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UNITED STATES REPORTS
VOLUME 408
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1971
JUNE 26 THROUGH JUNE 29, 1972
END OF TERM
HENRY PUTZEL, jr.
REPORTER OF DECISIONS
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHING TON : 1973
For sale by the Superintendent of Documents, U.S. Government Printing Office
Waahington, D.C. 20402 • Price $10.80 (Buckram)
Stock Number 2801-00378
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JUSTICES
OF THE
SUPREME OOUR'l'
DURING THE TIME OF THESE REPORTS
WARREN E. BURGER, CHIEF JUSTICE.
WILLIAM 0. DOUGLAS, ASSOCIATE JUSTICE.
WILLIAM J. BRENNAN, JR., ASSOCIATE JUSTICE.
POTTER STEW ART, ASSOCIATE JUSTICE.
BYRON R. WHITE, ASSOCIATE JUSTICE.
THURGOOD MARSHALL, ASSOCIATE JUSTICE:
HARRY A. BLACKMUN, ASSOCIATE JUSTICE.
LEWIS F. POWELL, JR., ASSOCIATE JUSTICE.
WILLIAM H. REHNQUIST, ASSOCIATE JUSTICE.
RETIRED
EARL WARREN, CHIEF JUSTICE.
STANLEY REED, ASSOCIATE JUSTICE.
TOM c. CLARK, ASSOCIATE JUSTICE.
OFFICERS OF THE COURT
RICHARD G. KLEINDIENST, ATTORNEY GENERAL.
ERWIN N. GRISWOLD, SOLICITOR GENERAL.
MICHAEL RODAK, JR., CLERK.
HENRY PUTZEL, jr., REPORTER OF DECISIONS.
FRANK M. HEPLER, MARSHAL.
HENRY CHARLES HALLAM, JR., LIBRARIAN.
III
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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, WARHEN E.
BURGER, Chief Justice.
For the First Circuit, WILLIAM J. BRENNAN, JR.,
Associate Justice.
For the Second Circuit, THURGOOD MARSHALL, Associate
Justice.
For the Third Circuit, WILLIAM J. BRENNAN, JR.,
Associate Justice.
For the Fourth Circuit, WARREN E. BunGER, Chief
Justice.
For the Fifth Circuit, LEWIS F. POWELL, JR., Associate
Justice.
For the Sixth Circuit, POTTER S•rEWART, Associate
Justice.
For the Seventh Circuit, WILLIAM H. REHNQUIST,
Associate .Justice.
For the Eighth Circuit, HARRY A. BLACKMON, Associate
.Justice.
For the Ninth Circuit, WILLIAM 0. DouGLAS, Associate
Justice.
For the Tenth Circuit, BYRON R. WHITE, Associate
Justice.
January 7, 1972.
(For next previous allotment, see 403 U. S., p. Iv.)
IV
TABLE OF OASES REPORTED
~OTE: All undesignated references herein to the United States
Code are to the l!li0 edition.
Cases rl'ported before pagl' 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
Affiliated Ute Citizens of Utah v. United States... . . . . . . . . . 931
Alabama; Beecher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
Alabama; Hubbard v .................................. 934,936
Alabama; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Alabama; Lokos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Alabama; McCants v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Alabama; Swain v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Alexander v. Virginia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Alford v. Eyman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Allen v. Worrall......................................... 926
Alvarez v. Nebraska..................................... 937
Anderson v. Florida............. . ....................... 938
Ansley v. Georgia....................................... 929
Arkansas; Ingram v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Arkwright v. Georgia.................................... 936
Arrington v. :\1aryland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Ash; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Atkinson v. South Carolina..... . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Attorney General v. Mandel... . . . . . . . . . . . . . . . . . . . . . . . . . . . 753
Attorney General of Georgia; Doe v.... . . . . . . . . . . . . . . . . . . . 919
Austin v. Meyer........................................ 919
Bacon v. United States.................................. 915
Baker v. Tollett......................................... 929
Bartholomey v. Maryland................................ 938
Eaten v. District Unemployment Compensation Board...... 932
Beckman v. Walter Kidde & Co.......................... 922
Beecher v. Alabama....................... .. . . .......... 234
Bell v. Taylor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Belliston v. Texaco Im. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Berryhill; Gibson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
V
VI TABLE OF CASES REPORTED
Page
Beto; Huffman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Beto ; Jackson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Beto; Nixon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Beto ; Sellars v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Beto; Wright v. . . .. . . .. . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 934
Billingsley v. New Jersey... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Blankner v. Chicago.................................... 931
Blum v. Pennsylvania................................... 924
Boag v. Boies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Board of Education of New York City; Canty v. . . . . . . . . . . 940
Board of Education, Wellston School District; Crabtree v. . . . 943
Board of Governors of State Colleges; Fooden v. . . . . . . . . . . . 943
Board of Regents of State Colleges v. Roth. . . . . . . . . . . . . . . . . 564
Bogan v. Dasho......................................... 925
Bogdan v. Rodriguez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Boies; Boag v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Bolton; Doe v......................................... 919
Boslow; Clark v........................................ 915
Boykin v. Florida....................................... 940
Branch v. Texas........................................ 238
Branzburg v. Hayes.................................... . 665
Brennan v. Haines................. . .................... 924
Brenneman v. United States.............................. 923
Brewer; Morrissey v..................................... 471
Brewster; United States v................................ 501
Brickhouse v. Slayton................................... 938
Brierley; Phelan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Brotherhood. For tabor union, see name of trade.
Brown v. Clark......................................... 925
Brown v. Florida....................................... 938
Brown v. Oklahoma ............................... 902,909,914
Brown v. United States ................................ 922, 923
Brown v. Virginia...................................... 940
Brumfield v. Henderson.................................. 928
Bryson v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Burnette v. United States................................ 926
Byrne; Russo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Byrum; United States v..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Cadoux v. Planning & Zoning Comm'n of Weston........... 924
Caldwel1; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665
California; Kaplan v.................................... 921
California; Miller v........... . . . . . . . . . . . . . . . . . . . . . . . . . . 919
California; Morningstar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
TABLE OF CASES REPORTED vn
Page
California; Park v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
California Dept. of Human Resources Development v. Crow. . 924
Campopiano v. United States............................ 915
Canaday v. Washington................................. 940
Cancino v. United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Cannon v. Missouri. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Canty v. Board of Education of New York City. . . . . . . . . . . . 940
Capler v. Mississippi.................................... 937
Carey v. Elrod......................................... 901
Carter v. Ohio.......................................... 936
Cataldo; McEnteggart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Cataphote Corp.; DeSoto, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . 929
Caulk v. Nichols. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Central Penn National Bank v. Trustees of Penn Central.... 923
Cerny v. Washington.................................... 939
Chambers v. Speight.................................... 930
Chance v. North Carolina................................ 940
Chas. Pfizer & Co.; Connors v. . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Chicago; Blanker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
Chicago Police Dept. v. Mosley. . . . . . . . . . . . . . . . . . . . . . . . . . . 92
City. See name of city.
Clark v. Boslow........................................ 915
Clark; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Clark; Landman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Combs v. United States.................................. 224
Commissioner; Rafferty v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Commis;;;ioner of Highways of Tenn.; Chambers v.......... 930
Commissioner of Internal Revenue. See Commissioner.
Commonwealth. See name of Commonwealth.
Connecticut; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Connecticut; Delgado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Connors v. Chas. Pfizer & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Cook; Yates v.......................................... 934
Corrections Commissioner. See name of commissioner.
Coulon; Hayes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
County. See name of county.
Crabtree v. Board of Education, Wellston School District. . . 943
Crampton v. Ohio....................................... 941
Craven; Jones v........................................ 931
Crenshaw v. United States............................... 923
Crow; Cal. Dept. of Human Resources Development v. . . . . . 924
Cummings v. Georgia................................ . .. 935
Cunningham v. Warden.................................. 938
VIII TABLE OF CASES REPORTED
Page
Curry v. Texas......................................... 939
Dallas County District Attorney; Roe v. . . . . . . . . . . . . . . . . . 919
Dasho; Bogan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Dasho; Hardin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Dasho; Susquehanna Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
David v. Texas......................................... 937
Davidson v. Francis..................................... 920
Davis v. Connecticut. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Davis v. Texas......................................... 937
Deitz; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Delaware; Seeney v..................................... 939
Dela ware; Steigler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
DeLevay v. Greyhound Corp............................. 932
Delgado v. Connecticut................................. 940
Department of Ale. Bev. Control of Cal.; Poff v. . . . . . . . . . . 924
Depa.rtment of Ale. Bev. Control of Cal.; Westent, Inc. v... 901
Department of Economic Security of Ky.; Wilson v. . . . . . . . 928
DeSoto, Inc. v. Cataphote Corp.......................... 929
DeTore v. United States................................. 928
Dickerson v. Rundle.................................... 928
Director of Intrrnal Revenue. See Commissioner.
Director of penal or correctional institution. See name of
director.
District Attorney of Dallas County; Roe v. . . . . . . . . . . . . . . . 919
Dist riet Judge. Sec U. S. District J udgc.
District Unemployment Compensation Board; Eaten v. . . . . 932
Doe v. Bolton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Doe v. McMillan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Door County; Hutter v............................ . ..... 924
Doss v. North Carolina.................................. 939
Douglas v. Louisiana.................................... 937
Duisen v. l\fissouri. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Duling v. Ohio......................................... 936
Durham v. United States................................ 926
Eaton v. Ohio.......................................... 935
Egan v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Egan; United States v.................................. 41
Elliott v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Elrod; Carey v. . .. . . . . . .. .. . .. .. .. .. . .. . . . . . .. .. . . .. .. . 901
Est0s; Hurst v.......................................... 931
Eubanks v. Ohio........................... . ............ 935
Eva.ns; L0s's Roller Rink v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Evans; Seaman v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
TABLE OF CASES REPORTED rx
Page
Evans v. Swenson...................................... . 929
Evans; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Eyman; Alford v....................................... 939
Eyman; .J anovic v.. . .. . .. . . .. .. . .. . .. .. .. .. . .. . .. . . .. .. 934
Eyman; Kruchten v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Eyman; Sims v.......... . .............................. 934
Farrell v. Schmidt......... . ..................... . ...... 9L5
Fasanaro v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Federal Power Comm'n; Montana Power Co. v. . . . . . . . . . . . . 930
Ferguson v. United States...................... . ... . .... 915
Ferrara v. United States................................. 931
Ferrell v. Hall... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Fesmire v. Oklahoma.................................... 935
Flemings; Warner v............................... . . . ... 919
Florida; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Florida; Boykin v.................................... . . 940
Florida; Brown v.... . .................................. 938
Florid1t; .Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Florida; Paramore v.................. . ............ . ..... 935
Florida; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Florida; Thomas v...................................... 935
Florida; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Fogg v. Slayton........................................ 937
Fooden v. Board of Governors of State Collrges. .......... 94:-l
Francis; Davidson v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Francis; U. S. Chamber of Commerce v................... 920
Fuller v. South Carolina. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Furman v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Gagnon; Nickols v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Gagnon v. Scarpelli.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Gelbard v. United States................... . . . . . . . . . . . . . . 41
Georgia; Ansley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Georgia; Arkwright v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Georgia; Cummings v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Georgia; Furman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Georgia ; Henderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:-l8
Georgia ; Ja ck son v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Georgia; King v....... . .................... . ..... . . . . . 936
Georgia; LC'C' v................ . ........................ 936
Georgia; Manor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93.5
Georgia; :vliller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:38
Georgia; Park v .................... . .... . ... . ... ... ... . 935
Georgia ; Petree v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
X TABLE OF CASES REPORTED
Page
Georgia; Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Georgia; Thacker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Georgia; Walker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Georgia; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Georgia Attorney General; Doe v. . . . . . . . . . . . . . . . . . . . . . . . . 919
Gibson v. Berryhill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Gilmore v. Maryland.................................... 940
Goetz v. Oregon........................................ 929
Golden v. The Shearman................................ 924
Gomez v. Perez ...................................... 920,942
Goosby v. Osser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Governor. See name of State.
Graham; Miles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Gravel v. United States.................................. 606
Gravel; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606
Gray v. United States................................... 926
Grayned v. Rockford. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Greene v. Real Estate Comm'n of D. C................... 923
Greyhound Corp.; DeLevay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Gutierrez-Rubio v. Immigration and Naturalization Service.. 926
Haines; Brennan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Hall ; Ferrell v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Ham v. Romney........................................ 922
Hamby v. North Carolina............................... 937
Hamilton v. Warden.................................... 927
Hardin v. Dasho........................................ 925
Hardin v. Texas........................................ 927
Hawkins v. Wainwright................................. 941
Hayes; Branz burg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665
Hayes v. Coulon... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Hayes v. United States.................................. 928
Headley v. Palmieri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Healy v. Jamrs......................................... 169
Henderson; Brumfield v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Henderson v. Georgia................................... 938
Herron v. Tennessee....... . ............................ 937
Hocker; :\forford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Hodgin v. Noland...................................... 942
Holt v. Richmond... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
Howard v. Nevada...................................... 933
Hubbard v. Alabama .................................. 934,936
Huffman v. Bet.a........................................ 936
Hurst v. Estes.......................................... 931
TABLE OF CASES REPORTED xr
Page
Hurst v. Illinois..................................... . .. 935
Hurst v. United States................................... 931
Hutter v. Door County. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Illinois; Hurst v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Illinois; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 786
Illinois Board of Governors of State Colleges; Fooden v . . . . 943
Illinois Secretary of State; Midwest Freight Co. v. . . . . . . . . . 932
Immigration and Naturalization Service; Gutierrez-Rubio v . 926
Indiana; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Indiana; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Indiana Governor v. Eschbach........................... 920
Ingram v. Arkansas..................................... 926
In re. See name of party.
Internal Revenue Service. See Commissioner.
International. For labor union, see name of trade.
Irving v. 'Mississippi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Jackson v. Alabama............................ . ..... . .. 938
Jackson v. Belo..................... .. ................. 937
,Jackson v. Georgia...................................... 238
,James; Healy v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Janovic v. Eyman...................................... 934
Johnson v. Florida........................ . ............ . 939
Johnson v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Johnson v. Maryland................................. . .. 937
Jones v. Craven......................................... 931
Jones v. Indiana........................................ 927
Kaplan v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Kassow v. Ohio......................................... 939
Kastigar v. United States................................ 931
Katz v. United States................................... 923
Keaton v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Kelbach v. Utah................................. . .. . .. 935
Kelley v. Kentucky.... . ............ . ................... 916
Kentucky; Kelley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Kentucky; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Kentucky Dept. of Economic Security; Wilson v... . ....... 928
Kerrigan v. Scafati... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Key v. United States .................................... 927
Kidde & Co.; Beckman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
King v. Georgia...................................... . . 936
Kleindienst v . Mandel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753
Kois v. Wisconsin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Koonce v. Oklahoma.................................... 934
XII TABLE OF CASES REPORTED
Page
Krikmanis v. Mannering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Kruchten v. Eyman..................................... 934
Labor Board; New York District Council No. 9 v. . . . . . . . . . 930
Labor Board; Painters & Allied Trades v. . . . . . . . . . . . . . . . . . 930
Labor Union. Sec name of trade.
Laird v. Tatum......................................... 1
Landman v. Clark....................................... 926
Lary v. Texas.......................................... 927
Laskey v. Ohio......................................... 930
Lawrence; Reed v....................................... 920
Lee v. Georgia.......................................... 936
Lentini Bros. Moving & Storage Co.; Magro v. . . . . . . . . . . . . 932
Les's Roller Rink v. Evans............................... 924
Lewis v. Michigan...................................... 929
Lewis; Midwest Freight Forwarding Co. v................. 932
Lewis v. New Orleans ............................. 902,909,913
Lii v. Sida of Hawaii, Inc................................ 930
Limonc v. Massachusetts................................ 936
Logan v. New York..................................... 937
Lokos v. Alabama....................................... 935
Louisiana; Douglas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Louisiana; .T ohnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Louisiana; Marks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Louisiana; McAllister v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Louisiana; Poland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Louisiana; Sinclair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Louisiana; Square v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Louisiana; Strong v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Louisiana; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Lubbock T\Tational Bank; McFerrin v...................... 924
Magro v. Lentini Bros. Moving & Storage Co.............. 932
Maine; United States v.................................. 917
:\1ancusi v. Stubbs...................................... 204
Mandel; Klrindimst v.. ............. ... ................. 753
Mannering; Krikmanis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Manor v. Georgia....................................... 935
Marks v. Louisiana..................................... 933
:\faryland; Arrington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Maryland; Bartholomey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Maryland; Gilmore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Maryland; .T ohnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
l\faryland : Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Maryland; Molter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
TABLE OF CASES REPORTED XIII
l'uge
Maryland; Strong v.. .. . . . . . . . .. .. . . .. .. .. . . . .. . .. . .. . . . 939
:VIaryland Dept. of Employment & Soc. Scrv. v. Francis. . . . . 920
Massachusetts; Limone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:·lG
Massachusetts; Stewart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 845
:VIatthews v. Texas...................................... 940
Matus; Triangle Publications v. . . . . . . . . . . . . . . . . . . . . . . . . . 930
McAllister v. Louisiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
McCants v. Alabama.................................... 933
McEnteggart v. Cataldo.......................... . ...... 943
McFerrin v. Lubbock National Bank...................... 924
McGucken v. United States.............................. 926
McKenzie v. Direct.or, Patuxent Institution................ 916
Mr Kenzie v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
McMillan; Doe v....................................... 922
Mefford v. Warden............................. . ....... 935
Menthen v. Okbhoma................................... 940
Meyer; Austin v........................................ 919
Michigan; Lewis v .. .. .. . . . . . .. . . . . . .. . . . . .. .. . .. .. .. .. . Q29
Midwest Freight Forwarding Co. v. Lewis.................. 932
Miles v. Graham........................................ 928
Miller v. California.................................... . . 919
Miller v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
l\filler v. Maryland...................................... 934
Miller v. Korth Carolina. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Mine Workers; United States Steel Corp. v. . . . . . . . . . . . . . . . 923
Minnesota; Siirila v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Mississippi; Ca pier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Mississippi; Irving v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Mississippi; Pooley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Missouri; Cannon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Missouri; Duisen v, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Missouri; Terry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Molt.er v. ~Iaryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Montana Power Co. v. Federal Power Comm'n.............. 930
l\foore v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 786
Mornles v. Texas....................................... 938
Moran Inland Waterways Corp.; Seaboard Shipping Corp. v. 932
Morehend v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Morford v . Hocker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
:\forningstar v. California................................ 927
Morrissey v. Brewer... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . 471
Mosley; Police Dept . of Chicago v . . . . . . . . . . . . . . . . . . . . . . . 92
Music v. ·washington.............................. . ..... 940
XIV TABLE OF CASES REPORTED
Page
National Labor Relations Board. See Labor Board.
Nebraska; Alvarez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Kebraska; Pope v...................................... 933
Nebraska; Shames v.................................... 901
Nelson; Valdez v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Nevada; Howard v...................................... 933
Nevada; Walker v...................................... 935
New Jersey; Billingsley v................................ 934
Nm, Jersey v. Presha................................... 942
New Jersey; Rosenfeld v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
New Orleans; Lewis v ............................. 902,909,913
New York; Logan v..................................... 927
New York; Pennsylvania v.............................. 917
New York; Szwalla v................................... 926
New York; Vermont v................................... 917
New York City Board of Education; Canty v.............. 940
New York District Council No. 9 v. Labor Board.......... 930
Nichols; Caulk v....................................... 901
Nickerson v. North Carolina............................. 925
Nickols v. Gagnon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Nixon v. Beto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Noland; Hodgin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
North Carolina; Chance v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
North Carolina; Doss v.................................. 939
North Carolina; Hamby v............................... 937
North Carolina; Miller v................................ 937
North Carolina; Nickerson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
North Carolina; Westbrook v. . . . . . . . . . . . . .. . . . . . . .. . .. . . 939
Ohio; Bryson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Ohio; Cart.er v. . . .. . . .. . . .. . .. . . . . . . . . . . . . .. .. .. . . . . . . . 936
Ohio; Crampton v...................................... 941
Ohio; Duling v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Ohio; Eaton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Ohio; Elliott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Ohio; Eubanks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Ohio; Kassow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Ohio; Keaton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Ohio; Laskey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Ohio; Morehead v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Ohio; Staten v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Ohio; White v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Ohio; Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Oklahoma; Brown v .............................. 902,909,914
TABLE OF CASES REPORTED xv
Page
Oklahoma; Fesmire v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Oklahoma; Koonce v.................................... 9;14
Oklahoma; Menthen v. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 940
Oklahoma Governor; Ferrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Olsen v. United States............... . . . . . . . . . . . . . . . . . . . 916
Oregon ; Goetz v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Orito; United States v................................... 919
Orr v. Trinter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Osser; Goosby v. .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Oyen v. Washington.................................... 933
Page; Tilford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Painters & Allied Trades v. Labor Board.................. 930
Paladini; United States v................................ 919
Palmieri; Headley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Panaro ; Soots v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Pappas, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665
Paramore v. Florida..................................... 935
Paris Adult Theatre I v. Slaton.......................... 921
Park v. California....................................... 932
Park v. Georgia......................................... 935
Patuxent Institution Director; McKenzie v. . . . . . . . . . . . . . . 916
Penn Central Trustees; Central Penn National Bank v. . . . . 923
Pennsylvania; Blum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Pennsylvania v. New York. . . . . . . . . . . . . . . . . . . . . . . .. . . . .. . 917
Pennsylvania; Scoleri v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Perez; Gomez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920, 942
Perry v. Sindermann.................................... 593
Petree v. Georgia....................................... 922
Pfizer & Co. ; Connors v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Phelan v. Brierley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Pillis v. State Board of Elections.......................... 927
Pitts v. Wainwright..................................... 941
Planning & Zoning Comm'n of Weston; Cadoux v.......... 924
Poff v. Dept. of Alcoholic Bev. Control of California.. .. .. 924
Pokras v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Poland v. Louisiana..................................... 936
Police Dept. of Chicago v. Mosley. . . . . . . . . . . . . . . . . . . . . . . . 92
Pooley v. Mississippi.................................... 928
Pope v. Nebraska....................................... 933
Portland v. United States................................ 811
Port of Portland v. United States......................... 811
Presha; New J crsey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Rafferty v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
XVI TABLE OF CASES REPORTED
Page
Ralph v. Warden....................................... 942
Ralph; Warden v....................................... 942
Real Estate Comm'n of D. C.; Greene v. . . . . . . . . . . . . . . . . . . 923
Reed v. Lawrence....................................... 920
Reed v. United States................................... 922
Reynolds, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Reynolds v. United States............................... 924
Richmond; Holt v....................................... 931
Robinson v. Florida. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Rockford; Grayned v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 !
Rodriguez; Bogdan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Roe v. Wade........................................... 919
Romney; Ham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Rose; Swinton v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Rosenfeld v. New Jersey................................. 901
Rossi v. United States...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Roth; Board of Regents of State Colleges v. . . . . . . . . . . . . . . . 564
Roth v. Zclker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Rundle; Dickerson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Russo v. Byrne......................................... 929
Saglimbene v. United States.............................. 916
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.... 920
Sanders v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Scafati; Kerrigan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Scarpelli; Gagnon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Schmidt; Farrell v...................................... 915
Schwartz v. United States................................ 923
Scoleri v. Pennsylvania................................... 934
Seaboard Shipping Corp. v. Moran Inland Waterways Corp. 932
Seaman v. Evans........................................ 924
Secretary, Dept. of Health and Social. Services; FarrcH v.... 915
Secretary of Defense v., Tatum........................... 1
Secretary of Housing and Urban Development; Ham v...... 922
Secretary of Navy v. Flemings........................... 919
Secretary of State of Illinois; Midwest Freight Co. v. . . . . . . . 932
Seeney v. Delaware............................. . ....... 939
Sell:u~ v. Brto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Shames v. Nebraska.................................... 901
Shearman, The; Golden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Shirrk v. Thomas....................................... 940
Shirrk; Thomas v....................................... 940
Sida of Hawaii, Inc.; Lii v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Siirila v. Minnesota..................................... 925
TABLE OF CASES REPORTED xvn
Page
Simpson v. United States................................ 925
Sims v. Eyman... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Sinclair v. Louisiana..................................... 939
Sindermann; Perry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 593
Slaton; Paris Adu! t Theatre I v. . . . . . . . . . . . . . . . . . . . .. . . . . 921
Slayton; Brickhouse v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Slayton; Fogg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Slayton; Thornhill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Slayton; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Smith v. Texas......................................... 934
Smith v. United States................................... 927
Smith v. Washington.................................. . . 934
Smith; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Soots v. Panaro.................................. . ...... 932
Routh Carolina; Atkinson v......................... . .... 936
South Carolina; Fuller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Speight; Chambers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Spencer v. United States................................. 926
Square v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Stanley v. Texas....................................... 939
State. See also name of State.
State Board of Elections; Pillis v. . . . . . . . . . . . . . . . . . . . . . . . . 927
Staten v. Ohio.......................................... 938
Steigler v. Delaware. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Stein v. United States................................... 922
Stewart v. Massachusetts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 845
Strong v. Louisiana..................................... 937
Strong v. Maryland..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Stubbs; Mancusi v. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 204
Sullivan v. Georgia... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Superintendent of penal or correctional institution. See name
of superintendent.
Susquehanna Corp. v. Dasho............................ . 925
Swain v. Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Swenson ; Evans v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Swinton v. Rose........................................ 928
Szwalla v. New York.................................... 926
Tatum; Laird v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Taylor; Bell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Tea v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Tennessee; Herron v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Tennessee Comm'r of Highways; Chambers v. . . . . . . . . . . . . . 930
Terry v. Missouri... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
XVIII TABLE OF CASES REPORTED
Page
Texaco Inc.; Belliston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Texas; Branch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Texas; Curry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Texas; David v......................................... 937
Texas; Davis v......................................... 937
Texas; Hardin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Texas; Lary v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Texas; Matthews v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Texas; McKenzie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Texas; Morales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Texas; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Texas; Stanley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Texas; Tea v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Texas; Thames v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Thacker v. Georgia....................... . .............. 936
Thames v. Texas........................................ 937
Thomas v. Florida. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Thomas v. Shirck....................................... 940
Thomas; Shirck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Thornhill v. Slayton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Tilford v. Page......................................... 939
Tollett; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Town. See name of town.
Triangle Publications v. Matus... . . . . . . . . . . . . . . . . . . . . . . . . 930
Trinter; Orr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Trustees of Penn Central; Central Penn National Bank v. . . 923
Tulare Lake Basin Water Storage Dist. ; Salyer Land Co. v .. 920
Tull v. Warden........... . ...................... . ...... 939
12 200-Ft. Reels of Super 8 mm. Film; United St.ates v...... 919
Tyler v. Washington.................................... 937
Union. For labor union, sec name of trade.
United. For labor union, see name of trade.
United States; Affiliated Ute Citizens of Utah v. . . . . . . . . . . 931
United States v. Ash. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
United States; Bacon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
United States; Brenneman v............................. 923
United States v. Brewster.. .. .. .. .. .. . .. . .. . .. . . . . . . . .. . . 501
United States; Brown v .... . . . ........................ 922,923
United States; Burnette v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
United States ?J. Byrum........................... . ..... 125
United States v. Caldwell................................ 665
United Ptates; Campopiano v............................ 915
United States; Cancino v... .. . . . . .. . .. . . . . . .. . .. . . . . . .. . 925
TABLE OF CASES REPORTED xrx
Page
United States; Combs v................................. 224
United States; Crenshaw v.............................. 923
United States; DeTore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
United States; Durham v................................ 926
United States v. Egan.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States; Egan v................................... 922
United States v. Evans.................................. 930
United States; Fasanaro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
United States; Ferguson v............................... 915
United States; Ferrara v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
United States v. Florida................................. 918
United States; Gelbard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States v. Gravel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606
United States; Gravel v................................. 606
United States; Gray v...... . . . . . . . . . . .. . . . . . . . .. . . . . . .. . 926
United States; Hayes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
United States; Hurst v.................................. 931
United States; Kastigar v. . . . .. .. .. . . . .. .. . .. . . . . . . . . . .. 931
United States; Katz v................................... 923
United States; Key v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
United States v. Maine... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
United States; McGucken v.............................. 926
United States; Olsen v........ . . . .. . ..................... 916
United States v. Orito... . ............................... 919
United States v. Paladini................................. 919
United States; Pokras v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
United States; Port of Portland v. . . . . . . . . . . . . . . . . . . . . . . . 811
United States; Reed v................................... 922
United States; RC'ynolds v............................... 924
United States; Rossi v................................... 923
United States; Saglimbene v.... . . . . . . . . . . . . . . . . . . . . . . . . . 916
U nitcd States; Sanders v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
United States; Schwartz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
United States; Simpson v........ . ....................... 925
United States; Smith v.................................. 927
United States; Spencer v............................ ... . 926
United States; Stein v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
UnitC'd States v. 12 200-Ft. Reels of Super 8mm. Film....... 919
United States; Waller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
United States ; Warzyniak v . ............................ 923
United States; Wilkerson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 926
United States; Wolfe v.................................. 923
United States; Zurita v.... .. ......... .. ............... . . 926
XX TABLE OF CASES REPORTED
Page
U. S. Chamber of Commerce v. Francis.................... 920
U. S. District Judge; Headley v. . . . . . . . . . . . . . . . . . . . . . . . . . 920
U. S. District Judge; Hurst v............................ 931
U. S. District Judge; Reed v............................. 920
U. S. District Judge; Russo v............................ 929
U. S. District Judge v. United States... . . . . . . . . . . . . . . . . . . . 915
U.S. District Judge; Whitcomb v........................ 920
U. S. ex rel. See name of real party in interest.
United States Steel Corp. v. Mine Workers................ 923
Utah; Kelbach v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Ute Citizens of Utah v. United States.................... 931
Valdez v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Vermont v. New York................................... 917
Virginia; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Virginia; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Virginia; Walton v..................................... 925
Wade; Roe v........................................... 919
Wa.inwright; Hawkins v................................. 941
Wainwright; Pitts v..................................... 941
Wainwright; Williams v................................. 941
'''alker v. Georgia...................................... 936
Walker v. Nevada....................................... 935
Waller v. United States.................................. 926
Walter Kidde & Co.; Beckman v... . .. . .. . . . . . . . . . . . . . . . . 922
Walton v. Virginia...................................... 925
Wardf:'n. See also name of warden.
Wardm; Cunningham v................................. 938
Warden; Hamilton v.................................... 927
Warden; Mefford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Warden v. Ralph....................................... 942
Warden; Ralph v....................................... 942
Warden; Tull v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Warner v. Flemings..................................... 919
,varrcn, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Warzyniak v. United States.............................. 923
Washington; Cana.day v................................. 940
Washington; Cerny v.................................... 939
Washington; :.VIusic v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Washington; Oyen v.................................... 933
Washington; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
W:tsbington; Tyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Wellston School District. Board of Eduration; Crabtree v. . . . 94::l
Westbrook v. North Carolina............................. 939
TABLE OF CASES REPORTED XXI
Pag-P
Westent, Inc. v. Dept. of Alcoholic Bev. Control of Cal..... . 901
Weston Planning & Zoning Comm'n; Cadoux v. . . . . . . . . . . . . 924
Whitcomb v. Eschbach.................................. 920
White v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Wilkerson v. United States............................... 926
Williams v. Georgia..................................... 936
Williams v. Kentucky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Williams v. Louisiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Williams v. Slayton..................................... 935
Williams v. Smith. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Williams v. Wainwright................................. 941
Wilson v. Deitz. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Wilson v. Indiana....................................... 928
Wisconsin; Kois v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Wolfe v. United States.................................. 923
Worrall; Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Wright v. Beto......................................... 934
Yates v. Cook.......................................... 9:H
Young v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Zelker; Roth v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Zurita v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926

TABLE OF CASES CITED
Page
Abrams v. United States,
250 U. S. 616 716,720
Adams v, Associated Press,
46 F. R. D. 439 685
Adderley v. Florida, 385 u. s. 39
97-98, 115-116, 121,193
Adler v. Board of Ed., 342
U. s. 485 716
Aguilar v. Texas, 378 U. S.
108 226,738
Aikens v. California, 406 u. s. 813 314,
341,371,383,441,443
Alcorta v. Texas, 355 U. S.
28 798
Alderman v. United States,
394 u. s. 165 58, 63-
65, 69, 80, 90,645
Alexander v. United States,
138 U. S. 353 66
Alford v. United States, 282 u. s. 687 698
Alioto v. Cowles Communications,
No. 52150, N. D.
Cal. ( 1969) 686
ACLU v. Radford College,
315 F. Supp. 893 194
American Communications
Assn. v. Douds, 339 U. S.
382 110, 112, 583
Anastaplo, In re, 366 U. S.
82 717
Anderson, In re, 69 Cal. 2d
613 315
Anderson v. Sills, 56 N. J.
210 26
Andres v. United States, 333 u. s. 740 287,402
Aptheker v. Secretary of
State, 378 U.S. 500 186, 782
Arciniega v. Freeman, 404
U. S. 4 479,495,497
Armstrong v. Manzo, 380
U.S. 545 476
l'age
Ashcraft v. Tennessee, 322 u. s. 143 469
Ashton v. Kentucky, 384 u. s. 195 108~09,741
Ash wander v. TV A, 297
U. S. 288 306
Associated Press v. NLRB,
301 U. S. 103 683
Associated Press v. United
States, 326 U. S. 1
683,697,729,734
Bacon v. United States, 446
F. 2d 667 44
Badders v. United States,
240 u. s. 391 325
Baggett v. Bullitt, 377 U. S.
360 11-12,109,597, 741
Bailey v. Richardson, 86
U. S. App. D. C. 248 571
Baine v. Beckstead, 10 Utah
2d 4 489, 495-496
Baird v. State Bar of Arizona,
401 U. S. 1 11,
65,181,713,715,718
]3aker v. Carr, 369 U. S.
186 14, 26
Bakery Drivers v. Wagshal,
333 U. S. 437 206, 217-218
Baldwin v. Missouri, 281
U. S. 586 468
Bantam Books v. Sullivan,
372 U. S. 58 575, 734
Barber v. Page, 390 U. S.
719 209-213,220--223
Barenblatt v. United States,
360 u. s. 109 717, 742
Barker v. Hardway, 283 F.
Supp. 228 119
Barker v. Wingo, 407 U. S.
514 810, 915-916
Barkman v. Sanford, 162 F.
2d 592 687
Barr v. Matteo, 360 U. S.
564 612,617,627
XXIII
XXIV TABLE OF CASES CITED
Pago
Barry v. Cunningham, 279
U. S. 597 544
Bartholomey v. State, 260
Md. 504 442
Bates v. Little Rock, 361
U. S. 516 183,
680, 700, 717, 730, 734
Bearden v. South Carolina,
443 F. 2d 1090 489
Beck v. Washington, 369 u. s. 541 743
Beecher v. Alabama, 389 u. s. 35 234
Beecher v. State, 288 Ala.
1 ~7
Bell v. Burson, 402 U. S.
535 493,570-572,584,590
Bell v. Hood, 327 U. S.
678 65-66
Benanti v. United States,
355 U.S. 96
Berger v. New York, 388
63
U. S. 41 62, 78
Berkwitz v. Humphrey, 163
F. Supp. 78
Betts v. Brady, 316 U. S.
150
455 287
Bey v. Connecticut Bd. of
Parole, 443 F. 2d 1079
482,489
Billings v. Truesdell, 321
U. S. 542
Bivens v. Six Unknown
Agents, 403 U. S. 388
Blackmer v. United States,
19
65
284 U. S. 421 688, 737
Blackwell v. I ssaquena
Board of Ed., 363 F. 2d
749 118
Blair v. United States, 250 u. s. 273 64,
75-76,688, 702,737
Blau v. United States, 340
U. S. 159 74, 737
Blau v. United States, 340
U.S. 332
Bloch v. United States, ~26
66
F. 2d 185 219
Blodgett v. Holden, 275
U. S. 142 431,464
Bloom v. Illinois, 391 U. S.
194 692
Page
Board of Ed. v. Barnette,
319 U. S. 624 269, 715
Board of Regents v. Roth,
408 U. S. 564
596,599,601-605,940
Boddie v. Connecticut, 401 u. s. 371 499, 570
Bolling v. Sharpe, 347 U. S.
4q7 572
Bond v. Floyd, 385 U. S.
116 544,636
Botany Mills v. United
States, 278 U. S. 282 150
Boutilier v. INS, 387 U. S.
118 766
Braden v. United States,
365 U. S. 431 717
Brady v. Maryland, 373
U. S. 83
787-788,794, 798,808
Brandenburg v. Ohio, 395
U. S. 444 188,202,
640,716,720,773,780
Branzburg v. Hayes, 408 u. s. 665 640
Branzburg v. Pound, 461
S. W. 2d 345 668-672, 708
Bratton v. United States,
73 F. 2d 795 696
Brewster v. Boston Herald-
Traveler, 20 F. R. D. 416 685
Bridges v. California, 314
U. S. 252 680
Brooks v. Florida, 389 U. S.
413 245
Brown v. Louisiana, 383
U. S. 131 116
Budd Estate v. Commissioner,
49 T. C. 468 133
Bulstrod v. Letchmere, 22
Eng. Rep. 1019 682
Burnside v. Byars, 363 F.
2d 744 118
Burstyn, Inc. v. Wilson, 343 u. s. 495 734-735
Burton v. United States, 202
U.S. 344
522,541- 542,615,625
Bute v. Illinois, 333 U. S.
6ffl ~7
Butts v. Dallas School Dist.,
436 F. 2d 728 118
TABLE OF CASES CITED XXV
Page
Bynum v. Schiro, 219 F.
Supp. 204 97
Cafeteria Workers v. ~1c-
Elroy, 367 U. S. 886
. 481,573-575,584,597
Caldwell, Application of, 311
F.Supp.358 676-677,730,732
Caldwell v. United States,
434 F. 2d 1081 670-671, 674,
679,729,747, 749-752
California v. Green, 399
U. S. 149 213
Calton v. Utah, 130 U. S.
83 402
Cameron v. Johru,on, 390
U. S. 611 112, 120
Campbell v. United States,
365 u. s. 85 646
Cantwell v. Connecticut, 310
U. S. 296 101, 113, 117,
717, 719,741,912-913
Caritativo v. California, 357
U.S. 549 358
Carlson v. California, 310 u. s. 106 97
Carroll v. Princess Anne,
393 U.S. 175 575
Carter v. United States, 417
F. 2d 384 44, 742
Central Union Trust v. Garvan,
254 U. S. 554 570
Chambers v. Maroney, 399 u. s. 42 214
Chaplinsky v. New Hampshire,
315 U. S. 568 103,
111,903-905,911-913
Chapman, In re, 166 U. S.
661 519,541
Chase v. Page, 456 P. 2d
590 484,489
Chicago v. Fort, 46 Ill. 2d
12 114
Chicago v. Gregory, 39 Ill.
2d 47 111
Chicago v. Hansen, 337 Ill.
App. 663 112
Chicago v. Holmes, 339 Ill.
App. 146 112
Chicago v. Meyer, 44 Ill.
2d 1 111
Chicago v. Nesbitt, 19 III.
App. 2d 220 112
Page
Chicago v. Terminiello, 400
Ill. 23 111
Chicago v. Williams, 45 III.
App. 2d 327 112
Chinese Exclusion Case, 130 u. s. 581 765, 770, 782
Citizen Pub. Co. v. United
States, 394 U.S. 131 683, 734
Clancy v. United States, 365 u. s. 312 646
Clein v. State, 52 So. 2d
117 685
Coates v. Cincinnati, 402
U.S.611 108,110, 113-114, 741
Cobbledick v. United States,
309 U. S. 323 608
Cochran v. Couzens, 59 App.
D. C. 374 517
Coffin v. Coffin, 4 Mass.
1 513-517,533,548,660
Cohen v. California, 403
U. S. 15 95,717,
901,905,907,911,914
Cole v. Richardson, 405
U. S. 676 110, 718
Combs v. LaVallee, 29 App.
Div. 2d 128 496,498
Commissioner v. Church
Estate, 335 U. S. 632
133,147,151,165
Commission er v. Holmes
Estate, 326 U. S. 480
143,145,154,157
Commissioner v. Sunnen,
333 U. S. 591 139, 159
Commissioner of Internal
Revenue. See Commissioner
Commonwealth. See also
name of Commonwealth.
Commonwealth v. Elliott,
371 Pa. 70 346
Communist Party v. SACB,
367 U. S. l 188, 717, 761
Connally v. General Constr.
Co., 269 U. S. 385 108,906
Connell v. Higginbotham,
403 U. S. 207 572,577,590
Costello v. United States,
350 U. S. 359 60, 64, 76, 632,
687,700-701, 742-743
XXVI TABLE OF CASES CITED
Page
County. See name of
county.
Cox v. Louisiana, 379 U. S.
536 97-99, 113, 115-
116, 120,123,193,717
Cox v. Louisiana, 379 U. S.
559 98,101,
111, 115-117,120, 741
Cox v. New Hampshire, 312 u. s. 569 98, 115-116
Cox v. United States, 406
U. S. 934 62
Craig v. Harney, 331 U. S.
367 111,684
Cramp v. Board of Pub.
Instruction, 368 U. S. 278
108-109,597, 734
Curcio v. United States, 354
U. S. 118 74, 737
Curtis v. Bennett, 256 Iowa
1164 493
Curtis Pub. Co. v. Butts,
388 U. S. 130 680, 684
Dakota County v. Glidden,
113 u. s. 222 206-207, 217-218
Damico v. California, 389
U. S. 416 586
Davis v. Francois, 395 F.
2d 730 117
Davis v. Ichord, 143 U. S.
App. D. C. 183 10-11
Debs v. United States, 249 u. s. 211 716
DeGrcgory v. Atty. Gen. of
N. H., 383 U. S. 825
680,700,718,734,739
De Jonge v. Oregon, 299
U.S.353 95,101,117, 726,741
Dennis v. United States,
341 u. s. 494 716, 720
Dickey v. Alabama Board
of Ed., 273 F. Supp. 613 120
Dombrowski v. Eastland,
387 U. S. 82 516, 618-621
Dombrowski v. Pfister, 380 u. s. 479 109,114, 741
Drifka v. Brainard, 89 S.
Ct. 434 16
Drown v. Portsmouth School
Dist., 435 F. 2d 1182 569
Dudley v. United States,
427 F. 2d 1140 44
Page
Duncan v. Louisiana, 391
U.S. 145 356
Dunn v. Blumstein, 405
U. S. 330 95, 101
Dutton v. Evans, 400 U. S.
74 213,216
East Meadow Assn. v. Board
of Ed., 18 N. Y. 2d 129
Edwards v. South Carolina,
97
;~72 U.S. 229
99,109,113,120,717
Ehlert v. United States, 402
U.S. 99 110
Ekiu v. United States, 142
U. S. 651 766
Elfbrandt v. Russell, 384
U. S. 11 186,597,681, 734
Elkins v. United States, 364
U. S. 206
Ellis v. Dixon, 349 U. S.
458
63
97
Epperson v. Arkansas, 393 u. s. 97 763
Escoe v. Zerbst, 295 U. S.
490 493
Essex Universal Corp. v.
Yates, 305 F. 2d 572 155
Estate. See name of estate.
Esteban v. Central Missouri
College, 415 F. 2d 1077
110, 118, 192, 202
Estes v. Texas, 381 U. S.
532 685,727
Evans, In re, 146 U. S. App.
D. C. 310 44, 52
Ewing v. Mytinger & Casselberry,
339 U. S. 594 570
Ex parte. See name of
party.
Fay v. Noia, 372 U. S.
391 435
Feguer v. United States, 302
F. 2d 214 406
Feiner v. New York, 340
U. S. 315 716, 721
Ferguson v. Thomas, 430 F.
2d 852 569
F.ibreboard Corp. v. NLRB,
379 u. s. 203 582
Field v. Clark, 143 U. S.
649 626
TABLE OF CASES CITED XXVII
Page
Flast v. Cohen, 392 U. S. 83 26
Flemming v. Nestor, 363 u. s. 603 576
Flower v. United States, 407
U. S. 197 97
Fok Yung Yo v. United
States, 185 U. S. 296 766
Fong Yue Ting v. United
States, 149 U.S. 698 765, 782
Food Employees v. Logan
Valley, 391 U. S. 308
99, 115--117
Ford Estate v. Commissioner,
53 T. C. 114 133
Fowler v. Rhode Island, 345
U. S. 67 97
Francis v. Resweber, 329
U. S. 459 241,273, 277-278,
285, 315, 326-327, 329,
331, 379- 380, 392, 407-
408, 410, 422-423,428-
429, 431, 441, 451, 453
Freedman v. Maryland, 380 u. s. 51 184,575,681, 734
Freeman v. Gould School
Dist., 405 F. 2d 1153 569
Fuentes v. Shevin, 407 U. S.
M 481
Furman v. Georgia, 408
U. S. 238 800,845,941
Furman v. State, 225 Ga.
253 295
Galvan v. Press, 347 U. S.
522 762, 766, 770
Garland v. Torre, 259 F.
2d 545 686, 743
Garner v. Louisiana, 368
U. S. 157 99, 109- 110, 121
Garrison v. Louisiana, 379
U. S. 64 684, 724
Gelbard v. United States,
408 U. S. 41 915- 916
Giaccio v. Pennsylvania, 382
U. S. 399 108
Gibson v. Florida Legis.
Com, 372 U. S. 539
65, 190, 700, 713, 716-
717, 734, 739- 741, 777
Gideon v. Wainwright, 372
U.S. 335 258
Page
Giglio v. United States, 405
U. S. 150 810
Goesaert v. Cleary, 335
U. S. 464 719
Goldberg v. Kelly, 397 U. S.
254 481,485-487,
491, 494-495, 570-572,
576-577, 584, 590-591
Goldsmith v. Board of Tax
Appeals, 270 U. S.117 576,590
Goldstein v. United States,
316 u. s. 114 64
Gomillion v. Lightfoot, 364
U.S. 339 390
Goodfader, In re, 45 Haw.
317 686
Gooding v. Wilson, 405 U.S.
518 110-111, 114,124,717,
902,905-908,911-914
Goolsby v. Gagnon, 322 F.
Supp. 460 489
Graham v. Richardson, 403
U. S. 365 481,
493,571,583,597,766
Grand Jury Investigation
(Maratea), In re, 444 F.
2d 499 44
Grand Jury Proceedings
(Egan), In re, 450 F. 2d
199 43,52
Grand Jury Proceedings
(Walsh), In re, 450 F. 2d
231 44
Grand Jury Witnesses, In
re, 322 F. Supp. 573
686,703-704
Gravel v. United States, 408
U. S. 606 555, 724
Grayned v. Rockford, 408
U. S. 104 94,933
Green v. United States, 356
U. s. 165 83, 428
Greene v. McElroy, 360
U. S. 474 497
Gregory v. Chicago, 394 u. s. 111 99,108,111
Gremillion v. NAACP, 366 u. s. 293 181, 718, 740
Griffin v. Illinois, 351 U. S.
12 286
XXVIII TABLE OF CASES CITED
Page
Griggs v. Duke Power Co.,
401 U. S. 424 588
Grisham v. Hagan, 361
U. S. 278 18
Groba.n, In re, 352 U. S.
330 742
Grosjean v. American Press,
297 u. s. 233
680,683,726--727, 7:34
Grunow, In re, 84 N. ,T. L.
2~ 6~
Guynn v. United States, 437
F. 2d 1148 147
Hague v. CIO, 307 U. S.
496 113, 115-117, 123
Hahn v. Burke, 430 F. 2d
100 492
Hale v. Henkel, 201 U. S.
43 66, 702, 737
Hammond v. South Carolina
College, 272 F. Supp. 947
118-119
Hannah v. Larche, 363 u. s. 420 570, 687
Hannegan v. Esquire, Inc.,
327 U. S. 146 583
Harisiades v. Shaughnessy,
342 U. S. 580 762,770
Harris v. New York, 401 u. s. 222 69
Harrison v. United States,
392 u. s. 219 63
Helvering v. Duke, 290
U. S. 591 133
Helvering v. Hallock, 309 u. s. 106 147
Hendricks v. United States,
223 u. s. 178 632,702,742
Hentoff v. Ichord, 318 F.
Supp. 1175 610
Herndon v. Lowry, 301
U.S. 242 109
Hewett v. North Carolina,
415 F. 2d 1316 498
Hintopoulos v. Shaughnessy,
353 U. S. 72 769
Hoffman v. United States,
341 U. S. 479 66
Holland F~state v. Commissioner,
1 T. C. 564 147-148
Holt v. United States, 218
U. S. 245 632, 742
Page
Honigman v. Green Giant
Co., 208 F. Supp. 754 155
Hooley v. United States,
209 F. 2d 219 74
Hornsby v. Allen, 326 F. 2d
605 590
Howard v. Fleming, 191
U. S. 126 324, 457
Humphrey v. Cady, 405
U. S. 504 915
Hurtado v. California, 110 u. s. 516 688
Hutchison v. Patterson, 267
F. Supp. 433 489
Hyser v. Reed, 115 U. S.
App. D. C. 254 485,497
Indiana Farmer's Guide v.
Prairie Farmer Pub. Co.,
293 U. s. 268 683
In re. See name of party.
Internal Revenue Service.
See Commissioner.
International Harvester v.
Kentucky, 234 U. S. 216 108
Interstate Circuit v. Dallas,
390 U. S. 676 108-109
Jackson v. Bishop, 404 F.
2d 571 288,384,407,430
Jackson v. Dickson, 325
F. 2d 573 443
Jay v. Boyd, 351 U. S.
3~ 700
Jencks v. United States, 353
U.S. 657 644
Jennings v. Smith, 161 F.
2d 74 166
Johnson v. Zerbst, 304 U. S.
458 359
Joint Anti-Fascist Com. v.
McGrath, 341 U. S. 123
481,573-574,589
.Tones v. Board of Regents,
436 F. 2d 618 118-119
Jones v. Hopper, 410 F. 2d
1323 569
Jones v. Rivers, 338 F. 2d
8~ ~8
Jones v. United States, 362 u. s. 257 227
Jordan v. De George, 341 u. s. 223 108
TABLE OF CASES CITED XXIX
1,age
Joslyn v. People,
297
67 Colo.
J. P. Stevens & Co. v.
685
NLRB, 380 F. 2d 292
Kasper v. Brittain, 245
2d 92
582
F.
360
Kastigar v. United States,
406 U. s. 441 810
Katz v. United States, 389
U. S. 347 62, 78
Keller v. United States, 213
U. S. 138 766
Kemmler, In re, 136 U. S.
436 241, 264--
267,284,323,326,329,
331,378,380,407,410,
421-422, 428, 431, 451
Kent v. United States, 383
U.S. 541 496
Keyishian v. Board of
Regents, 385 U. 8.
589 11-12, 181,186,
582-583,597-598, 763
Kilbourn v. Thompson, 103 u. s. 168 509, 513-
514, 516, 532-533, 552,
617-621, 624, 635, 649
Kimm v. Rosenberg, 363
U. S. 405 769
King Estate v. Commissioner,
37 T. C. 973
133- 134, 162, 166
Kingsley Pictures v. Regents,
360 U. S. 684 705
Kinsella v. Singleton, 361 u. s. 234 18
Kirby v. Illinois, 406 U. 8.
6~ ~3
Kleindienst v. Mandel, 408
U.S. 753 640
Knauff v. Shaughnessy, 338 u. 8. 537 762
Konigsberg v. State Bar,
366 U.S. 36 717
Kovacs v. Cooper, 336 U.S.
77 116
Kunz v. New York, 340 u. 8. 290 108, 114--115
Labor Board. See NLRB.
Labor Union. See name of
trade.
Page
La.ke Carriers v . .Mac:\follan,
406 u. s. 498 110
Lamont v. Postmaster General,
381 U. S. 301 11-12,
25, 640, 727, 730, 763,
765, 776-777, 781-784
Lancey v. United States,
356 F. 2d 407 697
Lanzetta v. New Jersey,
306 u. s. 451 108
Lawn v. United States, 355 u. s. 339 60, 64, 77
Lawrence, Ex parte, 116
Cal. 298 685
Law Students Council v.
Wadmond, 401 U. S. 154
184,186,717-718
Lem Moon Sing v. United
States, 158 U. S. 538 766
Levitt, Ex parte, 302 U. S.
633 13
Lober v. United States, 346 u. 8. 335 143, 147, 154, 157
Long v. Ansell, 293 U. S.
76 521,614
Lorain Journal v. United
States, 342 U. 8. 143 683
Lord Grey's Trial, 9 How.
St. Tr. 127 682
Louisiana ex re!. Francis v.
Resweber, 329 U. S.
459 241,273,277-278,
285, 315, 326-327, 329,
331,379-380,392,407-
408,410,422-423,428-
429, 431, 441, 451, 453
Louisiana ex rel. Gremillion
v. NAACP, 366 U. S. 293
181, 193, 718, 740
Lovell v. Griffin, 303 U. S.
444 113,117,704,727
Lynch v. Household Fina.nee
Corp., 405 U.S. 538 940--941
Mabee v. White Plains Pub.
Co., 327 U. S. 178 683
Mackin v. United States,
117 U. S. 348 687
Madole v. Barnes, 20 N. Y.
2d 169 97
Mahler v. Eby, 264 U. S.
32 766
XXX TABLE OF CASES CITED
Pug/>
Malinski v. New York, 324
U.S. 401 590
Malloy v. Hogan, 378 U. S.
1 258,737
Mancusi v. DeForte, 392
U. S. 364 227-228
Mapp v. Ohio, 367 U. S
643 63, 67,435
Marbury v. Brooks, 7
Wheat. 556 697
Marbury v. Madison, 1
Cranch 137 466
Marcus v. Search Warrant.,
367 U.S. 717 575
Marsh v. Alabama, 326 u. s. 501 727
Martin v. Struthers, 319 u. s. 141 681, 727, 771
Marx, In re, 451 F. 2d
466 44
Massiah v. United States,
377 u. s. 201 452
Mattox v. United States,
156 U. S. 237 213
Maxwell v. Bishop, 398 F.
2d 138 390,406--407,449
May v. Heiner, 281 U. S.
238 164--165
May v. United States, 84
U. S. App. D. C. 233 522
McCormick v. Burnet, 283 u. s. 784 133
McCray v. Illinois, 386 u. s. 300 698,723,738
McDonald v. Election
Comm'rs, 394 U. S. 802 719
MrElroy v. Guagliardo, 361
U. S. 281 18
McElvaine v. Brush, 142
U.S. 155 284
McGautha v. California, 40'2 u. s. 183 245-249, 284,295,
297,310,315, 325,329-
330, 334, 339, 365, 381,
383,387,397, 399--402,
408, 410, 419, 425--427,
430, 435, 440, 448, 456
McGowan v. Maryland, 366
U.S. 420 719
McGrain v. Daugherty, 273
U. S. 135 610
Page
McKart v. United States,
395 U. S. 185 19
McLaughlin v. Florida, 379
U. S. 184 310
McLean Trucking v. United
States, 321 U. S. 67 841
McMann v. SEC, 87 F. 2d
377 690
McNeese v. Board of Ed.,
373 U. S. 668 586
McNeil v. Patuxent Institution
Director, 407 U. S.
245 915-916
McNichol Estate v. Commissioner,
265 F. 2d 667 147
Medley, Ex parte, 134 U. S.
160 245,288,354
Meers v. Wilkins, 326 F. 2d
135 806
Mempa v. Rhay, 389 U. S.
128 475,480,499
Menechino v. Warden, 27
N. Y. 2d 376 484
Meyer v. Nebraska, 262
U. S. 390 572,588
Miller v. Pate, 386 U. S.
1 798
Milligan, Ex parte, 4 Wall.
2 17
Mills v. Alabama, 384 U. S.
214 704,727
Milwaukee Social Democratic
Pub. Co. v. Burleson,
255 U.S. 407 277,325,331
Miranda v. Arizona, 384
U. S. 436 435
Monitor Patriot v. Roy, 401
U.S. 265 684
Monroe v. Pape, 365 U. S.
167 66,586
Mooney v. Sheriff, 269
N. Y. 291 685
Moose Lodge v. Irvis, 407
U. R. 163 14
Morissette v. United States,
342 u. s. 246 344,452
Morrissey v. Brewer, 443 F.
2d 942 479
Morrissey v. Brewer, 408
U. S. 471 571,942
Murchison, In re, 349 U. S.
133 646
TABLE OF CASES CITED XXXI
Page
Murdock v. Pennsylvania,
319 U. S. 105 683, 705
Murphy v. Colorado, No.
19604, Sup. Ct. Colo.
(1961) 686
Murphy v. Waterfront
Comm'n, 378 U. S. 52 64
Murray v. Page, 429 F. 2d
1359 482
Napue v. Illinois, 360 U. S.
264 797-798, 808
Nardone v. United States,
308 u. s. 338 63, 68
NAACP v. Alabama, 357
U. S. 449 65,181,
183, 190, 680, 700, 713,
715, 730, 734---735, 739
NAACP v. Alabama, 377
U. S. 288 190, 681
NAACP v. Button, 371
U. S. 415 95, 101, 117,
181, 680, 700, 716, 734,
738-739, 741, 746, 777
National Ins. Co. v. Tidewater
Co., 337 U. S. 582 571
NLRB v. Fruit & Vegetable
Packers, 377 U. S. 58 98
National Window Glass
Workers, In re, 287 F.
219 747
Near v. Minnesota, 283
U. S. 697 184,202,680,727
New York Times v. Sullivan,
376 U. S. 254 95--96, 103,
640, 680, 683, 705, 724,
726-727, 731, 734, 738
New York Times v. United
States, 403 U. S. 713 640,
643, 647, 684, 721 , 727
Niemotko v. Maryland, 340
U. S. 268 95- 97, 100
Northern Lines Merger
Cases, 396 U. S. 491
813,822, 841
Northern Securities v.
United States, 193 U. S.
197 ~5
Noto v. United States, 367
U. S. 290 186, 188, 773, 780
Novak v. Beto, 453 F . 2d
661 245
Page
Noyd v. Bond, 395 U. S.
683 19
Nye v. United States,
U. s. 33
O'Callahan v. Parker,
U. S. 258
313
692
395
18--19
Oceanic Navigation Co. v.
Stranahan, 214 U.S. 320 766
October 1969 Grand Jury,
In re, 435 F. 2d 350 74
Ocstereich v. Selective Service,
393 U. S. 233 19
Oklahoma Press v. Walling,
327 u. s. 186 81,683
Old Colony Trust v. United
States, 423 F. 2d 601 133, 167
Olmstead v. United States,
277 u. s. 438 63, 68
Olsen v. United States, 446
F. 2d 912 44
O'Malley v. United bta.tes,
220 F. Supp. 30 156
O'Neil v. Vermont, 144 U.S.
323 249,272,
276-280, 323-325, 327,
330-332, 378, 419, 457
On Lee v. United States,
343 U. S. 747 62
Oregon v. Mitchell, 400
U. S. 112 470
Organization for Better
Austin v. Keefe, 402 U. S.
415 184
Orr v. Trinter, 444 F. 2d
128 569
Osborn v. United States,
385 u. s. 323 62
Overfield v. Pennroad Corp.,
42 F. Supp. 586 138
Papachristou v. Jacksonville,
405 U. S. 156 108
Pardee Estate v. Commissioner,
49 T. C. 140 133
Parisi v. Davidson, 405
U.S. 34 19
People v. Anderson, 6 Cal.
3d 628 283, 288, 298, 314,
385,411,436-437,442
Peoplf' v. Dohrn, Crim. No.
69-3808, Cook County,
Ill., Cir. Ct. (1970) 686
XXXII TABLE OF CASES CITED
Pnge
People v. Moore, 35 Ill. 2d
399 790--791
People v. Morris, 80 Mich.
634 360
People v. Trunnell, 19 Cal.
App. 3d 567 212
People ex rel. Combs v. La-
Vallee, 29 App. Div. 2d
128 496,498
People ex rel. Menechino v.
Warden, 27 N. Y. 2d 376 484
People ex re!. Mooney v.
Sheriff, 269 N. Y. 291 685
Perlman v. Feldman, 219 F.
2d 173 155
Perlman v. United States,
2~ u. s. 7 600
Perry v. Sindermann, 408
U.S.593 578,580-581,603,940
Perry v. Williard, 247 Ore.
145 498
Pervcar v. Commonwealth,
5 Wall. 475 264,276,279,322
Peters v. Hobby, 349 U. S.
331 573
Phillips v. Commissioner, 283 u. s. 589 570
Pickering v. Board of Ed.,
391 u. s. 563 202,493,
571, 583, 597-598, 724
Picmonte v. United States,
367 U. S. 556 64
Plunkett v. Hamilton, 136
Ga. 72 685
Poe v. Ullman, 367 U. S.
497 110
Police Dept. v. Mosley, 408 u. s. 92 107, 115-116, 933
Pope v. United States, 372
F. 2d 710 406
Popkin, In re 460 F. 2d
328 44
Poulos v. New Hampshire,
345 U. S. 395 98, 115
Powell v. Alabama, 287
U.S. 45 287
Powell v. McCormack, 395
U. S.486 516,544,546,618,620
Powell v. Texas, 392 U. S.
514 258,328,
344, 396, 422, 452, 455
Page
Public Workers v. Mitchell,
330 u. s. 75 14,202,597
Pugach v. Dollinger, 365
U.S. 458
Quantity of Books v. Kan-
62
sas, 378 U. S. 205 575
Quinn v. United State.~, 349
U. S. 155 737
Ralph v. Warden, 438 F. 2d
786 341,411,443,459
Raymond v. Thomas, 91
U. S. 712
Red Lion Broadcasting v.
20
FCC, 395 U. S. 367 763
Reed v. Reed, 404 U. S.
71 95, 99
Reed v. United States, 448
F. 2d 1276
Reid v. Covert, 354 U. S.
44
1 18-19,287,357
Reinecke v. Northern Trust,
278 U. S. 339 133-134, 146,
153-154, 162, 164-165
Repouille v. United States,
165 F. 2d 152 360-361, 370
Rex v. Abingdon, 170 Eng.
Rep. 337 623
Rex v. Cowper, 87 Eng.
Rep. 611 696
Rex v. Creevey, 105 Eng.
Rep. 102 623
Rex v. Williams, 89 Eng.
Rep. 1048 623
Rex v. Wright, 101 Eng.
Rep. 1396 623
Richardson v. Belcher, 404
U. S. 78 719
Rideau v. Louisiana, 373
U. S. 723 685
Robinson v. California, 370
U.S.660 241,257,273,277-
282, 309, 328-329, 332,
393, 422, 425, 452, 457
Rochin v. California, 342 u. s. 165 392
Rockford v. Grayned, 46 Ill.
2d 492 106
Rogers v. United States, 340
U. S. 367
Rosado v. Flood, 394 F. 2d
139
74
44
TABLE OF CASES CITED XXXIII
Page
Rose v. Haskins, 388 F. 2d
91 479,483
Rosenfeld v. New Jersey,
408 U.S. 901 914
Roth v. United States, 354 u. s. 476 103, 230-232
Roviaro v. United States, 353
U.S. 53 499,646,698, 723, 738
Rudolph v. Alabama, 375
U. S. 889 329,
344,408,410,427,460
Russo, In re, 448 F. 2d
369 44
Saia v. ~ew York, 334 U. S.
558 97,102,109,113,116
Santobello v. New York, 404 u. s. 257 810
Scales v. United States, 367
U.S. 203 186,188,202,645, 716
Schenck v. United States,
249 U. S. 47 716, 720
Scher v. United States, 305
U. S. 251 646, 723
Schilb v. Kuebel, 404 U. S.
357 719
Schmidt v. United States,
177 F. 2d 450 360
Schneider v. Rusk, 377 U. S.
163 ~2
Schneider v. State, 308 U. S.
147 101, 113,116-117,
119,121,680,717,741
Schwarc v. Bar Examiners,
353 u. s. 232 574
Scoville v. Board of Ed.,
425 F. 2d 10 120
S&E Contractors v. United
States, 406 U. S. 1 810
SEC v. Chenery Corp., 318
U. S. 80 842
SEC v. Medical Committee,
404 U. S. 40:1 206, 218-219
Shapiro v. Thompson, 394
U. S. 618 571,597
Shaughnessy v. Mezei, 345
U.S. 206 766
Shelton v. Tucker, 364 U. S.
479 101,117,180,
582-583, 597-598, 718,
734, 740-741, 763, 777
Sheppard v. Maxwell, 384
U. S. 333 685, 719
Page
Sherbert v. Verner, 374
U. S. 398 571 , 584,597
Sherman v. United States,
356 U. S. 369 68
Shillitani v. United States,
384 U. S. 364 43, 74
Shuttlesworth v. Birmingham,
382 U.S. 87 108, 114, 121
Shuttlesworth v. Birmingham,
394 U. S. 147
97, 99, 113, 115
Silver v. New York Stock
Exchange, 373 U. S. 341 592
Silverthorne Lumber v.
United States, 251 U. S.
385 62-69, 737
Sindermann v. Perry, 430
F. 2d 939 586
Skinner v. Oklahoma,. 316 u. s. 535 356
Slochower v. Board of F.,d.,
350 U. S. 551 576,584, 590
Smith v. California, 361
U.S. 147 109,726,731,734,741
Smith v. Illinois, 390 U. S.
129 646,698
Socialist Labor Party v.
Gilligan, 406 U. S. 583 219
Solesbee v. Balkcom, 339 u. s. 9 289
Speiser v. Randall, 357
U.S.513 109,184,584,597,741
Spiegel Estate v. Commissioner,
335 U.S. 701 133,165
Stanley v. Georgia, 394 U.S.
557 640,763,771
Stanley v. Illinois, 405 U. S.
6~ ~2
State. See also name of
State.
State v. Alvarez, 182 Ncb.
358 442
State v. Buchanan, 250 Ore.
244 686
State v. Crook, 253 La.
961 442
State v. Davis, 158 Conn.
341 439,442
State v. Holmes, 109 N. J.
Super. 180 489
State v. Knops, 49 Wis. 2d
647 686,704
XXXIV TABLE OF CASES CITED
Page
State v. Pace, 80 N. M.
364 442
State v.
346
Profaci, 56 N. J.
State Street Trust v. United
States, 160 F. Supp. 877;
263 F. 2d 635
Staub v. Baxley, 355 U. S.
910
167
313 97, 113
Steelworkers v. Warrior &
Gulf Co., 363 U. S. 574 602
Stein v. New York, 346 u. s. 156 287,357
Sterling v. Constantin, 287
U. S. 378
Stevens & Co. v. NLRB,
19
380 F. 2d 292 582
Stewart v. Massachusetts,
408 U. S. 845 932-933, 941
Stockdale v. Hansard, 112
Eng. Rep. 1112 618-
619, 622-623, 658-659
Stolar, Jn re, 401 U. S.
23 65,186,713,715,718
Street v. New York, 394
U. S. 576 95, Ill, 718
Stromberg v. California, 283
U. S. 359 109, 726, 741
Stubbs v. State, 216 Tenn.
567 209,214,221
Sweezy v. New Hampshire,
354 U. S. 234 181, 183, 581-
582, 734, 739-740, 763
Sykes v. Director of Public
Prosecutions, [1961] 3
W. L. R. 371 696
Talley v. California, 362
U.S.60 116,680,730, 734-735
Taylor, In re, 412 Pa. 32 686
Teamsters v. Newell, 356
U. S. 341
Tenney v. Brandhove, 341
U.S. 367
99
514-516, 534,544, 547-
548, 624, 635---636, 660
Terminiello v. Chicago, 337
U. S. I 95, 111,721,775
Thomas v. Collins, 323 U. S.
516 680,705, 763-764, 773
Thomas v. Matthews, 94
Ohio St. 32 140
Page
Thornhill v. Alabama, 310
U. S. 88 99, 109,
118,230--231, 717,729
Time, Inc. v. Hill, 385 U. S.
3~ 726
Tinker v. Des ~Ioines
School Dist., 393 U. S.
503 97, 100--101, 116-
121, 180,189,191,201
Toledo Newspaper Co. v.
United States, 247 U. S.
402 692
Torcaso v. Watkins, 367
U. S. 488 597
Toth v. Quarles, 350 U. S.
11 18
Townsend v. Sain, 372 U. S.
293 435
Tribune Review v. Thomas,
254 F. 2d 883 684
Trop v. Dulles, 356 U. S.
86 242,258,
269-282, 285, 289, 299,
304, 327-332, 343-344,
379, 381,383,398,408-
410, 422-425,429, 431-
432, 451, 457, 464-465
Truax v. Raich, 239 U. S.
33 574,588
Tucker, In re, 5 Cal. 3d
171 497
Turner v. Williams, 194 u. s. 279 762, 766
Ughbanks v. Armstrong, 208 u. s. 481 493
Union. For labor union, see
name of trade.
United. For labor union,
see name of trade.
United Press Assns. v.
Valente, 308 N. Y. 71 684
United States v. Ballin, 144
U. S. I 626
United States v. Blm.-., 384 u. s. 251 60, 64, 82-84
United States v. Bramblett,
348 U. S. 503 522
United States v. Brown, 381
U. S. 437 543
United States v. Bryan, 339
U. S. 323 737-738, 686,688
TABLE OF CASES CITED XXXV
l'age
United States v. Burr, 25
F. Cas. 30 689
United States v. Burr, 25 F.
Cas. 187 644
United States v. Butler, 297
U. S. 1 467,470
United States v. Carolcne
Products, 304 U. S. 144 719
United States v. Cohen Grocery,
255 U. S. 81 108
United States v. Cooper, 4
Dall. 341 615
United States v. Crowthers,
456 F. 2d 1074 97
United States v. Curtiss-
Wright Corp., 299 U. S.
304 643,646
United States v. Dardi, 330
F. 2d 316 747-748
United States v. Dietrich,
126 F. 671 522
United States v. Doe, 332 F.
Supp. 930 609-611,616
United States v. Doe, 451
F. 2d 466; 460 F. 2d 328 44
United States v. Doe, 455
F. 2d 753 609,
611-612,616,625,630
United States v. Drummond,
354 F. 2d 132 642
United States v. Egan, 408
U. S. 41 915-916
United States v. Empire
Packing, 174 F. 2d 16 219
United States v. Farrar, 38
F. 2d 515 696
United States v. Findley,
439 F. 2d 970 506
United States v. Gelbard,
443 F. 2d 837
United States v. Generes,
43
405 U. S. 93 330
United States v. George,
444 F. 2d 310
United States v. Grace
74
Estate-, 395 U. S. 316 147
United States v. Harriss,
347 U. S. 612 108
Page
United States v. Jackson,
390 u. s. 570 355-356, 406
United States v. Johnson,
419 F. 2d 56 511
United States v. Johnson,
319 U. S. 503 632, 742
United States v ..J ohnson,
383 U. S. 169 507-
516, 524, 526-532, 537-
540, 542,544,547,550,
553-555, 561-562, 617-
618, 621, 624--625, 631,
635-636, 660, 662-663
United States v ..J ones, 345
U. S. 377 531
United States v. Keogh, 391
F. 2d 138 806,808
United States v. Knox, 396 u. s. 77 505
United States v. Lovet.t, 328
U.S.303 394,453,523,573,589
United States v. Marvland
Savings-Share Ins. Corp.,
400 U.S. 4 719
United States v. Moreland,
258 U. S. 433 687
United States v. Norman,
391 F. 2d 212 697
United States v. O'Brien,
391 U.S. 367 101-102, 184, 190
United States v. Ogilvie
Hardware, 330 U. S. 709 161
United States v. O'Mallcy,
383 U.S. 627 132, 135-136, 138,
143, 156--157, 159,161
United States v. Powell, 307
F. 2d 821 133
United States v. Quinn, 141
F. Supp. 622 522
United States v. Raines, 362
U. S. 17 26,907
United States v. Reynolds,
449 F. 2d 1347 44
United States v. Reynolds,
345 U. S. 1 66,645, 738
United States Y. RobC'l, 389
U.S.258 186,597,718, 765,782
United States v. Rosenberg,
195 F. 2d 583 360-361
United States v. Rumely,
345 U. S. 41 647, 741
XXXVI TABLE OF CASES CITED
Page
United States v. Ryan, 402
U. S. 530 608
United States v. Sisson, 399
U. S. 267 506
United States v. Stone, 429
F. 2d 138 701
United States v. 37 Photographs,
402 U. S. 363 110
United States v. U. S. District
Court, 407 U. S.
297 46, 66, 915
United States v. Ventresca,
380 U. S. 102 738
United States v. Wilson, 7
Pet. 150 493
U. S. ex re!. Sec name of
real party in interest.
University of So. Miss. Civ.
Lib. Union v. University
of So. Miss., 452 F. 2d
564 194
Uphaus v. Wyman, 360 U.S.
72 635,647,716,720
Vitarelli v. Seaton, 359 U. S.
535 810
Wason, Ex parte, L. R. 4
Q. ll. 573 509,518,
539,562,623,658-659
Watkins v. United States,
354 U. S. 178 65,183,545,
610, 636, 649-650, 661,
700, 713, 715, 739-742
Weber v. Aetna. Casualty
Co., 406 U. S. 164 95
Weeks v. United States, 232
U.S. 383 00,68
Weems v. United States, 217
U. S. 349 241-242,
261, 264-282, 306, 309,
324-332, 343-344, 378,
383-384, 393-394, 407,
409-410, 419, 424--425,
429, 431-433, 451, 457
Whitehill v. Elkins, 389
U. S. 54 597, 718
Whitney v. California, 274
U. S. 357 773, 775--776, 780
Wieman v. Updegraff, 344
U.S.183 573,577,583,597, 718
Wilberding v. Miller, 90
Ohio St. 28 142
Pag.-.
Wilkerson v. Utah, 99 U. S.
130 258, 264-
266, 275--278, 284, 322,
329, 331, 377 380, 392,
407, 410, 421, 428, 451
Wilkinson v. United States,
365 u. s. 399 717
William~ v. District of Columbia,
136 U. S. App.
D. C. 56 905
Williams v. Florida, 399
U.S. 78 286
Williams v. Georgia, 349 u. s. 375 287
Williams v. New York, 337
U.S.241 344,394,414,440,452
Williams v. Rhodes, 393
U. S. 23 99, 101
Williamson v. Lee Optical,
348 U. S. 483 719
Williamson v. United States,
207 U. S. 425 521, 614-615
Williamson v. United States,
405 U. S. 1026 62
Willner v. Committee on
Character,373 U.S.96 574,590
Wilson, Ex parte, 114 U. S.
417 430
Wilson v. United States, 221
U. S. 361 632, 742
Wilson Estate v. Commissioner,
13 T. C. 869 133
Wilwording v. Swenson, 404
U. S. 249 586
Winston v. United States,
172 U.S. 303 339,402
Winters v. New York, 333 u. s. 507 109, 705, 741
Wirta v. Alameda-Contra
Costa Transit Dist., 68
Cal. 2d 51 97, 100
Wisconsin v. Constantineau,
400 U. S. 433 573, 584
Witherspoon v. Illinois, 391
U. S. 510 290,
299, 315, 330, 358, 361,
381, 388-389, 398, 426,
435, 440-441, 788, 800
Wong Sun v. United States,
371 U. S. 471 63
TABLE OF CASES CIT.ED XXXVII
Page
Wood v. Georgia, 370 U . R.
375 95, 6R7, 701
Wright v. ::Mr::\fann, 387 F.
2d 519 384
Yate/' v. United St:ttl"', 354
U. S. 298 189,202
Yirk Wo v. Hopkins, ll8
U. S. 356 257,390
Png~
Younger v. Harris, 401
U. S. 37 707
Youngstown Shfft & Tube
v. Sawyer, 343 U.S. 579 21
Zemel V . Rusk, 381, e. S.
1 684,728,764, 7R2
Zwirkler v. Koota, 389 l'. S.
241 114, 741

TABLE OF STATUTES CITED
(A) STATun;s oF THE UNITED STATES
Page
1790, Apr. 30, c. 9, 1 Stat.
112, § 6 ........... 665
§§ 14, 16-18 ...... 238
§ 21 ............ 501
1831, Mar. 2, c. 99, 4 Stat.
487 .............. 665
1853, Feb. 26, c. 81, 10 Stat.
170, § 6 ........... 501
1864, June 11, c. 119, 13
Stat. 123. . . . . . . . . . 501
1875, Mar. 3, c. 141, 18 Stat.
477 .............. 753
1882, Aug. 3, c. 376, 22 Stat.
214 .............. 75::l
1887, Feb. 4, c. 104, 24 Stat.
379, as amended,
§§ 1, 3, 5 ......... 811
1890, July 2, c. 647, 26 Stat.
209, as amended .... 665
1903, Mar. 3, c. 1012, 32
Stat. 1213, § 2 ..... 753
1909, Mar. 4, c. 321, 35
Stat. 1088, § 146 ... 665
1918, Oct. 16, c. 186, 40
Stat. 1012 ......... 753
1920, June 10, c. 285, 41 Stat.
1063, as amended,
§ 307 . . . . . . . . . . . . . 41
1921, Nov. 23, c. 136, 42 Stat.
227, § 402 .......... 125
1932, Mar. 23, c. 90, 47 Stat.
70, as amended. . . . 204
June 6, c. 209, 47 Stat.
169 .............. 125
1934, June 6, c. 404, 48 Stat.
881, as amended,
§ 21 . . . . . . . . . . . . . . 41
June 19, c. 652, 48 Stat.
1064, as amended,
§ 409 . . . . . . . . . . . . . 41
Page
1935, July 5, c. 372, 49 Stat.
449, as amended. . . 665
§ 1 et seq. . . . . . . . 564
§2 ............. 92
Aug. 23, c. 623, 49 St.at.
731, § 15.......... 41
Aug. 26, c. 687, 49 Stat.
803, as amended,
§§ 18, 213......... 41
1936, June 29, c. 858, 49 Stat.
1985 as amended,
§ 214 . . . . . . . . . . . . . 41
.June 30, c. 881, 49 Stat.
2036, as amended,
§§ 1-11 . . .. . . . . .. . 41
1938, June 21, c. 556, 52 Stat.
821, as amended,
§ 14 . . . . . . . . . . . . . . 41
June 25, c. 676, 52 Stat.
1060, as amended. 41, 665
1940, June 28, c. 439, 54 Stat.
670, Tit. II ....... 753
Sept. 18, c. 722, 54 Stat.
898, §§ 4-5, 7 ...... 811
1947, ,Tune 23, c. 120, 61 Stat.
136, § 101 et seq. 92, 564
July 26, c. 343, 61 Stat.
495, as amended,
§202 ............ .
1948, ,Tune 25, c. 646, 62 Stat.
869 ............... 204
1949, Aug. 10, c. 412, 63 Stat.
578, § 5. . . . . . . . . . . . 1
1950, Sept. 8, c. 932, 64 Stat.
798, as amended,
§ 705 . . . . . . . . . . . . . 41
Sept. 23, r. 1024, 64
Stat.. 987 ......... 753
1952, .Tune 27, c. 477, 66 Stat.
163, §§ 101, 212 .... 753
XXXIX
XL TABLE OF STATUTES CITED
Pnge
1958, Aug. 23, Pub. L. 85-
726, 72 St.at. 731, as
amended, § 902. . . . . 238
1961, Sept. 5, Pub. L. 87-197,
75 Stat. 466 , § 1 . .. 238
1964, Oct. 3, Pub. L. 88-619,
78 Stat. 995, § 10 ... 204
1965 , Aug. 28, Pub. L. 89-
141 , 79 Stat. 580,
§ 1 . . . . . . . . . . . . . . . 238
1968, .Tune 19, Pub. L. 90-
351, 82 Stat. 197,
Tit. III. . . . . . . . . . . . 41
1970, Oct. 15, Pub. L. 91-
452, 84 8tat. 922,
§§ 301, 701-702. . . . 41
§ 1102 . . . . . . . . . . 238
1971, Jan. 2, Pub. L. 91-644,
84 Stat. 1880, § 15. 238
Revised Statutes.
§§ 104, 1782 ............ 501
§ 1979 ............ 92,564
U.S. Code.
Title 2, § 194 ......... 501
Title 5, § 552. . . . . . . . . 606
Title 7, § 511n........ 41
Title 8, §§ 1101, 1182 .. 753
Tit.le 10,
§§ 141, 331-334 ....
§§ 885, 890, 894, 899,
901,904,906,913,
918, 920 ......... 238
Title 15, §§ 78u, 79r,
717m . . . . . . . . . . . . . . 41
Title 16, § 825f. . . . . . . . 41
Title 18 (1964 ed.),
§ 281 .............. 501
Title 18 ( 1964 ed., Supp.
V), § 3731. ......... 501
Title 18,
§§ 2, 201, 1001, 3731. 501
§§ 4, 231, 871, 1341,
2101 ........... 665
§§ 34, 351, 794, 844,
1992, 2031, 2381. 238
§ 371 ........ 501,606
§§ 401, 2510-2520,
3504 .. . . . . . . . .. 41
§§ 592-593, 1384-
1385 . . . . . . . . . . . 1
§§ 641, 792-799,2071,
3500 ........... 606
Page
U. S. Cod('-ContinuC'd.
Title 18-Continued.
§ 659 ............ 224
§ 1751 ........ 238, 665
Titlr 26,
§§ 162,531-537,2036. 125
§ 7604 . . . . . . . . . . . 41
Title 28 (1958 ed.),
§ 1783 ............. 204
Title 28,
§ 510 ............ 753
§ 1783 ........... 204
§ 1826 . .. . . . . . . . . 41
§ 2201 . . . . . . . . . . . 92
Title 29,
§ 151 et seq ...... 564
§ 152 . . . . . . . . . . . . 92
Title41,§§35-45 ...... 41
Title 42, §1983 .... 92,564
Title 46, § 1124........ 41
Title 47, § 409........ 41
Title 49,
§§ 1, 3, 5 .......... 811
§ 1472 ........... 238
Title 50 App., § 2155.. 41
Alien Registration Act of
1940 ................... 753
Communications Act of
1934 . . . . . .. . . . . . . .. . . . . 41
Contempt of Court Act .... 665
Crimes Act of 1970. 238,501,665
Defcnse Production Act of
1950 . . . . . . . . . . . . . . . . . . . 41
Electric Utility Companies
Act . . . . . . . . . . . . . . . . . . . 41
Fair Labor Standards Act of
1938 ................ 41,665
Federal Aviation Act of
1958 ................... 238
Freedom of In format ion
Art .................... 606
[mmigration and Nationality
Act of 1952 ............ 753
[ntrrnal Revenur Codr of
1939, § 811. . . . . . . . . . . . . . 125
[nternal Revenue Code of
1954,
§§ 162, 531-537, 2036 ... 125
§ 7604 . . . . . . . . . . . . . . . 41
[nternal Security Act of
1950 ................... 753
TABLE OF STATUTES CITED XLI
PagP.
Interstate Commerce Act. . 811
Jencks Act ................ 606
Labor Management RPlations
Act, 1947 ...... 92,564
Merchant Marine Act, 1936. 41
National Labor Relations
Act . . . . . . . . . . . . 92, 564, 665
National Sccuritv Act of
1947 ........ ~......... 1
Natural Gas Act. . . . . . . . . . 41
N orris-LaGuardia Act. . . . . . 204
Omnibus Crime Control Act
of 1970 ................. 238
Pag"
Omnibus Crime Control and
Safe Streets Act of 1968.. 41
Organized Crime Control
Act of 1970 ......... 41, 238
Public Utility Holding Company
Act of 1935. . . . . . . 41
Revenue Acts of 1921, 1932. 125
Securities Exchange Act of
1934 . . . . . . . . . . . . . . . . . . . 41
Sherman Act. . . . . . . . . . . . . . 665
Tobacco Inspection Act. . . . 41
Uniform Code of Military
J usticc . . . . . . . . . . . . . . . . . 238
Walsh-Healey Act... . . . . . . 41
(B) CoxsTITUTIONS AND STATUTES oF THE STA'rEs
Alabama.
Code, Tit. 7, § 370 .... 665
Code, Tit. 42, § 12 .... 471
Alaska.
Stat. § 09.25.150 ....... 665
Stat. § 33.15.220 ....... 471
Arizona.
Rev. Stat. Ann. § 12-
2237 ............... 665
Rev. Stat. Ann. § 31-
417 ............... 471
Arkansas.
Stat. Ann.§ 43-917 .... 665
Stat. Ann. § 43-2810 ... 471
California.
Evid. Code § 1070 .... 665
Delaware.
1776 Declaration of
Rights ............. 238
Code Ann., Tit. 11,
§ 4352 ............. 471
Florida.
Stat. Ann. § 947.23 .... 471
Georgia.
Code Ann. §§ 26- 1005,
26-1101, 26-1302, 26-
2001 ............... 238
Code Ann. § 77-519 .... 471
Hawaii.
Rev. Stat. § 353-66 .... 471
Idaho.
Code §§ 20- 229, 20--
229A .............. 471
Illinois.
Ann. Stat., c. 108,
§§ 204, 207 .......... 471
Indiana.
Ann. Stat. §2-1733 ... 665
Ann. Stat. § 13-1611 ... 471
Iowa.
Code §§ 247.5, 247.9 ... 471
I<ansas.
Stat. Ann. § 22-3721 ... 471
Kentucky.
Const., §§ 1, 2, 8 ...... 665
Rev. Stat. §§ 218.010,
218.210, 421.100 ..... 665
Rev. Stat. §439.330 ... 471
Louisiana.
Rev. Stat. Ann. § 15:
574.9 .............. 471
Rev. Stat. Ann. §§ 45:
1451-45:1454 ...... 665
Maine.
Rev. Stat. Ann., Tit. 34,
§ 1675 ............. 471
Maryland.
1776 Declaration of
Rights ............. 238
Art. 8 ............ .. .. 501
Ann. Code, Art. 35, § 2. 665
Ann. Code, Art. 41,
§ 117 .............. 471
?\1assachusetts.
1780 Declaration of
Rights ............. 238
Art. 21 .... . .......... 501
Gen. Laws Ann., c. 231,
§ 111; c. 278, § 30A .. 665
Gen. Laws Ann., c. 265,
§ 2 ................ 238
XLir TABLE OF STATUTES CITED
Page
Michigan.
Comp. Laws §§ 767.Sa,
791.240a ....... 471,665
Stat. Ann. §§ 28.945,
28.2310 ........ 471,665
Minnesota.
Laws 1911, c. 387 ..... 238
Stat. § 609.10 .......... 238
Mississippi.
Code Ann. § 4004---13 .. 471
Missouri.
Ann. Stat. § 549.265 ... 471
Montana.
Rev. Codes Ann. § 93-
601-2 .............. 665
Rev. Codes Ann. §§ 94---
9835 I 94---9838 • , • , , , , 4 71
Nevada.
Rev. Stat. § 49.275 .... 665
New Hampshire.
1783 Bill of Rights. . . . 238
Const. of 1784, Art. 30. 501
Rev. Stat. Ann. § 607:
46 ................. 471
New .Jersey.
Rev. Stat. §§2A: 84A-
21, 2A:84A-29 ...... 665
Rev. Stat. §2A:170--29. 901
New Mexico.
Stat. Ann. § 20--1-12.1. 665
Stat. Ann. § 40A-29-
2.1 . ... ............ 238
Stat. Ann. § 41- 17-28. 471
New York.
Civ. Rights Law § 79-h. 665
Correc. Law § 212 .... 471
Penal Law §§ 5.05, 70.10,
1941 ............... 204
Penal Law § 125.30 .... 238
North Dakota.
Cent. Code §§ 12--07--01,
12-27-13 ........... 238
Cent. Code § 12-59-15. 471
Page
Ohio.
Rev. Code Ann.
§§ 1701.33, 1701.95 . . 125
Rev. Code Ann.
§ 2739.12 . . . . . . . . . . . 665
Rev. Code Ann.
§§ 2901.09-2901.10 .. 238
Oklahoma.
Stat. Ann., Tit. 21,
§ 906 .............. 901
Pennsylvania.
Stat. 1794, c. 1777 .... 238
Stat. Ann., Tit. 28,
§ 330 .............. 665
Stat. Ann., Tit. 61,
§ 331.21a ........... 471
Rhode Island.
Gen. Laws Ann. § 11-
23-2 ............... 238
Tennessee.
Laws 1837-1838, c. 29. 238
Code Ann. § 39-2402. . 204
Code Ann. § 40--3619 ... 471
Texas.
Code Crim. Proc., Art.
42.12, § 22 .......... 471
Penal Code, Art. 1189. . 238
Vermont.
Stat. Ann., Tit. 13,
§ 2303 ............. 238
Stat. Ann., Tit. 28,
§ 1081 ............. 471
Virginia.
1776 Declaration of
Rights, § 9 .......... 238
Wa8hington.
Rev. Code §§ 9.95.120-
9.95.126 ............ 471
West Virginia.
Code Ann. § 62-12-19 .. 471
Wisconsin.
Stat. § 37.31. ......... 564
Stat. § 944.21. . . . . . . . . 229
(C) FOREIGN STATUTES
Canada.
1967-1968 Stats., 16 &
17 Eliz. 2, c. 15 .... 238
England.
3 Edw. 1, c. 9 .... . ... 665
13 Edw. I, c. 6 ........ 665
England-Continued.
5 & 6 Edw. 6, c. 11 . . . . 665
1 W. & M., Sess. 2,
c. 2 ....... . 238,501, 606
3 W. & M., c. 9, § 1. . . 238
7 & 8 Gco. 4, c. 27. . . . 238
TABLE OF STATUTES CITED XLilI
England-Continued.
l'nge
3 & 4 Viet., c. 9 ...... 606
50 & 51 Viet., e. 55, § . 665
1965, 2 Pub. Gen. Acts,
c. 71. . . . . . . . . . . . . . . 238
Magna Carta ......... 238
Murder (Abolition of
Death Penalty) Act
1965 . . . . . . . . . . . . . . . 238
Page
England-Continued.
Parliamentary Papers
Act of 1840 ......... 606
Sheriffs Act of 1887. . . 665
Statute of Westminster
First . . . . . . . . . . . . . . 665
Statute of Westminster
Second . . . . . . . . . . . . . 665
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STAT~
AT
OCTOBER TERM, 1971
LAIRD, SECRETARY OF DEFENSE, ET AL. v.
TATUM ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 71-288. Argued March 27, 1972-Decided June 26, 1972
Prior to its being called upon in 1967 to assist local authorities in
quelling civil disorders in Detroit, Michigan, the Department of the
Army had developed only a general contingency plan in connection
with its limited domestic mission under 10 U. S. C. § 331. In
response to the Army's experience in the various civil disorders it
was called upon to help control during 1967 and 1968, Army Intelligence
established a data-gathering system, which respondents
describe as involving the "surveillance of lawful civilian political
activity." Held: Respondents' claim that their First Amendment
rights are chilled, due to the mere existence of this data-gathering
system, does not constitute a justiciable controversy on the basis
of the record in this case, disclosing as it does no showing of objective
harm or thrnat of specific future harm. Pp. 3-16.
144 U. S. App. D. C. 72, 444 F. 2d 947, reversed.
BURGER, C. J., delivered the opinion of the Court, in which WHITE,
BLACKl\IUN, PowELL, and REHNQUIST, JJ., joined. DouGLAS, J.,
filed a dissenting opinion in which .MARSHALL, .T., joined, post,
p. 16. BREKNAN, J., filed a dissenting opinion in which STEWART
and l\1ARSHALL1 JJ., joined, post, p. 38.
2 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
Solicitor General Griswold argued the cause for petitioners.
With him on the briefs were Assistant Attorney
General Mardian and Robert L. Keuch.
Frank Askin argued the cause for respondents. With
him on the brief was Melvin L. Wulf.
Sam J. Ervin, Jr., argued the cause for the Unitarian
Uuiversalist Assn. et al. as am.ici curiae urging affirmance.
With him on the brief was Lawrence M. Baslcir.
Burlce Marshall and Arthur R. Miller filed a brief for
a Group of Former Army Intelligence Agents as amici
curiae urging affirmance.
MR. CHIEF JusTICE BURGER delivered the opm10n
of the Court.
Respondents brought this class action in the District
Court seeking declaratory and injunctive relief on their
claim that their rights were being invaded by the Department
of the Army's a11eged "surveillance of lawful
and peaceful civilian political activity." The petitioners
in response described the activity as "gathering
by lawful means ... [and] maintaining and using in
their intelligence activities ... information relating to
potential or actual civil disturbances [or J street demonstrations."
In connection with respondents' motion
for a preliminary injunction and petitioners' motion
to dismiss the complaint, both parties filed a number
of affidavits with the District Court and presented their
oral arguments at a hearing on the two motions. On
the basis of the pleadings, 1 the affidavits before the court,
and the oral arguments advanced at the hearing, the
1 The complaint filed in the District Court candidly asserted that
its factual allegations were based on a. magazine article: "Thr information
contained in the foregoing paragraphs numbC'rcd fi,·e thro11gh
thirteen Lof the complaint] was published in the January 19i0 is, uc
of the magazine The Washington M onthly . . .. "
LAIRD v. TATUNI 3
Opinion of the Court
District Court granted petitioners' motion to dismiss,
holding that there was no justiciable claim for relief.
On appeal, a divided Court of Appeals reversed and
ordered the case remanded for further proceedings. We
granted certiorari to consider whether, as the Court of
Appeals held, respondents presented a justiciable controversy
in complaining of a "chilling" effect on the exercise
of their First Amendment rights where such effect
is allegedly caused, not by any "specific action of the
Army against them, [but] only [by] the existence and
operation of the intelligence gathering and distributing
system, which is confined to the Army and related civilian
investigative agencies." 144 U. S. App. D. C. 72, 78,
444 F. 2d 947, 953. We reverse.
(1)
There is in the record a considerable amount of background
information regarding the activities of which
respondents complained; this information is set out primarily
in the affidavits that were filed by the parties
in connect-ion with the District Court's consideration
of respondents' motion for a preliminary injunction and
petitioners' motion to dismiss. See Fed. Rule Civ. Proc.
12(b). A brief review of that information is helpful to
an understanding of the issues.
The President is authorized by 10 U. S. C. § 331 2
to make use of the armed forces to quell insurrection
'""Whenever t.here is an insurrection in any State against its
government, the President may, upon the request of its legislature or
of its governor if the legislature cannot be convened, call into Fed-
<'ral service such of the militia of the other States, in thr number
reqnest<'d by that State, and use such of thr armed forces, as hr
considcr8 necessary to suppress the insurrection."
The constitutionality of this statute is not at issue here; the
specific authorization of such use of federal armed forces, in addition
to state militia, appears to have bern enacted pursuant to Art.
IV, § 4, of the Constitution, which provides that "[t]he United
4 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
and other domestic violence if and when the conditions
described in that section obtain within one of the States.
Pursuant to those provisions, President Johnson ordered
States ... shall protect each of [the individual States] ... on Appliration
of the Legislature, or of the Executive (when the Legislature
cannot be convened) against domestic Violence."
In describing the requirement of 10 U. S. C. § 331 for the use
of federal troops to quell domestic disorders, Attorney General
Ramsey Clark made the following statements in a letter sent to
all state governors on August 7, 196 7:
"There are thrPe basic prerequisites to the use of Fcdcntl troops
in a state in the event of domestic violence:
"(1) That a situation of srrious 'domestic violence' exists within
the statt'. While this conclusion should be supported with a statrment
of factual details to the extC'nt feasible under the circ11mstanres,
there is no prcscribC'd wording.
"(2) That such violence cannot be brought under control by the
law C'uforcement. resources arnilable to the governor, indnding local
and St-ate 1101ice forces and the National Guard. The judgment
rcquired here is that there is a definite need for the assistance of
Federal troops, taking into account the rrmaining time needed to
move them into action at the scene of violence.
"(a) Tha.t the legislature or the govrrnor requests the President
to employ the armed forces to bring the violencr under control. The
element of request by the governor of a Stat.r is essential if the
l<>gislature cannot be convened. It may br difficult in the context
of 11rban rioting, such as we have se<>n this summer, to convrne thr
legi~latme.
"Tho.•e thrre elements should be exprr~srd in a written romm11nirntion
to thr Prrsident, which of course may be a tekgrarn, to support
his is~uan('C of a proclamation under 10 U. S. C. § :3:34 and
commitment of troops to action. In ease of extrrm(' rmergency, rr-
<'<'ipt of a written request will not b(' a prerequisitr to l're~ic!rntial
artion. Howevcr, sinrr it takes sev<>ral hours to al('ft and movr
Fc·deral troops, the f<'w minut('S 11redrcl to writr aud dispat<'h a
trlcgram are not likely to cause a11y d('lay.
"Upon rrreiving the rrquest from a governor, tlw Presidrnt, 1mder
the terms of the stRtute and the historic prnctier, must ('xrn·i,i(' hi~
own judgmcnt as to whether Federal troops will be H'11t, and as
t.o s11ch qu('stions as timing, size of the fore<', and fedrr,iliz:ltion of
the :National Guard.
'·Preliminary ~tc>ps, such as alerting the troops, can bc> taken by
LAIRD v. TATUM 5
Opinion of the Court
federal troops to assist local authorities at the time
of the civil disorders in Detroit, Michigan, in the summer
of 1967 and during the disturbances that followed
the assassination of Dr. Martin Luther King. Prior
to the Detroit disorders, the Army had a general contingency
plan for providing such assistance to local
authorities, but the 1967 experience led Army authorities
to believe that more attention should be given to
such preparatory planning. The data-gathering system
here involved is said to have been established in connection
with the development of more detailed and specific
contingency planning designed to permit the Army, when
called upon to assist local authorities, to be able to
respond effectively with a minimum of force. As the
Court of Appeals observed,
"In performing this type function the Army is
essentially a police force or the back-up of a local
police force. To quell disturbances or to prevent
further disturbances the Army needs the same tools
and, most importantly, the same information to
which local police forces have access. Since the
Army is sent into territory almost invariably unfamiliar
to most soldiers and their commanders,
their need for information is likely to be greater
than that of the hometown policeman.
"No logical argument can be made for compelling
the military to use blind force. When force is emiho
Federal government upon oral communications and prior to
1ho govt'rnor's determination that the violence cannot be brought
under control without the aid of Fedrral forc es . Even such preliminary
steps, however, represent a most serious departure from
our t.raditions of local responsibility for law enforcement. They
should not be requested until there i~ a sub~tnntial likelihood thnt
1 he Frdnal forrps will be nrPded."
This analysis of Attorney General Clark ~11ggr,;ts t he im)lortnnre
of the rwed for information to guide thP int{'lligr11t. usr of military
forees and to avoid "overkill."
(i OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
p!oyed it should be intelligently directed, and this
depends upon having reliable information-in time.
As Chief Justice John Marshall said of Washington,
'A general must be governed by his intelligence
and must regulate his measures by his information.
It is his duty to obtain correct information .... '
So we take it as undeniable that the military, i. e.,
the Army, need a certain amount of information in
order to perform their constitutional and statutory
missions." 144 e. S. App. D. C., at 77-78, 444 F.
2d, at 952-053 ( footnotes omitted).
The syst~m put into operation as a result of the Army's
196 7 experience consisted essentially of the collectioll
of information about public activities that were thought
to have at least some potential for civil disorder, the
reporting of that information to Army Intelligence headquarters
at Fort Holabird, Maryland, the dissemination
of these reports from headquarters to major Army posts
around the country, and the storage of the reported
information in a computer data bank located at Fort
Holabird. The information itself was collected by a
variety of means, but it is significant that the principal
sources of information were the news media and publications
in general circulation. Some of the information
came from Army Intelligence agents who attended
meetings that were open to the public and who wrote
field reports describing the meetings, giving such data
as the name of the sponsoring organization, the identity
of speakers, the approximate number of persons in attendance,
and an indication of whether any disorder
occurred. And still other information was provided to
the Army by civilian law enforcement agencies.
The material filed by the Government in the District
Court reveals that Army Intelligence has field offices
in various parts of the country; these offices arc staffed
in the aggregate with approximately 1,000 agents, 94%
LAIRD v. TATUM 7
1 Opinion of the Court
of whose time 3 is devoted to the organization's principal
mission,4 which is unrelated to the domestic surveillance
system here involved.
By early 1970 Congress became concerned with the
scope of the Army's domestic surveillance system; hearings
on the matter were held before the Subcommittee
on Constitutional Rights of the Senate Committee on
the Judiciary. Meanwhile, the Army, in the course of
a review of the system, ordered a significant reduction
in its scope. For example, information referred to in
the complaint as the "blacklist" and the records in the
computer data bank at Fort Holabird were found unnecessary
and were destroyed, along with other related
records. One copy of all the material relevant to the
instant suit was retained, however, because of the pendency
of this litigation. The review leading to the destruction
of these records was said at the time the
District Court ruled on petitioners' motion to dismiss
to be a "continuing" one (App. 82), and the Army's
policies at that time were represented as follo,vs in a
letter from the Under Secretary of the Army to Senator
Sam J. Ervin, Chairman of the Senate Subcommittee
on Constitutional Rights:
"[R] eports concerning civil disturbances will be
limited to matters of immediate concern to the
Army-that is, reports concerning outbreaks of violence
or incidents with a high potential for violence
beyond the capability of state and local police and
3 Translated in terms of personnel, this pncf'ntagP figure- sug~e~ts
that the total intPlligrnrr oprration ronrerned with potrntial rivil disorders
hardly merits dC'Scription as "massive," as one of the dissents
cha rncterizes it.
4 That. principal mission was described in one of the documrnts
filed with the District Court as the conducting of "investigations to
drtrrrnine whether uniformed members of tlw Army, ciYilian employees
r of the Armyl and contractors' employees should be granted
access to classified information." App. 7G-77.
8 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
the National Guard to control. These reports will
be collected by liaison with other Government agencies
and reported by teletype to the Intelligence
Command. They will not be placed in a computer
. . . . These reports are destroyed 60 days
after publication or 60 days after the end of the
disturbance. This limited reporting system will ensure
that the Army is prepared to respond to whatever
directions the President may issue in civil
disturbance situations and without 'watchi11g' the
lawful activities of civilians." (App. 80.)
In briefs for petitioners filed with this Court, the
Solicitor General has called our attention to certain directives
issued by the Army and the Department of
Defense subsequent to the District Court's dismissal
of the action; these directives indicate that the Army's
review of the needs of its domestic intelligence activities
has indeed been a continuing one and that those
activities have since been significantly reduced.
(2)
The District Court held a combined hearing on respondents'
motion for a preliminary injunction and petitioners'
motion for dismissal and thereafter announced
its holding that respondents had failed to state a claim
upon which relief could be granted. It was the view
of the District Court that respondents failed to allege
any action on the part of the Army that was unlawful
in itself and further failed to allege any injury or any
realistic threats to their rights growing out of the Army's
actions.5
"In the course of the oral argument, thr District Judgr sought
clarification from respondents' counsPl as to the nature> of th<'
threats rwrccivC'd by respondents; he askPd what exactly it was in
the Army's activities that tended to chill respondents nnd othc>rs in
LAIRD v. TATUM 9
Opinion of the Court
In reversing, the Court of Appeals noted that respondents
"have some difficulty in establishing visible injury":
"[They] freely admit that they complain of no specific
action of the Army against them . . . . There is
no evidence of illegal or unlawful surveillance activities.
We are not cited to any clandestine intrusion
by a military agent. So far as is yet shown, the
information gathered is nothing more than a good
newspaper reporter would be able to gather by attendance
at public meetings and the clipping of
articles from publications available on any newsstand."
144 U. S. App. D. C., at 78, 444 F. 2d, at 953.
The court took note of petitioners' argument "that
nothing [ detrimental to respondents] has been done,
that nothing is contemplated to be done, and even if
some action by the Army against [respondents] were
possibly foreseeable, such would not present a presently
justiciable controversy." With respect to this argument,
the Court of Appeals had this to say:
"This position of the [petitioners] does not accord
full measure to the rather unique argument advanced
by appellants [respondents]. While [respondents]
do indeed argue that in the future it is possible that
the exercise of their constitutional rights. Counsrl responded that
it was
"precisely the threat in this case that in some future civil diwrder
of some kind. the Army is going to come in with its list of troublemakers
... and go rounding up people and putting them in military
prisons somewhere." (Bmphasis added.)
To this tht> conrt responded that "we still sit here with thr writ of
habeas corpus." At another point, counsel for respondrnts took a
somewhat different approach in arguing that
"we're not quite sure exactly what they have in mind and that is
precisely what causes the chill, the chilling effect." (Emrhnsis
added.)
10 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
information relating to matters far beyond the
responsibilities of the military may be misused by
the military to the detriment of these civilian
[respondents], yet [respondents] do not attempt to
establish this as a definitely foreseeable event, or
to base their complaint on this ground. Rather,
[respondents] contend that the present existence of
this system of gathering and distributing information,
allegedly far beyond the mission requirements
of the Army, constitutes an impermissible burden
on rr espondents] and other persons similarly situated
which exercises a present inhibiting effect on their
full expression and utilization of their First Amendment
rights .... " Id., at 79, 444 F. 2d, at 954.
(Emphasis in original.)
Our examination of the record satisfies us that the
Court of Appeals properly identified the issue presented,
namely, whether the jurisdiction of a federal court may
be invoked by a complainant who alleges that the exercise
of his First Amendment rights is being chilled
by the mere existence, without more, of a governmental
investigative and data-gathering activity that is alleged
to be broader in scope than is reasonably necessary for
the accomplishment of a valid governmental purpose.
We conclude, however, that, having properly identified
the issue, the Court of Appeals decided that issue
incorrectly. ,i
"Indeed, the Court of Appeals noted that it had reached a different
conclusion when presented with a virtually identical issue
in another of its recently decided cas<>s, Davis v. !chord, 143 U. S.
App. D. C. 183, 442 F. 2d 1207 ( 1970). The plaintiffs in Davis
were at.tacking the constitutionality of the House of Representatives
Huie under which the House Committe<> on Internal Security conducts
investigations and maintains files described by the plaintiffs
as a "politicnl blacklist." The court noted that any chilling cffert
to which the plaintiffs were subject arose from the mere existence
LAIRD v. TATU.:-.1 11
1 Opinion of the Court
In recent years this Court has found in a number of
cases that constitutional violations may arise from the
deterrent, or "chilling," effect of governmental regulations
that fall short of a direct prohibition against the
exercise of First Amendment rights. E. g., Baird v. State
Bar of Arizona, 401 U. S. 1 ( 1971); Keyishian v. Board
of Regents, 385 U. S. 589 ( 1967); Lamont v. Postmaster
General, 381 U. S. 301 ( 1965) ; Baggett v. Bullitt, 377
U. S. 360 (1964). In none of these cases, however,
did the chilling effect arise merely from the individual's
knowledge that a governmental agency was engaged in
certain activities or from the individual's concomitant
fear that, armed with the fruits of those activities, the
agency might in the future take some other and additional
action detrimental to that individual. Rather,
in each of these cases, the challenged exercise of governmental
power was regulatory, proscriptive, or compulsory
in nature, and the complainant was either presently or
prospectively subject to the regulations, proscriptions,
or compulsions that he was challenging.
For example, the petitioner in Baird v. State Bar of
Arizona had been denied admission to the bar solely
because of her refusal to answer a question regarding
the organizations with which she had been associated in
the past. In announcing the judgment of the Court,
of the Committc>e and its files and thr me-re possibility of the rni,use
of those files. ln affirming the dismissal of the complaint, the court
concluded that allrgations of such a chilling effect could not be
rlrvatt'd to a justiciable rlaim merely by allrging as well that the
('hallengrd House Ilule was overly broad and vague.
In deciding the case presently under review, the Court of Appeals
distinguished Davis on the ground that the differrnc<' in thr sonrre
of the chill in the two cases- a House CommittP<' in Davis :rnd the
Army in the instant rafe-was controlling. We cannot agree that
the jurisdictional q11rstion with whirh we arr hPrc c>on<·rnl('d is to
be resolved on thr basis of the identity of the parties named as
defendants in the complaint.
12 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
Mr. Justice Black said that "a State may not inquire
about a man's views or associations solely for the purpose
of withholding a right or benefit because of what
he believes." 401 U. S., at 7. Some of the teachers
who were the complainants in Keyi.shian v. Board of
Regents had been discharged from employment by the
State, and the others were threatened with such discharge,
because of their political acts or associations.
The Court concluded that the State's "complicated and
intricate scheme" of laws and regulations relating to
teacher loyalty could not ,vithstand constitutional scrutiny;
it was not permissible to inhibit First Amendment
expression by forcing a teacher to "guess what conduct
or utterance" might be in violation of that complex
regulatory scheme and might thereby "lose him his
position." 385 U. S., at 604. Lamont v. Postmaster
General dealt with a governmental regulation requiring
private individuals to make a special written request
to the Post Office for delivery of each individual mailing
of certain kinds of political literature addressed to them.
In declaring the regulation invalid, the Court said: "The
addressee carries an affirmative obligation which we do
not think the Government may impose on him." 381
U. S., at 307. Baggett v. Bullitt dealt with a requirement
that an oath of vague and uncertain meaning be
taken as a condition of employment by a governmental
agency. The Court said: "Those with a conscientious
regard for what they solemnly swea.r or affirm, sensitive
to the perils posed by the oath's indefinite language,
avoid the risk of loss of employment, and perhaps profession,
only by restricting their conduct to that which
is unquestionably safe. Free speech may not be so inhibited."
377 U. S., at 372.
The decisions in these cases fully recognize that governmental
action may be subject to constitutional challenge
even though it has only an indirect effect on the
LAIRD v. TATUM 13
1 Opinion of the Court
exercise of First Amendment rights. At the same time,
however, these decisions have in no way eroded the
"established principle that to entitle a private individual
to invoke the judicial power to determine
the validity of executive or legislative action he
must show that he has sustained or is immediately
in danger of sustaining a direct injury as the result
of that action .... " Ex parte Levitt, 302 U. S.
633, 634 (1937).
The respondents do not meet this test; their claim, simply
stated, is that they disagree with the judgments made
by the Executive Branch with respect to the type and
amount of information the Army needs and that the
very existence of the Army's data-gathering system produces
a constitutionally impermissible chilling effect upon
the exercise of their First Amendment rights. That
alleged "chilling" effect may perhaps be seen as arising
from respondents' very perception of the system as inappropriate
to the Army's role under our form of government,
or as arising from respondents' beliefs that it
is inherently dangerous for the military to be concerned
with activities in the civilian sector, or as arising from
respondents' less generalized yet speculative apprehensiveness
that the Army may at some future date misuse
the information in some way that would cause direct
harm to respondents.7 Allegations of a subjective "chill"
7 Not only have respondents left somewhat unrlear the precise
connection between the mere existence of the challenged system
and their own alleged chill, but they have also cast considerable
doubt on whether they themselves are in fact suffering from any
such chill. .Judge MacKinnon took cogent note of this difficulty
in dissenting from the Court of Appeals' judgment, rendered as it
was "on the facts of the case which emerge from tlw ple:1dings.
affidavits and the admissions made to the trial court." 144 U. S.
App. D. C., at 84, 444 F. 2d, at 959. At the oral argument before
the District Court, counsel for respondents admitted that his rlients
14 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
are not an adequate substitute for a claim of specific
present objective harm or a threat of specific future
harm; "the federal courts established pursuant to
Article III of the Constitution do not render advisory
opinions." United Public Workers v. Mitchell, 330 U.S.
75, 89 (1947).
Stripped to its essentials, what respondents appear to
be seeking is a broad-scale investigation, conducted by
themselves as private parties armed with the subpoena
power of a federal district court and the power of crossexamination,
to probe into the Army's intelligencegathering
activities, with the district court determining
at the conclusion of that investigation the extent
to which those activities may or may not be appropriate
to the Army's mission. The following excerpt from the
opinion of the Court of Appeals suggests the broad sweep
implicit in its holding:
"Apparently in the judgment of the civilian head
of the Army not everything being done in the operation
of this intelligence system was necessary to
the performance of the military mission. If the
Secretary of the Army can formulate and implement
such judgment based on facts within his Dewrrc
"not people, obviously, who are cowe<l and chilled"; indred,
they were quite willing "to open themselves up to publir inve,;tigation
and public scrutiny." But, counsel arg11ed, these re~pondn1ts
must "represent millions of Americans not nearly as forward [andJ
courageous" as themselves. It was Judge l\focKi1rnon's view that
this conce~sion "constitutes a basic denial of prnct.ically their wholf'
case." Ibid. Even assuming a justiciable controversy, if respondents
thrms(•lves art> not chilled, but seek only to represent those
"millions" whom they believe are so chilled, respondents dearly
hck that "personal stake in the outcome of the controversy" e~scntial
to standing. Baker v. Carr, 369 U.S. 186, 204 (1962). As thr
Court recently observed in Moose Lodge No. 107 v. Irvis, 40i U. S.
163, 16G, a litigant "has standing to seek redress for injuries done
to him, but may not srek redress for injuries done to other~."
LAIRD v. TATUM 15
Opinion of the Court
partmental knowledge, the United States D'istrict
Court can hear evidence, ascertain the facts, and
decide what, if any, further restrictions on the complained-
of activities are called for to confine the
military to their legitimate sphere of activity and
to protect [respondents'] a11egedly infringed constitutional
rights." 144 U. S. App. D. C., at 83, 444 F.
2d, at 958. (Emphasis added.)
Carried to its logical end, this approach would have
the federal courts as virtually continuing monitors
of the wisdom and soundness of Executive action; such
a role is appropriate for the Congress acting through
its committees and the "power of the purse"; it is not
the role of the judiciary, absent actual present or immediately
threatened injury resulting from unlawful governmental
action.
We, of course, intimate no view with respect to the
propriety or desirability, from a policy standpoint, of
the challenged activities of the Department of the Army;
our conclusion is a narrow one, namely, that on this
record the respondents have not presented a case for
resolution by the courts.
The concerns of the Executive and Legislative Branches
in response to disclosure of the Army surveillance activities-
and indeed the claims alleged in the complaintreflect
a traditional and strong resistance of Americans
to any military intrusion into civilian affairs. That tradition
has deep roots in our history and found early expression,
for example, in the Third Amendment's explicit
prohibition against quartering soldiers in private homes
without consent and in the constitutional provisions for
civilian control of the military. Those prohibitions are
not directly presented by this case, but their philosophical
underpinnings explain our traditional insistence on limitations
on military operations in peacetime. Indeed,
when presented with claims of judicially cognizable in16
OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 u. s.
jury resulting from military intrusion into the civilian
sector, federal courts are fully empowered to consider
claims of those asserting such injury; there is nothing in
our Nation's history or in this Court's decided cases, including
our holding today, that can properly be seen as
giving any indication that actual or threatened injury by
reason of unlawful activities of the military would go
unnoticed or unremedied.
Reversed.
MR. JUSTICE DouGLAS, \vith whom MR. JusTICE MARSHALL
concurs, dissenting.
I
If Congress had passed a law authorizing the armed
services to establish surveillance over the civilian population,
a most serious constitutional problem would be
presented. There is, however, no law authorizing surveillance
over civilians, which in this case the Pentagon
concededly had undertaken. The question is whether
such authority may be implied. One can search the
Constitution in vain for any such authority.
The start of the problem is the constitutional distinction
between the "militia" and the Armed Forces. By
Art. I, 8, of the Constitution the militia is specifically
confined to precise duties: "to execute the Laws of the
Union, suppress Insurrectious and repel Invasions."
This obviously means that the "militia" cannot be
sent overseas to fight wars. It is purely a domestic
arm of the governors of the several States,' save as it
may be called under Art. I, § 8, of the Constitution into
the federal service. Whether the "militia" could be
1 I have expressed my doubts whether the "militia" loses it~
constitutional role by an Act of Congress which incorporates it
in the armed services. Drifka v. Brainard, 89 S. Ct. 434, 21 L. Ed.
2d 427.
LAIRD v. TATUM 17
DouGLAs, J., dissenting
given powers comparable to those granted the FBI is a
question not now raised, for we deal here not with the
"militia" but with "armies." The Army, Navy, and Air
Force are comprehended in the constitutional term
"armies." Article I, § 8, provides that Congress may
"raise and support Armies," and "provide and maintain a
Navy," and make "Rules for the Government and Regulation
of the land and naval Forces." And the Fifth
Amendment excepts from the requirement of a presentment
or indictment of a grand jury "cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger."
Acting under that authority, Congress has provided a
code governing the Armed Services. That code sets the
procedural standards for the Government and regulation
of the land and naval forces. It is difficult to imagine
how those powers can be extended to military surveillance
over civilian affairs.2
The most pointed and relevant decisions of the Court
on the limitation of military authority concern the attempt
of the military to try civilians. The first leading
case was Ex parte Milligan, 4 Wall. 2, 124, where the
Court noted that the conflict between "civil liberty" and
"martial law" is "irreconcilable." The Court which made
that announcement would have been horrified at the
prospect of the military-absent a regime of martial
law-establishing a regime of surveillance over civilians.
The power of the military to establish such a system is
obviously less than the power of Congress to authorize
such surveillance. For the authority of Congress is restricted
by its power to "raise" armies, Art. I, § 8; and,
to repeat, its authority over the Armed Forces is stated
in these terms, "To make Rules for the Government and
Regulation of the land and naval Forces."
2 See Appendix I to this opinion, infra, p. 29.
OCTOBER TERM, 1971
DOUGLAS, J., dissenting 408 U.S.
The Constitution contains many provisions guaranteeing
rights to persons. Those include the right to indictment
by a grand jury and the right to trial by a jury of
one's peers. They include the procedural safeguards of the
Sixth Amendment in criminal prosecutions; the protection
against double jeopardy, cruel and unusual punishments-
and, of course, the First Amendment. The alarm
was sounded in the Constitutional Convention about the
dangers of the armed services. Luther Martin of Maryland
said, "when a government wishes to deprive its
citizens of freedom, and reduce them to slavery, it generally
makes use of a standing army." 3 That danger,
we have held, exists not only in bold acts of usurpation of
power, but also in gradual encroachments. We held that
court-martial jurisdiction cannot be extended to reach
any person not a member of the Armed Forces at the
times both of the offense and of the trial, which eliminates
discharged soldiers. Toth v. Quarles, 350 U. S. ll.
Neither civilian employees of the Armed Forces overseas,
McElroy v. Guagliardo, 361 U.S. 281; Grisham v. Hagan,
361 U. S. 278, nor civilian dependents of military personnel
accompanying them overseas, Kinsella v. Singleton,
361 U. S. 234; Reid v. Covert, 354 U. S. 1, may be tried
by court-martial. And even as respects those in the
Armed Forces we have held that an offense must be
"service connected" to be tried by court-martial rather
than by a civilian tribunal. O'Callahan v. Parker, 395 u. s. 258, 272.
The upshot is that the Armed Services-as distinguished
from the "militia"-are not regulatory agencies
or bureaus that may be created as Congress desires and
granted such powers as seem necessary and proper.
The authority to provide rules "governing" the Armed
Services means the grant of authority to the Armed
3 3 M. Farrand, Records of the Federal Convention 209 (1911).
LAIRD v. TATUM 19
DouGLAS, J ., dissenting
Services to govern themselves, not the authority to govern
civilians. Even when "martial law" is declared, as
it often has been, its appropriateness is subject to judicial
review, Sterling v. Constantin, 287 U. S. 378, 401,
403-404.4
Our tradition reflects a desire for civilian supremacy
and subordination of military power. The tradition goes
back to the Declaration of Independence, in which it was
recited that the King "has affected to render the Military
independent of and superior to the Civil power."
Thus, we have the "militia" restricted to domestic use,
the restriction of appropriations to the "armies" to two
years, Art. I, § 8, and the grant of command over the
armies and the militia when called into actual service
of the United States to the President, our chief civilian
officer. The tradition of civilian control over the Armed
Forces was stated by Chief Justice Warren: 5
"The military establishment is, of course, a necessary
organ of government; but the reach of its
power must be carefully limited lest the delicate
balance between freedom and order be upset. The
maintenance of the balance is made more difficult by
• Even some actions of the Armed Services in regulating their
own conduct may be properly subjected to judicial scrutiny. Those
who are not yet in the Armed Services have the protection of the
full panoply of tJie laws governing admission procedures, see, e. g.,
M cKart v. United States, 395 U. S. 185; Oestereich v. Selective
Service Board, 393 U. S. 233. Those in the service may use habeas
corpus to test the jurisdiction of the Armed Services to try or detain
them, see, e. g., Parisi v. Davidson, 405 U. S. 34; Noyd v. Bond,
395 U. S. 683, 696 n, 8; Reid v. Covert, 354 U. S. l; Billings v.
Truesdell, 321 U. S. 542. And, those in the Armed Services may
seek the protection of civilian, rather than military, courts when
charged with crimes not service connected, O'Callahan v. Parker,
395 U. S. 258.
" The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181,
182, 193 (1962).
20 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408U.S.
the fact that while the military serves the vital
function of preserving the existence of the nation,
it is, at the same time, the one element of govern•
ment that exercises a type of authority not easily
assimilated in a free society ....
"In times of peace, the factors leading to an extraordinary
deference to claims of military necessity
have naturally not been as weighty. This has been
true even in the all too imperfect peace that has
been our lot for the past fifteen years- and quite
rightly so, in my judgment. It is instructive to recall
that our I\"ation at the time of the Constitutional
Convention was also faced with formidable problems.
The English, the French, the Spanish, and various
tribes of hostile Indians were all ready and eager to
subvert or occupy the fledgling Republic. Nevertheless,
in that environment, our Founding Fathers
conceived a Constitution and Bill of Rights replete
with provisions indicating their determination to protect
human rights. There was no call for a garrison
state in those times of precarious peace. We should
heed no such call now. If we were to fail in these
days to enforce the freedom that until now has been
the American citizen's birthright, we would be abandoning
for the foreseeable future the constitutional
balance of powers and rights in whose name we arm."
Thus, we have until today consistently adhered to
the belief that
"[i]t is an unbending rule of law, that the exercise
of military power, where the rights of the citizen
are concerned, shall never be pushed beyond what
the exigency requires." Raymond v. Thomas, 91
U. S. 712, 716.
LAIRD v. TATUM 21
DOUGLAS, J., dissenting
It was in that tradition that Youngstown Sheet &
Tube Co. v. Sawyer, 343 U. S. 579, was decided, in which
President Truman's seizure of the steel mills in the socalled
Korean War was held unconstitutional. As stated
by Justice Black:
"The order cannot properly be sustained as an
exercise of the President's military power as Commander
in Chief of the Armed Forces. The Government
attempts to do so by citing a number
of cases upholding broad powers in military commanders
engaged in day-to-day fighting in a theater
of war. Such cases need not concern us here. Even
though 'theater of war' be an expanding concept,
we cannot with faithfulness to our constitutional
system hold that the Commander in Chief of the
Armed Forces has the ultimate power as such to
take possession of private property in order to keep
labor disputes from stopping production. This is
a job for the Nation's lawmakers, not for its
military authorities." Id., at 587.
Madison expressed the fear of military dominance: "
"The veteran legions of Rome were an overmatch
for the undisciplined valor of all other nations, and
rendered her the mistress of the world.
"Not the less true is it, that the liberties of Rome
proved the final victim to her military triumphs;
and that the liberties of Europe, as far as they ever
existed, have, with few exceptions, been the price
of her military establishments. A standing force,
therefore, is a dangerous, at the same time that it
may be a necessary, provision. On the smallest
scale it has its inconveniences. On an extensive
6 The Federalist No. 41.
22 OCTOBER TERM, 1971
DouoLAs, J., dissenting 408 U.S.
scale its consequences may be fatal. On any scale
it is an object of laudable circumspection and precaution.
A wise nation will combine all these considerations;
and, whilst it does not rashly preclude
itself from any resource which may become essential
to its safety, will exert all its prudence in diminishing
both the necessity and the danger of resorting
to one which may be inauspicious to its liberties.
"The clearest marks of this prudence are stamped
on the proposed Constitution. The Union itself,
which it cements and secures, destroys every pretext
for a military establishment which could be dangerous.
America united, with a handful of troops, or
without a single soldier, exhibits a more forbidding
posture to foreign ambition than America disunited,
with a hundred thousand veterans ready for combat."
As Chief Justice Warren has observed, the safeguards
in the main body of the Constitution did not satisfy
the people on their fear and concern of military
dominance: 7
"They were reluctant to ratify the Constitution
without further assurances, and thus we find in the
Bill of Rights Amendments 2 and 3, specifically
authorizing a decentralized militia, guaranteeing the
right of the people to keep and bear arms, and prohibiting
the quartering of troops in any house in
time of peace without the consent of the owner.
Other Amendments guarantee the right of the people
to assemble, to be secure in their homes against
unreasonable searches and seizures, and in criminal
cases to be accorded a speedy and public trial by
an impartial jury after indictment in the district
7 N. 5, supra, at 18.5.
LAIRD v. TATUM 23
DouGLAS, J ., dissenting
and state wherein the crime was committed. The
only exceptions made to these civilian trial procedures
are for cases arising in the land and naval
forces. Although there is undoubtedly room for
argument based on the frequently conflicting sources
of history, it is not unreasonable to believe that
our Founders' determination to guarantee the preeminence
of civil over military power was an important
element that prompted adoption of the Constitutional
Amendments we call the Bill of Rights."
The action in turning the "armies" loose on surveillance
of civilians was a gross repudiation of our
traditions. The military, though important to us, is
subservient and restricted purely to military missions.
It even took an Act of Congress to allow a member of
the Joint Chiefs of Staff to address the Congress; 8 and
that small step did not go unnoticed but was in fact
viewed with alarm by those respectful of the civilian
tradition. \V alter Lipprnann has written that during
World War II, he was asked to convey a message to
Winston Churchill, while the latter was in Washington
together with his chiefs of staff. It was desired that
Churchill should permit his chiefs of staff to testify
before Congress as to the proper strategy for waging
the war. Lipprnann explains, however, that he "never
finished the message. For the old lion let out a roar
8 The National Security Act of 1947, amended by § 5 of the Act
of Aug. 10, 1949, 6:3 Stat. 580, provided in § 202 (c) (6):
"No provision of this Act shall be so construed as to prevent
a Secretary of a military department or a member of the .Joint
Chiefs of Staff from presenting to the Congress, on his own initiative,
after first so informing the Secretary of Defense, any recommendation
relating to the Department of Defense that he may derm
proper." See H. R. Conf. Rep. ~o. 1142, 81st Cong., 1st Sess., 18.
This provision is now codified as 10 U.S. C.§ 141 (e).
24 OCTOBER TERM, 1971
DouGLAs, J ., dissenting 408 u. s.
demanding to know why I was so ignorant of the British
way of doing things that I could dare to suggest that
a British general should address a parliamentary body.
"As I remember it, what he said was 'I am the
Minister of Defense and I, not the generals, will
state the policy of His Majesty's government.'"
The Intervention of the General, Washington Post,
Apr. 27, 1967, Sec. A, p. 21, col. 1.0
The act of turning the military loose on civilians
even if sanctioned by an Act of Congress, which it
has not been, would raise serious and profound constitutional
questions. Standing as it does only on brute
power and Pentagon policy, it must be repudiated as a
usurpation dangerous to the civil liberties on which free
men are dependent. For, as Senator Sam Ervin has
said, "this claim of an inherent executive branch power
of investigation and surveillance on the basis of people's
beliefs and attitudes may be more of a threat to our
internal security than any enemies beyond our borders."
Privacy and Government Investigations, 1971 U. Ill.
L. F. 137, 153.
II
The claim that respondents have no standing to challenge
the Army's surveillance of them and the other
members of the class they seek to represent is too transparent
for serious argument. The surveillance of the
Army over the civilian sector-a part of society hitherto
immune from its control- is a serious charge. It is
alleged that the Army maintains files on the membership,
ideology, programs, and practices of virtually every activist
political group in the country, including groups such
as the Southern Christian Leadership Conference, Clergy
0 The full account is contained in AppC'ndix II, infra, at 33.
LAIRD v. TATUM 25
DOUGLAS, J., dissenting
and Laymen United Against the War in Vietnam, the
American Civil Liberties Union, Women's Strike for
Peace, and the National Association for the Advancement
of Colored People. The Army uses undercover agents to
infiltrate these civilian groups and to reach into confidential
files of students and other groups. The Army
moves as a secret group among civilian audiences, using
cameras and electronic ears for surveillance. The data
it collects are distributed to civilian officials in state, federal,
and local governments and to each military intelligence
unit and troop command under the Army's jurisdiction
(both here and abroad); and these data are
stored in one or more data banks.
Those are the allegations; and the charge is that the
purpose and effect of the system of surveillance is to
harass and intimidate the respondents and to deter them
from exercising their rights of political expression, protest,
and dissent "by invading their privacy, damaging
their reputations, adversely affecting their employment
and their opportunities for employment, and in other
ways." Their fear is that "permanent reports of their
activities will be maintained in the Army's data bank,
and their 'profiles' will appear in the so-called 'Blacklist'
and that all of this information will be released to numerous
federal and state agencies upon request."
Judge 1.Vilkey, speaking for the Court of Appeals,
properly inferred that this Army surveillance "exercises a
present inhibiting efJect on their full expression and utilization
of their First Amendment rights." 144 U. S.
App. D. C. 72, 79, 444 F. 2d 947, 954. That is the test.
The "deterrent effect" on First Amendment rights by
government oversight marks an u11constitutional intrusion,
Lamont v. Postmaster General, 381 U. S. 301, 307.
Or, as stated by MH. JUSTICE BRENNAN, "inhibition as
well as prohibition against the exercise of precious First
26 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 U.S.
Amendment rights is a power denied to government."
Id., at 309. When refusal of the Court to pass on the
constitutionality of an Act under the normal consideration
of forbearance "would itself have an inhibitory effect
on freedom of speech" then the Court will act. United
States v. Raines, 362 U. S. 17, 22.
As stated by the Supreme Court of New Jersey, "there
is good reason to permit the strong to speak for the weak
or the timid in First Amendment matters." Anderson
v. Sills, 56 N. J. 210, 220, 265 A. 2d 678, 684 (1970).
One need not wait to sue until he loses his job or until
his reputation is defamed. To withhold standing to sue
until that time arrives would in practical effect immunize
from judicial scrutiny all surveillance activities, regardless
of their misuse and their deterrent effect. As stated
in Flast v. Cohen, 392 U. S. 83, 101, "in terms of
Article III limitations on federal court jurisdiction, the
question of standing is related only to whether the dispute
sought to be adjudicated will be presented in an
adversary context and in a form historically viewed as
capable of judicial resolution." Or, as we put it in Balcer
v. Carr, 369 U. S. 186, 204, the gist of the standing issue
is whether the party seeking relief has "alleged such a
personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely
depends for illumination of difficult constitutional
questions."
The present controversy is not a remote, imaginary
conflict. Respondents were targets of the Army's surveillance.
First, the surveillance was not casual but
massive and comprehensive. Second, the intelligence
reports were regularly and widely circulated and were
exchanged with reports of the FBI, state and municipal
police departments, and the CIA. Third, the Army's
LAIRD v. TATUM 27
1 DouGLAS, J., dissenting
surveillance was not collecting material in public records
but staking out teams of agents, infiltrating undercover
agents, creating command posts inside meetings, posing
as press photographers and newsmen, posing as TV newsmen,
posing as students, and shadowing public figures.
Finally, we know from the hearings conducted by
Senator Ervin that the Army has misused or abused its
reporting functions. Thus, Senator Ervin concluded that
reports of the Army have been "taken from the Intelligence
Command's highly inaccurate civil disturbance
teletype and filed in Army dossiers on persons who have
held, or were being considered for, security clearances,
thus contaminating what are supposed to be investigative
reports with unverified gossip and rumor. This practice
directly jeopardized the employment and employment
opportunities of persons seeking sensitive positions with
the federal government or defense industry." H•
Surveillance of civilians is none of the Army's constitutional
business and Congress has not undertaken to
entrust it with any such function. The fact that since
this litigation started the Army's surveillance may have
been cut back is not an end of the matter. Whether there
has been an actual cutback or whether the announcements
are merely a ruse can be determined only after a
hearing in the District Court. We are advised by an
amicus curiae brief filed by a group of former Army Intelligence
Agents that Army surveillance of civilians is
rooted in secret programs of long standing:
"Army intelligence has been maintaining an unauthorized
watch over civilian political activity for
nearly 30 years. Nor is this the first time that
10 Hearings on Federal Data Banks, Computers and the Bill of
Rights, before the Subcommittee on Constitutional Rights of the
Senate Committee on the Judiciary, 92d Cong., 1st Scss. (1971).
28 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 408U.S.
Army intelligence has, without notice to its civilian
superiors, overstepped its mission. From 1917 to
1924, the Corps of Intelligence Police maintained
a massive surveillance of civilian political activity
which involved the use of hundreds of civilian informants,
the infiltration of civilian organizations
and the seizure of dissenters and unionists, sometimes
without charges. That activity was opposedthen
as now-by civilian officials on those occasions
when they found out about it, but it continued
unabated until post-war disarmament and economies
finally eliminated the bureaucracy that conducted
it." Pp. 29-30.
This case involves a cancer in our body politic. It is a
measure of the disease which afflicts us. Army surveillance,
like Army regimentation, is at war with the principles
of the First Amendmellt. Those who already walk
submissively will say there is no cause for alarm. But
submissiveness is not our heritage. The First Amendment
was designed to allow rebellion to remain as our heritage.
The Constitution was designed to keep government off
the backs of the people. The Bill of Rights was added
to keep the precincts of belief and expression, of the
press, of political and social activities free from surveillance.
The Bill of Rights was designed to keep agents
of government and official eavesdroppers away from assemblies
of people. The aim was to allow men to be
free and independent and to assert their rights against
government. There can be no influence more paralyzing
of that objective than Army surveillance. '\Vhen an intelligence
officer looks over every noncouformist's shoulder
in the library, or walks invisibly by his side in a picket
line, or infiltrates his club, the America once extolled as
the voice of liberty heard around the world no longer is
LAIRD v. TATUM 29
1 Appendix I to opinion of DOUGLAS, J., dissenting
cast in the image which Jefferson and Madison designed,
but more in the Russian image, depicted in Appendix III
to this opinion.
APPENDIX I TO OPINIO~ OF DOUGLAS, J.,
DI SSE:!\TTI X G
The narrowly circumscribed domestic role which Congress
has by statute authorized the Army to play is
clearly an insufficient basis for the wholesale civilian surveillance
of which responde11ts complain. The entire
domestic mission of the armed services is delimited by
nine statutes.
Four define the Army's narrow role as a back-up for
civilian authority where the latter has proved insufficient
to cope with insurrection:
10 U. S. C. § 331:
"'Whenever there is an insurrection in any State against
its government, the President may, upon the request of
its legislature or of its governor if the legislature cannot
be convened, call into Federal service such of the militia
of the other States, in the number requested by that
State, and use such of the armed forces, as he considers
necessary to suppress the insurrection."
10 u. s. c. § 332:
"Whenever the President considers that unlawful obstructions,
combinations, or assemblages, or rebellion
against the authority of the United States, make it impracticable
to enforce the laws of the United States in
any State or Territory by the ordinary course of judicial
proceedings, he may call into Federal service such of the
militia of any State, and use such of the armed forces,
as he considers necessary to enforce those laws or to suppress
the rebellion.''
30 OCTOBER TERM, 1971
Apprndix I to opinion of DouGLAs, .T., dissenting 408 U.S.
10 U. S. C. § 333:
"The President, by using the militia or the armed forces,
or both, or by any other means, shall take such measures
as he considers necessary to suppress, in a State, any insurrection,
domestic violence, unlawful combination, or
conspiracy, if it-----
" ( 1) so hinders the execution of the laws of that State,
and of the United States within the State, that any part
or class of its people is deprived of a right, privilege,
immunity, or protection named in the Constitution and
secured by law, and the constituted authorities of that
State are unable, fail, or refuse to protect that right,
privilege, or immunity, or to give that protection; or
"(2) opposes or obstructs the execution of the laws of
the 'Gnited States or impedes the course of justice under
those laws.
"In any situation covered by clause (1), the State shall
be considered to have denied the equal protection of the
laws secured by the Constitution."
10 u. s. c. § 334:
"Whenever the President considers it necessary to
use the militia or the armed forces under this chapter, he
shall, by proclamation, immediately order the insurgents
to disperse and retire peaceably to their abodes within a
limited time."
Two statutes, passed as a result of Reconstruction Era
military abuses, prohibit military interference in civilian
elections:
18 U. S. C. § 592:
"'Whoever, being an officer of the Army or Navy, or
other person in the civil, military, or naval service of the
United States, orders, brings, keeps, or has under his
authority or control any troops or armed men at any
place where a general or special election is held, unless
such force be necessary to repel armed enemies of the
LAIRD v. TATUM 31
I Appendix I to opinion of Douau.s, .J., dissenting
United States, shall be fined not more than $5,000 or
imprisoned not more than five years, or both; and be disqualified
from holding any office of honor, profit, or trust
under the United States.
"This section shall not prevent any officer or member
of the armed forces of the United States from exercising
the right of suffrage in any election district to which he
may belong, if otherwise qualified according to the laws
of the State in which he offers to vote."
18 T;. s. c. § 593:
"Whoever, being an officer or member of the Armed
Forces of the United States, prescribes or fixes or attempts
to prescribe or fix, whether by proclamation, order or
otherwise, the qualifications of voters at any election in
any State; or
"\Vhoever, being such officer or member, prevents or
attempts to prevent by force, threat, intimidation, advice
or otherwise any qualified voter of any State from fully
exercising the right of suffrage at any general or special
election ; or
"\Vhoever, being such officer or member, orders or compels
or attempts to compel any election officer in any
State to receive a vote from a person not legally qualified
to vote; or
"Whoever, being such officer or member, imposes or
attempts to impose any regulations for conducting any
general or special election in a State, different from those
prescribed by law; or
""Whoever, being such officer or member, interferes in
any manner with an election officer's discharge of his
duties-
"Shall be fined not more than $5,000 or imprisoned not
more than five years, or both; and disqualified from holding
any office of honor, profit or trust under the United
States.
32 OCTOBER TERM, 1971
Appendix I to opinion of DouGLAS, J ., dissenting 408 U.S.
"This section shall not prevent any officer or member
of the Armed Forces from exercising the right of suffrage
in any district to which he may belong, if otherwise
qualified according to the laws of the State of such
district."
Another Reconstruction Era statute forbids the use of
military troops as a posse comitatus:
18 U.S. C.§ 1385:
""\Vhoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as
a posse comitatus or otherwise to execute the laws shall
be fined not more than $10,000 or imprisoned not more
than two years, or both."
Finally, there are two specialized statutes. It was
thought necessary to pass an Act of Congress to give the
armed services some limited power to control prostitution
near military bases, and an Act of Congress was required
to enable a member of the Joint Chiefs of Staff to testify
before Congress:
18 u. s. c. § 1384:
"Within such reasonable distance of any military or
naval camp, station, fort, post, yard, base, cantonment,
training or mobilization place as the Secretary of the
Army, the Secretary of the Navy, the Secretary of the
Air Force, or auy two or all of them shall determine to
be needful to the efficiency, health, and welfare of the
Army, the Navy, or the Air Force, and shall designate
and publish in general orders or bulletins, whoever engages
in prostitution or aids or abets prostitution or procures
or solicits for purposes of prostitution, or keeps or
sets up a house of ill fame, brothel, or bawdy house, or
receives any person-for purposes of lewdness, assignation,
or prostitution into any vehicle, conveyance, place, structure,
or building, or permits any person to remain for
LAIRD v. TATU:M
1 Appendix II to opinion of DoUGLAS, J., di ss enting
the purpose of lewdness, assignation, or prostitution in
any vehicle, conveyance, place, structure, or building or
leases or rents or contracts to lease or rent any vehicle,
conveyance, place, structure or building, or part thereof,
knowing or with good reason to know that it is intended
to be used for any of the purposes herein prohibited sha11
be fined not more than $1,000 or imprisoned not more
than one year, or both.
"The Secretaries of the Army, Navy, and Air Force and
the Federal Security Administrator shall take such steps
as they deem necessary to suppress and prevent such violations
thereof, and shall accept the cooperation of the
authorities of States and their counties, districts, and
other political subdivisions in carrying out the purpose of
this section.
"This section shall not be construed as conferring on
the personnel of the Departments of the Army, Navy,
or Air Force or the Federal Security Agency any authority
to make criminal investigations, searches, seizures, or
arrests of civilians charged with violations of this section."
10 U.S. C.§ 141 (e):
"After first informing the Secretary of Defense, a member
of the Joint Chiefs of Staff may make such recommendations
to Congress relating to the Department of
Defense as he may consider appropriate."
APPENDIX II TO OPINIOX OF DOVGLAR . J.,
DlSSEXTlNG
\Valter Lippmann gave the following account of his
conversation with Churchill:
"The President's bringing Gen. \Vc>stmoreland
home in order to explain the war reminds me of an
instructive afternoon spent during the Second World
War. The country and the Congress were divide d
on the question of whether to strike first against
34 OCTOBER TERM, 1971
Appendix II to opinion of DoUGLAs, .J., dissenting 408 U.S.
Hitler or first against Japan. Churchill and Roosevelt
had agreed on the policy of Hitler first. But
there were large and powerful groups in the country,
many of them former isolationists in the sense that
they were anti-European, who wanted to concentrate
American forces on winning the war against
Ja pan. Even the American chiefs of staff were
divided on this question of high strategy.
"Churchill had come to Washington, accompanied
by the British chiefs of staff, to work out with President
Roosevelt and the Administration the general
plan of the global war. One morning I had a telephone
call from Sen. Austin, who \vas a strong believer
in the Churchill-Roosevelt line. He said in
effect, 'I know you are seeing the Prime Minister
this afternoon and I wish you would ask him to tell
his chiefs of staff to come to Congress and testify
in favor of our strategical policy.' Quite innocently
I said I would do this, and when Churchill received
me that afternoon I began by saying that I had a
message from Sen. Austi11. '\Vould the Prime
Minister instruct his chiefs of staff to go to the
Sellat(· Foreign Relations Committee .... ' I never
finished the message. For the old lion let out a roar
demanding to know why l was so ignorant of the
British way of doing things that I could dare to suggest
that a British general should address a parliamentary
body.
"As I reml'tnbcr it, what he said was, 'I am the
Minister of Defense and l, not the generals, will
state the policy of Ilis Majesty's government.'
"No one who ever aroused the wrath of Churchill
is likely to forget it. I certainly have not forgotten
it. I learned an indelible lesson about one of the
elerncntary principles of democratic government.
And therefore, I take a very sour view of a field
LAIRD v. TATUM 35
1 Appendix II to opinion of DoUGLAS, J., dissenting
commander being brought home by the President
to educate the Congress and the American people."
Our military added political departments to their
staffs. A Deputy Chief of Naval Operations, Military
Policy Division, was first established in the Department
of the Navy by President Truman in 1945. In the Office
of Secretary of Defense that was done by President Truman
in 1947, the appointee eventually becoming Assistant
Secretary for International Security Affairs. A like
office \Vas established in 1961 in the Department of the
Army by President Kennedy and another for the Air
Force in 1957 by President Eisenhower. Thus, when the
Pentagon entered a Washington, D. C'., conference, its
four "Secretaries of State" faced the real Secretary of
State and more frequently than not talked or stared him
down. The Pentagon's "Secretaries of State" usually
spoke in unison; they were clear and dc<'isive with no ifs,
ands, or buts, and in policy conferences usually carried the
day.
By 1968 the Pentagon was spending $34 million a
year on non-military social and behavioral science research
both at home and abroad. One related to "witchcraft,
sorcery, magic, and other psychological phenomena"
in the Congo. Another concerned the "political
influence of university students in Latin America."
Other projects related to the skill of Korean women as
divers, snake venoms in the Middle East, and the like.
Research projects were going on for the Pentagon in
40 countries in sociology, psychology and behavioral
sciences.
The Pentagon became so powerful that no President
would dare crack down on it and try to regulate it.
The military approach to world affairs conditioned
our thinking and our planning after World War H.
We did not realize that to mi1lions of these people
there was no difference between a Communist dictatorship
36 OCTOBER TERM, 1971
Appendix II to opinion of DoUGLAB , .T., dissenting 408 U.S.
and the dictatorship under which they presently lived.
We did not realize that in some regions of Asia it
was the C'ommuni::;t party that identified itself with
the so-called reform programs, the other parties being
mere instruments for keeping a ruling class in power.
We did not, realize that, in the eyes of millions of illiterates,
the choice between democracy and communism
was not the critical choice it would be for us.
We talked about "saving democracy." But the real
question in Asia, the Middle East, Africa, and Latin
America was whether democracy would ever be born.
We forgot that democracy in most lands is an empty
word. We asked illiterate people living at the subsistence
level to furnish staging grounds for a military
operation whose outcome, in their eyes, had no relation
to their own welfare. Those who rejected our overtures
must be communists, we said. Those who did not approve
our military plans must be secretly aligning with
Russia, we thought.
So it was that in underdeveloped areas we became
identified not with ideas of freedom, but with bombs,
planes, and tanks. We thought less and less in terms
of defeating communism with programs of political action,
more and more in terms of defeating communism
with military might. Our foreign aid mounted; but
nearly 70% of it was military aid.
Our fears mounted as the cold war increased in intensity.
These fears had many manifestations. The
communist threat inside the country was magnified and
exalted far beyond its realities. Irresponsible talk
fanned the flames. Accusations were loosely made.
Character assassinations were common. Suspicion took
the place of goodwill. We needed to debate with impunity
and explore to the edges of problems. We needed
to search to the horizon for answers to perplexing problems.
We needed confidence in each other. But in the
LAIRD v. TATUM 37
Appendix III to opinion of Douau.s, J., dissenting
40's, 50's, and 60's suspicions grew. Innocent acts became
telltale marks of disloyalty. The coincidence that
an idea paralleled Soviet Russia's policy for a moment
of time settled an aura of doubt around a person. The
Intervention of the General, Washington Post, Apr. 27,
1967, Sec. A, p. 21, col. 1.
APPENDIX III TO OPINION OF DOUGLAS, J.,
DISSENTING
Alexander I. Solzhenitsyn, the noted Soviet author,
made the following statement March 30, 1972, concerning
surveillance of him and his family (reported in the
Washington Post, Apr. 3, 1972):
"A kind of forbidden, contaminated zone has been created
around my family, and to this day, there are people
in Ryazan [ where Solzhenitsyn used to live] who
were dismissed from their jobs for having visited my
house a few years ago. A corresponding member of the
Academy of Sciences, T. Timofeyev, who is director of a
Moscow institute, became so scared when he found out
that a mathematician working under him was my wife
that he dismissed her with unseemly haste, although this
was just after she had given birth and contrary to all
laws ...
"l t happens that an informant f for his new book on
the history of prerevolutionary Russia] may meet with
me. We work an hour or two and as soon as he leaves my
house, he will be closely followed, as if he were a state
criminal, and they will investigate his background, and
then go on to find out who this man meets, and then, in
turn, who that [next] person is meeting.
"Of course they cannot do this with everyone. The
state security people have their schedule, and their own
profound reasoning. On some days, there is no surveillance
at all, or only superficial surveillance. On other
days, they hang around, for example when Heinrich Boll
38 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
came to see me fhe is a German writer who recently visited
Moscow]. They will put a car in front of each of
the two approaches [ to the courtyard of the apartment
house where he stays in Moscow] with three men in each
car-and they don't work only one shift. Then off they
go after my visitors, or they trail people who leave on
foot.
"And if you consider that they listen around the clock
to telephone conversations and conversations in my home,
they analyze recording tapes and all correspondence, and
then collect and compare all these data in some vast
premises-and these people are not underlings-you cannot
but be amazed that so many idlers in the prime of
life and strength, who could be better occupied with productive
work for the benefit of the fatherland, are busy
with my friends and me, and keep inventing enemies."
MR. JusTICE BRENNAN, with whom MR. JUSTICE STEWART
and MR. JusTICE MARSHALL join, dissenting.
The Court of Appeals held that a justiciable controversy
exists and that respondents have stated a claim
upon which relief could be granted. 144 U. S. App.
D. C. 72, 83, 444 F. 2d 947, 958 (1971). I agree with
Judge Wilkey, writing for the Court of Appeals, that this
conclusion is compelled for the following reasons stated
by him:
"[Respondents] contend that the present ex-istence
of this system of gathering and distributing
information, allegedly far beyond the mission requirements
of the Army, constitutes an impermissible
burden on [respondents] and other persons
similarly situated which exercises a present inhibiting
effect on their full expression and utilization
of their First Amendment rights of free speech, etc.
The baleful effect, if there is one, is thus a present
LAIRD v. TATUM 39
BRENNAN, .T., dissenting
inhibition of lawful behavior and of First Amendment
rights.
"Under this view of [ respondents'] allegations,
under justiciability standards it is the operation
of the system itself which is the breach of the
Army's duty toward [respondents] and other civilians.
The case is therefore ripe for adjudication.
Because the evil alleged in the Army intelligence
system is that of overbreadth, i. e., the collection
of information not reasonably relevant to the Army's
mission to suppress civil disorder, and because there
is no indication that a better opportunity will later
arise to test the constitutionality of the Army's action,
the issue can be considered justiciable at this
time." I d., at 79-81, 444 F. 2d, at 954--956 ( emphasis
in original) (footnotes omitted).
"To the extent that the Army's argument against
justiciability here includes the claim that [respondents]
lack standing to bring this action, we cannot
agree. If the Army's system does indeed derogate
First Amendment values, the [respondents] are
persons who are sufficiently affected to permit
their complaint to be heard. The record shows
that most if not all of the [respondents] and/ or
the organizations of which they are members have
been the subject of Army surveillance reports and
their names have appeared in the Army's records.
Since this is precisely the injury of which [respondents]
complain, they have standing to seek redress
for that alleged injury in court and will provide the
necessary adversary interest that is required by the
standing doctrine, on the issue of whether the actions
complained of do in fact inhibit the exercise of
First Amendment rights. Nor should the fact that
40 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
these particular persons are sufficiently uninhibited
to bring this suit be any ground for objecting to
their standing." Id., at 79 n. 17, 444 F. 2d, at 954
n. 17.
Respondents may or may not be able to prove the
case they allege. But I agree with the Court of Appeals
that they are entitled to try. I would therefore
affirm the remand to the District Court for a trial and
determination of the issues specified by the Court of
Appeals.
GELBARD v. UNITED STATES 41
Syllabus
GELBARD ET AL. V. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-110. Argued March 27, 1972-Decided June 26, 1972*
Where a grand jury witness is adjudicated in civil contempt under
28 U. S. C. § 1826 (a) for refusing "without just cause shown to
comply with an order of the court to testify," the witness may
invoke as a defense 18 U.S. C.§ 2515, which directs that "[w]henever
any wire or oral communication has been intercepted, no
part of the contents of such communication and no evidence derived
therefrom may be received in evidence in any ... proceeding
in or before any ... grand jury ... ," since a showing that the
interrogation would be based upon the illegal interception of the
witness' communications would constitute the "just cause" that precludes
a finding of conh·mpt. Pp. 46-61.
No. 71-110, 443 F. 2d 837, reversed and remanded; No. 71-263, 450
F. 2d 199 and 450 F. 2d 231, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which DouGLAs,
STEWART, \\' HITE, and ::\1An8HALL, .J.J., joinrd. DouGLAs, ,J.,
post, p. 62, and \VHITE, J., post, p. 69, filed concurring opinions.
REHNQUIST, ,T., filed a dissenting opinion, in whieh Bl'RGER, C . .T.,
and BLACK'.'.WN and PowELL, JJ., joined, post, p. il.
Michael E. Tigar argued the cause for petitioners in
No. 71- 110. \Vith him on the brief was Burton Marks.
Mr. Marks filed a brief for petitioner Gelbard in :No.
71-110.
Deputy Solicitor General Friedman argued the cause
for the United States in both cases. On the brief in
No. 71-110 were Solicitor General Griswold, Assistant
Attorney General Petersen, Allan A. Tuttle, and Beatrice
Rosenberg. On the brief in No. 71-263 ·were Solicitor
*Together with No. 71-263, United States v. Egan et al., on certiorari
to the United States Court of Appeals for the Third Circuit.
42 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
General Griswold, 11ssistant Attorney General Mardian,
Mr. Tuttle, and Robert L. Keuch.
Jack J. Levine argued the cause pro hac vice for respondent
Egan in Xo. 71-263. "\Vith hirn on the brief
was Charles R. iVesson. Bernard L. Segal filed a brief
for respondent ·walsh ill Xo. 71-263.
Melvin L. Wulf, Sanford Jay Rosen, Thomas Harvey,
and Laurence R. Sperber filed a brief for the American
Civil Liberties union as arnicus curiae urging reversal
in Xo. 71-110 and affirmance in Xo. 71-263. Frank G.
Carrington, Jr., and Alan S. Ganz filed a brief for Americans
for Effective La,N Enforcement, Inc., as amicus
curiae urging reversal in ~o. 71-263.
MR. JusTICE BRENNAN delivered the opm10n of the
Court.
These cases present challenges to the validity of adjudications
of civil contempt, pursuant to 28 U. S. C.
§ 1826 (a),1 of witnesses before federal grand juries
l Section 1826 (a) provides:
"Whenever a witness in any proceeding before or ancillary to any
court or grand jury of the United States refuses without just cause
shown to comply with an order of the court to testify or provide
other information, including any book, paper, document, record,
recording or other material, the court, upon such refusal, or when
such refusn,1 is duly brou~ht to its attention, may summarily order
his confinement at a suitable place until such time as the witness is
willing to give such testimony or provide such information. No
period of such confinement shall exceed the life of-
" ( 1) the court proceeding, or
"(2) the trrm of the grand j11ry, including cxtrnsion~,
"hdore whi<'h such rcfu::-al to comply with thl' court ordPr occurrcd,
but in 110 cvrnt shall such confinrml'nt cxcl'c>d eightl'C'll months."
This provision was enacted as part of the Organized Crime Control
Act of 1970. It was intended to codify the existing practice of the
federal courts. S. Rep. No . 91-617, pp. 33,. 5(i-57, 148- 149 (1909);
GELBARD v. UNITED STATES 43
41 Opinion of the Court
who refused to comply with court orders to testify.
The refusals were defended upon the ground that interrogation
was to be based upon information obtained
from the witnesses' communications, allegedly intercepted
by federal agents by means of illegal wiretapping
and electronic surveillance. A provision of Title
III of the Omnibus Crime Control and Safe Streets
Act of 1968, 82 Stat. 211, as amended, 18 U. S. C.
§ § 2510-2520, directs that " [ w] henever any wire or oral
communication has been intercepted, no part of the
contents of such communication and no evidence derived
therefrom may be received in evidence in any ...
proceeding in or before any ... grand jury ... if the
disclosure of that information would be in violation
of this chapter." 18 U. S. C. § 2515.2 The question
presented is whether grand jury witnesses, in proceedings
under 28 U. S. C. § 1826 (a), are entitled to invoke
this prohibition of § 2515 as a defense to contempt
charges brought against them for refusing to testify.
In No. 71-110, the Court of Appeals for the Ninth
Cirruit held that they are not entitled to do so. United
States v. Gelbard, 443 F. 2d 837 (1971). In No.
71-263, the Court of Appeals for the Third Circuit,
en bane, reached the contrary conclusion. In re Grand
Jury Proceedings, Harrisburg, P ennsyl va nia (Egan), 450
H. n. Rep. Ko. 91-1549, pp. 33, 46 (19i0); see Shillitani v. Cnited
States, 384 U. S. 364 ( 1966).
2 Section 2515 provides in full:
"Whenevn any wire or oral communication ha~ been interccpt('d,
no part of the contents of such communication and no evidence deriYcd
therefrom may be received in evidence in any trial, hearing,
or other proceeding in or before any court, grand jury, department,
offirer, agency, r<.'gulatory body, legislative committee, or other
authority of the United States, a State, or a political subdivision
thereof if the disclosure of that information would be in violation
of this chapter."
44 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
F. 2d 199 (1971); fo re Grand Jury Proceedings, Harrisburg,
Pennsylvania I Walsh), 450 F. 2d 231 (1971).
We granted certiorari. 404 U.S. 990 (1971).3 We disagree
with the Court of Appeals for the Ninth Circuit
and agree with the Court of Appeals for the Third Circuit.
No. 71-110. A federal district judge approved wiretaps
by federal agents of the telephones of Perry Paul,
an alleged bookmaker, and Jerome Zarowitz, a former
executive of a Las Vegas casino. In the course of those
taps, the agents overheard conversations between Paul
and petitioner Gelbard and between Zarowitz and petitioner
Parnas. Petitioners were subsequently called
before a federal grand jury convened in Los Angeles
to investigate possible violations of federal gambling
laws. The Government asserted that petitioners would
be questioned about third parties and that the questions
would be based upon petitioners' intercepted telephone
conversations. Petitioners appeared before the
grand jury, but declined to answer any questions based
upon their intercepted conversations until they were
afforded an opportunity to challenge the legality of the
interceptions. Following a hearing, the United States
District Court for the Central District of California
found petitioners in contempt and, pursuant to 28
3 The Third Circuit followed Egan in In re Grand Jury Investigation
(Maratea), 444 F. 2d 499 (1971) (en bane). The District
of Columbia. Circuit has aligned itself with the Third, see In re
Evans, 146 U. S. App. D. C. :no, 452 F. 2d 1239 (1971), while thr
Ninth has continued to follow Ge/bard, see Bacon v. United States,
446 F. 2d 667 (1971); Olsen v. United States, 446 F. 2d 912 (1971);
ln re Russo, 448 F. 2d 369 (1971); Reed v. United States, 448 F. 2d
1276 (1971); United States v. Reynolds, 449 F. 2d 1347 (1971). The
First and Fifth Circuits have also adverted to the question. United
States v. Doe (In re Marx), 451 F. 2d 466 (CAI 1971); United
States v. Doe (In re Popkin), 460 F. 2d 328 (CAl 1972); Dudley v.
United States, 427 F. 2d 1140 (CA5 1970). See also United States
ex rel. Rosado v. Flood, 394 F. 2d 139 (CA2 1968); Carter v. United
States, 417 F. 2d 384 (CA9 1969).
GELBARD v. U:-l'ITED STATES 45
41 Opinion of the Court
U. S. C. § 1826 (a), committed them to custody for
the life of the grand jury or until they answered the
questions.
No. 71-263. Respondents Egan and Walsh were
called before a federal grand jury convened in Harrisburg,
Pennsylvania, to investigate, among other possible
crimes, an alleged plot to kidnap a Government
official. Pursuant to 18 U. S. C. § 2514, both respondents
were granted transactional immunity in return for
their testimony. Respondents appeared before the
grand jury, but refused to answer questions on the
ground, among others, that the questions were based
upon information overheard from respondents by means
of the Government's illegal wiretapping and electronic
surveillance. The Government did not reply to respondents'
allegations.4 Following a hearing, the United
States District Court for the Middle District of Pennsylvania
found respondents in contempt, and they were
also committed to custody pursuant to 28 U. S. C.
§ 1826 (a).
Section 1826 (a) expressly limits the adjudication of
civil contempt to the case of a grand jury witness who
"refuses without just cause shown to comply with an
order of the court to testify." Our inquiry, then, is
whether a showing that interrogation would be based
upon the illegal interception of the witness' communications
constitutes a showing of "just cause" that precludes
a finding of contempt. The answer turns on the
construction of Title Ill of the Omnibus Crime Control
Act.5
4 See n. 23, infra.
5 In view of our disposition of these case:3, we do not reach any
of the constitutional issues tendered as to the right of a grand jury
witness to rely upon the Fourth Amendment as a basis for refusing
to answer questions. We also note that the constitutionality of
Title III is not challenged in these cases.
46 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
I
In Title III, Congress enacted a comprehensive scheme
for the regulation of wiretapping and electronic surveillance.
See United States v. United States District
Court, 407 U. S. 297, 301-306. Title III authorizes the
interception of private wire and oral communications, but
only when law enforcement officials are investigating
specified serious crimes and receive prior judicial approval,
an approval that may not be given except upon
compliance with stringent conditions. 18 U. S. C.
§§ 2516, 2518 (1)-(8). If a wire or oral communication
is intercepted in accordance with the provisions
of Title III, the contents of the communication may
be disclosed and used under certain circumstances. 18
U. S. C. § 2517. Except as expressly authorized in
Title III, however, all interceptions of wire and oral
communications are flatly prohibited. Unauthorized interceptions
and the disclosure or use of information obtained
through unauthorized interceptions are crimes,
18 U. S. C. § 2511 (1), and the victim of such interception,
disclosure, or use is entitled to recover civil
damages, 18 U. S. C. § 2520. Title III also bars the
use as evidence before official bodies of the contents
and fruits of illegal interceptions, 18 U. S. C. § 2515,
and provides procedures for moving to suppress such
evidence in various proceedings, 18 U. S. C. § 2518
(9)-(10).
The witnesses in these cases were held in contempt
for disobeying court orders by refusing to produce evidence-
their testimony- before grand juries. Consequently,
their primary contention is that § 2515, the
evidentiary prohibition of Title III, afforded them a
defense to the contempt charges. In addressing that
contention, we must assume, in the present posture of
GELBARD v. UNITED STATES 47
41 Opinion of the Court
these cases, that the Government has intercepted communications
of the witnesses and that the testimony
the Government seeks from them would be, within the
meaning of § 2515, "evidence derived" from the intercepted
communications. We must also assume that the
communications were not intercepted in accordance with
the specified procedures and thus that the witnesses'
potential testimony would be "disclosure" in violation
of Title III. See 18 U. S. C. §§ 2511 (1), 2517 (3).
In short, we proceed on the premise that § 2515 prohibits
the presentation to grand juries of the compelled
testimony of these witnesses.
The narrow question, then, is whether under these
circumstances the witnesses may invoke the prohibition
of § 2515 as a defense to contempt charges brought on
the basis of their refusal to obey court orders to testify.
We think they may.
The unequivocal language of § 2515 expresses the
fundamental policy adopted by Congress on the subject
of wiretapping and electronic surveillance. As the congressional
findings for Title III make plain, that policy
is strictly to limit the employment of those techniques
of acquiring information:
"To safeguard the privacy of innocent persons, the
interception of wire or oral communications \vhere
none of the parties to the communication has consented
to the interception should be allowed only
when authorized by a court of competent jurisdiction
and should remain under the control and
supervision of the authorizing court. Interception
of wire and oral communications should further
be limited to certain major types of offenses and
specific categories of crime with assurances that
the interception is justified and that the information
48 OCTOBER TERM, 1971
Opinion of the Court 408 U. S.
obtained thereby will not be misused." § 801 (d),
82 Stat. 211."
The Senate committee report that accompanied Title
III underscores the congressional policy:
"Title III has as its dual purpose (1) protecting
the privacy of wire and oral communications,
and (2) delineating on a uniform basis the circumstances
and conditions under which the interception
of wire and oral communications may be
authorized. To assure the privacy of oral and wire
communications, title III prohibits all wiretapping
and electronic surveillance by persons other than
duly authorized law enforcement officers engaged
in the investigation or prevention of specified types
of serious crimes, and only after authorization of
a court order obtained after a showing and finding
of probable cause." S. Rep. No. 1097, 90th
Cong., 2d Sess., 66 (1968).
Hence, although Title III authorizes invasions of individual
privacy under certain circumstances, the protection
of privacy was an overriding congressional concern.'
Indeed, the congressional findings articulate
6 "Paragraph (d) recognizes the responsible part that the judiriary
must play in supervising the interception of wire or oral communications
in ordrr that thr privary of innocent persons may be protected:
... the interception or use of wire or oral communications
should only be on court order. Because of the importance of privacy,
such interceptions should further be limited to major offenses and
care must be taken to insure that no misuse is made of any information
obtained." S. Rep. No. 1097, 90th Cong., 2d Sess., 89 (1968).
7 In stating the problem addressed by Congress in Title III, the
Senate report noted that "[b]oth proponents and opponents of
wiretapping and electronic surveillance agree that the present state
of the law in this area is extremely unsatisfactory and that the
Congress should aet to clarify the rc~ulting confusion." Id., at
GELBARD v. UNITED STATES 4f)
41 Opinion of the Court
clearly the intent to utilize the evidentiary prohibition
of § 2515 to enforce the limitations imposed by Title III
upon wiretapping and electronic surveillance:
"In order to protect effectively the privacy of wire
and oral communications, to protect the integrity
of court and administrative proceedings, and to
prevent the obstruction of interstate commerce, it
is necessary for Congress to define on a uniform
basis the circumstances and conditions under which
the interception of wire and oral communications
may be authorized, to prohibit any unauthorized
interception of such communications, and the use
of the contents thereof in evidence in courts and
administrative proceedings." § 801 (b), 82 Stat.
211 (emphasis added).8
And the Senate report, like the congressional findings,
specifically addressed itself to the enforcement, by means
67. The report agreed: "It would he, in short, difficult to devise a
body of law from the point of view of privacy or justicC' more totally
unsatisfactory in its consequenrPs." Id., at 69. The report then
strPsscd that Title III would provide the protection for print<·y lacking
under the prior law:
"The need for comprehensi\'e, fair and effective reform setting 1.miform
standards is obvious. New protectiom for privacy must be
enacted. Guidance and supervision must be given to State and
Federal law enforcement officers. This can only be accomplished
through national legislation. This the subcommittee proposes."
Ibid. (emphasis added).
8 "Paragraph (b) recognizes that to protect the privacy of wire
and oral communications, to protect the integrity of court and administrative
proceeding[sJ and to prevent the obstruction of interstate
commerce, it is necessary for Congress to define on a uniform
basis the circumstances and conditions under which the interception
of wire or oral communications may be authorized. It also finds
that all unauthorized interception of such communications should
be prohibited, as well as the use of the contents of unauthorized
50 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
of § 2515, of the limitations upon invasions of individual
privacy:
"Virtually all concede that the use of wiretapping
or electronic surveillance techniques by private
unauthorized hands has little justification
where communications are intercepted without the
consent of one of the participants. No one quarrels
with the proposition that the unauthorized use
of these techniques by law enforcement agents
should be prohibited. . . . Only by striking at all
aspects of the problem can privacy be adequately
protected. The prohibition, too, must be enforced
with all appropriate sanctions. Criminal penalties
have their part to play. But other remedies must
be afforded the victim of an unlawful invasion of
privacy. Provision must be made for civil recourise
for damages. The perpetrator must be denied the
fruits of hi,s unlawful actions in civil and criminal
proceedings. Each of these objectives is isought
by the proposed legislation." S. Rep. No. 1097,
supra, at 69 (emphasis added).
Section 2515 is thus central to the legislative scheme.
Its importance as a protection for "the victim of an unlawful
invasion of privacy" could not be more clear.9
interceptions as evidence in courts and administrative hearings."
Id., at 89 (emphasis added).
0 "Section 2515 of the new chapter imposes an evidentiary sanction
to compel compliance with the other prohibitions of the chapter.
It provides that intercepted wire or oral communications or evidence
derived therefrom may not be received in evidence in any proceeding
before any court, grand jury, department, officer, agency, regulatory
body, legislative ~ommittee, or other authority of the United
States, a State, or a political subdivision of a State, where the disclosure
of that information would be in violation of this chapter ....
[I] t is not limited to criminal proceedings. Such a suppression
rule is necessary and proper to protect privacy. The provision thus
GELBARD v. UNITED STATES 51
41 Opinion of the Court
The purposes of § 2515 and Title III as a whole would
be subverted were the plain command of § 2515 ignored
when the victim of an illegal interception is called as a
witness before a grand jury and asked questions based
upon that interception. Moreover, § 2515 serves not
only to protect the privacy of communications,1° but also
to ensure that the courts do not become partners to illegal
conduct: the evidentiary prohibition was enacted
also "to protect the integrity of court and administrative
proceedings." Consequently, to order a grand jury witness,
on pain of imprisonment, to disclose evidence that
§ 2515 bars in unequivocal terms is both to thwart the
congressional objective of protecting individual privacy
by excluding such evidence and to entangle the courts
in the illegal acts of Government agents.
In sum, Congress simply cannot be understood to have
sanctioned orders to produce evidence excluded from
grand jury proceedings by § 2515. Cm,trary to the Government's
assertion that the invasion of privacy is over
forms an integral part of the system of limitations designed to protect
privacy. Along with the criminal and civil remedies, it should
serve to guarantee that the standards of the new chapter will sharply
curtail the unlawful interception of wire and oral communications."
l d., at 96 ( citations omitted).
1° Congressional concern with the protection of the privacy of
communications is evident also in the specification of what is to be
protected. "The proposed legislation is intended to protect the privacy
of tlw communication itself . . ." ld., at 90. As defined
in Title Ill, "'contents,' when used with respect to any wire or
oral rommunication, includes any information concerning the identity
of thr parties to such communication or the existence, substancr,
purport, or meaning of that communication." 18 U.S. C.§ 2510 (8).
The definition thus "includer s] all aspects of the communication
itself. No aspect, including the idt>ntity of the parties, thr substance
of the communication between thrm, or the fa.et of the communication
itself, is excluded. The privacy of the communication to be protected
i~ intended to be comprehensive." S. Rep. No. 1097, supra, at 91.
52 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
and done with, to compel the testimony of these witnesses
compounds the statutorily proscribed invasion of their
privacy by adding to the injury of the interception the
insult of compelled disclosure. And, of course, Title
III makes illegal not only unauthorized interceptions, but
also the disclosure and use of information obtained
through such interceptions. 18 U. S. C. § 2511 (1);
see 18 U. S. C. § 2520. Hence, if the prohibition
of § 2515 is not available as a defense to the
contempt charge, disclosure through compelled testimony
makes the witness the victim, once again, of a
federal crime. Finally, recognition of § 2515 as a defense
"relieves judges of the anomalous duty of finding
a person in civil contempt for failing to cooperate with
the prosecutor in a course of conduct which, if pursued
unchecked, could subject the prosecutor himself to heavy
civil and criminal penalties." In re Grand Jury Proceedings,
Harrisburg, Pennsylvania (Egan), 450 F. 2d,
at 220 (Rosenn, J., concurring). "And for a court,
on petition of the executive department, to sentence
a witness, who is herself the victim of the illegal wiretapping,
to jail for refusal to participate in the exploitation
of that crime in violation of the explicit command
of Section 2515 is to stand our whole system of criminal
justice on its head." In re Evans, 146 U. S. App. D. C.
310, 323, 452 F. 2d 1239, 1252 (1971) (Wright, J.,
concurring).
II
Our conclusion that § 2515 is an available defense
to the contempt charge finds additional support in 18
U. S. C. § 3504, enacted as part of the Organized
Crime Control Act of 1970, 84 Stat. 935. Section 3504
is explicit confirmation that Congress intended that
grand jury witnesses, in reliance upon the prohibition
of § 2515, might refuse to answer questions based upon
the illegal interception of their communications.
41
GELBARD v. UNITED STATES 53
Opinion of the Court
Section 3504 provides:
" (a) In any ... proceeding in or before any .
grand jury ... .
" ( 1) upon a claim by a party aggrieved that evidence
is inadmissible because it is the primary
product of an unlawful act or because it was obtained
by the exploitation of an unlawful act, the
opponent of the claim shall affirm or deny the occurrence
of the alleged unlawful act."
Under§ 3504 (a) (2), disclosure of information relating to
the claim of inadmissibility is not mandatory if the "unlawful
act" took place before June 19, 1968, the effective
date of Title III. Under § 3504 (a) (3), there is
a five-year limitation upon the consideration of a claim
of inadmissibility based upon "the exploitation of an
unlawful act" that took place before June 19, 1968. Section
3504 (b), by reference to Title III, defines an "unlawful
act" as one involving illegal wiretapping or electronic
surveillance.11
11 Section 3504 provides in full:
"(a) In any trial. hearing, or othrr proreedinμ; in or before any
court, grand jury, departmrnt, officer, agency, regulatory body, or
other authority of the United States-
" (I) upon a claim by a party aggrieved that evidence is inadmissible
because it is the primary product of an unlawful act or
because it was obtained by the exploitation of an unlawful act, the
opponent of the claim shall affirm or deny the occurrence of the
alleged unlawful act;
"(2) disclosure of information for a determination if evidence is
inadmissible because it is the primary product of an unlawful net
occurring prior to June 19, 1968, or because it was obtained by the
exploitation of an unlawful act occurring prior to June 19, 1968,
shall not be required unless such information may be relevant to
a pending claim of surh inadmissibility; and
"(3) no claim shall be ronsidrrC'd that evidl'nce of an event is
inadmissible on the ground that such evidence was obtained by the
exploitation of an unlawful act occurring prior to June 19, 1968, if
54 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
Section 3504, then, establishes procedures to be followed
"upon a claim by a party aggrieved that evidence is
inadmissible because" of an illegal interception. And
§ 3504 tracks § 2515 in its application to grand jury proceedings.
Indeed, "[tlhe language used in defining the
types of proceedings, types of forums, and jurisdictions
in which section 3504 is applicable was taken
from 18 U. S. C. § 2515." S. Rep. No. 91-617, p.
154 (1969).12 In the application of§ 3504 to "any ...
proceeding in or before any ... grand jury," "a party
aggrieved" can only be a witness, for there is no
other "party" to a grand jury proceeding. Moreover,
a "claim ... that evidence is inadmissible" can only be
a claim that the witness' potential testimony is inadmissible.
Hence, § 3504, by contemplating "a claim by a
party aggrieved that evidence is inadmissible because" of
an illegal interception, necessarily recognizes that grand
jury witnesses may rely upon the prohibition of § 2515 in
claiming that the evidence sought from them is inadmissible
in the grand jury proceedings. Upon such a claim
by a grand jury witness, the Government, as "the opponent
of the claim," is required under§ 3504 (a)(l) to
such event occurred mor<:! than five years after such allegedly unlawful
act.
"(b) As used in this section 'unlawful act' means any act [involving]
the use of any electronic, mechanical, or other devicf' (as 1!efincd in
sretion 2510 (5) of this title) in violation of the Constitution or laws
of the Unitrd States or any rrgulation or standard promulgated
purs11ant thereto."
No question as to the constitutionality of § 3504 is raised in these
cases.
12 "The only exception is that section 350 [ 4] omits legislative committees."
S. Rep. No. 91-617, p. 154 (1969). In addition, the House
amended § 3504, as passed by the Senate, so that, unlike § 2515, it
"applies only to trials and other proef'edings conducted undn authority
of the United States." H. R. Rep. No. 91-1549, p. 51 ( 1970).
GELB..\RD v. UNITED STATES 55
41 Opinion of the Court
"affirm or deny the occurrence of the alleged" illegal interception.
Section 3504 thus confirms that Congress meant
that grand jury witnesses might defend contempt charges
by invoking the prohibition of § 2515 against the compelled
disclosure of evidence obtained in violation of
Title III.
The Government urges, however, that the procedures
prescribed in § 3504 are limited in application to claims
of inadmissibility based upon illegal interceptions that
took place before June 19, 1968, and that § 3504 cannot,
therefore, provide support for a construction of § 2515.
We disagree. While subsections (a) (2) and (a) (3) apply
only when the illegal interception took place before June
19, 1968, it is clear both from the face of § 3504 13 and
from its legislative history that subsection (a)(l), imposing
the duty upon "the opponent of the claim" to
"affirm or deny the occurrence of the alleged" illegal interception,
is not similarly limited.
The omission of the June 19, 1968, date from subsection
(a)(l) was not inadvertent. Subsection (a) (1)
was not in the original Senate bill, although the bill did
contain counterparts of present subsections (a) (2) and
(a) (3) without the June 19, 1968, or any other date limitation.
14 See Hearings before the Subcommittee on
Criminal Laws and Procedures of the Senate Committee
on the Judiciary on S. 30 et al., 91st Cong., 1st Sess., 102-
1
·' The references to June 19, 1968, appear only in subsections (a)
(2) and (a) (3). Subsection (a) (1) does not similar[~, limit the term
"unlawful aC't" with the phrase "occurring prior to June 19, 1968."
See n. 11, supra. It is thus plain on the face of § 3504 that Congress
did not make the duty imposed by subsection (a) (1) dependent
upon the date of the alleged illegal interception.
14 The Senate passed § 3504 in a form that, so far as is pertinent
to the is.,uc before us, differed from the section as finally enacted
only in that subsections (a) (2) and (a) (3) in the Senate veraion
were not limited in application to illegal interceptions that took place
before June 19, 1968. See S. Rep. 1\"o. 91-617, pp. 15, 70 (1969).
56 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
105 (1969). Subsection (a) (1) was added at the suggestion
of the Department of Justice. At that time the
Department followed the practice of searching Government
files for information about wiretaps and eavesdropping.
The Department advised the Senate Judiciary
Committee that while it had been "conduct(ing] such
examinations as a matter of policy even in cases where no
motion ha[ d] been filed ... defendants should be assured
such an examination by a specific requirement of law
rather than hav[ ing] to rely upon the continued viability
of a current policy." Id., at 553. The Senate report on
§ 3504 explained that ''since [subsection (a) (1)] requires
a pending claim as a predicate to disclosure, it sets aside
the present wasteful practice of the Department of Justice
in searching files without a motion from a defendant."
S. Rep. No. 91-617, p. 154 (1969).
The reason assigned in the Senate for enacting subsection
(a) (1) was thus as applicable to post- as it was
to pre-June 19, 1968, interceptions. The same was true
of the House. There subsection (a) (1) was supported
on the ground that it would be beneficial to the victims
of illegal interceptions. Senator McClellan, for example,
who testified before the House Subcommittee, indicated
that subsection (a) (I) "places upon the Government an
affirmative duty to answer a claim that evidence is inadmissible
because of unlawful investigative conduct."
"The first requirement [ of § 3504], that the Government
admit or deny the occurrence of the alleged invasion of
the defendant's rights, actually places or codifies a burden
upon the Government, rather than the defendant."
Hearings before Subcommittee No. 5 of the House Committee
on the Judiciary on S. 30 et al., 91st Cong., 2d
Sess., 84, 104 (1970). Other witnesses thought the provision
unnecessary.10 Indeed, one organization submitted
15 "[Subsection (a) (1)] provides that in an attack upon the admissibility
of evidence because it is the product of an unlawful
GELBARD v. UNITED STATES 57
41 Opinion of the Court
a report that disapproved subsection (a) (I) on the
ground that the Government should admit illegalities
without a prior claim. Id., at 562 (Section of Criminal
Law of the American Bar Association). It is also significant
that congressional questioning of a representative
of the Department of Justice at the hearings was directed
to the Department's views on the insertion of a date
limitation only in subsections (a) (2) and (a) (3). Id.,
at 659; see the Department's written response, id., at
675- 676.
The June 19, 1968, date was inserted in subsections
(a) (2) and (a) (3) after the conclusion of the House
hearings. It is apparent from the House report that
only subsections (a) (2) and (a) (3) of the Senate version
were to be limited by the June 19, 1968, date and
that subsection (a) (1) was to be operative without regard
to when the alleged illegal interception may have
taken place:
"Paragraph ( 1) provides that upon a claim by
an aggrieved party that evidence is inadmissible
because it is the primary product of an unlawful
act, or because it was obtained by the exploitation
of an unlawful act, the opponent of the claim
must affjrm or deny the occurrence of the alleged
unlawful act. Under this provision, upon a charge
by the defendant with standing to challenge the
alleged unlawful conduct, the Government would
be required to affirm or deny that an unlawful act
act . . . , the opponent of such rlaim shall affirm or deny the
alleged unlawful act . . . . In this respect [§ 3504] is 1mnerf'.,sary."
Hearings before Subcommittee No. 5 of the House Judiciary Committee
on S. 30 et al., 91st Cong., 2d Sess., 399 (1970) (rqiort of
the Committee on Federal Legislation of the New York County
Lawyers' Association). "That is the law now by Supreme Court
decision. [Subsection (a) (1)] adds nothing to what exists right
now." Id., at 513 (testimony of Lawrence Speiser, representing the
American Civil Liberties Union).
58 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
involving electronic surveillance had in fact occurred.
If such an unlawful act had in fact occurred,
paragraph (2), below, will govern disclosure
of the contents of the electronic surveillance records
or transcripts to the defendant and his counsel,
unless paragraph (3) applies." H. R. Rep. No.
91- 1549, p. 51 (1970).
This explanation demonstrates that "the opponent of
the claim" 16 has a duty to "affirm or deny" whenever
"a party aggrieved" "claim [s l ... that evidence is inadmissible
because it is" derived from an illegal interception.
The date June 19, 1968, becomes relevant only after it is
determined that an illegal interception took place and
an issue thus arises as to disclosure of information bearing
on the claim.11
16 Congress, of course, was primarily concerned with "certain
evidentiary problems created by electronic surveillance conducted
by the Government prior to the enactment of [Title III] on June 19,
1968, which provided statutory authority for obtaining surveillance
warrants in certain types of criminal investigations (18 U. S. C.
2516) ." H. R. Rep. No. 91-1549, p. 50 (1970). As the Senate
report noted, however, § 350'1 applies to " [ c J ivil as wrll as criminal
proceedings ... , regardless of whether a governmrnt or governmental
body or officer is or is not a party or witness." S. Rep.
No. 91-617, p. 154 (1969). Moreover, "unlawful ads," as drfined
in § 350'1 (b), may be "acts of private citizl'ns, as wdl as acts of
Federal or Statt> officials." Ibid.
17 "Under paragraph (2) disclosure of the information shall be
required to be made to a defendant who has demonstrated the
illegality of the electronic surveillance (occurring prior to June 19,
1968) and his standing where such information is or 'may be'
relevant to a claim of inadmissibility. In cases where the electronic
surveillance occurred on or after .June 19, 1968, disclosure is mandatory
where illegality and standing arc demonstrated. The provision
thus alters the procedure announced in Alderman v. United
States, 394 U. S. 165 [ ( 1969)] with respect to 'unlawful acts'
<'ommitted prior to June 19, 1968." H. R. Rep. No. 91-1549, p. 51
(1970).
GELBARD v. UNITED STATES 59
41 Opinion of the Court
III
The Government argues, finally, that while § 2515
could be construed to allow a grand jury witness to invoke
its prohibition as a defense to a contempt charge, "[i] f
this section were the only relevant portion of [Title
III]," Brief for the United States in No. 71-263, p. 19,
proceedings before grand juries are omitted from another
provision of Title III, § 2518 (10) (a), that authorizes
"[a]ny aggrieved person," 18 in specified types of proceedings,
to "move to suppress the contents of any intercepted
wire or oral communication, or evidence derived
therefrom." 10 But it does not follow from the asserted
omission of grand jury proceedings from the suppression
provision that grand jury witnesses cannot invoke § 2515
as a defense in a contempt proceeding under 28 U. S. C.
§ 1826 (a) ! 0 The congressional concern ,vith the appli-
18 An "aggrieved person," for purposes of § 2518 (10) (a), is "a
person who was a party to any interceptrcl wire or oral communication
or a person against whom the interception was directed." 18
U. S. C. § 2510 (11); see S. Rep. No. 1097, 90th Cong., 2d Sess.,
91,106 (1968).
19 Section 2518 (10) provides in pertinent part:
"(a) Any aggrieved person in any trial, hearing, or proceeding in or
before any court, department, officer, agency, regulatory body, or
other authority of the United States, a State, or a political subdivision
thereof, may move to suppress the contents of any intercepted
wire or oral communication, or evidence derived therefrom
.... "
While on its face § 2518 (10) (a) applies to grand jury proceedings,
when compared with the list of proceedings in § 2515, see n. 2, supra,
it appears that "grand jury" was omitted from the list in § 2518
(10) (a).
20 "Because no person is a party as such to a grand jury proceeding,
the provision does not envision the making of a motion to suppre.
c;s in the context of such a proceeding itself. . . . It is the
intent of the provision only that when a motion to suppress is
granted in another context, its scope may include use in a future
60 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
cability of § 2518 (lO)(a) in grand jury proceedings, so
far as it is discernible from the Senate report, was apparently
that defendants and potential defendants might
be able to utilize suppression motions to impede the issuance
of indictments: "Normally, there is no limitation on
the character of evidence that may he presented to a
grand jury, which is enforcible by an individual. [United
States v. Blue, 384 U. S. 251 (1966).] There is no
intent to change this general rule." S. Rep. No. 1097,
90th Cong., 2d Sess., 106 (1968). The "general rule," as
illustrated in Blue, is that a defendant is not entitled to
have his indictment dismissed before trial simply because
the Government "acquire[d] incriminating evidence
in violation of the [law]," even if the "tainted
evidence was presented to the grand jury." 384 U. S.,
at 255 and n. 3; see Lawn v. United States, 355 U. S.
339 ( 1958); Costello v. United States, 350 U. S. 359
(1956). But that rule has nothing whatever to do with
the situation of a grand jury witness who has refused
to testify and attempts to defend a subsequent charge
of contempt. Hence, we cannot agree that the Senate
report expressed the view that a grand jury witness
would be foreclosed from raising the § 2515 defense in a
contempt proceeding under§ 1826 (a).
Furthermore, grand jury witnesses do not normally
discover whether they may refuse to answer questions
by filing motions to suppress their potential testimony.
The usual procedure is, upon the Government's motion,
to have a court order a grand jury witness to testify
upon penalty of contempt for noncompliance. Section
1826 (a) embodies that traditional procedure. The asserted
omission of grand jury proceedings from § 2518
grand jury proceeding." S. Rep. No. 1097, 90th Cong., 2d Sess.,
106 (19/i8). This assertion is not ambiguous, for motions to suppress
evidence to be presented to a grand jury would presumably be
mltde in court.
GELBARD v. UNITED STATES 61
41 Opinion of the Court
( 10) (a) may well reflect congressional acceptance of
that procedure as adequate in these cases. Consequently,
we cannot suppose that Congress, by providing
procedures for suppression motions, intended to
deprive grand jury witnesses of the § 2515 defense that
would otherwise be available to them. Although the
Government points to statements in the Senate report
to the effect that § 2518 (10) (a) "limits" § 2515, we
read those statements to mean that suppression motions,
as a method of enforcing the prohibition of § 2515, must
be made in accordance with the restrictions upon forums,
procedures, and grounds specified in § 2518 (10) (a).21
The judgment of the Court of Appeals for the Ninth
Circuit in No. 71-110 is reversed, and the case is remanded
for further proceedings consistent with this opinion.22
The judgment of the Court of Appeals for the Third Circuit
in No. 71- 263 is affirmed.23
It -is so ordered.
21 "This definition [§ 2510 ( 11)] defines the class of those who are
entitled to invoke the suppression sanction of section 2515 . . .
through the motion to suppress provided for by section 2518 (10)
(a) .... " Id., at 91. "The provision [§ 2515] must, of course,
be read in light of section 2518 (10) (a) ... which defines the class
entitlrd to make a motion to suppress." Id., at 96. "This provision
r§ 2518 (10) (a)] must. be rrad in connection with SC<'tions 2515
and 2517 ... which it limits. It provides the remedy for the right
created by section 2515." Id., at 106.
22 Because the District Court and the Court of Appeals erroneously
held that grand jury witnesses have no right to invoke a § 2515 defense
in contempt proceedings under § 1826 (a), we need not decide
whether Gelbard and Parnas may refuse to answer questions if the
interceptions of their conversations were pursuant to court order.
That is a matter for the District Court to consider in the first instance.
23 The Court of Appeals vacated the judgments of contempt and
remanded for hearings to determine whether the questions asked
respondents resulted from the illegal interception of their communications.
450 F. 2d, at 217. Although, in this Court, the
62 OCTOBER TERM, 1971
DOUGLAS, .J., concurring 408 U.S.
MR. JusTICE DouGLAS, concurring.
Although I join in the opinion of the Court, I believe
that, independently of any statutory refuge which Congress
may choose to provide, the Fourth Amendment
shields a grand jury witness from any question ( or any
subpoena) which is based upon information garnered
from searches which invade his own constitutionally protected
privacy.
I would hold that Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 offends the
Fourth Amendment, as does all wiretapping and bugging,
for reasons which I have often expressed elsewhere.
E. g., Cox v. United States, 406 U. S. 934; Williamson
v. United States, 405 U. S. 1026; Katz v. United
States, 389 U. S. 347, 359; Berger v. New York, 388
U. S. 41, 64; Osborn v. United States, 385 U. S. 323,
340; Pugach v. Dollinger, 365 U.S. 458, 459; On Lee v.
United States, 343 U.S. 747, 762. In each of the present
cases a grand jury witness seeks to prove and suppress
suspected unconstitutional seizures of his own telephone
conversations. And, in every relevant respect, the
proceedings below were in striking parallel to those
in Silverthorne Lumber Co. v. United States, 251 U. S.
385.
In that case, after federal agents unlawfully seized
papers belonging to the Silverthornes and to their lumber
company, the documents were returned upon order of
the court. In the interim, however, the agents had
copied them. After returning the seized originals, the
prosecutor attempted to regain possession of them by
issuing a grand jury subpoena duces tecum. When the
petitioners refused to comply with the subpoena they
Government now denies that there was any overhearing, in view
of our affirmance that is a matter for the District Court to consider
in the first instance.
GELBARD v. UNITED STATES 63
41 DoUGLAS, ,J., concurring
were convicted of contempt. In reversing those judgments,
this Court, through Mr. Justice Holmes, held that
the Government was barred from reaping any fruit from
its forbidden act and wove into our constitutional fabric
the celebrated maxim that "ft l he essence of a provision
forbidding the acquisition of evidence in a certain way
is that not merely evidence so acquired shall not be used
before the Court but that it shall not be used at all."
251 U. S., at 392.
Petitioners Gelbard and Parnas and respondents Egan
and Walsh occupy positions which are virtually identical
to that of the Silverthornes and their company. They
desire to demonstrate that but for unlawful surveillance
of them the grand jury would not now be seeking testimony
from them. And, as in Silverthorne, they are the
victims of the alleged violations, seeking to mend no one's
privacy other than their own. Finally, here, as there,
the remedy pref erred is permission to refuse to render
the requested information.
Unless Silverthorne is to be overruled and uprooted
from those decisions which have followed it, such as
Nardone v. United States, 308 U. S. 338, 340-341;
Benanti v. United States, 355 U. S. 96, 103; Elkins v.
United States, 364 U. S. 206, 210; Mapp v. Ohio, 367
U. S. 643, 648; Wong Sun v. United States, 371 U. S.
471, 484-485; Har,ison v. United States, 392 U. S. 219,
222; and Alderman v. United States, 394 U.S. 165, 171,
177, these witnesses deserve opportunities to prove their
allegations and, if successful, to withhold from the Government
any further rewards of its "dirty business."
Olmstead v. United States, 277 U.S. 438, 470 (Holmes, J.,
dissenting).
The Solicitor General does not propose that Silverthorne
be overruled. Nor does he deny its remarkable similarity.
Indeed, his analysis of the constitutional issue
at stake here fails even to mention that landmark de64
OCTOBER TERM, 1971
DouaLAs, J., concurring 408U.S.
cision.1 And none of the nrecedents cited by him detract
from Silverthorne's vitality.'
Rather, the Government treats this decision as a "novel
1 At oral argument, counsel for the United States contended that
Silverthorne Lumber Co. v. United States, 251 U. S. 385, was distinguishable.
First, it was said that in these cases thrre has yet lwen
no showing of illegal surveillance. Tr. of Oral Arg. 26. The point
is, however, that these witnesses claim to be able to make such a
showing, although none of the trial courts below have permitted
hearings on the issue. Second, it was also argued that Silverthorne
was inapposite because there the very papers seized unlawfully were
the ones later sought under the court's subpoena. Ibid. But there
is little doubt that Mr . .Justice Holmes' reasoning would also have
relieved the Silverthorncs from testifying before the grand jury as to
the contents of thC' purloined papers.
2 Three of the cases cited by the Solicitor General stand for nothing
more than the rule that a defendant may not challenge prior to trial
the evidence from which the indictment was drawn. Costello v.
United States, 350 U. S. 359; Lawn v. United States, 355 U. S. 339;
United States v. Blue, 384 U. S. 251. To be sure, the other authorities
cited rejected various privileges from testifying but only for reasons
which are not in conflict with Silverthorne Lumber Co. v. United
States, supra. For example, in Murphy v. lVaterfront Comm'n,
378 U. S. 52; and Piemonte v. United States, 367 U. S. 556, in
light of our dispositions in those cases, no threatened constitutional
violation remained as a predicate for a privilege. For in Murphy we
eliminated the threat that testimony to a state grand jury given in
exchange for a state immunity grant could, despite the witness' fears
to the contrary, be used against him by other jurisdictions. And in
Piemonte the Fifth Amendment basis for declining to answer was dissolved
by the majority's finding that there had been a proper grant
of immunity. True, Goldstein v. United States, 316 U. S. 114, 121,
and Alderman v. United States, 394 U.S. 165, denied standing to defendants
to suppress the fruits of Fourth Amendment injuries to
others, but that issue is not presented hc•rc inasmuch as all of the8r
movants purported to be victims of intercepted conversations.
Finally, Blair v. United States, 250 U. S. 273, held that a grand jury
witness may not withhold evidence solely because he believes that
the statutes (which the grand jury suspects may have been violated)
are unconstitutional. That contention, of course, has not
been tendered by these grand jury witnesses. Moreover, Blair itself
GELBARD v. UNITED STATES 65
41 DouGLAS, J., concurring
extension" of Fourth Amendment protections, leaning
heavily upon the observation that the exclusionary rule
has never been extended to "provide that illegally seized
evidence is inadmissible against anyone for any purpose."
Alderman, supra, at 175. This aphorism is contravened,
concludes the Solicitor General, by any result permitting
a nondefendant to "suppress" evidence sought to be introduced
at another's trial or to withhold testimony from
a grand jury investigation of someone else.
To be sure, no majority of this Court has ever held
that "anything which deters illegal searches is thereby
commanded by the Fourth Amendment." Id., at 174.
But that concern is not at stake here. No one is attempting
to assert vicariously the rights of others. Here it is
only necessary to adhere to the basic principle that victims
of unconstitutional practices are themselves entitled
to effective remedies. For, "where federally protected
rights have been invaded, it has been the rule from the
beginning that courts will be alert to adjust their remedies
so as to grant the necessary relief." Bell v. Hood,
327 U. S. 678, 684. And see Bivens v. Si,x Unknown
Federal Narcotics Agents, 403 U. S. 388.
The fact that the rnovants below sought to withhold
evidence does not transform these cases into unusual ones.
A witness is often permitted to retain exclusive custody
of information where a contrary course v.-ould jeopardize
important liberties such as First Amendment guarantees,
Watkins v. United States, 354 U. S. 178; NAACP v.
Alabama, 357 U. S. 449, 463; Gibson v. Florida Legislative
Investigation Committee, 372 U. S. 539; Baird v.
State Bar of Arizona, 401 U. S. 1, 6-7; In re Stolar, 401
recognizes that "for special reasons a witness may be excused from
telling all that he know~." Id., at 281. "Special rrasons" presumably
was meant to include Fourth Amendment grounds, as was permitted
shortly thereafter in Silverthorne.
66 OCTOBER TERM, 1971
DouGLAS, J., concurring 408 u. s.
U.S. 23; Fifth Amendment privileges, Hoffman v. United
States, 341 U. S. 479, or traditional testimonial privileges.3
The same is true of Fourth Amendment authority to
withhold evidence, even from a grand jury. Hale v.
Henkel, 201 U.S. 43; Silverthorne, supra. No one would
doubt, for example, that under Bell v. Hood, supra, and
Bivens, supra (or Monroe v. Pape, 365 U. S. 167, where
state police were concerned), a telephone subscriber could
obtain an injunction against unlawful wiretapping of his
telephone despite the fact that such termination might
remove from the Government's reach evidence with which
it could convict third parties.
A contrary judgment today would cripple enforcement
of the Fourth Amendment. For, if these movants, who
the Solicitor General concedes are not the prosecutors'
targets, were required to submit to interrogation, then
they ( unlike prospective defendants) would have no
further opportunity to vindicate their injuries. More
generally, because surveillances are often "directed primarily
to the collecting and maintaining of intelligence
with respect to subversive forces, and are not an attempt
to gather evidence for specific criminal prosecutions,"
United States v. United States District Court, 407 U. S.
297, 318-319, the normal exclusionary threat of Weeks
v. United States, 232 U. S. 383, would be sharply attenuated
and intelligence centers would be loosed from virtually
every deterr~nt against abuse.4 Furthermore, even
3 E. g., Alexander v. United States, 138 U. S. 353 (lawyer-client);
Blau v. United States, 340 U. S. 332 (marital); United States v.
Reynolds, 345 U.S. 1 (military aircraft specifications).
• Our remark in United States v. United States District Court,
407 U.S. 297, 318-319, was our understanding only of the motivation
behind federal national security wiretapping. But the statistical evidence
shows that nonsecurity wirctapping also is seldom us<'<l to convict
criminals. In 1969, court-ordered federal wiretapping seized
44,940 conversations but only 26 convictions were obtained. In 1970,
GELBARD v. UNITED STATES 67
41 DouGI,AS, J., concurring
where the "uninvited ear" is used to obtain criminal convictions,
rather than for domestic spying, a rule different
from our result today would supply police with an added
incentive to record the conversations of suspected coconspirators
in order to marshal evidence against alleged
ringleaders. We are told that "[p]olice are often
tempted to make illegal searches during the investigations
of a large conspiracy. Once the police have established
that several individuals are involved, they may deem it
worthwhile to violate the constitutional rights of one
member of the conspiracy (particularly a minor member)
in order to obtain evidence for use against others."
White & Greenspan, Standing to Object to Search and
Seizure, 118 U. Pa. L. Rev. 333, 351 (1970) (footnotes
omitted). Because defendants are normally denied
"standing" to suppress evidence procured as a result of
invasions of others' privacy, today's remedy is necessary
to help neutralize the prosecutorial reward of such
tactics.
Today's remedy assumes an added and critical measure
of importance for, due to the clandestine nature of electronic
eavesdropping, other inhibitions on officers' abuse,
sue;h as the threat of damage actions, reform through the
political process, and adverse publicity, will be of little
avail in guarding privacy.
Moreover, when a court assists the Government in extracting
fruits from the victims of its lawless searches it
degrades the integrity of the judicial system. For
" [ n J othing can destroy a government more quickly than
its failure to observe its own la·ws, or worse, its disregard
of the charter of its own existence." Mapp v. Ohio, 367
U. S. 643, 659. For this reason, our decisions have emfoderal
court. orders permitted the seizure of 147,780 communications,
with 48 convictions. H. Schwartz, A Report on the Costs and
Benefits of Electronic Surveillance ii-v ( 1971).
68 OCTOBER TERM, 1971
DouGLAS, J., concurring 408 U.S.
braced the view that " [ t] he tendency of those who execute
the criminal laws of the country to obtain conviction
by means of unlawful seizures and enforced confessions
... should find no sanction in the judgments of the
courts, which are charged at all times with support of the
Constitution." Weeks v. United States, 232 U. S. 383,
392. As mentioned earlier, this principle was at the heart
of the Silverthorne decision. Later in his dissent in Olmstead
v. United States, 277 U. S., at 470, a case in which
federal wiretappers had violated an Oregon law,Mr.Justice
Holmes, citing Silverthorne, thought that both the officers
and the court were honor bound to observe the
state law: "If the existing code does not permit district
attorneys to have a hand in such dirty business it does
not permit the judge to allow such iniquities to succeed."
In the same case, Justice Brandeis, who was then alone
in his view that wiretapping was a search within the
meaning of the Fourth Amendment, phrased it this
way: "In a government of laws, existence of the government
will be imperilled if it fails to observe the law
scrupulously. Our Government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole
people by its example. Crime is contagious. If the
Government becomes a lawbreaker, it breeds contempt
for law; it invites every man to become a law unto
himself; it invites anarchy." I d., at 485.
In an entrapment case, Mr. Justice Frankfurter, with
whom Justices Harlan, BRENNAN, and I joined, thought
that "the federal courts have an obligation to set their
face against enforcement of the law by lawless means"
because " [ p] ublic confidence in the fair and honorable
administration of justice, upon which ultimately depends
the rule of law; is the transcending value at stake."
Sherman v. United States, 356 P. S. 369, 380 (concurring
in result); see also his opinion for the Court in Nardone
v. United States, 308 U. S. 338, 340-341. In a SelfGELBARD
v. UNITED STATES 69
41 '\VHI'l'E, J., concurring
Incrimination Clause decision, MR. JusTICE BRENNAN
(joined by MR. JUSTICE MARSHALL and myself) used
fewer words: "it is monstrous that courts should aid or
abet the lawbreaking police officer." Harris v. New York,
401 U. S. 222, 232 (dissenting opinion).
These standards are at v,ar with the Government's
claim that intelligence agencies may invoke the aid of
the courts in order to compound their neglect of constitutional
values. To be sure, at some point taint may
become so attenuated that ignoring the original blunder
will not breed contempt for law. But here judges are
not asked merely to overlook infractions diminished by
time and independent events. Rather, if these witnesses'
allegations are correct, judges are being invited to become
the handmaidens of intentional 5 police lawlessness
by ordering these victims to elaborate on their telephonic
communications of ·which the prosecutors would have no
knowledge but for their unconstitutional surveillance.
In summary, I believe that Silverthorne was rightly
decided, that it was rooted in our continuing policy to
equip victims of unconstitutional searches with effective
means of redress, that it has enjoyed repeated praise
in subsequent decisions, that it has not been seriously
challenged here, and that it requires that we affirm
the Third Circuit in Egan and Walsh and reverse the
Ninth Circuit in Gelbard and Parnas.
MR. JUSTICE ·wurTE, concurring.
Under 28 U. S. C. § 1826 (a) a ·witness who refuses to
testify "without just cause" may be held in contempt of
court. Here, grand jury witnesses are involved, and the
just cause claimed to excuse them is that the testimony
demanded involves the disclosure and use of communica-
5 As l\fr. Justice Fortas said, wirctapping "is usually the product of
calculated, official decision rather than the error of an individual
agent of the state." Alderman v. United States, 394 G. S., at 203.
70 OCTOBER TERM, 1971
\\'HITE, J., concurring 408U.S.
tions allegedly intercepted in violation of the controlling
federal statute and hence inadmissible under 18 U. S. C.
§ 2515.
The Vnited States asserts that§ 2515 affords no excuse
to grand jury witnesses under any circumstances. Reliance
is placed on § 2518 ( 10) ( a) and the legislative
history of the statute. I agree with the Court, however,
that at least where the Pnited States has intercepted
communications without a warrant in circumstances
where court approval was required, it is appropriate in
construing and applying 28 D.S. C. § 1826 not to require
the grand jury witness to answer and hence further the
plain policy of the wiretap statute. This unquestionably
works a change in the law with respect to the rights
of grand jury witnesses, but it is a change rooted in
a <'Omplex statute, the meaning of which is not immediately
obvious as the opinions filed today so tellingly
demonstrate.
Where the Government produces a court order for the
interception, however, and the witness nevertheless demands
a full-blown suppression heari11g to determine the
legality of the order, there may be room for striking a
different accommodation between the due functioning of
the grand jury system and the federal wiretap statute.
Suppression hearings in these circumstances would result
in protracted interruption of grand jury proceedings. At
the same time. prosecutors and other officers who have
been granted and relied on a court order for the intercept.
ion would be subject to no liability under the statute,
whC'ther the order is valid or 11ot; and, in any event, the
deterrent value of excluding the evidence will be marginal
at best. It is well, therefore, that the Court has left this
issue open for consideration by the District Court on remand.
See ante, at 61 n. 22.
GELBARD v. UNITED STATES 71
41 REHNQUIST, J., dissenting
Of course, where the Government officially denies the
fact of electronic surveillance of the witness, the matter
is at an end and the witness must answer.
MR. JUSTICE REHNQUIST, with whom THE CHIEF
JusTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE
POWELL join, dissenting.
Disposition of these cases depends on the sorting out of
admittedly conflicting implications from different sections
of the principal statute involved. The Court's
conclusion, while supportable if regard be had only for
the actual language of the sections, is by no means
compelled by that language. Its conclusion is reached
in utter disregard of the relevant legislative history,
and quite without consideration of the sharp break that
it represents with the historical modus operandi of the
grand jury. It is, in my opinion, wrong.
The Court states the question to be whether witnesses
threatened with contempt under 28 U. S. C. § 1826 (a)
"are entitled to invoke this prohibition of § 2515 as a
defense to contempt charges brought against them for
refusing to testify." Ante, at 43. The question as thus
framed by the Court has been so abstracted and refined,
and divorced from the particulars of these two cases,
as to virtually invite the erroneous answer that the
opinion of the Court gives.
Nor is it accurate to "assume," as the Court does, that
the Government's overhearing of these witnesses was
in violation of the applicable statute. Petitioner Gelbard
contended in the trial court that the United States
planned to use his electronically overheard conversations
as one basis for questioning him before the grand jury,
and so stated in a presentation to that court. The Govermnent
in a reply affidavit stated that whatever information
had been gathered as a result of electronic overhearing
had been obtained from wiretaps conducted
72 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408 U.S.
pursuant to court order as provided in 18 U. S. C. § 2518.'
Parnas, so far as this record shows, made no similar
allegation in the trial court. The Court of Appeals in
its opinion described the position taken by these witnesses
in the following language:
"When cited for contempt in the district court, each
attacked the constitutional validity of Section 2518,
and additionally urged that he should not be required
to testify until and unless first allowed to
inspect all applications, orders, tapes and transcripts
relating to such electronic surveillance and afforded
an opportunity to suppress the use before the grand
jury d any evidence so secured .... " 443 F. 2d
837, 838.
Thus what was presented to the trial court in this
proceeding under 18 U. S. C. § 1826 (a) was not a
neatly stipulated question of law, but a demand by the
petitioners that they be permitted to roam at will among
the prosecutor's records in order to see whether they
might be able to turn up any evidence indicating that
the Government's overhearing of their conversations
had been unauthorized by statute. In order to determine
whether this particular type of remedy is open to these
petitioners at this particular stage of potential criminal
proceedings it is not enough to recite, as the Court
does, that 18 U. S. C. § 2515 prohibits the use of illegally
overheard wire communications before grand
juries as well as before other governmental bodies. This
1 In the case of respondents Egan and Walsh, the Govl'rnment in
the District Court did not state whether it had engaged in electronic
surveillance. In this Court, however, the Government represented
that respondents Egan and Walsh had not been subjected to electronic
surveillance. In light of this development, I would remand their
case to the District Court in order to give the respondents another
opportunity to testify. For this reason, references to "petitioners"
throughout this opinion arc meant to be to only petitioners Grlbard
and Parnas.
GELBARD v. UNITED STATES 73
41 REHNQUIST, J., dissenting
proposition is not disputed. The far more difficult inquiry
posed by these facts is whether the granting to
these petitioners, at this particular stage of these proceedings,
of sweeping discovery as a prelude to a full
hearing on the issue of alleged unlawful surveillance
can fairly be inferred from the enactment by Congress
of the two statutes relied on in the Court's opinion.
I
It may be helpful at the outset to treat briefly the
background of 28 U. S. C. § 1826 (a). As the Court
notes, this provision was enacted as a part of the Organized
Crime Control Act of 1970, and the Senate Report
states that it was intended to codify the "present
practice" of the federal courts. S. Rep. No. 91-617, p. 148
( 1969). The existing practice of the federal courts prior
to the enactment of this section \vas based on Fed. Rule
Crim. Proc. 42 and on 18 U. S. C. § 401, both of which
dealt generally with the power of courts to punish for
contempt. The enactment of§ 1826 (a) appears to have
resulted from a desire on the part of Congress to treat
separately from the general contempt power of courts
their authority to deal with recalcitrant witnesses in court
or grand jury proceedings. Since, as the Senate Report
states, the enactment of this provision was designed to
"codify present practice" it is instructive to note the types
of claims litigated in connection with grand jury matters
under Rule 42 and 18 U. S. C. § 401 prior to the enactment
of this new section. So far as the reported decisions
of this Court and of the lower federal courts reveal,
prior litigation with respect to grand juries has dealt
almost exclusively with questions of privilege, and most
of these cases have dealt with issues of the privilege
against self-incrimination. While it is plain that the
respondent in such proceedings was entitled to a hearing
and to adduce evidence, it is equally plain that the
74 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408 U.S.
typical hearing wa.s short in duration and largely devoted
to the arguments of counsel on an agreed statement of
facts.2
Some of the flavor of the type of proceeding contemplated
under the prior practice is gleaned from the following
passage in the Court's opinion in Shillitani v.
