249 La. 409, 415—416, 187 So. 2d 423, 425 (1966); Azar v. Azar, 239 La. 941, 946, 120 So. 2d 485, 487 (1960); Messersmith v. Messersmith, 229 La. 495, 507, 86 So. 2d 169, 173 (1956) ; Dixon n. Dixon’s Executors, 4 La. 188 (1832). This Court recognized these Louisiana community property principles in the Wiener estate’s federal estate tax litigation. Fernandez v. Wiener, 326 U. S. 340 (1945). There the inclusion in the decedent’s gross estate of the entire community property was upheld for purposes of the federal estate tax which is an excise tax. Mr. Chief Justice Stone noted the respective interests of the spouses when, in the following language, he spoke of the effect of death: “As we have seen, the death of the husband of the Louisiana marital community not only operates to transfer his rights in his share of the community to his heirs or those taking under his will. It terminates his expansive and sometimes profitable control over the wife’s share, and for the first time brings her half of the property into her full and exclusive possession, control and enjoyment. The cessation of these extensive powers of the husband, even though they were powers over property which he never ‘owned,’ and the establishment in the wife of new powers of control over her share, though it was always hers, furnish appropriate occasions for the imposition of an excise tax. “Similarly, with the death of the wife, her title or ownership in her share of the community property ends, and passes to her heirs or other appointees. More than this, her death, by ending the marital community, liberates her husband’s share from the restrictions which the existence of the community had placed upon his control of it. . . . UNITED STATES v. MITCHELL 203 190 Opinion of the Court “This redistribution of powers and restrictions upon power is brought about by death notwithstanding that the rights in the property subject to these powers and restrictions were in every sense ‘vested’ from the moment the community began. . . .” 326 U. 8., at 355-356. Thus the Louisiana statutes and cases also seem to foreclose the claims advanced by the respondents. IV Despite all this, despite the concession that the wife’s interest in the community property is not a mere expectancy,4 and despite the further concession that she has a vested title in, and is the owner of, a half share of the community income,5 respondents take the position that somehow the wife’s interest is insufficient to make her liable for federal income tax computed on that half of the community income. It is said that her right to renounce the community and to place herself in the same position as if it had never existed is substantive; that the wife is not personally liable for a community debt; that it is really the community as an entity, not the husband or the wife, that owns the property; and that Seaborn and its companion cases were concerned only with the right to split income, not with the obligation so to do. It is also said that the wife’s dominion over the community property is nonexistent in Louisiana; that the husband administers the community’s affairs as he sees fit; that he is not required to account to the wife, even for mismanagement, unless he enriches his estate at her expense by fraud; that she has no way to terminate the community other than by suit for separation, and then only 4Angello Brief 2. 5 Angello Brief 2, 9. 204 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. by showing mismanagement on his part that threatens her separate estate; that her status is imposed by law, as contrasted with a commercial partnership where status is consensual; that she has no legal right to obtain the information necessary to file a tax return or to obtain the funds with which to pay the tax; and that Robbins authorizes taxing the whole of the community income to the husband. The same arguments, however, were advanced in Seaborn, 282 U. S., at 103-105, and in its companion cases, 282 U. S., at 119, 123, and 128, and were unavailing there, 282 U. S., at 111-113. They do not persuade us here. Specifically, the power to renounce, granted by Article 2410, is of no comfort to the wife-taxpayer. As Judge Forrester aptly expressed it, 51 T. C., at 646, Mrs. Mitchell’s renunciation “came long after her liabilities for the annual income taxes here in issue had attached.” Further, “[t]his right of the wife to renounce or repudiate must not be misconstrued as an indication that she had never owned and possessed her share, for that fact was not denied; but she did have, under the principles of community property, the right to revoke her ownership and possession. . . .” 1 W. deFuniak, Principles of Community Property § 218, p. 621 (1943). The results urged by the respondents might follow, of course, in connection with a tax or other obligation the collection of which is controlled by state law. But an exempt status under state law does not bind the federal collector. Federal law governs what is exempt from federal levy. Section 6321 of the 1954 Code imposes a lien for the income tax “upon all property and rights to property . . . belonging to” the person liable for the tax. Section 6331 (a) authorizes levy “upon all property and rights to property . . . belonging to such person . . . .” What is exempt from levy is specified in § 6334 (a). Section UNITED STATES v. MITCHELL 205 190 Opinion of the Court 6334 (c) provides, “Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a).” This language is specific and it is clear and there is no room in it for automatic exemption of property that happens to be exempt from state levy under state law. United States v. Bess, 357 U. S. 51, 56-57 (1958); Shambaugh v. Scofield, 132 F. 2d 345 (CA5 1942); United States v. Heffron, 158 F. 2d 657 (CA9), cert, denied, 331 U. S. 831 (1947); Treas. Reg. § 301.6334-1 (c). See Birch v. Dodt, 2 Ariz. App. 228, 407 P. 2d 417 (1965). As a consequence, state law which exempts a husband’s interest in community property from his premarital debts does not defeat collection of his federal income tax liability for premarital tax years from his interest in the community. United States v. Overman, 424 F. 2d 1142, 1145 (CA9 1970); In re Ackerman, 424 F. 2d 1148 (CA9 1970). The result as to Mrs. Mitchell and Mrs. Angello is no different. It must be conceded that these cases are “hard” cases and exceedingly unfortunate for the two women taxpayers.6 Mrs. Mitchell loses the benefit of her inheritance from her mother, an inheritance that ripened after the dissolution of her marriage. Mrs. Angello loses her beneficiary interest in her deceased husband’s life insurance policy. This takes place with each wife not really aware of the community tax situation, and not really in a position to ascertain the details of the community income. The law, however, is clear. The taxes were due. They were not paid. Returns were not even filed. The “fault,” if fault there be, lies with the four taxpayers and flows from the settled principles of the community prop 6 Of course, as Baron Rolfe long ago observed, hard cases “are apt to introduce bad law.” Winterbottom v. Wright, 10 M. & W. 109, 116, 152 Eng. Rep. 402, 406 (1842). 427-293 0 - 72 - 17 206 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. erty system. If the wives were to prevail here, they would have the best of both worlds. The remedy is in legislation. An example is Pub. L. 91-679 of January 12, 1971, 84 Stat. 2063, adding to the Code subsection (e) of § 6013 and the final sentence of § 6653 (b). These amendments afford relief to an innocent spouse, who was a party to a joint return, with respect to omitted income and fraudulent underpayment. Relief of that kind is the answer to the respondents’ situation. The judgment in each case is reversed. It is so ordered. CONNELL v. HIGGINBOTHAM 207 Per Curiam CONNELL v. HIGGINBOTHAM et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA No. 79. Argued November 19, 1970—Decided June 7, 1971 Florida’s statutory loyalty oath provision requiring a Florida public employee as an employment condition to swear that he will support the Federal and State Constitutions is constitutionally valid. The portion of the oath requiring him to swear that he does not believe in the violent overthrow of the Federal or State Government is invalid as providing for his dismissal without hearing or inquiry required by due process. 305 F. Supp. 445, affirmed in part, reversed in part. Sanford, Jay Rosen argued the cause for appellant. With him on the brief were Tobias Simon and Melvin L. Wulf. Stephen Marc Slepin argued the cause for appellees. With him on the brief were Rivers Buford, Jr., and James W. Markel. Per Curiam. This is an appeal from an action commenced in the United States District Court for the Middle District of Florida challenging the constitutionality of §§ 876.05-876.10 of Fla. Stat. (1965), and the various loyalty oaths upon which appellant’s employment as a school teacher was conditioned. The three-judge U. S. District Court declared three of the five clauses contained in the oaths to be unconstitutional,* and enjoined the State from con- * The clauses declared unconstitutional by the court below required the employee to swear: (a) “that I am not a member of the Communist Party”; (b) “that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party”; and (c) “that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence.” 208 OCTOBER TERM, 1970 Per Curiam 403U.S. ditioning employment on the taking of an oath including the language declared unconstitutional. The appeal is from that portion of the District Court decision which upheld the remaining two clauses in the oath: I do hereby solemnly swear or affirm (1) “that I will support the Constitution of the United States and of the State of Florida”; and (2) “that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence.” On January 16, 1969, appellant made application for a teaching position with the Orange County school system. She was interviewed by the principal of Callahan Elementary School, and on January 27, 1969, appellant was employed as a substitute classroom teacher in the fourth grade of that school. Appellant was dismissed from her teaching position on March 18, 1969, for refusing to sign the loyalty oath required of all Florida public employees, Fla. Stat. § 876.05. The first section of the oath upheld by the District Court, requiring all applicants to pledge to support the Constitution of the United States and of the State of Florida, demands no more of Florida public employees than is required of all state and federal officers. U. S. Const., Art. VI, cl. 3. The validity of this section of the oath would appear settled. See Knight v. Board of Regents, 269 F. Supp. 339 (1967), aff’d per curiam, 390 U. S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (1967), aff’d per curiam, 390 U. S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (1969), aff’d per curiam, 397 U. S. 317 (1970). The second portion of the oath, approved by the District Court, falls within the ambit of decisions of this Court proscribing summary dismissal from public employment without hearing or inquiry required by due process. Slochower v. Board of Education, 350 U. S. 551 CONNELL v. HIGGINBOTHAM 209 207 Marshall, J., concurring in result (1956). Cf. Nostrand n. Little, 362 U. S. 474 (1960); Speiser v. Randall, 357 U. S. 513 (1958). That portion of the oath, therefore, cannot stand. Affirmed in part, and reversed in part. Mr. Justice Marshall, with whom Mr. Justice Douglas and Mr. Justice Brennan join, concurring in the result. I agree that Florida may require state employees to affirm that they “will support the Constitution of the United States and of the State of Florida.” Such a for-ward-looking, promissory oath of constitutional support does not in my view offend the First Amendment’s command that the grant or denial of governmental benefits cannot be made to turn on the political viewpoints or affiliations of a would-be beneficiary. I also agree that Florida may not base its employment decisions, as to state teachers or any other hiring category, on an applicant’s willingness vel non to affirm “that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence.” However, in striking down the latter oath, the Court has left the clear implication that its objection runs, not against Florida’s determination to exclude those who “believe in the overthrow,” but only against the State’s decision to regard unwillingness to take the oath as conclusive, irrebuttable proof of the proscribed belief. Due process may rightly be invoked to condemn Florida’s mechanistic approach to the question of proof. But in my view it simply does not matter what kind of evidence a State can muster to show that a job applicant “believe [s] in the overthrow.” For state action injurious to an individual cannot be justified on account of the nature of the individual’s beliefs, whether he “believe [s] in the overthrow” or has any other sort of belief. “If 210 OCTOBER TERM, 1970 Opinion of Stewart, J. 403 U. S. there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . .” Board of Education v. Barnette, 319 U. S. 624, 642 (1943). I would strike down Florida’s “overthrow” oath plainly and simply on the ground that belief as such cannot be the predicate of governmental action. Mr. Justice Stewart, concurring in part and dissenting in part. The Court upholds as clearly constitutional the first clause of the oath as it comes to us from the three-judge District Court: “I will support the Constitution of the United States and of the State of Florida . . . .” With this ruling I fully agree. As to the second contested clause of the oath, “I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence,” I would remand to the District Court to give the parties an opportunity to get from the state courts an authoritative construction of the meaning of the clause. If the clause embraces the teacher’s philosophical or political beliefs, I think it is constitutionally infirm. Baird v. State Bar of Arizona, 401 U. S. 1, 9-10 (concurring opinion); Board of Education v. Barnette, 319 U. S. 624, 642; Cantwell v. Connecticut, 310 U. S. 296, 303-304. If, on the other hand, the clause does no more than test whether the first clause of the oath can be taken “without mental reservation or purpose of evasion,” I think it is constitutionally valid. Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U. S. 154, 163-164. The Florida courts should, therefore, be given an opportunity to construe the clause before the federal courts pass on its constitutionality. CONNELL v. HIGGINBOTHAM 211 207 Opinion of Stewart, J. See Fornaris v. Ridge Tool Co., 400 U. S. 41, 43-44; Reetz v. Bozanich, 397 U. S. 82, 85-87; Railroad Comm’n n. Pullman Co., 312 U. S. 496, 498-501. The Supreme Court of Florida has explicitly held that the various clauses of the oath are severable. Cramp n. Board of Public Instruction, 137 So. 2d 828, 830-831. 212 OCTOBER TERM, 1970 Per Curiam 403 U. S. JOHNSON v. MISSISSIPPI CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI No. 5485. Argued April 21, 1971—Decided June 7, 1971 In a charge of criminal contempt against petitioner which arose from petitioner’s alleged violation of courtroom procedure during an earlier criminal trial where it is not clear from the record that the judge was personally aware of the contemptuous action when it occurred, petitioner should be provided a fair hearing with an opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete. And where a motion that trial judge recuse himself was supported by lawyers’ affidavits that the judge had revealed deep prejudice against civil rights workers, and the judge was a losing defendant in a civil rights suit brought by petitioner, he should have recused himself from trying the charge. 233 So. 2d 116, reversed and remanded. Stephen W. Porter argued the cause for petitioner. With him on the brief was Richard B. Ruge. G. Garland Lyell, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was A. F. Summer, Attorney General. Per Curiam. Petitioner, a defendant in a criminal proceeding in the Circuit Court of Grenada County, Mississippi, was summarily convicted of criminal contempt by Judge Marshall Perry of that court. The alleged contempt occurred on January 23, 1967. It occurred after Judge Perry directed the bailiffs and deputies to keep all people entering the courtroom from walking between the space reserved for jurors and county officers and the judge, while jurors were being called. A deputy attempted to route petitioner around the area JOHNSON V. MISSISSIPPI 213 212 Per Curiam in question whereupon, according to the orders adjudging petitioner in contempt, he said: “What the Hell do you mean go around. “Said Johnson, defendant, then continued to stand and look around over the room, disrupting the court proceedings.” Judge Perry, however, did not take instant action on the alleged contempt but only had petitioner removed from the courtroom. The next day, January 24, he ordered that process issue against petitioner directing him to appear February 1, 1967, an action he later rescinded. On January 27, 1967, petitioner, an active civil rights worker, asked through his attorney that Judge Perry recuse himself, asserting: “a. That Judge Perry is personally prejudiced against the defendant and against the civil rights organizations he represents. “b. That Judge Perry is personally prejudiced against the lawyers’ organization defending Mr. Johnson, namely the Lawyers’ Committee For Civil Rights Under Law.” The motion was supported by two affidavits of lawyers that Judge Perry, through charges made to grand juries in his courtroom, revealed deep prejudice against civil rights workers and civil rights lawyers. No hearing was ever granted on that motion. When petitioner was removed from the courtroom on January 23, 1967, his lawyer, one Rowe, objected to Judge Perry’s action. Judge Perry ordered Rowe arrested and charged with criminal contempt. On January 31, 1967, a federal court in Mississippi issued a temporary restraining order enjoining trial of the contempt charge against Rowe; and we are advised that that charge has never been further prosecuted. 214 OCTOBER TERM, 1970 Per Curiam 403 U. S. On February 1, 1967, petitioner filed a petition for removal of the contempt proceedings in his case to the federal court. On November 14, 1968, that court remanded the case to Judge Perry’s court. Thereupon Judge Perry ordered that a $1,000 bond be posted guaranteeing petitioner’s -appearance on January 27, 1969, to answer the contempt charge. On January 22, 1969, petitioner and others filed suit in the federal court to enjoin trials of either Negroes or women in the Circuit Court of Grenada County until such time as Negroes and women were not systematically excluded from juries. Judge Perry was named as a defendant. The federal court held a hearing on January 24, 1969, and on January 25, 1969, temporarily enjoined Judge Perry from discrimination “by reason of race, color, or sex” in jury selections. Two days later, January 27,1969, Judge Perry adjudged petitioner in contempt and sentenced him to four months and set bail at $2,000 pending appeal. He denied petitioner’s request for a hearing on the merits and for an opportunity to show why Judge Perry should recuse himself. On appeal the Supreme Court of Mississippi affirmed the contempt but reduced the sentence to one month. 233 So. 2d 116. The case is here on a petition for a writ of certiorari which we granted. 400 U. S. 991. Instant action may be necessary where the misbehavior is in the presence of the judge and is known to him, and where immediate corrective steps are needed to restore order and maintain the dignity and authority of the court. Cooke v. United States, 267 U. S. 517, 534; Harris v. United States, 382 U. S. 162, 165. The contempt power is within the judge’s “arsenal of authority” which we recently described in Illinois n. Allen, 397 U. S. 337. But there was no instant action here, a week expiring before removal of the case to the federal court was sought. JOHNSON V. MISSISSIPPI 215 212 Per Curiam Moreover, from this record we cannot be sure that Judge Perry was personally aware of the contemptuous action when it occurred. The State’s version of what happened is described as follows in its motion that petitioner show cause why he should not be punished for contempt: “[T]he Sheriff and Deputy Sheriff, Howard Hayward seized Robert Johnson and immediately carried him before the Circuit Judge, Marshall Perry, and related to the Judge what had transpired.” (Italics added.) As we said in In re Oliver, 333 U. S. 257, 275-276, “If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires . . . that the accused be accorded notice and a fair hearing And see In re Savin, 131 U. S. 267, 277. It would, therefore, seem that a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete. We mention this latter point because our remand will entail a hearing before another judge. In concluding that Judge Perry should have recused himself, we do not rely solely on the affidavits filed by the lawyers reciting intemperate remarks of Judge Perry concerning civil rights litigants. Beyond all that was the fact that Judge Perry immediately prior to the adjudication of contempt was a defendant in one of petitioner’s civil rights suits and a losing party at that. From that it is plain that he was so enmeshed in matters involving petitioner as to make it most appropriate for another judge 216 OCTOBER TERM, 1970 Per Curiam 403 U. S. to sit. Trial before “an unbiased judge” is essential to due process. Bloom v. Illinois, 391 U. S. 194, 205; Mayberry v. Pennsylvania, 400 U. S. 455, 465. We accordingly reverse the judgment below and remand the case for proceedings not inconsistent with this opinion. Reversed and remanded. PALMER V. THOMPSON 217 Syllabus PALMER et al. v. THOMPSON, MAYOR OF THE CITY OF JACKSON, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 107. Argued December 14, 1970—Decided June 14, 1971 Following the Court of Appeals’ affirmance of a District Court judgment invalidating enforced segregation on equal protection grounds, the city council of Jackson, Mississippi, desegregated its public recreational facilities, including its five public parks, except for their swimming pools. Stating that the pools could not be operated safely and economically on an integrated basis, the council closed four city-owned pools and surrendered its lease on a fifth, which the lessor, the YMCA, continued to operate for whites only. Petitioners, Negro citizens of Jackson, then brought this action, mainly on equal protection grounds, to force the city to reopen and operate the pools on a desegregated basis. The District Court held that there was no denial of equal protection. The Court of Appeals affirmed, rejecting the contention that since the pools had been closed to avoid desegregation there was a denial of equal protection. Held: 1. The closing of the pools to all persons did not constitute a denial of equal protection of the laws under the Fourteenth Amendment to the Negroes. Pp. 219-226. (a) This case is distinguishable from Griffin v. County School Board of Prince Edward County, 377 U. S. 218, and Reitman v. Mulkey, 387 U. S. 369, on both of which petitioners rely. In Griffin there were many facets of state involvement in the segregated operation of “private” schools; here there is no city involvement in the operation or funding of any pool. In Reitman the evidence was deemed sufficient to show that the State, by enacting a constitutional amendment establishing the right of private persons to discriminate in realty transactions, thereby repealing two housing anti-discrimination laws, was abetting refusal to rent apartments on racial grounds; here there was no evidence that the city conspired with the YMCA that its pool be segregated. Pp. 221-224. (b) In this case, where there was substantial evidence to support the council’s stated reason for closing the pools and there 218 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. was no evidence of state action affecting Negroes differently from whites, petitioners’ contention that equal protection requirements were violated because the pool-closing decision was motivated by anti-integration considerations, must also fail since courts will not invalidate legislation based solely on asserted illicit motivation by the enacting legislative body. Pp. 224-226. 2. The city council’s action in closing the pools instead of keeping them open on an integrated basis did not create a “badge or incident” of slavery in violation of the Thirteenth Amendment. Pp. 226-227. 419 F. 2d 1222, affirmed. Black, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Burger, C. J., post, p. 227, and Blackmun, J., post, p. 228, filed concurring opinions. Douglas, J., filed a dissenting opinion, post, p. 231. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 240. Marshall, J., filed a dissenting opinion, in which Brennan and White, JJ., joined, post, p. 271. Paul A. Rosen and William M. Kunstler argued the cause for petitioners. With them on the briefs were Ernest Goodman and Arthur Kinoy. William F. Goodman, Jr., argued the cause for respondents. On the brief were John E. Stone, Thomas H. Watkins, and Elizabeth W. Grayson. Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Leonard, and Deputy Solicitor General Wallace for the United States, and by Armand Derjner for James Moore et al. Mr. Justice Black delivered the opinion of the Court. In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District PALMER V. THOMPSON 219 217 Opinion of the Court Court seeking a declaratory judgment that this state-enforced segregation of the races was a violation of the Thirteenth and Fourteenth Amendments, and asking an injunction to forbid such practices. After hearings the District Court entered a judgment declaring that enforced segregation denied equal protection of the laws but it declined to issue an injunction? The Court of Appeals affirmed, and we denied certiorari? The city proceeded to desegregate its public parks, auditoriums, golf courses, and the city zoo. However, the city council decided not to try to operate the public swimming pools on a desegregated basis. Acting in its legislative capacity, the council surrendered its lease on one pool and closed four which the city owned. A number of Negro citizens of Jackson then filed this suit to force the city to reopen the pools and operate them on a desegregated basis. The District Court found that the closing was justified to preserve peace and order and because the pools could not be operated economically on an integrated basis? It held the city’s action did not deny black citizens equal protection of the laws. The Court of Appeals sitting en banc affirmed, six out of 13 judges dissenting? That court rejected the contention that since the pools had been closed either in whole or in part to avoid desegregation the city council’s action was a denial of equal protection of the laws. We granted certiorari to decide that question. We affirm. I Petitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to “deny to any person within its jurisdiction the equal protection 1 Clark v. Thompson, 206 F. Supp. 539 (SD Miss. 1962). 2313 F. 2d 637 (CA5), cert, denied, 375 U. S. 951 (1963). 3 The court’s opinion is not officially reported. 4 419 F. 2d 1222 (CA5 1969). 220 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. of the laws.” There can be no doubt that a major purpose of this amendment was to safeguard Negroes against discriminatory state laws—state laws that fail to give Negroes protection equal to that afforded white people. History shows that the achievement of equality for Negroes was the urgent purpose not only for passage of the Fourteenth Amendment but for the Thirteenth and Fifteenth Amendments as well. See, e. g., Slaughter-House Cases, 16 Wall. 36, 71-72 (1873). Thus the Equal Protection Clause was principally designed to protect Negroes against discriminatory action by the States. Here there has unquestionably been “state action” because the official local government legislature, the city council, has closed the public swimming pools of Jackson. The question, however, is whether this closing of the pools is state action that denies “the equal protection of the laws” to Negroes. It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to operate or to continue to operate swimming pools. Furthermore, this is not a case where whites are permitted to use public facilities while blacks are denied access. It is not a case where a city is maintaining different sets of facilities for blacks and whites and forcing the races to remain separate in recreational or educational activities.5 See, e. g., Watson v. City of Memphis, 373 U. S. 526 (1963); Brown v. Board of Education, 347 U. S. 483 (1954). Unless, therefore, as petitioners urge, certain past cases require us to hold that closing the pools to all denied 5 My Brother White’s dissent suggests that the pool closing operates unequally on white and blacks because, “The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.” Post, at 269. It is difficult to see the force of this argument since Jackson has desegregated its public parks, auditoriums, golf courses, city zoo, and the record indicates it now maintains no segregated public facilities. PALMER V. THOMPSON 221 217 Opinion of the Court equal protection to Negroes, we must agree with the courts below and affirm. II Although petitioners cite a number of our previous cases, the only two which even plausibly support their argument are Griffin v. County School Board of Prince Edward County, 377 U. S. 218 (1964), and Reitman v. Mulkey, 387 U. S. 369 (1967). For the reasons that follow, however, neither case leads us to reverse the judgment here.6 A. In Griffin the public schools of Prince Edward County, Virginia, were closed under authority of state and county law, and so-called “private schools” were set up in their place to avoid a court desegregation order. At the same time, public schools in other counties in Virginia remained open. In Prince Edward County the “private schools” were open to whites only and these schools were in fact run by a practical part 6 Bush v. Orleans Parish School Board, 187 F. Supp. 42 (ED La. 1960), aff’d, 365 U. S. 569 (1961), does not lead us to reverse the judgment here. In Bush we wrote no opinion but merely affirmed a lower federal court judgment that held unconstitutional certain laws designed to perpetuate segregation in the Louisiana public schools. One law held unconstitutional by the lower court empowered the State Governor to close any school ordered to integrate; another empowered him to close all state schools if one were integrated. Of course that case did not involve swimming pools but rather public schools, an enterprise we have described as “perhaps the most important function of state and local governments.” Brown n. Board of Education, supra, at 493. More important, the laws struck down in Bush were part of an elaborate package of legislation through which Louisiana sought to maintain public education on a segregated basis, not to end public education. See also Bush v. Orleans Parish School Board, 188 F. Supp. 916 (ED La. 1960). Of course there was no serious problem of probing the motives of a legislature in Bush because most of the Louisiana statutes explicitly stated they were designed to forestall integrated schools. 187 F. Supp., at 45. 427-293 0 - 72 - 18 222 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. nership between State and county, designed to preserve segregated education. We pointed out in Griffin the many facets of state involvement in the running of the “private schools.” The State General Assembly had made available grants of $150 per child to make the program possible. This was supplemented by a county grant program of $100 per child and county property tax credits for citizens contributing to the “private schools.” Under those circumstances we held that the closing of public schools in just one county while the State helped finance “private schools” was a scheme to perpetuate segregation in education which constituted a denial of equal protection of the laws. Thus the Griffin case simply treated the school program for what it was—an operation of Prince Edward County schools under a thinly disguised “private” school system actually planned and carried out by the State and the county to maintain segregated education with public funds. That case can give no comfort to petitioners here. This record supports no intimation that Jackson has not completely and finally ceased running swimming pools for all time. Unlike Prince Edward County, Jackson has not pretended to close public pools only to run them under a “private” label. It is true that the Leavell Woods pool, previously leased by the city from the YMCA, is now run by that organization and appears to be open only to whites. And according to oral argument, another pool owned by the city before 1963 is now owned and operated by Jackson State College, a predominantly black institution, for college students and their guests.7 But unlike the “private schools” in Prince Edward County there is nothing here to show the city is directly or indirectly involved in the funding or operation of either pool.8 If the time ever 7 Tr. of Oral Arg. 31-32. 8 There is no question before us here whether the black citizens of Jackson may be entitled to utilize the swimming facilities of Leavell PALMER V. THOMPSON 223 217 Opinion of the Court comes when Jackson attempts to run segregated public pools either directly or indirectly, or participates in a subterfuge whereby pools are nominally run by “private parties” but actually by the city, relief will be available in the federal courts. B. Petitioners also claim that Jackson’s closing of the public pools authorizes or encourages private pool owners to discriminate on account of race and that such “encouragement” is prohibited by Reitman v. Mulkey, supra. In Reitman, California had repealed two laws relating to racial discrimination in the sale of housing by passing a constitutional amendment establishing the right of private persons to discriminate on racial grounds in real estate transactions. This Court there accepted what it designated as the holding of the Supreme Court of California, namely that the constitutional amendment was an official authorization of racial discrimination which significantly involved the State in the discriminatory acts of private parties. 387 U. S., at 376-378, 380-381. In the first place there are no findings here about any state “encouragement” of discrimination, and it is not clear that any such theory was ever considered by the District Court. The implication of petitioners’ argument appears to be that the fact the city turned over to the YMCA a pool it had previously leased is sufficient to show automatically that the city has conspired with the YMCA to deprive Negroes of the opportunity to swim in integrated pools. Possibly in a case where the city and the YMCA were both parties, a court could find that the city engaged in a subterfuge, and that liability could be fastened on it as an active participant Woods pool. Nothing on the present record indicates state involvement in the running of that pool. The YMCA, which apparently now operates the pool, was not joined as a party and thus, of course, no judgment could be entered against it. 224 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. in a conspiracy with the YMCA. We need not speculate upon such a possibility, for there is no such finding here, and it does not appear from this record that there was evidence to support such a finding. Reitman v. Mulkey was based on a theory that the evidence was sufficient to show the State was abetting a refusal to rent apartments on racial grounds. On this record, Reitman offers no more support to petitioners than does Griffin. Ill Petitioners have also argued that respondents’ action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher n. Peck, 6 Cranch 87, 130 (1810), where the Court declined to set aside the Georgia Legislature’s sale of lands on the theory that its members were corruptly motivated in passing the bill. A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States n. O’Brien, 391 U. S. 367, 383 (1968), where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Id., at 383, 384. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swim PALMER v. THOMPSON 225 217 Opinion of the Court ming pools. Some evidence in the record appears to support this argument. On the other hand the courts below found that the pools were closed because the city council felt they could not be operated safely and economically on an integrated basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for any court to determine the “sole” or “dominant” motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons. It is true there is language in some of our cases interpreting the Fourteenth and Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. Griffin v. County School Board, supra; Gomillion v. Lightfoot, 364 U. S. 339, 347 (1960). But the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. In Griffin, as discussed supra, the State was in fact perpetuating a segregated public school system by financing segregated “private” academies. And in Gomillion the Alabama Legislature’s gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites. 226 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Petitioners have argued strenuously that a city’s possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action. This proposition is, of course, true. Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. Buchanan v. Warley, 245 U. S. 60 (1917); Cooper v. Aaron, 358 U. S. 1 (1958); Watson v. City of Memphis, 373 U. S. 526 (1963). But the issue here is whether black citizens in Jackson are being denied their constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of 1 ‘the equal protection of the laws.” IV Finally, some faint and unpersuasive argument has been made by petitioners that the closing of the pools violated the Thirteenth Amendment which freed the Negroes from slavery. The argument runs this way: The first Mr. Justice Harlan’s dissent in Plessy v. Ferguson, 163 U. S. 537, 552 (1896), argued strongly that the purpose of the Thirteenth Amendment was not only to outlaw slavery but also all of its “badges and incidents.” This broad reading of the amendment was affirmed in Jones v. Alfred, H. Mayer Co., 392 U. S. 409 (1968). The denial of the right of Negroes to swim in pools with white people is said to be a “badge or incident” of slavery. Consequently, the argument seems to run, this Court should declare that the city’s closing of the pools to keep the two races from swimming together violates the Thirteenth Amendment. To reach that result from the Thirteenth Amendment would severely stretch its short simple words and do violence to its history. Establish PALMER V. THOMPSON 227 217 Burger, C. J., concurring ing this Court’s authority under the Thirteenth Amendment to declare new laws to govern the thousands of towns and cities of the country would grant it a law-making power far beyond the imagination of the amendment’s authors. Finally, although the Thirteenth Amendment is a skimpy collection of words to allow this Court to legislate new laws to control the operation of swimming pools throughout the length and breadth of this Nation, the Amendment does contain other words that we held in Jones v. Alfred H. Mayer Co. could empower Congress to outlaw “badges of slavery.” The last sentence of the Amendment reads: “Congress shall have power to enforce this article by appropriate legislation.” But Congress has passed no law under this power to regulate a city’s opening or closing of swimming pools or other recreational facilities. It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to build and operate swimming pools for the public. Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group because of color and supplied to another, they will be entitled to relief. But that is not the case here. The judgment is Affirmed. Mr. Chief Justice Burger, concurring. I join the opinion of Mr. Justice Black, but add a brief comment. The elimination of any needed or useful public ac 228 OCTOBER TERM, 1970 Blackmun, J., concurring 403 U. S. commodation or service is surely undesirable and this is particularly so of public recreational facilities. Unfortunately the growing burdens and shrinking revenues of municipal and state governments may lead to more and more curtailment of desirable services. Inevitably every such constriction will affect some groups or segments of the community more than others. To find an equal protection issue in every closing of public swimming pools, tennis courts, or golf courses would distort beyond reason the meaning of that important constitutional guarantee. To hold, as petitioners would have us do, that every public facility or service, once opened, constitutionally “locks in” the public sponsor so that it may not be dropped (see the footnote to Mr. Justice Blackmun’s concurring opinion), would plainly discourage the expansion and enlargement of needed services in the long run. We are, of course, not dealing with the wisdom or desirability of public swimming pools; we are asked to hold on a very meager record that the Constitution requires that public swimming pools, once opened, may not be closed. But all that is good is not commanded by the Constitution and all that is bad is not forbidden by it. We would do a grave disservice, both to elected officials and to the public, were we to require that every decision of local governments to terminate a desirable service be subjected to a microscopic scrutiny for forbidden motives rendering the decision unconstitutional. Mr. Justice Blackmun, concurring. I, too, join Mr. Justice Black’s opinion and the judgment of the Court. Cases such as this are “hard” cases for there is much to be said on each side. In isolation this litigation may PALMER V. THOMPSON 229 217 Blackmun, J., concurring not be of great importance; however, it may have significant implications. The dissent of Mr. Justice White rests on a conviction that the closing of the Jackson pools was racially motivated, at least in part, and that municipal action so motivated is not to be tolerated. That dissent builds to its conclusion with a detailed review of the city’s and the State’s official attitudes of past years. Mr. Justice Black’s opinion stresses, on the other hand, the facially equal effect upon all citizens of the decision to discontinue the pools. It also emphasizes the difficulty and undesirability of resting any constitutional decision upon what is claimed to be legislative motivation. I remain impressed with the following factors: (1) No other municipal recreational facility in the city of Jack-son has been discontinued. Indeed, every other service— parks, auditoriums, golf courses, zoo—that once was segregated, has been continued and operates on a nonsegregated basis. One must concede that this was effectuated initially under pressure of the 1962 declaratory judgment of the federal court. (2) The pools are not part of the city’s educational system. They are a general municipal service of the nice-to-have but not essential variety, and they are a service, perhaps a luxury, not enjoyed by many communities. (3) The pools had operated at a deficit. It was the judgment of the city officials that these deficits would increase. (4)1 cannot read into the closing of the pools an official expression of inferiority toward black citizens, as Mr. Justice White and those who join him repetitively assert, post, at 240-241, 266, and 268, and certainly on this record I cannot perceive this to be a “fact” or anything other than speculation. Furthermore, the alleged deterrent to relief, said to exist because of the risk of losing other public facilities, post, at 269, 230 OCTOBER TERM, 1970 Blackmun, J., concurring 403 U. S. is not detectable here in the face of the continued and desegregated presence of all other recreational facilities provided by the city of Jackson. (5) The response of petitioners’ counsel at oral argument to my inquiry* whether the city was to be “locked in” with its pools for an indefinite time in the future, despite financial loss of whatever amount, just because at one time the pools of Jackson had been segregated, is disturbing. There are, of course, opposing considerations enumerated in the two dissenting opinions. As my Brothers Black, Douglas, and White all point out, however, the Court’s past cases do not precisely control this one, and the present case, if reversed, would take us farther than any before. On balance, in the light of the factors I have listed above, my judgment is that this is neither the time nor the occasion to be punitive toward Jackson for its past constitutional sins of segregation. On the record as presented to us in this case, I therefore vote to affirm. *“Q. Mr. Rosen, if you were to prevail here, would the city of Jackson be locked in to operating the pools irrespective of the economic consequences of that operation? “A. If the question is forever. If it was purely an economic problem, having nothing to do with race, or opposition to integration, they could handle that problem the way any community handles that problem, if it is purely an economic decision. But if it becomes a consideration of race, which creates the economic difficulties, then it seems to me that this Court in numerous decisions has answered that question. It answered it in Watson, it answered it in Brown, and it answered it in Green. “Q. Well, this is in the premise of my question, for you to prevail here, this racial overtone, I will assume, you must concede must be present. Now suppose you prevail, and suppose they lose economically year after year by increasing amounts. My question is, are they locked in forever? “A. If the question is, are they locked in forever because of racial problems which cause a rise in economic difficulties in operating the pool, my answer is that they would be locked in.” Tr. of Oral Arg. 43-44. PALMER V. THOMPSON 231 217 Douglas, J., dissenting Mr. Justice Douglas, dissenting. Jackson, Mississippi, closed all the swimming pools owned and operated by it, following a judgment of the Court of Appeals in Clark v. Thompson, 313 F. 2d 637, which affirmed the District Court’s grant of a declaratory judgment that three Negroes were entitled to the desegregated use of the city’s swimming pools. 206 F. Supp. 539. No municipal swimming facilities have been opened to any citizen of either race since that time; and the city apparently does not intend to reopen the pools on an integrated basis. That program is not, however, permissible if it denies rights created or protected by the Constitution. Buchanan v. Warley, 245 U. S. 60, 81. I think that the plan has that constitutional defect; and that is the burden of this dissent. Hunter v. Erickson, 393 U. S. 385, Reitman v. Mulkey, 387 U. S. 369, and Griffin v. County School Board, 377 U. S. 218, do not precisely control the present case. They are different because there state action perpetuated ongoing regimes of racial discrimination in which the State was implicated. In Griffin, the State closed public schools in one county only, not in the others, and meanwhile contributed to the support of private segregated white schools. 377 U. S., at 232. That, of course, was a continuation of segregation in another form. In Hunter a city passed a housing law which provided that before an ordinance regulating the sale or lease of realty on the basis of race could become effective it had to be approved by a majority vote. Thus the protection of minority interests became much more difficult.1 We held that a state agency 1 James v. Valtierra, 402 U. S. 137, undertook to distinguish Hunter on the ground that the California referendum on low-rent housing which submitted the issue to majority vote was “neutral on 232 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. could not in its voting scheme so disadvantage Negro interests. In Reitman the State repealed legislation prohibiting racial discrimination in housing, thus encouraging racial discrimination in the housing market. 387 U. S., at 376. Whether, in the closing of all municipal swimming pools in Jackson, Mississippi, any artifices and devices were employed as in Burton v. Wilmington Parking Authority, 365 U. S. 715, to make the appearance not conform to the reality, is not shown by this record. Under Burton, if the State has a continuing connection with a swimming pool, it becomes a public facility and the State is under obligation to see that the operators meet all Fourteenth Amendment responsibilities. 365 U. S., at 725. We may not reverse under Burton because we do not know what the relevant facts are. Closer in point is Bush v. Orleans Parish School Board, 187 F. Supp. 42, aff’d, 365 U. S. 569. Louisiana, as part of her strategy to avoid a desegregated public school system, authorized the Governor to close any public school ordered to be integrated. The three-judge District Court relying on Cooper v. Aaron, 358 U. S. 1, 17, held that the Act was unconstitutional and enjoined the Governor from enforcing it. The District Court decision was so clearly correct that we wrote no opinion when we affirmed the three-judge court. While there were other Louisiana laws also held unconstitutional as perpetuating a state segregated school system, the one giving the Governor the right to close any public school ordered integrated seems indistinguishable from this one. its face” and not “aimed at a racial minority.” The regime of Hunter, therefore, remains undisturbed. Yet there was no answer to the claim that a referendum solely for housing for the poor violates the Equal Protection Clause. However that may be, in the instant case the target was not the poor, but a racial minority. PALMER V. THOMPSON 233 217 Douglas, J., dissenting May a State in order to avoid integration of the races abolish all of its public schools? That would dedicate the State to backwardness, ignorance, and existence in a new Dark Age. Yet is there anything in the Constitution that says that a State must have a public school system? Could a federal court enjoin the dismantling of a public school system? Could a federal court order a city to levy the taxes necessary to construct a public school system? Such supervision over municipal affairs by federal courts would be a vast undertaking, conceivably encompassing schools, parks, playgrounds, civic auditoriums, tennis courts, athletic fields, as well as swimming pools. My conclusion is that the Ninth Amendment has a bearing on the present problem. It provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights. Such is the right to travel from State to State. United States v. Guest, 383 U. S. 745, 758. Such is also the right to marry. Loving n. Virginia, 388 U. S. 1, 12. The “rights” retained by the people within the meaning of the Ninth Amendment may be related to those “rights” which are enumerated in the Constitution. Thus the Fourth Amendment speaks of the “right of the people to be secure in their persons, houses, papers, and effects” and protects it by well-known procedural devices. But we have held that that enumerated “right” also has other facets commonly summarized in the concept of privacy. Griswold v. Connecticut, 381 U. S. 479. There is, of course, not a word in the Constitution, unlike many modern constitutions, concerning the right of 234 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U.S. the people to education or to work or to recreation by swimming or otherwise. Those rights, like the right to pure air and pure water, may well be rights “retained by the people” under the Ninth Amendment. May the people vote them down as well as up? A State may not, of course, interfere with interstate commerce; and to the extent that public services are rendered by interstate agencies the State by reason of the Supremacy Clause is powerless to escape. The right to vote is a civil right guaranteed by the Constitution as we recently re-emphasized in Oregon v. Mitchell, 400 U. S. 112. In Anderson v. Martin, 375 U. S. 399, the State required designation on the ballots of every candidate’s race. We said: “In the abstract, Louisiana imposes no restriction upon anyone’s candidacy nor upon an elector’s choice in the casting of his ballot. But by placing a racial label on a candidate at the most crucial stage in the electoral process—the instant before the vote is cast—the State furnishes a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another. This is true because by directing the citizen’s attention to the single consideration of race or color, the State indicates that a candidate’s race or color is an important—perhaps paramount—consideration in the citizen’s choice, which may decisively influence the citizen to cast his ballot along racial lines.” 375 U. S., at 402. A constitutional right cannot be so burdened. We stated in West Virginia State Board of Education v. Barnette, 319 U. S. 624, 638, that: “One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” And we added in Lucas v. Colorado General Assembly, 377 U. S. 713, 736-737, “A citi- PALMER V. THOMPSON 235 217 Douglas, J., dissenting zen’s constitutional rights can hardly be infringed simply because a majority of the people choose that [they] be.” Thus the right of privacy, which we honored in Griswold, may not be overturned by a majority vote at the polls, short of a constitutional amendment. In determining what municipal services may not be abolished the Court of Appeals drew the line between “an essential public function” and other public functions. Whether state constitutions draw that line is not our concern. Certainly there are no federal constitutional provisions which make that distinction. Closing of the pools probably works a greater hardship on the poor than on the rich; and it may work greater hardship on poor Negroes than on poor whites, a matter on which we have no light. Closing of the pools was at least in part racially motivated. And, as stated by the dissenters in the Court of Appeals: “The closing of the City’s pools has done more than deprive a few thousand Negroes of the pleasures of swimming. It has taught Jackson’s Negroes a lesson: In Jackson the price of protest is high. Negroes there now know that they risk losing even segregated public facilities if they dare to protest segregation. Negroes will now think twice before protesting segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether, and at the same time engendering further animosity from a white community which has lost its public facilities also through the Negroes’ attempts to desegregate these facilities. “The long-range effects are manifold and far-reaching. If the City’s pools may be eliminated from the public domain, parks, athletic activities, and libraries also may be closed. No one can say 236 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. how many other cities may also close their pools or other public facilities. The City’s action tends to separate the races, encourage private discrimination, and raise substantial obstacles for Negroes asserting the rights of national citizenship created by the Wartime Amendments.” 419 F. 2d 1222, 1236. That view has strong footing in our decisions. “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Loving v. Virginia, 388 U. S., at 10. Cf. McLaughlin v. Florida, 379 U. S. 184, 196. When the effect is “to chill the assertion of constitutional rights by penalizing those who choose to exercise them” {United States v. Jackson, 390 U. S. 570, 581) that state action is “patently unconstitutional.” While Chief Justice Marshall intimated in Fletcher v. Peck, 6 Cranch 87, 130, that the motives which dominate or influence legislators in enacting laws are not fit for judicial inquiry, we do look closely at the thrust of a law to determine whether in purpose or effect there was an invasion of constitutional rights. See Epperson n. Arkansas, 393 U. S. 97, 109; Griffin v. County School Board, 377 U. S., at 231. A candidate may be defeated because the voters are bigots. A racial issue may inflame a community causing it to vote a humane measure down. The federal judiciary cannot become involved in those kinds of controversies. The question for the federal judiciary is not what the motive was, but what the consequences are. In Reitman an active housing program had been racially dominated and then controlled by a state law ending discrimination. But in time the State reversed its policy and lifted the anti-discrimination controls. Thus it launched or at least tolerated a regime of racially discriminatory housing. PALMER V. THOMPSON 237 217 Douglas, J., dissenting It is earnestly argued that the same result obtains here because the regime of desegregated swimming decreed by the District Court is ended and is supplanted by state-inspired, state-favored private swimming pools by clubs and others which perpetuate segregation. We are told that the history of this episode shows the “steel-hard, inflexible, undeviating official policy of segregation” in Mississippi. United States v. City of Jackson, 318 F. 2d 1, 5. I believe that freedom from discrimination based on race, creed, or color has become by reason of the Thirteenth, Fourteenth, and Fifteenth Amendments one of the “enumerated rights” under the Ninth Amendment that may not be voted up or voted down. Much has been written concerning the Ninth Amendment including the suggestion that the rights there secured include “rights of natural endowment.” 2 B. Patterson, The Forgotten Ninth Amendment 53 (1955). Mr. Justice Goldberg, concurring in Griswold n. Connecticut, supra, at 492, said: “[T]he Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”3 2 And see Comment, Ninth Amendment Vindication of Unenumerated Fundamental Rights, 42 Temple L. Q. 46, 53-56 (1968); Bertelsman, The Ninth Amendment and Due Process of Law— Toward a Viable Theory of Unenumerated Rights, 37 U. Cin. L. Rev. 777, 787 et seq. (1968); Forkosch, Does “Secure the Blessings of Liberty” Mandate Governmental Action?, 1 Ariz. St. L. J. 17, 32 (1970). 3 “Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State’s infringement of a fundamental right. While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned restrictions 427-293 0 - 72 - 19 238 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. We need not reach that premise in this case. We deal here with analogies to rights secured by the Bill of Rights or by the Constitution itself. Franklin, The Ninth Amendment as Civil Law Method and its Implications for Republican Form of Government, 40 Tul. L. Rev. 487, 490-492 (1966); Redlich, Are There “Certain Rights . . . Retained by the People”?, 37 N. Y. U. L. Rev. 787, 810-812 (1962); Black, The Unfinished Business of the Warren Court, 46 Wash. L. Rev. 3, 37-45 (1970); Kut-ner, The Neglected Ninth Amendment: The “Other Rights” Retained by the People, 51 Marq. L. Rev. 121, 134-137 (1968). “The Fourteenth Amendment and the two escorting amendments establish a principle of absolute equality, an equality which is denied by racial separation or segregation because the separation in truth consecrates a hierarchy of racial relations, and hence permits inequality.” * The Solicitor General says: “[T]o the extent that the municipality had voluntarily undertaken to provide swimming facilities for its citizens, making it unnecessary for the private sector to develop equally adequate facilities, the closing of the pools has insured that racial segregation will be perpetuated.” upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the ‘liberty’ protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.” 381 U. S., at 493. 4 Franklin, The Relation of the Fifth, Ninth and Fourteenth Amendments to the Third Constitution, 4 How. L. J. 170, 180 (1958). PALMER V. THOMPSON 239 217 Douglas, J., dissenting Our cases condemn the creation of state laws and regulations which foster racial discrimination—segregated schools, segregated parks, and the like. The present case, to be sure, is only an analogy. The State enacts no law saying that the races may not swim together. Yet it eliminates all its swimming pools so that the races will not have the opportunity to swim together. While racially motivated state action is involved, it is of an entirely negative character. Yet it is in the penumbra 5 of the policies of the Thirteenth, Fourteenth, and Fifteenth Amendments and as a matter of constitutional policy should be in the category of those enumerated rights protected by the Ninth Amendment. If not included, those rights become narrow legalistic concepts which turn on the formalism of laws, not on their spirit. I conclude that though a State may discontinue any of its municipal services—such as schools, parks, pools, athletic fields, and the like—it may not do so for the purpose of perpetuating or installing apartheid or because it finds life in a multi-racial community difficult or unpleasant. If that is its reason, then abolition of a designated public service becomes a device for perpetuating a segregated way of life. That a State may not do. As Mr. Justice Brennan said in Evans v. Abney, 396 U. S. 435, 453 (dissenting), where a State abandoned a park to avoid integration: “I have no doubt that a public park may constitutionally be closed down because it is too ex- 5 While the Equal Protection Clause protects individuals against state action, “the involvement of the State” need not be “either exclusive or direct.” United States v. Guest, 383 U. S. 745, 755. “In a variety of situations the Court has found state action of a nature sufficient to create rights under the Equal Protection Clause even though the participation of the State was peripheral, or its action was only one of several co-operative forces leading to the constitutional violation.” Id., at 755-756. 240 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. pensive to run or has become superfluous, or for some other reason, strong or weak, or for no reason at all. But under the Equal Protection Clause a State may not close down a public facility solely to avoid its duty to desegregate that facility.” Hunter and Reitman went to the verge of that problem. Bush went the whole way. We should reaffirm what our summary affirmance of Bush plainly implied. Mr. Justice White, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. I agree with the majority that the central purpose of the Fourteenth Amendment is to protect Negroes from invidious discrimination. Consistent with this view, I had thought official policies forbidding or discouraging joint use of public facilities by Negroes and whites were at war with the Equal Protection Clause. Our cases make it unquestionably clear, as all of us agree, that a city or State may not enforce such a policy by maintaining officially separate facilities for the two races. It is also my view, but apparently not that of the majority, that a State may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order. Let us assume a city has been maintaining segregated swimming pools and is ordered to desegregate them. Its express response is an official resolution declaring desegregation to be contrary to the city’s policy and ordering the facilities closed rather than continued in service on a desegregated basis. To me it is beyond cavil that on such facts the city is adhering to an unconstitutional policy and is implementing it by abandoning the facilities. It will not do in such circumstances to say that whites and Negroes are being treated alike because both are denied use of public services. The fact is that closing the pools is an expression of official policy that Negroes PALMER v. THOMPSON 241 217 White, J., dissenting are unfit to associate with whites. Closing pools to prevent interracial swimming is little different from laws or customs forbidding Negroes and whites from eating together or from cohabiting or intermarrying. See Adickes v. & H. Kress & Co., 398 U. S. 144 (1970); Loving n. Virginia, 388 U. S. 1 (1967); McLaughlin v. Florida, 379 U. S. 184 (1964); Lombard v. Louisiana, 373 U. S. 267 (1963). The Equal Protection Clause is a hollow promise if it does not forbid such official denigrations of the race the Fourteenth Amendment was designed to protect. The case before us is little, if any, different from the case just described. Jackson, Mississippi, closed its swimming pools when a district judge struck down the city’s tradition of segregation in municipal services and made clear his expectation that public facilities would be integrated. The circumstances surrounding this action and the absence of other credible reasons for the closings leave little doubt that shutting down the pools was nothing more or less than a most effective expression of official policy that Negroes and whites must not be permitted to mingle together when using the services provided by the city. I am quite unpersuaded by the majority’s assertion that it is impermissible to impeach the otherwise valid act of closing municipal swimming pools by resort to evidence of invidious purpose or motive. Congress has long provided civil and criminal remedies for a variety of official and private conduct. In various situations these statutes and our interpretations of them provide that such conduct falls within the federal proscription only upon proof of forbidden racial motive or animus. An otherwise valid refusal to contract the sale of real estate falls within the ban of 42 U. S. C. § 1982 upon proof that the refusal was racially motivated. Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). A restau 242 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. rant’s refusal to serve a white customer is actionable under 42 U. S. C. § 1983 where the evidence shows that refusal occurred because the white was accompanied by Negroes and was pursuant to a state-enforced custom of racial segregation. Adickes, supra. Just last week in Griffin v. Breckenridge, ante, p. 88, we construed 42 U. S.. C. § 1985 (3) to reach wholly private conspiracies—in that case to commit assault on Negroes— where sufficient evidence of “racial . . . animus” or “invidiously discriminatory motivation” accompanied the conspirators’ actions. Griffin n. Breckenridge, supra, at 102. In rejecting the argument that § 1985 (3) was subject to an implied state action limitation, we indicated that racially motivated conspiracies or activities would be actionable under § 1983 if done under color of law. Id., at 98-99. Official conduct is no more immune to characterization based on its motivation than is private conduct, and we have so held many times. The police are vulnerable under § 1983 if they subject a person “to false arrest for vagrancy for the purpose of harassing and punishing [him] for attempting to eat with black people,” Adickes, supra, at 172, or if they “intentionally tolerate violence or threats of violence directed toward those who violated the practice of segregating the races at restaurants.” Ibid. In another decision last week, we reversed a three-judge court ruling in a suit under § 1983 that the multi-member apportionment plan there involved operated to minimize or dilute the voting strength of Negroes in an identifiable ghetto area. However, in an opinion joined by four members of the majority in the instant case, we cautioned that: “[T]he courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination. . . . But there is no suggestion here that Marion County’s PALMER v. THOMPSON 243 217 White, J., dissenting multi-member district, or similar districts throughout the State, were conceived or operated as purposeful devices to further racial or economic discrimination.” Whitcomb v. Chavis, ante, p. 124, at 149 (emphasis added). Further, motivation analysis has assumed great importance in suits under 42 U. S. C. § 1983 as a result of this Court’s opinions in Younger v. Harris, 401 U. S. 37 (1971), and its companion cases. There the Court held that even though a state criminal prosecution was pending, federal relief would be appropriate on allegations in a complaint to the effect that state officials were utilizing state criminal statutes in bad faith, with no hope of obtaining valid convictions under them, in an effort to harass individuals in the exercise of their constitutional rights. Obviously, in order to determine its jurisdiction in each such case, a federal court must examine and make a determination of the same kind of official motivation which the Court today holds unreviewable. In thus pursuing remedies under the federal civil rights laws, as petitioners are doing under §§ 1981 and 1983 here, Negro plaintiffs should have every right to prove that the action of the city officials was motivated by nothing but racial considerations. In examining their contentions, it will be helpful to re-create the context in which this case arises. I In May 1954, this Court held that “[s] epar ate educational facilities are inherently unequal.” Brown n. Board of Education, 347 U. S. 483, 495. In a series of opinions following closely in time, the Court emphasized the universality and permanence of the principle that segregated public facilities of any kind were no longer permissible under the Fourteenth Amendment. 244 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. Muir v. Louisville Park Theatrical Assn., 347 U. S. 971 (1954), decided one week after Brown, saw the Court review a decision of the Court of Appeals for the Sixth Circuit which had affirmed a district court order holding that Negro plaintiffs were entitled to the use of public golf courses and a public fishing lake in Iroquois Park in Louisville, but that the privately owned theatrical association that leased a city-owned amphitheater in the same park was not guilty of discrimination proscribed by the Fourteenth Amendment in refusing to admit Negroes to its operatic performances. The Court vacated the judgment and remanded “for consideration in the light of the Segregation Cases decided May 17, 1954 . . . and conditions that now prevail.” Ibid.1 At the beginning of the October 1955 Term, the Court resolved any possible ambiguity about the action taken in Muir. In a pair of summary decisions, the Court made it clear that state-sanctioned segregation in the operation of public recreational facilities was prohibited. Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877 (1955), was a summary affirmance of a decision by the Court of Appeals for the Fourth Circuit that officials of the State and city could not enforce a policy of racial segregation at public beaches and bathhouses. On the same day, the Court confirmed that use of a public golf course could not be denied to any person on account of his race. Holmes v. City of Atlanta, 350 U. S. 879 (1955). The lower federal courts played a very important role in this ongoing process. For example, in June 1956, 1 See Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961) (segregated restaurant operated under lease in municipal facility). PALMER v. THOMPSON 245 217 White, J., dissenting a three-judge district court in Alabama, relying on Brown, Dawson, and Holmes, held that: “[T]he statutes and ordinances requiring segregation of the white and colored races on the motor buses of a common carrier of passengers in the City of Montgomery and its police jurisdiction violate the due process and equal protection of the law clauses of the Fourteenth Amendment Browder v. Gayle, 142 F. Supp. 707, 717 (MD Ala.). Again this Court affirmed summarily, citing Brown, Dawson, and Holmes. 352 U. S. 903 (1956). Some public officials remained unconvinced. In early 1958, the Court of Appeals for the Fifth Circuit summarily rejected as without merit an appeal by the New Orleans City Park Improvement Association from a summary judgment including a permanent injunction prohibiting the Association, a municipal corporation, from denying Negroes the use of the facilities of the New Orleans City Park. New Orleans City Park Improvement Assn. v. Detiege, 252 F. 2d 122 (CA5 1958). When the Association took a further appeal to this Court, the judgment was affirmed in a one-line opinion. New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958). Other decisions in this Court and the lower federal courts demonstrated the pervasive idea that officially segregated public facilities were not equal.2 2 See, e. g., Boynton v. Virginia, 364 U. S. 454 (1960) (application of Interstate Commerce Act); Burton, supra, n. 1; Turner v. City of Memphis, 369 U. S. 350 (1962) (public restaurant in municipal airport); Johnson v. Virginia, 373 U. S. 61 (1963) (courtrooms); Brown v. Louisiana, 383 U. S. 131, 139 (1966) (libraries); City of St. Petersburg v. Alsup, 238 F. 2d 830 (CA5 1956) (beach and swimming pool); Department of Conservation & Development v. Tate, 231 F. 2d 615 (CA4), cert, denied, 352 U. S. 838 (1956) (state park); Willie v. Harris County, 202 F. Supp. 549 (SD Tex. 1962) 246 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. Throughout the same period, this Court and other courts rejected attempts by various public bodies to evade their clear duty under Brown and its progeny by employing delaying tactics or other artifices short of open defiance. Cooper v. Aaron, 358 U. S. 1 (1958); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961); Watson v. City of Memphis, 373 U. S. 526 (1963); Griffin v. County School Board of Prince Edward County, 377 U. S. 218 (1964).3 Meanwhile, countless class suits seeking desegregation orders were successfully prosecuted by Negro plaintiffs in the lower federal courts. Many public facilities were opened to all citizens, regardless of race, without direct intervention by this Court. Several of these local suits are relevant to the present case. The city of Jackson was one of many places where the consistent line of decisions following from Brown had little or no effect.4 Public recreational facilities were (county park); Shuttlesworth v. Gaylord, 202 F. Supp. 59 (ND Ala. 1961), aff’d sub nom. Hanes v. Shuttlesworth, 310 F. 2d 303 (CA5 1962) (parks, tennis courts, swimming pools, zoo, golf courses, baseball parks, museum, auditorium); Moorhead v. City of Ft. Lauderdale, 152 F. Supp. 131 (SD Fla.), aff’d, 248 F. 2d 544 (CA5 1957) (golf course); Ward v. City of Miami, 151 F. Supp. 593 (SD Fla. 1957) (golf course); Holley v. City of Portsmouth, 150 F. Supp. 6 (ED Va. 1957) (golf course); Fayson v. Beard, 134 F. Supp. 379 (ED Tex. 1955) (city parks). 3 See also Green n. County School Board of New Kent County, 391 U. S.430 (1968). 4 See Thomas v. Mississippi, 380 U. S. 524 (1965); NAACP v. Thompson, 357 F. 2d 831 (CA5 1966); Bailey v. Patterson, 199 F. Supp. 595 (SD Miss. 1961), vacated, 369 U. S. 31 (1962); United States v. City of Jackson, 206 F. Supp. 45 (SD Miss. 1962), rev’d, 318 F. 2d 1, 5-6 (CA5 1963) (common carrier terminals), where the Court of Appeals stated: “We again take judicial notice that the State of Mississippi has a steel-hard, inflexible, undeviating official policy of segregation. The policy is stated in its laws. It is rooted in custom. The segregation signs at the terminals in Jackson carry out that policy. The Jackson PALMER V. THOMPSON 247 217 White, J., dissenting not desegregated although it had become clear that such action was required by the Constitution. As respondents state in their brief in this case: “In 1963 the City of Jackson was operating equal but separate recreational facilities such as parks and golf links, including swimming pools. A suit was brought in the Southern District of Mississippi to enjoin the segregated operation of these facilities. The City of Jackson took the position in that litigation that the segregation of recreational facilities, if separate but equal recreational facilities were provided and if citizens voluntarily used segregated facilities, was constitutional.” Respondents’ Brief 2. This was nearly nine years after Brown and more than seven years after Dawson and Holmes. The suit respondents refer to was instituted in 1962 as a class action by three Negro plaintiffs who alleged that some city facilities—parks, libraries, zoo, golf courses, playgrounds, auditoriums, and other recreational complexes—were closed to them because of their race. The defendants were Jackson city officials, including Mayor Allen C. Thompson and Director of Parks and Recreation George Kurts, both respondents in the present case. The plaintiffs in that suit were successful. The District Court’s opinion began by stating that Jackson police add muscle, bone, and sinew to the signs.” (Footnotes omitted.) See also Singleton v. Jackson Municipal Separate School Dist., 348 F. 2d 729 (CA5 1965); Singleton v. Jackson Municipal Separate School Dist., 355 F. 2d 865 (CA5 1966); Singleton v. Jackson Municipal Separate School Dist., 419 F. 2d 1211 (CA5 1969), rev’d in part sub nom. Carter v. West Feliciana Parish School Board, 396 U. S. 290 (1970); Singleton v. Jackson Municipal Separate School Dist., 426 F. 2d 1364 (CA5), modified, 430 F. 2d 368 (CA5 1970); Singleton v. Jackson Municipal Separate School Dist., 432 F. 2d 927 (CA5 1970). 