United States, 384 r. S. 364, 370 ( 1966) ( citations
omitted):
"There can be no question that courts have inherent
po,,.ver to enforce compliance with their lawful
orders through civil contempt . . . . And it is
essential that courts be able to compel the appearance
and testimony of witnesses . . . . A grand jury
subpoena must command the same respect . . . .
Where contempt consists of a refusal to obey a
court order to testify at any stage in judicial proceedings,
the witness may be confined until compliance
.... "
These proceedings seem almost invariably to have
been short and summary in nature, not because the
defendant was to be denied a fair hearing, but because
the type of issue that could be raised at such a proceeding
was one which did not generally permit extensive
factual development. Even where a court of appeals
reversed a contempt adjudication because of the district
court's failure to allow the defendant to testify on
his own behalf with respect to material issues, there was
no hint of either the right to, or the necessity for, any
discovery proceedings against the Government. Hooley
v. United States, 209 F. 2d 219 (CAI 1954).
Congress was, of course, free to expand the scope of
inquiry in these proceedings, to enlarge the issues to
2 See, e. g., Blau v. United States, 340 U. S. 159 (1950); Rogers
v. United States, 340 U. S. 367 (1951); Curcio v. United States,
354 U. S. 118 (1957); United States v. George, 444 F. 2d 310 (CA6
1971); In re October 1969 Grand Jury, 435 F. 2d 350 (CA7 1970).
GELBARD v. UNITED STATES 75
41 REHKQUIST, J., dissenting
be tried, and to alter past practice in any other way
that it chose consistently with the Constitution. But
in view of the stated congressional intent to "codify
present practice" by the enactment of § 1826 (a), we
should require rather strong evidence of congressional
purpose to conclude that Congress intended to engraft
on the traditional and rather summary contempt hearings
a new type of hearing in which a grand jury witness
is accorded carte blanche discovery of all of the
Government's "applications, orders, tapes, and transcripts
relating to such electronic surveillance" before he
may be required to testify. 443 F. 2d, at 838.
II
Just as Congress was not writing on a clean slate in
the area of contempt hearings, it was not writing on
a clean slate with respect to the nature of grand jury
proceedings. These petitioners were called before a
grand jury that had been convened to investigate violations
of federal laws. We deal, therefore, not with
the rights of a criminal defendant in the traditional
adversary context of a trial, but with the status of
witnesses summoned to testify before a body devoted
to sifting evidence that could result in the presentment
of criminal charges. Just as the cases arising under
the antecedents of 28 U. S. C. § 1826 (a) suggest a limitation
on the type of issue which may be litigated in
such a proceeding, cases dealing with the role of the
grand jury stress the unique breadth of its scope of inquiry.
In Blair v. United States, 250 P. S. 273, 282
( 1919), this Court defined the vital investigatory f unction
of the grand jury:
"It is a grand inquest, a body with powers of investigation
and inquisition, the scope of whose inquiries
is not to be limited narrowly by questions
of propriety or forecasts of the probable result of
76 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408U.S.
the investigation, or by doubts whether any particular
individual will be found properly subject to an
accusation of crime. As has been said before, the
identity of the offender, and the precise nature of
the offense, if there be one, normally are developed
at the conclusion of the grand jury's labors,
not at the beginning .... "
Another passage from Blair pointed out the citizen's
obligation to obey the process of the grand jury:
"[I]t is clearly recognized that the giving of testimony
and the attendance upon court or grand jury
in order to testify are public duties which every
person within the jurisdiction of the Government
is bound to perform upon being properly summoned."
Id., at 281.
In Costello v. United States, 350 U.S. 359,362 (1956),
the Court traced the development of the English grand
jury and concluded that the probable intent of the
Framers of our Constitution was to parallel that institution
as it had existed in England where "[g]rand jurors
were selected from the body of the people and their
work was not hampered by rigid procedural or evidential
rules." 350 U. S., at 362. The Court in Costello was
at pains to point out the necessity of limiting the nature
of challenges to evidence adduced before a grand jury
if that body were to retain its traditional comprehensive
investigative authority:
"If indictments were to be held open to challenge
on the ground that there was inadequate or incompetent
evidence before the grand jury, the resulting
delay would be great indeed. The result of such
a rule would be that before trial on the merits a
defendant could always insist on the kind of preliminary
trial to determine the competency and
41
GELBARD v. UKITED STATES 77
REHNQUIST, J., dissenting
adequacy of the evidence before the grand jury."
350 U. S., at 363.
While this general statement applied by its terms
only to one who was ultimately indicted by the grand
jury, its reasoning applies with like force to one who
seeks to make an evidentiary challenge to grand jury
proceedings on the basis of his status as a prospective
witness. Indeed, time-consuming challenges by witnesses
during the course of a grand jury investigation
would be far more inimical to the function of that body
than would a motion to dismiss an indictment after it
had concluded its deliberations.
In Lawn v. United States, 355 U. S. 339 (1958), the
Court refused to accord to petitioners the hearing, prior to
trial, on the issue of whether or not a grand jury which
indicted them had made direct or derivative use of materials
the use of which by an earlier grand jury had
been held to violate the petitioners' privilege against
self-incrimination. In supporting its conclusion that the
petitioners should not even be accorded a hearing to
sustain these contentions, the Court quoted a passage
from Costello describing the grand jury as
" '[an l institution, in ·which laymen conduct their
inquiries unfettered by technical rules. Neither justice
nor the concept of a fair trial requires such a
change. In a trial on the merits, defendants are
entitled to a strict observance of all the rules designed
to bring about a fair verdict. Defendants
are not entitled, however, to a rule which would
result in interminable delay but add nothing to
the assurance of a fair trial.' " 355 U. S., at 350.
It seems to me to be clear beyond cavil from these
cases that prior to the enactment of the Omnibus Crime
Control and Safe Streets Act of 1968, a hearing such as
78 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408U.S.
that which the Court awards these petitioners was not
only unauthori,1,ed by law, but completely contrary to the
ingrained principles which have long governed the functioning
of the grand Jury.
III
When Congress set out to enact the two statutes on
which the Court relies, it was certainly not with any
announced intent to change the nature of contempt
hearings relating to grand jury proceedings, or to change
the modus operandi of the grand jury. Instead, largely
in response to the decisions of this Court in Berger v.
New York, 388 U. S. 41 (1967), and Katz v. United
States, 389 U. S. 347 (1967), Congress undertook to
draft comprehensive legislation both authorizing the use
of evidence obtained by electronic surveillance on specified
conditions, and prohibiting its use otherwise. S.
Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). The ultimate
result was the 1968 Act. Critical to analysis of the
issue involved here are ~§ 2515 and 2518 (10) (a) of that
Act, which provide in pertinent part as follows:
"Whenever any wire or oral communication has
been intercepted, no part of the contents of such
communication and no evidence derived therefrom
may be received in evidence in any trial, hearing,
or other proceeding in or before any court, grand
jury, department, officer, agency, regulatory body,
legislative committee, or other authority ... if the
disclosure of that information would be in violation
of this chapter." § 2515.
"Any aggrieved person in any trial, hearing, or
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of
the United States, a State, or a political subdivision
thereof, may move to suppress the contents of any
41
GELBARD v. UNITED STATES 79
REHNQUIST, J., dissenting
intercepted wire or oral communication, or evidence
derived therefrom, on the grounds that-
"(i) the communication was unlawfully intercepted;
"(ii) the order of authorization or approval under
which it was intercepted is insufficient on its face;
or
"(iii) the interception was not made in conformity
with the order of authorization or approval. ... "
§ 2518 (10) (a).
Here is presented at the very least an implied conflict
between two separate sections of the same Act.
Section 2515 proscribes generally the use of unlawfully
intercepted communications as evidence before a number
of specified bodies, including a grand jury. Section
2518 ( 10) (a) provides for the type of hearing that
petitioners sought and were denied by the District Court;
it provides such hearings in connection with a number
of specified legal proceedings, but it conspicuously omits
proceedings before a grand jury. The method by which
the Court solves this dilemma is to state that if petitioners
succeed after their discovery in establishing their
claim of unlawful electronic surveillance, their questioning
before the grand jury on the basis of such electronic
surveillance would violate § 2515 as, of course, it presumptively
would. Therefore, says the Court, petitioners
must be entitled to the discovery and factual
hearing which they seek, even though § 2518 (10) (a)
rather clearly denies it to them by implication.
A construction which I believe at least equally plausible,
based simply on the juxtaposition of the various
sections of the statute, is that § 2515 contains a basic
proscription of certain conduct, but does not attempt
to specify remedies or rights arising from a breach of
that proscription; the specification of remedies is left
80 OCTOBER TERM, 1971
REHNQUIST, J ., dissenting 408 U.S.
to other sections. Other sections provide several remedies;
criminal and civil sanctions are imposed by §§ 2511
and 2520, whereas § 2518 (10) (a) accords a right to a
suppression hearing in specified cases. Thus the fact
that one who may be the victim of alleged unlawful
surveillance on the part of the Government is not accorded
an Alderman-type suppression hearing (Alderman
v. United States, 394 U. S. 165 (1969)) under the
provisions of § 2518 (10) (a) is not left remediless to
such a degree that it must be presumed to have been an
oversight; he is remitted to the institution of civil proceedings,
or the filing of a complaint leading to the
institution of a criminal prosecution. While the latt€r
two remedies may not be as efficacious in many situations
as a suppression hearing, the remission of an aggrieved
party to those remedies certainly does not render
nugatory the general proscription contained in § 2515.
The omission of "grand jury" from the designated
forums in § 2518 (10) (a) is not explainable on the basis
that though the testimony is sought to be adduced before
a grand jury, the motion to suppress would actually be
made in a court, which is one of the forums designated
in § 2518 (lO)(a). The language "in any trial, hearing,
or proceeding in or before" quite clearly refers to the
forum in which the testimony is sought to be adduced.
But even more significant is the inclusion among the designated
forums of "department," "officer," "agency," and
"regulatory body." Congress has almost without exception
provided that issues as to the legality and propriety
of subpoenas issued by either agencies or executive departments
should be resolved by the courts. It has
accomplished this result by requiring the agency to bring
an independent judicial action to enforce obedience to its
subpoena. See, e. g., 15 U. S. C. § 79r, Public Utility
Holding Company Act of 1935; 15 U. S. C. § 78u, Securities
Exchange Act of 1934; 41 U.S. C. §§ 35-45, WalshGELBARD
v. UNITED STATES 81
41 REHNQUIST, J., dissenting
Healey Act; 50 U. S. C. App. § 2155, Defense Production
Act of 1950; 47 r. S. C. §§ 409 (f) and (g), Communications
Act of 1934; 46 U. S. C. § 1124, Merchant Marine
Act, 1936; 26 U. S. C. § 7604, Internal Revenue Code of
1954; 16 U. S. C. § 825f (c), Electric Utility Companies
Act; 15 U.S. C.§ 717m (d), 1\'atural Gas Act; 7 U.S. C.
§ 51111, Tobacco Inspection Act. This general mode of
enforcement of agency investigative subpoenas was discussed
in the context of the Fair Labor Standards Act in
Oklahoma Press Publishing Co. v. Walling, 327 U. S.
186 (1946).
Thus, if Congress in § 2518 had intended to focus on the
forum in which the hearing as to the legality of the subpoena
is to be determined, rather than the forum in which
the testimony is sought to be adduced, it would have
omitted not only grand juries, but departments, officers,
agencies, and regulatory bodies as well from the coverage
of § 2518 (IO)(a). For questions as to the legality of
subpoenas issued by all these bodies are resolved in the
courts. By omitting only grand juries in § 2518, Congress
indicated that it was dealing with the forum in
which the testimony was sought to be adduced, and that
the suppression hearing authorized by the section was
not to be available to grand jury witnesses.
In the light of these conflicting implications from
the statutory language itself, resort to the legislative history
is appropriate. Passages from the legislative history
cited by the Court in its opinion do not focus at all on
the availability of a suppression hearing in grand jury
proceedings; they simply speak in general terms of the
congressional intent to prohibit and penalize unlawful
electronic surveillance, of which intent there can, of
course, be no doubt. But several parts of the legislative
history address themselves, far more particularly than
any relied upon by the Court in its opinion, to the
actual issue before us. The Senate Report, for example,
82 OCTOBER TER~l, 1971
REHNQUIST, J., dissenting 408 U.S.
indicates as plainly as possible that the exclusion of
grand juries from the language of § 2518 (10) (a) was
deliberate:
"This provision [ § 2518 ( 10 )(a)] must be read in
connection with sections 2515 and 2517, discussed
above, which it limits. It provides the remedy for
the right created by section 2515. Because no person
is a party as such to a grand jury proceeding, the
provision does not envision the making of a motion
to suppress in the context of such a proceeding itself.
Normally, there is no limitation on the character
of evidence that may be presented to a grand
jury, which is enforcible by an individual. [ United
States v. Blue, 384 U. S. 251 (1966).] There is
no intent to change this general rule. It is the
intent of the provision only that when a motion
to suppress is granted in another context, its scope
may include use in a future grand jury proceeding."
S. Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968).
(Emphasis added.)
There is an intimation in the opinion of the Court
that the reason this language was used may have been
that grand juries do not pass upon motions to suppress,
while courts do. This intimation is not only inconsistent
with the language of the section itself, as pointed out,
supra, at 80, but it attributes to the drafters of the report
a lower level of understanding of the subject matter with
which they were dealing than I believe is justified. It
is also rather squarely contradicted by the statement that
there is no limitation on the character of evidence that
rnay be presented to a grand jury "which is enforcible
by an individual." Had the report meant to stress the
presumably well-known fact that grand juries do not
themselves grant motions to suppress, it would not have
GELBARD v. UNITED ST ATES 83
41 REHNQUIST, J., dissenting
used that language, nor would it have cited United States
v. Blue, 384 U. S. 251 (1966).
The fact that the report states the reason for the
policy adopted in terms of the rights of an "individual,"
rather than in terms of the rights of a "defendant,"
makes the Court's discussion of the doctrine of various
cases, ante, at 60, of doubtful help in construing the
statute. Whatever United States v. Blue, supra, may
be said to "hold" after careful analysis by this Court,
the drafters of the Senate Report undoubtedly took
it to stand for the proposition for which they cited
it. As stated by Mr. Justice Frankfurter, concurring
in Green v. United States, 356 U. S. 165, 189:
"The fact that scholarship has shown that historical
assumptions regarding the procedure for punishment
of contempt of court were ill-founded, hardly
wipes out a century and a half of the legislative
and judicial history of federal law based on such
assumptions."
Not only does the report dealing with § 2518 (lO)(a)
make clear that it is to be construed in connection with
§ 2515, which it limits, but the section of the same report
dealing with § 2515 re-emphasizes this conclusion.
Speaking of the latter section, the report says:
"The provision must, of course, be read in light of
section 2518 (10) (a) discussed below, which defines
the class entitled to make a motion to suppress. It
largely reflects existing law. . . . Nor generally
[is there any intention] to press the scope of the
suppression rule beyond present search and seizure
law. See Walder v. United States, 347 U. S. 62
( 1954). . . . The provision thus forms an integral
part of the system of limitations designed
to protect privacy. Along with the criminal and
84 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408U.S.
civil remedies, it should serve to guarantee that
the standards of the new chapter will sharply curtail
the unlawful interception of wire and oral
communications." S. Rep. No. 1097, 90th Cong.,
2d Sess., 96 (1968).
The conclusion that § 2518 (10) (a) is the exclusive
source of the right to move to suppress is further fortified
by the Senate Report's comment on § 2510 (11) of
the Act, which defines an "aggrieved person" as one
who is a party to an "intercepted wire or oral communication
or a person against whom the interception
was directed." The Senate Report, p. 91, states:
"This definition defines the class of those who are
entitled to invoke the suppression sanction of section
2515 discussed below, through the motion to suppress
provided for by section 2518 (lO)(a), also discussed
below. It is intended to reflect existing law .... "
(Citations omitted.) (Emphasis added.)
Finally, § 2518 (9) requires the Government to provide
to each party to "any trial, hearing or other proceeding"
a copy of the court order authorizing surveillance
if the Government intends to use the fruits thereof.
The Senate Report, p. 105, states:
" 'Proceeding' is intended to include all adversary
type hearings. It would not include a grand
jury hearing. Compare [United States v. Blue,
supra]."
If § 2515 of the Omnibus Crime Control and Safe
Streets Act of 1968 stood alone without any informative
legislative history, the Court's conclusion ·with respect
to the rights of these petitioners would be plainly correct.
If the conflicting implications from two sections
of the same statute were present in a regulatory scheme
which was to stand by itself, rather than to be superimposed
on procedures such as contempt hearings and
GELBARD v. UNITED STATES 8.5
41 REHNQUIST, J., dissenting
institutions such as the grand jury, the Court's conclusion
would at least be tenable. But when the Court
concludes that Congress, almost in a fit of absentmindedness,
has drastically enlarged the right of potential grand
jury witnesses to avoid testifying, and when such a conclusion
is based upon one of two ambiguous implications
from the language of the statute, and is contrary to
virtua11y every whit of legislative history addressed to
the point in issue, I think its conclusion is plainly wrong.
IV
The Court seeks to bolster its reasonmg by reliance
upon 18 U. S. C. § 3504 (a)(l), which was a part of
the Organized Crime Control Act of 1970. That section
provides in pertinent part as follows:
''(a) In any ... proceeding ... before any ...
grand jury ...
" ( 1) upon a claim by a party aggrieved that
evidence is inadmissible because it is the primary
product of an unlawful act or because it was obtained
by the exploitation of an unlawful act, the
opponent of the claim shall affirm or deny the occurrence
of the alleged unlawful act."
Assuming, arguendo, that this section does apply to
petitioners in No. 71-110, the record in the District Court
and the opinion of the Court of Appeals clearly show
that only Gelbard made what might be called a "claim"
within the language of the section, and that the Government
in its response did "affirm or deny" the occurrence
of the alleged unlawful act; in fact, the Government
denied the occurrence of the unlawful act. This
should be sufficient for disposition of the case as to these
petitioners.
The Court, without giving much guidance to those
who would seek to follow the path by which it reaches
the conclusion, concludes that this section "confirms that
86 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408 U.S.
Congress meant that grand jury witnesses might defend
contempt charges by invoking the prohibition of § 2515
against the compelled disclosure of evidence obtained
in violation of Title III." If the Court means to say
any more than that, under the circumstances specified
in § 3504, the Government must affirm or deny, I am at
a loss how it extracts additional requirements from the
language used by Congress in that section.
But even if the Court were correct in deciding that
§ 3504 (a) (I) requires more than it says of the Government,
I believe the Court errs in deciding that this
section applies at all to these petitioners. Title VII
as enacted actually consists of two parts, A and B. Part
A is a series of findings by Congress, reading as follows:
"The Congress finds that claims that evidence offered
in proceedings was obtained by the exploitation
of unlawful acts, and is therefore inadmissible
in evidence, (I) of ten cannot reliably be determined
when such claims concern evidence of events occurring
years after the allegedly unlawful act, and
(2) when the allegedly unlawful act has occurred
more than five years prior to the event in question,
there is virtually no likelihood that the evidence
offered to prove the event has been obtained
by the exploitation of that allegedly unlawful act."
§ 701, 84 Stat. 935.
The House Report (to accompany S. 30) contains
this comment on Part A:
"This section contains a special finding relating,
as do the following sections of the title, to certain
evidentiary problems created by electronic surveillance
conducted by the Government prior to the
enactment of Public Law 90-351 on June 19, 1,968,
which provided statutory authority for obtaining
surveillance warrants in certain types of criminal
41
GELBARD v. UNITED STATES 87
REHNQUIST, J., dissenting
investigations." H. R. Rep. No. 91-1549, p. 50
(1970). (Emphasis supplied.)
The same report, in its introduct-Ory discussion of Title
VII, contains the following statement:
"Title VII intends to limit disclosure of information
illegally obtained by the Government to defendants
who seek to challenge the admissibility
of evidence because it is either the primary or indirect
production [sic] of such an illegal act. The
title also prohibits any challenge to the admissibility
of evidence based on its being the fruit of an unlawful
governmental act, if such act occurred 5
years or more before the event sought to be proved.
As amended by the committee, the application of
title VII is limited to Federal judicial and administrative
proceedings, and to electronic or mechanical
surveillance which occurred prior to June 19, 1968,
the date of enactment of the Federal wiretapping
and electronic surveillance law (chapter 119, title
18, United States Code)." Id., at 34. (Emphasis
supplied.)
The Senate Report, too, casts § 3504 (a) ( 1) in quite
a different light from that in which the Court puts it:
"Lastly, it should be noted that nothing in section
3504 (a)(l) is intended to codify or change present
law defining illegal conduct or prescribing requirements
for standing to object to such conduct or to use
of evidence given under an immunity grant. See,
e. g., Gfordano v. United States, 394 U. S. 310
(1969); Alderman v. United States, 394 U. S. 165
(1969). Nevertheless, since it requires a pending
clnim a.~ a predicate to di_.sclosure, -it sets aside the
present wasteful practice of the Department of Justice
in searching files without a motion from a de88
OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408 u. s.
fendant . ... " S. Rep. No. 91-617, p. 154 (1969).
(Emphasis supplied.)
These conclusions in the Senate Report are supported
by statements of the bill's managers in the House during
the time it was being debated. Congressman Poff explained
Title VII as follows:
"Title VII of S. 30 ... would, first, reverse the
Supreme Court's decision in Alderman v. United
States, 394 U. S. 165 (1969) requiring, under its
supervisory power, the disclosure of Government files
in criminal trials, and ... would, second, set a 5-year
'statute of limitations' on inserting issues dealing
with the 'fruit of the poisonous tree' in similar cases."
116 Cong. Ree. 35192.
Congressman Celler explained the amendments incorporating
the pre-June 19, 1968, time limitation into subsections
(a)(2) and (a) (3) of § 3504 that had been
made by a subcommittee of the House Judiciary Committee
in these words:
"As amended by the committee, the application
of title VII is limited to Federal judicial and administrative
proceedings, and to electronic or mechanical
surveillance which occurred prior to June
19, 1968, the date of enactment of the Federal
wiretapping and electronic surveillance law-chapter
119, title XVIII, United States Code." Id., at 35196.
Even more specific was the explanation of the amendment
made by Congressman Poff on the floor of the
House after the time provisions had been included:
"TITLE VII - LITIGATION CONCERNING
SOURCES OF EVIDENCE
"Mr. Chairman, title VII of the Organized Crime
Control Act is designed to regulate motions to suppress
evidence in certain limited situations where
41
GELBARD v. UNITED STATES 89
REHNQUIST, J., dissenting
the motion is based upon unlawful electronic eavesdropping
or wiretapping which occurred prior to the
enactment of the Federal electronic surveillance
laws on June 19, 1968 ....
"Where there was in fact an unlawful overhearing
prior to June 19, 1968, the title provides for
an in camera examination of the Government's
transcripts and records to determine whether they
may be relevant to the claim of inadmissibility ....
To the extent that the court is permitted to determine
relevancy in an ex parte proceeding, the title
will modify the procedure established by the Supreme
Court in Alderman v. United States [ citation
omitted] ....
"As I have indicated, the title applies only to
disclosures where the electronic surveillance occurred
prior to June 19, 1968. It is not necessary
that it apply to disclosure where an electronic surveillance
occurred after that date, because such disclosure
will be mandated, not by Alderman, but by
section 2518 of title 18, United States Code, added
by title III of the Omnibus Crime Control and
Safe Streets Act of 1968. Section 2518 ( 10) [(a)]
provides a specific procedure for motions to suppress
the contents of any intercepted wire or oral
communication, or evidence derived therefrom, on
the grounds that the communication was unlawfully
intercepted, that the authorization for the interception
was insufficient, or that the interception was
not made in conformity with the authorization obtained.
It provides, insofar as the disclosure of
intercepted communications is concerned, that upon
the filing of a motion to suppress by an aggrieved
person the trial judge may in his discretion make
available to such person and his counsel for inspec90
OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408U.S.
tion such portions of an intercepted communication,
or evidence derived therefrom, as the judge
determines to be in the interest of justice-see
Senate Report No. 1097, 90th Congress, 2d Session
106, 1968. The provisions of this title will, there-
! ore control the disclosure of transcripts of electronic
surveillances conducted prior to June 19, 1968.
Thereafter, existing statutory law, not Alderman, will
control. Consequently, in view of these amendments
to title VII, its enactment, in conjunction with the
provisions of title III of the 1968 act, provides the
Federal Government with a comprehensive and integrated
set of procedural rules governing suppression
litigation concerning electronic surveillance."
Id., at 35293-35294. (Emphasis added.)
The weight of the findings actually enacted by Congress
in Part A and the uniform tenor of the legislative
history outweigh, in my opinion, the ambiguity arising
from the failure to actually include a cutoff date in
§ 3504 (a)(l).
Section 3504 (a) ( 1) by its terms, even if read totally
out of its context and background, as the Court seeks
to do, affords these petitioners no help because the Government
has complied with its requirements in these
cases. But more importantly, the entire thrust of the
findings actually adopted by Congress, and of the reports
of both Houses, makes it as plain as humanly possible
that this section was intended as a limitation on
existing rights of criminal defendants, not as an enlargement
of them. Congress, displeased with the effect of
this Court's decision in Alderman, supra, desired to put
a statute of limitations type cutoff beyond which the
Government would not be required to go in time in
order to disprove taint. Equally displeased with the
policy adopted by the Government of searching its files
for evidence of taint even when none had been alleged
GELBARD v. UNITED STATES 91
41 REHNQUIST, J., dissenting
by the defendant, it sought to put a stop to that practice
by requiring the Government to "affirm or deny"
only where there is "a claim by a party aggrieved that
evidence is inadmissible." Understanding of this background
not only affords a complet€ explanation of the
language used by Congress in this section, but illustrates
the palpable error into which the Court has fallen in
construing it. The Court has at least figuratively stood
on its head both the language and the legislative history
of this section in order to conclude that it was
intended to expand the rights of criminal defendants.
V
Neither the Omnibus Crime Control and Safe Streets
Act of 1968 nor the Organized Crime Control Act of 1970,
when construed in accordance with the canons of statutory
construction traditionally followed by this Court,
supports the expansive and novel claims asserted by these
petitioners. The Court having reached a contrary conclusion,
I respectfully dissent.
92 OCTOBER TERM, 1971
Opinion of the Court 40S U.S.
POLICE DEPARTMENT OF THE CITY OF
CHICAGO ET AL. v. MOSLEY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 70--87. Argued .January 19, 1972-Decided June 26, 1972
City ordinance prohibiting all picketing within 150 feet of a school,
except peaceful picketing of any school involved in a labor dispute,
found by the Court, of Appeals to be unconstitutional because overbroad,
held violative of the Equal Protection Clause of the Fourteenth
Amendment since it makes an impermissible distinction
between peaceful labor picketing and other peaceful picketing.
Pp. 94-102.
432 F. 2d 1256, affirmed,
MARSHALL, J., delivered the opinion of the Court, in which BURGER,
C. J., and DouGLAS, BRENNAN, STEWART, WHITE, and POWELL, JJ.,
joined. BuRuER, C .. J., filed a concmring opinion, post, p. 102.
BucK11rnN and REHNQUIST, JJ., concurred in the result.
Richard L. Curry argued the cause for petitioners.
With him on the briefs were William R. Quinlan and
Edmund Hatfield.
Harvey J. Barnett argued the cause for respondent.
With him on the brief were Ronald L. Barnard and Hal
M. Brown.
MR. JUSTICE MARSHALL delivered the opinion of the
Court.
At issue in this case is the constitutwnality of the
following Chicago ordinance:
"A person commits disorderly conduct when he
knowingly:
"(i) Pickets or demonstrates on a public way within
150 feet of any primary or secondary school build92
POLICE DEPART2\'IEKT OF CHICAGO v. MOSLEY 93
Opinion of the Court
ing while the school is in session and one-half hour
before the school is in session and one-half hour
after the school session has been concluded, provided
that this subsection does not prohibit the
peaceful picketing of any school involved in a labor
dispute .... " Municipal Code, c. 193-1 (i).
The suit was brought by Earl Mosley, a federal postal
employee, who for seven months prior to the enactment
of the ordinance had frequently picketed Jones
Commercial High School in Chicago. During school
hours and usually by himself, Mosley would walk the
public sidewalk adjoining the school, carrying a sign
that read: "Jones High School practices black discrimination.
Jones High School has a black quota." His
lonely crusade was always peaceful, orderly, and quiet,
and was conceded to be so by the city of Chicago.
On March 26, 1968, Chapter 193-1 (i) was passed,
to become effective on April 5. Seeing a newspaper
announcement of the new ordinance, Mosley contacted
the Chicago Police Department to find out ho".r the
ordinance would affect him; he was told that, if his
picketing continued, he would be arrested. On April 4,
the day before the ordinance became effective, Mosley
ended his picketing next to the school.1 Thereafter,
he brought this action in the United States District
Court for the Northern District of Illinois, seeking declaratory
and injunctive relief, pursuant to 28 U. S. C.
1 O('casionally, thereafter, Mosley would picket across the street,
outside the 150-foot zone. At the hearing below, :t\fosley testified
that "when I was across the street from the srhool, 150 feet away,
you cannot hardly see me. The question that all of the people
asked me was, 'Where is the school located?' They don't even see
the srhool arross the street, you know. So, what it does, it takes
away a rertain amount of the effectiveness . . . . [W]hen I am
across the strret, I am sort of out of the picture .... " App.
24-25.
94 OCTOBER TER:VI, 1971
Opinion of the Court 408 U.S.
§ 2201 and 42 U. S. C. § 1983. He alleged a violation
of constitutional rights in that ( 1) the statute punished
activity protected by the First Amendment; and (2) by
exempting only peaceful labor picketing from its general
prohibition against picketing, the statute denied
him "equal protection of the law in violation of the
First and Fourteenth Amendments .... "
After a hearing, the District Court granted a directed
verdict dismissing the complaint. The Seventh Circuit
reversed, holding that because the ordinance prohibited
even peaceful picketing next to a school, it was
overbroad and therefore "patently unconstitutional on
its face." 432 F. 2d 1256, 1259 (1970). We granted
certiorari, 404 U. S. 821 (1971), to consider this case
along with Grayned v. City of Rockford, post, p. 104,
in which an almost identical ordinance was upheld by
the Illinois Supreme Court, 46 Ill. 2d 492, 496, 263 N. E.
2d 866, 868 (1970). We affirm the judgment of the
Seventh Circuit, although we decide this case on the
ground not reached by that court. We hold that the
ordinance is unconstitutional because it makes an impermissible
distinction between labor picketing and other
peaceful picketing.
I
The city of Chicago exempts peaceful labor picketing
from its general prohibition on picketing next to a school.2
The question we consider here is whether this selective
exclusion from a public place is permitted. Our answer
is "N' o."
Because Chicago treats some picketing differently
from others, we analyze this ordinance in terms of the
2 By its terms, the statute exempts "the peaceful picketing of any
school involved in a Labor dispute." It is undisputed that this
exemption applies only to Tabor picketing of a school involved in a
labor dispute.
POLICE DEPARTMENT OF CHICAGO v. MOSLEY 95
92 Opinion of the Court
Equal Protection Clause of the Fourteenth Amendment.
Of course, the equal protection claim in this case is closely
intertwined with First Amendment interests; 3 the Chicago
ordinance affects picketing, which is expressive
conduct; moreover, it does so by classifications formulated
in terms of the subject of the picketing. As in
all equal protection cases, however, the crucial question
is whether there is an appropriate governmental interest
suitably furthered by the differential treatment. See
Reed v. Reed, 404 U. S. 71, 75-77 (1971); Weber v.
Aetna Casualty Co., 406 U. S. 164 ( 1972); Dunn v.
Blumstein, 405 -U. S. 330, 335 (1972).
The central problem with Chicago's ordinance is that
it describes permissible picketing in terms of its subject
matter. Peaceful picketing on the subject of a
school's labor-management dispute is permitted, but all
other peaceful picketing is prohibited. The operative
distinction is the message on a picket sign. But, above
all else, the First Amendment means that government
has no po,ver to restrict expression because of its message,
its ideas, its subject matter, or its content. Cohen
v. California, 403 U.S. 15, 24 (1971); Street v. New York,
394 U. S. 576 (1969); New York Times Co. v. Sullivan,
376 U.S. 254, 269-270 ( 1964), and cases cited; NAACP v.
Button, 371 U.S. 415,445 (1963); Wood v. Georgia, 370
U. S. 375, 388-389 (1962); Terminielln v. Chicago, 337
U. S. 1, 4 (1949); De Jonge v. Oregon, 299 U.S. 353, 365
( 1937). To permit the continued building of our politics
3 For discussions of the First Amendment-Equal Protection intersection,
see Kalwn, The Concept of the Public Forum: Cox v.
Louisiana, 1965 Sup. Ct. Rev. 1, 29-30; T. Emrrsou, The System
of Freedom of Expression 303-304, 305-307 ( 197(}). Blasi, Prior
Rf'straints on Demonstrations, 68 .Mirh. L. Rev. 1482, 1492- 1497
(1970); Van Alstyne, Political Speaker8 at State UnivC'rsities: Some
Constitutional Consideratiurn, 111 U. Pa. L. Hev. 328, 337-339
(1963) ; see also Niemotko v. j\1aryland, 340 U.S. 268, 272 (1951) .
96 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
and culture, and to assure self-fulfillment for each individual,
our people are guaranteed the right to express
any thought, free from government censorship. The
essence of this forbidden censorship is content control.
Any restriction on expressive activity because of its content
would completely undercut 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, supra, at 270.
Necessarily, then, under the Equal Protection Clause,
not to mention the First Amendment itself, government
may not grant the use of a forum to people whose views
it finds acceptable, but deny use to those wishing to
express less favored or more controversial views. And
it may not select which issues are worth discussing or
debating in public facilities. There is an "equality of
status in the field of ideas," • and government must
afford all points of view an equal opportunity to be
heard. Once a forum is opened up to assembly or speaking
by some groups, government may not prohibit others
from assembling or speaking on the basis of what they
intend to say. Selective exclusions from a public forum
may not be based on content alone, and may not be
justified by reference to content alone.
Guided by these principles, we have frequently condemned
such discrimination among different users of
the same medium for expression. In Niemotko v. Maryland,
340 U. S. 268 ( 1951), a group of Jehovah's Witnesses
were denied a permit to use a city park for
Bible talks, although other political and religious groups
had been allowed to put the park to analogous uses.
Concluding that the permit was denied because of the
city's "dislike for or disagreement with the Witnesses
4 A. Meiklejohn, Politie:i.1 Freedom: The Constitutional Powers of
The People 27 (1948).
POLICE DEPARTMENT OF CHICAGO v. MOSLEY 97
92 Opinion of the Court
or their views," this Court held that the permit refusal
violated "[t]he right to equal protection of the
laws, in the exercise of those freedoms of speech and
religion protected by the First and Fourteenth Amendments."
Id., at 272. The Court followed Niemotko in
Fowler v. Rhode Island, 345 U.S. 67 (1953), where again
the Jehovah's Witnesses were refused permission to conduct
religious services in a park, although other religious
groups had been permitted to do so. Similarly, because
of their potential use as instruments for selectively
suppressing some points of view, this Court has
condemned licensing schemes that lodge broad discretion
in a public official to permit speech-related activity,
see, e. g., Shuttlesworth v. Birmingham, 394 U. S.
147 (1969); Cox v. Louisiana, 379 U. S. 536, 555- 558
(1965); Staub v. C-ity of Baxley, 355 U. S. 313, 321-325
(1958), and cases cited; Saia v. New York, 334 U.S. 558,
560--562 (1948). 5
The late Mr. Justice Black, who thought that picketing
was not only a method of expressing an idea but also
conduct subject to broad state regulation, nevertheless
recognized the deficiencies of laws like Chicago's ordinance.
This was the thrust of his opinion concurring in
Cox v. Louisiana, 379 U. S. 536 (1965):
"[B]y specifically permitting picketing for the
publication of labor union views [but prohibiting
5 See also Tinker v. Des Moines School District, 393 U.S. 503, 510-
511 (1969); Adderley v. Florida, 385 U. S. 39, 47 (1966); Carlson v.
Col,ifornia, 310 U.S. 106, 112 (1940) ; Wirta v. Alameda-Contra Costa
Transit District, 68 Cal. 2d 51, 434 P. 2d 982 ( 1967); Bynum v.
Schiro, 219 F. Supp. 204 (ED La. 1963), aff'd, 375 U. S. 395
(1964); East Meadow Assn. v. Board of Education, 18 N. Y. 2d
129,219 N. E. 2d 172 (1966); Matter of Madole v. Barnes, 20 N. Y
2d 169, 229 N. E. 2d 20 (1967); United States v. Crowthers, 456
F. 2d 1074 (CA4 1972); and the litigation in Ellis v. Dixon, 349
U.S. 458 (1955). Cf. Flower v. United States, 407 U. S. 197 (1972).
98 OCTOBER TERl\T, 1971
Opinion of the Court 408 U.S.
other sorts of picketing], Louisiana is attempting
to pick and choose among the views it is willing
to have discussed on its streets. It thus is trying
to prescribe by law what matters of public interest
people whom it allows to assemble on its
streets may and may not discuss. This seems to
me to be censorship in a most odious form, unconstitutional
under the First and Fourteenth
Amendments. And to deny this appellant and his
group use of the streets because of their views
against racial discrimination, while allowing other
groups to use the streets to voice opinions on other
subjects, also amounts, I think, to an invidious
discrimination forbidden by the Equal Protection
Clause of the Fourteenth Amendment." Id., at 581.
We accept Mr. Justice Black's quoted vie,vs. Cf. NLRB
v. Fruit .& Veoetable Packers, 377 U. S. 58, 76 (1964)
( Black, J., concurring) .
II
This is not to say that all picketing must always be
allowed. We have continually recognized that reasonable
"time, place and manner" regulations of picketing may be
necessary to further significant governmental interests.
Cox v. New Hampshire, 312 U. S. 569, 575-576 (1941);
Poulos v. New Hampshire, 345 U. S. 395, 398 (1953);
Cox v. Louisiana, 379 U. S., at 5fi4- 555; Cox v. Louisiana,
379 U. S. 559 ( 1965); Adderley v. Florida, 385
U. S. 39, 46-48 (1966). Similarly, under an equal protection
analysis, there may be sufficient regulatory interests
justifying selective exclusions or distinctions
among pickets. Conflicting demands on the same place
may compel the State to make choices among potential
users and uses. And the State may have a legitimate
interest in prohibiting some picketing to prntect public
order. But these justifications for selective exclusions
POLICE DEPARTMENT OF CHICAGO v. MOSLEY 99
92 Opinion of the Court
from a public forum must be carefully scrutinized. Because
picketing plainly involves expressive conduct
within the protection of the First Amendment, see,
e. g., Thornhill v. Alabama, 310 U. S. 88 (1940); Teamsters
Union v. Newell, 356 U. S. 341 (1958); Garner v.
Louisiana, 368 U. S. 157, 185 (1961) (Harlan, J., concurring
in judgment); Edwards v. South Ca.rolina, 372
U. S. 229 ( 1963); Cox v. Louisiana, supra, at 546; Food
Employees v. Logan Valley Plaza, 391 U.S. 308, 314-315
(1968); id., at 337 (WHITE, .J., dissenting); Gregory v.
Chicago, 394 U. S. 111, 112 (1969); Shuttlesworth v.
Birmingham, 394 U. S., at 155, discriminations among
pickets must be tailored to serve a substantial governmental
interest. Cf. Williams v. Rhodes, 393 U. S. 23
( 1968).
III
In this case, the ordinance itself describes impermissible
picketing not in terms of time, place, and manner,
but in terms of subject matter. The regulation "thus
slip[s] from the neutrality of time, place, and circumstance
into a concern about content." 0 This is
never permitted. In spite of this, Chicago urges that
the ordinance is not improper content censorship, but
rather a device for preventing disruption of the school.
Cities certainly have a substantial interest in stopping
picketing which disrupts a school. "The crucial question,
however, is whether [Chicago's ordinance] advances
that objective in a manner consistent with the command
of the Equal Protection Clause." Reed v. Reed,
404 U. S., at 76. It does not.
6 Kalven, The Concept of the Public Forum: Cox v. Louisiana,
1965 Sup. Ct. Rev. 29. Cf. Cox v. Louisiana, 379 U. S. 536, 556
n. 14, where the Court noted that the exemption for labor picketing
in a statute otherwise barring on its face all st reet assemblies and
parades, "points up the fact that the statute reaches beyond mere
traffic regulation to restrictions on expression."
100 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
Although preventing school disruption is a city's
legitimate concern, Chicago itself has determined that
peaceful labor picketing during school hours is not an
undue interference with school. Therefore, under the
Equal Protection Clause, Chicago may not maintain
that other picketing disrupts the school unless that
picketing is clearly more disruptive than the picketing
Chicago already permits. Cf. Tinker v. Des Moines
School District, 393 U. S. 503, 511 (1969); TVirta v.
Alameda-Contra Costa Transit District, 68 Cal. 2d 51,
434 P. 2d 982 ( 1967). If peaceful labor picketing is permitted,
there is no justification for prohibiting all nonlabor
picketing, both peac('ful and nonpeaceful. "Peaceful"
nonlabor picketing, however the term "peaceful" is defined,
is obviously no more disruptive than "peaceful"
labor picketing. But Chicago's ordinance permits the
latter and prohibits the former. Such unequal treatment
is exactly what was condemned in Niemotko v.
Maryland, 340 L'". S., at 272-273.
Similarly, we reject the city's argument that, although
it permits peaceful labor picketing, it may prohibit all
nonlabor picketing because, as a class, nonlabor picketing
is more prone to produce violence than labor picketing.7
Predictions about imminent disruption from picketing in-
7 The city notes in its brief, pp. 28-30:
"Although the civil rights rnovrmcnt has undn~tamlably endeavorccl
to press into its service the constitutional precedents developed in
labor relations litigation, there are important differences between
labor picketing and pi(·kcting by civil rights groups. . . . Labor
picketing is now usually token picketing. . . . It seldom leads to
disruption of the public prace, hardly ever to window smashing,
ar~on. Labor picketing can be carried on without interrupting
classes or even distracting the students. . . . As we all know, student
dl'monstratitJns at schools- and even such demonstrations by
parents and 'concerned citizcns'-are utterly different. Mass picketing,
sit-ins, smashed windows have been the order of the day.
The very purpose of such demonstrations often is to bring the
educational process to a halt."
POLICE DEPARTMENT OF CHICAGO v. MOSLEY 101
92 Opinion of the Court
volve judgments appropriately made on an individualized
basis, not by means of broad classifications, especially
those based on subject matter. Freedom of expression,
and its intersection with the guarantee of equal protection,
would rest on a soft foundation indeed if government
could distinguish among picketers on such a wholesale
and categorical basis. "[I]n our system, undifferentiated
fear or apprehension of disturbance is not enough to overcome
the right to freedom of expression." Tinker v.
Des Moines School District, 393 U. S., at 508. Some
labor picketing is peaceful, some disorderly; the same is
true of picketing on other themes. No labor picketing
could be more peaceful or less prone to violence than
Mosley's solitary vigil. In seeki11g to restrict nonlabor
picketing that is clearly more disruptive than peaceful
labor picketing, Chicago may not prohibit all nonlabor
picketing at the school forum.
The Equal Protection Clause requires that statutes affecting
First Amendment interests be narrowly tailored
to their legitimate objectives. Williams v. Rhodes, 393
U. S. 23 (1968); see generally Dunn v. Blumstein,
405 U. S., at 342~343.8 Chicago may not vindicate its
interest in preventing disruption by the wholesale exclusion
of picketing on all but one preferred subject.
Given what Chicago tolerates from labor picketing,
the excesses of some nonlabor picketing may not be
8 In a varil'ty of rnnkxts we have said that "even though the
governmental purpose be legitimate a.nd substantial, that purpose
cannot be pm~u<'d by means tbat broadly stifle fundamental per-
~onal lih<'rti<'s wlwn the end can be more narrowly achieved."
Shelton v. Tucker, 364 U. S. 479, 488 (1960). This standard, of
counw, has been carefully applil'd when First Amendment intereMs
are involved. E. g., Schneider v. State, 308 U.S. 147, 164 (1939) ;
De Jonge v. Oregon, 299 U . S. 353, 364-365 (1937) ; Cantwell v.
Connectirut, :no F . S. 296, ;307 (1940); NAACP V. Button, 371
1'. S. 415, 438 (19(la) ; Cox v. Louisiana, 379 U . S. 559, 562-564
(1965); United States v. O'Brien, 391 U.S. 367 (1968).
102 OCTOBER TERM, 1971
BURGER, C . .T ., concurring 408 U.S.
controlled by a broad ordinance prohibiting both peaceful
and violent picketing. Such excesses "can be controlled
by narrowly drawn statutes," Saia v. New York, 334
U. S., at 562, focusing on the abuses and dealing evenhandedly
with picketing regardless of subject matter.
Chicago's ordinance imposes a selective restriction on expressive
conduct far "greater than is essential to the furtherance
of [a substantial governmental] interest."
United States v. O'Brien, 391 U. S. 367, 377 (1968). Far
from being tailored to a substantial governmental interest,
the discrimination among pickets is based on the content
of their expression. Therefore, under the Equal Protection
Clause, it may not stand."
The judgment is
Affirmed.
MR. JUSTICE BLACKMUN and MR. JusTICE REHNQUIST
concur in the result.
MR. CHIEF JuSTICE BURGER, concurring.
I join the Court's opinion but with the reservation that
some of the language used in the discussion of the First
ll Chicago argued brlow that the labor cxrmption in the ordinance
was necessitated by federal pre-emption of the regulation of labor
relations. The city now recognizes that the National Labor Relations
Act specifically exempts States and subdivisions (and therefore cities
snd their public school boards) from the definition of "employer"
within the Act. 29 U. S. C. § 152. Nevertheless, Chicago urges
that the pre-emption argument still has "some merit." It argues
that "since observanC'e by employees of private employers of picket
lines of public employees can have repercussions in the federal
sphC'rP, t]I(' City was well advised to avoid this qungrnire of labor
law and labor relations by exempting Iabor picketing from the
ordinan<'c." Reply Brief 12. This attenuated intC'rest, nt brst
a claim of small administrative convenience and perhaps merely
a confession of legislative laziness, cannot justify the blanket permission
given to labor picketing and the blanket prohibition applicable
to others.
POLICE DEPARTMENT OF CHICAGO v. MOSLEY 103
92 BURGER, C. J ., concurring
Amendment could, if read out of context, be misleading.
Numerous holdings of this Court attest to the fact that
the First Amendment does not literally mean that we "are
guaranteed the right to express any thought, free from
government censorship." This statement is subject to
some qualifications, as for example those of Roth v.
United States, 354 U. S. 476 (1957); Chaplinsky v. New
Hampshire, 315 U. S. 568 (1942). See also New York
Times Co. v. Sullivan, 376 U.S. 254 (1964).
104 OCTOBER TERM, 1971
Syllabus
GRA YNED v. CITY OF ROCKFORD
408U. S.
APPEAL FROM THE SUPREME COURT OF ILLINOIS
No. 70--5106. Argued January 19, 1972-Decidcd June 26, 1972
1. Antipickct.ing ordinance, virtually identical with one invalidated
as violative of equal protection in Police Department of Chicago
v. Mosley, ante, p. 92, is likewise invalid. P. 107.
2. Antinoise ordinance prohibiting a person while on ground~ adjacent
to a building in which a school is in session from willfully
making a noise or diversion that disturbs or tends to disturb the
peace or good order of the school session is not unconstitutionally
vague or overbroad, The ordinance is not vague since, with fair
warning, it prohibits only actual or imminent, and willful, interference
with normal school activity, and is not a broad invitation
to discriminatory enforcement. Cox v. Louisiana, 379 U.S. 536;
Coates v. Cincinnati, 402 U. S. 611, distinguished. The ordinance
is not overbroad as unduly interfering with First Amendment
rights since expressive activity is prohibited only if it "materially
disrnpts classwork." Tinker v. Des Moines School District, 393
U. S. 503, 513. Pp. 107-121.
46 Ill. 2d 492, 263 N. E. 2d 866, affirmed in part and reversed in part.
MARSHALL, J., delivered. the opinion of the Court, in which
BURGER, C. J., and BRENNAN, STEWART, \1/HITE, l'owELL, and
REHNQUIST, JJ., joined. BLACKMUN, J., filed a statemPnt joining
in the judgment and in Part I of the Court's opinion and concnrring
in the rrsult as to Part II of the opinion, post, p. 121. DoUGLAS, J.,
filPd an opinion dissrnting in part and joining in Part I of t IJP
Court's opinion, post, p. 121.
Sophia H. Hall argued the cause for appellant. With
her on the briefs were William R. Ming, Jr., and Aldus
S. Mitchell.
William E. Collins argued the cause for appellee.
With him on the brief were A. Curtis JVashburn and
Cha,.rles F. Thomas.
GRAYNED v. CITY OF ROCKFORD 105
104 Opinion of the Court
MR. JusTICE MARSHALL delivered the opinion of the
Court.
Appellant Richard Grayned was convicted for his part
in a rlemonstration in front of West Senior High School
in Rockford, Illinois. Negro students at the school had
first presented their grievances to school administrators.
When the principal took no action on crucial complaints,
a more public demonstration of protest was planned.
On April 25, 1969, approximately 200 people-------.--students,
their family members, and friends-gathered
next to the school grounds. Appellant, whose brother
and twin sisters were attending the school, was part of
this group. The demonstrators marched around on a
sidewalk about 100 feet from the school building, which
was set back from the street. Many carried signs which
summarized the grievances: "Black cheerleaders to cheer
too"; "Black history with black teachers"; "Equal rights,
Negro counselors." Others, without placards, made the
"power to the people" sign with their upraised and
clenched fists.
In other respects, the evidence at appellant's trial
was sharply contradictory. Government witnesses reported
that the demonstrators repeatedly cheered,
chanted, baited policemen, and made other noise that
was audible in the school; that hundreds of students
were distracted from their school activities and lined
the classroom windows to watch the demonstration; that
some demonstrators successfully yelled to their friends
to leave the school building and join the demonstration;
that uncontrolled latenesses after period changes in the
school were far greater than usual, with late students
admitting that they had been watching the demonstration;
and that, in general, orderly school procedure was
disrupted. Defense witnesses claimed that the demonstrators
were at all times quiet and orderly; that
they did not seek to violate the law, but only to "make
106 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
a point"; that the only noise was made by policemen
using loudspeakers; that almost no students were noticeable
at the schoolhouse windows; and that orderly school
procedure was not disrupted.
After warning the demonstrators, the police arrested
40 of them, including appellant.1 For participating in
the demonstration, Grayned was tried and convicted of
violating two Rockford ordinances, hereinafter ref erred
to as the "antipicketing" ordinance and the "antinoise"
ordinance. A $25 fine was imposed for each violation.
Since Grayned challenged the constitutionality of each
ordinance, he appealed directly to the Supreme Court of
Illinois. Ill. Sup. Ct. Rule 302. He claimed that the
ordinances were invalid on their face, but did not urge
that, as applied to him, the ordinances had puni~hed constitutionally
protected activity. The Supreme Court of
Illinois held that both ordinances were constitutional on
their face. 46 Ill. 2d 492, 263 N. E. 2d 866 (1970). We
noted probable jurisdiction, 404 U. S. 820 (1971). We
conclude that the antipicketing ordinance is unconstitutional,
but affirm the court below with respect to the
antinoise ordinance.
1 Police officers testified that "there was no way of picking out
any one in particular" while making arrests. Report of Proceedings
in Circuit. Court, 17th Judicial Circuit, Winnebago County 66. However,
apparently only males were arrested. Id., at 65, 135, 147.
Since appellant's sole claim in this appeal is that he was convicted
under facially unconstitutional ordinances, there is no occasion for
us to evaluate either the propriety of these selective arrests or the
sufficiency of evidence that appellant himself actually engaged in
conduct within the terms of the ordinances. l\1:R. ,h;sTJCE DouGLAR,
in concluding that appellant's particular behavior was prott'cted by
the First Amendment, reaches a question not presented by the parties
here or in the court, below. See Tr. of Oral Arg. 16-17; Jurisdictional
Statrment 3; City of Rockford v. Grayned, 46 Ill. 2d 492,
494, 263 N. E. 2d 866, 867 (1970).
GRAYNED v. CITY OF ROCKFORD 107
104 Opinion of the Court
I
At the time of appellant's arrest and conviction, Rockford's
antipicketing ordinance provided that
"A person commits disorderly conduct when he
knowingly:
"(i) Pickets or demonstrates on a public wa.y
within 150 feet of any primary or secondary school
building while the school is in session and one-half
hour before the school is in session and one-half
hour after the school session has been concluded,
provided that this subsection does not prohibit
the peaceful picketing of any school involved in a
labor dispute . . . . " Code of Ordinances, c. 28,
§ 18.1 (i).
This ordinance is identical to the Chicago disorderly conduct
ordinance we have today considered in Police Department
of Chicago v. Mosley, ante, p. 92. For the reasons
given in Mosley, we agree with dissenting Justice
Schaefer below, and hold that§ 18.1 (i) violates the Equal
Protection Clause of the Fourteenth Amendment. Appellant's
conviction under this invalid ordinance must be
reversed.2
II
The antinoise ordinance reads, m pertinent part, as
follows:
"[N] o person, while on public or private grounds
adjacent to any building in which a school or any
2 In November 1971, the antipicketing ordinance was amrnded to
delete the labor picketing proviso. As Rockford notes, "This amendment
and deletion has, of course, no effect on Appellant's personal
situation." Brief 2. Necessarily, we must consider the facial constitutionality
of the ordinance in effect when appellant was arrested
and convicted.
108 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
class thereof is in session, shall willfully make or
assist in the making of any noise or diversion which
disturbs or tends to disturb the peace or good order
of such school session or class thereof. . . ." Code
of Ordinances, c. 28, § 19.2 (a).
Appellant claims that, on its face, this ordinance is both
vague and overbroad, and therefore unconstitutional.
We conclude, however, that the ordinance suffers from
neither of these related infirmities.
A. Vagueness
It is a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not
clearly defined. Vague laws offend several important
values. First, because we assumE> that man is free to
steer between lawful and unlawful conduct, we insist
that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so
that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning.3 Second, if
arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those
who apply them.• A vague law impermissibly delegates
3 E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 162
(1972); Cramp v. Board of Public Instruction, 368 U. S. 278, 287
(1961); United States v. Harriss, 347 U.S. 612,617 (1954); Jordan
v. De George, 341 U. S. 223, 230-232 (1951); Lanzetta v. New
Jersey, 306 U. S. 451, 453 (1939); Connally v. General Construction
Co., 269 U. S. 385, 391 (1926); United States v. Cohen Grocery Co.,
255 U. S. 81, 89 (1921); International Harvester Co. v. Kentucky,
234 U.S. 216, 223-224 (1914).
• E. g., Papachristou v. City of Jacksonville, supra; Coates v.
Cincinnati, 402 U.S. 611 , 614 (1971); Gregory v. Chicago, 394 U.S.
111, 120 (1969) (Black, .J., concurring); Interstate Circuit v. Dallas,
390 U.S. 676, 684-685 (1968); Ashton v. Kentucky, 384 U.S. 195,
200 (1966); Giaccio v. Pennsylvania, 382 U.S. 399 (1966); Shuttlesworth
v. Birmingham, 382 U. S. 87, 90-91 (1965); Kunz v. N ew
GRAYNED v. CITY OF ROCKFORD 109
104 Opinion of the Court
basic policy matters to policemen, judges, and juries for
resolution on an ad hoe and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.
5 Third, but related, where a vague statute
"abut[sJ upon sensitive area.s of basic First Amendment
freedoms," 0 it "operates to inhibit the exercise of [those]
freedoms."· Uncertain meanings inevitably lead citizens
to " 'steer far wider of the unlawful zone' ... than
if the boundaries of the forbidden areas were cleariy
marked." 8
Although the question is close, we conclude that the
antinoise ordinance is not impermissibly vague. The
court below rejected appellant's arguments "that proscribed
conduct was not sufficiently specified and that
police ,vere given too broad a discretion in determining
whether conduct was proscribed." 46 Ill. 2d, at 494, 263
N. E. 2d, at 867. Although it referred to other, similar
statutes it had recently construed and upheld, the court
York, 340 U.S. 290 (1951); Saia v. New York, 334 U.S. 558, 559-
560 (1948); Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940);
Herndon v. Lowry, 301 U. S. 242, 261-264 (1937).
r. Where First Amendment interests are affected, a precise statute
"evincing a legislative judgment that certain specific conduct
be . . . proscribed," Edwards v. South Carolina, 372 U. S. 229,
236 (1963), assures us that the legislature has focused on the First
Amendment interests and determined that other governmental policies
compel regulation. See Kalven, The Concept of the Public
Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 32; Garner v.
Louisiana, 368 U.S. 157, 200, 202 (1961) (Harlan, .T., l'Onrurring in
judgment).
0 Baggett v. Bullitt, 377 U.S. 360, 372 (1964).
7 Cramp v. Board of Public Instruction, 368 U. S., at 287.
8 Baggett v. Bullitt, supra, at 372, quoting Speiser v. Randall,
357 U. S. 513, 526 ( 1958). See Interstate Circuit v. Dallas,
supra, at 684; Ashton v. Kentucky, supra, at 195, 200-201; nombrowski
v. Pfister, 380 U. S. 479, 486 (1965); Smith v. California,
361 U. S. 147, 150-152 (1959); Winters v. New York, 333 U. S.
507 (1948); Stromberg v. California, 283 U.S. 359,369 (1931}.
110 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
below did not elaborate on the meaning of the antinoise
ordinance.0 In this situation, as Mr. Justice Frankfurter
put it, we must "extrapolate its allowable meaning." 10
Here, we are "relegated ... to the words of the ordinance
itself," 11 to the interpretations the court below has given
to analogous statutes,12 and, perhaps to some degree, to
the interpretation of the statute given by those charged
with enforcing it.13 "Extrapolation," of course, is a delicate
task, for it is not within our power to construe
and narrow state laws.14
With that warning, we find no unconstitutional vagueness
in the antinoise ordinance. Condemned to the use
of words, we can never expect mathematical certainty
from our language.15 The words of the Rockford ordinance
are marked by "flexibility and reasonable breadth,
rather than meticulous specificity," Esteban v. Central
Missouri State College, 415 F. 2d 1077, 1088 (CA8 1969)
(Blackmun, J.), cert. denied, 398 U. S. 965 (1970),
but we think it is clear what the ordinance as a whole
prohibits. Designed, according to its preamble, "for the
protection of Schools," the ordinance forbids deliberately
9 The trial magistrate simply charged the jury in the words of the
ordinance. The complaint and verdict form used slightly different
language. See n. 24, infra.
10 Garner v. Louisiana, 368 U.S., a.t 174 (concurring in judgment).
11 Coates v. Cincinnati, 402 U. S., at 614.
12 E. g., Gooding v. Wilson, 405 U.S. 518 (1972).
13 E. g., Lake Carriers Assn. v. MacMullan, 406 U. S. 498, 506-508
(1972); Cole v. Richatdson, 405 U.S. 676 (1972); Ehle.rt v. United
States, 402 U.S. 99,105, 107 (1971); cf. Poe v. Ullman, 367 U.S. 497
(1961).
H United States v. 37 Photographs, 402 U. S. 363, 369 (1971).
15 It will always be true that the fertile legal "imagination can conjure
up hypothetical cases in which the meaning of [disputed] terms
will be in nice question." American Communications Assn. v. Douds,
339 U. S. 382, 412 (ID50).
GRAYNED v. CITY OF ROCKFORD 111
104 Opinion of the Court
noisy or diversionary 1
" activity that disrupts or is
about to disrupt normal school activities. It forbids
this willful activity at fixed times-when school is in
session-and at a sufficiently fixed place-"adjacent" to
the school.11 Were we left with just the words of the
ordinance, we might be troubled by the imprecision of
the phrase "tends to disturb." 18 However, in Chicago
v. Meyer, 44 Ill. 2d I, 4, 253 N. E. 2d 400, 402 (1969),
and Chicago v. Gregory, 39 Ill. 2d 47, 233 N. E. 2d 422
( 1968), reversed on other grounds, 394 U. S. 111 ( 1969),
the Supreme Court of Illinois construed a Chicago ordinance
prohibiting, inter alia, a "diversion tending to disturb
the peace," and held that it permitted conviction
only where there was "imminent threat of violence."
(Emphasis supplied.) See Gregory v. Chicago, 394 U.S.
111, 116- 117, 121-122 (1969) (Black, J., concurring).10
Since Meyer was specifically cited in the opinion below,
and it in turn drew heavily on Gregory, we think it proper
to conclude that the Supreme Court of Illinois would
interpret the Rockford ordinance to prohibit only actual
16 "Diversion" is defined by Webster's Third New International
Dictionary as "the act or an instance of divnting from one course or
use to another ... : the act or an instance of diverting (as the
mind or attention) from some activity or concern ... : a turning
aside . . . : something that turns the mind from serious concerns or
ordinary matters and relaxes or amuses."
17 Cf. Cox v. Loui.siana, 379 U. S. 559, 568-569 (1965) ("near"
the courthouse not impermissibly vague).
18 See Gregory v. Chicago, 394 U. S., at 119-120 (Bla<"k, .J., concurring);
Gooding v. Wilson, 405 U.S., at 525-527; Craig v. Harney,
331 U. S. 367, 372 (1947); cf. Chaplinsky v. New Hampshire, 315
U. S. 568 (1942) (statute punishing "fighting word~," that have
a "direct tendency to ca11se arts of violmce," upheld); Street
v. New York, 394 U.S. 576, 592 (1969).
19 Cf. Chicago v. Terminiello, 400 Ill. 23, 79 N. E. 2d 39 (1948),
reversed on other grounds, 337 U. S. 1, 6 ( 1949).
112 OCTOBER TERM, 1971
Opinion of the Court 408 U. 8.
or imminent interference with the "peace or good order"
of the school.2°
Although the prohibited quantum of disturbance is
not specified in the ordinance, it is apparent from the
statute's announced purpose that the measure is whether
normal school activity has been or is about to be
disrupted. We do not have here a vague, general "breach
of the peace" ordinance, but a statute written specifically
for the school context, where the prohibited disturbances
are easily measured by their impact on the normal activities
of the school. Given this "particular context," the
ordinance gives "fair notice to those to whom [it] is
directed." '1 Although the Rockford ordinance may not
be as precise as the statute we upheld in Ca.rneron v.
Johnson, 390 U.S. 611 (1968)-which prohibited picketing
"in such a manner as to obstruct or unreasonably interfere
with free ingress or egress to and from" any
courthouse-we think that, as in Cameron, the ordinance
here clearly "delineates its reach in words of common
understanding." Id., at 616.
20 Some intermediate appellate courts in Illinois appear to have
interpreted the phrase "tending to" out of the Chicago ordinance
cutirely, at li>ast in some contexts. Chicago v. Hansen, 337 Ill. App.
663, 86 N. E. 2d 415 (1949); Chicago v. Holmes, 339 Ill. App. 146,
88 l\' . E. 2d 744 (1949); Chicago v. Nesbitt, 19 Ill. App. 2d 220,
153 N. E. 2d 259 (1958) ; but cf. Chicago v. Williams, 41> Ill App.
2d 327, 195 N. E. 2d 425 (1963).
In its brief, the city of Rockford indicates that its sole concern
is with actual disruption. "[A] court and jury [are] ('har!!;C'd with
the duty of determining whether or not . .. a school has been disrupted
and that the defendant's rond11ct, Lno matter what it was,]
causPd or contributed to cau~r the disrnption." Brief for Appeller
16 ( emphasis su pplicd). This was the theory on which the city tried
appellant's case to the jury, Report, supra, n. 1, at 12-13, although
the jury was instructed in the words of the ordinance. A• ::ilrpady
not<'d, supra, n. 1, no challf'ngf' is madC' here to the Rockford
ordinance as appli<'d in this case.
21 American Communications Assn. v. Douds, 339 U. 8., at 412.
GRAYNED v. CITY OF ROCKFORD 113
104 Opinion of the Court
Cox v. Louisiana, 379 U. S. 536 (1965), and Coates
v. Cincinnati, 402 U. S. 611 (1971), on which appellant
particularly relies, presented completely different situations.
In Cox, a general breach of the peace ordinance
had been construed by state courts to mean "to agitate,
to arouse from a state of repose, to molest, to interrupt,
to hinder, to disquiet." The Court correctly concluded
that, as construed, the ordinance permitted persons
to be punished for merely expressing unpopular
views.22 In Coates, the ordinance punished the sidewalk
assembly of three or more persons who "conduct themselves
in a manner annoying to persons passing by .... "
We held, in part, that the ordinance was impermissibly
vague because enforcement depended on the completely
subjective standard of "annoyance."
In contrast, Rockford's antinoise ordinance does not
permit punishment for the expression of an unpopular
point of view. and it contains no broad invitation to
subjective or discriminatory enforcement. Rockford
does not claim the broad power to punish a11 "noises"
and "diversions." 23 The vagueness of these terms, by
themselves, is dispelled by the ordinance's requirements
that ( 1) the "noise or diversion" be actually
incompatible with normal school activity; (2) there be
a demonstrated causality between the disruption that
occurs and the "noise or diversion"; and (3) the acts be
22 Cf. Edwards v. South Carolina, 372 U. S. 229 (1963); Cantwell
v. Connecticut, 310 U. S. 296, 308 (1940). Similarly, in numerous
other cases, we have condemned broadly worded licensing ordinances
which grant such standardless discretion to public officials that they
are free to censor ideas and enforce their own personal preferences.
Shuttlesworth v. Birmingham, 394 U. S. 147 (1969); Staub v. City
of Baxley, 355 U. S. 313 (1958); Saia v. N ew York, 334 U. S. 558
(1948); Schneider v. State, 308 U. S. 147, 163-164 (1939); Lovell
v. Griffin, 303 U.S. 444 (1938); Hague v. CIO, 307 U.S. 496 {1939).
23 Cf. Cox v. Louisiana, 379 U. S. 536, 546-550 (1965); Edwards
v. South Carolina, 372 U.S., at 234-237.
114 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
"willfully" done. 24 "Undesirables" or their "annoying"
conduct may not be punished. The ordinance does not
permit people to "stand on a public sidewalk ... only at
the whim of any police officer." 2
~ Rather, there must be
demonstrated interference with school activities. As always,
enforcement requires the exercise of some degree of
police judgment, but, as confined, that degree of judgment
here is permissible. The Rockford City Council has made
the basic policy choices, and has given fair warning as to
what is prohibited. "[T]he ordinance defines boundaries
sufficiently distinct" for citizens, policemen, juries, and
appellate judges.26 It is not impermissibly vague.
B. Overbreadth
A clear and precise enactment may nevertheless be
"overbroad" if in its reach it prohibits constitutionally
protected conduct.21 Although appellant does not claim
that, as applied to him, the antinoise ordinance has punished
protected expressive activity, he claims that the
ordinance is overbroad on its face. Because overbroad
laws, like vague ones, deter privileged activity, our cases
firmly establish appellant's standing to raise an overbreadth
challenge.20 The crucial question, then, is
24 Tracking the complaint, the jury verdict found Grayned guilty
of " [ w] ilfully causing divl'rsion of good order of public school in
session, in that while on school grounds and while school was in
session, did wilfully make and assist in the making of a diversion
which tended to disturb the peace and good order of the school session
and class thereof."
25 Shuttlesworth v. Birmingham, 382 U. S., at 90.
z,; Chicago v. Fort, 46 Ill. 2d 12, 16,262 N. E. 2d 473,476 (1970),
a case cited in the opinion below.
21 See Zwickler v. Koota, 389 U.S. 241, 249-250 (1967). ard rascs
cited.
28 E. g., Gooding v. Wilson, 405 U.S. 518 (1972); Coates v. Cincinnati,
402 U. S., at 616; Dombrowski v. Pfister, :180 U. S., at 486,
and cases cited; Kunz v. New York, 340 U.S. 290 (1951).
GRAYNED v. CITY OF ROCKFORD 115
104 Opinion of the Court
whether the ordinance sweeps within its prohibitions
what may not be punished under the First and Fourteenth
Amendments. Specifically, appellant contends
that the Rockford ordinance unduly interferes with First
and Fourteenth Amendment rights to picket on a public
sidewalk near a school. We disagree.
"In considering the right of a municipality to control
the use of public streets for the expression of religious
[or political] views, we start with the words of Mr. Justice
Roberts that 'Wherever the title of streets and
parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind,
have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public
questions.' Hague v. CIO, 307 U. S. 496, 515 (1939)."
Kunz v. New York, 340 U. S. 290, 293 (1951). See
Shuttlesworth v. Birmingham, 394 U. S. 147, 152 (1969).
The right to use a public place for expressive activity
may be restricted only for weighty reasons.
Clearly, government has no power to restrict such
activity because of its message.29 Our cases make equally
clear, however, that reasonable "time, place and manner"
regulations may be necessary to further significant governmental
interests, and are permitted.3° For example,
two parades cannot march on the same street simultaneously,
and government may allow only one. Cox
v. New Hampshire, 312 U. S. 569, 576 (1941). A demonstration
or parade on a large street during rush hour
29 Police Department of Chicago v. Mosley, ante, p. 92.
3° Cox v. New Hampshire, 312 U. S. 569, 575-576 (1941); Kunz
v. New York, :~40 U. S., at 293-294 ; Poulos v. N ew Hampshire,
345 U. S. 395, 398 (1953); Cox v. Louisiana, 379 U.S., at 554-555;
Cox v. Louisiana, 379 U. S. 559 (1965); Adderley v. Florida, 385
U. S. 39, 46-48 (1966); Food Employees v. Logan Valley Plaza,
391 U. S. 308, 320-321 (1968); Shuttlesworth v. Birmingham, 394 u. s. 147 (1969).
116 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
might put an intolerable burden on the essential flow
of traffic, and for that reason could be prohibited. Cox
v. Louisiana, 379 U. S., at 554. If overamplified loudspeakers
assault the citizenry, government may turn
them down. Kovacs v. Cooper, 336 U. S. 77 (1949);
Saia v. New York, 334 U. S. 558, 562 (1948). Subject
to such reasonable regulation, however, peaceful demonstrations
in public places are protected by the First
Amendment.31 Of course, where demonstrations turn
violent, they lose their protected quality as expression
under the First Amendment.32
The nature of a place, "the pattern of its normal
activities, dictate the kinds of regulations of time, place,
and manner that are reasonable." 3" Although a silent
vigil may not unduly interfere with a public library,
Brown v. Louisiana, 383 U. S. 131 (1966), making a
speech in the reading room almost certainly would.
That same speech should be perfectly appropriate in
a park. The crucial question is whether the manner
of expression is basically incompatible with the normal
activity of a particular place at a particular time. Our
cases make clear that in assessing the reasonableness
of a regulation, we must weigh heavily the fact that communication
is involved; 34 the regulation must be nar-
31 Police D epartment of Chicago v. Mosley, ante, at. 95-96, and
cases cited.
32 See gcnc,rally T. Emerson, The System of Freedom of Expression
328--345 (1970) .
33 Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027,
1042 (1969). Cf. Cox v. L ouisiana, 379 U.S. 559 (1965); Adderley
v. Florida, 385 U. S. 39 (1966); Food Employees v. Logan Valley
Plaza, 391 U. S. 308 (1968); Tinker v. Des Moines School District,
393 U. S. 503 (1969).
34 E. g., Schneider v. State, 308 U. S. 147 ( 1939); Talley v. Californ
ia, 362 U. 8. 60 (1960); Saia v. N ew York, 334 U. 8., at 562 ;
Cox v. New Hampshire, 312 U.S., at 574; Hague v. C/0, 307 U.S.,
at 516. Src grnrrally Kalven, The Concept of the Public Forum:
Cox v. Loui8iana, 1965 Sup. Ct. Rev. 1.
GRAYNED v. CITY OF ROCKFORD 117
104 Opinion of the Court
rowly tailored to further the State's legitimate interest.35
Access to the "streets, sidewalks, parks, and other similar
public places ... for the purpose of exercising [First
Amendment rights] cannot constitutionally be denied
broadly .... " 36 Free expression "must not, in the guise
of regulation, be abridged or denied." 37
In light of these general principles, we do not think
that Rockford's ordinance is an unconstitutional regulation
of activity around a school. Our touchstone is
Tinker v. Des Moines School District, 393 U. S. 503
(1969), in which we considered the question of how to
accommodate First Amendment rights with the "special
characteristics of the school environment." Id., at 506.
Tinker held that the Des Moines School District could
not punish students for wearing black armbands to
school in protest of the Vietnam war. Recognizing that
" 'wide exposure to . . . robust exchange of ideas' " is an
"important part of the educational process" and should
be nurtured, id., at 512, we concluded that free expression
could not be barred from the school campus. \Ve
made clear that "undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom
of expression," id., at 508,38 and that particular expressive
activity could not be prohibited because of a
"mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint," id., at
509. But we nowhere suggested that students, teachers,
or anyone else has an absolute constitutional right to use
'"De Jonge v. Oregon, 299 U. S. 353, 364-365 (1937); Lovell v.
Griffin, 303 U. S., at 451; Schneider v. State, 308 U. S., at 164;
Cantwell v. Connecticut, 310 U. S., at 307; Cox v. Louisiana, 379
U.S., llt 562-564; Davis v. Francois, :ms F. 2d 730 (CA5 1968). Cf.
Shelton v. Tucker, 364 U. S. 479, 488 (1960); NAACP v. Button,
:m U. S. 415, 438 (1963).
36 Food Employees v. Logan Valley Plaza, 391 U. S., at 315.
37 Hague v. CIO, 307 U. S., at 516.
38 Cf. Hague v. CJO, supra, at 516.
118 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
all parts of a school building or its immediate environs for
his unlimited expressive purposes. Expressive activity
could certainly be restricted, but only if the forbidden conduct
"materially disrupts classwork or involves substantial
disorder or invasion of the rights of others." Id.,
at 513. The wearing of armbands was protected in
Tinker because the students "neither interrupted school
activities nor sought to intrude in the school affairs
or the lives of others. They caused discussion outside
of the classrooms, but no interference with work
and no disorder." Id., at 514. Compare Burnside v.
Byars, 363 F. 2d 744 (CA5 1966), and Butts v. Dallas
Ind. School District, 436 F. 2d 728 (CA5 1971), with
Blackwell v. Issaquena County Board of Education, 363
F. 2d 749 (CA5 1966).
Just as Tinker made clear that school property may
not be declared off limits for expressive activity by students,
we think it clear that the public sidewalk adjacent
to school grounds may not be declared off limits for
expressive activity by members of the public. But in
each case, expressive activity may be prohibited if it
"materially disrupts classwork or involves substantial
disorder or invasion of the rights of others." Tinker
v. Des Moines School District, 393 U. S., at 513.30
We would be ignoring reality if we did not recognize
that the public schools in a community are important
institutions, and are often the focus of significant grievances.
40 Without interfering with normal school activi-
3 v In 'Tinker we recognized that the principle of that case was
not limited to expressive activity within the school building itself.
Id., at 512 n. 6, 513-514. Sec Esteban v. Central Missouri State
College, 415 F. 2d 1077 (CA8 1969) (Blackmun, J.), cert. denied,
398 U. S. 965 (1970); Jones v. Board of Regents, 436 F. 2d
618 (CA9 1970); Hammond v. South Carolina State College, 272 F.
Supp. 947 (SC 1967), cited in Tinker.
4° Cf. Thornhill v. Alabama, 310 U. S., at 102. It goes without
saying that "one is not to have the exercise of his librrty of
GRAYNED v. CITY OF ROCKFORD 119
104 Opinion of the Court
ties, daytime picketing and handbilling on public grounds
near a school can effectively publicize those grievances
to pedestrians, school visitors, and deliverymen, as well
as to teachers, administrators, and students. Some picketing
to that end will be quiet and peaceful, and will
in no way disturb the normal functioning of the school.
For example, it would be highly unusual if the classic
expressive gesture of the solitary picket disrupts anything
related to the school, at least on a public sidewalk
open to pedestrians." On the other hand, schools could
hardly tolerate boisterous demonstrators who drown out
classroom conversation, make studying impossible, block
entrances, or incite children to leave the schoolhouse.'"
Rockford's antinoise ordinance goes no further than
Tinker says a municipality may go to prevent interference
with its schools. It is narrowly tailored to further
Rockford's compelling interest in having an undisrupted
school session conducive to the students'
learning, and does not unnecessarily interfere with First
Amendment rights. Far from having an impermissibly
broad prophylactic ordinance,43 Rockford punishes only
conduct which disrupts or is about to disrupt normal
school activities. That decision is made, as it should
be, on an individualized basis, given the particular fact
situation. Peaceful picketing which does not interfere
with the ordinary functioning of the school is permitexpression
in appropriate places abridged on the plea that it may be
exercised in some other place." Schneider v. State, 308 U. S., at
163.
41 Cf. Jones v. Board of Regents, supra.
• 2 Cf. Barker v. Hardway, 283 F. Supp. 228 (SD W. Va.),
aff'd, 399 F. 2d 638 (CA4 1968), cert. denied, 394 U. S. 905 ( 1969)
(Fort as, J., concurring).
43 See Jones v. Board of Regents, supra; Hammond v. South Carolina
State College, supra.
120 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
ted. And the ordinance gives no license to punish anyone
because of what he is saying."
We recognize that the ordinance prohibits some picketing
that is neither violent nor physically obstructive.
Noisy demonstrations that disrupt or are incompatible
with normal school activities are obviously v,rithin the
ordinance's reach. Such expressive conduct may be constitutionally
protected at other places or other times,
cf. Edwards v. South Carolina, 372 U. S. 229 (1963);
Cox v. Louiswna, 379 U. S. 536 (1965), but next to a
school, while classes are in session, it may be prohibited."
The antinoise ordinance imposes no such restriction
on expressive activity before or after the school
session, while the student/faculty "audience" enters and
leaves the school.
In Cox v. Louiswna, 379 U. S. 559 (1965), this Court
indicated that, because of the special nature of the place,46
persons could be constitutionally prohibited from picketing
"in or near" a courthouse "with the intent of
interfering with, obstructing, or impeding the administration
of justice." Likewise, in Cameron v. Johnson,
390 U. S. 611 (1968), we upheld a statute prohibiting
H Compare Scoville v. Board of Education, 425 F. 2d 10 (CA7),
cert. denied, 400 U. S. 826 ( 1970); Dickey v. Alabama State Board of
Education, 273 F. Supp. 613 (MD Ala. 1967) (cited in Tinker).
45 Different considerations, of course, apply in different circumstances.
For example, restrictions appropriate to a single-building
high school during class hours would be inappropriate in many open
areas on a college campus, just as an assembly that is permitted
outside a dormitory would be inappropriate in the middle of a mathematics
class.
46 Noting the need "to assure that the administration of justice at
all stages is free from outside control and influence," we emphasized
that "r a] State may protect against the possibility of a conclusion by
the public ... [that a] judge's action was in part a product of
intimidation and did not flow only from the fair and orderly working
of the judicial process." 379 U. S., at 562, 565.
GRAYNED v. CITY OF ROCKFORD 121
104 DouGLAS, .J., dissenting in part
picketing "in such a manner as to obstruct or unreasonably
interfere with free ingress or egress to and from
any ... county ... courthouses." 47 As in those two
cases, Rockford's modest restriction on some peaceful
picketing represents a considered and specific legislative
judgment that some kinds of expressive activity should
be restricted at a particular time and place, here in order
to protect the schools.48 Such a reasonable regulation
is not inconsistent with the First and Fourteenth Amendments!
n The antinoise ordinance is not invalid on its
face.~0
The judgment 1s
Affirmed in part and reversed in part.
MR. JUSTICE BLACKMUN joins in the judgment and in
Part I of the opinion of the Court. He concurs in the
result as to Part II of the opinion.
MR. JusTICE DOUGLAS, dissenting in part.
While I join Part I of the Court's opinion, I would also
reverse the appellant's conviction under the antinoise
ordinance.
47 Quoting Schneider v. State, 308 U. S., at 161, we noted that
"'such activity bears no necessary relationship to the freedom to ...
distribute information or opinion.'" 390 U. S., at 617.
•B Cf. Garner v. Louisiana, 368 U. S., at 202-203 (Harlan, .J.,
concurring in judgment).
49 Cf. Adderley v. Florida, 385 U. S. 39 (1966). In Adderley,
1 he Court held that demonstrators could be barrrd from juilho118e
grounds not ordinarily open t.o the public, at least where the demonstration
obstructed the jail driveway and interfcrrd with the
functionin11: of the jail. In 'Tinker we noted that "a srhool is not
like a hospital or a jail enclosure." 393 U. S., at 512 n. 6.
50 It is possible, of course, that there will be unconstitutional applications;
but that is not a matter which presently concerns us. See
Shuttlesworth v. Birmingham, 382 U. S., at 91, and n. 1, supra.
122 OCTOBER TERM, 1971
DouGLAs, J., dissenting in part 408 U.S.
The municipal ordinance on which this case turns is
c. 28, § 19.2 (a) which provides in relevant part:
"That no person, while on public or private
grounds adjacent to any building in which a school
or any class thereof is in session, shall willfully make
or assist in the making of any noise or diversion
which disturbs or tends to disturb the peace or good
order of such school session or class thereof."
Appellant was one of 200 people picketing a school
and carrying signs promoting a black cause-"Black
cheerleaders to cheer too," "Black history ,vith black
teachers," "\Ve want our rights," and the like. Appellant,
however, did not himself carry a picket sign. There was
no evidence that he yelled or made any noise whatsoever.
Indeed, the evidence reveals that appellant simply
marched quietly and on one occasion raised his arm in
the "power to the people" salute.
The pickets were mostly students; but they included
former students, parents of students, and concerned citizens.
They had made proposals to the school board on
their demands and were turned down. Hence the picketing.
The picketing was mostly by black students who
were counseled and advised by a faculty member of the
school. The school contained 1,800 students. Those
counseling the students advised they must be quiet, walk
hand in hand, no whispering, no talking.
Twenty-five policemen were stationed nearby. There
was noise but most of it was produced by the police who
used loudspeakers to explain the local ordinance and to
announce that arrests might be made. The picketing
did not stop, and some 40 demonstrators, including appellant,
were arrested.
The picketing lasted 20 to 30 minutes and some students
went to the windows of the classrooms to observe
it. It is not clear how many there were. The picketing
GRA YNED v. CITY OF ROCKFORD 123
104 DouGLAS, .T., dissenting in part
was, however, orderly or, as one officer testified, "very
orderly." There was no violence. And appellant made
no noise whatever.
What Mr. Justice Roberts said in Hague v. CIO, 307
U. S. 496, 515-516, has never been questioned:
"Wherever the title of streets and parks may rest,
they have immemorially been held in trust for the
use of the public and, time out of mind, have been
used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.
Such use of the streets and public places has,
from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The
privilege of a citizen of the United States to use the
streets and parks for communication of views on
national questions may be regulated in the interest
of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and
convenience, and in consonance with peace and good
order; but it must not, in the guise of regulation,
be abridged or denied."
We held in Cox v. Louisiana, 379 U. S. 536, 544--545,
that a State could not infringe the right of free speech and
free assembly by convicting demonstrators under a "disturbing
the peace" ordinance where all that the students
in that case did was to protest segregation and discrimination
against blacks by peaceably assembling and marching
to the courthouse where they sang, prayed, and listened
to a speech, but where there was no violence, no rioting,
no boisterous conduct.
The school where the present picketing occurred was
the center of a racial conflict. Most of the pickets were
indeed students in the school. The dispute doubtless
disturbed the school; and the blaring of the loudspeakers
of the police was certainly a "noise or diversion" in the
124 OCTOBER TERM, 1971
DOUGLAS, J., dissenting in part 408U. S.
meaning of the ordinance. But there was no evidence
that appellant was noisy or boisterous or rowdy. He
walked quietly and in an orderly manner. As I read
this record, the disruptive force loosed at this school
was an issue dealing with race-an issue that is preeminently
one for solution by First Amendment means.*
That is all that was done here; and the entire picketing,
including appellant's part in it, was done in the best
First Amendment tradition.
*The majority asserts that "appellant's sole claim ... is that he
was convicted under facially unconstitutional ordinances" and that
there is, therefore, no occasion to consider whether his activities were
protected by the First Amendment. Ante, at 106 n. 1. Appellant
argues, however, that the ordinance is overly broad in that it punishes
constitutionally protected activity. A statute may withstand an
overbreadth attack "only if, as authoritatively construed ... , it
is not susceptible of application to speech ... that is protected by
the First and Fourteenth Amendments." Gooding v. Wilson, 405
U. S. 518, 520 (1972) If the ordinance applies to appellant's activities
and if appellant's activities are constitutionally protected, then
the ordinance is overly broad and, thus, unconstitutional. There is
no merit, therefore, to the Court's suggestion that the question
whether "appellant's particular beha.vior was protected by the First
Amendment," ante, at 106 n. 1, is not prrsrnt.cc.l.
UNITED STATES v. BYRUM 125
Syllabus
UNITED STATES v. BYRUM, EXECUTRIX
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 71-308. Argued March 1, 1972-Decided June 26, 1972
Decedent transferred to an irrevocable trust for the benefit of his
children (and if they died before the trust ended, their surviving
children) stock in three> unlisted corporations that he controlled,
retaining the right to vote the transferred stock, to veto the transfer
by the trustee (a bank) of any of the stock, and to remove the
trustee and appoint another corporate trustee as successor. The
right to vote the transferred stock, together with the vote of the
stock decedent owne«I at the time of his death, gave him a majority
vote in each of the corporations. The Commissioner of
Internal Revenue determined that the transferred stock was includable
in decedent's gross estate under § 2036 (a) of the Internal
Revenue Code of 1954, which requires the inclusion in a
decedent's gross estate of the value of any property he has
transferred by inter vivos gift, if he retained for his lifetime
" ( 1) the . . . enjoyment of . . . the property transferred, or
(2) the right, either alone or in conjunction with any person, to
designate the persons who shall ... enjoy ... the income therefrom."
The Commissioner claimed that decedent's right to vote
the transferred shares and to veto any sale by the trustee, together
with the ownership of other shares, made the transferred
shares includable under § 2036 (a) (2), because decedent retained
control over corporate dividend policy and, by regulating the flow
of income to the trust, could shift or defer the beneficial enjoyment
of trust income betw~en the present beneficiaries and remaindermen,
and under § 2036 (a) (1) because, by reason of
decedent's retained control over the corporations, he had the
right to continue to benefit economically from the transferred
shares during his lifetime. Held:
1. Decedent did not retain the "right," within the meaning of
§ 2036 (a) (2), to designate who was to enjoy the trust income.
Pp. 131-144.
(a) A settlor's retention of broad management powers did not
necessarily subject an inter vivas trust to the federal estate tax.
Pp. 131-135.
126 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
(b} In view of legal and business constraints applicable to the
payment of dividends, especially where there are minority stockholders,
decedent's right to vote a majority of the shares in these
corporations did not give him a de facto position tantamount to
the power to accumulate income in the trust. Pp. 135-144.
2. Deccdcnt's voting control of the stock did not constitute retention
of the enjoyment of the transferred stock within the meaning
of§ 2036 (a\ (1), since the decedent had transferred irrevocably
the title to the stork and right to the income therefrom. Pp. 145-
150.
440 F. 2d 949, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C. J., and DouGLAS, STEWART, MARSHALL, and REHNQUIST, JJ.,
joined. WHITE, J., filed a dissenting opinion, in which BRENNAN
and BLACKMUN, .JJ., joined, post, p. 151.
Matthew J. Zinn argued the cause for the United
States. With him on the briefs were Solicitor General
Griswold, Assistant Attorney General Crampton, Loring
W. Post, and Donald H. Olson.
Larry H. Snyder argued the cause and filed a brief for
respondent.
Simon H. Rifkind, Adrian W. De Wind, James B. Lewis,
and Maurice Austin filed a brief for Gilman et al.,
Executors, as amici curiae urging affirmance.
MR. JUSTICE POWELL delivered the opinion of the
Court.
Decedent, Milliken C. Byrum, created in 1958 an
irrevocable trust to which he transferred shares of stock
in three closely held corporations. Prior to transfer,
he owned at least 71 % of the outstanding stock of each
corporation. The beneficiaries were his children or, in
the event of their death before the termination of the
trust, their surviving children. The trust instrument
specified that there be a corporate trustee. Byrum
designated as sole trustee an independent corporation,
Huntington National Bank. The trust ~greement vested
UNITED STATES v. BYRUM 127
125 Opinion of the Court
in the trustee broad and detailed powers with respect
to the control and management of the trust property.
These powers were exercisable in the trustee's sole discretion,
subject to certain rights reserved by Byrum:
(i) to vote the shares of unlisted stock held in the
trust estate; (ii) to disapprove the sale or transfer of
any trust assets, including the shares transferred to the
trust; (iii) to approve investments and reinvestments;
and (iv) to remove the trustee and "designate another
corporate Trustee to serve as successor." Until the
youngest living child reached a.ge 21, the trustee ,vas
authorized in its "absolute and sole discretion" to pay
the income and principal of the trust to or for the benefit
of the beneficiaries, "with due regard to their individual
needs for education, care, maintenance and
support." After the youngest child reached 21, the trust
was to be divided into a separate trust for each child,
to terminate when the beneficiaries reached 35. The
trustee was authorized in its discretion to pay income
and principal from these trusts to the beneficiaries for
emergency or other "worthy need," including education.1
1 The Trust Agreement in pertinent part provided:
"Article IV. Irrevocable Trust.
"This Trust shall be irrevocable and Grantor reserves no rights,
powers, privileges or benefits either as to the Trust estate or the
control or management of the trust property, except as set forth
herein.
"Article V. Powers Of The Trustee.
"The Trustee shall have and possess and may exercise at all times
not only the rights, powers and authorities incident to the office
or required in the discharge of this trust, or impliedly conferred
upon or vested in it, but there is hereby expressly confl'rred upon
and vested in the Trustee all the rights, powers and authorities embodied
in the following paragraphs in this ArticlP, which are shown
by way of illustration but not by way of limitation:
"Sell. 5.02 To sell at public or private sale, to grant options to
sell, to exchange, re-exchange or otherwise dispose of all or part of
128 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
When he died in 1964, Byrum owned less than 50%
of the common stock in two of the corporations and
59% in the third. The trust had retained the shares
the property, real or personal, at any time belonging to the Trust
Estate, upon such terms and conditions and for such consideration
as said Trustee shall determine, and to execute and deliver all instruments
of sale or conveyance necessary or desirable therefor.
"Investments. 5.05 To invest any money in the Trust Estate in
stocks, bonds, investment trusts, common trust funds and any other
securities or property, real or personal, secured or unsecured, whether
the obligations of individuals, corporations, trusts, associations, governments,
expressly including shares and/ or obligations of its own
corporation, or otherwise, either within or outside of the State of
Ohio, as the Trustee shall deem advisable, without any limitation
whatsoever as to the character of investment under any statute or
rule of law now or hereafter enacted or existing regarding trust fund,
or investments by fiduciaries or otherwise.
"Voting. ,5.06 To vote by proxy or in person any stock or security
comprising a part of the Trust F..state, at any meeting, except that,
during Grantor's lifetime, all voting rights of any stocks which are
not listed on a stock exchange, shall be exercised by Grantor, :md
after Grantor's death, the voting rights of such stocks shall be exercised
by Grantor's wife during her lifetime.
"Le.ases. 5.09 To make leases for any length of time, whether
longer or shorter than the duration of this Trust, to commence at
the present time or in the future; to extend any lease; to grant options
to lease or to renew any lease; it being expressly understood
that the Trustee may grant or enter into ninety-nine year leases,
renewable forever.
"Income Allocation. 5.13 To determine in its discretion how all
receipts and disbursements, capital gains and lossrs, ~hall br ehargC'd,
credited or apportioned between income and principal.
"Limitation. 5.15 Notwithstanding the powrrs of the Trustee
grantrd in paragraphs 5.02, 5.05, 5.09 and 5.11 above, the Trustee
shall not exercise any of the powers granted in said paragraphs unless
(a) during Grantor's lifetime said Grantor shall approve of the
action taken by the Trustee pursuant to said powers, (b) after the
UNITED STATES v. BYRUM 129
125 Opinion of the Court
transferred to it, with the result that Byrum had continued
to have the right to vote not less than 71 % of
the common stock m each of the three corporadeath
of the Grantor and as long as his wife, Marian A. Byrum, shall
live, said wife shall approve of the action taken by the Trustee pursuant
to said powers.
"Article VI. Distribution Prior To Age 21.
"Until my youngest living child reaches the age of twenty-one
(21) years, the Trustee shall exercise absolute and sole discretion in
paying or applying income and/or principal of the Trust to or for
the brnefit of Grantor's child or children and thrir issue, with due
regard to their individual needs for education, care, maintenance and
support and not necessarily in equa.J shares, per stirpes. The decision
of the Trustee in the dispensing of Trust funds for such purposes
shall be final and binding on all interested persons.
"Article VI. Division At Age 21.
"Principal Disbursements. 6.02 If prior to attaining the age of
thirty-five (35), any one of the children of Grantor shall have an
emergency such as an extended illness requiring unusual medical or
hospital expenses, or any other worthy need including education of
such child, the Trustee is hereby authorized and empowered to pay
such <'hild or use for his or her benefit such amounts of income
and principal of the Trust as the Trustee in its sole judgment and
discretion shall determine.
"Article VIII. Removal of Trustee.
"If the Trustee, The Huntington National Bank of Columbus,
Columbus, Ohio, shall at any time change its name or combine with
one or morr corporations under one or more different names, or if
its assets and business at any time shall be purchased and absorbed
by another trust company or corporation authorized by law to accept
these trusts, the new or successor corporation shall be considered
as the said The Hnntington National Bank of Columbus, Ohio, and
shall continue said Trusts and succeed to all the rights, privileges,
duties and obligations hrrcin conferred upon said The Huntington
National Bank of Columbus, Columbus, Ohio, Trust.cc.
"Grantor, prior to his death, and after the death of the Grantor,
the Grantor's wife, Marian A. Byrum, dming her lifetime, may remove
or cause the removal of The Huntington National Bank of
Columbus, Ohio, or any successor Trustee, as Trustee under the
130 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
tions.2 There were minority stockholders, unrelated to
Byrum, in each corporation.
Following Byrum's death, the Commissioner of Internal
Revenue determined that the transferred stock
was properly included within Byrum's gross estate under
§ 2036 (a) of the Internal Revenue Code of 1954, 26
U. S. C. § 2036 (a). That section provides for the inclusion
in a decedent's gross estate of all property which
the decedent has transferred by inter vivas transaction,
if he has retained for his lifetime " ( 1) the possession
or enjoyment of, or the right to the income from, the
property" transferred, or "(2) the right, either alone or
in conjunction with any person, to designate the persons
who shall possess or enjoy the property or the income
Trusts and may thereupon designate another corporate Trustee to
serve as successor Trustee hereunder.
"Article IX. Miscellaneous Provisions.
"Disrretion. 9.02 If in the opinion of the Trustee it shall appear
that the total income of any beneficiary of any Trust fund created
hereunder is insufficient for his or her proper or suitable support,
care and comfort, and education and that of said beneficiary's children,
the Trustee is authorized to pay to or for such beneficiary or
child such additional amounts from the principal of the Trust Estate
as it shall deem advisable in order to provide suitably and properly
for the support, care, comfort, and education of said beneficiary and
of said benefiPiary's children, and the act.ion of the Trustee in making
such payments shall be binding on all 11ersons."
2 The actual proportions were: Total
Percentage
Owned by
Decedent.
Byrum Lithographing Co.,
Inc. 59
35
42
Graphic Realty, Inc.
Bychrome Co.
Percentage
Owned by
Trust
12
48
46
Percentage
Owned by
Decedent
and Trust
71
83
88
UNITED STATES v. BYRUM 131
125 Opinion of the Court
therefrom." 3 The Commissioner determined that the
stock transferred into the trust should be included in
Byrum's gross estate because of the rights reserved by
him in the trust agreement. It was asserted that his
right to vote the transferred shares and to veto any sale
thereof by the trustee, together with the ownership of
other shares, enabled Byrum to retain the "enjoyment
of ... the property," and also allowed him to determine
the flow of income to the trust and thereby "designate
the persons who shall ... enjoy ... the income."
The executrix of Byrum's estate paid an additional
tax of $13,202.45, and thereafter brought this refund
action in District Court. The facts not being in dispute,
the court ruled for the executrix on cross motions
for summary judgment. 311 F. Supp. 892 (SD Ohio
1970). The Court of Appeals affirmed, one judge dissenting.
440 F. 2d 949 (CA6 1971). We granted the
Government's petition for certiorari. 404 U. S. 937
(1971).
I
The Government relies primarily on its claim, made
under § 2036 (a) (2), that Byrum retained the right to
3 26 U. S. C. § 2036 provides:
"(a) General rule.
"The value of the gross estate shall include the value of all property
to the extent of any interest therein of which the decedent has
at any time made a transfer (except in case of a bona fide sale for
an adequate and full consideration in money or money's worth), by
trust or otherwise, under which he has retained for his life or for
any period not ascertainable without reference to his death or for
any period which docs not in fact end before his death-
" (1) the possession or enjoyment of, or the right to the income
from, the property, or
"(2) the right, either alone or in conjunction with any person, to
designate the persons who shall possess or enjoy the property or
the income therefrom."
132 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
designate the persons who shall enjoy the income from
the transferred property. The argument is a complicated
one. By retaining voting control over the corporations
whose stock was transferred, Byrum was in a
position to select the corporate directors. He could
retain this position by not selling the shares he owned and
by vetoing any sale by the trustee of the transferred
shares. These rights, it is said, gave him control over
corporate dividend policy. By increasing, decreasing,
or stopping dividends completely, it is argued that Byrum
could "regulate the flow of income to the trust" and
thereby shift or defer the beneficial enjoyment of trust
income between the present beneficiaries and the remainderrnen.
The sum of this retained power is said
to be tantamount to a grantor-trustee's power to accumulate
income in the trust, which this Court has recognized
constitutes the power to designate the persons
who shall enjoy the income from transferred property.4
At the outset we observe that this Court has never
held that trust property must be included in a settlor's
gross estate solely because the settlor retained the po·wer
4 United States v. O'Malley, 383 U. S. 627 (1966).
It is irrelevant to this argument how many shares Byrum transferred
to the trust. Had he retained in his own name more than
50% of the shares (as he did with one corporation}, rather than
retaining the right to vote the transferred shares, he would still
have had the right to elect the board of dire<'tors and the same power
to "control" thC' flow of dividends. Thus, the> Governrnrnt is arguiug
that a majority shareholder's estate must be taxed for stock transferred
to a trust if he owned at least ,50% of the voting stock after
the transfer or if he retained the right to vote the transferred stock
and could thus vote more than 50% of the stock. It would follow also
that if a settlor controlled 50% of the voting stock and similarly
tran,;ferred some other class of stock for which the payment of dh·idcnds
had to be authorized by the directors, his estate would also
be taxed. Query: what would happen if he had the right to vote
less than 50% of the voting stock but still "controlled" the rnrporation?
See n. 10, infra.
UNITED STATES v. BYRUM 133
125 Opinion of the Court
to manage trust assets. On the contrary, since our decision
in Reinecke v. Northern Trust Co., 278 r. S. 339
(1929), it has been recognized that a settlor's retention
of broad powers of management does not necessarily subject
an inter vivas trust t-0 the federal estate tax.' Although
there was no statutory analogue to § 2036 (a) (2)
when Northern Trust was decided, several lower court
decisions decided after the enactment of the predecessor
of § 2036 (a) (2) have upheld the settlor's right to
exercise managerial powers without incurring estate-tax
liability.G In Estate of King v. Commissioner, 37 T. C.
973 (1962), a settlor reserved the power to direct the
trustee in the management and investment of trust
assets. The Government argued that the settlor was
thereby empowered to cause investments to be made
in such a manner as to control significantly the flow
of income into the trust. The Tax Court rejected this
argument, and held for the taxpayer. Although the
court recognized that the settlor had reserved "wide
latitude in the exercise of his discretion as to the types
of investments to be made," id., at 980, it did not find
this control over the flow of income to be equivalent
5 The Court has never overturned this ruling. See McCormick v.
Burnet, 283 U. S. 784 (1931); Helvering v. Duke, 290 U. S. 591
(1933) (affirmed by an equally divided Court). In Commissioner
V. Estate of Church, 335 U. S. 632 (1949) , and Estate of Spiegel v.
Commissioner, 335 U. S. 701 (1949), the Court invited, sua sponte,
argument of this question, but did not reach the issue in either
opinion.
G See, e. g., Old Colony Trust Co. v. United States, 423 F. 2d 601
(CAl 1970); United States v. Powell, 307 F. 2d 821 (CAlO 1962);
Estate of Ford v. Commissioner, 53 T. C. 114 (1969), aff'd, 450 F.
2d 878 (CA2 1971); Estate of Wilson v. Commissioner, 13 T. C. 869
(1949) (en bane), aff'd, 187 F. 2d 145 (CA3 1951); Estate of Budd
v. Commissioner, 49 T. C. 468 (1968); Estate of Pardee v. Commissioner,
49 T. C. 140 (1967); Estate of King v. Commissioner, 37
T. C. 973 (1962).
134 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
to the power to designate who shall enJOY the income
from the transferred property.
Essentially the power retained by Byrum is the same
managerial power retained by the settlors in Northern
Trust and in King. Although neither case controls this
one-Northern Trust, because it was not decided under
§ 2036 (a)(2) or a predecessor; and King, because it is
a. lower court opinion-the existence of such precedents
carries weight.7 The holding of Northern Trust, that
the settlor of a trust may retain broad powers of management
without adverse estate-tax consequences, may
have been relied upon in the drafting of hundreds of
inter vivos trusts.8 The modification of this principle
now sought by the Government could have a seriously
adverse impact, especially upon settlors (and their estates)
who happen to have been "controlling" stock-
7 The dissenting 011inion attempts to distinguish the cases, holding
that a settlor-trustce's retained powers of management do not bring
adverse estate-tax ron1<rq11rnccs, on the ground that management
of trust assets is not the same as the power retained by Byrum because
a srttlor-trustec is bound by a fiduciary duty to treat the life
tenant l:JC'Ill'firiarirs and remaindermrn as the trust instrument
specifies. But the argument that in the reserved-power-of-management
cases there was "a judicially enforceable strict standard
capable of invocation by the trust beneficiaries by reference to the
terms of t.he trust agrrrment," post, at 166, ignores the fact that
trust agrermcnts may and often do provide for the widest investment
discretion.
8 Assuming, arguendo, that Mn . .JUSTICE WHITE is correct in suggesting
that in 19.58, when this trust instrument was drawn, the
estate-tax consequences of the sett.!or's retained powers of management
were less certain than they are now, this Court's failure to
overrule Northern Trust, plus the rxistence of recent cases such as
King and the cases cited in n. 6, have undoubtedly been relied on by
the draftsmcn of more recent trusts with considerable justification.
Our concern as to this point is not so much with whether Byrum
properly relied on the precedents, but with the probability that
others did rely thereon in good faith.
UNITED STATF..S v. BYRUM 135
125 Opinion of the Court
holders of a closely held corporation. Courts properly
have been reluctant to depart from an interpretation
of tax law which has been generally accepted when the
departure could have potentially far-reaching consequences.
When a principle of taxation requires reexamination,
Congress is better equipped than a court
to define precisely the type of conduct which results in
tax consequences. When courts readily undertake such
tasks, taxpayers may not rely ·with assurance on what
appear to be established rules lest they be subsequently
overturned. Legislative enactments, on the other hand,
although not always free from ambiguity, at least afford
the taxpayers advance warning.
The Government argues, however, that our opinion
in United States v. O'Malley, 383 U. S. 627 (1966),
compels the inclusion in Byrum's estate of the stock
owned by the trust. In O'Malley, the settlor of an
inter vivas trust named himself as one of the three
trustees. The trust agreement authorized the trustees
to pay income to the life beneficiary or to accumulate
it as a part of the principal of the trust in their "sole
discretion." The agreement further provided that net
income retained by the trustees, and not distributed in
any calendar year, " 'shall become a part of the principal
of the Trust Estate.'" Id., at 629 n. 2. The Court
characterized the effect of the trust as follows:
"Here Fabrice [ the settlor] was empO\vered, with the
other trustees, to distribute the trust income to
the income beneficiaries or to accumulate it and
add it to the principal, thereby denying to the
beneficiaries the privilege of immediate enjoyment
and conditioning their eventual enjoyment upon
surviving the termination of the trust." I d., at 631.
As the retention of this legal right by the settlor, acting
as a trustee "in conjunction" with the other trustees,
136 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
came squarely within the language and intent of the
predecessor of § 2036 (a) (2), the taxpayer conceded that
the original assets transferred into the trust were includable
in the decedent's gross estate. I d., at 632.
The issue before the Court was whether the accumulated
income, which had been added to the principal pursuant
to the reservation of right in that respect, was also includable
in decedent's estate for tax purposes. The Court
held that it was.
In our view, and for the purposes of this case, O'Malley
adds nothing to the statute itself. The facts in that
case were clearly within the ambit of what is now
§ 2036 (a). That section requires that the settlor must
have "retained for his life ... (2) the right ... to designate
the persons who shall possess or enjoy the property or the
income therefrom." ()'Malley was covered precisely by
the statute for two reasons: ( 1) there the sett I or had
reserved a legal right, set forth in the trust instrument;
and (2) this right expressly authorized the settlor, "in
conjunction" with others, to accumulate income and
thereby "to designate" the persons to enjoy it.
It must be conceded that Byrum reserved no such
"right" in the trust instrument or otherwise. The term
"right," certainly when used in a tax statute, must be
given its normal and customary meaning. It connotes
an ascertainable and legally enforceable power, such
as that involved in O' Malley.9 Here, the right ascribed
to Byrum was the power to use his majority position
and influence over the corporate directors to "regulate
the flow of dividends" to the trust. That "right" was
D Although M1c ,J us-r1ci,: Wn!'n:'s dissent argues that the use of
the word "power" in O'Malley implies that the Court's concern was
with prartical reality rather than legal form, an examination of that
opinion does not indicate that the trrm was used other than in the
sense of legally empowered. At any rate, the "power" was a right
reser\'ed to thr sett !or in the trust instrument itself.
UNITED STATES v. BYRUM 137
125 Opinion of the Court
neither ascertainable nor legally enforceable and hence
was not a right in any normal sense of that term."'
Byrum did retain the legal right to vote shares held
by the trust and to veto investments and reinvestments.
But the corporate trustee alone, not Byrum, had the
right to pay out or withhold income and thereby to
designate who among the beneficiaries enjoyed such
income. Whatever power Byrum may have possessed
with respect to the flow of income into the trust was
derived not from an enforceable legal right specified in
the trust instrument, but from the fact that he could
elect a majority of the directors of the three corporations.
The power to elect the directors conferred no
legal right to command them to pay or not to pay dividends.
A majority shareholder has a fiduciary duty
not to misuse his power by promoting his personal interests
at the expense of corporate interests.11 Moreover,
10 The "control" rationale, urged by the Government and adopted
by the dissenting opinion, would create a standard-not specified in
the statute--so vague and amorphous as to be impossible of ascertainment
in many instanC'es. See n. 13, infra. Neither the Government
nor the dissent sheds light on the absence of an ascertainable
standard. The Government speaks vaguely of drawing the line between
"an unimportant minority interest" (whatever that may be)
and "voting control." The dissenting opinion does not address this
problem at all. See Comment, Sale of Control Stock and thP Brukns'
Transaction Exemption-Before and After the Wheat Rrport, 49
Tex. L. Rev. 475, 479-481 (1971).
11 Such a fiduciary rrlationship would exist in almost every, if not
every, State. Ohio, from which this case arises, is no exception:
"[I] f the majority undertakes, either directly or indirectly,
through the directors, to conduct, manage, or direct the corporation's
affairs, they must do so in good faith, and with an eye single to the
best interests of the corporation. It is clear that the interests of the
majority are not always identical with the interests of all the shareholders.
The obligation of the majority or of the dominant group of
shareholders acting for, or through, the corporation is fiduciary in
nature. A court of equity will gmnt appropriate relief where the
138 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
the directors also have a fiduciary duty to promote the
interests of the corporation.12 However great Byrum's
influence may have been with the corporate directors,
their responsibilities were to all stockholders and were
enforceable according to legal standards entirely unrelated
to the needs of the trust or to Byrum's desires
with respect thereto.
The Government seeks to equate the de facto position
of a controlling stockholder with the legally enforceable
"right" specified by the statute. Retention of corporate
control (through the right to vote the shares)
is said to be "tantamount to the power to accumulate
income" in the trust ,vhich resulted in estate-tax consequences
in O'Malley. The Government goes on to assert
that "[t]hrough exercise of that retained power,
[ Byrum] could increase or decrease corporate dividends
... and thereby shift or defer the beneficial enjoyment
of trust income." 13 This approach seems to us
majority or dominant group of shareholders act in their own interest
or in the interest of others so as to oppress the minority or commit
a fraud upon their rights." 13 Ohio .Tur. 2d, Corporations § 662,
pp. 90--91 (footnotes omitted).
SeE' Overfield v. Pennroad Corp., 42 F. Supp. 586 (ED Pa. 1941),
rev'd on other grounds, 146 F. 2d 889 (CA3 1944).
12 "The directors of the corporation represent the corporation, not
just one segment of it, but all of it. The fiduciary nature of the
directors' obligation requires that, in the management of the corporation's
affairs, they do not presume to play favorites among the
shareholdrrs or among classes of shareholders." 12 Ohio .Tur. 2d,
Corporations § 497, p. 618.
13 The Govrrnment uses the terms "control" and "rontrolling storkholder"
as if they were words of art with a fixed and ascertainable
meaning. In fact, the roncept of "control" is a nebulous one. Alt.
hough in this case Byrum possessed "voting control" of 1he three
corporations (in view of his being able to vote morr than 50% of
the stock in each), tlw concept is too variable and imprecise to
constitute the basis per se for imposing tax liability under § 2036 (a).
Under most rircumstances, a stockholder who has the right to vote
UNITED STATES v. BYRU:\1 139
125 Opinion of the Court
not only to depart from the specific statutory language,14
but also to misconceive the realities of corporate life.
There is no reason to suppose that the three corporations
controlled by Byrum were other than typical small
businesses. The customary vicissitudes of such enterprises-
bad years; product obsolescence; new competition;
disastrous litigation; new, inhibiting Government
regulations; even bankruptcy-prevent any certainty or
predictability as to earnings or dividends. There is no assurance
that a small corporation will have a flow of net
earnings or that income earned will in fact be available
for dividends. Thus, Byrum's alleged de facto "power to
more than 50% of the voting shares of a corporation "controls it"
in the sense that he may elect the board of directors. But such a
stockholder would not control, under the laws of most States, certain
corporate transactions surh as mergers and sales of assets. Moreover,
control- in terms of cffe<'tive power to elect the board under normal
circumstances-may exist where there is a right to vote far less
than 50% of the shares. This will vary with the size of the corporation,
the number of shareholders, and the conrcutration (or lark
of it) of ownership. See generally 2 L. Loss, Securitie~ Rrgulation
770-783 ( 1961). Securities law practitioners recognize that possessing
10% or more of voting powrr i::1 a factor 011 which the
Sc<'uritics and Exchange Commission relies as one of the indicia
of control. SEC, Disclosure to Investors-The \\'heat Report
245-247 (1969).
14 In advocating this de facto approach, the Government relies on
our opinion in Commissioner v. Sunnen, 333 U. S. 591 (1948). Sunnen
was a personal income tax case in which the Court found the
taxpayer had made an assignment of income. The reasoning relied
on the de facto power of a controlling shareholder to regulate corporate
business for his personal objectives. This case is an estate
tax case, not an income tax case. J\foreovc·r, unlike assignmcnt-ofincome
C/lses, in which the issue is who has the power over income,
this C/lse concerns a statute written in terms of the "right" to designate
the recipient of income. The use of the term "right" implies
that restraints on the exercise of power are to be recognized and
that such restraints deprive the person exercising the power of a
"right" to do so.
140 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
control the flow of dividends" to the trust was subject to
business and economic variables over which he had
little or no control.
Even where there are corporate earnings, the legal
power to declare dividends is vested solely in the corporate
board. In making decisions with respect to dividends,
the board must consider a number of factors.
It must balance the expectation of stockholders to reasonable
dividends when earned against corporate needs
for retention of earnings. The first responsibility of the
board is to safeguard corporate financial viability for
the long term. This means, among other things, the
retention of sufficient earnings to assure adequate working
capital as well as resources for retirement of debt,
for replacement and modernization of plant and equipment,
and for growth and expansion. The nature of
a corporation's business, as well as the policies and longrange
plans of management, are also relevant to dividend
payment decisions." Directors of a closely held, small
corporation must bear in mind the relatively limited
access of such an enterprise to capital markets. This
may require a more conservative policy with respect
to dividends than would be expected of an established
corporation with securities listed on national exchanges.16
15 The sprrtrum of types of corporat!' hus.incsses, and of prrmissible
policies with respect to the retention of earnings, is broad
indeed. It ranges from the public utility with relatively assured
and stable income to the new and speculative corporation engaged
in a cyclical business or organized to exploit a new patent or unproved
technology. Some corporations pay no dividends at all, as
they arc organized mnely to hold static assets for prolonged periods
(e. g., land, minnal rP~.ources, and the like). Corporntio11s which
emphasize growth tend to low dividend payments, whereas mature
corporations may pursue generous dividend policies.
"'Thomas v. Matthews, 94 Ohio St. 32, 55-56, 113 K. E. 669, 675
(1916):
"[I]t is the duty of the directors, in detc-rrnining the amount of
net earnings available for t.he payment of dividends, to take into
UNITED STATES v. BYRU:VI 141
125 Opinion of the Court
Nor do small corporations have the flexibility or the
opportunity available to national concerns in the utilization
of retained earnings. When earnings are substantial,
a decision not to pay dividends may result only in
the accumulation of surplus rather than growth through
internal or external expansion. The accumulated earnings
may result in the imposition of a penalty tax."
These various economic considerations are ignored at
the directors' peril. Although vested with broad discretion
in determining whether, when, and what amount
of dividends shall be paid, that discretion is subject
to legal restraints. If, in obedience to the will of the
majority stockholder, corporate directors disregard the
interests of shareholders by accumulating earnings to an
unreasonable extent, they are vulnerable to a derivative
suit.18 They are similarly vulnerable if they make
an unlawful payment of dividends in the absence of net
earnings or available surplus, 19 or if they fail to exeraccount
the needs of the company in its business and sums necessary
in the operation of its business until the income from further operations
is available, the amount of its debts, the necessity or advisability
of paying its debts or at least reducing them within the
limits of the company's credit, the preservation of its capital stock
as represented in the assets of the company as a fund for the protection
of its creditors and the character of its surplus assets,
whether cash, credits or merchandise."
17 Internal Revenue Code of 1954, Subc. G, pt. I , §§ 531-537.
26 U. S. C. §§ 531- 537.
18 Had Byrum caused the board to follow a dividend policy, designed
to minimize or cut off income to the trust, which resulted
in the imposition of the penalty for accumulated earnings not dist
ribut<'d to shareholders, thrre might have bePn substantial grounds for
a drrivative suit. A drrivative suit also would have been a possibility
had dividends been paid imprudently to increase the trust's income
at the expense of corporate liquidity. Minority shareholders in Ohio
may bring derivative suits under Ohio Rule Civ. Proc. 23.1.
19 In most States, the power to declare dividends is Yestcd solely
in the directors. 11 W. Fletcher, Cyclopedia Corporations, c. 58, § 5320.
Ohio is no exception, and it limits the authority of directors to pay
142 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
cise the requisite degree of care in discharging their duty
to act only in the best interest of the corporation and
its stockholders.
Byrum was similarly inhibited by a fiduciary duty
from abusing his position as majority shareholder for
personal or family advantage to the detriment of the
corporation or other stockholders. There were a substantial
number of minority stockholders in these corporations
who were unrelated to Byrum.20 Had Byrum
and the directors violated their duties, the minority shareholders
,vould have had a cause of action under Ohio
law.21 The Huntington National Bank, as trustee, was
one of the minority stockholders, and it had both the
right and the duty to hold Byrum responsible for any
wrongful or negligent action as a controlling stockholder
or as a director of the oorporations.22 Although Byrum
had reserved the right to remove the trustee, he would
have been imprudent to do this when confronted by the
dividends depending on available corporate surplus. Ohio Rrv.
Code Am1. § 1701.:33. Although liability generally exists irrcspc-ctive
of a statute, nearly all States have statutes rc-gulrrting thr
liability of directors who participate in the payment of improper
dividends. 12 Fletrhn, supra, c. 58, § 5432. Again, Ohio is no
cxcrption. Ohio Rrv. Code Ann. § 1701.95.
20 App. 30-32. In Byrnm Lithographing Co., Inc, none of the
other 11 storkholders appears to be related by name to Byrum.
In llychromc Co. five of the eight stockholders appear to be unrelated
to the Byrums; and in Graphic Realty Co. 11 of the 14 stockholders
appear to be unrelated.
"
1 See Wilberding v . .ii.filler, 90 Ohio St. 28, 42, 106 ~- E. 665, 669
(1914):
"An arbitrary disregard of the rights of stockholders to dividends
or other improper treatment of tlw assets of the company would be
relieved against."
22 The trust instrument Pxpliritly granted the trustee the power
" ft]o rnforce, abandon, ckfc11d against, or have adjndirafrd by )('gal
prorecdings, arbitration or by compromise, any claim or demand
whatsocvrr ari~ing out of or which may exist against the Trust
Estate." App. 10-11.
UNITED STATES v. BYRUM 143
125 Opinion of the Court
trustee's complaint against his conduct. A successor
trustee would succeed to the rights of the one removed.
We conclude that Byrum did not have an unconstrained
de facto power to regulate the flow of dividends to the
trust, much less the '•right" to designate who was to enjoy
the income from trust property. His ability to affect,
but not control, trust income, was a qualitatively different
power from that of the settlor in O'Malley, who
had a specific and enforceable right to control the income
paid to the beneficiaries.23 Even had Byrum managed
to flood the trust with income, he had no way
of compelling the trustee to pay it out rather than accumulate
it. Nor could he prevent the trustee from
making payments from other trust assets,2• although admittedly
there were few of these at the time of Byrum's
death. We cannot assume, however, that no other assets
would come into the trust from reinvestments or other
gifts.25
23 The Government cites two other opinions of this Court, in addition
to O'Malley, to support its argument. In both Commi.ssioner
v. Estate of Holmes, 326 U. S. 480 (1946), and Lober v. United
States, 346 U. S. 335 ( 1953), the grantor reserved to himself the power
to distribute to the beneficiaries the entire principal and accumulated
income of the trust at any time. This power to terminate
the trust and thereby designate the beneficiaries at a time selected
by the settlor, is not comparable to the powers reserved by Byrum in
this case.
24 While the trustee could not acquire or dispose of investments
without Byrum's approval, he was not subject to Byrum's orders.
Byrum could prevent the acquisition of an asset, but he could not
require the trustee to acquire any investment. Nor could he
compel a sale, although he could prevent one. Thus, if there were
other income-producing assets in the trust, Byrum could not compel
the trustee to dispose of them.
25 In purporting to summarize the basis of our distinction of
0' Malley, the dissenting opinion states:
"Now the majority would have us accept the incompatible position
that a settlor seeking tax exemption may keep the power of income
144 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
We find no merit to the Government's contention
that Byrum's de facto "control," subject as it was to
the economic and legal constraints set forth above, was
tantamount to the right to designate the persons who
shall enjoy trust income, specified by § 2036 (a) (2).26
allocation by rendering the trust dependent on an income flow he
controls because the general fiduciary obligations of a director are
sufficient to eliminate the power to designate within the meaning of
§ 2036 (a) (2)." Post, at 157.
This statement, whfrh assumes the critical and ultimate conclusion,
incorrectly states the position of the Court. We do not hold that
a settlor "may keep the power of income allocation" in the way Mn.
JUSTICE WHITE sets out; we hold, for the reasons stated in this
opinion, that this settlor did not retain the power to allocate income
within the meaning of the statute.
26 The dissenting 011inion's view of the business world will come
as a surprise to many. The dissl'nt states:
"Tims, by instructing the directors he elected in thr controlled corponitions
that he thought dividends should or should not be drrlarrd
Byrum was able to oprn or close the spigot through whid1
the income flowed to the trust's life tenants." Post, at 152.
This appears to assume that all corporations, including the small
family type involved in this case, have a regular and dependable
flow of earnings available for dividends, and that if tlwre is a controlling
stockholder he simply turns the "spigot" on or off as dividends
may be desired. For the reasons set forth in this opinion, no such
dream world exists in the life of many corporations. But whatever
the situation may be generally, the fallacy in the dissenting opinion's
position here is that the rerord simply does not support it. This case
was decided on a motion for summary judgment. The record does
not disclose anything with respect to the earnings or financial conditions
of these corporations. We simply do not know whether there
were any earnings for the years in question, whether there was an
earned surplus in any of the corporations, or whether-if some earnings
be assumed-tlH'Y were adequate in light of other corporate
needs to justify dividend payments. Nor can we infer from the increase
in dividend payments in the year following Byrum's death that
higher dividends could have been paid previously. The increase
could be expl:J,ined as easily by insurance held by the corporations
on Byrum's life.
UNITED STATES v. BYRUM 145
125 Opinion of the Court
II
The Government asserts an alternative ground for
including the shares transferred to the trust within
Byrum's gross estate. It argues that by retaining control,
Byrum guaranteed himself continued employment
and remuneration, as well as the right to determine
whether and when the corporations would be liquidated
or merged. Byrum is thus said to have retained "the ...
enjoyment of ... the property" making it includable
within his gross estate under § 2036 (a)( 1). The Government
concedes that the ret{)ntion of the voting rights
of an "unimportant minority interest" would not require
inclusion of the transferred shares under § 2036
(a) (1). It argues, however, "where the cumulative
effect of the retained powers and the rights flowing
from the shares not placed in trust leaves the grantor
in control of a close corporation, and assures that control
for his lifetime, he has retained the 'enjoyment' of the
transferred stock." 27 Brief for United States 23.
It is well settled that the terms "enjoy" and "enjoyment,"
as used in various estate tax statutes, "are not
terms of art, but connote substantial present economic
benefit rather than technical vesting of title or estates."
Commi,ssioner v. Estate of Holmes, 326 U. S. 480, 486
27 At one point ]\JR. JusT1CE WHITE seems to imply that Byrum
also retained the enjoyment of the right to the income from the
transferred shares:
"When Byrum closed the spigot by deferring di\"idends of the controlled
corporations, thereby perpetuating his own 'enjoyment' of
these funds, he also in effect transferred income from the life
tt'nnnts to the rrmnindermen." (Emphasis added.) Post, at 152.
But, of course, <'Ven if diYidends were defrrred, the funds remained
in the corporation; Byrum could not use them himself.
146 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
(1946).28 For example, in Reinecke v. Northern Trust
Co., 278 U. S. 339 ( 1929), in which the critical inquiry
was whether the decedent had created a trust "intended
... 'to take effect in possession or enjoyment at
or after his death,' " 29 id., at 348, the Court held that reserved
powers of management of trust assets, similar to
Byrum's power over the three corporations, did not subject
an inter vivos trust to the federal estate tax. In
determining whether the settlor had retained the enjoyment
of the transferred property, the Court said:
"Nor did the reserved powers of management of
the trusts save to decedent any control over the
economic benefits or the enjoyment of the property.
He would equally have reserved all these
powers and others had he made himself the trustee,
but the transfer would not for that reason have
been incomplete. The shifting of the economic
interest in the trust property which was the subject
of the tax was thus complete as soon as the trust
was made. His power to recall the property and
of control over it for his own benefit then ceased
and as the trusts were not made in contemplation
~8 See 26 CFR § 20.2036-1 (b) (2):
"The 'use, possession, right to the income, or other enjoyment of
the transferred property' is considered as having been retained by
or reserved to the decedent to the extent that the use, possession,
right to the income, or other enjoyment is to be applied toward
the discharge of a legal obligation of the decedent, or otherwise for
his pecuniary benefit."
Although MR. JUSTICE WHITE questions the Court's failure to
interpret "possession or enjoyment" with "extreme literalness,"
post, at 154 n. 3, apparently the Commissioner does not do so either.
Reflection on the expansive nature of those words, particularly
"enjoyment," will demonstrate why interpreting them with "extreme
literalness" is an impo~bility.
29 Northern Trust was decided under the Revenue Act of 1921,
§ 402 ( c), 42 Stat. 278.
125
UNITED STATES v. BYRUM 147
Opinion of the Court
of death, the reserved powers do not serve to distinguish
them from any other gift inter vivos not
subject to the tax." 278 U. S., at 346-347.
The cases cited by the Government reveal that the
terms "possession" and "enjoyment," used in § 2036 (a)
( 1), were used to deal with situations in which the owner
of property divested himself of title but retained an
income interest or, in the case of real property, the
lifetime use of the property. Mr. Justice Black's opinion
for the Court in Commi'lsioner v. Estate of Church,
335 U. S. 632 (1949), traces the history of the concept.
In none of the cases cited by the Government has a
court held that a person has retained possession or
enjoyment of the property if he has transferred
title irrevocably, made complete delivery of the property
and relinquished the right to income where the property
is income producing.30
The Government cites only one case, Estate of Halland
v. Commissioner, l T. C. 564 (1943),31 in which
a decedent had retained the right to vote transferred
shares of stock and in which the stock was included
30 Helvering v. Hallock, 309 U. S. 106 (1940); Commissioner v.
Estate of Church, 335 U. S. 632 (1949); Lober v. United States,
346 U. S. 335 (1953); United States v. Estate of Grace, 395 U.S. 316
(1969); Estate of McNichol v. Commissioner, 265 F. 2d 667 (CA3),
cert. denied, 361 U. S. 829 (1959); Guynn v. United States, 437 F.
2d 1148 (CA4 1971). In all of these cases, as in Church, the grantor
retained either title or an income interest or the right to use real
property for his lifetime.
Despite Mn. JusTICE WHITE'S suggestion, post, at 154, we have
not "ignore[d] the plain language of the statute which proscribes
'enjoyment' as well as 'possession or . . . the right to income.' "
Rather, the cases we have cited clearly establish that the terms
"possession" and "enjoyment" have never been used as the dissent
argues.
31 The cited opinion supplemented an earlier opinion of the Board
of Tax Appeals in the same case, 47 B. T. A. 807 (1942).
148 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
within the decedent's gross estate. In that case, it
was not the mere power to vote the stock, giving the
decedent control of the corporation, which caused the
Tax Court to include the shares. The court held that
" 'on an inclusive view of the whole arrangement, this
withholding of the income until decedent's death,
coupled with the retention of the certificates under
the pledge and the reservation of the right to vote the
stock and to designate the company officers' " subjects the
stock to inclusion within the gross estate. Id., at 565.
The settlor in Holland retained a considerably greater
interest than Byrum retained, including an income
interest.32
As the Government concedes, the mere retention of
the right-to-vote shares does not constitute the type
of "enjoyment" in the property itself contemplated by
§ 2036 (a)(l). In addition to being against the weight
of precedent, the Government's argument that Byrum
retained "enjoyment" within the meaning of § 2036
(a)(l) is conceptually unsound. This argument implies,
as it must under the express language of § 2036
(a), that Byrum "retained for his life ... ( 1) the possession
or enjoyment" of the "property" transferred to the
trust or the "income" therefrom. The only property
he transferred was corporate stock. He did not transfer
"control" ( in the sense used by the Government) as the
trust never owned as much as 50% of the stock of any
corporation. Byrum never divested himself of control,
as he was able to vote a majority of the shares by virtue
of what he owned and the right to vote those placed in
~2 A more analogous case is Yeazel v. Coyle, 68---1 U. S. T. C.
12,524 (:'.'l'D Ill. 1968), in which a settlor-trustee, who transferred
GO% of the shares of a wholly owned corporation t-o a trust, was
found not to have retained the enjoyment of the property for her
lifetime.
UNITED STATES v. BYRUM 149
125 Opinion of the Court
the trust. Indeed, at the time of his death he still
owned a majority of the shares in the largest of the
corporations and probably would have exercised control of
the other two by virtue of being a large stockholder in
each.33 The statutory language plainly contemplates retention
of an attribute of the property transferred~such
as a right to income, use of the property itself, or a
power of appointment with respect either to income or
principal.34
Even if Byrum had transferred a majority of the stock,
but had retained voting control, he would not have retained
"substantial present economic benefit," 326 U. S.,
at 486. The Government points to the retention of two
"benefits." The first of these, the power to liquidate or
33 The Government, for the reasons discussed in n. 4, supra, makes
no distinction between retf'ntion of control by virtue of owning
50% or more of the voting shares and such retention by a combination
of stock owned and that with respect to which the right to vote
was retained.
34 The interpretation given § 2036 (a) by the Government and by
lvfo. . JUSTICE WHITE'S dissenting opinion would seriously disadvantage
set.tlors in a control posture. If the settlor remained a controlling
stockholder, any transfer of stock would be taxable to his
estate. See n. 4, supra. The typical closely hf'ld corporation i~
small, has a checkere<l earning record, and has no ma.rket for its
sharf's. Yet its shares often have substantial ass.et value. To
prevent the crippling liquidity problem that would result from the
imposition of estate faxes on surh sha.res, the controlling shareholder's
estate planning often includes an irrevocable trust. The
Government and the dissenting opinion wonld deny to controlliug
shareholders the privilege of using this gennally acceptable method
of estate planning without adverse tax consequencrs. Yet a settlor
whose wealth consisted of listed securities of corporations he did
not control would be permitted the tax advantage of the irrevoca.
ble trust even though his more marketnble assets present a far
less serious liquidity problem. The langunge of the statute does
not support such a result and we cannot believe Congress intended
it to have such discriminatory and far-reaching impact.
150 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
merge, is not a present benefit; rather, it is a speculative
and contingent benefit which may or may not be
realized. Nor is the probability of continued employment
and compensation the substantial "enjoyment
of ... [ the transferred] property" within the meaning
of the statute. The dominant stockholder in a closely
held corporation, if he is active and productive, is likely
to hold a senior position and to enjoy the advantage of
a significant voice in his own compensation. These
are inevitable facts of the free-enterprise system, but
the influence and capability of a controlling stockholder
to favor himself are not without constraints. Where
there arc minority stockholders, as in this case, directors
may be held accountable if their employment, compensation,
and retention of officers violate their duty to
act reasonably in the best interest of the corporation
and all of its stockholders.35 Moreover, this duty is
policed, albeit indirectly, by the Internal Revenue Service,
which disallows the deduction of unreasonable compensation
paid to a corporate executive as a business
expensc.36
\\' e conclude that Byrum's retention of voting
control was not the retention of the enjoyment of the
transferred property within the meaning of the statute.
3" Directors of Ohio corporations have been held liable for payment
of excessive compensation. Berkwitz v. Humphrey, 163 F.
Supp. 78 (ND Ohio 1958).
36 26 U. S. C. § 162 (a) (I) permits corporations to deduct "reasonable"
compensation as business expenses. If the Internal Revenue
Service determines that compensation exceeds the bounds of reason,
it will not permit a deduction. See, e. g., Botany Worsted Mills v.
United States, 278 U. S. 282 ( 1929).
Moreover, there is nothing in the record of this case with respect
to Byrum's compensation. There is no showing that his control of
these corporations gave him an "enjoyment" with respect to compensation
that he would not have had upon rendering similar services
without owning any stock.
UNITED STATES v. BYRUM 151
125 WHITE, .J., dissenting
For the reasons set forth above, ,ve hold that this case
was correctly decided by the Court of Appeals and accordingly
the judgment is
Affirmed.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN
and MR. JusTICE BLACKMUN join, dissenting.
I think the majority is wrong in all substantial respects.
I
The tax code commands the payment of an estate tax
on transfers effective in name and form during life if
the now deceased settlor retained during his life either
( 1) "the possession or enjoyment of" the property transferred
or (2) the right to designate the persons who
would enjoy the transferred property or the income
therefrom. 26 U. S. C. §§ 2036 (a)(l) and (2). Our
cases explicate this congressional directive to mean that
if one wishes to avoid a tax at death he must be selfabnegating
enough to totally surrender his property interest
during life.
"[A]n estate tax cannot be avoided by any trust
transfer except by a bona fide transfer in which the
settlor, absolutely, unequivocally, irrevocably, and
without possible reservations, parts with all of his
title and all of his possession and all of his enjoyment
of the transferred property." Commissioner v.
Estate of Church, 335 U. S. 632, 645 (1949) .
In this case the taxpayer's asserted alienation does not
measure up to this high standard. Byrum enjoyed the
continued privilege of voting the shares he "gave up" to
the trust. By means of these shares he enjoyed majority
control of two corporations. He used that control to
retain salaried positions in both corporations. To my
152 OCTOBER TERM, 1971
WHITE, J., dissenting 408U.S.
mind this is enjoyment of property put beyond taxation
only on the pretext that it is not enjoyed.
Byrum's lifelong enjoyment of the voting power of
the trust shares contravenes § 2036 (a) (2) as well as
§ 2036 (a) ( 1) because it afforded him control over which
trust beneficiaries--the life tenants or the remaindermen-
would receive the benefit of the income earned by
these shares. He secured this power by making the trust
to all intents and purposes exclusively dependent on
shares it could not sell in corporations he controlled.1
Thus, by instructing the directors he elected in the controlled
corporations that he thought dividends should or
should not be declared Byrum was able to open or close the
spigot through which income flowed to the trust's life tenants.
\Vhen Byrum closed the spigot by deferring dividends
of the controlled corporations, thereby perpetuating
his own "enjoyment" of these funds, he also in effect transferred
income from the life tenants to the remaindermen
whose share values were swollen by the retained income.
The extent to which such income transfers ca.n be effected
is suggested by the pay-out record of the corporations
here in question, as reflected in the trust's
accounts. Over the first five years of its existence on
shares later valued by the Internal Revenue Service
at $89,000, the trust received a total of only $339 in
dividends. In the sixth year, Byrum died. The corporations
raised their dividend rate from l(li a share
to $2 per share and paid $1,498 into the trust. See
"Income Cash Ledger," App. 25-26.
1 The trust held $89,000 worth of stock in Byrum-controllrd corporations
and only one other asset: three Series E United States
Savings Bonds worth a total of $300 at maturity. See "Yearly List
of [Trust] Assets," App. 27-29. Consrquently, I do not accord
much weight to the majority's point that Byrum could not prevent
the trustee from making payments "from other trust assets."
UNITED STATES v. BYRUM 153
125 WHITE, .J., dissenting
Byrum's control over the flow of trust income renders
his estate scheme repugnant to § 2036 (a) (2) as well
as § 2036 (a)(l).
To me it is thus clear that Byrum's shares were not
truly, totally, "absolutely, unequivocally" alienated during
his life. When it is apparent that, if tolerated,
Byrum's scheme will open a gaping hole in the estate
tax laws, on what basis does the majority nonetheless
conclude that Byrum should have his enjoyment, his
control, and his estate free from taxes?
II
I can find nothing in the majority's three arguments
purporting to deal with § 2036 (a) (1), that might justify
the conclusion that Byrum did not "enjoy" a benefit
from the shares his estate now asserts are immune from
taxation.
1. The majority says that in Reinecke v. Northern Trust
Co., 278 U. S. 339 ( 1929), "the Court held that reserved
powers of management of trust assets, similar to Byrum's
power over the three corporations, did not subject an
inter vivos trust to the federal estate tax." This reading
of Northern '!'rust is not warranted by the one paragraph
in that antique opinion on the point for which it
is now cited, see 278 U. S., at 346-347, nor by the circumstances
of that case. No one has ever suggested that
Adolphus Bartlett, the settlor in Northern Trust, used or
could have used the voting power of the shares he transferred
to a trust to control or, indeed, exercise any significant
influence in any company. A mere glance at
the nature of these securities transferred by Bartlett
(e. g., 1,000 shares of the Northern Trust Co., 784 shares
of the Commomvealth Edison Co., 300 shares of the Illinois
Central R. Co., 200 preferred shares of the Chicago & North
\Vestern R. Co., 300 common shares of the Chicago &
154 OCTOBER TERM, 1971
WHITE, J., dissenting 408 u. s.
North Western R. Co.) 2 shatters any theory that
might lead one to believe that the Court in Northern
Trust was concerned with anything like the transactions
in this case. On what basis, then, does the majority
say that Northern Trust involved a decision on facts
"similar to Byrum's power over the three corporations"?
And on what basis does it say that the Government's
position that Byrum's use of trust shares to retain control
renders those shares taxable is "against the weight
of precedent?"
2. The majority implies that trust securities are taxable
only if the testator retained title or the right to income
from the securities until death. But this ignores the
plain language of the statute which proscribes "enjoyment"
as well as "possession or ... the right to income."
3. The majority concludes with the assertion that Byrum
secured no "substantial present economic benefits"
from his retention of control.3 It is suggested that con-
2 Transcript of Record 3, in No. 90, 0. T. 1928, Reinecke v.
Northern Trust Co., 278 U. S. 339 (1929).
3 I am constrained to note that nowhere in the statute (which the
majority elsewhere in its argument would read with extreme literalness)
do the words "substantial" and "present"-or suggestions to
that effect-appear. The phrase "substantial present economic benefit"
does appear in Commissioner v. Estate of Holmes, 326 U.S. 480,
486 (1946), from which it is quoted by the majority. But there the
Court. held Holmes' estate liable to taxation on the corpus of an irreYocahlc
trust because the settlor (Holmes) had kept the power for
himself as trustee to distribute or retain trust income at his discretion.
The Court held that this power enabled the settlor to retard or accelerate
the beneficiaries' "enjoyment" at his whim. The donor had thus
kept "so strong a hold over the actual and immediate enjoyment of
what he [allegedly had put] beyond his own power" that he could
not be said to have "divested himself of that degree of control which
[a provision analogous to § 2036 (a) (2)] require,; in order to aYoid
the ta.x." 326 U. S., at 487. Holmes is thus strong precedent contrary
to the majority's § 2036 (a) (2) argument. See also Lober v.
United States, 346 U. S. 335 (1953); it certainly is not a case in
U~ITED STATES v. BYRUl'vI 155
125 WHITE, J., dissenting
trol is not important, that it either cannot be held by a
private shareholder or that it is of so little use and relevance
the taxpayer can hardly be said to have "enjoyed"
it. This view of corporate life is refuted by the case
law; 4 by the commentators; 5 and by everyday transactions
on the stock exchange where offers and trades
repeatedly demonstrate that the power to "control"
a corporation will fetch a substantial premiurn.6 Moreover,
the majority's view is belied by Byrum's own
conduct. He obviously valued control because he forbade
the bank that served as trustee to sell the trust
shares in these corporations without his----Byrum's-approval,
whatever their return, their prospects, their value,
or the trust's needs. Trust Agreement 1T 5.15, App. 14.
In sum, the majority's discourse on § 2036 (a) (1) is
an unconvincing rationalization for allowing Byrum
the tax-free "enjoyment" of the control privileges he
retained through the voting power of shares he supposedly
"absolutely" and "unequivocally" gave up.
which the Court intended or attempted to narrow the meaning of
§ 2036 (a) ( 1 ) .
• See, e. g., Honigman v. Green Giant Co., 208 F. Supp. 754, aff'd,
309 F. 2d 667 (CA8 1962), cert. denied, 372 U.S. 941 (1963); Rssex
Universal Corp. v. Yates, 305 F. 2d 572 (CA2 1962); Perlman v.
Feldmann, 219 F. 2d 173 (CA2 1955).
5 "[S]hareholders in a dose corporation arc usually vitally interested
in maintaining th('ir proportionatr control ... ." 1 F. O'Neal,
Close Corporations § 3.39, p. 43 ( 1971). At least since Perlman v.
Feldmann, supra, the academir dispute has not been over the existence
of control, or its value, but, rather, over who is to benefit from
the premium received upon its sale. Sec Leech, Transactions in Corporate
Control, 104 U. Pa. L. Rev. 725 (1956); Hill, The Sale of
Controlling Shares, 70 Harv. L. Rev. 986 (1957); Bayne, The Saleof-
Control Premium: The Disposition, 57 Calif. L. Rev. 615 (1969);
Bayne, The Noninvestment Value of Control Stock, 45 Ind. L. J.
317 (1970).
,; See, e. g., the transactions des('ribrd in Bayne, supra, n. 5, at 617.
156 OCTOBER TERM, 1971
WHITE, ,J., dissenting 408 U.S.
III
I find no greater substance m the greater length of
the majority's discussion of § 2036 (a) (2).
A
Approaching the § 2036 (a) (2) problem afresh, one
would think United States v. O'Malley, 383 U. S. 627
(1966), would control this case. In O'Malley the settlor
"had relinquished all of his rights" to stock, but he
appointed himself one of three trustees for each of the
five trusts he created, and he drafted the trust agreement
so that the trustees had the freedom to allocate
trust income to the life tenant or to accumulate it for
the remainderman "in their sole discretion." The District
Court held that the value of securities transferred
was includable in the settler's gross estate under § 811 ( c)
and ( d) of the Internal Revenue Code of 1939, as amended,
§ 811 (c) (1) (B) being the similarly worded predecessor of
§ 2036 (a), because the settlor had retained the power to
allocate income between the beneficiaries without being
constrained by a "definite ascertainable standard" according
to which the trust would be administered. O' Malley
v. United States, 220 F. Supp. 30, 33 (1963). The court
noted "plaintiff's contention that the required external
standard is imposed generally by the law of Illinois," but
found this point to be "without merit."
"The cases cited by plaintiff clearly set out fundamental
principles of trust law: that a trust requires
a named beneficiary; that the legal and equitable
estates be separated; and, that the trustees owe
a fiduciary duty to the beneficiaries. These statements
of the law are not particular to Illinois. Nor
do these requirements so circumscribe the trustee's
powers in an otherwise unrestricted trust so as to
hold such a trust governed by an external standard
125
UNITED STATES v. BYRUM 157
WHITE, J., dissenting
and thus excludable from the application of § 811 ( c)
and ( d) ." 220 F. Supp., at 33-34.
It was another aspect of that case that brought
the matter to the Court of Appeals, 340 F. 2d 930
( CA 7 1964), and then here. We were asked to decide
whether the lower court's holding should be extended
and the accumulated income as well as the principal
of the trust included in the settlor's taxable estate
because the settlor had retained excessive po,ver to designate
the income beneficiaries of the shares transferred.
We held that, though capable of exercise only in conjunction
with one other trustee, the power to allocate
income without greater constraint than that imposed
"is a significant power . . . of sufficient substance to
be deemed the po,ver to 'designate' within the meaning
of [the predecessor of§ 2036 (a)t2)] ." 383 U.S., at 631.
O'Malley makes the majority's position in this case
untenable. O'Malley establishes that a settlor serving
as a trustee is barred from retaining the power to allocate
trust income between a life tenant and a remainderman
if he is not constrained by more than general fiduciary
requirements. See also Comm'issioner v. Estate
of Holmes, 326 U. S. 480 (1946),7 and Lober v. United
States, 346 U. S. 335 ( 1953). Now the majority would
have us accept the incompatible position that a settlor
seeking tax exemption may keep the power of income
allocation by rendering the trust dependent on an income
flow he controls because the general fiduciary obligations
of a director are sufficient to eliminate the power
to designate within the meaning of § 2036 (a) (2).8
7 See n. 3, supra.
"This incompatibility was readily perceived by the Internal Revenue
Service. Shortly after O'Malley was handed down, it promulgated
Rev. Rul. 67- 54 (1967) which concluded:
"Where a decedent transfers nonvoting stock in trust and holds for
the remainder of his life voting stock giving him control over the divi158
OCTOBER TERJ\I, 1971
WHITE, J., dissenting 408 U.S.
B
The majority would prop up its untenable position
by suggesting that a controlling shareholder is constrained
in his distribution or retention of dividends by
fear of derivative suits, accumulated earnings taxes, and
"various economic considerations . . . ignored at the
director's peril." I do not deny the existence of such
constraints, but their restraining effect on an otherwise
tempting gross abuse of the corporate dividend po,ver
hardly guts the great power of a controlling director to
accelerate or retard, enlarge or diminish, most dividends.
The penalty taxes only take effect when accumulations
exceed $100,000, 26 U. S. C. § 535 ( c); Byrum was free
to accumulate up to that ceiling. The threat of a derivative
suit is hardly a greater deterrent to accumulation.
As Cary puts it:
"The cases in which courts have refused to require
declaration of dividends or larger dividends despite
the existence of current earnings or a substantial
surplus or both arc numerous; plaintiffs have won
only a small minority of the cases. The labels are
'business judgment'; 'business purpose'; 'non-inter-
<lend policy of the corporation, he has retained, for a period which
did not in fact end before his death, the right to determine the income
from the nonvoting stock. If he also retains control over the
disposition of the nonvoting stock, whether as trustee, by restriction
upon the trustee, or alone or in conjunction with another, he has
in fart made a transfer whereby he has retained for his life the
right to designate the pnsuns who shall possess or enjoy the transferred
property or the inrome therefrom. Since under section
20.2036-1 (b) (3) of the Estate Tax Regulations it is immaterial in
what capacity a power was exercisable by the decedent, it is sufficient
that the power was exercisable in the capacity of controlling
stockholder. Under the facts of this case, therefore, the deredmt
has made a transfer with a reserved power within the meaning of
section 2036 (a) of the Code."
125
UNITED STATES v. BYRU:\·I 159
WHITE, J., dissenting
ference in internal affairs.' The courts have accepted
the general defense of discretion, supplemented
by one or more of a number of grounds put
forward as reasons for not paying dividends or
larger dividends .... " ·w. Cary, Cases and Materials
on Corporations 1587 ( 4th ed. 1969).
And cf. Comm-issioner v. Sunnen, 333 U. S. 591, 609
( 1948).
The ease with which excess taxes, derivative suits, and
economic vicissitudes alike may be circumvented or
hurdled if a controlling shareholder chooses to so arrange
his affairs is suggested by the pay-out record of Byrum's
corporations noted above.
C
The majority proposes one other method of distinguishing
O'Malley. Section 2036 (a)(2), it is said, speaks of
the right to designate income beneficiaries. O'MaUey involved
the effort of a settlor to maintain a legal right to
allocate income. In the instant case only the power to
allocate income is at stake. The Government's argument
is thus said to depart from "the specific statutory language"
0 and to stretch the statute beyond endurance by
allocating tax according to the realities of the situation
rather than by the more rigid yardstick of formal control.'0
This argument conjures up an image of congressional
care in the articulation of § 2036 (a)(2) that is entirely
at odds with the circumstances of its passage. The 1931
legislation, which first enacted what is now§ 2036 (a)(2)
in language not materially amended since that date,
9 This call for literalness strongly contrasts with the majority's
§ 2036 (a) (2) analysis, sec n. 3, supra.
10 The majority's argument ignores the fact that within a wide
area of discretion Byrum had the "right" to allocate corporate income
to purposes other than payment of dividends, and thus the
"right" to shut off income to the trust's life tenants.
160 OCTOBER TERM, 1971
WHITE, J., dissenting 408 U.S.
passed both Houses of Congress in one day- the last day
of the session. There was no printed committee report.
Substantial references to the bill appear in only two brief
sections of the Congressional Record.11 Under the circumstances
I see 110 warrant for reading the words in a
niggardly way.
Moreover, it appears from contemporary evidence that
if the use of the word "right" was intended to have
any special meaning it was to expand rather than to
contract the reach of the restraint effected by the provision
in which it appeared. The House Report on
11 The intent of Congressmen and the care with which they measured
the language which the majority thinks was carefully limited
is suggested by the following:
"Mr. HA l,VLEY. Mr. Speaker, I ask unanimous consent for the
present consideration of a joint resolution (H. J. Res. 529) relating
to the revenue, reported from the Committee on Ways and Means.
[The resolution, § 2036 (a) (1) and (2) substantially as they appear
today, was read.]
"The SPEAKER. Is there objection?
"Mr. SCHAFER of Wisconsin. Reserving the right to object, I
shall object unless the gentleman explains just what the bill is.
"Mr. HAWLEY. Mr. Speaker and gentlemen, the Supreme Court
yesterday handed down a derision to the effect that if a person
creates a trust of his property and provides that, during his lifetime,
he shall enjoy the benefits of it, and when it is distributed after his
death it goes to his heirs- the Supreme Court held that it goes to
his heirs free of any estate tax.
"Mr. SCHAFER of Wisconsin. This is a bill to tax the rich man.
I shall not object.
"Mr. COLLINS. I would like to have a little more explanation.
"Mr. SABATH. Reserving the right to object, all the resolution
purports to do is to place a tax on these trusts that have been in
vognC' for the last few years for i he purpose of evading the inlH'ritan
ce tax on the part of some of the8c rich estates ?
"Mr. HAWLEY. It provides that hereafter no such method shall
be used to evade the tax.
"Mr. SAJ3..\.TH. That is good legislation." 74 Cong. Ree. 7198.
UNITED STATES v. BYRU~1 161
125 \VHITE, J., di;:senting
the Revenue Act of 1932 notes in relation to amendment
of the predecessor of §2036 (a)(l) that:
"The insertion of the words 'the right to the income'
in place of the words 'the income' is de1,igned
to reach a case where decedent had the right to
the income, though he did not actually receive it.
This is also a clarifying change." H. R. Rep. No.
708, 72d Cong., 1st Sess., 47.
And see S. Rep. Xo. 665, 72d Cong., 1st f;ess., 50, to the
same effect.
I repeat the injunction of Mr. Justice Frankfurter, 25
years ago: "This is tax language and should be read in
its tax sense." United States v. Ogilvie Hardware Co.,
330 "C. S. 709, 721 (1947) (dissenting opinion).
Lest this by itself not be considered enough to refute
the majority's approach, I must add that it is quite
repugnant to the words and sense of our opinion in
O'Malley to read it as though it pivoted on an interpretation
of "right" rather than power. The opinion
could hardly have been more explicitly coneerncd with
the realities of a settlor's retained power rather than the
theoretical legal form of the trust. Th us we said:
"Here Fabrice [ the settlor] was empowered . . . .
This is a si~nificant power ... of sufficient substance
to be deemed the power to 'designate' within
the meaning of [ the predecessor of § 2036 (a)
(2)] .... " 383 U. S., at 631 (emphasis supplied).
And we said:
"With the creation of the trusts. he relinquished all
of his rights to income except the pou.•er to distribute
that income to the income beneficiaries or
io ac-cumulate it anrl hold it for the remaindrrmcn
of the trusts." 383 e. S., at 632 (emphasis
supplied).
162 OCTOBER TERM, 1971
WHITE, .T., dissenting 408 U.S.
And we spoke of:
"This power he exercised by accumulating and
adding income to principal and this same power
he held until the moment of his death. " 383
U. S., at 634 (emphasis supplied).
Other passages could be quoted.
IV
Apparently sensing that considerations of logic, policy,
and recent case law point to the inclusion of Byrum's
trust in his estate, the majority would blunt these considerations
by invoking the principle that courts should
refrain from decisions detrimental to litigants who have
taken a position in legitimate reliance on possibly outdated,
but once established, case law. This principle
is said to bring great weight to bear in Byrum's favor.
I need not quarrel ·with the principle. I think, however,
that its application in this context is inappropriate.
The majority recites these facts: This Court has
never held that retention of power to manage trust
assets compels inclusion of a trust in a settlor's estate. ln
iact, Reinecke v. Northern Trust Co., 278 U.S. 339 ( 1929),
specifically held a trust arrangement immuue from taxation
though the settlor retained power to decide how
the trust assets were to be invested. Though Northern
Trust was decided before the passage of § 2036 (a) (2), it
has been followed by "several" more recent lmver court
decisions. Though most of the lower court decisions provide
only the most oblique reference to circumstances like
those of this case, a 1962 unappealed Tax Court decision,
Estate of King v. Commissioner, 37 T. C. 973,
is squarely in point.
On the basis of these two authorities, a 1929 Supreme
Court decision alld an unrevicwed 1962 Tax Court decision,
the majority coHrludes that there exists a "generUNITED
STATES v. BYRU;\'1 163
125 WHITE, .T., dissenting
ally accepted" rule that Byrum might do what he had
done here. It is said that the hypothesized rule "may"
have been relied upon by "hundreds" of others; if so,
its modification "could" have a serious impact, especially
upon settlors who "happen" to have been controlling
shareholders in closely held corporations and who
"happen" to have transferred shares in those corporations
to trusts while forbidding the trustee to sell the shares
without approval and while retaining voting rights in
those shares. Therefore the rule ought not to be "modified"
by this Court.
A
The argument, apparently, is that what "appear[s] to
be established" should become established because it has
appeared. Judges can and will properly differ on the
questions of what deference to accord reliance on a
well-established rule, but I doubt that we are precluded
from reaching what would otherwise be a right result
simply because in the minds of some litigants a contrary
rule had heretofore "appear [ ed] to be established."
If the majority's approach ,vere widely accepted, artful
claims of past understanding would consistently suffice
to frustrate judicial as well as administrative efforts at
present rationalization of the law and every precedenteven
at the tax court level-might lay claim to such
authority that the Government and the tax bar could
afford to leave no case unappealed.
B
Of course, the reliance argument is doubly infirm if
the majority's rule cannot be said to have "appear [ ed 1 to
be established." Did Byrum have a sound basis for
calculating that there was no substantial risk of taxation
when he persisted in retaining the powers and privileges
described above?
164 OCTOBER TERM, 1971
WHITE, J., dissenting 408 U.S.
1. Again the majority turns to Reinecke v. Northern
Trust Co., but it is no more credible to use Northern Trust
as a foundation for Byrum's § 2036 (a)(2) position than
it was to use it as a basis for the Court's § 2036 (a)(l)
argument. Northern Trust was decided on January 2,
1929, two years and three months before Congress passed
the first version of § 2036 (a)( 2) . Section 402 ( c) of
the Act of 1921, the provision under which Northern
Trust was decided, proscribed only transfers in which
the settlor attempted to retain "possession or enjoyment"
until his death. It is thus not surprising that Northern
Trust focused on the question of the settlor's "power
to recall the property and of control over it for his own
benefit," 278 U. S., at 347 (emphasis added), and made
no mention of possible tax liability because of a retained
power to designate which beneficiaries would enjoy the
trust income. A holding in this context cannot be precedent
of "weight" for a decision as to the efficacy of a
trust agreement made-as this trust was-27 years after
the predecessor of § 2036 (a) (2) was enacted.
I note also that Northern Trust rests on a conceptual
framework now rejected in modern law. The case is
the elder sibling of May v. Heiner, 281 U. S. 238,
a three-page 1930 decision which quotes Northern Trust,
at length. May in effect held that under § 402 ( c) a
settlor may be considered to have fully alienated property
from himself even if he retains the very substantial string
of the right to income from the property so long as he
survives. The logic of May v. Heiner is the logic of
Northern Trust. As one authority has written:
"When retention of a life estate was not taxable
under the rule of May v. Heiner, it followed that
mere retention of a right to designate the persons
to receive the income during the life of the settlor
was not taxable .... " 1 J. Beveridge, Law of
Federal Estate Taxation § 8.06, p. 324 (1956).
UNITED STATES v. BYRU:M 165
125 WHITE, J., dissenting
That logic no longer survives. When three Supreme
Court per curiarns affirmed May on March 2, 1931, and
thus indicated that this view would not be confined to
its facts, the Treasury Department, on the next morning,
wrote Congress imploring it to promptly and finally
reject the Court's lenient view of the estate tax system.
Congress responded by enacting the predecessor
of § 2036 (a) (2) that very day. The President signed
the law that evening. Thus the holding of May and the
underlying approach of Northern Trust have no present
life. I note further that though Congress has refused
to permit pre-1931 trusts to be liable to a rule other
than that of May, in 1949 this Court itself came to the
conclusion that May was wrong, and effected "a complete
rejection" of its reasoning. Commissioner v. Estate of
Church, 335 U. S. 632,12 645.
I seriously doubt that one could have confidently relied
on Reinecke v. Northern Trust Co. when Byrum drafted
his trust agreement in 1958. This Court is certainly not
bound by its logic, in 1972. I do not mean any disrespect,
but as Mr. Justice Cardozo said about another case,
Northern Trust is a decision "as mouldy as the grave from
which counsel ... brought it forth to face the light of a
new age." B. Cardozo, The Growth of the Law, in
Selected Writings 244 (M. Hall ed. 1947).
2. The majority argues that there were several lower
court cases decided after the enactment of § 2036 (a) (2)
12 In considering this and its compa.nion case, Estate of Spiegel v.
Commissioner, 335 U. S. 701 (1949), the Court in effect invited
argument on whether Northern Trust itself should be overruled.
Journal of the Supreme Court, 0. T. 1947, pp. 296-297. Though the
Court held for the Government without having to reach this issue, I
not<> that in the 23 years since Church and 8piegel no opinion of this
Court has once cited, much less relied upon, North0 rn Trust.
Mr. Justice Reed, dissenting in Church and concurring in Spiegel,
announced at the time that he thought these cases overruled Northern
Trust.
166 OCTOBER TERM, 1971
WHITE, J., dissenting 408 U.S.
upon which Byrum was entitled to rely, and it is quite
true that cases exist holding that a settlor's retention
of the power to invest the assets of a trust does not by
itself render the trust taxable under § 2036 (a)(2). But
the majority's emphasis on these cases as a proper foundation
for Byrum's reliance is doubly wrong. First,
it could not have evaded Byrum's attention and should
not escape the majority that all cited prior cases--save
King (the tax court case written four years after Byrum
structured his trust)-involved retention of power to
invest by the settlor's appointment of himself as a
trustee; that is, they posed instances in which the settlor's
retained power was constrained by a fiduciary
obligation to treat the life tenant beneficiaries and remainderman
beneficiaries exactly as specified in the trust
instrument. Thus, the "freedom" to reallocate income
between life tenants and remaindermen by, e. g., investing
in wasting assets with a high present return and
no long-term value, was limited by a judicially enforceable
strict standard capable of invocation by the trust
beneficiaries by reference to the terms of the trust agreement.
See Jennings v. Smith, 161 F. 2d 74 (CA2 1947),
the leading case. Byrum must have realized that the
situation he was structuring was quite different. By
according himself power of control over the trust income
by an indirect means, he kept himself quite free of a
fiduciary obligation measured by an ascertainable standard
in the trust agreement. Putting aside the question
of whether the situation described should be distinguished
from Byrum's scheme, surely it must be acknowledged
that there was an apparent risk that these situations
could be distinguished by reviewing courts.
Second, the majority's analysis of the case law skips
over the uncertainty at the time Byrum was drafting
his trust agreement about even the general rule that
a settlor could retain control over a trust's investments
UNITED STATES v. BYRUM 16i
125 WHITE, J., dissenting
if he bound himself as a trustee to an ascertainable
method of income distribution. While Byrum and his
lawyer were pondering the terms of the trust agreement
now in litigation, the Court of Appeals for the First Circuit
\Vas reconsidering whether a settlor could retain
power over his trust's investments even when he bound
himself to a fiduciary's strictest standards of disinterested
obligation to his trust's beneficiaries. Early in 1958
the United States District Court for the District of Massachusetts
had ruled that a settlor could not maintain
powers of management of a trust even as a trustee without
assuming estate tax liability. State Street Trust
Co. v. United States, 160 F. Supp. 877. The estate's
executor appealed this decision and argued it before
the First Circuit panel on October 7, 1958. Byrum's
trust agreement was made amidst this litigation, on
December 8. On January 23, 1959, the First Circuit
affirmed the District Court. 263 F. 2d 635.13
The point is not simply that Byrum was on notice
that he risked taxability by retaining the powers he
retained when he created his trust~though that is true.
It is also that within a month of the trust's creation
it should have been crystal clear that Byrum ran a substantial
risk of taxation by continued retention of control
over the trust's stock. Any retained right can be
resigned. That Byrum persisted in holding these rights
can only be viewed as an indication of the value he
placed upon their enjoyment, and of the tax risk he was
willing to assume in order to retain control.
The perception that a settlor ran substantial risk
of estate tax if he insisted on retaining power over the
13 The First Circuit again shifted its position on this question in
Old Colony T.rust Co. v. United States, 423 F. 2d 601 (1970), but
this change is obviously irrelevant to the majority's argument as to
the legitimacy of Byrum's reliance from 1958 to 1964.
168 OCTOBER TERM, 1971
WHITE, J., dissenting 408 U.S.
flow of trust income is hardly some subtle divination of
a latter-day observer of the 1958-1959 tax landscape.
Contemporary observers saw the same thing. A summary
of the field in the 1959 Tax Law Review concluded:
"Until the law is made more definite, a grantor
who retains any management powers is proceeding at
his own risk. . . . [T]here is no certainty .... " Gray
& Covey, State Street---A Case Study of Sections 2036
(a) (2) and 2038, 15 Tax L. Rev. 75, 102. The
relevant subcommittee of the American Bar Association
Committee on Estate and Tax Planning hardly
thought reliance appropriate. It wrote in 1960 that:
"The tax-wise draftsman must now undertake to
review every living trust in his office intended to
be excluded from the settlor's estate in which the
settlor acts as a trustee with authority to:
"l. Exercise broad and virtually unlimited investment
powers .... " Tax-Wise Drafting of Fiduciary
Powers, 4 Tax Counsellor's Quarterly 333, 336.
More could be said, but I think it is clear that the
majority should find no solace in its reliance argument.
V
The majority, I repeat, has erred in every substantial
respect. It remains only to note that if it is wrong
in any substantial respect-i. e., either in its § 2036
(a)(I) or (a)(2) arguments-Byrum's trust is by law
liable to taxation.
HEALY v. JAMES 169
Syllabus
HEALY ET AL. V. JAMES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 71-452. Argued March 28, 1972-Decided June 26, 1972
Petitioners, seeking to form a local chapter of Students for a Democratic
Society (SDS) at a state-supported college, were denied
recognition as a campus organization. Recognition would have
entitled petitioners to use campus facilities for meetings and to use
of the campus bulletin board and school newspaper. The college
president denied recognition because he was not satisfied that petitioners'
group was independent of the National SDS, which he concluded
has a philosophy of disruption and violence in conflict with
the college's declaration of student rights. Petitioners thereupon
brought this action for declaratory and injunctive relief. The
District Court first ordered a further administrative hearing, after
which the president reaffirmed his prior decision. Approving the
president's judgment, the District Court held that petitioners had
failed to show that they could function free from the National SDS
and that the college's refusal to approve the group, which the court
found "likely to cause violent acts of disruption," did not violate
petitioners' associational rights. The Court of Appeals, purporting
not to reach the First Amendment issues, affirmed on the ground
that petitioners had failed to avail themselves of the due process
accorded to them and to meet their burden of complying with the
prevailing standards for recognition. Held:
1. The courts erred in ( 1) discounting the cognizable First
Amendment associational interest that petitioners had in furthering
their personal beliefs and (2) assuming that the burden was on
petitioners to show entitlement to recognition by the college rather
than on the college to justify its nonrecognition of the group,
once petitioners had made application conformably to college requirements.
Pp. 180--185.
2. Insofar as the denial of recognition to petitioners' group was
based on an assumed relationship with the National SDS, or was a
result of disagreement with the group's philosophy, or was a consequence
of a fear of disruption, for which there was no support in
the record, the college's decision violated the petitioners' First
Amendment rights. A proper basis for nonrecognition might have
170 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
been afforded, however, by a showing that the group refused to
comply with a rule requiring them to abide by reasonable campus
regulations. Since the record is not clear whether the college has
such a rule and, if so, whether petitioners intend to observe it,
these issues remain to be resolved. Pp. 185-194.
445 F. 2d 1122, reversed and remanded.
PowELL, J., delivered the opinion of the Court, in which BURGER,
C. J., and DouGLAS, BRENNAN, STEWART, WHITE, MARSHALL, and
BLACKMUN, .J.J., joined. BURGER, C . J., filed a. concurring opinion,
post, p. 195. DouGLAS, J ., filed a separate opinion, post, p. 196.
REHNQUIST, .J ., filed a statement concurring in the result, post,
p. 201.
Melvin L. Wulf argued the cause for petitioners.
With him on the brief were Eugene Z. DuBose, Jr., Alvin
Pudlin, and Sanford Jay Rosen.
F. Michael Ahern, Assistant Attorney General of Connecticut,
argued the cause for respondents. With him
on the brief was Robert K. Killian, Attorney General.
Briefs of arnici curiae urging affirmance were filed by
Evelle J. Younger, Attorney General of California, and
Donald B. Day, Deputy Attorney General, for the Board
of Trustees of California State Colleges; by Frank G.
Carrington, Jr., and Alan S. Ganz for Americans for Effective
Law Enforcement, Inc.; and by Morris I. Leibman
and Philip B. Kurland for the American Association of
Presidents of Independe11t Colleges and Universities.
MR. JusTICE PowELL delivered the opinion of the
Court.
This case, arising out of a denial by a state college
of official recognition to a group of students who desired
to form a local chapter of Students for a Democratic
Society (SDS) , presents this Court with questions requiring
the application of well-established First Amendment
principles. While the factual background of this
HEALY v. JAMES 171
169 Opinion of the Court
particular case raises these constitutional issues in a
manner not heretofore passed on by the Court, and only
infrequently presented to lower federal courts, our decision
today is governed by existing precedent.
As the case involves delicate issues concerning the
academic community, we approach our task ,vith special
caution, recognizing the mutual interest of students, faculty
members, and administrators in an environment free
from disruptive interference with the educational process.
We also are mindful of the equally significant interest
in the widest latitude for free expression and debate
consonant with the maintenance of order. Where these
interests appear to compete the First Amendment, made
binding on the States by the Fourteenth Amendment,
strikes the required balance.
I
We mention briefly at the outset the setting in 1969-
1970. A climate of unrest prevailed on many co1lege
campuses in this country. There had been widespread
civil disobedience on some campuses, accompanied by
the seizure of buildings, vandalism, and arson. Some
colleges had been shut down altogether, while at others
files were looted and manuscripts destroyed. SDS chapters
on some of those campuses had been a catalytic
force during this period.1 Although the causes of campus
disruption were many and complex, one of the prime
consequences of such activities was the denial of the
lawful exercise of First Amendment rights to the majority
of students by the few. Indeed, many of the most
cherished characteristics long associated with institutions
of higher learning appeared to be endangered. For-
1 See Report of the PresidPnt's Commission on Campus Unrest
(1970) ; Report of the Amnican Bar Association Commission on
Campus Government and Student Dissent ( 1970).
172 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
tunately, with the passage of time, a calmer atmosphere
and greater maturity now pervade our campuses. Yet,
it was in this climate of earlier unrest that this case
arose.
Petitioners are students attending Central Connecticut
State College (CCSC), a state-supported institution
of higher learning. In September 1969 they undertook
to organize what they then referred to as a "local chapter"
of SDS. Pursuant to procedures established by the
College, petitioners filed a request for official recognition
as a campus organir,ation with the Student Affairs Committee,
a committee composed of four students, three
faculty members, and the Dean of Student Affairs. The
request specified three purposes for the proposed organization's
existence. It would provide "a forum of discussion
and self-education for students developing an
analysis of American society"; it would serve as "an
agency for integrating thought with action so as to bring
about constructive changes"; and it would endeavor to
provide "a coordinating body for relating the problems of
leftist students" with other interested groups on campus
and in the community.2 The Committee, while
satisfied that the statement of purposes was clear and
unobjectionable on its face, exhibited concern over the
relationship between the proposed local group and the
National SDS organization. In response to inquiries,
representatives of the proposed organization stated that
they would not affiliate with any national organization
and that their group would remain "completely
independent."
In response to other questions asked by Committee
members concerning SDS' reputation for campus disruption,
the applicants made the following statements,
2 Thr statement of purposes is set out as an Appendix to the
Second Circuit's opinion and appears following the dissent thereto.
445 F. 2d 1122, 1135-1139 (1971).
HEALY v. JAMES 173
169 Opinion of the Court
which proved significant during the later stages of these
proceedings:
"Q. How would you respond to issues of violence
as other S. D. S. chapters have?
"A. Our action would have to be dependent upon
each issue.
"Q. Would you use any means possible?
"A. No I can't say that; ,vould not know until
we know what the issues are.
"Q. Could you envision the S. D. S. interrupting
a class?
"A. Impossible for me to say."
With this information before it, the Committee requested
an additional filing by the applicants, including
a formal statement regarding affiliations. The
amended application filed in response stated flatly that
"CCSC Students for a Democratic Society are not under
the dictates of any National organization." 3 At a second
hearing before the Student Affairs Committee, the
question of relationship with the National organization
was raised again. One of the organizers explained that
the National SDS was divided into sevPral "factional
groups," that the national-local relationship was a loose
one, and that the local organization accepted only "certain
ideas" but not all of the National organization's
aims and philosophies.
By a vote of six to two the Committee ultimately
approved the application and recommended to the Pres-
"445 .F. 2d, at 1133. During the Committee's consideration of
petitioners' application, one of the group's rcprescnt.ativc>s was asked
why, if it indeed desired to remain independent, it chose to use a
nationally known name. The witness' response was that "the name
brings to mind the type of organization we wish to bring across,
that is, a left-wing organization which will allow students interested
in such to express themselves."
174 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
ident of the College, Dr. James, that the organization
be accorded official recognition. In approving the application,
the majority indicated that its decision was
premised on the belief that varying viewpoints should
be represented on campus and that since the Young
Americans for Freedom, the Young Democrats, the
Young Republicans, and the Liberal Party all enjoyed
recognized status, a group should be available with which
"left wing" students might identify. The majority also
noted and relied on the organization's claim of independence.
Finally, it admonished the organization that
immediate suspension would be considered if the group';:;
activities proved incompatible with the school's policies
against interference with the privacy of other students
or destruction of property. The two dissenting members
based their reservation primarily on the lack of
clarity regarding the organization's independence.
Several days later, the President rejected the Committee's
recommendation, and issued a statement indicating
that petitioners' organization was not to be accorded
the benefits of official campus recognition. His
accompanying remarks, which are set out in full in the
margin,4 indicate several reasons for his action. He
• The President stated:
"Though I have full appreciation for the action of the Student Affairs
Committee and the reasons stated in their minutes for the
majority vote recommending approval of a local chapter of Students
for a Demorratic Society, it is my judgment that the statement of
purpose to form a local chapter of Student.;; for a Democratic tlociety
earries full and unmistakable adherence to at least some of the
major tenets of the national organization, loose and divided though
that org:rnization may be. The published aims and philosophy of
the Students for a Democratic Society, which include disruption
and violence, are contrary to the approved policy (by faculty,
students, and administration) of Central Connecticut State College
which states:
"'Students do not have the right to invade the priva<'y of others,
to damage the property of others, to disrupt the regular and esHEALY
v. JAMES 175
169 Opinion of the Court
found that the organization's philosophy was antithetical
to the school's policies,5 and that the group's independence
was doubtful. He concluded that approval should
sential operation of the college, or to interfere with the rights of
others.'
"The further statement on the request for recognition that 'CCSC
Students for a Democratic Society are not under the dictates of any
National organization' in no way clarifies why if a group intends to
follow the established policy of the college, they wish to become a
local chapter of an organization which openly repudiates such a
policy.
"Freedom of speech, academic freedom on the campus, the freedom
of establishing an open forum for the exchange of ideas, the freedoms
outlined in the Statement on Rights, Freedoms, and Responsibilities
of Students that 'college students and student organizations shall have
the right to examine and discuss all questions of interest to them, to
express opinion publicly and privately, and to support causes by
orderly means. They may organize public demonstrations and protest
gatherings and utilize the right of petition'-these are all precious
freedoms that we cherish and are freedoms on which we stand. To
approve any organization or individual who joins with an organization
which openly repudiates those principles is contrary to those
freedoms and to the approved 'Statement on the Rights, Freedoms,
and Responsibilities of Students' at Central." App. 15-16.
5 In 1969, CCSC adopted, as have many other colleges and universities,
a Statement on Rights, Freedoms and Responsibilities of
Students. This statement, commonly referred to as the "Student
Bill of Rights," is printed as an Appendix to the Second Circuit's
majority opinion in this case, 445 F. 2d, at 1135-1139, seen. 2, supra.
Part V of that statement establishes the standards for approval of
campus organizations and imposes several basic limitations on their
campus activities:
"A. Care shall be taken in the establishment and organization
of campus groups so that the basic rights, freedoms and responsibilities
of students will be preserved.
"B. Student organizations shall submit a clear statement of purpose,
criteria for membership, rules of procedures and a list of
officers as a condition of institutional recognition. They shall not be
required to submjt a membership list as a condition of institutional
recognition.
"C. Membership in campus organizations shall be limited to
176 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
not be granted to any group that "openly repudiates"
the College's dedication to academic freedom.
Denial of official recognition posed serious problems
for the organization's existence and growth. Its members
were deprived of the opportunity to place announcements
regarding meetings, rallies, or other activities in
the student newspaper; they were precluded from using
various campus bulletin boards; and-most importantly-
nonrecognition barred them from using campus
facilities for holding meetings. This latter disability
was brought home to petitioners shortly after the President's
announcement. Petitioners circulated a notice
calling a meeting to discuss what further action should
be taken in light of the group's official rejection. The
members met at the coffee shop in the Student Center
("Devils' Den") but were disbanded on the President's
order since nonrecognized groups were not entitled to
use sue~ facilities.°
matriculated students (day or evening) at the college. Membership
shall not be restricted by race, religion or nationality. The members
shall have sole power to determine orga.nization policy consistent with
the regulations of the college.
"D. Each organization is free to choose its own adviser. Advisers
to organizations shall advise but not control the organiza.tions and
their policies.
"E. College students and student organizations shall have the right
to examine and discuss all questions of interest to them, to express
opinion puhliely and privately, and to support causes by orderly
means. They may organizr p11hlir drmonstrations and protest
gatherings and utilize the right of petition. Students do not have
the right to deprive others of the opportunity to speak or be heard,
to invade the privacy of others, to damage the property of others,
to disrupt Hie regular and essential operation of the collf'ge, or to
interfere with the rights of others."
6 During the meeting pctitionrrs were approached by two of the
College's deans, who served petitioners with a ml'mornndum from
the President stating:
":Notico has been received by this office of a meeting of the
HEALY v. JAMES 177
169 Opinion of the Court
Their efforts to gain recognition having proved ultimately
unsuccessful, and having been made to feel the
burden of nonrecognition, petitioners resorted to the
courts. They filed a suit in the United States District
Court for the District of Connecticut, seeking declaratory
and injunctive relief against the President of the College,
other administrators, and the State Board of Trustees.
Petitioners' primary complaint centered on the denial of
First Amendment rights of expression and association
arising from denial of campus recognition. The cause was
submitted initially on stipulated facts, and, after a short
hearing, the judge ruled that petitioners had been denied
procedural due process because the President had based
his decision on conclusions regarding the applicant's
affiliation which were outside the record before him.
The court concluded that if the President wished to act
on the basis of material outside the application he must
at least provide petitioners a hearing and opportunity
to introduce evidence as to their affiliations. 311 F.
Supp. 1275, 1279, 1281. While retaining jurisdiction over
the case, the District Court ordered respondents to hold
a hearing in order to clarify the several ambiguities surrounding
the President's decision. One of the matters to
be explored was whether the local organization, true to its
repeated affirmations, was in fact independent of the National
SDS. Id., at 1282. And if the hearing demonstrated
that the two were not separable, the respondents
were instructed that they might then revie,v the "aims
and philosophy" of the National organiiation. Ibid.
'C. C. S. C.-S. D. S. on Thursday-N"ovember 6 at 7:00 p. m. at
the Devils' Den.'
"Surh meeting may not take place in the Devils' DC'n of the Student
Center nor in or on any other property of the college since the
C. C. S. C.-S. D. S. is not a duly recognized ('allege organization.
"You are hereby notified by this action to cease and desist from
meeting on college property."
178 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
Pursuant to the court's order, the President designated
Dean Judd, the Dean of Student Affairs, to serve
as hearing officer and a hearing was scheduled. The
hearing, which spanned two dates and lasted approximately
two hours, added little in terms of objective
substantive evidence to the record in this case. Petitioners
introduced a statement offering to change the
organization's name from "CCSC local chapter of SDS"
to "Students for a Democratic Society of Central Connecticut
State College." They further reaffirmed that
they would "have no connection whatsoever to the
structure of an existing national organization." 7 Petitioners
also introduced the testimony of their faculty
adviser to the effect that some local SDS organizations
elsewhere were unaffiliated with any national organization.
The hearing officer, in addition to introducing
the minutes from the two pertinent Student Affairs Committee
meetings, also introduced, sua sponte, portions
of a transcript of hearings before the United States
House of Representatives Internal Security Committee
investigating the activities of SDS. Excerpts were offered
both to prove that violent and disruptive activities
had been attributed to SDS elsewhere and to demonstrate
that there existed a national organization that
recognized and cooperated with regional and local college
campus affiliates. Petitioners did not challenge the asserted
existence of a National SDS, nor did they question
that it did have a system of affiliations of some
7 319 F. Supp. 113, 114 (1970). The hearing offirer, over prtitioners'
objection, ruled that the statement was inadmissible, apparently
on the ground that it would constitute an nmendment
to the original application and would be beyond the pc-rmissible
scope of t.hc hearing. Whatever the merits of this ruling, thf'
statement was in the record reviewed by the Pre::ident and was
relied on in the subsequent District Court opinion without reference
to its prior exdusion. /bid.
HEALY v. JAMES 179
169 Opinion of the Court
sort. Their contention was simply that their organization
would not associate with that network. Throughout
the hearing the parties were acting at cross purposes.
What seemed relevant to one appeared completely immaterial
to the other. This failure of the hearing to
advance the litigation was, a.t bottom, the consequence
of a more basic failure to join issue on the considerations
that should control the President's ultimate decision,
a problem to which we will return in the ensuing
section.
Upon reviewing the hearing transcript and exhibits,
the President reaffirmed his prior decision to deny petitioners
recognition as a campus organization. The
reasons stated, closely paralleling his initial reasons, were
that the group would be a "disruptive influence" at
CCSC and that recognition would be "contrary to the
orderly process of change" on the campus.
After the President's second statement issued, the case
then returned to the District Court, 'Where it was ordered
dismissed. The court concluded, first, that the formal
requisites of procedural due process had been complied
with, second, that petitioners had failed to meet their
burden of showing that they could function free from
the National organization, and, third, that the College's
refusal to place its stamp of approval on an organization
whose conduct it found "likely to cause violent acts
of disruption" did not violate petitioners' associational
rights. 319 F. Supp. 113, 116.
Petitioners appealecl to the Court of Appeals for the
Second Circuit where, by a two-to-one vote, the District
Court's judgment was affirmed. The majority purported
not to reach the substantive First Amendment issues on
the theory that petitioners had failed to avail themselves
of the due process accorded them and had failed to meet
their burden of complying with the prevailing standarcls
for recognition. 445 F. 2d 1122, 1131-1132. Judge
180 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
Smith dissented, disagreeing with the majority's refusal
to address the merits and finding that petitioners had
been deprived of basic First Amendment rights. Id.,
at 1136. This Court granted certiorari and, for the
reasons that follow, we conclude that the judgments
of the courts below must be reversed and the case remanded
for re<:onsideration.
II
At the outset we note that state colleges and universities
are not enclaves immune from the sweep of the First
Amendment. "It can hardly be argued that either students
or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate."
Tinker v. Des Moines Independent School District, 393
U. S. 503, 506 (1969). Of course, as Mr. Justice Fortas
made clear in Tinker, First Amendment rights must
always be applied "in light of the special characteristics
of the ... environment" in the particular case.
Ibid. And, where state-operated educational institutions
are involved, this Court has long recognized "the
need for affirming the comprehensive authority of the
States and of school officials, consistent with fundamental
constitutional safeguards, to prescribe and control conduct
in the schools." Id., at 507. Yet, the precedents of
this Court leave no room for the view that, because of
the acknowledged need for order, First Amendment protections
should apply with less force on college campuses
than in the community at large. Quite to the
contrary, "[t]he vigilant protection of constitutional
freedoms is nowhere more vital than in the community
of American schools." Shelton v. Tucker, 364 U. S.
479, 487 (1960). The college classroom with its surrounding
environs is peculiarly the " 'marketplace of
ideas,' " and we break no new constitutional ground in
reaffirming this Nation's dedication to safeguarding acaHEALY
v. JAMES 181
169 Opinion of the Court
demic freedom. Keyishian v. Board of Regents, 385
U. S. 589, 603 (1967); Sweezy v. New Hampshire, 354
U. S. 234, 249-2,50 ( 1957) (plurality opinion of Mr.
Chief Justice Warren), 262 (Frankfurter, J., concurring
in result).
Among the rights protected by the First Amendment is
the right of individuals to associate to further their personal
beliefs. While the freedom of association is not explicitly
set out in the Amendment, it has long been held
to be implicit in the freedoms of speech, assembly, and
petition. See, e. g., Baird v. State Bar of Arizona, 401
U. S. 1, 6 (1971); NAACP v. Button, 371 U. S. 415,
430 (1963); Louisiana ex rel. Gremillion v. NAACP,
366 U. S. 293, 296 (1961); NAACP v. Alabama ex rel.
Patterson, 357 e. S. 449 (1958) (Harlan, J., for a
unanimous Court) . There can be no doubt that denial
of official recognition, without justification, to college
organizations burdens or abridges that associational
right. The primary impediment to free association
flowing from nonrecognition is the denial of use of
campus facilities for meetings and other appropriate
purposes. The practical effect of nonrecognition was
demonstrated in this case when, several days after the
President's decision was announced, petitioners ·were not
allowed to hold a meeting in the campus coffee shop
because they were not an approved group.
Petitioners' associational interests also were circumscribed
by the denial of the use of campus bulletin boards
and the school newspaper. If an organization is to remain
a viable entity in a campus community in which
new students enter on a regular basis, it must possess
the means of communicating with these students. Moreover,
the organization's ability to participate in the intellectual
give and take of campus debate, and to pursue
its stated purposes, is limited by denial of access to the
customary media for communicating ·with the admin182
OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
istration, faculty members, and other students.8 Such
impediments cannot be viewed as insubstantial.
Respondents and the courts belo,w appear to have
taken the view that denial of official recognition in this
case abridged no constitutional rights. The District
Court concluded that
"President James' discretionary action in denying
this application cannot be legitimately magnified
and distorted into a constitutionally cognizable
interference with the personal ideas or beliefs of
any segment of the college students; neither does
his action deter in any material way the individual
advocacy of their personal beliefs; nor can his action
be reasonably construed to be an invasion of, or
having a chilling effect on academic freedom." 319
F. Supp., at 116.
In that court's view all that was denied petitioners was
the "administrative seal of official college respectability."
9 Ibid. A majority of the Court of Appeals
agreed that petitioners had been denied only the "college's
stamp of approval." 445 F. 2d, at 1131. Respondents
take that same position here, arguing that
petitioners still may meet as a group off campus, that
8 It is unclear on this record whether recognition also ~arries with
it a right to seek funds from the school budget. Petitioners' counsel
'l.t oral argument indicated that official recognition entitled the group
to "make application for use of student funds." Tr. of Oral Arg.
4. The first District Court opinion, however, states flatly that
"[r]ecognition does not thereby entitle an organization to college
financial support." 311 F. Supp. 1275, 1277. Since it appears that,
·at the least, recognition only entitles a group to apply for funds,
and since the record is silent as to the criteria used in allocating
such funds, we do not ronsider possible funding as an associational
aspect of nonrecognition in this case.
9 These statements are in contrast to the first opinion by the
District Court, which reflected a full appreciation of the constitutional
significance of petitioners' claim. 311 F. Supp., at 1280-1282.
HEALY v. JAMES 183
169 Opinion of the Court
they still may distribute written material off campus,
and that they still may meet together informally on
campus-as individuals, but not as CCSC-SDS.
We do not agree with the characterization by the
courts below of the consequences of nonrecognition. We
may concede, as did Mr. Justice Harlan in his opinion
for a unanimous Court in NAACP v. Alabama ex rel.
Patterson, 357 U. S., at 461, that the administration
"has taken no direct action . . . to restrict the
rights of [petitioners] to associate freely ... . " But
the Constitution's protection is not limited to direct
interference with fundamental rights. The requirement
in Patterson that the NAACP disclose its membership
lists was found to be an impermissible, though indirect,
infringement of the members' associational rights. Likewise,
in this case, the group's possible ability to exist
outside the campus community does not ameliorate significantly
the disabilities imposed by the President's
action. We are not free to disregard the practical realities.
MR. JusTICE STEWART has made the salient point:
"Freedoms such as these are protected not only against
heavy-handed frontal attack, but also from being stifled
by more subtle governmental interference." Bates v.
City of Little Rock, 361 U. S. 516, 523 (1960). See
also Sweezy v. New Hampshire, 354 U.S., at 263 (Frankfurter,
J., concurring in result); Watkins v. United States,
354 U.S. 178, 197 (1957).
The opinions below also assumed that petitioners had
the burden of showing entitlement to recognition by the
College.'0 While petitioners have not challenged the
procedural requirement that they file an application
in conformity with the rules of the College,11 they do
10 445 F. 2d, at 1131; 319 F. Supp., at 116.
11 The standa.rds for official recognition require applicants to
provide a clear statement of purposes, criteria for membership, rules
of procedure, and a list of officers. Applicants must limit member184
OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
question the view of the courts below that final rejection
could rest on their failure to convince the administration
that their organization was unaffiliated with
the National SDS. For reasons to be stated later in
this opinion, we do not consider the issue of affiliation
to be a controlling one. But, apart from any particular
issue, once petitioners had filed an application in
conformity with the requirements, the burden was
upon the College administration to justify its decision
of rejection. See, e. g., Law Students Civil Rights Research
Council v. Wadmond, 401 U. S. 154, 162-163
(1971); United States v. O'Brien, 391 U.S. 367, 376-377
(1968); Speiser v. Randall, 357 U. S. 513 (1958). It
is to be remembered that the effect of the College's denial
of recognition was a form of prior restraint, denying to
petitioners' organization the range of associational activities
described above. While a college has a legitimate
interest in preventing disruption on the campus, which
under circumstances requiring the safeguarding of that
interest may justify such restraint, a "heavy burden"
rests on the college to demonstrate the appropriateness
of that action. See Near v. Minnesota, 283 U. S. 697,
713-716 (1931); Organization for a Better Austin v.
Keefe, 402 U. S. 415, 418 (1971); Freedman v. Maryland,
380 U. S. 51, 57 (1965).
III
These fundamental errors-discounting the existence
of a cognizable First Amendment interest and misplacship
to "matriculated students" and may not discriminate on the
basis of race, religion or nationality. The standards further state
that groups may "examine ancl discuss all questions of interest," and
they may conduct demonstrations and utilize their right of petition,
but they are prohibited from interfering with the rights of other
students. See n. 5, supra. Petitioners have not challenged these
standards and their validity is not here in question.
HEALY v. JAMES 185
169 Opinion of the Court
mg the burden of proof-require that the judgments
below be reversed. But we are unable to conclude that
no basis exists upon which nonrecognition might be appropriate.
Indeed, based on a reasonable reading of
the ambiguous facts of this case, there appears to be
at least one potentially acceptable ground for a denial
of recognition. Because of this ambiguous state of the
record we conclude that the case should be remanded,
and, in an effort to provide guidance to the lower courts
upon reconsideration, it is appropriate to discuss the
several bases of President James' decision. Four possible
justifications for nonrecognition, all closely related,
might be derived from the record and his statements.
Three of those grounds are inadequate to substantiat€
his decision: a fourth, however, has merit.
A
From the outset the controversy in this case has centered
in large measure around the relationship, if any,
between petitioners' group and the National SDS. The
Student Affairs Committee meetings, as reflected in its
minutes, focused considerable attention on this issue;
the court-ordered hearing also was directed primarily
to this question. Despite assurances from petitioners
and their counsel that the local group was in fact independent
of the National organization, it is evident that
President James was significantly influenced by his apprehension
that there was a connection. Aware of the
fact that some SDS chapters had been associated with
disruptive and violent campus activity, he apparently
considered that affiliation itself was sufficient j ustification
for denying recognition.12
Although this precise issue has not come before the
Court heretofore, the Court has consistently disapproved
12 Seen. 4, supra, for the complete text of the President's statement.
186 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
governmental action imposing criminal sanctions or denying
rights and privileges solely because of a citizen's
association with an unpopular organization. See, e. g.,
United States v. Robel, 389 U. S. 258 (1967); K eyi,Shian
v. Board of Regents, 385 U. S., at 605~610; Elfbrandt
v. Russell, 384 U. S. 11 (1966); Scales v. United
States, 367 U. S. 203 (1961). In these cases it has
been established that "guilt by association alone, without
[ establishing 1 that an individual's association poses
the threat feared by the Government," is an impermissible
basis upon which to deny First Amendment
rights. United States v. Robel, supra, at 265. The
government has the burden of establishing a knowing
affiliation with an organization possessing unlawful aims
and goals, and a specific intent to further those illegal
aims.13
Students for a Democratic Society, as conceded by the
College and the lower courts, is loosely organized, having
various factions and promoting a number of diverse social
and political views, only some of which call for unlawful
action.14 Not only did petitioners proclaim their complete
independence from this organization,15 but they also
13 In addition to the cases cited in the text. above, see also Law
Students Civil Rights Research Council v. Wadmond, 401 U. S. 154,
164-166 (1971); In re Stolar, 401 U. S. 23, 28 (1971); Aptheker
v. Secretary of State, 378 U. S. 500 (1964); Noto v. United States,
367 U.S. 290, 299~300 (1961).
14 Sec Hearings before a Subcommittee of the House Committee on
Appropriations, 92d Cong., 2d Sess., pt. 1, p. 916 (1972), in which
the former Director of the Federal Bureau of Investigation, J. Edgar
Hoover, stated that while violC'nt factions have spun off from SDS,
its present leadership is "critical of bombing and violence."
' " Petitioners asserted their independence both orally and in a
written submission before the Student Affairs Committee. They restated
their nonaffiliation in a formal statement filed prior to the
court-ordered hearing. The only indication to the contrary is their
unwillingness to eschew use of the SDS name altogether. But see
n. 3, supra.
HEALY v. JAMES 187
169 Opinion of the Court
indicated that they shared only some of the beliefs its
leaders have expressed.16 On this record it is clear that
the relationship was not an adequate ground for the
denial of recognition.
B
Having concluded that petitioners were affiliated with,
or at least retained an affinity for, National SDS, President
James attributed ·what he believed to be the philosophy
of that organization to the local group. He
characterized the petitioning group as adhering to "some
of the major tenets of the national organization," including
a philosophy of violence and disruption.11 Understandably,
he found that philosophy abhorrent. In an
article signed by President James in an alumni periodical,
and made a part of the record below, he announced
his unwillingness to "sanction an organization that openly
advocates the destruction of the very ideals and freedoms
upon which the academic life is founded." He further
emphasized that the petitioners' "philosophies" were
"counter to the official policy of the college."
The mere disagreement of the President with the
group's philosophy affords no reason to deny it recognition.
As repugnant as these views may have been,
~specially to one with President James' responsibility,
the mere expression of them would not justify the denial
of First Amendment rights. Whether petitioners did
in fact advocate a philosophy of "destruction" thus becomes
immaterial. The College, acting here as the instrumentality
of the State, may not restrict speech or
association simply because it finds the views expressed
,,; Representatives of the group stated during the Student Affairs
Committee meetings that they did not identify with all of the National's
statements, but wished simply to "pick ... certain ideas"
from that organization.
17 See n. 4, supra.
188 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
by any group to be abhorrent. As Mr. Justice Black
put it most simply and clearly:
"I do not believe that it can be too often repeated
that the freedoms of speech, press, petition and
assembly guaranteed by the First Amendment must
be accorded to the ideas we hate or sooner or later
they will be denied to the ideas we cherish." Communist
Party v. SACB, 367 U. S. 1, 137 (dissenting
opinion) (1961).
C
As the litigation progressed in the District Court, a
third rationale for President James' decision-beyond
the questions of affiliation and philosophy-began to
emerge. His second statement, issued after the courtordered
hearing, indicates that he based rejection on
a conclusion that this particular group would be a "disruptive
influence at CCSC." This language was underscored
in the second District Court opinion. In fact,
the court concluded that the President had determined
that CCSC-SDS' "prospective campus activities were
likely to cause a disruptive influence at CCSC." 319
F. Supp., at 116.
If this reason, directed at the organization's activities
rather than its philosophy, were factually supported by
the record, this Court's prior decisions would provide
a basis for considering the propriety of nonrecognition.
The critical line heretofore drawn for determining the
permissibility of regulation is the line between mere
advocacy and advocacy "directed to inciting or producing
imminent lawless action and ... likely to incite
or produce such action." Brandenburg v. Ohio, 395 U. S.
444, 447 (1969) (unanimous per curiam opinion). See
also Scales v. United States, 367 U. S., at 230-232;
Noto v. United States, 367 U. S. 290, 298 (1961);
HEALY v. JAMES 189
169 Opinion of the Court
Yates v. United States, 354 U. S. 298 (1957). In the
context of the "special characteristics of the school
environment," 18 the power of the government to prohibit
"lawless action" is not limited to acts of a criminal
nature. Also prohibitable are actions which "materially
and substantially disrupt the work and discipline of the
school." Tinker v. Des Moines Independent School
District, 393 U. S., at 513. Associational activities need
not be tolerated where they infringe reasonable campus
rules, interrupt classes, or substantially interfere with
the opportunity of other students to obtain an education.
The "Student Bill of Rights" at CCSC, upon which
great emphasis was placed by the President, draws precisely
this distinction between advocacy and action. It
purports to impose no limitations on the right of college
student organizations "to examine and discuss all
questions of interest to them." (Emphasis supplied.)
But it also states that students have no right (1) "to
deprive others of the opportunity to speak or be heard,"
(2) "to invade the privacy of others," (3) "to damage
the property of others," ( 4) "to disrupt the regular and
essential operation of the college/' or ( 5) "to interfere
with the rights of others." 19 The line between permissible
speech and impermissible conduct tracks the
constitutional requirement, and if there were an evidential
basis to support the conclusion that CCSC-SDS
posed a substantial threat of material disruption in
violation of that command the President's decision should
be affirmed. 2"
16 Tinker v. Des Moines Independent School District, 393 U. S.
503, 506 (1969).
19 Seen. 5, supra.
20 It may not be sufficient merely to show the exiotence of a legitimate
and substantial state interest. Where state action designed to
regulate prohibitable action also restricts associational rights-as
nonrecognition does- the State must demonstrate that the action
190 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
The record, however, offers no substantial basis for
that conclusion. The only support for the view expressed
by the President, other than the reputed
affiliation with National SDS, is to be found in the
ambivalent responses offered by the group's representatives
at the Student Affairs Committee hearing, during
which they stated that they did not know whether they
might respond to "issues of violence" in the same manner
that other SDS chapters had on other campuses.
Nor would they state unequivocally that they could
never "envision ... interrupting a class." ·whatever
force these statements might be thought to have is
largely dissipated by the following exchange between
petitioners' counsel and the Dean of Student Affairs
during the court-ordered hearing:
Counsel: ". . . I just read the document that
you're offering [minutes from Student Affairs Committee
meeting] and I can't see that there's anything
in it that intimates that these students contemplate
any illegal or disruptive practice."
Dean: "No. There's no question raised to that,
counselor .... " App. 73~74.
Dean Judd's remark reaffirms, in accord with the full
record, that there was no substantial evidence that
these particular individuals acting together would conl.'
Lken is reasonably related to protection of the State's interest and
that "the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest."
United States v. O'Brien, 391 U.S. 367, 377 (1968). See also NAACP
v. Alabama ex re/. Flowers, 377 U.S. 288 (1964); Gibson v. Florida
Legislative Investigation Committee, 372 U. S. 539, 546 ( 1963);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). On this
record, absent. a showing of any likelihood of disruption or unwillingness
to re<'ognize reasonable rules governiug campus conduct, it is
not necessary for us to decide whether denial of recognition is an
appropriately related and narrow response.
HEALY v. JAMES 191
169 Opinion of the Court
stitute a disruptive force on campus. Therefore, insofar
as nonrecognition flowed from such fears, it constituted
little more than the sort of "undifferentiated fear or
apprehension of disturbance [ which] is not enough to
overcome the right to freedom of expression." Tinker
v. Des Moines Independent School District, 393 U. S.,
at 508.
D
These same references in the record to the group's
equivocation regarding how it might respond to "issues
of violence" and whether it could ever "envision . . .
interrupting a class," suggest a fourth possible reason why
recognition might have been denied to these petitioners.
These remarks might well have been read as announcing
petitioners' unwillingness to be bound by reasonable
school rules governing conduct. The College's Statement
of Rights, Freedoms, and Responsibilities of Students
contains, as we have seen, an explicit statement
with respect to campus disruption. The regulation,
carefully differentiating between advocacy and action, is
a reasonable one, and petitioners have not questioned
it directly.21 Yet their statements raise considerable
question whether they intend to abide by the prohibitions
contained therein.22
01 Seen. 5, supra.
"" The Court of Appeals found that petition€'rs "failed candidly
to respond to inquiries whether they would resort to violence and
disruption on the CCSC campus, including interruption of rlas•es."
445 F. 2d, at 1131. While petitioners' stakments may be read as
intimating a rejection of reasonable regulations in advance, there is
in fact substantial ambiguity on this point. The quc~tions asked
by members of the Student Affairs Committee do not appear to have
been propounded with any clear distinction in mind between that
which the petitioners might advocate and the conduct in which
they might engage. Nor did the Student Affairs Committee attempt
to obtain a rlarification of the petitioners' ambiguous answers by
192 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
As we have already stated in Parts B and C, the critical
line for First Amendment purposes must be drawn
between advocacy, which is entitled to full protection,
and action, which is not. Petitioners may, if they so
choose, preach the propriety of amending or even doing
away with any or all campus regulations. They may
not, however, undertake to flout these rules. MR. Jus-
TICE BLACK MUN, at the time he was a circuit judge on
the Eighth Circuit, stated:
"We ... hold that a college has the inherent power
to promulgate rules and regulations; that it has
the inherent power properly to discipline; that it
has power appropriately to protect itself and its
property; that it may expect that its students adhere
to generally accepted standards o( conduct."
Esteban v. Central Missouri State College, 415 F.
2d 1077, 1089 (CA8 1969), cert. denied, 398 U.S. 965
( 1970).
Just as in the community at large, reasonable regulations
with respect to the time, the place, and the manner
in which student groups conduct their speech-related
asking specifically whether the group was willing to abide by the
Student Bill of Rights governing all campus organizations.
Moreover, this question was not among those referred by th('
District Court to the administrative hearing, and it was there addressed
only tangentially. The group members who had made
statements before the Student Affairs Committee did not testify,
and their position was not clarified. Their counsel, whose tactics
were characterized as "disruptive" by the Court of AppMls, elected
to make argumentative statements rather than elicit relevant testimony.
Id., at 1126. Indeed, the District Court's failure to identify
the question of willingness to abide by the College's rules and regulations
as a significant subject of inquiry, coupled with the equivocation
on the part of ti1e group's representatives, lE'mls support to our
view that a remand is necessary.
HEALY v. JAMES 193
169 Opinion of the Court
activities must be respected.23 A college administration
may impose a requirement, such as may have
been imposed in this case, that a group seeking official
recognition affirm in advance its willingness to adhere
to reasonable campus law. Such a requirement does
not impose an impermissible condition on the students'
associational rights. Their freedom to speak out, to
assemble, or to petition for changes in school rules is
in no sense infringed. It merely constitutes an agreement
to conform with reasonable standards respecting
conduct. This is a minimal requirement, in the interest
of the entire academic community, of any group seeking
the privilege of official recognition.
Petitioners have not challenged in this litigation the
procedural or substantive aspects of the College's requirements
governing applications for official recognition.
Although the record is unclear on this point, CCSC may
have, among its requirements for recognition, a rule
that prospective groups affirm that they intend to comply
with reasonable campus regulations. Upon remand
it should first be determined whether the College recognition
procedures contemplate any such requirement.
If so, it should then be ascertained whether petitioners
intend to comply. Since we do not have the terms of
a specific prior affirmation rule before us, we are not
called on to decide whether any particular formulation
would or would not prove constitutionally acceptable.
Assuming the existence of a valid rule, however, ,ve do
conclude that the benefits of participation in the internal
life of the college community may be denied to any
23 See, e. g., Adderley v. Florida, 385 U. S. 39, 47--48 (1966); Cox
v. Louisiana, 379 U.S. 536, 5.58 (196.5); Louisiana ex rel. Gremillion
v. NAACP, 366 U.S. 293,297 (1961).
194 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
group that reserves the right to violate any valid campus
rules with which it disagrees.24
IV
We think the above discussion establishes the appropriate
framework for consideration of petitioners' request
for campus recognition. BecauS€ respondents
failed to accord due recognition to First Amendment
principles, the judgments below approving respondents'
denial of recognition must be reversed. Since we cannot
conclude from this record that petitioners were willing
to abide by reasonable campus rules and regulations,
we order the case remanded for reconsideration. We note,
in so holding, that the wide latitude accorded by the Constitution
to the freedoms of expression and association is
not without its costs in terms of the risk to the maintenance
of civility and an ordered society. Indeed, this
latitude of ten has resulted, on the campus and elsewhere,
in the infringement of the rights of others. Though we
deplore the tendency of some to abuse the very constitutional
privileges they invoke, and although the infringement
of rights of others certainly should not be tolerated,
we reaffirm this Court's dedication to the principles of the
Bill of Rights upon which our vigorous and free society
is founded.
Reversed and remanded.
24 In addition to the College administration's broad rulcmaking
power to assure that the traditional academic atmosphere is safeguarded,
it may also impose sanctions on those who violate thP
rules. We find, for instance, that the Student Affairs Committee's
admonition to petitioners in this case suggests one permissible practice--
recognitfon, once accorded, may be withdrawn or srnpended
if petitioners fail to rcspert rampus law. Set\ e. g., University of
Southern Mississippi Chapter of Mississippi Civil Liberties ['ninn v.
University of Southern Mississippi, 452 F. 2d 564 (CA5 1971) ;
American Civil Liberties Union v. Radford College, 315 F. Supp
893 (WD Va. 1970).
HEALY v. JAMES 195
169 BURGER, C. J., concurring
MR. CHIEF JUSTICE BURGER, concurring.
I am in agreement with what is said in the Court's
opinion and I join in it. I do so because I read the
basis of the remand as recognizing that student organizations
seeking the privilege of official campus recognition
must be willing to abide by valid rules of the institution
applicable to all such organizations. This is a
reasonable condition insofar as it calls for the disavowal
of resort to force, disruption, and interference ,vith the
rights of others.
The District Judge was troubled by the lack of a
comprehensive procedural scheme that would inform
students of the steps to be taken to secure recognized
standing, and by the lack of articulated criteria to be
used in evaluating eligibility for recognition. It was
for this reason, as I read the record, that he remanded
the matter to the college for a factual inquiry and for
a more orderly processing in a de nova hearing within
the college administrative structure. It is within that
structure and within the academic community that problems
such as these should be resolved. The courts, state
or federal, should be a last resort. Part of the educational
experience of every college student should be an
experience in responsible self-government and this must
be a joint enterprise of students and faculty. It should
not be imposed unilaterally from above, nor can the
terms of the relationship be dictated by students. Here,
in spite of the wisdom of the District Court in sending
the case back to the college, the issue identified by the
Court's opinion today was not adequately addressed in
the hearing.
The relatively placid life of the college campus of the
past has not prepared either administrators or students
for their respective responsibilities in maintaining an
atmosphere in which divergent views can be asserted
196 OCTOBER TERM, 1971
Opinion of DouoLAs, J. 408 U.S.
vigorously, but civilly, to the end that those who seek
to be heard accord the same right to all others. The
"Statement on Rights, Freedoms and Responsibilities of
Students," sometimes called the "Student Bill of Rights,"
in effect on this campus, and not questioned by petitioners,
reflected a rational adjustment of the competing
interests. But it is impossible to know from the record
in this case whether the student group was willing to
acknowledge an obligation to abide by that "Bill of
Rights."
Against this background, the action of the Court 111
remanding on this issue is appropriate.
MR. JUSTICE DOUGLAS.
While I join the opinion of the Court, I add a few
words.
As Dr. Birenbaum* says, the status quo of the college
or university is the governing body ( trustees or overseers),
administrative officers, who include caretakers, and the
police, and the faculty. Those groups have well-defined
or vaguely inferred values to perpetuate. The customary
technique has been to conceive of the minds of
students as receptacles for the information which the
faculty have garnered over the years. Education is
commonly thought of as the process of filling the receptacles
with what the faculty in its wisdom deems fit and
proper.
Many, inside and out of faculty circles, realize that
one of the main problems of faculty members is their
own re-education or re-orientation. Some have narrow
specialties that are hardly relevant to modern times.
History has passed others by, leaving them interesting
relics of a bygone day. More often than not they represent
those who withered under the pressures of Mc-
Carthyism or other forces of conformity and reprernnt
*See the Appendix to this opinion.
HEALY v. JAMES 197
169 Appendix to opinion of DoucLAs, J.
but a timid replica of those who once brought distinction
to the ideal of academic freedom.
The confrontation between them and the oncoming
students has often been upsetting. The problem is not
one of choosing sides. Students-who, by reason of
the Twenty-sixth Amendment, become eligible to vote
when 18 years of age-are adults who are members of
the college or university community. Their interests and
concerns are often quite different from those of the faculty.
They often have values, views, and ideologies that
are at war with the ones which the college has traditionally
espoused or indoctrinated. When they ask for
change, they, the students, speak in the tradition of
Jefferson and Madison and the First Amendment.
The First Amendment does not authorize violence.
But it does authorize advocacy, group activities, and
espousal of change.
The present case is minuscule in the events of the
60's and 70's. But the fact that it has to come here
for ultimate resolution indicates the sickness of our
academic world, measured by First Amendment standards.
Students as well as faculty are entitled to credentials
in their search for truth. If we are to become an
integrated, adult society, rather than a stubborn status
quo opposed to change, students and faculties should
have communal interests in which each age learns from
the other. Without ferment of one kind or another, a
college or university (like a federal agency or other
human institution) becomes a useless appendage to a
society which traditionally has reflected the spirit of
rebellion.
APPENDIX TO OPINION OF DOUGLAS, J.
"A compulsory ghetto fails as a community became
its- inhabitants lack the power to develop common goals
and to pursue them effectively together. It fails too
198 OCTOBER TERM, 1971
Appendix to opinion of DouGLAS, J. 408 U.S.
because of a fatal disconnection between the possession
and use of power and the cognition that knowledge, as
a form of power, carries with it political responsibility.
In these respects the campus is now like the compulsory
ghetto.
"Those who deplore a view of the university in terms
of its powerful political role in American society must
account for the institution's use of political power in its
own terms, for its own purposes. I have come to feel
lately-partly, I guess, because of the legal reasoning
styles to which I have been exposed-that those playing
around with the structure of their universities these
days are playing with tinker toys. New committees,
new senates and new student-participation formulae do
not necessarily mean that anything has changed. Indeed,
if Berkeley, Columbia, Harvard and Chicago are
valid examples, restructuring turns out to be one of the
brilliant new inventions for sustaining the status quo.
The vested interests and essential privileges involved
in current efforts to restructure the university have yet
completely to surface. A substantial part of our melting
iceberg is still below the waterline.
"That part of the student critique of the university
which most deserves our attention bears upon what we
teach, how we teach it, and the terms on which it is
taught. One of the interesting things their critique
points out is that our building programs, corporate investments,
relationships to the immediate community
and to the society, and our views of citizenship inside
the university, all turn out to be projections and applications
of what we call or have called education. Their
critique suggests the perfectly absurd conclusion that
there is a relationship between their long hair and our
long war, between being a nurse and being a Negro, between
the freshman political-science course and the pollution
of fresh air, between education for freedom and
HEALY v. JAMES 199
169 Appendix to opinion of Douaus, J.
being free. Obviously, the contemporary American student
activist is crazy.
"We have probably made a mistake by revealing to
our students that there really is too much to know, and
only one way to learn it-our way. They have come
to accept this as gospel, and it has encouraged them to
view curriculum development as essentially a sophisticated
art of selection, interpretation and emphasis in
which they have a vested interest. Understanding this,
naturally they have begun to ask the key political
questions bearing upon our vested interests and privileges:
What experience and talent should be empowered
to select? Who should be empowered to employ
those who will interpret, and to deploy the wealth required
to support the enterprise?
"Obviously the control over who will be kept out and
over punishment-and-re,vard systems inside is extremely
important. While our students still generally concede
that the older adults who teach them may know something
they don't, they are also asserting the uniqueness
of their own experience, claiming that they may know
something which those now in charge don't. They have
returned to the kindergarten level to rediscover a principle
long revered in American education-that the student
plays a positive and active role, that he has something
definite and essential to contribute to his own
education.
"The young-suspended precariously in a society obsessed
by Vietnam violence, race violence, crime violence
and culture violence- are restating the eternal questions
about education: What is important to learn, and how
may people best learn together? Regarding these enduring
questions, they are also asking the eternal question
of a society which officially encourages its young
to grow up free ( even while keeping them in bondage) ,
namely: Who sha11 judge? Regarding the problems
200 OCTOBER TERM, 1971
Appendix to opinion of DouGLAS, J. 408 u. s.
these questions suggest, academic tradition responds
through an uptight delineation of jurisdictions and
powers within the university.
"Today's campus disruptions were born in the years
1776 to 1787. Although the mind of Thomas Jefferson
was anchored in the traditions of Heidelberg, Oxford,
Paris, Bologna, Rome, Greece, the religions of the early
Christians and the ancient Hebrews, minds like his transformed
the old into something quite new, as in the case
of his proposal for a university in Virginia. What was
created then was not, of course, the latest thing, nor
was it necessarily the Truth. But it was an adventure,
a genuine new departure, unlike most of the institutions
of learning we have created in this country since the
Morrill Act-that is, most of our higher-education
establishment.
"The traditions of the university in the West are
anti- if not counter-revolutionary. Operating within
these traditions, the university has produced revolutior:-
ary knowledge, but institutionally the uses of the knowledge
have been directed mainly toward the confirmation
of the status quo, particularly the political and cultural
status quo. The themes of peace, integration, equality,
freedom and the humane uses of knowledge are ones
which traditionally fall beyond the purview of the
university.
"But in principle the main themes of our society run
counter to this deployment of knowledge. In spite of
Vietnam, poverty, racism and the overbearing logic of
our technology-in spite of Bedford-Stuyvesant-the
main themes of our country, in principle, were and still
are revolutionary. They are reflected in such questions
as these: Can the revolutionary knowledge developed in
the universities be used humanely, to conform with what.
Jefferson and his colleagues apparently meant? What
HEALY v. JAMES 201
169 REHNQUIST, J ., concurring in result
does equality mean, and whatever it meant or means,
can we still achieve a version of it consistent with this
adventure? Are reason and democracy really consistent?
Is war in behalf of peace, given what we know
now, realistic? Can Negroes who were once property
suddenly become people? Are some genocides more decent
than others, some cesspools more fragrant than
others?
"In any event, I know that Bedford-Stuyvesant is
crammed full of red-white-and-blue Americans. They
really believe that we ought to practice what we preach,
and that's the problem. We've oversold America to
ourselves, and so many of my very good friends-looking
at the street violence and the circuses in the courts
and on the campuses-who believe we confront a deeply
un-American phenomenon, who think we face a serious
threat to American values, completely misread what is
going on there. We face a vibrant, far-reaching reassertion
of what this country claims, what it has always
claimed it is." W. Birenbaum, Something For Everybody
Is Not Enough 67-69, 248-249.
MR. JUSTICE REHNQUIST, concurring in the result.
While I do not subscribe to some of the language in
the Court's opinion, I concur in the result that it reaches.
As I understand the Court's holding, the case is sent
back for reconsideration because respondents may not
have made it sufficiently clear to petitioners that the decision
as to recognition would be critically influenced by
petitioJ1ers' willingness to agree in advance to abide by
reasonable regulations promulgated by the college.
I find the implication clear from the Court's opinion
that the constitutional limitations on the government's
acting as administrator of a college differ from the limitations
on the government's acting as sovereign to enforce
its criminal laws. The Court's quotations from Tinker
202 OCTOBER TERM, 1971
REHNQUIST, ,T., concurring in result 408 u. s.
v. Des Moines Independent School District, 393 U. S.
503, 506 (1969), to the effect that First Amendment
rights must always be applied "in light of the special
characteristics of the . . . environment," and from
Esteban v. Central Missouri State College, 415 F. 2d
1077, 1089 (CA.8 1969), to the effect that a college "may
expect that its students adhere to generally accepted
standards of conduct," emphasize this fact.
Cases such as United Public Workers v. Mitchell, 330
U.S. 75 (1947), and Pickering v. Board of Education, 391
U.S. 563 (1968), make it equally clear that the government
in its capacity as employer also differs constitutionally
from the government in its capacity as the sovereign
executing criminal laws. The Court in Pickering
said:
"The problem in any case is to arrive at a balance
between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the
interest of the State, as an employer, in promoting
the efficiency of the public services it performs
through its employees." 391 U. S., at 568.
Because of these acknowledged distinctions of constitutional
dimension based upon the role of the government,
I have serious doubt as to whether cases dealing
with the imposition of criminal sanctions, such as Brandenburg
v. Ohio, 395 U. S. 444 (1969), Scales v. United
States, 367 U.S. 203 (1961), and Yates v. United States,
354 U. S. 298 ( 1957), are properly applicable to this case
dealing with the government as college administrator. I
also doubt whether cases dealing with the prior restraint
imposed by injunctive process of a court, such as Near
v. Minnesota, 283 U. S. 697 (1931), are precisely comparable
to this case, in which a typical sanction imposed
was the requirement that the group abandon its plan to
meet in the college coffee shop.
HEALY v. JAMES 203
169 REHNQUIST, .J., concurring in result
Prior cases dealing with First Amendment rights are
not fungible goods, and I think the doctrine of these cases
suggests two important distinctions. The government
as employer or school administrator may impose upon
employees and students reasonable regulations that would
be impermissible if imposed by the government upon all
citizens. And there can be a constitutional distinction
between the infliction of criminal punishment, on the
one hand, and the imposition of milder administrative or
disciplinary sanctions, on the other, even though the same
First Amendment interest is implicated by each.
Because some of the language used by the Court tends
to obscure these distinctions, which I believe to be important,
I concur only in the result.
204 OCTOBER TERM, 1971
Syllabus 408 u. s.
MANCUSI, CORRECTIONAL SUPERINTEXDENT
V. STUBBS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 71-237. Argued April 17, 19i2-Decided .Tune 26, 1972
New York State sentenced respondent as a second offender, based
on his 1964 felony conviction in Tennessee. Respondent's petition
for federal habeas corpus, denied by the District Court, was granted
by the Court of Appeals, which concluded that the Tennessee conviction
violated his Sixth and Fourteenth Amendment right to'
confront witnesses and thus was not available as the predicate
for a "second offender" stiffer punishment. The State then resentenced
respondent to the same sentence, based upon still another
conviction in Texas. Held:
1. New York State's rcsentencing of respondent did not moot
the instant case since the respondent's appPal involving the validity
of the Texas convil'tion is still in the New York state court,, and
therefore New York State has a present interest in the availability
of the Tennessee conviction as a prPdicate for thr. stiffer puui$hrnent.
Pp. 205-207.
2. Upon discovering that a State's witness had removed himself
permanently to a foreign country, the State of Tennessee was
powerless to compel his attendance at respondent's second trial,
either through its own process or through established procedures
depending upon the voluntary assistance of another government;
the resultant predicate of unavailability was sufficiently strong not
to warrant a federal habeas corpus court's upsetting the State's
determination that the witness was not available. Barber v. Page,
390 U. S. 719, distinguished. Pp. 207-213.
3. Where a State's witness is bona fide unavailable, the requirements
of the Confrontation Clause are met when prior-recorded
testimony of the witness is admitted, as occurred in the 1964 trial,
if that prior testimony bears "indicia of reliability" that would
afford "the trier of fact a satisfactory basis for evaluating the
truth of the prior statement." Dutton v. Evans, 400 U. S. 74,
89. Pp. 213-216.
442 F. 2d 561, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
MANCUSI v. STUBBS 20.5
204 Opinion of the Court
BURGER, C . .T., and BRENNAN, STEWART, WHITE, BLACKMUN, and
PowELL, .JJ., joined. MARSHALL, J., filed a dissenting opinion, in
Part II of which DouGLAS, J., joined, post, p. 216.
Maria L. Marcus, Assistant Attorney General of New
York, argued the cause for petitioner. With her on the
brief were Louis J. Lefkowitz, Attorney General, Samuel
A. Hirshowitz, First Assistant Attorney General, and
Stanley L. Kantor, Deputy Assistant Attorney General.
Bruce K. Carpenter (for Court appointment of counsel,
see 406 U. S. 941) argued the cause and filed a brief
for respondent.
Melvin Bressler filed a brief for the District Attorney
of Monroe County, New York, as amicus curiae.
MR. JusTICE REHNQUIST delivered the opinion of the
Court.
Respondent Stubbs was convicted of a felony in a
New York State court and sentenced as a second offender
under the laws of that State by reason of a prior Tennessee
murder conviction obtained in 1964. He thereafter
sought federal habeas corpus, claiming that the Tennessee
conviction was had in violation of his Sixth and Fourteenth
Amendment right to confront witnesses against
him, and thus could not be used by New York as the
predicate for a stiffer punishment. The District Court
denied habeas corpus, but the Court of Appeals reversed,
442 F. 2d 561 (CA2 1971). We granted certiorari, 404
U. S. 1014, and reverse for the reasons hereinafter stated.
I
Prior to our consideration of the merits it is necessary
to deal with a suggestion that because petitioner did not
seek a stay of the mandate of the Court of Appeals, but
rather obeyed it and resentenced Stubbs, this case is
therefore moot. The parties agreed at oral argument
that Stubbs upon resentencing in New York had received
206 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
the same sentence, based upon still another conviction
in Texas. However, he was appealing from that sentence
on grounds that the Texas conviction was constitutionally
infirm, and that appeal has not run its course even
through the state courts.
Until it can be said with certainty that the New York
courts may validly resentence respondent to the same
term as they imposed prior to the decision of the Court
of Appeals now under review here, petitioner continues
to have an interest in the availability of the Tennessee
conviction as a support for second-off ender sentencing of
respondent. Petitioner's obedience to the mandate of
the Court of Appeals and the judgment of the District
Court docs not moot this case.' In Bakery Drivers v.
Wagshal, 333 U. S. 437 (1948), the union appealed from
an injunction issued by the United States District Court
1 The dissent states that this case is controlled by SEC v. Medical
Committee, 404 U.S. 403 (1972). In that case, respondn1t committee
had requested Dow Chemical to place the committee's proposed
resolution on the proxy statement for the annual meeting of Dow
Chemical stockholders. Dow Chemical initially refused the request,
and the committee thereupon invoked the aid of the SEC to bring
suit against Dow Chemical to compel inclusion of the proposal. The
SEC refused to bring suit, and thP committee then succeeded in having
the agency's refusal set aside by the Court of Appeals. While
review of this latter action was pending here, Dow Chemical acceded
to the committee's request. The committf<' thereby accomplished the
purpose for which it sought ancillary assistance from the SEC, not
because of compliance by the SEC with tlH' judgment under review,
but because of the action of Dow Chemiral, which was not required
to do anything by that judgment.
There would be a rough parallel between our case and SEC v.
Medical Committee if, pending review here of the ruling of the
Court of Appeals in favor of Stubbs, the Governor of New York
should pardon Stubbs. I3ut, on the farts we have before us now,
the mootness issue is controlled by Bakery Drivers v. Wa.gshal, 333
U. S. 437 (1948), and Dakota County v. Glidden, 11:l 11. S. 222
( 1885), rather than by SEC v. Medical Committee.
MANCUSI v. STUBBS 207
204 Opinion of the Court
on the ground that it had been issued in violation of the
provisions of the Norris-LaGuardia Act. Dealing with a
"preliminary claim" of mootness in that case, the Court
said:
"The claim of mootness is also based on an affidavit
stating that after dismissal of the appeal by the
Court of Appeals, the union lifted its boycott. Since
the record does not show that a stay of the injunction
was granted pending action in this Court, we
must assume that the union's action was merely
obedience to the judgment now here for review.
We therefore turn to the merits." 333 U.S., at 442.
Much earlier the Court had stated a similar view of
mootness in these circumstances:
"There can be no question that a debtor against
whom a judgment for money is recovered may pay
that judgment and bring a writ of error to reverse
it, and if reversed can recover back his money.
And a defendant in an action of ejectment may bring
a writ of error, and failing to give a supersedeas bond,
may submit to the judgment by giving possession
of the land, which he can recover if he reverses the
judgment by means of a writ of restitution. In both
these cases the defendant has merely submitted to
perform the judgment of the court, and has not
thereby lost his right to seek a reversal of that judgment
by writ of error or appeal." Dakota County
v. Glidden, 113 U. S. 222, 224 (1885).
Under these authorities the case is not moot, and we
turn to the merits.
II
In July 1954, respondent was convicted in the Tennessee
trial court of murder in the first degree, assault
with intent to murder, and two counts of kidnaping.
208 OCTOBER TER?\J, 1971
Opinion of the Court 408U.S.
The jury impaneled for that trial could have concluded
from the evidence presented to it that respondent, a few
days after his release from a Texas penitentiary in June
1954, kidnaped Mr. and Mrs. Alex Holr!1 and forced
them at gunpoint to accompany him in their car.
Stubbs drove the car and sat in the front seat, while the
Holms sat in the back seat. Mr. Holm testified that somewhere
east of Blountville, Tennessee, Stubbs, without
saying anything, shot him twice in the head and shot and
killed Mrs. Holm. Stubbs then left the car, obtained a
ride as a hitchhiker, and was ultimately arrested at a roadblock.
At the time of his arrest, Stubbs explained the
blood on his clothing as having resulted from his having
fallen off a cliff while fishing.
Stubbs took the stand in his own defense, admitted
that he had kidnaped the Holms at gunpoint, and that
as he drove the Holms' car, with them in the back
seat, he at intervals pointed the gun in Mrs. Holm's
face. He testified that during the ride he apologized for
forcing a ride; that the Holms then assured him they
would let him out at Bristol, Tennessee, and would not
cause him any trouble; and that he therefore laid the pistol
on the front seat of the car. He also testified that
near Bristol, Tennessee:
"It seems awful strange, but everything just seemed
to be awful still and I remember a tree and it just
seemed to come up just like that in clear focus,
but in a reddish haze. I mean there was no pain
or nothing. . . . I felt a sharp pain that seem to
start in my head and go all the way down through
me and I reached up with both hands and I hear<l
this loud roar, bang ... Stuff started running down
my face and down my shirt and all that I could
think of that he has got the gun. . . I just went
outside through the car door .... "
MANCUSI v. STUBBS 209
204 Opinion of the Court
After that, Stubbs testified, "everything went black."
Nine years after his state court trial for murder, Stubbs
sought release on federal habeas corpus from the United
States District Court for the Middle District of
Tennessee.
He successfully urged upon that court the contention
that he had been denied the effective assistance of counsel
in this 1954 trial because counsel had been appointed
for him only four days before the trial took place.
Stubbs v. Bomar, Civil Action No. 3585 (MD Tenn. 1964).
The State of Tennessee then elected to retry him, and
did so in 1964. By that time Holm, who had been born
in Sweden but had become a naturalized American
citizen, had returned to Sweden and taken up permanent
residence there. Tennessee issued a subpoena
that was sent to Texas authorities in an attempt to
serve Holm at his last knmvn United States address.
No service having been obtained, the State at trial called
Holm's son as a witness and elicited from him the fact
that his father now resided in Sweden. Over appropriate
objection on constitutional grounds, the Tennessee
trial judge then permitted Holm's testimony at the
earlier trial to be read to the jury. Stubbs again took
the stand, recited his version of the events, and was
again convicted. This conviction was in due course
affirmed by the Supreme Court of Tennessee. Stubbs
v. State, 216 Tenn. 567, 393 S. W. 2d 150 (1965).
Respondent has challenged the present second-offender
sentence that was imposed upon him by the New
York courts on the ground that his 1964 conviction upon
retrial was constitutionally infirm because he was denied
his Sixth and Fourteenth Amendment right to confront
the witness Holm. The Court of Appeals sustained this
contention, relying on this Court's opinion in Barber v.
Page, 390 U. S. 719 (1968).
210 OCTOBER TER;\-1, 1971
Opinion of the Court 408U.S.
In Barber, a prospective witness for the prosecution
in an Oklahoma felony trial was incarcerated in a federal
prison in Texas. The court there said:
"We start with the fact that the State made absolutely
no effort to obtain the presence of \Voods at
trial other than to ascertain that he was in a federal
prison outside Oklahoma. It must be acknowledged
that various courts and commentators have heretofore
assumed that the mere absence of a witness
from the jurisdiction was sufficient ground for dispensing
with confrontation on the theory that 'it
is impossible to compel his attendance, because the
process of the trial Court is of no force without the
jurisdiction, and the party desiring his testimony
is therefore helpless.' 5 Wigmore, Evidence § 1404
( 3d ed. 1940).
"Whatever may have been the accuracy of that
theory at one time, it is clear that at the present
time increased cooperation between the States themselves
and between the States and the Federal Government
has largely deprived it of any continuing
va1idity in the criminal law. For example, in the
case of a prospective witness currently in federal
custody, 28 U. S. C. § 2241 (c) (5) gives federal
courts the power to issue writs of habeas corpus
ad testificandum at the request of state prosecutorial
authorities. [Citations omitted.] In addition,
it is the policy of the United States Bureau
of Prisons to permit federal prisoners to testify in
state court criminal proceedings pursuant to writs
of habeas corpus ad testificandum issued out of state
courts ....
"In this case the state authorities made 110 effort
to avail themselves of either of the above alternative
means of seeking to secure Woods' presence at peti204
MANCUSI v. STUBBS 211
Opinion of the Court
tioner's trial." (Footnotes omitted.) Id., at 723-
724.
Because the State had made no attempt to use one of
these methods to obtain the attendance of the witness
at trial, the Court reversed the conviction on that ground
without considering whether the testimony taken at
the preliminary hearing was subject to cross-examination.
The Court said:
"Moreover, we would reach the same result on
the facts of this case had petitioner's counsel actually
cross-examined Woods at the preliminary hearing.
See Motes v. United States, 178 U. S. 458
(1900). The right to confrontation is basicaUy a
trial right. It includes both the opportunity to
cross-examine and the occasion for the jury to weigh
the derneanor of the witness. A preliminary hearing
is ordinarily a much less searching exploration into
the merits of a case than a trial, simply because its
function is the more limited one of determining
whether probable cause exists to hold the accused
for trial. While there may be some justification for
holding that the opportunity for cross-examination
of a witness at a preliminary hearing satisfies the
demands of the confrontation clause where the witness
is shown to be actually unavailable, this is not,
as we have pointed out, such a case." 390 U. S., at
725-726.
In this case, of course, Holm was not merely absent from
the State of Tennessee; he was a permanent resident
of Sweden. Respondent argues that Tennessee might
have obtained Holm as a trial witness by attempting
to invoke 28 U. S. C. § 1783 (a), which provided as of
the time here relevant that:
"A court of the United States may subpoena, for
appearance before it, a citizen or resident of the
212 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
United States who . . . is beyond the jurisdiction
of the United States and whose testimony in a criminal
proceeding is desired by the Attorney General.
... " (1958 ed.) (Emphasis supplied.)
We have been cited to no authority applying this section
to permit subpoena by a federal court for testimony
in a state felony trial, and certainly the statute on its
face does not appear to be designed for that purpose.2
The Uniform Act to secure the attendance of witnesses
from without a State, the availability of federal
writs of habeas corpus ad testificandum, and the established
practice of the United States Bureau of Prisons to
honor state writs of habeas corpus ad testificandum, all
supported the Court's conclusion in Barber that the State
had not met its obligations to make a good-faith effort to
obtain the presence of the witness merely by showing that
he was beyond the boundaries of the prosecuting State.
There have been, however, no corresponding developments
in the area of obtaining witnesses between this
country and foreign nations. Upon discovering that
Holm resided in a foreign nation, the State of Tennessee,
so far as this record shows, was powerless to compel his
attendance at the second trial, either through its own
process or through established procedures depending on
the voluntary assistance of another government. Cf.
People v. Trunnell, 19 Cal. App. 3d 567, 96 C'al. Rptr.
810 (1971). We therefore hold that the predicate of
unavailability was sufficiently stronger here than in
Barber that a federal habeas court was not warranted
2 Stubbs argues that the 1964 amendment to 28 U. S. C. § 1783,
authorizing a. subpoena to bring a witness "before a person or body
designatrd by" the District Court., sheds a different light on this
case. That amendment was not available to the Tennessee authorities
for Stubbs' 1964 trial, and therefore we have no occasion to decide
whether it would afford assistance to state authorities on the facts
represented by this case.
MANCUSI v. STUBBS 213
204 Opinion of the Court
in upsetting the determination of the state trial court
as to Holm's unavailability. Before it can be said that
Stubbs' constitutional right to confront witnesses was
not infringed, however, the adequacy of Holm's examination
at the first trial must be taken into consideration.
In addition to Barber v. Page, recent decisions of this
Court that have dealt at some length with the requirements
of the Confrontation Clause are California
v. Green, 399 U. S. 149 (1970), and Dutton v. Evans,
400 U. S. 74 (1970). The focus of the Court's concern
has been to insure that there "are indicia of reliability
which have been widely viewed as determinative of
whether a statement may be placed before the jury
though there is no confrontation of the declarant," Dutton
v. Evans, supra, at 89, and to "afford the trier of fact
a satisfactory basis for evaluating the truth of the prior
statement," California v. Green, supra, at 161. It is
clear from these statements, and from numerous prior decisions
of this Court, that even though the witness be
unavailable his prior testimony must bear some of these
"indicia of reliability" referred to in Dutton.
At least since the decision of this Court in Mattox v.
United States, 156 U. S. 237 (1895), prior-recorded testimony
has been admissible in appropriate cases. The
circumstances surrounding the giving of Alex Holm's
testimony at the 1954 trial were significantly more conducive
to an assurance of reliability than were those obtaining
in Barber v. Page, supra. The 1954 Tennessee
proceeding was a trial of a serious felony on the merits,
conducted in a court of record before a jury, rather than
before a magistrate.3 Stubbs was represented by coun-
3 The significant difference between the nature of examination at
a preliminary hearing and at a trial on the merits is discussed both
in Barber v. Page, 390 U.S. 719 (1968), and in l\fR. J usTwi; Bmrn-
NAN's dissenting opinion in Ca/,ifornia v. Green, 399 U. S. 149, 196-
199 (1970).
214 OCTOBER TERM, 1971
Opinion of the Court 408U. S.
sel who could and did effectively cross-examine prosecution
witnesses.
Stubbs urges that because the 1954 conviction was
itself overturned by a federal habeas court on a finding
of ineffective assistance of counsel, that court must
necessarily have concluded that the cross-examination
of Holm conducted by such counsel likewise fell short
of constitutional standards. The federal habeas judge
in Stubbs v. Bomar, supra, however, rested his determination
on an apparent per se rule of ineffective assistance
that was conclusively presumed from the short
interval between the time of counsel's appointment and
the date of the trial. If the habeas court had rendered
its decision after our holding in Chambers v. Maroney,
399 U. S. 42 ( 1970), which disapproved any such per se
rule, it might have addressed itself to the effectiveness
of the examination of the witness Holm. But it did
not in fact do so. When Stubbs appealed his 1964 conviction
to the Supreme Court of Tennessee, that court
in affirming the judgment expressly determined that the
prior cross-examination of Holm had been adequate.
Stubbs v. State, 216 Tenn. 567,393 S. W. 2d 150 (1965).
Whatever might be the case in other circumstances,
the State of New York was not bound under any theory
of res judicata by Stubbs v. Bomar as to the efficacy
of the prior cross-examination of the witness Holm.
Stubbs also contends that even though the prior determination
may not be binding upon subsequent review,
the fact that counsel was appointed only four
days before trial necessarily requires a finding that the
cross-examination of Holm was constitutionally inadequate.
Counsel for Stubbs at the 1964 trial placed in
the record a list of 12 questions not asked of Holm
in 1954, which he said he would have asked had the
witness been present at the second trial. With one
exception these were directed to the events leading up
to and surrounding the shooting. Though not asked
l' I
1 j . I
j
MANCUSI v. STUBBS 215
204 Opinion of the Court
in haec Verba in 1954, they were nonetheless adverted
to in the earlier cross-examination. No one defense
counsel will ever develop precisely the same lines of
inquiry or frame his questions in exactly the words of
another, but from this record counsel at the retrial did
not in his proffer show any new and significantly material
line of cross-examination that was not at least
touched upon in the first trial.
The Court of Appeals concluded that the crossexamination
had been inadequate. It reached this conclusion,
at least in part, because it felt that Holm could
have been questioned about whether Stubbs, although
originally having kidnaped the Holms at gunpoint,
later became in effect their guest. Parts of Stubbs'
own testimony presented that version of the events
to the jury, and the Second Circuit thought it significant
because even if Stubbs fired his pistol accidentally, he
might still have been found guilty of felony murder
unless the felony of kidnaping had ended. Under this
theory, if Stubbs had during the trip been transmogrified
from a kidnaper into a guest, at least the argument
to the jury as to whether the kidnaping had ended before
the shooting would have been strengthened by any
support Holm's testimony might have given to this
notion.
The Tennessee trial court, however, did not charge
that the jury could convict Stubbs of felony murder as
a result of a death occurring during a kidnaping. Its
charge authorized conviction upon a finding of premeditated
murder, or upon a finding of murder during
the commission of robbery.' The failure to elicit from
·• This was in accord with the Tennessee felony-murder statute
which provides:
"Every murder ... committed in the perpetration of, or attemrit
to perpetrate, any murder in the first degree, arson, rape, robbery,
burglary, or larceny, is murder in the first degree." Tenn. Code Ann.
§ 39-2402.
216 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 u. s.
Holm his own views as to whether Stubbs had become
a guest in the Holm car prior to the time that he turned
from the front seat, shot Mr. Holm, and killed Mrs.
Holm-however interesting they might have been to
hear-could not have prejudiced Stubbs' case as to any
issue that the jury was authorized to deliberate under
the trial judge's charge.
Since there was an adequate opportunity to crossexamine
Holm at the first trial, and counsel for Stubbs
availed himself of that opportunity, the transcript of
Holm's testimony in the first trial bore sufficient "indicia
of reliability" and afforded " 'the trier of fact a satisfactory
basis for evaluating the truth of the prior statement,'
" Dutton v. Evans, 400 U. S., at 89. The witness
Holm, consistently with the requirement of the Confrontation
Clause, could have been and was found by the trial
court to be unavailable at the time of the second trial.
There ,vas, therefore, no constitutional error in permitting
his prior-recorded testimony to be read to the jury at that
trial, and no constitutional infirmity in the judgment
of conviction resulting from that trial that would prevent
the l\ew York courts from considering that conviction
in sentencing Stubbs as a second offender. The
judgment of the Court of Appeals is therefore
Reversed.
MR. JusTICE MARSHALL, dissenting.
I
I would dismiss the vvrit in this case as improvidently
granted. The question presented to the courts below
concerns the constitutional validity of a 1964 Tennessee
conviction. The New York courts had relied
on that conviction to sentence respondent as a multiple
offender, after his conviction in 1966 for a New York
off ense. It was conceded at oral argument, however,
that New York has no present interest whatever in
MANCUSI v. STUBBS 217
204 MARSHALL, J., dissenting
that Tennessee conviction. For, after the United States
Court of Appeals held that it was constitutionally defective,
New York substituted for the Tennessee con-
VICt1on an earlier Texas conviction, and reinstated precisely
the same enhanced sentence it had previously
imposed.1
In determining that this case is nevertheless appropriate
for adjudication here, the Court seems to rely on
two separate factors. First, it reasons that the event
that seems to moot the case-the resentencing- was
merely the State's obedience to the adverse judgment
below, and for that reason cannot moot the controversy.
And, second, it reasolls that the resentencing may prove to
be defective as a matter of law, that New York may in
the future wish to rely on the Tennessee conviction
again, if the Texas conviction should prove to have
defects of its own.
The first proposition falls wide of the mark in this
case. It is well established that an unsuccessful litigant
does not moot his case by complying with an unfavorable
judgment pending the disposition of his appeal.
Thus, a debtor does not moot his case by paying the
judgment against him pendente lite. Dakota County
v. Glidden, 113 U. S. 222 (1885). And if a union is
enjoined from boycotting or striking at a particular store,
the union does not moot the case by lifting the boycott
or strike pendente lite. Bakery Drivers v. Wag-
1 Under the then-applicable New York sentencing statute, former
N. Y. Penal Law § 1941, one prior conviction was sufficient to
trigger the re<'idivist sE'ntenring provisions, and Stubbs received ilH'
maximum authorized recidivist sentence. New York has subsequently
amended its law to increase the maximum recidivist sentence,
and to provide that two prior convictions are necessary to
trigger the recidivist statute, N. Y. Penal Law § 70.10. The new
provisions do not, however, apply to this case, berause the underlying
New York conviction here was obtained before the effective date of
the new statute. N. Y. Penal Law § 5.05.
218 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 u. s.
shal, 333 U. S. 437 ( 1948). But that principle does
not protect the unsuccessful litigant who goes beyond
what is required of him, and obtains relief in some way
not prohibited by the judgment against him. Thus, the
debtor does moot his case by entering into a compromise
in settlement of the debt. Dakota County v. Glidden,
113 U. S., at 224-227. And the union might well moot
its case if all the striking employees left the store and
obtained other employment elsewhere.
This case would come within the principle of Dakota
County and Bakery Drivers, if New York had simply
abandoned, temporarily, its at.tempt to impose an enhanced
recidivist sentence, pending review of the judgment
below. But New York did more than merely
submit to the decision below; it found a complete substitute
for the result it had sought in the Court of
Appeals, and the result it continues to seek here." By
reversing the judgment below, this Court gives New
York no relief it has not already obtained.
The Court offers a second reason to disregard the resentencing
in this case, however, and that reason is
perhaps independent of the first. The Court argues
that the Texas conviction, and the resentencing based
on it, may be found invalid in other proceedings, in
which case New Yark may wish to revive its interest
in the Tennessee conviction. Thus, the argument rests
on the Court's estimate that the controversy that gave
2 The Court seeks to distinguish SEC v. Medical Committee, 404
U. S. 403 (1972), on the ground that in that case the action relied
on to moot the case was taken by a third party rather than by a
litigant. I can see no relevant difference, however, between the
action of a third party, and the action of a litigant which goes beyond
mere pendente lite compliance with the court order, so long
as that action gives the litigant the relief he seeks. If burning down
n building will moot a case, surely that is so whether the fire is set
by a. litigant or i~ lightning bolt, though the litigant may, of rourse,
be subject to sanctions quite apart from the case he has rendered
moot.
.\1ANCUSI v. STUBBS 219
204 MARSHALL, J., dissenting
nse to this litigation has a substantial probability of
recurring. That analysis might in my view carry considerable
weight, if it were applied uniformly in all
cases. But this Court has regularly refused to adjudicate
the claims of litigants who argue that illegal action
will probably harm the1n in the future. E. g., Socialist
Labor Party v. Gilligan, 406 U. S. 583 (1972); SEC v.
Medical Committee, 404 U. S. 403 (1972).3 Moreover,
in this case the Court can find that the controversy will
probably recur only by presuming that the Texas co~iviction
is probably invalid. Such a presumption flies in the
face of the principle that state convictions are ordinarily
presumed valid.·1 The Court betrays a surprising lack of
confidence in the criminal processes of our States, for
which there is no warrant in this record.
In these circumstances, the possibility that this controversy
will be revived is too remote and speculative
to keep the case alive under established precedents. It
is certainly too remote and speculative to warrant invoking
the discretionary certiorari jurisdiction of this
Court.
II
Because the Court reaches out to decide the merits of
this case, I think it appropriate to state my views on
that subject as well.
3 Indeed, the claim we rejected in SEC is closely analogous to the
claim here. In each case, events subsequent to the decision below
removed the occasion for present conflict between the parties, but
it was alleged that within a short time the conflict could be expected
to recur. In SEC, the Court found that allegation too speculative
to keep the controversy alive.
• Even when an appeal is pending, see, e. g., Bloch v. United
States, 226 F. 2d 185, 188 (CA9 1955), cert. denied, 350 U. S. 948
(1956); United States v. Empire Packing Co., 174 F. 2d 16, 20
(CA7), cert. denied, 337 U.S. 959 (1949); Proposed Rules of Evidence
for the United States District Courts § 609 (e) (1972), and
Advisory Committee's Note.
220 OCTOBER TERM, 1971
.\'IARSHALL, J., dissenting 408 U.S .
Respondent was convicted of murder in Tennessee
after a trial in which the principal prosecution witness,
one Alex Holm, did not appear. Instead, Holm's testimony
was introduced through a transcript of a previous
trial on the same charge. The State made absolutely
no effort to secure Holm's presence at the second trial,
relying wholly on the claim that Holm was unavailable
because he had become a resident of Sweden. The Court
today concludes that the State did not thereby deny
Stubbs his right "to be confronted with the witnesses
against him," guaranteed by the Sixth and Fourteenth
Amendments. To reach that result, the Court necessarily
distinguishes our holding in Barber v. Page, 390
U. S. 719 (1968), on untenable grounds, and utterly
ignores its rationale.
In Barber v. Page, the petitioner had been convicted
on the basis of testimony introduced through a transcript
of a preliminary hearing. The witness in question
was incarcerated in a federal prison. We held that
the State could not, consistent with constitutional requirements,
use that transcript in lieu of the witness
himself unless two conditions were met: (1) the witness
was shown to be actually unavailable to testify at
trial, and (2) the witness had been adequately confronted
and cross-examined at the prior hearing. In Barber we
concluded that neither condition had been met; the State
had failed to make a good-faith effort to secure the presence
of the witness at trial, and hence it could not be
said that the witness was unavailable; moreover, the preliminary
hearing did not afford an adequate pretrial
opportunity for confrontation and cross-examination.
The Court purports to apply the two-part test of
Barber to the facts of this case. It devotes considerable
space to the second part of the test, analyzing the opportunity
for confrontation and cross-examination of Holm
at the first trial of Stubbs, and concluding that the
MANCUSI v. STUBBS 221
204 MARSHALL, J., dissenting
opportunity there was significantly greater than at the
preliminary hearing in Barber. The Court's distinction
for this purpose between a preliminary hearing and
a prior trial is tenable, in my view, although on the
peculiar facts of this case the Court's conclusion is somewhat
troublesome. But the Court fails totally to explain
how the first part of the Barber test is satisfied
here. On that question, the Court has only this to
say: "the predicate of unavailability was sufficiently
stronger here than in Barber that a federal habeas court
was not warranted in upsetting the determination of
the state trial court as to Holm's unavailability."
The difficulty with that position is that there never
has been any factual inquiry resulting in a determination
as to Holm's unavailability. Rather, the courts
have consistently presumed his unavailability from the
bare fact that he lives in Sweden. The Tennessee Supreme
Court thought it was enough that Holm was out
of the jurisdiction of the United States, beyond the reach
of compulsory process, Stubbs v. State, 216 Tenn. 567,
574- 575, 393 S. W. 2d 150, 153- 154 (1965), as did the
dissenting judge in the Vnited States Court of Appeals,
442 F. 2d 561, 565 (1971). Apparently this Court takes
the same view. But in Barber v. Page we squarely rejected
any surh presumption of unavailability. In that
case, the claim was made that the court had no power
to compel the absent witness to appear. We held that
nevertheless the State was obliged to make a good-faith
effort to secure his appearance, for "'the possibility of a
refusal is not the equivalent of asking and receiving a
rebuff.' " 390 U. S .. at 724, quoting the decisioll below,
381 F. 2d 479, 481 (CAlO 1966) (Aldrich, J., dissenting).
As we said in Barber:
"In short, a ,vitness is not 'unavailable' for purposes
of the foregoing exception to the confrontation
requirement unless the prosecutorial authori222
OCTOBER TERM, 1971
MARSHALL, .T., dissenting 408 u. s.
ties have made a good-faith effort to obtain his
presence at trial." 390 U. S., at 724-725.
The Court seeks to distinguish Barber on the ground
that in that case the absent witness was a federal prisoner,
and while the State had no power to compel his
appearance, it could at least have sought the cooperation
of the federal prison authorities who did have such
power. Here, on the other harnl, the absent witness
was a resident of a foreign nation, and hence it is flrgued
that even federal authorities would have no power to
help. In support of that analysis, the Court seems to
place substantial reliance on the fact that at the time
of Stubbs' trial, the federal courts had statutory power
to subpoena American citizens living abroad, but that
power was apparently available only to compel their
appearance before federal courts. Act of June 25, 1948,
c. 646, 62 Stat. 949, 28 U. S. C. § 1783 (1958 ed.).
If the Court's decision today docs in fact rest on
the lack of federal power to compel the appearance
of Holm at a state trial, then the holding in this
case is of very limited significance. For less than three
months after the trial of Stubbs, Congress amended
§ 1783 to provide:
"A court of the United States may order the issuance
of a subpoena requiring the appearance as
a witness before it, or before a person or body designated
by it, of a national or resident of the United
States who is in a foreign country .... " Act of
Oct. 3, 1964, Pub. L. No. 88-619, § 10 (a), 78 Stat.
997 (emphasis added).
Since October 3, 1964, then, it appears that the federal
courts have had the power to assist state court.s in
securing the presence of witnesses like Alex Holm, and
hence for trials occurring since that date, Barber would
seem to control.
MANCUSI v. STUBBS 223
204 MARSHALL, J., dissenting
I cannot agree, however, that if neither state nor federal
authorities had the power to compel Holm's appearance,
that fact relieved the State of its obligation to
make a good-faith effort to secure his presence. It
simply reduced the likelihood that any effort would succeed.
The State's obligation would hardly be framed
in terms of "good-faith effort" if that effort were required
only in circumstances where success was guaranteed.
If, as the Court contends, it is more difficult to
produce at trial a resident of Sweden than a federal
prisoner, that fact might justify a failure to produce
the witness; it cannot justify a failure even to try.
At a minimum, the State could have notified Mr. Holm
that the trial was scheduled, and invited him to come
at his own expense. Beyond that, it could have offered
to pay his expenses. Finally, it could have sought federal
assistance in invoking the cooperation of Swedish
authorities, as a matter of international comity.
As in Barber, "so far as this record reveals, the sole
reason why [ the witness] was not present to testify
in person was because the State did not attempt to
seek his presence. The right of confrontation may not
be dispensed with so lightly." 390 U. S., at 725.
I respectfully dissent.
MR. JUSTICE DouGLAS joins in Part II of this opinion.
224 OCTOBER TERM, 1971
Per Curiam 408 U.S.
COMBS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 71-517. Argued April 11, 1972-Decided June 26, 1972
Petitioner was convicted of receiving, possessing, and roncealing
whiskey known by him to have been stolen from an interstate
shipment. Prior to his trial, the District Court had denied a
motion to suppress the whiskey from evidence on the contention
that there had been no showing of probable cause to support
issuance of the warrant authorizing the search for the whiskey.
The petitioner raised only the validity of the warrant on his
appeal, b11t the Court of Appeals held that he lacked standing
to <'hallenge the legality of the search, which had occurred on
his father's farm where petitioner was not living or pres<'nt at the
time of the search. Held: Since the Government 110w suggests
that the warrant was invalid, and since the record is inadequate
for a determination of whether petitioner had itn interest in the
searched premises that would afford him standing under Mancusi
v. DeForte, 392 U. S. 364, to challenge the legality of the search,
the judgment of the Court of Appeals is vacated and the case
remanded for further procei>dings.
446 F. 2d 515, vacated and remanded.
James N. Perry argued the cause for petitioner. With
him on the brief was William F. Hopkins.
William Bradford Reynolds argued the cause for the
United States. With him on the brief were Solicitor
General Griswold, Assistant Attorney General Petersen,
Beatrice Rosenberg, and Roger A. Pauley.
PER CumAM.
We granted certiorari on claims that evidence introduced
against petitioner was obtained through an unlawful
search that petitioner has standing to challenge. The
Govemment 110w suggests that the warrant authorizing
the search was invalid, but that further factual deterCOMBS
v. UNITED STATES 225
224 Per Curiam
minations are required to resolve the question of petitioner's
standing to challenge the admission in evidence
of the allegedly stolen goods seized ~by Government
agents.
Petitioner and his father were convicted after a joint
trial 1 under an indictment charging them with having
violated 18 U. S. C. § 659 " by receiving, possessing, and
concealing 26 cases of tax-paid whiskey known by them
to have been stolen from an interstate shipment. The
Government's evidence at trial tended to show that
petitioner delivered 40 cases of whiskey to the Newport,
Kentucky, home of a Mrs. Ballard, who had previously
expressed her willingness to buy it. The day after the
delivery, Mrs. Ballard, having sold some of the whiskey
but having thereafter heard that it was stolen property,
telephoned petitioner and told him to remove the remainder
of the whiskey from her home. Petitioner and
one Martin then moved the whiskey to the home of petitioner's
estranged wife; a few days later, however, petitioner
telephoned Martin and told him that "the heat
was on" and the whiskey would have to be moved once
again. The two men then transported the whiskey to
1 Both men were convicted, but petitioner's father did not appeal;
another codefendant at the trial was petitioner's brother, who was
acquitted on a related charge.
2 Section 659 provides as follows:
"Whoever ... unlawfully takes, carries away, or conceals, or by
fraud or deception obtains from any ... railroad car ... or other
vehicle, or from any ... station house, platform or depot ... with
intent to convert to his own use any goods or chattels moving as or
which are a part of ... an interstate or foreign shipment ... ; or
"Whoever buys or receives or has in his possession any such goods
or chattels, knowing the same to have been embezzled or stolen; ...
"Shall ... be fined not more than $5,000 or imprisoned not more
than ten years, or both .... "
226 OCTOBER TERM, 1971
Per Curiam 40h l ' . S.
Hazard, Kentucky, ·where they stored it in a shed on a
farm owned by petitioner's father .
Sometime later, l\1artin told an FBI agent of the stolen
whiskey; when the agent in turn passed the information
on to the Kentucky state police, the latter obtained a
warrant authorizing a search for, and seizure of, the
whiskey at the property of petitioner's father. The warrant
was supported by a11 affidavit, which the Government
now suggests \\'as insufficient under the holding of Aguilar
v. Texas, 378 U.S. 108 (1964). Armed with that warrant,
the state police went to the farm owned by petitioner's
father and conducted a search, which led to the
discovery and seizure of 26 cases of whiskey identified
as having been stolen from a raikoad shipment intended
for delivery to the Michigan Liquor Control Board.
Petitioner \Vas not living on his father's property, nor
was he preseut there when the search and seizure took
place.
Prior to trial, the def f'ndants jointly moved the District
Court to suppress the whiskey from evidence on
the ground that there was no showing of probable cause
to support the issuance of the warrant. The District
Court, following an evidentiary hearing,3 denied the motion
on the merits, and the evidence was subsequently
introduced at trial. Following the conviction of petitioner
and his father, only the petitioner appealed, raising
the single issue of the validity of the warrant; the Court
of Appeals did not reach the merits of his claim respecting
the warrant, however, holding only that he lacked
standing to challenge the legality of the sear<'h and
seizure. 446 F. 2d 515.
In concluding that petitioner lacked such standing, the
Court of Appeals noted, inter alia, that he had "asserted
3 No evidence relating to petitioner's standing was introduced at
the hearing.
COMBS v. UNITED STATES 227
224 Per Curiam
no possessory or proprietary claim to the searched premises"
during the course of the trial. 446 F. 2d, at 516.
Clearly, however, petitioner's failure to make any such
assertion, either at the trial or at the pretrial suppression
hearing, may well be explained by the related failure of
the Government to make any challenge in the District
Court to petitioner's standing to raise his Fourth Amendment
claim. In any event, the rrcord now before us is
virtually barren of the facts necessary to determine
whether petitioner had an interest in connection with
the searched premises that gave rise to "a reasonable
expectation [on his part] of freedom from governmental
intrusion" upon those premises. Mancusi v. DeForte,
392 1J. S. 364, 368 (1968).4 If petitioner can establish
facts showing such an interest, he will have demonstrated
a basis for standing to attack the search; re-examination
of the validity of the warrant in light of the Government's
present position on that issue would then be
4 The Court in Mancusi relied upon Jones v. United States, 362
U. S. 257 (1960), as ha\'ing done away with "the requirement that
to establish standing one must show legal possession or ownership
of the searched premises." 392 U. S., at 369. In Jones, the Conrt
held that the petitioner then before it had standing and enunciated
two rules as alternative grounds for its derision. First, the Jones
Court ruled that the "possession on the basis of which [ an accused]
is to be ... convirted suffices to give him standing under any fair
and rational conception of the requirements of Rule 41 (e)," Fed.
Rule Crim. Proc.; second, the Court ruled that "anyone legitimately
on premises where a search occur~" has standing to challenge the
legality of that search. 362 U. S., at 264, 267. The Government
has urged that we take the opportunity, said to be presented by the
instant case, to re-examine the first alternative holding of Jones.
Even assuming we were disposed to do so, the Court of Appeals did
not, in the opinion it filed in this case, deal with the question whether
the nature of the charge against petitioner brought his case within
the coverage of the first aspert of the Jones holding, and we decline
to reach or consider issues not yet passed on by that court.
228 OCTOBER TERM, 1971
Per Curiam 408 u. s.
appropriate to resolve the question whether evidence of
the seized whiskey was properly introduced at petitioner's
trial.
Since there has not yet been any factual determination
of whether petitioner had an interest in the searched
premises that was protectible under the doctrine of Mancusi
v. DeForte, we vacate the judgment of the Court of
Appeals and remand with directions that the case be sent
back to the District Court for further proceedings consistent
with this opinion.
Vacated and remanded.
MR. JUSTICE DOUGLAS concurs in the result.
KOIS v. WISCONSIN 229
Per Curiam
KOIS v. WISCONSIN
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF WISCONSIN
No. 71-5625. Decided June 26, 1972
Petitioner was convicted under an obscenity statute for publishing
in his underground newspaper pictures of nudes and a sex poem.
The State Supreme Court upheld the conviction as not violative
of the Fourteenth Amendment. Held: In the contc>xt in which
they appeared, the photographs were rationally related to a news
article, in conjunction with which they appeared, and were entitled
to l<'ourteenth Amendment. protection. In view of the
poem's content and placement with other porms inside the newspaper,
its dominant theme cannot be said to appeal to prurient
interest. Roth v. United States, 354 U. S. 476.
Certiorari granted; 51 Wis. 2d 668, 188 N. W. 2d 467, reversed.
PER CuRIAM.
Petitioner was convicted in the state trial court of violating
a Wisconsin statute prohibiting the dissemination
of "lewd, obscene or indecent written matter, picture,
sound recording, or film. " Wis. Stat. § 944.21 (1) (a)
(1969). He ,vas sentenced to consecutive one-year terms
in the Green Bay Reformatory and fined $1,000 on each
of tv.ro counts. The Supreme Court of Wisconsin upheld
his conviction against the contention that he had been
deprived of freedom of the press in violation of the Fourteenth
Amendment. 51 Wis. 2d 668, 188 N. W. 2d 467.
Petitioner was the publisher of an underground newspaper
called Kaleidoscope. In an issue published in
May 1968, that newspaper carried a story entitled "The
One Hundred Thousand Dollar Photos" on an interior
page. The story itself was an account of the arrest of
one of Kaleidoscope's photographers on a charge of pos230
OCTOBER TERM, 1971
Per Curiarn 408 U.S.
session of obscene material. Two relatively small pictures,
showing a nude man and nude woman embracing
in a sitting position, accompanied the article and were
described in the article as "similar" to those seized from
the photographer. The article said that the photographer,
while waiting in the district attorney's office, had
heard that bail might be set at $100,000. The article
went on to say that bail had in fact been set originally
at $100, then raised to $250, and that later the photographer
had been released on his own recognizance. The
article purported to detail police tactics that were described
as an effort to "harass" Kaleidoscope and its
staff.
Roth v. United States, 354 U. S. 476 (1957), held that
obscenity was not protected under the First or Fourteenth
Amendments. Material may be considered obscene
when "to the average person, applying contemporary
community standards, the dominant theme
of the material taken as a whole appeals to the prurient
interest." 354 U. S., at 489. In enunciating this test,
the Court in Roth quoted from Thornhill v. Alabama,
310 u. s. 88, 101-102:
"The freedom of speech and of the press guaranteed
by the Constitution embraces at the least the
liberty to discuss publicly and truthfully all matters
of public concern without previous restraint or fear
of subsequent punishment. The exigencies of the
colonial period and the efforts to secure freedom
from oppressive administration developed a broadened
conception of these liberties as adequate to
supply the public need for information and education
with respect to the significant issues of the
times . ... " (Emphasis supplied.)
We do not think it can fairly be said, either considering
the article as it appears or the record before the state
KOIS v. WISCONSIN 231
229 Per Curiam
court, that the article was a mere vehicle for the publication
of the pictures. A quotation from Voltaire in the
flyleaf of a book will not constitutionally redeem an
otherwise obscene publication, but if these pictures were
indeed similar to the one seized-and we do not understand
the State to contend differently-they are relevant
to the theme of the article. We find it unnecessary to
consider whether the State could constitutionally prohibit
the dissemination of the pictures by themselves,
because in the context in which they appeared in the
newspaper they were rationally related to an article that
itself \Vas clearly entitled to the protection of the Fourteenth
Amendment. Thornhill v. Alabama, supra. The
motion for leave to proceed in f orrna pauperis and the
petition for ,.,Tit of certiorari are granted. The conviction
on count one must therefore be reversed.
In its August 1968 issue, Kaleidoscope published a
two-page spread consisting of 11 poems, one of which
was entitled "Sex Poem." The second count of petitioner's
conviction was for the dissemination of the
newspaper containing this poem. The poem is an undisguisedly
frank, play-by-play account of the author's
recollection of sexual intercourse. But, as the Roth
Court emphasized, "sex and obscenity are not synonymous.
. . . The portrayal of sex, e. g., in art, literature
and scientific works, is not itself sufficient reason to deny
material the constitutional protection of freedom of
speech and press." 354 U. S., at 487. A reviewing court
must, of necessity, look at the context of the material, as
well as its content.
In this case, considering the poem's content and its
placement amid a selection of poems in the interior of
a newspaper, we believe that it bears some of the earmarks
of an attempt at serious art. While such earmarks
are not inevitably a guarantee against a finding
of obscenity, and while in this case many would conclude
232 OCTOBER TERM, 1971
DouGLAS, J., concurring in judgment 408 U.S.
that the author's reach exceeded his grasp, this element
must be considered in assessing whether or not the
''dominant" theme of the material appeals to prurient
interest. \Vhile "contemporary community standards,"
Roth v. United States, 354 U. S., at 489, must leave room
for some latitude of j udgment, and while there is an undeniably
subjective element in the test as a whole, the
"dominance" of the theme is a question of constitutional
fact. Giving due weight and respect to the conclusions
of the trial court and to the Supreme Court of Wisconsin,
we do not believe that it can be said that the dominant
theme of this poem appeals to prurient interest. The
judgment on the second count, therefore, must also be
reversed.
Reversed.
MR. JUSTICE STEWART concurs in the judgment.
MR. JUSTICE DouGLAS, concurring in the judgment.
I concur in the judgment because neither logic, history,
nor the plain meaning of the English language will support
the obscenity exception this Court has engrafted
onto the First Amendment.
This case, moreover, is further testimony to the morass
in which this Court has placed itself in the area of
obscenity. Men are sent to prison under definitions
which they cannot understand, and on which lower courts
and members of this Court cannot agree. Here, the
Court is forced to examine the thematic content of the
two newspapers for the publication of which petitioner
was prosecuted in order to hold that they are constitutionally
protected. Highly subjective inquiries such as
this do not lend themselves to a workable or predictable
rule of law, nor should they be the basis of fines or
imprisonment.
In this case, the vague umbrella of obscenity laws was
used in an attempt to run a radical newspaper out of
KOIS v. WISCONSIN 233
229 DouGLAti, J., conrurring in judgment
business and to impose a two-year sentence and a $2,000
fine upon its publisher. If obscenity laws continue in
this uneven and uncertain enforcement, then the vehicle
has been found for the suppression of any unpopular
tract. The guarantee of free expression will thus be
diluted and in its stead public discourse will only embrace
that which has the approval of five members of this Court.
The prospect is not imaginary now that the Bill of
Rights, applicable to the States by reason of the Fourteenth
Amendment, is coming to be a "watered down"
version, meaning not what it says but only what a majority
of this Court thinks fit and proper.
234 OCTOBER TERM, 1971
Per Curiam 408 U.S.
BEECHER v. ALABAMA
ON PETITION FOR WRIT OF CERTIORARI TO THE SGPREME
COURT OF ALABAMA
No. 71-6497. Decided June 26, 1972
After this Court reversed petitioner's 1964 murder conviction on
the ground that written confessions used as evidence in his trial
were involuntary as the products of gross coercion and thus violated
due process, petitioner was reindictcd, retried, and convicted
after an oral confe.ssion had been admitted into evidence. That
confession had been made to a. hospital doctor one hour after
petitioner's arrest while he was in extreme pain from a gunshot
wound and under the influence of morphine. Held: Petitioner's
oral confession was also invalid, having been the product of gross
coercion and part of the same "stream of events" that necessitated
invalidation of the written confessions.
Certiorari granted; 288 Ala. 1, 256 So. 2d 154, reversed.
PER CuRIAM.
In 1964 the petitioner was tried and convicted in an
Alabama state court for first-degree murder. He was
sentenced to death. The conviction was based in large
part on written confessions that he had signed five days
after his arrest. The petitioner objected to the introduction
at trial of these confessions. Rut the trial
court and the Alabama Supreme Court held that the
confessions were made voluntarily and were properly
received into evidence.
In 1967 this Court summarily reversed that judgment
of the Alabama Supreme Court. Beecher v. Alabama,
389 U. S. 35. We said:
"The uncontradicted facts of record are these.
Tennessee police officers saw the petitioner as he
fled into an open field and fired a bullet into his
right leg. He fell, and the local Chief of Police
pressed a loaded gun to his face while another of234
BEECHER v. ALABA11A 235
Per Curiam
fleer pointed a rifle against the side of his head.
The Police Chief asked him whether he had raped
and killed a white woman. When he said that he
had not, the Chief called him a liar and said, 'If you
don't tell the truth I am going to kill you.' The
other officer then fired his rifle next to the petitioner's
ear, and the petitioner immediately confessed.
Later the same day he received an injection
to ease the pain in his leg. He signed something
the Chief of Police described as 'extradition papers'
after the officers told him that 'it would be best ...
to sign the papers before the gang of people came
there and killed' him. He was then taken by ambulance
from Tennessee to Kilby Prison in Montgomery,
Alabama. By June 22, the petitioner's right
leg, which was later amputated, had become so
swollen and his wound so painful that he required
an injection of morphine every four hours. Less
than an hour after one of these injections, two Alabama
investigators visited him in the prison hospital.
The medical assistant in charge told the
petitioner to 'cooperate' and, in the petitioner's
presence, he asked the investigators to inform him
if the petitioner did not 'tell them what they wanted
to know.' The medical assistant then left the petitioner
alone with the State's investigators. In the
course of a 90-minute 'conversation,' the investigators
prepared two detailed statements similar to
the confession the petitioner had given five days
earlier at gunpoint in Tennessee. Still in a 'kind
of slumber' from his last morphine injection, feverish,
and in intense pain, the petitioner signed the
written confessions thus prepared for him." Id.,
at 36- 37.
We were led to "the inescapable conclusion that the
petitioner's confessions were involuntary.'' Id., at 38.
236 OCTOBER TERM, 1971
Per Curiam 408 U.S.
For "[t]he petitioner, already wounded by the police,
was ordered at gunpoint to speak his guilt or be killed.
From that time until he was directed five days 1ater
to tell Alabama investigators 'what they wanted to know,'
there was 'no break in the stream of events,' Clewis v.
Texas, 386 U. S. 707, 710. For he was then still in pain,
under the influence of drugs, and at the complete mercy
of the prison hospital authorities." Ibid. Because the
confessions "were the product of gross coercion," we
held that their use at the petitioner's trial violated the
Due Process Clause of the Fourteenth Amendment.
Ibid.
Only three months after this Court's decision, the petitioner
was reindicted and retried for the same crime.
Again, a confession was introduced in evidence. Again,
it was a confession made by the petitioner shortly after
he had been shot and arrested and shortly after he had
been given a large dose of morphine. Again, the petitioner
was convicted and sentenced to death.
The confession used at the second trial was not exactly
the same as the ones that had been used against the petitioner
at his first trial. It was not one of the written
confessions made by the petitioner in an Alabama hospital
five days after his arrest. Instead, it was an oral
confession that the petitioner had made in a Tennessee
hospital only one hour after his arrest.
One hour after the arrest, in extreme pain from the
gunshot that had blown most of the bone out of one
leg, the petitioner was brought by police to a Tennessee
hospital. There, a doctor gave him two large injections
of morphine. The petitioner testified that the
morphine "kinda made me feel like I wanted to love
somebody; took the pain away; made me feel relaxed."
From then on, the petitioner said, he could remember
nothing. But the doctor testified at trial that he had
asked the petitioner "why he did it [the crime]." AcBEECHER
v. ALABAMA 237
234 Per Curiam
cording to the doctor, the petitioner then made an oral
confession. Although police were in the area guarding
the petitioner, the confession was made only to the
doctor.
The Alabama Supreme Court held that this oral confession
was made voluntarily and was admi&'lible in
evidence against the petitioner. Beecher v. State, 288
Ala. 1, 256 So. 2d 154. We do not agree. We held five
years ago that the confession elicited from the petitioner
at the scene of his arrest was plainly involuntary.* We
also held that his written confessions five days later, while
in custody and under the influence of morphine, were
part of the "stream of events" beginning with the arrest
and were infected with "gross coercion." 389 U. S., at
38. The oral confession, made only an hour after the
arrest and upon which the State now relies, was surely
a part of the same "stream of events."
We hold now-as we held before--that a "realistic
appraisal of the circumstances of thi,s case compels the
conclusion that this petitioner's [confession was] the
product of gross coercion. Under the Due Process
Clause of the Fourteenth Amendment, no conviction
tainted by a confession so obtained can stand." Ibid.
Accordingly, the motion for leave to proceed in forma
pauperi,s and the petition for certiorari are granted. The
judgment is
Rever.5ed.
*Although at the second trial the Chief of Police who arrested
the petitioner denied having made an explicit threat to kill him
if he did not confess at that time, the fact that the petit,ioner was
surrounded by a very angry mob and that police were holding guns
on him and even fired one shot by his head is enough to support
our original conclusion as to the grossly coercive nature of the
police questioning at the scene of the arrest,
238 OCTOBER TERM, 1971
Syllabus 408U. S.
FURMAN v. GEORGIA
CERTIORARI TO THE SUPREME COURT OF GEORGIA
No. 69-500a. Argued January 17, 1972-Drcidcd June 29, 1972"'
Imposit.ion and carrying out of death penalty in these cases held
to constitute cruel and unusual punishment in violation of Eighth
a.nd Fourteenth Amendments.
No. 69-5003, 225 Ga. 253, 167 S. E. 2d 628; No. 69-5030, 225 Ga.
790, 171 S. E. 2d 501; No. 69-5031, 447 S. W. 2d 932, reversed
and remanded.
Anthony G. Amsterdam argued the cause for petitioner
in No. 69-5003. With him on the brief were
B. Clarence Mayfield, Michael Meltsner, Jack Greenberg,
James M. Nabrit III, Jack Himmelstein, and Elizabeth
B. DuBois. Mr. Greenberg argued the cause for petitioner
in No. 69-5030. With him on the brief were
Messrs. Meltsner, Amsterdam, Nabrit, Himmelstein, and
Mrs. DuBois. Melvyn Carson Bruder argued the cause
and filed a brief for petitioner in No. 69-5031.
Dorothy T. Beasley, Assistant Attorney General of
Georgia, argued the cause for respondent in Nos. 69-
5003 and 69-5030. With her on the briefs were Arthur
K. Bolton, Attorney General, Harold N. Hill, Jr., Executive
Assistant Attorney General, Courtney Wilder Stanton,
Assistant Attorney General, and Andrew J. Ryan,
Jr. Charles Alan Wright argued the cause for respondent
in No. 691--5031. With him on the brief were Crawford
C. Martin, Attorney General of Texas, Nola White,
First Assistant Attorney General, Alfred Walker, Executive
Assistant Attorney General, and Robert C. Flowers
and Glenn R. Brown, Assistant Attorneys General.
*Together with No. 69-5030, Jackson v. Georgia, on cntiorari to
the same court, and No. 69-S031, Branch v. Texas, on certiora.ri to
the Court of Criminal Appeals of Texas.
FURMAN v. GEORGIA 239
238 Per Curiam
Theodore L. Sendak, Attorney General, and David 0.
Givens, Deputy Attorney General, filed a brief for the
State of Indiana as amicus curiae urging affirmance in
No. 69-5003. Paul Raymond Stone filed a brief for the
West Virginia Council of Churches et al. as amici curiae
urging reversal in Nos. 69-5003 and 69-5030. John E.
Havelock, Attorney General, filed a brief for the State of
Alaska as amicus curiae in Nos. 69-5003 and 69-5030.
Briefs of amici curiae in all three cases were filed by
Gerald H. Gottlieb, Melvin L. Wulf, and Sanford Jay
Rosen for the American Civil Liberties Union; by Leo
Pfeffer for the Synagogue Council of America et al.;
by Chauncey Eskridge, Mario G. Obledo, Leroy D. Clark,
Nathaniel R. Jones, and Vernon Jordan for the National
Association for the Advancement of Colored People
et al.; by Michael V. DiSalle for Edmund G. Bwwn
et al.; and by Hilbert P. Zarky and Marc I. Hayutin for
James V. Bennett et al.
PER CuRIAM.
Petitioner in No. 69-5003 was convicted of murder in
Georgia and was sentenced to death pursuant to Ga. Code
Ann. § 26-1005 (Supp. 1971) (effective prior to July 1,
1969). 225 Ga. 253, 167 S. E. 2d 628 (1969). Petitioner
in No. 69-5030 was convicted of rape in Georgia and was
sentenced to death pursuant to Ga. Code Ann. § 26-1302
(Supp. 1971) (effective prior to July 1, 1969). 225 Ga.
790, 171 S. E. 2d 501 (1969). Petitioner in No. 69-5031
was convicted of rape in Texas and was sentenced to
death pursuant to Tex. Penal Code, Art. 1189 ( 1961).
447 S. W. 2d 932 (Ct. Crim. App. 1969). Certiorari
was granted limited to the following question: "Does the
imposition and carrying out of the death penalty in
[ these cases] constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments?"
403 U.S. 952 (1971). The Court holds that the imposi240
OCTOBER TERM, 1971
DouGLAS, J., concurring 408 U.S.
tion and carrying out of the death penalty in these cases
constitute cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments. The judgment
in each case is therefore reversed insofar as it leaves undisturbed
the death sentence imposed, and the cases are
remanded for further proceedings.
So ordered.
MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR.
JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE
:MARSHALL have filed separate opinions in support of the
judgments. THE CHIEF JusTICE, MR. JUSTICE BLACKMUN,
MR. JusTICE POWELL, and MR. JusTICE REHNQUIST
have filed separate dissenting opinions.
MR. JUSTICE DouGLAS, concurring.
In these three cases the death penalty was imposed,
one of them for murder, and two for rape. In each
the determination of whether the penalty should be
death or a lighter punishment was left by the State to
the discretion of the judge or of the jury. In each of the
three cases the trial was to a jury. They are here on petitions
for certiorari which we granted limited to the question
whether the imposition and execution of the
death penalty constitute "cruel and unusual punishment"
within the meaning of the Eighth Amendment as applied
to the States by the Fourteenth.' I vote to vacate each
judgment, believing that the exaction of the death penalty
does violate the Eighth and Fourteenth Amendments.
1 The opinion of the Supreme Court of Georgia affirming Furman's
conviction of murder and sentence of death is reported in 225 Ga.
253, 167 S. E. 2d 628, and its opinion affirming .Jackson's conviction
of rape and sentence of death is reported in 225 Ga. 790, 171
S. E. 2d 501. The convJCtion of Branch of rape and the sentence of
death were affirmed by the Court of Criminal Appeals of Texa8 and
reported in 447 S. W. 2d 932.
FURMAN v. GEORGIA 241
238 DOUGLAS, J., concurring
That the requirements of due process ban cruel and
unusual punishment is now settled. Louisiana ex reL
Franc-is v. Resweber, 329 U. S. 459, 463, and 473-474
(Burton, J., dissenting); Robinson v. California, 370
U. S. 660, 667. It is also settled that the proscription
of cruel and unusual punishments forbids the judicial
imposition of them as well as their imposition by the
legislature. Weems v. United States, 217 U. S. 349,
378--382.
Congressman Bingham, in proposing the Fourteenth
Amendment, maintained that "the privileges or immunities
of citizens of the United States" as protected by
the Fourteenth Amendment included protection against
"cruel and unusual punishments:"
"[M] any instances of State injustice and oppression
have already occurred in the State legislation
of this Union, of flagrant violations of the guarantied
privileges of citizens of the United States, for
which the national Government furnished and could
furnish by law no remedy whatever. Contrary to
the express letter of your Constitution, 'cruel and
unusual punishments' have been inflicted under
State laws within this Union upon citizens, not only
for crimes committed, but for sacred duty done, for
which and against which the Government of the
United States had provided no remedy and could
provide none." Cong. Globe, 39th Cong., 1st Sess.,
2542.
Whether the privileges and immunities route is followed,
or the due process route, the result is the same.
It has been assumed in our decisions that punishment
by death is not cruel, unless the manner of execution
can be said to be inhuman and barbarous. In re Kemmler,
136 U. S. 436, 447. It is also said in our opinions
242 OCTOBER TERM, 1971
DOUGLAS, J., concurring 408 U.S.
that the proscription of cruel and unusual punishments
"is not fastened to the obsolete but may acquire meaning
as public opinion becomes enlightened by a humane
justice." Weems v. United States, supra, at 378. A
like statement was made in Trop v. Dulles, 356 U. S.
86, 101, that the Eighth Amendment "must draw its
meaning from the evolving standards of decency that
mark the progress of a maturing society."
The generality of a law inflicting capital punishment
is one thing. What may be said of the validity
of a law on the books and what may be done with the
law in its application do, or may, lead to quite different
conclusions.
It would seem to be incontestable that the death
penalty inflicted on one defendant is "unusual" if it
discriminates against him by reason of his race, religion,
wealth, social position, or class, or if it is imposed under a
procedure that gives room for the play of such prejudices.
There is evidence that the provision of the English
Bill of Rights of 1689, from which the language of the
Eighth Amendment was taken, was concerned primarily
with selective or irregular application of harsh penalties
and that its aim was to forbid arbitrary and discriminatory
penalties of a 1cevere nature: 2
"Following the Norman conquest of England in
1066, the old system of penalties, which ensured
equality between crime and punishment, suddenly
disappeared. By the time systematic judicial records
were kept, its demise was almost complete.
With the exception of certain grave crimes for
which the punishment was death or outlawry, the
arbitrary fine was replaced by a discretionary
2 Granucci, "Nor Cruel and Unusual Punishments InnirtC'd: " The
Original Meaning, 57 Calif. L. Rev. 839, 845-846 (1969).
238
FURMAN v. GEORGIA 243
DOUGLAS, J., concurring
amercement. Although amercement's discretionary
character allowed the circumstances of each case
to be taken into account and the level of cash
penalties to be decreased or increased accordingly,
the amercement presented an opportunity for excessive
or oppressive fines.
"The problem of excessive amercements became
so prevalent that three chapters of the Magna
Carta were devoted to their regulation. Maitland
said of Chapter 14 that 'very likely there was no
clause in the Magna Carta more grateful to the
mass of the people.' Chapter 14 clearly stipulated
as fundamental law a prohibition of excessiveness
in punishments:
"'A free man shall not be amerced for a trivial
offence, except in accordance with the degree of
the offence; and for a serious offence he shall be
amerced according to its gravity, saving his livelihood;
and a merchant likewise, saving his merchandise;
in the same way a villein shall be amerced
saving his wainage; if they fall into our mercy.
And none of the aforesaid amercements shall be
imposed except by the testimony of reputable men
of the neighborhood.'"
The English Bill of Rights, enacted December 16, 1689,
stated that "excessive bail ought not to be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted." 3 These were the words chosen for
our Eighth Amendment. A like provision had been in
Virginia's Constitution of 1776 4 and in the constitutions
3 1 W. & M., Sess. 2, c. 2; 8 English Historical Documents, 1660-
1714, p. 122 (A. Browning ed. 1953).
4 7 F. Thorpe, Federal & State Constitutions 3813 (1909).
244 OCTOBER TERM, 1971
DoUGLAS, J., concurring 408 U.S.
of seven other States." The Northwest Ordinance, enacted
under the Articles of Confederation, included a prohibition
of cruel and unusual punishments.6 But the
debates of the First Congress on the Bill of Rights throw
little light on its intended meaning. All that appears is
the following: '
"Mr. SMITH, of South Carolina, objected to the
words 'nor cruel and unusual punishments;' the
import of them being too indefinite.
"Mr. LIVERMORE: The clause seems to express
a great deal of humanity, on which account I have
no objection to it; but as it seems to have no
meaning in it, I do not think it necessary. What
is meant by the terms excessive bail? Who are
to be the judges? What is understood by excessive
fines? It lies with the court to determine. No
cruel and unusual punishment is to be inflicted;
it is sometimes necessary to hang a man, villains
often deserve whipping, and perhaps having their
ears cut off; but are we in future to be prevented
from inflicting these punishments because they are
cruel? If a more lenient mode of correcting vice
and deterring others from the commission of it
could be invented, it would be very prudent in the
Legislature to adopt it; but until we have some security
that this will be done, we ought not to be
restrained from making necessary laws by any declaration
of this kind."
The words "cruel and unusual" certainly include pen-
5 Delaware, Maryland, ::,..rew Hampshire, North Carolina, Massachusetts,
PC'nnsylvania, and South Carolina. 1 Thorp<', supra, n. 4,
at 569; 3 id., at 1688, 1892; 4 id., at 2457; 5 id., at 2788, 3101; 6 id.,
at 3264.
"SC't out in 1 U. S. C. xxxrx-xu.
7 1 Annals of Cong. 7 54 ( 1789).
FURMAN v. GEORGIA 245
238 DoUGLAS, J., concurring
alties that are barbaric. But the words, at least when
read in light of the English proscription against selective
and irregular use of penalties, suggest that it is
"cruel and unusual" to apply the death penalty-or
any other penalty-selectively to minorities whose numbers
are few, who are outcasts of society, and who are
unpopular, but whom society is willing to see suffer
though it would not countenance general application
of the same penalty across the board.8 Judge Tuttle,
indeed, made abundantly clear in Novak v. Beto, 453 F.
2d 661, 673-679 (CA5) (concurring in part and dissenting
in part), that solitary confinement may at times be "cruel
and unusual" punishment. Cf. Ex parte Medley, 134
U. S. 160; Brooks v. Florida, 389 U. S. 413.
The Court in McGautha v. California, 402 U. S. 183,
198, noted that in this country there was almost from
the beginning a "rebellion against the common-law rule
imposing a mandatory death sentence on all convicted
8 "When in respect of any class of offenses the difficulty of obtaining
convictions is at all general in England, we may hold it
as an axiom, that the law requires amendment. Such conduct in
juries is the silent protest of the people against its undue severity.
This was strongly exemplified in the case of prosecutions for the
forgery of bank-notes, when it was a capital felony. It was in vain
that the charge was proved. Juries would not condemn men to
the gallows for an offense of which the punishment was out of all
proportion to the crime; and as they could not mitigate the sentence
they brought in verdicts of Not Guilty. The consequence was, that
the law was changed; and when secondary punishments were substituted
for the penalty of death, a forger had no better chance of
an acquittal than any other criminal. Thus it is that the power
which juries possess of refusing to put the law in force has, in the
words of Lord John Russell, 'been the cause of amending many bad
laws which the judges would have administered with professional
bigotry, and above all, it has this important and useful consequence,
that laws totally repugnant to the feelings of the community for
which they are made, can not long prevail in England.'" W. Forsyth,
History of Trial by Jury 367-368 (2d ed. 1971).
246 OCTOBER TERM, 1971
DouGLAS, J., concurring 408 U.S.
murderers." The first attempted remedy was to restrict
the death penalty to defined offenses such as
"premeditated" murder.° Ibid. But juries "took the
9 This trend was not universally applauded. In the early 1800's,
England had a law that made it possible to impose the death
sentence for stealing five shillings or more. 3 W. & M., c. 9,
§ 1. When a bill for abolishing that penalty (finally enacted in
1827, 7 & 8 Geo. 4, c. 27) was before the House of Lords in 1813,
Lord Ellen borough said:
"If your Lordships look to the particular measure now under
consideration, can it, I ask, be seriously maintained, that the most
exemplary punishment, and the best suited to prevent the commission
of this crime, ought not to be a punishment which might
in some cases be inflicted? How, but by the enactments of the
law now sought to be repealed, are the cottages of industrious
poverty protected? What other security has a poor peasant, when
he and his wife leave their home for their daily labours, that on
their return their few articles of furniture or of clothes which they
possess besides those which they carry on their backs, will be
safe? . . . [B]y the enacting of the punishment of death, and leaving
it to the discretion of the Crown to inflict that punishment
or not, as the circumstances of the case may require, I am satisfied,
and I am much mistaken if your Lordships are not satisfied, that
this object is attained with the least possible expenditure. That
the law is, as it has been termed, a bloody law, I can by no means
admit. Can there be a better test than by a consideration of the
number of persons who have been executed for offences of the
description contained in the present Bill? Your Lordships are
told, what is extremely true, that this number is very small; and
this very circumstance is urged as a reason for a repeal of the
law; but, before your Lordships are induced to consent to such
repeal, I beg to call to your consideration the number of innocent
persons who might have been plundered of their property or
destroyed by midnight murderers, if the Jaw now sought to be
repealed had not been in existence:-a law upon which all the
reta.il trade of this commercial country depends; and which I for
one will not consent to be put in jeopardy." Debate in Honse of
Lords, Apr. 2, 181~, pp. 23-24 (Longman, Hurst, Rees, Orme, &
Brown, Paternoster-Row, London 1816).
FURMAN v. GEORGIA 247
238 DoucLAs, J., concurring
law into their own hands" and refused to convict on
the capital offense. Id., at 199.
"In order to meet the problem of jury nullification,
legislatures did not try, as before, to refine further
the definition of capital homicides. Instead they
adopted the method of forthrightly granting juries
the discretion which they had been exercising in
fact." Ibid.
The Court concluded: "In light of history, experience,
and the present limitations of human knowledge, we
find it quite impossible to say that committing to the
untrammeled discretion of the jury the power to pronounce
life or death in capital cases is offensive to anything
in the Constitution." Id., at 207.
The Court refused to find constitutional dimensions
in the argument that those who exercise their discretion
to send a person to death should be given standards
by which that discretion should be exercised. I d.,
at 207-208.
A recent witness at the Hearings before Subcommittee
No. 3 of the House Committee on the Judiciary, 92d
Cong., 2d Sess., Ernest van den Haag, testifying on H. R.
8414 et al.,10 stated:
"Any penalty, a fine, imprisonment or the death
penalty could be unfairly or unjustly applied. The
10 H. R. 3243, 92d Cong., 1st Sess., introduced by Conir. Celler,
would abolish all executions by the United States or by any State.
H. R. 8414, 92d Cong., 1st Sess., introduced by Cong. Ct>ller, would
provide an interim stay of all executions by the United States
or by any State and contains the following proposed finding:
"Congress hereby finds that there exists serious question-
" (a) whether the infliction of the death penalty amounts to cruel
and unusual punishment in violation of the eighth and fourteenth
amendents to the Constitution; and
"(b) whether the death penalty is inflicted discriminatorily upon
248 OCTOBER TERM, 1971
DOUGLAS, J., concurring 408U.S.
vice m this case is not in the penalty but in the
process by which it is inflicted. It is unfair to inflict
unequal penalties on equally guilty parties, or
on any innocent parties, regardless of what the penalty
is." Id., at 116-117. (Emphasis supplied.)
But those who advance that argument overlook
Jf cGautha, supra.
We are now imprisoned in the M cGautha holding.
Indeed the seeds of the present cases are in M cGautha.
Juries (or judges, as the case may be) have practically
untrammeled discretion to let an accused live or insist
that he die.11
members of racial minorities, in violation of the fourteenth amendment
to the Constitution,
"and, in either case, whether Congress should exercise its authority
under section 5 of the fourtf'f'nth amendment to prohibit the use of
the death penalty."
There is the naive view that capital punishment as "meted out in
our courts, is the antithesis of barbarism." See Henry Paolucci,
New York Times, May 27, 1972, p. 29, col. 1. But the Leopolds and
Loebs, the Harry Thaws, the Dr. Sheppards and the Dr. Finchs
of our society are never executed, only those in the lower strata,
only those who are members of an unpopular minority or the poor
and despised.
11 The tension between our decision today and McGautha highlights,
in my view, the correctness of l\fo. JUSTICE BRENNAN'S dissent
in that case, which I joined. 402 U. S., at 248. I should think
that if the Eighth and Fourteenth Amendments prohibit the imposition
of the death penalty on petitioners because they are "among
a capriciously selected random handful upon whom the sentence of
death has in fact been imposed," opinion of :.\'IR. JUSTICE STEWAR1',
post, at 309-310, or because "there is no meaningful basis for distinguishing
the few <•asc.;; in which [the death penalty] is imposed from
the many case5 in which it is not," opinion of MR. JUSTICE WHITE,
post, at 313, statc:>ments with which I am in complete agreement-then
the Due Process Clause of the Fourteenth Amendment would render
unconstitutional "capital sentencing procedures that are purposely
FURMAN v. GEORGIA 249
238 DoUGLAS, J., concurring
Mr. Justice Field, dissenting in O'Neil v. Vermont,
144 U. S. 323, 340, said, "The State may, indeed, make
the drinking of one drop of liquor an offence to be punished
by imprisonment, but it would be an unheard-of
cruelty if it should count the drops in a single glass
and make thereby a thousand offences, and thus extend
the punishment for drinking the single glass of liquor
to an imprisonment of almost indefinite duration."
What the legislature may not do for all classes uniformly
and systematically, a judge or jury may not do for a
class that prejudice sets apart from the community.
There is increasing recognition of the fact that the
basic theme of equal protection is implicit in "cruel
and unusual" punishments. "A penalty . . . should
be considered 'unusually' imposed if it is administered
arbitrarily or discriminatorily.'' 12 The same authors add
that " [ t] he extreme rarity with which applicable death
penalty provisions are put to use raises a strong inference
of arbitrariness." 13 The President's Commission
on Law Enforcement and Administration of Justice
recently concluded: 14
"Finally there is evidence that the imposition of
the death sentence and the exercise of dispensing
power by the courts and the executive follow discriminatory
patterns. The death sentence is disproportionately
imposed and carried out on the
constructed to allow the maximum possible variation from one case
to· the next., and [that] provide no mechanism to prevent that
consciously maximized variation from reflecting merely random or
arbitrary choice." McGautha v. California, 402 U. S. 183, 248
(BRENNAN, J., dissenting).
12 Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional,
83 Harv. L. Rev. 1773, 1790.
13 Id., at 1792.
14 The Challenge of Crime in a Free Society 143 (1967).
250 OCTOBER TERM, 1971
DouGLAS, J., concurring 408U.S.
poor, the Negro, and the members of unpopular
groups."
A study of capital cases m Texas from 1924 to 1968
reached the following conclusions: 15
"Application of the death penalty is unequal:
most of those executed were poor, young, and
ignorant.
15 Koeninger, Capital Punishmrnt in Texas, 1924-1968, 15 Crime
& Delin. 132, 141 (1969).
In H. Bedau, The Death Penalty in America 474 (1967 rev. ed.),
it is stated:
RACE OF THE OFFENDER BY FINAL DISPOSITION
Final Negro White Total
Disposition N % N % N %
Executed 130 88.4 210 79.8 340 82.9
Commuted 17 11.6 53 20.2 70 17.1
Total 147 100.0 263 100.0 410 100.0
X2= 4.33; P less than .05. (For disrussion of statistical symbols, see
Bcdau, supra, at 469.)
"Although there may be a host of factors other than rncc involved
in this frequency distribution, something more than chance
has operated over the years to pl'oduce this racial difference. On the
basis of this study it is not possible to indict the judicial and other
public processes prior to the death row as responsible for the association
between Negroes and higher frequency of executions; nor is it
entirely correct to assume that from the time of their appearance on
death row Negroes are discriminated against by the Pardon Board.
Too many unknown or presently immeasurable factors prevent our
making definitive statements about the relationship. Nevertheless,
because the Negro/ high-execution association is statistically present,
some suspicion of racial discrimination can hardly be avoided. If
such a relationship had not appeared, this kind of suspicion could
have been allayed; the existence of the relationship, although not
·proving' differential bias by the Pardon Boards over the years since
1914, strongly suggests that such bias has existed."
The latter was a study in Pennsylvania of people on death row between
1914 and 1958, made by Wolfgang, Kelly, & Nolde and printed
238
FURMAN v. GEORGIA 251
DOUGLAS, ,J., concurring
"Seventy-five of the 460 cases involved codefendants,
who, under Texas law, were given separate
trials. In several instances where a white and
a Negro were co-defendants, the white was sentenced
to life imprisonment or a term of years, and
the Negro was given the death penalty.
"Another ethnic disparity is found in the type
of sentence imposed for rape. The Negro convicted
of rape is far more likely to get the death penalty
than a term sentence, whereas whites and Latins
are far more likely to get a term sentence than
the death penalty."
Warden Lewis B. Lawes of Sing Sing said: 10
"Not only does capital punishment fail in its
justification, but no punishment could be invented
with so many inherent defects. It is an unequal
punishment in the way it is applied to the rich
and to the poor. The defendant of wealth and
position never goes to the electric chair or to the
gallows. Juries do not intentionally favour the
rich, the law is theoretically impartial, but the defendant
with ample means is able to have his case
presented with every favourable aspect, while the
poor defendant often has a lawyer assigned by the
court. Sometimes such assignment is considered
part of political patronage; usually the lawyer assigned
has had no experience whatever in a capital
case."
Former Attorney General Ramsey Clark has said, "It
is the poor, the sick, the ignorant, the powerless and
the hated who are executed." 17 One searches our chronin
53 J. Crim. L. C. & P. S. 301 (1962). And see Hartung, Trends
in the Use of Capital Punishment, 284 Annals 8, 14-17 (1952).
16 Life and Death in Sing Sing 155-160 (1928).
i; Crime in America 335 ( 1970).
252 OCTOBER TERM, 1971
DoUGLAS, J., concurring 408U.S.
icles in vain for the execution of any member of the affluent
strata of this society. The Leopolds and Loebs are
given prison terms, not sentenced to death.
Jackson, a black, convicted of the rape of a white
woman, was 21 years old. A court-appointed psychiatrist
said that Jackson was of average education and average
intelligence, that he was not an imbecile, or schizophrenic,
or psychotic, that his traits were the product of environmental
influences, and that he was competent to stand
trial. Jackson had entered the house after the husband
left for work. He held scissors against the neck of the
wife, demanding money. She could find none anc:I a
struggle ensued for the scissors, a battle which she lost;
and she was then raped, Jackson keeping the scissors
pressed against her neck. While there did not appear
to be any long-term traumatic impact on the victim, she
was bruised and abrased in the struggle but was not
hospitalized. Jackson was a convict who had escaped
from a work gang in the area, a result of a three-year
sentence for auto theft. He was at large for three days
and during that time had committed several other offenses-
burglary, auto theft, and assault and battery.
Furman, a black, killed a householder while seeking
to enter the home at night. Furman shot the deceased
through a closed door. He was 26 years old and had
finished the sixth grade in school. P ending trial, he was
rommitted to the Georgia Central State Hospital for a
psychiatric examination on his plea of insanity tendered
by court-appointed counsel. The superintendent reported
that a unanimous staff diagnostic conference
had concluded "that this patient should retain his
present diagnosis of Mental Deficiency, Mild to Moderate,
with Psychotic Episodes associated with Convulsive
Disorder." The physicians agreed that "at present
the patient is not psychotic, but he is not capable
of cooperating with his counsel in the preparation of his
FURMAN v. GEORGIA 253
238 DouGLAS, J., concurring
defense"; and the staff believed "that he is in need of
further psychiatric hospitalization and treatment."
Later, the superintendent reported that the staff diagnosis
was Mental Deficiency, Mild to Moderate, with
Psychotic Episodes associated with Convulsive Disorder.
He concluded, however, that Furman was "not psychotic
at present, knows right from wrong and is able to cooperate
with his counsel in preparing his defense."
Branch, a black, entered the rural home of a 65-yearold
widow, a white, while she slept and raped her, holding
his arm against her throat. Thereupon he demanded
money and for 30 minutes or more the widow searched
for money, finding little. As he left, Jackson said if the
widow told anyone what happened, he would return and
kill her. The record is barren of any medical or psychiatric
evidence showing injury to her as a result of Branch's
attack.
He had previously been convicted of felony theft and
found to be a borderline mental deficient and well below
the average IQ of Texas prison inmates. He had
the equivalent of five and a half years of grade school
education. He had a "dull intelligence" and was in the
lowest fourth percentile of his class.
We cannot say from facts disclosed in these records
that these defendants were sentenced to death because
they were black. Yet our task is not restricted to an
effort to divine what motives impelled these death penalties.
Rather, we deal with a system of law and of
justice that leaves to the uncontrolled discretion of
judges or juries the determination whether defendants
committing these crimes should die or be imprisoned.
Under these laws no standards govern the selection of the
penalty. People live or die, dependent on the whim of
one man or of 12.
Irving Brant has given a detailed account of the
Bloody Assizes, the reign of terror that occupied the
254 OCTOBER TERM, 1971
DOUGLAS, J., concurring 408 U.S.
closing years of the rule of Charles II and the opening
years of the regime of James II ( the Lord Chief Justice
was George Jeffreys):
"Nobody knows how many hundreds of men, innocent
or of unproved guilt, Jeffreys sent to their
deaths in the pseudo trials that followed Monmouth's
feeble and stupid attempt to seize the
throne. When the ordeal enqed, scores had been
executed and 1,260 were awaiting the hangman in
three counties. To be absent from home during
the uprising was evidence of guilt. Mere death
was considered much too mild for the villagers and
farmers rounded up in these raids. The directions
to a high sheriff were to provide an ax, a cleaver,
'a furnace or cauldron to boil their heads and quarters,
and soil to boil therewith, half a bushel to
each traitor, and tar to tar them with, and a sufficient
number of spears and poles to fix their heads
and quarters' along the highways. One could have
crossed a good part of northern England by their
guidanc~.
"The story of The Bloody Assizes, widely known
to Americans, helped to place constitutional limitations
on the crime of treason and to produce a
bar against cruel and unusual punishments. But
in the polemics that led to the various guarantees
of freedom, it had no place compared with the
tremendous thrust of the trial and execution of
Sidney. The hundreds of judicial murders committed
by Jeffreys and his fellow judges were totally
inconceivable in a free American republic, but any
American could imagine himself in Sidney's placeexecuted
for putting on paper, in his closet, words
that later on came to express the basic principles
of republican government. Unless barred by fundamental
law, the legal rulings that permitted this
238
FURMAN v. GEORGIA 255
DouaLAS, J., concurring
result could easily be employed against any person
whose political opinions challenged the party in
power." The Bill of Rights 154-155 (1965).
Those who wrote the Eighth Amendment knew what
price their forebears had paid for a system based, not
on equal justice, but on discrimination. In those days
the target was not the blacks or the poor, but the dissenters,
those who opposed absolutism in government,
who struggled for a parliamentary regime, and who opposed
governments' recurring efforts to foist a particular
religion on the people. Id., at 15~163. But the
tool of capital punishment was used with vengeance
against the opposition and those unpopular with the
regime. One cannot read this history without realizing
that the desire for equality was reflected in the ban
against "cruel and unusual punishments" contained in
the Eighth Amendment.
In a Nation committed to equal protection of the
laws there is no permissible "caste" aspect 18 of law enforcement.
Yet we know that the discretion of judges
and juries in imposing the death penalty enables the
penalty to be selectively applied, feeding prejudices
against the accused if he is poor and despised, and
lacking political clout, or if he is a member of a suspect or
unpopular minority, and saving those who by social position
may be in a more protected position. In ancient
Hindu law a Brahman was exempt from capital punishment,
19 and under that law, "[g]enerally, in the law books,
punishment increased in severity as social status diminished."
20 We have, I fear, taken in practice the same
position, partially as a result of making the death pen-
18 See JohnBon, The Negro and Crim(', 217 Annals 93 (1941).
19 See ,T. Spellman, Political Theory of Ancient India 112 (1964).
2 ° C. Drekmeier, Kingship and Community in Early India 233
( 1962).
256 OCTOBER TERM, 1971
DouGLAs, J., concurring 408 U.S.
alty discretionary and partially as a result of the ability
of the rich to purchase the services of the most respected
and most resourceful legal talent in the Nation.
The high service rendered by the "cruel and unusual"
punishment clause of the Eighth Amendment is to require
legislatures to write penal laws that are evenhanded,
nonselective, and nonarbitrary, and to require
judges to see to it that general laws are not applied
sparsely, selectively, and spottily to unpopular groups.
A law that stated that anyone making more than
$50,000 would be exempt from the death penalty would
plainly fall, as would a law that in terms said that
blacks, those who never went beyond the fifth grade
in school, those who made less than $3,000 a year, or
those who were unpopular or unstable should be the
only people executed. A Jaw which in the overall view
reaches that result in practice 21 has no more sanctity than
a law which in terms provides the same.
Thus, these discretionary statutes are unconstitutional
21 Cf. B. Prettyman, Jr., Death and The Supreme Court 296-297
(1961).
"The disparity of representation in capital cases raises doubts
about capital punishment itself, which has been abolished in only
nine states. If a James Avery [345 U. S. 559] can be saved from
electrocution because his attorney made timely objection to the selection
of a jury by the use of yellow and white tickets, while an
Aubry Williams [349 U. S. 375] can be sent to his death by a jury
selected in preciPely the Rame manner, we are imposing our most
extreme penalty in an uneven fashion.
"The problem of proper representation is not a problem of money,
as some have claimed, but of a lawyer's ability, and it is not true
that only the rich have able lawyers. Both the rich and the poor
usually are well represented-the poor because more often than not
the best attorneys are appointed to defend them. It is the middleclass
defendant, who can afford to hire an attorney but not a very
good one, who is at a disadvantage. Certainly William Fikes [352
U. S. 191], despite the anomalous position in which he finds himself
FURMAN v. GEORGIA 257
238 BRENNAN, J., concurring
in their operation. They are pregnant with discrimination
and discrimination is an ingredient not compatible with
the idea of equal protection of the laws that is implicit
in the ban on "cruel and unusual" punishments.
Any law which is nondiscriminatory on its face may be
applied in such a way as to violate the Equal Protection
Clause of the Fourteenth Amendment. Yick Wo v.
Hopkins, 118 U. S. 356. Such conceivably might be
the fate of a mandatory death penalty, where equal or
lesser sentences were imposed on the elite, a harsher one
on the minorities or members of the lower castes.
Whether a mandatory death penalty would otherwise be
constitutional is a question I do not reach.
I concur in the judgments of the Court.
MR. Jus'l'ICE BRENNAN, concurring.
The question presented in these cases is whether death
is today a punishment for crime that is "cruel and unusual"
and consequently, by virtue of the Eighth and
Fourteenth Amendments, beyond the power of the State
to inflict.1
today, received as effective and intelligent a defense from his courtappointed
attorneys as he would have received from an attorney his
family had scraped together enough money to hire.
"And it is not only a matter of ability. An attorney must be
found who is prepared to spend precious hours-the basic commodity
he has to sell-on a case that seldom fully compensates him and
often brings him no fee at all. The public has no conception of the
time and effort devoted by attorneys to indigent cases. And in a
first-degree case, the added responsibility of having a man's life
depend upon the outcome exacts a heavy toll."
1 The Eighth Amendment provides: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
infl,icted." (Emphasis added.) The Cruel and Unusual
Punishments Clause is fully applicable to the States through the Due
Process Clause of the Fourteenth Amendment. Robinson v. Cali258
OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
Almost a century ago, this Court observed that
"[d]ifficulty would attend the effort to define with exactness
the extent of the constitutional provision which
provides that cruel and unusual punishments shall not
be inflicted." Wilkerson v. Utah, 99 U. S. 130, 135-
136 ( 1879'). Less than 15 years ago, it was again noted
that " [ t] he exact scope of the constitutional phrase
'cruel and unusual' has not been detailed by this Court."
Trap v. Dulles, 356 U. S. 86, 99 (1958). Those statements
remain true today. The Cruel and Unusual Punishments
Clause, like the other great clauses of the Constitution,
is not susceptible of precise definition. Yet
we know that the values and ideals it embodies are basic
to our scheme of government. And we know also that
the Clause imposes upon this Court the duty, when the
issue is properly presented, to determine the constitutional
validity of a challenged punishment, whatever that
punishment may be. In these cases, " [ t] hat issue confronts
us, and the task of resolving it is inescapably
ours." Id., at 103.
I
We have very little evidence of the Framers' intent
in including the Cruel and Unusual Punishments Clause
among those restraints upon the new Government enumerated
in the Bill of Rights. The absence of such
a restraint from the body of the Constitution was alluded
to, so far as we now know, in the debates of only
two of the state ratifying conventions. In the Massachusetts
convention, Mr. Holmes protested:
"What gives an additional glare of horror to these
gloomy circumstances is the oonsideration, that
Congress have to ascertain, point out, and deterfornia,
370 U. S. 660 (1962); Gideon v. Wainwright, 372 U. S. 335,
342 (1963); Mal,loy v. Hogan, 378 U.S. 1, 6 n. 6 (1964); Powell v.
Texa.s, 392 U.S. 514 (1968).
238
FURMAN v. GEORGIA 259
BRENNAN, J., concurring
mine, what kind of punishments shall be inflicted
on persons convicted of crimes. They are nowhere
restrained from inventing the most cruel and
unheard-of punishments, and annexing them to
crimes; and there is no constitutional check on
them, but that racks and gibbets may be amongst
the most mild instruments of their discipline." 2
J. Elliot's Debates 111 (2d ed. 1876).
Holmes' fear that Congress would have unlimited power
to prescribe punishments for crimes was echoed by Patrick
Henry at the Virginia convention:
" ... Congress, from their general powers, may fully
go into business of human legislation. They may
legislate, in criminal cases, from treason to the
lowest offence--petty larceny. They may define
crimes and prescribe punishments. In the definition
of crimes, I trust they will be directed by what wise
representatives ought to be governed by. But when
we come to punishments, no latitude ought to be
left, nor dependence put on the virtue of representatives.
What says our [Virginia] bill of rights?-
'that excessive bail ought not to be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.' Are you not, therefore, now
calling on those gentlemen who are to compose Congress,
to ... define punishments without this control?
Will they find sentiments there similar to this bill
of rights? You let them loose; you do more--you
depart from the genius of your country ....
"In this business of legislation, your members
of Congress will loose the restriction of not imposing
excessive fines, demanding excessive bail,
and inflicting cruel and unusual punishments. These
are prohibited by your [Virginia] declaration of
rights. What has distinguished our ancestors?-
260 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
That they would not admit of tortures, or cruel
and barbarous punishment." 3 id., at 447."
These two statements shed some light on what the
Framers meant by "cruel and unusual punishments."
Holmes referred to "the most cruel and unheard-of punishments,"
Henry to "tortures, or cruel and barbarous
punishment." It does not follow, however, that the
Framers were exclusively concerned with prohibiting
torturous punishments. Holmes and Henry were objecting
to the absence of a Bill of Rights, and they cited
to support their objections the unrestrained legislative
power to prescribe punishments for crimes. Certainly
we may suppose that they invoked the specter of the
most drastic punishments a legislature might devise.
In addition, it is quite clear that Holmes and
Henry focused wholly upon the necessity to restrain
the legislative power. Because they recognized "that
Congress have to ascertain, point out, and determine,
what kinds of punishments shall be inflicted on persons
convicted of crimes," they insisted that Congress must
be limited in its power to punish. Accordingly, they
2 Henry continued:
"But Congress may introduce the practice of the civil law, in preference
to that of the common law. They may introduce the practice
of France, Spain, Rnd Germany-of torturing, to extort a confession
of the crime. They will say that they might as well draw examples
from those countries as from Great Britain, and they will tell you that
there is such a necessity of strengthening the arm of government,
that they must have a criminal equity, and extort confession by torture,
in order to punish with still more relentless severity. We are
then lost and undone." 3 J. Elliot's Debates 447- 448 (2d ed. 1876).
Although these remarks hav<' been cited as evidence that the Framers
considered only torturous punishments to b0 "cruel and unusual,"
it is obvious that Henry was referring to the use of torture for
the purpose of eliciting confessions from suspected rriminals. Indeed,
in t.he ensuing colloquy, see n. 3, infra, George Mason respondf'd that
t.he use of torture was prohibited by the right against srlf-incrimination
contained in the Virginia Bill of Rights.
FURMAN v. GEORGIA 261
238 BRENNAN, J., concurring
called for a "constitutional check" that would ensure that
"when we come to punishments, no latitude ought to
be left, nor dependence put on the virtue of
representatives." 3
The only further evidence of the Framers' intent
appears from the debates in the First Congress on
the adoption of the Bill of Rights.4 As the Court noted
in Weems v. United States, 217 U. S. 349, 368 (1910),
3 It is significant that the response to Henry's plea, by George
Nicholas, was simply that a Bill of Rights would be ineffective as a
means of restraining the legislative power to prescribe punishments:
"But the gentleman says that, by this Constitution, they have power
to make laws to define crimes and prescribe punishments; and that,
consequently, we are not free from torture. . . . If we had no
security against torture but our [Virginia] declaration of rights, we
might be tortured to-morrow; for it has been repeatedly infringed
and disregarded." 3 J. Elliot's Debates, supra, at 451.
George Mason misinterpreted Nicholas' response to Henry:
"Mr. GEORGE MASON replied that the worthy gentleman was
mistaken in his assertion that the [Virginia] bill of rights did not
prohibit torture; for that one clause expressly provided that no man
can give evidence against himself; and that the worthy gentleman
must know that, in those countries where torture is used, evidence
was extorted from the criminal himself. Another clause of the bill
of rights provided that no cruel and unusual punishments shall be
inflicted; therefore, torture was included in the prohibition." / d.,
at 452.
Nicholas concluded the colloquy by making his point again:
"Mr. NICHOLAS acknowledged the [Virginia] bill of rights to
contain that prohibition, and that the gentleman was right with
respect to the practice of extorting confession from the criminal in
those countries where torture is used; but still he saw no security
arising from the bill of rights as separate from the Constitution, for
that it had been frequently violated with impunity." Ibid.
There was thus no denial that the legislative power should be restrained;
the dispute was whether a Bill of Rights would provide a
realistic restraint. The Framers, obviously, believed it would.
We have not been referred to any mention of the Cruel and Unusual
Punishments Clause in the debates of the state legislatures on
ratification of the Bill of Rights.
262 OCTOBER TERM, 1971
BRENNAN, J., concurring 408U.S.
the Cruel and Unusual Punishments Clause "received
very little debate." The extent of the discussion, by
two opponents of the Clause in the House of Representatives,
was this:
"Mr. SMITH, of South Carolina, objected to the
words 'nor cruel and unusual punishments;' the import
of them being too indefinite.
"Mr. LIVERMORE.-The !Eighth Amendment]
seems to express a great deal of humanity,
on which account I have no objection to it;
but as it seems to have no meaning in it, I
do not think it necessary. . . . No cruel and
unusual punishment is to be inflicted; it is sometimes
necessary to hang a man, villains often
deserve whipping, and perhaps having their ears
cut off; but are we in future to be prevented from
inflicting these punishments because they are cruel?
If a more lenient mode of correcting vice and deterring
others from the commission of it could be
invented, it would be very prudent in the Legislature
to adopt it; but until we have some security
that this will be done, we ought not to be restrained
from making necessary lavis by any declaration of
this kind.
"The question was put on the [Eighth Amendment
l, and it was agreed to by a considerable majority."
1 Annals of Cong. 754 (1789) .5
Livermore thus agreed with Holmes and Henry that
the Cruel and Unusual Punishments Clause imposed a
limitation upon the legislative power to prescribe pun-
5 The elided portion of Livermore's remarks reads: "What is meant
by the terms excessive bail? Who are to be the judges? What is
understood by excessive fines? It lies with the court to determine."
Since Livermore did not ask similar rhetorical questions about the
Cruel and Unu~ual Punishments Clause, it is unclear whether he
included the Clause in his objection that the Eighth Amendment
"seems to have no meaning in it."
FURMAN v. GEORGIA 263
238 BRENNAN, J., concurring
ishments. However, in contrast to Holmes and Henry,
who were supporting the Clause, Livermore, opposing
it, did not refer to punishments that were considered
barbarous and torturous. Instead, he objected that the
Clause might someday prevent the legislature from inflicting
what were then quite common and, in his view,
"necessary" punishments-death, whipping, and earcropping.
6 The only inference to be drawn from Livermore's
statement is that the "considerable majority"
was prepared to run that risk. No member of the
House rose to reply that the Clause was intended merely
to prohibit torture.
Several conclusions thus emerge from the history of
the adoption of the Clause. We know that the Framers'
concern was directed specifically at the exercise of legislative
power. They included in the Bill of Rights a
prohibition upon "cruel and unusual punishments" wecisely
because the legislature would otherwise have had
the unfettered power to prescribe punishments for crimes.
Yet we cannot now know exactly what the Framers
thought "cruel and unusual punishments" were. Certainly
they intended to ban torturous punishments, but
the available evidence does not support the further conclusion
that only torturous punishments were to be
outlawed. As Livermore's comments demonstrate, the
Framers were well aware that the reach of the Clause
was not limited to the proscription of unspeakable atrocities.
Nor did they intend simply to forbid punishments
considered "cruel and unusual" at the time. The
"import" of the Clause is, indeed, "indefinite," and for
good reason. A constitutional provision "is enacted, it
is true, from an experience of evils, but its general la.n-
6 Indeed, the first federal criminal statute, enacted by the First Congress,
prescribed 39 lashes for larceny and for reC'eiving stolen goods,
and one hour in the pillory for perjury. Act of Apr. 30, 1790,
§§ 16~18, 1 Stat. 116.
264 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
guage should not, therefore, be necessarily confined to
the form that evil had theretofore taken. Time works
changes, brings into existence new conditions and purposes.
Therefore a principle to be vital must be capable
of wider application than the mischief which gave it
birth." Weems v. United States, 217 U. S., at 373.
It was almost 80 years before this Court had occasion
to refer t-0 the Clause. See Pervear v. The Commonwealth,
5 Wall. 475, 479-480 (1867). These early
cases, as the Court pointed out in Weems v. United
States, supra, at 369, did not undertake to provide "an
exhaustive definition" of "cruel and unusual punishments."
Most of them proceeded primarily by "looking
backwards for examples by which to fix the meaning
of the clause," id., at 377, concluding simply that
a punishment would be "cruel and unusual" if it were
similar to punishments considered "cruel and unusual"
at the time the Bill of Rights was adopted.7 In Wilkerson
v. Utah, 99 U. S., at 136, for instance, the
Court found it "safe to affirm that punishments of torture
. . . and all others in the same line of unnecessary
cruelty, are forbidden." The "punishments of torture,"
which the Court labeled "atrocities," were cases where
the criminal "was embowelled alive, beheaded, and
quartered," and cases "of public dissection . . . and
burning alive." Id., at 135. Similarly, in In re Kemm-
1 Many of the state courts, "feeling constrained thereto by the
incidences of history," Weems v. United States, 217 U. S. 349, 376
(1910), were apparently taking the same position. One court "expressed
the opinion that the provision did not apply to pnnishmr>nt.
by 'fine or imprisonment or both, but such as that inflicted at the
whipping post, in the pillory, burning at the stake, breaking on the
wheel,' et.c." Ibid. Another court "said that ordinarily the terms
imply something inhuman and barbarous, torture and the like ....
Other cases . . . selected certain tyrannical acts of the English monarchs
as illustrating the meaning of the clause and the extent of its
prohibition." Id., at 368.
FURMAN v. GEORGIA 265
238 BRENNAN, J., concurring
ler, 136 U. S. 436, 446 ( 1890), the Court declared that
"if the punishment prescribed for an offence against the
laws of the State were manifestly cruel and unusual, as
burning at the stake, crucifixion, breaking on the wheel,
or the like, it would be the duty of the courts to adjudge
such penalties to be within the constitutional prohibition."
The Court then observed, commenting upon
the passage just quoted from Wilkerson v. Utah, supra,
and applying the "manifestly cruel and unusual" test, that
"[p] unishments are cruel when they involve torture or
a lingering death; but the punishment of death is not
cruel, within the meaning of that word as used in the
Constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment
of life." 136 U. S., at 447.
Had this "historical" interpretation of the Cruel and
Unusual Punishments Clause prevailed, the Clause would
have been effectively read out of the Bill of Rights.
As the Court noted in Weems v. United States, supra,
at 371, this interpretation led Story to conclude
"that the provision 'would seem to be wholly unnecessary
in a free government, since it is scarcely possible
that any department of such a government should
authorize or justify such atrocious conduct.' " And
Cooley in his book, Constitutional Limitations, said the
Court, "apparently in a struggle between the effect to
be given to ancient examples and the inconsequence of
a dread of them in these enlightened times, ... hesitate[
cl] to advance definite vie-ws." ld., at 375. The
result of a judicial application of this interpretation was
not surprising. A state court, for example, upheld the
constitutionality of the whipping post: "In comparison
with the 'barbarities of quartering, hanging in chains,
castration, etc.,' it was easily reduced to insignificance."
Id., at 377.
266 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
But this Court in Weems decisively repudiated the
"historical" interpretation of the Clause. The Court,
returning to the intention of the Framers, "rel[ied] on
the conditions which existed when the Constitution was
adopted." And the Framers knew "that government by
the people instituted by the Constitution would not
imitate the conduct of arbitrary monarchs. The abuse
of power might, indeed, be apprehended, but not that
it would be manifested in provisions or practices which
would shock the sensibilities of men." Id., at 375. The
Clause, then, guards against "[t]he abuse of power";
contrary to the implications in Wilkerson v. Utah, supra,
and In re Kemmler, supra, the prohibition of the Clause
is not "confine [ d] ... to such penalties and punishment
as were inflicted by the Stuarts." 217 U. S., at 372.
Although opponents of the Bill of Rights "felt sure
that the spirit of liberty could be trusted, and that its
ideals would be represented, not debased, by legislation,"
ibid., the Framers disagreed:
"[Patrick] Henry and those who believed as he did
would take no chances. Their predominant political
impulse was distrust of power, and they insisted
on constitutional limitations against its abuse. But
surely they intended more than to register a fear
of the forms of abuse that went out of practice
with the Stuarts. Surely, their rj ealousy] of power
had a saner justification than that. They were
men of action, practical and sagacious, not beset
with vain imagining, and it must have come to
them that there could be exercises of cruelty by
laws other than those which inflicted bodily pain
or mutilation. With power in a legislature great,
if not unlimited, to give criminal character to the
actions of men, with power unlimited to fix terms
of imprisonment with what accompaniments they
238
FURMAN v. GEORGIA 267
BRENNAN, J., concurring
might, what more potent instrument of cruelty could
be put into the hands of power? And it was believed
that power might be tempted t.o cruelty.
This was the motive of the clause, and if we are
to attribute an intelligent providence to its advocates
we cannot think that it was intended to prohibit
only practices like the [Stuarts',] or to prevent
only an exact repetition of history. We cannot think
that the possibility of a coercive cruelty being
exercised through other forms of punishment was
overlooked." Id., at 372-373.
The Court in Wee1ns thus recognized that this "restraint
upon legislatures" possesses an "expansive and vital
character" that is " 'essential ... to the rule of law and
the maintenance of individual freedom.'" Id., at 376-
377. Accordingly, the responsibility lies with the courts
to make certain that the prohibition of the Clause is
enforced.8 Referring to cases in which "prominence
[was] given to the power of the legislature to define
crimes and their punishment," the Court said:
"We concede the power in most of its exercises.
We disclaim the right. to assert a judgment
8 The Court had earlier emphasized this point in In re Kemmler,
136 U. S. 436 (1890). even while stating the narrow, "historical"
interpretation of the Clause:
"This [English] Declaration of Rights had reference to the acts of
the executive and judicial departments of the government of England;
but the language in question as used in the constitution of the State
of New York was intended particularly to operate upon the legislature
of the State, to whose control the punishment of crime was almost
wholly confided. So that, if the punishment prescribed for
an offence against the laws of the State were manifestly cruel and
unusual, ... it would be the duty of the courts to adjudge such
penalties to be within the constitutional prohibition. And we think
this equally true of the [Clause], in its application to Congress."
Id., at 446-44 7 ( emphasis added).
268 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
against that of the legislature of the expediency of
the laws or the right to oppose the judicial power
to the legislative power to define crimes and fix
their punishment, unless that power encounters in
its exercise a oonstitutional prohibition. In such
case not our discretion but our legal duty, strictly
defined and imperative in its direction, is invoked."
Id., at 378.9
In short, this Court finally adopted the Framers' view
of the Clause as a "constitutional check" to ensure that
"when we come to punishments, no latitude ought to be
left, nor dependence put on the virtue of representatives."
That, indeed, is the only view consonant with our constitutional
form of government. If the judicial conclusion
that a punishment is "cruel and unusual" "depend [ ed]
upon virtually unanimous condemnation of the penalty at
issue," then, "[l]ike no other constitutional provision,
[ the Clause's] only function would be to legitimize advances
already made by the other departments and opinions
already the conventional wisdom." We know that
the Framers did not envision "so narrow a role for this
basic guaranty of human rights." Goldberg & Dershowitz,
Declaring the Death Penalty Unconstitutional, 83 Harv.
L. Rev. 1773, 1782 (1970). The right to be free of cruel
and unusual punishments, like the other guarantees of
the Bill of Rights, "may not be submitted to vote; [it]
depend[s] on the outcome of no elections." "The very
purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials
and to establish them as legal principles to be applied
0 Indeed, the Court in Weems refused even to commPnt upon some
decisions from state courts because they were "based upon sentences
of courts, not upon the constitutional validity of laws." 217 U. S.,
at 377.
FURMAN v. GEORGIA 269
238 BRENNAN, J., concurring
by the courts." Board of Education v. Barnettr, 319 u. s. 624, 638 (1943).
Judicial enforcement of the Clause, then, cannot be
evaded by invoking the obvious truth that legislatures
have the power to prescribe punishments
for crimes. That is precisely the reason the Clause
appears in the Bill of Rights. The difficulty arises,
rather, in formulating the "legal principles to be
applied by the courts" when a legislatively prescribed
punishment is challenged as "cruel and unusual." In
formulating those constitutional principles, we must
avoid the insertion of "judicial conception [s] of ...
wisdom or propriety," Weems v. United States, 217
U. S., at 379, yet we must not, in the guise of "judicial
restraint," abdicate our fundamental responsibility
to enforce the Bill of Rights. Were we to do so, the
"constitution would indeed be as easy of application as
it would be deficient in efficacy and power. Its general
principles would have little value and be converted by
precedent into impotent and lifeless formulas. Rights
declared in ·words might be lost in reality." Id., at 373.
The Cruel and Unusual Punishments Clause would become,
in short, "little more than good advice." Trap
v. Dulles, 356 U. S., at 104.
II
Ours would indeed be a simple task were we required
merely to measure a challenged punishment against those
that history has long condemned. That narrow and
unwarranted view of the Clause, however, was left behind
with the 19th century. Our task today is more
complex. We know "that the words of the [Clause] are
not precise, and that their scope is not static." We know,
therefore, that the Clause "must draw its meaning from
the evolving standards of decency that mark the prog270
OCTOBER TERM, 1971
BRENNAN, J., concurring 408U.S.
ress of a maturing society." Id., at 100-101. 10 That
knowledge, of course, is but the beginning of the inquiry.
In Trop v. Dulles, supra, at 99, it was said that "[t]he
question is whether [a] penalty subjects the individual
to a fate forbidden by the principle of civilized treatment
guaranteed by the [Clause]." It was also said that a
challenged punishment must be examined "in light of
the basic prohibition against inhuman treatment" embodied
in the Clause. Id., at 100 n. 32. It was said,
finally, that:
"The basic concept underlying the [Clause] is
nothing less than the dignity of man. While the
State has the power to punish, the [Clausel stands to
assure that this power be exercised within the limits
of civilized standards." Id., at 100.
At bottom, then, the Cruel and Unusual Punishments
Clause prohibits the infliction of uncivilized and inhuman
punishments. The State, even as it punishes,
must treat its members with respect for their intrinsic
worth as human beings. A punishment is "cruel and
unusual," therefore, if it does not comport with human
dignity.
This formulation, of course, does not of itself yield
principles for assessing the constitutional validity of particu
Jar punishments. Nevertheless, even though "ft] his
Court has had little occasion to give precise content to
the [Clause)," ibid., there are principles recognized in
our cases and inherent in the Clause sufficient to permit
a judicial determination whether a challenged punishment
comports with human dignity.
10 The Clause "may be therefore progressive, and is not fastened
to thr obsolete but may acquire meaning as public opinion becomes
enlightened by a humane justice." Weems v. United States, 217
U. S., at 378.
FURMAN v. GEORGIA 271
238 BRENNAN, J., concurring
The primary principle is that a punishment must not
be so severe as to be degrading to the dignity of human
beings. Pain, certainly, may be a factor in the judgment.
The infliction of an extremely severe punishment
will often entail physical suffering. See Weems
v. United States, 217 U. S., at 366.ll Yet the Framers
also knew "that there could be exercises of cruelty by
laws other than those which inflicted bodily pain or
mutilation.'' Id., at 372. Even though "[t]here may
be involved no physical mistreatment, no primitive torture,"
Trop v. Dulles, supra, at 101, severe mental pain
may be inherent in the infliction of a particular punishment.
See Weems v. United States, supra, at 366.12 That,
indeed, was one of the conclusions underlying the holding
of the plurality in Trop v. Dulles that the punishment
of expatriation violates the Clause.'3 And the
11 "It may be that even the cruelty of pain is not omitted. He
must bear a chain night and day. He is condemned to painful as
well as hard labor. What painful labor may mean we have no exact
measure. It must be something more than hard labor. It may be
hard labor pressed to the point of pain."
12 "His prison bars and chains are removed, it is true, after twelve
years, but he goes from them to a perpetual limitation of his liberty.
He is forever kept under the shadow of his crime, forever kept within
voice and view of the criminal magistrate, not being able to change
his domicil without giving notice to the 'authority immediately in
charge of his surveillance,' and without permission in writing. He
may not seek, even in other scenes and among other people, to retrieve
his fall from rectitude. Even that hope is taken from him
and he is subject to tormenting regulations that, if not so tangible
as iron bars and stone walls, oppress as much by their continuity,
and deprive of essential liberty."
13 "This punishment is offensive to cardinal principles for which
the Constitution stands. It subjects the individual to a fate of
ever-increasing fear and distress. He knows not what discriminations
may be established against him, what proscriptions may be
directed against him, and when and for what cause his existence in
his native land may be terminated. He may be subject to banish272
OCTOBER TERM, 1971
BRENNAN, J., concurring 408U.S.
physical and mental suffering inherent in the punishment
of cadena temporal, see nn. 11-12, supra, was an
obvious basis for the Court's decision in Weems v. United
States that the punishment was "cruel and unusual." 1-<
More than the presence of pain, however, is comprehended
in the judgment that the extreme severity
of a punishment makes it degrading to the dignity of
human beings. The barbaric punishments condemned
by history, "punishments which inflict torture, such as
the rack, the thumbscrew, the iron boot, the stretching
of limbs and the like," are, of course, "attended with
acute pain and suffering." O'Neil v. Vermont, 144 U.S.
323, 339 (1892) (Field, J., dissenting). When we consider
why they have been condemned, however, we realize
that the pain involved is not the only reason. The
true significance of these punishments is that they treat
ment, a fate universally decried by civilized people. He is stateless,
a condition deplored in the international community of democracies.
It is no answer to suggest that all the disastrous consequences
of this fate may not be brought to bear on a stateless person. The
threat makes the punishment obnoxious." Trop v. Dulles, 356 U.S.
86, 102 (1958). Cf. id., at 110-111 (BRENNAN, J., concurring):
"[I]t can be supposed that the consequences of greatest weight, in
terms of ultimate impact on the petitioner, are unknown and unknowable.
Indeed, in truth, he may live out his life with but minor
inconvenience. . . . Nevertheless it cannot be denied that the
impact of expatriation-especially where statelessness is the upshotmay
be severe. Expatriation, in this respect, constitutes an especially
demoralizing sanction. The uncertainty, and the consequent psychological
hurt, which must arcompany one who becomes an outcast in
his own land must be reckoned a substantial factor in the ultimate
judgment."
14 "It is cruel in its excess of imprisonment and that which accompanies
and follows imprisonment. It is unusual in its character.
Its punishments come under the condemnation of the bill of rights,
both on account of their degree and kind." Weems v. United States,
217 U. S., at 377.
FURMAN v. GEORGIA
238 BRENNAN, J., concurring
members of the human race as nonhumans, as objects to
be toyed with and discarded. They are thus inconsistent
with the fundamental premise of the Clause that
even the vilest criminal remains a human being possessed
of common human dignity.
The infliction of an extremely severe punishment, then,
like the one before the Court in Weems v. United States,
from which "[n]o circumstance of degradation [was]
omitted," 217 U. S., at 366, may reflect the attitude that
the person punished is not entitled to recognition as
a fellow human being. That attitude may be apparent
apart from the severity of the punishment itself. In
Louisiana ex rel. Francis v. Resweber, 329 U. S. 459,
464 ( 1947), for example, the unsuccessful electrocution,
although it caused "mental anguish and physical pain,"
was the result of "an unforeseeable accident." Had the
failure been intentional, however, the punishment would
have been, like torture, so degrading and indecent as to
amount to a refusal to accord the criminal human status.
Indeed, a punishment may be degrading to human dignity
solely because it is a punishment. A State may not
punish a person for being "mentally ill, or a leper, or ...
affiicted with a venereal disease," or for being addicted
to narcotics. Robinson v. California, 370 U. S. 660, 666
(1962). To inflict punishment for having a disease is to
treat the individual as a diseased thing rather than
as a sick human being. That the punishment is not
severe, "in the abstract," is irrelevant; "[e]ven one day
in prison would be a cruel and unusual punishment for
the 'crime' of having a common cold." Id., at 667.
Finally, of course, a punishment may be degrading simply
by reason of its enormity. A prime example is expatriation,
a "punishment more primitive than torture," Trop
v. Dulles, 356 U. S., at 101, for it necessarily involves a
274 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
denial by society of the individual's existence as a member
of the human community.15
In determining whether a punishment comports with
human dignity, we are aided also by a second principle
inherent in the Clause-that the State must not arbitrarily
inflict a severe punishment. This principle derives
from the notion that the State does not respect
human dignity when, without reason, it inflicts upon some
people a severe punishment that it does not inflict upon
others. Indeed, the very words "cruel and unusual
punishments" imply condemnation of the arbitrary
infliction of severe punishments. And, as we now
know, the English history of the Clause rn reveals a
particular concern with the establishment of a safeguard
against arbitrary punishments. See Granucci, "Nor Cruel
and Unusual Punishments Inflicted:" The Original
Meaning, 57 Calif. L. Rev. 839, 857-860 (1969).17
15 "There may be involved no physical mistreatment, no primitive
torture. There is instead the total destruction of the individual's
status in organized society. It is a form of punishment more primitive
than torture, for it destroys for the individual the political
existence that was centuries in the development. The punishment
strips the citizen of his status in the national and international political
community. His very existence is at the sufferance of the
country in which he happens to find himself. While any one country
may accord him some rights, and presumably as long as he remained
in this country he would enjoy the limited rights of an alien, no
country need do so because he is stateless. Furthermore, his enjoyment
of even the limited rights of an alien might be subject to termination
at any time by reason of deportation. In short, the expatriate
has Jost the right to have rights." Trop v. Didles, 356 U. S.,
at 101-102.
16 "The phrase in our Constitution was taken directly from the
English Declaration of Rights of [1689] .... " Id., at 100.
17 The specific incident giving rise to the provision was the perjury
trial of Titus Oates in 1685. "None of the punishments inflicted
upon Oates amounted to torture. . . . In the context of the Oates'
FURMAN v. GEORGIA 275
238 BRENNAN, J., concurring
This principle has been recognized m our cases.18
In Wilkerson v. Utah, 99 U. S., at 133-134, the
Court reviewed various treatises on military law
in order to demonstrate that under "the custom of war"
shooting was a common method of inflicting the punishment
of death. On that basis, the Court concluded:
"Cruel and unusual punishments are forbidden
by the Constitution, but the authorities referred
to [ treatises on military law] are quite sufficient
to show that the punishment of shooting as a mode
of executing the death penalty for the crime of
murder in the first degree is not included in that
case, 'cruel and unusual' seems to have meant a severe punishment
unauthorized by statute and not within the jurisdiction of the court
to impose." Granucci, "Kor Cruel and Unusual Punishments Inflicted:"
The Original Meaning, 57 Calif. L. Rev. 839, 859 (1969).
Thus, "[t]he irregularity and anomaly of Oates' treatment was
extreme." Goldberg & Dershowitz, Declaring the Death Penalty
Unconstitutional, 83 Harv. L. Rev. 1773, 1789 n. 74 (1970). Although
the English provision was intended to restrain the judicial
and executive power, see n. 8, supra, the principle is, of course, fully
applicable under our Clause, which is primarily a restraint upon
the legislative power.
18 In a case from the Philippine Territory, the Court struck down
a punishment that "ha [ d] no fellow in American legislation." Weems
v. United States, 217 U. S., at 377. After examining the punishments
imposed, under both United States and Philippine law, for
similar as well as more serious crimes, id., at 380-381, the Court
declared that the "contrast" "exhibit[ed] a difference between ,m.
restrained power and that which is exercised under the spirit of
constitutional limitations formed to establish justice," id., at 381.
And in Trap v. Dulles, supra, in which a law of Congress punishing
wartime desertion by expatriation was held unconstitutional,
it was emphasized that " [ t] he civilized nations of the world are
in virtual unanimity that statelessness is not to be imposed as
punishment for crime." Id., at 102. When a severe punishment
is not inflicted elsewhere, or when more serious crimes are punished
less severely, there is a strong inference that the State is exercising
arbitrary, "unrestrained power."
276 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
category, within the meaning of the [Clause]. Soldiers
convicted of desertion or other capital military
offenses are in the great majority of cases sentenced
to be shot, and the ceremony for such occasions is
given in great fulness by the writers upon the subject
of courts-martial." Id., at 134-135.
The Court thus upheld death by shooting, so far as appears,
solely on the ground that it was a common method
of execution.19
As Wilkerson v. Utah suggests, when a severe punishment
is inflicted "in the great majority of cases" in
which it is legally available, there is little likelihood that
the State is inflicting it arbitrarily. If, however, the
infliction of a severe punishment is "something different
from that which is generally done" in such cases, Trop
v. Dulles, 356 U. S., at 101 n. 32,20 there is a sub-
19 In Weems v. United States, supra, at 369-370, the Court summarized
the holding of Wilkerson v. Utah, 99 U. S. 130 ( 1879),
as follows:
"The court pointed out that death was an usual punishment for
murder, that it prevailed in the Territory for many years, and was
inflicted by shooting, also that that mode of execution was usual
under military law. It was hence concluded that it was not forbidden
by the Constitution of the United States as cruel or unusual."
20 It was said in Trop v. Dulles, supra, at 100---101, n. 32, that
" [ o Jn the few occasions this Court has had to consider the meaning
of the rc1ause], precise distinctions between cruelty and unusualness
do not seem to have been drawn. . . . If the word 'unusual'
is to have any meaning apart from the word 'cruel,' however,
the meaning should be the ordinary one, signifying something
different from that which is generally done." There are other statements
in prior cases indicating that the word "unusual" has a distinct
meaning:
"We perceive nothing ... unusual in this [punishment]." Pervear
v. The Commonwealth, 5 Wall. 475, 480 (1867). "[T]he judgment
of mankind would be that the punishment was not only an
unusual but a cruel one .... " O'Neil v. Vermont, 144 U. S. 323,
340 (1892) (Field, .T., dissenting). "It is unusual in its character."
Weems v. United States, supra, at 377. "And the punishment
FUK\lAN 11. GEORGIA 277
238 BRENNAN, J., concurring
stantial likelihood that the State, contrary to the requirements
-of regularity and fairness embodied in the
Clause, is inflicting the punishment arbitrarily. This
principle is especially important today. There is scant
danger, given the political processes "in an enlightened
democracy such as ours," id., at 100, that extremely
severe punishments will be widely applied. The more
significant function of the Clause, therefore, is to protect
against the danger of their arbitrary infliction.
A third principle inherent in the Clause is that a
severe punishment must not be unacceptable to contemporary
society. Rejection by society, of course, is a
strong indication that a severe punishment does
not comport with human dignity. In applying this
principle, however, we must make certain that the
judicial determination is as objective as possible.21
inflicted . . . is certainly unusual." United States ex rel. Milwaukee
Social Democratic Pub. Co. v. Burleson, 255 U. S. 407,
430 (1921) (Brandeis, J., dissenting). "The punishment inflicted is
not only unusual in charactt>r; it is, so far as known, unprecedented
in American legal history." Id., at 435. "There is no precedent
for it. What then is it, if it be not cruel, unusual and unlawful?"
Louil3iana ex rel. Francis v. Resweber, 329 U. S. 459, 479 (1947)
(Burton, J ., dissenting). "To be sure, imprisonment for ninety days
is not, in the abstract, a punishment which is either cruel or unusual."
Robinson v. California, 370 U. S., at 667.
It is fair to conclude from these statements that " [ w] hether the
word 'unusual' has any qualitative meaning different from 'cruel' is
not clear." Trop v. Dulles, supra, at 100 n. 32. The question, in
any event, is of minor significance; this Court has never attempted
to explicate the meaning of the Clause simply by parsing its words.
21 The danger of subjective judgment is acute if the question posed
is whether a punishment "shocks the most fundamental instincts of
civilized man," Louisiana ex rel. Francis v. Resweber, supra, at
473 (Burton, J., dissenting), or whether "any man of right feeling
and heart can refrain from shuddering," O'Neil v. Vermont,
supra, at 340 (Field, J., dissenting), or whether "a cry of horror
would rise from every civilized and Christian commnnity of the
country," ibid. Mr. Justice Frankfurter's concurring opinion in
278 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
Thus, for example, Weems v. United States, 217 U. S.,
at 380, and Trop v. Dulles, 356 U. S., at 102-103, suggest
that one factor that may be considered is the existence
of the punishment in jurisdictions other than those
before the Court. Wilkerson v. Utah, supra, suggests
that another factor to be considered is the historic usage
of the punishment.22 Trop v. Dulles, supra, at 99, combined
present acceptance with past usage by observing
that "the death penalty has been employed throughout
our history, and, in a day when it is still widely accepted,
it cannot be said to violate the constitutional
concept of cruelty." In Robinson v. California, 370
U. S., at 666, which involved the infliction of punishment
for narcotics addiction, the Court went a step further,
concluding simply that "in the light of contemporary
human knowledge, a law which made a criminal offense
of such a disease would doubtless be universally thought
to be an infliction of cruel and unusual punishment."
The question under this principle, then, is whether
there are objective indicators from which a court can
conclude that contemporary society considers a severe
punishment unacceptable. Accordingly, the judicial
Louisiana ex rel. Francis v. Resweber, supra, is instructive. He
warned "against finding in pcr,onal disapproval a reflection of more
or less prevailing condemnation" and against "enforcing ... private
view[s] rather than that consensus of society's opinion which, for
purposes of due process, is the standard enjoined by the Constitution."
Id., at 471. His conclusions were as follows: "I cannot
bring myself to believe that [the State's procedure] ... offends a
prin<'iplc of justice 'rooted in the traditions and conscience of our
people.'" Id., at 470. " ... I cannot say that it would be 'repugnant
to the conscience of mankind.' " / d., iit 471. Yet nowhere in
the opinion is there any explanation of how he arrived at those
conclusions.
22 Cf. Louisiana ex rel. Francis v. Resweber, supra, at 463: "The
traditional humanity of modern Anglo-American law forbids the
infliction of unnecessary pain in the execution of the death sentence."
FURMAN v. GEORGIA 279
238 BRENNAN, J., concurring
task is to review the history of a challenged punishment
and to examine society's present practices with respect
to its use. Legislative authorization, of course, does
not establish acceptance. The acceptability of a severe
punishment is measured, not by its availability, for it
might become so offensive to society as never to be
inflicted, but by its use.
The final principle inherent in the Clause is that a
severe punishment must not be excessive. A punishment
is excessive under this principle if it is unnecessary:
The infliction of a severe punishment by the State
cannot comport with human dignity when it is
nothing more than the pointless infliction of suffering.
If there is a significantly less severe punishment
adequate to achieve the purposes for which the
punishment is inflicted, cf. Robinson v. California, supra,
at 666; id., at 677 (DOUGLAS, J., concurring); Trop v.
Dulles, supra, at 114 (BRENNAN, J., concurring), the
punishment inflicted is unnecessary and therefore
excessive.
This principle first appeared in our cases in Mr. Justice
Field's dissent in O'Neil v. Vermont, 144 U. S.,
at 337. 23 He there took the position that:
"[The Clause] is directed, not only against punishments
of the character mentioned [ torturous punishments],
but against all punishments which by
23 It may, in fact, have appeared earlier. In Pervear v. The Commonwealth,
5 Wall., at 480, the Court stated:
"We perceive nothing excessive, or cruel, or unusual in this [punishment].
The object of the law was to protect the community against
the manifold evils of intemperance. The mode adopted, of prohibiting
under penalties the sale and keeping for sale of intoxicating liquors,
without license, is the usual mode adopted in many, perhaps, all
of the States. It is wholly within the discretion of State legislatures."
This discussion suggests that the Court viewed the punishment as
reasonably related to the purposes for which it was inflicted.
280 OCTOBER TERM, 1971
BRENNAN, J., concurring 408U.S.
their excessive length or severity are greatly disproportioned
to the offences charged. The whole inhibition
is against that which is excessive either in the
bail required, or fine imposed, or punishment inflicted."
Id., at 339-340.
Although the determination that a severe punishment
is excessive may be grounded in a judgment that it is
disproportionate to the crime,24 the more significant
basis is that the punishment serves no penal purpose
more effectively than a less severe punishment. This
view of the principle was explicitly recognized by the
Court in Weems v. United States, supra. There the
Court, reviewing a severe punishment inflicted for the
falsification of an official record, found that "the highest
punishment possible for a crime which may cause the
loss of many thousand[s] of dollars, and to prevent
which the duty of the State should be as eager as to
prevent the perversion of truth in a public document,
is not greater than that which may be imposed for
falsifying a single item of a public account." /.d., at
381. Stating that "this contrast shows more than different
exercises of legislative judgment," the Court concluded
that the punishment was unnecessarily severe
in view of the purposes for which it was imposed. Ibid.2 5
24 Mr . .Justice Field apparently based his conclusion upon an intuitive
sense that the punishment was disproportionate to the criminal's
moral guilt, although he also observed that "the punishment was
greatly beyond anything required by any humane law for the offences,"
O'Neil v. Vermont, 144 U.S., at 340. Cf. Trop v. Dulles,
356 U. S., at 99: "Since wartime desertion is punishable by death,
there can be no argument that the penalty of denationalization is
excessive in relation to the gravity of the crime."
25 "The State thereby suffers nothing and loses no power. The
purpose of punishment is fulfilled, crime is repressed by penalties of
just, not tormenting, severity, its repetition is prevented, and hope
is given for the reformation of the criminal." Weems v. United
States, 217 U. S., at 381.
FURMAN v. GEORGIA 281
238 BRENNAN, J., concurring
See also Trop v. Dulles, 356 U.S., at 111-112 (BRENNAN,
J., concurring) .26
There are, then, four principles by which we may
determine whether a particular punishment is "cruel
and unusual." The primary principle, which I believe
supplies the essential predicate for the application of the
others, is that a punishment must not by its severity be
degrading to human dignity. The paradigm violation of
this principle would be the infliction of a torturous punishment
of the type that the Clause has always prohibited.
Yet "[i] t is unlikely that any State at this moment in history,"
Robinson v. California, 370 U. S., at 666, would
pass a law providing for the infliction of such a punishment.
Indeed, no such punishment has ever been
before this Court. The same may be said of the other
principles. It is unlikely that this Court will confront
a severe punishment that is obviously inflicted in wholly
arbitrary fashion; no State would engage in a reign of
blind terror. Nor is it likely that this Court will be
called upon to review a severe punishment that is clearly
and totally rejected throughout society; no legislature
would be able even to authorize the infliction of such a
punishment. Nor, finally, is it likely that this Court will
have to consider a severe punishment that is patently unnecessary;
no State today would inflict a severe punishment
knowing that there was no reason whatever for doing
so. In short, we are unlikely to have occasion to
determine that a punishment is fatally offensive under
any one principle.
26 The principle that a severe punishment must not be excessive
does not, of course, mean that a severe punishment is
constitutional merely because it is necessary. A State could not
now, for example, inflict a punishment condemned by history, for
any such punishment, no matter how necessary, would be intolerably
offensive to human dignity. The point is simply that, the unnecessary
infliction of suffering is also offensive to human dignity.
282 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
Since the Bill of Rights was adopted, this Court has
adjudged only three punishments to be within the prohibition
of the Clause. See Weems v. United States,
217 U. S. 349 (1910) ( 12 years in chains at hard and
painful labor); Trap v. Dulles, 356 U.S. 86 (1958) (expatriation);
Robinson v. California, 370 U.S. 660 (1962)
(imprisonment for narcotics addiction). Each punishment,
of course, was degrading to human dignity, but of
none could it be said conclusively that it was fatally
off en,sive under one or the other of the principles.
Rather, these "cruel and unusual punishments" seriously
implicated several of the principles, and it was
the application of the principles in combination that
supported the judgment. That, indeed, is not surprising.
The function of these principles, after all, is
simply to provide means by which a court can determine
whether a challenged punishment comports with human
dignity. They are, therefore, interrelated, and in
most cases it will be their convergence that will justify
the conclusion that a punishment is "cruel and unusual."
The test, then, will ordinarily be a cumulative
one: If a punishment is unusually severe, if there
is a strong probability that it is inflicted arbitrarily,
if it is substantially rejected by contemporary society,
and if there is no reason to believe that it serves any
penal purpose more effectively than some less severe
punishment, then the continued infliction of that punishment
violates the command of the Clause that the State
may not inflict inhuman and uncivilized punishments
upon those convicted of crimes.
III
The punishment challenged in these cases is death.
Death, of course, is a "traditional" punishment, Trop v.
Dulle,s, supra, at 100, one that "has been employed
throughout our history," id., at 99, and its constituFURMAN
v. GEORGIA 283
238 BRENNAN, J., concurring
tional background is accordingly an appropriate subject
of inquiry.
There is, first, a textual consideration raised by the
Bill of Rights itself. The Fifth Amendment declares
that if a particular crime is punishable by death, a
person charged with that crime is entitled to certain
procedural protections.21 We can thus infer that the
Framers recognized the existence of what was then a common
punishment. We cannot, however, make the further
inference that they intended to exempt this particular
punishment from the express prohibition of the Cruel and
Unusual Punishments Clause.2" Nor is there any indication
in the debates on the Clause that a special exception
was to be made for death. If anything, the indication is to
the contrary, for Livermore specifically mentioned death
as a candidate for future proscription under the Clause.
See supra, at 262. Finally, it does not advance analysis
to insist that the Framers did not believe that adoption
27 The Fifth Amendment provides: "No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury ... ; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb; ... nor be deprived of life, liberty, or property, without due
process of law .... " (Emphasis added.)
28 No one, of course, now contends that the l'eference in thP
Fifth Amendment to "jeopardy of ... limb" provides perpetual constitutional
sanction for snch corporal punishments as branding and
earcropping, which were common punishments when the Bill of
Rights was adopted. But cf. n. 29, infra. As the California Supreme
Court pointed out with respect to the California Constitution:
"The Constitution expressly proscribes cruel or unusual punishments.
It would be mere speculation and conjecture to ascribe to the framers
an intent to exempt capital punishment from the compass of that
provision solely because at a time when the death penalty was commonly
accepted they provided elsewhere in the Constitution for
special safeguards in its application." People v. Anderson, 6 Cal. 3d
628, 639, 493 P. 2d 880, 887 ( 1972).
284 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
of the Bill of Rights would immediately prevent the
infliction of the punishment of death; neither did they
believe that it would immediately prevent the infliction
of other corporal punishments that, although common
at the time, seen. 6, supra, are now acknowledged to be
impermissible. 29
There is also the consideration that this Court has decided
three cases involving constitutional challenges to
particular methods of inflicting this punishment. In Wilkerson
v. Utah, 99 U.S. 130 (1879), and In re Kemmler,
136 U.S. 436 (1890), the Court, expressing in both cases
the since-rejected "historical" view of the Clause, see
supra, at 264-265, approved death by shooting and death
by electrocution. In Wilkerson, the Court concluded
that shooting was a common method of execution, see
supra, at 275-276; 30 in Kemmler, the Court held that the
Clause did not apply to the States, 136 U.S., at 447-449.31
29 Cf. McGautha v. California, 402 U.S. 183,226 (1971) (separate
opinion of Black, J.) :
"The [Clause] forbids 'cruel and unusual punishments.' In my
view, these words cannot be read to outlaw capital punishment because
that penalty was in common use and authorized by law here
and in the countries from which our ancestors came at the time the
[Clause] was adopted. It is inconceivable to me that the framers
intended to end capital punishment by the [Clause]."
Under this view, of course, any punishment that was in common use
in 1791 is forever exempt from the Clause.
30 The Court expressly noted that the constitutionality of the
punishment itself was not challenged. Wilkerson v. Utah, 99 U. S.,
at 136-137. Indeed, it may be that the ·only contention made
was that, in the absrnce of statutory sanction, the sentencing "court
possessed no authority to prescribe the mode of execution." Id.,
at 137.
31 Cf. McElvaine v. Brush, 142 U. S. 155, 158- 159 (1891):
"We held in the case of Kemmler ... that as the legislat.urf' of the
State of Now York had determined that [electrocution] did not inflict
cruel and unusual punishment, and its courts had sustained that
FURMAN v. GEORGIA 285
238 BRENNAN, J., concurring
In Louisiana ex rel. Francis v. Resweber, supra, the Court
approved a second attempt at electrocution after the first
had failed. It was said that "[t]he Fourteenth [Amendment]
would prohibit by its due process clause execution
by a state in a cruel manner," 329 U. S., at 463, but
that the abortive attempt did not make the "subsequent
execution any more cruel in the constitutional
sense than any other execution," id., at 464.3
~ These
three decisions thus reveal that the Court, while ruling
upon various methods of inflicting death, has assumed
in the past that death was a constitutionally permissible
punishment.33 Past assumptions, however, are
not sufficient to limit the scope of our examination of this
punishment today. The constitutionality of death itself
under the Cruel and Unusual Punishments Clause is before
this Court for the first time; we cannot avoid the
question by recalling past cases that never directly
considered it.
The question, then, is whether the deliberate infliction
of death is today consistent with the command of the
Clause that the State may not inflict punishments that
do not comport with human dignity. I will analyze
the punishment of death in terms of the principles
determination, we were unable to perceive that the State had thereby
abridged the privileges or immunities of petitioner or deprived him
of due process of law."
32 It was also asserted that the Constitution prohibits "cruelty inherent
in the method of punishment," but does not prohibit "the
necessary suffering involved in any method employed to extii,guish
life humanely." 329 U. S., at 464. No authority was cited for this
assertion, and, in any event, the distinction drawn appears to be
meaningless.
33 In a nondeath case, Trop v. Didles, it was said thrtt "in a day
when it is still widely accepted, [death] cannot be said to violate
the constitutional concept of cruelty." 356 U. S., at 99 (emphasis
added). This statement, of course, left open the future constitutionality
of the punishment..
286 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
set out above and the cumulative test to which they
lead: It is a denial of human dignity for the State arbitrarily
to subject a person to an unusually severe punishment
that society has indicated it does not regard
as acceptable, and that cannot be shown to serve any
penal purpose more effectively than a significantly less
drastic punishment. Under these principles and this
test, death is today a "cruel and unusual" punishment.
Death is a unique punishment in the United States.
In a society that so strongly affirms the sanctity of life,
not surprisingly the common view is tha.t death is the
ultimate sanction. This natural human feeling appears
all about us. There has been no national debate about
punishment, in general or by imprisonment, comparable
to the debate about the punishment of death. No other
punishment has been so continuously restricted, see
infra, at 296-298, nor has any State yet abolished
prisons, as some have abolished this punishment. And
those States that still inflict death reserve it for the most
heinous crimes. Juries, of course, have always treated
death cases differently, as have governors exercising their
commutation powers. Criminal defendants are of the
same view. "As all practicing lawyers know, who have
defended persons charged with capital offenses, of ten the
only goal possible is to a.void the death penalty." Griffin
v. Illfooi,s, 351 U. S. 12, 28 (1956) (Burton and
Minton, JJ., dissenting). Some legislatures have required
particular procedures, such as two-stage trials and
automatic appeals, applicable only in death cases. "It
is the universal experience in the administration of criminal
justice tha.t those charged with capital offenses are
granted special considerations." Ibid. See Williams v.
Florida, 399 U. S. 78, 103 (1970) (all States require
juries of 12 in death cases). This Court, too, almost
FURMAN v. GEORGIA 287
238 BRENNAN, J., concurring
always treats death cases as a class apart.3
' And the
unfortunate effect of this punishment upon the functioning
of the judicial process is well known; no other
punishment has a similar effect.
The only explanation for the uniqueness of death is
its extreme severity. Death is today an unusually severe
punishment, unusual in its pain, in its finality, and in
its enormity. No other existing punishment is comparable
to death in terms of physical and mental suffering.
Although our information is not conclusive, it appears
that there is no method available that guarantees
an immediate and painless death.35 Since the discon-
3• "That life is at stake is of course another important factor in
creating the extraordinary situation. The difference between capital
and non-capital offenscs is the basis of differentiation in law in diverse
ways in which the distinction becomes relevant." Williams v.
Georgia, 349 U. S. 375, 391 (1955) (Frankfurter, J.). "When the
penalty is death, we, like state court judges, are tempted to strain
the evidence and even, in close cases, the law in order to give a
doubtfully condemned man another chance." Stein v. New York,
346 U. S. 156, 19G (1953) (Jackson, J.). "In death cases doubts
such as those presented here should be resolved in favor of the accused."
Andres v. United States, 333 U. S. 740, 752 (1948) (Reed,
,J.). Mr. Justice Harlan expressed the point strongly: "I do not
concede that whatever process is 'due' an offender faced with a fine
or a prison sentence necessarily satisfies the requirements of the
Constitution in a capital case. The distinction is by no means
novel, ... nor is it negligible, being literally that between life and
death." Reid v. Covert, 354 U. S. I, 77 (1957) (concurring in result).
And, of course, for many years this Court distinguished death
cases from all others for purposes of the constitutional right to counsel.
See Powell v. Alabama, 287 U. S. 45 (1932); Betts v. Brady,
316 U.S. 455 (1942); Bute v. Illinois, 333 U.S. 640 (1948).
35 See Report of Royal Commission on Capital Punishment 1949-
!95a, ,r,r 700-789, pp. 246-273 (1953); Hearings on S. 1760 befor<'
the Subcommittee on Criminal Laws and Procedures of the Senate
Committee on the .Judiciary, 90th Cong., 2d Sess., 19-21 (1968)
(testimony of Clinton Duffy); H. Barnes & N. Teeters, New Horizons
288 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
tinuance of flogging as a constitutionally permissible
punishment, Jackson v. Bishop, 404 F. 2d 571 (CA8
1968), death remains as the only punishment that may
involve the conscious infliction of physical pain. In
addition, we know that mental pain is an inseparable
part of our practice of punishing criminals by death, for
the prospect of pending execution exacts a frightful toll
during the inevitable long wait between the imposition
of sentence and the actual infliction of death. Cf. Ex
parte Medley, 134 U. S. 160, 172 (1890). As the California
Supreme Court pointed out, "the process of carrying
out a verdict of death is often so degrading and
brutalizing to the human spirit as to constitute psychological
torture." People v. Anderson, 6 Cal. 3d 628, 649,
493 P. 2d 880, 894 (1972)_:rn Indeed, as Mr. Justice
Frankfurter noted, "the onset of insanity while awaiting
in Criminology 306-309 (3d ed. 1959); C. Chessman, Trial by Ordeal
195- 202 (1955); M. DiSallc, The Power of Life and Death 84-
85 (1965); C. Duffy & A. HirschbNg, 88 Men and 2 Wom('ll 18- 14
(1962); B. Eshelman, Death Row Chaplain 26-29, 101-104, 159-164
(1962); R. Hammrr, Between Life and Death 208--212 (1969) ; K.
Lamott, Chronicles of San Quentin 228-231 (1961); L. Lawes, Life
and Death in Sing- Sing 170--171 (1928); Rubin, The SnprPme Court,
Cruel and Unusual Punishment, and the Death Penalty, 15 Crime
& Delin. 121, 128-129 (1969); Comment, The Death Penalty
Cases, 56 Calif. L. Rev. 1268, 1338-1341 (1968); Brief amici curiae
filed by James V. Bennett, Clinton T. Duffy, Robert G. Sarver,
Harry C. Tinsley, and Lawrence E. Wilson 12-14.
3"Sce Barnes & Teeters, supra, at 309-311 (3d eel. 1959); Camus,
Retlectio11s on the Guillotine, in A. Camus, Resistance, Rebellion,
and Death 131, 151- 156 (1960); C. Duffy & A. Hirschberg, supra,
at 68-70, 254 ( 1962); Hammer, supra, at 222- 2:~5, 244- 250, 269- 272
( 1969); S. Rubin, The Law of Crimin11I Correction :340 ( 1963);
Blnestone & l\lrGahee, Rraction to Extreme Stress : Impending
Death by Exrention, 119 Amer . .T. Psyd1iatry 393 ( 1962) ; Gottli<'b,
Capital Punishment, 15 Crime & Dclin. l, 8--IO (1969); \Vest,
Medicine and Capital Punishment, in Hearings on S. 1760 before the
Subcommittee 011 Criminal Laws and Procrclmes of the Senate ComFURMAN
v. GEORGIA 289
238 BRENNAN, J., concurring
execution of a death sentence is not a rare phenomenon."
Solesbee v. Balkcom, 339 U. S. 9, 14 (1950) (dissenting
opinion). The "fate of ever-increasing fear and distress"
to which the expatriate is subjected, Trop v.
Dulles, 356 U. S., at 102, can only exist to a greater degree
for a person confined in prison awaiting death.3
;
The unusual severity of death is manifested most clearly
in its finality and enormity. Death, in these respects, is
in a class by itself. Expatriation, for example, is a
punishment that "destroys for the individual the political
existence that was centuries in the development,"
that "strips the citizen of his status in the national and
international political community," and that puts "[h]is
very existence" in jeopardy. Expatriation thus inherently
entails "the total destruction of the individual's
status in organized society." Id., at 101. "In short,
the expatriate has lost the right to have rights." Id.,
at 102. Yet, demonstrably, expatriation is not "a fate
worse than death." Id., at 125 (Frankfurter, J., dissenting).
3
" Although death, like expatriation, destroys the
mittee on the Judiciary, 90th Cong., 2d Sess., 124 (1968); Ziferstcin,
Crime and Punishment, The Center Magazine 84 (Jan. 1968); Comment,
The Death Penalty Cases, 56 Calif. L. Rev. 1268, 1342 ( 1968);
Nate, Mental Suffering under Sentence of Death: A Cruel and
Unusual Punishment, 57 Iowa L. Rev. 814 (1972).
37 The State, of course, does not purposely impose the lengthy waiting
period in order to inflict further suffering. The impact upon the
individual is not the less severe on that account. It is no answer
to assert t-hat long delays exist only because condemned criminals
avail themselves of their full panoply of legal rights. The right not
to be subjected to inhuman treatment cannot, of course, be played
off against the right to pursue due process of law, but, apart from
that, the plain truth is that it is society that demands, even against
the wishes of the criminal, that all legal avenues be explored before
the execution is finally carried out.
38 It was recognized in Trop itself that expatriation is a "punishment
short of death." 356 U. S., at 99. Death, however, was
distinguished on the ground that it was "still widely accepted." Ibid.
290 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
individual's "political existence" and his "status in organized
society," it does more, for, unlike expatriation,
death also destroys "[h]is very existence." There is,
too, at least the possibility that the expatriate will in
the future regain "the right to have rights." Death
forecloses even that possibility.
Death is truly an awesome punishment. The calculated
killing of a human being by the State involves,
by its very nature, a denial of the executed person's
humanity. The contrast with the plight of a person punished
by imprisonment is evident. An individual in prison
does not lose "the right to have rights." A prisoner retains,
for example, the constitutional rights to the free
exercise of religion, to be free of cruel and unusual punishments,
and to treatment as a "person" for purposes
of due process of law and the equal protection of the
laws. A prisoner remains a member of the human family.
Moreover, he retains the right of access to the courts.
His punishment is not irrevocable. Apart from the
common charge, grounded upon the recognition of human
fallibility, that the punishment of death must inevitably
be inflicted upon innocent men, we know that death has
been the lot of men whose convictions were unconstitutionally
secured in view of later, retroactively applied,
holdings of this Court. The punishment itself may have
been unconstitutionally inflicted, see Witherspoon v.
Illinois, 391 U. S. 510 (1968), yet the finality of death
precludes relief. An executed person has indeed "lost
the right to have rights." As one 19th century proponent
of punishing criminals by death declared, "When
a man is hung, there is an end of our relations with
him. His execution is a way of saying, 'You are not
fit for this \-vorld, take your chance elsewhere.'" 30
39 Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763
(1864).
FURMAN v. GEORGIA 291
238 BRENNAN, .T., concurring
In comparison to all other punishments today, then,
the deliberate extinguishment of human life by the State
is uniquely degrading to human dignity. I would not
hesitate to hold, on that ground alone, that death is
today a "cruel and unusual" punishment, were it not
that death is a punishment of longstanding usage and
acceptance in this country. I therefore turn to the
second principle-that the State may not arbitrarily
inflict an unusually severe punishment.
The outstanding characteristic of our present practice
of punishing criminals by death is the infrequency with
which we resort to it. The evidence is conclusive that
death is not the ordinary punishment for any crime.
There has been a steady decline in the infliction of
this punishment in every decade since the 1930's, the
earliest period for which accurate statistics are available.
In the 1930's, executions averaged 167 per year;
in the 1940's, the average was 128; in the 1950's, it was
72; and in the years 1960--1962, it was 48. There have
been a total of 46 executions since then, 36 of them in
1963-1964!0 Yet our population and the number of
capital crimes committed have increased greatly over
the past four decades. The contemporary rarity of the
infliction of this punishment is thus the end result of a
long-continued decline. That rarity is plainly revealed
by an examination of the years 1961-1970, the
last 10-year period for which statistics are available.
During that time, an average of 106 death sentences
•° From 1930 to 1939: 155, 153, 140, 160, 168, 199, 195, 147, 190,
160. From 1940 to 1949: 124, 123, 147, 131, 120, 117, 131, 153, 119,
119. From 1950 to 1959: 82, 105, 83, 62, 81, 76, 65, 65, 49, 49.
From 1960 to 1967: 56, 42, 47, 21, 15, 7, 1, 2. Department of .Justice,
National Prisoner Statistics No. 46, Capital Punishment 1930-1970,
p. 8 (Aug. 1971). The last cxe>cution in the United States took place
on June 2, 1967. Id., at 4.
292 OCTOBER TERM, 1971
BRENNAN, J., concurriniz; 408U.S.
was imposed each year.41 Not nearly that number.
however, could be carried out, for many were precluded
by commutations to life or a term of years/2 transfers
to mental institutions because of insanity/3 resentences
to life or a term of years, grants of new trials and orders
for resentencing, dismissals of indictments and reversals
of convictions, and deaths by suicide and natural causes. 44
On January 1, 1961, the death row population was 219;
on December 31, 1970, it was 608; during that span,
there were 135 executions:~ Consequently, had the 389
additions to death row also been executed, the annual
average would have been 52. 40 In short, the country
41 1961-140; 1962-103; 1963-93; 1964--106; 1965--86; 1966---
rn~; 1967-~: 196.l{--102: 1969-97; 1970---127. Id., at 9.
42 Commutations averaged about 18 per year. 1961-17; 1962-
27; 1963-16; 1964--9; 1965--19; 1966--17; 1967-13; 1968--16;
1969-20; 1970---29. Ibid.
43 Transfers to mental institutions averaged about three per year.
1961-3; 1962--4; 1963-1; 1964-3; 1965--4; 1966---3; 1967-3;
1968-2; 1969-1; 1970---5. Ibid.
44 These four method~ of disposition average<! about 44 per year.
1961-31, 1962-30; 1963-32; 1964--58; 1965--39; 1966--33;
1967-5,1; 196~-59; 1969-64; 1970---42. Ibid. Specific figures
are available starting with 1967. Resentences: 1967-7; 1968-18;
1969-12; 1970---14. Grants of new trials and orders for r~entencing:
1967-31; 196~-21; 1969-13; 1970--9. Di~mis:;als of
indictmmts and reverbals of convictions: 1967-12; 1968-19;
1969-.13; 1970---17. DC'ath.~ by ;:uicide and natural causes: 1967-
2; 1968--1; 1969-5; 1970---2. National Prisoner Statistics Ko. 42,
Executions 1930-1967, p. 13 (June 1968); National Prisonf'r Statistics
No. 45, Capital Punishment 1930-1968, p. 12 (Aug. 1969);
National Prisoner Statistics, supra, n. 40, at 14-15.
• 5 Id., at 9.
' 6 During that 10-year period, 1,177 prisoners entered death row,
including 120 who were returned following new trials or treatment
at mental institutions. There were 653 dispositions other than by
FURMAN v. GEORGIA 293
238 BRENNAN, J., concurring
might, at most, have executed one criminal each week.
In fact, of course, far fewer were executed. Even before
the moratorium on executions began in 1967, executions
totaled only 42 in 1961 and 47 in 1962, an average of less
than one per week; the number dwindled to 21 in 1963,
to 15 in 1964, and to seven in 1965; in 1966, there was
one execution, and in 1967, there were two.47
When a country of over 200 million people inflicts
an unusually severe punishment no more than 50 times a
year, the inference is strong that the punishment is not
being regularly and fairly applied. To dispel it would
indeed require a clear showing of nonarbitrary infliction.
Although there are no exact figures available, we
know that thousands of murders and rapes are committed
annually in States where death is an authorized
punishment for those crimes. However the rate
of infliction is characterized-as "freakishly" or "spectacularly"
rare, or simply as rare---it would take the
purest sophistry to deny that death is inflicted in only
a minute fraction of these cases. How much rarer, after
all, could the infliction of death be?
When the punishment of death is inflicted in a trivial
number of the cases in which it is legally available, the
conclusion is virtually inescapable that it is being in,-
flicted arbitrarily. Indeed, it smacks of little more than
a lottery system. The States claim, however, that this
rarity is evidence not of arbitrariness, but of informed
selectivity: Death is inflicted, they say, only in "extreme"
cases.
Informed selectivity, of course, is a value not to be
denigrated. Yet presumably the States could make precisely
the same claim if there were 10 executions per
execution, leaving 524 prisoners who might have been executed, of
whom 135 actually wne. Ibid.
47 Id., at 8.
294 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 u. s.
year, or five, or even if there were but one. That
there may be as many as 50 per year does not strengthen
the claim. When the rate of infliction is at this low
level, it is highly implausible that only the worst criminals
or the criminals who commit the worst crimes are selected
for this punishment. No one has yet suggested a rational
basis tha.t could differentiate in those terms the
few who die from the many who go to prison. Crimes
and criminals simply do not admit of a distinction that
can be drawn so finely as to explain, on that ground,
the execution of such a tiny sample of those eligible.
Certainly the laws that provide for this punishment do
not attempt to draw that distinction; all cases to 1 vhich
the laws apply are necessarily "extreme." Nor is the
distinction credible in fact. If, for example, petitioner
Furman or his crime illustrates the "extreme," then
nearly all murderers and their murders are also "extreme."
48 Furthermore, our procedures in death cases,
• 8 The victim surprised Furman in the act of burglarizing the
victim's home in the middle of the night. While escaping, Furman
killed the victim with one pistol shot fired through the closed kitchen
door from the outside. At the trial, Furman gave his version of the
killing:
"They got me charged with murder and I admit, I admit going to
these folks' home and they did caught me in there and I was coming
back out, backing up and there was a wire down there on the floor.
I was coming out backwards and foll back and I didn't intend to kill
nobody. I didn't know they was behind the door. The gun went
off and I didn't know nothing about no murder until they arrested
me, and when the gun went off I was down on the floor and I got up
and ran. That's all to it." App. 54-55.
The Georgia Supreme Court accepted that version:
"The admission in open court by the accused ... that during the
period in which he was involved in the commission of a criminal act
at the home of the deceased, he accidentally tripped over a wire in
leaving the premises causing the gun to go off, together with other
facts and circumstances surrounding the death of the deceased by
violent means, was sufficient to support the verdict. of guilty of
FURMAN v. GEORGIA 295
238 BRENNAN, J., concurring
rather than resulting in the selection of "extreme" cases
for this punishment, actually sanction an arbitrary selection.
For this Court has held that juries may, as they
do, make the decision whether to impose a death sentence
wholly unguided by standards governing that decision.
McGautha v. California, 402 U. S. 183, 196-
208 ( 1971). In other words, our procedures are not
constructed to guard against the totally capricious selection
of criminals for the punishment of death.
Although it is difficult to imagine what further facts
·would be necessary in order to prove that death is, as
my Brother STEWART puts it, "wantonly and ... freakishly"
inflicted, I need not conclude that arbitrary infliction
is patently obvious. I am not considering this punishment
by the isolated light of one principle. The
probability of arbitrariness is sufficiently substantial that
it can be relied upon, in combination with the other principles,
in reaching a judgment on the constitutionality of
this punishment.
When there is a strong probability that an unusually
severe and degrading punishment is being inflicted arbitrarily,
we may well expect that society will disapprove
of its infliction. I turn, therefore, to the third principle.
An examination of the history and present operation
of the American practice of punishing criminals
by death reveals that this punishment has been almost
totally rejected by contemporary society.
I cannot add to my Brother MARSHALL's comprehensive
treatment of the English and American history of
murder .... " Furman v. State, 225 Ga. 253, 254, 167 S. E. 2d 628,
629 (1969).
About Furman himself, the jury knew only that he was black and
that., according to his statement at trial, he was 26 years old and
worked at "Superior Upholstrry." App. 54. It took the jury one
hour and 35 minutes to return a verdict of guilt and a sentence of
death. Id., at 64-65.
296 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
this punishment. I emphasize, ho,wever, one significant
conclusion that emerges from that history. From the
beginning of our Nation, the punishment of death has
stirred acute public controversy. Although pragmatic
arguments for and against the punishment have been
frequently advanced, this longstanding and heated controversy
cannot be explained solely as the result of cliff
erences over the practical wisdom of a particular government
policy. At bottom, the battle has been waged
on moral grounds. The country has debated whether
a society for which the dignity of the individual is the
supreme value can, without a fundamental inconsistency,
follow the practice of deliberately putting some of its
members to death. In the United States, as in other
nations of the western world, "the struggle about this
punishment has been one between ancient and deeply
rooted beliefs in retribution, atonement or vengeance on
the one hand, and, on the other, beliefs in the personal
value and dignity of the common man that were born
of the democratic movement of the eighteenth century,
as well as beliefs in the scientific approach to an understanding
of the motive forces of human conduct, which
are the result of the growth of the sciences of behavior
during the nineteenth and twentieth centuries." 49 It is
this essentially moral conflict that forms the backdrop
for the past changes in and the present operation of our
system of imposing death as a punishment for crime.
Our practice of punishing criminals by death has
changed greatly over the years. One significant change
has been in our methods of inflicting death. Although
this country never embraced the more violent and repulsive
methods employed in England, we did for a long
time rely almost exclusively upon the gallows and the
firing squad. Since the development of the supposedly
49 T. Sellin, The Death Penalty, A Report for the Model Penal
Code Project of the American Law Institute 15 (1959).
FURMAN v. GEORGIA 297
238 BRENNAN, J., concurring
more humane methods of electrocution late in the 19th
century and lethal gas in the 20th, however, hanging
and shooting have virtually ceased.50 Our concern for
decency and human dignity, moreover, has compelled
changes in the circumstances surrounding the execution
itself. No longer does our society countenance the spectacle
of public executions, once thought desirable as a
deterrent to criminal behavior by others. Today we
reject public executions as debasing and brutalizing to
us all.
Also significant is the drastic decrease in the crimes
for which the punishment of death is actually inflicted.
While esoteric capital crimes remain on the books, since
1930 murder and rape have accounted for nearly 99%
of the total executions, and murder alone for about
87%.51 In addition, the crime of capital murder has
itself been limited. As the Court noted in M cGautha
v. California, 402 U. S., at 198, there was in this
country a "rebellion against the common-law rule imposing
a mandatory death sentence on all convicted murderers."
Initially, that rebellion resulted in legislative
definitions that distinguished between degrees of murder,
retaining the mandatory death sentence only for murder
in the first degree. Yet "[t]his new legislative criterion
for isolating crimes appropriately punishable by death
soon proved as unsuccessful as the concept of 'malice
aforethought,'" ibid., the common-l~w means of separating
murder from manslaughter. Not only was the
distinction between degrees of murder confusing and
uncertain in practice, but even in clear cases of firstdegree
murder juries continued to take the law into
50 Eight States still employ hanging as the method of execution,
and one, Utah, also employs shooting. These nine States have accounted
for less than 3% of the executions in the United States since
1930. National Prisoner Statistics, supra, n. 40, at 10--11.
51 Id., at 8.
298 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
their own hands: if they felt that death was an inappropriate
punishment, "they simply refused to convict of
the capital offense." Id., at 199. The phenomenon of
jury nullification thus remained to counteract the rigors
of mandatory death sentences. Bowing to reality, "legislatures
did not try, as before, to refine further the
definition of capital homicides. Instead they adopted
the method of forthrightly granting juries the discretion
which they had been exercising in fact." Ibid. In consequence,
virtually all death sentences today are discretionarily
imposed. Finally, it is significant that nine
States no longer inflict the punishment of death under
any circumstances,52 and five others have restricted it to
extremely rare crimes.53
52 Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon,
West Virginia, and Wisconsin have abolished death as a punishment
for crimes. Id., at 50. In addition, thr California Suprrm<'
Court held the punishment unconstitutional under the state counterpart
of the Cruel and Unusual Punishments Clause. People v.
Anderson, 6 Cal. 3d 628, 493 P. 2d 880 (1972).
53 New Mexico, New York, North Dakota, Rhode Island, and
Vermont have almost totally abolished death as a punishment for
rrimes. National Prisoner Statistics, supra, n. 40, at 50. Indeed,
these five States might well be considered de facto abolition States.
North Dakota and Rhode Island, which restricted the punishment in
1915 and 1852 respectively, have not carried out an execution since at
least 1930, id., at. 10; nor have there been any executions in New
York, Vermont, or New Mexico since they restricted the punishment
in 1965, 1965, and 1969 respectively, id., at 10- 11. As of
January 1, 1971, none of the five States had even a single prisoner
under sentence of de.'lth. Id., at 18-19.
In addition, six States, while retaining the punishment on the
books in generally applicable form , have made virtually no use of it.
Since 1930, Idaho, Montana, Nebraska, New Hampshire, South Dakota,
and Wyoming have carried out a total of 22 executions. Id.,
at 10-11. As of January 1, 1971, these six States had a total of three
prisoners under sentences of death. Id., at 18-19. Hence, assuming
25 executions in 42 yrars, earh State averaged about one execution
every 10 years.
FURMAN v. GEORGIA 299
238 BRENNAN, J., concurring
Thus, although "the death penalty has been employed
throughout our history," Trop v. Dulle,<;, 356 U. S.,
at 99, in fact the history of this punishment is one
of successive restriction. What was once a common
punishment has become, in the context of a continuing
moral debate, increasingly rare. The evolution
of this punishment evidences, not that it is an
inevitable part of the American scene, but that it has
proved progressively more troublesome to the national
conscience. The result of this movement. is our current
system of administering the punishment, under which
death sentences are rarely imposed and death is even
more rarely inflicted. It is, of course, "We, the People"
who are responsible for the rarity both of the imposition
and the carrying out of this punishment. Juries,
"express[ing] the conscience of the community on the
ultimate question of life or death," Witherspoon v. Illinois,
391 U. S., at 519, have been able to bring themselves
to vote for death in a mere 100 or so cases
among the thousands tried each year where the punishment
is available. Governors, elected by and acting
for us, have regularly commuted a substantial number
of those sentences. And it is our society that insists
upon due process of law to the end that no person
will be unjustly put to death, thus ensuring that many
more of those sentences will not be carried out. In
sum, we have made death a rare punishment today.
The progressive decline in, and the current rarity of,
the infliction of death demonstrate that our society seriously
questions the appropriateness of this punishment
today. The States point out that many legislatures authorize
death as the punishment for certain crimes and
that substantial segments of the public, as reflected in
opinion polls and referendum votes, continue to support
it. Yet the availability of this punishment through
statutory authorization, as well as the polls and refer300
OCTOBER TERM, 1971
BRENNAN, J., concurring 408 U.S.
enda, which amount simply to approval of that authorization,
simply underscores the extent to which our society
has in fact rejected this punishment. When an unusually
severe punishment is authorized for wide-scale
application but not, because of society's refusal, inflicted
save in a few instances, the inference is compelling that
there is a deep-seated reluctance to inflict it. Indeed,
the likelihood is great that the punishment is tolerated
only because of its disuse. The objective indicator of
society's view of an unusually severe punishment is
what society does with it, and today society will inflict
dea.th upon only a small sample of the eligible
criminals. Rejection could hardly be more complete
without becoming absolute. At the very least, I must
conclude that contemporary society views this punishment
with substantial doubt.
The final principle to be considered is that an unusually
severe and degrading punishment may not be
excessive in view of the purposes for which it is inflicted.
This principle, too, is related to the others.
When there is a strong probability that the State
is arbitrarily inflicting an unusually severe punishment
that is subject to grave societal doubts, it is
likely also that the punishment cannot be shown to
be serving any penal purpose that could not be served
equally well by some less severe punishment.
The States' primary claim is that death is a necessary
punishment because it prevents the commission of capital
crimes more effectively than any less severe punishment.
The first part of this claim is that the infliction
of death is necessary to stop the individuals executed
from committing further crimes. The sufficient answer
to this is that if a criminal convicted of a capital crime
poses a danger to society, effective administration of the
State's pardon and parole laws can delay or deny his
release from prison, and techniques of isolation can elimFURMAN
v. GEORGIA 301
238 BRENNAX, J., concurring
inate or minimize the danger while he remains confined.
The more significant argument is that the threat of
death prevents the commission of capital crimes because
it deters potential criminals who would not be deterred
by the threat of imprisonment. The argument is not
based upon evidence that the threat of death is a superior
deterrent. Indeed, as my Brother MARSHALL establishes,
the available evidence uniformly indicates, although it
does not conclusively prove, that the threat of death
has no greater deterrent effect than the threat of
imprisonment. The States argue, however, that they are
entitled to rely upon common human experience, and that
experience, they say, supports the conclusion that death
must be a more effective deterrent than any less severe
punishment. Because people fear death the most, the
argument runs, the threat of death must be the greatest
deterrent.
It is important to focus upon the precise import of
this argument. It is not denied that many, and probably
most, capital crimes cannot be deterred by the threat
of punishment. Thus the argument can apply only to
those who think rationally about the commission of
capital crimes. Particularly is that true when the potential
criminal, under this argument, must not only
consider the risk of punishment . but also distinguish between
two possible punishments. The concern, then, is
with a particular type of potential criminal, the rational
person who will commit a capital crime knowing that
the punishment is long-term imprisonment, which may
well be for the rest of his life, but will not commit the
crime knowing that the punishment is death. On the
face of it, the assumption that such persons exist is
imp la usib le.
In any event, this argument cannot be appraised in the
abstract. We are not presented with the theoretical
question whether under any imaginable circumstances the
302 OCTOBER TERM, 1971
BRENNAN, J., concurring 408U. S.
threat of death might be a greater deterrent to the commission
of capital crimes than the threat of imprisonment.
We are concerned with the practice of punishing
criminals by death as it exists in the United States
today. Proponents of this argument necessarily admit
that its validity depends upon the existence of a system
in which the punishment of death is invariably and
swiftly imposed. Our system, of course, satisfies neither
condition. A rational person contemplating a murder
or rape is confronted, not with the certainty of a speedy
death, but with the slightest possibility that he will
be executed in the distant future. The risk of death
is remote and improbable; in contrast, the risk of longterm
imprisonment is near and great. In short, whatever
the speculative validity of the assumption that
the threat of death is a superior deterrent, there is
no reason to believe that as currently administered
the punishment of death is necessary to deter the commission
of capital crimes. Whatever might be the case
were all or substantially all eligible criminals quickly
put to death, unverifiable possibilities are an insufficient
basis upon which to conclude that the threat of death
today has any greater deterrent efficacy than the threat
of imprisonment.04
54 There is also the more limited argument that death is a necessary
punL9hment when criminals are already serving or subject to a sentence
of life imprisonment. If the only punishment available is
further imprisonment, it is said, those criminals will have nothing
to lose by committing further crimes,. and accordingly the threat of
death is the sole deterrent. But "life" imprisonment is a misnomer
today. Rarely, if ever, do crimes carry a mandatory life sentence
without possibility of parole. That possibility ensures that criminals
do not, reach the point where further crimes are free of conSRquences.
Mor-eover, if this argument is simply an assertion that the
threat of death is a more effective deterrent than the threat of increased
imprisonment by denial of release on parole, then, as noted
above, there is simply no evidence to support it.
FURMAN v. GEORGIA 303
238 BRENNAN, J., concurring
There is, however, another aspect to the argument that
the punishment of death is necessary for the protection
of society. The infliction of death, the States urge, serves
to manifest the community's outrage at the commission
of the crime. It is, they say, a concrete public expression
of moral indignation that inculcates respect for the
law and helps assure a more peaceful community. Moreover,
we are told, not only does the punishment of death
exert this widespread moralizing influence upon community
values, it also satisfies the popular demand for
grievous condemnation of abhorrent crimes and thus prevents
disorder, lynching, and attempts by private citizens
to take the law into their own hands.
The question, however, is not whether death serves
these supposed purposes of punishment, but whether
death serves them more effectively than imprisonment.
There is no evidence whatever that utilization of imprisonment
rather than death encourages private blood
feuds and o-ther disorders. Surely if there were such
a danger, the execution of a handful of criminals
each year would not prevent it. The assertion that
death alone is a sufficiently emphatic denunciation
for capital crimes suffers from the same defect. If capital
crimes require the punishment of death in order to provide
moral reinforcement for the basic values of the community,
those values can only be undermined when death
is so rarely inflicted upon the criminals who commit the
crimes. Furthermore, it is certainly doubtful that the
infliction of death by the State does in fact strengthen
the community's moral code; if the deliberate extinguishment
of human life has any effect at all, it more
likely tends to lower our respect for life and brutalize
our values. That, after all, is why we no longer carry
out public executions. In any event, this claim simply
means that one purpose of punishment is to indicate
social disapproval of crime. To serve that purpose our
304 OCTOBER TERM, 1971
BRENNAN, J., concurring 408 u. s.
laws distribute punishments according, to the gravity
of crimes and punish more severely the crimes society
regards as more serious. That purpose cannot justify
any particular punishment as the upper limit of severity.
There is, then, no substantial reason to believe that
the punishment of death, as currently administered, is
necessary for the protection of society. The only other
purpose suggested, one that is independent of protection
for society, is retribution. Shortly stated, retribution in
this context means that criminals are put to death because
they deserve it.
Although it is difficult to believe that any State today
wishes to proclaim adherence to "naked vengeance," Trop
v. Dulles, 356 U.S., at 112 (BRENNAN, J., concurring), the
States claim, in reliance upon its statutory authorization,
that death is the only fit punishment for capital crimes
and that this retributive purpose justifies its infliction.
In the past, judged by its statutory authorization, death
was considered the only fit punishment for the crime
of forgery, for the first federal criminal statute provided
a mandatory death penalty for that crime. Act of
April 30, 1790, § 14, 1 Stat. 115. Obviously, concepts
of justice change; no immutable moral order requires
death for murderers and rapists. The claim that
death is a just punishment necessarily refers to the existence
of certain public beliefs. The claim must be
that for capital crimes death alone comports with society's
notion of proper punishment. As administered
today, however, the punishment of death cannot be
justified as a necessary means of exacting retribution
from criminals. When the overwhelming number of
criminals who commit capital crimes go to prison, it
cannot be concluded that death serves the purpose of retribution
more effectively than imprisonment. The asserted
public belief that murderers and rapists deserve
to die is flatly inconsistent with the execution of a random
FURMAN v. GEORGIA 305
238 BRENNAN, J., concurring
few. As the history of the punishment of death in this
country shows, our society wishes to prevent crime; we
have no desire to kill criminals simply to get even with
them.
In sum, the punishment of death is inconsistent with
all four principles: Death is an unusually severe and
degrading punishment; there is a strong probability that
it is inflicted arbitrarily; its rejection by contemporary
society is virtually total; and there is no reason to believe
that it serves any penal purpose more effectively than the
less severe punishment of imprisonment. The function
of these principles is to enable a court to determine
whether a punishment comports with human dignity.
Death, quite simply, does not.
IV
When this country was founded, memories of the
Stuart horrors were fresh and severe corporal punishments
were common. Death was not then a unique
punishment. The practice of punishing criminals by
death, moreover, was widespread and by and large
acceptable to society. Indeed, without developed prison
systems, there was frequently no workable alternative.
Since that time, successive restrictions, imposed against
the background of a continuing moral controversy, have
drastically curtailed the use of this punishment. Today
death is a uniquely and unusually severe punishment.
When examined by the principles applicable under the
Cruel and Unusual Punishments Clause, death stands
condemned as fatally offensive to human dignity. The
punishment of death is therefore "cruel and unusual,"
and the States may no longer inflict it as a punishment
for crimes. Rather than kill an arbitrary handful of
criminals each year, the States will confine them in
prison. "The State thereby suffers nothing and loses no
power. The purpose of punishment is fulfilled, crime
306 OCTOBER TERM, 1971
STEWART, J., concurring 408 U. S.
is repressed by penalties of just, not tormenting, severity,
its repetition is prevented, and hope is given for the
reformation of the criminal." Weems v. United States,
217 U. S., at 381.
I concur in the judgments of the Court.
MR. JUSTICE STEWART, concurring.
The penalty of death differs from all other forms of
criminal punishment, not in degree but in kind. It is
unique in its total irrevocability. It is unique in its
rejection of rehabilitation of the convict as a basic purpose
of criminal justice. And it is unique, finally, in
its absolute renunciation of all that is embodied in our
concept of humanity.
For these and other reasons, at least two of my
Brothers have concluded that the infliction of the death
penalty is constitutionally impermissible in all circumstances
under the Eighth and Fourteenth Amendments.
Their case is a strong one. But I find it unnecessary
to reach the ultimate question they would decide. See
Ash wander v. Tennessee Valley Authority, 297 U. S. 288,
347 (Brandeis, J., concurring).
The opinions of other Justices today have set out in
admirable and thorough detail the origins and judicial
history of the Eighth Amendment's guarantee against
the infliction of cruel and unusual punishments,1 and the
origin and judicial history of capital punishment.2 There
1 See dissenting opinion of THE CHIEF JusTICE, post, at 376-379 ;
concurring opinion of Mn. JUSTICE DoUGLAS, ante, at 242-244; concurring
opinion of 2\1n. JUSTICE B1u;NNAN , ante, at 258---269; concurring
opinion of MR. JUSTICE MARSHALL, post, at 316-328; dissenting
opinion of MR. JUSTICE BLACKMUN, post, at 407--409; dissenting
opinion of ]\fa. JUSTICE POWELL, post, at 421--427.
"See dissenting opinion of THE CHrnF' JUSTICE, post, at 380; concurring
opinion of MR. JUSTICE BRENNAN, ante, at 282-285; concurring
opinion of Mn. J USTICE MARSHALL, post, at 333-341 ; dissenting
opinion of MR. J USTICE POWELL, post, at 421--424.
FURMAN v. GEORGIA 307
238 STEWART, J., concurring
is thus no need for me to review the historical materials
here, and what I have to say can, therefore, be briefly
stated.
Legislatures--state and federal-have sometimes specified
that the penalty of death shall be the mandatory punishment
for every person convicted of engaging in certain
designated criminal conduct. Congress, for example, has
provided that anyone convicted of acting as a spy for the
enemy in time of war shall be put to death.3 The Rhode
Island Legislature has ordained the death penalty for
a life term prisoner who commits murder.4 Massachusetts
has passed a law imposing the death penalty upon
anyone convicted of murder in the commission of a
forcible rape.5 An Ohio law imposes the mandatory penalty
of death upon the assassin of the President of the
United States or the Governor of a State.6
If we were reviewing death sentences imposed under
these or similar laws, we would be faced with the need
to decide whether capital punishment is unconstitutional
for all crimes and under all circumstances. We would
need to decide whether a legislature-state or federalcould
constitutionally determine that certain criminal
conduct is so atrocious that society's interest in deterrence
and retribution wholly outweighs any considerations
of reform or rehabilitation of the perpetrator, and
that, despite the inconclusive empirical evidence,7 only
a 10 U. S. C. § 906.
4 R. I. Gen. Laws Ann. § 11-23-2.
5 Mass. Gen. Laws Ann., c. 265, § 2.
6 Ohio Rev. Code Ann., Tit. 29, §§ 2901.09 and 2901.10.
7 Many statistical studies-comparing crime rates in jurisdictions
with and without capital punishment and in jurisdictions before and
after abolitjon of capital punishment-have indicated that there is
little, if any, measurable deterrent effect. See H. Bedau, The Death
l'enalty in America 258-332 (1967 rev. ed.). There remains uncertainty,
however, because of the difficulty of identifying and holding
constant all other relevant variables. See Comment, The Death
308 OCTOBER TERM, 1971
STEWART, J., concurring 408U.S.
the automatic penalty of death will provide maximum
deterrence.
On that score I would say only that I cannot agree
that retribution is a constitutionally impermissible ingredient
in the imposition of punishment. The instinct
for retribution is part of the nature of man, and channeling
that instinct in the administration of criminal
justice serves an important purpose in promoting the
stability of a society governed by law. When people
begin to believe that organized society is unwilling or
unable to impose upon criminal offenders the punishment
they "deserve," then there are sown the seeds of
anarchy-of self-help, vigilante justice, and lynch law.
The constitutionality of capital punishment in the
abstract is not, however, before us in these cases. For the
Georgia and Texas Legislatures have not provided that
the death penalty shall be imposed upon all those who
are found guilty of forcible rape.8 And the Georgia Legislature
has not ordained that death shall be the automatic
punishment for murder." In a word, neither State
Penalty Cases, 56 Calif. L. Rev. 1268, 1275-1292. See also dissenting
opinion of THE CHIEF JUSTICE, post, at 395; concurring opinion
of MR. JUSTICE MARSHALL, post, at 346-354.
8 Georgia law, at the time of the conviction and sentencing of the
petitioner in No. 69-5030, left the jury a choice between the death
penalty, life imprisonment, or "imprisonment and labor in the pcnitentiary
for not less than one year nor more than 20 years." Ga.
Code Ann.§ 2n-1302 (Supp. 1971) (effective prior to .July 1, 1969).
The current Georgia provision for the punishment of forcible rape
continues to leave the same broad sentencing leeway. Ga. Crim.
Code § 26-2001 (1971 rev.) (effective July 1, 1969). Texas law,
under which the petitioner in No. 69- 5031 was sentenced, provides that
a "person guilty of rape shall be punished by death or by confinement
in the penitentiary for life, or for any term of years not less
than five." Texas Penal Code, Art. 1189.
0 Georgia law, under which the petitioner in No. 69-5003, was
sentenced, left the jury a choice between the death penalty and life
imprisonment. Ga. Code Ann. § 26-1005 (Supp. 1971) (effective
FURMAN v. GEORGIA 309
238 STEWART, J., concurring
has made a legislative determination that forcible rape
and murder can be deterred only by imposing the penalty
of death upon all who perpetrate those off enses. As MR.
JusTICE WHITE so tellingly puts it, the "legislative will
is not frustrated if the penalty is never imposed." Post,
at 311.
Instead, the death sentences now before us are the
product of a legal system that brings them, I believe,
within the very core of the Eighth Amendment's guarantee
against cruel and unusual punishments, a guarantee
applicable against the States through the Fourteenth
Amendment. Robinson v. California, 370 U.S. 660. In
the first place, it is clear that these sentences are "cruel"
in the sense that they excessively go beyond, not in degree
but in kind, the punishments that the state legislatures
have determined to be necessary. Weems v. United
States, 217 U. S. 349. In the second place, it is equally
clear that these sentences are "unusual" in the sense
that the penalty of death is infrequently imposed for
murder, and that its imposition for rape is extraordinarily
rare.10 But I do not rest my conclusion upon these two
propositions alone.
These death sentences are cruel and unusual in the
same way that being struck by lightning is cruel
and unusual. For, of all the people convicted of rapes
and murders in 1967 and 1968,11 many just as reprehensible
as these, the petitioners are among a capriciously
prior to July 1, 1969). Current Georgia law provides for similar
sentencing leeway. Ga. Crim. Code § 26-1101 (1971 rev.) (effective
,Tuly I, 1969).
10 See dissenting opinion of THE CHIE~' JusTICE, post, at 386-387,
n. 11; concurring opinion of l\fR. JusTICE BRENNAN, ante, at 291-293.
11 Petitioner Branch was sentenced to death in a Texas court on
July 26, 1967. Petitioner Furman was sentenced to death in a
Georgia court on September 20, 1968. Petitioner Jackson was sentenced
to death in a Georgia court on December 10, 1968.
310 OCTOBER TERM, 1971
WHITE, J., concurring 408U.S.
selected random handful upon whom the sentence of
death has in fact been imposed.12 My concurring Brothers
have demonstrated that, if any basis can be discerned
for the selection of these few to be sentenced to die, it
is the constitutionally impermissible basis of race.13 See
McLaughlin v. Florida, 379 U. S. 184. But racial discrimination
has not been proved,14 and I put it to one
side. I simply conclude that the Eighth and Fourteenth
Amendments cannot tolerate the infliction of a sentence
of death under legal systems that permit this unique
penalty to be so wantonly and so freakishly imposed.
For these reasons I concur in the judgments of the
Court.
MR. JUSTICE WHITE, concurring.
The facial constitutionality of statutes requmng the
imposition of the death penalty for first-degree murder,
for more narrowly defined categories of murder, or for
rape would present quite different issues under the Eighth
Amendment than are posed by the cases before us. In
joining the Court's judgments, therefore, I do not at all
12 A former United States Attorney General has testified before
the Congress that only a "small and capricious selection of offenders
have been put to death. Most persons convicted of the same l'rimPs
luwc been imprisoned." Statement. by Attorney General Clark in
Hearings on S. 1760 before the Subcommittee on Criminal Laws and
Procedure8 of the Senate Committee on the Judiciary, 90th Cong.,
2d Sess., 93.
In McGautha v. CaJ,ifornia, 402 U. S. 183, the Court dealt with
claims under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. We expressly declined in that case to consider
claims under the constitutional guarantee against cruel and
unusual punishments. See 398 U.S. 936 (limited grant of certiorari).
1 3 See concurring opinion of Mn. JUSTICE DouGLAs, ante, at 249-
251; concurring opinion of :\fa. JUSTICE l\.IARSHALL, post, at 366 n.
155.
14 Cf. Note, A Study of the California Penalty Jury in First-Degree-
Murder Cases, 21 Stan. L. Rev. 1297 (1969) ; dissenting opinion
of THE CHIEF JUSTICE, post, at 389-390, n. 12.
FURMAN v. GEORGIA 311
238 WHITE, J., concurring
intimate that the death penalty is unconstitutional per se
or that there is no system of capital punishment that
would comport with the Eighth Amendment. That
question, ably argued by several of my Brethren, is not
presented by these cases and need not be decided.
The narrower question to which I address myself
concerns the constitutionality of capital punishment statutes
under which ( 1) the legislature authorizes the imposition
of the death penalty for murder or rape; (2) the
legislature does not itself mandate the penalty in any
particular class or kind of case ( that is, legislative will
is not frustrated if the penalty is never imposed), but
delegates to judges or juries the decisions as to those
cases, if any, in which the penalty will be utilized; and
(3) judges and juries have ordered the death penalty
with such infrequency that the odds are now very much
against imposition and execution of the penalty with
respect to any convicted murderer or rapist. It is in
this context that we must consider whether the execution
of these petitioners would violate the Eighth Amendment.
I begin with what I consider a near truism: that the
death penalty could so seldom be imposed that it would
cease to be a credible deterrent or measurably to contribute
to any other end of punishment in the criminal
justice system. It is perhaps true that no- matter how
infrequently those convicted of rape or murder are executed,
the penalty so imposed is not disproportionate
to the crime and those executed may deserve exactly
what they received. It would also be clear that executed
defendants are finally and completely incapacitated from
again committing rape or murder or any other crime.
But when imposition of the penalty reaches a certain
degree of infrequency, it would be very doubtful that
any existing general need for retribution would be measurably
satisfied. Nor could it be said with confidence
that society's need for specific deterrence justifies death
312 OCTOBER TERM, 1971
WHITE, J.1 concurring 408 U.S.
for so few when for so many in like circumstances life
imprisonment or shorter prison terms are judged sufficient,
or that community values are measurably reinforced
by authorizing a penalty so rarely invoked.
Most important, a major goal of the criminal lawto
deter others by punishing the convicted criminalwould
not be substantially served where the penalty is
so seldom invoked that it ceases to be the credible threat
essential to influence the conduct of others. For present
purposes I accept the morality and utility of punishing
one person to influence another. I accept also the
effectiveness of punishment generally and need not reject
the death penalty as a more effective deterrent
than a lesser punishment. But common sense and experience
tell us that seldom-enforced laws become ineffective
measures for controlling human conduct and
that the death penalty, unless imposed with sufficient
frequency, will make little contribution to deterring
those crimes for which it may be exacted.
The imposition and execution of the death penalty
are obviously cruel in the dictionary sense. But the
penalty has not been considered cruel and unusual punishment
in the constitutional sense because it was thought
justified by the social ends it was deemed to serve. At
the moment that it ceases realistically to further these
purposes, however, the emerging question is whether
its imposition in such circumstances would violate the
Eighth Amendment. It is my view that it would, for
its imposition would then be the pointless and needless
extinction of life with only marginal contributions
to any discernible social or public purposes. A penalty
with such negligible returns to the State would be patently
excessive and cruel and unusual punishment violative
of the Eighth Amendment.
It is also my judgment that this point has been reached
with respect to capital punishment as it is presently adFURMAN
v. GEORGIA 313
238 WHITE, J., concurring
ministered under the statutes involved in these cases.
Concededly, it is difficult to prove as a general proposition
that capital punishment, however administered,
more effectively serves the ends of the criminal law
than does imprisonment. But however that may be,
I cannot avoid the conclusion that as the statutes before
us are now administered, the penalty is so infrequently
imposed that the threat of execution is too attenuated
to be of substantial service to criminal justice.
I need not restate the facts and figures that appear
in the opinions of my Brethren. Nor can I "prove" my
conclusion from these data. But, like my Brethren, I
must a1Tive at judgment; and I can do no more than
state a conclusion based on 10 years of almost daily
exposure to the facts and circumstances of hundreds
and hundreds of federal and state criminal cases involving
crimes for which death is the authorized penalty.
That conclusion, as I have said, is that the death penalty
is exacted with great infrequency even for the most
atrocious crimes and that there is no meaningful basis
for distinguishing the few cases in which it is imposed
from the many cases in which it is not. The short of
it is that the policy of vesting sentencing authority
primarily in jurie&-a decision largely motivated by the
desire to mitigate the harshness of the law and to bring
community judgment to bear on the sentence as well
as guilt or innocence-has so effectively achieved its aims
that capital punishment within the confines of the statutes
now before us has for all practical purposes run its
course.
Judicial review, by definition, often involves a conflict
between judicial and legislative judgment as to what
the Constitution means or requires. In this respect,
Eighth Amendment cases come to us in no different
posture. It seems conceded by all that the Amendment
imposes some obligations on the judiciary to judge the
314 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
constitutionality of punishment and that there are punishments
that the Amendment would bar whether legislatively
approved or not. Inevitably, then, there will
be occasions when we will differ with Congress or state
legislatures with respect to the validity of punishment.
There will also be cases in which we shall strongly disagree
among ourselves. Unfortunately, this is one of them.
But as I see it, this case is no different in kind from
many others, although it may have wider impact and
provoke sharper disagreement.
In this respect, I add only that past and present legislative
judgment with respect to the death penalty loses
much of its force when viewed in light of the recurring
practice of delegating sentencing authority to the jury
and the fact that a jury, in its own discretion and
without violating its trust or any statutory policy, may
refuse to impose the death penalty no matter what
the circumstances of the crime. Legislative "policy" is
thus necessarily defined not by what is legislatively authorized
but by what juries and judges do in exercising
the discretion so regularly conferred upon them. In
my judgment what was done in these cases violated the
Eighth Amendment.
I concur in the judgments of the Court.
MR. JUSTICE MARSHALL, concurring.
These three cases present the question whether the
death penalty is a cruel and unusual punishment prohibited
by the Eighth Amendment to the United States
Consti tu tion.1
1 Certiorari was also granted in a fourth case, Aikens v. California,
No. 68-5027, but the writ was dismissed after the California Supreme
Court held that capital punishment violates the State Constitution.
406 U. S. 813. See People v. Anderson, 6 Cal. 3d 628, 493 P. 2d
880, cert. denied, 406 U. S. 958 (1972). The California decision
reduced by slightly more than 100 the number of persons currently
awaiting execution.
FURMAN v. GEORGIA 315
238 MARSHALL, J., concurring
In No. 69-5003, Furman was convicted of murder for
shooting the father of five children when he discovered
that Furman had broken into his home early one morning.
Nos. 69-5030 and 69-5031 involve state convictions
for forcible rape. Jackson was found guilty of
rape during the course of a robbery in the victim's
home. The rape was accomplished as he held the pointed
ends of scissors at the victim's throat. Branch also was
convicted of a rape committed in the victim's home.
No weapon was utilized, but physical force and threats
of physical force were employed.
The criminal acts with which we are confronted are
ugly, vicious, reprehensible acts. Their sheer brutality
cannot and should not be minimized. But, we are not
called upon to condone the penalized conduct; we are
asked only to examine the penalty imposed on each
of the petitioners and to determine whether or not it
violates the Eighth Amendment. The question then is
not whether we condone rape or murder, for surely
we do not; it is whether capital punishment is "a punishment
no longer consistent with our mvn self-respect" 2
and, therefore, violative of the Eighth Amendment.
The elasticity of the constitutional provision under
consideration presents dangers of too little or too much
self-restraint.3 Hence, we must proceed with caution
to answer the question presented.4 By first examining
the historical derivation of the Eighth Amendment and
2 268 Par!. Deb., H. L. (5th ser.) 703 (1965) (Lord Chancellor
Gardiner).
3 Compare, e. g., Louisiana ex rel. Francis v. R esweber, 329 U. S.
459, 470 (1947) (Frankfurter, J., concurring) , with F. Frankfurter,
Of Law and Men 81 (1956). See In re Anderson, 69 Cal. 2d 613,
634-635, 447 P. 2d 117, 131-132 (1968) (Mosk, J., <'oncurring); cf.
McGautha v. California, 402 U. S. 183, 226 (1971) (separate opinion
of Black, J.); Witherspoon v. Illinois, 391 U. S. 510, 542 (1968)
(WHITE, J., dissenting).
• See generally Frankel, Book Review, 85 Harv. L. Rev. 354,
362 (1971).
316 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
the construction given it in the past by this Court,
and then exploring the history and attributes of capital
punishment in this country, we can answer the question
presented with objectivity and a proper measure
of self-restraint.
Candor is critical to such an inquiry. All relevant
material must be marshaled and sorted and forthrightly
examined. We must not only be precise as to the
standards of judgment that we are utilizing, but
exacting in examining the relevant material in light of
those standards.
Candor compels me to confess that I am not oblivious
to the fact that this is truly a matter of life and
death. Not only does it involve the lives of these
three petitioners, but those of the almost 600 other
condemned men and women in this country currently
awaiting execution. While this fact cannot affect our
ultimate decision, it necessitates that the decision be
free from any possibility of error.
I
The Eighth Amendment's ban against cruel and unusual
punishments derives from English law. In 1583,
John Whitgift, Archbishop of Canterbury, turned the
High Commission into a permanent ecclesiastical court,
and the Commission began to use torture to extract
confessions from persons suspected of various offenses.5
Sir Robert Beale protested that cruel and barbarous
torture violated Magna Carta, but his protests were
made in vain.6
5 Granucci, "Nor Cruf'l and Unusual Punishments Inflicted:" Thf'
Original Meaning, 57 Calif. L. Rev. 839, 848 (1969).
6 Ibid. Beale's views were conveyed from England to America
and were first written into American law by the Reverend ~athaniel
Ward who wrote the Body of Liberties for the ;\1assachusetts Bay
Colony. Clause 46 of that work read: "For bodilie punishments
FURMAN v. GEORGIA 317
238 MARSHALL, J., concurring
Cruel punishments were not confined to those accused
of crimes, but were notoriously applied with even greater
relish to those who were convicted. Blackstone described
in ghastly detail the myriad of inhumane forms
of punishment imposed on persons found guilty of any
of a large number of offenses.7 Death, of course, was
the usual result.8
The treason trials of 1685-the "Bloody Assizes"-
which followed an abortive rebellion by the Duke of
Monmouth, marked the culmination of the parade of
horrors, and most historians believe that it was this
event that finally spurred the adoption of the English
Bill of Rights containing the progenitor of our prohibition
against cruel and unusual punishments.9 The
conduct of Lord Chief Justice Jeffreys at those trials has
been described as an "insane lust for cruelty" which was
"stimulated by orders from the King" (James II).10
The assizes received wide publicity from Puritan pamphleteers
and doubtless had some influence on the adoption
of a cruel and unusual punishments clause. But,
we allow amongst us none that are inhumane, Barbarous or cruel."
1 B. Schwartz, The Bill of Rights: A Documentary History 71, 77
(1971).
7 4 W. Blackstone, Commentaries *376-377. See also 1 J. Chitty,
The Criminal Law 785-786 (5th ed. 1847); Sherman, " ... N'or
Cruel and Unusual Punishments Inflicted," 14 Crime & Delin. 73, 74
(1968).
8 Not content with capit:11 punishment as a means of retribution for
crimes, the English also provided for attainder ("dead in law") as the
immediate and inseparable concomitant of the death sentence. The
consequences of attainder were forfeiture of real and personal estates
and corruption of blood. An attaintcd person could not inherit land
or other hereditament.s, nor retain those he possessed, nor transmit
them by descent to any heir. Descents were also obstructed whenever
posterity derived a title through one who was attaintcd. 4 W. Blackstone,
Commentaries *380-381.
~E.g., 2 J. Story, On the Constitution§ 1903, p. 6.50 (5th ed. 1891).
10 2 G. Trevelyan, History of England 467 (1952 reissue).
318 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
the legislative history of the English Bill of Rights
of 1689 indicates that the assizes may not have been as
critical to the adoption of the clause as is widely thought.
After William and Mary of Orange crossed the channel
to invade England, James II fled. Parliament was
summoned into session and a committee was appointed
to draft general statements containing "such things as
are absolutely necessary to be considered for the better
securing of our religion, laws and liberties." 11 An
initial draft of the Bill of Rights prohibited "illegal"
punishments, but a later draft referred to the infliction
by James II of "illegal and cruel" punishments, and
declared "cruel and unusual" punishments to be prohibited.
12 The use of the word "unusual" in the final
draft appears to be inadvertent.
This legislative history has led at least one legal historian
to conclude "that the cruel and unusual punishments
clause of the Bill of Rights of 1689 was, first,
an objection to the imposition of punishments that
were unauthorized by statute and outside the jurisdiction
of the sentencing court, and second, a reiteration
of the English policy against disproportionate penalties,"
13 and not primarily a reaction to the torture of
the High Commission, harsh sentences, or the assizes.
11 Granucci, supra, n. 5, at 854.
12 /d., at 855.
13 Jd., at 860. In reaching this conclusion, Professor Granucci relies
primarily on the trial of Titus Oates as the impetus behind the
adoption of the clause. Oates was a minister of the Church of
England who proclaimed the existence of a plot to assassinate King
Charles II. He was tried for perjury, convicted, and sentenced to a
fine of 2,000 marks, life imprisonment, whippings, pillorying four
times a year, and defrocking. Oates petitioned both the House of
Commons and the House of Lords for release from judgment. The
House of Lords rejected his petition, but a minority of its members
concluded that the King's Bench had no jurisdiction to compel deFURMAN
v. GEORGIA 319
238 MARSHALL, J., concurring
Whether the English Bill of Rights prohibition against
cruel and unusual punishments is properly read as a
response to excessive or illegal punishments, as a reaction
to barbaric and objectionable modes of punishment, or
as both, there is no doubt whatever that in borrowing
the language and in including it in the Eighth Amendment,
our Founding Fathers intended to outlaw torture
and other cruel punishments.14
The precise language used in the Eighth Amendment
first appeared in America on June 12, 1776, in Virginia's
"Declaration of Rights," § 9 of which read: "That
excessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."
15 This language was drawn verbatim from
the English Bill of Rights of 1689. Other States
adopted similar clauses,16 and there is evidence in the
debates of the various state conventions that were
frocking and that the other punishments were barbarous, inhumane,
unchristian, and unauthorized by law. The House of Commons
agreed with the dissenting Lords. Id., at 857-859.
The author also relies on the dictionary definition of "cruel," whirh
meant "severe" or "hard" in the 17th century, to support his <'0nclusion.
Ibid.
14 Most historians reach this conclusion by reading the history of
the Cruel and Unusual Punishments Clause as indicating that it was
a reaction to inhumane punishments, Professor Granucci reaches
the same conclusion by finding that the draftsmen of the Constitution
misread the British history and erroneously relied on Blackstone.
Granucci, supra, n. 5, at 862--865. It is clear, however, that prior
to the adoption of the Amendment there was some feeling that a
safeguard against cruelty wru, needed and that this feeling had support
in past practices. See n. 6, supra, and accompanying text.
15 Grannucci, supra, n. 5, at 840; 1 Schwartz, supra, n. 6, at
276, 278,
16 See, e. g., Delaware Declaration of Rights (1776), Maryland
Declaration of Rights ( 1776), Massachusetts Declaration of Rights
(1780), and New Hampshire Bill of Rights (1783). 1 Schwartz,
supra, n. 6, at 276,278; 279, 281; 337,343; 374,379.
320 OCTOBER TERM, 1971
MARSHALL, J ., concurring 408 U.S.
called upon to ratify the Constitution of great concern
for the omission of any prohibition against torture or
other cruel punishments.11
The Virginia Convention offers some clues as to what
the Founding Fathers had in mind in prohibiting cruel
and unusual punishments. At one point George Mason
advocated the adoption of a Bill of Rights, and Patrick
Henry concurred, stating:
"By this Constitution, some of the best barriers
of human rights are thrown away. Is there not
an additional reason to have a bill of rights? ...
Congress, from their general powers, may fully go
into business of human legislation. They may legislate,
in criminal cases, from treason to the lowest
offence-petty larceny. They may define crimes
and prescribe punishments. In the definition of
crimes, I trust they will be directed by what wise
representatives ought to be governed by. But, when
we come to punishments, no latitude ought to be
left, nor dependence put on the virtue of representatives.
What says our bill of rights?-'that excessive
bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.' Are you not, therefore, now calling on
those gentlemen who are to compose Congress, to
prescribe trials and define punishments without this
control? Will they find sentiments there similar
to this bill of rights? You let them loose; you
do more - you depart from the genius of your
country ....
"In this business of legislation, your members of
Congress will loose the restriction of not imposing
excessive fines, demanding excessive bail, and in-
17 See 2 .T. Elliot's Debatf's 111 (2d ed. 1876); 3 id., at 447-481.
See also, 2 Schwartz, supra, n. 6, at. 629, 674, 762, 852, 968.
238
FURMAN v. GEORGIA 321
MARSHALL, J., concurring
flicting cruel and unusual punishments. These are
prohibited by your declaration of rights. What has
distinguished our ancestors?-That they would not
admit of tortures, or cruel and barbarous punishment.
But Congress may introduce the practice
of the civil law, in preference to that of the common
law. They may introduce the practice of
France, Spain, and Germany-of torturing, to extort
a confession of the crime. They will say that they
might as well draw examples from those countries
as from Great Britain, and they will tell you that
there is such a necessity of strengthening the arm
of government, that they must have a criminal
equity, and extort confession by torture, in order
to punish with still more relentless severity. We
are then lost and undone." 18
Henry's statement indicates that he wished to insure
that "relentless severity" would be prohibited by the
Constitution. Other expressions with respect to the proposed
Eighth Amendment by Members of the First Congress
indicate that they shared Henry's view of the need
for and purpose of the Cruel and Unusual Punishments
Clause!"
18 3 Elliot, supra, n. 17, at 446-448. A comment by George
Mason which misinterprets a criticism leveled at himself and Patrick
Henry is further evidence of the intention to prohibit torture and
the like by prohibiting cruel and unusual punishments. Id., at 452.
19 1 Annals of Cong. 782.---783 ( 1789). There is some rerognition
of the fact that a prohibition against cruel and unusual punishments
is a flexible prohibition that may change in meaning ns the
mores of a society change, and that may eventually bar rertain
punishments not barred when the Constitution was adopted. Ibid.
(remarks of Mr. Livermore of New Hampshire). There is also evidence
that the general opinion at the time the Eighth Amendment
was adopted was that it prohibited every punishment that was
not "evidently necessary." W. Bradford, An Enquiry How Far the
Punishment of Death is Necessary in Pennsylvania ( 1793), reprinted
in 12 Am. J. Legal Hist. 122, 127 (1968).
322 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
Thus, the history of the clause clearly establishes that
it was intended to prohibit cruel punishments. We must
now turn to the case law to discover the manner in
which courts have given meaning to the term "cruel."
II
This Court did not squarely face the task of interpreting
the cruel and unusual punishments language for the
first time until Wilkerson v. Utah, 99, U.S. 130 (1879),
although the language received a cursory examination in
several prior cases. See, e. g., Pervear v. Commonwealth,
5 Wall. 475 ( 1867). In Wilkerson, the Court unanimously
upheld a sentence of public execution by shooting
imposed pursuant to a conviction for premeditated
murder. In his opinion for the Court, Mr. Justice Clifford
wrote:
"Difficulty would attend the effort to define with
exactness the extent of the constitutional provision
which provides that cruel and unusual punishments
shall not be inflicted; but it is safe to affirm that
punishments of torture, ... and all others in the
same line of unnecessary cruelty, are forbidden by
that amendment to the Constitution." 99 U. S.,
at 135-136.
Thus, the Court found that unnecessary cruelty was
no more permissible than tort,ure. To determine
whether the punishment under attack was unnecessarily
cruel, the Court examined the history of the Utah Territory
and the then-current writings on capital punishment,
and compared this Nation's practices with those
of other countries. It is apparent that the Court felt
it could not dispose of the question simply by referring to
traditional practices; instead, it felt bound to examine
developing thought.
Eleven years passed before the Court again faced a
challenge to a specific punishment under the Eighth
FURMAN v. GEORGIA 323
238 MARSHALL, J., concurring
Amendment. In the case of In re Kemmler, 136 U. S.
436 ( 1890), Chief Justice Fuller wrote an opinion for
a unanimous Court upholding electrocution as a permissible
mode of punishment. While the Court ostensibly
held that the Eighth Amendment did not apply
to the States, it is very apparent that the nature of the
punishment involved was examined under the Due
Process Clause of the Fourteenth Amendment. The
Court held that the punishment was not objectionable.
Today, Kemmler stands primarily for the proposition
that a punishment is not necessarily unconstitutional
simply because it is unusual, so long as the legislature
has a humane purpose in selecting it.20
Two years later in O'Neil v. Vermont, 144 U. S. 323
(1892), the Court reaffirmed that the Eighth Amendment
was not applicable to the States. O'Neil was
found guilty on 307 counts of selling liquor in violation
of Vermont law. A fine of $6,140 ($20 for each offense)
and the costs of prosecution ($497.96) were imposed.
O'Neil was committed to prison until the fine and
the costs were paid; and the court provided that if
they were not paid before a specified date, O'Neil was
to be confined in the house of corrections for 19,914
days (approximately 54 years) at hard labor. Three
Justices-Field, Harlan, and Brewer-dh;sented. They
maintained not only that the Cruel and Unusual Punishments
Clause was applicable to the States, but that
in O'Neil's case it had been violated. Mr. Justice Field
wrote:
"That designation [cruel and unusual], it is true,
is usually applied to punishments which inflict torture,
such as the rack, the thumbscrew, the iron
boot, the stretching of limbs and the like, which
20 The New York Court of Appeals had recognized the unusual
nature of the execution, but attributed it to a legislative desire to
minimize the pain of persons executed.
324 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
are attended with acute pain and suffering . . . .
The inhibition is directed, not only against punishments
of the character mentioned, but against all
punishments which by their excessive length or
severity are greatly disproportioned to the offences
charged. The whole inhibition is against that which
is excessive .... " I d., at 339-340.
In Howard v. Fleming, 191 U. S. 126 (1903), the
Court, in essence, followed the approach advocated by
the dissenters in O'Neil. In rejecting the claim that
10-year sentences for conspiracy to defraud were cruel
and unusual, the Court (per Mr. Justice Brewer) considered
the nature of the crime, the purpose of the law,
and the length of the sentence imposed.
The Court used the same approach seven years later
in the landmark case of Weems v. United States, 217
U. S. 349 (1910). Weems, an officer of the Bureau of
Coast Guard and Transportation of the United States
Government of the Philippine Islands, was convicted of
falsifying a "public and official document." He was sentenced
to 15 years' incarceration at hard labor with
chains on his ankles, to an unusual loss of his civil
rights, and to perpetual surveillance. Called upon to
determine whether this was a cruel and unusual punishment,
the Court found that it was.21 The Court emphasized
that the Constitution was not an "ephemeral"
enactment, or one "designed to meet passing occasions." 22
Recognizing that " [ t] ime works changes, [and] brings
into existence new conditions and purposes," 23 the Court
commented that "[i]n the application of a constitu-
21 The prohibition against cruel and unusual punishments relevant
to Weems was that found in the Philippine Bill of Rights. It was,
however, borrowed from the Eighth Amendment to the United Sfates
Constitution and had thi> same meaning. 217 U. S., at 367.