248 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. was a city “noted for its low crime rate and lack of racial friction except for the period in 1961 when the self-styled Freedom Riders made their visits.” Clark v. Thompson, 206 F. Supp. 539, 541 (SD Miss. 1962). It was also stated that Jackson had racially exclusive neighborhoods, that as this residential pattern had developed the city had “duplicated” its recreational facilities in white and Negro areas, and that members of each race “have customarily used the recreational facilities located in close proximity to their homes.” Ibid. The final finding of fact was that the “defendants are not enforcing separation of the races in public recreational facilities in the City of Jackson. The defendants do encourage voluntary separation of the races.” Ibid.5 Among the District Court’s conclusions of law were the following: (1) that the suit was not a proper class action since the Negro plaintiffs had failed to show that their interests were not antagonistic to or incompatible with those of the purported class;6 (2) that the three original plaintiffs were entitled to an adjudication by declaratory judgment of “their personal claims of right to unsegregated use of public recreational facilities,” 206 F. Supp., 5 In an affidavit filed August 18, 1965, in the District Court in the present case, Mayor Thompson stated, “I believe that the welfare of both races would have best been served if [the custom that members of each race would use the recreational facilities near their homes] had continued.” 6 But see Brown n. Board of Education, 347 U. S. 483, 495 (1954); Dawson v. Mayor and City Council of Baltimore, 220 F. 2d 386 (CA4), aff’d, 350 U. S. 877 (1955); Holmes v. City of Atlanta, 223 F. 2d 93, 94-95 (CA5), rev’d, 350 U. S. 879 (1955); Browder v. Gayle, 142 F. Supp. 707, 714 (MD Ala.), aff’d, 352 U. S. 903 (1956); New Orleans City Park Improvement Assn. v. Detiege, 252 F. 2d 122, 123 (CA5), aff’d, 358 U. S. 54 (1958); see also Carter n. Jury Comm’n of Greene County, 396 U. S. 320, 329-330 (1970). PALMER V. THOMPSON 249 217 White, J., dissenting at 542; (3) that injunctive relief was inappropriate as a matter of law;7 and (4) that “The individual defendants in this case are all outstanding, high class gentlemen and in my opinion will not violate the terms of the declaratory judgment issued herein. They know now what the law is and what their obligations are, and I am definitely of the opinion that they will conform to the ruling of this Court without being coerced so to do by an injunction. The City of Jackson, a municipality, of course is operated by some of these high class citizens. I am further of the opinion that during this period of turmoil the time now has arrived when the judiciary should not issue injunctions perfunctorily, but should place trust in men of high character that they will obey the mandate of the Court without an injunction hanging over their heads.” 206 F. Supp., at 543. As the city has stressed in its brief here, it did not appeal from this judgment, which was entered in May 1962. The Negro plaintiffs, however, did appeal, claiming that the relief afforded was inadequate. The Court of Appeals for the Fifth Circuit affirmed per curiam, 313 F. 2d 637 (CA5 1963). On December 16, 1963, this Court denied certiorari, 375 U. S. 951. It must be noted here that none of Jackson’s public recreational facilities was desegregated until after the appellate proceedings in Clark n. Thompson were fully concluded.8 This was true despite the fact that under this Court’s prior decisions the only possible result of such review would have been a broadening of the relief 7 But see cases cited n. 6, supra. 8 See Respondents’ Brief 3; Affidavit of Allen C. Thompson, App. 21; Affidavit of George T. Kurts, App. 18. 250 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. granted by the District Judge. Moreover, from the time of the trial court’s decision in Clark v. Thompson, the mayor of Jackson made public statements, of record in this case, indicating his dedication to maintaining segregated facilities. On May 24, 1962, nine days after the District Court’s decision in Clark v. Thompson, the Jackson Daily News quoted Mayor Thompson as saying: “ ‘We will do all right this year at the swimming pools . . . but if these agitators keep up their pressure, we would have five colored swimming pools because we are not going to have any intermingling.’ . . . He said the City now has legislative authority to sell the pools or close them down if they can’t be sold.” App. 15. A year passed while the appeals in Clark v. Thompson were pending, but the city’s official attitude did not change. On May 24, 1963, the Jackson Daily News reported that “Governor Ross Barnett today commended Mayor Thompson for his pledge to maintain Jackson’s present separation of the races.” App. 15. On the next day, the same newspaper carried a front page article stating that “Thompson said neither agitators nor President Kennedy will change the determination of Jackson to retain segregation.” App. 16. During May and June 1963, the Negro citizens of Jackson organized to present their grievances to city officials. On May 27, a committee representing the Negro community met with the mayor and two city commissioners. Among the grievances presented was a specific demand that the city desegregate public facilities, including the city-operated parks and swimming pools. On the day following this meeting, the Jackson Daily News quoted the mayor as saying: “ Tn spite of the current agitation, the Commissioners and I shall continue to plan and seek money PALMER V. THOMPSON 251 217 White, J., dissenting for additional parks for our Negro citizens. Tomorrow we are discussing with local Negro citizens plans to immediately begin a new clubhouse and library in the Grove Park area, and other park and recreational facilities for Negroes throughout the City. We cannot proceed, however, on the proposed $100,000 expenditure for a Negro swimming pool in the Grove Park area as long as there is the threat of racial disturbances.’ ” App. 15. On May 30, 1963, the same paper reported that the mayor had announced that “[p]ublic swimming pools would not be opened on schedule this year due to some minor water difficulty.” App. 5. The city at this time operated five swimming facilities on a segregated basis: the Livingston Lake swimming facility, in reality a lake with beach facilities, at Livingston Park; a swimming pool in Battlefield Park; a swimming pool and a wading pool in Riverside Park; a pool that the city leased from the YMCA in Leavell Woods Park; a swimming pool and a wading pool for Negroes in College Park.9 In literature describing its Department of Parks and Recreation, the city stressed that “[o]ur $.10 and $.20 charge for swimming ... [is] the lowest to be found anywhere in the country. The fees are kept low in order to serve as many people as possible.” In one of two affidavits that he filed below, Parks Director Kurts stated that for the years 1960, 1961, and 1962, the average annual expense to the city of operating each of the pools in Battlefield, Riverside, and College Park was $10,000. The average annual revenue from the pools in Battlefield 9 At the time Clark v. Thompson was decided, the population of Jackson consisted of approximately 100,000 whites and 50,000 Negroes. Despite this 2:1 ratio in population, there were four swimming facilities for whites and only one for Negroes. 252 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. and Riverside Parks was $8,000 apiece; the average annual revenue from the Negro pool in College Park was $2,300. Thus, for these three facilities, the city was absorbing an annual loss of approximately $11,700, and was doing so “in order to serve as many people as possible.” From the time of the announcement of “minor water difficulty” at the end of May 1963, none of these swimming facilities has operated under public aegis. The city canceled its lease on the Leavell Woods pool, and it has since been operated on a “whites only” basis by its owner, the YMCA, apparently without city involvement.10 At oral argument, counsel for the city informed us that the pool that was located in the Negro neighborhood—the College Park pool—“was sold by the City to the Y. The YMCA opened it up and the black people boycotted so it wasn’t being used, then the YMCA sold it to Jackson State College, Jackson State now owns it and operates it . . . for the students at Jackson State and their guests . . . .” Tr. of Oral Arg. 31. According to the record below, the Battlefield Park and Riverside Park pools, both in white neighborhoods, have remained closed but have been properly maintained and 101 agree fully with the majority that if a city or State becomes involved in any way in the operation of facilities on a segregated basis by private parties, the Fourteenth Amendment is violated. See Burton v. Wilmington Parking Authority, supra, n. 1; Hampton v. City of Jacksonville, 304 F. 2d 320 (CA5), cert, denied sub nom. Ghioto v. Hampton, 371 U. S. 911 (1962); Smith v. Young Men’s Christian Assn, of Montgomery, 316 F. Supp. 899 (MD Ala. 1970) (city agreement with YMCA to coordinate city and YMCA recreational activities to eliminate duplication of services had as its primary purpose and effect encouragement and assistance of Y MCA in maintaining segregated recreational facilities and programs) ; Chinn v. Canton, Civ. No. 3764 (SD Miss., Nov. 18, 1965) (unreported) (town leased municipal pool to private all-white association; pool ordered desegregated). PALMER V. THOMPSON 253 217 White, J., dissenting prevented from falling into disrepair by the city, although they produce no offsetting revenue. The Livingston Lake facility has apparently remained in its natural state.11 In August 1965, petitioners brought the present class action in the Southern District of Mississippi. They challenged the closing of the pools and racial segregation in the city jail, seeking both declaratory and injunctive relief. The case was tried on affidavits and stipulations and submitted to the District Judge. In addition to the evidence summarized above, Mayor Thompson filed an affidavit which stated: “Realizing that the personal safety of all of the citizens of the City and the maintenance of law and order would prohibit the operation of swimming pools on an integrated basis, and realizing that the said pools could not be operated economically on an integrated basis, the City made the decision subsequent to the Clark case to close all pools owned and operated by the City to members of both races.” App. 21.11 12 Parks Director Kurts filed a similar affidavit, averring: “That after the decision of the Court in the case of Clark- v. Thompson, it became apparent that the swimming pools owned and operated by the City of Jackson could not be operated peacefully, safely, or economically on an integrated basis, and the City 11 During the proceedings in this case, it was developed that the benches in the Livingston Park Zoo were removed in 1961, and that the public rest rooms in the Municipal Court Building were closed at some point in time. See Palmer v. Thompson, 419 F. 2d 1222, 1231 (CA5 1969) (dissenting opinion); affidavit of Allen C. Thompson, App. 21. 12 The Mayor’s affidavit makes no mention of “minor water difficulty.” 427-293 0 - 72 - 20 254 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. decided that the best interest of all citizens required the closing of all public swimming pools owned and operated by the City . . . .” App. 18.13 Based on these affidavits, the District Judge found as a fact that the decision to close the pools was made after Clark v. Thompson and that the pools could not be operated safely or economically on an integrated basis. Accordingly, he held that petitioners were not entitled to any relief and dismissed the complaint. On appeal, a panel of the Court of Appeals for the Fifth Circuit affirmed. Palmer v. Thompson, 391 F. 2d 324 (1967). On rehearing en banc, the Court of Appeals, by a seven-to-six vote, again affirmed dismissal of the complaint. 419 F. 2d 1222 (1969). Both courts below rejected petitioners’ argument that because the pools were closed to avoid court orders that would require their desegregation, the city’s action was a denial of equal protection. We granted certiorari to decide that issue, 397 U. S. 1035 (1970), and for the reasons that follow I would reverse. II There is no dispute that the closing of the pools constituted state action. Similarly, there can be no disagreement that the desegregation ruling in Clark v. Thompson was the event that precipitated the city’s decision to cease furnishing public swimming facilities to its citizens.14 Although the secondary evidence of what the city officials thought and believed about the wisdom of desegregation is relevant, it is not necessary to rely on it to establish the causal link between Clark v. Thompson and the closings. The officials’ sworn affidavits, 13 The Parks Director’s affidavit makes no mention of “minor water difficulty.” 14 At oral argument, counsel for the city so conceded. Tr. of Oral Arg. 28-29. PALMER V. THOMPSON 255 217 White, J., dissenting accepted by the courts below, stated that loss of revenue and danger to the citizens would obviously result from operating the pools on an integrated basis. Desegregation, and desegregation alone, was the catalyst that would produce these undesirable consequences. Implicit in this official judgment were assumptions that the citizens of Jackson were of such a mind that they would no longer pay the 10- or 20-cent fee imposed by the city if their swimming and wading had to be done with their neighbors of another race, that some citizens would direct violence against their neighbors for using pools previously closed to them, and that the anticipated violence would not be controllable by the authorities. Stated more simply, although the city officials knew what the Constitution required after Clark v. Thompson became final, their judgment was that compliance with that mandate, at least with respect to swimming pools, would be intolerable to Jackson’s citizens. Predictions such as this have been presented here before. One year after the District Court’s opinion in Clark v. Thompson, this Court reviewed a case in which municipal officials had made the same assumption and had acted upon it. In Memphis, Tennessee, Brown and the cases discussed above had little effect until May 1960, when Negro residents sued for declaratory and injunctive relief directing immediate desegregation of the municipal parks and other city-owned and city-operated recreational facilities. The city agreed that the Fourteenth Amendment required all facilities to be opened to citizens regardless of race and that the majority of city-run facilities remained segregated at the time of suit, six years after Brown. It was nevertheless asserted that desegregation was under way and that further delay in achieving full desegregation was the wise and proper course. Both of the lower courts denied plaintiffs relief, the net result being an order directing the city to submit 256 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. within six months a plan providing for gradual desegregation of all the city’s recreational facilities. This Court unanimously rejected further delay in integrating these facilities. Watson v. City of Memphis, 373 U. S. 526 (1963). It did so although the city asserted its good-faith attempt to comply with the Constitution and its honest belief that gradual desegregation, facility by facility, was necessary to prevent interracial strife. The Court’s “compelling answer to this contention [was] that constitutional rights may not be denied simply because pf hostility to their assertion or exercise.” Id., at 535. See also Buchanan v. Warley, 245 U. S. 60, 81 (1917) ; Brown v. Board of Education, 349 U. S. 294, 300 (1955); Cooper v. Aaron, 358 U. S., at 16; Wright v. Georgia, 373 U. S. 284, 291-293 (1963). The record in the case was reviewed in some detail. I quote at length because of the pertinence of the Court’s observations. “Beyond this, however, neither the asserted fears of violence and tumult nor the asserted inability to preserve the peace was demonstrated at trial to be anything more than personal speculations or vague disquietudes of city officials. There is no indication that there had been any violence or meaningful disturbances when other recreational facilities had been desegregated. In fact, the only evidence in the record was that such prior transitions had been peaceful. The Chairman of the Memphis Park Commission indicated that the city had ‘been singularly blessed by the absence of turmoil up to this time on this race question’; notwithstanding the prior desegregation of numerous recreational facilities, the same witness could point as evidence of the unrest or turmoil which would assertedly occur upon complete desegregation of such facilities only to a number of anonymous letters and phone calls PALMER v. THOMPSON 257 217 White, J., dissenting which he had received. The Memphis Chief of Police mentioned without further description some ‘troubles’ at the time bus service was desegregated and referred to threatened violence in connection with a ‘sit-in’ demonstration at a local store, but, beyond making general predictions, gave no concrete indication of any inability of authorities to maintain the peace. The only violence referred to at any park or recreational facility occurred in segregated parks and was not the product of attempts at desegregation. Moreover, there was no factual evidence to support the bare testimonial speculations that authorities would be unable to cope successfully with any problems which in fact might arise or to meet the need for additional protection should the occasion demand. “The existing and commendable goodwill between the races in Memphis, to which both the District Court and some of the witnesses at trial made express and emphatic reference as in some inexplicable fashion supporting the need for further delay, can best be preserved and extended by the observance and protection, not the denial, of the basic constitutional rights here asserted. The best guarantee of civil peace is adherence to, and respect for, the law. “The other justifications for delay urged by the city or relied upon by the courts below are no more substantial, either legally or practically. It was, for example, asserted that immediate desegregation of playgrounds and parks would deprive a number of children—both Negro and white—of recreational facilities; this contention was apparently based on the premise that a number of such facilities would have to be closed because of the inadequacy of the ‘present’ park budget to provide additional ‘supervision’ assumed to be necessary to operate unsegregated 258 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. playgrounds. As already noted, however, there is no warrant in this record for assuming that such added supervision would, in fact, be required, much less that police and recreation personnel would be unavailable to meet such needs if they should arise. More significantly, however, it is obvious that vindication of conceded constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them. We will not assume that the citizens of Memphis accept the questionable premise implicit in this argument or that either the resources of the city are inadequate, or its government unresponsive, to the needs of all of its citizens.” 373 U. S., at 536-538 (footnotes omitted). So it is in this case. The record before us does not include live testimony. It was stipulated by the parties after the District Judge had entered his order denying relief that the “parties had an opportunity to offer any and all evidence desired.” The official affidavits filed were even less compelling than the evidence presented by city officials in Watson. The conclusion of city officials that integrated pools would not be “economical” was no more than “personal speculation.” The city made no showing that integrated operation would increase the annual loss of at least $11,700—a loss that, prior to 1963, the city purposely accepted for the benefit of its citizens as long as segregated facilities could be maintained. The prediction that the pools could not be operated safely if they were desegregated was nothing more than a “vague disquietude.” In Watson, the record reflected that the parks commissioner had received a number of anonymous phone calls and letters presumably threatening violence, and that the chief of police had testified about troubles in connection with a sit-in demonstration and desegregation of the city buses. Here, Mayor Thomp- PALMER V. THOMPSON 259 217 White, J., dissenting son’s affidavit, filed in 1965, refers only to a time in 1961 “when racial tensions were inflamed by the visits of the freedom riders to Jackson.” Both the Thompson and Kurts affidavits assert that all other public recreational facilities in Jackson were desegregated following Clark v. Thompson. Neither affidavit contains the slightest hint—in general or specific terms—that this transition caused disorder or violence.15 As in Watson, there is no factual evidence that city law enforcement authorities would be unable to cope with any disturbances that might arise; unlike Watson, however, there is in this record not even a “bare testimonial speculation” that this would be the case. With all due respect, I am quite unable to agree with the majority’s assertion, ante, at 225, that there is “substantial evidence in the record” to support the conclusion of the lower courts that the pools could not be operated safely and economically on an integrated basis. Officials may take effective action to control violence or to prevent it when it is reasonably imminent. But the anticipation of violence in this case rested only on unsupported assertion, to which the permanent closing of swimming pools was a wholly unjustified response. The city seems to fear that even if some or all of the pools suffered a sharp decline in revenues from the levels pertaining before 1963 because Negro and white neighbors refused to use integrated facilities, the city could never close the pools for that reason. I need only ob 15 In its brief, the city argues: “This Court will take judicial knowledge of the fact that there still exists a serious danger of violent clashes between young people of different racial groups, whether stemming from acts of or promoted by one group or the other.” Respondents’ Brief 10. But this is, as noted in the text, contrary to the record developed in the courts below. Moreover, at oral argument counsel for the respondents stated that to his knowledge there has been no interracial violence in Jackson since the 1961 Freedom Rider incidents. See Tr. of Oral Arg. 36. 260 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. serve that such a case, if documented by objective record evidence, would present different considerations. As Judge Wisdom stated below, “We do not say that a city may never abandon a previously rendered municipal service. If the facts show that the city has acted in good faith for economic or other nonracial reasons, the action would have no overtones of racial degradation, and would therefore not offend the Constitution.” 419 F. 2d, at 1237 n. 16 (dissenting opinion). It is enough for the present case to re-emphasize that the only evidence in this record is the conclusions of the officials themselves, unsupported by even a scintilla of added proof. Watson counsels us to reject the vague speculation that the citizens of Jackson will not obey the law, as well as the correlative assumption that they would prefer no public pools to pools open to all residents who come in peace. The argument based on economy is no more than a claim that a major portion of the city’s population will not observe constitutional norms. The argument based on potential violence, as counsel for the city indicated at oral argument, unfortunately reflects the views of a few immoderates who purport to speak for the white population of the city of Jackson. Tr. of Oral Arg. 36. Perhaps it could have been presented, but there is no evidence now before us that there exists any group among the citizens of Jackson that would employ lawless violence to prevent use of swimming pools by Negroes and whites together. In my view, the Fourteenth Amendment does not permit any official act— whether in the form of open refusal to desegregate facilities that continue to operate, decisions to delay complete desegregation, or closure of facilities—to be predicated on so weak a reed. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply PALMER v. THOMPSON 261 217 White, J., dissenting held. Surely the promise of the Fourteenth Amendment demands more than nihilistic surrender. As Mr. Justice Frankfurter observed more than 12 years ago: “The process of ending unconstitutional exclusion of pupils from the common school system—'common’ meaning shared alike—solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence loose—violence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claim—nor by submitting to it under whatever guise employed. Only the constructive use of time will achieve what an advanced civilization demands and the Constitution confirms.” Cooper v. Aaron, 358 U. S., at 25 (concurring opinion). Ill I thus arrive at the question of whether closing public facilities to citizens of both races, whatever the reasons for such action, is a special kind of state action somehow insulated from scrutiny under the Fourteenth Amendment. As the opinions of the majority and Mr. Justice Douglas show, most of our prior decisions, because of their facts, do not deal with this precise issue. Bush v. Orleans Parish School Board, 187 F. Supp. 42 (ED La. 1960), aff’d, 365 U. S. 569 (1961), is relevant. In that case, a three-judge court declared unconstitutional a number of Louisiana statutes designed to avoid desegregation of the public schools in that State. Among the laws stricken down was a statute giving the Governor the right to close any school ordered to integrate, a statute giving the Governor the right to close all schools if one was integrated, and a statute giving the Governor 262 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. the right to close any school threatened with violence or disorder. We affirmed the District Court summarily and without dissent. Ibid.16 See also Hall v. St. Helena 161 cannot agree with the majority’s attempt to discount the significance of Bush. First, the action taken in Bush in no sense depended on our conclusion in Brown that the provision of public education was an especially important state function. Had that been the case, and had recreational facilities somehow been considered less essential, the Court should have accepted the argument made by some States that Brown not be extended to recreational facilities. This we did not do. See Dawson, supra, and Holmes, supra. Similarly, if such a distinction was at all tenable, the extension of the “all deliberate speed” approach to desegregating public facilities might have been appropriate. But this argument was also emphatically rejected. See Watson, supra, at 529-530. When a public agency furnishes a service—regardless of whether or not it is an “essential” one—it must act in a nondiscriminatory manner with regard to that service. Second, even accepting the majority’s characterization of public schools as “important,” there is much in our previous decisions to contradict its implication that providing swimming pools and other public recreational facilities is not a significant state function. In Evans v. Newton, 382 U. S. 296, 302 (1966), the Court stated: “A park ... is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain, Watson v. Memphis, 373 U. S. 526; and state courts that aid private parties to perform that public function on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment.” See also Evans n. Abney, 396 U. S. 435, 443-444, 445 (1970), where Mr. Justice Black, writing for the Court, stated: “When a city park is destroyed because the Constitution requires it to be integrated, there is reason for everyone to be disheartened. We agree with petitioners that in such a case it is not enough to find that the state court’s result was reached through the application of established principles of state law. No state law or act can prevail in the face of contrary federal law, and the federal courts must search out the fact and truth of any proceeding or transaction to determine if the Constitution has been violated. “A second argument for petitioners stresses the similarities be PALMER V. THOMPSON 263 217 White, J., dissenting Parish School Board, 197 F. Supp. 649 (ED La. 1961), aff’d, 368 U. S. 515 (1962). Griffin v. County School Board of Prince Edward County, 377 U. S. 218 (1964), is perhaps distinguishable, tween this case and the case in which a city holds an absolute fee simple title to a public park and then closes that park of its own accord solely to avoid the effect of a prior court order directing that the park be integrated as the Fourteenth Amendment commands. Yet, assuming arguendo that the closing of the park would in those circumstances violate the Equal Protection Clause, that case would be clearly distinguishable from the case at bar because there it is the State and not a private party which is injecting the racially discriminatory motivation. In the case at bar there is not the slightest indication that any of the Georgia judges involved were motivated by racial animus or discriminatory intent of any sort in construing and enforcing Senator Bacon’s will.” This was the inquiry made in Bush, and it led to striking down the statutes in question. We affirmed that ruling, and the record here is no less clear. And as the majority concedes, ante, at 221 n. 6, surely it is not irrelevant in considering the context in which Jack-son’s pools were closed, that a statute of the State of Mississippi, in effect since 1956, provides: “That the entire executive branch of the government of the State of Mississippi, and of its subdivisions, and all persons responsible thereto, including the governor, the lieutenant governor, the heads of state departments, sheriffs, boards of supervisors, constables, mayors, boards of aidermen and other governing officials of municipalities by whatever name known . . . whether specifically named herein or not . . . shall give full force and effect in the performance of their official and political duties, to the Resolution of Interposition . . . and all of said members of the executive branch be and they are hereby . . . directed and required to prohibit, by any lawful, peaceful and constitutional means, the implementation of or the compliance with the Integration Decisions of the United States Supreme Court of May 17, 1954 (347 US 483), . . . and of May 31, 1955 (349 US 294), . . . and to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government, any person employed by the federal government, any commission, board or 264 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. but only if one ignores its basic rationale and the purpose and direction of this Court’s decisions since Brown. First, and most importantly, Griffin stands for the proposition that the reasons underlying certain official acts are highly relevant in assessing the constitutional validity of those acts. We stated: “But the record in the present case could not be clearer that Prince Edward’s public schools were closed and private schools operated in their place with state and county assistance, for one reason, and one reason only: to ensure, through measures taken by the county and the State, that white and colored children in Prince Edward County would not, under any circumstances, go to the same school. Whatever nonracial grounds might support a State’s allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.” 377 U. S., at 231. See also Go million v. Lightfoot, 364 U. S. 339, 346-348 (1960); Board of Education v. Allen, 392 U. S. 236, 243 (1968); Epperson v. Arkansas, 393 U. S. 97, 109 (1968); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205 (1970); Note, Legislative Purpose and Federal Constitutional Adjudication, 83 Harv. L. Rev. 1887 (1970). Second, agency of the federal government, or any subdivision of the federal government, and to prohibit, by any lawful, peaceful and constitutional means, the implementation of any orders, rules or regulations of any board, commission or agency of the federal government, based on the supposed authority of said Integration Decisions, to cause a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state.” Miss. Code Ann §4065.3 (1957); see United States v. City of Jackson, 318 F. 2d 1, 5-6 (CA5 1963) (judicial notice taken of this statute). PALMER v. THOMPSON 265 217 White, J., dissenting Griffin contains much that is relevant to the kind of decree that would be appropriate if the decision below is reversed. See 377 U. S., at 232-234. The majority, conceding the relevance of the quoted passage from Griffin, states that the “focus in [both Griffin and Gomilliori] was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did.” Respondents agree, and argue further that the present record shows only that Jackson has closed facilities that were once open on a segregated basis and that the closing operates equally on Negroes and whites alike. But if effect was all that the Court considered relevant in Griffin, there was no need to mention underlying purpose and to stress the delay that took place in Virginia in implementing Brown.17 More importantly, Griffin was only one case in a series stressing that the Fourteenth Amendment rights “declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.’ Smith v. Texas, 311 U. S. 128, 132.” Cooper v. Aaron, supra, at 17. It seems to me neither wise nor warranted to limit this principle in a case where the record is as clear as is the one presently before us. State action predicated solely on opposition to a lawful court order to desegregate is a denial of equal protection of the laws. As Judge Wisdom said in dissent below, the argument that the closing of the pools operated equally on Negroes and whites “is a tired contention, one that has been overworked in civil rights cases.” 419 F. 2d, at 1232 (dissenting opinion). It was made and rejected in Griffin. See, e. g., Brief of Respondent Board of Super- 17 See also Green, supra, n. 3. 266 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. visors of Prince Edward County in Griffin 57-84.18 It was advanced and rejected in different contexts in Anderson v. Martin, 375 U. S. 399 (1964) (designation of race on ballots), and Loving n. Virginia, 388 U. S. 1 (1967) (miscegenation law). The same argument was rejected in Hunter v. Erickson, 393 U. S. 385, 391 (1969), where we stated that “although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law’s impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that.” Here, too, the reality is that the impact of the city’s act falls on the minority. Quite apart from the question whether the white citizens of Jackson have a better chance to swim than do their Negro neighbors absent city pools, there are deep and troubling effects on the racial minority that should give us all pause. As stated at the outset of this opinion, by closing the pools solely because of the order to desegregate, the city is expressing its official view that Negroes are so inferior that they are unfit to share with whites this particular type of public facility, though pools were long a feature of the city’s segregated recreation program. But such an official position may not be enforced by designating certain pools for use by whites and others for the use of Negroes. Closing the pools without a colorable nondiscriminatory reason was every bit as much an official endorsement of 18 In their briefs in Griffin, No. 592, 0. T. 1963, the respondents relied on previous lower court cases that have permitted closing public recreational facilities after decrees had been entered ordering that they be desegregated. See Brief of Respondent Board of Supervisors in Griffin 65-66. See also Brief of Respondents State Board of Education and Superintendent of Public Instruction in Griffin 53-63. Griffin rejected the relevance of these decisions; however, the present respondents rely on them here and the majority implicitly embraces them. PALMER V. THOMPSON 267 217 White, J., dissenting the notion that Negroes are not equal to whites as was the use of state National Guard troops in 1957 to bar the entry of nine Negro students into Little Rock’s Central High School, a public facility that was ordered desegregated in the' wake of Brown. See Cooper v. Aaron, 358 U. S., at 11. Both types of state actions reflect implementation of the same official conclusion: Negroes cannot be permitted to associate with whites. But that notion had begun to break down as this Court struggled with the “separate but equal” doctrine, see Brown, 347 U. S., at 491-494,19 and I had thought it was emphatically laid to rest in Brown itself, where we quoted with approval the finding of a district judge that: “ ‘Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of the negro children and to deprive them of some of the benefits they would receive in a racial [ly] integrated school system.’ ” 347 U. S., at 494. 19 The Court in Brown noted that in Sweatt v. Painter, 339 U. S. 629 (1950), the Court had held that a segregated law school for Negroes could not provide them equal educational opportunities, relying in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” 339 U. S., at 634. The Court in Brown also relied on McLaurin v. Oklahoma State Regents, 339 U. S, 637 (1950), in which it was required that a Negro student in a white graduate school be treated like all other students in order to avoid impairing “his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” 339 U. S., at 641. 268 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. These considerations were not abandoned as Brown was applied in other contexts, and it is untenable to suggest that the closing of the swimming pools—a pronouncement that Negroes are somehow unfit to swim with whites—operates equally on Negroes and whites. Whites feel nothing but disappointment and perhaps anger at the loss of the facilities. Negroes feel that and more. They are stigmatized by official implementation of a policy that the Fourteenth Amendment condemns as illegal. And the closed pools stand as mute reminders to the community of the official view of Negro inferiority. Moreover, this Court has carefully guarded the rights of Negroes to attack state-sanctioned segregation through the peaceful channels of the judicial process. This Court has recently discussed and analyzed various provisions of the Reconstruction civil rights statutes, and there is little need here to repeat anything more than the most recent observation that “[t]he approach of this Court... has been to ‘accord [these statutes] a sweep as broad as [their] language.’ ” Griffin v. Breckenridge, ante, p. 88, at 97.20 Of course, 42 U. S. C. § 1981 specifically declares that “[a] 11 persons . . . shall have the same right ... to sue ... as is enjoyed by white citizens . . . .” Congress has supplemented this early legislation, and this Court has commented on the importance of private plaintiffs in enforcing civil rights statutes. Newman v. Biggie Park Enterprises, Inc., 390 U. S. 400, 401-402 (1968); see also NAACP v. Alabama, 357 U. S. 449 (1958). The Civil Rights Act of 1964 provided an additional avenue for a potential private plaintiff to follow. Provisions of that Act authorize the Attorney General to bring a civil suit in the name of the United States whenever he receives a signed complaint in writing 20 Quoting United States v. Price, 383 U. S. 787, 801 (1966); see also Adickes v. 8. H. Kress & Co., 398 U. S. 144 (1970); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). PALMER V. THOMPSON 269 217 White, J., dissenting from an individual that such person is being denied equal protection of the laws by being denied equal utilization of any public facilities such as those involved in the present case. 42 U. S. C. § 2000b (a). The Attorney General may bring such a suit if he believes the complaint to be meritorious and certifies that the signer of the complaint is unable, in his judgment, to initiate and maintain an appropriate private suit. Ibid. The statute further defines when the Attorney General may deem a complainant unable to initiate or maintain a private action, specifying inability to bear the expense of private litigation and the possibility that “the institution of such litigation would jeopardize the personal safety, employment, or economic standing of such person or persons, their families, or their property.” 42 U. S. C. § 2000b (b). It is evident that closing a public facility after a court has ordered its desegregation has an unfortunate impact on the minority considering initiation of further suits or filing complaints with the Attorney General. As Judge Wisdom said, “[T]he price of protest is high. Negroes ... now know that they risk losing even segregated public facilities if they dare to protest... segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether . . . .” 419 F. 2d, at 1236 (dissenting opinion). It is difficult to measure the extent of this impact, but it is surely present and surely we should not ignore it. The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.21 As such, it is illegal under the 21 Nor should we be lulled by the suggestion that all of Jackson’s public facilities have been integrated. As the majority correctly states, “[i]f the time ever comes when Jackson attempts to run segregated public pools either directly or indirectly, or partici- 427-293 0- 72 -21 270 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. Fourteenth Amendment. See Shapiro v. Thompson, 394 U. S. 618, 631 (1969); United States v. Jackson, 390 U. S. 570, 581 (1968); Dombrowski v. Pfister, 380 U. S. 479, 486-487 (1965); see also Oregon v. Mitchell, 400 U. S. 112, 292 (1970) (Stewart, J., concurring and dissenting). IV From what has been stated above, it is clear that the city’s action in closing the pools because of opposition to the decision in Clark v. Thompson was “an exercise of the state police power which trenches upon the constitutionally protected freedom from invidious official discrimination based on race.” McLaughlin v. Florida, 379 pates in a subterfuge whereby pools are nominally run by ‘private parties’ but actually by the city, relief will be available in the federal courts.” This is but a partial summary of the litigation that may lie ahead as some cities attempt to avoid the requirement that public facilities be operated on an integrated basis. It demonstrates that it is surely wrong to suggest that simply because a city presently operates no segregated facilities there is nothing that will need to be done by way of litigation to enforce the Fourteenth Amendment in the future. Assume for instance that it can be shown that a city is providing some form of covert assistance to a “private” organization such as the YMCA to run swimming pools on a segregated basis, one for the whites and one for the Negroes; another example would be a “desegregated” public school offering segregated classes, perhaps including physical education and swimming. Although we are all agreed that such conduct is illegal, the majority apparently believes that allowing a city to close public facilities solely because of opposition to desegregation would exert no effect whatsoever on the deliberations of Negro plaintiffs considering a court challenge to these newer, more subtle discriminatory practices. See n. 10, supra. To me, it is clear that the majority’s edict places a powerful weapon at the disposal of public officials hostile to fulfilling the promise of the Fourteenth Amendment. Threat of suit by Negroes in either case hypothesized above is likely to be countered by a threat, and perhaps action, to close the covertly run segregated pools—in schools or outside. PALMER V. THOMPSON 271 217 Marshall, J., dissenting U. S. 184, 196 (1964). As such, it “bears a heavy burden of justification . . . and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy.” Ibid.; see also Loving v. Virginia, 388 U. S. 1 (1967). The city has only opposition to desegregation to offer as a justification for closing the pools, and this opposition operates both to demean the Negroes of Jackson and to deter them from exercising their constitutional and statutory rights. The record is clear that these public facilities had been maintained and would have been maintained but for one event: a court order to open them to all citizens without regard to race. I would reverse the judgment of the Court of Appeals and remand the cause for further proceedings. Mr. Justice Marshall, with whom Mr. Justice Brennan and Mr. Justice White join, dissenting. While I am in complete agreement with the opinions of Justices Douglas and White, I am obliged to add a few words of my own. First, the majority and concurring opinions’ reliance on the “facially equal effect upon all citizens” of the decision to discontinue all public pools is misplaced. As long ago as 1948 in Shelley v. Kraemer, 334 U. S. 1, 22, this Court held: “The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” 272 OCTOBER TERM, 1970 Marshall, J., dissenting 403 U. S. In short, when the officials of Jackson, Mississippi, in the circumstances of this case detailed by Mr. Justice White denied a single Negro child the opportunity to go swimming simply because he is a Negro, rights guaranteed to that child by the Fourteenth Amendment were lost. The fact that the color of his skin is used to prevent others from swimming in public pools is irrelevant. Second, since Brown v. Board of Education, 347 U. S. 483 (1954), public schools and public recreational facilities such as swimming pools have received identical Fourteenth Amendment protection. Indeed, exactly one week after Brown I this Court remanded three cases in the same per curiam: Florida ex rel. Hawkins v. Board of Control of Florida; Tureaud v. Board of Supervisors; and Muir v. Louisville Park Theatrical Assn., 347 U. S. 971. The first two involved university education and the latter involved recreational facilities. Even before Brown II, 349 U. S. 294 (1955), it was recognized as obvious that “racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State; for if that power cannot be invoked to sustain racial segregation in the schools, where attendance is compulsory and racial friction may be apprehended from the enforced commingling of the races, it cannot be sustained with respect to public beach and bathhouse facilities, the use of which is entirely optional.” Dawson v. Mayor and City Council of Baltimore, 220 F. 2d 386, 387 (CA4), aff’d per curiam, 350 U. S. 877 (1955). See also Department of Conservation & Development v. Tate, 231 F. 2d 615 (CA4), cert, denied, 352 U. S. 838 (1956). By effectively removing publicly owned swimming pools from the protection of the Fourteenth Amendment—at least if the pools are outside school buildings— the majority and concurring opinions turn the clock back 17 years. After losing a hard fought legal battle to PALMER V. THOMPSON 273 217 Marshall, J., dissenting maintain segregation in public facilities, the Jackson, Mississippi, authorities now seek to pick and choose* which of the existing facilities will be kept open. Their choice is rationalized on the basis of economic need and is even more transparent than putting the matter to a referendum vote. Finally, I cannot conceive why the writers of the concurring opinions believe that the city is “locked in” and must operate the pools no matter what the economic consequences. Certainly, I am not bound by any admission of an attorney at oral argument as to his version of the law. Equity courts have always had continuing supervisory powers over their decrees; and if a proper basis for closing the facilities—other than a conclusory statement about the projected human and thus economic consequences of desegregation—could be shown, swimming pools, as I imagine schools or even golf courses, could be closed. I dissent. *The economic loss incident to the operation of public swimming pools could not be much more than that incident to maintaining public golf courses that charge green fees of $0.75 to $1.25, admittedly the lowest in the country. 274 OCTOBER TERM, 1970 Syllabus 403 U. S. AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA et al. v. LOCKRIDGE CERTIORARI TO THE SUPREME COURT OF IDAHO No. 76. Argued December 15, 1970—Decided June 14, 1971 Respondent, who had been discharged from employment on the ground that he had forfeited his good standing membership in petitioner Union by dues arrearage and was therefore subject to termination under the union security clause in the applicable collective-bargaining agreement, brought suit in the state court against the Union and the employer (which was later dropped as a party). The two-count complaint charged (1) that the Union in suspending respondent from membership, which resulted in his loss of employment, acted wrongfully and deprived respondent of the employment with his employer that accrued to him and would accrue to him by reason of his employment, seniority, and experience, and (2) that by the suspension in violation of the Union’s constitution and general laws (which constituted a contract between respondent as a union member and the Union) the Union had breached its contract with respondent. The trial court, rejecting the Union’s contention that the complaint charged the commission of an unfair labor practice within the exclusive jurisdiction of the National Labor Relations Board (NLRB), held that it had jurisdiction under Machinists v. Gonzales, 356 U. S. 617, concluded that there had been a breach of contract, for which it awarded money damages for lost wages, and ordered respondent restored to union membership. The Idaho Supreme Court, which also ordered respondent’s seniority rights restored, affirmed by a divided vote, concluding that, although the Union’s conduct “did most certainly” violate §§ 8 (b)(1) (A) and 8(b)(2) of the National Labor Relations Act and “probably caused the employer to violate § 8(a) (3),” the state courts had jurisdiction because the complaint charged a breach of contract rather than an unfair labor practice; state courts in interpreting contract terms deal with different conduct than would the NLRB in deciding whether a union is discriminating against a member; and Gonzales, supra, constitutes an exception that permits state courts to exercise jurisdiction in a case like this. Held: MOTOR COACH EMPLOYEES v. LOCKRIDGE 275 274 Syllabus 1. Respondent’s complaint that the Union had wrongfully interfered with his employment relation involved a matter that was arguably protected by § 7 or prohibited by § 8 of the National Labor Relations Act and thus was within the exclusive jurisdiction of the NLRB. San Diego Building Trades Council v. Garmon, 359 U. S. 236. Pp. 285-291. 2. The reasons relied on for the assumption of state court jurisdiction in this case do not suffice to overcome the factors on which the pre-emption doctrine of Garmon was predicated, viz., the congressional purpose for effectuating a comprehensive national labor policy to be administered by an expert central agency rather than by a federalized judicial system; the necessity for carrying out that labor policy without specific congressional direction or judicial resolution on a case-by-case basis; and the avoidance of different treatment of the judicial power to deal with conduct that the Act protects from that which the Act prohibits. Pp. 285-297. (a) Since pre-emption is designed to shield the system from conflicting regulation of conduct, the formal description of that conduct (here the characterization that a breach of contract was involved) is immaterial. Pp. 291-292. (b) Since the conduct here was arguably protected by § 7 or prohibited by § 8 of the Act, the substantial interests sought to be protected by the pre-emption doctrine are directly involved, and the fact that the Union may have misconstrued its own rules in this case would not be treated by the NLRB as a defense to a claimed violation of §8 (b)(2). Pp. 292-293. (c) The Gonzales case “was focused on purely internal union matters” and the state courts only had to consider the union’s constitution and bylaws, whereas respondent’s case turned on the construction of the applicable union security clause, as to which federal concern is pervasive and its regulation complex. Pp. 293-297. 3. Respondent’s contention that his action is excepted from the Garmon principle as being a suit for the enforcement of a collectivebargaining agreement is without merit since respondent specifically dropped the employer as a defendant, as is his alternative contention that his suit is essentially one to redress the Union’s breach of its duty of fair representation, for to sustain such a claim respondent would have to prove “arbitrary or bad faith conduct on the part of the union,” whereas the Idaho Supreme Court found only that the Union had misinterpreted the contract. Pp. 298-301. 93 Idaho 294, 460 P. 2d 719, reversed. 276 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Harlan, J., delivered the opinion of the Court, in which Black, Brennan, Stewart, and Marshall, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 302. White, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 309. Blackmun, J., filed a dissenting statement, post, p. 332. Isaac N. Groner argued the cause for petitioners. With him on the briefs were Earle W. Putnam and Paul T. Bailey. John L. Kilcullen argued the cause for respondent. With him on the brief were Robert W. Green and Samuel Kaufman. Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Linda Sher for the National Labor Relations Board, and by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations. Jonathan C. Gibson filed a brief for the National Right to Work Legal Defense and Education Foundation as amicus curiae urging affirmance. Mr. Justice Harlan delivered the opinion of the Court. San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), established the general principle that the National Labor Relations Act pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act. That decision represents the watershed in this Court’s continuing effort to mark the extent to which the maintenance of a general federal law of labor relations combined with a centralized administrative agency to implement its provisions necessarily supplants the operation of the more traditional legal processes in this field. We granted certiorari in MOTOR COACH EMPLOYEES v. LOCKRIDGE 277 274 Opinion of the Court this case, 397 U. S. 1006 (1970), because the divided decision of the Idaho Supreme Court demonstrated the need for this Court to provide a fuller explication of the premises upon which Garmon rests and to consider the extent to which that decision must be taken to have modified or superseded this Court’s earlier efforts to treat with the knotty pre-emption problem. I Respondent, Wilson P. Lockridge, has obtained in the Idaho courts a judgment for $32,678.56 against petitioners, Northwest Division 1055 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America and its parent international association,1 on the grounds that, in procuring Lockridge’s discharge from employment, pursuant to a valid union security clause in the applicable collective-bargaining agreement, the Union breached a contractual obligation embodied in the Union’s constitution and bylaws. From May 1943 until November 2, 1959, Lockridge was a member of petitioner Union and employed within the State of Idaho as a bus driver for Western Greyhound Lines, or its predecessor. At the time of Lockridge’s dismissal from the Union, § 3 (a) of the collective-bargaining agreement in effect between the Union and Greyhound provided: “All present employees covered by this contract shall become members of the ASSOCIATION [Union] not later than thirty (30) days following 1 The local and its parent are, of course, separate legal entities for many purposes and were joined as codefendants below so that each appears as a petitioner in this Court. However both will be jointly described throughout this opinion as “the petitioner” or “the Union” since the parent was held liable on the theory that it was responsible for the acts of the local here involved, not on the basis of any separate acts committed only by the parent. 278 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. its effective date and shall remain members as a condition precedent to continued employment. This section shall apply to newly hired employees thirty (30) days from the date of their employment with the COMPANY.” App. 88. In addition, § 91 of the Union’s Constitution and General Laws provided, in pertinent part, that: “All dues ... of the members of this Association are due and payable on the first day of each month for that month .... They must be paid by the fifteenth of the month in order to continue the member in good standing. ... A member in arrears for his dues . . . after the fifteenth day of the month is not in good standing . . . and where a member allows his arrearage ... to run into the second month before paying the same, he shall be debarred from benefits for one month after payment. Where a member allows his arrearage ... to run over the last day of the second month without payment, he does thereby suspend himself from membership in this Association .... Where agreements with employing companies provide that members must be in continuous good financial standing, the member in arrears one month may be suspended from membership and removed from employment, in compliance with the terms of the agreement.” App. 91-92. Prior to September 1959, Lockridge’s dues had been deducted from his paycheck by Greyhound, pursuant to a checkoff arrangement. During that year, however, Lockridge and a few other employees were released at their request from the checkoff, and thereby became obligated to pay their dues directly to the Union’s office in Portland, Oregon. On November 2, 1959, C. A. Bank-head, the treasurer and financial secretary of the union local, suspended Lockridge from membership on the sole ground that since respondent had not yet paid his October MOTOR COACH EMPLOYEES v. LOCKRIDGE 279 274 Opinion of the Court dues he was therefore in arrears contrary to § 91. Bank-head simultaneously notified Greyhound of this determination and requested that Lockridge be removed from employment. Greyhound promptly complied. Lockridge’s wife received notice of the suspension from membership in early November, while her husband was on vacation, and on November 10, 1959, tendered Bankhead a check to cover respondent’s dues for October and November, which Bankhead refused to accept. This chain of events, combined with the disparity between the above-quoted terms of the collective-bargaining agreement and the union constitution and general laws, generated this lawsuit. Lockridge has contended, and the Idaho courts have so held, that because he was less than two months behind in his payment of dues, respondent had not yet “suspended himself from membership” within the meaning of the Union’s rules, but instead had merely ceased to be a “member in good standing.” And, because the collective-bargaining agreement required only that employees “remain members,” those courts held that neither that agreement nor the final sentence of § 91 justified the Union’s action in procuring Lockridge’s discharge. Therefore, the Idaho courts have held, Lockridge’s dismissal violated a promise, implied in law, that the Union would not seek termination of his employment unless he was sufficiently derelict in his dues payments to subject him to loss of his job under the terms of the applicable collective-bargaining agreement. Although the trial court made no formal findings of fact on this score,2 it appears likely that the Union pro 2 Because the Idaho courts treated as irrelevant the actual motivation for the Union’s conduct, see Part III, infra, the trial court did not incorporate in its formal findings of fact and conclusions of law any reference to this checkoff dispute. However, some such evidence was allowed at trial, as well as testimony about the Union’s past 280 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. cured Lockridge’s dismissal in the mistaken belief that the applicable union security agreement with Greyhound did, in fact, require employees to remain members in good standing and that the Union insisted on what it thought was a technically valid position because it was piqued by Lockridge’s obtaining his release from the checkoff. The trial court did find specifically that “almost without exception” it had been the past practice of this local division of the Union merely to suspend delinquent members from service, rather than to strip them of membership, and to put them back to work without loss of seniority when their dues were paid. Lockridge initially made some efforts, with Bankhead’s assistance, to obtain reinstatement in the Union but these proved unsuccessful. No charges were filed before the National Labor Relations Board.3 Instead, Lockridge practice regarding dues-delinquent members, on the theory that this might ultimately bear on the issue whether Lockridge had properly exhausted his administrative remedies. The trial judge in his initial memorandum decision, however, did indicate his belief that “the true facts are” as stated in the text accompanying this footnote. 3 It appears that at least one other person, Elmer Day, was similarly suspended from membership in the Union and discharged from Greyhound. On November 12, 1959, he filed a formal charge with the Board’s Regional Director. On December 15, 1959, the Director advised Day, by letter, that “it appears that, because there is insufficient evidence of violations, further proceedings are not warranted at this time. I am therefore refusing to issue Complaint in these matters.” The Director further informed Day that “you may obtain a review of this action by fifing a request for such review with the General Counsel of the National Labor Relations Board . . . .” Day did not seek review. Instead, he filed suit against the Union in the Circuit Court of Multnomah County, Oregon, for tortious interference with employment, and obtained a jury award for general and punitive damages. On appeal, the Supreme Court of Oregon (two judges dissenting) reversed, holding the conduct complained of to be within the Board’s exclusive jurisdiction. Day v. Northwest Division 1055, 238 Ore. 624, 389 P. 2d 42 (1964). (Some of these facts are taken from the dissenting opinion in that case.) MOTOR COACH EMPLOYEES v. LOCKRIDGE 281 274 Opinion of the Court filed suit in September 1960 in the Idaho State District Court against the Union and Greyhound, which was later dropped as a party. That court, on the Union’s motion, dismissed the complaint in April 1961 on the grounds that it charged the Union with the commission of an unfair labor practice and consequently fell within the exclusive jurisdiction of the NLRB. A year later, the Idaho Supreme Court reversed, holding that the state courts had jurisdiction under this Court’s decision in Machinists v. Gonzales, 356 U. S. 617 (1958), and remanded for trial on the merits. Lockridge v. Amalgamated Assn, of St., El. Ry. M. C. Emp., 84 Idaho 201, 369 P. 2d 1006 (1962). In 1965 Lockridge filed a second amended complaint which has since served as the basis for this lawsuit. Its first count alleged that “in suspending plaintiff from membership in the [Union] which resulted in plaintiff’s loss of employment, the [Union] . . . acted wantonly, wilfully and wrongfully and without just cause, and . . . deprived plaintiff of his . . . employment with Greyhound Corporation that accrued to him and would accrue to him by reason of his employment, seniority and experience, and plaintiff has been harassed and subject to mental anguish . . . App. 46-47. Count Two, sounding squarely in contract, alleged that “in wrongfully suspending plaintiff from membership in the [Union], which resulted in plaintiff’s discharge from employment with the Greyhound Corporation, the [Union] . . . acted wrongfully, wantonly, wilfully and maliciously and without just cause and violated the constitution and general laws of the [Union] which constituted a contract between the plaintiff as a member thereof and the [Union], and as a result of said breach of contract plaintiff has been deprived of his . . . employment with . . . 282 OCTOBER TERM, 1970 Opinion of the Court 403 IT. S. Greyhound Corporation . . . and plaintiff has been embarrassed and subjected to mental anguish . . . .” App. 48. The complaint sought damages in the amount of $212,000 “and such other and further relief as to the court may appear meet and equitable in the premises.” Ibid. After trial, the Idaho District Court found the facts as stated above and held that they did, indeed, amount to a breach of contract. The court felt itself bound by the prior determination of the Idaho Supreme Court to consider that it might properly exercise jurisdiction over the controversy and to “decide [the] case on the theories of” Machinists v. Gonzales, supra. Consequently, the trial judge concluded that Lockridge was entitled to a decree restoring him to membership in the Union, “although plaintiff has never sought such remedy.” Lockridge was also awarded $32,678.56 as compensation for wages actually lost due to his dismissal from Greyhound’s employ, but his requests for future damages arising from continued loss of employment, compensation for loss of seniority or fringe benefits, and punitive damages were all denied. On appeal the Idaho Supreme Court affirmed, over one dissenting vote, except that it also ordered restoration of respondent’s seniority rights. 93 Idaho 294, 460 P. 2d 719 (1969). Having granted certiorari for the reasons stated at the outset of this opinion, we now reverse. II A On the surface, this might appear to be a routine and simple case. Section 8 (b) (2) of the National Labor Relations Act, as amended, 61 Stat. 141, 29 U. S. C. §158 (b)(2), makes it an unfair labor practice for a union “to cause or attempt to cause an employer to dis- MOTOR COACH EMPLOYEES v. LOCKRIDGE 283 274 Opinion of the Court criminate against an employee in violation of subsection (a)(3) ... or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” Section 8 (b)(1)(A), 29 U. S. C. § 158 (b)(1)(A), makes it an unfair labor practice for a union “to restrain or coerce . . . employees in the exercise of the rights guaranteed in section 7,” which includes the right not only “to form, join, or assist labor organizations” but also “the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a)(3).” 61 Stat. 140, 29 U. S. C. § 157. Section 8 (a)(3) makes it an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization: Provided, That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later . . . : Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization ... if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly re 284 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. quired as a condition of acquiring or retaining membership . . . .” 29 U. S. C. § 158 (a)(3). Further, in San Diego Building Trades Council v. Garmon, 359 U. S., at 245, we held that the National Labor Relations Act pre-empts the jurisdiction of state and federal courts to regulate conduct “arguably subject to § 7 or § 8 of the Act.” On their face, the abovequoted provisions of the Act at least arguably either permit or forbid the union conduct dealt with by the judgment below. For the evident thrust of this aspect of the federal statutory scheme is to permit the enforcement of union security clauses, by dismissal from employment, only for failure to pay dues. Whatever other sanctions may be employed to exact compliance with those internal union rules unrelated to dues payment, the Act seems generally to exclude dismissal from employment. See Radio Officers’ Union v. NLRB, 347 U. S. 17 (1954). Indeed, in the course of rejecting petitioner’s pre-emption argument, the Idaho Supreme Court stated that, in its opinion, the Union “did most certainly violate 8(b)(1)(A), did most certainly violate 8 (b) (2) . . . and probably caused the employer to violate 8 (a)(3).” 93 Idaho, at 299, 460 P. 2d, at 724. Thus, given the broad pre-emption principle enunciated in Garmon, the want of state court power to resolve Lockridge’s complaint might well seem to follow as a matter of course. The Idaho Supreme Court, however, concluded that it nevertheless possessed jurisdiction in these circumstances. That determination, as we understand it, rested upon three separate propositions, all of which are urged here by respondent. The first is that the Union’s conduct was not only an unfair labor practice, but a breach of its contract with Lockridge as well. “Pre-emption is not established simply by showing that the same facts will sustain two different legal wrongs.” 93 Idaho, at 300, MOTOR COACH EMPLOYEES v. LOCKRIDGE 285 274 Opinion of the Court 460 P. 2d, at 725. In other words Garmon, the state court and respondent assert, states a principle applicable only where the state law invoked is designed specifically to regulate labor relations; it has no force where the State applies its general common law of contracts to resolve disputes between a union and its members. Secondly, it is urged that the facts that might be shown to vindicate Lockridge’s claim in the Idaho state courts differ from those relevant to proceedings governed by the National Labor Relations Act. It is said that the conduct regulated by the Act is union and employer discrimination; general contract law takes into account only the correctness of competing interpretations of the language embodied in agreements. 93 Idaho, at 303-304, 460 P. 2d, at 728-729. Finally, there recurs throughout the state court opinion, and the arguments of respondent here, the theme that the facts of the instant case render it virtually indistinguishable from Machinists n. Gonzales, 356 U. S. 617 (1958), where this Court upheld the exercise of state court jurisdiction in an opinion written only one Term prior to Garmon, by the author of Garmon and which was approvingly cited in the Garmon opinion itself. We do not believe that any of these arguments suffice to overcome the plain purport of Garmon as applied to the facts of this case. However, we have determined to treat these considerations at some length because of the understandable confusion, perhaps in a measure attributable to the previous opinions of this Court, they reflect over the jurisprudential bases upon which the Garmon doctrine rests. B The constitutional principles of pre-emption, in whatever particular field of law they operate, are designed with a common end in view: to avoid conflicting regulation of conduct by various official bodies which might 427-293 0 - 72 - 22 286 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. have some authority over the subject matter. A full understanding of the particular pre-emption rule set forth in Garmon especially requires, we think, appreciation of the precise nature and extent of the potential for injurious conflict that would inhere in a system unaffected by such a doctrine, and also the setting in which the general problem of accommodating conflicting claims of competence to resolve disputes touching upon labor relations has been presented to this Court. The course of events that eventuated in the enactment of a comprehensive national labor law, entrusted for its administration and development to a centralized, expert agency, as well as the very fact of that enactment itself, reveals that a primary factor in this development was the perceived incapacity of common-law courts and state legislatures, acting alone, to provide an informed and coherent basis for stabilizing labor relations conflict and for equitably and delicately structuring the balance of power among competing forces so as to further the common good.4 The principle of pre-emption that informs our general national labor law was born of this Court’s efforts, without the aid of explicit congressional guidance, to delimit state and federal judicial authority over labor disputes in order to preclude, so far as reasonably possible, conflict between the exertion of judicial and administrative power in the attainment of the multifaceted policies underlying the federal scheme. As it appears to us, nothing could serve more fully to defeat the congressional goals underlying the Act than to subject, without limitation, the relationships it seeks to create to the concurrent jurisdiction of state and federal courts free to apply the general local law. Nor 4 For a discussion of these problems that formed a backdrop for the federal act, see H. Wellington, Labor and the Legal Process, c. 1 (1968). See also Cox, Federalism in the Law of Labor Relations, 67 Harv. L. Rev. 1297, 1302-1304, 1315-1317 (1954). MOTOR COACH EMPLOYEES v. LOCKRIDGE 287 274 Opinion of the Court would an approach suffice that sought merely to avoid disparity in the content of proscriptive behavioral rules. As the Court observed in Garner v. Teamsters Union, 346 U. S. 485, 490-491 (1953), Congress in establishing overriding federal supervision of labor law “did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision . . . . Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. ... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” Conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy. As the passage from Garner indicates, in matters of dispute concerning labor relations a simple recitation of the formally prescribed rights and duties of the parties constitutes an inadequate description of the actual process for settlement Congress has provided. The technique of administration and the range and nature of those remedies that are and are not available is a fundamental part and parcel of the operative legal system established by the National Labor Relations Act. “Administration is more than a means of regulation ; administration is regulation. We have been concerned with conflict in its 288 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. broadest sense; conflict with a complex and interrelated federal scheme of law, remedy, and administration.” Garmon, 359 U. S., at 243. The rationale for pre-emption, then, rests in large measure upon our determination that when it set down a federal labor policy Congress plainly meant to do more than simply to alter the then-prevailing substantive law. It sought as well to restructure fundamentally the processes for effectuating that policy, deliberately placing the responsibility for applying and developing this comprehensive legal system in the hands of an expert administrative body rather than the federalized judicial system.5 Thus, that a local court, while adjudicating a 5 This appears to be the precise point of difference between our assessment of congressional purpose and that of Mr. Justice White. While it is not clear how he would treat the Garmon principle where the conflict is between unions and employers, he expressly argues that state power to regulate union conduct harmful to its members that is within the compass of the National Labor Relations Act should be unlimited, except by the obvious qualification that States may not punish conduct affirmatively protected by federal law. Thus, in his view, when it enacted the NLRA, Congress would have fully served those interests it intended to promote in the conduct of unionmember relations had it simply declared that the States may not proscribe certain, defined conduct. Certainly, he is prepared to adopt a judicial construction of the Act that is consistent only with such a view of congressional intent. At bottom, what his position seems to imply is that giving the National Labor Relations Board jurisdiction to enforce federal law regulating the use of union security clauses was largely, if not wholly, without rational purpose. As we have explained at some length above, we do not understand how courts may properly take such a limited view of congressional intent in the face of legislation that is in fact much more wide ranging, and in the absence of a contrary expression of intention from Congress itself. Further, Mr. Justice White apparently regards the remedial aspects of the federal scheme as unimportant to those who designed it. For example, assuming arguendo that petitioner’s conduct was prohibited under both federal and state law, he would deem it of no MOTOR COACH EMPLOYEES v. LOCKRIDGE 289 274 Opinion of the Court labor dispute also within the jurisdiction of the NLRB, may purport to apply legal rules identical to those prescribed in the federal Act or may eschew the authority to define or apply principles specifically developed to regulate labor relations does not mean that all relevant potential for debilitating conflict is absent. A second factor that has played an important role in our shaping of the pre-emption doctrine has been the necessity to act without specific congressional direction. The precise extent to which state law must be displaced to achieve those unifying ends sought by the national legislature has never been determined by the Congress. This has, quite frankly, left the Court with few available options. We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States. Nor can we proceed on a case-by-case basis to determine whether each particular final judicial pronouncement does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy. This Court national significance if one State punished such conduct with a jail sentence, and another utilized punitive damages, while the NLRB merely awarded back pay. His position apparently is that Congress considered any state tribunal equally capable, with the Board, of assessing the appropriateness of a given remedy and was unconcerned about disparities in the reactions of the States to unlawful union behavior. This argument, too, seems incompatible with the simple fact that Congress committed enforcement of the federal law here involved to a centralized agency. For these reasons, Mr. Justice White’s analogies do not persuade us. Unlike the problem here under review, Congress did not put enforcement of the Labor-Management Reporting and Disclosure Act of 1959 into the hands of the Board. 73 Stat. 519. And it affirmatively expressed an intention that the Board not possess preemptive jurisdiction over suits to enforce collective bargaining agreements. See Part III, infra. 290 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. is ill-equipped to play such a role and the federal system dictates that this problem be solved with a rule capable of relatively easy application, so that lower courts may largely police themselves in this regard. Equally important, such a principle would fail to take account of the fact, as discussed above, that simple congruity of legal rules does not, in this area, prove the absence of untenable conflict. Further, it is surely not possible for this Court to treat the National Labor Relations Act section by section, committing enforcement of some of its provisions wholly to the NLRB and others to the concurrent domain of local law. Nothing in the language or underlying purposes of the Act suggests any basis for such distinctions. Finally, treating differently judicial power to deal with conduct protected by the Act from that prohibited by it would likewise be unsatisfactory.6 Both areas equally involve conduct whose legality is governed by federal law, the application of which Congress committed to the Board, not courts. This is not to say, however, that these inherent limitations on this Court’s ability to state a workable rule that comports reasonably with apparent congressional objectives are necessarily self-evident. In fact, varying approaches were taken by the Court in initially grappling with this pre-emption problem. Thus, for example, some early cases suggested the true distinction lay between judicial application of general common law, which was permissible, as opposed to state rules specifically designed to regulate labor relations, which were pre-empted. See, 6 The objections raised to this latter point, post, at 325-332 (White, J., dissenting), seem largely irrelevant to the case under review. This is not a situation where the sole argument for preemption is that the union’s conduct was arguably protected. Clearly, if the facts are as respondent believes them to be, there is ample reason to conclude that petitioner probably committed an unfair labor practice. MOTOR COACH EMPLOYEES v. LOCKRIDGE 291 274 Opinion of the Court e. g., Automobile Workers v. Russell, 356 U. S. 634, 645 (1958). Others made pre-emption turn on whether the States purported to apply a remedy not provided for by the federal scheme, e. g., Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 479-480 (1955), while in still others the Court undertook a thorough scrutiny of the federal Act to ascertain whether the state courts had, in fact, arrived at conclusions inconsistent with its provisions, e. g., Automobile Workers v. Wisconsin Employment Relations Bd., 336 U. S. 245 (1949). For the reasons outlined above none of these approaches proved satisfactory, however, and each was ultimately abandoned. It was, in short, experience—not pure logic—which initially taught that each of these methods sacrificed important federal interests in a uniform law of labor relations centrally administered by an expert agency without yielding anything in return by way of predictability or ease of judicial application. The failure of alternative analyses and the interplay of the foregoing policy considerations, then, led this Court to hold in Garmon, 359 U. S., at 244: “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.” C Upon these premises, we think that Garmon rather clearly dictates reversal of the judgment below. None of the propositions asserted to support that judgment 292 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. can withstand an application, in light of those factors that compelled its promulgation, of the Garmon rule. Assuredly the proposition that Lockridge’s complaint was not subject to the exclusive jurisdiction of the NLRB because it charged a breach of contract rather than an unfair labor practice is not tenable. Pre-emption, as shown above, is designed to shield the system from conflicting regulation of conduct. It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern. Indeed, the notion that a relevant distinction exists for such purposes between particularized and generalized labor law was explicitly rejected in Garmon itself. 359 U. S., at 244. The second argument, closely related to the first, is that the state courts, in resolving this controversy, did deal with different conduct, i. e., interpretation of contractual terms, than would the NLRB which would be required to decide whether the Union discriminated against Lockridge. At bottom, of course, the Union’s action in procuring Lockridge’s dismissal from employment is the conduct which Idaho courts have sought to regulate. Thus, this second point demonstrates at best that Idaho defines differently what sorts of such union conduct may permissibly be proscribed. This is to say either that the regulatory schemes, state and federal, conflict (in which case pre-emption is clearly called for) or that Idaho is dealing with conduct to which the federal Act does not speak. If the latter assertion was intended, it is not accurate. As pointed out in Part II-A, supra, the relevant portions of the Act operate to prohibit a union from causing or attempting to cause an employer to discriminate against an employee because his membership in the union has been terminated “on some ground other than” his failure to pay those dues requisite to member- MOTOR COACH EMPLOYEES v. LOCKRIDGE 293 274 Opinion of the Court ship. This has led the Board routinely and frequently to inquire into the proper construction of union regulations in order to ascertain whether the union properly found an employee to have been derelict in his dues-paying responsibilities, where his discharge was procured on the asserted grounds of nonmembership in the union. See, e. g., NLRB v. Allied Independent Union, 238 F. 2d 120 (CA7 1956); NLRB v. Leece-N eville Co., 330 F. 2d 242 (CA6 1964); Communications Workers v. NLRB, 215 F. 2d 835 (CA2 1954); NLRB v. Spector Freight System, Inc., 273 F. 2d 272 (CA8 1960). See generally 3 CCH Lab. L. Rep. fl 4525 (Labor Relations). That a union may in good faith have misconstrued its own rules has not been treated by the Board as a defense to a claimed violation of § 8 (b)(2). In the Board’s view, it is the fact of misapplication by a union of its rules, not the motivation for that discrimination, that constitutes an unfair labor practice. See, in addition to the authorities cited above, Electrical, Radio & Machine Workers v. NLRB, 113 U. S. App. D. C. 342, 347, 307 F. 2d 679, 684 (1962), and Teamsters Local v. NLRB, 365 U. S. 667, 681 (1961) (concurring opinion). From the foregoing, then, it would seem that this case indeed represents one of the clearest instances where the Garmon principle, properly understood, should operate to oust state court jurisdiction. There being no doubt that the conduct here involved was arguably protected by § 7 or prohibited by § 8 of the Act, the full range of very substantial interests the pre-emption doctrine seeks to protect is directly implicated here. However, a final strand of analysis underlies the opinion of the Idaho Supreme Court, and the position of respondent, in this case. Our decision in Machinists N. Gonzales, 356 U. S. 617 (1958), it is argued, fully survived the subsequent reorientation of pre-emption doc 294 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. trine effected by the Garmon decision, providing, in effect, an express exception for the exercise of judicial jurisdiction in cases such as this. The fact situation in Gonzales does resemble in some relevant regards that of the instant case. There the California courts had entertained a complaint by an individual union member claiming he had been expelled from his union in violation of rights conferred upon him by the union’s constitution and bylaws, which allegedly constituted a contract between him and his union. Gonzales prevailed on his breach-of-contract theory and was awarded damages for wages lost due to the revocation of membership as well as a decree providing for his reinstatement in the union. This Court confirmed the California courts’ power to award the monetary damages, the only aspect of the action below challenged in this Court. The primary rationale for the result reached was that California should be competent to “fill out,” 356 U. S., at 620, the reinstatement remedy by utilizing “the comprehensive relief of equity,” id., at 621, which the Board did not fully possess. Secondarily, it was said that the lawsuit “did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as an unfair labor practice under §8 (b)(2).” Id., at 622. Although it was decided only one Term subsequent to Gonzales, Garmon clearly did not fully embrace the technique of the prior case. It was precisely the realization that disparities in remedies and administration could produce substantial conflict, in the practical sense of the term, between the relevant state and federal regulatory schemes and that this Court could not effectively and responsibly superintend on a case-by-case basis the exertion of state power over matters arguably governed by the National Labor Relations Act that impelled the some- MOTOR COACH EMPLOYEES v. LOCKRIDGE 295 274 Opinion of the Court what broader formulation of the pre-emption doctrine in Garmon. It seems evident that the full-blown rationale of Gonzales could not survive the rule of Garmon. Nevertheless, Garmon did not cast doubt upon the result reached in Gonzales, but cited it approvingly as an example of the fact that state court jurisdiction is not preempted “where the activity regulated was a merely peripheral concern of the . . . Act.” 359 U. S., at 243. Against this background, we attempted to define more precisely the reach of Gonzales within the more comprehensive framework Garmon provided in the companion cases of Plumbers’ Union v. Borden, 373 U. S. 690 (1963), and Iron Workers v. Perko, 373 U. S. 701 (1963). Borden had sued his union in state courts, alleging that the union had arbitrarily refused to refer him to a particular job which he had lined up. He recovered damages, based on lost wages, on the grounds that this conduct constituted both tortious interference with his right to contract for employment and a breach of promise, implicit in his membership arrangement with the union, not to discriminate unfairly against any member or deny him the right to work. Perko had obtained a large money judgment in the Ohio courts on proof that the union had conspired, without cause, to deprive him of employment as a foreman by demanding his discharge from one such position he had held and representing to others that his foreman’s rights had been suspended. We held both Perko’s and Borden’s judgments inconsistent with the Garmon rule essentially for the same reasons we have concluded that Lockridge could not, consistently with the Garmon decision, maintain his lawsuit in the state courts. We further held there was no necessity to “consider the present vitality of [the Gonzales] rationale in the light of more recent decisions,” because in those cases, unlike Gonzales, “the crux of the action[s] . . . concerned alleged interference with the plaintiff’s exist 296 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. ing or prospective employment relations and was not directed to internal union matters.” Because no specific claim for restoration of membership rights had been advanced, “there was no permissible state remedy to which the award of consequential damages for loss of earnings might be subordinated.” Perko, 373 U. S., at 705. See also Borden, 373 U. S., at 697. In sum, what distinguished Gonzales from Borden and Perko was that the former lawsuit “was focused on purely internal union matters,” Borden, supra, at 697, a subject the National Labor Relations Act leaves principally to other processes of law. The possibility that, in defining the scope of the union’s duty to Gonzales, the state courts would directly and consciously implicate principles of federal law was at best tangential and remote. In the instant case, however, this possibility was real and immediate. To assess the legality of his union’s conduct toward Gonzales the California courts needed only to focus upon the union’s constitution and by-laws. Here, however, Lockridge’s entire case turned upon the construction of the applicable union security clause, a matter as to which, as shown above, federal concern is pervasive and its regulation complex. The reasons for Gonzales’ deprivation of union membership had nothing to do with matters of employment, while Lockridge’s cause of action and claim for damages were based solely upon the procurement of his discharge from employment. It cannot plausibly be argued, in any meaningful sense, that Lockridge’s lawsuit “was focused on purely internal union matters.” Although nothing said in Garmon necessarily suggests that States cannot regulate the general conditions which unions may impose on their membership, it surely makes crystal clear that Gonzales does not stand for the proposition that resolution of any union-member conflict is within state competence so long as one of the MOTOR COACH EMPLOYEES v. LOCKRIDGE 297 274 Opinion of the Court remedies provided is restoration of union membership. This much was settled by Borden and Perko, and it is only upon such an unwarrantably broad interpretation of Gonzales that the judgment below could be sustained. Ill The pre-emption doctrine we apply today is, like any other purposefully administered legal principle, not without exception. Those same considerations that underlie Garmon have led this Court to permit the exercise of judicial power over conduct arguably protected or prohibited by the Act where Congress has affirmatively indicated that such power should exist, Smith v. Evening News Assn., 371 U. S. 195 (1962); Teamsters Union v. Morton, 377 U. S. 252 (1964), where this Court cannot, in spite of the force of the policies Garmon seeks to promote, conscientiously presume that Congress meant to intrude so deeply into areas traditionally left to local law, e. g., Linn v. Plant Guard Workers, 383 U. S. 53 (1966); Automobile Workers n. Russell, 356 U. S. 634 (1958),7 and where the particular rule of law sought to be invoked before another tribunal is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve the 7 Garmon itself recognized that Russell permitted state courts “to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order.” 359 U. S., at 247. However, whereas the Court in Russell had justified that result principally upon the broad grounds that state law not specifically relating to labor relations per se was not pre-empted by the Act, the Court in Garmon restated this result as dictated by “the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace [which] is not overridden in the absence of clearly expressed congressional direction.” Ibid. It is, of course, this latter and narrower rationale that survives today. 298 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. interests promoted by the federal labor statutes, Vaca v. Sipes, 386 U. S. 171 (1967).8 In his brief before this Court, respondent has argued for the first time since this lawsuit was started that two of these exceptions to the Garmon principle independently justify the Idaho courts’ exercise of jurisdiction over this controversy. First, Lockridge contends that his action, properly viewed, is one to enforce a collectivebargaining agreement. Alternatively, he asserts the suit, in essence, was one to redress petitioner’s breach of its duty of fair representation. As will be seen, these contentions are somewhat intertwined. In § 301 of the Taft-Hartley Act, 61 Stat. 156, Congress authorized federal courts to exercise jurisdiction over suits brought to enforce collective-bargaining agreements. We have held that such actions are judicially cognizable, even where the conduct alleged was arguably protected or prohibited by the National Labor Relations Act because the history of the enactment of § 301 reveals that “Congress deliberately chose to leave the enforcement of collective agreements ‘to the usual processes of the law.’ ” Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 513 (1962). It is firmly established, further, that state courts retain concurrent jurisdiction to adjudicate such claims, Charles Dowd Box Co., supra, and that individual employees have standing to protect rights conferred upon them by such agreements, Smith v. Evening News, supra; Humphrey v. Moore, 375 U. S. 335 (1964). Our cases also clearly establish that individual union members may sue their employers under § 301 for breach of a promise embedded in the collective-bargaining agree- 8 It may be that a similar exception would arise where the Board affirmatively indicates that, in its view, pre-emption would not be appropriate. Cf. post, at 310-312, 319 n. 2 (White, J., dissenting). As the Board’s amicus brief in the instant case makes clear, no such question is now before us. MOTOR COACH EMPLOYEES v. LOCKRIDGE 299 274 Opinion of the Court ment that was intended to confer a benefit upon the individual. Smith v. Evening News, supra. Plainly, however, this is not such a lawsuit. Lockridge specifically dropped Greyhound as a named party from his initial complaint and has never reasserted a right to redress from his former employer. This Court has further held in Humphrey N. Moore, supra, that § 301 will support, regardless of otherwise applicable pre-emption considerations, a suit in the state courts by a union member against his union that seeks to redress union interference with rights conferred on individual employees by the employer’s promises in the collective-bargaining agreement, where it is proved that such interference constituted a breach of the duty of fair representation. Indeed, in Vaca v. Sipes, 386 U. S. 171 (1967), we held that an action seeking damages for injury inflicted by a breach of a union’s duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agreement. Perhaps Count One of Lockridge’s second amended complaint could be construed to assert either or both of these theories of recovery. However, it is unnecessary to pass upon the extent to which Garmon would be inapplicable if it were shown that in these circumstances petitioner not only breached its contractual obligations to respondent, but did so in a manner that constituted a breach of the duty of fair representation. For such a claim to be made out, Lockridge must have proved “arbitrary or bad-faith conduct on the part of the Union.” Vaca v. Sipes, supra, at 193. There must be “substantial evidence of fraud, deceitful action or dishonest conduct.” Humphrey v. Moore, supra, at 348. Whether these requisite elements have been proved is a matter of federal law. Quite 300 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. obviously, they were not even asserted to be relevant in the proceedings below. As the Idaho Supreme Court stated in affirming the verdict for Lockridge, u[t]his was a misinterpretation of a contract. Whatever the underlying motive for expulsion might have been, this case has been submitted and tried on the interpretation of the contract, not on a theory of discrimination.” 93 Idaho, at 303-304, 460 P. 2d, at 728-729. Thus, the trial judge’s conclusion of law in sustaining Lockridge’s claim specifically incorporates the assumption that the Union’s “acts . . . were predicated solely upon the ground that [Lockridge] had failed to tender periodic dues in conformance with the requirements of the union Constitution and employment contract as they interpreted [it] . . . .” App. 66. Further, the trial court excluded as irrelevant petitioner’s proffer of evidence designed to show that the Union’s interpretation of the contract was reasonably based upon its understanding of prior collective-bargaining agreements negotiated with Greyhound. Tr. 259-260. Nor can it be fairly argued that our resolution of respondent’s final contentions entails simply attaching variegated labels to matters of equal substance. We have exempted § 301 suits from the Garmon principle because of the evident congressional determination that courts should be free to interpret and enforce collectivebargaining agreements even where that process may involve condemning or permitting conduct arguably subject to the protection or prohibition of the National Labor Relations Act. The legislative determination that courts are fully competent to resolve labor relations disputes through focusing on the terms of a collective-bargaining agreement cannot be said to sweep within it the same conclusion with regard to the terms of union-employee contracts that are said to be implied in law. That is MOTOR COACH EMPLOYEES v. LOCKRIDGE 301 274 Opinion of the Court why the principle of Smith v. Evening News is applicable only to those disputes that are governed by the terms of the collective-bargaining agreement itself. Similarly, this Court’s refusal to limit judicial competence to rectify a breach of the duty of fair representation rests upon our judgment that such actions cannot, in the vast majority of situations where they occur, give rise to actual conflict with the operative realities of federal labor policy. The duty of fair representation was judicially evolved, without the participation of the NLRB, to enforce fully the important principle that no individual union member may suffer invidious, hostile treatment at the hands of the majority of his coworkers. Where such union conduct is proved it is clear, beyond doubt, that the conduct could not be otherwise regulated by the substantive federal law. And the fact that the doctrine was originally developed and applied by courts, after passage of the Act, and carries with it the need to adduce substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives ensures that the risk of conflict with the general congressional policy favoring expert, centralized administration, and remedial action is tolerably slight. Vaca v. Sipes, supra, at 180-181. So viewed, the duty of fair representation, properly defined, operates to limit the scope of Garmon where the sheer logic of the preemption principle might otherwise cause it to be extended to a point where its operation might be unjust. Vaca v. Sipes, supra, at 182-183. If, however, the congressional policies Garmon seeks to promote are not to be swallowed up, the very distinction, embedded within the instant lawsuit itself, between honest, mistaken conduct, on the one hand, and deliberate and severely hostile and irrational treatment, on the other, needs strictly to be maintained. 427-293 0 - 72 - 23 302 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. IV Finally, we deem it appropriate to discuss briefly two other considerations underlying the conclusion we have reached in this case. First, our decision must not be taken as expressing any views on the substantive claims of the two parties to this controversy. Indeed, our judgment is, quite simply, that it is not the task of federal or state courts to make such determinations. Secondly, in our explication of the reasons for the Garmon rule, and the various exceptions to it, we noted that, although largely of judicial making, the labor relations pre-emption doctrine finds its basic justification in the presumed intent of Congress. While we do not assert that the Garmon doctrine is without imperfection, we do think that it is founded on reasoned principle and that until it is altered by congressional action or by judicial insights that are born of further experience with it, a heavy burden rests upon those who would, at this late date, ask this Court to abandon Garmon and set out again in quest of a system more nearly perfect. A fair regard for considerations of stare decisis and the coordinate role of the Congress in defining the extent to which federal legislation pre-empts state law strongly support our conclusion that the basic tenets of Garmon should not be disturbed? For the reasons stated above, the judgment below is Reversed. Mr. Justice Douglas, dissenting. I would affirm this judgment on the basis of Machinists n. Gonzales, 356 U. S. 617, rather than overrule it. I 9 Indeed, Mr. Justice White’s dissenting opinion fails to demonstrate the need for such a departure from our traditional judicial role. On the contrary, he affirmatively establishes that Congress has taken an active, conscious role in apportioning power to deal with controversies implicating federal labor law among various competent tribunals. MOTOR COACH EMPLOYEES v. LOCKRIDGE 303 274 Douglas, J., dissenting would not extend San Diego Building Trades Council v. Garmon, 359 U. S. 236, so as to make Lockridge, the employee, seek his relief in faraway Washington, D. C., from the National Labor Relations Board. When we hold that a grievance is “arguably” within the jurisdiction of the National Labor Relations Board and remit the individual employee to the Board for remedial relief, we impose a great hardship on him, especially where he is a lone individual not financed out of a lush treasury. I would allow respondent recourse to litigation in his home town tribunal and not require him to resort to an elusive remedy in distant and remote Washington, D. C., which takes money to reach. He has six months within which to file an unfair labor practice charge with the Regional Director and serve it upon the other party. If he does not file within six months, the claim is barred. 29 U. S. C. § 160 (b). The charge must be in writing and contain either a declaration that the contents are true to the best of his knowledge, or else a notarization. 29 CFR § 101.2. When the charge is received, it is filed, docketed, and given a number (29 CFR § 101.4) and assigned to a member of the field staff for investigation. 29 CFR § 101.4. Following the investigation, the Regional Director makes his decision. “If investigation reveals that there has been no violation of the National Labor Relations Act or the evidence is insufficient to substantiate the charge, the regional director recommends withdrawal of the charge by the person who filed.” 29 CFR § 101.5. If the complaining party does not withdraw the charge, the Regional Director dismisses it. 29 CFR § 101.6. Following dismissal, the complainant has 10 days to appeal the decision to the General Counsel who reviews the decision. Ibid. If the General Counsel holds against the complaining party and refuses to issue an unfair labor practice complaint, the decision is apparently un- 304 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. reviewable. A. Cox & D. Bok, Labor Law 138 (7th ed. 1969); General Drivers Local 886 v. NLRB, 179 F. 2d 492. From the viewpoint of an aggrieved employee, there is not a trace of equity in this long-drawn, expensive remedy. If he musters the resources to exhaust the administrative remedy, the chances are that he too will be exhausted. If the General Counsel issues a complaint, then he stands in line for some time waiting for the Board’s decision.1 If the General Counsel refuses to act, then the employee is absolutely without remedy. For as Garmon states: “[T]he Board may also fail to determine the status of the disputed conduct by declining to assert juris- 1 For the backlog of the Board see 34th Annual Report of NLRB for fiscal year 1969. Table 1, p. 196, shows the following number of unfair labor practice cases: Pending July 1, 1968................................. 7,377 Received fiscal 1969................................ 18,651 On docket fiscal 1969............................... 26,028 Closed fiscal 1969.................................. 18,939 Pending June 30, 1969................................ 7,089 Table 8, p. 212, shows that the 18,939 unfair labor practice cases in 1969 were closed as follows: Before issuance of complaint........................ 16,135 After issuance of complaint, before opening of hearing.. 1,251 After hearing opened, before issuance of Trial Examiner’s decision............................................. 186 After Trial Examiner’s decision, before issuance of Board decision .............................................. 134 After Board order adopting Trial Examiner’s decision in absence of exceptions.................................. 131 After Board decision, before circuit court decree.... 606 After circuit court decree, before Supreme Court action.. 427 After Supreme Court action.............................. 69 Of the foregoing— 31% were dismissed before complaint. 24.9% were settled and adjusted. 36% were withdrawn before complaint. In only 5.7% did the Board issue orders. Id., at 4. MOTOR COACH EMPLOYEES v. LOCKRIDGE 305 274 Douglas, J., dissenting diction, or by refusal of the General Counsel to file a charge, or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance. This was the basic problem underlying our decision in Guss v. Utah Labor Relations Board, 353 U. S. 1. In that case we held that the failure of the National Labor Relations Board to assume jurisdiction did not leave the States free to regulate activities they would otherwise be precluded from regulating. It follows that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act.” 359 U. S., at 245-246. From this it follow’s that if the General Counsel refuses to act, no one may act and the employee is barred from relief in either state or federal court.2 See Day n. Northwest Division 1055, 238 Ore. 624, 389 P. 2d 42, cert, denied, 379 U. S. 878. When we tell a sole individual that his case is “arguably” within the jurisdiction of the Board, we in practical effect deny him any remedy. I repeat what I said before, “When the basic dispute is between a union and an employer, any hiatus that might exist in the jurisdictional balance that has been struck can be filled by resort to economic power. But when the union member has a dispute with his union, he has no power on which to rely.” Plumbers’ Union v. Borden, 373 U. S. 690, 700 (dissenting). Garmon involved a union-employer dispute. It should not be extended to the individual employee who seeks a remedy for his grievance against his union. 2 Since we have yet to rule on the reviewability of the refusal of the General Counsel to act, that route might be open although at present the authority is to the contrary. See A. Cox & D. Bok, Labor Law 138 (7th ed. 1969). 306 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. The complaint in this state court suit sought damages from the union for its action in causing the employer to discharge him pursuant to the union-security clause in the collective-bargaining agreement. It also asked for “such other and further relief as to the court may appear meet and equitable in the premises.” It appears that the collective agreement only required Lockridge to be a member of the union as a condition of employment, not a member in good standing. Lockridge, it appears, was one month delinquent in payment of dues but was still a member. The case for relief by Lockridge in a state court is as strong as, if not stronger than, the case of Gonzales. Lockridge, who was refused employment because of the union’s representations to the employer, had never been expelled from the union. On the other hand, Gonzales had been expelled from the union because he brought assault and battery charges against a representative of the union. He sued for restoration of membership and for damages. The state court found that the union had breached its contract with the employee and ordered him reinstated and awarded him damages. 356 U. S., at 618. We sustained the state court, saying that “the subject matter of the litigation . . . was the breach of a contract governing the relations” between the employee and the union and that the “suit did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as an unfair labor practice under §8 (b)(2).” Id., at 621-622. We held that in those circumstances the state court had power to order the employee reinstated to membership and was not deprived of jurisdiction to “fill out” his remedy by awarding damages. Id., at 620-621. Whether in the present case the discharge of Lockridge MOTOR COACH EMPLOYEES v. LOCKRIDGE 307 274 Douglas, J., dissenting was “arguably” an unfair labor practice within the meaning of Garmon is irrelevant. The reason is that the Board would not have the power to supply the total remedy which Lockridge seeks even if the employer had committed an unfair labor practice. True, the Board has authority to award back pay3 but it has no authority to award damages beyond back pay. Moreover, under Steele v. Louisville & N. R. Co., 323 U. S. 192, the union is in a fiduciary relation to its members. As we stated in Vaca v. Sipes, 386 U. S. 171, 177: “Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” We emphasized in the Sipes case that the Garmon rule was “not applicable to cases involving alleged breaches of the union’s duty of fair representation.” Id., at 181. We held that in this type of case Congress did not intend “to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee’s statutory representative.” Id., at 183. As demonstrated by Mr. Justice White in his dissent in this case, the exceptions to the pre-emption rule are so many and so important that they make amazing the Court’s “uncritical resort to it.” 3 Under § 10 (c) of the Act, 29 U. S. C. § 160 (c), the Board can award back pay against an employer, Phelps Dodge Corp. v. NLRB, 313 U. S. 177, and the Board will order back pay against a union where it causes an employer to discriminate against an employee. See International Association of Heat & Frost Insulators, Local 8Jf, 146 N. L. R. B. 660; United Mine Workers {Blue Diamond Coal Co.), 143 N. L. R. B. 795. 308 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. The wrongs suffered by Lockridge stemmed from the union’s breach of its contract. Rather than overrule Gonzales, we should reaffirm what we said there: “[T]he protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8 (b) (1) of the Act states that ‘this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . .’ 61 Stat. 141, 29 U. S. C. § 158 (b)(1). The present controversy is precisely one that gives legal efficacy under state law to the rules prescribed by a labor organization for ‘retention of membership therein.’ Thus, to preclude a state court from exerting its traditional jurisdiction to determine and enforce the rights of union membership would in many cases leave an unjustly ousted member without remedy for the restoration of his important union rights. Such a drastic result, on the remote possibility of some entanglement with the Board’s enforcement of the national policy, would require a more compelling indication of congressional will than can be found in the interstices of the Taft-Hartley Act.” 356 U. S., at 620. Where the quarrel between the employee and the union is over a particular job, his remedy is before the Board. Plumbers' Union v. Borden, 373 U. S. 690; Iron Workers v. Perko, 373 U. S. 701. But where the union contract is breached by expulsion of the employee, as alleged in Gonzales, or where he is wrongfully treated as no longer being a member of the union (which is the present case) the suit lies in the state court for damages, for declaratory or other relief that he still is a member, and for such other remedies as may be appropriate. MOTOR COACH EMPLOYEES v. LOCKRIDGE 309 274 White, J., dissenting While I joined the dissent in Gonzales, experience under Garmon convinces me that we should not apply its rule to the grievances of individual employees against a union. I would affirm the judgment below. Mr. Justice White, with whom The Chief Justice joins, dissenting. Like Mr. Justice Douglas, I would neither overrule nor eviscerate Machinists v. Gonzales, 356 U. S. 617 (1958). In light of present statutory law and congressional intention gleaned therefrom, state courts should not be foreclosed from extending relief for union deprivation of members’ state law rights under the union constitution and bylaws. Even if I agreed that the doctrine of San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), properly pre-empts such union member actions based on state law where the challenged conduct is arguably an unfair labor practice, I could not join the opinion of the Court since it unqualifiedly applies the same doctrine where the conduct of the union is only arguably protected under the federal law. The Garmon doctrine, which is today reaffirmed and extended, has as its touchstone the presumed congressional goal of a uniform national labor policy; to this end, the Court has believed, the administration of that policy must insofar as is possible be in the hands of a single, centralized agency. In many ways I have no quarrel with this view. Many would agree that as a general matter some degree of uniformity is preferable to the conflicting voices of 50 States, particularly in view of the structure of industrial and commercial activities in this country. Congress determined as much when it enacted the National Labor Relations Act (NLRA). But it is time to recognize that Congress has not federalized the entire law of labor relations, even labormanagement relations, and that within the area occupied 310 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. by federal law neither Congress, this Court, nor the National Labor Relations Board itself has, in the name of uniformity, insisted that the agency always be the exclusive expositor of federal policy in the first instance. To put the matter in proper perspective it will be helpful to set down some of the important contexts in which federal law is implemented by the courts or other institutions without the prior intervention of the Board, as well as those in which state rather than federal law is permitted to operate. Part I, following, undertakes this task. Against that background, Part II deals with union member actions against their union, and Part III considers the Garmon doctrine in those situations where the conduct complained of is arguably protected by federal law. I It is well established that the Board has jurisdiction over unfair labor practices even though they might also be arguable violations of the collective-bargaining agreement and subject to arbitration under the terms of the contract. See 29 U. S. C. § 160 (a); Carey v. Westinghouse Corp., 375 U. S. 261, 272 (1964); NLRB v. Strong, 393 U. S. 357, 360-361 (1969); NLRB v. Acme Industrial Co., 385 U. S. 432 (1967). But as a policy matter the Board will not overturn arbitration awards based on behavior that is also an alleged unfair labor practice if the arbitration proceedings comply with certain procedures, among which is that the arbitrator must have given consideration to the alleged unfair labor practice. Spielberg Mfg. Co., 112 N. L. R. B. 1080 (1955); International Harvester Co., 138 N. L. R. B. 923 (1962), enforced sub nom. Ramsey v. NLRB, 327 F. 2d 784 (CA7 1964). The Board has said: “If complete effectuation of the Federal policy is to be achieved, we firmly believe that the Board, which MOTOR COACH EMPLOYEES v. LOCKRIDGE 311 274 White, J., dissenting is entrusted with the administration of one of the many facets of national labor policy, should give hospitable acceptance to the arbitral process as ‘part and parcel of the collective bargaining process itself,’ and voluntarily withhold its undoubted authority to adjudicate alleged unfair labor practice charges involving the same subject matter, unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act.” International Harvester Co., supra, at 927 (citations omitted). See also Carey v. Westinghouse Corp., supra, at 270-272; Raley’s Inc., 143 N. L. R. B. 256 (1963). Thus, not only does Board policy allow arbitrators to pass on conduct which is also an alleged unfair labor practice, but the Board will not consider an unfair labor practice charge unless the arbitrator has passed on it.1 And even then, the Board has made quite clear that its standard of review is far from de novo; it will let stand an arbitrator’s award not “clearly repugnant” to the Act. See, e. g., Virginia-Carolina Freight Lines, 155 N. L. R. B. 447 (1965), where the Board refused to uphold an arbitrator’s award allowing discharge of an employee for “disloyalty” where the “disloyalty” consisted of seeking assistance from the Board. The Board’s standard of review for arbitration awards seems to be even narrower than the substantial-evidence test, for the Board has not purported to overturn awards simply on the evidence before the arbitrator. The standards chosen by the Board operate entirely separately from the substantial- 1 This obviously does not apply unless the parties have agreed to arbitrate. Cf. Smith n. Evening News Assn., 371 U. S. 195, 196 n. 1 (1962). 312 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. evidence test. See § 10 (e), Administrative Procedure Act, 5 U. S. C. § 706 (1970 ed.). In fact, in International Harvester itself, the Board agreed to accept the arbitrator’s award “since it plainly appears to us that the award is not palpably wrong.” To require a wider scope of evidentiary review, said the Board, “would mean substituting the Board’s judgment for that of the arbitrator, thereby defeating the purposes of the Act and the common goal of national labor policy of encouraging the final adjustment of disputes, ‘as part and parcel of the collective bargaining process.’ ” 138 N. L. R. B., at 929. Congress, no less than the Board, has indicated its approval and endorsement of the arbitral process even though this may result in controversies being adjudicated by forums other than the Board. Section 203 (d) of the Labor Management Relations Act (LMRA), 1947, 61 Stat. 154, 29 U. S. C. § 173 (d), declares: “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collectivebargaining agreement.” See United Steelworkers v. American Mfg. Co., 363 U. S. 564, 566-568 (I960); United Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, 582 (1960). See also § 10 (k) of NLRA, 29 U. S. C. § 160 (k). Indeed, § 301 (a) of the LMRA, 29 U. S. C. § 185 (a), may be considered the birthplace of much of modern arbitration law. As the Court said in Textile Workers v. Lincoln Mills, 353 U. S. 448, 455 (1957): “[Section 301] expresses a federal policy that federal courts should enforce these [arbitration] agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.” MOTOR COACH EMPLOYEES v. LOCKRIDGE 313 274 White, J., dissenting Finally, this Court itself has expressed the view, in construing federal law pursuant to § 301 (a), that the policy of encouraging arbitration was sufficient to overcome considerations favoring pre-emption. In the Court’s words, “Arbitral awards construing a seniority provision ... or awards concerning unfair labor practices, may later end up in conflict with Board rulings.... Yet, as we held in Smith v. Evening News Assn. [371 U. S. 195 (1962)], the possibility of conflict is no barrier to resort to a tribunal other than the Board.” Carey v. Westinghouse Corp., 375 U. S., at 272. The cumulative effect of all of this is that the jurisdiction of one forum—in this case, arbitration—is not displaced simply because the Board also has jurisdiction to act. The policy of pre-emption and, to some extent, of uniformity itself is subordinated to the greater policy of encouraging arbitration of grievances. Deference to the arbitral forum is not the only instance where arguable or conceded unfair labor practices are excepted from the pre-emption doctrine. In Smith n. Evening News Assn., 371 U. S. 195 (1962), the employee brought suit under § 301 (a) of the LMRA, 29 U. S. C. § 185 (a), to enforce the collective-bargaining contract, alleging that the employer discriminated against certain employees because of their union affiliation. The conduct, if proved, would not only have been a violation of the contract but would concededly have been an unfair labor practice as well. The Court expressly rejected the Garmon doctrine in the context of such suits, holding that, while Board jurisdiction over unfair labor practices was not displaced when the conduct also allegedly violated the terms of the contract, neither was the jurisdiction exclusive. This result was consistent with the expressed intent of Congress that enforcement of collectivebargaining agreements be “left to the usual processes of the law,” rather than to the Board. Charles Dowd Box 314 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. Co. v. Courtney, 368 U. S. 502, 511 (1962). See also Local 174 v. Lucas Flour Co., 369 U. S. 95, 101 n. 9 (1962); Sovern, Section 301 and the Primary Jurisdiction of the NLRB, 76 Harv. L. Rev. 529 (1963). These cases, like those dealing with arbitration, indicate a willingness to subordinate the Garmon doctrine when other, more pressing problems are at hand. Here, the policy to be served was that collective-bargaining agreements be enforced by the judiciary, notwithstanding concurrent Board jurisdiction to regulate that activity which was also an unfair labor practice. To be sure, the Court has required that, in the interests of uniform development of the law, state courts must apply federal law. Lucas Flour, supra, at 102-104. But the Court was no less aware in Smith than it had been nine years earlier in Garner v. Teamsters Union, 346 U. S. 485, 490-491 (1953), that: “A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” The point is simply that the perceived interest in judicial adjudication of contractual disputes was more important than the interests of uniformity that would be promoted by pre-emption. In Vaca v. Sipes, 386 U. S. 171 (1967), this Court refused to apply the pre-emption doctrine to suits charging a breach of the union’s duty of fair representation, even though the Board had held that such a breach was also an unfair labor practice. Miranda Fuel Co., 140 N. L. R. B. 181 (1962). Though one reason for this result was that the duty of fair representation had been for the most part developed by the judiciary rather than the Board, the other reason was concern over the possibility of denying a hearing to an employee who felt his individual interests had been unfairly subordinated by the union. The Court expressed fear that, were preemption the rule, “the individual employee injured by MOTOR COACH EMPLOYEES v. LOCKRIDGE 315 274 White, J., dissenting arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.” 386 U. S., at 182. Congress has expressly given a federal cause of action for damages to parties injured by secondary union activity under § 8 (b) (4), which may be enforced by suits brought in either state or federal court. 29 U. S. C. § 187 (b). The union’s activity giving rise to liability is of necessity an unfair labor practice, but Congress elected to have the question adjudicated in court, even though the activity might be the subject of a parallel and possibly inconsistent determination by the Board. See Teamsters Union v. Morton, 3T7 U. S. 252, 256 (1964). Of course federal law governs such cases, at least where the union activity is not violent; and presumably the decisions of the NLRB on secondary activity would be consulted for guidance. But the Congress chose not to have the Board hear such suits, even though the Board is probably far more familiar than the courts with the variety of problems posed by secondary activity. The phenomenon of the no-man’s land and the conclusions that can be drawn on pre-emption are also instructive, for they cast substantial doubt not only on the intent of Congress but on the very foundations of Garmon itself. In Guss v. Utah Labor Relations Board, 353 U. S. 1 (1957), the Court held that States were powerless to intervene in labor disputes where the NLRB possessed jurisdiction, even though the Board had refused to assert its jurisdiction because of the “predominantly local” character of the company’s operations. The Court conceded that this would likely produce “a vast no-man’s-land, subject to regulation by no agency or court,” id., at 10, but insisted this was the intent of the Congress and that Congress could change the situation if it desired. 316 OCTOBER TERM, 1970 White, J., dissenting 403U.S. Congress did change the situation soon thereafter, providing that the States may assert jurisdiction over any dispute where the Board declines to do so because of the insubstantial effect on interstate commerce. § 14 (c) of NLRA, as amended, 73 Stat. 541, 29 U. S. C. § 164 (c). The purpose of this section was to fill the chasm created by Guss. See, e. g., 105 Cong. Rec. 6430 (Sen. Goldwater). The situation was roundly condemned by legislators, who called it variously “a no man’s land, in which there are grievous wrongs and no remedy under American jurisprudence as of this time,” id., at 6413 (Sen. McClellan), and “a stench in the nostrils of justice.” Id., at 6544 (Sen. Ervin). In short, the reaction to Guss indicates that this Court was quite wrong in determining that the no-man’s land was justified in the name of congressional intent to achieve uniformity in law and administration. Of some interest is the fact that Garmon was based upon, and expanded to a significant degree, the rationale of Guss: “It follows [from G^ss] that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act. In the absence of the Board’s clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction. The withdrawal of this narrow area from possible state activity follows from our decisions in Weber and Guss.” 359 U. S., at 246. (Emphasis added.) Yet five months after the announcement of the Garmon decision, Congress in effect overruled Guss and thus at least counseled caution in applying the Garmon rationale. MOTOR COACH EMPLOYEES v. LOCKRIDGE 317 274 White, J., dissenting The provisions of § 14 (c), however, do not allow state jurisdiction where the Board refuses to assert jurisdiction for “policy” reasons, as where the General Counsel refuses to issue a complaint because he is not convinced of the merits of the plaintiff’s cause. In such a situation, Garmon precludes state action (or action by federal courts) because the Board’s action does not define the activity “with unclouded legal significance.” 359 U. S., at 246. In 1965, the Court eased the harsh strictures of Garmon in this area by holding that reasons articulated by the General Counsel for his refusal to issue a complaint would open the way for state action if the explanations “squarely define the nature of the activity” sought to be subjected to Board consideration. Hanna Mining Co. v. Marine Engineers Beneficial Assn., 382 U. S. 181, 192 (1965). Even though federal law is pervasive in labor-management relations, state law is preserved in some respects. At first blush, it might seem that these matters present no problems of uniformity, for there is no national law being applied. But the simple fact that Congress and this Court have deferred to the States in these areas indicates a subordination of the interest in uniformity to the interests of the States. By making the matter one of state law, Congress has not only authorized multiformity on the subject, but practically guaranteed it. The results, as far as uniformity is concerned, are no different than if the States applied federal law with abandon. For example, the controversial § 14 (b) of NLRA, 61 Stat. 151, 29 U. S. C. § 164 (b), has authorized States to choose for themselves whether to require or permit union shops. This allows the States to regulate union or agency shop clauses, Algoma Plywood Co. v. Wisconsin Board, 336 U. S. 301 (1949), Retail Clerks v. Schermerhorn, 373 U. S. 746, 375 U. S. 96 (1963), so that union insistence on a security agreement as part of a col- 427-293 0 - 72 - 24 318 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. lective-bargaining agreement may be prohibited in one State and protected or even encouraged in another. The policy choice made by Congress on this matter necessarily subordinated uniformity in national law to what were perceived to be overriding concerns of the States. Other examples are familiar. In United Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 (1954), the Court upheld a state court damage award for injuries suffered as a result of the tortious conduct of the union’s agent, who threatened violence if the company’s employees did not join the union. The Court assumed that the union conduct was an unfair labor practice, seeking as it did to interfere with the employee’s § 7 right not to join a labor union. But it noted the inadequacy of the existing Board procedure to provide suitable remedies for those injured as a result of the conduct, and was impressed by the fact that to hold the state courts pre-empted “will, in effect, grant petitioners immunity from liability for their tortious conduct.” The Court found “no substantial reason for reaching such a result.” 347 U. S., at 664. Accord, Automobile Workers v. Russell, 356 U. S. 634 (1958); Linn v. Plant Guard Workers, 383 U. S. 53, 61-62 (1966). Again, it is entirely possible that some States will require a greater showing of violence than others before awarding damages, so that behavior that violently seeks to coerce union membership will be prohibited in one State and allowed in another. But the interest in uniformity is subordinated to the larger interests that persons injured by such violence have preserved to them whatever remedies state law may authorize. To summarize, the “rule” of uniformity that the Court invokes today is at best a tattered one, and at worst little more than a myth. In the name of national labor policy, parties are encouraged by the Board, by Congress, and by this Court to seek other forums if MOTOR COACH EMPLOYEES v. LOCKRIDGE 319 274 White, J., dissenting the unfair labor practice arises in an arbitrable dispute, violates the collective-bargaining agreement, or otherwise qualifies as one of the exceptions mentioned.2 Until today, Machinists v. Gonzales, supra, had been thought to stand for the proposition that Garmon did not reach cases “when the possibility of conflict with federal policy is . . . remote.” 356 U. S., at 621. But with today’s emasculation of Gonzales, there is probably little that remains of it. Linn v. Plant Guard Workers, 383 U. S. 53 (1966), was ostensibly based in part on this rationale, id., at 59-61, but it was equally bottomed on Laburnum Construction and other cases upholding state power to regulate matters of “overriding state interest” such as violence or, as in Linn, defamation. I see no reason why this exception has not, for all practical purposes, thus expired. In my view, however, and for the reasons set forth in Part II, Gonzales controls this case.3 2 A possible addition to the list of exceptions is the provision of § 10 (a), 29 U. S. C. § 160 (a), which allows the Board to cede jurisdiction over labor disputes to state agencies if state law is not inconsistent with federal law. However, this provision has never been invoked by the Board. American Bar Assn., The Developing Labor Law 807 (C. Morris ed. 1971). 3 With all respect, the majority’s attempt to distinguish the instant case from Gonzales is unpersuasive. According to the majority, “The reasons for Gonzales’ deprivation of union membership had nothing to do with matters of employment, while Lockridge’s cause of action and claim for damages were based solely upon the procurement of his discharge from employment.” Ante, at 296. In the first place, Lockridge squarely alleged that his damages had been caused by suspension from union membership contrary to the constitution and laws of the union; his cause of action was bottomed upon this breach of duty by the union. More importantly, it is inaccurate to imply, as the foregoing quoted statement does, that Lockridge is somehow different from Gonzales in that Gonzales’ “deprivation of union membership” did not result in his loss of employment. The Gonzales Court said, “The evidence adduced at the trial showed that plaintiff, because of his loss of membership, 320 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. II There are two broad, but overlapping, relationships among employers, labor unions, and union members. On the one hand, there is the relationship between employer and employee, generally termed labor-management relations, which involves the union at virtually every step, where the employees have chosen to be represented by one. The other relationship, union-member relations, involves the affairs between the union and the employee as union member. In enacting the NLRA in 1935, 49 Stat. 449, Congress defined and prohibited unfair labor practices by employers. Experience under the Act showed that labor organizations were quite as capable as employers of pernicious behavior, and in 1947 Congress enacted the Labor Management Relations Act, 61 Stat. 136, which, among other things, protected employees and employers against certain unfair labor practices by labor organizations that were defined by the Act. Protection given employees, whether union members or not, was primarily job related. Although unions were forbidden to restrain or coerce employees in the exercise of their § 7 rights, Congress expressly negated any intention to “impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership . . . .” 29 U. S. C. § 158 (b) (1). The unmistakable focus of both the NLRA and the LMRA is on labor-management relations, rather than union-member relations, as such. was unable to obtain employment and was thereby damaged. . . . [T]his damage was not charged nor treated as the result of an unfair labor practice but as a result of the breach of contract.” 356 U. S., at 622 n. (Quoting the California court’s opinion.) (Emphasis added.) MOTOR COACH EMPLOYEES v. LOCKRIDGE 321 274 White, J., dissenting During the 1950’s there came to light various patterns of union abuse of power, and in the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 519, Congress acted to correct these evils by directly addressing itself to some aspects of union-member affairs. The LMRDA provides a “bill of rights,” which gives union members the right to participate in union affairs, to speak freely, and to be protected from arbitrary discipline. It also imposes certain requirements on unions to disclose their financial affairs, regulates union elections, and safeguards labor organizations against unscrupulous agents or officers. Throughout the Act are provisions for civil or criminal enforcement of the Act in federal courts. See 73 Stat. 523, 525, 529-530, 531, 534, 536, 537, 539. But in a crucial departure from what the Court has held the legislative intention was in regulating labor-management relations, the Congress declared: “Except as explicitly provided to the contrary, nothing in this Act shall reduce or limit the responsibilities of any labor organization or any officer . . . or other representative of a labor organization . . . under any other Federal law or under the laws of any State, and, except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal law or law of any State.” § 603 (a), 73 Stat. 540, 29 U. S. C. § 523 (a) (emphasis added). If this were not clarity enough, Congress also provided in Title I, the “bill of rights”: “Nothing contained in this title shall limit the rights and remedies of any member of a labor organization under any State or Federal law or before any court or other tribunal, or under the constitution 322 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. and bylaws of any labor organization.” § 103, 73 Stat. 523, 29 U. S. C. § 413. Beyond any doubt whatever, although Congress directly imposed some far-reaching federal prohibitions on union conduct, it specifically denied any pre-emption of rights or remedies created by either state law or union constitutions and bylaws. Thus, as to union-member relations, any parallel rights created by the States, either directly or indirectly through enforcement of union constitutions or bylaws, were to stand at full strength. Congress backed up this power by requiring unions to make available to members the constitution and bylaws of the union, as well as financial information. § 201, 73 Stat. 524, 29 U. S. C. § 431. The LMRDA was a major effort by Congress to regulate the rights and responsibilities of the union-member relationship as such, but, as shown by § 603 (a), it was clearly not an attempt to make federal law the exclusive arbiter of this relationship.4 In Gonzales the Court 4 Not only were the rights and obligations created by the LMRDA made supplemental to state law, but large areas of union-member relations were left untouched. For instance, Title I provides that “nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution . . . .” §101 (a)(2), 73 Stat. 522, 29 U. S. C. §411 (a)(2). Precisely what a union member may be required to do as part of his “responsibility . . . toward the organization as an institution” is obviously far ranging, and Congress could no doubt have defined those responsibilities had it chosen to do so. For another instance, Congress protected the right of the union member to sue a labor organization, but conditioned this on whatever exhaustion of “reasonable hearing procedures . . . within such organization” the union may require. §101 (a)(4), 29 U. S. C. §411 (a)(4). When compared to the step-by-step statutory procedure required for the adjudication of unfair labor practices, 29 U. S. C. § 160, it is clear that Congress meant to leave some flexibility to the unions MOTOR COACH EMPLOYEES v. LOCKRIDGE 323 274 White, J., dissenting noted that “the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law . . . .” 356 U. S., at 620. Though in the following year the LMRDA certainly “undertook” to protect members in important respects, it specifically disavowed any notion of pre-empting state law and thus left unimpaired the Gonzales conclusion that state law has a proper role in union-member disputes.5 If, as I have attempted to show in Part I, the Board is not the sole arbiter even of federal law and if, as I have also attempted to show, there is room for the operation of state law in certain areas of even labor-management relations, then to me the conclusion is inescapable that in the area of union-member relations, which Congress has not sought to deal with comprehensively and where Congress has preserved state remedies for the very conduct prohibited by federal law, we should be very careful about assuming congressional intention to brush aside local rights and remedies. Indeed, far from pre-empting state law, one of the major thrusts of the LMRDA was to enforce state rights and remedies. At the very least, the inquiry presented by this or any other case dealing with union-member relations cannot be in dealing with member complaints. Still other examples may be seen by noting what Congress omitted even from mention. Perhaps most important of all in this context is the fact that Congress provided for no central agency, such as it had in the NLRA, to administer the Act. Although the Secretary of Labor has in some respects a major role in implementing the Act, disputes arising under the Act are for the courts in the first instance. 5 The majority’s opinion simply refuses to face this issue. There is no “absence of a contrary expression of intention from Congress,” as the majority contends. See ante, at 288 n. 5. When Congress addressed itself to union-member relations as such it specifically preserved existing state remedies even though there may be federal remedies to redress the same conduct. 324 OCTOBER TERM, 1970 White, J., dissenting 403U.S. answered by automatic invocation of the purported rule of pre-emption in the name of uniformity. Like many States, Idaho construes the union-member relation to be a contractual one, defined by the constitution and bylaws of the union. As such, the contracts are enforceable through the State’s traditional commonlaw jurisdiction. Here, Lockridge was discharged for alleged nonpayment of dues in accordance with the union constitution and brought suit alleging that he had in fact not been unduly tardy and that the union’s action was a breach of the contract. The face of the complaint did not implicate federal law. If the Idaho court were allowed to proceed, it would not have purported to adjudicate an unfair labor practice by reference to federal law but, if it found the conduct unprotected by federal law, see Part III, infra, would have enforced rights and obligations created by the union constitution. The Court nevertheless holds that because the union conduct alleged in the complaint also constitutes, or arguably so, an unfair labor practice, the controversy must be adjudicated by the National Labor Relations Board. I find little in the Court’s opinion to convince me that Congress intended this result. With all respect, I agree with Gonzales that this result is at best “abstractly justifiable, as a matter of wooden logic.” 356 U. S., at 619. Furthermore, this Court’s decision in Smith v. Evening News, supra, seems contrary to the result reached today. Smith held that suits to enforce the collective-bargaining agreement could be brought in state or federal courts under § 301 notwithstanding the fact that the conduct alleged would also constitute an unfair labor practice. Thus, courts enforcing Smith-type actions are dealing in contract rights, not unfair labor practices. There seems little reason why suits for breach of the unionmember contract cannot similarly be brought in state courts (or in federal courts in diversity actions), notwith- MOTOR COACH EMPLOYEES v. LOCKRIDGE 325 274 White, J., dissenting standing the alternate nature of the behavior as an unfair labor practice. Indeed, § 301 actions are governed by federal law and even here the NLRB does not pre-empt the courts. There is even less justification for precluding actions under state law in the area of union-member relations which Congress has expressly said is not an exclusively federal domain. I find no merit in the argument that Congress passed § 301 though recognizing that some § 301 suits would involve unfair labor practices, but, by not providing analogous federal court jurisdiction for breaches of union constitutions, manifested its expectation that breaches which also involve unfair labor practices should be a matter for Board jurisdiction. Some readily imaginable union actions prohibited by Title I of the LMRDA could be unfair labor practices as well, but by providing for federal suit to enforce the remedies, and leaving state remedies untouched, Congress certainly disavowed, as clearly as if it had said so explicitly, any notion that the Board was to pre-empt other forums in passing on statutory breaches which were also unfair labor practices. Arbitration of grievances is a similar situation, since arbitrators, rather than the Board, construe and enforce contractual rights that are breached in the commission of putative unfair labor practices. See Part I, supra. Ill I have attempted to show in Part II that invocation of Garmon-type pre-emption is inappropriate where a union member brings suit against a union for breach of the union’s constitution or bylaws. Wholly apart from such considerations, however, I cannot agree with the opinion of the Court because it reaffirms the Garmon doctrine as applied to conduct arguably protected under § 7, as well as to that arguably prohibited under § 8. 326 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. The essential difference, for present purposes, between activity that is arguably prohibited and that which is arguably protected is that a hearing on the latter activity is virtually impossible unless one deliberately commits an unfair labor practice. In a typical unfair practice case, by alleging conduct arguably prohibited by § 8 the charging party can at least present the General Counsel with the facts, and if the General Counsel issues a complaint, the charging party can present the Board with the facts and arguments to support the claim. But for activity that is arguably protected, there is no provision for an authoritative decision by the Board in the first instance; yet the Garmon rule blindly pre-empts other tribunals. Longshoremen’s Assn. v. Ariadne Shipping Co., 397 U. S. 195, 201 (1970) (White, J., concurring). The Assistant General Counsel of the NLRB has described the situation: “[Application of the Garmon ‘arguably protected’ test in this situation leaves the employer’s interests in an unsatisfactory condition. The employer cannot obtain relief from the state court with respect to activity that may in fact not be protected by section 7 of the Act, and the only way that he can obtain a Board determination of that question is by resorting to self-help measures; if he guesses wrong, this may subject him not only to a Board remedy but also to tort suits. That result is as undesirable as the ‘no-man’s land’ created by the holding in Guss (Footnotes omitted.) Come, Federal Preemption of Labor-Management Relations: Current Problems in the Application of Garmon, 56 Va. L. Rev. 1435, 1444 (1970). I believe that the considerations that justify exceptions to the rule of uniformity apply with greater force to § 7 situations and further, that basic concepts of MOTOR COACH EMPLOYEES v. LOCKRIDGE 327 274 White, J., dissenting fundamental fairness, regardless of their effect on the model of uniformity, counsel against any rule that so inflexibly bars a hearing. A The Assistant General Counsel of the Board has stated the paradox succinctly: “When a union engages in peaceful picketing that is not prohibited by section 8 of the NLRA, a state court cannot enjoin the picketing as a trespass because the activity is ‘arguably protected’ by section 7. But since there is no unfair labor practice, the employer cannot bring the question before the Board for adjudication. The only way for him to get a Board ruling as to whether the picketing is actually protected is to resort to ‘self-help’ to expel the pickets, thereby forcing the union to file unfair labor practice charges to which he can raise the status of the picketing as a defense.” Come, supra, at 1437-1438. Though the most natural arena for this conflict occurs when picketers trespass on private property, see Taggart v. Weinacker's, Inc., 397 U. S. 223, 227 (1970) (Burger, C. J., concurring), Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv. L. Rev. 552 (1970), other instances include “quickie” strikes or slowdowns, see NLRB v. Holcombe, 325 F. 2d 508 (CA5 1963), or employees’ inaccurate complaints to state officials about sanitary conditions in the plant, Walls Mfg. Co. v. NLRB, 116 U. S. App. D. C. 140, 321 F. 2d 753 (1963), or collective activity designed to persuade the employer to hire Negroes, NLRB n. Tanner Motor Livery, Ltd., 349 F. 2d 1 (CA9 1965), or failure to participate in a union check-off, Radio Officers' Union v. NLRB, 347 U. S. 17, 24-28, 39-42 (1954). 328 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. There seems little point in a doctrine that, in the name of national policy, encourages the commission of unfair labor practices, the evils which above all else were the object of the Act. Surely the policy of seeking uniformity in the regulation of labor practices must be given closer scrutiny when it leads to the alternative “solutions” of denying the aggrieved party a hearing or encouraging the commission of a putative unfair labor practice as the price of that hearing.6 6 Perhaps the tools with which the Board can fashion relief in this area are already at hand, in the form of the declaratory order. Such an order is binding on the agency and is judicially reviewable. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 372 n. 3 (1969); Frozen Food Express n. United States, 351 U. S. 40 (1956); Rochester Telephone Corp. v. United States, 307 IT. S. 125 (1939); Pennsylvania R. Co. n. United States, 363 IT. S. 202 (1960). The NLRA gives the Board “authority ... to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions” of the NLRA. § 6, 29 IT. S. C. § 156. The Administrative Procedure Act, in turn, specifically provides that agencies may issue declaratory orders “as in the case of other orders, and in its sound discretion” in order to “terminate a controversy or remove uncertainty.” 