22 Id., at 373.
23 Jbid.
FURMAN v. GEORGIA 325
238 MARSHALL, J., concurring
tion our contemplation cannot be only of what has
been but of what may be." 24
In striking down the penalty imposed on Weems, the
Court examined the punishment in relation to the offense,
compared the punishment to those inflicted for
other crimes and to those imposed in other jurisdictions,
and concluded that the punishment was excessive."
5 Justices White and Holmes dissented and argued
that the cruel and unusual prohibition was meant to
prohibit only those things that were objectionable at
the time the Constitution was adopted.2
"
Weems is a landmark case because it represents the
first time that the Court invalidated a penalty prescribed
by a legislature for a particular offense. The Court
made it plain beyond any reasonable doubt that excessive
punishments were as objectionable as those that
were inherently cruel. Thus, it is apparent that the
dissenters' position in O'Neil had become the opinion
of the Court in Weems.
Weems was followed by two cases that added little
to our knowledge of the scope of the cruel and unusual
language, Badders v. United States, 240 U.S. 391 (1916),
and United States ex rel. Milwaukee Social Democratic
Publishing Co. v. Burleson, 255 U.S. 407 (1921).21 Then
24 Ibid.
25 I d., at 381.
26 Id., at 389-413. Mr. Justice Black expressed a similar point of
view in his separate opinion in M cGautha v. California, 402 U. S.,
at 226 (1971).
27 Badders was found guilty on seven counts of using the mails rui
part of a scheme to defraud. He was sentenced to concurrent fiveyear
sentences and to a $1,000 fine on each count. The Court ,;ummarily
rejected his claim that the sentence was a cruel and unusual
punishment. In United States ex rel. Muwaukee Social Democratic
Publishing Co. v. Burleson, 255 U. S. 407 (1921), the Court upheld
the denial of second-class mailing privileges to a newspaper that had
allegedly printed articles conveying false reports of United States
326 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
came another landmark case, Louisiana ex rel. Francis v.
Resweber, 329 U. S. 459 ( 1947).
Francis had been convicted of murder and sentenced
to be electrocuted. The first time the current passed
through him, there was a mechanical failure and he did
not die. Thereafter, Francis sought to prevent a second
electrocution on the ground that it would be a cruel
and unusual punishment. Eight members of the Court
assumed the applicability of the Eighth Amendment to
the States.28 The Court was virtually unanimous in
agreeing that "[t]he traditional humanity of modern
Anglo-American law forbids the infliction of unnecessary
pain," 29 but split 5-4 on whether Francis would,
under the circumstances, be forced to undergo any
excessive pain. Five members of the Court treated
the case like In re Kemmler and held that the legislature
adopted electrocution for a humane purpose, and that its
will should not be thwarted because, in its desire to
reduce pain and suffering in most cases, it may have
inadvertently increased suffering in one particular case.30
conduct during the First World War with intent to caus(' disloyalty.
Mr . .Justice Brandeis dissented and indicated his belief that the
"punishment." was unusual and possibly excessive under Weems v.
['nited States, 217 U. S . .'349 (1910). There is nothing in either
of these cases demonstrating a departure from the approac-h used
in Weems, or adding anything to it.
28 Mr. Justice Frankfurter was the only member of the Court unwilling
to make this assumption. However, like Chief Justice Fuller
in In re Kemmler, 136 U.S. 436 (1890), he examined the propriety
of the punishment under the Due Process Clause of the Fourteenth
Amendment. 329 U. S., at 471. As MR. JusTrCE PowELL mnhR
cle,1r, Mr. Justice Frankfurter's analysis was different only in form
from that of his Brethren; in substance, his test was fundamentally
identical to that used by the rest of the Court.
20 Id., at 463.
30 English law required a second attempt at execution if the first
attempt failed. L. Radzinowicz, A History of English Criminal Law
185--186 ( 1948).
FURMAN v. GEORGIA 327
238 11ARSHALL, J., concurring
The four dissenters felt that the case should be remanded
for further facts.
As in Weems, the Court was concerned with excessive
punishments. Resweber is perhaps most significant because
the analysis of cruel and unusual punishment questions
first advocated by the dissenters in O'Neil was
at last firmly entrenched in the minds of an entire Court.
Trop v. Dulles, 356 U. S. 86 (1958), marked the next
major cruel and unusual punishment case in this Court.
Trop, a native-born American, was declared to have lost
his citizenship by reason of a conviction by court-martial
for wartime desertion. Writing for himself and Justices
Black, DouGLAS, and Whittaker, Chief Justice Warren
concluded that loss of citizenship amounted to a cruel
and unusual punishment that violated the Eighth
Amendment.3
'
Emphasizing the flexibility inherent in the words
"cruel and unusual," the Chief Justice wrote that " [ t] he
Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society." 32 His approach to the problem was that
utilized by the Court in Weems: he scrutinized the
severity of the penalty in relation to the offense, examined
the practices of other civilized nations of the world,
and concluded that involuntary statelessness was an
excessive and, therefore, an unconstitutional punishment.
Justice Frankfurter, dissenting, urged that expatriation
was not punishment, and that even if it were,
it was not excessive. While he criticized the conclusion
arrived at by the Chief Justice, his approach to the
Eighth Amendment question was identical.
31 MR. JUSTICE BRENNAN concurred and concluded that the statute
authorizing deprivations of citizenship exceeded Congress' legislative
powers. 356 U. S., at 114.
32 I d., at 101.
328 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 u. s.
Whereas in Trap a majority of the Court failed to
agree on whether loss of citizenship was a cruel and
unusual punishment, four years later a majority did
agree in Robinson v. California, 370 U. S. 660 (1962),
that a sentence of 90 days' imprisonment for violation
of a California statute making it a crime to "be addicted
to the use of narcotics" was cruel and unusual. MR .
.JusTICE STEWART, writing the opinion of the Court, reiterated
what the Court had said in Weems and what
Chief Justice Warren wrote in Trap-that the cruel
and unusual punishment clause was not a static concept,
but one that must be continually re-examined "in the
light of contemporary human knowledge." 33 The fact
that the penalty under attack was only 90 days evidences
the Court's willingness to carefully examine the possible
excessiveness of punishment in a given case even where
what is involved is a penalty that is familiar and widely
accepted.34
We distinguished Robinson in Powell- v. Texas, 392
U. S. 514 (1968), where we sustained a conviction for
drunkenness in a public place and a fine of $20. Four
Justices dissented on the ground that Robinson was controlling.
The analysis in both cases was the same;
only the conclusion as to whether or not the punishment
was excessive differed. Powell marked the last
time prior to today's decision that the Court has had
occasion to construe the meaning of the term "cruel
and unusual" punishment.
Several principles emerge from these prior cases and
serve as a beacon to an enlightened decision in the
instant cases.
33 370 U. S., at 666.
34 Robinson v. California, 370 U. S. 660 ( 1962), removes any
lingering doubts as to whether the Eighth Amendment's prohibition
against cruel and unusual punishments is binding on the States. See
also Powell v. Texas, 392 U.S. 514 (1968).
FURMAN v. GEORGIA 329
238 MARSHALL, J., concurring
III
Perhaps the most important principle in analyzing
"cruel and unusual" punishment questions is one that
is reiterated again and again in the prior opinions of
the Court: i. e., the cruel and unusual language "must
draw its meaning from the evolving standards of decency
that mark the progress of a maturing society." 35 Thus,
a penalty that was permissible at one time in our
Nation's history is not necessarily permissible today.
The fact, therefore, that the Court, or individual Justices,
may have in the past expressed an opinion that
the death penalty is constitutional is not now binding
on us. A fair reading of Wilkerson v. Utah, supra;
In re Kemmler, supra; and Louisiana ex rel. Francis v.
Resweber, supra, would certainly indicate an acceptance
sub silentio of capital punishment as constitutionally
permissible. Several Justices have also expressed their
individual opinions that the death penalty is constitutional3a
Yet, some of these same .Justices and others
have at times expressed concern over capital punishment.37
35 Trop v. Dulles, 356 U. S. 86, 101 (1958). See also W eems v.
United States, 217 U. S., at 373; Robinson v. California, 370 U. S.,
at 666. See also n. 19, supra.
36 E. g., McGautha v. California, 402 U. S., at 226 (separate opinion
of Black, J.); Trop v. Dulles, supra, at 99 ('Warren, C. J.), 125
(Frankfurter, J., dissenting).
37 See, e. g., Louisiana ex rel. Francis v. Resweber, 329 U. S., at
474 (Burton, J., dissenting); Trap v. Dulles, supra, at 99 (Warren,
C. J.); Rudolph v. Alabama, 375 U. S. 889 (1963) (Goldberg, J.,
dissenting from denial of certiorari); F. Frankfurter, Of Law and
Men 81 (1956).
There is no violation of the principle of stare decisis in a decision
that capital punishment now violates the Eighth Ameudmcut The
last case that implied that capital punishment was still permissible
was Trap v. Dulles, supra, at 99. Not only was the implication
purely dictum, but it was also made in the context of a flexible
analysis that recognized that as public opinion changed, the
330 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
There is no holding directly in point, and the very
nature of the Eighth Amendment would dictate that
unless a very recent decision existed, stare decisis would
bow to changing values, and the question of the constitutionality
of capital punishment at a given moment
in history would remain open.
Faced with an open question, we must establish our
standards for decision. The decisions discussed in the
previous section imply that a punishment may be deemed
cruel and unusual for any one of four distinct reasons.
First, there are certain punishments that inherently
involve so much physical pain and suffering that civilized
people cannot tolerate them-e. g., use of the rack, the
thumbscrew, or other modes of torture. See O'Neil v.
Vermont, 144 U. S., at 339 (Field, J., dissenting). Regardless
of public sentiment with respect to imposition of
one of these punishments in a particular case or at any
one moment in history, the Constitution prohibits it.
These are punishments that have been barred since the
adoption of the Bill of Rights.
validity of the penalty would have to be re-examined. Trop v.
Dulles is nearly 15 years old now, and 15 years change many minds
about many things. ::\1R. JusTICE PowELL suggests, however, that our
recent decisions in Witherspoon v. Illinois, 391 U. S. 510 ( 1968),
and McGautha v. California, 402 U. S. 183 (1971), imply that
capital punishment is constitutionally permissible, because if they
are viewed any other way they amount to little more than an academic
exercise. In my view, this distorts the "rule of four" by
which this Court decides which cases and which issues it will con-
~ider, and in what order. See United States v. Generes, 405 U. S.
93, 113 (1972) (DOUGLAS, J., dissenting). There are many reasons
why four members of the Court might have wanted to consider the
issues presented in those cases before considering the difficult question
that is now before us. While I do not intend to catalogue
these reasons here, it should suffice to note that I do not believe
that those decisions can, in any way, fairly be used to support any
inference whatever that the instant cases have already been disposed
of sub silentio.
FURMAN v. GEORGIA 331
238 MARSHALL, J., concurring
Second, there are punishments that are unusual, signifying
that they were previously unknown as penalties
for a given offense. Cf. United States ex rel. Milwaukee
Social Democratic Publishing Co. v. Burleson,
255 U. S., at 435 (Brandeis, J., dissenting). If these
punishments are intended to serve a humane purpose,
they may be constitutionally permissible. In re Kemmler,
136 U. S., at 447; Louisiana ex rel. Francis v. Resweber,
329 U. S., at 464. Prior decisions leave open
the question of just how much the word "unusual"
adds to the word "cruel." I have previously indicated
that use of the word "unusual" in the English Bill of
Rights of 1689 was inadvertent, and there is nothing
in the history of the Eighth Amendment to give flesh
to its intended meaning. In light of the meager history
that does exist, one would suppose that an innovative
punishment would probably be constitutional if
no more cruel than that punishment which it superseded.
We need not decide this question here, however, for
capital punishment is certainly not a recent phenomenon.
Third, a penalty may be cruel and unusual because
it is excessive and serves no valid legislative purpose.
Weems v. United States, supra. The decisions previously
discussed are replete with assertions that one of
the primary functions of the cruel and unusual punishments
clause is to prevent excessive or unnecessary penalties,
e. g., Wilkerson v. Utah, 99- U.S., at 134; O'Neil
v. Vermont, 144 U. S., at 339--340 (Field, J., dissenting);
Weems v. United States, 217 U. S., at 381;
Louisiana ex rel. Francis v. R esweber, supra.; these punishments
are unconstitutional even though popular sentiment
may favor them. Both THE CHIEF J usTICE and
MR. JUSTICE PowELL seek to ignore or to minimize this
aspect of the Court's prior decisions. But, since Mr. Justice
Field first suggested that "rt] he whole inhibition
[of the prohibition against cruel and unusual punish332
OCTOBER TERM, 1971
MARSHALL, J., concurring 408 u. s.
ments] is against that which is excessive," O'Neil v. Vermont,
144 U. S., at 340, this Court has steadfastly maintained
that a penalty is unconstitutional whenever it is
unnecessarily harsh or cruel. This is what the Founders
of this country intended; this is what their fellow citizens
believed the Eighth Amendment provided; and this was
the basis for our decision in Robinson v. California,
supra, for the plurality opinion by Mr. Chief Justice
Warren in Trop v. Dulles, supra, and for the Court's decision
in Weems v. United States, supra. See also W. Bradford,
An Enquiry How Far the Punishment of Death
is Necessary in Pennsylvania (1793), reprinted in 12
Am . .T. Legal Hist. 122, 127 ( 1968). It should also be
noted that the "cruel and unusual" language of the
Eighth Amendment immediately follows language that
prohibits excessive bail and excessive fines. The entire
thrust of the Eighth Amendment is, in short, against
"that which is excessive."
Fourth, where a punishment is not excessive and serves
a valid legislative purpose, it still may be invalid if
popular sentiment abhors it. For example, if the evidence
clearly demonstrated that capital punishment
served valid legislative purposes, such punishment
would, nevertheless, be unconstitutional if citizens found
it to be morally unacceptable. A general abhorrence
on the part of the public would, in effect, equate a
modern punishment with those barred since the adoption
of the Eighth Amendment. There are no prior
cases in this Court striking down a penalty on this ground,
but the very notion of changing values requires that we
recognize its existence.
It is immediately obvious, then, that since capital
punishment is not a recent phenomenon, if it violates
the Constitution, it does so because it is excessive or
FURMAN v. GEORGIA 333
238 l\1ARSHALL, J., concurring
unnecessary, or because it is abhorrent to currently
existing moral values.
We must proceed to the history of capital punishment
in the United States.
IV
Capital punishment has been used to penalize various
forms of conduct by members of society since the beginnings
of civilization. Its precise origins are difficult
to perceive, but there is some evidence that its roots
lie in violent retaliation by members of a tribe or group,
or by the tribe or group itself, against persons committing
hostile acts toward group members.38 Thus, infliction
of death as a penalty for objectionable conduct
appears to have its beginnings in private vengeance.39
As individuals gradually ceded their personal prerogatives
to a sovereign power, the sovereign accepted the
authority to punish wrongdoing as part of its "divine
right" to rule. Individual vengeance gave way to the
vengeance of the state, and capital punishment became
a public function.4° Capital punishment worked its
way into the laws of various countries,41 and was inflicted
in a variety of macabre and horrific ways.42
It was during the reign of Henry II (1154--1189)
that English law first recognized that crime was more
than a personal affair between the victim and the per-
38Ancel, The Problem of the Death Penalty, in Capital Puni~hment
4-5 (T. Sellin ed. 1967); G. Scott, The History of Capital
Punishment 1 (1950).
39 Scott, supra, n. 38, at 1.
• 0 I d., at 2; Ancel, supra, n. 38, at 4-5.
,u The Code of Hammurabi is one of the first known laws to have
recognized the concept of an "eye for an eye," and consequently to
have accepted death as an appropriate punishment for homicide.
E. Block, And May God Have Mercy ... 13-14 (1962).
42 Scott, supra, n. 38, at 19-33.
334 OCTOBER TERM, 1971
MARSHALL, J ., concurring 408U.S.
petrator.43 The early history of capital punishment in
England is set forth in McGautha v. California, 402
U. S. 183, 197-200 (1971), and need not be repeated
here.
By 1500, English law recognized eight major capital
crimes: treason, petty treason (killing of husband by
his wife), murder, larceny, robbery, burglary, rape, and
arson... Tudor and Stuart kings added many more
crimes to the list of those punishable by death, and
by 1688 there were nearly 50.4" George II (1727-1760)
added nearly 36 more, and George III (1760--1820) increased
the number by 60.46
By shortly after 1800, capital offenses numbered more
than 200 and not only included crimes against person
and property, but even some against the public peace.
While England may, in retrospect, look particularly
brutal, Blackstone points out that England was fairly
civilized when compared to the rest of Europe.47
43 Id., at 5. Prior to this time, the laws of Alfred (871-901) provided
that one who willfully slayed another should die, at least under
certain cirrumstances. 3 J. Stephen, History of the Criminal Law
of England 24 (1883). But, punishment was apparently left largely
to private enforcement.
44 T. Plucknett, A Concise History of the Common Law 424-454
(5th ed. 1956).
4 5 Introduction in H. Bedau, The Death Pena.Jty in America 1
(1967 rev. ed.).
46 Ibid.
47 4 \V. Blackstone, Commentaries *377. How many persons were
actually executed for committing capital offenses is not known. See
Bedau, supra, n. 45, at 3; L. Radzinowicz, A History of English
Criminal Law 151, 153 (1948); Sellin, Two Myths in the History
of Capital Punishment, 50 J. Crim. L. C. & P. S. 114 (1959).
"Benefit of clergy" mitigated the harshness of the law somewhat.
This concept arose from the struggle between church and state and
originally provided that members of the clergy should be tried in
ecclesiastical courts. Eventually all first offenders were entitled to
"benefit of clrrgy." Bedau, supra, at 4.
FURMAN v. GEORGIA 335
238 MARSHALL, J., concurring
Capital punishment was not as common a penalty in
the American Colonies. "The Capitall Lawes of New-
England," dating from 1636, were drawn by the Massachusetts
Bay Colony and are the first written expression
of capital o.ffenses known to exist in this country. These
laws make the following crimes capital offenses: idolatry,
witchcraft, blasphemy, murder, assault in sudden anger,
sodomy, buggery, adultery, statutory rape, rape, manstealing,
perjury in a capital trial, and rebellion. Each
crime is accompanied by a reference to the Old Testament
to indicate its source.48 It is not known with any
certainty exactly when, or even if, these laws were enacted
as drafted; and, if so, just how vigorously these
laws were enforced.49 We do know that the other Colonies
had a variety of laws that spanned the spectrum of
severity. 50
By the 18th century, the list of crimes became much
less theocratic and much more secular. In the average
colony, there were 12 capital crimes.51 This was far
fewer than existed in England, and part of the reason
was that there was a scarcity of labor in the Colonies."2
Still, there were many executions, because " [ w] ith
county jails inadequate and insecure, the criminal population
seemed best controlled by death, mutilation, and
fines." 53
Even in the 17th century, there was some opposition
48 G. Haskins, The Capitall Lawes of New-England, Harv. L. Sch.
Bull. 10-11 (Feb. 1956).
49 Compare Haskins, supra, n. 48, with E. Powers, Crime and
Punishment in Early Massachusetts, 1620-1692 ( 1966). See also
Bedau, supra, n. 45, at 5.
50 Id., at 6.
51 Filler, Movements to Abolish the Death Penalty in the United
St.ates, 284 Annals Am. A cad. Pol. & Soc. Sci. 124 ( 1952).
52 Ibid.
53 Ibid. (footnotes omitted).
336 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U. S.
to capital punishment in some of the colonies. In his
"Great Act" of 1682, William Penn prescribed death
only for premeditated murder and treason,54 although
his reform was not long lived.55
In 1776 the Philadelphia Society for Relieving Distressed
Prisoners organized, and it was followed 11
years later by the Philadelphia Society for Alleviating
the Miseries of Public Prisons."" These groups pressured
for reform of all penal laws, including capital
offenses. Dr. Benjamin Rush soon drafted America's
first reasoned argument against capital punishment,
entitled An Enquiry into the Effects of Public Punishments
upon Criminals and upon Society.57 In 1793,
William Bradford, the Attorney General of Pennsylvania
and later Attorney General of the United States, conducted
"An Enquiry How Far the Punishment of Death
is Necessary in Pennsylvania." 08 He concluded that
it was doubtful whether capital punishment was at all
necessary, and that until more information could be
obtained, it should be immediately eliminated for all
offenses except high treason and murder.59
The "Enquiries" of Rush and Bradford and the
Pennsylvania movement toward abolition of the death
54 /bid.; Bedau, supra, n. 45, at 6.
55 For an unknown reason, Pennsylvania adopted the harsher
penal code of England upon William Penn's death in 1718. There
was no evidence, however of an increase in crime between 1682 and
1718. Filler, supra, n. 51, at 124. In 1794, Pennsylvania eliminated
capital punishment except for "murder of the first degree," which
included all "willful, delibcrnte or premeditated" killings. The death
pmalty was mandatory for this crime. Pa, Stat. 1794, c. 1777.
Virginia followed Pennsylvania's lead and enacted similar legislation.
Other States followed suit.
56 Filler, supra, n. 51, at 124.
• 1 Id., at 124-125.
58 Reprinted in 12 Am . .J. Legal Hist. 122 (1968).
59 His advice was in large measure followed. See n. 55, supra.
FURMAN v. GEORGIA 337
238 MARSHALL, J., concurring
penalty had little immediate impact on the practices
of other States.60 But in the early 1800's, Governors
George and DeWitt Clinton and Daniel Tompkins unsuccessfully
urged the New York Legislature to modify
or end capital punishment. During this same period,
Edward Livingston, an American lawyer who later became
Secretary of State and Minister to France under
President Andrew Jackson, was appointed by the Louisiana
Legislature to draft a new penal code. At the
center of his proposal was "the total abolition of capital
punishment." 61 His Introductory Report to the System
of Penal Law Prepared for the State of Louisiana 62
contained a systematic rebuttal of all arguments favoring
capital punishment. Drafted in 1824, it was not
published until 1833. This work was a tremendous
impetus to the abolition movement for the next
half century.
During the 1830's, there was a rising tide of sentiment
against capital punishment. In 1834, Pennsylvania
abolished public executions,63 and two years later,
The Report on Capital Punishment Made to the Maine
Legislature was published. It led to a law that
prohibited the executive from issuing a warrant for
execution within one year after a criminal was sentenced
by the courts. The totally discretionary character of
the law was at odds with almost all prior practices. The
"Maine Law" resulted in little enforcement of the death
penalty, which was not surprising since the legislature's
idea in passing the law was that the affirmative burden
placed on the governor to issue a warrant one full year
60 One scholar has noted that the early abolition movement in the
United States lacked the leadership of major public figures. Bedau,
supra, n. 45, at 8.
61 Ibid.; Filler, supra, n. 51, at 126-127.
62 See Scott, supra, n. 38, at 114-116.
63 Filler, supra, n. 51, at 127.
338 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
or more after a trial would be an effective deterrent to
exercise of his power.64 The law spread throughout
New England and led to Michigan's being the first State
to abolish capital punishment in 1846.65
Anti-capital-punishment feeling grew in the 1840's
as the literature of the period pointed out the agony
of the condemned man and expressed the philosophy
that repentance atoned for the worst crimes, and that
true repentance derived, not from fear, but from harmony
with nature.66
By 1850, societies for abolition existed in Massachusetts,
New York, Pennsylvania, Tennessee, Ohio, Alabama,
Louisiana, Indiana, and Iowa.67 New York,
Massachusetts, and Pennsylvania constantly had abolition
bills before their legislatures. In 1852, Rhode
Island followed in the footsteps of Michigan and partially
abolished capital punishment.68 Wisconsin totally abolished
the death penalty the following year.09 Those
States that did not abolish the death penalty greatly
reduced its scope, and "[f] ew states outside the South
had more than one or two ... capital offenses" in addition
to treason and murder.70
But the Civil War halted much of the abolition furor.
One historian has said that "[a]fter the Civil War,
men's finer sensibilities, which had once been revolted by
the exec1,1tion of a fellow being, seemed hardened and
,.. Davis, The Movement to Abolish Capital Punishment in America,
1787-1861, 63 Am. Hist. Rev. 23, 33 (1957).
,;5 Filler, supra, n. 51, at 128. Capital punishment was abolishrd
for all crimes but treason. The law was enacted in 1846, but did
not go into effect until 1847.
66 Davis, supra, n. 64, at 29-30.
u7 Filler, supra, n. 51, at 129.
68 I d., at 130.
89 Ibid.
70 Bedau, supra, n. 45, at 10.
FURMAN v. GEORGIA 339
238 MARSHALL, .T., concurring
blunted." 11 Some of the attention previously given
to abolition was diverted to prison reform. An abolitionist
movement still existed, however. Maine abolished
the death penalty in 1876, restored it in 1883, and
abolished it again in 1887; Iowa abolished capital punishment
from 1872-1878; Colorado began an erratic
period of de facto abolition and revival in 1872; and
Kansas also abolished it de facto in 1872, and by law in
1907:2
One great success of the abolitionist movement in
the period from 1830--1900 was almost complete elimination
of mandatory capital punishment. Before the
legislatures formally gave juries discretion to refrain
from imposing the death penalty, the phenomenon of
"jury nullification,i> in which juries refused to convict
in cases in which they believed that death was an inappropriate
penalty, was experienced.7 3 Tennessee was
the first State to give juries discretion, Tenn. Laws 1837-
1838, c. 29, but other States quickly followed suit. Then,
Rep. Curtis of New York introduced a federal bill
that ultimately became law in 1897 which reduced the
number of federal capital offenses from 60 to 3 (treason,
murder, and rape) and gave the jury sentencing discretion
in murder and rape cases.74
By 1917 12 States had become abolitionist jurisdictions.
7 5 But, under the nervous tension of World War I,
71 Davis, supra, n. 64, at 46.
72 Kansas restored it in 1935. See Appendix I to this opini'.ln,
infra, at 372.
n See M cGautha v. Caiif ornia, 402 U. S., at 199.
H Filler, supra, n. 51, at 133. Sec also Winston v. United States,
172 U.S. 303 (1899). More than 90% of the executions since 1930
in this country have been for offenses with a discretionary death
penalty. Bedau, The Courts, the Constitution, and Capital Punishment,
1968 Utah L. Rev. 201, 204.
75 See n. 72, supra.
340 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
four of these States reinstituted capital punishment and
promising movements in other States came grinding to
a halt.'" During the period following the First World
·war, the abolitionist movement never regained its
momentum.
It is not easy to ascertain why the movement lost its
vigor. Certainly, much attention was diverted from
penal reform during the economic crisis of the depression
and the exhausting years of struggle during World
War II. Also, executions, which had once been frequent
public spectacles, became infrequent private affairs.
The manner of inflicting death changed, and the horrors
of the punishment were, therefore, somewhat diminished
in the minds of the general public.77
In recent years there has been renewed interest in
modifying capital punishment. New York has moved
toward abolition,18 as have several other States.'° In
1967, a bill was introduced in the Senate to abolish
rr. Filler, supra, n. 51, at 134.
77 &Hin, Executions in the United States, in Capital Punishment
35 (T. Sellin ed. 1967); United Nations, Department of Economic
and Soci..'ll Affairs, Capital Punishment, Pt. II, ,r, 82-85, pp. 101-102
(1968).
78 New York authorizes the death penalty only for murder of a
police officer or for murder by a life term prisoner. N. Y. Penal
Code § 125.30 (1967).
79 See generally Bedau, supra, n. 74. Nine States do not authorize
capital punishment under any circumstances: Alaska, Hawaii, Iowa,
Maine, Michigan, Minnesota, Oregon, West Virginia, and Wisconsin.
Puerto Rico and the Virgin Islands also have no provision
for capital punishment. Bedau, supra, n. 45, at 39. Those States
that severely restrict the imposition of the death penalty are: New
Mexico, N. M. St.at. Ann. § 40A-29-2.l (1972); New York, N. Y.
Penal Code § 125.30 (1967); North Dakota, N. D. Cent . Code
§§ 12-07-01, 12-27-13 (1960); Rhode Island, R. I. Gen. Laws § 11-
23-2 (1970); Vermont, Vt. Stat. Ann., Tit. 13, § 2303 (Supp. 1971).
California is the only State in which the judiciary has declared
capital punishment to be invalid. See n. 1, supra.
FURMAN v. GEORGIA 341
238 MARSHALL, J., concurring
capital punishment for all federal crimes, but it died
in committee."0
At the present time, 41 States, the District of Columbia,
and other federal jurisdictions authorize the death
penalty for at least one crime. It would be fruitless
to attempt here to categorize the approach to capital
punishment taken by the various States."1 It is sufficient
to note that murder is the crime most often punished
by death, followed by kidnaping and treason."2
Rape is a capital offense in 16 States and the federal
system."3
The foregoing history demonstrates that capital punishment
was carried from Europe to America but, once
here, was tempered considerably. At times in our history,
strong abolitionist movements have existed. But,
they have never been completely successful, as no more
than one-quarter of the States of the Union have, at
any one time, abolished the death penalty. They have
had partial success, however, especially in reducing the
number of capital crimes, replacing mandatory death
sentences with jury discretion, and developing more
humane methods of conducting executions.
This is where our historical foray leads. The question
now to be faced is whether American society has
80 See generally Hearings on S. 1760 before the Subcommittee on
Criminal Laws and Procedures of the Senate Committee on the
.Judiciary, 90th Cong., 2d Sess. (1968).
81 Extensive compilations of the capital crimes in particular States
can be found in Bedau, supra, n. 45, at 39-52 and in the Brief for
the Petitioner in No. 68-5027, App. G (Aikens v. Cai,ifornia, 406
U. S. 813 (1972)). An attempt is made to break down capital
offenses into categories in Finkel, A Survey of Capital Offenscs, in
Capital Punishment 22 (T. Sellin ed. 1967).
82 Bedau, supra, n. 45, at 43.
83 lbid. See also Ralph v. Warden, 438 F. 2d 786, 791-792 (CA4
1970).
342 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
reached a point where abolition is not dependent on a
successful grass roots movement in particular jurisdictions,
but is demanded by the Eighth Amendment. To
answer this question, we must first examine whether or
not the death penalty is today tantamount to excessive
punishment.
V
In order to assess whether or not death is an excessive
or unnecessary penalty, it is necessary to consider
the reasons why a legislature might select it as punishment
for one or more offenses, and examine whether
less severe penalties would satisfy the legitimate legislative
wants as well as capital punishment. If they
would, then the death penalty is unnecessary cruelty,
and, therefore, unconstitutional.
There are six purposes conceivably served by capital
punishment: retribution, deterrence, prevention of repetitive
criminal acts, encouragement of guilty pleas
and confessions, eugenics, and economy. These are
considered seriatim below.
A. The concept of retribution is one of the most
misunderstood in all of our criminal jurisprudence. The
principal source of confusion derives from the fact that,
in dealing with the concept, most people confuse the
question "why do men in fact punish?" with the question
"what justifies men in punishing?" 84 Men may
punish for any number of reasons, but the one reason
that punishment is morally good or morally justifiable
is that someone has broken the law. Thus, it can
correctly be said that breaking the law is the sine qua
non of punishment, or, in other words, that we only
84 See Hart, Murder and the Principles of Punishment: England
and the United States, 52 Nw. U. L. Rrv. 433, 448 (1957); Report
of Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932,
ill 52-53, pp. 17-18 (1953). See generally, Reichert, Capital Punishment
Reconsidered, 47 Ky. L. J. 397, 399 (1959).
FURMAN v. GEORGIA 343
238 MARSHALL, J., concurring
tolerate punishment as it is imposed on one who deviates
from the norm established by the criminal law.
The fact that the State may seek retribution against
those who have broken its laws does not mean that
retribution may then become the State's sole end in punishing.
Our jurisprudence has always accepted deterrence
in general, deterrence of individual recidivism, isolation
of dangerous persons, and rehabilitation as proper goals
of punishment. See Trop v. Dulles, 356 U. S., at 111
(BRENNAN, J., concurring). Retaliation, vengeance, and
retribution have been roundly condemned as intolerable
aspirations for a government in a free society.
Punishment as retribution has been condemned by
scholars for centuries,85 and the Eighth Amendment itself
was adopted to prevent punishment from becoming
synonymous with vengeance.
In Weems v. United States, 217 U. S., at 381, the
Court, in the course of holding that Weems' punishment
violated the Eighth Amendment, contrasted it with
penalties provided for other offenses and concluded:
"[T]his contrast shows more than different exercises
of legislative judgment. It is greater than
that. It condemns the sentence in this case as
cruel and unusual. It exhibits a difference between
unrestrained power and that which is exercised
under the spirit of constitutional limitations formed
to establish justice. The State thereby suffers nothing
and loses no power. The purpose of punishment
is fulfilled, crime is repressed by penalties
of just, not tormenting, severity, its repetition is
prevented, and hope is given for the reformation
of the criminal." (Emphasis added.)
85 See, e. g., C. Beccaria, On Crimes and Punishment (tr. by
H. Paolucci 1963); 1 Archbold, On the Practice, Pleading, and Evidence
in Criminal Cases §§ 11-17, pp. XV-XIX (T. Waterman
7th ed. 1860).
344 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
It is plain that the view of the Weems Court was that
punishment for the sake of retribution was not permissible
under the Eighth Amendment. This is the
only view that the Court could have taken if the "cruel
and unusual" language were to be given any meaning.
Retribution surely underlies the imposition of some
punishment on one who commits a criminal act. But,
the fact that some punishment may be imposed does
not mean that any punishment is permissible. If retribution
alone could serve as a justification for any particular
penalty, then all penalties selected by the legislature
,vould by definition be acceptable means for designating
society's moral approbation of a particular act.
The "cruel and unusual" language would thus be read
out of the Constitution and the fears of Patrick Henry
and the other Founding Fathers would become realities.
To preserve the integrity of the Eighth Amendment,
the Court has consistently denigrated retribution as a
permissible goal of punishment.80 It is undoubtedly
correct that there is a demand for vengeance on the
part of many persons in a community against one who
is convicted of a particularly offensive act. At times
a cry is heard that morality requires vengeance to evi-
86 Sec, e. g., Rudolph v. Alabama, 375 U. S. 889 (1963) (Goldberg,
J., dissenting from denial of certiorari); Trop v. Dulles, 356
U. 8., at 97 (Warren, C . .T.), 113 (BRENNAN, J., roncurring); Morissette
v. United States, 342 U.S. 246 (1952); Williams v. New York,
337 U. S. 241 (1949). In Powell v. Texas, 392 U. 8., at 530, we said:
"This Court has never held that anything in the Constitution requires
that penal sanrtions be designed solely to achieve therapeutic or rehabilitative
efff'cts .... " This is, of course, correct, since deterrence
and isolation arf' clearly rerognized as proper. E. g., Trop v. Dulles,
supra, at 111 (BRENNAN, .T., concurring). There is absolutely
nothing in th<' language, the rationale, or the holding of Powell
v. Texas that implies that retribution for its own sake is a proper
legislative aim in punishing.
FURMAN v. GEORGIA 345
238 1fARSHALL, J., concurring
dence society's abhorrence of the act.87 But the Eighth
Amendment is our insulation from our baser selves.
The "cruel and unusual" language limits the avenues
through which vengeance can be channeled. Were this
not so, the language would be empty and a return to the
rack and other tortures would be possible in a given case.
Mr. Justice Story wrote that the Eighth Amendment's
limitation on punishment "would seem to be wholly
unnecessary in a free government, since it is scarcely
possible that any department of such a government
should authorize or justify such atrocious conduct." 88
I would reach an opposite conclusion-that only in a
free society would men recognize their inherent weaknesses
and seek to compensate for them by means of a
Constitution.
The history of the Eighth Amendment supports only
the conclusion that retribution for its own sake is
improper.
B. The most hotly contested issue regarding capital
punishment is whether it is better than life imprisonment
as a deterrent to crime.8 9
While the contrary position has been argued,90 it is
my firm opinion that the death penalty is a more severe
sanction than life imprisonment. Admittedly, there are
87 See, e. g., Vellenga, Christianity and The Death Penalty, in
Bedau, supra, n. 45, at 123-130; Houk, ThP Death Sentence, in
Bedau, supra, at 146-154. See also Ehrrnzweig, A Psychoanalysis
of the Insanity Plea-Clues to the Problems of Criminal Responsibility
and Insanity in the Death Cell, 73 Yale L . .J. 425, 433-439
(1964).
88 2 J. Story, On the Constitution § 1903, p. 650 (5th ed. 1891).
89 Note, The Death Penalty Cases, 56 Calif. L. Rev. 1268, 1275
(1968); Note, .Justice or Revenge?, 60 Dick. L. Rev. 342, 343
(1956); Royal Commission, supra, n. 84, 55, at 18.
9 0 Barzun, In Favor of Capital Punishment, in Bedau, supra,
n. 45, at 154, 163; Hook, supra, n. 87, at 152.
346 OCTOBER TERM, 1971
MARSHALL, .J., concurring 408 u. s.
some persons who would rather die than languish in
prison for a lifetime. But, whether or not they should
be able to choose death as an alternative is a far different
question from that presented here-i. e., whether the
State can impose death as a punishment. Death is
irrevocable; life imprisonment is not. Death, of course,
makes rehabilitation impossible; life imprisonment does
not. In short, death has always been viewed as the ultimate
sanction, and it seems perfectly reasonable to continue
to view it as such.91
It must be kept in mind, then, that the question to be
considered is not simply whether capital punishment is
" 1 See Commonwealth v. Elliott, 371 Pa. 70, 78, 89 A. 2d 782, 786
(1952) (Musmanno, J., dissenting); F. Frankfurter, Of Law and
Men 101 (1956). The assertion that life imprisonment may somehow
be more cruel than death is usually rejected as frivolous.
Hence, I confess to surpris(• at finding the assertion being made in
various ways in today's opinions. If there were any merit to the
contention, it would do much to undercut even the retributive motive
for imposing capital punishment. In any event, there is no better
response to such an assertion than that of former Pennsylvania
Supreme Court Justice Musmanno in his dissent in Commonwealth
v. Elliott, supra, at 79-80, 89 A. 2d, at 787:
"One of the judges of the lower court indicated from the bench
that a sentence of life imprisonment is not to be regarded as a lesser
penalty than that of death. I challenge that statement categorically.
It can be stated as a universal truth stretching from nadir to zenith
that regardless of circumstances, no one wants to die. Some person
may, in an instant of spiritual or physical agony express a desire
for death as an anodyne from intolerable pain, but that desire is
never full-hearted because there is always the reserve of realization
that the silken cord of life is not broken by a mere wishing. There
is no person in the actual extremity of dropping from the precipice
of life who does not desperately reach for a crag of time to which
to cling even for a moment against the awful eternity of silence
below. With all its 'slings and arrows of outrageous fortune,' life
is yet sweet and death is always cruel."
Attention should also be given to the hypothesis of Sir James
Stephen, quoted in the text, infra, at 347-348.
FURMAN v. GEORGIA 347
238 MARSHALL, J., concurring
a deterrent, but whether it is a better deterrent than
life imprisonment.92
There is no more complex problem than determining
the deterrent efficacy of the death penalty. "Capital
punishment has obviously failed as a deterrent when a
murder is committed. We can number its failures. But
we cannot number its successes. No one can ever know
how many people have refrained from murder because of
the fear of being hanged." 93 This is the nub of the
problem and it is exacerbated by the paucity of useful
data. The United States is more fortunate than most
countries, however, in that it has what are generally
considered to be the world's most reliable statistics.04
The two strongest arguments in favor of capital punishment
as a deterrent are both logical hypotheses devoid
of evidentiary support, but persuasive nonetheless.
The first proposition was best stated by Sir James
Stephen in 1864:
"No other punishment deters men so effectually
from committing crimes as the punishment of death.
This is one of those propositions which it is difficult
to prove, simply because they are in themselves
more obvious than any proof can make them. It is
possible to display ingenuity in arguing against it,
but that is all. The whole experience of mankind
is in the other direction. The threat of instant
death is the one to which resort has always been
made when there was an absolute necessity for
producing some result. . . . No one goes to certain
92 See Bedau, Deterrence and the Death Penalty: A Reconsideration,
61 J. Crim. L. C. & P. S. 539, 542 (1970).
93 Royal Commission, supra, n. 84, ~f 59, at 20.
9 f United Nations, supra, n. 77, ,r 134, at 117. The great advantage
that this country has is that it can compare abolitionist
and retentionist States with geographic, economic, and cultural
similarities.
348 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
inevitable death except by compulsion. Put the
matter the other way. Was there ever yet a criminal
who, when sentenced to death and brought out
to die, would refuse the offer of a commutation of
his sentence for the severest secondary punishment?
Surely not. Why is this? It can only be because
'All that a man has will he give for his life.' In
any secondary punishment, however terrible, there
is hope; but death is death; its terrors cannot be
described more forcibly.'' 95
This hypothesis relates to the use of capital punishment
as a deterrent for any crime. The second proposition
is that "if life imprisonment is the maximum penalty
for a crime such as murder, an offender who is serving a
life sentence cannot then be deterred from murdering a
fellow inmate or a prison officer.'' 96 This hypothesis
advocates a limited deterrent effect under particular
circumstances.
Abolitionists attempt to disprove these hypotheses by
amassing statistical evidence to demonstrate that there
is no correlation between criminal activity and the existence
or nonexistence of a capital sanction. Almost all
of the evidence involves the crime of murder, since
murder is punishable by death in more jurisdictions than
are other offenses,97 and almost 90% of all executions
since 1930 have been pursuant to murder convictions.98
Thorsten Sellin, one of the leading authorities on capital
punishment, has urged that if the death penalty
95 Reprinted in Royal Commission, supra, n. 84, ,r 57, at 19.
96 United Nations, supra, n. 77, 139, at 118.
" 7 See Bedau, supra, n. 45, at 43.
98 T. Sellin, The Death Penalty, A Report for the Model Penal
Code Project of the American Law Institute (ALI) 5 (1959);
Morris, Thoughts on Capital Punishment., 35 Wash. L. Rev. &
St. Bar J. 335, 340 (1960).
FURMAN v. GEORGIA 349
238 MARSHALL, J., concurring
deters prospective murderers, the following hypotheses
should be true:
"(a) Murders should be less frequent in states
that have the death penalty than in those that
have abolished it, other factors being equal. Comparisons
of this nature must be made among states
that are as alike as possible in all other respectscharacter
of population, social and economic condition,
etc.-in order not to introduce factors known
to influence murder rates in a serious manner but
present in only one of these states.
"(b) Murders should increase when the death
penalty is abolished and should decline when it is
restored.
"(c) The deterrent effect should be greatest and
should therefore affect murder rates most powerfully
in those communities where the crime occurred
and its consequences are most strongly brought home
to the population.
"(d) Law enforcement officers would be safer from
murderous attacks in states that have the death
penalty than in those without it." 99 (Footnote
omitted.)
Sellin's evidence indicates that not one of these propositions
is true. This evidence has its problems, however.
One is that there are no accurate figures for
capital murders; there are only figures on homicides and
they, of course, include noncapital killings.100 A second
problem is that certain murders undoubtedly are misinterpreted
as accidental deaths or suicides, and there
" 9 Sellin, supra, n. 98, at 21.
100 Such crimes might include lesser forms of homicide or homicide
by a child or a lunatic. Id., at 22; The Laws, The Crimes, and The
Executions, in Bedau, supra, n. 45, at 32, 61.
350 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
1s no way of estimating the number of such undetected
crimes. A third problem is that not all homicides are
reported. Despite these difficulties, most authorities
have assumed that the proportion of capital murders
in a State's or nation's homicide statistics remains reasonably
constant,1°1 and that the homicide statistics are
therefore useful.
Sellin's statistics demonstrate that there is no correlation
between the murder rate and the presence or absence
of the capital sanction. He compares States that
have similar characteristics and finds that irrespective
of their position on capital punishment, they have similar
murder rates. In the New England States, for example,
there is no correlation between executions 102 and
homicide rates.103 The same is true for Midwestern
States,1°• and for all others studied. Both the United
Nations 105 and Great Britain ioG have acknowledged the
validity of Sellin's statistics.
Sellin also concludes that abolition and/ or reintroduction
of the death penalty had no effect on the
homicide rates of the various States involved.101 This
conciusion is borne out by others who have made similar
101 Sutherland, Murder and the Death Penalty, 15 J. Crim. L.
& Crim. 522 (1925}; ALI, supra, n. 98, at 22; Bedau, supra, n. 45,
at 73.
102 Executions were chosen for purposes of comparison because
whatever impact capital punishment had would surely be most forcefully
felt where punishment was actually imposed.
103 See Appendix II to this opinion, infra, at 373.
104 See Appendix III to this opinion, infra, at 374.
105 United Nations, supra, n. 77, ii 134, at 117.
100 Royal Commission, supra, n. 84, at 349-351. Accord, Vold,
Extent and Trend of Capital Crimes in United States, 284 Annals
Am. Acad. Pol. & Soc. Sci. 1, 4 (1952}.
101 Sellin, supra, n. 98, at 34.
FURMAN v. GEORGIA 351
238 MARSHALL, J., concurring
inquiries 108 and by the experience of other countries.1 09
Despite problems with the statistics,110 Sellin's evidence
has been relied upon in international studies of capital
punishment.111
Statistics also show that the deterrent effect of capital
punishment is no greater in those communities where
executions take place than in other communities.112 In
fact, there is some evidence tha.t imposition of capital
punishment may actually encourage crime, rather than
deter it.113 And, while police and law enforcement offi-
108 See, e. g., Guillot, Abolition and Restoration of the Death
Penalty in Missouri, in Bedau, supra, n. 45, at 351, 358--359; Co bin,
Abolition and Restoration of the Death Penalty in Delaware, in
Bedau, supra, at 359, 371-372.
109 Sellin, supra, n. 98, at 38-39; Roy~ll Commission, supra, n. 84,
at 353; United Nations, supra, n. 77, 1il 130-136, at 116-118.
110 One problem is that the statistics for the 19th century are
especially suspect; another is that de jure abolition may have been
preceded by de facto abolition which would have distorted the
figures. It should also be noted that the figures for several States
reflect homicide convictions rather than homicide rates.
111 Royal Commission, supra, n. 84, '65, at 23; 346-349 ; United
Nations, supra, n. 77, ,i 132, at 117.
112 Hayner & Cranor, The Death Penalty in Washington State,
284 Annals Am. Acad. Pol. & Soc. Sci. 101 (1952); Graves, A
Doctor Looks at Capital Punishment, 10 Med. Arts & Sci 137
(1956); Dann, The Deterrent Effect of Capital Punishment, Bull.
29, Friends Social Service Series, Committee on Philanthropic Labor
and Philadelphia Yearly Meeting of Friends (1935); Savitz, A Study
in Capital Punishment, 49 J. Crim. L. C. & P. S. 338 (1958);
United Nations, supra, n. 77, 1" 135, at 118.
113 Graves, supra, n. 112; Hrarings, supra, n. 80, at 23 (testimony
of C. Duffy), 126 (statement of Dr. West); T. Reik, The Compulsion
to Confess 474 (1959); McCaffcrty, Major Trends in the Use of
Capital Punishment, 25 Fed. Prob., No. 3, p.15 (Sept. 1961). Capital
punishment may provide an outlet for suicidal impulses or a means
of achieving notoriety, for example.
352 OCTOBER TERl\T, 1971
MARSHALL, J ., concurring 408 U.S.
cers are the strongest advocates of capital punishment,1'''
the evidence is overwhelming that police are no safer
in communities that retain the sanction than in those
that have abolished it.115
There is also a substantial body of data showing that
the existence of the death penalty has virtually no
effect on the homicide rate in prisons.116 Most of the
persons sentenced to death are murderers, and murderers
tend to be model prisoners.111
114 See, e. g., Gerstein, A Prosecutor Looks at Capital Punishment,
51 J. Crim. L. C. & P. S. 2S2 (1960); Hoover, Statements in Favor
of the Death Penalty, in Bedau, supra, n. 45, a.t 130; Younger,
Capital Punishment: A Sha.rp l\fodicine Reconsidered, 42 A. B. A. J.
113 (1956). But see, Symposium on Capital Punishment, District
Attorneys' Assn. of State of ~cw York, Jan. 27, 1961, 7 N. Y. L. F.
249, 267 ( 1961) (statement of A. Herman, head of the homicide
bureau of the New York City District Attorney's office).
""Sellin, supra, n. 98, at 56-58; Koeninger, Capital Punishment in
Te,rns. 1924-196il. 15 Crime & Delin. 132 (1969); Sellin, Does the
Death Penalty Protect Municipal Poli<'(', in Bf'dau, supra, n. 45,
at 2b4; United Nations, supra, n. 77, '136, at 118.
11G L. Lawes, Life and Death in Sing Sing 150 (1928); :'.'vicGce,
Capital Punishment as Seen by a Correctional Administrator, 28 Fed.
Prob., No. 2, p. 11 (June 1964); 1950 Survey of the International
Penal anrl Penitentiary Commission, citrd in Sellin, supra, n. 98.
at 70-72; Sellin, Prisons Homicides, in Capital Punishment 154
(T. Sellin ed. 1967); cf. Akman, Homicides and Assaults in Canadian
Prisons, in Capital Punishment, supra, at 161-168. The argumC'nt
can be made that the reason for the good record of murderers is
that those who arc likely to be recidivists are executed. There is,
however, no evidence to show that in choosing between life and
death sentences juries select the lesser penalties for those persons
they belirvC' are unlikely to commit future crimes.
117 E. g., United Nations, supra, n. 77, ,-144, at 119; B. Eshelman
& F. Riley, Death Row Chaplain 224 (1962). This is supported
also by overwhelming statistics showing an extremely low rate of
recidivism for convicted murderers who are released from prison.
Royal Commission, supra, n. 84, App. lfi, at 486-491; Sellin, supra.
n. 98, at 72-79; United Nations, supra, n. 77, ,-144, at 119.
FURMAN v. GEORGIA 353
238 1fARSHALL, J., concurring
In sum, the only support for the theory that capital
punishment is an effective deterrent is found in the
hypotheses with which we began and the occasional
stories about a specific individual being deterred from
doing a contemplated criminal act.m These claims of
specific deterrence are often spurious,119 however, and
may be more than counterbalanced by the tendency
of capital punishment to incite certain crimes.120
The United Xations Committee that studied capital
punishment found that "'[i] t is generally agreed between
the retentionists and abolitionists, whatever their opinions
about the validity of comparative studies of deterrence,
that the data which now exist show no correlation
between the existence of capital punishment and lower
rates of capital crime." 121
Despite the fact that abolitionists have not proved
non-deterrence beyond a reasonable doubt, they have
succeeded in showing by clear and convincing evidence
that capital punishment is not necessary as a deterrent
to crime in our society. This is all that they must do.
We would shirk our judicial responsibilities if we failed
to accept the presently existing statistics and demanded
more proof. It may be that we now possess all the
proof that anyone could ever hope to assemble on the
subject. But, even if further proof were to be forthcoming,
I believe there is more than enough evidence
presently available for a decision in this case.
In 1793 William Bradford studied the utility of the
death penalty in Pennsylvania and found that it probably
had no deterrent effect but that more evidence
118 See, e. g., The Question of Deterrence, in Bedau, supra, n. 45,
at 267.
119 Ibid. and n. 11; Note, The Death Penalty Cases, 56 Calif.
L. Rev. 1268, 1282-1283 (1968).
120 See n. 113, supra.
121 United Nations, supra, n. 77, ,r 159, at 123.
354 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
was needed.122 Edward Livingston reached a similiar
conclusion with respect to deterrence in 1833 upon completion
of his study for Louisiana.123 Virtually every
study that has since been undertaken has reached the
same result.124
In light of the massive amount of evidence before
us, I see no alternative but to conclude that capital
punishment cannot be justified on the basis of its deterrent
effect.125
122 See nn. 58 and 59, supra, and accompanying text.
123 See n. 62, supra, and accompanying text.
12• Graves, A Doctor Looks at Capital Punishment, 10 Med. Arts.
& Sci. 137 (1956); Royal Commission, supra, n. 84, 160, at 20-21;
Schuessler, The Deterrent Influence of the Death Penalty, 284 Annals
Am. Acad. Pol. & Soc. Sci. 54 (1952); United Nations, supra, n. 77,
\ 142, at 119; M. Wolfgang, Patterns in Criminal HomiC'idC' (1958).
One would assume that if deterrence were enhanced by capital
punishment, the increased deterrence would be most effective with
respect to the premeditating murderer or the hired killer who plots
his crime before committing it. But, such people rarely expect to
be caught and usually assume that if they are caught they will
either be acqritted or sentenced to prison. This is a fairly dependable
assumption since a reliable estimate is that one person is
executed for every 100 capital murders known to the police. Hart,
Murder and the Principles of Punishment: England and the
United States, 52 Nw. U. L. Rev. 433, 444-445 (1957). For capital
punishment to deter anybody it must be a certain result of a criminal
act, cf. Ex parte Medley, 134 U. S. 160 (1890), and it is not.
It must also follow swiftly upon completion of the offense and it
cannot in our complicated due process system of justice. See, e. g.,
The Question of Deterrence, in Bedau, supra, n. 45, at 258, 271-
272; DiSalle, Trends in the Abolition of Capital Punishment, 1969
U. Toledo L. Rev. 1, 4. It is ironic that those persons whom we
would like to deter the most have the least to fear from the death
penalty and recognize that fact. Sellin, Address for Canadian Society
for Abolition of the Death Penalty, Feb. 7, 1965, in 8 Crim. L. Q.
36, 48 (1966); Proceedings of the Section of Criminal Law of the
ABA, Aug. 24, 1959, p. 7 (M. DiSalle).
125 In reaching this conclusion, I maintain agreement with that
portion of Stephen's hypothesis that suggests that convicted crimFURMAN
v. GEORGIA 355
238 MARSHALL, J., concurring
C. Much of what must be said about the death penalty
as a device to prevent recidivism is obvious-if a
murderer is executed, he cannot possibly commit another
offense. The fact is, however, that murderers are extremely
unlikely to commit other crimes either in prison
or upon their release.126 For the most part, they are
first offenders, and when released from prison they are
known to become model citizens.121 Furthermore, most
persons who commit capital crimes are not executed.
With respect to those who are sentenced to die, it is
critical to note that the jury is never asked to determine
whether they are likely to be recidivists. In light
of these facts, if capital punishment were justified purely
on the basis of preventing recidivism, it would have to
be considered to be excessive; no general need to obliterate
all capital offenders could have been demonstrated,
nor any specific need in individual cases.
D. The three final purposes which may underlie utilization
of a capital sanction-encouraging guilty pleas
and confessions, eugenics, and reducing state expenditures-
may be dealt with quickly. If the death penalty
is used to encourage guilty pleas and thus to deter suspects
from exercising their rights under the Sixth Amendment
to jury trials, it is unconstitutional. United States
inals fear death more than they fear life imprisonment. As I stated
earlier, the death penalty is a more severe sanction. The error in
the hypothesis lies in its assumption that because men fear death
more than imprisonment after they are convicted, they necessarily
must weigh potential penalties prior to committing criminal
acts and that they will conform their behavior so as to insure that,
if caught, they will receive the lesser penalty. It is extremely unlikely
that much thought is given to penalties before the act is committed,
and even if it were, the preceding footnote explains why
such thought would not lead to deterrence.
126 See n. 117, supra.
127 See, e. r,., Royal Commission, supra, n. 84, App. 15, at 486-491.
356 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
v. Jackson, 390 U. S. 570 (1968).128 Its elimination
would do little to impair the State's bargaining position
in criminal cases, since life imprisonment remains
a severe sanction which can be used as leverage for
bargaining for pleas or confessions in exchange either
for charges of lesser offenses or recommendations of
leniency.
Moreover, to the extent that capital punishment is
used to encourage confessions and guilty pleas, it is not
being used for punishment purposes. A State that
justifies capital punishment on its utility as part of
the conviction process could not profess to rely on capital
punishment as a deterrent. Such a State's system
would be structured with twin goals only: obtaining
guilty pleas and confessions and imposing imprisonment
as the maximum sanction. Since life imprisonment is
sufficient for bargaining purposes, the death penalty is
excessive if used for the same purposes.
In light of the previous discussion on deterrence, any
suggestions concerning the eugenic benefits of capital
punishment are obviously meritless.120 As I pointed
out above, there is not even any attempt made to discover
which capital offenders are likely to be recidivists,
let alone which are positively incurable. No test or
procedure presently exists by which incurables can be
screened from those who would benefit from treatment.
On the one hand, due process would seem to require
that we have some procedure to demonstrate incurability
before execution; and, on the other hand, equal protection
would then seemingly require that all incurables
be executed, cf. Skinner v. Oklahoma, 316 U. S. 535
( 1942). In addition, the "cruel and unusual" language
128 Jackson applies to the States under the criteria articulated in
Duncan v. Louisiana, 391 U. S. 145, 149 (1968).
129 See, e. g., Barzun, In Favor of Capital Punishment, in Bedau,
,~upra, n. 45, at 154.
FURMAN v. GEORGIA 357
238 MARSHALL, J., concurring
would require that life impri:wnment, treatment, and
sterilization be inadequate for eugenic purposes. More
importantly, this Nation has never formally professed
eugenic goals, and the history of the world does not
look kindly on them. If eugenics is one of our purposes,
then the legislatures should say so forthrightly and
design procedures to serve this goal. Until such time,
I can only conclude, as has virtually everyone else who
has looked at the problem,130 that capital punishment
cannot be defended on the basis of any eugenic purposes.
As for the argument that it is cheaper to execute
a capital offender than to imprison him for life, even
assuming that such an argument, if true, would support
a capital sanction, it is simply incorrect. A disproportionate
amount of money spent on prisons is
attributable to death row.131 Condemned men are not
productive members of the prison community, although
they could be,132 and executions are expensive.133 Appeals
are often automatic, and courts admittedly spend
more time with death cases.-m
130 See, e. g., Death as a Punishment, in Bedau, supra, at 214,
226-228; Caldwell, "\Vhy is the Death Penalty Retained?, 284
Annals Am. Acad. Pol. & Soc. Sci. 45, 50 (1952); Johnson, Selective
Factors in Capital Punishment, 36 Social Forces 165, 169 (1957);
Srllin, Capital Punishment, 25 Fed. Prob., No. 3, p. 3 (Sept. 1961).
We should not be surprised at the lack of merit in the eugenic arguments.
There simply is no evidence that mentally ill persons who
commit capital offenses constitute a psychiatric entity distinct from
other mentally disordered patients or that they do not respond as
readily to treatment. Cruvant & Waldrop, The Murderer in the
Mental Institution, 284 Annals Am. Acad. Pol. & Soc. Sci. 35, 43
(1952).
131 Caldwell, supra, n. 130, at 48; McGee, supra, n. 116.
132 1-fcGee, supra, at 13- 14; Bailey, Rehabilitation on Death Row,
in Bedau, supra, n. 45, at 556.
133 T. Thomas,. This Life We Take 20 (3d ed. 1965).
134 Stein v. New York, 346 U. S. 156, 196 (1953) (Jackson, J.);
cf. Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J., concurring in
result).
358 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
At trial, the selection of jurors is likely to become
a costly, time-consuming problem in a capital case,13
'
and defense counsel will reasonably exhaust every possible
means to save his client from execution, no matter
how long the trial takes.
During the period between conviction and execution,
there are an inordinate number of collateral attacks on
the conviction and attempts to obtain executive clemency,
all of which exhaust the time, money, and effort
of the State. There are also continual assertions that
the condemned prisoner has gone insane.136 Because
there is a formally established policy of not executing
insane persons,137 great sums of money may be spent
on detecting and curing mental illness in order to perform
the execution.138 Since no one wants the responsibility
for the execution, the condemned man is likely
to be passed back and forth from doctors to custodial
officials to courts like a ping-pong ball.139 The entire
process is very costly.
When all is said and done, there can be no doubt
that it costs more to execute a man than to keep him
in prison for life.140
E. There is but one conclusion that can be drawn
from all of this-i. e., the death penalty is an excessive
and unnecessary punishment that violates the Eighth
135 See, e. g., Witherspoon v. Illinoi.s, 391 U. S. 510 (1968).
136 Slovenko, And the Penalty is (Sometimes) Death, 24 Antioch
Review 351 (1964).
137 See, e. g., Caritativo v. California, 357 U. S. 549 (1958l.
138 To others, as well as to the author of this opinion, this practice
has seemed a strange way to spend money. See, e. g., T. Arnold,
The Symbols of Government 10-13 ( 1935).
139 Slovenko, supra, 11. 136, at 363.
140 B. Eshelman & F. Riley, Death Row Chaplain 226 (1962);
Caldwell, supra, n. 130, at 48; McGee, supra, n. 116, at 13; Sellin,
supra, 11. 130, at 3 (Sept. 1961).
FURMAN v. GEORGIA 359
238 MARSHALL, J., concurring
Amendment. The statistical evidence is not convincing
beyond all doubt, but it is persuasive. It is not improper
at this point to take judicial notice of the fact
that for more than 200 years men have labored to
demonstrate that capital punishment serves no purpose
that life imprisonment could not serve equally well.
And they have done so with great success. Little, if
any, evidence has bee11 adduced to prove the contrary.
The point has now been reached at which deference
to the legislatures is tantamount to abdication of our
judicial roles as factfinders, judges, and ultimate arbiters
of the Constitution. We know that at some point the
pre,;umption of constitutionality accorded legislative acts
gives way to a realistic assessment of those acts. This
point comes when there is sufficient evidence available
so that judges can determine, not whether the legislature
acted wisely, but whether it had any rational basis
whatsoever for acting. We have this evidence before
us now. There is no rational basis for concluding that
capital punishment is not excessive. It therefore violates
the Eighth Amendment.141
" 1 This analysis parallels in some ways the analysis used in striking
down legislation on the ground that it violates Fourteenth
Amendment concepts of substantive due process. See Packer, Making
the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1074
(1964). There is one difference, however. Capital punishment is
unconstitutional because it is excessive and unnecessary punishment,
not because it is irrational.
The concepts of cruel and unusual punishment and substantive
due process become so elose as to merge when the substantive due
process argument is stated in the following manner: because capital
punishment deprives an individual of a fundamental right (i. e., the
right to life), Johnson v. Zerbst, 304 U.S. 458,462 (1938), the State
needs a compelling interest to justify it. See Note, The Death
Penalty Cases, 56 Calif. L. Rev. 1268, 1324--1354 (1968). Thus
stated, the substantive due process argument reiterates what is es-
~entially the primary purpose of the Cruel and Unusual Punishments
360 OCTOBER TERM, 1971
MARSHALL, J., concurring 408U.S.
VI
In addition, even if capital punishment is not excessive,
it nonetheless violates the Eighth Amendment
because it is morally unacceptable to the people of the
United States at this time in their history.
In judging whether or not a given penalty is morally
acceptable, most courts have said that the punishment
is valid unless "it shocks the conscience and sense of
justice of the people." 142
Clause of the Eighth Amendment~i. e., punishment may not be more
severe than is necessary to serve the legitimate interests of the State.
THE CHIEF JUSTICE asserts that if we hold that capital punishment
is unconstitutional because it is excessive, we will next have
to determine whether a 10-year prison sentence rather than a fiveyear
sentence is also excessive, or whether a $5 fine would not do
equally well as a $10 fine. He may be correct that such determinations
will have to be made, but, as in these cases, those persons challenging
the penalty will bear a heavy burden of demonstrating that
it is excessive. These cases arise after 200 years of inquiry, 200
years of public debate and 200 years of marshaling evidence. The
burden placed on those challenging capital punishment could not
have been greater. I am convinced that they have met their burden.
Whether a similar burden will prove too great in future cases is a
question that we can resolve in time.
142 United States v. Rosenberg, 195 F. 2d 583, 608 (CA2) (Frank,
J.), cert. denied, 344 U.S. 838 (1952). See also Kasper v. Brittain,
245 F. 2d 92, 96 (CA6), cert. denied, 355 U.S. 834 (1957) ("shocking
to the sense of justice"); People v. Morris, 80 Mich. 634, 639,
45 N. W. 591, 592 (1890) ("shock the moral sense of the people").
In Repouille v. United States, 165 F. 2d 152 (CA2 1947), and Schmidt
v. United States, 177 F. 2d 450, 451 (CA2 1949), Judge Learned
Hand wrote that the standard of "good moral character" in the
Nationality Act was to be judged by "the generally accepted moral
conventions current at the time." 165 F. 2d, at 153. Judge Frank,
who was later to author the Rosenberg opinion, in which a similar
standard was adopted, dissented in Repouille and urged that the
correct standard was the "attitude of our ethical leaders." 165 F.
2d, at 154. In light of Rosenberg, it is apparent that Judge Frank
would require a much broader based moral approbation before strikFURMAN
v. GEORGIA 361
238 MARSHALL, J., concurring
Judge Frank once noted the problems inherent in the
use of such a measuring stick:
"[The court,] before it reduces a sentence as
'cruel and unusual,' must have reasonably good
assurances that the sentence offends the 'common
conscience.' And, in any context, such a standard-
the community's attitude-is usually an unknowable.
It resembles a slithery shadow, since
one can seldom learn, at all accurately, what the
community, or a majority, actually feels. Even
a carefully-ta.ken 'public opinion poll' would be inconclusive
in a case like this." 148
While a public opinion poll obviously is of some assistance
in indicating public acceptance or rejection of a
specific penalty,144 its utility cannot be very great. This
is because whether or not a punishment is cruel and
unusual depends, not on whether its mere mention
"shocks the conscience and sense of justice of the
people," but on whether people who were fully informed
as to the purposes of the penalty and its liabilities would
find the penalty shocking, unjust, and unacceptable.145
ing down a punishment as cruel and unusual than he would for
merely holding that conduct was evidence of bad moral character
under a legislative act.
143 United States v. Rosenberg, supra, at 608.
144 See Repouille v. United States, supra, at 153. In Witherspoon
v. Illinois, 391 U. S., at 520, the Court cited a public opinion poll
that showed that 42% of the American people favored capital
punishment, while 47 % opposed it. But the polls have shown
great fluctuation. See What Do Americans Think of the Death
Penalty?, in Bedau, supra, n. 45, at 231- 241.
145 The fact that the constitutionality of capital punishment turns
on the opinion of an informed citizenry undercuts the argument that
since the legislature is the voice of the people, its retention of capital
punishment must represent the will of the people. So few people
have been executed in the past decade that capital punishment is
362 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
In other words, the question with which we must
deal is not whether a substantial proportion of American
citizens would today, if polled, opine that capital punishment
is barbarously cruel, but whether they would find
it to be so in the light of all information presently
available.
This is not to suggest that with respect to this test
of unconstitutionality people are required to act rationally;
they are not. With respect to this judgment, a
violation of the Eighth Amendment is totally dependent
on the predictable subjective, emotional reactions of
informed citizens.146
It has of ten been noted that American citizens know
almost nothing about capital punishment.147 Some of
the conclusions arrived at in the preceding section and
the supporting evidence would be critical to an informed
judgment on the morality of the death penalty: e. g.,
that the death penalty is no more effective a deterrent
than life imprisonment, that convicted murderers are
a subject only rarely brought to the attention of the average American.
Lack of exposure to the problem is likely to lead to indifference,
and indifference and ignorance result in preservation of the
status qua, whether or not that is desirable, or desired.
It might be argued that in choosing to remain indifferent and
uninformed, citizens reflect their judgment that capital punishment
is really a question of utility, not morality, and not one, therefore .
of great concern. As attractive as this is on its face, it cannot be
correct, because such an argument requires that the choice to remain
ignorant or indifferent be a viable one. That, in turn, requires that
it be a knowledgeable choice. It is therefore imperative for constitutional
purposes to attempt to discern the probable opinion of
an informed electorate.
146 Cf. Packer, Making the Punishment Fit the Crime, 77 Harv.
L. Rev. 1071, 1076 (1964).
141 E. g., Gold, A Psychiatric Review of Capital Punishment, 6 J.
Forensic Sci. 465, 466 ( 1961) ; A. Koestler, Reflections on Hanging
164 (1957); cf. C. Duffy & A. Hirshberg, 88 Men and 2 Women 257-
258 (1962).
FURMAN v. GEORGIA 363
238 MARSHALL, J., concurring
rarely executed, but are usually sentenced to a term
in prison; that convicted murderers usually are model
prisoners, and that they almost always become lawabiding
citizens upon their release from prison; that
the costs of executing a capital offender exceed the costs
of imprisoning him for life; that while in prison, a convict
under sentence of death performs none of the useful
functions that life prisoners perform; that no attempt
is made in the sentencing process to ferret out likely
recidivists for execution; and that the death penalty
may actually stimulate criminal activity.
This information would almost surely convince the
average citizen that the death penalty was unwise, but
a problem arises as to whether it would convince him
that the penalty was morally reprehensible. This problem
arises from the fact that the public's desire for
retribution, even though this is a goal that the legislature
cannot constitutionally pursue as its sole justification
for capital punishment, might influence the
citizenry's view of the morality of capital punishment.
The solution to the problem lies in the fact that
no one has ever seriously advanced retribution as a
legitimate goal of our society. Defenses of capital punishment
are always mounted on deterrent or other similar
theories. This should not be surprising. It is the
people of this country who have urged in the past that
prisons rehabilitate as well as isolate offenders, and it
is the people who have injected a sense of purpose
into our penology. I cannot believe that at this stage
in our history, the American people would ever knowingly
support purposeless vengeance. Thus, I believe
that the great mass of citizens would conclude on the
basis of the material already considered that the death
penalty is immoral and therefore unconstitutional.
But, if this information needs supplementing, I believe
that the following facts would serve to convince
364 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 u. s.
even the most hesitant of citizens to condemn death
as a sanction: capital punishment is imposed discriminatorily
against certain identifiable classes of people;
there is evidence that innocent people have been executed
before their innocence can be proved; and the
death penalty wreaks havoc with our entire criminal
justice system. Each of these facts is considered briefly
below.
Regarding discrimination, it has been said that "[i] t
is usually the poor, the illiterate, the underprivileged,
the member of the minority group-the man who, because
he is without means, and is defended by a courtappointed
attorney-who becomes society's sacrificial
lamb .... " 148 Indeed, a look at the bare statistics regarding
executions is enough to betray much of the
discrimination. A total of 3,859 persons have been executed
since 1930, of whom 1,751 were white and 2,066
were Negro.149 Of the executions, 3,334 were for murder;
1,664 of the executed murderers were white and 1,630
were Negro; 150 455 persons, including 48 whites and
405 Negroes, were executed for rape.151 It is immediately
apparent that Negroes were executed far more often
than whites in proportion to their percentage of the
population. Studies indicate that while the higher rate
of execution among Negroes is partially due to a higher
rate of crime, there is evidence of racial discrimination.1 52
148 Hearings, supra, n. 80, at 11 (statement of M. DiSallc).
149 National Prisoner Statistics No. 45, Capital Punishment 1930-
1968, p. 7 (Aug. 1969).
150 Ibid.
1s1 Ibid.
152 Alexander, The Abolition of Capital Punishment, Proceedings
of the 96th Congress of Correction of the American Correctional
Association, Baltimore, Md., 57 (1966); Criminal Justirr: The
General Aspects, in Bedau, supra, n. 45, at 405, 411-414 ; Brdau.
Death Sentences in New Jersey, 1907-1960, 19 Rutgers L. ReY. 1,
FURMAN v. GEORGIA 365
238 MARSHALL, J., concurring
Racial or other discriminations should not be surprising.
In M cGautha v. California, 402 U. S., at 207, this
Court held "that committing to the untrammeled discretion
of the jury the power to pronounce life or death
in capital cases is [not] offensive to anything in the
Constitution." This was an open invitation to
discrimination.
There is also overwhelming evidence that the death
penalty is employed against men and not women. Only
32 women have been executed since 1930, while 3,827
men have met a similar fate.153 It is difficult to understand
why women have received such favored treatment
since the purposes allegedly served by capital punishment
seemingly are equally applicable to both sexes.154
It also is evident that the burden of capital punishment
falls upon the poor, the ignorant, and the under-
18--21, 52-53 (1964); R. Clark, Crime in America 335 (1970); Hochkammer,
The Capital Punishment Controversy, 60 J. Crim. L. C. &
P. S. 360, 361-362 (1969); Johnson, The Negro and Crime, 217
Annals Am. Acad. Pol. & Soc. Sci. 93, 95, 99 (1941); Johnson, Selective
Factors in Capital Punishment, 36 Social Forces 165 (1957);
United Nations, supra, n. 77, ,r 69, at 98; Williams, The Death Penalty
and the Negro, 67 Crisis 501, 511 (1960); M. Wolfgang &
B. Cohen, Crime and Race: Conceptions and l\lisconceptions 77,
80-81, 85-86 (1970) ; Wolfgang, Kelly, & Nolde, Comparison of the
Executed and the Commuted Among Admissions to Death Row,
53 J. Crim. L. C. & P. S. 301 (1962). l\fa. JusTICE DouGLAS explores
the discriminatory application of the death penalty at great
length, ante, at 249- 257.
1 5 3 National Prisoner Statistics No. 45, Capital Punishment 1930-
1968, p. 28 (Aug. 1969).
1 H Men kill between four and five times more frequently than
women. See Wolfgang, A Sociological Analysis of Criminal Homicide,
in Bedau, supra, n. 45, at 74, 75. Hence, it would not be irregular
to see four or five times as many men executed as women. The
statistics show a startlingly greater disparity, however. United
Nations, supra, n. 77, ,r 67, at 97-98.
366 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
privileged members of society.155 It is the poor, and
the members of minority groups who are least able to
voice their complaints against capital punishment.
Their impotence leaves them victims of a sanction that
the wealthier, better-represented, just-as-guilty person
can escape. So long as the capital sanction is used
only against the forlorn, easily forgotten members of
society, legislators are content to maintain the status
quo, because change would draw attention to the problem
and concern might develop. Ignorance is perpetuated
and apathy soon becomes its mate, and we have
today's situation.
Just as Americans know little about who is executed
and why, they are unaware of the potential dangers
of executing an innocent man. Our "beyond a reasonable
doubt" burden of proof in criminal cases is intended
to protect the innocent, but we know it is not foolproof.
Various studies have shown that people whose
innocence is later convincingly established are convicted
and sentenced to death.156
155 Criminal Justice: The General Aspects, in Bedau, supra, at
405, 411; Bedau, Capital Punishment in Oregon, 1903-64, 45 Ore.
L. Rev. 1 (1965); Bedau, Death Sentences in New Jersey, 1907-
1960, 19 Rutgers L. Rev. 1 (1964); R. Clark, Crime in America 335
(1970); C. Duffy & A. Hirshberg, 88 :Vlen and 2 Women 256-257
(1962); Carter & Smith, The Death Penalty in California: A Statistical
and Composite Portrait, 15 Crime & Delin. 62 ( 1969); Hearings,
supra, n. 80, at 124---125 (statement of Dr. West); Koeninger,
Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132
(1969); McGee, supra, n. 116, at. 11-12.
156 See, e. g., E. Borchard, Convicting the Innocent (1932);
J. Frank & B. Frank, Not Guilty (1957); E. Gardner, Court of
Last Resort (1952). These three books examine cases in which innocent
persons were sentenced to die. None of the innocents was
actually executed, however. Bedau has abstracted 74 cases occurring
in the United States since 1893 in which a wrongful conFURMAN
v. GEORGIA 367
238 MARSHALL, J ., concurring
Proving one's innocence after a jury finding of guilt
is almost impossible. While reviewing courts are willing
to entertain all kinds of collateral attacks where a
sentence of death is involved, they very rarely dispute
the jury's interpretation of the evidence. This is, perhaps,
as it should be. But, if an innocent man has
been found guilty, he must then depend on the good
faith of the prosecutor's office to help him establish
his innocence. There is evidence, however, that prosecutors
do not welcome the idea of having convictions,
which they labored hard to secure, overturned, and that
their cooperation is highly unlikely.157
No matter how careful courts are, the possibility of
perjured testimony, mistaken honest testimony, and
human error remain all too real.158 We have no way of
viction for murder was alleged and usually proved "beyond doubt."
In almost every case, the convictions were sustained on appeal.
Bedau seriously contends that innocent persons were actually
executed. Murder, Errors of Justice, and Capital Punishment, in
Bedau, supra, n. 45, at 434, 438. See also Black, The Crisis in
Capital Punishment, 31 Md. L. Rev. 289 (1971); Hirschberg, Wrongful
Convictions, 13 Rocky Mt. L. Rev. 20 (1940); Pollak, The
Errors of Justice, 284 Annals Am. Acad. Pol. & Soc. Sci. 115 (1952).
157 E. Gardner, Court of Last Resort 178 (1952).
158 MR. JUSTICE DoUGLAB recognized this fact when he wrote:
"One who reviews the records of criminal trials need not look long
to find an instance where the issue of guilt or innocence hangs in
delicate balance. A judge who denies a stay of execution in a capital
case often wonders if an innocent man is going to his death ....
"Those doubts exist because our system of criminal justice does
not work with the efficiency of a machine-errors are made and
innocent as well as guilty people are sometimes punished ....
". . . We believe that it is better for ten guilty people to be set
free than for one innocent man to be unjustly imprisoned.
"Yet the sad truth is that a cog in the machine often slips: memories
fail; mistaken identifications are made; those who wield the
power of life and death itself-the police officer, the witness, the
prosecutor, the juror, and even the judge-become overzealous in
368 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
judging how many innocent persons have been executed
but we can be certain that there were some. Whether
there were many is an open question made difficult by
the loss of those who were most knowledgeable about
the crime for which they were convicted. Surely there
will be more as long as capital punishment remains part
of our penal law.
While it is difficult to ascertain with certainty the
degree to which the death penalty is discriminatorily
imposed or the number of innocent persons sentenced
to die, there is one conclusion about the penalty that is
universally accepted-i. e., it "tends to distort the course
of the criminal law." l
59 As Mr. Justice Frankfurter
said:
"I am strongly against capital punishment ....
When life is at hazard in a trial, it sensationalizes
the whole thing almost unwittingly; the effect on
juries, the Bar, the public, the Judiciary, I regard
as very bad. I think scientifically the claim of
deterrence is not worth much. Whatever proof
there may be in my judgment does not outweigh
the social loss due to the inherent sensationalism
of a trial for life." 160
their concern that criminals be brought to justice. And at times
there is a venal combination between the polict> and a witness."
Foreword, J. Frank & B. Frank, ::\Tot Guilty 11- 12 (1957).
There has been an "incredible lag" between the development of
modern scientific methods of investigation and their application to
criminal cases. When modern methodology is available, prosecutors
have the resources to utilize it, whereas defense counsel often may
not. Lassers, Proof of Guilt in Capital Cases-An Unscience, 58
.T. Crim. L. C. & P. S. 310 (1967). This increases the chances
of error.
159 Ehrmann, The Death Penalty and the Administration of Justice,
284 Annals Am. A cad. Pol. & Soc. Sci. 73, 8:3 ( 1952).
16° F. Frankfurter, Of Law and Men 81 (1956) .
FURMAN v. GEORGIA 369
238 MARSHALL, J., concurring
The deleterious effects of the death penalty are also
felt otherwise than at trial. For example, its very existence
"inevitably sabotages a social or institutional program
of reformation." 101 In short "[t]he presence of
the death penalty as the keystone of our penal system
bedevils the administration of criminal justice all the
way down the line and is the stumbling block in the
path of general reform and of the treatment of crime
and criminals." 162
Assuming knowledge of all the facts presently available
regarding capital punishment, the average citizen
would, in my opinion, find it shocking to his conscience
and sense of justice.163 For this reason alone capital punishment
cannot stand.
161 B. :Eshelman & F. Riley, Death Row Chaplain 222 (1962).
162 McCafferty, l\fajor Trends in the Use of Capital Punishment,
25 Fed. Prob., No. 3, pp. 15, 21 (Sept. 1961) (quoting Dr. S. Glueck
of Harvard University).
163 MR. JusTICE POWELL suggests that this conclusion is speculative,
and he is certainly correct. But the mere recognition of this truth
does not undercut the validity of the conclusion. MR. JUSTICE
PowELL himself concedes that judges somehow know that certain
punishments are no longer acceptable in our society; for example, he
refers to branding and pillorying. Whence comes this knowledge?
The answer is that it comes from our intuition as human beings
that our fellow human beings no longer will tolerate such punishments.
I agree wholeheartedly with the implication in my Brother
PowELL's opinion that judges are not free to strike down penalties
tha.t they find personally offensive. But, I disagree with his suggestion
that it is improper for judges to ask themselves whether a
specific punishment is morally acceptable to the American public.
Contrary to some current thought, judges have not lived lives
isolated from a broad range of human experience. They have come
into contact with many people, many ways of life, and m11ny
philosophies . . They have learned to share with their fellow humnn
beings common views of morality. If, after drawing on this experience
and considering the vast range of people and views that they
have encountered, judges conclude that these people would not
370 OCTOBER TERM, 1971
MARSHALL, J., concurring 408 U.S.
VII
To arrive at the conclusion that the death penalty
violates the Eighth Amendment, we have had to engage
in a long and tedious journey. The amount of information
that we have assembled and sorted is enormous.
knowingly tolerate a specific penalty in light of its costs, then this
conclusion is entitled to weight. See Frankel, Book Review, 85
Harv. L. Rev. 354 (1971). Judges can find assistance in determining
whether they are being objective, rather than subjective, by referring
to the attitudes of the persons whom most citizens consider
our "ethical leaders." See Repouille v. United States, 165 F. 2d, at
154 (Frank, J., dissenting).
I must also admit that I am confused as to the point that my
Brother PowELL seeks to make regarding the underprivileged members
of our society. If he is stating that this Court cannot solve
all of their problems in the context of this case, or even many of
them, I would agree with him. But if he is opining that it is only
the poor, the ignorant, the racial minorities, and the hapless in our
society who are executed; that they are executed for no real reason
other than to satisfy some vague notion of society's cry for vengeance;
and that knowing these things, the people of this country
would not care, then I most urgently disagree.
There is too much crime, too much killing, too much hatred in
this country. If the legislatures could eradicate these elements from
our lives by utilizing capital punishment, then there would be a
valid purpose for the sanction and the public would surely accept
it. It would be constitutional. As THE CHIEF JUSTICE and MR.
JUSTICE PowELL point out, however, capital punishment has been
with us a long time. What purpose has it served? The evidence
is that it has served none. I cannot agree that the American people
have been so hardened, so embittered that they want to take the
life of one who performs even the basest criminal act knowing that
the execution is nothing more than bloodlust. This has not been
my experience with my fellow citizens. Rather, I have found that
they earnestly desire their system of punishments to make sense in
order that it can be a morally justifiable system. See generally
Arnold, The Criminal Trial As a Symbol of Public Morality, in
Criminal Justice In Our Time 137 (A. Howard ed. 1967).
FURMAN v. GEORGIA 371
238 MARSHALL, J., concurring
Yet, I firmly believe that we have not deviated in the
slightest from the principles with which we began.
At a time in our history when the streets of the Nation's
cities inspire fear and despair, rather than pride
and hope, it is difficult to maintain objectivity and concern
for our fellow citizens. But, the measure of a
country's greatness is its ability to retain compassion in
time of crisis. No nation in the recorded history of man
has a greater tradition of revering justice and fair treatment
for all its citizens in times of turmoil, confusion, and
tension than ours. This is a country which stands tallest
in troubled times, a country that clings to fundamental
principles, cherishes its constitutional heritage, and rejects
simple solutions that compromise the values that lie
at the roots of our democratic system.
In striking down capital punishment, this Court does
not malign our system of government. On the contrary,
it pays homage to it. Only in a free society
could right triumph in difficult times, and could civilization
record its magnificent advancement. In recognizing
the humanity of our fellow beings, we pay ourselves
the highest tribute. We achieve "a major milestone in
the long road up from barbarism" 1
"• and join the approximately
70 other jurisdictions in the world which
celebrate their regard for civilization and humanity by
shunning capital punishment.1c5
I concur in the judgments of the Court.
[Appendices I, II, and III follow.]
164 R. Clark, Crime in America 336 ( 1970).
165 Some jurisdictions have de facto abolition; others have de jure.
Id., at 330; Hearings, supra, n. 80, at 9-10 (statement of JU. DiSalle).
See generally Patrick, The Status of Capital Punishment: A World
Perspective, 56 J. Crim. L. C. & P. S. 397 (1965); United Nations,
supra, n. 77, 10-17, 63-65, at 83-85, 96-97; Brief for Petitioner
in Ko. 68-5027, App. E (Aikens v. California, 406 U.S. 813 (1972)).
372 OCTOBER TERM, 1971
Appendix I to opinion of :MARSHALL, J., concurring 408 U.S.
APPENDIX I TO OPINION OF MARSHALL, J.,
CONCURRING
ABOLITION OF THE DEATH PENALTY IN THE UNITED
STATES: 1846-1968
(States are listed according to year most recent action was taken)
Year of Year of
partial complete Year of Year of
State abolition abolition restoration reabolition
New York ......... 1965 1
Vermont .......... 1965 2
West Virginia ...... 1965
Iowa ............. 1872 1878 1965
Oregon ........... 1914 1920 1964
Michigan ......... 1847 3 1963
Delaware ......... 1958 1961
Alaska ........... 1957
Hawaii " .......... 1957
South Dakota ...... 1915 1939
Kansas ........... 1907 1935
Missouri .......... 1917 1919
Tennessee ......... 1915 4 1919
Washington ....... 1913 1919
Arizona .......... 1916 5 1918
North Dakota ..... 1915 6
Minnesota ........ 1911
Colorado .......... 1897 1901
Maine ............ 1876 1883 1887
Wisconsin ........ 1853
Rhode Island ...... 1852 7
1 Death penalty retained for persons found guilty of killing a peace
officer who is acting in line of duty, and for prisoners under a life
sentence who murder a guard or inmate while in confinement or
while escaping from confinement.
2 Death penalty retained for persons convicted of first-degree murder
who commit a second "unrelated" murder, and for the first-degree
murder of any law enforcement officer or prison employee who is in
the performance of the duties of his office.
3 Death penalty retained for treason. Partial abolition was voted
in 1846, but was not put into effect until 1847.
• Death penalty retained for rape.
5 Death penalty retained for treason.
6 Death penalty retained for treason, and for first-degree murder
committed by a prisoner who is serving a. life sentence for first-degree
murder.
7 Death penalty retained for persons convicted of committing murder
while serving a life sentence for any offense.
Based on National Prisoner Statistics No. 45, Capital Puni~hmP.nt.
1930-1968, p. 30 (Aug. 1969).
FURMAN V. GEORGIA 373
238 Appendix II to opinion of MARSHALL, J., concurring
APPENDIX II TO OPINION OF MARSHALL, J.,
CONCURRING
CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATIO~,
A~D NUMBER OF EXECUTIONS IN CERTAIN"
AMERICAN STATES: 1920--1955
Year Maine• N. H. Vt. Mass. R. I.• Conn.
Rates Exec. Rn tes Exec. Rn tes Exec. Rates Exer.
1920 -------- 1.4 1.8 2.3 2.1 1 1.8 3.9 1
1921 -------- 2.2 2.2 1.7 2.8 3.1 2.9 2
1922 -------- 1.7 1.6 1.1 2.6 2.2 2.9 1
1923 -------- 1.7 2.7 1.4 2.8 1 3.5 3.1
1924 -------- Ui 1.5 .6 2.7 1 2.0 3.5
1925 -------- 2.2 1.3 ,6 2.7 1.8 3.7
l.926 -------- 1.1 .9 2.2 2.0 1 3.2 2.9 1
1927 -------- 1.9 .7 .8 2.1 6 2.7 2.3 2
1928 -------- 1.6 1.3 1.4 1.9 3 2.7 2.7
1929 -------- 1.0 1.5 1.4 1.7 6 2.3 2.6 1
1930 -------- 1.8 .9 1.4 1.8 2.0 3.2 2
1931 -------- 1.4 2.1 1.1 1 2.0 2 2.2 2.7
1932 -------- 2.0 .2 1.1 2.1 1 1.6 2.9
1933 --..---- -- 3.3 2.7 1.6 2.5 1.9 1.8
1934 --- ----- 1.1 1.4 1.9 2.2 4 1.8 2.4
193ti -------- 1.4 1,0 .3 1.8 4 1.6 1.9
1936 -------- 2.2 1.0 2.1 1.6 2 1.2 2.7 1
1937 -------- 1.4 1.8 1.8 1.9 2.3 2.0 1
1938 -------- 1.5 1.8 1.3 1.3 3 1.2 2.1 1
1939 -------- 1.2 2.3 1 .8 1.4 2 1.6 1.3
1940 -------- 1.5 1.4 .8 1.5 1.4 1.8 2
1941 - ------- 1.1 .4 2.2 1.3 1 .8 2.2
1942 -------- 1.7 .2 .9 1.3 2 1.2 2.ti
1943 -------- 1.7 .9 .6 .9 3 1.5 1.6 2
1944 - --- ---- 1.5 1.1 .3 1.4 ,6 1.9 1
1945 -------- .9 .7 2.9 1.5 1.1 1.5 1
1946 -------- 1.4 .8 1.7 1.4 1 1.5 1.6 3
1947 -------- 1.2 .6 1.1 1 1.6 2 1.5 1.9
1948 -------- 1.7 1.0 .8 1.4 2,7 1.7 1
1949 -------- 1.7 1.5 .5 1.1 .5 1.8
1950 ----- --- 1.5 1.3 .5 1.3 1.5 1.4
1951 -------- 2.3 .6 ,5 1.0 .9 2.0
1952 -------- 1.0 1.ti .5 1.0 1.5 1.7
1953 -------- 1,4 .9 .3 1.0 .6 1.5
1954 ------ -- 1.7 .5 1.6 2 1.0 1.3 1.3
1955 -------- 1.2 1.1 .5 1.2 1.7 1.3 3
•Maine has totally nbollsbed the death penalty, and Rhode Island hu8
seYerely limited Its !mposl tlon, Based on ALI, supra, n. 98, at 25.
374 OCTOBER TERM, 1971
Appendix III to opinion of MARSHALL, J ., concurring 408 U.S.
APPENDIX III TO OPINION OF MARSHALL, J.,
CONCURRING
CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION,
AND NUMBER OF EXECUTIONS IN CERTAIN
AMERICAN STATES: 1920-1955
Year M!ch.• Ohio Ind. Minn.• Iowa Wls. • N.D. • S.D. Neb.
Rate Ex. Rate Ex. Rate Ex. Rate Ex. Rate Ex.
1920 ___ 5.5 6.9 3 4.7 2 3.1 •• 1.7 .. .. • •• 4.2
1921_ __ 4.7 7.9 10 6.4 4.4 2.2 4.9
1922 ___ 4,3 7.3 12 5.7 2 3.6 3 1.8 4.5
1923 ___ 6.1 7.8 10 6.1 2.9 2.1 2 2.2 4.1
1924 ___ 7.1 6.9 10 7.3 3.2 2.7 1 1.8 2.1 4.4
1925 ___ 7.4 8.1 13 6.6 1 3.8 2.7 2 2.3 2.0 4.0
1926 ___ 10.4 8.6 7 5.8 3 2.2 2.3 2.6 1.8 2.7
1927 ___ 8.2 8.6 8 6.3 1 2.6 2.4 2.6 1.6 3.5
1928 ___ 7.0 8.2 7 7.0 1 2.8 2.3 2.1 1.0 3.7
1929 ___ 8.2 8.3 5 7.0 1 2.2 2.6 2.3 1.2 3.0
1930 ___ 6.1 9.3 8 6.4 1 3.8 3.2 3.1 3.5 1.9 3.5
1931_ __ 6.2 9.0 10 6.5 1 2.9 2.5 1 3.6 2.0 2.3 3.6
1932 ___ 5.7 8.1 7 6.7 2 2.9 2.9 2.8 1.2 1.6 3.7
1933 ___ 5.1 8.2 11 5.6 3 3.5 2.9 1.9 1.2 1.7 3.2
1934-___ 4.2 7.7 7 7.1 4 3.4 2.3 2.4 1.6 3.0 4.4
1935 ___ 4.2 7.1 10 4.4 2 2.6 2.0 3 1.4 2.3 2.0 3.4
1935 ___ 4.0 6.6 6 5.2 2 2.3 1.8 1.7 2.0 1.2 2.5
1937 ___ 4.6 5.7 1 4.7 :; 1.6 2.2 2.2 1.6 .1 2.0
1938 ___ 3.4 5.1 12 4.4 8 1.6 1.4 4 2.0 2.4 .9 1.6
1939 ___ 3.1 4.8 10 3.8 3 1,6 1.8 1.4 1.2 2.8 2.1
1940 ___ 3.0 4.6 2 3.3 1.2 1.3 1 1.3 1.4 2.2 1.0
1941_ __ 3.2 4.2 4 3.1 1 1.7 1.3 1 1.4 2.3 1.0 2.1
1942 ___ 3.2 4.6 2 3.2 1 1.7 1.2 1.6 1.4 .9 1.8
1943 ____ 3.3 4.4 5 2,8 1.2 1.0 1.1 .6 1.4 2.4
1944 ___ 3.3 3.9 2 2.8 1.4 1.7 1 .9 .9 1.6 1.3
1945 ____ 3.7 4,9 7 4.0 1 1.9 1.6 1 1.6 1.0 2.0 1.2 1
1946 ___ 3.2 5.2 2 3.9 1 1.6 1.8 2 .9 1.5 1.1 2.1
1947 ___ 3.8 4.9 5 3.8 1.2 1.9 1.4 .4 1.0 1 2.2
1948 ___ 3.4 4.5 7 4.2 1.9 1.4 .9 .9 2.0 2.5 1
1949 ____ 3.5 4.4 15 3.2 3 1.1 .9 1 1.3 .1 2.3 1.8
1950 ___ 3.9 4.1 4 3.6 1 1.2 1.3 1.1 .5 1.1 2.9
195L ___ 3.7 3.8 4 3.9 1 1.3 1.5 1.1 .5 .9 1.0
19:-;2 ___ 3.3 4.0 4 3.8 1.3 1.5 1 1.6 .8 2.3 1.6 1
1953 ___ 4.6 3.6 4 4.0 1.5 1.1 1.2 1.1 1.1 2.0
1954_ __ 3.3 3.4 4 3.2 1.0 1.0 1.1 .5 1.5 2.3
1955 ___ 3.3 3.1 3.1 1.1 1.2 1.1 .8 1.8 1.3
*Michigan, Minnesota, and Wisconsin have completely abolis hed capital
punishment. North Dakota has severely r estricted Its use.
• •Iowa, North Dakota, and South Dakota were not admitted to the nat!
onal death registration area until 1923, 1924, and 1930 respectively.
•••South Dakota introduced the death penalty in 1939.
Based on ALI, supra, n. 98, at 28. See also id., at 32- 34.
FURMAN v. GEORGIA 375
238 BURGER, C. J., dissenting
MR. CHIEF JUSTICE BuRGER, with whom MR. JUSTICE
BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE
REHNQUIST join, dissenting.
At the outset it is important to note that only two
members of the Court, MR. JUSTICE BRENNAN and MR.
JusTICE MARSHALL, have concluded that the Eighth
Amendment prohibits capital punishment for all crimes
and under all circumstances. MR. JUSTICE DouGLAS has
also determined that the death penalty contravenes the
Eighth Amendment, although I do not read his opinion
as necessarily requiring final abolition of the penalty.1
For the reasons set forth in Parts I-IV of this opinion,
I conclude that the constitutional prohibition against
"cruel and unusual punishments" cannot be construed
to bar the imposition of the punishment of death.
MR. JUSTICE STEWART and MR. JusTICE WHITE have
concluded that petitioners' death sentences must be set
aside because prevailing sentencing practices do not
comply with the Eighth Amendment. For the reasons
set forth in Part V of this opinion, I believe this approach
fundamentally misconceives the nature of the
Eighth Amendment guarantee and flies directly in the
face of controlling authority of extremely recent vintage.
I
If we were possessed of legislative power, I would
either join with MR. JUSTICE BRENNAN and MR. JUSTICE
MARSHALL or, at the very least, restrict the use of capital
punishment to a small category of the most heinous
crimes. Our constitutional inquiry, however, must be divorced
from personal feelings as to the morality and efficacy
of the death penalty, and be confined to the meaning
and applicability of the uncertain language of the Eighth
Amendment. There is no novelty in being called upon to
interpret a constitutional provision that is less than
1 See n. 25, infra.
376 OCTOBER TERM, 1971
BuRGER, C. J., dissenting 408U.S.
self-defining, but, of all our fundamental guarantees, the
ban on "cruel and unusual punishments" is one of the
most difficult to translate into judicially manageable
terms. The widely divergent views of the Amendment
expressed in today's opinions reveal the haze that surrounds
this constitutional command. Yet it is essential
to our role as a court that we not seize upon the enigmatic
character of the guarantee as an invitation to
enact our personal predilections into law.
Although the Eighth Amendment literally reads as prohibiting
only those punishments that are both "cruel" and
"unusual," history compels the conclusion that the Constitution
prohibits all punishments of extreme and barbarous
cruelty, regardless of how frequently or infrequently
imposed.
The most persuasive analysis of Parliament's adoption
of the English Bill of Rights of 1689-the unquestioned
source of the Eighth Amendment wordingsuggests
that the prohibition against "cruel and unusual
punishments" was included therein out of aversion
to severe punishments not legally authorized and not
within the jurisdiction of the courts to impose. To the
extent that the term "unusual" had any importance in
the English version, it was apparently intended as a
reference to illegal punishments.2
2 See Granucci, "Nor Cruel and Unusual Punishments Inflicted:"
The Original Meaning, 57 Calif. L. Rev. 839, 852-860 (1969). Earlier
drafts of the Bill of Rights used the phrase "cruel and illegal." It is
thought that the change to the "cruel and unusual" wording was
inadvertent and not intended to work any change in meaning. Ibid.
The historical background of the English Bill of Rights is set forth
in the opinion of MR. JUSTICE MARSHALL, ante, at 316--318.
It is intimated in the opinion of MR. JusTrcE DouGLAS, ante, at
242-245, that the term "unusual" was included in the English Bill of
Rights as a protest against the discriminatory application of puni~hments
to minorities. However, the history of capital punishment in
FURMAN v. GEORGIA 377
238 BURGER, C. J., dissenting
From every indication, the Framers of the Eighth
Amendment intended to give the phrase a meaning far
different from that of its English precursor. The records
of the debates in several of the state conventions called
to ratify the 1789 draft Constitution submitted prior to
the addition of the Bill of Rights show that the Framers'
exclusive concern was the absence of any ban on tortures.3
The later inclusion of the ''cruel and unusual punishments"
clause was in response to these objections. There
was no discussion of the interrelationship of the terms
"cruel" and "unusual," and there is nothing in the debates
supporting the inference that the Founding Fathers
would have been receptive to torturous or excessively
cruel punishments even if usual in character or authorized
by law.
The cases decided under the Eighth Amendment are
consistent with the tone of the ratifying debates. In
Wilkerson v. Utah, 99 U.S. 130 (1879'), this Court held
that execution by shooting was not a prohibited mode of
carrying out a sentence of death. Speaking to the mean-
England dramatically reveals that. no premium was placc>d on eriual
justice for all, either before or after the Bill of Rights of 1689. From
the time of Richard I until 1826 the death penalty was authorized in
England for treason and all felonies except. larceny and mayhem
with the further exception that persons entitled to benl'fit of clzrgy
were subject to no penalty or at most a very lenient penalty upon
the commission of a felony. Benefit of clergy grew out of the exemption
of the clergy from the jurisdiction of the lay courts. The
exemption expanded to include assistants to clergymen, and by
1689, any male who could read. Although by 1689 numerous felonies
had been deemed "nonclergyable," the disparity in punishments
imposed on thr educated and uneducated remained for most felonies
until the early 18th century. See 1 J. Stephen, History of the
Criminal Law of England 458 et seq. (1883).
3 See 2 J. Elliot's Debates 111 (2d ed. 1876); 3 id., at 447- 448,
451- 452.
378 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 U.S.
ing of the Cruel and Unusual Punishments Clause. the
Court stated,
"[I] t is safe to affirm that punishments of torture
. . . and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to
the Constitution." Id., at 136.
The Court made no reference to the role of the term
"unusual" in the constitutional guarantee.
In the case of In re Kemmler, 136 U. S. 436 (1890),
the Court held the Eighth Amendment inapplicable to
the States and added the following dictum:
"So that, if the punishment prescribed for an offence
against the laws of the State were manifestly
cruel and unusual, as burning at the stake, crucifixion,
breaking on the wheel, or the like, it would be
the duty of the courts to adjudge such penalties to
be within the . . . [prohibition of the New York
constitution]. And we think this equally true of the
Eighth Amendment, in its application to Congress.
" ... Punishments are cruel when they involve
torture or a lingering death; but the punishment of
death is not cruel, within the meaning of that word
as used in the Constitution. It implies there something
inhuman and barbarous, something more than
the mere extinguishment of life." Id., at 446-447.
This language again reveals an exclusive concern with
extreme cruelty. The Court made passing reference to
the finding of the New York courts that electrocution
was an aunusual" punishment, but it saw no need to
discuss the significance of that term as used in the Eighth
Amendment.
Opinions in subsequent cases also speak of extreme
cruelty as though that were the sum and substance of the
constitutional prohibition. See O'Neil v. Vermont, 144
U.S. 323, 339- 340 (1892) (Field, J., dissenting); Weems
FURMAN v. GEORGIA 379
238 BURGER, C. J., dissenting
v. United States, 217 U. S. 349, 372-373 (1910); Louisiana
ex rel. Francis v. Resweber, 329 U.S. 459,464 (1947).
As summarized by Mr. Chief Justice Warren in the plurality
opinion in Trap v. Dulles, 356 U. S. 86, 100 n. 32
(1958):
"Whether the word 'unusual' has any qualitative
meaning different from 'cruel' is not clear. On the
few occasions this Court has had to consider the
meaning of the phrase, precise distinctions between
cruelty and unusualness do not seem to have been
drawn. See Weems v. United States, supra; O'Neil
v. Vermont, supra; Wilkerson v. Utah, supra. These
cases indicate that the Court simply examines the
particular punishment involved in light of the basic
prohibition against inhuman treatment, without regard
to any subtleties of meaning that might be
latent in the word 'unusual.'"
I do not suggest that the presence of the word '•'unusual"
in the Eighth Amendment is merely vestigial,
having no relevance to the constitutionality of any punishment
that might be devised. But where, as here,
we consider a punishment well known to history, and
clearly authorized by legislative enactment, it disregards
the history of the Eighth Amendment and all the judicial
comment that has followed to rely on the term "unusual"
as affecting the outcome of these cases. Instead,
I view these cases as turning on the single question
whether capital punishment is "cruel" in the constitutional
sense. The term "unusual" cannot be read as
limiting the ban on "cruel" punishments or as somehow
expanding the meaning of the term "cruel." For
this reason I am unpersuaded by the facile argument
that since capital punishment has always been cruel in
the everyday sense of the word, and has become unusual
due to decreased use, it is, therefore, now "cruel and
unusual."
380 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 U.S.
II
Counsel for petitioners properly concede that capital
punishment was not impermissibly cruel at the time of
the adoption of the Eighth Amendment. Not only do
the records of the debates indicate that the Founding
Fathers were limited in their concern to the prevention of
torture, but it is also clear from the language of the
Constitution itself that there was no thought whatever
of the elimination of capital punishment. The
opening sentence of the Fifth Amendment is a guarantee
that the death penalty not be imposed "unless
on a presentment or indictment of a Grand Jury."
The Double Jeopardy Clause of the Fifth Amendment
is a prohibition against being "twice put in
jeopardy of life" for the same offense. Similarly, the
Due Process Clause commands "due process of law" before
an accused can be "deprived of life, liberty, or property."
Thus, the explicit language of the Constitution
affirmatively acknowledges the legal power to impose
capital punishment; it does not expressly or by implication
acknowledge the legal power to impose any of the
various punishments that have been banned as cruel since
1791. Since the Eighth Amendment was adopted on
the same day in 1791 as the Fifth Amendment, it hardly
needs more to establish that the death penalty was not
"cruel" in the constitutional sense at that time.
In the 181 years since the enactment of the Eighth
Amendment, not a single decision of this Court has cast
the slightest shadow of a doubt on the constitutionality
of capital punishment. In rejecting Eighth Amendment
attacks on particular modes of execution, the
Court has more than once implicitly denied that capital
punishment is impermissibly "cruel" in the constitutional
sense. Wilkerson v. Utah, 99 U.S. 130 (1879); Louisiana
ex rel. Francis v. Resweber, 329 U. S., at 464. In
FURMAN v. GEORGIA 381
238 BURGER, C. J., dissenting
re Kemmler, 136 U. S. 436 (1890) (dictum). It is only
14 years since Mr. Chief Justice Warren, speaking for
four members of the Court, stated without equivocation:
""Whatever the arguments may be against capital
punishment, both on moral grounds and in terms
of accomplishing the purposes of punishment--and
they are forceful-the death penalty has been employed
throughout our history, and, in a day when
it is still widely accepted, it cannot be said to violate
the constitutional concept of cruelty." Trap v.
Dulles, 356 U. S., at 99.
It is only one year since Mr. Justice Black made his feelings
clear on the constitutional issue:
"The Eighth Amendment forbids 'cruel and unusual
punishments.' In my view, these words cannot be
read to outlaw capital punishment because that
penalty was in common use and authorized by law
here and in the countries from which our ancestors
came at the time the Amendment was adopted. It
is inconceivable to me that the framers intended to
end capital punishment by the Amendment." Mc-
Gautha v. California, 402 U. S. 183, 226 (1971)
(separate opinion).
By limiting its grants of certiorari, the Court has refused
even to hear argument on the Eighth Amendment
claim on two occasions in the last four years. Witherspoon
v. Illino-is, cert. granted, 389 U. S. 1035, rev'd,
391 U. S. 510 (1968); McGautha v. California, cert.
granted, 398 U.S. 936 (1970), aff'd, 402 U.S. 183 (1971).
In these cases the Court confined its attention to the
procedural aspects of capital trials, it being implicit that
the punishment itself could be constitutionally imposed.
Nonetheless, the Court has now been asked to hold that
a punishment clearly permissible under the Constitution
at the time of its adoption and accepted as such by every
382 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 U.S.
member of the Court until today, is suddenly so cruel
as to be incompatible with the Eighth Amendment.
Before recognizing such an instant evolution in the
law, it seems fair to ask what factors have changed that
capital punishment should now be "cruel" in the constitutional
sense as it has not been in the past. It is
apparent that there has been no change of constitutional
significance in the nature of the punishment itself.
Twentieth century modes of execution surely involve
no greater physical suffering than the means employed
at the time of the Eighth Amendment's adoption. And
although a man awaiting execution must inevitably experience
extraordinary mental anguish,4 no one suggests
that this anguish is materially different from that
experienced by condemned men in 179,1, even though
protracted appellate review processes have greatly increased
the waiting time on "death row." To be sure,
the ordeal of the condemned man may be thought cruel
in the sense that all suffering is thought cruel. But
if the Constitution proscribed every punishment producing
severe emotional stress, then capital punishment
would clearly have been impermissible in 1791.
However, the inquiry cannot end here. For reasons
unrelated to any change in intrinsic cruelty, the Eighth
Amendment prohibition cannot fairly be limited to those
punishments thought excessively cruel and barbarous at
the time of the adoption of the Eighth Amendment.
A punishment is inordinately cruel, in the sense we
must deal with it in these cases, chiefly as perceived
by the society so characterizing it. The standard of
extreme cruelty is not merely descriptive, but necessarily
embodies a moral judgment. The standard itself remains
the same, but its applicability must change as
the basic mores of society change. This notion is not
4 But see Bluestone & McGahee, Reaction to Extreme Stress:
Impending Death by Execution, 119 Am. J. Psychiatry 393 (1962).
FURMAN v. GEORGIA 383
238 BURGER, C. J., dissenting
new to Eighth Amendment adjudication. In Weems v.
United States, 217 U. S. 349 (1910), the Court referred
with apparent approval to the opinion of the commentators
that "[t]he clause of the Constitution ... may be
therefore progressive, and is not fastened to the obsolete
but may acquire meaning as public opinion becomes
enlightened by a humane justice." 217 U. S., at 378.
Mr. Chief Justice Warren, writing the plurality opinion
in Trop v. Dulles, supra, stated, "The Amendment must
':draw its meaning from the evolving standards of decency
that mark the progress of a maturing society." 356 U.S.,
at 101. Nevertheless, the Court up to now has never
actually held that a punishment has become impermissibly
cruel due to a shift in the weight of accepted social
values; nor has the Court suggested judicially manageable
criteria for measuring such a shift in moral
consensus.
The Court's quiescence in this area can be attributed
to the fact that in a democratic society legislatures, not
courts, are constituted to respond to the will and consequently
the moral values of the people. For this
reason, early commentators suggested that the "cruel
and unusual punishments" clause was an unnecessary
constitutional provision.5 As acknowledged in the
principal brief for petitioners, "both in constitutional
contemplation and in fact, it is the legislature, not the
Court, which responds to public opinion and immediately
reflects the society's standards of decency." 6
5 See 2 J. Story, On the Constitution § 1903 (5th ed. 1891); 1
T. Cooley, Constitutional Limitations 694 (8th ed. 1927). Sec also
Joseph Story on Capital Punishment (ed. by J. Hogan), 43 Calif. L.
Rev. 76 (1955).
6 Brief for Petitioner in Aikens v. CaUfornia, No. 6&---5027, p. 19
(cert. dismissed, 406 U. S. 813 (1972)). See post, at 443 n. ;~s.
This, plainly, was the foundation of Mr. Justice Black's strong views
on this subject expressed most recently in McGautha v. California,
402 U. S. 183, 226 (1971) (separate opinion).
384 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 U.S.
Accordingly, punishments such as branding and the
cutting off of ears, which were commonplace at the
time of the adoption of the Constitution, passed from
the penal scene without judicial intervention because
they became basically offensive to the people and the
legislatures responded to this sentiment.
Beyond any doubt, if we were today called upon to
review such punishments, we would find them excessively
cruel because we could say with complete assurance that
contemporary society universally rejects such bizarre penalties.
However, this speculation on the Court's probable
reaction to such punishments is not of itself significant.
The critical fact is that this Court has never had to hold
that a mode of punishment authorized by a domestic
legislature was so cruel as to be fundamentally at odds
with our basic notions of decency. Cf. Weems v. United
States, supra. Judicial findings of impermissible cruelty
have been limited, for the most part, to offensive punishments
devised without specific authority by prison
officials, not by legislatures. See, e. g., Jackson v.
Bishop, 404 F. 2d 571 (CA8 1968); Wright v. McMann,
387 F. 2d 519 (CA2 1967). The paucity of judicial
decisions invalidating legislatively prescribed punishments
is powerful evidence that in this country legislatures
have in fact been responsive-albeit belatedly
at times-to changes in social attitudes and moral values.
I do not suggest that the validity of legislatively authorized
punishments presents no justiciable issue under
the Eighth Amendment, but, rather, that the primacy of
the legislative role narrowly confines the scope of judicial
inquiry. Whether or not provable, and whether or not
true at all times, in a democracy the legislative judgment
is presumed to embody the basic standards of
decency prevailing in the society. This presumption
can only be negated by unambiguous and compelling
evidence of legislative default.
FURMAN v. GEORGIA 385
238 BunGER, C. J., dissenting
III
There are no obvious indications that capit.al punishment
off ends the conscience of society to such a degree
that our traditional deference to the legislative judgment
must be abandoned. It is not a punishment such
as burning at the stake that everyone would ineffably
find to be repugnant to all civilized standards.
Nor is it a punishment so roundly condemned that only
a few aberrant legislatures have retained it on the statute
books. Capital punishment is authorized by statute
in 40 States, the District of Columbia, and in the
federal rourts for the commission of certain crimes.7 On
four occasions in the last 11 years Congress has added to
the list of federal crimes punishable by death.8 In looking
for reliable indicia of contemporary attitude, none
more trustworthy has been advanced.
One conceivable source of evidence that legislatures
have abdicated their essentially barometric role with
respect to community values would be public opinion
polls, of which there have been many in the past decade
addressed to the question of capital punishment. Without
assessing the reliability of such polls, or intimating
that any judicial reliance could ever be placed on them,
1 See Department of Justice, National Prisoner Statistics ~o. 46,
Capital Punishment 1930-1970, p. 50 (Aug. 1971). Since the publication
of the Department of Justice report, capital punishment has
been judicially abolished in California, People v. Anderson, 6 Cal. 3d
628, 493 P. 2d 880, crrt. denied, 406 U. S. 958 ( 1972). The States
where capital punishment is no longer authorized are Alaska, California,
Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West
Virginia, and Wisconsin.
8 See Act of Jan. 2, 1971, Pub. L. 91-644, Tit. IV, § 15, 84 Stat.
1891, 18 U. S. C. § 351; Act of Oct. 15, 1970, Pub. L. 91- 452,
Tit. XI, § 1102 (a), 84 Stat. 956, 18 U. S. C. § 844 (f) (i); Act of
Aug. 28, 1965, 79 Stat. 580, 18 U. S. C. § 1751; Act of Sept. 5,
1961, § I, 75 Stat. 466, 49 U.S. C. § 1472 (i). Sec also opinion of
MR. Jusnct, BLACKMON, post, at 412-413.
386 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 U.S.
it need only be noted that the reported results have
shown nothing approximating the universal condemnation
of capital punishment that might lead us to suspect
that the legislatures in general have lost touch with
current social values.9
Counsel for petitioners rely on a different body of
empirical evidence. They argue, in effect, that the number
of cases in which the death penalty is imposed, as
compared with the number of cases in which it is statutorily
available, reflects a general revulsion toward the
penalty that would lead to its repeal if only it were more
generally and widely enforced. It cannot be gainsaid
that by the choice of jurie&-and sometimes judges 10-
the death penalty is imposed in far fewer than half the
cases in which it is available.11 To go further and char-
9 A 1966 poll indicated that 42% of those polled favored capital
punishment while 47% opposed it, and 11 % had no opinion. A
1969 poll found 51 % in favor, 40% opposed, and 9% with no
opinion. See Erskine, The Polls: Capital Punishment, 34 Public
Opinion Quarterly 290 (1970).
10 The jury plays the predominant role in sentencing in capital
cases in this country. Available evidence indicates that where the
judge determines the sentence,. the death penalty is imposed with
a slightly greater frequency than where the jury makes the determination.
H. Kalven & H. Zeise!, The American Jury 436 (1966).
11 In the decade from 1961-1970, an average of 106 persons per
year received the death sentence in the United States, ranging from
a low of 85 in 1967 to a high of 140 in 1961; 127 persons received
the death sentence in 1970. Department of Justice, National Prisoner
Statistics Ko. 46, Capital Punishment 1930--1970, p. 9. See
also Bedau, The Death Penalty in America, 35 Fed. Prob., .No. 2,
p. 32 (1971). Although accurate figures are difficult to obtain, it
is thought that from 15% to 20% of those convicted of murder
are sentenced to death in States where it is authorized. See, e. g.,
McGee, Capital Punishment as Seen by a Correctional Administrator,
28 Fed. Prob., Ko. 2, pp. 11, 12 (1964); Bedau, Death Sentences
in New Jersey 1907-1960, 19 Rutgers L. Rev. 1, 30 (1964);
Florida Division of Corrections, Seventh Biennial Report (July 1,
1968, to June 30, 1970) 82 (1970); H. Kalven & H. Zeise!, The
FURMAN v. GEORGIA 387
238 BURGER, C. J., dissenting
acterize the rate of imposition as "freakishly rare,'' as
petitioners insist, is unwarranted hyperbole. And regardless
of its characterization, the rate of imposition
does not impel the conclusion that capital punishment
is now regarded as intolerably cruel or uncivilized.
It is argued that in those capital cases where juries
have recommended mercy, they have given expression to
civilized values and effectively renounced the legislative
authorization for capital punishment. At the same time
it is argued that where juries have made the awesome
decision to send men to their deaths, they have acted
arbitrarily and without sensitivity to prevailing standards
of decency. This explanation for the infrequency
of imposition of capital punishme11t is unsupported by
known facts, and is inconsistent in principle with everything
this Court has ever said about the functioning of
juries in capital cases.
In McGautha v. California, supra, decided only one year
ago, the Court held that there was no mandate in the Due
Process Clause of the Fourteenth Amendment that juries
be given instructions as to when the death penalty should
be imposed. After reviewing the autonomy that juries
have traditionally exercised in capital cases and noting
the practical difficulties of framing manageable instructions,
this Court concluded that judicially articulated
standards were not needed to insure a responsible decision
as to penalty. Nothing in M cGautha licenses capital
juries to act arbitrarily or assumes that they have so
acted in the past. On the contrary, the assumption underlying
the M cGautha ruling is that juries "will act with
American Jury 435-436 (1966). The rate of imposition for rape
and the few other crimes made punishable by death in certain States
is considerably lower. See, e. g., Florida Division of Corrr<'tions,
Sevent-h Biennial Report, supra, at 83; Partington, The Inridenre
of the Death Penalty for Rape in Virginia, 22 Wash. & Lee L. Rev.
43-44, 71- 73 (1965).
388 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408U.S.
due regard for the consequences of their decision." 402
U. S., at 208.
The responsibility of juries deciding capital cases in
our system of justice was nowhere better described than
in Witherspoon v. Illinois, supra:
"[A] jury that must choose between life imprisonment
and capital punishment can do little moreand
must do nothing less-than express the con
science of the community on the ultimate question
of life or death."
"And one of the most important functions any jury
can perform in making such a selection is to maintain
a link between contemporary community values
and the penal system-a link without which the determination
of punishment could hardly reflect 'the
evolving standards of decency that mark the progress
of a maturing society' " 391 U. S., at 519 and n. 15
(emphasis added).
The selectivity of juries in imposing the punishment
of death is properly viewed as a refinement on,
rather than a repudiation of, the statutory authorization
for that penalty. Legislatures prescribe th~ categories
of crimes for which the death penalty should be available,
and, acting as "the conscience of the community,"
juries are entrusted to determine in individual cases that
the ultimate punishment is warranted. Juries are undoubtedly
influenced in this judgment by myriad factors.
The motive or lack of motive of the perpetrator, the
degree of injury or suffering of the victim or victims, and
the degree of brutality in the commission of the crime
would seem to be prominent among these factors. Given
the general awareness that death is no longer a routine
punishment for the crimes for which it is made available,
it is hardly surprising that juries have been increasingly
meticulous in their imposition of the penalty. But to
FURMAN v. GEORGIA 389
238 BURGER, C. J., dissenting
assume from the mere fact of relative infrequency that
only a random assortment of pariahs are sentenced to
death, is to cast grave doubt on the basic integrity of
our jury system.
It would, of course, be unrealistic to assume that juries
have been perfectly consistent in choosing the cases
where the death penalty is to be imposed, for no human
institution performs with perfect consistency. There
are doubtless prisoners on death row who would not be
there had they been tried before a different jury or in a
different State. In this sense their fate has been controlled
by a fortuitous circumstance. However, this element
of fortuity does not stand as an indictment either
of the general functioning of juries in capital cases or of
the integrity of jury decisions in individual cases. There
is no empirical basis for concluding that juries have
generally failed to discharge in good faith the responsibility
described in Witherspoon-that of choosing between
life and death in individual cases according to
the dictates of community values.12
12 Counsel for petitioners make the conclusory statement that
"[t]hose who are selected to die are the poor and powerless,
personally ugly and socially unacceptable." Brief for Petitioner in
No. 68-5027, p. 51. However, the sources cited contain no empirical
findings to undermine the general premise that juries impose
the death penalty in the most extreme cases. One study has discerned
a statistically noticeable difference between the rate of imposition
on blue collar and white collar defendants; the study otherwise
concludes that juries do follow rational patterns in imposing
the sentence of death. Note, A Study of the California Penalty
Jury in First-Degree-Murder Cases, 21 Stan. L. Rev. 1297 ( 1969).
See also H. Kalven & H. Zeisel, The American Jury 434-449 (1966).
Statistics are also cited to show that the death penalty has been
imposed in a racially discriminatory manner. Such statistics Buggest,
at least as a historical matter, that Negroes have been sentenced
to death with greater frequency than whites in several States, particularly
for the crime of interracial rape. See, e. g., Koeninger, Capital
Punishment in Texas, 1924-1968, 15 Crime & Delin. 132 (1969);
390 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408U.S.
The rate of imposition of death sentences falls far short
of providing the requisite unambiguous evidence that the
legislatures of 40 States and the Congress have turned
their backs on current or evolving standards of decency
in continuing to make the death penalty available. For,
if selective imposition evidences a rejection of capital
punishment in those cases where it is not imposed, it
surely evidences a correlative affirmation of the penalty
in those cases where it is imposed. Absent some clear
indication that the continued imposition of the death
penalty on a selective basis is violative of prevailing
standards of civilized conduct, the Eighth Amendment
cannot be said to interdict its use.
Note, Capital Punishment in Virginia, 58 Va. L. Rev. 97 (1972). If
a statute that authorizes the discretionary imposition of a particular
penalty for a particular crime is used primarily against
defendants of a certain race, and if the pattern of use can be fairly
explained only by reference to the race of the defendants, the Equal
Protection Clause of the Fourteenth Amendment forbids continued
enforcement of that statute in its existing form. Cf. Yick Wo v.
Hopkins, 118 U. S. 356 (1886); Gomillion v. Lightfoot, 364 U. S.
339 (1960).
To establish that the statutory authorization for a particular
penalty is inconsistent with the dictates of the Equal Protection
Clause, it is not enough to show how it was applied in the distant
past. The statistics that have been referred to us cover periods
when Negroes were systematically excluded from jury service and
when racial segregation was the official policy in many States. Data
of more recent vintage are essential. See Maxwell v. Bishop, 398 F.
2d 138, 148 (CA8 1968), vacated, 398 U.S. 262 (1970)-. While no
statistical survey could be expected to bring forth absolute and
irrefutable proof of a discriminatory pattern of imposition, a strong
showing would have to be made, taking all relevant factors into
account.
It must be noted that any equal protection claim is totally distinct
from thP Eighth AmPndment question to which our grant of {'ertiorari
was limited in these cases. Evidence of a discriminatory
pattern of enforcement does not imply that any use of a particular
punishment is so morally repugnant as to violate the Eighth
Amendment.
FURMAN v. GEORGIA 391
238 BURGER, C. J., dissenting
In two of these cases we have been asked to rule on
the narrower question whether capital punishment offends
the Eighth Amendment when imposed as the punishment
for the crime of forcible rape.13 It is true
that the death penalty is authorized for rape in fewer
States than it is for murder,1• and that even in those
States it is applied more sparingly for rape than for
murder.15 But for the reasons aptly brought out in
the opinion of MR. JUSTICE POWELL, post, at 456-461, I
do not believe these differences can be elevated to the
level of an Eighth Amendment distinction. This blunt
constitutional command cannot be sharpened to carve
neat distinctions corresponding to the categories of
crimes defined by the legislatures.
IV
Capital punishment has also been attacked as violative
of the Eighth Amendment on the ground that it is
not needed to achieve legitimate penal aims and is thus
"unnecessarily cruel." As a pure po-licy matter, this approach
has much to recommend it, but it seeks to give a
dimension to the Eighth Amendment that it was never
intended to have and promotes a line of inquiry that
this Court has never before pursued.
The Eighth Amendment, as I have noted, was included
in the Bill of Rights to guard against the use of
torturous and inhuman punishments, not those of limited
efficacy. One of the few to speak out against the adop-
13 Jackson v. Georgia, No. 69-5030; Branch v. Texas, No. 69-5031.
14 Rape is punishable by death in 16 States and in the federal courts
when committed within the special maritime and territorial jurisdiction
of the United States. 18 U. S. C. § 2031. The States authorizing
capital punishment for rape are Alabama, Arkansas, Florida,
Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada,
North Carolina, Oklahoma, South Carolina, Tennessee, Texas,
and Virginia.
15 See n. 11, supra.
392 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 U.S.
tion of the Eighth Amendment asserted that it is often
necessary to use cruel punishments to deter crimes.'6
But among those favoring the Amendment, no sentiment
was expressed that a punishment of extreme cruelty
could ever be justified by expediency. The dominant
theme of the Eighth Amendment debates was that the
ends of the criminal laws cannot justify the use of
measures of extreme cruelty to achieve them. Cf. Rochin
v. California, 342 U. S. 165, 172--173 (1952).
The apparent seed of the "unnecessary cruelty" argument
is the following language, quoted earlier, found in
Wilkerson v. Utah, supra:
"Difficulty would attend the effort to define with
exactness the extent of the constitutional provision
which provides that cruel and unusual punishments
shall not be inflicted; but it is safe to affirm that
punishments of torture ... and all others in the
same line of unnecessary cruelty, are forbidden by
that amendment to the Constitution." 99 U. S., at
135-136 (emphasis added).
To lift the italicized phrase from the context of the
Wilkerson opinion and now view it as a mandate for
assessing the value of punishments in achieving the aims
of penology is a gross distortion; nowhere are such aims
even mentioned in the Wilkerson opinion. The only
fair reading of this phrase is that punishments similar
to torture in their extreme cruelty are prohibited by the
Eighth Amendment. In Louisiana ex rel. Francis v.
Resweber, 329 U. S., at 463, 464, the Court made reference
to the Eighth Amendment's prohibition against the
infliction of "unnecessary pain" in carrying out an execution.
The context makes abundantly clear that the
Court was disapproving the wanton infliction of phys-
16 1 Annals of Cong. 754 (1789) (remarks of Rep. Livermore).
FURMAN v. GEORGIA 393
238 BURGER, C. J., dissenting
ical pain, and once again not advising pragmatic analysis
of punishments approved by legislatures.'1
Apart from these isolated uses of the word "unnecessary,"
nothing in the cases suggests that it is for the
courts to make a determination of the efficacy of punishments.
The decision in Weems v. United States,
supra, is not to the contrary. In Weems the Court held
that for the crime of falsifying public documents, the
punishment imposed under the Philippine Code of 15
years' imprisonment at hard labor under shackles, followed
by perpetual surveillance, loss of voting rights,
loss of the right to hold public office, and loss of right
to change domicile freely, was violative of the Eighth
Amendment. The case is generally regarded as holding
that a punishment may be excessively cruel within
the meaning of the Eighth Amendment because it is
grossly out of proportion to the severity of the crime; 18
some view the decision of the Court primarily as
11 Petitioner Francis had been sentenced to be electrocuted for
the crime of murder. He was placed in the electric chair, and the
executioner threw the switch. Due to a mechanical difficulty, death
did not result. A new death warrant was issued fixing a second date
for execution. The Court held that the proposed execution would
not constitute cruel and unusual punishment or double jeopardy.
18 There is no serious claim of disproportionality presented in
these cases. Murder and forcible rape have always been regarded
as among the most serious crimes. It cannot be said that the punishment
of death is out of all proportion to the severity of these crimes.
The Court's decision in Robinson v. Cali/ ornia, 370 U. S. 660
( 1962), can be viewed as an extension of the disproportionality
doctrine of the Eighth Amendment. The Court held that a statute
making it a. crime punishable by imprisonment to be a narcotics
addict violated the Eighth Amendment. The Court in effect ruled
that the status of being an addict is not. a criminal act, and that
any crimin:-1 I p1mi~hment imposed for addiction exceeds the penal
power of the States. The Court made no analysis of the necessity
of imprisonment as a, means of curbing addiction.
394 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 U.S.
a reaction to the mode of the punishment itself.'~
Under any characterization of the holding, it is readily
apparent that the decision grew out of the Court's overwhelming
abhorrence of the imposition of the particular
penalty for the particular crime; it was making an essentially
moral judgment, not a dispassionate assessment of
the need for the penalty. The Court specifically disclaimed
"the right to assert a judgment against that
of the legislature of the expediency of the laws .... "
217 U. S., at 378. Thus, apart from the fact that the
Court in Weems concerned itself with the crime committed
as well as the punishment imposed, the case
marks no departure from the largely unarticulable standard
of extreme cruelty. However intractable that standard
may be, that is what the Eighth Amendment is all
about. The constitutional provision is not addressed
to social utility and does not command that enlightened
principles of penology always be followed.
By pursuing the necessity approach, it becomes even
more apparent that it involves matters outside the
purview of the Eighth Amendment. Two of the several
aims of punishment are generally associated with
capital punishment-retribution and deterrence. It is
argued that retribution can be discounted because that,
after all, is what the Eighth Amendment seeks to eliminate.
There is no authority suggesting that the Eighth
Amendment was intended to purge the law of its retributive
elements, and the Court has consistently assumed
that retribution is a legitimate dimension of the punishment
of crimes. See Williams v. New York, 337 U. S.
241, 248 (1949); United States v. Lovett, 328 U. S.
303, 324 (1946) (Frankfurter, J., concurring). Furthermore,
responsible legal thinkers of widely varying
19 See Packer, Makmg the Punishment. Fit the Crime, 77 Harv.
L. Rev. 1071, 1075 {1964).
FURMAN v. GEORGIA 395
238 BURGER, C. J., dissenting
persuasions have debated the sociological and philosophical
aspects of the retribution question for generations,
neither side being able to convince the other.20 It
would be reading a great deal into the Eighth Amendment
to hold that the punishments authorized by
legislatures cannot constitutionally reflect a retributive
purpose.
The less esoteric but no less controversial question is
whether the death penalty acts as a superior deterrent.
Those favoring abolition find no evidence that it does.21
Those favoring retention start from the intuitive notion
that capital punishment should act as the most effective
deterrent and note that there is no convincing evidence
that it does not.22 Escape from this empirical stalemate
is sought by placing the burden of proof on the
States and concluding that they have failed to demonstrate
that capital punishment is a more effective deterrent
than life imprisonment. Numerous justifications
have been advanced for shifting the burden, and they
20 See Hart, The Aims of the Criminal Law, 23 Law & Contemp.
Prob. 401 ( 1958); H. Packer, The Limits of the Criminal San<'tion
37--39 (1968); ~i. Cohen, Reason and Law 41--44 (1950); Report
of Royal Commission on Capital Punishment, 1949-1953, Cmd.
8932, ,- 52, pp. 17-18 (1953); Hart, Murder and the Principles of
Punishment: England and the United States, 52 Nw. U. L. Rev.
433, 446--455 ( 1957); H. L. A. Hart, Law, Liberty and l\forality
60-69 ( 1963) .
21 See, e. g., Sellin, Homicides in Retentionist and Abolitionist
States, in Capital Punishment 135 et seq. (T. Sellin ed. 1967);
Schuessler, The Deterrent Influence of the Death Penalty, 284
Annals 54 (1952).
22 See, e. g., Hoover, Statements in Favor of the Death Penalty,
in H. Bedau, The Death Penalty in America 130 (1967 rev. ed.);
Allen, Capital Punishment: Your Protection and Mine, in The Death
Penalty in America, supra, at 135. Sec also Hart, 52 Nw. U. L.
Rev. supra, at 457; Bedau, The Death Penalty in America , supra,
at 265--266.
396 OCTOBER TERM, 1971
BuRGER, C. J., dissenting 408U.S.
are not without their rhetorical appeal. However, these
arguments are not descended from established constitutional
principles, but are born of the urge to bypass
an unresolved factual question.23 Comparative deterrence
is not a matter that lends itself to precise
measurement; to shift the burden to the States is to
provide an illusory solution to an enormously complex
problem. If it were proper to put the States to the
test of demonstrating the deterrent value of capital punishment,
we could just as well ask them to prove the
need for life imprisonment or any other punishment.
Yet I know of no convincing evidence that life imprisonment
is a more effective deterrent than 20 years' imprisonment,
or even that a $10 parking ticket is a more
effective deterrent than a $5 parking ticket. In fact,
there are some who go so far as to challenge the notion
that any punishments deter crime. 2< If the States are
unable to adduce convincing proof rebutting such assertions,
does it then follow that all punishments are suspect
as being "cruel and unusual" within the meaning of the
Constitution? On the contrary, I submit that the questions
raised by the necessity approach are beyond the
pale of judicial inquiry under the Eighth Amendment.
V
Today the Court has not ruled that capital punishment
is per se violative of the Eighth Amendment; nor
has it ruled that the punishment is barred for any particular
class or classes of crimes. The substantially
similar concurring opinions of MR. JusTICE STEWART
and MR. JusTICE WHITE, which are necessary to support
the judgment setting aside petitioners' sentences, stop
23 See Powell v. Texas, 392 U. S. 514, 531 (1968) (MARSHALL, J.)
(plurality opinion).
24 See, e·. g., K. Menninger, The Crime of Punishment 206-208
(1968).
FURMAN v. GEORGIA 397
238 BuRGER, C. J., dissenting
short of reaching the ultimate question. The actual
scope of the Court's ruling, which I take to be embodied
in these concurring opinions, is not entirely clear. This
much, however, seems apparent: if the legislatures are
to continue to authorize capital punishment for some
crimes, juries and judges can no longer be permitted to
make the sentencing determination in the same manner
they have in the past.25 This approach-not urged in
oral arguments or briefs-misconceives the nature of
the constitutional command against "cruel and unusual
punishments," disregards controlling case law, and demands
a rigidity in capital cases which, if possible of
achievement, cannot be regarded as a welcome change.
Indeed the contrary seems to be the case.
As I have earlier stated, the Eighth Amendment forbids
the imposition of punishments that are so cruel and
inhumane as to violate society's standards of civilized
conduct. The Amendment does not prohibit all punishments
the States are unable to prove necessary to
deter or control crime. The Amendment is not concerned
with the process by which a State determines that
a particular punishment is to be imposed in a particular
case. And the Amendment most assuredly does
not speak to the power of legislatures to confer sentencing
discretion on juries, rather than to fix all sentences
by statute.
The critical factor in the concurring opinions of both
MR. JUSTICE STEWART and MR. JusTICE WHITE is the
infrequency with which the penalty is imposed. This
factor is taken not as evidence of society's abhorrence
25 Much in the concurring opinion of MR. JusTICE DoUGLAS i-imilarly
suggests that it is the sentencing system rather than the punishment
itself that is constitutionally infirm. However, the opinion also
indicates that in the wake of the Court's decision in McGautha v.
California, 402 U.S. 183 (1971), the validity of the sentencing process
is no longer open to question.
398 OCTOBER TERM, 1971
BURGER, C. J., dis:;enting 408U.S.
of capital punishment the inference that petitioners
would have the Court draw-but as the earmark of a
deteriorated system of sentencing. It is concluded that
petitioners' sentences must be set aside, not because the
punishment is impermissibly cruel, but because juries
and judges have failed to exercise their sentencing discretion
in acceptable fashion.
To be sure, there is a recitation cast in Eighth Amendment
terms: petitioners' sentences are "cruel" because
they exceed that which the legislatures have deemed
necessary for all cases; 26 petitioners' sentences are "unusual"
because they exceed that which is imposed in
most cases. 21 This application of the words of the
Eighth Amendment suggests that capital punishment can
be made to satisfy Eighth Amendment values if its rate
of imposition is somehow multiplied; it seemingly follows
that the flexible sentencing system created by the legislatures,
and carried out by juries and judges, has yielded
more mercy than the Eighth Amendment can stand.
The implications of this approach are mildly ironical.
For example, by this measure of the Eighth Amendment,
the elimination of death-qualified juries in Witherspoon
v. Illino-is, 391 U. S. 510 (1968), can only be seen in
retrospect as a setback to "the evolving standards of
decency that mark the progress of a maturing society."
Trop v. Dulles, 356 U. S., at 101.
This novel formulation of Eighth Amendment principles
albeit necessary to satisfy the terms of our limited
grant of certiorari-does not lie at the heart of these
concurring opm1ons. The decisive grievance of the
opinions-not translated into Eighth Amendment terms
is that the present system of discretionary sentencing
26 See concurring opinion of Mn . .TusTICE ~TEWAllT, antr, at
309-310: concurring opinion of MR. JUSTI<'E WHITE, ante, at 312.
27 See concurring opinion of Mtt. ,JUSTICE STEWART, ante, at 309-
310; cf. concurring opinion of Mn. JUSTICE WHITE, ante, at 312.
FURMAN v. GEORGIA 399
238 BURGER, C. J., dissenting
in capital cases has failed to produce evenhanded justice;
the problem is not that too few have been sentenced to
die, but that the selection process has followed no rational
pattern.28 This claim of arbitrariness is not only
lacking in empirical support,29 but also it manifestly fails
to establish that the death penalty is a "cruel and unusual"
punishment. The Eighth Amendment was included
in the Bill of Rights to assure that certain types
of punishments would never be imposed, not to channelize
the sentencing process. The approach of these
concurring opinions has no antecedent in the Eighth
Amendment cases. It is essentially and exclusively a
procedural due process argument.
This ground of decision is plainly foreclosed as well
as misplaced. Only one year ago, in M cGautha v.
California, the Court upheld the prevailing system of
sentencing in capital cases. The Court concluded:
"In light of history, experience, and the present
limitations of human knowledge, we find it quite
impossible to say that committing to the untrammeled
discretion of the jury the power to pronounce
life or death in capital cases is offensive to anything
in the Constitution." 402 U. S., at 207.
In reaching this decision, the Court had the benefit of
extensive briefing, full oral argument, and six months of
careful deliberations. The Court's labors are documented
by 130 pages of opinions in the United States Reports.
All of the arguments and factual contentions accepted
26 This point is more heavily emphasized in the opinion of MR.
,JUSTICE STEWART than in that of MR. JUSTICE WHITE. However,
since Mn. JUSTICE WHITE allows for statutes providing a mandatory
death penalty for "more narrowly defined categories" of crimes, it
appears that he, too, is more concerned with a regularized sentencing
process, than with the aggregate number of death sentences imposed
for all crimes.
29 See n. 12, supra.
400 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 u. s.
in the concurring opinions today were considered and
rejected by the Court one year ago. M cGautha was
an exceedingly difficult case, and reasonable men could
fairly disagree as to the result. But the Court entered
its judgment, and if stare dec-isis means anything, that
decision should be regarded as a controlling pronouncement
of law.
Although the Court's decision in M cGautha was technically
confined to the dictates of the Due Process Clause
of the Fourteenth Amendment, rather than the Eighth
Amendment as made applicable to the States through
the Due Process Clause of the Fourteenth Amendment,
it would be disingenuous to suggest that today's ruling
has done anything less than overrule McGautha in the
guise of an Eighth Amendment adjudication. It may
be thought appropriate to subordinate principles of stare
decisis where the subject is as sensitive as capital punishment
and the stakes are so high, but these external
considerations were no less weighty last year. This pattern
of decisionmaking will do, little to inspire confidence
in the stability of the law.
While I would not undertake to make a definitive statement
as to the parameters of the Court's ruling, it is
clear that if state legislatures and the Congress wish to
maintain the availability of capital punishment, significant
statutory changes will have to be made. Since the
two pivotal concurring opinions turn on the assumption
that the punishment of death is now meted out in a random
and unpredictable manner, legislative bodies may
seek to bring their laws into compliance with the Court's
ruling by providing standards for juries and judges to
follow in determining the sentence in capital cases or by
more narrowly defining the crimes for which the penalty
is to be imposed.30 If such standards can be devised or
ao It was pointed out in the Court's opinion in M cGautha that
these two alternatives are substantially equivalent. 402 U. S., at
206 n. 16.
FURMAN v. GEORGIA 401
238 BuRGER, C. J., dissenting
the crimes more meticulously defined, the result cannot
be detrimental. However, Mr. Justice Harlan's opinion
for the Court in McGautha convincingly demonstrates
that all past efforts "to identify before the fact" the
cases in which the penalty is to be imposed have been
"uniformly unsuccessful." 402 U.S., at 197. One problem
is that "the factors which determine whether the
sentence of death is the appropriate penalty in particular
cases are too complex to be compressed within the limits
of a simple formula .... " Report of Royal Commission
on Capital Punishment, 1949-1953, Cmd. 8932,
ti 498, p. 174 (1953). As the Court stated in McGautha,
" [ t J he infinite variety of cases and facets to each case
would make general standards either meaningless 'boilerplate'
or a statement of the obvious that no jury would
need." 402 U. S., at 208. But even assuming that suitable
guidelines can be established, there is no assurance
that sentencing patterns will change so long as juries are
possessed of the power to determine the sentence or to
bring in a verdict of guilt on a charge carrying a lesser
sentence; juries have not been inhibited in the exercise
of these powers in the past. Thus, unless the Court in
McGautha misjudged the experience of history, there is
little reason to believe that sentencing standards in any
form will substantially alter the discretionary character
of the prevailing system of sentencing in capital cases.
That system may fall short of perfection, but it is yet
to be shown that a different system would produce more
satisfactory results.
Real change could clearly be brought about if legislatures
provided mandatory death sentences in such a way
as to deny juries the opportunity to bring in a verdict on
a lesser charge; under such a system, the death sentence
could only be avoided by a verdict of acquittal. If this
is the only alternative that the legislatures can safely
pursue under today's ruling, I would have preferred that
the Court opt for total abolition.
402 OCTOBER TERM, 1971
BuRGER, C. J., dissenting 408U. S.
It seems remarkable to me that with our basic trust in
lay jurors as the keystone in our system of criminal justice,
it should now be suggested that we take the most sensitive
and important of all decisions away from them. I
could more easily be persuaded that mandatory sentences
of death, without the intervening and ameliorating impact
of lay jurors, are so arbitrary and. doctrinaire that
they violate the Constitution. The very infrequency of
death penalties imposed by jurors attests their cautious
and discriminating reservation of that penalty for the
most extreme cases. I had thought that nothing was
clearer in history, as we noted in M cGautha one year ago,
than the American abhorrence of "the common-law rule
imposing a mandatory death sentence on all convicted
murderers." 402 U. S., at 198. As the concurring
opinion of MR. JusTICE MARSHALL shows, ante, at
339, the 19th century movement away from mandatory
death sentences marked an enlightened introduction of
flexibility into the sentencing process. It recognized that
individual culpability is not always measured by the
category of the crime committed. This change in sentencing
practice was greeted by the Court as a humanizing
development. See Winston v. United States, 172 U. S.
303 (1899); cf. Calton v. Utah, 130 U.S. 83 (1889). See
also Andres v. United States, 333 U. S. 740, 753 (1948)
(Frankfurter, J., concurring). I do not see how this
history can be ignored and how it can be suggested that
the Eighth Amendment demands the elimination of the
most sensitive feature of the sentencing system.
As a general matter, the evolution of penal concepts in
this country has not been marked by great progress, nor
have the results up to now been crowned with significant
success. If anywhere in the whole spectrum of criminal
justice fresh ideas deserve sober analysis, the sentencing
and correctional area ranks high on the list. But it has
been widely accepted that mandatory sentences for
FURMAN v. GEORGIA 403
238 BURGER, C. J., dissenting
crimes do not best serve the ends of the criminal justice
system. Now, after the long process of drawing away
from the blind imposition of uniform sentences for every
person convicted of a particular offense, we are confronted
with an argument perhaps implying that only
the legislatures may determine that a sentence of death
is appropriate, without the intervening evaluation of
jurors or judges. This approach threatens to turn back
the progress of penal reform, which has moved until
recently at too slow a rate to absorb significant setbacks.
VI
Since there is no majority of the Court on the ultimate
issue presented in these cases, the future of capital punishment
in this country has been left in an uncertain
limbo. Rather than providing a final and unambiguous
answer on the basic constitutional question, the collective
impact of the majority's ruling is to demand
an undetermined measure of change from the various
state legislatures and the Congress. While I cannot
endorse the process of decisionmaking that has yielded
today's result and the restraints that that result imposes
on legislative action, I am not altogether displeased that
legislative bodies have been given the opportunity, and
indeed unavoidable responsibility, to make a thorough
re-evaluation of the entire subject of capital punishment.
If today's opinions demonstrate nothing else,
they starkly show that this is an area where legislatures
can act far more effectively than courts.
The legislatures are free to eliminate capital punishment
for specific crimes or to carve out limited exceptions
to a general abolition of the penalty, without adherence
to the conceptual strictures of the Eighth Amendment.
The legislatures can and should make an assessment of
the deterrent influence of capital punishment, both generally
and as affecting the commission of specific types of
404 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408 U.S.
crimes. If legislatures come to doubt the efficacy of
capital punishment, they can abolish it, either completely
or on a selective basis. If new evidence persuades them
that they have acted unwisely, they can reverse their
field and reinstate the penalty to the extent it is thought
warranted. An Eighth Amendment ruling by judges
cannot be made with such flexibility or discriminating
prec1s1on.
The world-wide trend toward limiting the use of capital
punishment, a phenomenon to which we have been
urged to give great weight, hardly points the way to a
judicial solution in this country under a written Constitution.
Rather, the change has generally come about
through legislative action, of ten on a trial basis and with
the retention of the penalty for certain limited classes of
crimes.31 Virtually nowhere has change been wrought
by so crude a tool as the Eighth Amendment. The complete
and unconditional abolition of capital punishment
in this country by judicial fiat would have undermined
the careful progress of the legislative trend and
foreclosed further inquiry on many as yet unanswered
questions in this area.
Quite apart from the limitations of the Eighth Amendment
itself, the preference for legislative action is justified
by the inability of the courts to participate in the
31 See Patrick, The Status of Capital Punishment: A World Perspective,
56 J. Crim. L. C. & P. S. 397 (1965). In England, for
example, 1957 legislation limited capital punishment 10 murder,
treason, piracy with violence, dockyards arson and some military
offenses. The Murder (Abolition of Death Penalty) Act 1965
eliminated the penalty for murder on a five-year trial basis. 2 Pub.
Gen. Acts, c. 71, p. 1577 (Nov. 8, 1965). This abolition was made
permanent in 1969. See 793 Par!. Deb., H. C. (5th ser.) 1294-
1298 (1969); 306 Par!. Deb., H. L. (5th ser.) 1317-1322 (1969).
Canada has also undertaken limited 'hbolition on a five-year experimental
basis. Stats. of Canada 1967-1968, 16 & 17 Eliz. 2, c. 15,
p. 145.
FURMAN v. GEORGIA 405
238 BLACKMUN, .J ., dissenting
debate at the level where the controversy is focused.
The case agninst capital punishment is not the product
of legal dialectic, but rests primarily on factual claims,
the truth of which cannot be tested by conventional judicial
processes. The five opinions in support of the
judgments differ in many respects, but they share a willingness
to make s,veeping factual assertions, unsupported
by empirical data, concerning the manner of imposition
and effectiveness of capital punishment in this country.
Legislatures will have the opportunity to make a more
penetrating study of these claims with the familiar and
effective tools available to them as they are not to us.
The highest judicial duty is to recognize the limits on
judicial power and to permit the democratic processes
to deal with matters falling outside of those limits. The
"hydraulic pressure [s]" 32 that Holmes spoke of as being
generated by cases of great import have propelled the
Court to go beyond the limits of judicial power, while
fortunately leaving some room for legislative judgment.
MR. JusTICE BLACKMUN, dissenting.
I join the respective opinions of THE CHIEF .JUSTICE,
MR. JUSTICE PowELL, and ::V.IR. JvsTICE REHNQUIST, and
add only the following, somewhat personal, comments.
1. Cases such as these provide for me an excruciating
agony of the spirit. I yield to no one in the depth of
my distaste, antipathy, and, indeed, abhorrence, for
the death penalty, with all its aspects of physical
distress and fear and of moral judgment exercised by
finite minds. That distaste is buttressed by a belief
that capital punishment serves no useful purpose that
can be demonstrated. For me, it violates childhood's
training and life's experiences, and is not compatible
30 Northern Securities Co. v. United States, 193 U. S. 197, 401
(1904) (dissenting opinion).
406 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 408 U.S.
with the philosophical convictions I have been able
to develop. It is antagonistic to any sense of "reverence
for life." Were I a legislator, I would vote against
the death penalty for the policy reasons argued by counsel
for the respective petitioners and expressed and
adopted in the several opinions filed by the Justices who
vote to reverse these judgments.
2. Having lived for many years in a State that
does not have the death penalty,' that effectively abolished
it in 1911,2 and that carried out its last execution
on February 13, 1906,3 capital punishment had never
been a part of life for me. In my State, it just did
not exist. So far as I can determine, the State, purely
from a statistical deterrence point of view, was neither the
worse nor the better for its abolition, for, as the concurring
opinions observe, the statistics prove little, if
anything. But the State and its citizens accepted the
fact that the death penalty was not to be in the arsenal
of possible punishments for any crime.
3. I, perhaps alone among the present members of
the Court, am on judicial record as to this. As a member
of the United States Court of Appeals, I first struggled
silently with the issue of capital punishment in
Feguer v. United States, 302 F. 2d 214 (CA8 1962),
cert. denied, 371 U. S. 872 (1962). The defendant in
that case may have been one of the last to be executed
under federal auspices. I struggled again with the issue,
and once more refrained from comment, in my writing for
an en bane court in Pope v. United States, 372 F. 2d
710 (CA8 1967), vacated (upon acknowledgment by the
Solicitor General of error revealed by the subsequently
decided United States v. Jackson, 390 U. S. 570 (1968))
and remanded, 392 U. S. 651 (1968). Finally, in Max-
1 Minn. Stat. § 609.10 (1971).
2 Minn. Laws 1911, c. 387.
3 See W. Trenerry, Murder in Minnesota 163- 167 (1962).
FURMAN v. GEORGIA 407
238 BLACKMUN, J., dissenting
well v. Bishop, 398 F. 2d 138 (CA8 1968), vacated and
remanded, sua sponte, by the Court on grounds not raised
below, 398 U. S. 262 (1970), I revealed, solitarily and
not for the panel, my distress and concern. 398 F. 2d,
at 153-154.4 And in Jackson v. Bishop, 404 F. 2d 571
(CA8 1968), I had no hesitancy in writing a panel opinion
that held the use of the strap by trusties upon fellow
Arkansas prisoners to be a violation of the Eighth
Amendment. That, however, was in-prison punishment
imposed by inmate-foremen.
4. The several concurring opinions acknowledge, as
they must, that until today capital punishment was accepted
and assumed as not unconstitutional per se under
the Eighth Amendment or the Fourteenth Amendment.
This is either the flat or the implicit holding of a unanimous
Court in Wilkerson v. Utah, 99 U. S. 130, 134-135,
in 1879; of a unanimous Court in In re Kemmler, 136
U.S. 436,447, in 1890; of the Court in Weems v. United
States, 217 U. S. 349, in 1910; of all those members of the
Court, a majority, who addressed the issue in Louisiana
ex rel. Francis v. Resweber, 329 U. S. 459, 463-464,
471-472, in 1947; of Mr. Chief Justice Warren, speaking
for himself and three others (Justices Black, DouG-
·' "It is obvious, we think, t.hat the efforts on behalf of Maxwell
would not thus be continuing, and his case rea.ppearing in this court
were it not for the fact that it is the death penalty, rather than life
imprisonment, which he received on his rape conviction. This fact
makes the decisional process in a case of this kind particularly
excruciating for the author of this opinion 11 who is not personally
convinced of the rightness of capital punishment and who questions
it as an effective deterrent,. But the advisability of capital punishment
is a policy matter ordinarily to be resolved by the legislature
or through executive clemency and not by the judiciary. We note:',
for what that notice may be wort,h, that the death penalty for rape
remains available under federal statutes. 18 U. S. C. § 2031; 10
U. S. C. § 920 (a)."
The designated footnote observed that my fellow judges did not
join in my comment.
408 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 408 U.S.
LAS, and Whittaker) in Trop v. Dulles, 356 U. S. 86,
99, in 1958; 5 in the denial of certiorari in Rudolph
v. Alabama, 375 U. S. 889, in 1963 ( where, however,
JUSTICES DouGLAS, BRENNAN, and Goldberg would have
heard argument with respect to the imposition of the
ultimate penalty on a convicted rapist who had "neither
taken nor endangered human life"); and of Mr. Justice
Black in McGautha v. California, 402 U. S. 183, 226,
decided only last Term on May 3, 1971.6
Suddenly, however, the course of decision is now the
opposite way, with the Court evidently persuaded that
somehow the passage of time has taken us to a place
of greater maturity and outlook. The argument, plausible
and high-sounding as it may be, is not persuasive,
for it is only one year since McGautha, only eight and
one-half years since Rudolph, 14 years since Trop, and
25 years since Francis, and we have been presented with
nothing that demonstrates a significant movement of
any kind in these brief periods. The Court has just decided
that it is time to strike down the death penalty.
There would have been as much reason to do this
5 "At the outset, let us put to one side the death penalty as an
index of the constitutional limit on punishment. Whatever the
argument,, may be against capital punishment, both on moral grounds
and in terms of accomplishing the purposes of punishment-and they
are forceful-the de.ath penalty has been employed throughout our
history, and, in a day when it is still widely accepted, it cannot
be said to violate the constitutional concept. of cruelty .... "
6 "The Eighth Amendment forbids 'cruel and unusual punishments.'
In my view, these words cannot be read to outlaw capital
punishment because tha.t penalty was in common use and authorized
by law here and in the countries from which our ancestors came
at the time the Amendment was adopted. It is inconceivable to me
that the framers int,ended to end capital punishment by the Amendment..
Although some people have urged that this Court ,should
amend the Constitution by interpretation to keep it abreast of
modem ideas, I ha.vc never believed that lifetime judges in our
system have any such legislative power."
FURMAN v. GEORGIA 409
238 BLACKMUN, J., dissenting
when any of the cited cases were decided. But the
Court refrained from that action on each of those
occasions.
The Court has recognized, and I certainly subscribe
to the proposition, that the Cruel and Unusual Punishments
Clause "may acquire meaning as public opinion
becomes enlightened by a humane justice." Weems
v. United States, 217 u. S., at 378. And Mr. Chief
Justice \Varren, for a plurality of the Court, referred
to "the evolving standards of decency that mark the
progress of a maturing society." Trap v. Dulles, 356
u. S., at 101. Mr. Jefferson expressed the same thought
well.7
7 "Some men look at constitutions with sanctimonious reverence,
and deem them like the ark of the covenant, too sacred to be
touched. They ascribe to the men of the preceding age a wi~dom
more than human, and suppose what they did to be beyond arncndment,.
I knew that age well; I belonged to it, and labored with it.
It deserved well of its country. It was very like the present, but
without the experience of the present; and forty years of experience
in government is worth a century of book-reading; and this
they woYld say themselves, were they to rise from the dead ....
I know ... that laws and institutions must go hand in hand with
the progress of the human mind. As that becomes more developed,
more enlightened, as new discoveries are made, new truths disclosed,
and manners and opinions change with the change of circumstances,
institutions must advance also, and keep pa.re with
the times. We might as well require a man to wear still the coat
which fitted him when a boy, as civilized society to remain ever
under the regimen of their barbarous ancestors. . . . Let us follow
no such examples, nor weakly believe that one generation is not
as capable as another of taking care of itself, and of ordering its
own affairs. Let us, as our sister States have done, avail ourselves
of our reason and experience, to correct the crude essays of our first
and unexperienced, although wise, virtuous, and well-meaning rouncils.
And lastly, let us provide in our Constitution for its re\'ision
at stated periods." Letter to Samuel Kercheval, July 12, 1816,
15 The Writings of Thomas Jefferson 40.-42 (Memorial ed. 1904).
410 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 408U.S.
My problem, however, as I have indicated, is the
suddenness of the Court's perception of progress in the
human attitude since decisions of only a short while ago.
5. To reverse the judgments in these cases is, of course,
the easy choice. It is easier to strike the balance in
favor of life and against death. It is comforting to
relax in the thoughts--perhaps the rationalizationsthat
this is the compassionate decision for a maturing
society; that this is the moral and the "right" thing
to do; that thereby we convince ourselves that we are
moving down the road toward human decency; that
we value life even though that life has taken another
or others or has grievously scarred another or others
and their families; and that we are less barbaric than
we were in 1879, or in 1890, or in 1910, or in 1947, or in
1958, or in 1963, or a year ago, in 1971, when Wilkerson,
Kemmler, Weems, Francis, Trop, Rudolph, and Mc-
Gautha were respectively decided.
This, for me, is good argument, and it makes some
sense. But it is good argument and it makes sense
only in a legislative and executive way and not as a
judicial expedient. As I have said above, were I a
legislator, I would do all I could to sponsor and to vote
for legislation abolishing the death penalty. And were
I the chief executive of a sovereign State, I would be
sorely tempted to exercise executive clemency as Governor
Rockefeller of Arkansas did recent,ly just before
he departed from office. There-on the Legislative
Branch of the State or Federal Government, and secondarily,
on the Executive Branch-is where the authority
and responsibility for this kind of action lies.
The authority should not be taken over by the judiciary
in the modern guise of an Eighth Amendment
issue.
I do not sit on these cases, however, as a legislator,
responsive, at least in part, to the will of constituents.
FURMAN v. GEORGIA 411
238 BLACKMUN, J., dissenting
Our task here, as must so frequently be emphasized and
re-emphasized, is to pass upon the constitutionality of
legislation that has been enacted and that is challenged.
This is the sole task for judges. We should not allow
our personal preferences as to the wisdom of legislative
and congressional action, or our distaste for such action,
to guide our judicial decision in cases such as these.
The temptations to cross that policy line are very great.
In fact, as today's decision reveals, they are almost
irresistible.
6. The Court, in my view, is somewhat propelled
toward its result by the interim decision of the California
Supreme Court, with one justice dissenting, that
the death penalty is violative of that State's constitution.
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d
880 (Feb. 18, 1972). So far as I am aware, that was
the first time the death penalty in its entirety has been
nullified by judicial decision. Cf. Ralph v. Warden, 438
F. 2d 786, 793 (CA.4 1970), cert. denied, post, p. 942.
California's moral problem was a profound one, for more
prisoners were on death row there than in any other State.
California, of course, has the right to construe its constitution
as it will. Its construction, however, is hardly
a precedent for federal adjudication.
7. I trust the Court fully appreciates what it is doing
when it decides these cases the way it does today. Not
only are the capital punishment laws of 39 States and the
District of Columbia struck down, but also all those
provisions of the federal statutory structure that permit
the death penalty apparently are voided. No
longer is capital punishment possible, I suspect, for,
among other crimes, treason, 18 U. S. C. § 2381; or assassination
of the President, the Vice President, or those
who stand elected to those positions, 18 U. S. C. § 1751;
or assassination of a Member or member-elect of Congress,
18 U. S. C. § 351; or espionage, 18 U. S. C. § 794;
412 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 408 U.S.
or rape within the special maritime jurisdiction, 18
U. S. C. § 2031; or aircraft or motor vehicle destruction
where death occurs, 18 U. S. C. § 34; or explosives offenses
where death results, 18 U.S. C.§§ 844 (d) and (f);
or train wrecking, 18 U. S. C. § 1992; or aircraft piracy,
49 U. S. C. § 1472 (i). Also in jeopardy, perhaps, are
the death penalty provisions in various Articles of the
Uniform Code of Military Justice. 10 U. S. C. §§ 885,
890, 894, 899, 901, 904, 906, 913, 918, and 920. All these
seem now to be discarded without a passing reference to
the reasons, or the circumstances, that prompted their enactment,
some very recent, and their retention in the
face of efforts to repeal them.
8. It is of passing interest to note a few voting facts
with respect to recent federal death penalty legislation:
A. The aircraft piracy statute, 49 U. S. C. § 1472 (i),
was enacted September 5, 1961. The Senate vote on
August 10 was 92-0. It was announced that Senators
Chavez, Fulbright, Neuberger, and Symington were absent
but that, if present, all four would vote yea. It was
also announced, on the other side of the aisle, that Senator
Butler was ill and that Senators Beall, Carlson, and
Morton were absent or detained, but that those four, if
present, would vote in the affirmative. These announcements,
therefore, indicate that the true vote was 100---0.
107 Cong. Ree. 15440. The House passed the bill without
recorded vote. 107 Cong. Ree. 16849.
B. The presidential assassination statute, 18 U. S. C.
§ 1751, was approved August 28, 1965, without recorded
votes. 111 Cong. Ree. 14103, 18026, and 20239.
C. The Omnibus Crime Control Act of 1970 was approved
January 2, 1971. Title IV thereof added the
congressional assassination statute that is now 18 U. S. C.
§ 351. The recorded House vote on October 7, 1970, was
341-26, with 63 not voting and 62 of those paired. 116
Cong. Ree. 35363-35364. The Senate vote on October 8
FURMAN v. GEORGIA 413
238 BLACKMUN, J., dissenting
was 59-0, with 41 not voting, but with 21 of these announced
as favoring the bill. 116 Cong. Ree. 35743.
Final votes after conference were not recorded. 116
Cong. Ree. 42150, 42199.
It is impossible for me to believe that the many lawyermembers
of the House and Senate-including, I might
add, outstanding leaders and prominent candidates for
higher office-were callously unaware and insensitive of
constitutional overtones in legislation of this type. The
answer, of course, is that in 1961, in 1965, and in 1970
these elected representatives of the people-far more
conscious of the temper of the times, of the maturing of
society, and of the contemporary demands for man's
dignity, than are we who sit cloistered on this Courttook
it as settled that the death penalty then, as it always
had been, was not in itself unconstitutional. Some of
those Members of Congress, I suspect, will be surprised
at this Court's giant stride today.
9. If the reservations expressed by my Brother STEWART
(which, as I read his opinion, my Brother WHITE shares)
were to command support, namely, that capital punishment
may not be unconstitutional so long as it be mandatorily
imposed, the result, I fear, will be that statutes
struck down today will be re-enacted by state
legislatures to prescribe the death penalty for specified
crimes without any alternative for the imposition of a
lesser punishment in the discretion of the judge or jury,
as the case may be. This approach, it seems to me, encourages
legislation that is regressive and of an antique
mold, for it eliminates the element of mercy in the imposition
of punishment. I thought we had passed beyond
that point in our criminology long ago.
10. It is not without interest, also, to note that, although
the several concurring opinions acknowledge the
heinous and atrocious character of the offenses committed
by the petitioners, none of those opinions makes
414 OCTOBER TERM, 1971
POWELL, J., dissenting 408 U.S.
reference to the misery the petitioners' crimes occasioned
to the victims, to the families of the victims, and to the
communities where the offenses took place. The arguments
for the respective petitioners, particularly the oral
arguments, were similarly and curiously devoid of reference
to the victims. There is risk, of course, in a comment
such as this, for it opens one to the charge of
emphasizing the retributive. But see Williams v. New
York, 337 U. S. 241, 248 (1949). Nevertheless, these
cases are here because off enses to innocent victims were
perpetrated. This fa.et, and the terror that occasioned it,
and the fear that stalks the streets of many of our cities
today perhaps deserve not to be entirely overlooked.
Let us hope that, with the Court's decision, the terror
imposed will be forgotten by those upon whom it was
visited, and that our society will reap the hoped-for benefits
of magnanimity.
Although personally I may rejQice at the Court's result,
I find it difficult to accept or to justify as a matter of history,
of law, or of constitutional pronouncement. I fear
the Court has overstepped. It has sought and has
achieved an end.
MR. JusTICE PowELL, with whom THE CHIEF Jus-
TICE, MR. JusTICE BLACKMUN, and MR. JusTICE REHNQUIST
join, dissenting.
The Court granted certiorari in these cases to consider
whether the death penalty is any longer a permissible
form of punishment. 403 U. S. 952 (1971). It is
the judgment of five Justices that the death penalty, as
customarily prescribed and implemented in this country
today, offends the constitutional prohibition against
cruel and unusual punishments. The reasons for that
judgment are stated in five separate opinions, expressing
as many separate rationales. In my view, none of
these opinions provides a constitutionally adequate foundation
for the Court's decision.
FURMAN v. GEORGIA 415
238 PoWELL, J., dissenting
MR. JUSTICE DouGLAS concludes that capital punishment
is incompatible with notions of "equal protection"
that he finds to be "implicit" in the Eighth
Amendment. Ante, at 257. MR. JUSTICE BRENNAN
bases his judgment primarily on the thesis that the
penalty "does not comport with human dignity." Ante,
at 270. MR . .JUSTICE STEWART concludes that the penalty
is applied in a "wanton" and "freakish" manner.
Ante, at 310. For MR. JUSTICE WHITE it is the "infrequency"
with which the penalty is imposed that renders
its use unconstitutional. Ante, at 313. l\1R. JusTICE
MARSHALL finds that capital punishment is an impermissible
form of punishment because it is "morally unacceptable"
and "excessive." Ante, at 360, 358.
Although the central theme of petitioners' presentations
in these cases is that the imposition of the death
penalty is per se unconstitutional, only two of today's
opinions explicitly conclude that so sweeping a determination
is mandated by the Constitution. Both MR.
JusTICE BRENNAN and MR. JUSTICE MARSHALL call for
the abolition of all existing state and federal capital
punishment statutes. They intimate as well that no
capital statute could be devised in the future that might
comport with the Eighth Amendment. While the practical
consequences of the other three opinions are less
certain, they at least do not purport to render impermissible
every possible statutory scheme for the use of
capital punishment that legislatures might hereafter devise.
1 Insofar as these latter opinions fail, at least ex-
1 MR. JUSTICE DouGLAS holds only that "the Eighth Amendment
[requires] legislatures to write penal laws that. are evenhanded, nonselective,
and nonarbitrary, and [requires] judges to see to it that
general laws are not applied sparsely, selectively, and spottily to
unpopular groups." Ante, at 256. The import of this rationale is
that while all existing hws must fall, it remains theoretically possible
for a State or Congress to devise a statut.e capable of withstanding
a claim of discriminatory application. Mu. JUSTICE STEWART, in
416 OCTOBER TERM, 1971
PowELL, J ., dissenting 408 U.S.
plicitly, to go as far as petitioners' contentions would
carry them, their reservations are attributable to a willingness
to accept only a portion of petitioners' thesis.
For the reasons cogently set out in the CHIEF JusTICE's
dissenting opinion ( ante, at 396--403), and for reasons
stated elsewhere in this opinion, I find my Brothers' lessthan-
absolute-abolition judgments unpersuasive. Because
those judgments are, for me, not dispositive, I shall
focus primarily on the broader ground upon which the
petitions in these cases are premised. The foundations
of my disagreement with that broader thesis are equally
applicable to each of the concurring opinions. I will,
therefore, not endeavor to treat each one separately.
Nor will I attempt to predict what forms of capital
statutes, if any, may avoid condemnation in the future
under the variety of views expressed by the collective
majority today. That difficult task, not performed in
any of the controlling opinions, must go unans,,ered
until other cases presenting these more limited inquiries
arise.
·whatever uncertainties may hereafter surface, several
of the consequences of today's decision are unmistakably
clear. The decision is plainly one of the greatest imaddition
to reserving judgment on at least four presently existing
statutes (ante, at 30i), indicates that statutes making capital punishment
mandatory for any category of crime, or providing some
other means of assuring against "wanton" and ''freakish" application
(ante, at 310), would present a difficult question that he does not
reach today. Mn. JusTICE WHITE, for somewhat different reasons,
appears to come to the conclusion that a mandatory system of
punishment might prove acceptable. Ante, p. 310.
The brief and selective references, in my opinion above and in
this note, to the opinions of other Justices obviously do not adequately
summarize the thoughtful and scholarly Yiews set forth
in their full opinions. I have tried merely to Sf'leet what scC'm to
me to be the respective points of primary emphasis in each of the
majority's opinions.
FURMAN v. GEORGIA 417
238 PoWELL, J., dissenting
portance. The Court's judgment removes the death
sentences previously imposed on some 600 persons awaiting
punishment in state and federal prisons throughout
the country. At least for the present, it also bars the
States and the Federal Government from seeking sentences
of death for defendants awaiting trial on charges
for which capital punishment was heretofore a potential
alternative. The happy event for these countable
few constitutes, however, only the most visible consequence
of this decision. Less measurable, but certainly
of no less significance, is the shattering effect this collection
of views has on the root principles of stare
decisis, federalism, judicial restraint and-most importantly-
separation of powers.
The Court rejects as not decisive the clearest evidence
that the Framers of the Constitution and the authors
of the Fourteenth Amendment believed that those documents
posed no barrier to the death penalty. The Court
also brushes aside an unbroken line of precedent reaffirming
the heretofore virtually unquestioned constitutionality
of capital punishment. Because of the
pervasiveness of the constitutional ruling sought by petitioners,
and accepted in varying degrees by five members
of the Court, today's departure from established precedent
invalidates a staggering number of state and federal
laws. The capital punishment laws of no less than
39 States 2 and the District of Columbia are nullified.
In addition, numerous provisions of the Criminal Code
of the United States and of the Uniform Code of Mili-
2 \Vhile statutes in 40 States permit capital punishment for a
variety of crimes, the constitutionality of a very few mandatory
statutes remains undecided. See concurring opinions by MR. JusTICE
STEWART and MR. JUSTICE WHITE. Since Rhode Island's only
capital statut<.~murder by a life term prisoner- is mandatory, no
la.w in that State is struck down by virtue of the Court's decision
today.
418 OCTOBER TERM, 1971
POWELL, J.1 dissenting 408U.S.
tary Justice also are voided. The Court's judgment
not only wipes out laws presently in existence, but denies
to Congress and to the legislatures of the 50 States the
power to adopt new policies contrary to the policy selected
by the Court. Indeed, it is the view of two of
my Brothers that the people of each State must be
denied the prerogative to amend their constitutions to
provide for capital punishment even selectively for the
most heinous crime.
In terms of the constitutional role of this Court, the
impact of the majority's ruling is all the greater because
the decision encroaches upon an area squarely within
the historic prerogative of the legislative branch- both
state and federal-to protect the citizenry through the
designation of penalties for prohibitable conduct. It is
the very sort of judgment that the legislative branch is
competent to make and for which the judiciary is illequipped.
Throughout our history, Justices of this Court
have emphasized the gravity of decisions invalidating
legislative judgments, admonishing the nine men who
sit on this bench of the duty of self-restraint, especially
when called upon to apply the expansive due process
and cruel and unusual punishment rubrics. I can recall
no case in which, in the name of deciding constitutional
questions, this Court has subordinated national and local
democratic processes to such an extent. Before turning
to address the thesis of petitioners' case against capital
punishment-a thesis that has proved, at least in
large measure, persuasive to a majority of this Court-
I first will set out the principles that counsel against
the Court's sweeping decision.
I
The Constitution itself poses the first obstacle to petitioners'
argument that capital punishment is per se
unconstitutional. The relevant provisions are the Fifth,
FURMAN v. GEORGIA 419
238 PowELL, J., dissenting
Eighth, and Fourteenth Amendments. The first of these
provides in part:
"No person sha11 be held to answer for a capital,
or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury ... ; nor shall
any person be subject for the same offence to be
twice put in jeopardy of life or limb; ... nor be
deprived of life, liberty, or property, without due
process of law ... . "
Thus, the Federal Government's power was restricted
in order to guarantee those charged with crimes that
the prosecution would have only a single opportunity
to seek imposition of the death penalty and that the
death penalty could not be exacted without due process
and a grand jury indictment. The Fourteenth Amendment,
adopted about 77 years after the Bill of Rights,
imposed the due process limitation of the Fifth
Amendment upon the States' power to authorize capital
punishment.
The Eighth Amendment, adopted at the same time
as the Fifth, proscribes "cruel and unusual" punishments.
In an effort to discern its meaning, much has
been written about its history in the opinions of this Court
and elsewhere.3 That history need not be restated here
since, whatever punishments the Framers of the Constitution
may have intended to prohibit under the "cruel and
unusual" language, there cannot be the slightest doubt
that they intended no absolute bar on the Government's
authority to impose the death penalty. McGautha v.
3 :For a thorough presentation of the history of the Cruel and
Unusual Punishment Clause see MR. JUSTICE MARSHALL'S opinion
today, ante, at 316-328. Sec also Weems v. United States, 217 U.S.
349, 389-409 (1910) (White, J., dissenting); O'Neil v. Vermont, 144
U. S. 323, 337 (1892) (Field, J., dissenting); Granucci, "Nor Cruel
and Unusual Punishments Inflicted:" The Original Meaning, 57
Calif. L. Rev. 839 (1969).
420 OCTOBER TERM, 1971
PowELL, .T., dissenting 408 U.S.
California, 402 U. S. 183, 226 ( 1971) (separate opinion of
Black, J.). As much is made clear by the three references
to capital punishment in the Fifth Amendment.
Indeed, the same body that proposed the Eighth Amendment
also provided, in the first Crimes Act of 1790, for
the death penalty for a number of offenses. 1 Stat. 112.
Of course, the specific prohibitions within the Bill
of Rights are limitations on the exercise of power; they
are not an affirmative grant of power to the Government.
I, therefore, do not read the several references
to capital punishment as foreclosing this Court from
considering whether the death penalty in a particular
case offends the Eighth and Fourteenth Amendments.
Nor are "cruel and unusual punishments" and "due
process of law" static concepts whose meaning and scope
were sealed at the time of their writing. They were
designed to be dynamic and to gain meaning through
application to specific circumstances, many of which
were not contemplated by their authors. While flexibility
in the application of these broad concepts is one
of the hallmarks of our system of government, the
Court is not free to read into the Constitution a meaning
that is plainly at variance with its language. Both
the language of the Fifth and Fourteenth Amendments
and the history of the Eighth Amendment confirm beyond
doubt that the death penalty was considered to be
a constitutionally permissible punishment. It is, however,
within the historic process of constitutional adjudication
to challenge the imposition of the death penalty in
some barbaric manner or as a penalty wholly disproportionate
to a particular criminal act. And in making such
a judgment in a case before it, a court may consider
contemporary standards to the extent they are
relevant. While this weighing of a punishment against
the Eighth Amendment standard on a case-by-case basis
is consonant with history and precedent, it is not what
FURMAN v. GEORGIA 421
238 PowELL, J., dissenting
petitioners demand in these cases. They seek nothing
less than the total abolition of capital punishment by
judicial fiat.
II
Petitioners assert that the constitutional issue is an
open one uncontrolled by prior decisions of this Court.
They view the several cases decided under the Eighth
Amendment as assuming the constitutionality of the
death penalty without focusing squarely upon the issue.
I do not believe that the case law can be so easily cast
aside. The Court on numerous occasions has both assumed
and asserted the constitutionality of capital punishment.
In several cases that assumption provided a
necessary foundation for the decision, as the issue was
whether a particular means of carrying out a capital
sentence would be allowed to stand. Each of those decisions
necessarily was premised on the assumption that
some method of exacting the penalty was permissible.
The issue in the first capital case in which the Eighth
Amendment was invoked, Wilkerson v. Utah, 99 U. S.
130 ( 1879), was whether carrying out a death sentence
by public shooting was cruel and unusual punishment.
A unanimous Court upheld that form of execution, noting
first that the punishment itself, as distinguished from
the mode of its infliction, was "not pretended by the
counsel of the prisoner" ( id., at 137) to be cruel and
unusual. The Court went on to hold that:
"Cruel and unusual punishments are forbidden by
the Constitution, but the authorities ... are q c1ite
sufficient to show that the punishment of shooting
as a mode of executing the death penalty for the
crime of murder in the first degree is not included
in that category .... " Id., at 134--135.
Eleven years later, in In re Kemmler, 136 U. S. 436
(1890), the Court again faced a question involving the
422 OCTOBER TERM, 1971
POWELL, J., dissenting 408U.S.
method of carrying out a capital sentence. On review
of a denial of habeas corpus relief by the Supreme
Court of New York, this Court was called on to decide
whether electrocution, which only very recently had
been adopted by the New York Legislature as a means
of execution, was impermissibly cruel and unusual in
violation of the Fourteenth Amendment.4 Chief Justice
Fuller, speaking for the entire Court, ruled in favor of
the State. Electrocution had been selected by the legislature,
after careful investigation, as "the most humane
and practical method known to modern science of carrying
into effect the sentence of death." I d., at 444. The
Court drew a clear line between the penalty itself and
the mode of its execution:
"Punishments are cruel when they involve torture
or a lingering death; but the punishment of death
4 The Court pointed out that the Eighth Amendment applied only
to the Federal Government and not to the States. The Court's power
in relation to state action was limited to protecting privileges and
immunities and to assuring clue process of law, both within the Fourteenth
Amendment. The stand:ud-for purposes of due processwas
held to be whether the State had exerted its authority, "within
the limits of those fundamental principles of liberty and justice which
lie at the base of all our civil and political institutions." 136 U. S.,
at 448. The State of Georgia, in No. 69-5003 and No. 69-5030, has
placed great emphasis on this discussion in In re Kemmler,
136 U. S. 436 ( 1890), and has urged that the instant case,
should all be decided under the more expansive tests of due process
rather than under the Cruel and Unusual Punishments Clause per se.
Irrespective whether the decisions of this Court are viewed as "incorporating"
the Eighth Amendment (see Robinson v. Cali! ornia,
370 U.S. 660 (1962); Powell v. Texa.s, 392 U.S. 514 (1968)) , it
seems clear that the tests for applying these two provisions are
fundamentally identical. Compare Mr. Just.ice Frankfurter's test
in Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 470 (1947)
(concurring opinion), with Mr. Chief .Justice Warren's test in Trop v.
Dulles, a56 U.S. 86, 100-101 (1958).
238
FURMAN v. GEORGIA 423
PowELL, J., dissenting
is not cruel, within the meaning of that word as used
in the Constitution. It implies there something inhuman
and barbarous, something more than the
mere extinguishment of life." Id., at 447.
More than 50 years later, in Louisiana ex rel. Francis v.
Resweber, 329 U. S. 459 (1947), the Court considered a
case in which, due to a mechanical malfunction, Louisiana's
initial attempt to electrocute a convicted murderer
had failed. Petitioner sought to block a second attempt
to execute the sentence on the ground that to do so would
constitute cruel and unusual punishment. In the plurality
opinion written by Mr. Justice Reed, concurred in by
Chief Justice Vinson and Justices Black and Jackson, relief
was denied. Again the Court focused on the manner
of execution, never questioning the propriety of the
death sentence itself.
"The case before us does not call for an examination
into any punishments except that of
death. . . . The traditional humanity of modern
Anglo-American law forbids the infliction of unnecessary
pain in the execution of the death
sentence ....
" . .. The cruelty against which the Constitution
protects a convicted man is cruelty inherent in the
method of punishment, not the necessary suffering
involved in any method employed to extinguish life
humanely." Id., at 463-464.
Mr. Justice Frankfurter, unwilling to dispose of the case
under the Eighth Amendment's specific prohibition, approved
the second execution attempt under the Due
Process Clause. He concluded that "a State may be
found to deny a person due process by treating even one
guilty of crime in a manner that violates standards of
424 OCTOBER TERM, 1971
PowELL, J., dissenting 408 u. s.
decency more or less universally accepted though not
when it treats him by a mode about which opinion is
fairly divided." I d., at 469-470.
The four dissenting Justices, although finding a second
attempt at execution to be impermissibly cruel, expressly
recognized the validity of capital punishment:
"In determining whether the proposed procedure
is unconstitutional, we must measure it against a
lawful electrocution. . . . Electrocution, when instantaneous,
can be inflicted by a state in conformity
with due process of law ....
"The all-important consideration is that the execution
shall be so instantaneous and substantially
painless that the punishment shall be reduced, as
nearly as possible, to no more than that of death
itself." Id., at 474 (original emphasis).
Each of these cases involved the affirmance of a death
sentence where its validity was attacked as violating the
Eighth Amendment. Five opinions were written in these
three cases, expressing the views of 23 Justices. While in
the narrowest sense it is correct to say that in none was
there a frontal attack upon the constitutionality of the
death penalty, each opinion went well beyond an unarticulated
assumption of validity. The power of the
States to impose capital punishment was repeatedly and
expressly recognized.
In addition to these cases in which the constitutionality
of the death penalty was a necessary foundation
for the decision, those who today would have this
Court undertake the absolute abolition of the death
penalty also must reject the opinions of other cases stipulating
or assuming the constitutionality of capital punishment.
Trap v. Dulles, 356 U. S. 86, 99, 100 (1958);
Weems v. United States, 217 U. S. 349, 382, 409 (1910)
FURMAN v. GEORGIA 425
238 PowELL, J., dissenting
(White, J., joined by Holmes, J., dissenting).5 See also
McGautha v. California, 402 U. S., at 226 (separate
opinion of Black, J.); Robinson v. California, 370 U. S.
660, 676 (1962) (DouGLAS, J., concurring).
The plurality opinion in Trap v. Dulles, supra, is of
special interest since it is this opinion, in large measure,
that provides the foundation for the present attack on
the death penalty.6 It is anomalous that the standard
urged by petitioners-"evolving standards of decency
that mark the progress of a maturing society" (356 U.S.,
at 101)-should be derived from an opinion that so unqualifiedly
rejects their arguments. Chief Justice Warren,
joined by Justices Black, DouGLAS, and Whittaker,
stated flatly:
"At the outset, let us put to one side the death
penalty as an index of the constitutional limit on
punishment. Whatever the arguments may be
against capital punishment, both on moral grounds
and in terms of accomplishing the purposes of punishment-
and they are forceful-the death penalty
has been employed throughout our history, and, in
a day when it is still widely accepted, it cannot be
said to violate the constitutional concept of cruelty."
Id., at 99.
The issue in Trap was whether forfeiture of citizenship
was a cruel and unusual punishment when imposed on
5 Mr. Justice White stated:
"Death was a well-known method of punishment prescribed by law,
and it was of course painful, and in that sense was cruel. But
the infliction of this punishment was clearly not prohibited by the
word cruel, although that word manifestly was intended to forbid
the resort to barbarous and unnecessary methods of bodily torture,
in executing even the penalty of death." 217 U. S., at 409.
0 See Part III, infra.
426 OCTOBER TERM, 1971
POWELL, J., dissenting 408 U.S.
a wartime deserter who had gone "over the hill" for
less than a day and had willingly surrendered. In examining
the consequences of the relatively novel punishment
of denationalization ,7 Chief Justice Warren drew
a line between "traditional" and "unusual" penalties:
"While the State has the power to punish, the
[Eighth] Amendment stands to assure that this
power be exercised within the limits of civilized
standards. Fines, imprisonment and even execution
may be imposed depending upon the enormity
of the crime, but any technique outside the bounds
of these traditional penalties is constitutionally
suspect." Id., at 100.
The plurality's repeated disclaimers of any attack on
capital punishment itself must be viewed as more than
offhand dicta since those views were written in direct
response to the strong language in Mr. Justice Frankfurter's
dissent arguing that denationalization could not
be a disproportionate penalty for a concededly capital
offense.6
The most recent precedents of this Court-Witherspoon
v. Illinois, 391 U. S. 510 (1968), and McGautha
v. California, supra-are also premised to a significant
degree on the constitutionality of the death penalty.
While the scope of revimv in both cases was limited
to questions involving the procedures for selecting juries
7 In footnote 32, at 100-101, the plurality opinion indicates that
denationalization "was never explicitly sanctioned by this Government
until 1940 and never tested against the Constitution until this
day."
8 "It seems scarcely arguable that loss of citizenship is within the
Eighth Amendment's prohibition because disproportionate to an
offense that is capital and has been so from the first year of Independence.
. . . Is constitutional dialectic so empty of reason
that it can be seriously urged that loss of citizenship is a fate worse
than death?" Id., at 125.
FURMAN v. GEORGIA 427
238 POWELL, J., dissenting
and regulating their deliberations in capital cases,9
those opinions were "singularly academic exercise [s]" 10
if the members of this Court were prepared at
those times to find in the Constitution the complete
prohibition of the death penalty. This is especially true
of Mr. Justice Harlan's opinion for the Court in Mc-
Gautha, in which, after a full review of the history of
capital punishment, he concluded that "we find it quite
impossible to say that committing to the untrammeled
discretion of the jury the power to pronounce life or
death in capital cases is offensive to anything in the
Constitution." Id., at 207.11
9 398 U. S. 936 (1970); 402 U. S., at 306 (BRENNAN, .r.,
dissenting). While the constitutionality per se of capital punishment
has been assumed almost without question, recently members
of this Court have expressed the desire to consider the constitutionality
of the death penalty with respect to its imposition for
specific ~rirneR. Rudolph v. Alabama, 375 U. S. 889 (1963) (dissent
from the denial of certiorari).
10 Brief for Respondent in Branch v. Texas, No. 69-5031, p. 6.
11 While the implicit assumption in M cGautha v. California, 402
U. S. 183 (1971), of the acceptability of death as a form of
punishment must prove troublesome for those who urge total
abolition, it presents an even more severe problem of stare
decisis for those Justices who treat the Eighth Amendment essentially
as a process prohibition. MR. JUSTICE DouGLAS, while stating
that the Court is "now imprisoned in ... McGautha" (ante,
at 248), concludes that capital punishment is unacceptable precisely
because the procedure governing its imposition is arbitrary and
discriminatory. l\iR. JUSTICE STEWART, taking a not dissimilar tack
on the merits, disposes of McGautha in a footnote reference indicating
that it is not applicable because the question there arose
under the Due Process Clause. Ante, at 310 n. 12. MR. JusTICE
WHITE, who also finds the death penalty intolerable because of the
process for its implementation, makes no attempt to distinguish
McGautha's clear holding. For the reasons expressed in the CHIEF
JusTICE's opinion, McGautha simply cannot. be distinguished. Ante,
at 399-403. These various opinions would, in fact, overrule that
recent precedent.
428 OCTOBER TERM, 1971
PowELL, J., dissenting 408U.S.
Perhaps enough has been said to demonstrate the
unswerving position that this Court has taken in opinions
spanning the last hundred years. On virtually every
occasion that any opinion has touched on the question
of the constitutionality of the death penalty, it has been
~erted affirmatively, or tacitly assumed, that the Constitution
does not prohibit the penalty. Xo Justice of the
Court, until today, has dissented from this consistent
reading of the Constitution. The petitioners in these
cases now before the Court cannot fairly avoid the weight
of this substantial body of precedent merely by asserting
that there is no prior decision precisely in
point. Stare deci.sis, if it is a doctrine founded on
principle, surely applies where there exists a long
line of cases endorsing or necessarily assuming the validity
of a particular matter of constitutional interpretation.
Green v. United States, 356 U. S. 165, 189-193 (1958)
(Frankfurter, J., concurring) . While these oft-repeated
expressions of unchallenged belief in the constitutionality
of capital punishment may not justify a summary
disposition of the constitutional question before us, they
are views expressed and joined in over the years by no
less than 29 Justices of this Court and therefore m erit
the greatest respect.1 2 Those who now resolve to set
those views aside indeed have a heavy burden.
III
Petitioners seek to avoid the authority of the foregoing
cases, and the weight of express recognition in the
Con stitution itself, by reasoning which will not withstand
analysis. The thesis of petitioners' case derives
from several opinions in which members of this Court
12 This number includes all the Justices who partirip:it<>d in Wilkerson
v. Utah, 99 U.S. 130 (1 879) , K emmler, and L(luisiana ex rel .
Francis as well as those who joined in the plurality and dissenting
opinions in Trop a nd the dissenting opinion in W eems.
FURMAN v. GEORGIA 429
238 PowELL, J ., dissenting
have recognized the dynamic nature of the prohibition
against cruel and unusual punishments. The
final meaning of those words was not set in 1791. Rather,
to use the words of Chief Justice Warren speaking
for a plurality of the Court in Trap v. Dulles, 356 U. S.,
at 100-101:
"[T]he words of the Amendment are not precise,
and ... their scope is not static. The Amendment
must draw its meaning from the evolving standards
of decency that mark the progress of a maturing
society."
But this was not new doctrine. It was the approach to
the Eighth Amendment taken by Mr. Justice McKenna
in his opinion for the Court in Weems v. United States,
217 U. S. 349 (1910). Writing for four Justices sitting
as the majority of the six-man Court deciding the case,
he concluded that the clause must be "progressive"; it
is not "fastened to the obsolete but may acquire meaning
as public opinion becomes enlightened by a humane
justice." Id., at 378. The same test was offered by Mr.
Justice Frankfurter in his separate concurrence in Louisiana
ex rel. Francis v. Resweber, 329 U. S., at 469.
While he rejected the notion that the Fourteenth Amendment
made the Eighth Amendment fully applicable to
the States, he nonetheless found as a matter of due
process that the States were prohibited from "treating
even one guilty of crime in a manner that violates standards
of decency more or less universally accepted."
Whether one views the question as one of due process
or of cruel and unusual punishment, as I do for convenience
in this case, the issue is essentially the
same.13 The fundamental premise upon which either
standard is based is that notions of what constitutes
cruel and unusual punishment or due process do evolve.
13 See n. 4, supra.
430 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
Neither the Congress nor any state legislature would
today tolerate pillorying, branding, or cropping or nailing
of the ears~punishments that were in existence
during our colonial era.14 Should, however, any such
punishment be prescribed, the courts would certainly
enjoin its execution. See Jackson v. Bishop, 404 F. 2d
571 (CA8 1968). Likewise, no court would approve
any method of implementation of the death sentence
found to involve unnecessary cruelty in light of presently
available alternatives. Similarly, there may well
be a process of evolving attitude with respect to the
application of the death sentence for particular crimes.15
See McGautha v. California, 402 U.S., at 242 (DouGLAS,
J., dissenting).
But we are not asked to consider the permissibility
of any of the several methods employed in carrying
out the death sentence. Nor are we asked, at least as
part of the core submission in these cases, to determine
whether the penalty might be a grossly excessive
punishment for some specific criminal conduct. Either
inquiry would call for a discriminating evaluation of
particular means, or of the relationship between particular
conduct and its punishment. Petitioners' principal
argument goes far beyond the traditional process
of case-by-case inclusion and exclusion. Instead the
argument insists on an unprecedented constitutional rule
of absolute prohibition of capital punishment for any
crime, regardless of its depravity and impact on society.
In calling for a precipitate and final judicial end to this
form of penalty as offensive to evolving standards of
decency, petitioners would have this Court abandon
the traditional and more refined approach consistently
followed in its prior Eighth Amendment precedents.
What they are saying, in effect, is that the evolutionary
14 See, e. g., Ex parte Wilson, 114 U.S. 417, 427-428 (1885).
15 See Part VII, infra.
FURMAN v. GEORGIA 431
238 POWELL, J., dissenting
process has come suddenly to an end; that the ultimate
wisdom as to the appropriateness of capital punishment
under all circumstances, and for all future generations,
has somehow been revealed.
The prior opinions of this Court point with great
clarity to reasons why those of us who sit on this Court
at a particular time should act with restraint before
assuming, contrary to a century of precedent, that we
now know the answer for all time to come. First, where
as here, the language of the applicable provision provides
great leeway and where the underlying social policies
are felt to be of vital importance, the temptation
to read personal preference into the Constitution is understandably
great. It is too easy to propound our subjective
standards of wise policy under the rubric of more
or less universally held standards of decency. See Trop
v. Dulles, 356 U. S., at 103 (Warren, C. J.), 119-120
(Frankfurter, J., dissenting); Louisiana ex rel. Francis v.
Resweber, 329 U. S., at 470-471 (Frankfurter, J., concurring);
Weems v. United States, 217 U. S., at 378--379
(McKenna, J.).
The second consideration dictating judicial self-restraint
arises from a proper recognition of the respective
roles of the legislative and judicial branches. The designation
of punishments for crimes is a matter peculiarly
within the sphere of the state and federal legislative
bodies. See, e. g., In re Kemmler, 136 U. S., at 447;
Trop v. Dulles, 356 U. S., at 103. When asked to encroach
on the legislative prerogative we are well counseled
to proceed with the utmost reticence. The review
of legislative choices, in the performance of our duty
to enforce the Constitution, has been characterized most
appropriately by Mr. Justice Holmes as "the gravest
and most delicate duty that this Court is called on to
perform." Blodgett v. Holden, 275 U. S. 142, 147- 148
(1927) ( separate opinion).
432 OCTOBER TERM, 1971
PowELL, J., dissenting 408U.S.
How much graver is that duty when we are not asked
to pass on the constitutionality of a single penalty under
the facts of a single case but instead are urged to overturn
the legislative judgments of 40 state legislatures as
well as those of Congress. In so doing is the majority
able to claim, as did the Court in Weems, that it appreciates
"to the fullest the wide range of power that the legislature
possesses to adapt its penal laws to conditions as
they may exist and punish the crimes of men according to
their forms and frequency"? 217 U. S., at 379. I think
not. Xo more eloquent statement of the essential separation
of powers limitation on our prerogative can be found
than the admonition of Mr. Justice Frankfurter, dissenting
in Trop. His articulation of the traditional view takes
on added significance where the Court undertakes to
nullify the legislative judgments of the Congress and
four-fifths of the States.
"What is always basic when the power of Congress
to enact legislation is challenged is the appropriate
approach to judicial review of congressional
legislation . . . . When the power of Congress to
pass a statute is challenged, the function of this
Court is to determine whether legislative action
lies clearly outside the constitutional grant of power
to which it has been, or may fairly be, referred. In
making this determination, the Court sits in judgment
on the action of a co-ordinate branch of the
Government while keeping unto itself-as it must
under our constitutional system-the final determination
of its own power to act. . . .
"Rigorous observance of the difference between
limits of power and wise exercise of power-between
questions of authority and questions of
prudence--requires the most alert appreciation of
this decisive but subtle relationship of two concepts
that too easily coalesce. No less does it require a
238
FURMAN v. GEORGIA 433
POWELL, J., dissenting
disciplined will to adhere to the difference. It is
not easy to stand aloof and allow want of wisdom
to prevail, to disregard one's own strongly held
view of what is wise in the conduct of affairs. But
it is not the business of this Court to pronounce
policy. It must observe a fastidious regard for limitations
on its own power, and this precludes the
Court's giving effect to its own notions of what is
wise or politic. That self-restraint is of the essence
in the observance of the judicial oath, for the Constitution
has not authorized the judges to sit in
judgment on the wisdom of what Congress and the
Executive Branch do." 356 U. S., at 119-120.
See also Mr. Justice White's dissenting opinion in Weems
v. United States, 217 U.S., at 382.
IV
Although determining the range of available punishments
for a particular crime is a legislative function,
the very presence of the Cruel and Unusual Punishments
Clause within the Bill of Rights requires, in the
context of a specific case, that courts decide whether
particular acts of the Congress offend that Amendment.
The Due Process Clause of the Fourteenth Amendment
imposes on the judiciary a similar obligation to scrutinize
state legislation. But the proper exercise of that constitutional
obligation in the cases before us today must be
founded on a full recognition of the several considerations
set forth above--the affirmative references to
capital punishment in the Constitution, the prevailing
precedents of this Court, the limitations on the exercise
of our power imposed by tested principles of judicial selfrestraint,
and the duty to avoid encroachment on the
powers conferred upon state and federal legislatures.
In the face of these considerations, only the most con434
OCTOBER TERM, 1971
POWELL, J., dissenting 408 U.S.
elusive of objective demonstrations could warrant this
Court in holding capital punishment per se unconstitutional.
The burden of seeking so sweeping a decision
against such formidable obstacles is almost insuperable.
Viewed from this perspective, as I believe it must be,
the case against the death penalty falls far short.
Petitioners' contentions are premised, as indicated
above, on the long-accepted view that concepts embodied
in the Eighth and Fourteenth Amendments evolve.
They present, with skill and persistence, a list of "objective
indicators" which are said to demonstrate that prevailing
standards of human decency have progressed
to the final point of requiring the Court to hold, for
all cases and for all time, that capital punishment is
unconstitutional.
Briefly summarized, these proffered indicia of contemporary
standards of decency include the following:
(i) a worldwide trend toward the disuse of the death
penalty; 16 (ii) the reflection in the scholarly literature
of a progressive rejection of capital punishment founded
essentially on moral opposition to such treatment; 17
(iii) the decreasing numbers of executions over the last
40 years and especially over the last decade; 18 (iv) the
16 See, e. g., T. Sellin, The Death Penalty, A Report for the Model
Penal Code Project of the Ameriran Law Institute (1959); United
Nations, Department of Economic and Social Affairs, Capital Punishment
(1968); 2 National Commission on Reform of Federal Criminal
Laws, Working Papers, 1351 n. 13 ( 1970).
17 The literature on the moral question is legion. Representative
collections of the strongly held views on both sides may be found in
H. Bedau, The Death Penalty in America (1967 rev. ed.), and in
Royal Commission on Capital Punishment, Minutes of Evidence
(1949-1953).
18 Department of Justice, National Prisoner Statistics No. 46,
Capital Punishment 1930-1970 (Aug. 1971) (191 executions during
the 1960's; no executions since June 2, 1967); President's Commission
on Law Enforcement and Administration of Justice, The Cha!-
FURMAN v. GEORGIA 435
238 PowELL, J ., dissenting
small number of death sentences rendered in relation
to the number of cases in which they might have been imposed;
19 and ( v) the indication of public abhorrence of
lenge of Crime in a Free Society 143 (1967) ("[t]he most salient
characteristic of capital punishment is that it is infrequently
applied").
Petitioners concede, as they must, that little weight can be given
to the lack of executions in recent years. A de facto moratorium
has existed for five years now while cases challenging the procedures
for implementing the capital sentence have been re-examined by this
Court. McGautha v. California, 402 U.S. 183 (1971); Witherspoon
v. Illinois, 391 U. S. 510 (1968). The infrequency of executions
during the years before the moratorium became fully effective may be
attributable in part to decisions of this Court giving expanded scope
to the criminal procedural protections of the Bill of Rights, espel'ially
under the Fourth and Fifth Amendments. E. g., Miranda v. Arizona,
384 U.S. 436 (1966); Mapp v. Ohio, 367 U.S. 643 (1961). Additionally,
decisions of the early 1960's amplifying the scope of the federal
habeas corpus remedy also may help account for a reduction in
the number of executions. E. g., Fay v. Noia, 372 U. S. 391 (1963) ;
Townsend v. Sain, 372 U.S. 293 (1963). The major effect of either
expanded procedural protections or extended collateral remedies may
well have been simply to postpone the date of execution for some
capital offenders, thereby leaving them ultimately in the moratorium
limbo.
19 An exact figure for the number of death sentences imposed by
the sentencing authorities-judge or jury-in the various jurisdictions
is difficult to determine. But the Kational Priwncr Statistics (hereafter
NPS) show the numbers of persons received at the state and
federal prisons under sentence of death. This number, however, does
not account for those who may have been sentenced and retaim·d in
local facilities during the pendency of their appeals. Accepting with
this reservation the NPS figures as a minimum, the most recent
statistics show that at least 1,057 persons were sentenced to death
during the decade of the 1960's. NPS, supra, n. 18, at 9.
No fully reliable statistics are available on the nationwide ratio
of death sentences to cases in which death was a statutorily permissible
punishment. At oral argument, counsel for petitioner in
No. 69-5003 estimated that the ratio is 12 or 13 to one. Tr. of
Oral Arg. in Furman v. Georgia, No. 69-5003, p. 11. Others have
found a higher correlation. See McGee, Capital Punishment as
436 OCTOBER TERM, 1971
PowELL, J., dissenting 408U.S.
the penalty reflected in the circumstance that executions
are no longer public affairs.20 The foregoing is an incomplete
summary but it touches the major bases of
petitioners' presentation. Although they are not appropriate
for consideration as objective evidence, petitioners
strongly urge two additional propositions. They contend,
first, that the penalty survives public condemnation
only through the infrequency, arbitrariness, and
discriminatory nature of its application, and, second,
that there no longer exists any legitimate justification
for the utilization of the ultimate penalty. These contentions,
which have proved persuasive to several of
the Justices constituting the majority, deserve separate
consideration and will be considered in the ensuing sections.
Before turning to those arguments, I first address
the argument based on "objective" factors.
Any attempt to discern contemporary standards of
decency through the review of objective factors must
take into account several overriding considerations which
petitioners choose to discount or ignore. In a democracy
Seen by a Correctional Administrator, 28 Fed. Prob., No. 2, pp. 11,
12 (1964) (one out of every five, or 20%, of persons convicted of
murder received the death penalty in California); Bedau, Death
Sentences in New Jersey 1907-1960, 19 Rutgers L. Rev. 1 (1964)
(between 1916 and 1955, 157 out of 652 persons charged with murder
received the death sentence in New Jersey-about 20%; between
1956 and 1960, 13 out of 61 received the death sentence-also about
20%); H. Kalven & H. Ziesel, The American Jury 435-436 (1966)
(21 of 111 murder cases resulted in death sentences during three
representative years during the mid-1950's); see also Koeninger,
Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132
(1969).
20 See, e. g., People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880,
cert. denied, 406 U. S. 958 (1972); Goldberg &: Dershowitz, Declaring
the Death Penalty Unconstitutional, 83 Harv. L. Rev.
1773, 1783 (1970). But see F. Frankfurter, Of 13,w and Ylen 97-98
(1956) (reprint of testimony before the Royal Commission on Capital
Punishment) .
FURMAN v. GEORGIA 437
238 PowELL, J ., dissenting
the first indicator of the public's attitude must always
be found in the legislative judgments of the people's
chosen representatives. MR. JusTICE MARSHALL'S opinion
today catalogues the salient statistics. Forty States,2'
the District of Columbia, and the Federal Government
still authorize the death penalty for a wide variety of
crimes. That number has remained relatively static since
the end of World War I. Ante, at 339-341. That does
not mean, however, that capital punishment has become
a forgotten issue in the legislative arena. As recently
as January, 1971, Congress approved the death penalty
for congressional assassination. 18 U. S. C. § 351. In
1965 Congress added the death penalty for presidential
and vice presidential assassinations. 18 U. S. C. § 1751.
Additionally, the aircraft piracy statute passed in 1961
also carries the death penalty. 49 U. S. C. § 1472 (i).
MR. JusTrCE BLACKMUN's dissenting opinion catalogues
the impressive ease with which each of these statutes
was approved. Ante, at 412-413. On the converse side,
a bill proposing the abolition of capital punishment for
all federal crimes was introduced in 1967 but failed to
reach the Senate floor. 22
At the state level, New York, among other States, has
recently undertaken reconsideration of its capital crimes.
A law passed in 1965 restricted the use of capital punishment
to the crimes of murder of a police officer and
murder by a person serving a sentence of life imprisonment.
N. Y. Penal Code § 125.30 (1967).
I pause here to state that I am at a loss to under-
21 Nine States have abolished capital punishment without resort
to the court.s. See H. Bedau, supra, n. 17, at 39. California has
been the only State to abolish capital punishment judicially. People
v. Anderson, supra.
22 Hearings on S. 1760 before the Subcommittee on Criminal
Laws and Procedures of the Senate Committee on the Judiciary,
90th Cong., 2d Sess. ( 1968).
438 OCTOBER TERM, 1971
POWELL, J., dissenting 408U.S.
stand how those urging this Court to pursue a course
of absolute abolition as a matter of constitutional judgment
can draw any support from the New York experience.
As is also the case with respect to recent
legislative activity in Canada 23 and Great Britain,24
New York's decision to restrict the availability of the
death penalty is a product of refined and discriminating
legislative judgment, reflecting, not the total rejection
of capital punishment as inherently cruel, but
a desire to limit it to those circumstances in which legislative
judgment deems retention to be in the public
interest. No such legislative flexibility is permitted by
the contrary course petitioners urge this Court to follow.2 5
In addition to the New York experience, a number of
other States have undertaken reconsideration of capital
punishment in recent years. In four States the penalty
has been put to a vote of the people through public
referenda~a means likely to supply objective evidence of
community standards. In Oregon a referendum seeking
abolition of capital punishment failed in 1958 but was
subsequently approved in 1964.26 Two years later the
penalty was approved in Colorado by a wide margin.21
28 Canada has recently undertaken a five-year experiment-similar
to that conducted in England-abolishing the death penalty for most
crimes. Stats. of Canada 1967-1968, 16 & 17 Eliz. 2, c. 15, p. 145.
However, capital punishment is still prescribed for some crimes, including
murder of a police officer or corrections official, treason, and
piracy.
24 Great Britain, after many years of controversy over the death
penalty, undertook a five-year experiment in abolition in 1965.
Murder (Abolition of Death Penalty) Act 1965, 2 Pub. Gen. Acts,
c. 71, p. 1577. Although abolition for murder became final in 1969,
the penalty was retained for several crimes, including treason, piracy,
and dockyards arson.
25 See n. 62, infra.
26 See Bedau, supra, n. 17, at 233.
27 Ibid. (approximately 65% of the voters approved the death
penalty).
FURMAN v. GEORGIA 439
238 PowELL, J., dissenting
In Massachusetts in 1968, in an advisory referendum,
the voters there likewise recommended retention of the
penalty. In 1970, approximately 64% of the voters in
Illinois approved the penalty.28 In addition, the National
Commission on Reform of Federal Criminal Laws
reports that legislative committees in Massachusetts,
Pennsylvania, and Maryland recommended abolition,
while committees in New Jersey and Florida recommended
retention. 29 The legislative views of other
States have been summarized by Professor Hugo Bedau
in his compilation of sources on capital punishment entitled
The Death Penalty in America:
"What our legislative representatives think in the
two score states which still have the death penalty
may be inferred from the fate of the bills to repeal
or modify the death penalty filed during recent
years in the legislatures of more than half of these
states. In about a dozen instances, the bills emerged
from committee for a vote. But in none except
Delaware did they become law. In those states
where these bills were brought to the floor of the
legislatures, the vote in most instances wasn't even
close." so
This recent history of activity with respect to legislation
concerning the death penalty abundantly refutes the
abolitionist position.
The second and even more direct source of information
28 See Bedau, The Death Penalty in America, 35 Fed. Prob., No.
2, pp. 32, 34 (1971).
29 National Commission, supra, n. 16, at 1365.
~
0 Bedau, supra, n. 17, at 232. See, e. g. , State v. Davis,
158 Conn. 341, 356-359, 260 A. 2d 587, 595--596 (1969), in which
the Connecticut Supreme Court pointed ont that the state legislature
had considered the question of abolition during the 1961, 1963,
1965, 1967, and 1969 sessions and had "specifically declined to abolish
the death penalty" every time.
440 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
reflecting the public's attitude toward capital punishment
is the jury. In Witherspoon v. Illinois, 391 U. S.
510 (1968), MR. JUSTICE STEWART, joined by JUSTICES
BRENNAN and MARSHALL, characterized the jury's historic
function in the sentencing process in the following
terms:
"[T]he jury is given broad discretion to decide
whether or not death is 'the proper penalty' in a
given case, and a juror's general views about capital
punishment play an inevitable role in any such
decision.
"A man who opposes the death penalty, no less
than one who favors it, can make the discretionary
judgment entrusted to him by the State and can
thus obey the oath he takes as a juror. . . . Guided
by neither rule nor standard, ... a jury that must
choose between life imprisonment and capital punishment
can do little more-and must do nothing
less-than express the conscience of the community
on the ultimate question of life or death."
"[O] ne of the most important functions any jury
can perform in making such a selection is to maintain
a link between contemporary community values
and the penal system-a link without which the determination
of punishment could hardly reflect 'the
evolving standards of decency that mark the progress
of a maturing society.' Trap v. Dulles, ... " 31
Any attempt to discern, therefore, where the prevailing
standards of decency lie must take careful account of
31 391 U.S., at 519 and n. 15. See also McGautha v. California, 402
U.S., at 201-202; Williams v. New York, 337 U.S. 241,253 (1949)
(Murphy, J., dissenting) ("[i]n ou1· criminal courts the jury sits as
the representative of the community"); W. Douglas, We the Judges
389 (1956); Holmes, Law in Science and Science in Law, 12 H.uv.
L. Rev. 443, 460 (1899).
FURMAN v. GEORGIA 441
238 PowELL, J ., dissenting
the jury's response to the question of capital punishment.
During the 1960's juries returned in excess of a
thousand death sentences, a rate of approximately two
per week. Whether it is true that death sentences were
returned in less than 10% of the cases as petitioners
estimate or whether some higher percentage is more
accurate,32 these totals simply do not support petitioners'
assertion at oral argument that "the death penalty is
virtually unanimously repudiated and condemned by
the conscience of contemporary society." 33 It is also
worthy of note that the annual rate of death sentences
has remained relatively constant over the last 10 years
and that the figure for 1970---127 sentences-is the
highest annual total since 1961.34 It is true that the
sentencing rate might be expected to rise, rather than
remain constant, when the number of violent crimes increases
as it has in this country.35 And it may be conceded
that the constancy in these statistics indicates
the unwillingness of juries to demand the ultimate penalty
in many cases where it might be imposed. But
these considerations fall short of indicating that juries
are imposing the death penalty with such rarity as to
justify this Court in reading into this circumstance a
public rejection of capital punishment.36
32 See n. 19, supra.
33 Tr. of Oral Arg. in Aikens v. California, No. 68-5027, p. 21.
Although the petition for certiorari in this case was dismissed after
oral argument, Aikens v. California, 406 U.S. 813 (1972), the same
counsel argued both this case and Furman. He stated at the outset
that his argument was equally applicable to each case.
34 National Prisoner Statistics, supra, n. 18.
35 FBI, Uniform Crime Reports-1970, pp. 7-14 (1971).
36 Public opinion polls, while of little probative relevance, cor•
roborate substantially the conclusion derived from examining legislative
activity and jury sentencing-opinion on capital punishment
is "fairly divided." Louisiana ex rel. Francis v. Resweber, 329 U. S.,
at 470 (Frankfurter, J., concurring). See, e. g., Witherspoon v.
442 OCTOBER TERM, 1971
PowELL, J., dissenting 408U.S.
One must conclude, contrary to petitioners' submission,
that the indicators most likely to reflect the public's
view-legislative bodies, state referenda and the
juries which have the actual responsibility-do not support
the contention that evolving standards of decency
require total abolition of capital punishment.37 Indeed,
Illinois, 391 U.S., at 520 n. 16 (1966 poll finding 42% in favor of t he
death penalty and 47% opposed); Goldberg & Dershowitz, supra, n.
20, at 1781 n. 39 (1969 poll i,hows 51% in favor of retention-the
same percentage as in 1960); H. Bedau, The Death Penalty in
America 231-241 (1967 rev. ed.); Bedau, The Death Penalty in
America, 35 Fed. Prob., No. 2, pp. 32, 34--35 (1971).
37 If, as petitioners suggest, the judicial branch itself reflects the
prevailing standards of human decency in our society, it may be
relevant to note the conclusion reached by state courts in recent
years on the question of the acceptability of capital punishment.
In the last five years alone, since the de facto "moratorium" on
executions began (see n. 18, supra), the appellate courts of 26 States
have passed on the constitutionality of the death penalty under the
Eighth Amendment and under similar provisions of most state constitutions.
Every court, except the California Supreme Court,
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert. denied,
406 U. S. 958 (1972), has found the penalty to l)(' constitutional.
Those States, and the year of the most recent decision on the
issue, are: Alabama (1971); Arizona (1969); Colorado (1967);
Connecticut (1969); Delaware (1971); Florida (1969); Georgia
(1971); Illinois (1970); Kansas (1968); Kentucky (1971); Louisiana
(1971); Maryland (1971); Missouri (1971); Nebraska (1967);
Nevada (1970); New Jersey (1971); New Mexico (1969); North
Carolina (1972); Ohio (1971); Oklahoma. (1971); South Carolina
(1970); Texas (1971); Utah (1969); Virginia (1971); Washington
( 1971). While the majority of these state court opinions do not give
the issue more than summary exposition, many have considered the
question at some length, and, indeed, some have considered the
issue under the "evolving standards" rubric. See, e. g., State v.
Davis, 158 Conn. 341, 356-359, 260 A. 2d 587, 595-596 (1969);
State v. Crook, 253 La. 961, 967-970, 221 So. 2d 473, 475-476
(1969); Bartholomey v. State, 260 Md. 504, 273 A. 2d 164 (1971);
State v. Alvarez, 182 Neb. 358, 366-367, 154 N. W. 2d 746, 751-
752 (1967); State "· Pace, 80 N . .M. 364, 371-372, 456 P. 2d 197,
FURMAN v. GEORGIA 443
238 PowELL, J., dissenting
the weight of the evidence indicates that the public
generally has not accepted either the morality or the
social merit of the views so passionately advocated by
the articulate spokesmen for abolition. But however
one may assess the amorphous ebb and flow of public
opinion generally on this volatile issue, this type of inquiry
lies at the periphery-not the core-of the judicial
process in constitutional cases. The assessment of popular
opinion is essentially a legislative, not a judicial,
function.
V
Petitioners seek to salvage their thesis by arguing
that the infrequency and discriminatory nature of the
actual resort to the ultimate penalty tend to diffuse
public opposition. We are told that the penalty is
imposed exclusively on uninfluential minorities-"the
poor and powerless, personally ugly and socially unacceptable."
38 It is urged that this pattern of application
assures that large segments of the public will be
either uninformed or unconcerned and will have no reason
to measure the punishment against prevailing moral
standards.
Implicitly, this argument concedes the unsoundness of
petitioners' contention, examined above under Part IV,
that objective evidence shows a present and widespread
community rejection of the death penalty. It is now said,
204--205 ( 1969). Every federal court that has passed on the issue
has ruled that the death penalty is not per se unconstitutional.
See, e. g., Ralph v. Warden, 438 F. 2d 786, 793 (CA.4 1970);
Jackson v. Dickson, 325 F. 2d 573, 575 (CA.9 1963), cert. denied,
377 U.S. 957 (1964).
38 Brief for Petitioner in No. 68-5027, p. 51. Although the Aikens
case is no long-er before us (see n. 33, supra), the petitioners in
Furman and Jackson have incorporated petitioner's brief in Aikens
by reference. See Brief for Petitioner in No. 69-5003, pp. 11-12;
Brief for Petitioner in No. 69-5030, pp. 11-12.
444 OCTOBER TERM, 1971
PowELL, J., dissenting 408U.S.
in effect, not that capital punishment presently offends
our citizenry, but that the public wouid be offended if
the penalty were enforced in a nondiscriminatory manner
against a significant percentage of those charged with
capital crimes, and if the public were thereby made
aware of the moral issues surrounding capital punishment.
Rather than merely registering the objective indicators
on a judicial balance, we are asked ultimately to
rest a far-reaching constitutional determination on a prediction
regarding the subjective judgments of the mass
of our people under hypothetical assumptions that may
or may not be realistic.
Apart from the impermissibility of basing a constitutional
judgment of this magnitude on such speculative
assumptions, the argument suffers from other defects.
If, as petitioners urge, we are to engage in speculation,
it is not at all certain that the public would experience
deep-felt revulsion if the States were to execute as
many sentenced capital offenders this year as they executed
in the mid-1930's.39 It seems more likely that
public reaction, rather than being characterized by undifferentiated
rejection, would depend upon the facts
and circumstances surrounding each particular case.
Members of this Court know, from the petitions and
appeals that come before us regularly, that brutish
and revolting murders continue to occur with disquieting
frequency. Indeed, murders are so commonplace
39 In 1935 available statistics indicate that 184 convicted murderers
were executed. That is the highest annual total for any year
since statistics have become available. NPS, supra, n. 18. The
year 1935 is chosen by petitioners in stating their thesis:
"If, in fact , 184 murderers were to be executed in this year 1971, we
submit it is palpable that the public conscience of the Nation would
be profoundly and fundamentally revolted, and that the death
penalty for murder would be abolished forthwith as the atavistic
horror that it is." Brief for Petitioner in No. 68-5027, p. 26 (see
n. 38, supra).
FURMAN v. GEORGIA 445
238 PowELL, J., dissenting
in our society that only the most sensational receive
significant and sustained publicity. It could hardly be
suggested that in any of these highly publicized murder
cases-the several senseless assassinations or the too
numerous shocking multiple murders that have stained
this country's recent history-the public has exhibited
any signs of "revulsion" at the thought of executing the
convicted murderers. The public outcry, as we all know,
has been quitB to the contrary. Furthermore, there is
little reason to suspect that the public's reaction would
differ significantly in response to other less publicized
murders. It is certainly arguable that many such murders,
because of their senselessness or barbarousness, would
evoke a public demand for the death penalty rather
than a public rejection of that alternative. Nor is there
any rational basis for arguing that the public reaction
to any of these crimes would be muted if the murderer
were "rich and powerful." The demand for the ultimate
sanction might well be greater, as a wealthy killer
is hardly a sympathetic figure. While there might
be specific cases in which capital punishment would be
regarded as excessive and shocking to the conscience of
the community, it can hardly be argued that the public's
dissatisfaction with the penalty in particular cases
would translate into a demand for absolute abolition.
In pursuing the foregoing speculation, I do not suggest
that it is relevant to the appropriate disposition
of these cases. The purpose of the digression is to indicate
that judicial decisions cannot be founded on such
speculations and assumptions, however appealing they
may seem.
But the discrimination argument does not rest alone
on a projection of the assumed effect on public opinion
of more frequent executions. Much also is made of
the undeniable fact that the death penalty has a greater
impact on the lower economic strata of society, which
446 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
include a relatively higher percentage of persons of
minority racial and ethnic group backgrounds. The argument
drawn from this fact is two-pronged. In part
it is merely an extension of the speculative approach
pursued by petitioners, i. e., that public revulsion is
suppressed in callous apathy because the penalty does
not affect persons from the white middle class which constitutes
the majority in this country. This aspect, however,
adds little to the infrequency rationalization for
public apathy which I have found unpersuasive.
As MR. JUSTICE MARSHALL'S opinion today demonstrates,
the argument does have a more troubling a.<;-
pect. It is his contention that if the average citizen
were aware of the disproportionate burden of capital
punishment borne by the "poor, the ignorant, and the
underprivileged," he would find the penalty "shocking
to his conscience and sense of justice" and would not
stand for its further use. Ante, at 365- 366, 369. This
argument, like the apathy rationale, calls for further speculation
on the part of the Court. It also illuminates the
quicksands upon which we are asked to base this decision.
Indeed, the two contentions seem to require contradictory
assumptions regarding the public's moral attitude toward
capital punishment. The apathy argument is predicated
on the assumption that the penalty is used against the less
influential elements of society, that the public is fully
aware of this, and that it tolerates use of capital punishment
only because of a callous indifference to the offenders
who are sentenced. MR. JUSTICE MARSHALL's
argument, on the other hand, rests on the contrary assumption
that the public does not know against whom the
penalty is enforced and that if the public were educated
to this fact it would find the punishment intolerable.
Ante, at 369. Neither assumption can claim to be an
entirely accurate portrayal of public attitude; for some
acceptance of capital punishment might be a conseFURMAN
v. GEORGIA 447
238 PowELL, J., dissenting
quence of hardened apathy based on the knowledge
of infrequent and uneven application, while for others
acceptance may grow only out of ignorance. More significantly,
however, neither supposition acknowledges
what, for me, is a more basic flaw.
Certainly the claim is justified that this criminal
sanction falls more heavily on the relatively impoverished
and underprivileged elements of society. The
"have-nots" in every society always have been subject
to greater pressure to commit crimes and to
fewer constraints than their more affluent fellow citizens.
This is, indeed, a tragic byproduct of social
and economic deprivation, but it is not an argument
of constitutional proportions under the Eighth or Fourteenth
Amendment. The same discriminatory impact
argument could be made with equal force and logic with
respect to those sentenced to prison terms. The Due
Process Clause admits of no distinction between the
deprivation of "life" and the deprivation of "liberty."
If discriminatory impact renders capital punishment
cruel and unusual, it likewise renders invalid most of
the prescribed penalties for crimes of violence. The
root causes of the higher incidence of criminal penalties
on "minorities and the poor" will not be cured by abolishing
the system of penalties. Nor, indeed, could any
society have a viable system of criminal justice if sanctions
were abolished or ameliorated because most of
those who commit crimes happen to be underprivileged.
The basic problem results not from the penalties imposed
for criminal conduct but from social and economic factors
that have plagued humanity since the beginning of recorded
history, frustrating all efforts to create in any
country at any time the perfect society in which there are
no "poor," no "minorities" and no "underprivileged." 40
40 Not all murders, and certainly not all crimes, are committed by
persons classifiable as "underprivileged." Many crimes of violenc.e
448 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
The causes underlying this problem are unrelated to the
constitutional issue before the C-0urt.
Finally, yet another theory for abolishing the death
penalty-reflected in varying degrees in each of the
concurring opinions today-is predicated on the discriminatory
impact argument. Quite apart from measuring
the public's acceptance or rejection of the death penalty
under the "standards of decency" rationale, MR. JusTICE
DouGLAS finds the punishment cruel and unusual because
it is "arbitrarily" invoked. He finds that "the basic
theme of equal protection is implicit" in the Eighth
Amendment, and that the Amendment is violated when
jury sentencing may be characterized as arbitrary or discriminatory.
Ante, at 249. While MR. JusTICE STEWART
does not purport to rely on notions of equal protection,
he also rests primarily on what he views to be
a history of arbitrariness. Ante, at 309-310.41 Whatever
may be the facts with respect to jury sentencing,
this argument calls for a reconsideration of the "standards"
aspects of the Court's decision in McGautha v.
California, 402 U. S. 183 (1971). Although that is the
unmistakable thrust of these opinions today, I see no
reason to reassess the standards question considered so
carefully in Mr. Justice Harlan's opinion for the Court
are committed by professional criminals who willingly choo._s.e to
prey upon society as an easy and remunerative wa.y of life. Moreover,
the terms "underprivileged," the "poor" and the "powerless"
are relative and inexact, often conveying subjective connotations
which vary widely depending upon the viewpoint and purpose of
the user.
41 Similarly, llfo. JusTICE WHITE exhibits concern for a lack of
any "meaningful basis for distinguishing the few cases in which
[the death penalty] is imposed from the many cases in which it is
not." Ante, at 313. !\fa. JUSTICE BRENNAN and l\,fR. JusTrcE
MARSHALL treat the arbitrariness question in the same manner that
it is handled by petitioners-as an element of the approach calling
for total abolition.
FURMAN v. GEORGIA 449
238 PowELL, J., dissenting
last Term. Having so recently reaffirmed our historic
dedication to entrusting the sentencing function to the
jury's "untrammeled discretion" ( id., at 207), it is difficult
to see how the Court can now hold the entire process
constitutionally defective under the Eighth Amendment.
For all of these reasons I find little merit in the various
discrimination arguments, at least in the several lights
in which they have been cast in these cases.
Although not presented by any of the petitioners
today, a different argument, premised on the Equal
Protection Clause, might well be made. If a -Xegro defendant,
for instance, could demonstrate that members
of his race were being singled out for more severe punishment
than others charged with the same offense, a
constitutional violation might be established. This was
the contention made in Maxwell v. Bishop, 398 F. 2d
138 (CAS 1968), vacated and remanded on other grounds,
398 U. S. 262 ( 1970), in which the Eighth Circuit was
asked to issue a writ of habeas corpus setting aside a
death sentence imposed on a Negro defendant convicted
of rape. In that case substantial statistical evidence
was introduced tending to show a pronounced disproportion
in the number of Negroes receiving death sentences
for rape in parts of Arkansas and elsewhere in
the South. That evidence was not excluded but was
found to be insufficient to show discrimination in sentencing
in Maxwell's trial. MR. JusTICE BLACKMUN,
then sitting on the Court of Appeals for the Eighth Circuit.
concluded:
"The petitioner's argument is an interesting one
and we are not disposed to say that it could not
have some validity and weight in certain situations.
Like the trial court, however ... we feel
that the argument does not have validity and pertinent
application to Maxv,ell's case.
450 OCTOBER TERM, 1971
PowELL, J., dissenting 408U.S.
''We are not yet ready to condemn and upset
the result reached in every case of a Negro rape
defendant in the State of Arkansas on the basis of
broad theories of social and statistical injustice ....
"We do not say that there is no ground for suspicion
that the death penalty for rape may have been
discriminatorily applied over the decades in that
large area of states whose statutes provide for it.
There are recognizable indicators of this. But ...
improper state practice of the past does not automatically
invalidate a procedure of the present .... "
Id., at 146-148.
I agree that discriminatory application of the death
penalty in the past, admittedly indefensible, is no justification
for holding today that capital punishment is
invalid in all cases in which sentences were handed out
to members of the class discriminated against. But
Maxwell does point the way to a means of raising the
equal protection challenge that is more consonant with
precedent and the Constitution's mandates than the several
courses pursued by today's concurring opinions.
A final comment on the racial discrimination problem
seems appropriate. The possibility of racial bias in
the trial and sentencing process has diminished in recent
years. The segregation of our society in decades
past, which contributed substantially to the severity of
punishment for interracial crimes, is now no longer prevalent
in this country. Likewise, the day is past when
juries do not represent the minority group elements of
the community. The assurance of fair trials for all citizens
is greater today than at any previous time in our
history. Because standards of criminal justice have
"evolved" in a manner favorable to the accused, discriminatory
imposition of capital punishment is far less
likely today than in the past.
FURMAN v. GEORGIA 451
238 PowELL, J., dissenting
VI
Petitioner in Branch v. Texas, No. 69-5031, and to
a lesser extent the petitioners in the other cases before
us today, urge that capital punishment is cruel and
unusual because it no longer serves any rational legislative
interests. Before turning to consider whether any
of the traditional aims of punishment justify the death
penalty, I should make clear the context in which I
approach this aspect of the cases.
First, I find no support-in the language of the Constitution,
in its history, or in the cases arising under
it---for the view that this Court may invalidate a category
of penalties because we deem less severe penalties
adequate to serve the ends of penology. While the cases
affirm our authority to prohibit punishments that are
cruelly inhumane (e. g., Wilkerson v. Utah, 99 U. S.,
at 135-136; In re Kemmler, 136 U. S., at 447), and
punishments that are cruelly excessive in that they
are disproportionate to particular crimes (see Part VII,
infra), the precedents of this Court afford no basis for
striking down a particular form of punishment because
we may be persuaded that means less stringent would
be equally efficacious.
Secondly, if we were free to question the justifications
for the use of capital punishment, a heavy burden would
rest on those who attack the legislatures' judgments to
prove the lack of rational justifications. This Court
has long held that legislative decisions in this area, which
lie within the special competency of that branch, are
entitled to a presumption of validity. See, e. g., Trap
v. Dulles, 356 U. S., at 103; Louisiana ex rel. Francis v.
Resweber, 329 U. S., at 470 (Frankfurter, J., concurring);
Weems v. United States, 217 U. S., at 378--379; In re
Kemmler, 136 U. S., at 449.
452 OCTOBER TERM, 1971
POWELL, J., dissenting 408 U.S.
I come now to consider, subject to the reservations
above expressed, the two justifications most often cited
for the retention of capital punishment. The concept
of retribution-though popular for centuries-is now
criticized as unworthy of a civilized people. Yet this
Court has acknowledged the existence of a retributive
element in criminal sanctions and has never heretofore
found it impermissible. In Williams v. New York, 337
e. S. 241 (1949), Mr. Justice Black stated that,
"Retribution is no longer the dominant objective
of the criminal law. Reformation and rehabilitation
of offenders have become important goals of criminal
jurisprudence." Id., at 248.
It is clear, however, that the Court did not reject retribution
altogether. The record in that case indicated
that one of the reasons why the trial judge imposed
the death penalty was his sense of revulsion at the
"shocking details of the crime." I d., at 244. Although
his motivation was clearly retributive, the Court upheld
the trial judge's sentence.42 Similarly, MR. JrsTICE
MARSHALL noted in his plurality opinion in Powell v.
Texas, 392 U. S. 514, 530 ( 1968), that this Court "has
never held that anything in the Constitution requires
that penal sanctions be designed solely to achieve therapeutic
or rehabilitative effects." •3
42 In Morissette v. United States, 342 U. S. 246 (1952), Mr. Justice
.Jackson spoke of the "tardy and unfinished substitution of deterrence
and reformation in place of retaliation and vengeance as
the motivation for public prosecution." Id., at 251. He also
noted that the penalties for invasions of the rights of property are
high as a consequence of the "public demand for retribution." Id.,
at 260.
43 See also Massiah v. United States, 377 U. S. 201, 207 (1964)
(WHITE, J., dissenting) (noting the existence of a "profound dispute
about whether we should puniRh, deter, rehabilitate or (Ure");
Robinson v. Cai,ifornia, 370 U. S., at 674 (DouGLAS, J., concurring);
FURMAN v. GEORGIA 453
238 PowELL, .T., dissenting
While retribution alone may seem an unworthy justification
in a moral sense, its utility in a system of criminal
justice requiring public support has long been recognized.
Lord Justice Denning, now Master of the Rolls of the
Court of Appeal in England, testified on this subject
before the British Royal Commission on Capital
Punishment:
"Many are inclined to test the efficacy of punishment
solely by its value as a deterrent: but this is
too narrow a view. Punishment is the way in which
society expresses its denunciation of wrong doing:
and, in order to maintain respect for law, it is essential
that the punishment inflicted for grave crimes
should adequately reflect the revulsion felt by the
great majority of citizens for them. It is a mistake
to consider the objects of punishment as being deterrent
or reformative or preventive and nothing else.
If this were so, we should not send to prison a
man who was guilty of motor manslaughter, but
only disqualify him from driving; but would public
opinion be content with this? The truth is that
some crimes are so outrageous that society insists
on adequate punishment, because the wrong-doer
deserves it, irrespective of whether it is a deterrent
or not."••
The view expressed by Lord Denning was cited approvingly
in the Royal Commission's Report, recognizing "a
Loui..'liana ex rel. Francis v. Resweber, 329 U. S., at 470-471 (Mr.
Justice Frankfurter's admonition that the Court is not empowered
to act simply because of a "feeling of revulsion against a State's
insistence on its pound of flesh"); United States v. Lovett, 328 U.S.
303, 324 (1946) (Frankfurter, J., concurring) ("[p]unishrr:ent presupposes
an offense, not necessarily an act previously declared criminal,
but an act for which retribution i8 rxacted").
44 Royal Commission on Capital Punishment, Minutes of Evidence
207 ( 1949-1953).
454 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
strong and widespread demand for retribution." .. 5 MR.
JusTICE STEWART makes much the same point in his
opinion today when he concludes that expression of man's
retributive instincts in the sentencing process "serves
an important purpose in promoting the stability of a
society governed by law." Ante, at 308. The view,
moreover, is not without respectable support in the
jurisprudential literature in this country,46 despite a
substantial body of opinion to the contrary.47 And
it is conceded on all sides that, not infrequently, cases
arise that are so shocking or offensive that the public
demands the ultimate penalty for the transgressor.
Deterrence is a more appealing justification, although
opinions again differ widely. Indeed, the deterrence issue
lies at the heart of much of the debate between the
abolitionists and retentionists.48 Statistical studies,
based primarily on trends in States that have abolished
the penalty, tend to support the view that the death
penalty has not been proved to be a superior deterrent.40
Some dispute the validity of this conclusion,5° pointing
45 Report of Royal Commission on Capital Punishment, 1949-
1953, Crud. 8932, ,r 53, p. 18.
46 M. Cohen, Reason and Law 50 (1950); H. Packer, The Limits
of the Criminal Sanction 11-12 (1968); Hart, The Aims of the
Criminal Law, 23 Law & Contemp. Prob. 401 (1958).
47 The authorities are collected in Comment, The Death Pennlty
Cases, 56 Calif. L. Rev. 1268, 1297-1301 (1968). The competing
contentions are summnrized in the Working Papers of the National
Commission on Reform of Federal Criminal Laws, supra, n. 16, at
1358-1359. See also the persuasive treatment of this issue by Dr.
Karl Menninger in The Crime of Punishment 190-218 ( 1966).
48 See, e. g., H. Bedau, The Death Penalty in America 260 (1967
rev. ed.); National Commission, supra, n. 16, at 1352.
• 9 See Sellin, supra, n. 16, at 19-52.
50 The countervailing considerations, tending to undercut the force
of Professor Sellin's statistical studies, a.re collected in National
Commission, supra, n. 16, at 1354; Bedau, supra, n. 4.8, at 265-266;
Hart, Murder and the Principles of Punishment: England and the
United States, 52 Nw. U. L. Rev. 433, 455-460 (1957).
FURMAN v. GEORGIA 455
238 PowELL, J., dissenting
out that the studies do not show that the death penalty
has no deterrent effect on any categories of crimes.
On the basis of the literature and studies currently
available, I find myself in agreement with the conclusions
drawn by the Royal Commission following its
exhaustive study of this issue:
"The general conclusion which we reach, after careful
review of all the evidence we have been able
to obtain as to the deterrent effect of capital punishment,
may be stated as follows. Prima facie
the penalty of death is likely to have a stronger
effect as a deterrent to normal human beings than
any other form of punishment, and there is some
evidence (though no convincing statistical evidence)
that this is in fact so. But this effect does not operate
universally or uniformly, and there are many
offenders on whom it is limited and may often be
negligible. It is accordingly important to view this
question in a just perspective and not base a penal
policy in relation to murder on exaggerated estimates
of the uniquely deterrent force of the death
penalty." 51
Only recently this Court was called on to consider the
deterrence argument in relation to punishment by fines
, for public drunkenness. Powell v. Texas, 392 U. S. 514
(1968). The Court was unwil1ing to strike down the
Texas statute on grounds that it lacked a rational foundation.
What MR. JusTICE MARSHALL said there would
seem to have equal applicability in this case:
"The long-standing and still raging debate over
the validity of the deterrence justification for penal
sanctions has not reached any sufficiently clear conclusions
to permit it to be said that such sanctions
are ineffective in any particular context or for any
51 Report of the Royal Commission, supra, n. 45, 168, at 24.
456 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
particular group of people who are able to appreciate
the consequences of their acts .... " / d., at 531.
As I noted at the outset of this section, legislative
judgments as to the efficacy of particular punishments
are presumptively rational and may not be struck down
under the Eighth Amendment because this Court may
think that some alternative sanction would be more appropriate.
Even if such judgments were within the judicial
prerogative, petitioners have failed to show that
there exist no justifications for the legislative enactments
challenged in these cases.52 While the evidence and arguments
advanced by petitioners might have proved profoundly
persuasive if addressed to a legislative body,
they do not approach the showing traditionally required
before a court declares that the legislature has acted
irrationally.
VII
In two of the cases before us today juries imposed
sentences of death after convictions for rape.53 In these
cases we are urged to hold that even if capital punishment
is permissible for some crimes, it is a cruel and
unusual punishment for this crime. Petitioners in these
cases rely on the Court's opinions holding that the Eighth
Amendment, in addition to prohibiting punishments
5 2 It is worthy of note that the heart of the argument herc--that
there are no legitimate justifications-was impliedly repudiated
last Term by both the majority and dissenting opinions in McGautha
v. CaJ,ifornia, 402 U. S. 183 (1971). The argument in that case
centered on the proposition that due process requires that the standards
governing the jury's exercise of its sentencing function be
elucidated. As :'.\1R. JUSTICE BRENNAN'S dissent made clear, whatever
standards might be thought to exist arise out of the list of justifications
for the death penalty-retribution, deterrence, etc. Id.,
at 284. If no such standards exist, the controversy last Term was
a. hollow one indeed.
53 Jackson v. Georgia, No. 69-5030; Branch v. Texas, No. 69-5031.
FURMAN v. GEORGIA 457
238 PowELL, J., dissenting
deemed barbarous and inhumane, also condemns punishments
that are greatly disproportionate to the crime
charged. This reading of the Amendment was first expressed
by Mr. Justice Field in his dissenting opinion in
. O'l\'eil v. Vermont, 144 U. S. 323, 337 (1892) , a case in
·which a defendant charged with a large number of violations
of Vermont's liquor laws received a fine in excess of
$6,600, or a 54-year jail sentence if the fine was not
paid. The majority refused to consider the question
on the ground that the Eighth Amendment did not
apply to the States. The dissent, after carefully examining
the history of that Amendment and the Fourteenth,
concluded that its prohibition was binding on Vermont
and that it was directed against "all punishments which
by their excessive length or severity are greatly disproportioned
to the offences charged." Id., at 339-340.54
The Court, in Weems v. United States, 217 U. S. 349
(1910), adopted Mr. Justice Field's view. The defendant,
in Weems, charged with falsifying Government documents,
had been sentenced to serve 15 years in
cadena temporal, a punishment which included carrying
chains at the wrists and ankles and the perpetual loss
of the right to vote and hold office. Finding the sentence
grossly excessive in length and condition of imprisonment,
the Court struck it down. This notion
of disproportionality-that particular sentences may be
cruelly excessive for particular crimes-has been cited
with approval in more recent decisions of this Court.
See Robinson v. California, 370 U. S., at 667; Trop v.
Dulles, 356 U. S., at 100; see also Howard v. Fleming,
191 U. S. 126, 135-136 (1903).
These cases, while providing a rationale for gauging the
constitutionality of capital sentences imposed for rape,
54 Mr. Justice Harlan, joined by Mr. Justice Brewer, dissented
separately but agreed that the State had inflicted a cruel and unusual
punishment. Id., at 371.
458 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
also indicate the existence of necessary limitations on the
judicial function. The use of limiting terms in the various
expressions of this test found in the opinions-grossly
excessive, greatly disproportionate-emphasizes that the
Court's power to strike down punishments as excessive
must be exercised with the greatest circumspection.
As I have noted earlier, nothing in the history of the
Cruel and Unusual Punishments Clause indicates that it
may properly be utilized by the judiciary to strike down
punishments-authorized by legislatures and imposed by
juries--------in any but the extraordinary case. This Court is
not empowered to sit as a court of sentencing review, implementing
the personal views of its members on the
proper role of penology. To do so is to usurp a function
committed to the Legislative Branch and beyond the
power and competency of this Court.
Operating within these narrow limits, I find it quite
impossible to declare the death sentence grossly excessive
for all rapes. Rape is widely recognized as among
the most serious of violent crimes, as witnessed by the
very fact that it is punishable by death in 16 States
and by life imprisonment in most other States.5 5 The
several reasons why rape stands so high on the list of
serious crimes are well known: It is widely viewed
as the most atrocious of intrusions upon the privacy
and dignity of the victim; never is the crime committed
accidentally; rarely can it be said to be unpremeditated;
55 In addition to the States in which rape is a capital offcnse,
statutes in 28 States prescribe life imprisonment as a permissible
punishment for at least some category of rape. Also indicative of
the seriousness with which the crime of rape is viewed, is the fact
that in nine of the 10 States that have abolished death as a punishment
for any crime, the maximum term of years for rape is the
same as for first-degree murder. Statistical studies Jrn ve shown
that the average prison term served by rapists is longer than for
any category of offense other than murder. J. MacDonald, Rape--
Offenders and Their Victims 298 (1971).
FURMAN v. GEORGIA 459
238 PowELL, J., dissenting
often the victim suffers serious physical mJury; the
psychological impact can often be as great as the physical
consequences; in a real sense, the threat of both types
of injury is always present.5° For these reasons, and
for the reasons arguing against abolition of the death
penalty altogether, the excessiveness rationale provides
no basis for rejection of the penalty for rape in all cases.
The argument that the death penalty for rape lacks
rational justification because less severe punishments
might be viewed as accomplishing the proper goals of
penology is as inapposite here as it was in considering
per se abolition. See Part VI supra. The state of
knowledge with respect to the deterrent value of the
sentence for this crime is inconclusive.57 Moreover, what
has been said about the concept of retribution applies
with equal force where the crime is rape. There are
many cases in which the sordid, heinous nature of a
particular crime, demeaning. humiliating, and often
physically or psychologically traumatic, will call for
public condemnation. In a period in our country's history
when the frequency of this crime is increasing alarmingly,
58 it is indeed a grave event for the Court to take
from the States whatever deterrent and retributive weight
the death penalty retains.
Other less sweeping applications of the disproportionality
concept have been suggested. Recently the
Fourth Circuit struck down a death sentence in Ralph
v. Warden, 438 F. 2d 786 (1970), holding that the
death penalty was an appropriate punishment for rape
56 Id., at 63-64; Packer, Making the Punishment Fit the Crime,
77 Harv. L. Rev. 1071, 1077 (1964).
57 See MacDonald, supra, n. 55, at 314; Chambliss, Types of
Deviance and the Effectiveness of Legal Sanctions, 1967 Wis. L.
Rev. 703.
58 FBI, Uniform Crime Reports-1970, p. 14 (1971) (during the
1960's the incidence of rape rose 121 % ) .
460 OCTOBER TERM, 1971
PowELL, J ., dissenting 408 U.S.
only where life is "endangered." Chief Judge Haynsworth,
who joined in the panel's opinion, wrote separately
in denying the State of Maryland's petition for rehearing
in order to make clear the basis for his joinder. He stated
that, for him, the appropriate test was not whether life
was endangered, but whether the victim in fact suffered
"grievous physical or psychological harm." I d., at 794.
See Rudolph v. Alabama, 375 U.S. 889 (1963) (dissent
from the denial of certiorari).
It seems to me that both of these tests depart from
established principles and also raise serious practical
problems. How are those cases in which the victim's
life is endangered to be distinguished from those in
which no danger is found? The threat of serious injury
is implicit in the definition of rape; the victim is either
forced into submission by physical violence or by the
threat of violence. Certainly that test would provide
little comfort for either of the rape defendants in the
cases presently before us. Both criminal acts were accomplished
only after a violent struggle. Petitioner Jackson
held a scissors blade against his victim' s neck. Petitioner
Branch had less difficulty subduing his 65-year-old
victim. Both assailants threatened to kill their victims.
See MR. JusTICE Dou GLAS' opinion, ante, at 252-
253. The alternate test, limiting the penalty to cases in
which the victim suffers physical or emotional harm,
might present even greater problems of application.
While most physical effects may be seen and objectively
measured, the emotional impact may be impossible to
gauge at any particular point in time. The extent and
duration of psychological trauma may not be known or
ascertainable prior to the date of trial.
While I reject each of these attempts to establish
specific categories of cases in which the death penalty
may be deemed excessive, I view them as groping
FURMAN v. GEORGIA 461
238 PowELL, J ., dissenting
toward what is for me the appropriate application of
the Eighth Amendment. While in my view the disproportionality
test may not be used either to strike down the
death penalty for rape altogether or to install the Court
as a tribunal for sentencing review, that test may find its
application in the peculiar circumstances of specific
cases. Its utilization should be limited to the rare case
in which the death penalty is rendered for a crime technically
falling within the legislatively defined class but factually
falling outside the likely legislative intent in
creating the category. Specific rape cases (and specific
homicides as well) can be imagined in which the conduct
of the accused would render the ultimate penalty a
grossly excessive punishment. Although this case-bycase
approach may seem painfully slow and inadequate
to those who wish the Court to assume an activist legislative
role in reforming criminal punishments, it is the
approach dictated both by our prior opinions and by
a due recognition of the limitations of judicial power.
This approach, rather than the majority's more pervasive
and less refined judgment, marks for me the appropriate
course under the Eighth Amendment.
VIII
I now return to the overriding question in these cases:
whether this Court, acting in conformity with the
Constitution, can justify its judgment to abolish capital
punishment as heretofore known in this country. It
is important to keep in focus the enormity of the step
undertaken by the Court today. Not only does it invalidate
hundreds of state and federal laws, it deprives
those jurisdictions of the power to legislate with respect
to capital punishment in the future, except in a manner
consistent with the cloudily outlined views of those Justices
who do not purport to undertake total abolition.
462 OCTOBER TERM, 1971
PowELL, J., dissenting 408U. S.
Nothing short of an amendment to the United States
Constitution can reverse the Court's judgments. Meanwhile,
all flexibility is foreclosed. The normal democratic
process, as well as the opportunities for the several
States to respond to the will of their people expressed
through ballot referenda (as in Massachusetts, Illinois,
and Colorado),59 is now shut off.
The sobering disadvantage of constitutional adjudication
of this magnitude is the universality and permanence
of the judgment. The enduring merit of
legislative action is its responsiveness to the democratic
process, and to revision and change: mistaken judgments
may be corrected and refinements perfected. In England
60 and Canada 61 critical choices were made after
studies canvassing all competing views, and in those
countries revisions may be made in light of experience.62
As recently as 1967 a presidential commission did
consider, as part of an overall study of crime in this
country, whether the death penalty should be abolished.
59 See text accompanying nn. 27 & 28, supra.
• 0 Seen. 24, supra.
61 See n. 23, supra.
62 Recent legislative activity in New York State serves to underline
the preferability of legislative action over constitutional adjudication.
New York abolished the death penalty for murder in 1965,
leaving only a few crimes for which the penalty is still available.
See text accompanying n. 25, supra. On April 27, 1972. a bill that
would have restored the death penalty was considered by the State
Assembly. After several hours of heated debate, the bill was narrowly
defeated by a vote of 65 to 59. N. Y. Times, Apr. 28, 1972,
p. 1, col. 1. After seven years of disuse of the death penalty the
representatives of the people in that State had not come finally to
rest on the question of capital punishment. Because the 1965
decision had been the product of the popular will it could have been
undone by an exercise of the same democratic process. No such
flexibility is permitted when abolition, even though not absolute,
flows from consti1.utional adjudication.
FURMAN v. GEORGIA 463
238 PowELL, J., dissenting
The commission's unanimous recommendation was as
follows:
"The question whether capital punishment is an
appropriate sanction is a policy decision to be made
by each State. Where it is retained, the types of
offenses for which it is available should be strictly
limited, and the law should be enforced in an evenhanded
and nondiscriminatory manner, with procedures
for review of death sentences that are fair
and expeditious. When a State finds that it cannot
administer the penalty in such a manner, or that
the death penalty is being imposed but not carried
into effect, the penalty should be abandoned." 63
The thrust of the Commission's recommendation, as presently
relevant, is that this question "is a policy·-decision
to be made by each State." There is no hint that this
decision could or should be made by the judicial branch.
The National Commission on Reform of Federal Criminal
Laws also considered the capital punishment issue.
The introductory commentary of its final report states
that "a sharp division [ existed] within the Commission
on the subject of capital punishment," although a
63 Presidmt's Commission on Law Enforcement and Administration
of Justice, The Challenge of Crime in a Free Society 143 (1967)
(chaired by Nicholas Katzenbach, then Attorney General of the
United States). The text of the Report stated, among other things,
that the abolition of the death penalty "is being widely debated in
the States"; that it is "impossible to say with certainty whether
capital punishment significantly reduces the incidence of heinous
crimes"; that "[w]hatever views one may have on the efficacy of the
death penalty as a deterrent, it clearly has an undesirable impart on
the administration of criminal justice"; and that "[a]ll members of
the Commission agree that the present situation in the administration
of the death pemlty in many States is intolerable." Ibid. As
a member of this Presidential Commission I subscribed then, and do
now, to the recommendations and views above quoted.
464 OCTOBER TERM, 1971
PowELL, J., dissenting 408U.S.
majority favored its abolition.64 Again, consideration
of the question was directed to the propriety of retention
or abolition as a legislative matter. There was no suggestion
that the difference of opinion existing among
commission members, and generally across the country,
could or should be resolved in one stroke by a decision of
this Court.65 Similar activity was, before today, evident
at the state level with re-evaluation having been undertaken
by special legislative committees in some States
and by public ballot in others.00
With deference and respect for the views of the Justices
who differ, it seems to me that all these studies-both in
this country and elsewhere-suggest that, as a matter of
policy and precedent, this is a classic case for the exercise
of our oft-announced allegiance to judicial restraint. I
know of no case in which greater gravity and delicacy
have attached to the duty that this Court is called on to
perform whenever legislation-state or federal-is challenged
on constitutional grounds.67 It seems to me that
the sweeping judicial action undertaken today reflects a
64 Final Report of the National Commission on Reform of Federal
Criminal Laws 310 (1971).
65 The American Law Institute, after years of study, decided not
to take an official position on the question of capital pnni.~hmP.nt.,
although the Advisory Committee favored abolition by a vote of 18-2.
The Council was more evenly divided but all were in agreement that
many States would undoubtedly retain the punishment and that,
therefore, the Institute's efforts should be directed toward providing
standards for its implementation. ALI, Model Penal Code 65
(Tent. draft No. 9, 1959).
66 Sec text accompanying nn. 26 through 30, supra.
01 Blodgett v. Holden, 275 U. S. 142, 148 (1927) (separate opinion
of Holmes, .J.). See also Trop v. Dulles, 356 U. S., at 128 (Frankfurter,
J., dissenting):
"The awesome power of this Court to invalidate ... legislation, because
in practice it is bounded only by our own pmdence in discerning
the limits of the Court's constitutional function, must be exercised
with the utmost restraint."
FURMAN v. GEORGIA 465
238 REHNQUIST, J., dissenting
basic lack of faith and confidence in the democratic process.
Many may regret, as I do, the failure of some legislative
bodies to address the capital punishment issue with
greater frankness or effectiveness. Many might decry
their failure either to abolish the penalty entirely or
selectively, or to establish standards for its enforcement.
But impatience with the slowness, and even
the unresponsiveness, of legislatures is no justification
for judicial intrusion upon their historic powers. Rarely
has there been a more appropriate opportunity for this
Court to heed the philosophy of Mr. Justice Oliver Wendell
Holmes. As Mr. Justice Frankfurter reminded the
Court in Trop:
"[TJhe whole of [Mr. Justice Holmes'] work during
his thirty years of service on this Court should be
a constant reminder that the power to invalidate
legislation must not be exercised as if, either in
constitutional theory or in the art of government,
it stood as the sole bulwark against unwisdom or
excesses of the moment." 356 U. S., at 128.
MR. JUSTICE REHNQUIST, with whom THE CHIEF
Jus-rrcE, MR. JusTICE BLACKMUN, and MR. JUSTICE
PowELL join, dissenting.
The Court's judgments today strike down a penalty
that our Nation's legislators have thought necessary since
our country was founded. My Brothers DouGLAS, BRENNAN,
and MARSHALL would at one fell swoop invalidate
laws enacted by Congress and 40 of the 50 state legislatures,
and would consign to the limbo of unconstitutionality
under a single rubric penalties for offenses as varied
and unique as murder, piracy, mutiny, highjacking, and
desertion in the face of the enemy. My Brothers STEWART
and WHITE, asserting reliance on a more limited
rationale-------the reluctance of judges and juries actually
to impose the death penalty in the majority of capital
466 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408 U.S.
cases-join in the judgments in these cases. Whatever
its precise rationale, today's holding necessarily brings
into sharp relief the fundamental question of the role of
judicial review in a democratic society. How can government
by the elected representatives of the people co-exist
with the power of the federal judiciary, whose members
are constitutionally insulated from responsiveness to the
popular will, to declare invalid laws duly enacted by the
popular branches of government?
The answer, of course, is found in Hamilton's Federalist
Paper No. 78 and in Chief Justice Marshall's classic opinion
in Marbury v. Madison, 1 Cranch 137 (1803). An
oft-told story since then, it bears summarization once
more. Sovereignty resides ultimately in the people as a
whole and, by adopti~g through their States a written
Constitution for the Nation and subsequently adding
amendments to that instrument, they have both granted
certain powers to the National Government, and denied
other powers to the National and the State Governments.
Courts are exercising no more than the judicial function
conferred upon them by Art. III of the Constitution
when they assess, in a case before them, whether or not
a particular legislative enactment is within the authority
granted by the Constitution to the enacting body, and
whether it runs afoul of some limitation placed by the
Constitution on the authority of that body. For the
theory is that the people themselves have spoken in the
Constitution, and therefore its commands are superior to
the commands of the legislature, which is merely an agent
of the people.
The Founding Fathers thus wisely sought to have the
best of both worlds, the undeniable benefits of both democratic
self-government and individual rights protected
against possible excesses of that form of government.
The courts in cases properly before them have been
entrusted under the Constitution with the last word, short
of constitutional amendment, as to whether a law passed
FURMAN v. GEORGIA 467
238 REHNQUIST, J., dissenting
by the legislature conforms to the Constitution But
just because courts in general, and this Court in particular,
do have the last word, the admonition of Mr.
Justice Stone dissenting in United States v. Butler must
be constantly borne in mind:
"[W]hile unconstitutional exercise of power by the
executive and legislative branches of the government
is subject to judicial restraint, the only check
upon our own exercise of power is our own sense of
self-restraint." 297 U. S. 1, 78-79 (1936).
Rigorous attention to the limits of this Court's authority
is likewise enjoined because of the natural desire
that beguiles judges along with other human beings into
imposing their own views of goodness, truth, and justice
upon others. Judges differ only in that they have the
power, if not the authority, to enforce their desires. This
is doubtless why nearly two centuries of judicial precedent
from this Court counsel the sparing use of that
power. The most expansive reading of the leading constitutional
cases does not remotely suggest that this
Court has been granted a roving commission, either by
the Founding Fathers or by the framers of the Fourteenth
Amendment, to strike down laws that are based
upon notions of policy or morality suddenly found unacceptable
by a majority of this Court. The Framers of
the Constitution ,vould doubtless have agreed with the
great English political philosopher John Stuart Mill when
he observed:
"The disposition of mankind, whether as rulers or
as fellow-citizens, to impose their own opinions and
inclinations as a rule of conduct on others, is so
energetically supported by some of the best and by
some of the worst feelings incident to human nature,
that it is hardly ever kept under restraint by anything
but want of power." On Liberty 28 (1885).
468 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408 U.S.
A separate reason for deference to the legislative judgment
is the consequence of human error on the part of
the judiciary with respect to the constitutional issue before
it. Human error there is bound to be, judges being
men and women, and men and women being what they
are. But an error in mistakenly sustaining the constitutionality
of a particular enactment, while wrongfully
depriving the individual of a right secured to him by
the Constitution, nonetheless does so by simply letting
stand a duly enacted law of a democratically chosen
legislative body. The error resulting from a mistaken upholding
of an individual's constitutional claim against the
validity of a legislative enactment is a good deal more
serious. For the result in such a case is not to leave
standing a law duly enacted by a representative assembly,
but to impose upon the Nation the judicial fiat of a majority
of a court of judges whose connection with the
popular will is remote at best.
The task of judging constitutional cases imposed by
Art. III cannot for this reason be avoided, but it must
surely be approached with the deepest humility and genuine
deference to legislative judgment. Today's decision
to invalidate capital punishment is, I respectfully submit,
significantly lacking in those attributes. For the reasons
well stated in the opinions of THE CHIEF JusTICE, MR.
JusTICE BLACKMUN, and MR. JUSTICE POWELL, I conclude
that this decision holding unconstitutional capital punishment
is not an act of judgment, but rather an act of
will. It completely ignores the strictures of Mr. Justice
Holmes, writing more than 40 years ago in Baldwin v.
Missouri:
"I have not yet adequately expressed the more than
anxiety that I feel at the ever increasing scope given
to the Fourteenth Amendment in cutting down
what I believe to be the constitutional rights of the
States. As the decisions now stand, I see hardly
238
FURMAN v. GEORGIA 469
REHNQUIST, J ., dissenting
any limit but the sky to the invalidating of those
rights if they happen to strike a majority of this
Court as for any reason undesirable. I cannot believe
that the Amendment was intended to give us
carte blanche to embody our economic or moral
beliefs in its prohibitions. Yet I can think of no
narrower reason that seems to me to justify the
present and the earlier decisions to which I have
referred. Of course the words 'due process of law,'
if taken in their literal meaning, have no application
to this case; and while it is too late to deny that they
have been given a much more extended and artificial
signification, still we ought to remember the
great caution shown by the Constitution in limiting
the power of the States, and should be slow to construe
the clause in the Fourteenth Amendment as
committing to the Court, with no guide but the
Court's own discretion, the validity of whatever laws
the States may pass." 281 U. S. 586, 595 ( 1930)
( dissenting opinion).
More than 20 years ago, Justice Jackson made a similar
observation with respect to this Court's restriction of
the States in the enforcement of their own criminal laws:
"The use of the due process clause to disable the
States in protection of society from crime is quite
as dangerous and delicate a use of federal judicial
power as to use it to disable them from social or
economic experimentation." Ashcraft v. Tennessee,
322 U. S. 143, 174 (1944) (dissenting opinion).
If there can be said to be one dominant theme in the
Constitution, perhaps more fully articulated in the
Federalist Papers than in the instrument itself, it is the
notion of checks and balances. The Framers were well
aware of the natural desire of office holders as well as
others to seek to expand the scope and authority of their
470 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408 U.S.
particular office at the expense of others. They sought
to provide against success in such efforts by erecting adequate
checks and balances in the form of grants of authority
to each branch of the government in order to
counteract and prevent usurpation on the part of the
others.
This philosophy of the Framers is best described by
one of the ablest and greatest of their number, James
Madison, in Federalist No. 51:
"In framing a government which is to be administered
by men o-ver men, the great difficulty lies in
this: You must first enable the government to
controul the governed; and in the next place, oblige
it to controul itself."
Madison's observation applies to the Judicial Branch
with at least as much force as to the Legislative and
Executive Branches. While overreaching by the Legislative
and Executive Branches may result in the sacrifice
of individual protections that the Constitution was designed
to secure against action of the State, judicial overreaching
may result in sacrifice of the equally important
right of the people to govern themselves. The Due
Process and Equal Protection Clauses of the Fourteenth
Amendment were "never intended to destroy the States'
power to govern themselves." Black, J., in Oregon v.
Mitchell, 400 U. S. 112, 126 (1970).
The very nature of judicial review, as pointed out by
Justice Stone in his dissent in the Butler case, makes the
courts the least subject to Madisonian check in the event
that they shall, for the best of motives, expand judicial
authority beyond the limits contemplated by the
Framers. It is for this reason that judicial self-restraint
is surely an implied, if not an expressed, condition of the
grant of authority of judicial review. The Court's holding
in these cases has been reached, I believe, in complete
disregard of that implied condition.
MORRISSEY v. BREWER 471
Syllabus
MORRISSEY ET AL. V. BREWER, WARDEN, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 71-5103. Argued April 11, 1972-Decided June 29, 1972
Petitioners in these habeas corpus proceedings claimed that their
paroles were revoked without a hearing and that they were thereby
deprived of due process. The Court of Appea.ls, in affirming the
District Court.'s denial of relief, reasoned that under controlling
authorities parole is only "a correctional device authorizing service
of sentence outside a penitentiary," and concluded that a parolee,
who is still "in custody," is not entitled to a full adversary hearing
such as would be mandated in a criminal proceeding. Held:
1. Though parole revocation does not call for the full panoply of
rights due a defendant in a criminal proceeding, a parolee's liberty
involves significant values within the protection of the Due Proce.ss
Clause of the Fourteenth Amendment, and termination of that
liberty requires an informal hearing to give assurance that the
finding of a parole violation is based on verified facts to support
the revocation. Pp. 480-482.
2. Due process requires a reasonably prompt informal inquiry
conducted by an impartial hearing officer near the place of the
alleged pa.role violation or arrest to determine if there is reasonable
ground to believe that the arrested parolee has violated a
parole condition. The parolee should receive prior notice of the
inquiry, its purpose, and the alleged violations. The parolee may
present relevant, informa.tion and (absent security considerations)
question adverse informants. The hearing officer shall digest the
evidence on probable cause and state the reasons for holding the
parolee for the parole board's decision. Pp. 484-487.
3. At the revocation hearing, which must be conducted reasonably
soon after the parolee's arrest, minimum due proce.ss requirements
are: (a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him; (c) opportunity
to be heard in person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer specifically finds good
cause for not allowing confrontation) ; ( e) a "neutral and detached"
hearing body such as a traditional parole board, members of which
need not be judicial officers or lawyers; and (f) a written statement
472 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
by the factfinders as to the evidence relied on and reasons for
revoking parole. Pp. 487-490.
443 F. 2d 942, reversed and remanded.
BURGER, C. J., delivered the opinion of the Court, in which STEWART,
WHITE, BLACK.MUN, PowELL, and REHNQUIST, JJ., joined.
BRENNAN, J., filed an opinion concurring in the result, in which
11ARSHALL, J., joined, post, p. 490. DOUGLAS, J., filed an opinion
dissenting in part, post, p. 491.
W. Don Brittin, Jr., by appointment of the Court, 404
lJ. S. 1036, argued the cause and filed briefs for petitioners.
Lawrence S. Seuf erer, Assistant Attorney General of
Iowa, argued the cause for respondents. With him on
the brief was Richard C. Turner, Attorney General.
Briefs of amici curiae urging reversal were filed by
William W. Falsgraf and Robert J. Kutak for the American
Bar Association; by Melvin L. Wulf, Herman
Schwartz, and Robert Plotkin for the American Civil
Liberties Union; and by Craig Eldon Pinkus for James H.
Russell.
MR. CHIEF JUSTICE BURGER delivered the opinion
of the Court.
We granted certiorari in this case to det~rmine whether
the Due Proces.s Clause of the Fourteenth Amendment
requires that a State afford an individual some opportunity
to be heard prior to revoking his parole.
Petitioner Morrissey was convicted of false drawing
or uttering of checks in 1967 pursuant to his guilty plea,
and was sentenced to not more than seven years' confinement.
He was paroled from the Iowa State Penitentiary
in June 1968. Seven months later, at the direction
of his parole officer, he was arrested in his home
town as a parole violator and incarcerated in the county
jail. One week later, after review of the parole officer's
written report, the Iowa Board of Parole revoked MorMORRISSEY
v. BREWER 473
471 Opinion of the Court
rissey's parole, and he was returned to the penitentiary
located about 100 miles from his home. Petitioner asserts
he received no hearing prior to revocation of his
parole.
The parole officer's report on which the Board of
Parole acted shows that petitioner's parole was revoked
on the basis of information that he had violated the
conditions of parole by buying a car under an assumed
name and operating it without permission, giving false
statements to police concerning his address and insurance
company after a minor accident, obtaining credit
under an assumed name, and failing to report his
place of residence to his parole officer. The report states
that the officer interviewed Morrissey, and that he could
not explain why he did not contact his parole officer
despite his effort to excuse this on the ground that he
had been sick. Further, the report asserts that Morrissey
admitted buying the car and obtaining credit
under an assumed name, and also admitted being involved
in the accident. The parole officer recommended
that his parole be revoked because of "his continual
violating of his parole rules."
The situation as to petitioner Booher is much the
same. Pursuant to his guilty plea, Booher was convicted
of forgery in 1966 and sentenced to a maximum
term of 10 years. He was paroled November 14, 1968.
In August 1969, at his parole officer's direction, he was
arrested in his home town for a violation of his parole
and confined in the county jail several miles away. On
September 13, 1969, on the basis of a written report
by his parole officer, the Iowa Board of Parole revoked
Booher's parole and Booher was recommitted to the
state penitentiary, located about 250 miles from his
home, to complete service of his sentence. Petitioner
asserts he received no hearing prior to revocation of his
parole.
474 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
The parole officer's report with resp~t to Booher
recommended that his parole be revoked because he had
violated the territorial restrictions of his parole without
consent, had obtained a driver's license under an assumed
name, operated a motor vehicle without permission,
and had violated the employment condition of his parole
by failing to keep himself in gainful employment. The
report stated that the officer had interviewed Booher
and that he had acknowledged to the parole officer that
he had left the specified territorial limits and had operated
the car and had obtained a license under an assumed
name "knowing that it was wrong." The report
further noted that Booher had stated that he had not
found employment because he could not find work that
would pay him what he wanted-he stated he would
not work for $2.25 to $2.75 per hour-and that he had
left the area to get work in another city.
After exhausting state remedies, both petitioners filed
habeas corpus petitions in the United States District
Court for the Southern District of Iowa alleging that
they had been denied due process because their paroles
had been revoked without a hearing. The State responded
by arguing that no hearing was required. The
District OJurt held on the basis of controlling authority
that the State's failure to accord a hearing prior to
parole revocation did not violate due process. On appeal,
the two cases were consolidated.
The Court of Appeals, dividing 4 to 3, held that due
process does not require a hearing. The majority recognized
that the traditional view of parole as a. privilege
rather than a vested right is no longer dispositive
as to whether due process is applicable; however, on a
balancing of the competing interests involved, it concluded
that no hearing is required. The court reasoned
that parole is only "a correct-ional device authorizing
service of sentence outside the penitentiary," 443 F. 2d
MORRISSEY v. BREWER 475
471 Opinion of the Court
942, 947; the parolee is still "in custody." Accordingly,
the Court of Appeals was of the view that prison officials
must have large discretion in making revocation determinations,
and that courts should retain their traditional reluctance
to interfere with disciplinary matters properly
under the control of state prison authorities. The majority
expressed the view that "non-legal, non-adversary considerations"
were often the determinative factors in making
a parole revocation decision. It expressed concern
that if adversary hearings were required for parole revocation,
"with the full panoply of rights accorded in
criminal proceedings," the function of the parole board
as "an administrative body acting in the role of parens
patriae would be aborted," id., at 949, and the board would
be more reluctant to grant parole in the first instance-an
apprehension that would not be without some basis if the
choice were between a full-scale adversary proceeding or
no hearing at all. Additionally, the majority reasoned
that the parolee has no statutory right to remain on
parole. Iowa law provides that a parolee may be returned
to the institution at any time. Our holding in
M empa v. Rhay, 389 U. S. 128 ( 1967), was distinguished
on the ground that it involved deferred sentencing upon
probation revocation, and thus involved a stage of the
criminal proceeding, whereas parole revocation was not a
stage in the criminal proceeding. The Court of Appeals'
decision was consistent with many other decisions on
parole revocations.
In their brief in this Court, respondents assert for the first
time that petitioners were in fact granted hearings after
they were returned to the penitentiary. More generally,
respondents say that within two months after the Board
revokes an individual's parole and orders him returned
to the penitentiary, on the basis of the parole officer's
written report it grants the individual a hearing before
the Board. At that time, the Board goes over "each of
476 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
the alleged parole violations with the returnee, and he
is given an opportunity to orally present his side of
the story to the Board." If the returnee denies the report,
it is the practice of the Board to conduct a further
investigation before making a final determination either
affirming the initial revocation, modifying it, or reversing
it.1 Respondents assert that Morrissey, whose parole
was revoked on January 31, 1969, was granted a hearing
before the Board on February 12, 1969. Booher's
parole was revoked on September 13, 1969, and he was
granted a hearing on October 14, 1969. At these hearings,
respondents tell us-in the briefs-both Morrissey
and Booher admitted the violations alleged in the parole
violation reports.
Nothing in the record supplied to this Court indicates
that respondent claimed, either in the District Court or
the Court of Appeals, that petitioners had received hearings
promptly after their paroles were revoked, or that
in such hearing they admitted the violations; that information
comes to us only in the respondents' brief here.
Further, even the assertions that respondents make here
are not based on any public record but on interviews
with two of the members of the parole board. In the
interview relied on to show that petitioners admitted
their violations, the board member did not assert he
could remember that both Morrissey and Booher admitted
the parole violations with which they were
charged. He stated only that, according to his memory,
in the previous several years all but three returnees
had admitted commission of the parole infractions al-
1 The hearing required by due process, as defined herein, must
be accorded before the effective decision. See Armstrong v. Manzo,
380 U. S. 545 ( 1965). Petitioners assert. here that only one of the
540 revocations ordered most recently by the Iowa Parole Board
was reversed after hearing, Petitioners' Reply Brief 7, suggesting
t-hat the hearing may not objectively evaluate the revocation decision.
MORRISSEY v. BREWER 477
471 Opinion of the Court
leged and that neither of the petitioners was among
the three who denied them.
We must therefore treat this case in the posture and
on the record respondents elected to rely on in the District
Court and the Court of Appeals. If the facts are otherwise,
respondents may make a showing in the District
Court that petitioners in fact have admitted the violations
charged before a neutral officer.
I
Before reaching the issue of whether due process applies
to the parole system, it is important to recall the
function of parole in the correctional process.
During the past 60 years, the practice of releasing
prisoners on parole before the end of their sentences
has become an integral part of the penological system.
Note, Parole Revocation in the Federal System, 56 Geo.
L. J. 705 (1968). Rather than being an ad hoe exercise
of clemency, parole is an established variation on imprisonment
of convicted criminals. Its purpose is to
help individuals reintegrate into society as constructive
individuals as soon as they are able, without being confined
for the full term of the sentence imposed. It
also serves to alleviate the costs to society of keeping
an individual in prison.2 The essence of parole is release
from prison, before the completion of sentence,
on the condition that the prisoner abide by certain rules
during the balance of the sentence. Under some systems,
parole is granted automatically after the service
of a certain portion of a prison term. Under others,
parole is granted by the discretionary action of a board,
which evaluates an array of information about a prisj
Sec Warren, Probation in the Federal System of Criminal Justice,
19 Fed. Prob. 3 (Sept. 1955); Annual Report, Ohio Adult Pa.role
Authority 1964/ 65, pp. 13-14; Note, Parole: A Critique of Its Legal
Foundations and Conditions, 38 N. Y. U L. Rev. 702, 705-707 (1963).
478 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
oner and makes a prediction whether he is ready to
reintegrate into society.
To accomplish the purpose of parole, those who are
allowed to leave prison early are subjected to specified
conditions for the duration of their terms. These conditions
restrict their activities substantially beyond the
ordinary restrictions imposed by law on an individual
citizen. Typically, parolees are forbidden to use liquor or
to have associations or correspondence with certain categories
of undesirable persons. Typically, also they must
seek permission from their parole officers before engaging
in specified activities, such as changing employment or
living quarters, marrying, acquiring or operating a motor
vehicle, traveling outside the community, and incurring
substantial indebtedness. Additionally, parolees must
regularly report to the parole officer to whom they are
assigned and sometimes they must make periodic written
reports of their activities. Arluke, A Summary of Parole
Rules-Thirteen Years Later, 15 Crime & Dehn. 267,
272-273 (1969).
The parole officers are part of the administrative system
designed to assist parolees and to offer them guidance.
The conditions of parole serve a dual purpose;
they prohibit, either absolutely or conditionally, behavior
that is deemed dangerous to the restoration of the
individual into normal society. And through the requirement
of reporting to the parole officer and seeking
guidance and permission before doing many things, the
officer is provided with information about the parolee
and an opportunity to advise him. The combination
puts the parole officer into the position in which he can
try to guide the parolee into constructive development.3
The enforcement leverage that supports the parole
conditions derives from the authority to return the pa-
3 Note, Observations on the Administration of Parole, 79 Yale
L. J. 698, 699-700 (1970).
MORRISSEY v. BREWER 479
471 Opinion of the Court
rolee to prison to serve out the balance of his sentence
if he fails to abide by the rules. In practice, not every
violation of parole conditions automatically leads to
revocation. Typically, a parolee will be counseled to
abide by the conditions of parole, and the parole officer
ordinarily does not take steps to have parole revoked
unless he thinks that the violations are serious
and continuing so as to indicate that the parolee is
not adjusting properly and cannot be counted on to
avoid antisocial activity.4 The broad discretion accorded
the parole officer is also inherent in some of the quite
vague conditions, such as the typical requirement that
the parolee avoid "undesirable" associations or correspondence.
Cf. Arciniega v. Freeman, 404 U. S. 4
( 1971). Yet revocation of parole is not an unusual
phenomenon, affecting only a few parolees. It has been
estimated that 35%-45% of all parolees are subjected
to revocation and return to prison." Sometimes revocation
occurs when the parolee is accused of another
crime; it is often preferred to a new prosecution because
of the procedural ease of recommitting the individual on
the basis of a lesser showing by the State.0
Implicit in the system's concern with parole violations
is the notion that the parolee is entitled to retain his liberty
as long as he substantially abides by the conditions of
his parole. The first step in a revocation decision thus
involves a wholly retrospective factual question: whether
the parolee has in fact acted in violation of one or more
conditions of his parole. Only if it is determined that
4 Ibid.
5 President's Commission on Law Enforcement and Administration
of Justice, Task Force Report: Corrections 62 (1967). The
substantial revocation rate indicates that parole administrators often
deliberately err on the side of granting parole in borderline cases.
6 See Morrissey v. Brewer, 443 F. 2d 942, at 953-954, n. 5 (CA8
1971) (Lay, J., dissenting); Rose v. Haskins, 388 F. 2d 91, 104
(CA6 1968) (Celebrezze, J ., dissenting).
480 OCTOBER TERM, 1971
Opinion of the Court 408 l'. S.
the parolee did violate the conditions does the second
question arise: should the parolee be recommitted to
prison or should other steps be taken to protect society
and improve chances of rehabilitation? The first step is
relatively simple; the second is more complex. The second
question involves the application of expertise by the
parole authority in making a prediction as to the ability
of the individual to live in society without committing
antisocial acts. This part of the decision, too, depends
on facts, and therefore it is important for the
board to know not only that some violation was committed
but also to know accurately how many and how
serious the violations were. Yet this second step, deciding
what to do about the violation once it is identified,
is not purely factual but also predictive and discretionary.
If a parolee is returned to prison, he usually receives no
credit for the time "served" on parole.1 Thus, the returnee
may face a potential of substantial imprisonment.
II
We begin with the proposition that the revocation
of parole is not part of a criminal prosecution and thus
the full panoply of rights due a defendant in such a
proceeding does not apply to parole revocations. Cf.
M empa v. Rhay, 389 U. S. 128 ( 1967). Parole arises
after the end of the criminal prosecution, including imposition
of sentence. Supervision is not directly by the
court but by an administrative agency, which is sometimes
an arm of the court and sometimes of the executive.
Revocation deprives an individual, not of the absolute
liberty to which every citizen is entitled, but only
of the conditional liberty properly dependent on observance
of special parole restrictions.
7 Arluke, A Summary of Parole Rules-Thirteen Years Later, 15
Crime and Delinquency 267, 271 (1969); Note, Parole Revocation
in the Federal System, 56 Geo. L. J. 705, 733 (1968).
MORRISSEY v. BREWER 481
471 Opinion of the Court
We turn, therefore, to the question whether the requirements
of due process in general apply to parole
revocations. As MR. JrsTICE BLACKMUN has written recently,
"this Court now has rejected the concept that
constitutional rights turn upon whether a governmental
benefit is characterized as a 'right' or as a 'privilege.' "
Graham v. Richardson, 403 U. S. 365, 374 (1971).
Whether any procedural protections are due depends on
the extent to which an individual will be "condemned to
suffer grievous loss.'' Joint Anti-Fascist Refugee Committee
v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter,
J., concurring), quoted in Goldberg v. Kelly, 397
U. S. 254, 263 (1970). The question is not merely the
"weight'' of the individual's interest, but whether the
nature of the interest is one within the contemplation of
the "liberty or property" language of the Fourteenth
Amendment. Fuentes v. Shevin, 407 U. S. 67 (1972).
Once it is determined that due process applies, the question
remains what process is due. It has been said so
often by this Court and others as not to require citation of
authority that due process is flexible and calls for such
procedural protections as the particular situation demands.
"[C]onsideration of what procedures due process
may require under any given set of circumstances
must begin with a determination of the precise nature of
the government function involved as well as of the
private interest that has been affected by governmental
action." Cafeteria & Restaurant Workers Union
v. McElroy, 367 U. S. 886, 895 (1961). To say that
the concept of due process is flexible does not mean
that judges are at large to apply it to any and all relationships.
Its flexibility is in its scope once it has been
determined that some process is due; it is a recognition
that not all situations calling for procedural safeguards
call for the same kind of procedure.
We turn to an examination of the nature of the interest
482 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
of the parolee in his continued liberty. The liberty of
a parolee enables him to do a wide range of things open
to persons who have never been convicted of any crime.
The parolee has been released from prison based on an
evaluation that he shows reasonable promise of being able
to return to society and function as a responsible, selfreliant
person. Subject to the conditions of his parole,
he can be gainfully employed and is free to be with
family and friends and to form the other enduring attachments
of normal life. Though the State properly
subjects him to many restrictions not applicable to other
citizens, his condition is very different from that of confinement
in a prison.8 He may have been on parole for
a number of years and may be living a relatively normal
life at the time he is faced with revocation.9 The parolee
has relied on at least an implicit promise that parole will
be revoked only if he fails to live up to the parole
conditions. In many cases, the parolee faces lengthy incarceration
if his parole is revoked.
We see , therefore, that the liberty of a parolee, although
indeterminate, includes many of the core values of unqualified
liberty and its termination inflicts a "grievous
loss" on the parolee and of ten on others. It is hardly
useful any longer to try to deal with this problem in terms
of whether the parolee's liberty is a "right" or a "privilege."
By whatever name, the liberty is valuable and
must be seen as within the protection of the Fourteenth
Amendment. Its termination calls for some orderly
process, however informal.
8 "It is not sophistic to attach greater importance to a person's
justifiable reliance in maintaining his conditional freedom so long as
he abides by the conditions of his release, than to his mere anticipation
or hope of freedom." United States ex rel. Bey v. Connecticut
Board of Parole, 443 F. 2d 1079, 1086 (CA2 1971).
0 See, e. g., Murray v. Page, 429 F. 2d 1359 (CAlO 1970) (parole
revoked after eight years; 15 years remaining on original term).
MORRISSEY v. BREWER 483
471 Opinion of the Court
Turning to the question what process is due, we find
that the State's interests are several. The State has
found the parolee guilty of a crime against the people.
That finding justifies imposing extensive restrictions on
the individual's liberty. Release of the parolee before the
end of his prison sentence is made with the recognition
that with many prisoners there is a risk that they will
not be able to live in society without committing additional
antisocial acts. Given the previous conviction
and the proper imposition of conditions, the State has
an overwhelming interest in being able to return the
individual to imprisonment without the burden of a
new adversary criminal trial if in fact he has failed to
abide by the conditions of his parole.
Yet, the State has no interest in revoking parole without
some informal procedural guarantees. Although the
parolee is often formally described as being "in custody,"
the argument cannot even be made here that summary
treatment is necessary as it may be with respect to controlling
a large group of potentially disruptive prisoners
in actual custody. Nor are we persuaded by the argument
that revocation is so totally a discretionary matter
that some form of hearing would be administratively intolerable.
A simple factual hearing will not interfere with
the exercise of discretion. Serious studies have suggested
that fair treatment on parole revocation will not result
in fewer grants of parole.10
This discretionary aspect of the revocation decision
nned not be reached unless there is first an appropriate
determination that the individual has in fact breached
10 Sklar, Law and Practice in Probation and Parole Revocation
Hearings, 55 J. Crim. L. C. & P. S. 175, 194 (1964) (no decrease in
Michigan, which grants extensive rights); Rose v. Haskins, 388 F. 2d
91, 102 n. 16 (CA6 1968) (Celebrezze, J., dissenting) (cost of imprisonment
so much greater than parole system that procedural
requirements will not change economic motivation).
484 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
the conditions of parole. The parolee is not the only one
who has a stake in his conditional liberty. Society has
a stake in whatever may be the chance of restormg him
to normal and useful life within the law. Society thus
has an interest in not having parole revoked because of
erroneous information or because of an erroneous evaluation
of the need to revoke parole, given the breach of
parole conditions. See People ex rel. M enechi,w v.
Warden, 27 N. Y. 2d 376, 379, and n. 2, 267 N. E. 2d
238, 239, and n. 2 (1971) (parole board had less than
full picture of facts). And society has a further interest
in treating the parolee with basic fairness: fair treatment
in parole revocations will enhance the chance of rehabilitation
by avoiding reactions to arbitrariness.11
Given these factors, most States have recognized that
there is no interest on the part of the State in revoking
parole without any procedural guarantees at all.12 What
is needed is an informal hearing structured to assure that
the finding of a parole violation will be based on verified
facts and that the exercise of discretion will be informed
by an accurate knowledge of the parolee's behavior.
III
We now turn to the nature of the process that is due,
bearing in mind that the interest of both State and
11 See President's Commission on Law Enforcement and Administration
of Justice, Task Force Report: Corrections 83, 88 (1967).
12 See n. 15, infra. As one state court has written, "Before such
a determination or finding can be made it appears that the principles
of fundamental justice and fairness would afford the parolee a reasonable
opportunity to explain away the accusation of a parole violation.
[The parolee] ... is entitled to a conditional liberty and possessed
of a right which can be forfeited only by reason of a breach of the
conditions of the grant." Chase v. Page, 456 P. 2d 590, 594 (Okla.
Crim. App. 1969).
MORRISSEY v. BREWER 485
471 Opinion of the Court
parolee will be furthered by an effective but informal
hearing. In analyzing what is due, we see two important
stages in the typical process of parole revocation.
(a) Arrest of Parolee and Preliminary Hearing. The
first stage occurs when the parolee is arrested and detained,
usually at the direction of his parole officer. The
second occurs when parole is formally revoked. There is
typically a substantial time lag between the arrest and
the eventual determination by the parole board whether
parole should be revoked. Additionally, it may be that
the parolee is arrested at a place distant from the state
institution, to which he may be returned before the final
decision is made concerning revocation. Given these
factors, due process would seem to require that some
minimal inquiry be conducted at or reasonably near the
place of the alleged parole violation or arrest and as
promptly as convenient after arrest while information is
fresh and sources are available. Cf. Hyser v. Reed, 115
U. S. App. D. C. 254, 318 F. 2d 225 (1963). Such an
inquiry should be seen as in the nature of a "preliminary
hearing" to determine whether there is probable cause
or reasonable ground to believe that the arrested parolee
has committed acts that would constitute a violation of
parole conditions. Cf. Goldberg v. Kelly, 397 U. S., at
267-271.
In our view, due process requires that after the arrest,
the determination that reasonable ground exists for revocation
of parole should be made by someone not directly
involved in the case. It would be unfair to assume that
the supervising parole officer does not conduct an interview
with the parolee to confront him with the reasons
for revocation before he recommends an arrest. It would
also be unfair to assume that the parole officer bears
hostility against the parolee that destroys his neutrality;
realistically the failure of the parolee is in a sense a
486 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
failure for his supervising offi.cer.13 However, we need
make no assumptions one way or the other to conclude
that there should be an uninvolved person to make this
preliminary evaluation of the basis for believing the conditions
of parole have been violated. The officer directly
involved in making recommendations cannot always have
complete objectivity in evaluating them.14 Goldberg v.
Kelly found it unnecessary to impugn the motives of
the caseworker to find a need for an independent
decisionmaker to examine the initial decision.
This independent officer need not be a judicial officer.
The granting and revocation of parole are matters traditionally
handled by administrative officers. In Goldberg,
the Court pointedly did not require that the hearing
on termination of benefits be conducted by a judicial officer
or even before the traditional "neutral and detached"
officer; it required only that the hearing be conducted
by some person other than one initially dealing with
the case. It will be sufficient, therefore, in the parole
revocation context, if an evaluation of whether reasonable
cause exists to believe that conditions of parole have
been violated is made by someone such as a parole officer
other than the one who has made the report of parole
violations or has recommended revocation. A State could
certainly choose some other independent decisionmaker
to perform this preliminary function.
With respect to the preliminary hearing before this
officer, the parolee should be given notice that the hear-
13 Note, Observations on the Administration of Parole, 79 Yale
L. J. 698, 704-706 (1970) (parole officers in Connecticut adopt role
model of social worker rather than an adjunct of police, and exhibit
a lack of punitive orientation).
14 This is not an issue limited to bad motivation. "Parole agents
are human, and it is possible tha.t friction between the agent and
parolee may have influenced the agent's judgment." 4 Attorney
General's Survey on Release Procedures: Parole 246 ( 1939).
MORRISSEY v. BREWER 487
471 Opinion of the Court
ing will take place and that its purpose is to determine
whether there is probable cause to believe he has committed
a parole violation. The notice should state what
parole violations have been alleged. At the hearing
the parolee may appear and speak in his own behalf;
he may bring letters, documents, or individuals who can
give relevant information to the hearing officer. On
request of the parolee, a person who has given adverse
information on which parole revocation is to be based
is to be made available for questioning in his presence.
However, if the hearing officer determines that an informant
would be subjected to risk of harm if his identity
were disclosed, he need not be subjected to confrontation
and cross-examination.
The hearing officer shall have the duty of making a
summary, or digest, of what occurs at the hearing
in terms of the responses of the parolee and the substance
of the documents or evidence given in support of
parole revocation and of the parolee's position. Based on
the information before him, the officer should determine
whether there is probable cause to hold the parolee for the
final decision of the parole board on revocation. Such a
determination would be sufficient to warrant the parolee's
continued detention and return to the state conectional
institution pending the final decision. As in Goidberg,
"the decision maker should state the reasons for his
determination and indicate the evidence he relied on ... "
but it should be remembered that this is not a final
determination calling for "formal findings of fact and
conclusions of law." 397 U. S., at 271. No interest
would be served by formalism in this process; informality
will not lessen the utility of this inquiry in reducing the
risk of error.
(b) The Revocation Hearing. There must also be an
opportunity for a hearing, if it is desired by the parolee,
prior to the final decision on revocation by the parole
488 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
authority. This hearing must be the basis for more than
determining probable cause; it must lead to a final
evaluation of any contested relevant facts and consideration
of whether the facts as determined warrant revocation.
The parolee must have an opportunity to be
heard and to show, if he can, that he did not violate the
conditions, or, if he did, that circumstances in mitigation
suggest that the violation does not warrant revocation.
The revocation hearing must be tendered within a reasonable
time after the parolee is taken into custody. A
lapse of two months, as respondents suggest occurs in some
cases, would not appear to be unreasonable.
We cannot write a code of procedure; that is the responsibility
of each State. Most States have done so
by legislation, others by judicial decision usually on due
process grounds.1
" Our task is limited to deciding the
15 Very few States provide no hearing at aU in parole revocations.
Thirty States provide in their statutes that a parolee shall
receive some type of hearing. See Ala. Code, Tit. 42, § 12 (1959);
Alaska Stat. § 33.15.220 (1962); Ariz. Rev. Stat. Ann. § 31-417
( 1956); Ark. Stat. Ann. § 43-2810 (Supp. 1971); DeL Code Ann.,
Tit. 11, § 4352 (Supp. 1970); Fla. Stat. Ann. § 947.23 (1) (Supp.
1972); Ga. Code Ann. § 77-519 (Supp. 1971); Haw. Rev. Stat.
§ 353-66 (1968); Idaho Code §§ 20-229, 20--229A (Supp. 1971); Ill.
Ann. Stat., c. 108, §§ 204 (e), 207 (Supp. 1972); Ind. Ann. Stat.
§ 13-1611 (Supp. 1972); Kan. Stat. Ann.§ 22-3721 (1971); Ky. Rev.
St.at. Ann. § 439.330 (1) (e) (1962); La. Rev. Stat. Ann. § 15:574.9
(Supp. 1972); Me. Rev. Stat. Ann., Tit. 34, § 1675 (Supp. 1970-
1971); Md. Ann. Code, Art. 41, § 117 (1971); Mich. Comp. Laws
§ 791.240a, Mich. Stat. Ann.§ 28.2310 (1) (Supp. 1972); Miss. Code
Ann. § 4004-13 (1956); Mo. Ann. Stat. § 549.265 (Supp. 1971); Mont.
Rev. Codes Ann. §§ 94-9838, 94-9835 (1969); N. H. Rev. Stat. Ann.
§ 607:46 (1955); N. M. St.at. Ann.§ 41-17-28 (1972); N. Y. Correc.
Law § 212 subd. 7 (Supp. 1971); N. D. Cent. Code § 12- 59- 15
(Supp. 1971); Pa. Stat. Ann., Tit. 61, § 331.21a (b) (1964); Tenn.
Code Ann. § 40-3619 (1955); Tex. Code Crim. Proc., Art. 42.12, § 22
(1966); Vt. Stat. Ann., Tit. 28, § 1081 (b) (1970); Wash. Rev.
Code §§ 9.95.120 through 9.95.126 (Supp. 1971); W. Va. Code Ann.
§ 62-12-19 (1966). Decisions of state and federal courts have reMORRISSEY
v. BREWER 489
471 Opinion of the Court
minimum requirements of due process. They includ€
(a) writt€n notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him;
( c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to
confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation); (e) a "neutral and detached" hearing
body such as a traditional parole board, members
of which need not be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the
evidence relied on and reasons for revoking parole. We
emphasize there is no thought to equat€ this second stage
of parole revocation to a criminal prosecution in any
sense. It is a narrow inquiry; the process should be
flexible enough to consider evidence including letters,
affidavits, and other material that would not be admissible
in an adversary criminal trial.
We do not reach or decide the question whether the
parolee is entitled to the assistance of retained counsel
or to appointed counsel if he is indigent.16
quired a number of other States to provide hearings. Sec Hutchison
v. Patterson, 267 F. Supp. 433 (Colo. 1967) (approving parole
board regulations); United States ex rel. Bey v. Connecticut State
Board of Parole, 443 F. 2d 1079 (CA2 1971) (requiring counsel to
be appointed for revocation hearings); State v. Holmes, 109 N. J.
Super. 180, 262 A. 2d 725 (1970); Chase v. Page, 456 P. 2d 590
(Okla. Crim. App. 1969); Bearden v. South Carolina, 443 F.
2d 1090 (CA4 1971); Baine v. Beckstead, 10 Utah 2d 4, 347 P. 2d
554 (1959); Goolsby v. Gagnon, 322 F. Supp. 460 (ED Wis. 1971)
A number of States are affected by no legal requirement to grant any
kind of hearing.
16 The Model Penal Code § 305 .15 ( 1) (Proposed Official Draft
1962) provides that " [ t] he institutional parole staff shall render
reasonable aid to the parolee in preparation for the hearing and he
shall be permitted to advise with his own legal counsel."
490 OCTOBER TERM, 1971
BRENNAN, J., concurring in result 408U.S.
We have no thought to create an inflexible structure
for pa.role revocation procedures. The few basic requirements
set out above, which are applicable to future
revocations of parole, should not impose a great
burden on any State's parole system. Control over the
required proceedings by the hearing officers can assure
that delaying tactics and other abuses sometimes present
in the traditional adversary trial situation do not
occur. Obviously a parolee cannot relitigate issues determined
against him in other forums, as in the situation
presented when the revocation is based on conviction of
another crime.
In the peculiar posture of this case, given the absence
of an adequate record, we conclude the ends of justice
will be best served by remanding the case to the Court of
Appeals for its return of the two consolidated cases to the
District Court with directions to make findings on the procedures
actually followed by the Parole Board in these two
revocations. If it is determined that petitioners admitted
parole violations to the Parole Board, as respondents contend,
and if those violations are found to be reasonable
grounds for revoking parole under state standards, that
would end the matter. If the procedures followed by the
Parole Board are found to meet the standards laid down
in this opinion that, too, would dispose of the due process
claims for these cases.
We reverse and remand to the Court of Appeals for
further proceedings consistent with this opinion.
Reverse,d and remanded.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL
joins, concurring in the result.
I agree that a parole may not be revoked, consistently
with the Due Process Clause, unless the parolee is afforded,
first, a preliminary hearing at the time of arrest
to determine whether there is probable cause to believe
MORRISSEY v. BREWER 491
471 DouGLAS, J., dissenting in part
that he has violated his parole conditions and, second, a
final hearing within a reasonable time to determine
whether he has, in fact, violated those conditions and
whether his parole should be revoked. For each hearing
the parolee is entitled to notice of the violations alleged
and the evidence against him, opportunity to be heard in
person and to present witnesses and documentary evidence,
and the right to confront and cross-examine adverse
witnesses, unless it is specifically found that a
witness would thereby be exposed to a significant risk of
harm. Moreover, in each case the decisionmaker must
be impartial, there must be some record of the proceedings,
and the decisionmaker's conclusions must be set
forth in written form indicating both the evidence and
the reasons relied upon. Because the Due Process Clause
requires these procedures, I agree that the case must be
remanded as the Court orders.
The Court, however, states that it does not now decide
whether the parolee is also entitled at each hearing to the
assistance of retained counsel or of appointed counsel if
he is indigent. Goldberg v. Kelly, 397 U. S. 254 (1970),
nonetheless plainly dictates that he at least "must be
allowed to retain an attorney if he so desires." I d., at
270. As the Court said there, "Counsel can help delineate
the issues, present the factual contentions in an
orderly manner, conduct cross-examination, and generally
safeguard the interests of" his client. / d., at 270-271.
The only question open under our precedents is whether
counsel must be furnished the parolee if he is indigent.
MR. JusTICE DOUGLAS, dissenting in part.
Each petitioner was sentenced for a term in an Iowa
penitentiary for forgery. Somewhat over a year later each
was released on parole. About six months later, each was
arrested for a parole violation and confined in a local jail.
In about a week, the Iowa Board of Parole revoked their
492 OCTOBER TERM, 1971
DOUGLAS, J., dissenting in part 408 U.S.
paroles and each was returned to the penitentiary. At
no time during any of the proceedings which led to
t-he parole revocations were they granted a hearing or the
opportunity to know, question, or challenge any of the
facts which formed the basis of their alleged parole violations.
Nor were they given an opportunity to present
evidence on their own behalf or to confront and crossexamine
those on whose testimony their paroles were
revoked.
Each challenged the revocation in the state courts and,
obtaining no relief, filed the present petitions in the
Federal District Court, which denied relief. Their appeals
were consolidated in the Court of Appeals which,
sitting en bane, in each case affirmed the District Court
by a four-to-three vote, 443 F. 2d 942. The cases are here
on a petition for a writ of certiorari, 404 U.S. 999, which
we granted because there is a conflict between the decision
below and Hahn v. Burke, 430 F. 2d 100, decided by
the Court of Appeals for the Seventh Circuit.
Iowa has a board of parole 1 which determines who
shaU be paroled. Once paroled, a person is under the
supervision of the director of the division of corrections
of the Department of Social Services, who, in turn, supervises
parole agents. Parole agents do not revoke the
parole of any person but only recommend that the board
of parole revoke it. The Iowa Act provides that each
parolee "shall be subject, at any time, to be taken into
custody and returned to the institution" from which he
1 Iowa Code § 247.5 (1971) provides in part:
"The board of parole shall determine which of the inmates of the
state penal institutions qualify and thereafter shall be placed upon
parole. Once an inmate is placed on parole he shall be under the
supervision of the director of the division of corrections of the department
of social services. There shall be a sufficient nnmher of
parole agents to insure proper supervision of all persons placed on
parole. Parole agents shall not revoke the parole of any person
but may recommend that the board of parole revoke such parole."
MORRISSEY v. BREWER 493
471 DouGLAS, J ., dissenting in part
was paroled.2 Thus, Iowa requires no notice or hearing
to put a parolee back in prison, Curtis v. Bennett, 256
Iowa 1164, 131 N. W. 2d 1; and it is urged that since
parole, like probation, is only a privilege it may be summarily
revoked.3 See Escoe v. Zerbst, 295 U. S. 490, 492-
493; Ughbanks v. Armstrong, 208 U. S. 481. But we
have long discarded the right-privilege distinction. See,
e. g., Graham v. Richardson, 403 U. S. 365, 374; Bell v.
Burson, 402 U. S. 535, 539; Pickering v. Board of Education,
391 U.S. 563, 568; cf. Van Alstyne, The Demise of
the Right-Privilege Distinction in Constitutional Law,
81 Harv. L. Rev. 1439 (1968).
The Court said in United States v. Wilson, 7 Pet. 150,
161, that a "pardon is a deed." The same can be said of
a parole, which \vhen conferred gives the parolee a degree
of liberty which is often associated with property interests.
2 Id.,§ 247.9 provides in part:
"All paroled prisoners shall remain, while on parole, in the legal
custody of the warden or superintendent and under the control of
the chief parole officer, and shall be subject, at any time, to be taken
into custody and returned to the institution from which they were
paroled."
3 "A fundamental problem with [the right-privilege] theory is
that probation is now the most frequent penal disposition just as
relea.;;e on parole is the most frequent form of release from an institution.
They bear little resemblance to episodic acts of mercy
by a forgiving sovereign. A more accurate view of supervised release
is that, it is now an integral part of the criminal justice process
and shows every sign of increasing popularity. Seen in this light.
the question becomes whether legal safeguards should be provided
for hundreds of thousands of individuals who daily are processed and
regulated by governmental agencies. The system has come to depend
on probation and parole as much as do those who are enmeshed
in the system. Thus, in dealing with claims raised by
offenders, we should makf' decisions based not on an outworn cliche
but on the basis of present-day realities." F. Cohen, The Legal
Challenge to Corrections: Implications for Manpower and Training
32 (Joint Commission on Correctional Manpower and Training
1969).
494 OCTOBER TERM, 1971
DOUGLAS, J., dissenting in part 408 u. s.
We held in Goldberg v. Kelly, 397 U. S. 254, that the
termination by a State of public assistance payments to
a recipient without a prior evidentiary hearing denies him
procedural due process in violation of the Fourteenth
Amendment. Speaking of the termination of welfare
benefits we said:
"Their termination involves state action that adjudicates
important rights. The constitutional challenge
cannot be answered by an argument that public
assistance benefits are 'a "privilege" and not a
"right."' Shapiro v. Thompson, 394 U. S. 618, 627
n. 6 ( 1969). Relevant constitutional restraints apply
as much to the withdrawal of public assistance
benefits as to disqualification for unemployment
compensation, Sherbert v. Verner, 374 U. S. 398
(1963); or to denial of a tax exemption, Speiser v.
Randall, 357 U. S. 513 (1958); or to discharge from
public employment, Slochower v. Board of Higher
Education, 350 U. S. 551 (1956). The extent to
which procedural due process must be afforded the
recipient is influenced by the extent to which he
may be 'condemned to suffer grievous loss,' Joint
Anti-Fascist Refugee Committee v. McGrath, 341
U. S. 123, 168 (1951) (Frankfurter, J., concurring),
and depends upon whether the recipient's interest in
avoiding that loss outweighs the governmental interest
in summary adjudication. Accordingly, as we
said in Cafeteria & Restaurant Workers Union v.
McElroy, 367 U. S. 886, 895 (1961), 'consideration
of what procedures due process may require under
any given set of circumstances must begin with a
determination of the precise nature of the government
function involved as well as of the private
interest that has been affected by governmental
action.' See also Hannah v. Larche, 363 U. S. 420,
440, 442 (1960)." 397 U. S., at 262-263.
MORRISSEY v. BREWER 495
471 DouGLAS, J., dissenting in part
Under modern concepts of penology, paroling prisoners
is part of the rehabilitative aim of the correctional philosophy.
The objective is to return a prisoner to a full
family and community life. See generally Note, Parole
Revocation in the Federal System, 56 Geo. L. J. 705
(1968); Note, Parole: A Critique of Its Legal Foundations
and Conditions, 38 N. Y. U. L. Rev. 702 (1963);
Comment, 72 Yale L. J. 368 (1962); and see Baine v.
Beckstead, 10 Utah 2d 4, 347 P. 2d 554 (1959). The
status he enjoys as a parolee is as important a right as
those we reviewed in Goldberg v. Kelly. That status is
conditioned upon not engaging in certain activities and
perhaps in not leaving a certain area or locality. Violations
of conditions of parole may be technical, they
may be done unknowingly, they may be fleeting and of
no consequence.4 See, e. (J., Arciniega v. Freeman, 404
U. S. 4; Cohen, Due Process, Equal Protection and State
Parole Revocation Proceedings, 42 U. Colo. L. Rev. 197,
229 (1970). The parolee should, in the concept of fairness
implicit in due process, have a chance to explain.
Rather, under Iowa's rule revocation proceeds on the
ipse d-ixit of the parole agent; and on his word alone each
of these petitioners has already served three additional
years in prison. 5 The charges may or may not be true.
Words of explanation may be adequate to transform into
trivia what looms large in the mind of the parole officer.
"[T]here is no place in our system of law for reach-
4 The violations alleged in these cases on which revocation was
based are listed by the Court of Appeals, 443 F. 2d 942, 943- 944, nn.
1 and 2.
For a discussion of the British system that dispenses with precise
conditions usually employed here see 120 U. Pa. L. Rev. 282, 311-
312 (1971). As to conditions limiting constitutional rights see id.,
at 313-324, 326-339.
5 As to summary deprivations of individual liberty in Communist
nations, see, e. g., Shao-chuan Leng, Justice In Comrnnnist. China
34 (1967); 1 P. Tang, Communist China Today 271 (2d ed. 1961);
J. Hazard, Communists and Their Law 121-126 (1969).
496 OCTOBER TERM, 1971
DouGLAS, J., dissenting in part 408 u. s.
ing a result of such tremendous consequences without
ceremony-without hearing, without effective
assistance of counsel, without a statement of reasons."
Kent v. United States, 383 U. S. 541, 554
(1966).
Parole,6 while originally conceived as a judicial function,
has become largely an administrative matter. The
parole boards have broad discretion in formulating and
imposing parole conditions. "Often vague and moralistic,
parole conditions may seem oppressive and unfair to the
parolee." R. Dawson, Sentencing 306 (1969). They are
drawn "to cover any contingency that might occur,"
id., at 307, and are designed to maximize "control over
the parolee by his parole officer." Ibid.
Parole is commonly revoked on mere suspicion that the
parolee may have committed a crime. Id., at 366-367.
Such great control over the parolee vests in a parole officer
a broad discretion in revoking parole and also in
counseling the parolee-referring him for psychiatric
treatment or obtaining the use of specialized therapy for
narcotic addicts or alcoholics. I d., at 321. Treatment of
the parolee, rather than revocation of his parole, is a
common course. Id., at 322-323. Counseling may include
extending help to a parolee in finding a job. Id.,
at 324 et seq.
A parolee, like a prisoner, is a person entitled to constitutional
protection, including procedural due process:
At the federal level, the construction of regulations of
the Federal Parole Board presents federal questions of
6 "Parole is used after a sentence has been imposed while probation
is usually granted in lieu of a prison term." R. Clegg, Probation
and Parole 22 (1964). See Baine v. Beckstead, 10 Utah 2d 4, 9,
347 P. 2d 554, 558; People ex rel. Combs v. LaVallee, 29 App.
Div. 2d 128, 131, 286 N. Y. S. 2d 600, 603.
7 See Presidert's CommiRRion on Law Enforcemer.t and Administration
of Justice, Task Force Report: Corrections 83, 84 (1967); 120
U. Pa. L. Rev. 282, 348-358 (1971).
MORRISSEY v. BREWER 497
471 DouGLAS, J., dissenting in part
which we have taken cognizance. See Arciniega v. Freeman,
404 U. S. 4. At the state level, the construction of
parole statutes and regulations is for the States alone,
save as they implicate the Federal Constitution in which
event the Supremacy Clause controls.
It is only procedural due process, required by the
Fourteenth Amendment, that concerns us in the present
cases. Procedural due process requires the following.
If a violation of a condition of parole is involved, rather
than the commission of a new off ense, there should not be
an arrest of the parolee and his return to the prison or to a
local jail.8 Rather, notice of the alleged violation should
be given to the parolee and a time set for a hearing.9 The
8 As Judge Skelly Wright said in Hyser v. Reed, 115 U. S. App.
D. C. 254, 291, 318 F. 2d 225, 262 (1963) (concurring in part and
dissenting in part):
"Where serious violations of parole have been committed, the
parolee will have been arrested by local or federal authorities on
charges ~t.f>mming from those violations. Where the violation of
parole is not serious, no reason appears why he should be incarcerated
before hearing. If, of course, the parolee willfully fails to appear
for his hearing, this in itself would justify issuance of the warrant."
Accord, In re Tucker, 5 Cal. 3d 171, 199-200, 486 P. 2d 657, 676
(1971) (Tobriner, J., concurring and dissenting).
0 As we said in another connection in Greene v. McElroy, 360
U. S. 47 4, 496-497:
"Certain principles have remained relatively immutable in our
jurisprudence. One of these is that where governmental action
seriously injures an individual, and the reasonableness of the action
depends on fact findings, the evidence used to prove the Government's
case must be disclosed to the individual so that he has an
opportunity to show that it is untrue. While this is important in
the case of documentary evidence, it is even more important where
the evidence consists of the testimony of individuals whose memory
might be faulty or who, in fact,. might be perjurers or persons motivated
by malice, vindictiveness, intolerance, prejudice, or jealousy.
We have formalized these protections in the requirements of confrontation
and cross-examination. They have ancient roots. They
find expression in the Sixth Amendment which provides that in all
criminal cases the accused shall enjoy the right 'to be confronted
498 OCTOBER TERM, 1971
DouGLAS, J., dissenting in part 408 u. s.
hearing should not be befor~ the parole officer, as he is
the one who is making the charge and "there is inherent
danger in combining the functions of judge and advocate."
Jones v. Rivers, 338 F. 2d 862, 877 (CA4 1964)
(Sobeloff, J., concurring). Moreover, the parolee should
be entitled to counsel.10 See Hewett v. North Carolina,
415 F. 2d 1316, 1322-1325 (CA4 1969); People ex rel.
Combs v. LaVallee, 29 App. Div. 2d 128, 286 N. Y. S.
2d 600 (1968); Perry v. Williard, 247 Ore. 145, 427 P. 2d
1020 (1967). As the Supreme Court of Oregon said in
Perry v. Williard, "A hearing in which counsel is absent
or is present only on behalf of one side is inherently unsatisfactory
if not unfair. Counsel can see that relevant
facts are brought out, vague and insubstantial allegations
discounted, and irrelevancies eliminated." Id., at 148,
with the witnesses against him.' This Court has been zealous to
protect these rights from erosion. It has spoken out not only in
criminal cases, but also in all types of cases where administrative and
regulatory actions were under scrutiny." (Citations omitted.)
10 American Bar Association Project on Standards for Criminal
Justice, Providing Defense Services 43 (Approved Draft 1968);
Model Penal Code § 301.4, § 305.15 ( 1) (Proposed Official Draft
1962); R. Dawson, Sentencing (1969). For the experience of
Michigan in giving hearings to parolees see id., at 355. In Michigan,
it is estimated that only one out of six parole violators
retains counsel. One who cannot afford counsel is said to be protected
by the hearing members of the board. Id., at 354. The
number who ask for public hearings are typically five or six a year,
the largest in a single year being 10. Michigan has had this law since
1937. Id., at 355. But the Michigan experience may not be typical,
for a parole violator is picked up and returned at once to the institution
from which he was paroled. Id., at 352-353.
By way of contrast, parole revocation hearings in California are
secretive affairs conducted behind closed doors and with no written
record of the proceedings and in which the parolee is denied the
assistance of counsel and the opportunity to present witnesses on his
behalf. Van Dyke, Parole Revocation Rea.rings in California: The
Right to Counsel, 59 Calif. L. Rev. 1215 (1971). See also Note, 56
Geo. L. J. 705 ( 1968) ( federal parole revocation procedures).
MORRISSEY v. BREWER 499
471 DouGLAS, .T., dissenting in part
427 P. 2d, at 1022. Cf. Mempa v. Rhay, 389 U. S. 128,
135.
The hearing required is not a grant of the full panoply
of rights applicable to a criminal trial. But confrontation
with the informer may, as Roviaro v. United States,
353 U. S. 53, illustrates, be necessary for a fair hearing
and the ascertainment of the truth. The hearing is
to determine the fact of parole violation. The results
of the hearing would go to the parole board-or other
authorized state agency-for final action, as would cases
which involved voluntary admission of violations.
The rule of law is important in the stability of society.
Arbitrary actions in the revocation of paroles can only impede
and impair the rehabilitative aspects of modern penology.
"Notice and opportunity for hearing appropriate
to the nature of the case," Boddie v. Connecticut, 401
U. S. 371, 378, are the rudiments of due process which
restore faith that our society is run for the many, not the
few, and that fair dealing rather than caprice will govern
the affairs of men.11
I would not prescribe the precise formula for the management
of the parole problems. We do not sit as an
ombudsman, telling the States the precise procedures
they must follow. I would hold that so far as the due
process requirements of parole revocation are concerned: 12
( 1) the parole officer-whatever may be his duties
under various state statutes- in Iowa appears to be an
agent having some of the functions of a prosecutor and
11 The Brief of the American Civil Liberties Union, amicus curiae,
contains in Appendix A the States that by statute or decision require
some form of hearing before parole is revoked and those that do
not. All but nine States now hold hearings on revocation of probation
and parole, some with trial-type rights including representation
by counsel.
12 We except of course the commission of another offense which
from the initial step to the end is governed by the normal rules of
criminal procedure.
500 OCTOBER TERM, 1971
DouGLAS, J., dissenting in part 408U.S.
of the police: the parole officer is therefore not qualified
as a hearing officer;
(2) the parolee is entitled to a due process notice and
a due process hearing of the alleged parole violations including,
for example, the opportunity to be confronted
by his accusers and to present evidence and argument on
his own behalf; and
(3) the parolee is entitled to the freedom granted a
parolee until the results of the hearing are known and
the parole board-or other authorized state agencyacts.
13
I would reverse the judgments and remand for further
consideration in light of this opinion.
13 The AmP.rican Correctional Association states in its Manual of
Correctional Standards 279 ( 3d ed. 1966) that:
"To an even greater extent than in the case of imprisonment,
probation and parole practice is determined by an administrative
discretion that is largely uncontrolled by legal standards, protections,
or remedies. Until statutory and case law are more fully developed,
it is vitally important within all of the correctional fields that there
should be established and maintained reasonable norms and remedies
against the sorts of abuses that are likely to develop where men
have great power over their fellows and where relationships may
become both mechanical and arbitrary."
And it provides for parole revocation hearings:
"As soon as practicable after causing an alleged violator [to be]
taken into custody on the basis of a parole board warrant, the prisoner
should be given an opportunity to appear before the board or its
representative. The prisoner should be made fully aware of the
reasons for the warrant, nnd given ample opportunity to refute the
charges placed against him or to comment as to extenuating circumstances.
The hearing should be the basis for consideration of
possible reinstatement to parole supervision on the basis of the
findings of fact or of reparole where it appears that further incarceration
would serve no useful purpose." Id., at 130.
The American Bar Association states at p. 10 of its brief amicus in
the present cases that it is "in full agreement with the American Correctional
Association in thie instance. The position that a hearing
is to be afforded on parole revocation is consistent with several sets
of criminal justice standards formally approved by the Association
through its House of Delegates."
UNITED STATES v. BREWSTER 501
Syllabus
UNITED STATES v. BREWSTER
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF' COLUMBIA
No. 70-45. Argued October 18, 1971-Reargued March 20, 1972-
Decided June 29, 1972
Appellee, a former United States Senator, was charged with the
solicitation and acceptance of bribes in violation of 18 U. S. C.
§§ 201 (c) (1) and 201 (g). The District Court, on appellee's pretrial
motion, dismissed the indictment on the ground that the
Speech or Debate Clause of the Constitution shielded him "from
any prosecution for alleged bribery to perform a legislative act."
The United States filed a direct appeal to this Court under 18
U.S. C.§ 3731 (1964 ed., Supp. V), which appellee contends this
Court does not have jurisdiction to entertain because the District
Court's action was not "a decision or judgment setting aside, or
dismissing" the indictment but was instead a ~11mmary judgment
on the merits based on the facts of the case. Held:
1. This Court has jurisdiction under 18 U. S. C. § 3731 (1964
ed., Supp. V) to hear the appeal, since the District Court's order
was based upon its determination of the constitutional invalidity
of 18 U.S. C. §§ 201 (c) (1) and 201 (g) on the facts as alleged in
the indictment. Pp. 504-507.
2. The prosecution of appellee is not prohibited by the Speech
or Debate Clause. Although that provision protects Members of
Congress from inquiry into legislative acts or the motivation for
performance of such acts, United States v. Johnson, 383 U. S. 169,
185, it does not protect all conduct relating to the legislative process.
Since in this case prosecution of the bribery charges does not
necessitate inquiry into legislative acts or motivation, the District
Court erred in holding that the Speech or Debate Clause required
dismissal of the indictment. Pp. 507-529.
Reversed and remanded.
BURGER, C. J., delivered the opinion of the Court, in which STEWART,
.MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
BRENNAN, J., filed a dissenting opinion in which DOUGLAS, J., joined,
post, p. 529. WHITE, J., filed a dissenting opinion, in which DouGLAS
and BRENNAN, JJ., joined, post, p. 551.
502 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
Solicitor General Griswold reargued the cause for the
United States. With him on the briefs on the original
argument were Assistant Attorney General Wilson,
Jerome M. Feit, and Beatrice Rosenberg. With him on
the brief on the reargument were Assistant Attorney
Gener-al Petersen and Mr. Feit.
Norman I'. Ramsey reargued the cause for appellee.
With him on the briefs were Thomas Waxter, Jr., and
H. Thomas Howell.
MR. CHIEF JusTICE BURGER delivered the opinion of
the Court.
This direct appeal from the District Court presents
the question whether a Member of Congress may be
prosecuted under 18 U.S. C. §§201(c)(l), 20l(g),
for accepting a bribe in exchange for a promise relating
to an official act. Appellee, a former United States
Senator, was charged in five counts of a 10-count
indictment.1 Counts one, three, five, and seven alleged
that on four separate occasions, appellee, while he was
a Senator and a member of the Senate Committee on
Post Office and Civil Service,
"directly and indirectly, corruptly asked, solicited,
sought, accepted, received and agreed to receive
[sums] ... in return for being influenced in his
performance of official acts in respect to his action,
vote, and decision on postage rate legislation which
might at any time be pending before him in his
official capacity . . . in violation of Sections 201
(c) (1) and 2, Title 18, United States Code." 2
1 The remaining five counts charged the alleged bribers with offering
and giving bribes in violation of 18 U. S. C. § 201 (b).
2 Title 18 U.S. C. § 201 (c) provides: "Whoever, being a public official
or person selected to be a public official, directly or indirectly,
corruptly asks, demands, exacts, solicits, seeks, accepts, receives,
U:-l"ITED ST ATES v. BREWSTER 503
501 Opinion of the Court
Count mne charged that appellee
"directly and indirectly, asked, demanded, exacted,
solicited, sought, accepted, received and agreed to
receive [ a sum] . . . for and because of official
acts performed by him in respect to his action,
vote and decision on postage rate legislation which
had been pending before him in his official capacity
... in violation of Sections 201 (g) and 2, Title
18, United States Code." 3
Before a trial date was set, the appellee moved to
dismiss the indictment on the ground of immunity under
the Speech or Debate Clause, Art. I, § 6, of the Constitution,
which provides:
"[F]or any Speech or Debate in either House, they
[Senators or Representatives] shall not be questioned
in any other Place."
After hearing argument, the District Court ruled from
the bench:
"Gentlemen, based on the facts of this case,
or agrees to receive anything of value for himself or for any other
person or entity, in return for:
" ( 1) being influenced in his performance of any official act . . .
[shall be guilty of an offense]."
Title 18 U.S. C.§ 201 (a) defines "public official" to include "l'vlember
of Congress." The same subsection provides: "'official act' means
any decision or action on any question, matter, cause, suit, proceeding
or controversy, which may at any time be pending, or which may by
law be brought before any public official, in his official capacity, or
in his place of trust or profit." Title 18 U. S. C. § 2 is the aiding
or abetting st'.ltute.
3 Title 18 U. S. C.§ 201 (g) provides: "Whoever, being a public official,
former public official, or person selected to be a public official,
otherwise than as provided by law for the proper discharge of
official duty, directly or indirectly asks, demands, exacts, solicits,
seeks, accepts, receives, or agrees to receive anything of value for
himself for or because of any official act performed or to be performed
by him ... [shall be guilty of an offense]."
504 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
it is admitted by the Government that the five
counts of the indictment which charge Senator
Brewster relate to the acceptance of bribes in connection
with the performance of a legislative function
by a Senator of the United States.
"It is the opinion of this Court that the immunity
under the Speech and [sic] Debate Clause of the Constitution,
particularly in view of the interpretation
given that Clause by the Supreme Court in Johnson,
shields Senator Brewster, constitutionally
shields him from any pr-osecution for alleged bribery
to perform a legislative act.
"I will, therefore, dismiss the odd counts of the
indictment, 1, 3, 5, 7 and 9, as they apply to Senator
Brewster."
The United States filed a direct appeal to this
Court, pursuant to 18 U.S. C.§ 3731 (1964 ed., Supp. V).4
We postponed consideration of jurisdiction until hearing
the case on the merits. 401 U. S. 935 (1971).
I
The United States asserts that this Court has jurisdiction
under 18 U. S. C. § 3731 (1964 ed., Supp. V) to
4 Title 18 U. S. C. § 3731 provided in relevant part:
"An appeal may be taken by and on behalf of the United States
from the district courts direct to the Supreme Court of the United
States in all criminal cases in the following instances:
"From a decision or judgment setting aside, or dismissing any indictment
or information, or any count thereof, where such decision
or judgment is based upon the invalidity or construction of the statute
upon which the indictment or information is founded.
"From the decision or judgment sustaining a motion in bar, when
the defendant has not been put in jeopardy."
The statute has since been amended to eliminate the direct appeal
provision on which the United States relies. 18 U. S. C. § 3731.
This appeal, however, was perfected under the old statute.
UNITED STATES v. BREWSTER 505
501 Opinion of the Court
review the District Court's dismissal of the indictment
against appellee. Specifically, the United States urges
that the District Court decision was either "a decision or
judgment setting aside, or dismissing [an] indictment ...
or any count thereof, where such decision or judgment
is based upon the invalidity or construction of the
statute upon which the indictment ... is founded" or
a "decision or judgment sustaining a motion in bar,
when the defendant has not been put in jeopardy."
If the District Court decision is correctly characterized
by either of those descriptions, this Court has jurisdiction
under the statute to hear the United States' appeal.
In United States v. Knox, 396 U. S. 77 (1969), we
considered a direct appeal by the United States from
the dismissal of an indictment that charged the appellee
in that ca.se with violating 18 U. S. C. § 1001, a general
criminal provision punishing fraudulent statements made
to any federal agency. The appellee, Knox, had been
accused of willfully understating the number of employees
accepting wagers on his behalf when he filed
a form that persons engaged in the business of accepting
wagers were required by law to file. The District
Court dismissed the counts charging violations of § 1001
on the ground that the appellee could not be prosecuted
for failure to answer the wagering form correctly since
his Fifth Amendment privilege against self-incrimination
prevented prosecution for failure- to file the form
in any respect. We found jurisdiction under § 3731
to hear the appeal in Knox on the theory that the
District Court had passed on the validity of the statute
on which the indictment rested. 396 U. S., at 79 n. 2.
The District Court in that case held that "§ 1001, as
applied to this class of cases, is constitutionally invalid."
Ibid.
The counts of the indictment involved in the instant
case were based on 18 U. S. C. § 201, a bribery statute.
506 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
Section 201 applies to "public officials," and that term
is defined explicitly to include Members of Congress
as well as other employees and officers of the United
States. Subsections (c)(l) and (g) prohibit the accepting
of a bribe in return for being influenced in or
performing an official act. The ruling of the District
Court here was that "the Speech [or] Debate Clause of
the Constitution, particularly in view of the interpretation
given ... in Johnson, shields Senator Brewster ...
from any prosecution for alleged bribery to perform a
legislative act." Since § 201 applies only to bribery for
the performance of official acts, the District Court's
ruling is that, as applied to Members of Congress, § 201
is constitutionally invalid.
Appellee argues that the action of the District Court
was not "a decision or judgment setting aside, or dismissing"
the indictment, but was instead a summary
judgment on the merits. Appellee also argues that the
District Court did not rule that § 201 could never be
constitutionally applied to a Member of Congress, but
that "based on the facts of this case" the statute could not
be constitutionally applied. Under United States v.
Sisson, 399 U. S. 267 ( 1970), an appeal does not lie
from a decision that rests, not upon the sufficiency of
the indictment alone, but upon extraneous facts. If
an indictment is dismissed as a result of a stipulated
fact or the showing of evidentiary facts outside the
indictment, which facts would constitute a defense on
the merits at trial, no appeal is available. See United
States v. Findley, 439 F. 2d 970 (CAI 1971). Appellee
claims that the District Court relied on factual matter
other than facts alleged in the indictment.
An examination of the record, however, discloses that,
with the exception of a letter in which the United States
briefly outlined the theory of its case against appellee,
there were no "facts" on which the District Court could
UNITED STATES v. BREWSTER 507
501 Opinion of the Court
act other than those recited in the indictment. Appellee
contends that the statement "based on the facts of this
case/' used by the District Judge in announcing his
decision, shows reliance on the Government's outline
of its case. We read the District Judge's reference to
"facts," in context, as a reference to the facts alleged
in the indictment, and his ruling as holding that Members
of Congress are totally immune from prosecution
for accepting bribes for the performance of official, i. e.,
legislative, acts by virtue of the Speech or Debate Clause.
Under that interpretation of § 201, it cannot be applied
to a Member of Congress who accepts bribes that relate
in any way to his office. We conclude, therefore, that
the District Court was relying only on facts alleged
in the indictment and that the dismissal of the indictment
was based on a determination that the statute
on which the indictment was drawn was invalid under
the Speech or Debate Clause. As a consequence, this
Court has jurisdiction to hear the appeal.
II
The immunities of the Speech or Debate Clause were
not written into the Constitution simply for the personal
or private benefit of Members of Congress, but
to protect the integrity of the legislative process by
insuring the independence of individual legislators. The
genesis of the Clause at common law is well known.
In his opinion for the Court in United States v. Johnson,
383 U. S. 169 (1966), Mr. Justice Harlan canvassed
the history of the Clause and concluded that it
"was the culmination of a long struggle for
parliamentary supremacy. Behind these simple
phrases lies a history of conflict between the Commons
and the Tudor and Stuart monarchs during
which successive monarchs utilized the criminal and
civil law to suppress and intimidate critical legisla508
OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
tors. Since the Glorious Revolution in Britain, and
throughout United States history, the privilege has
been recognized as an important protection of the
independence and integrity of the legislature." I d.,
at 178 (footnote omitted).
Although the Speech or Debate Clause's historic roots
are in English history, it must be interpreted in light of
the American experience, and in the context of the
American constitutional scheme of government rather
than the English parliamentary system. We should bear
in mind that the English system differs from ours in that
their Parliament is the supreme authority, not a coordinate
branch. Our speech or debate privilege was
designed to preserve legislative independence, not supremacy.
5 Our task, therefore, is to apply the Clause
in such a way as to insure the independence of the
legislature without altering the historic balance of the
three co-equal branches of Government.
It does not undermine the validity of the Framers'
concern for the independence of the Legislative Branch to
acknowledge that our history does not reflect a catalogue
of abuses at the hands of the Executive that gave rise to
the privilege in England. There is nothing in our history,
for example, comparable to the imprisonment of a Member
of Parliament in the Tower without a hearing and,
owing to the subservience of some royal judges to
the 17th and 18th century English kings, without
meaningful recourse to a writ of habeas corpus.6 In
fact, on only one previous occasion has this Court ever
5 Cella, The Doctrine of Legislative Privilege of Freedom of Speech
and Debate: Its Past, Present and Future as a Bar to Criminal
Prosecutions in the Courts, 2 Suffolk L. Rev. 1, 15 (1968); Note, The
Bribed Congressman's Immunity from Prosecution, 75 Yale L. J.
335, 337-338 (1965).
6 See C. Wittke, The History of English Parliamentary Privilege
23-32 (1921).
UNITED STATES v. BREWSTER 509
501 Opinion of the Court
interpreted the Speech or Debate Clause in the context
of a criminal charge against a Member of Congress.
(a) In United States v. Johnson, supra, the Court reviewed
the conviction of a former Representative on
seven counts of violating the federal conflict-of-interest
statute, 18 U. S. C. § 281 (1964 ed.), and on one count
of conspiracy to defraud the United States, 18 U. S. C.
§ 371. The Court of Appeals had set aside the conviction
on the count for conspiracy to defraud as violating
the Speech or Debate Clause. Mr. Justice Harlan, speaking
for the Court, 383 U. S., at 183, cited the oft-quoted
passage of Mr. Justice Lush in Ex parte Wason, L. R. 4
Q. B. 573 (1869):
"I am clearly of opinion that we ought not to
allow it to be doubted for a moment that the motives
or intentions of members of either House cannot
be inquired into by criminal proceedings with
respect to anything they may do or say in the
House." Id., at 577 ( emphasis added).
In Kilbourn v. Thompson, 103 U. S. 168 (1881), the
first case in which this Court interpreted the Speech
or Debate Clause, the Court expressed a similar view of
the ambit of the American privilege. There the Court
i:;aid the Clause is to be read broadly to include anything
"generally done in a session of the House by one
of its members in relation to the business before it."
Id., at 204. This statement, too, was cited with approval
in Johnson, 383 U. S., at 179. Our conclusion
in Johnson was that the privilege protected Members
from inquiry into legislative acts or the motivation
for actual performance of legislative acts. Id., at 185.
In applying the Speech or Debate Clause, the Court
focused on the specific facts of the Johnson prosecution.
The conspiracy-to-defraud count alleged an
agreement among Representative Johnson and three co510
OCTOBER TER::\I, 1971
Opinion of the Court 408U. S.
defendants to obtain the dismissal of pending indictments
against officials of savings and loan institutions.
For these services, which included a speech made by
Johnson on the House floor, the Government claimed
Johnson was paid a bribe. At trial, the Government
questioned Johnson extensively, relative to the conspiracy-
to-defraud count, concerning the authorship
of the speech, the factual basis for certain statements
made in the speech, and his motives for giving the
speech. The Court held that the use of evidence
of a speech to support a count under a broad conspiracy
statute was prohibited by the Speech or Debate
Clause. The Government ,vas, therefore, precluded from
prosecuting the conspiracy count on retrial, insofar as
it depended on inquiries into speeches made in the House.
It is important to note the very narrow scope of the
Court's holding in Johnson:
"\Ve hold that a prosecution under a general criminal
statute dependent on such inquiries [into the
speech or its preparation] necessarily contravenes
the Speech or Debate Clause. We emphasize that
our holding is limited to prosecutions involving circumstances
such as those presented. in the case
before us." 383 U. S., at 184-185.
The opinion specifically left open the question of a
prosecution which. though possibly entailing some reference
to legislative acts, is founded upon a "narrowly
drawn" statute passed by Congress in the exercise of
its power to regulate its Members' conduct. Of more
relevance to this case, the Court in Johnson emphasized
that its decision did not affect a prosecution that,
though founded on a criminal statute of general application,
"does not draw in question the legislative acts
of the defendant member of Congress or his motives
for performing them." Id., at 185. The Court did not
UNITED STATES v. BREWSTER 511
501 Opinion of the Court
question the power of the United States to try Johnson
on the conflict-of-interest counts, and it authorized a
new trial on the conspiracy count, provided that all references
to the making of the speech were eliminated.1
Three members of the Court would have affirmed
Johnson's conviction. Mr. Chief Justice Warren, joined
by MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN,
concurring in part and dissenting in part, stated:
"After reading the record, it is my conclusion
that the Court of Appeals erred in determining
that the evidence concerning the speech infected
the jury's judgment on the [conflict-of-interest]
counts. The evidence amply supports the prosecution's
theory and the jury's verdict on these countsthat
the respondent received over $20,000 for attempting
to have the Justice Department dismiss
an indictment against his [present] co-conspirators,
without disclosing his role in the enterprise. This
is the classic example of a violation of § 281 by a
Member of the Congress. . . . The arguments of
government counsel and the court's instructions
separating the conspiracy from the substantive
counts seem unimpeachable. The speech was a
minor part of the prosecution. There was nothing
in it to inflame the jury and the respondent
pointed with pride to it as evidence of his
vigilance in protecting the financial institutions of
his State. The record further reveals that the
trial participants were well aware that a finding
of criminality on one count did not authorize sim-
7 On remand, the District Court dismissed the conspiracy count
without objection from the Government. Johnson was then found
guilty on the remaining counts, and his conviction was affirmed.
United States v. Johnson, 419 F. 2d 56 (CA4 1969), cert. denied,
397 U. S. 1010 (1970).
512 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
ilar conclusions as to other counts, and I believe
that this salutary principle was conscientiously followed.
Therefore, I would affirm the convictions on
the substantive counts." I d., at 188-189. (Footnote
omitted.)
Johnson thus stands as a unanimous holding that a
Member of Congress may be prosecuted under a criminal
statute provided that the Government's case does not
rely on legislative acts or the motivation for legislative
acts. A legislative act has consistently been defined as
an act generally done in Congress in relation to the
business before it. In sum, the Speech or Debate Clause
prohibits inquiry only into those things generally said or
done in the House or the Senate in the performance of
official duties and into the motivation for those acts.
It is well known, of course, that Members of the Congress
engage in many activities other than the purely
legislative activities protected by the Speech or Debate
Clause. These include a wide range of legitimate
"errands" performed for constituents, the making
of appointments with Government agencies, assistance in
securing Government contracts, preparing so-called "news
letters" to constituents, news releases, and speeches delivered
outside the Congress. The range of these related
activities has grown over the years. They are performed
in part because they have come to be expected by constituents,
and because they are a means of developing
continuing support for future elections. Although these
are entirely legitimate activities, they are political in
nature rather than legislative, in the sense that term has
been used by the Court in prior cases. But it has never
been seriously contended that these political matters,
however appropriate, have the protection afforded by the
Speech or Debate Clause. Careful examination of the
decided cases reveals that the Court has regarded the protection
as reaching only those things "generally done in a
UNITED STATES v. BREWSTER 513
501 Opinion of the Court
session of the House by one of its members in relation
to the business before it," Kilbourn v. Thompson, supra,
at 204, or things "said or done by him, as a representative,
in the exercise of the functions of that office/' Coffin
v. Coffin, 4 Mass. 1, 27 (1808).
(b) Appellee argues, however, that in Johnson we expressed
a broader test for the coverage of the Speech or
Debate Clause. It is urged that we held that the Clause
protected from executive or judicial inquiry all conduct
"related to the due functioning of the legislative process."
It is true that the quoted words appear in the
Johnson opinion, but appellee takes them out of context;
in context they reflect a quite different meaning
from that, now urged. Although the indictment against
Johnson contained eight counts, only one count was
challenged before this Court as in violation of the Speech
or Debate Clause. The other seven counts concerned
Johnson's attempts to influence staff members of the Justice
Department to dismiss pending prosecutions. In explaining
why those counts were not before the Court,
Mr. Justice Harlan wrote:
11No argument is made, nor do we think that it
could be successfully contended, that the Speech or
Debate Clause reaches oonduct, such as was involved
in the attempt to influence the Department
of Justice, that is in no wise related to the due
functioning of the legis1.ative process. It is the
application of this broad conspiracy statute to an
improperly motivated speech that raises the constitutional
problem with which we deal." 383 U. S.,
at 172. (Emphasis added; footnote omitted.)
In stating that those things "in no wise related to
the due functioning of the legislative process" were not
covered by the privilege, the Court did not in any sense
imply as a corollary that everything that "related" to the
514 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
office of a Member was shielded by the Clause. Quite
the contrary, in Johnson we held, citing Kilbourn v.
Thompson, supra, that only acts generally done in the
course of the process of enacting legislation were protected.
Nor can we give Kilbourn a more expansive interpretation.
In citing with approval, 103 U. S., at 203, the
language of Chief Justice Parsons of the Supreme Judicial
Court of Massachusetts in Coffin v. Coffin, 4 Mass. 1
(1808), the Kilbourn Court gave no thought to enlarging
"legislative acts" to include illicit conduct outside the
House. The Coffin language is:
"[The Massachusetts legislative privilege] ought
not to be construed strictly, but liberally, that the
full design of it may be answered. I will not confine
it to delivering an opinion, uttering a speech,
or haranguing in debate; but will extend it to the
giving of a vote, to the making of a written report,
and to every other act resulting from the
nature, and in the execution, of the office: and I
would define the article, as securing to every member
exemption from prosecution, for every thing said
or done by him, as a representative, in the exerci.se
of the functions of that office without enquiring
whether the exercise was regular according to the
rules of the house, or irregular and against their
rules. I do not confine the member to his place
in the house; and I am satisfied that there are
cases, in which he is entitled to this privilege, when
not within the walls of the representatives' chamber."
Id., at 27 (emphasis added).
It is suggested that in citing these words, which were
also quoted with approval in Tenney v. Brandhove, 341
U. S. 367, 373~374 (1951), the Court was interpreting
the sweep of the Speech or Debate Clause to be broader
than Johnson seemed to indicate or than we today hold.
Emphasis is placed on the statement that "there are
UNITED STATES v. BREWSTER 515
501 Opinion of the Court
cases in which [a Member] is entitled to this privilege,
when not within the walls of the representatives' chamber."
But the context of Coffin v. Coffin indicates that
in this passage Chief Justice Parsons was referring only
to legislative acts, such as committee meetings, which
take place outside the physical confines of the legislative
chamber. In another passage, the meaning is clarified:
"If a member ... be out of the chamber, S!tting in
committee, executing the commission of the house,
it appears to me that such member is within the
reason of the article, and ought to be considered
within the privilege. The body of which he is a
member, is in session, and he, as a member of that
body, is in fact discharging the duties of his office.
He ought therefore to be protected from civil or
criminal prosecutions for every thing said or done
by him in the exercise of his functions, as a representative
in committee, either in debating, in assenting
to, or in draughting a report." 8 4 Mass.,
at 28.
In no case has this Court ever treated the Clause as
protecting all conduct relating to the legislative process.9
In every case thus far before this Court, the Speech
or Debate Clause has been limited to an act which was
8 It is especially important to note that in Coffin v. Coffin, the court
concluded that the defendant was not executing the duties of his
office when he allegedly defamed the plaintiff and was hence mit
entitled to the claim of privilege.
9 The "concession" MR. JusTICE BRENNAN seeks to attribute to
the Government lawyer who argued the case in the District Court
reveals no more than the failure of the arguments in that court to
focus on the distinction between true legislative acts and the myriad
related political functions of a Member of Congress. The "concession"
came in response to a question clearly revealing that the
District Court treated as protected all acts "related" to the office
rather than limiting the protection to what is "said or done by him,
as a representative, in the exercise of the functions of that office."
516 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
clearly a part of the legislative process-the due functioning
of the process.10 Appellee's contention for a
broader interpretation of the privilege draws essentially
on the flavor of the rhetoric and the sweep of the language
used by courts, not on the precise words used in
any prior case, and surely not on the sense of those
cases, fairly read.
( c) We would not think it sound or wise, simply out
of an abundance of caution to doubly insure legislative independence,
to extend the privilege beyond its intended
scope, its literal language, and its history, to include all
things in any way related to the legislative process.
Given such a sweeping reading, we have no doubt that
there are few activities in which a legislator engages that
he would be unable somehow to "relate" to the legislative
process. Admittedly, the Speech or Debate Clause
must be read broadly to effectuate its purpose of protecting
the independence of the Legislative Branch, but
no more than the statutes we apply, was its purpose to
make Members of Congress super-citizens, immune from
criminal responsibility. In its narrowest scope, the
Clause is a very large, albeit essential, grant of privilege.
It has enabled reckless men to slander and even destroy
others with impunity, but that was the conscious choice
of the Framers.11
10 See Kilbourn v. Thompson, 103 U. S. 168 (1881) (voting for a
resolution); Tenney v. Brandhove, 341 U. S. 367 (1951) (harassment
of witness by state 11:'gislator during a legislative hearing; not a
Speech or Debate Clause case); United States v. Johnson, 383 U. S.
169 (1966) (making a speech on House floor); Dombrowski v.
Eastland, 387 U. S. 82 (1967) (subpoenaing records for committee
hearing); Powell v, McCormack, 395 U. 8, 486 (1969) (voting for
a resolution).
In Coffin v. Coffin, 4 Mass. 1 ( 1808), the state equivalent of the
Speech or Debate Clause was held to be inapplicable to a legislator
who was acting outside of his official duties.
11 "To this construction of the article it is objected, that a private
citizen may have his character basely defamed, without any pecuniary
UNITED STATES v. BREWSTER 517
501 OJJinion of the Court
The history of the privilege is by no means free from
grave abuses by legislators. In one instance, 1,buses
reached such a level in England that Parliament was
compelled to enact curative legislation.
"The practice of granting the privilege of freedom
from arrest and molestation to members' servants
in time became a serious menace to individual liberty
and to public order, and a form of protection
by which offenders of ten tried-and they were often
successful-to escape the penalties which their offences
deserved and which the ordinary courts would
not have hesitated to inflict. Indeed, the sale of
'protections' at one time proved a source of income
to unscrupulous members, and these parliamentary
'indulgences' were on several occasions obtainable
at a fixed market price." C. Wittke, The History
of English Parliamentary Privilege 39 (1921).
The authors of our Constitution were well aware of
the history of both the need for the privilege and the
abuses that could flow from too sweeping safeguards.
In order to preserve other values, they wrote the privilege
so that it tolerates and protects behavior on the
part of Members not tolerated and protected when done
by other citizens, but the shield does not extend beyond
what is necessary to preserve the integrity of the legislative
process. Moreover, unlike England with no
formal, written constitutional limitations on the monarch,
we defined limits on the co-ordinate branches, prorecompense
or satisfaction. The truth of the objection is admitted.
. . . The injury to the reputation of a private citizen is
of less importance to the commonwealth, than the free and unreserved
exercise of the duties of a representative, unawed by the
fear of legal prosecutions." Coffin v. Coffin, 4 Mass., at 28.
See Cochran v. Couzens, 59 App. D. C. 374, 42 F. 2d 783, cert.
denied, 282 U. S. 874 (1930) (defamatory words uttered on Senate
floor could not be basis of slander action}.
518 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
viding other checks to protect against abuses of the kind
experienced in that country.
It is also suggested that, even if we interpreted the
Clause broadly so as to exempt from inquiry all matters
having any relationship to the legislative process, misconduct
of Members would not necessarily go unpunished
because each House is empowered to discipline its Members.
Article I, § 5, does indeed empower each House to
"determine the Rules of its Proceedings, punish its Members
for disorderly Behavior, and, with the Concurrence of
two thirds, expel a Member," but Congress is ill-equipped
to investigate, try, and punish its Members for a wide
range of behavior that is loosely and incidentally related
to the legislative process. In this sense, the English
analogy on which the dissents place much emphasis, and
the reliance on Ex parte Wason, L. R. 4 Q. B. 573
(1869), are inapt. Parliament is itself "The High Court
of Parliament"-the highest court in the land- and its
judicial tradition better equips it for judicial tasks.
"It is by no means an exaggeration to say that [ the
judicial characteristics of Parliament] colored and
influenced some of the great struggles over [legislative
1 privilege in and out of Parliament to the very
close of the nineteenth century. It is not altogether
certain whether they have been entirely forgotten
even now. Now here has the theory that Parliament
is a court- the highest court of the realm, often
acting in a judicial capacity and in a judicial manner-
persisted longer than in the history of privilege
of Parliament." Wittke, supra, at 14.
The very fact of the supremacy of Parliament as England's
highest tribunal explains the long tradition precluding
trial for official misconduct of a member in any
other and lesser tribunal.
In Australia and Canada, "where provision for legislaUNITED
STATES v. BREWSTER 519
501 Opinion of the Court
tive free speech or debate exists but where the legislature
may not claim a tradition as the highest court of the
realm, courts have held that the privilege does not bar
the criminal prosecution of legislators for bribery." Note,
The Bribed Congressman's Immunity from Prosecution,
75 Yale L. J. 335, 338 (1965) (footnote omitted). Congress
has shown little inclination to exert itself in this
area. 12 Moreover, if Congress did lay aside its normal
activities and take on itself the responsibility to police
and prosecute the myriad activities of its Members related
to but not directly a part of the legislative function,
the independence of individual Members might actually
be impaired.
The process of disciplining a Member in the Congress
is not without countervailing risks of abuse since
it is not surrounded with the panoply of protective
shields that are present in a criminal case. An
accused Member is judged by no specifically articulated
standards 13 and is at the mercy of an almost unbridled
discretion of the charging body that functions
at once as accuser, prosecutor, judge, and jury from
whose decision there is no established right of review.
In short, a Member would be compelled to defend in what
would be comparable to a criminal prosecution without
the safeguards provided by the Constitution. Moreover,
it would be somewhat naive to assume that the triers
would be wholly objective and free from considerations
12 See Thomas, Freedom of Debate: Protector of the People or
Haven for the Criminal?, 3 The Harvard Rev. 74, 80-81 (No. 3,
1965); Note, The Bribed Congressman's Immunity from Prosecution,
75 Yale L. J. 335, 349 n . 84 (1965); Oppenheim, Congressional Free
Speech, 8 Loyola L. Rev. 1, 27-28 (1955--1956).
Js See, e. g., In re Chapman, 166 U.S. 661, 669~670 (1897):
"The right to expel extends to all cases where the offence is such
as in the judgmcnt of the Senate is inconsistent with the trust and
duty of a member."
520 OCTOBER TERM, 1971
Opinion of thC' Court 408U.S.
of party and politics and the passions of the moment.14
Strong arguments can be made that trials conducted
in a Congress with an entrenched majority from one
political party could result in far greater harassment
than a conventional criminal trial with the wide range
of procedural protections for the accused, including indictment
by grand jury, trial by jury under strict standards
of proof with fixed rules of evidence, and extensive
appellate review.
Finally, the jurisdiction of Congress to punish its
Members is not all-embracing. For instance, it is unclear
to what extent Congress would have jurisdiction
over a case such as this in which the alleged illegal
activity occurred outside the chamber, while the a.ppellee
was a Member, but was undiscovered or not brought
before a grand jury until after he left office.15
The sweeping claims of appellee would render Members
of Congress virtually immune from a wide range
of crimes simply because the acts in question were
peripherally related to their holding office. Such claims
are inconsistent with the reading this Court has given, not
only to the Speech or Debate Clause, but also to the
other legislative privileges embodied in Art. I. § 6. The
very sentence in which the Speech or Debate Clause
appears provides that Members "shall in all Cases, exa
See the account of the impeachment of President Andrew
Johnson in J. Kennedy, Profiles in Courage 126-151 (1955). See
also the account of the impeachment of Mr. Justice Samuel Chase in
3 A. Beveridge, The Life of John Marshall 169-220 (1919).
u" . Engfoih Parliaments have historically reserved to themselves
and still retain the sole and exclusive right to punish their members
for the acceptance of a bribe in the discharge of their office. No
member of Parliament may be tried for such an offense in any court
of the land." Cella, supra, n. 5, at 15-16. That this is obviously
not the case in this country is implicit in thr remand of Representative
Johnson to be retried on bribery charges.
UNITED STATES v. BREWSTER 521
501 Opinion of the Court
cept Treason, Felony and Breach of the Peace, be privileged
from Arrest during their Attendance at the Session
of their Respective Houses . . . . " In Williamson v.
United States, 207 U.S. 425 (1908), this Court rejected
a claim, made by a Member convicted of subornation of
perjury in proceedings for the purchase of public lands,
that he could not be arrested, convicted, or imprisoned
for any crime that was not treason, felony, or breach
of the peace in the modern sense, i. e., disturbing the
peace. Mr. Justice Edward Douglass White noted that
when the Constitution was written the term "breach of
the peace" did not mean, as it came to mean later, a misdemeanor
such as disorderly conduct but had a different
18th century usage, since it derived from breaching the
King's peace and thus embraced the whole range of crimes
at common law. Quoting Lord Mansfield, he noted, with
respect to the claim of parliamentary privilege, " [ t]he
laws of this country allow no place or employment as a
sanctuary for crime .... " I d., at 439.
The subsequent case of Long v. Ansell, 293 U. S. 76
( 1934), held that a Member's immunity from arrest
in civil cases did not extend to civil process. Mr. Justice
Brandeis wrote for the Court:
"Clause 1 [ of Art. I, § 6] defines the extent of the
immunity. Its language is exact and leaves no room
for a construction which would extend the privilege
beyond the terms of the grant." I d., at 82.
We recognize that the privilege against arrest is not
identical with the Speech or Debate privilege, but it
is closely related in purpose and origin. It can hardly
be thought that the Speech or Debate Clause totally protects
what the sentence preceding it has plainly left open
to prosecution, i. e., all criminal acts.
(d) MR. JusTICE WHITE suggests that permitting the
Executive to initiate the prosecution of a Member of Con522
OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
gress for the specific crime of bribery is subject to serious
potential abuse that might endanger the independence
of the legislature-for example, a campaign contribution
might be twisted by a ruthless prosecutor into a bribery
indictment. But, as we have just noted, the Executive
is not alone in possessing power potentially subject to
abuse; such possibilities are inherent in a system of
government that delegates to each of the three branches
separate and independent powers.16 In The Federalist
16 The potential for harassment by an unscrupulous member of
the Executive Branch may exist, but this country has no tradition
of absolute congressional immunity from criminal prosecution. See
United States v. Quinn, 141 F. Supp. 622 (SDNY 1956) (motion for
acquittal granted because the defendant Member of Congress was
unaware of receipt of fees by his law firm); Burton v. United States,
202 U. S. 344 (1906) (Senator convicted for accepting compensation
to intervene before Post Office Department); United States v. Dietrich,
126 F. 671 (CC Neb. 1904) (Senator-elect's accepting payment
to procure office for another not covered by statute); May v.
United States, 84 U. S. App. D. C. 233, 175 F. 2d 994, cert. denied,
338 U. S. 830 (1949) (Congressman convicted of receiving compensation
for services before an agency); United States v. Bramblett,
348 U. S. 503 (1955) (Congressman convicted of defrauding government
agency). Bramblett concerned a Congressman's misuse of office
funds via a "kick-back" scheme, which is surely "related" to
the legislative office.
A strategically timed indictment could indeed cause serious harm
to a Congressman. Representative Johnson, for example, was indicted
while campaigning for re-election, and arguably his indictment
contributed to his defeat. On the other hand, there is the
classic case of Mayor Curley who was re-elected while under indictment.
See N. Y. Times, Nov. 8, 1945, p. 12, col. 5; 4 New
Catholic Encyclopedia 541 (1967). Moreover, we should not overlook
the barriers a prosecutor, attempting to bring such a case,
must face. First, he must persuade a grand jury to indict, and
we are not prepared to assume that grand juries will act against
a Member without solid evidence. Thereafter, he must convince
a petit jury beyond a reasonable doubt, with the presumption of
innocence favoring the accused. A prosecutor who fails to clear
one of these hurdles faces serious practical consequences when
the defendant is a Congressman. The Legislative Branch is not
UNITED STATES v. BREWSTER 523
501 Opinion of the Court
No. 73, Hamilton expressed concern over the possible
hazards that confronted an Executive dependent on Congress
for financial support.
"The Legislature, with a discretionary power over
the salary and emoluments of the Chief Magistrate,
could render him as obsequious to their will as
they might think proper to make him. They might,
in most cases, either reduce him by famine, or
tempt him by largesses, to surrender at discretion
his judgment to their inclinations."
Yet Hamilton's "parade of horribles" finds little real
support in history. The check-and-balance mechanism,
buttressed by unfettered debate in an open society with
a free press, has not encouraged abuses of power or tolerated
them long when they arose. This may be explained
in part because the third branch has intervened with
neutral authority. See, e. g., United States v. Lovett,
328 U.S. 303 (1946). The system of divided powers was
expressly designed to check the abuses England experienced
in the 16th to the 18th centuries.
Probably of more importance is the public reaction
engendered by any attempt of one branch to dominate
or harass another. Even traditional political attempts to
establish dominance have met with little success owing
to contrary popular sentiment. Attempts to "purge"
uncooperative legislators, for example, have not been
notably successful. \Ve are not cited to any cases
in which the bribery statutes, which have been applicable
to Members of Congress for over 100 years,1 7
without weapons of its own and would no doubt use them if it
thought the Executive were unjustly harassing one of its members.
Perhaps more important is the omnipresence of the news media
whose traditional function and competitive inclination afford no
immunities to reckless or irresponsible official misconduct.
17 The first bribery statute applicable to Congressmen was enacted
in 1853. Act of Feb. 26, 1853, c. 81, § 6, 10 Stat. 171.
524 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
have been abused by the Executive Branch. When a
powerful Executive sought to make the Judicial Branch
more responsive to the combined will of the Executive
and Legislative Branches, it was the Congress itself that
checked the effort to enlarge the Court. 2 M. Pusey,
Charles Evans Hughes 749-765 (1951).
We would be closing our eyes to the realities of the
American political system if we failed to acknowledge
that many non-legislative activities are an established
and accepted part of the role of a Member, and are
indeed "related" to the legislative process. But if the
Executive may prosecute a Member's attempt, as in
Johnson, to influence another branch of the Government
in return for a bribe, its power to harass is not greatly
enhanced if it can prosecute for a promise relating to a
legislative act in return for a bribe. We therefore see no
substantial increase in the power of the Executive and
Judicial Branches over the Legislative Branch resulting
from our holding today. If we underestimate the potential
for harassment, the Congress, of course, is free
to exempt its Members from the ambit of federal bribery
laws, but it has deliberately allowed the instant statute
to remain on the books for over a century.
We do not discount entirely the possibility that
an abuse might occur, but this possibility, which we
consider remote, must be balanced against the potential
danger flowing from either the absence of a
bribery statute applicable to Members of Congress or
a holding that the statute violates the Constitution.
As we noted at the outset, the purpose of the Speech
or Debate Clause is to protect the individual legislator,
not simply for his own sake, but to preserve the independence
and thereby the integrity of the legislative
process. But financial abuses by way of bribes, perhaps
even more than Executive power, would gravely undermine
legislative integrity and defeat the right of the
UNITED ST ATES v. BREWSTER 525
501 Opinion of the Court
public to honest representation. Depriving the Executive
of the power to investigate and prosecute and the
Judiciary of the power to punish bribery of Members of
Congress is unlikely to enhance legislative independence.
Given the disinclination and limitations of each House
to police these matters, it is understandable that both
Houses deliberately delegated this function to the courts,
as they did with the power to punish persons committing
contempts of Congress. 2 U. S. C. § 194.
It is beyond doubt that the Speech or Debate
Clause protects against inquiry into acts that occur
in the regular course of the legislative process and into
the motivation for those acts. So expressed, the privilege
is broad enough to insure the historic independence
of the Legislative Branch, essential to our separation
of powers, but narrow enough to guard against the
excesses of those who would c01Tupt the process by
corrupting its Members. We turn next to determine
whether the subject of this criminal inquiry is within
the scope of the privilege.
III
An examination of the indictment brought against
appellee and the statutes on which it is founded reveals
that no inquiry into legislative acts or motivation
for legislative acts is necessary for the Government to
make out a prima facie case. Four of the five counts
charge that appellee "corruptly asked, solicited, sought,
accepted, received and agreed to receive" money "in
return for being influenced ... in respect to his action,
vote, and decision on postage rate legislation which
might at any time be pending before him in his official
capacity." This is said to be a violation of 18 U. S. C.
§ 201 ( c), which provides that a Member who "corruptly
asks, demands, exacts, solicits, seeks, accepts, receives,
or agrees to receive anything of value ... in
526 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
return for . . . ( 1) being influenced in his performance
of any official act" is guilty of an offense.
The question is whether it is necessary to inquire into
how appellee spoke, how he debated, how he voted, or
anything he did in the chamber or in committee in order
to make out a violation of this statute. The illegal conduct
is taking or agreeing to take money for a promise
to act in a certain way. There is no need for the Government
to show that appellee fulfilled the alleged illegal
bargain; acceptance of the bribe is the violation of the
statute, not performance of the illegal promise.
Taking a bribe is, obviously, no part of the legislative
process or function; it is not a legislative act. It is
not, by any conceivable interpretation, an act performed
as a part of or even incidental to the role of a legislator.
It is not an "act resulting from the nature, and in the
execution, of the office." Nor is it a "thing said or done by
him, as a representative, in the exercise of the functions of
that office," 4 Mass., at 27. Nor is inquiry into a legislative
act or the motivation for a legislative act necessary to
a prosecution under this statute or this indictment. When
a bribe is taken, it does not matter whether the promise
for which the bribe was given was for the performance of
a legislative act as here or, as in Johnson, for use of a
Congressman's influence with the Executive Branch.
And an inquiry into the purpose of a bribe "does not
draw in question the legislative acts of the defendant
member of Congress or his motives for performing them."
383 U. S., at 185.
Nor does it matter if the Member defaults on his illegal
bargain. To make a prima facie case under this indictment,
the Government need not show any act of appellee
subsequent to the corrupt promise for payment, for it is
taking the bribe, not performance of the illicit compact,
that is a criminal act. If, for example, there were undisputed
evidence that a Member took a bribe in exchange
UNITED STATES v. BREWSTER 527
501 Opinion of the Court
for an agreement to vote for a given bill and if there were
also undisputed evidence that he, in fact, voted against
the bill, can it be thought that this alters the nature of the
bribery or removes it from the area of wrongdoing the
Congress sought to make a crime?
· Another count of the indictment against appellee alleges
that he "asked, demanded, exacted, solicited,
sought, accepted, received and agreed to receive" money
"for and because of official acts performed by him in
respect to his action, vote and decision on postage rate
legislation which had been pending before him in his official
capacity .... " This count is founded on 18 U.S. C.
§ 201 (g), which provides that a Member of Congress
who "asks, demands, exacts, solicits, seeks, accepts, receives,
or agrees to receive anything of value for himself
for or because of any official act performed or to be
performed by him" is guilty of an offense. Although
the indictment alleges that the bribe was given for an
act that was actually performed, it is, once again, unnecessary
to inquire into the act or its motivation. To
sustain a conviction it is necessary to show that appellee
solicited, received, or agreed to receive, money with
knowledge that the donor was paying him compensation
for an official act. Inquiry into the legislative performance
itself is not necessary; evidence of the Member's
knowledge of the alleged briber's illicit reasons for
paying the money is sufficient t.o carry the case to the
Jury.
MR. JusTICE WHITE rests heavily on the fact that the
indictment charges the off ense as being in part linked to
Brewster's "action, vote and decision on postage rate legislation."
This is true, of course, but our holding in Johnson
precludes any shmving of how he acted, voted, or
decided. The dissenting position stands on the fragile
proposition that it "would take the Government at its
word" with respect to wanting to prove what we all agree
528 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
are protected acts that cannot be shown in evidence.
Perhaps the Government would make a more appealing
case if it could do so, but here, as in that case, evidence
of acts protected by the Clause is inadmissible. The
Government, as we have noted, need not prove any specific
act, speech, debate, or decision to establish a violation
of the statute under which appellee was indicted.
To accept the arguments of the dissent would be to retreat
from the Court's position in Johnson that a Member
may be convicted if no showing of legislative act is
required.
MR. JUSTICE BRENNAN suggests that inquiry into the
alleged bribe is inquiry into the motivation for a legislative
act, and it is urged that this very inquiry was condemned
as impermissible in Johnson. That argument misconstrues
the concept of motivation for legislative acts.
The Speech or Debate Clause does not prohibit inquiry
into illegal conduct simply because it has some nexus
to legislative functions. In Johnson, the Court held
that, on remand, Johnson could be retried on the conspiracy-
to-defraud count, so long as evidence concerning
his speech on the House floor was not admitted. The
Court's opinion plainly implies that had the Government
chosen to retry Johnson on that count, he could not have
obtained immunity from prosecution by asserting that
the matter being inquired into was related to the motivation
for his House speech. See n. 7, supra.
The only reasonable reading of the Clause, consistent
with its history and purpose, is that it does not prohibit
inquiry into activities that are casually or incidentally
related to legislative affairs but not a part of
the legislative process itself. Under this indictment and
these statutes no such proof is needed.
We hold that under these statutes and this indictment,
prosecution of appellee is not prohibited by the Speech
UNITED STATES v. BREWSTER 529
501 BRENNAN, J., dissenting
or Debate Clause.18 Accordingly, the judgment of the
District Court is reversed and the case is remanded for
further proceedings consistent with this opinion.
Reversed and remanded.
MR. JusTICE BRENNAN, with whom MR. JusTICE
DouGLAS joins, dissenting.
When this case first came before the Court, I had
thought it presented a single, well-defined issue-that is,
whether the Congress could authorize by a narrowly
drawn statute the prosecution of a Senator or Representative
for conduct otherwise immune from prosecution
under the Speech or Debate Clause of the Constitution.
Counts 1, 3, 5, and 7 of the indictment charged
Senator Brewster with receiving $19,000 "in return for
being influenced in his performance of official acts in
respect to his action, vote, and decision on postage rate
legislation which might at any time be pending before
him in his official capacity [as a member of the Senate
Post Office Committee]." Count 9 charged the Senator
with receipt of another $5,000 for acts already performed
by him with respect to his "action, vote and decision"
on that legislation. These charges, it seemed to me, fell
within the clear prohibition of the Speech or Debate
Clause as interpreted by decisions of this Court, particularly
United States v. Johnson, 383 U.S. 169 (1966).
18 In reversing the District Court's ruling that a Member of Congress
may not be constitutionally tried for a violation of the federal
bribery statutes, we express no views on the question left open in
Johnson as to the constitutionality of an inquiry that probes into
legislative acts or the motivation for legislative acts if Congress
specifically authorizes such in a narrowly drawn statute. Should
such an inquiry be made and should a conviction be sustained, then
we would face the question whether inquiry into legislative acts and
motivation is permissible under such a narrowly drawn statute.
530 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 u. s.
For if the indictment did not call into question the
"speeches or debates" of the Senator, it certainly laid
open to scrutiny the motives for his legislative acts;
and those motives, I had supposed, were no more subject
to executive and judicial inquiry than the acts
themselves, unless, of course, the Congress could delegate
such inquiry to the other branches.
That, apparently, was the Government's view of the
case as well. At the hearing before the District Court
the prosecutor was asked point blank whether "the indictment
in any wise allege [ d] that Brewster did anything
not related to his purely legislative functions."
The prosecutor responded:
"We are not contending that what is being charged
here, that is, the activity by Brewster, was anything
other than a legislative act. We are not
ducking the question; it is squarely presented. They
are legislative acts. We are not going to quibble
over that." App. 28.
The Government, in other words, did not challenge the
applicability of the Clause to these charges, but argued
only that its prohibitions could be avoided, '\vaived" as
it were, through congressional authorization in the form
of a narrowly drawn bribery statute. The District Court
accepted the Government's reading of the indictment
and held that the Senator could not be prosecuted for
this conduct even under the allegedly narrow provisions
of 18 U. S. C. § 201:
"Gentlemen, based on the facts of this case, it is
admitted by the Government that the five counts
of the indictment which charge Senator Brewster
relate to the acceptance of bribes in connection
with the performance of a legislative function by
a Senator of the United States.
501
UNITED STATES v. BREWSTER 531
BRENNAN, J., dissenting
"It is the opinion of this Court that the immunity
under the Speech and Debate Clause
of the Constitution, particularly in view of the
interpretation given that Clause by the Supreme
Court in Johnson, shields Senator Brewster, constitutionally
shields him from any prosecution
for alleged bribery to perform a legislative act."
App. 33.
Furthermore, the Government's initial brief in this
Court, doubtless reflecting its recognition that Johnson
had rejected the analysis adopted by the Court today,
did not argue that a prosecution for acceptance of a
bribe in return for a promise to vote a certain way falls
outside the prohibition of the Speech or Debate Clause.
Rather, the Government's brief conceded or at least
assumed that such conduct does constitute "Speech or
Debate," but urged that Congress may enact a statute,
such as 18 U. S. C. § 201, providing for judicial trial of
the alleged crime.
Given these admissions by the Government and the
District Court's construction of the indictment, which
settled doctrine makes binding on this Court, United
States v. Jones, 345 U. S. 377, 378 (1953), the only
issue properly before us was whether Congress is empowered
to delegate to the Executive and Judicial Branches
the trial of a member for conduct otherwise protected
by the Clause. Today, however, the Court finds it unnecessary
to reach that issue, for it finds that the indictment,
though charging receipt of a bribe for legislative
acts, entails "no inquiry into legislative acts or motivation
for legislative acts," ante, at 525, and thus is not
covered by the Clause. In doing so the Court permits
the Government to recede from its firm admissions, it
ignores the District Court's binding construction of the
532 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
indictment, and-most important--it repudiates principles
of legislative freedom developed over the past
century in a line of cases culminating in Johnson. Those
principles, which are vital to the right of the people
to be represented by Congressmen of independence and
integrity, deserve more than the hasty burial given them
by the Court today. I must therefore dissent.
I
I would dispel at the outset any notion that Senator
Brewster's asserted immunity strains the outer limits
of the Clause. The Court writes at length in an effort
to show that "Speech or Debate" does not cover "all
conduct relating to the legislative process." Ante, at
515. Even assuming the validity of that conclusion, I
fail to see its relevance to the instant case. Senator
Brewster is not charged with conduct merely "relating
to the legislative process," but with a crime whose proof
calls into question the very motives behind his legislative
acts. The indictment, then, lies not at the periphery
but at the very center of the protection that this Court
has said is provided a Congressman under the Clause.
Decisions of this Court dating as far back as 1881
have consistently refused to limit the concept of "legislative
acts" to the "Speech or Debate" specifically mentioned
in Art. I, § 6. In Kilbourn v. Thompson, 103
U.S. 168 (1881), the Court held that:
"It would be a narrow view of the constitutional
provision to limit it to words spoken in debate. The
reason of the rule is as forcible in its application to
written reports presented in that body by its committees,
to resolutions offered, which, though in
writing, must be reproduced in speech, and to the
act of voting, whether it is done vocally or by passing
between the tellers. In short, to things generally
501
UNITED STATES v. BREWSTER 533
BRENNAN, J., dissenting
done in a session of the House by one of its members
in relation to the business before it." Id., at 204.
In reaching its conclusion, the Court adopted what was
said by the Supreme Judicial Court of Massachusetts in
Coffin v. Coffin, 4 Mass. 1 ( 1808), which Kilbourn held to
be perhaps "the most authoritative case in this country on
the construction of the provision in regard to freedom of
debate in legislative bodies . . .. " 103 U. S., at 204.
Chief Justice Parsons, speaking for the Massachusetts
court, expressed what Kilbourn and later decisions saw
as a properly generous view of the legislative privilege:
"These privileges are thus secured, not with the intention
of protecting the members against prosecutions
for their own benefit, but to support the rights
of the people, by enabling their representatives to
execute the functions of their office without fear of
prosecutions, civil or criminal. I therefore think
that the article ought not to be construed strictly,
but liberally, that the full design of it may be answered.
I will not confine it to delivering an opinion,
uttering a speech, or haranguing in debate; but
will extend it to the giving of a vote, to the making
of a written report, and to every other act resulting
from the nature, and in the execution, of the office:
and I would define the article, as securing to every
member exemption from prosecution, for every thing
said or done by him, as a representative, in the exercise
of the functions of that office; without enquiring
whether the exercise was regular according to the
rules of the house, or irregular and against their
rules. I do not confine the member to his place
in the house; and I am satisfied that there are cases,
in which he is entitled to this privilege, when not
within the walls of the representatives' chamber."
4 Mass., at 27.
534 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
There can be no doubt, therefore, that Senator Brewster's
vote on new postal rates constituted legislative
activity within the meaning of the Clause. The Senator
could not be prosecuted or called to answer for his
vote in any judicial or executive proceeding. But the
Senator's immunity, I submit, goes beyond the vote
itself and precludes all extra-congressional scrutiny as
to how and why he cast, or would have cast, his vote
a certain way. In Tenney v. Brandhove, 341 U. S. 367
(1951), the plaintiff charged that a state legislative
hearing was being conducted not for a proper legislative
purpose but solely as a means of harassing him.
Nevertheless the Court held that no action would lie
against the committee members under federal civil rights
statutes. Mr. Justice Frankfurter stated:
"The claim of an unworthy purpose does not
destroy the privilege. Legislators are immune from
deterrents to the uninhibited discharge of their
legislative duty, not for their private indulgence but
for the public good. One must not expect uncommon
courage even in legislators. The privilege would
be of little value if they could be subjected to the
cost and inconvenience and distractions of a trial
upon a conclusion of the pleader, or to the hazard
of a judgment against them based upon a jury's
speculation as to motives. The holding of this
Court in Fletcher v. Peck, 6 Cranch 87, 130, that it
was not consonant with our scheme of government
for a court to inquire into the motives of legislators,
has remained unquestioned. . ..
" ... In times of political passion, dishonest or
vindictive motives are readily attributed to legislative
conduct and as readily believed. Courts are
not the place for such controversies. Self-discipline
and the voters must be the ultimate reliance ~or dis501
UNITED STATES v. BREWSTER 535
BRENNAN, J., dissenting
couraging or correcting such abuses." Id., at 377-
378.
Barring congressional power to authorize this prosecution,
what has been said thus far would seem sufficient
to require affirmance of the order of dismissal, for neither
Senator Brewster's vote nor his motives for voting, however
dishonorable, may be the subject of a civil or criminal
proceeding outside the halls of the Senate. There
is nothing complicated about this conclusion. It follows
simply and inescapably from prior decisions of this Court,
supra, setting forth the most basic elements of legislative
immunity. Yet the Court declines to apply those
principles to this case, for it somehow finds that the
Government can prove its case without referring to the
Senator's official acts or motives. According to the
Court, the Government can limit its proof on Counts
1, 3, 5, and 7 to evidence concerning Senator Brewster's
"taking or agreeing to take money for a promise to act
in a certain way," and need not show "that appellee
fulfilled the alleged illegal bargain; acceptance of the
bribe is the violation of the statute, not performance
of the illegal promise." Ante, at 526. Similarly, the
Court finds that Count 9 can be proved merely by showing
that the Senator solicited or received money "with
knowledge that the donor was paying him compensation
for an official act," without any inquiry "into the legislative
performance itself." Ante, at 527. These evidentiary
limitations are deemed sufficient to avoid the
prohibitions of the Speech or Debate Clause.
With all respect, I think that the Court has adopted
a wholly artificial view of the charges before us. The
indictment alleges, not the mere receipt of money, but
the receipt of money in exchange for a Senator's vote
and promise to vote in a certain way. Insofar as these
charges bear on votes already cast, the Government can536
OCTOBER TERM, 1971
BRENNAN, J., dissenting 408U. S.
not avoid proving the performance of the bargained-for
acts, for it is the acts themselves, together with the
motivating bribe, that form the basis of Count 9 of
the indictment. Proof of "knowledge that the donor
was paying . . . for an official act" may be enough for
conviction under § 201 (g). But assuming it is, the
Government still must demonstrate that the "official
act" referred to was actually performed, for that is what
the indictment charges. Count 9, in other words, calls
into question both the p~rformance of official acts by
the Senator and his reasons for voting as he did. Either
inquiry violates the Speech or Debate Clause.
The counts charging only a corrupt promise to vote
are equally repugnant to the Clause. The Court may be
correct that only receipt of the bribe, and not performance
of the bargain, is needed to prove these counts.
But proof of an agreement to be "influenced" in the
performance of legislative acts is by definition an inquiry
into their motives, whether or not the acts themselves
or the circumstances surrounding them are questioned
at trial. Furthermore, judicial inquiry into an
alleged agreement of this kind carries with it the same
dangers to legislative independence that are held to bar
accountability for official conduct itself. As our Brother
WHITE cogently states, post, at 556:
"Bribery is most often carried out by prearrangement;
if that part of the transaction may be plucked
from its context and made the basis of criminal
charges, the Speech or Debate Clause loses its force.
It will be small comfort for a Congressman to know
that he cannot be prosecuted for his vote, whatever
it may be, but he can be prosecuted for an
alleged agreement even if he votes contrary to the
asserted bargain."
UNITED STATES v. BREWSTER 537
501 BRENNAN, J., dissenting
Thus, even if this were an issue of first impression, I
would hold that this prosecution, being an extracongressional
inquiry into legislative acts and motives,
is barred by the Speech or Debate Clause.
What is especially disturbing about the Court's result,
however, is that this is not an issue of first impression,
but one that was settled six years ago in United
States v. Johnson, 383 U.S. 169 (1966). There a former
Congressman was charged with violating the federal
conflict-of-interest statute, 18 U.S. C.§ 281 ( 1964 ed.), and
with conspiring to defraud the United States, 18 U. S. C.
§ 371, by accepting a bribe in exchange for his agreement
to seek dismissal of federal indictments pending against
officers of several savings and loan companies. Part of
the alleged conspiracy was a speech delivered by Johnson
on the floor of the House, favorable to loan companies
generally. The Government relied on that speech at
trial and questioned Johnson extensively about its contents,
authorship, and his reasons for delivering it. The
Court of Appeals set aside the conspiracy conviction,
holding that the Speech or Debate Clause barred such
a prosecution based on an allegedly corrupt promise to
deliver a congressional speech. In appealing that decision
the Government made the very same argument that
appears to persuade the Court today:
"[The rationale of the Clause) is applicable in
suits based upon the content of a legislator's speech
or action, where immunity is necessary to prevent
impediments to the free discharge of his public
duties. But it does not justify granting him immunity
from prosecution for accepting or agreeing
to accept money to make a speech in Congress. The
latter case poses no threat which could reasonably
cause a Congressman to restrain himself in his
official speech, because no speech, as such, is being
538 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
questioned. It is only the antecedent conduct of
accepting or agreeing to accept the bribe which is
attacked in such a prosecution. 'Whether the party
taking the bribe lives up to his corrupt promise or
not is immaterial. The agreement is the essence
of the offense; when that is consummated, the offense
is complete.' 3 Wharton, Criminal Law and
Procedure, § 1383 (Anderson ed. 1957) . . . . Thus,
if respondent, after accepting the bribe, had failed
to carry out his bargain, he could still be prosecuted
for the same offense charged here, but it could not
be argued that any speech was being 'questioned'
in his prosecution. The fact that respondent fulfilled
his bargain and delivered the corrupt speech
should not render the entire course of conduct constitutionally
protected." Brief for the United States
in United States v. Johnson, No. 25, 0. T. 1965, pp.
10-11.
The Johmon opinion answered this argument in two
places. After emphasizing that the prosecution at issue
was "based upon an allegation that a member of Congress
abused his position by conspiring to give a particular
speech in return for remuneration from private interests,"
the Court stated, 383 U. S., at 180:
"However reprehensible such conduct may be, we
believe the Speech or Debate Clause extends at least
so far as to prevent it from being made the basis of
a criminal charge against a member of Congress of
conspiracy to defraud the United States by impeding
the due discharge of government functions. The
essence of such a charge in this context is that the
Congressman's conduct was improperly motivated,
and ... that is precisely what the Speech or Debate
Clause generally forecloses from executive and judicial
inquiry." (Emphasis supplied.)
UNITED STATES v. BREWSTER 539
501 BRENNAN, J., dissenting
Again, the Court stated, id., at 182-183:
"The Government argues that the clause was meant
to prevent only prosecutions based upon the 'content'
of speech, such as libel actions, but not those
founded on 'the antecedent unlawful conduct of
accepting or agreeing to accept a bribe.' Brief of
the United States, at 11. Although historically seditious
libel was the most frequent instrument for
intimidating legislators, this has never been the sole
form of legal proceedings so employed, and the
language of the Constitution is framed in the broadest
terms."
Fina1ly, any doubt that the Johnson Court rejected
the argument put forward by the Government was
dispelled by its citation of Ex parte W a.son, L. R. 4 Q. B.
573 ( 1869). In that case a private citizen moved
to require a magistrate to prosecute several members
of the House of Lords for conspiring to prevent
his petition from being heard on the floor. The court
denied the motion, holding that "statements made by
members of either House of Parliament in their places
in the House . . . could not be made the foundation of
civil or criminal proceedings, however injurious they
might be to the interest of a third person. And a conspiracy
to make such statements would not make the
persons guilty of it amenable to the criminal law." Id.,
at 576 (Cockburn, C. J.). Mr. Justice Blackburn added,
"I entirely concur in thinking that the information did
only charge an agreement to make statements in the
House of Lords, and therefore did not charge any indictable
offence." Ibid.
Johnson, then, can only be read as holding that a
corrupt agreement to perform legislative acts, even if
provable without reference to the acts themselves, may
not be the subject of a general conspiracy prosecution.
540 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
In the face of that holding and Johnson's rejection of
reasoning identical to its own, the Court finds support
in the fact that Johnson "authorized a new trial on the
conspiracy count, provided that all references to the
making of the speech were eliminated." Ante, at 511.
But the Court ignores the fact that, with the speech
and its motives excluded from consideration, this new
trial was for nothing more than a conspiracy to intervene
before an Executive Department, i. e., the Justice
Department. And such executive intervention has
never been considered legislative conduct entitled to
the protection of the Speech or Debate Clause. See
infra, at 542. The Court cannot camouflage its departure
from the holding of Johnson by ref erring to
a collateral ruling having little relevance to the fundamental
issues of legislative privilege involved in that case.
I would follow Johnson and hold that Senator Brewster's
alleged promise, like the Congressman's there, is
immune from executive or judicial inquiry.
II
The only issue for me, then, is the one left open in
Johnson-that is, the validity of a "prosecution which,
though possibly entailing inquiry into legislative acts
or motivations, is founded [not upon a general conspiracy
statute but] upon a narrowly drawn statute
passed by Congress in the exercise of its legislative power
to regulate the conduct of its members." 383 U. S.,
at 185. Assuming that 18 U. S. C. § 201 is such a
"narrowly drawn statute," I do not believe that it, any
more than a general enactment, can serve as the instrument
for holding a Congressman accountable for his
legislative acts outside the confines of his own chamber.
The Government offers several reasons why such
a "waiver" of legislative immunity should be allowed.
None of these, it seems to me, is sufficient to override
UNITED ST ATES v. BREWSTER 541
501 BRENNAN, J., dissenting
the public's interest in legislative independence, secured
to it by the principles of the Speech or Debate Clause.1
As a preliminary matter, the Government does not
contend, nor can it, that no forum was provided in
which Senator Brewster might have been punished if
guilty. Article I, § 5, of the Constitution provides
that "[e]ach House may determine the Rules of its
Proceedings, punish its Members for disorderly Behavior,
and, with the Concurrence of two thirds, expel a Member."
This power has a broad reach, extending "to all
cases where the offence is such as in the j udgment of
the [House or] Senate is inconsistent with the trust
and duty of a member." In re Chapman, 166 U. S. 661,
669-670 ( 1897). Chapman, for example, concerned a
Senate investigation of charges that Senate members had
speculated in stocks of companies interested in a pending
tariff bill. Similarly, the House of Representatives in
1873 censured two members for accepting stock to forestall
a congressional inquiry into the Credit Mobilier. There
are also many instances of imprisonment or expulsion
by Parliament of members who accepted bribes.~
Though conceding that the Houses of Congress are
empowered to punish their members under Art. I, § 5,
the Government urges that Congress may also enact a
statute, such as 18 U. S. C. § 201, pr,oviding for judicia.l
enforcement of that power. In support of this position,
the Government relies primarily on the following language
from the opinion in Burton v. United States, 202
U. S. 344, 367 (1906):
"While the framers of the Constitution intended
1 Although the Court does not reach this issue, it adopts many
of the Government's arguments to show that the Speech or Debate
Clause is or should be wholly inapplicable to this case. My disagreement
with these contentions applies equally to their use by
the Court in support of its position.
2 Seen. 4, infra, and accompanying text.
542 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
that each Department should keep within its appointed
sphere of public action, it was never contemplated
that the authority of the Senate to admit
to a seat in its body one who had been duly elected
as a Senator, or its power to expel him after being
admitted, should, in any degree, limit or restrict
the authority of Congress to enact such statutes,
not forbidden by the Constitution, as the public
interests required for carrying into effect the powers
granted to it."
However, Burton was not a case that involved conduct
protected by the Speech or Debate Clause. Senator Burton
was prosecuted for accepting money to influence
the Post Office Department in a mail fraud case
in violation of Rev. Stat. § 1782, 13 Stat. 123. That
was nonlegislative conduct, and as we said in Johnson,
supra, at 172 " [ n] o argument is made, nor do we think
that it could be successfully contended, that the Speech or
Debate Clause reaches conduct, such as was involved in
the attempt to influence the Department of Justice, that
is in no wise related to the due functioning of the legislative
process." Such a prosecution, as the quoted
excerpt from Burton specifically said, is "not forbidden
by the Constitution," but that holding has little relevance
to a case, such as this one, involving legislative acts and
motives.
The Government, however, cites additional considerations
to support the authority of Congress to provide
for judicial trials of corrupt Members; the press of congressional
business, the possibility of politically motivated
judgments by fellow Members, and the procedural
safeguards of a judicial trial are all cited as reasons why
Congress should be allowed to transfer the trial of a
corrupt Member from the Houses of Congress to the
courts. Once again, these are arguments urged and
found unpersuasive in Johnson. I find them no more
UNITED STATES v. BREWSTER 543
501 BRENNAN, J., dissenting
persuasive now. I may assume as a general matter
that the "Legislative Branch is not so well suited as
politically independent judges and juries to the task of
ruling upun the blameworthiness of, and levying appropriate
punishment upon, specific persons." United
States v. Brown, 381 U.S. 437,445 (1965). Yet it does
not necessarily follow that prosecutors, judges, and juries
are better equipped than legislators to make the kinds
of political judgments required here. Senators and
Congressmen are never entirely free of political pressures,
whether from their own constituents or from
special-interest lobbies. Submission to these pressures,
in the hope of political and financial support, or the
fear of its withdrawal, is not uncommon, nor is it necessarily
unethical.3 The line between legitimate influence
and outright bribe may be more a matter of emphasis
than objective fact, and in the end may turn on the
trier's view of what was proper in the context of the
everyday realities and necessities of political office.
Whatever the special competence of the judicial process
3 Cf. Conflict of Interest and Federal Service, Association of the
Bar of the City of New York 14-15 (1960):
"The congressman's representative status lies at the heart of the
matter. As a representative, he is often supposed to represent a
particular economic group, and in many instances his own economic
self-interest is closely tied to that group. That is precisely why
it selected him. It is common to talk of the Farm Bloc, or the
Silver Senators. We would think odd a fishing state congressman
who was not mindful of the interests of the fishing industrythough
he may be in the fishing business himself, and though his
campaign funds come in part from this source. This kind of
representation is considered inevitable and, indeed, generally applauded.
Sterile application of an abstract rule against acting in
situations involving self-interest would prevent the farmer senator
from voting on farm legislation or the Negro congressman from
speaking on civil rights bills. At some point a purist attitude
toward the evils of conflicts of interest in Congress runs afoul of
the basic premises of American representative government."
544 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
in other areas, members of Congress themselves are likely
to be in the better position to judge the issue of bribery
relating to legislative acts. The observation of Mr. Justice
Frankfurter bears repeating here: "Courts are not
the place for such controversies. Self-discipline and
the voters must be the ultimate reliance for discouraging
or correcting such abuses." Tenney v. Brandhove, 341
U. S., at 378.
Nor is the Member at the mercy of his colleagues, free
to adjust as they wish his rights to due process and
free expression. It is doubtful, for example, that the
Congress could punish a Member for the mere expression
of unpopular views otherwise protected by the First
Amendment. See Bond v. Floyd, 385 U. S. 116 (1966).
And judicial review of the legislative inquiry is not
completely foreclosed; the power of the House and
Senate to discipline the conduct of Members is not
exempt from the "restraints imposed by or found in the
implications of the Constitution." Barry v. United
States ex reL Cunningham, 279 U. S. 597, 614 (1929),
quoted in Powell v. McCormack, 395 U. S. 486, 519 n. 40
(1969).
Finally, the Government relies on the history of the
Clause to support a congressional power of delegation.
While agreeing that the Speech or Debate Clause was a
"culmination of a long struggle for parliamentary
supremacy" and a reaction against the Crown's use of
"criminal and civil law to suppress and intimidate critical
legislators," Johnson, supra, at 178, the Government
urges that this is not the whole story. It points out
that while a large part of British history was taken
up with Parliament's struggles to free itself from royal
domination, the balance of power was not always ranged
against it. Once Parliament succeeded in asserting
rightful dominion over its members and the conduct
of its business, Parliament sought to extend its reach
UNITED STATES v. BREWSTER 545
501 BRENNAN, J., dissenting
into areas and for purposes that can only be labeled
an abuse of legislative power. Aware of these abuses,
the Framers, the Government submits, did not mean
Congress to have exclusive power, but one which, by
congressional delegation, might be shared with the Executive
and Judicial Branches.
That the Parliamentary privilege was indeed abused
is historical fact. By the close of the 17th century,
Parliament had succeeded in obtaining rights of free
speech and debate as well as the power to punish
offenses of its members contravening the good order
and integrity of its processes. In 1694, five years
after incorporation of the Speech or Debate Clause in
the English Bill of Rights, Lord Falkland was found
guilty in Commons of accepting a bribe of 2,000 pounds
from the Crown, and was imprisoned during the pleasure
of the House. The Speaker of the House of Commons,
Sir John Trevor, was censured for bribery the following
year.4
But Parliament was not content with mere control over
its members' conduct. Independence brought an assertion
of absolute power over the definition and reach of institutional
privileges. "[T]he House of Commons and
the House of Lords claimed absolute and plenary authority
over their privileges. This was an independent body
of law, described by Coke as lex parliamenti. Only Parliament
could declare what those privileges were or what
new privileges were occasioned, and only Parliament could
judge what conduct constituted a breach of privilege.''
Watkins v. United States, 354 U. S. 178, 188 (1957).
Thus, having established the basic privilege of its members
4 R. Luce, Legislative Assemblies 401-402 ( 1924). Another notable
instance was that of Robert Wa.!pole, who in 1711 was expelled
and imprisoned by the House on charges of corruption. T. Taswell-
Langmead's English Constitutional History 583-584 (11th ed.,
T. Plucknett, 1960).
546 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
to be free from civil arrest or punishment, the House extended
the privilege to its members' servants, and punished
trespass on the estates of its members, or theft of
their or their servants' goods. The House went so far
as to declare its members' servants to be outside the reach
of the common-law courts during the time that Parliament
was sitting. This led to the sale of "protections"
providing that named persons were servants of a
particular member and should be free from arrest,
imprisonment, and molestation during the term of
Parliament.5 These abuses in turn were brought to
America. By 1662, for example, the Virginia House of
Burgesses had succeeded in exempting not only its members,
but their servants as well, from arrest and
molestation.6
The Government is correct in pointing out that the
Framers, aware of these abuses, were determined to
guard against them. Madison stated that the "legislative
department is every where extending the sphere of
its activity, and drawing all power into its impetuous
vortex." 1 And Jefferson looked on the "tyranny of the
5 C. Wittke, The HiRtory of English Parliamentary Privilege
39-47 (1921); Taswell-Langmead, supra, at 580. The abuse of the
privilege lay as much in its arbitrary contraction as extension. In
1763 the House of Commons reacted angrily to a tract written by one
of its own members, John Wilkes, and withdrew the privilege from
him in order to permit his prosecution for seditious libel. The House
also expelled Wilkes, and he fled to France as an outlaw. Upon
his return to England in 1768, he was re-elected to Parliament,
again expelled, tried for seditious libel, and sentenced to 22 months'
imprisonment. The House refused to seat him on three further
occasions, and it was not until 1782 that the resolutions expelling
Wilkes and declaring him incapable of re-election were expunged from
the records of the House. Taswell-Langmead, supra, at 584-585;
Powell v. McCormack, 395 U.S. 486, 527-528 (1969).
6 M. ClarkE>, Parliamentary Privilege in the American Colonies 99
(1943).
7 The Federalist No. 48.
UNITED STATES v. BREWSTER 547
501 BRENNAN, J., dissenting
legislatures" as "the most formidable dread at present, and
will be for long years." 8 Therefore the Framers refused
to adopt the lex parliamenti, which would have allowed
Congressmen and their servants to enjoy numerous immunities
from ordinary legal restraints. But it does
not follow that the Framers went further and authorized
Congress to transfer discipline of bribe takers to the Judicial
Branch. The Government refers us to nothing in
the Convention debates or in writings of the Framers that
even remotely supports the argument. Indeed there is
much in the history of the Clause to point the other way,
toward a personalized legislative privilege not subject to
def easance even by a specific congressional delegation to
the courts.
The Johnson opinion details the history. The Clause
was formulated by the Convention's Committee on Style,
which phrased it by revising Article V of the Articles of
Confederation which had provided: "Freedom of speech
and debate in Congress shall not be impeached or questioned
in any court, or place out of Congress." (Emphasis
supplied.) This wording derived in turn from
the provision of the English Bill of Rights of 1689 that
"Freedom of Speech, and Debates or Proceedings in Parliament,
ought not to be impeached or questioned in any
Court or Place out of Parliament." (Emphasis supplied.)
The same wording, or variations of it, appeared
in state constitutions. Article VIII of the Maryland
Declaration of Rights ( 1776) declared that legislative
freedom "ought not to be impeached in any other court
or judicature." The Massachusetts Bill of Rights (Art.
XXI, 1780) provided that the "freedom of deliberation,
speech, and debate, in either house of the legislature, i~
so essential to the rights of the people, that it cannot
be the foundation of any accusation or prosecution,
8 Tenney v. Brandhove, 341 U. S. 367, 375 n. 4 (1951).
548 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
action or complaint, in any other court or place whatsoever."
The New Hampshire Constitution (Art. XXX,
1784) contained a provision virtually identical to Massachusetts'.
In short "[f] reedom of speech and action in
the legislature was taken as a matter of course by those
who severed the Colonies from the Crown and founded
our Nation.'' Tenney v. Brandhove, 341 U.S., at 372.
Despite his fear of "legislative excess," Tenney v.
Brandhove, supra, at 375, Jefferson, when confronted
with criticism of certain Congressmen by the Richmond,
Virginia, grand jury, said:
"[T]hat in order to give to the will of the people
the influence it ought to have, and the information
which may enable them to exercise it usefully, it
was a part of the common law, adopted as the law
of this land, that their representatives, in the discharge
of their .functions, should be free from the
cognizance or coercion of the coordinate branches,
Judiciary and Executive." 8 The Works of Thomas
Jefferson 322 (Ford ed. 1904).
Jefferson's point of view was shared by his contemporaries"
and found judicial expression as early as 1808,
in the Coffin opinion, supra. It was there stated:
"In considering this article, it appears to me that
the privilege secured by it is not so much the privilege
of the house as an organized body, as of each
individual member composing it, who is entitled to
9 James Wilson, a member of the Convention committee responsible
for the Clause, stated: "In order to enable and encourage
a representative of the publick to discharge his publick trust with
firmness and success, it is indispensably necessary, that he should
enjoy the fullest liberty of speech, and that he should be protected
from the resentment of every one, however powerful, to whom the
exercise of that liberty may occasion offence." I The Works of
James Wilson 421 (R. McC!oskey ed. 1967).
501
UNITED STATES v. BREWSTER 549
BRENNAN, J., dissenting
this privilege, even against the declared will of the
house. For he does not hold this privilege at the
pleesure of the house; but derives it from the will
of the people, expressed in the constitution, which
is paramount to the will of either or both branches
of the legislature. In this respect the privilege here
secured resembles other privileges attached to each
member by another part of the constitution, by
which he is exempted from arrests on mesne ( or
original) process, during his going to, returning from,
or attending the general court. Of these privileges,
thus secured to each member, he cannot be deprived,
by a resolve of the house, or by an act of the legislature."
4 Mass., at 27. (Emphasis supplied.)
In short, if the Framers contemplated judicial inquiry
into legislative acts, even on the specific authorization of
Congress, that intent is not reflected in the language of
the Speech or Debate Clause or contemporary understanding
of legislative privilege. History certainly shows
that the Framers feared unbridled legislative power.
That fact, however, yields no basis for an interpretation
that in Art. I, §§ 1 and 8, the Framers authorized Congress
to ignore the prohibition against inquiry in "any
other place" and enact a statute either of general application
or specifically providing for a trial in the courts
of a member who takes a bribe for conduct related to
legislative acts. 10
10 While it is true that Congress has made the acceptance of a
bribe a crime ever since 1853, it should be noted that the earliest
federal bribery statute, passed by Congress in 1790, applied only
to judges who took bribes in exchange for an "opinion, judgment or
decree." Act of April 30, 1790, 1 Stat. 112, 117. It also appears
that the common law did not recognize the charge of bribe-taking
by a legislator. Blackstone, for example, defined bribery as "when
a judge, or other person concerned in the administration of justice,
550 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
III
I yield nothing to the Court in conviction that this
reprehensible and outrageous conduct, if committed by
the Senator, should not have gone unpunished. But
whether a court or only the Senate might undertake the
task is a constitutional issue of portentous significance,
which must of course be resolved uninfluenced by the
magnitude of the perfidy alleged. It is no answer that
Congress assigned the task to the judiciary in enacting
18 U. S. C. § 201. Our duty is to Nation and Constitution,
not Congress. We are guilty of a grave disservice
to both Nation and Constitution when we permit Congress
to shirk its responsibility in favor of the courts.
The Framers' judgment was that the American people
could have a Congress of independence and integrity only
if alleged misbehavior in the performance of legislative
functions was accountable solely to a Member's own
House and never to the executive or judiciary. The
passing years have amply justified the wisdom of that
judgment. It is the Court's duty to enforce the letter
of the Speech or Debate Clause in that spirit. We did
so in deciding Johnson. In turning its back on that decision
today, the Court arrogates to the judiciary an
authority committed by the Constitution, in Senator
Brewster's case, exclusively to the Senate of the United
States. Yet the Court provides no principled justification,
and I can think of none, for its denial that United
States v. Johnson compels affirmance of the District
Court. That decision is only six years old and bears
the indelible imprint of the distinguished constitutional
scholar who wrote the opinion for the Court. Johnson
surely merited a longer life.
takes any undue reward to influence his behaviour in his office."
4 W. Blackstone, Commentaries *139. Coke also regarded bribery
as a crime committed by judges. Coke, Third Institute c. 68,
'iii 1-2.
UNITED STATES v. BREWSTER 551
501 WHITE, J., dissenting
MR. JUSTICE WHITE, with whom MR. JUSTICE DouGLAS
and MR. JUSTICE BRENNAN join, dissenting.
The question presented by this case is not whether
bribery or other offensive conduct on the part of Members
of Congress must or should go unpunished. No one
suggests that the Speech or Debate Clause insulates
Senators and Congressmen from accountability for their
misdeeds. Indeed, the Clause itself is but one of several
constitutional provisions that make clear that Congress
has broad powers to try and punish its Members:
"[T]he Constitution expressly empowers each House
to punish its own members for disorderly behavior.
We see no reason to doubt that this punishment
may in a proper case be imprisonment, and that it
may be for refusal to obey some rule on that subject
made by the House for the preservation of order.
"So, also, the penalty which each House is authorized
to inflict in order to compel the attendance
of absent members may be imprisonment, and this
may be for a violation of some order or standing rule
on that subject.
"Each House is by the Constitution made the
judge of the election and qualification of its members.
In deciding on these it has an undoubted
right to examine witnesses and inspect papers, subject
to the usual rights of witnesses in such cases;
and it may be that a witness would be subject to like
punishment at the hands of the body engaged in
trying a contested election, for refusing to testify,
that he would if the case were pending before a
court of judicature.
"The House of Representatives has the sole right
to impeach officers of the government, and the
Senate to try them. Where the question of such
impeachment is before either body acting in its ap552
OCTOBER TERM, 1971
WHITE, J., dissenting 408U.S.
propriate sphere on that subject, we see no reason
to doubt the right to compel the attendance of
witnesses, and their answer to proper questions, in
the same manner and by the use of the same means
that courts of justice can in like cases." Kilbourn
v. Thompson, 103 U. S. 168, 189-190 (1881).
The sole issue here is in what forum the accounting must
take place-whether the prosecution that the Government
proposes is consistent with the command that
"for any Speech or Debate in either House, they [Members
of Congress] shall not be questioned in any other
Place." U. S. Const., Art. I, § 6, cl. 1.
The majority disposes of this issue by distinguishing
between promise and performance. Even if a Senator
or Congressman may not be prosecuted for a corrupt
legislative act, the Speech or Debate Clause does not
prohibit prosecution for a corrupt promise to perform
that act. If a Member of Congress promises to vote
for or against a bill in return for money, casts his vote
in accordance with the promise and accepts payment, the
majority's view is that even though he may not be
prosecuted for voting as he did, although the vote was
corrupt, the executive may prosecute and the judiciary
may try him for the corrupt agreement or for taking the
money either under a narrowly drawn statute or one of
general application. This distinction between a promise
and an act will not withstand scrutiny in terms of the
values that the Speech or Debate Clause was designed
to secure.
The majority agrees that in order to assure the independence
and integrity of the legislature and to reinforce
the separation of powers so deliberately established by
the Founders, the Speech or Debate Clause prevents a
legislative act from being the basis of criminal or civil
liability. Concededly, a Member of Congress may not
be prosecuted or sued for making a speech or voting in
UNITED STATES v. BREWSTER 553
501 WHITE, J., dissenting
committee or on the floor, whether he was paid to do
so or not. The majority also appears to embrace the
holding in United States v. Johnson, 383 U.S. 169 (1966) ,
that a Member of Congress could not be convicted of a
conspiracy to defraud the Government where the purposes
or motives underlying his conduct as a legislator
are called into question. If one follows the mode of the
majority's present analysis, the prosecution in Johnson
was not for speaking, voting, or performing any other
legislative act in a particular manner; the criminal act
charged was a conspiracy to defraud the United States
anterior to any legislative performance. To prove the
crime, however, the prosecution introduced evidence that
money was paid to make a speech, among other things,
and that the speech was made. This, the Court held,
violated the Speech or Debate Clause, because it called
into question the motives and purposes underlying Congressman
Johnson's performance of his legislative duties.
The same infirmity inheres in the present indictment,
which was founded upon two separate statutes. Title 18
U. S. C. § 201 (g) requires proof of a defendant's receipt,
or an agreement or attempt to receive, anything of value
"for or because of any official act performed or to be
performed by him . . . ." Of course, not all, or even
many, official acts would be legislative acts protected by
the Speech or Debate Clause; but whatever the act, the
Government must identify it to prove its case. Here we
are left in no doubt whatsoever, for the official acts
expressly charged in the indictment were in respect to
"his action, vote and decision on postage rate legislation."
Similarly, there is no basis for arguing that the indictment
did not contemplate proof of performance of the
act, for the indictment in so many words charged the
arrangement was "for and because of official acts performed
by him in respect to his action, vote and decision
on postage rate legislation which had been pending before
554 OCTOBER TERM, 1971
WHITE, J., dissenting 408 U.S.
him in his official capacity." (Emphasis added.) It is
this indictment, not some other charge, that was challenged
and dismissed by the District Court. Like that
court, I would take the Government at its word: it alleged
and intended to prove facts that questioned and impugned
the motives and purposes underlying specified
legislative acts of the Senator and intended to use these
facts as a basis for the conviction of the Senator himself.
Thus, taking the charge at face value, the indictment
represents an attempt to prosecute and convict a Member
of Congress not only for taking money but also for
performing a legislative act. Moreover, whatever the
proof might be, the indictment on its face charged a corrupt
undertaking ·with respect to the performance of legislative
conduct that had already occurred and so, without
more, "questioned in [some] other Place" the speech and
debate of a Member of Congress. Such a charge is precisely
the kind that the Senator should not have been
called upon to answer if the Speech or Debate Clause is
to fulfill its stated purpose.
Insofar as it charged crimes under 18 U. S. C. § 201
(c)(l), the indictment fares little better. That section
requires proof of a corrupt arrangement for the receipt of
money and also proof that the arrangement was in return
for the defendant "being influenced in his performance of
any official act .... " Whatever the official act may prove
to be, the Government cannot prove its case without calling
into question the motives of the Member in performing
that act, for it must prove that the Member undertook
for money to be influenced in that performance. Clearly,
if the Government sought to prove its case against a
Member of Congress by evidence of a legislative act,
conviction could not survive in the face of the holding
in Johnson. But even if an offense under the statute
could be established merely by proof of an undertaking
to cast a vote, which is not alleged in the indictment or
UNITED STATES v. BREWSTER 555
501 WHITE, J., dissenting
shown at trial to have taken place one way or the other,
the motives of the legislator in performing his duties with
respect to the subject matter of the undertaking would
nevertheless inevitably be implicated. In charging the
offense under § 201 (c) (1), the indictment alleged a corrupt
arrangement made "in return for being influenced
in his performance of official acts in respect to his action,
vote, and decision on postage legislation which might at
any time be pending before him in his official capacity."
Again, I would take the Government at its word: it
charged and intended to prove facts that could not fail
to implicate Senator Brewster's performance of his legislative
duties.*
The use of criminal charges "against critical or disfavored
legislators by the executive in a judicial forum
was the chief fear prompting the long struggle for parliamentary
privilege," United States v. Johnson, 383 U. S.,
at 182 (1966), and in applying the privilege "we look
particularly to the prophylactic purposes of the clause."
Ibid. Let us suppose that the Executive Branch is informed
that private interests are paying a Member of
Congress to oppose administration-sponsored legislation.
The Congressman is chairman of a key committee where
a vote is pending. A representative from the Executive
Branch informs the Congressman of the allegations
against him, hopes the charges are not true, and expresses
confidence that the committee will report the bill and that
the Member will support it on the floor. The pressure
on the Congressmen, corrupt or not, is undeniable. He
*In Gravel v. United States, post, p. 606, it is held that the Speech
or Debat,e Clause does not immunize criminal acts performed in preparation
for or execution of a legislative act. But the unprotected acts
referred to there were criminal in themselves, provable without reference
to a legislative act and without putting the defendant Member
to the task of defending the int.egrity of his legislative performance.
Here, as stated, the crime charged necessarily implicates the Member's
legislative duties.
556 OCTOBER TERM, 1971
WHITE, J., dissenting 408 U.S.
will clearly fare better in any future criminal prosecution
if he answers the charge of corruption with evidence that
he voted contrary to the alleged bargain. Even more
compelling is the likelihood that he will not be prosecuted
at all if he follows the administration's suggestion and
supports the bill. Putting aside the potential for abuse
in ill-conceived, mistaken, or false accusations, the Speech
or Debate Clause was designed to prevent just such an
exercise of executive power. It is no answer to maintain
that the potential for abuse does not inhere in a
prosecution for a completed bribery transaction where
the legislative act has already occurred. A corrupt vote
may not be made the object of a criminal prosecution
because otherwise the Executive would be armed with
power to control the vote in question, if forewarned, or
in any event to control other legislative conduct.
All of this comes to naught if the executive may
prosecute for a promise to vote though not for the vote
itself. The same hazards to legislative independence
inhere in the two prosecutions. Bribery is most often
carried out by prearrangement; if that part of the transaction
may be plucked from its context and made the
basis of criminal charges, the Speech or Debate Clause
loses its force. It will be small comfort for a Congressman
to know that he cannot be prosecuted for his ;ote,
whatever it may be, but he can be prosecuted for an
alleged agreement even if he votes contrary to the
asserted bargain.
The realities of the American political system, of
which the majority fails to take account, render particularly
illusory a Speech or Debate Clause distinction between
a promise to perform a legislative act and the
act itself. Ours is a representative government. Candidates
for office engage in heated contests and the
victor is he who receives the greatest number of votes
from his constituents. These campaigns are run on
UNITED STATES v. BREWSTER 557
501 WHITE, J ., dissenting
platforms that include statements of intention and
undertakings to promote certain policies. These promises
are geared, at least in part, to- the interests of the
Congressman's constituency. Members of Congress may
be legally free from dictation by the voters, but there
is a residual conviction that they should have due regard
for the interests of their States or districts, if only because
on election day a Member is answerable for his
conduct.
Serving constituents is a crucial part of a legislator's
ongoing duties. Congressmen receive a constant stream
of complaints and requests for help or service. Judged
by the volume and content of a Congressman's mail,
the right to petition is neither theoretical nor ignored.
It has never been thought unethical for a Member of
Congress whose performance on the job may determine
the success of his next campaign not only to listen to
the petitions of interest groups in his State or district,
which may come from every conceivable group of people,
but also to support or oppose legislation serving or
threatening those interests.
Against this background a second fact of American
political life assumes considerable importance for the
purposes of this case. Congressional campaigns are most
often financed with contributions from those interested
in supporting particular Congressmen and their policies.
A legislator must maintain a working relationship with
his constituents not only to garner votes to maintain his
office but to generate financial support for his campaigns.
He must also keep in mind the potential effect of his
conduct upon those from whom he has received financial
support in the past and those whose help he expects
or hopes to have in the next campaign. An expectation
or hope of future assistance can arise because constituents
have indicated that support will be forthcoming if
the Member of Congress champions their point of view.
558 OCTOBER TERM, 1971
WHITE, J., dissenting 408U. S.
Financial support may also arrive later from those who
approve of a Congressman's conduct and have an expectation
it will continue. Thus, mutuality of support between
legislator and constituent is inevitable. Constituent
contributions to a Congressman and his support
of constituent interests will repeatedly coincide in time
or closely follow one another. It will be the rare Congressman
who never accepts campaign contributions
from persons or interests whose view he has supported
or will support, by speech making, voting, or bargaining
with fellow legislators.
All of this, or most of it, may be wholly within the
law and consistent with contemporary standards of political
ethics. Nevertheless, the opportunities for an Executive,
in whose sole discretion the decision to prosecute
rests under the statute before us, to claim that legislative
conduct has been sold are obvious and undeniable.
These opportunities, inherent in the political proces.s as
it now exists, create an enormous potential for executive
control of legislative behavior by threats or suggestions
of criminal prosecution-precisely the evil that the
Speech or Debate Clause was designed to prevent.
Neither the majority opinion nor the statute under
which Brewster is charged distinguishes between campaign
contributions and payments designed for or put
to personal use. To arm the Executive with the power
to prosecute for taking political contributions in return
for an agreement to introduce or support particular legislation
or policies is to vest enormous leverage in the
Executive and the courts. Members of Congress may
find themselves in the dilemma of being forced to conduct
themselves contrary to the interests of those who
provide financial support or declining that support.
They may also feel constrained to listen less of ten to
the entreaties and demands of potential contributors.
The threat of prosecution for supposed missteps that
UNITED STATES v. BREWSTER 559
501 WHITE, J., dissenting
are difficult to define and fall close to the line of what
ordinarily is considered permissible, even necessary, conduct
scarcely ensures that legislative independence that
is the root of the Speech or Debate Clause.
Even if the statute and this indictment were deemed
limited to payments clearly destined for, or actually put
to, personal use in exchange for a promise to perform a
legislative act, the Speech or Debate Clause would
still be off ended. The potential for executive harassment
is not diminished merely because the conduct made
criminal is more clearly defined. A Member of Congress
becomes vulnerable to abuse each time he makes a promise
to a constituent on a matter over which he has some
degree of legislative power, and the possibility of harassment
can inhibit his exercise of power as well as his
relations with constituents. In addition, such a prosecution
presents the difficulty of defining when money obtained
by a legislator is destined for or has been put to
personal use. For the legislator who uses both personal
funds and campaign contributions to maintain himself
in office, the choice of which to draw upon may have
more to do with bookkeeping than bribery; yet any interchange
of funds would certainly render his conduct
suspect. Even those Members of Congress who keep
separate accounts for campaign contributions but retain
unrestricted drawing rights would remain open to a
charge that the money was in fact for personal use.
In both cases, the possibility of a bribery prosecution
presents the problem of determining exactly those purposes
for which campaign contributions can legitimately
be used. The difficulty of drawing workable lines enhances
the prospects for executive control and correspondingly
diminishes congressional freedom of action.
The majority does not deny the potential for executive
control that inheres in sanctioning this prosecution.
Instead, it purports to define the problem away by assert560
OCTOBER TERM, 1971
WHITE, J., dissenting 408U.S.
ing that the Speech or Debate Clause reaches only prosecutions
for legislative conduct and that a promise to vote
for a bill, as distinguished from the vote itself, does not
amount to a legislative act. The implication is that a
prosecution based upon a corrupt promise no more offends
the Speech or Debate Clause than the prosecution
of a Congressman for assault, robbery, or murder. The
power to prosecute may threaten legislative independence
but the Constitution does not for that reason forbid it.
I find this unpersuasive.
The fact that the Executive may prosecute Members
of Congress for ordinary criminal conduct, which surely
he can despite the potential for influencing legislative
conduct, cannot itself demonstrate that prosecutions for
corrupt promises to perform legislative acts would be
equally constitutional. The argument proves too much,
for it would as surely authorize prosecutions for the legislative
act itself. Moreover, there is a fundamental
difference in terms of potential abuse between prosecutions
for ordinary crime and those based upon a promise
to perform a legislative act. Even the most vocal detractor
of Congress could not accurately maintain that
the Executive would often have credible basis for accusing
a member of Congress of murder, theft, rape, or other
such crimes. But the prospects for asserting an arguably
valid claim are far wider in scope for an Executive
prone to fish in legislative waters and to search for correlations
between legislative performance and financial
support. The possibilities are indeed endless, as is the
potential for abuse.
The majority ignores another vital difference between
executive authority to prosecute for ordinary crime and
the power to challenge undertakings or conspiracies to
corrupt the legislative process. In a prosecution for
drunken driving or assault, the manner in which a Congressman
performed his legislative tasks is quite irreleUNITED
STATES v. BREWSTER 561
501 WHITE, J., dissenting
vant to either prosecution or defense. In the trial of a
Congressman for making a corrupt promise to vote, on
the other hand, proof that his vote was in fact contrary
to the terms of the alleged bargain will make a strong
defense. See United States v. Johnson, 383 U. S., at
176-177. A Congressman who knows he is under investigation
for a corrupt undertaking will be well advised
to conduct his affairs in a manner wholly at odds
with the theory of the charge which may be lodged against
him. As a practical matter, to prosecute a Congressman
for agreeing to accept money in exchange for a promise
to perform a legislative act inherently implicates legislative
conduct. And to divine a distinction between
promise and performance is wholly at odds with protecting
that legislative independence that is the heart of
the Speech or Debate Clause.
Congress itself clearly did not make the distinction
that the majority finds dispositive. The statute before
us is a comprehensive effort to sanitize the legislative
environment. It expressly permits prosecutions of members
of Congress for voting or promising to vote in exchange
for money. The statute does not concern itself
with murder or other undertakings unrelated to the legislative
process. Congress no doubt believed it consistent
with the Speech or Debate Clause to authorize executive
prosecutions for corrupt voting. Equally obvious
is the fact that Congress drew no distinction in legislative
terms between prosecutions based upon voting and
those based upon motivations underlying legislative
conduct.
The arguments that the majority now embraces were
the very contentions that the Government made in
United States v. Johnson, supra. In rejecting those
arguments on the facts of that case, where legislative
conduct as well as a prior conspiracy formed a major
part of the Government's proof, the Court referred with
562 OCTOBER TERM, 1971
WHITE, J., dissenting 408 U.S.
approval to Ex parte Wason, L. R. 4 Q. B. 573 (1869),
in which the question was whether members of the
House of Lords could be prosecuted for a conspiracy to
prevent presentation of a petition on the floor of Lords.
Johnson, supra, at 183, sets out the reaction of the English
court:
"The court denied the motion, stating that statements
made in the House 'could not be made the
foundation of civil or criminal proceedings . . . .
And a conspiracy to make such statements would
not make the person guilty of it amenable to the
criminal law.' Id., at 576. (Cockburn, C. J.) Mr.
Justice Lush added, 'I am clearly of opinion that
we ought not to allow it to be doubted for a moment
that the motives or intentions of members of either
House cannot be inquired into by criminal proceedings
with respect to anything they may do or say in
the House.' I d., at 577."
The Wason court clearly refused to distinguish between
promise and performance; the legislative privilege applied
to both. Mr. Justice Harlan, writing for the Court
in Johnson, took no issue with this position. Indeed,
he indicated that the Speech or Debate Clause barred
any prosecution under a general statute where there is
drawn in question "the legislative acts of ... the member
of Congress or his motives for performing them." 383
U. S., at 185 ( emphasis added). I find it difficult to
believe that under the statute there involved the Johnson
Court would have permitted a prosecution based upon a
promise to perform a legislative act.
Because it gives a begrudging interpretation to the
clause, the majority finds it can avoid dealing with the
position upon which the Government placed principal
reliance in its brief in this Court. Johnson put aside the
question whether an otherwise impermissible prosecution
UNITED STATES v. BREWSTER 563
501 WHITE, J., dissenting
conducted pursuant to a statute such as we now have
before us-a statute specifically including congressional
conduct and purporting to be an exercise of congressional
power to discipline its Members-would be consistent
with the Speech or Debate Clause. As must be apparent
from what so far has been said, I am convinced that such
a statute contravenes the letter and purpose of the Clause.
True, Congress itself has defined the crime and specifically
delegated to the Executive the discretion to prosecute
and to the courts the power to try. Nonetheless, I
fail to understand how a majority of Congress can bind
an objecting Congressman to a course so clearly at odds
with the constitutional command that legislative conduct
shall be subject to question in no place other than the
Senate or the House of Representatives. The Speech or
Debate Clause is an allocation of power. It authorizes
Congress to call offending members to account in their
appropriate Houses. A statute that represents an abdication
of that power is in my view impermissible.
I return to the beginning. The Speech or Debate
Clause does not immunize corrupt Congressmen. It reserves
the power to discipline in the Houses of Congress.
I would insist that those Houses develop their own institutions
and procedures for dealing with those in their
midst who would prostitute the legislative process.
564 OCTOBER TERM, 1971
Syllabus 408 U.S.
BOARD OF REGENTS OF STATE COLLEGES
ET AL. v. ROTH
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 71-162. Argued January 18, 1972-Decided June 29, 1972
Respondent, hired for a fixed term of one academic year to teach at
a state university, was informed without explanation that he
would not be rehired for the ensuing year. A statute provided
that all state university teachers would be employed initially on
probation and that only after four years' continuous service would
teachers achieve permanent employment "during efficiency and
good beha.vior," with procedural protection against separation.
University rules gave a nontenured teacher "dismissed" before the
end of the year some opportunity for review of the "dismissal,"
but provided that no reason need be given for nonretention of
a nontenured teacher, and no standards were specified for reemployment.
Respondent brought this action claiming deprivation
of his Fourteenth Amendment rights, alleging infringement
of (1) his free speech right because the true reason for his nonretention
was his criticism of the university administration, and
(2) his procedural due process right because of the university's
failure to advise him of the reason for its decision. The District
Court granted summary judgment for the respondent on the procedural
issue. The Court of Appeals affirmed. Held: The Fourteenth
Amendment does not require opportunity for a hearing
prior to the nonrenewal of a nontenured state teacher's contra.et,
unless he can show that the nonrenewal deprived him of an interest
in "liberty" or that he had a "property" interest in continued
employment, despite the lack of tenure or a formal contract.
Here the nonretention of respondent, absent any charges against
him or stigma or disability foreclosing other employment, is not
tantamount. to a deprivation of "liberty," and the terms of respondent's
employment 11ccorded him no "property" interest protected
by procedural due process. The courts below t.herefore
erred in granting summary judgment for the respondent on the
procedural due process issue. Pp. 569-579.
446 F. 2d 806, reversed and remanded.
BOARD OF REGENTS v. ROTH 565
564 Syllabus
STEWART, J., delivered the opinion of the Court, in which BURGER,
C. J., a.nd WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BURGER.
C. J., filed a concurring opinion, post, p. 603. DOUGLAS, .J., filed a
dissenting opinion, post, p. 579. BRENNAN, J., filed a dissenting
opinion, in which DoUGLAS, J., joined, post, p. 604. MARSHALL, J.,
filed a dissenting opinion, post, p. 587. PowELL, J., took no part in
the decision of the case.
Charles A. Bleck, Assistant Attorney General of Wisconsin,
argued the cause for petitioners. With him on
the brief were Robert W. Warren, Attorney General, and
Robert D. Martinson, Assistant Attorney General.
Steven H. Steinglass argued the cause for respondent.
With him on the brief were Robert L. Reynolds, Jr.,
Richard Perry, and Richard M. Klein.
Briefs of amici curiae urging reversal were filed by
Robert H. Quinn, Attorney General, Walter H. Mayo II I,
Assistant Attorney General, and Morris M. Goldings for
the Commonwealth of Massachusetts; by Evelle J.
Younger, Attorney General of California, Elizabeth
Palmer, Acting Assistant Attorney General, and Donald
B. Day, Deputy Attorney General, for the Board of
Trustees of the California State Colleges; by J. Lee
Rankin and Stanley Buchsbaum for the City of New
York; and by Albert E. Jenner, Jr., Chester T. Kamin,
and Richard T. Dunn for the American Council on Education
et al.
Briefs of amici curiae urging affirmance were filed by
David Rubin, Michael H. Gottesman, George H. Cohen,
and Warren Burnett for the National Education Association
et al.; by Herman I. Orentlicher and William W.
Van Alstyne for the American Association of University
Professors; by John Ligtenberg and Andrew J. Leahy
for the American Federation of Teachers; and by Richard
L. Cates for the Wisconsin Education Association.
566 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
MR. JusTICE STEWART delivered the opinion of the
Court.
In 1968 the respondent, David Roth, was hired for
his first teaching job as assistant professor of political
science at Wisconsin State University-Oshkosh. He was
hired for a fixed term of one academic year. The notice
of his faculty appointment specified that his employment
would begin on September 1, 1968, and would end
on June 30, 1969.1 The respondent completed that
term. But he was informed that he would not be rehired
for the next academic year.
The respondent had no tenure rights to continued
employment. Under Wisconsin statutory law a state
university teacher can acquire tenure as a "permanent"
employee only after four years of year-to-year employment.
Having acquired tenure, a teacher is entitled
to continued employment "during efficiency and good
behavior." A relatively new teacher without tenure,
however, is under Wisconsin law entitled to nothing
beyond his one-year appointment.2 There are no statu-
1 The respondent had no contract of employment. Rather, his
formal notice of appointment was the equivalent of an employment
contract.
The notice of his appointment provided that: "David F. Roth is
hereby appointed to the faculty of the Wisconsin State University
Position number 0262. (Location:) Oshkosh as (Rank:) Assistant
Professor of (Department:) Political Science this (Date:) first day
of (Month:) September (Year:) 1968." The notice went on to
specify that the respondent's "appointment basis" was for the
"academic year." And it provided that "[r]egulations governing
tenure are in accord with Chapter 37.31, Wisconsin Statutes. The
employment of any staff member for an academic year shall not be
for a term beyond June 30th of the fiscal year in which the appointment
is made." See n. 2, infra.
2 Wis. Stat. § 37.31 (1) (1967), in force at the time, provided in
pertinent part that:
"All teachers in any state university shall initially be employed
BOARD OF REGENTS v. ROTH 567
564 Opinion of the Court
tory or administrative standards defining eligibility for
re-employment. State law thus clearly leaves the decision
whether to rehire a nontenured teacher for
another year to the unfettered discretion of university
officials.
The procedural protection afforded a Wisconsin State
University teacher before he is separated from the
University corresponds to his job security. As a matter
of statutory law, a tenured teacher cannot be "discharged
except for cause upon written charges" and
pursuant to certain procedures.3 A nontenured teacher,
similarly, is protected to some extent during his oneyear
term. Rules promulgated by the Board of Regents
provide that a nontenured teacher "dismissed" before
the end of the year may have some opportunity for
review of the "dismissal." But the Rules provide no
real protection for a nontenured teacher who simply
is not re-employed for the next year. He must be
informed by February 1 "concerning retention or nonretention
for the ensuing year." But "no reason for
non-retention need be given. No review or appeal is
provided in such case."•
on probation. The employment shall be permanent, during efficiency
and good behavior after 4 years of continuous service in the state
university system as a teacher."
3 Wis. Stat. § 37.31 (1) further provided that:
"No teacher who has become permanently employed as herein
provided shall be discharged except for cause upon written charges.
Within 30 days of receiving the written charges, such teacher may
appeal the discharge by a written notice to the president of the board
of regents of state colleges. The board shall cause the charges to
be investigated, hear the case and provide such teacher with a written
statement as to their decision."
• The Rules, promulgated by the Board of Regents in 1967,
provide:
"RULE I- February first is established throughout the State University
system as the deadline for written notification of non-tenured
568 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
In conformance with these Rules, the President of
Wisconsin State University-Oshkosh informed the respondent
before Feb1·uary 1, 1969, that he would not
be rehired for the 1969-1970 academic year. He gave
the respondent no reason for the decision and no opportunity
to challenge it at any sort of hearing.
The respondent then brought this action in Federal
District Court alleging that the decision not to rehire
him for the next year infringed his Fourteenth Amendment
rights. He attacked the decision both in substance
and procedure. First, he alleged that the true
reason for the decision was to punish him for certain
statements critical of the University administration, and
that it therefore violated his right to freedom of speech.5
faculty concerning retention or non-retention for the ensuing year.
The President of each University shall give such notice each year
on or before this date."
"RULE II-During the time a faculty member is on probation, no
reason for non-retention need be given. No review or appeal is
provided in such case.
"RULE III-'Dismissal' a~ opposed to 'Non-Retention' means termination
of responsibilities during an academic year. When a nontenure
faculty member is dismissed he has no right under Wisconsin
Statutes to a review of his case or to appeal. The President may,
however, in his discretion, grant a request for a review within the
institution, either by a faculty committee or by the President, or
both. Any such review would be informal in nature and would be
advisory only.
"RULE IV-When a non-tenure faculty member is dismissed he
may request a review by or hearing before the Board of Regents.
Each such request will be considered separately and the Board will,
in its discretion, grant or deny same in each individual case."
5 While the respondent alleged that he was not rehired because of
his exercise of free speech, the petitioners insisted that the nonretention
decision was based on other, constitutionally valid grounds.
The District Court came to no conclusion whatever regarding the
true reason for the University President's decision. "In the presBOARD
OF REGENTS v. ROTH 569
564 Opinion of the Court
Second, he alleged that the failure of University officials
to give him notice of any reason for nonretention and
an opportunity for a hearing violated his right to procedural
due process of law.