5 U. S. C. § 554 (e) (1970 ed.). The Board currently provides for declaratory orders in only a few situations, such as for determination of the commercial impact aspect of the jurisdictional issue where the employer has both unfair labor practice charges and representation proceedings pending before the Board, 29 CFR §§ 102.105-102.110. The use of declaratory orders in unfair labor practice proceedings is nonexistent, and the same seems to be true for determining whether or not activities arguably subject to § 7 are protected. See Hickey, Declaratory Orders and the National Labor Relations Board, 45 Notre Dame Law. 89, 106 (1969). Before an agency may issue a declaratory order, it must have independent subject matter jurisdiction. But we held in Red Lion, supra, that the FCC’s declaratory order in that case could be sustained on any of several grounds including the requirement that the FCC see that the “public interest be served” in granting and renewing licenses. So here, the argument for Board jurisdiction would be that it is empowered to “prevent any person from engaging MOTOR COACH EMPLOYEES v. LOCKRIDGE 329 274 White, J., dissenting B The exceptions to the pre-emption rule are so many and so important as to cast substantial doubt on the Court’s uncritical resort to it, as I have attempted to show in Part I. When considered in conjunction with arguably protected activity, however, these exceptions do more than mock the rule; they illustrate substantively why invocation of the rule against such activity is a disservice to the greater interests of national labor policy. For example, the refusal to pre-empt arbitrable disputes serves the policy of encouraging arbitration, a policy universally agreed to be of greater importance than uniformity. See Part I, supra. The policy at stake in § 7 cases is simply to secure a resolution of the dispute rather than none at all. Yet the Court’s opinion would insist on pre-empting such disputes from the States even though there is no way to present them to the Board. If the Board refused to hear a dispute alleging an unfair labor practice because it wished to encourage arbitration, but ignored the fact that the parties had no arbitration clause in their contract, we could hardly consider arbitration to have been encouraged. But, with all respect, the Court’s opinion today is just as exasperating. Similarly, in holding that alleged breaches of the union’s duty of fair representation were not pre-empted, Vaca v. Sipes, supra, the Court was apprehensive that the worker would be without a forum if the General in any unfair labor practice.” 29 U. S. C. § 160 (a). If, as pointed out earlier, the price of not resorting to an adequate forum for resolution of the § 7 status can be the commission of an unfair labor practice, the power of the Board to prevent unfair labor practices gives it jurisdiction to issue such § 7 declaratory orders. Such an order finding certain conduct protected would override state law, but would be reviewable. If the conduct was found unprotected, there would be no barrier to suits based on state law. 330 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. Counsel refused to initiate an unfair labor practice complaint. How much more pressing must those considerations be where the Board is in fact barred from regular adjudication. The “intensely practical considerations” that we felt governed in Vaca, 386 U. S., at 183, seem even more practical here, especially in view of the concern expressed in Vaca that the aggrieved party be able to obtain a hearing on his complaint. If the possible refusal of the General Counsel to issue a complaint is a prominent reason for refusing to pre-empt the States, I should think that, a jortiori, his inability to act at all is at least as great a justification for doing away with preemption in this situation. Finally, it must be mentioned that in precluding the aggrieved party from a hearing, we are following a particularly disfavored course. The importance in our jurisprudence of the opportunity for a hearing need not be reviewed, but at the very least it teaches that where persons with otherwise justiciable claims cannot obtain a hearing under the law, the law is subject to close scrutiny to discover the circumstances compelling this result. There is precious little in the Garmon doctrine that justifies its existence as to § 7 activities under this test. Certainly neither the evidence of congressional intent nor the presumed but overdrawn interest in uniformity is adequate to justify denial of a hearing. Most cases concerning the hearing requirement are those where some adverse consequence is visited upon the individual unless he can explain his side of the story, Bell v. Burson, 402 U. S. 535 (1971), or where there is continuing conflict and dissatisfaction with no tribunal available to fashion relief. Cf. Boddie v. Connecticut, 401 U. S. 371 (1971). The problems seem similar to those facing us here. In a § 7 case, the employer is faced with, for example, picketing that turns away customers and suppliers and inflicts progressive economic MOTOR COACH EMPLOYEES v. LOCKRIDGE 331 274 White, J., dissenting injury on the employer. For a small businessman with no forum available for relief, the effect is similar to a wage earner who finds that claims of another have cut his take-home pay in half. Cf. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). The majority’s treatment of this important issue is deficient. It says only that treating judicial power to deal with arguably protected activity different from the power to deal with prohibited activity would be ‘ ‘unsatisfactory,” since “[b]oth areas equally involve conduct whose legality is governed by federal law, the application of which Congress committed to the Board, not courts.” Ante, at 290. I have no quarrel with the first point—by definition federal law will determine if federal law protects the conduct from state proscription; but I hardly see how that alone pre-empts state courts. See Dowd Box, Lucas Flour, Smith v. Evening News, Teamsters Union v. Morton, 377 U. S. 252 (1964). As to the second point, the fact is that Congress has not committed the arguably protected area exclusively to the Board. It has provided no mechanism for § 7 cases to get before the Board except where conduct threatens § 7 rights; nor has its functionary, the Board, opened a path to its door for those who seek to ascertain whether conduct threatening them is truly protected by federal law and hence unassailable under local law. Congress found the noman’s land created by Guss unacceptable precisely because there was no way to have rights determined. In terms of congressional intention I find it unsupportable to hold that one threatened by conduct illegal under state law may not proceed against it because it is arguably protected by federal law when he has absolutely no lawful method for determining whether that is actually, as well as arguably, the case. Particularly is this true where the dispute is between a union and its members and the latter are asserting claims under state law based 332 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. on the union constitution. I would permit the state court to entertain the action and if the union defends on the ground that its conduct is protected by federal law, to pass on that claim at the outset of the proceeding. If the federal law immunizes the challenged union action, the case is terminated; but if not, the case is adjudicated under state law. Mr. Justice Blackmun also dissents for the basic reasons set forth by Mr. Justice Douglas and Mr. Justice White in their respective dissenting opinions. HODGSON v. STEELWORKERS 333 Syllabus HODGSON, SECRETARY OF LABOR v. LOCAL UNION 6799, UNITED STEELWORKERS OF AMERICA, AFI^CIO, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 655. Argued March 23, 1971—Decided June 14, 1971 Failure of labor union member’s election complaint to include an objection to meeting-attendance rule during his pursuit of internal union remedies when the member was aware of the existence of the rule bars the Secretary of Labor from later challenging that rule in an action under § 402 of the Labor-Management Reporting and Disclosure Act, which provides that once a member challenging an election has exhausted his internal union remedies and filed a complaint with the Secretary of Labor, the Secretary “shall investigate such complaint and, if he finds probable cause to believe that a violation . . . has occurred and has not been remedied, he shall . . . bring a civil action against the labor organization.” Pp. 336-341. 426 F. 2d 969, affirmed. Marshall, J., wrote the opinion of the Court, in which Burger, C. J., and Black, Douglas, Harlan, Stewart, and Blackmun, JJ., joined. Brennan, J., post, p. 341, and White, J., post, p. 343, filed dissenting opinions. Deputy Solicitor General Wallace argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Assistant Attorney General Gray, Richard B. Stone, Peter G. Nash, George T. Avery, Beate Bloch, and Cornelius S. Donoghue, Jr. Michael H. Gottesman argued the cause for respondents. With him on the brief were Bernard Kleiman, George H. Cohen, Carl Frankel, and Jerome Smith. 334 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Opinion of the Court by Mr. Justice Marshall, announced by Mr. Justice Stewart. Petitioner, the Secretary of Labor, instituted this action under § 402 (b) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 534, 29 U. S. C. § 482 (b), against Local 6799, United Steelworkers of America, to set aside a general election of officers conducted by the union.1 The lawsuit arose after Nicholas Hantzis, an unsuccessful candidate for president of the local, protested the election to both the local and international union organizations. His protest concerned several matters including the use of union facilities to prepare campaign materials for the incumbent president who was re-elected.1 2 After failing to obtain relief through the internal procedures of either union organization, Hantzis filed a complaint with the Secretary of Labor pursuant to § 402 (a) of the Act, 29 U. S. C. § 482 (a). The complaint repeated the charge that union facilities had been used to promote the candidacy of the incumbent president and raised, for the first time, an additional objection concerning a meeting-attendance requirement imposed as a condition of candidacy for union office.3 At no time during his 1 The United Steelworkers of America, an international union under which Local 6799 is chartered, intervened as a party defendant. 2 Hantzis’ written protest consisted of a letter to the International Union which purported to describe the election’s operation. Since the letter did not make specific allegations, it is difficult precisely to define Hantzis’ objections. However, in addition to his general charge that union machinery had been used to aid incumbents, Hantzis also protested several procedural matters including the methods used to nominate and swear in officers. The Secretary of Labor subsequently concluded that none of these procedural matters constituted a violation of the Act. 3 The attendance rule, which is contained in the constitution of the International Union, provides that a union member, in order to be eligible for election as a local union officer or grievance committee- HODGSON v. STEELWORKERS 335 333 Opinion of the Court internal union protests did Hantzis challenge the attendance requirement. Following an investigation of the complaint, the Secretary concluded that union facilities had been used improperly to aid the re-election of the incumbent president in violation of § 401 (g) of the Act, 29 U. S. C. § 481 (g). The Secretary also concluded that § 401 (e) had been violated because the meeting-attendance requirement had not been uniformly administered and because the requirement itself was not a reasonable qualification on the right of union members to hold office. Respondents were advised of these conclusions and were asked to take voluntary remedial action. When they failed to comply with the request, the Secretary brought this proceeding in the District Court for the Central District of California. The District Court held that § 401 (g) had been violated by the use of union facilities for the benefit of the incumbent president’s campaign and ordered a new election for the office of president.* 4 The District Court also held, however, that the meeting-attendance rule was reasonable and that Local 6799 had not violated § 401 (e) by imposing the rule as a qualification on candidacies for union office. On appeal, the Court of Appeals for the Ninth Circuit affirmed without reaching the question whether the attendance requirement was reasonable. In the court’s view, Hantzis’ failure to challenge the requirement during his pursuit of internal union remedies precluded the Secretary from later raising the issue. The court man, must have attended at least one-half of the regular meetings of his local union for 36 months previous to the election unless union activities or working hours prevented his attendance. It is unclear from Hantzis’ complaint whether he objected to the attendance rule itself or to the way in which the rule was admin-istered during the election. Hantzis himself qualified under the rule. 4 This facet of the District Court’s decision is not challenged here. 336 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. reasoned that since the Act requires that union members protesting the conduct of elections exhaust their internal union remedies before complaining to the Secretary, Congress intended to empower the Secretary to assert only “those violations that are fairly apparent from a member’s protest to the union . . . 426 F. 2d 969, 971. Because the case presents an important issue concerning the scope of the Secretary’s authority under the Act, we granted certiorari, 400 U. S. 940. We conclude that Hantzis’ failure to object to the attendance rule during pursuit of his internal union remedies bars the Secretary from later challenging the rule in a § 402 (b) action. We therefore affirm the decision of the Court of Appeals. Section 402 (b) provides that once a member challenging an election has exhausted his internal union remedies and filed a complaint with the Secretary of Labor, the Secretary “shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization . ...” 5 At 5 “Sec. 402. (a) A member of a labor organization— “(1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or “(2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, “may file a complaint with the Secretary within- one calendar month thereafter alleging the violation of any provision of section 401 (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide. “(b) The Secretary shall investigate such complaint and, if he HODGSON v. STEELWORKERS 337 333 Opinion of the Court the outset, petitioner contends that the language of the section empowers the Secretary to investigate and litigate any and all violations that may have affected the outcome of an election once a union member has exhausted his internal union remedies concerning any violation that occurred during that election. Emphasis is placed on the fact that the Secretary is authorized to act if his investigation uncovers “a violation”—this, it is finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance wtih the provisions of this title and such rules and regulations as the Secretary may prescribe. The court shall have power to take such action as it deems proper to preserve the assets of the labor organization. “(c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds— “(1) that an election has not been held within the time prescribed by section 401, or “(2) that the violation of section 401 may have affected the outcome of an election, “the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization. The Secretary shall promptly certify to the court the names of the persons elected, and the court shall thereupon enter a decree declaring such persons to be the officers of the labor organization. If the proceeding is for the removal of officers pursuant to subsection (h) of section 401, the Secretary shall certify the results of the vote and the court shall enter a decree declaring whether such persons have been removed as officers of the labor organization. “(d) An order directing an election, dismissing a complaint, or designating elected officers of a labor organization shall be appealable in the same manner as the final judgment in a civil action, but an order directing an election shall not be stayed pending appeal.” 338 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. said, means that the Secretary is not limited to seeking redress only in respect of the claims earlier presented by the union member to his union. However, the statutory language is not so devoid of ambiguity that it alone can bear the weight of the Secretary’s expansive view of his authority. While the words “a violation” might mean “any violation whatever revealed by the investigation,” the words are susceptible of other readings. In particular, they can fairly be read to mean, “any of the violations raised by the union member during his internal union election protest.” In Wirtz v. Laborers' Union, 389 U. S. 477 (1968), this Court noted that the range of the Secretary’s authority under § 402 (b) must be determined “by inference since there is lacking an explicit provision regarding the permissible scope of the Secretary’s complaint,” 389 U. S., at 481. We must, therefore, examine the legislative history and statutory policies behind § 402 and the rest of the Act to decide the issue presented by this case. Examination of the relevant legislative materials reveals a clear congressional concern for the need to remedy abuses in union elections without departing needlessly from the longstanding congressional policy against unnecessary governmental interference with internal union affairs, Wirtz v. Glass Bottle Blowers Assn., 389 U. S. 463, 470-471 (1968). The introduction to the Senate report accompanying the Act summarizes the general objectives of Congress: “A strong independent labor movement is a vital part of American institutions. The shocking abuses revealed by recent investigations have been confined to a few unions. The overwhelming majority are honestly and democratically run. In providing remedies for existing evils the Senate should be careful neither to undermine self-government within the labor movement nor to weaken unions in their role HODGSON v. STEELWORKERS 339 333 Opinion of the Court as the bargaining representatives of employees.” S. Rep. No. 187, 86th Cong., 1st Sess., 5 (1959). The requirement of § 402 (a), that a union member first seek redress of alleged election violations within the union before enlisting the aid of the Secretary, was similarly designed to harmonize the need to eliminate election abuses with a desire to avoid unnecessary governmental intervention. The same Senate Report, in reference to Title IV of the Act and to the exhaustion requirement, states: “In filing a complaint the member must show that he has pursued any remedies available to him within the union and any parent body in a timely manner. This rule preserves a maximum amount of independence and self-government by giving every international union the opportunity to correct improper local elections.” Id., at 21. Plainly Congress intended to foster a situation in which the unions themselves could remedy as many election violations as possible without the Government’s ever becoming involved. Achieving this objective would not only preserve and strengthen unions as self-regulating institutions, but also avoid unnecessary expenditure of the limited resources of the Secretary of Labor. Petitioner contends that the congressional concerns underpinning the exhaustion requirement were in fact adequately served in this case, because the election in question was actually protested by a union member within the union, and because the union was later given a chance to remedy specific violations before being taken to court by the Secretary. In this view, it is irrelevant that Hantzis himself did not focus his election challenge on the attendance requirement when seeking internal union remedies. In sum, the Secretary urges that § 402 (b) empowers him to act so long as a union member ob 340 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. jects in any way to an election and so long as the union is given the opportunity to remedy voluntarily any violations that the Secretary determines may have affected the outcome of that election, regardless whether the member objected to the violations during his protest to the union. However, under petitioner’s limited view of congressional objectives, the exhaustion requirement of § 402 (a) is left with virtually no purpose or part to play in the statutory scheme. “Exhaustion” would be accomplished given any sort of protest within the union, no matter how remote the complaint made there from the alleged violation later litigated. The obvious purpose of an exhaustion requirement is not met when the union, during “exhaustion,” is given no notice of the defects to be cured. Indeed, the primary objective of the exhaustion requirement is to preserve the vitality of internal union mechanisms for resolving election disputes—mechanisms to decide complaints brought by members of the union themselves. To accept petitioner’s contention that a union member, who is aware of the facts underlying an alleged violation, need not first protest this violation to his union before complaining to the Secretary would be needlessly to weaken union self-government. Plainly petitioner’s approach slights the interest in protecting union self-regulation and is out of harmony with the congressional purpose reflected in §402 (a). Of course, any interpretation of the exhaustion requirement must reflect the needs of rank and file union members—those people the requirement is designed ultimately to serve. We are not unmindful that union members may use broad or imprecise language in framing their internal union protests and that members will often lack the necessary information to be aware of the existence or scope of many election violations. Union democracy is far too important to permit these deficiencies to fore- HODGSON v. STEELWORKERS 341 333 Brennan, J., dissenting close relief from election violations; and in determining whether the exhaustion requirement of § 402 (a) has been satisfied, courts should impose a heavy burden on the union to show that it could not in any way discern that a member was complaining of the violation in question.6 But when a union member is aware of the facts supporting an alleged election violation, the member must, in some discernible fashion, indicate to his union his dissatisfaction with those facts if he is to meet the exhaustion requirement. In this case, it is clear that the protesting member knew of the existence of the meeting-attendance provision and that his election protests to the local and international unions concerned matters wholly unrelated to the rule. We therefore hold that internal union remedies were not properly exhausted and that the Secretary was barred from litigating the claim. Given this holding, we do not reach the question whether the meeting-attendance rule itself is reasonable. The judgment is Affirmed. Mr. Justice Brennan, dissenting. I dissent. The Court acknowledges that 29 U. S. C. § 482(b), in permitting the Secretary to bring a civil action against the union if his investigation discloses “a violation” of § 481, might well mean “any violation whatever revealed by the investigation.” Ante, at 338. Nonetheless, it concludes that “a violation” is limited to “any of the violations raised by the union member during his internal union election protest,” ibid., because the broader interpretation would disregard the congressional 6 For much the same reasons, members should not be held to procedural niceties while seeking redress within their union, and exhaustion is not required when internal union remedies are unnecessarily complex or otherwise operate to confuse or inhibit union protestors. 342 OCTOBER TERM, 1970 Brennan, J., dissenting 403 U. S. purpose in imposing the exhaustion requirement. It is in giving controlling significance to the exhaustion requirement rather than to the clear and primary policy judgment enacted by Congress that the Court, in my view, falls into error. Wirtz v. Glass Bottle Blowers Assn., 389 U. S. 463 (1968), and Wirtz v. Laborers’ Union, 389 U. S. 477 (1968), comprehensively analyzed the policy Congress meant to further in enacting the Secretary’s enforcement powers under 29 U. S. C. § 482. We said that “Title IV’s special function in furthering the overall goals of the LMRDA is to insure ‘free and democratic’ elections,” 389 U. S., at 470, an interest “vital” not alone to union members but also to the general public. 389 U. S., at 475, 483. While we recognized that Congress desired to further this basic policy with minimal interference with a union’s management of its own affairs, we made clear that where governmental intrusion was necessary to realize the vital public policy favoring free and democratic elections, “it would be anomalous to limit the reach of the Secretary’s cause of action by the specifics of the union member’s complaint.” 389 U. S., at 483. We accordingly held that “it is incorrect to read [the exhaustion provision] ... as somehow conditioning [the Secretary’s] right to relief once that intervention has been properly invoked.” 389 U. S., at 473. That holding fits precisely the situation before us. Intervention was properly invoked when the dissident union member pursued his complaint through the union’s internal procedures. When the Secretary’s subsequent investigation uncovered another Title IV violation, surely it was “a violation” that Congress meant should also be corrected. Indeed, 29 U. S. C. § 482 (b) provides that if the Secretary’s investigation leads him to conclude that there is “probable cause to believe that a violation of this subchapter has occurred” the Secretary should seek in a HODGSON v. STEELWORKERS 343 333 White, J., dissenting civil action an order to set the election aside and “to direct the conduct of an election . . . in accordance with the provisions of this subchapter.” (Emphasis added.) The new election must, under § 482 (c), be conducted “so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization.” (Emphasis added.) These provisions make inescapable the conclusion that Congress authorized the Secretary to ground an action for a new election not only on violations processed by the union member but also on other violations uncovered in his investigation. The Court’s contrary construction ignores “the fact that Congress, although committed to minimal intervention, was obviously equally committed to making that intervention, once warranted, effective in carrying out the basic aim of Title IV.” 389 U. S., at 473. Mr. Justice White, dissenting. If, as in this case, a new election is ordered because a candidate used union facilities when he should not have, the Act directs a new election “under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization.” 29 U. S. C. § 482 (c). I take it, then, that the Secretary is under no obligation, indeed forbidden, to follow a provision of the bylaws or constitution that is unlawful. If, in proceedings that order a new election, the Secretary discovers in the bylaws or constitution a provision regulating elections that he deems unlawful—such as the meeting-attendance rule—but the union insists that it is entirely lawful, does the Secretary simply ignore the provision in holding the election, may he or the union secure a judicial ruling on it, or is court action foreclosed and the Secretary required to follow the provision simply because a member in challenging 344 OCTOBER TERM, 1970 White, J., dissenting 403 U. S. the election failed to attack the meeting-attendance rule, probably because it did not affect him? I agree that if Hantzis’ claim of using union facilities had been rejected, a new election could not have been ordered even though the Secretary turned up the meetingattendance rule in his investigation and discovered that the ballot boxes had also been stuffed. But if the Secretary finds an invalid bylaw that purports to govern a new election that has been validly ordered on a claim that has been exhausted, as in this case, the Secretary appears to have express grounds in the Act, independent of the complaint-exhaustion requirements, to insist that the new election be conducted in accordance with the law and to insist that a court adjudicate the matter if the union stands by its bylaw provision. COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 345 Opinion of the Court COMMISSIONER OF INTERNAL REVENUE v. LINCOLN SAVINGS & LOAN ASSN. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 544. Argued February 23, 1971— Decided June 14, 1971 Payment by a state-chartered savings and loan association of the “additional premium” required by § 404 (d) of the National Housing Act to be paid to the Federal Savings and Loan Insurance Corp, is not deductible for income tax purposes as an ordinary and necessary business expense under § 162 (a) of the Internal Revenue Code. Pp. 352-359. 422 F. 2d 90, reversed. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, Brennan, Stewart, White, and Marshall, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 359. Matthew J. Zinn argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Assistant Attorney General Walters, Thomas L. Stapleton, and David English Carmack. Adam Y. Bennion argued the cause for respondent. With him on the brief were A. Calder Mackay and Victor L. Walch. Mr. Justice Blackmun delivered the opinion of the Court. This case presents the question whether the “additional premium” paid in 1963 by a state-chartered savings and loan association to the Federal Savings and Loan Insurance Corporation under the compulsion of § 404 (d) of the National Housing Act, as amended, 12 U. S. C. 346 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. § 1727 (d),1 is deductible by the association, for income tax purposes, as an ordinary and necessary business expense under § 162 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 162 (a). The Commissioner of Internal Revenue determined a deficiency of $461,454.38 in the 1963 cash basis federal income tax of Lincoln Savings and Loan Association. Nearly all the deficiency was attributable to the disallowance of a deduction claimed for Lincoln’s payment of $882,636.86 made pursuant to § 404 (d). Lincoln sought redetermination in the Tax Court. Judge Raum, in a decision reviewed by the court without dissent, upheld the deficiency. 51 T. C. 82 (1968). On appeal the Ninth Circuit reversed, one judge dissenting. 422 F. 2d 90 (1970).1 2 Because of the importance of the issue for 1 Section 404 (d), as amended by the Act of Sept. 8, 1961, §6, 75 Stat. 483, read: “(d) Each insured institution, except as otherwise provided in this section, shall annually pay to the Corporation, at such time and in such manner as the Corporation shall by regulations or otherwise prescribe, an additional premium in the nature of a prepayment with respect to future premiums of such institution under subsection (b) equal to 2 per centum of the net increase in all accounts of its insured members during the next preceding calendar year, less an amount equal to any requirement, as of the end of such calendar year, for the purchase of stock of the Federal Home Loan Bank of which such institution is a member, calculated in accordance with the provisions of subsection (c) of section 6 of the Federal Home Loan Bank Act and without regard to any net increase during such calendar year in its holdings of such stock, and such prepayments shall be credited to the Secondary Reserve . . . .” The foregoing is the form of the statute in effect during 1963. Subsection (d) was further amended by the Act of Sept. 21, 1968, § 6 (a), 82 Stat. 858, and by the Act of Dec. 24, 1969, § 416 (c)(1), 83 Stat, 401, in ways of no significance here. 2 Accord, as to federal savings and loan associations: Washington Fed. S. & L. Assn. v. United States, 304 F. Supp. 1072 (SD Fla. 1969), appeal pending in the United States Court of Appeals for the Fifth Circuit; First Fed. S. & L. Assn. v. United States, 288 F. Supp. 477 (WD Mo. 1968). COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 347 345 Opinion of the Court the savings and loan industry and for the Government, we granted certiorari. 400 U. S. 901 (1970). I The pertinent facts are not in dispute. Lincoln is a California savings and loan association organized in 1925 and is licensed under state law. It is subject to Division 2 of the California Financial Code, § 5000 et seq., and is also subject to the regulations of the State’s Savings and Loan Commissioner. California Administrative Code, Tit. 10, c. 2. In 1936 Lincoln applied for membership in the Federal Home Loan Bank of San Francisco (then of Los Angeles). That application was granted and Lincoln has remained a member of the Bank since that time. The San Francisco Bank is one of 12 regional ones established and supervised by the Federal Home Loan Bank Board under the Federal Home Loan Bank Act of 1932, 47 Stat. 725, as amended, 12 U. S. C. §§ 1421-1449. These banks provide liquidity and funds for mortgage lending by making advances to member institutions as needed to meet unusual or heavy withdrawal and credit demands. Each member must purchase capital stock in its bank in an amount equal to 1% of its outstanding “aggregate unpaid loan principal” and maintain that percentage. 12 U. S. C. § 1426 (c). In June 1938 Lincoln became, and still is, an institution insured by the Federal Savings and Loan Insurance Corporation (FSLIC), a corporation created by § 402 of the National Housing Act, 48 Stat. 1256, 12 U. S. C. § 1725, and under the direction of the Federal Home Loan Bank Board. By statute FSLIC has the duty to insure the accounts of all federal savings and loan associations; it also may insure the accounts of qualified state-chartered associations such as Lincoln. Section 403 (a), 12 U. S C § 1726 (a). 348 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. Each institution so insured was originally required, by § 404 (a) of the Act, 48 Stat. 1258, to pay FSLIC an annual insurance premium measured by the total amount of its accounts plus creditor obligations.3 The statute provided that these premiums were to continue annually until FSLIC’s reserve for losses amounted to 5% of the insured accounts plus creditor obligations of all its insured institutions, and at such intervals thereafter as were necessary to maintain the reserve at that level. This pattern was changed, however, effective January 1, 1962, by the Act of September 8, 1961, 75 Stat. 482. That Act, by its § 3, amended § 404 (a), 12 U. S. C. § 1727 (a), to its present form.4 Section 404 (a) now requires FSLIC to establish two reserves, namely, a Primary Reserve “which shall be the general reserve,” and a Secondary Reserve. The requirement for the annual premium of Via of 1% is continued, but the level of the general reserve was lowered from 5% to 2% of the total of accounts plus creditor obligations. Sections 404 (b)(1) and 404 (b)(2), 12 U. S. C. §§ 1727 (b)(1) and 1727 (b)(2). The 1961 Act, moreover, added subsection (d) to § 404. 12 U. S. C. § 1727 (d). This required that the insured institution pay FSLIC, with respect to any calendar year, an “additional premium in the nature of a prepayment with respect to future premiums of such institution under subsection (b) . . . .” This “additional premium” was, and 3 For more than a decade before 1963 the annual premium was at the rate of M2 of 1% of that total, 64 Stat. 259; prior thereto the premium had been, successively, ^4 and % of 1%. 48 Stat. 1258; 49 Stat. 298. 4 Section 404. “(a) The Corporation shall establish a Primary Reserve which shall be the general reserve of the Corporation and a Secondary Reserve to which shall be credited the amounts of the prepayments made by insured institutions pursuant to subsection (d) and the credits made pursuant to the first sentence of subsection (e).” COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 349 345 Opinion of the Court still is, 2% of the net increase in the total of the institution’s insured accounts, less any amount the institution is required, by 12 U. S. C. § 1426 (c), as of the end of that year, to expend in purchasing stock in the Federal Home Loan Bank.5 The additional premium is to be credited to the Secondary Reserve. Section 404 (a), 12 U. S. C. § 1727 (a). As noted, FSLIC’s statutorily prescribed Primary Reserve is its general reserve. It is credited annually with the Corporation’s net income; this net thus represents retained earnings. The § 404 (b)(1) premium payments, that is, the %2 of 1 %> required of each insured institution, constitute a major item in FSLIC’s gross income. To the extent these premium payments exceed the corporation’s expenses and insurance losses for the year, they flow as part of FSLIC’s net to the Primary Reserve. The insured institutions have no property interest in the funds constituting the Primary Reserve. The Secondary Reserve subsists separately and possesses different characteristics. It, of course, receives the 2% “additional premium,” to the extent such is payable, required by § 404 (d) from each insured institution. FSLIC must also credit the Secondary Reserve annually with a “return” on the Secondary Reserve’s “outstanding balances ... at a rate equal to the average annual rate of return to the Corporation during the year ... on the investments held by the Corporation in obligations of, 5 The 1961 Act, by its § 2, repealed § 6 (1) of the Federal Home Loan Bank Act, 12 U. S. C. § 1426 (1), which had the effect of reducing from 2% to 1% the stock an insured institution is required to hold in relation to its outstanding unpaid loan principal. (The 2% requirement had been provided by the Act of June 27, 1950, § 2, 64 Stat. 257.) It was contemplated that for most institutions this reduction would approximately offset the additional payment to the Secondary Reserve required under §404 (d). H. R. Rep. No. 823, 87th Cong., 1st Sess., 2 (1961); S. Rep. No. 778, 87th Cong., 1st Sess., 1-2 (1961). 