The District Court granted summary judgment for the
respondent on the procedural issue, ordering the University
officials to provide him with reasons and a hearing.
310 F. Supp. 972. The Court of Appeals, with one judge
dissenting, affirmed this partial summary judgment. 446
F. 2d 806. We granted certiorari. 404 U. S. 909. The
only question presented to us at this stage in the case is
whether the respondent had a constitutional right to a
statement of reasons and a hearing on the University's
decision not to ;ehire him for another year.6 We hold
that he did not.
I
The requirements of procedural due process apply only
to the deprivation of interests encompassed by the
Fourteenth Amendment's protection of liberty and property.
When protected interests are implicated, the right
ent case," it stated, "it appears that a determination as to the
actual bases of [the] decision must await amplification of the facts
at trial. . . . Summary judgment is inappropriate." 310 F. Supp.
972,982.
6 The courts that have had to decide whether a nontenured public
employee has a right to a statement of reasons or a hearing upon
nonrenewa.l of his contract have come to varying conclusions. Some
have held that neither procedural safeguard is required. E. g., Orr
v. T.rinter, 444 F. 2d 128 (CA6); Jones v. Hopper, 410 F. 2d 1323
(CAlO); Freeman v. Gould Special School District, 405 F. 2d 1153
( CA8). At least one court has held that there is a right to a
statement of reasons but not a hearing. Drown v. Portsmouth School
District, 435 F. 2d 1182 (CAI). And another has held that both
requirements depend on whether the employee has an "expectancy"
of continued employment. Ferguson v. Thomas, 430 F. 2d 852,
856 (CA5).
570 OCTOBER TERl\1, 1971
Opinion of the Court 408 U.S.
to some kind of prior hearing is paramount.' But the
range of interests protected by procedural due process
is not infinite.
The District Court decided that procedural due process
guarantees apply in this case by assessing and
balancing the weights of the particular interests involved.
It concluded that the respondent's interest in
re-employment at Wisconsin State University-Oshkosh
outweighed the University's interest in denying him
re-employment summarily. 310 F. Supp., at 977- 979.
Undeniably, the respondent's re-employment prospects
were of major concern to him-concern that we surely
cannot say was insignificant. And a weighing processs
has long been a part of any determination of the
form of hearing required in particular situations by
procedural due process.8 But, to determine whether
1 Before a person is deprived of a protected interest, he must be
afforded opportunity for some kind of a hearing, "except for extraordinary
situations where some valid governmental interest is at
stake that justifies postponing the hearing until after the event.''
Boddie v. Connecticut, 401 U. S. 371, 379. "While '[m]any controversies
have raged about . . . the Due Process Clause,' . . . it is
fundamental that except in emergency situations (and this is not
one) due process requires that when a State seeks to terminate [a
protected] interest . . . , it must afford 'notice and opportunity for
hearing appropriate to the nature of the case' before the termination
becomes effective." Bell v. Burson, 402 U. S. 535, 542. For
the rare and extraordinary situations in which we have held that
deprivation of a protected interest need not be preceded by opportunity
for some kind of hearing, see, e. g., Central, Union Trust Co.
v. Garvan, 254 U. S. 554, 566; Phillips v. Commissioner, 283 U.S.
, 589, 597; Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594.
8 "The formality and procedural requisites for the hearing can
vary, depending upon the importance of the interests involved and
the nature of the subsequent proceedings." Boddie v. Connecticut,
supra, at 378. See, e. g., Goldberg v. Kelly, 397 U. S. 254, 263;
Hannah v. Larche, 363 U. S. 420. The constitutional requirement
BOARD OF REGENTS v. ROTH 571
564 Opinion of the Court
due process requirements apply in the first place, we
must look not to the "weight" but to the nature of
the interest at stake. See Morrissey v. Brewer, ante,
at 481. We must look to see if the interest is within
the Fourteenth Amendment's protection of liberty and
property.
"Liberty" and "property" are broad and majestic
terms. They are among the "[g] reat [ constitutional]
concepts . . . purposely left to gather meaning from
experience. . . . [T]hey relate to the whole domain
of social and economic fact, and the statesmen who
founded this Nation knew too well that only a stagnant
society remains unchanged." National Ins. Co. v. Tidewater
Co., 337 U. S. 582, 646 (Frankfurter, J., dissenting).
For that reason, the Court has fully and finally
rejected the wooden distinction between "rights" and
"privileges" that once seemed to govern the applicability
of procedural due process rights.9 The Court has
also made clear that the property interests protected by
of opportunity for some form of hearing before deprivation of a
protected interest, of course, does not depend upon such a narrow
balancing process. See n. 7, supra.
9 In a leading case decided many years ago, the Court of Appeals
for the District of Columbia Circuit held that public employment in
general was a "privilege," not a "right," and that procedural due process
guarantees therefore were inapplicable. Bailey v. Richardson, 86
U. S. App. D. C. 248, 182 F. 2d 46, aff'd by an equally divided Court,
341 U. S. 918. The basis of this holding has been thoroughly undermined
in the ensuing years. For, as MR. JUSTICE BLACKMUN wrote
for the Court only last year, "this Court now has rejected the concept
that constitutional rights turn upon whether a governmental
benefit is characterized as a 'right' or as a 'privilege.' " Graham v.
Richardson, 403 U. S. 365, 374. See, e. g., Morrnsey v. Brewer,
ante, at 482; Bell v. Burson, supra, at 539; Goldberg v. Kelly,
supra, at 262; Shapiro v. Thompson, 394 U. S. 618, 627 n. 6;
Pickering v. Boa.rd of Education, 391 U. S. 563, 568; Sherbert v.
Verner, 374 U.S. 398, 404.
572 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
procedural due process extend well beyond actual ownership
of real estate, chattels, or money.10 By the
same token, the Court has required due process protection
for deprivations of liberty beyond the sort of formal
constraints imposed by the criminal process.11
Yet, while the Court has eschewed rigid or formalistic
limitations on the protection of procedural due process,
it has at the same time observed certain boundaries.
For the words "liberty" and "property" in the Due
Process Clause of the Fourteenth Amendment must be
given some meaning.
II
"While this Court has not attempted to define with
exactness the liberty ... guaranteed [by the Fourteenth
Amendment], the term has received much consideration
and some of the included things have been definitely
stated. Without doubt, it denotes not merely freedom
from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations
of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God
according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized ...
as essential to the orderly pursuit of happiness by free
men." Meyer v. Nebraska, 262 U. S. 390, 399. In
a Constitution for a free people, there can be no doubt
that the meaning of "liberty" must be broad indeed.
See, e. g., Bolling v. Sharpe, 347 U. S. 497, 499-500;
Stanley v. Illinois, 405 U. S. 645.
10 See, e. g., Connell v. Higginbotham, 403 U.S. 207, 208; Bell
v. Burson, supra; Goldberg v. Kelly, supra.
11 "Although the Court has not assumed to define 'liberty' [in
the Fifth Amendment's Due Process Clause] with any great precision,
that term is not confined to mere freedom from bodily restraint."
Bolling v. Sharpe, 347 U. S. 497, 499. See, e. g., Stamey
v. Illinois, 405 U. S. 645.
BOARD OF REGENTS v. ROTH 573
,564 Opinion of the Court
There might be cases in which a State refused to reemploy
a person under such circumstances that interests
in liberty would be implicated. But this is not such a
case.
The State, in declining to rehire the respondent, did
not make any charge against him that might seriously
damage his standing and associations in his community.
It did not base the nonrenewal of his contract on a
charge, for example, that he had been guilty of dishonesty,
or immorality. Had it done so, this would be
a different case. For " [ w] here a person's good name,
reputation, honor, or integrity is at stake because of
what the government is doing to him, notice and an
opportunity to be heard are essential." Wisconsin v.
Constantineau, 400 U. S. 433, 437. Wieman v. Updegraff,
344 U. S. 183, 191; Joint Anti-Fascist Refugee
Committee v. M cGr.ath, 341 U. S. 123; United States
v. Lovett, 328 U. S. 303, 316-317; Peters v. Hobby, 349
U. S. 331, 352 (DouGLAS, J., concurring). See Cafeteria
Workers v. M cElroy, 367 U. S. 886, 898. In such a
case, due process would accord an opportunity to refute
the charge before University officials.12 In the present
case, however, there is no suggestion whatever that the
respondent's "good name, reputation, honor, or integrity"
is at stake.
Similarly, there is no suggestion that the State, in
declining to re-employ the respondent, imposed on him
a stigma or other disability that foreclosed his freedom to
take advantage of other employment opportunities. The
State, for example, did not invoke any regulations to bar
the respondent from all other public employment in
state universities. Had it done so, this, again, would
12 The purpose of such notice and hearing is to provide the person
an opportunity to clear his name. Once a person has cleared his
name at a hearing, his employer, of course, may remain free to
deny him future employment for other reasons.
574 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
be a different case. For "[t]o be deprived not only of
present government employment but of future opportunity
for it certainly is no small injury .... " Joint
Anti-Fascist Refugee Committee v. McGrath, supra, at
185 (Jackson, J., concurring). See Truax v. Raich, 239
U. S. 33, 41. The Court has held, for example, that a
State, in regulating eligibility for a type of professional
employment, cannot foreclose a range of opportunities "in
a manner ... that contravene[s] ... Due Process,"
Schware v. Board of Bar Examiners, 353 U. S. 232, 238,
and, specifically, in a manner that denies the right to a
full prior hearing. Willner v. Committee on Character,
373 U. S. 96, 103. See Cafeteria Workers v. McElroy,
supra, at 898. In the present case, however, this principle
does not come into play.13
To be sure, the respondent has alleged that the nonrenewal
of his contract was based on his exercise of his
right to freedom of speech. But this allegation is not
now before us. The District Court stayed proceedings
on this issue, and the respondent has yet to prove that
13 The District Court made an assumption "that non-retention by
one university or college creates concrete and practical difficulties for
a professor in his subsequent academic career." 310 F. Supp., at
979. And the Court of Appeals based its affirmance of the summary
judgment largely on the premise that "the substantial adverse effect
non-retention is likely to have upon the career interests of an individual
professor" amounts to a limitation on future employment opportunities
sufficient to invoke procedural due process guarantees.
446 F. 2d, at 809. But even assuming, arguendo, that such a "substantial
adverse effect" under these circumstances would constitute a
state-imposed restriction on liberty, the record contains no support
for these assumptions. There is no suggestion of how nonretention
might affect the respondent's future employment prospects. Mere
proof, for example, that his record of nonretention in one job, taken
alone, might make him somewhat less attractive to some other employers
would hardly establish the kind of foreclosure of opportunities
amounting to a deprivation of "liberty." Cf. Schware v. Board of
Bar Examiners, 353 U. S. 232.
BOARD OF REGENTS v. ROTH 575
564 Opinion of the Court
the decision not to rehire him was, in fact, based on his
free speech activities.14
Hence, on the record before us, all that clearly appears
is that the respondent was not rehired for one year at
one university. It, stretches the concept too far to
suggest that a person is deprived of "liberty" when he
simply is not rehired in one job but remains as free as
before to seek another. Cafeteria Workers v. McElroy,
supra, at 895-896.
14 See n. 5, supra. The Court of Appeals, nonetheless, argued that
opportunity for a hearing and a statement of reasons were required
here "as a prophylactic against non-retention decisions improperly
motivated by exercise of protected rights." 446 F. 2d, at 810
( emphasis supplied). Whi!e the Court of Appeals recognized the
lack of a finding that the respondent's nonretention was based on
exercise of the right of free speech, it felt that the respondent's
interest in liberty was sufficiently implicated here because the decision
not to rehire him was made "with a background of controversy
and unwelcome expressions of opinion." Ibid.
When a State would directly impinge upon interests in free speech
or free press, this Court has on occasion held that opportunity for
a fair adversary hearing must precede the action, whether or not
the speech or press interest is clearly protected under substantive
First Amendment standards. Thus, we have required fair notice and
opportunity for an adversary hearing before an injunction is issued
against the holding of rallies and public meetings. Carroll v. Princess
Anne, 393 U. S. 175. Similarly, we have indicated the necessity
of procedural safeguards before a State makes a large-scale seizure
of a person's allegedly obscene books, magazines, and so forth. A
Quantity of Books v. Kansas, 378 U.S. 205; Marcus v. Search Warrant,
367 U. S. 717. Sec Freedman v. Maryland, 380 U. S. 51;
Bantam Books v. Sullivan, 372 U. S. 58. See generally Monaghan,
First Amendment "Due Process," 83 Harv. L. Rev. 518.
In the respondent's case, however, the State has not directly impinged
upon interests in free speech or free press in any way comparable
to a seizure of books or an injunction against meetings.
Whatever may be a teacher's rights of free speech, the interest in
holding a teaching job at a state university, simpliciter, is not itself
a free speech interest.
576 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
III
The Fourteenth Amendment's procedural protection
of property is a safeguard of the security of interests
that a person has already acquired in specific benefits.
These interests-property interests-may take many
forms.
Thus, the Court has held that a person receiving welfare
benefits under statutory and administrative standards
defining eligibility for them has an interest in
continued receipt of those benefits that is safeguarded
by procedural due process. Goldberg v. Kelly, 397 U. S.
254. 1
' See Flemming v. Nestor, 363 U.S. 603,611. Similarly,
in the area of public employment, the Court has
held that a public college professor dismissed from an office
held under tenure provisions, Slochower v. Board of
Education, 350 U. S. 551, and college professors and
15 Goldsmith v. Board of Ta:x Appeals, 270 U. S. 117, is a related
case. There, the petitioner was a lawyer who had been refused admission
to practice before the Board of Tax Appeals. The Board had
"published rules for admission of persons entitled to practice before it,
by which attorneys at law admitted to courts of the United States and
the States, and the Distri,·t of Columbia, as well as certified public
accountants duly qualified under the law of any State or the District,
are made eligible. . . . The rules further provide that the
Board may in its discretion deny admission to any applicant, or suspend
or disbar a.ny person after admission." Id., at 119. The Board
denied admission to the petitioner under its discretionary power,
without a prior hearing and a statement of the reasons for the denial.
Although this Court disposed of the case on other grounds, it stated,
in an opinion by Mr. Chief Justice Taft, that the existence of the
Board's eligibility rules gave the petitioner an interest and claim
to practice before the Board to which procedural due process requirements
applied. It said that the Board's discretionary power
"must be construed to mean the exercise of a discretion to be
exercised after fair invest,igation, with such a notice, hearing and
opportunity to answer for the applicant as would constitute due
process." Id., at 123.
BOARD OF REGENTS v. ROTH 577
564 Opinion of the Court
staff members dismissed during the terms of their contracts,
Wieman v. Updegraff, 344 U.S. 183, have interests
in continued employment that are safeguarded by due
process. Only last year, the Court held that this principle
"proscribing summary dismissal from public employment
without hearing or inquiry required by due
process" also applied to a teacher recently hired without
tenure or a formal contract, but nonetheless with a clearly
implied promise of continued employment. Connell v.
Higginbotham, 403 U. S. 207, 208.
Certain attributes of "property" interests protected
by procedural due process emerge from these decisions.
To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it.
He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement
to it. It is a purpose of the ancient institution
of property to protect those claims upon which people
rely in their daily lives, reliance that must not be arbitrarily
undermined. It is a purpose of the constitutional
right to a hearing to provide an opportunity for
a person to vindicate those claims.
Property interests, of course, are not created by the
Constitution. Rather, they are created and their dimensions
are defined by existing rules or understandings
that stem from an independent source such as state
law- rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits.
Thus, the welfare recipients in Goldberg v. Kelly,
supra, had a claim of entitlement to welfare payments
that was grounded in the statute defining eligibility for
them. The recipients had not yet shown that they
were, in fact, within the statutory terms of eligibility.
But we held that they had a right to a hearing at which
they might attempt to do so.
578 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
Just as the welfare recipients' "property" interest in
welfare payments was created and defined by statutory
terms, so the respondent's "proRerty" interest in employment
at '.Visconsin State University-Oshkosh was created
and defined by the terms of his appointment. Those
terms secured his interest in employment up to June 30,
1969. But the important fact in this case is that they
specifically provided that the respondent's employment
was to terminate on June 30. They did not provide for
contract renewal absent "sufficient cause." Indeed, they
made no provision for renewal whatsoever.
Thus, the terms of the respondent's appointment secured
absolutely no interest in re-employment for the
next year. They supported absolutely no possible claim
of entitlement to re-employment. Nor, significantly, was
there any state statute or University rule or policy that
secured his interest in re-employment or that created any
legitimate claim to it.10 In these circumstances, the respondent
surely had an abstract concern in being rehired,
but he did not have a property interest sufficient to require
the University authorities to give him a hearing when
they declined to renew his contract of employment.
IV
Our analysis of the respondent's constitutional rights
in this case in no way indicates a view that an opportunity
for a hearing or a statement of reasons for nonretention
would, or would not, be appropriate or wise in public
16 To be sure, the respondent does suggest that most teachers hired
on a year-to-year basis by Wisconsin State University-Oshkosh
are, in fact, rehired. But the District Court has not found that
there is anything approaching a "common law" of re-employment,
see Perry v. Sindermann, post, at 602, so strong as to require University
officials to give the respondent a statement of reasons and a
hearing on their decision not to rehire him.
BOARD OF REGENTS v. ROTH 579
564 DouGLAS, J., dissenting
colleges and universities.11 For it is a written Constitution
that we apply. Our role is confined to interpretation
of that Constitution.
We must conclude that the summary judgment for the
respondent should not have been granted, since the respondent
has not shown that he was deprived of liberty
or property protected by the Fourteenth Amendment.
The judgment of the Court of Appeals, accordingly, is
reversed and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
MR. JUSTICE POWELL took no part in the decision of
this case.
[For concurring opinion of MR. CHIEF JusTICE BuRGER,
see post, p. 603.]
[For dissenting opinion of MR. JusTICE BRENNAN, see
post, p. 604.]
MR. JUSTICE DOUGLAS, dissenting.
Respondent Roth, like Sindermann in the companion
case, had no tenure under Wisconsin law and, unlike
Sindermann, he had had only one year of teaching
at Wisconsin State University-Oshkosh-where during
1968-1969 he had been Assistant Professor of Political
Science and International Studies. Though Roth was
rated by the faculty as an excellent teacher, he had
publicly criticized the administration for suspending an
entire group of 94 black students without determining
individual guilt. He also criticized the university's regime
as being authoritarian and autocratic. He used
his classroom to discuss what was being done about the
17 See, e. g., Report of Committee A on Academic Freedom and
Tenure, Procedural Standards in the Renewal or Nonrenewal of
Faculty Appointments, 56 AAUP Bulletin No. 1, p. 21 (Spring 1970).
580 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408U.S.
black episode; and one day, instead of meeting his
class, he went to the meeting of the Board of Regents.
In this case, as in Sindermann, an action was started in
Federal District Court under 42 U. S. C. § 1983 1 claiming
in part that the decision of the school authorities
not to rehire was in retaliation for his expression of
op1mon. The District Court, in partially granting
Roth's motion for summary judgment, held that the
Fourteenth Amendment required the university to give
a hearing to teachers whose contracts were not to be
renewed and to give reasons for its action. 310 F. Supp.
972, 983. The Court of Appeals affirmed. 446 F. 2d
806.
Professor Will Herberg, of Drew University, in writing
of "academic freedom" recently said:
"[I] t is sometimes conceived as a basic constitutional
right guaranteed and protected under the
First Amendment.
"But, of course, this is not the case. Whereas
a man's right to speak out on this or that may
be guaranteed and protected, he can have no imaginable
human or constitutional right to remain a
member of a university faculty. Clearly, the right
to academic freedom is an acquired one, yet an
acquired right of such value to society that in the
minds of many it has verged upon the constitutional."
Washington Sunday Star, Jan. 23, 1972,
B-3, col. 1.
1 Section 1983 reads as follows:
"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."
BOARD OF REGENTS v. ROTH 581
564 DOUGLAS, J., dissenting
There may not be a constitutional right to continued
employment if private schools and colleges are involved.
But Prof. Her berg's view is not correct when public
schools move against faculty members. For the First
Amendment, applicable to the States by reason of the
Fourteenth Amendment, protects the individual against
state action when it comes to freedom of speech and of
press and the related freedoms guaranteed by the First
Amendment; and the Fourteenth protects "liberty" and
"property" as stated by the Court in Sindermann.
No more direct assault on academic freedom can
be imagined than for the school authorities to be
allowed to discharge a teacher because of his or her
philosophical, political, or ideological beliefs. The same
may well be true of private schools, if through the
device of financing or other umbilical cords they become
instrumentalities of the State. Mr. Justice Frankfurter
stated the constitutional theory in Sweezy v. New Hampshire,
354 U. S. 234, 261-262 ( concurring in result):
"Progress in the natural sciences is not remotely
confined to findings made in the laboratory. Insights
into the mysteries of nature are born of hypothesis
and speculation. The more so is this true in the
pursuit of understanding in the groping endeavors
of what are called the social sciences, the concern
of which is man and society. The problems that are
the respective preoccupations of anthropology, economics,
law, psychology, sociology and related areas
of scholarship are merely departmentalized dealing,
by way of manageable division of analysis,
with interpenetrating aspects of holistic perplexities.
For society's good-if understanding be an
essential need of society-inquiries into these problems,
speculations about them, stimulation in others
of reflection upon them, must be left as unfettered
582 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408U. S.
as possible. Political power must abstain from intrusion
into this activity of freedom, pursued in the
interest of wise government and the people's wellbeing,
except for reasons that are exigent and
obviously compelling."
We repeated that warning in Keyi,shian v. Board of
Regents, 385 U. S. 589, 603:
"Our Nation is deeply committed to safeguarding
academic freedom, which is of transcendent value
to all of us and not merely to the teachers concerned.
That freedom is therefore a special concern
of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over
the classroom."
When a violation of First Amendment rights is alleged,
the reasons for dismissal or for nonrenewal of an employment
contract must be examined to see if the
reasons given are only a cloak for activity or attitudes
protected by the Constitution. A statutory analogy is
present under the National Labor Relations Act, 29
U. S. C. § 151 et seq. While discharges of employees
for "cause" are permissible (Fibreboard Corp. v. NLRB,
379 U. S. 203, 217), discharges because of an employee's
union activities are banned by § 8 (a) (3), 29 U. S. C.
§ 158 (a) (3). So the search is to ascertain whether
the stated ground was the real one or only a pretext.
See J. P. Stevens & Co. v. NLRB, 380 F. 2d 292, 300.
In the case of teachers whose contracts are not· renewed,
tenure is not the critical issue. In the Sweezy
case, the teacher, whose First Amendment rights we
honored, had no tenure but was only a guest lecturer.
In the Keyishian case, one of the petitioners (Keyishian
himself) had only a "one-year-term contract"
that was not renewed. 385 U. S., at 592. In Shelton
v. Tucker, 364 U. S. 479, one of the petitioners was
BOARD OF REGENTS v. ROTH 583
564 DouGLAS, J., dissenting
a teacher whose "contract for the ensuing school year
was not renewed" (id., at 483) and two others who
refused to comply were advised that it made "impossible
their re-employment as teachers for the following
school year." Id., at 484. The oath required in
Keyishian and the affidavit listing memberships required
in Shelton were both, in our view, in violation of First
Amendment rights. Those cases mean that conditioning
renewal of a teacher's contract upon surrender of First
Amendment rights is beyond the power of a State.
There is sometimes a conflict between a claim for
First Amendment protection and the need for orderly
administration of the school system, as we noted in
Pickering v. Board of Education, 391 U. S. 563, 569.
That is one reason why summary judgments in this
class of cases are seldom appropriate. Another reason
is that careful fact finding is of ten necessary to know
whether the given reason for nonrenewal of a teacher's
contract is the real reason or a feigned one.
It is said that since teaching in a public school is
a privilege, the State can grant it or withhold it on conditions.
We have, however, rejected that thesis in numerous
cases, e. g., Graham v. Richardson, 403 U. S.
365, 374. See Van Alstyne, The Demise of the
Right-Privilege Distinction in Constitutional Law, 81
Harv. L. Rev. 1439 (1968). In Hannegan v. Esquire, Inc.,
327 U. S. 146, 156, we said that Congress may not by
withdrawal of mailing privileges place limitations on
freedom of speech which it could not do constitutionally
if done directly. We said in American Communicatfons
Assn. v. Douds, 339 U. S. 382, 402, that
freedom of speech was abridged when the only restraint
on its exercise was withdrawal of the privilege to invoke
the facilities of the National Labor Relations Board.
In Wieman v. Updegraff, 344 U. S. 183, we held
that an applicant could not be denied the opportunity
584 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 U.S.
for public employment because he had exercised his
First Amendment rights. And in Speiser v. Randall,
357 U. S. 513, we held that a denial of a tax
exemption unless one gave up his First Amendment
rights was an abridgment of Fourteenth Amendment
rights.
As we held in Speiser v. Randall, supra, when a State
proposes to deny a privilege to one who it alleges has
engaged in unprotected speech, Due Process requires
that the State bear the burden of proving that the
speech was not protected. "[T] he 'protection of the individual
against arbitrary action' . . . [isJ the very
essence of due process," Slochower v. Board of Education,
350 U. S. 551, 559, but where the State is
allowed to act secretly behind closed doors and without
any notice to those who are affected by its actions, there
is no check against the possibility of such "arbitrary
action."
Moreover, where "important interests" of the citizen
are implicated (Bell v. Burson, 402 U. S. 535, 539) they
are not to be denied or taken away without due process.
Ibid. Bell v. Burson involved a driver's license.
But also included are disqualification for unemployment
compensation (Sherbert v. Verner, 374 U. S.
398), discharge from public employment (Slochower
v. Board of Education, supra) , denial of tax exemption
(Speiser v. Randall, supra), and withdrawal of welfare
benefits (Goldberg v. Kelly, 397 U. S. 254). And
see Wisconsin v. Constantineau, 400 U. S. 433. We
should now add that nonrenewal of a teacher's contract,
whether or not he has tenure, is an entitlement of the
same importance and dignity.
Cafeteria Workers v. M cElroy, 367 U. S. 886, is not
opposed. It held that a cook employed in a cafeteria in
a military installation was not entitled to a hearing prior
BOARD OF REGENTS v. ROTH 585
564 DouGLAS, J., dissenting
to the withdrawal of her access to the facility. Her
employer was prepared to employ her at another of its
restaurants, the withdrawal was not likely to injure her
reputation, and her employment opportunities elsewhere
were not impaired. The Court held that the very limited
individual interest in this one job did not outweigh
the Government's authority over an important federal
military establishment. N onrenewal of a teacher's
contract is tantamount in effect to a dismissal and the
consequences may be enormous. Nonrenewal can be a
blemish that turns into a permanent scar and effectively
limits any chance the teacher has of being rehired as a
teacher, at least in his State.
If this nonrenewal implicated the First Amendment,
then Roth was deprived of constitutional rights because
his employment was conditioned on a surrender of
First Amendment rights; and, apart from the First
Amendment, he was denied due process when he received
no notice and hearing of the adverse action contemplated
against him. Without a statement of the reasons for
the discharge and an opportunity to rebut those reasons-
both of which were refused by petitioners-there
is no means short of a lawsuit to safeguard the right
not to be discharged for the exercise of First Amendment
guarantees.
The District Court held, 310 F. Supp., at 979- 980:
"Substantive constitutional protection for a university
professor against non-retention in violation
of his First Amendment rights or arbitrary nonretention
is useless without procedural safeguards.
I hold that minimal procedural due process includes
a statement of the reasons why the university intends
not to retain the professor, notice of a hearing
at which he may respond to the stated reasons, and
a hearing if the professor appears at the appointed
586 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 u. s.
time and place. At such a hearing the professor
must have a reasonable opportunity to submit evidence
relevant to the stated reasons. The burden
of going forward and the burden of proof rests with
the professor. Only if he makes a reasonable showing
that the stated reasons are wholly inappropriate
as a basis for decision or that they are wholly without
basis in fact would the university administration
become obliged to show that the stated reasons are
not inappropriate or that they have a basis in fact."
It was that procedure that the Court of Appeals approved.
446 F. 2d, at 809-810. The Court of Appeals
also concluded that though the § 1983 action was pending
in court, the court should stay its hand untiI the
academic procedures had been completed." As stated by
the Court of Appeals in Sindermann v. Perry, 430 F. 2d
939 (CA5):
"School-constituted review bodies are the most
appropriate forums for initially determining issues
of this type, both for the convenience of the parties
and in order to bring academic expertise to bear in
resolving the nice issues of administrative discipline,
teacher competence and school policy, which so frequently
must be balanced in reaching a proper determination."
Id., at 944-945.
That is a permissible course for district courts to take,
though it does not relieve them of the final determination
2 Such a procedure would not be contrary to the well-settled rule
that § 1983 actions do not require exhaustion of other remedies.
See, e. g., Wilwording v. Swenson, 404 U.S. 249 (1971); Damico v.
California, 389 U. S. 416 (1967); McNeese v. Board of Education,
373 U.S. 668 (1963); Monroe v. Pape, 365 U.S. 167 (1961). One
of the allegations in the complaint was that re~pondent was denied
any effective state remedy, and the District Court's staying its
hand thus furthered rather than thwarted the purposes of § 1983.
BOARD OF REGENTS v. ROTH 587
564 MARSHALL, J., dissenting
whether nonrenewal of the teacher's contract was in retaliation
for the exercise of First Amendment rights or a
denial of due process.
Accordingly I would affirm the judgment of the Court
of Appeals.
MR. JusTICE MARSHALL, dissenting.
Respondent was hired as an assistant professor of
political science at Wisconsin State University-Oshkosh
for the 1968-1969 academic year. During the course of
that year he was told that he would not be rehired for
the next academic term, but he was never told why.
In this case, he asserts that the Due Process Clause of
the Fourteenth Amendment to the United States Constitution
entitled him to a statement of reasons and a
hearing on the University's decision not to rehire him
for another year.1 This claim was sustained by the
District Court, which granted respondent summary judgment,
310 F. Supp. 972, and by the Court of Appeals
which affirmed the judgment of the District Court. 446
F. 2d 806. This Court today reverses the judgment of
the Court of Appeals and rejects respondent's claim.
I dissent.
While I agree with Part I of the Court's opinion, setting
forth the proper framework for consideration of the
issue presented, and also with those portions of Parts
II and III of the Court's opinion that assert that a
public employee is entitled to procedural due process
whenever a State stigmatizes him by denying employment,
or injures his future employment prospects severely,
or whenever the State deprives him of a prop-
1 Respondent has also alleged that the true reason for the decision
not to rehire him was to punish him for certain statements critical
of the University, As the Court points out, this issue is not b€forc
us at the present. time.
588 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 u. s.
erty interest, I would go further than the Court does
in defining the terms "liberty" and "property."
The prior decisions of this Court, discussed at length
in the opinion of the Court, establish a principle that is
as obvious as it is compelling-i. e., federal and state
governments and gov~rnmental agencies are restrained
by the Constitution from acting arbitrarily with respect
to employment opportunities that they either offer or
control. Hence, it is now firmly established that whether
or not a private employer is free to act capriciously or
unreasonably with respect to employment practices, at
least absent statutory 2 or contractual 3 controls, a government
employer is different. The government may
only act fairly and reasonably.
This Court has long maintained that "the right to
work for a living in the common occupations of the
community is of the very essence of the personal freedom
and opportunity that it was the purpose of the
[Fourteenth] Amendment to secure." Truo.x v. Raich,
230 U. S. 33, 41 (1915) (Hughes, J.). See also Meyer
v. Nebraska, 262 U. S. 390, 399 ( 1923) . It has also established
that the fact that an employee has no contract
guaranteeing work for a specific future period does not
mean that as the result of action by the government he
may be "discharged at any time for any reason or for
no reason." Truax v. Raich, supra, at 38.
In my view, every citizen who applies for a government
job is entitled to it unless the government can
establish some reason for denying the employment. This
is the "property" right that I believe is protected by
the Fourteenth Amendment and that cannot be denied
"without due process of law." And it is also liberty-
2 See, e. g., Griggs v. Duke Power Co., 401 U. S. 424 (1971); 42
U. S. C. § 2000e.
3 Cf. Note, Procedural "Due Process" in Union Disciplinary Proceedings,
57 Yale L. J. 1302 ( 1948).
BOARD OF REGENTS v. ROTH 589
564 MARSHALL, J., dissenting
liberty to work-which is the "very essence of the personal
freedom and opportunity" secured by the Fourteenth
Amendment.
This Court has often had occasion to note that the
denial of public employment is a serious blow to any
citizen. See, e. g., Joint Anti-Fascu;t Refugee Committee
v. McGrath, 341 U. S. 123, 185 (1951) (Jackson, J.,
concurring); United States v. Lovett, 328 U. S. 303,
316-317 (1946). Thus, when an application for public
employment is denied or the contract of a government
employee is not renewed, the government must say why,
for it is only when the reasons underlying government
action are known that citizens feel secure and protected
against arbitrary government action.
Employment is one of the greatest, if not the greatest,
benefits that governments offer in modern-day life.
When something as valuable as the opportunity to work
is at stake, the government may not reward some citizens
and not others without demonstrating that its actions
are fair and equitable. And it is procedural due
process that is our fundamental guarantee of fairness,
our protection against arbitrary, capricious, and unreasonable
government action.
MR. JUSTICE DOUGLAS has written that:
"It is not without significance that most of the
provisions of the Bill of Rights are procedural. It
is procedure that spells much of the difference between
rule by law and rule by whim or caprice.
Steadfast adherence to strict procedural safeguards
is our main assurance that there will be equal justice
under law." Joint Anti-Fasc-ist Refugee Committee
v. McGrath, supra, at 179 ( concurring
opinion).
And Mr. Justice Frankfurter has said that " [ t] he history
of American freedom is, in no small measure, the
590 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 U.S.
history of procedure." Malinski v. New York, 324 U.S.
401, 414 (1945) (separate opinion). With respect to occupations
controlled by the government, one lower court
has said that "[t]he public has the right to expect its
officers ... to make adjudications on the basis of merit.
The first step toward insuring that these expectations
are realized is to require adherence to the standards of
due process; absolute and uncontrolled discretion invites
abuse." Hornsby v. Allen, 326 F. 2d 605, 610 (CA5
1964).
We have often noted that procedural due process
means many different things in the numerous contexts
in which it applies. See, e. g., Goldberg v. Kelly, 397
U. S. 254 (1970); Bell v. Burson, 402 U. S. 535 (1971).
Prior decisions have held that an applicant for admission
to practice as an attorney before the United States
Board of Tax Appeals may not be rejected without a
statement of reasons and a chance for a hearing on disputed
issues of fact; • that a tenured teacher could not
be summarily dismissed without notice of the reasons
and a hearing; 5 that an applicant for admission to a
state bar could not be denied the opportunity to practice
law without notice of the reasons for the rejection
of his application and a hearing; 6 and even that a substitute
teacher who had been employed only two months
could not be dismissed merely because she refused to
take a loyalty oath without an inquiry into the specific
facts of her case and a hearing on those in dispute.' I
would follow these cases and hold that respondent was
denied due process when his contract was not renewed
and he was not informed of the reasons and given an
opportunity to respond.
• Goldsmith v. Board of Tax Appeals, 270 U.S. 117 (1926).
5 Slochower v. Board of Education, 350 U. S. 551 (1956).
6 Willner v. Committee on Character, 373 U.S. 96 ( 1963).
7 Connell v. Higginbotham, 403 U.S. 207 (1971).
BOARD OF REGENTS v. ROTH 591
564 MARSHALL, J ., dissenting
It may be argued that to provide procedural due
process to all public employees or prospective employees
would place an intolerable burden on the machinery of
government. Cf. Goldberg v. Kelly, supra. The short
answer to that argument is that it is not burdensome to
give reasons when reasons exist. Whenever an application
for employment is denied, an employee is discharged,
or a decision not to rehire an employee is made,
there should be some reason for the decision. It can
scarcely be argued that government would be crippled
by a requirement that the reason be communicated to
the person most directly affected by the government's
action.
Where there are numerous applicants for jobs, it is
likely that few will choose to demand reasons for not
being hired. But, if the demand for reasons is exceptionally
great, summary procedures can be devised that
would provide fair and adequate information to all persons.
As long as the government has a good reason
for its actions it need not fear disclosure. It is only
where the government acts improperly that procedural
due process is truly burdensome. And that is precisely
when it is most necessary.
It might also be argued that to require a hearing
and a statement of reasons is to require a useless act,
because a government bent on denying employment to
one or more persons will do so regardless of the procedural
hurdles that are placed in its path. Perhaps
this is so, but a requirement of procedural regularity
at least renders arbitrary action more difficult. Moreover,
proper procedures will surely eliminate some of
the arbitrariness that results, not from malice, but from
innocent error. "Experience teaches ... that the affording
of procedural safeguards, which by their nature
serve to illuminate the underlying facts, in itself often
operates to prevent erroneous decisions on the merits
592 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408U. S.
from occurring." Silver v. New York Stock Exchange,
373 U.S. 341, 366 (1963). When the government knows
it may have to justify its decisions with sound reasons,
its conduct is likely to be more cautious, careful, and
correct.
Professor Gellhorn put the argument well:
"In my judgment, there is no basic division of interest
between the citizenry on the one hand and
officialdom on the other. Both should be interested
equally in the quest for procedural safeguards. I
echo the late Justice JACKSON in saying: 'Let it
not be overlooked that due process of law is not for
the sole benefit of an accused. It is the best insurance
for the Government itself against those blunders
which leave lasting stains on a system of
justice'-blunders which are likely to occur when
reasons need not be given and when the reasonableness
and indeed legality of judgments need not
be subjected to any appraisal other than one's
own .... " Summary of Colloquy on Administrative
Law, 6 J. Soc. Pub. Teachers of Law 70, 73
(1961).
Accordingly, I dissent.
PERRY v. SINDERMANN
Syllabus
PERRY ET AL. v. SINDERMANN
593
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 70-36. Argued January 18, 1972-Decided June 29, 1972
Respondent was ,employed in a state college system for 10 years,
the last four as a junior college professor under a. series of oneyear
written contracts. The Regents declined to renew his
employment for the next yea.r, without giving him an explanation
or prior hearing, Respondent then brought this action in the
District Court, alleging that the decision not to rehire him was
based on respondent's public criticism of the college administration
and thus infringed his free speech right, and that the Regents'
failure to afford him a hearing violated his procedura.l due
process right. The District Court granted summary judgment, for
petitioners, concluding that respondent's contract had terminated
and the junior college had not adopted the tenure system. The
Court of Appeals reversed on the grounds that, despite lack of
tenure, nonrenewal of respondent's contract would violate the
Fourteenth Amendment if it. was in fact. based on his protected
free speech, and that if respondent could show that he had an
"expectancy" of re-employment, the failure to allow him an
opportunity for a hearing would violate the procedura.l due process
guarantee. Held:
1. Lack of a contractual or tenure right to re-employment, taken
alone, did not defea.t respondent's claim that the nonrenewal of
his contract violated his free speech right under the First and
Fourteenth Amendments. The District Court therefore erred in
foreclosing determination of the contested issue whether the decision
not to renew was based on respondent's exercise of his right of
free speech. Pp. 596-598.
2. 'Though a subjective "expectancy" of tenure is not protected
by procedural due process, respondent's allegation that. the college
had a de facto tenure policy, arising from rules and understandings
offirii1.lly promulgated and fostered, entitled him to an opportunity
of proving the legit.imacy of his claim to job tenure. Such
proof would obligate the college to afford him a requested hearing
where he could be informed of the grounds for his nonretention
and challenge their sufficiency. Pp. 599-603.
430 F. 2d 939, affirmed.
594 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
STEWART, J,, delivered the opinion of the Court, in which BURGER,
C. J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BURGER,
C. J., filed a concurring opinion, post, p. 603. BREK~AN, J., filed an
opinion dissenting in part, in which DoUGLAs, J., joined, post, p. 604.
:v!ARSHALL, J ., filed an opinion dissenting in part, post, p. 605.
PowELL, J., took no part in the decision of the case.
W. 0. Shafer argued the cause for petitioners. With
him on the brief was Lucius D. Bunton.
Michael H. Gottesman argued the cause for respondent.
With him on the brief were George H. Cohen and Warren
Burnett.
Briefs of amici curiae urging affirmance were filed by
David Rubin and Richard J. Medalie for the National
Education Association; by John Ligtenberg and Andrew
J. Leahy for the American Federation of Teachers; and
by Herman I. Orentlicher and William W. Van Alstyne
for the American Association of University Professors.
MR. JusTICE STEWART delivered the opinion of the
Court.
From 1959 to 1969 the respondent, Robert Sindermann,
was a teacher in the state college system of the State of
Texas. After teaching for two years at the University
of Texas and for four years at San Antonio Junior College,
he became a professor of Government and Social
Science at Odessa Junior College in 1965. He was employed
at the college for four successive years, under a
series of one-year contracts. He was successful enough
to be appointed, for a time, the cochairman of his
department.
During the 1968-1969 academic year, however, controversy
arose between the respondent and the college
administration. The respondent was elected president
of the Texas Junior College Teachers Association. In
this capacity, he left his teaching duties on several occasions
to testify before committees of the Texas LegisPERRY
v. SINDERMAN~ 595
593 Opinion of the Court
lature, and he became involved in public disagreements
with the policies of the college's Board of Regents. In
particular, he aligned himself with a group advocating
the elevation of the college to four-year status-a change
opposed by the Regents. And, on one occasion, a newspaper
advertisement appeared over his name that was
highly critical of the Regents.
Finally, in May 1969, the respondent's one-year employment
contract terminated and the Board of Regents
voted not to offer him a new contract for the next academic
year. The Regents issued a press release setting
forth allegations of the respondent's insubordination.'
But they provided him no official statement of the reasons
for the nonrenewal of his contract. And they allowed
him no opportunity for a hearing to challenge the
basis of the nonrenewal.
The respondent then brought this action in Federal
District Court. He alleged primarily that the Regents'
decision not to rehire him was based on his public criticism
of the policies of the college administration and
thus infringed his right to freedom of speech. He also
alleged that their failure to provide him an opportunity
for a hearing violated the Fourteenth Amendment's
guarantee of procedural due process. The petitionersmembers
of the Board of Regents and the president of
the college------denied that their decision was made in
retaliation for the respondent's public criticism and
argued that they had no obligation to provide a hearing.
2 On the basis of these bare pleadings and three
1 The press release stated, for example, that the respondent had
defied his superiors by attending legislative committee meetings
when college officials had specifically refused to permit him to leave
his classes for that purpose.
2 The petitioners claimed, in their motion for Rnrnrn11.ry judgment,
that the decision not to retain the respondent was really
based on his insubordinate conduct. See n. 1, supra.
596 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
brief affidavits filed by the respondent,3 the District
Court granted summary judgment for the petitioners.
It concluded that the respondent had "no cause of action
against the [petitioners] since his contract of employment
terminated May 31, 1969, and Odessa Junior
College has not adopted the tenure system." 4
The Court of Appeals reversed the judgment of the
District Court. 430 F. 2d 939. First, it held that,
despite the respondent's lack of tenure, the nonrenewal
of his contract would violate the Fourteenth Amendment
if it in fact was based on his protected free
speech. Since the actual reason for the Regents' decision
was "in total dispute" in the pleadings, the
court remanded the case for a full hearing on this contested
issue of fact. Id., at 942-943. Second, the Court
of Appeals held that, despite the respondent's lack
of tenure, the failure to allow him an opportunity for a
hearing would violate the constitutional guarantee of
procedural due process if the respondent could show
that he had an "expectancy" of re-employment. It,
therefore, ordered that this issue of fact also be aired
upon remand. Id., at 943-944. We granted a writ of
certiorari, 403 U. S. 917, and we have considered this
case along with Board of Regents v. Roth, ante, p. 564.
I
The first question presented is whether the respondent's
laek of a contractual or tenure right to re-employment,
taken alone, defeats his claim that the nonrenewal
of his contract violated the First and Fourteenth Amendments.
We hold that it does not.
3 The petitioners, for whom summary judgment was granted, submitted
no affidavits whatever. The respondent's affidavits were
very short and essentially repeated the general allegations of his
complaint.
4 The findings and conclusions of the .District Court--only several
lines long-are not officially reported.
l'ERRY v. SINDERMANN" 59i
593 Opinion of the Court
For at least a quarter-century, this Court has made
clear that even though a person has no "right" to a valuable
governmental benefit and even though the government
may deny him the benefit for any number of reasons,
there are some reasons upon which the government may
not rely. It may not deny a benefit to a person on a basis
that infringes his constitutionally protected interestsespecially,
his interest in freedom of speech. For if the
government could deny a benefit to a person because of
his constitutionally protected speech or associations, his
exercise of those freedoms would in effect be penalized and
inhibited. This would allow the government to "produce
a result which [it] could not command directly."
Speiser v. Randall, 357 U.S. 513, 526. Such interference
with constitutional rights is impermissible.
We have applied this general principle to denials of
tax exemptions, Speiser v. Randall, supra, unemployment
benefits, Sherbert v. Verner, 374 U. S. 398, 404-405,
and welfare payments, Shapiro v. Thompson, 394 U. S.
618, 627 n. 6; Graham, v. Richardson, 403 U.S. 365, 374.
But, most often, we have applied the principle to denials
of public employment. United Public Workers v. Mitchell,
330 U. S. 75, 100; Wieman v. Updegraff, 344 U. S.
183, 192; Shelton v. Tucker, 364 U. S. 479, 485-486;
Torcaso v. Watkins, 367 U. S. 488, 495-496; Cafeteria
Workers v. McElroy, 367 U.S. 886,894; Cramp v. Board
of Public Instruction, 368 U. S. 278, 288; Baggett v.
Bullitt, 377 U. S. 360; Elfbrandt v. Russell, 384 U. S. 11,
17; Keyishian v. Board of Regents, 385 U. S. 589, 605-
606; Whitehill v. Elkins, 389 U.S. 54; United States v.
Robel, 389 U. S. 258; Pickering v. Board of Education,
391 U. S. 563, 568. We have applied the principle regardless
of the public employee's contractual or other
claim to a job. Compare Pickering v. Board of Education,
suJ)Ta, with She,lton v. Tucker, supra.
Thus, the respondent's lack of a contractual or tenure
598 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
"right" to re-employment for the 1969-1970 academic
year is immaterial to his free speech claim. Indeed,
twice before, this Court has specifically held that the
nonrenewal of a nontenured public school teacher's
one-year contract may not be predicated on his exercise
of First and Fourteenth Amendment rights. Shelton
v. Tucker, supra; Keyishian v. Board of Regents,
supra. We reaffirm those holdings here.
In this case, of course, the respondent has yet to
show that the decision not to renew his contract was,
in fact, made in retaliation for his exercise of the constitutional
right of free speech. The District Court foreclosed
any opportunity to make this showing when it
granted summary judgment. Hence, we cannot now
hold that the Board of Regents' action was invalid.
But we agree with the Court of Appeals that there
is a genuine dispute as to "whether the college refused
to renew the teaching contract on an impermissible
basis-as a reprisal for the exercise of constitutionally
protected rights." 430 F. 2d, at 943. The respondent
has alleged that his nonretention was based on
his testimony before legislative committees and his other
public statements critical of the Regents' policies. And
he has alleged that this public criticism was within the
First and Fourteenth Amendments' protection of freedom
of speech. Plainly, these allegations present a
bona fide constitutional claim. For this Court has held
that a teacher's public criticism of his superiors on
matters of public concern may be constitutionally protected
and may, therefore, be an impermissible basis for
termination of his employment. Pickering v. Board of
Education, supra.
For this reason we hold that the grant of summary
judgment against the respondent, without full exploration
of this issue, was improper.
PERRY v. SINDERMANN 599
593 Opinion of the Court
II
The respondent's lack of formal contractual or tenure
security in continued employment at Odessa Junior College,
though irrelevant to his free speech claim, is highly
relevant to his procedural due process claim. But it may
not be entirely dispositive.
We have held today in Boar.d of Regents v. Roth, ante,
p. 564, that the Constitution does not require opportunity
for a hearing before the nonrenewal of a nontenured
teacher's contract, unless he can show that the decision
not to rehire him somehow deprived him of an interest
in "liberty" or that he had a "property" interest in continued
employment, despite the lack of tenure or a
formal contract. In Roth the teacher had not made
a showing on either point to justify summary judgment
in his favor.
Similarly, the respondent here has yet to show that he
has been deprived of an interest that could invoke procedural
due process protection. As in Roth, the mere
showing that he was not rehired in one particular job,
without more, did not amount to a showing of a loss of
liberty.5 Nor did it amount to a showing of a loss of
property.
But the respondent's allegations-which we must construe
most favorably to the respondent at this stage of
the litigation-do raise a genuine issue as to his interest in
continued employment at Odessa Junior College. He alleged
that this interest, though not secured by a formal
contractual tenure provision, was secured by a no less
binding understanding fostered by the college administra-
5 The Court of Appeals suggested that the respondent might have
a due process right to some kind of hearing simply if he a,sserts to
college officials that their decision was based on his constitutionally
protected conduct. 430 F. 2d, at 944. We have rejected this approach
in Board of Regents v. Roth, ante, at 575 n. 14.
600 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
tion. In particular, the respondent alleged that the college
had a de facto tenure program, and that he had tenure
under that program. He claimed that he and others
legitimately relied upon an unusual provision that had
been in the college's official Faculty Guide for many
years:
"Teacher Tenure: Odessa College has no tenure
system. The Administration of the College wishes
the faculty member to feel that he has permanent
tenure as long as his teaching services are satisfactory
and as long as he displays a cooperative
attitude toward his co-workers and his superiors,
and as long as he is happy in his work."
Moreover, the respondent claimed legitimate reliance
upon guidelines promulgated by the Coordinating Board
of the Texas College and University System that provided
that a person, like himself, who had been employed
as a teacher in the state college and university system
for seven years or more has some form of job tenure.0
6 The relevant portion of the guidelines, adopted as "Policy Paper
1" by the Coordinating Board on October 16, 1967, reads:
"A. Tenure
"Tenure means assurance to an experienced faculty member that
he may expect to continue in his academic position unless adequate
cause for dismissal is demonstrated in a fair hearing, following
established procedures of due process.
"A specific system of faculty tenure undergirds the integrity of
each academic institution. In the Texas public colleges and universities,
this tenure system should have these components:
"(1) Beginning with appointment to the rank of full-time instructor
or a higher rnnk, the probationary period for a faculty
member shall not exceed seven years, including within this period
appropriate full-time service in all institutions of higher education.
This is subject to the provision that when, after a term of probationary
service of more than three years in one or more institutions, a
faculty member is employed by another institution, it may be agreed
in writing that his new appointment is for a probationary period
PERRY i•. STNDERMANN 601
593 Opinion of the Court
Thus, the respondent offered to prove that a teacher with
his long period of service at this particular State College
had no less a "property" interest in continued employment
than a formally tenured teacher at other colleges,
and had no less a procedural due process right to a statement
of reasons and a hearing before college officials
upon their decision not to retain him.
We have made clear in Roth, supra, at 571-572, that
"property" interests subject to procedural due process protection
are not limited by a few rigid, technical forms.
Rather, "property" denotes a broad range of interests
that are secured by "existing rules or understandings."
Id., at 577. A person's interest in a benefit is a "property"
interest for due process purposes if there are such
rules or mutually explicit understandings that support his
claim of entitlement to the benefit and that he may invoke
at a hearing. Ibid.
A written contract with an explicit tenure provision
clearly is evidence of a formal understanding that supports
a teacher's claim of entitlement to continued employment
unless sufficient "cause" is shown. Yet absence
of such an explicit contractual provision may not always
foreclose the possibility that a teacher has a "property"
interest in re-employment. For example, the law of contracts
in most, if not all, jurisdictions long has employed
of not more than four years ( even though thereby the person's total
probationary period in the academic profession is extended beyond
the normal maximum of seven years).
"(3) Adequate cause for dismissal for a faculty member with tenure
may be established by demonstrating professional incompetence,
moral turpitude, or gross neglect of professional responsibilities."
The respondent alleges that, because he has been employed as a
"full-time instructor" or professor within the Texas College and
University System for 10 years, he should have "tenure" under
these provisions.
602 OCTOBER TERM, 1971
Opimon of the Court 408U.S.
a process by which agreements, though not formalized
in writing, may be "implied." 3 A. Corbin on Contracts
§ § 561-572A ( 1960). Explicit contractual provisions
may be supplemented by other agreements implied from
"the promisor's words and conduct in the light of the
surrounding circumstances.'' Id., at§ 562. And, "[t]he
meaning of [the promisor's] words and acts is found by
relating them to the usage of the past." Ibid.
A teacher, like the respondent, who has held his position
for a number of years, might be able to show from
the circumstances of this service-and from other relevant
facts that he has a. legitimate claim of entitlement to
job tenure. Just as this Court has found there to be a
"common law of a particular industry or of a particular
plant" that may supplement a collective-bargaining agreement,
Steelworkers v. Warrior & Gulf Co., 363 U.S. 574,
579, so there may be an unwritten "common law" in a
particular university that certain employees shall have
the equivalent of tenure. This is particularly likely in a
college or university, like Odessa Junior College, that has
no explicit tenure system even for senior members of its
faculty, but that nonetheless may have created such a
system in practice. See C. Byse & L. Joughin, Tenure in
American Higher Education 17-28 (1959 ).7
In this case, the respondent has alleged the existence
of rules and understandings, promulgated and fostered
by state officials, that may justify his legitimate claim
of entitlement to continued employment absent "suf-
7 We do not now hold that the respondent has any such legitimate
claim of entitlement to job tenure. For "[p]roperty interests ...
are not created by the Constitution . Rather, they are created and
their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law .... " Board of
Regents v. Roth, supra, at 577. If it is the law of Texas that a
teacher in the respondent's position has no contractual or other
claim to job tenure, the respondent's claim would be defeated.
PERRY v. SINDERMANN 603
593 BURGER, C. J., concurring
ficient cause." We disagree with the Court of Appeals
insofar as it held that a mere subjective "expectancy" is
protected by procedural due process, but we agree that
the respondent must be given an opportunity to prove the
legitimacy of his claim of such entitlement in light of
"the policies and practices of the institution." 430 F. 2d,
at 943. Proof of such a property interest would not, of
course, entitle him to reinstatement. But such proof
would obligate college officials to grant a hearing at his
request, where he could be informed of the grounds for
his nonretention and challenge their sufficiency.
Therefore, while we do not wholly agree with the opinion
of the Court of Appeals, its judgment remanding
this case to the District Court is
Affirmed.
MR. JUSTICE PowELL took no part in the decision of
this case.
MR. CHIEF JusTICE BURGER, concurring.*
I concur in the Court's judgments and opinions in
Sindermann and Roth, but there is one central point in
both decisions that I would like to underscore since it may
have been obscured in the comprehensive discussion of the
cases. That point is that the relationship between a state
institution and one of its teachers is essentially a matter
of state concern and state law. The Court holds today
only that a state-employed teacher who has a right to
re-employment under state law, arising from either an
express or implied contract, has, in turn, a right guaranteed
by the Fourteenth Amendment to some form of
prior administrative or academic hearing on the cause
*This opinion applies also to No. 71-162, Board of Regents of
State Colleges et al. v. Roth, ante, p. 564.
604 OCTOBER TERM, 1971
Opinion of BRENNAN, J. 408 U.S.
for nonrenewal of his contract. Thus, whether a particular
teacher in a particular context has any right to
such administrative hearing hinges on a question of state
law. The Court's opinion makes this point very sharply:
"Property interests ... are created and their dimensions
are defined by existing rules or understandings
that stem from an independent source such as
state law .... " Board of Regents v. Roth, ante,
at 577.
Because the availability of the Fourteenth Amendment
right to a prior administrative hearing turns in
each case on a question of state law, the issue of abstention
will arise in future cases contesting whether a particular
teacher is entitled to a hearing prior to nonrenewal
of his contract. If relevant state contract law
is unclear, a federal court should, in my view, abstain
from deciding whether he is constitutionally entitled to a
prior hearing, and the teacher should be left to resort
to state courts on the questions arising under state law.
MR. JusTICE BRENNAN, with whom MR. JUSTICE
DOUGLAS joins, dis.senting in No. 71-162, ante, p. 564, and
dissenting in part in No. 70-36.
Although I agree with Part I of the Court's opinion in
No. 70-36, I also agree with my Brother MARSHALL that
"respondent [s] [were] denied due process when [their]
contract[s] [were] not renewed and [they were] not informed
of the reasons and given an opportunity to respond."
Ante, at 590. Since respondents were entitled
to summary judgment on that issue, I would affirm the
judgment of the Court of Appeals in No. 71-162, and, to
the extent indicated by my Brother MARSHALL, I would
modify the judgment of the Court of Appeals in No.
70-36.
•
PERRY v. SINDERMANN 605
593 MARSHALL, J ., dissenting in part
MR. JusTICE MARSHALL, dissenting in part.
Respondent was a teacher in the state college system
of the State of Texas for a decade before the Board
of Regents of Odessa Junior College decided not to renew
his contract. He brought this suit in Federal District
Court· claiming that the decision not to rehire him was in
retaliation for his public criticism of the policies of the
college administration in violation of the First Amendment,
and that because the decision was made without
giving him a statement of reasons and a hearing, it
denied him the due process of law guaranteed by the
Fourteenth Amendment. The District Court granted
summary judgment for petitioners, but the Court of
Appeals reversed and remanded the case for further proceedings.
This Court affirms the judgment of the Court
of Appeals.
I agree with Part I of the Court's opinion holding that
respondent has presented a bona fide First Amendment
claim that should be considered fully by the District
Court. But, for the reasons stated in my dissenting
opinion in Board of Regents v. Roth, No. 71-162, ante,
p. 587, I would modify the judgment of the Court of
Appeals to direct the District Court to enter summary
judgment for respondent entitling him to a statement
of reasons why his contract was not renewed and a
hearing on disputed issues of fact.
G06 OCTOBER TERM, 1971
Syllabus
GRAVEL v. UNITED STATES
408U.S.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 71-1017. Argued April 19--20, 1972-Decided June 29, 1972*
A United States Senator read to a subcommittee from classified
documents (the Pentagon Papers), which he then placed in the
public record. The press reported that the Senator had arranged
for private publication of the Papers. A grand jury investigating
whether violations of federal Jaw were implicated subpoenaed an
aide to the Senator. The Senator, as an intervenor, moved to
quash the subpoena, contending that it would violate the Speech
or Debate Clause to compel the aide to testify. The District
Court denied the motion but limited the questioning of the aide.
The Court of AppeaJs affirmed the denial but modified the protective
order, ruling that congr,essional aides and other persons
may not be questioned regarding legislative acts and that, though
the private publication was not constitutionally protected, a
common-law privilege similar to the privilege of protecting executive
officials from liability for libel, see Barr v. Matteo, 360 U. S.
564, barred questioning the aide concerning such publication.
Held:
1. The Speech or Debate Clause applies not only to a Member
of Congress but also to his aide, insofar as the aide's conduct
would be a protected legislative act if performed by the Member
himself. Kilbourn v. Thompson, 103 U. S. 168; Dombrowski v.
Eastland, 387 U.S. 82; and Powell v. McCormack, 395 U.S. 486,
distinguished. Pp. 613-622.
2. The Speech or Debate Clause does not extend immunity to
the Senator's aide from testifying before the grand jury about the
alleged arrangement for private publication of the Pentagon
Papers, as such publication had no connection with the legislative
process. Pp. 622-627.
3. The aide, similarly, had no nonconstitutional testimonial privilege
from being questioned by the grand jury in connection with
its inquiry into whether private publication of the Papers violated
federal law. P. 627.
*Together with No. 71-1026, United States v. Gravel,, also on
certiorari to the same court.
GRAVEL v. UNITED STATES 607
606 Syllabus
4. The Court of Appeals' protective order was overly broad in
enjoining interrogation of the aide with respect to any act, "in
the broadest sense," that he performed within the scope of his
employment, since the aide's immunity extended only to legislative
acts as to which the Senator would be irnm11ni> And the aide
may be questioned by the grand jury about the source of classified
documents in the Senator's possession, as long as the questioning
implicates no legislative act. The order in other respects
would suffice if it forbade questioning the aide or others about
the conduct or motives of the Senator or his aides at the subcommittee
meeting; communications between the Senator and his
aides relating to that meeting or any legislative act of the Senator;
or steps of the Senator or his aides preparatory for the meeting,
if not relevant to third-party crimes. Pp. 627-629.
455 F. 2d 753, vacated and remanded.
WHITE, J., wrote the opinion of the Court, in which BURGER, C. J.,
and BLACKMUN, PowELL, and REHNQUIST, JJ., joined. STEWART,
J., filed an opinion dissenting in part, post, p. 629. DoUGLAS, J.,
filed a dissenting opinion, post, p. 633. BRENNAN, J., filed a dissenting
opinion, in which DoUGLAS and MARSHALL, JJ., joined, post, p.
648.
Robert J. Reinstein and Charles L. Fishman argued
the cause for petitioner in No. 71-1017 and for respondent
in No. 71-1026. With them on the briefs were Harvey A.
Silverglate and Alan M. Dershowitz.
Solicitor General Griswold argued the cause for the
United States in both cases. With him on the briefs
were Assistant Attorney General Mardian, Jerome M.
Feit, Allan A. Tuttle, and Robert L. Keuch.
Sam J. Ervin, Jr., and William B. Saxbe argued the
cause for the Senate of the United States as amicus curiae.
With them on the brief were James 0. Eastland, John 0.
Pastore, Herman E. Talmadge, Norris Cotton, Peter H.
Dominick, Charles McC. Mathias, Jr., Philip B. Kurland,
and Edward I. Rothschild.
Briefs of amici curiae were filed by Melvin L. Wulf
and Sanford Jay Rosen for the American Civil Liberties
608 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
Union; by Frank B. Frederick and Henry Paul Monaghan
for the Unitarian Universalist Association; and by
Morton Stavis and Doris Peterson for Leonard S. Rodberg.
Opinion of the Court by MR. JusTICE WHITE, announced
by MR. JUSTICE BLACKMUN.
These cases arise out of the investigation by a federal
grand jury into possible criminal conduct with respect
to the release and publication of a classified Defense
Department study entitled History of the United States
Decision-Making Process on Viet Nam Policy. This
document, popularly known as the Pentagon Papers,
bore a Defense security classification of Top Secret-
Sensitive. The crimes being investigated included the
retention of public property or records with intent to
convert ( 18 U. S. C. § 641), the gathering and transmitting
of national defense information (18 U. S. C.
§ 793), the concealment or removal of public records
or documents (18 U. S. C. § 2071), and conspiracy to
commit such o:ffenses and to defraud the United States
(18 U. S. C. § 371).
Among the witnesses subpoenaed were Leonard S.
Rodberg, an assistant to Senator Mike Gravel of Alaska
and a resident fellow at the Institute of Policy Studies,
and Howard Webber, Director of M. I. T. Press. Senator
Gravel, as intervenor,1 filed motions to quash the
1 The District Court permitted Senator Gravel to intervene in
the proceeding on Dr. Rodberg's motion to quash the subpoena
ordering his appearance before the grand jury and accepted motions
from Gravel to quash the subpoena and to specify the exact nature
of the questions to be asked Rodberg. The Government contested
Gravel's standing to appeal the trial court's disposition of these
motions on the ground that, had the subpoena been directed to the
Senator, he could not have appealed from a denial of a motion to
quash withont first refusing to comply with the subpoena and being
held in contempt. United States v. Ryan, 402 U. 8. 530 (1971);
Cobbledick v. United States, 309 U. S. 323 (1940). The Court of
GRAVEL v. UNITED STATES 609
606 Opinion of the Court
subpoenas and to require the Government to specify
the particular questions to be addressed to Rodberg:
He asserted that requiring these witnesses to appear and
testify would violate his privilege under the Speech or
Debate Clause of the United States Constitution, Art. I,
§ 6, cl. 1.
It appeared that on the night of June 29, 1971, Senator
Gravel, as Chairman of the Subcommittee on Buildings
and Grounds of the Senate Public Works Committee,
convened a meeting of the subcommittee and there
read extensively from a copy of the Pentagon Papers.
He then placed the entire 47 volumes of the study in
the public record. Rodberg had been added to the
Senator's staff earlier in the day and assisted Gravel
in preparing for and conducting the hearing.3 Some
weeks later there were press reports that Gravel had
arranged for the papers to be published by Beacon
Appeals, United States v. Doe, 455 F. 2d 753, 756-757 (CAl 1972),
held that because the subpoena was directed to third parties, who
could not be counted on to risk contempt to protect intervenor's
rights, Gravel might be "powerless to avert the mischief of the
order" if not permitted to appeal, citing Perlman v. United States,
247 U.S. 7, 13 (1918). The United States does not here challenge
the propriety of the appeal.
2 Dr. Rodberg, who filed his own motion to quash the subpoena
directing his appearance and testimony, appeared as amicus curiae
both in the Court of Appeals and this Court. Technically, Rodberg
states, he is a party to No. 71-1026, insofar as the Government appeals
from the protective order entered by the District Court. However,
since Gravel intervened, Rodberg does not press the point.
Brief of Leonard S. Rodberg as Amicus Curiae 2 n. 2.
3 The District Court found "that 'as personal assistant to movant
[Gravel], Dr. Rodberg assisted movant in preparing for disclosure
and subsequently disclosing to movant's colleagues and constituents,
at a hearing of the Senate Subcommittee on Public Buildings and
Grounds, the contents of the so-called "Pentagon Papers," which were
critical of the Executive's conduct in the field of foreign relations.'"
United States v. Doe, 332 F. Supp. 930,932 (Mass. 1971).
610 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
Press 4 and that members of Gravel's staff had talked
with Webber as editor of M. I. T. Press."
The District Court overruled the motions to quash
and to specify questions but entered an order proscribing
certain categories of questions. United States v.
Doe, 332 F. Supp. 930 (Mass. 1971). The Government's
contention that for purposes of applying the
Speech or Debate Clause the courts were free to inquire
into the regularity of the subcommittee meeting was
rejected.6 Because the Clause protected all legislative
• Beacon Press is a division of the Unitarian Universalist Association,
which appeared here as amicu..s curiae in support of the position
taken by Senator Gravel.
5 Gravel so alleged in his motion to intervene in the Webber
matter and to quash the subpoena ordering Webber to appear and
testify. App. 15-18.
6 The Government maintained that Congress does not enjoy unlimited
power to conduct business and that judicial review has often
been exercised to curb extra-legislative incursions by legislative committees,
citing Watkins v. United States, 354 U. S. 178 (1957);
llfcGrain v. Daugherty, 273 U. S. 135 (1927); Hentoff v. !chord,
318 F. Supp. 1175 (DC 1970), at least where such incursions are
unrelated to a legitimate legislative purpose. It was alleged that
Gravel h!!d "convened a special, unauthorized, and untimely meeting
of the Senate Subcommittee on Public Works (at midnight on
.Tune 29, 1971), for the purpose of reading the documents and thereafter
placed all unread portions in the subcommittee record, with
Dr. Rodberg soliciting publication following the meeting." App. 9.
The District Court rejected the contention: "Senator Gravel has suggested
that the availability of funds for the construction and improvement
of public buildings and grounds has been affected by the
necessary costs of the war in Vietnam and that therefore the development
and conduct of the war is properly within the concern
of his subcommittee. The court rejects the Government's argument
without detailed consideration of the merits of the Senator's
position, on the basis of the general rule restricting judicial inquiry
into matters of legislative purpose and operations." United States
v. Doe, 332 F. Supp., at 935. Cases such as Watkins, supra,
were distinguished on the ground that they concerned the power
of Congress under the Constitution: "It has not been suggested
GRAVEL v. UNITED STATES 611
606 Opinion of the Court
acts, it was held to shield from inquiry anything the
Senator did at the subcommittee meeting and "certain
acts done in preparation therefor." I d., at 935. The
Senator's privilege also prohibited "inquiry into things
done by Dr. Rodberg as the Senator's agent or assistant
which would have been legislative acts, and therefore
privileged, if performed by the Senator personally." Id.,
at 937-938.7 The trial court, however, held the private
publication of the documents was not privileged by the
Speech or Debate Clause. Id., at 936.8
The Court of Appeals affirmed the denial of the motions
to quash but modified the protective order to
reflect its own views of the scope of the congressional
privilege. United States v. Doe, 455 F. 2d 753 (CAl
1972). Agreeing that Senator and aide were one for
by the Government that the Subcommittee itself is unauthorized,
nor that the war in Vietnam is an issue beyond the purview of
congressional debate and action. Also, the individual rights at
stake in these proceedings are not those of a witness before a congressional
committee or of a subject of a committee's investigation,
but only those of a congressman and member of his personal staff
who claim 'intimidation by the executive.'" 332 F. Supp., at 936.
7 The District Court thought that Rodberg could be questioned
concerning his own conduct prior to joining the Senator's staff and
concerning the activities of third parties with whom Rodberg and
Gravel dealt. Id., at 934.
8 The protective order entered by the District Court provided as
follows:
"(1) No witness before the grand jury currently investigating the
release of the Pentagon Papers may be questioned about Senator
Mike Gravel's conduct at a meeting of the Subcommittee on Public
Buildings and Grounds on June 29, 1971 nor about things done by
the Senator in preparation for and intimately related to said meeting.
"(2) Dr. Leonard S. Rodberg may not be questioned about his own
actions on June 29, 1971 after having been engaged as a member
of Senator Gravel's personal staff to the extent that they were taken
at the Senator's direction either at a meeting of the Subcommittee
on Public Buildings and Grounds or in preparation for and intimately
related to said meeting." Id., at 938.
612 OCTOBER TERM, 1971
Opinion of the Court- 408 u. s.
the purposes of the Speech or Debate Clause and that
the Clause foreclosed inquiry of both Senator and aide
with respect to legislative a~ts, the Court of Appeals
also viewed the privilege as barring direct inquiry of
the Senator or his aide, but not of third parties, as to
the sources of the Senator's information used in performing
legislative duties.9 Although it did not consider
private publication by the Senator or Beacon
Press to be protected by the Constitution, the Court
of Appeals apparently held that neither Senator nor aide
could be questioned about it because of a common-law
privilege akin to the judicially created immunity of executive
officers from liability for libel contained in a
news release issued in the course of their normal duties.
See Barr v. Matteo, 360 U. S. 564 (1959). This privilege,
fashioned by the Court of Appeals, would not
protect third parties from similar inquiries before the
grand jury. As modified by the Court of Appeals, the
protective order to be observed by prosecution and grand
jury was:
" ( 1) No witness before the grand jury currently
investigating the release of the Pentagon Papers
may be questioned about Senator Mike Gravel's
conduct at a meeting of the Subcommittee on Public
Buildings and Grounds on June 29, 1971, nor,
if the questions are directed to the motives or purposes
behind the Senator's conduct at that meeting,
about any communications with him or with
9 The Court of Appeals thought third parties could be questioned
as to their own conduct regarding the Pentagon Papers, "including
their dealing with intervenor or his aides." United States v.
Doe, 455 F. 2d, at 761. The court found no merit in the claim that
such parties should be shielded from questioning under the Speech
or Debate Clause concerning thei:- own wrongful acts, even if such
questioning may bring the Senator's conduct into question. Id., at
758 n. 2.
606
GRAVEL v. UNITED STATES 613
Opinion of the Court
his aides regarding the activities of the Senator
or his aides during the period of their employment,
in preparation for and related to said meeting.
"(2) Dr. Leonard S. Rodberg may not be questioned
about his own actions in the broadest sense,
including observations and communications, oral or
written, by or to him or coming to his attention
while being interviewed for, or after having been
engaged as a member of Senator Gravel's personal
staff to the extent that they were in the course
of his employment."
The United States petitioned for certiorari challenging
the ruling that aides and other persons may not
be questioned with respect to legislative acts and that
an aide to a Member of Congress has a common-law
privilege not to testify before a grand jury with respect
to private publication of materials introduced into a
subcommittee record. Senator Gravel also petitioned
for certiorari seeking reversal of the Court of Appeals
insofar as it held private publication unprotected by
the Speech or Debate Clause and asserting that the protective
order of the Court of Appeals too narrowly
protected against inquiries that a grand jury could direct
to third parties. We granted both petitions. 405 U. S.
916 (1972).
I
Because the claim is that a Member's aide shares
the Member's constitutional privilege, we consider first
whether and to what extent Senator Gravel himself is
exempt from process or inquiry by a grand jury investigating
the commission of a crime. Our frame of reference
is Art. I, § 6, cl. 1, of the Constitution:
"The Senators and Representatives shall receive
a Compensation for their Services, to be ascertained
by La~, and paid out of the Treasury of the United
614 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
States. They shall in all Cases, except Treason,
Felony and Breach of the Peace, be privileged from
Arrest during their Attendance at the Session of
their respective Houses, and in going to and returning
from the same; and for any Speech or Debate
in either House, they shall not be questioned
in any other Place."
The last sentence of the Clause provides Members of
Congress with two distinct privileges. Except in cases
of "Treason, Felony and Breach of the Peace," the Clause
shields Members from arrest while attending or traveling
to and from a session of their House. History reveals,
and prior cases so hold, that this part of the Clause
exempts Members from arrest in civil cases only.
"When the Constitution was adopted, arrests in civil
suits were still common in America. It is only to such
arrests that the provision applies." Long v. Ansell, 293
U. S. 76, 83 (1934) (footnote omitted). "Since ...
the terms treason, felony and breach of the peace, as
used in the constitutional provision relied upon, excepts
from the operation of the privilege all criminal offenses,
the conclusion results that the claim of privilege of
exemption from arrest and sentence was without
merit .... " Williamson v. United States, 207 U. S.
425, 446 (1908).10 Nor does freedom from arrest confer
immunity on a. Member from service of process as
a defendant in civil matters, Long v. Ansell, supra, at
10 Williamson, United States Congressman, had been found guilty
of conspiring to commit subornation of perjury in connection with
proceedings for the purchase of public land. He objected to the
court's passing sentence upon him and particularly protested that
any imprisonment would deprive him of his constitutional right to
"go to, attend at and return from the ensuing session of Congress."
Williamson v. United States, 207 U. S. 425, 433 (1908). The
Court rejected the contention that the Speech or Debate Clause freed
legislators from accountability for criminal conduct.
GRAVEL v. UNITED STATES 615
606 Opinion of the Court
82-83, or as a witness in a criminal case. "The constitution
gives to every man, charged with an offence,
the benefit of compulsory process, to secure the attendance
of his witnesses. I do not know of any privilege
to exempt members of congress from the service, or
the obligations, of a subpoena, in such cases." United
States v. Cooper, 4 Dall. 341 (1800) (Chase, J., sitting
on Circuit). It is, therefore, sufficiently plain that
the constitutional freedom from arrest does not exempt
Members of Congress from the operation of the
ordinary criminal laws, even though imprisonment may
prevent or interfere with the performance of their duties
as Members. Williamson v. United States, supra; cf.
Burton v. United States, 202 U. S. 344 (1906). Indeed,
implicit in the narrow scope of the privilege of
freedom from arrest is, as Jefferson noted, the judgment
that legislators ought not to stand above th3 law they
create but ought generally to be bound by it as are
ordinary persons. T. Jefferson, Manual of Parliamentary
Practice, S. Doc. No. 92-1, p. 437 (1971).
In recognition, no doubt, of the force of this part of
§ 6, Senator Gravel disavows any assertion of general
immunity from the criminal law. But he points out
that the last portion of § 6 affords Members of Congress
another vital privilege-they may not be questioned
in any other place for any speech or debate in
either House. The claim is not that while one part of
§ 6 generally permits prosecutions for treason, felony,
and breach of the peace, another part nevertheless
broadly forbids them. Rather, his insistence is that
the Speech or Debate Clause at the very least protects
him from criminal or civil liability and from questioning
elsewhere than in the Senate, with respect to
the events occurring at the subcommittee hearing at
which the Pentagon Papers were introduced into the
public record. To us this claim is incontrovertible.
616 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
The Speech or Debate Clause was designed to assure a
co-equal branch of the government wide freedom of
speech, debate, and deliberation without intimidation or
threats from the Executive Branch. It thus protects
Members against prosecutions that directly impinge
upon or threaten the legislative process. We have no
doubt that Senator Gravel may not be made to answer-
either in terms of questions or in terms of defending
himself from prosecution-for the events that
occurred at the subcommittee meeting. Our decision
is made easier by the fact that the United States appears
to have abandoned whatever position it took to
the contrary in the lower courts.
Even so, the United States strongly urges that because
the Speech or Debate Clause confers a privilege
only upon "Senators and Representatives," Rodberg
himself has no valid claim to constitutional immunity
from grand jury inquiry. In our view, both courts
below correctly rejected this position. We agree with
the Court of Appeals that for the purpose of construing
the privilege a Member and his aide are to be "treated
as one," United States v. Doe, 455 F. 2d, at 761; or, as
the District Court put it: the "Speech or Debate Clause
prohibits inquiry into things done by Dr. Rodberg as
the Senator's agent or assistant which would have
been legislative acts, and therefore privileged, if performed
by the Senator personally." United States v.
Doe, 332 F. Supp., at 937-938. Both courts recognized
what the Senate of the United States urgently
presses here: that it is literally impossible, in view
of the complexities of the modern legislative process,
with Congress almost constantly in session and matters
of legislative concern constantly proliferating, for
Members of Congress to perform their legislative tasks
without the help of aides and assistants; that the
day-to-day work of such aides is so critical to the
GRAVEL v. UNITED STATES 617
606 Opinion of the Court
Members' performance that they must be treated as
the latter's alter egos; and that if they are not so
recognized, the central role of the Speech or Debate
Clause-to prevent intimidation of legislators by the
Executive and accountability before a possibly hostile
judiciary, United States v. Johnson, 383 U. S. 169, 181
(1966)-will inevitably be diminished and frustrated.
The Court has already embraced similar views in Barr
v. Matteo, 360 U.S. 564 (1959), where, in immunizing the
Acting Director of the Office of Rent Stabilization from
liability for an alleged libel contained in a press release,
the Court held that the executive privilege recognized in
prior cases could not be restricted to those of cabinet
rank. As stated by Mr. Justice Harlan, the "privilege
is not a badge or emolument of exalted office, but an
expression of a policy designed to aid in the effective
functioning of government. The complexities and magnitude
of governmental activity have become so great
that there must of necessity be a delegation and redelegation
of authority as to many functions, and we
cannot say that these functions become less important
simply because they are exercised by officers of lower
rank in the executive hierarchy." Id., at 572--573 (footnote
omitted).
It is true that the Clause itself mentions only "Senators
and Representatives," but prior cases have plainly
not taken a literalistic approach in applying the privilege.
The Clause also speaks only of "Speech or Debate,"
but the Court's consistent approach has been that
to confine the protection of the Speech or Debate Clause
to words spoken in debate would be an unacceptably
narrow view. Committee reports, resolutions, and the
act of voting are equally covered; "[i]n short, ...
things generally done in a session of the House by one
of its members in relation to the business before it."
Kilbourn v. Thompson, 103 U.S. 168,204 (1881), quoted
618 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
with approval in United States v. Johnson, 383 U. S.,
at 179. Rather than giving the Clause a cramped
construction, the Court has sought to implement its
fundamental purpose of freeing the legislator from executive
and judicial oversight that realistically threatens
to control his conduct as a legislator. We have little
doubt that we are neither exceeding our judicial powers
nor mistakenly construing the Constitution by holding
that the Speech or Debate Clause applies not only to a
Member but also to his aides insofar as the conduct of
the latter would be a protected legislative act if performed
by the Member himself.
Nor can we agree with the United States that our
conclusion is foreclosed by Kilbourn v. Thompson, supra,
Dombrowski v. Eastland, 387 U.S. 82 (1967), and Powell
v. McCormack, 395 U. S. 486 (1969), where the
speech or debate privilege was held unavailable to certain
House and committee employees. Those cases do
not hold that persons other than Members of Congress
are beyond the protection of the Clause when they perform
or aid in the performance of legislative acts. In
Kilbourn, the Speech or Debate Clause protected House
Members who had adopted a resolution authorizing
Kilbourn's arrest; that act was clearly legislative in nature.
But the resolution was subject to judicial review
insofar as its execution impinged on a citizen's rights as
it did there. That the House could with impunity order
an unconstitutional arrest afforded no protection for
those who made the arrest. The Court quoted with approval
from Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng.
Rep. 1112 (K. B. 1839): "'So if the speaker by authority
of the House order an illegal act, though that authority
shall exempt him from question, his order shall no more
justify the person who executed it than King Charles's
warrant for levying ship-money could justify his reveGRAVEL
v. UNITED STATES 619
606 Opinion of the Court
nue officer,'" 103 U. S., at 202.11 The Speech or Debate
Clause could not be construed to immunize an illegal
arrest even though directed by an immune legislative
act. The Court was careful to point out that the
Members themselves were not implicated in the actual
arrest, id., at 200, and, significantly enough, reserved the
question whether there might be circumstances in which
"there may . . . be things done, in the one House or
the other, of an extraordinary character, for which the
members who take part in the act may be held lega11y
responsible." 103 U. S., at 204 (emphasis added).
Dombrowski v. Eastland, supra, is little different in
principle. The Speech or Debate Clause there protected
a Senator, who was also a subcommittee chairman, but
not the subcommittee counsel. The record contained no
evidence of the Senator's involvement in any activity that
could result in liability, 387 U. S., at 84, whereas the
committee counsel was charged with conspiring with
state officials to carry out an illegal seizure of records
that the committee sought for its own proceedings.
Ibid. The committee counsel was deemed protected to
11 In Kilbourn v. Thompson, 103 U.S. 168, 198 (1881), the Court
noted a second example, used by Mr. Justice Coleridge in Stockdale
v. Hansard, 9 Ad. & E. I, 225-226, 112 Eng. Rep. 1112, 1196-1197
(K. B. 1839): "'Let me suppose, by way of illustration, an
extreme case; the House of Commons resolves that any one
wearing a dress of a particular manufacture is guilty of a breach
of privilege, and orders the arrest of such persons by the constable
of the parish. An arrest is made and action brought, to
which the order of the House is pleaded as a justification. . . . In
such a case as the one supposed, the plaintiff's counsel would in~ist.
on the distinction between power and privilege; and no lawyer can
seriously doubt that it exists: but the argument confounds them, and
forbids us to enquire, in any particular case, whether it ranges
under the one or the other. I can find no principle which sanctions
this.' "
620 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
some extent by legislative privilege, but it did not shield
him from answering as yet unproved charges of conspiring
to violate the constitutional rights of private parties.
Unlawful conduct of this kind the Speech or Debate
Clause simply did not immunize.
Powell v. McCormack reasserted judicial power to determine
the validity of legislative actions impinging on
individual rights-there the illegal exclusion of a representative-
elect-and to afford relief against House aides
seeking to implement the invalid resolutions. The Members
themselves were dismissed from the case because
shielded by the Speech or Debate Clause both from liability
for their illegal legislative act and from having to
defend themselves with respect to it. As in Kilbourn,
the Court did not reach the question "whether under the
Speech or Debate Clause petitioners would be entitled to
maintain this action solely against the members of Congress
where no agents participated in the challenged
action and no other remedy was available." 395 U. S.,
at 506 n. 26.
None of these three cases adopted the simple proposition
that immunity was unavailable to congressional or
committee employees because they were not Representatives
or Senators; rather, immunity was unavailable
because they engaged in illegal conduct that was not entitled
to Speech or Debate Clause protection. The three
cases reflect a decidedly jaundiced view towards extending
the Clause so as to privilege illegal or unconstitutional
conduct beyond that essential to foreclose executive control
of legislative speech or debate and associated matters
such as voting and committee reports and proceedings. In
Kilbourn, the Sergeant-at-Arms was executing a legislative
order, the issuance of which fell within the Speech or
Debate Clause; in Eastland, the committee counsel was
gathering information for a hearing; and in Powell, the
GRAVEL v. UNITED STATES 621
606 Opinion of the Court
Clerk and Doorkeeper were merely carrying out directions
that were protected by the Speech or Debate Clause. In
each case, protecting the rights of others may have to
some extent frustrated a planned or completed legislative
act; but relief could be afforded without proof of a legislative
act or the motives or purposes underlying such an
act. No threat to legislative independence was posed,
and Speech or Debate Clause protection did not attach.
None of this, as we see it, involves distinguishing between
a Senator and his personal aides with respect to
legislative immunity. In Kilbourn-type situations, both
aide and Member should be immune with respect to committee
and House action leading to the illegal resolution.
So, too, in Eastland, as in this litigation, senatorial aides
should enjoy immunity for helping a Member conduct
committee hearings. On the other hand, no prior case
has held that Members of Congress would be immune if
they executed an invalid resolution by themselves carrying
out an illegal arrest, or if, in order to secure information
for a hearing, themselves seized the property or invaded
the privacy of a citizen. Neither they nor their
aides should be immune from liability or questioning in
such circumstances. Such acts are no more essential to
legislating than the conduct held unprotected in United
States v. Johnson, 383 U. S. 169 (1966):12
The United States fears the abuses that history reveals
have occurred when legislators are invested with
the power to relieve others from the operation of otherwise
valid civil and criminal laws. But these abuses, it
seems to us, are for the most part obviated if the privilege
applicable to the aide is viewed, as it must be, as the
12 Senator Gravel is willing to assume that if he personally had
"stolen" the Pentagon Papers, and that act were a crime, he could
be prosecuted, as could aides or other assistants who participated
in the theft. Consolidated Brief for Senator Gravel 93.
622 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
privilege of the Senator, and invocable only by the Senator
or by the aide on the Senator's behalf ,13 and if in all
events the privilege available to the aide is confined to
those services that would be immune legislative conduct
if performed by the Senator himself. This view places
beyond the Speech or Debate Clause a variety of services
characteristically performed by aides for Members of
Congress, even though within the scope of their employment.
It likewise provides no protection for criminal
conduct threatening the security of the person or property
of others, whether performed at the direction of the
Senator in preparation for or in execution of a legislative
act or done without his knowledge or direction. Neither
does it immunize Senator or aide from testifying at trials
or grand jury proceedings involving third-party crimes
where the questions do not require testimony about or
impugn a legislative act. Thus our refusal to distinguish
between Senator and aide in applying the Speech or Debate
Clause does not mean that Rodberg is for all purposes
exempt from grand jury questioning.
II
We are convinced also that the Court of Appeals correctly
determined that Senator Gravel's alleged arrangement
with Beacon Press to publish the Pentagon Papers
was not protected speech or debate within the meaning
of Art. I, § 6, cl. 1, of the Constitution.
Historically, the English legislative privilege was not
viewed as protecting republication of an otherwise immune
libel on the floor of the House. Stockdale v. Hansard,
9 Ad. & E., at 114, 112 Eng. Rep., at 1156, recognized
that "[f]or speeches made in Parliament by a
member to the prejudice of any other person, or hazardous
13 It follows that an aide's claim of privilege can be repudiated and
thus waived by the Senator.
GRAVEL v. UNITED STATES 623
606 Opinion of the Court
to the public peace, that member enjoys complete impunity."
But it was clearly stated that "if the calumnious or
inflammatory speeches should be reported and published,
the law will attach responsibility on the publisher." 14
14 Stockdale extensively reviewed the precedents and their interplay
with the privilege so forcefully recognized in the Bill of Rights
of 1689: "That the Freedom of Speech, and Debates or Proceedings
in Parliament, ought not to be impeached or questioned in any Court
or Place out of Parliament." 1 W. & M., Sess. 2, c. 2. From these
cases, including Rex v. Creevey, l :v1. & S. 273, 105 Eng. Rep. 102
(K. B. 1813); Rex v. Wright, 8 T. R. 293, 101 Eng. Rrp. 1396 (K. B.
1799); Rex v. Abingdon, 1 Esp. 226, 170 Eng. Rep. 337 (N. P. 1794);
Rex v. Williams, 2 Show. K. B. 4il, 89 Eng. Rep. 1048 (1686), it is
apparent that to the extent English precedent is relevant to the
Speech or Debate Clause there is little, if any, support for Senator
Gravel's position with respect to republication. Parliament reacted
to Stockdale v. Hansard by adopting the Parliamentary Papers Act
of 1840, 3 & 4 Viet., c. 9, which stayed proceedings in all cases
where it could be shown that publication was by order of a House
of Parliament and was a bona fide report, printed and circulated
without malice. See generally C. Wittke, The History of English
Parliamentary Privilege (1921).
Gravel urges that Stockdale v. Hansard was later repudiated in
Wason v. Walter, L. R. 4 Q. B. 73 (1868), which held a proprietor
immune from civil libel for an accurate republication of a debate in
the House of Lords. But the immunity established in Wason was
not founded on parliamentary privilege, id., at 84, but upon analogy
to the privilege for reporting judicial proceedings. Id., at 87-90.
The Wason court stated its "unhesitating and unqualified adhesion"
to the "masterly judgments" rendered in Stockdale and characterized
the question before it as whether republication, quite apart from
any assertion of parliamentary privilege, was "in itself privileged
and lawful." Id., at 86-87. That the privileges for nonmalicious
republication of parliamentary and judicial proceedings-later established
as qualified~were construed as coextensive in all respects, id.,
at 95, further underscores the inappositeness of reading Wason as
based upon parliamentary privilege that, like the Speech or Debate
Clause, is absolute. :Much later Holdsworth was to comment that
at the time of Wason the distinction between absolute and qualified
privilege had not been worked out and that the "part played by
624 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
This was accepted in Kilbourn v. Thompson as a "sound
statement of the legal effect of the Bill of Rights and of
the parliamentary law of England" and as a reasonable
basis for inferring "that the framers of the Constitution
meant the same thing by the use of language borrowed
from that source." 103 U. S., at 202.
Prior cases have read the Speech or Debate Clause
"broadly to effectuate its purposes," United States v.
Johnson, 383 U. S., at 180, and have included within its
reach anything "generally done in a session of the House
by one of its members in relation to the business before
it." Kilbourn v. Thompson, 103 U. S., at 204; United
States v. Johnson, 383 U. S., at 179. Thus, voting by
Members and committee reports are protected; and we
recognize today-as the Court has recognized before,
Kilbourn v. Thompson, 103 U. S., at 204; Tenney v.
Brandhove, 341 U.S. 367, 377-378 (1951)-that a Member's
conduct at legislative committee hearings, although
subject to judicial review in various circumstances, as is
legislation itself, may not be made the basis for a civil
or criminal judgment against a Member because that
conduct is within the "sphere of legitimate legislative
activity." Id., at 376.15
But the Clause has not been extended beyond the legismalice
in the tort and crime of defamation" probably helped retard
recognition of a qualified privilege. 8 W. Holdsworth, History of
English Law 377 ( 1926).
15 The Court in Tenney v. Brandhove, 341 U. S. 367, 376-377
(1951), was equally clear that "legislative activity" is not all-encompassing,
nor may its limits be established by the Legislative Branch:
"Legislatures may not of course acquire power by an unwarranted
extension of privilege. The House of Commons' claim of power to
establish the limits of its privilege has been little more than a pretense
since Ashby v. White, 2 Ld. Raym. 938, 3 id. 320. Thi~ Court
has not hesitated to sustain the rights of private individuals when it
found Congress was acting outside its legislative role. Kilbourn v.
Thompson, 103 U.S. 168; Marshall v. Gordon, 243 U.S. 521; compare
McGrain v. Daugherty, 273 U.S. 135, 176."
GRAVEL v. UNITED STATES 625
606 Opinion of the Court
lative sphere. That Senators generally perform certain
acts in their official capacity as Senators does not necessarily
make all such acts legislative in nature. Members
of Congress are constantly in touch with the Executive
Branch of the Government and with administrative
agencies-they may cajole, and exhort with respect to the
administration of a federal statute-but such conduct,
though generally done, is not protected legislative activity.
United States v. Johnson decided at least this much.
"No argument is made, nor do we think that it could be
successfully contended, that the Speech or Debate Clause
reaches conduct, such as was involved in the attempt to
influence the Department of Justice, that is in no wise
related to the due functioning of the legislative process."
383 U. S., at 172. Cf. Burton v. United States, 202 U. S.,
at 367-368.
Legislative acts are not all-encompassing. The heart
of the Clause is speech or debate in either House. Insofar
as the Clause is construed to reach other matters,
they must be an integral part of the deliberative and
communicative processes by which Members participate
in committee and House proceedings with respect to the
consideration and passage or rejection of proposed legislation
or with respect to other matters which the Constitution
places within the jurisdiction of either House. As
the Court of Appeals put it, the courts have extended
the privilege to matters beyond pure speech or debate
in either House, but "only when necessary to prevent indirect
impairment of such deliberations." United States
v. Doe, 455 F. 2d, at 760.
Here, private publication by Senator Gravel through
the cooperation of Beacon Press was in no way essential
to the deliberations of the Senate; nor does questioning
as to private publication threaten the integrity
or independence of the Senate by impermissibly exposing
its deliberations to executive influence. The Senator
626 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
had conducted his hearings; the record and any report
that was forthcoming were available both to his committee
and the Senate. Insofar as we are advised, neither
Congress nor the full committee ordered or authorized
the publication.16 We cannot but conclude that the
Senator's arrangements with Beacon Press were not part
and parcel of the legislative process.
There are additional considerations. Article I, § 6,
cl. 1, as we have emphasized, does not purport to confer
a general exemption upon Members of Congress from
liability or process in criminal cases. Quite the contrary
is true. While the Speech or Debate Clause recognizes
speech, voting, and other legislative acts as
exempt from liability that might otherwise attach, it
does not privilege either Senator or aide to violate an
otherwise valid criminal law in preparing for or implementing
legislative acts. If republication of these classified
papers would be a crime under an Act of Congress, it
would not be entitled to immunity under the Speech or
Debate Clause. It also appears that the grand jury was
pursuing this very subject in the normal course of a
valid investigation. The Speech or Debate Clause does
not in our view extend immunity to Rodberg, as a Senator's
aide, from testifying before the grand jury about
the arrangement between Senator Gravel and Beacon
Press or a.bout his own participation, if any, in the
16 The sole constitutional claim asserted here is based on the
Speech or Debate Clause. We need not address issues that may
arise when Congress or either House, as distinguished from a single
Member, orders the publication and/or public distribution of committee
hearings, reports, or other materials. Of course, Art. I, § 5,
cl. 3, requires that each House "keep a Journal of its Proceedings,
and from time to time publish the same, excepting such Parts as
may in their Judgment require Secrecy .... " This Clause has not
been the subject of extensive judicial examination. See Field v.
Clark, 143 U. S. 649, 670-671 (1892); United States v. Ballin, 144
U.S. 1, 4 (1892).
GRAVEL v. UNITED STATES 627
606 Opinion of the Court
alleged transaction, so long as legislative acts of the
Senator are not impugned.
III
Similar considerations lead us to disagree with the
Court of Appeals insofar as it fashioned, tentatively at
least, a nonconstitutional testimonial privilege protecting
Rodberg from any questioning by the grand jury
concerning the matter of republication of the Pentagon
Papers. This privilege, thought to be similar to that
protecting executive officials from liability for libel, see
Barr v. Matteo, 360 U. S. 564 (1959), was considered
advisable " [ t] o the extent that a congressman has responsibility
to inform his constituents .... " 455 F.
2d, at 760. But we cannot carry a judicially fashioned
privilege so far as to immunize criminal conduct proscribed
by an Act of Congress or to frustrate the grand
jury's inquiry into whether publication of these classified
documents violated a federal criminal statute. The socalled
executive privilege has never been applied to shield
executive officers from prosecution for crime, the Court of
Appeals was quite sure that third parties were neither
immune from liability nor from testifying about the
republication matter, and we perceive no basis for conferring
a testimonial privilege on Rodberg as the Court
of Appeals seemed to do.
IV
We must finally consider, in the light of the foregoing,
whether the protective order entered by the Court
of Appeals is an appropriate regulation of the pending
grand jury proceedings.
Focusing first on paragraph two of the order, we think
the injunction against interrogating Rodberg with respect
to any act, "in the broadest sense," performed by him
within the scope of his employment, overly restricts
628 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
the scope of grand jury inquiry. Rodberg's immunity,
testimonial or otherwise, extends only to legislative acts
as to which the Senator himself would be immune. The
grand jury, therefore, if relevant to its investigation
into the possible violations of the criminal law, and
absent Fifth Amendment objections, may require from
Rodberg answers to questions relating to his or the
Senator's arrangements, if any, with respect to republication
or with respect to third-party conduct under
valid investigation by the grand jury, as long as the
questions do not implicate legislative action of the Senator.
Neither do we perceive any constitutional or other
privilege that shields Rodberg, any more than any other
witness, from grand jury questions relevant to tracing
the source of obviously highly classified documents that
came into the Senator's possession and are the basic
subject matter of inquiry in this case, as long as no
legislative act is implicated by the questions.11
Because the Speech or Debate Clause privilege applies
both to Senator and aide, it appears to us that
paragraph one of the order, alone, would afford ample
protection for the privilege if it forbade questioning any
witness, including Rodberg: (1) concerning the Sen-
17 The Court of Appeals held that the Speech or Debate Clause
protects aides as well as Senators and that while third parties may
be questioned about the source of a Senator's information, neither
aide nor Senator need answer such inquiries. The Government's
position i;; that the aide has no protection under the Speech or Debate
Clause and may be questioned even about legislative acts. A
contrary ruling, the Government fears, would invite great abuse.
On the other hand, Gravel contends that the Court of Appeals insufficiently
protected the Senator both with respect to the matter of
republication and with respect to the scope of inquiry permitted the
grand jury in questioning third-party witnesses with whom the Senator
and his aides dealt. Hence, we are of the view that both the
question of the aide's immunity and the question of the extent of that
immunity are properly before us in this case. And surely we are not
bound by the Government's view of the scope of the privilege.
GRAVEL v. UNITED STATES 629
606 STEWART, J., dissenting in part
ator's conduct, or the conduct of his aides, at the June 29,
1971, meeting of the subcommittee; 18 (2) concerning
the motives and purposes behind the Senator's conduct,
or that of his aides, at that meeting; (3) concerning
communications between the Senator and his aides during
the term of their employment and related to said
meeting or any other legislative act of the Senator;
( 4) except as it proves relevant to investigating possible
third-party crime, concerning any act, in itself not criminal,
performed by the Senator, or by his aides in the
course of their employment, in preparation for the subcommittee
hearing. We leave the final form of such
an order to the Court of Appeals in the first instance, or,
if that court prefers, to the District Court.
The judgment of the Court of Appeals is vacated
and the cases are remanded to that court for further proceedings
consistent with this opinion.
So ordered.
MR. JUSTICE STEWART, dissenting in part.
The Court today holds that the Speech or Debate
Clause does not protect a Congressman from being forced
to testify before a grand jury about sources of information
18 Having established that neither the Senator nor Rodberg is
subject to liability for what occurred at the subcommittee hearing,
we perceive no basis for inquiry of either Rodberg or third parties
on this subject. If it proves material to establish for the record the
fact of publication at the subcommittee hearing, which seems undisputed,
the public record of the hearing would appear sufficient
for this purpose. We do not intend to imply, however, that in no
grand jury investigations or criminal trials of third parties may
third-party witnesses be interrogated about legislative acts of Members
of Congress. As for inquiry of Rodberg about third-party
crimes, we are quite sure that the District Court has ample power
to keep the grand jury proceedings within proper bounds and to
foreclose improvident harassment and fishing expeditions into the
affairs of a Member of Congress that are no proper concern of the
grand jury or the Executive Branch.
630 OCTOBER TERM, 1971
STEWART, J., dissenting in part 408U. S.
used in preparation for legislative acts. This critical
question was not embraced in the petitions for certiorari.
It was not dealt with in the written briefs. It was addressed
only tangentially during the oral arguments. Yet
it is a question with profound implications for the effective
functioning of the legislative process. I cannot join
in the Court's summary resolution of so vitally important
a constitutional issue.
In preparing for legislative hearings, debates, and roll
calls, a member of Congress obviously needs the broadest
possible range of information. Valuable information
may often come from sources in the Executive Branch or
from citizens in private life. And informants such as
these may be willing to relate information to a Congressman
only in confidence, fearing that disclosure of their
identities might cause loss of their jobs or harassment
by their colleagues or employers. In fact, I should suppose
it to be self-evident that many such informants
would insist upon an assurance of confidentiality before
revealing their information. Thus, the acquisition of
knowledge through a promise of nondisclosure of its
source will often be a necessary concomitant of effective
legislative conduct, if the members of Congress are properly
to perform their constitutional duty.
The Court of Appeals for the First Circuit recognized
the importance of the information-gathering process in
the performance of the legislative function. It held that
the Speech or Debate Clause bars all grand jury questioning
of a member of Congress regarding the sources of his
information. The Court of Appeals reasoned that to
allow a "grand jury to question a senator about his
sources would chill both the vigor with which legislators
seek facts, and the willingness of potential sources to
supply them." United States v. Doe, 455 F. 2d 753, 758--
759. The Government did not seek review of this ruling,
but rather sought certiorari on the question whether the
GRAVEL v. UNITED STATES 631
606 STEWART, J., dissenting in part
Speech or Debate Clause bars a grand jury from questioning
congressional aides about privileged actions of
Senators or Representatives. 1
The Court, however, today decides, sua sponte, that a
Member of Congress may, despite the Speech or Debate
Clause, be compelled to testify before a grand jury concerning
the sources of information used by him in the
performance of his legislative duties, if such an inquiry
"proves relevant to investigating possible third-party
crime." Ante, at 629 (emphasis supplied).2 In my view,
this ruling is highly dubious in view of the basic purpose
of the Speech or Debate Clause--"to prevent intimidation
[of Congressmen] by the executive and accountability
before a possibly hostile judiciary." United
States v. Johnson, 383 U. S. 169, 181.
Under the Court's ruling, a Congressman may be subpoenaed
by a vindictive Executive to testify about informants
who have not committed crimes and who have
no knowledge of crime. Such compulsion can occur, because
the judiciary has traditionally imposed virtually
no limitations on the grand jury's broad investigatory
powers; grand jury investigations are not limited in scope
1 As stated in its petition for certiorari, the Government asked us
to consider:
"Whether Article 1, Section 6, of the Constitution providing
that ' ... for any Speech or Debate in either House,' the Senators
and Representatives 'shall not be questioned in any other Place' bars
a grand jury from questioning aides of members of Congress and
other persons about matters that may touch on activities of a member
of Congress which are protected 'Speech or Debate.' 11
The Government also asked us to consider:
"Whether an aide of a member of Congress has a rommon law
privilege not to testify before a grand jury concerning private republication
of material which his Senator-employer had introduced
into the record of a Senate subcommittee."
We granted certiorari on both questions. 405 U.S. 916.
2 See also ante, at 622, 628.
632 OCTOBER TERM, 1971
STEWART, J., dissenting in part 408U.S.
to specific criminal acts, and standards of materiality and
relevance are greatly relaxed.8 But even if the Executive
had reason to believe that a Member of Congress had
knowledge of a specific probable violation of law, it is
by no means clear to me that the Executive's interest in
the administration of justice must always override the
public interest in having an informed Congress. Why
should we not, given the tension between two competing
interests, each of constitutional dimensions, balance the
claims of the Speech or Debate Clause against the claims
of the grand jury in the particularized contexts of specific
cases? And why are not the Houses of Congress the
proper institutions in most situations to impose sanctions
upon a Representative or Senator who withholds information
about crime acquired in the course of his legislative
duties? 4
3 See, e. g., Wilson v. United States, 221 U. S. 361; Hendricks v.
United States, 223 U.S. 178; United States v. Johnson, 319 U. 8. 503.
See generally Holt v. United States, 218 U. S. 245; Costello v.
United States, 350 U. S. 359.
4 During oral argument, the Solicitor General virtually conceded,
in the course of arguing that aides should not enjoy the same testimonial
privilege as Congressmen, that a Senator could not be called
before the grand jury to testify about the sources of his information:
"Q. Mr. Solicitor, am I correct that you wouldn't be able to question
the Senator as to where he got the papers from?
"A. Oh, Mr. Justice, we are not able to question the Senator about
anything insofar as it relates to speech or debate.
"Q. Well, this was related, you agree, to speech and debate?
"A. I am not contending to the contrary .... " Tr. of Oral Arg.,
Apr. 20, 1972, pp. 27-28.
The following exchange also took place:
"Q. You can't ask a Senator where you got the material you used
in your speech.
"A. Yes, Mr. Justice.
"Q. You can't.
"A. Yes." Id., at 29.
At another point in the oral argument, the Solicitor General said
GRAVEL v. UNITED STATES 633
606 DouGLAS, J., dissenting
I am not prepared to accept the Court's rigid conclusion
that the Executive may always compel a legislator
to testify before a grand jury about sources of information
used in preparing for legislative acts. For
that reason, I dissent from that part of the Court's
opinion that so inflexibly and summarily decides this vital
question.
MR. JusTICE DouoLAS, dissenting.
I would construe the Speech or Debate Clause 1 to
insulate Senator Gravel and his aides from inquiry concerning
the Pentagon Papers, and Beacon Press from
inquiry concerning publication of them, for that publication
was but another way of informing the public
as to what had gone on in the privacy of the Executive
Branch concerning the conception and pursuit of the
so-called "war" in Vietnam. Alternatively, I would
hold that Beacon Press is protected by the First Amendment
from prosecution or investigations for publishing
or undertaking to publish the Pentagon Papers.
Gravel, Senator from Alaska, was Chairman of the
Senate Subcommittee on Public Buildings and Grounds.
He convened a meeting of the Subcommittee and read
to it a summary of the so-called Pentagon Papers. He
then introduced "the entire Papers, allegedly some 47
volumes and said to contain seven million words, as an
that even when a Senator or Representative has knowledge of crime
as a result of legislative acts "[tJhey can't even be required to respond
to questions with respect to their speeches and debates. That
is a great and historic privilege which ought to be maintained which
I fully support but which does not extend to any other persons than
Senators and Representatives." Id., at 32.
1 The Speech or Debate Clause included in Art. I, § 6, cl. 1,
of the Constitution provides as respects Senators and Representatives
that "for any Speech or Debate in either House, they shall
not be questioned in any other Place."
634 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 408 U.S.
exhibit.'' 455 F. 2d 753, 756. Thereafter, he supplied a
copy of the papers to the Beacon Press, a Boston publishing
house, on the understanding that it would publish
the papers without profit to the Senator. A grand jury
was investigating the release of the Pentagon Papers
and subpoenaed one Rodberg, an aide to Senator Gravel,
to testify. Rodberg moved to quash the subpoena; and
on the same day the Senator moved to intervene. Intervention
was granted and in due course the Court of
Appeals entered the following order which is now before
us for review:
"(1) No witness before the grand jury currently
investigating the release of the Pentagon Papers
may be questioned about Senator Mike Gravel's
conduct at a meeting of the Subcommittee on Public
Buildings and Grounds on June 29, 1971, nor, if
the questions are directed to the motives or purposes
behind the Senator's conduct at that meeting,
about any communications with him or with
his aides regarding the activities of the Senator or
his aides during the period of their employment,
in preparation for and related to said meeting.
"(2) Dr. Leonard S. Rodberg may not be questioned
about his own actions in the broadest sense,
including observations and communications, oral or
written, by or to him or coming to his attention
while being interviewed for, or after having been
engaged as a member of Senator Gravel's personal
staff to the extent that they were in the course of
his employment."
I
Both the introduction of the Pentagon Papers by
Senator Gravel into the record before his Subcommittee
and his efforts to publish them were clearly covered by
GRAVEL v. UKITED STATES 635
606 DouGLAS, J., dissenting
the Speech or Debate Clause, as construed in Kilbourn
v. Thompson, 103 U. S. 168, 204:
"It would be a narrow view of the constitutional
provision to limit it to words spoken in debate. The
reason of the rule is as forcible in its application
to written reports presented in that body by its
committees, to resolutions offered, which, though in
writing, must be reproduced in speech, and to the
act of voting, whether it is done vocally or by
passing between the tellers. In short, to things
generally done in a session of the House by one
of its members in relation to the business before it." 2
One of the things normally done by a Member "in
relation to the business before it" is the introduction
of documents or other exhibits in the record the committee
or subcommittee is making. The introduction
of a document into a record of the Committee or subcommittee
by its Chairman certainly puts it in the public
domain. Whether a particular document is relevant
to the inquiry of the committee may be questioned by
the Senate in the exercise of its power to prescribe rules
for the governance and discipline of wayward members.
But there is only one instance, as I see it, where supervisory
power over that issue is vested in the courts, and
that is where a witness before a committee is prosecuted
for contempt and he makes the defense that the
question he refused to answer was not germane to the
legislative inquiry or within its permissible range. See
Uphaus v. Wyman, 360 U. S. 72; Kilbourn v. Thompson,
supra, at 190.
In all other situations, however, the judiciary's view
of the motives or germaneness of a Senator's conduct
2 And see United States v. Johnson, 383 U. S. 169, 172, 177; and
Tenney v. Brandhove, 341 U. S. 367, 376.
636 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 U.S.
before a committee is irrelevant. For, "[t]he claim of
an unworthy purpose does not destroy the privilege."
Tenney v. Brandhove, 341 U. S. 367, 377. If there is
an abuse, there is a remedy; but it is legislative, not
judicial.
As to Senator Gravel's efforts to publish the Subcommittee
record's contents, wide dissemination of this
material as an educational service is as much a part
of the Speech or Debate Clause philosophy as mailing
under a frank a Senator's or a Congressman's speech
across the Nation. As mentioned earlier, "[i]t is the
proper duty of a representative body to look diligently
into every affair of government and to talk much about
what it sees. . . . The informing function of Congress
should be preferred even to its legislative function."
W. Wilson, Congressional Government 303 (1885), quoted
with approval in Tenney v. Brandhove, supra, at 377
n. 6. "From the earliest times in its history, the Congress
has assiduously performed an 'informing function,'"
Watkins v. United States, 354 U. S. 178, 200
n. 33. "Legislators have an obligation to take positions
on controversial political questions so that their constituents
can be fully informed by them." Bond v.
Floyd, 385 U. S. 116, 136.
We said in United States v. Johnson, 383 U. S. 169,
179, that the Speech or Debate Clause established a
"legislative privilege" that protected a member of Congress
against prosecution "by an unfriendly executive
and conviction by a hostile judiciary" in order, as Mr.
Justice Harlan put it, to ensure "the independence of
the legislature." That hostility emanates from every
stage of the present proceedings. It emphasizes the
need to construe the Speech or Debate Clause generously,
not niggardly. If republication of a Senator's
speech in a newspaper carries the privilege, as it doubtless
does, then republication of the exhibits introduced
GRAVEL v. UNITED STATES 637
606 DouGLAS, J., dissenting
at a hearing before Congress must also do so. That
means that republication by Beacon Press is within the
ambit of the Speech or Debate Clause and that the
confidences of the Senator in arranging it are not subject
to inquiry "in any other Place" than the Congress.
It is said that though the Senator is immune from
questioning as to what he said and did in preparation
for the committee hearing and in conducting it, his
aides may be questioned in his stead. Such easy circumvention
of the Speech or Debate Clause would
indeed make it a mockery. The aides and agents such
as Beacon Press must be taken as surrogates for the
Senator and the confidences of the job that they enjoy
are his confidences that the Speech or Debate Clause
embraces.
II
The secrecy of documents in the Executive Department
has been a bone of contention between it and
Congress from the beginning.3 Most discussions have
3 See Developments In The Law-The National Security Interest
and Civil Liberties, 85 Harv. L. Rev. 1130, 1207-1215
(1972); Note, The Right of Government Employees to Furnish Information
to Congress: Statutory and Constitutional Aspects, 57 Va.
L. Rev. 885-887 (1971); Berger, Executive Privilege v. Congressional
Inquiry, 12 U. C. L. A. L. Rev. 1044 (1965); Schwartz,
Executive Privilege and Congressional Investigatory Power, 47 Cali£.
L. Rev. 3 (1959); Executive Privilege: The Withholding of Information
by the Executive, Hearing on S. 1125 before the Subcommittee
on Separation of Powers of the Senate Committee on the Judiciary,
92d Cong., 1st Sess. (1971). There is no express statutory authority
for the classification procedure used currently by the bureaucracies,
although it has been claimed that Congress has recognized it in
such measures as the exemptions from the disclosure requirements
of the Freedom of Information Act, 5 U. S. C. § 552 (b) and the
espionage laws, 18 U. S. C. §§ 792-799. Rather, the classification
regime has been implemented through a series of executive orders
638 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 U.S.
centered on the scope of the executive privilege in
stamping documents as "secret," "top secret," "confidential,"
and so on, thus withholding them from the
eyes of Congress and the press. The practice has reached
large proportions, it being estimated that
(1) Over 30,000 people in the Executive Branch have
the power to wield the classification stamp.4
(2) The Department of State, the Department of
Defense, and the Atomic Energy Commission have over
20 million classified documents in their files.
(3) Congress appropriates approximately $15 billion
annually without most of its members or the public
or the press knowing for what purposes the money is
to be used.5
The problem looms large as one of separation of
described in Developments In The Law, supra, at 1192-1198. It
has also been claimed that several sections of Art. II (such as the
designation of the President as Commander in Chief of the Army
and Navy) confer upon the Executive an inherent power to classify
documents. See Report of the Commission on Government Security,
S. Doc. No. 64, 85th Cong., 1st Sess., 158 (1957).
4 Hearings on S. 1125, supra, n. 3, at 517-518. One estimate of the
number of officials who can classify documents is even higher. In the
Department of Defense alone, 803 persons have the authority to
classify documents Top Secret; 7,687 have permission to stamp them
Secret, and 31,048 have the authorization to denominate papers Confidential.
United States Government Information Policies and
Practices-The Pentagon Papers, Hearings before a Subcommittee of
the House Committee on Government Operations, 92d Cong., 1st
Sess., pt. 2, p. 599 (statement of David Cooke, Deputy Assistant
Secretary of Defense).
5 Senator Fulbright, chairman of the Senate Foreign Relations
Committee, recently testified that his committee had been so unsuccessful
in obtaining accurate information about the Vietnam war
from the Executive Branch that it was required to hire its own investigators
and send them to Southeast Asia. Hearings on S. 1125,
supra, n. 3, at 206.
GRAVEL v. UNITED STATES 639
606 DouGLAs, J., dissenting
powers. Woodrow Wilson wrote about it in terms of
the "informing function" of Congress: 0
"It is the proper duty of a representative body
to look diligently into every affair of government
and to talk much about what it sees. It is meant
to be the eyes and the voice, and to embody the
wisdom and will of its constituents. Unless Congress
have and use every means of acquainting
itself with the acts and the disposition of the administrative
agents of the government, the country
must be helpless to learn how it is being served;
and unless Congress both scrutinize these things
and sift them by every form of discussion, the
country must remain in embarrassing, crippling ignorance
of the very affairs which it is most important
that it should understand and direct. The informing
function of Congress should be pref erred even
to its legislative function. The argument is not
only that discussed and interrogated administration
is the only pure and efficient administration,
but, more than that, that the only really selfgoverning
people is that people which discusses
and interrogates its administration. The talk on
the part of Congress which we sometimes justly
condemn is the profitless squabble of words over
frivolous bills or selfish party issues. It would be
hard to conceive of there being too much talk about
the practical concerns and processes of government.
Such talk it is which, when earnestly and purposefully
conducted, clears the public mind and shapes
the demands of public opinion."
Classification of documents is a concern of the Congress.
It is, however, no concern of the courts, as I see it, how a
6 Congressional Government 303-304 (1885).
640 OCTOBER TERM, 1971
DouGLAB, J., dissenting 408 U.S.
document is stamped in an Executive Department or
whether a committee of Congress can obtain the use of it.
The federal courts do not sit as an ombudsman refereeing
the disputes between the other two branches. The federal
courts do become vitally involved whenever their
power is sought to be invoked either to protect the
press against censorship as in New York Times Co. v.
United States, 403 U. S. 713, or to protect the press
against punishment for publishing "secret" documents
or to protect an individual against his disclosure of their
contents for any of the purposes of the First Amendment.
Forcing the press to become the Government's coconspirator
in maintaining state secrets is at war with
the objectives of the First Amendment. That guarantee
was designed in part to ensure a meaningful version of
self-government by immersing the people in a "steady,
robust, unimpeded, and uncensored flow of opinion and
reporting which are continuously subjected to critique,
rebuttal, and re-examination." Branzburg v. Hayes,
post, at 715 (DOUGLAS, J., dissenting); Brandenburg v.
Ohio, 395 U.S. 444; Stanley v. Georgia, 394 U.S. 557,564;
Lamont v. Postmaster General, 381 U.S. 301,308 (BRENNAN,
J., concurring); New York Times Co. v. Sullivan,
376 U. S. 254, 270. As I have said, in dissent, elsewhere,
e. g., Branzburg, supra; Kleindienst v. Mandel, post, at
771, that Amendment is aimed at protecting not only
speakers and writers but also listeners and readers. The
essence of our form of governing was at the heart of Mr.
Justice Black's reminder in the Pentagon Papers case that
" [ t] he press was protected so that it could bare the secrets
of government and inform the people." 403 U. S., at 717
( concurring opinion). Similarly, Senator Sam Ervin has
observed: "When the people do not know what their
government is doing, those who govern are not accountable
for their actions-and accountability is basic to the
democratic system. By using devices of secrecy, the govGRAVEL
v. UNITED STATES 641
606 DouGLAS, J., dissenting
ernment attains the power to 'manage' the news and
through it to manipulate public opinion." 1 Ramsey
Clark as Attorney General expressed a similar sentiment:
"If government is to be truly of, by, and for the people,
the people must know in detail the activities of government.
Nothing so diminishes democracy as secrecy." 8
And see Meiklejohn, The First Amendment Is An Absolute,
1961 Sup. Ct. Rev. 245; Press Freedoms Under
Pressure: Report of the Twentieth Century Fund Task
Force on the Government and the Press 109-117 (1972)
(background paper by Fred Graham on access to news) ;
M. Johnson, The Government Secrecy Controversy 39-
41 (1967).
Jefferson in a letter to Madison, dated December 20,
1787, posed the question "whether peace is best preserved
by giving energy to the government, or information to the
people," and then answered, "This last is the most certain,
and the most legitimate engine of government."
6 Writings of Thomas Jefferson 392 (Memorial ed. 1903).
Madison at the time of the Whiskey Rebellion spoke
in the House against a resolution of censure against
the groups stirring up the turmoil against that rebellion.
" 'If we advert to the nature of Republican Government,
we shall find that the censorial power is
in the people over the Government, and not in the
Government over the people.' " Brant, The Madison
Heritage, 35 N. Y. U. L. Rev. 882, 900.
Yet, as has been revealed by such exposes as the
Pentagon Papers, the My Lai massacres, the Gulf of
Tonkin "incident," and the Bay of Pigs invasion, the
Government usually suppresses damaging news but high-
7 Secrecy in a Free Society, 213 Nation 454, 456 (1971).
8 Attorney General's Memorandum on the Public Information Section
of the Administrative Procedure Act, 20 Ad. L. Rev. 263, 264
(1967).
642 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 U.S.
lights favorable news. In this filtering process the
secrecy stamp is the officials' tool of suppression and it
has been used to withhold information which in "99y2 % "
of the cases would present no danger to national security.9
To refuse to publish "classified" reports would at times
relegate a publisher to distributing only the press releases
of Government or remaining silent; if he printed only the
press releases or "leaks" he would become an arm of officialdom,
not its critic. Rather, in my view, when a
publisher obtains a classified document he should be free
to print it without fear of retribution, unless it contains
material directly bearing on future, sensitive planning of
the Government.10 By that test Beacon Press could with
9 United States Government Information Policies and Practices-
The Pentagon Papers, Hearings before a Subcommittee of the House
Committee on Government Operations, 92d Cong., 1st Sess., pt. 1, p.
97; Cong. Horton, The Public's Right to Know, 77 Case & Comm.
3, 5 (1972). We are told that the military has withheld as confidential
a large selection of photographs showing atrocities against
Vietnamese civilians wrought by both Communist and United States
forces. Even a training manual devoted to the history of the
Bolshevik revolution was dubbed secret by the military. Hearings,
supra, pt. 3, at 966, 967 (testimony of former classification
officer). And ordinary newspaper clippings of criticism aimed a.t the
military have been routinely marked secret. Id., pt. 1, at
100. Former Justice and former Ambassador to the United Nations
Arthur Goldberg has stated: "I have read and prepared countless
thousands of classified documents. In my experience, 75 percent
of these documents should never have been classified in the first
place; another 15 percent quickly outlived the need for secrecy; and
only about 10 percent genuinely required restricted access over any
significant period of time." Id., pt. 1, at 12.
10 Moreover, I would not even permit a conviction for the publication
of documents related to future and sensitive planning where the
jury was permitted, as it was in United States v. Drummond, 354 F.
2d 132, 152 (CA2), to consider the fact that the documents had been
classified by the Executive Branch pursuant to its present overbroad
system which, in my view, unnecessarily sweeps too much
GRAVEL v. UNITED STATES 643
606 DouGLAs, J., dissenting
impunity reproduce the Pentagon Papers inasmuch as
their content "is all history, not future events. None of
it is more recent than 1968." New York Times Co. v.
United States, 403 U.S., at 722 n. 3 (concurring opinion).
The late Mr. Justice Harlan in the Pentagon Papers
case said that in that situation the courts had only two restricted
functions to perform: first, to ascertain whether
the subject matter of the dispute lies within the proper
compass of the President's constitutional power; and
second, to insist that the head of the Executive Department
concerned-whether State or Defense--determine
if disclosure of the subject matter "would irreparably
impair the national security." Beyond those two inquiries,
he concluded, the judiciary may not go. I d.,
at 757-758 (dissenting opinion).
My view is quite different. When the press stands
before the court as a suspected criminal, it is the
duty of the court to disregard what the prosecution
claims is the executive privilege and to acquit the press
or overturn the ruling or judgment against it, if the
First Amendment and the assertion of the executive
privilege conflict. For the executive privilege-nowhere
made explicit in the Constitution-is necessarily subordinate
to the express commands of the Constitution.
United States v. Curtiss-Wright Corp., 299 U. S.
304, involved the question whether a proclamation issued
by the President, pursuant to a Joint Resolution of the
nonsensitive information into the locked files of the bureaucracies.
In general, howewr, I agree that there may be situations and occasions
in which the right to know must yield to other compelling
and overriding interests. As Professor Henkin has observed, many
deliberations in Government are kept confidential, such as the proceedings
of grand juries or our own Conferences, despite the fact
that the breadth of public knowledge is thereby diminished. Henkin,
The Right To Know And The Duty To Withhold: The Case Of The
Pentagon Papers, 120 U. Pa. L. Rev. 271, 274-275 (1971).
644 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 u. s.
Congress, was adequate to sustain an indictment. The
Court, in holding that it was, discussed at length the
power of the President. The Court said that the power
of the President in the field of international relations
does not require as a basis an Act of Congress; but
it added tpat his power "like every other governmental
power, must be exercised in subordination to the applicable
provisions of the Constitution." Id., at 320.
When the Executive Branch launches a criminal prosecution
against the press, it must do so only under an Act
of Congress. Yet Congress has no authority to place
the press under the restraints of the executive privilege
without "abridging" the press within the meaning of
the First Amendment.
In related and analogous situations, federal courts have
subordinated the executive privilege to the requirements
of a fair trial.
Mr. Chief Justice Marshall in the trial of Aaron Burr
ruled "[t]hat the president of the United States may be
subpoenaed, and examined as a witness, and required to
produce any paper in his possession, is not controverted."
United States v. Burr, 25 F. Cas. 187, 191 (No. 14,694)
(CC Va. 1807). Yet he "may have suffi~ient motives for
declining to produce a particular paper, and those motives
may be such as to restrain the court from enforcing
its production." Ibid. A letter to the President, he
said, "may relate to public concerns" and not be "forced
into public view." Id., at 192. But where the paper
was shown "to be essential to the justice of the case,"
ibid., "the paper [should] be produced, or the cause be
continued." Ibid.
Jencks v. United States, 353 U. S. 657, is in that tradition.
It was a criminal prosecution for perjury, the
telling evidence against the accused being the testimony
of Government investigators. The defense asked for
contemporary notes made by agents at the time. Refusal
GRAVEL v. UNITED STATES 645
606 DouGLAS, J., dissenting
was based on their confidential character. We held that
to be reversible error.11
"We hold that the criminal action must be dismissed
when the Government, on the ground of
privilege, elects not to comply with an order to produce,
for the accused's inspection and for admission
in evidence, relevant statements or reports in its
possession of government witnesses touching the subject
matter of their testimony at the trial. Accord,
Roviaro v. United States, 353 U. S. 53, 60-61. The
burden is the Government's, not to be shifted to
the trial judge, to decide whether the public prejudice
of allowing the crime to go unpunished is
greater than that attendant upon the possible disclosure
of state secrets and other confidential information
in the Government's possession." Id., at
672.
Congress enacted the so-called Jencks Act, 18 U. S. C.
§ 3500, regulating the use of Government documents in
criminal prosecutions. We sustained that Act. Scales
v. United States, 367 U. S. 203, 258. Under the Act a
defendant "on trial in a federal criminal prosecution is
entitled, for impeachment purposes, to relevant and
11 In Alderman v. United States, 394 U.S. 165, we took a, like course
in requiring the prosecution to disclose to the defense records of
unlawful electronic surveillance:
"It may be that the prospect of disclosure will compel the Government
to dismiss some prosecutions in deference to national security
or third-party interests. But this is a choice the Government concededly
faces with respect to material which it has obtained illegally
and which it admits, or which a judge would find, is arguably relevant
to the evidence offered against the defendant." Id., at 184.
A different rule obtains in civil suits where the government is
not the moving party but is a defendant and has specified the
terms on which it may be sued. United States v. Reynolds, 345 u. s. 1, 12.
646 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 U.S.
competent statements of a government witness in possession
of the Government touching the events or activities
as to which the witness has testified at the trial. ...
The command of the statute is thus designed to further
the fair and just administration of criminal justice, a
goal of which the judiciary is the special guardian."
Campbell v. United States, 365 U. S. 85, 92. And see
Clancy v. United States, 365 U. S. 312.
The prosecution often dislikes to make public the
identity of the informer on whose information its case
rests. But his identity must be disclosed where his
testimony is material to the trial. Roviaro v. United
States, 353 U. S. 53. In other words, the desire for Government
secrecy does not override the demands for a
fair trial. And see Scher v. United States, 305 U. S. 251,
254. The constitutional demands for a fair trial, implicit
in the concept of due process, In re Murchison, 349
U. S. 133, 136, override the Government's desire for
secrecy, whether the identity of an informer or the
executive privilege be involved. And see Smith v.
Illinois, 390 U. S. 129.
The requirements of the First Amendment are not of
lesser magnitude. They override any claim to executive
privilege. As stated in United States v. Curtiss-Wright
Corp., supra, the class of executive privilege "like every
other governmental power, must be exercised in subordination
to the applicable provisions of the Constitution."
299 U. S., at 320.
III
Aside from the question of the extent to which publishers
can be penalized for printing classified documents,
surely the First Amendment protects against all inquiry
into the dissemination of information which, although
once classified, has become part of the public domain.
To summon Beacon Press through its officials before
the grand jury and to inquire into why it did what it did
GRAVEL v. UNITED STATES 64i
606 DOUGLAS, J., dissenting
and its publication plans is "abridging" the freedom
of the press contrary to the command of the First
Amendment. In light of the fact that these documents
were part of the official Senate record,12 Beacon
Press has violated no valid law, and the grand jury's
scrutiny of it reduces to "[e]xposure purely for the sake
of exposure." Uphaus v. Wyman, 360 U. S., at 82
(BRENNAN, J., dissenting). As in United States v.
Rumely, 345 U. S. 41, where a legislative committee inquired
of a publisher of political tracts as to its customers'
identities, "[i] f the present inquiry were sanctioned,
the press would be subjected to harassment that in practical
effect might be as serious as censorship." Id., at 57
( concurring opinion). Under our Constitution the Government
has no surveillance over the press. That includes,
as we held in New York Times Co. v. United
States, 403 U. S. 713, the prohibition against prior restraints.
Yet criminal punishment for or investigations
of what the press publishes, though a different species
of abridgment, is nonetheless within the ban of the First
Amendment.
The story of the Pentagon Papers is a chronicle of
suppression of vital decisions to protect the reputations
and political hides of men who worked an amazingly
successful scheme of deception on the American people.
They were successful not because they were astute but
because the press had become a frightened, regimented,
submissive instrument, fattening on favors from those
in power and forgetting the great tradition of reporting.
To allow the press further to be cowed by grand
12 Republication of what has filled the Congressional Record is
commonplace. Newspapers, television,. and radio use its contents
constantly. I see no difference between republication of a paragraph
and republication of material amounting to a book. Once
a document or a series of documents is in the record of the Senate
or House or one of its committees it is in the public domain.
648 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408U.S.
jury inqumes and prosecution is to carry the concept
of "abridging" the press to frightening proportions.
What would be permissible if Beacon Press "stole''
the Pentagon Papers is irrelevant to today's decision.
What Beacon Press plans to publish is matter introduced
into a public record by a Senator acting under
the full protection of the Speech or Debate Clause.13
In light of the command of the First Amendment we
have no choice but to rule that here government, not the
press, is lawless.
I would affirm the judgment of the Court of Appeals
except as to Beacon Press, in which case I would reverse.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE
DouGLAS, and MR. JusTICE MARSHALL, join, dissenting.
The facts of this litigation, which are detailed by the
Court, and the objections to overclassification of documents
by the Executive, detailed by my Brother DouGLAS,
need not be repeated here. My concern is with the narrow
scope accorded the Speech or Debate Clause by today's
decision. I fully agree with the Court that a Congressman's
immunity under the Clause must also be
extended to his aides if it is to be at all effective. The
complexities and press of congressional business make it
impossible for a Member to function without the close
cooperation of his legislative assistants. Their role as his
agents in the performance of official duties requires that
they share his immunity for those acts. The scope of
that immunity, however, is as important as the persons
to whom it extends. In my view, today's decision so restricts
the privilege of speech or debate as to endanger
the continued performance of legislative tasks that are
vital to the workings of our democratic system.
13 It is conceded that all of the material which Beacon Press
has undertaken to publish was introduced into the Subcommittee
record and that this record is open to the public. See Brief for
United States 3.
GRAVEL v. UNITED STATES 649
606 BRENNAN, J., dissenting
I
In holding that Senator Gravel's alleged arrangement
with Beacon Press to publish the Pentagon Papers is not
shielded from extra-senatorial inquiry by the Speech
or Debate Clause, the Court adopts what for me is a
far too narrow view of the legislative function. The
Court seems to assume that words spoken in debate or
written in congre~ional reports are protected. by the
Clause, so that if Senator Gravel had recited part of
the Pentagon Papers on the Senate floor or copied them
into a Senate report, those acts could not be questioned
"in any other Place." Yet because he sought a wider
audience, to publicize information deemed relevant to
matters pending before his own committee, the Senator
suddenly loses his immunity and is exposed to grand
jury investigation and possible prosecution for the republication.
The explanation for this anomalous result
is the Court's belief that "Speech or Debate" encompasses
only acts necessary to the internal deliberations
of Congress concerning proposed legislation. "Here,"
according to the Court, "private publication by Senator
Gravel through the cooperation of Beacon Press was in
no way essential to the deliberations of the Senate."
Ante, at 625. Therefore, "the Senator's arrangements
with Beacon Press were not part and parcel of the legislati
ve process." Id., at 626.
Thus, the Court excludes from the sphere of protected
legislative activity a function that I had supposed lay
at the heart of our democratic system. I speak, of
course, of the legislator's duty to inform the public
about matters affecting the administration of government.
That this "informing function" falls into the
class of things "generally done in a session of the House
by one of its members in relation to the business before
it,1' Kilbourn v. Thompson, 103 U. S. 168, 204 (1881),
was explicitly acknowledged by the Court in Watkins
650 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 u. s.
v. United States, 354 U. S. 178 (1957). In speaking of
the "power of the Congress to inquire into and publicize
corruption, maladministration or inefficiency in
agencies of the Government," the Court noted that
"[f]rom the earliest times in its history, the Congress has
assiduously performed an 'informing function' of this
nature." Id., at 200 n. 33.
We need look no further than Congress itself t-0 find
evidence supporting the Court's observation in Watkins.
Congress has provided financial support for communications
between its Members and the public, including
the franking privilege for letters, telephone and telegraph
allowances, stationery allotments, and favorable
prices on reprints from the Congressional Record. Congressional
hearings, moreover, are not confined t:o gathering
information for internal distribution, but are often
widely publicized, sometimes televised, as a means of
alerting the electorate t:o matters of public import and
concern. The list is virtually endless, but a small sampling
of contemporaneous hearings of this kind would
certainly include the Kefauver hearings on organized
crime, the 1966 hearings on aut:omobile safety, and the
numerous hearings of the Senate Foreign Relations Committee
on the origins and conduct of the war in Vietnam.
In short, there can be little doubt that informing
the electorate is a thing "generally done" by the Members
of Congress "in relation to the business before it."
The informing function has been cited by numerous
students of American politics, both within and without
the Government, as among the most important responsibilities
of legislative office. Woodrow Wilson, for example,
emphasized its role in preserving the separation
of powers by ensuring that the administration of public
policy by the Executive is understood by the legislature
and elect:orate:
"It is the proper duty of a representative body
to look diligently into every affair of government
606
GRAVEL v. UNITED STATES 651
BRENNAN, J., dissenting
and to talk much about what it sees. It is meant
to be the eyes and the voice, and to embody the wisdom
and will of its constituents. Unless Congress
have and use every means of acquainting itself with
the acts and the disposition of the administrative
agents of the government, the country must be helpless
to learn how it is being served; and unless Congress
both scrutinize these things and sift them by
every form of discussion, the country must remain
in embarrassing, crippling ignorance of the very
affairs which it is most important that it should
understand and direct." Congressional Government
303 (1885).
Others have viewed the give-and-take of such communication
as an important means of educating both the
legislator and his constituents:
"With the decline of Congress as an original source
of legislation, this function of keeping the government
in touch with public opinion and of keeping
public opinion in touch with the conduct of
the government becomes increasingly important.
Congress no longer governs the country; the Administration
in all its ramifications actually governs.
But Congress serves as a forum through which
public opinion can be expressed, general policy discussed,
and the conduct of governmental affairs
exposed and criticized." The Reorganization of
Congress, A Report of the Committee on Congress
of the American Political Science Association 14
(1945).
Though I fully share these and related views on the
educational values served by the informing function,
there is yet another, and perhaps more fundamental, interest
at stake. It requires no citation of authority
to state that public concern over current issues-the
war, race relations, governmental invasions of privacy652
OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
has transformed itself in recent years into what many
believe is a crisis of confidence, in our system of government
and its capacity to meet the needs and reflect
the wants of the American people. Communication
between Congress and the electorate tends to alleviate
that doubt by exposing and clarifying the workings of
the political system, the policies underlying new laws
and the role of the Executive in their administration.
To the extent that the informing function succeeds in
fostering public faith in the responsiveness of Government,
it is not only an "ordinary" task of the legislator
but one that is essential to the continued vitality of
our democratic institutions.
Unlike the Court, therefore, I think that the activities
of Congressmen in communicating with the public
are legislative acts protected by the Speech or Debate
Clause. I agree with the Court that not every task
performed by a legislator is privileged; intervention before
Executive departments is one that is not. But
the informing function carries a far more persuasive
claim to the protections of the Clause. It has been
recognized by this Court as something "generally done"
by Congressmen, the Congress itself has established
special concessions designed to lower the cost of such
communication, and, most important, the function furthers
several well-recognized goals of representative government.
To say in the face of these facts that the
informing function is not privileged merely because it
is not necessary to the internal deliberations of Congress
is to give the Speech or Debate Clause an artificial and
narrow reading unsupported by reason.
Nor can it be supported by history. There is substantial
evidence that the Framers intended the Speech
or Debate Clause to cover all communications from a
Congressman to his constituents. Thomas Jefferson
clearly expressed that view of legislative privilege in a
GRAVEL v. UNITED STATES 653
606 BRENNAN, J., dissenting
case involving Samuel Cabell, Congressman from Virgmia.
In 1797 a federal grand jury in Virginia investigated
the conduct of several Congressmen, including
Cabell, in sending newsletters to constituents critical
of the administration's policy in the war with France.
The grand jury found that the Congressmen had endeavored
"at a time of real public danger, to disseminate
unfounded calumnies against the happy government
of the United States, and thereby to separate the people
therefrom; and to increase or produce a foreign influence,
ruinous to the peace, happiness, and independence of
these United States." Jefferson immediately drafted a
long essay signed by himself and several citizens of
Cabell's district, condemning the grand jury investigation
as a blatant violation of the congressional privilege.
Revised and joined by James Madison, the protest was
forwarded to the Virginia House of Delegates. It reads
in part as follows:
"[T]hat in order to give to the will of the people
the influence it ought to have, and the information
which may enable them to exercise it usefully,
it was a part of the common law, adopted
as the law of this land, that their representatives,
in the discharge of their functions, should be free
from the cognizance or coercion of the co-ordinate
branches, Judiciary and Executive; and that their
communications with their constituents should of
right, as of duty also, be free, full, and unawed
by any: that so necessary has this intercourse been
deemed in the country from which they derive principally
their descent and laws, that the correspondence
between the representative and constituent is privileged
there to pass free of expense through the
channel of the public post, and that the proceedings
of the legislature have been known to be arrested
and suspended at times until the Representa654
OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
tives could go home to their several counties and
confer with their constituents.
"That when circumstances required that the ancient
confederation of this with the sister States, for
the government of their common concerns, should
be improved into a more regular and effective form
of general government, the same representative principle
was preserved in the new legislature, one branch
of which was to be chosen directly by the citizens
of each State, and the laws and principles remained
unaltered which privileged the representative functions,
whether to be exercised in the State or General
Government, against the cognizance and notice
of the co-ordinate branches, Executive and Judiciary;
and for its safe and convenient exercise, the intercommunication
of the representative and constituent
has been sanctioned and provided for through the
channel of the public post, at the public expense.
"That the grand jury is a part of the Judiciary,
not permanent indeed, but in office, pro hac vice
and responsible as other judges are for their actings
and doings while in office: that for the Judiciary to
interpose in the legislative department between the
constituent and his representative, to control them
in the exercise of their functions or duties towards
each other, to overawe the free correspondence which
exists and ought to exist between them, to dictate
what communications may pass between them, and
to punish all others, to put the representative into
jeopardy of criminal prosecution, of vexation, expense,
and punishment before the Judiciary, if his
communications, public or private, do not exactly
square with their ideas of fact or right, or with
their designs of wrong, is to put the legislative de606
GRAVEL v. UNITED STATES 655
BRENNAN, J., dissenting
partment under the feet of the Judiciary, is to leave
us, indeed, the shadow, but to take away the substance
of representation, which requires essentially
that the representative be as free as his constituents
would be, that the same interchange of sentiment
be lawful between him and them as would be
lawful among themselves were they in the personal
transaction of their own business; is to do away the
influence of the people over the proceedings of their
representatives by excluding from their knowledge,
by the terror of punishment, all but such information
or misinformation as may suit their own views;
and is the more vitally dangerous when it is considered
that grand jurors are selected by officers
nominated and holding their places at the will of
the Executive ... ; and finally, is to give to the
Judiciary, and through them to the Executive, a complete
preponderance over the legislature rendering
ineffectual that wise and cautious distribution of
powers made by the constitution between the three
branches, and subordinating to- the other two that
branch which most immediately depends on the people
themselves, and is responsible to them at short
periods." 8 The Works of Thomas Jefferson 322-
327 (Ford ed. 1904).
Jefferson's protest is perhaps the most significant and
certainly the most cogent analysis of the privileged
nature of communication between Congressman and public.
Its comments on the history, purpose, and scope
of the Clause leave no room for the notion that the
Executive or Judiciary can in any way question the
contents of that dialogue. Nor was Jefferson alone
among the Framers in that view. Aside from Madison,
who joined in the protest, James Wilson took the position
that a member of Congress "should enjoy the fullest
liberty of speech, and ... should be protected from
656 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
the resentment of every one, however powerful, to whom
the exercise of that liberty may occasion offence." 1
Works of James Wilson 421 (R. McCloskey ed. 1967).
Wilson, a member of the Committee responsible for
drafting the Speech or Debate Clause, stated in plainest
terms his belief in the duty of Congressmen to inform the
people about proceedings in the Congress:
"That the cond,Uct and proceedings of representatives
should be as open as possible to the inspection
of those whom they represent, seems to be, in republican
government, a maxim, of whose truth or
importance the smallest doubt cannot be entertained.
That, by a necessary consequence, every measure,
which will facilitate or secure this open communication
of the exercise of delegated power, should be
adopted and patronised by the constitution and
laws of every free state, seems to be another maxim,
which is the unavoidable result of the former."
Id., at 422.
Wilson's statements, like those of Jefferson and Madison,
reflect a deep conviction of the Framers, that selfgovernment
can succeed only when the people are
informed by their representatives, without interference
by the Executive or Judiciary, concerning the conduct
of their agents in government. That conviction is no
less valid today than it was at the time of our found1ng.
I would honor the clear intent of the Framers and extend
to the informing function the protections embodied in
the Speech or Debate Clause.
The Court, however, offers not a shred of evidence
concerning the Framers' intent, but relies instead on the
English view of legislative privilege to support its interpretation
of the Clause. Like the Court itself, ante, at
623--624, n. 14, I have some doubt concerning the relevance
of English authority to this case, particularly authority
post-dating the adoption of our Constitution. But
GRAVEL v. UNITED STATE9 657
606 BRENNAN, J., dissenting
in any event it is plain that the Court has misread the history
on which it relies. The Speech or Debate Clause of
the English Bill of Rights was at least in part the product
of a struggle between Parliament and Crown over the
very type of activity involved in this litigation. During
the reign of Charles II, the House of Commons received
a number of reports about an alleged plot between the
Crown and the King of France to restore Catholicism
as the established religion of England. The most famous
of these reports, Dangerfield's Narrative, was ent.ered
into the Commons Journal and then republished by order
of the Speaker of the House, Sir William Williams, with
the consent of Commons. In 1686, after James II came
to the throne, informations charging libel were filed
against Williams in King's Bench. Despite the arguments
of his attorney, Sir Robert Atkyns, that the publication
was necessary to the "counselling" and "enquiring"
functions of Parliament, Williams' plea of privilege
was rejected and he was fined £10,000. Shortly after
Williams' conviction James II was sent into exile, and
a committee was appointed by the House of Commons
to report upon "such things as are absolutely necessary
for securing the Laws and Liberties of the Nation."
9 Debates of the House of Commons, coll. by A. Grey,
1763, p. 37. In reporting to the House, the chairman
of the committee stated that the provision for freedom
of speech and debate was included "for the sake
of one .. . Sir William Williams, who was punished
out of Parliament for what he had done in Parliament."
I d., at 81. Following consultation with the
House of Lords, that provision was included as part of
the English Bill of Rights, and the judgment against
Williams was declared by Commons "illegal and subversive
of the freedom of parliament." 1 W. Townsend,
Memoirs of the House of Commons 414 (2d ed. 1844).
Although the origins of the Speech or Debate Clause in
658 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 u. s.
England can thus be traced to a case involving republication,
the Court, citing Stockdale v. Hansard, 9 Ad. &
E. 1, 112 Eng. Rep. 1112 ( K. B. 1839), says that "English
legislative privilege was not viewed as protecting republication
of an otherwise immune libel on the floor of the
House." Ante, at 622. That conclusion reflects an erroneous
reading of precedent. Stockdale did state that
"if the calumnious or inflammatory speeches should be
reported and published, the law will attach responsibility
on the publisher." Id., at 114, 112 Eng. Rep., at 1156.
But Stockdale concerned only the publisher's liability, not
that of a member of Parliament; thus, it has little bearing
on the instant case. Furthermore, contrary to the Court's
assertion, ante, at 623-624, n. 14, even the narrow result
of Stockdale was repudiated 30 years later in Wason v.
Walter, L. R. 4 Q. B. 73 (1868), for reasons strikingly
similar to those expressed by Jefferson in his protest.1 In
1 In Wason the proprietor of the London Times was sued for printing
an account of a libelous debate in the House of Lords. The
court agreed with Stockdale that the House did not have final authority
to determine the scope of its privileges and thus could not confer
immunity on any publisher merely by ordering a document printed
and then declaring it privileged. Indeed, the Wason court gave its
"unhesitating and unqualified adhesion" to Stockdale on that point.
Id., at 86. The only issue for the court, therefore, was whether the
publication "is, independently of such order or assertion of privilege,
in itself privileged and lawful." Id., at 87. On that issue the court
severely criticized the reasoning of earlier cases, including Stockdale,
stating that two of the Justices in that case had expressed a "very
shortsighted view of the subject." Id., at 91. The court held that
so long as the republication was accurate and in good faith, it could
not be the basis of a libel action; and the member himself was privileged
to publish his speech "for the information of his constituents."
Id., at 95. Relying, not on the Parliamentary Papers Act of 1840,
which was enacted in response to Stockdale, but on the analogy to
judicial reports and the need for an informed public, the court
stated:
"It seems to us impossible to doubt that it is of paramount public
and national importance that the proceedings of the houses of parGRAVEL
v. UNITED STATES 659
606 BRENNAN, J., dissenting
my view, therefore, the English precedent, if relevant at
all, supports Senator Gravel's position here.
Thus, from the standpoint of function or history, it is
plain that Senator Gravel's dissemination of material,
liament shall be communicated to the public, who have the deepest
interest in knowing what passes within their walls, seeing that on
what is there said and done, the welfare of the community depends.
Where would be our confidence in the government of the country or
in the legislature by which our laws are framed, and to whose charge
the great interests of the country are committed,-where would be
our attachment to the constitution under which we live,-if the
proceedings of the great council of the realm were shrouded in
secresy and concealed from the knowledge of the nation? How could
the communications between the representatives of the people and
their constituents, which are so essential to the working of the representative
system, be usefully carried on, if the constituencies were
kept in ignorance of what their representatives are doing? What
would become of the right of petitioning on all measures pending in
parliament, the undoubted right of the subject, if the people are to
be kept in ignorance of what is passing in either house? Can any
ma.n bring himself to doubt that the publicity given in modern times
to what passes in parliament is essential to the maintenance of the
relations subsisting between the government, the legislature, and the
country at large?" / d., at 89.
The fact that the debate was published in violation of a standing
order of Parliament was held to be irrelevant. "Independently of
the orders of the houses, there is nothing unlawful in publishing reports
of parliamentary proceedings. . . . [A]ny publication of its
debates made in contravention of its orders would be a matter between
the house and the publisher." Id., at 95.
Whether Wason was based on parliamentary privilege or on an
analogy to the publication of judicial proceedings is unimportant.
What is important to the instant litigation is that Wason firmly rejected
any implication in Stockdol,e that the informing function was
not among the legislative activities that a member of Parliament was
privileged to perform. Indeed, that same conclusion was reached by
Sir Gilbert Campion, a noted scholar, in his memorandum to the
House of Commons' Select Committee on the Official Secrets Acts.
After reviewing the republication cases through Wason, the memorandum
concluded:
"If ... a member circulated among his constituents a speech made
660 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408 U.S.
placed by him in the record of a congressional hearing,
is itself legislative activity protected by the privilege
of speech or debate. Whether or not that privilege protects
the publisher from prosecution or the Senator from
senatorial discipline, it certainly shields the Senator
from any grand jury inquiry about his part in the publication.
As we held in United States v. Johnson, 383
U. S. 169 (1966), neither a Congres.sman, nor his aides,
nor third parties may be made to testify concerning privileged
acts or their motives. That immunity, which
protects legislators "from deterrents to the uninhibited
discharge of their legislative duty," Tenney v. Brandhove,
341 U. S. 367, 377 (1951), is the essence of the Clause,
designed not for the legislators' "private indulgence but
for the public good." Id., at 377.
That privilege, moreover, may not be defeated merely
because a court finds that the publication was irregular
or the material irrelevant to legislative business. Legislative
immunity secures "to every member exemption
from prosecution, for every thing said or done by him, as
a representative, in the exercise of the functions of that
office ... whether the exercise was regular according
to the rules of the house, or irregular and against their
rules." Coffin v. Coffin, 4 Mass. 1, 27 (1808). Thus,
if the republication of this committee record was unauthorized
or even prohibited by the Senate rules, it
by him in Parliament in which he had disclosed information [ otherwise
subject to the Official Secrets Acts], it might be held on the
analogy of the principles which have been said to apply to prosecutions
for libel that he could not be proceeded against for disclosing
it to his constituents, unless, of course, the speech had been made in
a secret session. Even if the suggested analogy is not admitted, it
would be repugnant to common sense to hold that though the original
disclosure in the House was protected by parliamentary privilege,
the circulation of the speech among the member's constituents was
not." Minutes of Evidence Taken before the Select Committee on
the Official Secrets Acts 29 (1939).
GRAVEL v. UNITED STATES 661
606 BRENNAN, J., dissenting
is up to the Senate, not the Executive or Judiciary, to
fashion the appropriate sanction to discipline Senator
Gravel.
Similarly, the Government cannot strip Senator Gravel
of the immunity by asserting that his conduct "did not
relate to any pending Congressional business." Brief for
United States 41. The Senator has stated that his hearing
on the Pentagon Papers had a direct bearing on the
work of his Subcommittee on Buildings and Grounds, because
of the effect of the Vietnam war on the domestic
economy and the lack of sufficient federal funds to provide
adequate public facilities. If in fact the Senator is
wrong in this contention, and his conduct at the hearing
exceeded the subcommittee's jurisdiction, then again it is
the Senate that must call him to task. This Court has
permitted congressional witnesses to defend their refusal
to answer questions on the ground of nongermaneness.
Watkins v. United States, 354 U. S. 178 (1957). Here,
however, it is the Executive that seeks the aid of the judiciary,
not to protect individual rights, but to extend its
power of inquiry and interrogation into the privileged domain
of the legislature. In my view the Court should
refuse to turn the freedom of speech or debate on the
Government's notions of legislative propriety and relevance.
We would weaken the very structure of our constitutional
system by becoming a partner in this assault
on the separation of powers.
Whether the Speech or Debate Clause extends to the
informing function is an issue whose importance goes
beyond the fate of a single Senator or Congressman.
What is at stake is the right of an elected representative
to inform, and the public to be informed, about
matters relating directly to the workings of our Government.
The dialogue between Congress and people has
been recognized, from the days of our founding, as one
of the necessary elements of a representative system.
662 OCTOBER TERM, 1971
BRENNAN, J., dissenting 408U.S.
We should not retreat from that view merely because,
in the course of that dialogue, information may be revealed.
that is embarrassing to the other branches of
government or violates their notions of necessary secrecy.
A Member of Congress who exceeds the bounds of propriety
in performing this official task may be called to
answer by the other Members of his chamber. We do
violence to the fundamental concepts of privilege, however,
when we subject that same conduct to judicial
scrutiny at the instance of the Executive.2 The threat
of "prosecution by an unfriendly executive and conviction
by a hostile judiciary," United States v. Johnson,
383 U. S., at 179, that the Clause was designed to
avoid, can only lead to timidity in the performance of
this vital function. The Nation as a whole benefits
from the congressional investigation and exposure of
official corruption and deceit. It likewise suffers when
that exposure is replaced by muted criticism, carefully
hushed behind congressional walls.
II
Equally troubling in today's decision is the Court's
refusal to bar grand jury inquiry into the source of documents
received by the Senator and placed by him in
the hearing record. The receipt of materials for use
in a congressional hearing is an integral part of the
preparation for that legislative act. In United States
v. Johnson, supra, the Court acknowledged the privileged
nature of such preparatory steps, holding that
they, like the act itself and its motives, must be shielded
from scrutiny by the Executive and Judiciary. That
holding merely recognized the obvious-that speeches,
2 Different considerations may apply, of course, where the republicatjon
is attacked, not by the Executive, but- by private persons
seeking judicial redress for an alleged invasion of their constitutional
rights.
GRAVEL v. UNITED STATES 663
606 BRENNAN, J., dissenting
hearings, and the casting of votes require study and
planning in advance. It would accomplish little toward
the goal of legislative freedom to exempt an
official act from intimidating scrutiny, if other conduct
leading up to the act and intimately related to
it could be deterred by a similar threat. The reasoning
that guided that Court in Johnson is no less persuasive
today, and I see no basis, nor does the Court
offer any, for departing from it here. I would hold
that Senator Gravel's receipt of the Pentagon Papers,
including the name of the person from whom he received
them, may not be the subject of inquiry by the grand jury.
I would go further, however, and also exclude from
grand jury inquiry any knowledge that the Senator or
his aides might have concerning how the source himself
first came to possess the Papers. This immunity,
it seems to me, is essential to the performance of the
informing function. Corrupt and deceitful officers of
government do not often post for public examination
the evidence of their own misdeeds. That evidence
must be ferreted out, and often is, by fellow employees
and subordinates. Their willingness to reveal that information
and spark congressional inquiry may well
depend on assurances from their contact in Congress
that their identities and means of obtaining the evidence
will be held in strictest confidence. To permit the grand
jury to frustrate that expectation through an inquiry
of the Congressman and his aides can only dampen the
flow of information to the Congress and thus to the
American people. There is a similar risk, of course,
when the Member's own House requires him to break
the confidence. But the danger, it seems to me, is far
less if the Member's colleagues, and not an "unfriendly
executive" or "hostile judiciary," are charged with evaluating
the propriety of his conduct. In any event, assuming
that a Congressman can be required to reveal the
664 OCTOBER TERM, 1971
BKENNAN, J., dissenting 408U. S.
sources of his information and the methods used to obtain
that information, that power of inquiry, as required
by the Clause, is that of the Congressman's House, and
of that House only.
I respectfully dissent.
BRANZBURG v. HAYES 665
Syllabus
BRANZBURG v. HA YES ET AL., JUDGES
CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY
No. 70-85. Argued February 23, 1972-Decided June 29, 1972*
The First Amendment does not relieve a newspaper reporter of the
obligation that all citizens have to respond to a grand jury subpoena
and answer questions relevant to a criminal investigation,
and therefore the Amendment does not afford him a constitutional
testimonial privilege for an agreement he makes to conceal facts
relevant to a grand jury's investigation of a crime or to conceal
the niminRI conduct of his source or evidence thereoi. Pp. 679-
709.
No. 70-85, 461 S. W. 2d 345, and Kentucky Court of Appeals
judgment in unreported case of Branzburg v. Meigs; and No.
70-94, 358 Mass. 604, 266 N. E. 2d 297, affirmed; No. 70-57,
434 F. 2d 1081, reversed.
WmTE, J., wrote the opinion of the Court, in which BURGER,
C. J., and BLAcKMUN, POWELL, and REHNQUIST, JJ., joined.
POWELL, J., filed a concurring opinion, post, p. 709. Douaus, J.,
filed a dissenting opinion, post, p. 711. STEWART, J., filed a dissenting
opinion, in which BRENNAN and MARSHALL, JJ., joined, post,
p. 725.
Edgar A. Zingman argued the cause for petitioner in
No. 70-85. With him on the briefs was Robert C. Ewald.
E. Barrett Prettyman, Jr., argued the cause for petitioner
in No. 70-94. With him on the briefs was William H.
Carey. Solicitor General Griswold argued the cause for
the United States in No. 70-57. With him on the briefs
were Assistant Attorney General Wilson, Assistant Attorney
General Petersen, William Bradford Reynolds,
Beatrice Rosenberg, and Sidney M. Glazer.
*Together with No. 70-94, In re Pappas, on certiorari to the Supreme
Judicial Court of Massachusetts, also argued February 2:3,
1972, and No. 70-57, United States v. Caldwell, on certiorari to the
United States Court of Appeals for the Ninth Circuit, argued February
22, 1972.
666 OCTOBER TERM, 1971
Counsel 408 U.S.
Edwin A. Schroering, Jr., argued the cause for respondents
in No. 70---85. With him on the brief was
W. C. Fi.sher, Jr. Joseph J. Hurley, First Assistant Attorney
General, argued the cause for respondent, Commonwealth
of Massachusetts, in No. 70-94. With him
on the brief were Robert H. Quinn, Attorney General,
Walter H. Mayo III, Assistant Attorney General, and
Lawrence T. Bench, Deputy Assistant Attorney General.
Anthony G. Amsterdam argued the cause for respondent
in No. 70-57. With him on the brief were Jack Greenberg,
James M. Nabrit III, Charles Stephen Ralston, and
William Bennett Turner.
William Bradford Reynolds argued the cause for the
United States as amicus curiae urging affirmance in Nos.
70-85 and 70-94. With him on the brief were Solicitor
General Griswold, Assi.stant Attorney General Wilson,
and Beatrice Rosenberg.
Briefs of amici curiae urging affirmance in No. 70-57
and reversal in N os. 70---85 and 70--94 were filed by
Alexander M. Bickel, Lawrence J. McKay, Floyd Abrams,
Daniel Sheehan, Corydon B. Dunham, Clarence J. Fried,
Alan J. Hruska, Robert S. Rifkind, Anthony A. Dean,
and Edward C. Wallace for New York Times Co., Inc.,
et al.; by Don H. Reuben, Lawrence Gunnels, Steven L.
Bashwiner, and Thomas F. Ging for Chicago Tribune
Co.; by Arthur B. Hanson for the American Newspaper
Publishers Association; and by Irving Leuchter for the
American Newspaper Guild, AFL--CIO, CLC.
John T. Corrigan filed a brief for the National District
Attorneys Association urging reversal in No. 70-57 and
affirmance in No. 70-94.
Briefs of amici curiae urging affirmance in No. 70-57
were filed by Irwin Karp for the Authors League of
America, Inc.; by W. Theodore Pierson and J. Laurent
BRANZBURG v. HAYES 667
065 Opinion of the Court
Scharff for the Radio Television News Directors Association;
and by Earle K. Moore and Samuel Rabinove for
the Office of Communication of the United Church of
Christ et al.
Briefs of amici curiae in No. 70-57 were filed by Leo P.
Larkin, Jr., Stanley Godofsky, and John J. Sheehy for
Washington Post Co. et al.; by Richard M. Schmidt, Jr.,
for the American Society of Newspaper Editors et al.; by
Roger A. Clark for the National Press Photographers
Association, Inc.; and by Melvin L. Wulf, Paul N. Halvonik,
A. L. Wirin, Fred Okrand, and Lawrence R. Sperber
for the American Civil Liberties Union et al.
Opinion of the Court by MR. JuSTICE WHITE, announced
by THE CHIEF JuSTICE.
The issue in these cases is whether requiring newsmen
to appear and testify before state or federal grand
juries abridges the freedom of spee0h and press guaranteed
by the First Amendment. We hold that it does
not.
I
The writ of certiorari in No. 70-85, Branzbwg v.
Hayes and Meigs, brings before us two judgments of
the Kentucky Court of Appeals, both involving petitioner
Branz burg, a staff reporter for the Courier-Journal,
a daily newspaper published in Louisville, Kentucky.
On November 15, 1969, the Courier-Journal carried
a story under petitioner's by-line describing in detail
his observations of two young residents of Jefferson
County synthesizing hashish from marihuana, an activity
which, they asserted, earned them about $5,000 in
three weeks. The article included a photograph of a
pair of hands working above a laboratory table on which
was a substance identified by the caption as hashish.
The article stated that petitioner had promised not to
668 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
reveal the identity of the two hashish makers.1 Petitioner
was shortly subpoenaed by the Jefferson County
grand jury; he appeared, but refused to identify the
individuals he had seen possessing marihuana or the
persons he had seen making hashish from marihuana.2
A state trial court judge 3 ordered petitioner to answer
these questions and rejected his contention that the
Kentucky reporters' privilege statute, Ky. Rev. Stat.
§ 421.100 (1962),4 the First Amendment of the United
States Constitution, or §§ 1, 2, and 8 of the Kentucky
Constitution authorized his refusal to answer. Petitioner
then sought prohibition and mandamus in the
Kentucky Court of Appeals on the same grounds, but the
Court of Appeals denied the petition. Branzburg v.
1 The article contained the following paragraph: "'I don't know
why I'm letting you do this story,' [one informant] said quietly.
'To make the narcs (narcotics detectives) mad, I guess. That's the
main reason.' However, Larry and his partner asked for and received
a promise that their names would be changed." App. 3-4.
2 The Foreman of the grand jury reported that petitioner Branzburg
had refused to answer the following two questions: "# 1. On
November 12, or 13, 1969, who was the person or persons you observed
in possession of Marijuana, about which you wrote an article
in the Courier-Journal on November 15, 1969? #2, On November
12, or 13, 1969, who was the person or persons you observed
compounding Marijuana, 1,roducing same to a compound known as
Hashish?" App. 6.
3 Judge J. Miles Pound. The respondent in this case, Hon. John
P. Hayes, is the successor of Judge Pound.
4 Ky. Rev. Stat. § 421.100 provides:
"No person shall be compelled to disclose in any legal proceeding
or trial before any court, or before any grand or petit jury, or before
the presiding officer of any tribunal, or his agent or agents, or
before the General Assembly, or any committee thereof, or before
any city or county legislative body, or any committee thereof, or
elsewhere, the source of any information procured or obtained by
him, and published in a newspaper or by a radio or television broadcasting
station by which he is engaged or employed, or with which
he is connected."
BRANZBURG v. HAYES 669
665 Opinion of the Court
Pound, 461 S. W. 2d 345 (1970), as modified on denial
of rehearing, Jan. 22, 1971. It held that petitioner
had abandoned his First Amendment argument in a
supplemental memorandum he had filed and tacitly
rejected his argument based on the Kentucky Constitution.
It also construed Ky. Rev. Stat. § 421.100 as
affording a newsman the privilege of refusing to divulge
the identity of an informant who supplied him with
information, but held that the statute did not permit
a reporter to refuse to testify about events he had observed
personally, including the identities of those persons
he had observed.
The second case involving petitioner Branzburg arose
out of his later story published on January 10, 1971,
which described in detail the use of drugs in Frankfort,
Kentucky. The article reported that in order to provide
a comprehensive survey of the "drug scene" in
Frankfort, petitioner had "spent two weeks interviewing
several dozen drug users in the capital city" and
had seen some of them smoking marihuana. A number
of conversations with and observations of several
unnamed drug users were recounted. Subpoenaed
to appear before a Franklin County grand jury "to
testify in the matter of violation of statutes concerning
use and sale of drugs," petitioner Branzburg moved
to quash the summons; 5 the motion was denied, al-
5 Petitioner's Motion to Quash argued:
"If Mr. Branzburg were required to disclose these confidences to
the Grand Jury, or any other person, he would thereby destroy the
relationship of trust which he presently enjoys with those in the
drug culture. They would refuse to speak to him; they would become
even more reluctant than they are now to speak to any newsman;
and the news media would thereby be vitally hampered in
their ability to cover the views and activities of those involved in
the drug culture.
"The inevitable effect of the subpoena issued to Mr. Branzburg,
if it not be quashed by this Court, will be to suppress
670 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
though an order was issued protecting Branzburg from
revealing "confidential associations, sources or information"
but requiring that he "answer any questions which
concern or pertain to any criminal act, the commission of
which was actually observed by [him]." Prior to the
time he was slated to appear before the grand jury, petitioner
sought mandamus and prohibition from the Kentucky
Court of Appeals, arguing that if he were forced to
go before the grand jury or to answer questions regarding
the identity of informants or disclose information
given to him in confidence, his effectiveness as a
reporter would be greatly damaged. The Court of Appeals
once again denied the requested writs, reaffirming
its construction of Ky. Rev. Stat. § 421.100, and rejecting
petitioner's claim of a First Amendment privilege.
It distinguished Caldwell v. United States, 434 F. 2d
1081 (CA9 1970), and it also announced its "misgivings"
about that decision, asserting that it represented "a
drastic departure from the generally recognized rule
that the sources of information of a newspaper reporter
are not privileged under the First Amendment." It
characterized petitioner's fear that his ability to obtain
vital First Amendment freedoms of Mr. Branzburg, of the Courier-
Journal, of the news media, and of those involved in the drug
culture by driving a wedge of distrust and silence between the
news media and the drug culture. This Court should not sanction
a use of its process entailing so drastic an incursion upon First Amendment
freedoms in the absence of compelling Commonwealth interest
in requiring Mr. Bra.nzburg's appearance before the Grand Jury.
It is insufficient merely to protect Mr. Branzburg's right to silence
after he appears before the Grand Jury. This Court should totally
excuse Mr. Branzburg from responding to the subpoena and even
entering the Grand Jury room. Once Mr. Branzburg is required
to go behind the closed doors of the Grand Jury room, his effectiveness
as a reporter in these areas is totally destroyed. The secrecy
that surrounds Grand Jury testimony necessarily introduces uncertainties
in the minds of those who fear a betrayal of their confidences."
App. 43-44.
BRANZBURG v. HAYES 671
665 Opinion of the Court
news would be destroyed as "so tenuous that it does
not, in the opinion of this court, present an issue of
abridgement of the freedom of the press within the meaning
of that term as used in the Constitution of the United
States."
Petitioner sought a writ of certiorari to review both
judgments of the Kentucky Court of Appeals, and we
granted the writ.6 402 U. S. 942 (1971).
6 After the Kentucky Court of Appeals' decision in Branzburg v.
Meigs was announced, petitioner filed a rehearing motion in Branzburg
v. Pound suggesting that the court had not passed upon his
First Amendment argument and calling to the court's attention the
recent Ninth Circuit decision in Cai,dwell v. United State8, 434 F.
2d 1081 (1970). On Jan. 22, 1971, the court denied petitioner's
motion and filed an amended opinion in the case, adding a footnote,
461 S. W. 2d 345, 346 n. 1, to indicate that petitioner had
abandoned his First Amendment argument and elected to rely
wholly on Ky. Rev. Stat. § 421.100 when he filed a Supplemental
Memorandum before oral argument. In his Petition for Prohibition
and Mandamus, petitioner had clearly relied on the First
Amendment, and he had filed his Supplemental Memorandum in
response to the State's Memorandum in Opposition to the granting
of the writs. As its title indicates, this Memorandum was complementary
to petitioner's earlier Petition, and it dea.Jt primarily
with the State's construct-ion of the phrase "source of any information"
in Ky. Rev. Stat. § 421.100. The passage that the
Kentucky Court of Appeab cited to indicate abandonment of petitioner's
First Amendment claim is as follows:
"Thus, the controversy continues as to whether a newsman's source
of information should be privileged. However, that question is not
before the Court in this case. The Legislature of Kentucky has
settled the issue, having derided that a newsman's source of information
is to be privileged. Because of this there is no point in
citing Professor Wigmore and other authorities who speak against
the grant of such a privilege. The question has been many times
debated, and the Legislature has spoken. The only question before
the Court is too construction of the term 'source of information' as
it was intended by the Legislature."
Though the passage itself is somewhat unclear, the surrounding discussion
indicates that petitioner was asserting here that the ques672
OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
In re Pappa~, No. 70-94, originated when petitioner
Pappas, a television newsman-photographer working out
of the Providence, Rhode Island, office of a New Bedford,
Massachusetts, television station, was called to New
Bedford on July 30, 1970, to report on civil disorders
there which involved fires and other turmoil. He intended
to cover a Black Panther news conference at
that group's headquarters in a boarded-up store. Petitioner
found the streets around the store barricaded,
but he ultimately gained entrance to the area and
recorded and photographed a prepared statement read
by one of the Black Panther leaders at about 3 p. m.'
He then asked for and received permission to reenter
the area. Returning at about 9 o' clock, he
was allowed to enter and remain inside Panther headquarters.
As a condition of entry, Pappas agreed not
to disclose anything he saw or heard inside the store
except an anticipated police raid, which Pappas, "on
his own," was free to photograph and report as he
wished. Pappas stayed inside the headquarters for
about three hours, but there was no police raid, and petitioner
wrote no story and did not otherwise reveal what
had occurred in the store while he was there. Two
months later, petitioner was summoned before the Bristol
tion of whether a common-law privilege should be recognized was
irrelevant since the legislature had already enacted a statute. In
his earlier discussion, petitioner had analyzed certain cases in which
the First Amendment argument was made but indicated that it was
not necessary to reach this question if the statutory phrase "source
of any information" were interpreted expansively. We do not interpret
this discussion as indicating that petitioner was abandoning his
First Amendment claim if the Kentucky Court of Appeals did not
agree with his statutory interpretation argument, and we hold that
the constitutional question in Branzburg v. Pound was properly
preserved for review.
7 Petitioner's news film~ of this event were made available to the
Bristol County District Attorney. App. 4.
BRANZBURG v. HAYES 673
665 Opinion of the Court
County Grand Jury and appeared, answered questions as
to his name, address, employment, and what he had seen
and heard outside Panther headquarters, but refused to
answer any questions about what had taken place inside
headquarters while he was there, claiming that
the First Amendment afforded him a privilege to protect
confidential informants and their information. A
second summons was then served upon him, again directing
him to appear before the grand jury and "to
give such evidence as he knows relating to any matters
which may be inquired of on behalf of the Commonwealth
before . . . the Grand Jury." His motion to
quash on First Amendment and other grounds was denied
by the trial judge who, noting the absence of a
statutory newsman's privilege in Massachusetts, ruled
that petitioner had no constitutional privilege to refuse
to divulge to the grand jury what he had seen and
heard, including the identity of persons he had observed.
The case was reported for decision to the Supreme Judicial
Court of Massachusetts.8 The record there did
not include a transcript of the hearing on the motion
to quash, nor did it reveal the specific questions petitioner
had refused to answer, the expected nature of
his testimony, the nature of the grand jury investigation,
or the likelihood of the grand jury's securing the information
it sought from petitioner by other means.0 The
8 The case was reported by the superior court directly to the
Supreme Judicial Court for an interlocutory ruling under Mass.
Gen. Laws, c. 278, § 30A and Mass. Gen. Laws, c. 231, § 111 ( 1959).
The Supreme Judicial Court's decision appears at 358 Mass. 604,
266 N. E. 2d 297 (1971).
9 "We do not have before us the text of any specific questions
which Pappas has refused to answer before the grand jury, or any
petition to hold him for contempt for his refusal. We have only
general statements concerning (a) the inquiries of the grand jury,
and (b) the materiality of the testimony sought from Pappas. The
record does not show the expected nature of his testimony or what
674 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
Supreme Judicial Court, however, took "judicial notice
that in July, 1970, there were serious civil disorders
in New Bedford, which involved street barricades, exclusion
of the public from certain streets, fires, and similar
turmoil. We were told at the arguments that there
was gunfire in certain streets. We assume that the
grand jury investigation was an appropriate effort
to discover and indict those responsible for criminal
acts." 358 Mass. 604, 607, 266 N. E. 2d 297,299 (1971).
The court then reaffirmed prior Massachusetts holdings
that testimonial privileges were "exceptional" and "limited,"
stating that " [ t] he principle that the public 'has a
right to every man's evidence'" had usually been preferred,
in the Commonwealth, to countervailing interests.
Ibid. The court rejected the holding of the
Ninth Circuit in Caldwell v. United States, supra, and "adhere
[ d] to the view that there exists no constitutional
newsman's privilege, either qualified or absolute, to refuse
to appear and testify before a court or grand jury." 10
358 Mass., at 612, 266 N. E. 2d, at 302-303. Any adverse
effect upon the free dissemination of news by virtue of
petitioner's being called to testify was deemed to be
only "indirect, theoretical, and uncertain." I d., at
612, 266 N. E. 2d, at 302. The court concluded that
" [ t] he obligation of newsmen . . . is that of every citizen
... to appear when summoned, with relevant written
or other material when required, and to answer
relevant and reasonable inquiries." Id., at 612, 266
N. E. 2d, at 303. The court nevertheless noted that
grand juries were subject to supervision by the presidlikelihood
there is of being able to obtain that testimony from persons
other than news gatherers." 358 Mass., at 606-607, 266 N. E. 2d, at
299 (footnote omitted).
10 The court expressly declined to consider, however, appearances
of newsmen before legislative or administrative bodies. Id., at
612 n. 10, 266 N. E. 2d, at 303 n. 10.
BRANZBURG v. HAYES 675
665 Opinion of the Court
ing judge, who had the duty "to prevent oppressive,
unnecessary, irrelevant, and other improper inquiry and
investigation," ibid., to insure that a witness' Fifth
Amendment rights were not infringed, and to assess the
propriety, necessity, and pertinence of the probable
testimony to the investigation in progress.11 The burden
was deemed to be on the witness to establish the
impropriety of the summons or the questions asked.
The denial of the motion to quash was affirmed and
we granted a writ of certiorari to petitioner Pappas. 402 u. s. 942 (1971).
United States v. Caldwell, No. 70--57, arose from subpoenas
issued by a federal grand jury in the Northern
District of California to respondent Earl Caldwell, a
reporter for the New York Times assigned to cover
the Black Panther Party and other black militant groups.
A subpoena .duces tecum was served on respondent on
February 2, 1970, ordering him to appear before the
grand jury to testify and to bring with him notes and
tape recordings of interviews given him for publication
by officers and spokesmen of the Black Panther
Party concerning the aims, purposes, and activities of
that organization.12 Respondent objected to the scope
11 The court noted that "a presiding judge may consider in his
discretion" the argument that the use of newsmen as witnesses is
likely to result in unnecessary or burdensome use of their work
product, id., at 614 n. 13, 266 N. E. 2d, at 304 n. 13, and cautioned
that: "We do not suggest that a general investigation of mere political
or group association of persons, without substantial relation
to criminal events, may not be viewed by a judge in a somewhat
different manner from an investigation of particular ~riminRl events
concerning which a newsman may have knowledge." Id., at 614
n. 14, 266 N. E. 2d, at 304 n. 14.
12 The subpoena ordered production of " [ n] otes and tape recordings
of interviews covering the period from January 1, 1969, to date,
reflecting statements made for publication by officers and spokesmen
for the Black Panther Party concerning the aims and purposes
676 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
of this subpoena, and an agreement between his counsel
and the Government attorneys resulted in a continuance.
A second subpoena, served on March 16, omitted
the documentary requirement and simply ordered Caldwell
"to appear ... to testify before the Grand Jury."
Respondent and his employer, the New York Times,13
moved to quash on the ground that the unlimited
breadth of the subpoenas and the fact that Caldwell
would have to appear in secret before the grand jury
would destroy his working relationship with the Black
Panther Party and "suppress vital First Amendment
freedoms . . . by driving a wedge of distrust and
silence between the news media and the militants."
App. 7. Respondent argued that "so drastic an incursion
upon First Amendment freedoms" should not
be permitted "in the absence of a compelling governmental
interest-not shown here--in requiring Mr. Caldwell's
appearance before the grand jury." Ibid. The
motion was supported by amicus curiae memoranda
from other publishing concerns and by affidavits from
newsmen asserting the unfavorable impact on news
sources of requiring reporters to appear before grand
juries. The Government filed three memoranda in opposition
to the motion to quash, each supported by
affidavits. These documents stated that the grand jury
was investigating, among other things, possible violations
of a number of criminal statutes, including 18
U.S. C. § 871 (threats against the President), 18 U.S. C.
of said organization and the activities of said organization, its officers,
staff, personnel, and members, including specifically but not
limited to interviews given by David Hilliard and Raymond 'Masai'
Hewitt." App. 20.
13 The New York Timeoi was granted standing to intervene as a
party on the motion to quash the subpoenas. Application of Caldwell,
311 F. Supp. 358, 359 (ND Cal, 1970). It did not file an
appeal from the District Court's contempt citation, and it did not
seek certiorari here. It has filed an amicu.s curiae brief, however.
BRANZBURG v. HAYES 677
665 Opinion of the Court
§ 1751 (assassination, attempts to assassinate, conspiracy
to assassinate the President), 18 U. S. C. § 231 ( civil
disorders), 18 U. S. C. § 2101 (interstate travel to incite
a riot), and 18 U.S. C. § 1341 (mail frauds and swindles).
It was recited that on November 15, 1969, an officer
of the Black Panther Party made a publicly televised
speech in which he had declared that " [ w] e will
kill Richard Nixon" and that this threat had been repeated
in three subsequent issues of the Party newspaper.
App. 66, 77. Also referred to were various
writings by Caldwell about the Black Panther Party,
including an article published in the New York Times
on December 14, 1969, stating that "[i] n their role as
the vanguard in a revolutionary struggle the Panthers
have picked up guns," and quoting the Chief of Staff
of the Party as declaring: "We advocate the very
direct overthrow of the Government by way of force
and violence. By picking up guns and moving against
it because we recognize it as being oppressive and in
recognizing that we know that the only solution to it
is armed struggle [sic]." App. 62. The Government
also stated that the Chief of Staff of the Party had
been indicted by the grand jury on December 3, 1969,
for uttering threats against the life of the President
in violation of 18 U. S. C. § 871 and that various efforts
had been made to secure evidence of crimes under investigation
through the immunization of persons allegedly
associated with the Black Panther Party.
On April 6, the District Court denied the motion to
quash, Application of Caldwell, 311 F. Supp. 358 (ND
Cal. 1970), on the ground that "every person within the
jurisdiction of the government" is bound to testify upon
being properly summoned. Id., at 360 (emphasis in original).
Nevertheless, the court accepted respondent's First
Amendment arguments to the extent of i~uing a protective
order. providing that although respondent had to di678
OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
vulge whatever information had been given to him for
publication, he "shall not be required to reveal confidential
associations, sources or information received, developed
or maintained by him as a professional journalist in
the course of his efforts to gather news for dissemination
to the public through the press or other news media."
The court held that the First Amendment afforded
respondent a privilege to refuse disclosure of such confidential
information until there had been "a showing
by the Government of a compelling and overriding
national interest in requiring Mr. Caldwell's testimony
which cannot be served by any alternative means." Id.,
at 362.
Subsequently," the term of the grand jury expired, a
new grand jury was convened, and a new subpoena
ad testificandum was issued and served on May 22,
1970. A new motion to quash by respondent and memorandum
in opposition by the Government were filed,
and, by stipulation of the parties, the motion was submitted
on the prior record. The court denied the motion
to quash, repeating the protective provisions in its prior
order but this time directing Caldwell to appear before
the grand jury pursuant to the May 22 subpoena. Respondent
refused to appear before the grand jury, and the
court issued an order to show cause why he should not be
held in contempt. Upon his further refusal to go before
the grand jury, respondent was ordered committed
for contempt until such time as he complied with the
court's order or until the expiration of the term of the
grand jury.
u Respondent appealed from the District Court's April 6 denial
of his motion to quash on April 17, 1970, and the Government
moved to dismiss that appeal on the ground that the order was
interlocutory. On May 12, 1970, the Ninth Circuit dismissed the
appeal without opinion.
BRANZBURG v. HAYES 679
665 Opinion of the Court
Respondent Caldwell appealed the contempt order,15
and the Court of Appeals reversed. Caldwell v. United
States, 434 F. 2d 1081 (CA9 1970). Viewing the issue
before it as whether Caldwell was required to appear
before the grand jury at all, rather than the scope of
permissible interrogation, the court first determined that
the First Amendment provided a qualified testimonial
privilege to newsmen; in its view, requiring a reporter
like Caldwell t-0 testify would deter his informants from
communicating with him in the future and would cause
him to censor his writings in an effort to avoid being
subpoenaed. Absent compelling reasons for requiring
his testimony, he was held privileged to withhold it.
The court also held, for similar First Amendment reasons,
that, absent some special showing of necessity by
the Government, attendance by Caldwell at a secret
meeting of the grand jury was something he was privileged
to refuse because of the potential impact of such
an appearance on the flow of news to the public. We
granted the United States' petition for certiorari.16 402
U. S. 942 (1971).
II
Petitioners Branzburg and Pappas and respondent
Caldwell press First Amendment claims that may be
simply put: that to gather news it is often necessary
to agree either not to identify the source of information
published or to publish only part of the facts
revealed, or both; that if the reporter is nevertheless
15 The Government did not file a cross-appeal and did not challenge
the validity of the District Court protective order in the
Court of Appeals.
16 The petition presented a single question: "Whether a newspa
per reporter who has published articles about an organization can,
under the First Amendment, properly refuse to appear before a
grand jury investigating possible crimes by members of that
organization who have been quoted in the published articles."
680 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
forced to reveal these confidences to a grand jury, the
source so identified and other confidential sources of
other reporters will be measurably deterred from furnishing
publishable information, all to the detriment of
the free flow of information protected by the First
Amendment. Although the newsmen in these cases do
not claim an absolute privilege against official interrogation
in all circumstances, they assert that the reporter
should not be forced either to appear or to testify before
a grand jury or at trial until and unless sufficient grounds
are shown for believing that the reporter possesses information
relevant to a crime the grand jury is investigating,
that the information the reporter has is unavailable from
other sources, and that the need for the information is sufficiently
compelling to override the claimed invasion of
First Amendment interests occasioned by the disclosure.
Principally relied upon are prior cases emphasizing the
importance of the First Amendment guarantees to individual
development and to our system of representative
government,11 decisions requiring that official action with
adverse impact on First Amendment rights be justified
by a public interest that is "compelling" or "paramount,"
18 and those precedents establishing the principle
that justifiable governmental goals may not be achieved
by unduly broad means having an unnecessary impact
11 Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967)
(opinion of Harlan, J.); New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964); Talley v. California, 362 U. S. 60, 64-65 (1960);
Bridges v. California, 314 U. S. 252, 263 (1941); Grosjean v. American
Press Co., 297 U. S. 233, 250 (1936); Near v. Minnesota,
283 u. s. 697, 722 (1931).
1 s NAACP v. Button, 371 U. S. 415, 439 ( 1963); Thomas v. Collins,
323 U.S. 516, 530 (1945); DeGregory v. Attorney General of
New Hampshire, 383 U. S. 825, 829 (1966); Bates v. Little Rock,
361 U. S. 516, 524 (1960); Schneider v. State, 308 U. S. 147, 161
(1939); NAACP v. Alabama, 357 U.S. 449, 464 (1958).
BRANZBURG v. HAYES 681
665 Opinion of the Court
on protected rights of speech, press, or association.19
The heart of the claim is that the burden on news
gathering resulting from compelling reporters to disclose
confidential information outweighs any public interest
in obtaining the information.20
We do not question the significance of free speech,
press, or assembly to the country's welfare. Nor is it
suggested that news gathering does not qualify for First
Amendment protection; without some protection for
seeking out the news, freedom of the press could be
eviscerated. But these cases involve no intrusions upon
speech or assembly, no prior restraint or restriction on
what the press may publish, and no express or implied
command that the press publish what it prefers to withhold.
No exaction or tax for the privilege of publishing,
and no penalty, civil or criminal, related to the
content of published material is at issue here. The
use of confidential sources by the press is not forbidden
or restricted; reporters remain free to seek news from
19 Freedman v. Maryland, 380 U. S. 51, 56 (1965); NAACP v.
Alabama, 377 U. S. 288, 307 (1964); Martin v. City of Struthers,
319 U. S. 141, 147 (1943); Elfbrandt v. Russell, 384 U. S. 11, 18
(1966).
20 There has been a great deal of writing in recent years on the
existence of a newsman'!" constitutional right of nondisclosure of
confidential information. See, e. g., Beaver, The Newsman's Code,
The Claim of Privilege and Everyman's Right to Evidence, 47 Or('
L. Rev. 243 (1968); Guest & Stanzler, The Constitutional Argument
for Newsmen Concealing Their Sources, 64 Nw. U. L. Rev.
18 (1969); Note, Reporters and Their Sources: The Constitutional
Right to a Confidential Relationship, 80 Yale L. J. 317 (1970);
Comment, The Newsman's Privilege: Government Investigations,
Criminal Prosecutions and Private Litigation, 58 Calif. L. Rev. 1198
(1970); Note, The Right of the Press to Gather Information, 71
Col. L. Rev. 838 (1971); Nelson, The Newsmen's Privilege Against
Disclosure of Confidential Sources and Information, 24 Vand. L. Rev.
667 (1971).
682 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
any source by means within the law. No attempt is
made to require the press to publish its sources of information
or indiscriminately to disclose them on request.
The sole issue before us is the obligation of reporters
to respond to grand jury subpoenas as other citizens
do and to answer questions relevant to an investigation
into the commission of crime. Citizens generally are
not constitutionally immune from grand jury subpoenas;
and neither the First Amendment nor any other constitutional
provision protects the average citizen from disclosing
to a grand jury information that he has received
in confidence.21 The claim is, however, that reporters
are exempt from these obligations because if forced to
respond to subpoenas and identify their sources or disclose
other confidences, their informants will refuse or
be reluctant to furnish newsworthy information in the
future. This asserted burden on news gathering is said
to make compelled testimony from newsmen constitutionally
suspect and to require a privileged position for
them.
It is clear that the First Amendment does not invalidate
every incidental burdening of the press that may
result from the enforcement of civil or criminal statutes
of general applicability. Under prior cases, otherwise
valid laws serving substantial public interests may be
enforced against the press as against others, despite
21 "In general, then, the mere fact that a communication was made
in express confidence, or in the implied confidence of a confidential
relation, does not create a privilege.
" ... No pledge of privacy nor oath of secrecy can avail against
demand for the truth in a court of justice." 8 ,T. Wigmore, Evidence
§ 2286 (McNaughton rev. 1961). This was not always the rule at
common law, however. In 17th century England, the obligations of
honor among gentlemen were occasionally recognized as privileging
from compulsory disclosure information obtained in exchange for a
promise of confidence. See Bulstrod v. Letchmere, 2 Freem. 6, 22
Eng. Rep. 1019 (1676); Lord Grey':J Trial, 9 How. St. Tr. 127 (1682).
BRANZBURG v. HAYES 683
665 Opinion of the Court
the possible burden that may be imposed. The Court
has emphasized that "[t]he 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). It was there
held that the Associated Press, a news-gathering
and disseminating organization, was not exempt from
the requirements of the National Labor Relations Act.
The holding was reaffirmed in Oklahoma Press Publ-ishing
Co. v. Walling, 327 U.S. 186, 192-193 (1946), where
the Court rejected the claim that applying the Fair
Labor Standards Act to a newspaper publishing business
would abridge the freedom of press guaranteed
by the First Amendment. See also Mabee v. White
Plains Publ-ishing Co., 327 U.S. 178 (1946). Associated
Press v. United States, 326 U. S. 1 (1945), similarly
overruled assertions that the First Amendment precluded
application of the Sherman Act to a newsgathering
and disseminating organization. Cf. Indiana
Farmer's Guide Publishing Co. v. Prairie Farmer Publishing
Co., 293 U. S. 268, 276 (1934); Citizen Publ-ishing
Co. v. United States, 394 U. S. 131, 139 (1969);
Lorain Journal Co. v. United States, 342 U. S. 143, 155-
156 (1951). Likewise, a newspaper may be subjected
to nondiscriminatory forms of general taxation. Grosjean
v. American Press Co., 297 U. S. 233, 250 ( 1936);
Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943).
The prevailing view is that the press is not free to
publish with impunity everything and anything it desires
to publish. Although it may deter or regulate what
is said or published, the press may not circulate knowing
or reckless falsehoods damaging to private reputation
without subjecting itself to liability for damages,
including punitive damages, or even criminal prosecution.
See New York Times Co. v. Sullivan, 376 U. S. 254,
684 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
279-280 (1964); Garrison v. Louisiana, 379 U. S. 64, 74
(1964); Curtis Publishing Co. v. Butts, 388 U. S. 130,
147 (1967) (opinion of Harlan, J.,); Monitor Patriot
Co. v. Roy, 401 U. S. 265, 277 (1971). A newspaper
or a journalist may also be punished for contempt of
court, in appropriate circumstances. Craig v. Harney,
331 u. s. 367, 377-378 (1947).
It has generally been held that the First Amendment
does not guarantee the press a constitutional right of
special access to information not available to the public
generally. Zemel v. Rusk, 381 U. S. 1, 16-17 (1965);
New York Times Co. v. United States, 403 U.S. 713, 728-
730 (1971), (STEWART, J., concurring); Tribune Remew
Publishing Co. v. Thomas, 254 F. 2d 883,885 (CA3 1958);
In the Matter of United Press Assns. v. Valente, 308
N. Y. 71, 77, 123 N. E. 2d 777, 778 (1954). In Zemel v.
Rusk, supra, for example, the Court sustained the Government's
refusal to validate passports to Cuba even
though that restriction "render [ ed] less than wholly free
the flow of information concerning that country." Id., at
16. The ban on travel was held constitutional, for "[t]he
right to speak and publish does not carry with it the unrestrained
right to gather information." Id., at 17.22
Despite the fact that news gathering may be hampered,
the press is regularly excluded from grand jury
proceedings, our own conferences, the meetings of other
official bodies gathered in executive session, and the
meetings of private organizations. Newsmen have no
constitutional right of access to the scenes of crime or
22 "There are few restrictions on action which could not be clothed
by ingenious argument in the garb of decreased data flow. For
example, the prohibition of unauthorized entry into the White House
diminishes the citizen's opportunities to gather information he might
find relevant to his opinion of the way the country is being run, but
that does not make entry into the White House a First Amendment
right." 381 U. S., at 16-17.
BRANZBURG v. HAYES 685
665 Opinion of the Court
disaster when the general public is excluded, and they
may be prohibited from attending or publishing information
about trials if such restrictions are necessary to
assure a defendant a fair trial before an impartial tribunal.
In Sheppard v. Maxwell, 384 U. S. 333 (1966),
for example, the Court reversed a state court conviction
where the trial court failed to adopt "stricter rules
governing the use of the courtroom by newsmen, as
Sheppard's counsel requested," neglected to insulate witnesses
from the press, and made no "effort to control
the release of leads, information, and gossip to the press
by police officers, witnesses, and the counsel for both
sides." Id., at 358, 359. "[T]he trial court might well
have proscribed extrajudicial statements by any lawyer,
party, witness, or court official which divulged prejudicial
matters." Id., at 361. See also Estes v. Texas,
381 U. S. 532, 539-540 (1965); Rideau v. Louisiana,
373 u. s. 723, 726 (1963).
It is thus not surprising that the great weight of authority
is that newsmen are not exempt from the normal
duty of appearing before a grand jury and answering
questions relevant to a criminal investigation. At common
law, courts consistently refused to recognize the
existence of any privilege authorizing a newsman to
refuse to reveal confidential information to a grand jury.
See, e. g., Ex parte Lawrence, 116 Cal. 298, 48 P. 124
( 1897) ; Plunkett v. Hamilton, 136 Ga. 72, 70 S. E. 781
(1911); Clein v. State, 52 So. 2d 117 (Fla. 1950); In re
Grunow, 84 N. J. L. 235, 85 A. 1011 (1913); People
ex rel. Mooney v. Sheriff, 269 N. Y. 291, 199 N. E.
415 (1936); Joslyn v. People, 67 Colo. 297, 184 P. 375
(1919); Adams v. Associated Press, 46 F. R. D. 439
(SD Tex. 1969); Brewster v. Boston Herald-Traveler
Corp., 20 F. R. D. 416 (Mass. 1957). See generally
Annot., 7 A. L. R. 3d 591 (1966). In 1958, a news
gatherer asserted for the first time that the First Amend686
OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
ment exempted confidential information from public
disclosure pursuant to a subpoena issued in a civil suit,
Garland v. Torre, 259 F. 2d 545 (CA2), cert. denied,
358 U.S. 910 (1958), but the claim was denied, and this
argument has been almost uniformly rejected since then,
although there are occasional dicta that, in circumstances
not presented here, a newsman might be excused.
In re Goodfader, 45 Haw. 317, 367 P. 2d 472 (1961); In
re Taylor, 412 Pa. 32, 193 A. 2d 181 (1963); State v.
Buchanan, 250 Ore. 244, 436 P. 2d 729, cert. denied,
392 U. S. 905 ( 1968); Murphy v. Colorado (No. 19604,
Sup. Ct. Colo.), cert. denied, 365 U.S. 843 (1961) (unreported,
discussed in In re Goodfader, supra, at 366, 367
P. 2d, at 498 (Mizuha, J., dissenting)). These courts
have applied the presumption against the existence of
an asserted testimonial privilege, United States v. Bryan,
339 U. S. 323, 331 (1950), and have concluded that the
First Amendment interest asserted by the newsman
was outweighed by the general obligation of a citizen to
appear before a grand jury or at trial, pursuant to a
subpoena, and give what information he possesses. The
opinions of the state courts in Branzburg and Pappas
are typical of the prevailing view, although a few recent
cases, such as Caldwell, have recognized and given effect
to some form of constitutional newsman's privilege. See
State v. Knops, 49 Wis. 2d 647, 183 N. W. 2d 93 (1971)
(dictum); Alioto v. Cowles Communications, Inc., C. A.
No. 52150 (ND Cal. 1969); In re Grand Jury Witnesses,
322 F. Supp. 573 (ND Cal. 1970); People v. Dohrn,
Crim. No. 69:-3808 (Cook County, Ill., Cir. Ct. 1970).
The prevailing constitutional view of the newsman's
privilege is very much rooted in the ancient role of the
grand jury that has the dual function of determining
if there is probable cause to believe that a crime has
been committed and of protecting citizens against unBRANZBURG
v. HAYES 687
665 Opinion of the Court
founded criminal prosecutions.23 Grand jury proceedings
are constitutionally mandated for the institution of
federal criminal prosecutions for capital or other serious
crimes, and "its constitutional prerogatives are rooted
in long centuries of Anglo-American history." Hannah
v. Larche, 363 U. S. 420, 489-490 (1960) (Frankfurter,
J., concurring in result). The Fifth Amendment provides
that "[n]o person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury." 24 The adoption
of the grand jury "in our Constitution as the sole
method for preferring charges in serious criminal cases
shows the high place it held as an instrument of justice."
Costello v. United States, 350 U.S. 359,362 (1956). Although
state systems of criminal procedure differ greatly
among themselves, the grand jury is similarly guaranteed
by many state constitutions and plays an important role
in fair and effective law enforcement in the overwhelm-
23 "Historically, [ the grand jury] has been regarded as a primary
security to the innocent against hasty, malicious and oppressive
persecution; it sen·es the invaluable function in our society
of standing between the accuser and the accused . . . to determine
whether a charge is founded upon reason or was dictated by an
intimidating power or by malice and personal ill will." Wood v.
Georgia, 370 U. S. 375, 390 (1962) (footnote omitted).
24 It has been held that "infamous" punishments include confinement
at hard labor, United States v. Moreland, 258 U. S. 433
(1922); incarceration in a penitentiary, Mackin v. United States,
117 U. S. 348 (1886); and imprisonment for more than a year,
Barkman v. Sanford, 162 F. 2d 592 (CA5), cert. denied, 332 U.S.
816 (1947). Fed. Rule Crim. Proc. 7 (a) has codified these holdings:
"An offense which may be punished by death shall be prosecuted
by indictment. An offense which may be punished by imprisonment
for a term exceeding one year or at hard labor shall
be prosecuted by indictment or, if indictment is waived, it may be
prosecuted by information. Any other offense may be prosecuted by
indictment or by information."
688 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
ing majority of the States.25 Because its task is to
inquire into the existence of possible criminal conduct
and to return only well-founded indictments, its investigative
powers are necessarily broad. "It is a grand inquest,
a body with powers of investigation and inquisition,
the scope of whose inquiries is not to be limited
narrowly by questions of propriety or forecasts of the
probable result of the investigation, or by doubts
whether any particular individual will be found properly
subject to an accusation of crime." Blair v. United
States, 250 U.S. 273,282 (1919). Hence, the grand jury's
authority to subpoena witnesses is not only historic, id.,
at 279-281, but essential to its task. Although the
powers of the grand jury are not unlimited and are
subject to the supervision of a judge, the longstanding
principle that "the public ... has a right to every man's
evidence," except for those persons protected by a constitutional,
common-law, or statutory privilege, United
States v. Bryan, 339 U. S., at 331; Blackmer v. United
States, 284 U.S. 421, 438 (1932); 8 J. Wigmore, Evidence
§ 2192 (McNaughton rev. 1961), is particularly applicable
to grand jury proceedings.26
25 Although indictment by grand jury is not part of the due
process of law guaranteed to state criminal defendants by the Fourteenth
Amendment, Hurtado v. California, 110 U. S. 516 (1884), a
recent study reveals that 32 States require that certain kinds of criminal
prosecutions be initiated by indictment. Spain, The Grand
Jury, Past and Present: A Survey, 2 Am. Crim. L. Q. 119, 126-142
(1964). In the 18 States in which the prosecutor may proceed by
information, the grand jury is retained as an alternative means of
invoking the criminal process and as an investigative tool. Ibid.
26 Jeremy Bentham vividly illustrated this maxim:
"Are men of the first rank and consideration-are men high in officemen
whose time is not less valuable to the public than to themselves-
are such men to be forced to quit their business, their functions,
and what is more than all, their pleasure, at the beck of every
idle or malicious adversary, to dance attendance upon every petty
BRANZBURG v. HAYES 689
665 Opinion of the Court
A number of States have provided newsmen a statutory
privilege of varying breadth,21 but the majority
have not done so, and none has been provided by federal
statute.28 Until now the only testimonial privilege for
unofficial witnesses that is rooted in the Federal Concause?
Yes, as far as it is necessary, they and everybody ....
Were the Prince of Wales, the Archbishop of Canterbury, and the
Lord High Chancellor, to be passing by in the same coach, while a
chimney-sweeper and a barrow-woman were in dispute about a
halfpennyworth of apples, and the chimney-sweeper or the barrowwoman
were to think proper to call upon them for their evidence,
could they refuse it? No, most certainly." 4 The Works of Jeremy
Bentham 320-.'32 l ( J. Bowring ed. 1843).
In United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC
Va. 1807), Chief Justice Marshall, sitting on Circuit, opined that
in proper circumstances a subpoena could be issued to the President
of the United States.
27 Thus far, 17 States have provided some type of statutory protection
to a newsman's confidential sources:
Ala. Code, Tit. 7, § 370 (1960); Alaska Stat. § 09.25.150 (Supp.
1971); Ariz. Rev. Stat. Ann. § 12-2237 (Supp. 1971-1972); Ark.
Stat. Ann. § 43-917 (1964); Cal. Evid. Code § 1070 (Supp. 1972);
Ind. Ann. Stat. § 2-1733 (1968); Ky. Rev. Stat. § 421.100 (1962);
La. Rev. Stat. Ann. §§ 45: 1451-45: 1454 (Supp. 1972); Md. Ann.
Code, Art. 35, § 2 (1971); Mich. Comp. Laws § 767 .Sa (Supp. 1956),
Mich. Stat. Ann. § 28.945 (1) (1954); Mont. Rev. Codes Ann.
§ 93-601-2 (1964); Nev. Rev. Stat. § 49.275 (1971); K. J. Rev.
Stat. §§ 2A :84A-21, 2A :84A-29 (Supp. 1972-1973); N. M. Stat.
Ann. § 20-1-12.1 (1970); N. Y. Civ. Rights Law § 79-h (Supp.
1971-1972); Ohio Rev. Code Ann.§ 2739.12 (1954); Pa. Stat. Ann.,
Tit. 28, § 330 (Supp. 1972-1973).
28 Such legislation has been introduced, however. See, e. g.,
S. 1311, 92d Cong., 1st Sess. (1971); S. 3552, 91st Cong., 2d Sess.
(1970); H. R. 16328, H. R. 16704, 91st Cong., 2d Sess. (1970); S.
1851, 88th Cong., 1st Sess. (1963); H. R. 8519, H. R. 7787, 88th
Cong., 1st Sess. (1963); S. 965, 86th Cong., 1st Sess. (1959); H. R.
355, 86th Cong., 1st Sess. (1959). For a general analysis of proposed
congressional legislation, see Staff of Senate Committee on
the Judiciary, 89th Cong., 2d Sess., The Newsman's Privilege (Comm.
Print 1966) .
690 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
stitution is the Fifth Amendment privilege against compelled
self-incrimination. We are asked to create another
by interpreting the First Amendment to grant newsmen
a testimonial privilege that other citizens do not enjoy.
This we decline to do.29 Fair and effective law enforcement
aimed at providing security for the person and
property of the individual is a fundamental function
of government, and the grand jury plays an important,
constitutionally mandated role in this process. On the
records now before us, we perceive no basis for holding
that the public interest in law enforcement and in ensuring
effective grand jury proceedings is insufficient to
override the consequential, but uncertain, burden on
news gathering that is said to result from insisting
that reporters, like other citizens, respond to relevant
29 The creation of new testimonial privileges has been met with
disfavor by commentators since such privileges obstruct the search
for truth. Wigmore condemns such privileges as "so many derogations
from a positive general rule [that everyone is obligated to
testify when properly summoned]" and as "obstacle[s] to the administration
of justice." 8 J. Wigmore, Evidence § 2192 (McNaughton
rev. 1961). His criticism that "all privileges of exemption from
this duty are exceptional, and are therefore to be discountenanced,"
id., at § 2192, p. 73 (emphasis in original) has been frequently
echoed. Morgan, Foreword, Model Code of Evidence 22---30 (1942);
2 Z. Chafee, Government and Mass Communications 496-497 (1947);
Report of ABA Committee on Improvements in the Law of Evidence,
63 A. B. A. Reports 595 (1938); C. McCormick, Evidence 159
(2d ed. 1972); Chafec, Privileged Communications: Is Justice Served
or Obstructed by Closing the Doctor's Mouth on the Witness Stand?,
52 Yale L. J. 607 (1943); Ladd, Privileges, 1969 Law & the
Social Order 555, 556; 58 Am. J ur., Witnesses § 546 ( 1948) ; 97
C. J. S., Witnesses § 259 (1957); McMann v. Securities and Exchange
Commission, 87 F. 2d 377, 378 (CA2 1937) (L. Hand, J.).
Neither the ALI's Model Code of Evidence (1942), the Uniform
Rules of Evidence of the National Conference of Commissioners on
Uniform State Laws (1953), nor the Proposed Rules of Evidence for
the United States Courts and Magistrates (rev. ed. 1971) has included
a newsman's privilege.
BRANZBURG v. HAYES 691
665 Opinion of the Court
questions put to them in the course of a valid grand jury
investigation or criminal trial.
This conclusion itself involves no restraint on what
newspapers may publish or on the type or quality
of information reporters may seek to acquire, nor does
it threaten the vast bulk of confidential relationships between
reporters and their sources. Grand juries address
themselves to the issues of whether crimes have been
committed and who committed them. Only where news
sources themselves are implicated in crime or possess
information relevant to the grand jury's task need they
or the reporter be concerned about grand jury subpoenas.
Nothing before us indicates that a large number or percentage
of all confidential news sources falls into either
category and would in any way be deterred by our holding
that the Constitution does not, as it never has,
exempt the newsman from performing the citizen's normal
duty of appearing and furnishing information relevant
to the grand jury's task.
The preference for anonymity of those confidential
informants involved in actual criminal conduct is presumably
a product of their desire to escape criminal
prosecution, and this preference, while understandable,
is hardly deserving of constitutional protection. It
would be frivolous to assert---and no one does in these
cases-that the First Amendment, in the interest of
securing news or otherwise, confers a license on either
the reporter or his news sources to violate valid criminal
laws. Although stealing documents or private
wiretapping could provide newsworthy information,
neither reporter nor source is immune from conviction
for such conduct, whatever the impact on the flow of
news. Neither is immune, on First Amendment grounds,
from testifying against the other, before the grand jury
or at a criminal trial. The Amendment does not reach
so far as to override the interest of the public in en692
OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
suring that neither reporter nor source is invading the
rights of other citizens through reprehensible conduct
forbidden to all other persons. To assert the contrary
propositio11
"is to answer it, since it involves in its very statement
the contention that the freedom of the press
is the freedom to do wrong with impunity and implies
the right to frustrate and defeat the discharge
of those governmental duties upon the performance
of which the freedom of all, including that of the
press, depends. . . . It suffices to say that, however
complete is the right of the press to state public
things and discuss them, that right, as every other
right enjoyed in human society, is subject to the
restraints which separate right from wrong-doing."
Toledo Newspaper Co. v. United States, 247 U. S.
402, 419-420 (1918).30
Thus, we cannot seriously entertain the notion that
the First Amendment protects a newsman's agreement
to conceal the criminal conduct of his source, or evidence
thereof, on the theory that it is better to write
about crime than to do something about it. Insofar
as any reporter in these cases undertook not to reveal
or testify about the crime he witnessed, his claim of
privilege under the First Amendment presents no substantial
question. The crimes of news sources are no less
reprehensible and threatening to the public interest when
witnessed by a reporter than when they are not.
ao The holding in this case involved a construction of the Contempt
of Court Act of 1831, 4 Stat. 487, which permitted summary
trial of contempts "so near [to the court] as to obstruct the administration
of justice." The Court held that the Act required only
that the conduct have a "direct tendency to prevent and obstruct
the discharge of judicial duty." 247 U. S., at 419. This view was
overruled and the Act given a much narrower reading in Nye v.
United States, 313 U. 8. 33, 47-52 (1941). See Bloom v. Illinois,
391 U.S. 194, 205-206 (1968).
BRANZBURG v. HAYES 693
665 Opinion of the Court
There remain those situations where a source is not
engaged in criminal conduct but has information suggesting
illegal conduct by others. Newsmen frequently
receive information from such sources pursuant to a
tacit or express agreement to withhold the source's
name and suppress any information that the source
wishes not published. Such informants presumably
desire anonymity in order to avoid being entangled
as a witness in a criminal trial or grand jury investigation.
They may fear that disclosure will threaten their
job security or personal safety or that it will simply
result in dishonor or embarrassment.
The argument that the flow of news will be r:liminished
by compelling reporters to aid the grand jury
in a criminal investigation is not irrational, nor are
the records before us silent on the matter. But we
remain unclear how often and to what extent informers
are actually deterred from furnishing information when
newsmen are forced to testify before a grand jury. The
available data indicate that some newsmen rely a great
deal on confidential sources and that some informants
are particularly sensitive to the threat of exposure and
may be silenced if it is held by this Court that, ordinarily,
newsmen must testify pursuant to subpoenas,31
but the evidence fails to demonstrate that there would
be a significant constriction of the flow of news to the
public if this Court reaffirms the prior common-law
and constitutional rule regarding the testimonial obligations
of newsmen. Estimates of the inhibiting effect
of such subpoenas on the willingness of informants to
make disclosures to newsmen are widely divergent and
31 Respondent Caldwell attached a number of affidavits from
prominent newsmen to his initial motion to quash, which detail the
experiences of such journalists after they have been subpoenaed.
Appendix to No. 70-57, pp. 22-61.
694 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
to a great extent speculative.32 It would be difficult
to canvass the views of the informants themselves;
surveys of reporters on this topic are chiefly opinions
of predicted informant behavior and must be viewed
in the light of the professional self-interest of the interviewees.
33 Reliance by the press on confidential informants
does not mean that all such sources will in
fact dry up because of the later possible appearance
of the newsman before a grand jury. The reporter
may never be called and if he objects to testifying,
the prosecution may not insist. Also, the relationship
of many informants to the press is a symbiotic
one which is unlikely to be greatly inhibited by the
threat of subpoena: quite often, such informants are
members of a minority political or cultural group that
32 Cf., e. g., the results of a study conducted by Guest & Stanzler,
which appears as an appendix to their article, supra, n. 20. A
number of editors of daily newspapers of varying circulation were
asked the question, "Excluding one- or two-sentence gossip items,
on the average how many stories based on information received in
confidence are published in your paper each year? Very rough
estimate." Answers varied significantly, e. g., "Virtually innumerable,"
Tucson Daily Citizen (41,969 daily circ.), "Too many to
remember," Los Angeles Herald-Examiner (718,221 daily circ.),
"Occasionally," Denver Post (252,084 daily circ.), "Rarely," Cleveland
Plain Dealer (370,499 daily circ.), "Very rare, some politics,"
Oregon Journal (146,403 daily circ.). This study did not purport
to measure the extent of deterrence of informants caused by subpoenas
to the press.
33 In his Press Subpoenas: An Empirical and Legal Analysis, Study
Report of the Reporters' Committee on Freedom of the Press 6--12,
Prof. Vince Blasi discusses these methodological problems. Prof.
Blasi's survey found that slightly more than half of the 975 reporters
questioned said that they relied on regular confidential sources
for at least 10% of their stories. Id., at 21. Of this group of reporters,
only 8% were able to say with some certainty that their
professional functioning had been adversely affected by the threat
of subpoena; another 11 % were not certain whether or not they had
been adversely affected. Id., at 53.
BRANZBURG v. HAYES 695
665 Opinion of the Court
relies heavily on the media to propagate its views, publicize
its aims, and magnify its exposure to the public.
Moreover, grand juries characteristically conduct secret
proceedings, and law enforcement officers are themselves
experienced in dealing with informers, and have their own
methods for protecting them without interference with
the effective administration of justice. There is little before
us indicating that informants whose interest in
avoiding exposure is that it may threaten job security,
personal safety, or peace of mind, would in fact be in a
worse position, or would think they would be, if they
risked placing their trust in public officials as well as reporters.
We doubt if the informer who prefers anonymity
but is sincerely interested in furnishing evidence of
crime will always or very often be deterred by the prospect
of dealing with those public authorities characteristically
charged with the duty to protect the public
interest as well as his.
Accepting the fact, however, that an undetermined
number of informants not themselves implicated in crime
will nevertheless, for whatever reason, refuse to talk
to newsmen if they fear identification by a reporter
in an official investigation, we cannot accept the
argument that the public interest in possible future
news about crime from undisclosed, unverified sources
must take precedence over the public interest in pursuing
and prosecuting those crimes reported to the press
by informants and in thus deterring the commission of
such crimes in the future.
We note first that the privilege claimed is that of the
reporter, not the informant, and that if the authorities
independently identify the informant, neither his own
reluctance to testify nor the objection of the newsman
would shield him from grand jury inquiry, whatever
the impact on the flow of news or on his future usefulness
as a secret source of information. More impor696
OCTOBER TERM, 1971
Opinion of the Court 408U.S.
tant, it is obvious that agreements to conceal information
relevant to commission of crime have very little to recommend
them from the standpoint of public policy.
Historically, the common law recognized a duty to raise
the "hue and cry" and report felonies to the authorities.
3 * Misprision of a felony-that is, the concealment
of a felony "which a man knows, but never assented
to ... [so as to become] either principal or accessory,"
4 W. Blackstone, Commentaries *121, was often said to
be a common-law crime.35 The first Congress passed
a statute, 1 Stat. 113, § 6, as amended, 35 Stat. 1114,
§ 146, 62 Stat. 684, which is still in effect, defining a
federal crime of misprision:
"Whoever, having knowledge of the actual commission
of a felony cognizable by a court of the
United States, conceals and does not as soon as
possible make known the same to some judge or
other person in civil or military authority under
the United States, shall be [guilty of misprision]."
18 u. s. c. § 4.30
34 See Statute of Westminster First, 3 Edw. 1, c. 9, p. 43 (1275);
Statute of Westminster Second, 13 Edw. 1, c. 6, pp. 114--115 (1285);
Sheriffs Act of 1887, 50 & 51 Viet., c. 55, § 8 (1); 4 W. Blackst-0ne,
Commentaries *293-295; 2 W. Holdsworth, History of English Law
80-81, 101-102 (3d ed. 1927); 4 id., at 521-522.
35 See, e. g., Scrope's Case, referred to in 3 Coke's Institute 36;
Rex v. Cowper, 5 Mod. 206, 87 Eng. Rep. 611 (1696); Proceedings
under a Special Commi8.sion for the County of York, 31 How. St. Tr.
965, 969 (1813); Sykes v. Director of Public Prosecutions, [1961] 3
W. L. R. 371. But see Glazebrook, Misprision of Felony-Shadow
or Phantom?, 8 Am . .J. Legal Hist. 189 (1964). See also Act 5 & 6
Edw. 6, c. 11 (1552).
36 This statute has been construed, however, to require both knowledge
of a crime and some affinnative act of concealment or participation.
Bratton v. United States, 73 F. 2d 795 (CAIO 1934); United
States v. Farrar, 38 F. 2d 515, 516 (Mass.), aff'd on other grounds,
BRANZBURG v. HAYES 697
665 Opinion of the Court
It is apparent from this statute, as well as from our history
and that of England, that concealment of crime and
agreements to do so are not looked upon with favor.
Such conduct deserves no encomium, and we decline now
to afford it First Amendment protection by denigrating
the duty of a citizen, whether reporter or informer, to
respond to grand jury subpoena and answer relevant
questions put to him.
Of course, the press has the right to abide by its agreement
not to publish all the information it has, but the
right to withhold news is not equivalent to a First
Amendment exemption from the ordinary duty of all
other citizens to furnish relevant information to a grand
jury performing an important public function. Private
restraints on the flow of information are not so favored
by the First Amendment that they override all other
public interests. As Mr. Justice Black declared in another
context, "[f] reedom of the press from governmental interference
under the First Amendment does not sanction
repression of that freedom by private interests."
Associated Press v. United States, 326 U. S., at 20.
Neither are we now convinced that a virtually impenetrable
constitutional shield, beyond legislative or
judicial control, should be forged to protect a private
system of informers operated by the press to report on
criminal conduct, a system that would be unaccountable
to the public, would pose a threat to the citizen's justifiable
expectations of privacy, and would equally protect
well-intentioned informants and those who for pay
or otherwise betray their trust to their employer or
associates. The public through its elected and appointed
281 U. S. 624 (1930); United States v. Norman, 391 F. 2d 212
(CA6), cert. denied, 390 U.S. 1014 (1968); Lancey v. United States,
356 F. 2d 407 (CA9), cert. denied, 385 U.S. 922 (1966). Cf. Marbury
v. Brooks, 7 Wheat. 556, 575 (1822) (Marshall, C. J.).
698 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
law enforcement officers regularly utilizes informers, and
in proper circumstances may assert a privilege against
disclosing the identity of these informers. But
"[t]he purpose of the privilege is the furtherance
and protection of the public interest in effective
law enforcement. The privilege recognizes the obligation
of citizens to communicate their knowledge
of the commission of crimes to law-enforcement
officials and, by preserving their anonymity, encourages
them to perform that obligation." Roviaro
v. United States, 353 U. S. 53, 59 (1957).
Such informers enjoy no constitutional protection. Their
testimony is available to the public when desired by
grand juries or at criminal trials; their identity cannot
be concealed from the defendant when it is critical
to his case. Id., at 60-61, 62; McCray v. Illinois,
386 U. S. 300, 310 ( 1967); Smith v. Illinois, 390
U. S. 129, 131 ( 1968); Alford v. United States, 282
U. S. 687, 693 (1931). Clearly, this system is not
impervious to control by the judiciary and the decision
whether to unmask an informer or to continue
to profit by his anonymity is in public, not private,
hands. We think that it should remain there and that
public authorities should retain the options of either
insisting on the informer's testimony relevant to the
prosecution of crime or of seeking the benefit of further
information that his exposure might prevent.
We are admonished that refusal to provide a First
Amendment reporter's privilege will undermine the freedom
of the press to collect and disseminate news. But
this is not th~ lesson history teaches us. As noted
previously, the common law recognized no such privilege,
and the constitutional argument was not even
asserted until 1958. From the beginning of our country
the press has operated without constitutional proBRANZBURG
v. HAYES 699
665 Opinion of the Court
tection for press informants, and the press has flourished.
The existing constitutional rules have not been a serious
obstacle to either the development or retention of confidential
news sources by the press.31
It is said that currently press subpoenas have multiplied,
38 that mutual distrust and tension between press
and officialdom have increased, that reporting styles have
changed, and that there is now more need for confidential
sources, particularly where the press seeks news about
minority cultural and political groups or dissident organizations
suspicious of the law and public officials. These
developments, even if true, are treacherous grounds for
a far-reaching interpretation of the First Amendment
fastening a nationwide rule on courts, grand juries, and
prosecuting officials everywhere. The obligation to testify
in response to grand jury subpoenas will not threaten
these sources not involved with criminal conduct and
without information relevant to grand jury investigations,
and we cannot hold that the Constitution places the
sources in these two categories either above the law or
beyond its reach.
The argument for such a constitutional privilege rests
heavily on those cases holding that the infringement of
protected First Amendment rights must be no broader
than necessary to achieve a permissible governmental
purpose, see cases cited at n. 19, supra. We do not deal,
however, with a governmental institution that has abused
31 Though the constitutional argument for a newsman's privilege
has been put forward very recently, newsmen have contended for a
number of years that such a privilege was desirable. See, e. g., Siebert
& Ryniker, Press Winning Fight to Guard Sources, Editor &
Publisher, Sept. 1, 1934, pp. 9, 36-37; G. Bird & F. Merwin, The
Press and Society 592 ( 1971). The first newsman's privilege statute
was enacted by Maryland in 1896, and currently is codified as Md.
Ann. Code, Art. 35, § 2 ( 1971).
as A list of recent subpoenas to the news media is contained in the
appendix to the brief of amicus New York Times in No. 70-57.
700 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
its proper function, as a legislative committee does when
it "expose[s] for the sake of exposure." Watkins v.
United States, 354 U. S. 178, 200 (1957). Nothing in
the record indicates that these grand juries were "prob-
[ing] at will and without relation to existing need."
DeGregory v. Attorney General of New Hampshire, 383
U. S. 825, 829 (1966). Nor did the grand juries attempt
to invade protected First Amendment rights by
forcing wholesale disclosure of names and organizational
affiliations for a purpose that was not germane
to the determination of whether crime has been committed,
cf. NAACP v. Alabama, 357 U. S. 449 (1958);
NAACP v. Button, 371 U.S. 415 (1963); Bates v. Little
Rock, 361 U.S. 516 (1960), and the characteristic secrecy
of grand jury proceedings is a further protection against
the undue invasion of such rights. See Fed. Rule Crim.
Proc. 6 (e). The investigative power of the grand jury
is necessarily broad if its public responsibility is to be
adequately discharged. Costello v. United States, 350
U. S., a.t 364.
The requirements of those cases, see n. 18, supra, which
hold that a State's interest must be "compelling" or
"paramount" to justify even an indirect burden on First
Amendment rights, are also met here. As we have indicated,
the investigation of crime by the grand jury implements
a fundamental governmental role of securing the
safety of the person and property of the citizen, and it appears
to us that calling reporters to give testimony in
the manner and for the reasons that other citizens are
called "bears a reasonable relationship to the achievement
of the governmental purpose asserted as its justification."
Bates v. Little Rock, supra, at 525. If the
test is that the government "convincingly show a substantial
relation between the information sought and
a subject of overriding and compelling state interest,"
Gibson v. Florida Legi,slative Investigation Committee,
BRANZBURG v. HA YES 701
665 Opinion of the Court
372 U.S. 539, 546 (1963), it is quite apparent (1) that the
State has the necessary interest in extirpating the traffic
in illegal drugs, in forestalling assassination attempts on
the President, and in preventing the community from
being disrupted by violent disorders endangering both
persons and property; and (2) that, based on the stories
Branzburg and Caldwell wrote and Pappas' admitted
conduct, the grand jury called these reporters as they
would others-because it was likely that they could
supply information to help the government determine
whether illegal conduct had occurred and, if it had,
whether there was sufficient evidence to return an
indictment.
Similar considerations dispose of the reporters' claims
that preliminary to requiring their grand jury appearance,
the State must show that a crime has been committed
and that they possess relevant information not
available from other sources, for only the grand jury
itself can make this determination. The role of the grand
jury as an important instrument of effective law enforcement
necessarily includes an investigatory function
with respect to determining whether a crime has
been committed and who committed it. To this end
it must call witnesses, in the manner best suited to
perform its task. "\Vhen the grand jury is performing
its investigatory function into a general problem area ...
society's interest is best served by a thorough and extensive
investigation." Wood v. Georgia, 370 U. S. 375,
392 (1962). A grand jury investigation "is not fully
carried out until every available clue has been run down
and all witnesses examined in every proper way to find if
a crime has been committed." United States v. Stone,
429 F. 2d 138, 140 (CA2 1970). Such an investigation
may be triggered by tips, rumors, evidence proffered by
the prosecutor, or the personal knowledge of the grand
jurors. Costello v. United States, 350 U. S., at 362. It is
702 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
only after the grand jury has examined the evidence that
a determination of whether the proceeding will result in
an indictment can be made.
"It is impossible to conceive that in such ca.ses
the examination of witnesses must be stopped until
a basis is laid by an indictment formally preferred.
when the very object of the examination is to ascertain
who shall be indicted." Hale v. Henkel, 201
U. S. 43, 65 (1906).
See also Hendricks v. United States, 223 U.S. 178 ( 1912);
B"lair v. United States, 250 U. S., at 282--283. We see no
reason to hold that these reporters, any more than other
citizens, should be excused from furnishing information
that may help the grand jury in arriving at its initial
determinations.
The privilege claimed here is conditional, not absolute;
given the suggested preliminary showings and
compelling need, the reporter would be required to testify.
Presumably, such a rule would reduce the instances
in which reporters could be required to appear,
but predicting in advance when and in what circumstances
they could be oompelled to do so would be
difficult. Such a rule would also have implications for
the issuance of compulsory process to reporters at civil
and criminal trials and at legislative hearings. If newsmen's
confidential sources are as sensitive as they are
claimed to be, the prospect of being unmasked whenever
a judge determines the situation justifies it is hardly a
satisfactory solution to the problem.39 For them, it
would appear that only an absolute privilege would suffice.
39 ''Under the case-by-case method of developing rules, it will be
difficult for potential informants and reporters to predict whether
testimony will be compelled since the decision will turn on the judge's
ad hoe assessment in different fact settings of 'importance' or 'relevance'
in relation to the free press interest. A 'general' deterrent
BRANZBURG v. HAYES 703
665 Opinion of the Court
We are unwilling to embark the judiciary on a long
and difficult journey to such an uncertain destination.
The administration of a constitutional newsman's priveffect
is likely to result. This type of effect sterns from the vagueness
of the tests and from the uncertainty attending their application.
For example, if a reporter's information goes to the 'heart of the matter'
in Situation X, another reporter and informant who subsequently
are in Situation Y will not know if 'heart of the matter rule X' will
be extended to them, and deterrence will thereby result. Leaving
3ubstantial discretion with judges to delineate those 'situations' in
which rules of 'relevance' or 'importance' apply would therefore
seem to undermine significantly the effectiveness of a reporterinformer
privilege." Note, Reporters and Their Sources: The Constitutional
Right to a Confidential Relationship, 80 Yale L. J. 317,
341 (1970).
In re Grand Jury Witnesses, 322 F. Supp. 573 (ND Cal. 1970), illustrates
the impact of this ad hoe approach. Here, the grand jury
wa.s, as in Caldwell, inw,stigating the Black Panther Party, and was
"inquiring into matters which involve possible violations of Congressional
acts passed to protect the person of the President (18
U.S. C.§ 1751), to free him from threats (18 U.S. C. §871), to
protect our armed forces from unlawful interference (18 U. S. C.
§ 2387), conspiracy to commit the foregoing offenses (18 U. S. C.
§ 371), and related statutes prohibiting acts directed against the
security of the government." Id., at 577. The two witnesses, reporters
for a Black Panther Party newspaper, were subpoenaed and
given Fifth Amendment immunity against criminal prosecution, and
they claimed a First Amendment journalist's privilege. The District
Court rntered a protective order, allowing them to refuse to
divulge confidential information until the Government demonstrated
"a compelling and overriding national interest in requiring the testimony
of [the witnesses] which cannot be served by any alternative
means." Id., at 574. The Government claimed that it had information
that the witnesses had associated with persons who had
conspired to perform some of the criminal acts that the grand jury
was investigating. The court held the Government had met its
burden and ordered the witnesses to testify:
"The whole point of the investigation is to identify persons known
to the [witnesses] who may have engaged in activities violative of
the above indicated statutes, and also to ascertain the details of
their alleged nnlawful activities. All questions directed to such
704 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
ilege would present practical and conceptual difficulties
of a high order. Sooner or later, it would be necessary
to define those categories of newsmen who qualified
for the privilege, a questionable procedure in light of
the traditional doctrine that liberty of the press is the
right of the lonely pamphleteer who uses carbon paper
or a mimeograph just as much as of the large metropolitan
publisher who utilizes the latest photocomposition
methods. Cf. In re Grand Jury Witnesses, 322 F.
Supp. 573, 574 (ND Cal. 1970). Freedom of the press is
a "fundamental personal right" which "is not confined to
newspapers and periodicals. It necessarily embraces
pamphlets and leaflets. . . . The press in its historic
connotation comprehends every sort of publication which
affords a vehicle of information and opinion." Lovell v.
Griffin, 303 U. S. 444, 450, 452 (1938). See also Mills
objectives of the investigation are unquestionably relevant, and any
other evaluation thereof by the Court without knowledge of the
facts before the Grand Jury would clearly constitute 'undue interference
of the Court.'" Id., at 577.
Another illustration is provided by State v. Knops, 49 Wis. 2d 647,
183 N. W. 2d 93 (1971), in which a grand jury was investigating the
August 24, 1970, bombing of Sterling Hall on the University of Wisconsin
Madison campus. On August 26, 1970, an "underground"
newspaper, the Madison Kaleidoscope, printed a front-page story
entitled "The Bombers Tell Why and What Next-Exclusive to
Kaleidoscope." An editor of the Kaleidoscope was subpoenaed, appeared,
asserted his Fifth Amendment right against self-incrimination,
was given immunity, and then pleaded that he had a First Amendment
privilege against disclosing his confidential informants. The
Wisconsin Supreme Court rejected his claim and upheld his contempt
sentence: "[Appellant] faces five very narrow and specific questions,
all of which are founded on information which he himself has already
volunteered. The purpose of these questions is very clear. The
need for answers to them is 'overriding,' to say the least. The need
for these answers is nothing short of the public's need (and right) to
protect itself from physical attack by apprehending the perpetrators
of such attacks." 49 Wis. 2d, at 658, 183 N. W. 2d., at 98-99.
BRANZBURG v. HAYES 705
665 Opinion of the Court
v. Alabama, 384 U. S. 214, 219 (1966); Murdock v.
Pennsylvania, 319 U. S. 105, 111 (1943). The informative
function asserted by representatives of the organized
press in the present cases is also performed by lecturers,
political pollsters, novelists, academic researchers, and
dramatists. Almost any author may quite accurately
assert that he is contributing to the flow of information
to the public, that he relies on confidential sources
of information, and that these sources will be silenced
if he is forced to make disclosures before a grand jury.'0
In each instance where a reporter is subpoenaed to
testify, the courts would also be embroiled in preliminary
factual and legal determinations with respect to
whether the proper predicate had been laid for the reporter's
appearance: Is there probable cause to believe
a crime has been committed? Is it likely that the
reporter has useful information gained in confidence?
Could the grand jury obtain the information elsewhere?
Is the official interest sufficient to outweigh the claimed
privilege?
Thus, in the end, by considering whether enforcement
of a particular law served a "compelling" governmental
interest, the courts would be inextricably involved in
• 0 Such a privilege might be claimed by groups that set up newspapers
in order to engage in criminal activity and to therefore be insulated
from grand jury inquiry, regardless of Fifth Amendment
grants of immunity. It might appear that such "sham" newspapers
would be easily distinguishable, yet the First Amendment ordinarily
prohibits courts from inquiring into the content of expression, except
in cases of obscenity or libel, and protects speech and publications regardless
of their motivation, orthodoxy, truthfulness, timeliness, or
taste. New York Times Co. v. Sullivan, 376 U. S., at 269-270;
Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 689 (1959);
Winters v. New York, 333 U.S. 507,510 (1948); Thomas v. Collins,
323 U. S., at 537. By affording a privilege to some organs of communication
but not to others, courts would inevitably be discriminating
on the basis of content.
706 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
distinguishing between the value of enforcing different
criminal laws. By requiring testimony from a reporter
in investigations involving some crimes but not in others,
they would be making a value judgment that a legislature
had declined to make, since in each case the
criminal law involved would represent a considered legislative
judgment, not constitutionally suspect, of what
conduct is liable to criminal prosecution. The task of
judges, like other officials outside the legislative branch,
is not to make the law but to uphold it in accordance
with their oaths.
At the federal level, Congress has freedom to determine
whether a statutory newsman's privilege is necessary and
desirable and to fashion standards and rules as narrow
or broad as deemed necessary to deal with the evil discerned
and, equally important, to refashion those rules as
experience from time to time may dictate. There is
also merit in leaving state legislatures free, within First
Amendment limits, to fashion their own standards in
light of the conditions and problems with respect to
the relations between law enforcement officials and press
in their own areas. It goes without saying, of course,
that we are powerless to bar state courts from responding
in their own way and construing their own constitutions
so as to recognize a newsman's privilege, either
qualified or absolute.
In addition, there is much force in the pragmatic
view that the press has at its disposal powerful mechanisms
of communication and is far from helpless to
protect itself from harassment or substantial harm.
Furthermore, if what the newsmen urged in these cases is
true-that law enforcement cannot hope to gain and may
suffer from subpoenaing newsmen before grand juriesprosecutors
will be loath to risk so much for so little.
Thus, at the federal level the Attorney General has already
fashioned a set of rules for federal officials in conBRANZBURG
v. HAYES 707
665 Opinion of the Court
nection with subpoenaing members of the press to testify
before grand juries or at criminal trials.41 These rules
are a major step in the direction the reporters herein
desire to move. They may prove wholly sufficient to
resolve the bulk of disagreements and controversies between
press and federal officials.
Finally, as we have earlier indicated, news gathering
is not without its First Amendment protections, and
grand jury investigations if instituted or conducted other
than in good faith, would pose wholly different issues
for resolution under the First Amendment.42 Official
harassment of the press undertaken not for purposes
of law enforcement but to disrupt a reporter's relation-
41 The Guidelines for Subpoems to the News Media were first
announced in a speech by the Attorney General on August 10, 1970,
and then were expressed in Department of Justice Memo. No. 692
(Sept. 2, 1970), which was sent to all United States Attorneys by
the Assistant Attorney General in charge of the Criminal Division.
The Guidelines state that: "The Department of Justice recognizes
that compulsory process in some circumstances may have a limiting
effect on the exercise of First Amendment rights. In determining
whether to request issuance of a subpoena to the press, the approach
in every case must be to weigh that limiting effect against the public
interest to be served in the fair administration of justice" and t.hat:
"The Department of Justict does not consider the press 'an investigative
arm of the government.' Therefore, all reasonable attempts
should be made to obtain information from non-press sourc:;s before
there is a.ny consideration of subpoenaing the press.'' The Guidelines
provide for negotiations with the press and require the express authorization
of the Attorney General for such subpoenas. The principles
to be applied in authorizing such subpoenas are stated to be whether
there is "sufficient reason to believe that the information sought
[from the journalist] is essential to a successful investigation," and
whether the Government has unsuccessfully attempted to obtain the
information from alternative non-press sources. The Guidelines provide,
however, that in "emergencies and other unusual situations,"
subpoenas may be issued which do not exactly conform to the
Guidelines.
4 "Cf. Younger v. Harris, 401 U.S. 37, 49, 53- 54 (1971) .
708 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
ship with his news sources would have no justification.
Grand juries are subject to judicial control and subpoenas
to motions to quash. We do not expect courts will forget
that grand juries must operate within the limits of
the First Amendment as well as the Fifth.
III
We turn, therefore, to the disposition of the cases before
us. From what we have said, it necessarily follows
that the decision in United States v. Caldwell, No. 70-57,
must be reversed. If there is no First Amendment privilege
to refuse to answer the relevant and material questions
asked during a good-faith grand jury investigation,
then it is a fortiori true that there is no privilege to
refuse to appear before such a grand jury until the Government
demonstrates some "compelling need" for a
newsman's testimony. Other issues were urged upon us,
but since they were not passed upon by the Court of
Appeals, we decline to address them in the first instance.
The decisions in No. 70-85, Branzburg v. Hayes and
Branzburg v. Meigs, must be affirmed. Here, petitioner
refused to answer questions that directly related to
criminal conduct that he had observed and written about.
The Kentucky Court of Aμpeals noted that marihuana is
defined as a narcotic drug by statute, Ky. Rev. Stat.
§ 218.010 (14) (1962), and that unlicensed possession or
compounding of it is a felony punishable by both fine
and imprisonment. Ky. Rev. Stat. § 218.210 (1962).
It held that petitioner "saw the commission of the statutory
felonies of unlawful possession of marijuana and
the unlawful conversion of it into hashish," in Branzburg
v. Pound, 461 S. W. 2d, at 346. Petitioner may be presumed
to have observed similar violations of the state
narcotics laws during the research he did for the story
that forms the basis of the subpoena in Branzburg v.
Meigs. In both cases, if what petitioner wrote was true,
BRANZBURG v. HAYES 709
665 POWELL, J., concurring
he had direct information to provide the grand jury
concerning the commission of serious crimes.
The only question presented at the present time in
In re Pappas, No. 70-94, is whether petitioner Pappas
must appear before the grand jury to testify pursuant
to subpoena. The Massachusetts Supreme Judicial Court
characterized the record in this case as "meager," and
it is not clear what petitioner will be asked by the grand
jury. It is not even clear that he will be asked to divulge
information received in confidence. We affirm the decision
of the Massachusetts Supreme Judicial Court and
hold that petitioner must appear before the grand jury
to answer the questions put to him, subject, of course,
to the supervision of the presiding judge as to "the propriety,
purposes, and scope of the grand jury inquiry
and the pertinence of the probable testimony." 358
Mass., at 614, 266 N. E. 2d, at 303-304.
So ordered.
MR. JUSTICE PowELL, concurring.
I add this brief statement to emphasize what seems
to me to be the limited nature of the Court's holding.
The Court does not hold that newsmen, subpoenaed to
testify before a grand jury, are without constitutional
rights with respect to the gathering of news or in safeguarding
their sources. Certainly, we do not hold, as
suggested in MR. JUSTICE STEWART'S dissenting opinion,
that state and federal authorities are free to "annex" the
news media as "an investigative arm of government."
The solicitude repeatedly shown by this Court for First
Amendment freedoms should be sufficient assurance
against any such effort, even if one seriously believed that
the media-properly free and untrammeled in the fullest
sense of these terms-were not able to protect themselves.
As indicated in the concluding portion of the opinion,
the C<mrt states that no harassment of newsmen will
710 OCTOBER TERM, 1971
POWELL, J., concurring 408 u. s.
be tolerated. If a newsman believes that the grand jury
investigation is not being conducted in good faith he
is not without remedy. Indeed, if the newsman is called
upon to give information bearing only a remote and
tenuous relationship to the subject of the investigation,
or if he has some other reason to believe that his testimony
implicates confidential source relationships without
a legitimate need of law enforcement, he will have
access to the court on a motion to quash and an appropriate
protective order may be entered. The asserted
claim to privilege should be judged on its facts by the
striking of a proper balance between freedom of the
press and the obligation of all citizens to give relevant
testimony with respect to criminal conduct. The balance
of these vital constitutional and societal interests
on a case-by-case basis accords with the tried and traditional
way of adjudicating such questions.*
In short, the courts will be available to newsmen under
circumstances where legitimate First Amendment interests
require protection.
*It is to be remembered that Caldwell asserts a constitutional
privilege not even to appear before the grand jury unless a court
decides that the Government has made a showing that meets the
three preconditions specified in the dissenting opinion of MR.
JusTICE STEWART. To be sure, this would require a "balancing"
of interests by the court, but under circumstances and constraints
significantly different from the balancing that will be appropriate
under the court's decision. The newsman witness, like all other
witnesses, will have to appear; he will not be in a position to litigate
at the threshold the State's very authority to subpoena him.
Moreover, absent the constitutional preconditions that Caldwell
and that dissenting opinion would impose as heavy burdens of proof
to be carried by the State, the court-when called upon to protect
a newsman from improper or prejudicial questioning-would be
free to baiance the competing interests on their merits in the particular
case. The new constitutional rule endorsed by that dissenting
opinion would, as a pra.ctical matter, defeat such a fair balancing
and the essential societal interest in the detection and proserution
of crime v,ould be heavily subordinated.
BRANZBURG v. HA YES 711
665 DouGLAS, ,T., dissenting
MR. JusTICE DouGLAS, dissenting in No. 70-57, United
States v. Caldwell.
Caldwell, a black, is a. reporter for the New York
Times and was assigned to San Francisco with the hope
that he could report on the activities and attitudes of
the Black Panther Party. Caldwell in time gained the
complete confidence of its members and wrote in-depth
articles about them.
He was subpoenaed to appear and testify before a federal
grand jury and to bring with him notes and tapes
covering interviews with its members. A hearing on a
motion to quash was held. The District Court ruled that
while Caldwell had to appear before the grand jury, he
did not have to reveal confidential communications unless
the court was satisfied that there was a "compelling and
overriding national interest." See 311 F. Supp. 358, 362.
Caldwell filed a notice of appeal and the Court of Appeals
dismissed the appeal without opinion.
Shortly thereafter a new grand jury was impaneled
and it issued a new subpoena for Caldwell to testify. On
a motion to quash, the District Court issued an order
substantially identical to its earlier one.
Caldwell refused to appear and was held in contempt.
On appeal, the Court of Appeals vacated the judgment
of contempt. It said that the revealing of confidential
sources of information jeopardized a First Amendment
freedom and that Caldwell did not have to appear before
the grand jury absent a showing that there was a "compelling
and overriding national interest" in pursuing such
an interrogation.
The District Court had found that Caldwell's knowledge
of the activities of the Black Panthers "derived
in substantial part" from information obtained "within
the scope of a relationship of trust and confidence." Id.,
at 361. It also found that confidential relationships of
this sort are commonly developed and maintained by
712 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 U.S.
professional journalists, and are indispensable to their
work of gathering, analyzing, and publishing the news.
The District Court further had found that compelled
disclosure of information received by a journalist within
the scope of such confidential relationships jeopardized
those relationships and thereby impaired the journalist's
ability to gather, analyze, and publish the news.
The District Court, finally, had found that, without a
protective order delimiting the scope of interrogation of
Earl Caldwell by the grand jury, his appearance and
examination before the jury would severely impair
and damage his confidential relationships with members
of the Black Panther Party and other militants, and
thereby severely impair and damage his ability to gather,
analyze, and publish news concerning them; and that
it would also damage and impair the abilities of all reporters
to gather, analyze, and publish news concerning
them.
The Court of Appeals agreed with the findings of the
District Court but held that Caldwell did not have to
appear at all before the grand jury absent a "compelling
need" shown by the Government. 434 F. 2d 1081.
It is my view that there is no "compelling need" that
can be shown which qualifies the reporter's immunity
from appearing or testifying before a grand jury, unless
the reporter himself is implicated in a crime. His immunity
in my view is therefore quite complete, for, absent his
involvement in a crime, the First Amendment protects
him against an appearance before a grand jury and if he is
involved in a crime, the Fifth Amendment stands as a
barrier. Since in my view there is no area of inquiry not
protected by a privilege, the reporter need not appear for
the futile purpose of invoking one to each question. And,
since in my view a newsman has an absolute right not
to appear before a grand jury, it follows for me that a
journalist who voluntarily appears before that body may
invoke his First Amendment privilege to specific quesBRANZBURG
v. HAYES 713
665 DouGLAS, J., dissenting
tions. The basic issue is the extent to which the First
Amendment ( which is applicable to investigating committees,
Watkins v. United States, 354 U.S. 178; NAACP
v. Alabama, 357 U. S. 449, 463; Gibson v. Florida Legislative
Investigation Committee, 372 U. S. 539; Baird v.
State Bar of Arizona, 401 U.S. 1, 6-7; In re Stolar, 401
U. S. 23) must yield to the Government's asserted need
to know a reporter's unprinted information.
The starting point for decision pretty well marks the
range within which the end result lies. The New York
Times, whose reporting functions are at issue here, takes
the amazing position that First Amendment rights are
to be balanced against other needs or conveniences of
government.1 My belief is that all of the "balancing"
was done by those who wrote the Bill of Rights. By
casting the First Amendment in absolute terms, they
repudiated the timid, watered-down, emasculated versions
of the First Amendment which both the Government
and the New York Times advance in the case.
My view is close to that of the late Alexander
Meiklejohn: 2
"For the understanding of these principles it is
essential to keep clear the crucial difference between
'the rights' of the governed and 'the powers' of the
governors. And at this point, the title 'Bill of
Rights' is lamentably inaccurate as a designation
1 "The three minimal tests we contend must be met before testimony
divulging confidences may be compelled from a reporter are
these: 1. The government must clearly show that there is probable
cause to believe that the reporter possesses information which is
specifically relevant to a specific probable violation of law. 2. The
government must clearly show that the information it seeks cannot
be obtained by alternative means, which is to say, from sources
other than the reporter. 3. The government must clearly demonstrate
a compelling and overriding interest in the information."
Brief for New York Times as Amicus Curiae 29.
2 The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245,
254.
714 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408U.S.
of the first ten amendments. They are not a 'Bill
of Rights' but a 'Bill of Powers and Rights.' The
Second through the Ninth Amendments limit the
powers of the subordinate agencies in order that due
regard shall be paid to the private 'rights of the
governed.' The First and Tenth Amendments protect
the governing 'powers' of the people from
abridgment by the agencies which are established
as their servants. In the field of our 'rights,' each
one of us can claim 'due process of law.' In the
field of our governing 'powers,' the notion of 'due
process' is irrelevant.''
He also believed that "[s]elf-government can exist only
insofar as the voters acquire the intelligence, integrity,
sensitivity, and generous devotion to the general welfare
that, in theory, casting a ballot is assumed to express," 3
and that "[p] ublic discussions of public issues, together
with the spreading of information and opinion bearing
on those issues, must have a freedom unabridged by our
agents. Though they govern us, we, in a deeper sense,
govern them. Over our governing, they have no power.
Over their governing we have sovereign power."'
Two principles which follow from this understanding
of the First Amendment are at stake here. One is that
the people, the ultimate governors, must have absolute
freedom of, and therefore privacy of, their individual
opinions and beliefs regardless of how suspect or strange
they may appear to others. Ancillary to that principle
is the conclusion that an individual must also have absolute
privacy over whatever information he may generate
in the course of testing his opinions and beliefs. In this
regard, Caldwell's status as a reporter is less relevant
than is his status as a student who affirmatively pursued
empirical research to enlarge his own intellectual view-
3 ld., at 255.
4 ld., at 257.
BRANZBURG v. HAYES 715
665 DouGLAS, J., dissenting
point. The second principle is that effective self-government
cannot succeed unless the people are immersed in
a steady, robust, unimpeded, and uncensored flow of opinion
and reporting which are continuously subjected to
critique, rebuttal, and re-examination. In this respect,
Caldwell's status as a news gatherer and an integral part
of that process becomes critical.
I
Government has many interests that compete with
the First Amendment. Congressional investigations determine
how existing laws actually operate or whether
new laws are needed. ·while congressional committees
have broad powers, they are subject to the restraints of
the First Amendment. As we said in Watkins v. United
States, 354 U. S., at 197: "Clearly, an investigation is
subject to the command that the Congress shall make no
law abridging freedom of speech or press or assembly.
While it is true that there is no statute to be reviewed,
and that an investigation is not a law, nevertheless an
investigation is part of lawmaking. It is justified solely
as an adjunct to the legislative process. The First
Amendment may be invoked against infringement of the
protected freedoms by law or by lawmaking."
Hence, matters of belief, ideology, religious practices,
social philosophy, and the like are beyond the pale and
of no rightful concern of government, unless the belief
or the speech, or other expresrion has been translated
into action. West Virginia State Board of Education v.
Barnette, 319 U. S. 624, 642; Baird v. State Bar of
Arizona, 401 U. S., at 6-7; In re Stolar, 401 U. S. 23.
Also at stake here is Caldwell's privacy of association.
We have held that "[i]nviolability of privacy in group
association may in many circumstances be indispensable
to preservation of freedom of association, particularly
where a group espouses dissi<ient beliefs." NAACP v.
716 OCTOBER TERM, 1971
Douous, J., dissenting 408 U.S.
Alabama, 357 U. S., at 462; NAACP v. Button, 371 u. s. 415.
As I said in Gibson v. Florida Leg-islative Investigation
Committee, 372 U. S., at 565: "the associational rights
protected by the First Amendment ... cover the entire
spectrum in political ideology as well as in art, in journalism,
in teaching, and in religion. . . . [G] overnment
is ... precluded from probing the intimacies of spiritual
and intellectual relationships in the myriad of such societies
and groups that exist in this country, regardless of
the leg-islative purpose sought to be served. . . . If that
is not true, I see no barrier to investigation of newspapers,
churches, political parties, clubs, societies, unions, and
any other association for their political, economic, social,
philosophical, or religious views." (Concurring opinion.)
(Emphasis added.)
The Court has not always been consistent in its protection
of these First Amendment rights and has sometimes
allowed a government interest to override the absolutes
of the First Amendment. For example, under the
banner of the "clear and present danger" test,5 and later
under the influence of the "balancing" formula,6 the
5 E. g., Schenck v. United States, 249 U. S. 47 (wartime antidraft
"leafleting"); Debs v. United States, 249 U. S. 211 (wartime
anti-draft speech); Abrams v. United States, 250 U.S. 616 (wartime
leafleting calling for general strike) ; Feiner v. New York, 340
U. S. 315 (arrest of radical speaker without attempt to protect
him from hostile audience); Denni.<! v. United States, 341 U. S.
494 (reformulation of test as "not improbable" rule to sustain
conviction of knowing advocacy of overthrow); Scales v. United
States, 367 U. S. 203 (knowing membership in group which espouses
forbidden advocacy is punishable). For a more detailed account
of the infamy of the "clear and present danger" test see my concurring
opinion in Brandenburg v. Ohio, 395 U. S. 444, 450.
6 E. g., Adler v. Board of Education, 342 U. S. 485 (protection
of schools from "pollution" outweighs public teachers' freedom to
advocate violent overthrow); Uphaus v. Wyman, 360 U. S. 72,
79, 81 (preserving security of New Hampshire from subversives
BRANZBURG v. HA YES 717
G65 DouGLAS, J., dissenting
Court has permitted men to be penalized not for any
harmful conduct but solely for holding unpopular beliefs.
In recent years we have said over and over again that
where First Amendment rights are concerned any regulation
"narrowly drawn," 1 must be "compelling" and not
outweighs privacy of list of participants in suspect summer camp) ;
Barenblatt v. United States, 360 U. S. 109 (legislative inquiry more
important than protecting HUAC witness' refusal to answer whether
a third person had been a Communist); Wilkinson v. ['nited States,
365 U. S. 399 (legislative inquiry more important than protecting
HUAC witness' refusal to state whether he was currently a member
of the Communist Party); Braden v. United States, 365 U. S. 431,
435 (legislative inquiry more important than protecting HU AC
witness' refusal to state whether he had once been a member of
the Communist Party); Konigsberg v. State Bar, 366 U. S. 36
(regulating membership of bar outweighs interest of applicants in
refusing to answer question concerning Communist affiliations);
In re Anastaplo, 366 U. S. 82 (regulating membership of bar outweighs
protection of applicant's belief in Declaration of Independence
that citizens should revolt against an oppressive government);
Communist Party v. Subversive Activities Control Board, 367 U. S.
1 (national security outweighs privacy of association of leaders of
suspect groups); Law Students Research Council v. Wadmond, 401
U. S. 154 (regulating membership of bar outweighs privacy of
applicants' views on the soundness of the Constitution).
7 Thus, we have held "overbroad" measures which unduly restrict-
ed the time, place, and manner of expression. Schneider v.
State, 308 U. S. 147, 161 (anti-leafleting law); Thornhill v. Alabama,
310 U. S. 88, 102 (anti-boycott statute); Cantwell v. Connecticut,
310 U. S. 296 (breach-of-peace measure); Cox v. Louisiana,
379 U. S. 536 (breach-of-peace measure); Edwards v. South Carolina,
372 U. S. 229 (breach-of-peace statute); Cohen v. California,
403 U. S. 15, 22 (breach-of-peace statute); Gooding v. Wilson, 405
U. S. 518 (breach-of-peace statute). But insofar as penalizing the
content of thought and opinion is concerned, the Court has not
in recent Terms permitted any interest to override the absolute
privacy of one's philosophy. To be sure, opinions have often adverted
to the absence of a compelling justification for attempted
intrusions into philosophical or associational privacy. E. g., Bates
v. Little Rock, .361 U. S. 516, 523 (disclosure of NAACP membership
lists to city officials); Gibson v. Florida Legislative Investiga718
OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 u. s.
merely "rational" as is the case where other activities are
concerned.8 But the "compelling" interest in regulation
neither includes paring down or diluting the right, nor
tion Committee, 372 U. S. 539, 546 (disclosure of NAACP membership
list to state legislature); DeGregory v. Attorney General of
New Hampshire, 383 U. S. 825, 829 (witness' refusal to state
whether he had been a member of the Communist Party three
years earlier); Baird v. State Bar of Arizona, 401 U. S. 1, 6-7
(refusal of bar applicant to state whether she had been a member
of the Communist Party); In re Stolar, 401 U. S. 23 (refusal of
bar applicant to state whether he was "loyal" to the Government);
see also Street v. New York, 394 U. S. 576 (expression of disgust
for flag). Yet, while the rhetoric of these opinions did not expressly
embrace an absolute privilege for the privacy of opinions and
philosophy, the trend of those results was not inconsistent with
and in their totality appeared to be approaching such a doctrine.
Moreover, in another group of opinions invalidating for overbreadth
intrusions into the realm of belief and association, there
was no specification of whether a danger test, a balancing process,
an absolute doctrine, or a compelling justification inquiry had
been used to detect invalid applications comprehended by the
challenged measures. E. g., Wieman v. Updegraff, 344 U. S. 183
(loyalty test which condemned mere unlrnowing membership in
a suspect group); Shelton v. Tucker, 364 U. S. 479 (requirement
that public teachers disclose all affiliations); Louisiana ex rel. Gremillion
v. NAACP, 366 U.S. 293, 296 (disclosure of NAACP membership
lists); Whitehill v. Elkins, 389 U. S. 54, 59 (nonactive membership
in a suspect group a predir,ate for refusing employment as a
public teacher); United States v. Robel, 389 U. S. 258 (mere membership
in Communist Party a sole ground for exclusion from employment
in defense facility). Regrettably, the vitality of the overdue
trend toward a complete privilege in this area has been drawn into
question by quite recent decisions of the Court, Law Students Research
Council v. Wadmond, 401 U. S. 154, holding that bar applicants
may be turned away for refusing to disclose their opinions on
the soundness of the Constitution; Cole v. Richardson, 405 U. S. 676,
sustaining an oath required of public employees that they will
"oppose" a violent overthrow; and, of course, by today's decision.
8 Where no more than economic interests were affected this
Court has upheld legislation only upon a showing that it was
"rationally connected" to some permissible state objective. E. g.,
BRANZBURG v. HAYES 719
665 Douaus, J., dissenting
embraces penalizing one isolely for his intellectual viewpoint;
it concerns the State's interest, for example, in
regulating the time and place or perhaps manner of exercising
First Amendment rights. Thus, one has an undoubted
right to read and proclaim the First Amendment
in the classroom or in a park. But he would not have
the right to blare it forth from a sound truck rolling
through the village or city at 2 a. m. The distinction
drawn in Cantwell v. Connecticut, 310 U. S. 296, 303-
304, should still stand: "[T]he Amendment embraces two
concepts,-freedom to believe and freedom to act. The
first is absolute but, in the nature of things, the second
cannot be." 9
Under these precedents there is no doubt that Caldwell
could not be brought before the grand jury for the sole
purpose of exposing his political beliefs. Yet today the
Court effectively permits that result under the guise of
allowing an attempt to elicit from him "factual information."
To be sure, the inquiry will be couched only in
terms of extracting Caldwell's recollection of what was
said to him during the interviews, but the fact remains
that his questions to the Panthers and therefore the
respective answers were guided by Caldwell's own preconceptions
and views about the Black Panthers. His
United States v. Carolene Products Co., 304 U. S. 144, 152;
Goesaert v. Cleary, 335 U. S. 464; Williamson v. Lee Optical Co.,
348 U. S. 483; McGowan v. Maryland, 366 U. S. 420; McDonald
v. Board of Election Comm'rs, 394 U. S. 802; United States v.
Maryland Savings-Share Ins. Corp., 400 U. S. 4; Richardson v.
Belcher, 404 U.S. 78; Schilb v. Kuebel, 404 U.S. 357.
9 The majority cites several cases which held that certain burdens
on the press were permissible despite incidental burdens on its
news-gathering ability. For example, see Sheppard v. Maxwell, 384
U. S. 333, 358. Even assuming that those cases were rightly decided,
the fact remains that in none of them was the Government attempting
to extract personal belief from a witness and the privacy of a citizen's
personal intellectual viewpoint was not implicated.
720 OCTOBER TERM, 1971
DouGLAs, J., dissenting 408 u. s.
entire experience was shaped by his intellectual viewpoint.
Unlike the random bystander, those who affirmatively
set out to test a hypothesis, as here, have no
tidy means of segregating subjective opinion from objective
facts.
Sooner or later, any test which provides less than
blanket protection to beliefs and associations will be
twisted and relaxed so as to provide virtually no protection
at all. As Justice Holmes noted in Abrams v.
United States, 250 U.S. 616, 624, such was the fate of the
"clear and present danger" test which he had coined in
Schenck v. United States, 249 U. S. 47. Eventually,
that formula was so watered down that the danger had
to be neither clear nor present but merely "not improbable."
Dennis v. United States, 341 U. S. 494, 510.
See my concurring opinion in Brandenburg v. Ohio, 395
U. S. 444, 450. A compelling-interest test may prove
as pliable as did the clear-and-present-danger test.
Perceptions of the worth of state objectives will change
with the composition of the Court and with the intensity
of the politics of the times. For example, in Uphaus v.
Wyman, 360 U. S. 72, sustaining an attempt to compel
a witness to divulge the names of participants in a
summer political camp, JuSTICE BRENNAN dissented on
the ground that "it is patent that there is really no
subordinating interest . . . demonstrated on the part of
the State." Id., at 106. The majority, however, found
that "the governmental interest in self-preservation is
sufficiently compelling to subordinate the interest in associational
privacy .... " Id., at 81. That is to enter
the world of "make believe," for New Hampshire, the
State involved m Uphaus, was never in fear of being
overthrown.
II
Today's decision will impede the wide-open and robust
dissemination of ideas and counterthought which
BRANZBURG v. HAYES 721
665 DouGLAS, J., dissenting
a free press both fosters and protects and which is essential
to the success of intelligent self-government.
Forcing a reporter before a grand jury will have two
retarding effects upon the ear and the pen of the press.
Fear of exposure will cause dissidents to communicate
less openly to trusted reporters. And, fear of accountability
will cause editors and critics to write with more
restrained pens.
I see no way of making mandatory the disclosure of a
reporter's confidential source of the information on which
he bases his news story.
The press has a pref erred position in our constitutional
scheme, not to enable it to make money, not to set newsmen
apart as a favored class, but to bring fulfillment to
the public's right to know. The right to know is crucial
to the governing powers of the people, to paraphrase
Alexander Meiklejohn. Knowledge is essential to informed
decisions.
As Mr. Justice Black said in New York Times Co. v.
United States, 403 U. S. 713, 717 (concurring opinion),
"The press was to serve the governed, not the governors.
. . . The press was protected so that it could
bare the secrets of government and inform the people."
Government has an interest in law and order; and history
shows that the trend of rulers-the bureaucracy and
the police---is to suppress the radical and his ideas and
to arrest him rather than the hostile audience. See
Feiner v. New York, 340 U.S. 315. Yet, as held in Terminiello
v. Chicago, 337 U. S. 1, 4, one "function of free
speech under our system of government is to invite
dispute." We went on to say, "It may indeed best serve
its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or
even stirs people to anger. Speech is of ten provocative
and challenging. It may strike at prejudices and pre722
OCTOBER TERM, 1971
DouGLAS, J., dissenting 408U.S.
conceptions and have profound unsettling effects as it
presses for acceptance of an idea."
The people who govern are of ten far removed from the
cabals that threaten the regime; the people are often
remote from the sources of truth even though they live
in the city where the forces that would undermine society
operate. The function of the press is to explore and
investigate events, inform the people what is going on,
and to expose the harmful as well as the good influences
at work. There is no higher function performed under
our constitutional regime. Its performance means that
the press is often engaged in projects that bring anxiety
or even fear to the bureaucracies, departments, or officials
of government. The whole weight of government
is therefore often brought to bear against a paper or a
reporter.
A reporter is no better than his source of information.
Unless he has a privilege to withhold the identity
of his source, he will be the victim of governmental
intrigue or aggression. If he can be summoned to
testify in secret before a grand jury, his sources will
dry up and the attempted exposure, the effort to enlighten
the public, will be ended. If what the Court sanctions
today becomes settled law, then the reporter's main function
in American society will be to pass on to the public
the press releases which the various departments of
government issue.
It is no answer to reply that the risk that a newsman
will divulge one's secrets to the grand jury is no
greater than the threat that he will in any event inform
to the police. Even the most trustworthy reporter may
not be able to withstand relentless badgering before a
grand jury.10
10 "The secrecy of the [grand jury's] proceedings and the possibility
of a jail sentence for contempt so intimidate the witness that
he may be led into answering questions which pry into his personal
BRANZBURG v. HAYES 723
665 DouGLAS, J., dissenting
The record in this case is replete with weighty affidavits
from responsible newsmen, telling how important is
the sanctity of their sources of information.n When we
deny newsmen that protection, we deprive the people of
the information needed to run the affairs of the Nation
in an intelligent way.
Madison said :
"A popular Government, without popular information,
or the means of acquiring it, is but a Prologue
to a Farce or a Tragedy; or, perhaps both.
Knowledge will forever govern ignorance: And a
people who mean to be their own Governors, must
arm themselves with the power which knowledge
gives." (To W. T. Barry, Aug. 4, 1822.) 9 Writings
of James Madison 103 (G. Hunt ed. 1910).
life and associations and which, in the bargain, are frequently immaterial
and vague. Alone and faced by either hostile or apathetic
grand juries, the witness is frequently undone by his experience.
Life in a relatively open society makes him especially vulnerable to
a secret appearance before a body that is considering criminal charges.
And the very body toward which he could once look for protection
has become a weapon of the prosecution. When he seeks protective
guidance from his lawyer he learns that the judicial broadening
of due process which has occurred in the past two decades has
largely ignored grand jury matters, precisely because it was assumed
that the grand jury still functioned as a guardian of the rights of
potential defendants." Donner & Cerruti, The Grand Jury Network:
How the Nixon Administration Has Secretly Perverted A
Traditional Safeguard of Individual Rights, 214 The Nation 5, 6
(1972).
11 It is said that "we remain unclear how often and to what extent
informers are actually deterred from furnishing information when
newsmen are forced to testify before a grand jury." Ante, at 693.
But the majority need look no further than its holdings that prosecutors
need not disclose informers' names because disclosure would
(a) terminate the usefulness of an exposed informant inasmuch as
others would no longer confide in him, and (b) it would generally
inhibit persons from becoming confidential informers. McCray v.
lllinous, 386 U. S. 300; Scher v. United States, 305 U.S. 251; cf.
Roviaro v. United States, 353 U. S. 53.
724 OCTOBER TERM, 1971
DouGLAS, J., dissenting 408 U.S.
Today's decision is more than a clog upon news gathering.
It is a signal to publishers and editors that they
should exercise caution in how they use whatever information
they can obtain. Without immunity they may
be summoned to account for their criticism. Entrenched
officers have been quick to crash their powers down upon
unfriendly commentators.12 E . g., New York Times Co.
v. Sullivan, 376 U. S. 254; Garrison v. Louisiana, 379
U. S. 64; Pickering v. Board of Education, 391 U. S.
563; Gravel v. United States, ante, p. 606.
The intrusion of government into this domain is symptomatic
of the disease of this society. As the years pass
the power of government becomes more and more pervasive.
It is a power to suffocate both people and causes.
Those in power, whatever their politics, want only to per-
12 For a snmm,iry of early reprisals against the press, such as the
John Peter Zenger trial, the Alien and Sedition Acts prosecutions, and
Civil War suppression of newspapers, see Press Freedoms Under
Pressure, Report of the Twentieth Century Fund Task Force on the
Government and the Press 3-5 (1972). We have not outlived the
tendency of officials to retaliate against critics. For recent examples
see J. Wiggins, Freedom or Secrecy 87 (1956) ("New Mexico, in
1954, furnished a striking example of government reprisal against ...
a teacher in the state reform school [who] wrote a letter to the New
Mexican, confirming stories it had printed about mistreatment of
inmates by guards. . . . [Two days later he] was notified of his
dismissal."); Note, The Right of Government Employees to Furnish
Information to Congress: Statutory and Con~titutional Aspects,
57 Va. L. Rev. 885-886 (1971) (dismissal of an Air Force
employee who testified before a Senate committee with respect to
C-5A cargo plane cost overruns and firing of an FBI agent who
wrote Senators complaining of the Bureau's personnel practices);
N. Y. Times, Nov. 8, 1967, p. 1, col. 2; id., Nov. 9, 1967, p. 2, col. 4
(Selective Service directive to local draft boards requiring conscription
of those who protested war); N. Y. Times, Nov. 11, 1971, p. 95,
col. 4; id., Nov. 12, 1971, p. 13, col. 1; id., Nov. 14, 1971, pt. 4, p.
13, col. 1 (FBI investigation of a television commentator who
c-riticized administration policies); id., Nov. 14, 1971, p. 75, col. 3
( denial of White House press pass to underground journalist).
BRANZBURG v. HAYES 725
665 STEWART, J., dissenting
petuate it. Now that the fences of the law and the
tradition that has protected the press are broken down,
the people are the victims. The First Amendment, as I
read it, was designed precisely to prevent that tragedy.
I would also reverse the judgments in No. 70---85,
Branzburg v. Hayes, and No. 70---94, In re Pappa13, for
the reasons stated in the above dissent in No. 70---57,
United States v. Caldwell.
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN
and MR. JUSTICE MARSHALL join, dissenting.
The Court's crabbed view of the First Amendment
reflects a disturbing insensitivity to the critical role
of an independent press in our society. The question
whether a reporter has a constitutional right to a confidential
relationship with his source is of first impression
here, but the principles that should guide our decision
are as basic as any to be found in the Constitution.
While MR. JusTICE PowELL's enigmatic concurring opinion
gives some hope of a mrre flexible view in the future,
the Court in these cases holds that a newsman has no First
.Amendment, right to protect his sources when called before
a grand jury. The Court thus invites state and
federal authorities to undermine the historic independence
of the press by attempting to annex the journalistic profession
as an investigative arm of government. Not
only will this decision impair performance of the press'
constitutionally protected functions, but it will, I am
convinced, in the long run harm rather than help the
administration of justice.
I respectfully dissent.
I
The reporter's constitutional right to a confidential
relationship with his source stems from the broad societal
interest in a full and free flow of information to the
public. It is this basic concern that underlies the Con726
OCTOBER TERM. 1971
STEWART, J., dissenting 408 U.S.
stitution's protection of a free press, Grosjean v. American
Press Co., 297 U.S. 233,250; New York Times Co. v.
Sullivan, 376 U. S. 254, 269,1 because the guarantee is
"not for the benefit of the press so much as for the benefit
of all of us." Time, Inc. v. Hill, 385 U. S. 374, 389.2
Enlightened choice by an informed citizenry is the
basic ideal upon which an open society is premised,3
and a free press is thus indispensable to a free society.
Not only does the press enhance personal self-fulfillment
1 We have often described the process of informing the public as
the core purpose of the constitutional guarantee of free speech and
a free press. See, e. g., Stromberg v. California, 283 U.S. 359, 369;
De Jonge v. Oregon, 299 U. S. 353, 365; Smith v. California, 361
U. S. 147, 153.
2 As I see it, a reporter's right to protect his source is bottomed on
the constitutional guarantee of a full flow of information to the
public. A newsman's personal First Amendment rights or the associational
rights of the newsman and the source are subsumed under
that broad societal interest protected by the First AmPndmPnt.. Obviously,
we are not here concerned with the parochial personal concerns
of particular newsmen or informants.
"The newsman-informer relationship is different from ... other
relationships whose confidentiality is protected by statute, such as
the attorney-client and physician-patient relationships. In the case
of other statutory privileges, the right of nondisclosure is granted to
the person making the communication in order that he will be
encouraged by strong assurances of confidentiality to seek such
relationships which contribute to his personal well-being. The judgment
is made that the interests of society will be served when individuals
consult physicians and lawyers; the public interest is thus
advanced by creating a zone of privacy that the individual can
control. However, in the case of the reporter-informer relationship,
society's interest is not in the welfare of the informant per se, but
rather in creating conditions in which information possessed by news
sources can reach public attention." Note, 80 Yale L. J. 317, 343
(1970) (footnotes omitted) (hereinafter Yale Note).
3 See generally Z. Chafee, Free Speech in the United States (1941);
A. Meikeljohn, Free Speech and Its Relation to Self-Government
(1948); T. Emerson, Toward a General Theory of the First Amendment
(1963).
BRANZBURG v. HA YES 727
665 STEWART, J., dissenting
by providing the people with the widest possible range
of fact and opinion, but it also is an incontestable precondition
of self-government. The press "has been a
mighty catalyst in awakening public interest in governmental
affairs, exposing corruption among public officers
and employees and generally informing the citizenry of
public events and occurrences .... " Estes v. Texas, 381
U. S. 532, 539; Mills v. Alabama, 384 U. S. 214, 219;
Grosjean, supra, at 250. As private and public aggregations
of power burgeon in size and the pressures for
conformity necessarily mount, there is obviously a continuing
need for an independent press to disseminate a
robust variety of information and opinion through reportage,
investigation, and criticism, if we are to preserve
our constitutional tradition of maximizing freedom of
choice by encouraging diversity of expression.
A
In keeping with this tradition, we have held that the
right to publish is central to the First Amendment and
basic to the existence of constitutional democracy. Grosjean,
supra, at 250; New York Times, supra, at 270.
A corollary of the right to publish must be the right
to gather news. The full flow of information to the
public protected by the free-press guarantee would be
severely curtailed if no protection whatever were afforded
to the process by which news is assembled and disseminated.
We have, therefore, recognized that there
is a right to publish without prior governmental approval,
Near v. Minnesota, 283 U. S. 697; New Yorlc
Times Co. v. United States, 403 U. S. 713, a right to distribute
information, see, e. g., Lovell v. Griffin, 303 U. S.
444, 452; Marsh v. Alabama, 326 U. S. 501; Martin v.
City of Struthers, 319 U. S. 141; Grosjean, supra, and a
right to receive printed matter, Lamont v. Postmaster
General, 381 U. S. 301.
728 OCTOBER TERM, 1971
STEWART, J., dissenting 408 U.S.
No less important to the news dissemination process
is the gathering of information. News must not be unnecessarily
cut off at its source, for without freedom to
acquire information the right to publish would be impermissibly
compromised. Accordingly, a right to gather
news, of some dimensions, must exist. Zemel v. Rusk,
381 U. S. 1.4 Note, The Right of the Press to Gather
Information, 71 Col. L. Rev. 838 (1971). As Madison
wrote: "A popular Government, without popular information,
or the means of acquiring it, is but a Prologue to
a Farce or a Tragedy; or, perhaps both." 9 Writings of
James Madison 103 (G. Hunt ed. 11910).
B
The right to gather news implies, in turn, a right
to a confidential relationship between a reporter and his
source. This proposition follows as a matter of simple
logic once three factual predicates are recognized: ( 1)
newsmen require informants to gather news; (2) confidentiality-
the promise or understanding that names
or certain aspects of communications will be kept off
the record-is essential to the creation and maintenance
of a news-gathering relationship with informants; and
(3) an unbridled subpoena power-the absence of a constitutional
right protecting, in any way, a confidential
relationship from compulsory process-will either deter
sources from divulging information or deter reporters
from gathering and publishing information.
4 In Zemel v. Rusk, 381 U. S. 1, we held that the Seeretary of
State's denial of a passport for travel to Cuba did not violate a
citizen's First Amendment rights. The rule was justified by the
"weightiest considerations of national security" and we concluded
that the "right to speak and publish does not carry with it the unrestrained
right to gather information." Id., at 16--17 (emphasis
supplied). The necessary implication is that some right to gather
information does exist.
BRANZBURG v. HAYES 729
665 STEWART, J., dissenting
It is obvious that informants are necessary to the
news-gathering process as we know it today. If it is
to perform its constitutional mission, the press must do
far more than merely print public statements or publish
prepared handouts. Familiarity with the people and
circumstances involved in the myriad background activities
that result in the final product called "news" is vital
to complete and responsible journalism, unless the press
is to be a captive mouthpiece of "newsmakers." 5
It is equally obvious that the promise of confidentiality
may be a necessary prerequisite to a productive relationship
between a newsman and his informants. An
officeholder may fear his superior; a member of the
bureaucracy, his associates; a dissident, the scorn of
majority opinion. All may have information valuable to
the public discourse, yet each may be willing to relate that
information only in confidence to a reporter whom he
trusts, either because of excessive caution or because of a
reasonable fear of reprisals or censure for unorthodox
5 In Cal,dwell v. United States, 434 F. 2d 1081, the Government
claimed that Caldwell did not have to maintain a confidential relationship
with members of the Black Panther Party and provide independent
reporting of their activities, since the Party and its leaders
could issue statements on their own. But, as the Court of Appeals
for the Ninth Circuit correctly observed:
"[I]t is not enough that Black Panther press releases and public addresses
by Panther leaders may continue unabated in the wake of
subpoenas such as the one here in question. It is not enough that
the public's knowledge of groups such as the Black Panthers should
be confined to their deliberate public pronouncements or distant news
accounts of their occasional dramatic forays into the public view.
"The need for an untrammeled press takes on special urgency in
times of widespread protest and dissent. In such times the First
Am~ndmfmt protections exist to maintain communication with dissenting
groups and to provide the public with a wide range of information
about the nature of protest and heterodoxy." Citing Associated
Press v. United States, 326 U. S. 1, 20; Thornhill v. Alabama,
310 U. S. 88, 102. Id., at 1084-1085.
730 OCTOBER TERM, 1971
STEWART, J., dissenting 408 U.S.
views. The First Amendment concern must not be with
the motives of any particular news source, but rather with
the conditions in which informants of all shades of the
spectrum may make information available through the
press to the public. Cf. Talley v. Cal if ornw, 362 U. S.
60, 65; Bates v. Little Rock, 361 U. S. 516; NAACP v.
Alabama, 357 U. S. 449.6
In Caldwell, the District Court found that "confidential
relationships . . . are commonly developed and
maintained by professional journalists, and are indispensable
to their work of gathering, analyzing and publishing
the news." 7 Commentators and individual reporters
have repeatedly noted the importance of confidentiality.8
6 As we observed in Talley v. California, 362 U. S. 60, "Anonymous
pamphlets, leaflets, brochures and even books have played m
important role in the progress of mankind. . . . Before the Revolutiona.
ry War colonial patriots frequently had to conceal their
authorship or distribution of literature that easily could have brought
down on them prosecutions by English-controlled courts. . . .
Even the Federalist Papers, written in favor of the adoption of our
Constitution, were published under fictitious names. It is plain that
anonymity has sometimes been assumed for the most constructive
purposes." Id., at 64--65. And in Lamont v. Postmaster General,
381 U. S.· 301, we recognized the importance to First Amendment
values of the right to receive information anonymously.
7 Application of Caldwell, 311 F. Supp. 358, 361.
8 See, e. g., F. Chalmers, A Gentleman of the Press: The Biography
of Colonel John Bayne MacLean 74-75 (1969); H. Klurfeld, Behind
the Lines: The World of Drew Pearson 50, 52-55 (1968); A. Krock,
Memoirs: Sixty Years on the Firing Line 181, 184-185 (1968); E.
Larsen, First with the Truth 22-23 (1968); R. Ottley, The Lonely
Warrior-The Life and Times of Robert S. Abbott 143-145 (1955);
C. Sulzberger, A Long Row of Candles; Memoirs and Diaries
241 (1969).
Af3 Walter Cronkite, a network television reporter, said in an
affidavit in Caldwell: "In doing my work, I (and those who assist
me) depend constantly on information, ideas, leads and opinions received
in confidence. Such material is essential in digging out newsworthy
facts and, equally important, in assessing the importance and
analyzing the significance of public events." App. 52.
BRANZBURG v. HAYES 731
665 STEWART, J., dissenting
And surveys among reporters and editors indicate that
the promise of nondisclosure is necessary for many types
of news gathering.9
Finally, and most important, when governmental officials
possess an unchecked power to compel newsmen
to disclose information received in confidence, sources
will clearly be deterred from giving information, and
reporters will clearly be deterred from publishing it,
because uncertainty about exercise of the power will
lead to "self-censorship." Smith v. Californw, 361 U. S.
147, 149-154; New York Times Co. v. Sullivan, 376 U.S.,
at 279. The uncertainty arises, of course, because
the judiciary has traditionally imposed virtually no limitations
on the grand jury's broad investigatory powers.
See Antell, The Modern Grand Jury: Benighted Supergovernment,
51 A. B. A. J. 153 (1965). See also Part II,
infra.
After today's decision, the potential informant can
never be sure that his identity or off-the-record communications
will not subsequently be revealed through
the compelled testimony of a newsman. A publicspirited
person inside government, who is not implicated
in any crime, will now be fearful of revealing corruption
or other governmental wrongdoing, because he will
now know he can subsequently be identified by use of
compulsory process. The potential source must, therefore,
choose between risking exposure by giving information
or avoiding the risk by remaining silent.
The reporter must speculate about whether contact
with a controversial source or publication of controversial
material will lead to a subpoena. In the event of a
9 See Guest & Stanzler, The Constitutional Argument for Newsmen
Concealing Their Sources, 64 Nw. U. L. Rev. 18 (1969); V.
Blasi, Press Subpoenas: An Empirical and Legal Analysis, Study
Report of the Reporters' Committee on Freedom of the Press 20-29
(hereinafter Blasi).
732 OCTOBER TERM, 1971
STEWART, J., dissenting 408U. S.
subpoena, under today's decision, the newsman will know
that he must choose between being punished for contempt
if he refuses to testify, or violating his profession's
ethics 10 and impairing his resource£ ulness as a reporter
if he discloses confidential information.11
Again, the commonsense understanding that such deterrence
will occur is buttressed by concrete evidence.
The existence of deterrent effects through fear and
self-censorship was impressively developed in the District
Court in Caldwell.12 Individual reporters 13 and
commentators " have noted such effects. Surveys have
verified that an unbridled subpoena power will substan-
10 The American Newspaper Guild has adopted the following rule
as part of the newsman's code of ethics: "[N]ewspapermen shall refuse
to reveal confidences or disclose sources of confidential information
in court or before other judicial or investigating bodies."
G. Bird & F. Merwin, The Press and Society 592 (1971).
11 Obviously, if a newsman does not honor a confidence he will have
difficulty establishing other confidential relationships necessary for
obtaining information in the future. See Siebert & Ryniker, Press
Winning Fight to Guard Sources, Editor & Publisher, Sept. 1, 1934,
pp. 9, 36-37.
12 The court found that "compelled disclosure of information received
by a journalist within the scope of . . . confidential relationships
jeopardizes those relationships and thereby impairs the
journalist's ability to gather, analyze and publish the news." Application
of CaUwell, 311 F. Supp., at 361.
13 See n. 8, supra.
14 Recent commentary is nearly unanimous in urging either an
absolute or qualified newsman's privilege. See, e. g., Goldstein, Newsmen
and Their Confidential Sources, New Republic, Mar. 21, 1970,
pp. 13-14; Yale Note, supra, n. 2; Comment, 46 N. Y. U. L.
Rev. 617 (1971); Nelson, The Newsmen's Privilege Against Disclosure
of Confidential Sources and Information, 24 Vand. L. Rev. 667
(1971); Note, The Right of the Press to Gather Information,
71 Col. L. Rev. 838 (1971); Comment, 4 U. Mich. J. L.
Ref. 85 (1970); Comment, 6 Harv. Civ. Rights-Civ. Lib. L.
Rev. 119 (1970); Comment, The Newsman's Privilege: Government
Investigations, Criminal Prosecutions and Private Litigation,
58 Calif. L. Rev. 1198 (1970) . But see the Court's opinion, ante,
BRANZBURG v. HAYES 733
665 STEWART, J., dissenting
tially impair the flow of news to the public, especially
in sensitive areas involving governmental officials, financial
affairs, political figures, dissidents, or minority groups
that require in-depth, investigative reporting.15 And the
Justice Department has recognized that "compulsory
process in some circumstances may have a limiting effect
on the exercise of First Amendment rights." 16 No evidence
contradicting the existence of such deterrent effects
was offered at the trials or in the briefs here by the
petitioner in Caldwell or by the respondents in Branzburg
and Pappas.
The impairment of the flow of news cannot, of course,
be proved with scientific precision, as the Court seems
to demand. Obviously, not every news-gathering relationship
requires confidentiality. And it is difficult to
pinpoint precisely how many relationships do require a
promise or understanding of nondisclosure. But we have
never before demanded that First Amendment rights
rest on elaborate empirical studies demonstrating beyond
any conceivable doubt that deterrent effects exist; we
have never before required proof of the exact number of
people potentially affected by governmental action, who
would actually be dissuaded from engaging in First
Amendment activity.
Rather, on the basis of common sense and available
information, we have asked, often implicitly, (I) whether
there was a rational connection between the cause ( the
governmental action) and the effect (the deterrenc·e or
at 690 n. 29. And see generally articles collected in Yale Note,
supra, n. 2.
Recent decisions are in conflict both as to the importance of the
deterrent effects and, a fortiori, as to the existence of a constitutional
right to a confidential reporter-source relationship. See the
Court's opinion, ante, at 686, and cases collected in Yale Note, at
318 nn. 6-7.
15 See Blasi 6-71; Guest & Stanzler, supra, n. 9, at 43-50.
16 Department of Justice Memo. No. 692 (Sept. 2, 1970).
734 OCTOBER TERM, 1971
STEWART, J., dissenting 408 u. s.
impairment of First Amendment activity), and (2)
whether the effect would occur with some regularity,
i. e., would not be de minimis. See, e. g., Grosjean v.
American Press Co., 297 U.S., at 244-245; Burstyn, Inc.
v. Wilson, 343 U.S. 495,503; Sweezy v. New Hampshire,
354 U.S. 234,248 (plurality opinion); NAACP v. Alabama,
357 U. S., at 461--466; Smith v. California, 361 U. S., at
150-154; Bates v. Little Rock, 361 U. S., at 523-524; Talley
v. California, 362 U. S., at 64-65; Shelton v. Tucker,
364 U. S. 479, 485--486; Cramp v. Board of Public Instruction,
368 U. S. 278,286; NAACP v. Button, 371 U.S. 415,
431--438; Gibson v. Florida Legislative Investigation Committee,
372 U.S. 539, 555-557; New York Times Co. v.
Sullivan, 376 U.S., at 277-278; Freedman v. Maryland,
380 U.S. 51, 59; DeGregory v. New Hampshire Attorney
General, 383 U. S. 825; Elfbrandt v. Russell, 384 U. S.
11, 16-19. And, in making this determination, we have
shown a special solicitude towards the "indispensable
liberties" protected by the First Amendment, NAACP
v. Alabama, supra, at 461; Bantam Books, Inc. v. Sullivan,
372 U. S. 58, 66, for "[f]reedoms such as these
are protected not only against heavy-handed frontal
attack, but also from being stifled by more subtle governmental
interference." Bates, supra, at 523.17 Once
this threshold inquiry has been satisfied, we have then
examined the competing interests in determining whether
17 Although, as the Court points out, we have held that the press
is not free from the requirements of the National Labor Relations
Act, the Fair Labor Standards Act, the antitrust laws, or nondiscriminatory
taxation, ante, at 683, these decisions were concerned
"only with restraints on certain business or commercial practices"
of the press. Citizen Publishing Co. v. United States, 394 U. S.
131, 139. And due weight was given to First Amendment interests.
For example, "The First Amendment, far from providing an argument
against application of the Sherman Act ... provides powerful
reasons to the contrary." Associated Press v. United States, 326
U.S., at 20.
BRANZBURG v. HA YES 735
665 STEWART, J., dissenting
there is an unconstitutional infringement of First Amendment
freedoms.
For example, in NAACP v. Alabama, supra, we found
that compelled disclosure of the names of those in
Alabama who belonged to the NAACP "is likely to
affect adversely the ability [ of the X AACP] and its members
to pursue their . . . beliefs which they admittedly
have the right to advocate, in that it may induce members
to withdraw from the Association and dissuade
others from joining it because of fear of exposure of
their beliefs shown through their associations and of
the consequences of this exposure." Id., at 462--463.
In Talley, supra, we held invalid a city ordinance that
forbade circulation of any handbill that did not have
the distributor's name on it, for there was "no doubt
that such an identification requirement would tend to
restrict freedom to distribute information and thereby
freedom of expression." Id., at 64. And in Burstyn,
Inc., supra, we found deterrence of First Amendment
activity inherent in a censor's power to exercise unbridled
discretion under an overbroad statute. Id., at 503.
Surely the analogous claim of deterrence here is as
securely grounded in evidence and common sense as the
claims in the cases cited above, although the Court calls
the claim "speculative." See ante, at 694. The deterrence
may not occur in every confidential relationship
between a reporter and his source.18 But it will cer-
18 The fact that some informants will not be deterred from giving
information by the prospect of the unbridled exercise of the subpoena
power only means that there will not always be a conflict between
the grand jury's inquiry and the protection of First Amendment
activities. But even if the percentage of such informants is relatively
large compared to the total "universe" of potential informants,
there will remain a large number of people in "absolute" terms who
will be deterred, and the flow of news through mass circulation newspapers
and electronic media will inevitably be impaired.
736 OCTOBER TERM, 1971
STEWART, J., dissenting 408 U.S.
tainly occur in certain types of relationships involving
sensitive and controversial matters. And such relationships
are vital to the free flow of information.
To require 8JlY greater burden of proof is to shirk
our duty to protect values securely embedded in the
Constitution. We cannot await an unequivocal-and
therefore unattainabl~imprimatur from empirical studies.
1° We can and must accept the evidence developed
in the record, and elsewhere, that overwhelmingly supports
the premise that deterrence will occur with regularity
in important types of news-gathering relationships.20
Thus, we cannot escape the conclusion that when
neither the reporter nor his source can rely on the shield
of confidentiality against unrestrained use of the grand
jury's subpoena power, valuable information will not be
published and the public dialogue will inevitably be
impoverished.
II
Posed against the First Amendment's protection of
the newsman's confidential relationships in these cases
is society's interest in the use of the grand jury to ad-
19 Empirical studies, after all, can only provide facts. It is the
duty of courts to give legal significance to facts; and it is the special
duty of this Court to understand the constitutional significance of
facts. We must often proceed in a state of less than perfect knowledge,
either because the facts are murky or the methodology used in
obtaining the facts is open to question. It is then that we must
look to the Constitution for the values that inform our presumptions.
And the importance to our society of the full flow of information to
the public has buttressed this Court's historic presumption in favor
of First Amendment values.
20 See, e. g., the uncontradicted evidence presented in affidavits
from newsmen in Caldwell, Appendix to No. 70--57, pp. 22-61 (statements
from Gerald Fraser, Thomas Johnson, John Kifner, Timothy
Knight, Nicholas Proffitt, Anthony Ripley, Wallace Turner, Gilbert
Noble, Anthony Lukas, Martin Arnold, David Burnham, Jon Lowell,
Frank Morgan, Min Yee, Walter Cronkite, Eric Sevareid, Mike Wallace,
Dan Rather, Marvin Kalb).
BRANZBURG v. HA YES 737
665 STEWART, J., dissenting
minister justice fairly and effectively. The grand jury
serves two important functions: "to examine into the
commission of crimes" and "to stand between the prosecutor
and the accused, and to determine whether the
charge was founded upon credible testimony or was
dictated by malice or personal ill will." Hale v. Henkel,
201 U. S. 43, 59. And to perform these functions the
grand jury must have available to it every man's relevant
evidence. See Blair v. United States, 250 U. S. 273,
281; Blackmer v. United States, 284 U. S. 421, 438.
Yet the longstanding rule making every person's evidence
available to the grand jury is not absolute. The
rule has been limited by the Fifth Amendment,21 the
Fourth Amendment,22 and the evidentiary privileges of
the common law.23 So it was that in Blair, supra, after
recognizing that the right against compulsory self-incrimination
prohibited certain inquiries, the Court noted
that "some confidential matters are shielded from considerations
of policy, and perhaps in other cases for special
reasons a witness may be excused from telling all that he
knows." Id., at 281 (emphasis supplied). And in
United States v. Bryan, 339 U. S. 323, the Court observed
that any exemption from the duty to testify before the
grand jury "presupposes a very real interest to be protected."
Id., at 332.
Such an interest must surely be the First Amendment
protection of a confidential relationship that I have discussed
above in Part I. As noted there, this protection
does not exist for the purely private interests of the
21 See Blau v. United States, 340 U.S. 159; Quinn v. United States,
349 U. S. 155; Curcio v. United States, 354 U. S. 118; MaUoy v.
Hogan, 378 U. S. 1.
22 See Silverthorne Lumber Co. v. United States, 251 U. S. 385.
23 See Committee on Rules of Practice and Procedure of Judicial
Conference of the United States, Revised Draft of Proposed Rules
of Evidence for the United States Courts and Magistrates (1971); 8
J. Wigmore, Evidence §§2290-2391 (McNaughton rev. 1961).
738 OCTOBER TERM, 1971
STEWART, J., dissenting 408 U.S.
newsman or his informant, nor even, at bottom, for the
First Amendment interests of either partner in the newsgathering
relationship.24 Rather, it functions to insure
nothing less than democratic decisionmaking through
the free flow of information to the public, and it serves,
thereby, to honor 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.
In striking the proper balance between the public
interest in the efficient administration of justice and
the First Amendment guarantee of the fullest flow of information,
we must begin with the basic proposition that
because of their "delicate and vulnerable" nature, NAACP
v. Button, 371 U. S., at 433, and their transcendent importance
for the just functioning of our society, First
Amendment rights require special safeguards.
A
This Court has erected such safeguards when government,
by legislative investigation or other investigative
means, has attempted to pierce the shield of privacy inherent
in freedom of association.26 In no previous case
have we considered the extent to which the First Amendment
limits the grand jury subpoena power. But the
24 Although there is a longstanding presumption against creation
of common-law testimonial privileges, United States v. Bryan, 339
U. S. 323, these privileges are grounded in an "individual interest
which has been found ... to outweigh the public interest in the
search for truth" rather than in the broad public concerns that
inform the First Amendment. I d., at 331.
25 The protection of information from compefled disclosure for
broad purposes of public policy has been recognized in decisions
involving police informers, see Roviaro v. Umted States, 353 U. S.
53, United States v. Ventresca, 380 U. S. 102, 108, Aguilar v. Texas,
378 U. S. 108, 114, McCray v. Illinois, 386 U. S. 300, and military
and state secrets, United States v. Reynolds, 345 U.S. I.
BRANZBURG v. HA YES 739
665 STEWART, J., dissenting
Court has said that "[t]he Bill of Rights is applicable to
investigations as to all forms of governmental action.
Witnesses cannot be compelled to give evidence against
themselves. They cannot be subjected to unreasonable
search and seizure. or can the First Amendment
freedoms of speech, press ... or political belief and
association be abridged." Watkins v. United Sta.tes,
354 U. S. 178, 188. And in Sweezy v. New Hampshire
it was stated: "It is particularly important that the
exercise of the power of compulsory process be carefully
circumscribed when the investigative process tends
to impinge upon such highly sensitive areas as freedom
of speech or press, freedom of political association, and
freedom of communication of ideas." 354 U. S., at 245
(plurality opinion).
The established method of "carefully" circumscribing
investigative powers is to place a heavy burden of justification
on government officials when First Amendment
rights are impaired. The decisions of this Court have
"consistently held that only a compelling state interest
in the regulation of a subject within the State's constitutional
power to regulate can justify limiting First
Amendment freedoms." NAACP v. Button, 371 U. S.,
at 438. And "it is an essential prerequisite to the
validity of an investigation which intrudes into the area
of constitutionally protected rights of speech, press, association
and petition that the State convincingly show a
substantial relation between the information sought and
a subject of overriding and compelling state interest."
Gibson v. Florida Legislative Investigation Committee,
372 V. S., at 546 (emphasis supplied). See also DeGregory
v. Attorney General of New Hampshire, 383 U. S.
825; NAACP v. Alabama, 357 U.S. 449; Sweezy, supra;
Watkins, supra.
Thus, when an invest-igation impinges on First Amendment
rights, the government must not only show that
740 OCTOBER TERM, 1971
STEWART, J., dissenting 408 U.S.
the inquiry is of "compelling and overriding importance"
but it must also "convincingly" demonstrate that the
investigation is "substantially related" to the information
sought.
Governmental officials must, therefore, demonstrate
that the information sought is clearly relevant to a
precisely defined subject of governmental inquiry. Watkins,
supra; Sweezy, supra.26 They must demonstrate
that it is reasonable to think the witness in question has
that information. Sweezy, supra; Gibson, supra .. 21 And
they must show that there is not any means of obtaining
the information less destructive of First Amendment
liberties. Shelton v. Tucker, 364 U. S., at 488;
Louisi.ana ex reL Gremillion v. NAACP, 366 U. S. 293,
296--297.23
These requirements, which we have recognized iti decisions
involving legislative and executive investigations,
serve established policies reflected in numerous First
26 As we said in Watkins v. United States, 354 U. S. 178,
"[WJ hen First Amendment rights are threatened, the delegation of
power to the [legislative] committee must be clearly revealed in its
charter." "It is the responsibility of the Congress . . . to insure
that compulsory process is used only in furtherance of a legislative
purpose. That requires that the instructions to an investigating
committee spell out the group's jurisdiction and purpose with sufficient
particularity. . . . The more vague the committee's charter is, the
greater becomes the possibility that the committee's specific actions
are not in conformity with the will of the parent House of Congress."
Id., at 198, 201.
27 We noted in Sweezy v. New Hampshire, 354 U. S. 234:
"The State Supreme Court itself recognized that there was a weakness
in its conclusion that the menace of forcible overthrow of the
government justified sacrificing constitutional rights. There was a
missing link in the chain of reasoning. The syllogism was not complete.
There was nothing to connect the questwning of petitioner
with this fundamental, interest of the State." Id., at 251 (emphasis
supplied).
28 See generally Note, Less Drastic Means and the First Amendment,
78 Yale L. J. 464 (1969).
BRANZBURG v. HA YES 741
665 STEWART, J., dissenting
Amendment decisions arising in other contexts. The
requirements militate against vague investigations that,
like vague laws, create uncertainty and needlessly discourage
First Amendment activity.29 They also insure
that a legitimate governmental purpose will not be pursued
by means that "broadly stifle fundamental personal
liberties when the end can be more narrowly achieved."
Shelton, supra, at 488.30 As we said in Gibson, supra,
"Of course, a legislative investigation-as any investigation-
must proceed 'step by step,' ... but step by step
or in totality, an adequate foundation for inquiry must
be laid before proceeding in such a manner as will substantially
intrude upon and severely curtail or inhibit
constitutionally protected activities or seriously interfere
with similarly protected associational rights." 372
U. S., at 557.
I believe the safeguards developed in our decisions involving
governmental investigations must apply to the
grand jury inquiries in these cases. Surely the function
of the grand jury to aid in the enforcement of the law
is no more important than the function of the legislature,
and its committees, to make the law. We have
long recognized the value of the role played by legislative
investigations, see, e. g., United States v. Rumely,
29 See Watkins, supra, at 208----209. See generally Baggett v. Bullitt,
377 U.S. 360, 372; Speiser v. Randall, 357 U.S. 513, 526; Ashton
v. Kentucky, 384 U. S. 195, 200-201; Dombrowski v. Pfister, 380
U.S. 479, 486; Smith v. California, 361 U.S., at 150-152; Winters
v. New York, 333 U. S. 507; Stromberg v. California, 283 U. S.,
at 369. See also Note, The Chilling Effect in Constitutional Law,
69 Col. L. Rev. 808 (1969).
30 See generally Zwickler v. Koota, 389 U. S. 241, 249-250, and
cases cited therein; Coates v. Cincinnati, 402 U.S. 611,616; Cantwell
v. Connecticut, 310 U. S. 296, 307; De Jonge v. Oregon, 299
U. S., at 364-365; Schneider v. State, 308 U. S. 147, 164; Cox v.
Louisiana, 379 U. S. 559, 562-564. Cf. NAACP v. Button, 371
U. S. 415, 438. See also Note, The First Amendment Overbreadth
Doctrine, 83 Harv. L. Rev. 844 (1970).
742 OCTOBER TERM, 1971
STEWART, J., dissenting 408U. S.
345 U. S. 41, 43; Barenblatt v. United States, 360 U. S.
109, 111-112, for the "power of the Congress to conduct
investigations is inherent ... [ encompassing} surveys of
defects in our social, economic or political system for
the purpose of enabling the Congress to remedy them."
Watkins, supra, at 187. Similarly, the associational
rights of private individuals, which have been the prime
focus of our First Amendment decisions in the investigative
sphere, are hardly more important than the First
Amendment rights of mass circulation newspapers and
electronic media to disseminate ideas and information,
and of the general public to receive them. Moreover,
the vices of vagueness and overbreadth that legislative
investigations may manifest are also exhibited by
grand jury inquiries, since grand jury investigations are
not limited in scope to specific criminal acts, see, e. g.,
Wilson v. United States, 221 U. S. 361, Hendricks v.
United States, 223 U. S. 178, 184, United Sta.tes v. Johnson,
319 U. S. 503, and since standards of materiality
and relevance are greatly relaxed. Holt v. United States,
218 U. S. 245; Costello v. United States, 350 U. S. 359.
See generally Note, The Grand Jury as an Investigatory
Body, 74 Harv. L. Rev. 590, 591-592 (1961).31 For, as
the United States notes in its brief in Caldwell, the
31 In addition, witnesses customarily are not allowed to object to
questions on the grounds of materiality or relevance, since the scope
of the grand jury inquiry is deemed to be of no concern to the
witness. Carter v. United States, 417 F. 2d 384, cert. denied, 399
U. S. 935. Nor is counsel permitted to be present to aid a witness.
See In re Graban, 352 U. S. 330.
See generally Younger, The Grand Jury Under Attack, pt. 3, 46
J. Crim. L. C. & P. S. 214 (1955); Recent Cases, 104 U. Pa. L. Rev.
429 (1955); Watts, Grand Jury: Sleeping Watchdog or Expensive
Antique, 37 N. C. L. Rev. 290 (1959); Whyte, Is the Grand Jury
Necessary?, 45 Va. L. Rev. 461 (1959); Note, 2 Col. J. Law & Soc.
Prob. 47, 58 (1966); Antell, The Modern Grand Jury: Benighted
Supergovernment, 51 A. B. A. J. 153 (1965); Orfield, The Federal
Grand Jury, 22 F. R. D. 343.
BRANZBURG v. HAYES 743
665 STEWART, J., dissenting
grand jury "need establish no factual basis for commencing
an investigation, and can pursue rumors which further
investigation may prove groundless."
Accordingly, when a reporter is asked to appear before
a grand jury and reveal confidences, I would hold
that the government must ( 1) show that there is probable
cause to believe that the newsman has information
that is clearly relevant to a specific probable violation
of law; 32 (2) demonstrate that the information sought
cannot be obtained by alternative means less destructive
of First Amendment rights; and (3) demonstrate a compelling
and overriding interest in the information.33
This is not to say that a grand jury could not issue
a subpoena until such a showing were made, and it is
not to say that a newsman would be in any \vay privileged
to ignore any subpoena that was issued. Obviously,
before the government's burden to make such a
showing were triggered, the reporter would have to
move to quash the subpoena, asserting the basis on
which he considered the particular relationship a confidential
one.
32 The standard of proof employed by most grand juries, federal
and State, is simply "probable cause" to believe that the accused
has committed a crime. See Note, 1963 Wash. U. L. Q. 102; L. Hall
et al., Modern Criminal Procedure 793-794 (1969). Generally speaking,
it is extremely difficult to challenge indictments on the ground
that they are not supported by adequate or competent evidence. Cf.
Costello v. United States, 350 U. S. 359; Beck v. Washington, 369
U.S. 541.
33 Cf. Garland v. Torre, 259 F. 2d 545. The Court of Appeals for
the Second Circuit dedined to provide a testimonial privilege to a
newsman called to testify at a civil trial. But the court recognized a
newsman's First Amendment right to a confidential relationship with
his source and concluded: "It is to be noted that we are not dealing
here with the use of the judicial process to force a wholesale disclosure
of a newspaper's confidential sources of news, nor with a case where
the identity of the news source is of doubtful relevance or materjality.
. . . The question asked ... went to the heart of the plaintiff's
claim." Id., at 549-550 ( citations omitted).
744 OCTOBER TERM, 1971
STEWART, J., dissenting 408U. S.
B
The crux of the Court's rejection of any newsman's
privilege is its observation that only "where news sources
themselves are implicated in crime or possess information
relevant to the grand jury's task need they or the
reporter be concerned about grand jury subpoenas." See
ante, at 691 ( emphasis supplied). But this is a most
misleading construct. For it is obviously not true that
the only persons about whom reporters will be forced
to testify will be those "confidential informants involved
in actual criminal conduct" and those having "information
suggesting megal conduct by others." See ante,
at 691, 693. As noted above, given the grand jury's extraordinarily
broad investigative powers and the weak
standards of relevance and materiality that apply during
such inquiries, reporters, if they have no testimonial privilege,
will be called to give information about informants
who have neither committed crimes nor have information
about crime. It is to avoid deterrence of such sources
and thus to prevent needless injury to First Amendment
values that I think the government must be required
to show probable cause that the newsman has
information that is clearly relevant to a specific probable
violation of criminal law.34
3' If this requirement is not met, then the government will basically
be allowed to undertake a "fishing expedition" at the expense of
the press. Such general, exploratory investigations will be most
damaging to confidential news-gathering relationships, since they
will create great uncertainty in both reporters and their sources.
The Court sanctions such explorations, by refusing to apply a
meaningful "probable cause" requirement. See ante, at 701-702. As
the Court states, a grand jury investigation "may be triggered by
tips, rumors, evidence proffered by the prosecutor, or the personal
knowledge of the grand jurors." Ante, at 701. It thereby invites
government to try to annex the press as an investigative arm, since
any time government wants to probe the relationships between the
BRANZBURG v. HAYES 745
665 STEWART, J., dissenting
Similarly, a reporter may have information from a confidential
source that is "related" to the commission of
crime, but the government may be able to obtain an indictment
or otherwise achieve its purposes by subpoenaing
persons other than the reporter. It is an obvious
but important truism that when government aims have
been fully served, there can be no legitimate reason to
disrupt a confidential relationship between a reporter
and his source. To do so would not aid the administration
of justice and would only impair the flow of
information to the public. Thus, it is to avoid deterrence
of such sources that I think the government must
show that there are no alternative means for the grand
jury to obtain the information sought.
Both the "probable cause" and "alternative means"
requirements would thus serve the vital function of
mediating between the public interest in the administration
of justice and the constitutional protection of the
full flow of information. These requirements would
avoid a direct conflict between these competing concerns,
and they would generally provide adequate protection
for newsmen. See Part III, infra.35 No doubt the courts
would be required to make some delicate judgments in
working out this accommodation. But that, after all,
newsman and his source, it can, on virtually any pretext, convene a
grand jury and compel the journalist to testify.
The Court fails to recognize that under the guise of "investigating
crime" vindictive prosecutors can, using the broad powers of the
grand jury which are, in effect, immune from judicial supervision,
explore the newsman's sources at will, with no serious law enforcement
purpose. The secrecy of grand jury proceedings affords little
consolation to a news source; the prosecut-Or obviously will, in most
cases, have knowledge of testimony given by grand jury witnesses.
35 We need not, therefore, reach the question of whether government's
interest in these cases is "overriding and compelling." I do
not, however, believe, as the Court does, that all grand jury investigations
automatically would override the newsman's testimonial
privilege.
746 OCTOBER TERM, 1971
STEWART, J., dissenting 408 U.S.
is the function of courts of law. Better such judgments,
however difficult, than the simplistic and stultifying
absolutism adopted by the Court in denying any force
to the First Amendment in these cases.36
The error in the Court's absolute rejection of First
Amendment interests in these cases seems to me to be
most profound. For in the name of advancing the administration
of justice, the Court's decision, I think,
will only impair the achievement of that goal. People
entrusted with law enforcement responsibility, no less
than private citizens, need general information relating
to controversial social problems. Obviously, press reports
have great value to government, even when the
newsman cannot be compelled to testify before a grand
jury. The sad paradox of the Court's position is that
when a grand jury may exercise an unbridled subpoena
power, and sources involved in sensitive matters become
fearful of disclosing information, the newsman will not
only cease to be a useful grand jury witness; he will cease
to investigate and publish information about issues of
public import. I cannot subscribe to such an anomalous
result, for, in my view, the interests protected by the
First Amendment are not antagonistic to the administration
of justice. Rather, they can, in the long run, only
be complementary, and for that reason must be given
great "breathing space." NAACP v. Button, 371 U. S.,
at 433.
III
In deciding what protection should be given to information
a reporter receives in confidence from a news
source, the Court of Appeals for the Ninth Circuit affirmed
the holding of the District Court that the grand
36 The disclaimers in MR. JusTICE PowELL's concurring opinion
leave room for the hope that in some future case the Court may take
a less absolute position in this area.
BRANZBURG v. HAYES 747
665 STEWART, J., dissenting
jury power of testimonial compulsion must not be exercised
in a manner likely to impair First Amendment
interests "until there has been a clear showing of a compelling
and overriding national interest that cannot be
served by any alternative means." Caldwell v. United
States, 434 F. 2d 1081, 1086. It approved the request
of respondent Caldwell for specification by the government
of the "subject, direction or scope of the Grand
Jury inquiry." Id., at 1085. And it held that in the
circumstances of this case Caldwell need not divulge
confidential information.
I think this decision was correct. On the record before
us the United States has not met the burden that
I think the appropriate newsman's privilege should
reqmre.
In affidavits before the District Court, the United
States said it was investigating possible violations of 18
U.S. C.§ 871 (threats against the President), 18 U.S. C.
§ 1751 (assassination, attempts to assassinate, conspiracy
to assassinate the President), 18 U. S. C. § 231 (civil
disorders), 18 U. S. C. § 2101 (interstate travel to incite
a riot), 18 U. S. C. § 1341 (mail fraud and swindles)
and other crimes that were not specified. But, with
one exception, there has been no factual showing in this
case of the probable commission of, or of attempts to
commit, any crimes.3' The single exception relates to
the allegation that a Black Panther Party leader, David
Hilliard, violated 18 U. S. C. § 871 during the course of a
speech in November 1969. But Caldwell was subpoenaed
two months after an indictment was returned against Hilliard,
and that charge could not, subsequent to the indictment,
be investigated by a grand jury. See In re
National Window Glass Workers, 287 F. 219; United
37 See Blasi 61 et seq.
748 OCTOBER TERM, 1971
STEWART, J., dissenting 408 U.S.
States v. Dardi, 330 F. 2d 316, 336.38 Furthermore,
the record before us does not show that Caldwell
probably had any information about the violation of
any other federal criminal laws,39 or that alternative
38 After Caldwell was first subpoenaed to appear before the grand
jury, the Government did undertake, by affidavits, to "set forth
facts indicating the general nature of the grand jury's investigation
[and] witness Earl Caldwell's possession of information relevant to
this general inquiry." In detailing the basis for the belief that a
crime had probably been committed, the Government simply asserted
that certain actions had previously been taken by other grand juries,
and by Government counsel, with respect to certain members of the
Black Panther Party (i. e., immunity grants for certain Black
Panthers were sought; the Government moved to compel party
members to testify before grand juries; and contempt citations were
sought when party members refused to testify). No facts were
asserted suggesting the actual commission of crime. The exception,
as noted, involved David Hilliard's speech and its republication in
the party newspaper, the Black Panther, for which Hilliard had
been indicted before Caldwell was subpoenaed.
39 In its affidavits, the Government placed primary reliance on
certain articles published by Caldwell in the New York Times during
1969 (on June 15, July 20, July 22, July 27, and Dec. 14). On
Dec. 14, 1969, Caldwell wrote:
"'We are special,' Mr. Hilliard said recently 'We advocate the very
direct overthrow of the Government by way of force and violence.
By picking up guns and moving against it because we recognize it
as being oppressive and in recognizing that we know that the only
solution to it is armed struggle.'
"In their role as the vanguard in a revolutionary struggle, the
Panthers have picked up guns.
"Last week two of their leaders were killed during the police raid
on one of their offices in Chicago. And in Los Angeles a few days
earlier, three officers and three Panthers were wounded in a similar
shooting incident. In these and in some other raids, the police have
found caches of weapons, including high-powered rifles." App. in
No. 70-57, p. 13.
In my view, this should be read as indicating that Caldwell had
interviewed Panther leaders. It does not indicate that he probably
had knowledge of the crimes being investigated by the Government.
And, to repeat, to the extent it does relate to Hilliard's threat, an
BRANZBURG v. HAYES 749
665 STEWART, J., dissenting
means of obtaining the desired information were
pursued.4°
In the Caldwell case, the Court of Appeals further
found that Caldwell's confidential relationship with the
leaders of the Black Panther Party would be impaired
if he appeared before the grand jury at all to answer
questions, even though not privileged. Caldwell v.
Unite-d States, 434 F. 2d, at 1088. On the particular
facts before it,41 the court concluded that the very
indictment had already been brought in that matter. The other
articles merely demonstrate that Black Panther Party leaders had
told Caldwell their ideological beliefs-beliefs that were readily
available to the Government through other sources, like the party
newspaper.
io The Government did not attempt to show that means less impinging
upon First Amendment interests had been pursued.
-u In an affidavit filed with the District Court, Caldwell stated:
"I began covering and writing articles about the Black Panthers
almost from the time of their inception, and I myself found that in
those first months . . . they were very brief and reluctant to discuss
any substantive matter with me. However, as they realized I
could be trusted and that my sole purpose was to collect my information
and present it objectively in the newspaper and that I had
no other motive, I found that not only were the party leaders
available for in-depth interviews but also the rank and file members
were cooperative in aiding me in the newspaper stories that I
wanted to do. During the time that I have been covering the party,
I have noticed other newspapermen representing legitimate organizations
in the news media being turned away because they were not
known and trusted by the party leadership.
"As a result of the relationship that I have developed, I have been
able to write lengthy stories about the Panthers that have appeared
in The New York Times and have been of such a nature that other
reporters who have not known the Panthers have not been able to
write. Many of these stories have appeared in up to 50 or 60 other
newspapers around the country.
"The Black Panther Party's method of operation with regard to
members of the press is significantly different from that of other
organizations. For instance, press credentials are not recognized as
being of any significance. In addition, interviews are not normally
designated as being 'backgrounders' or 'off the record' or 'for
750 OCTOBER TERM, 1971
STEWART, J., dissenting 408 U.S.
appearance by Caldwell before the grand jury would
jeopardize his relationship with his sources, leading to
a severance of the news-gathering relationship and impairment
of the flow of news to the public: •2
"Appellant asserted in affidavit that there is
nothing to which he could testify (beyond that which
he has already made public and for which, therefore,
his appearance is unnecessary) that is not protected
by the District Court's order. If this is
true-and the Government apparently has not believed
it necessary t-0 dispute it-appellant's response
to the subpoena would be a barren performpublication'
or 'on the record.' Because no substantive interviews
are given until a relationship of trust and confidence is developed
between the Black Panther Party members and a reporter, statements
are rarely made to such reporters on an expressed 'on' or 'off'
the record basis. Instead, an understanding is developed over a
period of time between the Black Panther Party members and the
reporter as to matters which the Black Panther Party wishes to disclose
for publications and those matters which are given in confidence.
. . . Indeed, if I am forced to appear in secret grand jury
proceedings, my appearance alone would be interpreted by the Black
Panthers and other dissident groups as a possible disclosure of
confidences and trusts and would similarly destroy my effectiveness
as a newspaperman."
The Government did not contradict this affidavit.
• 2 "Militant groups might very understandably fear that, under
the pressure of examination before a Grand Jury, the witness may
fail to protect their confidences . . . . The Government characterizes
this anticipated loss of communication as Black Panther reprisal ....
But it is not an extortionate threat we face. It is human reaction
as reasonable to expect as that a client will leave his lawyer
when his confidence is shaken. . . . As the Government points out,
loss of such a sensitive news source can also result from its reaction
to indiscreet or unfavorable reporting or from a reporter's association
with Government agents or persons disapproved of by the news
source. Loss in such a case, however, results from an exercise of
the choice and prerogative of a free press. It is not the result of
Government compulsion." Caldwell v. United States, 434 F. 2d, at
1088.
665
BRANZBURG v. HAYES 751
STEWART, J., dissenting
ance-one of no benefit to the Grand Jury. To
destroy appellant's capacity as news gatherer for
such a return hardly makes sense. Since the cost
to the public of excusing his attendance is so slight,
it may be said that there is here no public interest
of real substance in competition with the First
Amendment freedoms that are jeopardized.
"If any competing public interest is ever to arise
in a case such as this ( where First Amendment liberties
are threatened by mere appearance at a Grand
Jury investigation) it will be on an occasion in
which the witness, armed with his privilege, can still
serve a useful purpose before the Grand Jury. Considering
the scope of the privilege embodied in the
protective order, these occasions would seem to be
unusual. It is not asking too much of the Government
to show that such an occasion is presented
here." Id., at 1089.
I think this ruling was also correct in light of the
particularized circumstances of the Caldwell case. Obviously,
only in very rare circumstances would a confidential
relationship between a reporter and his source
be so sensitive that mere appearance before the grand
jury by the newsman would substantially impair his newsgathering
function. But in this case, the reporter made
out a prima facie case that the flow of news to the public
would be curtailed. And he stated, without contradiction,
that the only nonconfidential material about which
he could testify was already printed in his newspaper
articles.43 Since the United States has not attempted to
• 3 Caldwell stated in his affidavit filed with the District Court,
see n. 40, supra:
"It would be virtually impossible for me to recall whether any
particular matter disclosed to me by members of the Black Panther
Party since January 1, 1969, was based on an understanding that it
would or would not be confidential. Generally, those matters which
were made on a nonconfidential or 'for publication' basis have been
752 OCTOBER TERM, 1971
STEWART, J., dissenting 408 u. s.
refute this assertion, the appearance of Caldwell would,
on these facts, indeed be a "barren performance." But
this aspect of the Caldwell judgment I would confine to
its own facts. As the Court of Appeals appropriately observed:
"[T]he rule of this case is a narrow one ... . "
Caldwell, supra, at 1090.
Accordingly, I would affirm the judgment of the Court
of Appeals in No. 70-57, United States v. Caldwell.44
In the other two cases before us, No. 70-85, Branzburg v.
Hayes and Meigs, and No. 70-94, In re Pappas, I would
vacate the judgments and remand the cases for further
proceedings not inconsistent with the views I have
expressed in this opinion.
published in articles I have written in The New York Times; conversely,
any matters which I have not thus far disclosed in published
articles would have been given to me based on the understanding
that they were confidential and would not be published."
H The District Court reserved jurisdiction to modify its order
on a showing of a governmental interest which cannot be served by
means other than Caldwell's grand jury testimony. The Government
would thus have further opportunity in that court to meet the
burden that, I think, protection of First Amendment rights requires.
KLEINDIENST v. MANDEL 753
Syllabus
KLEINDIENST, ATTORNEY GENERAL, ET AL.
V. MANDEL ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
No. 71-16. Argued April 18, 1972-Decided June 29, 1972
This action was brought to compel the Attorney General to grant a
temporary nonimmigrant visa to a Belgian journalist and Marxian
theoretician whom the American plaintiff-appellees had invited to
participate in academic conferences and discussions in this country.
The alien had been found ineligible for admission under §§ 212 (a)
(28) (D) and (G) (v) of the Immigration and Nationality Act of
1952, barring those who advocate or publish "the economic, international,
and governmental doctrines of world communism." The
Attorney General had declined to waive ineligibility as he has the
power to do under § 212 (d) of the Act, basing his decision on
unscheduled activities engaged in by the alien on a previous visit
to the United States, when a waiver was granted. A three-judge
District Court, although holding that the alien had no personal
entry right, concluded that citizens of this country had a First
Amendment right to have him enter and to hear him, and enjoined
enforcement of § 212 as to this alien. Held: In the exercise of
Congress' plenary power to exclude aliens or prescribe the conditions
for their entry into this country, Congress in § 212 (a) (28)
of the Act has delegated conditional exercise of this power to the
Executive Branch. When, as in this case, the Attorney General
decides for a legitimate and bona fide reason not to waive the
statutory exclusion of an alien, courts will not look behind his
decision or weigh it against the First Amendment interests of those
who would personally communicate with the alien. Pp. 761-770.
325 F. Supp. 620, reversed.
BLACKMUN, J., delivered the opm1on of the Court, in which
BURGER, C. J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ.,
joined. DouGLAS, J., filed a dissenting opinion, post, p. 770. MARSHALL,
J., filed a dissenting opinion, in which BRENNAN, ,J., joined,
post, p. 774.
754 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
Deputy Solicitor General Frie.dman argued the cause
for appellants. On the briefs were Solicitor General Griswold,
Assistant Attorney General M ardian, A. Raymond
Randolph, Jr., Robert L. Keuch, Edward S. Christenbury,
and Lee B. Anderson.
Leonard B. Boudin argued the cause for appellees.
With him on the brief were Victor Rabinowitz and David
Rosenberg.
David Carliner and Melvin L. Wulf filed a brief for
the American Civil Liberties Union as amicus curwe
urging affirmance.
MR. JuSTICE BLACKMUN delivered the opinion of the
Court.
The appellees have framed the issue here as follows:
"Does appellants' action in refusing to allow an
alien scholar to enter the country to attend academic
meetings violate the First Amendment rights
of American scholars and students who had invited
him?" 1
Expressed in statutory terms, the question is whether
§§ 212 (a)(28)(D) and (G)(v) and § 212 (d)(3)(A) of
the Immigration and Nationality Act of 1952, 66 Stat.
182, 8 U. S. C. §§ 1182 (a)(28)(D) and (G)(v) and
§ 1182 (d)(3)(A), providing that certain aliens "shall
be ineligible to receive visas and shall be excluded
from admission into the United States" unless the Attorney
General, in his discretion, upon recommendation
by the Secretary of State or a consular officer, waives
inadmissibility and approves temporary admission, are
unconstitutional as applied here in that they deprive
American citizens of freedom of speech guaranteed by
the First Amendment.
1 Brief for Appellees l.
r
KLEINDIENST v. MANDEL 755
753 Opinion of the Court
The challenged provisions of the statute are:
"Section 212 (a). Except as otherwise provided
in this Act, the following classes of aliens shall be
ineligible to receive visas and shall be excluded from
admission into the United States:
"(28) Aliens who are, or at any time have been,
members of any of the following classes:
"(D) Aliens not within any of the other provisions
of this paragraph who advocate the economic,
international, and governmental doctrines of
world communism or the establishment in the
United States of a totalita.rian dictatorship ....
"(G) Aliens who write or publish ... (v) the
economic, international, and governmental doctrines
of world communism or the establishment in the
United States of a totalitarian dictatorship; .
"( d)
"(3) Except as provided in this subsection, an
alien (A) who is applying for a nonimmigrant visa
and is known or believed by the consular officer to
be ineligible for such visa under one or more of the
paragraphs enumerated in subsection (a) ... may,
after approval by the Attorney General of a recommendation
by the Secretary of State or by the
consular officer that the alien be admitted temporarily
despite his inadmissibility, be granted such
a visa and may be admitted into the United States
temporarily as a nonimmigrant in the discretion of
the Attorney General .... "
Section 212 (d)(6) provides that the Attorney General
"shall make a detailed report to the Congress in any
756 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
case in which he exercises his authority under paragraph
(3) of this subsection on behalf of any alien excludable
under paragraphs (9), (10), and (28) "
I
Ernest E. Mandel resides in Brussels, Belgium, and
is a Belgian citizen. He is a professional journalist
and is editor-in-chief of the Belgian Left Socialist weekly
La Gauche. He is author of a two-volume work entitled
Marxist Economic Theory published in 1969.
He asserted in his visa applications that he is not a
member of the Communist Party. He has described
himself, however, as "a revolutionary Marxist." 2 He
does not dispute, see 325 F. Supp. 620, 624, that he advocates
the economic, governmental, and international
doctrines of world communism.3
Mandel was admitted to the United States temporarily
in 1962 and again in 1968. On the first visit
he came as a working journalist. On the second he
accepted invitations to speak at a number of universiticS
and colleges. On each occasion, although apparently
he was not then aware of it, his admission followed
a finding of ineligibility under§ 212 (a)(28), and
the Attorney General's exercise of discretion to admit
him temporarily, on recommendation of the Secretary
of State, as § 212 (d) (3) (A) permits.
On September 8, 1969, Mandel applied to the American
Consul in Brussels for a nonimmigrant visa to
enter the United States in October for a six-day period,
during which he would participate in a conference on
2 E. Mandel, Revolutionary Strategy in the Imperialist Countries
( 1969), reprinted in App. 54-66.
3 Appellees, while suggesting that § 101 (a) ( 40), defining "world
communism," and § 212 (a) (28) (D) are unacceptably vague, "do
not contest the fact that appellants can and do conclude that Dr.
Mandel's Marxist economic philosophy falls within the scope of these
vague provisions." Brief for A ppellees 10 n. 8.
KLEINDIENST v. MANDEL 757
753 Opinion of the Court
Technology and the Third World at Stanford University.
4 He had be€n invited to Stanford by the Graduate
Student As.50ciation there. The invitation stated
that John Kenneth Galbraith would present the keynote
address and that Mandel would be expected to
participate in an ensuing panel discussion and to give a
major address the following day. The University,
through the office of its president, "heartily endorse[d]"
the invitation. When Mandel's intended visit became
known, additional invitations for lectures and conference
participations came to him from members of the
faculties at Princeton, Amherst, Columbia, and Vassar,
from groups in Cambridge, Massachusetts, and New
York City, and from others. One conference, to be in
New York City, was sponsored jointly by the Bertrand
Russell Peace Foundation and the Socialist Scholars
Conference; Mandel's assigned subject there was "Revolutionary
Strategy in Imperialist Countries." Mandel
then filed a second visa application proposing a more
extensive itinerary and a stay of greater duration.
On October 23 the Consul at Brussels informed
Mandel orally that his application of September 8 had
been refused. This was confirmed in writing on October
30. The Consul's letter advised him of the finding
of inadmissibility under § 212 (a) (28) in 1962, the
waivers in that year and in 1968, and the current denial
of a waiver. It said, however, that another request
for waiver was being forwarded to Washington in connection
with Mandel's second application for a visa.
The Department of State, by a letter dated November 6
Entry presumably was claimed as a nonimmigra.nt alien under
§ 101 (a) (15) (H) of the Act, 8 U. S. C. § 1101 (a) (15) (H), namely,
"an alien having a residence in a foreign country which he has
no intention of abandoning (i) who is of distinguished merit and
ability and who is coming temporarily to the United States to perform
services of an exceptional nature requiring such merit and
ability .... "
758 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
from its Bureau of Security and Consular Affairs to
Mandel's New York attorney, asserted that the earlier
waivers had been granted on condition that Mandel
conform to his itinerary and limit his activities to
the stated purposes of his trip, but that on his 1968
visit he had engaged in activities beyond the stated
purposes.5 For this reason, it was said, a waiver "was
5 MR . .TusTICE Dmmus in his dissent, post, at 773 n. 4, states that
Mandel's noncompliance with the conditions imposed for his 1968
visit "appear merely to have been his speaking at more universities
than his visa application indicated." The letter dated November 6,
1969, from the Bureau of Security and Consular Affairs of the Department
of State to Mandel's New York counsel observed: "On his
1968 visit, Mr. Mandel engaged in activities beyond the st:ttcd purposes
of his trip. For this reason, a waiver of ineligibility was not
sought in connection with his September visa application."
Counsel's affidavit in support of appellees' motion for the convening
of a three-judge court and for the issuance of a preliminary
injunction stated:
"Mr. Mandel further assured the Consul by letter on November 10,
1969 that he would not appear at any assembly in the United States
at which money was solicited for any political cause. This was
apparently in response to a charge that he had been present at such
a solicitation during his 1968 tour. (See also Exhibit L.)
"Of course, just as Mr. Mandel had no prior notice that he was
required to adhere to a stated itinerary in 1968, so Mr. Mandel was
not aware that he was forbidden from appearing where contributions
[ were] solicited for political causes. I have been advised by Mr.
George Novack, an American citizen, who coordinated Mr. Mandel's
1968 tour, that in fact the event in question was a cocktail reception
held at the Gotham Art Theatre in New York City on October
19, 1968. Mr. Mandel addressed the gathering on the events in
France during May and June. Later that evening posters by French
students were auctioned. The money was sent to aid the legal defense
of students who had taken part in the spring demonstrations.
Mr. Mandel did not participate in the fund raising. (See Ex. L, Oct.
30, 1969 let~r.)"
The asserted noncompliance by Mandel is therefore broader than
mere acceptance of more speaking engagements than his visa application
indicated.
KLEINDIENST v. MANDEL 759
753 Opinion of the Court
not sought in connection with his September visa application."
The Department went on to say, however,
that it had now learned that Mandel might not have
been aware in 1968 of the conditions and limitations
attached to his visa issuance, and that, in view of this
and upon his assurances that he would conform to his
stated itinerary and purposes, the Department was reconsidering
his case. On December 1 the Consul at
Brussels informed Mandel that his visa had been refused.
The Department of State in fact had recommended
to the Attorney General that Mandel's ineligibility be
waived with respect to his October visa application.
The Immigration and Naturalization Service, however,
acting on behalf of the Attorney General, see 28 U. S. C.
§ 510, in a letter dated February 13, 1970, to New York
counsel stated that it had determined that Mandel'~
1968 activities while in the United States "went far
beyond the stated purposes of his trip, on the basis of
which his admission had been authorized and represented
a flagrant abuse of the opportunities afforded
him to express his views in this country." The letter
concluded that favorable exercise of discretion, provided
for under the Act, was not warranted and that Mandel's
temporary admission was not authorized.
Mandel's address to the New York meeting was then
delivered by transatlantic telephone.
In March Mandel and six of the other appellees instituted
the present action against the Attorney General
and the Secretary of State. The two remaining
appellees soon came into the lawsuit by an amendment
to the complaint. All the appellees who joined Mandel
in this action are United States citizens and are university
professors in various fields of the social sciences.
They are persons who invited Mandel to speak at universities
and other forums in the United States or who
expected to participate in colloquia with him so that,
760 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
as the complaint alleged, "they may hear his views
and engage him in a free and open academic exchange."
Plaintiff-appe1lees claim that the statutes are unconstitutional
on their face and as applied in that they deprive
the American plaintiffs of their First and Fifth Amendment
rights. Specifically, these plaintiffs claim that the
statutes prevent them from hearing and meeting with
Mandel in person for discussions, in contravention of the
First Amendment; that §212 (a) (28) denies them equal
protection by permitting entry of "rightists" but not
"leftists" and that the same section deprives them of procedural
due process; that§ 212 (d)(3)(A) is an unconstitutional
delegation of congressional power to the Attorney
General because of its broad terms, lack of standards, and
lack of prescribed procedures; and that application of the
statutes to Mandel was "arbitrary and capricious" because
there was no basis in fact for concluding that he
was ineligible, and no rational reason or basis in fact
for denying him a waiver once he was determined ineligible.
Declaratory and injunctive relief was sought.
A three-judge district court was duly convened. The
case was tried on the pleadings and affidavits with exhibits.
Two judges held that, although Mandel had
no personal right to enter the United States, citizens
of this country have a First Amendment right to have
him enter and to hear him explain and seek to defend
his views. The court then entered a declaratory judgment
that § 212 (a)(28) and § 212 (d) (3)(A) were invalid
and void insofar as they had been or might be
invoked by the defendants to find Mandel ineligible for
admission. The defendants were enjoined from implementing
and enforcing those statutes so as to deny
Mandel admission as a nonimmigrant visitor. 325 F.
Supp. 620 (EDNY 1971). Judge Bartels dissented.
Id., at 637. Probable jurisdiction was noted. 404 U. S.
1013 ( 1972).
KLEINDIENST v. MANDEL 761
753 Opinion of the Court
II
Until 1875 alien migration to the United States was
unrestricted. The Act of March 3, 1875, 18 Stat. 477,
barred convicts and prostitutes. Seven years later Congress
passed the first general immigration statute. Act
of Aug. 3, 1882, 22 Stat. 214. Other legislation followed.
A general revision of the immigration laws was
effected by the Act of Mar. 3, 1903, 32 Stat. 1213.
Section 2 of that Act made ineligible for admission
"anarchists, or persons who believe in or advocate the
overthrow by force or violence of the Government of
the United States or of all government or of all forms
of law." By the Act of Oct. 16, 1918, 40 Stat. 1012,
Congress expanded the provisions for the exclusion of
subversive aliens. Title II of the Alien Registration
Act of 1940, 54 Stat. 671, amended the 1918 Act
to bar aliens who, at any time, had advocated or
were members of or affiliated with organizations that
advocated violent overthrow of the United States
Government.
In the years that followed, after extensive investigation
and numerous reports by congressional committees,
see Communist Party v. Subversive Activities Control
Board, 367 U. S. 1, 94 n. 37 (1961), Congress passed
the Internal Security Act of 1950, 64 Stat. 987. This
Act dispensed with the requirement of the 1940 Act of
a finding in each case, with respect to members of the
Communist Party, that the party did in fact advocate
violent overthrow of the Government. These provisions
were carried forward into the Immigration and Nationality
Act of 1952.
We thus have almost continuous attention on the
part of Congress since 1875 to the problems of immigration
and of excludability of certain defined classes
of aliens. The pattern generally has been one of in762
OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
creasing control with particular attention, for almost
70 years now, first t-0 anarchists and then to those with
communist affiliation or views.
III
It is clear that Mandel personally, as an unadmitted
and nonresident alien, had no constitutional right of
entry to this country as a nonimmigrant or otherwise.
United States ex rel. Turner v. Williams, 194 U. S. 279,
292 (1904); United States ex rel. Knauff v. Shaughnessy,
338 U. S. 537, 542 (1950); Galvan v. Press, 347 U. S.
522, 530--532 (1954); see Harisiades v. Shaughnessy,
342 U. S. 580, 592 ( 1952).
The appellees concede this. Brief for Appellees 33; Tr.
of Oral Arg. 28. Indeed, the American appellees assert
that "they sue to enforce their rights, individually and
as members of the American public, and assert none on
the part of the invited alien." Brief for Appellees 14.
"Dr. Mandel is in a sense made a plaintiff because he
is symbolic of the problem." Tr. of Oral Arg. 22.
The case, therefore, comes down to the narrow issue
whether the First Amendment confers upon the appellee
professors, because they wish to hear, speak, and debate
with Mandel in person, the ability to determine that
Mandel should be permitted to enter the country or,
in other words, to compel the Attorney General to allow
Mandel's admission.
IV
In a variety of contexts this Court has referred to a
First Amendment right to "receive information and
ideas":
"It is now well established that the Constitution
protects the right to receive information and ideas.
'This freedom [ of speech and press] . . . necessarily
753
KLEINDH;NST v. "MANDEL 763
Opinion of the Court
protects the right to receive .... ' Martin v. City
of Struthers, 319 U.S. 141, 143 (1943) .... " Stanley
v. Georgia, 394 U. S. 557, 564 (1969).
This was one basis for the decision in Thomas v. Collins,
323 U. S. 516 (1945). The Court there held that
a labor organizer's right to speak and the rights of
workers "to hear what he had to say," id., at 534, were
both abridged by a state law requiring organizers to
register before soliciting union membership. In a very
different situation, MR. JUSTICE WHITE, speaking for
a unanimous Court upholding the FCC's "fairness doctrine"
in Red Lion Broadcasting Co. v. FCC, 395 U. S.
367, 386-390 (1969), said:
"It. is the purpose of the First Amendment to preserve
an uninhibited marketplace of ideas in which
truth will ultimately prevail . . . . It is the right
of the public to receive suitable access to social,
political, esthetic, moral, and other ideas and experiences
which is crucial here. That right may
not constitutionally be abridged either by Congress
or by the FCC." Id., at 390.
And in Lamont v. Postmaster General, 381 U. S. 301
(1965), the Court held that a statute permitting the
Government to hold "communist political propaganda"
arriving in the mails from abroad unless the addressee
affirmatively requested in writing that it be delivered
to him placed an unjustifiable burden on the addressee's
First Amendment right. This Court has recognized
tha.t this right is "nowhere more vital" than in our
schools and universities. Shelton v. Tucker, 364 U. S.
479, 487 (1960); Sweezy v. New Hampshire, 354 U. S.
234, 250 (1957) (plurality opinion); Keyishian v.
Board of Regents, 385 U. S. 589, 603 (1967). See
Epperson v. Arkansas, 393 U. S. 97 (1968).
764 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
In the present case, the District Court majority held:
"The concern of the First Amendment is not with
a non-resident alien's individual and personal interest
in entering and being heard, but with the
rights of the citizens of the country to have the
alien enter and to hear him explain and seek to
defend his views; that, as Garrison [v. Louisiana,
379 U. S. 64 (1964)] and Red Lion observe, is of
the essence of self-government." 325 F. Supp., at
631.
The Government disputes this conclusion on two grounds.
First, it argues that exclusion of Mandel involves no
restriction on First Amendment rights at all since what
is restricted is "only action- the action of the alien in
coming into this country." Brief for Appellants 29.
Principal reliance is placed on Zemel v. Rusk, 381 U. S. 1
(1965), where the Government's refusal to validate an
American passport for travel to Cuba was upheld. The
rights asserted there were those of the passport applicant
himself. The Court held that his right to travel and his
asserted ancillary right to inform himself about Cuba
did not outweigh substantial "foreign policy considerations
affecting all citizens" that, with the backdrop
of the Cuban missile crisis, were characterized as the
"weightiest considerations of national security." Id.,
at 13, 16. The rights asserted here, in some contrast,
are those of American academics who have invited Mandel
to participate with them in colloquia, debates, and
discussion in the United States. In light of the Court's
previous decisions concerning the "right to receive information,"
we cannot realistically say that the problem
facing us disappears entirely or is nonexistent because
the mode of regulation bears directly on physical movement.
In Thomas the registration requirement on its
I
'
KLEINDIENST v. MANDEL 765
753 Opinion of the Court
face concerned only action. In Lamont, too, the face
of the regulation dealt only with the Government's undisputed
power to control physical entry of mail into
the country. See United States v. Robel, 389 U. S. 258,
263 (1967).
The Government also suggests that the First Amendment
is inapplicable because appellees have free access
to Mandel's ideas through his books and speeches, and
because "technological developments," such as tapes or
telephone hook-ups, readily supplant his physical presence.
This argument overlooks what may be particular
qualities inherent in sustained, face-to-face debate, discussion
and questioning. While alternative means of
access to Mandel's ideas might be a relevant factor were
we called upon to balance First Amendment rights against
governmental regulatory interests-a balance we find unnecessary
here in light of the discussion that follows in
Part V-we are loath to hold on this record that existence
of other alternatives extinguishes altogether any constitutional
interest on the part of the appellees in this
particular form of access.
V
Recognition that First Amendment rights are implicated,
however, is not dispositive of our inquiry here.
In accord with ancient principles of the international law
of nation-states, the Court in The Chinese Exclusion
Case, 130 U.S. 581,609 (1889), and in Fong Yue Ting v.
United States, 149 U.S. 698 (1893), held broadly, as the
Government describes it, Brief for Appellants 20, that the
power to exclude aliens is "inherent in sovereignty, necessary
for maintaining normal international relations and
defending the country against foreign encroachments and
dangers-a power to be exercised exclusively by the political
branches of government .... " Since that time,
the Court's general reaffirmations of this principle have
766 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
been legion.6 The Court without exception has sustained
Congress' "plenary power to make rules for the admission
of aliens and to exclude those who possess those characteristics
,vhich Congress has forbidden." Boutilier v. Immigration
and Naturalization Service, 387 U. S. 118, 123
(1967). "[O]ver no conceivable subject is the legislative
power of Congress more complete than it is over" the
admission of aliens. Oceanic Navigation Co. v. Stranahan,
214 U. S. 320, 339 (1909). In Lem Moon Sing v.
United States, 158 U. S. 538, 547 (1895), the first Mr.
Justice Harlan said:
"The power of Congress to exclude aliens altogether
from the United States, or to prescribe the
terms and conditions upon which they may come to
this country, and to have its declared policy in that
regard enforced exclusively through executive officers,
without judicial intervention, is settled by our previous
adjudications."
Mr. Justice Frankfurter ably articulated this history in
Galvan v. Press, 347 U. S. 522 (1954), a deportation
case, and we can do no better. After suggesting, at 530,
that "much could be said for the view" that due process
places some limitations on congresssional power in this
area "were we writing on a clean slate," he continued:
"But the slate is not clean. As to the extent of
the power of Congress under review, there is not
merely 'a page of history' ... but a whole volume.
Policies pertaining to the entry of aliens and their
right to remain here are peculiarly concerned with
6 See, for example, Ekiu v. United States, 142 U.S. 651,659 (1892);
Fok Yung Yo v. United States, 185 U. S. 296, 302 (1902); United
States ex rel. Turner v. Williams, 194 U. S. 279, 294 (1904); Keller
v. United States, 213 U. 8. 138, 143-144 (1909); Mahler v. Eby, 264
U.S. 32, 40 (1924); Shaughnessy v. Mezei, 345 U. 8. 206,210 (1953);
cf. Graham v. Richardson, 403 U.S. 365,377 (1971).
753
KLEINDIENST v. MANDEL 767
Opinion of the Court
the political conduct of government. In the enforcement
of these policies, the Executive Branch of the
Government must respect the procedural safeguards
of due process. . . . But that the formulation of
these policies is entrusted exclusively to Congress has
become about as firmly embedded in the legislative
and judicial tissues of our body politic as any aspect
of our government. . ..
"We are not prepared to deem ourselves wiser or
more sensitive to human rights than our predecessors,
especially those who have been most zealous in protecting
civil liberties under the Constitution, and
must therefore under our constitutional system recognize
congressional power in dealing with aliens .... "
Id., at 531-532.
We are not inclined in the present context to reconsider
this line of cases. Indeed, the appellees, in contrast to
the amicus, do not ask that we do so. The appellees
recognize the force of these many precedents. In seeking
to sustain the decision below, they concede that Congress
could enact a blanket prohibition against entry of all
aliens falling into the class defined by§§ 212 (a)(28)(D)
and ( G) ( v), and that First Amendment rights could not
override that decision. Brief for Appellees 16. But
they contend that by providing a waiver procedure, Congress
clearly intended that persons ineligible under the
broad provision of the section would be temporarily admitted
when appropriate "for humane reasons and for
reasons of public interest." S. Rep. No. 1137, 82d Cong.,
2d Sess., 12 (1952). They argue that the Executive's
implementation of this congressional mandate through
decision whether to grant a waiver in each individual case
must be limited by the First Amendment rights of persons
like appellees. Specifically, their position is that the First
Amendment rights must prevail, at least where the Gov768
OCTOBER TERM, 1971
Opinion of the Court 408U.S.
emment advances no justification for failing t-0 grant a
waiver. They point to the fact that waivers have been
granted in the vast majority of cases.7
Appellees' First Amendment argument would prove
too much. In almost every instance of an alien excludable
under § 212 (a)(28), there are probably those who
would wish to meet and speak with him. The ideas of
most such aliens might not be so influential as those of
Mandel, nor his American audience so numerous, nor the
planned discussion forums so impressive. But the First
Amendment does not protect only the articulate, the well
known, and the popular. Were we to endorse the proposition
that governmental power to withhold a waiver must
yield whenever a bona fide claim is made that American
citizens wish to meet and talk with an alien excludable
under § 212 (a) (28), one of two unsatisfactory results
would necessarily ensue. Either every claim would prevail,
in which case the plenary discretionary authority
Congress granted the Executive becomes a nullity, or
7 The Government's brief states:
"The Tmmigmtion and Naturalization Service reports the following
with respect to applications to the Attorney General for waiver of
an alien's ineligibility for admission under Section 212 (a) (28):
Total Number of Number Number
Applications for of of
Waiver of Waivers Waivers
"Year Section 212 (a) (28) Granted Denied
1971 6210 6196 14
1970 6193 6189 4
1969 4993 4984 9
1968 4184 4176 8
1967 3860 3852 8"
Brief for Appellants 18 n. 24. These cases, however, are only those
that, as § 212 (d) (3) (A) provides, come to the Attorney General
with a positive recommendation from the Secretary of State or the
consular officer. The figures do not include those cases where these
officials had refrained from making a positive recommendation.
KLEINDIENST v. MANDEL 769
753 Opinion of the Court
courts in each case would be required to weigh the
strength of the audience's interest against that of the Government
in refusing a waiver to the particular alien applicant,
according to some as yet undetermined standard.
The dangers and the undesirability of making that determination
on the basis of factors such as the size of the
audience or the probity of the speaker's ideas are obvious.
Indeed, it is for precisely this reason that the waiver decision
has, properly, been placed in the hands of the
Executive.
Appellees seek to soften the impact of this analysis by
arguing, as has been noted, that the First Amendment
claim should prevail, at least where no justification is advanced
for denial of a waiver. Brief for Appellees 26.
The Government would have us reach this question,
urging a broad decision that Congress has delegated the
waiver decision to the Executive in its sole and unfettered
discretion, and any reason or no reason may be
given. See Jay v. Boyd, 351 U.S. 345, 357-358 (1956);
Hintopoulos v. Shaughnessy, 353 U. S. 72, 77 ( 1957) ;
Kimm v. Rosenberg, 363 U. S. 405, 408 (1960). This
record, however, does not require that we do so, for the
Attorney General did inform Mandel's counsel of the
reason for refusing him a waiver. And that reason was
facially legitimate and bona fide.
The Government has chosen not to rely on the letter
to counsel either in the District Court or here. The fact
remains, however, that the official empowered to make
the decision stated that he denied a waiver because he
concluded that previous abuses by Mandel made it inappropriate
to grant a waiver again. With this, we think
the Attorney General validly exercised the plenary power
that Congress delegated to the Executive by §§ 212 (a)
(28) and ( d) (3).
In summary, plenary congressional power to make
policies and rules for exclusion of aliens has long been
770 OCTOBER TERM, 1971
DoUGLAs, J ., dissenting 408U.S.
firmly established. In the case of an alien excludable
under § 212 (a) (28), Congress has delegated conditional
exercise of this power to the Executive. We hold that
when the Executive exercises this power negatively on
the basis of a facially legitimate and bona fide reason, the
courts will neither look behind the exercise of that discretion,
nor test it by balancing its justification against
the First Amendment interests of those who seek personal
communication with the applicant. What First Amendment
or other grounds may be available for attacking
exercise of discretion for which no justification whatsoever
is advanced is a question we neither address nor
decide in this case.
Reversed.
MR. JUSTICE DouGLAS, dissenting.
Under The Chinese Exclusion Case, 130 U. S. 581,
rendered in 1889, there could be no doubt but that Congress
would have the power to exclude any class of
aliens from these shores. The accent at the time was
on race. Mr. Justice Field, writing for the Court, said:
"If, therefore, the government of the United States,
through its legislative department, considers the presence
of foreigners of a different race in this country, who will
not assimilate with us, to be dangerous to its peace and
security, their exclusion is not to be stayed because at
the time there are no actual hostilities with the nation
of which the foreigners are subjects." Id., at 606.
An ideological test, not a racial one, is used here. But
neither, in my view, is permissible, as I have indicated
on other occasions.1 Yet a narrower question is raised
here. Under the present Act aliens who advocate or
teach "the economic, international, and governmental
doctrines of world communism" are ineligible to receive
1 See Harisiades v. Shaughnessy, 342 U. 8. 580, 598 (dissenting
opinion); Galvan v. Press, 347 U. S. 522, 533 (dissenting opinion).
KLEINDIENST v. MANDEL 771
753 DOUGLAS, J., dissenting
visas "[e]xcept as otherwise provided in this Act." 2
The "except" provision is contained in another part of
the same section 3 and states that an inadmissible alien
"may, after approval by the Attorney General of a
recommendation by the Secretary of State or by the
consular officer" be admitted "temporarily despite his
inadmissibility.''
Dr. Ernest Mandel, who is described as "an orthodox
Marxist of the Trotskyist school," has been admitted to
this country twice before-once as a working journalist
in 1962 and once as a lecturer in 1968. The present case
involves his third application, made in 1969, to attend
a conference at Stanford University on Technology and
the Third World. He was also invited to attend other
conferences, one at MIT, and to address several universities,
Princeton, Amherst, the New School, Columbia,
and Vassar. This time the Department of Justice refused
to grant a waiver recommended by the State Department;
and it claims that it need not state its reasons,
that the power of the Attorney General is unfettered.
Dr. Mandel is not the sole complainant. Joining him
are the other appellees who represent the various audiences
which Dr. Mandel would be meeting were a visa
to issue. While Dr. Mandel, an alien who seeks admission,
has no First Amendment rights while outside the
Nation, the other appellees are on a different footing.
The First Amendment involves not only the right to
speak and publish but also the right to hear, to learn,
to know. Martin v. City of Struthers, 319 U.S. 141, 143;
Stanley v. Georgia, 394 U. S. 557, 564.
Can the Attorney General under the broad discretion
entrusted in him decide
2 §212 (a)(28)(G)(v) of the Immigration and Nationality Act
of 1952, 66 Stat. 185, 8 U.S. C.§ 1182 (a)(28)(G)(v).
3 § 212 (d) (3) (A), 8 U. S. C. § 1182 (d)(3) (A).
772 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 408U.S.
that one who maintains that the earth is round can
be excluded?
that no one who believes in the Darwinian theory shall
be admitted?
that those who promote a Rule of Law to settle international
differences rather than a Rule of Force may be
barred?
that a genetic biologist who lectures on the way to
create life by one sex alone is beyond the pale?
that an exponent of plate tectonics can be barred? 1
that one should be excluded who taught that Jesus
when he arose from the Sepulcher, went east (not up)
and became a teacher at Hemis Monastery in the
Himalayas?
I put the issue that bluntly because national security
is not involved. Nor is the infiltration of saboteurs.
The Attorney General stands astride our international
terminals that bring people here to bar those whose
ideas are not acceptable to him. Even assuming,
arguendo, that those on the outside seeking admission
have no standing to complain, those who hope to benefit
from the traveler's lectures do.
Thought control is not within the competence of any
branch of government. Those who live here may need
exposure to the ideas of people of many faiths and many
creeds to further their education. We should construe
the Act generously by that First Amendment standard,
saying that once the State Department has concluded
that our foreign relations permit or require the admission
of a foreign traveler, the Attorney General is left only
problems of national security, importation of heroin, or
other like matters within his competence.
We should assume that where propagation of ideas
is permissible as being within our constitutional framework,
the Congress did not undertake to make the
Attorney General a censor. For as stated by Justice
KLEINDIENST v. MANDEL 773
753 DOUGLAS, J., dissenting
Jackson in Thomas v. Collins, 323 U. S. 516, 545 ( concurring),
"[t]he very purpose of the First Amendment is
to foreclose public authority from assuming a guardianship
of the public mind through regulating the press,
speech, and religion. In this field every person must
be his own watchman for truth, because the forefathers
did not trust any government to separate the true from
the false for us."
In Brandenburg v. Ohio, 395 U. S. 444 (which overruled
Whitney v. Cali! ornia, 274 U. S. 357), we held
that the First Amendment does not permit a State "to
forbid or proscribe advocacy of the use of force or of
law violation except where such advocacy is directed
to inciting or producing imminent lawless action and is
likely to incite or produce such action." Id., at 447.
That case involved propagation of the views of the Ku
Klux Klan. The present case involves teaching the
communist creed.4 But, as we held in Noto v. United
States, 367 U. S. 290, 297-298:
"[T]he mere abstract teaching of Communist
theory, including the teaching of the moral pro-
4 The Court recognizes the legitimacy of appellees' First Amendment
claim, ante, at 762-765. It argues, however, that inasmuch
as the Attorney General gave a "facially legitimate and bona fide"
reason to refuse Dr. Mandel a waiver of ineligibility, the Court should
not "look behind the exercise of that discretion, nor test it by balancing
its justification against [appellees'] First Amendment interests
.... " First, so far as the record reveals, there is absolutely no
support for the Attorney General's claim that Dr. Mandel consciously
abused his visa privileges in 1968. Indeed, the State Department itself
concedes that he "was apparently not informed [in 1962 and
1968] that a visa wa.s issued only after obtaining a waiver of ineligibility
and therefore may not have been =are of the conditions and
limitations attached to the visa issuance." (Emphasis supplied.)
App. 22. Second, the activities which the Attorney General labeled
"flagrant abuses" of Dr. Mandel's opportunity to speak in the United
States appear merely to have been his speaking at more universities
than his visa application indicated. Indeed, he spoke at more than
774 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 U.S.
priety or even moral necessity for a resort to force
and violence, is not the same as preparing a group
for violent action and steeling it to such action."
As a matter of statutory construction, I conclude
that Congress never undertook to entrust the Attorney
General with the discretion to pick and choose among
the ideological offerings which alien lecturers tender from
our platforms, allowing those palatable to him and disallowing
others.5 The discretion entrusted to him concerns
matters commonly within the competence of the
Department of Justice---national security, importatio11
of drugs, and the like.
I would affirm the judgment of the three-judge District
Court.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE
BRENNAN joins, dissenting.
Dr. Ernest Mandel, a citizen of Belgium, is an internationally
famous Marxist scholar and journalist. He
was invited to our country by a group of American
scholars who wished to meet him for discussion and
debate. With firm plans for conferences, colloquia and
lectures, the American hosts were stunned to learn that
Mandel had been refused permission to enter our country.
American consular officials had found Mandel "in-
30 universities in the United States and Canada, including Harvard,
the University of California at Berkeley, Swarthmore, Notre Dame,
Antioch, Michigan, three appearances at Columbia, two at the University
of Pennsylvania, and the keynote address at the 1968 Socialist
Scholars Conference held at Rutgers. App. 25. It would be
difficult to invent a more trivial reason for denying the academic
~omrnunit.y the chance to exchange views with an internationally
respected scholar.
5 As indicated in S. Rep. No. 1137, 82d Cong., 2d Sess., 12, the
discretion vested in the Attorney General was to be exercised "for
emergent reasons or for reasons deemed strictly in the public interest."
Ideological controls are not congenial to our First Amendent traditions
and therefore should not be inferred.
KLEINDIENST v. MANDEL 775
753 MARSHALL, J., dissenting
eligible" to receive a visa under §§ 212 (a)(28)(D) and
(G)(v) of the Immigration and Nationality Act of 1952,
66 Stat. 185, which bars even temporary visits to the
United States by aliens who "advocate the economic,
international, and governmental doctrines of world communism"
or "who write or publish ... any written or
printed matter ... advocating or teaching" such doctrines.
Under § 212 ( d) (3), the Attorney General refused
to waive inadmissibility.
I, too, am stunned to learn that a country with our
proud heritage has refused Dr. Mandel temporary adm1ss10n.
I am convinced that Americans cannot be
denied the opportunity to hear Dr. Mandel's views in
person because their Government disapproves of his
ideas. Therefore, I dissent from today's decision and
would affirm the judgment of the court below.
I
As the majority correctly demonstrates, in a variety of
contexts this Court has held that the First Amendment
protects the right to receive information and ideas,
the freedom to hear as well as the freedom to speak.
The reason for this is that the First Amendment protects
a process, in Justice Brandeis' words, "reason as
applied through public discussion," Whitney v. California,
274 U.S. 357, 375 (1927) (concurring opinion); and
the right to speak and hear-including the right to inform
others and to be informed about public issues-are
inextricably part of that process. The freedom to speak
and the freedom to hear are inseparable; they are two
sides of the same coin. But the coin itself is the process
of thought and discussion. The activity of speakers becoming
listeners and listeners becoming speakers in the
vital interchange of thought is the "means indispensable
to the discovery and spread of political truth." Ibid.;
see Terminiello v. Chicago, 337 U. S. 1, 4 (1949) . Its
776 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 U.S.
protection is "a fundamental principle of the American
government." Whitney v. California, supra, at 375.
The First Amendment means that Government has no
power to thwart the process of free discussion, to
"abridge" the freedoms necessary to make that process
work. See Lamont v. Postm~ter General, 381 U. S.
301, 308 (1965) (BRENNAN, J., concurring, with whom
Goldberg and Harlan, JJ., joined).
There can be no doubt that by denying the American
appellees access to Dr. Mandel, the Government has directly
prevented the free interchange of ideas guaranteed
by the First Amendment.1 It has, of course, interfered
with appellees' personal rights both to hear Mandel's
views and to develop and articulate their own views
through interaction with Mandel. But as the court
below recognized, apart from appellees' interests, there
is also a "general public interest in the prevention of
any stifling of political utterance." 325 F. Supp. 620,
632 (1971). And the Government has interfered with
this as well.2
1 Twenty years ago, the Bulletin of the Atomic Scientists devoted
an entire issue to the problem of American visa policy and its effect
on the interchange of ideas between American scholars and scientists
and their foreign counterparts. The general conclusion of the
editore--supported by printed statements of such men as Albert
Einstein, Ha.ns Bethe, Harold Urey, Arthur Compton, Michael
Polanyi, and Raymond Aron-was that American visa policy was
hurting the continuing advance of American science and learning,
and harmful to our prestige abroa<l. Vol. 8, No. 7, Oct. 1952,
pp. 210-217 (statement of Special Editor Edward Shils). The
detrimental effect of American visa policy on the free exchange of
ideas continues to be reported. See Comment, Opening the Floodgates
to Dissident Aliens, 6 Harv. Civ. Rights-Civ. Lib. L. Rev.
141, 143-149 ( 1970); 11 Bulletin of the Atomic Scientists, Dec. 1955,
pp. 367-373.
2 The availability to appellees of Mandel's books and taped lectures
is no substitute for live, face-to-face discussion and debate, just
KLEINDIENST v. MANDEL 777
753 MARSHALL, J., dissenting
II
What is the justification for this extraordinary governmental
interference with the liberty of American citizens?
And by what reasoning does the Court uphold
Mandel's exclusion? It is established constitutional doctrine,
after all, that government may restrict First
Amendment rights only if the restriction is necessary
to further a compelling governmental interest. E. g.,
Lamont v. Postmaster General, supra, at 308; NAACP
v. Button, 371 U. S. 415, 438 ( 1963); Gibson v. Florida
Leg-islative Investigation Committee, 372 U. S. 539, 546
(1963); Shelton v. Tucker, 364 U. S. 479 (1960).
A. Today's majority apparently holds that Mandel
may be excluded and Americans' First Amendment rights
restricted because the Attorney General has given a
"facially legitimate and bona fide reason" for refusing
to waive Mandel's visa ineligibility. I do not understand
the source of this unusual standard. Merely "legitimate"
governmental interests cannot override constitutional
rights. Moreover, the majority demands only
"facial" legitimacy and good faith, by which it means
that this Court will never "look behind" any reason
the Attorney General gives. No citation is given for
this kind of unprecedented deference to the Executive,
as the availability to us of briefs and exhibits does not supplant the
essential place of oral argument in this Court's work. Lengthy
citations for this proposition, which the majority apparently concedes,
are unnecessary. I simply note that in a letter to Henrik
Lorenz, accepting an invitation to lecture at the University of
Leiden and to discuss "the radiation problem," Albert Einstein
observed that "[i]n these unfinished things, people understand one
another with difficulty unless talking face to face." Quoted in
Developments in the Law-The National Security Interest and Civil
Liberties, 85 Harv. L. Rev. 1130, 1154 (1972).
778 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 U.S.
nor can I imagine (nor am I told) the slightest justification
for such a rule.3
Even the briefest peek behind the Attorney General's
reason for refusing a waiver in this case would reveal
that it is a sham. The Attorney General informed appel1ees'
counsel that the waiver was refused because
Mandel's activities on a previous American visit "went
far beyond the stated purposes of his trip ... and represented
a flagrant abuse of the opportunities afforded him
to express his views in this country." App. 68. But,
as the Department of State had already conceded to
appellees' counsel, Dr. Mandel "was apparently not informed
that [his previous] visa was issued only after
obtaining a waiver of ineligibility and therefore [Mandel]
may not have been aware of the conditions and limitations
attached to the [previous] visa issuance." App.
22. There is no basis in the present record for concluding
that Mandel's behavior on his previous visit was
a "flagrant abuse"-or even willful or knowing departure-
from visa restrictions. For good reason, the Government
in this litigation has never relied on the Attorney
General's reason to justify Mandel's exclusion. In these
circumstances, the Attorney General's reason cannot possibly
support a decision for the Government in this case.
But without even remanding for a factual hearing to
see if there is any support for the Attorney General's
determination, the maj_ority declares that his reason is
sufficient to override appellees' First Amendment
interests.
B. Even if the Attorney General had given a corn-
3 As Judge Frankel has taught us, even the limited requirement
of facially sufficient reasons for governmental action may be significant
in some contexts; but it can hardly insulate the government
from subsequent challenges to the actual good faith and sufficiency
of the reasons. Frankel, Bench Warrants Upon the Prosecutor's
Demand: A View From the Bench, 71 Col. L. Rev. 403,414 (1971).
KLEINDIENST v. MANDEL 779
753 MARSHALL, J., dissenting
pelling reason for declining to grant a waiver under
§ 212 (d)(3)(A), this would not, for me, end the case.
As I understand the statutory scheme, Mandel is "ineligible"
for a visa, and therefore inadmissible, solely because,
within the terms of§ 212 (a) (28), he has advocated
communist doctrine and has published writings advocating
that doctrine. The waiver question under § 212 (d)
(3) (A) is totally secondary and dependent, since it is
triggered here only by a determination of (a)(28) ineligibility.
The Attorney General's refusal to grant a waiver
does not itself generate a new statutory basis for exclusion;
he has no roving power to set new ad hoe standards for
visa ineligibility. Rather, the Attorney General's refusal
to waive ineligibility simply has the same effect
as if no waiver provision existed; inadmissibility still
rests on the (a) (28) determination. Thus, whether or
not the Attorney General had a good reason for refusing
a waiver, this Court, I think, must still face the question
it tries to avoid: under our Constitution, may Mandel
be declared ineligible under (a) (28)?
C. Accordingly, I turn to consider the constitutionality
of the sole justification given by the Government here
and below for excluding Mandel-that he "advocates
and "publish[es] ... printed matter ... advocating ...
doctrines of world communism" within the terms of
§ 212 (a)(28).
Still adhering to standard First Amendment doctrine,
I do not see how (a) (28) can possibly represent a compelling
governmental interest that overrides appellees' interests
in hearing Mandel.4 Unlike (a) (27) or (a) (29),
• The majorit.y suggests that appellees "concede that Congress
could enact a blanket prohibition against entry of all aliens falling
into the class defined by §§ 212 (a) (28) (D) and (G)(v) and that
First Amendment rights could not override that decision." This was
certainly not the view of the court below, whose judgment the
appellants alone have challenged here and appellees have moved to
780 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 U.S.
(a)(28) does not claim to exclude aliens who are likely
to engage in subversive activity or who represent an active
and present threat to the "welfare, safety, or security
of the United States." Rather, (a)(28) excludes aliens
solely because they have advocated communist doctrine.
Our cases make clear, however, that government has no
legitimate interest in stopping the flow of ideas. It has
no power to restrict the mere advocacy of communist
doctrine, divorced from incitement to imminent lawless
action. Noto v. United States, 367 U. S. 290, 297-298
(1961); Brandenburg v. Ohio, 395 U. S. 444, 447-449
(1969). For those who are not sure that they have attained
the final and absolute truth, all ideas, even those
forcefully urged, are a contribution to the ongoing political
dialogue. The First Amendment represents the view
of the Framers that "the path of safety lies in the opportunity
to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsels
is good ones"-"more speech." Whitney v. California,
274 U. S., at 375, 377 (Brandeis, J., concurring).
If Americans want to hear about Marxist doctrine,
even from advocates, government cannot intervene
simply because it does not approve of the ideas. It
certainly may not selectively pick and choose which
ideas it will let into the country. But, as the
court below put it, § 212 (a) (28) is nothing more than
"a means of restraining the entry of disfavored political
doctrine," 325 F. Supp., at 626, and such an enactment
cannot justify the abridgment of appellees' First Amendment
rights.
affirm. It is true that appellees have argued to this Court a
ground of decision alternative to that argued and adopted below;
but they have hardly conceded the incorrectness of what. they successfully
argued below. They have simply noted, at 16-17 of their
brief, that even if this Court rejects the broad decision below, there
would neverthele.ss be a separate and narrower basis for affirmance.
See Tr. of Oral Arg. 24, 25-26, 41-42.
KLEINDIENST v. MANDEL 781
753 MARSHALL, J., dissenting
In saying these things, I am merely repeating established
First Amendment law. Indeed, this Court has
already applied that law in a case concerning the entry
of communist doctrine from foreign lands. In Lamont
v. Post~ter General, 381 U. S. 301 (1965), this Court
held that the right of an American addresree to receive
communist political propaganda from abroad could not
be fettered by requiring the addressee to request in
writing its delivery from the Post Office. See id., at
308 (BRENNAN, J., concurring). The burden imposed
on the right to receive information in our case is far
greater than in Lamont, with far less justification. In
Lamont, the challenged law merely regulated the flow
of mail, and required the Postmaster General to forward
detained mail immediately upon request by the addressee.
By contrast, through § 212 (a)(28), the Government
claims absolute power to bar Mandel permanently
from academic meetings in this country.
Moreover, in Lamont, the Government argued that its
interest was not to censor content but rather to protect
Americans from receiving unwanted mail. Here,
Mandel's exclusion is not incident to a legitimate regulatory
objective, but is based directly on the subject
matter of his beliefs.
D. The heart of appellants' position in this case,
and the basis for their distinguishing Lamont, is that the
Government's power is distinctively broad and unreviewable
because " [ tJhe regulation in question is directed at
the admission of aliens." Brief for Appellants 33. Thus,
in the appellants' view, this case is no different from a
long line of cases holding that the power to exclude aliens
is left exclusively to the "political" branches of Government,
Congress, and the Executive.
These cases are not the strongest precedents in the
United States Reports, and the majority's baroque approach
reveals its reluctance to rely on them completely.
782 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 U.S.
They include such milestones as The Chinese Exclusion
Case, 130 U.S. 581 (1889), and Fong Yue Ting v. United
States, 149 U. S. 698 (1893), in which this Court upheld
the Government's power to exclude and expel Chinese
aliens from our midst.
But none of these old cases must be "reconsidered"
or overruled to strike down Dr. Mandel's exclusion, for
none of them was concerned with the rights of American
citizens. All of them involved only rights of the excluded
aliens themselves. At least when the rights of
Americans are involved, there is no basis for concluding
that the power to exclude aliens is absolute. "When
Congress' exercise of one of its enumerated powers clashes
with those individual liberties protected by the Bill of
Rights, it is our 'delicate and difficult task' to determine
whether the resulting restriction on freedom can be tolerated."
United States v. Robel, 389 U.S. 258,264 (1967).
As Robel and many other cases~ show, all governmental
5 In United States v. Robel, 389 U. S. 258 (1967), this Court
struck down a statute making it a criminal offense for any employee
of a "defense facility" to remain a member of the Communist
Party, in spite of Government claims that the enactment
came within the "war power." In Aptheker v. Secretary of State,
378 U. S. 500 (1964), the Government unsuccessfully sought to
defend the denial of passports to American members of the Communist
Party, in spite of claimed threats to the national security.
In Zemel v. Rusk, 381 U. S. 1 (1965), the passport restriction
on travel to Cuba was upheld because individual constitutional
rights were overridden by the "weightiest considerations of national
security"; but the Court rejected any assumption "that
simply because a statute deals with foreign relations, it can
grant the Executive totally unrestricted freedom of choice."
Id., at 16, 17. In Schneider v. RWJk, 377 U. S. 163 (1964),
the Government unsuccessfully attempted to justify a statutory
inequality between naturalized and native-born citizens under the
foreign relations power. And in Lamont v. Postmaster General, 381
U.S. 301 (1965), itself, as MR. JusTICE BRENNAN noted, the Government
urged that the statute was "justified by the object of a,·oiding
KLEINDIENST v. MANDEL 783
753 MARSHALL, J., dissenting
power-even the war power, the power to maintain
national security, or the power to conduct foreign affairs-
is limited by the Bill of Rights. When individual
freedoms of Americans are at stake, we do not blindly
defer to broad claims of the Legislative Branch or Executive
Branch, but rather we consider those claims in light
of the individual freedoms. This should be our approach
in the present case, even though the Government urges
that the question of admitting aliens may involve foreign
relations and national defense policies.
The majority recognizes that the right of American
citizens to hear Mandel is "implicated" in our case.
There were no rights of Americans involved in any of
the old alien exclusion cases, and therefore their broad
counsel about deference to the political branches is inapplicable.
Surely a Court that can distinguish between
pre,indictment and post-indictment lineups, Kirby
v. Illinois, 406 U. S. 682 (1972), can distinguish between
our case and cases which involve only the rights of aliens.
I do not mean to suggest that simply because some
Americans wish to hear an alien speak, they can automatically
compel even his temporary admission to our
country. Government may prohibit aliens from even
temporary admission if exclusion is necessary to protect
a compelling governmental interest.6 Actual threats to
the national security, public health needs, and genuine
requirements of law enforcement are the most apparent
the subsidization of propaganda of foreign governments which bar
American propaganda"; MR. Jus~•rcE BRENNAN answered that the
Government must act "by means and on terms which do not endanger
First Amendment rights." Id., at 310.
"I agree with the majority that courts should not inquire into such
things as the "probity of the speaker's ideas." Neither should the
Executive, however. Where Americans wish to hear an alien, and
their claim is not a demonstrated sham, the crucial question is
whether the Government's interest in excluding the alien is
compelling.
784 OCTOBER TERM, 1971
MARSHALL, J., dissenting 408 U.S.
interests that would surely be compelling.7 But in
Dr. Mandel's case, the Government has, and claims, no
such compelling interest. Mandel's visit was to be temporary
.8 His "ineligibility" for a visa was based solely
on §212(a)(28). The only governmental interest embodied
in that section is the Government's desire to keep
certain ideas out of circulation in this country. This
is hardly a compelling governmental interest. Section
(a)(28) may not be the basis for excluding an alien
when Americans wish to hear him. Without any claim
that Mandel "live" is an actual threat to this country,
there is no difference between excluding Mandel because
of his ideas and keeping his books out because of their
ideas. Neither 1s permitted. Lamont v. Postmaster
General, supra.
III
Dr. Mandel has written about his exclusion, concluding
that " [ i] t demonstrates a lack of confidence" on the part
of our Government "in the capacity of its supporters to
combat Marxism on the battleground of ideas." He observes
that he "would not be carrying any high explosives,
if I had come, but only, as I did before, my revolutionary
views which are well known to the public." And he
wryly notes that "[i]n the nineteenth century the British
ruling class, which was sure of itself, permitted Karl
Marx to live as an exile in England for almost forty
years." App. 54.
It is undisputed that Dr. Mandel's brief trip would
involve nothing but a series of scholarly conferences
and lectures. The progress of knowledge is an inter-
• It goes without saying, of course, that, once he has been admitted,
any alien (like any citizen) can be punished if he incites lawless
acts or commits other crimes.
8 Such "nonimmigrants" are not covered by quotas. C. Gordon
& H. Rosenfield, Immigration Law and Procedure § 2.6 (1971).
KLEINDIENST v. MANDEL 785
753 MARSHALL, J., dissenting
national venture. As Mandel's invitation demonstrates,
individuals of differing world views have learned the
ways of cooperation where governments have thus far
failed. Nothing is served-least of all our standing in
the international community-by Mandel's exclusion.
In blocking his admission, the Government has departed
from the basic traditions of our country, its fearless acceptance
of free discussion. By now deferring to the Executive,
this Court departs from its own best role as the
guardian of individual liberty in the face of governmental
overreaching. Principles of judicial restraint designed to
allow the political branches to protect national security
have no place in this case. Dr. Mandel should be permitted
to make his brief visit.
I dissent.
786 OCTOBER TERM, 1971
Syllabus
MOORE v. ILLINOIS
408U.S.
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
No. 69-5001. Argued January 18, 1972-Decided June 29, 1972
Moore, who was convicted of murder and sentenced to death for the
shotgun slaying of a bartender at a Lansing, Illinois, tavern, claimed
that he was denied a fair trial and due process because the State
failed to make pretrial disclosure of several items of evidence
helpful to the defense, failed to correct false testimony of one
Powell, and succeeded in introducing into evidence a shotgun
that was not the murder weapon. The evidence not disclosed
consisted of a pretrial statement by one Sanders that Moore was
known to him as "Slick" and that he had first met "Slick" some
six months before the killing, and documents and testimony
that established that Moore was not the man known to others
in the area as "Slick." Powell testified that he observed the
killing, and the State did not introduce into evidence a diagram
that, Moore claims, illustrates that Powell could not see the shooting.
The State Supreme Court rejected the claim that evidence had
been suppressed and false evidence had been left uncorrected, and
held that the shotgun was properly admitted into evidence as a
weapon in Moore's possession when he was arrested and suitable
for commission of the crime charged. Moore also attacked the
imposition of the death penalty for noncompliance with the standards
of Witherspoon v. Illinois, 391 U. S. 510. Held:
1. The evidentiary items (other than the diagram) on which
Moore bases his suppression claim relate to Sanders' misidentification
of Moore as "Slick" and not to the identification, by Sanders
and others, of Moore as the person who made incriminating
statements in the Ponderosa Tap. These evidentiary items are
not material under the standard of Brady v. Maryland, 373 U. S.
83. The diagram does not support Moore's contention that the
State knowingly permitted false testimony to remain uncorrected,
in violation of Napue v. Illinois, 360 U. S. 264, since the diagram
does not show that it was impossible for Powell to see the shooting.
Pp. 794-798.
2. Moore's due process claim as to the shotgun was not previously
raised and therefore is not properly before this Court, and in
any event the introduction of the shotgun does not constitute
federally reversible error. Pp. 798-800.
MOORE v. ILLINOIS 787
78/l Opinion of the Court
3. The sentence of death may not be imposed on Moore. Furman
v. Georgia, ante, p. 238. P. 800.
42 Ill. 2d 73, 246 N. E. 2d 299, reversed in part and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C. J., and BRENNAN, WHITE, and REHNQUIST, JJ., joined.
MARSHALL, J., filed an opinion concurring in part and dissenting
in part, in which DouaLAs, STEWART, and PowELL, JJ., joined, post,
p. 800.
James J. Doherty argued the cause for petitioner.
With him on the briefs was Gerald W. Getty.
Thomas J. Immel, Assistant Attorney General of Illinois,
argued the cause for respondent. With him on the
brief were William J. Scott, Attorney General, Joel M.
Flaum, First Assistant Attorney General, and James B.
Zagel and Jayne A. Carr, Assistant Attorneys General.
Briefs of amici curiae urging reversal were filed by
Elmer Gertz and Willard J. Lassers for the American
Civil Liberties Union, Illinois Division, et al., and by
Jack Greenberg, James M. ,Vabrit III, Jack Hirnmelstein,
and Anthony G. Amsterdam for the NAACP Legal Defense
and Educational Fund, Inc., et al.
MR. JuSTICE BLACKMUN delivered the opinion of the
Court.
This state murder case, with the death penalty imposed
by a jury, comes here from the Supreme Court
of Illinois. The grant of certiorari, 403 U. S. 953 ( 1971),
was limited to three of four questions presented by the
petition. These concern the nondisclosure to the defense
of allegedly exculpatory evidence posses.5ed by the
prosecution or the police; the admission into evidence of
a shotgun that was not the murder weapon; and the
rejection of eight veniremen who had voiced general
objections to capital punishment. The first and third
issues respectively focus on the application of Brady v.
788 OCTOBER TERM, 1971
Opinion of the Court 408 lT. s.
Maryland, 373 U. S. 83 (1963), and Witherspoon v.
Illinoi.s, 391 U. S. 510 (1968).
I
Petitioner Lyman A. Moore was convicted in 1964
of the first-degree murder of Bernard Zitek. Moore's
appeal to the Supreme Court of Illinois was held in
abeyance while he petitioned the trial court for postconviction
relief. After a hearing in January 1967, that
petition was denied. Moore's appeal from the denial was
consolidated with his appeal from the conviction and
sentence. With one justice dissenting and another not
participating, the Illinois court affirmed the judgments.
42 Ill. 2d 73, 246 N. E. 2d 299 (1969).
II
The homicide was committed on April 25, 1962. The
facts are important:
A. The victim, Zitek, operated a bar-restaurant in
the village of Lansing, southeast of Chicago. Patricia
Hill was a waitress there. Donald O'Brien, Charles A.
Mayer, and Henley Powell were customers.
Another bar called the Ponderosa Tap was located
in Dolton, also southeast of Chicago. It was owned
by Robert Fair. William Joyce was the bartender. One
of Fair's customers was Virgle Sanders.
A third bar known as Wanda and Del's was in Chicago.
Delbert Jones was the operator. William Leon Thompson
WS8 a patron.
The Westmoreland Country Club was in Wilmette,
about 50 miles north of Lansing. The manager there
was Herbert Anderson.
B. On the evening of April 25 Zitek was tending bar
at his place in Lansing. Shortly before 10 p. m. two
men, one with a moustache, entered and ordered beer.
Zitek admonished the pair several times for using pro-
.
MOORE v. ILLINOIS 789
786 Opinion of the Court
fane language. They continued in their profanity and,
shortly, Zitek ejected them. About an hour later a
man carrying a shotgun entered. He laid the weapon
on the bar and shot and killed Zitek. The gunman ran
out, pursued by patrons, and escaped in an automobile.
C. At the trial waitress Hill positively identified Moore
as one of the two men ejected from the bar and as the
one who returned and killed Zitek. She testified that
she had a clear and close view from her working area
at the bar and that she observed Zitek's ejection of the
two men and the shotgun killing an hour later.
D. A second in-court identification of Moore as the
man who killed Zitek was made by the customer Powell.
Powell, who at the time was playing pinochle with others,
testified that he observed Moore enter the bar with a
shotgun and shoot Zitek; that after the shooting he
pursued Moore; and that outside the bar Moore stopped
momentarily, turned, and shouted, "Don't come any
further or I'll shoot you, too."
E. Sanders testified that on April 27, two days after
the murder, he was in the Ponderosa Tap and that a
customer there, whom Sanders identified as "Slick," remarked
to Sanders that it was "open season on bartenders"
and that he had shot one in Lansing. At the
trial Sanders identified Moore as the man who was in
the Ponderosa Tap on April 27. Moore was with another
man who had a moustache. The two asked for a ride
to Harvey, Illinois. The owner, Fair, agreed to give
them the ride.
F. Fair testified that Moore was one of the two men
who requested and were given the ride; that during
the journey one of them was referred to as "Barbee";
and that one said "something like, 'Well, if we hadn't
had that trouble with the bartender in Lansing, we'd
have been all right.' "
G. The Ponderosa bartender, Joyce, testified that San790
OCTOBER TERM, 1971
Opinion of tht Court 408U.S.
ders and Fair were in that tavern on April 27; that
Moore was there at the same time; and that he arranged
with Fair for Fair to give Moore and his companion
a ride.
It is thus apparent that there were positive in-court
identifications of Moore as the slayer by the waitress
Hill and by the customer Powell, and that there were
in-court identifications of Moore as having been present
at the bar in Dolton two days later by Sanders, by Fair,
and by Joyce.
H. Six months after the slaying, in the early morning
hours of October 31, 1962, a Chicago police officer was
shot at from a 1957 Ford automobile. Two men fled
the scene. The police "staked out" the car, and several
hours later Moore and a moustached man, later
identified as Jerry Barbee, were arrested when they
approached and entered the vehicle. The automobile
proved to be owned by Barbee. A fully loaded sawedoff
16-gauge shotgun was in the car.1 The shotgun
was introduced in evidence at Moore's trial.2 The State
conceded that the gun so introduced was not the murder
weapon, and that the State's ballistics technician, if
called, would testify that the waddings taken from Zitek's
body came, in his opinion, from a 12-gauge shotgun shell.
I. The clef ense called manager Anderson of the Westmoreland
Country Club as a witness. He testified that
Moore had been hired as a waiter there on April 24
(the day before the murder); that the club records indicated
there was a special party at the club on the
evening of April 25; and that Moore was paid for work-
1 This early morning incident was recounted in an earlier trial of
Moore and Barbee for an armed robbery at Harvey, Illinois, on
July 27, 1962. People v. 11'Ioore, 35 Ill. 2d 399, 401-402, 220 N. E.
2d 443, 444-445 (1966), cert. denied, 389 U. S. 861 ( 1967).
2 A revolver found at Moore's feet at the time of his arrest a.nd a
shoulder holster then on his person were ruled inadmissible.
MOORE v. ILLINOIS 791
786 Opinion of the Court
ing until sometime between 10 p. m. and midnight.
The club's bartender testified to the same effect. Each
of these witnesses nevertheless admitted that he could
not remember seeing Moore at the club that night, but
said that he would have known if he had been absent
for any substantial period of time. The club records
also indicated that Moore worked at the club the afternoon
of April 27, when, according to the testimony of
Sanders, Fair, and Joyce, Moore was at the Ponderosa
Tap in Dolton.3
J. O'Brien, a customer at Zitek's, testified for the
defense that he observed Zitek eject two men the evening
of the 25th, and that Moore was not one of them. Although
he was in the restaurant at the time of the homicide,
he did not see the person who shot Zitek. A police
officer testified that in his opinion O'Brien was drunk
at the time.
III
Prior to the trial, the defense moved for disclosure of
all written statements taken by the police from any
witness. The State agreed to furnish existing statements
of prosecution witnesses. At the post-conviction hearing,
Moore argued, and the claim is presented here, that
he was denied a fair trial because six items of evidence,
unknown to him at the time of the trial, were not produced
and, in fact, were suppressed by the State:
A. On April 30, 1962, Sanders gave a statement to
the police that he had met the man "Slick" for the first
time "about six months ago" in Wanda and Del's tavern.
Testimony at the post-conviction hearing by Lieutenant
Turbin of the Lansing Police Department revealed that
at the time of trial the police possessed an FBI report
3 A like alibi defense was submitted at the earlier armed robbery
trial of Moore and Barbee. People v. Moore, 35 Ill. 2d, at 406, 220
N. E. 2d, at 447.
792 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
that Moore was in Leavenworth Penitentiary from 1957
to March 4, 1962. That report thus proved that Sanders
could not have met Moore at Wanda and Del's
in November 1961. The defense was not given a copy
of the statement made by Sanders. The prosecuting attorney
asserted at the post-conviction hearing that he
did not recall having seen the statement before or during
the trial.
B. On the day Sanders gave his statement, that is,
on April 30, the police raided Wanda and Del's looking
for "Slick." "Slick" was not there, but Jones, the tavern's
operat.or, said that he could identify "Slick." After
Moore was arrested, Jones was not asked by the police
whether Moore was "Slick." The defense was not advised
of the raid until after the trial. At the postconviction
hearing Jones testified that Moore was not
"Slick." His testimony, however, was stricken on the
ground that it pertained t.o innocence or guilt and was
not admissible upon collateral review.
C. After the raid on Wanda and Del's, the police
secured from their files a picture of James E. "Slick"
Watts and assigned Lieutenant Turbin the task of finding
Watts. His search was unsuccessful. Moore asserts
that the attempt to find Watts was not made known
to the defense until cross-examination of the Lansing
police chief at the post-conviction hearing.
D. After Moore was arrested on October 31, he was
photographed by the police. The photograph wa.s shown
t.o William Leon Thompson, the patron of Wanda and
Del's. Thompson testified at the post-conviction hearing
that he told Lieutenant Turbin that the picture
"didn't, to the best of my knowledge, resemble the man
that I knew" as "Slick." He identified a picture of
Watts a.s "the Slick I know." Defense counsel testified
that through the course of the trial neither the police
MOORE v. ILLINOIS 793
786 Opinion of the Court
nor the prosecutor advised them about Thompson and
his disclaimer.
E. At the start of the trial Sanders observed Moore
for the first time since the alleged bragging incident
at the Ponderosa Tap. Sanders remarked to the prosecuting
attorney and to police officers who accompanied
him into the courtroom that the person he knew as
"Slick" was about 30-40 pounds heavier than Moore
and did not wear glasses. One of the officers responded,
"Well, you know how the jailhouse beans are." Moore
contends that he and defense counsel were not advised
of this remark of Sanders until after the trial had
concluded.
F. Mayer, one of the card players at Zitek's at the
time of the murder, gave the police a written statement.
On the back of the statement Officer Koppitz drew a
sketch of the seating arrangement at the card table.
The diagram shows that the corners of the table pointed
north, south, east, and west. Cardplayer Powell was
placed on the southwest side. The bar was about 10
feet north of the table. The door was to the southwest.
Moore argues that the diagram is exculpatory and contradicts
Powell's testimony that he observed the shooting.
Defense counsel testified that they were not shown
the diagram during the trial.
Moore argues, as to the first five items, that the State
did not comply with the general request by the defense
for all written statements given by prosecution witnesses;
that the State failed to produce the pretrial
statement of Sanders and the other evidence contradicting
Sanders' identification of Moore as "Slick"; and
that the evidence not produced was material and would
have been helpful to his defense.
The Illinois court held that the State had not suppressed
material evidence favorable to Moore, that the
794 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
record shows that the prosecution presented its entire
file to defense counsel, and that no further request for
disclosure was made. 42 Ill. 2d, at 80--81, 246 N. E.
2d, at 304. Moore submits here the alternative claim
that a specific request is not an "indispensable prerequisite"
for the disclosure of exonerating evidence by
the State and that the defense could not be expected to
make a request for specific evidence that it did not know
was in existence.
In Brady v. Maryland, 373 U.S. 83 (1963), the petitioner
and a oompanion were found guilty by a jury
of first-degree murder and were sentenced to death. In
his summation to the jury, Brady's counsel conceded
that Brady was guilty, but argued that the jury should
return its verdict "without capital punishment." Prior
to the trial, counsel had requested that the prosecution
allow him to examine the codefendant's extra-judicial
statements. Some of these were produced, but another,
in which the codefendant admitted the actual homicide,
was withheld and did not come to Brady's notice
until after his conviction. In a post-conviction proceeding,
the Maryland Court of Appeals held that this denied
Brady due process of law, and remanded the case for
retrial on the issue of punishment. This Court affirmed.
It held "that the suppression by the prosecution of evidence
favorable to an accused upon request violates due
process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad
faith of the prosecution." 373 U. S., at 87.
The heart of the holding in Brady is the prosecution's
suppression of evidence, in the face of a defense production
request, where the evidence is favorable to the
accused and is material either to guilt or to punishment.
Important, then, are (a) suppression by the prosecution
after a request by the defense, (b) the evidence's favorMOORE
v. ILLINOIS 795
786 Opinion of the Court
able character for the defense, and ( c) the materiality
of the evidence. These are the standards by which the
prosecution's conduct in Moore's case is to be measured.
Moore's counsel asked several prosecution witnesses
if they had given statements to the police. Each witness
(Hill, Powell, Fair) who had given a statement
admitted doing so and the statement was immediately
tendered. The same inquiry was not made of witness
Sanders. He was the only state witness who was not
asked the question. At the post-conviction hearing the
inquiry was made. Sanders admitted making a statement
to the police and the statement was tendered.
The record discloses, as the Illinois court states, 42
Ill. 2d, at 80, 246 N. E. 2d, at 304, that the prosecutor
at the trial submitted his entire file to the defense. The
prosecutor, however, has no recollection that Sanders'
statement was in the file. The statement, therefore,
either was in that file and not noted by the clef ense
or it was not in the possession of the prosecution at the
trial.
We know of no constitutional requirement that the
prosecution make a complete and detailed accounting to
the defense of all police investigatory work on a case.
Here, the elusive "Slick" was an early lead the police
abandoned when eyewitnesses to the killing and witnesses
to Moore's presence at the Ponderosa were found.
Unquestionably, as the State now concedes,' Sanders
was in error when he indicated to the police that he met
Moore at Wanda and Del's about six months prior to
April 30, 1962. Moore's incarceration at Leavenworth
until March shows that conclusion to have been an
instance of mistaken identity. But the mistake was
as to the identification of Moore as "Slick," not as to
• Brief for R~spondent 4; Tr. of Oral Arg. 28.
796 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
the presence of Moore at the Ponderosa Tap on April 27.5
"Sanders' testimony to the effect that it was Moore he
spoke with at the Ponderosa Tap in itself is not significantly,
if at all, impeached. Indeed, it is buttressed
by the testimony of bartender Joyce and operator Fair,
both of whom elaborated the incident by their description
of the man, and by Moore's request for a ride to
Harvey, Illinois, Fair's providing that ride, and Fair's
hearing, on that trip, the reference to one of the men as
'Barbee,' " and a second reference to trouble with a bartender
in Lansing.
The other four of the first five items-that Jones told
police he could identify "Slick" and subsequently testified
that Moore was not "Slick"; that the police had a
picture of Watts and a~igned the lieutenant, unsuccessfully,
to find Watts; that Thompson had been shown a
picture of Moore and told the police that Moore was
not "Slick"; and that on the day of the trial Sanders remarked
that the man he knew as "Slick" looked heavier
than Moore-are in exactly the same category. They all
relate to "Slick," not Moore, and quite naturally go off
on Sanders' initial misidentification of "Slick" with
Moore.
None of the five items serves to impeach in any way
the positive identification by Hill and by Powell of
5 The dissent observes, post, at 804, "When confronted with this
fact [Moore's imprisonment at Leavenworth], Sanders indicated that
it was impossible that petitioner [Moore] was the man with whom
he had spoken in the Ponderosa Tavern." This is a misreading of
Sanders' testimony. The question and Sanders' answer were:
"Q. And did you tell me and also later on, did you tell the policeman
from the State's Attorney's Office that if you had known that
this fellow, Lyman Moore, was in the Federal Penitentiary until
March 4, 1962, you would definitely not ha.ve identified him as being
Slick that you knew?
"A. If he's in jail, it would have been impossible to be the same
man." Abstract of Record 296.
MOORE v. ILLINOIS 797
786 Opinion of the Court
Moore as Zitek's killer, or the testimony of Fair and
Joyce that Moore was at the Ponderosa Tap on April 27,
or the testimony of Fair that the moustached Barbee
was accompanying Moore at that time, and that one
of the two men made the additional and undisputed
admission on the ride to Harvey. We conclude, in the
light of all the evidence, that Sanders' misidentification
of Moore as Slick was not material to the issue of guilt.
The remaining claim of suppression relates to the diagram
on the back of Mayer's statement to the police.6
Moore contends that the diagram shows that Powell was
seated with his back to the entrance to Zitek's and, thus,
necessarily contradicts his testimony that he was looking
toward the entrance as he sat at the card table, and that
the State knowingly permitted false testimony to remain
uncorrected, in violation of Napue v. Illinoi,s, 360 U. S.
264 (1959).
In Napue the principal prosecution witness at Napue's
murder trial was an accomplice then serving a sentence
for the crime. He testified, in response to an inquiry by
the prosecutor, that he had received no promise of consideration
in return for his testimony. In fact, the prosecutor
had promised him consideration, but he did nothing
to correct the witness' false testimony. This Court held
that the failure of the prosecutor to correct the testimony,
which he knew to be false, denied Napue due process
of law, and that this was so even though the false testimony
went only to the credibility of the witness. See
6 Contrary to the assertion by the dissent that the Mayer statement,
with its accompanying diagram, was never Il'Ul.de avajlable to
the defense, post, at 803 and 809, the trial transcript indicates that
during the cross-examination of Officer Koppitz a request was made
by the defense for all written statements taken by the officer from
persons in Zitek's restaurant at the time of the shooting. The court
granted the request and the record recites that statements of Mayer
and others were furnished to defense counsel.
798 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
also Miller v. Pate, 386 U. S. 1 (1967), and Alcorta v.
Texas, 355 U. S. 28 (1957).
We are not persuaded that the diagram shows that
Powell's testimony was false. The officer who drew the
diagram testified at the post-conviction hearing that it
did not indicate the direction in which Powell was facing
or looking at the time of the shooting. Powell testified
that his position at the table gave him a view of the
bartender; that at the moment he could not bid in the
pinochle game and had laid his hand down and was
looking toward the door when Moore walked in. There
is nothing in the diagram to indicate that Powell was
looking in another direction or that it was impossible for
him to see the nearby door from his seat at the card table.
Furthermore, after the shooting he pursued Moore but
stopped when the man warned him that he, too, might
be shot.
In summary, the background presence of the elusive
"Slick/' while somewhat confusing, is at most an insignificant
factor. The attempt to identify Moore as "Slick"
encountered difficulty, but nothing served to destroy the
two-witness identification of Moore as Zitek's assailant,
the three-witness identification of Moore as present at
the Ponderosa Tap, the two-witness identification of
Moore as one of the men who requested and obtained a
ride from the Ponderosa in Dolton to Harvey, Illinois,
and Fair's testimony as to the admission made on
that ride.
We adhere to the principles of Brady and Napue, but
hold that the present record embraces no violation of
those principles.
IV
The 16-gauge shotgun was admitted into evidence at
the trial over the objection of the defense that it was not
the murder weapon, that it had no connection with the
crime charged, and that it was inadmissible under Illinois
MOORE v. ILLINOIS 799
786 Opinion of the Court
law.7 During his closing argument to the jury, the
prosecuting attorney stated that the 16-gauge shotgun
was not used to kill Zitek,8 but that Moore and his companion,
Barbee, were "the kind of people that use
shotguns." 9
The Supreme Court of Illinois held that the shotgun
was properly admitted into evidence as a weapon in
Moore's possession at the time of his arrest, and was a
weapon "suitable for the commission of the crime
charged . . . even though there is no showing that it
was the actual weapon used." 42 Ill. 2d, at 78, 246 N. E.
2d, at 303. Moore claims that the gun's introduction
denied him due process.
Of course, the issue whether the shotgun was properly
admitted into evidence under Illinois law is not subject
to review here. The due process claim, however, appears
to be raised for the first time before us. There is no
claim by Moore, and there is nothing in the record to
disclose, that due process was argued in the state courts.
We could conclude, therefore, that the issue is not one
properly presented for review.
In any event, we are unable to conclude that the
shotgun's introduction deprived Moore of the due process
of law guaranteed him by the Fourteenth Amendment.
The 16-gauge shotgun, found in the car, was in the constructive
possession of both Moore and Barbee when
they were arrested after the shooting incident on October
31. There is substantial other evidence in the record
7 Seen. 2.
8 Curiously, the State argues in this Court tha,t it is possible that
the 16-gauge shotgun was the murder weapon. Brief for Re~pondent
20-21.
9 Later in his closing argument the prosecuting attorney referred
to the 16-gauge shotgun and stated again that a 12-gauge shotgun
killed Zitek. He argued that a shotgun is not "the most humane
type weapon" and that the death penalty is appropriate in a case
in which a shotgun is used to murder a person.
800 OCTOBER TERM, 1971
Opinion of MARSHALL, J. 408 U.S.
that a shotgun was used to kill Zitek, and that he suffered
the wounds one would expect from a shotgun fired at close
range. The testimony as to the murder itself, with all
the details as to the shotgun wounds, is such that we
cannot say that the presentation of the shotgun was so
irrelevant or so inflammatory that Moore was denied a
fair trial. The case is not federally reversible on this
ground.
V
Inasmuch as the Court today has ruled that the imposition
of the death penalty under statutes such as those
of Illinois is violative of the Eighth and Fourteenth
Amendments, Furman v. Georgia, ante, p. 238, it is unnecessary
for us to consider the claim of noncompliance
with the Witherspoon standards. In Witherspoon, 391
U. S., at 523 inn. 21, the Court stated specifically "Nor,
finally, does today's holding render invalid the conviction,
as opposed to the sentence, in this or any other case"
(emphasis in original). The sentence of death, however,
may not now be imposed.
The judgment, insofar as it imposes the death sentence,
is reversed, Furman v. Georgia, supra, and the
case is remanded for further proceedings.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE
DouGLAS, MR. JusTICE STEWART, and MR. JUSTICE Pow-
ELL join, concurring in part and dissenting in part.
Petitioner was convicted of murder in the Illinois
state courts and sentenced to death. The Supreme Court
of Illinois affirmed the conviction and sentence by a
divided court. 42 Ill. 2d 73, 246 N. E. 2d 299 (1969).
This Court holds that the imposition of the death sentence
violated the principle established today in Furman
v. Georgia, ante, p. 238, and that the sentence must be
vacated, but the Court upholds the underlying conviction.
I agree with the majority that the sentence is invalid and
MOORE v. ILLINOIS 801
786 Opinion of MARSHALL, J.
join Part V of the opinion of the Court. I also agree that
the introduction of the shotgun into evidence at petitioner's
trial did not violate the Fourteenth Amendment.1
But, I believe that in failing to disclose to petitioner
certain evidence that might well have been of substantial
assistance to the defense, the State denied him a
fair trial.
The opinion of the Court relates at some length the
facts relating to the crime with which petitioner was
charged, the circumstances of his arrest, the course of the
trial, and the developments at the post-conviction hearing.
As these facts are complicated and quite confus-
' I find the constitutional question presented by the introduction
of this evidence to be much harder than the majority seems to. It
was uncontradicted at trial that the weapon introduced against
petitioner had no bearing on the crime with which he was charged.
It was, in fact, clear that the shotgun admitted into evidence was a
16-gauge gun, whereas the murder weapon was a 12-gauge gun.
Despite the fact that the prosecution conceded this in a pretrial
bill of particulars, it did everything possible to obfuscate the fact
that the weapon admitted into evidence was not the murder weapon.
This was highly improper. The record also indicates that the
trial judge was confused as to why he thought the weapon should
be admitted. At one point he said, "There was testimony here
that this was a shotgun killing. And I can see nothing wrong
if they say that this defendant, who will be identified by other
people, was apprehended with this gun." Abstract of Record (Abs.),
65. If the trial judge meant to imply that because the crime was
committed with a shotgun, it was sufficient to prove that the petitioner
possessed any shotgun, whether or not it was the murder
weapon, he surely erred. But it is impossible to tell from the
record in this case precisely what was intended, or whether the judge
confused the jury when he admitted the weapon. Although this
highly prejudicial and irrelevant evidence was introduced, and although
the prosecution did its best to lead the jury to believe that
there was a relationship between the murder weapon and the shotgun
in evidence, the fact that petitioner's counsel explained to the jury
that the two weapons were not identical is, on the very closest balance,
enough to warrant our finding that the jury was not improperly
misled as to the nature of the evidence before it.
802 OCTOBER TERM, 1971
Opinion of MARSHALL, J. 408U.S.
ing, I have not reiterated. them here. Rather, I have
emphasized those that seem to me to be particularly
important and I have added several details that are
omitted from the Court's opinion.
Two interrelated defenses were raised against the
charge of murder-alibi and misidentification. Petitioner's
theory of the case was that he was not at the
scene when the murder was committed and that those
witnesses who testified that they saw him there were
confusing him with someone else.
Only two witnesses affirmatively asserted at trial that
they saw the murder and that they could identify petitioner
as the a.ssailant. They were Patricia Hill, a
waitress in the victim's bar, and Henley Powell. a customer.
Aside from their testimony, the only other evidence
introduced against petitioner related to statements
that he allegedly made two days after the murder.
There is a problem with the eyewitness testimony of
Powell that did not become apparent until the postconviction
hearing in the trial court. At trial he testified
as follows:
"The defendant (indicating) came into the tavern
while I was at the table. I first saw him when he
walked in the door with a shotgun. I was sitting
at the table along the wall. I was facing where
the bartender was standing and I also had a view
of the man that walked in the door. I was looking
to the west." Abs. 32.
But at the post-conviction hearing it was discovered
that police officers who had investigated the murder
possessed a statement by one Charles Mayer, who had
been sitting with Powell at a table in the bar, which
contained a diagram indicating that Powell was seated
in a direction opposite that indicated in his trial testiMOORE
v. ILLINOIS 803
786 Opinion of MARSHALL, J.
mony. This diagram was never made available to defense
counsel.2
Donald O'Brien, who had also been seated at Powell
and Mayer's table, testified at trial and contradicted
the testimony of both Powell and Patricia Hill. Although
O'Brien admitted that he did not actually see
the shooting because his back was to the bar, he was
certain that petitioner was not the man who had been
ejected from the victim's bar only an hour before the
killing. O'Brien's testimony greatly undercut the apparent
retaliatory motive that the prosecution attributed
to petitioner.3
2 It is true, as the Court states, that following the shootjng Powell
followed the assailant into the street, but it is also true that he never
got closer than 50 to 60 feet of the murderer. Abs. 32. The
strength of his testimony lay in the alleged opportunity he had for
close observation of the murderer while the crime was committed.
Footnote 6 of the Court's opinion implies that during the trial the
prosecution turned over Mayer's diagram to defense counsel. But
there is absolutely no support for this implication in the record.
While it is true that the diagram was drawn on the back of the
original statement given by Mayer to the police, there is nothing to
indicate that it was ever recopied and made a part of any reproductions
of Mayer's statement. All indications are that it was not reproduced.
At the post-conviction hearing the following testimony was
adduced: the police officer who aided the prosecution at trial indicated
that he had the original diagram in his file, Abs. 244-249; the
two lawyers who had represented petitioner at trial both swore that
they were given only Mayer's statement, not his diagram, Abs. 307,
328; and the prosecutor testified that he did not know for sure
whether he gave the diagram to defense counsel, but that it was
certain that he did not supply the diagram if it was not in his file.
Abs. 324. Since the diagram was in the police officer's file, not the
prosecutor's, it is clear that it was never made available to defense
counsel, even though the prosecutor was aware of its contents. See
infra, at 809.
3 The Court asserts that O'Brien may have been drunk. His
tP.Stimony at trial made it clea.r beyond doubt that when the victim
ejected the man alleged to be the petitioner from the bar, this wit804
OCTOBER TERM, 1971
Opinion of MARSHALL, J. 408 lT. S.
Because of the contradictory testimony of those persons
who were present at the scene of the murder, the
statements allegedly made by the petitioner after the
crime were crucial to the prosecution's case. The key
prosecution witness in this regard was Virgle Sanders.
He testified that two days after the murder he was in
the Ponderosa Tavern, that petitioner ( whom he knew as
"Slick") was there also, and that petitioner said "[s]omething
about it's season or open season on bartenders or
something like that." Abs. 44. The bartender also
testified that he recognized petitioner as being present
at the same time as Sanders. And the owner of the
tavern stated that he gave petitioner and petitioner's
friend a short ride in his automobile, at the end of which
the friend mentioned something about "trouble with the
bartender." Abs. 52.
After his trial and conviction petitioner learned that
five days after the murder, Sanders gave a statement
to the police in which he said that he had met "Slick"
for the first time about six months before he spoke to
him in the Ponderosa Tavern. As the Court notes, it
would have been impossible for Sanders to have met
the petitioner at the time specified, because petitioner
was in federal prison at that time. At the post-conviction
hearing, Sanders said that he was not positive when
he first met the man known as "Slick," but that he
definitely knew it was before Christmas 1961. Petitioner
was not released from federal custody until March
1962. When confronted with this fact, Sanders indicated
that it was impossible that petitioner was the man
with whom he had spoken in the Ponderosa Tavern.
Abs. 296. Sanders' trial identification was further impeached
at the post-trial hearing by testimony that on
ness was perfectly sober. Later, especially after the killing, the
witness drank heavily and became intoxicated. No one contradicted
this at trial.
MOORE v. ILLINOIS 805
786 Opinion of MARSHALL, J.
the day of trial he told police officers that petitioner
was approximately 30 or 40 pounds lighter than he
remembered "Slick" being. Abs. 294.
Sanders' testimony that petitioner and "Slick" were
not one and the same was corroborated at the hearing.
The reason that Sanders could remember the first time
that he had met "Slick" was that "Slick" had been involved
in a scuffle with one William Thompson. Thompson
testified at the hearing that he remembered the altercation,
that he knew "Slick," that prior to the trial he
had told police officers that petitioner was not "Slick,"
and that he remained certain that petitioner and "Slick"
were different people. Finally, Sanders' testimony was
corroborated by Delbert Jones, the owner of the tavern
where "Slick" and Thompson scuffied. Jones testified
that he was certain that petitioner was not the man
known as "Slick."
The fact is that Thompson and Jones were both familiar
with one James E. Watts, whom they knew as
"Slick," and who looked very much like the petitioner.
The record makes clear that the police suspected Watts
as the murderer and assigned a lieutenant to search for
him. A raid of Jones' bar was even made in the hope
of finding this suspect.
Sanders' testimony at the post-conviction hearing indicates
that it was Watts who bragged about the murder,
not petitioner. It is true that the bartender and the
owner of the Ponderosa Tavern testified at trial that it
was petitioner who was in t.he bar with Sanders, but the
bartender had never seen "Slick" before, and the owner
was drinking the entire afternoon. Furthermore, the
fact remains that petitioner and Watts look very much
alike.
Petitioner urges that when the State did not reveal
to him Sanders' statement about meeting "Slick" at
an earlier time and the corroborative statements of
806 OCTOBER TERM, 1971
Opinion of MARSHALL, J. 408 U.S.
Thompson and Jones, it denied him due process. The
Court answers this by saying that the statements were
not material. It is evident from the foregoing that the
statements were not merely material to the defense,
they were absolutely critical. I find myself in complete
agreement with Justice Schaeffer's dissent in the Illinois
Supreme Court:
"The defendant's conviction rests entirely upon
identification testimony. The facts developed at
the post-conviction hearing seriously impeached, if
indeed they did not destroy, Sanders's trial testimony.
Had those facts, and the identifications of
'Slick' Watts by Thompson and Jones, been available
at the trial, the jury may well have been unwilling
to act upon the identifications of Patricia
Hill and Henley Powell. Far more is involved in
this case, in my opinion, than 'the following up of
useless leads and discussions with immaterial witnesses.'
Certainly if Sanders's identification was
material, the . . . testimony of the other witnesses
which destroyed that identification [ was] also material.
Consequently, I believe that the State's nondisclosure
denied the defendant the fundamental
fairness guaranteed by the constitution. " 42
111. 2d, at 88-89, 246 N. E. 2d, at 308.4
4 Chief Judge Friendly has noted that when the prosecution fails
to disclose evidence whose high value to the defense could not have
escaped the prosecutor's attention, "almost by definition the evidence
is highly material." United States v. Keogh, 391 F. 2d 138,
147 (CA2 1968). See also United States ex rel. Meers v. Wilkins,
326 F. 2d 135 (CA2 1964).
The materiality of the undisclosed evidence in this case cannot be
seriously doubted. The State based its case primarily on the eyewitness
identifications of petitioner by a witness and patron in the
bar. Testimony of this sort based on in-court identification is often
viewed with suspicion by juries. See McGowan, Constitutional InMOORE
v. ILLINOIS 807
786 Opinion of MARSHALL, J.
Petitioner also urges that the failure of the prosecution
to disclose the information concerning where the
eyewitness Powell was sitting when he allegedly saw petitioner
is another instance of suppression of evidence in
violation of the Fourteenth Amendment. Had this been
the prosecution's only error, I would join the Court in
finding the evidence to be immaterial. But if this evidence
is considered together with other evidence that
was suppressed, it must be apparent that the failure
of the prosecution to disclose it contributed to the denial
of due process.
Even if material exculpatory evidence was not made
available to petitioner, the State argues that because
petitioner did not demand to see the evidence, he cannot
now complain about nondisclosure. This argument
is disingenuous at best.
Prior to trial, petitioner moved for discovery of all
statements given to the prosecutor or the police by any
witness possessing information relevant to the case.
Abs. 5. In explaining why such a broad motion was
made, petitioner's counsel stated that, "We want to
circumvent the possibility that a witness gets on the
stand and says, 'Yes, I made a written statement,' and
then the State's Attorney says, 'But no, we don't have
it in our possession,' or they say, 'It's in the possession
of Orlando Wilson [Superintendent of Police, Chicago,
Ill.],' or 'The Chief of Police of Lansing.'" Abs. 8. In
terpretation and Criminal Identification, 12 Wm. & l\fary L. Rev.
235, 241-242 (1970). That testimony in this case was subject to
serious question: indeed, petitioner premised his defense in large
part on a theory of misidentification. Coupled with the contradictory
statement made by O'Brien (see supra, at 803), the evidence showing
that one of the witnesses may not have had an adequate opportunity
to observe and that petitioner may have been confused with another
person named "Slick" would certainly have been material to the
defense's presentation of its case.
808 OCTOBER TERM, 1971
Opinion of MARSHALL, J. 408U.S.
response to the motion, the prosecutor guaranteed defense
counsel and the court that he would supply defense
counsel with statements made either to the police
or to the State's Attorney by witnesses who were called
to testify at trial. Ibid. Based on this representation,
the motion for discovery was denied. Never was there
any implication by the prosecutor that his guarantee was
in any way dependent upon petitioner's making repeated
and specific requests for such statements after each
witness testified at trial. The prosecutor's guarantee
certainly covered Sanders' statement. As for the statements
of the bartender and owner of the Ponderosa
Tavern and the statement and diagram of Charles Mayer,
petitioner clearly demanded to see these things before
trial. The prosecution took the position that it was
bound to reveal only the statements of witnesses who
testified. Hence, it is hard to imagine what sort of
further demand petitioner might have made. Moreover,
the very fact that petitioner made his motion for extensive
discovery placed the prosecution on notice that
the defense wished to see all statements by any witness
that might be exculpatory. The motion served "the
valuable office of flagging the importance of the evidence
for the defense and thus impos[ing] on the prosecutor a
duty to make a careful check of his files." United States
v. Keogh, 391 F. 2d 138, 147 (CA2 1968).
In my view, both Brady v. Maryland, 373 U. S. 83
(1963), and Napue v. Illinois, 360 U.S. 264 (1959), require
that the conviction in this case be reversed. Napue
establishes that the Fourteenth Amendment is violated
"when the State, although not soliciting false evidence,
allows it to go uncorrected." /,d., at 269. And Bra,,dy
holds that suppression of material evidence requires a
new trial "irrespective of the good faith or bad faith of
the prosecution." Supra, at 87. There can be no doubt
that there was suppression of evidence by the State and
MOORE v. ILLINOIS 809
786 Opinion of MARSHALL, J.
that the evidence that the State relied on was "false" in
the sense that it was incomplete and misleading.
Both before and during the trial the prosecutor met
with Sanders and went over the statement that he had
given the police five days after the murder. Abs. 301,
315. Thus, it is apparent that the prosecutor not only
knew of the statement, but was actively using it to
prepare his case. There was also testimony at the postconviction
hearing from the prosecution that it had discussed
the location where Powell was sitting when he
allegedly saw the murder. While the prosecutor could
not remember whether or not he actually had Mayer's
statement and diagram in his possession, he had some
recollection that before trial he was informed of exactly
where everyone at Powell's table was sitting. Abs.
323. No attempt was ever made at trial to communicate
this information to the defense.
Moreover, seated at the prosecutor's table throughout
the trial was Police Lieutenant Turbin, who had investigated
the case and who was assisting the prosecution.
At the post-conviction hearing, he testified that throughout
the trial he was not only aware of Sanders' statement
and Mayer's diagram, but also that he had them
in his file. He made no attempt to communicate his
information to the prosecutor or to remind him about
the evidence.
When the State possesses information that might well
exonerate a defendant in a criminal case, it has an affirmative
duty to disclose that information. While frivolous
information and useless leads can be ignored, if evidence
is clearly relevant and helpful to the defense, it
must be disclosed.
Obviously some burden is placed on the shoulders
of the prosecuto•r when he is required to be responsible
for those persons who are directly assisting him in bringing
an accused to justice. But this burden is the essence
810 OCTOBER TERM, 1971
Opinion of MARSHALL, J. 408 u. s.
of due process of law. It is the State that tries a man,
and it is the State that must insure that the trial is fair.
"A citizen has the right to expect fair dealing from his
government, see Vitarelli v. Seaton, 359 U. S. 535, and
this entails ... treating the government as a unit rather
than as an amalgam of separate entities." S&E Contractors,
Inc. v. United States, 406 U. S. 1, 10 (1972).
"The prosecutor's office is an entity and as such it is the
spokesman for the Government." Giglio v. United
States, 405 U. S. 150, 154 (1972).5 See also Santobello
v. New York, 404 U.S. 257,262 (1971); Barker v. Wingo,
407 u. s. 514 (1972).
My reading of the case leads me to conclude that the
prosecutor knew that evidence existed that might help
the defense, that the defense had asked to see it, and
that it was never disclosed. It makes no difference
whatever whether the evidence that was suppressed was
found in the file of a police officer who directly aided
the prosecution or in the file of the prosecutor himself.
When the prosecutor consciously uses police officers as
part of the prosecutorial team, those officers may not
conceal evidence that the prosecutor himself would have
a duty to disclose. It would be unconscionable to permit
a prosecutor to adduce evidence demonstrating guilt
without also requiring that he bear the responsibility of
producing all known and relevant evidence tending to
show innocence.
5 In the recent decision in Kastigar v. United States, 406 U. S.
441 (1972), holding that use immunity was co-extensive with the
Fifth Amendment privilege against self-incrimination, the Court
noted that prosecutors may be responsible for actions of police
officers enlisted to aid a prosecution.
PORT OF PORTLAND v. UNITED STATES 811
Syllabus
PORT OF PORTLAND ET AL. v. UNITED STATES
ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF OREGON
No. 70-31. Argued October 20, 1971-Decided June 29, 1972
The Spokane, Portland & Seattle Railway Co. (SP&S), a subsidiary
of Burlington Northern, and the Union Pacific (UP), sought Interstate
Commerce Commission (ICC) approval under § 5 (2) of the
Interstate Commerce Act of a joint acquisition of control of the
Peninsula Terminal Co. (Peninsula), whose tracks provide an access
route to Rivergate, an industrial complex being developed by
the Port of Portland, Oregon. Peninsula would continue to operate
as a separate carrier. The Milwaukee and the Southern Pacific
(SP), the two other line-haul carriers serving Portland, sought
inclusion as joint purchasers of Peninsula, and trackage rights
linking their lines with Peninsula, under §§ 5 (2) (b), (c).and (d)
of the Act. SP, by a separate proceeding, also sought trackage
linking its lines with Peninsula, under§ 3 (5). The ICC (subject
to conditions to protect the traffic of the other railroads) approved
the purchase of Peninsula by Burlington Northern and UP, but
denied the Milwaukee and SP petitions. It concluded that the
adverse effects on SP&S and UP of the proposed four-railroad
ownership of Peninsula and accompanying trackage rights would
outweigh the advantages to SP, Milwaukee, and the Rivergate industries.
Milwaukee contends that Condition 24 (a) to the Northern
Lines merger, which gave Milwaukee access to the Portland
area over the Burlington N orthern-SP&S tracks, required that
Milwa\lkee be included in the purchase of Peninsula. Held:
1. On the record in this case (which is ambiguous with regard
to many factual and procedural issues) it has not been shown that
the ICC's order authorizing UP and Burlington Northern alone to
acquire Peninsula met the "public interest" standard of § 5 (2).
Pp. 834-842.
(a) In stressing the small share in Peninsula's traffic that
Milwaukee had before the Northern Lines merger, the ICC ignored
any possible increase in that share after Condition 24 (a) took
effect. Pp. 839-840.
812 OCTOBER TERM, 1971
Syllabus 408 U.S.
(b) In announcing a principle of preserving the market shares
of the two railroads currently connecting with Peninsula, the ICC
failed to explain why it was not taking into account the potentially
enormous traffic over Peninsula, should Peninsula become the
northern route into Rivergatc. Pp. 840-841.
(c) The ICC's denial of inclusion of SP and Milwaukee because
their gain would work a corresponding loss to Burlington
Northern and UP is not a proper approach under § 5 (2), given
the principle that the anticompetitive effects of any § 5 (2) transaction
must be explicitly considered. McLean Trucking Co. v.
United States, 321 U. S. 67, 83-87. Pp. 841-842.
(d) In view of uncertainties about the northern access to
Rivergate-given the physical limitations of Peninsula's present
facilities-and the apparent fact that physical operation over
Peninsula into Rivergate was not at issue here, approval of the
ICC order, with its protective conditions, may still be in the public
interest, but the announced grounds for the ICC decision do not
comport with the applicable legal principles. See SEC v. Chenery
Corp., 318 U. S. 80, 87-88. P. 84?
2. The denial of trackage rights to SP ( on the ground that SP
was "not entitled to serve Peninsula or Rivergate") should be reconsidered
by the ICC in conjunction with the reappraisal of the
§ 5 (2) issues. Pp. 843-844.
Reversed and remanded.
BLACKMUN, J ., delivered the opinion of the Court, in which all
Members joined except POWELL and REHNQUIST, JJ., who took no
part in the consideration or decision of the case.
Lofton L. Tatum argued the cause for appellants.
With him on the briefs were Raymond K. Merrill, Warren
H. Ploeger, Oglesby H. Young, W. Harney Wilson,
James H. Pipkin, Jr., Lee Johnson, Attorney General of
Oregon, Dale T. Crabtree, Assistant Attorney General,
Samuel P. Delisi, and Brenda P. Murray. Messrs. Merrill
and Ploeger filed a brief for appellant Chicago, Milwaukee,
St. Paul & Pacific Railroad Co. Solicitor
General Griswold, Acting Assistant Attorney General
Comegys, and Howard E. Shapiro filed a brief for the
United States in support of appellants.
PORT OF PORTLAND v. UNITED STATES 813
811 Opinion of the Court
Fritz R. Kahn argued the cause for appellee the Interstate
Commerce Commission. With him on the brief
were Betty Jo Christian and Emmanuel H. Smith. Hugh
L. Biggs, Roger J. Crosby, James Warren Cook, Richard
Devers, Randall B. Kester, James H. Anderson, and
John F. Weisser, Jr., filed a brief for appellees Spokane,
Portland & Seattle Railway Co. et al.
MR. JusTICE BLACKMUN delivered the opinion of the
Court.
This case involves an order of the Interstate Commerce
Commission, issued under § 5 (2) of the Interstate
Commerce Act, as amended, 54 Stat. 905, 49
U. S. C. § 5 (2), authorizing the joint acquisition of a
heretofore independent switching railroad at Portland,
Oregon, by two of the four line-haul railroads serving
that city. Spokane, P. & S. R. Co. and Union Pacific
R. Co., 334 I. C. C. 419 (1969). The switching railroad,
Peninsula Terminal Co., is of current interest to the
carriers because it provides an entrance route to the
Rivergate Industrial District, a modern industrial and
port complex being developed by the appellant, Port of
Portland.
The two railroads authorized to acquire Peninsula
are the Union Pacific Railway Co. (UP) and the Great
Northern Pacific & Burlington Lines, Inc. (Burlington
Northern), through its subsidiary, the Spokane, Portland
& Seattle Railway Co. (SP&S).1 The two other line-
1 SP&S was formerly owned by the Great Northern Railway
Co. and the Northern Pacific Railway Co. These two roads merged
to become Burlington Northern. See Northern Lines Merger Ca.ses,
396 U. S. 491 (1970). SP&S now operates as an integral part of
that railroad. Reference to Burlington Northern in this opinion
will include its SP&S operation, but SP&S often will be referred
to in connection with the proceedings below, where it was the
named party.
814 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
haul carriers now serving Portland-the Chicago, Milwaukee,
St. Paul & Pacific Railroad Co. (Milwaukee)
and the Southern Pacific Transportation Co. (SP)-
sought to be included as joint purchasers of Peninsula
under §§ 5 (2) (b), (c), and (d) of the Act, 49 U. S. C.
§§ 5 (2) (b), (c), and (d), and sought trackage rights
linking their lines with Peninsula. This appeal arises out
of the Commission's denial-in disagreement with its
hearing examiner's recommendations-of the petitions of
Milwaukee and SP. Together with these two railroads,
the Port of Portland and the Public Utility Commissioner
of Oregon appeal from the decision of the
three-judge District Court affirming, without opinion,
the Commission's order. The United States joins the
appellants in urging that the judgment below be reversed,
while the Commission joins Burlington Northern
and UP in urging affirmance. Probable jurisdiction was
noted. 401 U. S. 906 (1971).
The question whether the Commission applied the
correct legal standards is presented against the background
of a complex factual situation-though this is
not unusual in the case of railway mergers and acquisitions-
and we find it necessary to go into detail concerning
the facts and the proceedings prior to the
submission of the case here.
I
A. The Rivergate Area and Peninsula's Relation to It
The developing Rivergate Industrial District occupies
nearly 3,000 acres at the tip of the peninsula formed
by the confluence of the Columbia and Willamette
Rivers. Rivergate's six miles of waterfront will provide
docksites for direct deepwater access to the Pacific Ocean.
The Port of Portland has expended more than five million
dollars of public funds for planning, construction,
and development, and it is estimated that ultimate pubPORT
OF PORTLAND v. UNITED STATES 815
811 Opinion of the Court
lie and private investment in industrial and port facilities
at Rivergate will exceed 500 million dollars.
As conceived by its public developers, the Rivergate
complex will be served by a domestic transportation
network capable of providing efficient and economical
service to and from points throughout the Nation. To
achieve this goal, the Port's consultants recommended
construction by the Port of an internal rail loop that
would connect with existing carriers at the southwestern
and eastern corners of Rivergate, thus providing Rivergate
industries with direct access to all line-haul carriers
serving Portland. At full development-estimated
to be 15 years in the future-rail traffic generated by
these industries is expected to reach between 500 and
600 cars per day, with a projected annual volume of
five million tons of freight.
At present, eight industries 2 occupy about one-tenth
of the Rivergate area. Seven of these are located on the
west, or Willamette River, side of Rivergate, and are
served by tracks owned by the Port of Portland. Outside
rail access to this part of Rivergate is provided by
tracks extending from UP's Barnes Yard (point 9
on the schematic map appended to this opinion) and
connecting with the Port of Portland tracks. Over
these external tracks, jointly owned by UP and Burlington
Northern, UP provides switching service to the
line-haul carriers serving Portland. It is expected that
this Barnes Yard route will remain the southwest entrance
to Rivergate.
2 When the record closed below, the number of industries in Rivergate
was five, four of which were located on the Willamette River
side of Rivergate. App. 81. By the time the case had reached the
Commission, another industry had located on the Willamette River
side. According to the Brief for the Interstate Commerce Commission,
p. 38, which no one has contradicted, two additional industries
have now located on the Willamette River side.
816 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
The one other Rivergate industry-the poleyard of
the Crown Zellerbach Corporation (Point E on the
map )-is located at the easternmost edge of Rivergate,
on the Columbia River. Outside rail access is presently
provided by Peninsula, which serves, in addition,
13 industries located just southeast of the Rivergate
boundary. Peninsula, organized in 1918 to serve a packinghouse
facility long since closed, has a main track
extending for only 8,000 feet along the Columbia River.
At its easternmost end is the North Portland interchange
(point 7 on the map), where Peninsula connects with
lines owned by Burlington Northern and UP. Since the
lines of these two line-haul carriers do not connect directly
with Rivergate in this area, access to the eastern
end of the Rivergate District is, at present, solely over
Peninsula tracks.
Whether Peninsula tracks will remain the sole access
to the eastern end of Rivergate is by no means certain.
Peninsula suffers from certain physical limitations-its
tracks are laid upon sand, its clearances are limited, and
the main line is impeded by heavy curvature. Furthermore,
the North Portland interchange tracks may have
insufficient capacity for the expected Rivergate traffic.
Accordingly, an alternate access route to the eastern
end of Rivergate is under consideration, that is, a new
spur leading directly to Rivergate from the Burlington
Northern main north-south tracks.3
B. The Proposed Purchase of Peniri.sula
All outstanding capital stock of Peninsula is owned
by the United Stockyards Corporation. Stockyards R.
Co. Control, 254 I. C. C. 207 (1943). United is not
3 SP&S and UP had already provided for joint ownership of such
a spur in their May 26, 1967, contract for the joint ownership of the
line between Barnes Yard and the southwestern part of Rivergate.
See Art. XI of this agreement, App. 313.