350 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. or guaranteed as to principal and interest by, the United States.” Sections 404 (a) and 404 (e), 12 U. S. C. §§ 1727 (a) and 1727 (e). In contrast with the Primary Reserve, the Secondary Reserve is “available . . . only for losses of the Corporation” and then “only to such extent as other accounts of the Corporation which are available therefor are insufficient for such losses.” Section 404 (e), 12 U. S. C. § 1727 (e). Each insured institution has a pro rata share in the Secondary Reserve. Section 404 (e) states that this is not assignable or transferable except as FSLIC, by regulation or otherwise, provides “in cases of merger or consolidation, transfer of bulk assets . . . and similar transactions . . . .” An insured institution may obtain a cash refund of its pro rata share if its status as an insured is terminated, § 407, 12 U. S. C. § 1730, or if a receiver or other legal custodian is appointed for purposes of liquidation, or if the Corporation determines that the institution has gone into liquidation. Section 404 (f), 12 U. S. C. § 1727 (f). Following any December 31 on which the aggregate of the Primary Reserve and the Secondary Reserve equals or exceeds 2% of the total of all insured accounts plus creditor obligations of all the insured institutions (and the Primary Reserve alone does not equal or exceed such 2%), the additional premiums required by § 404 (d) are suspended. Section 404 (g), 12 U. S. C. § 1727 (g).6 When this takes place, the pro rata share of each insured institution in the Secondary Reserve is used, to the extent available, to discharge the institution’s obligation to pay its regular, or basic, premium required for that year under §404 (b)(1). Thereafter, if the aggregate of the two 6The Act of Dec. 23, 1969, Pub. L. 91-151, §6 (a), 83 Stat. 375, changed, effective after 1969, the applicable reserve and premium measures to the designated percentages of only “accounts” rather than accounts plus “creditor obligations.” COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 351 345 Opinion of the Court reserves decreases to less than 1%%, the obligation to pay the additional premium under § 404 (d) resumes and the pro rata share in the Secondary Reserve is no longer used to pay the §404 (b)(1) regular premium. Whenever, following any December 31, the Primary Reserve alone equals or exceeds such 2%, the Corporation shall pay in cash to each insured institution its pro rata share of the Secondary Reserve and shall not thereafter accept further § 404 (d) prepayments.7 FSLIC maintains a separate account for each insured institution’s share of the Secondary Reserve. It submits to the institution annually a statement disclosing that share and the interest credited to it.8 Under regulations issued by the California Savings and Loan Commissioner and by the Federal Home Loan Bank Board, Lincoln reports its interest in FSLIC’s Secondary Reserve as an asset on its balance sheet and treats the interest earned on its pro rata share of the Secondary Reserve as income.9 7 In 1961 FSLIC projected that the aggregate of the Primary and Secondary Reserves would equal or exceed 2% of all accounts and creditor obligations of all insured institutions by 1970; that no payments to the Secondary Reserve would be required for 1971-1975 and 1980-1995; that the Primary Reserve alone would reach the 2% level by 1995; and that the Secondary Reserve would be consumed by 1995 in discharging the insured institutions’ premium obligations under §404 (b)(1). As a consequence of the 1969 amendments effected by Pub. L. 91-151, eliminating creditor obligations in measuring the adequacy of the reserves, the aggregate of FSLIC’s Primary and Secondary Reserves reached the 2% suspension level in 1969 rather than 1970. Beginning in 1970 the Secondary Reserve is being used to fulfill the institutions’ premium obligations under § 404 (b)(1). 8 As of December 31, 1963, Lincoln’s share amounted to $1,034,-689.86. As of December 31, 1967, it was $4,922,115.46. This had been accumulated since the § 404 (d) and (e) payments and credits began as required by the 1961 Act. 9 The Internal Revenue Service has ruled that, for a cash basis taxpayer, this interest is not taxable in the year earned, but only 352 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. FSLIC annually sends Lincoln an “Insurance Premium Notice” for the basic premium due under §404 (b)(1). It also sends Lincoln annually a “Notice of Insurance Premium Prepayment” for the amount, if any, due under § 404 (d). For 1963 the former was $135,760.52 and the latter was $882,636.86. Each was paid by Lincoln. On its 1963 federal income tax return Lincoln deducted both its § 404 (b)(1) payment and its § 404 (d) payment as ordinary and necessary business expenses under § 162 (a) of the Code. The Commissioner allowed the former, but disallowed the latter. The Tax Court held that the § 404 (d) payment was a nondeductible capital expenditure and was not an ordinary and necessary business expense, and that the payment was deductible only when used from the Secondary Reserve to pay § 404 (b)(1) premiums or to meet actual losses of FSLIC. As noted above, the Ninth Circuit reversed by a divided panel. II To qualify as an allowable deduction under § 162 (a) of the 1954 Code, an item must (1) be “paid or incurred during the taxable year,” (2) be for “carrying on any trade or business,” (3) be an “expense,” (4) be a “necessary” expense, and (5) be an “ordinary” expense. This Court has considered these several requirements, or one or more of them, in a number of cases. See, for example, Welch v. Helvering, 290 U. S. Ill (1933); Helvering v. Winmill, 305 U. S. 79 (1938); Deputy v. du Pont, 308 U. S. 488 (1940); Interstate Transit Lines v. Commissioner, 319 U. S. 590 (1943); Commissioner v. Heininger, 320 U. S. 467 (1943); Commissioner v. Tellier, 383 U. S. when it is utilized from the Secondary Reserve to pay the institution’s §404 (b)(1) premium or when it is otherwise made available to the institution. Rev. Rui. 66-49, 1966-1 Cum. Bull. 36, 38. COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 353 345 Opinion of the Court 687 (1966); Woodward v. Commissioner, 397 U. S. 572 (1970); United States v. Hilton Hotels Corp., 397 U. S. 580 (1970). In Welch Mr. Justice Cardozo emphasized the difference between the “ordinary” and the “necessary” and the need for satisfying both in order to achieve the deduction. It is in that case where his well-known, but elusive, suggestion for the answer appears: “The standard set up by the statute is not a rule of law; it is rather a way of life. Life in all its fullness must supply the answer to the riddle.” 290 U. S., at 115. In du Pont Mr. Justice Douglas stressed, 308 U. S., at 493, 495-496, the accepted rule of the “popular or received import” of a statute’s words, and further emphasized that “[o]rdinary has the connotation of normal, usual, or customary,” and that each case “turns on its special facts.” In Tellier Mr. Justice Stewart also emphasized the double requirement of “ordinary” and “necessary” and said: “Our decisions have consistently construed the term ‘necessary’ as imposing only the minimal requirement that the expense be ‘appropriate and helpful’ for ‘the development of the [taxpayer’s] business’ .... The principal function of the term ‘ordinary’ in § 162 (a) is to clarify the distinction, often difficult, between those expenses that are currently deductible and those that are in the nature of capital expenditures, which, if deductible at all, must be amortized over the useful life of the asset.” 383 U. S., at 689-690. So much for generalities. Here clearly, as to its § 404 (d) “additional premium” payment in 1963, Lincoln satisfied three of the five listed requirements. The pay 354 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. ment was made during the taxable year. It was made in carrying on a trade or business. And it was a “necessary” payment, for it was compelled by the provisions of the National Housing Act. The Government so concedes. The focus, therefore, and our only concern here, is whether the payment was an expense and an ordinary one within the meaning of § 162 (a) of the Code. Lincoln’s argument essentially is that its § 404 (d) payment was really no different from its §404 (b)(1) payment for both were premiums for insurance of its depositors’ accounts and creditor obligations; that all similarly situated insured savings and loan associations (there were 4,419 on December 31, 1963) paid the § 404 (d) premium; and that the possibility of a future benefit from the expenditure does not serve to make it capital in nature as distinguished from an expense. We feel that the very recital of the facts and of the structure and operation of FSLIC’s reserves, in Part I of this opinion, itself provides an answer adverse to Lincoln’s argument. It is not enough, in order that an expenditure qualify as an income tax deduction, that it merely be one paid by all similarly insured associations, or that it serves to fortify FSLIC’s insurance purpose and operation. Further, the presence of an ensuing benefit that may have some future aspect is not controlling; many expenses concededly deductible have prospective effect beyond the taxable year. What is important and controlling, we feel, is that the § 404 (d) payment serves to create or enhance for Lincoln what is essentially a separate and distinct additional asset and that, as an inevitable consequence, the payment is capital in nature and not an expense, let alone an ordinary expense, deductible under § 162 (a) in the absence of other factors not established here. We note the following: COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 355 345 Opinion of the Court A. The § 404 (d) payment to FSLIC, when made, is subject to positive and rigid continuing controls. The payment must flow into the Secondary Reserve. That reserve is primarily available only for stated and circumscribed purposes, namely, the payment of losses and then only to the extent all other assets of FSLIC are insufficient to cover those losses. The Secondary Reserve thus has complete seniority with respect to demands upon FSLIC. It is the asset last called upon. B. The insured institution has a distinct and recognized property interest in the Secondary Reserve. This is revealed by: (1) The recognition, in § 404 (e), of transferability of the institution’s pro rata share therein. This transferability is limited and restricted, to be sure, but it exists for approved situations of merger, consolidation, and the like. (2) The prospective refund, and in cash at that, of the institution’s pro rata share upon termination of its insured status, or upon receivership or liquidation, or when the Primary Reserve alone reaches the suspension level. (3) The use of the institution’s pro rata share to pay its basic premium under § 404 (b)(1) when the suspension level is reached by the aggregate of the Primary and Secondary Reserves. (4) FSLIC’s maintenance of a separate account for each insured institution’s share in the Secondary Reserve. (5) The statutorily required annual credit from FSLIC’s earnings to the institution’s share of the Secondary Reserve. The share thus is an income-producing entity and the income inures to the benefit of the insured institution. C. Although compulsory accounting rules do not control tax consequences, Old Colony R. Co. v. Commissioner, 284 U. S. 552, 562 (1932), there is significance in the fact that all concerned here have recognized the presence and the significance of this property interest 356 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. in the Secondary Reserve. FSLIC submits annual statements to its insured institutions showing payments and credits to their respective shares. Lincoln, albeit by federal and state requirements, shows that interest as an asset on its balance sheet and the credit as income. And Lincoln’s parent corporation, First Lincoln Financial Corporation, although not subject to such regulation, has done the same in its financial statements. D. The nature of the adjustments effected by the 1961 Act is of some import. Due primarily to the rapid growth of insured institutions in the years preceding the passage of that Act, the ratio of FSLIC’s reserves to potential liability had declined. S. Rep. No. 778, 87th Cong., 1st Sess., 2, 12; Hearing on H. R. 7108 and H. R. 7109 before Subcommittee No. 1 of the House Committee on Banking and Currency, 87th Cong., 1st Sess., 10. By the Act Congress reduced the requirement for Federal Home Loan Bank stock and at the same time channeled new funds to FSLIC’s Secondary Reserve. The § 404 (d) payment and the reduction in the FHLB stock purchase requirement were effectuated together. Certainly the FHLB stock is an asset and its acquisition is capital in nature. The complementary § 404 (d) payment is directed to a fund. Each is a device designed to achieve a particular and common result, namely, the providing of protection to the insured institution and to its depositors by way, in the one case, of liquidity and availability of loan funds and, in the other, by way of segregated amounts available to offset possible losses. Each is more permanent than temporary. Each partakes more of the character of an asset than of an expense. And the two are made complementary by the very provisions of § 404 (d). We do not regard as contrarily persuasive, or as imposing an expense characteristic on the § 404 (d) pay- COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 357 345 Opinion of the Court ments, six features emphasized by Lincoln or by the Court of Appeals: A. The possibility that Lincoln’s share of the Secondary Reserve would be consumed by FSLIC’s losses and thus would never be refunded to Lincoln. The Tax Court pointed out, 51 T. C., at 97, that this hazard exists with any routine investment in a bank or an insurance company and yet its presence does not make that investment an expense rather than a capital undertaking. B. The general unlikelihood, as a practical matter, of Lincoln’s recovery of its pro rata share of the Secondary Reserve. It is suggested that liquidation will not take place because in this day corporate activity is assumed to be a continuing process and not limited in duration. It is further pointed out that termination of FSLIC insurance is a business impossibility for it would result in mass withdrawal of depositors’ accounts and in institutional suicide. It may well be true that liquidation is unlikely and that termination of insurance would be an undesirable business decision. The same may usually be said, however, of a manufacturing corporation’s investment in plant and equipment or in patents or in many other assets basic to its business and function. C. The claimed identity of purpose of the § 404 (b)(1) and § 404 (d) payments, namely, the providing of insurance for depositors’ accounts. The former, however, is only annual in phase and operation. It provides insurance for the year. When the year passes, the insurance ceases. The latter, however, provides a fund available for losses not only in the current year, but in the future. It is a fund capable under certain circumstances of finding its way back to the coffers of the insured institutions. The ultimate purpose of the two payments may have much in common, but the route and the life of each differ from those of the other. 358 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. D. The compulsory character of the payment imposed both by the governing statute and the economic facts of life. Lincoln concedes, however, “Compulsion, whether legal or economic, should have no bearing upon the question whether a payment is an expense or a capital expenditure.”10 E. The annual accounting concept of the income tax. This factor is relevant when the year of deduction is in issue. It has less consequence in the determination of whether an item is or is not an ordinary expense. As to this, the mere maturing of liability is not enough. F. The suggestion that the § 404 (d) payment is not included in the list of nondeductible capital expenditures specified by § 263 of the 1954 Code. It is clear from the very language of §§ 162 (a) and 263 that the two sections together are not all inclusive, and that § 263 does not provide a complete list of nondeductible expenditures. Iowa Southern Utilities Co. v. Commissioner, 333 F. 2d 382, 385 (CA8 1964), cert, denied, 379 U. S. 946; General Bancshares Corp. v. Commissioner, 326 F. 2d 712, 716 (CA8 1964), cert, denied, 379 U. S. 832. See Helvering v. Winmill, 305 U. S. 79 (1938); Woodward v. Commissioner, 397 U. S. 572 (1970); United States v. Hilton Hotels Corp., 397 U. S. 580 (1970). Ill Lincoln’s pro rata share of the Secondary Reserve, of course, is not without its tax aspects. If its share is used to pay losses or if, when the suspension level is reached, it is devoted to the payment of Lincoln’s §404 (b)(1) premium, a deduction at that time for the amount so used would appear to be in order. Indeed, the Internal Revenue Service has so ruled. Rev. Rui. 66-49, 1966-1 Cum. Bull. 36, 37. Cf. Treas. Reg. on Income Tax § 1.162-13. 10 Brief in Opposition 17. COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 359 345 Douglas, J., dissenting We emphasize that just as compulsory accounting is not controlling taxwise, Old Colony R. Co. v. Commissioner, supra, so the statutory labels of “prepayment” and “additional premium” contained in § 404 (d) are not controlling. Burnett v. Commissioner, 356 F. 2d 755, 758 (CA5 1966), cert, denied, 385 U. S. 832. We also emphasize that the fact that a payment is imposed compulsorily upon a taxpayer does not in and of itself make that payment an ordinary and necessary expense within the meaning of § 162 (a) of the 1954 Code. We therefore conclude that Lincoln’s § 404 (d) payment made in 1963 is not deductible under § 162 (a). See Wichita State Bank de Trust Co. v. Commissioner, 69 F. 2d 595, 596 (CA5 1934), cert, denied, 293 U. S. 562. The judgment of the Court of Appeals is reversed. It is so ordered. Mr. Justice Douglas, dissenting. Respondent is a state-chartered savings and loan institution, whose deposits are insured by the Federal Savings and Loan Insurance Corporation (FSLIC). To obtain this coverage, respondent must pay two premiums. Under § 404 (b) of the National Housing Act, it pays an annual premium of Via of one percent of the total amount of its savings accounts and creditor obligations. Pursuant to §404 (d), it must also pay an additional premium equal to two percent of any net increase in the total amount of its insured accounts.1 The § 404 (b) premium is considered gross income of FSLIC, approximately 95% of which is transferred to its Primary Reserve to cover losses. These premiums must be paid by insured institutions until the Primary Reserve equals two percent of 1 This amount may be reduced by an amount equal to any requirement for the purchase of stock in the Federal Home Loan Bank of which the insured is a member. 360 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. the total insured savings accounts and creditor obligations of all insured institutions. Thereafter, insured institutions need pay no premiums unless and until the Primary Reserve drops below two percent. The § 404 (d) premium is not considered gross income of FSLIC but is transferred to a Secondary Reserve, to be used to cover losses only if other accounts prove insufficient, a possibility considered extremely remote. A separate accounting is kept for each insured institution, showing the § 404 (d) premiums paid. Under § 404 (g), at any time that the aggregate of the Primary and Secondary Reserves reaches 2% of all insured accounts and creditor obligations, no § 404 (d) payments need be made, and funds from the Secondary Reserve may be used to make § 404 (b) premium payments, until the aggregate falls below 1%%. When the Primary Reserve reaches 2%, FSLIC is to pay each insured institution its pro rata share of the Secondary Reserve in cash. By FSLIC’s projections, no § 404 (d) premium payments will be required in the years 1971 to 1975 and after 1979. No § 404 (b) premiums will be required after 1995, as the Primary Reserve will reach 2%. The respondent argues that there will be no payments of pro rata shares at that time, as the calculations of FSLIC show that the Secondary Fund will be exhausted prior to 1995.2 On its federal tax return for 1963 respondent deducted both its § 404 (b) and § 404 (d) premium payments as ordinary and necessary business expenses. The Commissioner of Internal Revenue allowed the deduction of § 404 (b) premiums, but disallowed the latter, characterizing these payments as nondeductible capital investments in 2 The Solicitor General argues that it is possible that some insured institutions might receive refunds from the Secondary Reserve, if their growth fits a certain pattern. This however only raises the possibility of such a return, without showing that such a possibility is more than remote. COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 361 345 Douglas, J., dissenting FSLIC, to be deducted only when used to pay § 404 (b) premiums or when used to meet actual losses of FSLIC. The Tax Court affirmed this ruling. The Court of Appeals for the Ninth Circuit reversed the Tax Court, finding the § 404 (d) premiums to be a reasonable and necessary business expense, deductible in the year paid. I agree with the Court of Appeals and dissent from the decision here. There is no claim that the § 404 (d) premiums are not necessary. The position of the United States is that these premiums are not “ordinary,” but “in the nature of capital expenditures, which, if deductible at all, must be amortized over the useful life of the asset.” Commissioner v. Tellier, 383 U. S. 687, 689-690 (1966). The Commissioner relies on the principle that a cost which results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year is a capital outlay. From this he argues that the determination of whether respondent’s § 404 (d) premiums are capital expenditures or deductible business expenses depends on whether the payments will provide a benefit in future years. Because the respondent will obtain a benefit in the future from these premiums, in the form of lower § 404 (b) premiums or by a full refund of its pro rata share on termination or liquidation, he argues, the Secondary Reserve is a capital asset. It is not used for losses, and will never be used except in the event of a national catastrophe. These premiums are not recurring, and will likely be paid only in 13 of the 34 years from 1962 to 1995. Accounting principles, the Commissioner claims, demand that these payments be deducted when they are used, either to pay § 404 (b) premiums or to pay losses. “Only in this manner will the costs of FSLIC insurance be matched against the revenues generated because such insurance is maintained.” 362 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. The rule professed by the United States is, of course, sound. The error is in applying it to this case. Respondent has not established an asset for future benefit. It has merely paid the premiums necessary to obtain insurance. It is true that premiums paid in 1963 may result in a reduction in premiums in later years. But labeling this the creation of an asset proves too much, for it invalidates the deduction of § 404 (b) premiums as well. The benefit to be obtained from the payment of § 404 (d) premiums, whether they be capital expenditures or deductible expenses, is not the reduction of future premiums but insurance coverage. The Government readily admits that the present level of § 404 (b) premiums is not needed to cover current foreseeable losses. Indeed, losses have never exceeded investment income. The high premium rate is for the purpose of establishing a Primary Reserve, to cover conceivably serious losses in the future. When the Primary Reserve reaches a level deemed sufficient, no premium payments will be required at all. If “the costs of FSLIC insurance [are to] be matched against the revenues generated because such insurance is maintained,” a major portion of the § 404 (b) premiums should also be capitalized, to be depreciated over some appropriate term. Nor is it controlling that the Secondary Reserve is a capital account insofar as FSLIC is concerned. As the Court of Appeals stated: “We think the emphasis upon the treatment of the receipt by the payee, FSLIC, is mistaken and that in determining whether an expense is an ordinary and necessary expense of doing business, the focus should be on the taxpayer and the taxpayer’s business, not on what the payee does with the money paid. This is not to say that rights retained by the taxpayer are to be ignored.” 422 F. 2d 90, 92. COMMISSIONER v. LINCOLN SAVINGS & LOAN ASSN. 363 345 Douglas, J., dissenting A decision that § 404 (d) premiums are not deductible, while § 404 (b) premiums are, must rest on the only distinction between the two, the rights retained by respondent in the Secondary Reserve. These are evidenced by the keeping of separate “accounts,” the payment of earnings to these accounts, and the possibility of a recovery of a pro rata share of the Reserve. But, as the Court of Appeals noted, respondent is a going concern, and the possibility of a return of its share on liquidation is not a proper consideration. As termination of insurance would surely lead to liquidation, this could not be considered either. The possibility that some part of the Secondary Reserve might be returned to respondent when the Primary Reserve reaches a sufficient level is, at best, remote. This contingent possibility of recovery does not render an otherwise deductible payment nondeductible. Alleghany Corp. v. Commissioner, 28 T. C. 298, 305; Electric Tachometer Corp. v. Commissioner, 37 T. C. 158, 161. The returns paid on a pro rata share of the Secondary Reserve are paid out of earnings, that is, out of funds which would otherwise be transferred to the Primary Reserve. The payment does not increase the aggregate amount of the reserves. The returns paid are not available to the insured institution, and not taxable to it until paid for its benefit, according to the Internal Revenue Service. At that point, the insured institution would declare the income and deduct the amount as an expense. Therefore, absent the remote possibility that the insured institution might receive a pro rata share, it is immaterial whether returns are paid to the Secondary Reserve or only to the Primary Reserve. Also, the revenue ruling that the insured institution does not have even constructive possession of a pro rata share of the Secondary Reserve, for purposes of taxing returns 364 OCTOBER TERM, 1970 Douglas, J., dissenting 403 U. S. on that fund, is inconsistent with the position that the same pro rata share is a capital asset of the institution. On these facts, the Court of Appeals was correct in determining that the § 404 (d) premiums, paid for the purpose of obtaining insurance necessary for the success of respondent’s business, were deductible as an ordinary business expense. GRAHAM v. RICHARDSON 365 Syllabus GRAHAM, COMMISSIONER, DEPARTMENT OF PUBLIC WELFARE OF ARIZONA v. RICHARDSON et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. 609. Argued March 22, 1971—Decided June 14, 1971* State statutes, like the Arizona and Pennsylvania statutes here involved, that deny welfare benefits to resident aliens or to aliens who have not resided in the United States for a specified number of years are violative of the Equal Protection Clause and encroach upon the exclusive federal power over the entrance and residence of aliens; and there is no authorization for Arizona’s 15-year durational residency requirement in § 1402 (b) of the Social Security Act. Pp. 370-383. 313 F. Supp. 34 and 321 F. Supp. 250, affirmed. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Douglas, Brennan, Stewart, White, and Marshall, JJ., joined. Harlan, J., filed a statement joining in the judgment and in Parts III and IV of the Court’s opinion, post, p. 383. Michael S. Flam, Assistant Attorney General of Arizona, argued the cause for appellant in No. 609. With him on the briefs were Gary K. Nelson, Attorney General, and James B. Feeley, Andrew W. Bettwy, Roger M. Horne, and Peter Sownie, Assistant Attorneys General. Joseph P. Work, Assistant Attorney General of Pennsylvania, argued the cause for appellants in No. 727. With him on the brief were Fred Speaker, Attorney General, Barry A. Roth, Assistant Deputy Attorney General, and Edward Friedman. *Together with No. 727, Sailer et al. v. Leger et al., on appeal from the United States District Court for the Eastern District of Pennsylvania. 366 OCTOBER TERM, 1970 Opinion of the Court 403U.S. Anthony B. Ching argued the cause and filed a brief for appellees in No. 609. Jonathan M. Stein argued the cause for appellees in No. 727, pro hac vice. With him on the brief were Harvey N. Schmidt and Jonathan Weiss. Mr. Weiss filed a brief for the Legal Services for the Elderly Poor Project of the Center on Social Welfare Policy and Law as amicus curiae urging affirmance in No. 609. Robert A. Sedler and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance in both cases. Briefs of amici curiae urging affirmance in No. 727 were filed by Edith Lowenstein for Migration and Refugee Services, U. S. Catholic Conference, Inc., et al., and by Jack Wasserman and Esther M. Kaufman for the Association of Immigration and Nationality Lawyers. Mr. Justice Blackmun delivered the opinion of the Court. These are welfare cases. They provide yet another aspect of the widening litigation in this area.1 The issue here is whether the Equal Protection Clause of the Fourteenth Amendment prevents a State from conditioning welfare benefits either (a) upon the beneficiary’s possession of United States citizenship, or (b) if the beneficiary is an alien, upon his having resided in this country for a specified number of years. The facts are not in dispute. I No. 609. This case, from Arizona, concerns the State’s participation in federal categorical assistance programs. These programs originate with the Social Security Act 1 See, for example, King v. Smith, 392 U. S. 309 (1968); Shapiro v. Thompson, 394 U. S. 618 (1969); Goldberg v. Kelly, 397 U. S. 254 (1970); Rosado v. Wyman, 397 U. S. 397 (1970); Dandridge v. Williams, 397 U. S. 471 (1970); Wyman v. James, 400 U. S. 309 (1971). GRAHAM v. RICHARDSON 367 365 Opinion of the Court of 1935, 49 Stat. 620, as amended, 42 U. S. C., c. 7. They are supported in part by federal grants-in-aid and are administered by the States under federal guidelines. Arizona Rev. Stat. Ann., Tit. 46, Art. 2, as amended, provides for assistance to persons permanently and totally disabled (APTD). See 42 U. S. C. §§ 1351-1355. Arizona Rev. Stat. Ann. §46-233 (Supp. 1970-1971), as amended in 1962, reads: “A. No person shall be entitled to general assistance who does not meet and maintain the following requirements: “1. Is a citizen of the United States, or has resided in the United States a total of fifteen years. . . A like eligibility provision conditioned upon citizenship or durational residence appears in § 46-252 (2), providing old-age assistance, and in § 46-272 (4), providing assistance to the needy blind. See 42 U. S. C. §§ 1201-1206, 1381-1385. Appellee Carmen Richardson, at the institution of this suit in July 1969, was 64 years of age. She is a lawfully admitted resident alien. She emigrated from Mexico in 1956 and since then has resided continuously in Arizona. She became permanently and totally disabled. She also met all other requirements for eligibility for APTD benefits except the 15-year residency specified for aliens by § 46-233 (A)(1). She applied for benefits but was denied relief solely because of the residency provision. Mrs. Richardson instituted her class action 2 in the District of Arizona against the Commissioner of the State’s Department of Public Welfare seeking declaratory relief, an injunction against the enforcement of §§46- 2 The suit is brought on behalf of appellee and similarly situated Arizona resident aliens who, but for their inability to meet the Arizona residence requirement, are eligible to receive welfare benefits under state-administered federal categorical assistance programs for the permanently and totally disabled, the aged, and the blind. 368 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. 233 (A)(1), 46-252 (2), and 46-272 (4), and the award of amounts allegedly due. She claimed that Arizona’s alien residency requirements violate the Equal Protection Clause and the constitutional right to travel; that they conflict with the Social Security Act and are thus overborne by the Supremacy Clause; and that the regulation of aliens has been pre-empted by Congress. The three-judge court upheld Mrs. Richardson’s motion for summary judgment on equal protection grounds. Richardson v. Graham, 313 F. Supp. 34 (Ariz. 1970). It did so in reliance on this Court’s opinions in Takahashi v. Fish de Game Comm’n, 334 U. S. 410 (1948), and Shapiro v. Thompson, 394 U. S. 618 (1969). The Commissioner appealed. The judgment was stayed as to all parties plaintiff other than Mrs. Richardson. Probable jurisdiction was noted. 400 U. S. 956 (1970). No. 727. This case, from Pennsylvania, concerns that portion of a general assistance program that is not federally supported. The relevant statute is § 432 (2) of the Pennsylvania Public Welfare Code, Pa. Stat. Ann., Tit. 62, § 432 (2) (1968),3 originally enacted in 1939. It provides that those eligible for assistance shall be (1) needy persons who qualify under the federally supported categorical assistance programs and (2) those other needy persons who are citizens of the United States. Assistance to the latter group is funded wholly by the Commonwealth. 3 “§ 432. Eligibility “Except as hereinafter otherwise provided . . . needy persons of the classes defined in clauses (1) and (2) of this section shall be eligible for assistance: “(1) Persons for whose assistance Federal financial participation is available to the Commonwealth .... “(2) Other persons who are citizens of the United States, or who, during the period January 1, 1938 to December 31, 1939, filed their declaration of intention to become citizens. . . .” GRAHAM v. RICHARDSON 369 365 Opinion of the Court Appellee Elsie Mary Jane Leger is a lawfully admitted resident alien. She was born in Scotland in 1937. She came to this country in 1965 at the age of 28 under contract for domestic service with a family in Havertown. She has resided continuously in Pennsylvania since then and has been a taxpaying resident of the Commonwealth. In 1967 she left her domestic employment to accept more remunerative work in Philadelphia. She entered into a common-law marriage with a United States citizen. In 1969 illness forced both Mrs. Leger and her husband to give up their employment. They applied for public assistance. Each was ineligible under the federal programs. Mr. Leger, however, qualified for aid under the state program. Aid to Mrs. Leger was denied because of her alienage. The monthly grant to Mr. Leger was less than the amount determined by both federal and Pennsylvania authorities as necessary for a minimum standard of living in Philadelphia for a family of two. Mrs. Leger instituted her class action4 in the Eastern District of Pennsylvania against the Executive Director of the Philadelphia County Board of Assistance and the Secretary of the Commonwealth’s Department of Public Welfare. She sought declaratory relief, an injunction against the enforcement of the restriction of §432 (2), and the ordering of back payments wrongfully withheld. She obtained a temporary restraining order preventing the defendants from continuing to deny her assistance. She then began to receive, and still receives, with her husband, a public assistance grant. Appellee Beryl Jervis was added as a party plaintiff to 4 It was stipulated that the class of persons the appellees represent approximates 65 to 70 cases annually. This figure stands in striking contrast to the 585,000 persons in the Commonwealth on categorical assistance and 85,000 on general assistance. Department of Public Welfare Report of Public Assistance, Dec. 31, 1969. 370 OCTOBER TERM, 1970 Opinion of the Court 403 U. S. the Leger action. She was born in Panama in 1912 and is a citizen of that country. In March 1968, at the age of 55, she came to the United States to undertake domestic work under contract in Philadelphia. She has resided continuously in Pennsylvania since then and has been a taxpaying resident of the Commonwealth. After working as a domestic for approximately one year, she obtained other, more remunerative, work in the city. In February 1970 illness forced her to give up her employment. She applied for aid. However, she was ineligible for benefits under the federally assisted programs and she was denied general assistance solely because of her alienage. Her motion for immediate relief through a temporary restraining order was denied. It was stipulated that “the denial of General Assistance to aliens otherwise eligible for such assistance causes undue hardship to them by depriving them of the means to secure the necessities of life, including food, clothing and shelter,” and that “the citizenship bar to the receipt of General Assistance in Pennsylvania discourages continued residence in Pennsylvania of indigent resident aliens and causes such needy persons to remove to other States which will meet their needs.” The three-judge court, one judge dissenting, ruled that § 432 (2) was violative of the Equal Protection Clause and enjoined its further enforcement. Leger v. Sailer, 321 F. Supp. 250 (ED Pa. 1970). The defendants appealed. Probable jurisdiction was noted. 400 U. S. 956. II The appellants argue initially that the States, consistent with the Equal Protection Clause, may favor United States citizens over aliens in the distribution of welfare benefits. It is said that this distinction involves no “invidious discrimination” such as was condemned in GRAHAM v. RICHARDSON 371 365 Opinion of the Court King v. Smith, 392 U. S. 309 (1968), for the State is not discriminating with respect to race or nationality. The Fourteenth Amendment provides, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It has long been settled, and it is not disputed here, that the term “person” in this context encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside. Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886); Truax v. Raich, 239 U. S. 33, 39 (1915); Takahashi v. Fish