PORT OF PORTLAND v. UNITED STATES 817
811 Opinion of the Court
itself a carrier and has no interest in continuing to
operate a railroad independent of its stockyard operation.
It has been willing to sell Peninsula at the appraised
value of its capital stock, and it has no preference
as to the purchaser. On February 28, 1967,
United entered into an agreement to sell Peninsula to
SP&S and UP.4
By joint application filed with the Interstate Commerce
Commission on July 25, 1967, SP&S and UP
sought approval, under § 5 (2) of the Interstate Commerce
Act,5 of their contracted purchase of Peninsula
4 The agreed purchase price is $299,405 for all outstanding shares
of common stock of Peninsula plus the sum of $70,000 to reimburse
United for two switch engines sold by United to Peninsula,
and representing an unsecured account payable to United. Peninsula's
properties consist of 13.17 acres of land, none suitable for industrial
development, and a total of 3.79 miles of main line and secondary
and spur tmck laid on treated ties in sand with no rock
ballast. Besides the two above-noted locomotives, including tools
and parts for their operation and maintenance, Peninsula owns tools
for track maintenance, a conveyance for workmen, a heated engine
house for both locomotives, a yard office, and a sand house.
5 Section 5 (2) of the Act, 49 U.S. C.§ 5 (2), provides in pertinent
part:
"(a) It shall be lawful, with the approval and authorization of
the Comrni&~ion, as provided in subdivision (b) of this paragraph-
" ( i) for . . . two or more carriers jointly, to acquire control of
anot.J1er through ownership of its stock or otherwise . . . .
"(b) Whenever a transaction is proposed under subdivision (a) of
this paragraph, the carrier or carriers or person seeking authority
therefor shall present an application to the Commission, and thereupon
the Commission . . . shall afford reasonable opportunity for
interested parties to be heard. . . . [A] public hearing shall be
held in all cases where carriers by railroad are involved unless the
Commission determines that a public hearing is not necessary in the
public interest. If the Commission finds that, subject to such terms
and conditions and such modifications as it shall find to be just and
reasonable, the proposed transaction is within the scope of subdivision
(a) of this paragraph and will be consistent with the public
818 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
from United Stockyards. The application pointed out
that the acquisition would enable the applicants to provide
rail service to the adjacent Rivergate area over the
Peninsula tracks. Peninsula, however, would continue
to operate as a separate carrier. No major changes in
traffic or revenues were anticipated in the immediate future,
though it was anticipated that "within the foreseeable
future substantial new traffic and revenues" would
be derived from the developing Rivergate area.
In response to the above application, Milwaukee and
SP filed petitions seeking inclusion in the acquisition
of Peninsula as joint and equal owners, pursuant to
§§ 5 (2)(b), (c), and (d) of the Act; in addition, they
sought the right to use tracks necessary to connect
their own lines with Peninsula. The Commission's action
on these petitions is the subject of the present
appeal. The competing contentions are closely related
to the facts of the interconnections between the four
line-haul carriers near Rivergate, and to these we now
turn.
interest, it shall enter an order approving and authorizing such
transaction, upon the terms and conditions, and with the modifications,
so found to be just and reasonable . . . .
"(c) In passing upon any proposed transaction under the provisions
of this paragraph, the Commission shall give weight to the
following considerations, among others: ( 1) The effect of the proposed
transaction upon adequate transportation service to the public;
(2) the effect upon the public interest of the inclusion, or failure
to include, other railroads in the territory involved in the proposed
transaction; (3) the total fixed charges resulting from the proposed
transaction; and (4) the interest of the carrier employees affected.
" ( d) The Commission shall have authority in the case of a proposed
transaction under this paragraph involving a railroad or railroads,
as a prerequisite to its approval of the proposed transa.ction,
to require, upon equitable terms, the inclusion of another railroad or
other railroads in the territory involved, upon petition by such
railroad or railroads requesting such inclusion, and upon a finding
that such inclusion is consistent with the public interest."
PORT OF PORTLAND v. UNITED STATES 819
811 Opinion of the Court
C. Carrier Interconnections and Switching Arrangements
(1) The North Portland Interchange
At the North Portland interchange (point 7 on the
map), where Peninsula connects with Burlington Northern
and UP, are four interchange tracks. Two of these
are jointly owned by Burlington Northern and UP; the
remaining two 2.re owned half by Peninsula, and the
other half jointly by Burlington Northern and UP. Only
one of these four tracks-one of the two jointly owned
by Burlington Northern and UP-connects directly to
the Burlington Northern double main-line tracks, running
to the north across the Columbia River. In addition,
the interchange tracks connect to a single UP
track, which extends south through a mile-long tunnel
to the UP's Albina Yard (point 6 on the map), a distance
of 5.2 miles.0
At the time of the hearing in this case, about 30
cars were handled daily at the North Portland interchange.
About 61 % of this traffic involved switching
between the predecessors of Burlington Northern
on the one hand and UP and its subsidiaries on the
other. Only the remaining 39% involved switching
cars designated to or from industries served by Peninsula.
1 As the only two line-haul carriers connecting
6 Although the map reproduced in the Appendix does not make this
clear, trains coming north on the UP track from Albina Yard may
enter directly upon the Burlington Northern double main-line tracks
just south of North Portland, without passing through the North
Portland interchange.
7 These percentages are based on the figures for loaded or partly
loaded cars interchanged at Peninsula during 1967: 2,748 cars
designated to or from Peninsula industries; 4,300 interchanged
between UP and the predecessors of Burlington Northern. It is not
clear from the record how the total figure of 7,048 cars is translated
into 30 cars per day-perhaps empty cars are included-but none
of the parties disputed the daily or annual figures.
820 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
directly with Peninsula at North Portland, Burlington
Northern and UP provide reciprocal switching to any
other line-haul carrier whose cars are designated to or
from industries served by Peninsula.8
(2) The Southern Pacific Connection
Although SP is a line-haul carrier serving Portland,
its tracks terminate in East Portland (point 5) and at
the Hoyt Street Yard on the other side of the Willamette
River (point 3). SP cars designated for industries
served by Peninsula are generally switched t-0 UP
trains at the latter's Albina Yard (point 6) and moved
8 In Switching Charges and Absorption Thereof at Shreveport, La.,
339 I. C. C. 65, 70 (1971}, the Commission has explained "reciprocal
switching" as follows:
"It has long been a common practice among the railroads to participate
at commonly served terminal areas in what is called reciprocal
switching. In practice this means that one line-haul carrier
operating within the terminal area will act only as a switching carrier
in placing cars at industries on its own trackage for loading or
unloading, as an incident of the line-haul movement of those cars
over another carrier whose trackage in that terminal area does not
e>."tend to the serviced industry. The carriers reciprocate in their
roles as switching and line-haul carriers at this terminal in accordance
with the flow of traffic to and from industries on their respective
trackage. In theory the carriers mutually exchange their switching
services in these terminal areas, with the effect of extending the lines
of each carrier to the other's industries--even on traffic for which
they may be directly competitive as line-haul carriers. The scope
of these reciprocal switching services is, of course, defined in the
carriers' respective tariffs, either by definition of a specific area of
trackage, or by identification of the particular industries for which
reciprocal switching is held out. Frequently, the switching charges
made applicable by each carrier for reciprocal switching are constructed
without regard to the actual cost of the service, on the
theory that these mutually incurred costs balance out each other. In
many instances the line-haul carrier absorbs the reciprocal switching
charge, thus placing the off-line industries within a given terminal
area on an identical rate basis with its own on-line industries in that
terminal area."
PORT OF PORTLAND v. UNITED STATES 821
811 Opinion of the Court
thence to the North Portland interchange, where they
are switched by Peninsula itself to their ultimate destination.
Alternatively, the cars may be switched to
SP&S trains at the Hoyt Street Yard and moved to
North Portland over the SP&S mainline. In either
case, SP must pay a switching charge to Burlington
Northern or to UP (whichever is the switching
carrier), and then pay a "rate division" to Peninsula
for its switching service.0 The Peninsula rate division
is absorbed by any line-haul carrier subject to it and is
thus not passed on to the shipper. The SP&S and UP
switching charges may be absorbed by a line-haul carrier
if a minimum line-haul revenue per car is exceeded,
and SP has done so, except on certain low-rated
noncompetitive traffic. SP shared in about 20% of
Peninsula's traffic in 1966, and in about 17% in 1967.
(3) Milwaukee's Presence in Portland
Throughout the proceedings below, Milwaukee was
not a line-haul carrier serving Portland. Its own tracks
terminate at Longview, Washington, 46 miles north of
Portland, and through arrangements with SP&S it shared
in only one percent of Peninsula's traffic in 1966 and
1967. However, a basic condition of the Commission's
approval of the merger of the Great Northern Railway
Co., the Northern Pacific Railway Company, and
their affiliates, including SP&S, was that Milwaukee be
made an effectively competitive transcontinental carrier
by being permitted to enter Portland over the lines of
the new company, Burlington Northern.1 ° Condition
9 In other words, Peninsula is compensated for its switching service
in these cases by a flat division of the line-haul rates. At the time
of hearing below, the charge generally amounted to $29.25 per car
when the car revenue exceeded $60. App. 79.
10 The Commission approved the merger on November 30, 1967.
Great Northern Pacific & Burlington Line, Inc.-Merger, etc.-Great
Northern R. Co. et al., 331 I. C. C. 228, modified Apr. 11, 1968,
822 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
24(a) of the merger required that Burlington Northern
"shall grant to the Milwaukee, upon such fair and
reasonable terms as the parties may agree or as
determined by this Commission in the event of
their inability to agree, trackage rights to operate
freight trains over [Burlington Northern] lines between
Longview Junction and Portland, including
the right to serve on an equal basis all present and
future industries at Portland and intermediate points
and the use of [Burlington Northern] facilities at
Portland necessary for the switching of traffic to
other railroads and industries. [Burlington Northern]
shall maintain Portland as an open gateway
on a reciprocal basis with the Milwaukee to the
same extent as with other connecting carriers .... "
331 I. c. c. 228, 357.
Pursuant to Condition 24(a), Milwaukee commenced
service to Portland on March 22, 1971.11 Since that
331 I. C. C. 869. This Court ultimately affirmed. Northern Lines
Merger Cases, 396 U. S. 491 (1970).
Why direct access to Portland was critical to the Milwaukee is
made clear by the following quotation from the three-judge District
Court opinion in what became the Northern Lines Merger Cases:
"Neither Great Northern nor Northern Pacific would interchange
traffic with Milwaukee [at Longview, Washington] except in circumstances
which gave Northern Lines the longest possible haul over
their own roads. This privilege of Northern Lines not to 'shorthaul'
themselves means that traffic originating on the Milwaukee east of
of the Twin Cities [and] destined for Portland or California was
required to be turned over to one of the merging lines at the Twin
Cities. As a consequence, Milwaukee was precluded from being a
true transcontinental competitor and was unable to make full use
of its extensive trackage ending only a few miles short of Portland.
Moreover, Milwaukee was completely precluded from the extensive
North-South traffic on the West Coast." 296 F. Supp. 853, 865
(DC 1968).
11 Since the instant case was litigated below on the express assumption
that the Northern Lines merger, and the accompanying condiPORT
OF PORTLAND v. UNITED STATES 823
811 Opinion of the Court
date, it has published rates reflecting single-line service
to Portland industries, including those served by Peninsula,
by absorbing the relevant switching charges. It
has operated its own locomotives over Burlington Northern
lines as far south as the Hoyt Street Yard on the
western side of the Willamette River (point 3). If
Milwaukee is not allowed to switch cars directly to
Peninsula at the North Portland interchange, Milwaukee
cars designated for industries on Peninsula will
be switched to Burlington Northern trains at Vancouver,
on the north side of the Columbia (point 8),
at the Hoyt Street Yard (point 3), or at the Guild's
Lake Yard (point 2), and moved thence to Peninsula.12
D. Milwaukee and Southern Pacific Pleadings Before
the Commission
By petition filed August 23, 1967, Milwaukee sought
inclusion in the proposed purchase of Peninsula by Burlington
Northern (then SP&S) and UP. Section
5 (2) ( d) of the Interstate Commerce Act authorizes the
Commission to require such inclusion as a prerequisite
to its approval of the purchase "upon a finding that
such inclusion is consistent with the public interest."
After first setting out its impending access to- Portland
over SP&S lines because of the Northern Lines merger,
Milwaukee alleged:
"The instant transaction, if approved by the
Commission without inclusion of Milwaukee upon
the terms stated below, would have the effect of
tion, would ultimately be affirmed, the Milwaukee's current operation
does not constitute a "change in circumstances" so much as a realization
of the assumption.
12 The briefs do not clearly reflect under what arrangements Milwaukee
cars have been reaching Peninsula since March 22, 1971,
though it is plain that Milwaukee trains have not been moving
directly to the North Portland interchange.
824 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
foreclosing Milwaukee direct service to- all the industries
now or in the future to be located on
the lines of Peninsula Terminal Company. With
fifty per cent of Peninsula Terminal Company stock
in the hands of Union Pacific Railroad Company,
not a party to the contract referred to above, Milwaukee
will not have any right similar to that
sought by applicants herein . . . to operate over
or obtain trackage rights in the lines of Peninsula
Terminal Company. Industries on the lines of
Peninsula Terminal Company will thus be denied
the single-line service of Milwaukee to such points
as [ various western and midwestern rail centers
served by Milwaukee], contrary to the public
interest." 13 App. 165.
Accordingly, the Milwaukee sought equal inclusion with
SP&S and UP in the purchase of Peninsula and, in
addition, asked
"[t]hat Milwaukee be granted the right to acquire
trackage rights over intervening connecting trackage
jointly owned by applicants, from SP&S main
line to Peninsula Terminal Company's lines upon
such reasonable terms and conditions, and for such
considerations, as Milwaukee and applicants may
negotiate, or, failing such negotiations, upon such
13 The contract here referred to is a 1966 agreement between Milwaukee
and the Northern Lines, the terms of which were incorporated
in large part into the Commission's conditions accompanying the
approval of the Northern Lines merger. In particular, the agreement
provided that Milwaukee could operate over SP&S lines as far
south as the Hoyt St. Yard, and that SP&S would provide switching
of Milwaukee cars at Vancouver and Portland "to or from industries
and connecting carriers to the extent such service is performed by
[Burlington Northern] or SP&S for itself or any other carrier."
These provisions were the direct predecessors of the vaguer Condition
24 (a), quoted above.
811
PORT OF PORTLAND v. UNITED STATES 825
Opinion of the Court
terms and conditions and for such consideration as
the Commission may find just and reasonable." 1
•
App. 166.
On December 29, 1967, SP&S and the UP filed replies,
arguing, inter alia: ( 1) that even if Condition
24 (a) were implemented, Milwaukee would still not connect
with Peninsula because of the intervening North
Portland interchange tracks, jointly owned by SP&S, UP,
and Peninsula, and trackage rights over these tracks
could not be granted to the Milwaukee in this proceeding;
and (2) that joint ownership of Peninsula with the
Milwaukee could "lead to a cumbersome, confused and
divided management with resulting policy stalemates
and serious deterioration of service."
Milwaukee thereupon filed a supplement to its petition
for inclusion, stating that
"in light of the replies of applicants herein to
the Milwaukee's petition for inclusion, the Milwaukee
alleges that the joint application herein is
for the purpose of bottling up the Milwaukee at
Portland and impair [sic] its ability to provide a
competitive service to industries served or to be
served by Peninsula Terminal Company contrary to
the public interest and the plain intent of the Commission's
[report and order in the Northern Lines
Merger Case]." App. 182.
Accordingly, the Milwaukee added to its earlier petition
by requesting:
"That applicants be required to grant Milwaukee
trackage rights over intervening trackage at North
A source of confusion in this case has been the extent to which
various carriers either would possess or sought to possess trackage
rights over Peninsula's main track (as opposed to the interchange
tracks at North Portland), so the reader is alerted to tread carefully
through the descriptions of the pleadings and the opinions below.
826 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
Portland connecting with the yards of Peninsula
Terminal Company, both as a condition to participation
in ownership of Peninsula Terminal Company
and also under Section 3 (5) of the Interstate
Commerce Act." App. 183. (Emphasis
added.)
Whether intentionally or not, by requesting trackage
rights under § 3 (5), the text of which appears in the
margin,15 Milwaukee divorced the question of access
to Peninsula from the question of inclusion in the ownership
of Peninsula. Any trackage rights granted in
connection with the petition for inclusion under § 5 (2)
would be contingent upon SP&S' and UP's deciding to
consummate the purchase; trackage rights granted under
§ 3 ( 5), however, would be independent of the purchase.
In the meantime, by an amended petition filed November
29, 1967, SP joined with the Milwaukee in seeking
inclusion under § 5 (2)(d) as an equal owner of
Peninsula. It further requested that UP
"be required to grant petitioner bridge trackage
rights over [the Union Pacific] main line and terminal
trackage between Peninsula Terminal Com-
15 Section 3 (5) of the Act, 49 U. S. C. § 3 (5), provides in pertinent
part:
"If the Commission finds it to be in the public interest and to
be practicable, without substantially impairing the ability of a common
carrier by railroad owning or entitled to the enjoyment of
terminal facilities to handle its own business, it shall have power by
order to require the use of any such terminal facilities, including
main-line track or tracks for a reasonable distance outside of such
terminal, of any common carrier by railroad, by another such carrier
or other such carriers, on such terms and for such compensation as
the carriers affected may agree upon, or, in the event of a failure
to agree, as the Commission may fix as just and reasonable for the
use so required, to be ascertained on the principle controlling compensation
in condemnation proceedings .... "
811
PORT OF PORTLAND v. UNITED STATES 827
Opinion of the Court
pany and the Southern Pacific-Union Pacific track
connection at East Portland, Ore." 16 App. 168.
In response to replies that trackage rights to East
Portland could not be granted in a § 5 (2) proceeding,
SP, unlike Milwaukee, initiated separate proceedings
under § 3 ( 5-) (Dec. 19, 1967). It sought orders requiring
SP&S and UP to allow the "common use of
Peninsula Terminal Company," together with bridge
trackage rights over UP lines to East Portland; additionally
( or, presumably, alternatively), it sought the
"common use of the terminal facilities of Union Pacific
between Peninsula Terminal Company and ... East
Portland, Oregon." 11
E. Proceedings Before the Hearing Examiner
The applications, petitions, and replies of the four
line-haul carriers were referred to an examiner for hearing
upon a consolidated record. The Port of Portland,
the Portland Commission of Public Docks, the Public
Utility Commissioner of Oregon, and Crown Zellerbach
Corporation intervened in favor of Milwaukee and the
16 We are told that "bridge trackage rights," permitting SP only
to haul cars from one end of the line to the other, are to be contrasted
with "full user rights" or "common use," which would permit SP to
serve any industries located along the UP track. See Brief for
Appellees SP&S and UP 27.
17 Like Milwaukee, SP had mentioned § 3 (5) in connection with
its § 5 (2) petition for inclusion, asking for
"trackage rights between East Portland and the yards of Peninsula
Terminal Company, both as a condition to participation in ownership
of Peninsula Terminal Company, and also under section 3
(5) ... , independently of the request for participation in ownership."
App. 169.
The hearing examiner and the Commission treated this § 3 (5) request
as having been superseded by SP's separate § 3 (5) proceedings,
which, if anything, sought broader relief. We do likewise.
828 OCTOBER TERM, 1971
Opinion of the Court 408 li'. s.
SP.18 At the hearings in February and March of 1968,
evidence was taken from five shippers in addition to
Crown Zellerbach, as well as officers and consultants of
the parties and intervenors.
On September 9, 1968, nearly a year after the Commission
had approved the Northern Lines merger, the
hearing examiner issued his report. In the § 5 (2) proceeding,
he recommended approval of the purchase of
Peninsula by Burlington Northern and UP, on condition
(1) that SP be included as an equal owner and
(2) that Milwaukee be included as an equal owner upon
consummation of the Northern Lines merger and upon
Milwaukee's commencing operations into Portland.10
The examiner further recommended that if the purchase
were consummated on the above conditions, SP
and Milwaukee be granted
"the right of access . . . to Peninsula Terminal
Company trackage over intervening North Portland
interchange tracks, at North Portland, Oreg.,
presently owned individually or jointly by [Peninsula,
SP&S and Northern Pacific, and UP], upon
such terms and compensation for use of such inter-
18 Eight railway employee organizations opposed the petitions and
applications of Milwaukee and SP. None of their contentions are
before us now.
19 In return for inclusion in the purchase of Peninsula, SP and
Milwaukee were to be required to make equal contribution to the
cost of the shares of capital stock and the locomotive equipment of
Peninsula.
Milwaukee's inclusion in the purchase was made contingent, not
only on ultimate approval of the Northern Lines merger, but also
upon Milwaukee's filing a § 1 (18) request for a "certificate of convenience
and necessity authorizing railroad operation between Longview
Junction, Wash., and Portland, Oreg." Given Condition 24 (a),
the Commission rejected the proposition that a § 1 (18) certificate
would be necessary before Milwaukee could begin operating in Portland,
and the question is not before us on appeal.
811
PORT OF PORTLAND v. UNITED STATES 829
Opinion of the Court
vening trackage mutually agreeable to the interested
carriers, or in the event of failure to agree,
as the Commissfon may fix as just and reasonable,
to be ascertained in accordance with the provisions
of section 3 (5) .... " App. 128-129.
The examiner found that this right of access "is practicable
and would not substantially impair the ability
of the owning carriers to handle their business." 20 App.
129.
In the separate § 3 ( 5) proceedings initiated by SP,
the examiner ordered common use by SP of the tracks
and facilities of UP for operation between the connection
at East Portland and the tracks of Peninsula at
North Portland, conditioned, again, upon compensation
to be agreed upon by the parties or "just and reasonable"
as fixed by the Commission.
In his discussion of the issues, the hearing examiner
first announced that he would treat the entire area in-
20 Did this § 5 (2) order grant SP the trackage rights it sought
from the Albina Yard? SP contended below that it did, arguing
that the only individually owned track in the area that was relevant
to the issue was the UP track from North Portland to the
Albina Yard, and that the examiner did seem to have in mind all
intervening tracks. To protect itself on this point, however, SP
filed an exception to the hearing examiner's recommendations, arguing
that he should have granted the requested trackage rights under
§ 5 (2).
As for Milwaukee's apparent effort to claim a § 3 (5) right to
trackage over the North Portland interchange tracks, see Milwaukee's
Supplement to Petition for Inclusion, quoted supra, we can only say
that it was handled very ambiguously by the hearing examiner. The
best explanation of his action is that he deemed it unnecessary to
grant trackage rights to :Milwaukee under § 3 ( 5), since he was granting
them under § 5 (2). Alternatively, he may have thought that
Condition 24 (a) gave Milwaukee trackage rights over the North
Portland interchange. Milwaukee did not file an exception on this
issue and ha~ not pressed it on this appeal. Cf. Brief for Appellants
34.
830 OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
volved as "one transportation terminal entity." On the
subject of inclusion in the purchase of Peninsula, he
announced:
"Existing disparity in charges and treatment of
traffic within the Portland switching area is convincing
evidence that the greatest economic advantage
for equality of shippers and carriers can
be accomplished best by equal access and ownership.
The most economical and functionally modern transportation
facilities are essential to development of
Rivergate and the Port of Portland. Limitation
of direct access there to two railroads barring on-line
solicitation and the direct development interests of
the other railroads serving the Portland area is
contrary to an environment of unencumbered development
and the establishment of a sound transportation
system. . . . [D] irect access to all the
carriers will enable shippers to deal directly with
originating carriers providing on-line service to many
points in areas not served by the two initial applicants.
Shippers would benefit from elimination of
switching charges assessed on non-competitive traffic
where one of the applicants now acts as a switching
carrier." App. 120-121.
On the subject of the SP's § 3 ( 5) applications, the
examiner found that the evidence warranted a conclusion
that common use by SP of UP trackage between
the North Portland interchange and East Portland
was "in the public interest, practicable, and would
not substantially impair UP's ability to handle its own
business." He noted the "almost incredible 30-hour
average transit time required for car movements between
Albina Yard and Peninsula, a round-trip distance
of about 10.4 miles, including engine changes, car inspection,
and car classification at Albina Yard." With
PORT OF PORTLAND v. UNITED STATES 831
811 Opinion of the Court
respect to the developing Rivergate complex, the examiner
was convinced
"that access thereto by other line-haul carriers
will create greater incentive for improvement of
railroad facilities and for elimination of present
unsatisfactory conditions in the involved area."
App. 124.
Nor did the examiner think that joint ownership and
access by the four line-haul railroads in Peninsula and
the proposed trackage rights to SP would curtail
competition.
"To the contrary, shippers in the involved area
would be afforded free direct access to all the linehaul
carriers' services. Among other things, it would
place traffic movements between the Portland area,
on the one hand, and, on the other, on-line points
of carriers in California and States east thereof, on
a more competitive basis with movements between
those points over the lines of UP and [Burlington
Northern] . . . . Also, Milwaukee would become
more competitive with UP and [Burlington Northern]
and their connections in providing service to
the north and east of Portland. The authorizations,
generally, would result in .improved competitive
service and the fostering of sound transportation
in the involved area." App. 125.
Finally, the examiner did not grant SP's apparent
application, pursuant to§ 3 (5), for trackage rights over
Peninsula itself. He concluded his discussion with the
words:
"In event the parties elect not to consummate the
purchase [ of Peninsula] recommended herein further
petitions by these carriers requesting access to and
operation over trackage of Peninsula pursuant to
832 OCTOBER TERM, 1971
Opinion of the Court
section 3 ( 5) of the Act may be filed.
tion will be retained for that purpose." 21
408 U.S.
Jurisdic-
App. 127.
F. The Decision of the Interstate Commerce Commission
Burlington Northern and UP filed exceptions to the
hearing examiner's recommendations. They contended,
inter alia, ( 1) that undue emphasis was placed on the
future development of Rivergate, (2) that the hearing
examiner erroneously held the Portland terminal area
to constitute one terminal entity, (3) that the evidence
does not support a four-way ownership of Peninsula,
either from a general public or a shipper standpoint,
(4) that Condition 24 (a) did not grant Milwaukee
access to Peninsula, and (5) that neither use
of the North Portland interchange tracks by Milwaukee
and SP, nor common use by the SP of UP trackage
between North Portland and East Portland, was in the
public interest.22
On June 6, 1969, Division 3 of the Interstate Commerce
Commission issued its opinion. 334 I. C. C. 419.
21 Whether or not SP had in fact sought, under § 3 (5), the right
to operate over Peninsula's main track was the subject of strenuous
dispute before the hearing examiner. Counsel were unable to agree
on the meaning of "common use," so the result of the interchange is
not perfectly clear, but SP's counsel appeared to concede that his
client sought no more than the right to operate to the North Port.-
land interchange and to connect there with Peninsula (in addition,
of course, to equal ownership in the stock of Peninsula). In any
event, it is clear that the hearing examiner did not recommend granting
any right to operate over the Peninsula main track, and we note
that SP did not file an exception on this matter.
22 SP&S and UP contended, in addition, that SP and Milwaukee
are not "railroads in the territory involved" within the meaning of
§ 5 (2) (d), and that the Commission, accordingly, did not have
jurisdiction to include these two lines in the purchase of Peninsula.
The Commission squarely rejected this contention, and since SP&S
and UP do not raise it in their briefs here, we assume that the Commission
decided the question correctly and discuss it no further.
PORT OF PORTLAND v. UNITED STATES 833
811 Opinion of the Court
Though it approved the acquisition of Peninsula by
SP&S and UP, it otherwise rejected the hearing examiner's
recommendations and denied the petitions and
applications fi]ed by Milwaukee and SP. The following
conditions were imposed upon the acquisition, "to
protect the present routings and interchanges" of
Peninsula:
"1. Under the control of SP&S and UP, Peninsula
shall maintain and keep open all routes and
channels of trade via existing junctions and gateways,
unless and until otherwise authorized by the
Commission;
"2. The present neutrality of handling inbound
and outbound traffic to and from Peninsula by
SP&S and UP shall be continued so as to permit
equal opportunity for service to and from all lines
reaching Peninsula through SP&S and UP without
discrimination as to routing or movement of traffic,
and without discrimination in the arrangements of
schedules or otherwise;
"3. The present traffic and operating relationships
existing between Peninsula, on the one hand,
and, all lines reaching Peninsula through the lines
of SP&S and UP, on the other, shall be continued
insofar as such matters are within the control of
SP&S and UP;
"4. Peninsula, SP&S and/ or UP shall accept,
handle, and deliver all cars inbound, loaded and
empty, without discrimination in promptness or frequency
of service irrespective of destination or route
of movement;
"5. Peninsula, SP&S and/or UP shall not do
anything to restrain or curtail the right of industries,
now located on Peninsula, to route traffic over any
and all existing routes and gateways;
834 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
"6. Peninsula, SP&S and/ or UP shaU refrain
from closing any existing route or channel of trade
with SP or Milwaukee on account of the [authorized
purchase of Peninsula], unless and until authorized
by this Commission;
"7. Consummation of [ the authorized purchase of
Peninsula] shall constitute assent by the corporate
parents of SP&S, the members of their respective
systems, and any carrier resulting from consummation
of the Northern Lines case, to be bound by
these conditions to the same extent that SP&S is
bound by these conditions; and
"8. Any party or person having an interest in
the subject matter may at any future time make
application for such modification of the abovestated
conditions, or any of them, as may be required
in the public interest, and jurisdiction will
be retained to reopen the proceeding on our own
motion for the same purpose." 334 I. C. C., at
436--437.
II
A. "Direct Access"
As a reading of Part I reveals, there seems to have
been a certain amount of confusion below as to whether
or not actual operation over the main tracks of Peninsula
by any of the four line-haul carriers was at issue in
this case. Early in the Commission's discussion of the
merits, for example, it said:
"[WJ e find that since neithe,r SP nor Milwaukee
now connect with Peninsula, and have never connected
with it in the past, their direct service to
Peninsula's industries over the objections of SP&S
and UP would constitute a new operation and an
invasion of the joint applicant's territory." 334
I. C. C., at 433 (emphasis added).
PORT OF PORTLAND v. UNITED STATES 835
811 Opinion of the Court
Laying aside the substantive policy involved in this
statement, we do not see how the italicized words can
refer to anything but physical operation over tracks
wholly owned by Peninsula. Yet, as we have already
seen supra, at 828- 829, and n. 20, and 832 n. 21, the hearing
examiner did not recommend the granting of such
trackage rights to Milwaukee and SP; and neither of
these two railroads filed exceptions to the hearing examiner's
report requesting such rights. As for Burlington
Northern and UP, the third condition which the
Commission imposed on their purchase of Peninsula
(quoted supra, at 833) seems to acknowledge that Peninsula
will continue to operate as a separate railroad,
handling all the switching from industries located upon
its lines to the North Portland interchange tracks.
This matter was not resolved before this Court. The
briefs filed by the appellants and by the United States
contain many references to "direct access" by the linehaul
carriers to Peninsula and Rivergate, again strongly
suggesting physical operation over Peninsula tracks.
The Commission argues that physical operation on the
part of Burlington Northern and UP is not at issue,
because ownership alone-all that these two railroads
seek-gives no right to operate over the tracks of the
purchased railroad. Brief for Interstate Commerce
Commission 23 n. 15; Tr. of Oral Arg. 30. Milwaukee
denies that it ever sought "to switch cars to Peninsula
industries with its own engines and crews," Supplemental
Brief for Appellant Milwaukee 34, but no similarly direct
statement has been forthcoming from SP.
We have set forth but one of the confusions--factual
and procedural-that plague this case. Such confusions
might have been resolved before the case reached us
had the three-judge court that initially reviewed these
orders written an opinion.
836 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
B. The Petitions for Inclusion
(1) Condition 24 (a)
Milwaukee and the United States argued at length
before this Court that Condition 24 (a) of the Northern
Lines merger by itself requires that Milwaukee be included
in the purchase of Peninsula. The Commission
considered this point at the very start of its discussion
of the merits and stated that Milwaukee's petition for
inclusion could not be viewed
"as part of the general realignment of western railroad
competition resulting from the Commission's
approval of the Northern Lines merger. Condition
No. 24 . . . is applicable only to Northern Lines
trackage and territory. The condition is silent with
respect to trackage and territory in which other
carriers, such as UP, have a joint interest and the
effect of the condition upon such joint trackage and
territory was not presented to, nor considered by, the
Commission. Furthermore, ... the purchase of
Peninsula by the joint applicants was not within the
contemplation of the Commission at the time condition
No. 24 was imposed. . . . Accordingly, we
consider the petition of Milwaukee under the same
public interest criteria as the petition and applications
of SP, rather than as a petition to carry out
the provisions of condition No. 24.10
" 334 I. C. C.,
at 432.
In its footnote 10, however, the Commission said:
"Upon completion of litigation in the Northern
Lines case and consummation of that merger, Milwaukee
may wish to seek relief from the Commission
in that proceeding to determine the relationship
of condition No. 24, if any, to Peninsula's tracks
811
PORT OF PORTLAND v. UNITED STATES 837
Opinion of the Court
which would at that time be partially owned by
the Northern Lines." Ibid.
This suggestion that the Commission might consider
anew the effect of Condition 24 (a) upon jointly owned
tracks leaves us in doubt whether at this point it has
made a final determination on the applicability of the
condition, or simply a determination that the question
should be raised in a different proceeding. We do not
find it necessary, however, to resolve this doubt and to
rule upon the narrow question whether Condition 24 (a)
alone requires that Milwaukee be included in the purchase
of Peninsula. No one disputes that the condition
had one clear meaning-that Milwaukee would be
permitted to run its trains into Portland over Burlington
Northern-SP&S tracks. The Commission took this as
its starting point and went on to discuss the merits of
both Milwaukee's and SP's petitions for inclusion. We
find, for the reasons that will appear below, that the
Commission took too narrow a view of the "public
interest" and we are in disagreement with its § 5 (2)
order.
(2) Evaluating the Public Interest
As an initial matter, the Commission limited its attention
to Peninsula alone, rather than considering the
"entire Portland area" as "one transportation terminal
entity," as the hearing examiner had. Appellants contend
that this very first step was error, but we think
it wiser to evaluate the Commission's approach as a
whole.
A fair summary of the Commission's analysis appears
in the last paragraph of its discu~ion of the petitions
for inclusion. There it concludes:
"The adverse effect on SP&S and UP, and the
shippers dependent upon them for service, of ad838
OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
mitting SP and Milwaukee into ownership and control
of Peninsula, would outweigh any advantage
accruing to SP, Milwaukee, and the Rivergate industries
of four-railroad ownership. We cannot find,
therefore, that inclusion of SP and Milwaukee in
the title proceeding would constitute a just and
reasonable term, condition, or modification of the
authority requested by the joint applicants." 334
I. C. C., at 435.
In the preceding paragraphs, the Commission had summarized
the evidence presented by the three shippers
located in Rivergate that had supported SP's petition
and application; it concluded that this evidence failed
to establish that benefits would accrue from four-railroad
ownership of Peninsula. No mention was made of evidence
that tended to establish that "shippers dependent
upon" SP&S and UP would suffer from such ownership.
It is apparent, therefore, that the dominant factor in
the Commission's analysis, outweighing any advantage
accruing to SP and Milwaukee from four-railroad ownership,
was the "adverse effect on SP&S and UP"; we
must examine now the manner in which the Commission
characterized this "adverse effect."
First, the Commission said:
"[W]e find that since neither SP nor Milwaukee
now connect with Peninsula, and have never connected
with it in the past, their direct service to
Peninsula's industries over the objections of SP&S
and UP would constitute a new operation and an
invasion of the joint applicant[s'] territory." Id.,
at 433.
We have already observed that this passage suggests
direct physical operation over the main track of Peniinsula,
a matter that appears not to be directly at issue
in this case. But it may also refer to the trackage
PORT OF PORTLAND v. UNITED STATES 839
811 Opinion of the Court
rights sought by Milwaukee and SP, as a condition to
the purchase, which would permit them to connect directly
with Peninsula, so the Commission's further treatment
of this point is relevant:
"In the past, the Commission has usually held
that sound economic conditions in the transportation
industry require that a railroad now serving
a particular territory should normally be accorded
the right to transport all traffic therein which it
can handle adequately, efficiently, and economically,
before a new operation should be authorized. This
conclusion is applicable not only with respect to
existing traffic but also with respect to potential
traffic . . . . See Minneapolis, St. P. & S. S. M. R.
Co. Acquisition, 295 I. C. C. 787, 802 [1958], and
cases cited therein." Ibid.
This passage appears to announce the principle that
in considering petitions for inclusion in proposed purchases
or mergers under § 5 (2), with accompanying
trackage rights, the dominant policy is preservation of
the market shares of the railroads already serving the
location in question, so long as those railroads provide
reasonably adequate switching service to other carriers
in the area. Whatever doubts we might have, either
as to the principle itself or its application to this case,
are removed by the critical paragraph that immediately
follows the sentences just quoted:
"As shown in the appendix, SP shared, through
connections and use of joint rates and routes, in
only about 20 percent of Peninsula's traffic during
1966, and only about 17 percent during 1967. Milwaukee's
share, also via connections and joint rates
and routes, amounted to only 1 percent during those
years. Permitting SP and Milwaukee to acquire access
to, and equal ownership of, Peninsula and
840 OCTOBER TERM, 1971
Opinion of the Court 408U.S.
therefore participate in its existing traffic on a
direct haul basis will, of course, allow those two
railro-ads to increase their share of Peninsula's declining
traffic (3,640 loaded cars handled in 1966
and 2,748 handled in 1967). These increased shares
of SP and Milwaukee could only be at the expense
of the joint applicants and the railway employees
whose jobs would be eliminated by the direct service
planned by SP and Milwaukee." Ibid.
This discussion strikes us as initially misdirected because
it ignores the prospective presence of Milwaukee
in this area. In 1966 and 1967, Milwaukee trains were
still running no closer to Portland than Longview, Washington,
46 miles away. All through the Commission proceedings,
however, it was assumed by all concerned that
pursuant to Condition 24 (a) of the Northern Lines
merger, Milwaukee would soon be operating directly into
Portland over Burlington Northern tracks, as it is today.
Granted that Milwaukee had only 1 % of Peninsula's traffic
in 1966 and 1967, the Commission pointed to no evidence
that the Milwaukee share would continue to be
this small after affirmance of the Northern Lines merger.
The next difficulty with the Commission's approach
relates to the potential growth of Peninsula traffic. The
raison d'etre of this litigation has been the possibility that
Peninsula would become the northern access to Rivergate.
As we have already noted, this possibility may be
remote, given the physical limitations of Peninsula's
present facilities. But the Commission nowhere states
that the possibility is too speculative to be considered in
this litigation. The paragraph we have just quoted,
then, reads strangely indeed; for if Peninsula becomes
the northern route into Rivergate, the estimates we have
been given indicate that daily traffic over its line would
increase from the 1967 rate of 30 cars per day to over
300 cars per day, assuming that a roughly equal number
PORT OF PORTLAND v. UNITED STATES 841
811 Opinion of the Court
of cars go out over each of the northern and southern
routes from Rivergate. Yet according to the principle
announced by the Commission, the public interest requires
that Burlington Northern's and UP's 80% share
of this potentially enormous traffic be protected.
Such an approach seems to us to fly in the face of the
well-settled principle that the Commission is obligated to
consider the anticompetitive effects of any § 5 (2) transaction.
McLean Trucking Co. v. United States, 321
U. S. 67, 83-87 (1944); Northern Lines Merger Cases,
396 U. S. 491, 511-516 (1970). It is not necessary to
invoke the precise terms of Condition 24 (a) and decide
their applicability to this case, to take cognizance of the
fact that prior to the Northern Lines merger, Milwaukee
was a weak carrier in the Northern Tier of States. Northern
Lines Merger Cases, 396 U. S., at 504, 514-516.
Condition 24 (a) was not intended to foreclose consideration
of Milwaukee's competitive position vis-a-vis Burlington
Northern in any other proceeding. Both Milwaukee
and SP were entitled to explicit consideration of
their economic positions as compared with that of Burlington
Northern and UP or, at least, a clear statement
why such an inquiry was not appropriate.
Even the one case cited by the Commission in support
of its general principle, Minneapolis, St. P. & S. S. M. R.
Co. Acquisition, 295 I. C. C. 787, 802 ( 1958), undercuts
the Commission's reasoning. There, the Commission denied
applications of other lines for permission to acquire
tracks and to undertake new construction in territory traditionally
served by the Chicago & North Western Railway
Co.; the latter's economic vulnerability made preservation
of its exclusive territory important to the public
interest.
There is no indication in the present case that Burlington
Northern and UP are economically vulnerable, or
that they in any way need their present share of Penin842
OCTOBER TERM, 1971
Opinion of the Court 408 U.S.
sula traffic to serve the public interest. We are confronted
with two railroads that already control one actual
route into Rivergate (via Barnes Yard) and one potential
route (any spur leading off the Burlington Northern-
SP&S main-line tracks), and that now seek to acquire,
for themselves alone, the one remaining route. The
Commission's entire discussion of the anticompetitive
aspects of this acquisition can be summed up as follows:
to the extent that SP and Milwaukee may gain by fourrailroad
ownership of Peninsula, Burlington Northern
and UP will lose; therefore the petitions for inclusion are
denied. We do not approve this approach to the case.
Despite what we have said about the Commission's
apparent reasoning, it does not necessarily follow that the
result it reached was incorrect. Given the uncertainty
about the northern access to Rivergate, and given the apparent
fact that physical operation over Peninsula and
into Rivergate was not at issue, approval of the purchase
by Burlington Northern and UP alone, with the eight
attached conditions, may be the result most in the public
interest at the present time. We note that the Commission
retained jurisdiction over the proceedings.
But it is not the role of this Court to arrive at its own
determination of the public interest on the facts of this
case. Our appellate function in administrative cases is
limited to considering whether the announced grounds for
the agency decision comport with the applicable legal
principles. SEC v. Chenery Corp., 318 U. S. 80, 87-88
(1943). In this proceeding-where the record is already
confused by ambiguities over what was thought to be at
issue-we cannot say that the grounds for the agency
decision are consistent with the "public interest" standard
found in the Interstate Commerce Act. We must
reverse and remand for further proceedings.
PORT OF PORTLAND v. UNITED STATES 843
811 Opinion of the Court
C. Southern Pacific's § 3 (5) Applications
We turn to SP's applications for trackage rights which
would permit it to run trains directly to Peninsula from
East Portland. According to the Commission:
"The intent of Congress in enacting section 3 (5)
was to provide a method of avoiding the necessity
for incurring unnecessary expense in duplicating existing
terminal facilities by a railroad entitled to
serve a particular territory." 334 I. C. C., at 435.
Since SP was "not entitled to serve Peninsula or Rivergate,"
it went on,
"we need not reach the questions of whether common
use of the facilities involved would be practicable
or would substantially impair the ability of
Peninsula and UP to handle their own business."
Id., at 436.
According to the rule applied here, if a railroad is not
"entitled to serve" a particular territory, the Commission
conclusively presumes that granting § 3 (5) rights would
not be in the "public interest." Whether or not such a
per se rule is permissible under § 3 ( 5) strikes us as a
substantial question of statutory construction. For the
following reasons, however, we decline to decide this
question in the instant case and include these § 3 (5)
proceedings in our remand to the Commission.
First, we note that the two cases cited by the Commission
in support of its announced rule, Use of Northern
Pacific Tracks at Seattle by Great Northern, 161 I. C. C.
699 (1930), and Seaboard Air Line R. Co.-Use of Terminal
Facilities of Florida East Coast R. Co., 327 I. C. C.
1 ( 1965), do not directly present the question at issue,
since in each case the Commission decided that the applying
railroad was entitled to serve the area and went
on to grant the requested trackage rights.
844 OCTOBER TERM, 1971
Opinion of the Court 408 u. s.
Second, we note that the Commission's brief now clef
ends the ruling below on broader grounds than those
that were announced. This leads us to doubt the extent
to which the Commission's announced rule is settled
ICC law.
Third, the question of § 3 ( 5) relief may become moot
if the Commission, on remand of the § 5 (2) petitions
for inclusion, reverses itself and requires trackage rights
for SP as a condition for approval of the purchase of
Peninsula, and if the purchase is then consummated.
Fourth, the § 3 ( 5) applications were considered in
close connection with the § 5 (2) petitions for inclusion
by both the Commission and the hearing examiner. We
cannot say with assurance that the Commission would
approach the § 3 ( 5) applications in the same way after
reconsidering the petitions for inclusion in light of Parts
II (A) and (B) of this opinion.
The judgment of the District Court is reversed. The
case is remanded to the District Court with instructions
that it remand to the Interstate Commerce Commission
for further proceedings consistent with this opinion.
MR. JusTICE PowELL and MR. JusTICE REHNQUIST
took no part in the consideration or decision of this case.
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STEWART v. MASSACHUSETTS
Per Curiam
STEW ART v. MASSACHUSETTS
APPEAL FROM THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS
No. 71-5446. Decided June 29, 1972
845
Imposition and carrying out of death penalty in this case held to
constitute cruel and unusual punishment in violation of Eighth
and Fourteenth Amendments. Furman v. Georgia, ante, p. 238.
- Mass. - , 270 N. E. 2d 811, vacated and remanded.
PER CuRIAM.
The appellant in this case was sentenced to death.
The imposition and carrying out of that death penalty
constitutes cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments. Furman v.
Georgia, ante, p. 238. The motion for leave to proceed
in forma pauperis is granted. The judgment is therefore
vacated insofar as it leaves undisturbed the death
penalty imposed, and the case is remanded for further
proceedings.
REPORTER'S NOTE
The next page is purposely numbered 901. The numbers between
845 and 901 were intentionally omitted, in order to make it possible
to publish the orders in the current preliminary print of the United
States Reports with permanent page numbers, thus making the
official citations immediately available.
ORDERS OF JUNE 26 THROUGH JUNE 29, 1972
JUNE 26, 1972
Affirmed on Appeal
No. 70--143. SHAMES ET AL. v. NEBRASKA ET AL. Appeal
from D. C. Neb. Judgment affirmed. MR. JUSTICE
DouGLAS would note probable jurisdiction. Reported
below: 323 F. Supp. 1321.
Appeals Dismissed
No. 71-1063. CAREY v. ELROD ET AL. Appeal from
Sup. Ct. Ill. dismissed for want of substantial federal
question. MR. JusTICE DouGLAS would note probable
jurisdiction. Reported below: 49 Ill. 2d 464, 275 N. E.
2d 367.
No. 71-1093. WEsTENT, INC. v. DEPARTMENT OF ALCOHOLIC
BEVERAGE CONTROL OF CALIFORNIA ET AL. Appeal
from Ct. App. Cal., 1st App. Dist. dismissed for
want of substantial federal question. MR. JUSTICE
DouGLAS would note probable jurisdiction.
No. 71-5302. CAULK ET UX. V. NICHOLS, JUDGE. Appeal
from Sup. Ct. Del. dismissed for want of substantial
federal question. MR. JUSTICE DouGLAS would note
probable jurisdiction. Reported below: - Del.
281 A. 2d 24.
Vacated and Remanded on Appeal
No. 71-1044. RosENFELD v. NEW JERSEY. Appeal
from Super. Ct. N. J. Judgment vMated and case remanded
for reconsideration in light of Cohen v. Cali-
901
902 OCTOBER TERM, 1971
BURGER, C. J., dissenting 408U. S.
Jornia, 403 U.S. 15 (1971), and Gooding v. Wilson, 405
U. S. 518 (1972). Reported below: See 59 N. J. 435,
283 A. 2d 535.
MR. CHIEF JusTICE BuRGER, with whom MR. Jus-
TICE BLACKMUN and MR. JUSTICE REHNQUIST join,
dissenting.*
I am constrained to express my profound disagreement
with what the Court does in these three cases on the basis
of Gooding v. Wilson, 405 U. S. 518 ( 1972).
The important underlying aspect of these cases goes
really to the function of law in preserving ordered liberty.
Civilized people refrain from "taking the law into their
own hands" because of a belief that the government, as
their agent, will take care of the problem in an organized,
orderly way with as nearly a uniform response as human
skills can manage. History is replete with evidence of
what happens when the law cannot or does not provide
a collective response for conduct so widely regarded as
impermissible and intolerable.
It is barely a century since men in parts of this country
carried guns constantly because the law did not afford
protection. In that setting, the words used in these
cases, if directed toward such an armed civilian, could
well have led to death or serious bodily injury. When
we undermine the general belief that the law will give
protection against fighting words and profane and abusive
language such as the utterances involved in these cases,
we take steps to return to the law of the jungle. These
three cases, like Gooding, are small but symptomatic steps.
If continued, this permissiveness will tend further to
erode public confidence in the law-that subtle but indispensable
ingredient of ordered liberty.
*[This opinion applies also to No. 70--5323, Lewis v. City of New
Orleam, post, p. 913, and No. 71-6535, Brown v. Oklahoma, post,
p. 914.]
ORDERS 903
901 POWELL, J ., dissenting
In Rosenfeld's case, for example, civilized people attending
such a meeting with wives and children would not
likely have an instantaneous, violent response, but it does
not unduly tax the imagination to think that some
justifiably outraged parent whose family were exposed
to the foul mouthings of the speaker would "meet him
outside" and, either alone or with others, resort to the
19th century's vigorous modes of dealing with such people.
I cannot see these holdings as an "advance" in
human liberty but rather a retrogression to what men
have struggled to escape for a long time.
MR. JUSTICE PowELL, with whom THE CHIEF JUSTICE
and MR. JUSTICE BLACKMUN join, dissenting.
It has long been established that the First and Fourteenth
Amendments prohibit the States from punishing
all but the most "narrowly limited classes of speech."
Chaplinsky v. New Hampshire, 315 U.S. 568,571 (1942).
The right of free spee<ih, however, has never been held
to be absolute at all times and under all circumstances.
To so hold would sanction invasion of cherished personal
rights and would deny the States the power to
deal with threats to public order. As the Court noted
in C haplinsky:
"[I]t is well understood that the right of free
speech is not absolute at all times and under all
circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention
and punishment of which have never been thought
to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous,
and the insulting or 'fighting' words-those which
by their very utterance inflict injury or tend to
incite an immediate breach of the peace. It has
been well observed that such utterances are no
essential part of any exposition of ideas, and are
904 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
of such slight social value as a step to truth that any
benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.
'Resort to epithets or personal abuse is not
in any proper sense communication of information
or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question
under that instrument.' Cantwell v. Connecticut,
310 U. S. 296, 309-310." 315 U. S., at 571-572.
(Footnotes omitted.)
This case presents an example of gross abuse of the
respected privilege in this country of allowing every
citizen to speak his mind. Appellant addressed a public
school board meeting attended by about 150 people,
approximately 40 of whom were children and 25 of whom
were women. In the course of his remarks he used the
adjective "m----- f------" on four occasions, to describe
the teachers, the school board, the town, and his own
country.
For using this language under these circumstances, appellant
was prosecuted and convicted under a New Jersey
statute which provides:
"Any person who utters loud and offensive or profane
or indecent language in any public street or
other public place, public conveyance, or place to
which the public is invited . . . [i] s a disorderly
person." N. J. Rev. Stat. § 2A:170--29 (1) (1971).
Prior to appellant's prosecution, the Supreme Court of
New Jersey had limited the statute's coverage as follows:
"[T]he words must be spoken loudly, in a public
place and must be of such a nature as to be likely
to incite the hearer to an immediate breach of the
peace or to be likely, in the light of the gender and
age of the listener and the setting of the utterance,
to affect the sensibilities of a hearer. The words
901
ORDERS 905
PowELL, J ., dissenting
must be spoken with the intent to have the above
effect or with a reckless disregard of the probability
of the above consequences." State v. Profaci,
56 N. J. 346, 353, 266 A. 2d 579, 583-584 (1970).
The Court today decides to vacate and remand this
case for reconsideration in light of Gooding v. Wilson,
405 U.S. 518 (1972), and Cohen v. California, 403 U.S.
15 (1971). As it seems to me that neither of these cases
is directly relevant, and that considerations not present
in those cases are here controlling, I respectfully dissent.
Perhaps appellant's language did not constitute "fighting
words" within the meaning of Chaplinsky. While
most of those attending the school board meeting were
undoubtedly outraged and offended, the good taste and
restraint of such an audience may have made it unlikely
that physical violence would result. Moreover, the offensive
words were not directed at a specific individual.
But the exception to First Amendment protection recognized
in Chaplinsky is not limited to words whose mere
utterance entails a high probability of an outbreak of
physical violence. It also extends to the willful use of
scurrilous language calculated to offend the sensibilities
of an unwilling audience.
The Court of Appeals for the District of Columbia
Circuit has addressed this issue more explicitly. Judge
McGowan, vHiting for the court en bane in Williams v.
District of Columbia, 136 U. S. App. D. C. 56, 419 F. 2d
638 ( 1969) , correctly stated:
"Apart from punishing profane or obscene words
which are spoken in circumstances which create a
threat of violence, the state may also have a legitimate
interest in stopping one person from 'inflict[
ing] injury' [Chaplinsky v. New Hampshire,
315 U. S., at 572] on others by verbally assaulting
them with language which is grossly offensive because
of its profane or obscene character. The fact
906 OCTOBER TERM, 1971
PowELL, J., dissenting 408 U.S.
that a person may constitutionally indulge his taste
for obscenities in private does not mean that he
is free to intrude them upon the attentions of others."
Id., at 64, 419 F. 2d, at 646.
I agree with this view that a verbal assault on an
unwilling audience may be so grossly offensive and
emotionally disturbing as to be the proper subject of
criminal proscription, whether under a statute denominating
it disorderly conduct, or, more accurately, a
public nuisance. Judge McGowan further noted in
Willi.ams:
"[A] breach of the peace is threatened either because
the language creates a substantial risk of
provoking violence, or because it is, under 'contemporary
community standards,' so grossly offensive
to members of the public who actually overhear it
as to amount to a nuisance." Ibid. (Footnotes
omitted.)
The Model Penal Code, proposed by the American Law
Institute, also recognizes a distinction between utterances
which may threaten physical violence and those
,vhich may amount to a public nuisance, recognizing that
neither category falls within the protection of the First
Amendment. See Model Penal Code §§ 250.2 (1) ( a)
and (b). ( Proposed Official Draft 1962.)
The decision in Gooding v. Wilson, supra, turned
largely on an application of the First Amendment overbreadth
doctrine,1 and the Court's remand order sug-
1 Insofar as the Court's decision in Gooding turns on vagueness
principles, it seems inapplicable to this case. The essence of the
due process vagueness concern is that no man shall be punished for
Yiola.ting a statute which is not "sufficiently explicit. to inform those
who are subject to it. what conduct on 1heir part will render them
liabl<> to its penalties .... " Connally v. General Construction
Co., 269 U. S. 385, 391 (1926). Although the New Jersey statut<>
ORDERS 907
901 PowELL, J., dissenting
gests that the overbreadth doctrine should be applied in
this case. The consequences and the unusual character
of the overbreadth doctrine have been accurately summarized
in Note, The First Amendment Overbreadth
Doctrine, 83 Harv. L. Rev. 844, 852 (1970):
"[The overbreadth doctrine] results often in the
wholesale invalidation of the legislature's handiwork,
creating a judicial-legislative confrontation.
"In the end, this departure from the normal
method of judging the constitutionality of statutes
must find justification in the favored status of rights
to expres.sion and association in the constitutional
scheme." (Footnotes omitted.)
Because a "judicial-legislative confrontation" often results
from application of the overbreadth doctrine, and
because it is a departure from the normal method of
judicial review,2 it should be applied with restraint. In
my view, the doctrine is not applicable in this case.
The New Jersey statute was designed. to prohibit the
public use of language such as that involved in this case,
and certainly the State has an interest-perhaps a compelling
one-in protecting nonassenting citizens from
vulgar and offensive verbal assaults. A statute directed
narrowly to this interest does not impinge upon the
values of protected free speech. Legitimate First
Amendment interests are not furthered by stretching the
overbreadth doctrine to cover a case of this kind. In
Cohen v. California, 403 U. S. 15 (1971), which deals
involved in this case is hardly a model of clarity, it cannot r('asonably
be said that appellant could have been unaware that the language
used under the circumstances was proscribed by the statute.
Unless he was a person of infirm mentality, appellant certainly knew
that his deliberate use four times of what Mr. Justice Harlan termed
in Cohen a "scurrilous epithet," in the presence of a captive audience
including women and children, violated the statute.
2 See, e. g., United States v. Raines, 362 U.S. 17, 20--22 (1960)
908 OCTOBER TERM, 1971
PowELL, .J., dissenting 408 U.S.
with the question of what expressive activity is constitutionally
punishable, Mr. Justice Harlan described the
purpose of the free speech guarantee as follows:
"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)." Id., at 24.
The purpose of the overbreadth doctrine is to excise
statutes which have a deterrent effect on the exercise
of protected speech.3 It is difficult to believe that sustaining
appellant's conviction under this statute will
deter others from the exercise of legitimate ·First Amendment
rights.•
The line between such rights and the type of conduct
proscribed by the New Jersey statute is difficult to draw.
3 Set> Note, The First Amendment Overbreadth Doctrine, 83 Harv.
L. Rev. 844,853 (1970).
• Nor does the continued existence of the Nrw .Jersey st~tute,
\\'hich must, now be construed and applied by the >l'ew Jersry courts
in light of Gooding, have the rffect of deterring others in the exercise
of their First. Amendment rights. To rrmand this case with
the suggestion that the overbreadth dodrinc be applied 11<•compli~hes
only one result: it creates the potential that apprllant will receive
an undeserved windfall.
I recognize, of course, that serious definitional and ('Ilforeement
problems are likely to arise even where the statutes in this area
are carefully drawn. Yet the inhermt diffic11lty of the problem
is not sufficient reason for legislatur('s and the courts to abdicate
their responsibility to protect nonass('nting citizrns from verbiil
conduct which is so grossly offensive as to amount to a nuisance.
ORDERS 909
901 REHNQUIST, J., dissenting
The preservation of the right to free and robust speech
is accorded high priority in our society and under the
Constitution. Yet, there are other significant values.
One of the hallmarks of a civilized society is the level
and quality of discourse. We have witnessed in recent
years a disquieting deterioration in standards of taste
and civility in speech. For the increasing number of
persons who derive satisfaction from vocabularies dependent
upon filth and obscenities, there are abundant
opportunities to gratify their debased tastes. But our
free society must be flexible enough to tolerate even such
a debasement provided it occurs without subjecting unwilling
audiences to the type of verbal nuisance committed
in this case. The shock and sense of affront, and
sometimes the injury to mind and spirit, can be as
great from words as from some physical attacks.
I conclude in this case that appellant's utterances fall
within the proscription of the New Jersey statute, and
are not protected by the First Amendment. Accordingly,
I would dismiss the appeal for want of a substantial
federal question.
MR. JUSTICE REHNQUIST, with whom THE CHIEF Jus-
TICE and MR. JusTICE BLACKMUN join, dissenting.*
In Lewis, the police were engaged in making an arrest
of appellant's son on grounds not challenged here.
While the police were engaged in the performance of
their duty, appellant intervened and ultimately addressed
the police officers as "g-- d-- m----- f----- police."
At that point she herself was arrested for violation of a
city ordinance providing:
"It shall be unlawful and a breach of the peace
for any person wantonly to curse or revile or to
*[This opinion applies also to No. 70-5323, Leu,is v. City of
New Orleans, post, p. 913, and ~o. 71-6535, Brown v. Oklahoma,
post, p. 914.]
910 OCTOBER TERM, 1971
REHNQVIST, J ., dissenting 408 U.S.
use obscene or opprobrious language toward or with
reference to any member of the city police while
in the actual performance of his duty." § 49-7,
Code of City of New Orleans.
In Rosen! eld, appellant appeared and spoke at a public
school board meeting that was held in an auditorium
and was attended by more than 150 men, women,
and children of mixed ethnic and racial backgrounds.
lt was estimated that there were approximately 40 children
and 25 women present at the meeting. During his
speech, appellant used the adjective "m----- f-----" on
four different occasions while concluding his remarks.
Testimony varied as to what particular nouns were joined
with this adjective, but they were said to include
teachers, the community, the school system, the school
board, the country, the county, and the town.
Rosenfeld was convicted under a New Jersey statute
that provides:
"Any person who utters loud and offensive or profane
or indecent language in any public street or
other public place, public conveyance, or place to
which the public is invited ... [i]s a disorderly
person." N. J. Rev. Stat. § 2A:170-29 (1) (1971).
The New Jersey Supreme Court, prior to the instant
case, had placed the following limiting construction on
the New Jersey statute:
"[T]he words must be spoken loudly, in a public
place and must be of such a nature as to be likely
to incite the hearer to an immediate breach of
the peace or to be likely, in the light of the gender
and age of the listener and the setting of the utterance,
to affect the sensibilities of a hearer. The
words must be spoken with the intent to have the
above effect or with a reckless disregard of the
probability of the above consequences." State v.
901
ORDERS 911
REHNQUIST, J ., dissenting
Profaci, 56 N. J. 346, 3.53, 266 A. 2d 579, 583-584
(1970).
Appellant in Brown spoke to a large group of men and
women gathered in the University of Tulsa chapel. During
a question and answer period he referred to some
policemen as "m----- f----- fascist pig cops" and to a particular
Tulsa police officer as that "black m----- f-----
pig .... " Brown was convicted of violating an Oklahoma
statute that prohibited the utterance of "any
obscene or lascivious language or word in any public
place, or in the presence of females .... " Okla. Stat.
Ann., Tit. 21, § 906 (195-8).
The Court vacates and remands these cases for reconsideration
in the light of Gooding v. Wilson, 405
U. S. 518 (1972), and Cohen v. California, 403 U. S.
15 ( 1971) ( the latter decided some four months before
the opinion of the New Jersey Superior Court, Appellate
Division, which upheld Rosenfeld's conviction, and six
months before that of the Oklahoma Court of Criminal
Appeals in Brown).
Insofar as the Court's remand is based on Cohen,
supra, for the reasons stated in MR. JUSTICE BLACKMUN's
dissenting opinion in that case, id., at 27, I would
not deny to these States the power to punish language of
the sort used here by appropriate legislation. Appellant
Lewis' words to the police officers were "fighting words,"
and those of appellants Rosenfeld and Brown were "lewd
and obscene" and "profane" as those terms are used in
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the
leading case in the field. Delineating the type of language
that the States may constitutionally punish, the
Court there said:
"There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment
of which have never been thought to raise
912 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 408 U.S.
any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and
the insulting or 'fighting' words-those which by
their very utterance inflict injury or tend to incite
an immediate breach of the peace. It has been
well observed that such utterances are no essential
part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed
by the social interest in order and morality.
'Resort to epithets or personal abuse is not in any
proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment
as a criminal act would raise no question
under that instrument.' Cantwell v. Connecticut,
310 U. S. 296, 309-310." 315 U. S., at 5,71-572.
The language used by these appellants therefore clearly
falls within the class of punishable utterances described
in Chaplinsky.
Gooding v. Wilson, supra, dealt both with the type
of speech that the States could constitutionally punish,
and the doctrine of First Amendment overbreadth. With
respect to the latter, the Court said:
"The constitutional guarantees of freedom of
speech forbid the States to punish the use of words
or language not within 'narrowly limited classes of
speech.' Chaplinsky v. New Hampshire, 315 U. S.
568, 571 (1942). Even as to such a class, however,
because 'the line between speech unconditionally
guaranteed and speech which may legitimately
be regulated, suppressed, or punished is finely
drawn,' Speiser v. Randall, 357 U. S. 513, 525 ( 1958),
'[i]n every case the power to regulate must be so
exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom,' CantORDERS
913
408U.S. June 26, 1972
well v. Connecticut, 310 U. S. 296, 304 (1940). In
other words, the statute must be carefully drawn
or be authoritatively construed to punish only unprotected
speech and not be susceptible of application
to protected expression." Id., at 521-522.
Unless we are to distort the doctrine of overbreadth
into a verbal game of logic-chopping and sentence-parsing
reminiscent of common-law pleading, it cannot fairly
be said here that either the New Orleans ordinance, or
the New Jersey statute as construed by the highest court
of that State, could reasonably be thought "unduly to
infringe the protected freedom," Cantwell v. Connecticut,
310 U. S., at 304.
I would dismiss these appeals for lack of a substantial
federal question.
No. 70-5323. LEWIS v. C1TY OF NEW ORLEANS. Appeal
from Sup. Ct. La. Motion for leave to proceed in
forrna pauperis granted. Judgment vacated and case remanded
for reconsideration in light of Gooding v. Wilson,
405 u. s. 518 (1972).
MR. JuSTICE POWELL, concurring in the result.
Under Chaplinsky v. New Hampshire, 315 U. S. 568
(1942), the issue in a case of this kind is whether "fighting
words" were used. Here a police officer, while in the
performance of his duty, was called "g-- d--- m------
f-----" police.
If these words had been addressed by one citizen to
another, face to face and in a hostile manner, I would
have no doubt that they would be "fighting words." But
the situation may be different where such words are addressed
to a police officer trained to exercise a higher
degree of restraint than the average citizen. See Model
Penal Code § 250.1, Comments 14 (Tent. Draft No. 13,
1961).
914 OCTOBER TERM, 19il
June 26, 1972 408 U.S.
I see no genuine overbreadth problem in this case for
the reasons stated in my dissenting opinion in Rosenfeld
v. New Jersey, ante, p. 903.
I would remand for reconsideration only in light of
Chaplinsky.
[For dissenting opinion of MR. CHIEF JuSTICE BURGER,
see ante, p. 902.]
(For dissenting opinion of MR. JusTICE REHNQUIST,
see ante, p. 909.]
No. 71-6535. BROWN v. OKLAHOMA. Appeal from
Ct. Crim. App. Okla. Motion for leave to proceed in
forma pauperis granted. Judgment vacated and case
remanded for reconsideration in light of Cohen v. California,
403 U.S. 15 (1971), and Gooding v. fVilson, 405
U. S. 518 (1972). Reported belO\v: 492 P. 2d 1106.
MR. JusTICE Po,VELL, concurring in the result.
The statute involved in this case is considerably broader
than the statute involved in Rosenfeld v. New Jersey,
ante, p. 901, and it has not been given a narrowing construction
by the Oklahoma courts. Moreover, the papers
filed in this case indicate that the language for which
appellant was prosecuted was used in a political meeting
to which appellant had been invited to present the Black
Panther viewpoint. In these circumstances language of
the character charged might well have been anticipated
by the audience.
These factors lead me to conclude that this case is
significantly different from Rosenfeld v. New Jersey,
supra. I therefore concur in the Court's disposition of
this case.
[For dissenting opinion of MR. CHIEF JusncE BURGER,
see ante, p. 902.]
[For dissenting opinion of MR. JusTICE REHNQUIST,
see ante, p. 909.]
ORDERS 915
408U.S. June 28, 1972
Certiorari Granted-Reversed. (See No. 71-5625, ante,
p. 229; and No. 71-6497, ante, p. 234.)
Certiorari Granted-Remanded or Vacated and Remanded.
No. 70--5125. CLARK v. Bosww, INSTITUTION DIRECTOR.
C. A. 4th Cir. Motion for leave to proceed in
forrna pauperis and certiorari granted. Judgment vacated
and case remanded for further consideration in
light of McNeil v. Director, Patuxent Institution, 407 u. s. 245.
No. 70--5336. FARRELL v. ScHMIDT, SECRETARY, DEPARTMENT
OF HEALTH AND SocIAL SERVICES, ET AL. Sup.
Ct. Wis. Motion for leave to proceed in f orma pauperis
and certiorari granted. Judgment vacated and case remanded
for further consideration in light of Humphrey
v. Cady, 405 U. S. 504.
No. 71-239. FERGUSON, U. S. DISTRICT JUDGE V.
UNITED STATES. Certiorari before judgment to C. A. 9th
Cir. Certiorari granted and case remanded for further
consideration in light of United States v. United States
District Court for the Eastern District of Michigan
(Plamondon et al., Real Parties in Interest), 407 U. S.
297.
No. 71-1028. CAMPOPIANO v. UNITED STATES. C. A.
2d Cir. Certiorari granted. Judgment vacated and case
remanded for further consideration in light of Barker v.
Wingo, Warden, 407 U. S. 514. Reported below: 446
F. 2d 869.
No. 71- 5100. BACON v. UNITED STATES. C. A. 9th
Cir. Motion for leave to proceed in forma pauperis and
certiorari granted. Judgment vacated and case remanded
for further consideration in light of Gelbard v.
United States, and United States v. Egan, ante, p. 41.
Reported below: 446 F. 2d 667.
916 OCTOBER TERl\-1, 1971
June 26, 1972 408 u. s.
No. 71-847. SAGLIMBENE v. UNITED STATES. C. A.
2d Cir. Certiorari granted. Judgment vacated and case
remanded for further consideration in light of Barker v.
Wingo, W a.rden, 407 U. S. 514.
No. 71-5040. McKENZIE v. DIRECTOR, PATUXENT INSTITUTION.
Ct. Sp. App. Md. Petition for rehearing
granted and order of November 22, 1971 [ 404 U. S. 979],
denying petition for writ of certiorari vacated. Motion
for leave to proceed in forma pauperis and certiorari
granted. Judgment vacated and case remanded for further
consideration in light of McNeil v. Director, Pa.tuxent
Institution, 407 U. S. 245. MR. Jl;"STICE DouGLAS
would grant certiorari and reverse in light of McNeil v.
Director, Pa.tuxent Institution, supra..
No. 71-5672. OLSEN v. UNITED STATES. C. A. 9th
Cir. Motion for leave to proceed in f orma pauperis and
certiorari granted. Judgment vacated and case remanded
for further consideration in light of Gelbard v.
United States, and United States v. Egan, ante, p. 41.
Reported below; 446 F. 2d 912.
No. 71-6196. KELLEY v. KENTUCKY. Ct. App. Ky.
Motion for leave to proceed in forma pauperis and certiorari
granted. Judgment vacated and case remanded
for further consideration in light of Barker v. Wingo,
Warden, 407 U. S. 514. Reported below: 474 S. W.
2d 63.
No. 71- 6337. FASANARO v. UNITED STATES. C. A. 2d
Cir. Motion for leave to proceed in forma pauperis and
certiorari granted. Judgment vacated and case remanded
for further consideration in light of Barker v.
Wingo, Warden, 407 U. S. 514.
ORDERS 917
408 U.S. June 26, 1972
Miscellaneous Orders
No. 35, Orig. UNITED STATES v. MAINE ET AL. [Motion
for leave to file bill of complaint granted, 395 U. S.
955.] Motion of Commonwealth of Massachusetts for a
preliminary injunction denied. MR. JusTICE DouGLAS
took no part in the consideration or decision of this
motion.
No. 40, Orig. PENNSYLVANIA v. NEW YORK ET AL.,
407 U. S. 206. It is ordered that the expenditures of
John F. Davis as Special Master in the amount of $626.54
be approved. It is further ordered that the balance of
advances made by the parties to meet expenses in the
amount of $1,373.46 be retained by the Special Master
and applied toward his compensation. It is further
ordered that the total compensation for the Special
Master be fixed at ten thousand five hundred dollars
($10,500) and that that amount, less the balance of the
money advanced for expenses, shall be paid to him by
Western Union out of the funds in its possession which
are the subject of this suit and that Western Union be
given credit for that amount divided pro rata among the
parties who would otherwise be entitled to the money
under the opinion and decree of this Court.
No. 50, Orig. VERMONT v. NEW YORK ET AL. [Motion
to file bill of complaint granted, 406 U. S. 186.] It
is ordered that Justice R. Ammi Cutter (retired) be, and
he is hereby, appointed Special Master to conduct supplemental
proceedings in this case. The Special Master
shall have authority to fix the time and conditions for
filing additional pleadings and to direct subsequent proceedings,
and authority to summon witnesses, issue subpoenas,
and take such evidence as may be introduced and
such as he may deem it necessary to call for. The
918 OCTOBER TERM, 1971
June 26, 1972 408 U.S.
Master is directed to submit such reports as he may deem
appropriate.
The Master shall be allowed his actual expenses. The
allowances to him , the compensation paid to his technical,
stenographic, and clerical assistants, the cost of
printing his reports, and all other proper expenses shall
be charged against and be borne by the parties in such
proportion as the Court may hereafter direct.
It is further ordered that if the position of Special
Master becomes vacant during the recess of the Court ,
THE CHIEF JvsTICE shall have authority to make a new
designation which shall have the same effect as if originally
made by the Court herein.
Xo. 54, Orig. l'NITED STATES v. FLORIDA ET AL. [:vlotion
to file bill of complaint granted, 405 U. S. 984.]
Motion to clef er consideration denied. Motion of the
State of Texas for appointment of a Special :Master
granted. It is ordered that Honorable Charles L. Powell,
Senior Judge of the 1:-nited States District Court for the
Eastern District of Washington, be, and he is hereby,
appointed Special Master in this case. The Special
Master shall have authority to fix the time and conditions
for filing additional pleadings and to direct subsequent
proceedings, and authority to summon witnesses,
issue subpoenas, a11d take such evidence as may be introduced
and such as he may deem it necessary to call
for. The Master is directed to submit such reports as
he may deem appropriate.
The Master shall be allowed his actual expenses. The
allowances to him, the compensation paid to his technical,
stenographic, and clerical assistants, the cost of
printing his reports, and all other proper expenses shall
be charged against and be borne by the parties in such
proportion as the Court may hereafter direct.
It is further ordered that if the position of Special
Master becomes vacant during the recess of the Court,
ORDERS 919
408U.S. June 26, 1972
THE CHIEF JUSTICE shall have authority to make a new
designation which shall have the same effect as if originally
made by the Court herein.
No. 70-2. GNITED STATES v. 12 200-FT. REELS OF
SUPER 8MM. FILM ET AL. (PALADINI, CLAIMANT). Appeal
from D. C. C. D. Cal. [Probable jurisdiction
noted, 403 U. S. 930];
No. 70-18. RoE ET AL. v. WADE, DISTRICT ATTORNEY
OF DALLAS Cot:NTY. Appeal from D. C. N. D. Tex.
[Probable jurisdiction postponed, 402 U. S. 941];
No. 70-40. DoE ET AL. v. BOLTON, ATTORNEY GENERAL
OF GEORGIA, ET AL. Appeal from D. C. N. D. Ga.
[Probable jurisdiction postponed, 402 U. S. 941];
Ko. 70-69. UNITED STATES v. OmTo. Appeal from
D. C. E. D. \Vis. [Probable jurisdiction noted, 404 U.S.
819]; and
No. 70-73. MrLLEH v. CALIFORNIA. Appeal from
App. Dept., Super. Ct. Cal., County of Orange. [Probable
jurisdiction noted, 401 U. S. 992.] These cases are
restored to the calendar for reargument. MR. Jc-STICE
DouGLAS dissents in Nos. 70--18 and 70-40.
No. 70--35. At:STIN ET AL. v. MEYER ET AL. Appeal
from D. C. M. D. Fla. Motion of appellees to vacate
stay heretofore granted by Mr. Justice Black on August
31, 1970, presented to Mn. Jl:STICE PowELL, and by him
referred to the Court, granted. MR. JUSTICE DouGLAS
took no part in the consideration or decision of this
motion. Reported below: 319 F. Supp. 457.
No. 71- 1398. \VARNER, SECRETARY OF THE NAVY v.
FLEMINGS. C. A. 2d Cir. [Certiorari granted, 407 U. S.
919.J Motion of respondent for appointment of counsel
granted. It is ordered that Michael Meltsner, Esquire,
of Kew York, New York, a member of the Bar
of this Court, be, and he is hereby, appointed to serve
as counsel for respondent in this case.
920 OCTOBER TERM, 1971
June 26, 1972 408U.S.
No. 71-1447. DAvrnsoN, SECRETARY, MARYLAND DEPARTMENT
OF EMPLOYMENT AND SOCIAL SERVICES, ET AL.
v. FRANCIS ET AL.; and
Xo. 71-1554. UNITED STATES CHAMBER OF CoMMERCE
v. FRANCIS ET AL. Appeals from D. C. Md. The
Solicitor General is invited to file a brief in these cases
expressing the views of the United States. Reported below:
340 F. Supp. 351.
No. 71-6633. VALDEZ v. NELSON, WARDEN. Motion
for leave to file petition for writ of habeas corpus denied.
Xo. 71-6620. HEADLEY ET AL. v. PALMIERI, U. S.
DISTRICT JUDGE; and
No. 71-6645. REED v. LAWRENCE, U. S. DISTRICT
JL"DGE. Motions for leave to file petitions for writs of
mandamus denied.
No. 71-1437. \VHITCOMB, GovERNOR OF INDIANA, ET
AL. v. EscHBACH, U. S. DISTRICT JuDGE. Motion of
Gaither and Roth [plaintiffs in related case] for leave to
proceed in f orma pauperis granted. Motion for leave to
file petition for writ of prohibition and/ or mandamus
denied.
Probable Jurisdiction Noted
No. 71-653. GrnsoN ET AL. v. BERRYHILL ET AL. Appeal
from D. C. M. D. Ala. Probable jurisdiction noted.
Reported below: 331 F. Supp. 122.
Xo. 71- 1456. SALYER LAND Co. ET AL. v. TuLARE LAKE
BASIN WATER STORAGE DISTHICT. Appeal from D. C.
E. D. Cal. Probable jurisdiction noted. Reported below:
342 F. Supp. 144.
No. 71-575. GOMEZ v. PEREZ. Appeal from Ct. Civ.
App. Tex., 4th Sup. Jud. Dist. Probable jurisdiction
noted and case set for oral argument with No. 71-6078
[S. v. D., probable jurisdiction postponed, 405 U. S.
1064]. Reported below: 466 S. W. 2d 41.
ORDERS 921
408U. S. June 26, 1972
Certiorari Granted
No. 71-1422. KAPLAN v. CALIFORNIA. App. Dept.,
Super. Ct. Cal., County of Los Angeles. Certiorari
granted. Reported below: 23 Cal. App. 3d Supp. 9, 100
Cal. Rptr. 372.
No. 71-1051. PARIS AouLT THEATRE I ET AL. v. SLATON,
DISTRICT ATTORNEY, ATLANTA JUDICIAL CIRCUIT, ET AL.
Sup. Ct. Ga. Motion to supplement petition and
certiorari granted. Parties requested to brief and argue,
in addition to those questions presented in the petition,
the following question: "Whether the display of
any sexually oriented films in a commercial theatre, when
surrounded by notice to the public of their nature and
by reasonable protection against exposure of the films
to juveniles, is constitutionally protected?" Reported
below: 228 Ga. 343, 18.5 S. E. 2d 768.
No. 71-1225. GAGNON, WARDEN v. SCARPELLI. C. A.
7th Cir. Motion of respondent for leave to proceed in
forma pauperis and certiorari granted. Motion of respondent
for appointment of counsel granted. It is
ordered that \Villiam M. Coffey, Esquire, of Milwaukee,
Wisconsin, a member of the Bar of this Court, be, and
he is hereby, appointed to serve as counsel for respondent
in this case. Reported below: 454 F. 2d 416.
No. 71-1315. ALEXANDER ET AL. v. VIRGINIA. Sup.
Ct. Va. Certiorari granted. Parties are requested to
brief and argue in addition to those questions presented
in the petition the following question: "Whether the
display of any sexually oriented pictorial magazines for
commercial sale, when surrounded by notice to the public
of their nature and by reasonable protection against exposure
of the magazines to juveniles, is constitutionally
protected?" Reported below: 212 Va. 554, 186 S. E.
2d 43.
922 OCTOBER TERM, 19-71
June 26, 1972 408 U.S.
No. 71-6193. BROWN ET AL. v. UNITED STATES. C. A.
6th Cir. Motion for leave to proceed in Jorma pauperi.s
and certiorari granted. Reported below: 452 F. 2d 868.
No. 71-6356. DoE ET AL. v. McMILLAN ET AL. C. A.
D. C. Cir. Motion for leave to proceed in forma pauperis
and certiorari granted. Reported below: 148 1:. S. App.
D. C. 280, 459 F. 2d 1304.
No. 71 6316. GoosBY ET AL. v. OssEn ET AL. C. A.
3d Cir. Motion of American Jewish Committee (National)
et al. for leave to file a brief as arnici curiae
granted. Motion for leave to proceed in forma pauperi.s
and certiorari granted. Reported below: 452 F. 2d 39.
Certiorari D enied
No. 71 379. REED V. rNITED STATES. c. A. 9th Cir.
Certiorari denied. Reported below: 448 F. 2d 1276.
No. 71-405. EGAN v. PNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 450 F. 2d 199.
o. 71- 1058. BECKMAN v. WALTER KIDDE & Co., INC.,
ET AL. C'. A. 2d Cir. Certiorari denied. Reported below:
451 F. 2d 593.
No. 71- 1121. PETREE v. GEORGIA. Ct. App. Ga. Certiorari
denied. Reported below: 124 Ga. App. 670, 185
S. E. 2d 562.
No. 71-1123. RAFFERTY ET u x. v. COMMISSIONER OF
INTERNAL REVENUE. C . A. 1st Cir. Certiorari denied.
Reported below: 452 F. 2d 767.
No. 71 - 1214. STEIN v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 456 F. 2d 844.
No. 71 - 1313. HAM ET AL. v. ROMNEY, SEC RETARY OF
HOUSING AND CRBAN DEVELOPMENT, ET AL. C. A. 5th
Cir. Certiorari denied. Reported below: 455 F. 2d 607.
ORDERS 923
408U.S. June 26, 1972
No. 71-1316. CRENSHAW, EXECUTOR v. UNITED
STATES. C. A. 5th Cir. Certiorari denied. Reported
below: 450 F. 2d 4 72.
No. 71-1327. SCHWARTZ ET AL. v. UNITED STATES.
C. A. 2d Cir. Certiorari denied.
No. 71-1329. WARZYNIAK v. UNITED STATES. C. A.
7th Cir. Certiorari denied.
No. 71-1330. KATZ v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 455 F. 2d 496.
No. 71-1333. \VoLFE v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 457 F. 2d 773.
No. 71-1343. RossI v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 453 F. 2d 752.
No. 71-1349. BROWN v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 456 F. 2d 569.
No. 71-1351. P.1ENNEMAN v. UNITED STATES. C. A.
3d Cir. Certiorari denied. Reported below: 455 F. 2d
809.
Xo. 71-1409. UNITED STATES STEEL CORP. ET AL. v.
UNITED MINE WORKERS OF AMERICA ET AL. c. A. 3d
Cir. Certiorari denied. Reported below: 456 F. 2d 483.
No. 71-1421. BELL v. TAYLOR, ExECUTOR. Ct. App.
Cal., 2d App. Dist. Certiorari denied. Reported below:
21 Cal. App. 3d 1002, 98 Cal. Rptr. 855.
No. 71-1423. GREENE v. REAL ESTATE COMMISSION
OF THE DISTRICT OF COLUMBIA. Ct. App. D. C. Certiorari
denied.
No. 71-1425. CENTRAL PENN NATIONAL BANK ET AL.
V. TRUSTEES OF THE PROPERTY OF THE PENN CENTRAL
TRANSPORTATION Co. C. A. 3d Cir. Certiorari denied.
Reported below: 453 F. 2d 520.
924 OCTOBER TERM, 1971
June 26, 1972 408U. S.
No. 71-1430. SEAMAN, DBA LEs's ROLLER RINK ET AL.
v. EVANS. C. A. 5th Cir. Certiorari denied. Reported
below: 452 F. 2d 749.
No. 71-1443. CALIFORNIA DEPARTMENT OF HUMAN
RESOURCES DEVELOPMENT ET AL. v. CROW ET AL. Petition
for certiorari before judgment to C. A. 9th Cir.
Certiorari denied.
No. 71-1444. BLUM v. PENNSYLVANIA. Sup. Ct. Pa.
Certiorari denied.
No. 71-1446. HUTTER ET AL. v. DooR CouNTY, WISCONSIN,
ET AL. C. A. 7th Cir. Certiorari denied.
No. 71- 1449. GOLDEN ET AL. v. THE SHEARMAN ET AL.
C. A. 4th Cir. Certiorari denied. Reported below: 455
F. 2d 133.
No. 71-1450. POFF v. DEPARTMENT OF ALCOHOLIC
BEVERAGE CONTROL OF CALIFORNIA ET AL. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 71-1454. BRENNAN ET AL. V. HAINES ET AL. C. A.
3d Cir. Certiorari denied. Reported below: 455 F. 2d
943.
No. 71-1461. CAD0UX V. PLANNING AND ZONING COMMISSION
OF THE TowN OF WESTON. Sup. Ct. Conn.
Certiorari denied. Reported below: 162 Conn. 425, 294
A. 2d 582.
No. 71-1550. McFERRIN v. LUBBOCK NATIONAL BANK.
C. A. 5th Cir. Certiorari denied. Reported below: 455
F. 2d 991.
No. 71-5737. REYNOLDS v. UNITEQ STATES. C. A.
9th Cir. Certiorari denied. Reported below: 449 F. 2d
1347.
No. 71 - 5881. MOLTER v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied.
ORDERS 925
408 U.S. June 26, 1972
No. 71-1541. SusQrEHANNA CoRP. v. DAsHo, ExEcu-
TRIX, ET AL. ;
No. 71-1542. BOGAN ET AL. v. DAsHo, EXECUTRIX,
ET AL.; and
No. 71-1543. HARDIN ET AL. v. DASHo, EXECUTRIX,
Er AL. C. A. 7th Cir. Certiorari denied. Reported below:
461 F. 2d 11.
No. 71-6189. CANNON v. MISSOURI. C. A. 8th Cir.
Certiorari denied.
No. 71-6232. BROWN V. CLARK, \VARDEN' ET AL.
C. A. 5th Cir. Certiorari denied.
No. 71-6241. SIIRILA v. MINNESOTA. Sup. Ct. Minn.
Certiorari denied. Reported below: 292 Minn. 1, 193
N. W. 2d 467.
No. 71-6247. NICKERSON v. NoRTH CAROLINA. Sup.
Ct. N. C. Certiorari denied. Reported below: See 13
N. C. App. 125, 185 S. E. 2d 326.
No. 71-6262. NrcKOLS v. GAGNON. C. A. 7th Cir.
Certiorari denied. Reported below: 454 F. 2d 467.
No. 71-6295. SIMPSON v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 453 F. 2d 1028.
No. 71-6299. CANCINO v. UNITED STATES. Ct. Cl.
Certiorari denied. Reported below: 196 Ct. Cl. 568, 451
F. 2d 1028.
No. 71-6302. SANDERS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 71-6342. WALTON v. VIRGINIA. C. A. 4th Cir.
Certiorari denied.
No. 71- 6433. SANDERS v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
926 OCTOBER TERM, 1971
June 26, 1972
No. 71-6491. BURNETTE v. UNITED STATES;
No. 71-6501. GRAY v. UNITED STATES; and
408 u. s.
No. 71-6505. WILKERSON v. UNITED STATES. C. A.
6th Cir. Certiorari denied. Reported below: 456 F. 2d
57.
No. 71-6492. GurrERREz-RuBio v. IMMIGRATION AND
NATURALIZATION SERVICE. C. A. 5th Cir. Certiorari denied.
Reported below: 453 F. 2d 1243.
No. 71-6504. ZURITA v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
No. 71-6507. WALLER v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 456 F. 2d 132.
No. 71-6513. LANDMAN v. CLARK, WARDEN. C. A.
5th Cir. Certiorari denied. Reported below: 456 F. 2d
215.
No. 71-6525. SPENCER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 456 F. 2d 1202.
No. 71-6527. DuRHAM v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 71-6574. McGuCKEN v. UNITED STATES. Ct. Cl.
Certiorari denied. Reported below: 197 Ct. Cl. 965.
No. 71-6601. ALLEN v. WoRRALL. C. A. 4th Cir.
Certiorari denied.
No. 71-6604. BoAG v. Borns, SHERIFF, ET AL. C. A.
9th Cir. Certiorari denied. Reported below: 455 F. 2d
467.
No. 71-6607. INGRAM v. ARKANSAS. C. A. 8th Cir.
Certiorari denied.
No. 71-6609. SzwALLA v. NEw YORK. Ct. App. N. Y.
Certiorari denied.
ORDERS 927
408 U.S. June 26, 1972
Ko. 71-6613. HAYES v. CovLON ET AL. C. A. 6th Cir.
Certiorari denied .
• o. 71-6621. NIXON V. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported below: 456
F. 2d 1065.
No. 71-6622. KEY v. UNITED STATES. C. A. 10th Cir.
Certiorari denied. Reported below: 458 F. 2d 1189.
Xo. 71 - 6623. MORNINGSTAR V. CALIFORNIA. App.
Dept., Super. Ct. Cal., County of Riverside. Certiorari
denied.
Ko. 71-6626. LOGAN v. NEw YORK. App. Div., Sup.
Ct. N. Y. , 2d Jud. Dept. Certiorari denied.
No. 71-6630. PILLIS ET AL. v. STATE BoARD OF ELECTIONS
ET AL. C. A. 4th Cir. Certiorari denied.
No. 71-6632. HAMILTON v. WARDEN, MARYLAND PENITENTIARY.
C. A. 4th Cir. Certiorari denied.
No. 71-6635. JONES v. INDIANA. Sup. Ct. Ind. Certiorari
denied. Reported below: 244 Ind. 682, 195 N. E.
2d 460.
No. 71-6636. HARDIN v. TEXAS. Ct. Crim. App. Tex.
Certiorari denied. Reported below: 475 S. W. 2d 254.
No. 71-6638. THORNHILL v. SLAYTON, PENITENTIARY
SUPERINTENDENT. C. A. 4th Cir. Certiorari denied.
Ko. 71-6642. LAHY v. TEXAS. Ct. Crim. App. Tex.
Certiorari denied. Reported below: 475 S. \\r. 2d 248.
No. 71-6652. ROTH v. ZELKER, CORRECTIONAL SUPERINTENDENT.
C. A. 2d Cir. Certiorari denied. Reported
below: 455 F. 2d 1105.
No. 71-6655. SMITH v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
928 OCTOBER TERM, 1971
June 26, 1972 408 U.S.
No. 71-6661. MILES v. GRAHAM. C. A. 4th Cir.
Certiorari denied.
No. 71-6721. SwINTON v. RosE, WARDEN. C. A. 6th
Cir. Certiorari denied.
No. 7~5035. DICKERSON v. RUNDLE, CORRECTIONAL
SUPERINTENDENT. C. A. 3d Cir. Certiorari denied.
MR. JUSTICE DouGLAS is of the opinion that certiorari
should be granted. Reported below: 430 F. 2d 462.
No. 7~5077. BRUMFIELD v. HENDERSON, WARDEN.
C. A. 5th Cir. Certiorari denied. MR. JusTICE DouGLAS
is of the opinion that certiorari should be granted. Reported
below: 436 F. 2d 1080.
No. 71-1344. DETORE, AKA HAYES v. UNITED STATES.
C. A. 2d Cir. Certiorari denied. MR. JusTICE DouGLAS
is of the opinion that certiorari should be granted.
No. 71-1383. PooLEY v. MrssrsSIPPI. Sup. Ct. Miss.
Certiorari denied. MR. JUSTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
257 So. 2d 212.
No. 71-1427. WILSON v. INDIANA. Sup. Ct. Ind.
Certiorari denied. MR. JusncE DOUGLAS is of the opinion
that certiorari should be granted. Reported below:
278 Ind. 569, 278 N. E. 2d 569.
No. 71-1433. BELLISTON ET AL. V. TEXACO INC. C. A.
10th Cir. Certiorari denied. MR. JUSTICE DOUGLAS is
of the opinion that certiorari should be granted. Reported
below: 455 F. 2d 17 5.
No. 71-1475. WILSON v. DEITZ, COMMISSIONER, DEPARTMENT
OF ECONOMIC SECURITY, DIVISION OF PUBLIC
ASSISTANCE, OF KENTUCKY. C. A. 6th Cir. Certiorari
denied. MR. JusTICE DouGLAS is of the opinion that
certiorari should be granted. Reported below: 456 F. 2d
314.
ORDERS 929
408U.S. June 26, 1972
No. 71-1503. DESOTO, INC. v. CATAPHOTE CORP. ET AL.
C. A. 9th Cir. Certiorari denied. MR. JusTrCE DOUGLAS
is of the opinion that certiorari should be granted. Reported
below: 450 F. 2d 769.
No. 71-1513. Russo v. BYRNE, U.S. DISTRICT JuDGE.
C. A. 9th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
is of the opinion that certiorari should be granted.
No. 71-5121. BAKER v. TOLLETT, WARDEN. C. A. 6th
Cir. Certiorari denied. MR. JusTICE DouGLAS is of the
opinion that certiorari should be granted.
No. 71-6210. ANSLEY v. GEORGIA. Ct. App. Ga.
Certiorari denied. MR. JusTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
124 Ga. App. 670, 185 S. E. 2d 562.
No. 71-6340. ROBINSON v. FLORIDA. Dist. Ct. App.
Fla., 3d Dist. Certiorari denied. MR. JusrICE DouGLAS
is of the opinion that certiorari should be granted. Reported
below: 256 So. 2d 29.
No. 71-63.50. LEWIS v. MICHIGAN. Sup. Ct. Mich.
Certiorari denied. MR. JusTICE DOUGLAS is of the opinion
that certiorari should be granted. Reported below:
386 Mich. 407, 192 N. W. 2d 215.
No. 71-6596. EVANS v. SWENSON, WARDEN. C. A.
8th Cir. Certiorari denied. MR. JUSTICE DouGLAS is
of the opinion that certiorari should be granted. Reported
below: 455 F. 2d 291.
No. 71-6618. BOGDAN v. RODRIGUEZ, WARDEN. C. A.
10th Cir. Certiorari denied. MR. JusTICE DouGLAS is
of the opinion that certiorari should be granted.
No. 71-6628. GOETZ v. OREGON. Sup. Ct. Ore. Certiorari
denied. MR. JUSTICE Dou GLAS is of the opinion
that certiorari should be granted. Reported below:
See 7 Ore. App. 515, 491 P. 2d 220.
930 OCTOBER TERM, 1971
June 26, 1972 408 U.S.
No. 71-256. UNITED STATES v. EVANS ET AL. C. A.
D. C. Cir. Motion of respondents for leave to proceed
in forma pauperis granted. Certiorari denied. Reported
below: 146 U. S. App. D. C. 310, 452 F. 2d 1239.
No. 71-1340. NEW YoRK DrsrnrcT CouNCIL No. 9,
INTERNATIONAL BROTHERHOOD OF PAINTERS & ALLIED
TRADES, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD
ET AL. C. A. 2d Cir. Certiorari denied. MR. JUSTICE
BRENNAN and MR. JUSTICE WHITE are of the opinion
that certiorari should be granted. Reported below: 453
F. 2d 783.
No. 71-1411. Lu v. SIDA OF HAWAII, !Ne., ET AL.
Sup. Ct. Haw. Motions to dispense with printing petition
and brief in opposition granted. Certiorari denied.
Reported below: 53 Haw. 353, 493 P. 2d 1032.
No. 71-1426. CHAMBERS v. SPEIGHT, CoMMISSIONER
OF HIGHWAYS AND PUBLIC w ORKS OF TENNESSEE. c. A.
6th Cir. Motion to dispense with printing petition
granted. Certiorari denied. MR. JusTICE DouGLAS 1s
of the opinion that certiorari should be granted.
No. 71- 1431. TRIANGLE PUBLICATIONS, INc., ET AL. v.
MATUS. Sup. Ct. Pa. Motion of respondent for leave
to proceed in forma pauperis granted. Certiorari denied.
Reported below: 445 Pa. 384, 286 A. 2d 357.
No. 71-1441. CONNORS ET AL. v. CHAS. PFIZER & Co.,
INc., ET AL. C. A. 2d Cir. Certiorari denied. MR. Jusl'ICE
WHITE took no part in the consideration or decision
of this petition. Reported below: 450 F. 2d 1119.
No. 71- 1534. MONTANA PowER Co. v. FEDERAL PowER
COMMISSION ET AL. C. A. D. C. Cir. Certiorari denied.
THE CHIEF JUSTICE took no part in the consideration or
decision of this petition. Reported below: 148 U.S. App.
D. C. 74, 459 F. 2d 863.
ORDERS 931
408 U.S. June 26, 1972
No. 71-1549. BLANKNER v. CITY OF CHICAGO. Sup.
Ct. Ill. Motions of Janitors Union Local 1, Chicago
Property Owners Assn. et al., and Roman C. Pucinski
for leave to file briefs as amici curiae granted. Certiorari
denied. Reported below: 50 Ill. 2d 69, 277 N. E.
2d 129.
No. 71-1581. FERRARA ET AL. v. UNITED STATES.
C. A. 2d Cir. Certiorari denied. MR. JusTICE DouGLAS
took no part in the consideration or decision of this petition.
Reported below: 458 F. 2d 868.
No. 71-6468. HURST V. ESTES, U. S. DISTRICT JUDGE;
and
No. 71-6790. HuRSI' v. UNITED STATES. C. A. 5th
Cir. Motion of petitioner to consolidate granted. Certiorari
denied. Reported below: 460 F. 2d 1258.
No. 71-662:"i. HoLT v. CITY OF RICHMOND ET AL.
C. A. 4th Cir. Certiorari denied. MR. JUSTICE POWELL
took no part in the consideration or decision of this petition.
Reported below: 459 F. 2d 1093.
Rehearing Granted. (See No. 71-5040, supra.)
Rehearing Denied
No. 70-78. AFFILIATED UTE CITIZENS OF UTAH ET AL.
v. UNITED STATES ET AL., 406 U. S. 128. Petition for rehearing
denied. MR. JusTICE POWELL and MR. JusTICE
REHNQUIST took no part in the consideration or decision
of this petition.
No. 70-117. KAsTIGAR ET AL. v. UNITED STATES, 406
U. S. 441. Petition for rehearing denied. MR. JusTICE
BRENNAN and MR. JUSTICE REHNQUIST took no part in
the consideration or decision of this petition.
No. 71-5830. JoNES v. CRAVEN, WARDEN, 406 U. S.
921. Motion for leave to file petition for rehearing
denied.
932 OCTOBER TERM, 1971
June 26, 29, 1972 408 U.S.
No. 71-913. SEABOARD SHIPPING CoRP. v. MoRAN INLAND
WATERWAYS C'ORP. ET AL., 406 U.S. 949;
No. 71-1068. MrnwEST FREIGHT FORWARDING Co.,
INC., ET AL. V. LEWIS, SECRETARY OF STATE OF ILLINOIS,
ET AL., 406 U.S. 939;
Ko. 71-1264. FERRELL ET AL. v. HALL, GOVERNOR OF
OKLAHOMA, ET AL., 406 l'. S. 939;
No. 71 - 5795. PARK V. CALIFORNIA ET AL., 406 U. S.
962;
No. 71-6170. SooTs ET ux. v. PANARO, 406 U.S. 922;
No. 71-6194. BATEN v. DISTRICT UNEMPLOYMENT
COMPENSATION BOARD, 406 U. S. 923;
No. 71-6205. PoKRAS v. UNITED STATES, 406 U. S.
924;
No. 71-6249. KRIKMANIS V. MANNERING ET AL. , 406 u. s. 926;
No. 71- 6324. DELEVAY v. GREYHOUND CoRP., 406
U. S. 928; and
N'o. 71-6429. MAGRO V. LENTINI BROS. MOVING &
STORAGE Co. ET AL., 406 U. S. 961. Petitions for rehearing
denied.
JUNE 29, 1972
Vacated and Remanded on Appeal
N"o. 68- 5017. JOHNSON ET AL. V. LOUISIANA. Appeal
from Sup. Ct. La. Motion for leave to proceed in forma
pauperu granted. Judgment vacated insofar as it leaves
undisturbed the death penalty imposed, and case remanded
for further proceedings. See Stewart v. Massachusetts,
ante, p. 845. Reported below: 253 La. 18, 215
So. 2d 838.
No. 69-5050. KERRIGAN V. SCAFATI, CORRECTIONAL
SUPERINTENDENT. Appeal from D. C. Mass. Motion
for leave to proceed in forma paupern granted. Judgment
vacated insofar as it leaves undisturbed the death
penalty imposed, and case remanded for further proceedings.
See Stewart v. Massachusetts, ante, p. 845.
ORDERS 933
408 u. s. June 29, 1972
No. 71-5073. POPE v. NEBRASKA. Appeal from Sup.
Ct. Neb. Motion for leave to proceed in forma pauperis
granted. Judgment vacated insofar as it leaves undisturbed
the death penalty imposed, and case remanded
for further proceedings. See Stewart v. Massachusetts,
ante, p. 845. MR. JusTICE BLACKMUN took no part in
the consideration or decision of this case. Reported below:
186 Neb. 489, 184 N. \V. 2d 395.
No. 70--210. OYEN ET AL. v. WASHINGTON. Appeal
from Sup. Ct. \Vash. Motion to dispense with printing
jurisdictional statement granted. Judgment vacated and
case remanded for further consideration in light of Police
Department of City of Chicago v. Mosley, ante, p. 92,
and Grayned v. City of Rockford, ante, p. 104. Reported
below: 78 \Vash. 2d 909, 480 P. 2d 766.
Appeal Dismissed
No. 68-5012. HowARD v. NEVADA. Appeal from Sup.
Ct. Nev. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied. Reported below:
84 Nev. 599, 446 P. 2d 163.
Certiorari Granted-Vacated and Remanded
In each of the following cases (beginning with No. 68-
5001 on this page and extending through No. 71-6592
on p. 940), the motion for leave to proceed in forma
pauperis and certiorari are granted. The judgment
is vacated insofar as it leaves undisturbed the
death penalty imposed, and the case is remanded for
further proceedings. See Stewart v. Massachusetts,
ante, p. 845.
No. 68-5001. MARKS v. LOUISIANA. Sup. Ct. La.
Reported below: 252 La. 277, 211 So. 2d 261.
No. 68-5002. McCANTS v. ALABAMA. Sup. Ct. Ala.
Reported below: 282 Ala. 397, 211 So. 2d 877.
934 OCTOBER TERM, 1971
June 29, 1972 408U.S.
No. 68- 5003. IN RE REYNOLDS ET AL. C. A. 3d Cir.
Reported below: 397 F. 2d 131.
No. 68-5004. YArEs v. CooK, PENITENTIARY SUPERINTENDENT.
C. A. 5th Cir. Reported below: 402 F. 2d
113.
No. 68- 5005. SIMS v. EYMAN, PENITENTIARY SUPERINTENDENT.
C. A. 9th Cir. Reported below: 405 F.
2d 439.
No. 68-5006. WRIGHT v. BETO, CORRECTIONS Dr-
RECTOR. Ct. Crim. App. Tex. Reported below: 422
S. W. 2d 184.
No. 68-5008. MILLER v. MARYLAND. Ct. App. Md.
Reported below: 251 Md. 362, 247 A. 2d 530.
No. 68-5010. WILLIAMS v. LoursIANA. Sup. Ct. La.
Reported below: 252 La. 1023, 215 So. 2d 799.
Ko. 68-5011. HUBBARD v. ALABAMA. Sup. Ct. Ala.
Reported below: 283 Ala. 183, 215 So. 2d 261.
No. 68-5013. SCOLERI v. PENNSYLVANIA. Sup. Ct.
Pa. Reported below: 432 Pa. 571, 248 A. 2d 295.
No. 68-5015. JANOVIC v. EYMAN, WARDEN. C. A. 9th
Cir. Reported below: 406 F. 2d 314.
No. 68- 5016. SMITH ET AL. v. WASHINGTON. Sup.
Ct. Wash. Reported below: 74 Wash. 2d 744, 446 P. 2d
571.
No. 68-5018. BILLINGSLEY V. :N°EW JERSEY ET AL.
C. A. 3d Cir. Reported below: 408 F. 2d ll81.
Ko. 68-5019. MORFORD v. HocKER, WARDEN. Sup.
Ct. Nev.
No. 68- 5022. KRUCHTEN v. EYMAN, WARDEN. C. A.
9th Cir. Reported below: 406 F. 2d 304.
No. 68-5023. SMITH v. TEXAS. Ct. Crim. App. Tex.
Reported below: 437 S. W. 2d 835.
No. 68-5024. McALLISTER v. Lou1s1ANA. Sup. Ct.
La. Reported below: 253 La. 382, 218 So. 2d 305.
No. 69-2. KooNCE v. OKLAHOMA. Ct. Crim. App.
Okla. Reported below: 456 P. 2d 549.
ORDERS 935
408 U.S. June 29, 1972
No. 69-3. PARK v. GEORGIA. Sup. Ct. Ga. Reported
below: 225 Ga. 618, 170 S. E. 2d 687.
No. 69-5004. HuRST v. ILLINOIS ET AL. Sup. Ct. Ill.
Reported below: 42 Ill. 2d 217, 247 N. E. 2d 614.
No. 69-5005. LoKos v. ALABAMA. Sup. Ct. Ala. Reported
below: 284 Ala. 53, 221 So. 2d 689.
Ko. 69-5006. SULLIVAN v. GEORGIA. Sup. Ct. Ga.
Reported below: 225 Ga. 301, 168 S. E. 2d 133.
No. 69-5007. FESMIRE v. OKLAHOMA. Ct. Crim.
App. Okla. Reported below: 456 P. 2d 573.
No. 69-5008. Du1sEN v. MissouRI. Sup. Ct. Mo.
Reported below: 441 S. W. 2d 688.
No. 69-5010. THOMAS v. FLORIDA. Sup. Ct. Fla.
Reported below: 223 So. 2d 318.
No. 69-5011. WALKER v. NEVADA. Sup. Ct. Nev.
Reported below: 85 Nev. 337, 455 P. 2d 34.
No. 69-5013. MEFFORD v. WARDEN, MARYLAND PENITENTrARY.
C. A. 4th Cir. Reported below: 413 F. 2d
439.
No. 69-5014. DAVIS v. CONNECTICUT. Sup. Ct. Conn.
Reported below: 158 Conn. 341, 260 A. 2d 587.
No. 69-5015. MANOR v. GEORGIA. Sup. Ct. Ga. Reported
below: 225 Ga. 538, 170 S. E. 2d 290.
No. 69-5018. EATON v. OHIO. Sup. Ct. Ohio. Reported
below: 19 Ohio St. 2d 145, 249 N. E. 2d 897.
Ko. 69-5023. IRvING v. MissrssrPPI. Sup. Ct. Miss.
Reported below: 228 So. 2d 266.
No. 69- 5024. PARAMORE v. FLORIDA. Sup. Ct. Fla.
Reported below: 229 So. 2d 855.
No. 69-5025. KELBACH ET AL. v. UTAH. Sup. Ct.
Utah. Reported below: 23 Utah 2d 231, 461 P. 2d 297.
No. 69-5027. CUMMINGS v. GEORGIA. Sup. Ct. Ga.
Reported below: 226 Ga. 46, 172 S. E. 2d 395.
No. 69-5028. WILLIAMS v. SLAYTON, PENITENTIARY
SUPERINTENDENT. Sup. Ct. Va.
No. 69- 5029. EUBANKS v. OHIO. Sup. Ct. Ohio.
936 OCTOBER TERM, 1971
June 29, 1972 408 u. s.
No. 69-5032. ARKWRIGHT v. GEORGIA. Sup. Ct. Ga.
Reported below: 226 Ga. 192, 173 S. E. 2d 179.
No. 69-5033. ATKINSON v. SouTH CAROLINA. Sup.
Ct. S. C. Reported below: 253 S. C. 531,172 S. E. 2d 111.
No. 69-5034. CARTER v. OHIO. Sup. Ct. Ohio. Reported
below: 21 Ohio St. 2d 212, 256 N. E. 2d 714.
No. 69-5036. HUBBARD v. ALABAMA. Sup. Ct. Ala.
Reported below: 285 Ala. 212, 231 So. 2d 86.
No. 69-5038. KEATON v. OHIO. Ct. App. Ohio,
Franklin County. Reported below: 19 Ohio App. 2d
254, 250 N. E. 2d 901.
No. 69-5039. LEE, AKA KING v. GEORGIA. Sup. Ct.
Ga. Reported below: 226 Ga. 162, 173 S. E. 2d 209.
No. 69-5043. HUFFMAN V. BETO, CORRECTIONS DIRECTOR.
Ct. Crim. App. Tex. Reported below: 450
S. W. 2d 858.
No. 69-5044. SWAIN v. ALABAMA. Sup. Ct. Ala.
Reported below: 285 Ala. 292, 231 So. 2d 737.
No. 69- 5045. THACKER v. GEORGIA. Sup. Ct. Ga.
Reported below: 226 Ga. 170, 173 S. E. 2d 186.
No. 69-5047. DuLING v. OHIO. Sup. Ct. Ohio. Reported
below: 21 Ohio St. 2ci 13, 254 N. E. 2d 670.
No. 69-5048. LASKEY v. OHIO. Sup. Ct. Ohio. Reported
below: 21 Ohio St. 2d 187, 257 N. E. 2d 65.
No. 69-5049. WILLIAMS v. GEORGIA. Sup. Ct. Ga.
Reported below: 226 Ga. 140, 173 S. E. 2d 182.
No. 70-3. WALKER v. GEORGIA. Sup. Ct. Ga. Reported
below: 226 Ga. 292, 174 S. E. 2d 440.
No. 70-5. LIMONE ET AL. v. MASSACHUSETTS. Sup.
Jud. Ct. Mass. Reported below: 357 Mass. 356, 259
N. E. 2d 195.
No. 71-1139. LIMONE ET AL. v. MASSACHUSETTS.
Sup. Jud. Ct. Mass. Reported below: - Mass. -,
276 N. E. 2d 698.
No. 70-5001. POLAND v. LoursIANA. Sup. Ct. La.
Reported below: 255 La. 746, 232 So. 2d 499.
ORDERS 937
408U.S. ,Tune 29, 1972
No. 70-5003. CAPLER v. MrsSISSIPPI. Sup. Ct. Miss.
Reported below: 237 So. 2d 445.
No. 70-5006. HAMBY ET AL. v. NORTH CAROLINA.
Sup. Ct. N. C. Reported below: 276 N. C. 674, 174 S. E.
2d 385.
No. 70-5008. DAVID, AKA DAVIS v. TEXAS. Ct. Crim.
App. Tex. Reported below: 453 S. W. 2d 172.
No. 70-5011. THAMES v. TEXAS. Ct. Crim. App.
Tex. Reported below: 453 S. W. 2d 495.
No. 70-5018. STRONG v. LouisrANA. Sup. Ct. La.
Reported below: 256 La. 455, 236 So. 2d 798.
No. 70-5017. FULLER v. SouTH CAROLINA. Sup. Ct.
S. C. Reported below: 254 S. C. 260, 174 S. E. 2d 774.
No. 70-5018. MILLER v. NoRTH CAROLINA. Sup. Ct.
N. C. Reported below: 276 N. C. 681, 174 S. E. 2d 481.
No. 70-5019. FOGG v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. Sup. Ct. Va. Reported below: See 208
Va. 541, 159 S. E. 2d 616.
No. 70-5022. TEA v. TEXAS. Ct. Crim. App. Tex.
Reported below: 453 S. W. 2d 179.
No. 70-5023. DOUGLAS ET AL. V. LOUISIANA. Sup.
Ct. La. Reported below : 256 La. 572, 237 So. 2d 382.
No. 70-5027. ALVAREZ v. NEBRASKA. Sup. Ct. Neb.
Reported below: 185 Neb. 557, 177 N. W. 2d 591.
No. 70-5031. SELLARS v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Reported below: 430 F. 2d 1150.
No. 70-5034. TYLER v. WASHINGTON. Sup. Ct.
Wash. Reported below: 77 Wash. 2d 726,466 P. 2d 120.
No. 70-5043. HERRON v. TENNESSEE. Ct. Crim.
App. Tenn. R eported below: 3 Tenn. Cr. App. 39, 456
S. W. 2d 873.
No. 70-5044. JACKSON V . BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Reported below: 428 F. 2d 1054.
No. 70-5046. JOHNSON v. MARYLAND. Ct. App. Md.
Reported below: 258 Md. 597, 267 A. 2d 152.
938 OCTOBER TERM, 1971
June 29, 1972 408 U.S.
No. 70-5050. BmcKBousE v. SLAYTON, PENITENTIARY
SUPERINTENDENT. Sup. Ct. Va.
No. 70-5051. JACKSON v. ALABAMA. Sup. Ct. Ala.
Reported below: 286 Ala. 287, 239 So. 2d 303.
No. 70-5054. BRYSON v. OHIO. Sup. Ct. Ohio. Reported
below: 22 Ghio St. 2d 224, 259 N. E. 2d 740.
No. 70-5062. CUNNINGHAM v. WARDEN, MARYLAND
PENITENTIARY. Ct. App. Md. Reported below: See
247 Md. 404, 231 A. 2d 501.
No. 70-5065. MILLER v. GEORGIA. Sup. Ct. Ga. Reported
below: 226 Ga. 730, 177 S. E. 2d 253.
No. 70-5066. WILLIAMS v. SMITH, WARDEN. C. A.
5th Cir. Reported below: 431 F. 2d 70.
No. 70-5067. MORALES v. TEXAS. Ct. Crim. App.
Tex. Reported below: 458 S. W. 2d 56.
No. 70-5069. McKENZIE v. TEXAS. Ct. Crim. App.
Tex. Reported below: 450 S. W. 2d 341.
No. 70-5070. ANDERSON v. FLORIDA. Sup. Ct. Fla.
Reported below: 241 So. 2d 390.
No. 70-5079. HENDERSON v. GEORGIA. Sup. Ct. Ga.
Reported below: 227 Ga. 68, 179 S. E. 2d 76.
No. 70-5084. MOREHEAD v. OHIO. Sup. Ct. Ohio.
Reported below: 24 Ohio St. 2d 166, 265 N. E. 2d 551.
No. 70-5221. STATEN v. OHIO. Sup. Ct. Ohio. Reported
below: 25 Ohio St. 2d 107, 267 N. E. 2d 122.
N 0. 70-5326. ARRINGTON v. MARYLAND. C. A. 4th
Cir.
No. 70-5394. BROWN v. FLORIDA. Sup. Ct. Fla. Reported
below: 245 So. 2d 68.
No. 70-5400. WILLIAMS v. KENTUCKY. Ct. App. Ky.
Reported below: 464 S. W. 2d 244.
No. 71-5008. BARTHOLOMEY v. MARYLAND. Ct. App.
Md. Reported below: 260 Md. 504, 273 A. 2d 164.
No. 71-5114. SQUARE v. LoursrANA. Sup. Ct. La.
Reported below: 257 La. 743, 244 So. 2d 200.
ORDERS 939
408 U.S. June 29, 1972
No. 71-5184. SINCLAIR v. LoUISIANA. Sup. Ct. La.
Reported below: 258 La. 84, 245 So. 2d 365.
No. 71-5192. TULL v. WARDEN, MARYLAND PENITENTIARY.
Ct. App. Md. Reported below: 262 Md.
299, 278 A. 2d 599.
No. 71-5194. SEENEY v. DELAWARE. Sup. Ct. Del.
Reported below: - Del. -, 277 A. 2d 670.
No. 71 - 5197. STRONG v. MARYLAND. Ct. App. Md.
Reported below: 261 Md. 371, 275 A. 2d 491.
No. 71-5225. STEIGLER v. DELAWARE. Sup. Ct. Del.
Reported below: - Del. - , 277 A. 2d 662.
No. 71-5228. CrnRY v. TEXAS. Ct. Crim. App. Tex.
Reported below: 468 S. W. 2d 455.
Xo. 71-5274. ELLIOTT v. OHIO. Sup. Ct. Ohio. Reported
below: 25 Ohio St. 2d 249, 267 N. E. 2d 806.
No. 71- 5359. CERNY v. WASHINGTON. Sup. Ct.
Wash. Reported below: 78 Wash. 2d 845 , 480 P. 2d 199.
No. 71-5369. TILFORD v. PAGE, WARDEN. C. A. 10th
Cir. Reported below: See 307 F. Supp. 781.
No. 71-5395. vVESTBROOK V. NORTH CAROLINA. Sup.
Ct. N. C. Reported below: 279 N". C. 18 , 181 S. E. 2d 572.
Ko. 71-5525. \'.\-HITE v. OHIO. Sup. Ct. Ohio. Reported
below: 27 Ohio St. 2d 73 , 271 N. E. 2d 804.
No. 71-5648. ALFORD v. EYMAN, WARDEN. C. A. 9th
Cir. Reported below: 448 F. 2d 306.
No. 71-5744. PHELAN V. BRIERLEY, WARDEN. C. A.
3d Cir. R eported below: 453 F. 2d 73.
Ko. 71-5866. JOHNSON v. FLORIDA. Sup. Ct. Fla.
Reported below: 252 So. 2d 361.
No. 71- 6001. Doss v. NORTH CAROLINA. Sup. Ct.
N. C. Reported below: 279 X. C. 413, 183 S. E. 2d 671.
No. 71-6068. STANLEY v. TEXAS. Ct. Crim. App.
Tex. Reported below: 471 S. W. 2d 72.
No. 71 - 6081. KAssow v. OHIO. Sup. Ct. Ohio. Reported
below: 28 Ohio St. 2d 141, 277 N . E. 2d 435.
940 OCTOBER TERM, 1971
June 29, 1972 408 U.S.
No. 71-6137. GILMORE v. MARYLAND. Ct. App. Md.
Reported below: 263 Md. 268, 283 A. 2d 371.
No. 71-6138. TERRY v. M1ssouRr. Sup. Ct. Mo. Reported
below: 472 S. W. 2d 426.
No. 71-6154. BOYKIN v. FLORIDA. Sup. Ct. Fla. Reported
below: 257 So. 2d 251.
No. 71-6156. YOUNG v. OHIO. Sup. Ct. Ohio. Reported
below: 27 Ohio St. 2d 310, 272 N. E. 2d 353.
No. 71 - 6183. MATTHEWS v. TEXAS. Ct. Crim. App.
Tex. Reported below: 471 S. W. 2d 834.
No. 71-6204. BROWN v. VIRGINIA. Sup. Ct. Va. Reported
below: 212 Va. 515, 184 S. E. 2d 786.
No. 71-6223. Music v. WASHINGTON. Sup. Ct.
Wash. Reported below: 79 Wash. 2d 699,489 P. 2d 159.
No. 71-6224. CHANCE v. NORTH CAROLINA. Sup. Ct.
N. C. Reported below: 279 N. C. 643, 185 S. E. 2d 227.
No. 71-6282. CANADAY v. WASHINGTON. Sup. Ct.
Wash. Reported below: 79 Wash. 2d 647,488 P. 2d 1064.
No. 71-6539. MENTHEN v. OKLAHOMA. Ct. Crim.
App. Okla. Reported below: 492 P. 2d 351.
No. 71-6592. DELGADO v. CONNECTICUT. Sup. Ct.
Conn. Reported below: 161 Conn. 536, 290 A. 2d 338.
No. 71-819. THOMAS ET AL. v. SHIRCK; and
No. 71- 946. SHIRCK v. THOMAS ET AL. C. A. 7th
Cir. Certiorari granted, judgment vacated, and cases remanded
for further consideration in light of Board of
Regents of State Colleges v. Roth, ante, p. 564. MR.
JUSTICE DOUGLAS would affirm the judgment below. Reported
below: 447 F. 2d 1025.
No. 71-5790. CANTY v. BOARD OF EDUCATION OF THE
CITY OF NEw YoRK. C. A. 2d Cir. Motion for leave
to proceed in for1na pauperis and certiorari granted.
Judgment vacated and case remanded for further consideration
in light of Perry v. Sindermann, ante, p. 593;
Board of R egents of State Colleges v. Roth, ante, p. 564;
and Lynch v. Household Finance Corp., 405 U. S. 538.
ORDERS 941
408 u. s. June 29, 1972
MR. JUSTICE DOUGLAS would grant, vacate, and remand
solely in light of Lynch v. Household Finance Corp.,
supra. Reported below: 448 F. 2d 428.
No. 69-5016. PITTS v. WAINWRIGHT, CORRECTIONS
DIRECTOR. Sup. Ct. Fla. Motion for leave to proceed in
forma pauperis granted. Motion for leave to file petition
for writ of habeas corpus denied. Treating the petition
for writ of habeas corpus as a petition for writ of certiorari,
certiorari granted. Judgment vacated insofar as it
leaves undisturbed the death penalty imposed, and case
remanded for further proceedings. See Stewart v. Massachusetts,
ante, p. 845. Reported below: 185 So. 2d 164.
No. 69-5017. HAWKINS v. WAINWRIGHT, CORRECTIONS
DIRECTOR. Sup. Ct. Fla. Motion for leave to proceed in
forma pauperis granted. Motion for leave to file petition
for writ of habeas corpus denied. Treating the petition
for writ of habeas corpus as a petition for writ of certiorari,
certiorari granted. Judgment vacated insofar as it
leaves undisturbed the death penalty imposed, and case
remanded for further proceedings. See Stewart v. J'lJ assachusetts,
ante, p. 845. Reported below: 199 So. 2d 276.
No. 70-5020. WILLIAMS v. WAINWRIGHT, CORRECTIONS
DIRECTOR. C. A. 5th Cir. Motion for leave to
proceed in forma pauperis granted. Motion for leave
to file petition for writ of habeas corpus denied. Treating
the petition for writ of habeas corpus as a petition for
writ of certiorari, certiorari granted. Judgment vacated
insofar as it leaves undisturbed the death penalty
imposed, and case remanded for further proceedings.
See Stewart v. Massachusetts, ante, p. 845. Reported
below: See 228 So. 2d 377.
No. 204, October Term, 1970. CRAMPTON v. OHIO.
Sup. Ct. Ohio. Petition for rehearing granted. Judgment
affirming judgment of the Supreme Court of Ohio,
402 U. S. 183 (1971), vacated. Judgment, 18 Ohio St.
942 OCTOBER TERM, 1971
June 29, 1972 408 U.S.
2d 182, 248 N. E. 2d 614 (1969), vacated insofar as it
leaves undisturbed the death penalty imposed, and case
remanded for further proceedings. See Furman v. Georgia,
ante, p. 238.
Miscellaneous Orders
No. 71- 1255. UNITED STATES v. AsH. C. A. D. C.
Cir. [Certiorari granted, 407 U. S. 909.] Motion for
appointment of counsel granted. It is ordered that
Sherman L. Cohn, Esquire, of Washington, D. C., a
member of the Bar of this Court, be, and he is hereby,
appointed to serve as counsel for respondent in this case.
No. 71-575. GOMEZ v. PEREZ. Appeal from Ct. Civ.
App. Tex., 4th Sup. Jud. Dist. [Probable jurisdiction
noted, ante, p. 920.] Joseph Jaworski, Esquire, of Houston,
Texas, a member of the Bar of this Court, is invited
to brief and argue this case as amicus curiae in support of
the judgment below.
Certiorari Denied. (See also No. 68-5012, supra.)
No. 70-228. WARDEN, MARYLAND PENITENTIARY v.
RALPH; and
No. 70-5198. RALPH v. WARDEN, MARYLAND PENITENTIARY.
C. A. 4th Cir. Certiorari denied. Reported
below: 438 F. 2d 786.
No. 71-1284. NEw JERSEY v. PRESHA ET AL. Sup. Ct.
N. J. Certiorari denied. Reported below: 60 N. J. 60,
286 A. 2d 55.
No. 70-322. IN RE WARREN. Gen. Ct. Justice, Super.
Ct. Div., Caswell County, N. C. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari, vacate judgment
below, and remand case for further consideration in
light of his opinion dissenting in part in Morrissey v.
Brewer, ante, p. 471, at 491.
No. 70-141. HonGIN v. NoLAND. C. A. 4th Cir. Certiorari
denied. MR. JUSTICE DouGLAS is of the opinion
ORDERS 943
408 U.S. June 29, 1972
that certiorari should be granted. Reported below: 435
F. 2d 859.
No. 70--354. FooDEN ET AL. v. BOARD OF GovERNORS
OF STATE COLLEGES AND UNIVERSITIES OF ILLINOIS. Sup.
Ct. Ill. Certiorari denied. MR. JUSTICE DOUGLAS is of
the opinion that certiorari should be granted. Reported
below: 48 Ill. 2d 580, 272 N. E. 2d 497.
No. 71-430. CRABTREE v. BOARD OF EDUCATION,
WELLSTON CITY ScHOOL DrsTRICT, ET AL. Sup. Ct. Ohio.
Certiorari denied. MR. JUSTICE Dou GLAS is of the opinion
that certiorari should be granted.
No. 71-6259. McEN'.rEGGART v. CATALDO ET AL. C. A.
1st Cir. Certiorari denied. MR. JUSTICE DOUGLAS is of
the opinion that certiorari should be granted. Reported
below: 451 F. 2d 1109.
No. 71-249. ORR v. TRINTER ET AL. C. A. 6th Cir.
Motions of National Education Assn. and Board of Education
of the City of Washington C. H., Ohio, for leave
to file briefs as amici curiae granted. Certiorari denied.
MR. JUSTICE DouGLAS is of the opinion that certiorari
should be granted. Reported below: 444 F. 2d 128.
Rehearing Granted. (See No. 204, October Term, 1970,
supra.)
£ STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND
REMAINING ON DOCKETS AT CONCLUSION OF OCTOBER TERMS-1969, 1970, AND 1971
ORIGINAL APPELLATE MISCELLANEOUS TOTALS
Terms ________________________ 1969 1970 1971 1969 1970 1971 1969 1970 1971 1969 1970 1971
- -- - - - - - - - - - --- - - -- - - - -- --- --- ---
Number of cases on dockets _____ 15 20 18 1,758 1,903 2,070 2,429 2,289 2,445 4,202 4,212 4,533
Number disposed of during terms_ 5 7 8 1,433 1,541 1,628 1,971 1,774 2,009 3,409 3,322 3,645
- -- - - -- - - - - - - - - - - - - - - - - -
Number remaining on dockets ___ 10 13 10 325 362 442 458 515 436 793 890 888
TERMS
1969 1970 1971
- - - - -- - - -
Cases argued during term _________________________ _________________________________________ 144 151 l177
Number disposed of by full opinions---------------------------------------------- -- - -- - 105 126 143
Number disposed of by per curiam opinions _____________________________ ____ _____ ________ 21 22 2 24
Number set for reargument the following term ____ __________ _______________ ______________ 18 3 5
Cases granted review this term ______ _________ __________________________ ________________ ____ 150 161 3163
Cases reviewed and decided without oral argument ______________ _____________________________ 113 192 286
Total cases to be available for argument at outset of following term _________________ ________ ____ 94 107 99
1 Includes No. 9 Orig. (pending) • Includes A-483 a,nd No. 9 Orig.
• Includes A-483 and No. 60 Orig'.
JULY 11, 1972
INDEX
ACADEMIC CONFERENCES. See Constitutional Law, III, 1;
Immigration and Nationality Act; Judicial Review, 1.
ACADEMIC FREEDOM. See Constitutional Law, I, 5; III, 9;
Procedure, 1-2.
ACCEPTANCE OF BRIBES. See Appeals, 1; Constitutional
Law, VII, 1; Jurisdiction.
ACCESS ROUTES. See Administrative Procedure, 1-5; Interstate
Commerce Commission, 1-5; Judicial Review, 2-6.
ACCUMULATION OF INCOME. See Taxes, 1-3.
ACQUISITIONS. See Administrative Procedure, 1-5; Interstate
Commerce Commission, 1-5; Judicial Review, 2-6.
ADMINISTRATIVE HEARINGS. See Constitutional Law, I, 5;
Procedure, 3.
ADMINISTRATIVE PROCEDURE. See also Interstate Commerce
Commission, 1-5; Judicial Review, 2-6.
I. Line-haul carriers jointly acquiring control of switching railroad-
Related application for trackage rights by one petitioner for
inclusion.-The denial of trackage rights to Southern Pacific (on the
ground that SP was "not entitled to serve Peninsula or Rivergate")
should be reconsidered by the Interstate Commerce Commission in
conjunction with the reappraisal of the issues arising under § 5 (2)
of the Interstate Commerce Act. Port of Portland v. United States,
p. 811.
2. Line-haul carriers petitioning for inclusion in control of switching
railroad-ICC decision--Applicable legal, principles.-In view
of uncertainties about the northern access to Portland's Rivergate
mdustrial complex-given the physical limitations of the present
facilities of Peninsula Terminal Co.-and the apparent fact. that
physical operation over Peninsula into Rivergate was not at issue
here, approval of the ICC order, with its protective conditions, may
still be in the public interest, but the announced grounds for the
ICC decision do not comport with the applicable iegal principles.
Port of Portland v. United States, p. 811.
945
946 INDEX
ADMINISTRATIVE PROCEDURE-Continued.
3. Line-haul carriers petitioning for inclusion in joint purchase of
switching railroad-klarket shares and existing traffic.-In stressing
the small share in Peninsula Terminal Co.'s traffic that Milwaukee
Railroad had before the Northern Lines Merger, the ICC ignored
any possible increase in that share after Condition 24 (a) of that
merger took effect. In announcing a principle of preserving the
market shares of the two railroads currently connecting with Peninsula,
the ICC failed to explain why it was not taking into account
the potentially enormous traffic over Peninsula, should Peninsula
become the northern route into Portland's Rivergate industrial complex.
Port of Portland v. United States, p. 811.
4. Line-haul carriers seeking joint acquisition of switching railroa.
d-Petitions for inclusion denied by ICC.-On the record in
this case ( which is ambiguous with regard to many factual and
procedural issues) it has not been shown that the ICC's order
authorizing Union Pacific and Burlington Northern alone to acquire
control of the Peninsula Terminal Co. met the "public interest"
standard of § 5 (2) of the Interstate Commerce Act. Port of Portland
v. United States, p. 811.
5. Petitions for inclusion-Shifting market shares-Anticompetitive
eff ects.-The ICC's denial of inclusion of the Southern Pacific Transportation
Co. and the Milwaukee Railroad because their gain would
work a corresponding loss to Burlington Northern and Union Pacific
is not a proper approach under § 5 (2) of the Interstate Commerce
Act, given the principle that the anticompetitive effects of any
§ 5 (2) transaction must be explicitly considered. Port of Portland
v. United States, p. 811.
ADMISSIBILITY OF EVIDENCE. See Constitutional Law, V;
Evidence, 3.
ADMISSION OF ALIENS, See Constitutional Law, III, 1;
Immigration and Nationality Act; Judicial Review, 1.
ADVERSARY HEARINGS. See Constitutional Law, I, 1-2, 4;
Paroles, 1-3.
ADVISORY OPINIONS. See Constitutional Law, III, 3·
Justiciability. '
AGREEMENTS TO CONCEAL FACTS. See Constitutional Law,
III, 8; Grand Juries, 4.
AIDE TO SENATOR. See Appeals, 2-3; Constitutional Law,
VII, 2-6; Grand Juries, 2-3, 5.
INDEX 947
ALABAMA. See Confessions; Constitutional Law, IV, 1.
ALIBI DEFENSES. See Constitutional Law, I, 3; II, 1 ; Criminal
Law, 2-4; Evidence, 1-2; Procedure, 1.
ALIENS. See Constitutional Law, III, 1; Immigration and Nationality
Act; Judicial Review, 1.
ANONYMITY OF SOURCES. See Constitutional Law, III, 8;
Grand Juries, 4.
ANTICOMPETITIVE EFFECTS. See Administrative Procedure,
1-5; Interstate Commerce Commission, 1-5; Judicial Review,
2-6.
ANTINOISE ORDINANCES. Seo Constitutional Law, III, 6.
ANTIPIOKETING ORDINANCES. See Constitutional Law, III,
5-6.
APPEALS. See also Constitutional Law, V; VII, 1-6; Evidence,
3; Grand Juries, 2-3, 5; Jurisdiction.
I. District Court "decision or judgment setting aside, or dismissing"
the indictment-Direct appeal.-This Court has jurisdiction
under 18 U. S. C. § 3731 (1964 ed., Supp. V) to hear the appeal, since
the District Court's order was based upon its determination of the
constitutional invalidity of 18 U. S. C. §§ 201 (c) (I) and 201 (g)
on the facts as alleged in the indictment, United States v. Brewster,
p. 501.
2. Interrogation of Senator's aide-Scope of questioning.-Aide
may be questioned by the grand jury about the source of classified
documents in the Senator's possession, as long as the questioning
implicates no legislative act. The Court of Appeals' protective order
in other respects would suffice if it forbade questioning the aide or
others about the conduct or motives of the Senator or his aides at
the subcommittee meeting; communications between the Senator and
his aides relating to t.hat meeting or any legislative act of
the Senator; or steps of the Senator or his aides preparatory for
the meeting, if not relevant to third-party crimes. Gravel v. United
States, p. 606.
3. Questioning Senator's aide-Protective order.-The Court of
Appeals' protective order was overly broad in enjoining interrogation
of the aide with respect to any act, "in the broadest sense," that he
performed within the scope of his employment, since the aide's immunity
extended only to legislative acts as to which the Senator would
be immune. Gravel v. United States, p. 606.
948 INDEX
APPEAL TO PRURIENT INTEREST. See Constitutional Law,
III, 7.
ARBITRARY PENALTIES. See Constitutional Law, II, 2; Criminal
Law, 1.
ARMY INTELLIGENCE. See Constitutional Law, III, 3;
Justiciability.
ASSISTANCE OF COUNSEL. See Constitutional Law, VI;
Mootness; Witnesses.
ASSOCIATIONAL RIGHTS. See Constitutional Law, III, 1-2,
4; IV, 2; Immigration and Nationality Act; Judicial Review, 1.
ATTORNEY GENERAL. See Constitutional Law, III, 1; Immigration
and Nationality Act; Judicial Review, 1.
AVAILABILITY OF WITNESSES. See Constitutional Law, VI;
Mootness; Witnesses.
BANKS. See Taxes, 1-3.
BARTENDERS. See Constitutional Law, I, 3; II, 1; Criminal
Law, 2-4; Evidence, 1-2; Procedure, 1.
BEACON l'RESS. See Appeals, 2-3; Constitutional Law, VII,
2-6; Grand Juries, 2-3, 5.
BELGIAN JOURNALISTS. See Constitutional Law, III, 1;
Immigration and Nationality Act; Judicial Review, 1.
BENEFICIARIES. See Taxes, 1-3.
BENEFITS. See Constitutional Law, III, 9; Procedure, 2.
BLACK PANTHER PARTY. See Constitutional Law, III, 8;
Grand Juries, 4.
BOARD OF DIRECTORS. See Taxes, 1- 3.
BOARD OF REGENTS. See Constitutional Law, I, 5; Ill, 9;
Procedure, 2-3.
BRIBERY. See Appeals, Constitutional Law, VII,
Jurisdiction,
BUGGING ACTIVITIES. See Grand Juries, 1.
BURDEN OF PROOF. See Constitutional Law, III, 2, 4; IV, 2.
BURLINGTON NORTHERN RAILROAD. See Administrative
Procedure, 1-5; Interstate Commerce Commission, 1-5; Judicial
Review, 2-6.
BUSINESS CONSTRAINTS. See Taxes, 1-3.
INDEX 949
CALIFORNIA. See Constitutional Law, III, 8; Grand Juries, 4.
CAMPUS ORGANIZATIONS. See Constitutional Law, III, 2, 4;
IV, 2.
CAPITAL CASES. See Constitutional Law, II, 2; Criminal
Law, I.
CASE AND CONTROVERSY. See Constitutional Law, III, 3;
Justiciability.
CENSORSHIP. See Constitutional Law, III, 8; Grand Juries, 4.
CENTRAL CONNECTICUT STATE COLLEGE. See Constitutional
Law, III, 2, 4; IV, 2.
CHALLENGES. See Constitutional Law, V; Evidence, 3.
CHAPTERS OF SDS. See Constitutional Law, III, 2, 4; IV, 2.
CHICAGO. See Constitutional Law, III, 5.
CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD.
See Administrative Procedure, 1-5; Interstate Commerce Commission,
1-5; Judicial Review, 2---6.
CHILLING EFFECT. See Constitutional Law, III,
Justiciability.
CITIZENS' DUTY TO TESTIFY. See Constitutional Law, III,
8; Grand Juries, 4.
CIVIL CONTEMPT. See Grand Juries, l.
CIVIL DISOBEDIENCE. See Constitutional Law, III, 3;
Justiciability.
CIVILIAN ACTIVITY. See Constitutional Law, III, 3;
Justiciability.
CIVIL RIGHTS. See Constitutional Law, III, 5---6.
CLASSIFIED DOCUMENTS. See Appeals, 2-3; Constitutional
Law; VII, 2-6; Grand Juries, 2-3, 5.
CLOSELY HELD CORPORATIONS. See Taxes, 1-3.
COERCION. See Confessions; Constitutional Law, IV, 1.
COLLEGE PROFESSORS. ~ee Constitutional Law, III, 9; Procedure,
2.
COLLEGES. See Constitutional Law, III, 2, 4; IV, 2.
COMMITTEE MEETINGS. See Appeals, 2- 3; Constitutional
Law, VII, 2-6; Grand Juries, 2-3, 5.
950 INDEX
COMMUNICATIONS BETWEEN SENATOR AND AIDES, See
Appeals, 2-3; Constitutional Law, VII, 2-6; Grand Juries,
2-3, 5.
COMMUNISM. See Constitutional Law, III, 1; Immigration and
Nationality Act; Judicial Review, 1.
COMPELLED TESTIMONY. See Appeals, 2-3; Constitutional
Law, III, 8; VII, 2-6; Grand Juries, 1-5.
COMPETITIVE EFFECTS. See Administrative Procedure, 1-5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
COMPULSORY PROCESS. See Constitutional Law, VI; Mootness;
Witnesses.
COMPUTER DATA. See Constitutional Law, III,
Justiciability.
CONDITIONAL LIBERTY. See Constitutional Law, I, 1-2, 4;
Paroles, 1-3.
CONDITIONS OF PAROLE. See Constitutional Law, I, 1-2, 4;
Paroles, 1-3.
CONDUCT OF SENATORS. See Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2-3, 5.
CONFERENCES. See Constitutional Law, III, 1; Immigration
and Nationality Act; Judicial Review, 1.
CONFESSIONS. See also Constitutional Law, IV, 1.
Wounded prisoner in extreme pain, under the influence of morphine-
Oral confession to hospital doctor.-Petitioner's oral confession
was invalid, having been the product of gross coercion and
part of the same "stream of events" that necessitated invalidation of
the written confession8. Beecher v. Alabama, p. 234.
CONFIDENTIAL INFORMANTS. See Constitutional Law, III,
8; Grand Juries, 4.
CONFRONTATION. See Constitutional Law, I, 1-2, 4; Paroles,
1-3.
CONFRONTATION CLAUSE. See Constitutional Law, VI;
Mootness; Witnesses.
CONGRESSIONAL AIDES. See Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2-3, 5.
CONGRESSMEN, See Appeals, I; Constitutional Law, VII, 1;
Jurisdiction.
CONNECTICUT. See Constitutional Law, III, 2, 4; IV, 2.
INDEX 951
CONSTITUTIONAL LAW. See also Appeals, 1-3; Confessions;
Criminal Law, 1-4; Evidence, 1-3; Grand Juries, 1-5; Immigration
and Nationality Act; Judicial Review, 1; Jurisdiction;
Justiciability; Mootness; Paroles, 1-3; Procedure, 1-3 ;
Witnesses.
I. Due Process.
1. Arrest for parole violation-Revocation of parole.-Though
parole revocation does not call for the full panoply of rights due a
defendant in a criminal proceeding, a parolee's liberty involves
significant values within the protection of the Due Process Clause of
the Fourteenth Amendment, and termination of that liberty requires
an informal hearing to give assurance that the finding of a parole
violation is based on verified facts to support the revocation. Morrissey
v. Brewer, p. 471.
2. Determination whether parole condition was violated.-Due
process requires a reasonably prompt informal inquiry conducted by
an impartial hearing officer near the place of the alleged parole violation
to determine if there is reasonable ground to believe that the
arrested parolee has violated a parole condition. The parolee should
receive prior notice of the inquiry, its purpose, and the alleged violations.
The parolee may present relevant information and (absent
security considerations) question adverse informants. The hearing
officer shall digest the evidence on probable cause and state the
reasons for holding the parolee for the parole board's decision.
Morrissey v. Brewer, p . 471.
3. Other shotgun improperly admitted into evidence-Claim not
raised below.-Petitioner's due process claim as to the shotgun was
not previously raised and therefore is not properly before this Court,
and in any event the introduction of the shotgun does not constitute
federally reversible error. Moore v. Illinois, p. 786.
4. Parolee arrested for parole violation-Hearing on proposed revocation
of parole.-At the revocation hearing, which must be conducted
reasonably soon after the parolee's arrest, minimum due
process requirements are: (a) written notice of the claimed violations
of parole; (b) disclosure to thr parolee of evidence against him;
( c) opportunity to be heard in person and to present witnesses and
documentary evidence; (d) the right to confront and c·ross-examine
adverse witnesses (unless the hearing officer specifically finds good
cause for not allowing confrontation); (e) a "neutral and detached"
hearing body such as a traditional parole board, members of which
need not be judicial officers or lawyers; and (f) a written statement
by the fa.ctfinders as to the evidence relied on and reasons for revoking
parole. Morrissey v. Brewer, p. 471.
952 INDEX
CONSTITUTION AL LAW-Continued.
5. Teacher hired for one academic year-Not rehired for ensuing
year-No prior hearing.-The Fourteenth Amendment does not require
opport.unity for a hearing prior to the nonrenewal of a nontenured
state teacher's contract, unless he can show that the nonrenewal
deprived him of an interest in "liberty" or that he had a
"property" interest in continued employment, despite the lack of
tenure or a formal contract. Here the nonretention of respondent,
absent any charges against him or stigma or disability foreclosing
other employment, is not tantamount to a deprivation of "liberty,"
and the terms of his employment accorded him no "property" interest
protected by procedural due process. Board of Regents v. Roth,
p. 564.
II. Eighth Amendment.
1. Conviction for murder-Death penalty imposed by jury.-The
sentence of death may not be imposed on petitioner. Moore v.
Illinois, p. 786.
2. Fourteenth Amendment-Death sentences imposed for rapes
and murder.-The imposition and carrying out of the death penalty
in these cases constitutes cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments. The judgment in each
case is therefore reversed insofar as it leaves undisturbed the death
sentence imposed, and the cases are remanded for further proceedings.
Furman v. Georgia, p. 238; Stewart v. Massachusetts, p. 845.
III. First Amendment.
1. Alien journal~t-M arxist scholar invited to participate in academic
conferences-Attorney General refused waiver of ineligibility.-
In the exercise of Congress' plenary power to exclude aliens or prescribe
the conditions for their entry into this country, Congress in
§ 212 (a) (28) of the Immigration and Nationality Act of 1952 has
delegated conditional exercise of this power to the Executive Branch.
When, as in this case, the Attorney General decides for a legitimate
and bona fide reason not to waive the statutory exclusion of an
alien, courts will not look behind his decision or weigh it against
the First Amendment interests of those who would personally communicatfl
with the alien. Kleindienst v. Mandel, p. 753.
2. Freedom of association-Assumed relati0118hip with the National
Students for a Democratic Society.-Insofar as the college's r!eni~l
of recognition to petitioners' group was based on an assumed relationship
with the National SDS, or was a result of disagreement with
the group's philosophy, or was a consequence of a fear of disruption,
for which there was no support in the record, the college's
INDEX 953
CONSTITUTIONAL LAW-Continued.
decision violated the petitioners' First Amendment rights. Healy v.
James, p. 169.
3. Freedom of association-Civil disorders-Army's compilation
of data on civilian political activities.-Civilians' claim that their
First Amendment rights are chilled, due to the mere existence of the
data-gathering system, doe.s not constitute a justiciable controversy
on the basis of the record in this case, disclosing as it does no showing
of objective harm or threat of specific future harm. Laird v.
Tatum, p. 1.
4. Freedom of association-Le! tist students organizing as Students
for a Democratic Society-Denial of recognition as campus organization.-
Lower courts erred in (1) &,counting the cognizable First
Amendment associational interest that petitioners had in furthering
their personal beliefs, and (2) assuming that the burden was on
petitioners to show entitlement to recognition by the college rather
than on the college to justify its nonrecognition of the group, once
petitioners had made application ronformably to college requirements.
Healy v. James, p. 169.
5. Freedom of expression-Peace/ ut picketing near school in
violation of city ordinance.-City ordinan<·i- prohibiting all picketing
within 150 feet of a school, except peaceful picketing of any school
involved in a labor dispute, is violativc of the Equal Protection
Clause of t.he Fourteenth Amendment since it makes an impermissible
distinction between peaceful labor picketing and other peaceful
pickt-ting. Police Department of Chicago v. Mosley, p. 92; Grayned
v. City of Rockford, p. 104.
6. Freedom of speech-Antinoise ordinance-Mass demonstration
while school is in session.-Antinoise ordinance prohibiting a person
while on grounds adjacent to a building in which a school is in
session from willfully making a noise or diversion that disturbs or
tends to disturb the peace or good order of tht' school session is not
unconstitutionally vague since, with fair warning, it prohibits only
actual or imminent, and willful, interference with normal school
activity, and is not a broad invitation to discriminatory enforcement;
nor is the ordinance overbroad as unduly interfering with First
Amendment rights since expressive activity is prohibited only if it
" materially disrupts classwork." Grayned v. City of Rockford,
p. 104.
7. Freedom of the press- Obscenity statute--Underground neu·s-
]Japer's publication of pictures of nudes and a sex poem.-In the
C'Ontext in which they appeared, the photographs were rationally re954
INDEX
CONSTITUTIONAL LAW-Continued.
lated to a news article, in conjunction with which they appeared,
and were entitled to First and Fourteenth Amendment protection.
Jn view of the poem's content and placement with other poems
inside the newspaper, its dominant theme cannot be said to appeal
to prurient interest. Kois v. Wisconsin, p. 229.
8. Newspaper reporters-Grand jury subpoenas-Protection of
confidential, sources .-The First Amendment does not relieve a newspaper
reporter of the obligation that all citizens have to respond
to a grand jury subpoena and answer questions relevant to a criminal
investigation, and therefore the Amendment does not afford
him a constitutional testimonial privilege for an agreement he makes
to conceal facts relevant to a grand jury's investigation of a crime
or to conceal the criminal conduct of his source or evidence thereof.
Branzburg v. Hayes, p. 665.
9. Professor's public statements critical, of administration-Oney
ear employment contract not renewed.-Lack of a contractual or
tenure right to re-employment, taken alone, did not defeat respondent's
claim that the nonrenewal of his contract violated his free
speech right under the First and Fourteenth Amendments. The
District Court erred in foreclosing determinatif)n of the contested
issue whether the decision not to renew was based on respondent's
exercise of his right of free speech. Perry v. Sindermann, p. 593.
IV. Fourteenth Amendment.
J. Due process-Wounded prisoner in extreme pain, under the
influence of morphine-Oral, confession to hospital, doctor.-Petiti')
ner's oral confession was invalid, having been the product of
gross coercion and part of the same "stream of events" that necessitated
invalidation of the written confessions. Beecher v. Alabama,
p. 234.
2. Procpdural due process-Proper basis for nonrecognition.-
Proper basis for nonrecognition of local chapter of SDS might
have been afforded by a showing that the petitioners' group refused
to comply with a rule requiring them to abide by reasonable campus
regulations. Since the record is not clear whether the college ha.s
such a rule and, if so, whether petitioners intend to observe it, these
issues remain to be resolved. Healy v. James, p. 169.
V. Fourth Amendment.
Warrant authorizing search for, and seizure of, stolen whiskey-
Searched premi,ses owned by petitioner's father-Petitioner not
present.-Since the Government now suggests that the warrant was
invalid, and since the record is inadequate for a determination of
INDEX 955
CONSTITUTIONAL LAW-Continued.
whether petitioner had an interest in the searched premises that would
afford him standing under Mancusi v. DeForte, 392 U. S. 364, to
challenge the legality of the search, the judgment of the Court of
Appeals is vacated and the case remanded for further proceedings.
Combs v. United States, p. 224.
VI. Sixth Amendment.
State's witness moved permanently to foreign country.-Where
a State's witness is bona fide unavailable, the requirements of the
Confrontation Clause are met when prior-recorded testimony of
the witness is admitted in second trial if that prior testimony bears
"indicia of reliability" that would afford "the trier of fact a satisfactory
basis for evaluating the truth of the prior statement."
Mancusi v. Stubbs, p. 204.
VII. Speech or Debate Clause.
1. Former United States Senator charged with solicitation and
acceptance of bribes-Vote on pending legislation.-Although the
Speech or Debate Clause protects Members of Congress from
inquiry into legislative acts or the motivation for performiince of
such acts, it does not protect all conduct relating to the legislative
process. Since in this case prosecution of the bribery char11:r,s does
not necessitate inquiry into legislative acts or motivation, the
District Court erred in holding that the Speech or Debate Clause
required dismissal of the indictment. United States v. Brewster,
p. 501.
2. Interrogation of Senator's aide-Scope of questioning.-Aide
may be questioned by the grand jury about the source of classified
documents in the Senator's possession, as long as the questioning
implicates no legislative act. The Court of Appeals' protective
order in other respects would suffice if it forbade questioning the
aide or others about the conduct or motives of the Senator or his
aides at the subcommittee meeting; communications between the
Senator and his aides relating to that meeting or any legislative
act of the Senator; or steps of the Senator or his aides preparatory
for the meeting, if not relevant to third-party crimes. Gravel v.
United States, p. 606.
3. Questioning Senator's aide-Protective order.- The Court of
Appeals' protective order was overly broad in enjoining interrogation
of the aide with respect to any act, "in the broadest sense,"
that he performed within the scope of his employment., since the
aide's immunity extended only to legislative acts as to which the
Senator would be immune. Gravel v. United States, p. 606.
956 INDEX
CONSTITUTIONAL LAW-Continued.
4. Senate subcommittee meeting-Chairman's aide's preparations
for meeting.-The Speech or Debate Clause applies not only to a
Member of Congress but also to his aide, insofar as the aide's conduct.
would be a protected legislative act if performed by the
Member himself. Gravel v. United States, p. 606.
5. Senate subcommittee meeting-Classified documents in public
record-Grand jury investigating private republication.-Thc Speech
or Debate Clause does not extend immunity to the Senator's aide
from testifying before the grand jury about the alleged arrangement
for private publication of the Pentagon Papers, as such publication
had no connection with the legislative process. Gravel v.
United States, p. 606.
6. Testimonial privilege.-Senator's aide had no nonconstitutional
testimonial privilege from being questioned by the grand jury in
connection with its inquiry into whether private publication of the
Pentagon Papers violated federal law. Gravel v. United States,
p. 606.
CONTEMPT. See Constitutional Law, III, 8; Grand Juries, l, 4.
CONTINGENCY PLANS. Sec Constitutional Law, III, 3;
Justiciability,
CONTRACTS OF EMPLOYMENT. See Constitutional Law, I,
5; III, 9; Procedure, 2-3.
CONTROLLING STOCKHOLDERS. See Taxes, 1-3.
CONVICTIONS. See Constitutional Law, VI; Mootness;
Witnesses.
CORPORATE DIRECTORS. See Taxes, 1-3.
CORPORATIONS. Sec Taxes, 1-3.
COUNSEL. See Constitutional Law, VI; Mootness; Witnesses.
COURT ORDERS. See Constitutional Law, III, 8; Grand
Juries, 4.
CRIMINAL LAW. See also Appeals, 1-3; Confessions; Constitutional
Law, I, 1-4; II, 1-2; III, 6--8; IV, 1; V; VI;
VII, 1-6; Evidence, 1- 3; Grand Juries, 1-5; Mootness; Paroles,
1-3; Procedure, 1; Witnesses.
1. Death sentences imposed for rapes and murder.-The imposition
and carrying out of the death penalty in these cases constitutes
cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments. The judgment in each case is therefore
reversed insofar as it leaves undisturbed the death sentence
INDEX 957
CRIMINAL LAW-Continued.
imposed, and the cases are remanded for further proceeding8.
Furman v. Georgia, p. 238.
2. Eighth Amendment-Conviction for murder-Death penalty
imposed by jury .-The sentence of death may not be imposed on
petitioner. Moore v. Illinois, p. 786.
3. Pretrial motion for disclosure-Criminal trial-Items of evidence
helpful to the defense.-The evidentiary items (other than
a diagram) on which petitioner bases his suppression claim relate
to a witness' misidentification of petitioner as "Slick" and not to
the identification, by that witness and others, of petitioner as the
person who made the incriminating statements. These evidcntiary
items are not material under the standard of Brady v. Afaryland,
373 U. S. 830. Moore v. Illinois, p. 786.
4. Pretrial motion for disclosure-Murder trial-Item of evidence
helpful, to the defense.-A diagram showing the positions of customers
at a bar where a shotgun slaying occurred does not support
petitioner's contention that the State knowingly permitted false
testimony to remain uncorrected, in violation of Napu• v. Illinois,
360 U. S. 264, since the diagram does not show that it was impossible
for a prosecution witness to see the shooting. Moore v. Illinois,
p. 786.
CRITICISM OF SCHOOL ADMINISTRATION. See Constitutional
Law, I, 5; III, 9; Procedure, 2-3.
CROSS-EXAMINATIONS. See Constitutional Law, I, 1-2, 4;
VI; Mootness; Paroles, 1-3; Witnesses.
CRUEL AND UNUSUAL PUNISHMENT. See Constitutional
Law, II, 1-2; Criminal Law, 1.
CUSTODY. See Constitutional Law, I, 1- 2, 4; Paroles, 1-3.
DATA-GATHERING SYSTEMS. See Constitutional Law, III,
3; Justiciability.
DEATH PENALTY. See Constitutional Law, II, 2; Criminal
Law, I.
DEATH SENTENCES. See Constitutional Law, II, 2; Criminal
Law, 1.
DECEDENTS' ESTATES. See Taxes, 1- 3.
DE FACTO TENURE PROGRAMS. See Constitutional Law,
III, 9; Procedure, 2.
DEFENSE DEPARTMENT. See Appeals, 2-3; Constitutional
Law, III, 3; VII, 2- 6; Grand Juries, 2- 3, 5; Justiciability.
958 INDEX
DEFENSES. See Constitutional Law, I, 3; II, 1; Criminal Law,
2-4; Evidence, 1-2; Grand Juries, 1; Procedure, 1.
DEMONSTRATIONS. See Constitutional Law, III, 5-6.
DENIAL OF RECOGNITION. See Constitutional Law, III, 2, 4;
IV, 2.
DETERRENT TO CAPITAL CRIMES. See Constitutional Law,
II, 2; Criminal Law, l.
DETROIT. See Constitutional Law, III, 3; Justiciability.
DIRECT APPEALS. See Appeals, 1; Constitutional Law, Vil, 1.
DISCLOSURE OF EVIDENCE. See Constitutional Law, I, 3;
II, l; Criminal Law, 2-4; Evidence, 1-2; Procedure, 1.
DISCRETIONARY AUTHORITY. See Constitutional Law, III,
1; Immigration and Nationality Act; Judicial Review, 1.
DISCRETION OF JUDGE OR JURY. See Constitutional Law,
II, 2; Criminal Law, 1.
DISCRIMINATORY PENALTIES. See Constitutional Law, II,
2; Criminal Law, 1.
DISMISSAL OF TEACHERS. See Constitutional Law, I, 5;
Procedure, 3.
DISORDERLY CONDUCT. See Confltitutional Law, ITI, 6.
DISORDERS. See Constitutional Law, III, 3; Justiciability.
DISRUPTION OF SCHOOLS. See Constitutional Law, III, 5-6.
DIVIDEND POLICY. See Taxes, 1-3.
DOMESTIC VIOLENCE. See Constitutional Law, III, 3;
Justiciability.
DRUGS. See Confessions; Constitutional Law, III, 8; IV, 2;
Grand Juries, 4.
DUE PROCESS. See Constitutional Law, I, 1-5; II, 1-2; III,
6, 9; Criminal Law, 1-4; Evidence, 1-2; Pa.roles, 1-3;
Procedure, 1-3.
DUTY TO DISCLOSE EVIDENCE. See Constitutional Law, I,
2; II, 1; Criminal La.w, 2-4; Evidence, 1-2; Procedure, 1.
ECONOMIC EFFECTS. See Administrative Procedure, 1-5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
EIGHTH AMENDMENT. See Constitutional La.w, I, 3; II, 1-2;
Criminal Law, 1-4; Evidence, 1-2; Procedure, 1.
INDEX 959
ELECTRONIC SURVEILLANCE. See Grand Juries, I.
EMPLOYER AND EMPLOYEES. See Constitutional Law, I, 5;
III, 9; Procedure, 2-3.
ENTRY OF ALIENS. See Constitutional Law, III, 1; Immigration
and Nationality Act; Judicial Review, 1.
EQUAL PROTECTION OF THE LAWS. See Constitutional
Law, II, 2; III, 5-6; Criminal Law, 1.
ESTATES AND TRUSTS. See Taxes, 1-3.
EVIDENCE. See also Administrative Procedure, 1-5; Constitutional
Law, I, 1-4; II, 1; V; Criminal Law, 2-4; Interstate
Commerce Commission, 1-5; Judicial Review, 2-6; Mootness;
Paroles, 1-3; Procedure, 1; Witnesses.
1. Pretrial motion for disclosure-Criminal trial-Items of evidence
helpful to the defense.-The evidentiary items (other than a
diagram) on which petitioner bases his suppression claim relate to
a witness' misidentification of petitioner as "Slick" and not to the
identification, by that witness and others, of petitioner as the
person who made the incriminating statements. These evidentiary
items are not material under the standard of Brady v. Maryland,
373 U. S. 830. Moore v. Illinois, p. 786.
2. Pretrial motion for disclosure-Murder trial-Item of evidence
helpful to the def ense.-A diagram showing the positions of customers
at a bar where a shotgun slaying occurred does not support
petitioner's contention that the State knowingly permitted false
testimony to remain uncorrected, in violation of Napue v. Illinois,
360 U. S. 264, since the diagram does not show that it was impossible
for a prosecution witness to see the shooting. Moore v.
Illinois, p. 786.
3. Warrant authorizing search for, and seizure of, stolen whiskey-
Searched premises owned by petitioner's father-Petitioner not
present.-Since the Government now suggests that the warrant
was invalid, and since the record is inadequate for a determination
of whether petitioner had an interest in the searched premises that
would afford him standing under Mancusi v. DeForte, 392 U. S.
364, to challenge the legality of the search, the judgment of the
Court of Appeals is vacated and the case remanded for further
proceedings. Combs v. United States, p. 224.
EXCLUSION OF ALIENS. See Constitutional Law, III, 1;
Immigration and Nationality Act; Judicial Review, 1.
EXCULPATORY EVIDENCE. See Constitutional Law, I, 3; II,
I; Criminal Law, 2-4; Evidence, 1-2; Procedure, 1.
960 INDEX
EXECUTIONS. See Constitutional Law, Il, 2; Criminal Law, 1.
EXECUTIVE DISCRETIONARY AUTHORITY. See Constitutional
Law, III, I; Immigration and Nationality Act; Judicial
Review, I.
''EXPECTANCY" OF RE-EMPLOYMENT. See Constitutional
Law, III, 9; Procedure, 2.
EYEWITNESSES. See Constitutional Law, I, 3; II, 1; Criminal
Law, 2-4; Evidence, 1-2; Procedure, I.
FACULTY MEMBERS. See Constitutional Law, III, 9; Procedure,
2.
FAIR TRIALS. See Constitutional Law, I, 3; II, 1; Criminal
Law, 2-4; Evidence, 1-2; Procedure, 1.
FALSE EVIDENCE. See Constitutional Law, I, 3; II, 1; Criminal
Law, 2-4; Evidence, 1- 2; Procedure, I.
FALSE TESTIMONY. See Constitutional Law, I, 3; II, 1; Criminal
Law, 2-4; Evidence, 1-2; Procedure, I.
FAMILY CORPORATIONS. See Taxes, 1--3.
FEDERAL CRIMES. See Appeals, 1--3; Constitutional Law, III,
8; V; VII, 1--6; Evidence, 3; Grand Juries, 1-5: Jurisdiction.
FEDERAL ESTATE TAXES. See Taxes, 1-3.
FEDERAL GRAND JURIES. See Grand Juries, 1.
FEDERAL-STATE RELATIONS. See Constitutional Law, II,
2; Criminal Law, 1.
FIFTH AMENDMENT. See Grand Juries, I.
FIRST AMENDMENT. See Constitutional Law, III, 1- 9; IV,
2; Grand Juries, 4; Immigration and Nationality Act; Judicial
Review, 1; Justiciability; Procedure, 1-2.
FOREIGN WITNESSES. See Constitutional Law, VI ; Mootness;
Witnesses.
FORT HOLABIRD. Sec Constitutional Law, III, 3; Justiciability.
FOURTEENTH AMENDMENT. See Confessions; Constitutional
Law, I, 1-5; II, 1-2; III, 2, 4--7, 9; IV, 1-2; Criminal Law,
1-4; Evidence, 1-2; Paroles, 1-3; Procedure, 1-3.
FOURTH AMENDMENT. See Constitutional Law, V; Evidence,
3.
FREEDOM OF ASSOCIATION. See Constitutional Law, III,
1-2, 4; IV, 2; Immigration and Nationality Act; Judicial
Review, 1.
INDRX 961
FREEDOM OF EXPRESSION. See Constitutional Law, III, 2,
4-6; IV, 2.
FREEDOM OF SPEECH. See Constitutional Law, I, 5; III,
9; Procedure, 2-3.
FREEDOM OF THE PRESS. See Constitutional Law, III, 7-8;
Grand Juries, 4.
FREIGHT CARS. See Administrative Procedure, 1- 5; Interstate
Commerce Commission, 1-5; Judicial Review, 2---6.
GENERAL IMMUNITY FROM CRIMINAL LAWS. See Appeals,
2-3; Constitutional Law, VII, 2-6; Grand Juries,
2-3, 5.
GEORGIA. See Constitutional Law, II, 2; Criminal Law, 1.
GIFTS. See Taxes, 1-3.
GOOD-FAITH EFFORTS. See Constitutional Law, V l; Mootness;
Witnesses.
GOVERNMENT BENEFITS. See Constitutional Law, III, 9;
Procedure, 2.
GRAND JURIES. See also Appeals, 2--3; Constitutional Law,
III, 8; VII, 2-6.
I. Grand jury investigation-Re/'usol to testify-Questions based
on information from intercepted conversations.-Where a grand
jury witness is adjudicated in civil contempt under 28 U. S. C.
§ 1826 (a) for refusing "without just cause shown to comply with
an order of the court to testify," the witness may invoke as a
defense 18 U. S. C. § 2515, which directs that "[w]henever any
wire or oral communication has been intercepted, no part of the
contents of such communication and no evidence derived therefrom
may be received in evidence in any . . . proceeding in or before
any ... grand jury ... ," since a showing that the interrogation
would be based upon the illegal interception would constitute the
"just cause" that precludes a finding of contempt. Gelbard v.
United States, p. 41.
2. Interrogation of Senator's aide-Scope of questioning.-Aide
may be questioned by the grand jury about the source of clas.;;ified
documents in the Senator's possession, as long as the questioning
implicates no legislative act. The Court of Appeals' protectiw
order in other respects would suffice if it forbade questioning the
aide or others about the conduct or motives of the Senator or his
aides at the subcommittee meeting ; communications between the
Senator and his aides relating to that meeting or any legislative
act of the Senator; or steps of the Senator or his aides preparatory
962 INDEX
GRAND JURIES-Continued.
for the meeting, if not relevant to third-party crimes. Gravel v.
United States, p. 606.
3. Investigation-Testimonial privilege.-Senator's aide had no
nonconstitutional testimonial privilege from being questioned by
the grand jury in connection with its inquiry into whether private
publication of the Pentagon Papers violated federal law. Gravel v.
United States, p. 606.
4. Newspaper reporters-Grand jury subpoenas-Protection of
confidential sources.-The First Amendment does not relieve a newspaper
reporter of the obligation that all citizens have to respond
to a grand jury subpoena and answer questions relevant to a criminal
investigation, and therefore the Amendment does not afford
him a constitutional testimonial privilege for an agreement he
makes to conceal facts relevant to a grand jury's investigation of
a crime or to conceal the criminal conduct of his source or evidence
thereof. Branzburg v. Hayes, p. 665.
5. Senate subcommittee meeting-Cla.ssified documents in public
record-Grand jury investigating private republication.-The Speech
or Debate Clause does not extend immunity to the Senator's aide
from testifying before the grand jury about the alleged arrangement
for private publication of the Pentagon Papers, as such
publication had no connection with the legislative process. Gravel
v. United States, p. 606.
GROSS COERCION. See Confessions; Constitutional Law, IV, 1.
GROSS ESTATES. See Taxes, 1-3.
HABEAS CORPUS. See Constitutional Law, VI; Mootness;
Wit;iesses.
HARMLESS ERROR. See Constitutional Law, I, 3; II, 1; Crim•
inal Law, 2--4; Evidence, 1-2; Procedure, I.
HARRISBURG. See Grand Juries, 1.
HARSH PENALTIES. See Constitutional Law, II, 2; Criminal
Law, I.
HASHISH. See Constitutional Law, III, 8; Grand Juries, 4.
HEARINGS. See Constitutional Law, I, 1-2, 4-5; III, 9; Paroles,
1-3; Procedure, 2-3.
HIGH SCHOOLS. See Constitutional Law, III, 5-6.
HOSPITAL AUTHORITIES. See Confessions; Constitutional
Law, IV, 1.
INDEX 963
IDENTIFICATION OF SOURCES. See Constitutional Law, III,
8; Grand Juries, 4.
IDENTIFICATIONS. See Constitutional Law, I, 3: II, l; Criminal
Law, 2-4; Evidence, 1-2; Procedure, I.
ILLINOIS. See Constitutional Law, I, 3; II, 1; III, 5-6; Criminal
Law, 2-4; Evidence, 1-2; Procedure, 1.
IMMIGRATION AND NATIONALITY ACT. See a)s'.) Constitutional
Law, III, 1; Judicial Review, L
Alien journaHst-Marxist scholar invited to participate in academic
conferences-Attorney General refused waiver of ineligibility.-
In the exercise of Congress' plenary power to exclude aliens
or prescribe the conditions for their entry into this country, Congress
in § 212 (a) (28) of the Immigration and Nationality Act of 1952
has delegated conditional exercise of this power to the Executive
Branch. When, as in this case, the Attorney General decides for
a legitimate and bona fide reason not to waive the statutory exclusion
of an alien, courts will not look brhind his deci5ion or weigh
it against the First Amendment interests of those who would
personally communicate with the alien. Kleindienst Y. Mandel,
p. 753.
IMMUNITY FROM PROSECUTION. See Appeals, 1; Constitutional
Law, VII, 1; Jurisdiction.
IMMUNITY FROM TESTIFYING. See Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2-3, 5.
IMPARTIAL HEARING OFFICERS. See Constitutional Law,
I, 1-2, 4; Paroles, 1-3.
IMPEACHMENT OF IDENTIFICATION. See Constitutional
Law, I, 3; II, 1; Criminal Law, 2-4; Evidence, 1-2; Procedure,
1.
INCLUSION IN GROSS ESTATE. See Taxes, 1-3.
INCLUSION PETITIONS. See Administrative Procedure, 1--5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
INCOME FROM TRUST. See Taxes, 1-3.
INCRIMINATING STATEMENTS. See Constitutional Law, I,
3; II, 1; Criminal Law, 2-4; Evidence, 1-2; Procedure, 1.
INDEPENDENCE OF LEGISLATURE. See Appeals, 1; Constitutional
Law, VII, 1; Jurisdiction.
INDICIA OF RELIABILITY. See Constitutional Law, VI;
Mootness; Witnesses.
964 INDEX
INDICTMENTS. See Appeals, 1; Constitutional Law, VII, 1;
Jurisdiction.
INELIGIBILITY FOR ADMISSION. See Constitutional Law,
III, 1; Immigration and Nationality Act; Judicial Review, 1.
INFLAMMATORY EVIDENCE. See Constitutional Law, I, 3;
II, 1; Criminal Law, 2--4; Evidence, 1-2; Procedure, 1.
INFORMAL INQUIRIES. See Constitutional Law, I, 1-2, 4;
Paroles, 1-3.
INHIBITING EFFECT. See Constitutional Law, III,
Justiciability.
INSUBORDINATION. See Constitutional Law, III, 9; Procedure,
2.
INSURRECTIONS. See Constitutional Law, III, 3; Justiciability.
INTELLIGENCE AGENCIES. See Constitutional Law, Ill, 3;
Justiciability.
INTERCEPTED CONVERSATIONS. See Grand Juries, 1.
INTERCHANGE TRACKS. Sec Administrative Procedure, 1-5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
INTEREST IN "LIBERTY." See Constitutional Law, I, 5;
Procedure, 3.
INTERNAL REVENUE CODE. See Taxes, 1-3.
INTERROGATIONS. See Grand Juries, 1.
INTERSTATE COMMERCE COMMISSION. See also Administrative
Procedure, 1-5; Judicial Review, 2- 6.
1. Line-haul carriers jointly acquiring control of switching railroad-
Related application for trackage rights by one petitioner for
inclusion.-The denial of tra.ckage rights to Southern Pacific ( on
the ground that SP was "not entitled to serve Peninsula or Rivergate")
should be reconsidered by the ICC, in conjunction with the
reappraisal of the issues arising under § 5 (2) of the Interstate Commerce
Act. Port of Portland v. United States, p. 811.
2. Line-haul carriers petitioning for inclusion in control of switching
railroad-1 CC decision-Applicable legal principles .-In view
of uncertainties about the northern access to Portland's Rivergate
industrial complex-given the physical limitations of the present
facilities of Peninsula Terminal Co.-and the apparent fact that
physical operation over Peninsula into Rivergate was not at
issue here, approval of the ICC order, with its protective conINDEX
965
INTERSTATE COMMERCE COMMISSION-Continued.
ditions, may still be in the public interest, but the announced
grounds for the ICC decision do not comport with the applicable
legal principles. Port of Portland v. United States, p. 811.
3. Line-haul carriers petitioning for inclusion in joint purchase of
switching ,railroad-Market shares and existing traffic.-In stressing
the small share in Peninsula Terminal Co.'s traffic that Milwaukee
Railroad had before the Northern Lines Merger, the ICC ignored
any possible increase in that share after Condition 24 (a) of
that merger took effect. In announcing a principle of preserving
the market shares of the two railroads currently connectjng
with Peninsula, the ICC failed to explain why it was not
taking into account the potentially enormous traffic over Peninsula,
should Peninsula become the northern route into Port.land's Rivergate
industrial complex. Port of Portland v. United States, p. 811.
4. Line-haul carriers seeking joint acquisition of switching railroad-
Petitions for inclusion denied by ICC .. .......CJn the record in
this case (which is ambiguous with regard to many factual
and procedural issues) it has not been shown that the ICC's
order authorizing Union Pacific and Burlington Northern alone
to acquire control of the Peninsula Terminal Co. met the "public
interest" standard of § 5 (2) of the Interstate Commerce Act.
Port of Portland v. United States, p. 811.
5. Petitions for inclusio11r-Shifting market shares-Anticompetitive
effects.-The ICC's denial of inclusion of the Southern Pacific
Transportation Co. and the Milwaukee Railroad because their gain
would work a corresponding loss to Burlington Northern and Union
Pacific is not a proper approach under § 5 (2) of the Interstate
Commerce Act, given the principle that the anticompetitive effect6
of any § 5 (2) transaction must be explicitly considered. Port of
Portland v. United States, p. 811.
INTERSTATE SHIPMENTS, Sec Constitutional Law, V; Evidence,
3.
INTER VIVOS TRUSTS. See Taxes, 1-3.
INVALIDITY OF STATUTES, See Appeals, I; Constitutional
Law, VII, 1; Jurisdiction.
INVASION OF PRIVACY. See Grand Juries, 1.
INVESTIGATIONS. See Appeals, 2-3; Constitutional Law, III,
8; VII, 2-6; Grand Juries, 2-5.
INVESTIGATIVE AGENCIES. See Constitutional Law, Ill, 3;
Justiciability.
966 INDEX
INVOCATION OF THE PRIVILEGE. See Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2-3, 5.
IOWA. See Constitutional Law, I, 1-2, 4; Paroles, 1-3.
IRRELEVANT EVIDENCE. See Constitutional Law, I, 3; II,
1; Criminal Law, 2-4; Evidence, 2-3; Procedure, 1.
IRREVOCABLE TRUSTS. See Taxes, 1-3.
JOB SECURITY. See Constitutional Law, I, 5; III, 9; Procedure,
2- 3.
JOINT ACQUISITIONS. See Administrative Procedure, 1-5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
JUDGMENTS. See Appeals, 1; Constitutional Law, VII, 1;
Jurisdiction.
JUDICIAL OFFICERS. See Constitutional Law, III, 1- 2, 4;
Pa.roles, 1-3.
JUDICIAL REVIEW, See also Administrative Procedure, 1-5;
Appeals, 2-3; Constitutional Law, III, 1, 3; V; VII, 2-6;
Evidence, 3; Immigration and Nationality Act; Interstate
Commerce Commission, 1-5; ,Justiciability.
1. Alien journalist-Marxist scholar invited to participate in
academic conferences-Attorney General refused waiver of ineligibility.--
In the exercise of Congress' plenary power to exclude
aliens or prescribe the conditions for their entry into this country,
Congress in § 212 (a) (28) of the Immigration and Nationality Act
of 1952 has delegated conditional exercise of this power to the
Executive Branch. When, as in this case, the Attorney General
decides for a legitimate and bona fide reason not to waive the
statutory exclusion of an alien, courts will not look behind his
decision or weigh it against the First Amendment interests of those
who would personally communicate with the alien. Kleindienst v.
Mandel, p. 753.
2. Line-haul carriers jointly acquiring control of switching rauroad-
Related application for track age rights by one petitioner
for inclusion.- The denial of trackage rights to Sruthern Pacific
(on the ground that SP was "not entitled to serve Peninsula or
Rivergate") should be reconsidered by the Interstate Commerce
Commission in conjunction with the reappraisal of the issues arising
under § 5 (2) of the Interstate Commerce Act. Port of Portland v.
United States, p. 811.
INDEX 967
JUDICIAL REVIEW-Continued.
3. Line-haul carriers petitioning for inclusion in control of switching
railroad-ICC decision-Applicable legal principles.-In view
of uncertainties about the northern access to Portland's Rivergate
industrial complex-given the physical limitations of the
present facilities of Peninsula Terminal Co.-and the apparent
fact that physical operation over Peninsula into Rivergate was
not at issue here, approval of the ICC order, with its protective
conditions, may still be in the public interest, but the
announced grounds for the ICC decision do not comport with
the applicable legal principles. Port of Portland v. United States,
p. 811.
4. Line-haul carriers petitioning for inclmion in joint purchase
of switching milroad-M arket shares and existing traffic.- In stressing
the small share in Peninsula Terminal Co.'s traffic that Milwaukee
Railroad had before the Northern Lines Merger, the ICC igno"ed
any possible increase in that share after Condition 24 (a) of the
merger took effect. In announcing a principle of preserving the
market shares of the two railroads currently connecting with Peninsula,
the ICC failed to explain why it was not taking into account
the potentially enormous traffic over Peninsula, should Peninsula
become the northern route into Portland's Rivergate industrial complex.
Port of Portland v. United States, p. 811.
5. Line-haul carriers seeking joint acquisition of switching railroad-
Petitions of inclusion denied by ICC.-On the record in this
case (which is ambiguous with regard to many factual and procedural
issues) it has not been shown that the ICC's order authorizing
Union Pacific and Burlington Northern alone to acquire control
of the Peninsula Terminal Co. met the "public interest" standard of
§ 5 (2) of the Interstate Commerce Act. Port of Portland v. United
States, p. 811.
6. Petitions for inclusion-Shifting market shares-Anticompetitive
effects.-The ICC's denial of inclusion of the Southern Pacific
Transportation Co. and the Milwaukee Railroad because their gain
would work a corresponding loss to Burlington Northern and Union
Pacific is not a proper approach under § 5 (2) of the Interstate
Commerce Act, given the principle that the anticompetitive effects
of any § 5 (2) transaction must be explicitly considered. Port of
Portland v. United States, p. 811.
JUNIOR COLLEGE PROFESSORS. See Constitutional Law,
III, 9; Procedure, 2.
968 INDEX
JURISDICTION. See also Appeals, 1; Constitutional Law, VII, 1.
District Court "decision or judgment setting aside, or dismissing"
the indictment-Direct appeal.-This Court has jurisdiction under
18 U. S. C. § 3731 (1964 ed., Supp. V) to hear the appeal, since
the District Court's order was based upon its determination of the
constitutional invalidity of 18 U. S. C. §§ 201 (c) (1) and 201 (g)
on the facts as alleged in the indictment. United States v. Brewster,
p. 501.
"JUST CAUSE" SHOWN. See Grand Juries, 1.
JUSTICIABILITY. See also Constitutional Law, III, 3.
First Amendment-Freedom of association-Civil disorders-
Army'.~ compilation of data on civilian political activities.-Civilians'
claim that their First Amendment rights are chilled, due to the
mere existence of the data-gathering system, does not constitute a
justiciable controversy on the basis of the record in this case,
disclosing as it does no showing of objective harm or threat of
specific future harm. Laird v. Ta.tum, p. 1.
KALEIDOSCOPE. See Constitutional Law, III, 7.
KEi:UUCKY. See Constitutional Law, III, 8; Grand Juries, 4.
KIDNAPING. See Grand Juries, I.
LABOR DISPUTES. See Constitutional Law, III, 5--6.
LAS VEGAS. See Grand Juries, 1.
LAWFUL POLITICAL ACTIVITY. See Constitutional Law, III,
3; Justiciability.
LEFT-WING STUDENTS. See Constitutional Law, III, 2, 4;
IV, 2.
LEGAL CONSTRAINTS. See Taxes, 1-3.
LEGALITY OF SEARCH. See Constitutional Law, V; Evidence,
3.
LEGAL STANDARDS. See Administrative Procedure, 1-5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
LEGISLATIVE ACTS. See Appeals, 1-3; Constitutional Law,
VII, 1-6; Grand Juries, 2-3, 5; Jurisdiction.
LEGISLATIVE INDEPENDENCE. See Appeals, I; Constitutional
Law, VII, 1; Jurisdiction.
LIBERTY OF PAROLEES. See Constitutional Law, I, 1-2, 4;
Paroles, 1-3.
INDEX 969
LINE-HAUL CARRIERS. See Administrative Procedure, 1- 5 ;
Interstate Commerce Commission, 1-5 ; Judicial Review, 2-6.
LOCAL CHAPTERS. See Constitutional Law, III, 7.
LOUISVILLE. See Constitutional Law, III, 8; Grand Juries, 4.
MANAGEMENT POWERS. See Taxes, 1--3.
MANDATORY SENTENCES. See Constitutional Law, II, 2;
Criminal Law, 1.
MARIHUANA. See Constitutional Law, III, 8; Grand Juries, 4.
MARKET SHARES. See Administrative Procedure, 1-5; Interstate
Commerce Commission, 1-5; Judicial Review, 2- 6.
MARXIST THEORETICIAN. See Constitutional Law, III, 1 ;
Immigration and Nationality Act; Judicial Review, 1.
MASSACHUSETTS. See Constitutional Law, III, 8; Grand
Juries, 4.
MATERIALITY. See Constitutiona l Law, I, 3; II, l; Criminal
Law, 2-4; Evidence, 1-2; Procedure, 1.
MEMBERS OF CONGRESS. Sec Appeals, 1-3; Constitutional
Law, VII, 1-6; Grand Juries, 2- 3, 5; Jurisdiction.
MERGERS. See Administrative Procedure, 1-5; Interstate Com -
merce Commission, 1-5; Judicial Review, 2--6.
MILWAUKEE RAILROAD. See Administrative Procedure, 1-5;
Interstate Commerce Commission, 1- 5; Judicial Review, 2--6.
MINORITY STOCKHOLDERS. See Taxes, 1- 3.
MISCONDUCT OF MEMBERS. See Appeals, 1; Constitutional
Law, VII, 1 ; Jurisdiction.
MISTAKEN IDENTITY. See Constitutional Law, I , 3; II, 1;
Criminal Law, 2-4; Evidence, 1-2; Procedure, 1.
MOOTNESS. See also Constitutional Law, VI ; Witnesses.
Second-offender sent ence in New York based on previous Tennessee
felony conviction-Tennessee conviction allegedly unconstitutional-
Previous T exas conviction still on appeal.-New York State's
resentencing of respo ndent did not moot t he instant case since his
appeal involving the validity of still another conviction, in Texas,
is s till in the N ew York state courts a nd t herefor e New York State
has a present inter est in the availability of the Tennessee conviction
as a predicate fo r the stiffer punishment. Mancusi v. Stubbs, p . 204.
MORPHINE. See Confessions; Constitutional Law, IV, 1.
970 INDEX
MOTION FOR DISCLOSURE. See Constitutional Law, I, 3; II,
l; Criminal Law, 2-4; Evidence, 1-2; Procedure, I.
MOTIONS TO SUPPRESS. See Constitutional Law, V; Evidence,
3.
MOTION TO QUASH SUBPOENA. See Appeals, ~-3; Constitutional
Law, III, 8; VII, 2-6; Grand Juries, 2-5.
MOTIVATION FOR LEGISLATIVE ACTS. See Appeals, l;
Constitutional Law, VII, 1; Jurisdiction.
MOTIVES OF SENATORS. See Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2-3, 5.
MUNICIPALITIES. See Constitutional Law, III, 5-6.
MURDER. See Constitutional Law, II, 2; Criminal Law, 1.
MURDER WEAPONS. See Constitutional Law, I, 3; II, 1; Criminal
Law, 2-4; Evidence, 1-2; Procedure, 1.
NATIONAL SDS. See Constitutional Law, III, 2, 4; IV, 2.
NEGRO STUDENTS. See Constitutional Law, III, 5-6.
"NEUTRAL AND DETACHED" HEARING BODY. See Constitutional
Law, I, 1-2, 4; Paroles, 1-3.
NEVADA. See Grand Juries, 1.
NEW BEDFORD. See Constitutional Law, III, 8; Grand
Juries, 4.
NEWS ARTICLES. See Constitutional Law, III, 7.
NEWSMAN'S PRIVILEGE. See Constitutional Law, III, 8;
Grand Juries, 4.
NEWSPAPER REPORTERS. See Constitutional Law, III, 8·
Grand Juries, -1.
NEW YORK. See Constitutional Law, VI; Mootness; Witnesses.
NEW YORK TIMES. See Constitutional Law, III, 8; Grand
Juries, 4.
NONIMMIGRATION VISAS. See Constitutional Law, III, I;
Immigration and Nationality Act; Judicial Review, l.
NONRECOGNITION OF STUDENT ORGANIZATIONS. See
Constitutional Law, III, 2, 4; IV, 2.
NONRETENTION. See Constitutional Law, III, 9; Procedure, 2.
NONTENURED TEACHERS. See Constitutional Law, I, 5; III,
9; Procedure, 2-3.
INDEX 971
NORTHERN LINES MERGER. Se e Administrative Procedure,
1-5; Interstate Commerce Commission, 1-5; Judicial Review,
2-6.
NOTICE. See Constitutional Law, I , 1- 2, 4; Paroles, 1- 3.
OBJECTIVE HARM. See Constitutional Law, III,
Justiciability.
OBSCENITY. See Constitutional Law, III, 7.
3·
'
ODESSA JUNIOR COLLEGE. See Constitutional Law, III, 9;
Procedure, 2.
OFFICIAL ACTS. See Appeals, 1; Constitutional Law, VII, 1;
Jurisdiction.
OMNIBUS CRIME CONTROL AND SAFE STREETS ACT. See
Grand Juries, 1.
ONE-YEAR CONTRACTS. See Constitution al Law, III, 9; Procedure,
2.
OPPORTUNITY TO BE HEARD. See Constitutional Law, I,
1-2; 4; Paroles, 1-3.
ORAL CONFESSIONS. See Confessions; Constitutional Law,
I V, 1.
ORDINANCES. See Constitutional Law, III, 5-6.
OREGON. See Administrative Procedure, 1-5; Interstate Commerce
Commission, 1- 5; Judicial Review, 2-6.
ORGANIZED CRIME CONTROL ACT. See Grand Juries.
OVERBREADTH. See Constitutional Law, I II, :3, 5-6;
Justiciability.
PAROLES. See also Constitutional Law, I, 1-2, 4.
1. Arrest for parole violation-Revocation of parole.- T hough
parole revocation does not call for the full panoply of rights due
a defendan t in a criminal proceeding, a parolee's liberty involves
significant values within the protection of the Due Process Clause
of the F ourteenth Amendment, and termination of that l iberty
requires an informal hearing to give assurance that the finding of
a par ole violation is based on verified facts to support the revocation.
Morrissey v. Brewer, p. 471.
2. Determination whether parole condition was violated.-Due
process requires a r easonably prompt informal inquir? conducted
by an impartial hearing officer near t h e place of the allf'ged parole
violation to deter mine if there is reasonable ground to beliew that
972 INDEX
PAROLES-Continued.
the arrested parolee has violated a parole condition. The parolee
should receive prior notice of the inquiry, its purpose, and the
alleged violations. The parolee may present relevant information
and (absent security considerations) question adverse informants.
The hearing officer shall digest the evidence on probable cause and
state the reasons for holding the parolee for the parole board's
decision. Morrissey v. Brewer, p. 471.
3. Parolee arrested for parole violation-Hearing on proposed
revocation of parole.-At the revocation hearing, which must be
conducted reasonably soon after the parolee's arrest, minimum due
process requirements are: (a) written notice of the claimed violations
of parole; (b) disclosure to the parolee of evidence against
him; (c) opportunity to be heard in person and to present witnesses
and documentary evidence; ( d) the right to confront and
eross-examine adverse witnesses (unless the hearing officer specifieally
finds good cause for not allowing confrontation); (e) a "neutral
and detached" hearing body such as a traditional parole board,
members of which need not be judicial officers or lawyers; and
(f) a writ.ten statement by the factfinders as to the evidence relied
on and reasons for revoking parole. Morrissey v. Brewer, p. 471.
PEACEFUL PICKETING. See Constitutional Law, III, 5-6.
PENALTIES. See Constitutional Law, II, 2; Criminal Law, 1.
PENINSULA TERMINAL CO. See Administrative Procedure,
1-5; Interstate Commerce Commission, 1-5; Judicial Review,
2- 6.
PENITENTIARIES. See Constitutional Law, I, 1- 2, 4; Paroles,
1-3.
PENNSYLVANIA. See Grand Juries, 1.
PENTAGON PAPERS. See Appeals, 2- 3; Constitutional Law,
VII, 2-6; Grand Juries, 2-3, 5.
PERFORMANCE OF OFFICIAL ACTS. See Appeals, 1; Constitutional
Law, VII, 1.
PERSONAL-ENTRY RIGHT. See Constitutional Law, III, I;
Immigration and Nationality Act; Judicial Review, 1.
PETITIONS FOR INCLUSION. See Administrative Procedure,
1-5; Interstate Commerce Commission, 1-5; Judicial Review,
2-6.
PHOTOGRAPHS. See Constitutional Law, III, 7.
INDEX
PICKETING. See Constitutional Law, III, 5-6.
PICTURES. See Constitutional Law, III, 7.
POETRY. See Constitutional Law, III, 7.
973
POLICE INVESTIGATIONS. See Constitutional Law, I, 3; II,
1; Criminal Law, 2-4; Evidence, 1-2; Procedure, 1.
POLICE OFFICERS. See Confessions; Constitutional Law, I,
1-2, 4; IV, 1; Paroles, 1-3.
POLITICAL ACTIVITIES. See Appeals, 1; Constitutional Law,
III, 3; VII, 1; Jurisdiction; Justiciability.
PORTLAND. See Administrative Procedure, 1-5; Interstate Commerce
Commission, 1-5; Judicial Review, 2-6.
PORTRAYALS OF SEX. See Constitutional Law, III, 7.
POSSESSORY CLAIMS. See Constitutional Law, V; Evidence, 3.
POSTAGE RATE LEGISLATION. See Appeals, l; Constitutional
Law, VII, 1; Jurisdiction.
POST-CONVICTION RELIEF. Sec Constitutional Law, 1, 3;
II, l; Criminal Law, :2-4; Evidence, 1-2; Procedure, 1.
PRELIMINARY HEARINGS. See Constitutional Law, VI;
Mootness; Witnesses.
PREPARATIONS FOR COMMITTEE MEETINGS. See Appeals,
2-3; Constitutional Law, VII, 2-6; Grand Juries, 2-3, 5.
PRETRIAL STATEMENTS. See Constitutional Law, I, 3; II,
1; Criminal Law, 2- 4; Evidence, 1- 2; Procedure, 1.
PRETRIAL SUPPRESSION HEARINGS. See Constitutional
Law, V; Evidence, 3.
PRIOR HEARINGS. Sec Constitutional Law, I, 5; Procedure, 3.
PRIOR RESTRAINTS. See Constitutional Law, III, 2, 4; IV, 2.
PRIOR TESTIMONY. See Constitutional Law, VI; Mootness;
Witnesses.
PRISONERS. See Constitutional Law, I, 1-2, 4 ; Paroles, 1- 3.
PRISON HOSPITALS. See Confessions; Constitutional Law,
IV, 1.
PRIVACY OF COMMUNICATIONS. See Grand Juries, 1.
PRIVATE PUBLICATION. Sec Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2- 3, 5.
974 INDEX
PRIVILEGE. See Appeals, 1; Constitutional Law, VII, 1;
Jurisdiction.
PROBABLE CAUSE. See Constitutional Law, V; Evidence, 3.
PROBATIONARY PERIODS. Soc Constitutional Law, I, 5; Ill,
9; Procedure, 2-3.
PROCEDURAL DUE PROCESS. See Constitutional Law, I, 3;
II, 1; III, 2, 4, 9; IV, 2; Criminal Law, 2-4; Evidence, 1-2;
Procedure, 1-3.
PROCEDURE. See also Administrative Procedure, 1-5; Confessions;
Constitutional Law, I, 1-5; II, 1; III, 3, 9; IV, 1;
V; Criminal Law, 2-4; Evidence, 1-3; Grand Juries, 1; Interstate
Commerce Commission, 1-5; Justiciability; Judicial Review,
2-6; Paroles, 1-3.
1. Due process-Other shotgun improperly admitted into evidence-
Claim not raised below.-Petitioner's due process claim as
to the shotgun was not previously raised and therefore is not properly
before this Court, and in any event the introduction of the
shotgun does not constitute federally reversible error. Moore v.
Illinois, p. 786.
2. Professor's one-year employment contract not renewed-College's
de facto tenure policy.-Though a subjective "expectancy"
of tenure is not protected by procedural due process, respondent's
allegation that the college had a de facto tenure policy, arising
from rules and understandings officially promulgated and fostered,
entitled him to an opportunity of proving the legitimacy of his
claim to job tenure. Such proof would obligate the college to
afford him a requested hearing where he could be informed of the
grounds for his nonretention and challenge their sufficiency. Perry
v. Sindermann, p. 593.
3. Teacher hired for one academic year-Not rehired for ensuing
year-No prior hearing.-The Fourteenth Amendment does not
require opportunity for a hearing prior to the nonrenewal of a
nontenured state teacher's contract, unless he can show that the
nonrenewal deprived him of an interest in "liberty" or that he had
a "property" interest in continued employment, despite the lack
of tenure or a formal contract. Here the nonretention of respondent,
absent any charges against him or stigma. or disability foreclosing
other employment, is not tantamount to a deprivation of "liberty,"
and the terms of his employment accorded him no "property" interest
protected by procedural due process. Board of Regents v. Roth,
p. 564.
INDEX 975
PROFESSORS. See Constitutional Law, III, 9; Procedure, 2.
PROPRIETARY CLAIMS. See Constitutional Law, V; Evidence,
3.
PROSECUTORS. See Constitutional Law, I, 3; II, 1; Criminal
Law, 2-4; Evidence, 1-2; Procedure, 1.
PROTECTED INTERESTS. See Constitutional Law, I, 5; Procedure,
3.
PROTECTED LEGISLATIVE ACTS. See Appeals, 2-3; Constitutional
Law, VII, 2--6; Grand Juries, 2-3, 5.
PROTECTION OF SOURCES. See Constitutional Law, III, 8;
Grand Juries, 4.
PROTECTIVE CONDITIONS. See Administrative Procedure,
1-5; Interstate Commerce Commission, 1-5; Judicial Review,
2-6.
PUBLICATION OF PENTAGON PAPERS. See Appeals, 2-3;
Constitutional Law, VII, 2-6; Grand Juries, 2-3, 5.
PUBLIC INTEREST. See Administrative Procedure, 1-5; Interstate
Commerce Commission, 1-5; Judicial Review, 2-6.
PUBLIC OFFICIALS. See Appeals, 1; Constitutional Law, VII,
1 ; Jurisdiction.
PUBLIC RECORD. See Appeals, 2--3; Constitutional Law, VII,
2--6; Grand Juries, 2-3, 5.
PUBLIC SCHOOLS. See Constitutional Law, I, 5; III, 5-6, 9 ;
Procedure, 2--3.
PUBLIC STATEMENTS. See Constitutional Law, III, 9; Procedure,
2.
PUBLIC UTILITY COMMISSIONS. See Administrative Procedure,
1-5; Interstate Commerce Commission, 1-5; Judicial
Review, 2-6.
PUBLISHERS. See Appeals, 2-3; Constitutional Law, VII, 2-6;
Grand Juries, 2-3, 5.
PUNISHMENTS. See Constitutional Law, VI ; Mootness;
Witnesses.
QUALIFIED TESTIMONIAL PRIVILEGE. See Constitutional
Law, III, 8; Grand Juries, 4.
RAILROAD MERGERS. See Administrative Procedure, 1-5 ;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
976 INDEX
RAPE. See Constitutional Law, II, 2; Criminal Law, I.
RATES. See Administrative Procedure, 1-5; Interstate Commerce
Commission, 1-5; Judicial Review, 2-6.
RE-EMPLOYMENT. See Constitutional Law, I, 5; III, 9; Procedure,
2-3.
REFUSAL TO TESTIFY. See Grand Juries, 1.
REGENTS. See Constitutional Law, I, 5; III, 9; Procedure, 2-3.
REHABILITATION. See Constitutional Law, I, 1-2, 4; Paroles,
1-3.
RELIEF. See Constitutional Law, Ill, 2-4; IV, 2; Justiciability.
REPORTER'S PRIVILEGE STATUTES. See Constitutional
Law, III, 8; Grand Juries, 4.
REPRISALS. See Constitutional Law, III, 9; Procedure, 2.
REPUBLICATIONS. See Appeals, 2-3; Constitutional Law, VII,
2-6; Grand Juries, 2-3, 5.
RES JUDICATA. See Constitutional Law, VI; Mootness;
Witnesses.
RETAINED CONTROL. See Taxes, 1-3.
RETALIATION. See Constitutional Law, III, 9; Procedure, 2.
RETRIBUTION. See Constitutional Law, II, 2; Criminal Law, 1.
REVOCATION OF PAROLE. See Constitutional Law, I, 1-2, 4;
Paroles, 1-3.
RIGHT OF FREE SPEECH. See Constitutional Law, III, 9;
Procedure, 2.
RIGHT TO CONFRONT WITNESSES. See Constitutional Law,
I, 1-2, 4; VI; Mootness; Paroles, 1-3; Witnesses.
RIGHT TO RECEIVE INFORMATION. See Constitutional Law,
III, 1; Immigration and Nationality Act; Judicial Review, 1.
RIGHT TO VOTE STOCK. See Taxes, 1-3.
RIVERGATE. See Administrative Procedure, 1-5; Interstate
Commerce Commission, 1-5; Judicial Review, 2-6.
ROCKFORD. See Constitutional Law, III, 6.
SALE OF STOCK. See Taxes, 1-3.
SCENE OF THE CRIME. See Constitutional Law, I, 3; II, 1;
Criminal Law, 2-4; Evidence, 1-2; Procedure, 1.
INDEX 977
SCHOOLS. See Constitutional Law, I, 5; III, 2, 4-6, 9; IV, 2;
Procedure, 2-3.
SCOPE OF PRIVILEGE. See Appeals, 1; Constitutional Law,
VII, 1 ; Jurisdiction.
SDS. See Constitutional Law, III, 2, 4; IV, 2.
SEARCH AND SEIZURE. See Constitutional Law, V; Evidence,
3.
SECOND-OFFENDER SENTENCES. See Constitutional Law,
VI; Mootness; Witnesses.
"SECRET" DOCUMENTS. See Appeals, 2-3; Constitutional
Law; VII, 2-6; Grand Juries, 2-3, 5.
SECURITIES. See Taxes, 1-3.
SELECTIVE EXCLUSIONS. Sec Constitutional Law, III, 5-6.
SELF-CENSORSHIP. See Constitutional Law, III, 8; Grand
Juries, 4.
SENATORS. See Appeals, 1-3; Constitutional Law, VII, 1-6;
Grand Juries, 2-3, 5; Jurisdiction.
SENTENCES. See Constitutional Law, I, 1-2, 4; II, 2; VI; Criminal
Law, 1; Mootness; Paroles, 1-3; Witnesses.
SEPARATION OF TEACHERS. See Constitutional Law, I, 5;
Procedure, 3.
SERIOUS ART. See Constitutional Law, III, 7.
SETTLORS. See Taxes, 1-3.
SEX AND OBSCENITY. See Constitutional Law, III, 7.
SHARE OF MARKET. See Administrative Procedure, 1-5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
SHARES OF STOCK. See Taxes, 1-3.
SHIPPERS. See Administrative Procedure, 1-5; Interstate Commerce
Commission, 1- 5; Judicial Review, 2- 6.
SHOTGUNS. See Constitutional Law, I, 3; II, 1; Criminal Law,
2---4; Evidence, 1-2; Procedure, 1.
SIXTH AMENDMENT. See Constitutional Law, VI; Mootness;
Witnesses.
SMALL BUSINESSES. See Taxes, 1-3.
SOURCES OF INFORMATION. See Constitutional Law, III, 8;
Grand Juries, 4.
978 INDEX
SOUTHERN PACIFIC RAILROAD. See Administrative Procedure,
1-5; Interstate Commerce Commission, 1-5: Judicial
Review, 2-6.
SOUTHERN PACIFIC TRANSPORTATION CO. See Administrative
Procedure, 1-5; Interstate Commerce Commission,
1-5; Judicial Review, 2-6.
SOVEREIGNTY. See Constitutional Law, III, 1; Immigration
and Nationality Act; Judicial Review, 1.
SPECIFIC FUTURE HARM. See Constitutional Law, III, 3;
J usticiabili ty.
SPEECH OR DEBATE CLAUSE. See Appeals, 1-3; Constitutional
Law, VII, 1-6; Grand Juries, 2--3, 5; Jurisdiction.
STAFF PERSONNEL. See Appeals, 2--3; Constitutional Law,
VII, 2-6; Grand Juries, 2--3, 5.
STANDING TO OBJECT. See Constitutional La.w, V; Evidence,
3.
STATE DEPARTMENT. See Constitutional Law, III, 1; Immigration
and Nationality Act; Judicial Review, 1.
STATE POLICE. See Constitutional Law, V; Evidence, 3.
STATE PRISON AUTHORITIES. See Constitutional Law, I,
1-2, 4; Paroles, 1--3.
STATE-SUPPORTED COLLEGES. See Constitutional Law, Ill,
2, 4; IV, 2.
STATE UNIVERSITIES. See Constitutional La.w, I, 5; III, 9;
Procedure, 2-3.
STATUTORY EXCLUSION OF ALIENS. See Constitutional
Law, III, 1; Immigration and Nationality Act; Judicial
Review, 1.
STATUTORY INVALIDITY. See Appeals, 1; Constitutional
Law, VU, 1; Jurisdiction.
STIFFER PUNISHMENTS. See Constitutional Law, VI; Mootness;
Witnesses.
STOCKHOLDERS. See Taxes, 1-3.
STUDENT ACTIVITIES. See Constitutional Law, III, 2, 4;
IV, 2.
STUDENTS FOR A DEMOCRATIC SOCIETY. See Constitutional
La.w, III, 2, 4; IV, 2.
INDEX 979
SUBCOMMITTEE MEETINGS. See Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2-3, 5.
SUBPOENAS. See Appeals, 2-3; Constitutional Law, III, 8;
VII, 2-6; Grand Juries, 2-5.
SUMMARY JUDGMENTS. See Appeals, I; Constitutional Law,
I, 5; VII, I; Jurisdiction; Procedure, 3.
SUPPRESSION MOTIONS. See Constitutional Law, V; Evidence,
3.
SUPPRESSION OF EVIDENCE. See Constitutional Law, I, 3;
II, 1; Criminal Law, 2-4; Evidence, 1-2; Grand Juries, 1;
Procedure, L
SURVEILLANCES. See Constitutional Law, III, 3; Justiciability.
SWEDEN. See Constitutional Law, VI; Mootness; Witnesses.
SWITCHING RAILROADS. See Administrative Procedure, 1-5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
TAVERNS. See Constitutional Law, I, 3; II, I; Criminal Law,
2-4; Evidence, 1-2; Procedure, 1.
TAXES.
I. Irrevocable inter vivos trust-Retention of managerial powers-
Inclusion of value of trust property in decedent's gross estate.-
Decedent did not retain the "right.," within the meaning of
§ 2036 (a) (2) of the Internal Revenue Code of 1954, to designate
who was to enjoy the trust income. A settlor's retention of broad
management powers does not necessarily subject an inter vivos
trust to the federal estate tax. United States v. Byrum, p. 125.
2. Irrevocable inter vivos trust-Retention of voting control.-
Decedent's voting control of the stock did not constitute retention
of the enjoyment of the transferred stock within the meaning of
§ 2036 (a) (I) of the Internal Revenue Code of 1954, since the
decedent had transferred irrevocably the title to the stork and
right to the income therefrom. United States v. Byrum, p. 125.
3. Irrevocable inter vivas trust-Right to vote a majority of
shares.-In view of legal and business constraints applicable to the
payment of dividends, especially where there are minority storkholders,
decedent's right to vote a majority of the shares in these
corporations did not give him a de facto position tantamount to
the power to accumulate income in the trust. United States v.
Byrum, p. 125.
TEACHERS. See Constitutional Law, I, 5; III, 9; Procedure, 2--..'I.
980 INDEX
TEMPORARY VISAS. See Constitutional Law, III, 1; Immigration
and Nationality Act; Judicial Review, 1.
TENNESSEE. See Confessions; Constitutional Law, IV, l; VI;
Mootness; Witnesses.
TENURE. See Constitutional Law, I, 5; III, 9; Procedure, 2-3.
TERMINAL FACILITIES. See Administrative Procedure, 1-5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
TESTIMONIAL PRIVILEGE. See Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2-3, 5.
TESTIMONY, See Constitutional Law, I, 3; II, l; III, 8; VI;
Criminal Law, 2-4; Evidence, 1-2; Grand Juries, 4; Mootness;
Procedure, 1; Witnesses.
TEXAS. See Constitutional Law, II, 2; III, 9; VI; Criminal
Law, 1; Mootness; Procedure, 2; Witnesses.
THREE-JUDGE COURTS. See Administrative Procedure, 1-5;
Constitutional Law, III, I; Immigration and Nationality
Act; Interstate Commerce Commission, 1-5; Judicial Review,
1-6.
"TOP SECRET" DOCUMENTS. See Appeals, 2-3; Constitutional
Law, VII, 2-6; Grand Juries, 2- 3, b.
TRACKAGE RIGHTS. See Administrative Procedure, 1-5; Interstate
Commerce Commission, 1-5; Judicial Review, 2-6.
TRANSACTIONAL IMMUNITY. See Grand Juries, 1.
TRANSCRIPTS. See Constitutional Law, VI; Mootness;
Witnesses.
TRANSFER OF STOCK. See Taxes, 1-3.
TRANSPORTATION ACTS. Sec Administrative Procedure, 1-,5;
Interstate Commerce Commission, 1-5; Judicial Review, 2-6.
TRIALS. See Constitutional Law, I, 3; II, 1; V; VI; Criminal
Law, 2-4; Evidence, 1-3; Mootness; Procedure, 1; Witnesses.
TRUSTEES. See Taxes, 1-3.
TRUST PROPERTY. See Taxes, 1-3.
UNAUTHORIZED INTERCEPTIONS. See Grand Juries, 1.
UNAVAILABILITY OF WITNESSES. See Constitutional Law,
VI; Mootness; Witnesses.
INDEX 981
UNCORRECTED FALSE EVIDENCE. See Constitutional Law,
I, 3; II, l ; Criminal Law, 2-4; Evidence, 1-2; Procedure, 1.
UNDERGROUND NEWSPAPERS. See Constitutional Law,
III, 7.
UNEQUAL PENALTIES. See Constitutional Law, II, 2; Criminal
Law, 1.
UNEQUAL TREATMENT. See Constitutional Law, III, 5.
UNION PACIFIC RAILROAD. See Administrative Procedure,
1-5; Interstate Commerce Commission, 1-5; Judicial Review,
2-6.
UNITED STATES SENATORS. See Appeals, 1-3; Constitutional
Law, VII, 1-6; Grand Juries, 2-3, 5; Jurisdiction.
UNIVERSITIES, See Constitutional Law, I, 5; Procedure, 3.
UNIVERSITY STUDENTS. See Constitutional Law, III, 2, 4;
IV, 2.
UNLISTED CORPORATIONS. See Taxes, 1--3.
UNUSUAL PUNISHMENT. See Constitutional Law, II, 2; Criminal
Law, 1.
VAGUENESS. See Constitutional Law, III, 6.
VALIDITY OF STATUTES. See Appeals, 1; Constitutional Law,
VII, I; Jurisdiction.
VIETNAM WAR. See Appeals, 2-3; Constitutional Law, VII,
2-6; Grand Juries, 2-3, 5.
VIOLATIONS OF PAROLE. See Constitutional Law, I, 1-2,
4; Paroles, 1--3.
VIOLENCE. See Constitutional Law, III, 3; Justiciability.
VISAS. See Constitutional Law, III, 1; Immigration and Nationality
Act; Judicial Review, 1.
VOID FOR VAGUENESS. See Constitutional Law, III, 6.
VOTll{G CONTROL OF STOCK. See Taxes, 1-3.
WAIVER PROCEDURE. See Constitutional Law, III, 1; Immigration
and Nationality Act; Judicial Review, 1.
WARRANTS. See Constitutional Law, V; Evidence, 3.
WHISKEY. See Constitutional Law, V; Evidence, 3.
WIRETAPS. See Grand Juries, 1.
982 INDEX
WISCONSIN. See Constitutional Law, I, 5; III, 7; Procedure, 3.
WISCONSIN STATE UNIVERSITY. See Constitutional Law, I,
5; Procedure, 3.
WITNESSES. See also Appeals, 2-3; Constitutional Law, I, 1---4;
II, I; III, 8; VI; VII, 2-6; Criminal Law, 2-4; Evidence, 1-2;
Grand Juries, 1-5; Mootness; Paroles, 1-3; Procedure, 1.
First conviction voided-Victim, previous witness, moved p ermanently
to ioreign country-Unavailable during second trial.- Upon
discovering that a State's witness had removed himself permanently
to a foreign country, the State of Tennessee was powerless to compel
his attendance at respondent's second trial; the resultant predicate
of unavailability was sufficiently strong not to warrant a
federal habeas corpus court's upsetting the State's determination
that the witness was not available. Mancusi v. Stubbs, p. 204.
WORDS AND PHRASES.
1. "[E]njoyment of the property" transferred. Internal Revenue
Code of 1954, § 2036 (a) (1); 26 U. S. C. § 2036 (a) (1).
United States v. Byrum, p. 125.
2. "[T]he right, either alone or in conjunction with any person,
to designate the persons who shall ... enjoy . . . the income therefi
·om." Internal Revenue Code of 1954, § 2036 (a) (2); 26 U. S. C.
§ 2036 (a) (2). United States v. Byrum, p. 125.
WOUNDED PRISONERS. See Confessions; Constitutional Law,
IV, 1.
U, S. GOVERNMENT PRINTING OFFICE, 1973 0 - 470-472
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